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CONFEDERATION
LAW OF CANADA, &c.

8 3340.

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CONFEDERATION

LAW OF CANADA

PRIVY COUNCIL CASES ON
THE BRITISH NORTH-AMERICA ACT, 1867;

AND

THE PRAOTIGE ON SPECIAL LEAVE TO APPEAL.

THERE BEING ADDED
CONTAINING

(1) THE IMPERIAL STATUTES AFFECTING CANADA AND THE

COLONIES IN GENERAL.

(2) THE "JUDICIAL COMMITTEE ACTS": WITH NOTES.

(3) THE CANADIAN LIQUOR PROHIBITION CASE, 1895-(5, &c.

GERALD JOHN WHEELER, M.A., LL.B.,

Of Lincoln's Inn, Barrister-at-Law.

EYRE AND SPOTTISWOODE,

05(»ucv*mncnt, Sum, n»ti» (JScncx-nl VuliHolicre,
LONDON— EAST HAEDING STREET, FLEET STEEET, K.C,

KYIIE AND SPOTTISWOODE,

lief Majesty's Printers,

U.nVNS I'AltK IIOAII, HAfKNKV, N H,

ist

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( V )

PREFACE.

I HAVE oiidcavouvodin this hook to prosont a viow of the
various stops towards tlio confederation of the provinces
of Canada taken hy the Imperial (lovernment, as well
as hy the Legislatures of the Dominion and Provinces
themselves. It has also heen my ohject to set forth as
fully as possihle the decisions of the Judicial Committee
of the Privy Council hearing on the confederation policy
and constitution generally of the Dominion. Under
each section of the British North America Act, 1807, it
will ho found that notes arc given of aJl the leading
appeals and petitions ; and following the section which
is the ruling one in the cases report d, the judjT^raent
will be found to he given in full.

liie yearning ahroad for confederatio]i e^ihcr of the
whole British Empire, or of parts of it — i.e., confedera-
tion of Australasia : or of South Africa : or of groups of
Islands — appears to grow in intensity daily. The pro-
vinces of Canada have led the way, and the Act
creating their confederation hasi been interpreted by
numerous decisions of the highest Court of Appeal for
the Colonial Empire — the Judicial Committee of Her
Majesty's Privy Council — until now, after nearly
30 years' examination of the British North America
Act, the respective powers of the Dominion as the
Supreme Authority on the one hand, and of the Pro-
vinces, Supreme in their local districts on the other,
have been clearly expounded and settled in many direc-
tions. The leading appeal which has gone so far to-
wards the settlement of the vexed liquor question and
prohibitory legislation generally, decided in the Privy
Council in the summer of this year, has, at last, drawn

WJ'np.TFnjr— -;»^j«.!-j'r7i^ ». « JW^TIT-.^

PREFACE.

a dividing liiK^ hctwcon the respective powers of the
Dominion and the Provincial Legislatures. The divid-
ing line fixed may not be considered appropriate to
other c;;nfederations ; but at least a substantial view of
"what has been decided as to the confederation of British
North America is now obtainable in a convenient form.

Ine Manitoba School cases following Section 93 of
the British North America Act, 1867, and the Manitoba
Act of 1870; and another decision of the Judicial
Committee— The New Brunsv/ick School question,
" Maher v. ToAvn of Portland " — which has not been
hitherto reported, are dealt with in this volume.

The Copyright Acts have been grouped together ; and
the American Copyright Act as amended in accordance
with the Berne Convention is included.

Confederation must be affected more or less by
Imperial Acts : these, chiefly as they concern Canada,
but also because they affect the British-Colonial World
at large, are given in Appendix A. Some repealed Acts
are also referred to as evidence of what the previous law
was ; and because they are out of print and difficult to
obtain. Each Act contains a head-note stating in what
way the Act has been repealed or amended by subse-
quent legislation. There is a summary of the Merchant
Shipping Act, 1891', except where the sections expressly
deal with the Colonies : These are printed verbatim ;
and distinguished bv side-notes. To each section there
is added a reference to the same section m the previous
Shipping Act or Acts. By means of this arrangement,
as well as by the index, under the words " Statutes
cited," any section of the old repealed Acts which has
been incorporated into the Act of 1891 can be at once
found. The value of tliis will be recognised when it is
remembered that the Act of 1891 is a consolidating
Act ; its sections being bodily transferred from the old
Acts. Cases have decided Avhat a particular section in a

mmmmmim

mm.

PllEKACE.

])i'evious Act meant ; and linclini^ the section in the ^Vct
of 1891', the case applies.

Confederation cannot be said to be complete without
the knowledge of the Bight of Appeal to Her Majesty's
Privy Council, therefore there will be found to bo set
forth, in Appendix B, the "Judicial Committee Acts,"
with notes of the right of appeal from every colony, and
place where the " Foreign Jurisdiction Act, 1890," is in
operation. The notes are arranged alphabetically, and
the full text of the last-named Act is given.

Notes of cases under Section 101 of the British North
America Act are given, shewing (1) In what class of
case Special Leave to Appeal has been recommended l)y
the Judicial Committee : (2) Where Special Leave to
Appeal has been refused : and (3) If Leave is granted,
what conditions may be imposed by the Committee.

The first part of the book was printed before the
arguments in the Liquor Prohibition case, 1895-6, were
hoard; but on further consideration the publication Avas
delayed, in order that the judgment might be included.

The case, Avith the arguments summarized from the
transcript of the shorthand writer's notes, will be found
in Appendix C. This part of the book also contains
the case decided in July 1896, dealing with the Powers
of Colonial Parliaments to arrest and imprison for
Contempt of Parliament.

Lastly, in the Index, under the words "Statutes cited,"
will be found every Act referred to in this volume.

My earnest hope is that the work will be found
accurate and impressed with that standard of practical
utility which the Publishers intended, and which I
have endeavoured to carry out.

GERALD JOHN WHEELER.
13, Old Square,

Lincoln's Inn, 1896.

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( i^ )

CONTENTS.

PAGE

Preface --------... y

Abbrevititions xi

Cases, Table of - xv

Table of Sections of British North America Act, 1HG7 - - xxxii

Table of Statutes, &e. xxxviii

Britisli North America :

The Act, 1867, with notes of cases to each Section ; the im-
portant cases being given in full - - - 1-553

The Act, 1868 553

1871 553

1875 - - 555

1886 555

1895 555

Manitoba Act of 1870, with the School cases in full — one

never before reported 369

Rupert's Land, 1868, Act, extract from .... 553

Behring Sea Award Act - 910

American Copyright Act 875

Borne International Convention Act ----- 868

British Copyright Acts 846

Canada Copyright Acts ------ 855-857

Merchant Shipping Act, 1894 927

Practice of the Privy Council on Special Leave to appeal - 410-482

Quebec Resolutions 746

Appendix A : —

Containing the Imperial Acts which have in the past, or do

now affect Canada and other Colonies - 556-1004

See List of Acts.
Appendix B : —

Containing, first, the Acts constituting the Judicial Com-
mittee of the Privy Council 1005

Secondly, Notes of the Right of Appeal fiom Every Colony,

&c. 1009

Appendix C : —

Judgment and Argument in the Licpior Pvohibition
Case of 1895-6, and other cases: Including the Pro-
vincial House of Assembly's Privileges and Immuni-
ties Case - - - 1042

Index 1089

S 2340.

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( xi )

ABBREVIATIONS IN THE CITATION

OP THE

VARIOUS COURTS AND LAW REPORTS.

A.C. [year], Law Reports Appeal Cases since 1890.

App. Cas., Law Reports Appeal Cases up to 1890.

Bl. Com., Blackstono's Commentaries.

Blue Book (Prov. Leg. Corresp.), Correspondence of Ministers re Legislative Enact-
ments of the Provinces of Canada, to be seen at the office of the High Com-
missioner for Canada, Victoria Street, S.W.

Bri. Col., British Colonies.

B.B., British Bechuanaland.

B.N.A. Act, British North America Act.

Bah. L., Bahamas Law.

Bar. Law, Barbados Law.

C, Old Province of Canada.

C.B.N.S., Common Bench New Series Reports.

C. of C.P., Code of Civil Procedure.

C, J., Chief Justice.

C. Rob., Christopher Robinson's Admiralty Reports.

C.S.B.C, Consolidated Statutes of British Columbia.

C.S.L.C, Consolidated Statutes of Lower Canada.

Can. Dominion of Canada.

Can. Gaz,, Canadian Gazette newspaper, London.

Can. Year Book, Canadian Statistical Year Book issued by the Department of
Agriculture.

Cashels' Dig., Cashels' Digest of Canadian Supreme Court Cases.

Ch., Charter.

CI. Col. Law, Clark's Colonial Law.

Col. Off. Lib., Colonial Office Library.

Com. Jour., English House of Commons Journals.

Con. Sta. Can,, Consolidated Statutes of Canada.

Cons. Lim., Constitutional Limitations.

Corp., Corporation.

Cowp., Cowper's Reports.

Cranch, Cranch's United States Supreme Court Reports.

Grim. Pro. Act, Criminal Procedure Act.

Ct. App., Court of Appeal.

Ct. N.B., Court of New Brunswick.

Ct. Q.13., Court of Queen's Bench.

(D.), Dominion Act.

East, East's Reports.

Ex D., Law Reports, Exchequer Division.

F.O.L., Foreign Office Letter.

Gr. (or Grant), Grant's Chancery Reports, Upper Canada.

Grant's Ch. R., ibid.

b 2

iu«llilllKIIJii*!i>LlJ .^.iiamtnqiipfinininini^^

Xll

ABBREV[ATIONS.

H.C., High Court.

H.L., House of Lords,

H.'s T., Hertslet's Commercial Treaties.

How. or Howard, Howard's United States Supreme Court Reports.

J.O., Judge of Appeal, Ontario.

Johns., Johnson's American Reports.

Jur. N.8., Jurist New Series.

Juris. U. Lords, Jurisdiction of the House of Lords.

J., Justice.

J.C, Judicial Committee.

K.B.L.C, King's Bench, Lower Canada.

Knapp, Knapp's Privy Council Reports.

L.C. after a surname, Lord Chancellor,

L.C., Lower Canada.

L.C.C.S., Lower Canada Consolidated Statutes ; C.S.L.C, ditto,

L.C. Jur. (or J.), Lower Canada Jurist.

L.J. Adm., Law Journal Admiralty Reports.

L.T., Law Times Reports.

L.J.P.C, Law Journal Privy Council Reports.

L.P., Letters Patent.

L.R.P.C, Law Reports Privy Council Reports.

Ld. Raym., Lord Raymond's Reports.

Leg. News or Legal News, Reports of that name.

Lon. Gaz., London Gazette.

Macq. H.L., Macqueen's Practice of the House of Lords.

Magis., Magistrate.

Man. L.R., Manitoba Law Reports.

Mon. Q.B., Montreal Queen's Bench Law Reports.

Mon. Sup., Montreal Superior Court Reports.

Moo, P.C, Mooro's Privy Council Reports.

Moo. P.C. N.S., ditto New Series.

N.S., Nova Scotia.

N.S.W., New South Wales.

O.A.R., Ontario Appeal Reports.

0. in C, Order in Council.

O.P.R., Practice Reports, Ontario.

O.R., Ontario Reports.

Oflf. Can. Gaz., Official Canada Gazette published in Canada.

Ont., Ontario.

P., Petition of Appeal presented to Lower Court of intention to Appeal to Her

Miyesty's Privy Council.
P.C., Privy Council.
P. AVill., Peere-Williams's Reports.
Plow., Plowdeu's Reports,
Prac. R., Practice Reports, Ontario.
Prorog., Prerogative.
Prov. Log. Corresp., Correspondence of Ministers re Legi.slntive Enactments of tlie

provinces of Canada. See " Blue Book."
Pugs, and Bur., Pugsley and Burbidge's New Brunswick Reports.
Pugs., Pugsloy's New Brunswick Reports.
Q.B. Quebec, Court of Queen's Bench, Quebec.
Q.B.D., Law Reports, Queen's Bench Division.
Q.B. Ontario. Queen's Bench, Ontario, Reports.
Q.L.R., Quebec Law Reports,
Quo., Quebec.
Rs., Rupees.
R,0,N,W.T,, Revised Ordinances of the North- West Territories,

aB>miWtwfMIMItf|M^MWWIH^inwmiMWMIIIIIiMIINW>'NII|Wli i Hj

ABBREVIATIONS.

Xlll

R.S.C., Revised Statutes of the Dominion of Canada,

R.S.O., Revised Statutes of Ontario.

R.S.N.S., Revised Statutes of Nova Scotia.

R.S.Q., Revised Statutes of Quebec.

Rev. L6galo, Revue Legale, Canadian Reports in French,

Ridg, L, & Sch, Ir, Rep., Ridgeway, Lapp & Schoales Irish Reports,

Russ, & Chesley, Russell and Chesley's Nova Scotia Suoremo Court Reports.

Russ. & 0., Russell and Geldert's Nova Scotia Supremo Court Reports,

Russ, & Goldert, ditto.

S.L.R, Act, Statute Law Revision Act,

S,C,R., Supremo Court of Canada Reports.

S,C.R,U,S,, United States Supreme Courts Reports,

S.C.N.B., Supremo Court, New Brunswick, Reports.

S.C,N.S,W„ Supreme Court, New South Wales,

S,C.N,S,, Supremo Court, Nova Scotia,

S,C, Victoria, Supremo Court, Victoria.

St. R,, Statutory Rules and Orders,

Sup. C, Superior Court,

Times, Times Newspaper Reports.

Tupp,, Tupper's Court of Appeal Reports, Ontario ; early volumes of O.A.R,

Tupper, Lbid.

T,R,, Term Reports or Durnford and East's Reports,

U,C., Upper Canada,

U,C,C,P., Upper Canada Common Pleas Reports.

U.P.CS,, Upper Canada Consolidated Statutes,

U,C.Q,B,, Upper Canada Queen's Bench Reports,

(U,S,), United States Supreme Court,

v., Appealable Value of Question on Appeal to Judicial Committee of Her Majesty's

Council,
Ves, Sr,, Reports of Vesey senior, " '

Vesey, Vesey's Reports.
W, Bl,, Sir William Blackstone's Reports.
W, of N,, Wealth of Nations.
W.R., Weekly Reports.

Wall., Wallace's United States Supreme Court Reports.
Wheat., Wheaton's United States Supreme Court Reports.

EREATA.

p. 6, line 13 (a), for 1028 read )626.

P. 68, line 6 (n), for 91 read 92.

P, 80, line 26 (6), for 3 read 13,

P, 81 , line 32 (a), for Ontario read Quebec.

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( XV )

A TABLE

OF THE

NAMES OF THE CASES EEEERRED TO.

Those marked with largo figures are reported in full.

PAOID

... 71
12, 1079
... 425
... 91
... 479

- 432

87,88
... 410
... 200
... 409
1010, 1017
... 58
... 200
10, 33
419, 470
... 644
... 420
... 741
... 1083
... 424
... 477
... 414
... 256
... 467

Att.-Gen. of British Columbia v. Att.-Gen. of Canada ... 295, 459, 500, 519, 536
,, of Canada, Att.-Gen. of Ontario V. ... ... ... 10,27

„ „ V. Att.-Gen. of Ontario (Local Option) 111, 201, 206, 327, 401

„ „ Att.-Gen. of Ontario v. (Assignments Case)

44, 78, 165, 166, 197, 302, 1067
„ „ and Brewers and Distillers Assoc., Att.-Gen. of Ontario t».

(Great Liquor Case) ... 53, 467, 641, 1042, 1064

„ „ Att.-Gen. of Quebec v. (Church v. Blake) 484, 499, 500, 633

„ „ V. The Four Provinces, Acts 1883-4

64, 123, 144, 162, 1050, 1061, 1055
„ V. Bertrand ... ... ... ... ... 83, 418

„ V. Black ... ... ... ... ... ... ... 284

of Canada y. Flint... ... ... ... ... 68,323,741

,, V. Newman ... ... ... ... ... ... 33

„ D. Corp. of Toronto ... ... ... ... ... 480

A. Ct., QuBhec, the Lake St. Clair t'. ...

Abbot, Burdett v. ...

Abbotts 1^. Macdonald

Aitcheson !-'• Mann

Alexander v.Vye ...

Allan «• Fratt

Allen V. Hanson

,, V. Bedpath ..
Ailing, Sherlock

Alloc Paroo, Reg. y.

Ally, Syed, East Lidia Company «.
Almy f- State of California ...

American Cases ...
Amers, Reg, v.
AsaeB, ^n I'e

Anderson and Remo, Reg. V.
Antig[Ua, -?«»■« Justices of ...
Apollo Candle Co., Powell v....
Aquarium, Royal, V. Parkinson
Ardevol, Santacana V.

Arpin f . Reg.

Arrindell and Downie, /?« «...

Astill and Husband i>. Hallee ...

Atlantic and North-Western Railway Company, Casgrain v.

of Jersey, Esnouf v.

420

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xvi

CASES CITED.

39/5
111, 327

Att.-Gcn. ')f Manitoba, Itrophy c. ... ... ... ... 371,

„ of Niiw Houtli Wales, JFiicleoil )'.

„ of Nova Scotia I'. Gregory ...

,, of Ontario, Att.-( ion. of Canada ('.

„ „ I'. Att.-Gun. of Canada (AKsigiiincnts Caso)

41, 78, 1G,5, ICG, 302,

„ „ V. Att.-Oen. of Canada and tho BruwurH and Uistillors

Association (Liquor Case) ...53, 407, Sll, 1042,

c. Mercer ... 47, 98, 295, 483, 499, 610, ■') 13

„ of Quebec V. Att.-Gon. Dominion (Church v. Bhike) 484, 499, 500,

„ ,, Colonial Uuilding and Investment Co. «'. ... 46,234

„ „ ?;. Gray...

„ „ V. Murray

„ „ V. Queen's Ins. Co. 55, 08, 120 (2nd part), 127 (1st

„ „ V. Reed ... 32 (3rd part), 117, 119 {1st part), 320 (^"d

„ of Victoria, Woolloy t).

Australian Steam Navigation w. Smith
Ava, the, y. " ]?reiihilda" British India Navigation Co. ... ... 431

Aylmer, Lord, Harvey r.

Aylwiu, Cuvillier r. ... ... ... ... ... 397,

376

417
,476
, 401

1067

1004

, 530

, 533

, 258

545

482

part)

525

457

,482

406

Baboo, Gopal Lall Thakoor v. Teluk Chunder Ilai
„ Mootochund, Moofti Mohummud UbdooUah r.
,, of Montreal ('. Sweeny

Baltimore, L'>i'd, Pcnn v. ...

Bank of New South Wales v. Owsten ...

,, of Ontario, /m re

,, of Toronto t'. Lambe ... ... ... 54,68

„ Union, v. Tonnant. See Union.

,, ,, of Canada V. Ogara

BanC[Ue du Peuplo, Exchange Bank of Canada ...

„ D'Hochelaga v. Murray
Barker !'■ City of Fredericton

Barrabool.tho

Barrett, City of Winnipeg c.
Barton v- Taylor ...

Bayley, Oanong «. ...

Beatty, North-West Transportation Company v,
Beaudet, North Shore Railway Company c.
Becket, Grand Trunk Railway Company

Beckfort y. Wade

Beebee Doss, Mohun Lall Sookul V. ...

Belanger t. Caron...

Belford, Smiles

Belisle, L'Union St. .Jacques do Montrejil v.

43, 45, 67, 69, 76, 84,
Bell 'I'el«plione Co., /)i re

Belleau, Reg. f . ...

Bennett i*- Pharmaceutical Association...

Keg. V

Bergeron ('• Lassaiio
Berkley, Wilson i). ...

Bertrand »■ Att.-Gon. Now South Wales

Bickford und Erie and Huron Railway Company i>. Corp.

Bigge, Hill V.

... 424

... 458

... 1006

... 424

... 91

> 75, 113, 129, 200, 1050

... 467

477

... 459
... 329
... 457
... 333, 371, 440
1079, 1082
... 391
... 458
... 478
444, 475
... 1006
... 430

91, 368

127, 147, 264,329, 1048
... 89
... 526
... 200
324, 390
... 203

... 33,418,539

of Chatham ... 479

3yui.-."r.';.i,ii(3)OiB«IWi

MWMMHn

CASES CITEU.

XVU

I'AIIB

" BirkBgate," the 1.17

Birmingham L'liiml (.'i)mjiiiiiy, Wiirwiok Ciiiiiil Coin j'liny c. ... ... 00

Bishop •j'^i^t'i'l !'• JJ'sliup uf '-'"p'jtowii ... ... ... ... "41

Black, -Vtt.-(icii. c. ... ... ... ... ... ... ... liHi

J)ow f. ... ... ... 67 (^ii'l i«irt), ric, 22r), 229 (iHt pint)

Blackbird Criik Miirsli Conipiiiiy, Willfioii c. ... ... ... ... 200

Blackwood, Miiyor of EHsendoii ('. ... ... o25

Blake, C'iuu-ch v. (Att.-Uen. Quuboe o. Atl.-Ciuii. uf (Jiirmda) 181, 19!), 600, ^'i

„ Loughliorough ('. ... ... ... ... ... ... 118

Blanchet, Oimy ('. ... ... ... ... ... ... ... 22

Blouin ''• t.'"i'p- "1" Quu^c ••• ••• ••• •■• •• 120, 1 I'll

Boale I'- i>iL'k.'ii)n ... ... ... ... ... ... ... 4i51

Board of TLHipornlitics, Dobio v. ... ... 49, 124, 232, 272, 328, 538

„ (if Wiii'duiis, Cooley t'. .,, ... ... ... ... 200

Bose Ram Sabuk, Monmuhiiii UoasBO V. ... ... ... ... 430

Boston ''• Lclit-vre ... ... ... ... ... ... ... 425

BoSWell ''• Kilborn... ... ... ... ... ... ... 433

Boucher,/"™ ... ... ... .. ... ... ... 104

Boulton iiiid Algoma Trading Company V. Shoa ... ... ... 481

Bourgoin c La Cumpaguia du Choniin di^ I'ordc Moiitruiil 111, 232, 320,541

Brenhilda v. British India Navigation Company (llio " Ava ") ... 431, 482

British Columbia Towing Company and MoodyviUu Sawmills Company,

Sewell I'. ... ... ... ... ... 322, 451

„ India Steam Navigation Company v. Owners of " Uronliilda " 431, 482

Brome, County of, Cooey v. ... ... ... ... ... lUl, 541, 1047

Brophy ''. Att.-Qcn. of Manitoba ... ... ... ... 333,376

BrOUghtOn, Sinclair J'. ... ... .. ... ... ... 418

Brown v- McLaughan ... ... ... ... ... ... 424

,, Mayor of Montreal v.... ... ... ... ... ... 431

t'. State of Maryland... ... ... ... 58,157,107,216

Bruneau I'. Massue... ... ... .. .. ... ... 22

Bulkeley c Scutz ... ... ... ... ... ... ... 431

Bull f. Wing Chong ... ... ... ... ... 63,122

Burah, Reg. f. ... ... ... ... 22,40,131,248,390,741

Burdett f. Abbot ... ... ... ... ... ... 12,1070

Bury, Forsyth (' ... 307,478

Calder V. Halkot ... ... ... ... ... ... ... 1083

Caldwell y. McLaren ... ... ... ... ... ... 450

California, State of, Almy c. ... .. ... ... ... 58

Callender, Wilson V. .. ... ... ... ... ... 430

Camhernon V. Egroignard ... ... ... ... ... ... 431

Cambridge, /»« ... ... ... ... -. ... ... 396

Camden t'. Home ... ... ... ... ... ... ... 89

Camilleri I'. Fieri ... ... ... ... ... ... ... 435

Campbell ''• Commercial Banking Co.... ... ... ... ... 456

Canada Atlantic liaihvay Company ti. Corp. of Ottawa ... ... ... 403

,, Att.-Geii. of, V. Att.-Gen. of Ontario (Assignments Ca.se)

44, 78, 165, 166, 197, 302, 1007

,, „ ,, „ ,, Local Option Case. See Att.-Gen. v.

„ Central Railway t). Murray ... ... ... ... ... 448

,, North-Wcstern Land Cemipany, Lynch )'. ... ... 76,121

„ Shipping Company, Wilson v. See L;ike St. Clair ... ... 71

Canadian Bank of Commerce V. Lambe .. ... ... ... 113

,, Pacific Railway, Robinson ... ... ... ... ... 453

„ Pacific Railway, Vancouver, City of, i'. ... ... ... 306

■■3.«(iii»*.'a«

XVIU

CASiiS CITED.

Canepa >'. IjiHus ... ... ... ,,. ... ... ... 425

Cape Town, nisliop of, Long y. ... ... ... ... ... 7-ii

Caron, Hulimgor v. ... ... ... ... ... ... ... 22

Carson, f'lai'k r. ... ... ... ... ... ... .. 403

Kiollcy V. ... ... ... ... ... ... 12, 1083

Carter ". MoIboii ... ... ... ... ... ... 280,202,428

Casgrain '•• Atlantif mh\ North-Wustoi'ii Rjiilwiiy Compftny ... ... 407

Central Vi'i'tnonl Kuilwiiy C'onipiviiy, St. John Corp. II. ,,, ... 420,401

,, Riiilwiiy of Quobep, Corp of Quebec )'. ... ... ... ... 462

ChabOt ''■ lif Morpeth ... ... ... ... ... ... 89

Chalexirs liiiy CiiHo... ... ... ... ... ... ... 74

Chandler, Hefi. '■. .. ... ... ... ... ... 220,230

Charlton's Case ... ... ... ... ... ... ... 4i4

Chatham Compuny, Uickford and Erie and Ilui-on liiilway Conipany c, ... 479
Chaudiere Qold Mining Company v. Dcslarats .. ... 45, 40, 234, 242, 243

Chevrier '. R<'g. ... ... ... ... ... ... ... 473

Chinese Ininiigrant Cane ... ... ... ... ... 03,122

ChirP.C '■• Chirac ... ... ... ... ... ... ... 101

Chowdry ''. Muliick ... ... ... ... ... ... loio

Chowdry Roy Prannath !'. Rnnco Surnoraoyee ... ... ... 424

Christian u. Corren ... ... ... ... ... ... 409

Chu Lay, or Wing Ciiong, Bull, II. ... ... ... ... 03,122

Chun Teong Toy '• MuKgrovo ... ... ... ... ... 328

Church I', lilivke (Att.-Gon. Quobce v. Att.-Gon. of Canada) 484, 499, 500, 533

Churchillii.Crca.se.,. ... ... ... ... ... ... 58

Chutraput Singh Doorga «'■ Uwarknnath Ghoso ... ... ... 430

Citizen Insuranco Conipany v. Par.fons... 2, 40, 47, 50, 51, 05, 08, 70, 90, 121, 131,

134, 140, 149, 172, 174, 182, 200, 237, 239, 241, 242, 248, 249, 258, 277,

307, 325, 459, 1046, 1053, 1059, 1002, 1006, 1007, 1008

City of Frcdericton c. Reg. ... ... ... 00, 02, 125, 129, 171, 190

,, of Montreal, Lcnioino y.... ... ... ... ... ... 482

„ „ Lcs EcclesiiLstiqucs do St. Sulpice ... ... ... 442

II „ Longueil Navigation Company ... ,.. ... 60

,. i> Pigeon I ... ... ... ... 161

„ „ Pillow ... ... ... ... ... ... 200

„ of Ottawa, Leprohon f. ... ... ... ... ... 70,319,641

„ of Vancouver V. Canadian Pacific Railway ... ... ... ... 300

„ of Winnipeg II. Barrett ... ... ... ... ...333,371,440

t'. Logan ... ... ... ... ... 333, 371, '140

Clark V. Carson .. ... ... ... ... ... ... 403

„ V. Molyneux ... ... ... ... ,., ... ... 457

Clarke, Schoolbred t;. ... ... ... ... ... 88,321

„ «. Union Fire Insuranco Company ... ,., ,,. ... 246

Clarkson I'- Ryan ... ... ... ... ... ... ... 460

Clement, King v. ... ... ... .. ... ... .. 414

College of Physicians, Reg. c. ... ... ... ... 70,420

Colonial Building and Investment Company v. Att.-Gen. of Quebec... 40, 234, 258

Commercial Bank of South Australia, /?» re ... ... .,, ... §7

,, Banking Company, Campbell v, ... ... ... ... 45(5

„ „ „ Windsor, Town of Windsor y. ... ... 75

Connecticut mid Montreal Life Assurance Company, Moore r. ... ... 453

Cooey t'. County Bromo ... ... ... ... ...161,541,1047

Cook, Rex V. ... ... ... ... ... .. ... 33

Cooley y. Board of Wardeu.s ... ... ... ... ... ___ ^00

Cooper I'- Cooper ... ... .. ... ... ... .. 425

COOte, Keg. f 420

CASKS ciTi;u.

XIX

Corren, f'liriHtinn (».
Corsellis, /« re
CoBsette V- L)uu

Cot6 V- Morgan

Cotmty tli'iincil, Londuii, Kog. V,

Cowan '•• Wright ...

Ciease, Churchill i\

Credit V'iill<'y y. tiri-nt Western Riiilway Company

Cro'xibie <•■• JackKun...
CrobS I'- I'o ^'fiiio ...

Curry f. t'urry

Cushing "■ Uupuy

„ Owens V. ...

Curvillier "• Aylwin

„ Symes v. ...

I'AIlK

... 400

... 424
... 00
... 1083
•i'"',541

... 233

... ... 321

... 510

472

7H, 80, 00, 140, 264, 301, 307, 308, 32li, 1004

22,319

307,406

243,257

DakhO MUBSUmut, Shoo Singh Rai y.

Danaher c. Petors ...
Dansereau, -Ka- /)ar<(i
Darling's Case

Davidson, Queddy Rivor Driving Boom

Reg. V. ...
Dawkins v. Lord Rokoby

Deeming, /» re ...
Delmege, Jonoure I'.

Desbarats, Chaudii^re Gold Mining Company v. ... 45, 46,

D'Hoohelaga, La Banqiio, Goldring V.
„ „ V. Murray ...

De Souza, /» »•« •■■
De Valle, Cross «. ...
Devlin, Ryan i;. ...
Dickson, Boalo V. ...
Diggs f. Wolcott ...
Dill I'. Murphy

Dillets, /» »•«

Direct United States Cable Company v. Anglo-American Telegraph

Dobie I'- Temporalities Board...
Donegani f • Donegani
D'Orliac «• D'Orliac
Doss, Beebeo, Mohun Lall Sookul

,, Hullodhur, Sibnarian Ghose v. ...
Dossee, Monmohini, Bam Sabuk Bose v

Doutrfi, Reg. w. ...

Dow V- Black, Judgment of P.C. 67 ■•
Dowuie and Arrindell, In re, Appeal .,,
Doyle v. Duiferin ...
„ I). Falconer ...
DuflFerifl, Doyle t?. ...
Dnmaresque, Magoons v. ...

Dumonlin «• Langtrey

Dun, Cossctte V.

Dupuy, Gushing v.

Dutton ''• Howell ...

Dwarkanath Ghose, Chutraput Singh Doorga v.

Dyke y. Walford ...

49, 124, 232,

(2nd part), 126, 225,

i'8, 80, 90, 149, 204, 301, 307,

... 462
66, 162
30, 1086
... 28
... 60
... 33
... 1083
... 416
437 556

234, 2\i, 243
... 428
... 450
414, 420
... 510
22, 317
... 451
... 310
... 12
... 416
... 74

272, 328, 538
... 561
... 434
... 430
427, 430
... 430
... 396

229 (iHt part)
... 414
... 126
12, 1083
... 126
... 1006
... 472
... 424

308, 328, 1064
... 10
... 436
... 509

^kita^^M

CASES CITED.

East Inilia Company v. Syed AUy
Eccle&iastiqneS do Sulpieu, City of Montreal c.

Edulgee Byramjee, Kig. v.

Eg^roigUard, Cambernon v. ...
Election Case (Niagara)
„ „ Quebec

Eliza Keith, The

Ely c. Peck

EsnOUfi'- Attorney-General of Jersey ...

Esquimalt and Nanaimo Railway Co., Hoggan v.

Essendon, Mayor i: Blackwood

European and North American Railway r. Thomas, Examined

Evans v. Iludon

,, Laramcc v, ...
Exchange Bank of Canada c. Banque du Peuple

t'. Reg. ...
Export I'U'iiIk'I' Co. of New York's Case

Eyre, Phillips v.

Eyre's (Governor) Case

Fabius, The ... ...

Fabrigas, Mostyn ...
Falconer, Uoyio v....

Falkland Islands Co. w. Reg.

Farwell, Reg. v. ...

Fenno, Veazie Bank i'.
Fenton y. Hampton
Fielding, Thomas i'

Fish, Stevens J'.

Fishmongers' Co., Lyons I'....

Fieri, Camilleri v. ...

Fletcher ''■ Stiite of Rhode Island

Flint, Attorney-General of Canada y. ...

Forget ''• Ostigny ...

Forsjrth i. Bury ...

Frawley, Reg- «• ••■

Fredericton, City of, Barker i'.

„ tJ. Reg. ... ... ... 60, 62, 126,

Fuller, Rail'way Co. ('.

Gagnon, Prince ...
Ganong t'. Bayley ..

Gardner v. Parr

Garrett, Meriwether v.

Gauthier, Sauvageau V.

Gemmill, Sailand t'.

General Council of Medical Education, Leeson v.

Ghose Dwarkanath, Chutraput Singh Doorga V.

GhOSe, Silinarian, i', HuUodhur Doss ...

Gibbon !'• Ogdcn ...

Giesler, Goodwin v.

Gillespie, Merchant's Bank, Halifax, v.

Gilnian ''. City of Philadelphia

Glass, Speaker of the Victorian Legislature i'. ...

Godbout, Grand Trunk Railway Co. f.

Goldie, Smith f. ...

Goldring ». La Banque D'Hocholaga ...

TAIK
... 1009

442

... 109

... 431

22,319

... 319
... 120
... 4GG
... 525
220,231
70,511

257

177

... 31, 288, 293

... 216

... 248,345, 1083

... 28

... 1006
... 10
12, 1083
415,419
... 519
... 121
12

1079

... 253
498

... 435

... 101
... 68, 323, 741

... 428

307, 478
... 126, 154, 325

... 329
129, 171, 196, 200

,.. 200

... 441
... 391
... 224

421, 431
... 94
... 1083
... 436
427, 430
157,219
... 470
87, 741
... 200
... 12
... 434

...88, 90, 01, 474
... 428

■MWHPfMiPP

CASES CITED.

XXI

I'AfiK

Goodhue, /^■ ... ... ... ... ... .. 232,218,541

Goodwin V- Oieslor... ... ... ... ... ... ... 470

Gordon c. Lowther ... ... ... ... ... ... ... 1006

GoSSet y. Howard ... .. ... ... ... ... ...1082

Governor -Oeneral V. Four Provinces, Acts of 1883-4

C4, 123, 144, 1050, 1051, 1053

Grand Trunk Railway v. Beckett ... ... ... ... 444,475

„ „ ^. Godboat ... ... ... ... ... 434

„ „ y. County of Halten ... ... ... ... 480

„ „ V.Jennings ... ... ... ... ... 445

McMillan «. ... ... ... .. ... 479

Gray, Attorney General of Quebec v. ... ... ... ... ... 545

Groat l^orthern Railway Co., North London Railway Co. ('. ... ... 90

„ Western Iteilway Co., Credit Valley Railway Co. ('. ... ... 233

,, „ Insurance Co., Jordan v. ... ... ... ... 458

Green, Holman !'. ... ... ... ... ... ... 73,498

Gregory, Attorney-General of Nova Scotia i'. ... .. ... 395,470

Griffith, Pope i' 322

V. Rioux ... ... ... ... ... ... 161,641

„ Stace V. .. ... ... ... ... ... ... 436

Guay V. Blanchet ... ... ... ... .. ... ... 22

Halket, Calder ('....

Halley, Case of
Halliday, Reg. f. ...

„ United States i'. ...
Hapten, County of, Grand Trunk Railway v.
Hampshire, State of New, Pierce v. ...

Hampton, F^i ton o.
Hanson, Allen y. ...
Hart, Joyces.

„ I'. Corp. of Missisquoi ...
„ Reg. ».
„ Sun Fire Office v.
Harvey y. Lord Aylmer

Hennessy, Tope, Case of ...
Herbert i'. Purchas

Hill^Biggo

Hochelaga, Corp. of, Smart i:

Hodge V. Reg.

... 1083
... 410

... 158

... 62

... 480

... 101

87,88

... 434

... 541

... 105

... 424

12, 47^

10
... 201
50, 62, 63, 109, 124, 135, 147, 150, 153, 154, 161, 166, 191, 200,
248, 294, 324, 327, 329, 741, 1054, 10.56, 1058, 1063, 1069
Hoggan !'• Esqtiimnlt and ^^ naimo Railway Company ... ... ... 466

Holman '•• Green 73,498

Home, Camden I'. ... ... ... ... ... ... ... 89

Hoseinee Begam, Mussumat, Mussumat .lariutool Hutooi c. ... ... 437

Hoskin or Ross c. Hurteau ... ... ... ... ... ... .180

Houston '•• Moore ... .. ... ... ... ... ... 319

Howard, Gossett).... ... ... ... ... ... ... 1082

Howell, Uutton u. ... ... ... ... ... ... ... 10

Hudon, Lvaus I'. ... ... •■■ ... ... ... 70,541

Hudson, United States of Americii y. ... ... ... ... ... 319

HuUodhur Doss, Sibnarian Ghose I'. ... ... ... ... 427,430

Hunter t'. Martin ... ... .■• •■. ... ... .. 319

Huntingdon, Corporation of r. Moir ... ... ... ... 103,203,204

HurteaU, Hoskin or Ross I'.... ... ... .. ... ,.. 48O

Huson I'. Township of South Norwich... ... ... ... 104,195

mm.

imm

■iitaiMMMIMUa

X.vll

CASES CITED,

Indar KnilwaT, Mahnrani V. Jaipal Kunwar, Mnlia, ani
Ingram, Read f. ...

Jackson, Crombie v.

Jaipal KuMVar, Maharani, Maharani Indar Kunwar v.

Japanese Government v. P. & 0. Steam Navigation Co. ...

Jardine ". Lyaii ...

Jariutool Butool, Mussumat V. Mussumat Hoseineo liegura

Jennings, Grand Trunk Railway Company v. ...

Jenonre v. Delmege

Jersey, Att.-Gon. of, Esnouf n.

Johnston v. Minister of St. Andre-ws ...

„ V. Poyntz
Jones, Wetherell u.

Jordan, Great Western Insurance Company v. ...
Joyce f. Hart
Joykissen Mookerjee, Reg. r.

Justices of Antigua, /« re ...
„ of King's, Reg. I'. ...
„ of Sierra Leone, 1'. Rainy
„ „ Ramsay f. ...

I, „ Smith r.

l-AflK

... 437
57

... 321
... 437
... 1031
... 431

437

... 445
437, 45G
... 420
19,405
... 102
... 50
... 458
... 434
... 419
... 420

58, IGl, 172, 10.53
... 412
412, 483
... 414

I !

Keefe I'. McLennan...

Keith, Eliza, The

Kelly "■ Sulivan

Kennedy i^'. Purcell

Kerry Kolitany, Moniram Kolita V

Kielley v. Carson ...

KierzkOWSki v. Grand Junction Railway Company

Kilborn, Boswell I'.

King t'. Clement

Kisto Nauth Roy, ^« »•« ...

Ko-Khine v- Snadden

Kops V- Reg.

Kunwar, Maharani Indar v. Maharani Jaipal Kunwar

186, 1047
... 71
... 396
314, 394
... 428
12, 1083
234, 246
... 433
... 414
... 472
... 424
... 416
... 437

La -Banque D'Hoclielaga, Goldring I'. ...
Lake St. Clair, The, v. A. Ct., Quebec
Lamb "• Bowser
Lambe, Bank of Toronto I'. ...

,, Canadian Bank of Commerce «.

„ Merchants' Bank of Canada v.

„ Molson V. ...
Lambkin i'- South Eivstem Railway Company . . .

Lamoureux f . Molleur

428

249

Landry, Thebergo V.
Lane County v. Oregon
LangloiS, Valin y. ...
Lang^ry, Dumoulin v.

Laramee v. Evans ...

LariOS, Canepa v. ...
LaSSalle, Bergeron v.
Laurent, Lupine V.
Lawless t^. Sullivan

54, 68, 75, 113, 129, 200, 1050
... 113

... 113

... 66, 159, 160
... 423
... 474
... 22, 39, 40, 45, 83, 109, 308, 316, 394, 440

11. 18, 48, 08, 90, 91, 312, 316, 318, 394, 441, 538

... ... 472

267

... 426

... 203

163, 1047

liiM linwm—wiwi ' '

CASES CITED.

XXlll

Leacock, McLaren or Shields

Lechmere, Charlton's Case ..

Leclaire, Mncfarlano t>.

Leeson ". General Council of Medical Education

Lefrancois, Hussell I'.

Lelievre, Boston V.

Lemoine y. City of Montreal

Lenoir w- Hitchie ...

Leprobon I'. Corporation of Ottawa ...

Les Ecclesiastiques de St. Sulpice, City of Montreal v.

Letellier's Case ...
Levien f . Keg.
Levinger v. Reg. ...
Lewin "• Wilson ...
License Cases, U.S.

Lin Sing I'- Washburn
Lindo ". Rodney ...
LiquOV Case, Nova Scotia

64.

License Act, 1883-4 ...

„ Prohibition Case
LiviUS *'• Wontworth
Local Government Board, Reg. v.

„ Option Act Case
Logan, City of Winnipeg u. ...
London County Council, Reg. v.
Long "• Bishop of Cape Town
Longueil Navigation Co. v. City of Montreal
Loughborough f. Blake ...
Low, Routledgo c. ...
Lowther V- Gordon

„ «. Earl of Radnor .. .
L'XJnion St. Jacques do Montreal i'. Belislo

43, 45, 67, 69, 76, 84, 127, 147, 264, 329, 1048
Lupine «• Laurent ,.. ... ... ... ... 103,1047

LutchmeedavamahNaragunty f. VongamaNaidoo ... .. ... 438

Lyall f. Jardine ... ... ... ... ... ... ... 431

Lynch y. Canada N.W. Land Company ... ... ... 76,121

Lyons '■■ Fishmongers' Company ... ... ... ... ... 498

PAflE

... 463

.. 414

420, 432

1083

... 474

... 425

... 482

7, 11,26, 27, 35, 643

... 70,319,641

442

... 28
417

107,418
... 452

... 214

... 63
1006

... 120

123,144, 162, 1050, 1051, 1055

64, 123, 144, 1042, 1064

1000

... 90

10, 27, 111, 201, 205, 327,401

333, 371, 440

... 1083

741

... 06

118

... 1006

... 1082

Macdonald, Abbotts v.

MacDonnell's P. E.
Macfarlane t>. Leclaire
UacLaren, Caldwel 1

„ or Shields ti. Leacock

Maclaughan, Brown ii.
Maclennan, Keefe...
Macqueen f. Reg. •■•
mL&crea,, i^- parte ...

ScClanagan "• St. Ann's United Building Society
McCulloch !'• State of Maryland

McDermott, /» re
McDougall, Reg. V.

,, V. McOreevy ...

McFee, Mowat I'. ...
UcQreevy, McDougall v. ...
McGuire, Wilson V.

... 426

... 121
420, 432

... 450

... 463

... 424

186, 1047

... 477

... 417

... 243

... 325

■ ■■ 413

... 159

... 447

... 74

... 447

... 391

■MM

XXIV

CASES CITED.

McEenzie, North West Transportation Co. i: ...

Whitui'.
McLe&n v. Stewart...

SEcLeod «• New Brunswick Railway Company ...
„ V, Attorney-General of New South Wales
McManamy f- Sherbrooke ...
McMillan v. The Grand Trunk Eailway Company
McMuUen "■ Wadsworth

McNeil, A'l- ?j«W(; ...

Madison, Marbury v.

MagOOnS ''• Dumaresqup

Magura f . Magura

Maharani Indar Eunwar '•. Maharani .laipal Kunwar

Maher ''• Town of Portland ...

Main *•• Stark

Maitland, Tanony Churn J5onnerjee v.

Manitol)a, Attorney-General, Brophy v.

Mann, Aitoheson ...

Manning, Nasmith t).
Marbury «. Madison
Marchand, Ouimct I'.

Maritime Bank of Canada v. Now Brunswick Receiver-

Marois, /« »'c> Examined, Followed
Martin w- Hunter ...
Maryland, State of, Brown ri.

„ „ McCullagh V.

MaSSachUBetts Bay v. The King

„ Thurlow V.

Massue, Bruneau ...

Matheson Bros., /?8 re

MatheWB «<■ Warner

Medical PJduoation, General Council of, Leeson t>.
Mercer, Attorney-General of Ontario v. 47, 98, 295

Merchants' I^ank of Canada v. Lambe

„ „ Moffatt V. ...

„ „ V. Smith ...

„ „ Halifax v. Gillespie

Meriwether, Garrett v.
Middlesex, shcriflf of

Minister of St. Andrews t'. Johnston ...
Missisquoi, Corp. of Hart, i>.
Mofifatt I'. Merchants' Bank ...

Mohr, Reg. y. •••

Mohun Lall SoOkul f. Beebee Doss ...
Moir, Corp. of Huntingdon i'.
MoUeur v. Lamouroux
Molson y- Lambe ...
„ V. Carter ...
MolyneUX, Clark v.

Monckton, /» '•« •••

Monir am Kolita «• Kerry Kolitary

Monk V. Ouimet ...

Monmohini DOBSee, Ram Sabuk Bose I'.

Montaignac ' ■ i^iiitt'i

Montreal, city of, Lemoine v.

„ V. Les Kcclesiafitique.s de St. Sulpice

PAOB

... 182

467

... 473

417

... 139
A. ... 479

257

... 200
... 390
... 1006
... 447
... 437
... 332, 334, 338
... 428
... 438

333, 376

... 91

... 450

... 390

... 284

General 1,7,27,31,32,

109, 292, 480

83, 328

... 319

58,157,197,215

... 325

.,. 1006

...V]101

... 412,414,469

... 1083

, 483, 499, 510, 513, 536

... 113

... 475

65, 75, 299

87, 741

1079, 1082
19, 405
... 541
... 475
... 249
... 430
... 103,203,204

474

... 60, 159, 100

... 286,292,428

... 457

... 390

... 428

284

... 430
... 438
... 482

448

CASES CITED.

XXV

PAOR

Montreal, (-'ity of, Longueil Na\rigation Company I'. ... ... ... OG

„ Pigeon V. ... ... ... ... ... 161

„ „ Pillow V. ... ... ... ... ... 200

„ Mayor of, Springle V. Brown ... ... ... ... 431

„ Ottawa and Occidental Railway Company, Bourgoin v. Ill, 232, 329,

541

,, ratisenger I{.ailway y. Parktr ... ... ... ... 475

Moody ville Sawmill Company v. Sewell ... ... ... 322, 461

Moofti Mohummnd ITbdoollah v. Baboo Mootechund... ... ,.424

Mookerjee Joykissen, Rtg. ('• ... ... ... ... ... 4i9

Mooljee MadOWdaSS, Nathoobhoy Eamdass r>. ... ... ... 1010

Moore ''• Connecticut and Montreal Lift' Assurance Company ... ... 453

,, Houston ('. ... ... ... ... ... ... ... 319

Mootechund Baboo, I'- Moofti Mohummnd UbdooUah ... ... ... 424

Morgan, Coto f. ... ... ... ... ... ... ... go

Morpeth, Chabot !'. ... ... ... ... ... ... so

MOStyn ('. Vabrigius ... ... ... ... ... ... lo

Monsseau, Reed 1'. ... ... ... ... ... ... 536

Mowat ('• McFce ... ... ... ... ... ... ... 74

Mullick, Chowdry i'. ... ... ... ... ... ...1010

Murphy, Dill y ... ... 12

Keg. V. ... ... ... ... ... .„ ... 418

Murray, Attorney-General of Queliec i». ... ... ... ... 482

„ Canada Central Railway Company ti. ... ... ... ... 448

„ le Banque D'Hochelaga ('. ... ... ... ... ... 459

Musgrave v. Puiido ... .. ... ... ... ... lo

Musgrove, Chun Teong Toy V. ... ... ... ... ... .328

Mussumnt DakhO, Sheo Singh Rai I'. ... ... ... ... 462

MuSSUmat JoriutOOl Butool ''• Mussumat Hoseinee Begum ... ... 437

Naragunty Lutchmeedavamah ". Vengama Naidoo ... ... ... 438

Nasmith *'• Manning ... ... ... ... ... ... 450

Natal, Bishop of, I'. Capetown ... ... ... ... ... 741

Nathoobhoy Ramdass !'■ Mooljce Madowda.ss ... ... ... loio

Neo, Ong Cheng, V. Yeap Cheah Nco ... - ... ... ... ... 425

New Brunswick Railway Company, McLeod «. ... ... ... ... 473

„ Receiver-General, Maritime Bank V. 1,7,27,31,32,109,292

Hampshire, StJite of, New York I'. ... ... ... ... 1006

„ „ Peirce y. ... ... ... ... ... 101

South Wales «. Bertrand ... ... ... ... 33,418,639

„ „ McLeod t'. ... ... ... ... ... ... 417

York ti. New Hampshire Stjite ... ... ... ... ... 1006

Newman, Attorney-General of Canada i'. ... ... ... ... 33

Niagara Election Case ... ... ... ... ... 22,319

Falls Park y. Howard ... ... ... ... ... 624

North London Railway Company v. Great Northern Railway Company ... 90

„ Shore Railway Company, Bea, 'etc. ... ... ... ... 478

V. Pion ... ... ... 461, 498

,, West Transportation Company y. ]{eatty ... ... ... ... 458

„ „ „ V. Mackenzie .. ... ... 482

Norwich, South, Township of, Huson I'. ... ... ... 164,195

Nova Scotia, Att.-Gen„ Gregory V. ... ... ... ... 395,476

„ „ Bank, Reg. v. ... ... ... ... ... 31, 293

„ ,, Liquor Act, /m j'f ... ... ... ... ... 126

Obermuller, Retemeyer ti. ... ... ... ... ... ... 411

Ogden, Gibbon ti. ... ... ... ... ... ... 167,219

S 2340. C

Il<1ll*l

IMMMM

xxn

CASES CITED.

Ongf Cheng Neo *'• Yeap Cheah Noo ...

Ontario, Att.-Gen., v. Att.-Gcn. Canada, ffce Canada.

„ „ Mercer v. See Mercer.

,, Province v. Province of Quebec ca.se.s
Option, Loral, Case ... 10, 27, 111, 201, 205, 327, 401,

Oregon Ciiniiiiiny, Lane County ti.
Orillia, Corp. of, Slavin v. ...
Orphan Hoard ;•. Van Rcenen
O'Gara, Union Bank of Canada u.
O'Regan I'. Peters ...
O'Rourke, Reg. ?■. ...

Ostigny, Forget ...

Ottawa and St. Lawrence Railway, Lett v.

„ Corp. of, Canada Atlantic Railway Company V. ...

„ „ Leprohon v,

Ouimet «'• Marcliand

,, Monk V. ...
Owens ''• Cushing ...
Owsten, 15ank of, New ,'<outh Wale." i: ..
Oyster Case, Appeal

459,
164,

PAOK

425

48.1, 64.')

600, 619, 5.36

... 77

167, 187,212

410, 1317

... 467

... 162

... 103

... 428

... 444

... 463

70, 319, 641

.. 284

... 284

22, 319

... 424

... 419

Pacific insurance Company «;. Soule ... ... ... ... ,,,121

Pariente, -laeol) do, /•> par/f ... ... ... ... ... 410

Parkdale, Corp. of, ('. West ... ... ... .. ... ... 469

Parker, Montreal Passenger Railway Company v. ... ... ... 475

Parkinson, Royiil Aquarium y. ... ... ... ... ... 1083

Parr, Gardner v. ... ... ... ... ... ... ... 224

Parsons, Citizens Insurance Company v. ... 2, 46, 47, 50, 54, 65, 68, 76,90,

121, 131, 134, 140, 149, 172, 174, 182, 200, 237, 241, 242, 248, 249,

258, 277, 326, 459, 1045, 1053, 1059, 1062, 1065, 1067, 1008

„ Queen's Insurance Company f. ... ... ...116,270,278

Peak, Shields I'. ... ... ... ... ... ... ... 88

Peck, Ely I'. ... ... ... ... ... ... ... 319

Peirce "• State of New Hampshire ... ... ... ... ,,. lOl

Penn '•• Lord Baltimore ... ..'. ... ... ... ... 1006

Pennsylvania, state of, i-. Wheeling and Bridge Company ... ... 66

Peters, Danaher v. ... ... ... ... ... 66, 162

O'Regan v. ... ... . . ... ... ... 162

Peuple, I5anque du, ExcliRnge Bank of Canada D. ... ... ., 477

Pharmaceutical Association, Bennett I'. ... ... ... ... 200

Philadelphia, City of, Oilman I'. ... ... ... ... ... 200

Phillips '•• Eyre ... ... ... ... ... ... 248, 345, 1083

Philpott !'• St. George's Hospital ... ... ... ... ... 349

Picton, The ... ... ... ... ... ... ... 49

Pigeon !'• City of Montreal ... ... ... ... ... ... 101

Pillow, A'r pnc('p, ana the City of Montreal ... ... ... 60,104,200

Pion, North Shore Railway Company ti. ... ... ... 461,498

Pollard, In re

Pope Hennessy's Case

„ I'. Griffith
Portland, Town of, Maher v.
Foulin, Corporation of Quebec
Powell V. Apollo Candle Company
Foyntz, Johnston r.

Prannath Roy Chowdroy '■• Ranm
Ftatt, Allan f. ...

burnonioyce

... 414

... 28

... 322

333, 334, 338
90, 125, 161

.. 741

... 102

... 424

.■■ 439

■■»h»»«lW

CASES CITED.

XXVll

PAOK

Prince *'■ Gngnon ... ... ... ... ... ... ... 441

Prittie, R«g- " 104, loi

Provinces, I'^our, Dominion v. [Acts of 1883-4] 64, 123, 144, 162, 1060, 1051, 10.56
PulidO, ^lus'gravo t'. ... ... ... ... ... ... 10

Purcell, Kt'inedy v 314,394

Purchas, Hfr'id "• ••• ■•• ••■ •■• ••• ••• ^72

duebec, Att.-Oen. I'. Att.-Gen. of Canada ... ... 484,499,500,633

,, Attorney-Genoral of, Colonial Building and rnvestmont Comimny r. 46

,, ,, P. Gray ... ... ... ... ... 546

„ Central Railway, Quebec Corp. v. ... ... ... ... 462

„ Corp. of, Blouin v. ... ... ... ... ... 120,101

„ Poulin (•. ... ... ... ... . . 90, 125, 161

„ Province «». Corp, of Huntingdon ... ,,. ... ... 163

„ „ Ontiirio Province I ... ... ... 483,545

„ Corp. V. Quebec Central Bailwa^ Company ... ... ... 462

„ Election Petition ... ... ... ... ... 22

flueddy lii^'i' t)i'iving Boom Company ii. Davidson ... ... ... (U;

Queen's insurance Company, Attorney-General of Quebec v. 65, 68, 120 (2nd part),

127 (1st part)
„ u. Parsons ... ... ... 116,270,278

ftuirt '•• The Queen ... ... ... ... 75,86,112,332,636

Radnor, Eii'l of, Lowtiicr ?'. ... ... ... ... ... 1082

Rai Sheo Singh "-Mussumut Dakho... ... ... ... ... 462

Railway Company r. Fuller... ... ... ... ... ... 200

„ Commissioners, South-Ea.st('rn Railway Company v. ... ... 90

Rainy I'- •fus'icps of Sierra Leone ... ... ... ... ... 412

Raleigh, Corp. of, v. Williams ... ... ... ... ... 466

Ram Sahuk Bose ''• Monmohini Dossee .. ... ... ... 430

Ramdass, Nathoobhoy, ('. Mooljee Madowdass ... ... ... ... 1010

Read ''• Ingram ... ... ... ... ... ... ... 57

Receiver-Cteneral, New Brunswick, Maritime Ba.ik v. 1, 7, 27, 31, 32, 109, 292

Redpath I • Allen ... ... ... ... ... ... ... 410

" " 32 (3rd part) 117, 119 (1st part), 320 (2nd part)

Reed ''• Att.-Gen. of Quebec ...
„ V. Mousseau
„ Ward v.
Reenen, Van, Orphan Board v.
Reg. ''■ Alloo Paroo ...

('. Amers

r. Anderson and Remo ...

Arpin v.

i<. Bank of Nova Scotia ...

1'. Bennett

v. Uelleau

Bertrand v.

>: Burah

I'. City of Fredericton

V. Chandler

Chevrier w.

V. College of Physicians ...

V, Coote

V. Davidson

!'. Doutrie

V. Eduljco Byramjeo

Exchange Bank of Canada v.

... 636
... 103
... 410
... 409
10,33
... 544

477

31,293

324,390

... 626

33,418

22,49, 131,248,390,711

60, 62, 126, 129, 171, 196, 200

220,230

... 473

70,420

... 420

... 33

... 396

... 409

31,288,293

c 2

XXVlll

CASES CITED.

Reg,

Falkland Islfiiuls Company c.
V. Farwoll
V. Frawloy
V. Halliday
V. Hart

V. Hodgo 50, 62, 03, 124, 125, 135, H7, 150,

248, 294, 324, 327, 329, 741, 1
V. Joykissen Mookorjce ...
t). Justices of King'.s
Kops v.
Levicn v.
V. Levinger

w. Local Government Board
V. London County Council
V. M'Dermott ...
V. M^Dougall ...
Macqueen v. ...

V, Maritime Knnk .. ... ... 1,

('. Mohr

V. Murphy

0. Nova Scotia Bank

i>. O'Rourke

('. Prittie

Quirt ('.

t'. Reno and Anderson ...

I'. Kiel

V. Robertson ...

V. Russell. See Russell below.

St. Catherine Milling and Lumber Company...

,, Severn v.

,, V. Stone

„ !'. Taylor

„ ('. Toland

„ Toronto Bank V.

„ V. Wa.son

„ Windsor and Annapolis Railway Company v.
Reno and Anderson, Reg. t'. ...

Retemeyer v. obermuiier ...
Rex *'• Cook

„ Massachusetts Bay Company V.
Rhode Island, State of, Fletcher v. ...

Richer y. Voyer
Rielt'. Reg.

RiOUX, Griffith u. ...
Ritchie ''• Lonour ...

Robertson, Reg. v.

,, V. .Stoadman

Robinson f- Canadian Pacific Railway

Rodney, Lindo v. ...

Rokeby, Lord, Dawkina ti. ...
Ross or Hoskin v. Hurteau
,, t'. Torrance

Boutledge t*. Low ...

Royal Aquarium i;. Parkinson
Russell i>. Lefraufois ...

PAOK

415,419

... 519

... 126, 154, 325

... 158

... 105

153, 154, 161, 166, 191, 200,

054, 10.")6, 1058, 1063, 1069

... 419

58, 161, 172, 1053

... 416

417

107,418

... 1083

413

... 159

477

7, 27, 31, 32, 109, 292, 480

241,249

... 418

31,293

... 113

104,161

75,85,112,332,636

... 544

11,12,46,538,547

94, 123, 296, 459, 484, 600,

533, 536

52,54,66, 158, 167, 196

... 104

52, 55, 125, 161, 195, 1047
... 107
... 467
106,124

... 292,162,486,493
.. 544
... 411
... 33
... 1000
... 101
... 425
11,12,46,538,647
161,541
7,11,26,27,35,543

72,74

... 463
... 1006
... 1083
... 480

... 92
... 1083

474

rwiMiiiainiwiHiPjIIW'l— i""'ii

CASES ClTliD.

XXIX

Russell V. Rog.

Ryan, Clarkson c.
,, V. Devlin

60, 02, 123, 124, 125, 129, 140, 146, 151, 162, 153, 171, 197,
325. 329, 1046, 1049, 1052, 1053, 1054, 1059, 1068, 1072

... 460
22,317

Sailand t'. Goramill. , .

St. Andrews, Minister of, Joiinston v.

St. Anne's Mutual JJuilding Society, M'Cliiniigan v.

St. Catherine's Milling and Lumber Company v. Rog

St. George's Hospital, I'hilpott v.

St. Jacques, L'Union, do Montreal, Beliele u.

St. John Corp. u. Central Vermont Railway
St. Lawrence nnd Ottawa r. Lett

„ Tow Boat Company, Smith y

Santacana f. Ardevol

Sauvageau '•• Oauthier
Schoolbred f. Clarke
SCUtz, BiUkeley v. ...

Severn f. Keg.

Sewell I'. British Columbia Towing Company and Moodyville Sawmill Com-
pany ... ... ... ... ... ... ... 322,461

... 94
19,405
240,243
94, 123, 295, 459, 484,
500, 533, 536
... 349
43, 45,67, 09, 70, 84, 127, 147, 264,
329, 1048
420,461
... 444
... 452
... 424

421,431

88,321

... 431

52, 64, 66, 158, 167, 196

Shea, Bimlton and Algoma Trading Company v.

Shenton '•. Smith ...
Sheo Singh Rai f. Mussumut Dakho ...
SherbrOOke, Mi^Manamy V. ...
Sheriff of Middlesex, The ...

Sherlock v. Ailing ...
Shields i. Peak

„ or McLaren y. Leacock
Shire v. Shire
Shitta, Montaignac . . .

Sibnarian Ghose I'. HuUodhur Doss ...
Sierra Leone Justices, Rainy «.

„ „ Ramsay v.

„ ,, Smith t).

Sinclair v. Broughton
Skinner, Victoria, /» r«
Slavin f . Corp. of Orillia
Smart '•• Corp. of Hoehelaga
Smiles ''• Belford ...

Smith ''■ Goidio

„ I', Justices of Sierra Leone

„ Merchants' Bank r.

,, I'. St. Lawrence Tow Boat Company

,, Shenton r. ..
Siajth, Kx parte ...
Snadden, Ko-Khine y.
Sookul Mohun Lall y. Becliee Doss ...
Soule, Pacific Insurance Company y. ...
South-Kastern Railway Company, Lambkin y. ...

,, „ „ ,, V. Railway Commissioners

„ Norwich, Township of, HuBon y.
SoUZa's Case

Speaker of Legislative Assembly, Victoria, v. Glass
Springle and Mayor of Montreal y. Brown

... 481

426

... 462

... 159

1079, 1082

... 200

... 88

... 463

... 435

... 438

427, 430

... 412

412, 483

... 414

... 418

... 436

154, 167, 187, 212

... 201

91,308

... 88, 90, 91, 474

... 414

65, 75, 299

... 452

426

... 89
... 424
... 430
... 121
... 423
90
164,195
414,420

... 431

111 !«.■» w ■ ip, ^•^■■■■■■■li|.|UT.'»n!irir.|yf^ .

MMMii

XXX

CASES CITKD.

Stace '•. Orifflth ...

stark, -Main r.

state <'f (Iiilifornia, .\lmy I', ...

„ Maryland, Drown r. ...

„ „ M'Cullonh c.

„ New lliimiishiro, Pcirci. v. ... ...

„ Rliodi! Isliuul, I'lotcliur r.

Stevens, Ki^ii '•. ...
Stewart, Al'i-ciin r.
Stone, KcR. c.

Story, C, on U.S., HOC. 1076

Sulivan, Kflly f. ...
Sullivan, Lawloss t'.

Suite '. Thrni) Kivors Examined

Steadman, Robertson /'.

„ Vonning u.

Stevens I'. Fish

Stewart, MaoLi'an ('.

Sulpice, I'PS Eccle.siasti(iiic,s de, City of Montreal r.

Suite f. Corp. of Tlirno Uivers

Sun l''ire Ottico u. Hart

Surnomoyee Ranee, Trannatli, Roy Chowdry r.

Sussex reeragc Case

Sweeny, Hank of Montreal f.

Syed Ally, l^'ist Intl''* Company (I.

Symes t'. Cuvillier ...

Tareeny Chum Bonnerjee f. Maitland

Taylor, liarton V. ..

Taylor, Reg. 1'.

Teluk, Chunder Rai, Baboo, Gopal Tiiakoor i\ ...

Temporalities Jioard, Uoiiio i'.

Tennant '•• Union Rank

Theherge "■ Landry ... ... 22, 39, 40,

Thomas, European and Korth American Railway v.
„ ('. Fielding

Three Rivers, t'orp. of, Suite I'.

Thurlow '•■ Miw*<acliiisetts

Toland, Reg. t'.

Toronto Rank c. Reg.

„ ,, I'. Lambe

„ Corp. w. Att.-Gcn. of Dominion

„ Municipal Corp. of, f. Virgo ...

Torrance, Ross f. ...

TOVey ". Goodhue ...

Town of Portland, Maher r. ...

,, of Windsor v. Commercial Iknk of Winnipeg

Tupper, He

UbdooUah MoofteMohummud w. RnbooMootcchund... ... ... 424

Union Rank, Tonnant v. ... ... ... 44, 74, 78, 295, 1051, 1067

„ „ of Canada u. O'Gara ... ... ... ... ... 467

,, Fire Insurance Conipmy, Clarke y. ,,. ... ... ... 246

United States License Cases ... ... ... ... ... 214

„ V. Halliday ... ... ... ... ... ... 62

„ o. Hudson ... ... ... ... ... ... 319

I'.VIIK

• ••

t • •

... 436

• I •

• • •

... 428

...

157, 197. 215
... 325
,.. 101
... 101
... 253
... 467
... 104
... 62
... 396
... 75
... 196
72, 74
... 74
... 253
... 467
... 442

...

Kil

, 176, 190, 203
... 424
... 424
... 349
... 4.58
1010, 1017
245, 257

... 438
1079, 1082

55,

125,

101, 195, 1047
... 424

49,

124

232,

272, 328, 538

14,

74,

78, 295, 1051, 1067

46, 83,

109

308

, 310, 394,440
220, 231

...1079

...

101

176, 196, 203
... 101
... 107
... 467

54,68

75,

113,
...

129, 200, 10,50

... 480

B6, 1069, 1075

... 77

232,248,541

332, 334, 338

... 75

... 431

tsitjiiusrw;!.;;

-n;!;t.-i;.t:;JSHi(|||B|, ,«iHp|imni i i »-

CASES CITED.

XXXI

rAcm

Valin '•• Liiiifrlois ... ... 11, 18, is, «8, yo, Ul, 312, 310, 318, 304, 441, 538

Vancouver, City of, c. Ciiimdimi riifille Rtiilway ... ... ... ;)0C

Van Reenen Orplmii itoiird ... ... ... ... ... 410,1017

Veazie J'link ('. i''i;iino ... ... ... ... 121

Vengama NaidoO, Niimguiity Lutclimuudiivuiiiah ('. ... ... ... 438

Venning ''• ■'^toiulnian ... ... ... ... ... ... 74

Victorian Legislature I'. Glass ... ... .. ... ... 12

Virgo '•• City of Toronto ... ... ... ... ...00,1009,1075

Voyer, Riclu'r f. ,. ... ... ... ... ... ... 12,5

Vye, Alexander c. ... ... ... ... ... ... ... 479

Wade, licckford V. ... ... ... ... ... ... ... lOOG

Wadsworth, M^Mullun f. .. ... ... ... ... ... 207

Walford, Dyke f. ... ... ... ... ... ... ... 500

Wallace, /« w ... ... ... ... ... ... ... 414

Ward f. Reed ... ... .. .. ... ... ... 103

Wardens, Hoard of, Cooley I'. ... ... ... ... ... 200

Warner I'. Mathews ... ... ... ... ... 412,414,400

Warwick Canal Company y. Birniiiighiim Canal Company ... ... 1)0

Washburn, Lin .sing v. ... ... ... ,., ... ... 63

Wason, Reg. v loe, 124

Wentworth, Livius v. ... ... ... ... ... ... 1006

West, Corp. of Parkdale w. ... ... ... ... ... ... 459

Western Counties Railway Company u. Windsor and Annapolis Railway

Company ... ... ... ... ... 202,452,486,403

Wetherell f. Jones... ... ... ... ... ... ... so

"Whalen, Ex parte ... ... ... ... ... 05

Wheeling and Bridge Company, State of Pennsylvania u. ... ... 0(i

White <« M'Kenzie ... ... ... ... ... ... 22

Williams, Raleigh Corp. t'. ... ... ... ... ... ... 460

Wilson u. Berkley ... ... ... ... ... .. ... 33

„ I'. Calleuder ... ... ... ... ... ... 430

„ v. Canada Shipping Company. Sec Lake St. Clair ... ... 71

„ Lewin t>. ... ... ... ... ... ... ... 452

„ y. M'Guire... ... ... ... ... ... ... 391

Wilson's Case ... ... ... ... ... ... ... 1083

Willson t'. Blackbird Creek Marsh Company ... ... ... ... 200

Windsor and Annapolis Railway v. Reg. and Western Counties Railway

292, 452, 486, 493

,, Town of, Commercial Bank of Winnipeg u. ... ... ... 75

Wing Chong, Bull t). ... ... ... ... ... 63,122

Winnipeg, City of, v. Barrett .. ... ... ... 333,371,440

„ V. Logan ... ... ... ... 333, 371, 440

„ Commercial Bank, Town of Windsor u. ... ... ... 75

Wolcott, Diggs f 319

WooUey '. Att.-Gen. of Victoria ... ... ... ... ... 625

Wright, Cowan jt. .. ... ... ... ... ... 232,641

Yeap Cheah NeO, Ong Cheng Neo V.

426

'^?'"'*^'^'*f^f*lSffii!^39fiM

^ xxxii )

SECTIONS OF THE JJJMTTSIE
NORTU AMERICA ACT, 'M) .^ Jtl \Il.T. c. 8. 18(57.

Sc.'

10.

11.

12.

13.

14.

15.

>»

16.

17.

>»

18.

»>

19.

>»

20.

21.

»>

22.

23.

24.

25.

>»

26.

27.

>»

28.

29.

30.

»>

31.

32.

33.

34.

Pr(!iuiilile ..-..-..

Titlo

A|)|)li('ution of provisions rofcrriiifj to tlic Queen -
])iH'I»ration of union - .....

Construction of subsequent provisions of Act
Four provinces ......

Provinces of Ontario iind Quebec ....

Provinces of Nova Scotia and Now Brunswick
Decennial census ..... . .

Declunition of executive power in the Queen
Application of provisions referring to Governor.General
Constitution of Privy Council for Canada -
All i)owers luider Acts to lie exercised by Governor.

General with advice of Privy Council, or alone
Application of provisions referring to Governor-General

iu Council

Power to Her Majesty to authorize Governor-General

to appoint deputies ......

Command of armed forces to continue to be vested in

the Queen -...--.-

Seat of Government of Canada

Constitution of Parliament of Canada ....

Privileges, &c., of Houses

First session of the Parliannmt of Canada -

Yearly session of the Parliament of Canada -

Number of Senators ---.-.-

Representntion of provinces in Senate

Qualifications of senator -.-...

Summons of senator ......

Summons of first body of senator? ....

Addition of senators in certjiin cases ...

Reduction of Senate to normal number ...

Maximum number of senators

Tenure of place iu Senate; -.----

Resignation of place in Senate

Disqualification of senators .....

Summons on vacancy in Senati! . . - . -
Questions as to (jualifications and vacimcies in Senate -
Appointment of Speaker of Senate ....

»»
»«
6

I)
»>
>»
8

10
11

»»
14

>»
15

>»

»>

»>
»

}\i

mmm

SKCTFONS OK TIIK JJ.N.A. ACT.

XXXUl

StM'

35. Quorum of Scniitf'

36. Votiii}; in Senate

37. Coiistitiition of Housti of Coinnion.s in Cunudii

38. Siunnioiiinf^ of Houso of ConuuonH ....

39. ScniilorH not to sit in House of Oomniona -

40. Klectora! districts of tlio four pi'ovinees

41. C'ontimuinw! of existing election liiw.s until I'arlinniciil

of Canada otherwise provides ....

42. Writs for lirst election

43. As to casual vacancies --....

44. As to election of Speaker of Ifonse of CominonH -

45. As to filling up vacancy in olHcu of Speaker

46. S[)eaker to prosidt- ...'....

47. Provision in eas(^ of absence of Speaker

48. Quortun of House of Commons .....

49. Votiii}^ in House of Commons . . - - -

50. Duration of House of Commons - . - - -

51. Decenni-il readjustment of representation

52. Increase of number of House of Coumions -

53. Appropriation and tax Bills . - . - .

54. Rccouunendation of money vot<'H ....

55. Hoyal assent to BillM ---..-.

56. Disidlowance by Order in Council of Act assented to by

Governor-General ......

57. Signification of Queen's pleasure on Bill reserved

58. A[)i)ointment of Lieutenant-Governors of provinccH

59. Tenure of office of Lieutenant-Governor

60. Salaries of Lieutenant-Governors ....

61. Oaths, &c., of Lieutenant-Governor . . . .

62. Application of provisions referring to Lieutenant-

Governor

63. Appointment of executive officers for Ontario and

Quebec --...-..

64. Executivi! Government of Nova Scotia and New

Brunswick .......

65. Powers to be exercised by Lieutenant-Governor of

Ontario or Quebec with advice or alone

66. Application of provisions referring to Lieutenant-

Governor in Council

67. Administration in absence, Ac, of Lieutenant.Governor

68. Seats of provincial governments - . - . -

69. Legislaturt! for Ontario -..-.-

70. Electoral districts

71. Legislature for Quebec -...-.

72. Constitution of ligislatixe council . - . .

73. Qualiiication of legislative councillors - - . -

74. Hesignation, discpialilication, &c. ....

75. Vacancies

rAQii

»»

»»
>i

18
22

»»
»»
>»
>>
>»

>»

24
25

>»
26

»»
27

28
30

>»

34
35

a
»»
>»
»»
36

»»
>»

I ;

XXXIV

SECTIONS OF THE B.N.A. ACT.

Hoc 76.

, 77.

, 78.

, 79.

, 80.

, 81.

, 82.

, 83.

, 84.

, 85.

, 86.

, 87.

, 88.

, 89,

, 90.

, 91.

Questions ns to vncancios, &c.

Speaker of legislative council - . . . .

Quorum of le}i;islative conneil . - . - -

Votiii;^ in lefjislative council . . . - -

Constitution of lejiisliitivo assembly of Quebec
First s(^ssion of legislatures . . . - .

Sumnioninff of legislative assemblies - - - -
Restriction on election of liolders of olfices -
Contiiniance of existing election laws - - - -
Duration of legislative assemblies . . . .
Yearly session of legislature - . . . .
Speaker, quorum, &c. -..--.

Constitutions of legislatures of Nova Scotia and New

Brunswick - -

First elections

Application to legislatures of provisions respecting

money votes, &c. -..-..

{Powers of Parliament
Legislative authority of Parliament of C^anada -
(1.) The imblic debt and property - - . -
(2.) The regulation of trade and commerce
(3.) The raising of money by any mode or system of
taxation -.-.-..
(4.) The borrowing of money on the public credit
(6.) Postal service -------

(6.) The census and statistics

(7.) Militia, military, and naval service and defence -

(8.) The fixing of and providing for the salaries and

allowances of civil and other officers of the

Government of Canada

(9.) Beacons, buoys, lighthouses, and Sable Island

(10.) Navigation and shipping

(11.) Quarantine, and the establishment and mainttv

nance of marine hospitals . - - .

(12.) Sea coast and iidand fisheries - - - .

(13.) Ferries lu twcen a proviuce and any British or

foreign country, or between two [irovinces
(14.) Currency and coinage - - - - -

(15.) Banking, incorporation of banks, anil the issue of

paper money ..---.

(16.) Savings banks -------

(17.) Weights and measures - - - . -
(18.) Bills of exchange and promissory notes

(19.) Interest

(20.) Legal tender

(21.) Bankruptcy and in,solvency

(28.) Patents of invention and discovery

(23.) Copyrights. [Sec Acts all set out, p. SAdetseq.]-

IMOR

»>

>»

»>
39

»»
52

66
69

»
»»
»

»>
»»

71
»»

>»

f»

»»

88
91

»!^i!tji;:t:ii::.

SECTIONS OF THE B.N.A. ACT.

XXXV

92.

Sec. 91. (24.) IiuliaiiH, nnd lands roserved I'or the Indians

(25.) Naturalization iind aliiMis

(26.) Marriage and divorw ....
(27.) The criminal law except the constitution of courts
of criminal jurisdiction, but iududing the pro-
cedure in criminal matters . - . -
(28.) The establishment, maintenance and uiiinage-
ment of penitentiaries . . - - -
(29.) Such classes of subjects as are ex[)ressly excejited
in the enumeration of the classes of subjects by
this Act assigned exclusively to the legislatures

of the provinces

f Kxclusive powers of provincial legislatures
I Subjects of exclusive provincial legislation
(1,) Amendment from time to time, notwithstanding
anything in this Act, of the constitution of the
province except as regards the office of Lieu-
tenant-Governor ------

(2.) Direct bixation within the province in order to
the raising of a revenue for i)rovincial pur-
poses

(3.) The borrowing of money on the sole credit of the

province

(4.) The establishment and tenure of provincial
offices, and the appointment and payment of

provincial officers

(5.) The management and sale of the public lands
belonging to the province, and of the timber
and wood thereon .-.-.-
(6.) The estiiblishment, maintenance, and management
of public an<l reformatory i)risoiis in and for the
[)rovince .......

(7.) The I'stablishment, maintenance, and management
of hospitals, asylums, charities, and eleemosy-
nary institutions in and for the province other
than nuu'ine hos|)ituls - - - - .

(8.) Municipal institutions in the province
(9.) Shop, saloon, tavern, auctioneer, and other
licences in order to the raisuig of a revenue for
provincial, local, or municipal purposes -
(10.) Local works and undertakings other than such as
are of the following classes; —

(«.) Lines of steam or other ships, railways,
canals, lelegrai)hs, and other works
and imdertakings connecting the i)ro-
\ince with any other or others of the
province, or extending beyond the
limits of the province

94
100
101

102
108

109

111

113
123

123

124
124

126

224

iMMMMiWI

XXXVl

SECTIONS OF THE B.N.A. ACT.

Sue. 92. (10.) Local works, &c. — cont.

(/>.) Lines of steamships between the pro-
vince and any British or foreign
country ------

(c.) Such works as, althougli wholly .situate
wthin the province, are before or
after their execution declared by the
Parliament of Canada to be for the
general advantage of Canada, or for
the advantage of two or more of the
provinces . . . . .

(11.) The incorporating of companies with provincial
objects -------

(12.) The solemnization of marriage in the province -
(13.) Property and civil rights in the province -
(14.) The administration of justice in the province, in-
cluding the constitution, maintenance, and or-
ganization of provincial courts, both of civil
and of criminal jurisdiction, and including pro-
cedure in civil matters in those courts
(16.) The imposition of punishment by fine, penalty, or
imprisonment, for enforcing any law of the
province made in relation to any matter coming
witiiin any of the classes of subjects enumerated
in this section . . - - -
(16.) Generally, all matters of a merely local or private
nature in the province - - - . -

93. Legislation respecting education . . - -

94. Legislation for uniformity of laws in tliree provinces -

95. Concurrent powers of legislation respecting agriculture,
&c. -

96. Appointment of judges

97. Selection of judges in Ontario, &c, . . . -

98. Selection of judges in Quebec - - - - -

99. Tenure of office of judges of superior courts
100. Salaries, Nc, of judges

1.01. General court of appeal, &c. [See for Practice of
tile Privy Council]

102. Creation of Consolidated Revenue Fund -

103. Expenses of collection, &c.

104. Interest of jirovineial public debts - - - -

105. Salary of Goveruor-tieneral - . - - .

106. Approiniation from time to time - . . .

107. 'J'ransfer of stocks, &c. ------

108. Transfer of properly in schedule - - . -

109. Properly in lands, mines, »te. - - ■ - -

110. Assets conueeled wilh provincial (U'l)ts - - -

111. Canada to l>e liable lor provincial debts

I'AOK

225

»»

234
249
257

308

- 324

328
332
388

389

>j
393

>»
394

394
483
485

>»

»»

486

499
526

fiWWItBfWiBPW

•.^»mihft*t tttir

SECTIONS OF THE B N.A. ACT.

XXXVll

Sec.

112.

>»

113.

114.

>»

115.

>»

lie.

117.

118.

119.

120.

121.

»>

122.

123.

))

124.

>»

125.

126.

127.

128.

129.

130.

))

131.

132.

133.

))

134.

135.

136.

137.

))

138.

))

139.

))

140.

141.

142.

143.

144.

145.

»i

146.

147.

VAOE

Dobts of Ontario and Quebec 532

Assets of Ontario and Quebec -----„

Debt of Nova Scotia 533

Debt of New Brunswick - - - - - ,,

I'ayuient of interest to Nova Scotia and New Bruns-
wick -----"--„
Provincial public property - - - - - „
Grants to provinces ""■"■»»

Further grant to Now Brunswick - - - - 534

Form of payments „

Canadian manufactures, &c. 535

Continuance of customs and excise laws ■ - - »>
Exportation and importation as between two provinces „
Lumber dues in New Brunswick "---,,

Exemption of public lands ,,

Provincial consolidated revenue fund - - - 536
As to legislative councillors being senators - - 537
Oath of allegiance, &c. ------„

Continuance of existing laws, courts, officers, &c. - ,,
Transfer of officers to Canada .... 541

Appointment of new officers - - - - - „

Treaty obligations -------„

Use of English and French languages - - - 542
Appointment of executive officers for Ontario and

Quebec „

Powers, duties, Ac, of executive officers - - - 543
Great seals .------- ^^

Construction of temporary Acts '"""»>
As to errors in names --..-. 544
As to issue of proclamations l)cfore union to com-
mence after union - „

As to issue of proclamations after union - - - „
Penitentiary .---.--. 545
Arbitration respecting debts, &c. -"■-«,
Division of records ■--"■--»,
Constitution of townships in Quebec ' " " »»

Duty of Goverinnent and Parliament of Cana<la to

make railway herein described - - - . 546
Power to admit Newfoundland, &v., into the union - ,j
As to representation of Newfoinidlnnd and Prince

Edward Island in Senate . . . . 547

Schedules, first 548

„ second 552

» third „

,) fourth - - "■""»«

„ fifth „

Declaration of (jiialilieation 563

*r^""'""»"ip-'r"

liiiiiiilMinWM»rrn>t<iiiiwiirtitfiiiiinnwiwiiiiiiiiryii"iiitiilfr-|i^

( xxxviii )

TABLE OF STATUTES GIVEN IN
APPENDICES A AND B.

14 Geo. 3. c. 83.
14 Goo. 3. c. 88.

31 Geo. 3. c. 31

556
565
566

33 Geo. 3. c-. 7G. -
43 Geo. 3. e. 138. -
49 Geo. 3. c. 27. -

1 & 2 Geo. 4. e. 6G.
3 Geo. 4. c. 119. -
5 Geo. 4. c. G7.

5 Geo. 4. e. 68.

6 Geo. 4. c. 59.

6 Geo. 4. c. 75.

7 & 8 Geo. 4. e. 62.

2 & 3 Will. 4. c. 78.

2 & 3 Will. 4. c. 02.

3 & 4 Will. 4. c. 41.
1 Viet. c. 9. -

1 & 2 Viet. c. 59. -

2 & 3 Vict. c. 53. -

3 & 4 Vict. c. 35. -
3 & 4 Viet. c. 78. -
5 & 6 Vict. c. 45. -

5 & 6 Viet. c. 120. -

6 & 7 Viet. c. 34. -

6 & 7 Viet. c. 38. -

7 & 8 Viet. c. 12. -

7 & 8 Vict. c. 69. -

8 & 9 Vict. c. 93. -
10 & 11 Vict. c. 95.
12 & 13 Vict. e. 90.
14 & 15 Vict. c. 63.
14& 15 Viet. e. 83.
16 & 17 Viet. e. 21.

16 & 17 Vict. c. 85.

17 & 18 Vict. c. lU

18 & 19 Viet. c. 91.

19 & 20 Viet. e. 23.

20 & 21 Viet. e. .34.

20 & 21 Vict. e. 39.

21 & 22 Vict. c. 99.

1005
1006

»»

846

659

663

694

846

697

702

1019

, 849

1023

851

852

703

707

1025

710

1025

719
721

u»uiiUii;;t<A{._™i.V-i'f*-''i-**i ■*,^Ui."i;t;»i

REFERENCE TO STATUTES.

XXXIX

22 & 23 Vict. c. 10.

22 & 23 Vict. c. 26.

2G & 27 Vict. c. 70.

20 & 27 Vict. c. 83.

2H & 2!) Viet. c. It.

2S A; 29 Vict. c. 03. ----...

2B&29 Vict. 0. 01.

2H & 29 Vict. c. 100. --.-...

28&29 Vict. c. 113.

28 &29 Vict. c. 110.

29 & 30 Vict. e. 05.

29 & 30 Vict. 0. 07.

30 & 31 Vict. c. 3.

Qiicl)ec Resolutions. [The fouiulation of tho Dominion Act.]

31 & 32 Vict. c. 29.

31 & 32 Vict. c. 105.

31 & 32 Vict. c. 129.

32 & 33 Vict. c. 10.

32&33 Vict. c. 11.

32 & 33 Vict c. 101.

33 & 34 Vict. c. 11.

33 & 34 Vict. c. 52.

33 & 34 Vict. c. 00.

33 & 34 Vict. c. 82.

33 & 34 Vict. c. 90.

33 & 34 Vict. e. 102. - ....

34 & 35 Vict. c. 28. - -

34 & 35 Vict. c. 91. -

35 & 30 Vict. c. 29.

35 & 30 Vict. c. 39.

35 & 30 Vict. c. 45.

30 & 37 Vict. c. 45. - - ....

30 & 37 Vict. c. 06.

37 & 38 Vict. c. 20.

37 >t 38 Vict. v.i7.

37&38 Vict. c. 41.

37 it 38 Vict. c. 77.

38 iV: 39 Vict. c. 38. -.-....
38 ><: 39 Vict. c. 53.

38 & 39 Vict. c. 88. [Alfirniing Can. Copyrif^lit Act.]

39 & 10 Vict. c. 59.

40 & 41 Vict. c. 23.

40 & 41 Vict. c. 59. - - - ... -

41 & 42 Vict. c. 67.

43&41 Vict. c. 20. [E.\tmct from. I ....

41 & 15 Vict. c. 3. - - - - -

44 Si 45 Vict. c. 58

»»

»>
745
746
754
755
758

»»
762

»»
764
774
786
787
789
773
799

1025
800
801
803
809

1026

811

820

821

822

»
823
855

1026
824
812
825
818

1028
825

REFERENCE TO STATUTES.

r.vfiE

•11 & 15 Vict. c. fiil. 826

45 & 4G Vict. c. 72. [Extract from] 819

45 & 10 Vict. c. 70. - - 837

4ii & 47 Vict. c. 30. „

40 & 47 Vict. c. .-,7. 1028

47 & 4H Vict. 0. 24. 840

47 & 18 Vict. c. 31. 841

47 & 48 Vict. c. 02. 840

Berne Convention Act (19 A 50 Vict. c. 33.) - - - - 868
49 & 50 Vict. c. 33. „

49 & 50 Vi(;t. c. 35. 887

50 & 51 Vict. c. 13. „

50 & 51 Vict. c. 70. 1029

51 & o2 Vict. c. 05. 888

53 & 54 Vict. c. 27. „

53 & 54 Vict. c. 37. 1031

American Cojjyriglit Act [iis amended, 1891] - - - - 875

55 & 56 ^^ict. !• - 903

55 & 50 Vic; > . 908

55 & 50 Vict. 906

I3ehriug Sea Award ......-- 910

57 & 58 Viet. > .?:. „

57 & 58 Vict, e 30. 926

57 Si 58 Vict. c. 39. „

Mereiiant Shipping Act, 189 1 [summarized] 57 & 58 Vict. c. 00. 927

58 & 59 Vict. c. 34. 1002

58 & 50 Vict. c. 44. 1030

59 Vict., Sess. 2. c. 3. - .... 1003

«9

ii'Si!ffi5!-r?invi«'

':H'!ff!!'!v'"'!ffl- !

•^mrnfi

»«.^«*n*i» •ialli

CANADIAN^ LAW.

BRITISH NORTH AMERICA ACT
[IMPERIAL].

30° VICTORIiE, c. 3.

An Act for the Union of Canada, Nova Scotia, and
New Brunswick, and the Government thereof;
and for purposes connected therewith.

[29th March 1867.]

WIIEllEAS the provinces of Canada, Nova Scotia,
and New Brunsicick liavc expressed their desire
to be federally ^ united into one Dominion under the
Crown of the United Kingdom of Great Britain and
Ireland, with a Constitution similar in princii)le to
that of the United Kingdom :

' 'I'lic provincial le<;islatni'i's

lid not occupy the siilKH'iliiiiitc

[jiosition of independent municipal

institutions. 'I'iiey " dei'ive no au-

[tliority IVoui tiie (io\ eminent of

I Canada, and tlieir status is in no

nvay analogous to that of a nnmicipal

Jinstitution, which is an authority

constituted for the pm-pose of local

whiiinistration."

■ The ol)ject of the Aft of 18G7
WIS neither to weld the provinces
ato one, nor to subordinate pro-
Irincial fjoverunients to a central
iuthority, hnt to create a federal
toxcrnnient in which they siioi Id
VI l)e represented, entrusted wi h
lie exclusive lulininistration of
ffuirs in which they had a couiiuoii
Merest, each province retaining its
^dependence and autonomy," with

b 2310.

the pnu'ogativo of the Queen as FEDEnArxv
extensive in each pi'oxince (except United.
where expressly limited by local
law or statute) as in Great Jiritaiii.
These " objects were acc()mi)lished
by distributing between the Do-
minion and the provinces, all
Ijowers, executive and legislative,
and all i)ublie property and re-
\eimes which hail pre\iously l)e-
longed to the provinces ; so that the
Dominion Government should be
M'sted with such of these powers,
property, and revenues as were
necessary for the due performance
of its oonstittitional functions, and
that the remainder should be re-
tained by the provinces for the
purpose of provincial government."
The Queen's prerogative not being
touched. See Maritime Bank of

Pil
1

i ;

Short title,

Application of
provisions
referring to
the Queen,

2 B.N.A. ACT, s. 1.— INDEPENDENCE RETAINED.

' And whereas such a Union would conduce to the
' welfare of tlie provinces and promote the interests
' of the British Empir(- :

' And whereas on i\\Q: estahlishment of the Union
' hy authority of Parliament it is expedient, not only
' that the constitiition of tlie legislative authority in the
' Dominion he provided for, hut also that the natvu-e
' of the executive government therein he dc^clared :

' And whereas it is expedient that provision he made
• for the (\ventual admission into tlie Union of other
' parts of British North America : '

Be it therefore enacted and declared hy the Queen's
most Excellent Majesty, hy and with the advice and
consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assemhled, and
hy the authority of the same, as follows :

I . — Preliminahy.

1. This Act may he cited as The British North
America Act, 1867.

2. The provisions of this Act referring to Her
Majesty the Queen extend also to the heirs and suc-
cessors of Her Majesty, kings and queens of the
United Kingdom of Great Britain and Ireland.

C'nnada v. Now Brunswick IJc-
cciv.T-Gencml, Julv 2, [1802]

A, C. 437: 01 L. .l! V. V. 75; U7
L. T. 12(5 ; H T. L. 1{. 077 ; ropoit-
ed l.i'low 1 7 & 20 S. C. K. 057, 0!)5.

"'riuMlt'cianitionsot'tlu'Doiniiiioii
Piirlianu'iit are not, of course, con-
elusive upon the construction of the

B. N. A. But when the propei'
construction of the language used
in that Act to define the distribution
of legislative ])owers is doubtful,
the interpretation put upon it hy
the Dominion Parliament in its
actual legislation nuiy properly be
considered." See Citizen.s' Insurance
Co.r. Par.sons,Nov. 20, lHHl,7A])p.
Ca.s.p.ll6; 51L.J.P.C. 11 ; 15L.T.
721 J and inCt.below, 4 S.C. U.215.

Also " it is not necessary to rest
the authority of the Dominion
Government lo incorpoi'ate com-
panies on this specific and enume-
rated power ['the rt'gulation of tradi'
and connuerc(^']. The authority
would belong to it by its genenil
power o\er all matters not t-omiii^'
within the classes of subjects as-
signed exclusively to the legislii-
tures of the provinces, and the only
subject on this head assigned to
the pro\iiicial legislattues l)eiii};
' the incorporation of companies
with provincial objects,' it follows
that tlie incorporation of companies
for objects other than provinciiil
falls within the general powers of
the Parliament of Canada." Ibid.

■MM

ED.

B.N. A. ACT, s. 3.— HISTORY.

e to tlie
interests

lie Union

not only

■itv in the

lie nature
ired :

n he made
1 of other

10 Queen's
idvice and
poral, and
nhled, and

fish North

no; to Her
I's and suc-
:ns of the
eland.

.(■ossary to ivst
\\w Uoiiiinioii
l-orpoiate (.'oiii-
W anil fimnii'-
|vulatu)U<>t"tiwl>'
The authority
1)V its gfiu'iiil
tors not c'oniiii};
lot' snbjei'ts as-
to tlu' U'gislii-
[fs, and tlie only
l-ad assigned to
cislatnres being
of eonipanifs
Ijeets,' it follows
Ion of eonipanics
than provineial
iieral powers of
Janada." /i''''

II. — Union.

3. It shall he lawful for the Queen, hy and with 5^,11^™*'°" "^
the advice of Her Majesty's most Ilonourahle Privy
Council, to declare hy proclamation that, on and after

n day therein appointed, not heing more than six
months after the passing of this Act, the provinces
of Canada, Nova Scotia, and New Brunswick shall
form and he one Dominion under the nam(5 of Canada ;
and on and after that day those three provinces shall
form and he one Dominion under that name accord-
ingly.

4. The suhsenuent provisions of this Act shall, unless Construction

^ ■•■ _ , ot silbscqlient

it is otherwise expressed or implied, commence and have inovisiuns of
(>n'ect on and after the Union, that is to say, on and after
the day appointed for the Union taking eifect in the
Queen's proclamation ; and in the same provisions, un-
less it is otherwise expressed or imjdied, the name
Canada shall he taken to mean Canada as constituted
under this Act.

5. Canada shall he divided into four provinces, Pour provinces.
named Ontario, Quebec, Noi'a Scotia, and New Bruns-

wiclc}

' The B. N. A. Aet, 1871, lii
Vict. e. 2S., provided that the Do-
minion niiglit admit or establisli new
])i()vin('es. (Sec Act, post.) And
the H. N. A. Act, IHHO, IJ) & 50
Vict. e. 35., enacted tliat represen-
tation in tlie Dominion Parliament
[mi^ht lie given to territoi'ies ont-
Iside a province.

The Dominion now. May 1895,
Iconsists of the provinces of On-
itorio, Quebec, Nova Scotia, Netv
\Brini.swicli, British Coluinbia,
Prince Edward Island, North-
yi'e.st Territories, Manitoba, in-
cluding Keewatin.

Xevvfolndland lias not yet
loined the Union, hut negotiations
^e far advanced towards that de-
rahlo ohjeet.

History. — The Dominion. —

The first Parliament at Ottawa
June 8, 18(50. Dominion consti-
tuted 1867, .30 Vict. c. .3., and
made effective hy Proclamation
1st .Inly 18(i7. " Hudson Bay
territories added 1870. Supreme
Coui't established and met .July 5,
187G. All adjacent territories,
except Newfoundland, annexed
1880. The Dominion also in-
cludes all the Arctic islands ex-
cept Greenland, and Anticosti,
Prince Edward Islan<l and Cape
Breton on the east, and Vancouver
and Queen Charlotte's Island on the
west. The Cxovernor-General is
appointed and paid by the Crown,
and is supported by a Privy Coun-
cil. The Lieutenant - Governors
are paid by Canada. The Senate
is nominated for life. The Domi-
nion House of Commons consists

A 2

B.N.A. ACT, s. 5— HISTORY

Dominion.

^"//"y— T"K (.r 215 inomltors :— 92 for Ontario,
(j.) Qiu'l)i'c, 21 Novii Scotiii, l(j
Xcw IJMinswick, 5 Maiiitolm, (5
Kiitish Coliinibia, G I'lincc Kd-
wanl Island, and 4 tlu' Noitli-
W'cst Territories. Kaeli |)roviiice
has a Lieutenant - flovei'iior ap-
pointed for iive years 1)V the (}o-
\('rnor-(!eneral, and a Council witli
a Lej5islati\(' Assenilily ; there heinj;
a seeon<l eliainlier in (^neliee, No\a
Sfcttia, and I'rinee Kdward Island.
Kaeh |ir()\inee has power to alter
its constitution.

O.VTAUio was the old Province of
Ui>per C^uiada. The I'arlianu'iit
met 17 September 1702 (sir 31
Geo. 3. c. 31.), and introduced the
Eiif^lish civil law, trial liy jury, and
the recovery of snudl dehts, To-
ronto heinij selected as the capital.
At the conciuest of Quehec To-
ronto was a forest, and New Jhiins-
wick was known as Sunbury. The
revolt of the American Colonies
was the dawn of the prosperity of
Upper Canada. Many thousands of
l{oyalif-ts tied into Canada, and the
"Unity of the Empire" list was
made out. The children of the.se
fu;;iti\es, as well as tho.se hereafter
born, were declared entitled to 200
acres of land on reachinjf twenty-
one years of ajje.

QuKREc was the old Province of
Lower Canada. By the fall of
(inel)ec in 17o!) tiie Enj^lish be-
eame masters (see Treaty of Paris,
10 February 1703) of teri'itory
which had been for 150 years a
constant source of strife between
France and Fn<;land. Therefoi'c,
in (^neliee, the old Frencli law anil
lan<inaf,'e prevails. At the present
day the Napoleon Code, as re-
vised l)y His Majesty's law otiicers
al)ont 1770, is the l)asis of the civil
law (see the law otiicers' letter to
Board of Tradi>, U> April 170(5),
but the En}i;lisli criminal law has
been enforced there since 1700.
{See also debates in Parliament on
Quebec Bill, 177«.) The evils of
seignorial tenures (abolished 1H54)
and equal partition of land among
the children existed. The Act of

1774 (14 Oeo. 3. e. 83.), which
formed the se.eral territories and
possessions, excluding Newfound-
land, into the Province of Quebec,
gave Roman Catholics the free exer-
cise of their religion, their aeeustoin-
cd dues, with the exception of those
lands held by Protestants, who were
freed from payment, and repealed
the I'roclamation of 17(53, and es-
tablished new boundaries. The
French law was declared the ride
I'oi' decision relative to property
and ei\il right, while the English
criminal law was establishe<l in
perpetuitv. (Sec Maeniinan's Hist.
Canada, "p. 198.) Both the civil
and criminal codes were liable to
be altered by the (loscrnor and
Legislative Coinieil. That Council
was limited to dealing with local
and municipal taxes and the ad-
ministration of internal affairs.
'I'hc Imperial Parliament reserved
to itself external taxation. Every
ordinance jjassed was to be trans-
mitted to Kngland for approval of
the King. In 1785 the Habeas
Cor|)us Act was reintroduced into
Canada. In 1701,31 Geo, 3. c 31.
divide<l the Pi'ovince of (Quebec
into two provinc'cs, to be calleil the
Province of Upper Canada and the
Province of Lower Canada, each
I'eccivinga Legislative Council mid
.\sscndily. 17 December 1701 the
tirst Parliament of Lower Canada
was opened, the journals being
kept in both languages — th(» Legis-
lative Council appointed by the
Crown, and a House of Assembly
elected iiy the iieople. The Lower
PioMuce had a (lovernor, and the
Upper a Lieutenant-tiovernor. By
this Act the <'lei'gy reserve lands
(gi\cn altsolutely to Canada, 10 i<;
17 Vict. c. 21., and abolished) were
appropriated for the benetit of the
Pi'otestant clergy of the established
Church of England, which in-
cluded the ch'rgy of the established
Church of Scot hi lid. After the re-
bellion of Lower Canada of 1H38,
tlie Constitution was suspended
(1 A 2 Vict. e. 9.), and by 3 & 4
Vict. c. 35. the legislative bodies
of the two provinces were consoli-

B.N.A. ACT, 8. 5.— HISTORY.

(liilwl under the imiiic oi' Piovince
of C'liiintla. lu 1H40 inniii('i|iiil iii-
sliliilioiiM were catablishcd. Uv
17 & IH Vict. c. IIH. tlic Ifjrislii"-
tiiif Wilis cinpowiMvd to coiistiti!..-
till' Icyislativ*' council into an elec-
tive l)ody.

NTdVA Scotia, called by tlie
Fieiuh L'Aeadie or Acadia, was
llie i'ahled homo oi' " Evaiifjfeline."
James 1st created hai'oncts of Nova
Seotia, 28 May 162H. {Sec letters
to Scottish I'rivv Council, o August
l(i21 ; IS Oetoller 102 1 ; 2;maiili
1G25.) The last of these Itaronets
was created 1707. (See Major
Diniean's list of these baro-
nets.) In 1G32 France had pos-
session inidcr the treaty of St.
(icrnaiin-en-Laye, but wc obtained
possession l>y theTreaty of Utrecht.
By this treaty the French made
o\er to FnjiUind " All Acadia com-
prised within its ancient bounda-
ries.'" France retained Cape Hreton
mid I'rinee Edward Island. The
French soufi^ht to conline this
Acadia to the peninsida, Nova
Seotia ; but the Eufrlish main-
tained the ecdi'd territory included
all the surroundiu}; islands and
part of the mainland, called now
New Erunswiek. Thei-e was a
(■(instant quarrel over this, and, be-
c(iiiiiii<i siisi)ieious of the French
liopiilation, England, in 171!),
ciiiled upon them to take a new
oath or to h'uve Acadia. They de-
layed, and evenliially were, foi' the
most part, expatriated. In 1758
Prince Edward Island was added,
and an As.senibly met. Prince Ed-
ward Island was separated in 1770,
and in 1763 Cape Breton was
added, but in 1784 separated, and
in 1820 re-annexed, llesponsible
government in 1848. The Legis-
lative Assembly had no [lower to
remove one of its members: Lan-
ders c. Woodworth, 2 S. C. 11. lot).
Sec Kiellev v. Carsou, 4 Moo. P.
C. 75 ; Dill's case, 1 Moo. P. C.
N. S. 487 ; Glass's ease, L. R. 3
P. (' 0(50.

Nkw Rkunswick was separated

from Nova Seotia 1781, and giwn ^'"''•"•.V.-Thb
responsible government 1848. I>ominiok.

Rritisu Coi.uMiiiA was admitted
into the Union as from 20 .Inlv
1871. {Sec (). in C. 10 May 1871.)
Governor, Council, and Legislatixc
Assemblv, 18')8 {.see 21 <t 22 Viet,
c. !)!).); '(ace 2G Si. 27 Viet. e. 83.
as to boundaries) ; and Assembly,
1871. VanctaiM'rs Island was leased
to Hudson Bay Company 1843,
made a Crown Colony 1845), given
a Governor and Council 1850, and
was united to Briti.sh Columbia
I860 (2!) & 30 Vict. c. 07.), and
entered tb Dominion with British
Columbia.

PiuNCic EuwAHD Island {see
Nova Seotia). — It had a Governor
and Council, 1770; responsible
government, 1851. It was ad
initted intothe Union 1 July 1873.
Appeals had to go from the Su-
preme Court to Governor and Coun-
cil for trial, and then to the Privy
Council. {See In re Cambridge,
11 February 1841, 3 Moo. P. C.
175.) But .see Kelly r. Sulivan,
1870, I S. C. R. 1.

NouTii - West Teriutouies —
Part of Rupert's Land. — By the
Dominion Act (38 Vict. 3." 40.)
these territories, with the exception
of Manitoba and Keewatin, were
created a separate colony. (.SVc
Proclamation, 7 Octolier 1870, and
43Vict.(I).)c.25.) It was governed
by a Lieutenant-Governor, subject
to in.structions from Ottawa. Legis-
lative Assembly, 1888. Riel exe-
cuteil after an unsiicci'ssfiil apjdi-
cation to the Queen in Council,
1885, lor a new trial.

Manitoba — Part of Rupert's
Land, Red River setth'ment of
Hudson Bay Co. {See sec. 146 of
the Act.) — 'I'liis i)roviiice was
formed by Dominion Act, 33 Viet.
c. 3., and -Inly 15, 1870, admitted
into the Union. By Dominion Act,
44 Vict. e. 14., its boumhuies were
extended. Its A.s.sembly consi.sts
of 38 member.s. Keewatin was
eut out of the north of Manitoba

BHHlPFwmfinanwira

B.N.A. ACT, H. 5.— HISTORY.

//m/'o///.— TiiK in 1870 mill placed nmlcr tlio {^o-
DoMiNioj*. vfriiiiu'iil ol' the Lii'iitciiiiut-Uo-

vi'iiun' ol' Miinitiibd, who is pin-
powtTcd to a|)|)oiiit jiisticos.

NKWFon.NDi.ANi). — Vuluiihlo t'or
H>liiii<; stations since 1G2U. Ab-
Molntcly olitaini'd by tlic peace ol'
I'tivelit, 171.'{. Aldn;:; tlie Atlantic
side of Mova fSeotia, Cape Hreton
(not British nntil IT'jHjjand New-
foundland are inninnerable hanks of
shallow sea» called the "Banks,"
which are swept by the powerful
Atlantic current called the Gulf
Stream. These banks are most fa-
vourable for th(^ propagation of cod
fish and lobsteis, and the result is
that there have been constant {\\nw-
rels between the Kn^lish, French,
and Americans as to the ri<;ht to
fish and cure lish ; the French
liavin<; the adjacent islands of St.
I'ierre and Miquelon ; and the
Americans the adjoiniuf^ coast.
(.See Treaties of I'lrecht, 171,'i, lUid
Versailles, 17t>.'{,aslo Frciuhclainis;
and as to American, the Treaty of
Uhenl, 181 I ; London, 5!) Geo. .'{.
c, ;j8.; 'I'reatyof Washinjrton, 1812,
vidv Hertslet ; and Behring Treaty,
1894.) Its constitution was sns-
jjended IS 12-7. llesponsdde gov-
ernment 185.J. Has a Governor with
a (.'onncil,anda House of Assend)ly.
Acts of imperial Parliament dealing
withXewfoundiaud, U)it 11 Will.3.
(1GJ)!>) c. 25.; 2 Geo. 2.c. m. s. 25
[Seamen] ; 15 Geo. .3. (1775) c. .'H.
a. l.'{ [Seamen]. Above in part re-
pealed bv 5 Geo. 1. c. 51. 31 Geo.
3. (1791) c. 29. [giving right of
appeal to P. C] ; 32 Geo. 3. (1792)

V: 1(5, [t'onrts of .fudicature and
right of appeal to i'. V.\ ; .'{3 Geo.
3. (1793)c. 7(5. [the Supreme C'(»urt
an I Admiralty Couit] ; 19 (Jeo. 3.
(l8()9) c. 27! [Labrwlor] ; 5 (feo.
1. (1821) c. (57. [appeals to High
Court Admiralty P. C] ; 5 Geo. 4.
(1824); c. (58. [repealing 57 Geo.
3. c. 51. ; and celebration of mar--
riage by person licensed by Gover-
nor and befoi'c two witnesses to be
valid]. 2 & 3 Will. 4. c. 78.
[gives power to As.senibly to alter
5 Geo, 4. c. (57. ; 5 Geo. 4. c. (58. ;
10 Geo. 4. c. 17.]; 5 & (1 Vict.
(1842) c. 120. [Property (pialilica-
tion of member ot Assembly mad*'
£500, Her Majesty's prerogalixe
preserved]; 12 & 13 Vict. (1819)
c. 21. [idlirming 9 & 10 Vict, e, 3.
and 10 V^ict. e. 1. Newfoundlund
Acts].

LabuadoI!, from the ii\er of .St.
•lohn to Hudson Straits, with the
islands of Antieosti and Madelaine,
and all smaller islamls wasattai-hed
to Xewfoundland, 1703. {See I'l'o-
ciam.'ition, 10 Februai-y.) Kestored
to Province of (Quebec and Nova
Scotia, 1774. {See 14 Geo. 3. c.
83 ) Jte-annexed, except Made-
laine Island, to Newfoundland,
1809. (49 Geo. 3. c, 27.) Now
part of Labrador, by letters patent,
28 March 1870, belongs to (Quebec ;
to the North-We.st Terriories ; and
to Newfoundland.

The above is a short account of the
comiionent parts of this great dt;-
pendcney of the British Crown in
North America.

Provinces of
Oiitiirio and
Qiiolico.

6. The parts of the province of Canada (as it exists
at the jiassing of this Act) which formerly constituted
respectively the provinces of Upper Canada and Lower
Canada ' shall be deemed to he severed, and shall form
two separate provinces. The part which formerly con-
stituted the province of Upper Canada shall constitute
the province of Ontario ; and the part which formerly

* See Note, sec. 5.

B.N.A. ACT, 8. 7— EXECUTIVE POWER. ?

const it iitod tlu! province of Lower Canada shall constitute
the province of Quebec.

7. The provinces oT Nova Scotia ' and New Brims- f/nvinc-r- of

' ' i- _ ^ ^ova Scotia

^•/cA; ' shall have the same limits as at the passing of and Now

.... Brunswick.

this Act.

8. In the s'eneral census of the populatiim of Canada DcconniBi

. ^ *■ Census.

which is lierehy r(;f[iiired to ho taken in the year one
thousand eight hundred anu seventy-one, and in every
tenth year thereafter, th(> respective populations of the
lour provinces shall he distinguished.

III. — Executive Power.

9. The (rxccutivo government and authoritv of and ''•""lafntion of
over Canada is herehv declared to continue anil he vested p"««'' '» the

' Queen.

in the Queen.^

10. The provisions of this Act referring to the Appiicntion of

' " provisions rc-

Governov-Cjieueral extend and apply to the Governor- ferringto
(icneral for the time heing of Canada or other the chief General,
executive officer or administrator for the time heing
carrying on the government of Canada on hehalf and in
th(> name of the Queen, hy whatever title he is desig-
nated.

■'!i

' Sec Note, sec. 5.

- 'I'lif IjiiMiti'iiant-Govcnior,wli('n
iiplioiiitcd, ivprcsi'iits till' (^uccii for
nil puriiosi's of provincial }i;()vciii-
nu'iit;ror,ln .scc.oHjtlu'iippoiiitmcnt
of n provincial governor is made by
the "(jiovcrnor-QciU'ral in Council
l>\- instrument under the {^reat seal
of Canada," or, in other words, by
tlw executive Govorunient of the
Dominion, wiiieh is bv this sec. 0.
expressly declared " to continue
and lie vested in the Queen."
(Maritime Bank of Canada r.
Xew Ihiuiswick Receiver-General,
I" S. C. R. G57; July 2 (1892)
A. V. 1.37 ; Gl L. .J. 75'; 67 L. T.
12G; 20 .S. C. R. 095 ; *ce sec. 64,
post.)

liKNoiK r. Ritchie, November
4, 1879, was an appeal from the

Supreme Court of Nova Scotia, and Lenoir v.
heard by the Supreme Court of
Canada (.'5 S. C. R. 575). It de-
cided, 1st, an appeal lay; 2nd, that
the respondent, appointed Queen's
Counsel by the Governor-General
in Council in 1872, could not be
deprived of his precedence by the
appointment as Queen's Coun.sel
of the appellant by the Lieutenant-
Governor of Nova Scotia in Coun-
cil under the 37 Vict, c, 20. (1874)
and 37 Vict. c. 21. of that pro-
vince, by which preceilence over
the respondent was purported to be
given to the appellant. The Su-
preme Court held the Acts were
ultra vires. [See Notes, pp. 11,
35.]

I'li;.

iSi|

Constitution of
Privy Couneil
for Cniiada.

All powers
uiitlcr Acts to
be exorcised
by Oovernor-
Genoriil with
advii'o of Privy
Council or
alone.

8 B.N.A. ACT, s. 11.— ADVICE OF PIUVY COUNCIL.

11. Thciv shall he a Council to aid and advise ' in
the s^ov(M'nin»Mit of Canada, to be stylod tlio Qucon's
Privy Council I'ov Canada ; and tlio jKM'sons who arc
to bo mtMnbors of that Council shall be, from tiino to
time, chosen and suminonod by the Governor-CJeneral
and sworn in as I'rivv Councilkn's; and members thereof
may h(\ from time to time, removed by the CJovernor-
Gcneral.

12. All powers, anthorities and functions which,
under any Act of the Parliament of Great Britai>i, or
of the Parliament of the United Kinjirdom ol" (h'cat
lit'} tain and Ireland, or of the Leirislatiire ol" Upper
Canada, Loa'er Canada, Canada, Xora Scotia or Nea-
Briinsicicli', arc at the Union vested in or o.verciseable
by i\\'\ respecti\(' Governors or Lieutenant-Ciovernors
of those provinces, with the advice, or with the advice
and consent, of the r(>sj)ective l<]xecutive Councils
thereof, or in conjunction with those Councils or with
any numl)er of members thereof, or by those Governors
or Lieutenant-Governors individually, shall, as far as
the same continue in existence and capable of beini?
exercised after the Union in relation to the Govern-
ment of Canada, be vested in and cxcrciseablc bv tlic

' A conv.'^poiulciKH' iirose bo-
Iwcon tLi' Sci'i'i'tarv of Stalt> I'dr
tlie Cdloiiit's 1111(1 llu' Minister of
Ju.stic'i' lis to wlu'llicr (lif (lOMT-
iior-Goiii'riil wiis to li<> coinpli'li'ly
;;iii(U'(l hy liis Council, or wlicllici'
he I'ouhi, aftt-r takiii};; tliat ailvk'c,
still follow his own oiiinlou if it
were conlrai'v.

Earl Kiiiibiulcy, SOtii .Inn ■ IH7u,
forwarili'il the o|)iiiion of tin- law
oHicer.s of the Crown in Enfjiaiul,
that till' »iii('st'oii wlifther a pio-
viiit'ial Ai'l slionld he ilisallowcd
was a niattiv in wiiic-h Mis E.xfd-
IciH'j' sliou'i' act on liis own in-
dividual opinion and in which he
could not bu guided by the advice
of his repousible ministci>.

liord {\irnar\()n siifjgcsted it was
one in wiiich it was more in accor-
dance witli the spirit of tlicCoiistilii-
tion that a rigid rule action should
not be established. 'I'lie Minister of
Justice replied I hat Ill-'^Lxcellency's
ministers (whose reconmiendation
is essential to action) are respon-
sible iu)t inerely for the advice
given, but also for the action
taken ; that the Canadian I'arlia-
nieiit has the right to call them to
account not merely for what is
propo.sed, but for what is done, in
a word, that what is done is prac-
tically tluir doing (liliie Hook,
IHHti, p. 18). A formal report on
all pro\iiicial doubtful Acts or
sections is now made by the Minis-
ter of Justice or his Deputy.

. I*

IBI

I3.N.A. ACT, s 13— OLD ACTS OF PKOVINCKS.

Governor- General, with the advice, or with tlic advice
and consent of, or in conjunction with, the Queen's
Privy Council for Cdiiada or any members ther(M)l', or
hv the CJovernor-General indivi(hially ' as the case
requires, suhj(>ct nevertheU'ss (except with respect to
such as exist uiuhn- Acts of the Parliament of Greai
Britain or of tlie Parliament of the United Kingdom
of Great Britain and Ireland) to be abolished or altered
hv the Parliament of Canada.

13. The provisions of this Act refiM'rinp: to tlic '^_!;>;'r:;^^^^^^^^
Governor-General in Council, shall be coi\strued as nforrinn to
referrinsf to the Governor-General ictini:? by and with (icneniiin
the advice of the Queen's I'rivy Council for Canada.^ """"' "

14. It shall be lawful for the Qui'eii, if Her ^Fajesty
thinks tit, to authorize the Cioveriun'-General, from
time to lime, to appoint any person, or any persons
jointly or severally, to be his deputy or de[)iities,
within any part ov parts of Canada, and in that capa-
city to exercise, during the pleasure of the Governor-

rower to Ilor

MiijoNty to

.lutlicirize

(iovcnior-

GolllTIll to

a|ipi)int
(Icputii's.

' It was arfjiiod intlu' Att.-IJkn.
OK Canada r. Ati'.-Iikn. of Ox-
TAHIO, 1S!)2, ;{().A. !{.(); li)(). !{.
•17, tliiit llic wliolc iniissof t'xccutivi'
autliorilv is divided into two imii'Is,
that portion of wliivli is capaldi' of
U'i\\}i I'xcii-isfd witii rt'lation to llif
HDXt'rnnicnt of tin- Diiiiiiiiioi) lic-
iiig placed in the hands of the
(ioverni)i-Cieiu'ial, and lliat por-
tion wiiieh is eai)al)le of liein-j;
exercised willi relation to the
piveninienl of the pi-ovinees lieinij;
Vested in the liientenanl-Ciovern'M's.
And ilie exeentivi' antlioiity whieh
goes to the latter is of the stinie
nature, of the same 'irijjin, of tho
winie or even hi<;iier antiiinii v, he-
cause it was practically continned
lioni the old provinces. Therefore
llu' provincial executive authority
lias no! nuv subordinate or inferior

actinjj; in her name for Canada is
till- exeentivi' authority possessed by
the Lieiilciumt-CJoveriun" aetiu}; as
the t^ueen" representativi' for tho
provinc. .

.Se<' sees. rA> ami !)0.
By see. oO, the dis'dlowance of
Canadian statutes is vested in
the Queen in Council. By sec. !)()
tliis provision is extended to each
|)rovince, with t he substitution of the
Governor-(}eii>'ral for the Queen,
tiierefore the jjovver of disallowanci'
of provincial statutes is vested in
the (iovermir-CJeneral in Council,
a phrase which under this .section
means the (it veriior-Clenend acting
by ami with the advice of the
Queen's I'rivy Council for Canada ;
so argued the Minister of .luslice
in 1875 (Prov. Leg., 18H(!, p. 17)
in his contest with Earl Carnnrvon
that the (iovernor shoidd act under

Att.-Okn. op
Canada c.
Att.-Okn. or
Ontario.

nature or (padity. Of just the the advice of his Privy Cnuucil in
sami" nature m that possessed by allowing or disallowing proviuciul
the (^lu'en's direct irptpsontative Acts. (6VfSoc. li)

B.N.A. ACT, H. 15.— GOVERNOR-GENERAL.

Command of
armed forces to
coiitinuc^ to be
vested in the
Queen.

General, such of the powers, authorities and functions
of the Governor-General as the Governor- General deems
it necessary or expedient to assign to him or them,
suhject to any limitations or directions expressed or
given hy the Queen; hut the appointment of sucli
deputy or deputies shall not affect the exercise by
the Governor-General himself of any power, authority
or function.^

15. The command-in-chief of the land ai'l naval
militia, and of all naval and military forces, of and

MUSOBAVE V.
PULIDO.

' See sec. Go as to the Provinces.
Does Ihi.s mean that there may
l»e two persons with jjower to exer-
cise one function ? 'J'he clause
proridcs the Governor-Genera! may
appoint a deputy and may at the
same time reserve the power of him-
self exercising the functions. (Att.-
Genl. Canada r. Att.-CJeid. Ontario,
1H92, 3 O. A. R. 6; 19 0. R. i7.
Sec wiiere a Deputy - Governor
acted, Rej;. r. the Amers, Felt. 2'3,
1H7H, -12 U. V. Q. B. at p. 40H.)

In MrsiSRAVE r. Puudo, Decem-
ber 13, 1H79, 5 App. Ca,s. 102; 49
L. .J. P. C. 20 ; 41 L. T. 629 ; 28
W. R. 373. There it wa.s held that
a governor of u colony [.Jamaica]
does not j)ossess sovercif!;n power.
His authority is derived from his
commission, and is limited to the
power thereby, expressly or by im-
plication, entrusted to him. And he
may sue in the courts of the colony
of which he is governor. That a
governor of a colony is in the
nature of a viceroy was said to be
laid down by Lord Mansfield in
Mostvn 1'. Fabrigas, 27 January
1775," 1 Cowp. 161-172; 2 W. Bl.
929. But this was declared to be
without legal foundation in H!l! v.
Bigge, 4 December 1841, 3 Moo.
P. C. 46.5. By Lord Brougham,
who also snid Mostyn r. Frubrigas
WH.S only a decision that Governor
Mostyn was liable to 1)e sued in
England for personal wrongs done
bj him while Governor of Minorca.

In Hill r. Bigge, counsel for Gover-
nor, Sir G. F. Hill, the appellant,
said the point had been expressly de-
cided in Canada in Harvey v. Lord
Aylmer, 1 Stuart, K. B. L. (J. 542 ;
that there an action of debt was
brought against the governor by a
servant f-^r wages. The governor
j)leadcd in. governorship and the
exception was allowed. But it is
to be observed Sewell, C.J., in
giving this judgment, relied on
Mostyn v. Fabrigas, Lord Broug-
iiam in Hill c. Bigge cited Dutton
r. Howell, executor of Sir John
Wvtham, in the House of Lords,
27" January 1693 (Shower 24), and
.stiid that the acquittal of the gover-
nor there went upon the ground
that the governor and his council
had acted judiciously.

It ajjpears from the printed papers
of Dutton r. Howell in the House
of Lords tliat Sir Richard Dutton,
going on leave t)f absence from
Barbados, appointed Sir .John
Wytham Deputy-CJovernor ; that
Sir Richard Dutton on his return
received complaints against Sir
John. He and his Council there-
upon ordered the connnittal of Sir
.John Wythnm. On Sir Richard
Dufton's return to England, Sir
.Joiin Wytham raised this action in
Enghind against Sir Richard Dut-
ton and five other tlefendants, his
Council. The jury gave £500 for
the imprisonment, and the Exche-
quer Chamber affirmed this decision,
but the House of Lords reversed it.

B.N.A. ACT, s. 16.— PRIVILEGES OF PARLIAMENT. 11

in Canada, is hereby declared to continue and be vested
in the Queen.

16. Until the Queen otherwise directs, the seat of ^ZlilF^''""
irovcrnmcnt of Canada sliall be Ottawa. Canada.

IV. — Legislative Power.^

17. There shall be one Parliament for Canada, con- Constitution of

*' • ' Pari lament of

sisting of the Queen, an upper house styled the Senate, Canada,
and the House of Commons.

18.'^ The privileges, immunities, and powers to be If^]^^^^ *'^"
held, enjoyed, and exercised by the Senate and by
tlic House of Commons, and by the members thereof
respectively, shall be such as are from time to time
(Ictined by Act of the Parliament of Canada, but so
that any i\ct of Parliament of Canada defining such
privileges, immunities, and powers shall not confer any
privileges, immunities, or powers exceeding those at
the passing of such Act held, enjoyed, and exercised by
tiu' Commons House of Parliament of the United King-
dom of Great Britain and Ireland, and by the members
thereof.

' Coinpnif this language with
the langiiagc of .sec. .58 ct seq,,
giving power of legi.shition to the
provinces. Sea Uiol r. the Qiicon,
October 22, 1885, 10 App. Ca.s.675.
The prisoner was tried under pro-
visions of the Dominion Act, 43
Viet. 0. 25., autliorised by the Ini-
l)erial Act, SI & 35 Vict. c. 28.,
proviihng a mode of criminal trial
for the N(irth-West Territories
different from Knglish criminal pro-
cedure. The trial was held good.
[See .sec. i»2, sub-sec. 27.]

See for ipiestion of precedence
between Queen's Counsel appointed pealed, without prejudice to any
by the (Jovernor-Geueral and the tiling done under that sectiou,
provinces, Lenoir c. Ivitchie, and the following sectiou shall 1k'
November 1, 1879, .3 S. C. R 575. substituted for the section so re-
Sw.sees. 9, G4,and ()5. This case pealed."

deciiled tlmt Lieutenant-dlovernors After tleclaring there shall be
coidil appoint Queen's Coun.s«d, but one Parliament of Canada, this
it was ultra rircs to give them pre- .section provides for Parliament's
^dence over previously appointed privileges. (See Valin r. Langlois,
Dominion Queen's Counsel. 3 S. C. R. 1. In P. C. December 13,

The Mini.ster of .Justice, 21 Feb-
ruary 1874, as regards a Mani-
toba Act which used the word
" parliamentary," and as regards
an Ontario Act, 31 Vict. c. .'UK sec.
12, in which the same word was
u.sed, recommended that the word
shovdd be explained as metuit to
signify only the local asseniblv.
(Prov. Leg'., 1886, p. 591.)

~ The original section was re-
pcah'd by 38 & 39 Vict. c. 38.
(1875) s.'l:—

" Section 18 of the British North
American Act, 18G7, is heieby re-

12 B.N. A. ACT, s. 19.— PROVmCIAL PRIVILEGES.
First session of \Q^ ^lie Parliament of Canada shall be called to-

tho Parliament

of Canada. E:ether not later than six mouths after the Union.

Yearly session
of the Parlia-
ment of
Canada.

Number of
Senators.

20. There shall be a session of the Parliament of
Canada once at least in every year, so that twelve
months shall not intervene between the last sitting of
the Parliament in one session and its first sitting in
the next session.

The Senate.

21. The Senate shall, subject to the provisions of
this Act, consist of seventy-two members, who shall
be stvled Senators.

1879; 5 App. Cas. 115; 49 L. J.
P. C.37; 41 L. T. U(i2 ; amlDo-
ininion Act 37 Vict. c. 10.

RiEL V. The In Riel r. Thk Qukkn, Oct.

QuHBN. 22, 1885, 10 App. Ciis. G75, the

Doininiou tried Kiel for high
treason under iin Act constituting
a different criminal proce(hne than
that estahlislicd in England.

The Minister of Justice (J. A.
M'.cdonald) reported, 3 November
.809, that the Quebec Act, 32 Vict,
c. t., to define the privileges
and immunitii's of the Legislative
Council and Legislative A.ssend)ly
of Quebec, was nltni rircs , no
power being given to the i)rovin-
cial legislature to <lefine and esta-
blish their privileges as is given by
the IHth section to the general
Parliameut. The Act was ihsal-
lowed. (Prov. Leg. Corresi)oiul-
euce, Ottawa, 1886, p. 23(3.)

The legislatures of Ontario, Bii-
tisli Columbia, and Manitoba, all
fell into the same error of attempt-
ing to define their privileges, &c.,
and protect persons in publishing
the sessional papers, and these local
Acts were all di.sidloweil. (Blue
Book, 1886, 596.)

The Rpkakbb In TiiE Speaker of the Leois-

OK THE Leois- l^tive Assembly v. Glass, Jan-

sEMBTv.GtABB. uary 31, 1871, L. R. 3 P. C. 560,

where the above clause is found

in the Constitution Act of Victoria,
18 & 19 Vict. c. 55. s. 35, it was held
that the statute gave the Legislative
As.send)ly the same powers and
privileges as the House of Conmions
had at the time of the passing of
the statute of conunitting for con-
tempt. See also Dill r. Muri)hy,
2 February 1861, 1 Moo. P. C.
N. S. 187. But in the case of the
Lcgislatiu-eof Newfoundland,Baron
Parke in Kiellev v. Carson, Utli
January 1813, 4 Moo. P. C. j). 92,
said that although local lesjisla-
tures liave every power rea.soiialdy
necessary for the proper exercise of
their functions and (hities, they had
not the same exclusive privileges
which the ancient law of England
has annexed to the House of Parlia-
ment. There were present ten
Privy Councillor.s, including Lord
Brougluun, L.C., and Lonls Den-
man, Abinger, Cottenham, and
Campbel'. Baron Parke there
doubted the soundness of his own
decision in Beaumont r. Barrett,
17 June 1836, 1 Moo. P. C. 59;
and Lord Ellenborough's in Bin-
dett r. Abbot, 14 East 137. See
also Fenton v. Hampton, 11 Moo.
P. C. 317, and Doyle r. Falconer,
L. R. I P. C. 328, on legislative
powers; and Herbert f. Purchas,
L. R. 3 P. C. 664, on finality of
the Privy Council judgments.

'.•^^ifTin^^iT^

B.N.A. ACT, «. 22.— SENATORS.

22. In relation to the constitution of the Senate Representation

of provinces in

Canada shall be docmecl to consist of three divisions : Stn^te.

1. Oiitario ;

2. Queheo ;

3. The maritime provinces, Nova Scotia and New

Brunswick ;
which three divisions shall (subject to the provi-
sions of this Act) be equally represented in the
Senate as foUoAvs : Ontario by twenty-four Senators ;
QiD'bPC by twenty -four Senators ; and the maritime
provinces by twenty-four Senators, twelve thereof
r('])resenting Nova Scotia, and twelve thereof repre-
senting New Brunswick.^

In the i^ise of Quebec each of the twenty-four
Sonatoi's representing that province shall be appointed
for one of the twentv-four electoral divisions of
Loii-er Canada specified in Schedule A. to Chapter
one of the Consolidated Statutes of Canada.

23. The (lualifications of a Senator shall be as yuoiiflotions

*■ ot Senator.

follows :
(1.) He shall be of the full age of thirty years :

(2.) He shall be either a natural-born subject
of the Queen, or a subject of the Queen
naturali/ed by an Act of the Parliament of
Great Britain, or of the Parliament of the
United Kingdom of Great Britain and Ireland,
or of the Legislature of one of the provinces
of Upper Canada, Lower Canada, Canada,
Nova Scotia, or New Brnnswick, before the
Union, or of the Parliament of Canada after
the Union :

(15.) lie shall be legally or equitably seised as of
freehohl for his own use and benefit of

' Additional meml)er8 have been
suininoiiid to the Senate repre-
st'iitiuf? tlif proviiiues iil' Uritisli

Columbia, Manitoba, Prince Ed-
ward Lsland, und the Xorth-West
Territories,

14 B.N.A. ACT, s. 24 — SEJf ATORS' QUALIFICATION.

lands or tenements held in free and com-
mon socage, or seised or possessed for his
own use and henefit of lands or tenements
held in Franc -alien or in Roture, within
the province for which he is appointed,
of tlio value of four thousand dollars, over
and ahove all rents, dues, dehts, char<:?es,
mortgai^es, and incumhrances due or pay-
ahle out of or charged on or afPecting the
same :

(4.) His real and personal property shall be to-
gether worth four thousand dollars over and
ahove his dohts and liabilities :

(5.) He shall bo resident in the province for Avhich
he is ajipointed :

(6.) In the case of Qufihec he shall have his real
property qualification in the electoral division
for Avhich he is appointed, or shall be resident
in that division.

Summons of
Senator.

24. The Governor-General shall from time to time,
in the Queen's name, by instrument under the great
seal of Canada, summon qualified persons to the
Senate ; and, subject to the provisions of this Act, every
person so summoned shall become and be a member of
the Senate and a Senator.

Summons of
first body of
Senators.

Addition of
Senators in
certain cases.

25. Such persons shall be first summoned to the
Senate as the Queen by warrant under Her Majesty's
royal sign manual thinks fit to approve, and their
names shall be inserted in the Queen's proclamation of
Union.

26. If at any time on the recommendation of the
Governor-General the Queen thinks fit to direct that
three or six members be added to the Senate, the
Governor-General may by summons to three or six
qualified persons (as the case may be), representing

B.N.A. ACT, s. 27 —LOSS OF SENATORSHIP.

equally the three divisions of Canada, add to the
Senate caccordingly.

27. In case of such addition being at any time made, ^''|'"',''°" °^
the Governor- General shall not summon any person to iiormiiinuniiur.
tli(5 Senate, except on a further like direction by the

Queen, on the like recommendation, until each of the
three divisions of Canada is represented by twenty-
lour Senators and no more.

28. Tlic number of Senators shall not at anv time ^ia:t;nium

. ■ mimbur of

exceed seventy-eight. Stnators.

29. A Senator shall, subiect to the provisions of this T'""""'^' "<" i>i'«''

» J 1 HI Scimtr.

Act, hold his place m the Senate for lire.

30. A Senator mav, bv writing under his hand, K<-sif;nation of
addressed to the Governor-General, resign his place

in the Senate, and thereupon the same shall be vacant.

31. The place of a Senator shall become vacant in Di.s.|Uiiiifica-
any of the following cases : — .Seimtors.

(1.) If, for two consecutive sessions of the Parliament,
he fails to give his attendance in the Senate ;

(2.) If he takes an oath or makes a declaration or
acknowledgment of allegiance, obedience, or
adherence to a foreign power, or does an act
Avhereby he becomes a subject or citizen, or
entitled to the rights or privileges of a subject
or citizen, of a foreign power ;

(3.) If he is adjudged bankrupt or insolvent, or
apphes for the l)enefit of any law relating to
insolvent debtors, or becomes a public de-
faulter ;

(1.) If he is attainted of treason or convicted of felony
or of any infamous crime ;

(5.) If he ceases to be qualified in respect of property
or of residence : provided, that a Senator shall

':9 t

Hiiiiiinoiis on
vaciinoy in
Sfimlc.

Questions as to
qiialifioations
1111(1 vacani'iis
in Senate.

Appointment
of Speaker of
Senate.

Quorum of
.Senate.

Voting in
Senate.

Constitution
of Ilonoc of
Commons in
Canada.

10 B.N.A. ACT, s. 32.— THE COMMONS.

not be deemed to liave ceased to be qualified in
respect of residence by reason only of his resid-
ing at the seat of the Government of Canada,
wliih; holding an office under that Government
requiring his presence there.

32. Wh(in a A'acancy happens in the Senate by resig-
nation, death, or otherwise, the Governor- General shall
by summons to a lit and qualitied person, fill the
A^acancy.

33. If any question arises respecting the qualification
of a Senator or a vacancy in the Senate, the same shall
be heard and determined l)y the Senate.

34. The Governor-Gencn-al may, from time to time,
by instrument under the great seal of Canada, appoint
a Senator to bo Speaker of the Senate, and may remove
him and appoint another in his stead.

35. Until the Parliament of Canada otherwise pro-
vides, the prc^sence of at least fifteen Senators, including
the Speaker, shall be necessary to constitute a meeting
of the Senate for the exercise of its powers.

36. Questions arising in the Senate shall be decided
by a majority of voices, and the Speaker shall in all
cases have a vote, and when the voices are equal tho
decision shall be deemed to be in the negative.

The House of Commons.

37. The House of Commons shall, subject to the pro-
visions of this Act, consist of one liundred and eighty-
one members,^ of whom eighty-two shall be elected for
Ontario, sixty-five for Quebec, nineteen for Nova Scotia
and fifteen for Netc Brnnsicick.

' Tncroased by tlie addition, iiiidor soe. 51, of the extra provincfB
which have joiued the Union.

B.N. A. ACT, s. 3S.— PARLIAMENTARY ELECTORS.

lalified in

his resid-

Canada,

vernment

hy rosiw-
eral shall
, fill thp

ilification
amc shall

B to time,
t, appoint
ly remove

wise pro-
including
\ meetinj;

)o decided
lall in all
equal tho

0 the pro-
d eighty-
ilected for
)va Scotia

in provmcuB

38. Tlu> Governor-General shall from time to time, SummoniDg ..f

" Hou.se of

in tlu> QiiccMi's name, hy instrument imder the great Commons,
seal ol" Canada, summon and call together the House of
Commons.

39. A Senator shall not ho capahle of being elected Seniitors not to

"*^ _ . sit in the House

or of sitting or voting as a member of the House of of Commons.
Commons.

40. Until the Parliament of Canada otherwise pro- KiMtorai dis-

^^' ^ triets of the

vidcs, Ontario, Quebec, Noca Scotia, and New Brunstoick I'our Provinces.
shall, for the purposes of the election of members to
servo in the House of Commons, be divided into elec-
toral districts as follows : —

1. — Ontario.

Ontario shall be divided into the counties, ridings of

counties, cities, parts of cities, and towns enumerated

ill the First Schedule to this Act, each whereof shall be

, an electoral district, (nich such district as numbered in

that Scheduh; being entitled to return one member.

2. — Quebec.
Qnet)ec shall be divided into sixty-five electoral
[districts, composed of the sixty-fiv(5 electoral divisions
[into which Lower Canada is at the passing of this Act
[divided under Chapter tvvo of the Consolidated Statutes
tof Canada, Chapter seventy-five of the Consolidated
iStatutes for Loirer Canada, and the Act of the province
|of Canada of the twenty-third year of the Queen,
!Ilui])ter one, or any other Act amending the same in
force at the Union, so that each such electoral division
fchall be for the purposes of this Act an electoral
istrict entitled to return one member.

3. — Nova Scotia.
Each of the eighteen counties of Noca Scotia shall
1)6 an electoral district. The county of Halifax shall
>e entitled to return two members, and each of the
ther counties one member.

S 2340. B

' I

BN.A, ACT, H. 41— ELECTION PETITIONS.

i'}

4. — New Brunswick.

Eiich of the fourt(>on counties into whicli Noir
Brunswick is divided, including" the eitv and county of
*S7. John, shall be an electoral disti-ict. Tlu^ city of
St, John shall also be a sej)arate electoral district.
Each of those lifteen electoral districts shall l)e en-
titled to return one member.

continuanc. of ^j Until the Parliament of Cawrt^/^^ otherwise lu'o-

cxifiting clip- _ _ '

twn laws until vidcs, all laws in forc(^ in the several provinces at th(>
Canada other- Uuion relative to the folloAving matters or any of tluMu,
wise provKies. j^jj^j^^^^jy^ — ^\y^ (jualitlcations and disqualifications of

persons to l)e elected or to sit or vote as members of
the House of Assembly or Legislative Asseml)y in the
several provinces, the voters at elections of sucli mem-
bers, the oaths to be taken by voters, the returniiiif
officers, their powers and duties, the proceedings at
elections, the periods during which elections may bo
continued, the trial of controverted elections, and pro-
ceedings incident thereto, the vacating of seats of mem-
bers, and the execution of new writs in case of seats
vacated otherwise than by dissoluticm, — shall rc^spcctively
apply to elections of members to serve in tlu; House of
Commons for the same several [)r()vinces.'

Provided that, imtil the Parliament of Cmuida othcM'-
wise provides, at any election foi' a member of the
House of Commons for the disti-ict of Jhfoniu, in
addition to persons qualified by the law of the jjroviiur
of Canada to vote, evei'y male British subject, aged
twenty-one years or upwards, being a householder,
shall have a vote.

Vauk I'. Lano-
Lois, 1879.

'VAr,iN<-.LANGi.(»is,2H Oct. 1870,
3 S. V. K. I. In v. V. 13 I).c.
1H79 [pie.seiit. Lord St'lborno, Sir
J. W. Colvile, Sir Barnes Pcaeocix,
Sir M.E.Sniith.und Sir 1{. Collier],
5 App. Cas. 1 15; IS) L. J. P. C. 37 ;
4 1 L. T. (562. This was an applica-
tion for special leave to appeal, luul
an attack upon the Dominion Act,

37 Vict. c. 10., Trial of Election
Petitions, which Act, inter alia,
conferred power upon the Quelico
Supci'ior Court to hear an election
petition.

Lord Selborne said : '* Their Lonl-
shii>s liave carefully consi<lered tlii'
able arfjunient they have iieard from
Mr. Penjaniin, and they feel {jlml
.so full an argument has heen offend

B.N.A. ACT, H. 41.— LEAVE TO APPEAL.

to tlit'iu, lK!cmisi! there can bo no
iloiilit tliiit the matter i.s one of great
impDitiiiice. Tlie petition is to ob-
tain liMve to appeiil from two con-
eiuTOiit jiKJgmi'nts of the court of
first iiistaneo an(l of the Court of
A|i|M'alatlirmin<j; the competency and
viilidilv of an Act of tiie Dominion
Ii('j;isliitnro of Canmhi. Notiiing
can licof more ini])ortance, certainly,
limn a (jiicstion of that nature, ami
tlio snhject mattei' also, iwing tlie
nioiic of determining election pe-
titions in cases of controverted elec-
tions to seats in the Parliament of
Ciiiiada, is beyond nil doubt of the
^ri'iilest general ii.!i oitance. It
tiicrel'ore would have been very un-
siitisliu'tory to theii' Lordships to
dispose of such an application with-
out, nt least, having had the grounds
ol' it very I'ldly presented to them.
'I'liiit lias been done, and I think I
may venture to say for their Jjord-
siiips generally, that they very
luuc'li doubt whethei' if there had
lioen an appeal, and counsel present
on liotli sides, the grounds on which
an appeal would have; been suppor-
ted or might ha\e been supported
could have been better presented
to their Lordships than they ha\('
Iwcn upon the present occasion.

•• In that state of the ca.se their
Lordships nnust renicnd)or on what
principles an application of this sort
shoulil be granted or refused. It
has liceii rendered neces.snrv bv the
lc>;isiati(Ui [.38 Vict. e. H."] which
lias taken place in the colonv to
uiakc a special ap[)lication to the
Crown in such a ca.se for leave to
ii[ipt'al ; and their Lordships have
(k'cided on a former occasion [Min-
ister of St. Andrews r. Johnston,
\)w. U), 1H77, where all the ca.ses
arc noted. See Wheeler's P. C.
Law, !).J7 ; 3 Ap|). Cas. 15f); 37
L. T. ooG ; 20 W. «. 35!)] that a
siHcial application of that kind
should not be lightly or very easily
<:iantc(l ; and that it is necessary to
show both that the matter is one of
iiiiportancc, and also that there is
loaily n substantial question to be
ilctcruiined. It has been aheadv

said that their Lordships have no Vai.in v. Lano-
doiilit about the importance of this '•'*"*' '^"'''•
question, but tlie consideration of
its importance and the natiu'e of tin.'
question tell both ways. On the
one hand, those considerations
would undoubtedly make it right to
permit an a{ipeal, if it were shown
to their Loi-dshi|)S, prima facie,
at all events, that there was a serious
and a substantial question, re(iuiring
to be di'termined. On the other
hand, the .same considerations make
it unfit and ine.vpedient to throw
doubt upon a great (pu'stion of con-
stitutional law in Canada, and
ui)on a decision in the Court of Ap-
peal there, uidess their Lordships
are satislied that there is pritnd
/(trie a serious and a suksttintial
(piestion requiring to i»e determined.
Their Lordships are not .satislied in
this case that ther(> is any such
(|uestion, inasmuch as they entertain
no doubt that the decisions of the
lower courts were correct.

" It is not to be [)resunied that
the Legislature of the Dominion lias
exceeded it powers, unless upon
grounds of a serious nature. In
the present case, their Loi'dships
find that the subject matter of this
controver.sy, that is, the determina-
tion of the way in which cpiestions
of this nature are to be decich'd as
to the \ali(lity of the returns of
members to the (^anadian Parlia-
ment, is, beyond all doui)t, placed
within the authority and the legis-
lative power of the Dominion Par-
liament by the 41st section of the
Act of 1H()7 ; iqion that point no
controver.sy is raised. The contro-
ver.sy is .solely whether the power
which that Parliament possesses of
making provision for the mode of
determining such questions has
been conn>etently or incompetently
exercised. The only ground on
which it is alleged to have been in-
competently e.verci.sed is that by the
91st and 5)Und sections of the Act of
1807, which distribute legislative
powers between the provincial and
the dominion legi'^latures, the Do-
minion Parliament is exclude»l

B 2

U.N.A, ACT, H. 41— COURTS AND NEW DUTIES.

! •

Valin v. Lan<j- from tlio power of Icf^isliitin j; on im v
LOIS, 1870. iniitltT oomiiifj williiii tliosc cIhsscm

ol' Miilijecis wliicli arc iissifj;ii('(l i \-
(•lllsi\cly to tlif Icjrisliitm't's (if IIm^
proviiii'os. [Ifciids Mih-sco. II,
SCI'. !)li.] Tlic iiinmiiciit wliicli
lias liccii olfcicd lo llicir Lonlsliips
lo iixliicc lliclii III conic lo tlic coii-
flusioii that llicic is licre a serious
(lucslioii to lie (Ictcniiinc'd, is tliat
the Act, 1H7I, ;i7 Viet. c. 10., the
\jili(litv of which is ciialicii;ic(l,
coiitiavciics this piiiticiiinr pni\i-
sioii of the sec. {)-, which cxelil-
Hivfly assifjiis to tiic provincial
lcj;islaturcs the power of lc;;islatiii<;
fnr the adniiiiist lilt ion of justice in
tlic provinces, iiicliidinjj; the consti-
tution, niainteiiiince. and or^ani/a-
tion of provincial courts of civil
and criminal jurisdiction, and in-
cliidinj^ procedure in ci\ il (not in
criminal) matters in those courts.
Even if the tlsf sec. were not in the
Act, it would 111 it lie ipiite plain
that the tninsfer of the jui'isdictiim
to determine upon the ri<;ht to scat.s
in the Canadian ije;;islatnrc — a
thini^ which had liecn always done
not hy courts of justice, hut other-
wise — would come within the
natural import of those general
words, 'The administration of jus-
tice in the provincial courts and
procedure in civil matters in tIio.se
courts.' Hut (luc thing, at least, is
clear, that those words do not point
expressly, or liy any necessary im-
l)lication, to the particular suliject
of election petitions; and when we
find in the .same Act another
clause which deals expressly with
those petitions, there is not the
smallest dilHcultyin taking the two
clauses together and placing upon
them both a consistent construc-
tion. That other clause, the
'list, ex])re.ssly .says that the old
mode of dctermiiiing this class
of rpiestious was to continue until
the Piirliament of Canada should
otherwise provide. It was, there-
fore, the Parlianu'Ut of Canada
which was otherwise to provide.
It did otherwi," provide hy the Act
of 1H73, which Act it afterwards

altered, and then passed tlie Act
now in (piestiiin. .So far, it is very
ditlicult to suggest any ground iipnii
which the competency of the i'lir-
liaiiicnt of Canada so to Icgishile
ciiiild lie called in tpiestion. Mill
the griiiiiid which is suggested is
this, that it lias seeincil lit to tlic
J'lii liameiit of Canada to confer liic
jurisdiction necessary for the ti'i;il
of cleetioii petitions upon courts ut'
(ii'dinary jurisdiction in the pm-
viiiccs, and it is .said that allhoiigli
the I'ai'liamcnt of Canada might liinc
provided in any other nmiiuer i'nr
those trials, and might have creatiil
any new courts for this ]iiirpiise, it
could not coiiiiiiit the exercise of
such a new jurisdiction to any
existing provincial court." Their
Lordships " are at a lo.ss to follow
that argument, even supposiii};
that this were not in truth and
in sulistaiice the creation of a new
court. If the siilijcct-umtter is with-
in the jurisdiction of the Dominidii
I'arliament it is. not within tlie
jurisdiction of the Pi'ovincial Par-
liament, and that which is exdudiil
by theillst .sec. from the jiirisdictiuii
of the Dominion I'ar .ameiit is nut
anything else than matters coming'
within the cliis.sesof subjects assign-
ed cvvliisirely to the legislatures of
the provinces. The only mali'riii!
class of subjects relates to the ad-
ministration of justice in the pro-
vinces, which, rciul with the 41st
sec, cannot be reasonably taken to
have anything to do with electinii
petitions. There is, thcreforp.
nothing here to raise a doubt about
the power of the Dominion Parliii-
nient to impose new duties upon
the existing provincial courts, nr
to give them new powers as to mat-
ters which do not come within tin
classes of subjects assignc' \c'
sivcly to the legislatures ''
vinces. But in addition i . ap-

pcarsthatbythcActof 1 which,

even by tho.se judge.s wli re said
to have disputed the competency of
the Act of 1H74, isjuhnitted to havi
been competent to the Dominion
Parliament, what a[)pears to their

B.N. A. ACT, H. 41 —NEW JURISDICTION.

LonlsliipM to be exactly the same
tiling' in siilistimec, nnil not so very
ditlVrcnt cvt'ii in form, wiis (lone,
it WHS intcndcil timl whrn ii court
ul' ii|i|H'al siiould l)t' I'onstitiitt'tl f'oi-
till' Dominion, a ju(l;,'(' of timl court
of aiipi'al sliouid l)c the jndj^c in
tiiL' lirst instance of election [)eti-
tieas, and tliree judifes of the same
fourt should have power to sit in
a|)penl from any judj^ment of a
siiij,'lc jud^e. But it was necessary
also to provide for tlu! interval
iictween the [jasssingof the Act and
till' constitution of such a court oi
appeal ; and that Act of IH7.H pro-
viiled that in th" meantime the
jiiiljje.s of the exislinj^ [U'ovincial
ciMirts should exercise, unilcrrogula-
tioiis contained in it, the same juris-
diction. It ilid not, indeed, say the
cniirts ; if .said the judges of the
courts, and that is I'cally, in their
Lonlsliips' view, the sole difference
lor tliis purpose between the Acts
of 1S73 and lH7i. The Act of
1H7I in siiiistance does the same
tiling, except that in the definition
clause if uses this language: 'The
('Xi)i'cs--ii)ii "the court," as respects
elcctiiiiis in the several [)ro\inccs
lu'iciiiiifter nientioiicd respectively,
sliiill iiieiiu the courts hereinafter
iiiciitioued or any judges there-
of,' and then it mentions by
tlicir known names the existing
courts of the different provinces.
When their Lordships go on to
look at the provisions which fol-
low ill the Act, if is clear not only
tliat a new jurisdiction is conferred
upon these courts, but that cvery-
tliing necessary for the exei'ci.se of
thiit new jurisdiction is provided
loi'jcveu the power to takeevidenee;
it i" Slid tliaf a single judge in ro-
11, ami not the entire court, is
to I X. icjsc that jurisdiction, and in
the -til sec, ' That on the trial of
I'l' tion petition, and in other
proivcdings under this Act, the
juflge shall, subject to the pro-
visions of this Act, have the .same
powers of jurisdiction and authority
iis a juil<;e of one <i the .superior
courts of law or ecpiity for the pro-

vince in which such election is held, Vamv v. Lano-
sitting in term, or proceeding at the ''"'*' '^^''•
trial of an ordinai'y ei\il suit, and
the court held by liim in siicii trial
shall be a court of record.'

*' Words (oiild not lie more plain
than those to create this as a new
court oi' ri!cord, and not the old
court, with some siiperaddeil juris-
diction to l)e exercised, as if it IiikI
been part of its old jurisdiction.
And all that is said tis to the em-
ploynu'iif of the same otlicers, or of
any other machinery of the couit for
ceitain purposes — defined by refer-
ence to the existing i>roccdure of the
courts — shows that tli(> Dominion
Legislature was throughout deuling
with this as a new jurisdiction
created by itself, although in many
ca.ses adopting, as it wasconvtMiient
that it should adopt, existing ina-
ehinery. Therefore, their Lordshij)s
see nothing but a nominal, a verbal,
and an unsubstantial distinction
between this latter Act, as to its
principles, and those provisions of
the former Act, which all the judges
of all the courts in Canada, appa-
rently without ditliculty, held to be
hiwfiil and constitutional."

His Lordship then referred to
the allegation that some of the
judges had declined to exercise this
jurisdiction, and said nothing had
been stated to lead their Lordships
to apprehend that there is any real
probidtility that any judge of the
inferior courts will hereafter dis[)Ute
their obligation to follow the ruling
of the Supreme Court, unless and
until it shall be reversed by Her
Majesty in Council. " Under thcst-
circumstances, their Lordships are
not persuiuh'd that there is any
reason to apprehend ditliculty or
disturliance from leavinguntouehed
the decision of the Court of Appeal.
Their Lordships are not convinced
that there is any reason to expect
that any of the judges of the court
Ik'Iow will act otherwise than in
due subordination to the; appellate
jin'isdiction, or refuse to follow the
law as laid down by it." If, in-
deed, there had been " produced in

:|:l

SI!

22 B.N.A. ACT, ». 42— VACANCY IN UKPKESENTATION.

Vaun r laso- llic iiiiiitis of iiny of their Lordships 1m' fjii'iiicd, mul that the |K'titioii
1.0IS, 1879. thmbtsof tiu'souti<hicss of iho dt'ci- should he disiiiiss^«d."

Writs (or tirst
I'U'Ctiiiii.

As to cnsuiil
vncHncies.

sioii of ihf Couit >f Appciii, tlu'ir
Lordships would lunc felt it tlicir
(hity to advise Her Majesty to
fjiaiit the leave wliieh is now
asked for; liiit, on the eoiitiary,
tile result of the whole arfjuuient
has heeri to leave their Lordships
under the impression that thei'e i«
here no sulistantial <pu>stion at all
to Ih' determined, and that it would
he nnieh more likely to unsettle
theniindsof Iler Majesty's sidijeels
in the Dominion, and to distnri) in
an inconvenient nnuuier the h><;is-
lalixe and other jtroeeedinj^s there.

Scr ('ana<lian eases: Niapira
l<:ieeti:.n ease, li!) I'.C.C. P.UtU ;
Helaufjer .•. Caron, 5 Q. L. W. U) ■
(Juay r. Jhmeiiet, 5 Q. L. |{,
■ill; Hrunean r. Massne, '2',i li,
V. Jur. (iO; White r. Maeken
/ie, 20 L. C. Jnr. '22; Hvan r.
Devlin, 20 L. (V .inr. 77; Owens
i: Cushin.', 20 L. C. Jnr. ^0 ; ami
'l'hel)erf;e r. Landry [C^iieltec
Election Petitions], Nov. 7. lS7(i,
2 App. ('as. 102; iO L..LI'.('. 1;
.{.') L. r. (} 10 ; 25 W. W. 2 1() ; Knji-
lish Kleetion I'etitions, Peel's Act,
1H3!), and Loi'«l SeUH)rne in (^ueeii

if they were to j;rant the pr-ayer of r. Hurah, .Iinie 5, 1H7H, .'{ Ap|

this petition, and so throw a doid)t ('as. at p. !)0I. Colonial lej^isla-

on the validity of the dei'ision of tni'cs haxc powers expressly limited

the Coint of Appeal helow, than if hy the Lnperial Act which created

they were to advise Her Majesty to them, and when actin<; within those

I I'fnse it. I'nder these eireum- limits ha\e " plenai-y powei's of

sV'inees, theii- Ijordships feel it tlieii' l<'<;islalion as larj^e and of the .same

duty hunihly to ad\ ise IL'r Majesty natin'c .is tho.se of the Imperial Par-

tliat the lea\i- to appeal should not liament il.self."

42. Ji^'<»i' the lirst ch'dioii of iiioiiibcrs to servo in
tlu' llon.sc of Commons tlu' (jovonior-CiiMun'al sli.tll
(jiuisc writs to be i.ssiicd hy such lUM'son, in such Torni,
and achh'osst'd to such rctununt^ oMictM's tis he tliinks tit.

The person issuina^ writs under tliis sccti( n shtill
hjiA'e tlu' like powers ;is are possessed at the Union by
tlie oflieers chiir<;ed witli the issuing; of writs for the
election of nienibers to serve in the respective llniisc
of Assembly or Lei^islativc Assembly of the province
of Co inula, yoco Scot id, or AVvr Bmuswick ; jind the
retiUMiini*' otlicers to whn i writs are directed under
this section shall have the like powers tis are po,ssess(>(l at
the Union by the ollicers char<]fed w ith the returning? of
writs for the election of members to serve in the same
respective J louse of Assembly or Lei^islntivo Assembly.

43. In cas«' ji vacancy in the representation in /'c
] louse of Commons of any electoral district liaj)-
j)ens before the meetinji; of the l*arlianu'nt, or after
the meeting of the rarliament before provision is
made by the i'arlijinient in tliis beliall', the provisions

I I

B.N.A. AC'l', s. 44.— THE SPEAKER.

of the last foregoing section of this Act shall extend
and iipply to the issuing and returning of a writ in
respect of such vacant district.

44. The House of Commons, on its first assembling
after :i general election, shall proceed with all practicable
speed to elect one of its members to be Speaker.

45. in case of a vacancy happening in the office of
S])Oiiker by death, resignation or otherwise, the House
of Coininons shall, with all practicable speed, proceed
to elect another of its members to be Speaker.

46. Tlie Speaker shall preside ut all meetings of the
llou.se of Commons.

47. Until tlie Parliament of Canada otherwise pro-
vides, in cas(« of the absence for any reason of the
Speaker from tiie chair of the House of Commons, for
a piriod of forty-eight consecutive hours, the House
may elect another of its members to act as Speaker,
and the member so elected shall, during the con-
tinuance of such absence of the Speaker, have and
exeenU' all the powers, privileges and duties of
Speaker.

48. The presence of at leart twenty members of the
House of Commons shall be necessary to constitute a
meeting of the House for the exercise of its powers ;
and for that pur])ose the Speaker shall be reckoned as a
memher.

49. Questions arisin;.- in the House of Commons shall
be (l('ci(U'(l by a majority of voices other thjin that of the
Speaker, and when the voices an? equal, but not other-
wise, the Sj)eaker shall have a vote.

50. Every House of Commons shall continue for five
U'ars from the day of the return of the writs for choos-
iiii? the House (subject to be sooner dissolved by the
Governor-General), and no longer.

51. On the completion of the census in the year om^
thoiisiind eight hniuhrd and seventy-one, and of each

As to election
of Speaker of
House of
CommuiiN.

A.M to filling np
Vftcaney in
oflieo of
8^eiiker.

Speaker to
preside.

Provisioi' ' 1

ease of :ivsoiice
of .Speukf : .

Quorum of
House of
CommonN.

Voting in
House c'
Commons.

Duration of
House of
Commons.

Decennial re-
a(\}U8tment of
ropreflentatioD.

24 B.N.A. ACT, b. 52.— INCREASE OF MEMBERS.

■ii

Increneo of
number of
llsuso of
CommoiiH.

subsequent decennial census, the representation of the
four i)rovinccs shall be readjusted hy such authority, in
such manner and from such time as the I'arlianuMit
of Canada, from time to time, provides, subject and
according to the following rules : —

(1.) Quebec shall have the fixed number of sixty-five
members ;

(2.) There shall be assigned to eacli of the other
})rovinces, such a number of members as will
bear the same proportion to the numbcn" of its
population (ascertained at su<di census) as the
number sixtv-five bears to the number of the

population of Quebec (so ascertained) ;

(3.) In the computation of the number of members
for a province a fractional part not exceeding'
oiie-balf of the whole number requisite for
eutitling the })rovince to a member shall he
disregarded ; but a fractional part exceeding
one-half of that number shall be equivalent to
the whole number ;

(4.) On any such re-adjustment the number of mem-
bers for a province shall not be reduced, unless
the proportion which the number of tiie popu-
lation of the j)rovince l)()r(> to the number of
the aggregate population of Canada at the
then last preceding re-adjustment of the num-
ber of members for the })rovince is ascertained
at the then latest census to be diminished l)y
one-twentieth part or upwards ;
(5.) 8uch re-adjustment shall not take effect until
the termination of the then existing Parlia-
ment.
52. The number of nuMnl)ers of the House of Com-
mons may be, from time to time, increased by tin'
l*arliament of Ganaila, provided the proiiortionate
representation of the Provinces prescribed by this Act
is not thereby disturbed.

B.N.A. ACT, s. 53.— MONEY BILLS.

Money Votes. — Royal Assent.

53. Bills for aijuropriatins' any part of the public AppropriHtion

„ . . r> J 1 ^ , „ and tux liills.

revoiiue, or lor iniposing any tax or impost, shall
originate in the House of Comiiious.'

54. It shall not bo lawful lor the House of Commons Rcoommendiv-
to adopt or pass any vote, resolution, address or bill for vot"s? """"^
the api)ropriation of any i)Mrt of the public revenue, or

of any tax or impost, to any jjurpose that has not been
first recommended that House by message of the

' For the House of C'oimuous of
tlic I'nitcil Kiiif^doni, it is flinincd
Money Bills must ori<;iniite tliere-
iii, iUHJ further, it is stii<i, tluit
House will not |)ei'iuit the least
aitei'iition oi' innenduieMt to lie
iiiiide Ity the Lords to this mode
of tiixiiij; the j)e()[)le hv ii Money
Bill. 1 Hlnek. Comm." [ Ith ed.],
137 [(luotinj; .3 Hidlani Const.
Hist. c. l.'{], say.s, mider the i'|)-
jM'iliition of Money Bills " are in-
cluded all Bills hy whieh money is
directed to lie raised upon the suli-
jcct for luy purpose or shape what-
ever; either foi' the exi<;<'n<'ies of
UOVcrnnitMt, and e(ille<'ted from
the k'niyiloin in j^ener'al." ** Y»'t
Sir Matthew Hale mentions one
case, founded on the practice of
Parliament in the rei^n of Heiirv
VI. [Year H(iok,3;{ Henry VI. 17";
lint >ee Sir Henea^e Fini-h's iin-
xwcr, Com. .Jour., 22nd April
U)71 ; 1 Han.sard, 4H0], wherein
he thinks the Lords may alter a
Money Bill; and that is, if tlu' Com-
mons fjrant n tax for four years,
and the Lonls alter it to less time,
II!* for two years ; here, he says, the
Bill need not lie sent back to the
(.'onniions for their eoneiwreuce,
liiit niny receive the Koynl Assent
witlmiit further ceremony ; for this
altcratiiiu of the Lords is consistent
with the ffiiint of vhe Commons."
Now the siune learned author says,
" In any case where a Money Bill
is reumuded to the Commons, nil

amendments in the mode of taxation
are sure to he rejected," and the
Bill woidd 1m' introduced aj^ain
in the Hou.se of Commons. But
whether the Commons have this
cxtrenu- [)rerojj;ative or not, the
making of anu-n<lments is a strong
lever of prott'st, and in a .seriou.s
crisis, from fear or threats of
aliolition, ought not to lie aliau-
doued. It will 1„ notice<l sec. 54
gives a controlling voice to the
Governor-General. In the t'nitcd
States the Senate may propose
or concur in anu-ndments as on
other hills [see sec. 7. art. 1, United
.States Const. ; Storv'.'s Comm,
Const. U.S., 1th ed., sees. H7 l-87()].
Story sjiys, see. 87H, ♦• Indeed, so
little im[iortaiuc ha.s the exclusive
possession of such a powei Im-cii
thought in the State governuients,
that some of the State constitutions
nnule no dillert'iice as to the jiower
< '.' each biiinch of the legislature
to originate . loney Bills. Mo.st of
them contain \ provision similar to
that in the Constitution of the
Cnited States, and in those States
where exclusive power formerly
existed, a.s, for instance, in Viiginiii
and South Carolina, it was a con-
stant .source of ditlicnlties and con-
tentions [2 Elliot's Debates, 2H.V
281], In the revised Con.stitution
of South Cartdina (in 175K)), the
provision was alten-d so as to con-
form to the clause in the Constitu-
tion of the United States."

B.N.A. ACT, s. 55— DISALLOWANCE OF BILLS.

Koval Asspiit
to JJills, &c.

Governor-General in the session in which such vote,
resolution, address or bill is proposed.'

55. Where a Bill passed hy the Houses of the Parlia-
ment is presented to the Governor-General for tin;
Queen's assent, he shall declare, accordinj^ to his
discretion," but subject to the provisions of this Act
and to Her Majesty's instructions, either that he assents
thereto in the Queen's name, or that he withholds the
Queen's assent, or that he reserves the Bill for the
sigaitication of the Queen's pleasure.

Disallowance QQ^ Wlicrc tlic Govcmor-Gcneral assents to a Bill in

by Order iii

Council of Alt the Queen's name, he shall by the lirst convenient
Govmnm" ^ opportunity send an authentic copy of the Act to one
Otncrai. ^^j- |£^,^. ]v|[.ijesty's Principal Secretaries of State, and if

the Queen in Council within two ye-.rs after receipt
thereof bj the Secretary of State thinks fit to disallow
the Act, such disallowance (with a certificate of the
Secretary of State of the day on which the Act was
received by him) being signified by the Governor-
GencM'al, by speech or message to each of the Houses
of the Parliament or by proclamation, shall annul the
Act from and after the day of such signification.'^

57. A Bill reserved for the signification of the
Queen's pleasure shall not have any force unless and
until, within two vears from the dav on which it was
presented to the Governor-General for the Queen's
assent, the Governor-General signifies, by speech or
message to each of the Houses of the Parliament or by
proclamation, that it has received the assent of the
Queen in Council.*

Siffnificntiou of
Quci-n's ploa-
suri' on 15111
rpstrved.

' It appctirs from tliis that tlic
Dominion House of Commons otin-
not puss any Bill for appropriation
of any part of the public rcvcnui'
to any purpose that has not been
first recommended to that House by
the Governor-Gcnprnl. /See sec. 53.

' See sec. II, Note.

■' Sec for uswnt by Governor-

General to precedence of Queen's
Counsel and pi'ovincial Queen's
Counsel, Lenoir r. Hitchie, Nov.
Ith, 1K7!), 3 S. C. K. 575.

* Sec as to consent of Governor-
General to allow or disallow Act.s
of the ])rovincial legislatures, sees.
11, 12, 55, 90, and 1)3, and notex
thereto.

B.N.A. ACT, «. 58 — PllOVIXClAL LEGLSLATURES. 27

An entry of every such speech, message, or pro-
clamation shall be made in the journal of each House,
and a duplicate thereof duly attested shall be delivered
to the proper officer to ha kept among the records of
Canada.

V. — PiioviyciAL Constitutions.

Ed'ocuHve Power.
58. J''or each pi'ovinc(? there shall be an officev, Appointment

y ^ . T 1 1 "^ Lieiitcimnt-

styled the Lieut Miant-Govtn'nor, appointed by the Governors of
Gov('rnor-(reneral in Coimcil bv instrument under the P"*""" ■
great seal of Canada.^

' Tlift'iict tlint whereas tlieCrover-

ii()r-(}i'iu'ral is (lii'eetlviippointol l>v

till' (^iicell, tile Lieilteliaiit-Ciover-

iior of a |)i-()viiiee is a|)[)(>iiite(!, not

liy Her Majesty, hut hy tlie Gover-

iioi'-(reiiefal, wlio has also the |)o\ver

111' (lisiiiissal, eaiiiiut he siieeesst'nlly

iiscil lis an inference that tlie Ini-

|ifriiil Legislature meant to vest in

the piovinees of Canada the rifjlit

uf rxcreisinj; supreme h'f^ishitive

powers, in whleli the British sove-

iviiin was to liave no share. Hut

till' ai-t of the Governor-Cieiieral

unit his Council in makin<; tlie ap-

|Kiintnii-nt is, within the meanin<;

lit' tilt' statute, the act of the Crown,

and a Lieutenant-(io\t'rnor, wiien

a|iiKpinte(l, is as much the fcpre-

M'titalive of llei- Majesty, for ail

|iuriK)scs of |trovincial j;ovei-nnient,

as tlu' Uo\ernor-{ieneral himself is

for nil pui'poses of Dominion <;o-

vcrnuicnt. Maritime Hank of

Canada r. Xew JJnmswii^k He-

(civir-General, .July 2ml, 1H'.»2,

[1H92] A.C. at p. 4i;{; ami helow,

17 & 20 S. C. H. ()57, G!)5. Sw

sec. 61.

■SVf \otes to sees. 90 ami SKi

hi a (|uestioii of precetleiiee of

•imnrs Coiinwd, held the provinces

wntd not fjive pi-eccdence over

Queen's Counsel already appointed

I'v the (iovernor-General. Lenoir

'•■ Ritchie, Nov. 4th, 1S71>, ^^ S, C.

R. 575.

hiAii.ticii.of Canada i-.Att -Gen

of Ontario [1H92],:U). A. H.O; 10
() \\. 17, it was aif^ned that a simi-
lar jdirase was used, <;ivin<j power of
le<;ishiti()n to the provincial con.sti-
tiitioiis, as when legishitive power
was piveii to the Dominion. \^Sec
.sec. 17.] 'J'hat the .same iihni.se being
used indicated the existence in the
case of the jirovinees of the .same
quality of legislative power, to lie
e.xerei.sed in the same way, and with
the same degree of latitude, as to
methods, means, and facilities for
carrying out such legi.shitive powers
as in the ca.se of the Dominion.
This fifth division is headed Pro-
vincial *' Constitutions.'" So "Con-
stitutions," the same phrase which
is used in the preamhle with rei'er-
ence to the Constitution of the
I'nited Kingdom, and to the Con-
stitution of the legislative auihority
of the Dominion of Canada. It is
not, therefore, the incorporation of
a company, or the charter of a
municipality, or any le.s.ser or other
thing, so far as this title shows, than
the Constitutionof a State. There
is the " Con.stitution of the United
Kingdom " ; there is the " Con-
stitution of Canada," and there is
the "Pro\incialCon.stitutioiis." The
name emhraees the ideas of .sove-
reignty and of political organization.
The Lientennnt-General i.s to lie
appointed by the " Governor-Geu-
eral in Council." It is, therefore,
the Governor-Geuerul of Canada, ao

Tenure of office
nf Lieutenant-
Governor.

28 B.N.A.ACT,s.59.— IJKMOVAL OF LIKIT.-COVKRNOR.

59. A Lioutonant-Govornor sliall hold office during
the pleasure of the Governor-General,^ hut any Li«Hi.
tenant-(iovernor appointed after the coinnienceinent of
the first session of the Parliament of Canada shall not
be renioveahle within five years from his appointment,
except for cause assig-ned, Avhich shall he communicated
to him in ^ritins' within one month after the order
for his removal is mad(% and shall he communicated hy
message to the Senate and to the House of Commons
Avithin one Aveek thereafter if the Parliament is then
sittiui^, and if not then Avithin one Aveek after the coni-
meneemeut of the next session of the Parliameut.

Lbtklmer
Cask.

tlic (.Queen's rt'pii'sciitjitivc, iictiiifj
for licr, iiiiil in Iut iiniiic, on
tile jidvic'c ol' tlii' (^nt'cn's Privy
C'onncil of Ciinsidti, iind nndcr the
Great Seal of Caiuida, wlio, liy tlu>
statute, is to ajtpoint to tlic otlice,
who thus liecomes the hentenant of
the representative of tlie (^neen, and
so may l)e said to lie an appiopriate
holder of such prei'oj^atixe power
as, in order to make tlie const itnt ion
effieient, shouKI he exercised by the
executive head of the pi'o\incc.
And sec. (il oi-dains him to take-
and snliserihe an oatli of allegiance
similar to that taken hy the
Goveriior-Goiieral. And hy sec. (tli,
the Lieutenant-Goveinor is carry-
ing on the government of a pro\ ince.

' See the case of Letelliei".

Leggo'.s Lord Dufferin, [>. Go."},
states: "The Hon. Luc Letcllier
tie St. Just, a member of the
Senate, and a .strong supporter of
Mackenzie's Government, was ap-
pointed Lieutenant - Go\ernor of
Quebec in 1H7(). The Legislative
Assembly, Legislative Council, and
the Ministry of that province were
theu in antagonism to the l)o-
nnnion Government. Mr. Letcllier
thus found himself without any
political sympathy either with the
ministers or the representatives of
the people, lu 187H he di»mibe>ed

his advisers, thou<^h the nuijority
of the Assembly was 20 in a Iiouh'
of (J5, and in the upper house; two
to one. 11 April, 1H7H, Sir Jolm
Macdonald brought the niattt-r he-
fore the Dominion I'arliament.
lie said that the Lieutenant -tioxcr-
nors of the different pro\ inces slodd
precisely in the same position willi
respect to the Governor-Generiii
and his Cabinet as th(; Governor-
General stands in respect to thi'
Queen and her Cabinet, and if
that he admitted tiien it must ln'
held the I'arliament of the Do-
minion of Canada has a super\ i.siuii
of the ..cts of the Lieutenant-
Governors Every Governor of
a colony in tiie J3ritish Empire was
liable to have his conduct discussed
in the liriti.sh I'arliament. Gover-
nor Eyre, 181 Hansard lOCit,
17G3, 'we his trial, 18GH, iuid
charge of Black burn, J . ; GoveiiKir
Darling's case, 191 Hansard 1!)0.3;
and the case of Mr. I'ope lleii-
ncsay. Governor of Mauritius. Eiul
Grey, on Representative Govern-
ments, said, p. 340: "But there
was this most important differencr
between a colonial Governor and an
English sovereign of the houses of
Plant«genet or Tudor, that llio
former was lesponsible to a distant
and generally impaitial authority,
to which the colonists could always
appeal to relieve them from a

B.N.A. ACT, s. 59— VIEWS OF LIErT.-GOVERNOR.

ffovt'vnor wlio nliuscd liis power.
Till' ("I'own could rooiill iiny};ovor-
nor wlio fiiilcd in the dischiirffi' of
his duties, and if it rofusod to do so
on ii \vfll-<jromide<l compiiiiiit from
tiip iidiahitiints of a colony, they
wciv ciititU'd to lay tlicir fjricv.iico
liciore ParlianuMit, to which the
ministers on whose ad\i(!e the
Crown iiad acted were hound to an-
swer for what had been done." Sir
Jolm arjined from these antiiori-
ti(K tli.it tile .same power that rested
in tile Imperial I'arliainent with
respect to colonial (io\crnors n[)-
[Kiinted by direct eoniniand of Her
.Miijesty e.\ists with respect to the
Dominion Parliament so far as
rcpinis liieutcnant-Goxcrnors ap-
pointed hy coniini.ssion of the
(.Jo\ernor-(ieneral. And he as-
sumed the Lieutenant-Governor
of each pro\ince lias the same
power, represents the Crown to
the siiine de<;rce, as the CTOvernor-
(ii'ucral rcpre.sents the Crown with
respect to the Dominion Parlia-
ment within the jurisdiction of
his own pro\ ince. Lejrfjo, G6H.

In lS7i) the Dominion (Jovern-
iiient applied to Her Majesty's
lioveriinient for an ex|)ression of
\iews with reference to the powers
itiveii under the B. N. A. Act, with
iclVienc'' to the dismissal hy the
(iovernor-lrencral of a Lieiitenant-
(iovcviKir. 'I'he Quebec Ministry
ilfsired the (piestion to be rei'erred
to the Judicial Coimnittee of the
I'rivy Couiicii, Imt the Secretary
III State was of opinion the case
wiis iniidiiiroiis to that of the New
Ihiniswiej; School Act, u|)on wiiich
ill 1S72 the Canadian House of
Conmiuns soujrht to obtain the
opinion ot the .Judicial Conimittcc.
{Sir sec. [)',].) He thcrel'ore con-
-iil'Tid tlml Her Majesty could not
wiih propriety be ad\ i.sed to inter-
lii' . Hilt that case did come lie-
tore tile I'rivy Council in IMaher
1 c. Town of Portland, 1874. See
now tiie Supreme Court Aniend-
iii'iit Act, 54 & 55 V^ct. (Doni.)
U 'lb. s, 4, ijivinp; power to spe-
1 daily refer such questions to

the Supreme Court, which may
come to Her Majesty in Coun-
cil. In tt despatch 3 July, 1879,
tht Secretary of State conveyed
the following conclusions of Her
Majesty's (rovei-nment : " There
can be no doubt that a Lieutenant-
(}o\crnor of a province has an un-
(picstionablec. institutional right to
(lismiss his ministers if, from any
cau.se, he feels it incumbent upon
him to do so. In the exerci.se of
this right, as of any other of his
functions, ho ought, of course, to
maintain the impartiality towards
rival political parlies which is
essential to the proper perform-
ance of tile duties of his otiice ;
and for any action he may take he is
(under the r)9th sec.) directly res-
ponsible to the tJ-o\t'rnor-(Tcneral."
" In th'ciding whether the conihu't
of a Lieutenant- (io\ernor merits re-
moval from otiice, the (lovernor-
(leiieral — as in the exen'i^e of
other powers vested in him liy the
Imperial statute — must act by and
with the advice of his ministers."
That the opinion of a (Jovernor-
(}eneral was entitled to peculiar
weight (from his position), "yet
Her Majesty's Government do not
find anything in the circumstances
which would justify him from de-
parting in this instance from the
general rule and declining to follow
the decided and sustained o|)inion
of his ministei's, who are respon-
sible for the peace and good
government of the Dominion to
the Parliament." " The cause
assigned for the removal of
a Lieutcnant-tiovernor must Ik;
communicated." Ihit he asked
that the Canadian ministers should
review their decision, to "consider
whether it were necessary lor the
advantage of good goM'rnment or
contentment of the province that
so .serious a step sluaild be taken as
the icmoval of a Lieutenant-Gover-
nor from ofHee." " The spirit and
intention of the Act being that the
tenure of the office of Lieutenant-
Governor should endure, as a rule,
for the term of years speciticully

LSTELLIEn

Casr.

I J,!

30 B.N. A. ACT, s. GO.— rSEFriiXESS OF LlKrT.-GOV.

Lf.trli.irr

C.KSK.

!i^ <

Siiliirics of

liifuti'miiit-

tiovfvnor.s.

Outlis, &o. of

Liniti'imnt-

Uovcriior.

ApplieiitioD of
provisioiLs rc-
forring to
I.it'Utcimnt-
(joviTimr.

Appointment
of L'Xi'cutive
officofN for
Ontario nml
Quebvc.

mentioned J and tliat, not only,
slioidd tin- powof of rt'inovid noNcr
Im" oxor('i,><('(l except for {^rave causes,
but tliat llic fact lliat the [lolitical
opinions of a Ijieiilenant-dovcrnor
had not lieen (hn'in<; his former
career in accordance with tliose
hehl by any Dominion ministiy
wlio mi<;iit lia,/pen to succeed tt)
])ower (luriiifi; his term of office
wouhl afford no reason for its
exerci.se."

The Dominion Ministry retained
tlieir ori><;inial opinion, and l>y
Onh-r in Coinieii, 25 July 1H7!», it
was rcsolxed tiiat it was expedient
Ml'. Ijcteilier siioidd lie removed,
tile cau.se assijjiied lieiiif; lliat after
tile Notes of tlie I (oust! of Com-
mons diiriii}^ tlie last session, and
tliat of till' Senate diirinjf the
prt'.sent, his usefulness as a liieii-
tenant-(io\('riiorwas<joiie. IJ Todd's
Uri. (V)l. [IHSOed.], jip. ♦O:), 41 1.

Lord Diitfciiii laid down tliis
principle at Halifax, Aiif^iist 187.'{ :
'' My only •riiidin^ star in tiie coii-
<luct and niaiiiteiiaiie(> of my ollieial
relations with your pulilie men is
the ]'arlinniciit of Canada. ! be-

lieve in Parliament, no matter
which way it votes ; and to those
men alone wlinni the deliberiile
will of tlu! Confederate Parliament
of Ciinada may assifjii to nie as my
responsible advi.sers, can I give mv
Cdiilideiice. Whether they aio
heads of this party, or of that parly,
must be a matter of iiidifrerenee in
the (Jovernor-tieiieral ; so loiii; as
they are niaiiit4iiiie<l he is boiiint
to <;ive them his nnn.ser\ed coii-
lideiice, to defer to their advice,
and to loyally assist them with his
councils. As a rea.sonable beiiij;
he caniiol liel|) ha\ ing convictions
on the merits of dilTereiit policies,
but these considerations are ab-
stract and speculative and devoid of
practical elTect in his ollieial ic-
lations. As the head of a con-
stitutional st4ite, eiifiafjed in tln'
administration of ParliamenliMy
<;<)\('riiuieiit, the (jovernor-Gcnenil
has no political friends, — still less
can he have political enemies.
The possession, or, iieiiig suspectiil
of such po.s.sessioii, would dcslidv
his nsefuliiess." Lejiijo's Lonl
DiilTcrin, (;()2.

60. Tlie salaries of the Li(uitoiiaiit-(iovernors shall
1)0 ti.xed and proAidcd by the Parliaiiioiit of Canada.

61. Every Lieiitonant-Governor shall, before assum-
ing the duties of his office, make and subscribe before
the (liovc'rnor-General or some person aiithori/ed by liini
oaths of allegiance aiul office similar to those taken by
the Governor-Gcncml.'

62. The provisions of this Act referring to the
Lieutenant-Governor extend and apply to the Lieu-
tenant-Governor for the tinn; bcMUg of each province,
or other the chief executive officer or administrator
for the time being carrying on the government of the
province, by whatever title he is designated.

63. The Executive Council of Ontario and oi Quebec
shall be composed of such persons as the Lieutenant-

' See Note, sec. 58.

B.N.A. ACT, s. (54.— THE (KOWN AS Cl^EDITOK. 31

Govornor from time to time tliinks fit, and in the first
install CO of tlie following officers, namely, — the
Attoriicy-Cleneral, the Secretary and Registrar of the
province, the; Treasurer of the province, the Commis-
sioner of Crown Lands, and the Commissioner of Agri-
culture and Piihlic Works, with in Quebec the Speaker
of the Lei^islative Council and the Solicitor-Ceneral.
64. The constitution of the executive authority in K''«''"t'^''

** _ • (KivfriimiMit of

(<acli of the provinces of Novo Scotia and Now NovaSiotia
Bi'inisirick shall, subject to the provisions of this i{nii'>wi,k.
Act, continue as it exists at the Union, until altered
under the authority of this Act.'

1 Till' Dominion and provinces

liiivr ('o-i>r(linat(> aiitliority within

tlii'ir ii'siH'ctivcsplicrcs, liotli Itcinf^

Milijt'cl Idtiic Impel iiil Parliament.

'I'lii' (|U('sti(>n in Maritime Hani^ of

('aMiidii /•. New hrunswiek Ke-

(rivcr (icneral, Julv 2, [18!)2]

A. ('. 1:57; (il L. .i. P. C. 7o ;

()7 L. T. 12(i ; reported lielow

17 iV 2(1 S. C. U. ()57, (I!).").

wiictiici' the Provineial (lov-

ciiiiafiit were eutith'd to pavmeiit

III lull over the oilier depositors

and >iiiiple eoiitraet ei'editors of the

liiiiik. When the hank slo|)pe(l pay-

iiiciil, 1S!^7, the I'rovineiid Goverii-

iiii'iit was a simple eoiilraet ereditor

lor S.'io.lMK), heiiijr piihlie money ol"

llic IHovilice deposited in the name

of till' l!irciver-({eiierid. Tiie l{c-

cfivi'i-lieiieral claimed payment in

lull as icpn'senting Jler Miijesty.

'I'lic Jiidieinl (."omniitleo (tltroiij;ii

hold Watson) held that the effect of

the Doiniiiion Ai-t was not to sever

all coiiiiection l)etwe«'n the Crown

iiiiil the piovineos. 'J'he Act of

lHti7 nowhere professes "to curtail

ill anv respect the ri<;hts and privi-

Ifjics of the Crown, or to disturl>

ibc lelatioiis then siiiisistino; hc-

iwoi'ii tile so\erei<;ii and the pro-

\im.rs. Tile oliject of the Act was

iii-itlier to weld the provinces into

line, nor to suhordinate i)roviiiciul

},'ovpriiiiiciits to a central authority,

liiit to create u federal government

m which they sbouhl all he repre-

sented, enlrnsted with the exclusive Maiotimf.

administiaiion of affairs in which I>^^k "'

v e. Xkav

they had a common interest, each
province retaining its independence
and autonomy." '• The prerogative
of the C^ueeii, when it has not heen
expressly limited hy local law or
statute, is as extensive in Her
Majesty's Colonial possessions as
in (ilrcat Hritain. And the Crown
as a simple contract crediloi' for
puhlic moneys of the province de-
posited with the hank was entitled
to priority o\er other creditors of
cipial degree."

'J'liis decision allirmed Heg v.
Hank of Nova Scotia [11 S. C.
K. IJ.

In K.xciiANdK U.vNK (U' Canada
r. TiiK QiKKX [from (^). H.
Qnehcc] Fel.riiary IS, issti, U
App. 157; 00 L. .1. P. Co, 54
L. T. H()2; and Ih'Iow, 1 Mon.
li. H. ;i02, the result was diffe-
rent, hccaii.se in the province of
Quebec the prerogative of the
Crown is limited liy the two Codes
(the Civil Protediirt; Code and the
Civil Code) to the case of the com-
mon deiilor lieing an officer liahle
to account to tln^ Crown for puhlic
moneys collected oi' held \>\ him.
And therefore, in that case, the
Privy Council reversed the judg-
ment of the Court below, and
negatived the preference claimed by
the Dominion Cio\ernment. Sie
sub-sec. 13, sec. 92, tor full report.

JtlUNSWUK
JU'.C. (iF.NKIIAl..

Kxi II VNOK

1!ank or
Canada c.

Tin: (ill'.KN.

mmm

t-'tr'ii'mtfHf'fi

Poweru lo bo

ex«rci8('il liy
Liutitciimit-
Ouvonior of
Oiitiii'io or
(JulIji'C witli
mlvice or
alone.

Att.Oen.

OK Ql-F.IIKC

V. Rred.

UNA. ACT, s. f.o— PREROGATIVE OF THE CROWN

65. All i)o\V(M's, autlioritios, and I'linctions wliioli,
under any Act of the rai-lianicnt of (Irpnf lirifoin, or
ol' the Parliament of Hit* U/ii/ctf /\iii(/<fotn of Grrol
Br'iltdn and Irc/aml, or of llie liCi^islalurc of Upper
C<niail((, Loii'cr Caudda or Cinidda, were or arc, Ix'loic
or at the Union, vested in or evercisi'alile 1)V tlie re-
spective Governors or Lieutenant -(lovernors of those
{)rovinces, with the advice, or with the advice and
cons(Mit, of the respective Kxecutive Councils tliereof,
or in colli unction with those Councils or witli aiiv
number of members thereof, or by those Ciovernors
or Lieuh'nant-Governors individually, sliall, as far as
the same arc capabh' of beiiii^ exercised after the Union
in ndation to tlie i^overnment of Ontario and Quebec
respectively, be vested in and shall or may ho exercisinl
by the Lieutenant-Govenun' of Ontario and Qaebec
res|M>ctivt ly with the advice, or with the advice and
consent of, or in conjunction with, the resjiective
Executive Councils or anv members thereof, or by
the Lieutenant-Govi'rnor individuallv, as the case
requires, subject, neverthekss (except with respect
to such as exist under Acts of the ParHament of
( I root Britain, or of th'' Parliament of the United
Kingdom of Great Britain and Ireland), to be abolished
or altered by the respective Legislatures of Ontario and
Quet)ec.

' Sec spc's. II, G5.

The Doiiiiiiioii Aft iliil not liiko
awiiy the |)r('ro;^ntivf ul' the Crown
in any of tlie in'ovinccs. ^Iiiiitinic
Wank of Canailii r. New Hnniswiek
Receiver-General, Jiiiv 2, [1S!)2]
A. C. 437; (Jl L. J. P. C. 75; 07
L. T. 120; anil below 17 & 20 S.
C. R. 057,0{)5. But in tlie proviiico
of Qiiebee the prerogative of tiie
Crown to ineferahle puynient out
of common debtors' estate is limi-
ted bv the olil French law in that
province to thecnse of the common
debtor bein<f an oflieer liable to
uecount for public money. Ex-
chunge Bank of Canada v. Reg.,

Feb. 18, IHHO. 11 App. Gas. 157;
an<l below, 1 Mon. L. 11. 302.
See sub-sec. ll{, .sec. !)2.

In Att.-(ik.\. Ol' QuKiJKc- c.
Rkki), November 20, 18N4, 10
App.Cas. 141; 04 L. J. P. C. 12;
52 L. T. .31)3; 33 W. R. OIH; lip
low H S. C. R. 4()H, an Act of the
Provincial Legislature of Qutliec,
43 & 41 Vict. c. 9., imposed a ta.x
of lU cents on every exhibit pro-
duced in court in any action depiiiil-
ing therein. The Supreme Com t,re-
versing the Court of Queen's Bciicii,
Quebec, lield the Act in\iiiiii.
Earl Sel borne, L.C, after suyiiig
the Act was not valid under siili-

B.N.A. ACT, H. Co—THK t^lTRKN'S PRKROGATIVE. 33

w. 2, se<'. 02, sftid (10 App. C'lis.
|, II.')): " Till' (j.ltli scirtion pre-
serve^ lilt' pi't'-t'xistin;; powers of
llii. (i(i\eriior.s or liieiiteimiit-
(iovcrnor.s in Coniieil (o do eer-
tiiiii tliin<;s not tlieie speeitied.
Hull, lici\ve\er, WHS snlijeel to
a |H)\vi'i' III' iil)i>|iiioii or iilteration
liv tlie lt'>|)eeli\(' le<;islatnres of
(ilitiirio mill (^ilel)ee, with the ex-
(•(•pliitli, iif eoiirse, of wliiit (le[H'n-
(IciliHi liiiperiiil leirislalioii. \\ hnl-
I'M'i' ji'ivvei's of that kind existed,
till' Act with which their Lordships
iiiiM'tii deal neither aholislies nor
iilici's tlieiii. it does not refer to
tiii'iii in any manner whatever. It
i^ s.iiil that, anionjjst those powers
, ihcif was a power, not taken away,
t(i liiy ta\is ol this \ery kind npon
liiriij |pr(ieeediiii^s in the Conrts,
iiot for the {{enei'ai revenne piir-
piises (il the jiroN iiiee, lint for liie
|iiii'|ii>'-i' iif loriniiji; a special fund,
(ullril 'The |{iiil<lin;r ami Jnry
IFiiihI.' which was appropriated for
j|)iii|iii»r> ciinnected with the ad-
liiiliiisti'iition of jnsliee. What has
|1m'('I1 done liere in quite u ditt'erent
ftliiiif;. 1 1 is not hy the authority of
(till' Liciiicnant-Oovei-nor in ("onn-
1 I It is mil in aid of the ]inildin<;
iiii'l .liny I'liiid. It is a lej^isla-
l.i act without any reference
iwliMiivcr ti) those powers, if they
ktill exist, ipuie eoUateral to them ;
IriiiI it' tlie\ still exist, and if it still
gliil I'xi-tN itself, c;i|)alile of lieinjj
xiicImiI concurrently with thein;
Lixlortliep-neral pnrpusesof the
nniiire, and in aid of the ;reneral
vi'iiiic, iliese Icf^al pnu'ccdini^s.
t ai)|Kiirs to their Lordships that
iili^^ i( can he jnstitied under
r. 1)2 of the H. M A. Act, 1HU7,
it riiiiiiol he justilied under the
"olli." [For lirst part of this
iiiljliiii'iit sec suh.-sec. 1-1, see. !)2.J
t IS III he presumed that the L»!-
iiturc iliHis not intend to deprive
ifl'iowii of any prerogutivt! uidess
I'xprtsses its intention to do .so
ixplicif terms, or nmkes the
fi'iciice invsistilile. Wilson r.
Itrkley, l>low, 223 ; Hex r. Cook,
T. K. 519; Att.-Gen. c. New-

8 2340.

iniin, 1 Frioe 1,3H ; Att.-Oen. i*. Arr.-Qm. or
Mertiimd, L. U. i P. (!. 520; Quebec v.
Hej:. r. David.son, Ul V. V. (j. U. '*"'°'
11 i Ue},'. r. Anars, 12 U.C. t^. B.
'Aitl. Seetion 1 of (^iiehce Act,
IHHU, e. S)H., declared that "The
Fiieuleiiant-tiovernor, or person ad-
ininisleriiifj the ^;o\ernment of the
province, was a eiu-poratinn sole."
The Minislei-of .Instiee, 22 March
1HH7, reported this .section is tuKen
from the Con. Sta. Canada c. 10.
s. 1, which may possilily be untler
sec. (m of the" H. N. A. Act in
force in (JucImc in respect of the
ollice of Lieutenant - Uoveruor.
The provision is clearly one that
relates to the ollice of Lienteinint-
tiovernor, and as such is with-
drawn from the lefi;islative author-
ity of the Le}j;islature of (^uehec liy
the {)2nd section. In .Janmiry
lHiS7, an Act passed by the pro-
vince! of Manitol a respectinj; the
(!o\ernor-(ieneral and hisdejiuties
was disallowiMl on tlui groiiml that
it was not within the legislative
authority of the Manitoba Legis-
lature. AVrProv. Leg. 1887, p. 25.

Ill IlEii. r. TiiK Amkhs, Feb. Reo. u. The
2;{, 1878, 12 V. C. Q. U. 3i>l, '^*"'"^-
where minierous cases are cited
on the [iierogative of the Crown,
Harrison, CI., said: "The pre-
rogative as to the issue of special
commissions of Oyer and Terminer
anddeneral liaol Delivery exists iu
all its integrity in the ca.se of what
aie now known as the unorgani.sed
tracks m- provisional judicial dis-
tricts. The exercise of the |)ower
by the tiovcrnor-tjieneral of the
iJominion, or by the Lieutenant-
(Jovernor of the provinces, is not in-
consistent either witli suli-see. 27,
.sec. 91, or sub-sec. 11 of .sec. 92 of
the H. N. A. Act. 1 he lirst em-
powers the Legislati.re of the Do-
minion to imike law.-* in relation to
the criminal law, except the con-
stitution of the courts of criminal
jurisdiction, but iiu'ludiii{; the pro-
cedure in crimii;al matters. The
second empowers the Legislature
of the province to uuko lawa iu

B.N.A. ACT, s. 06— DEPUTY GOVTiRNOR.

Rdo. v. Tub relation to thu udiiiiiiistrutiun ul'

'^•'■**- justict' ill thu pidx iiici's, iiicliulinj^

tli(> i-uiiHtitiitioii, inaiiitt>iiiiti<'<>, ami
(ii'^niiisiitiuii of |)r(j\ iiirial cuiirts,
liolli (if civil and criminal jiiiiMlic-
linn, and iiiclndin<; iH'oi-rdnrc in
civil matters in llicsc i-onrts. iint
nt'itlu'i' Ijcffislalnrc has as yet ut-
tcmptt'd to intrrlt'iv with the |>n!-
i'(><;ati\c as tu special commissions
in the cas4' ol' the nnoi'pinised
Ir.utis of eonntry or provisional
jndicial districts, and when eithei'
Legislatnrt! shall attempt to do so
it will hi' tinu' enonj^h to decide
which, under the IJ. N. A. Acl,iias
the power to do so. There still of
remains tht (pjeslion as to where,
since confedeiatinn, the preroj^ative
power exists. [His Loi'dship read
sec. 5) of the B. N. A. Act.] The
power, hciiif^a prert)<;alive one, can
only he exercised by tlu' (^ueen
or her representatives. The Go-
vernor-(J enend of Canachi is the
only executive ollicer provided for
liy the Act who answers this de-
scription. The Act, however, hy
sec. 14, makes it lawful for the
Queen, if she sees tit, to auth(H'i7.(!
the Governor-(ien»'ral from time
to time to appoint any pcM'sou or
persons, jointly or severally, to he
licr de|>ufv or deputies within anv

•|>
part or pa
that capacity to exerei.se duriu": the I'rivv C'oinicil cannot

'I
ts of C'anndii, ami in

nor-General of Canada, and us llaii
is no statement to the contrary in
the case, [ must assiune that llic
(jueen has autliori/ed the appoint-
ment of a l)e|iuty Governor, luuj
that the prcro<riiti\c power in
question was conferred Ity llif
(iovernor-tieneral on the l)e|iiitv
(lovernor without any limitalinii
or direction on the part of tiir
(jueeii, and so that it has liecn
exercised liv the |)ro|>er autlioritv "
And his liordsliip held that tin'
Crown by prero<;ative ri};ht could
issue a commi.ssion to a jiiil<;i'
of the provisional judicial district
of .VI<;onia to hold a court of
Oyer and Terminer and (ierunil
Gaol Delivery for trial of felonies
It is said the CaiUMliau Act, .')!
Vict. c. t.S.s. "} — " Xotwithstandih;'
any prero<^afive, or anythin<; con-
tained in 'The Interpretation Ail'
or in ' The Supreme and Kx-
che(pier Coints Act,' no ajUKal
shall h(^ brou<;ht in any eriminiil
case from any judf;ment or ordir
of any court in Canada to anv
coiut of ap|)eal or authority, 1»
which iu the United Kin<;doin )i|i-
peals or petitions to Her Majcslv |
in Council may be heard," — iIih>
away with any appeal to the I'livi
Council in criminal cases, luit ii |
does iu)t seem quite correct to siv

ipac

the pleasure of the (Jovernor-
(ienerid such of the |)owers, author-
ities, and functions of the Gover-
nor-(ieneral as the Governor-
General deems it necessarv or

expedient to assign to him <
them, sid>jeet to any limitations
or directions expresslv j;iven by the

H> connmsMon issuei

Queen

by the Dominion (lovernment is
tested in the name of the Hon. W.
J}. Richards, Deputy of the Gover-

hear an appeal from a coin ictidn |
in Canada for iniirder. Can tinv
Act but an Imperial Act take nvvjy
the prero<i;ative of the Ci'owu lo I
send a case to Her Majesty's I'rivv
Council for advice ? The preiopi-
tive of the Queen cannot be tiiktn I
away without express worils; iinJ
if it is a prerogativ e to Im- exeicisil
in En<;land the limitatitm oii^lil I
lo Ih' expressed in an Act of tlw
British Parliament.

Application of
provisions
referring to
Licutt'nant-
Governor in
Council.

66. The provisions of this Act vct'erring to the I
Lieuteiiaut-Goveriior in Council shall he construed as
referring to the Lieutenant-Governor of the province
acting hy and with the advice of the Executive Council |
thereof.

B.N.A. ACT, M. 6H.— PROV. LEOTSLATTVE POWER. 36
57. Tlio Oovrnior-ficiKM'al in Council mav, from AdminiiitrRtioii

, .. .. ii'-ii X '.-1 in HbN«nce,&c.

tunc to time, appoint an Adiniiustrator to oxocute tho of Lieutinunt-
odioc iiiul rmicti«)ns of Ll(Mit('nant-f}ov('rnov during '"^o"""-
his absence, illness, or other inability.

68. Unless and until the Executive ftovernmont Si-nts of pro-

, • 1 • i . 1 1 vincial Govcrii-

of any provuice otherwise directs with respect to that monts
province, th(^ seats of government of the provinces

j shall 1)(^ as follows, nanndy, — of Ontario, the city of
Toivufo ; of Quefjfic, the city of Qnebro ; of Nooa

|,SW/rt, the city of Ilalifit.r ; and of New Brunswick,

I the city of Fredericton.

Legislative Power.
1. — Ontario.

69. There shall be a Legislatun; for Ontario con- Legislature for
Isisting of the Lieute:iant-Governor and of one Houso

Btylt'd th(^ Legislative Assembly of Ontario.

70. The Legislative Assembly of Ontario shall be Electoral dis-

tricts.

composed of eighty-two members to be elected to
represent tho eighty-two electoral districts set forth in
Ithe First Schedule to this Act.

2. — Quebec.

7L There shall be a Legislature for Quebec consisting LegiHiature for
bf the Licnitenant-Uovernor and of two Houses, styled
L('l?islati^•e Council of Quebec and the Legislative
Lsseinl)ly of Quebec.^

' In coiisidcrinj; tlic IGtIi section
: tlic (Jiu-l.cc Act, 4i) Vict.c. .34.,

which the Batomiicr of the
nvincc is <;ivcii pr(!ci'(lciico over
llwr nicmlicrs of the provincial
II', the Minister of .lu.stice siiid :
IiiLciinir v. Hitchie,3 S.C. R. 575,
fnry, Tiisclicretiu, and (Iwynne,
' I n nmjoi'ity of the Court lield
•t a provincial le<;;islature has

power to autliorize the Lieu-
buiit-Govcrnor to appoint Queen's
punscl, or to grant to any mem-

' of the Bar a patent of prece-
pw'iiitlu' eo\nts of the province,

as the prerogative of raising jjrncti- Lenoir v.
tioners in tlie coin'ls of justice to i<iTcniE.
a superior eminence hy constituting
them seijeants, or by granting
tliem letters of precedence to such
barristers as Her Majesty thouglit
l)roper to honour with tliat mark
of distinction, belonged to C^anada,
to the Governor-(}eneral as repre-
senting tiie frown, and not to
Lieutenant-Governors. The Court
took notice of a despatch of Lord
Kind)erley in 1872, wherein his
Lordship statetl that he was ad-
vi'wd that the legislature of a

c 2

Constitution of

Legislative

Council.

" II i

30 H.^A. ACT, s. 72.— SUMMONIXG FOU COXTEMPT.

72. The Legislative Council of Quebec shall he com-
|)ose(l of twenty-four menihei-s, to he appointed hy tho
Liciitenant-Govenior, in the Queen's name, 1,y instni-
men< undev the j^reat seal of Quebec, oik; hcnng ap-
pointed to represent each of the twenty-four electoral
divisions of Lower QuKdhi in this Act referred to, and
each holdiiii; olIic(; for the term of his hfe. unless the
'jefifislatun; of Quebec otaerwise ))r()vides under the
provisions of this Act.'

provinpo could confer by stiitntc
on its liiciitcnunl-dovi'iMor tlic
power ol' ii|>pointin<r Queen's
(.'o'.insel." [n a fcport dated
2'2 Mareli 1HS7, the Minister of
Justice said: ".Since 1h7!( fienoir
I. Kitcliie has (ontiniied as an
autlioritaiive enniniation of the
law on the siihject, ami it is clear
for the above reasons that a lej^is-
lature cannot in this respect exer-
cise dli-ectly a pcwer which i(
cannot enable the Tjieiiienant-
(lovcrnor to cxei'ci>c," Jle there-
fore reconnncinlei', 'J2 March 1HH7;
that the lOth section of the (Quebec
Act, 1!) Vict. c. .'{I., be auiended
so as to shew clearly that the
IjCj^islature intendid the eiiai Inient
to be " subject to the exercise by
tilt (iovernor-dcneral of the Koyal
|)reroj;alivc." I'rovini'ial Iji'uis-
latioh, 1HS^<. pj). lio-.'iti. Ibil on a
reconsideration, )(> Jidy 1SH7. the
Minister of Justice | TiiouipsouJ
ullo\';'d the Act to bc.oinc opera-
tive, tho.;e members of ihc llai nho
I'll a^jjjrii veil to seek their remedy
at law. ['<(■(' Note. pp. 7, 11.]

' Svf sec. II. In c.r juirlv
('. A. Dansrreau, 17 Feb. 1H7.'),
11) L. ('. J. 210, it was hchl
(1) that the Li j^islative As.senibly
of the proviiicc of Quebec has
power to co'upel the attendance of
witnesses b -for ■ ii, ;\!id nui\ order
a witness t(i Im taki 'i into <'Uslody
by tl<e Serjiant-at-A nis il he re-
I'lisc.M to atiend when sinumoneil,
and (2) that the omission to Htate
in the S{K'aker's wBiiaiit of arrest

the pounds and reasons therefor
is not a f'ltal defect.

In that ea.se it was adiniili'ij
tliat the provincial letrislatniv
claimed <iU the powei's and piivi.
Ie<;es pos.si'sscd by the House ol
Commons. lint if that point \vii>
abandoricd that they could slill
commit for contempt, Sanborn, .1 ,
in that ca.se said (p. 23H) : " Wliiii.
(ver |>owers and innnunities nt-
laclied to the Iie;;islative Asscm.
biy of tla' late province' of Lower
Canada and the !jef^islati\e Asscm.
Illy of the late province of CaimiLi
a.s were necessarily incident to ilir
proi)ei' exercise of thcii" fuiiciion-
as le<;islative bodies, attach to til''
liC ;;islative Asvcnibly of the piv-
sent prov ince of Quclwc. 'I'liv
.Senate of the Dominion or tin-
Legislative Council of thepr<)\iiii>
cannot claim the judicial powcix.:
the liiiuseof liords, and yet tlni.
aie uiany judicial powers In l>
cxcrciseil in cuiiiie<'lion with li;'.i-
tion, the depository of which tiiiM
be .sona'where. Fo: example, jiri-
diction o\cr divorce is j;iven In il«
Feileral Parliament. It lao Imvii
thought necessary to assume jMiwir ,
to examine witr <seM upon oalii [>« i
Imp. 31 & ;{.■) Vicl. c. K\.\ iUiJ
determine the matter jud'iiiiil).
thou;;li neither House h:id j,'iiiil'r
powers than the ( 'ommoii^ lhiii><
of ;hc I'niled Kin;r<lom li '"•
came a iicccti:<ary incident I" llif
pov -rs conferred. 'The Lcgi'l^i-
.'ive Asfk'HdjIy of our piovimr in'l
not the mere nude jwwer of legfr

0.1 to
c.

B.N.A. ACT, 8. 73.-QUALIFICATION QUESTIONS. 37

73. The qualifications of the Legislative Councillors Le^^y^Tl"" °'
of Quebec shall be the same as those of the Senators for c«unciiior».
Quebec.

74. The place of a Lei'islativo Councillor of Quebec R.«^'Rn«tion.

' , ^ (nHqualinca-

sliall hocome vacant in the ciises, mutatis mutandis, tion, &c.
in which the place of Senator becomes vacant.

75. When a vacancy happens in the Leijislative Vacancies.
Council of Quebec by resij^nation, death, or otherwise,

the l'''"itenant-Governor, in the Queen's name, by
instrument under the great seal of Quebec, shall ap-
point a fit and qualified person to fill the vacancy.

76. If ttuv question arises respc^cting the, qualificji- Questions a»
tion ot a Legislative Councillor of Quebec, or a vacjmcy
in the Legislative Council of Quebec, the same shall be
hear<l and deteimined by the Legislative Council.

77. The Lieutenant-Governor may from time to time, speaker of

... lit 1 ii>yi • lit gif-lativa

l)v instrument under the gnuit seal oi Quebec, appoint coimcii.
a member of the Legislative Council of Quebec to be
Speaker thereof, and may remove him and appoint
another in his stead.

78. Until the Legislaturt; of Quebec otb«'r\vise i)ro- 1^ ""■"»" "'

, , Lc gi-lativo

vides, the presence ol at l(>ast ten meml)ers ol the council.
Le<j;islative Council, including the Sjieaker, shall be
necessary to constitute a meeting lor the exercise of
its |)()\tfers.

79. QiUMtions arising in the Legislati\ (^ouiicil e* '■' '. l^Jl[.^
Qiii'bi'r shall be d"cided by c. majority <>i voices, and < "imcii.
the Speaker sha'l in all ca.ses have a vote, and when

lalioii. It liiis l)y implicati;)ii, liy

iiNipc, Mild h\ II I'oiistitiitioti

iuo(ii4ic,l upon the KiihIImIi II(iii>-<'

I ul Cuinnioiis, aJKo an iii(|iiisiti)i'iai

I power to nmUi' it.sclt' ac(|uaiiitei!

i tn iiicims ol' I'onituittt ON of tin-

I nwls of iheprovinctMind tin- cvIIh

ihiit I'xi.'it in fUK'ii'lv ov«'r wliirli it

fill" loiitrol, in ordoi to l»>ji;islatr

I mldli^'piiU^ and ndmininter wiwiy.

Till' appointiiHiit of < oiniiiitttH's of
iiKpiiry lor purposes of lliis natun>
is iiu'iilriit to till' cxistciuT and
pi()|M'i" woikiiifi; of t\( iv ligi~lali\t'
i»od_v. It is a.s.sofiiit<'<l with id!
our ideas of i"}j;is'.iti<in iiiiiler tli(>
Hiitisli pysteiu, i>nd lias lieeu exer-
cised without (]iiestion in all our
Purlianieutftrx liiHtory as a pro-
viuce."

1 1 i1

1 1

III

•

■

Constitution
of LcgislHtiTc
Asfiembly (if
Quoboc,

First session of
Legiglature8.

Summoning of

Legislittiru

Assemblies.

Restriction on
elootiop of
hnldcpH of
offices.

B.N.A. ACT, s. 80.— iHE LEGISLATURES.

the voices ar(^ equal the decision shall be deemed to
be in the negative.

80. The Legislative Assembly of Quebec shall be
C()mpos(>(l of sixty- live members, to be elected to repro-
sent the .sixty-five electcn'al divi.sions or district^ of
Lower Canada in this Act referred to, subject to
altemtion thenM)f by the Legislature of Quohec : Pro.
vided that it shall not be lawful to i)resent to tlic
Lieutenant-Ciovernor of Qttrhfo for assent any Bill for
altering the limits of any of tin* (electoral divisions or
districts mentioned in the Second Schedule to this Act,
unless the second and third readings of such Hill
have been passed in the liCgislative A.ssembly with the
concurrence of the majority of the members repre-
senting all those electoral divisiojis or districts, and
the assent shall not be given to such liill unless an
address has been presented bv the Legislative Assemhlv
to the Lieutenant-Governor stating that it has been
so passed.

3. — Ontario and Quebec.

81. The Legislatures of Ontario and Quebec respec-
tively shall be ttillcd together not hiter than six months
after the Union.

82. The Licnitenant-Governor of Ontario and of
Quebec shall from time to time, in the Queen's na'.nc,
by instrument under the great seal of the province,
summon and call together the Legislativt; A8send)ly
of the province.

83. Until the Legislature of Ontario or of Queltec
otherwis(« providers, a persor. accepting or noMing in
Ontario or in Quebec any oHic«', commission, or cm-
pIoym-Mit, permanent or temporary, at the nomination
of the Lieutenant-Governor, to which an animal salary,
or any lee, allowance, emolument, or jirolit of any
kind or amount whatever from the province is at-
tached, shall not be eligible as a member of the Legis-
lative Assembly of the respective^ province, nor shall
he sit or vote as .such ; but iiMlhing in this section

B.N,A. ACT, w. 84— RE-ELECTION.

shall make ineligible any person being a member of
he Executive Council of the resjx'ctive province, or
hol(linf5 any of the following ofhces tliat is to say, the
ollicos of .Vttorney-Goneral, Seeretiiry antl Eeyistrar of
the province, Treasurer of the province, Commissione'-
of Crown Lands, and Conunis.sioner of Agriculture and
Pul)lie Works, and in Quebec Solicitor-General, or shall
disqualify liini to sit or vote in the House for M'liich he is
elected, provided he is elected while holding such ofhce.

84. Until the Legislatures of Ontario and Quebec Continuance of
respectively otherwise provide, all laws, which at the Uon laws,
'nil are in force in those ])rovinces respectively,
ivtative to the following matters or any of them,
imiuely, — the qualilieations and discjualifications of per-
sons to he <'leoi(>d (U' to sit ov vote as members of the
Assembly of Ctniada, the qualifications or disqualifica-
tions ' '■ voters, the oaths to be taken ])y voters, the
ivturniu;. ^,flic(*rs, their powers and duties, the pro-
ceed ii 4s a: elections, the periods during which such
elections is. ly be continued, and the trial of contro-
verted elections and the })roceedii.gs incident theretc,
the vacating of the seats of nunubers, and the issuing
and I'xecution of lu'w writs in case of seats vacated
otherwise than by dissolution — shall respectively apply
to elections of members to serve in the respective
Legislative Assemblies of Ontario and Qnebec :^

Provided that, until the Legislature of Ontario other-
wise ])rovi(les, at any election for a member cf the
Legislative Asscmblv of Ontario for the district of
AUjoiiHi, in ydJitioJi to persons qualified by the law of
the province of Canada to vote, every male British
suhject, aged tw(Mity-one years or upwards, being a
householder, shall have a vote.

85. Every Ledslative Assembly of Ontario nmX every puntionof
Lcuislative Assembly of Quel)ec shall contmue for tour A«sembiie8.

' In 'I'liKBRitoE c. Lanpky,
^111'. ('. (i., 20 Mitv IS7«; Nov.
". lH7fi. 2 App. Cflf.. 102 ; 4(i

Ii. J. P. C. I ; an L. T. 640. nil Thkbkww f.
np)M>nl Ironi tm- dtuision ot the pm-
[MTior <'Ourt holding the npiu'lUnl

Yearly session
of LegiHiature.

Speaker,
Quorum, &,>',

r 'I

i IIEDEaOK t'.

Landrt.

B.N.A. ACT, 8. 86— CORRUPT PRACTICES.

vears from the dav of the return of the writs for
choosing the same, (suhjoct ncn'crthelcss to either the
Legislative AssiMnl)ly of Ontario or the Legislative
Assembly of Qiiobec Iv'ing sooner dissolved by the
Lieutenant-Governor of the province), and no longer.

86. There shall l)e « session of the Legislature of
Ontario and of that of Quebec once at least in evciT
year, so that twelve months shall not intervene be-
tween the last sitting of the Legislature in each pro-
vince in one session and its iirst sitting in the next
session.

87. Th(» following provisions of this Act respcictiiig
the House of Ccmmons of (kiuada shall extend and
apply to the lu^gislative Assemblies ol" Ontario and
Quebec, tliac is to say, — tlie provisions relating to the
election of a Speaker originally, and on vacancies, tiie
duties of the Speaker, the absence of the Speaker,
the quornm, and tue mode of voting, as if tliose pro-
visions W(;re Jiero re-enacted and made applicable in
terms to eacii such Legislative Assembly.

guilty of ccrniptioii, and in wliidi
tlio Juiiici.il C'oininittct' [Loi'd
Cairns, L.V., pii'sidiiig] thai tin y
liad no |)(>\V(>i- to^^ranl an ii|)|H'al,as
in suuli an action as an i-lt'ction peti-
tion tliciT was no prerogative ol'
the Crown to allow an appeal, it
was, however, .'ii-gned liy Air. Heri-
janiin. that inasniiu,-li as the jndge
had found the ap|)ellaiit persimally
guilty of eorrupl practices, and that
SPc. 2(57 of the t^uel)ec Controverted
Elections Act [.'JH Vict. e. 8. Quebec
Stjitules]|)n)videdthHt,if il is proved
that I'orrupt practices have heen
committed hy, or wi\\\ the actual
knowledge or consent of, any candi-
date, not only the election shall l)e
void, hut the candidate shall, during
the Hcven year.s next alter the dale
of .such decision, l>c ineapahle of
heiug elected to and of sitting
in the Legislative Assembly, of
voting at any 'flection of a meui-

her of the House, or holding nri
otlice in the nominationof theCoiiii.
cil of the Lieutenant - (lovenuir
of the province ; and that tht' .\(i
()f I'arliainenl, so far as it engrjiftol
on the decision of the judge tlii>
declaration of incapacity, was iilln
vires of the powers of the legi^lii-
tiu-e of the province. Lord Ciiirn<
.sail! : "Upon that point their IjohI-
ships do not think il n( cessarv Id
express any opinion whatever, if
the Act of Parliament was iii tlii>
respect, as contended, tif/ra rirff
thi' provincial legislature, the milv
r.'sult will he that the consi'-
<pience declared liy this section "I
the Act of Parliament will not cimri'
against, and will not affect ihi'
peiitioner; hut it is not a sutijrit
which siuudd leiui to any dilTeri-ni
determination with regard to tbiii
part of the caae." [See Note,
ttecs. (1 uud 91.]

B X.A. ACT, s. 88— AS*-E>TT TO PKOVMNCIAL BILLS. " 41

4. — Nova Scotia and Neio Brunsicick.

88. The constitution of the Legislature of each of Constitutions

° , of Legisliitures

the provinces of Nova Scotia and New Brunswick of Novh stotia
shall, subject to the provisioiis of this Act, continue Wunswick.
as it exists at the Union until altered under the autho-
rity of this Act; and the House of Assembly ui New
Brunswick existini^ at the passing of this Act shall,
unless sooner dissolved, continue for the period for
which it was elected.

5. — Ontario, Qnehec, and Nova Scotia.

89. Each cf the Lieutenant-Governors of Ontario, i irst elections.
Quebec, and Nova Scotia shall cause writs to be issued

for the first election of members of the Legislative
Assembly thereof, in such form and by sucK person as
he think? fit and at such time and address to such
returning officer as the Governor-General directs, and
so that the first election of member of Assembly for
any electoral district or any subdivision thereof, shall
be held at the i,ame time and at the same places as
the election for a member to serve in the House of
Commons of Canada for that electoral district.

6. — The Four Provinces.

90. The following: provisions of this Act respecting ArrHofttion to

' ' . . Legislatures of

the I'arlianuMit of Canada, namely, — the provisions re- vroviMons
lating to a})proj)riati()n and tax bills, the reconimenda- money votes,
tion of money votes, the assent to bills, the disallowance; *"^'
of Acts, and the sij^nitieation of pleasure on bills re-
served— shall extend and ajiply to the Legislatures of
the several provinces, as if those provisions were here
re-enacted ard made api)licablt; in terms to the respec-
tive provinces and the Legislatures thereof, with the
substitution of tlu' Lieutenant-Governor of the province
for the Governor-General, of the Governor-General' for

' The tiowor f>f iliwillowimct' is vested in Her Mujosty 1))' Sfca.

i> here votoil in the Governor- 56 and 57, that Ih, in tlie Queen in

Oencral, ir the same mHnn'»ra.s the (^ouneil.
p^wer (if aiwent or disttUowance

urn

. Ui

lui

B.N. A. ACT, K. 90.— DISALLOWING BILLS.

the Queen and for a ^ecrjtary of State, of one year ' for
two years, and of the Province for Canada.

' If notice of Govpinor-Ocnc-
rnl's n.ssont to a provincial Act i.s
not received witliin a year of its pre-
sentation, and the Iiientenant-(}o-
vcrnor's aMseiit is also not received,
the Attorne_v-(lencral of Prince
Edward Island was <i ojiiiiion the
Act could not liave any fore. Hut
tin' Hill conlfl lie re-enactei! and
iis.sentcd to at once if the (loxeri'or-
(leneral has already fjiven his as-
sent. .SVt Pro v. U-H; IHHO, {)03-
005. See see. o?.

Two Hills were passed hy ll.e
Ontario Lejiisiature, one incor;;or-
atinj; the Western and the other
the Kastern Ontario Loyal Oranjije
Ass(H'iatioii. The Minister of Jus-
tice, John A. Macdonald, reported
to the (}overnor-(Jeneral : "These
Acts incorporate two pro\ incir.l as-
sociations. The only oliject of these
nssocialions apiM-arinj^on the face of
the Act is the holdin;a pro-
vincial oliject, the Acts arc within
the competence and jurisdiction of
the iirovincial lejjinlatnrcs. Snch
beinj^ the ca.se, the Lieutenant-
Governor oujjht not to have rcser-
vrfl these Acts. Under the system
of goveriiincnt that olilains in Kiif^-
Innd, as well as in the Dominion
nnd its several provinces, it is the
duty of the advisers of the e.\ecnfi\(
to recommend every measure that
has passed the le<;islature for t' ;>
executive a.ssent. 'I'lie ])r<i\isions in
the B. N A. Act, 'That the Uovcr-
nor-Cleneral may reserve a Bill lor
the sifrniti<'Htion of Her Majesty's
pleasure,' was solely made with
the view of jiiotectinfj Imperial
interests and the maintemmce of
Im|K'rial ]Milicy ; and if your
E.xcellency should exercise the
jK)wer of i-eservation conferred on
yon, you would <l(. so in your ca-
pacity a.s an Imperial oHicer and
under Royal instructions" "So in
any province the Lieutenant-Gover-
nor sliouhl only res<'rve a Bill in
his capacity us tin utticer of the

Dominion, and under instructions
from the Governoi-Cieneral." "Tin-
Ministers of the (lovernor-tieneriil,
and of the Lieutemint-(Jo\»'rnoi', aic
alike hound to oppose in tin- legis-
lature measures of which they dis-
ajjpi'ovc, and if, notwithstanding;,
such a measure is carrietl, the
Ministry should eithci' resi>;u tii'
accept the decision of the Icitisln-
ture, and adxise the passjif^e of tlii'
Bill." " It then rests with the (io-
xcrnor-Genernl or the Lientenaiit-
(fovernor, as the case may lie, tn
consider whether tie Vet contlicts
with his instruc '■ IS or his diifyns
an ImpiM'ial or a Dominion otlicer,
and if it docs so conflict he is hoiuKl
to reserve it,whaleverthead\ iceteii-
dered to him may he, liut if not, he
will doulitless feel it his duty to give
hisas.sent in accordance with ad\icc
to that effect, which it was the duly
of his Ministers to give." He then
.said the Acts were within the coiii-
petence of the Ontario Legislature.
Prov. Leg., 188(5, p. !)()7.

On 11th March 18(>}), theGover-
nor-OeiHM'id wrote to Lord Grati-
ville. Secretary of State : " Previous
to the union of the pro\ inces, the
Ciovernor ol each pro\ince either
assented to or withheld Her Majes-
t\'snss«M(l to, or rescr\ed for Hei
Majesty's asst-nt, such Bills passed
liy the legislnlurc as he thought jiro-
per, and he was especially enjoined
liy the H( \al instru<'tions to reserve
certain classes of BilK therein speci-
fied. The same jiracticc is .ontiiuied
liy the I'^nion Act with i-cspect to
legishition of the Parliament of
Canada. The Act pio\ ides tliai
the Licutenant-GoNernor of encli
pro\inec may reser\c Bills foi' the
consideration of the Goveriwir-
Oeneral, lint there in no pro\ i-ioii
l>y which the lattei' is to lake Her
Majesty's pleasuie on such Icgislii
tion. The Royal instruciions ao-
silent on this jmint. In I'.ie ahsoncr
of instructions, I a.ssinne tlint I
sbouiti exercise the power of assent

B.N.A. ACT, B. 91. -DOMINION POWERS.

to, or reservation of, Bills under the
advice of the Privy Council of tiiis
Dominion."

On 8th May 1S(>!), Earl Gran-
ville wrote to the Governor-Genoral
of Ciiimda (Sir John Yonni;) : " The
|)ruliii)itions in the seviuitii para-
gnipli of the Royal instructions,
with one quaiiticafion, rest on
grounds of Imperial poli('y, and,
therefore, the Governor-Oencral of
tiie Dominion is not at liberty, oven
(III the ad\ ice of his Ministers, to
sjiiietioii or assent to any proxincial
liiw in violation of them. He would,
imleed, he hound to instruct the
Lieutenant-Governor ot the pro-
vince not to {jive such as.st-nt.

"With rcfjard to the -ecoiul
point, if tiie Governor-Ciriieral were
advised hy his Ministers to distdlow
niiy provincial Act a.s iHcgid or un-
constitutional, it would in general li(>
Ills duty to follow that advice,
whether or not he concurrt'd in
their opinion. If he were advis«'d
hv his Ministers to .sanction any
Act wiiich appearetl to him illegal,
it would he his duty to withhoM his
sanction and refer the question to

the Secretary of Stiite for instruc-
tions. The .same course might he
tjiken if the Act recommended for
sanction hy his Ministers ap-
peared gravely unconstitutional,
lint it is inipossilde to relieve the
(Jovcrnor-General from the duty of
judging, with respect to each par-
ticular case, whether tlie objection
to an Act, not of doubtful legality,
is sutliciently gra\»' as, undei- all
circumstiuices, to warrant a refu.sal
to act at once on the advice ten-
dered to him. W ith regard to your
riMuark tiiat it is wortiiy of consider-
ation whether it would not Im' exp«'-
dient to establish a tribunal for the
decision of all questions of constitu-
tionaUawandcoidlict of jurisdiction,
I see no reason for the c.stal)lishmeut
of such a tribunal. Any (pie.stion
of this kind could lH'enterti>"ned and
decided by the local courts, subject
to an appeal to tlu* .lutlicial Com-
mittee of the Privy Council, and
It does not aj)pear in what re-
spect this mo<h' of determination
is likely to he inadequate. Prov.
Leg., pp. 0, 8. See p. 30 and note
to .sec. 93.

VI. — Distribution of Legislative Powers.
Powers of the Parliament.

91. It sliall Im; lawful for the Queen, by and with i^Riciatiro
the advice and consent of the Senate and House of PnriiBmcntof
Commons, to niak laws for the peace, order, and **"" '
good goverr.nient of Car^ada, in relation to all matters
not coiiiini?; within the classes of subjects by this Act
lassigiu'd exelusivv^ly to the Legislatures of the pro-
jvincos,' arid for greater certtiinty, but not so as to
Irestrict the g(^nerality of the foregoing terms of this

' \Mifn the. >;iil)jcct -matter is of come w'thin one or more of the L'Ukiok St.

''"■«' or piivnle nature, " the «««» classes of the subjects specially Jacques e.

■' on the" prrson ..llepii.g the pro- ••■""'"^••"t';<l i" the 91st «ec." See »«'-"i-'^-

w^„ ■ 1 4 ' ■' " .', . Lord Selboini' in LI nion St.

;-n<ml A<t .1,,,., not come within ,,„,.^,„.^ ,,^ Montreal v. Belisle.

«'w, „ the provincial Pnrlin- [„ Quebec Q. B. 20 Sept. 1H72, 1 7 A

fctut to 8how tlut " it does also 2U L. C. -J. 212, 29; H July 1874,

1 ' ' *

For convi'ni-
encn of rofor-
enco 8ul>-src. 29
is hero printed.

L'Uniok St.
Jacques v.
Belisle.

B.N. A. ACT, s. 91.— THE SCHEME OF a..s. 91, 92.

section, it is horoby doclanHl that (notwithstanding

anytlnng in this Act) ' the exclusive leglshitivc uu-

thority of the; Parliament oi' Canada (extends to all

matters comini^ within tlu; classes oF subjc^cls next

hereinafter enumt!rat(Hl ; that is to say, — [see page 52.]

[Sub-sec. 2J). — Such classes of subjects as an; expressly

excepted in the enumeration of the classes of

subjects by this Act assigned exclusively to the

Legislatures of the provinces.

And any matter coming within any of the classes of

subjects enumerated in this section shall not be deemed

to come within tlie class of matters of a loctil or private

naturt; comprised in the; enumeration of tlu; classes of

subjects by this Act assigned exclusively to the Legisla-

tures of the provinces.]

L. U. (5 P. V. 31; 31 L. T. Ill;
22 W. R. 933.

Hix Lonlslii|) also suit! tlicrc,
" Tiu' sciiciiif ol' the 91st aiiii 92ii(l
sees, is tliis. By tlif 91st sec. some
uiuttor.s — and tlu'ir Iior<lsliips may
do well to assuino, Tor tiic ar<^ii-
mcnt'.s sake, tliat they arc ail inal-
tPfs cxc'i'pt tliosf ai'tcrwurds dealt
with by till' !)2iid sec. ; tlii-ir liord-
Hhips do not dt'i-idc it, hut tor tlu'
nrgiinu'Ht's .sake will a.ssiiiiit' it —
certain inatlcrs, heiii;;, upon that
Bssuiuptioii, all tlio.se whieh are not
nuMitioiied ill the f)2iul see., are re-
served I'or the exclusive le;;islation
of th«' Parliament ol' Canada, called
the Dominion Parliament ; Imt hc-
vond eontro\er.sy, there arc certain
other matters not only not reserved
for the Dominion Parliament, l)Ut
as.signe<l to the exclusive power and
conipotcney of the provincial Icj^is
lalureinea •hproviiu'c. Amonf^fhe.sc
the last is thus expressed, 'f^encrally
all matters of a local or private na-
ture in the province.' " Srv further
note of this cn.se, .suh-nec. 21, .sec. 91.

' This indicates that the legisla-
ture of the Dominion Parliament
(ice R. S. C. c. 120. see. 53,
sub-sec. 2), so long as it strictly
relates to these matters, is Ut be of

paramount authority, although,
acting under this .section, the l)o-
niinion Parliiuueiit may tremli
upon matters a.ssigned to the [tn).
vincial legislature. Compai'e this
sub-sec. with sub-si'c. 13 of sec. !)2.
Sie there Tcnmint r. Union H:uik
of Canada. From Onttu'io ('. A.,
H Jan. 1H92, 19 (). A. 1. In
P. ('. 9 De<. 1H93, [1894] A. ('.
IM). 31-40; 03 L. J. P. (". 25:
«9 L. T. 774 [Warehouse re<ri|)|.
as security for an advance].

This .section docs not o|)criiii' ;i«
a withdrawal (;f the suburis ns-
signed to the legislature of the Do
minion from the cogni/ance ol iln'
pro\ incial parliaments, if there is m
legislation of the !)ouiini(ui in ex.
istence on the subject in (pa'stidii
Att.-tlcn. of Ontario t'. Att.-Oin.
for the Dominion of (^inada. Fruiii
Ontario V. A., 9 Mav 1H93, '20
O. A. IS9. l{e\.rsed" in P ('
Feb. 24. [1H94J A. V. 189; («
L. .1. P. C. 59; 70 L. T. ViK
Sev sub-sec. 13, sec. 92.

Dealing with the hypothesis ol
a law having Im'cii prtivio.islv
pa.s.scd by the Dominion Ijcgisla-
ture to the effect that any associa-
tion of this particular kind through
out the Dominion on ceiuin

B.N. A. ACT, s. 91.— COMPETENCY OF PROV. ACTS. 45

iiKcifiod conditionn, iissiiincd to
lie cxiiflly tliosf wl. it'll a|)|)*'iu' on
llip fiice of this .statute [«.«'., a
hioviiH'ial Act (It'iiliiij; with a
local iiikI private a.s.soeiatiou, pi'o-
vidin^ liiat tilt' mi'inlM'is Hlit)iiltl Ih>
('(im|)i'll>tl tt) at't't'pt a I't'tliit't'il pay-
iiit'iit],^l'<"iltl tiu'n'iipoii,«7«w_/«('/f),
fall luiiliT tlii^ Ifgal udiiiini.stration
ill limii{i'iiptcy or insolvt'iiey, Lt)rtl
Si|l)i)nie saitl, in ri'l^iiioti St.
,lm'i|iii's dt' Montreal c. Helisle, in
court i)t'lt)w liO L. C. J. 21), in P. 0.
.IiilyS.lH7i,L.H.(JP.('.;}7,"Tlu'ir
Loiilsliips are not prepiirctl tt» say,
if liny siit'li law as that hiul httcii
|)ass(Ml l>y (he Dominion lii'f^islatiire,
il wdiilil have been lieyonti tiieir
i''iin|ii'teiicy ; iitir that, it' il hatl heen
<o passed, it would havelieen within
llio fi)iiipi!teii(;y of the provint'ial
li'ijisl.itiu'eafterwartls to take a jiar-
licular association t)iit ol' the seope
of II ;,'ciieral law of that kind, st»
cijinpi'tcritly passt^il liy ihe aiitlitirity
which liiiil power ttt tieul with
liiinknipttry aiitl insolvency." See
:ii)()Ve.

Ill TlIKIIKKCiE r. L.VNDIIY, flOUl

Slip. ('. Qiiobec, 27 June 1H7(J, in
1'. (". Nov. 7, 187(5, 2 App.
Ciis. 1(2, p. 10!); IG L. J. 1; Vi
li. 1". (Mit, thu .fiitlicial Cominitteo
h'ld llii'v hail no pt)\V('r to {ijiinit
leave to ap|)t!al IVoin a tlecision,
mnlcr the t^uehee Conlrovi^rted
KltrlitHis Act, 187o (liH Vit;t. e. H),
ill which llii^ j»d^e hud ftiiintl the
|iiMiti()iicr pt>rsonally guilty of eor-
rii|il practices ; hut Mr. Beiijaiiiin
iir;^iii'(l, .sccontllv, even if an appeal
-liiiiiM not Im' adinittetl <;enera!ly,
iliat the Act in que.'«tioii, the 'AH
Vict. c. H. [Quebec .statute], so
fur Hs it by .sfc, 2t)7 eii<^rai'ted on
lilt' tlccisitin t)t the jiulf^e a tleelara-
liuii of int!apacity for seven year.s
ti) Ik- elt'ctetl or to \ ote, etc., ftir a
iiicmiici of the Lff^islalivt' Asseni-
lily, was ultra rinx tiie Quebec
Lcf^islatiire. Tiit! Quebec Legisla-
Iiiic have no power to pass any
|ii'ovision relatinj; to ipialilication
liei'pi what wa.s bestowed by sec.
f^lof the 13. N. A. Act, lH(i7. Hut

their Lordships declineil in that TuRnBRdB i'.
action to givti any decision on this biNDiiv.
point. See sec. 84.

Tilt? Dominion Parliament pii.M.sed
an Act, 43 Vii;t.tt.25.8. 70[untler the
Imperial Act ,'M <fe .ifj Vict. c. 28.,
to pioviile for atlministralitiii, peace,
oilier, anil good government of any
territory not for thetiinebeinginclu-
detl in liny province] which establish-
ed A criminal trial before two nuiuis-
trates and ii jury ot si.x, instead of,
in Enghindbefore a jiiiigeanda jury
of 12. Held by the Judicial Com-
mitti'e that there was not the least
colour for contemling that the Act
was itlfni rircs, anil bi^yoiul the
eoiupeteni'y of ihi^ Dominion Par-
liament, betiause the words of the
stJitiite wert! apt to iiiitliori/e the
iitinos! ilist'iftion of enactment for
theattainiuenlof theobjf^cts pointed
to. And s|iecial leave to appeal
was refused. Kiel's ease, 10 App.
Cas. 075.

By the Dominion Act, .'17 Viet,
c. lOii., the Colonial Jiuihling and
Investment Association was incor-
porated. The company was incor-
porated to carry on its busint.'.sH,
consisting of various kinds through-
out till! Dominion, but, in fact, it
conlineil this exerci.se of its powerH
to one [irovince, namely, to Quebec.
The Attornciy-Geniiial of Qiielicc
maintained that the company's ob-
jects being local, and of a private
nature, its incorporation Ijelonged
e.tclusively to the jjrovincial legis-
lature of l^ueliec; that the company
could obtain authority to Jo its
business if it obtaineil the consent
of the local legislature. That
under the Civil Coile [see Arts.
358, 3U1, 3GG, 997, 1,007, 1,008J,
the law of Quebec, corporations
cannot holil lands without tin; con-
seni of the Crown or the provincial
authority. [See Chaiiiliere Gold
Mining Co. r. Desbarats, L. 11. 5
P. C. 277. J Therefore, acting in
Quebec without that con.seiit was
ill(!gal, but he did not go so far as
to say the company was illegally
iueorporatetl. [JSve Note, sub-sec.
11, sec. 92.]

:: J

;; f! i

il ■;:
[' alli

^T^

ifl B.N.A. AOT.H.Ol.— INCOHPORATIOX OP COMrANTES.

COUINUI.
lit'll.DI.Mll

Ahso. c. a it."
(Jkn. Uukukl'.

'I'lif (|ii<'.Mtii)ii I'liiiic up fur (In-
cision in ('ol.l)NIAI. ISCII.DINU AM)
InVKST.MKNT AsSttC'IATKtN V. 'I'lIK

Attiiiim:v-Ui:m:u\i. or (^ikiikc,
from Cl. q. U. (jiicIm'c, 'J I Mnnli
1HH2, 27 L. C. J. 21)5; in IV ('.
Dee I, \HH;i, {) A|i|>. I'lis. 1,'»7 ;
53 L. .). I'. ('. 27; IJ) I.. I". 7H!).
Till' Couit oi' <iii(iii"> IJi'ncli,
(.^ucIkm-, lit'lil liy II iimJDiity llml
tlif ('<ini|iiiiiy WHS not illf<{iiily in-
<-(ir|iorati-il, Itiil, l'olli)\viii<r some ri'-
iiiurks niadr in ('ili/.ciiN' InMiniiici'
Co. r. l':ii!<(.ns, Nov. 2(!, 1H81,
7 App. ('as. !)(5; 51 li. .1. VA\ 11;
45 li.T. 721 ; in Cl. Im'Iow, t S. ('.
1{.215; tliov liciil thai tliiMissdciii-
tion liml III) ri<;lit lo iict as a corpora-
lion in rcsprcl of some ol' ils most
iinportani opcralions in (^nclifc,
naiiH'ly, dt'iilin;.; in laml, iiikI acting
inrunlriucnlionof tli<-l)iiililin};A('ls
ol' till' pro\ iiK'i', iind proliibilci'. lliciii
in Mh.soliitc It'i'ins I'roni so actin<;.
Sir .Monla<;iic .Smith, ;;i\ in;; jndfj-
nii'iit in the l'ii\ y Coimcil, ii^ircfd
with till- (jiifhi'c court that the
ii.s.sociation was duly and !c;;ally in-
corporated, hilt reversed that court's
decision, lioldin<; they were wrony
in {^rantin<; an injunction, hecausp,
ulthoii<;ii by Chaiidicro (iold
Mininij; Co. r. Deslinrats (an
American companv), .Iiilv 25), 1H73,
L. W. 5. R C. 277; 42 L. J. I'.C.
73, it was recofjiiised tliat hy the law
ol'tjnebec "corporations cannot ac-
(piirc or hold lands in (^iicliec with-
out the consent of the Crown." . . .
"It mayalsoheassinned,f()r the pur-
poses of this appeal, tliat the power
to repi'id or mndil'y tjiis law tails
within sub-sec. 13 of sec. 02 of the
B. N, A. Act, and bi'lonfjs e.vclu-
sivoly to the pro\incial lc<jislature ;
HO that the Dominion Parliament
could not confer powers on the
comifany to override it. Hut the
powers found in the Act of incor-
poration are not necc.s.sa-ily incoii-
sLstent with the provincial law of
mortmain, which does not abso-
lutely prohibit corporations from
holding lands, but only requiivs,
a.s u condition of their doing so,

that they shoidd havti the conm-iit
of the Crown. If that consent lie
oiitained, a corporation diM's not
infriii<re the provincial law of mort-
main by acquiring; and holding;
lands. What the Act of Incorpo-
ration has done is lo create a lejrul
and arlilicial person with capaciiy
to carry on certain kinds of biisiiies!!,
which are detined, within a delined,
area throughout the Domiiiion.
Among other things it him giMii
the association power to ih-al in
land and buildings ; iiut the ciijui.
city so given only enables it to ac-
ipiirc and hold land in any proviiicK
consistently with the laws of timt
province relating to the acipii.«ition
and tenure of land. If the company
can so acipiire and hold it, the Ad
of Ineoipoiation gives it cii|)ueity tu
do so. It is .said, however, tliiit
the com|)any has, in fact, violatiil
the law of the provinci- by ac(piirin<;
and holding land without haviiii;
obtained the con.sent of the Crown.
It may be so, but this is not the
ca.M' made by the |M'titi()n. Pro-
ceediiigs founded on the allegi'd
violation by a corporation of tlif
mortmain laws would involve an
iiupiiry o|)ening ipiestions re-
garding the sco|M' and effect of
these law.-i — the fact of the Crown's
con.sent, the naturi' and sufliciencv
of the evidence, tlie consequence of
a violation of the laws, and liie
|)ioper parties to take advuntage of
it — questions which are certainly
not raised by the allegations and
conclusions of this {M'tition. So
with respect to the objections
foiindeil on the Acts of tlie pro-
vince with regard to building so-
cieties." " Dorian, C.J., appears
to Ih> of opinion that, inasmuch iis
the legislature of the provin«'e Imil
pa.s.sed Ai'ls I'clating to such sm-'w-
ties, and delined and limited tlicir
operations, the Dominion Parliii-
inent was incompetent to incorjio-
rate the piesent a.ssoeiation, having
proved its objects the erection of
buildings throiigliont the Dominion.
Their Lordships at present fail to
see how the existence of tliese pro-

B.N.A. ACT, s. ni.— INSURANCE ACTS.

viiii'inl Acts if comiM'tciitly passfd
III!' liM'iil (il)jfi'ts, ciiii intci'lVrf witli
i|ii> |i(i\vi'i' of till- l)i)iiiiiii()ii Parlia-
iinrit lnH ims I'callv inlViiiifcd
(III' Uiiil'liiiv; •'^"I'tflicH Ai'ls, a pio-
|Hrn'iiii'il\ may (1(>uI)|I)'h.>4 Iii> ritiitiil,
iiihi|)ti'<l ti) such u violation ol' the
|ii'()\'iiM'iiii law; l)iit, us tlicii- lioril-
,|ii|is liavc just, ohscrvcd with
ivl'dviicc to tbi' supposed coiitra-
vi'iiiion ol' llic Mortmain Acts, that
is iiiil the case made out hy the
|H'tiiii>ii." i[is lioi'dsiiip thru went
iiiliiwhiit the petition really alleged,
ami said iiapiiiies were* mainly
ijircclrd in this case to the alle;;a-
liiiii tliMt the company's operations
liiiil lieeii limited to the province of
(^iii'Ihi', and then continued : " It
w'liiiiil In- a violation not only of the
iii'iliritii'v rules of pr(N-edurc, hut of
iiiii' ti'iid, to decide this appeal on a
iiiw CISC, which, assuniin^ja lawful
inr|Kinition, rests on the siipftitsnl
iiilViii;;! mcnt of the laws of the
{imviiM'c hy the company in con-
iliii'tiii;; its o|M>rations.'' llis Lonl-
>lii|i I'ltntinned to say: It was quite
plMiii that under the i'ivil Cixh-, art.
litis, tlie conclusions of the petition
tti'if not ada|)ted to the case now
ivIicdoM. [.SV'f suh-sec. I l,s«'c.SH!.]

Kiiii ScllKMnc, li.C, said, in
Ait.-Oeii. of Ontario r. Mercer,
Julv IS, \HH:\, H a pp. ('as. at
P 77('.; .J2 L..I. 1'. V.H\; JllL.T.
;;i:!; nnd l.eh.w, .-) S. ('. |{. .WH,
iImiI the extent of the provincial
|i(i\vcr(if le;j;i"*l"tm'e oxer " pro|M'rtv
mill civil i'i<;hts in the province- '
I'.iniiiit lie a.scertained without at the
siiiic lime ascerlainin<; the power
iiiiil ri;;liis of the Dominion niulcr
«ns ill nnd 102.

.V(( sec. 10!) for full rejiort.

In ('rri/.i:Ns' iNsrn.wt"!-: Co. r.
l'.\H.soxs, U(i Nov. 1H81, 7 A|)p.C'as.
!*i;.)lL.J.I'.C'. 11 ; |-)Ii. r..2l;
aiiillHlow, I S. ('. H. 215, which
wiiMiiitiction furdechiration thatthu
lliiiaiii) Act, ."{!» Vict. c. 24., which
iliaiswiih policies of insurunce in
j t'livi ill the pruvincc, was »///«/ f)//r».

Sir .Montague Smith, delivering the Citixbns' Im.
judj;meut, holding that the Act "<"»>"-« t"o. «

was valid, said : " 'I'he scheme of
the B. iV. A. legislation, as ex-
pres.sed in lirst hranch of sec. S)l, is
to give to the Dominion I'arliament
authority to make laws for the good
govcriuucnl of ('ana la in all malt<-r.s
not couiing within the classes of
sulijects a.ssigned exclnsixcly to tlio
provincial h'gislatnre. If the Wist
sec. had slop|H>d here, and if the
classes of suhjects enumerated in
sec. !)2 ha<l lieeu altogether distinct
and dilTerenl from those in .s(H'. !)I,
no conllict c»f legislative authoiity
could have arisen. The provincial
legishilures would have had e.\»'lu-
sive power over the si.\t(!en classes
of sul)jects assigned to them, and
the Dominion Parliament exclusive
power ovci' all other matters re-
lating to the good government of
Canada. Hut it must ha\e heen
foreseen that this sharp and deliuite
distimtiou had not liecii, and eoidd
not he, attained, and that some of
the classt'S of sulijc<'ts assi^iu'd to
the proxnicial legislature unavoid-
ahly run into and wereemhraced liy
some of the enumerated cla.sses of
subjects in .sec. !)1, hence an en(h-a-
voui' apjtcurs to have lie«-n made tu

l'Alti40N8.

|.n

de f

or ca.ses o

f a|>|

>arcnt con-

tlict ; and it would ,sc«'m tlmt with
this object it was dechired in the
second hranch of the !)lst sei-. 'for
grcatci' certainty, hut not so as to
restrict the geia-rality of the fore-
going terms of this section,' that
(notwithstanding anything in the
Act), the exclusive legislative au-
thority of the Parliana-nt of
C'anutia shoidd extend to all mut-
ters couMUg within the classes of
sul>j«'ctsi'nnmerated in that section.
With the same object, ajjparently,
the paragiaph at the end of si>c. !)1
was introduce<l, though it may be
observed that this paragra[ih applies
in its granwnutical construction only
to No. Hi of sec. !)2."

"Not withst4uuling this endeavour
to give pre-eminence to the Domi-
uiun Purliument in cases of u con-
flict uf powers, it is obvious tUut \u

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48 B.N.A. ACT, s. 91 —TESTING VALIDITY OF ACT.

Citizens' In-
surance Co. V.
Parsons.

Valin v.
Lanolois.

some cases wiiere this apparent
conflict exists, the legislature could
not have intended that the powers
exclusively assigned to the provin-
cial legislatures should be al)Sorl)ed
in those given to tlie Dominion
Parliament. Take as one instance
the subject of ' Marriage and ')i-
vorce,' contained in the enumera-
tion of .subjects in sec. 91. It is evi-
dent that solemnization of marriage
would come witiiin this general
description, yet ' solemnization of
marriage in tiie province ' is enu-
merated among the classes of sub-
jects (sub-sec. 12) in sec. 92, and no
one can doubt, notwitlistauding th's
general language of sec. 91, sub-si'C.
26, that tliis subject is still within
the exclusive authority of the leg'
latures of the provinces. So 'i",„
raising of money by any mode or
system of taxation ' is enumerated
among the classes of subjects (sub-
sec. 3) in sec. 91 ; but though the
description is sutKciently large and
general to incluile ' direct taxation
within the province, in oi'der to th(^
raising of a revenue for provincial
purposes,' assigned to the provin-
cial legislatures by sec. 92 (sub-sec.
2), it obviously could not have hi en
intended that, in this instanc also,
the general power should override
the particular one. With regard to
certain classes of subjects generally
described in sec. 91, legislative
power may reside, as to some mat-
ters falling within the general des-
cription of these subjects, in the
legislatures of the provinces. In
these ca.ses it is the duty of the
courts to ascertain in what flegree
and to what extent authoiity to
deal with matters falling within
these classes of subjects exist in
each legislature, and to define in
the particular case before them the
limits of their respective powers.
It could not have been the intention
that a conflict should exist ; and, in
order to prevent such a restdt the
two sections must be read together,
and the language of one interpreted
and, where necessary, modified by
thdt of theother. In this way it may,

in most cases, be found possible to
arrive at a reasonable and practical
construction of the language of the
sections, so as to reconcile the re-
spective powers they contain, and
give effect to them all." " In per-
forming this difficult duty it will
be a wise course for those on whom
it is thrown to decide each case
which ari.ses as best he can, without
entering more largely tipon an in-
terpretation of tiie statute tlian is ne-
cessary for the particular question
in hand." See sub-sec. 13 sec. 92.

Lord Selborne said, in Valin v.
L.\NGLf)i.<, in the Court below,
3 S. C. R. 1, in P. C. Dec. 13,
18^9, 5 App. Cas. 115; 49 L. J.
P. C. 37 ; 41 L. T. 6G2, that " if
ilie subject-matter is within the
•^"rl.^diction of the Dominion Par-

iv'.it it is not within the juris-
(lic*inn of the provincial Parlia-
.ent.. and that which is excluded
by the Olst .sec. from the jurisdic-
tion of the Dominion Parliament is
not anything else than matters
coming within the classes of sub-
jects assigned exclusively to the
legislatures of the provinces." That
ca.se decided that the Dominion Act,
37 Vict. c. 10., created a new juris-
diction for the trial of election pe-
titions in delegating to the existing
courts of the different provinces,and
was valid under sec. 41 [which see].

By that section it is enacted that
the old mode of deciding certain
questions was to continue until the
Parliament of Canada should other-
wise provide. Therefore it was
the Parliament of Canada which
was to provide. {Ibid.)

" The first step to be taken [see
sub-sec. 13, sec. 92, Note] with the
view to test the validity of an Act
of the provincial legislature is to
consider whether the subject-matter
of the Act falls within any of the
classes of subjects in sub.-sec. 92.
If it does not, then the Act is
of no validity. If it does, then
these further questions may arise,
namely, 'whether notwithstanding
that it is so the subject of the Act

does not fa

enumerated

.section 91,' «

of the prov:

is not thercl;

Watson in Di

ities Board, ii

19, 1880, 20

•hin. 21, 1H8I

51 L. J. P. c.

In tlie I'i,

i S. C. R. 0

the Dominion

establishing a

jurisdiction f(

Ontario, was

minion Parlian

The 40 Vic

persons the lik

dies in all matt

of contract and

in rem and in

outofor connec

.shipping, or t

on any river, ,

whole or part

of Onttirio as s

have in any exi;

Admiralty Couii

■■^iich court ext

province.

Kitchie, C.J
"'i'''f'B.N.A.i
the Dominion Pj
sive Iegi.slative a
several subjects,
estjil)lish courts
ministration of t
I liave not heard
•lie slightest dou
of this Act."

'Vee, for cond

Reg. r. Burah, .

t'as.I)p. 889-905

Law, 55. There t

'^ml in Council det

and ordinary cour'

Act 22 of 1869 to

'ictilar district frc

uf the ordinary coi

'oplaceit(s.5)uu(

oflices to be app(

sponsible to, the I

"or of Bengal,

ijieutenant-Gover

what time that

B.N. A. ACT, s. 91.— DOM. ACT dealing with ONE PROV. 49

does not fall within one of the
enumerated classes of subjects in
section 91,' and whether the power
of the provincial legislature is or
is not ihorchy overborne." Lord
Watson in Dobie v. The Temporal-
ities Board, in Q. B. Quebec, June
li), 1H80, 26 L. C. J. 170 ; in P. C.
Jan. 21, 1882,7 App. Cas. p. 149;
51 L.J. P.O. 26; 46 L. T. 1.

In till' Picton, Dec. 13, 1879,
4 S. C. R. 648, it was held that
the Dominion Act 40 Vict. c. 21.,
establishing a court of maritine
jurisdiction for the province of
Ontario, was intra vires the Do-
minion Parliament.

The 40 Vict. c. 21. gave to all
persons the like rights and reme-
dies in all matters (including cases
of contract and tort, and proceedings
in rem and in personam) arising
out of or connected with navigation,
shipping, or trade or commerce
on any river, Ac, of which the
whole or part is in the province
of Ontario as such persons would
have in any existing British Vice-
Admiralty Court ii the process of
such court extended to the said
province.

Ritchie, C.J., said in that case :
" The B. N. A. Act, sec. 91, gives to
the Dominion Parliament the exclu-
sive legislative authority over these
several subjects, and also j)ower to
establish courts for the better ad-
ministration of the law of Canada.
I have not heard a word which casts
the slightest doubt on the validity
of this Act."

iS'ee, for conditional legislation,
Rec. r. BuRAH, June o, 1878,3 Ap.
Ciis. pp. 889-905 ; Wheeler's P. C.
Law, 55. There the Governor-Gen-
iTal in Council determined, in the due
iiiul ordinary course of legislation, by
Act 22 of 1869 to remove (s. 4) a par-
ticular district from the juriscUction
of theordinarycourtsand offices, and
lo place it (s, 5) u uder new courts and
offices to be appointed by, and re-
sponsible to, the Lieutenant-Gover-
nor of Bengal, leaving it to the
uieutenant-Governor (s. 8) to say at
what time that change shall take

S 9840.

place, and also enabling him, not I^obib v.
to make what laws he pleases for Tempobalitim
thf t or any other district, but to ■"°*"°-
apply by public notification to that
district any law or part of a law
which either always was, or from
time to time might be, in force, by
proper legislative authority. And
by sec. 9 he might extend these pro-
visions to another district.

Lord Selborne, after saying the The Picton.
giounds of the decision of the High
Court was that what the Governor-
General in Council had done was a
delegation of legislative power, " In
the leading judgment of Markby,
J., the principles of the doctrine of
agency are relied on ; and the
Lidian Legislature seems to be
regarded as in effect an agent
or delegate, acting under a man-
date from the Imperial Parliament,
which must in all cases be exercised
directly by itself. Their Lordships
cannot but observe that, if the
principle thus suggested were cor-
rect and justified the conclusion
drawn from it, they would be un-
able to follow the distinction made
by the majority of the judges be-
tween power conferred upon the
Lieutenant-Governor of Bengal by
the 2nd and that conferred on him
by the 9th section. If by the 9th
section it is left to the Lieutenant-
Governor to determine whether the
Act, or any part of it, shall be
applied to a certain district, by the
2nd section it is also left to him to
determine at what time that Act
shall take effect as law anywhere.
Legislation which does not directly Rbo. i-. Buuah.
fix the period for its own com-
mencement, but leaves that to be
done by an external authority, may
with quite as much reason be
called incomplete as that which
does not itself immediately deter-
mine the whole area to which it
is to be applied, but leaves this to
be done by the same external
authority. If it is an act of
legislation on the part of the ex-
ternal authority so trusted to en-
large the area within which a law
actually in operation is to be

1 1 1-

f tl i

!l I

B.N.A. ACT, s. 91— DOUBLE LEGISLATION.

Kbo. v. BiTKAH. applied, it would seem a fortiori
to be an act of legislation to bring
the law originally into operation by
fixing the time for its commencp-
ment. But their Lordships are of
opinion that the doctrine of the
majority of the Court is erroneous,
and that it rests on a mistaken
view of the powers of the Indian
Legislature, and, indeed, of the
nature and principles of legislation.
The Indinn Legislature has powers
expressly limited by the Act of
the Imperial Parliament which
created it, and it can do nothing
beyond the limits which circum-
scribe these powers. But, when
acting within these limits, it is not
in any sense an agent or delegate
of the Imperial Parliament, but
has, and was intended to have,
plenary powers of legislation, as
large and of the same nature as
those of Parliament itself.

" The established courts of jus-
tice, when a question arises whether
the prescribed limits have been ex-
ceeded, must of necessity determine
that question ; and the only way in
which they can properly do so is
by looking to the terms of the in-
strument by which, affirmatively,
the legislative powers were created,
and b a hich, negatively, they are
restricied. If what has been done
is legislation within the general
scope of the affirmative words
which give tlie power, and if it
violates no express condition or
restriction by which that power is
limited (in which category wo>ild,
of course, be included any Act of
the Imperial Parliament at variance
with it), it is not for any court of
justice to inquire further or to
enlarge constructively those condi-
tions and restrictions." See sec. 41 .

Double LEGisr.AxiON. — It ap-
pears by Hodge v. Reg., and Par-
sons V. The Citizens' Insurance
Co., that there may be Acts both
of the Dominion Parliament and
provincial legislatures dealing with
the same subject-matter. But in
the New Brunswick Act, 40 Vict.,
1H77, sec. 19, it was provided that

Ex parte
Pillow.

no dealer should, inter alia, per-
mit any Indian to drink on the
premises, and a penalty was im-
posed for disobeying this enact-
ment. The Deputy Minister of
Justice referred to the fact tlmt
among the subjects specially le-
served for the exclusive legislation
of the Parliament of Canada is that
of the Indians, and alluded to the
opinion of the Minister of Justice,
20 Oct. 1876, upon the statutes
of the Legislature of Prince Edward
Island, sec. 16, cap. 2., which pro-
vided no liquor should be sold to
any Indian ; and pointed out tlint
these provisions are in direct con-
flict with those of the Dominion
Act of 187C, 39 Vict. c. 18. .sec. 79.,
both as regards the amount of the
penalty and its disposition, and
that it seemed clear that the loeiti
legislature, either in Prince Edward
Island or elsewhere, legislating on
matters relating to the Indians
could not fail but to cause confn-
sion, and that there ought not to
be double legislation on the sub-
•ect. Prov. Leg., 188G, p. 527.

Where similar provisions are
made in a provincial Act as in a
Dominion Parliament Act about
the .same date, the Minister of .Jus-
tice reported that as no public in-
convenience could arise, the pro-
vincial Act might be left to its
operation. These Acts referred to
Insolvent Banks, Insurance Com-
IJanic*, Loiui Companies, Building
Societies, and Tiwling Corporii-
tions.

An Act of the Dominion Parlia-
ment (31 Vict. c. 70.) providing
for the taking of evidence in tiio
provincial court to be used outside
the province is valid. Wetlierell
V. Jones, Sept. 15, 1883, 1 On-
tario R. 713. See sec. 92, snb-
sees. 13, 14, 16.

Torrance, .1., .said in e.r parte
Pillow, July 5, 1883, 27 L. C.
Jurist, 216: "The power of tliP
Dominion Parliament to pass a
general law of nuisances as inci-
dent to its right to legislate ns to
public wrongs is not incompatible

II I

B.N. A. ACT, s. 91 .— PBOCEDURE IN SANCTIONING ACTS. 51

as in n
about
ol' Jus-
hlic in-
le pvii-
ft 10 its

[■(MMVll to

Colli-
Biiiltliiig
Corpoiii-

11 Piirliii-
M'oviiling
cp ill till'
(\ outside
tVotliPi't'll
3, 1 Oii-
92, suh-

e.i

i?i'

paH(
:7 L, C.

of the

|o pi*'*' f
as inf-
late as to
lompatiljlf

with a right in the provincial legis-
Ifitiires to pas.s " a law authorizing
tlie municipal corporation.s to pass
l)V('-laws dealing with nuisances as
incidental to legislation for iniini-
lipal institutions.

On the 9th June 1868, the Cana-
dian Privy Council receivedamenio-
niiiiluin from the Minister of Justice
idative to tlie course to be pursued
witli respect to the Acts passed by
the provincial legislatures before
thoiii. The memorandum said :
"The same powers of di.sallowancc
lis have alwr.ys belonged to the
Imperial Government with respect
to the Acts pa,s.sed by colonial
K'Sjislatures have been conferred by
the Union Act on the CTOverniuent
of Canada. Of late years Her
Majesty's Government hiis not, as
ii general rule, interfered with the
legislation of the Colonies havins;
repi'oseiitativc institutions and res-
ponsible government, except in the
cases specially mentioned in the
instruction to the Governors, or in
mutters of Imperial and not merely
local interest.

"Under the present constitution
of Canada, the Governor-General
will be called upon to consider the
propriety of allowance or disallow-
ance of provincial Acts much
more frequently than Her ^Nlajes-
ty's Government has lieen with
respect to colonial enactments. In
deciding whetlier any Acts of a
provincial legislature should be
disallowed or sanctioned, the Go-
vi'i'nnient must not only consider
wlietlier it affects the interests of
the whole Dominion or not, but
iiko whether it be unconstitutional
— wiieti er it exceeds the jurisdic-
tion con. 'erred on the local legis-
liitiircs — and in cases where the
jurisdiction is convenient, whether
it dashes with the legislation of
thi' General Parliament.

" As it is of importance that the
eourse of local legislation should
lie interfered with as little as pos-
sible, and the power of disnllow-
ance exercised with great caution,

and only in cases where the law
and the general interests of the Do-
minion imperatively deinaads it, the
undersigned recommends that the
following course be pursued : —

" Tliat on receipt by Your Ex-
cellency of the Acts passed in any
province, they be referred to the
Minister of Justice for report,
and that he, with all convenient
speed, do report as to those Acts
which he considers free from objec-
tion of any kind, and if such report
be ajjpi'oved by Your Excellency
in Council, that such approval be
forthwith communicated to the
provincial government.

" That he makes a separate Rules to be
report, or reports, on those Acts observed in
which lie may consider— &r''rovmcial

" (1) As being altogether illegal j^gjg,
or unconstitutional ;

" (2) As illegal or unconstitu-
tional in part ;

" (3) In cases of concurrent
jurisdiction, as clashing with the
legislation of the General Parlia-
ment ;

" (4) As affecting the interests
of the Dominion generally.

"And that in such report, or
reports, he gives his reasons for his
opinions.

" That where a measure is con-
sidered only partially defective, or
where objectionable as being pre-
judicial to the general interests of
the Dominion, or as clashing with
its legislation, communication
should be had with the provincial
government with respect to such
measure, and that, in such cases,
the Act should not be disallowed,
if the general interests permit such
a course, until the local go^■ern•
ment has an opportunity of con-
sidering and discussing the objec-
tions tnken, and the local legisla-
ture.-i have also had an opportunity
of remedying the defects found to
exist." — Signed by John A. Mac-
donald.

This recommendation has been,
with one or two exceptions, acted
on. Prov. Leg., 1886, p. 1.

D 2

lifl

I !

B.N.A. ACT, s. 91 (2).— LIQUOR : BHEWERS.

(1.) The public debt and property.

(2.) The regulation of trade and commerce.^

The Brewer's
Case.

Severn v. The
Queen.

I Read with this sub-sec. 3 and
paragraph termination, the sub-
sees, post sub-sec. 29. Also see
AmericaD Const. Act, articles 1,
2 and 3, and sub-sec. 9, sec. 92.

In Severn's case, Jan. 28,
1877, 2 S. C. R. 70, a tax was
required by the 37 Vict. c. .32.
s. 24 [see Reg. v. Taylor, p. 55] of
Ontario for dealing in liquors to
be consumed in the province.
The Supreme Court held the law
to be ultra vires, on the ground
that it was in conflict with sec. 91,
8ub-.sec. 2, in that it imposed a
license duty on wholesale sales.
That case was an appeal taken into
the Supreme Court u:.der section
27, Supreme Court Act, 38 Vict.
c. 11., from a judgment of Q. B.
Ontario, overruling a demurrer of
John Severn, brewer, to a criminal
information filed against him by
Att.-Gen. of Ontario. Richards,
C J. : " I consider under the B. N.
A. Act power to regulate trade and
commerce rests exclusively with the
Supreme Court Dominion Parliament, as also the
right to raise money by the mode
of indirect taxation, except so far
as the same may be expressly gi\en
to the local legislatures. Making it
necessary to take out and pay n
license to sell by wholesale or retail
manufactured liquors, is raising
money by the indirect mode of
taxation."

Ritchie, J. [who was of opinion
with Strong, J., that the Legisla-
ture of Ontario had the power to
pass the law in question], said [p. 99
of R.] : " I cannot think it was
intended to confine the powers of
the local legislature for the raising
of a revenue for provincial purposes
to licenses of a purely municipal
character, granted, most frequently,
rather with a view to police regula-
tion than for purposes of revenue,
and which, when granted for the lat-
ter object, could hardly be s\ipposed

Act, 38 Vict.
c. 11. s. 27.

to be more than adequate for local
and municipal purposes. I think
the power given under sub-sec. 9,
sec. 92, should be construed as
intended to furnish the local
legislatures with the means of
raising a substantial reveniie for
provincial purposes from all such
licenses as at the time of con
federation were granted in the new
Dominion, either by provincial or
municipal authority. The ilcenses
named are not rjnstkm generis,
for certainly auctioneer licenses
are not ejusdem generis with
tavern licenses, nor always granted
by the same authority, for in New
Brunswick, while tavern H.ienses
were granted by the municipal
authority, auctioneer licenses were
granted by the Lieutenant-Gover-
nor; and so with respect to dis-
tillers an annual license had to be
obtained from the provincial Trea-
surer; so also formerly with re-
spect to hawkers, pedlers, and petty
chapmen, a provincial duty was
imposed, and they were required
to take a license from the Treasurer
of the province [9 & 10 Geo. 4.
c. 27.] ; and again, in New Bruns-
wick, licenses other than those of a
police or municipal (character were
granted by municipal authority as
licenses for the sale of liquors In-
wholesale, no person being allowed
to sell any liquors by wholesale
without license, which liquors the
statute declared inter alia to be
ale, porter, strong beer, or any
other fermented or intoxicating
liquor. From this brewers were
not exempt, there being no exemp-
tion in their favour. [His Lord-
ship read sec. 3 of 6 Vict. c. 35.
(New Brunswick).] Therefore 1
know the rtde noscilur a sociis
cannot apply in this case. It is
said this construction conflicts with
the power of the Dominion Govern-
ment to regulate trade and com-

B.N.A. ACT, s. 91 (2).— DIRECT TAXATION BY DOMINION. 63

merce and the raising of money by
any niorle or system of taxation.
All I can say in answer to tliat is,
so t'nr, and to far only, as tlu;
ruisiag of a revenue for provincial,
municipal, and local purposes is
concerned, the B. N. A. A<!t, in
my opinion, gives to the local
legislatures not an inconsistent, hut
a concurrent power of taxation, and
1 fail to see any nec(!ssary conflict ;
certainly no other or greater than
would necessarily arise from the
exerci.se of the pc\ver of direct
taxation and the granting of .><hop
and auctioneer licenses specially
vtsted in the local legislatures. It
cannot be tloubted, I apprehend,
that bo'h th(! local legislature,
and the Dominion Parliament may
raise j. revenue by direct taxation,
and, if so, why may not l)oth raise
a revenue by means of licenses?
There need be no more conflict
in the one case than in the other.
The granting of shop and auc-
tioneer licenses necessarily inter-
feres with trade and commerce, the
former with retail trade, the latter
with both wholesale and retail
trade; for in large business cen-
tres, auctioneers' sales on a whole-
sale scale are of daily occurrence.
Should at any time the burden
imposed by the local legislature,
under this power, in fact conflict
injuriously with the Dominion
power to regulate trade and com-
merce, or with the Dominion power
to raise money by any mode or
system of taxation, the power vested
in the Governor-General of dis-
allowing any such legislation prac-
tically affords the means by which
serious difficulty may be prevented.
But I do noi think we have any
right to suppose for a moment that
the local legislature woulil legis-
late sjive for the legitimate purpose
of raising u revenue, and not so as
to interfere unneces.?arily or in-
juriously with the legislation of the
Dominion Parliament, still less so
as to destroy the very business from
which the revenue is derived. I
think the construction I have in-

dicated of the words ' other licenses '
[see sub-sec. 9, .sec. 92] is not
only in accordance with thtf literal
interpretjition of the language, but
is consistent with the policy and
purview of the stJitute, which,
in my opinion, was to give to the
local legislatures the rights and
power, in addition to direct taxa-
tion, to rai.se a 8ub.stantial revenue
for provincial, as well as for munici-
pal, purposes, by means of licenses
such as were and might have been
granted at the time of confedera-
tion by the several provincial
governments and municipal author-
ities, and is not confined to licenses Brewers must
which are of a piu'cly municipal 'I'^Y^ ^ license
character, ami from which I do not '^.^"^ ^'^'"'-
think a brewer is any more exempt
than a shopkeeper or auctioneer.
He co>dd not .sell by wholesale in
New Brunswick at the time of
confederation without a license,
and I do not think he can do so
now in Ontario. It may be right
for me to say that it is only under
the words ' and other licenses,' and
solely in order to the raising of a
re\enue for the purposes named in
sub-sec. 9, sec. 92, that in my
opinion the local legislatures have
the right of imposing this burden or
tax on brewers." T-.sehereau
("after difficulty], Fournier, and
Henry [but see his opinion post,
sub-sec. 9, sec. 92, Att.-Gon. On-
tario V. Att.-Gen. Canada, that he
was wrong], JJ., were of opinion
the Act was ultra vires, Fournier
for the reasons that (1) because it
comes in conflict with the power of
the Federal Government to regulate
trade and commerce ; (2) because
the terms " and other licenses " in
sub-sec. 9, sec. 92, are limited by
the interpretation given to sub-
sec. 2, sec. 91. In order to con-
ciliate these two provisions the
words "other license" must be
read as if they were followed
by these words — " not incom-
patible Avith the power of regulat-
ing trade and commerce; (3) be-
cause the tax imposed was an in-
direct tux, which the local govern-

'-r'1

54 B.N.A. ACT, s. 91 (2).— RESTRICTION OF SEC. 01.

Severn v. The mont hns no right to impose ;
QuBEN. ^4j liecnusc it fomos in direct

conflict with 31 Vict. c. 8. (I)oin.
Act), relating to excise." Henry,
J. : From a review of all the ciises
cited and others, he was ohhged to
conclude that the words " and other
licenses " must he restricted r/its-
liem generis^ p. of R. 138. "Every
constituent of trade and commerce,
and the subject of indirect taxation,
is withdrawn from the consideration
of the local legislatures, even if it
should otherwise he apparently in-
cluded. The Impei'ial Act fences
in those 28 subjects [sec. 91]
wholeside and in detail, and the
local legislatures were intended to
be, and are, kept out of the inclosure,
and where authorised to deal willi
the subject of 'direct taxi'tion '
within the province, as ir. sub-
sees. 2 and 9, sec. 92, they are
commanded by the concluding
Bank of words of sub-sec. 29, sec. 91, not

ToBONTo V. to interfere by measures, for what
Lambb. they may call ' direct taxation,' or in

regard at least to ' other licenses '
or in reference to ' municipal in-
stitutions,' with the prerogati\e of
the Dominion Parliament as to the
' regulation of trade and com-
merce,' including ' customs and
excise hiws,' and 'the raising
of money by any mode or system
of taxation.' The exercise of the
power contended for by the Legis-
lature of Ontario is incompatible
with the full exercise of that of
the Dominion Parliament, and
might be used to its total destruc-
tion. Tlu> object of the Imperial
Act was clearly to give plen.'iry
powers of legislation to the Do-
minion Parliament with the excep-
tion before stated, and just as
clearly to restrict local legislation
so as to prevent any conflict with
that of the former in regard to the
subject with which it was given
power to deal." "The 'excise
Co. laws' of the Dominion must be
aFected by an additional license fee
being exacted by the local govern-
ment. The 'excise' revenue be-
longs solely to the Dominion

Citizens'

iNSCnANCE

V. Parsons,

Government, The Dominion Par-
liament having imposed a license
fee of ^b() on a brewer of fer-
mented li(|uors, might at an early
date desii'e to impose, for rcieniic,
a higher fee. It hi.s the ac-
knowledged right to do so; but
in the meantime the local legis-
lature has fully weighted the enter-
priser of brewing; and the result
becomes, therefore, a transfer from
the resources of the Dominion
revenue to the coffers of the lociil
government. AV^ho can say, then,
there is not an attempt to collect
provincial revenues from a source
clearly appertaining to the Do-
minion ?" His Lordship then said,
from a re\iew of all the cases, iip
concluded the words " and other
licenses" in sub-see. 0, .see. 92,
must be restricted ej'istlem f/entris.
[See Taylor v. 'Reg,, post , p. 55.]

Severn's case was explained in

B.VNK OF TOKONTO V. LaMBE, iu

Q. B., Quebec, 23 Jan. 1885, 29
L. C. J. 77 ; 1 Mon. Q. B. 122 ; in
P. C. Julv9, 1887, 12 App. Cas.
pp. 575, 58(); 56 L. J. P. C. 87;
57 L. T. 377 [see sub-sec. 13 of .sec.
92]. In that case the Judicial Com-
mittee decided that a pro^■ince could
impose direct taxation on commer-
cial corporations carrying on their
business in the province. Lorii
Hobhouse stiid: "Since the Severn
case was decided the question litis
been more completely sifted."
His Lordship said : " The words
' regulation of trade and commerce '
are indeed very wide, and in
Severn's ease [ibid.] it was the
view of the Supreme Court that
they operated to invaliilate the
license duty which was there in
question. But since that case was
decided the question has been
more completely sifted liefore the
Committee in Citizens' Insurance
Co. V. Parsons [in Courts below,
43 U. C. Q. B. 261 ; 4 O. A. R. 96;
4 S. C. R. 215; in P. C. Nov.
26, 1881, 7 App. Cas. pp. 96,
108; 51 L. J. P. C. 11 ; 45 L. T.
721 ; pest, sub-sec. 13], and it was

B.N.A. ACT, H. 91 (2)— "TRADE AND COMMERCE." 55

t'oiiud al)Holutely necessiiry that the
literal meauiiig of the words should
\x ri'stricted in order to afford
scope jr powers which are given
exclusively to the proviucial legis-
tures. It was there thrown out
that ihe power of regulation given
to the Parliament meant some
general or inter-provineial reguhi-
tioDS. No further attempt to de-
liiie the subject need now be made,
because their Lordships are clearly
of opinion that if they were to
hold that the power of regulation
prohiliited any provincial taxation
on the persons or tilings regulated,
so far from restricting the expres-
sions, as was found necessary in
Citizens' Insurance Co. v Parsons
[ibid.], they would be straining
them to their widest conceivable
extent."

In Citizens^' Insurance Co. v.
Parsons, the Ontario Act, 39 Vict,
e. 21.. R. S. O. c. 167. s. 8,
provided that the Insurance Co.
were not to be liable for damage
by tiro if there was an exist-
ing prior insurance, unless it
was disclosed to the Insurance
Co. This was held valid. There
existed a Dominion Parliament
Act, 38 Vict. c. 20., recpiiring all
insiu'ance companies to obtain a
license. The Insurance Co. in
question had its head office in
i\Iontreal [see for this case, " Civil
Rights," sec. 92, sub-sec. 13]. It
UKiy be noted here that in Parson's
ease, Sir Montague E. Smith, in
delivering judgment, said: "Con-
struing the words ' regulation of
trade and commerce ' by the vari-
ous aids to their interpretation
above suggested, they would in-
clude political arrangements in re-
gard to trade requiring the sanc-
tion of Parliament, regulation of
trade in matters of inter-provincial
concern, and it may be that they
would include general regulation
of trade affecting the whole Domi-
uion. Their Lordships abstain on
the present occasion from any at-
tempt to define the limits of the
authority of the Domiuion Parlia-

It is Att.-Gen.
of the Qdbdec v. Thk
Qdeen
Insuoancb Co.

ment in this direction,
enough lor the decision
present case to .say that, in then*
view, its authority to legislate for
the regulation of trade and com-
merce does not comprehend the
power to regulate by legislation
the contracts of a particular busi-
ness or trade, such as the business
of a fire insurance in a single pro-
vince, and therefore that its legis-
lative authority does not, in the
present oise, conflict or compete
with the power over property and
civil rights assigned to the legisla-
tiu'e of Ontario by sub-sec. 13,
sec. 92." Compare with that case
Att.-Gen. for Quebec r. The Queen
Insurance Co., in Q. B. Quebec,
Dec. 11, 1877, affirming Supt. Ct.,
21 L. C. J. 77 ; in P. C. July 5,
1878, 3 App. Cas. 1090 ; 38 L. T.
897. It was held that the Quebec
Act, 39 Vict. c. 7., was ultra vires.
This Quebec Act enacted that
every assurer [except marine]
should be boiuid to take out a
license. By sec. 2 the price of the
license was to be an adhesive
stiimp affixed to the policy or re-
ceipt or renewal ; in case of fire,
3 per cent., and 1 per cent, for other
assurances, on the premiums paid.

See post, p. 12(3, Severn's case
[p. 52], which was in reality an ap-
peal from Reg. v. Taylor. That
case the Supreme Court refused to
decide, inasmuch as it wa.s prior to
the institution of the Supieme
Court, 1 S. C. R. 65, 38 Vict.
(Dom.) c. 11. s. 26.

In Reg. i-. Taylor, 25 Sept. Reo. y. Taylor,
1875, Queen's Bench, App.
Side, 36 U. C. Q. B. 218, it
was held that the restriction im-
posed by the Ontario Act, 37 Vict,
c. 32., on brewers not to sell by
retail as defined by that Act was
not tdtra vires, it being a men^ .
repetition and renewal of the legis-
lation which was in force in On-
tario before and at the time of the
Confederation. Sees. 4 and 21 of
the statute in question showed
what wholesale was. Sees. 24, 26,

lr:im

:M'

66 B.N.A. ACT, s. 91 (2) —"EXCLUSIVE AUTHORITY."

I Hi li

Rwi. f . Tavlob. prohibit the sale of liquor without
a license first ol)tiiined under the
Act, which covers the sale by ii
brewer of his own uiiuiufacture.
The fee for the license, sec. 22,
was $50 for sellinj? by wholesale.
Sec. 35 imposes the penalties for
.selling without such license. Sec.
53, burden of proving license rests
on the party prosecuted. The
defendant was a l)rewer of St.
Catherine's, licen.sed by the Domi-
nion Government for the manufac-
ture of spirituous and other liquors,
and sold by wholesale beer for con-
sumption within the province of
Ontario, without first obtaining a
licen.se as required by the On-
tario Act, J 874, 37 Vict. e. 32,
an Act expressly imposing thi
license on a brewer under provin-
cial authority. The clause said to
be contravened was see. 24 : " No
person shall sell by wholesale or
retail any spirituous, fermented, or
other manufactured liquors within
the province of Ontario, without
having first obtained a license un-
der this Act authorizing him so to
do : provided that this section shall
not apply to sales under legal pro-
cess, &c." Sec. 21 included brewers
and distillers. Sec. 22 for license
by wholesale a duty of $50. All
duties under this section are for
provincial revenue. Sec. 4, a
license by wholesale was a license
for selling by wholesale only in
places other than inns, &c., in
quantities five gallons in each ca.sk,
and where bottled not less than one
dozen bottles, of at least three half-
pints each, at any one time [see
sec. 12, sub-sec. 3, Temperance
Act, 1864]. Sec. 35 subjects any
person selling such liquors without
a license for first offence to a
penalty of not less than 320 ; for
the second offence imprisonment in
the county gaol with hard labour for
not exceeding three months ; for the
third offence to imprisonment with
hard labour for not less than one or
more than three months.

Sept. 25, 1875, Draper, C. J. :
" The power to make laws which

is conferred by the first part of tlii.s
section [s. 91] on Her Majesty mul
the Senate and tlx' House of Com.
mons for the peace, order, and ijdoil
government of Canada is (substi-
tuting ' welfai-e ' for ' order ') ii re-
petition of the language u.sed in the
12 sec. of \^ Geo. 3. c. H3., mid
again in sees. 1 and 2 of 31 Geo. .'{
c. 31. But for greater certainty—
not to restrict what had just been
conferred — it is declared that (not-
withstanding this Act) the c.irlii-
sive legislative authority of tlic
Parliament of Canada extends to
all matters coming within tlic
clas.ses of enumerated siibietts
thereinafter set forth. Exclusivf
of what ? Surely not of the siili-
ordinate provincial legislatuies,
who.so I jwers had yet to be con-
ferred, and who would have no
al)solute power until they were in
.some form defined and granted.
Would not this declaration .«eeui
rather intended as a more definite
or extended renunciation on tin
part of the Parliament of Greiii
Britain of its powers over the iii-
ternal affairs of the new Dominion
than was contained in the Imperinl
statute, 18 Geo. 3. c. 12., and tiif
28 & 29 Vict. c. 63. ss. 3, 1, 5.'
In somewhat different terms, by
sec. 92 the legislature of eiieli
province has powers conferred npon
it to ' exclusively make law.s in
relation to matters coming within
the cla.sses of subjects . . . oim-
merated ' in that section. Now it
appears to me that sec. 91 does
mention some classes of subjects as
belonging to the 'exchi.sive legis-
lative authority ' of tlie Parliiinunt
of the Dominion, which in part at
knst form part of matters coming
within some class or classes of .snli-
jects enumerated in sec. 92. For
example, the second class of subjects
mentioned in sec. 91 is ' the legii-
lation of trade and commerce ' (two
words which, in their present loca-
tion, appear to me to be almost, it
not entirely, synonymous) ; and
next, * the raising of money by fl»y
mode or system of taxation ; while

BN.A. ACT, H. 91 (2).— MEANING OF "OTHER LICENSES." 67

in !s(i . 02 w«' fiiul in tlic ciniincni-
tion oi clasMt's of Miilijpct.s williiii
the ' exclusive powcis of proviiiuial
legisliitiircs,' ' diiwt taxation
within th(? jji-ovinoc in oi'('t'r to the
riiisin}; o^' a rfvi'niic for provincial
IMirposi'H ' ; ant! * slioj), saloon,
tavern, auctioneiT, and other
iieenses, in order to tlie raisini; of
a revenue for ^ rovineial, local, or
nmiiicipal purposes,' and ' pro-
perly »nd civil li/^hts in the jjro-
viuce.' Now it will, in my opinion,
be (litllcult to maintain that the
regulation of trade and conunercc
even alone, and a mnltu fortiori in
conjunction with a power to raise
money by any mode or system of
taxation, if cxclusivclij ^este(l in
the Dominion, arc not at variance
with pow(!rs in the provincial legis-
latures excltisively to make laws
respecting shop, saloon, tavern,
iiuctioneer, and other licenses, in
order to raise a revenue for provin-
cial and other piuposes, and to re-
sort to direct taxation for |)rovincial
purposes. As to direct taxation,
while there is some difl'erence of
expression in defining it, the dif-
IVience appears to me to be more
verbal than sidistantial. [His
Lordship citetl Encyc. Brit., title
"Taxation,"] In "England the
rates of duties on licenses are in-
cluded under the head ' Excise' I
entertain no doubt that a duty to
be paid for a license to brew or to
sell beer by wholcsdeis an indirect
tax. But it is further contended
that the words ' shop, stdoon,
tavern, auctioneer, and other
licenses,' do not include a license
to a brewer to brew beer, or to sell
the .sjinu^ by wholesale, and there-
fore the Ontario Legislature could
not lawfully pass an Act to compel
a brewer to take out such a license ;
that the words ' other license ' are
limited by the preceding words, and
that the maxim noscitur a sociis
must be applied. This objection
i' founded on the rule that 'a
general word following specific
words must be tuken to mean some-
thing of the same kind ' ; or, as is

elsewhere stated, ' when u word of Rko.
wide signification follows others lesa
wide, it must be interpreted as
having a nu>aning bringing it with-
in the same class as those others.'
Head i\ Ingram, 3 E, & B.
l». 001. 'J'herefore 'other licenses'
means licenses of the same charac-
ter as those just previously men-
tioned, namely, shop, tavern, and
auctioneer, which are licen.ses to
carry on a particidar business, or
to exerci.se a particular vocation ;
and it is urged that the licen.ses
thus spccificfl are commonly men-
tioned with, and seem to have an
attinuy to, tho.se licenses which are
chiefly contained in the Municipal
Act, as for example, licenses on
billiard tables, ordinary houses
where fruit, &c., are .sold, huck-
sters and pedlers, &c. The aflinity
in some of these cases seems to me
rather remote, and the objections
appear to me to be answered by the
consideration of the object, ' raising
a revenue for provincial as well
as for local or municipal pur-
poses.' With the sincerest respect
for the learned judge [Wilson,
J.] who has put forward this
objection, I cannot yield to it. I
think we should not look out of
the Imperial Act for the socii
whose character is to aflix a mean-
ing on ' other licenses ' ; and grant-
ing that the four named occupa-
tions have got into low company in
the Ontario Municipal Act, they
are lifted out of it in sec. 92. To
be .serious, I tlo not find in the
objection, or the illustration of it,
any suflicient ground for holding
that the license to a brewer, as
provided for in the Ontario Act, is
not within the words ' other
licenses,' as u.sed in the Imperial
Act. It is quite true that the
business of a brewer has been gene-
rally, perhaps always, dealt with as
a nuitter of excise, but I do not see
the inconvenience, though there is
incongruity between the two pro-
-visions, nor that there will any
difficulty arise in the brewer's busi-
ness, or his relations with the

. Taylok.

L.^ •

i' i

III

58 B.N.A. ACT, H. 01 (2),— LICENSES BY DOM. AND PROVS.

'Ml

fill

I!
11)

Bbo. V. Tavi.oh. oHiccrH ol' cxfiHc, by his bei.i}^ re-
<iuii'(>(l tu l4ikf out lliiH pro\iiieiul
license. VV^e must, liow(ner, eon-
Hider what is the eflVct of the ujjpii-
I'ent iiitei'loreiife or iiifoiisisteney
between sees. J)l iinil !)'J. [His
Lordship eited Dvviirris, j). 513]
I may liere piopeily apply the lan-
}^uii;j;e ol' UesI, ('..I., in Churehill
r. Ci'ease, 5 Bing., p. IHl), and say
I slionld have thought the language
oi' sec. t)l, ' iiw ny Illation of trade
ami coiinntrcc,' ' eonelusive, il' there
had been no eonilicting intention
to be coUeeti^il IVom the Act ; but
the i'ul(! is that where a general in-
tention is exi)resse(l, and tin; Act
expresses also a particulai' intention
incompatible with the general inten
tion, the particular intention is to
be considered in the nature of an
exception.' This appears to nie to
.settle any cpiestion as to inconsis-
tency between tlie two sections, and
to leave the whole question to turn
upon the effect of the words ' other
licensee.' Upon this I ha\ e already
expressed my opinion. Assuming
this conclusion to be L-orrect in l)oth
respects, there is no ground for
holiliug the Act of Ontario, 37
Vict. c. 32., to be ultra vires , and
whether it touches several or only
one of the classes of subjects euu-
mernted in sec. 91, it does not go
beyond the exceptions contained in
sec. 92, and if so, there should bt
judguieut against defendant on the
demurrer. And this makes it im-
necessary to consider antl observe
upon the American cases that were
referred to in the judgment deli-
vered in the Court bplow [Brown
V. State Maryland, 12 S. C. R.
U. S. (12 Wheat.), 419; the
License Cases, 46 S. C. R. U. S.
(5 How.), 504— Prohibition of
sales, except in large quantities.
Held did not interfere with power
of Congress to regulate commerce
because acted wholly on the traffic
within the States borders. Almy
V. State California, 65 S. C. R.
U. S. (24 How.), 169— Require-
ment of a stamp on bills of lading
on the export of gold was held to

1m' a regulation of ti'ade a Stat«
could not legislate onj, because tlicy
do not touch thv points on which I
rest my decision as lu'ing sustniiicd
by English authority. 1 cauiiot
forbear adding that 1 see no inevit-
able ineon\enience to arise froui
each government possessing tlu^
power of granting a license in tiiis
matter. It might certainly be said
that tilt? Legislature of Ontario
might make an injui'ious use of it,
as by inq)osing a tax for the license
unreasonable in amount, wliicli
would prevent the exercise of the
trade ; but I cainiot believe that the
most /ealou.s advocate of prohibition
as to spirituous or fei'mented licpiors
would prevail on the As.sembly to
pass such a law, and if it hapixMiwi
otherwise, the power of disallow-
ance is ample to prevent such an
interference' with the policy of
the Dominion Government. This
power would pre\ent any mischief
from hasty or unwise legislation,
which could not well be justified tis
actuated by a tiesire to ' raise a
revenue for either provincial, lociii,
or municipal purposes.' "

Queen's Bench reversed, and
judgment on demurrer entered for
he Crown.

Strong, J., concurred. " I only
desire to add that I am of opinion
that a license which would amount
to a prohibition would be an inidne
interference with the exclusive
powers of the Dominion as to trade
and commerce, as has been in effect
lately decided by the S. C. of New
Brunswick." [See next case.]

In Reg. v. Justices of King's
County, February 1875, Kit-
chie, C.J., 2 Pugs. pp. 535-539:
"This was an application for a
mandamus to the justices to com-
pel them to grant a tavern license
to one M. McManus. Application
had been made by McManus to the
sessions for a license in February
1874, and the usual fee tendered,
The sessions refused to grant a
license, alleging as a reason that
they did not intend to grant any

B.N.A. ACT,s.91. (2)— PROHIBN. OF ALL LIQ. TRAFFIC. 59

license to sell spirituous licpiors for
lliiil vt'iir. McMimiis was sliortly
niter lined I'or selliii}^ witiioiit ii
I'a'iise. Ill siiowiiij^ cause aj^ainst
ihciipiilieation, it was objected (1)
lliiil tlie power {^ivi'ii to llie i'arlia-
incnt ol' Canada by tlie 15. N. A.
Ad, 1S07, see. iil, sub-see. 2,
iiiwint tratle and eonuuereu witii
I'orci'n eoiintries, and tiiat liie
iiuwci' to make laws respecting
lavciii liecnsi's Iteion^ed e.\clusi\ely
to tlie |)rovineial lej^islalures by sec.
\Y1\ (li) tliat l)y the Act of A.s.seud)ly,
,'i(i Vict. c. 10. H. 2, it wa.s entirely
ill the (li.scretiou t>f sessions wlietiier
liiiv l^iantcd licenses or not; that
it wasan arbitrary discretion, wliicii
could not be cpicstioned. 'i'o the
Dciiiiien of t.'ana<la is given the
|ioW-'r to legislate on tlie ' regidution
of trailc and conuneree,' and tlie
power of ' raising money by any
mode or system of taxation.' The
ivgiilation of trade and commerce
must involve full power over the
tuatttr to be regulated, antl must
iieces.sai ily exclude the interference
of all other bodies that would at-
tcmpt to intermeddle with the
same thing. The power thus given
to the Dominion Parliament is
geueral, without limitjitiou or re-
striction, and therefore must in-
clude trallie in articles of merelmu-
dise, not only in connection with
foreign countries, but also that
which is internal between difEe-
leiit provinces of the Dominion
as well iis that which is carried on
witiiiii the limits of an individual
province. As a matter of trade
and couimerce, the right to sell is
inseparably connected with the law
permitting importation. If, then,
the Doininion Parliament authorize
the importation of any article of
merchandise into the Dominion,
and places no restriction on its
being dealt with in the due course
of trade and commerce, or on its
jconsumption, but exacts and re-
ceives duties thereon on such im-
portation, it would be in direct
ioatlict with such legislation, and
"ith such right to raise money by

any mode or Hystt'm of taxation if Rko. r. ,Tos-
the local legislature of tile provincr, ticks okKinu's
into which the article w.is so legally '^"""tv.
imported, and on wliich a r(;venui!
was sought to be raised, could so
legislate as to prohibit its being
bought and sold and to prevent
tra(ie or truHlc therein, and thus
• iestroy its commercial value and
with it all trade and commerce in
the article so proiiibited, and thus
render it practically valueless as an
article of commerce on which a
revenue could ije levied. Again,
how can the local h-gislaturc pro-
hibit or authorize the sessions to
prohibit (by arbitrarily refusing to
grant any licenses) the sale of
spirituous li(piorsof all kinds with-
out coming into direct conflict with
the Doininion Legislature on the
subject of Inland llevenue, involv-
ing the riglitof manufacturing and
distilling, or making of spirits, &c.,
as regulated by the Act, 31 Vict,
c. 8., and the sn'.sequent Acts in
amendnu^nt thereoi, and the excise
duties leviable thereby, and the
license,- authorized to be granted
ther»!under ? Cases from the United
StatL 5 courts were cited as bearing
on this question ; but there is a
very clear distinction between the
powers of Congress and the powers
of the Dominion Parliament. In
the United States, Congress has
not the same full power of regu-
hiting trade and commerce that
belongs to the Dominion Parlia-
ment. The powers of Congress, as
we understand it, is conHned to
' regulating commerce with foreign
nations and among the several
States,' giving no right to interfere
with the internal commerce of an
individual State that it does not
extend to that commerce which was
completely internal, carried on
within the particular State, and
which did not extend to, or affect,
other States, but is restricted to
that commerce which concerns
more States than one, reserving
the completely internal commerce
of a State for the State itself, and,
therefore. State license laws have

^ 1

60 B.N.A. ACT, s. 91 (2).— CONTRAST DOMINION AND U.S.

Reo. v. Jus- been held constitutional and valid.
TicEs OF Kino's But even there, as we understand
County. jj,^ ^.^^^^,^^ j^ j,,,^ )j^,^.„ ]^^,\^i ji,^t ^\^^.

.sale of imported liquors by the i;:\-
porter in the original casks would
seem not to be affected, but when
the importer parts with tiie goods
imported, and changes the!- con-
dition, his rights, and all rights
respecting the sale claimed under
the laws of the United States, aie
gone ; that is, so soon as they be-
come mixed with, or incorporated
into, the general mass of the pro-
perty of the State, they become
subject and liable to State legisla-
tion. Under the B. N. A Act,
18G7, the local legislatures have no
powers except those expressly gi\ en
to them, and with res})ect to the
granting of licenses affecting trade
they are expressly confined to 'shop,
saloon, tavern, auctioneer, and other
licenses, in order to the raisiny of
a revenue for provincial, local, or
municipal purposes,' a provision
under which a reveiuie may be
derived from the sale and traffic,
but which the prohibition of the
sale or traffic would entirely des-
troy, and which would be in direct
antagonisnj with the privilege
therel)y conceded. We by no
means wish to be understood that
the local legislatures have not the
power of making such regulations
for the government of saloons,
licensed taverns, &c., and the sale
of spirituous liquors in public
places, as would tend to the preser-
vation of good order, and pre-
venting of disorderly conduct,
rioting, or breaches of the peace.
In such cases, and possibly others
of a similar character, the regula-
tions would have nothing to do with
trade or commerce, but with good
order and local government, mat-
ters of municipal police and not of
commerce, and which municipal
institutions are peculiarly com-
petent to manage and regulate ;
but if, outside of this, Hnd beyond
the granting of licenses before re-
ferred to, in order to raise a revenue
for the purposes mentioned, the

legislature undertakes, directly or
indirectly, to prohibit the manufac-
ture or sale, or limit the use of any
article of trade or comniorce,
whether it be spirituous liquors,
flour, or other articles of merchan-
dise, so as actually and absolutely
to interfere with the traffic in such
articles, and thereby prevent tradi'
and commerce being carried on
wit)) respect to them, we are clearly
of opinion they assume to cxorciso
a leg'slative power which pertains
exclusively to the Parliament of
Canada " [but see Dominion r.
Four Provinces, the Liquor Li-
cense Acts, 1883-4, before P. C.
in 1885; post. Note, sec. 92, suli-
s«'c. 9], "and in our opinion the
Act of the local legislature [34 Vict.
c. 0.] declaring that ' no license
for the sale of spirituous liquors
shall be granted or issued within
any parish or numicipality in tiie
province, when a majority of tiie
ratepayers resident in such parish
or municipality shall petition the
sessions or municipal couucil
against issuing any license within
such parish or municipality,' is ultra
vires the local legislature of this
province." — Rule absolute for man-
damus.

The case of the City of Frederic-
ton was a case upon the same Act,
The Canada Temperance Act, 1878,
as in Russell v. Reg. [see below],
and was in Ct. N. B. 1879 [Allen,
C.J. , Weldon , Fisher,Wetmore, J J.,
and Palmer, J., dissenting], 3 8. C
N. B. ? j9, and in S. Ct. of Canada
April 13, 1880, 3 S. C. R. 505.
In S. Ct. Canada it was held, re\('r-
sing, that under sub-sec. 2, sec. 91,
the Parliament of Canada alone has
the power of prohibiting the traic
in intoxicating liquors in the Do-
minion or any part of it, and the
Court has no right whatever to
enquire what motive induced Par-
liament to exercise its powers.
Ritchie, C.J. : " Much has been
said as to the analogy of the Do-
minion Parliament and local legis-
latures with the Congress of the
Federal Government and the Stat«

BNA, ACT, 8. 91 (2).— DOM. PROHIBITING IMPORTS. 61

legislatures of the United States.
But the constitution of the United
States and the constitution of the
States as regards the powers which
each may exercise are so different
from the relative powers of the
Dominion Parliament and the pro-
vincial legislatures, that the cases
to be found in the American books
with regard to tlie State legis-
latures in regard to prohibiting
the sale of intoxicating liquors
afford no guide whatever in the
determination of the powers of the
local legislatures and the Dominion
of Canada. The Government of
the United States is one of enu-
merated powers, and the govern-
ments of the States possess all the
fieneral powers of legislation. Here
we have the exact opposite. The
powers of the provincial govern-
ments are enumerated, and the
Dominion Government possesses
the general powers of legislation.
Therefore we are told by Mr.
Cooley, Cons. Lim. 173, that ' when
a law of Congress is assailed as
void we look in the National Con-
stitution to see if the grant of
speeitied powers is broad enough
to embrace it, but when a State
law is attacked on the same ground,
it is presumably valid in any case,
and this presumption is a con-
chisive one, unless in the Constitu-
tion of the United States, or of the
State, we are able to discover that
it is prohibited. We look in the
Constitution of tlie United States
for grants of legisletive power, but
in tlic Constitution of the State to
uM'crtain if any limitations have
been imposed upon the complete
power with which the legislative
ili'partment of the Siate was vested
in its creation. Congress can pass
no laws but suc)i as the Constitution
autiiorizes, either expressly or by
I dear implication, while the State
legislature has jurisdiction of all
suhjeets in which its legislature is
not prohibited.'

" Witii us the government of the
hirovinces is one of enumerated
powers, which are specified in the

B. N. A. Act, and in this respect City op
differs from the Constitution ol> the FKEntiiicTON r.
Dominion Parliament, which, as ^"*' hdeen.
has been stated, is authorized ' to
make laws for the peace, order, and
good government of Canada in re-
lation to all matters not coming
within the classes of subjects by
the Act assigned exclusively to the
legislatures of the provinces ' ; and
that ' any matter coming within
any of the classes of subjects
enumerated shall not l)e deemed to
come within the class of matters
of a local or private nature com-
prised in the enumeration of the
classes of subjects assigned ex-
clusively to the legislatures of the
provinces.' Therefore 'the regu-
lation of trade and commerce '
being one of the classes of sub-
jects enumerated in .sec. 91, is not
to be deemed to come within any
of the classes of a local or private
nature assigned to the legislatures
of the provinces. To my mind it
seems very clear that the general
jurisdiction or sovereignty which
is thus conferred emphatically
negatives the idea that there is not
within the Dominion Legislature
power or authority to deal with the
question of prohibition in respect
to the sale or traffic in intoxicating
liquors or any other article of trade
or commerce. It is said a power
to regulate does not include a
power to prohibit. Apart from the
general legislative power which I
think belongs to the Dominion
Parliament, I do not entertain the
.slightest doubt that the power to
prohibit is within the power to
regulate. It would be strange in-
deed that, having the .sole legis-
lative power over trade and com-
merce, the Dominion Parlian-ent
coid<l not prohil)it tlie importation
or exportation of any article of
trade or commerce, or, having that
power, could not prohibit the sale
and trafiic if they deemed such prohi-
bition conducive, to the peace, order,
and good government of Canada.
There seems to be no doubt on
this point in the United States.

B.N.A. ACT, s. 91 (2).— LIQUOR LAWS.

Russell v.
The Queen.

Story, Con. U. S., sec. 1076, on the
Constitution of the Ur"te(l St.ates,
with reference to the regnlntion of
foreifjn connnerce, which belonj^s to
tlie National Ooverninent (as the
rewnlation of both foreign and in-
ternal trade and commerce does lo
the Dominion Government) .says :
' The commercial system of the
United States has also been em-
ployed for the purpose of revenue ;
sometimes for the purpose of pro-
hibition, sometimes for the piu'pose
of retaliation and commercial reci-
procity ; sometimes to lay embar-
goes ; sometimes to encourage
domestic navigation 'in<l the ship-
ping and mercantile interests by
bounties, bv discriniinatinf; duties
and by special prefereiu'cs and
privileges, and sometimes to regu-
late intercourse with a view to
mere political objects, sucli as to
repel aggressions, increase the pres-
sure of war, or vindicate tiie riglits
of neutral sovereignty.' So in the
case of the United States v. Halii-
day, 45 S. C. U. S. (3 Wall.) 107,
in reference to the rights of Con-
gress under its power to regulate
commerce with the Indian tribes,
and with the iiulividr.al members of
such tribes, the Supreme Court
of the United States held that that
power extended to the regulation
of commerce with the Indian tribes,
though thetratfic and the Indian
with whom it was carried on were
wholly within the territorial limit
of the St-'te. The Act made it
penal to sell spirituous liquors to an
Indian under charcre of an Indian

agent, although it was soh' outside
an Indian reserve and within the
limits of a State. The Court held
the Act constitutional and based
upon the power of Congress
to regulate commerce with tlie
Indians."

The provincial legislatures have
full power under the class of sub-
sees, in sec, 92 to delegate to Com-
missioners to make regulations for
the retail sale of liquor, and to pre-
vent the playing of any game in
taverns during prohibited hours,

and to punish for any infraction of
their rules ; and the Commis-
sioners can make rules and desig.
nate penalties, including imprison-
ment with hard labour, if tlieir
fines are not paid or cannot be
paid through insufficient distress.
See Ru,sseli v. The Queen, Su-
preme Court of New Brunswick,
1881 ; in P. C. June 23, 1882,
7 App. Cas. 829 ; 51 L. J. P. C.
77 ; 46 L. T. 889. This case fol-
lowed the case of The City of
Fredericton, 3 S. C. U. 505 ;" and
itself was followed by Hodge r.
The Queen, in Ct. App., Ontario,
June 30, 1882, 7 O. A. R. 247
[Spragge, C.J., Burton, Patterson,
and Morrison J J. A.] ; in P. C.
Dec. 15, 1883, 9 App, Ca.s. 117;
53 L. J. P. C. 1 ; 50 L. T. aoi.

In Russell's case the question
was whether it was competent in
the Dominion Parliament under
its general powers to make laws
for the peace, order, and good go-
vernment, of the Dominion, to jja^s
the Canadian Temperance .\(t,
1878, which was intended to lie
applicable to the several provinces
of the Dominion, or to such parts
of the provinces as shouUl locally
ado|)t it. It was not doubted thai
the Dominion Parliament had . .leh
authority under sec. 91, unless tln'
subject ftdl within some one or
more of the classes of subjcels
which by sec. 92 were assigned
exclusively to the legislatures of
the provinces. It was contended it
came under sub-sec. 13 of sec. fl'i.
Sir Montague Smith, who de-
livered the judgment, said (7 App
Cas, 839): " Law.« of this mU\w
(such as make it a criminal offciuv
lO .set fire to a house, to overwork
a horse, or exposing diseased
cattle), designed for the proniotioi.
of public order, safety, or niornls,
and which subject those who con-
travene them to criminal procedure
and punishment, belong to the sub-
ject of public wrongs rather tiian
to that of civil rights. They are
of a nature which fall within the
general anthority of Parliament 10

B.N.A. ACT, 8. 91.— CHINESE EXCLUSION.

■ vis

make laws for the order and good
government of Canada, and have
direct relation to criminal law."

" The true nature and character
of the legislation in the particular
instanee under discus»ion must al-
ways be determined, in order to
ascertain the class of subjects to
which it really belongs. In the
prcser.t case it appears to their
Lordships, for the reison already
given, that the matter of the Act
in question does not properly be-
loiir>; to the class of subjects, ' Pro-
perty and Civil Rights,' within the
meaning of sub-sec. 13. Their
Lordships having come to the con-
clusion that the Act in qnestion
does not fall within any of the
classes of subjects assigned ex-
clusively to the provincial legis-
lature, it becomes uiuiecessjiry to
disctiss the further question whether
its provisions also fell within any
of the classes of subjects cnnme
rated in sec. 91. In abstaining
from this discussion, they must not
be understood as intimating any
dissent from the opinion of the
Cliicf Justice of the Supreme
Court of Canada and the other
judges, who held that the Act, as
a general regidation of the traffic
in intoxicating liquors throughout
the Dominion, fell within the class
of subjects. ' The Regulation of
Trade and Connncrce ' enumerated
in tliat section, and wa.s, on that
giound, a valid exercise of the
legislative power of the Parliament
of Canada." Appeal dismissed.
So the (piestion whether it came
under the sub-sec. 2 of sec.
01 was left undecided. Sec dis-
i cussion in Donnnion v. Four Pro-
(vmccs, the Dominion Liquor
Licence Acts, 1HH3-4. [See sub-
jsec. t), see. 92. j

In Hodge v. Tim Qu&en, in the
[Court of Appeal, Ontario, 7 O. A.

R. 217, Dec. U, 1883 ; 9 App. Cas.

117; 5! L.J. P. C. 1; 50L. T.
jSOl, where the Ontario Legisla-
Iture passed an Act, the Liquor
"iccn.se Act of 1877, Revised

Statutes, c. 181, confined in its
operation to municipalities in
the province of Ontario, by which
the legislature appointed license
commissioners to meet in each
municipality, and empowered them
to pass, uiitler the name of reso-
lutions, bye-laws or rules to define
the conditions and qualifications re-
quisite for obtaining tavern or shop
licenses for sale by retail of spiri-
tuous liquors within the muni-
cipality, for limiting the nundjer
of licen.ses, and to impose penalties
for infraction of their resolutions,
it was held these were matters of a
mere local nature in the province,
and to be similar to powers then
belonging to municipal institutions
under the previous exi.sting law
passed by the local parliament, and
did not interfeie with the general
regulation of " Trade and Com-
merce " which belongs to the Do-
minion Parliament, or with the
provisions of the Dominion Tem-
perance Act, 1878.

Biitisli Columbia had passed in
1884 a bill to restrict the immigra-
tion of Chinese, and the fine in-
flicted on one Wing Chong by the
magisti-ate was qua.shed on the
issue of a writ of certiorari by
Crease, J. Her Majesty's Privy
Council gave special leave to ap-
peal, but the appeal was eventually
withdrawn. See U. S. Law, Liii-
Sing i\ Washburn, 20 Cal. 531.
On the.se Chinese exclusion bills
the Minister of Justice (A. Camp-
bell) for the Dominion reported
that they were objectionable as an
infringement on the above sub-
section. He cited 2 Story's Com.,
sec. 1061, "Commerce undoubt-
edly is traffic, but it is something
more. It is intercourse. It de-
scribes the commercial intercourse
between nations, and parts of
nations, in all its branches ; and is
regulated by prescribed rules for
carrying on that intercourse." Sec.
1064, " It may, therefore, be safely
affirmed that the terms of the Con-
stitution have at all times been
iinderstood to include a power over

HODOB V.

Queen.

TlIK

■■'■ m

Chine.se Case
of Wing Chong.

It :

64 B.N.A. ACT, s. 91. -DOM. ACT ULTRA VIRES.

HoooB V. Thh navigation, as well as trade ; over
Queen. intercourse, as well as traffic, and

that, in the practice of other coun-
tries, and especially in our own,
there has been no diversity of
judgment or opinion. During our
whole colonial history, this was
acted upon by the liritish Par-
liament MS an uncoutestable doc-
trine. That Government regu-
lated not only oiir traffic with
foreign nations, but our navigation
and intercourse as unquestioned
functions of the power to regulate
commerce." Sec. 1065, "This
power of the Constitution extends
to corimerco with foreign nations,
and among the several States, and
with the Indian tribes. In regard
to foreign nations, it is univer-sally
admitted that the words compre-
hend every species of commercial
intercourse. No sort of trade or
intercourse can be carried on be-
tween this country and another to
which rhey do not extend. Com-
merce as used in the Constitution
is a unit every part of which is
indicated by the terra." Pas-
senger cases, 46 S. C. U. S. (7
How, 283). The Canadian Min-
ister of .Justice, considering the
Act an interference with the
powers of Parliament to regulate
trade and commerce, recommended
their disallowance. During 18Ho
the Parliament of Canada passed
an Act restricting and regulating
the Chinese immigration into
Canada, 48 & 49 Vict. c. 7. See
Prov. Leg. 1887, 286.
TiiEGovEnNOR- Following Hodge i'. The Queen
GENER.ir. i'. came the petition of the Governor-
The I'ouii General of Canada on the Liquor

P110VINCE.S. License Acts of 1883 and 1884,
the case being a reference to the
Privy Council, heard 11 and 12
Nov. 1885, to determine whether
or not the Liquor Licensing Act
of 1883, and an Act of 1884
amending that Act, were intra
vires the powers of the Doir'nion
Parliament. The Dominion had
passed in 1878 the Canada Tem-
perance Act, which in Russell v.
The Queen was decided as valid.

Following upon that the Acts of
1883 and 1884 were passed, but
suspended in their operation until
it should be determined by the
Supreme Court whether they were
valid. Under 47 Vict. (Dom.) c.
32. s. 2(5, the Liquor License Acts,
1883 and 1884, were referred by
the Governor-General in Council
to the Supreme Court, to answer
the questions whether the Acts
were in whole or in part withiu
the legislative authority of the
]*arliament of Canada ; and, if in
part, what parts are within sucli
legislative authority. The judges'
opinion was that the Acts referred
to are, and each of them is, ultra
vires of the legislative authority
of the Pai-liament of Canada, ex-
cept in so far as the said Acts
respectively purport to legislate
respecting those licenses mentioned
in sec. 7 of the said "Liquor
Iiicense Act, 1883," which are
there denominated ves.sel licenses
and wholesale licenses, and except
also in so far as the said Acts
respectively relate to the carrying
into effect of the provisions of
"The Canada Temperance Act,
1878," Henry, .J., being of opinion
the said Acts were nltra vires in
whole. Dig. S. C. R. 509 ; (5 Can.
Gaz. 152, 265. See arguinent
given in note, [). 144, the result being
the Privy Council reported the
whole Act ultra vires, 12 Dee.
1885. In his argument in that
case Sir Farrer Herschell said
the pro\incial Act in question in
Citizens' Insurance Co. v. Parsons
was held not ultra vires because
it was not a matter relating
to trade and commerce, beciiuse
certain implied conditions in tiiiit
particular province relating to
the property in that province
was a m. tter dealing with civil
'-•ights in that province, and was
not a matter overborne by the
provision as to the regulation ot
trade and commerce. That what-
ever limitation was to be p>it upon
" regulation of trade and commerce"
you ought not to limit it so as to

B.?f.A. ACT, s. 91 (2).— BANKING FACILITIES.

excImJe from the power of the
Dominion Parliament any law re-
lating io trade and coninierce which
the Uominion considered nucesstiiy
for the "peace, order, and good
(Tovernnient of the country." It
was unfortunate, hut the judges in
Citizens' lustu'nnce Co. v. Parsons,
wiien (ieiiling with the words " re-
I'liliition of trade and commerce,"
only said, " It iiiai/ be they would
incinde regulations of trade affect-
iiiir the whole Dominion " ; there-
fore what was of very considerable
iiuportanee was left undecided.

In Merchants' Bank of Can-
ada r. Smith, Jan. 16, IHH3, 8
S. ('. 11. 512, held that the Domi-
nion Act, 35 Vict. e. 5., which en-
iipteil that hanks may takecertainn;-
eeipts as collateral security for pay-
ment of any debt which may be-
come due to the hank under credit
iipened hy the bank for the holder
of such receipts, was infra rircs
of the Dominion, as coming under
liiinking and facilitating commerce,
I iind (lid not constitute an inter-
ferenee with the functions of the
local legislature inider sub-sec. 13,
i sec. 92, " property and civil rights
in the province."

By the New Brunswick Act,
1 50 Vict. c. 4. ss. 141, 144, provision
I was made for the appointment and
payment of inspectors whose special
I duty it was io search out and prose-
Icute all offenders against the Can-
pin Temperance Act, 1H78.

In e.r parte Whai.en, Tuck, J.,

iSIay 9, 1891, 30 S. C. N. B. 580,

Ithe argument was, that the power

Ito pass the Canada Temperance

lAct, 1878, rested alone with the

JPiirliament of Canada, as that Act

laffects trade and commerce, and

Itiiat the Legislature of New Bruns-

jwiek had no power to puss an Act

pliereby the people may be taxed

|to carry into effect some of the

provisions of a statute which is

intra vires of the Dominion Par-

UHment only. In other words,

ptiflt to this Parliament is given

m power to legislate exclusively

Ttn "the regulation of trade and

S 2340.

commerce," and the " raising of *-^' /""'«
money by any mode or system of ''"'^'''^•
taxation," and that legislation
which authorizes the appointment
and paym(>nt of inspectors is in
conflict with the exclusive rights
of the Parliament of Canada, be-
cause such legislation has relation to,
and affects " trade and commerc*;."
"The authorities who administer
justice in the different provinces of
Canada are charged to carry into
effect the provisions of the Canaihi
Temperance Act. Therearefinesand
imprisonment for violation of the
Act, and in that respect it is part
of the criminal co(le of Canada.
Police magistrates and police con-
stables, appointed and paid by the
local authorities, administer this
law as they do the other criminal
law of Canada ; and no one for a
moment supposes that local legis-
latures acted beyond their powers
when they authorized the appoint-
ment and payment of such officers.
This Liquor License Act has been
attacked l)efore, notablv in Danaher
r. Peters, 14 June 1889, 27 N. B.
Rep. 554; 17 S. C. B. 44, as
being beyond the jurisdiction of
the local legislature ; but both this
Court and the Supreme Court of
Canada on appeal liav(> affirmed
the right of the Legislature to pass
50 Vict. c. 4., not on thi? point
now under consich'ration, but upon
otheis where it seems much more
open to atta(!k. It seems to me
that the only object of this Legis
lature is to carry into effect and
ensure the enforcement of the
Canada Tempeiance Act. For
this purpose inspectors are to be
appointed and paid." His Lord-
ship continued that it required
a good deal of straining to con-
strue that as an interference with
Canada's exclrsive right to legis-
late upon "tratle and commerce."
And he cited Sir Montague
Smith's definition of this sub-.sec.
in Citizens' Insurance Co. r. Par-
sons [see sub-sec. 13, sec. 92], that
the words "include political ar-
rangements in regard to trade re-

V i

li.NA. AC'I', s. 91 (3).— BKKWEKS IX QUEBEC.

Ex parte
Whalen.

Daxaher I'.
Peters.

ill

MOLSON I'.

Lambg.

LoNuuEir,
Navigation Co,
V. City or
Montreal.

quiring the sanction of Parliament,
regulation of triulo in matter.s of in-
ter-provincial concerns, and it may
be that they would include general
regulation of trade affecting the
whole Dominion " ; and held that
the Act under consideration did not
conflict with the power of the Do-
minion Parliament to legislate upon
the subject of sub-sec. 2.

In Daxahek /•. Peteks, 27 S. C.
N. B. 554, June 14, 1889, 17 S. C.
K. 44, it was held that the Legisla-
ture of N(!W Brunswick, by the
New Brunswick Liquor License
Act, 1887, 50 Vict. c. 4., could pro-
perly impose the conditions that
applications for licenses must be en-
dorsed by the certificate of one-third
of the ratepayers of the di.strict for
which the license was asked, and
that no holder of a license should be
a member of the municipal council,
a justice of the peace, or a public
school teacher, and that the Act
was not ultra vires the local legis-
lature as being a jjrohibitory mea-
sure by reason of the ratepayers
being able to pievent any licenses
being issued, nor was it a measure
in restraint of trade by atHxing a
stigma to the selling of liquor.

In MoLsoN (". Lambe, 1 ilon.
Sup. C. 264; 2 Mon. Q. B. 381 ;
in S. C. March 15, 1888, 15 S. C.
R. 253, Severn's case \_see. p. 52]
was not followed, and it was held
that brewers must take out a license
in Quebec under the provincial Act,
41 Vict. c. 3., although duly licen-
sed as a brewer under the Dominion
Parliament Act, 43 Vict. c. 19.

In LoMJUETL Navigation Co. r.
City oe Montreal, Dec. 15, 1888,
15 S. C. R. 566 ; reported below, 3
Mon. Q. B. 172, it M-as held that
the provincial Act of Quebec, 39
Vict. c. 52., imposing a tax on ferry

(3.) The raising of money by any mode or system of

taxation.^

' >S<Y' American Constitution, art, ciled with sub-sec. 2 of sec. 92 b)
1. s. 8. This article is to be recou- treating .sub sec. 3 of sec. 91 as

boats, was valid, though the bye-law
was bad for not following the Act.

The defendants in Queddy River
Driving Boom Co. v. D.widsox,
May 1, 1883, 10 S. C. R. 222,
(4aimed, under a New Brunswick
Act, 45 V^ict. c. 100., which incor-
porated them, to cause an ob-
struction by booming in a tidal
and navigable river. Held, affirm-
ing Palmer, .F., that to give n
righi to obstruct navigation whs
an encroachment on the e.Kclnsive
powers given to the Dominion
under sub-see. 2 of sec. 91. Se-
condly, that such legislation iiiiji;iit
interfere with the rights of person.ii
not Canadians having rights to
navigate or fi.sh. Taschereau, •].,
did not disagree from the judguifiit,
but .said " navigation ami shipping
are left under the control of the
Federal authority, it is true ; Imt
this, under sub-sec. 10 of see. 92 of
the B. N. A. Act, does not extend
to, for instance, a line of steamers
or other ships entirely within tiie
province — that is to say, plying
from one part of the province to
another part of the same province.
That would, I presume, be a local
undertaking under the control of
the local legislature. May it not
be .'laid that the boom in (picstioii
is also a local undertaking? Can
it be said that the incorporation of
this company was for fedend ob-
jects ? If it was for provincial ob-
jects, was it not legally incorporated
by the New Brunswick Logislii-
ture?" See American case, State
of Peiinsvlvania v. The Wheeling
and Bridge Co., Deo. 1851, .M
S. C. R. (U. S.) (13 How.) 5b.
For power to license, regulate, and
govern trades see Virgo v. Citvof
Toronto, 20 O. A. R. 435 ; Feb! 20,
1893, 22 S. C. R. 447, where all the
cases on interference with trade are
cited.

B.X.A. ACT, s. 91 (3).— PROVINCIAL SUBSIDIES.

empowering the supreme legisln-
tui'P to taise revenue by any mode
of taxation, whether direct or in-
(lii'pct, and .snb-see. 2 of sec. 92 us
confiiiinn; tlie provincial legislature
to direct taxation within the jii'o-
viiK'p for provincial purposes.

See Vow V. Black, March 5, 1 875,
6L K. P.O. 272; 44 L. d. P. C.
52 ; 32 L. T. 274, reversing the
Siipromo Court of Xew Bruns-
wici<, 22 Feb. 1873, I Pugs. 300,
and liohhng tliat the Act of the
provincial legislature of Xew Bruns-
wick,153 Vict. c. 47., empowering the
Miajoritv of the inhabitants of tlie
piirisli of St. Stephen in the pro-
vince to raise by local taxation a
«ul),sidyto advance the construction
of a railway going beyond the
frontier already authorized by sta-
tute, was witliin the power of the
provincial legislature.

Sir .1. W. Colvile .siid, delivering
th(! judgment of the Juchcial Coni-
niiltce, at • hich were present, also,
James auf Mellisli, L.J.I., and Sir
Montague E. Smith: "In substance
and principle it does not differfroni a
private Act authorizing the trustees
of a minor to let a warehouse to a
conipany, Suppose the work, instead
of being a railway, had been a
canal, aiul the inhabitants had been
authorized to make a bargain for
the supply of water to the district,
could any doubt have been enter-
tained on the subject ? Their Lord-
ships ar(> of opinion that no ob-
jection to the validity of the Act is
to bo found in the sub-section in
question " ; sub-see. 10 (o) see. 92].
"Another question has been
laispil for tlio first time at this Bar
(for the olijecioi. ri .,..■ ^ot apijcar
toliavo h'kv, ■■■
Court), vi'het', ■
the p''oviii jui' if
Act hy wliicc, f
as this could i

':>■ .ue Colonial
i- was power in

ii urc to pass ar.

fin assessment

nviiiosed on the

town of St. Stephen."

" It has been argued that whereas
die 91st section reserves to the Par-
liament of Canada exclusive power
ot legislation in respect of, amongst

other subjects, ' the raising of i>ow v. Black.
money by any mode or system of
taxation,' the only qualifications im-
posed on that general reservation
are to be found in the 2nd and 9th
suli-secs of sec. 92. The latter has
obviously no bearing on the present
question. As to the former, it was
eontt^nded that it authorizes direct
taxation only for the purpose of
raising a revenue for general pro-
vincial purijoses, that is, taxation
incident on the wl ole province for
the general purposes of the whole
province. Their Lordships see no
reason for giving so linnted a con-
struction to this elau.se of the sta-
tute. They think it nnist be taken
to enable the provincial legislature,
wdienever it shall .see fit, to impose
direct taxation for a local purpose
upon a p.articular locality within
the [jrovince. They conceive that
the sub-see. 3 of sec. 91 is to be
reeoncile<l with .sub-sec. 2 of see. 92
by treating the former as empower-
ing the supreme legi.slature to raise
revenue by any moilc of taxation,
whether direct or indirect ; and the
latter as confining the provincial
legislature to direct taxation within
the province foi' |)rovincial pur-
poses."

"Their Lordships are further of
opinion, with Fi.'<her, J., the dis-
sentient judge in the S. C, that
the Act in question [N. B. Act,
33 Vict. c. 47.], even if it did not
fall within the 2nd sub-sec. of sec.
92, would clearly be a law relating to
a matter of a merely local or private
nature within the meaning of .sub-
sec. 9 of sec. 92 of the Imperial
statute, and therefore one which
the provincial legislature was com-
petent to pass, ludcss the subject-
matter coidd be distinctly shown to
fall within one or other of the
classes of subjects specially enu-
merated in the 91st section. This
view is in accordance with the
ruling of the tribunal in the recent
case of L' Union St. Jacques de
Montreal v. Belisle," 15 L. C. J.
212. [In Q. B. Quebec, 20 Sept.
1872 ; in P. C. July 8, 1874, 6 L.

£ 2

''i J. Li

'I, '?'!

R 11

mmmm

B.N.A. ACT, s 01 (.3) —TAXATION ON BANKS.

Att.-Geji. foh

QCEBEC t'.

Queen iNsrR-

ANCE Co.

Bow «. Black. R. p. C. 31; 31 L. T. Ill; 22
W. R. 933. See ail fc, soc. 91 ; aiul
pub-.spc. 21, sec. 91]. Sec for tlu'
early part of the jii(l<;in<'iit in Dow
V. Black, .subseo. 10(a), sec. 91.

Sir Moiitagiu> E. Smith, in giving
judgment in Citizens' Insurance
Co. r. Parsons, in courts below,
43U.C.Q. B. 261; 4(). A.K.96;
4 S. C. K. 215 ; in 1>. C. Nov. 2(5,
1881, 7 App. Cas. pp. 96, 108;
51 L. J. P. C. 11; 45 L. T. 721
[post, sub-see. 13]. .said: "So 'the
raising of money by any modt; or
system of taxaiion' is enumerated
among the classes of subjects in
sec. 91 ; but, though the description
is sufficiently large and general to
include ' direct taxation within the
province, in order to the raising of
a revenue for provincial purposes,'
assigned to the provincial legisla-
tures by [sub-sec. 2] sec. 92, it ob-
viously could not have been intended
that in this in.stance also the general
power should override the parti-
cular one. With regard to certain
classes of subjects, therefore, gene-
rally described in sec. 91, legislative
power may I'eside as to some matters
within the general description of
these subjects in the legislatures of
the provinces."

In Toronto B.\nk and the other
three cases r. L.vmbe, in Q. B.,
Quebec, 23 Jan. 1885; in P. {'.
July 9, 1887, 12 App. Cas. pp. 575,
585; 56 L. J. P. C, 87; 57 L. T.
377 [see post, sec. 92, sub-sec. 2],
the Quebec Legislature had taxed
every bank, insurance company, and
incorporated company carrying on
business, accepting risks, or trad-
ing, &c., respectively in the pro-
vince of Quebec, banks paying a
tax on the paid-up capital, and an
udditional sum for each place of
bu.siness. Insurance companies were
taxed in a sum specified in the Act.
The Judicial Committee held this
Act was within the power of sub-
sec. 2, sec. 92, and was intra vires.

Lord Hobhouse, in giving judg-
ment, said : " It is impossible to
give exclusively to the Dominion

Toronto Bank
and the other
three cases
I). Lambk.

the whole subject of raising nionnv
by any mode of taxation, and at
the same time to give to the pro-
vincial legislatui'cs, exclusively or
at all, the power of direct taxation
for [)rovincial or any other pur-
|)oses. Tiiis very conflict Ijctwecn
the two sections was noticed l)v
way of illustration in the case of
Parsons " [and his Lordship quotpil
the passage from Parsons' case given
al)oye] ; and said their Lordships
" adhere to that view, and held flint
as regards direct taxation within the
province to rai.se revenue for pro-
vincial ptu'poses, that subject i'lills
wholly within the jurisdiction of
the provincial legislatures."

The Judicial Committee, July 5.
1878, in Attorney-General for
Quebec v. Queen Insur.vnce Co.,
in Q. B., Quebec, 14 Dec. 1877, 27
L. C. .1. 77; in P. C. July 5,1878,
3 App. Cas. 1090; 38 L. T. 897
[see post, sec. 92, sub-sees. 2 and
9, pp. 119, 126], held that tlie
Quebec Act, 1875, 39 Vict. c. 7,,
which merely provided that the
price of a license, which all assurci'.*
except marine must take out, should
be an adhesive stamp affixed to tlie
policy or receipt or renewal — tlie
amount of the stamp to be in «iso
of fire ? i)er cent., and 1 per cent,
for other assurances, on the pre-
miunis paid — was not within ti:e
))ower of the provincial legislatnre
under sub-sees. 2 and 9 of sec. 92.

Inland Revenue. — Hehl tlmt
the 156th .section of the Dominion
Inland Revenue Act, 31 Vict. c. 8,
by which the Dominion Parliament
conferred jurisdiction on the Vice-
Admiralty Court, N. S., in proseeu-
tions for penalties and forfeitures
incurred thereunder, was intra
vires the Dominion, notwithstand-
ing such court is established in
Canatla by Imperial authority,
Attoi'nev - General of Canada r,
Flint, 3 S. C. N. S. 453, in
S. C. Jan. 16, 1884, 16 S. C. K.
707 ; sec also Valin r. Langlois.
3 S. C, R. 1 ; 5 App. Cns. 115;

B.N. A. ACT, s. 91 (4)-(7).— MILITARY DEFENCE.

49 L. J. P. C. 37 ; 41 L. T. (502

[ante, .sec. 41].

Hcniv, J., said : " Although tlu;
Vic'e-A(hnimlty Court is p.'itiiblishcd
by tiic authority of Euyhind, still
I SCO nothing to ])revcnt the Par-
linmciit of Canada, inasnuich as
tlint Court sits witliin the jurisdic-
tion of that Parliament, to giw it
powir and authority to try Inland
Ki'Vi'iuif cases or cases connected
with tiic Customs. I would say,
liowovcr, I do not think that Court
coiilil lie obliged to perform such
(lutv, and that it i.s a Court which
might very well wrap itself up in
its authority, and say, ' Our other
duties prevent us from a.ssuming
tiic functions a.ssigned to us hy the
Pni'liiuncnt of Canada ' ; but it is
reailv to ado])t the duty, and I see
no reason why the Parliament of
Canada should not have the power
to impose it." See Imperial Colo-
nial Courts of Admiralty Act,
1890, 53 & 51 Vict. e. 27. s. 3.

Reference may be made to the
United States Constitution. There
Congress has special and enume-

rated powers. In the Dominion Inland
Constitution it is the provinces Kevenui
that have special and enumerated
powers. For instance, the U.S.
Congress has not an unlimited
power of taxation. It has been
held to be limited to .sjiecific ob-
jects. No doubt, to nuike grnm-
nuir of the 1st ehuise of the 8th
section of the U.S. Constitution,
aiul to give it at the sanu- time a
(pudifying .sense, the words " in
order " have to be inserted in that
section. See vStory, Const. U. S.
908. A .sample of this limited
power was given on 21 May 1895,
when the Supreme Court, U. S.,
by the majority, composed of Ful-
ler, Field, Gray, Brewer, and
Shiras, JJ., were against the legal-
ity of the income-ta.\ on rent and
personal property imposed by the
Tariff Act, 1894, .ss. 27 to 37, on
the ground that it was a direci, tax
and therefore unconstitutional.
The judges in favour of the mea-
sure were Harlan, White, Brown,
and Jackson, JJ.

(4.) The borrowing of money on the public credit.^

(5.) Postal service.'^

(6.) The census and statistics.'^

(7.) Militia, military and naval service, and defence.^

' Sec American Constitution,

i art. 1. s. 2.

- Sec American Constitution,

ml 1. s. 7.

The Minister of Justice, 2 Jan.
1873, while allowing a British
I Columbia Act respecting registra-
Ition of births, deaths, and mar-
jiiii^'esin that province, desired to
Icall attention to the fact that the
jAct might be questioned as being
Iconncctedwith "statistics." Prov.
|Lig„186G, p. 715.

' See American Constitution,
|«rt. l.ss. 12 (Army), 13 (Navy),
|l5 (Militia).

The Dominion having the ex-

clusive right of legislating as to all
matters coming under this head,
and any part of the land in a
province, might be taken by the
Dominion Legishiture for the pur-
pose of military defence. But be-
cause this jjossibly might be done is
no reason for holding that an Act of
the provincial h'gislature whore the
land is situated, dealing with the
land in a local and private manner,
is ultra vires. See Lord Selbornc
in L'Union St. Jacques de Mon-
treal V. BMisle, 15 L. C. J. 212, in
Q. B. Quebec, 20 Sept. 1872; in
P. C. July 8, 1874, L. R. G P. C.
p. 37; 31 L. T. Ill; 22 W. R,
933 [post, sec. 91, sub-sec. 21].

70 B.N.A, ACT, s. 01 (S)-( 10).— NAVIGATION & SHIPPING.

Rbo. t'.

CoLLEdE OK

Physicians.

liKVnOlION V.
CoilPOHATION

OF Ottawa.

■i" ii;;

In Reg. v. Com-ege ok Physi-
cians, Ontario, Dec 27, 1879, 41
U. C. Q. B. p. 57fi, Hiisiirty. C\J.,
heldtlint tho B. N. A. Act, when il
speaks of any ('xclusivi' right, it

means exclusive as opposed to iinv
attempt to legislate by the Donii-
nioii PniTiament. And see Note,
sul)-sec. 23, sec. 91.

(8.) Tli(3 tixiiig of and providiiiij,' for the salaries and
allowance's of ciA'il and other officers of the
Governmenv' ol' Canada,^

(9.) Beacons, buoys, lighthouses, and Sable Island."
(10.) Navigation and shipping.'

1 Compare \vithsul)-sec.-l,sc'e.92.

A tax by or through a pro-
vincial legislature upon the means
by which the Dominion Govci'ii-
nient is carried on is Mltra vires.
In Leprohon i'. Corporation oi^ tlie
Citv of Ottawa, 30 March 187H,
2 6. A. K. [Tapper] 522 ; lower
court, 40 U. C. Q. B. 478, reversed,
held that a provincial legislature
has no power to impose a tax upon
the official income of an officer of
the Dominion Government or to
confer such a jiowei- on tho nnnii-
cipalities.

Spragge, J. : The raising of
money is necessary for the ilue
and effectual working of municipal
institutions, and tlie giving to them
the j)ower to raise money liy taxing
inhabitants of the municipality foi'
municipal purposes would .seem to
he within the power of the pro-
vincial legislature. "There is at
the same time an implied limita-
tion upon every power confei-red,
wliether conferred in terms or l>y
implication, that it must not
encroach upon or interfere with
the powers conferred idsewhere."
" What the Legislature of Ontario
has done has been to declare in-
come to be personal pio])erty and
to make land and personal propeity
liable to taxation for municipal
purpo.se8; at first continuing an
exemption then upon the statute
lx)ok, and then by a subsequent
Act of 1871 abolishing that ex-
emption, leaving incomes of Do-

minion as well as provincial officers
liable to taxation as a spetiies of
personal property." " I premise
if tiie i)rovincial legislature caiuiot
do indirectly what it cannot do
directly, if it cannot impose ii
direct tax upon public salaries,
Dominion as well as provincial, it
cannot empower municipalities in
do so." It would l)e within tin
competency of a j)rovincial Icpi^-
lature under sub-sec. 2, sec. [)'l
[Direct Taxation], to impose ny;m
rata tax upon all salaries given to
prochicial officers. It would bo hi
because it would lie acting on thoM'
over whose .salary they have coii-
tiol. But suppo.se such a tax im-
posed u[)on the ,'ialaries of .'ill
otlicei's of Government, Doniiiiioii
as Well as [)rovincial, it woulil niix'
a Aery different (piestion. It would
impose a bui'den upon the .saliirv
of the Dominion officer.

It was hehl in Evans r. Hiidnn,
29 Dec. 1877, 22 L. C. J. 26s,
that a local Act of Quebec Legis-
lature was unconstitutional, wiiicli
declared seizable the salaries of em- ^
ployees of the Federal Goveriinient.

2 Keferrcd to in L'Uniou Si,
Jacques ile Montreal r. Belislc,
15 L. C. J. 212, in Q. B. Qnelm,
20 Sei)t. 1872; in P. C. Jnlv .S
1874, L. K. 6P. C. p. 37; 3i L.
J. Ill; 22 W. B. 933 [poiit,m.
92, sub-sec. 16].

'■^ This conferred on the Parlia-
ment of Canada lcgislati\eauthoriK
over all matters occurring in Gana-

B.X.A. ACT, s. Ul (11), (12).— DOMINION & FISHERIES. 71

(linn wnlei's within tli(> siilijcct
N'nvi^atioii inni Siii|i|)iii^, iiiid its
ro-o[)onition wa.s rciiiiirctl to i;i\c
eti'ect to liie saini- riiU's of ntivifjii-
tioii ns liiis lipon ii.sed in Eiijflimd.
Sfc " EiizH Kfitli," 0 April 1H77 ;
?^ Q. L. R. I4;5. Tiierc the Ciiriii-
(iiiin Act ol' 1S(5H, HI Vict. c. 58.,
wiiicli provided tiiiil wiiere two
siiips were each to hlanie for u eol-
lisidii ill Ciniadian waters hotii were
prccliidcd I'loin reeovei'ing its dani-
i[<iv, WHS lioid to he operative, al-
ihoiifjli tlie A(huiraity rule which
liivides tiio lo.sH prexaiis in Eng-
liind, ami had heen applied in ii
I'ji.iic ol' collision on Canailian
wiilcis on an appeal to the Privy
Comicil [Underwriter and "Lake
St. Clair" r. A. Ct. Quebec, in
l\ C, 1 1 Fch. 1877, 2 A|)p. Cas.
38!) ; 30 Ii. T. 155]. The law
};iv('ii circct to in " Kli/.a Keith " is
lint now cfFective in Canada, the
law haviiiij heen made .'iiinilar to
English law, namely, that when
hotli vessels are in fault, the dam-
ap;n is to he hornc equally. See p.
1158 of n. Sta. Canada^ 188(!, 40
Vict. c. 7i). s. 7.

Professing to act under the
j powers contained in their Act of
iiu'or|)oration, 45 Vict, c. 100.
(Xew JJrnn.swick), the Qucddy
[Kivcr Driving Boom Com])any
jeroctfd liooiiis and piers in the
iQiU'ddy Hiver, in that part of the
irivcr which is tidal and naviga-
Iblc, and thus impeded navigation.
lit WHS held that provincial legisla-
Ituns could not give power to ob-

struct a tidal navigable river.
(Qucddy Hi\cr Driving Hnoin Com-
pany r. I)avid,son, IVlay 1, 188,3,
10 S. C. K. 222.

The Nova Scotia Legislature
passed the Ii) Vii-t. c. 5(i., an Act
concerning the cfdlection of freight
anil wharfage and warehouse
charges, ami has, with u few
changes, re-enacted the provision
of the Merchant Shipping Act,
18(52, relative* to the delivery of
goods and lien for freight, ss, 66,
07. That latter Act by its terms
was to be coiistnu'd with the Mer-
chant Shipping Act of 1854, by the
517th sec. of which it was proyided
that the legislative authority of any
liritish posse.ssion shall have power
by any Act or ordinance confirmed
by Her ISIajesty in Council to re-
peal wholly or in i)art any provi-
sion of the Act relating to shipping
rcgistei'cd in such, possessions, after
procl.imation and the statement of
a future time for c. m ncncement.
The Mini.ster of Justice, 30 March
1887, reported that the Parliament
of Canada, acting under sec. 91,
passed Acts res[)ecting navigation
and .shipping and trade and com-
merce in its relation to these sub-
jects. That subject to this legis-
lation the Merchant Shipping Act,
1854 [see now the Act of 1894,
c. GO. s. 735], is in force in Can-
ada, and in his opinion the legisla-
ture of the province of Nova
Scotia exceeded its powers in pas-
sing the Act under consideration.
Prov. Leg., 1888, 132.

Qteddy

FbvK.ii f'o. V.
Davidsom.

(11.) Quarantine and the establishment and mainten-
ance of marine hospitals.^

(12.) Sea coast and inland fisheries.^

^ Dealt with by the Dominion.
nioreforcon 5 April 1887, the Min-
Wer of Justice reconimeiided ccr-
Jin sections of Public Health Act,
P Vict. c. 1., passed by Legislature
Prmcc Edward Island be re-
aled. Prov. Leg., 1887.

2 AVesecs. 92 (sub-sees. 13, 16),
109, 129.

Because land might be taken by
the Dominion is no reason before
it is done to argue that all ])rovin-
cial legishttion over all land in the
province i.s taken away. See Lord

?'Jl|

B.X.A, ACT, s. i)l (12). -LEASES OF FISmNOS.

KullEHTBOM V,
STRAnslAN.

Rkii. t'.
KoDKiirsoN.

St'lhoriH' in LTiiioii St. Jiicciiies
(le Moiitival r. l\b\\x\v, 17 L. ('. .1.
211', ill (.1 H. giiflMT, 20 Sept.
1872; in V. V. .Inly H, 1H71; L.

I?, (i r. ('. p. 37 i :n l, t. in ;

22 w. K. 0;iM.

Fisli, J., wlio wa.s II piiitv to tlic
viirioii.s (lisciis.sioMs rt'ltitiiifi to tlic
Union, anil knew tin- oljjcct of
placiiifi the fisiiorii's iiniliT tlic ron-
trol of the Dominion, as lie liinist-lf
tells IIS in Kobcrtson /•. Slcadinaii,
Oct. 187(5, S. C. N. B., ii l'ii}j;.s.
635, 637, savs in tliat ca.sc :
" Lookinji at the o1)jccts sought
to be attained by the union of the
provineps, and the .state of legiisia-
tion in the dift'eient provinces at the
time of the I'nion" [they all haviiifr
laws for the protection nnd regula-
tion of the fisheries] " I think it
must be inferred that the intention
was to confer upon Pailiament the
same power that the legislatures of
the different proviiK-es had been
accustomed to exercise, that is, the
power to provide for the regulation
and proteeiion of the fisheries."
See also Steadman r. Robertson,
1879, S. C. N. 11, 2 Pugs. & Bur.
at p. 59 1, a later stage of the .same
(•ase, where Fisher, .)., re|)eats the
above.

Held in Re(!. /•. Bobertson,
April 28, 1882, US. V. K. 52, that
the general power of (jroteeting fish-
ings is in the Piirlianii-iit of Canada,
but the Minister of Marine ami
Fisheries ought only to grant lea.ses
of fishing where the exclusive right
of fishing does not ali'eady exist by
law. This was a ipiestion as to
the right of salmon fishing in the
Miramichi river above tidal waters
in the province of New Brunswick,
and as to the validity of an in.stru-
ment purporting to be a license
or lease, under the Dominion
Fisheries Act, 31 Vict. c. 60. s. 2.
(186^0, issued by the Minister of
Marine and Fisheries. Though
non-tidal at this part the river was
a navigable highway, and used for
floating timber to market in the
spring and fall. There were Acts

in New Brunswick, Nova Seotin,
and Canada respectively, dciilinir
with fishci'ics and tishing at tlii'
pii.Hsing of the B. N. A. Act. ninl
tlu^sc W(>i'c to coiitiniie until altcicd
B. N. A. Act, sect. 129. Kildiir,
C..I. said (p. of 11. 126) : "Tliem,.
gra"'ed lands in the province di
Nn • Mrunswiek lieing in the Crown
for the lieiieiit of the people of Xcw
Brunswick, the cxclusi\f right l(,
fish follows as an incident, unit it
in the Crown as a trustee for the
benefit of the people of the ])ro-
viiice exclusively, and thereioif u
license by the ilinister of Mariin'
and Fisheries to fi.sh in streiiiib
running through provincial pni-
perty or private lands is illegnl,
and conseipiently the lease or liceiiw
issued to the suppliant is null and
void." (p. 119) "To all general ln\\>
pas.sed by the Dominion of Camulu
regulating 'sea coasts and inland
fisheries' all nmst submit, but siicJi
laws must not conflict or eonipetc
with the legislative power of the
local legislatures over property unii
civil rights beyond what may
be necessary for legislating gene-
rally and effeetiially for the regu-
lation, protection, and jjreservation
of the fisheries in the interests of
the public at large. TherefoiT,
while the local legislatures have nn
right to pass any laws interfcriii;;
with the regulation and protection
of the fisheries as they might Imvc
passed before confedei'ation, tliev
clearly have a right to pass any Inws
affei'ting the pro))erty in those fish-
eries." In this opinion Stronj;, J,,
eonciuring, said (p. 133) : "By sub-
sec. 13 of s(;c. 92, the exclusive rifrlii
to legislate concerning property i>
conferred upon the local legisla-
tures, to whom also by the 16tlisuli-
section are granted similar powi-is
concerning matters of a local iiml
private nature. These provisions
must necessarily exclude the right
of the Parliament of the Doniinioii
to legislate to the prejudice of tlio
rights of fi.shiug vestefl in the pro-
prietors of beds of rivers and
streams, unless we find in sec. 91.

BN.A. aCT, s. 91 (12).— CJUEAT LAKE FISHERIES. 73

ilt'iiiiii"}; tlic powrr.s ol' tlu' Parliii-
ini'iil.^oiiic »'.\i'<'|)ti(>ii to tile jjciicnil
i.|Tci'f III' llu' \V(inl ' pi^opcrtv' m.h iii-
cliidiiij; Micli II pnipricttirv rijilit."
I'll,, suli-s.'c. 11>, svr. in, "l.y
the siiifilc t'xpn'ssidii * inliinil fish-
eries,' coiifcrrcd upon tlic I'lirlia-
iiieiit of C'aiiiula no power ol"
tiiiiiiin iiway c.xi'lnsivc rij^lits ol'
tislierv vi'sU'il in pi'ivatc proprii--
tni> dl' n()n-navi<;al)!(' rivers, ami
Miciii'.xfiii.'iive ri;;litM, Ix^infj; in everv
seu.'ic of t lie word 'properly,' can
only lie interfered with i)y tlie
prdviiiciiil lej^islatnres in exercise
(if the powers fjiven to tlieni liy
llie provisions of see. !)2." "This
lines not by any means leave the
.>iiil)-i'lniise referred to in sec. 91
witlioni ell'ect, for it may well he
idiisiderod as anthori/inn; Parlia-
ment to pass laws for refjnlatinf;
and (•onser\ation of all lislierie.s,
inland as well as seu-eoast, liy enact-
ing, for instance, that Hsh shall
not lie taken dnrin<^ particular
seasons, in order that protection
may lie afforded whilst hrecdiny;
prohiliiting ohstructions in asccnd-
ini; rivers from the sea ; prevent-
in;; the undne ilestrnction of fi.sli
liy tnkinj; them in a. particnlur
mannei', or with forliidih-n en<j;iiies,
and in nnmy other ways ])i'ovidin<i;
for wliat may he called the polici'
of tlie (isliei'ies. Again, nnder tills
|irovisioii Parliament may enact
I'lws for rejjnlnting and restricting
tlie riglit of fishing in the waters
lielonp;ing to the Dominion, .snch as
piiblie Imrlioiirs, the beds of which
liave lately been determined by
tliisCoMi't [nee sec. 108 and Holnian
V. Green, .March 28, 1881, (i
S. ('. ]{. 707] to be vested in the
I'l'own in right of the Dominion,
anil also for regnlating the public
iidanil fisheries of the Dominion,
sneli as those of the great lakes and
possilily also those of eavigable
non-ti(ial rivers." "By the D. N. A.
Act tile Crown lands are vested in
tile resiieetive provinces. This, of
iourse,iiiehiiles the beds of all non-
iiiivigable ri\ ers and the conseqnent
right to fish in such waters, for

there can be no doubt thnt the right !''■:"• •'•
of taking the fish in rivers of this Hobkhtso"-
(dass, so long as they remain nn-
graiited, is vi-sted in the i>rovineesas
an incident of the ownership of the
public domain, just as the timber
and all other profits of the land
ai'e so vested. These fisheries,
although often in practice not eon-
servi'd by the provinces, are cer-
tainly not public fisheries open of
common right to all who may
choose to avail thenistdves of them,
as is the cnse with regard to
fisheries in tidal waters and the
great lakes, but the provincial
governments may, without special
legislation anil in exercise of their
right of jiroperty, restrict their use
in any manner which may .seem
expedient, just as freely as private
owners might do. In short, the
public have no more right in law to
lake fish in uon-navigable rivers
belonging to the province than they
have to fell and carry away trees
growing on the public hinds ; in
the one instance, as in the other,
such iiiterfercnces with provincial
rights of proiicrty arc neither more
nor less than illegal act.s of tres-
pass." " The Crown lands are
expressly a.ssurcd to the provinces,
and these include the licds of all
.streains as that now in question.
Where it was intended to make an
exception to the general terms of
sec. 109, as in the case of property
reserved to Canada by the 108th
sec, and the power to assume lands
or public i)roperty for the purpose
of defence, sec. 117, we find such
exceptions expressed in dear and
distinct enactments. How, then,
can it b(! jiresumed, in view not
only of the 109th sec. but also of
the 5th sub-sec. of .sec. 92, giving
the provinces exclusive legislative
powers respecting tlu! public lands,
and that as to property generally in
sub-sec. 13., sec. 92, that the Do-
minion has the power to legislate
respecting these fisheries incidental
to the owner.ship of the provincial
lands, or respecting any other dis-
memberment of the right of pro-

' r

4 > ■

-I I'S

74 B.N. A. \VT, s. 91 (1.3)-(lo).— PARAMOUNT ACTS.

Rku. I'.

KonERTSON.

8. i:

perty in such Iiuids, if it is not
conferred by tlu' clause in .sec. 91
respecting seu-coast and inland
fisheries ? Not a single provision
of the B. N. A. Act can be pointed
to as conferring such powers of
legislation except thftt just men-
tioned, which, for the reasons al-
ready given in c(jnsidering the i-ase
of private owners, must be held in-
applicable." "There are, of course,
Hsherics of a different character
from those in non-navigable waters
to be founil within the limits of all
the pi'ovinces — public fisheries, such
as those in tidal rivers and in the
great lakes of the western pro-
vinces A question may arise
whethe'- the provisions contained in
sec. !)1 authorizes Parliament to
empower the Crown to grant the
ex(dusive rights in respect to such
fisliories." But his Lordship did not
decide that question. A like view
of the !nw was taken by Fi.sher, J.,
in Stciidman v. ]{obertson, 1879,
S. C. N. B., 2 Pugs. & Bur. p. 598.
See Direct United States Cable
Co. V. Anglo-American Telegra})li
Co., Feb. 14, 1877, 2 App. Cas. at
p. 116 ; IG L. J. P. C. 71 ; 3G L. T.
265, where Lord Blackburn held
that th(^ Legislature of Newfound-
land had the right derived from the
Crown to give the use of a spot in
C'onception Bay (a l)ay a\eraging
15 miles wide and about -10 miles
from its head to the ]»romontory of
Cape St. Francis) as if it were a
.spot of dr} land of the island of
Newfoun(iland. See the case of
fi.shiug for salmon in the Bay of
Chaleurs, more than three miles from

shore. Mowat v. McFee, Junp 10
1880, 5 S. C. li. m.

Prince Edward Island Legisla-
ture, proposing to pass an Act for
the preservation of the Alewives
fisheries, the Mini.ster of Justice
objected that the province could
not now pass such an Act, nor poe-
tinue the old Act in force, as itwns
a matter delegated to the Dominion
Parliament. Prov. Leg., 1886, 9lH.

No restraint upon the ordinnrv
rights of property, no tlerogiitioii
from the fullest enjoyment of these
right.s, can be inipo.sed l)y statute,
<;xcept by express words. There-
fore, where an inspector of fisheries
acting under the Dominion Order
in Council, 11 .fmie 1879, piis.sed
in pursuance of sec. 19 of tlic
Fisheries Act, 31 Vict. (Doui.)
c. 60., in these words, " Fisiiini;
for salmon in the Dondnion of
Canada, excejjt under the authority
of leases or licenses from the De-
])artnient of Marine and Fisheries,
is hereby ])rohibited," went on tiie
pro.sccutor's land .-ittiatod above
the flow of the tide and seized his
rod for fishing for salmon without
a licen.se, it was held a trespass had
been comndtted. Strong, J., saying,
"Granting the Dondnion could make
police regulations for preservation
of salmon in the puldic interest and
for preservation of fisheries, thiit
neither explicitly nor by implication
is the requirement of a license niiiile
applicable to riparian owners i\>
reganls hi.Mng in private streams."
Venning v. Steadnian, March S,
1884, 9 S. C. R. p. 215.

Tennant v.
UNioy Ba.vk
or Canada.

(13.) Eerries between a province and any British or

foreign country or between two provinces.
(14.) Currency and coinage.*

(15.) Banking, incorporation of banks,^ and tbe issue
of paper money.

^ See American Constitution, provincial legislatures, yet the

art. 1. s. 10. Dominion Act is the paramount

- Although a Dominion Act may authority (Tennant v. Unmon

clash with matter assigned to the Bank of Canada, in Ct. App.

BXA. ACT, s. 91 (15).— ASSESSMENT on BANK NOTES. 75

Out., 8 Jan. 1892, 19 O. A. R. 1 ; in
PC. Doe. 9, 189;^, P.O. [1891]
A. C. 31 ; 03 L. J. P. V. 25 ; 09

L.T. 77-1) [sec sub-.sec. 13,.sef. 92] ;
and warehouse receipt.s taken in
security by a bank in tho course of
the biisiuoss of banking arc matters
coming witliin tlie class of subjects
dei^cribed in sec. 91, sub-see. 15,
and provisions made by the Domi-
iiiuii Bank Act, R. S. C. c. 120.
<s.4.), 33, 51 (2), and 51, respecting
such rec('i()ts are intra vires. See
see. 92, .sub-sec. 13.

hi Bank OF ToHOM'o v. Lamijk
(from Q. B., Quebec, Jan. 23, 1H85,
29 L.C.J. 77; 1 Mon. Q. B. 122;
iiiP. C. July 9, 1887; Wheeler's
P. V. Law, 381 ; 12 App. Ca.s, 575 ;
5(5 L. J. P. C. 87 ; 57 L. T. 377 ;
sw post, sec. 92, sub-sec. 2), the
Jiiiiiciiil Committee held, affirming
the decision of the Queen's Bench,
Quebec, that the Quebec Act im-
posing a fax on the paid-up capital
of every bank doing business in
the province was intra vires, and
within the powers of the provincial
le;;islature under sub-sec. 2 of sec.
',12, and could not see how the
|ioHer of making biv.iks contribute
10 the public objects of the pro-
\ince.s where they were carrying on
Imsiness could interfere at all with
the powers of making laws on the
>uliject of banking, or with the
[lower of incorporating banks.

In Mkhciiaxts' Bank v. Smith,
Jan. 11), 1S84, 8 O. A. R. 15 ; 8 S.
C. H. 512, 28 Grant, G29, affirmed
hv Tennant v. Union Bank, it was
hild tluil a receipt given l)y a ware-
li'iiiM'uiaii was a valid receipt within
ilit'DoniiuionAct,34Vict.c.5.s.40,
iiiid that tlmt Act was intra vires
til'' Dominion Parliament under
-uli sees.2iuid 15, sec. !)1 — Regula-
'ion of tnidc and eonnuerve ; and
liaiiking, ttc.

hi the Town ok Windsor v.
t'oMMKRciAi, Bank ov Winujok,
•J S. C. N. S. (3 Russ. and dcl-
'lert). 420, Weatherbe, J., held

Thk Town or
Windsor v.
Commercial
Bank of

WiNDSOB.

that "all property, except that
of the Dominion or the pro-
vinces (see .sec. 125) may be made
eipially liable to assessment for
munici]ial purpo.ses by provincial
legislation," and therefore, in the
case of a bank doing business under
the General Banking Act of the
Dominion of ('anada in the town of
Windsor, which ludd, in addition
to real and oth ^jersonal property,
notes of the Dominion of Canada
as a portion of its cash reserve as
required l)y the Act relating to
banks and i>anking, it was decided
the assessors for the town of Wind-
sor were ri";ht in assessing; on the
Domunon Canada notes, th<'y not
being the property of the Dominion.
See Lawless v. Sullivan, 3 S. C.R.
117, March 22, 1881; Wheeler's
P. C. Law, 958 ; ^^ Apj). Cas. 50;
L. J. P. C. 33 ; 44 L. T. 897,
which was a tax by the legislature
of New Brunswick on the amount
of income received, whether by
foreign companies or not, doing
business in the city of St. John.
It was held, reversing the S'lpreme
Court, that the tax Avas payable on
the income after deducting los.ses for
the fiscal year ; that income, when
apj)lied to a commercial business for
a year, meant its natural and com-
monly accepted sonse, the balance
of gain over loss; and, consequent-
ly, where no such gain had been
made in the iiscal year, there was no
income ca])able of being asses.sed.

Li QuiuT r. The Queen, Nov. Qvirt v. Thk
16, 1891, 19 S. C. R. 510 ; 17 Out. ^^'•''''''■
App. R. 421 ; 17 Ont. R. G15, the
Sui)remc C'ourt held valid two Acts
of the Dominion Parlianu-nt. The
first Act incorporated trustees to
carry on the business of the Upper
Canada Bank — then insolvent — ,so
far as necessary for win("iiig it up ;
and the second Act transferred to
the Dominion Government all the
property of the bank vested in the
trustees'. Sir W. Ritchie, C.J.,
held the Acts were valid as coming
inider sub-sec. 15, sec. 91. Strong,
J., held they were valid as coming

>; h

Lynch v. Thk
Canada N. W.
Land Co.

76 B.N.A. ACT, s. ni (16)-(19).— TAXATION OR INTEREST.

QviRT V. The

under sub-sec. 21, sec. 91, nnd his
Lordship distinguished the judg-
ment of the P. C. in Union St.
Jacques r. Belisle, 15 L.C. J. 212,
in Q. B. Quebec, 20 Sept. 1872;
in P. C. July 8, 1874, 6 L.
R. P. C. 31; 31 L. T. Ill;
22 W R. 933 [see Note, sub-.sec.
16, sec. 5)2], on the ground that
the Act of the Quebec Legislature
in that case was held valid upon
the distinction expressly taken in
the judgment that it was not an
Act providing for a winding-up, as
in the case of bankruptcy or insol-
vency, but was rather an enactment

designed to a\oid such a result.
And his Lordship, while saying the
Dominion Acts in question might
be said to be special and not general
laws, and therefore were to he con-
sidered as assigned to the provincinl
legislature, under sub-sec. 16, sec.
92, the answer to that was that niiv
matter coming within the sulijecis
enumerated in sec. 91, although in
other respects it might be clns?«l
under the head of local and private
legislation, was expressly excepted
from the powers of the provincial
legislatures by the last sub-cl«usf
(29) of ,sec. 91.

(16.) Savings banks.

(17.) Weights and measures.*

(18.) Bills of exchange and promissory notes.^

(19.) Interest.'^

1 A section of a Manitobia Act
provided for bye-laws appointing
inspectors for visiting places where
weights and measures were used,
and for seizing and destroying
those not according to the standard.
It was doubted whether this legis-
lation eouhl be passed l)y the legis-
lature of a juovince. Pro\ . Leg.,
1886, p. 605.

" It would have been unnecessjuy
to specify this class of contracts if
authority over all contracts, and the
rights arising from them, had be-
longe<l to the Dominion Govern-
ment. (See Citizens' Insurance Co.
V. Parson.s, 43 U. C. Q. B. 261 ;
4 O. A. R. 96; in P. C. Nov. 26,
1881, 7 App. Cas. p. 110; 51 L.
J. P. C. 11; 45 L. T. 721. See
Note, sub-sec. 13, sec. 92.

•* An adilitioual sum added to
the amount of taxes as a penalty
for nonpayment of taxes is not in-
terest within the meaning of this
sub-section, but may be considered
as an additional tax added by the
pro^ iiicial legislature.

Lynch r. Tuk Canada N. W.
Land Co., in Q. B, Manitoba, 7
June 1890, 6 Man. L. R. 515; in

S. C. June 22, 1891, 19 S. C. R
204, was a case raised to test the
validity of the Act, 49 Vict. c. 52.
s. 626, as amended by 50 Vict
c. 10. s. 43 of the Manitoba
Legislature. That legislature au-
thorized municipalities to inipo.<f
an additional 10 per cent, on taxe-
unpaid after a certain time, and tlio
Acts in question provided, if ns-
sessed taxes were not paid by tin-
1st March, 10 per cent, should In
added to the original amount. It
was contended this additional lu
per cent, was illegal. That it w,i>
interest for delay, and consequently
ultra vires of the provincial legis-
lature. On the other hand, it was
maintained "interest" in sub-set'.
19, sec. 91, as to which the Do-
minion Act can only legislate, i<
intf'rest on commercial matters auJ
meant merely the rate of interest,
and sub-sec. 19 could not lie held
to apply to municipalities denliiig
with taxes, the additional tiix not
lieing interest, but a penalty iu the
way of an increased tax. Sir W.
Ritchie, C.J., said, reversing tbe
decision of Q. B. Man. [Taylor,
C.J., Killam and Bain, JJ.J;

B.X.A. ACT. s. 91 (19) -TAX FO« DELAY

i'lt is obvious that the matter of
interest which was intended to be
(Ipiilt with liv the Uouiinion Parlia-
ment [K. S.C. <•. 127. P. 2], was in
I tonncction with debts originating
ill pontrnet, and tliat it was never
intended in any way to confliet
[with tlie right of the local legis-
liitiire to deal with uiunicipal in-
Istitiitions in the matter of assess-
ments or taxation, either in the
nianner or extent to which the
local legislature should iinthorize
such assessments to be made, but
the intention was to prevetit in-
dividuals under certain circum-
htances from contracting for more
than a certain rate of interest, and
fixing a certain rate when interest
was pavnblo by law without a rate
I having been named. [Reads B. S.
JC. e. 127. s. 1.] It is abundantly
Iclear that taxes are not contracts
Ibetween i)arty and party, either
[express or implied, but they are
Ipaiitive acts of the Government
|through its \ arious agents binding
Qpon the inhabitants, and to the
Imaking and enforcing of which
Itlieir personal consent, individually,
ps not required. [Cites Meriwether
Garrett, 102 .S. C. U. S. 472,
573 ; Lane Countv r. Oregon, 71
S.C. r. S. (7 Wall) 71, 80]. In
liis case I can see no linutation
vith respect to nmnicipal matters,
vhich necessarily embraces the
lewiug of taxes for municipal pur-
oses and therefore falls within
bne of the classes of subjects enu-
nerated in sec. 92, and assigned
lxelusi\ely to the legislature of
he [)rovinees. Does not the coUo-
atiou of sub-see. 19 ' interest ' with
he classes of subjects as nund)ered,
|8 M)ills of exchange,' and 20
[legal tender,' afford a strong indi-
Btion that the interest referred to
•connected in the mind of the
fegislatnre with regulations as to
y rate of interest in mercantile
nnsaetions and other dealings
lid contracts between individuals,
|>'l not with taxation under muni-
pnl institutions and matters in-
dent thereto ? The present case

Land Co.

does not dcjal directly or indirectly Lynch c. Thk
with matters of contract. The Do- Canada N. W.
minion Act expressly deals with
interest on contracts and agree-
nu-nts, as the lirst section con-
clusively shows." The Manitoba
" Legislature was not dealing, or
professing to deal, \vith the question
of interest, but was dealing exclu-
sively with taxation under muni-
cipal in.stitutions, and the extra tax
which the court below has chosen
to call interest the legi.shittu'e has
not so denominated, but which the
legislature imposed, no doubt, as I
have said before, as a means of
securing payment, and also of ap-
proximately equalizing the rate be-
tween defaulters and those paying
promptly. How can this be con-
sidered in any other light than as
incidental to the power to le\y the
assessment as authorized by law,
the principal nmtter of this Act
being municipal taxation and not
interest, and so prevent the defaulter
from gaining an undue advantage
o\er the ratepayer who pavs
promptly ? And who more com-
petent to apportion this than the
local legislature, and who more
iiicom[)eteut to deal with tins purely
municipal matter than the Dominion
Parliament, charged with the affairs
affecting the peace, order, and good
government of the Dominion ? Tiie
B. N. A. Act giving the power of
legislation over direct taxation
within the provinces in order to the
raising of a revenue for provincial
purposes, and over municipal insti-
tutions in the provinces, exclusiv ely
to the provincial legislatures, why
should tho.se bodies be restricted or
limited as to the manner or extent to
which those powers should be exer-
cised ? Why should they not be al-
lowed to provide for the contingency
of a failure to pay the taxes on the
(hiys and times ti.xed, and to make
pro\ ision in such an «'vent for an
a(Ulitional rate or tax." Appeal al-
lowed. Strong, Fournicr, Tascher-
eau, and Patterson, JJ., concurred.
Gwynne dissented. Ross !•. Tor-
rance overruled. 2 Legal News, 186.

78 B.N. A. ACT, s. 91 (20), (21).— PROV. BANKRUPTCY ACTS B BX.A.

(20.) Legal tender.!

(21.) Eanki'uptcy and insolvency.^

Att.-Gen. of
Ontario v.
Att.-Oen. ok
Dominion.

1 The snb-seetion following sub-
sections 18 and 19 shows that the
mind of the legislature in placing
these under the direction of the
Dominion Pnrlininent, intended to
give that parliament power to regu-
late them as to dealing and contracts
between individuals and not under
nuinicipal institutions. Sec ahorr,
Ritchie, C.J., in Lynch v. I'he
Canada N. W. Land'Co.

^ See Constitution of Aineiica,
art. 1. s. 4.

A Dominion Parliament Act re-
hiting to bankruptcy is intrn vires,
although it may interfere with pro-
perty and civil rights in the pro-
vinces, inasnmch as bankruptcy
and insolvency form one of the
classes of matters eniunerated in
this sub-sec. Cushing r. Dupiiy
(see p. 80) ; followed in Tennant
r. Union Bank of (^uiada, in C.
App., Out., Jan. 8, 1802, 10 ().
A. R. 1; in P. C. Dec. 9, 1893,
[1894] A. C. 31 ; 03 L. J. P. V.
25; 69 L. T. 77).

Where there is no Act of the Do-
minion Parliament in existence as
regards banki'uptcy and insolvency,
the provincial legislatures may deal
with ancillary provisions to i)revent
the scheme of a provincial .system
of bankruptcy legislation being de-
feated ; and it may be necessary to
deal with the effect of executions
and other matters,andthepi'o\ incial
Icgislat ures have f ul 1 power t o do this
until a Dominion Act is in existence
dealing with such matters as part
of a bankruptcy law ; and on that
taking place, the provincial legis-
lature would be precluded from
interfering with that legislation, in-
asmuch as such legislation would
affect the Bankruptcy Law of the
Dominion. See Att.-Gen. of On-
tario v. Att.-Gen. for Dominion of
Canada, in Ct. App., Ont., 9 May
1893,20 0. A R. 480; in P. C.
February 24, [1894] A. V. ISO;
63 L. j; P. C. 59 ; 70 L. T. 538,

in which case the validity of B, S
O., 1887, c. 124., 'An Act respect-
ing assignments and preferences bv
insoh ent persons,' was raised. Sec-
tion 9 enacted that 'an assignmeui
for the general benefit of creditor?
under this Act shall take precLMlenw
of all judgmentsandof all executions
not completed by j)ayment, subject
to the lien, if any, of an execution
creditor for his costs, where tlicn
is but one execution in the sheriff.
hands, or to the lien, if any, of tin
creditor for his costs, who has tlii
lirst execution in the sheiiU'j
hands.' In the Ontario Court ii
was held by Hagarty, C.J., ami
Burton, J. A., that the Act w>
ultra vires. MacLennan dis.sented,
and 0.sler, .IJ.A., gave no opinion.
Lord Hei-schell, L.V., in deliver-
ing a reversing judgment [at wliicli
w<'re also present Lords Watson,
Macnaghten, and Shand, and S\t \
Richard Couch], and after (leniin»
with the history of the legislation in
relation to this and cognate niattii-
both in the provinces and in tlie
Dominion, said : " Their Lor(lsLi|i! j
proceed uow to consider the inituiv
of the enactment said to lie iillni
vires. It postpones judgments ami
executions not completely execiiteJ
by payment to an assignment lor
benefit of creditors under the Act
Now there can be no doubt tiiat
the effect to l)e given to judginent*
and executions and the manneiiiuil
extent to which they may be made
axailalile lor the recovery of debts
are prima facie within the legis-
lative powt'i'ofthe provincial pmiia-
nient. Executions are a part of
the machinery by which debts are
reco\ ered, and are subject to regu-
lations by Parliament. A creditor
has no iidierent light to have lii<
debt sjitisfied by means of a levj
by the sheriff, or to any priority
in respect of such levy. Tiie exe-
cution is ii mere creature of tlif
law which may determine ami

BX.A. ACT, s 91 (21).— WHERE NO DOMINION ACT. 79

irgiiliitt! the rights to which it
crivcsrise. The Act of 1887, which
abolisliPil priority hs niiioiij^st exe-
cution creditors, provided ii simple
means by whicli cNory creditor
niidit ohtaiii a share in the distri-
|)iition of moneys levied under an
execution by any particular (rredi-
tor. The other Act of the same
year, containing the section which is
impeached, goes a step further, and
ffivcs to all creditors under an
assignment for their general benefit
a right to a rateable share of the
assets of the debtor, including
tliose which have been seized in
execution. But it is argued inas-
much as this a.ssignment contem-
plates the insolvency of the debtor,
and would only be made if he were
insolvent, such a provision purports
to ileal with insolvency, and there-
fore is a matter exclusively within
the juri.sdiction of the Dominion
Parliament. Now it is to be ob-
served that an assignment for the
general benefit of creditors has long
been known to the juris])i-udenceof
this country and also of Canada,
and has its force and effect at com-
mon law (juitc independently of
any sy.stoni of bankruptcy or insol-
vency or any legislation relating
thereto. So far from being re-
^'arded as an essential part of the
liankruptcy law, snch an assign-
ment was made an act of bank-
ruptcy on which an adjudication
might be formed, and by the law
of the province of Canada which
prevailed at the linn, when the
Dominion Act was passed, it was
one of the grounds of an adjudica-
tion of insolvency. It is to l)e
ioliserved that the word ' bank-
Iruptcy' was apparently not used
I in Canadian legislation, but the
I insolvency law of the province of
I Canada was precisely analagous to
jwhat was known in England as
jthe bankruptcy law. Moreover,
the operation of an assignment
jtiir the henefit of creditors was
Ipreeisely the same, whether the
l«s«ignor was or was not in fact
linsolvent. It was open to any

debtor who might deem his insol- Att.-Gen. of
vency doubtful, or who desired in "^'tabio v.
that ca.se that his creditors should i\";i^,y^." *"'
lie equitably dealt with, to make
an assignment for their benefit.
The validity of the a.ssignment and
its effect would in no way depend
on the insolvency of the assignor,
and their Lordshii)s think it clear
that the 9th section would equally
apply whether the assignor was
or was not insolvent. Stress was
laid on the fact that the enact-
ment relates only to an assignment
under the Act containing the sec-
tion, and that the Act prescribes
that the sheriff of the county is to
be the assignee unless a majority
of the creditors consent to some
other assignee being named. This
does not appear to their Lordships
to be material. If the enactment
would have been intni vires s\ip-
posiug section 9 hail applied to
all assignments without these re-
strictiou.s, it seems difficult to con-
tend that it becomes tiltrn vires by
rea.son of them. Moreov<'r,it istobe
observed that by sub-sec. 2 of sec.
3, assignment for the benefit of
creditors not made to the sheriff or
to other persons with the prescribed
consent, although they are rendered
void as against assignments so
made, are nevertheless, unless and
until so avoided, to be ' subject in
other respects to the provisions of
the Act'.' At the tinie when the
B. N. A. Act was pas.sed bank-
ruptcy and insolvency legislation
existed, and was based on very
similar provisions both in Great
Britain and the province of Canada.
The English Act then in force was
that of 1861. That Act applied
to traders and non-traders alike.
Prior to that date the operation of
the Bankruptcy Acts had been
confined to traders. The statute
relating to insolvent debtor.^ other
than traders had been designed to
proiide for their release from cus-
tody on their making an assign-
ment of the whole of their estate
for the benefit of their creditors.
It is not necessary to refer in de-

Att.-Gf.n. op
Ontario v.
Att.-Gkn. cii-
uomisiox.

i! :?

! S

CUSIIIN'U I'.

Di-pcY.

B.N.A. ACT. s. 91 (21) —APPEALS TO P.

tail lo tlio piovisioiiH of the Act of
18G1. Tt is enough to say that it
])rovi(l<'(l for a logai adjudication in
bankruptcy, with the consequence
that tlic hanki'upt was divested of
all liis property and its distrihntion
anionjjst his creditors was provided
for. It is not necessary in their
Lordships' oi)inion, nor would it lie
expedient, to attempt to define what
is covered by the words ' hank-
riiptcv' and ' insolvency ' in section
91 of the B. N". A. Act. But it
will be seen that it is a feature com-
mon to all the systems of l)aid{-
ruptcy and insolvency to which
reference has been made, that the
enactments are designed to secure
that in the case of an insolvent
person his assets shall be rateably
distributed amongst his creditors,
whether he is willing that they
.shall be so distributed or not. Al-
though i)rovision may be made
for a voluntary assignment as an
alternative, it is only as an alter-
native. Tn reply to a (piestion put
by their Lordsni])s, the learned
counsel for tb(! respondent were
unable to point to any scheme of
bankruptcy or insolvency legisla-
tion which did not involve .some
power of compulsion by process of
law to secure to the creditors
the di.stribntion amongst them of
the insolvent debtor's estate. In
their Lor 'ships' opinion these con-
siderations must be borne in mind
when interpreting the words 'bank-
ruptcy ' and ' insolvency ' in the
B. N. A. Act. It appears to their
Lordships that such ])rovisions as
are found in the enactment in
question, relating as they do to
assignments purely volinitary, do
not infringe on the exclusive legis-
lative power conferred on the Do-
minion Parliament. They would
observe that a system of bank-
ruptcy legislation may frequently
require various ancillary provisions
for th^ . •'• of preventing the

scbv, '1 • <■ vxi being de-

fe I . id '. necessary for

th: ;> > ; O'- i ■ .....1 vith the effect
of ciie' u'': : . • fher matters

which wouhl otherwise be within
the legislative competence of the
provincial legislature. Their Lord-
ships do not doubt it would Iw
open to the Dominion Parliauiont
to (leal with such matters as pint
of a bankruptcy law, and the pio.
\incial legislatures wotdd dou'llpss
lie then precluded from interferiiif;
with this legislation, inasmuch us
such interference would affect tlio
bankruptcy law of the Dominion
Parliament. But it does not fol-
low that such subjects as might
properly be treated as ancillary to
such a law, and therefore within
the {)owers of the Dominion Pnr-
liament, are excluded from tlu'
legislative authority of the pro-
\incial legislatiire when there is
no bankruptcy or insolvency Ipgis-
lation of the Dominion Parliaiiioni
in existence." Decision appciilcii
from reversed. [Sfc full r('|)oit,
sub-sec. .'?, .see. 92.]

CisirixG V. DiTPUY, in (^. B
(Quebec, 22 Mar. 1878, 22 L. C.
J. 201 ; in P. C. April 1.3, im\
o App. Cas. 409 ; 49 L. J. P. (.'.
().■? ; 42 L. T. 445, was an nppo.il
from a judgment of the Quoon'*
Bench, Quebec, revei'sing a judg-
ment of the superior court, whicli
had been given in the jippel-
hint's favour, in certain in.sol-
\ ency proceedings instituted imdir
the Dominion Ac', respecting insol-
vency, 38 Vict. c. 16. In these
the appellant sought to obtain an
order that the respondent, the
official receiver on the estate of
the insolvent Hrm, should deliver
up certain pi'operty seized by him
as such assignee under a writ of
attachment, on the ground tlint it
had been sold to the appellant by
the insolvents before their insol-
vency. The appellant made nii
application to the Queen's Bench
for leave to appeal to Her Majesty
in Council, which was refused on
the ground that under the Insol-
vency Act its judgment was final.
Bv the 1 28th sec. of the Insolvency
Act," 38 Vict. (Dom.) c. 16., "In

B.N.A. ACT, 9. 91 (21) —APPEALS BY PREROGATIVE. 81

the province of Quebec all decisions
by a judge in chambers in matters
of insolvency shall be considered
as judgments of the superior court ;
and any final order or judgment
rendered by such judge or court
may be mscribed for revision, or
may he appealed from by the
parties aggrieved, in the same cases
and in the same manner as they
might inscribe for revision or
appeal from a final judgment of
the superior court in ordinary
cases under the laws in force when
such decision shall be rendered."

By the 28th section of the 40
Vict. (Dom.) c. 41 ., it is enacted that
the 128th section shall be amended
by adding thereto, " The judgment
of the court to which under this
section the appeal can be made
shall be final." The court in the
province of Quebec is the Queen's
Bench.

Sir Montague E. Smith, who
delivered the judgment of the
Privy Council [there being also
present Sir James Colvile, Sir
Barnes Peacock, and Sir Robert
Collier] said : " An application to
the Court of Q. B. Ontario for leave
to appeal to Her Majesty in Coun-
cil was rofused on the ground that
under the Insolvency Act its judg-
ment was final. The appellant
. then presented a petition to Her
Majesty for special lea^•e to appeal,
which Her Majesty was advised by
their Lordships to grant, reserving
to the respondent power to raise at
[the hearing the question of her
jui'isdiction to enterttiin the appeal.
I Tliat question, which has been
i fully argued at the Bar, raises two
I points : first, whether the Court of
Queen's Bench Avas right in holding
[that the appeal to Her Majesty in
I Council, given rfe 7«re by art. 1178
of the Code of Civil Procedure,
I from final judgments rendered on
[appeal by that court is taken away
jby the Insolvency Act; and,
Isecondly, if that be so, whether
Ithe power of the Crown by virtue
lot its prerogative to admit the
pppeal is affected by that Act."

S 2340.

[Reads 128th sec. Insolvency Act, Ccshino v.
38 Vict. (Dom.) c. 16., and sec. Dcpoy.
28 of the amending Act, 40 Vict.
c. 41.] " The latter is, 'The judg-
ment of the court to which,
under this section, the appeal can
be made shall be final.' This court
in the province of Quebec is the
Court of Queen's Bench. The whole ,
question turns on these added words,
and in considering their effect on
the right of appeal to the Crown
given de jure by the Code, two
things are to be regarded — (1) The
power of the Dominion Parliament
to abrogate this right ; and (2) if it
had the power, whether it intended
to exercise it. The first of these
questions depends upon the con-
struction of the B. N. A. Act, 1867,
which confers and distributes legis-
lative powers. By section 91 of that
Act, exclusive legislative authority
in certain matters is conferred upon
the Parliament of Canada ; and by
section 92 exclusive authority in
certain others upon the provnncial
legislatures. [Reads sec. 91 and
sub-sec. 21 ; sec. 92 and sub-sees.
13, 14.] It was contended for the
appellants that the provisions of the
Insolvency Act interfered with pro-
perty and civil rights, and was
therefore ultra vires. This objec-
tion was very faintly argued, but
it was strongly contended that the
Parliament of Canada could not
take away the right of appeal to
the Queen from final judgments of
the Court of Queen's Bench, which,
it was said, was part of the procedure
in civil matters exclusively assigned
to the legislature of the province.
The answer to these objections is
obvious. It would be impossible
to advance a step in the construc-
tion of a scheme for the adminis-
tration of insolvent estates without
interfering with and modifying
some of the ordinary rights of
property and other civil rights,
nor without providing some mode
of special procedure for the vesting,
realization, and the distribution of
the estate, and the settlement of the
liabilities of the insolvent. Pro-

^1!

B.N.A. ACT, 8. 91 (21).— THE WOBD "FINAL."

CUSHINO V.
DUPCY.

cedure must necessarily form nn
essential part of any law dealing
with insolvency. It is therefore to
be presumed, indeed it is a neces-
sary implication, that the Imperial
.statute, in assigning to the Do-
minion Parliament the subject of
bankruptcy and insolvency, inten-
ded to confer on it legislative
power to interfere with property,
civil rights, and procedure within
the provinces so far as a general law
relating to those subjects might
affect them. Their Lordships
therefore think that the Parlia-
ment of Canada would not infringe
the exclusive powers given to the
provincial legislatures, by enacting
that the judgment of th,e Court
of Queen's Bench in matters of
insolvency should be final, and
not subject to the appeal as
of right to Her Majesty in Coun-
cil allowed by article 1178 of
the Code of Civil Procedure. Nor,
in their Lordships' opinion, woulil
such an enactment infringe the
Queen's prerogative, since it only
provides that the appeal to Her
Majesty given by the Code, framed
under the authority of the pro-
vincial legislature, as part of the
civil procedure of the province,
shall not be applicable to judg-
ments in the new proceedings in
insolvency which the Dominion
Act creates. Such a provision in
no way trenches on the Koyal pre-
rogative."

" Then it was contended that if
the Parliament of Canada had the
power, it did not intend to abolish
the right of appeal to the Crown.
It was said that the word ' final '
would be satisfied by holding that
it prohibited an appeal to the
Supreme Court of Canada estab-
lished by the Dominion Act of 38
Vict. c. 11. Their Lordships think
the effect of the word cannot be so
confined. It is not reasonable to
suppose that the Parliament of
Canada intended to prohibit an
appeal to the Supreme Court of Ap-
peal recently established by its own
legislation, and to allow the right

of immediate appeal from the Court
of Queen's Bench to the Queeu to
remain. Besides, the word 'final'
has been before used in colonial
legislation as an apt word to ex-
clude in certain cases appeals as of
right to Her Majesty. [See Lower
Canada Act, 3-1 Geo. 3. c. 6. s. 30]
Such an effect may, no doubt, be
excluded by the context, but tliere
is none in the enactment in ques-
tion to limit the meaning of the
word. For these reasons their
Lordships think that the judges
below were right in holding that
they had no power to grant leave
to appeal. The question of the
power of the Queen to admit the
appeal as an act of grace, gives
rise to different considerations. It
is, in their Lordships' view, im-
necessary to consider what powers
may be possessed by the Pnrlia-
ment of Canada to interfere with
the royal prerogative, since the 28tli
section of the Insolvency Act does
not profess to touch it ; and thev
think, upon the general principle
that the rights of the Crown can
only be taken away by express
words, that the power of the Queen
to allow this appeal is not affected bv
that enactment. In consequence,
however, of the decision in Cuvillier
V. Aylwin, 29 Nov. 1832, 2 Knnpp'>
P. C. 72, which has been relied on
as an authority opposed to this
view, it became necessary to review
that case in connection with subse-
quent decisions on the subject,
The question in Cuvillier v. Ayl-
win arose upon the Lower Canada
Colonial Act, 34 Geo. 3. c. G. s.30,
which enacted that the judgment
of the Court of Appeal shoidd be
final in all Cases under the value at
£500, and an application for
special leave to appeal in a case
under that value was refused bv a
Committee of the Privy Council.
The remarki) attributed to the
Master of the Rolls [Leach] in his
judgment rejecting the petition are
directed to one aspect only of
the question, namely, the power
of the Crown with the other

BX.A. ACT, s. 91 (21) —CAIRNS, L.C., on PREROGATIVE. 83

;he Court
^ueeu to
■d 'final'
colonial
rd to ex-
eals as of
Jee Lowfv
. 6. s. 30.]
doubt, lie
, but there
t in ques-
ng of the
isons their
[be judges
Dlding that
^rant leave
ion of the
J admit the
rrace, gives
■rations. It
' view, iin-
vhat powers
the Pnrlia-
itpvfere with
incethe28tli
icy Act does
it; and they
,ral principle
p Crown can
by express
of the Queen
otaffectedhy
consequence,
n in Cuvillier
;2, 2 Knapp's
een relied on
osed to this
iary to review
1 with subse-
the subject,
illier v. Ayl-
ower Canada
3. c.G. 5.30,
he judgment
eal should be
the value af
dication for
sal in n case
refused by a
•ivy Council
tted to tbe
each] in his
[e petition are
)ect only o!
the pow«
the other

brandies of the legislature to de-
prive tbe subject of one of his
rights. No allusion was made to
the principle that express words
are necessary to take away the
prerogative rights of the Crown,
nor to the provision contained in
tiic statute itself that nothing
therein contained shall derogate
from any right or prerogative of
the Crown. This case, moreover,
it' not expressly overruled, has not
been followed, and later decisions
are opposed to it. [See post, s.lOl.}
"In re Louis Marois, 8 Feb.
1862, 15 Moore's P. C. 189,
upon tin application for leave to
appeal from a judgment of the
Court of Queen's Bench for Lower
Canada, Lord Chelmsford, in giving
tlic judgment of this Committee,
after stating that in Cuvillier v.
Aylwin the very point was de-
cided against the petitioner, said :
' If the question is , to be concluded
by that decision, this petition must
be at once dismissed; but upon
turning to the report of the case,
their Lordships are not satisfied
that the subject received that full
and deliberate consideration which
the gi-eat importance of it deman-
ded. The report of the judgment
of the Master of the Rolls is con-
tinued in a few lines, and he does
not appear to have directly adverted
to the effect of the proviso contain-
ed in the 43rd section of the Act
on the prerogative of the Crown.'
Leave to appeal was granted in
that caise, subject to the risk of a
petition being presented to dismiss
the appeal as incompetent. Al-
though their Lordships, in granting
this leave, said that they desired
to intimate no opinion whether the
decision in Cuvillier v. Aylwin
could lie sustained or not, it is
obvious that at the least they re-
garded it as being open to review.
Ill Johnston v. the Ministers of
St. Andrew's Church, in the courts
below, 18 L. J. C. 113; 1 S.
C.R.235; in P. C.Dec. 10,1877,
3App. 159; 37 L. J. P. C. 557;
26 W. R. 359 ; upon an appli-

cation for special leave to appeal Cushinq f.
against a judgment of the .Supreme Dupijt.
Court of Canada, the effect of the
47th section of the Act establishing
that court, which enacted that its
judgment should be final and con-
clusive, saving any right which
Her Majesty may be graciously
pleased to exercise by virtue of her
Royal prerogative, came in question,
and the Lord Chancellor [Cairns],
in giving the judgment of this Com-
mittee, said : • Their Lordships
have no doubt whatever that, as-
suming, as the petitioners do
assume, that their power of appeal
as a matter of right is not con-
tinued, still that Her Majesty's
prerogative to allow an ajipeal if
so advised is left entirely un-
touched and preserved by this sec-
tion.' Although leave to appeal
was in this instance refused, on the
ground that the case was not a
proper one for the exercise of the
prerogative, the opinion cited above
is virtually opposed to the decision
in Cuvillier v. Aylwin, where, it is
to be remembered, the action in
question likewise contained a saving
of the prerogative of the Crown.
Another case lately before the
Committee requires consideration.
Theberge and another v. Landry,
in Superior Court, Quebec, 29 May
1876, in P. C. 7 Nov. 1876, 2 App.
Cas. 102 ; 40 L. J. P. C. 1 : 35
L. T. 640. It was an application
for special leave to appeal against
a judgment of the Superior Court
of Quebec upon an election pe-
tition, by which the applicant had
been unseated for corrupt practices.
By the Quebec Controverted
Elections Act, 1875, 38 Vict. c. 8.,
the decision of controvered elec-
tions, which formerly belonged to
the legislative assembly itself, Avas
conferred upon the superior court,
and by sec. 90 of the Act it was
enacted that the judgment of that
court sitting in review should not
be susceptible of appeal. It was
held by this Committee that there
was no prerogative right in the
Crown to review the judgment of

F 2

I I!

Cdshimo V,

DOPOT.

I illll

L'Union St.
Jacques db
montbeal ('.
Uelisle.

B.N.A. ACT, s. 91 (21). -INSOLVENCY OF LOCALS,

the superior court upon an election
petition, and the application was
refused. This decision turned on
the peculiar nature of the jurisdic-
tion delegated to the superior court,
and not merely on the prohibitory
words of the statute. It was dis-
tinctly and carefully rested on the
ground of the peculiarity of tho
8ubject-matter, which concerned
not mere ordinary civil rights, but
lights and privileges always regard-
ed as pertaining to the legislative
assembly in complete independence
of the Crown, so far as they proper-
ly exist ; and consequently, it was
held that, in transferring the de-
cision of these rights from the
assembly to the superior ,court it
could not have been intended that
the determination in the last resort
should belong to the Queen in
Council. But whilst coming to this
decision, the Lord Chancellor
[Cairns], in giving the judgment
of the Committee, affirmed tlie
general principle as to the preroga-
tive of the Crown. ♦ Their Lord-
ships wish to state distinctly that
they do not desire to imply any
doubt whatever as to the general
principle that the prerogative of the
Crown cannot be taken away ex-
cept by express words; and they
would be prepared to hold, as often
a& has been held before, that in any
case where the prerogative of the
Crown has existed, precise words
must be shown to take away that
prerogative.' It was not suggested
that an appeal would not have lain
to the Queen in Council under the
Insolvency Act, 1875, and it was
not until two years afterwards that
the amending Act of 1877, which
is said to have taken it away, was
passed. The learned counsel for
the appellant drew attention to the
Act of the Parliament of Canada,
31 Vict. c. 1., which enacts rules of
interpretation to be applied to all
future legislation, when not inconsis-
tent with the intent of the Act or
the context. Sub-sec. 33 of sec. 7 of
that Act is as follows : — * No pro-
vision or enactment in any Act shall

affect in any manner or way what-
ever the rights of Her Majesty,
her heirs or successors, unle.is it is
expressly stated therein that Her
Majesty shall be bound thereby,'
The Insolvent Acts are to be con-
strued with reference to this pro.
vision, which is substantially an
affirmance of the general principle
of law already adverted to. Ap-
plying that principle to the enact-
ment in question, their Lordships
are of opinion that, as it contains
no words which purport to derogate
from the prerogative of the Crown
to allow as an act of grace appeals
from the Court of Queen's Bench
in matters of insolvency, her au-
thority in that respect is unaffec-
ted by it. The order for leave to
appeal granted in the present case
will consequently stand."

His Lordship then went into the
merits of the case, the result being
the affirmance of the decision ap-
pealed from.

In L'Union St. Jacques de
Montreal v. Belisle, 15 L.
C. .7. 212, in Quebec Q. B. 20
Sept. 1872; in P. C. July 8,
1874, L. E. 6 P. C. 31 ; 31 L. T
HI; 22 W. R. 933, it was held
by the Judicial Committee, revers-
ing the Court of Queen's Bench,
appeal side, in Lower Canada, that
the Act of the provincial legisla-
ture of Quebec, 33 Vict. c. 58., to
relieve the financial embarrassment
of a local society, related to "a
matter merely of a local or private
nature in the province" within
sec. 92 of the B. N. A. Act, 1867,
and as such was within the legisla-
tive capacity of the Quebec Pro-
vincial Legislature, and did not
fall within sec. 91 — Bankruptcy
and insolvency.

There the respondent sued the
appellant society to recover an in-
stalment of an annuity to which
she was admittedly entitled under
the rules of the society. The ap-
pellant pleaded the provincial Act,
m which the society was authomed
to pay the respondent $200 in heu

B.N.A. ACT, 8. 91 (21).— WINDING UP BY DOM.

of all benefits, and if she refused to
iiccept it, to place it on deposit and
|m,v the respondent the interest.
The respondent contended that the
Act was unconstitutional.

Lord Selborne, in delivering the
judgment of the Committee, said
(p. 37 of L. R.) : " The fact that
this particular society appears,
upon the face of the Act, to have
bten in a state of embarrassment,
aud in such a financial condition
that, unless rel'" ved by legislation
it might have been likely to come
to ruin, does not prove it was in
any legal sense within the category
of insolvency ; and, in point of
fact, the whole tendency of the Act
is to keep it out of that category,
and not to bring it into it. The Act
does not terminate the company, it
does not propose a final distribution
of its iissi is on the footing of insol-
vency or bankruptcy ; it does not
wind it up. On the contrary, it
contemplates its going on, and
possibly, at some future time, re-
covering its prosperity, and then
these creditors, who seem on the
face of the Act to be somewhat
summarily interfered with, are to
be reinstated."

On sec. 92, Lord Selborne said
(p. 35): "The scheme of the 91st
and 92nd sees, is this. By the 91st
sec. some matters — and their Lord-
ships may do well to assume, for the
argument's sake, that they are all
matters except those afterwards
dealt with by the 92nd section —
their Lordships do not decide it —
certain matters, being upon that as-
sumption all those which are not
mentioned in the 92nd section, are
reserved for the exclusive legislation
of the parliament of Canada, called
the Dominion Parliament ; but be-
yond controversy there are certain
other matters, not only not reser-
ved for the Dominion Parliament,
but assigned to the exclusive power
and competency of the provincial
legislature in each province.
Among those the last is thus ex-
pressed—' generally all matters of
R merely local or private nature in

the province.' If there is nothing L'Uiiioii St.
to control that in the 9l8t section, JAfocw db
it wo)dd seem manifest that the 5°^"!™"'' *'*
subject-matter of this Act, 3.3 Vict,
c. 68., is a matter of mere local or
private nature in the province, be-
cause it relates to a benevolent or
benefit society incorporated in the
city of Montreal, within the pro-
vince, which appears to consist
exclusively of members who would
be sahjectprimd facie to the control
of the provincial legislature." . . .
"Clearly this matter is private;
clearly it is local, so far as locality
is to be considered. . . . And
unless, therefore, the general eflfect
of that head of sec. 92 is for this
purjxyse qualified by something in
sec. 91, it is a matter not only
within the competency, but within
the exclusive competency of the
provincial legislature. Now sec. 91
qualifies it undoubtedly, if it be
within one of the different classes
of subjects there specially enume-
rated, because the last concluding
words of sec. 91 — [reads the end of
sub-sec. 29, sec. 91]. But the
onus is on the respondent to show
that this, being of itself of a local
or private nature, does also come
within one or more of the classes
of subjects specially enumerated in
the 91st section." See this case ap-
proved in Dow V. Black, ante, p. 67.

In Quirt v. The Queen, Nov. Qciht v. The
16, 1891, 19 S. C. R. 510, see 17 ^^^•
O. A. R. 421 ; 17 O. R. 615, it
was held the Dominion Parlia-
ment was within its rights in pass-
ing Acts (1) incorporating trustees
and giving them (31 Vict. c. 17.)
authority, so far as necessary for
the winding-up, to carry on the
Bank of Upper Canada, then insol-
vent; and (2) transferring (33
Vict. c. 40.) to the Dominion Go-
vernment all the property of the
bank vested in the trustees. It
was held, secondly, that after the
property of this bank became
vested in the DominioD Govern-
ment, a piece of land included there-

ij I

86 B.N.A. ACT, H. 91 (21).— WINDING-UP BY LEGHS.

Quirt v. The in wna not liable to taxes, it having

QuBBN, become Crown land.

Sir W. Ritchie, C.J., said :
"I cannot see how it can be con-
tended that an Act i'or the settle-
ment of the affairs of the Bank of
upper Canada, an insolvent insti-
tution, is ultra vires of the Parlia-
ment of Canada, to which body is
confided the exclusive authority to
deal with and legislate on banking,
incorporations of banks and bank-
ruptcy, and in.solvency. If this
is so, I think it e«iually clear
that the legislature of Ontario
could pass no Act repealing, al-
tering, or interfering with the pro-
visions of the Act, and so could not
have passed an Act similar in its
terms to the 33 Vict. c. 40., ' An
Act to vest in the Dominion, for
the purpcses therein mentioned,
the property and powers now ves-
ted in the trustees of the Bank of
Upper Canada.' Therefore, it
necessarily follows that the legisla-
tive power to do so belongs to the
Dominion Parliament alone."

Strong, J., rested his opinion
on the 21.st sub-sec, see. 91.
That sub-section " gives to Parlia-
ment the exclusive power to pass
laws relating to bankruptcy and
insolvency. That the Acts of
Parliament in question come
within the literal meaning of these
terms appears to me very plain.
The bank was insolvent, and the
realization and distribution of its
assets was a matter consequent
upon that insolvency. The only
reasonable ground upon which such
enactments as the.se under con-
sideration could be rejected from
the category of bankruptcy and
insolvency statutes authorized by
sec. 91, sub-sec. 21, would be that
they were special and not general
laws, and therefore were to be
considered as assigned to the pro-
vincial legislature under the 16th
sub-sec, sec. 92, which authorizes
legislation on matters of a local
and private nature within the pro-
vince. The answer to this, how-
ever, is that any matter which

comes wiwhin the terms of any of
the subjects enumerated in sec. 91,
although in other respects it iiiiglit
be claased under the head of loiul
and private legislation, is expressly
ixcepted from the powers ol' tlii
provincial legislatures by tin l;i:;
sub-section of sec. 91. [Reads it]
Then it is said this ela.ss of lo>;islii.
tion is appropriated to tlie pro-
vinces under tlie head of ' proporty
and civil rights.' This argunu'iit,
however, would prove too nuuli,
since general legislation in matlci^
of bankrupty and insolvency, wiiitji
.sub-sec. 21 undoubtedly confers on
the Dominion, uuist always be nn
interference with property, then it
can hardly be said that such spttinl
legislation as this respecting a Imnk
incorporated under the statutes of
the Dominion would be within the
competency of a provincial legisla-
ture ; the incongruity of such a
construction, when we consider
that the right to incorporate banks
is exclusively in the Dominion,
would alone be fatid to such con-
tention, more especially as the Ail
of Incorporation itself might will
provide for the winding-up of n
particular bank in cose of insol-
vency." As to the case of Union
St. Jacques v. Belisle [see above],
his Lordship said : " So far from
that being an authority for the
appellant, it supports the conclUciion
I have reached. The Act of the
Quebec Legislature questioned in
that case was held to be intra viret
upon the distinction expressly taken
in the judgment that it was not
an Act providing for a winding-
up as in the case of bankruptcy or
insolvency, but was rather an
enactment designed for the pur-
poses of avoiding such a result. I
therefore consider the Privy Coun-
cil as indicating that a special
stiitute providing for the winding-
up of an incorporated company
would be bankruptcy or insolvencj |
legislation. Next it is said the in-
terest vested in the Crown under |
the mortgage made by Anderson is
hable to taxation under the Ontario

i;- ii i'

IGIS.

I of any oi
in Bfc. 91,

itH it uiiglit
id of locul
s expressly
'ers ol' tile
Dy lu< ill;;

[Rends it.]
s of lp;iisln-

0 the pio-
E ' proi)tM'ty
i urguuu'iit,

too niiu'li,

1 in miittei>
ency, wliicli
y coufei's on
ways be nn
erty, then it
such spi'ciiil

icting a Imnk
! statutes of
le within the
ncial legisla-
f of such a
,ve consider
porate banks
! Dominion,
to such con-
,y i\8 the Alt
' might wi'll
liug-up of a
(ise of insol-
se of Union

[see above],

So far from
rity for the
he conclusion
e Act of the
questioned in
be intra vim
spressly taken
it it was not
r a winding-
bankruptcy or
,8 rather an

for the pur-
h a result. I
e Privy Coun-
[lat a special

the winding-
ited company

or insolvencj
, is said the in-

Crown tindei
ay Anderson is
der the Ontario

B,N.A. ACT, 8. 01 (21).— INSOLVENT FOREIGNERS. 87

Assossiiieiit Act." His Lordship
agreed it was not liable, and coii-
tinuiMl: "All property vested in the
Crown is exempt from taxation un-
lcs.s made liable by some express en-
iiclnicnt. Ncstatiite can be pointed to
making the beneficial interest, which
tbe Crown, as mortgagees, undoubt-
ciliy had in these lands, liable to
assessment for taxes, and that is suffi-
cient to dispose of the case, I am
also of opiniou, in the absence of
express enactment, no difference
ought to l)e made between property
vested in the Crown as a trustee
and that in which it had a beneficial
iuterest. The Crown is entitled to
tlip prerogative of priority of pay-
me"* out of assets, even though it
sues as n mere trustee, as in the
case of an action on a recognisance
given for the benefit of subj?cts,
and I can see no reason why the
analogy should not prevail in the
present case. However, the Crown
is fur from being a mere trustee in
this case. The statute of 1870
(33 Vict. c. 40.) I'ecites that it is
the largest creditor ; it therefore has
a heneficial interest in the assets of
the bank."

In Allen v. Hanson, Dec. 11,

1890, ap[)ciil iVom Q. B., Quebec,
16Q.L.R.7!); lHS.C.R.667,itwas
held the Dom. Winding-up Act, R.
S. C. c. 129. (47 Vict. c. 39.), which
provides that the Act " shall apply
to incorporated trading companies
doing business in Canada whereso-
ever incorporated," and •' which are
insolvent," was intra vires of the
Dominion ; and that a winding-up
order of the Scottish Canadian
Asbestos Co. under the provision
of the above Act was good. The
company in question was incorpo-
riUed under the Imperial Companies
. Acts, 1862-7, having its head office
, m Glasgow, Scotland, but its chief
I business was carried on at Artha-
I taska, in Canada. Proceedings
I had been taken in Scotland for the
[ winding-up of its affairs.

Sir W. Ritchie, C. J., after citing
I Matheson Bros., 27 Ch. D. 225, and

was

In re Commercial Bank of South
Australia, 33 Ch. D. 174, said:
"There is jurisdiction to make this
winding-up order, which would be
ancillary to the winding-up in Scot-
land, for the purpose of getting in
the Canadian assets and settling the
list of Canadian creditors, as in re
Corsellis, 33 Ch. D. 160, the wind-
ing-up in England was ancillary to
winding-up in Australia for the
.same purpose, and there need not
be, and should not be, any conflict
between the two courts."

His Lordship then distinguished
the case of Merchants' Bank of
Halifax v. Gillespie, 10 March,
1884, 10 S. C. R. 312, a case
arising under the Dominion Wind-
ing-up Act of 1882, 45 Vict.c. 23.,
which Act did not contain the
above words. Those words were
added by the 47 Vict. c. 39. s. 1,
which repealed the 1st section of
45 Vict. c. 23., but re-enacted the
with the added words,
held there that the Do-
Parliament Act, 45 Vict,
was not intended to ap-
a company incorporated
under the Imperial Joint Stock
Companies Acts, although holding
its chief [)roperty in Canada. Con-
tinuing, his Lordship said : " Inas-
much, then, as the Dominion
statute declares that the Winding-
up Act now applies to all com-
panies which are doing busiiiess in
Canada, and no matter where in-
corporated, there can be no doubt
of the intention of Parliament to
apply the Winding-up Act to
foreign as well as domestic incor-
porated companies, and as I think
such an enactment is within the
legislative power of the Dominion
Parliament, and it l)eing admitted
that this company was cjirrying on
its business and held valuable lands
in Canada, and was insolvent, and
as the provisions of tLe English
Companies Act, 1862, are held to
apply to foreign companies carrying
on business in England, and are
•worked out as nearly as may be, or
left not worked out, as the exigen-

At.I.KN V.

Hanson.

section
It
minion
c. 23.,
ply to

H.N.A. ACT, s. 01 (22).— DOM. PATENT LAW.

Allen v.
Hanson.

l^filP

SCBOOLBRED f.

Clabse.

cies of the c(.se dealt with require;
and innsmuch ns the greater part
of the assets of this company would
seem to be in Canada, there is more
reason why the property within the
territorial limits of the jurisdiction
of the Courts of Canada should be
dealt with under the provisions of
the Canadian Act; in fact, it is
diflicult to see how such property
could be dealt Avith by the English
liquidators; and inasmuch as in
this case it appears the liquidators
under the English A-)t are acting in
concert with the liquidators under
the Canadian Act, I can see no
reason for supposing that any con-
flict can possibly arise whereby this
stockbroker can be in any way
damnified. On the contrary, it
appears to me that this is the most
satisfactory way by which the com-
pany can be wound up, and its
assets realised for the benefit of the
company and all the parties inter-
ested. . . It by no means follows
thatbecau.se all the provisions of the
Act may not be applicable to foreign
cases that those portions which are
should not be acted on."

It was held in Sciioolbred v.
Clarke, June 12, 1890, 17 S. C. K.

265 ; and below 16 O. A. E. 161 ; 14
O.R.618; that a company incorpc-
rated by the Ontario Legislatiu-e niny
be put into compulsory liquidation
under the Dominion Winding-up
Act, 1887, R. S. C. c. 129., which
consolidated and amended the 45
Vict. c. 23. and 47 Vict. c. 39.

The question was raised in Shields
V. Peak, May 1, 1882, 8 S. C. E,
579, whether the Dominion Parlia-
ment could attach a penalty to
traders and domiciled inhabitants of
Canada making purchases, with in-
tent to defraud, outside the Domi-
nion. Votes equal. There Ritchie,
C. J., said : " So soon as a debtor be-
comes insolvent and s.ibject to anv
bankrupt or insolvent law passed
by the Dominion Parliament, ami
proceedings are taken against bim
and his estate, under the provisions
of such enactments, the pro^•ineilll
legislature ceases to have jurisdic-
tion over his civil rights, either in
relation to the disposition of his in-
solvent estate or in relation to his
dealings with his creditors, or theii'
rights or remedies against his per-
son or estate."

(22.) Patents of invention and discovery.^

Smith v.

GOLCIE.

' See American Constitution,
art. 1. s. 8.

See Tenuant v. Union Bank of
Cpnada, P. C. Dec. 9, 1893, [1894]
A. C. 31; 63 L. J. P. C. 25; 69
L. T. 774. That laws made by
the Dominion Parliament on these
subjects are paramount, "and it
would be practically impossible for
the Doninion Parliament to legis-
late upon eithei of these bjects
without affecting the prop ■ y and
civil rights of individuals in the
provinces." See Lord Watson
[ibid.; see also sec. 91, sub-sec 14],

In Smith r. Goldie, June 19,
1882, 9 S. C. R. 46, reversing 7
O. A. R. 628, it was held a patent
for u continuation of known inven-

f :

tions, the continuation being novel
and useful, was valid. It was theiv
also held that to be entitled to a
patent in Cannda, the patentee
must be the first inventor in Can-
ada or elsewhere. Sec. 28 of the
Dominion Patent Act, 35 Vict
c. 26., provided that every jiateni
.shall be subject to the condition thai
at the end of two years from its
date it shall be null and void unless
the patentee shall within thai
period have commenced and thence
continuously carried on the manu-
facture of tlie invention in Canada,
and should also be void if, after the
expiration of 12 years from tiie
patent's date, the jjatentee imports
the indention into Canada, "Pro-
Aided always that in case disputes

arliament, aud

B.N.A. ACT, 8. 91 (22).— DECISION OF PAT. COM.

fhoiild nrise ns to wliether a patent
has or lias not become null and
void under the provisions of this
>t'etion, such disputes shall be
settled by the Minister of Agricul-
tiiiT or his deputy, whose decision
shall be final." Henry, J., said :
"After n lengthened and exhaustive
iuvestigntion, in which both parties
were represented by very able coun-
sel before Mr. Tache, the Deputy
Minister of Agriculture, he, in a
very logical and sound judgment,
JD which he reviewed the law and
commented on the evidence, deci-
ded tliat Smith had not forfeited
liis patent rights or any of them in
auv of the three patents. Tiio
statute makes his decision final ;
and, in \ lew of the whole subject,
I have arrived at the conclusion
that Parliament intended that it
shoidd be so ; and that it was in-
tended solely as a matter for minis-
terial and not for judicial deter-
mination. But in case of any
doubt, on that subject, I will add
that, having well considered the
iiije as presented before him, I
would ha\e come to the same con-
elusion as he did."

In re Bell Telephone Co.,
Xov. 21, 1884, 7 O. R. G05, the
questiou was raised whether section
28 of the Dominion Patent Act,
^j Vict. c. 26., was ultra vires as
creating a court of justice of civil
jurisdiction, infringing sub-sees. 13
and 14, sec. 92, B. N. A. Act.

Osier, J.A., said : " If the duties
('I the minister are executive
merely, then beyond questiou pro-
hibition does not lie; Chabot r.
Lord Morpeth, 15 Q. B. 446-450.
. On the other hand, if the minister
Iwsljoeu legally constituted a forum
iir tribunal for determining these
iiuestion.s, and he is not exceeding
hi> jurisdiction, I have nothing to
dowith the nature of its constitu-
I tion, nor am 1 at liberty to say that
I it is less a court or tribunal because
^'fflo of the powers usually con-
forred upon a court arc wanting, or
bwause the machinery is defec-

tive (if it be so), or its modes
of ascertaining and acting upon
facts different from those em-
ployed in the ordinary tribunals of
the country. Therefore it is be-
side the question to urge that there
is no power to summon witnesses
or to examine them on oath, or
that the court is one of original
jurisdiction from which there is no
appeal, and thus in its very consti-
tution foreign to the spirt of our
laws, as Lord Abinger observed in
ea- parte Smyth, 2 C. M. & K.
748 ; Lord Camden v. Home, 4 T.R.
382. If the tribunal and the power
to constitute it exist, then so long
as it is acting within its jurisdiction
there is no ground for prohibition.
" It appears to me that the minis-
ter has been constituted a judicial
tribunal empowered to decide in rei i
upon the status of the patent. There
are found the three constitutional
elements of a court — The plaintiff,
the party who asserts the nullity ; the
defendant, the patentee who affirms
the validity of the patent ; and the
judge in the person of the minister
empowered to inquire into the facts
to determine the law, and to de-
clare the result by n definite decree."
Then, after quoting an opinion
of a former Minister of Agricul-
ture, J. C. Tache, that the con-
stitution of this tribunal is not of
an unknown character, such juris-
diction being given in many coun-
tries, and that notwithstanding tin-
tribunal was not restricted by strict
rules of practice, yet it was never-
theless bound to abide the rules of
common iustice, the learned judge
continued : " It is not for me to ex-
press an opinion ns to the wisdom
of the policy which dictates the
formation of such a tribunal in a
country and among a people like
ours, accustomed to yield obedience
to laws administered through known
forms and by courts having powers
to compel the attendance and to
sift the evidence of witnesses. . .
On this branch of the case I have
no doubt that, as the ministers' pro-
ceedings are of a judicial chni, 'ter.

In re Bell

TllLEFHONB Co.

1 u

90 B.N. A. ACT, s. 91 (22).— MINISTERIAL or JUDICIAL.

Jn re Bell
Telephone Co.

I !

!^ i

'! i

prohibition will lie, if the section is
ultra vires, or if he is exceeding
the jurisdiction conferred upon him
thereby." Warwick Canal Co. v.
Birmingham Canal Co., 5 Ex. D.
1; 48 L. J. Ex. 550;' 40 L. T.
846. South Eastern Railway Co.
V. Railway Commissioners, 1881, 6
Q. B. D. 586; 50 L. J. Q. B.
201; 44 L. T. 203. North L.
Railway Co. v. Great Northern
Railway Co., 22 Feb. 1883, 11
Q. B. D. 30; 52 L. J. Q. B. 380;
48 L. T. 695; 31 W. R. 490.
Reg. V. Local Government Board,
Nov. 6, 1882, 10 Q. B. D. 309;
52L. J. M. C. 4; 48 L. T. 173;
31 W. R. 72. Cote v. Morgan, 7
S. C. R. 1. Poulin V. Corporation
of Quebec, 9 S. C. R. 185. "The
next question is whether the sec-
tion under consideration is ultra
vires the Parliament of Canada.
Under the B. N. A. Act, section
91, the exclusive authority of the
Parliament of Canada extends to
all matters coming within the
classes of subjects, inter alia, sub-
sec. 22, * patents,' &c."

" Property and civil rights with-
in the province, and the ad-
ministration of justice, includ-
ing the establishment, &c., of
provincial courts, are the matters
assigned exclusively to the pro-
vincial legislatures. Nevertheless,
as regards property and civil rights,
it is settled that the parliament
may legislate where it becomes
necessary to do so for the purpose
of legislating generally and effect-
ually in relation to matters within
their own legislative authority.
Cushmg V. Dupuy, 5 App. Cas.
409-415 [see sub-sec. 21, sec. 91] ;
Valin V. Langlois, 3 S. C. R. 1,
5 App. Cas. 115 [see sec. 41];
Citizens' Insurance Co. v. Parsons,
7 App. Cas. 96, 107, 108, 109 [see
sec. 92, sub-sec. 13]. Patents of
invention, &c., though property
and civil rights in the province in
which the holder may be domiciled,
yet confer rights exercisable in any
province of the Dominion, and all
legislation on the subject is from its

very nature, in a high degree, a
matter of policy of the general
Government." And his Lordsbii)
quoted Mr. Tach6 — ' The intention
of the legislature, as shown by the
policy of the legislation, is evidently
to guard against the danger of
Canadian patents granted to aliens,
being made instrumental to secure
the Canadian market in favour of
foreign patents to the detriment of
Canadian industry, for, in the mea-
sure that the right of taking patents
was extended, the remedy against
the dreaded danger was made more
ample, but at the same time the
jurisdiction over such cases of
disputes as might arise, was
transferred from judicial tribunals
to the administrative tribunal.'
His Lordship continued : " This,
I think, is what Henry, J., is re-
ferring to, when in Smith v. Goldie,
9 S. C. R. p. 68 [see above], he
speaks of the matter being solely a
matter of ministerial and not judi-
cial determination — 'evidently for
the purpose of avoiding an over-
strict application of the provisions
made against the possible evil of a
patent being taken for the sole pur-
pose of depri\ ing Canada from the
use of a useful invention. The 28th
section is also intended as a sort of
protective policy in favour of Can-
adian labour. The legislature has
certainly not without intention pro-
vided for a kind of paternal tri-
bunal formed by the Commissioner
of Patents, the natural protector of
patentees, which intention can be
no other than that every case
should be adjudicated upon in a
liberal manner.' Upon the best
considerations I have been able to
give to the subject, I am of
opinion that the .section [28] is not
ultra vires, or in conflict with the
powers assigned to the proviucial
legislatures. Though property and
civil rights, it is yet one of parlia-
mentary creation, and I see no rea-
son why the same power which gave
it birth and limits the term of its
existence should not also, as a
matter of policy, and for the purpose

B.N.A. ACT, 8. 91 (23).— ENGLISH AUTHOR.

of effectual legislation on the sub-
ject, also provide a special mode of
inquiring into and deciding upon the
question whether the conditions
upon which it was granted, to
which it was expressly to be sub-
ject, and on which its existence
depends, have been complied ^vith.
I cannot on principle distinguish
this legislation from many of the
instances referred to by Ritchie,
C.J., in Valin v. Langlois, 3
S. C. R. 1, in which judicial
powers are conferred, in some cases
on individual judges, in others on
pro\ incial courts, to administer re-
lief arising under Dominion Acts.
I mnv refer, inter alia, to the follow-
ing :— The Public Works Act, 31
Vict. c. 12. s. 48, provides that the
costs in awards under that Act shall
be taxed in some caaes by the pro-
per officer of certain named courts,
in others by a judge of the supreme
courts. The Act for the settlement
of the affairs of the Bank of Upper
Canada, 31 Vict. c. 17., gives au-
thority to the Court of Chancery or
a judge thereof to make orders and
directions with reference to the
trust therein mentioned [see this
Act, sub-sec. 21]. The 31 Vict.
c. 23., an Act to define the privi-
leges of the House of Commons, &c.,
makes provision for the immediate
stay of, and putting an end to, all
proceedings, civil or criminal, upon
the certificate of the Speaker in cer-
tain cases. The Act relating to
banks and banking, 34 Vict. c. 5.,

enables the superior courts of law
and equity to adjudicate in a sum-
mary manner upon the right of
imrties legally entitled to shares,
&c. See Re Bank of Ontario, 44
U. C. Q. B. 247. The Public
Lauds Act, 35 Vict. c. 23., pro-
vides for a summary remedy on
application to a judge of any court
having competent jurisdiction, in
cases respecting real estate, for the
delivery of laad on proof to his
satisfaction that land forfeited
should properly revert to the
Crown. So in the very Act in ques-
tion we find provisions made with
regard to actions for the infringe-
ment of patents, and impeaching
them by sci. fa., &c., in the pro-
vincial courts and the powers of
such courts, and the procedure in
the action. See Aitcheson v.
Mann, 9 Prac. R. 253. Except that
the power has been conferred upon
the Minister of Agriculture instead
of a judge or a court eo nomine, and
that no mode of procedure has been
provided, I do not see any real dis-
tinction between this case and many
others of which the foregoing are
examples. . . I have considered
whether section 28 could be re-
stricted to cases where parties go
tefore the minister by consent; I
do not see my way to so holding. .
The jurisdiction of the minister is
concluded, so far as I am concerned,
by the decision of the Supreme
Court in Smith v. Goldie, 9 S. C. R.
p. 68."

Am Bell
Tklepiione Co.

(23.) Copyrights.^

' -See American Constitution,

iirt. 1. 8.

In Smiles v. Belfobd, March
1877, 1 O. A. R. 436, it was
held, affirming the judgment of
Proudfoot, V.C., 23 Grant, 590,
that it is not necessary for the
author of a British book who has
duly copyrighted the work in Eng-
land under 5 & 6 Vict. c. 45., to
copyright it again in Canada under

the Copyright Act, 1875, with a Smilm v. Bbl-

view of restraining a reprint of it ^ovx>.

there ; but if he desires to prevent

the importation into Canada of

printed copies from a foreign

country, he must copyright the

book in Canada.

The respondent published in
England the work "Thrift," of
which he was the author, and
claimed the sole and exclusive
right of printing, Ac, throughout

!' 'I 'T'W,

B.N.A. ACT, s. 91 (23).— IMP. COPYRIGHT ACTS.

Shilu v.

FORD.

Biu- Great Britain and Ireland and all
the Colonies, 5 & 6 Vict. c. 45.
ss. 2, 29. By virtue of certain
Canadian statutes passed under
authority of the Imperial Act, 10 &
11 Vict. c. 95., the respondent's
rights were less in Canada than in
England, in that foreign reprints
of his book were, under authority
of the Canadian Acts, permitted to
be imported into Canada without the
consent of the respondent, upon pay-
ment of a certain duty for his bene-
fit. The appellant contended that
the Imperial "Canada Copyright
Act, 1875 " (38 &39 Viet. c. 53.),
and the Queen's Proclamation gave
the "Canadian Copyright Act," 38
Vict. c. 88., the force of law in Can-
ada, notwithstanding the " Colonial
Laws Validity Act" (28 & 29
Vict. c. 63.), or the "Imperial
Copyright Act," 5 & 6 Vict. c. 45.,
and to the extent of the Canadian
"Copyright Act," superseded the
Imperial Copyright Act of 1842
in Canada from 11 Dec. 1875, or
at all events, that the legislation
Mas cumulative, and if the Im-
perial Act is in force in Canada,
the provisions of the Canadian
Act are superadded, and must be
complied with to give copyright in
Canada, 38 & 39 Vict. c. 53. s. 3.
Dow V. Black, 5 March 1875, 6
L. R. P. C. 272 ; 44 L. J. P. C.
52; 32 L". T. 274. [See sub-
sees. 10 and 3, sec. 91.] L'Union
Jacques de Montreal v. Belisle,
8 July 1874, L. R. 6 P. C. 31 ;
31 L! T. Ill; 22 W. R. 933.
[See sub-sec. 21, sec. 91.]

Burton, J. A., referring to the
B. N. A. Act, said : "It is clear
that all the Imperial Act intended
to effect wa-s to place the right of
dealing with colonial copyright
within the Dominion under the
exclusive control of the Parliament
of Canada, as distinguished from
the provincial legislatures, in the
same way as it has transferred the
power to deal with banking, bank-
ruptcy, and insolveacy, and other
specific subjects from the local
legislatures, and placed them under

the exclusive jurisdiction and con-
trol of the Dominion. I entirely
agree with the learned V.O. in the
opinion which he has expressed
that under that Act no greater
powers were conferred upon the
Parliament of the Dominion to
deal with this subject than had
been previously enjoyed by the
local legislatures. By the 29th sec.
of the Imperial Act, 5 & 6 Vict.
c. 45., that Act is extended to
every part of the British domi-
nions, and it was unsuccessfully
contended in Routledge v. Low,
L. R. 3 H. L. 100, that Canada,
having a legislature of her own,
and not being directly governed
by legislation from England, was
not included in these general
words. The 15th section of that
Act prohibits Her Majesty's colo-
nial subjects from printing or pub-
lishing in the colonies without the
consent of the author (whatever
may be their colonial laws) anv
work in which there is copyright
in the United Kingdom. The
same Act prohibitfi the importing
into any part of the British pos-
sessions any foreign reprint of any
book first written or published in
the United Kingdom entitled to
copyright there. This Act was
subsequently amended by the 10
(fell Vict. c. 95., and it was there
provided that in case the legis-
lature of any British possession
should be disposed to make due
provision for securing or protect-
ing the rights of British authors in
such possession, and should pass
an Act for that purpose, and trans-
mit the same to the Secretary of
State, and in case Her Majesty
should be of opinion that such Act
was sufficient for the purpose of
securing to British authors reason-
able protection within such pos-
session, it should be lawful for Her
Majesty to express her royal ap-
proval of such Act, and therefore,
by Order in Council, to suspend,
so long as the provisions of such
Act should continue in force in
such colonies, the provisions of the

B.N.A. ACT, s. 91 (23).— CAN. COPYRIGHT ACTS.

5&6Vict.c.45.,a5rains<</<e«npo?'^-
ing, selling, or exposing for sale
foreign reprints of British copy-
right works. The Dominion Par-
liament Act, 31 Vict. c. 56., was
accordingly passed with the object
of giving such reasonable protec-
tion to authors, and upon its being
approved of and assented to by
Her Majesty, she did, by Order in
Council, 7 July 1868, suspend
those provisions of the 5 & 6
Vict, c. 45. which related to the
importing and selling of foreign
reprints. At this time, then, and
up to the coming into operation of
the recent Act, 39 Vict., 1875, the
5 & 6 Vict, c. 45., as modified by
the Order in Couucil, was in full
force within the Dominion; in
other words, no one was at liberty,
without the consent of the owner
of the copyright, to print or re-
print the subject of that copyright
iu any part of the Dominion. It
was conceded that if the colonial
Act just referred to [38 Vict. c.
88., 1875 ; see sch. to 38 & 39 Vict.
(Imp.) c. 53.] had been reserved for
and had received the Royal Assent
iu the usual way, it could not have
the eTect of repealing the 5 & 6
Vict, c, 45. ; but it was contended
that, inasmuch as it had been con-
firmed by an Act of the Imperial
Parliament [38 & 39 Vict. c. 53.],
it must be regarded as having the
force of an Imperial statute, and
that being, as it was contended, in-
consistent with the former Act, it
must be held to have impliedly
repealed it. But on referring to
the Imperial Act we find the
reason, aud the only reason, al-
leged for its passage to be the as-
sumed repugnancy of the reserved
Bill [38 Vict. c. 88.] to the Order
in Council of 7 July 1868. Those
: orders aud modifications which
tliey effected in the provisions of
5 & G Vict. c. 45. are referred to
in the preamble, and after reciting
I that a Bill respecting copyrights
! litid then been recently passed by
the Parliament of Canada whereby
piovisiou was made (subject to

such conditions as in the said Bill Smiles v. Bel-
mentioned) for securing in Canada 'obd.
ihe rights of authors in respect of
copyright and for prohibiting the
importation into Canada of any
work for which copyright under
the said reserved Bill had been
secured, it is declared to be ex-
pedient to remove the doubts
which had arisen as to whether a
mere assent would make the Bill
operative as against the Orders in
Council, which had the force of
statutory enactments, aud it was
therefore desirable to confirm the
Bill by Imperial legislation. It is
scarcely reasonable to suppose that
if the Imperial Parliament had
thought fit to accept the Canadian
enactment as a substitute for the
5 & 6 Vict. c. 45., they would not
have repealed it so far as it affected
Canada in express terms, or that
whf^n stating a reason for Imperial
legislation they would have con-
fined themselves to a reference to
the Order in Council which dealt
only with a portion of the prohibi-
tions referred to in the statute. I am
of opinion, therefore, that they have
stated the only reason which ren-
dered it expeclient to seek a con-
firmation of the Canadian Act,
and that it was intended to pre-
serve intact so much of the Im-
perial Act as prohibits the printing
of a British copyright work in
Canada, but giving to the author
a further right on certain conditions
of securing a Canadian copyright,
and thus preventing the importa-
tion into Canada of foreign x'e-
prints." His Lordship then re-
ferred to the remarks of Lord
Carnarvon when introducing the
measure as a thing to which little
weight could be given, it not being
judicial: "and for the above rea-
sons the decree of the learned
Vice Chancellor was correct, and
the application should be dismissed
with costs." Moss, J.A., in a long
judgment, said : "It must betaken
to be beyond all doubt that our
legislature had no authority to pass
any laws opposed to statutes which

^ :

Suites V. Bbl-

FORD.

! 1^1 1

III ;

f' '■

Hii

B.N. A. ACT, 8. 91 (24).— INDIAN LANDS.

the Imperial Parliament had made
applicable to the whole empire.
Now it has been settled by the
highest authority that a copyright,
when secured in England, ex-
tended to every part of Her Ma-
jesty's dominions, including Ca-
nada; Routledge v. Low. [See
above.] Except so far as his
rights were affected by the 10 & 11
Vict. c. 95., and the Order in
Council made under its provisions,
he was absolutely entitled to the
protection of the Imperial Copy-
right Act. By that Act he had
the sole and exclusive right of
printing and otherwise multiplying
copies pf his work in Canada.
The 10 & 11 Vict. c. 95. did not
touch the question of Canadian
reprints. It only peiuitt ' 'i«
import of foreign .t'pHc / :
payment of a duty for the "

St. Cathe-
rine's MiLLINO

AND LCMBER

Co. V. The
Queen.

the author. Independently, then, of
the legislation of 1875, it is clear
that the respondent was entitled to
copyright in this country with the
single limitation that foreign re-
prints might bo imported. It js
equally clear that colonial Icgis.
lation alone could not have affected
his rights." Burton, J.A., also said
he dissented from, and he did not
think Chief Justice Draper, in
Reg. V. Taylor, 36 U. C. Q, B.
p. 220 [see ante, p. 56], delibe-
rately entertained the opinion in
that case attributed to him. [See
Note, sec. 93, of Reg. v. College of
Physicians of Ontario, Dec. 23,
1879, 44 U. C. Q B. 564.]

One of the latest cases on copv-
right in Canada is Sailand V,
Gemmill, Dec. 20, 1887, 14 S. C,
R. 321, on the Dominion Act of
38 Vict. c. 88. 8. 9.

(24.) Indians, an 1 1-inds rererved for the Indians}

1 -S'ee sec. 109.

In St. Catherine's Milling
AND Lumber Company v. The
Queen, 10 O. R. 196 ; 13 O. A. R.
148; 13 S. C. R. 577; in P. C.
Dec. 12, 188>J, 14 App. Cas. 46;
58 L. J. P. C. 54 ; 60 L. T. 197,
the Dominion claimed that the Act
of 1867 transferred to the Do-
minion all interest in Indian lands
which previously belonged to the
province. Lord Watson delivered
the judgment, there being also
present, Earl of Selbome, Lord
Hobhouse, Sir Barnes Peacock,
Sir Montague E. Smith, and Sir
R. Couch. Lord Watson said :
" It appears that, on 3 Oct. 1873,
a formal treaty or contract was
concluded between Commissioners
appointed by the Go\ernment of
the Dominion, on behalf of Her
Majesty the Queen, of the one
part, and. a number of chiefs and
headmen duly chosen to represent
the Satleaux tribe of Ojibbeway
Indians, of the other part, by which
the latter, for certain considera-

liois, leloascd and surrendered to
the Government of the Dominion,
for Her Majesty and her successors,
the whole right and title of the
Indian inhabitants whom they re-
presented to a tract of coimtrj
upwards of 50,000 square miles in
extent. By an article of the treaty
it was stipulated that, subject to
such regulations as may be made
by the Dominion Government, the
Indians are to have the right to
pursue their avocations of hunting
and fishing throughout the sur-
rendered territory, with the excep-
tion of those portions of it which
may from time to time be required
or taken up for settlement, iiiin-
ing, lumbering, or other pur-
poses. Of the territory thus
ceded to the Crown an area of not
less than 32,000 square miles is
situated within the boundaries of
the province of Ontario ; and, with
respect to that area, a controversv
has arisen between the Dominion
and Ontario, each of them main-
taining that the legal effect of ex-
tinguishing the Indian title has

B.N.A. ACT, s. 91 (24).— QUEBEC JUDICIAL HISTORY. 95

been to transmit to itself the entire
beneficial interest of the lands as
now vested in the Crown, freed
from incumbrance of any kind,
save the qualified privilege of
hunting and fishing mentioned in
the treaty. Acting on the assump-
tion that the beneficial interest in
these lands had passed to the Do-
minion Government, their Crown
timber agent, on 1st of May 1883,
issued to the appellants, the St.
Catherine's Milling and Lumber
Co., a permit to cut and carry
away 1,000,000 feet of lumber
from a specified portion of the dis-
puted areas. The appellants having
availed themselves of that license,
a writ was filed against them in
the Chancery Division of the High
Court of Ontario, at the instance
of the Queen on the information of
the Attorney-General of the pro-
vince, praying (1) a declaration
that the appellants have no right
in respect of the timber cut by
them upon the lands specified in
their permit; (2) an injunction re-
straining them from trespassing on
the premises and from cutting any
timber thereon ; (3) an injunction
against the removal of timber
a&eacly cut ; and (4) decree for
the damage occasioned by their
wrongful acts. The Chancellor of
Ontario, on 10 June 1885, de-
cerned with costs against the ap-
pellants, in terms of the first three
conclusions, and referred the
amount of damage to the Master
in Ordinary. The judgment of
the learned Chancellor was unani-
mously alfirmed on the 20th April
1886 by the Court of Appeal for
Ontario, and an appeal taken from
their decision to the Supreme Court
of Canada was dismissed on 20th
June 1887 by a majority of four
of the six judges constituting the
Court." *

" Although the present case re-
lates exclusively to the right of the
Government of Canada to dispose
of the timber in question to the
appellant company, yet its de-
cision necessarily involves the de-

AND Lumber
Co. V. Thk

QUBEN.

termination of the larger question St. Cathb-
between that Government and the fine's Milling
province of Ontario with respect
to the legal consequence of the
treaty of 1873. In these circum-
stances Her Majesty, by the same
order which gave the appellants
leave to bring the judgment of the
court below under the review of
this Board, was pleased to direct
that the Government of the Do-
minion of Canada should be at
liberty to intervene in this appeal,
or to argue the same upon a special
case raising the legal question in
dispute. The Dominion Govern-
ment elected to take the first of
these courses, and their Lordships
have had the advantage of hearing
from their counsel an able and ex-
haustive argument in support of
their claim to that part of the
ceded territory which lies between
the provincial boundaries of Ontario.
" The capture of Quebec in
1759, and the capitulation of Mon-
treal in 1760, were followed in
1763 by the cession to Great
Britain of Canada and all its de-
pendencies, with the sovereignty,
property and possession, and all
other rights which had at any pre-
vious time been held or acquired
))y the Crown of France. A Royal
Proclamation was issued on the 7th
October 1763, shortly after the
Treaty of Paris, by which His Ma-
jesty King George (the 3rd) erected
four distinct and separate govern-
ments, styled respectively, Quebec,
East Florida, West Florida, and
Grenada, specific boundaries being
assigned to each of them. Upon
the narrative that it was just and
reasonable that the several nations
and tribes of Indians who lived
>inder British protection should
not be molested or disturbed in the
' poHsesssion of such parts of Our
dominions and territories as, not
having been c eded to or purchased
by us, are reserved to them or any
of them as their hunting ground,'
it is declared that no Governor or
Commander-in-Chief in any of the
new Colonies of Quebec, East

B.N. A. ACT, s. 91 (24).— WASTE LANDS.

St. Cathe-
binb's Milling
AND Lumber
Co. V. The
Queen.

Florida, or West Florida, do pre-
sume on any pretence to grant
warrants of survey or pass any
jmtents for lands beyond the
bounds of their respective govern-
ments, or * until Our further pleasure
be known' upon any lands what-
ever which, not having been ceded
or purchased as aforesaid, are re-
served to the said Indians or any
of them. It was further declared
' to be Our Koyal will, for the pre-
sent as aforesaid, to reserve under
our sovereignty, protection and
dominion, for the use of the said
Indians, all the land and territories
not included within the limits of
our said three governments or
within the limits of the territory
granted to the Hudson's Bay Com-
pany.* The proclamation also
enacts that no private person shall
make any purchase from the In-
dians of lands reserved to them
within those colonies where settle-
ment was permitted, and that all
purchases must be on behalf of the
Crown in a public assembly of the
Indians, by the Governor or Com-
mander-in-Chief of the Colony in
which the lands lie.

" The territory in dispute has
been in Indian occupation from
the date of the proclamation until
1873. During that interval of
time Indian affairs have been ad-
ministered successively by the
Crown, by the provincial govern-
ments, and since the passing of the
B. N. A. Act, 1867, by the Go-
vernment of the Dominion. The
policy of these administrations has
been all along the same in this re-
spect, that the Indian inhabitants
have been precluded from entering
into any transaction with a subject
for the sale o"" transfer of their in-
terest in the land, and have only
been permitted to surrender their
rights to the Crown by a formal
contract duly ratified in a meeting
of their chiefs or headmen con-
vened for the purpose. Whilst
there have been changes in the ad-
ministrative authority, there has
been no change since the year 1763

in the character of the interest
which its Indian inhabitants had
in the lands surrendered by the
treaty. Their possession, such as
it was, can only be ascribed to the
general provisions made by the
lloyal Pi'oclamation in favour of all
Indian tribeo then living under the
sovereignty und protection of the
British Crown. It was suggested,
in the course of the argument for
the Dominion, that inasmuch as
the proclamation recites that the
territories thereby preserved for In-
dians had never been ' ceded to or
purchased by ' the Crown, the entire
property of the land remained with
them. That inference is, however,
at variance with the terms of this
instrument, which show that the
tenure of the Indians was a per-
sonal and usufructuary right, de-
pendent upon the good will of the
sovereign. The lands reserved are
expressly stated to be 'parts Our
dominions and territories,' and it is
declared to be the will and pleasure
of the sovereign that ' for the pre-
.sent ' they shall be reserved for the
use of the Indians as their huntiug
grounds under his protection and
dominion. There was a great deal
of learned discussion at the Bir
with respect to the precise quality
of the Indian right, but their
Lordships do not consider it neces-
sary to express any opinion upon
the point. It appears to them to he
sufficient for the purposes of this
case, that there has been all along
vested in the Crown a substantial
and paramount estate underlying
the Indian title, which became a
plenum dominium whenever that
title was surrendered or otherwise
extinguished. By an Imperial sta-
tute passed in 1840 (3 & 4 Vict.
c. 35.), the provinces of Ontario and
Quebec, then known as Upper and
Lower Canada, were united under
the name of the province of
Canada, and it was, inter alia,
enacted that in consideration of
certain annual payments which Her
Majesty had agreed to accept by
way of Civil List, the produce of all

B.N.A ACT, s. 91 (24).— DOM. TIMBER CLAIMS. 97

tenitorial and other reveuues at tbo
(lisposiil of the Crown arising in
either of tlie united provinces
should 1h! I'lii'l iuto the eonsoli-
iliited fund "f t'>f 'iPW province.
There was no tran.sfer of nnv le<;;«l
cstiite iu the Crown hinds, which
cuntinned to be vested in the sove-
reign ; but all moneys realized bv
sales or in any other manner be-
cjiiiie the property of the province.
Ill otiier words, nil beneficial in-
kiest ill sucii lands within the jiro-
viueial boundaries Ijelonging to tiie

Ijiiei'u,

a IK

1 either producing or

capable of producing revenue,
|)iisseil to the province, the title

«till reranining iu the Crown. That
ontiinu'd to be the right of the
liroviiice until the passing of the
li. y. A. Act, IHG7. Had the in-
habitants of the area in question
iileased their interest in it to the
Crown at any time lietween 1840
ami the date of that Act, it does
uot seem to admit of doubt, and it
was not disputed by the learned
counsel for the Dominion, that all
reveunes derived from its l)eiug
taken up for settlement, mining,
lumbering, and other purposes,
wouhl liiuc been the property of
the province of Canada. The ease
im\iutaini'(l for the appellants is
that tlie Act of 1867 transferred to
the Dominion all interest in Indian
hiuds which previously belonged to
the province. The Act of 1867,
which eroated the Federal Goveru-
meut, repealed the 3 & 4 Vict.
c. 35., and restored the Upper and
Lower Caiuidas to the condition of
^paiiite provinces under the titles
of Ontario and Quebec, due pro-
vision being made (sec. 142) for
the division between them of the
property and assets of the united
province, with the exception of
certain items specified in the fourth
sihi'dule which are still held by
iliem jointly.

" The Act also contains careful
pro\isions for the distribution of
legislative powers and of revenues
and assets between the respective
provinces included in the Union,

S 2340.

AND LuMnEB

Co. V. TiiK
Queen.

on the one hand, and the Do- '^t. Cathe-
niinion, on the other. The con- *'"■> ^l"'!""
dieting claims to the ceded terri-
tory maintained by the Dominion
and the province of Ontiuio are
wholly dependent on these statu-
tory provisions. In construing
these enactments, it must always
be kept iu view that, wherever
|)ublic land with its incidents is
described as ' the property of '
or as ' belonging to ' the Do-
minion or a j)rovince, these ex-
pressions merely import that the
right to its beneficial use, or to its
proceeds, has l)een appropriated to
the Dominion or the province as
the case may be, and is subject to
the control of its legishitine, the
land it.self being vested in the
Crown. Sec. 108 enacts that the
public works and undertakings
enumerated iu Schedule 3 shall be
the property of Canada as specified
iu the .schedule ; these consist of
public imdertakings which might
be fairly considered to exist for the
benefit of all the provinces fedeiully
united, of lands and buihlings
necessiuT for carrying on the Cus-
toms oi' postal service of the Do-
minion or required for the purpose
of natioiud defence, and of ' lands
set apart for general pid)lic pur-
poses.' It is obvious that the enti-
meration cannot be rea.sonably held
to include Crown lands which are
reser\ ed foi- Indian use. The only
other clause iu the Act by which a
share of what previously constituted
pro\'incial revenues and assets is
directly assigned to the Dominion
is sec. 102. It enacts that all
' duties and revenues ' over which
the respective legislatures of the
United Province iuid and have
power of appropriation, ' except
such portions thereof as are by this
Act reserved to the respective legis-
latures of the provinces, or are
raised by them in accordance with
the special powers conferred upon
them by this Act,' shall form one
consolidated fund to l)e appropri-
ated for the public service of
Canada. The extent to which

m
m

Jii!

;

•: I!

St. Catiik-

niNR's MlI.I.INO
AND LUMIIFH
(^0. r. TlIK
(Jt'KKN.

98 B.N.A. ACT, s. 91 (24).— ESCHEATS PROVINCIAL.

duties and rpveimoH iiriwinfr within
tiio limits of (Intario, iind o\»'r
whit'li tho li'fjisliitnic of tlio old
proviiico of Citiiiida pos.scssml the
])()\v«'r of iippropiiation before the
passing of the Aet, have been
transferred to the Dominion by
this elause, ejin only be ascertained
by reference to the two exception.')
which it makes in favour of the
new provincial legislatiu'es. The
.second of these exceptions has
really no beaiing on the present
case, because it comprises nothing
beyond the revenues which pro-
vincial legislatures are empowered
to raise by means of direct taxation
for provincial purposes in terms of
sec. 92, sub-sec. 2. The first of
them, which appears to compre-
hend the whole sources of revenue
reserved to the provinces by sec.
109, is of nuiterial consequence.
Sec. 109 jnovides that 'all lands,
mines, minerals, and royalties be-
longing to the .several provinces of
Canada, Nova Scotia, and New
Brunswick, at the Union, and
all sums then due or payable for
such lands, mines, minerals, or
royalties, shall belong to the several
jaovinces of Ontario, Quebec,
Nova Scotia, and New Brunswick,
in which the same are situate or
arise, subject to any trusts existing
in respect thereof, an<l to any in-
terests other than that of the pro-
vince in the stmie.' In connection
with this clause, it may l)e obst^ved
that by .sec. 117 it is declared
that the provinces .shall retain their
respective pid)lic property not
otherwise disjiosed of in the Act,
subject to the right of Canada to
assume any lands or pid)lic pro-
perty required for fortifications or
for the defence of the coimtry. A
different form of expression is used
to define the sid)ject-matter of the
first exception, and the property
which is directly appropriated to
the province ; but it hardly admits
of doubt that the interests in land,
mines, minerals, and royalties,
which by sec. 109 are declared to
belong to the provinces, include, if

they are not identical with, tlic
' duties and revenues ' first except.
ed in sec. 102. The enactments
of sec. 109 are in the opinion of
their Lordshii)s suflicient to give to
( ach province, subject to the ad-
mini.sfration and control of its own
legislature, the entire beneficial in-
terests of the Crown in all lands
within its boundaries, which at the
time of the Union were vested in
the Crown, with the exception of
such lands as the Dominion at'-
(piired right to under sec. lOS or
might a.ssume for the pnrpo^*
specified in .sec. 117. Its leguj
efifect is to exclude from the ' dnties
and revenues ' appropriated to tlie
Dominion all tlu^ ordinary territo
rial revenues of the Crown arisiug
within the provinces. That con-
struction of the statute was accept-
ed by this Court in deciding Att-
Gen. of Ontaiio v. Mercer, reversing
5 S.C.R. 538, Jidy 18, 1883, 8 App.
Cas.767 [see post, s. 109], where tlie
controversy related to land granted
in fee-simple to a subject before
1867, which became escheated to
the Crown in the year 1871. Earl
Selborne, L.C., in delivering jndg-
ment in that case, said : * It wns
not disputed, in the argument for
the Dominion at the Bar, that all
territorial revenues arising within
each province from ' lands ' (in
which term nnist be comprehended
all estates in land), which at the
time of the Union belonged to the
Crown, were reserved to the it-
spective provinces by sec. 109; and
it was admitted that no distinction
could, in that respect, be made
between lands then ungranted and
lands which had previously reverted
to the Crown by escheat. But
it was insisted that a line was
drawn at the date of the Union,
and that the words were not suffi-
cient to reserve any laniis after-
wards escheated which at the time
of the Union were in private
hands and did not then belong to
the Crown.' Their Lordships in-
dicated an opinion to the effect
that the escheat would not, in the

B,N A. ACT, s. 91 (24).— HIST. INDIAN CONCESSION.

iveriug jud»-
niil : ' It was
argiuiH'nt for
Bar, that all
rising within
'lands' (Id
DUiprehendeil
which at the
longed to tlif
I to the re-
tec. 109 ; and
30 distinction
ct, be made
ng^anted and
jusly reverted
ischent. But
a line was
f the Union,
^•ere not siiffi-
lands after-
li at the time
in private
len belong to
lOrdships in-
o the effect
(1 not, in the

special circuniMtanccH of that case,
have paHscil to tlif provinco as
'lands,' hut they held that it fell
within the class of rights ri^icrvcd
to the provinces as 'royalties'
liv sec. 109. Hiwl its Indian
iiiiml)itants lieen the owners in lee-
simple of the territory which they
surrendered by the treaty of 1873,
Att.-Qcn. r. Mercer [seepost, s. 109]
might have Ih-cii an authority for
hohling that the province of On-
tario could derive no l)enefit from
the cession, in respect that the land
was not vested in the Crown at the
time of the Union. But that was
not tlie character of the Indian
interest. Tiie Crown has all along
had a present proprietury estute in
the huid, upon which the Indian
title was a mere burden. The
crticd territory was at the time of
liioUnioUjlandvested in the Crown,
subject to ' an interest other than
that of the province in the .same '
within the meaning of .sec. 109 ;
ami must now l)elong to Ontnrio
in terms of that clause, miless its
rights have been taken away by
>ome provision of the Act of 1 867
other tJian those already noticed.

" In tile course of the argument
ilie claim of the Dominion to the
ceded territory was rested upon
the provisions of sec. 91, sub-
sec. 24, which in express terms
confers upon the Parliament of
Canada |)ower to make laws for
'Indians and lands reserved for
Indians.' It was urged that the
I exclusive power of legislation and
administration carried Avith it, by
necessary implication, any patri-
monial interest which the Crown
[might have had in the i-eserved
s. In reply to that reasoning,
j counsel for Ontario referred ns to
I a series of provincial statutes prior
J in date to the Act of 1867, for the
[purpose of showing that the ex-
Ipression 'Indian Reserves' was
liised in legislative language to
jdesignate certain lands in which
jllie Indians had, after the Royal
jProclamation of 1763, acquired a
I special interest, by treaty or other*

TlIK

wise, and did uot apply to hind '^r. Catiik-
occupied by them in virtue of "«"»«» Millimi
th<! proclamation. The arpi- --nt ^"^ ^'''*"""
might have deserved consideration Qubrn.
if the exj)ression had been adopted
by the British Parliament in 1867,
but it do<'s not occur in see. 91,
sub-sec. 24, and the words actually
used are, according to theii' natural
meaning, .sufficient to include all
lands reserved, upon any terms or
conditions, for Indian occupation.
It appears to l)e the plain policy of
the Act that, in order to insure
uniformity of administration, all
such laws, and Indian affairs gene-
rally, shall 1)0 under the legislative
control of one central authority.
Their Lordships are, howevei",
unable to assent to the argument
for the Dominion founded on sec.
91, sub-sec. 24. There can be no
n priori i)i(diability that the Britisii
Legislature, in a branch of the sta-
tute which i)rofes.ses to deal only
with the distribution of legislative
power, intended to deprive the
provinces of rights which are ex-
pressly given to them in that
branch of it [sec. 109] which relates
to the distribution of revenues and
assets.

" The fact that the power of legis-
lating for Indians, and for lands
which are reserved for their use,
has been entru.sted to the Parlia-
ment of the Dominion, is not in the
least degree inconsistent with the
right of the provinces to a bene-
ficial interest in the.se lands, avail-
able to them as a source of re\enue
whenever the est^ite of the Crown
is disencumbered of the Indian
title.

"By the treaty of 1873 the Indian
inhabitiuits ceded and relwised the
territory in dispute, in order that
it might W opened up for settle-
ment, immigration, and sucli other
purposes as to Her Majesty might
seem fit, ' to the Government of
the Dominion of Canada,' for the
Queen and her successors for ever.
It was argued that a cession in these
terms was in effect a conveyance
to the Dominion Government of

G 2

■ i

100 B.N.A. ACT, H. 01 (2:)).— FRANCITTSE OF INDIANS.

AND lil'MIIKIl
Co. 1'. TlIK
C^UEKN,

St. Catiir- tin- whole lifjlits ol' flic Iiidimiw
hink's Mii.UNd ^yi,|, ,,,„in,.„t ,,f III*' Crown. 'I'liiit
i> not tlic natut'til iniporl nl' tlw
liiii;;iiii<it' ol' llic treaty, wliieli |iiii'-
poits to lie from l)e;iinniii<i to end
II ti'iinstietioii lielweeii the IniliiuiH
1111(1 tile Crown ; iiiiil the .siiriender
is in suhstiince iiimle to the
(^rowii. Even if its liin<;iiii};e had
Ijeen more fiivomahle to tlu; iii}j;ii-
nient of tlu> Dominion upon this
l^oint, it is ahiindantly eleitr that
the eonimissioners who represented
Her Majesty, whilst they hud full
uuthorily to aeeejit a siiireiider to
the Crown, had neither authority
nor power to take away from On-
tario the interest wliieli had iK'en
iissipnod to that provinet! liy the
Imperial statute of IHG7. these
considenilions iijipear to their Lord,
ships to lie suflieient for th") dis-
posil of this appeal. The treaty
leaves the Indians no rij^ht what-
ever to the tiiiiher {^rowinj; upon
the hinds whieli they <;a\e up,
which is now fully vested in the
Crown, all revenues derivnlile from
the Side of such portions of it as
are situated within the boundaries
of Ontario l)ein<5 the projierty of
that province. The fact, that it
still i)ossesses exclusive ])ower to
iciruiatc the Indian privih'ge of
liuntini:; and fishing, cannot confer
ii|)oii the J3oni;'iion power to dis-
pose, by issninjj; permits or other-
wise, of that beneficial interest in
the fiiiilii'r which has now passed
to Ontario. Scein<if that the bene-
fit of the surrender accrues to her,
Ontario, must of course relieve the
Crown ami the Dominion, of all
obligations involving the payment
of money which were undertaken

iit

by Her Majesty, and whicii mv
-.lid to ha\(' been in part fiillijlnl
by the Doiiiinion (ioMTiniicm.
'I'liere may be other questions lie.
hind, with respect to the rirlit to
determine to what extent nnd at
what periods the disputed Icnitiiiv,
o\cr which tlie Indians still cxci'-
cise their avocation of hunting nini
lishing, is to Ik- taken up for sctlli
nient or other pnrpo.ses, but nniu'
of these ipiestions ar<' raised fm
decision in the jircsenf suit." .Iml;;.
iiieiit of Supreme Coni'l afrniiicd.

British Columbia pa.ssed nn Aii
which precluded the e.xereise oftln'
electoral franeliisti in res])e('i di
the legislative assembly by CliiniM
and Indians. The Deputy MI
nister of Justice, 18 Sept." 1.S72,
reported the Bill to be within iIk
legislati\e power of the iiioviiicc,
1st, becaii.sc sub-.sec. 21, sec. ill,
had reference to legislation to In-
dians generally, anil to lands re-
served to tlieiii, and 2iid, sec, 92
gives to each province the power
exclusively to make law.s in rchition
to, inter alia, the constitution nf
the province, and (hat thiscoiil'crreil
on the province the right of lfi;is-
lating as to its franchise.

Ontario had also exercised tiii>
right in respect of Indian votes, and
had excepted from the right In
franchise Indians belongiiifj tn
tribes and Indians in receipt dI
f}overnment aid or bounty. See
33 Vict. c. 25. s. 34 ; Prov. Lt;;,
18(!(5, p. 710. 28 U.C.C. r. 384,
391) ; 1 Ont. App. B. 159, a case uf
provincial taxation, that sub-sec. 24
applied only to Indian huuLs not
surrendered antl still reserved for
their use.

(25). Naturalization and aliens.^

' See the Imperial Naturalization
Act of 1870,33 & 34 Vict. c. 14. s.
16, which gives power to Colonies to
legislate with respect to naturali-
zatiou of persons who are to have
that privilege within the limits of
such possessions. The 35 & 36 Vict.

c. 39., which amended the previous
Act only as to renunciation by the
citizens of the United States aud
by British subjects of their resp«c-
tive original nationality, in accor-
dance with the Convention with the
United States, 23 February 1871.

said
CliiiM
(•-' \VI

the

iiiiiloi'i

Wllflv

powpr
they
argiime
preocdi
the inv
undor
solely
the ('„
the M
rrepeale

B.\.A. ACT, H. 01 (20).— NATUltALIZATION.

101

Iii'<,'i?>liitiim with rof^anl to nlit-ns
i>i cntni^ti'il to the Doiiiiiiioii I'lir-
liiiini'iit. TIk' Maiiitol»ii Assfint)l_v
pasM'd Mil Art (Icaliii^ with the
lididin^' of Iniiii ; ami dcclart'd tliiil
tli('Cxi.stiii;iilis(|iialill('atioiisiipiiiist
aliens (IcIpmitciI tliciii IVom st'r>iii>;'
(isjiiiors. Tlu' Minister ol' Justice,
21 FclinmiT 1874, t'ollo\viii>; the
niliii;,' ol' the C'liief ' ■Hee uuder
till' Mii^'lisli laws ii in Mani-

toliM, iiM'oiiiiiieinlea uie Act lie
siiiii'lioiieil. I'rov. Tjey., 1HH7.

If the provinces atteinpt to effect
till' iiiiliiraliziilioii of a person who
is a cili/i'ii of a foi»'i<;n state, this
would lie olijci'ted to, as this is one
of tile siilijects left exidlisively to
the Doiiiiiiioii l'iirliaiiient,iiii(l Acts
havclu'eii passed acconlinj^h . <SV<'
31 Viei. e. (i(5. (I).), M Vict. c. 22.
(I).), and Acts of linpei'iiil Parlia-
uieiit (j^iven above). Prov. Ia'jS..,
1H87.

Ill the licence cases in the
United States, Tlinrlow r. Massa-
chusetts; Fletcher r. State of Rhode
Island; and Peivce r State of Xew
Hiiiiipsiiiiv, Jan. ' , 4(i S. (.'.
U.S. (.-, How.) 5 ney, C.J.,

said (p. ')8.)) : ' „• ca.se of

Chirac r. Chirac, 1H17, loS.C.U.S.
(2 Wheat.) 25!), which arose iinchT
tlie j^rant of power to cstalilish a
iinifuini rule of naturalization,
wiieiv the Court speaks of the
power of Coii}i;ress as ex(;lu.sive,
they are merely .sanctioning the
ar<;uiiieiit of coiin.spl stated in the
precedinj; sentence, which placed
i the invalidity of the naturalization
un.lor the law of Maryland, not
I solely iipou the <j;rant of power in
|the Coustitutidii, hut insisted that
Ithe Miiiyland hiw was 'virtually
Irepealed by the Constitution of the

United States, and the Act of Aliicws.
Niitiirali/.ation enacted by Con-
}frcss.' [Undoubtedly it was so
repealed, and the opposing counsel
ill the ease did not dispute it. For
the law of the United States eover.o
e\eiy part of the Union, and there
could not, therefore, by possibility
be a State law which did not come in
eoiillict with it. And, indeed, in
this case, it might widl have I .-en
doiilited whether the grant in the
Coiistitntion itself did not abrogate
the power of the States, inasnuieh
US the Comstitution also proviilcd,
that the citizens of eaidi Stiite should
be entitled to all the privileges and
inimniiitiesof eitizen.s in these\eral
States; and it would seem to bn
hardiv consistent with this provision
to allow any one State, after the
adoption of the Constitution, to
exercise a power, which, if it
operated at all, must operate be-
yoiul the territory of the State, and
compel other States to acknowledge
as citizens those whom it might
not be willing to receive. . . I am
not aware of any instance in which
the Court have spoken of the grant
of power to the general (lovernment
as (ixeluding all State power over
the subject, unless th<\v were de-
ciding a ease where the power had
been exercised by Congress and a
Strife law came in conilict with it.
In oases of this kind the power of
Congress undoubtedly excludes and
displaces that of the State, becau.se
whenever there is a collision be-
tween them the law of Congress is
supreme ; and it is in this sense
only, in my judgment, that it has
been spoken of as exclusive in the
opinions of the court to which I
have referred."

(26.) Marriage and divorce.'

^ Notwithstandingthegcneral hm-
JuagG of this suh-sectionof sec. 1)1,
10 one can doubt that the " solem-
iizatiou of uiarnage " [sec Notes,
-ec. 92, siib-sec. 12] is still within
lie exclusive authority of the legis-
»ture of the provinces. See Sir

Montague Smith in Citizens' In- Divoncu.
surance Co. of Canada v. Parsons,
43 U. C. Q. B. 2(51 ; 4 O. A. R. 90 ;
4 S. C. R. 215; in P. C. Nov. 26,
1881, 7 App. Cas. 96; 51 L. J.
P. C. 11; 45 L. T. 721; sec. 92,
sub-see, 13.

102 B.N.A. ACT, s. 91 (27).— ADMINISTRATION OF LAW.

(27.) The criminal law, except the constitution ol
courts of criminal jurisdiction, but including
tlu; i)roccdure in criminal matters,^

HoniiK r. Thi;

QlT.KN.

' Compjire with sub-sees. 14, 15,
sec. 92.

(Vinunis.siom'rs lo regulate \hv
liquor tniffie are a nninieipal
in.stitution. The Legislature of
Ontario, bv the Liquor License
Act, 1877," K. S. O. c. 181.,
authorizeVl the appointment of
License Connni.ssioners to act in
each nmuicipalitv of the province,
and empowered theui to pass rules
defining the conditions reipiisite for
obtaining tavern or shop licenses
for the .Side by retail of spirituous
liquors within the municipality,
&c.,with power to impose penalties,
and for the .second offence imprison-
ment with hard labour foi' a period
not exceeding three months.

In HoD(iE V. The Quken [in
the V. of App., Ont., 30 .Inne
1882, 7 O. A. 11. 247], the Judicial
Connnittee, Dec. 15, 1883, 9 Ai)p.
Cas. 117 ; 53 L. J. P. C. 1 ; 50 L. T.
301, held that this Act was intra
tvVc* the provincial h'gislatiu'e, being
within the subjects of sec. 92, an(l
" within these limits of subjects
and area the local legishitiu'e is
supreme, and has the sjinie authority
as the Imperial Parliament, or the
I'arlianu'ntof the Dominion, would
have ha<l under like circnmstiinccs
to confide to a municipai institution
or ]}'ni,- of its own creation au-
thority to make bye-laws with the
object of carrying the enactment
into oiH'rution and efft^ct " [9 Api).
("as. p. 132]. And secondly, coining
as they do within the powers of the
local legislature, then sub-sec. 15,
sec. 92, "which provides for 'liie
imposition of punishment by fine,
penalty, or imprisonment for en-
forcing any laws of the province
made in relation to any matter
»'oming within any of the classes of
sidijects enumerated in this section *
is applictd)lc to the case before us.

and is not in conflict with miIi-
sec. 27 of .sec. 91 ; under these
very general terms, ' the imposition
of punishment by imprisonment for
enforcing any law,' it seems to their
Lordships that there is imported an
authority to add to the confinement
or restraint in prison that which is
generally incident to it — ' hard
labour ' ; in other words, that ' im-
prisonment ' there means restraint
by confinement in a prison, with or
withont its usual accompaniiiient,
* hard hd)our.' " [See sec. 92, sub-
,sec. 9.]

The Parliament of Canathi hii>
full power to [wss an Act (the
Canada Temperance Act, 1878) to
prevent the side of liquor, e.xeejit
in whole.sde (juantities, wherever
put in force by the municipality,
and may attach to the side of liquor
fine or punishment of a criniiual
nature. See Ktissell v. The Queen,
in S. C. N. B. 1881 ; in P. C,
June 23, 1882; 7 Ajjp. Ca.s. 829;
51 J. L. P. C. 77; 4{) L. T. 88!)
[sec sec. 92, sid)-sec. 9], aHirniing
the City of Fredericton v, the
Queen, 1879, 19 S. C. N. R (li
Pugs. & B.) 139, April 13, 1880;
3 S. C. 11. 505 [see ante, p. 60],

By a provincial Act in force ev erv
debtor imprisoned under |)iot'ess
from any court was entitled to
apply for his discharge, and when
the county courts were establi.^iied
it was held competent for the pro-
vincial legislatire to provide; liy lui
Act that prisoners arrested uudir
process issuing from them should Ix'
entitled to their dischargt; as in
other cases, and siu'h an Act is noi
ultra vires. Johnston v. I'ovnt/.
April 5, 1881 ; 14 N. S. R. (2 Uh*.<.
& Geldert) 193.

The Dominion Act, 32 & 33 Viot
c. 31. s. 78, inter alia, provided
that in case a justice before whom
any conviction t<tkes j lace ncgleet>

N OF LAW

B.N A. ACT, 8. 91 (27).— ADOPTION OF LOCAL LAW. 103

or refuses to make the return of the
conviction to the next general or
quarter sessions, he should forfeit
the sum of ?80, to be recovered in
any court of record in the pro-
vince. An action was brought for
the penalty in the Westmoreland
county court. New Brunswick. The
Provincial C. S. c. 51. enacts that
the county courts shtill not ha\e
jurisdiction over actions against jus-
tices of the peace. It was held the
Dominion Act overrode the pro-
vincial Act. Ward v. Reed, Nov.
1882; 22 S. C. N. B. (I Pugs.
& T.) 279.

Alien, C.J., said : " I think
there is no doubt about the power
of the Dominion Parliament to
autiiorizp any court in this pro-
vince to try such an actioa as this.
It is a matter connected with th(!
achninistration of the criminal law,
which Wlongs exclusively to the
Dominion Parliament, which has
the right, in legislating upon a
luiitter within its control, to give
authority to the existing courts in
the provinces to try such matters.
This principle was e.st4iblished in
Vaiin ('. Langlois [,9CP ante, p. 18],
13 S, C. 11. 1, where (jues-

tion arose as to the right of Parlia-
ment to imposts on tlie judges of
the superior courts of the sevend
IHovinces in the Dominion the
duty of trying petitions respecting
controverted elections of uuunbers
of the House of Commons. Rit-
cliie, I'.J.. in that case, V.i S. C U.
p. 20, says ; ♦ Whether liiis Act
(the Controverted Elections Act) is
to \w treated asih'daring the courts
named Dominion Election Courts,
";• "ui'i'n.i it is to Ik' treated as
merely conferring on iHirticulai-
t'ourts already organized n new and
iwnliar jurisdiction, is a matter to
my mind of no great importjince,
I «s I think while they clearly ha\ e
' the power of est<d)lishing a new
Dominion court, they have like-
I wisp the power, when legislaiing
within their jurisdiction, to require
the established courts of the resiwc-
tive provinces and the judges then--

Keo. r.

O'Hnl'UKK

of . . to enforce their legislation.' HoDOK f. Thk
Tiiis court has often acted on that Q''*'**-
principle, in pro.secutions under the
Canada Temperance Act, which by
sec, 103 gives jurisdiction over i)ro-
.scutions for violations of the Act in
this province to police magistrates
and certain other officials."

In Reg. v. 0"11«)itrke, Dec. 2,
1882, 1 O. R. 164, the question
was raised whether the selection of
jurors was a matter of ])rocedure
or of the con.stitution of the court.

The Dominion Parliament Crimi-
nal Procedure Act, 32 & 33 Vict,
c. 29., declares every person (piali-
fied and sunnnoned to serve as a
juror in ciiminal cases according
to the law in any province is de-
clared to be (pialilied to .serve in
such [Tovince. The legislatiue of
Ontfuio, by 32 Vict. c. G., 42 Vict,
c. 14., una 44 Vict. c. G., altered the
law as to the selection of jurors as
previously ])rovided for under C. S.
U. C. c' 31. and 26 Vict. c. 44.
It was held the Dondnion Act was
not a delegation of its jwwers.

Hagarty, C.J., siud : *' It seems
to me very clear that the Dominion
Parliament, by this Act of IHGJ),
adopted and, as it were, confirmed
the existing provincial jury laws,
and also declared that future pro-
vincial laws on that subject shoidd
be equally adoi)ted and confirmed,
subject, however, to their own right
of control by any existing or future
Act. This need not l)e read as
technicjdly a delegation of their
own authority, but rather, in the
language of WiLson, C..I., an ac-
cepttmce of the provincial law, and
a legislation by relation and refer-
ence to that law. But if it were
du'cclly a delegation of power, I am
not prepared to hold it erroneous.
The Dominion Parliament is su-
preme in criminal law and pro-
cedure, and may, I assume, exercise
its powers in such fashion as it
may deem ex|MHlient. The only
cpiestion with me is, whether it has
clearly saiu-tioned and adopted the
statute law of Ontario, under which

1; i

I
il

104 B.N.A. ACT, s. 91 (27).— DOUBLE LEGISLATION.

In re Bodciier

1 ■

Ex parte
Pillow.

Rko. v. tile jurors were brought into court

O'RocRKE. i„ (iii^ ^,^^^_ i think this has lu't-n

(loue, and that the Ontario Act
niu.st govern so h)ng as the Do-
minion I'arliauient has not inter-
posed or enacted any )>ro\ision in-
consistent therewith."

It was held iv re Boucher, 1.3
Nov. 1879, that tlie 38 Viet. c. 17.,
giving- power to the police magis-
trate to try in a summary manner
felonies and misdemeanours, wns
intra vir/'s of tlie Dominion Par-
liam(>nt.

In that case, on an appeal from
Coiu't of Appeal, Ontiuio, against
a conviction by the police magis-
tmte for nidawfuU}* wounding, it
was .held no appeal lay to the
Supreme Coin-t. llitchie, C.J. :
" As regai'ds habeas corpus in
criminal matter.^, the Court has oidy
a concurrent jiu'isdiction with the
judges of the superior courts of the
vnrious province.s, and not an ap-
pellate jurisdiction, and there is no
necessity for an appeal from the
judgment of any judge or coint or
any appellate court, becjiuse the
prisoner can come ilirect to any
judge of the Supreme Court in-
dividually, and ujion that judge
refusing the writ or remanding the
prisoner, he could take his appeal
from that judgment to the full
comt." Dig. 8. C. R., 1893, 327.
Eeu. r.I'mrTiK. The (puistiou was raised in
Ueo. f. Prittie, March 15, 1878,
42 U. C. y. B. G12, whether
liny license under a provincial Act
could issue in a place where the
Dominion Temperance Act, 18G1,
was adopted, and Wilson, J., was
of opiuioii the Ontario Legislature
had not the power to nuike the
provisions of the licensing Acts
have the full force • nd effect in a
municipality where the Temperance
Act is in force, so as to make an
offence against the one (the
" keeping " for sale under the
Domiuiou Act) au offence against
the other Act. " That is direct
legislation upon criminal law
and procedure in criminal matters
which is nol in any way ut'cesstiry

for the due exei'cise of their own
proper power. Why is not the piuty
to Id- convicted under the statute
and for the violation of tiie statute
he has contravened ? Why is lie,
because he has done an act afiniiw
one statute, to be proseeutf<l fdi
breaking another he has never in
fringed ? I think that cMimoi
be done." Conviction (piaslipil.
Harrison, C.J., and Arnunu', ,1,,
concurred.

Ill E.v parte PilloAV and the Citv
of Montreal, Superior C, 5 Jiilv
1883, 27 L. C. J. 216, it was lielll
that the power of the Doniiiiion
Pailiament to pass a general law dl
nui.sances as incident to its right to
legislate as to public wrongs wib
not incompatible with a right in
the piovincial legislatures to |)a»
the clause authorizing niuiiiii|Ml
institutions to pass bye-laws ■ ''li
the object of abating insalubrious
or dangerous establishments in »
piovinee. And the Court iiuoteil
Tessier, J., in Poulin and the Cilv
of Queliec, 7 Q. L. K. 337 : " Is it
not part of the municipal institu-
tions to make disciplinary iiml
police i"egulations to prevent dis-
order on Sunday and at niglit, liv
compelling t4ivern and .saloon kepp-
ers to keep their drinking |ilii(T«
closed during that time ? Can tlieiv
\)c any question as to the power nf
our local legislature, or even (nii
municipal corporation, to pieveiii
the side and storage of guniiowder
ext'ept in certain places, au<l willi
certain precautions for the safdy
of the public? And yet this is »
matter of tnule, like any otlier."
There the petitioner argued it wii>
a matter of criminal law, and f lieiv
fore assigned exclusively to tlu'
Dominion Parliament, but siuli
[ilea was not ".plield.

In Keg. v. Stone, Dee. 23, 1892,
23 O. R. 46, it was held the Act 'f.
Viet. c. 43.of the Dominion Pariin-
ment to provide against frauds in tiic
supply of milk to cheese factories,
&^\,-V!as intra vire», although there
was an Act of the Ont^uio Lrgislu-

B.N.A. ACT, s. 91 (27) — OVERLArPING LEOrSLATION. 105

tiiiv, 51 Vict. c. 32., for the siiine
|im|xw.

Rose, .1., siiid : The tirst objcc-
tidii WH.S supported by fin aigiunciit
on the decision in llcg. v. VViison,
17 0. A. li. 221, wImto u .sonu'what
similar Act of the Ontario Lcgis-
liitiue, 51 Vict. c. 32., was con-
sidered, and hehl to be intra rire^
the Oiitin-io Legislature, the opinion
ill that ca.se being that the Act of
thi' i^islatnre merely protected
piivctc rights. That case was con-
sidered by tliis Court in Ueg. r.
Hart, 20 O. R. Gil, where the
nsiilt of the decision in Rig. r.
Vfamn was stated to be that the
provincial Act was not a criminal
cimctiiient, although its provisions
wore ciif )rceable by fine and im-
piiiwiiuient. As has beeii pointed
out in Reg. v. Wa.son, the Act of
tiie legislature differs in form frf)m
tiie Act of Parliament, in that
mider the former the offence con -
sists in doing certain things with-
out notifying in writing the owner
or manager of the cheese oi- butter
iimnul'iictory. The Act in question
forbids all persons doing tlie acts
therein stated; and is in form simi-
lar to other Acts found upon the
|mges of the R. S. of Canada creat-
ing crimes. It was urged upon ns
that if the legislature hatl power
to deal with the subject, it followed
that it wasnot within the jurisdiction
of Parliament. I think this is not
^. In my opinion, Mr. Edward
Blake in his argument in Keg. v.
W'asou correctly stjited the law as
follows: — 'The jurisdiction of the
provinces and the Dominion over-
liip. The Dominion can declare
anything a crime, but this only so
IIS not to interfere with or exclude
the |)()\vers of thi- i)rovince of deal-
ing with the same thing in its civil
ii.''pect and of imposing sjinctions
for the observance of t he law ; so
that though the result might be an
intouvenient exposure to a double
liability, that possibility is no argu-
ment against the right to exercise
the power ; ' or as put by Osier, J.
[in the .same case, Reg. i'. Wnson,

17 O. A. R.], p. 241: 'I sup- Reo. w. Stonk.
po.se it will not he denied that
the latter, namely, the I'arliament,
may draw into the domaii\ of crim-
inal law an act which has hitherto
been punishable only under a pro-
vincial statute.' MacLennan, J., in
the .siuiie case, p. 248, referring to
the Adulteration Act, R. S. C.
c. 107. s. 15, used language which
I think is apposite. ' The Act in
question seems to me to be very
different from the Dominion Act.
The latter is universal in its scope
and application, and prohibits the
forbidden acts by all persons whom-
soevvi, under all circum.stances, and
in all places through the Dominion,
while the provincial Act is continecl
to dealing lietween these two par-
ticular kinds of manufacturers and
their customers. The one has all
the features of a i)ublic criminal
law passed in the interest of the
general public ; the other is merely
the regulation of the mode of ean-y-
ing on a particular trade or busi-
ness within the province, so as to
secure fair and honest dealing be-
tween the parties concerned.' Had
there been no provincial statute, I
do not think it could have been
argued that the Act in question
did not cieate a crime, ar.d was not
within the power of Parliament.
A|)art from any distinction l)etween
the two Acts as to the provisions
and enactments, I am of opinion
the passing of a provincial statute
within the powers of the legislature
cannot in anywise take away from
Parliament the right to legislate
Inspecting the same matters and to
prohibit them, and to enforce the
prohibition by such punishment by
way of fine or imprisonment as
may be deemed best. . . I think
the quotations I have made so com-
pletely cover the ground, and so
clearly and distinctly express the
conclusions at which I have arrived
fronx a perusal of the arguments
and opinions in that ca.se, that I
cannot hope to express more clearly
the re.tult." ftalt, C.J,, and Mac
Mahon, J,, concurred.

!li

fi'j;

f ! ^

106 B N.A. ACT, s. 91 (27).— QUASI-NATIONAL SENSE.

Niii

The Ontiuio Acts, 51 Vict. c. 32.,
providing against frauds in selling
milk, cheese, and butter; and
52 Vict. c. 15., providing for ap-
peals on prosecutions to enforce
penalties and punish ofl'ences under
provincial Acts, were both held
intra vires.
Reo. v. Wason, In Heo. v. Wason, March 4,
1890, 17 O. A. E. 221, Hagarty,
C.J.O., said: "If it be an Act
merely to oreate offences in the in-
terest of public morality, it may be
argued tliat it is trenching on the
forbidden ground of ' criminal law.'
If it l)e, as I think it is, an Act to
regulate the business carried ou at
these cheese factories, with reason-
able penalties to ensure obedience
to its regulations, I consider it to
be within the powers given by the
Constitution to the provincial legis-
lature.

Burton, J. : " The words used
both in sections 91 and 92 are ne-
cessarily very general, but those in
91 were intended to apply to sub-
jects of national and geuerp'. con-
cern. We are all aware ihat for
many years after confederation, dis-
cussions were constantly arising as
to the scope of the words, * Regu-
lation of trade and commerce,' it
being frequently contended that
they were sufficiently general to
include even minute rules for regu-
lating a particular trade or business,
a contention not only frequently
urged, but found not to be without
support in judicial dicta. [See
Citizens' Insurance Co. v. Par-
sons, 4 S. C. K. 294, 341 ; Beg. v.
Lawrence, 43 U. C. Q. B. 176.]
But it has long since been authoi itu-
tively decided that, reatl in connec-
tion with other portions of the Act,
those words must l»e held to r(>fer
to regulations relating to trade and
commerce in their general anil
quasi-national sense, and not to the
contracts or conduct of particular
trades. So in reference to the
words found in sec. 91, * criminal
law, including procedure,' read in
connection with the powers grante<l

to the provincial legislatures, I
apprehend these words must be
held to mean the general public
criminal law as existing either by
statute or at common law at the
time of confederation, or such mat-
ters as may by the Parliament of
the Dominion be declared to bo
criminal, and would not include
such penal offences as might in
accordance with popular language
Ixj comprised under the phrase
'criminal law,' but which it is within
the power of the provincial legis-
lature to punish."

Osier, J. : The criminal law, so
far as regards human legislation, in
its ultimate object, even when clciil-
ing witli public order, safety, or
morals, is chiefly concerned witii
preventing and punishing the vio-
lation of personal rights and rights
respecting property, and hence iu a
very wide sense with property and
civil rights. But while in this
sense, and in making provisions
applicable to the community at
large, whether we speak of all the
conferated provinces or of one, the
right to legislate rests with Parlia-
ment, I do not see how the right
can be denied to the proviutial
assemblies to legislate for the better
protection of the rights of proixTty
by preventing fraud in relation to
contracts or dealings in a particular
business or trade, or upon other
subjects coming within sec. 92, and
to punish the infraction of the law
in a suitable manner, so long, at all
events, as Parliament has not occu-
pied the precise field ; for I suppose
it will not be denied that the latter
may draw into the domain of crim-
inal law an act which has hitherto
been punished only under a i)io-
\ incial statute. [Hodge v. Beg., sub-
sec. 9, sec. 92 ; 9 App. Cas. p. 131]
But if a particular species of fraud
has not been converted into a crime
by Dominion legislation, I think
that the local legislature must be
at lilHTty to deal with it for the
better protection of the class of
persons immediately affected by it.
The thing forbidden is not iu such

B.N.A. ACT, 8. 91 (27) — LEGN. AND FORGERY. 107

case converted into a crime merely
l)ec'ause it Imppens to Im- also mo-
rallv wrong and dishonest, more
than any other thing which they
may lawfully forbid becomes a
crime becjuise it is forbidden under
11 penalty"

IdReo. v. Toi.and (C. p.), July
28, 1892, 22 0. 11. 505, it was hohl
ultra vires of the Oiittirio Legisla-
ture, 53 Vict. c. 18., to authorize
police magistrates to try and
convict persons charged with for-
(rcrv; but in Reg. v. Levinger
[q." B), Dec. 24, 1892, 22 O.
1{. 690, Armour, J., held the Act
of Legislature of Ontario, 53 Vict.
{'. 18. s. 2., so far as it provided
tiiat the courts of General Session
(if the Peace should have juris-
diction to try any person for any
offence under anj' of the pro-
visions of sees. 28 to ''' of the
W. S. of C, c. 165., an Act res-
]iccting forgery, was quite within
ihc powers of the Legislature of
Ontario, ns being in relation to the
constitution of a provincial court of
criminal jiu'isdiction, and did not in
any way trench upon the exclusive
authority of the parliament of Canada
to make laws in relation to criminal
law and criminal procedure, it not
assuming to deal with the procedure
iu sucli courts of General Sessions
of the Pence iu the trial of any
such offence."

In re County Courts of British
Columbia, Dec. 13, 1892, 21 S. C. R.
416, it was held that an Act of the
Legislatiu-e of British Columbia,
|irovi(ling that a certain county
court judge should as such act and
|H.rform the dutiesin another district
than that which ho was appointed
lo until a judge is appointed, is valid.

Criminal Law. — The Ministers
of Justice have always protested
when the locid legishiture consti-
tutes an offence a " misdemeanour "
a- Ijcing a branch of the criminal
liiff, and not within the legal com-
petence of the provincial legisln-
tim>. See Prov. Leg., 1880, p;..
Wo, 715.

Anything trenching upon the cri- Criminal Law.
minal law so far as it relates to
general matters is not passed by the
Minister of Justice ; for instance, in
the Registration of Electors and
Ballot Act of Prince Edward Island,
1877, sec. 101, which provided that
whoever at any time before, during, Reo. v.
or after the polling " forge or Toland.
counterfeit, or fraudulently alter,
deface, or destroy any ballot paper
or the initials of the sheriff." The
Minister of Justice, T. A. Lash,
2 May, 1878 : So far as it relates
to the coimtei-feiting or fraudulent-
ly altering any ballot paper, the Act
clearly entrenched on the criminal
law, and he recommended its repeal
or araeudmeut so as to obviate this
objection. So also where the
Ontario Legislature passed an Act,
31 Vict. c. 6., sec. 2., which dechir-
ed that any wilfully false statement
made before conmiissioners autho-
rized to be appointed under the Act
should lie a misdemeanour pimish-
ablein the .same manner as wilfuland
corrupt perjiiry. The Minister of
Justice, John A. Macdonald, held
this was legislation respecting the
criminal law, which appertains
solely to the Dominion Parliament,
and ho recommended it \k re-
l)ealed. And so it was. 32 Vict.
(Out.) c. 27. 18(59.

With regard to an Act of the
New Brunswick Legislature, 19
Vict. c. 25., sec. 52, which provided,
inter alia, that all fines, penalties,
or forfeitures recovered before the
police magistrate of the town of
Marysville for any violation of any
statute or common law shall (.xo
far as the .same shall not be in
conflict with any existing law) W'
paid to the town treasurer. The
Minister of Jiistice reported, 28
March 1887: ''In view of the
suunnary jurisdiction exercised by
police magistrates under the
criminal law of Canatla [11. S.
C. c. 157. c. 174], it is desirable
that in all such cases as this the
langTiage of the statute should show
dearly that there was no intention
to attempt to ihspose of fines.

I: ■

108 «.N.A. ACT, s. !»1 (28), (29).— RELIEF BY COURT,

Okimiwal Law.

penalties, or I'orfeitiu'cs I'ecovpi'od
or enforced under the laws oi'
C'aniida eontnuT to anv disposition
thereof from time to time made by
the Parliament of Canada." Prov.
Leg., 1887, 1()5.

The Legi.slatnre of Ontario passed
un Act, 38 & 39 Vict. c. 1(5., which
provided, inter alia, that the High
Court shall have power to relievo
against all penalties, rorfeiture.s, and
agreements for li(piidated damages,
and in granting such relief to impose

such terms as to costs, expenses,
damages, comi)en,sation, and all
other nuitlers as the cotn-t think>
fit. The county courts ami divj.
sion courts .shall have like pnwr
(subject t(t appeal) in remind to
cHuses of action witiiin their jmiv
diction. 'J'he Minister of .Tiisticc,
J. S. O. Thomson, considered tlp>
applied only to matters within t!ic
jurisdiction of the provincial Ipijis.
lature, and left the Act to it>
operation.

(28.) The establisliment, maintenance, and manage-
ment of penitentiaries.

(29.) Such classes of subjects as are expressly ex-
cepted in the enumeration of the classes of
suhjcets by this Act assigned exclusively to
the loi^islatures of the j)rovinces.

^ And any matter coming within any of the classes
of subjects enumerated in this section shall not be
deemed to come within the class of matters of a local
or private nature comprised in the enumeration of the
classes of subjects by this Act assigned exclusively to
the legislatures of the provinces.

' Retid this with conimenceuient of sec. 91.

B.N.A. AC'T, s. 92.— PLENARY POWER.

109

Exclusive Powers of Provincial Legislatures.

92. In e<ach province the legislature may exclusively Subjects of
make laws in relation to matters coming within the v^nc^ariegisin'.
classes of subjects next herein-after enumerated; that "°""
is to say,—'

1 Tliis section "confers j)o\vers
as plomiry and as ample within
lilt! limits prescribed bv the section
,is tlie linpi-rial Parliament in the
|ileuitude of its power possessed,
;iii(l could l)estow. Within those
limits of subject and area the
luciil legislature is supreme, and
has the same authority as tlie lui-
•crial Parliament, or the Parlia-
.iient of the Dominion would have
hail under like circumslances to
(.'oafide to a muncipal institution or
l)odv of its own creation authority
to make bve-laws." Hodge c.
The Queen," 46 U. C. Q. B. 141,
JOJuue 1H82, 7 0. A. R. 246;
ill P. C. Dec. 15, 1883, 11 A])!).
Ciis. p. 132, 53 L. J. P. C.
1; 50 L. T. 301, where held
ibei)rovince of Ontario could en-
;iit ief;iilations as to the liquor
tiartic and annex penalties to the
Invac'h of such regulations. [^See
Mili-scc. !).] This case was coni-
iiunteil iiu in Maritime Bank of C"a-
iiiiihi V. Xew Brunswick Receiver-
(Iciieral. Julv 2, 11892] A. C.
437; 01 L. j;P. 0^75; 67 L. T.
121); reported below, 17 and 20
S, I'. U. ()57, ()95. [See N^ote, sub-
str. 13, see. 92.]

It was argued in Theberge v.
Landry, in Quebec Q. B. 29 May
1h:6, in P. ('.Nov. 7, 1876, 2 A pp.
(as. 102; 4(5 L.J. P. C. 1; 35 L. T.
'i40, tiiat the Quebec Controverted
■^Icnions Act, 1875, 38 Vict. c. 8.

90, which enacted the judgmentof
the superior court in sucii ca.ses shall
not 1)6 susceptible of appeal, was
iiiconsisteut with sec. 92 of British
North Auierica Act, 1867, Iwcause
it was ultra vires of the provincial

legislature to take away the right
of appeal.

By the Quebec Act of 1872
(repealed by (Quebec Act of 1875)
the decision of controverted eiee-
tious was transferred from the
legislative assembly of the province
to the superior court.

Lord Cairn.s, L.C., delivered
the judgment of the .Judicial
Committee. " Their Lordships
<lesire to state distinctly ihat
they do not desire to imply any
doubt whatever as to the general
principle, that the prerogative of
the Crown cannot be taken away ex-
cept by express words, and they
would be prepared to hold, as often
as has been held before, that in
any case where the prerogative of
the Crown has existed, precise
words must be shown to take away
that prerogative. But, in the opi-
nion of their Lordships, a somewhat
different question arises in the jue-
sent cjise. These two Acts of
Parliament, the Acts of 1872 and
1875, are Acts p»'culiar in their
character. They are not Acts
constituting or providing for the
ilecision of mere ordinary civil
rights ; they are Acts creating an
entirely new, and up to that time
unknown, jurisdiction in a particu-
lar court of the colony for the
purpose of taking out, with its
own consent, of the legislative as-
sembly, and vesting in that court
that very peculiar jurisdiction,
which, up to that time, had existed
in the legislative assembly of de-
ciding election petitions, and deter-
naning the status of those who
claim to be niemlHTS of the legisla-
tive assembly.

110

B.N.A. ACT, 9. 92.— NEW TRIBUNALS.

TiiEBBHOE V. " A jurisdiction of tluit kind is

Landry. cxtrt'inciv spcciid, and one of the

obvious incidents oi' fonscqucncc
of .su(!h II jurisdiction, by whomso-
ever it is to be exercised, should be-
exercised in a nianiuT that should
ivs soon as possil)le become con-
elusive, and enable the i-onstitu-
tion of the legislative asseniblv to
be distinetl)- and speedily known."
[His Lordshi)) read sections HO,
!)1, md 120.] The object wliich
the Icf^islature had in view was to
have n decision of the superior
court, which, once arrived at, should
be for all purposes conclusive.

" But if the jud<»ment of the
superior court should not be con-
clusive, the argument is that the
power which is to 1k' lirought to
bear to review the ju<lginent is the
power of the Crown in Council.
Now, the subject-matter, of the
legislation is extremely peculiar.
It concerns the rights and privi-
leges of the electors and of the
legislative assembly to which they
elect mend)ers. Tliose rights and
privileges have always in every
colony, following the example of
the mother country, been jealously
maintained and guarded by the
legishitive assend)ly. Al)ove all
they have been looked upon as
rights and privileges which pertain
to the legislative assendily, in
complete independence of the
Crown, so far as they pro{)erly
exist. And it would be a result
somewhat snr|)rising and hardly
in consonance with the general
scheme of the legislation, if, with
regard to rights and privileges of
this kind, it were to be found that
in the last resort the determination
of them no longer belonged to the
legislative assendily, no longer
belonged to the supei-ior court
which the legislative assembly had
put in its place, but belonged to
the Crown in Council, with the
advice of the advisers of the Crown
at home, to be determined without
reference either to the jiidgment of
the legislative assembly or of that
court which the legislative as-

se?nbly had substituted in its plnw.
These are considerations wliicli
lead their Ii()rdslii|)s not in anywnv
to iidVinge, which they would li.
far from doing, upon the genornl
principle that the prerogative df
th(! Crown, once e.stabli.shed, can-
not b(! taken away except l)v n-
press words. . Their Lonl.

ships have to consider not whctlier
there are express words hciv
taking away the prerogative
but whether there ever was
the intention of creating this
tribunal with the ordinary incj.
dent of an appeal to the Crown,
In the opinion of their Lordsliips,
adverting to thes(^ considerations,
th(>flOth section, which says thattlic
judgment shall not be susceplilile
of appeal, is an enactment wliici:
indicates clearly the intention nf
the legislature under this Act—
an Act which is assented to on the
part of the (^own and to which
the Crown therefore is a party—
to create this tribunal for the pnr-
pose of trying election petitions in
a nuuiner which shouUI nnike its
decision linal to all ])urposes, nnil
should not amiex to it the incident
of its judgment being reviewed hy
the Crown under its prerogative."

" There is not in this case the
prerogativ*! right to admit an ap-
peid."

But their Lordships held that
even if there had been the po\v(;i' of
admitting an appeal, this was not a
case in which an appeal ought to
Ik> admitted.

On the question whether, not
]>eing an appeal generally, "tlieii>
was in the finding of the judge a
subordinate part which ought to
be brought by way of review liefoiv
this tribunal, it was said the jiidfre
had found the petitioner was person-
ally guilty of corrupt practices,"
and then that the Quebec Act, liy
sec. 267, provided that if it was
proved l)efore the Court that cor-
rupt practices have l)eencounnittcd
by or with the actual knowledge of
any candidate, the candidate slionhl
be incapable of lieing eleetedand sit-

B.X.A. ACT, s. 92 (I).— NO PREROGATIVE.

Ill

ting in, or voting for a member of,
thelpgislativeassembly, "Mr. Ben-
jamin conitndf'd that the Aet of
Parliament, so far as it engrafted on
(lie decision of tiie judge thi.s deela-
nition of ineapneity, was tiltm vires
tiip power of the legislature of the
provinee. Upon that point their
Lordships did not think it neces-
sary to express any opinion wluit-
ever."

The first step to be taken with
a view to test the validity of an
Art of the provincial legislature
is to consider whether the subject-
matter of the Act falls within any
class of subjects enumerated in
sec. 92. If it does not, then the
Act is of no validity; if it does,
then these further questions nuiy
arise, namely : " Whether, notwith-
standing that it is so, the subject of
I lie Act does not also fall within one
of the enumerated classes of .subject
ill sec. 91, and whether the power
of the provincial legislature is or
is not thereby overborne ? " See
Lord AVat.sou delivering judgment
in Dobie v. the Temporalities
U().ird, in Quebec Q. B. June IJ),
1SS0,2G L. C. J. 170; in P. C.
Jan. 21, 1882, 7 App. Cas. p.
U9; 51 L.J. P. C. 26; 4G L.T.I.

Where the subject - matter of
a provincial Act is not divisible

according to tht^ limits of the pro- Boukooin'!
viiicial authority, a Dominion Act f'**"-
\H required to deal with the whole
subject-matter. Eut where by a
single Act of the Dominion Parlia-
ment there had been constituted
two separate corporations for the
purpo.se of working a mine within
the province of Upper Canada, and
the other a mine in the province of
Lower Canada, the legislature of
(Quebec would clearly have luul
authority to repeal the Act so far
as it related to the latter mine and
the corporation by which it was
worked. Ibid.

Where a railway is made a
federal affair and deemed to l)e
constructed under a special Act
of the Dominion Parliament, al-
though previously a railway incor-
porated by a proviiu'ial Act, a pro-
vincial Act athrming the transfer
of the whole railway, with all its
rights and property, to the pro-
vincial government, is not sutK-
cient to ija.s.s even some inchoate
rights. There nnist be an Act of
the Dominion Parliament. Bourgoin
V. La Compagnie du Chemin de
Per de Montreal, Ottawa, et Occi-
dental, 23 L. C. J. DO; in P. C.
Feb. 26, 1880, 5 App. Cas. 381 ;
49 L. J. P. C. 62; 42 L. T.
414.

(1.) The amendment from time to time, notwith-
standing anything in this Act, of the con-
stitution of the province, except as regards
the office of Lieutenant- Ciovernor.'

'Att. -Gen-, ok Canada v.
Att.-Gk.n. of Ontario, 1892,
1!) O. A. R. 222; 20 O. R.
31, was an action seeking a de-
claration that the Ontario Act,
51 Viet. c. 5., respecting the execu-
tive administration of the laws of
Ontario was ultra vires of the pro-
vincial legislature. The (Miancery
Division [Boyd, C, Ferguson, Ro-

bertson, JJ.] decided in favour of Att.-Gen. op
its validity ; and an appeal argued Canada v.
iMjfore Hngarty, C.J.O., and Bur- Att.-Gen. op
ton. Osier, and MacLenuan, J J. A., Ontario.
was dismissed. Edward Blake, Q.C.,
in his argument for the respondents,
said : " Then when you come to
92 — ' Exclusive powers of pro-
visional legislatures,' you find
' tli(» amendment of the Constitu-
tion,' a power of the very highest

112 B.N.A. ACT, s 92 (1).— AMENDING CONSTTTr TION,

Att.-Gri». o»
Canada r.
Att.-Okn. (V
Ontario.

Qi'iRT r. Reci.

and most sovproipii cliiirnctfr. The
B. N. A. Act, llifrt't'on", niiiy lio
ninoii(k'(l liy tlic proviia-iiil lt'<;is-
liitiirt> in tiiis most vilnl point, a
|K)wer wliic'ii tin- ('uninliiiii I'lirlia-
mi'Ut (Iocs not cnjov ii.s to its coii-
stitntion, a power wliicli imlcoil
could not there subsist without
certain safefjuai-ds, (Iipcks and
limitations, else the IVdcnd I'oi-m
of the Constitution and tlic com-
pact on wImcIi it was liascd would
l)c imperilled. The Canadian Pai'-
liamcnt has at present no power of
amending the ('onstitiiliou of Can-
ada ; while the |>ro\incial le;fis-
latures ha\e power to amend their
constitutions, except with rejjard to
the Lieutenant-Governor. Hut for
tliut limitiition, us alieadv ex-
plained, they ndf^hl break the link
alto<;ether; they ndf^ht forbid his
conununicatinj; with tlie Govi-rnor-
Gcneral ; they mi}i;ht alter the
tenure of his otlice; they mij;lit
abolish it altogether. To axoid
such possibilities was the i>ini)ose
of the exception. But inasmuch
iw they have power to amend the
Constitution, except as rej;ards the
LieiUeimnt-Governor's otliee, and
also, by the 61th section, have
power to abolish or alter his func-
tions and authorities, it is clear
that in all thin<;s, with the exce))-
fion of a con^^titnti()nal amendment
affectiufj his ofllce, they ha\e power
to deal even with the Ijieutenant-
Govcrnor.

"It is, as I havesaid, ///c r'o«.s7/-
tiition itself which is in this respect
not ameiulable. 'The amendment
of the Constitution of tiie pro-
vince.' There is no lindt as to
the amendability or repeal of Acts
existent at the date of, or which
might be passed thereafter under
the Constitution. The unity of the
executive authority woidd be im-
perilled, and the ver> object which
was coutemplated by the reserva-
tion impaired by any other view.
The province can add to the exe-
cutive powers of the Lieutenant-

(lovernor in provincial affiiirs,
when necessary, in order to reiulci'
more ellieient the administration of
those affairs ; when retpiired in
order to effectuate legislati\e pni-
visions; and in all respects, j;ir
mane to his ofhce, in which fnrtlii r
grants of ex(>eutive power may Ih'
usefidly given to that ofHcer. It is
impossible that by such action the
Dominion authority of his position
can he alTeeted; on the contrary,
the pro\ince thus magnilies his
place. There is in clause !)2 a
whole .series of what may be caliiHl
sovereign powers in the matter of
liiw making.

"Laws which are 'in rclatiim
to matters coming irithiii the niii-
mcrafcti r/axsex of subjects ' im
l;iws within the exclusive power (if
the legislature. The phrase is one
the terms of which are |)crha|)s im-
possible of enlargement. It .sei'ius
to me that a legislature which iniiv
make laws ' in relation to matter
connng within the classes of oiiii-
merated sid)jects ' may make a law
to supply any defect, and to grant
l)ower to deal with any phase of
any matter involving administrative
action, for the more perfect oik'hi-
tion of exi.sting laws, or the inoiv
complete execution of the will uf
the legislature, as defined in iiny
existing law, as well as in conntH-
tion with contemporaneous orfiiiinv
legislation."

In ilvun r. Beg, 1H!)1, Ifl
S. C. B. p. 51(5, the Dominion
Parliament pas.sed an Act tninv
ft iriiig t6 trustees all the as.^'t.s nf
the I'pper Canada Bank, it lieirig
in.solvi-nt, for the purpo.se of wimi-
ing u|), and then passed anotber
Act transferring the assets from the
trustees to the Dominion (iovtin-
ment. Strong, J., sjiid this might
be sjud to be a sjncial and nut a
yenertil law ; Init it was, for all
that, intra vires of the Douiiuion
under sub-sec. 21, sec. 91. [^Sff
Note, mite, p. 85.]

B.N.A. ACT, 8. 92 (2).— DIRECT TAXATION. 113

(2.) Diroct taxation witl
tlio raisinp^ of a
poses.*

' III D(»\v V. JJLACK.in S. C. N. B.
22 Fi'l). 1H73, lliU'hii', C.J., Allen
iiml Weldoii, JJ., I'or invalidity,
Fislier, J., for viilidity, li S. C.
X. B, (1 I'ligs.) 300; in P. C.
Mmcli 5, 1875, L. 11. 6 P. C.
272; 41 L. J. P. C. 52; 32
li, T. 274, the Judicial Com-
mitter, rcvcrsiiif^ the decision
(if the Supreme Coint of New
Bniiiswiek, held that the pro-
vincial Act, 3:5 Viet. c. 47., enal)lin<if
the umjoi'itv of the inhabitants of
the parish of St. Stephen In- local
taxation to raise a subsidy designed
t(i promote a railway which they
eoiisiiiered for the iM-neiit of the
town, and which went to the
iKiiuidary lineof the State of Maine
and tile province of New Uruns-
wiek, and wliieh had iK'cn already
aiitiiorized by provincial statute'
liasstil 10 Jnne 18G7, iH'foiv the
Diiiniiiion Act came into opemtion,
vva< a good and valid law, and was
nut ultra rircs of the i»owers gi\-en
to the Dominion Parliament under
siii)-see. 3 of sec. 91 ; and that the
Aet of the province was not ii/fra
vires on the <;round that there was
no power in the provincial legisla-
ture to pass an Act by which such
an assessment as this could 1h^ im-
posed on the parish of St. Stephen's,
for the reason that sec. 01, sub-
see. ;{, reserved to the Parlhiment
of Canada the exclusive ])ower of
ilcpslation in respect of " raising
'jnomy by any mode," Ac. But
[the Jndieial Committee conceived
lliat siili-see. li of .sec. i)l is to be
■eimeiled wilii siil)-sec. 2 of .sec. 92
y treating the fornu'r as empower-
"g the supreme legislature to raise
venue by any mode of taxation,
hether direet or imlirect, and the
tter as confining the provincial
gishitures to direct taxaticm within
e province for provincial pur-

oses.

S 2340,

tin tlio province in order to
revenue I'or provincial pur-

What was direct and indirect Tub Lamiik
taxation was (h'bated in the Lanibo C.vsr.s.
cases. These were ; —

Bank of Toronto v. Land)e ;
Merchants' Bank of Canada v.
Land)C; Canadian Bank of Com-
niorce v. Lambe, from the same
court and of the Hauu> date, and
North British Mercantile Insur-
ance Co. V. Lamlu'. Bam.say, Tes-
sier, and Baby, JJ., Dorion, C.J.,
and Cro.s.s, J., dissenting, reversed
Sup. Ct. of 12 May 1SH3, and
ainrmed Sup. Ct. of 2.3 May IHHI
(Jette, J.). The Judicial Com-
mittee heard all these ciis«'s to-
gether, and on .luly 0, 1HS7,
atlirnu'd the <lecisions appealed from
in Q. B. Quel)cc, .Ian. 2;{, 1HH5, 29
L. C. J. 7H ; in P. C. July 9, 18H7,
12 App. Cas. 575; 50 L. J. P. C.
87 ; 57 L. T. .377.

In 1882 the (.Quebec Legislature
pas.scd an Act, 15 Vict. c. 22., to
impose certain <lirect taxes on <'er-
tain conuiiercial cti:'[)orations. 'I'hat
every bank carrying on business of
banking ; every insurance com[)any
accepting risks and transacting the
business of insurance ; every in-
cori)orated company carrying on
any labour, trade, or business; and
other companies carrying on busi-
ness in the province, should annu-
ally pay the several taxes thereby
imposed on them.

The Toronto Bank's principal
place of business is at 'I'oronto.
Its capital is kept there, and the
nntjority of it belonged to re-
sidents out of the province. The
Canadian Bank was in the same
position. The Merchants' Bank was
not in 80 strong a position for
argument, as their head place of
business was in Montreal, ami the
Insurance Company is ta.xed in a
sum spccilicfl in the Quebec Act,
and not with reference t(3 its capital.
The Iwnks my the provincial
legislatui-e had no power to pass

'I'lIK I/AMIIK

Cahes.

>i'i!ii!?

Ill n.X.A. ACT, H. 92 (2).— TAXATION DIFFERENTIATKD

fliis Rt4ifiitt', Ik'Ciiiisc they Hnid tlic
tax WHS (111 indirect one.

Lnnl Ifolilionsc, dclivoring the
jiidpiiicnt of tin' C'oiiimittct', lit
wliicli wt'i>' prcNciil also Lord Mac-
iiajjlitt'ii. Sir Hai'iK's I'cacocrk, Sir
Kicliard JJa;j;j;allay, and Sir Hicliard
Couch, said :

"These appeals raise one of the
many (Unieiilt (piestions whieh have
ciuiie np for judicial decision under
those provisions of the Britisli
.Vtirth America Act, 1H07, whieli
apportion legislative powers l>e-
tween the Parliament of the Uo-
iiiinion and the legislatures of the
provinces. It is undoubtedly ii
case of great constitutional import-
ance, as the appellants* counsel
have earnestly impressed upon their
fiordships. But questions of this
class have been left for the decision
of the ordinary courts of law, who
must treat the provisions of the Act
in question by the same methods of
construction and exposition which
they a[)ply to other statutes. A
iimidK'r of incorporated companies
arc resisting payment of a tax im-
posed by the Legislature of Quebec,
and f(Mir of them are the present
appellants. It will lie convenient
(list to deal with the case of the
itaiik of Toronto, which was argued
iirst.

" In the year 1HH2 the Queliec
Legislature passed a statute en-
titiiled 'An Act to impose certain
direct taxes on certain commercial
cor])orations.' It is thereby en-
acted that every bank carrying on
the business of banking in this
jirovince; every insurance company
accepting risks and transacting the
business of insurance in this pro-
vince; every incorporated company
carrying on any labour, trade, or
business in this province ; and a
nmul)er of other specified com-
panies, shall annually pay the
several taxes thereby imposed upon
them. In the case of banks, the
tax imposed is a sum varying witli
the paid-up capital, and an addi-
tional sum for each office or place
of business.

" The ap|)ellaut bank was incor-
porated in the year IH!')[) by «„
Act of the then Parliaiiieiit of
Canada. Its principal \yh\rv of
liiisincss is at Toronto, but it 1ms
an agency at Montreal. Its ( ii[iit«|
is said to lie kept at Toronto, from
whence are transmitted the fiimls
necessary to carry on the biisiiipss
ut Montreal. The amount of it,
(•oi)ital at present belonging to \m-
sons resident in the proviiui. of
Quebec, and the amount dis|)osiil)lf
for the Montreal agency, aic ro-
si)ectively much less than the
amount belonging to other persons
and the amount disposable vW-
where,

" The bank resists payment of tlic
tax in question on the grouiul tlim
the Quebec Legislature liail nn
power to pass the statute wliicJi
imposes it. Mr. Justice J{aiiivillc,
sitting in the superior court, tooic
that view, and cUsmissed nn action
brought by the Government oflTiter,
who is the respondent. The Court
of Queen's Bench, by a majority of
three judges to two, took tlie con-
trary view, and gave the ])lniiitiil a
decree. The ca.se comes lu'ic uu
apjieal from that decree of tiie Coiiil
of Queen's Bench.

" The principal gromidsoii whiili
the superior court rested its jiidg-
meut were as follows : — Tliat tin'
tax is an indirect one; that itisimt
imposed within the limits of tlu'
jirovince ; that the parliament Iw-
exclusive power to regulate Imnii*;
that the provincial legislature can
tax only that which exists by tliiir
authority or is introduced by tiuir
permission ; and that if the powvr
to tax such banks as this exists,
they may be crushed out by it, iirni
so the power of the parliaimiit to
create them may be nullified. Tiie
grounds stated in the clecree of tlic
Queen's Bench are two, namely, that
the tax is a direct tax, and that it
is also a matter of a merely local or
private natire in the province, niul
so falls within class 16 of the mat-
ters of provincial legislation. It
has not been contended at the !«" h

din

TIATKI)

H.X.A. ACT, s. 02 (2).— MILL'S DEFINITIONS.

lir.

, wiiR iiicnr-
855 l,_v nil
rliiiiiii'iit ol

, liul it 1ms

Its ciiiiital

)roiit(), t'l'diii

(1 tlic fiiiuU

the ImsineRs

iiounl of its

iging to [ifr-

proviiu'c of

it (lis|insiil)le

ncy, iiic re-

tlmii tlio

ithor iM'i'snns

(osnlile cK'-

lyiiiPiit of tlip
ground tlwi
lire linil no
fntnti' wliich
ice Haiiiviilf,
ir (,'ourt, tooii
^d nil action
nment officer,
, Tlit< Court
11 majority of
ook tlic con-
he plaintiff a
mit's luTc oil
pof tln' Court

iiulsoii wliicli
itod its juilg-
s : — 'I'luil tlic
; that it is mil
limits of tlip
iirliaincnt lia<
Tulntc hanks
•irislatiirc I'aii
xists h_v tlifir
hici'il In tiiiir

if thi- power
IS this oxists,
out hy it, 1111(1

pnrliaiiii'iit to
ullifiod. The

(lot'ire of th(
o,n«in<'ly,thiit
and tbnt it
ncrely locnl or

province, m\
10 of the Hint-
ogislation. It
lod at the l«f

tliat till' |)r(iviiic-iul logi»<latur<> can
tax onlv that whieh exiMs on their
authority or permission. And wiien
liie a|)|H'liaiitH' counsel were pro-
cciMliiii.r til ar|{ue that the tax did
not fail within class 1(», their Lord-
«lii|)s iiitiiiiated that they would
[infer to hear (list what could he
said in fa\ imr of the opposite view.
All the other {{rounds have lieen
argued \riv fully, and their Lord-
>.lii|)s must add very ahly, at the
liiir.

"To ascertain whether or no the
tax is lawfully imposed, it will be
lii'st to follow the method of inipiiry
adopted ill other cases. First, does
it fall within the description of
taxation allowed hy class 2 of sec.
!)',!oftlie Federation Act, namely,
'Direct taxation within the pro-
vince ill order to the raising of a
revenue for pro\incial purposes'?
Secondly, if it does, are we coiii-
pelliil liy anything in sec. 01, or in
the other parts of the Act, so to
cat down the full meaning of the
words of see. 02 that they shall not
eo\cr this tax?

" First, is the tax a direct tax?
V <r the arixniiieiit of tlii- (|ues-
lioii the opinions of a great many
writers on political economy hinc
lieeii cited, and it is ipiite projier,
or rather necessary, to have aircful
regard to siieh opinions, as liasheeu
said in previous ca.S's Iwfore this
hoard, hut it must not lie forgot-
ten that the t|iiestion is a legal one,
namely, what the words mean, as
used ill this statute ; whereas the eco-
iioinists are always seeking to trace
the clYeet of taxation throughout
the couininnity, and are ajit to use
the words 'diivet,' and 'indirect,'
aceoiding as they tiiid that the luir-
den of u tax nlild, Mof,. oi- loss

with

This

(

his

the pr s»n who ihst pays it.
'" '>n is illustrated "very
the quotntior from a
' and clear tl er, the
Ir. Fawceft. who, after giving
i"'s of inirt and indirect
toatioii, mi s remarks to the
effect that a tax niav lie ma«le
direct or imlirect hy the position of

the taxjinyers or hy private liar- T"" ''Ami'I".
gains ahont its payment. Donht- * *''^'''
less, such remarks lia\c their \alue
in an economical discussion. I'ro-
hahly it is true of cNcry indirect
tax that some persons are hoth the
first and the final payers of it ; and
(if e\cry dii'cet tax that it atfects
persons other than the first payers;
and the excidleiice of an econo-
mist's definition will he measured
liy the accuracy with which it con-
leniplat*\s and finhraces every iind-
(h'lit of the thing detim^d. Hut
that very excelh'ii"(( impairs its
\aliie for the purposes of the law-
yei'. The legislature cannot possi-
bly ha\e meant to give a power of
taxation valid or iinalid according
to its actual lesults in particular
cases. It must lia\e contemplated
some tangible di\ iding line refer-
able to and asceitainaldc by the
general tendencies of the tax and
the common understanding of men
as to those tendencies.

"After some consideration, Mr.
Kerr I counsel for appeUant | chose
the definition of John Stuart Mill
as the one he would prefer toabiile
by. That (h*finition is as follows; —

" ' Taxes are either dhrtf or
huHrect. A liircrt tfi.v is one
which is (h'luanded from the very
|)erso!i9 who, it is intcndvd or tU-
sired, should pay it. Indircrt
ta.ren are thos(! which are demand-
ed from one person in the expecta-
tion and intention that he .shall
iiKh'mnify himsidf at the expen.se
of another : such are the excise or
customs. [Italics by their Lonl-
.ships.]

'"The producer or importer of
a commodity is called upon to pay
a tax on it, not with the intention
to levy a peculiar contribution npon
him, but to tax through him the
consumers of the commodity, frfim
whom it is snjiposed that he will
recover the amount by mejins of an
advance in price.' — B. 5, ch. 3.

" It is .saul that Mill adds a term —
that to be strictly direct a tax nin.st
bi- general; and this condition was
1 x'h pressed at the bar. Their

H 2

ll;

TilK liAMnB

Cases.

m
mi'

I
i

1
1

116 B.N.A. ACT, s. 92 (2).— INCOME TAX " DIRECT."

Lordships liavc not thought it
necessjiry to oxumiup Mill's works
for the purpose of asfertjuninfj pre-
cisely what he does say on thi.s
point ; nor wo)dd they presume to
say whether for eeononiical ]nu'-
pose.s sneh a condition is sound or
unsound ; hut they have no hesi-
tation in rejectinfi; it for le<;al ptir-
|)oses. It would deny the charac-
ter of a direct tax to the income-
tax of this country, which is idways
spoken of as sucii, and is generally
looked upon as a direct tax of the
most ohvious kind; and it would
run counter to the connuon under-
standing of men on this subject,
which is one main clue to the
meaning of the legislature.

" Their Lordships, then, take
Mill's definition above quoted as a
fair basis for testing the character
of the tax in ipiestion, n )t only he-
canst^ it is chosen by the appellants'
counsel, nor only because it is that
of an eminent writer, nor with the
intention that it should be con-
sidered a binding h>gal di^linition,
but because it .seems to them to em-
body with sidlicient accuracy for
this purpose an understanding of
the most obvious indicia of direct
and indirect taxation, which is a
coii'mon understanding, and is
likely to have been present to the
minds of tiiose who passed the
Fedeii'^ion Act.

"Now whether the probabilities
of the ease or the fiame of the
Quebec Act are consideivd, it ap-
jKiurs to tlu'ir Lord.ships that the
Quebec Legislature must lia\c in-
tended and desired that the very
corporations from whom the tax is
demanded should pay and fuially
hear it. It is carefully designed
for that purpose. It is not like a
custom's duty, which enters at once
into the price of the taxed com-
mo<lity. There the tax i i demand-
ed of the im|K)rter, while nobody
expects or intends that lie shall
tinally bear it. All scientific econo-
mists teach that it is paid, and
scientific financiers intend that it
.shall be paid, by tlu; consumer ;

and even those who do not aetejit
the conclusions of the econt mists
maintain that it is paid, and iitciid
it to be paid, by the foreign (iio.
ducer. Nobody thinks that it is,
or intends that it shall be, paid liy
(he im|)orter from whom it is dc-
mande<l. Bnt the tax now in
(piestion is demanded <lii'ectly of
(he l)ank, apparently for the reason
able pur[)ose of getting contriliii-
tions for provincial purpo.ses I'loiu
those who are making profits In-
provincial business. It is not a tiix
on any commodity which the bank
deals in and can sell at an enhaiiml
price to its customers. It is not a
tax on its j)rofits, nor on its scvciii!
transjictions. It is a direct Innii)
sum, to be a.sse.ssed by siniph' refer-
ence to its [)aid-up capital and its
places of business. It may possihh
liappen that in the intricacies oi'
mercantile dealings the bank niiiy
find a way to recoup itself out ni
the pockets of its Quebec ciisto-
mers. But the way uiu.st be an
obscure and circuitous nw, tiic
amonnt of recoupment cannot henr
any direct rehition to the amonnt
of tax i)aid, and if the bank does
manage it, the result will not ini-
IH'obably disapi)oint the intention
and (h'sire of the Quebec Govern-
ment. For these reasons tlieir
Lordships hf)ld the tax to be diivct
taxation within class 2 of sec. 92 of
the Federation Act.

" 'I'liere is nothing in the pre-
vious decisions on the question (jf
direct taxation which is adverse to
this view. Inthee.N, ofthet^necn
Insurance Companv, 3 App. t'as.
1.090, the disputed Uix was im-
posed under cover of a license to
be taken out by insurers. Hut
nothing was to be |mid directly m
the lic«'n.se, nor was any i)enall_v
impos<'d upon failure to take one.
The price of the license was to U'
a percentage on the preminnis n-
ceiv»'d for insin'ances, each of wliici!
was to be stamped accordinftlv-
Such a tax would fall within imy
definition of indirect ta.vatiiiii, nmi
the form given to it was apparently

lECT."

10 not nctoirt
le oeondiiists
li, niul i'ltfiid

foroigii \,vt-
ks thiit it is,
1 1)0, piiiil liy
loui it is ili'-
tax now ill
'd directly uf
or the ri'iison-
ting contiiliu-
jurposes i'roiu

11 <r profits liy
It is not ii tax

hifli the Imiili
\t iin I'nlmiK'wl
•s. It is not a
L- on its Severn!
a direct lump
)v siini)le retci-
eiipital and it*
It may possibly
> intricacies nf

the bank may
ip itself out of

Qnebcc eustn-
,y must lie an
itouti .)ne, tlic
ent onnnot liear

to the anuimit

the bank tU's

lit will not im-

t the iiitciitidii

Quebec Govern-

reasons tlifir

tax to be (liivrt
IS 2 ofsec. O'iiif

ing in the pre-
the qnestiou "f
i;h is adverse to
of the (iuei'ii
y, 3 App. CV.
•il Uxx wiis im-
of a license tn
insuivis. But
paid directly en
vas any penalty
re to take one.
icense was tu 1"'
le preniiuius iv-
;'s, each of wliii'l'
icd aoconliiijlly.
1 fall within any
■ct taxation, ftH'l
it was appiu't'nily

B.N.A. ACT, s. 92 (2).— TAXATION & DOMICILE. 117

u .

with the view of bringing it under
class 9 of sec. 92, which relates to
licenses. In Reed's case, 10 App.
Cas. in, the tax was a stamp duty
on exhibits produced in courts of
law, which in a great many, per-
haps most, instances would eer--
taiiily not he paid by the per-
sdh first chargeable with it. In
S.'vei:>'s case, 2 S. C. E. p. 7C\
tile tax in (piestion was one foi
lieenses which, by a hiw of the
legislature of Ontario, were re-
(piireil to he taken for dealing in
lii|nors. The Supreme Cotu't held
the law to be ultra vires, mainly
uii the grounds that such licenses
dill not fall within ehiss 9 of sec.
!):2, and that they were in comliet
with the powi'rs of parliament
under chiss 2 of see. 91. It is true
that all the judges expressed
opinions that the tax, being a
license duty, was not a direct t«x.
Their reasons do not clearly appear,
Imt, as the tax now in (jiier-tion is
nut either in substance or in form
I' lieensi' duty, further examination
of that point is unnecessary.

" The next question is, whether
the tax is taxation within the pro-
vince. It is urged that the bank
is ,' Toronto corporation, having
its doinieile there, and having its
capital phiced there; that the tax
is on the capital of the bank ;
that it must therefore fall on a jier-
soii or persons, or on property, not
within (iueliec. The answer to
this argument is that (dass 2 of
see. 92 does not reipiire that the
persons to he taxed by (iuebec are
to lie domiciled or even resident in
(^ndiec. Any person found within
the province "niiiv legally be taxed
there if taxed directly. 'This bank
is I'oniul to he carryii'ig on business
there, ain' on that" ground alone it
IS taxed. There is no attempt to
tnx the capital of the Imnk, any
niore ihiiii its profits. 'J'he Imnk
ilstdf is directly onU'ivd to pay a
sum of money ; hut the legislature
has not chosen to tax every bank,
small or large, alike, nor to leave
the amount of tax to he nscer'nined

by variable accounts or any uncer- The Lambr
tain standard. It has adopted its Casks.
own measure, either of that which
it is just the banks .shotdd pay, or
of that which they have means to
pay, and these things it ascertains
by reference to facts which can lie
verified without doubt or delay.
The banks are to pay so much, not
according to their capit4d, but ac-
cording to their paid-up capital,
and so much on their places of
busine.ss. Whether this metho'.I of
assessing a tax is sound or unsound,
wi.se or unwise, is a point on which
their Lord.ships have no opinion,
and are not called on to form one,
for as it does not carry the taxation
out of the province, it is for the
legislature and not for courts of
hiw to judge of its expediency.

"Then is there anything in
sec. 91 which operates to restrict
the meaning above ascribed to
sec. 92 ? Class ,'J certainly is in
literal conflict with it. It is im-
possible to give exclusively to the
Dominion the whole subject of
niising money by any mode of
taxation, and at the same time to
give to the provincial legislatures,
exclu,si\ » ly or at all, the power of
tlircct taxation for provincial or
any other purposes. This very
conflict between the two sections
was noticed by way of illustration
in the case of Parsons, 9 App.
Cas. p. 108. Their Lordships
there .said : — ' So " the raising of
money by aif mode or system of
taxation " is t numerated among the
<dasses of subjects in .sec. 91 ; but,
though the description is suffici-
ently large and general to include
"direct taxation within the pro-
vince, in order to the raising of a
revenue feu- provincial purposes,"
assigned to tlie provincial legi.sla-
lures by sec. 92, it obviously couhl
not hi.ve lu'en intended that, in this
instance also, the general power
should override the particular one.'
Their Lordships adhere to that
view, and hold that, as regards
direct taxation within the province
to raise revenue for provincial pur-

'f II'

TrP. TiAHRK

Cases.

Mak>hai,i , I '..I

118 B.N.A. ACT, s. 92 (2).— POWER UNWISELY USED.

poses, that subject i'alls wholly
within tho jurisdiction of the pro-
vincial le<jislutnres.

" It has been earnestly contended
that tht taxation of banks would
unduly cut down the poweis of the
parliament in relation to matters
falliuff within class 2, namely, the
regulation of trade and connnerce ;
and witiiin class 15, namely, bank-
iiiij;, mid the incorporation of banks.
'I'jieir Lordships think that this
cijutention gives far too witle an
I'xtent to the classes in (piestion.
They cannot see how the powei' of
making bank-i cunti'ibute to the
j)ublic oiijeels of the provinces
where they carry on business can
interfere at all with the power of
making hiws on the subject of
banking, or with the power of in-
corporating banks. The woids
' regulation of tra<le and connnerce '
are indeed very wide, and in
Sexern's case it was the view of
the Supreme Court that they oper-
ated to invalidate the license duty
which was there in (piestion. IJut
since that ca.se was (hrided the
question has been more coinpletely
sifted before the Committee in
I'arsons' case, 7 App. Cas. 90, and
it was found absolutely necessarv
that the literal meaning of the
words sliuuld bi' restricted, ill order
t<» afford .'cojie for powers which
are gi\i'U e.xclusively to the jjro-
viiK'ial legislatures. 1 1 was there
thrown out that the power of regu-
lation gixeii to the parliament
meant some general or inler-pro-
vincial regulations. No further
attempt to dcline the subject need
now b<' made, iK'cause their Lord-
.shiiis are clear that if they were to
hold that this jiower of regnliilion
prohibited any provincial taxation
on the per.sous or things regulated,
so far from vest riding the expres-
sions, as was found necessary in
l'ar.s<»iis' case, they wo;ild Im- stntin-
iiig llieiii to their widest conceivaide
extent.

"Then it is suggested thai the
legislature may lay on taxes so
lieavv as to crufili a Ixiuk out of

existence, and so to nullify tlir
j)Ower of parliament to erect baiik.s.
But their Lord.ships cannot con-
ceive that when the Imperial I'nr-
liament conferred wide powers ol
local .'elf-government on greni
countries such as C^ueU'c, it in-
tended to limit them on the specu-
lation that they would be used in
an injurious manner. I'eopU' who
are trusted with the great power ef
making hiws for property and civil
rights mav well Ix! trusted to lew
taxes. There are obvious reasons
for confining their power to direct
taxes and licenses, because the
power of indirect tJixation would
be felt all over the Dominion. But
whatexer i)ower falls within the
legitimate meaning of cla.sses 2 and
9, is, in their Lordships' judgment,
what tliti Imperial Parliament in-
tended to give ; and to phice ii
limit on it l)ecau.se the jwwer may
W' used uuwi.sely, us all powers
may, would 1k' an error, and would
lead to insnpemble dilliculties in tho
construction of the Fedenition Act.
*' 'I'lieir Lordships have Iteeii
invited to take a very wide range
on this part of the ease, and to
apply to the construction of the
Federation Act the principles laid
ilown for the United States hy
Chief Justice Marshall. [Lougli-
borongh r. Blake, IH S. C. U.
S. (5 Wlieat.; 317.] Every one
would gladly accept tlu' guid-
ance of that gri'at judge in ii
jiarallel case. But he wius dealin;;
with the Constitution of the United
States. Under that Constitution,
MS their Lord.slii|)s understand, each
State may make laws for it.self, iin-
controUeil Jiy the Feilend porter,
and subject only to the limits
placed by l.iw on the range ol
sulijects within its jurisdiction. In
such a Constitution Chief Jnstiee
Marshall found one of those limits
at the [xiint at which the action
of the State legislature ciinie into
conflict with the power vested in
Congress. The ap^M'llant invokes
that principle to support the cou-
elusion tbul the Federation Act

B.N, A: ACT, s. 92 (2),— IMPOT DES PATENTES. 119

imist Ix" so construed lus to ullow no
power to the provinciiil legislatures
under see. 92, which may by possi-
hilitv, and it' exercised in .some ex-
triiviigant way, interfere with the
')ji'tt3 of the Dominion in exer-
cisin},' their powers under sec. 91.
It is ([iiite impossible to argue from
the one ease to tlie other. Their
Lordships have to construct the ex-
press words of an Act of Parliu-
uicut wliieh makes an elaborate
(iistril)ution of the wiiole field of
legishitive authority between two
legislative bodies, and at tlu' same
time provides for the federated pro-
vinces a cirefully bahmced consti-
tution, under whicii no one of tiie
parts I'an pass laws for itself except
umler the control of the whole act-
ing through the CTOvernor-GenerHJ.
And the question they have to
answer is whether the one body or
the Other has power to make a
given law. If they find that on
the due construction of the Act n
legislative power falls within sec. 92,
it would be fpiite wrong of them to
(liny its existence because by .sonu^
piissihiliiy it may be abused, or uuiy
limit tlie range whicdi otherwise
woidd Ih' open to the Dcminion
I'arliament.

"It only remains to refer to
.some of the groimds taken by the
learned judges of the lower coiii't-S
wiiii'li have been strongly objecte*!
to !it tilt' Imr. Great importance
has lu'eii attached to French
authorities who lay down that the
imput ties patentes, which is a tax
on trades, and which may possibly
have alTonh'd hints for the Queltec
law, is ii direct t4ix. And it has
been suggested that the provincial
legislatures poss<'ss powers of legis-
lation cither iidierent in them, or
dating from a lime anterior to the
i Federation Act an<lnot t^tken away
by tiiat Act. TiieirLordship.s have
jnot thought it necessarv to call on
the respondents' counsel, and there-
fore pcssihly have not iieard all
[that may 1),. said in support of
iHich views. But the judgments
fbfh.w are so carefidly reasoned,

and the cit^ition and di.scu.ssion of ' «« I-amiie
them here has lieen so ftill and '^**'^-
elaborate, that their Lordships feel
justified in expressing their present
dissent on these points. They can-
not think that the French authoii-
ties are useful for an ^thing but
illustration. And thfi^ adhere to
the view which lia.-s always been
taken by this Connnittee, that the
Federation Act exhausts the whole
range of legislative power, and that
whatever is not thereby given to
the provinv'") legislatures rests with
the parlL n it.

"Tht "lit is that, though not
wholly to. the .sime reasons, their
Lordships agree with the Ciunt of
Queen's Bench. And they will
humbly advise Her Majesty to
affirm their decree, and to dismiss
the appeal of the Bank of Toronto.

"The other three cases possess
no points of distinction in favour
of the appellants. The eases

have been treated as subsUintially
identical in the courts below, and
their Lordships will take the sanu-
course with ri'spect to all of them."

In Att.-Gen. kou QiJEHKc *•. Att.-G«s. fok

Bked, in Quebec Q. B. 24 Nov.
1882 [Monk, Ramsay, Tessicr, and
Cross, J J,, Dorion, C.J., dis.scutiug,
rever.sed Sup. C, Mackay, J.] ; in S.
C. June 18, 1883, 8 S. C. H. 40S
[Uitcliie, ('.J., Fournier, Henry,
& Gwynne, JJ., Strong and Tasch-
ereau, JJ., dissenting, reversed
Q. B.] ; in P.O. Nov. 20, 1881, 10
App. Cas. Ill; 54 ^. J. P. C. 12;
52 L. T. 393. The question 'v .s.
Can a charge of ten cents inipo >d
by an Act of the QucIk'c Legisla-
ture, 43 Sc 44 Vict. c. 9., tipon ex-
hibits used in the courts of justice
of the province, be justified inuier
this sul»-sec 2 ? Earl ScdlKU-ue,
L.C., adojited what Mill on Politi-
cal Economy sjiid — that a direct tax
is " one which is demanded from
the very ixn'sons who it is inleniled
or desired should \my it." And
then the converse defiuition of
indirect taxes is, '• Thost- which

QUKHKC V.

Rkki).

Att.-Oen. fob

QCEBKC t'.

Refj).

!i^

120

B.N.A. AC'J', s. 92 (2).— TEST OF TAXA TJON.

arc (Icinandctl from one person
ill the «'.\|n'ctation and intention
tliat he shall indemnity liimself at
the expense of another." Can it
lie said " A stamp duty in tlie
nature of a fee payalile upon a step
of u proeeedinjj; in the administra-
tion of justiee is one whieh is de-
maiidetl from the very persons who
it is intended or desiivd should pay
it ? It must lie ]iaid in the course
of thele^al proceeding, whether that
is of a friendly or of a litigious na-
ture, . . and from the very nature
of sueli proceedings, until they ter-
minate, as a rule, and S|)eaking
generally, the ultimate incidence of
of such a payment cannot be ascer-
tained. . . In most proceedings
of a contentious character the person
wild pays it is a litigant expecting
(>i' hoping for success in the suit ;
Hid, whether he or his adversary
will have t<i pay it in tlu' end, must
(h-pend on tlu^ ultimate termination
of the controversy between them.
'Ihe legislature, in imposing the
tax, cannot have in contemplation,
one way oi- the other, the idtininte
determination of the suit, or the
linal incidence of the burden,
whetlier upon the person who had
to pay it at the moment when it was
exigilile, or upon anyone else. .
The cpu'stion whether it is a
diu'ct or an indirect tax cannot de-
pend upon tliose special events,
which may vary in jiarticular
eases; but the best general rule is
to look to tlie time of payment ; and
if at the time the ultimate inci-
dence is uncertain, then, it cannot,
in this view, be called direct taxa-
tion within the meuning of this
sub-section " [Sec for second part
of this judgment .sub-s<'c. 14, set-.
fl'J, and for the latter |)nrt .sec. 05.]
The New Hruiiswick Act, 47
Vict. c. 1!)., respecting law stamp.s,
made provision for tlie collection
by means of stamps of fees in
legal proceedings in the Supreme
Court. These fees, it was enacted,
when collected were to be paid to
the Jtecciver-Gencral of the pro-
vince, and lie under the control

and umnngenient of the oxeeiilivo
government of the province. 'l\.
Minister of Justice (A. CamplnH),
2t} March 1HH5, recomnu'iided tlia;
the attention of the Lieutenant-
Governor be called to the decision of
Att.-Gen. of Quebec v. IJeed, and
in the meantime the consideration
of the Act be deferred. The niin.
ister added their Lord.ships did m\
express any opinion as to wlictlur
or not a provincial legislature ciin
authorize the collection of fees in
respect of legal jiroceedings in
courts of justice not for the gem ru|
purfwses of the province, but in
aid of a siieeial fund or of tlie
administration of justice in the
lirovince. The matter is, however,
of so much importance to the pru-
vinee, and the power to iiiipuM'
fees in this and other ca.ses lia.>'
iK'cn so generally exercised by tlu
provincial legislatures, that it is dc
sirable to give the legislature nl
New Brunswick every opporliiiiilv
to amend the Act so that it may, il
that is po.ssible, Ik* brought within
the legislative authority of tliatle^'is-
hiture. Prov. Leg., 18H0, p. 571.

In Att.-Oen. foij Qitkhkc r. Tut
Queen Ixsuk.vnck Co., in Sup. C.
M<m., April 12, 1877, 21 L.C.J,
77 [Torranc*-, J.] ;alBrmed by (Que-
bec Q. B. 14 Dee. 1877 [l')ori(ni,
C.J., Ta.schereau, Monk, 'I'e.-^sier,
JJ., Ramsav, tF., dissenting], '12
L. C. J. 307; in P. C. Jiilv
5, 1878, 3 App. Cas. 10(10, .'iH
L. T. 897. Sir Geo. Jcsxl.
M.K., delivered judgment 'I'ln
»|uestion for decision was wlulliii
the clauses of the Quebec Ael,
35) Vict, c 7 , which imposed a tiix
upon certain policies of assuniiiee,
and certain receipts or renewiils,
were not aiithoiized by the B. N
A. Act, 1807, under sec. 92 Tlu
powers of sub-s«'cs. 2 and 9 "mm
co-exist with the powers conftTnil
on the legislature of the Doinitiion
by the 91st section. Assuniio;;
that to 1m' so, the question In
whether what has Imhmi done i^^
authorised by tbosi' powers." Hi«

TION.

B.N. A. ACT, s. 92 (2).— CATEGORY OF TAXATION. 121

' tho oxcciiiivo
H'oviiUM". The
(A. CainplH'll),
jiiiniciKlcd th.'i;
10 Lioiitt'iiaiit-
> tluMlceisioiKif
f V. Hi'cd, iind
p L'onsiik'nitidii
ml. The niiii-
rdships dill ikiI

lis to wlictlicr
Ipfji.sliiturf cm
tioii of IVcs ill
[n-ofccdiii^s ill

for tlH'pcncnil
■oviiici', Imt ill
uiid or of till
JHstit'c in till'
tor is, however,

IICC to tllC pi'D-

wcr to iiiipoM'
tlit'i' i'Mscs lia.'>
xerci.st'd liy tin
vs, tliiit it is tie-
l<'};isliitiii'e (i[
■y opportiiiiilv
i» that it may, il
liroujjht witliiii
rityof thatiejfis-
, 1880,1). 571.

tQuKHKCcTlIF.

Co., ill Hup. C.
877, 21 L. ('. .1.
iilfiriiU'd by (^lu ■

1877 [Doridii,
Monk, Tc.xsier,
dissenting], 22
ill P. C. Julv

Cas. lono, .Vh

V Geo. Je.'isel,
iidgiiient Till
on was whetliiT
If Queht'c Aet.
'h imposed a tiix
es of iissiiraiice,
Its or renewals,
I'd by the H. N.
.•r see. 02 Tiie
t, 2 and J) " iiinv
lowers font'crreii
if tlie Doiuiiiien
on. Assumin;;
(lie (lue.stioii is
s Imhmi (lone is
e powi'is." Hi"

hord.ship (p. 1100), after finding it
(lid not come under .sub-see. 9, see. 92
[ifpthat M-etion, j). 127],eonliiiued:
The siiiflle point to be ileeided
on this [sub-sec. 2] is whether u
Stump Act— an Act imposinj,' a,
.xtaiup ou policies, renewals, and
receipts, with provisions for av()id-
iiif? the [Milicy, renewal, or receipt,
iiMi court of law, if the stanip is
not atli.Ncd,— is or is not direct
tJixatioii? . . ■ Wimt is tiie
iiieaniu"; of the words as words of
the article? We may consich'r tlieir
nieiiuiuix as words used in the .sense
(if political ccoiuiniy, or as words
used ill jurisprudence in the courts
(if law. Taken in either way, there
is a muUitude of authorities to
slidw that such a stamj) imposed
liy the lefjislatiire is not direct
tii.xatiou. TIk' political economists
are all agreed. There is not ft
sinjrle instance produced on the
other side The number of in-
'^taiices cited by Taschereaii, J., ill
his eliitidrate judf^meiit it is not
neeessmy here to do more than
refer to." "As regards judicial in-
terpretation, there arc some English
ilecisidiis and sevcnil American de-
cisidiis on tile subject, many of
wliieli are referred to in the judg-
ment of Tasehcreaii, J. There,
again, they are all one way. They
all treat .stamps either as indirei't
ta.xation, or as not being ilirect
taxation." " Lastly, as regards the
piipulnr use of the v ords, two
cyeldimMlias at least have been pro-
duced, sluiwiiig that the popular
use (if ilic words is entirely the
same in this ropeet as the technical
Use (if the words. And here, again,
there is ail utter (h'licieiicy on the
Itarl (if the appellant in producing
a_ single instance to the contrary.
That iieing so, it is not necessary io
consider the seicntilic detinitioii of
direct or indirect ta.xat ion. All that
it is neeessiry for them to siiy is,
that (inding 'these words used in
an Act of Parlianieiit, and finding
that all the then known definitions,
whether technical or general, would
exclude this kind of taxation from

I ■ I . f (|UEEN In6IJI>

legLslature of *^^,^ ^^

the entegory of direct taxation, Att.-Gbn. ror.

they must consider it was not the 'i"™"*^ ''•

intention of the

KiKjltind to include it in the; terms

' direct taxation,' and therefore

that thn imposition of this st4imp

duty is not warranted by the terms

of the 2nd sub-sec ion of section 92

of the ])( •union Act. That being

so, the appeal fails."

The cases cited by Ta.scliereau
were LoiighlMirongh v. Blake, 1820,
18 S. C. v. S. (5 Wheat.) ;{17; Vea-
zie Bank v. Fenno, 18(51), 75 S. C.
U. S. (8 Wall) 5;«; raeifie In-
surance Co, V. Soide, 18G8, 74
S. C. U. S. (7 W^ill) 433 ; and 2
Mill's r. E., B. 5, <di. 3 ; 3 Smith's
W. of N. (lOth ed.) 315; Mac
Donnell's P. E. 31(5; McCiilloch,
pp. 1, 242 ; and Ililliard, par. (30.

Sir Montague Smith .said in C'itizens' In-

ClTI/KX.s' IXSIKAN-CK Co. V. P.VK- "«*'■«« t'"- f-

I'.IBSONS.

sox.s, Nov. 2G, 1881, / App. Cas. p.
108; 51 L. .). P. C. 11; 45 L. T.
721 ; in the court below 4 S. C. B.
215, that " The raising of money by
any mode or .system of taxation is
I'liumeratcd among the classes of
see. 91 [sub-sec. 3], but though
the descripti(Ui is siifiicieiitly largo
and general to include ' direct taxa-
tion within the province, in orih-r
to the raisii'g of a revem.e for pro-
vincial jiiirpo.ses ' assigned to the
provincial legislatures by sec. 1)2,
it obvion.sly could not have been
intended that the general power
shouhl override the |mrticular one."
[<SVe siib-s((c. 13, 7«»Y.]

In Lynch /•. Canada N. W. bvNcn c
Land Co., .hnie 22, 1891, jg <'*''»"^ ^' ^
S. C. \\. 214, Bitchie, C.J., said:
'!"..(' B. N. A. Act having given
the power of legislation over direct
taxation within the provincies in
order to the raising of a reveiiin'
for provincial purposes, and o\er
inuniei[)iil institutions in the pro-
vinces, exclusivt-ly to the prtivincial
legishitures, the.se bodies were not
restricted to the niaiiiier or extent
to which those powers should
be exercised. And it was not
ultra firis of the Manitoba Legis-

L.tND C-'O.

LVNCII V.

Canada N. AV.
Laud Co.

llCt.L V. WiNO
CUONO.

Chinese Cank.

122

H.N.A. ACT, s. 92 (2).— <.'EUTIOUARI APPEAL.

latiire tu eiifurce uii additional 10
per cent, from a defaulting tax-
payer for not paying his taxes by
a certain date. [See sub-sec. 19,
sec. 91.]

When funds belonging to a cor-
poration in Ontario are so situated
or invested in the province of Que-
bec, the legislature of Quebec may
impose direct taxes upon them
for provincial purposes, as autho-
rized by sec. 92, sub-sec. 2, or may
impose conditions on the transfer
<u' reaKzation of such funds. Dobie
r. Temporalities Boaid, in the Ct.
Q. B., Quebec, June 19, IHHO, 2G
L. C. J. 170; in P. C. Jan. 21,
1882, 7 App. Cas. 136; 51 L. J. P.
C. 2G; 46 L. T. 1 [spe sub-sec. 13].

The provincial legislatures will
act ultj'fi vires by passing a law
which discriminntes in the imposi
tion of direct taxation for the pm-
pose of provincial revenue.

In Bull v. Wing Chong, alias
Chu Lay, Bull, in his petition to
the P. C, set out the following facts
in asking for sjH^cial lea\ e to appeal.
On the 18th Feb. 1884, the legis-
lature of the province of British
C'ohnnbia pa.ssed the Act regulating
I lie Chinese population of British
Columbia, calU'd the Chine«^ Regu-
lation Act. It was not disidlowed
by the Governor-General of Canada
in Council, and came into force 18th
Feb. 1885. On the 4th June,
Edwin Johnson, police magistrate
of the city of Victoria, on the infor-
mation of the Chinese collector,
convicted Wing Chong, alias Chu
Lay, the respondent, for that he on
the 21st May 1885, being a
Chinese, was found not having
in his pcssession a license issuetl
under the provisions of the Act of

1884, and lined Wing Chong,
alias Chu Lay, ?<20. On 3 July

1885, at the instance of the respon-
dent, a writ of cfr^/orari was issued
out of the Supreme Court of British
Columbia, conunaiuling Edwin
Johnson to retni-n into said Su-
preme Court of British Columbia
all the deposition.s, &c., taken in

the case. That on the ret inn of
this certiorari, Crease, J., oue of
the judges of the Supreme Court of
British Columbia, quashetl the con-
vietion on the ground, inter alia,
that the said "Chine.si- Ileguliitioii
Act, 1884, was ultra rirci tln'
legislative assembly of British ('d.
lumbia." The order qua.Hhiiig t|i,.
said conviction was not served until
13 Jan. 1886. The petitioner is
advised there is no appeal from
tii'> decision of Crea.se, J., to tlie
Supreme Court of British Columbia
sitting as a full court ; that al-
though the amount of the fine im-
posed by the conviction is sniiiil,
the question in issue is of ^rciit
l)iiblic imporlauee, involving as it
does the power of the provincin!
legislature under the B. N. A.
Act to discriminate in the imposi-
tion of direct taxation for purpose.^
of revenue and police; the ])io-
ceedings against the respondent,
and this api)eal, having been under-
taken by the petitioner by the
direction of the Government of the
province of Briti.sh Columbia ; and
the petitioner asked for t^[)Qm\
leave to ap[)eal.

By Order in Council dated
3rd April 1886, and on the
report of the Judicial Connnittee
tlated 20 March 1886, who,
having heard couiLsel for th" |k-
titioner, reported their opinion that
leave ought to be granteil to W. K.
Bull to enter into and prosecute his
appeal from the order of Crea.xe, J.,
of 21 Aug. 1885, upon depositing
in the Privy Council the siiin of
.?300 as security for costs, order
accordingly. On 13 Aug. ISHO,
the Regi.strar of the Privy Council
writes that as no steps were taken
for the prosecution of this appeal,
ami as on 22 July that (h'part-
nu'nt was informe<l that the Attor-
ney-General for British Coluniliiii
does not intend to [iroceed with
the apjieal, on 3 Aug. 1880 the
order giving leave to aj)peal was
rescinded. Prov. Leg., 1887, pp.
258-267. This Act was passed
under sec, 95. which see.

H.N.A. ACT, s. 5)2 (.•<)-(«).— MINES AND MINERALS. 123

(3.) The borrowing of money on the sole credit of
the province.

(k) The establishment and tenure of provincial offices
and the appointment and payment of pro-
vincial officers/

Tliis siilt-scc'tion was (liNfiisscd

lll(iOVEK.NOn-GKNE».\L DOMINION

I, TheFoukI'uovinc'ks, in I'rivv
Council 12 Nov. 1HH5, a question
wiiii'li was spi'fiiilly referred as to
ihc validity ol' the Doniiiiiou Licjiior
U'vm' Aft, 1HH3-4. [See siih-secs.
-iiiiiilK.] It wasargiu'd in that ease
iliiit il' the legislation was decided to

Ite itrovincial lejj;islati()n, with wliieli C'fVKRjJOR-
Ihe provinees oidy have tlie ritrlit '*"•"=''*'■ J?"-
to deal, tiien the oliieers might lie y^yji p^o-
said to be provineial ; but it' it is a vinces,
matter within the Dominion Parlin-
UK'nl, and they appoint oHieials lor
earrying it out, those oflleials are
Dominion ollieials just as mueh as
tlie Customs ollieials are who act in
each proviuee.

(o.) The management and sale of the public lands
belonging to the province, and of the timber
and Avood thereon.^

'Ill St. Catiiehine's Milling
AM) LiMUKU Co. c. The Queen,
DiT. 12, 188H, 11 App. Cas. -IG ;
:» L. J. V. C. 54 ; GO L. T. 11)7 ;
;iml ill court below 13 S. C. 11. 577,
it WHS held that the Indian re-
>envil liuids belong to the Crown for
llRk'uetit of the jiroviiu-es in which
ilieyiire situate [see ante, p. 94].
.SVf also Att.-Gen. of Ontario r.
Jleiwr, 18 .Julv 1HS3, 8 App. Cas.
;i)7; iJ2L. J. P. C. 84; 49 L. T.
312; 5 S, C. 1{. 538 [sec fully
ir. 10!) J.

Ami ill Attounev-Genkual of
Biiirisu CoLUMUiA V, Atxobney-

Gi;nei{al ok Canada, April 3, St. Cathe-

1889, 14 App. Ca,s. 295; 58 L. J. «-£„^— "

r. C. 88 ; GO L. 'J". 712, and in Co. v. The

court below 14 S. C. 11. 315, it was Qc"""-

held that "public lauds" in this

section included mines and mim-rals

upon such lands, although the lands

had been granted for a railway,

Columbian Railway Acts, 43 Vict.

c. II. and 47 Viet. e. 14. No

transfer of the prerogative right

theie took i»lace, the grant not

l)eiiig to the Dominion l)ut to the

Canadian Pacific Railway. [Hee

sec. 109 for full report.]

(G.) Tlic establishment, maintenance, and manage-
ment of public and reformatory prisons in
and for the province.'

' By llio Dominion TemiK-rancc

Ad. 1S7H, a punishment of im-

liriMimiicnt was ordered on all who

i!>oM li(|ii()r after third offence

I vilmvwY in the Dominion the Act

Iwij Ikvu mloptctl by the uuiuivi-

palitie.s, aud the Judicial Committee
field the Act valiil. Sec Russell c.
The Queen, 1882, 7 App. Cas.
829; 51 L. .1. P. C. 77; 4G L. T.
889 [post, sub-sec. 9J.

-fe

124 B.N.A. ACT, s. 'Jl! (7), (H).— CIIAiaTIES, WHAT?

DoniE V. TiiK,
t11mpora1.itik8
Board.

Ru.ssEi.1. 1'. The

QCEEN.

Rk(i. r.

Wason.

(7.) Tlio ostahlishmont, maintenance, and maiiatfc.
mcnt of hospitals, asylums, cliarities, and
eleemosynary institutions in and Tor the pro.
vince, other than marine hospitals.*

' In DouiK r. Tiik Tkmi'ouam-
TiKs UoAuu, Jim. 121, 1H82, 7 App.
C'as. i;W; 51 L. J. P. C. 20; 10
L. T. 1 ; ami in tin- i-onrt lu'low
2() L. C. J. 170 [see full report,
suli-soi'. 13], tlu' Jiulic'ial Coni-
niiltrc lu'ld that tlu- Qiicl)tr Act, .'W
Vict. V. {51., wliicli was an attempt
to rc[ioal an Act (tf tlic province
ol' Canada, 22 Vict. G(i., cieatin<; a
trust corporation of tlic funds of
the Presbyterian Church of Canada
in connection with the Church of
Scothuul, and which had its sphere

of location and duty in OnliU'loiiiiil
t^uehcc, was not valid under iliis
sub-section. Held al.so tliiit nn]
a.ssuniinf? the temporalities I'lmil
niif^ht be correctly descrilnMl il^
" charity," or as an " eU'eniosyiiiu v
institution," it is not in any s('1im<
<>slabli.shed, maintained, or ni;uiii(rri|
" in or for " the province of QikIkc,
an<l if the Hoard incoiporatwl In
the Act of 1858 (22 Vict, c OOJ
coulil be held to be a " conipiinv''
within the nu-aning of sub-sec. 11,
.see. !)2, its objects are certainly 1101
provincial.

(8.) Miiniciiml institutions in the province.*

•The Dominion Parliament nuiy
pasij an Act which the nninicii)ali-
ties may adopt, and which and
when they do liecomcs <jood law.

Jn Kt'SSELL v. TllK Ql'EKX,

1882, 7 A pp. Cas. 821); 51 L. .f.
P. C. 77 ; 10 L. T. 88!) ; in the
S. C. N. li. 1881, 20 S. C.
N. n. (4 Pn;,'s. and H.) 5:{G,
tile .Judicial Connnittee held the
Dominion Temporance Act, 1878,
to be valid, altliough it interfered
to some extent with the j)rodnct of
sjiirit licenses of the provinces. It
enacts that when a(io|ite(l by tin;
municipalities the sde of into.xi-
cating li(piors shoidd cease, except
for mediciuary jiui'pose.s ami such
like u.ses. Compaici with this
Hodge r. 'I"he Queen, and (Jover-
nor-(ieneral Dominion r. TheFoiu"
Provinces [Liipior Acts, 1883-IJ.
See next section, p. 141.

A regulation of the provincial
parliament dealing with saloons,
if not inconsistent with J)ominion
logi.slation, might Iw a matter pro-
jierly confided by the provincial
law to nninicipal authorities.

The validity of the Doiuiuion

Acts, 1883— I, came before llic Judi-
cial Connnittee in Nov. 1885, and
Sir Farrer Herschell, who iip[)e(uvd
for the Dominion, said: "Tlunr^i-
ment in the court below was tiiat
you lin<l .some of the nnniiri|ji\l
Itoilies in some of the provinces, Ijc-
for(> the Dominion Act, have (halt
with this (piestion of the liqiwr
Irallic, and that, therefore, when
tlu^ provinces were given exclusive
powers to make laws in relation to
nninicipal institution.s, they wcrv
givt'U the exclusive jxiwcr to iniiki^
these lifpior laws. But the virv
object of the Dominion Act was lu
take away from the provincial
legislatures some of the powers
they (Kisscs.scd, and ccnifer thn*
lowers on a central authority, mid
therefore it could not be saitl thcv
had all the |)owers of legislation
which before they could excrtio'
through their nnuiicipal bodies."
[.S'<e for full report sub-.see. i), h'C
S)2, p. 1 11.]

In llK(i. V. Wason, 1 Mnrcli
1890, 17 O. A. R. 221 [see (iHtc,
section 91, sub-section 27], Bliike,
Q.C., for the Crown, argued: A^

B.N. A. ACT, H. 02 (S).— LIQUOR REGULATIONS. 125

t(i olTcncPs, it irt siiid tliiit tlie
wilful violation of imy Icgisliitivo
Act is nil offcnei'. But very early
ill ilic first session after eonfedeni-
lidii, the Dominion Piirliainent
iic;i>laleil on tliis liead liy wlmt is
iimv H. S. C. 173, l>y tlie 2.)tli
xrtiiiii of wliieli it was provided
lliat every will'nl violation of any
Ai't of the rarHainenl of Canachi,
(ir (if any h'fjislatnre of any pro-
vince of' Canada, wiiieli is not
iiimte an olTenee of soine other
kind, shall he a misdenieauour and
IMMiishahle aceordingly. I'arlia-

lit tliMS, so far as it eoiild, re-

iDfjniseil the power of the provin-
cial leijislatures to make hiws, the
violation of wliieli slionhl be erini-
inal; tuid without interfering \\itli
cases in wliieh a speeial sanetiou
had Ik'cii ajiplied, fjave, as far as it
eoiild, a criminal aspect to the
will'nl la'eaeh r)f ])rovincial Acts.

I'l-olialily the attention of the
I'livy Council was not, in Ki'sskm-
V. Uku. [see next sub-soc], ath'-
qnately directed to important eon-
siderat ions which would have affec-
ted |K)ssilily its decision, and al-
most certainly its reasonin<^. For
example, stress was not hiid on the
great division of provincial juris-
diction involved in "Municipal
Instiimions," or on the vital but
sometimes neglected principle that
neither tile jieiieral nor the local
leirislature can attract to itsjdf a
jnrisdiction, in matters assigiunl
exclusively to the other power, by
the device of, ill the one cas<', en-
: lai'Jlinj;, or, in the other, restricting
I the f,'eoi,'niphieal urea or conditions
1 in respect of which it proposes to
legislate ; and that we must recog-
nise, as iin ineonveiiience insepar-
' able from the fech-ral system, a lack
of power anywhere to make uni-
form regidafi()ns,eo-extensive with
the whole Dominion, on certain
subjects relegated to provincial
aiitiiority. A fuller .K-velopment
of these consich'iations in that case
would have i»rcveiited serious em-
barra.ssnicuts in dealing satisfac-

torily with Ho<lgp r. Reg. [See
next sub-sec]

PoiTl.IN r. ("OHI'ORATKIN OK

Qi!KUKC, March 5, lH8;i,{> S. (". H.
185, was a case in which un(UT the
Quebec Act, 42 .t b'l Vict. c. I.
s. I, a penal suit was instituted
against tlio defendant for not (dos-
ing on Sunday his public house,
and it was there held by Hitchie,
C..I., Str«»ng and Fournier, .J.I.,
that these were police regulations
within the power of the legislature
of the province. lEeiny, Tascdierean
and Gwynne, J.I., were of opinion
that a prohibition to have the con-
viction revised was rightly granted,
being of opinion there must be
both the keeping open and sidling
to constitute an oil'enee, and .he
,; 'ualty was for an infringement of
both, and that the writ against the
defendant (diarged no complete
oifence but inei<dy one of two ingre-
dients. The judges being ei|ual, Jjeo
the appeal from the (pmshingof tlu^
pr(diibilion failed. There Stiong,
.1., said: "In The Queen r,
'I'aylor, .'{G U. C. Q. B. 21H, 1
express<Ml my coneunence in the
decision of the Supreme Com't
of New Brunswick in the case of
the justices of King's County, in
wlii(di it was ladd that luuU'r the
authority conferred by the B. N. A.
Act to legislate respecting muni-
cipal institutions, the provincial
legislature jiosse.ssecl that power
gi'uerally denominated the police
power, to n'gulate the sale of
spirituous and intoxicating li<piors,
and I adhere to that (>|>ini(>n.
Then I think this api)eal must be
dispo.seil of without pronouncing
any opinion upon the question of
statutory interpretation wlii(di was
.•irgned iiefore us, for it is plain, as
1 read the authorities, that this is
not a ca.se in which the writ of
pndiibition will lie." See City
of Frederieton, 3 S. C. R. ')().') [sir
N[ote,sec.{)l, p. GO] ; .Jonas r. Gil-
bert, Feb. 1 1, IHSI, 5 S. C. U.35G.
The loealh'gishiture have the cU-ar
1 i^ht to make hiws respecting tavern

Poui.iN I'. Con-

I'OKATION OK
(JUEIIKC.

HussKi.i. r,

•it:;

1 2(5

n.N.A. ACT, H. 02 (0).— MERGED RIGHTS,

Hwi. V.

KlIAWI.KV.

I I

Doyle v.
duffbhin-.

licenst^s, and to iin|)otio fliios, |)cnnl-
fii's, i';(.'., for riil'orcinji; siidi liiws :
lllmiin r. ('orji. (,'<iic1mc, 1H Dec.
IHHO, 7 Q. L. R. IS.

In Rko. v. FRAv,r,KY, 10 IT. C.
^l B. 153, it wn.w lirld the Ontario
IiCgi.slatnrc coiilil not add liard
labour to tlic iniprisonini-nt in-
Hi(;t<'d for s('llin<i; liquor witliout
a lici'nsc. [Rut tlii?' was reversed ;
see Hodge v. Tlie Queen, next sub-
sec] See as to validity of a|»|)oint-
nient by nuuiieipalitienof ins|H>etors
to earry out Canadif Temperance
Act, ex parte Wbi'lau, May J),
1M!)1, 30 S. C. N. B. 5SG.

T.vxES. — Munic'iiMiliMes can in-

eivaso tbe tax payable for dclav in
piiyin<; (be orif;inal demand, hihI
the additional tax will not In' hdii
as interest, but as an extra biirdii,
imposed for delay. Lyneh r.
Canadian N. W . Land Co., m
S. ('. R. 201 [see Note, sec in',
sub- sec. 10].

Where a municipality possos.«(<
a local 'option bye-law, and is i|.
self afterwards joined to aiiotlur
luuuiciimlity, tlic newnninici|mlitv,
inider the Muuici|Ntl Act, 1H!»,
s. 390, R. S. M. c. 1000. .s. 3;!il,
nuiy repeal tliis bve-luw. DovIh
V. Duffcrin, 1S92, 's Man. R.g,
R. 28(5.

(0.) Shop, saloon, tavern, auctioneer, and otlicr
licenses, in order to the raising of a revenue
for provincial, local, or municipal pvu'posos.'

! I

In re Nova
Scotia Lu^uoit
Act.

! I

' III re TiiK N(»v.\ Scotia
Liquor Act, 1H80, c 3., Att.-
Gen. Longley reported : " Tlie
interpretation of this clau.se has
elicited endless controversy by the
best legal miuds of the king-
<loni, and the I)est that can be
saitl in regard to its determina-
tion is that the Privy Council

Dow r. liLACK. ,,,^^.^. ji^^.j,,,,,, ,j, ,,,^j „,,,^ ^,.,^

regulating the sale of intoxicating
liquors by license come within the
exclusive jurisdiction of the pro-
vincial legislatures. If the pro-
vincial legislatures have the right
to fix the conditions under which
licenses can Ixs issued or granted,
it is by no means unreasonable to
assunu' that they may within the
scoiK? of their jtu'isdiction impose
such conditions as wouhl make
the obtiuning of licenses practically
impossible. The imposition of
punishment by fine, iK-nalty, or
imprisonment for enforcing any
law of the province mwle in rela-
tion to any matter coming within
f.ny of the classes of sid)jects
enumerated in section 02 is dis-
tinctly given by the B. N. A. Act,

There seems to 1h> no limit to tlii>
authority, and the same objei'tiiiii>
which are oih'ii to the severity of
the conditions iq)on which liccnsf's
are granted udght U' urged agaiu*!
the severity of tlw penalties im-
jiosed." Rut in l<oth eases he wns
not aware of any limit. IW.
Leg., p. 120.

In Dow V. Black, March 5, Wo,
L R. t) P. C. 272, a ca.se of an
aissessment on the paiish of Si,
Stephen's by an Act of the pro-
vince of New Brunswi<'k, to mis'
a subsidy for promoting a railway
already authorized In'fore the ])»■
minion Act came into o|m nitioii
The Jiulicial Comndttee, in nvtr-
sing the decision of the Supri'iiii'
Court of New Brunswick and up-
holding the viditlity of the provin-
cial Act as a local nuitter, (Iccidcii
also that the Act in question, oven
if it did not fall within sub-sec. 2,
sec. 92 (and therefore argn(>(l to
cla.sh with sub-see. 3 of sec. i)l),
would clearly he a law relating to
a matter of a merely local or pri-
vate natui*e within the meaning of
this sub-section, and therefore one

ITS.

B.y.A. ACT, s. 9L' (9).— LICENSE ON INST'RANCKS. 127

Ic for (IpIbv in
•k'lnitud, iui,l

ill not 1h' liHil

j'Xtni liiinliii

Lj'iic'li r,

iiiiid Co., 19

Note, sec jii,

vlity possoitM
iiw, ami is i|.
P(l to unoilur
kriniiniei|mlity,
il Act, isoil,
UKX). s. 3;ll),
•-lnw. Dovlf
1 Man. R.Q.

and otlicr
a rcviMnic

purposes

o limit to this
iiu' ol)jtrli(iii»
lie severity of
which licenses
' iirgetlagaiurt
penalties iiii-
h cases lie was
limit. I'lw.

\f arch 5, 1873,
, a case of nn
paiish of St.
l1 Oi tlie pro-
swick, to niis'
ing a rnilwiiy
L^forc the l)u-
ito opeinlion
ittee, in rewr-
the Sn|iiviiiP
iwick ami up-
jf the proviii-
latter, decidi'ii
question, evfii
in sub-.-^c. 2,
ore argued to
3 of sec. 91),
iw relating to
Y local or pri-
10 meaning of
then'fore one

wiiicli the provincial legislature
VIM coniiM'l. nl to pass unless its
siilijcet-inatlcr could he distinctly
siinwn to lait within cue or (tther
(if til"" <'l;is^cs of suhject.s specially
fiiiiaierated in the Dlst section.
Ser li'Union St. •Iuc(|ues de
Montreal r. Uoli.sh-, H .lulv 1W71,
L. 11. « I'- I'- 31 [scenntr, p.H4].
In Severn's east-, Jan. 2S,
1H77, 2 S C. U. 70 [sec Hcc. 5)1,
suli-sec. 2], the tax in (picstion
wiis one for liceu.ses which by the
law of the Legislature of Ontario
wi'ie re(|uired U> In- t4ikoii for
(li'iiling in li(pn)rs. In the ease of
II hnwer the Supreme Court held
llic law ultra rires, nminly on the
grounds that such licenses «li<l not
lull within the sub-section, and that
till' institution of the tax was in
I'oiirtict with powers of the Domi-
iiimi I'arlianicnt under sub-.sec. 2
of sec. Dl [sec ante, p. 52].

In Att.-Gen. kok Qt'EiiKC r.
QrKEN lNsin.\X( E Co. [Torrance,
J.]. 21 L. C. .r. 77; Mllirnied by
Q B. (Jneliec, 11 Dec. 1877, 22
L. C. J. .TO7 [Taschereau, Monk,
Tfssier, il.I., Itamsay, J., dissent-
ing]; in P. C. July ."), IH7H, 11
App. Cas. lOiK) ; :(h L. 'I'. H97,
llie ipiestion was whether clauses
ol the(iuei)ec Act, 1H75, .Si) Vict.
I'. 7., which compelled assurers to
liik(i out a license, were ultra vins
of the Quebec Legislature. Held
lliey were.

.bssel, M.U., delivering jiidg-
ineiit |at which were also present
Sic .billies Coivih', Sir H. Peacock,
Sir M. E. Smith, and Sir H.
Collier].siii(l[;{App.Cas. |). l()i>7],
after reiuhng sub-see. <l, sec. !»2 of
tile X. H. Act : "The statute in
i|iiestion [QiielMr, .')!) Vict. c. 7.]
imrports to It.., on the fuce ui it, in
exercise of that power. It enacts
that every assurer, except iH'ople
carrying on nmriiie assunuice, .shall
Ih- lM)ini(l to take out a liceii.s«>
Ix-fon- the 1st May in »'ach year,
from the revenue officer of the dis-
liict, and to lemain continimlly

AKca Co.

under lieeuM*. Tt then, hy the 2n(l Att.-Okn. fok
section, cnact.s what the pri<'e of Qckhkc v,
the Iicens4' is to Im-. And reudinsr ^'^''•''" ""i'"-
it shortly, it anxMints to this, that
the price of the license shall consist
of an adhesive stamp atlixed to the
policy, or receipt, or renewal, as
the case nmy Ik*. The amount of
the adhesive stamp is to U", in ca.se
of fire, ■'{ (K-r cent., and 1 jm-i- cent,
for other assurances on the pre-
miums |Niid. Then the 4th s<>ction
enacts that anyl)ody who, on U'lialf
of an assurer, slndl deliver any
policy, or renewal, or receipt with-
out the stamp shall 1h> liable for
such contravention to a |H>nalty of
.*<50. The 5th section .says that
every assurer iMmnd to take out a
license shall In< liable in such a
case to H |M'nalty not exceeding
.■^50 if it has Ih-cu delivei'ed with-
out an adhesive stamp. The (Jth
s«'ction says that every in-rson who
atli.xes the .stamp shall Im> Im>uu(I to
cancel it, .so as to obliterate it and
prevent its In-ing us«'d again. And
the 7th s«'ction makes all |)olicies,
pieniiiinis, receipts, or ivnewals
not staiii|H'd as require<l by the Act
invalid. It says they • shall not Ik-
invoked, and shall have no I'fTcct in
law (tr in cfpiity In-fore the oonits
of this (uovince.' Then there are
certjiin s«'ctions of the QiieU-c
Licens*' Act which are incor|>or)ited,
and the Act is not toapply tonssnr-
anees not within the jirovince.
The only provision of the QneU'(!
Licens4' Act which it is neecssarv
to refer to is the 121th section-^
' For every licen.se issued by a
revenue oflicer then^ shall be |)aid
to such i-e\('Uiie oHicer, over ami
above the duty payalde tlniei'or, ii
fee of i^l by tlie pei-.son to whom '";
is issued.' Xow the tirst point
whieii struck their Lord.sliips, and
will strike everyone, as regards
this licensing Act, is that it is a
complete novelty. No such licens-
ing Act has ever iK'en seen In-fore.
It pur|)ort.s to Ite a licensing Act,
but the licen.s«'e is not com|)elled to
|)ay anything for the license, an<l,
what is more singular, is not cum-

i,i

12S UN. A. ACT, s. 1)2 (0).— N"()VKr/rY IN LlCENSINlJ.

HVKV.S Insi'ii
ANl'K Co.

ATT.-Orw. vnu |h'11»'(1 to fako out tlio liccii.HO, ln'must'
tlicn> is no immiiiIIv at all u|hiii iIio
li('ciis<>c for not takiii;; It up ; and,
i'lntlirr lliiMi that, if iIm- policit's ai'c
issurd with the Ntiini|> they a|i|M'ai'
to In> valid, alllioM;;h no license has
U'eii taken out at all. The restdt,
theiffoie, is, (hat a lieeii.s*' is
•;i'aiited which there ai'e no means
of coni|)ellin<; the lieens)>e to take,
and which he pnvs nothing for if
he (i(N's take ; which is certainly a
sin<rulai' thin>; to In- stated of a
license. They say, (mi the face of
that statute, 'The |ii-ice of each
licens<> shall consist,' and so on.
Mut it is not a pi'i<'e to In' paid liy
till' liccns«'e. It is a price to l>e
paid hy anylMidy who wants a
policy, lH>cause without that no
policy can Ih' obtained. It may In;
that the company huysthe ndhesiM!
stamps and allixes them, or it may
he thai theassincd laiys thendhcsixe
stamps and ai1i.\es them, or pays
an ollicer of the company the
money ncccssai-y to purchase them
and adix them ; hut wIkm'xci' does
it complies with the Act.

"Another oliser\ation which
imiy Ih> made on tlu' Act is this,
that if you leave out the clauses
ahout the liccns' the efTect of tht^
Act remains the same. Il is icidly
not Inn;; more nor less than a Stamp
Act if you leavt! out tho.se clauses.
If you leave' out every direction for
taking out a license, and every tiiin;^
saiti ahout the price of a licens<',
and na'rely leave the rest o!' the
Act in, the (Jovernmeut of the pro-
vince of t^uehe<' olilaiiiM exactly the
.Sana- amount, hy virtue of the
statute, as it does with the licen.se
clau.s«'s remaining in the statute.
The penalty is on the i.ssniu;^ of
the policy, receipt, or renewal; it
is not a penalty for nt)t taking out
the license. The result, therefore,
is this, that it is not in suhstance a
license Act at all. It is nothing
naire or less t!ian a simple Stam[>
Act on |K)licies, with provisions re-
ferring to a liccn.s*', iM'caus*- it must
1)«> |)resunH'il the framers of the
statute' thought it was necessary, in

order to cover the kind of tax in
ipa'stion with le;rid sanction, ilm|
it should he nnule in the slia|H' nf
the price paid for a license. ||'
that is so, it is no use considerin;;
how far, independently of |||i>m.
considerations, the !)th sul>-seclioii,
section !I'J, would authoii/.e a siim
of moiK'y from an iiisurjiuce cmii.
pany in i-cs|h'cI of a licence. Wi|l|
rej^ai'd to the precedents citcil, ii
was (dieted on U'half of ilie iip.
pcllaiits that tli<High at first si^'jii
il might apjK'ar that this was nui
a license, aial that this was Mot iIk.
piice paid for a li<'cuse, yet il i niilij
\h' shewn iiy the existing legislalidn
in Kngland and Anu-rica ilim
licenses were conslinitly granted im
similai' terms; and that, tlierei'niv,
in construing the Dominion A<l,\\v
ought to consti'ue it with referciKv
to the other subsisting legislaliini.
Their li(H'dships think that a vcrv
fair lU'gumenl. Mut the (picstidii
is, is it true in fact ? When llic
instances which were prodiicnl
were examiiu'd, it was found llicv
were of a totally ililTerent cliiuiictir.
They might Ik- described as liceiix'*
granted to traders on paynu'nl (it'u
sum of money; Iml the price to Ik'
paid hy the tradei' was csliMiiiIni
either according to the aniomit nf
business done by the trader in tlir
year previous to the granting of
the license, or with reference In
the value of the house in wliicli
the trader cai'rii'd on biisinos, nr
with reference to the nature of llif
g(M>ds, as regar<ls quantity is-
|N>cially, sold by the trader in
•he previous year. They vvciv all
ca.ses in which the price liclunllv
paid by the trader for the licriis'
at the time of granting il vviisn.s'cr-
tainud by these consideralions. It
was a license paid for by thelni<lii,
aial the actual price of the licrns'
was ascertainetl by the anK)nMl (if
the trade he did. This is not a pin-
nu-nt dc|H-n(ling, in that .scn.-«-, (in
the amount of the trade previously
done by the trader. It is a ]»}■
ment on the very transiictioii
occurring in the year for which tin'

n.y.A. ACT, s, 02 (0).— TEMPEUANUE DESIRABLE, 129

liwiinuistnkcnoiit.Hnil is notrcHlly
u iifitv |Mii«l lor u licfiiHc, liiif, as
tins Inch siiiil licl'iirc, a iiirri- Hluinp
nil the IMilicV, IVIK'WIll, or I't ipl."

His li()iil>lii|i llu'ii fDiisidfrcd
wlictlicr it cmiin iindcr siili-sce. 2
(«(' tlmt s<'('tii)n for tin- (•oiiiplc-
tioM of his jmlj.'nn'iit, p. 120 1, and
iitliniicd llic dccisii)ii ol' til*' Ct. (-1.
H. I'cir (^iirlwi', and disuiisst'd Ilic
ii|)|irjii,

Tlmt ciisc was examined in
Hank of Toidiito v, riiiinlx', in
q. II, (iiifliir, .Ian. 211, IHH.j,
2!) L. I', .r. 78; in V. V. July 1),
1,SH7, 12 App. ('as. at p. 5HI ; ")ti
!,. ,1. r. C. 87 ; .')7 L. T. 377 [vrt-
tinti;\i. II.'I]. Alt. -(It'll, of Qnclicc
r. Uccil, ill court lirlow H S. V. 1{.
40S; ill 1», ('. Xov. 2(1, 1HS4, 10
A|ip.Cils. Ill; -)l L..J. 1». V. 12;
52 L. T. ,'!!»;{; ;{;{ \V. I{. V>\H [.sec
Biili-scc. 2, (inir, J). Hi)]. T\\r
(|ii('stioii ill llic latter ea.Hc was us
to tlie Milidily of a stamp duty on
t'xiiiliits pi'Dcliiccd in courts of law,
wliicli ill n <;n'at many instances
wciiilil not 1)1' paid by the person
first cliai'fjcil with it.

Ill 1K7H till' Dominion iMis.si'd
I till' 'r('iii|M'rjiii('(' Act. This Act
I WHS jii'lil to Ik' valid in 1HH2 l>y
I tlif I'rivy Coimcil in Eiij^land.
|Rrssi;i.i. r. Tin; (^i'KKN, in S. ('.
jN. H. Maicii ISSl, 20 S. (\ N.

B. (l I'li-s. mid n.) -).•{(! [Allen,
jC.J , W.ldoii, Wclmoic, and Dnll',

J.I J; in 1». ('. .Inn,. 2;j, 1H82,
Mr .Vlip. Ciis. 82i); -)! L. .J.

IP. (". 77; K; L. T. SH{). .Sir
IMniiiiijru.. K. Smith (K-livercd
judgment, ihciv Itcinir also present
Harn.'s Peiu'ock, Sir UoU'rt
[Jollier, Sir .liimes llaunen, and
Sir Hiehard Coiieh.
.Sir :M. K. Siiiiili siid : "This is
appi'iil from an order of the Su-
eiiie ("(.iiri of the province of New
Brunswick, di.se|iiir<;iii}; a rii/r nisi
ehich had Ik'cii i^ranted on the
lapiilication of the appellant for a
teerfiomri to remove a conviction
jmaih' Uy the poji,.,. ma-ristrule of
jthe city of Fredericton against
Ihmi for unlawfully .selliug jutoxi-

S 2310,

cutinR li<piors, contrary to tin* pro- IIp****:"' v,'\'i\r.

visions of the Canada Temperaiii'e J'''""''

Act, IS7H. No ipieslion has lieeii

raist'd as to (lie snllicieiiey of the

coiiv ii'tion, snpposin;; the nliove-

nientioiied stulnte is a valid le;^islti -

ti\e Act of the Parliament of

Canada. The only ohjecl ion made

to the conviction in the SnpreiiU!

Court of New Mrniiswick, and in

the appeal to llii- Majesty in

Council, is that, liii\in}{ re<j;ard to

the provisions of the H. N. A. Act,

1S(S7, relatiiirr to the distrilinlioii

of Icfjislalive powers, it was not

co!ii|M'tent for the Parliament of

Caninhi to pass the Act in (piestioii.

'I'lie .Supreme Court of New Hnins-

wick made the order now iiiipealed

from in deference to a iml;;iiient id'

the Supreme Court of Caniida in

the case of The City of Frederielnn

r. 'l'lie(iiieeii [.v«'c «;//c, p. ()0|. In

that ca.sc the tpicstioii of the \alidity

of the Canada 'l'eni|H'rance Act,

1H7H, tlioii<{li in aiKilhor shape,
directly arose, and the .Supreme
Court of New Mriinswick, coii-

sistiii}; of six judges, then decided,

Mr. .Inslici' I'almcr dissent ing | 1!)

S. C. N. H. (.'{ Pugs, and 11.) l.'JO,

Hilcliie, CI., Koiirnier, Tasch-

erean, and (Swyniie, .1.1.], that the

Act was lieyond the comiM'teiicy

of the Dominion Parliament. On

tin- ajipeal of the city of Frederit'-

ton, this jiiilgment was re\ersed \>y

the .Snprtuiie Court of Cannda,

which held, Mr. .Inst ice lleiiry

dissenting, that the Act was valid.

(The ea.sc is rc|iorte(l in .'{ ,S. C.

11. .W').) 'I'll*' present appeal to Her

Majesty is hroiiglit, in elTcct, to re-
view the last-mentioned decision.
" The preamlile of the Act in

(piestion states that ' it is very de-

sirahle to promolo temperance in

the Dominion, and that there should

1m> uniform legislation in all the

))rovinces respecting the Irailii' in

into.vieating liipiors.' The Act is

(livi<led into three parts. The first

reliites to ' proi-eedingsfor bringing

the second part of this Act into

force'; these', ond to ' prohiliition

of trailic in intoxicating liiiiiury ' ;

il:

'I' 1
it I

130

B.N.A. ACT, s. 92 (0).— QUASI OPTION.

i I

IhTssFXLt;. Tiiii an<l fho tliinl to ' |M'iinlti('s and
"'■'*'''''"'• pi'iiscciitioiis lor ott't'iiccs aj^iiinsl

the second part.'

" Tlic mode of lirin<jin«j tlie
second part ol' tlic Act into I'orce,
slating it succinctly, is as follows:
On a petition to tlie (ioxernor in
Council, si<;ni'd \>y not less than
one-foni'lh in numlier of the electors
(i{ any connty or city in the Domi-
nion <inalified to v te ut the election
of a nienilMT of the House of Coni-
ino;:s. prayinj; tliut tlic second part
of the Act slioidd he in force and
lake efVwt In such <*ounty or cily,
and that the voles of all the electors
Ih' taken f >ror >i;;ainst llie 'idoplion
of the |,efiiion, the (}o\t'rn(a-
<}ene:ai, after certjiin prcseilicd
notices and evidence, may issue a
proclamation, "mhodyiny such |m'-
lilion, with a view to a poll of the
electors heiiif.; taken for or agaiii>t
its ivloplion. When any petition
has Imh'U adopted by the electors of
the county or city named in it, the
(Jover'ior-trcneiid in Council may,
after the exjtiration of 60 days from
the day on which the [ictition was
adopteil, I y Order in Council pub-
lished in the Uazelte, declare that
the second part of the Act shall Im-
in force and take effect in such
county or city, and the siuueis then
to become of force and take effect
accordiiiffly. Such Order in Coun-
«'il is not to 1k' rexoked for three
years, and only on like |)etition and
proccdui'e.

"'I'he most im|>orlant of the
prohibitory enactni ■ contained
in llu? second pc : of the Acl is
see.')!), « licli iiiac'is that, from
the day on which thi-i part oi this
Acl comes into for^'e and tnkcs
ertect in any county or "-ity, and
for so lon<; thereafter is the same
continues in f( rce therein, no \m-
son, u'llcss It Im' I'o" exclusnvly
sacramental or niedicina! purposes,
or for hond Jidv use in some ail.
traile, or nmiiiifactiire, under I'.ie
regulation contained in the fc>urth
sub-section of this section, or as
hereinafter anthori/.ed by one of
the four next .sub-sections of ihis

section, shall, within such coiintv
or city, by himself, his clerk,
servant, or ajjent, expose or kcfii
for .sjile, or directly or indirectly
on any pretence or ii|ion imv di'.
vice, sell or bart«'r, v.. 'ii considci-.
ation of the puicha.se of any other
projH'rty jrive, to any other pcr.son,
any spiritnons or other into.xicatini;
liquor, or any mixed liquor, ('ii|iiilj|e
of liein;; used as a iH'verap', nnij
part of whi<-li is spirituous or otiier-
wise intoxicating.'

"Sub-sec. 2 provides that 'iieitlier
any license issued to any distiller
or brewer ' (and after (■niiiiirnitjii.;
other licenses), 'nor yet ary diher
description of liceiis*' wliiitever,
shall in anywise avail to render
legal any act done in violatiiniof
til's section.'

"Snb-sec. .S provides fcrtliesile
of wine for sacramental jmiiimws,
and snb-.st'c. 4 for the side ef
intoxicating liquors for incdieiuiil
and manufacturing purposes, iIkm'
.siK's being made subject to piv-
scrilMHl conditions.

"Other sub-s(ctions provide tljal
producers of cider, ami distiilei>
and browei'.s, may s«>ll li(|ii(Pi's ef
their own uianiifaclure in cei'lnin
(piantities, whi(di may be teiiiieil
wholesale qiiantilicH, or for cxiiort,
subject to prescriU'd colHliti(j|i.>,
and thcic are provisions ol a like
nature with respect to vine-^ji'dwiiij;
companies and manufactinvis uf
native wines.

"The third part of the Acl iiiiiei.
(sec. KM)) thai whoever expos'*
for .sale or sells intoxicating li(|ii(ii«
in violation of the second |Mirt of
the Act, should be liiilile, en
summary conviction, to n |Kimliv
;.i not less than flU dollnis ioi the
tii'st offence, and not less tliiiii
1(H) dollars for the sei-ond (ifteiKr,
and to Ih- iiiiprisoned for ii terin
not cNcc'ding two nionllis ti . tli''
iliird and every sub.sccpiciit (illt'iiee;
i,'i inloyicaling liquors in ivs|)tft
to which 'iny such ott'cnce Im- Iktii
committed to Ik; forfeited.

"The effect ot the Acl vvliHi
brought into force in uny cuiiiii;

)N.

such ciMinlv
f, liis clerk,
;|)()S(' or kci']i
or iiuliri'ctly,
upon liny tie-
. ',11 I'onsidci-.
• of any (illur

OtlllT iHTSdll,

I'V iiitiixicatitiij;

liquor, ('ii|hi)iIi'

iK'Vcrap', and

tuous or iitlicr-

I'SthntMu'itlicr
o liny ilistilltr
ir <'iuinicraliiis;
yi't ary (iIIht
iis«' wliatcvcr,
vail to ri'ihliT
ill violatioii of

idfs for tlu'siile
I'lital jmrpos's,
ir till' sale I'f
i for iiii'iliciiiul
purposes, llif*
iulijiH;! to pri'-

nns provide that
, iiiul disliili'i*
s»dl liijiKirs lit
•tun' ill eerliiin
uav '«' terniet'i
8, or for cxiiiirt,
M'd ('(iiiditiiiih,
sioiis ol' a iiki'
to vinc-trniwiii;'
iiniil'ai'liirer>i of

•f tlif Act ciwcls

liocvcr cx|Mix'<

ixicatiiiff li(|iiii.-

sfi'oiiil im'l t'l

U' linlde, I'li

u, to M iH'iialu

) ilolliirs tor thr

not Ics- tlw.i

second (dlelin,

)iii'il for a t''i"

IllOlltllS iV. till'

(sccpli'llt (iHi'llif;
ipiors ill iV!.|Hrt
oiTi'lu'C lia- Ih'iII
rft'itt'il.

the Act will"
■ ill any eouni;

B.>r.A. ACT, s. 92 (!)).— T)ELEG>TIOX OF POWETIS. I'M

or town within the Dominion is,
dcscriliiii',' it f;enenilly, tf. prohiliit
the sale of intoxieatir^ liipiors,
(xcepl in whcdcsale ipmnlities, or
for I'Oitaiii siM'cilied purposes to
rf'<;iil«te the trallie in the excepted
cases, and to make sales of liquors
in violation of the prohibition and
remilatiims contained in the Act
eriniinal olfcnces, punishalile by
fine, nnil for the third or siihse-
i|iicnt ofFcnct! hy iniprisoiiniont.

"It was ill the first /..<p con-
tended, thoiiffh not very strongly
relii'don, hy theap|M'llaiit's counsel,
that assiniiiii}; the Parliament of
Canada hnil authority to pass a
law for priihihitiiig' and re^julating
the sale of ihtoxicatin*; liquors, it
could not il(de<;ate its powers, and
that it had done so liv delefjaling
the |Niwcr to iiiiiijj into force tlr.-
|iroliiliitory and [icnal provisions
(if tlie Act to a iiiiijority of the
clect(a's of counties and cities.
'I'lie »horl answer to this (dijeetion
is that the Act (n«'s not dele<;at('
any le};i>lalive powers whatcxer.
Jl contains within its(df the wliide
Icfjislalion on the nialler.s with
wliicli it (h'ais. 'Pile pi'ovisiou
thai ccitain parts of the Act shall
come into (iiH'iation only on the
l)etitioii of a iimjoiily of eh'ctors
does not confer on these persons
IH.wcr to Icf^ishit ', Parliament it-
I wdf enacts the condition and evi-ry-
I thiiii; which is to loUow upon the
jcnndili<in l.cin<r fiiHi'.led. Condi-
tional h-iislalion of this kind is in
Iniaiiy cases cunvciiieiii, and is
jwrtaiiily not iiniisnal, and the
Ipowir so to Iciiishite cannot lie
jdenicdtothc Parliament of Canachi,
rvhcii the siiliject of lejjislation is
pvjthili its competency. Their
jLoidships eiiliielv a<;re'c with the
jOpinicM of Chiel' .lnsti<e Hitidiie
Ion this (dii..etiori. If aiilhority
Iwi tile poii.t wvre necessarv, it will
fnc loinid in the case of 'i'lie (^ueeii
»'. Hiirah, lately iKi.Me this Board
[:i A pp. Cas. m);.si;mifr, p. M)].
"The ;cnerid (piesti-m of the
■!)ni|Htiii a (•!' the Dominion Par-
lianieiii I,. ^,a.ss (he Act deiM'ii.ls on

the construction of the Olst and Rcsskli, v. The
!)2iid seeti(ms of the British Xorth *^"^-^^-
Aiiierien Act, 1S(57, which mo
found in Part VI. of the statute
under the heading, ' Distrilmtioii
of TiCgislativc I'owers.'

"The nist section enacts, 'It
shall he lawful for the Queen by
and with the advice niid consent of
theSeimteaud House of Coniinons,
to make laws for the peace, order,
and good government of Canada,
in relation to all matters not
coming within the idasses of sub-
jects iiy this Act assigned exidii-
sively to the legislatures of the
provinces; and for greater cer-
tainty, but not so ns to restrict
the generality of the foregoing
terms of this section, it is hereby
dcidared that (notwithstanding any-
thing in this Act) the exclnsivi'

icg!slati\e authority of the Parlia-
ment of ''anadn extends to nil

matters coming within the cdn-M s

of subjects iii'Xl hereinafter cmi

mcrated'; then after the eniuiier-

iilion of U!) (dasses oi' siibjeets, llie

section contains the iollowiog

words: — ' And any matter coming

within any <d' the (dasses of .siiii-

jects enumerated in this .section

shall not Ik" (!)>enied to conic

within the <dass (d" matters of a

local (ir private nature comprised

ill the enumeration of tiie (dasses

of subjects by this Act assigned

e\-(diisiv(dy to the legislature of

the ;iro\ iiice.'

"The geiiei-nl sidieme of tin-

Hiilish North America Act w

r. gardlothe di^lriiiiitioii of legis-

la i\(' |)owcis, and the general

scoiM- and (dfect of sees, itl and i)2,

am! their ndatioii to each other,

were fiillv eoiisidereil juid com-
mented on l>y this Hoard in the

case (d' till' (.'ili/.eiis' Insiirauee Co.

r. P.iisoiis, Nov. 2(5, IHHl, 7 App.

('as !)(5; 5\ h. .1. P. C. 11; 45

L. T. 721. [Ser siili-sic. '3, s'\'.

1)2. J Aeconling to the prn.eiple

of construction there pointed out,

the first ipiestimi to Ih> determineil

is, whether the Act now in ipics-

tioii falls within inn (A' the classes

I '>.

* >\ ■

;

132

n.X.A. ACT, s. 92 (9).-.L0CAL INVASION.

UrssKLi, V. Tub <,f subjects oiiiiin.iatod in wc. 92,
Qi'KKN. „mj n.ssifjnrd cxclnsiM'ly to tin-

Irflisliitiircs ol' flic |>i'ti\ iiict-s. !l'
it (i(H's, tlu'ii lh<- further (|ii('sti( ii
would iiris,', ii.imfly, wliftlii'i' llic
.subject ol' tiif A<-l d(M'S iKi! also
I'idl witliiii OIK- of tlif ciMiiiiiniled
cliisses ol' suiijccts in see. 5)1, inul
su diM-M not still In-Iou^ to ill)'
Dominion Piitlinnicnt. Mnt it' ilie
At't d(N'.s not I'miI within any ol'
the elass<'s ol' .sulijcct>> in see. f)2,
iio I'nrtlit'i' i|ni>stioii will remain,
I'oi' it eaimol l>e contended, and
inileed was not contendetl at tiicii'
Lordships' har, that, if the Act
d(H-s not come within one of the
(.'lasses of snlije<'ts assif^ned to the
|ii'o\inciid legislatures, the I'ailia-
ol' Canada had not, hv its general
|M)W«'r 'to make laws for the |Hacc,
ord'v. and };ood <;overnment of
Cai.ima,' full le<;islati\(' authority
to |».iss it.

" 'J'hrec cla.sses of sulijeets enu-
merated in .see. 92 were referred
to, under each of which, it was
contended Ity the a|i|M'llanl's coini-
sel, the present lef;i,slation fell.
These wei'c : —

"9. Shop, sidoon, ta\ern, ane-
tioncer,and other lu'cnses in order to
the raising; of a revenue for provin-
fial, local, or nnuiicipal purposes.

" i;{. Ptopeity iind ci\il rifj;hts
in the proviiuc.

" Ki. (icnerally all matters of a
merely lin-al or private nature in
the provime.

*' With ref^ard to the lirst of
these classes. No. 9, it is to lie
oliservcd that the power of fjrant-
iiifi li<'ei- les is not n.ssif^ned to the
|n(»\incial Icfjislatiues for the
purpose of v:<^- -...iiifi trade, lint
'in order to the raisiuf^ of a
rexfuue ior provincial, local, or
municipal purposes.'

"The A«'t in (ptestion is not a
liseal law ; it is not a law for
raising revcinic; on the contrary,
the ell'eet ok' it may In- to destroy or
diminish rcvemie ; imieed it was a
main ohjeetion to the Act that in
the city of Frederieton it did in
|toint ol fa I diminish the souicis

of mniiici|>al revenue. It is cvi-
dent, therefore, that the matter nf
the Act is not within the<lnvs(if
snhject No. 9, and conseipientlv
that It could not have liecn piiss'ij
liy till' |iroviiiciid legislature liv
\irtue of any authority coni'crivij
upon It liy that suli-.s<'etion.

"It ap|H'ars that liy staliitisnf
the' pro\ince <if New Brunswick
authority has U-eu conferred ii|ii>ii
the municipality of Frederieton to
rais<- money for nnuiicipal piii'|iii.'ii>
liy }j;rantiii<; licenses of the iiiitiiiv
of tlio.s*' dcserilH'd in No. 9 of sr.
92, and that licenses ^riuitcil to
ta\criis for the sale of into.\ieiitiii|;
liipnirs Were a profitahh* .suincf nf
revenue to the municipality. I:
was contended by the ap|Kllam'.
counsel, and it was their iimiii
arfjuinent on this part of tliecas',
that the 'l'cni|M'rance Act inter-
fered prejudicially with the tnillii'
I'ldiii which this revenue was dr-
rived, and thus invaded a sulijiit
assifiiied I'.xclusively to the pro-
vincial le[>;islatui'e. But, siip-
posinji the cllect (if the Acttnln'
prejudicial to the revenue deriviil
liy the municipality from licciiMs
it does not follow that llic |)ii-
minion Parliament mi<;ht imt jmss
it liy virtue of its fieiicral autlidiilv
t<i make laws for the peace, (inln,
and e:o(id •Government of Ciinaila.
Assumi'/.^ that the matter of iIk'
Act (1- .'s not fall within the tliw
of subject described in No. i), that
sub-.section can in no way inter,
fere with the {general autlidiily nf
the Parliament tu deal with tliiil
matter. If the ar<i;umetit (if tiic
appellant that the power ;;iM'ii t«
the proxineial hjijislatures to mis
a rexeiiue by lieeli.ses |irc\elils llir
Dominion I'arliainent from le^i>'
latin}; with ivf^ird to any iirtiili
or commodity which was <ir iiii;'lii
1m' covered by such licenses win
to jirevail, the conse(pienc( wmiid
be that laws which mifiht be iieee--
.sary for the iinblie jjood or tin
public sai'ety could not Im' eiiiielil
at all. .Suppo.se it Wei-e deeliiid I
be mil sNiiry or cx]M'dieiil loi ili'

t)N.

It is cvi-
ho inuttcr of
1 tin- flass of
C(iiisf(|ii('iitly

ItOt'll iHlSscd

•{jisliituii' li\
ily I'Dnrcrivil
ilioii.

ty statiilcsiif
V Uniiiswick
>iit'<'ri't'(l ii|Hiii
'n'dfiiflon lu
I'ipal |nir|i(i,*i>

oi' the IllltUI't'

No. J) of ST.

{^ri'lllrd to

if illtoxlcatiii;;

nhli' siiiucf 111'
lii'ilialil). 1'.
Iu> a|i|K'llunt'.s
IS tlicir iimiii
rt (if till' fiW',
• Aft iiiliT-
til the triiflii:
\ ciiuo was (Ic-

l(l«'(l a sulijirl
to till- |i|i)-

Hut, su|i-

tin- Ai't ti) In'

nciim^ iliTivt'il

from lii('iiN<,

tliat tlic Ui-

luiflllt lint |iJl*s

lUTal aiitlKiiiir
!(• [icacf, (iiilcr,
■lit (if CiiMiiiln

matter nf ili'
illiiii tlir (111"
I in No. i», tliii'

no way iiiiii.

i-al mitlidiiiv I'l

(leal with ilial

'•^lllllflll of till'

|towcr f;i\in '"
■<iatiii'cs to MUM

CS |ir(!VCIlls llir

I'lit from '''p*

I to any Hi'ti<l''
li WHS <ir iiii;:lii

II licenses Will
se(ilien(<' ""111''
mijilit Im' ih('<>-
ic fjood or ill'

not lie cllilili'l
were tleeliiol I

qM'ilienl I'll !''■

B.X A. ACT, s. 92 (9).— ABUNDANT CAUTION.

133

national safely, or for iwliticnl
reason!', to proliibit tlic sale of
amis, or the earr/ii;; of arm.s, it

cniilil not 1 (iiiteiiiled that a |ir(>-

vineial le};islatiire would havo
aiitliority, liy virtue of snb-.see. 5)
(wliic!' alone is now under dis-
cussion), Id pass any .such law,
nor, if the appellant's urfjument
were to prevail, woidd tlu- Do-
minion I'nrlinnient 1m' competent
to pass it, since such u law would
interfere prejiidieially with the
revenue lierixcd from licon.scs
granted nnder tin- authority of tlie
pi-ovineial leji;islatiire I'or the sal(>
or the earryin<; of nrm . 'riieir
Lorilships tliiiil thir I lie right
eonslnietion oi (lie eiiiietmcnt.''
iloi's not lead to any such incon-
venient e(inse(pience. It appears
to tiieni that le;;islation of the
kind lefernd to, tiion<;h it n i^rl '
iiiterlVrc with the sale or use m nii
article ineliKh'd in a lice'ise granted
iinder snli-see. 1), m n( ' itself
ie-jislation upon or witliin ..le .<nl>-
jeet of tlial siili-seelion se-

(liirntly is not liv reasoi! .icii

out of the (general poW(-r oi the
Parliament of the Dominion. It
is Id Im' oliserved that the e.\ press
pidviMoii (if |||(> Act in (piestion
that no lieniM's sl..ill avail to
leiidrr ieiral any act (huie in \iola-
lion (if it, is ((Illy the expixissioii,
iiiMiied pidlialily from aliuudant
eiiiKion. of what would U' neccs-
siiiily implied from the legislation
iNell. iissiinii;if; it to he valid,

" Ne-;.. their iiordships eannnt
think tlinl the 'reinperance Act in
(iieslidn properly lielongs \n the
clas^ (,f si|l,j,.,.|s ' i»n)|K'rtv and
Civil Ki-hts.' ll l„is in it.; l,.fr,d
ns,Hct 111 <ili\ii,iis Mild chise simi-
larity In laws which place restric-
tidiis (III the side (ir custody of
poisoiidiis drugs, or (if dangerouslv
C'.vphisive siili- ,„ii,.(.s. riicsc things,
as well as iiii.,xj,.ai;i,^ li. pairs. c,m,
"' '•^■. Ix' hehl M^'prd|M'rtx, liiit

« law

pla.ing icsinctidiis (III tlioir

mde, eiistodv, or reiiidval, on the

/?•■( .1 thfll the fic,. sale or iihc of

tlieni is daiig..rdii> to piil.lic sjifelv.

and making it a oriraimil oiTcnco Krssr.i i, e, rm

punishiible hy fine or imprisonment Q'*-'^^-

to violate these restrictions, cannot

jiroperly he deemed n law in reln-

tioii to property in the use in

wliitdi those words are ii.scd in

the i)2nd .section. What I'arlia-

ment is dealing with in legislation

of this kind is not a matter in

relation to property and it.s rights,

hut one relating to jmhlic order

and safety. 'I'liat is th<? primary

matter dealt witii, and though in-

ciih-ntally the free use of tilings in

wlii(di men may have pro|)erty is

interfered with, that ineidentnl

interference d(M's not alter the

character of the law. Upon the

.same considerations, the Act in

ipiestion cannot Im' regarded as

legislation in relation to civil i-ights.

In however large a sense these

words are used, it could not have

lieeii intended to prevent thi-

I'arliament of CaiwKhi from (h>-

claring and enacting eerUiin n.ses

of pioperty, and certain acts in

relation to property, to Ik; criminiil

and wrongful. Laws which make

it a criminal oifence for a man

wilfully to set (ire to hi own hoiiso

on the grmiiid that such an act

endangers the piililic safety, or to

oM'rwork his horse on the ground

of crii(!dy to the animal, though

alTectinj; in some sense properly

and tlie right of a man to do es he

pleases with his own, cannot iiro-

perlv lie regarded as lcgislati( ii in

relation to property or to civil

rights. Nor eoidd a hiw which

prohiliit(Hl or restricted the .■(ale or

exposure of catthi having ft conta-
gious disease Im' so rt'garded.

Jiiiws (if this nature, designed for

the |)roiiii)lio!i of pnlilie order,

.•afety, or morals, and which siih-

ject those who eontnncnc them to

criminal procedure ni id puiiishinent,

liidong to tiie siilijeci of pulilic

wrongs rather tlmu to thai of civil

rights. They are of a imtiiri'

•.vhicli fall within the general

autlioritv of I'arliaiuciit to make

laws for tlie order and good goverii

nient of Canndu, and have direct

131-

n.X.A. ACT, s. !)2 (5)).— CUIM. LICiUOR LAWS.

Hi'ssrxi. «'. Thk rcliitioii to irimiiinl law, which is
"^'■*'"'' one ol' tlio ('iimni'rat('<l chisst'S of

siil)jcfts assi<;m'(l exclusively to
llie I'arliaiiient of Ciiiiada. It wmh
said ill tile course of the jild^fiiieiit
III' this ISotird in the ease of the
Cilizeiis' liisiiraiic*' {'oiiipuiiy of
Caimda v. I'aisoiis, that llie two
sections (!ll and J)2) iiinst (m- read
* to^jethei', and the laii}^imjj;e of one

iiilei|(ii'led, and, where in'cessai v,
iiKHlified hy that of the other.
Few, if any, laws coiihi lie made
liy I'ariiiiiiieiii for the|M'acc, order,
and }^ood jiovernnient of Ciiniida
wliieli did not in some inci(h'iital
wayalYecl |Hd|ie!ty and t-ivil rif^hls;
and it eoiild not have lieeii iiileiided,
when assuring to the |ii'o\iiiees
c.Nclnsive lej;islali\e aiillioriiy on
the siilijects of |iro|ierty «::d civil
ri<;hts, to exehnle the I'ailiamenl
from the cxeirise of this f;eneral
power wheni'ver any such inci-
dental interference would result
from it. The true nature and
cliaraeter of tile le<risliilioii in the
|iaiiieular instance under discussion
must always Im- determined, in order
to aseerlain the class of subject to
which it really U'lonjis. In the
|iresent case it appears to their
liordships, for the reasons already
>;iven, that the inattii' of tin Act
in ([iicstion does iiol properly Ih--
loll<; to the class of slllijecls ' I'ro-
periy and ("ivil Itij^lits' within tin-
iiieaiiin<j; of snii-see. 1,'{.

'' It wasar^iued liy Mr. Ui'iiiiimin
thai if the Act relateil to criniinal
law, it Was provincial criminal law,
and he referred to snli-«ec. I") of
see. !(2, namely, 'Tlie imposilioii of
any piinislinieiit liy line, penalty, or
iiii|ii'is<inniciit for eiiforciii<;aiiy law
of the proxince made in relation to
aiiN matter coming within any of
the classes of sillijeets elinmcralcil
ill this .section.' No douhl this
aiiriinieiit would Ih' well foimdcif if
llie principal mailer of the Act
eciiild lie liroiiirlit within any of
these ciasses of snlijeels ; hut as far
ax they luiM' yet ^ioiic, their Lord-
ship-< fail to s«'e ihiil this has Ik-oii
doiii'.

"ll was lastly contended ilmt
this Act fell within suh-see. Kidf
s«'c. S)2, — • Generally all matters of
a mci-ely local o'- 'personal iialmv
in the province."

" It was uot,of coiir.sc, conleiidnj
for the ap|M-llanl that the Le<ri>.|i|.
tare of New Brunswick could lia\i'
passed the Act in ipieslion, wliidi
eiuhraces in its enactnients all ilir
provinces : nor was it denied, with
respect to this last contention, that
the I'arliiiinent of Canada iiii<;lii
have passed i\\\ Act of tlie natiniol
that under dis<'Ussion, to takcclTtit
at the same time throughout tlir
whole Dominion. Their Ijoi'dslii|i>
understand the <-outentioii to Ih'
that, at U'list in the aliseiiee of ii
general '.iiw of the I'arliameiii nf
('aiiiiil:i, the provinces might liau'
p:issed a l<K-al law of a like kind,
each for its (>nvii province, ami lliiil,
Us the prohiliitory and penal paih
of the Act in question were locniiir
into fi.rci' in those counties and
cities (»nly in which it was adopttd
in the iwiiiner prescriln'd, or, as it
wius .siiiii, ' hy l(K'al option,' nw
legislation was iii effect, and on it>
fiK'c, ii|Miii a matter of a iiierrly
local naliire. The judgna lit i>l
Allen, C.l., delivered in the .Sii-
preine t'ourt of (he province of
New Brnnswick in the ea-e nf
Uaiker V. The Citvof Krederietcii,
IS) S. ('. X. H. (."{ l'"^'>- '^ »l.
1 ■'{!), which was mlverse to tin
validity of the Act in ipiestion,
ap|H'ai's to have Im-cii founded iijii'i:
this view of its eliaetmellts. Tlli
learned ( 'liief .Justice sivs:— • Had
this Act prohiliili-d the Nile >>l
liipior, instead of merely rest liilin;;
and legiilating it, I should have had
no doiilit alNiiit the power of tin
I'arlianienl to pass such an Ad:
hill I think an Act, which in elTiri
aiitiiori/.es the inhahitaiits of eiicli
town or parish t
of H merely 1o«'h1 nature, whieli, In
the H'linsdf the lOlh suli-ectiini

: i H

ws.

UNA. ACT, s. i/2 00— l^Nn<'()HMITY OF LAWS.

135

Ii'IhIciI iIdh
li-scc. Mi (if
I iniitti'i'v iif
'Oiiiil nntiiiv

', «'i)lltcli(lnl

lif Lt'<;i>.lii-

• imld li!i\r

*li<iii, which

cuts nil till'

(Ifiik'd, witli
tciilimi. tliiit
imdii nii'rlii
)iu iiatiiri'iil
to tllkcclTrcl

(lUJi^lKlllt till'

ir Ii(i(il>lii|i»
ntidii to Ih'

lllS'llCf of II

arliaini'iil nf

ini^^lit liiiM'

a like kind,

lice, ami tliui,

. [K'nal |iai'i<

Were ti> I'diiic

i'<iimti('s iiiiil

was a(l(i|itt'il

1h'(I, <h-, as ii

(i|ilioii,' till'

i'\, and (HI it>

of a iiU'i'i'ly

jiid<i;iii( lit III

1 ill till' Sii-

|iniviii('(> uf

I lie cnx' nf

t' Fi'cdt'iictdi,

Pu-;s. .^ B.).

Imtsc to till

ill (iiicstioii,

I'liiiiidcd u|ii<i!

Iiiifiit>. Till'

siy> : — ' Hail

(lie Nilf iii

cly rt'stiicliii;;

IIMlId llllM' llllil

IMiwcr III' till
Mich ail Acl :
liiicii ill tiriti
taiits (if cmli

lllutc lilt' Nlll

fct for wliiiin.

id iiiidcr wliiii
li(]>ioi's mil)
with niatli'i'

ire, wliicli, '»

ill >lll)-M'Ctillll

of s(H'. !••_' (if the Uritish North
A'Mcrica Act, arc within the cxclii-
fivc cciiitrol of the local Icfjislaturc'

" Tlicir Ijonlsliips cannot, concur
ill ilii^ \ii'\v. The declared ohjcct
of I'arliainciit in ,)assiiifi; the Act
is thai there siioiild he iiniforni
l(';;islaliini in all the |iro\iiices
ivs|icciiii;r the traffic in intoxicatinj;
li(|iiiiis, with a view to |>r()iiiotc
ti'iii|ii'i'aiii'e in the Doniinioii. Par-
liaiiieiit d(M-s not treat tlie proinotioii
(if t('iii|ieraiic(' as desiralile in one
|ii'(i\ iiice iiioie than in another, liiit
axli'siriilile everywhere thi'(Mi<;lionl
till' i)iiiiiiiiioii. 'I'lie Act as soon
as it was passed U'ciinie a law for
till- \vliiil(> Doiiiiiiion, and lht>
ciiai'tiiieiilsof the lirst par!, relating
to ihe iiiacliinery for lirin^in;; ilie
scniiid pari into force, took elVcei
Hill! iiii<;hl Ih' |iiit in motion at onci^
anil everywhere within it. It is
true that the prohihitory and penal
parts (if the Acts are only to come
iiilii I'lirce ill iiiiv county or city
ipiiM the adiiption of ii petition to
that I'Ifi'cl liy a inn jorily of electors,
hill this conilitional application of
thcM' parls of the Act (hn-s not coii-
viil the Act itself into le;i;islatuiii
ill nialidii to ii merely local mailer.
The (ilijfcts and scope of the Icfiis-
latiiiii are still ;;eiiellil, viz., to
pi'iiiiiiite tein])eriiiice liy ineaiis of a
miifiiiiii law tliroiii(h(iiit the Do-
mini.in.

"The manlier of liriiij;iii}i the
pmhiliitiiiiis and penalties of the
Act iiiiii force, which Pnrliameiit
iiiix ihim-iht lit to aihipt, (hies not
alter its ^.reiieial and iinifonii
cliiiiaiter. Pailiament (hvils with
the snlijeei as one (if f;eiieral con-
oeiii to the Diiiiiiniiin, upon which
unifiiriiiityiif li.jrislalion is dcsirablo,
and Ihe I'arliaineiit alone cat. so
deal with it. There is no frrouiid
or preleiice for sayiiifr that the vil
or xiee siinck at" hy the Act in
'piestion is local Of exists only in
one proxinee, and that I'ailian'ient,
nnder cohiur of f.">iieiiil h'-rislatioi:,,
is (lealiiifr with a provii.cial matter
only. If is therefore iitmcct ssary
to di.sciiss the considdiiiioiiM which

a .state of cinnunstjiiiccs of this Kussfxi, i». Tiik
kind nii{(ht present. The |tresent 'i""*'"'
le<;ishiti(>ii i.s clearly meant to apply
a remedy to an evil which is as-
sumed to exi-' tliroiiir|ioiit the
Dominion, and the local option, as
it is ciiHed, nu more localises the
siihjeet and seo|)e of the Act than
a provision in an Act for the pre-
M'litioii of contagions diseases in
ciittli! that a pulili(^ otlicer siionld
|iroch(ini in what district.s it should
come into elTc"', would M»>ke the
statute its<df a niert! l(H-al law
for each of these districts. In
statutes of this kind the h-;.;islation
is ;ieiienil, and the provision for
the special application of it to par-
licidar places do«'s not alter its
character.

" Their Jjordsliips having; come
to the conchisioii that (he Act in
ipiestion (l(M's not fall within any
of the classes of snhjecis assigned
e.iicliisi\ely to the |)iovinciiil le;;is-
latnrcs, it U'conies nnnecessiry to
discuss the further ipiestioii whether
its [irox isions also fall within any of
till! classes if siiltjects eniimcrated
in sec. i)l. In alistainin;; from
this discussion, they must not 1h'
nndcrstiiod as intimating an\ dis-
.seiit from the opinion of the Chief
Justice of the Supreme Court of
Caniidi' and the other judges, who
held that the Act, as a general
re;.;iilatioii of the (rallic in iiitoxi-
ciitiiiir li(|iiors throii;;h(int the
J)iiniini(!ii, fell within the class of
siili'p'ct, 'the re;;;iiliitioii of trade
and conimeree,' eiinmenitcd in that
.sc'tion, and was, on that ground,
a valid exercise of the le};isliili\e
power of tli(! I'aiiianieni of
Canada."

.Iiidi;inenl of the Supreme Court
of Canada atliriiied with c ists.

In lI(»|)(iH r. TlIK (iUKKN, ill 1|,iimik r. I'mk
the conn lielort- Jniie 'M, 18S'i, QiKKN.
7 O. A. U. 2((i, Spra^ijic, C.J.,
Hiirton, I'atterson, and Morrison,
.J.J. A., reversin;^ lia};arty, C..I.,
Arinour, and ('aineron, .J.J., Ki
r. C. g. H. 141, lo.S, who had
held the Act ultrii fires; in J'. C.

130 UNA. ACT, s. 92 (0).— PROVINCIAL PENAI/I'IKS.

! I I'

IIoDOBt.TiiE DiH-. lo, 1HH3, 0 App. ('as. 117;

(JUBEN. Q.J ], .J p. (. Ij 50 J, 'I' ;«,1,

fill' (|iit'sli(iM was, liiul tilt' Lcfiisla-
tiirc til' Oiilai'io iiiiv aiitlu>rity to
enact such rf<;iilations as were
t'liat'tctl l>y the Mtiaril ol' ('oiiiinis-
sionc!'. , aiitl to iitatt' olTciiccs ami
niiiu'x penalties I'or their iniVaelion ;
mill, set'ttiitlly, that if the le^jislature
» liatl siieh aiitliiM'ity, eoulil it dele-

gate it to the Hoard ori'oniinission-
ers or any tither aulliority ontsiile
their own ie^rislalixc ImmIv ? As in
llussejl J'. The (^neeii, ho in this
case the jiiilgnient is jjivcn fully
anil eoiitains all the facts.

The jiuljinieiit was delivered hy
liord l''it/.<ieralil, there heinjj also
present Sir Uarnes -Vacock, Sir
R. Collier, Sir l{. Coiieii, and Sir
A. llolihiiiiso.

" The Ap|)ellant, Archil).iM (i.
llittlp', the proprietor of a tavt i-n
known as the St. .James' Hotel, ui
the city of Toi'onti), ami who, on
the 7lli Mi\\ 1881, was the holiliv
of a license for the retail of spi', i-
tuous liquors in his tavern, and
also lieen.s(>d to keep a hillianl
saloon, was summoned heforc the
police magistrate of 'I'oronto for iv
breach of the resolutions of the
Liceiin' Commissioners of Toronto,
and v.as convicted on evidence
sntlit'ient to sustain the conviction
if the magistrate hail authority in
law to make it.

'• The conviction is as follow.s,
namely : — « Convicmon. — Can-
aila: Province of Ontaiio, County
of York, City of 'I'oronto, to wit : —
lie i( remomhertd, that on the lOtli
May 1881, at llie city of 'I'tuimto,
in the counlv of York, Aivhibaltl
G. Iloilge, of the saiil city, is con-
vi«'teil iM'I'ore me, (Jeorge Tavlor
Denison, Ksquiie, police magislrate
in ami for tlu' siiid city of Toronto,
for that he, (he sjiid Archibald (i.
Jfoilge, bein^ n person who, after
the passing of the resolution liel'O-
inafter mentioned, received, and
who, at tin- time of the committing
of the offence hereinafter nien-
tiuneil, heltl a li'/ensc umlor the
Liquor Licen.* Act, for and iu

respect o' «he tavern kimwn a> the
St. James Hotel, situate on mrk
Street, within the city of 'I'imdiiIo,
on the 7th May in the year iifoir.
.said, at the said city of Toronto,
did unlawfully permit, allow, ami
suffer a hillianl taldc to be mhiI,
and a game of billiards to be plnynl
thereon in the sniil tavern, iliirin;;
the time prohibited by tin- Iiii|iiiir
License Act for the sah^ of lii|iiiir
therein, to wit, after the hour of
seven o'chx'k at night or. the siiil
7th May, In-ing .Saturtlay, agiiiiiM
the form of the resolution of tlif
Lieen.se Conniiissioners for the lity
of Toronto for regulating taverns
and shops, passeil on the ^'iili
April, in the year afore.said, in siitli
ca.se nuiile and pro\ ideil.

'Thomas De.xter, of saiti city,
License Inspector of the i-ity ii[
Toronto, being tlie com|)lainaiit.

'Ami I ailjuilge the .saitl Aiclii-
baltl (}. Hoilge, for his said nlTfiiif,
to forfeit ami pay the sum of Iweiily
dollars, to be paid :iil applii'il
nccoriling to law ; ami also to |p;iy
to the said Thomas l)e.\t«'r the sum
of two dollars and eighty-tive ciiits
for his costs in this behalf; anil if
the said .s«'veral sums be not |.,iiii
forthwith, th •» I order that llic
same 1m' levietl by distress and .silc
of giKiils and chattels of the .siiil
Archibaltl G. Hoilge ; and in ilermill
of sufficient distriss, I ailjiidgf tin-
said Archibald (i. HiH'ge to \<t im
]>risoneil in the commtn gaol of iIh'
.said city of Toronto and comity (»!'
York, at Toronto, in the counlv nl
York, and there be kv\)i at Imnl
labt'tir for the space of lifteeii tliiys,
unless the .said sums, ami the costs
mill charges of conxi-ying of tlif
.said ArchibalilCl. Hodge to the saitl
gaol, shall be sooner paid.'

"On the l>7th May 1881, a niK
»/i.vi was obtained to removetliat ivm-
vietion into the Court of Ciiiirii'>
JJeiich for Ontario, in order iluil il
sliouid Ih' <pmslii'da> illegal, on llif
grounds, iM, that the sjiid re.sola-
tion of the said Licet' ^-Commisioa-
ers i> illegal .ml luiauthori/.iil ;
2ntl, th I the »«tid License Coui-

I3.N.A. ACT, !*. 02 (0).— NKW OFKKNCKS.

137

missioiicis liml no nuthority to puss
ilie ivsoliitioii |)rohil)itin<; tlit- ^iiiiic
(if hilliiinlsiis in tlic sniil resolution,
nor liiul iIk'v power to antliori/.e tlie
imiK)siti()ii of 11 fine, or, in (lefinilt
iif |)!ivment tiiereof, iinprisonnieiit
for a vidliition of tlu' siiid resoln-
lioiij ;{rtl, tin- Liipior Meenw Act,
miller wliieli the siiid (Ntnnnissioii-
iTs linve Mssunie<l to pass the sii<l
ii'S(pliiliiin,islH'_viinil the nuthority of
llic Ij(';;islatureof Ontario, and iloes
not aiitliorize the saitl resolution.

"It will Ih' oliser\ed that tlie
iinwtioii whether the hn-al le'^isla-
iinc fdiild confer nuthority on the
License Commissioners to make the
KMilntidti in (piestion is not di-
rtily niiseil by the rule nisi. On
liir 'JTlli ■lune 1H81, that rule was
iniiile nlisolute, an<l an order pro-
nnnnccd liy the Court of (Queen's
IVncli to quash the conviction,
riic jn(l},'iiient of the Court, which
Mi'ins to hnve lieen inianinious,
wi'.s delivered hy Ifnfinity, C.J.,
with I'Inliorato rea.sons [1(5 C C.
^l II. 141], hut iinnlly it will he
I'diind that the decision of the
('(lurl rests iin one ;rround alone,
iiml does not profess to decide
llie (piestion which on this np-
IHid wiis princi|>nlly di.scussed Im--
t"H' their Lordships. The Chief
■luMiee, in the course of his
jiid^tnient, says; — ' It was stnte<l
In u* tli.'it the [(iirties ilesircd to
I'lvsciit directly to the Court the
MTV iin|i<ntant (jiiestion whether
;lii' local Ic'.nslntiu'o, nssumin<j thnt
ii liad till' power thcni.'-clves to
Miiikc tlicx' re;;ulations a.\d create
ilicsc 'ilTonees, and annex penaltii s
I'l! llii'ir infi'aetion, could delejja.e
■I'll IKiwrrs to a Hoard of Coni-
iin>vioncr> or an\ other authority
iiut«idc tlicir own lcji;ishiti\(' ImmIn.'
" And, a;iain, he aihls : — ' We
re tlnis hroii^jht i- face of a \ cry
■rioMS(|ii..(iiin, nanu'ly, the power
I'f the Oiiiiuio heirislatuin' to \est
1 1 the LnciiM' Hoai'd the power of
'ciitin^ new offeiu-es and nnne.\-
"in'<""lli''s tW theircommissi'ui.'
Aiidconeliiden his jndnniont ilius,
I'h rrinj; to tlu' resolutions ;— ' The

le;;islature lias not eiinrted any of HrnxJi ». Thh
these, hut lias merely aulhori/,ed ^'■'s■'••
each Hoard in its <liseretion to
make them.

"' It seems very dilficult, in (uir
jud;;mi'iit, to h(dd that the Con-
federation Act }ji\es any such
power of delcf;iitin<j authority, first
of creating a (/iiiisi ofTeiice, and
then of punishin<r it hy lino or ini-
prisoniiieut.

We think it is

power that must Ik- exercised liv
the le<;i>lature alone. In all these
ipiestions of ultra virrs the jiowers
of our lc}j;islature, we consider it
our wisest course not to widen the
discussion liy considerations not
necessarily inv(d\cd in the decision
of tin 1

toiiit in eoiitrover.sy.
We, iherelore, enti-r into

^^em-ral consideratiiui of the powers
of the leirislatni'e to legislate on this
siiliject ; hilt, assumiiifi this ri;;ht
so to do, we feel constrained to llidd
that they cannot devolve or didepite
these powers to the tli.seretion id' a
local Hoai'd cd' Comiiii.ssioiiers,

" ' We think the deft>n(hint Iuih
the ri<{lit to .say that ho has not
otreiided against any law of the
province, and that the convictions
cannot he supported.'

"The case was taken iVoin tlie
(Queen's Heiich on aii|N-al to the
Court of (\p|»eal for (Ontario, under
the Ontario Act, 1 1 Vi<'t. e. 27.
(s. 17), and on the ItOtli June 1HH2
that Court reversed the decision id'

the Q
tl

ileei,

Heiud

I, and aflirmed

le conviction

'•Two (piesti'.us . nly ap|M'ar to
have Ihi'ii di.scii.ssed in the Court
id' Ap|H'al, 1st, that ilie Jjc^^isia-
ture of Ontario had not authority
to eiiai't sii.di regulations as were
eiiai

'leil liv the Hoard of Coiiiiu

sioiK !.-;, and to create ofTeiices and
annex |K'iiltit.< for their iiifr

•d, 2nd, that if the h

■ac-
'is-

tion

iatiiri' hud such iiiithoritv, i' could
hot dele<;ate it to the Hoard of Com-
missioiieis, or any other authority
outside their own lej;i.slntive IhhIv.

" This w^-oiul ground was tliat
on wliii li the judfimont of the
Court of Colleen's Hciii h rested.

iJiH |{.N.A. ACT, s. !»2 (!»).— KXCISK COMMISSIONKKS.

( I.

IpH^qjj

IIoiwB V. Thb "'rbp judfjincnts dclivrivil in
*^"*'"'" the Coiiit of A|i|N-al l»y S|ini};nt',

(/.J., iiikI Itiii'toii, J. A., iii'f able
iiikI t'liilMinitc, iiiitl wfi'i' iiiliipti'il
Ji_v i'atlfi'Sdii iinti ISIdrrisMiii, .Iil.,
and their liordsliips have dri'JM'd
considt-niblc aid t'roni a caiitid
considorntion of tlu' reasons jjiM-n
in lM)tli «'ourts.

" Tlie iv|i]H'llant now seeks Ut
reverse llie decision of the Coinl
of A]>|M'al, both on the two };roiin<ls
on wliich the ease was diseusM'd in
that eourt a:)d on others teehnieal
but substantial, and wliieb were
nifjed iK'fore this Hoard with zeal
and aliilitv. 'Vhv main (pieslions
arisj' on an Aet of the liej^islalnre
of Ontario, and on what liaxe lH>en
tailed the resohitionsof the Lieense
Connnissiuiiers.

"The Aet in (|iiestion is e. IKI
of the Hevis«'d Slalntes of Ontario,
1H77, and is eited as'tlie Liquor
liieeuse Aet.'

" See. '.i of tills Aet |iro\ides for
the appointment of a Doard of
liieeuse Connnissioners for each
eitv, county, union of counties, (»r
electoral district as the Lienleiiaiit-
(}o\eriior may tliink tit, and sees. 4
and ■'} are as follow : —

'Sec. 1. Licenst' Commissioners
may, at any tina- In'fore the lirsi
day in each year, |iass a resolution,
or resolutions, for rej^ulatin^; and
determining tlie matters following,
that is to say ; —

' (1.) For ileiinin;; the conditions
andtpialilicationsreipiisite
to obtain tavern licenses
for the retail, within the
miMiicipality, of spirit-
nous, fermented, or other
manufactured li(pu)rs, and
also shop licens<'s for the
m\v )>y retail, within the
nunii<'i|Mdity, of such
liipiors in shops or places
other titan taverns, inns,
nleiiouses, iHt'rlionses, or
places of public entei-
tiiinmeiit.

' (2.) For limiting the mnnlN'r
of iHvern and sboiilicensi's

respectixely, and for tic
liuinji the res|ieeti\e linics
and localities witliin
which, anil the persons in
whom, such liniitt<d niuii-
Ix'r may In- issued wiijiin
the year from the lirsi ilnv
of May on one year lijj
tia' thirtietli (hiy of A|iiil
inclusi\eof the ne.\t \,w.
• (3.) Foi' declariuf; tlial in citic.
a nnmlH-r not exceeiliii"
ten iHTsons, and in towns
a nninlN-r not e.xceeiljiii'
four jN'rsons, (pialitit'il tn
have a taxfi'n licensi', niiiv
Ik- exempted from lln'
necessity of haxinjinlj ilu'
tavern aceommodalioii iv-
ipiired by law.
' (4.) For rcfiulatinf; the taMiih
and shops to 1n' licensed.
' (5.) For fixiu}! and detiniiij;
the duties, |M)VVers, iiikI
privilcf^es of tile ins|M'('l(ir
of licoiisi's of theii' dist-
rict.
'Sec. 5. In and by any sinji
resolution of a lioai'd of jjii'i'iis'
Connnissioners, tiie said lioanl iiiiiy
impose |M'nalties for the infraction
thereof.'

" Sec. i;{ |ildliibils the siilr nl
inloxicatiiif; licpiors fi'om or iiltir
the iiour of seven of tile clock (in
Saturday till six of the clock nn
MiHiday mornini; thereafter.

"Sec. ')! imposes on any iM't'sciii
who sells spirituous liquors vvillniul
the lii'cn.se liy law I'equircd, nr
olhervvise violates any other pro-
vision of the Act, in respect (if
which violation no other piuii^li-
meiit is prescriU'd, for the fii-l
<iff'ence a penalty of not less tliiiii
twenty dollars and not more tluiii
fifty dollars, In'sidcs cost.s, and I'dr
tile second olTencc imprisoMincni
wilii iiard lal'our for a |N'i'i<iil nni
excecdiii}; three calendar monliis.

"Sec. ^y. For pnnishineiil dl
olTences a<rainst sec. 4.'{ (retiniriii;;
taverns, &<•., to Ik- closed ffdni
seven o'clocl< on Satur<l;iv iii);lii
until six o'clock on Monday iiKirn
ing), a iM'iialty for the iirsi (^ffrii"

Ol |,

Slid

his

and

in (

thai

trail

oH'i 1

cilv

"''41

liarii

days
eosb

conn

UNA. A( r, s. SL» (I))— (4AOL OH I'AYMKNT.

130

of iiol liss tliiiii Iwfiity <li)llars witli
(•i)si>, or lil'li'fii (lavs iiii|iris<)iiiin'nt
witli Imril liilioiir, iiikI with iii-
cn'ii^inj; |ifimltifs I'or .•^•(•oiul, lliinl,
mill Idiirlli (ilVfiict's; anti st-c. 70
|in)\iili'- lliat wlicrc tlif rcsidiilioM
ol' llic liiiciisc ('ominissioiifi's iiii-
|K»c> ;i |H'liiilt_v it inav 1h' rrcoxcivd
luiil I'lil'iiro'd lii't'orc a iiia<;istratc in
tilt' niiiiiiit'i- and to till- extent that
hvc-liiws of inunieiiMil corporations
iiiav Ih- eiiforeeil iiiider the antlin-
riiy (if the Miiniei|ial Act.

" Licfiise ('oimnissioiiers were
iliily ii|p|Hiintcd under this statutj',
wliit, on 2')th Ajiril IHHl, in pin-
Miiinee of its prox isions, made the
rocpiiilioii Ol' re<{iilatioii now qiies-
tiulinl ill reliitioii to licensed taxel'lis
or shops ill the cily of Toronti),
which coiiliiins, inter alia, the fol-
lowiii}; piii'ii^^riiphs, \ iz. : —

' N'oi' shnll any such licen.sed
|MiMiii, directly or indirectly as
iifoi'csiid, |M'i'iiiit, allow, or siilVer
liny liowliiij; alley, liilliard or ltaf,',a-
Icllc trthle to Ih' iisciI, or any panics
Ol niiiiisciiiciits of the like deserip-
litiii 111 In' ;iliiycil in sni'li tavern or
sliiip, 1)1- ill or upon nny premises
ciiiiiii'i'ti'il therewith, diirini^ the
time proliiliii mI hy the liiipior
l/iceiis' Act, or liy this resohition,
lor the sile of liipior therein.

'Any jici'son or |)er.so!is {^nilty
ol .my iiitriietioii of nny of the pro-
\isioii- of iliis resolution shall, upon
coliviclioii tllil'iof U't'ore the police
lii.i^i>ll'iite of the city of Toronto,
forfeit .mil jmy n peiinlly of twenty
doUiiis Mild co>|>; iuid ill defiiuil
t>f iiiiMiiiiit tlii'ivof furtliwilii, the
Niiil police iiin^ivtriiic sliall issue
his wiuninl to levy the slid penalty
hy iliMrcss iinil sde of the floods
and ehiittelN of the offemler; and
in defiiiilt of siitllcient distress ill
that iH'liiilf, the Miid police inii«,Ms-
triite >|iidl liy wari'imt coiiunit the
(lUi iider to the coimiK.n jjaol of tiie
city of 'roroiito, with or without
hard laltonr, for the period of iit'teen
days, unless the siid iHiialty and
<'osts, and nil co.sts of distress and
fonmiiiineiit, lie sooner paid.'

"I'hc a|i|H'lliiiit was the hoUler

of a I'ctail license for his t4ivern,
and iiad si}{ned an undertaking, a.s
follows : —

' We, the undersigned iiohlers of
licens«>s for tavt-rns uiid sh()|is in
the city of Toronto, respectively
acknowledge that we liiuo .severally
and respect ivt'ly received n copy of
the rt'soliition of the License ('oin-
missioiiers of the city of 'I'oronto
to regulate taverns an<l shops,
]iasse<l on th(> 25th day of April
last, hercniito annexed, upon the
sevei'iil (hites set op|)osite to onr
respective signatures hei'eiinder
written, and we severally and re-
spectively proiiii.se, iindei'take, and
agree to oliserve and perform the
conditions and provisions of such
resolution. — A. (1. liouciK.

'2nd May, Tavern.'

" He was also the hohh'r of a bil-
liard license for the city of Toronto
to keep a billiard .siloon with one
tabh; for the year IHHl, and, ninler
it, had a billiard table in his tavern.

" He did permit this billiard
table to be ii.scd as such within the
period prohibited by the resolution
of the Licen.se C'oniinissioner.s, and
it was for that infraction of theii'
rules he was prosecuted and con-
victed.

"The lu'eccding sfateineiitof the
I'lH'ts is suHicient to enable their
Lordships to determine the ques-
tion raised on the appeal.

"Mr. Kcrr,(^('.,andMr. Jenne,
in their full and very able argn-
nii'iit I'or the ap|H'llant, informed
their Lordships that the lirst and
principal i|Uestioii in the caii.so was
whether ' The Liqii )r Licc-nse Act
of 1877,' in its 1th and otli sections,
was II lira vira of the Ontario
Legislature, and properly said that
it was a matter of iin[)orfunee
as iH'twcen the Dominion Parlia-
ment and the legishiture of the
[)roviiice.

" Their Lordship.s do not think
it necessary in the jircsent case to
lay down any general rule or rules
for the construction of the Briti.sh
North America Act. They are

llomir, V. Tmb

QUBB.N.

■ S •''■ : "

I ■ I

til

140

B.N.A. ACT, s. 02 (9).— Ul'SSELL KXl'LAINEl).

HnDOB V, Tui

QUKKN.

iinproN8(>(l with tlw JuHtifP of iiii
ohsorviition liy Iliifjiiitv, C'.J.,' thai
ill all flK's«> ({lU'stioiis of ultra virm
it is tlio wisest course not to widen
tlie (iisciission bveoiisiilerntions not
iieeessnrily involveil in tlie division
of the point in controversy.' Tiiey
do not forget tliat in a previous
decision on this siune statute
(I'arsons v. The Citizens' Ct)ni-
|mnv, Nov. 1»(J, \HHl, 7 A pp.
Cas'. 9(5; 51 L. J. P. C, 11; l')
L. T. 721 [src sul.-se.'. i:{./w7]),
tlieir liordships recoiuuiended that,
'in |M'i'i'oriuin<; the diilieuh (hity of
(h'terniiniu}; sueli tpieslions, it will
U' a wis*' cours*' for those on whom
it is tlirown to deeiih- ciirh ease
■wliieh ai-ises as Ih'sI tiiey can, with-
out entering more largely upon the
interpretation of tlie statute tlian is
necessary for tlie decision of the
]tarticular ipiestion in hand.'

"Tile appellants contended that
the Ii(>gislature of Ontario had no
I«>wer to pass anv Act to regulate
the liipior traflic; that the whole
power to jMiss such an Act was
ciuiferred on the Dominion I'arlia-
nieiit, and c(>ii.sc(pienlly taken from
the pru\iiicial legislature, l>y
sec. 91 of the Urilish North
America Act, IMti?; ami that it
did not come within any of the
••la.s.ses of sulijecis assigned ex-
clusively to the provincial legisla-
tures l>y sec. U'2. The cla.ss in
see. 91 which the hitpior Tjicen.se
Act, 1H77, was .Slid to infringe
was No. 2, 'The Ucgulalion of
Ti'ade nnd Commen'c,' anil it was
urged that the decision of tiiis
Hoard ill Kii.s.sell v. Uegina [x.-r
previous ca.se] was conchisi\(? that
the whole suhject of tll(> liiplor
tratlic was given to the Doniinion
1'arliiuiient,and conseipieiitly taken
itway from the proxincial Icgisla-
luii". It ii|)peais to their Lord-
sllips, liowe\er, that the decision of
this trihiinal in that ca.se has not
the effect supposed, an<l that, when
|iro|)«'rly considered, it should 1h'
taken rather as an authority in
piipjiort of the judgment of the
Court of Apiiciil.

"'I'he sole f|ueslion there wiis,
whether it was coiii|M'teiit to tlic
Dominion I'arliameut, iindci' j|>
gciici'iil powi'rs to make law.v for
the peace, (M'der, and good go\ei'ii.
mciit of tiie Dominion, to pass III,.
Caiiada Temperance Act, 1H7H,
which was inlcnded to U'lipplii'iiiiji'
|o the several provinces of the Do-
million or to such parts of the jini.
viiices as hIkmiIiI locally adopt it.
It wasnotdoiilitcdtliattlieDoiiiiiiiiin
I'arliainent had such nut hority un-
der .sec. 91, unless the sulijcet fell
within some one or more of ilii>
clas.ses of siilijects which liy .see. 02
were assigned exclusively to tin'
legislatures of the provinces.

*'lt was in that ca.s<> conti'iidcil
ihal the suhject of the 'I'eniperiiiKT
,\ct properly Inloliged to No. l.'tnf
sec. i)2, ' I'roperty and Civil KigliN
in the I'rov iiici-,' which it was siiiil
iH'longed eXelusively to the pro-
\iiicial h'gislatiire, and it wiis on
what .seems to lie a misapplji'iitiiin
of sonic of the rea.sons of this iinnid
in oh.serving on that conti'iitinn
that tile ap|H-lliint's counsel pilii-
cipally relied. These oliservatidiis
should 1m' interpreted nccordiii;; U>
the suhject -matter to which tiny
were intended to apply.

"Their Lordships, in thai cii'*,
after comparing the Teiiipcnimv
Act with laws relating to the sale
of jMiisons, observe that, —

'Laws of this nature, desigmd
for the |)romotioii of ])uhlic (inlcr,
safety, or morals, and which sub-
jeet those who contravene tlirin In
criniinal proecdiiri'and punishiiipnt,
iH'long to the suhject of imliiic
wrongs rathe;' tliim to that of civil
rights. They are of a nature wliicli
fall within the general authority uf
I'arlianicnt to make laws Inr tin
order and gcHxl governiiieiit df
(^iiiada.'

"And again : —

'What I'arliainent is dcalin;
with in legislation of this kind i>
not a nialler in relation to pi-ii|ii'H.^
and its rights, hut one relalinj; t"
piihlio order and safety. 'Jhnt i<
the primary matter dcjill with, mid

IKl).

tluTO Wlis,
l-llt til tllc

iiiKlcr ii>
If lii\v> for
mmI p)\('ni.

I to |PI1>'« till'

Aft, 1H7S.

ly ailo|ii it.
lu-l)oiiiiniiiii
iitliority nil-
sulijfct fell
iioiH' of the
h Ity wc.ll'j
vcly to till'
iiicfs.

ii> colitiiiili'il

'r»'in|n'riiii(T

to No. lit of

Civil lli;;lil.

Ii it WHS stiiil

to tilt' \m-

\ it wiis (in

isti|i|ilii'iiliiiii

i)f tliis Itiiiuii

I (Minti'iiliiiii

I'oiiiiscl |iriii-

ol)sri'viiliiin>

lU'conliiij; to

wliifh they

in timt iiw,

'rt'iiiiMiiiiiii'

i<r to the sail'

at —

\m; (Irsijini'i!

plllllil" lll'IlT,

(I wliicli siili-
ivciu' tlii'in III
tl punishinoni,
•ft of iml'li''
J tlmt of civil
I luitnrt'wliifli
111 aiitliiirity iif
' laws lor till'
ovfrniufiit (if

it is (Iciilin.:
if this kind i>
ion to pniiMVlv
)nf rf latin}; tn
ifety. 'I'lint i^
(Iwilt with, mill

B.N.A. ACT, s. 02 (9).— PUBLIC SAFETY.

141

tlii>u;;h iiK'iiifiitally tlit> fit^t* ntM' of
iliiii;{-« in wliifli iiirn may lia\f
|)i(i|H"rly is intfrfcrfd witli, tiiat
iiicidiiiliil iiiti'ilVrfni'f dofs not
alltr till' cliinaftfi- of tin- law.*

"Ami tlifir Iioi'il.slii|>s' I'fuson.s
(III that |>iirt of liu> casf ai'c thus
(•(inrlildrd : —

''I'lic Hue natuii' ami flnifactfr
(if the li';;islation in the iiaiticular
instiinn' untlfi' iliscnssion must
alwavs In' (htfiiniiuMl, in oi-dci' to
asci'itniii the idass of .sniijrfl to
which it ivally licloii<;s. In tin-
lucsciil case it a|i|M'ins to thfir
hdi'dsliips, for the I'ca.sons aln-aily
>^\\vi\, that tlif lualtff of the Aft
iiHiiicsliiiii (ItM'S not |ii'o|K'rly Udon^
t(i the class of siilijcfts " l*id|H'ity
and Civil l{i<;lits" within the niran-
in;; nf siili-scclion 1,'{.'

"It ainicais to tlicif Loi(lshi|is
that Uiisx'U r. Tin' (^Uff u [xrc \»v-
\ inns case], wlicii pro|K'rly nnilff-
stddil, is not an authority in sup-
pdit df the apiHdlunt's contfution,
and tlicii' lidi'dsliips do not intend
Id VHiy (If (h'|iart from the reasons
expressed fdi' their judf^ment in
that case. The prineiplf which
that case and the ea.sf of The
Citizens' Insurance Company illus-
trate is, that sidijeets whiidi in om-
as|iect aiul for one purjiose fall
•within s«r. J»2, iiaiy in another
asiiect and for lumther pnrpo.sc fall
within see. ill.

"Their Lordshiiis proeeed now
to cdusiih'r the sulijeet-nmtter ami
leHi.dalive (diariicter of sees. 4 and o
•if 'The ]/uiu(ir License Aft of
1H77, c. 181, llexised Statutes of
Ontiirid.' That Act is so far con -
lined in its (ipeiatidii to muniei-
iHililiesia the province of Ontario,
and is entirely hical in its (diaractcr
and operation. It authori/.cs thi-
appointment of License Commis-
su.ners toa(t in eaidi muincipalit v,
ami einiKiwers them to pass, umhT
the name of resolutions, what wv
know as hyeduws.dr rides to delino
the conditions and (pndirieations
retpusite for (ditainiiij; tavern or
shop lie. ii.ses for sde liv retail of
Spirituous Ihpn.rs within 'th,. ,„uni-

ciiNilitv; for linntin;; tho nnmlKT Hownit r. Taie
of lif<'n.s4'S ; for ileidariiifj that a 'l*""""'
limited mnnUr <if |M'rsons (pndilied
to have tavern licenses may Iw
exempted from ha\ iiid all the tavern
aceiHiimodation reipiired liy hiw
and for re;;nlatin<{ licens4>d taverns
and shops, for detiinn<; the duties
and powers of license ins|M'etors,
and to inipo.se penalties for infrac-
tion of their resolutions. These
M'em to Ih- all matters of a nu-rcly
local nature in the {irovince, ami to
In- sinuhu' to, thou;!h mit identi<'al
in all r('s|M'fts with, the powers
then lNdon<rin<; to nundeipal insti-
tutions tinder the previously exi.st-
in;; laws |>a.ss4-d hy the KkiiI
parliaineiits.

"'i'heir liordships consider that
the iMiwers intended to In- conferrt'd
liy the Act in (piestion, when pro-
perly iimlcrst(MMJ, are to make re;;u-
lations in the nature of |N)lice or
iniinici|ial re<{nlations of a merely
local character for tin- ;;(hnI •;o\i-rii-
meiit of taveriKs, &c., lic»'n.s*-d for
the stile of liquors hy retail, and
such as are calcidat«-d to i)ri-.s»'rve,
in the municipality, |N>a(-e and
puhlic decency, and repress drunk-
enness and disorderly and riotous
conduct. As such they cannot he
said to interf(-re with tin- j^eneral
r(-};iiliition of trade ami comim-rce
wliicli lieloiiirs to the Dondnion
Parliament, and do not contlict
with provisions of the Canada
Tcmpcriince Act, which does not
ii|>pear to have as yet liuen locnily
adopted.

"The sulije(-ts of le;{ishition in
the Ontario Act of 1M77, se(-s, 4
and >'), sci-m to come within the
heads XoH. S, 1 "), and 1(5 of sec. 1)2
of Mritish North America Statute,
18(57.

" '''lu-ir Lordships are, therefore,
of opinion that, in relation to
s(-cs. I and 5 of the Act in <pies-
tion, the Le;;isluliire of Ontario
acted within tin- powers conferre<l
on it liy the Imperial Act of 1H07,
and that in this respect there is no
conflict with the powers of the
Dominion Piiiliiiim-nt.

,11

IMAGE EVALUATION
TEST TARGET (MT-3)

1.0

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S IB "■

2.0

1.8

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►

Photographic

Sciences
Corporation

23 WEST MAIN STREET

WEBSTER, N.Y. 14580

(716) 873-4503

.<!.^

^\^<' c^<

142 B.N.A. ACT, s. 92 (9).— DELEGATES DELEflATING.

HoDOBV Tub
Qdeen.

,' ■ ;•• '■

I -M

" Assiiiiiing that the local le<;is-
liitiire had [wwcr to legislate to the
full extent of the rcsohitioiis piisscd
by the Liceuso Commissioners, and
to have enforced the observance of
their enactments by penalties and
imprisonment with or withont
hard labour, it was fnrther eon-
tended that the Imperial Parlia-
ment had eonferi'ed no authority
on the local legislature to delegate
those [)owers to th(^ License Com-
missioners or any other persons.
In other words, that the power
conferred by the Imperial Parlia-
ment on the local legislature
shouhl be exercised in full by that
body, and Iiy that body alone. The
maxim delfnius non potest dele-
gave was i- . ■! ; .i.

"It appears ^o their Lordshii)s,
however, that ;i'ijection thus

raised by the ■■ /peli; nts is founded
on an entire r..i' 'oiueplion of the
(rue chai'acter i\:\ position of the
provincial leglslatiU'cs. They an>
in no .sense (h-legaies of or acting
under any manchite from the Im-
perial Parliament. When the
British North America Act enacted
that thei'c should be a legislature
for Ont'M'io, and that its legislative
assembly should have I'xclusive
authority to make laws for the
province' and for provincial pur-
poses in relation to the matters
enumerated in sec. 92, it conferred
powers not in any sense to be
exercised by delegation from or as
agents of the Imperial Parliament,
but atithority as plenary and as
ample within the limits prescribed
by sec. 92 as the Imperial Parlia-
ment in the plenitude of its power
possessed and could bestow. Within
these limits of subjects and area
the local legislature is supreme,
and has the same authority as the
Imperial Parliament, or the Parlia-
ment of the Dominion, would have
had under like circumstances to
confide to a municipal institution
or body of its own creation autho-
rity to make bye-laws or resolutions
as to subjects specified in the enact-
uieut, and with the object of carry-

ing the enactment into operation
and effect.

" It is obvious that such an
authority is ancillary to legislation,
and without it an attempt to pro-
vide for varying details and ma-
chinery to carry them out might
become opj)ressive, or absolutely
fail. The very full and very
elaborate judgment of the Court of
Appeal contains abundance of pre-
cedents for this legislation, entrust-
ing a limited discretionary autho-
rity to others, and has many illus-
trations of its necessity and con-
venience. It was argued at the
bar ihat a legislature committin";
important regulations to agents or
delegates effaces itself. That is
not so. It retains its powers in-
tact, and can, whenever it jileases,
destroy the agency it has created
and set up another, or take the
matter directly into its own hands.
How far it shall seek the aid of
sul)ordinate ager.eies, and how long
it shall continue them, are matters
for each legislature, and not for
courts of law, to decide.

"Their Lordships do not think
it necessu'y to piirsue this sub-
ject further, save to add that, if
bye-laws or resolutions are war-
ranted, [)Ower to enforce them
seems necessary and equally law-
ful. Their Lordships have now dis-
posed of the real questions in the
cau.se.

" Many other objections were
raised on the j)art of the a|)i)ellant
as to the mode in which the License
Commissioners exercised the autho-
rity conferred on them, some of
which do not apjiear to have been
raised in the court below, and
others were disposed of in the
course of the argument, their Lord-
ships being clearly of ojtinion that
the resolutions were merely in the
nature of munici|>al or i)olice regu-
lations in relation to licen.sed houses,
and interfering with lilx^rty of
action to the extent only that was
necessary to prevent disorder and
the abuses of licpuir licenses. Uiit
it was contended that the pro-

B.N.A. ACT, s. 92 (9).— Ml^NICIPAL COUNCILS. 143

\ inciiil lef^islatnre had no |)ower to
impose imin'isonmoiit orhfiril liiboiir
for broac'li of iiowly-crcMtfd rules
or Inn-laws, and could conftsr no
mitliority to do so. The argument
was i)i'inci|)ally directed a<;ainst
hard labour. It is not unworthy
of observation that this [)oint, as to
the power to impose hard labour,
was not raised on the rule nisi for
the certiorari, nor is it to be found
amongst th(^ reasons against the
apijcal to the A])i)ellate Co>irt in
( )ntario.

"It seeins to have been either
overlooked or advisedly omitted.

" If, as their Lordships have de-
cided, the subjects of legislation
come within the powers of the pro-
vincial legislature, then No. 1") of
sec. !)2 of the Eritish Noith
America Act, which jn-ovides for
'the imposition of ])iuiishment by
tine, penalty, or imprisonment, for
enforcing any law of the jn'ovince
made in relation to any matter
coming within any of the classes
of subjt^cts enumerated in this
section,' is applicable to the case
before us, and is not in conflict
with No. 27 of .sec. 91 ; under
these very general terms, ' the im-
position of puni.'ihment by im|)rison-
iiient for enforcing any hiw,' it
seems to their Lordships that there
is imported an authority to add to
the confinement or restraint in
])nson that which is generally in-
cident to it, — ' hard labour ' ; in
other word.s, that * imju'lsoinnent '
tlieri! means restraint oy confine-
ment in a prison, with or without
its usual accompaniment, 'hard

illllOlU'.'

" The provincial legislatin'e hav-
ing thus the authority to impose
imprisonment, with or without hard
lahoiu', had also power to delegate
siniiliu' authority to the nuuiicipal
body which it "created, culled the
License Commissioners.

*' It is siu<l, however, that the legis-
latnre did not delegate such powers
to the License Connnissioners, and
that therefore the resolution im-
posing hard labour is void for

excess. It seems to their Lordships fc '^'Bti. Thk
that this objection is . ■> well ftut.iSN.
founded.

" In the first place, by sec. 5 of
the Liquor License A<'t, the Com-
missioners may ini])ose penalties.
Whether the wonl ' penalty ' is
well adapted to include imprison-
ment may l)e questioned, but in
this Act it is so used, for sec. 52
inipo.ses on offend:'rs against the
provisions of sec. 43 a [wnalty of
20 dollars or fifteen days' imprison-
ment, and for u fourth offence a
penalty of imprisonment with hard
labour only. ' Penalty ' here seems
to be used in its wider .sen.se as
e([uivalent to punishment. It is
observable that in sec. 59, where
recovery of penalties is dealt with,
tlu! Act speaks of ' penalties in
money.' But, supjrasing that the
' penalty ' is to 1h' confined to
pecuniary penalties, those penalties
may, by .sec. 70, Ix? recovered and
enforced in the manner, and to the
extent, that bye-laws of municii)al
councils may be enforced under the
authority of the Mnnici[)al Act.
The word ' recover ' is an apt word
for pecuniary remeilies, and the
word 'enforce' for remedies against
the person.

" Turning to the Municipal Act,
we find that, by sec. 454, muni-
cipal councils may puss bye-laws
for inficting reu.sonable fines and
lienalties for the breach of any bye-
laws, and for inflicting reasonable
punishment by imprisonment, with
or without hard labour, for the
breach of any bye-laws in case the
fine cannot Ik- recovere<l. By .sees.
400 to 402 it is provided that fines
and penalties may Ih" recovered and
enforced by smnmary conviction
before a justice of the peace, and
that, where the pro.secution is for
an offence against a munici|)al bye-
law, the justice may award the
whole or such part of the penalty
or punishment imposed by tlie bye-
hiw as he thinks fit ; and that, if
there is no distress found out of
which a pecuniary penalty cun 1)6
levietl, the justice may commit the

i ii

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ri i

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■

if ill:

1)1

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144

B.N. A. ACT, s. 92 (9).— COMPARING AOTS.

UUEKN.

HoDGK V, The offender to prison for the term, or
.some part thereof, specified in the
hye-law. If tlie.se hye-hiws are to
be enforced at idl I)y fine or im-
prisonment, it is neces.siiry tliat
they shonhl specify some amount
of fine and .some term of imprison-
ment.

" The Licpior License Act, tlien,
gives to the Connnissioners eitlier
j)ower to impose a penalty against
the person diiectly, or power to
impose a money penalty, which,
when imposed, may be enforced
according; to sees. 454 and 400-2
of the Municipal Act. In eith"r
case, the Municipal Act must be
read to find tlu^ manner of en-
forcing the penalty, and the extent
to which it may Ije enforced. The
The Governor- ^o^^ reasonable way of construing
Genehai, statutes so framed is to read into

])oMiNioN the later one tlu^ passages of the

V. 'I'liK I'ltuR former which arc referred to. So
ruoviNCEs. reading these two stiitutes, the Com-
missioners ha\-e the .sime power of
enforcing the penalties they impo.se
as the Councils have of enforcing
their bye-laws, whether they can
impose penalties against the person
directly, or only indirectly as the
means of enforcing money penal-
ties. In either case, their reso-
lution nmst, in order to give the
magistrate Jnri.sdiction, .specify the
amount of puni.shment. In either
ca.se, their resolution now under
di.scussion is altogether within the
powers conferred upon them.

" Their Lord.ships do not think
it necessary or useful to advert to
some minor points of discussion,
and are, on the whole, of opinion
that the decision of the Court of
Appeal of Ontario shoidd be
attirnied, and this appeal dismissed,
with costs, and will so Innnbly
advise Her Majesty."

Srvern v. REfi. Held in Sevehn v. Reg., Jan. 28,
1878, 2 S. C. R. 70, that the right
conferred on the Ontario Legis-
lature by sub-sec. 9, sec. 92 of the
B. N. A. Act, <loes not extend to
licens* on l)rewer.s, or " otlier
licensi's " which are not of a local

or nnmicipal character. This was
the ca.se of a brewer who, beiiif:
licen.sed by the Government o!
Canada under 31 Vict. c. 8. (D.)
for the manufacture of fermented
spirituous and other licpiors, sol<l
by wholeside for consumption with-
in the province of Ontario a large
(piantity of said fermented li([U()i\s
so manufactured by him at York-
ville, for consumption within tlie
province of Ontario, without Aral
obtaining a shop license or a liceii.sc
under the Ontario Act, 37 Vict.
c. 32., and amending Act, and it
was there hehl the I'ights given by
su])-.sec. 9 of sec. 92 did not ex-
tend to licenses on brewers. Rut
see tliseussion in the next case.

In the case of the Dominion
Liquor Licen.se Act.s, 1883-1, lO
Viet. c. 30., and 47 Vict. c. 32.,
Goveknok-Genekal Dominion r.
The Foi'R Provinces, a special
clau.se (26) was in.serted in the
latter Act enabling the matter
to be referred on petition of tlu
Governor-General, with the advice
of his Privy Council, to the Su-
preme Court [sec now Supreim'
Court Act, 1891, 54 & 55 Vict.
0. 25. s. 4, alluded to post, sec
101], and to be further refernd
it Her Majesty saw fit to the
Privy Council in England for
final determination. The Supreme
Couit heard The Governor-Gene-
ral Dominion v. The Four Pro-
vinces, and, giving no forninl
rea.sons, certified that, with the
exception of two sets of pro-
visions, namely, those relating to
wholesale and vessel licen.ses, tlic
LiquorLicen.se Acts, 1883-4, were
ultra vires. The following argu-
ment in this case is taken from
the transcript of the shorthand
notes, kindly lent to me b;.
Messrs. Freshfields and Williams,
and I have also verified the.se not(s
with the jirinted copy in the I'rivv
Council Office. Of course the
argument is not given rerhnlim

[Cafillfr li,

jtliiit the
Isliouid
^I'uniiioi

S 2

H.\.A. ACT, s. 92 (9).— LIQI'OR ACTS, 1HH3-4.

(omiinon

53-1, U)

t. V. 32.,

UNION r.

a special

1 in till'

e mattiT

in of till

he iulviec
the, 8ii-
Suprdiif
55 Vk't.

post, sec.
ret'ei'i'cil

to till'

land foi'
Sniireinc
nor-Geno-
'onr Pro-
formal
with tlu'
of pvo-
■elnting tn
enses, the
■i3-4, were
g nrgii-
il;en hm\
shortliiw"!
me Ity
William**,
these notrs
the Trivv
course thu

licre. iillhoiigli it is in the Hliort-
haiiil iKitfs, Lord Hcrsclicli, Ij.C,
iiiid Lord Davey ha\<' kindly rt'iid
tiif ar;;iiiuciifs over.

Sir F. Hersclifll,Q.C (now, .fnne
l.si)"). Lord (Miani't'llor) (witli him
Bnrlmlgf, C^.C, of the Ciinadiiui
Mar) and .Icunc (ajifcnts, Bomixis,
IJi-ciioH', Dodgson, und ("oxc) were
jicanl lor llic Dominion.

Davcv, (^.C. (now liord Davey),
and Haldanc (with them Fniser.
Q.tV, and i{ii<r<rles Church, Q.C.,
both of the Canadian Bar), (agents,
Frcshfieids and Williams) were
heard lor tiic Four I'roviiiees —
Oiitarii), (Juchce. No\ a Scotia, and
Vcw Hrmiswick.

11 and \'2 Nov. ISS'). rreseni,
Lord Halshury, L.C., and Lords
Fit/.jrcrald, Monkswell, Hohhonse ;
and Sir Montaj^ue K. Snnth, Sir
Barnes I'eaeock, and Sir l{ichard
C'oncii.

SirFarrerHerschcll,Q.C.: "The
Canada Temi)erance Act of 1H7S
was to enahle localities thronghont
Canada, in any pai't wheiv they
pleased, to prolnhit the sale of in-
toxiciiting li(|n()i's. It empowered
tlie localities in any |)art of the
Diiniiinon to prolnhit the sale of
intoxicating li(piors, subject to cer-
tain exceptions, where they nd^ht
he rc(|inred for pin'jiose oi' nu'di-
cine or sici'aniental purposes. 'I'he
Act was hidught into force not hy
the nnmicipal authoi'ities, hut hy a
vote of the city or of the eoinity of
a hare majority— a vote taken for
the piu'pose hy the same per.sons as
wo\dd vote for a mendier of Parlia-
ment. The will of the localities
was to he expressed hy tliese votes.
Those counties that did not ndojit
it were left outside it altogether.
It might he adopted partiv in a
province. This Act enabled total
prohibition. The nreand)le of the
Li(pior Licensing Act of 1HH3 was:
I 'Whereas it is desirable to regu-
late the traffic in the sale of intoxi-
cating li(|uors, and it is expedient
itliat the law resjieeting the same
jsliould be uniform throughout the
'onunion, and that provision should

S 2340.

be made in regard thereto for the Govebnor-
better preserxation of peace and y™'"**!,
oi-der: Iheretore Her Majesty, by ^, ,^,„j, j,,^^,^
and with the eon.sent of the .Senate Provincks.
and House of Connnons of Canada,
I'uacls as follows ; — ' Then thei'e
is the title, ' An Act respecting the
sale of intoxicating litpiors and the
issue of licenses therefor.' This
Act, like the last, dealt with the
whole Dominion, but it woidd
(ijierate in those parts in which the
former Act had not been taken
advantage of, in which there was
not total prohibition. Under this
Act power was given to issue
licenses by the (ioverinnent of the
l)onHiHon,and no person was to lie
allowed to deal in intoxicating
lienors who had not one such
license. Thei'e were \ arious classes
of licenses — Hotel licenses. Saloon
licenses, Wholesale licenses, and
\'ess(d licenses. Hnt one or other
fif these licenses each person innst
ha\e who <lesired to deal in intoxi-
cating li(piors in any part of the
Dominion. There are provisions
accordingly which will lindt in the
various areas the nimdiei'of licenses
that ai'e to be granted, so that in
those parts of Canada which had
not taken advantage of the Act of
total e ohibition, the intention was
to regulate the tratlie by dinnnish-
ing the mnuber of per.sons who
were at liberty to deal in the arti-
cles, and the Act ci'eated a Boai'd
of Conninssioiu'rs. Sec. 0 creates
inspectors of licenses, appointed by
the Board of Connnissioners. See.
7 provided for the licenses. ' The
Governor in Coinieil may direct
the issue of licenses on stamped
paper, written or printed, or partly
written and partly printed, of the
.several kinds or descrii)tion follow-
ing, that is to say, — Hotel licenses;
Saloon licenses ; Shop licenses ;
Vessel licenses; Wludesale licenses.'
"Sec. 7, sidi-.sec. (n), is, 'An
hotel license or saloon license
shall authorize the licensee to sell
and dispose of any li<piors in <)uan-
tities not exceeding one ipiart,
which niav be drnnk in the hotel

n I'

I ' i!

m \

(iovEjixon-
Genebal
Dominion
V. The Four
Provinces.

14«

B.N.A. A(!T, s 92 (0).— LlCiUOH AXU EXPLOSIVES.

or saloon in which the smuk' is sold.
{f}) A 'Shop license ' shall authorize
the licensee to sell and dispose of
any lifpiors not to he dnink in or
upon the premises for which the
license is granted, ])rovi(le(l that not
less in quantity than one ])int shall
]»e sold or disposed of at any one
time to any one person.' The
lirsl is a license to be drunk on the
premises, and the shop license is a
license to he drunk off the premises.
Then a ' Ves.sel license ' shall autho-
rize the master of the vessel to sell
to any passenger on board. ' A
Wholesale license shall authorize the
licensee to sell and dispo.se of
licpiors in his wan'house, store,
shop, or place defined in the license
in quantities of not less than two
gallons in each cask or vessel ; and
in any case when such selling by
wholesale is in respect of bottled
ale, porter, beer, wine, or other
fermented or spirituous liquor, each
such sale shall he in quantities of
not less than one dozen reputed
(|uart bottles: liquors sold under
a wholesale license are not to be
consumed in, or upon the house or
l)remises in respect of which the
liceu.«e is granted.' N'otwithstand-
ing this license, the local legislature
may also impose a tax on the sale.
Ml that there might be double
licenses. [Sir Montague Smith :
I'pon this question of revenue, just
to clear it up ; there is a provision
that the surplus is to be paid o\er
to the proviiK.'ial legislature.] Sir
Farrer Herschell : Yes. [Sir Mon-
tague Smith : Then the Dominion
assumes to tax the i)roviuces for
their own benefit.] The license fee
is only 5 dollars and 10 dollars.
The intention is to make a fee
which shall cover the expenses.

" There were cei'tain principles
which have been athrmed and re-
affirmed, which the Board would
probably not think it desirable to
depart from. It has l)een laid
down in more than one case, that
for determining the question whe-
ther any matter is a matter within
the exclusive jurisdiction of the

])rovince, the proper course is first
to look at sec. 92 to see whether if
comes within any of the clauses
enumerated there. And if it does
not, then there is an end to the
contention that it is within the (Ex-
clusive legislature of the pro-.incc,
But even if it is found in sec. i)2,
then you must look to .sec. 91 anil
see whether you find it in sec. !)1,
because if it lie in see. 91, then <i)
far sec. 91 overrides and liiuitn
sec. 92. Bussell r. The Queen [see
tifwvr] raised the validity of tlie
Canada Temjierance Act, ISJS,
That i.j-pears to bea disiinet aiitlid-
rity tliat the fact that the iegisln.
tion is such as would diniinisb
revenue by ])reventing money licin;^
received for licenses which dnwii
to that time had been I'cceived, is
not a groiuid for contending it is
not within the powers of the
Dominion Parliament. Suppose
the carrying of arms was prohibited,
in a time of y )lic danger, b\ iuiy
person not ' ing a license from
the Dominion GoveriuneiU, tlie
fact that the provincial government
had the power to say ' Eveiyliodv
who carries a gun shall pay us
10 dollars a yeai' to hel[) oui' revc
nue' ihat could not prevent the Do
minion Parliament .saying *E\en-
l)()dy who carries a gun, whether
he has a [)rovincial licen.se or not,
shall for the safety of the cuiii-
munity obtain a license IVoni the
Governor-General.' If the Ciiim-
dian Tenqierance Act, as a general
icgulation of the tralRc in intoxi-
cating li(|uors throughout the Do-
minion, falls within the cliiss cif
subjects, ' The regulation ol' tiiuli'
and commerce,' see. 91, it .Iocs r.nt
matter whether it comes withiii
sec. 92 or not. There is no dis-
tinction in principle between
IJnssell r. The Queen an<l tlii.'^eiise
Both deal with intemperance ii-
being an evil affecting the whole
Dominion. [Sir Montague Siiiitli:
The ratio decidendi of that easel'
that it is not within any pni't o(
see. 92.] The difficulty iii viewiii?
this Act in the same light its tlif

Hii

St.
isle
thill

hiSV

Miaft

Won

i'nri

peic

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mini

>ani(

Wliic

oft I,
it as
'"I

B.X.A. ACT, s. 92 (9) —DOM. * PKOV. AS OCCT^PIEH. 1 I"

is first
A\\cv it
clauses

it (Iocs
. to \\w

the px-
ivo-.iin'c.

sec. '.V2,
. 9\ mill
I sw, 91,

, tlK'll -^11

1(1 lii\iits
uei'ii {see

V of tllL'

ct, 1H7H.
net iiutlin-
le iigi-lii-
climiuisli
oiU'V ln'iii;;
liicll down
i-t'ceivt'il, is
>n(li»S' '' '^
srs t>t' '^'^'
Siiiil>i>se

i pvoliiltitetl.
inrer, !•> i>"y
ii" eiisf from
■mm'ut, the
oovprnment
~Everyl)0(ly

iiiiU piiy »*

i-lp our V(»vf-

Act nii^lfr consideration in llnsscirs
Hrises from the macliinery of the
Icfisliition iisdistin;j;nislie(l from the
jjiu'j'.isc Mild oliject of the Icf^isin-
tion. Tlic iiiachinerv of tliis l('<?is-
lation (if liniit4ition and restriction
is carried out by means of a license,
Imt the license is only part of the
niiicliiiiery for carryinj;^ out the ob-
ject of tlie Act, and is not part of
the object of tiie Act, wliicli is to
restrict the number of public
liouses. Tiie {giving of a license by
a local body might be for the ptir-

of raising revenue, an act

which in one aspect of it might be
within see. 92, and in another
aspect wi*' 'ii sec. 91, and it may
lie that I, iirovineial legislature
would liave power to legislate with
regard to certain cases ainsing within
tile province, even although it was a
matter in which tiie Dominion might
legisiiite for the whole Dominion.
'I'lie judges of tiie Supreme Court
ga\c no judgment, but it was said
(luring the argument the view they
took would have been different, but
tliat they understood that The Queen
r. Hodge [see abovcl modifled
Kussell V. The Queen [see ahnve'\.
But see Earl Selborne in L'Union
St. Jaerpics De Montreal v. Bel-
isle [see ante, p. 15]. showing
that you might have a provincial
law properly dealing with a local
matter luider sec. 92, and that
woidd not exchuh' the Dominion
I'arliameiit, or establish its ineom-
lieteney, to make a general law to
lirevftil throughout the whole Do-
minion which should deal with the
same matter, and so limit the right
which would otherwise ha\e existed
of tlie lix'al parliament to deal with
It as a local matter as it pleased.

" The opinion expressed is, if the
Dominion Parliament had dealt
generally with all such bodies,
bringing them within the law of
bankruptcy and insolvency, that
then it would not have been compe-
tent to the provincial legislatures to
take a particular body of that law
and say, ' We do that because this is
a local matter.' It may well l)e

tliat where the Dominion Parlia- Governob-
meiit has not dealt with certain General
subiect-matters, it uiight be within ^^om'^'O"
the competency ot the ju'ovincial Provinces.
parliament to deal with them, and
yet that it might be f)j)en to the
J)()minion Parliament to make u
general law relating to the same
subject-matter dealing with the
whole of tlui Dominion, which
would override what had Ik-cu
otherwise done. [Lord Monkswell :
It is intimated in that case, if the
Dominion Parliameiii had occupied
the gi'ound before, then the local
government could not occupy it.
Hut suppo.se the local government
lirst occupied the ground ?] It does
not depend on which is first or last
because if the Dominion can deal
with it at all, it is not a matter
(•.\clusi\('ly committed to the pro-
\incial legislature. [Lord Plonks-
well : It would follow if the Do-
minion Parliament could by a
general law exclude the local par-
liament from dealing with the
matter, it could, after the local [lar-
liament had di^alt with it, make it
nil 1 and void ] Because the
jiowers of the Dominion Parliament
are unlimited, except so far as
I'.atters have been exclusively given
to the provinces. The next case is
Hodge V. The Queen [see above'].
[Sir Barnes Peacock : I think it
is a mistake to say I delivered
that judgment. I was jiresent,
but Lord Fitzgerald d(di\cred the
judgment.] That ca.se does not
])urpoi't to limit in any way
T?u.ssell *• The Queen [see afiore].
ft accejits it, but holds that the
decision in rpiestion was in no way
inconsistent with it Therefore,
Hodge r. 'IMie (^ueen cannot be
taken to have decided that the
liquor traflic in each province is so
exclusively committed to the legis-
lature of the i)ro\ince as that the
Dominion Parliament cannot deal
with it. All that it .seems to decide
is that, so far as it does not conflict
with any general law made in re-
lation to the litpior traffic by the
Dominion Parliament, it is com-

K 2

■PB

ViV '-l'^

OOVF.HNOH-
(iENKKAt,

Dominion
V. Ti:e FotR

I'llOVINCEK.

118

BN.A. ACT, X. 92 (J)).— WlirrH PREVAILS.

[iptent in oncli pi'oviiicc to innko
lociil rcfiuliitiniis lis to tli<' niiinner
ill wliicli liiisiiiPHS sliiill he loniily
coiuliictfd. [Lord Halsbnrv, L.C. :
Sn|>j)osp tlipy ileiil with it iiR'on-
sistt'iitly ?] Tlieii tin- Dominion
MarliaUH'iit iiroviiiis. [ Loril FTnls-
liiiiT, L.C ; Siipjiosc pi'oviiiciiil
rcjjnliitioiis tiliowod only twchc
piililic lioiist'S in a partivnlnr dis-
trict, mid tiie wordiiiw ol' tho Do-
minion Act allowed less or twice
iis iiiiiny ?] Hnssell /•. The Queen
decides that the Dominion must
prevail, lieeause in Ontario the
local legislatnre had said any |)er-
son nj) to a certain iiiiniV)er may
obtain licenses ; then came the
Dominion statute, which allowed
nobody, v.hether licensed or not,
to carry on the trafWc, and that
was held as <jood law. It applied
to this very case, because what was
lieing considei'ed in Hodge r. The
Queen was an Act of Ontario of
1877, and the Canada Teinpeiaiice
Act was an Act of the followiii<j;
yeai', 1H7H, and, therefore, when
the Board held the Canada Tem-
l)erance Act to be good, this Board
held it did override the liquor
leijislation of the province of On-
tario passed in 1877. [Sir Mon-
tague Smith : Yon must look at
■very Act to see what is the scope
anil object and [lurpose of it. The
distinction between the Act in
Russell V. The Queen and the Act
here in question is that that in
Rus.sell V. Tiie Queen was a pro-
hibitive Act applying to the wliole
of the Dominion regardless of what
had been done, an<l piohibiting
the liquor traffic ; the (juestion is,
whether this is not regulating in
»'ach province the local traffic.
This Act is not really to prohibit,
but to limit, not to prevent the
liquor traffic, but to i-egulate it.
To my mind there is a distinction
between the two Acts.] There
may be a distinction. But if
Russell »'. The Queen is as good
law as Hodge v. The Queen, the
latter case cannot mean that the
Dominion Parliament cannot |)ass

laws dealing with the lirpior trattic
inconsistent with and ovcrridinj;
the local laws. All that had ..i be
decided in Hodge /•. The Quei-n
was whether a local Act which
gave the Conimissiniicrs power to
make regulations, one of which
regulations related to the [)laying
of billiards in liciMised houses, was
to that extent valid. The qnestiou
did not arise wliether the Dominion
Act could have oxerridden that. No
doubt the wider (piestion was de-
cided by that ease, that the Act
was within the competence of the
|)ro\incial legislature. [Sir Hariies
Peacock : It was a local law, ami
one could su[)pose it was good not-
withstanding that it was for the
' peace, order, and good govern-
ment of Upper Canada'; but it
would not be void because of the
general |)rovisions giving power to
the Dominion Parliament to lej^is-
late for the ' peace, order, and
good government ' of Canada as eiii-
liracing the whole of the provinces.
'I'herefore, you could not say
that if it was of a purely local
nature it was not void as inter-
fering with the general power of
the l)ominii)ii; but then that law
did not exclude the general jjowcr
of the Dominion to legislate when
they wanted a similar law extend-
ing over all the provinces.] Your
Lordships held in Rus.sell r. The
Queen that the Canadian Temper-
ance Act of 1878 did in any par-
ticular county or city enable tliat
county or city, by virtue of soiiie-
tliing entirely outside the proviiiciid
legislature, to set a.side what the
jirovineial legislature had enacted.
[Sir Barnes Peacock : Suppose a
license for Upi)er Canada. Sup[)ose
in Lower Canada they refused to
pass a license law, and that there
was drunkenness and all kinds of
niischii'f going on in Lower Can-
ada— coukl not the Dominion say,
notwithstanding that Lower Can-
ada does not choose to i)ass a law
similar to LTpper Canada, we will
legislate for Lower Canada ? Tliov
could legislate for Lower Caiiailii

B.N.A. AtT, s iH2 (!)).— IMHSON'S CASE KXAIMIXKI). 110

IIS |iiii't of lilt' wliuli' Doiiiinioii,
iiiiil tlicit't'orc llifv roiiltl |)iiss gi
law ii|)|ili('al)l(' to tin- whole Do-
minion similiir to tlint whit-li On-
tario litul i)assf(l lor itself, sceiiijj
that tht'iv would !«■ peiiw ami
{{00(1 oimUt in Ontario luitler that
law, and drunkenness and all sorts
of mischief lioinji on in the adjoin-
iiiji |iro\inee, had not the Dominion
then power to sav we will jtass a
law for the ' peiice, order, and f^ood
<;(i\crnnient ' of the whole of C'an-
a(hi, ineliidin<>; all the |iro\ inees, and
we will pass a law which will in-
clude (^nehee as well as Ontario. J
That is our content ion. Now in The
Citizens' Insuraiu.'c (.'o. i\ Parsons
[.IPC suli-.sec. 13, .see. !)2], the (|ues-
tion was the validity of a law
passed In' the province of Ontario
(icalinj; with policies of insurance
cntcivd into or in force in the
province of Ontario for insuring-
property situated therein against
tire, and it prescribed certain con-
ditions which were to form part of
such contracts, and the (pie.stion
was whethei' it was an Act the
local legislature had power to pass;
or whether it was an Act ' regu-
iating trade and eonnnerec ' which
they had no powei' to pa.ss. Se-
coiidly, was it inconsistent with an
Act of the Donnnion Parliament
which retpiired all insp.rance com-
(lanies, whether incoi[torated hy
Doniinit)n or provincial authority,
to ohtain a license to Iw granted
only u[)on eomi)liaat'e with the
Act ? It was a case in which the
Dominion had legislated with re-
jiiwd to all insurance companies
thioiighout the Dominion. It was
argued the provincial Act was
iiltni rircs hecause it was a matter
ivlating to 'trade and commerce.'
it was held it was not. Thai
the creation of certain im|>lied con-
ditions in that particular province,
.iiiil relating to the property in that
province, was a matter dealing with
civil rights in that province, and
was not a matter overborne by the
lirovisions as to the regulation of
"trade and ooinmeree.'

" ITnfortiinately, in the judgmcid
there, in dealing with the words
* regulation of trade and commerce,'
it was .said : ' It mai/ lie they
woidd include general regulations
of trade affecting the whole Do-
minion.' So what is of very con-
siderable importance in this ca.se
was left undecided. Tlie question
thcrv was, whether the whole matter
being within sec. 92, it was over-
ridden by sec. 91 In that case;
C'ushing v. Du|)uy was referred to.

" Xow, considering the two sec-
tions, 91 and 92, and, first, whether
this is legislation e.\clnsiv(dy I'on-
fei'rcd on the |irovincial legislatine.
Its aim and object, obviously, is
the promotion of temperance and
the checking of the evils of intem-
perance throtighout the Donnnion.
It se(dcs to accom|)li.sh that object in
tho.se districts which were not pre-
pared absolutely to ])rohibit the
sale of intoxicating licpiors. In-
limiting the extent of their .sjde, l)y
limiting the nund)erof places where
they could be .sold, and also 1)V en-
abling smaller districts than tho.se
whicii weie dealt with by the Act
Of' 1H7S to effect that prohibition
within their area which, under the
Act of 187H. larger di.stricts could
effect. Such an Act a]iplying to
the Donnnion thi'oughout, and
having such an object, is not with-
in any of the sub-.sectious of .sec.
92. If it is to be found in any of
them, it is overridden by the pro-
visions of sec. 91 It has lieen
decided that sec. 92 does not ex-
clusively comnnt to the provincial
legi.shitnres all the regidations and
limitations of the liquoi- frailic in
their provinces. Kus.sell r The
Queen. I .shall contend there is
no distinction between an Act
having the same ultimate object
which enables or com|>els restric-
tion and limitation; that in each
case the purpose and object is the
promotion of temperance, and the
consequent re[)ressiou within the
Dominion of the evils which in-
temperance causes ; that there is no
distinction for that purpose hc-

Odvkumik-

•iKNEUAL
JJoMINIOS

V. The Four
I'hovinces.

p \

(tOVERNOB-

Oenerai

I'. The I'orii
Ptiovincer.

f : w r

i I

; .

150

B.N.A. ACT, s. 92 (0).— I'UKVIOLS POVVKRS.

twppii prohibition mid liinitiilinn
wlifii yoii lire considcriiijf sec. 02.

" It WHS rciicil on in the i-oiirt tic-
low tlint snli-scf. H, sec. i)2, a;i|ili-
•'fl. But if ' iniMiiciiial iiistif iitioiis '
iMiJililcs till' csliililislnnciit liy flic
local Ic^rislatiircor iiiunicijial liodics
witli some powers, it docs not
mean von can jfivc tliciii every
power wliieli lia\e ever liecii exer-
cised Itv niniiicipal liodics in Can-
ada. 'I'iic ai'.Linniciit in the court
lielow was that y<in liiid sonic of
the innnicijHil liodics in sdiiic of the
pnninces liefore the Dominion Act
hinc dealt with this ipicstion of
liipior trathc, therefore, when tluw
were fri\(.|i e\clnsi\e power In
make laws in relation to iiinnici[ial
institutions, that gave them the
potver exclusively to make these
liipior laws. But the very olijeet
of the Dominion Act was to take
away from the provincial legisla-
tin'c some of the powers which
they had liefore possessed, and to
eonfir those powi'rs on the central
authority. And, therefore, to say
they had all the power of legislation
which liefoi'c they could exercise
through their municipal bodies is
an argument which cannot stand.
[Lord Halsbury, L.(^ : I .should
have thought it meant to create
them ; how many they were to con-
sist of; and how they were to be
elected. That cannot touch this
case.]

" 'riie power of exclusi\(' legisla-
tion in relation to sub-see. !) is
not a general [lower of granting
shop, saloon, tasern, auctioneer, and
other licenses, but only to the
raising of a revenue for provincial,
local, or nuuiici[ial pnrpo.ses. [Lord
^lonkswell : You uncierstand by
that that all they could do would
be to enact that a keeper of a
saloon .should have a license if he
applied for it ; that they could not
give any power to discriminate as
to the class of saloon, nor make a
regulation that a sober publi-
can should have a license, and a
drunken publican .should not have
a license.] Xot under the 9th sub-

section. They are not intended to
deal with the matter asa regiilatimi
of the trade, and that is why the
words ai'e added, 'In order to tlic
raising of a revenue.' It would be
a \fry grave (piestioii whether in
Ufencral law lieensiii"' ti'adcs woiiM
not come within ' regulation of trade
and eommeree,' which it was not in-
tended should be dealt with by the
separate provincial legislatui'es Tlic
words used are vcrv stroii";, I'eid-
ing, as you must, the legislative
part with it. ' Fn each province
the Icj^islature niav e.xclusivelv
make laws in relation to sho[i, i*^c.,
in order to lla "aising of a revenue
for provincial, local, or muniei|iiil
purposes.' It is only in order to do
that, that ihcy have any power con-
fided to them of exi'lnsively making
laws in relation to .shops, .saloons,
anil taverns; that points to the view
that general interference with these
matters was not a matter exclu-
sively given to the provincial legis-
latures, because it was a triidc
matter intended to be left to the Do-
minion. [Lord Monkswell : t'oiili!
not the provincial legislature dcliiic
the description of a shop which
should havealicenseandanotherthiil
should not ?] They might do it for
the purpo.se of I'aising a I'evemic,
[Sir Richard Conch : They miglil
.say that a shop I'atcd at a certain
amount should have a license.]
Yes, and if they rcipiircd the name
of the propiietor should be painlcd
above the doorway as a security i'nr
the payment of revenue, no donbt
they could do it. [Lord Halsbiny,
L.(,'. : Then it goes to exelndiii;;
from the provinces any jurisdictimi
in this matter at all except for tlic
purpose of reveniu'.] Xo, becansr
in Hodge v. the Queen they (Nil
not hold the power came und(>r the
9th sub-sec, but under the 8th, ISlli,
16th — 15 being merely the imposi-
tion of penalties for carrying out any
of the others. Then it is eerliiiii
10, 11, 12 would not be material.
Now I apprehend the .sa'e of intoxi-
cating liquors and its restrietinn
an<l control is not a mailer of 'pie-

n.V.A. A(T, M. 92 (0).— rMI'KACKINU DOM. AC'I'. 151

porty or civil lij^lils' witiiin llic
inciiiiiiiif (>r siil>-st'c. l.'{. To prohibit
H iniiii t'ldiii sfliiiij; <foo(l,s limy affect
|ii(jlii'rty ; l{ns-icll /•. Tlii^ (^iiccii. IT
iliiii ciisc i^ ii;:;lit, it cannot lie that
mIisoIiiIc |)rohll)itioii is not a matter
iiilciiViiii;; with ' property and
civil lij^lits'; lait tliat limitation
i> II iiiiilter that does.

"Those who iiii|ieacli this Act ol'
the Douiiiiion must not only show
lliiil it comes within sec. !I12, lint
tliiit it is not within sec. 91. [Lord
iriil-liury, li.(". : Take tile case ol'
' Miiiriii^c anil Divorce,' siili-sec.
lit), Ml', '.tl, and the ' Soiemnj/ation
III' Miiniage,' siih-scc, 12, sec. !)2. |

■ Minii;ij;e and Divorce' in .sec.
()1 wiiiild clearly override the

■ Soluiiniizulion of Marriage,' sec.
O'J, except so far as related to tiie
Hilciiiiii/.ation of niarriaj;c. if tliere
i-^ iiiiy inconsistency hetween .see.
02 iiial sec. i)l, the latli'r section
iiveridile t\w former, tor it says : ' It
i-; liiii'hy declared tliat notwith-
>liiiuliM"- aiivthiiiir in this Act ' —
iliiit n\\\>\ inehiile the words in sec.
I'2 — Mile exclusive lej^islativc ati-
llmrily iif the J'arlianicnt of Canada
cxleiiils to all matters comin;.!; with-
in the class of siihjects next Iierein-
iiflii' eiiiuiierated. Then we place
ivliiiiici' 1,11 suli-sec, 2, .see. 91. Yon

laws for the

jieacc,

jrood govrrnnient of

limy make
iiriler. and

Caiiiiilii 'in leyiilatioii of tradi'
mill loiiiiuoice,' and this is a matter
vvliieli comes distinctly within that
siih-*c. 2 of sec. 91. And it is
only in that way that you can
mulcr^itaiid the 'Supreme Court
holding that those provisions of
this Act which have relation to
wholi'sil,. licen.ses were within the
coiii|icteiicy of the Dominion Par-
'i'liiii'Mt, althonjih it relates to
all tlie pi-oviiices and contains
Mipiiliitioiis takiiijr ,.£ft.i.t in ,ill.
'I'he Act is held valid as to whole-
Nile licenses and not with regard to
tlie retail trade, hut to say the
legisliitive power of the Dominion
larliaiiienl extends to wholesale
iind not to retail is a distinction
which does not Hnd any warrant

in sec. 91, and it would Ix^ imprac- Ohvehvob-

ticalilc in its working. Tliev have Q^•''E"*''
ill 1 .1 i 1- ■ 1 Dominion

held also that licensing Ncssels j, .^-^^^ Yovu

comes also within the power of the PunviNcRS.
Dominion Parliament, prolmhly
putting it under the lOtli siih-sec,
• Xuvigiition and Shipping.' Cer-
tainly, to .say that a liipior law
passed with such an oliject as pro-
moting temperance can he main-
tained in respect of a vessel,
although that vessel's trading is en-
tirely provincial, and entii-ely with-
in one province; and that yon may
not restrict the sale of liipior in
hnildiiigs in the province, appears a
distinction veiy difticnlt to follow.
It wa.s not necessary for the decision
of this case to contend that the
regulation of trade or commerce
had so wide an effect that every
regulation of trade and commerce,
however local and limited in its
operation and scope, would come
within these words, hut that it
would he eiifiiigh to show a power
in thi> Dominion I^irliamenl to
regulate any and eviu'y trade where
the object and |iui'pose of that
regulation was the peace, order,
and <;'ood government of the Do-
minion at large. Now that is the
power which is in the Dominion
l^irlianient, and it would put all the
decisions on a sound and intelligible
basis. Whatever limitation yon put
upon the regulation of trade anil
cominerce, you ought not to limit it
so as to exclude from the power of
the Dominion Parliament any law
relating to trader or commerce
which it considers necessary for the
' peace, order, and good govern-
ment'of the country. Suppose a
local legislature made a law for a
railway where it passed through a
town, such limitation being limited
to the safety of the town or a part
of it, ami yet the general legislation
as to the railway would be left
throughout the whole Dominion to
the Dominion Parliament. One
might put cases in which a matter
might in one respect be a merely
local matter, and which in another
aspect might Ix' a matter of general

', I

Hrf;

OoVKIINOII-

Oknkkai.
Dominion
I'. 'I'lIK I'oDIl

Provinces.

ir)2

UNA. ACT, s. 02 (!)).— 1)1 KKcr TAXATION.

Iiiilicy mill of ilil|)iil'tlllli'(' to tlir
wholt! ('(iiiiitry. Tlicri- iiiiiy Itc a
nniiiii'ijial rt'^^iilalioii llial noliody
shall sell anus witliniil a lirciiso
froiii till' lural aiilliDi'ily. Sii|i|insi'
tlir Doiiiiiiiiiii (ioM'i'iiiiiiMil liiiiiks
it so iiiii)iii'tarit I'm' tlir salVty ol' tlu'
coiiiiti'v to limit till' list' mill pos-
si'ssioii of lire arms that it says
iioliDily shall si-ll arms without a
liri'lisi' iiliiirl' ihr liallil of till'
(iovi'iiioi'-(Ji'iirial, llii'ii ir that ivijii-
lalioii of IIk; trailc in •;iiiis was a
iv<;iilatioii I'oi' the ' pcari', onli'i',
anil oiHiil <j;o\i'i'iimi'iit ' of thu
roiintrv, it woiilil romi' within set'.
IH, snli-sci'. 2. [Sir Moiita^^iU'
Smith : The key to flii' iln-isioii of
llip Snpicinc ("onrl is that tlii-y
think tho Dominion ha\(> ri'o;ulatcil
niinntcly in a sort of local way a
ri'tail ti'ailc] When a rrfrri'nri'
is made to llii' prarr, orili'i', anil
good goNJ'i'ninrnt of Canada, as in
IJns.si'll c. Till' (2"*'''"' ^vhat is
pointi'd at is that tlir si'lii'inc, in-
ti'iition, and piivposi- of thr powri's
foniniitted to tlii' Doniinion GoviTii-
nit'iit were the gt'iu'i'al good goviTii-
inent, so to .speak, of the whole
Dominion, except so far as it had
been exclusively coniniitted lO the
))ro\inees. As to he payment of
the offieials, tho.se that are paid are
paid out of the licen.sc fund, if
enough, and the residue of the fund
is paid hack to the various provinces.
It is not direct taxation under sub-
see. 2, sec, i)2, but e\eii if it were
direct taxation it is for Dominion
purposes, and the Doniinion Par-
liament under sub-sec. 3, sec. 91,
can raise money by 'any mode or
system of taxation.' If it is com-
Jietent to enforce thi.s Act, then it
is competent to raise the necessary
money."

Sir Horace Da\ey, Q.C, for
LieutcMant-Govcrnors of Ontario,
Quebec, Nova Scotia, and New
Brunswick : The Act of 1883 i.s
wholly idtra vires. All the en-
umerated matters in see. 91 are
.suhject to the words ' In relation
to all matters not coming within
the classes of .subjects by this Act

assigned exclusively to the legis-
latures of the proxinces.' Tin
whole section is goM'rned b\ tliosi'
words, and the enunierati'd 'iitirli-
in sec. 91 are only an iliiistraticni
inserted foi' gi'catcr cerlaintv
'I'herefori! if the Dominion I'iu-
liamcnt make regulations for traili'
and coiiimeree, they must umk,.
such regulations as will not iiifriii;;c
n|)oii the exclusive power of legis-
lation over the matters in sec. \)'2.
Now how an- the enumerated siili.
jeets in sec. 91 introduced? ' F.n
greater certainty,' Scv. Ihil lln'
most inipoitant words are tlioM.
above given, ' In all matters,' .^c.
[Sir Montague Smith: There i^
another proviso which is to be icnil
with it.] Yes, the la.st 'Muds ol
the section (91, sub-.sec. 29)—' Ami
any matter coming within anv of
the classes of subjects eiiunieiiiti'il
ill this section shall not be deeiiiod
to come within the class of matti'i>
of a local or private nature coiii-
pri.sed in the eniinieration of tlic
clas.ses of subjects by this Art
assigned exclusively to the legis-
latures of the provinces.' That
means the provinces cannot legis-
late on any of the enumeiiitril
matters, on the \m fence that tlicy
are local. It is also true that tln'
Dominion Parliament cannot legis-
lati! on matters which are iiielinlcil
in sec. 92, on the snggestiuii tlwi
they legislate for the whole (it
Canada. If the matter is i'.v-
chisively assigned to the pro\ iariiil
legislatures by sec. 92, then tlir
Dominion Parliament has no jiiii«
diction to legislate on tho.seniattiT?.
Now the subjects dealt with in iIm'
Dominion Licensing Act, 1HH3, liiivi'
been decided by thi.s Board to full
within sec. 92 : Hodge c. Tin'
(^ueen. That decision was tlml
the Ontario Act — a licensing .Ail
through the means of local lici'ib-
ing hoards invested with the powtr
of passing regulations and issuing
licenses for the regulation of tin'
liquor traflBc — falls within siili
sees. 8 and 16, sec. 92. But tlu'
Dominion Act, 1883, is ideiiliciilin

B.NA. ACT, s. 02 (!)).— rUOV. Sc RITSSRLL'S CASE. 153

iiiiicliiiici'y, 1111(1 tlic iiicaiis l>y wliii'li
thi' ir^iilMlioiis III')' iiilciiilcil to Ix'
ciiM'icil niit,\vitli the Ontiifii) Act ; ill

t'lll't, till' llnill<r|ltSllltlll III' till* ('lllllllill

Ad must liiivt' litid lii't'oi'f liiiii iIm'
Oiitiirin Act, the iiiily difVcrciicc
ill siii>stiiiic(' iM'iii}^ tiiiit tlic /\cl (>r
\Hr<',i lipplics In tlic wllolc of
Cii mil 111, mill I lie Oiitiirio Act, which
WHS ill (iiiestioii in lloiif^e c. 'I'lie
Qiici'li, il|>|tlies ol' eoiii'se only to
the province ol Onlai'io. I'liere-
t'oip the Dominion Act is ulim
riri's, liecaiisf! it is a matter whicli
"(iiiii's within the class of Hiilijects
iiv-ii};!!!'!! liy see. !)'J, to the le<i;is-
liiline of tlie proxinee. If once it
is (lecideil that it is a matt* r con-
iii'i'teil with niimicipal institutions
mill (>r II merely local eharaeler, yon
(III Mill make it Dominion matter
liv piissinj; a fi'eneral Act for the
wlidle province on those "^roniids.
Tlii'ii we do not (piarrel with
Kiissell r. The Queen. Tile de-
cisiiiii there was that the prohibition
(if the li(|ii(ir traffic throiiifhoiit ; he
Ddiiiiiiioii was a inatter whicli \\,i.s
not exclusively assitrneil to liie pro-
viiiciiil li'<iislatnres; (hat it stood
(III exactly the same footiiiji as the;
pioliiliitidii of the sah- of poisons or
Ji;,'iiiiist carryiii";; arms in the in-
terost of piililic safety. But why ?
BcciiMse the prohiliition of the sale
(if poison or the prohiliition of the,
liiliior trallic is not one of the
tliiiijjs exclusively assifiiied to the
|ii(iviiicial le<;islatiires. [Lord
Moiikswi'll : Tlieii it comes to this,
tliiil tlic Dominion (rovermnent
Clin, ill some cases, override the
pidper Icjrisljition of the iirovineial
Ic^^isliilurc. I Loi'd Selliorne says
tliiit it was ])oiMted out in respect
ol tlie siili-:ieetioii as to ' [iroperty
mill civil ii<;hts,' that in many
ciises l('j;isliition, for instance bank-
riiplcy Icji-islation, must override
le^'islation in property and civil
rights. Russell i\ The (^110011 may
lie explained, but certainly it was
not o\crniled by Hodge v. The
Queen. The former case decided
this, that the prohibition of the ,sal(>
"I iiipior or of poisons thronghont

Dominion
''. Tub I'ouK
Provincbs.

the Dominion was not one of ihe <>oveiin(ir.
matters exclusively as.sigred to the '•►-""■'. 11 a 1.
provincial legislaliires by sec. il2.
There was no ipiestion in that case
uboiit tli(^ regulation of the licpior
trallic through the niachinery or by
means of local licensing bodies,
which in l!o(lg(( r. The (^iieen was
decided to c(aiie within mnnicipal
instiliitions. And the objttciion to
this Act of iHH'.i is that niKhu' the
guise of passing a general Act for
the whole of Ciiuada it attempts to
legislate by the creation of local or
mnnicipal licensing bodies, giving
them restricted local jurisdiction.
All the Temperance Act of IH7H did
was to prohibit the sale of li(|uor
except for sacraineiital and medical
purposes, and it provided ma-
I'hincry for carrying that into
effect. Hut that is a totally
different class and charactor of
legislation. In all the cases this
question is asked, Is the character
of the legislation local oi' not?
Does it purport oi' does it affect to
create luniiicipal institutions? Is
not the princi[)le of sec. 92 this —
that as regards all local matters,
police, decency, and order — as re-
gards those matters, each province
is left to legislate for itself. Giv-
ing the full effect to every word in
Russell ('. The Queen, there is
nothing in that case inconsistent
with what was held in Hodge v.
The (.ineeii, that is, that the regu-
lation of the licpior trallic by means
of local licensing bodies, empowered
to pass I'egulations, come within
the class of subjects referred to as
niiinicipal institutions. This legis-
lation is no novelty in Canada.
Hefore the L^nion a large number
of Acts were in force in all tlu;
jirovinces for this very purpose of
regulating the liquor traffic through
the means of the different muni-
cipal bodies in the different pro-
vinces. There was a system of
granting licenses at the time of
passing the B. N. A. Act, and there
are various statutes passed by
different provinces since confede
ration.

I|f|i

liii

ilililj

1 ;

(rovenNOR-

(tKNBRAT,

Dominion
V. Thb Focr
Provinces.

15i

B N.A. ACT, s. 92 (0).— HODGK EXAMINFI).

' Mimicipiil Institutions' is iiol
confined to the creation of niunici-
[Militics, but it extends to the delin-
in<^ the rights, powei ^^ duties, and
privileges of bodies created for what
is called nuniicipal |)ui'p()ses, that
is to say, the local regulation of
decency, order, n .'. so forth. In
Slavin r. Corporation of Orillia, 30
IT. C.Q.B. 159, p. 175, 1 Cartwright
Cases, 688, it was said by llichards,
C. J., that it must be assumed that
the Imperial Legislature in pa.ssi ig
the B. N. A. Act of 1867 intro-
duced tlie various provisions on
suggestions of the delegates from
the various provinces ; and the
delegates of the united province of
Canada probably well knew of the
Ai't of that in'ovince, 15 August
1H06, respecting the municipal in-
stitutions of Upper Canada, 29 i*t
30 Vict. c. 51., in which power was
granted to the municipalities in
I'pper Canada, mider certain con-
ditions, to limit the lunubei' of
taverns and to prohibit the license
of shop.s for the .sale of s[)irituous
liquors in the several municipalities ;
and that when the Imperial Act
uses the very words of the title of
this Act as one of the classes of
subjects on which the provincial
legislature may pass laws, namely,
'^lunicipal institutions in the pro-
vince,'there was no reasonable doubt
that it was intended that the ' muni-
cipal institutions' which were to
be constituted luuler that authority
were to [wssess the same powers as
those which were then in existenci,
under the same name, in the [trovince.
Their being followed by sub-.sec. 9
dill not show an intention to limit
the oxercis€' of the powers which
municipal institutions ought to
have, and which they had, of limit-
ing thesale by ri'tail in inns, or pro-
liibiting the side in .shops, but rather
tore'uovealldoubtsas to tlieir right
to raise a revenue, either for provin-
cial, local, or municipal purposes, by
the issuing of these and other licen-
ses : The Queen r. Frawlev, 46 U.
C. Q. B. 153; 7 O. A.R. 246
(Modge'.s case), 2 Cartwright, 576.

'The appellant's argument is that
there is no ])ower luuler sid)-see. 9 tn
grant licenses except for raising a
reveinie. But Hodge r. The Queen
decided that a provincial legislatnrc
was comi)eteut to create licensing;
bodies for the purpose of licensing
piM'sons X) carry on the liipinr
tratiic as a matter of police and
nninicipal regulation, anil that suli-
sec. 9 is cunndative and not i-e-
strictive. It was to remove doubts,
lender sid)-sce. 2, sec. 92, the pro-
vince has the |)ower of direct
taxation within the [)rovinces in
order to raise a revenue, and it

nnght have

been suggested tliiit

raising money by means of licenses
was not direct taxation but indirect
taxation, and it therefore gixcs
them the ex])ress power of grantini;
licenses for the jmrpose of i-aising :\
reveinie as an express power, not
i-e.sti'icti\e .so as to prohi' it them
from granting licen.ses exce])t Inv
the pur[)ose of rai.sing revenue, lint
really cumulative, ami to remove
doubts whether they might grant
licenses for that purpose, as being
a direct taxation. Indirect ta^ati()ll
being contiued to the Dominiiin.
[Lord iMonkswell : If the section
is taken by itself, it appears very
ditlicult to say that it would ex-
clude the power of imposing sonir
condition — .sucli as, if the owner of
a public house keeps his Iioum'
open l)eyond 12 he shall not have u
lieen.se.] Yes. Now this Act of
1H83 does interfere with that wliieli
must be admitted to be within the
exclusive inri.sdiction of the \ni.)-
vincial legislature, the i.-.-ue of
licenses in order to rai.se a reveiHie.
The appellant founded on thechniN'
of this 18S;{ Act which .sived tlic
payment of any duty fixed liy tiu'
provincial legislalni'e, and heseenu'il
to think that prevented the Act
their exelnsi\i'
sec. 9. But the
license issued under this Act of
1883 licensed a person to sell
liquor. Is not that inconsistci.t
with the power conferred on \\w
provincial legislature of grinitii:;;

interfering with
power undei

'44.''

B.N.A. ACT, s. 92 (1»)— VESSEL LICENSES,

155

licoii-i's witii a view t(i raising
I'i'vi'uiif.-? Tilt' words of siil)-sw. 9,
^w. i>2, j^ivos the cxcliisivi' powiT
111' tiixiitum l)_v iiicaiis of licenses
tor pniNJneiai, local, or nninicii)al
niirposi's, and this Act of lHi-t3 is a
liixiition of Her Majesty's snl)jects
witliiii the province for niiinicipal
|iiiriK).-c'>, l)ecaiise the halance, .ifter
|iiiviin lit of the inspector's salary
iiiul the expenses of the connnis-
^illm■l•s, goes into the nuinicii)al
iR'iisiny. The Dominion actually
li.ws the taxation to be paid by
IxTSOiis taking ont licenses, &c., for
till' boiiefit of the mnnicipality ; and
tliiit is ii most clear infringement of
Mill-see. !), sec. 92. The regnlation
III' tiiide and connnerce cannot be
liikcii in tlie wide, extended, and iin-
liinitoil sense the ai)pellants desire
loMiiply to it. The sec. 91 it.self
-hows that cininot be so, for in sub-
Mr. 15, relating to * baidviiig,' <fcc.,
if ri'i'iilatioii of trade had the wide
iiii'imiiig the appellants apply to it,
it was iiiuieee.s.sary to siu'cify ' bank-
in;;, incorporation of banks, and
issue of paper money.' We take
it the words 'I'egulation of trade'
wi'iv used, as was ,'<aid in Citi-
/I'lis' Insurance Co. c. Pai-sons
[xce sub-sec, 13, sec. 92], as
iiii'iuuug general regnlations as
;i|ipii(.'!\lile to trade generally of a
|)i)litifiil clmraeter, that is, for regu-
l;ilinn: trade and comnu'rce between
liii' Dominion and foreign conntrie.x,
iiii'liidiiig (ireal Uritain, or l)etween
ilir lU'ovinces tlienisehcs. But they
'lo not include uiinnte regulations
:ilT'i'liii^' ihi' terms ami conditions
"II wliitli persons carrying on ])ar-
, I iiiliivtriules are allowed to do so in
IMiticnlar localities. The judgment
"1 1'irCoiui below should lie allirm-
"1. .\!so ihiit judgment as regards
I till' wholi'saie and vessel licenses
■li'iiiid he reversed. [Lord ILds-
'iiiiv, L.C. : You and Sir Panvr
IHcisdicU both agree that that cou-
Iti'iitioii is uuleuable.] My learned
ll'i'ii'iul liiis stated my argument
JniiMv [orcihly than I could my.self.
|1 iigrec ihiii no logienl distinction
h^'''*'*'^''i' e;m be drawn between

wholesale and retail licenses, that ''ovkrnor-

tliere is no lo";ical distinction he- General
, , .P ^, ,. Dominion

tween regulating the power ot a ^ J^^^ fovR

,sho[)keeper to sell a dozen bottles Provincks.
at a time and regulating \]\v. power
of a tavern keeper to sell one itottle
at a tinu'. [Sir Montague Smith:
AVhelher he sells one bottle or
twelve he is selling by retail.] Yes.
It is a different kind of retail trade.
The Dominion cannot arrogate to
itself the power to give it.self juris-
diction bv givinji its own definition
of ' \s'holesale.' Yon must look
at the real substance of the matter,
and if there is no sound distinction
that can be drawn between whole-
sale licenses and shop and tavern
licenses, then, if the Act is iif.tj-d
viren as regards shop and tavern
licenses, it is equally ultra circs as
regards the wholesale licenses,
which are really another branch of
the retail trade. So also with the
vessel licen.se. A ves.sel is no more
than a floating tavern for this pia'pcw.
The objection to this Act is
that it attempts to regulate this
trade through what I call muni-
cipal institutions, and that the re-
gnlation and the legislation with
reference to wboleside licenses is
exactly the same as that with
I'cference to .shop or tavern liceu.«es.
[Sir Barnes Peacock : The N". B.
A. Act, 1867, .sec. 91, says, 'not-
withstanding anvtliiii" ill this Act,'
that is, notwithstanding anything
in .sec. 92, ' the exclusive legis-
lative authority of the Parliament
of Caiuula extends to all matters
coming within the class of subjects
hereinafter enumerated,' and those
are the classes enumerated in sec.
91. Xow one of the classes is the
criminal law. The Parliament Siivs,
in sec. 8.3 of the Act of 188.'^, that
' no person shall sell by wholeside or
by retail any liquor without having
first obtained a license under this
Act authorizing him to do so.'
Then by sec. 88 the punishment
for offences against the see. 66 is
provided. Then sec. 89, ' If any
purchaser of any liquor from a
person who is not licensed to sell

' f

I 11!

ir)6

B.N.A. ACT, s. 02 (!)).— LIQUOR c. DYNAMITK.

rrOVBRNOIl-

Grnkral
Dominion
('. The Four
Provinces.

the sum to he drunk on tlio pre-
mises, drinks, or causes or permits
any otiier person to drink, sueli
liquor on the premises where the
same is sold, the seller of sueh
liquor shall, if it appear that such
drinking was ».ith his privity or
consent, he suhject to the followinfi;
penalties, that is to say, — ' Then
for the first offence so and so, and
for the third offence imprisonment.
Now suppose in sec. 83 the legis-
lature had said, no jjer.son shall sell
hy wholesale or by retail any
liquors without having iirst oh-
taiiied a license under this Act
autlu "izing him .so to do, and if
any person shall offend against this
Act he shall be guilty of felony
and forfeit all his goods and
chattels found on the premises.
Would not thai have been within
the power of the Dominion in
passing a criminal Act ? That is
my difficulty, that you could not
say that the Parliament of (^anada
eoidd not create a crimiaal offence
for selling liquors without a lieen.se
in the same way as they might
create a criminal offence by carry-
ing arms without a license, or
manufacturing dynaiiiite without a
license.] This is not an Act to
amend the criminal law. The
clauses referred to are ancillary
clauses for the purpose of carrying
out that which is the main purpose
of the Act And if the main purpose
f)f the Act, the regulation of the
liquor traffic by means of local
licensing boards, is not within the
jurisdiction of the Dominion, then
the anci'laiy sections wonhl fall
with the Act. Then the imposing
punishment by fine penalty, or
imprisonment are within the ex-
clusive jurisdiction of the [irovincial
parliament. Undoubtedly the I*ai-
liament of Canada has jurisdiction
over the criminal law, sub-sec. 27,
see. 91, but on the other hand, sul)-
.sec. 15, sec. 92, must not be over-
looked, ' The imposition of punish-
ment by fine, penalty, or imprison-
ment.' [Sir Barnes Peacock: Not
forfeiture of all spirits that might be

found on the ])remi.ses.] I am not
so sure of that. One word as to
llus.si'jl r. The Queen. Jn that casp
the ((uestionwas the Temperance Act,
That Act did not purport to iccru-
late the traffic, all it did was to pni-
hibit the traffic. There was no qnes-
tion there of regulating the iiqiuir
traffic by means of licensing bodio.
[Sir Montague Smith : It sf.vm>
to be this, that the Tcniperaiicf Aut
rendered thv sjile of liquor unlawful,
.speaking broadly, '['his Act iis-
sumes the sale of liquors to h' law-
ful, and the (inestioii is whetlicr tlic
power to liceii.se the sale resides in
llic Dominion.] Or in other W(ircl>,
to provide municipal institutions
for the purpose of regulaliiig ii.
[Sir Barnes Peacock : The ililli-
ciilty I feel is this, whether tiun
may not prohibit conditioiifiiiy, iinil
if they prohibit conditionally,
whether they may not pro\i(le a
means for ijerformiug that con-
dition.] It is too late to argue
that after Hodge v. The Queen.
We do not argue, on the one hand,
that the provincial legislatures haw
exclusive jurisdiction over temper-
ance legislation, nor, on the otiur
hand, is it competent, after Hodge /■.
The Queen, to argue the DoiiiiiiioM
Parliament l;;.ve exclusive legisla-
tion over temperance.

Mr. Haldane followed.

Sir Farrer Herschell, Q.C., re-
plied. [Lord Halsbury, L.l'.;
"'Marriage and Divorce,' see. 91,
and ' Solemnization of ^huriafre,'
,sec. 92. Would you sjiy, witli tiienli-
ject of promoting morality uiidgeoil
government, the Dominion I'ailia-
ment woul<l have a right tu |m-
scrilw that the solemni/.iitioii "t
mai'i'iag*' should not take [ilaw
except between H and 12?] 'I'luw
sections gi\e nic the greatest ditli-
eiilty in ex|)laiiiing what me liii^
limitations upon the pi'(i\ iiiein!
power, Iwcau.se it is difficult to ?«
what is included in ' Solemnization
of Marriage.' It may merely mean
what is the form of .soleiniii/alioii,
[Sir Barnes Peacock: ll uiifilil [
itMpiire a i)riest in the ease, er|

B.N A. ACT, s. 92 (9) — HODGP: AND RUSSELL.

157

iiiiijlit lif like tho (lid Scottish law,
II (liM'liinitioii.] It would coiiU'
witliiii till' ■ Solciniiiziitioii ' wiiethcr
a religions cereuioiiy was iiccessarv,
(iia mere civil laarriajije. Tliero is
iKitliiii"' to prewiit tlio Doiiiiiiioii
I'liiiiiiiiu'iit, for Doiniiiion |)ur|toscs,
I'cqiiiriiif; cM'i'jIiody to take out a
license ms a menus of taxation, see
ill, siih-si'C. ',i, 'I'he 'reniporunee
Aet (if Ciniada was not au Act of
tiihil proliiliition, it was an Act
ivj;iiialiuj>-. Hodfic r Tlie Queen
may Ix' reconciled in tliis way —
that a provincial Act may deal with
a matter of that sort, nHinicipally
anil loeally, without preventing at
aiiv time the Dominion Parliament
dealing with the same suhject-
niatter for <;eneral [lurposes in the
Duminion. A thin;^- may W at a
ijiven time a local matter, which
niav lie dcidt with locally within
tile peil'ei't jHiwers of the provinces,
wlliell lleverllleless may have to he
dealt with hy the Dominion as a
wliiile for the whole Domiiuon at
•<(iiiie other time. As to re<^ulation
iif trade, what was left to the ceii-
tiiil legislature in the Ignited
States— which Constitution was no
dimlit considered in drawiu<jnp the
Federal Constitution — is ' To ivgn-
late euminerce with foreign nations
anil among foreign states, and with
native trik's,' a much more limited

any other.

hoards are municipal institutions i.s

To say the licensing Oovebnor-
Grnkral

, . , , , . rni BoMINION

begging the whole (piestion. They «. Thk Four
are no more that than inspectors Provinces.
underthe Adulteration Act. If it had
Iteen comnntted to one person,
would it have been a municipal in-
stitution ? Is the inspector of
weights and measures u municipal
institution ? No one suggests the
adulteratioti clauses are not gocMl.
[Sir Montague Smith: In Kus.sell r.
The ijuecn sec. 8 was not argued. J
So it was said, hut I have a .short-
hand note of the argument of that
case which shows it was most dis
tinctly urged before this Board.
[Lord Halsbury, L.C. : There are
some parts of the statute you
would insist on as intra inres, not-
withstanding others might be
ultra vires. Woidd you hand in
a list of those sections ?] Yes.
There are tirst the sections which
substitute the licensing board for
the Lieutenant-Governors, who
Were to gi\t' licenses under the
Temperance Act, 1H7H. That the
court ludow has held to l)e valid. If
valid it creates liceu.sing boards,
and some other sections would
depend on that. One other mat-
ter— undoubtedly powers were ex-
ercised by some of the municiiMdi-
ties and some of the provinces
before 1HG7, which is lieyond dis-

jiiiwer than here The limitation |)ute, are now nuitters coming

within one or other of the subjects
distinctly given to the Dominion
Parliament. Some dealt with
weights and nieasmes, which would
not be competi'Ut to them now.
Therefore munici|)al institutions
cainiot l)e taken to mean all those
things municipal institutions had
done or could do before 1867."
[He also cited the V . S. case as
to whethei- " Commerce " covered
" Navigation," : see Story, Cjnst.
I'. S. (I ed.), s. 1065; (Hbbons v.
Ogden, 22 S. C. U. S. (9 Wheat.),
p. 189; Brown v. Maryland, 25 S.
C. IT. S. (12 Wheat.),"p. -140.]

Lord Halsbury, L.C. : " Their
Lordships will consider the matter.
There will be no judgment deli-

it' these words here must not l)e
pressed too far, because these are
niiiy sii'iordinate enumerations for
greater certainty, but not to (exclude
liie generality of the words v.-hich
go liefore, and when they ire sini-
[liy s|M'eifyiiig things for greater
eeitainty some of those specifica-
tions may overhip. When once you
^liiiv that aiiy trade is regulated
tliiougliout the whole Dominion as
insurance liusiness was, and that is
done not lor local purposes but for
general purposes of the Dominion,
tlieii you have shown it is for the
iK'iiee and good government of
Canada in relation to the regulation
of tradi' And that would apply
[to tile liipior iiade as much as to

itN

i M!

il I

S M v!'

:! ii

158

B.N. A ACT, s. 92 (9).— SEVERN'S CASE UPSKT.

Governor-
General
Dominion
V. The Four
Provinces.

verod bpic, but tlioir Lordships will
report to Her Miije.sty."

12 Dec. 1H85, the Act.s 1883-4
declared ultra vires.

" At the Court at Windsor Castle,
the 12tli day of December 1885,
Present : The Queen's Most Excel-
lent Majesty, Lord President, Lord
George Hamilton, Mr. Plunket.

" Whereas there was this day
r(»ad at the Board a rejrort from the
Judicial Committee of the Pri\y
Council dated the 21.st of Novem-
ber last past, in the words follow-
ing, viz. :

" ' Your Majesty having been
plea.sed by your Order in Council
of the lOih May last past to refer
unto this Committee tiie humble
petition of the Most Honouiidile
Henry Cliarlcs Ki'itli Petty Fitz-
maurice, Marquis of Lansdowne,
fTOvernoi-Generul of the Dominion
of Cana<la, humbly praying that a
special case, and the decision of the
Su]>reine Court of Canada upon the
same, with reference to the com[)e-
tence of the Canadian Parliament to
pass the Acts 40 Vict. c. 30. and
47 Vict. c. 32., in whole or in part,
Eeo. v. Hami- may be referred by Your Majesty
"'^^ • to this Coumiittee to report thereon,

the Lords of the C'immittee, in
obedience to Youi- Majesty's sjjccial
order of reference, have taken the
said luHuble petition into considerit-
tiun, and having iieard counsel
lliereupon for the Dominion of
Canada, and likewise^ for the Lieu-
tenant-Govei'uors of the respective
provinces of Ontaria, Quebec, Nova
Scotia, and New Brunswick, and
having been attended by the agents
f(n' the province of British Colum-
l)ia, their Lordships do this day agree
humbly to report to Your Maje.sty as
their opinion, in reply to the two
questions which have been referred
to them by Your Majesty, that the
Liquor Liceu.se Act, 18H3, and the
Act of 1884 amending the same,
are not within the legislative au-
thority of the Parliament of Can-
ada. The provisions relating to
adulteration, if separated in their
operation from the rest of the Acts,

wouhl l)e witliin the authority of
the Parliament, but as, in tlicir
Lordships' opinion, they cannot Ix"
so separated, tlunr Lordshi|)s are
not prepared to report to Your
Majesty that any part of the.se Acts
is within such authority.'

" Her Majesty having tjiken the
said report into consideration, was
l)leased, by and with the advice of
her Privy Council, to apjuovu
thereof and to order accordingly.
Whereof the Governor-General ot
the Dominion of Canada, the Coni-
mander-in-Chief, and the Lieu-
tenant-Governors of the resiiectivf
jn'ovinces of the Dominion for tlic
time being, and all othei' per.sons
whom it may concern, are to take
notice ami govern themselve> ac-
I'ordinglv.

"C. L. Pkki."

A brewer allowed beer to lie
consunu'd in a cellar attached td
the l)re\very. He had a Domiiiinii
license ami also a pi'ovincial licciix';
by tlu' hitter he was not to sell any
liquor on the premises. Thus :—

Keg. r. H.vllid.w, Dec. 22,
1893, 21 O. A. R. 42, was an

appeal by the Attorney-Genei'al for
Ontario from the judgment of the
County Court of Wellington. Sit.
(II of the (Ontario Licen.se Act,
H. S. O. c. 194., is identical with
.sec. 70 of the Lifjuor Jjicense Ai't
of Canada, 1883 [10 Vict. c. .'10,].
Boyd, C, said: "That whole
Act of the Dominion, a.ssuming to
regulate the li(pior trallic, was de-
clared II It 1(1 rire.s by the Privv
Council upon a statutory case sub-
mitted [xce a hove]. It follows that
the regulation of the li(pi()r traific
is a matter of provincial conse-
quence. To this effect both Ritchie,
C.J., and Fournier, J., expressed
themselves, that since Severn r,
Reg., 2 S. C. R. 70, the course
of decision in the Privy Council
has renu)\ed any doubt as to
tht! [)ower of provincial Itgis-
latmvs to pass laws regulalinf;
the sale of liquors (whetiier wlioli

B.X.A. AC r, s. 92 (9).— BREWERS' LICENSE.

1 r)9

sale or ivtail), in Molson v. Lambc,
15 S. C. R. 253. This was a
liivwcr's ease, tlic (lufstion IxMiif^ as
ti)tlu'nii)acity of tlic Ciiicbcc Lcgis-
tiirc to require a licensf to be
laki'ii out by brewers duly licensed
to inaniit'acture by the Dominion.
Uanisay, J., in the court below,
s)ii(l: 'This was to be defended
under tlie B.N. A. Act, see. i)2, .sub-
>t'c. 9, and amounted to an impost
liV way of license for the pm'pose
oi' riiisinn; revenue on the ordinary
tnulc of a brewer. He referred to
Severn f. Roj^. as an isolated and
(■oini)rouiised judgment of adivided
cdiu't, and the majority of thecoui't
lifld, MS did the Su]ireme Court,
tliiit the Act was constitutional.'
Strong, J., now C..I. of S.C.. looiv
snlistimtiidly tlie same \ iew in Se\--
crn r. l{eg.. and I tliink the course
lif decision lias been lo <lis|)laee the
:uitliorily of that case and to autlieu-
liciile the opinions of Ritchie and
Slidiig, J.J. In IbHO the same
i|iit'sti()ii as to the effect of Sevei'n
/•• Heg. canu' before the full court
(if Xovii Scotia, and the majority of
ilici'imi't held (Reg. /•. McDougall,
If) April 18H9, 22 N. S. 4G2) that
llic Severn case was practically
uveiiuled. No mention was made
Ia the maritime judges of the prior
rase of Molson r. I>andic, Mai'cii
!.•), IHHfi, 15 S. C. |{. 253. So
ilie Coiu't of (}. B. in (Quebec, in
:ili|M'ai, held in 1H9() that tiie local
li'f,'isiatnre might authorize muuici-
|jaiitips to levy a tax for local pur-
poses oil w'holesale li(pu)r dealer's.
McMaiiauiy r. Shcrbrooke, G Mon.
li. B. 109. R. S. O. c. 19t.
s. ")1 requires brewers, distillers,
&(.'., t(i otitain a license to sell by
wliolesale, treating them, though
luamifai'turers, as also wholesMl"
ilenlers. To this no valid objec-
tion ciin now be raist'd, it appears
to iiie, because of its being an i'\ter-
teivnce with trade. In one respect
it may be so, but in another respect
it is a means of raising revenue for
local and provincial purposes, and
of ]Milice regulation for the piesei'-
\n\m\ of order. Tile legislation is

ju.stiHcd, under B. N. A. Act., sec. Kku. v. Hai.m-
'92, siib-secs. 8, 9. Tl.e Liquor "a^-
Liceii.se Act is properly classified
in tbe statutes under the liead of
'nninici|)al matters,' and the whole
object of the enactment in question
is to e.verci.se supervision over the
sale and consumi)tioii of spirituons
and fermented liipioi's, imposing
license fees for the |)urpose of de-
fraying the expense of such local
government, with a sni'plus for
other niuniei|)aland jirovincial |)nr-
poses [,see. 45]."

Osh-r, J.A., said: "The aj)-
peal derives any imporljince solely
from the objection, fii'st raised
by the respondent in this Court,
that sees. 51 (2) and 61 of the
lii(pior License Act are ulfro rirt'.i
the provincial legislature, the de-
I'eiidant being ;i brewer, and the
holder of a licen.>ie lo manufacture
lieer, Ac., from the Doniinicni (io-
Ni'rninent. He relies on .Se\ern v.
I{eg., and certainly if we could now
act on that case without regard to
more recent decisions, we should
have no dillieulty in upholding the
judgment by which the conviction
has been quashed. It has not been,
in terms, oxcrruled by the Judicial
Committee of the Privy Council, and
it may be said that, although it could
be explained or distinguished, it
could not be ovi-rruled by the court
which decided it. Nevertheles.s, the
gr(ani(ls on whicli it rested appear
tolia\c been considerably weakened,
if not entirely demolished, as the
Federal Act has become more ex-
tensively discussed and, perhajjs,
better undi'i'stood. These grounds
were : (1) That the imposition of a
license by the local goxcrnmcnt
uix)n a person carrying on the trade
of a brewer and the manufacture of
beer, and who already held an
excise license from the Dominion
CTOverninent, was an interference
with the exclusive powers of Parlia-
ment as to the regulation of trade
and commerce under .sec. 91, clause
2, of the B. N. A. Act, and could
not be regarded merely as the
exercise of a police power; (2)

r:f

■;!

! ;l

ii«

Rw}. V. Hai-ij-

DAY.

TiiunLow 1'.
AlAssAcirr-

8BTTS, &L'.

160

B.N.A. ACT, s. 92 (9).— I'. S. LICENSE CASES.

That the right eontVrred upon the
lootil U'gissliitinvs hy see. 92, climsc
9, to deal exeUisively witli shop,
tavern, auctioneer, and other
licenses, did not extend to licenses
to brewers, or other licenses which
were not of a Icx'al or municipal
character; and (3), — which is, per-
haps, included in or co\ercd liv tiie
last ground — that such licenses were
not aut.liori/ed Iiy sec. 92, clause 2,
as an exercise ol' a power of' direct
taxation within the jn'ovince in
order to the raising of a rcxcnue
for j)rovincial pui'po.scs — in short,
that they were indirect taxation.
The tlrst grotuid seems no longer
sustainalile in the face of Hodge /•.
Reg., 9 App. Cas. 117 [vcc dhorc],
which affirms the i>ower of the
local legislatures to regulate the
sale and disposal of intoxicating
liipiors, and the later case of Bank
of Toronto -r. Lanihe, Julv 9,
1887, 12 Apj). Cas. 57o [aee ante,
p. 113]; which IS also directly
opposed to the view that a local
license fee, whether upon hi'ewers
or upon hankers, woidd he an
interference with trade and com-
merce. As to the other grounds,
the last-mentioned case affirms the
power of the legislature to iinpo.se
a direct tax upon a hank or other
commercial corporation, carrying
on business within the pi'ovince,
and inferentially, therefore, that a
license fee imposed upon a person
carrying on tlie trade of a brewer
and wholesale vendoi' of ale is not
indirect faixntion, but conies within
the 2nd clause of the 92n(l sec-
tion of the Act, and is intrn vires
provincial legislation. Further,
this view of the effect of these de-
cisions is taken by the Supreme
Court itself in Molson v. Lambs,
16 S. C. R. 253 ; and no one can
read the report of the argument
and discussion before the Judicial
Coniniittee upon the question of
the validity of the Dominion Li-
censing Acts, 1S83-4, which were
ultimately declared by that body to
be tiltrft vires the Dominion Par-
liament, without seeing that the

legitiniale consccpience of their dc
I'ision is to ailii'iii I he power of the
piovincial authority to impose a
license or tax upon a brewer or
manufacturer of beer, and to regu
late the mode of carrying on tlie
business or trade. I think, there-
fore, that the sections in tpiestion
ar(^ infra vires." Hagarty, (\J.().,
and MacLennan, J. A., concuired.

In the license cases in the United
States, Tiii'KLOW v. Ma.ssaciiu-
sKTT.s, Ac, Jan. 1847, 4(5 S.C. I'.S.
(") How.) 58ti, Taney, C.J., said,
dealing with the law of New
Hampshire : " The law of New
irainpsliire is in my judgment m
Niilid one. Foi- although the gin
sold was an import from another
State, and Congress have clearlv
tlie power to regulate such impor-
tations, under the grant of power
to regulate commerce among the
.several States, yet, as Congress has
made no regulation on the subject,
the traffic in the article mav lie
lawfully regulated by the State as
soon as it is landed in its territorv,
and a tax imposed upon it, or a
license required, or the .sale alto-
gether prohibited, a<'Cording to the
policy which the State may siip-
jiose to be its interest or duty to
pursue."

HK(i. r. Justices of Ki:,g's
Cor.NTV, Feb. 1875, 15 S. C. N. B.
(2 Pugs. Rep.) 535.

'I'he New Brunswick Act, 3G
Vict. c. 10., enacted that "the
general session of the peace for the
several counties in this provini'o
are hereby empowered to grant
wholesale ami tavern licenses to
such and so many persons of gooi!
character as they in their discre-
tion shall think proper, to sell
liquor by Avhole.sale, or keep n
tavern within their respective coun-
ties, demanding and receiving for
everv such license a sum not ex-
ceeding .SlOO, nor less than «20."
One McManus tendered the
money for a license and was
refused, the Justices of King's

t" ■

BN.A. ACT, s. 92 (9).— LOCAL OPTION ACT.

161

';«s-

County absolutely declining to grnnt
a license to any person. Ritchie,
t'.J., Allen, Weldon, Fisher, and
Wetiuoiv,JJ., granted a niandannis,
Imldinfr the i)rovisions of the Act
were ultra vires the powers of the
provincial legislature. [See Note,
sub-sec. 2, sec. 91.]

In Reg. v. Prittie, 1878, 42
U. C. Q. B. 612, it was held to be
ultra vires of the Ontario Legisla-
ture to make the provisions of the
Ontario Licensing Acts have full
force and effect in a municipality
where the Canadian Temix^irance
Act of 1864 was also in force,
the effect being to make an offence
against the one an offence against
the other ; the reason given
against the local Act having such
an effect being that that would be
direct legislation on criminal law
and procedure in a criminal matter,
which was not in any way neces-
sary for the due exercise of
the provincial legi.slature's own
proper power.

See Suite v. Corporation of City
of Three Rivers, Jan. 12, 1883,
11 S. C. R. 25, in Q. B. Quebec,
5 Legal News, 331, which follow-
ed Hodge V. The Queen, and
decided that a bye-law passed by
the City of Three Rivers, imposing
a duty of 8200 on issuing a license
tosell intoxicating liquors, was goo<l.

That case was relied on in Griffith
V. Rioux, June 23, 1883, 6 Legal
News, 211. See also Reg. v.
Taylor, 1875, 36 U. P. Q. B. 183,
noted ante, p. 55. In Cooey v.
Municipality of Countv of Brome,
20 July 1877, 21 L.' C. J. 182,
the Temperance Act of 1864 of Up-
\Kt and Lower Canada was upheld.

I" Fot;l5n v. Corporation of

:• ! .Ed, Feb. 19,1884,9. S. C. R.

i from Q. B. Quebec, Ritchie,

'■'> ., following o\it his opinion in

eg. I'. Justices of King's County,

io S. C. N. B. (2 Pugs.) 535,

held the Quebec Act, 42 & 43

^'ct. c. 4., which ordered the

closing of saloons or taverns on

S 3340.

Sunday and at special times, as Poulin v. Cor-
valid; it being simply a local police poration of
regulation and incident to the local Q'"^'**'^'-
legislature's power to legislate in
rehjtion to municipal institutions.

Meredith, C.J., in Br.ofm v. Blouin v.
Corporation of Quebec, 18 Dec. Cori-oratioh
1880, 7 q. L. R. 18 (and his judg- °^ '^"™^''-
ment was sustained on appeal, 9 S.
C. R. 185), having cited Frederic-
ton V. The Queen and like cases,
siiid : " The foregoing citations art'
given as showing that although the
Parliament of Canada, untler its
power to regulate trade and com-
merce, alone has the power to
prohibit the trade in intoxicating
liquors, yet that the provincial
legislatures, under the powers given
to them, may for the preservation
of good order in the municipalities
specially under their control (sub-
.sec. 8), make reasonable police
regulations, although such regula-
tions to some extent affect the
sale of spirituous liquors, provided
they do not improperly interfere
with trade and commerce And
Ramsay, J., concurred.

In Pigeon v. City of Mon- Pioeon i-. City
TREAL, from Q. B. Quebec, 33 "^ ^lo^TREAr-
L. C. J. 221 ; in S. C. March 10,
1889, 17 S. C. R. 495, there was
a proceeding in prohibition to
restrain the Recorder's Court
from proceeding to hear and
(h'termine an action instituted
by the City of Montreal against
Pigeon to recover a fine imposed
for an infraction of a bye-law
of the city, which required all
])ersons exposing meat foi- .sale in
any private stall or shop outside of
the public meat markets to take
out a licen.se, for which license the
sum of .S200 was to be paid. The
Quebec Act, 37 Vict. c. 51. s. 123,
sub-sec. 31, authorized the city of
Montreal to |)ass bye-laws and to
impose a duty on the .sale be-
yond the limits of the market of,
inter alia, meat. It was held this
provincial Act and bye - law
were valid. [.See Note, sub-sec. 2,

■ 1 ■ c

;:i

! ; nn

! i RH^'*

lisii

Danaher t'.
Peters.

i!i

162 B.N.A. ACT, 9. 92 (9). -WHISKY PROHIBITION.

Case submitted
by Governor-
General in
Council.
Att.-Gen. of
Ontario v.
Att.-Gen. of
THE Dominion,
&c.

ProhiViitory
Liquor Laws.

sec. 91.] Suppose the provincial
legislature enacted that the sale of
liquor also should only be carried
on in certain specified spots in the
city, would such an Act or bye-law
be valid ?

In Danaheb v. Peters, and
O'REdAN V. Peters, June 14,
1889, 17 S. C. R. 41, one of the
questions was, Whether the New
Brunswick Liquor License Act,
1887, 50 Vict, (N. B.) c. 4. s. 10,
which provided that applications for
licenses tinder the Act must he en-
dorsed by the certificate of one-third
of the ratepayers of the district for
which the license is asked, was valid ?
It was contended this was a prohibi-
tory measure, inasmuch as the rate-
payers were able to prevent the
carrying on of the trade by refusing
to sign the certificate. The case
came to the Dominion S. C. from
S. C. N. B., which refused a Avrit
of prohibition restraining the en-
forcement of a conviction under the
Act. The S. C. of the Dominion
[Strong, Fouinier, Taschereau, and
Patterson, JJ.] held that the Act
was not m/i ra vires, [See Note,
ante, sub-sec. 2.]

The Minister of Justice, 5 Jan.
1875, doubted whether it was with-
in the competency of a ijrovincial
legislature to pass a law which
absolutely prohibits the sale of
liquor, as being an interference
with the parliamentary power of
Canada to legislate in respect to
the regulation of trade and com-
merce. Prov. Leg., 1886, 604.

Case Submitted by Gover-
nor-General IN Council. — Att.-
Gen. OF Ontario v. Att.-Gen.
of the Dominion and the Dis-
tillers' AND Brewers' Associa-
tion, which was decided by the
Supreme Court, 15 Jan. 1895, and
has been appealed to Her Majesty's
Privy Council in England, raised
the important question of provin-
cial jurisdiction over the liquor
laws of the province.

The 1 8th section of the Ontario

Local Option Act, 1890, 53 Vict.
c. 56., was as follows : —

" Whereas the following pro-
vision of this section was, at the
date of confederation, in force as
a part of the Consolidated Muni-
cipal Act, 29 & 30 Vict. c. 51.
s. 249, sub-sec. 9, and was after-
wards re-enacted as sub-sec. 7 of
sec. 6 of 32 Vict. c. 32., being the
Tavern and Shop License Act of
1868, but was afterwards omitted
in subsequent consolidations of the
Municipal and the Liquor LiceiiHe
Acts, similar provisions as to locnl
prohibition being contained in Tiie
Temperance Act of 1864, 27 & 28
Vict. c. 18.; and the said last-men-
tioned Act having been repealed in
municipalities where not in force
by The Canada Temperance Act, it
is expedient that municipalities
should have the powers by them
formerly possessed ; it is hereby en-
acted as follows : — The council of
every township, city, town and in-
corporated village may pass bye-laws
for i)rohibiting the sale by retail
of spirituous, fermented or other
manufactured liquors, in any tavern,
inn or other house or place of
public entertainment, and for pro-
hibiting altogether the sale thereof
in shops and places other than
houses of public entertainment:
Provided that the bye-law, before
the final passing thereof, has been
duly approved of by the electors of
the municipality in the manner pro-
vided by the sections in that behalf
of the Municipal Act : Provided
further that nothing in this section
contained shall be construed into
an exercise of jurisdiction by the
legislature of the province of On-
tario beyond the .revival of pro-
visions of law which were in forte
at the date of the passing of The
B. N. A. Act, and which the sub-
sequent legislation of this province
purported to repeal." The amend-
ing Act of 1891, 54 Vict. (Ont.)
c. 46., was passed to put it be-
yond doubt that the Act of 1890
was intended to prohibit the sale
by retail only, as was the case

BN.A. ACT, 8. 92 (9).— WHOLESALE AN^D RETAIL. 163

under tlio Act of 180G [29 & 30
Vict. c. 51. 8. 252]. The cor-
responding! provisions for Lower
Canadii, al)Ovo given, were snb-
stantiiiily re-enacted in the Quebec
Municipal Code, nrt. 571. The va-
lidity of these enactments has been
upheld by unanimous judgments
of the Court of Appeal of Ontario.
See In re Local Option Act before
Hngartv, C. J., and Burton and Mac-
lennan," JJ.A., Sept. 23, 1891, 18
0. A. R. 572 ; and upheld in Que-
kc, in Corporation of Hiintingdon
V. Moir, :\Iarch 21, 1891, 7 Mon.
Q. B. 281, by Dorion, C.J., Baby,
Bosse, Doherty, and Cimon, JJ.,
reversing B^langcr, J.

On 20 Oct. 1893, the tollowing
questions were referred by the
Governor-General in Council to
the S. C. under the R. S. C. c. 135.,
Supreme and Exchequer Courts
Act, as amended bv sec. 4 [see post,
sec. 101] of 54 & 55 Vict, c. 25 :—

(1) Has a provincial legislature
jurisdiction to prohibit thesalewith-
intheprovinceofspirituous,ferment-
ed, or other intoxicating liquors ?

(2) Or has the legislature such
jurisdiction regarding such portions
of the province as to which the
Canada Temperance Act is not in
operation ?

(3) Has a provincial legislature
jurisdiction to prohibit the manu-
facture of such liquors within the
province ?

(4) Has a provincial legislature
jurisdiction to prohibit the impor-
tation of such liquors into the pro-
vince ?

(5) If a provincial legislature has
not jurisdiction to prohibit the sale
of such liquors irrespective of
quantity, has such legislature juris-
diction to prohibit the sale, by retail,
according to the definition of a sale
by retail either in statutes in force in
the province at the time of the
confederation, or any other defin-
ition thereof ?

(6) If a provincial legislature
has a limited jurisdiction only as
regards the prohibition of sales, has
the legislature jurisdiction to pro-

hibit sales subject to the

the si'Vi
of the 99tli .section of " The Canada

limits ATT.-nr.N. ok

OnTAKIO 1',

Att.-Oen. (11-

|)rovided by the .S'veiid sub-sections "''''''^"'" '

TME DOMI.N'IDN,

I emperance Act, or anv of them, &c.

R S C c. 106.S.99? ■ ProhiLltory

(7) Had the Ontario Legislature Liquor Laws,
jurisdiction to enact the 18th section
of the 53 Vict. (Out.) c. 50., in-
tituled " An Act to improve the
Liquor License Acts," as said .sec-
tion is explained bv the 54 Vict.
(Ont.) c. 40., intituled "An Act
res|)ecting local option in the matter
of liquor selling" ?

The case was argued before Sir
Henry Strong, C.J., Fournier,
Gwynne, Sedgewick, and King, J J.
The three latter answered all the
questions in the negative. The Chief
Justice and Fournier, J., dissented
from that view, being of 0])inion
the questions should be answered
in tlie affirnintive, with the excep-
tions o. questions 3 and 4, which
they considered should be answered
in the negative. The case was
heard on 1, 2, 4 May 1894.

The Att.-CTcn. for Ontario sub-
mitted the first four questions
shoidd be answered in the affirm-
ative. Cited, to show could pro-
hibit before confederation, C. S.
L. C, 1801, c. 24. .s. 20; as to
Three Rivers, 20 Vict. c. 129.
s. 37; as to I^])per Canada, 22
Vict. c. 99. s. 245, sub-s. 0 ; C. S.
29 & 30 Vict. c. 51. s. 249; as to
r. C, 1859, c. 51., s. 246, sub-s. 6;
Nova Scotia, 21 V^ict. c. 47., and
R. S. N. S. 3 Series, c. 19. ; as to
" municii)al resolutions," Quebec
Resolutions, No. 43 ; Lepine v. Lau-
rent, 17 Que. L. R. 226; 14 Q.
Legal News, 369, where Lynch, J.,
upheld the right of the town of
Magog to prohibit the sjile by
wholesale as well as retail under a
Quelwc statute. And the cases
given above.

The Dominion counsel answered
to the 1st and 2nd questions, by
retail, in the aifirmative ; to the 3rd
and 4th in the negative ; and to the
5th, 6th, and 7th in the affirmative.
At^.-Gen. for Manitoba agreed
with Att.-Gen. for Ontario.

L 2

Att.-Gih. or
Ontabio v.
Att.-Oen. of
TUB Dominion

Prohibitory
Liquor Laws

iii i

M ii

164 B.iJT A. ACT, s. 92 (9).— DEFINITION OF WHOLESALE.

Tho Att.-Gen. for Quebec, to
questioiiH I and 5, answered that
provincial legislatures have no juris-
diction to totally prohibit the sale
within the province of spirituous,
fermented, or other intoxicating
liquors, as this would be inter-
fering with the regulation of " trade
and cotnmerce," over which the
Parliament alone has jurisdiction.
But under tlie exclusive legi.slative
authority given to the provincial
legislatures with regard to " munici-
pal institutions," and to "matters of
a merely local or private nature
within the province" [sub-sees. 8
and 16, sec. 92], provincial legisla-
tures can confer on municipal cor-
porations power to jMiss bye-laws
prohibiting the sale of spirituous
liquor by retail in shops and places
of public entertainment, and limiting
the number of tavern licenses with-
in the province. To the 2nd (ex-
cepting as above), 3rd, 4th, and 6th
questions, in the negative.

The Brewers' and Distillers' As-
sociation, that a negative answer
ought to be given to all the questions.

After the decision of In re the
Local Option Act, 18 O. A. R. 572,
the same question was raised in
Huson V. South Norwich. It in-
volved the validity of a bye-law
prohibiting the retail sale of liquor
within the township under the au-
thority of the same Ontario Local
Option Act. Hagarty, O.J., Bur-
ton, Osier, and Maclennan, May
20, 1892, 19 O. A. E. 343, held the
bye-law valiil. Huson, represent-
ing the liquor dealers, apjjealed to
the S. C, and on 15 Jan. 1895,
Sir Henry Strong, C.J., Fournier,
and Taschereau, JJ. (Gwynne and
Sedgewick, JJ., dissenting), hehl
the Act valid. As will be seen be-
low, in The Att.-Gen. of Ontario v.
The Att.-Gen. for the Dominion, the
Ontario Act was held to be ultra
vires by Gwynne, Sedgewick, and
King, JJ. (Sir Henry Strong, C. J.,
andFournierdissenting). Therefore
on the same day there were conflict-
ing decisions on the same question.

[The following judgments his

Lordship, the Chief Justice, kindly
returne(l to me in proof corrected.
His Lord.ship also sui)plied me with
the judgments in Huson v. South
Norwich; see post, p. 195.]

Judgment in Att.-Gen. of Ontario
V. Att.-Gen. for the Dominion, 15
Jan. 1895:—

Sir Henry Strong, C.J. : " My
reasons for the foregoing answers
will appear from my judgment in
Huson ». South Norwich" [acpies-
tion on the same Act, reported on
the validity of the publication of the
bye-laws in 21 S. C. R. 669].

*' I have only to add that I do
not think any statutory detinition of
the terms ' wholeside ' and ■ retail '
is requisite, but if legislation is
required for such purpose it is
vested in the Dominion as apper-
taining to the regulation of trade
and commerce. I answer the 3r(l
and 4th (luestions in the negative,
because the prohibition of manufac-
ture and importation wouh. affptt
trade and commerce, and so must
belong to the Dominion ; and fur-
ther, for the reason that prohi-
bition to that extent would affect
the revenue of the Dominion de-
rived from the customs and excise
duties."

His Lordship's judgment in
Huson V South Norwich was:
" All questions involved in this
appeal, save that relating to the
constitutional validity of the 18th
section of the Ontario statute,
53 Vict. c. 56., entituled ' An Act to
improve the Liquor License Laws,'
as explained and limited by the On-
tario statute, 54 Vict. c. 46. s. 1,
have been already disposed of. [21
S. C. R. 669.] This remaining
point we have now to determine.

" I am of opinion that these en-
actments were intra vires of the
provincial legislature. The learned
judges of the Court of Appeal, in
the case of the Local Option Act
[18 O. A. R. 572], have dealt
fully with this identical question,
and I so entirely agree with botli
their reasons and conclusions that
I might well have contented myself

B.N.A. ACT, 8. 92 (9).— DOM. INCOMPETENCY. 165

with n reference to that case with-
iiiit adding to the mntss of judicial
decisions already accumulated on
the subject. There ai)[)ears to nie,
iiiiwever, to be some additional
iviisoiis, which I will state as suc-
cinctly as possible. We are pre-
clmled by the decision of the Privy
Council in the case of Kussell
V. The Queen, 7 App. Cas. 829
[see Note, above], and by that of
this Court in the Citv of Frederic-
ton V. The Queen [3 S. C. R. 505],
IVoin holdiuf^f that under sub-sec. 8
of sec. 92 of the B. N. A. Act, the
cxclusixe power of prohibiting the
sjilc of liquor by retail, including
tlie enactment of what are called
Local Option Laws, was given to
the provinces as an inciilent of the
liolice i)Ower conferred by the words
'Municipal institiitions.' 'J'hat those
words do confer a police power to
the extent of licensing and regulat-
ing was decided by the Privy Coun-
cil in the case of Hodge v. The
Queen, 9 App. Cas. 117 [see Note,
above]. The question then is nar-
rowed to this : Have the provinces,
under this sub-sec. 8, a power con-
current with that of the Dominion
to enact prohibitory legislation, to
lie carried into effect through the
instrumentality of the municipal-
ities or otherwise, either generally
or to the extent of the power of
prohibiting which had been con-
ferred on municipal bodies by
legislation enacted prior to con-
federation and in force at that
date ? It is established by Russell
V. The Queen that the Dominion,
being invested with authority by
sec. 91 to make laws for the peace,
order, and good government of
Canada, nuiy pass what have been
denominated local option laws. But
as I understand that decision, such
Dominion laws must be general
linvs, not limited to any particular
province. It is not competent to
Parliament to draw to itself the
right to legislate on any subject
which by sec. 92 is assigned to the
pro\-inces by legislating on that
Bubject generally for the whole

Dominion, but this is, of course,
not done where in the execution of
a power expressly given to it by
.sec. 91, the Federal Legislature
makes laws similar to tho.se which
a provincial legislature may make
in executing other powers expressly
given to the provinces by see. 92,
Therefore, it appears to me that
there are in the Dominion and the
provinces, iesi)ectively, .several and
di.stinct powers, authorizing each,
within its own sphere, to enact the
same legislation on this subject
of prohibitory liquor laws, r ■-
straining sale by retail ; that is to
say, the Dominion may, as hat,
already been conclusively decifk-d,
enact a prohibitory law for the
whole Dominion, whilst the pro-
vincial legislatures may also enact
-iiniilar laws, restricted, of course,
to their own jurisdictions. Such
jirovincial legislation cannot, how-
ever, be extended so as to prohibit
importation or manufacture, for the
reason that these subjects belong
exclusively to the Dominion under
the head of ' trade and coiumerce,'
and also for the additional reason
that the revenue of the Dominion
derived from customs and exci.se
duties would be thereby affected.
That there may be, in respect of
other STibjects, such concurrent
powers of legislation has already
been decided by the Privy Council
in the case of the Att.-Gen. of
Ontario v. Att.-Gen. of Canada,
[1894] A. C. 189, where this ques-
tion arose with respect to insolvency
legislation. I venture to think the
present even a stronger case for the
application of such a construction
than that referred to. To neither
of the legislatures is the subject of
prohibitory liquor laws in terms
assigned. Then what reason is
there why a local legislature in
execution of the police power con-
ferred by sub-sec. 8 of sec. 92,
may not, so long as it does not
conflict with the legislation of the
Dominion, adopt any appropriate
means of executing that power,
merely because the same means

AtT.-GeK. IIF
O.NTARIO V.

Att.-Obw. or

THE D0MIIII0!«,

&c.

Prohibitory
Liquor Laws.

Slit JIrnry
Strono, C.J.,
for validity.

Inl

Ir ijiii'

,1
■ 'i

H |:

166 B.N.A. ACT, s. 02 (0).— RETAIL ANT) " C0MM15RCE."

Att.-Gk;*, or
0:«rAHlo r,
Ari'.-dKN. or
TUB Dominion,

I'mhibitory
Liijuor Ijiiwk.

Sill Heniiv
Stuo.no, C.J.

iniiy lie mloptt'd by the Dominion
I'liriiaincnt under tlu- iiiitliority of
SCI'. !)l ill cxt'cntin;; ii power
specitieally <;iveii to it ? It Ims been
decided liy tlie iiigliest antliority
tliiit tlierc are no reasons against
such a construction This is, in-
deed, even n slioiif', case for rc-
eognisiii}; such a concurrent power
than tile case of tlic Att.-Gcn. of
Ontario r. Att.-dcn. of Canada,
Ix'cause liankruplcy and insolvency
laws arc, hy sec. 01, expressly
attributed to the exclusive juris-
diction of tho Dominion. In the
event of legislation providing for
prohibition enacted by the Do-
minion an<l by a province coming
into conflict, the legislation of the
province would, no doubt, have to
give way. This was pointed out
by the Privy Council in the Att.-
Oen. of Ontario v. Att.-Gen. of
Canada, and although the B. N.
A. Act contains no provision de-
claring that the legislation of the
Dominion shall be supreme, ns i.s
the case in the Constitution of tlic
United States, the same princijde
i.s necessarily implied in our Con-
stitutional Act, and is to l)e applied
whenever, in the many eases which
may arise, the federal and pro^^ncial
legislatures adopt the same means
to carry into effect distinct powers.
That a general i)olice power, suffi-
cient to include the right of legis-
lating to the extent of the prohi-
bition of retail traffic or local option
laws, not exclusive of, but con-
current with, a similar power in the
Dominion, is vested in the provinces
by the words ' Municipal institu-
tions in the province ' in sub-sec. 8
of see. 92, is, I think, a propo-
sition which derives support from
the case of Hodge r. The
Queen, 9 App. Cas. 117 [see Note,
above]. It is true that the sub-
ject of prohibition was not in
question in that case, but there
would seem to be no reason why
prohibitory laws, as well as those
regulating and limiting the traffic
in liquors, shoidd not be iucluded
in the police power which, under

the words 'Municipal institutions,'
it was held in rio<lge j*. 'I'he (Jupen,
to the extent of licensing, the pio-
vinces possessed. The dilTereiicr
between regulating and liceiisinir
and prohibiting is one of dcgrci'
only. As regards the objoetioii
that to recognise any such right of
legislation in a province not exteii-
ding to the prohibition of im-
portation and manufacture would
Im' an infringement of the power of
the Dominion to reguhite trade and
commerce, I am not impressed by
it. The retail liipior traffic cnn
scarcely be regarded as coming
directly under the head of ' trmlc
and commerce' as used in the B,
N. A. Act, but as the subjects
enumerated in sec. 92 are excep-
tions out of those mentioned in .sec.
91, it follows that if a police jwwer
is included in sub-.sec. 8 of the
former section, the power itself and
all appropriate means of carryinj;
it out are to be treated as uncon-
trolled by anything in .sec. 91.
Moreo\er, Hodge f. The Queen
also applies here, for although in
a les.ser degree, yet, to some ex-
tent, the restriction of the liquor
trade by a licensing system would
affect trade and commerce. Ou
the whole, T am of opinion that
the provincial legislatures have
l)Ower to enact prohibitory legis-
lation to the extent I have men-
tioned, though this power is in no
way exclusive of that of the Do-
minion, but concurrent with it. If
I am wrong in this conclusion, it is
sufficient for the decision of this
appeal to hold, as I do, that the
Legislature of Ontario had [wwer
to repeal and re-enact the legisla-
tion in force at the date of the Con-
federation Act, which gave muni-
cipal councils the right to pass
bye-laws absolutely prohibiting the
sale of liquor by retail within cer-
tiiin local limits. Having regard
to the history and objects of con-
federation, I can scarcely think it
possible that it could have been
intended by the framers of the B.
N. A. Act to detract in any Tf»f I

B.N.A. ACT, 8. 92 (9).— QUEBEC RESOLUTIONS.

167

from the jiiriwliftioii of the pro-
vinces ovtT their own sovi-ral mjs-
tpiiis of inuiii{'i|)al fjovcrnnn'iit. If
; he words ' Miiiiieipnl institutions'
ill siib-s»'('. 8 are to have any nioan-
ing attrilaited to th»'ni, tht«v ninst
surely lie taken ns giviii}:; authority
to re|ieai, rt'-enaet, and remodel die
laws relating to all municipal legis-
iiitioii then in forcp.

"In Re Shivin v. Orillia, 30 U. C.
Q. B. 159, tiiis was the view of
the Ontario Ct. of Q. B,, and
Richards, C.J., in his judgment on
thnt ease |)utH forward [)owerfid
Brgiiments in support of that con-
clusion. These reasons, hh well as
these piven for the judgment of the
Court of Appeal in the local option
ease [18 Ont. App. R. 572], have
convinced me that at least to the
p.\tent last mentioned (even if I
(im wrong in my first propo.sition)
the provinces have the power to
icgislnte. As the enactments now
in question are reproductions of
those in force at the date of con-
federation, they were, therefore,
intra vires of the Ontario Legisla-
ture. In the case of Severn v. The
Queen, 2 S. C. R. 70 [see Note,
sec. 91], I expressed some doubt
ns to the decision in Re Slavin v.
Orillia, on the ground that the effect
of thnt case would be to make the
law vary in different provinces.
These observations were not mate-
rial to the judgment I then gave,
which was foimded entirely on the
'Jth sub-sec. of sec. 92, and I have
now come to the conclusion that
tiiey were not well founded. The ap-
peal must be dismissed with costs."

Fournier, J. : "I concur in the
conclusions arrived at by the Chief
Justice of this Court, and adopt
his answers to the seven questions
submitted."

Gwynne, J, : '< In construing the
jiinguage of the B. N. A. Act defin-
ing the jurisdiction of the Dominion
Parliament and of the provincial
legislatures, we must never lose
sight of the fact that this language is
that of the resolutions adopted in
1 1864 by the provincial stateamen

as.sembled in Quebec, by the autho-
rity of Her Most Uracious Majesty,
for the purpose of framing the
|)rovisions of a Constitution for
fech'rally uniting the B. N. A. pro-
vinces uito one government tnicU'r
the British Crown, and that the
B. N. A. Act was ))assed merely
for the purpose of giving legislative
form to the terms and i)rovisions of
a treaty of union iR-tween the
respective |>roviiues forming the
confederation and the ImiK?rial Go-
vernment, as .such terms and pro-
visions are expressed in the reso-
lutions adopted by the framers of
the Constitution, and by the respec-
tive legislatures of the jtrovinccs ofi
Canada, Nova Scotia, and New
Brun.swick, and by the Imperial
Government. So likewise must we
keep ever present to our minds the
fact that the main object of these
provincial statesmen, who were the
authors and founders of our
new Constitution, in fra.ning their
project of confederation, was to
devise a scheme by which the best
features of tiie United States of
America, rejecting the bad, should
l)e grafted upon the British Con-
stitution, and to vest in the pro-
vincial legislatures exclusive juris-
diction over all matters of a purely
]»rovincial, local, municipal, ami
domestic character, and in the
general or central legislature ex-
clusive jurisdiction over all matters
over which, as being of a general,
quasi-national, and sovereign charac-
ter, the inhabitants of the several
provinces might be said to have a
common interest distinct from the
particular interest they would have
in matters offecting the local,
municipol. and domestic affairs of
the particular province in which
each should reside. That this was
the main design of the scheme of
confederation proposed by the
framers of our Constitution, and as
intended by the resolutions adopted
by them, is abundantly apparent
from the speeches accompanying
the submission of the resolutions to
the legislatures of the provinces for

Att.-Ob!*, of
Ontahio I'.
Att.-Okn. or

TIIK DOMI.NKIN,

Proliiliitory
Liquor LawM.

FounjiiEB, J.,
for validity.

GWYNNB, J.|

against
validity.

,5 ' i
I

r^m

Att.-Gen. of
Ontario v.
Att.-Gen. of
THE Dominion
&c.

Prohibitory
Liquor Laws.

G-WYNNE, J.

I i

168 B.N.A. ACT, 8. 92 (9).— LORD DURHAM'S REPORT.

their adoption. The late Sir John
Macdonald, the chief of the pro-
vincial statesmen eni^ajjed in fram-
ing the resolutions, when present-
ing them to the legislature of the
province of Canada f(jr their adop-
tion, says : ' We nnist consider the
scheme in the light of a treaty ;
the whole scheme of contV'deration,
as propounded by the Conference,
as agreed to and sanctioned by the
Canadian Goverinnent, and as now
presented for the consideration of
the peoi)le and the legislature,
l)ears upon its face the marks of
compromise.' And again, ' In the
l)ropose(! Constitution all matters of
general interest are to be dealt with
by the general legislature, while
the local legislature will deal with
matters of local interest.' Again,
referring to the Constitution of the
United States of America, he says :
' We can take advantage of the last
78 years during which the Con.sti-
tution of the United Staies has
existed, and I am strongly of
opinion that we have in a great
measure avoided in this system
which we propose for the adoption
of the people of Canada, the defects
which time and events have shown
to exist in the American Consti-
tution.' And again, 'We have
strengthened the general govern-
ment, we have given the general
legislature all the great subjects of
legislature, Ave have confp -red on
them not only specifically and in
detail all the powers which are in-
cident to so\ ereignty, but we have
expressly declared that all subjects
of general interest not distinctly
and exclusively conferred upon the
local government and local legisla-
tures shall be conferred upon the
general government and legisla-
ture.' And, ' I .shall not detain the
House by entering into a con-
sideration at any length of the
diflPerent powers conferred upon
the general Parliament as contra-
distinguished from those reserved
to the local legislatures, but any
honourable meml)er, in examining
the list of different subjects which

are to be assigned to the general and
local legislatures respectively, will
see that all the great questions
which affe','t the general interests
of the confcfleracy as a whole are
confided to the Federal Parliament,
while the local interests and local
laws of each section are entrusted
to the care of the local legislatures.'
The late Mr. Geo. Brown, then
President of the Executive Council
of the province of Canada, and
also one of the delegates who
framed the Constitution, said:
' All matters of trade and commerce,
banking and currency, and all
questions common to the whole
people, we have vested fully and
unrestrictedly in the general go-
vernment.' And, 'the Crown
authorized ns specially to make
this compact, and has heartily ap-
proved of what we did.' And he
described the terms of the scheme
of confederation as embodied in
the resolutions to Lord Durham's
: ?port, wherein he suggested a
imion of the provinces 'upon a
plan of local government by elec-
tive bodies subordinate to the
general legislature, and exorcising
complete control over such local
matters as do not come within the
province of general legislation, and
that a general executive upon an
improved principle ' should be esta-
blished, together with a supreme
court of appeal for all the North
American Colonies.' And, again, he
said that 'No higher eulogy could
be pronounced upon the scheme
produced than that which he had
heard from one of the fore-
most of British statesmen, namely,
that the system of government
which we pro[)ose seemed to him a
happy compound of the best fea-
tures of the British and American
Constitutions.' Sir Geo. Etienne
Cartier, then Attorney-General of
Canachi East, and another of the
framers of the Constitution for the
j)roposed confederacy, said as to
the general scheme, in advocacy of
its adoption by the Canadian Legis-
lature, ' Questions of commerce, of

B.N.A. ACT, s 92 (9).— LORD CARNARVON'S SPEECH. 169

international communication, and
all matters of general interest, would
Ix" discussed and determined in the
general legislature.' And, again, he
said that in all their proceedings
the trainers of the Constitution
had the aijprobat ion of the Imperial
Government, and in fine he said,
'I have already declared in our
own name, and on behalf j,. the
Government, that all the delegates
that go to England will acce[)t
from the Imi)erial Government no
Act but one based upon the reso-
lutions if adoi)ted by the House,
and will not bring hack any other.'
The resolutions having beenadojjted
by the lej^islatures of Canada, Nova
Scot..!, and New Brunswick, were
transmitted to the Imperial Go-
vernment, and, at the request of
that Government, a conference was
held upon them in Englanil be-
tween delegates from those i)ro-
vinces ami the Imperial Govern-
ment, at which conference the resc-
lutions were adopted almost verba-
tim, with a slight modifi'-ation as
to the power of the executive go-
vernment of the confederacy, intro-
duced at the suggestion of the
Imperial Government for the pur-
l)ose of still further strengthening
the central executive of the pro-
posed confederacy,' such modifica-
tion consisting in expunging the
•14th resolution, which proposed to
vest in the provincial executive the
[lower of pardon of criminal ofFen-
e'e,s, as to which resolution Sir J.
Macdonald had siud, when sub-
mitting the resolutions to the Cana-
dian Legislature, that this was a
subject of Imperial interest, and
that if the Imperial Government
should not be convinced by the
argument they would be able to
press upon them for the continu-
ance of the clause (1 tth resolution)
they could, of course, as the over-
I'uling power, set it aside. Accord-
ingly, at the conference in England
it was, v,I:h the assent of the pro-
vincial uelegates, set aside and ex-
punged, and that power of pardon
was vested in the central or general

government, and in other respects Att.-Gen. of
the language of the resolutions Ontawo v.
was not only substantially, but ^^H^ZZ^,
almost verbatim et literatim, em- ^^
bodied in a Bill agreetl upon by Prohibitory
the provincial delegates and the Liquor Laws.
Imperial Government as the Bill co Gwtnne J.
be presented to Parliament to be
passed into an Act. In Her
Majesty's A<ldress to both Houses
u[)ou the opening of Parliament
in Feb. 1867, she was [)leased to
refer to the proposed scheme of
confederation in the following man-
ner. [Reads the formal announce-
ment of the intention to introduce
a Bill.] Lord Carnarvon, then
Colonial Minister, in presenting
this Bill to Parliament explained
its intent and purpose, saying,
among other things, with reference
to the said resolutions, that they,
with some slight changes, formed
the basis of the measure to be sub-
mitted to Parliament ; that to those
resolutions all the British provinces
in North America were consenting
part'cs, and that the measure
founded upon them must be accep-
tetl as a Treaty of Union. Then,
referring to the distribution of
powers, he said, 'I now pass to
that which is, jierhaps, the most
delicate and most important part of
this measure, the distribution of
powers between the central govern-
ment and the local authorities ; in
this, I think, is comprised the main
theory and constitution of Federal
Government; ov this depends
the principal woiKing of the new
system ' ; and ' the real object which
we have in view is to give to the
central government those high
functions and almost sovereign
powers by which general principles
and uniformity of legislation may
be secured on tho.se questions that
are of common import to all the
provinces, and at the same time to
retain for each province such an
ample measure of municipal liberty
and self-government as will allow,
and indeed compel, them to exer-
cise those local powers which they
can exercise with great advantage

■ ; '

iar

'p^

170 B.N.A. ACT, 9. 92 (9).— PURELY PROVINCIAL.

Att.-Gbn. of
Ontabio v.
Att.-Gen. of
THE Dominion,

Prohibitory
Liquor Laws.

GWYNNE, J.

'liiii

ii i ! I

to the community.' *In this Bill
the division of powers has been
mainly effected by a distinct classi-
fication ; that class) fitation is four-
fold : 1st, those subjects of legis-
lation which are attributed to the
central Parliament exclusively ;
2nd, those which belong to the
provincial legislatures exclusively ;
3rd, those which are the subject
of concurrent legislation ; 4th a
particular subject which is dealt
with exceptionally.' Then as to
the subject of concurrent jurisdic-
tion he says, ' There is, as I have
said, a concurrent power of legisla-
tion to be exercised by the central
and local parliaments. It extends
over three separate subjects — immi-
gration, agriculture, and public
works.' Then, in reply to a ques-
tion, whether by the terms of the
arrangement that had been come to
Parliament was ^jrecluded from
making any alteration in the terms
of the Bill, he said, * It was, of
course, within the competence of
Parliament to alter the provisions
of the Bill, but he should be glad
for the House to understand that
the Bill partook somewhat of the
nature of a Treaty of Union, every
single clause of which had been
debated over and over again, and
had been submitted to the closest
scrutiny, and, in fact, as each of
them rei)resented a compromise be-
tween the different interests in-
volved, nothing could be more fatal
to the Bill than that any of those
clauses which were the subject of
compromise should be subject to
such alteration ; that, of course,
there might be alterations which
were not material, and which did
not go to the essence of the
measure, and he would be quite
ready to consider any amendment
that might be proposed in Com-
mittee, but that it would be his
duty to resist the alteration of any-
thing which was in the nature of a
compromise, and which, if carried,
would be fatal to the measure.'
Accordingly, the Bill was ijassed
as introduced, without any altera-

tion whatever, as .he British North
America Act, 1867. From the
j.bove extract it is apparent that
that Act is but the reduction into
legislative form of a treaty, after
the fullest deliberation, previously
agreed upon between the provincial
statesmen, who were the originators
and framers of the scheme of con-
federation contained therein, and
Her Majesty's Imperial Govern-
ment, and such being the history
of the origin of the scheme and of
the Treaty of Union, and of its
embodiment in an Act of Parlia-
ment, when a question should arise
which should create any doubt as
to whether a particular subject of
legislation comes within any of
the items enumerated in sec. 92,
and so under the exclusive juris-
diction of the provincial legisla-
tures, or within sec. 91, and so
under the exclusive jurisdiction of
the Dominion Parliament, the doubt
must be solved by endeavouring to
ascertain the intention of the
framers of the scheme and the
parties to such treaty. From the
above extracts it is also apparent
that the essential features of the
scheme of confederation was that
the legislative jurisdiction conferred
upon the central and provincial
legislature respectively should be
exclusive upon all subjects placed
under the jurisdiction of each, save
only the three subjects which were
made the subjects of concurrent
jurisdiction ; and that such exclu-
sive jurisdiction conferred upon
the central legislature, that is to
say the Dominion Parliament, ex-
tended over all matters of a quasi-
national and sovereign character,
and over all matters of common
import and general intertest which
affect the general interests of the
confederacy as a whole, that is to
say, over all matters in which the
people of the confederacy as a
whole may be said to have a com-
mon interest; and that the exclu-
sive jurisdiction of the provincial
legislatures was restricted to matters
of a merely private, provincial,

B.lf.A. ACT, s. 92 (9). -MUNICIPAL AND DOMESTIC. I7l

miinici[)iil, and domestic chtiracter,
all of which matters are compre-
lieiuled in the subjects enumerated
ill the several items in sec. 92 of
the A(!t, which, under the heading
•E.\clnsive Powers of Provincial
Legislatures,' declares that — [Reads
sec. 92.] Then follow sixteen
iieras, every one of which can with
the utmost propriety be said to re-
late to subjects of a purely local,
private, provincial, municipal, and
domestic character. But by sec.
91 it is declared — [Reads it.]
Then follow twenty-nine items, the
second of which is ' Regulation of
Trade and Commerce.' The sec-
tion then closes with the provisions
-[Reads end of sub-sec. 29.] It
1ms been sometimes, and still is by
some, suggested that this pro-
vision refers grammatically only to
item l(j of sec. 92, but this is a
too critical constrtiction of the Act
for what the enactment plainly
says is — 'that any matter coming
within (my of the classes of subjects
cimnierated in sec. 92 shall not be
deemed to come within the class of
matters of a loca' or private nature
comprised in the enumeration of
the classes of subjects by this Act
exclusively assigned to the legisla-
tures of the provinces ' ; thus, as I
submit, and if I may be permitted
the expression, explicitly, implying
that, as the fact in truth appears to
me to I)e, all the matters exclusively
assigned to the provincial legisla
tures by the enumeration contained
in sec. 92 were (within the intent
of the framers of the scheme of
confederation, and so within the
meaning of the B. N. A. Act) of a
purely local and private nature,
that is to say of a purely provincial,
mtmicipal, and domestic character,
B" distinguished from matters of
common import and general interest
to the ijeople of the confederacy as
ft whole. The true effect of this
provision in sec. 91 is, plainly as
it appears to me, to give expressly
to the Dominion Parliament for
the purpose of exclusive legislation
upon ail matters coming within the

several subjects enumerated in sec Att.-6bs. of

91, legislative jwwer, if required, 0><TAnio v.
over all the subjects enumerated in ^,""dom;nZ.
the sixteen items or sec. 92, every &c.

one of which relates to matters of Prohibitory
a purely provincial, municipal, pri- Liquor Laws,
vate, and domestic character, that Gwynne J.
is to say, ' of a local and private
nature,' so that legislation by the
Parliament upon any of the sub-
jects comprehended within any of
the items enumerated in sec. 91
may be complete and effectual, not-
withstanding that for such purpose
interference with some or one of
the subjects comprehended in the
enumeration of subjects in sec. 92
should be necessary, and such
interference by the Dominion Par-
liament Avith any of the subjects
enumerated in sec. 92 shall not be
deemed to be an encroachment
upon or interference with the legis-
lative powers conferred upon the
provincial legislatures.

" Now, according to the canons
of construction as laid down by
this Court in Fredericton v. The
Queen, 3 S. C. R. 505, and by the
Judicial Committee of the Privy
Council in Russell v. The Queen.
7 App. Cas. 829 (between which I
do not find there is any substantial
difference), if the jurisdiction to
prohibit absolutely the carrying on
of the trades under consideration,
or of any trade, whether by retail
or wholesale, is not comprised in
some or one of the items enumera-
ted in sec. 92 of the Act, the
provincial legislatures have no such
jurisdiction, but the same is ex-
jiressly and exclusively vested in the
Dominion Parliament; and even
though a particular subject of
legislation may be capable of being
construed to come within sec. 92,
reading that section by itself, still,
if that subject comes within any of
the items enumerated in sec. 91, it
is taken out of the operation of sec.

92, which in such case is to be
construed as not comprehending
any such subject. Now the several
questions in the case submitted to
us are resolvable into this one,

;■■■■('

172

: :.

Att.-Gbn. of
Ontario v,
Att.-G^n. of
THE Dominion,
&c.

Prohibitory
Liquor Laws.

GWYNNE, J.

! i

B.N.A. ACT, s. 92 (9).— COMMON IMPORT.

namely, is the jurisdiction to pro-
hibit absohitely the manufacture in
any province of the Dominion of
Canada, or the importation into
the province or the sale therein,
either by wholesale or retail, of
spirituous, fermented, or other in-
toxicating licjuors vested in the
Dominion Parliament, or in the
legislatures of the resi)ective pro-
vinces? In Fredericton r. The
Qneen this question directly arose,
and the judgment of this Court pro-
ceeded upon two grounds — 1st,
that the provincial legislature had
no jurisdiction over any subject-
matter not coming within some or
one of the classes of subjects
specially enumerated in sec. 92 of
the Act, and that upon principle
and the authority of the judgment
of the Supreme Court of the pro-
vince of New Brunswick in the
Queen v. Justices of King's County,
2 Pugs. 535, which judgment this
Court aj)provc(l of and affirmed, the
subject of ab.'foluto prohibition of
the sale of intoxicating liquors
(such being the character and pur-
pose of the Act then under con-
.sideration) did not come within any
of the classes of subjects particu-
larly enumerated in and contem-
plated by sec. 92 as being placed
under the jurisdiction of the pro-
vincial legislatures; and, 2ndly,
that jurisdiction over such subject,
that is to say absolute prohibition
of the trade in intoxicating liquors,
was expressly and exclusively con-
ferred upon the Dominion Parlia-
ment by the 91st section, item
No. 2. In Kussell r. The Queen,
wherein the same question arose
as in Fredericton v. The Queen,
the Judicial Committee of the
Privy Council, while proceeding
wholly upon the first of the above
grounds, guard themselves from
being considered as dissenting from
the second ground, upon which tiie
court proceeded in Fredericton v.
The Queen, by the following lan-
guage. [Reads ; see ante, p. 135, end
of judgment.] It has, however, fre-
quently been and stiU is contended

by some, but in my opinion without
any sufficient grounds, that there
are passages in some of the judg
nients of their Lordships of the
Privy Council upon the construc-
tion of the B. N. A. Act which
tend to the conclusion that the
judgment of this Court in Frederic-
ton cannot be sustained upon the
second of the above grounds upon
which this Court proceeded, namely,
the Act under consideration there,
being for the absolute prohibition
of the trade in intoxicating liquors
(although, by adoption of the prin-
ciple of local oirtion), was within
the exclusive jurisdiction of the
Dominion Parliament luider sec.
91, sub-sec. 2 of the B. N. A. Act,
which — [Reads sec. 91, sub-sec. 2,]
'• It is true that their Lordships of
the Privy Council, in Citizens'
Insurance Company i". Parsons, 7
App. Cas. 112 [see post], upon
a very different subject from that
of the prohibition of the exercise of
the trade in intoxicating liquors,
threw out merely the suggestion
that possibly the expression, ' The
regulation of trade and commerce,'
sub-sec. 2, sec. 91, may have been
used in some such sense as the
words ' regulation of trade ' in the
Act of Union l)etween England
and Scotland [6 Anhe, c. 11.], and
as these words in the Acts of State
relating to trade and commerce, but
in construing expressions used in
the B. N. A. Act we must never,
as I have already observed, lose
sight of the fact that those expres-
sions are but the embodiment of
the terms and provisions of the
treaty prepared by the provincial
statesmen assembled in Quebec bv
authority of Her Majesty the
Queen, and concurred in by Her
Majesty's Imperial Government,
for the purpose of federally uniting
the British North America pro-
vinces into one government; and
we must always keep prominently
present to our minds that the object
of the framers of our Constitution
in framing its terms and provisions
was, as abundantly appears from

B.N.A. ACT, R. 92 (9).— FEATURES OF U.S.

173

tlie above extracted passages from
their speeches, to adopt the best
features of the Constitution of the
I'nited States of America, the only
Federal Constitution with which
thev were familiar, and to which
tk'v would naturally look for light
as to what they should adopt, and
what alter and reject, when en-
giigeil in the task of distributing
llie legislative powers between the
Dominion Parliament and the
legislatures of the confederated
provinces, contemplating as they
were the engrafting of what they
considered the best features of the
Constitution of the United States
of America upon the British Con-
stitiitiou, for the purpose of fram-
ing a federal confederacy under one
eentral government. It is to my
mind, with great deference I siiy
it, altogether inconceivable that
the frainers of our Constitution
should have had present to their
minds the Act of Anne, or any Act
of State of the Imperial Govern-
ment ; neither the one nor the other
of these coidd be expected to throw
any light upon the subject in which
they were engaged, namely, the
distribution of legislative powers
Iwtween the central or Dominion
Parliament and the legislatures of
the proposed confederacy, while,
on the contrary, it was quite natural
and to be expected that they should
have Imd constantly present to
their minds the Constitution of the
United States of America, the best
featiues of which they desired to
adopt, and to alter and reject those
whieh did not seem to them to be
desirable to be adopted. We must,
therefore, I submit, be excused if
we confidently affirm that in making
provision for the distribution of
legislative powers between the
Dominion Parliament and the
legislatures of the confederated
provinces, and in such distribution
making provision that the Domi-
nion Parliament should have ex-
clusive jurisdiction in all matters
eoming within 'the regulation of
trade and commerce ' in item No. 2,

sec. 91, neither was the Act of Union
between England and Scotland,
nor any Act of State of Imperial
Government relating to trade and
commerce, ever present to the minds
of the framers of our Constitution,
but that what in fact was so jjresent
was the Constitution of the United
States of America, the best features
of which they were engaged in
grafting upon the British Consti-
tution for the purpose of framing a
new and more perfect Constitution
for the proposed confederacy of
the B. N. A. provinces ; and that
what they intended by the particu-
lar expression under consideration
was to place ' fully and unrestric-
tedly ' (to use the language of the
lute Mr. Geo. Brown above extrac-
ted) unlimited and exclusive juris-
diction in the Dominion over all
matters of ' trade and commerce '
in every part of the Dominion, and
that what they had in view in so
doing was to strengthen the central
Parliament, and lo effect thereby
an improvement in the Constitution
of the proposed confederacy over
that of the United States of
America, the central legislature of
which has jurisdiction only over
inter-State trade and commerce,
and that with foreign countries.
If the framers of our Constitution
bad contemplated conferring upon
the Dominion Parliament only such
limited jurisdiction as that possess-
ed by the Congress of the United
St<ites, they would have had no
difficulty, and, doubtless, would
not have failed, in so expressing
themselves; on the contrary, the
language they have used is of a
most unlimited character, and ex-
hibits no intention of having such
a limited construction. No argu-
ment in favour of such a limited
construction can, I submit, be
fairly drawn from the fact that
jurisdiction is indejiendently given,
by sub-sees. 15, 18, and 19 of sec.
91, over banking, bills of exchange,
interest, and the like, which
may be said to be matters coming
within the classes of subjects

Att.-Oen. of
Ontario v.
Att.-Gkn. op
TiiK Dominion,
&c.

Prohibitory
Liquor Laws.

GwyNNB, J.

'ii

!: i

,■■!

111

■1

Att.-Ou!«. op
Ontario v,
Att.-Geh. op
TUB Dominion,
&c.

Prohibitory
Liquor Laws.

GWYSNE, J.

il I

I i

174

B.N.A. ACT, s. 92 (9).— CONTEARY ASPECTS.

coming under the terms of • Trade
and Commerce,' for tbis repetition
of powers involved in tlie enumera-
tion of items appears to have been
inserted for greater certainty, and
there i.s, I think, nn intention suffi-
ciently manifested on the face of
the Aet that the enumeration of
particulars .should not be construed
so as to limit and restrict the ope-
ration and construction of general
terms in ■which the particulars may
be included. Then it was contend-
ed that a passage in the judgment
of the Privy Council in Hodge v.
The Queen, 9 App. Cas. 117, is in
favour of the contention that the
jurisdiction to declare that the
trades of manufacturing, and that
of importing, and that of selling in-
toxicating liquor shall be illegal,
and shall not Ix^ carried on, is vested
in the provincial legislatures under
sec. 92. If it be, it must be under
the express terms of the Act ex-
clusively so vested. Now the
passage relied on in sujiport of tbis
contention is that wherein their
Lordships say, ' that the principle
established by their judgment in
the Citizens' Insurance Co. v. Par-
sons, and Russell v. The Queen, is
that subjects which in one aspect
and for one purpose fall within sec.
92, may in another aspect and for
another purpose fall within sec.
91 .' What this passage conveys sim-
ply is that a particular subject-mat-
ter may have two aspects in which
it may be viewed, and that viewed
in one of those aspects jurisdiction
over it may be exclusively vested in
the provincial legislatures under
sec. 92, and that viewed in the
other of such aspects jurisdiction
over it, so viewed, may be exclusive-
ly vested in the Dominion Parlia-
ment ; and what I understand their
Lordships by that passage to say is,
that for the purpose of determining
whether a particular subject having
two aspects in which it may be
viewed comes under sec. 91 or sec.
92, regard must be had to the as-
pect in which the particular subject:
:ur the time being under con-

sideration is viewed, not that a
subject which, according to the
true construction of sec. 91, come,s
within one of the cla.sses of subjects
there enumerated, and which is
therefore imder the exclusive juris-
diction of the Dominion Parlia-
ment by the express terms of tbis
section, can nevertheless ))y force of
sec. 92 lie under the jurisdiction of
provincial legislatures. What is
the true construction of the term
* the regulation of trade and com-
merce ' as used in sec. 91, sub-sec.
2, is a matter which of course is
fairly open to argument, and is to
be determined, in my opinion, for
the reasons already given, by ascer-
taining the intention of the framers
of our Constitution, which intent
is, in my opinion, as I have above
stated ; but once it is determined
that a ])articular subject under
consideration does come within
that term, the jurisdiction over it
is vested exclusively in the Domi.
nion Parliament, and, being so,
cannot be legislated upon by a pro-
vincial legislature. There is no
concurrent jurisdiction given to
both, save only over the three sub-
jects specially designated in the
Act as being subject to concurrent
jurisdiction. The subject we have
now under consideration is the
right of absolutely prohibiting the
carrying on of the trades of manu-
facturing, importing, and selling
spirituous liquors, the right, in fact,
of declaripg by legislative authority
that these trades or some or one of
them shall not be carried on, that the
carrying of them on shall be abso-
lutely anlawful. This subject does
not admit of two aspects. Be-
tween pronouncing the carrying on
of a particular trade to be abso-
lutely unlawful, and prescribing
the manner in which and the per-
sons by whom that trade, being
lawful, shall be carried on, there is
a vast difference. Fredericton v.
The Queen and Russell v. The
Queen are cases dealing with the
former of such subjects, and Hodge
V. The Queen and Suite v. Tbi'ee

B.N. A. ACT, 9. 92 (9).— ELIMINATING TRADES. 176

Rivers are cases dealing with the
latter. In Fredericton t*. The
Queen and Russell v. The Queen
the question was as to jurisdiction in
the case of prohibition. In the
former of those cases this Court
held that the provincial legislatures
had not, under sec. 92, any juris-
tlietion to pass the Act then under
consideration, the purpose of which
wus to legislate upon that subject,
and that by force of sec. 91, sub-
sec, 2, the Dominion Parliament
had expressly exclu.sive jurisdiction
to pass it. In Russell v. The
Qawn, their Lordships of the
Judicial Committee of the Privy
Council, while expressing no
opinion as to the applicability of
sec. 91, sub-sec. 2, held that there
was nothing in sec. 92 conferring
on the provincial legislatures juris-
diction to imss the Act in question,
the sole purpose of which was in
relation to the absolute prohibition
of the trade. In Hodge v. The
Queen, on the other hand, they
held that the provincial legisla-
tures bad exclusive jurisdiction
over the regulation of the manner
in which and the persons by
whom the trade, being a lawful
one, might be carried on, a subject-
matter as different as it is possible
to conceive from jurisdiction legis-
latively to declare the carrying on
of the trade to be absolutely un-
lawful. Here, then, we have an
illustration of the application of
the language of their Lordships
in the passage above extracted
from their judgment in Hodge v.
The Queen, namely, if we regard
the traffic in intoxicating liquors
in the aspect of total jurisdiction
of the carrying on of the trade,
that is to say, eliminating it from
the category of lawful trades, in
that aspect the jurisdiction is ex-
clusively in the Dominion Parlia-
ment; but if we regard it in the
aspect of regulating the manner
in which and the persons by whom
the trade, being a lawful one, may
lie carried on in a particular pro-
vince, or a imrticular locality of

a province, that is a subject ex- Arr.-ftBN. of
cuslivelv within the jurisdiction y'*^*"'*' "'

ATT "uEN OB"

of the provincial legislatures. Be- tub Dominion,
tween the judgments in these &c.
cases there is no contradiction, prohibitory
nor have I been able to see in Liquor Lnws.
any of the judgments of their Qwynnb J.
Lordships of the Privy Council
anything which can be said to
manifest judicial dissent from
either of the grounds upon which
the judgment of this Court in
Fredericton t*. The Queen pro-
ceeded. It seems, however, to be
a matter of no importance whether
the question, as to where is vested
jurisdiction over total prohibition
of the trade, is rested upon both
of the grounds upon which this
Court proceeded in Fredericton v.
The Queen, or upon the single
ground upon which their Lord-
ships of the Privy Council pro-
ceeded in Russell v. The Queen.
The report of the i)roceedings in
the Privy Council of the case of
the Liquor License Acts of the
Dominion Parliament of 1883-4
[see above], which has been laid
before us as part of the present
case, contains observations of their
Lordships, recognising the distinc-
tion, which I confess to my mind
appears very plain, between the
right to prohibit the carrying on
of a particular trade, and so to
destroy it and deprive it of lawful
existence, and the right to regulate
the manner in which and the per-
■sons by whom the trade, being a
lawfully existing one, shall be carried
on [refers to remarksof Sir M. Smith
that there was a distinction between
the Act of 1878 and the Act of 1883,
see ante, p. 148], that is to say,
between the prohibition Act under
consideration in Russell v. The
Queen and the Dominion Liquor
License Act of 1883, which was
but a regulating Act. The fact
that the latter Act applied to the
whole Dominion made no difference,
for it may, I think, bo said to be
obvious that the Dominion Parlia-
ment never could acquire juris-
diction over a subject-matter placed

vn -■>:

IM;*'

!l
IP

176 B.N.A. ACT, 9. 92 (9).— SULTE : RE-EXAMINED.

:| I!

Att.-Gbn. of
Ontauio v.
Att.-Qkn. of
TUB Dominion,

&f.

Prohibitory
Liquor Laws.

G WYNNE, J.

> l':im

II i ill

by sec. 92 under the exclusive
jurisdiction of the proviiK-ial ie{;is-
liitures by assuinin}i; to legislate
upon such subject lor the wholt;
Dominion. So lu'ither could a
provincial lej^islatuie ac(iuire juris-
diction over a subject coiiiin<;
within any oiu^ of the classes of
subjects enumeratetl in sec. !)1 by
restricting the ap[)licntion of an
Act of the ])rovincial legislature
upon such subject to the limits
of the province. But it is argued
that neither in Fredericton nor in
Russell was sub-sec. H of sec. 92 re-
ferred to or con.sidered, aiul that,
therefore, their Lordships' judg-
ment in Russell and that of this
Court iu Fredericton are open to
review upon the question of ])rohi-
bition now under consideration.
From the fact that this item was
not relied upon in those cases, it may
fairly be inferred that it ne\er was
considered by the courts or the bar
to be applicable. The jurisdiction
conferred by this sub-section seems
to be that of establishing and main-
taining municipal institutions.
When the ])0vvers of our Constitu-
tion were conferring \ipon the pro-
vincial legislatures exclusive juris-
diction to make laws in relation to
' municipal institutions in the pro-
vinces,' they had no doubt in view
municipal institutions such as
existed at the time of the Federa-
tion. But this sub-.sec. 8, sec. 92,
says nothing as to the powers with
which such municipal institutions
may l)e invested; that seems to
have been left to the discretion of
the provincial legislatures to be
exercised within the limits of their
own jurisdiction, and would reason-
ably comprehend within such limits
all such powers as were then [)os-
sessed by such municipalities, and
which were essentially necessary to
the good working of such institu-
tions, as had already been possessed
by all such institutions, a-;, for ex-
ample, the power of issuing licenses
to the persons to be engaged in the
traific of intoxicating liquors, and
the power of regulating the manner

in which sudi persons should carry
on tli(! trade in shops, saloons,
hotels, or taverns, which, as Ijcinf;
matters of a purely provincial,
municipal, and domesti(r character,
were subject to the jurisdiction over
which was intende(l to be exclusive-
ly vested in the provincial legisla-
tures; and this is wliat Suite v.
Three Rivers decides, and what was
intended to be conveyed by the
passage from my judgment in that
case [11 S. C. R. at p. 43], which
was cited by the learned counsel
who argued the case upon behalf of
the province of Ontario. But a
special power only then recently
for the first time conferred upon
municipalities in the province of
Canada, and which had never been
conferred on municipalities in any
of the other jjrovinces, could never
be .said to be a ])Ower essentially
necessary to the good working of
such institutions; such power there-
fore cannot be held to be compre-
hended in sub-sec. 8 of that .sec-
tion. In this subject is involved
the particular consideration of the
last of the questions submitted to
us, namely, whether the IHth sec-
tion of the Act of the Legislature of
Ontario, 53 Vict. c. 56., is or is
not tiltra vires. The jurisdiction
assumed to be exercised by the
Ontario Legislature in this section
is not a jurisdiction which is
claimed to be conferred upon pro-
vincial legislatures by anything
expressed in sec. 92 of the B. N. A.
Act, but a jurisdiction which is
contended to be impliedly vested in
the Ontario Legislature, arising
from the fact that municii)alities in
the late province of Canada had at
the time of confederation, by virtue
of special Acts of the legislature of
that province, power to prohibit, by
bye-laws to be passed and adopted
in the manner prescribed by the
special Act, the sale by retail of
spirituous liquors within the limits
of the municipality passing such
bye-laws, a power which was not
possessed by municipalities in the
province of Nova Scotia or in that

J Hill

B.N. A. ACT, s. 92 (9).— ONTARIO'S POWERS.

177

of New Brunswick ; and .such Acts
iH'ing rei)Oivlc(l, it is contended that
tlicLt'gisliiturc of Ontiirio has juri.s-
iliition to revive their provisions.
That the legishiture of the late
nrovinw; of Cana(hi had juriscHction
to [MisH ft" Act in prolubition of
nil trnflie in intoxicating liquors
or in any otlier article of trade
niav lie admitted to be unque.stion-
ftljfp, but I ai)i)rehend it cannot
ftilniit of doubt that unless the pro-
vincial legislatures have, all of them,
under their newConstitution.s, juris-
diction to pass an Act de novo for
tjio purpose of prohibiting absolutely
within their respective provinces
the snie of intoxicating liquors, the
Legislature of Ontario lias no special
jurisdiction to invest nnuiicipalities
with .such a power by passing an
Act purporting to revive the pro-
visions of an Act passed by the
legislature of the late province of
t'anadii within its jurisdiction, and
which conferred such a power upon
municii)alitie.s of the said late [)ro-
vincc of Canada. The qnestion,
therefore, involved in the 7th ques-
tion is precisely the siune as that
involved in the 1st and subsequent
fiuestions, namely — have pro\in-
cial legislatures of the Confederacy,
under their new Constitution, juris-
diction to make laws in prohibition
of the trades of numufacturing, of
imijorting, or of selling spirituous
li(inors by wholesivle or by retail.
The precise history of the legisla-
tion recited in the 18th .section of
the 53 Vict. c. 50. (Ont.), and
niwn which the legislature of that
province rest the jurisdiction as-
sumed by them in enacting the
provisions of that section, is as
follows:— The legislature of the
late province of Canada, by a
special Act i)as:3ed in 1864, 27
[ & 28 Vict. c. 18., conferred power
i upon the councils of municipalities
jtoj)ass bye-laws in prohibition of
the sale of intoxicating liquors
prithin the limits of the munici-
ility, subject to certain conditions
I involving the adoption of the prin-
jciple of what is called local option.

S 2340.

In the consolidation of the statutes Att.-Gen. op
of the late j)rovince of Canada, the Ontahio v.
provisions of the said Act 27 & 28 J^DoMiMOK.
Vict. c. 18., were consolidated in ^f.^
one of the chapters of the con.soli- Pi-ohibitory
dated statutes as sec. 249, sub-sec. Liquor Ijxwh.
9, of the Consolidiited Miinici- Owvnne .1,
pal Act, namely, 29 & 30 Vict,
c. 51. The whole of this section
249 was expressly reiiealed by an
Act of the Ontario Legislature
passed in 18G9, 32 Vict. c. 32.,
but its terms were inadvertently or
by design repealed in .sub-sec. 7 of
sec. 6 of the latter Act. In 1874
the Legislature of Ontario passed
another Act, 37 Vict. c. 32., enti-
tuled 'An Act to amend and con-
soli(hite the law for the side of
fermented and sjiirituous litpiors,'
and thereby the said Act, 32 Vict.
c. 32., and another Act, 32 Viet.
c. 28., and also an Act, 36 Vict,
c. 48., entituled ' An Act to amend
the Acts resiiecting tavern and .shop
licenses,' were wholly repealed, and
new pro\isions were enacted ; but
among such provisions there was
nothing of the nature of the pro-
visions which had been in sub-sec.
7 of sec. 6 of the repealed Act, 32
Vict. c. 32., but in lieu thereof pro-
vision was made for regulating the
issue of licenses for the sale of in-
toxicating licpiors in each muni-
cipality by an officer to be ap-
pointed by the Lieutenant-Gover-
nor, to be called • The Issuer of
Licenses.' Now upon, and from
and after tlie passing of this Act,
the only authority, if there was
any, which municipalities in the
province of Ontario had, or could
claim to have, to pass a bye-law in
prohibition of the .^ale of intoxica-
ting liquors, was in virtue of the
provisions of the above recited Act
of the legislature of the late pro-
vince of Canada, 27 & 28 Vict,
c. 18. of 1864, and of sec. 129 of
the B. N. A. Act, which enacts —
[reads it; see post^. It being,
then, only in virtue of this Act, 27
& 28 Vict. c. 18., that mnniciiiali-
ties in the province of Ontario
possessed the power to pass bye-

i\ '■ i
!! 1 :

i' ■ '■

i- '

178

B.N.A. ACT, 8. 92 (0) —DOM. LEGISLATION.

Att.-Gi». ok
Ontario v.
Att.-Gkn. o»
TUB Dominion,

Prohibitory
Liquor Laws.

GWVNNE, J.

laws in prohibition of the sale of
intoxicatinn licniors, such iiower
nui.st neccssiiriiy absolutely cease
upon the repeal of that Act. But
in 1878 the Dominion Parliament,
regarding jjrohibition of the sale of
intoxicating licjuors to Ik; a subject
over which exclusive jurisdiction
was conferred upon the Purliument,
and in exercise of the right re-
served to Parliament by said sec.
120 of the B. N. A. Act, passed
the Canadian Temperance Act,
1878, whereby, as it is recited in
the said 18th section of the On-
tario Act, 53 Vict. c. 56., the above
Act of 1864, 27 & 28 Vict. c. 18.,
was absolutely repealed save as re-
gards localities where the Act had
then alremly l)een acted upon, and
power is conferred by the Act of
1878 upon all electors in every
municipality in everj' jiroviuce of
the Dominion, qualified and compe-
tent to \ ote at the election of mem-
bers of the House of Commons,
upon certain conditions, and in
adoption of the principle of local
option, to prohibit the side of in-
toxicating liquors in ever}- munici-
pality adopting the provisions of
the Act. This Act as an Act in
prohibition has l)een held by the
Judicial Committee of the Privy
Council in England in Russell v.
The Queen, and in this Coiu't in
Fredericton v. The Queen, to have
been within the jurisdiction of the
Dominion Parliament, and not to
have been within the jurisdiction
of a provincial legislature. The
object sought to be obtained by the
said 18th section of the Ontario
statute, 53 Vict. c. 56, would seem
to be to re-open the question adju-
dicated upon in those cases, and
mainly upon the suggestion that
sub-sec. 8 of sec. 82 of the B. N.
A. Act was not considered by the
Judicial Committee of the Privy
Council, or by this Court, in those
cases. In my opinion, there is no-
thing in this sub-sec. 8, sec. 92, or
in any [mrt of the B. N. A. Act,
which calls for or justifies any
qualification of the language of

their Lordshijis of the Privy Couii-
cil, as above cited from their jiidjr.
ment in Russell v. The Qiiccii;
and the principle established In
that judgiui-nt is, in my opinion,
that jurisdiction over the jiPdliilii.
tion of the trade in intoxicatiii"
liquors, whether it be in the iiiiiun.
facture thereof, or in the importa-
tion thereof, or tiie sale tluMvof,
either by wholesale or retail, is not
vested in the provincial legislatuivs,
but is exclusively vested in tlie Dd.
minion Parliament. If the [n- ,in-
cial legislatures have jurisdictidii
to prohibit absolutely the sale of
intoxicating liquors, it must, I
think, be a<lmitted that they Lave
like jurisdiction over the manufac-
turing and also over the impoita-
tion thereof ; nay, more, as tin- Act
givesthem no more jurisdiction ovci
the prohibition of the exorcist; of one
trade than another, lliey wouM
equally have jurisdiction to pid-
hibit the manufacture of tohaccd,
cigars, &c., the importation of
opium, and the manufacture, im-
l>ortation, and sale of any article of
trade, and so, in fact, they would
have that sovereign legislative
jurisdiction over every trade, and
over those general subjects in
which the people of the contVdi-
racy as a whole are interested, and
thus the main object which tlif
authors and founders of tiie con-
federacy had in view in IVaiiiiii^'
the terms and the pro\isions of
our Constitution as to the distiilui-
tion of legislative jurisdiction over
the Dominion Parliament and tin
legislatures of the provinces wouM
lie defeated. In addition to tlu'
ground ujion which their Lord-
ships of the Privy Council pi"
ceeded in Russell v. Tiie Quieii,
this Court held, as already obser-
ved, in Fredericton v. The Qhwd
that exclusive jurisdiction over the
prohibition of the sale of spirituous
liquors, which was the subject-
matter of legislation in the Cauada
Temperance Act, 1878, was a sub-
ject placed expressly under the
exclusive jurisdiction of the Do-

B.N. A. ACT, 8. 92 (9).— MARRIAGE, Ac.

179

minion Purliament bv sec. 91, siib-
sec. 2, "f till' B. N. "a. Aft. TImt
juilHiiii'iit Ims never been reversed,
nor, in my opinion, simken, nnd
wiiiii' it xtimd.s nnreversed l)V Ini-
|it>rial Jiiitliority, I cDnsidei- tliis
('oiiit to be l)()iind by it. II' e\'er
it sliould be reversed, it will, in my
(ipiiiidu, be a mutter of deep ref^ret,
lis (Ict'eiiting the plain intent of the
traniorsof our Constitution andim-
|K'riilin<; the suceess of the scheme
(if cenfederation. I'^pon the whoU',
then, ill answer to the several cpies-
tions sulimitted to us, I am, for the
icasous above stated, of the opinion
that upon principle — that is to say,
upon the true con.struetion of the
B. X. A. Act apart from all aii-
thoiity — and upon authority, that
is to say, u])on the authority of the
jiidjiment of the Privy Council in
Ibissoll r. The Queen, apart from
Fmlericton v. The Queen, and
upon the authority of the judgment
(if this Court in Fredericton r. The
Queen, apart from Rus.sell v. The
tiie Queen, several tpiestions sub-
mitted to us must be all answered
ill the negative."

Sedgewiek, J. : " A studv of sec-
tions 91 and 92 of the B". N. A.
Act leads one to th«' conclusion
tiiiit the following proposition may
1h' safely ado[)ted as a canon of
cunstniction, namely, when a gen-
iTtil subject is assigned to one
iegislaliire, whether federal or pro-
vineial, and a [larticiilur subject
forming part or carved out of that
SJenerul subject is assigned to the
other legislatures, the exclusive
right of legislation, in respect to
the particular subject is with the
liitter h'gislature. For example,
Parliament has ' niprriage,' but the
legislatures have the ' solemnization
of marriage.' On that subject they
are paramount and supreme. So,
too, the legislatures have ' [jrojierty
and civil rights,' words in them-
selves as wide almost as the whole
tieid of legislation ; but imrcelled
out from that wi<le field, Parliament
has a iiuiiilH>r of particular and
^Iteeitie subjects where it likewise

is paramount and supreme. Among Att.-Obn. oi'
them is the • regulation of trade and Cntakio v.
.■omnjeive.' So far, Parliament has i^^^^ZZ..
complete and e.vclusive jurisdiction ^1;.^.,
as to that. But we have to go fur- „ , •, ■.
th((r. We have to turn again to [,i,.,ior Li,ws.
.sec. 92, and wo find that shop,
saloon, tavern, auctioneer, and other
licenses, a subject carved out of
' trade and commen'e,' is given to
the legislatures. If the principle
above enunciated is sound, then
Parliament can only regulate the
liipior trade, or legislate in resiiect
to it, subject to the paramount and
controlling right of the local legis-
latures in respect to liquor licenses
for revenue purposes. The enu-
meration and assigning of the par-
ticular subject to the one ])ody over-
rides and controls the other Inxly,
although charged with the general
subject, and that, too, without refer-
ence to the question of subordina-
tion or co-ordination Iwtween the
two bodies. Another principle of
eonstructionin regard totheB. N. A.
Act must be stated, namely, it l)eing
in effect a constitutional agreement
or compact or treaty between three
independent communities or com- SEnoEwicK.J.,
monwealths, each with its own jmr- ^°^ invHlidity.
liamentarv institutions and govern-
ments, effect must, as far as possibh',
be given to the intention of these
communities when entering into the
compact to the words used as they
understood them, and to the ob-
jects they had in view when they
asked the Imi)erial Parliament to
pass the Act. In other words, it
mu.st lie viewed from a Canailian
standpoint. Although an Imperial
Act, to interpret it correctly refer-
ence may be had to the phrase-
ology and nomenclature of precon-
federation, Cana<Jian legislation, and
jurisprudence, as well as to the his-
tory of the Union movement and to
the condition, sentiment, and sur-
roundings of the Canadian people
at the time. In the B. N. A. Act
it was in a technical sense only
that the Imperial Parliament spoke ;
it was there that in a real and sub-
stantial sense the Canadian people

M 2

r^^w

180 n.?f.A. ACT, s. 02 (})).— PERPE TIT I TY OF RIGHTS.

Att.-Okn. ok
Ontmiio I'.
Att.-(Ibn. of

TIIK |)l)MIS10N,

IVdliiliitory
l/i<liioi' LiiwH.

Si'.DiK.WrCK, .1.

ill !

:l' !

Ill :|1!^

1 1 ' ■

» ' ■

sjidkc, mill it is to tluur lan;{nii}{i'
IIS Ihcy nmlt'istood it timt effect
imist he {^iveii. Cmi a local iefjis-
ImIiii'c al)S()liilely |ii'o|iiliit tlu; trattlc
ill itit()\i( Mlin<; li(|iii)rs? Thai is
tlie siilislaiitial <|iieslioii liel'ore lis.
Tlie correct solution of the pi'olilein
is lai'i^ely aU'ecteil (alllioiif^li not
(loiicliKJed) liy llie niciiiiin}; tliiit is
to 111' fxivcn to till' words 'the rcj^ii-
liition ol' trade tiiiil coninieree' in
sec. 1)1. That these words in their
plain and ordinary nieanin}r ar(>
wide enoii<;ii to iiiclnde tlie liipior
trallie is uniinestioned. Tlu> iniik-
in<{ ol' li(|noi', its sale, that is a
trade fir hnsincss; thedealinjis in it,
the linyiiif; and .selling of it for pur-
poses of protit, that is conunerci'.
JJiit was this particular trade, the
lifpior liiisincss, intended to he in-
cluded in the general words ? That
is the (|nestion. And, as I liiive
already siiggestoil, the true answer
is to he sought not so much from
the rules of statutory construc-
tion laid down in the text-hooks
in regard to ordinary enactments, as
hy reference to provincial statutes
and jurisprudence at the tinu! of
the I^nion, and to the circiuiistances
under which that Union, as well as
its ])urticular character, took shnix!
and form. It was in IHG-l the Que-
hcc Corventioii was held ; l^pper
and Lower Canada, Novii Scotia,
Ncnv Brunswick, Prince Edward Is-
land,and Newfoundland, were repre-
sented. TheQuehec re.solutionswere
jiassed, and these resolutions hav-
ing lieen ndojitcd hy the three
legislatures of Canada, Nova Scotia,
and New Uriniswick, formed the
hasis of the Union Act, 1H67. The
l^nion was a federal, not a legisla-
tive l^nion. The English sjieak-
iiig jirovinees (considering Uiiper
Canada as a province) were in the
main iu favour of a legislative
Union, but Lower Canada, pro-
perly tenacious of ' its language, its
institutions, aud its laws,' secured as
they had been by international treaty
and Imperial enactment, desired a
provincial legislature in onler to
the perpetuity of these rights,

rights which it was thought niii;lit
heinvaded were they to he left to the
mercy of a sovereign and untriiin.
iiielled legislature, the large majoiitv
of which would necessarily heloni;
to the English-s|H'aking race. And
.so the ipiestion was a federal Union
or none at all. That being deciilnl,
the <|iiestion of distribution of
jiowers arose. To what powiiN
shall the Federal Parliament sue-
ceeil ? what powers shall the |ii'ii-
vincial legislatures retain ? Tlu'
American Civil War was just clns-
ing, a conllict which, from a le^^al
standpoint, had its origin in a ilis-
piite as to the Constitution of tiii>
United States, the (pu-stioii of
Stiit(^ rights ; that controversy was
not to be a ground ol .<trife in tlii'
new nation, and .so, iir.st and fore-
most, it was agreed that tlui centnil
Parliament was to have iileiiniy
legislative authority, and tliiit llie
local legislatures should have juris-
diction over such subjects aloni' iis
were expressly enumerat«Hl ami in
terms a.ssigned to them. I linvi'
said that the Lower Canadian ilclo-
gates were determined to maintain
their peculiar institutions by menus
of a local legislature, but they were
none the less desirous of givin<; tlio
central authority all jnrisiliction
compatible with that determiniition,
including generally those siibjods
that woulil he common to the whoii'
('anadian people irresijcctivo of
origin or religion. Now, the Euf;-
lish criminal law was the law of
Lower Canada ; it had beronio
part of that law in 1764, and Lowir
Canada was .satisfied with it. It
would, therefore, be the common
heritage of the New Dominion,
and by common con.sent it was
given as a subject of jnrisiliftion
to the central I?arliament. Tliou,
toii, the Lower Canadian Legisin-
tm-e and peo[)le had long previously
adopted of their own free will the
general principles of English com-
mercial law. As early as 25 Geo.
3. (1785) they had made the liiw.s
of England the rules of eviilence
in all commercial matters. They

B.N.A. ACT, 8. 92 (0).— REGULATION INCLUDES. 181

liml luloptwl iiracticnlly witliout
Miriiitioii till- Eiif;lisli law respect -
iiii' liills ol' exelmn}j;i' ami promissory
niilcs, partnerships, tlie limitation
(it'actiiius ill eommercial eases, ami
cvca llie Statute oi' Fraiuls. In IHUI
tlii'V iiail accepted a f^eiieiiil law of
liiiiiiviiipti'y, limited, however, to
ti'iidi'i's only, and had pnniunsly
mlopti'd llie practice ol' the English
courts in the trial ol' commercial
nisi's; coiiiinereial law was not in
tliat class of institutions and laws
wjiii'li llicy regarded as peculiarly
liit'ir own, and they were willing
uiid anxious, seeing how tlu* future
|ir(if,'ri'ss and prosi)erity of the
coiiiitiy would largely depend upon
its trad" and commerce, upon the
jjniwtli, luannfacture, and inter-
ciianj;!' of conunodities throughout
the whole Dominion, irrespective

,;-.:l

uiitraniinelled by [(roviiicial

hoiindarics or provincial eiiaet-
uiciits, that the Federal Parliament
slionld alone legislate in respect
thereto, so that us there wouhl be
n cuiniiion criminal law throughout
Ciiiiada, there should he a ctunmon
coniuieirial law as well. And that
WHS, in fact, the common aim and
(ilijwt of all the provinces. But
liow give expression to this aim ?
hi making that dear what form of
wnnls should lie used ? A cpies-
tiou not diillcult of .solution. Five
yi'Hi'.s previously tlu^ statute law of
tilt' llicu [irovinee of Canada had
Ikcm revised, eon.solidated, and
ilnssified in three volumes, one
\oliiiiie containing the statute law
loiiiiiioii to the united province,
tlu' others the .statute lawapidicahh!
exclusively to Upper and Lower
Ciiiiadu resiH'ctively. This revision
imd classification, the work of the
most eminent jurists in tlie pro-
ving, becume, by Act of Parlia-
iiirat, the statute hiw of the eonn-
tiy, the ela.ssifieation having tlu'
siime legal force as the statutes
classified, just as if there liad been
H substantive enaetnient to the
effect that thereafter in Canatlian
legislation the speeifieatiou of a
general subject iu the general elus-

silicntion should include all the sjie- .Vi-t.-Cikn. op
eitic and iiarticnlar siibiects enn- "■'"'^i"" ''■

, 1 1 ,1 , • • ,• .\TT.-(lKN. Ill'

inerated under tiiiit speciiication.
Headiii'' this (dassilicatioii in the

illK DuMIMDN,

iVc.

three volumes referred to, and com- p,.„i,iijit„vy
paring it with sees, !)1 and 5)2, in- i,in„„r biws.

dubitable evidence will be found
that the compilers of the (^uebei
resolutions were largcdy aided by
the work of lH5!)iii iln',s(declioiiof
words by whi(di the ill iriiiiition of
powers was described. The lan-
guage of a large proportion of the
45 enumerated subjects is substan-
tially identical with the language
of the classillcatiou in the Caiiadiiiii
con.solidation. Now let ns examine
this classiiication. In the consoli-
dated statutes of Canaila, the whole
sunject-mattei' of legislation is divi-
ded into 11 titles, of which 'Trade
and Commerce' is the Itli. Under
this title are included, among
other subjects, navigation, inspec-
tion laws in relation to lumber.
Hour, iK'cf, ashes, (ish, leather,
hops, itc., weights and measures,
banks, promissory notes and bills
of exchange, interest, agents, limi-
ted partnerships, and [lawnbrokers.
In the consolidated statutes of
Upper Canada, under ' 'J'raiU' and
Commerce' are included, among
other subjects, commereial law,
written promises, chatt(!l mort-
gages, and trading and other com-
panies. And in the con.soliibitcd
statutes of Lower Caiiiuhi, uiitler
the .same (K'sigmition of ' Tradi'
and Commeree ' are imdiidiMl
the inspection of butter, the iiiea-
.surenieiit an<l weight of coals,
hay and straw, partnerships, the
limitation of actions in commer-
cial eases, and thi^ Statute of
Frauds. Let ns now turn to Nova
Scotia. A few weeks before the
Convention in Quebec the No\a
Scotia Legislature had passe<l tlu^
Kevised Satntes of Nova Scotia,
3''d Series, diviih'd, as in the
cu.si! of Canada, into parts, titles,
and chaiiti'rs. One of th- titles is,
' of the regulation of trade in certain
cases,' and under it are, among
others, the following subjects: —

JUO

Skdokwick, J.

'■ M

I MM

182 B.N. A. ACT, s. 92 (9).— PARSONS' CASE EXAMINED.

I ;

i !

Att.-Oen. op

O.NTARIO t'.

Att.-Gen. of
THE Dominion,
<S:r.

Prohibitorj'
Liquor I/iws.

Sedoewick, J.

i i\

PnrtmM'ships, factors iiiul iigcnts,
bills of pxolmngc, currcncv, mills
and millers, regulation and inspec-
tion of merdiandise, weights and
measures. This classification was
jtractically the .same in the tirst
revision in 1851, so that for at
least thirteen years the expression
' regulation of trade ' had no un-
certain meaning. In the Revised
Statutes of N»'w Brunswick of
1851 there was practically the
same clussilication. Under 'the
regulation of trade in certain
ca.ses' were included stiitutes re-
lating to lime, bark, flour, weights
and measures, and lumber, the In-
tt^rpret«tion Act, c. 161. s. 35,
('UHcting that parts, titles, «ic.,
should be deemed as parts of the
statutes. It will be observed that
in no case is reference made io the
liipior traffic under 'trade and
<'onnuerce' cr 'regulation of
trade.' In the Canadian Con-
solidation it is placed under 'Re-
venue and Finance,' sub-head
'[)roviucial duty on tavern keep-
ers.' In the Upper Canada Con-
soliflation it is referred to in the
Municipal Act, c. 54., 1866, and
in two ways : first, under the head
of ' shop and tavern licenses ; '
and, secondly, under the head of
' prohibited side of spirituous
liipiors.' In the Lower Canada
Consolidation it is referred to
under ' fiscal matters.' In the
Nova Scotia revision under 'the
public revenue ; ' the Revised Sta-
tutes of New Brunswick containing
no chajrter regulatirg the li(pior
traffic. Now, we have here, 1 think,
a clear indication of what at tlie
time of confederation the Canadian
IH'ople and legislature understood
to "^' iiu'luded witiiin the words
'tn I. and conunerce.' They in-
cluded unciuestionably the carry-
ing on of particular trades or
businesse.'i, and, I think, commer-
cial law generally. The actual
legislation under 'trade and com-
merce ' in regard to certain staple
articles of commerce, .such as
brea<l, rtsh, coals, &c., indicates

that any other legislation in t}"-
saine line respecting any oilier
article of commerce would come
under the siune description , so I
take it that the regulation of the
liquor traffic, wliether by licensiiijj
it or prohibiting it altogether, liiis
to do with ' trade and coinmercc.'
Such being the state of the exist-
ing legislation, and the view that
the different legislatures had of
the all-inclusiveness of the phrases
'trade and commerce' and 'regu-
lation of ti-ade,' what better collo-
cation of words couhl be used for
the ])urpose of making it clear
that Parliament was to have ex-
clusive jurisdiction in all matters
relating to trade and relating to
conunerce, including the inipurtii-
tion, manufacture, and sale of all
kinds of commodities, than that
combination of the two phrases,
the one from the .seaboard, the
other from the inland provinces,
to be found in sec. 01, 'the regu-
lation of tra(h' and commercp.'
And the words having that inenii-
ing having been placed there for
that object, are we not bound to
give tlu'iu the intended effect? I
am not attempting even to criti-
cise the correctness of the conclu-
sion to which their Lordships of
the Privy Council came in Citizens'
Insurance Co. i". Parsons ease.
I nu»y be permitted, however, with
all deference, to suggest that some
of the considerations to which I
have referred \vere not presented to
their Lordships when the effect of
the words under review was \w-
ing discusseil. All I suggest is
that, inasmuch as the B. N. A.
Act was an Act materially affo<'t-
ing, nuidifying, repealing pre-exist-
ing Canadian statute law, and re-
volutionising the constitution of
the component provinces, in inter-
jtreting that Act referenct> may ami
must be had to [jfovincial statute
law rather than to Im|)erial statute
law, and that where, as in the pre-
s(>nt case, the constitutional Att
uses a phrase which for years had
had a well-defiued meaning iu Cona-

B.N. A. ACT, ». 92 (9).—" COMMERCIAL," WHAT ? 183

(lifin IcgLilntion, that i.s th(.' mean-
ing which shonhl be given to it
wlieu used in that Act. And I
liavc this further observation to
maice. The judgment referred to
contains the following: 'If the
words (trade and commerce) had
Uen intended to have the full
scoije of which, in their literal
meaning, they are susceptible, the
speiifif mention of several of the
rither classes of subjects enume-
rated in sec. 91 would have l)een
unnecessary; as 15 banking, 17
weigiits and measures, 18 bills of
ixeliange and promissory notes,
19 interest, and even 21 bank-
niptcy and insolvency.' Now cir-
cumstances existing in Canada,
the tiien state of jurisprudence,
tor example, rendered it wise, if
not absolutely necessary, that the
classes just referred to should l)e
specifically mentioned. The pro-
vinces had ' property and civil
lights' given to them. In one
phase or another almost every
cnaetuient in some way affects pro-
[lerty and civil rights ; the raison
d'etre of constitutional society,
the motif of the social coutiuct, is
tlie protection of property and civil
lights. Criminal law, fiscal law,
commercial law, in fact, all law at
some point or in some way, touches
ir affects property and civil rights.
Leave out several of the stibjects
mentioned in sec. 92 and there
would iiave been a perpetual con-
flict between 'property and civil
lights ' on the one hand, and many
"f the enumerated sidijects of sec.
1)1 on the other ; so wisdom sug-
gested ex abundanti caiitela what
was done.

" Besides, in Lower Canada there
'litd been a long course of juris-
prudence as to what constituted ' a
lommercial matter.' Some business
transactions were held to lie com-
iiiercial matters, others not. In a
ilispute between an officer of the
Britili Army and his wine mer-
'liant, a promissory note given for
II wine bill was held to be a non-
commercial matter. So, I suppose,

interest on such a note would be Att.-Gen. of
held to be non-commercial. Nor ^'niarjo v.

would the case be altered if the ZZ'^^' ""*

. 4 1 i u I ^"*' Dominion,

note were discounted at a bank. ^-^.

All these questions, and difficult ProbiMtorv
and important many of them have Liquor Laws.
been, were wisely ended, so far as sr,m ewick, J.
the Constitution was concerne<l,
when banking, l)ills and notes and
interest were expressly given to
the Dominion. So, too, with
weights and measures, the duty of
making bye-laws or enforcing sta-
tutes in respect to weights and
measures was in some cities and
provinces under munici^jal control.
The question would be. Is this sub-
ject a matter of 'trade and com-
merce ' or a municipal matter ? Its
insertion in sec. 9 1 settled it. And,
lastly, as to bankruptcy and insol-
vency. This subject was wisely
inserted in sec. 91, in view of the
fact already pointed out, that in
Lower Canada bankruptcy legis-
lation applied to traders only (the
phrase 'insolvent' being limited
in its use to non-traders); and in
view, too, of the further fact that
in the jurisprudence of the XTnited
States, where the Constitution gave
'the matter of bankruptcies' to
Congress, it was held that 'insol-
vency ' belonged to the State legis-
latures. The insertion of both in
sec. 91 settled for Canada that
particular question. I have ven-
tured to make these observations
merely with the view of inviting
further consideration and investiga-
tion as to the proper functions and
jurisdiction of the federal autho-
rities in regard to ' trade and com-
merce,' autl to the line of delimi-
tation between that subject and
'property and civil rights.' As-
suming, however, that the pro-
hibition of the liquor traffic is a
matter of ' trade and commerce '
the question is not ended. ' Pro-
l)erty and civil rights' is controlled
by • regulation of trade and com-
merce ' ; but is there anything in
sec. 92 which controls or modifies
• trade and commerce ' ? In my view
ther> smuch, First there is * Direct

., j

' ■-] .i ■

184 B.N. A. ACT, s. 92 (9).— A FALLACIOUS THEORY.

i'-

1 !

ATT.-CrEN. OF

Ont.vkio V,
Att.-Gkn. of
THE Dominion,

&c.

Prohibitory
Liquor Liiws.

.Seugewick, J.

tiixiitioii within the province in
order to the raising of a revenue
for provincial purposes.' That in-
volves the right of taxing, even
unto (letith, institutions incorporated
under Dominion law (as was decided
by the Privy Council in Bank of
Toronto v. Lanibe, 12 App. Cas.
575) [see ante, sub-sec. 2], .such in-
stitutions obtaining corporate rights
in all cases excepting banks, not
bccan.se of any express powiu's
given to Parliament, but either
under 'trade and commerce' or
under its general authority to legis-
late in respect to ' jjcace, order, and
good government,' it being clear
that the legislatures may incorporate
such companies us are formed for
provincial objeetsonly [sub-sec. 11].
Secondly, there is sub-sec. 9. ' Sho[),
saloon, tavern, auctioneer, and other
licenses, in order to the raising of
u n!\'enue for provincial, local, or
municipal purposes.' The effect of
this sub-sectiou is practically to
give the regulation of the liquor
traffic to the legislatures. vSo long
as such regulating legislation has
as its main object the raising of
revenue, it may contain all po.ssible
safeguards and restrictions as
ancillary to the main object, the
effect of Avhich may be to repress
drunkenness and promote peace,
order, and good government gene-
rally. If, however, a fair examina-
tion of an Act purporting to be
of this kind leads inevitably to
the coi elusion that the object of
the legishitnre in passing it was not
the raising of revenue and the
licensing and regulating of the
traffic for that i)urp()se, but the
"'inuression of the traffic altogether,
in other words, that it was intemleil
to be not regulative but prohibitory,
such an Act will find no support
for its validity from this sub-section,
— I will presently incpiire whether
that support can be found else-
where—and, a fortiori, the legis-
latures umnot uiiiler this article
pass an Act of absolute prohibition,
for that woidd Ik; in direct conflict
with the expressed object for which

the power was solely given. The
destruction of the traffic would en-
tail the destruction of the revenue,
not the raising of it.

"Except for the decision of
the Judicial Connnittee in Russell
V. The Queen, 7 App. Cas. H2J) [see
ante, p. 129] — the Scott Act cn.se
— much might be said to favour
the view that the right of the legis-
latures to regulate the liquor traffic
for revenue purpo.ses was unlimited,
and could not be taken away hy
virtue of anything in sec. 91,
whether ' peac«', order, and gixxl
govermnent,' or 'trade and coiii-
meice,' or even 'the criminal law';
that the central Parliament could
not by virtiie of any of its powers
destroy a si)ecial power given to tlic
local legislatin-es for a siH'cial and
particular piu'pose, and that the
Scott Act (Russell v. The Qneeu)
itself was an infringement of the
provincial rights. It might lie
urged that neither body could of
itself, by virtue of its given powers,
pass a pi'ohibitory law, but that in-
dependent legishition on the piirt
of both would be neces.sary, the
Dominion passing an Act prohibitinji;
the traffic in so far only as it had
right to prohibit it, but reserving
to the provinces the fullest aud
freest right under sid)-sec. 9 to raise
revenue from it, and the provinces
thereon passing legislation abro-
gating the license system, and sur-
rendering their right to revenue
from it. The theory that if, under
our Constittition, one body cannot
pass an Act upon any given sulijeet
the other necessarily can, is a
fallacy. A subject may 1h' so com-
posite in its character, may be
formed of one or more elements as-
signed to the one legislature, and of
one or more elements assigned to
the other, that neither one can
effectually deal with the couihiim-
tion. For example, neither h'gis-
latme t-ould pass an Act abolishiuft
the direct taxation for muuiciiwl
[uuposes and authorizing the raising
of re\ enue by nieiuis of octroi, or
imposts, upon all goods coming iu

B.N.A. ACT, s. 92 (9).— PUBLIC MIND AT UNION.

185

through the city gtites, or iiii Act
mithoriziiig a proviuee to raise aud
t'oUei't its reveuue by iudireet taxa-
tion, riiis disability is a necessary
iucidi'iit of the feileral system, and,
if it is to l)e got rid of, that can
only b*! ctfected by abolishing the
s\stcm itself. The \iew which has
|iivsst'(l itself npou my mind is
that prohibition may be a, (jnestion
of tiiat character, but a.s it was
not so held in llussell v. The
Qufi'U, and as it does not subshm-
tiiilly affect the result of this refer-
eiicr, I take it for granted that the
fullacy to which I ha\e referred
is not an element in the [)resent
case. The (luestion now arises :
Is the general right of the Federal
Parliament to legislatt! in regard
to the liquor traffic further re-
strained by sub-sec. 8 of sec. 92,
'municipal institutions in the pro-
vince ' ? In other words, can a
provincial legislature, by virtue of
that sub-section, absolutely prohibit
tile tratru! ? At the time of the
Union, the province of Cana(hi had
given to municipalities in both
sections the right of pa.ssing bye-
laws prohibiting the sale of litpior.
In that province there was also
then in force an Act known as the
' Uunkiii Act,' an enactment similar
in scoik; and object to the present
Canada Ti'mperance Act, the prin-
ciiiie of local option being allowed
til operat(! to its fullest extent.
Hut ncitli'.T in Nova Scotia nor in
New B:i):'s\ick (as I understand
tlie facts) did local oi)tion i)revail.
It is true that an a[)j)licant for
license lii.d to comply with certain
conditions, one of them, in Nova
Scotia, Uuug that his aijplication
liad to be accompanied by a [jctition
liom a tixcd proportion of tlut rate-
payers of the locality. To that ex-
tent only did local ojjtion (if that is
local option) exist. Such was then
the state of the hiw; but some
historical facts may also be nu-n-
tioned as having rehition to the
matter. The (piestion of prohibition
liiul then for years been u vital
liolitieul question iu the maritime

Vtt.-Gen. op
THE Dominion,

&c.

Prohibitory
Liquor Laws.

provinces ; the [mblic mind had Att.-Gen. op
been in a perpetual state of turmoil Ontauio v.

1 • rill 11 0 ■»'»"»'-*»«'"

about It. 1 he ablest statesmen oi
the time had been in public anta-
gonism over it. Elections had been
won and lost upon it. For two suc-
cessive years prohil)itory legislation .Seboewick J
had been introduced in the Nova
Scotia Legislature, and a Bill of that
character was on one occasion suc-
cessfully carried through the Lower
House. In New Brunswick a
prohibitory law had actually passed,
and remaiueil in oi>eration for a year.
It was then repealed, with a ri'ver-
sion to license law. Such, then, was
the attitude of the public mintl in
two of the three confederating i)ro-
vinces at the time of the Union,
What meaning, then, is to be given
to 'municipal institutions in the pro-
vince ' ? Three answers may be
advanced. First, it may mean that
a legislature has power to dix'ide
its territory into defined areas, con-
stitute the inhabitants a municipal
corporation or community, give to
the governing bodies of officers of
such corporations or connnunities
all such i)owers as are inherently
incident to or essentially necessary
for their existence, growth, and de-
velo[)ment, and confer upon them
as well all such anthority and
jurisdiction as it may lawfidly do
under any of the enumerated sub-
sections of sec. 92. That is the
narrowest view. Or, secondly, it
may mean that a legislature may
also confer upon municii)alities, in
addition to these powers, all (hose
powers that were possessed orenjoycd
in common by the municipalities or
municipal comnumities of all the
confederated [)roviuces at the time
of the Union, the Jus (/entiidu
of Canadian municipal law ; or,
finally, it may mean that a legisla-
ture may confer upon munici[)alitii's
all those powers which in any
province, or in any i)lace in a pro-
vince, any municipality at the time
of the L^nion, as a nuitter of fact,
possessed by virtue of U'gislative or
other authority. And the argument
iu the present case is, that because

•^

' Wf J

I !

186

B.N.A. ACT, s. 92 (9).— SPECIAL PROVISIONS.

Att.'Gen. of
Ontario v.
Att.-Gen. or
TUB Dominion,

Prohiliitory
Liquor I*iw.s.

Skdoewick, J.

at the tiiui- of tlu^ Union one of
the three provinces had given the
right of local prohibition to muni-
cii)alities, it must be assumed that
the franiers of the Act, and all the
provincial legi^iliitiires as well as
the Imperial Parliament itself, must
have intended by the use of the
phrase ' inunicii)al institutions ' to
give to the local legislatures the
right to pass prohibitory K'gisla-
tion, and that, too, without refer-
ence to municipalities at all. I dis-
sent from this wide proposition.
The first view, in my judgment,
is the i)roper one, a view which
gives scojH' for libi-ral inter[)reta-
tion as to what may constitute tlie
essence of the municipal system,
and give due effect in that direction
to the municipal Jits f/ciitiiiiii of
the three old provinces ; and I
entertain the strongest doubt if
it ever was contemplated, by the
use of the words ' muni<'ii)al insti-
tutions,' to mak(> any particidar
reference to the licpior traflic at all.
The following considerations point,
I think, in that dire«'tion.

" (ft) The question of licpiortrallic
was dealt with,an<l I think disposed
of, by sub-sec. 9in relation to license.
In the Quebec resolutions, and in
the proceedings of the three assent-
ing legislatures, the sub-section
read, ' shop, saloon, tavern, auctio-
neer, and other licenses,' only : the
limitation as to revenue was an
addition made in London, with the
assent of the Colonial delegates
there [Pope's life of Sir J. Mac-
flonald, App.], ju.st l)ei'ore the
Act became law. The article as
first framed would have had a
much broader apidication than it
has in its present shape,and possibly
might have given prohibitory
powers to the legislatures, and I
can only suggest that the limita-
tion was impo.sed for the very
purpose of clearly limiting the
provinces to regulation only. Be-
sides, if the right to prohibit as
well as to regulate is involved in
' municipal institutions,' if that
phrase includes all powers pre-

viously given to municij)alities, in-
cluding the issuing of all licenses
icferred to in sub-see. 9, why
particularly specify these licenses
in a separate sub-section ? I havp
always understood it to be a vnh-
of statutory construction, thiit
where special provisions are made
in regard to a particidar niiittcr,
and there are in the same .statute
general provisions broad enough
ai)pari'ntly to cover the sninc
matter, the special provisions
govern, not the general ; the pnr-
ticular intent prevails.

" (b) The collocation of sub-sec-
tions H and 9, and the sources from
whit'h the phraseology was pro-
bably taken, point to the same con-
clusion ; the sub-section relating to
licenses follows the one relating to
municipal institutions, as if the
forin(>r were of the less moment.
In the Municipal Act of Upppr
Canada (1866), at p. 583, tliero
is a sub-tith', ' Shop and tavern
licenses,' and in the same section,
and on the .same page, tlu're is
another sub-t'lle, 'Prohiliited .sale
of .spirituous liquors.' May it not
be projK'rly suggested that this
particular subject was designedly
omitted ?

" (f) Considering that the ques-
tion of prohibition was a vital
social and political question (nn<l
almost as much so in 1864 as to-
day) ; considering especially the
hi.story of the question in the lower
provinces, I can scarcely bring my-
self to believe that it was omitted
from sec. 92 by reason of ' muni-
ci|)al institutions' containing it. If
it had been intended that the \m-
vinces .should have it, it would
have I)een expressly enumerated.
Ilegulations by means of license
was. Why omit prohibition ?

" (cl) The jurispruilence on the
•iucstion also throws light. In
Keefe v. M'Lennan, dccidetl in
Xova Scotia in 1876, nine years
after confederation, a most able
judgment was delivered by the
learned equity judge upon thi'
whole question, and neither in thf

B.y.A. ACT, a. 92 (9).— POWERS TAKEN AWAY. 187

ari'iiiucnt nor in the judgment was
it even snggestod that the iiower
iliiinipil came under ' nmnieipal in-
stitutions.' The same ol nervation
appliod to Frcderieton i\ The
yiii'cn, in the Supreme Court,
New Urnnswiek, 3 Pugs. & B.
130.

"Why this longsilenee? The
'voi'ds * munieipal institutions '
were there in see. 92, ns promi-
nent then as now, but no one in the
nmritime provinces ever dreamed
tiint ' prohibition ' was concealed or
wiappod up within them.

"Their Lordships of the Privy
Council seemed of like opinion in
Kussi'll r. The Queen, decided in
1H82, even although at that time
.Slnviii r. Orillia, 3G U. C. Q.
B. 150, had been decided in the
Queen's Hcnch of Ontario, and the
(|iiestion was at the argument ex-
piv.'isly raised, as stated by the pre-
sent Lord Chancellor (Lord Her-
sehell) iit the argument of the
M'Ciirthy case [see ante, p. lo7].
I take the reason to be that the
phrase 'municipal institutions' had
uo such broad meaning as is now
(ontended for.

" (f) But there are more weighty
considerations than these. Prior
to the Union powers of many
diverse kinds and varieties were
from time to time given to muni-
cipalities, 'i'he h'gishitures con-
ferring them were then supreme.
There was then no [jo.ssible ques-
tion of jurisdiction or right of
legislation; their authority was as
unfettered as that of the Imperial
I'arlianicnt itself. And .so it hap-
Itcned tinit many munieipal coun-
cils hud authority to deal with
matters since transferred to the
central Parliament ; for example,
weights and measures, the inspec-
tion of staple artiides of commerce,
ilie regulation and control of navi-
galile rivers, and, in the ca.se of St.
•fohn, X.B., and of the whole of
Ij'per Canada, of public harl)Ours.
Hie preparation of the (dectoral
lists was for the most part with
them. In some instances they had

authority to deal with the crimiiud
law, with the violation of the dead,
and cruelty to animals, and so in
many other ca.ses they possessed
powers in respect to sidijeets now
transferred to Parliament. When
the change <'nme, and the field of
legislation was parcelled out, one
portion to th(^ Dominion and the
other to the provinces, the muni-
cipalities retained all their powers,
but the local legi.shitures (lid not.
If l)efore the Union they had
given a munieipal council power
to regulate a harbour, or to make
a bye-hiw respecting weights and
measures, they lost the power of
taking it away by virtue of the
Union Act, the right being trans-
ferred to Parliament alone. There
can be no doubt about this; the
possession by a municipality of a
certain power at the time of the
Union atibrds no guide in the in-
(piiry as to which legislature uuiy
subsequently deal with it. The
only test is : Is the power referred
to within the subjects of 91 or of
02? Regulations made by Domi-
nion law as w(dl as by local law
must be enforced by some .sort of
machinery. Parliament, I think,
may use e.visting municipal ma-
ehineiy for this purpose ; may, in
respect to those subjects conuuitted
to it, such, e.(/., as weights and
measures, the fisheries inspection,
navigation, &c., give to municipal
councils power to make bye-laws.
But, however this nmy be, it is
out of the (juestion, it is absohitely
futile, to argue that because before
confe(h'ration the ohl h'gishitures
had given power to the nmnici-
palities to n:uke regulations in re-
spect to certain subjects, they still
have that uower, although with
their consent these powers were by
the constitutional Act, in so many
words, taken from them and given
exclusively to Parliament. It fol-
lows, then, that if prohibition is
not an «'ssentially component part
of the subject-matter described by
the phra.se ' municipal institutions,'
and is ' a regulation of trade and

Att.-Gf.jj. of
Ontario v.
Att.-Gen. of
THE Dominion,

&c.

Prohibitory
Liquor Laws.

Sedoewick, J.

' It-]

Att.-Oei». of
Ontahio v.
Att.-Gen. ot
THE Dominion

Prohibitoiy
Liquor Liiws.

■Sedoewick, J.

;':i3::

$11

188 B.N.A. ACT, s. 92 (9).— McCARTHY ACT (1883-4).

comnicrcc,' it is n iiiiittcr for Piir-
limiiciit alone to dciil with.

" (/) But it isHigiicd that what
is called ' tlu' police power ' is po.'^-
ses.sed by tlie i)rovinceis under
'niuuicipal in.'^titution.s,' and that
the right in (juestion i.s a mere in-
cident of the ' police powei.' Now,
if by 'jjolice power ' i.s meant the
right or duty of maintaining peace
and order, and of .seeing that law,
all law, whether of Imperial, fede-
ral, or local origin, is enforced and
obeyed, then I agree that that
power is wholly with the provinces.
But it is with them, however, not
because it specially belongs to
' municipal institutions,' but be-
(uiuse they are charged with the
* admini.stration of justice.' The
legislatures may delegate this duty
to municipal functi' ■ , but the

mode of admiiii: ';■■ r "fely a

matter of proviuci; ■ r

" If, however, thai wide meaning
is given to the ' jiolice puwer '
which the juris[i, uuen.''^ of t)"
United States has given , it, tl
power of limiting or curtaillii;'
without comi)ensation the natural
or acquired rights of the individual
for the purpose of promoting the
public benetit, the power, for in-
stance, which enables a State legis-
lature to regulate the operation anil
tolls of a grain elevator in Chi-
cago, or to compel a comi)any to
u.si- interlocking switches u[ion its
line of railway — then, I .say, the
provinces do not exclusively i)OS-
se.ss it. It is the coimnon po.s.scs-
sion of both, to be exercised by
both in their respective domains
for the common weal.

" {g) The cases decided in the
Privy Council, in my \iew, practi-
cally conclude the tpiestion. Kus.sell
r . The Queen decided that t he Canada
Temperance Act, a prohibitory Act,
was such an Act as the Dominion
Parliament might properly pass. It
has been put forward 1 ha\ e already
suggested that provision should
have been made for the preserva-
tion of the provincial right to raise
a I'cveuue by means of liquor

licenses; but that judgment is con-
elusive, as it decides in so umnv
words that the Act in questidii
'does not fall within any of tl:c
subjects as.signed exclusively to inc
provincial legislatures.' Thejiidtr.
ment of the Privy Council on tlic
McCarthy Act was inevitiililc.
That Act lUHpiestionably was an
invasion of provincial rights. Its
provisions wi-re regulative only. It
purported to legislate in resj)ect to
liquor licenses and the raising of
revenue therefrom, as well a.s to
municipal regulations theretofoic
prescribed under provincial legis-
lation, its practical effect, if valid,
being to make invalid all local sta-
tutes then in force having rct'ei-
ence to the liquor traffic. It pur-
ported to create the machinery, to
jjrescribe the method, by whii'li
the local authorities might raise a
revenue from liquor licenses, a
right unquestionably the preroga-
tive of the provincial legi.slatuics;
and it therefore fell, destroyed by
its own inherent and manifest iilc-
pdity. In the Hodge case, the <nii's-
tioii there being, Was the Ontario
Provincial Act regulating the traffic
ultra vires of that legislature ? the
decision of the Privy Council wa.s
that it was intra vires. Wluii
the McCarthy Act came up, a
Dominion Act also purporting to
regulate the traffic, the Priv)
Council, as a neees.sary sequence,
held that it was ultra vires of tlu'
Dominion Parliament. It is true
their Lordships in the Hodge case
intimated that the Ontario License
Act came within sub-sees. H, 15,
aiul IG of sec. 92, as doulitless
many of its provisions in one way
or another did; but I do not as-
sume, because sub-.sec. 9 was
omitted, that it was intended to lie
laid <lown that that sub-section had
no relation to the subject of legis-
lation. Many of the provisions of
the Act were municipal in tlieii'
character, and therefore caiiu' un-
der ,sub-sec. 8 ; were peual in their
character, and therefore under siih-
sec. 15 ; merely local, and therefore

III

B.N, A. ACT, H. 92 (9).— PROHIBITION TOO LATE. 189

iiniler ,sub-sec. 16, but the wholo
ActwnsanActrcn;uliitingliquoriiiKl
ntlier licenses with a view of rais-
ing a rcvemiP, and therefore under
siil)-snc. 9 as well. And there, up
to tliR present time, so far as our
iiltiiiinte appellate tribunal is con-
eenipd, and .so far as the liquor
traffic is concerned, the question
rests. Now, having regard to
tiiese decisions of the final appel-
liite tribunal, I cannot help asking
myself this (piesllon : Supposing
till' Ontario Legislature passes an
.Vet absolutely prohibiting the sale
of into.xicating liquors in the i)ro-
viiice, wlu!thcr by retail or whole-
s:ile for the present puri)Ose makes
no ilifFcrence, but making no ex-
irptioi), as in the Canada Teni-
|Kiaiice Act, in favour of liquors
sold for sacramental, chemical, or
medical purposes, and that the
Canada Tenqjcrance Act is in force,
siiv, in the city of Ottawa, and
suppose that a lawful sale for such
|iiirposc is made ; in that case we
would have Parliament saying the
siilc is legal, the Ontario Legisla-
ture saying it is not. Which is
tlie valid legislation ? There can
liobut cue answer to this question.
Wiiether the recent decision of the
Privy Council in the Attorney-
(jeiiei'al of Ontario v. Attorney-
Geiiend of Canada, [1894] A. C.
ISO, has a bearing n[K>n the pre-
siiit case may be questioned. It
was there decided that the Ontario
Legislature, having under *pro-
|Krty au<l civil rights ' enacted
certain provisions as to the legal
consequences of a general assign-
ment for the benefit of creditors
ilie same provisions that in a fede-
ral bankruptcy law as ancillary
tliereto might constitutionally be
(niicted by the Federal Parliament,
«iij within its constitutional right,
I'ut only Iwcause the Federal Par-
liiiiiient had not Uiken possession
of the field by dealing with the
'•iibject. Now, admitting that
iiiuler 'municipal institutions,' or
'lie ' jwlico power,' or ' property
and civil rights,' a province may

prohibit the traffic, can it now do
so in view of the Canada Teni-
l)eranee Act ? The Federal Par-
liament has already seized it.self of
jurisdiction. It has pa.ssed the
Scott Act. It has prescribed the
method by which in Canachi pro-
hibition may be .secured ; and is
not any local enactment jjurporting
to change that methml or other-
wise .secure the desircMl end, for the
time being ino[)erative, overriden
by th;> expression of the control-
ling legislative will ? In my view,
the provincial legislatures do not
l)ossess the right to piohibit the
liquor traffic. deferring now to
the si)ecific questions .set out in the
reference, I have but few obser-
vations to make. I cannot, in the
absence of a specific enactment on
the subject, recognise any distinc-
tion from a constitutional point of
\ iew between the selling of liquor
and its manufacture or inq)ortation.
If it is admitted that a provincial
legislature under 'nuniicii)al in.sti-
tutions ' has power to absolutely
prohibit the .selling of liquor, it
nnist have incidentally the right of
prohibiting the having of it, and,
as incidental to that right, the
right as well of making or im-
porting it. Neither can I, in the
ab.senee of a specific enactment on
the subject, recognise any consti-
tutional distinction between .sale
by wholeside and sale by retail,
notwithstanding the case of Slavin
I'. Orillia; that, apparently, was sub-
.sequently concededwiththefull con-
currence and approval of the Privy
Council in 'the Dominion Licpior
License Act ca.sc ' (the case on the
McCarthy Act). In the light of
which particular provincial candle
are we to investigate the question ?
In Upper Canada a sale of liquor
to the extent of five gallons, or one
dozen )ottles, was considered a
whole.sjil '■ transaction, the question
as to the origin of the package
Iwing of vital moment, but the
capacity of each bottle immaterial.
In Lower Canada there was no
question an to ' original packages,

Att.-Gen. ok
ONTAnio V.
Att.-Gen. of
the dominio!*,

&c.

ri'ohibitory
Liquor Law.s.

Sedqewick, J.

i,;

: - m

'i ■.

I? f-

t J^

\\l

i! ih'

190 B.N. A. ACT, ,«. 92 (n).-WHIM OF THE PUBLIC.

At'J.-Qen. of
Ontario i'.
. Att.-Oen. ok
TUB Dominion,
&c.

Prohibitory
Liquor Laws.

Kino, J., for
invalidity.

but it was doiil)tleMs the cn.se that a
.sule of three f^allons or upwards
wa.s ' wliolcsale,' the cliaracter of a
sale between three {gallons and
three half-i)ints being left doubt-
ful. In No\a Scotia tlie line
was api)arently drawn at ten gal-
lons, but inasmuch as ' slioj) ' li-
censes could not sell in quanti'ies
less than one gallon, and as the
distinction between ' wholesale '
and 'retJtir did not there receive
express statutory recognition, it is
h'ft an open (piestion whether the
constitutional line between whole-
sale and retail was of one gallon or
ten. In New Brunswick the
niininium amount that a wholesale
license might sell was one jant.
Now, in view c*" this diverse legis-
lation in tlie .several provinces,
the five gallons of Ontario, the
three gallons of Quel)ec, the ten
gallons of Nova Scotia, and the
pint of New Brunswick, how can
this Court arbitrarily define the
line or fix the limit between a
whole.sjde and a retail tran.saction ?
How can we, in the exercise of
judicial oflice, determine the de-
limitating boundary? The Con-
stitutional Act, in my view, im-
l)oses npon us no such duty. It
does not give colour even to the
idea that the right of legislation in
either body is to be determined by
such questions as quantity or (jua-
lity ; and, in my view, no such
distinction exists. Neither, in my
view, is there any distinction be-
tween those places in Canada
wlierc! the Canada Temperance
Act has iH'en put in force, as the
phrase is, and those places where
it has not. The whole Act is an
Act api)licable to all Canada. Cer-
tain cities or nuinicii)alities may
take advantage of it.s provisions to
.secure the kind of prohibition
therein contemplated, but it is a
law providing for prohibition every-
where. To admit the right of a
U^gislature to enact a law for the
same purpose applicable only to
localities that have failed to place
themselves under Canadian prohi-

bition, is to make the constitutiouul
authority of a legislature dependent
on the whim or fancy for the time
being of tlie public .sentiment, u
principle in support of which 1
can find neither authority or rea-
son. For th(' reasons stated, I
think the seventh question must
be answered in the negative, and,
in my judgment, an affirnuitive an-
swer can be given to none."

King, J. : " Upon this continent
there are two methods of dealing
with the liquor traifie, namely, Ijy
licence, and by prohibition. The
latter may be general, or exercised
through what is called local option.
The licensing system is one of re-
gidation, with only so much of
suj)pression as is ini.'idental to re-
gulation. Prohibition has sup-
pression as its primary and distinct
object. No one is likely to con-
fu.se the two things. The licensing
.system is exclusively within pro-
vincial powers. All that is fairly
incident to its effectual working
goes with it as a branch of local
l>olice power. In Hodge v. the
Queen their Lordships, after sum-
marising the clauses of the Ontario
License Act then in question, sjiy
of them — [reads sentence com-
mencing " Theis** seem " down
to "B. N. A. Act, 1867," ante,
J). 141]. The Dominion Parliii-
ment having in 1883 passed a
general Licensing Act applicable to
the entire country, this, with an
amending Act of 1884, was held
ultra rires ujmju a refereiu'c of the
subject to the Judicial Committee of
the Privy Council. Then, with re-
gard to prohibition, the Cana<la
Tenqjerance Act, R. S. C. c. 100.,
is a local option prohibitory Act.
It gives to each county and city
througliout the country (or elec-
toral division in Manitolia) thi'
right of determining, by a vote of
the parliamentary electors therein,
whether or not the prohibitory
clauses of the Act shall 1k> adopted.
These clanses prohibit (with some
exceptions not material to l)e now
stated) the sale of intoxicating

if-

I.N.A. ACT, s. 92 (9).— HODGE RE-AFFIRMED.

191

liquors entirely. When loeuUy
adopted they continue in opera-
tion for three yeiirs, and thereafter
until withdrawn upon like vote. On
the otiier hand, a vote adverse to
local atioption l)ars the subjeet for
a like period. In The City of
Frediricton v. The Queen the Act
wiis held valid chiefly as relating
to trade and conunerce. In
Russell V. The Queen it was sus-
tained on other grounds. Their
Lortlships, approaching the subject
from th(! side of provincial powers,
lu'ld that the provisions of the Act
(lid not fall within any of the
classes of subjects assigned ex-
clusively to the provincial legisla-
tures. It was therefore, in their
opinion, at least within the general
uneniunerated and residual powers
of the general Parliament to make
laws for the peace, order, and
good government of Canada in re-
lation to all matters not coming
within the classes of subjects as-
signed exclusively to the provincial
Icgislatiu'es. It was not doubted,
say their Lordships in Hodge r.
The Queen, referring to their de-
cision in Russell v. The Queen,
'that the Dominion Parliament
had such authority tmder sec. 91,
unless the subject fell within some
one or more of the classes of sub-
jects which by sec. 92 were as-
signed exclusively to the legisla-
tures of the provinces.' Referring
to the grounds of decision in City
of Fredericton v. The Queen, their
Lordships, who had shortly before,
iu Citizens' Insurance Co. v. Par-
sons, 7 App. Cas. 96 [see Note,
sub-sec. 2], referred to the words
'trade and commerce' in a way
that is sometimqs sought to be
put in opjiositioni to the views of
this Court in The City of Fre-
dericton V. The Queen, say, ' We
must not be understood as in-
timating any dissent from the
opinion of the Chief Justice
(Ritchie) of the Supreme Court
of Canada and the other judges
who held that the Act fell within
that section.' In treating of the

TMK Dominion,''

lVc.

I'roliiliitory

KlNU, J.

exclusive powers of the provincial Att.-Gbh, of

legislatures, sub-.sec. 8 of sec. 92, O"'*"*",'" "•

, ' ..•#•• Att (jtEN of

respectnig nuuiunpal institutions,

was not iu terms referred to in
llussell V. The Queen, and this
fact has sometimes been made use l,i(|uor i^jiw
of in the way of criticism of that
case. Indeed, in the argument of
the Dominion Licen.se Act, one of
th(ur Lordships expressed the opi-
nion that clause 8 of sec. 92 hiul
not been argued in Russell v. The
Queen, but the counsel then argu-
ing [the present Lord Chancelloi-,
Lord Herschell, see ante, p. 157],
stated that it appeared from a
shorthand note of the argument
that the point had l)een distinctly
argued. When City of Fredericton
I'. The Queen (which is known to
be substantially the same case) was
before this Court the point was
argued. Lash, Q.C., one of the
counsel for the Act, thus alludes
to the argument as adduced 'oy the
other sitle : ' It is also contended
that this law, having for its object
the suppression of drunkenness, is
a police regulation, and so within
the powers of municipalities,' &c.
In Reg. V. Justices of Kings, 2
Pugs. 535, Ritchie, C.J., had pre
viously dealt with the like conten-
tion, and iu City of Fredericton v.
The Queen adhered to that decision.
To that case I beg to refer. But
what is more pertinent is the fact
that after sub-sec. 8 of .sec. 92 had
been fully considered and given
effect to in Hodge v. The Queen,
their Lordship.*, as though it might
be thought to make a difference
with Ru.s.sell v. The Queen, took
occasion to re-allinu that decision :
' W: Jo not intend to \ ary or de-
part from the reasons expressed for
our judgment iu that case.' Now
it is important to note that the
substantial thing effected by the
Canada Temperance Act is the
suppression of the liquor trade in
municipalities severally by a sepa-
rate vote of each. What is effected
is local prohibition in all its local
aspects. It could not have been
really meant by their Lordships

SI If

ili

;li:i

i I

ill

Att.-Okn, of
Ontabio r.
Att.-Okn. ok
TiiE Dominion,

I'ri)liil)itory
Liciuor Liiwy,

KiNd, .1,

r! i t i i

102 n.N.A. ACT, 8. 92 (0).— DOMINION OVERHIDES.

that this was ontsiilc of tho cliisacs
of snhjcclH I»y sec. 92 assigned to
the |)roviiiciiil legislatures simply
l>y reason of tlie Act having
operated as a local option Act
tlirongliont Canada, while a pro-
vincial Act is necessarily liinitcd
to the province ; that would in-
deed have been a short road to a
conclusion, but it would have con-
fused tlie l)oundaries of every sub-
ject of legislation, besides render-
ing unnecessary th(i particular
provisions of the B. N. A. Act
[sec. 95] respecting concurrent
legislation on certain specilicd sub-
jects. This was recognised in the
decision uiwn the Dominion Li-
cense Act, wlieie it was held that
wliore a subject, such as the licens-
ing system, is within a chvss of
subjects assigned exchisively to
the provinces, the Dominion does
not, by legislative provisions re-
specting it applicable to the entire
Dominion, draw it at all within
their ])roi)er .sphere of legislation.
But it is argued that prohibition may
in one aspect, and for one purpose,
fall within sec. 91, and for an-
other jmrpose and in another
aspect fall within sec. 92. And
inasmuch as it is not possibles for
general words to enter into the
complexities of transjictions, and
distinguish entirely one subject
i'lom another in all its relations,
the cases clearly establish that
legislative provisions may l)e with-
in one or other of these sections,
according as, in one aspect or
another, they may be incidenfad to
the effectual exercise of the de-
lined powers of Parliament or
legislature. In the effectual ex-
ercise of an enumerated power it
may Ije reasonably neces.sary to
deal with a matter which, apart
from its connection with such sub-
ject, would a[)pear to fall within a
class of subjects within the exclu-
sive authority of the other legisla-
ture, and in such case there is the
ancillary power of dealing with
such subject for such purpose, a.s
explained and illustrated in Att.-

Gen. of Ontario v. Att.-Qcn. of
Canada, [IH04] A. C. 200. In
the application of this princijile
the Dominion L(!gislature over-
rides wliero the same subject is
(h'alt witli through ancillary powers,
and j)ending the existence of Do-
minion legislation, the provisionul
legislation, if previou.sly passed, is
in abeyance. If subsequently pass-
ed it is ultra vires. In all such
ca.ses regard is to be had to the
primary purpose and object of tho
legislation, and (except in the few
cases where concurrent legislation
is authorized, of which tliis is not
one) the primary object is to he
obtained through one of the legis-
lative authorities, and not indiffiT-
ently through either. Now, prohi-
bitory Acts are very simple in their
aim. Those who favour them may
!)e influenced by varied motives,
although probably these vary but
little, but the direct, well-under-
stood, and plain purpo.se is the
suppression of the licpior trade.
This is accustomed to be effected, not
incidentally in the effectual carrying
out of some larger [M-oject of legisla-
tion, or as ancillary to something
else, but as a princi})al political ob-
ject itself. If this power exist in the
provinces, it mu.st be found either
in the enumeration of .sec. 92, or in
what is reasonably and practically
neces.sary for the efficient exercise
of such enumerated powers (sub-
ject to the provisions of .sec. 91),
otherwise it can in no aspect Ix"
within the sphere of provincial
legislation. The grower in ques-
tion is not an enumerated one. On
the contrary, what indirect re-
ference there is to the liquor
traffic is made in connection witli
the license system, and licensing
does not import suppression, ex-
cept, at most, as incidental and sub-
ordinate to it. Then is the power
to prohibit reasonably or prac-
tically necessary to the efficient
exercise by the province of an
enumerated power? It is urged
that this is so with regard to sub-
sec. 8 respecting municipal insti-

B.N. A. ACT, .s. 02 (0).— SUPPRESSION OF A TRADE. 193

liilioiiH. The lircnsinf; systom is
nnliniirilv assoi'iiilt'il witli fliat siib-
ji'il, iiiiii lii'ciisiiif^ i.s iilso pointed
III in siilt-sce. !), I»iit tlicrc in no in-
lii'ii'iit or onliimry iis.sociation of
|ir(iiiilii.'''ii with nniiii<'i|)al institu-
limis. Nfitlicr in Enj^iaud nor
the Uiiiti'il Stales is lliis .so. The
siiilc oMiiinf,'s in the eont'ederatetl
IHOvinccs at the time of the Union
will Ik' referred to hereafter. What.
is rcnsonaiily incidental to the ex-
ercise (if <;enei'al powers is often ii
iiriutical (|uestion nion^ or less tle-
|ieniii'iit npon considerations of
e.vpedieiiey. The .several jiidj^-
iiu'iits of tlie Privy Conneil have
plaeeil the respective powers of the
Doininiiin and provinces npon the
subjwt on a wise and practical
woikiiif; liasis ; allirniin^ on the
one iiiuul the excln.sive ri}i;ht of the
lirnvinces to deal with license and
kinilreil subject."*, and aflirming on
llie other hand the right of the
Doniinioii to jirohihit, either directly
(ir tiirougli tlie method of endow-
iiii; tilt' .s(!veral provincial mnnici-
palities with a facnlty of accepting
prohibition or retaining license.
Wherein is it reasonably necessnry
for purposes of municipal in.stitu-
tions that the provinoos should
liiivo like power of suppression, to
he exereised eitlier directly upon
the entire province, or, through the
iH'stowuient of a like faculty, upon
the municipalities ? Why (in any
j ]iro[)er eoiistitution) .'should a cou-
Lsidcrable trade be subject to pro-
hiliition emanating from different
I l('i;islative authorities in the one
1 touiitry ? The supi)ression of a
I lawful trade impair.s the value of
I till' [lower to rai.se revenue by in-
jdirpct taxation. Primd facie, the
Ipowcr which levies indire(!t taxa-
Ition has the power to protect trade
Ifrom sujipression, and the sole
rjower of suppression. And in a
leystom of government where the
Iprnvinces receive annual subsidies
out of the Dominion Treasury, it
»'('ms repugnant that the provinces
phoulil, tlirough mere implications,
es|)eeting municipal institutions

S 2340.

possess the jtower to destroy

large reveniie-liearing trade

for the Dominion to determine for

roy a
It is

Att.-Oiw. or
Ontario v.
Att.-Oen. ok
TMB Dominion,
it.>ielf whether or not such a trade &c.
shall be .•,uppressed, and if .so, how, Prohibitory
and to what extent. The Dominion Liquor Laws,
has so expres.'sed itself. It has King J.
entered every municipality, an<l
oifered (o it the suppression within
it of the li([U()r tra<le under sanctions
of Dominion law. It is further con-
tended, however, that prohibition
is local and mnnicipal, because that
at th»! time of the Union two out
of the three original members of
the Union (having then of course
full i)ower of legi.sh tion) lia<l
eoiiferre<l upon tlui dv ici|)alities
a local option of [jrohib'tion (with-
in wider or narrower limits), and
had incorporated this provision in
the mnnicipal Acts. Even had
this been general with all the pro-
vinces, I do not think that the
conclusion drawn from it is war-
ranted, in the view of the whole
of the B. N. A. Act ; nor, iwrhaps,
would it support the claim to deal
with the matter otherwise than
through the like method of muni-
cipal local option. But assuming
that a common understanding of
words in an unusual sense might
be inferred from such a state of
things if it had been general, the
fact that in one of the confedera-
ting ])rovinces (New Brunswick)
there was no su<'h provision de-
prives the argument of the weight
that only an entire consensus could
give to it. In New Brunswick there
were at the Union two groups of
municipal institutions, the repre-
sentative kind (as in Upper and
Lower Canada) throughout jtart
of the province, and the system
of local govcirnment of counties
through the justices in session
(as in Nova Scotia) throughout
the remaining part. But in neither
kind was ther(^ vested the power
of suppressing the liquor trade.
The Act in force in New Bruns-
wick was 17 Viet. c. 15., as from
time to time revived and continued
(20 Vict. e. 1. ; 33 Vict. c. 2.).

;i ,

194 B.N.A. ACT, 8. 92 (9).— EFFECT OF EXTINCTION.

Att.-Qen. of
Ontario v.
Att.-Oen. 01' .
TUB Dominion,
&c.

Prohibitory
Liquor Liiwb.

Kino, J.

i^il

This is important, for t<.'mi)eraneo
legisliitioii Imd goiio further in Now
Brunswick tiinii in any other pro-
vince. In 18oi) an Act was passed,
IH Viet. c. .'{0., prohibiting thioiigii-
oiit tho province the Iinportution,
Manufacture, and Trairi(! in Intoxi-
cating Liquors. This WHS repealed
in 1850, 20 Vict. c. 1., amid great
political oxcitement,anil tho absence
of local oi)tion at tho tinu* of the
Union was not a casual omi.s.sion.
Nothwithstanding the great weight
of judicial authority the other
way, I cannot in view of this
give to the words ' mmiicipal in-
stitutions' as used in the B. N. A.
Act a meaning not inherent in
them, simply becau.se of this ex-
tension of power to the raunicipali-
tios in .several, but not all of the
confederating provinces, It .seems
to me that tho contention in ques-
tion comes to this, that the words
' municipal institutions ' arc to l)e
read not only as meaning every-
thing inherent in or ordinarily
associated with them, but also all
other powtMs exercised by the
municipalities of any of the con-
federating provinces. I must add
I hat even if the practice had been
general, such an excrescence on the
municipal system would be removed
by the other provi,sions of tho
B. ^. A. Act. Assuming, how-
ever, that there is such a right in
the provinces, and that in some
aspects prohibitory legislation is
within their power, I agree with
Mr. Nesbitt (who was permitted
to address us on behalf of the
Brewers' Association), that no such
legislation could have validity while
the Canada Temjwrance Act is in
force. The provisions of that Act
living the option are in force
throughout the entire country.
The option is exerciseable every-
where and at any time, and these
options (with such other law as is in
force) represent what Parliament
deemed adequate upon the subject.
Why then should there be com-
peting local options established
under provincial legislation, or a

competing .system of provincinl
prohibition ? The Dominion Par-
liament, in passing the Act, docluipd
an intention to enact a uniform
law upon tl'j subject. It assumes
the right to prohibit, and fixes tlic
conditions. The freedom of the
trade (subject to license and any
other unre[)ealed law), if the con-
ditions are not met, is corrolntivc
with its suppression if they aiv.
Mr. Nesbitt has well stated the
confusion in the working out of \hv
Canada Temperance Act that would
follow upon absolute prohibition
by the province, or prohibition
through different local options ; tlw
result would be very far from uni-
formity. As to a distinction betwwn
jirohibition of the retail trade ami
that of the wholesale trade, it is
a difference of degree and not (4
kind. The wholesale trade (duM
not long survive tho cxtinctidii nf
the retail business throughout a
province. The matter has to Itc
looked at broadly, without too
much refinement or distinction. As
to the power to prohibit importa-
tion, that manifestly and diiwtly
affects • trade and commerce,' ami
tho power of raising revenue liy
customs duties. As to the sup-
pression of the manufacture of
liquor, this contention interfcivs
with exci.se, and subjects the nrgu-
ment respecting the implied powers
of municipal institutions to a great
strain. The question regarding
the Ontario Act of IH90 remains.
It has already been incidentfllly
con.sidered. No doubt much lati-
tude ought to be given to the ex-
ercise of the licensing power, in the
way of restriction or regulation.
Preventing of selling in certain
ways, at certain times or places, to
certain persons, &c., is greatly re-
moved from prohibition })i'oper.
But as I read it, the Act appears to
go beyond license and regulation
or restriction. It seems substan-
tially to give the po.ver to prohibit
altogether. It is true that the Act
is expressed to be merely the re-
vival of provisions in force at the

! !/

n.X.A. ACT, H. 92 (0).— PARTLY A " RRftULATrON." 195

[Iiiidii, and since iissnuied to hf
iv|)i'ii1(m1 by till- |)rovin(.'ial It'gisla-
Ime. But if the power to pass the
Ad as a new provision of law
iliji'S not exist, no more does the
power to revives tlu( old law, whieii,
oil the other hand, needs no re-
vival so far ns Ontario legislation
is concerned, inasnnieh ns it was
uivci' elfeetually n-peulod hy such
leg I therefore answer

tilt .he (juestions submitted

ill the ncj^ative, with deep acknow-
liil','iiients to the learned counsel
who iiave been heard on behalf of the
several interests Ixifore the Court.

HrsoN I'. The Townshic of
Sdirii XimwRii. This was an
appeal from Court of Appeal, On-
tario, May 20, 1H92, 19 O.A.U. 313
[see p. 101 for judges]. This ease
iiiso raised the (inestion of the con-
stitationality of see. 18 of 53 Viet.
(Ont.) e. 50., i\s explained by see. 1
ol' J4 Vict. (Ont.) c. Hi., 15 Jan.
181)5, 2tS. C. R. 115. Sir Henry
Strong, CJ., gave the same .judg-
ment "iven above [sec p. 101].

"' i-eau, J. : " In view of the
<1« • Act of 1891, 54 Vict.

(Oai.; . 40., the appellant's con-
tentions that tlu^ bye-law in (luestion
piuliiliits entirely the sale of in-
to.\ieating liipiors in South Nor-
wieh, and that sec. 18 of 53 Vict.
0. o().euii)owers the municipal coun-
cils t(i enact a total lU'ohibition of
the ii(inor traffic within their terri-
toiial limits, have to be considered
a.s aliandoned. The only question,
tiierel'ore, now to be determined
\mv. is as to the power of inunici-
ptilities, in Ontario, to prohibit the
letail trallie of liquors within their
resppctive limits, as it was vested in
tlieni liefore confederation. In my
opinion the an.swer to the question
tlius limited is correctly given by
tlie Court of Appeal in this case and
m i?c Local Option Act, 18 O. A. R.
572 [see next case but one]. The
powers which the i)rovincial legisla-
tures and the nuiniciiml authorities
liave exercised in the matter since
tlie coming into force of the B. N.

A. Act, now over 20 years, with
the ac(iuiescence of the federal au-
thority, a power expressly .sanc-
tioned in numerous instances in
Ontario and (Quebec by judiciid
authority, might lie curtailed or
affected, moi'e or less, by a federal
prohibitive! law if Parliament has
the power to jiass one; but that
is not the question here, and it
will be time em igh to consider it
when Parliament shall have legis-
lated in that sense, if it oer iloes,
Sullice it for me to say, for the
purposes of this case, that in my
opinion, under sub-sec. 8 "'' '^ e. 92
(if the H.N". A. Act, the 'egi>''" '•"'>'» iu
qui'stion and the bye-iaw as.sa-'^l
by the a|)pellant are intrn vires.
As said in The Queen v. Taylor,
10 March 1875, 3(5 U. C. Q. B.
183, 1). 212, by Wilsmi, J., whose
langiuige I cannot do better than
boirow : ' The act of the Ontario
Legislature in imposing a tax
for a license on .shopkeepers
and tavern-keepers, and others
of the like cla.ss, for .selling
by retail, or for continuing the
power to municipalities to prohibit
the retail of spirituous liquors, is
not in excess of the provincial
jtower, although I conceivi' it to
be [lartly a regulation of trade and
conunerce, because before and at
the time of the confederation of
the provinces the; different numici-
j)alities in this province po.s.sessed
that power and privilege, and it
was not taken away or qualified in
any way by the Coid'ccU'ration Act.
'I'hat Act, too, was in fact pas.sed,
and must be presumed to have
been passed, by the rnq)erial Go-
vernment with a fidl knowledge at
the time of the sh\to of our law,
which was affected by the Lnperial
Act, then under consideration, and,
among other matters, that part of
our law which related and relates
to municii)al instittitions, as they
existed at that time, becau.se over
' Municipal institutions in the
province ' exclusive power was
then conferred by it upon the pro-
vincial legislature. . . And I am of

N 2

HcsoN ('. Tub
TowNsaiH 01'
HoDTa
Nonwicii.

TASCUBREAr, J.

for validity.

• f\

196 B.N.A. ACT, s. 92 (9).— UNFETTERED BY DECISION.

HusoN V. The
Township op
Sooth
Norwich.

TA8CIIEnE.\U, J.

I 5

opinion tlie rififht to regulate the
.sale of .>«iieh liquors by retail, and
also the entire prohibition of their
sale iu any inunicipality, relates to
a matter of a merely loeal or
jH'ivate natiu'e in the provinee. . .
It partakes largely of a police re-
gulation.' These remarks of Wil-
son, J., are in no way affeeted by
the deeision of this Court in Severn
r. The Queen, 2 S. C. R. 70, where
that ease of The Queen v. Taylor
was under review. A \aluable
opinion by Richards, C.J., in the
sense of Mr. Justice Wilson's
aforesaiil remarks, is to be found in
lie Slavin v. Corporation of
Orillia, 36 IT. C. Q. B. 159 ; and
later in this Court, in Suite v.
Corporation of Three Rivers, 11
S. C. R. 25, p. 43, Gwynne, J.,
said : ' I cannot doubt that by item
No. 8 of .sec. 92, which vests
in the provincial legislatures the
exclusive power of making laws in
relation to municipal institutions,
the authors of the .scheme of con-
federation had in view muni-
cipal institutions ivs tliey had al-
ready been organized in some of
these provinces, and that the term
as used in the IJ. N. A. Act, unless
there Ik? some provision to the
contniry in sec. 91 of the Act,
comprehends the powers with which
nmnicipal in.stitutions, as consti-
tuted by Acts then in force iu
the resju'ctive provinces, were al-
ready invested for regulating the
trailic in intoxicating li<piors in
.shops, sidoons, hotels, and taverns,
and the issue of licen.«es there-
for, as iK'ing powers d.emed
neee.s.sary and jtroper for the bene-
ficial working of a perfect .system
of self-government. Uidess, then,
there be .some provisions in the
B. N. A. Act to the contrary,
the legislature of the province of
Quebec iiad full pow»'r in an^' Act
(Missed by it creating a munici-
pality, or in any Act amending or
consolidating the Acts already in
force incorporating the City of
'i'hi-ee Rivers, to insert the pro-
visions in question here wliich are

contained in the 74th, 75th, and
101st sections of 38 Vict. c. 76.'
Now the 75th section of the Act .so
referred to by the learned judge us
being ultra vires of the provineial
legislation, enacts that : * The said
council shall have power to make
1)ye-law9 for restraining and pro-
hibiting the sale of any spirituou.s
wines, alcoholic or intoxicating
liquor.' Henry, J., in the same
case said : 'It has been argued timt
because a prohibitory Act of the
legislature of any of the province.s
would be an interference with trade
and commerce . . such aa Act
would be ultra vires. . . I
cannot adopt that proposition.'
The City of Fredericton v. The
Queen, 3 S. C. R. 505, docs
not determine, as seems to l)e
assumed by the appellant, that the
Dominion Parliament has alone
the power to prohibit the .sale of
liquor. The oidy point determined
in that case is that the Tempeninoe
Act of 1878 is constitutional. Any-
thing that was said outside of that
question in that case, as well as in
miiny others relied upon by the
appellant, was obiter dictum and of
no binding authority ; and the re-
porter's suuunaries in some of tiiose
cases are misleading.

" The ca.si! here is unfettered hy
any authority. In answer to the con-
tention that by its decision in Riis.sell
r. The Queen, 7 App. Cas. 829 [see
above, p. 129], where Fredericton
V. The Queen was under review,
the Privy Council had deteriulaed
that the whole subject of the liquor
tratfic was gi^^'n to Pailiauieut,
Sir Barnes IVacock in Hodge r.
The Queen, 9 App. Cas. n IL"' [.««
above, at p. 140],s;vi(l : • It np|)enrs
to their Lordships, however, that the
(h'cision of this tribunal in that c&*
has not the effect supposed, and
that, when properly considered, it
should be taken rather as an aiitiio-
rity in support of the judgment of
the Coiu-t of Appeal.' And is it
not evident that when holding, at
they did, the Liquor License Act,
188 J, to have been ultra virei ol

B.N. A. ACT, 8. 92 (9).— UNEXERCISED POWERS. 197

tlie Dominion Parliament, flioir
Lor(l.'ibii)s cannot have been of
opinion that tlio wliolo control over
tiip liquor traflic wa.s vested in the
Uouiinion Parliament? The in-
ffieiiie from their deci.siou on that
License Act, I take it, is all the
other way. And in this Court
Gw} nne, J., in Suite v. The Cor-
ponifion of Three Rivers, said,
11 S. C. R. p. 44 : ' It seems to be
supposed that the judgment of this
Court in the City of Fiedericlon
r. The Queen is an authority to the
effect that since the passing of the
B. N. A. Act it is not competent
for a provincial legislatine to re-
strain or prohibit, in any manner,
the side of any spirituous liquors,
. . . But the City of Fre-
dericton v. The Queen raised
no such question, nor is any
sue!) point professed to be decided
liy our judgment in that case.
. . . What was decided in the
City of Fredericton v. The Queen
was, tiiat the provincial legislatures
Imd not jurisdiction to pass such
an Act as ''J'he Canada Tenifx^-
nince Act of 187H,' and that the
Doniiiiion Parliament alone was
competent to jinss it; an<l of this
opinion, also, was the Judicial
Coniniittee of the Privy Council in
Russell V. The Queen.'

"And ]{amsny, J., in Montreal,
nnist have shared in this opinion
wiien lie said in that same case in
tile Court of Appeal, 5 Legid News,
330; 2 Cartwright, 2S0, in refe-
niiec to the Privy Council's de-
cision ill the ca.xe of Ru.Hsell v. The
Queen : ' It has not, either ex-
pressly or by implication, main-
tained that the Dominion Parlia-
ment can alone pass a prohil)itory
law.' Tlie appellant's contentions
liave, it seems to me, Ik'cii rendered
the more untenable i)y the decision
of the I'rivy Council of February
last ill the Ontario insolvency case,
Att.-Geii. of Ontario r. Att.-Gen.
of CiiuH.la, [1894] A. C. 189 [see
post, sub-see. 13, sec. 92]. It i-esidts
fioui that cas«', if I do not niisun-
•lerstand it, that there are, under

B. N. A. Act, subjects which Hcson v. Tub
' be dealt with by both legisla- '^o^nship of

the

tive powers, and that the provincial Norwich

Tasciieheau, J.

legisla
ovincia
field is not to be deemed limited

by the possible range of unexer
eised power by the Dominion Par-
liament, so that a power conferred
upon the latter, but not acted upon,
may, in certain cases, be exercised
by the provincial legislatures, if it
fall within any of the classes of
subjects enumerated in .sec. 92.

" In my opinion the.se proposi-
tions, which are now the law of the
country, have here their full appli-
cation. Ami where would the pro-
vinces be on this (piestion of the
liquor traflic if it were not so ?
At the mercy of the federal power,
that is to say, at the mercy of eiich
other. Onbirio, for instance, might
desire to prohibit the liquor traffic
through the municipal authorities,
as they had the power to do l)efore
confederation, but Ontario would
be unable to do so if the other
provinces, (utlier by directly re-
fusing it in Parliament or simply
by not dealing at all with the
question, refused to permit it.

"That is surely not Canada's
Constitution. The inaction of the
Dominion lawgiver cannot have
such con.sequence. It cannot be
that, simply becau.sc uie Dominion
authority will not prohibit all over
the Dominion, the trade must W.
permitted everywhere in the pro-
vinces. It docs not follow timt be-
cau.sc the provinces have the right
to license they must license. Ques-
tions of power, as .sai<l by J.Iarshall,
CI., in Brown r. StJite of Mary-
hind, 25 S. C. IT. S. (12 Wheat.),
p. 4.'{9, cannot 'dejiend on the de-
gree to which it may be exercisj'd.
If it may be exercised at all, it mu.st
be exerci.sed at the will of tho.se in
wlios*' hands it is placed.'

" In ca.ses of implied limitations
or prohibitions of power, it is not
siiUicient to show a possibh' or
potential inconvenience. Tliere
must l)e u plain incompatibility, a
direct repugnancy, or an extreme
practical inconvenience, leading

i'^;

1 I- i

HosoN V. The
Township op
South
Norwich.

Tasciiereatt, J.

198 B.N. A. ACT, s. 92 (9).— REPRODUCTION OF OLD ACT.

irresistibly to the same conclusion.
Story's Const. U. S. s. 417.

" And I cannot see any such in-
compotibility or repugnancy in
allowing one authority to proiiibit
when the other does not, though it
might have the power to do so.
It has earnestly been urged on the
part of the appellant that as a
consequence of the Dominion Tem-
[)erance Act, 1H7H, the piovinces
arc now deprived of any power
that they might previousiy have
had of prohibiting or empowering
the municipalities to prohibit the
liquor trade. But I fail to see
such a consequence attached to
that Act. There is, it seems to
me, no incompatibility between the
two, between that Act and the
power of the municipalities to i)ro-
hibit. How can that Act of 1878
be deemed to be more iucom[)atible
with this power of the municipali-
ties than was the Temperance Act
of 1801 with the same powers of
the .same municipalities ? In the
main, this Act of 1878 is but a
reproduction of tiie Act of 18G4;
or, at least, both are based on the
simio i»rinciplc. Now, in 1864,
when the Temperance Act was
enacted by the sjune legislature
that had unlimited control as well
over the niinii<;i[)aliti<'s as over the
li(juor trallic, the provisions of that
Temiierancc Act were not deemed
to be inconij)Mtiblc with the powers
«lrea<ly pos.sessed by the munici-
palities on the subject, which re-
nieined intact ; and that they were
not incompatible, I apprehend, will
not be gainsaid. A statute like
the Dominion License Act of 1883,
to license the trade or authorize
the municipalities to license it,
might be, and, in fact, would be,
in the absence of the necessary
pio\ isions to avoid it, repugnant to
or inconsi-stent with a prohibitory
Act. But 1 fail to .see that two
prohibitory Acts, assuming the
'J'emperance Act of 1878 to be a
prohibitory Act, must necessarily
bo repugnant to one another, even
where enacted by different autho-

rity, or even where the power to
prohibit is conferred on two difFe-
rent bodies, especially where the
jurisdiction of the two is not terri-
torially the same, as is the case
with this double legislation on
this matter. For, by the Federal
Act of 1878, it is only to county
and city municipalities and federal
electors that is granted the power
to j)rohibit, whilst by the Ontario
Act it is in local municipalities uud
])ro\ incial electors, that the pow^
is vested. In Quebec it is tlic
municipal electors, when a submis-
sion to the peojile is ordered.

" The Privy Council in Hodge i:
The Queen conoidered that the
Ontario License Act docs not con-
flict with the Federal Temperance
Act of 1878. A fortiori, would I
say, two prohi))itory Acts need not
necessarily conflict with one another.
I do not lo.se sigb^ of the fact that,
as a local munic.|...''ty forms part
of a county municipality, where the
Federal Act of 1878 is put into
operation in a county it uecessiirily
follows that it is in operation in
every one of the local municipali-
ties included in it. The only con-
sequence of this, however, is that
the working of the provincial Act,
or of a bye-law under it, or the
machinery 1)y which it is put in
operation, may be superseded or
suspended in the municipalities
where the Act of 1878 is in foree,
but I do not 8e<> in that any incon-
sistency with the power of the pro-
vince to i)ass it as long as the Act
of 1878 is not acted upon, and re-
vive it when the other one ceases to
oi)erate where it has been put in
operation. The Federal Act can-
not at all be considered as legisla-
tion over the powers of the munici-
palities. It does not purport to be
pnything of the kind. It has no
connection whatever, and could
have none with the municipal
,'*ystem of the different provinces.
It is controlled altogether by a
majority of federal electors, Init
that, it is obvious, may not be at all
the majority of municipal electors

III

BJf.A ACT, 8. 92 (9).— CLAIM LIMITED tc OWN PROV. 199

ill II mnnicipiility, when that is re-
quired as in the province of Quebec,
mill, in fact, cannot be under the
statutes at present in force in some
(if tlie provinces, whereby women,
I'lir instance, are entitled to vote at
municipal, but not at federal elec-
tions. Likewise for the provincial
doctors, where, as in Ontario, these
lut-laws under the provincial Act
(lq)oiiil on tiieir votes. The majority
(if them nuiy not l)e at all a majority
(if federal electors, or rice versa.
Aiul the respondents, I assume,
would not liave any objection to
Mibmit to the Temperance Act of
1878, if itwa'; put into force in the
county of which they form pirt.
All that they chiim is home rule, the
light to ])iit a stop to drinking and to
taverns within their own territorial
limits. Even if the rest of the pro-
vince, or all the other municipalities
of their own county, choo.se to ilo
otherwise for their own jMiople,
tiiey should be as free to do so now
iis they were bisforo coufedcmtion,
tluiugh tlie provinces of British
I'olunibia, Prince Edward Island,
(Quebec, or all of them, and all the
other mnnicipalities of Ontario, may
tiivour within their territorial limits
II different policy. Whenever the
Federal Parliament prohibits en-
tirelv the liipior traffic in the Do-
minion, assuming always for the
|iin|)o,<es of this case that they havt^
tlie [wwer to do so, the respondents
will not complain ; the very object
tlicv are now contending for will be
iiltaiiifd. What they ask is to be
lit liberty to do so for themselves
till Parliament does so for the whole
Douiinion. Antl again, by an cx-
l)res.s provision of the Temperance
Act ol 1878, if the Act is rejected
hv the federal electors it cannot Ixj
Miliiiiitted to them again for a
lH.'riod of three years. Now, if
witliiii these thi'ee years a local
iiiiiHiei|)nlity, and a majority within
it of the provincial or nnniicipal
electors where that is required, de-
-iie to prohibit the liquor traffic
wilhin its limits, is ther«^ anything,
in allowing them to do 80,'incon-

South
NonwicH.

Tasciiebe.\u, J.

sistent with the Temperance Act of Huson i: The
1878, or repugnant to it ? It is all Township op
the other way, it seems to me. It
perfects it ; it aims at the same
result; it provides for the promo-
tion of temperance, where the Act
of 1878 fails; it promotes tenqwr-
ance wherever the Act of 1878 can-
not penetrate ; it replaces it in any
county where a majority of the
federal electors will not allow it
to come in, or where no attempt in
made to put it in operation. And
is there, in that case, any incon-
sistency or danger of a cla.shing of
powers in conceding to a local
municipality the power to prohibit
within its own limits, though the
rest of the county is in fa\our of
licensing ? And can it not Im; said
of the enactment now under con-
sideration what their Lordships
.Slid of the st*itute in Hodge v. The
Queen, that it is 'confined to mu-
nicipalities in the province of On-
tario, and is entirely local in its
character and operation ' ?

"The Federal Parliament has, for
inst;\nce, the right, I presume, of
prohibiting the sale of dynamite or
opium, or any other poison, all
through the Dominion. The appel-
lant would contend that, if Parlia-
ment has not enacted such a law,
the provincial legislature cjmnot
authorize the municipalities to pro-
hibit the sale of such articles within
their limits. Such a contention
cannot prevail. There are a large
numla-r of subjects which are
generally acce|)teil as falling under
the denomination of police regula-
tions, over which the provincial
legislatures have control within
their territorial limits, which yet
may be legislated upon by the
Federal Parliament for the Do-
minion at large. Take, for instance,
the closing of stores and cessation
of trade on Sundays : Parliament,
I t^ike it for granted, has tlu' power
to h'gislate on the subject for the
Dominion, but until it does so, the
provinces have, each for itself, the
sfime iHJWer. This .shows, it seems
to me, that the wonl ' exclusively '

lit',

HosoN V. Tub
Township of
South
Norwich.

Taschereau, J.

200 B.N.A. ACT, s. 92 (5)).— MAKING SHADOWY POWERS.

;

K '

in sec. 92 of tlio B. N. A. Act is
not susc(']»tiblc of tltt^ wiilc t-oii-
stniction that tlio a|»|)cllaiit would
put mjon it. Tlu'ii licrc all
that the re.xpoudciit contends for is
the. inuni<'ii)al power to prohibit
tht! liquor trade, or the jiower to
prohiltit as a p.irt of the municipal
institutions of the province, and
that the ])0\ver of tlie provincial
le<;;islatures ov»'r tliose institutions,
and tlu> municipal system in
f^eneral, is t'xclusive. The Federal
Parliament cannot in any way
touch them. On the appellant's
contention that such a prohibition
by the municipalities is a icyu-
lation of trade and commerce, and
therefor*' ultra t'ircs of the pro-
vincial legislature, I need not dwell.
It is settled that these words,
'regulation of trade and commerce,'
in the British North Auu'rica Act,
do not bear the wide construction
that the appellant would hero con-
tend for."

Citizens' In.snranc(f Co. v. Par-
Hon.s, 7 App. Cas, 90.

Hodge '.. Thii Queen, 9 App.
Cfus. 90.

Bar'K of Toronto v. Lauibe, 12
App. Cas. 575.

Bennett v. The Pharmaceutical
Assoc, of Quebec, I. Dor. Q. B. .330.

Pillow r. Thu Citv of Montreal,
27L. C. .1. 210; 3t)L. C. .lur. I.

" It was likewi.se held by the
United States Siiprt'iiie Court, in
Coolev r. 'i'he Board of War-
dens, 53 S. C. U. S. (12 Howard)
319, that ii State law, estab-
lishing ceitiiin pilotnge regula-
tions conceded to be regulations
of commerce, was valid until su|)er-
sedeil by the fedend legislative
power. And, as said by Field, J.,
in Sherlock r. Ailing, 9'3 S. C. V.
S. 99, ' Legislation in a great \ariety
of ways may affect commerce an<l
l»t»rsons engaged in it, without con-
stituting a regulation of it within
the meaning of the Constitution.'
Ca.ses to that .sjune ini[H)rt are A'c
parte McNeil, HO S. C. U. S. (13
Wall), 210; Willson r. Blackbird
Creek Marsh Co., 27 S. C. U. S.

(2 Peters), 250; and Gihnau r.
Citv of Philadelphia, 70 S. C. U. S
(3 Wall), 728.

" If the i)rovinces were deprived
of the right to all legislation where-
by it might be said that trade jmhI
commerce are in some way ic;;!!-
lated, or more or less affected, very
shadowy indeed would lie iiimiiv of
the powers conferred upon tliiiii in
express terms bv sec. 92 of (lie
B. N. A. Act.

"To apply to this case wlmi
Sway lie, .1 ., delivering the j udgiiiciil
of the United States S. C. in l{nil
Boad Co. r. Fuller, HI S. C. V. S,
(17 Wall) 560, said of the Unitd
States Constitution on the sjinic
subject, assuming that this stjitiiti'
in question constitutes in a sense
a regulation of trade and coininerw,
it is a regulation of such a character
as to be \alid until superseded liy
the paramount action of the federal
authority. And it nuiy very well
Ik!, notwithstanding what was siiid
in this Court in City of Fredeiictdii
r. The Queen, 3 S. C. R. 505, that if
Parliament had the power to proliiliit
the liqnortrade for the whoh^ Domi-
nion, it is not at all under the woiils
'regulation of trade and conniieree'
of sec. 91 of the B. N. A. Act that
it gets it. However, that is not
the question here. I may, neverthe-
less, notice what Harhiii, .1., of the
U. S. S. C, said before the Bebring
Sea Tribunal, on the questioii
whether a power to regulate iu-
eludes a p(»wer to [ii'ohibit : —

" ' 'J"he Briti.sh «'ounsel conteinle*!
that it is iM-yond the power of the
aii)iliators to prescriln! reguhtliuns
of that character (to proliiliit)
They argued that the tribunal eoiiM
not do indirectly what they loiilil
not do tlirectly ; that prohiliitidii,
in terms or by nece.s.saiy openitioii
of regulalioiis, is not regulation;
that the power to regulate is not a
power to prohibit. . . When eu-
forcing the view last slated, (•(iiinxl
asked us whether a [tower yiveu
by the legislative department Ion
nnuiicipal corpomtiou to regulnte,
within it» liuiitH, the sale uf aideul

B.N.A. ACT, H. 02 (1)).— IMPERIAL LICENSE ACTS. 201

spirits would give to siieli corpom-
tioii authority to prohibit nil sales
of such spirits. Pcrlmps not. liut
the ciise put docs not iiK't't the one
before tilt! tribunal. . . Itisnu'in
play upon words to say, in resiu'ct
to this treaty, that i)rohibition is
not legislation.' [Behring Sea
Proceedings, 31].

"I now pa.ss to the |)r()vincial
.statutory laws on the subject.

''The learned judges of the Court
of Appeal, in the Local Option
ciise, IH O. A. 11. 572, have .said
all that can In; .said upon tiu^
Ontario municipal hiw of any im-
port on this ([uestioM. Let us sec
now what light a Quebec candU",
or a reference to the Quebec law
of nuniicipalities, might throw nit-
on it.

"In 1771, by the II Geo. 3. c. 88.
s. 5 [ace 35 Geo. 3. c. 8. of L. C,
and 13 & 14 Vict. c. 27. of the hite
province of Canathi; see j)Ost\ a
license fee was imposed by the Im-
[K'rial I'arlianu'nt upon the sale of
licpiors in the provinc*- of Quebec
lis then con.stitnted. That Act is
.still in force in Quebec if not
in Ontario. The revenues from
these licenses were to fall into the
provincial fund, but in 1815, by
the 8 Vict. c. 72., the legislature of
the late province of Canathi de-
creed that the revenues from houses
of public entertainnuMit and tavern
licenses were thert-after to be ap-
propriated for nmnicipal |)urposes.
"In 18 17, by 10 & 11 Vict. c. 7.,
the nuniicipalities were given ile
novo the power to increase the
\nkv for li(|uor lici-iises.

"InlS51,by ll.tl5Viet e. UK).,
a larger control over the liquor
tratlic was assumed by the legisla-
ture, and a new system of tavern
licenses was established, its main
feature consisted in this, (hat
tnillic in licpior was proiiibiled
everywhere, except when allowed
hy the ilLseretionary powers of
uiu'iicipal councils and mnnieipal
eh'ctors; Smart c. The Corporation
of Hochelaga, 1 Legal Ni-ws, 255.
"By sec. 21 the i-evcnue from

Norwich.
T.^SCIIBRKAtr, J.

licpior licenses was again given to H^'^on v. Thb
the municipalities. In 1853, by 10 .s"*^*""' ''"
Viet. c. 21 1., an Act to the same Nobwi
effect, with certain modifications,
was passed for the cities of Mon-
treal and (^ueln'c. in these cities
the power to grant or refuse liceuse.s
was by that Act vested in the police
magistrates, but they had no power
to licens(! except upon the petition
of a certain nnniber of municipal
electors. All the license Acts in
the province have since, likewi.se,
made the granting of licenses deiK'ii-
dent upon the municipal councils
oi' municipal electors. I need only
refer for this to the Consolithited
Statuti's of Lower Canada, c. G. s. 1),
and to arts. 829-835, and follow-
ing, of the Kevised Statutes of
1888, in both of which these license
Acts are all cttndensed. A pro-
vision is to be found in (^very on(!
of them that no licc'uses are to be
issued in the munici[»ality wherein
11 prohibitory bye-law is in force.
So much for the license Acts.

" Now for the municipal Acts.
In 1855, by 18 Vict. e. 100., where-
by the present municipal .system of
the province was inaugurated, lociil
councils were empowered in express
terms, sec. 23, sub-sec. 6, to pro-
hibit absolutely the retail traffic in
liquors within t\w territorial limits
of the municipalitv. In 1850, by
1!) it 20 Vict, c' 101. .s. 8, the
county councils were authori/.ed to
probiltit entirely, in March of each
year, the side (>[ spirituous litpiors
within the eouiily. And by see. 11
the local councils were authorized
to pass such a bve-law for their own
niuniei|»alities whene\er the county
council had allowed the montli
of March to expire without having
pas.'ied one for the county. In 1800,
by 23 Viet. c. 01., the municipal
Act was consolidateil, but the above
pi'ovisions (if the statute of 1850
were h'ft intiict. Also in the
Cunsoli(hiled Statutes of 1801,
e. 24., these enactments are re-
enacted without any alterations, us
see. 20, suli-.secs. 10 and 11, sec.
27, sub-sec. 16, resiK'ctively. The

H >

]'? ■f'l

;

^'^ii

202 B.N.A. ACT, R. 92 (9).— MUNICIPAL LIQUOR LAWS.

HnsoN V. Tub
Township op
South
Norwich.

Tabciiereau, J.

terms are unequivocal. ' Every
municipal county (or local) council
may Hiak(! l>yc-laws tor proliiltitin^r
and |»revcntiii^ (to prevent or i)ro-
liibit) the sale of anv spirituou.s
liquors.' In IHOC. (29 & 30 Vict,
c. 32. ), sul)-sec. 16 ol' sec. 27 of the
Con.solidated Municipal Act of
1801, c. 21. above referred to, was
repealed and rcfilaced by a i)ro-
visior giving to local councils,
l)efore the .second Wednesday of
March of each }ear, the i)ower to
prohibit the .sale of any spirituou.s
liquors. This Act, piis.scd only
two years tifter the Temperance
Act of 1HG4, mu.st be taken as
another imeciuivocal declaration of
the legishtture of the late [a-ovince
of Canada that the power of the
nuinicipal authorities had not been,
in any way, diminished or restricted
by the said Temperance Act, and ,
that these powers were not incon-
sistent with or repugnant to tho.se
conferred by the said Act.

" Such was, in the province of
Quebec, the state of the .'Statutory
law on the subject at confedera-
tion. I need hardly siy that it
Jesuits clearly from it, whalc\er its
consequences nuiy be on the ques-
tion now under consideration, that
the whole .system of legislative
supervision over the litpior trallic
was so closely identified with the
municipal .system of the province,
and .so blended witli it, that they
formed only one. The ' constitu-
tional connection ' betwet'ii the two,
to u.seMr. Justice liurton's expres-
sion, was eomi)lete. Atitl up to the
present day the two are so worked
and pnt in ojieration as one that
every year, in a laige number of
the municipalities, the only, or at
least the principal, question at the
election for councillors is ])rohibi-
tiou or no prohibition. Tliis is a
mutter of public notoriety in the
province. Now, not long after the
coming into force of the B. N. A.
Act, the Quebec Legishiture, in
1S7C^ enacted a Municipal CotU-,
and, in continuance of the policy
that }:awl theretofore prevailed in

the province of treating the control
over the liquor traffic as a part of
the nninicipal institutions, and
lea\ing it to be as theretofore a
marked feature of the power vested
in the municipal authorities, it con-
ferred iq)on each local council, hy
sec. 501 thereof, the power to ]iro-
hiliit, and this, by extension of tlip
power, 'at any time' diu'ing the
municipal year the retail side of in-
t'Jiieating licpiors.

" And tliat enactment, with slight
amendments (art. 0118, 11. S. of
1888), has remained in force up to
the present day unchallenged by
the federal authority, and has betn
acted upon through the province
in a number of municipalities. And
at this very moment then' are no
less than 158 localities in the pro-
vince, as I gather from i,.Iieiid
somri's, where the retail sale of
liquors is entirely i)rohibited luidcr
that .statute. That has been in the
province theaverag*! yearly number
of such bye-laws since 1807. And,
as in Ontario, I may remark, the
enforcement of all such regulations,
restrictions, and prohibitions is per-
formed by the police force of the
locality wh«Te such force exists,
and forms a part of tlu; policeduties,
umU'r thecontrolof thepolicecourts
andpoliceconnnissioner. In fact, in
many of the rural municipalities,
the only annual |)olice regulatioii
is a prohibitory bye-law. If the
appellant's contentions were to
|>revail, all this legislation, all
these hundreds of bye-laws pa.xsed
every year since 1807, were, and
are, each and every one of them,
perfect nullities, not worth the
paper they were written on. Tiie
Leghslature of Quebec, besides the
statutes I lia\e referred to, has
since the Municipal Code, and after
the passing of the Feileral Tem-
perance Act, re-enacte(', in lf<t>H,
as law enforced in th«! province,
the Temperance Act o'. 1801, hy
art. 1095 of the II. S., which reads
as follows : —

" ' The municipal council of
every city, town, township, parish,

B.N. A. ACT, s. 92 (9).— CONSTITUTNLTY. & OLD ACTS. 203

or incoriwnited village, shall liavo
ilie power, under the authority and
for the enforcement of this seetion,
ami snhjeet to the provisions and
limitation.s, at any time, to pass a
liyc-law prohibiting the .sde oi'
iiitoxieating liquors, without sub-
mitting it to the eleetors.' The
Legislatin-eof Ontario, in 1887, by
the R. S., likewise considered the
Temperance Act of 18(M as still in
force within that province.

"Now, what is the jurisprudence
on the question in the province of
Qiicliee ? I will refer, of coin-se,
only to the Court of Api)cid. I
fiml oidy two cases in that court
on the (picstion, but they are l)oth
« exi)rcss anil dear that, unre-
versed as they stand, they settle,
iH'vond doubt, the jurisprudence as
far as the province goes.

"In Suite r. The Corporation
of Three llivers [1882], 5 Legid
News, 331 ; 2 Cartwright 280 [in
11 S. C. 11. 25], the Court of
Appeal in Montreal nuaniiuously
held that, at the time of confedera-
tion, the right to prohibit the sale of
intoxicalingli(piorswasi»os.se,xsedl>y
tile municipal authorities, and con-
sequently is to be deemed included
in tile powers vested in the provin-
eiiil legislatures, under the wonls
'provincial institutions' of sub-sec.
.Ssee.!)2 of the 13. N. A. Act, and this
in no e(iuivocal terms. ' VVe hold,
liien,' said IJani.say, J., for the
(-'oiirt, 'that the right to pass a
prohiliitory litpior hiw for the imr-
lK)ses of municipal institutions has
lieeu reserved to the local legisla-
tures by the B. N. A. Act.' T'hat
ease was airnincd in this Court, 11
S. C. K. 25, though not upon the
;troinul taken by the Montreal
t'ourt of Appeal; the point was not
•lealt with one way oi another. In
lf<yi, in the case of the Corpora-
tion of Huntingdon V. Moir and the
Att.-Gen., intervening imrty upon
llieeonslitutionul (piesliou, 7 Mon.
Q. U. 2S1 ; 20 K. L GH 1, the Coiut
<j1 Queen's Beneh again unani-
niously determined, reversing the
judgment a quo, that art. 561 of the

SODTU
NOUWICH.

GWYNNB, J.

Municipal Code, vesting the local Huson v. Tub
councils with the right to prohibit Township op
the retad tralhc in liquors witlnn
their territorial limits, is intra
vires of the |>r()vineial legislature,
and that a bye-law passed luiderthe
provisions to prohibit such traffic is
in all respects legal and binding.
It is im]iossible to get two decisions
more directly in point. This Court
has never had occasion to pass a
juilgment on the (pieslion, but in
the ease of Bergeron v. Lassalle,
Cas. Dig. 2 ed. 495, it nuiy not l)e
amiss to remark the power of the
Legislature of Quebec to pro-
hibit the sjile of li(piors in Three
Bivers and other cities of that class,
relied upon by the responcU'iit, was
not questioned either at bar or on
the bench, and the court gave due
effect to such a [)rohibition.

"The a[)peal should, in my
opinion, be tli.smissed with costs.
1 have only to add that, in my
view of the ca.se, the ap|M'al must
fail, even if the appellant's conten-
tions as to the unconstitntionaiity
of the Ontario legislation in tlm
matter wimc to prevail. For, if
th(^ province of Ontario luul not
the povvi'r to re-enact the sections
in (piestion of the Municipal Act,
it cannot have had the power to
repeal them e.vpressly or impliedly ;
and, consequently, they are now in
force as they stood at confederation
in the ISIunieipal Act of 18UG.

'* No reasons to (|uash the bye-
law of the municipality-respondi'ut,
as Inung against the provisions
of the sliitute as it then was, have
been assigned by the api)ellant. As
I conclude this opinion, I am in-
formed by the Begistrar that the
reference to this Court, which will
probably involve the (luestion in
issue in this case, has been ordered
by the federal authorities. I think,
however, that the parties here should
not be prejiuliced by this action of
the federal power, and that they
are entitled to a judgment on the
ca.se submitted to us."

Gwyune, J. : " After the argu-
ment of this case, upon the tirst of

>> Kl

r 1

t! ^11

I '

;

HDBON v. Till!

Town 811 1 r op

Sooth

Norwich.

QWYMNB, J.

The ConroRA-
TioH OF Hunt-
ingdon V. MoiR.

204 B.N.A. ACT, s. 92 (5)).— INCIDNTS. to MUNICIPALITIES.

llic (pioviioiis iiiv(il\«'<l ill it, cfiliiiii
c|ii«'s*i()iisv<i'fMiltiiiil(('<ll(Mis, uinlcr
nil Order ill Council ()t'tli(>l>()lli Oct.
IHSK'i, in llic iiiiitlt'i- (if |)i'(ilii1iili(in
of tlic trade in int()\ieatin<; Ii(|ii(ii's
under tlie itrovisions ol' tiie statute
in that lieliali', vliieii <|iiestiiins
fontaiii one wliieli raised the pre-
cise point in issue in tliis ease, and
in eonseqiienee all t'liitlier net ion
ill this ease \vas delerred until the
lu'iiriiif; and ar<;uiiieiil oi' the (|ues-
tioiis siiliiiiitted liy the Order in
Coiineil. The ar^uiiieiit, there-
fore, ii[ion the (|Uesli(in so siili-
iiiitted eonstitiited in ell'eet, in my
opinion, u reeonsideralioii, and, as
it were, a relieariiij; of tlie (piestions
involved in this ease. 1 haM' (Al-
tered fully, in my judfjinent on the
(piestions so siihmitted, into my
reasons for my eonelusions ti]i(»ii
the said ipiestions, which include
lliiit in this case, which judgment
contains the only jiidgnient J have
to deliver upon every one of the
questions llieiein involvi'd, namely,
that they all iini.st he answered in
the negative [xcc aiwrc]." Apjienl
dismis.sed with costs.

Thk Coui'ohation oi' Hunt-
ingdon V. Moii{, 21 March IHOl,
7 Mon. Q. B. 281, was nn ap-
peal from a judgment of the Cir-
cuit Court (Belanger, J.), dated
2G May 1890, which held n/tra
vires, and (piashed, a bye-law of the
Corporation of Huntingdon pro-
liihitiiig the sah' of less than two
gallons of intoxicating liquors at
one and the same tiiiie. This live-
law was passed by virtue of Article
561 of the Muiiici])al Code as
amended by 51 & 52 Viet, c
29. s. 6, K. S. Quebec, GllH.
Tht^ Corporation appealed.

The Quebec Municiiml Code of
21 Dec. 1870, M Vict. c. G8., by
Article 525, gave jiowi'r to every
local council to make, anicnd, or
rejieal bye-laws for each of the
objects mentioned in that chapter
(sub-ch. 1), and Article 501 was
" To prohibit tliesaleof intoxicating
liquors in quantities le.«s than tliree

gallons, or one dozen botthsofat
least three half-pints each, at (uic
and the same time, and the grant-
ing of licenses therefor, within |||(<
limitsof the municipalityand on tlic
ferries which are dependencies of
such municipality." 'I'liis Aiticlc
was, 12 duly 1888. altered by 51
& 52 Viet, c! 2!>. s. 0., by deleting
the words " three gallons, or it
dozen bottles of at least three luilf-
piiils each," and reading lliercror
"two gallons imperial iiieasiire, or
one dozen bottles of not less I ban one
pint each imperial measure." See
B. S. Quebec, 1888, s. 0118. Tlio
Court [Dorion, V.J., Uaby, Bosst',
Doherty, and Ciiiion, .IJ.] allowed
the appeal. Doherty, J., said;
" The right of the provincial legislii-
ture to pass prohibitory litpior laws
exi.sts as incidental to munieipnl
in.stitiitions." The local legi.slatiiro
had authority to enact Article 5G1
of the Municipal Code, and tlic
CoriKiration of Huntingdon liiid
the right to pa.ss the bye-law in
(lue.stion. It was not neces.sary to
enter into u h-ngthy examination
of the case, as the (jiH'.stion liad
lueii settled by the highest couils
Judgment of tin- court lielow, which
quashed the bye-law, was reversed,
and appeal allowed. The order of
the Court was: "Considering that
Article 501 of the Municipal Code
and the matters thereby provided
for are within the comjieteney nnd
powers of the legislature of this
jirovince, and not ultra vires there-
of, as in this cause pretended iind
pleaded by the respondent, by Ids
petition ill this ln'half produced;
and considering therefore that the
Municipal Council of the Coipoi'n-
tion, appeUant to this Court, in
passing and enacting the bye-hiw
aiipealetl again.st by respondent to
the Ciriuit Court, from the jml^'-
iiicnt of which this appeal hath
Ih'cii taken, was competent, innl
acted itifra rires under said artiiie
in passing said bye-law, and thiit
the siiiie is ill all respects legal and
binding for all th»' purposes ibeiv-
of, and of the said article; nnd

B.N.A, ACT, s. 02 (0).— OLD LIQUOR LAWS.

205

consiili'iiiij» tlint thern is orror in
the jiidilint'iit ii quo, to wit, llif
jiiilgmiMit rt'iulcivd on flic 2l5tli Miiy
\m) hy tlic CJireiiit Court, for tlif
t'oiintv 1)1" IIiinlinf^doM in tlic dis-
trii't ol' ni'tiuiitii'iiois in this, tlmt
it iu'iil anil iioi(U tlio contrary,
ami tlmt said artielc and hyi'-iaw
were so ultra vires, and tlio oon-
{•jusions of tlic Att.-Ocn. un-
foiiudfd ; doth ri'vcrsc and niako
void till- said judj^nicnt ; and rcn-
(ii'niigtlii' jiidj^incntwliiclitluM.'ourt
Ih'Iow on<;iit to have rendered, us
well on tiio respondent's said peti-
tion lus on the intervention in this
cause pled l>y the Att.-Gen., doth
dismiss the said petition, with
costs as well as in tiu^ court below
lis ia this Court, in favour of the
Corporation appellant, and H<{ainst
tiip said James Moir, the respon-
dent, and niaintuin the said inter-
vention without costs." Noveinher
11, 1S91, Moir apjtealed ajjuinst
this judn;nH'nt to tlui Supreme
Court, Canada, and counsel for
the Corporation having stfiteil that
sinen the above judfrinent the hyi^-
hiw ill <piestion had Ih'cu rcpeah^d,
and that the matter in question
was now merely one of costs,
the Supreme Court dismissed the
appeal with costs ; an appeal for
costs alone being incompetent. See
19 S. C. R. 3(!3.

In the Ontaiiio Local Option
Act Case, Sept. 23, 1H!)1, 18 O.
A. I{. 572, these questions were
put to the Appeal Court : — (1)
Had the Legislature of Ontario
jurisdiction to enact the IHth .sec-
tion of the 53 Vict. c. 50.,entituled
'An Act to improi'e the liquor Heense
laws'? (2) Or hml the legislature
jurisdiction to enact the sjiid sec-
tion a.s explained by sec. 1 of
54 Viet. c. 40? (3) Has the
council of a township, city,
town, and incorporated village au-
thority to pass bye-laws for pro-
hibiting the sale of liquors in the
oiiginal packages in which the
s<uiio have Iwen received from the
iinporteror inunufucturcr ; provitleil

that the bve-law before the final InreTm

I;' I

passing thereof has been (hily ap-
proved by the electors of the
municipality in the manner pro-
vided by the sections in that l»o-
half of the Muni<'ipal Act? (I)
Is a bye-law in terms of sec. IS of
53 Vict. c. 5(J., or as explained by
sec. 1 of 54 Vict. c. 1(5., invalid
where the bye-law does not pro-
vitle a fine or penalty for sales
contrary to its provisions ? The
Court "[Ilagarfy, (!.J.O., IJurton
and IMacleiinan, JJ. (Oster, J.,
• li'cliiiing to give an opinion)] held
the Act valid as to |)rohibitions of
.siile by retail. Hagarty, C.J.O.,
.siiid: "Prom an earlv iK>rio<l,ut least
as far back as 12 V'ict. c. SI., 1S49
[see l)clow], municipalities had tlie
power to regulate tjvvern liccn.ses,
and to limit their number. In
1853, by IG Vict. c. 184. s. 3, sub-
s. 2, they were given power to
pass bye-laws ' for pn^venting ab-
solutely the sjvle of wine, brandy,
f>r other spirituous liquors, ale or
beer, or any of them, by retail
within the municipality,' with a
.saving clause! as to .sales in original
packages containing not less than
live gallons [see Mow]. In 1858,
22 Vict. c. 9!). s. 245, sub-s. 6, there
is a clause, identical with that re-
enacted in the statute on which our
opinion is sought, for prohibition
subjwt to t\w approval of the
('Uictors. This is re|H'aled in C. S.
U. C. c. 54. s. 24(5 (1850), autho-
rizing the prohibition of sale by
retail. Then 23 Viet. c. 3 (18G0)
limited the numlK>r of licenses to Ite
granted in municipalities, s. 5 de-
claring that it was not to restrict nui-
nicipal councils from further limit-
ing the number or j)assing any other
bye-law muh'r sec. 24G of C. S. U.
C. c. 51. In 18G4 the legislature
passed the Act 27 & 28 Vict. c. 18.
(commonly called the Dunkin Act).
Sec. 1 provided that tht! munici-
pal oouncil of every county, city,
town, township, &c., should have
jMiwer to pass a bye-law for pro-
iiibiting the sale of liipior and the
issuing of licenses within such

Ontario Locai,
Optioh Act.

1^:^

i '■ i

206 B.N.A. ACT, s. 02 (n).— EXPRESSLY TRANSPERRTNO

In re Thk
Ontario I^ocal
Option Act.

) ! I,!

\-' "ill

\\\\-

III

county, Ac, niul full provision wns
iuikIc as lo its Itrinfif nppnivod liy
tlii> elt'ctoi's. Sec. 2, siili-scc. ,'{,
ailowt'd (listiilcrs iiml liicwcrs to
hu'll in not less llum ctTlain nanii'tl
(|uantiti<'s. 'I'lic brewers' ami dis-
tillers' ciiHise still appears in
R. S. O. (lHS7),e. lOJ. In IHfJ.},
in 1»0 .t ;{() Viet. <•. Til. s. 2 1!),
Hnl)-see. !) is llie clause allo\vin<; a
bye-law for proliiliitin<; the sale in
taverns by retail, mid I'or |."oliibitin<;
totally tlu> sale lliereol' in [ilaces
other than houses of jiublic enter-
tainment, and this clause is identi-
cal with the clause now in (piestion.
See. 252 declares that no license
shall be necessary I'or sellinn; licpior
in oi'i<j:inaI ])acka;jes. Conredera-
tion took phiee 1 .July 18(57. The
first Ontario lefjislation seems to be
IH(5!). 32 Vict. e. ;{2., The Tavern
and Shop Tiicence Act. Sec. G em-
jiowers UHMiicipalities to pass bye-
laws in terms identical .with the
clause in ((uestion. Src sub-sec. 7.
Sec. 10 repeals the se<'lions 2-10 to
20."} of the Act of Canada, l.S(i(i,
cited above. This sec. 249 is that
allowin;; such a bye-law before
confederal ion, iuid thus the same
statute repealing the clause re-
enacts it in the .same teriu.s. So
thinj,'s renaiined under the la.st Act
from ISO!) to ls71. In 1H7I,
.'57 \'ict. c. ;{2., amending; and con-
solidiitiuf^ another Act, not beariiifif
on this point, and the prohibition
clause was omitted in deelariiifj the
powers (sec. !)) of municijiidities
in counties where the Temperanc(!
Act of 1H()1 was not in force, leav-
iiifl, however, the power to rcpulate
and lo deline the conditions and
ipialilications rctpiisite forobtainiii<j
licenses and the power to limit the
innnber. And sec 4t) Vict. c. IS
(().), and R. S. (). 18H7, e. 182."

[Heads sec. 18 of 5.'} Vict. c. 5(J.,
the Act in question]. [His Lord-
ship then referred to the {,'anada
Temperance Act, 1878, as con-
taining mo.st stringent iirovisions
against the sjvie or barter of every
intoxicating liquor, ami cites
sec. on, sub-sees. 2, 3, 7, and 8.]

" It is clear that no license cari
avail against any violation of ilh'
Act, except within the allowed
limits. 'I'he Act contemplates ihc
issue of licenses to brewers and
distillers and manufacturers ul
native wine. For at least 1,'i yciui
pri<a- to coid'ederation, n inicipulj.
lies had this jaiwer of prohibitjnjr
the sal(! of liquor. 'i'he powiT
existed at confederation, and was
contiinu'd by Ontario legislation in
the Li(pu)r License; Act down to
1874. The J)()miiuon Act tlicn
interposed. Now the Ontario
Legislatiu'v' revives the dropped
clau.se. Under the Confederal ion
Act, ' Miniieipal institutions in iln'
l)roviiice ' are in the class of sidijecis
within exclusive |)rovincial regula-
tion. It may be wd'ely said tliiit
there is no apparent intention in
the Confederation Act to curtail or
interfere with tl.o <xisling geiieriil
powers of municipal councils, uidcss
the Act plainly tran.sf< ;;: luiy of
such existing powers to the Do-
minion jurisdiction. Where either
the Legislature of Camidii before,
or the Dominion Parlinment after,
confederation provided enactments
as to prohibition iiu-onsistent with
the municipal regulations, the latter
must give; wav. When either under
the A<'t of "18(54 or of 187S a
county passed u Prohibition Aet,
the powers of a townshij) so lo do
would be at least in abeyance. 1
rca<l (he claus»> 18, restoring the
olil powers to the municipality, lo
apply only to jdaces wlu'ic neither
of these Acts is in force, ami to
apply only so long as the ])ominioii
Act shall not beajiplied to it. Tlui
liM'al legislature specially distaiiis
any exercise of jurisdiction iM'yoiid
the revival of provisions in force at
coid'ederation. As I nnderslainl
the various interpretations given to
the Confederation Act in its distri-
bution of legislative jiowers in the
Privy Council and iu the Supreme
Court, and without attcnqjting to
cite from the voluminous authorities
on the subject, I arrive at the con-
chisiou that the Legislature of On-

'! !

BN.A. ACT, 9. 92 (0).— PRECONFEDERATION POWERS. 207

tiirio liml jurisdiction to pnss the
IStli w'i'tioii. Tiicffft'ct is to li'iivi'
till' iiiiwcr of proliiliition in tiii!
iiinnii'i|ialilit's us it wiis for so iniiny
vein's iM'forc, iiiiil at tilt' tiiiit^ of tliu
iiiilH'iiiil si'ttlciiu'iitof llic Constitii-
lioii iif our Dominion. I do not
()V(rlt">l< tiic i|iH'stion niiscd as to
tills licin;; an alleged intt'rfci'cnct'
wiili 'Iradf and coninu'rci'.' Riis-
mH c. Tlic Qufcn [see above].
Till' (ii)inion of tlic Suprcnu; Court
ill ilmt case, tliat a <;i'n(M'al law likt;
llic Ciinada 'rcniiM'raiK'o Act canio
witliiii llit^ I'.vclnsivc power of tho
PiiiliiMiit'nt of Canada, is thus
iiotift'il, the Privy Council dcclar-
iiij; tlmt tlu'V must not \k uiK'.cr-
Modil IIS intimatin<; any dissent
iroiii tiie opinion of the (.'liief
.Iiislii't' of the Supreme Court of
('aimilii, and the otiier jiidfre.s, who
iijso licid tlmt the Act as a jjjeneral
i('f;iiliiti(in of the trallie in intoxi-
cating; li(|Uors llirou<;hout the I)o-
niiiiioii fell within the class of
siilijcct, ' 'l"he regulation of trade
ami (■oiiuuerce,' eninneriited in that
scitioii, iiud was on that <;round a
valid exercise of the legislative
limvcrs (if the Parliament of Canada.
Tlii'l'rivy Council decided the case
(111 (itlicr grouiuls. I am wholly
I'liiilile to see how the power
gi'iiiitcd to township ninnicipalities
to jinthihit the retail sale of liquor
liy any reasonaltle construction
ionics within the words ' trade
ami coiimuM'ce,' as used in the.
Fcdcratidu Act. The power, as
already pointed out, had hoen for
many yciirs vested in the townsliips.
If siKJi a construction prevail, it
would seem to me to interfere most
extensively with many powers
granted by our Municipal Acts.
They are full of provision.s, not
only for licensln'', i»ut for regula-
lilting, goveining, and in many
cases preventing, acts locally aft'ect-
liig trade and couimen'c in the
locality, such as auction sales of
gocds; Imwkers and pedlars; regii-
liiting ferries; for preventing exhi-
liltions held or kept for hire or
luiwling allevs and other

IH'Otlt

places of Huuiseinent ; limiting the ^>* >"" Tiiii

nnmher of victualling houses ; regii- Ontario Local

, ,. ,. 1 , 1 »i 11' Option Act.

lalion of nuirkets and the .sale of

certain goods therein and on tho
streets — most extensively inter-
fering with the rights of sale and
trading in cities and towns-; for
regiiiatlng and preventing various
luannfactories ; preventing danger-
ous triules ; forestalling and re-
grating, Sn'. All these powers
existed at the confederation, and
1 am of o|)inion that there can lie
no interference with such power
by any fair interpretation of the
words ' trade and commerce.' I
arrive at these conclusions in my
view of this prohibition clause. I
read it as it stands in the Act of
18()H, and in connection with the
rest of that Ai't, and especially with
the 2o2nd section. Although it
uses the words 'prohibiting totally
the sale thereof,' I think these
words must refer to the preceding
words, which deal with the selling
by retail, and merely prohibit such
selling in every place. Tlie sub-
ject of legislation in the Act was
tho granting of shop and tavern
licenses, for limiting their number,
&e., and councils are allowed to
pr(diibit the sale by retail in inns or
hou.si^s of entertainment, and wholly
to prohibit the sale thereof in shops
and places other than houses of
public entertainment. I read this
as necessarily confined to the retail
trade, which is the subject dealt
with, and for which a license is
re(piired. Then, when sec. 252
declared the general law to lie that
no licen.se should be rcipiired to sell
in packages of not less than five
gallons, it coidd not Ik' intended
that such rights should be destroyed
under tlu! wording of the ))rohibi-
tory clause, or, in other words, that
such clause extended to the sale of
liquors in manufactories within the
municipality in the specified larger
quantities. I think the general
wording of the Act and its general
clau.ses clearly indicate that this
prohibitory clause is dealing solely
with the retail business. The

>l .M

:. ' M

f : rl

I
;

I I

I 'I

' Ml

'■• i i ,

In re Tiik
Ontario-Locai.
Option Act.

208 B.N.A. ACT, H. 02 (9).— OLD LAWS im re BREWErtw.

piacticc of ' drinkiiifj,' iim •jcncnilly
iiiiilor.Mtodil in tlir coiinli'V, is iiiini'il
at, wlit'tlirr it limy occur in taxciii,
shop, or liny other place. I tliiiik
it to 111' a slrainctl nnil iiiinccc.><siiry
con.stniction to apply it to all tlic
([ciilin}{s of iii'cwcrsaiul ili.stillcrs in
llic .sale of tlicir <;oo(ls in tlic ordi-
nary coiii'M' of tlicir liiisincss. if
tlicy sell ill the style of the lavern-
keepers in tlui retail iliinliiif; liiisi-
ncss, tliey lirinj; themscKcs within
the Itye-law. Tlie late Sir William
Kicliards, in his jiid<;iiicnt in Slavin
V. Oiillia, 3(J l^ 1*. Q. B. IT)!),
dearly reco<;ni.ses the nieanin^ of
the section to lie confiiied to tlie
retail hiisinc.ss. So construed, it
can hai'dly he said to infriiifje on
tho Hiiliject, of 'trade and coin-
merce,' which hcloiifjs to the Do
minion anthoiity. Tiie followinj;
qu(!Stioii has also heen snhmitted
for onr opinion : — ' (■'{) Has the
council of a townsliip, city, town,
and incori)orated villiifre authority
to jm.sH liye-laws forprohihiling the
stilts of li(|uors in the original pack-
ages in which the same have been
received from the importer or
maniifactnrer; |)rovidc<l that tho
byti-law before the final passing
tliereof has been duly approved by
the electors of the nnniicipnlity in
the nuuiner provided by the .sections
ill that behalf of the Municipal
Act?' I cannot but rcf^ret that it
should be thouffhl proper to submit
.such a (piestiou to this Court. It
is not a (piestion as to any courses
taken or to be tak(>n by tin; Execu-
tiv(! Government, but it rcfcr.s
wholly to the course to be lulopted
by the municipal authorities in the
introduction and pasHinp; of their
bye-laws. It is in effect the same
as asking a delinition of the
powers of assignees in insolvifncy,
or of sheriffs, registrars, or of rail-
way or other companies chartered
by the province. 1 think, with
much respect, that a perusal of the
Act of 1H«)0, c. 5:}.. would not lead
ordinary minds to the opinion that,
although the latter authorizes tho
submission of 'any matters which

he (the Lieutenant-Governor)
thinks (it to refer,' it would lii>
reasonalile to expect thisaiiplication
of the general language to ipics.
tions, not as to the validity of ncl.s
of the legislature or the execuli\c,
liiit as to the acts of municipal ai
trading corporations, or of any cliiss
of oHicials. 'I"he legislature in tlic
late Act, Tji Vict. c. KJ., dischiims nil
inlerfereiice with the Uo'Jml section
of the Municipal Act, 2!) it ;U) Vict,
c. ')!., passed by ('aimdii, as to
tavern or shop lii'cnses being ic-
ipiircfl for the sale of liipiors in tlu>
original packages of not less tlmii
live gallons or one dozen bottles,
.save in so far as modified by sub-
sec, J) of .see. 2 10, being the section
as to bye-laws for pi <)hii)itiou. No
notice is taken of the repeal by tli(>
local legislatui'c of this 25211(1 clause,
and a large number of others by
the statute 32 Vict. e. 32. This
leaves it, as I understand, conceded
that the brewers' and distillers'
clause remains still tin? law of the
land. If so, I consider that tiny
may .sell the ([iiantities mentioned
in the original packages; in other
words, that the municipality cannot
interfere with their action. After
.so selling, it would then seem to
follow that the puri'hascr coiihl not
retail the contents or sell after
bulk broken. But the words of the
sec. 252 go further, and appear to
authorize u .sale of the original
jiackages as received from the
manufacturers, that is, the dis-
tillers. If this section be held
to govern, it will have this eonstruc-
tion. I think the intention of the
legislatures, both federal and pro-
vincial, has been throughout to
preserve the trade interests of
brewers and distillers as distinet
from the retail di-alers. I therefore
answer the 3rd question in the
negative. As to the 4th question
( ' Is a bye-law in terms of .sec. 18.
53 Viet. c. 56., or as explained bj
.see. 1, 5t Viet. c. 46., invalid, where
die bye-law does not provide a fine
or iM'iialty for sales contrary to its
provisious ? ' ) I answer it iu the

n.N.A. A(T, s, 02 (0).— OXrs ON DOMIVION.

200

iii'i'iilivc. I ilo Mill coMsidcr lliiit a
livc-law omitting to prov idf ii pcii-
iijiv i« iii'cosni'ily bud. It iiiiiy l)c
in,i|rirli\(', liiit 1 dii nut tliiiik any
I. lint uould ([iia'^li it dm any >n('li
;.'iiiniiil. Hoiilo.tln'i'i' lai^lit lu'sonic
i'liiii'iil law ill fxistcMcc |ir(>\idiM}^
fill' |H'iialli('s Milder all l>yc-la\v^<."
TliijilioM' isa iicarly full jiid^nu'iit ;
ihc I'dllipwiiijj is an extract : —

jiiatoii. J. A., said (p. oSo,
IS 0. A. If.) : " It does Mot sM}i-
:.'i>t it^ell' to my iiiiiid as at all
niiu'iiisive ill favour of tlic |M)\ver
(if llic local lef;islatiire to deal with
till' saliject of pniliiliitioM under
till' words ' iiuiiiici|(al institutions,'
iliiit iirovisions in reference to that
«ul)j('('t were at the lime of the
|i;i-MM;;of the Confederation Act to
111' t'oinid ill our own Miiniciiial
Alts, and had been so for many
wars. It must not he forj^otten
iliiit the h'j^islatiire of the old |iro-
vimv of Canada, which imsscd
ilinse Acts, had. plenary powers of
liu'isliition, ini'lndin;^ the power to
n'L'iiJiiti' trade and comiiicree, to
ili'.'ii with the criminal law, and in
till! nil the powers which arc now
iliMiilinted Itetweeii the J'arliament
111 till' DoniiMion and the Icf^isla-
•iins of the provinces. Having
lliiit power, it was clearly conipctcMt
111 the legislature to coiitido to a
iiiiiiiicipal council or any other
liiiily of its owM creation, or to
iinliviiliials of its .selection, author-
ity to laako byo-laws or resolutions
as 111 siilijects specified in the oiiact-
iiii'iit, with the ol)j(H't of carrying
it into effect ; and the provision in
qiii'stioii being fouml therefore
within a Municipal Act in one of
till' provinces, furnishes no con-
liusivt' evideni^e that by the words
'niniiii'iim! ''istiliitioii^ ' it was iu-
tt'in' >1 to conli I every power which
* he contained in .such an Act
n ihe legisi ''ires of the pro-
wiiivs." "It ,y, not without
MiiiH' reason, lie conteudt-d that
tliciv no inherent connection be-
twc' the liquor traffii- and mniii-
cipui institutions, which i.s perfectly
tnie, bnt there wns n eonstitir niil

S 2340.

coiniectioll. Ill, I lielieve, all the
provinces the power to regulate by
the granting licenses tosell iiitoxica-
tiiig liijMois existed; whilst ill many
the power to regulate e\eM to the
extent III prohibiting it altogether
existed as a matter of police or
niunieipal regulation, so that we
have to regard it in the view that
at that lime the regulation and pro-
hibition had I'onie to lie rcganled
as niMiiicipal regulations, which
were guaranteed to the provinces
Milder coiifederat ion, and made part
of their rights liy sec. !)2. I come,
therefore, individually, to the con-
clusion, although this point has not
yet been pas.sed U|ioii by the Judicial
Committee, that under the term
'niunieipal institutions' the local
legislatures' power to iii'ohibil was
included, and if the [lower, the ex-
elusive power to (h'al 'Witli this
(piestiou." " Ueiiigtheiia matterof
that kind, and one of a merely hical
nature, that i.s to say, coniined to
the [iroviiiees, the onus is on those
who contend that it is ultra riics
to show that it comes within llic
)ii>wers granted to the Dominion in

fn re Tun
(Intviiiii LiiC.'.I.
Optiiin Ait.

the !)lst sec.

"'i'lie ratio (Uri-

(/riiili in HiisscU v. The (Jiiccii in
the I'rivy Council proceeded, as 1
UMilerstaiiil it, upon this principh-.
The .ludicial Couimittee then> held
that the ea.se M\ jiriiiidfurie within
sec. 01, under the general power
(in aihlitioM to the enumerated
powers) to make laws for the
' Peace, Order, and CJood Go\('in-
ment of Canada ' ; and it became
necessary, therefore, to ascertain
whether it also fell within the
eimnierated cla.sses of subjects in
.sec. 92 assigned excilusivcly to the
provincial h'gislatuies. It appears
upon the face of the judgment
that there were only three classes
of subjects under which the appel-
lants' counsel contended that the
case came under sec. 02, namely : -
(1) Shop and Tavern licenses for
raising of a revenue. (2) Proi)erty
and Civil Rights in the province.
(.3) Matters of a local and private
nature within the province. It is

210 li.N.A. ACT, s. i)2 (n).— OVEHnORXK BY DOMINION.

In re TilK
Ontmiiii Locai,
(M'Tio.N Act.

perfectly clenr ihnt it did not i'liil
witliiii iitiy (>r tliese. I liiiNe j^mie to
(lie tniiilileolObttiiiiiii,' tile ease |ire-
^<ented to llie Jiidieitd (.'oniiiiittee in
tiiiit a|)|H'jd,:ind tind no reliance was
]ilaced npon snli-sec. S, hut it was
mainly argued lliat the power ul' tlie
pro\ince to deal with the ipiestion
was derived i'roni siih-sec. J); nnd
Sir Kiehard Conch, in conunentin};;
npon it in a siihsi-cpieiit ease, says,
'1 do not I'ecollect suh-s'ee. 8 heinj;
relied on; I think all the clauses
that were relied npon in the arj:ii-
nient are noticed in the jud;iinent.'
It i- sometimes saiil that al-
tliou<;h this suit-sec. H was not
calleil to the alleiition ol' the .hi-
dieial Conunitlee in IJussell c. The
C^ueen, that that case was recon-
sidered and aliirmed in Jlodfje /•.
The Qi"'en, hut the same n'tiiark
applies to that decision. The
•Judicial Committee were not in
that case c'iusideriufj, nor would
their attention he di'awn to, ihni
suh-seetion, nor to 2!) and ."U) Vict,
c. ')1. sec. '.'10, suh-sec. !). The
(piestioii there arose under the
Ontario Liipior Liccn.se Act, 1S77,
uhich dealt with a totally different
matter. 1 consider it as a mere
allirmanee oi' the principle of de-
cision laid ilown, not only in
Kussell r. The (jueeii, hnt in a
innnher of othei- ea.ses, and I ven-
ture very huiuhly to suhmit that if
this snl)-see S had lieen hronj;lil to
their iioriships' attention, and they
had phued the same interpretation
n|H)n it which I have done, it would
ha\e followed as a matter of coiu-se
that, foi' reasons jfiven in that judi;-
inent, that decision would have hem
diiVerent. And n<iw I wish to
notice a |ioint upon wh'eh 1 ihiuk
a j^ood deal of misconeeption has
exi'-liMJ. It has never Ik'cu sii;;-
};e>led in the iludicial Conuniltee
(althou< h I ha\f seen some such
opinion expressed ill other <piar-
tei's), that in any case which comes
under the resicjuary legislation of
the Dominion, that le^islntion can
in any sense override a suhjeet
whi<'h comes under the specific

enumeration e.mtained in see. !)2.
'I'hus. /iriiiii! J'lirif, in the Uu^m'II
case, under t he Words * I'eaee, Kidcp,
and fiood <;ov( rMment of Caniulii,'
the power would exist to pass a
prohihilory li(pior law, hut when,
ever you tind in sec. U2 ' nnmiei|i!i|
institutions' interpreted as we luc
interprelin<; them, the ri^dit ■'' iji,.
Doiiiiniou to lejjislate upon tii'
suhjeet is displaced; otherwisi', ;i>
remarked Ity Strong, J., the Dd-
minion Parliament, hy jieneralizinj;
a law and niakin<; it applicahlc u,
the whoU> Dominion, coidd nul-
lify the i>owers reserveil to ttic
provinces under the Conslitutieiiiil
Act. And 111' ipioles in conlir'iiii-
tiou of his o|iiuion a ijuestion |iiii
to counsel hy the Piesident of tin
I'rivy Council. 'Do you niciiii
that hy freuerulizin}j; the ]M)Wti<
contained in .sec. 02 the Domiiiidii
Parliament can take away tin'
powers of the local legislature-'
A moment's eonsideralion will sIkiw
that they possess no .such |.<)W(r.
I think tl.e principle nnist he clem,
that neither the Dominion Piuiiii-
meut nor the local le<];is'-'tui'e ciin
attract to itself a jurisdiction in
matters assijjued exclusively to tin
olhel" Jtower hy the men' device dl
(•nlai-d^ing the <jeoj;rapliical areii si
as to iiu'lude the whole of tin' |iie-
vinces ; noi', in the other case, \>\
restrietinji the area within which
the power is to Im> exorcist'd. Ami
1 wish to add that thei'e is iiosiuii
thing as overlappir^ conteiupliilx!
in the A<'t, nor any .such principli
as '. :al Icfjislation fjiving way h-
or heing overhorne hy Doaiinioii
legislation, as would ap|M'ar sonir
times to occur in the courts of iln
I'nited Slates, <'Xeept in the l«"
cases pro\i(led hy sec. J),). Willi
the exception of th(!se two ciiss
the disti'ihutioii of legislative hint
lions is of an exelusixe charjiclir,
ami heing exclusive, if it falls willim
the juri.sdiction of one parliMiiiiii;.
it is necessarily excluded from lliiii
of the oilier. Once we tind litf
the power to regulate or proliili:
the Nile of infoxicatin/ licpiei-s m

B.X.A. ACT, s. n2 (f)) — FUEDERTCTOX V. BINDING. 211

pvcniiniltTscc. !)12, it iiiusl lie rcjiil
,i> nil i'.\<'i'|)tion 1(» si'c. Ill, whicli
wiuilil llit'ii rend : Tlic Piirliiiniciit
iiuiv iiiiikf laws tor llic pfiu't', (irdcr,
and <;(mh1 jjovcrimicnt of Ciiiiiulii,
lull lliis is not to interfere witli llie
riglit "iriiiiled e.\<'liisis('ly to tlie
loi'ill le^isliltnres to )'e<;illiile llie
iii|ii(ir triillic. 'I'liiit lliis i^ ilu-
view tiiki'ii by Lord IIo))lioiisi> in
ilii' I'rivv ( v.nni'i! ii,>i>eiirs, wliere
hi' siiys lliiit Uiissell r. Tlie Queen
(loi's not intend todeeide tliiit if tlie
<nlij(ct isdiieiittrilmted to the pro-
vinci.'il lejiisliitnres tlie Doiiiinion
(•■111 p't sei/iii of it liy exteiidiiif^ it
hcyoiid the province,"' His liord-
(iliip tiien referre<l to see. !).), and
cDiitiimed : " Tliere is, in my
iipiiiioii, no ^eiierid rule or |irii)-
riple, and no <{i'oiinil foi' t)ie eoii-
t'litiniithat I have sometimes lieui'd
ii(lviiii('ed,tliat ill rase of eonfliet the
Ir^jislature of the Dominion niii.st
pri'vail ; on the ooiitfiify, tliei-e can
ii' no sui'h conlliet. Kaeii is
supreme lipoil the suhjeets eli-
lni>!.'d to it, and it was assumed in
till' Iiii|M'rii!l Act that there eoiild
li.' no eoiilliet exeept ili the two
('imiiierated eases [see. !)').] If for
till' reasons I liave mentioned this
sllliject does fall within suli-see. S,
iis ii portion of the mnnieipal iii-li-
inliiiiis <if tlie province, is tiiere
iiiiyiliiiii^ in miy of the i>owers as-
si;.'iieil eNchisively to the I'arliament
"ICiiiiaila to conflict with it? The
only one which can l)y any stretch of
interpretation lie held to do so is llial
rilaliiij; to the rc^julalion of trade
mill coimiierce, and many of the
nniiirks I Imve made will c(piany
apply to this lirancli of the case.
Il I iM,i correct in assumin;; that
till' n;;lit to pass a prohiliitory law
exists ill the local le<;i>lal lire," even
if it (loi's incidentally atVeci trade
"iiil coiihiierce, it must Ih- hehl, in
tlie IniiMjiiacre of that eniiiieiil and
l'";niri| jiidjr,,, Dorion, (■..(., that
lI'N iiiiidciiial |)ower is incliided in
III'' lifilil to deal with it ; in other
«|'i'ls, the rijjlit so to deal with
li'iiile and coiaiuerce iiiiist he re-
pi-ileil lis an cNccption to the

<j;eneral power. I should not re- ^^ >■« Tin?
pinl the Words *re!.;iilatioii of trade

anil com

nierce,' ill their unlimited
sense, e\»li if illicolit rolled l»y the
(diitext ill .sec. !)2 and other parts
of the Act, as e.vtcndiniif to xiicli a
rcfjiilation as a prohibitory li(|Uor

Ontario Locai,
Option Act.

aw III a |i

roxiiK'c: but, read in coii-

neetioii with siil)-sec. S of sec. !)2,
they must, I think, be r(>adasif it had
contained a proviso to this effect —
' but so as not to interfere with the
ri^ilit reserved exclusively to the
provincial le<;isliifiire to prohibit
the sale of iiitoxieatiii}^ liquors.'

That

llie ( f interpretation

laid down by the I'rivy (.'oiincil in
a M'fv early case, namely, that
sees. !)1 and 02 are to 1m' read to-
{jether, and tlie lan<iua};e of one in-
terpreted, and, where neeessiiry,
moditied, by that of the other.
This would be inj view were I at
liberty to state my own opinion,
but, te« at present advised, 1 think
we are bound by the decision of the
.Supreme Court iiiCitv of Fred<.'ric-
ton r. The (Eileen, .'} S. ('. R. nor),
where that court held, Ileiiry, J.,
disseiitinjx, that the power to deal
for with this suliject was embraced

with

iib-sec. 2, relatiiifj to th

re;;iilatioii of traile and commerce.
It is trill- that the (h'cisicm in the

I'rivv Vi

roceeded iijion

other fjroiinds, but they say ex-
jircsslv, 'We must not lieumlerstood
as intimatinfi any dissent from the
opinion of the (.'hief Justice of the
Supreme Court of Canada, nnd the
•ther judges who held that the Act
fell within that section.' It seems
to me that, until expressly reversed
or reconsidered, that jiidf^inent is
bindiiifj; upon us, whatever may be

my own o|iinion

In tl

le same wav

the jiidiiiiient of the .ludicial Com-
mittee, thoiifih based upon a state
of facts which rendered any other
jud;;menf, in my opinion, iiii|tos-
siltle, is, until reconsidered upon
the additional material to wliieii I
iiave referred, bindiii}; upon me as
a jud;{iiieiit. If, therefore, wo hml
lieeii ilealinp with the penernl ques-
tion as to the ri>;lit of the jirovin-

I 1

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212 B.N.A. ACT, s. fl2 (9).— SUMMATIY OF OLD ACTS.

OiTioN Act.

1 •-:;

i •^'

2 . ' ■ f

:'h

iti

/« re The cial l('<:;i.sliiturt's to p.-iss a iirobilti-

()NTAiiio LocAt ,, ij . j.,^^ I ^|,„„i,i |,.,v,. )„.i.n

rii>Tmv Ar-T •' », 111 I I • I •

('unsti'iliiii'il to IkiIiI Mich U-^^islation,
contniry to my own opinion, ultra
vires; l»ut tlic question is fonliiicd,
ns I iindcistand it, to the power of
tln" lojiislatiirc to rc-cnai-t sub-sec. J),
controilcii at tlic time of confcdci'-
ation Ity sec. 2")2. Sub-sec. 0 is
not very clearly exi)n'ssed, and \
must confess my first readiii}: of it
led me to the conclusion that it
referred to two distinct matters,
1st, the prohibitinj; the sale by
retail in any inn ; and, 2n(l, tlu>
prohibition alto^etiier, whether by
wholesale or retail, in any place;
but upon further readin<; the various
Acts then in force relating to fer-
mented or other mamil'a<'tureil li-
quor, andsec. 252, 1 am satisfied that
the, whole section was intended ta be
confined to sales by retail in inns,
and such sales as were authorized
by shop licenses, and I adopt my
brother IMaelemian's reasoning upon
this branch of the case. 13eing,
thcrtiforc, a mere polic<' regulation
for the sale by retail, the (Miactment
is not open to the possible ob-
jection to whicli I have referred.
I answer the two first cpiestions
((1) Had thcLcgislature of Ontario
jurisdiction to enact the IHtli
S(>('tiou of the 53 Viet. e. 50., and
oiitituled ' An Act to improve the
fAqiior License Laws ? ' (2) Or
had the legislature jurisdiction to
enact the said section as e.\-
l)lained by .sec. 1 of 5t Vict. v. !().)
in the affirmative. Question .'{
[see df/ore] I answer in the nega-
tive, assunn'ng as [ do that the
question is condned to the power of
those bodies under the enactments
referred to in the two previous
questions now reviewed. As to
question I [see ti/xire], \ do not
consider a bye-law under these
sections necessarily invalid l)ecause
it omits to provide a penalty."

Maclennan, .I.A., said (18 O.
A. n, pp. 5!)0-7) : "Coming to
the couelusiou that the enactment
in (iiieslion is confined in both its
luembeis to sales by retail, I think

if follows clearly that it was com.
peleut to the Legislatui'eof Ont.iiio
to re enact it as falling within ilic
class of subjects ' Miuiicipal insti-
tutions in the province,' midcr
sid) ;"C. H, s.'c. !)2." . . " f ,s
not necessary for the pm'po>e nf
answering the qia-sticuis bihuo
us to determine how far, hy
reason of the existence at tlic
time of coid'ederation of tjii'
Dunkin Act [1801], the provinces
may under sid)-sec. 8 of see. 02
have the power of absolute pio-
hibition, and I desire to express nn
opinion on that point one way or
the other. It is enough to s-ty tlmi
I think it clear that under tliiit
section the pro\ince has the power
to revive the enactment in (|U('s-
tion, and that our answer to the
first two questions ought to be in
the aflirmative. With regard to
the third question, I am of o(tinion,
as incidental to the jjowcr to pro-
hibit the retail traffic in li(|uor, tlio
province must have the power, nct-
ing hoiid fiile, to define from tiiiic
to time what constitutes rctiiil
trallic. We have seen what tln'
definition was in the Act of IS"),'!
[see below, 1(5 Vict. c. 183. see..!,
sub-sec. 2, original packages con-
taining not less than five gallons].
It was substantially the .same umlcr
the Acts of 1858 and 18GG. Tills
has been changed, luid is now iv-
gulatiMl by the K. S. O. (ISS7)
c. 19-1, se('. 2, sub-sees. 2, 3, aniN.
In my opinion, the mimicipaiitii'«
nanicil in the 3rd question cannot
at present prohibit under tin' iv-
vive(l enactment such sales as mv
described in sub-sec. 4 " (Wlioii'-
sale Licenses).

Osier, .I.A. , declined to give inn
o[iinion.

Sr.AviN V. Vonv. (»k Ohim.h,
March 2, 1875, 30 V. C. (I D
p Kto, raised the question of tin'
MuniciiMil CoriKiration of Orillia
to wholly prohibit the sale <i
spirituous liipiors in shops iiiiil
places other than liotises of ]mlp|ii
entertainment, and limiting tii''

B.>f.A. ACT, s. \)'2 («.)).— MOUK OF LlCENblNU. 2lo

I to "iVf iii:v

miiubcr of tavern licenses to nine.
Anil Kielmnls, V.J., held this to
Im' within the power of the Cor|K)-
nitioii. under 82 Viet. e. .'52., and
im<lir sid)-sees. H aiul Hi of see. !)2,
■•iiiiiiiicipal institutions'' and"niut-
Icis of a merely loeal or private
nature" in the province, and that it
could not he held to he an inter-
Icrcni'f with suh-see. 2 of see. JU,
"IJeiiulation of Trade and Coiii-
nicrce," Hiehards, C.J., deliverinj;
till' judgment of the eoui't
[KiciiMrds, C.J., Morrison, and
Wilson, JJ.]: — "At the tim- "
till- passinji of the J}. X. ^ .
Ad of 1S()7, the Mnnieipal 1 i
tiitions Act of l'p[ier Canada Inen
in foree was 2i) Sc .'JO Viet. e. ol.,
jiiissi'd in Augu.st, IHGO. JJy tiie
21!>th section of that Act, ''The
couneil of every township, town,
iuid ineorporate<l village, and the
I'onunissioners of police in cities'
niijjlit respectively pass hye-laws,
iiiiu)ii};st other things: 4, 'Tor
limiting the nundier of tavern and
simp licenses respectively; hut in
nil municipality siiall tavern licence
iiitilicates he gi'anted in a propor-
tion greater than oni' for every 2')()
souls resident therein ' ; and i),
'For prohiinting the .side liy retail
of spirituous, fermented, or other
niiiimi'uctnred liquors in any inn
or olliiT house of pnhlic enttu'tain-
niinl ; and for probihiting totally
till' Mile thereof in shops ami places
iillirr than iioiises of public enter-
tiiinuifnt ; piovided the bye-law,
iH'Idic the litial passing thereof, has
lutii duly approved by the electors
of till' nnndei|Ndity in the manner
pitiviiled iiy tiiis" Act.' At the
same time there was a statute,
'21 \ 2n Viet. c. ,'J., in foree I'oui-
|nlling brewers and distillers to
take out licences to manufacture
spirits and beer, and imposing a
iluty cl' csci.se on the articles
nianut'uctured by them; and these
lulicli's vviie also subject to a duty,
on JH'iiig im|iiirted into Canada, iiy
2U \ 30 Vict. c. 0., on spirits and
Mnmg waters to the extent of 70
eiiils a gallon for proof. The

maimer in which the revenue, for Slavin e. Cour.
the .sale of ardent liquors by retail or Ouilua.
and in taverns, was rais«'d was by
enacting that any person who
should sell ardent spii'its without a
license should sull'er a penalty ;
then the mode of oittaining the
licen.se v as deiined, and the amount
|»ayable therefor was to he fixed,
as far as the? mimicipality was con-
cerned, by the nnmicii)al authority.
At the tinu' of the passing of the
H. N. A. Act, there prevailed in
this country n well established
inixle of licensing shops anil
taverns. Shop licenses were de-
elaied in the ISIimicipal Act of
IStiO, 2i) & ;i() Vict. c. 51., si'c.
2 19, sub-.sec. 1, to Im ' Licen.ses
for tlie retail of such liquors in
quantities not less than one quart
in shops, stores, or places other
than inns . . . or iiluces of
public entertainment.' And under
Mc. 252 of the same ^Iunicij)al
Act it was provided that ' Xo
tavern or shop liceiis*- shall Iks
necessary for selling any liquors iu
the original packages m which the
same have been received from the
inq)orteror manufacturer, provided
such pnckages contain respectively
not less than the gallons or one
dozen bottles.' The statute mider
which the two bye-hiws Nos. 53 it
5 1 were passed was 32 Viet. e. .'12,
Ontario. Sec. 40 of that Act
repealed the .sections from sec. 2iO
to 2U.'l, inclusive, of the Minneipal
Act of I'lqH'r Canada, 25> & 'M
Vict. c. 51., in nlation to the
gi'antingof lieense.s,and introdiiced
snnii.tr piuvisioMs into the statute
which was th' i jxi.ssed." |Ilis
liorilship then icad .see. (I, .>.ul>-
sees. 4, 7, S, !•, of ;i2 Vict. <•. .■i2.,
and contimied.] "It is sjiid that
tlie local legislature of the pro-
vince of Ontario hi.d no autho-
rity to pass the last statute of
;J2" Vict. e. .'$2., or at all events tlie
poll ions of the Stat lite wbiili
authori/.ed the nnniicipality to piis^
bye-laws to limit the nund)ci- of
laveiii liccns»'S to Ik- granted, and
to prohibit the granting of diop

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214

B.N.A. ACT, 8. 92 (9).— NOT COMMEllCE.

im.

(M'

,1:1

j*H1

Si,AviN V. CoKP. licousps. If the Lpjjislnturo of
OF UttiLLiA. Ontario Imd no powtT to make
thoHi' provisions in llicir stiitutf,
lind they power to re|H'iil those pro-
visions in the Act of the Piirhanient
of Ciinada ? And if tlu-y liad no
power to repeal these sections tliey
must now 1k' in force, the liiiJth
section of the IJ. X. A. Act
directing tliat ' All laws in force in
Canada . at the Union . .

shall continue ... as if the
Union had not been made ; sid)ject
. to be repealed, abolished, or
altered by the Parliament of
Canada, or by the legislature of the
res|>ective province, according to
•« the authority of the Parliament, or

of that legislature, or under this
Act.' Under the head of ' Distri-
bution of legislative powers,'
* Powers of the Parliament,' bv
sec. 1)1 of the 13. \. A. Act it is
provided that." [His Lordship read
the beij-innin^ of sec ))1 ; sub-sees.
2 ; it 3 ; and sec. U'2 ; and sub-sees.
H; J); 15; & 16; aud continued,]
" It is contended that the limiting
the inimber of licenses to Ikj
granted to taverns in a munici-
pality, or prcM'uting the i.ssuing o\l
shoj) licenses, is interfering with
the exclusive right of the legisla-
ture to pa.ss laws for the regulation
of connnerce, and that the statute
of the Ontario Iji-gislature autho-
rizing this to be done is uttrn
vires. On the other hand, it is
urged that the regulating of
taverns, the limiting the numlM'r
of liceus<'s, and the dealing with
the subject of keejiing untl re-
tailing of certain cla.ssi's of articles
nnist Iw, in the nature of police
niatter.s, |»roi)erly j)ertaining to the
powers of nnuiicipalities, and nmst
lie 'matters of a merely hx-al aud
pri\ate nature in tiie province.'
In Januaiy Teini, 1H17, in the
Supreme Court of the United
States, judguu'llts were pronounced
in what are there .stylcil the liiiense
Cases, If. S. C. U. S. (5 lIow):)(H.
The cases were argued by some of
the most di,stingui.she<l lawyers in
tlie United States, including: the

late Daniel Webster. The doc-
trine contended for by the [lartics
who opposed the laws was, lluit
though they authorized the com-
nierce in wines and s[)irits in
quantities not less than 2H gallons,
they were I'l'pugnant to the con-
stitution and laws of the United
States: (1) In thi^ power to regu-
late foi'eign eommeice. (2) In tiic
power to collect re\( nueon imports
into the .several States. (3) In
the eipial apportionment of ta.xcs
and duties in all the States. (I)
In the power to make treaties.
The general cour.se of argument
was, that no State had the right to
|)rohibit the .side of merchandise bv
wholeside or retail, authorized by ti
valiil law of Congress, or by
treaties, to be imported into its
nnu'kel.s, the retail side Ix'ing as
indispensable to the object of ini-
piirtation — namely, use and con-
sumption— as the whole.sale. 11' a
Slate can control, to the extent
of [irohibition, commerce in iiu-
))orted merchandise up to licr
boundaries, or the instant it shall
pass in bidk from the hands of
the importer, she can thereby ex-
elude foreign commerce, and deiiv
her markets to foreign nations.
The laws of Congress make no
distinction betwtvn commerce in
imported wines and spirits and other
foreign merchandise. The recog-
nition of the power of a State to
exclude the first from its nnukct
whenever public sentiment requires
it, must embrace the like power in
resiH'ct to all other descriptions of
imports whenever the jjublic senti-
ment of u State demands its exer-
<'ise. The point where regulation
ceases and prohibition begins is
the point of I'ollision and of nn-
constitutional operation of a Slate
law all'eeting foreign commerci'.
In any and all cases the power tn
deny sale iiududes the power to
|ii-oliibii importation; and the(|ne*-
lion of power' is the .same, whellur
exeiH'ised directlv bv the legislatnic
or indirectly by its agents tlnn-
uiito authorized. The ojM'ratioii ol

J 8 II

UNA. ACT, s !)2 (9).-SIMILAl{ LAWS.

215

rct'O};-

i a St lite
oiniiifn'O.
]«)W('r to
powiT to

tluM|IU"<-

wliflliii'
I'l^isliitiifi'
its tlii'n'-
rrationol

ilii' liiw oil foriMgn wiiips and sj)irits
(li'privi's iuiportfil articli'S ol' tlicir
vt'iulililc (lualily. The ri^lit t(i
sell is coniu'i'ti'il with the |iayiiii'iit
iif (liitii's. anil the rijjlit to sell must
r\tcii(l licyoiiil the iin|)()rtt>r, or it is
ail iiii>|K'rativ(' rij^lit. My treaty
witli Friiiico tlii'ir wines are ad-
iiiitted to o(iiisiiiii|itii>n in the
miiikcls ol" tlie U. S. TJK! law
iriia|ilaiii('(l (>r stints the markets of
IJU' States against tiie fair and just
(i|HTation of tliosi' laws and ti-'aties
(jf the IT. S., and renders tla-in so
far iiKiiierative. 'I'he Act hlends
t«() powers to hi> exercised at
iiiiMsure under the statute — the one
li';,'itiliiate, to l'ejj;nlate ; tlie otlier
iiiu'oustitiitioiial, to proliihit when-
ever public .sentiuu'iit of the State
(•unit's up to that point. If oiu-
State can exelude one or more
articles of iiniiort, she pays so
iiiiieh le.ss revenue than other
States that admit all, iiml in this
way the 'duties are not uniform
tlir'()iij;liout the U. S.' If a State
>liuts its markets aj^aiust one or
iiioiv articles admitted under a
reciprocal treaty with a foreign
iiaticiii by denyinj^a sale of it, then
till' U. S. cannot, in good faith,
IM'itoriu its reciprocal eugagenients.
"Tlie line of argument in favour
of the ooiistitntioiiality of the law
was after this .sort : — The State
li;is a rif^lit to provi<le for the health
of its citizens hy police regulations.
.V lawrestraiuMig an indiscriminate
trallic ill wines and spirits, designed
to protect life and health hy pro-
iiiotiiig temperance and sobriety, is
a police law. In Brown /•. Marv-
laiiil. 2.) S. ('. V. S. (12 Wheat.)
;i 1115, the court ob-ier\es, 'i'he
|Ki\ver todireel (be removal of gun-
powder is a branch of the jioliee
IMiwer, wliicli iiiKiuestionably re-
mains, and ought (o remain, with
the States,' and 'the removal or de-
I'tnictioii of infectious or unsound
articles is, undoubtedly,' a branch
"I the same power. liarbour laws,
liallast laws, &c., are of ii similar
cliaraeter. They are sustained be-
laiist'they are iiolice regidiitious of

the State.s, and are not regulations ^'i^avin y. Corp.
of foreign coniinerce, though for °*' ^''"'"*'
the pur[)os() of protecting health
and property they neces.sarily deal
with it, and such laws ai'e not in-
eom|)atible with or repugnant to
foreigr commerce. Police laws
have iu fact e\erywhei'e lieeii main-
tained against tlie suprenu! power
of the V. S., iiotwithslaiidiiig this
olnions interference 'I'he design
of the law is manil'estly to pn-vent
tippling and disorder bv promot-
ing temperance and .sobrii-ty, and
whether it be a regulation of tiiale
or police, or both, relates to alfairs
completely internal. Is this a suit-
able matter to engage legislative at-
tention? Does such trallic demaiul
restraint, or does the legislature
employ it as a pretext to regulate
foreign commerce ? Whether an
applicant for a licen.se is a suitable
person, and whether the |)ublic good
reipiires the grant to be niaile, are
facts to be ascertained which must
depend u[)on evi<lenee,aud the ipies-
tion cannot be decided witht)ut an
exercise of jndgnieii). It is dilH-
eiilt to conipreheiid how a selection
of suitable persons or suitable places
can lie made without the exercise
of .so much discretion as siu-li a
decision implies. Police laws may
be ciirried to any extent which the
public welfare demands. If the
cargo of a vessel is infected and
(hingerous, it is destroyed, and all
revenue and private interests arc
sacriliced for the [lublic .safety,
(lunpowder isretpiired to be landed
and stored in a way which sa\es
life and jiroperty from jeojiardy.
Hallast is recpiired to be deposited
wlieie it does iiii liiisehief to iiiui-
gatioii. 'i'lie |)iililieali((H by sale
or otherwise of oliseeiie books,
prints, picliiifs, \e., is an indict-
able olTeiice. Vet such hiws are
nndeiiiabiy eoii>tilutioiial, and are
maintained as public regulations on
thegi-ound llij'.t the public health,
morals, and property, demand pro-
tection. The legal [irovisiou in
tli.it behalf must he such as to
meet the emergency. If excessive

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216 13.N.A. ACT, fs. 92 (9).— AMERICAN DICTA.

t;'1

i \ ;

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9i,AviN f. Cow. iiuhilp;onoo in intoxicntiiif^ drinks
ot'OiiiLUA. i„. ,j„ ^,y•^\^ i( slioiild hi" guarded

against \>y wise and |niidi'nt ic-
};ulatioiis. If tilt' t'vil lio of such
uiiif;nitud»' as to doiiiaiul stringent
provisions rcufiiinj; to exclusion,
tlu're is no constitutional olijcction
to such Ifj^isiation. The rcason-
iiif^ I'or till' law it was contended,
estahlislied, auu)n<;st otliei's, these
propositions: — 'I'hat the trallic
in wines and spirituous lifjuors
Las, in the public judfjiucnt, as ex-
pressed tiuoufih aij;es aiid(v'iituries,
deuianded a restraint and re<;ula-
tion ; that it' the ri<;lit of ii State to
niaintain police laws is coni[)lete
and uncpialilied, there can he no
conslilulionnl conlliet with the laws
of the I'.S., as thi- |)ower is jili.-o-
liilc and .-uprenie; xit; (i/so 2.") S. ('.
r. S. (12 Wheat.), pp. oil), out),
571, as to admitted police [loWers.
The license system was adoi»ted
in Enj^land at a verT early peiiod
of iiei' history, and has c\er since
composed a part of the [lolicc sys-
tem of that kin;i;dom : Crabh's
History of the En;;. Law, 177.
License rej^nlations wci'c adojited
hy the proxincial Icfiislature of Xcw
Hampshire: Provincial Laws of
Kew Hampshire, ed. 17t!l, pp. Gl,
113.

" In givinj; judj;mcnt, Tanev,
J., stated, U; S. C. l^ S. (.j
How), p. 57.'{, that 'the validity of
cai'h of them (the law.s) has been
tlrawn intpiestion upon the ground
that it is repugnant to tluit clausi'
of the constitution of the U. S.
which oonfcr.s ui)ou Congress the
power to n'gulate connnercc with
foreign nations and among tlic
seveial .States.' And at p. 677,
' The.se laws may, indeed, dis-
ciiinagr inijiorls and diminish the
price which anient spirits would
iiliierwise bring. IJut although a
State is bound to receive and to i)er-
init the side by the importer of any
article of merchandise which Con-
gress authorises to he uuported, it
is not bound to furnish a market
for it, nor to abstain from the pas-
Nige of any law which it nuiv

deem necessary or advi.snble to
guard ihe health or morals of its
citizens, although such law mav
discourage importation, or diiiiiiii>ii
the profits of the iin[)orter,or lessen
the revenue of the general (jo\itii
meiit. And if any State deems ihi.
retail and internal trallic in arileni
spirits injurious to its citizens, and
calculated to product' idleness, vice,
or debauchery, I .see nothing in the
constitution of the U. S. to i)revciii
it regulating and restraining the
tratlii', or from prohibiting it iil-
togcther, if it thinks [)i()|«'n
^McLean, J., in his judgment, oi>
ser\es, at p. 589, ' A license to
sell an article, foreign or dou:csti(\
as a merchant, or innk'"'|v, ;, (U'
victualler, is a matter '.•[ police nml
of re\cnue within liic jiower ri' n
State. It is strictly an inteiiiiil iv-
gnlation, and cainiot come in con-
lliet, .saving the rights of the im-
porter to sell, with any [lowci
[losscssed by Congress.' And m
p. 5!K): 'The license .system, a^
adopted in all the Stjites, restrain.'*
[M'rsons from selling by retail who
have not taken a license; and a
license to retail spirits is griuili'il
by the court, or some other bodv,
at itsili.scretion and on certain con-
ditions. The applicant to obtain a
lici'usc nuist 1k' recommended Uv a
majority of the select men of tln'
town, as 11 pc'iion of good moral
character. . . . Tlic necessity of n
licen.se presup[)oses a [irohihilion
of the right to sell to those whu
have no licen.se. For if a .State
may retpiirea license tosell, it niav,
in tlic I'xercise of a proju'r disciv-
tion, limit the number of sncli
licen.ses as the public good nia)
.seem to reipiire,' And at p. .Vll,
'A discretion on this subject inii>i
be exerci.sed .sonu'where, and it laii
lie exercised nowhere but under tlu
State authority. The State niiiv
regulate the side of foreign spiriis
and such regulation is valid, tliun>!li
it reduces the (plant ity of spiiib
consumed.' And at [). 5!)2, 'In
all matters of government, ami i'."-
jH'cially of iM)licc. a wide dii^civtioii

B.N.A. ACT, 8. 92 (9).— HtOVlNC'ES WEST JUDGES. 217

is necessary. It is not susccptihle

(,[ an cxjiL-t iJtnitjitioii, but uiiist Im

(Xciei.si'd uiuUt the clmiif^iiin I'xi

I'ciieii'S of socii'ty. In tin- jtioj^rcss

of population, oi" wcaltli, andi-ivili-

siilidM, new and vicious iii<lulf:jenecs

spiinj^ up, which rcciuiri! restraints

ihiil can only be inipos<'([ by tlu!

Iii'islalive power. . . . And it' the

toriif;n article 1k' injurious lo tin-

JHiilth or morals of the conununity,

11 .Slate may, in the exercise of that

I'lval and con.servative police power

wliicli lies at the foundation of its

prosperity, prohibit the sale of it.'

No one doubts this in relation to

iiilVeted gowls or licentious puhli-

calions. Such n regidation must

Ik' made in^ood faitli,and have for

its sole object the preservation of

till' iicalth or morals of society. If

a loreijjn spirit should be imported

lontaining deleterious ingredients,

fatal to the henltli of those who ust;

it, its sale may be prohibited.

"C'aron, J., at p. Gil, say.s : — ' 1
admit as inevitable, that if the
State has 'he power of restraint
liy licenses to any extent, she has
the discretionary power to judge of
its limit, and may go to the length
of priihiliiting sales altogether, if
siK'li be her policy ; and if this
court cannot interfere in the case
iH't'ore us, so neither could we in-
terfere in the extreme case of entire
I'xclusiou, except to protect imiwrts
belonging to foreign commerce as
already tietined.'

" Woodbuiy, J., said, at p. 621 :
— ' The leading object of the license
is to insure the ,sjUc of spirits in
iiuautities not likely to encourage
inteniiKTauce, and at places and
times, and by persons, conducive to
lliat end.' And at p. G2 I : ' This
local, territorial, and detailed legis-
lation should vaiy in difl'ert'nt
States, and is better uuderstooil l)y
each than l)y the general govern-
latnt; and hence, us the colonies
miller an empire usually attend to
all such local legislation within their
limits, leaving only general outlines
ami rules to the patvnt country at
home, as towns, cities, uud corpora-

tions do it through l)ye-laws for Slavin v. Com-.

them.selves after the State legis- ofOkii.ua.

lature lays down genei'al prin-

ciph's, und as the war aiul luivy

departments, and cttm-ts of justic(!

make detailed rules under general

laws; so here the States, not con-

ilieting with any uniform general

regulations by Congress as to for-
eign commerce, nnist for conveni-
ence, if not necessity, from the very

nature of the power, not l)c debarred

fi'om any h'gislation of a local and

detailed character on matters con-

neeti'd with that commerce omitted

by Congress.'

"In dutnding that these laws were

constitutiomd, several of the judges

referred to the doctrine now well

established in the U. S., that the

powi'is which were not deh'gatedby

the State governments to that of

the V. S. remained with theSt4ites,

and contended that the power to

license and regidate the sale of

winis and spirituous liquors was

one which was not stuTciulered in

giving to Congress the right to

regulate commerce. Here, how-
ever, our local legi.shitin'e, it is con-
tended, only possesses the powers
exiiiessly granted to it, the more
extended powers remaining with
the Dominion legislature. Admit-
ting this to l)e so for the purpose
of the present discussion, it by no
inejuis follows that the local legis-
lature does not possess the power
in this matter which would be
necessary to sustain the two bye-
luws referred to.

" As far as the province of Upp<'r
Camida was concerned, the d(!le-
gates who represented tlie views of
that section of the united province
of Canada, well knew what the
inmiieiiial institutions of Up|)er
Canada were, and .some one of
them had probably inti'odnced and
carried through the legislature,
only a short time iM'i'ore, the Act
passed on 15lh August 180(5, en-
tit uled 'An Act respecting the
Municipal In.stitutions of Upiwr
Camula,' 29 and .30 Vict. c. Til.
T'hc) knew that iu the sections of

V \i

r I

l:T^

I (

•!li

I I 1 i

:.'.■!

B . , : !

218 B.N.A. ACT, .s U2 (9).— UNION AGREEMENT.

: ['f ; ^

Si.AviN I-. CoBP. tliiit Act alrondv rcfcrrfd to, tin-

ot'OuiLUA. power was <;ranlc(l to flu iiiici-

paliticM ill Uppir Canada, under
(•ert4iiii eii'ciunstances, to limit the
iiiinilier oi' taverns, and to pr(diil)it
the licenses ol' sliops for the sale
ol" spirliMouH lifpiors in the seveial
nnuiieipalities. When, tlien, this
Imperial Act uses the verv words oi'
the title of this Hill, in };i\ in;; as one
of the class of sulijeds on wliieh
the provincial legislature may pass
laws, namely, ' umnicipal institu-
tions in the province,' can there lie
iiuy reaKoiial)le doulit that it was
cxiM'cted ami intended that the
'municipal institutions' which
were to he coiiHtitutcd under that
authority would jiossess the same
power as those which were then
in existence, un<ler the same iiam(>
in the province? I should think
not. I think we may pro[rerly
hohl that the powers now con-
tPuded for were intended to he,
and were, vested in the provincial
legislature by these very words.
Their being followeil by 'Shoji,
stdoou, tavern, auctioiu'cr, and <»thcr
lieense.s, in order to the raising of
a rcfvniie for jirovincial, local, or
municipal purposes' — (h)es not, iu
our opiuioi), .show it was the inten-
tion to limit the exercise of the
jHiwcrs which municipal institutions
ought to have, and which tluy lm<l
had, of limiting the .sale by retail
in inns or by prohibiting the sde
thereof in shoj).", but rather to re-
move all doubts as to their right to
rai.se revenue either for pro\ incial,
l«K'al, or municipal purposes l)y the
the Lssuing of these and other licen-
Ke.s. The B. N. A. Act of 1807
nui.st have been passed on a confer-
ence with the deh'gates from the
«lifferent provinces, and the various
provisions as to the powers and
subjects of legislation by the Do-
minion and local parliaments nni.st
have been suggested by the.s«- dele-
gates. Their suggestions inu.st ha\e
Im'cu based on |N-r'sonal knowledge
of the various modes in which h-gis-
lation on those subjects had In-en
hoil iu the various provinces before

the confederation, and if it had Imch
intended that similar Icgisliiiion
should not ha\e been continued jis
before by the xarious i>ro\ incrs,
there is no doubt that such inti'ii-
tion woidd have been ex|)resscd in
the Act.

" And when woids and expns-
sions are imported into that .Vet
which ha\e been in eommou nse in
legislating for these' provinco. \w
nnisl continiH' interpreting these
Words in tlu^ same manner and to
mean the .sanu* thing as we decidt'd
they ua'ant in the statutes passed
i)y our own legislatures. It would
create great dilliculties and inciiii-
venience if we did not act on this
rule.

" VwdvT the 25l*nd section of the
Afunicipal Act of 1HG(5, it was de-
(dared that no tavern or .shop liceiisc
should Ik' necessary for s»dliiig
li([uors in the original packages in
which the siune have bei-n received
from the importer or mainifaeturer,
provided such jMickages contain
respectividy not h'ss than five giil-
lons, or one dozen bottles. Tiic
shop, .saliMtn, and tavern licenses, I
think we may assinue, were for the
puriHtse of allowing the parlies to
sell by retail, and the prohihiloiy
])ower, under the Municipal Act ef
IH(K), was to prohibit the sale !))•
retail— .sec. 24<.>, No. 9.

'* The reference to selling spirit-
uous licpior by retail was made
at a very early period, in re-
lation to the sale of .spiritiiDiis
liipiors in Canada. By the Im-
perial statute, 11 Geo. III. e. SR,
.sec. o, a duty of t'l Ki.v. ior tinv
license to any person i'or keeping; a
house or any other [dace of piililie
entertainment, or for the retailing'
of wine, brandy, lum, or any otlier
spirituous liipiors, was imposed.
And by the provincial .st4itule of
U. C, ;{7 (Jeo. III.c. 12., .s.r. 1,
e\ery shopkeeper who sidls wine,
brandy, rum, or other s[)irilii<iiis
liipiors in le-s (|uaiility, at any oni'
time, than three gallons, shall lie
posses.sed of a licen.se for that par-
pose. The legisluture of the pro-

B.N.A. ACT, s. 1)2 (l)).— I'HEVIOUS LAWS.

1^19

viiiic of Cannda, up to tlio time of
ilii' wmlVdiTiitioii t>t' till' proviiii-cs,
vriiis to liiivc liniitt'd tin- <rnintiii<{
111' lici'iiM's tor tilt' Nile of wines 1111(1
.|iirituoiis li(|U()r.s to sliopkc('|)crs,
;,ii(l til tuvfi'ii aiiil saloon kccpiTS,
mill tliL' liki", who sold \>y retail,
ami iliii iii>t make it iieeessai'v for
ilie imiiorler or niaiiiifaeturer to
lake nut a license to sell wlien sell-
in.; ii_v wliolesde, whieli, at iifst,
was liniiti'd to ipiantities not less
t!iaii three iralloiis, and latterly to
IJM' ffnllons. 'I'lie lej^islation as to
liii' excise on the niannfaetiire of
lii|uiiis and the lieensine; of those
I iipi;,'i'(l in that business, seeniw to
have lii'eii kept separate from tlit;
li'i;islation as to nrantin<^ licenses
III shopkeepers and tavern kt'ppers.
W'v think, looking at the lej^islatioii
liv the province of Oiitariu as ap-
|iiii'alili' to the fiivinfjf the jiowers of
liiiiitiiif; the nnndier of ta\('riis in
a iiiMiiicipality, or prohibit in<; the
silf liy retail of spirituous liipiors
liy shupkecpers in such niiniiei-
I'lility, tiiat this is a power which
may lie properly ex«'rcised by the
liical h'f^islatiire as a matter chiefly
111' piilice, of a merely local and [iri-
vaif iiiLiiire, when it does not inter-
t'lr wiili the sde of imported or
iiiaiiiit'iictiu-ed liipiors otherwisethaii
US liy retail.

" We further think that the [lower
may Ik- exercisnl, lookin;? at the
nature of the lej^islation on the sub-
ject, under the power <^iveu to the
liicjil iejiislature to le^ishito exclu-
|sivi>ly in relation to aiuiiicipal iusti-
[tutions, and that the |K)wer toh'gis-
Ittte as to shop and other licenses,
in order to the raising of a revenue,
does not limit such power, but was
so jilaced there rather with n view
of rcniovinj; all doidtts as to the
riijiit of the provincial le<iishiture to
iraisv a rvrvniic Inj those means:''
Ulfis Lonlship then iiunted Mar-
plmll. ('..!., ill M'l'ulloch v. Stale
|ol Maryhmd, 17 S. V. V S. (I
|J\'hi'at.),p|,. 107, KK), Pil, and in
IBn.wiw.Sialeof Maryland, 25 S. V.
II'. S. (12 Wheat.) p. l.'U), ami .lohn-
"t)n» •'•, in Gibbous c. Ugdeu, 22

S. C. U. S. (S) Wheat.), pp. 221), ^''^vin v. CoKr.
2;i(», and continued.] " Wv think o*- <>""■"'*•
the jiarty who apjily to (juasli
these bye-laws have failed to shew
that the lej;islature of the province
of Ontario had not a ri<^ht to pass
the statute un<h'r which they were
framed. On the contrary, we think
they ha\c the power conferred ou
lliem to p.'iss such bye-laws by the
reasonable and proper coustructiou
of the words of the H. N. A. Act
of 1807. We think the ecmrse of
leirislation in Canada previous to
the passin<{ of that Act shews that
the j^ranting of license's to sell
wines and ardent spirits hy retail
was a matter [iroperly entrusted to
the utunici[)al institutions in this
province, and that the power to
prohibit such .sale umler eeilaiii
circumstances was also proper to
be entrusted to those institutions;
that the (lower to Icj^ishile for
such institutions necessarily carries
with it the rij^ht to conft-r on sutdi
institutions all such powers, par-
ticidarly *if police, as could be most
conveniently and with advantafjc to
tlu' couununity exercised liy them,
and when such naitters may Im- said
to be of a merely local and privati'
uature in the iirovince, they cannot
be .said to interfere with the ri<;hts
po.s.ses.setl by the Dominion Parlia-
ment. We think the right to license
bn'wer.s and distillers, and to im-
pose duties of e.xciseon their manu-
factures, i.s one that has never Imcu
conferred ou municipalities in this
country, and would not i)roperly
come within the [lower usually con-
ferred on municijial corporations.
'I'liey have always been looked upon
more as matters of a iimisi-national
character than of the character pt^r-
t^iining to municipalities. 'I'la; im-
position of taxes on winesaiid spirits
imported from abroad has also lieen
treated and considered in the .sjime
way ; and in all our statutes of a
prohibitory character |)assed iM'fore
the confederation, the right of the
importer and manufacturer to k«'ep
and sell winesand spirituous liqiuu's
by wholesale has been recogiiiiied

•r J

li I \

\ r ('

i '

,■.. .1

lit']

f rp

220 U.N. A, ACT, B. 02 (y).— IMPERIAL LOCAL LICENSES.

ili

( 1: '^

SiAviit r. CoHP. and pr^Hcrvftl. Tin- ri^lits of tho
or Ok)i-ua. innniif'.icliir'Ts iiml iin|)(»rt(rs an-
not inli'rIVi'cd willi inipiopcily liy
a ni;irii('i|i)ilily liiiiiliii}; tlic iiiini-
licr of lioiisrs to lie licciistMl, orfor-
hidtliii;; slutps to lie licensed williin
its turriloriul litiiits. 'I'lii.s may lie
dovie liy tlie niunieipalities, and ini-
[)ortersan(l niatnd'aetnrers still lia\e
the r'lfjlit to keej) and sell liy whole-
sale the arlieles of eoinineree which
theyha\c inipoited or made." His
Lordship then said the coin't eon-
fiidcred the twohyc-laws wiTc {iood,
and conclnded hy savin;;: '*'rhon;,di
the AL'tsof 1H73 and of 1H(;!) are
repealed by tht- statute of 1874,
yet hy that Act, the Itye-hiws then
in force were continued nntil re-
jx'alcd, or olJier provisions made as
to tlie matters under that Act."
I.uiioii The Canadian Act, .'}() ^Nlav IHl!),

TiiAFKu Acts, 12 Vict. c. HI.,, intitnh'd "An Act
to proviih', hy one general law, for
tho erection of municipal corjioia-
tions, and the estaJ.'lislnnent of regu-
lations of police in and for thi'
several counties, cities, towns, town-
.ships, and villages in Upper Can-
ada, liy .see. 31 each municipality,
&Q., may uuike bye-laws for the
following : — Sub-sec. xiv. : " For
regulating inns, taverns, ale houses,
victualling houses, ordinaries, anil
all bouses where fruit, oysters,
clams, victuals, or sjarituous litpiors,
or any otlier manufaetered bever-
age, may be sold, to be eaten or
(hank therein, and all other places
for the recejition and enterlainnient
of the public within the jurisdiction
of the corporation of such township,
and to limit the number of them j
and in all cases where tliere exists
no other provision by law for the
licensing of such hou.scs, to provide
for the pntper licensing of the same,
at such rates as to t!ie corporation of
such township may seem expedient ;
the proceeds of such licen.se, in cases
not otherwise apjiropriated by law,
to form part of the public funds of
such township, and to Ih> disposetl
of as the sjiiil corporation may con-
sider lulvisuble.

The preamble of 13 & 14 Viet.

e. 05., 10 August 1850, an Ad to
amend the laws relative to taMin
licences in I'ppei' Catiadn, was;
" Whereas it is c.xpediiiit to Vest in
municipal authorities in rpiKt
Ciiiiiida the power of iixiii',' |||,.
innnbcr of tavj-rns, beer-shops, (md
other iioiiscs and places of piililji'
cnlertiiinment where wines and
spirituous or i'erniented li(piiir> tnv
sold, or of pi'ohibiling such lii.iiv.
or places in the .sai<l muniei|iiilitii>
respectively, and of prescriliinij th,.
conditions on which licenses tokirij
the .same shall be obtained aiid iicjii,
antl tlu^ duty which shall lie paiij
thereon over and above that impuMil
on persons keeping such Iuhim.!,
ami retailing wiues and spiritiams
liquors therein by the (linpiiiul)
Act 14 Geo. 3. e. 88., an Act tu
establish a fund towards further dt •
fraying thi- charges of the ailiiiini-
st ration of justice and the siippurt
of tho civil government within tin
province of (Quebec : He it llienliM.
ciuicted by the Queen's ^Insi Kx-
cellent Majesty, &<•. 'I'li.it mi
much of the Act of Tapper Caiiaila
of T)',) (ieo. .'{. c. 2., an Act toalltr
the liws now in force for graiilin;;
licen.ses to iinikeepers, and to p\r
to the justii'cof the peace in gi'iiinil
quarter session authority to re;.;iiliiif
the duties hereafter to be paid uu
such licenses; or of the Act 0 Will.
4. c. t., an Act to repeal certain por-
tions of 30 Geo. 3. c. 3., inlit liciian
Act to itiiiend the manner ol' lin ii-
ing i)ublic hou.ses and lor tlie inmv
ea.sy convicting of p'^rsons selling
spirituous liquors without a liiviisc,
&c. ; or of the Act 3 Viet. c. 20.,
an Act for further regulaliiii: lii'
manner of granting licenses t<i Inii
keepers and to the kct^pers el' ali
and beer hou.ses within thi.s pm-
vince; or of the 3 Vict. c. 21., an
Act to contiiHieand make ]ier|H'tii;il
the Ai't 50 (leo. 3. c. 2., an Act i
alter the laws now in fort'el'or j;nii:!-
ing licen.ses to Innkeepers, ami i"
give to tlie jnstii'cs of the pcaiiiii
geniTul quarter st'ssion, Ai'., iiiitLo-
rity to regulate the duties t(i I*
paid ou such liceuses ; or any utini

H X.A. ACT, s. 02 (0).— DOrniiE LTCENSES.

221

Art (iiliiwiii t'orrciii fiiiMTCiinitdii

;i, vr-l.* ill miy jll>li('(' 111' till' prllff

ilii> ixtwcr «)l' uniiitiii}; rcilincatrs
ciitilliii.L' tli<' party to wlmin they
jiiv "•iiiIiIimI to oliliiill licenses to
kirii Inns or Houses of PiiMie lOii-
tirliiiniiii'iit.oror tiinkiiiji I'liles iind
ivMiiatiims I'or tho eoniliict of siieli
liinktrpei-s, or of repeiiliii^' siieli
lilies ainl refjiilations, or of lixiii^
ilic (liitv 1)1' Slim wliicli any person
i, n'i|iiiii'il to pay for Hiicli lieensc
nr Ix'tore lie can obtain the saiiie,
(ir of re|iealin<; or alteriii<; any duly
(ir Mini so (Ixed or as may lit! incoii-
Msiciit witli any provision of tliis
Art, wliieli is to 1k> actod on liefoiv
till' 1 -I III' March next, — shall he and
i* licrclpy repealed, except the 7th
mill Sill sections of tho provincial
Alt tliinlly above citcil. Section 2 :
NiitliiT the repeal of the said
Alts nor anythiiif; in this Act coii-
liiiiii'il slmll lie constriu'd to repeal
or affect any duty or sum imyahle
on licenses to vend wine, hrandy,
mill s|iiiitiioiis liquors hy retail to he
;;i;iiiteil or issiieil ill Upper Canada
to -liopkeepers or others not Ivcep-
iii;: inns or places of pulilic enter-
tiiiiiiiii'iil, or any provision for pre-
vnilin^' the veiidiii"; or imposiii<;
any |)i'iiiilty for the vcndiii}; of the
siiiiie hy such p(!rs()ns, or in any
•"lianilioiit or vesstfl, without a license,
or for the recovery and distrihution
of any such penalty. Section 4 :
Tiiiit the niiinicipality of each
tnwn^iiip or incorporatod villaj^p,
till' Town Council of each incor-
liDiatcd town, and the c'<)mn»)n
I'oiiiicil of each city of Upper
Caiiiiila, shall have power . to make
liyi'-laws, for liinitin<^ the nunilier
of inns or houses of piihlie enler-
tiiinincnt in such township, villa;;e,
town, or city for which licenses to
I'ltail spirituous liipiors to he drunk
tiii'i-ciii shall 1)0 issued, to lie in
force iiftir the last day of Fehruary
lS.")l (or for piohihitiiifj theissuiuf^
ol any such licenses, for any house
in their rosjioetive luunieipalities) ;
mill for fixing tho terms and con-
ilitions which shall be previously
complied with by any person de-

siriiifi such liceiis(>, the drsoription Lmron
of house and ncconimodation ho ' "akkic Acth.
shall have and constiintly ninintain,
and the security he shall give for
oliscrvin'; all the bye-laws of the
municipality, and the sum he shall
pay for such license over and above
the duty imposed by the Act afore-
said of the Parliament of (rreat
Mritain. For regulating all such
inns Mild houses of public entertain-
ment, and for imposing i'or any
contravention of such bye-law any
penally nv punishment which they
may lawfully impose for any con-
travention of other bye-luws. For
similar purposes with resjioet to ale
and Iw^er houses, and other houses
for the reception and ontertaiument
of tho jiublic where fernujiited or
other maniifactunMl li(piors are
sold and drunk therein. Provided
always, that nothing herein con-
tained shall be construed to relievo
any [lorson keeping a houscuif piiblie
entertainment and retailing wine anil
spirituous licpiors therein without a
license, from the penalty imposed for
such otVeiice by the Act of Parlia-
ment of Cireat Mritain aforesaid."

'I'lio Canadian Act, 1(» Vict. e.
ISI,, II .lime IHi'i.'J.entitulod" An
Act to repeal certain duties of excise
so far as regards l^pper Canada,
and to vest certain powoi'S in tho
munieipal authorities of that part
of tho provinct!"; gives many of the
old Acts on this subject which may
b(> valuable to refer to. Tho pre-
amble is : " Whereas it i.s expe-
dient to repeal all provincial Acts
and jinrts of Acts imposing duties
in Upper Canaihi on licenses to ,s<>ll
spirituous liipiors in any quantity
or in any place, or to ke(^|) bouses
of imblio entertaim ■ 'lit, or on
licenses to hawkers and pedlars, or
on koe|)ors of billiard tables, or on
auctioneers, or on the siiI,. of goods
by auction, and generally all duties
commonly called excise duties ex-
cept only those impos«'d on dis-
tillers and the spirituous liquors
distilled by them, and nil enact-
ments providing for the collection
of such duties, and to vest certain

I I

»:■':>

li'ii

;* i'

^ i

! !

! I

j:ii

|i : J.

000

:i'j:i H X A. ACT, H. 02 (9).--AnSOLT^TETiY PnEVKNTlVr;

liKjron

powcis wiili ri'piiil to tilt' iimlti IS

I iiA»Tic A( TM. ariiliMiid in llic iiiiiiiiri|>al niillin-
ritit'H III' l'|i|H-r ('iiniiilii, Ih> ii tliiri'

I ! I !'

fore cimctcd,

lliiit lh*> Ai't

of the l,(;;isliiliirc ol' l'|i|)i r ('iiiiikIii,
rWJ (let.. ;i. c. ;M., ciltilMinl An Act
lor •,'niiilin<^ lo Hi.s Mnji'sty (Inlics
on iicinscs loliawkt IS, iii'iiini'.s, iinil
|i«'lty «'li)i|tin('n, iiiiii other tiinlin^
pt'i'soMM tlii't'cin incniiont'd ; anti
liio Ai't ol' llif sail! irfiisiatuic,
U. (". oH Ch'o. ;{. c, .">., an Act to con-
tinue anil le I tea I pa It of, anil ainciiil
the Act 51$ (}eo. ;{. c. .'{■l. ; anil the
Act of the saiil legislature,}) (leo. 1.
V. S., an Act to continue an Act
eiitiliilcil nil Act to continue for
a liniiteil time an Act passed in
5H (ico. .'{., an Act to continue and
repeal part of and amend an Act
passed ')() (Jeo. .'{., an Act for •rriiiit-
in<^ to His Majesty duties on licen-
ses to hawkers, pedlars and petty
chapmen, ami other ti'adin^ persons
therein mentioned, ami toextemi the
provisions of the same; and the Act

of the said legislature, 2 \'iet.

;{.,

an Act to continue mid make per
maneiit an Act passed in .'{Will. I.
an Act to euntiniie the duty iipi

)ii

to I

lawkers and jiei

dill

ami the Act of the said le>;islalnie,
M (leo. ;{. e. ()., an Act for fjriint-
in<; to His Majesty a duty upon
liilliard tallies; and the 8tli)ind!)th
sections of the Act of the said U"'is-

latui'i

;{ Vict. c. S).,

Act ti

{lulale the timo of inakinj; returns
ami payment of i-olleclors, A;c. ;
and the lOth section (<f the Act of
the leifislature, .'{ Vict. c. 20., an
Act for further re<;iilatin;; the
iiiauner of granting licenses to iiiii-
koepers and keepers of ale niul iM'cr
hou.ses within this province ; and
the Act .')H (leo. .'}. c. ii., an Act for
granting to I[is ISIajcsty a duty on
lici'iiM's to auctioneers, ami on
goiMis, wares, and mcreluindise sold
by auction ; and the Act of 3 Vict,
c. 2.'5., re the siinie ; and the 2nd
section of 3 Vict. c. 22., an Act to
make ]ierpetual (5 V.'ill. 1., an Act
to repeal and aineml certain parts of
3() (leo. ,'{, c. 3., an Act to amend an
Act lor rcguLuiug the uiauucr of

licensing pnMie houses, and |'<ir
more ea>\ couxiction of persipu.
selling spirituous liipiors witlioui
license, and also for regiilntin;; iii,,
duty lo lie lexied on lieeii^i'^ id
sliopkeeiicrs ; and the Act ol ilic
|iro\inee, 13 it II \'iet. e, 7. ill!
Alt to amend the law reliiiiM- td
hawkers and pedlars; and so laiirli
of the Act of the province, I i\, ')
Vict. c. 21., an Act to iiinke ( pi'iain
allcriitions in the laws rehiliM' in
the duly upon stiles of pi'ii|iertv liv
auction as imposes or eontimies nnv
duly on nuelioneers or on gixnl'-,
wares or merchandise sold li\ niii'.
tiori in r|i|M'r Canada; — sliall Ih'
repealed, with all other Acts iir|ijiriN
of Acts, whether of the I'arliiiiiiini
of this pro\ ince or of the Legislniiuv
of Upper Canada, iinposiiig or cun-
tinning any duty in I'pper Camilla
on aiictioiieers or on the sale nl
goods and wares or mereliiiinli-i'
liy auction, or on hawkers, trii(l(i\
or jM'tly ciiapinen, or on keeper* n!
liilliard tallies, or on persons scllin;;
wine, lirandy or spirituous li(|ii()i>,
ale or lieer, liy retail in any plmr,
or on keepers of houses of pulilii'
entertainment, or reipiiring tlmi
any person shall take out any lieciiM'
in order to eiialile him to lawfully
sell good.s, wari's, or nu'rehandiM' liy
auction, or to act as a hawker m
pedlar, trader or petty chapiiiiui, or
to keep any billiard table for hire or
othei'wisi', or to sell wine, liiiiiuly
or spirituous liipiors, ale or iH'cr,
by retail, except only as regiinN
any jienalty already inciirreil. Pro-
vided that nothing herein eontiiiiiiil
Bhall affect any duty or sum [iiiv-
abin under any liye-law of iiiiy
uiunicipality in t^iiper Cmiaili
niado under authority of the Art ol
I'arliainent of the province, 13 \ H
Vict. c. (>')., or in any way to im-
pair the effect of any bye-law iiimli'
under the authority of the saiilAii.
or to repeal, alter, or idfect any Ail
or law concerning distilleries or
di.stillers, or any iluties imiioscil
upon spirituous liquors distilleil or
made by tliein.
Section 3 enacted that muui-

UX.A. ACT, J.. fC (9) — ISSURH OF LK^KVSES.

22.T

ciimlitM"* niiplit iiiMki- l>yi'-lii\\> for
(.iili-sci' I) it'jriiliiliii;; iiiiil piMTii
jii,' iiiiciioiiccrs, i^c. ; siili-«i'f. 2,
I'di' ri';r'i'"li"rt '""' jioMTiiiii;; nil
,|iii|iki'f|»'i's, >l()rfk('('|M'rs, niiil
i,ili(.i> M'lliiifj wine, lii'iimlv or
iillii'i' '•|iii'ituoiiH li(|ii()is, file III'
Imti, liv rcttiil, in |iliifi's (itlirr iliiiii
lidii-c^ iir pliK'i's (if imlilic ciilcr-
i;iiiiim'iil,aii(l l'(irn'(iiiii'iii;^iiiiv sik'Ii
iii'iMiM to ttikc nut II lirciist' from
Jim iiiiiiiii'i|iiil olliccr to ln' (loi;;-
iiiilrd in '-ncli live-law, iM-forc it
.|mll Ih' liiwfnl for liiiii to sell iiny
wine, iiniiiilv or otlit'r sjiiritnons
lii|ii(ir, lilt' or lit'cr, iis aforcsniii,
wiiliia tlic iniinii'i|iaiity, anil for
ri\in)rllu' sum wliifli sliall In- pay-
;ili|i' fill' rai'li siii'ii liccnsi', anil liic
!iiiii> iliiriii}{ wliicli it sliall l>o in
lin'i'i', mill for liinitini; tiu- imnilu'r
iif |H'i'Mins to wiu>iii,an(l tiic Iioiim's
01' pliu'i's for wliicli siicii licenses
>luill Ik' frriinled witliin tlie lunni-
ii|ijilit_v ; or for preventin;^ aliso-
liiti'k till' Hale of wine or liramly
111' nllier spiritiutns liipiors, ale or
Imit, or any of tlieiii, liy retail
williiii the mnnieipality ; ami for
iiinkiiii; siieh further enaetinents
II- iiiiiy lie <!(>emeil necessary for
pviii;,' full effect to any such liye-
l;i\v, mill for imposini; [lenalties for

ill iitraxcntioii tliereof. Pro-

\iili'il always that tlieselliiifj of any
wiiir, liramly or other spiritmuis
li|iiiii'>, ale or lieer, in the ori^^inal
]iiii'kiif;cs in which tlu' sune were
ivirivcil from the importer or nianu-
fin'tiii'cr, ami not containinfi re-
«|H't'tively less than live i;i(llons or
oiii'tliizcn liottles, shall not lie lu'lil
to he selling; Ity retail within the
iiii'iiiiiiij,' of the Act. Sul»-see. .'}
pnividi'il for refiulatiny the keepiiif^
liiiliiinl tallies. Sec. 1 containeil
till' proviso that no liye-laws
«iiiili shall 1m' intemled aliso-
liiti'ly til prevent the .sale of spirit-
iiiiiis ii(|iiors, Ac., within any niniii-
lipiilily, or at any jilace other than
II lioiise of pulilie entertainment,
<ir sluiiilil nHjuire jiayment of a
peatcr sum than ,£lt) for lictMisos,
>liuul(l Im" valid unless previously ap-
|ii'ovi'il liy n tunjority of the quali-

eleetors of the

(ii'd municipal
miiiiicipiilit\ ,

liy Ihc I'mperial Act 1 t Oeo. .'{.
c. HH., a tax was plnced on all
wine, rum, and luanily, imperted
into the pro\in<'e of C^ueliee, to
otiililish a fimil towiii'ds defray-
inil the chiir;rcs of the iidminis-
tiatinii (if justice iiml the civil
;;o\ciumcnt of the province; and
liy sec. .'i there was to Ik* paid to
His Miijesty's l{eceiver-(ieneral of
the said province a duty of .L'l l(i.v,
for every licen.sc" that shall Im
f^ranted hy the pivernor, Siv., to
any per.son or ])er.sons for keeping
a house or any other placu of
piililie ent(>i'taimnent, or for the rv-
tn'\V\\\<i wine, liramly, mm, or any
other spirituous liipiors within tho
said province, and any person keep-
iiifi; any such lioiist; or place of en-
tertainment, or retailing any such
liipioi's without such license, should
t'oifcit i'lO. Then we have the
guelicc Act, :{r)(}eo. 3. e. K. (1705),
referred to in 1.'} & 14 Vict,
c. 27. (IH'iO), which was entituled
'•An Act for the more ellectual
Siipi'cssion of Intempei'ance." 'J'ho
Act of ;{.') (leo. ;j. c. H. was entituled
"An Act for <irantin<; to His Ma-
jesty duties on licenses to hawkers,
pcdlar.s, and petty eha])men, and for
rcdrulatini; their trade; and for
^rantini; additional duties on li-
ceii.ses to persons for keepin<^
hou.ses of |)ulilic entertainnient or
for retjiilinj; wine, hrandy, rum, or
other spirituous li(piors." It enacted
that there should he paid liy every
jierson or persons who .shall take
out a license for keepin<i a hou.se or
any other place of puhlic entertain-
ment, or for retailinjj wine, hrandy,
rum, or other spirituous Ii(piurs
within this province, in aless(pian-
tity than thi'ce gallons at out time,
under tlu! Imperial Act 14 (Jeo. .'{.
e. S8., the sum of t'2 over and
above the duty now payalilt^ hy him,
her, or them for such license under
the .said Act of Parliament, and such
additional sum shall Iw paid l)ofore
the delivery of such lieenso. By
sec. 3 .'.I person keeping a house of

l.nirnn
■riivrni' Acts.

Hi I

1' ,

I Ji A

^11

22t

B.N.A. ACT, s. 92 (0) — SALE TO INDIANS.

LmuoK piililic cntiTtaimni'iit iviiniiiiij; ii

THAKrif Arts jici'iist' slioiiM Ik- ii|i|irit\iil ol In
two jiistict's, mid |)ri)(lii('t> n ccitili-
ciitr I'roMi tl;r('«' liousfliolilri's dl' tin-
]Hii'i>li, oiii' of vvliicli sliiill lit' a
<'liiircli\viiril('ii, ('crlil'viii}; the appli-
i-ant was n proiii'i" |mts(iii.

It may )>c ol' value to iioti*
that, on' til)' 2!)tli Man li 1777,
17 (li'o. 3. ('. 5., then* was pass-
ed uiidiT tlic {^I'l'at seal of llii' |iro-
viii«'4' ( f (^ui'Im'c ail oriliiiaiicc
proliiiiitii)<r tJH' s('l!iii<j of stroiij^
ii(pi(a's to tli*^ Indians in the pro-
vince of {^iielicc. " Whereas many
inisi-'iiefs may In- occasioned liy tlie
practiic of sclliiij^ rniii and otlicr
• stron<^ litpiors to tlio Indians, anil

Df iiiiyin^ tlieir ciotlis and arms,
and also hy tradin<r with the sjiid
Indians, or settlin<^ amongst them
without n liceiis<', it is ordained
and eiUK'ted hy His KxcelieiK-y the
('aplai:i-(ieiieral and the (iovcrnor-
in-Chief of this pro\inee, liy and
witii the ad\ ii-e and consent of the
iie;;islative Coiineil of the sjime,
that from ami after the p.ililii'atioii
of tills oi'dinaiiee, no person or
person>* wliat«-oe', ("• shall sell, dis-
'I'ihute, or otherwise dispose of, to
any Indian or Indians wiliiin this
provinc*', or to any <ither iK'rscn or
persons for thi'ir use, any nun or
strong; liipiors of what kind or
(piality soever, or shall knowin^dy
or willin;;ly siilfer the same in any
manner to come to the hands of
any Indian or Indians without a

s|K'cial lidMise in writing for tlmt
purpose, llr><t hail and uliiiiinnj
from the (Jovernor, I.ii'Mieiiiint.
CioM-rnor, or ('ommander-iii'.'liiif
of this |iro\inec for tlu^ time liein",
or from His Majesty's a;,'eiits „i.
siiperinti'iiii-.-nts for Indian nlfaii'^,
or from His Majesty's coininiiiKl.
ants of the dilTercnt forts in tli',
Id'ovince, or from sncli other ihtmm
or persons as t!ie (.Jovernor, l,ii-i.
tenant -dovernor, or ('ominiiniii'i'.
in-Chief of the province li.r il.^
time iH'iiiL^ shall anthori/e for tli:it
piirpos*'." The |ienalty for lii>t
olTeiice was fi), and iniprisdiiiiunt
notexceediiii; one month ; forsi'i'nii I
ofreiice i'lO, and imprisoninen; iim
i'xi'ei'iliiif^ two months, '' If n pii'.
son so olTendin<^ Ih' a piilillran,
innkit'iM'r, or retailer of stnuii;
liipiors, he shall over and alMne lliu
said penalty and imprisoniiieiit In-
reiiderei' iiieapalile, from the ilav
of his conviction, of selling; iiml
retailing; liipiors to any per-^m
whatsoever, iiotwithstandiiif; iiiiy
license that he may have Imil I'm'
that purpose, which iicciisi' is Iu'it-
iiy decliircd to lie mill or void fnnii
the day of his conxiction." Svi'
1 liois (III Das Canada, 12.

Ill (i\iii)Ni:u ». I'viut, ■.') A|iiil
iSHl, U N. S. L. |{. (-J lliiss. iiiul
Oel.), 22.'), Smith, .1. : " Kxcepl in
the city of Halifax, there are fiw,
if any, cities in the provinces whnv
sueli liipior licenses ure jj;mut(tl."

(10.) .^ocal works and iin(lertivkiuu:s other than such
n.s arc of the following classes : —

(a.) Linos of sioam or other ships, milways,
canals, tele«^mphs, and othe woiks
and un(h'rtakini?s conneotini< the pro-
vince with any other or others of tlic
l)r,)vin('e, or ext'^'ivdini:? 1)eyoii(l tin-
limits of the province.'

' See Note 1, [>. 22 j.

RN.A. ACT, s. 92(10).— PUOVINCIAL RAILWAY. 225

in sucli

ilwiiys,

\v()rk»

he ])ni-

(.r tlif

1(1 tilt

(b.) Lines of stcaiu ships l)etween tho pro-
vince and any British or foreign
country.

{c.) Such Avorks as, altliougli wholly situate
within the province, are he fore or after
their execution declared hy the Par-
liament of Ctniada to he for the general
advantage of Cttnailo, or for the advan-
tage of two or nifM't' of the [)roviuces.'

I Dow i: Hi.\<K. Ill S. ('. N. IJ.

■:■! hlMuuiy lH7a, II S. t'.

N ». (I will's.), ;<(K). Hilcliir.

CI, Alli'ii aiul W«-I<lnii, .1.1.

ilVlicr, .1., tlisscnliii;;), Iidd, lol-

l>i»iii<; Itc};. r. ('Iiaiuilfi', 1 Han-

i,,iv, .•»4K (.lum- 11, IHGS), S. C.

.\; H., Hit.-hif, CI.), that tlic

N'lw niiiii>*\vi(k Aft, 3.3 Vk-i. <•.

17., imlluiri/.iiif; tlu' is.-siu' ol" tlc-

Uiiiiiii'S to tlif lloiiltoii firaiicli

llailway to aid in tlio const i'n<-t ion

m| II milway tVoni Honlton, in tlit-

Mali' (if Maine, to thf New Hrnn.s-

»iik iiik! Canada railway in New

ilniii-wii'k, wa.s iM'Vontl the [M)werM

n! iIh liical legiNlatni'e nnder tlie

li X. A. Act. Tliis wa.s rexersetl

111 !'ii\y Council [nee fnlow].

On iJie loth .lune 1H07, iN'foie

ili'B X.A .Aet came intooiM'iation,

ill' iliiii legislatnn- ol' New iirnns-

«iik iMi'sed an Act, I y sec. (5 of

»lm'li it was |ii<iviiled that tlie miv\

it S."),()(K) |it-f mile, not exei-edinf.^

I. llir whole S17,.')»K), should l)e

^niiitctl I'lir the construction ol' a

r.iiliviiy til tile lK>un<lary line ol' the

Siiiic 111 Maine IVoni the ruilwny

l'iiiliii|,' I'rtjiu St. Andrews to

W HKlMiick, to such persons ir

'««lv nir|Minite as shall construct

'I" Slid road, &v. On 17 June

'Willicr Act was |)a>s«>d constitu

; ii;; ;i JHnly i'iir|>onit<- under naiin

"I iIk Iliiulton Branch Hi'ilwa\

•"iiil'iuiy, and they were aiitho-

li'iil lo niiike (his ridlway, ruiuiiu};

timu the iulerHcetinh ol' the \ViM)d

I'tkiiiic with th. New Urun^wiik

Hamicla niilway, iM'inj; n |ilace

called DeU'ck, to the Inanidary
line of the State of Maine and
the province of New Hrnns-
wick. The preainlile to the Act,
;{;{ Vicl. c. 17., in ipiestion. set
out that the town of Uoullon,
Slate of Maine, had otTered the
Iloulton Draneh Uailway Cuni-
pariy a l>onus of S.S0,(KM), upon
condition that the sikiil coin|>aiiy
siionld construct and eipiip a rail-
way f'om the town of Honlton to
the line of the New Bi'unswick
and Canatia railway at DeU-ek
heforc 1 .Ian. 1S72. That the
Houltun Branch Uailway Coin-
|iany were willin({ to undertake the
construction of :<ueli connecting
line u|K>n condition that the town
of St. Stephen, in the pi-oviuce of
New Brunswick, hhonld ^iw to the
Honlton Branch Uailway a Iniiius
of Sl,3,(KX), and tiiat the iiihaliitants
of that |K)rtion of the town of St.
Slephen called Jic Tower district
were williug to ^ive the -lid sum,
and that such siiiu shoiil' ' raisi-d
u|Min I he credit of till leal and
|H>rsoiial pro|M'rty of the inlwlti-
taiils The Act of Assembly pro-
vi.led that the .S1.),(KXJ sliould
lie rai.sed liy the issue of de-
lientures to that amount. Fnr-
Mier. that the real and personal
prii|H'rty of all p«'rsons resident
or iion-resident in th>' low<'r dis
tri'i of St Stephen should In-
assessed in order to ni' the int'r-
est on such delH-utiires, and ihe
l)rinci|ial when I he hitter whould
iH'comc due. which was iu twenty
years. The .\cl was not lo Iw cn-

Diiw r. Hi.AiK.

'! Pit':

U '

'.1

220 B.N.A. ACT, s. 92 (10).— RULE OF CONSTRUCTION.

■.

Dow V. Br.ACK. forced until np^iroved bv two-thirds
of till' rjiti'imycrs liiilijc to 1»c
nss*'s>i('(l tlu'rcnndcr, whose iiHseiit
was to Im- ccrtilied '<y tlie Gove -
nor ill ('niiiu'il, tlint ">> tlie (TO\cr-
nor-Oencral in ('ipiiiicii in (.^inuu a.
All the fornmlitic^ «)f tiie Act wt re
eoiniiliMl with. Tile ?iiii\ority of
tiie rat(-|itu('rs dissented from the
tirraii^enicnt, and th!> lU'lion was
raised.

Allen, J., who delivered thn
jiid{;inent of the majority, said :
" It wa.s eontended this Act was
iiUfd rirrs of the local lef^islature,
and therefore void; that, under
B. N. A. Act, see. !)2, snh-see. 10,
paraf^iaph (ti), it was withdrawn
from the ela.ss of suhjeefs on whieh
the provincial le};;ishitiii(^ mi};ht
le<;islato ; and that liy force of
sec, 91, whieh declares the matters
over whieh the Parliament of
Canada should have exclusive' legis-
lative authority, it Indonged exclu-
sively to that Parliament. I'nder
see. 92, whieh enumerates the
matters confided to the local legis-
lature wc have hy snh-see. 10
' local works and undertakings
other than such as are of the fol-
lowing elass«^s.' Then follow three
paragra|)hs, {a),(h),{c), of excepted
classes. Paragraph (a) is the only
one that liears on the subject l)efore
us, and it reads thus — [rends it].
Cnder .sec. 91, which s|MMifies
tin' classes of suhjects assigned
exclusively to the Parliament ■■(
Canada, liy sub-sec. 29 we have —
[reads it.] It was contended that
the subject-matter of 3H Viet c. 17.
came within one of such excep-
tions, and was therefore iH'yond
the iKJWer of the provincial as-
seiiib'. Ill the case of Reg. r.
Chandler, II June 1H(}9, 1 Han-
nay, S. C. N. B. 548, this Court
very clearly enunciated the priii-
cijilcs by Avhich it should be gov-
erned, in deteiinining cases where
local legislation was attempted on
matters express'y withdrawn from
the ])roviiicial legislatures and
vested exclusively ia the Parlia-
ment of Canada; and in the case of

the European and North Aiiicrican
R4iilwav r. Thomas, IIIImin Tiiin
1872, 14 S.C.N. B. (I Pugs) !•/
decided a short time ago, wc ex.
amined those jiortions of the !l|si
and 92nd sections by which ih,.
question now under discussion iiiiisi
U' detennined. In tliat case uc
decided that where the riiiiwiiv,
the immediate subject of Ic^ji^ln.
tion. was to be; constructed clcmlv
within the limits of the pioviinv,
and not connecting the proviiicc
with any other or otiiers ol' ||||.
provinces, and no |Hiwer \vii< iii-
tempted to be given to extcin'i If.
yoiid into the United States „{
America, it was pr.tperly the siili-
jcct of legislation by the provin-
cial assenihly." " It is a cleiii iiihI
well-established rule of constniclioii,
that where the words of an Act dl
Parliament are plain and niijini-
biguous, and without anything' in
the Act to limit or control tluiii,
courts are lioiind to construe tlicin
in their jilaiii and ordinary m'ii'm'
In such a eas4', we can look to im
thing but the language of the Ad,
giving the words of the statute
their ordinary meaning, to cam
out what the legislature in \viiiil«
enacts. We have eitf <1 eiiinii;|i i.l
the Act to show the snbject-iiiiltiT
legislated iii)on, and the general in
tei i-on of the legislature relntiiij;
thereto. The other provisions iv
late only to the Act not coiiiin;:
into o|M>ratioii without thevoleaml
assent of tsvi (thirds oV the rati'-
payers of the district, and to the
means by which the object (oiilcni-
plate(i is to be elTeeted. Ii: ih
Kiiroi."aii and North Aii^eiiiin
Railway r. Thomas we shownl
that the right t«i legislate rehiliv •■
inter (ilia, to railways and otlifr
works and undertakings coinu'cliiiL'
the province with any oilni- m
other of til-' provinces or "Nlinilin)!
iH'yond the limits of the pio\iiMf
helonged bv expivss terms of ibi'
B.N A Ai't excju-ively to the Pnr
lianient of Camula If that Ih' s',
how can this 33 Vict. c. 47 1*
\alid ? The railway, witli a vii'Wto

B X.A. ACT, s. 02 (10).— OBJECTS OF GEN. NATURE. 227

ihc coiistnu'tion of whieli tho Act

Hiis I'lssi'd. nifisf iinriiu'Mtionnhly

t'xtcml: bevond the liuiils nl" tliis

iiidviiMM'. It is H (■(>iiiii>i'tin<; liiii'

111 riiilwiiy IVnin flic town of

Hiiiilton ill tlic United Stntrs of

Aiiicrii!! to tlic line of the Nt'W

iii'iiiiswii'k mid Ciiniidii Utiiiwiiy

;iii(l liiuid Coiiipiiiiy (a itiiiway

loiislnii'tt'd witliin tliis proxincc

liv \irtiic of divers Acts of tiic

I'roviiiciid As.seiiildy) nt or ncnr

DclHM'k station so called in this

Mi'iuiiice, for llie |Mir|>ii'c, as tlie

All declares, of iiiectiitf; (lie de-

siit's (if the inlialtitaiits of tin

town oi' St. plicn in llic eoiinty

(if Clint lotti , mid to cnali'e iheiii to

lia\r (.1- -tated in the A(!t) direct

niiiwiiy coiiiiii'MiicMlion iM-tween

iroiiltdii ill tlie Stale of Maine,

I'.S., iiml tile St. ''idiv Valley in

the comity of (."liirlin.e in this

|iioviiicc. How then can anyone

wild lends ill ' *et, cscniK' the con-

(•lii>ii(iii that ii \ "tly eoiitravcnes

the letter and "pirit of the B.N. A.

,Vrt ill this, ;!«t it <i»;ds with, and

iiiiiki's provis.;"' I •, the constrnc-

lidii ".!id completion of a railwny

iiiii|m'Sti()iial)ly cxteiidiiig lioyond

the limits of the province, a siihject-

iiiiitter expivssly and unequivocally

ivservi'il to iH! dealt with c.xclnsively

liy the iefjislativc power of iIk^ l*ar-

liiiiui'iit of Canada? It is difiiciilf

liM'oii-ider how, if the local le<;isla-

iMic lijid the pow(>r, it could more

•'H'caiiously le^jislate on the siiliject

(if iiiihvays cxteiidiii}? Iteyond the

liiiiit> (if the |ir(i\ iiiec, or secure the

cxistoiice (ir eompletion of siieh

niidcitiikiii^js, than by providiiifj

till' IiiihIs necessary for llieir con-

Mniitidii, and that, loo, in a case

likr lliis, where, from the Act, it

Wduld seem that llie fiivintj of the

ililMiiliiies to lie issued (hrrellll(h'r

wiisiiM express eiinditidii mi whicli

liif idid WHS to he liiiilt, and wilii-

nreessary consequence, any assess- Dow v. Ui..vi k.
nienl made under if must likewiMO
lie of no le<?al effect, and must
therefore Iw (pi >lled."

Fisher, J., who dissented, and
with wlios(> dc'jision the .ludicinl
Coinniittei siiliseipienlly agn-cfl
(.vcr /iiloir] said: "If the words
'or extend In-yoiid tin; limits of
the province,' in the tirst para-
d;riiph of the Idlli suh-scctioii of
sec. ft'2 of the D. N. A. Act,
arc to Ik> taken in tiiidr literal
sense, then in one view of the
(piestion ,'{.'{ Viet. «•. 47. is t//fni
rirt'.s; as it authorizes the granting
of dehcntures to aid in liuilding a
railway from Iloiilton, wliiih is
in the State of Maine, to the
New Hruiiswick and Canada Wail-
way in this province, uiil(\ss a fair
ci instruct ion of the Act may show
a dilTcient intention, f liave never
Im-cii aide to .satisfy my mind that
this was the true meaning of tin «»
words. Itefore the union of the
provinces, the lefjislntive powers of
eiM h province were conflned to the
limits of the province. It was the
olijeet of the H. N. A. Act to pro-
vide for a P.. 1 lament having legis-
lative powers ovi'r the whole Do-
minion, whudi was constituted liy
the united provinces, and a legis-
lature for each province. The
powers of legislation were distri-
lillted lietweell thes4MlilTcreli< ImmUcs.
Olijecis of a gcneial or natural
(diaracter, such as iiiide and com
mere, railway, and works running
over the wludc Dominion, wrc
(•X( lu'-ivc suh.jects of legislati( 11 liy
tile rarliameiit of Caiiiula ; w lilsl
the power 111 legislale upon I muI
matters and the •■onstructioii td'
local works was eoiiferred upon the
dilVereiil legislaluies. IVfoH' the
r.ii.in, the legislatures of the re-
speelive pro\iiiees were us incom-
petent 1(1 eiiiicl a law exieiiding

diit wliiih. (he fair iiiference in the iK'yund their limitsas dieyaii' imw

idiid cdiilil not, or woiil I not, Im- The I'lnliaineiit of Caniula has now

iMiilt." "The local hgislatnre, no power of legisliitioii Iteymid this

llirii, linving, HI our opinion, ex- pnivince into the Slate of Maine.

I'ldiil its niithority, the Act in It has authority to iiass liiws upon

'|Mis|iii|| is mill Mini M.id; and, a- H Miriniis -ulijeils atl'i i| in;,' the whole

p 2

IBHII

i ■ iHil:

228 HN.A. ACT, H. 92 (10)._WORKS WITHIN DOMINION

I > '

);!

!'m!

I'll

Dow t Ulack J)oininion, nnd which nre in force
in every province. Il nmy incor-
jiorate a rnilway company or autho-
rize the construt'tion of a rnilway
throufjh tlie \vlir)le Dominion, or a
line of telejiraph, or other siicli
puliiie work. Its le}(ishiti\e power
is {general, e.\'enilin<j over ail
(^aiiuda. The K'<;islative |Mj\vei- of
eacli province is eoniined to tlie
individnal provinces. 1 1 tip|M'ar.s
to he the ohject of the exception in
the I()thsnl»-K^'Ctionof see. 1)2 so to
limit tiie ix)wer of the local le^isht-
tnres as to prevent any c.tnfliet of
tht iMirlianients in this rcsjteci ;
and whilst the Parliament of Can-
ada can enact laws affcetinfj each
|)rovincc, each local le^islatnre can-
not legislate beyond the ])rovince,
and the exct-ption confining tl'o-
power of the local legisiatni«' to ot her
works than tho,s<! eonnec'iing the
province with any other (>.• othcis
of the provinces, or (extending Ih*-
yond the limits ;if tht? provincf',
I think must nece.ssjirily mean
works within tlie Dominion of Car -
ada, liecause iiy extending la^yond
the limits of the |»rovince iitosjme
other of tlie provinces, t' ) autho-
rity of the Parliament of Canada
could Im- coutraveia-d ; whilst the
extension into the StJite of Maine
would have no sucli effect, as the
Parliament is a.s powerless to legis-
late there as the local legislature,
and there would In- no ohji'ct for
such limit4ition of power. The
next paragraph expressly refers to
foreign countries; and if the first
jmragraph wr.s intended to include
a foreign country, il would not
hav«' Ik-cu necessary to nuike s|M'cial
provision therefor in the cas' of a
line of steamships in the second.
By cdustruing the Act in this way,
each {Miragraph of the clause has a
4li.stinct meaning, indicating the
(jhject of the different (miiigraphs
and provisions ; and if this Ik> not
tiie construction the .second para-
graph is useless, for, if the words
' extending U-yond the limits of the
province' in the ftist iMuagraph
mean a foreign country, it includes,

not oidy the railways imd telej;iii|i||
lines, but lines of steamships, iinil
the latter are the subject of a dis-
tinct eneetment in the sj'coml |iiiiii.
graph, which could only have Immh
ii\serted to provide for a state dl
things not in contemplation of t[|,>
first. I cannot reconcile these cs-
ceptions with the gi;neral object lunl
piirpos*' of the Act by any otliii'
construction. As the authuritv
conferred by the 30 Vict, c, 'ti,
ini-orporuting the Hoiilton Hraiuli
Kailway Company, to build a rnil-
way is coniine<l to a line from tlir
intersection of the Woo«lsto<'k liin'
with the New Brunswii'k nml
Canada Kailway to the l)ouiiiliirv
of the Stat<' of Maine, I will iini
j)r( siinie that the St. St«'phen con-
tribution of (lelK'utuivs was appro-
priated t(» any other object thiui is
ci>ntemplated by the Act of iiicdr-
poration, especially as the town (if
Houlton is by the statute, 'Mi Vict.
<•, 17., stJitttl to have contributed
towards thi- construction of this
road. The legislatiu'e was cleiiilv
uuthori/.ed, in iny vj- w of the hiw,
to enable the jM-ople of St, Steplin
to contribute towards the constriir-
tion of that |)ortion of the liiii'
within the province, and the most
reasonabh' presumption is that ilu'v
did .so. If there was anything in
the .SO Viet. i-. 54. which woidil
come within ihe exdusive powers
of the Parliament, it is .sjived by tin-
12!»th section, B. N. A. Act, imd
ncNcr having Im-cu repealetl, altered,
or amended in any way, is still in
force. It also ap|H>ars to me tlmt
the li'.i Vict. c. 17. comes witliin
the category of jKiwers provid:^d
for in the lOth sub-s«'ction of .tee
J>2, l)eing purtdy a matter of locid
nature. It is diffleidt to discover
any provision in the exclii.sivc
powers of the Parliament that iiniy
ix- fairly construed to meet this
case; and it cannot l)e <'onteiiiled
that the B. N. A. Act is so con-
strue<l as to prevent localities from
granting aid to attuiu some locitl
object, or receivi^ .some advantage
purely local. The fair construction

B.N.A. AIT, s. 9:> (U)).— PUKFOSK ..i DOM. TAXATION. 220

in this iv.spect ap|waiN to Imj, that
die uiilhority oonferretl upon tlifi
Pailiauu'ut to rais*- inoiicy by any
luwlt* or sy»teui of taxation was i'oi'
tilt' piirposi's of the general Uov-
ciniiit'iil or oi tlie whole Dominion,
til I'l.alih* the Parliament ami
(xtivt'ruiuent toiliseharge thediitit-s
iiiiil oliligations vast upon tlie l)o-
iiiiiiion, anil that taxation tor loeal
[Mirpows i.s eontiueil to the legisla-
ture (il eaeli province.

" Nothing can lie more local than
till- Act 33 Vict. c. 47., for its
cnmlMiciits are made contingent
ii|Kiii II I'uvourahle vote of the rate-
imycrs of the locality desiring the
railwny. The whole subject is as
lociil as can well ht; conceived."
'' I have not adverted to the 13th
sill i-scrt ion of sec. 02, which gives
the local legiwlatitres exclusive
jKiwcr to legislate upon property
Hiiil civil rights, wliieh must coui-
|in>lu'tul a case of the kind under
I'diisidei'ution, iK-cau.se it does not
npiK'ur to nu! to Ik; of the class of
('ii.ses referred to in the 10th sub-
.HHtioii of sec. 92, and it does not
iipiHar to me to come under the
piiicral authority to tax for local
liiir|Mwes, the local legislatures
Laving granted aiil to objects of a
local nature. For these reasons I
Ilia of opinion the rule should be
(liscliiu'ged."

Dow V. Black was considered in
the I'livy Council 5 March 1875,
L H. (I P. C. 272 ; 44L.J., P. V.
52 ; 32 L. T. 274. [The iiwU^ arc
(jivcii above, and the uaiues of the
judges [iresent ante. Note, y. 07.]
Sir James Col vile sai.l (L. U. 6P. C.
ji. LHO) : " The grounds on which
the Su|ireuiu Court has pronounced
llii."* Act to be ultrii vires of the
local legislature are entirely deriveil
from sub-sec. 10 («) of sec. 02 of
llic B. N. A. Act. Sees. 91 and 92
jiurport to make a distribution of
ligiHinlive (towers IwtW; en the Par-
liament of Canada and the provin-
<ial legislatures, sec. 01 giving a
'i gi'iit'ial power of legislation to
the Purliaiiient of Canada, subject
"iilv to th.' exception of such

matters as ])y s»!e. 02 were nia<le Uow v. Hr.Ac k.
the subjects upon which the pro-
vincial legislature!- Were exclusi\ely
to legislate. The lOtl' sub-section
of see. 92 among those enumerated
l( <d works and undertakings
other than such as are of the fol-
lowing classes. 'Then follow the
exceptions, and the fiisl of these is,
linos of steam ' r other ships, rail-
ways, canals, teU'gra|ihs, and other
works and undertakings connecting
the provin<M' with any other or
others of till provinces, or extend-
ing iH'yond the limits of the pro-
vince. A tpiesfion 'ouidiing the
e()n.><truflion of this sul>-section has
been rai.sed both here ami in the
court below. 'l"he respondents in-
sist that the line of railways which
are thereby put within the exclusive
jurisdiction of the Parliament of
Canada are all rainv.iys which
extend either beyond the limits of
the province into other provinces
within the Dttminioiior into foreign
countries. On the other hand, the
apjM'llants conli'iid that a nioi'e
limited constr'uction is to prevail,
an<l thid if the sub-section lie taken
in conm'(!tion with the following
sub-section (6), it will be found to
a|)ply only to railways extending
beyond the limits of one proviiu c
into another jtrovince of the Do-
minion 'Their Lordships do not
think ')i neces.sary to determine on
tlu' piesttnt appeal this (piestion of
construction, or to atiirm that if all
the h'gis'ation which has t4iken
place, including that for the incor-
poration of the Hoiilton Piailway
Company, and ••mpowering it to
make a railway to the frontier,
or beyond it, hud taken place
after the Imperial statute for IH67
had come intu operation, such
legislation would have been within
the iMiwers of the provincial legis-
lature. They do not think it
necessary to determine lliat (pu!s-
tioii, iM'cause tliey are of opinion
that the validity of I hi- Act oi
Assend)ly, 33 Vict. c. 17., does not
d(>p"nd on the sub-section in (pies-
tion. They are of o[)inion that thi!

....-i-i-— r-^r

j (

S.I

l| .

280

B.N.A. ACT, s. !»2 (10).— LOCAL WANTS.

Rio. i>.
Chandlkr

'till

1 9 •

; j '1

> . •

Dow V. Black. Aot I'linuot Ihj wiid to he ti law in ic-
latiuii to a lucul work or tiiidi rtakiii^
within the lair and ivasonalile mean-
ing of tliese word.**. Tiu' incorpora-
tion of the eonipany with its powers,
and the coustrnetion of the railway
np to the frontier, and therefore
so far a.s any lej;islative jiower
within the Britisli dominions eould
determine that eonstrnetion, liad
iM'cn already authorizedhy llie Ails
passed In-fore the Ini|K'rial statute
eanie into operation. The Act now
in (piestion did not purport to <-n-
large tin' powers of tlie railway
eonii)any, nor e mM it give them
povk'crs to he exercised otx the
foreign .soil of Maine. Their Lord-
ships consider that if the railway
company had chosen to make an
arrnng<>nient with the iidialiilants
of llonlton, in the Slate of Maine,
for the const rnel ion of the railway
on the terms of the tionns of
{<ao,UUO which had Ik-cii ofl'ered to
them from l);>nllon, there would
hi.ve Iteen no legal ohjei'liuh to
iheii' carrying out ilud aiiange-
menl. The Act was merely one
which enabled the majority of the
inhahitimts of the parish of St.
Stephen to raise hy local ta.xation
a s\disidy designed to promote a
work which they considered to
lie for the iH-iielit of tlieir town,
and to phice the inhahitants in
such a position tu Itargain and lo
act for their comnu)ii heneli!, in
the same mimner as a prival(<
person niiglil liavi' thoughl it for
his iMiielil to do. In sulistance
and in principle it d(M-s not differ
from a jirixate act nutliori/.ing the
(I'iistees or guardian ol a minor to
let H warchoUM- lo Muh a com-
pany. Suppose the work, instcr.d
of U-ing ti railway, had heen a
caual, and the inhahitants had
lieen authorized to maki' a iMiinidn

of water t<i the
an\ douitt liave

for the supply

ilistri'i, coidd

U'en entertaiiu'd on tlie sniiject?

Their Lordships are therefore of

opinion no ohjeetion to the vali<lii\

of the Act is to he found in the

suh-.Mction in nuestiou. " [For

end of this jutlgmeiit see Note, siili.
sec. 3, see. 1)1, ttnf", p. t>7. |

The question in Reo. v. Cii.wn.
i.ioii, 11 June ISGJ), 12 S. C.N.I!
(1 Hannay) 5-lH, was an appliciitidii
for a prohibition to restrain our
of the county court judges fiom
acting under an Act passed liy
the local legislature of New Bruns-
wick, 23 March IHtJS, entitulcd An
Act in Amendnu'Ut of c. I'JI
tith- 34 of 11. S. of insolviLi
f'oidiiicd debtors. The Act pro-
vided for the examination of n
debtor iH'fore the county conn
judge as to liis ability to \m
his debts, ami for his diseliiui;i'
from ga(d where his inability i>
shown, and where he has made no
fraudulent transfer. Hitchie, ('..I ,
delivering judgment, held this iiii
insolvency law, which the Le^js
l.iture of New Brunswick liad iin
p.)Wer to pass since the B. N. A.
/ ct, and prohibited the county
'.'(Mirt jn';e from proceeding ur
acting uutler the Acts passed hy
the local 'eg' lature subsi.'umiil
to the connng into operation nl
the B. N. A. Act, altering, aineml-
ing, or repealing tb<' laws relalinj;
to insolvent eoiitined debtors, but
only so far as they legislate mi
the nnilter of insoUcncy, the juris-
diction, however, of the I'oiinty
courts and their res))ective jn(l;:l•^
renn!init'>; unimpaired under tli<
laws o) this pro\inei' relating in
insoKi'ncy as existing wlu'ii ilir
li. N. A. Alt came into i'orci'. Jh'
lited ill his judgment the various
provincial laws on the subject ol
liaiikiuptcy and insolvency.

He also said: "The fad of il.-
Act having Im'cii confirmed by ilu
Oovernor-lleneral was much rejitd
on as giving it a binding force inul
efft'cl, but wi' iail to see how tin-
can he. No power is given to lin
(iovernor-Oeneral lo extend llic
aiitliority of the local legislatiiitdi'
enable it to override the Impciinl
statute, which would l)e the iiitiv
sary result if the local legislalim
could, by ossumiug the right i"

UNA. ACT, s. »2 (10).— RAILWAY TO U. S.

2.'n

! 1

Ifgishitc oil a |)roliil»it»><l siibjwf,
have their actiou legalis»;(l (ir
\iMh\ givi'U to their acts hy the
MUiple confirinntion of (he Gover-
iKir-Oeuernl, thus iiiakiiij^ the iii(h-
\iiliial act of the ioeal legislature
01 of tiie Goveriior-Oenenil, or
ihi'ir united nets, sujierior to tlie
i'liiiininent of Great Britain." But
Ml' Att.-Geu. of Ontario r. Att.-
(icn. for Dominion, [1H94] A. ('.
1^:!; (53 li. J. p. ('. r>}); 70 L. T.

.■),'{(<; in t lie court helow 20 O. A.
It. 4S'.) ; and uiili, p. 7H.

ElIKOl'KAN AND NoKTH A.MICKI-
( AN H Air.WAY Co.MPANV V. TllO.MA.H,

liihuv 'IVnn, 1H72, 14 S. C. N. 13.
(1 Pilffs.) 12 [Ritehie, C. J., Allen,
Wcldfiii, and Fisher, J.I.], wn^ an
iictiuii ii<;aiust the defendant as
>liiuvIiuldL'r in the E. & N. A.
ilailwiiy for certain calls. The
liliintiffs were incorporated by (he
'J7 Vict. c. 43., the object beinjj;
Id tniible them to construct a
liiilwiiy from the city of St. John
ill N'cw Brunswick westward to
ilic lioiuidary of the Unitetl States.
I'll.' m Vict. e. «. and 30 Vict.
f. I'j. were subsequently juis-setl
111 aid (if this undertaking. Then
ill IHG'J the 32 Vict. e. 54.
\im passed to remove doubt.s,
iianiciy, whether the subscribers
liir >liiU('s were liable lor the sums
liy liiciu uiiderwrittfii, by rea.son
of tlic whole capital stwk not
liaviiij,' lieen subscribed, and oth»'r
i|m'stion.«. It, ititcr alia, enactetl
timt the subscriliers should hv held
lialilc in the same manner as if the
wiioli' ea;)ital had lieen subscribed.
It was conlt-nded that this Act,
;i2 Vict. f. 51., v.as nltra viris (he
litcai Icj^isladire, and therefore
^"iil— that under the B. N A.
Alt, SIT. 1)2. sub-sec. iO (//),it was
"ithilinwn Irom the ciusi of sub-
i" !•< oil which the provincial 1 -^^is-
latures inijiht Ugislate, and that by
fom- of s.t . <il it belonged e.<c!u-
MvHyto the Piuiiament of raimda.
l!ii'liit',C'..I.. said: '• I'be 27 Viet.
' l.'J.,of which (he Act under con-
Mdi'iiilinii i> ,11) ameiiibnciit, i> no

NoKTii Amrhi-

CAS lUlLWAV

Co. V. TuouAs.

Act to incorporate the E. & N. A. Ecuoi-ean .inu
Railway L'ompany for extension
from St. John westward, anti au-
thorizes the company so incor-
porated to locate and con.stnict
anil linally complete a railway 'from
tlu' city of Si. .lohii in this (iro-
vince westward to the boiimliiry of
the I'liited States.' Such a rail-
way, if constructed, clearly does
not connect this province with any
other or others t)f the provinces ;
and without stop|iing to notice the
marked diflerence of the language
'connecting the province with any
other or others of the provinces'
and ^c.itvndhiff bci/ohtl the limits
of t/ir provinrr,' can we .say a rail-
way extends beyond the limits of
lh<' iirovince when its location,
construction, and completion is
actuidly confined within the pro-
vince, and when it is limited in ts
extent ' to (he boundary of the

Tnited Stales' but not authorized

to go one inch beyond ? But it was

claimed to have lieeii shown, by

evidence outside the Act, that at

tli(^ lime it was pa.s.sed, and also at

the time of the [Missing of the 32

Vict. c. T)!., it was contemplated

and intended by the promoters of

the undi'iiaking to connect with a

lino of railway to ' be built in the

State of Maine, in the United

States, to meet the E. & N. A.

Railway for exttusion from St.

John westward' at thel oundaryof

the United States, and, therefore, it

is contended it was a railway ex-

t' uding beyond the limits of the

province. But we think we have

no right to lo<>k to intentions or

anticipi'tion or doings of parties

outside iiie provincial legislature,

eidier in the Slate of Maine or in

the priivince of New Briin.swick,

a'.id that the intention of the legis-
lature, as expressed in tlie Act,

alone can control us — that the fact

of the State of Maine authorizing,

or ii.s|H'opli'inlciiiliiig, loconstruc(,

III actually constructing, ii line of

railway in that cmintiy i annol in

any way affect the authority of our

own l.jiislalure to le^islHte on. imd

i I

iiii

I :i

u:'

hi t

(try !

:■

232 H \.A. ACr. s. 91» (10). — I'UOVINCIAIi UAlliWAY.

KltROPBAIf AND
NOBTII Amkhi-

( A!» Railway

Co. V. TllOMAB.

Ddbib II. Tem-

I'OBALITI^W

Fimo BoAHii.

i I

•!)

(lonl witli, niilwny uiiilcrtnkiiins,
provided alwiiys such niilways do
not coiUH'ct the province with any
other or others of the province,
nor extend lieyond tlie limits of
tlie province. 'Iliis is the simple
<|nestion, and all we have to con-
sider in determininfjon tile validitv
of the Act." " We therefore think
tliis is a local work and under-
takiii); other than such as arc of
the classes einimerated in para-
graphs (d). (/>), (r) to snii-sec. 10
of sec. \)'2, and in relation to which
tiie lejxislaturc of this province may
exi'hisively make laws. The H'2
Vict. c. ,">). hein^. Iheicforc, in our
opinifin, valid, that Act dispose*; of
tlie l,'2. ;{,«,!>, and 10 olijcctions."

It wasai';;ned in DoiiiK r. 'I'km
roiiM.rriKs Ki-nd M(i\iti>. in (/uc-
liee il H. .Iiinc 1!», IHHO, and
in V. r. .Ian. 21, 1SH2, 7 App.
('as. I.'IO; 'y\ L. .r. I>. C. 2(5; 4(!
Tj. T. I ; and x(T 2(! L. ('. .Iiir. p.
170, that the Imperial Parliament
liaviiifj expressly excluded, l>y siih-
sec. 10, sec. 1)2 of til.' M. N. A. Act,
IVuin the jurisdiction of the local
h'fii.slatiire all " Lines of steam or
other ships, \c.," has shown its
intention of conferrinfi; on the I'ar-
liament of Canada |)owers of le<;is-
lation in all matters afrectin<; iiinrf
than one province, and alth(ai<rh
Dorioii, ('..!., drew a diifercnt in-
ference from this section, vet his
jiid^jinciil was reversed in (he
Privy <'onncil, where it. was held
that an Act of the Qnclicc Fic^jisia-
tiiiu', 'AH V^ict. c. (51., dealing' with
the Miliject of an A'l passed l>\
the old |ini\ince of i anada in
resiK-ct to cleiffy funds •>f and in
both Ontario and (iueltec, was in-
valid, and that an Act hy hotli
Ontario and (^iicIm'c could not ilo
what the (^uehcc Act att(>niptcd to
do, which cfinid only he done liy a
Dominion ,\ct. [.SVr Note, siih-scc.
l.'{. sec. '.>2. 1 Cowan /•. \Vri;;ht,
1H70, 23 (Irani (O. C. U.) OKi. on
the Ontario Ad, .'{H Vict. c. 75.,
nnd re (loodhiic, lit Grant, 366.

In BdiTuooiN r. La CoMi-xiiMi.
Dp ('iikmin in: Pkij dk Mo.,-
TitKM.. Ottawa, kt Occ idkntm.,
consolidated appeals, in tjinlicc
q. M. 14 Dec. IH7S, ill p. ('
l''el». 2(5, IHHO, ;') App. Cas. .JHI ;
111 L. .1. P. C. (52; 42 L. T. 111.
the railway compiiny in that msr
liad been oriffiiially ineor|M)nitf'i|
under a (Jiielii-c Act, .'{2 Vict. c.V)
My the Canadian Act, ;<6 Vict. «
82., the railway was declnrod to Ih'
a work for the p>neral adviiii-
taf^e of Canada, and sec. ,5 tliiil it
shonlil Ih> deemed a railway to W
constructed iinih'r the authority of
a spi iai Act of the Parliainenl of
Canada, in accordnnco with tlic
Dominion KaiI'vay Act, IHtSK, niul
that Act was made to apply ; ami it
was provided that no part of tlii'
(Juchec Uailway Act, 1H(5!», slionM
apply to the snid railway, and tlini
no part of the Quebec Haihviiy
Act, 1H(50, should be iiicor|H)nili(i
Then, by a deed, in 1875 the cdin
paiiv purjioscd to convey the wliulc
railway to the Quebec Ciovermmnt,
■ind by the (Juobec Act, 30 Vict
c. 2., such transfer was conlirincil
The Privy Council la-Id lliitt iIm
provisions of the Dominion Ad,
read with the sub-.sec. 10 of sec.
02 of the Hritish North Amcricii
Act, 18(57, establislied that llir
tran.siclion betwetdi the coiiipiinv
and the Government of (^iiclitc
could not be validated by an Ad nl
the provincial lejjislature. It \vii»
belli, Sir James ('olvilc <,'iviii}.'
jud;;nu'nt \ser .') App. Cas. nl p.

10 1 |,tlial "tlietnin.saetion bctw n

the comiMiny and the Goveiiiint'iii
of (jiielicc could not )h^ valiiiiilrii
to all intents and purposes by an Ail
of the provincial le}»islnturp,biil tlinl
an Act of the Parlinment of Canailii
was essential in order to {five it
full force and cfTect. Thii^ propo-
sition was finally Imrdly disputoii
by tlie ler.rned counsel for the n-
spondciit, but they relied upon tlw
Hlh chuise of the deed and the Kith
section of the Quebec xVct (3fl
Viet. c. 2.) ns showing that if

HN'.A. ACT, H. »2 (10).— CHOSSFNCJ DOM. UAILWAY. 2JW

cniiix* toihc I'arliniiiiMit of i'HniMlii
lor Hi* siiiit'tinn wiis williin tli<>
loiili'iiiplHtioti of til)' parties, and
.'iiiitt'iiili'tl lliiit lii-roi'c lliat .sanction
\\'i» (iltiiiini'd tile (nui.>«ai'tion wrn*
Miliil l<'i' soint' |iin'|M)s<'s, anil ^iivc
iviliiin int'lioafc I'i^flits wliicli were
ia|iiilp|t' III' Ix'in;; a.sscrlcd." 'I'ln*
iuilmiii-nl llii'ii |iro<'('cdcd, after
(li^tin^ruisliinK (l^n-at Wcstfrn
Hiiilway Company *•. 'Tiu' Hir-
iniii<;iiaiii and O.xford .innetion
Kiiiiway, 2 I'hill. Railway Ca-scs,
.■)!I7. (Iiat in the Canadian oa.st' in
<|iii'^li(in tlif pultlicand crttditors of
ilic coiiipany wcio no parties to tin-
iiaiisiiction, aixl coidd not lit-
Mtficti'd l)y it nntil it was fully
Miliiliitcd l»y an Ai't of the I'arlia-
iiiint iif Canada, to obtain which no
iitl^ni|il wcins ever to Imvi' been
iimdc, llirroforo the whole trunsac-
tiiiii, considered as a whole, was of
III! force or validity im against the
n|i|ioliants.

Where a provincial railway is
ili.xjroiis of cruMsing a Dominion
milway, it ap|H'ars, by Chedit
Vm,i,ky C(». v. Ghkat VVestkun
Kaimvav Co., 1H7S, 25 Grant 507,
iliat the approval of the Dominion
I'ri\, Council Railway CoininitttN',
Mild also, if an Ontario railway,
llic approval of the Com'nissioner
el' I'liltiic Works for Ontario, uuist
Ik' olitaint'd. And the .•ifjreenient
III the companies to waive the.xe
riiiiaitions was iield in tliat case to
I"' of no use. Nor will the aj^rce-
iiu'hl alone of all the committee
ilii. Tiiere mn.st be both consents.

i'louilloot, V.C., siiid: "The
ili'iniiirci' raises the fpiestion
wliilliir, where a provincial rail-
WHv in Ontario cros.ses a Dominion
niilwny, it is necessary to procui-e
till' approval of the Commissioner
of Piihlic Works for Ontario as
Will as the approval of the Rail-
way Cniiimittec of the Privy Coun-
liiof the Dominion— and also, if
timt be so, whether the comimiiies
I'au waive this provision."

" Hv the Dominion Act of 1872
[35 Vict. c. 05. s. 5], the Great

Western Railway works w«'re de- Cbbdm Vallkt
dared to be for the fjeneral advan- Co. r. (Ikkat
ta^e of Canada, and subject to sec. Wf.wehn H.ui,-
l.'iO of c. (5(). of C. S. of C, which *' *^' '
prohibited it from availing itself of
crossinfj powers over ot her railways
without };ettin;; the approval of tlie
Hoard of the Hallway Commis-
sioners, for whom the Hiiilwny
Committee of the I'rivy Coinicil
was subsliluted, IH08, "lil Vict.
V. (W. s. 2;{. Hy an Act of 1H77
(40 Vict. c. 15.) the powers as to
crossini^s in the Act of ISOS were
extended to I'ailwavs incorporated
under pi'o\ineial Acts, in any ea.se
in whicli it is propo.si-d that they
shoidd cross a railway inider the
lejjislalive control of Canada. I
apprehend there can lie no question
that this Act of 1877(10 Viet. c.l.'i.)
is ipiile within the conipeteni'v
of the Dominion Parliament, as
necessaiy and essential for the
pi'olec-tion of the Dominion rail-
ways within their control : so that
the approval of the Railway Com-
mittee is reipiisite liefore such
a crossinfj can Im' enforced, Hv
R. S. O. c. I(i5. s. 5), sub-sec. l("i,
no railway company shall avail
itself of the crossiu}; |iowcrs (in
sub-sec. 15) without the api)roval of
the Commissionei' of Public Works;
and by .see. 1 the Act api)lies to
any railway subject to the le<risla-
live authority of the proviwce. The
Credit Valley Railway Company
was incorporated by Ontario
statute, .11 Vict. c. .38., and is
therefore subject to this pi'ovision.
Hence it woulil .seem that where a
provincial railway crosses n Domi-
nion i-ailway, the approval both of
the Railway Committee of the
Privy Council .iiid of the Com-
missioner of Public Works must
tiist lie had." Then his Lordship
said : " It may 1m' stiid that the
approval of all the Railway Com-
mittee affords all the protection
requisite for the puMii- sid'ely.
Perha|)s it does, but the lefjislatui-e
have thought it Ht to recpiire the
additional protection of the sanc-
tion of another olTicer." " Being of

»'

r
i

:t I

i; '

M4II
Mil

2Ji4 B.N.A. ACT, s. <»li (M)— BlULDINCJ SOCIETIKS.

Cbkbit VALI.KT o|iiiiion tln> npprovnl of tlic C'oin-

Co. V. GiiLAT ,„i^^i,„„,,. „1' I'ul.li,. Works raniiol

VVB8TBRN IvAlL* , ,, , . . • ■

WAY Co. ''*' •'"*l»i''"*"'<' With, llicrc iH no in-cd

to oxaininp wliotlior tlin nets of ili<
colli I III 11 ios iiiiioiiiit tu a waiver."

(11.) The iiicoi'i)()mti«)u of
objects.'

Coi..il!DILIilN(i ' Coi.ONl.M, Hl'll.niNIl AND In-

andInvestmknt vi.;s|mkm' Awsoci ation r. Att.-
(Ikn. ok (Ji'kbkc, in (iiU'lHc Q. M.
21 Mairii 1HH2, 27 L. V. .1. 'J'.)")
|.v»r, for jiulp's, |». 21()|; in 1*. C
Drc. 1, 188.3; !) Api.. ("as. I'»7;

companies with provincial

Asso. c. All'
Ohn. oi"

.{ I.. J. V. ('

1!) ii. I'. 78S>,

(li-cidcd tliiit till- Dominion can in-
corporate a coiiipany lo earrv on
its o|M>riil ions lliron<;lioiit tlie l)o-
niiiiion, Inil llie capacity to so
carry on its laisiiiess only cnaliles it
lo (III so consistently willi the law
liieh it is

•I' the

lirovinee 111 W

opcnilinj;. Hiit a clear case must
Ik' shown that it has acted iilcfially.
Sec (.'haiidieredold Miiiiii}^ Co. r.
Dcsliarats (an American incorpor-
iiled companv), in Q. B. C^nclicc, 10
Dec. 1870, l"5 L. C..J. 11; in V.C.
.Iiilv 2i), 187;{, L. U. 5 V. C.

2!)0; IJ L. J. I'. C

7.'J, putlin;;;

little \\ci};lit on Kierzkowski v.
(iriiiid .Iiinetion Bailwav Co., Nov.
T.i, 1857, 4 L. C. .J. 80; 8 L. C.
1{. 3. The worth ol' the opinions
ill that case iM'iiij; to|>iH'd liy tin-
fiicatcr authority of the Code [ur-
ticleSGlJ.

At the heariii}; of the Colonial
BriLDiMi and Invest.mknt Asho-

< lATlO.N f. AtT.-GkN. ok t^UKIlEC,

there were [trcscnt Lord Fil/f^criild,
Sir Jiiirnes I'eaeock, Sir Moiitafjne
E. Smith, Sir Moliert Collier, Sir
K. Couch, and Sir A. Iloldioiisc.

Sir Montafinc E. Smith, in dc-
liveiinij jiidfinient, said: "'i'his is
an appeal from a jiidfjnicnt of the
Ciairt of Queen's IJciich of the
province of QucIm'c I'cvcrsiui" u
jud<;ment of the Sii[Krior Court,
which dismissed the petition of t!ic
of the province i»ruyiug
that it be declared that the appel-
lant company had iieeii iUcgally in-

Att.-«ei

corporatcil, and that it lie ordeinl
lo In- dissolved and prohiliitcd I'loni
aclin^^as a corporation. 'I'lie jiid^'-
meiil now iip|M>alcd from did imt
fjraiit the prayer of the pctitidii,
lull <rave otiier relief in thciiianiiii
hereafter to he iidvcrtiHl lo. jjic
Colonial Building and liiveslinini
A.ssoeialiou was incorporated liyim
Act of Parliament of Canada. .'17
V^ict. c. 103. The preamlile sinii •^
'That the iK'isons therein naiiicd,
owners of real estate in the cit\
and district of Montreal and else-
where in tlie Dominion, have piii
lioiied for an Act of incorporiitidii
lo eslalilish an association to Ih
called the Colonial Building niid
Iiivestnicnt Association, wheicliy
powers may Im- conferred on llii'
said I'.ssociation for the purpose of
Imying, leasing, or sellin<; liiiiil,
[)ro|M'rty, and ii])piirteiiaiiccs llieri'-
of ; for the purchase of linildin;;
materials, to construct au improvni
class of villas, homcsteiids, cottiifics,
and other Imihlings and preiiiiM>,
and to sell or let the same; iiiiil
for the purpose of cstahlishiiif; ii
liiiildiii}; or subscription fiiiul In
which [M'rsoiis may sub.scrilHMirpiiy
in money for invest mentor for biiiiii-
\u^ piiriKises, and from which |iiiy-
iiients may 1h' miule for said |mii-
|»'jsc, and also to act as an a'^ency.'
Sec. 1 incorporates the sociely.
Sec 1 enacts that the a.s.socialiiui
shall have [Kiwer to acipiire mid
hold by i»iircha.se, lease, or othii
legal tith", any real estate uecessmy
for the carrying out of its iiiulii-
taking; to construct and maintain
bouses or other buildings ; lo lit.
s«'ll, convey, uud dispose of tbt
.sail! proiK'rty ; to uccpiire and uh'
or dispose of every description of
materials for building puriwses ; to
lend money on .security, by uioil-

H.N.A. ACT, H. llj (U).— til'KUKC LAWS.

235

_r||j,r|' (III I'Cnl I'Statc, (»!• fill l)o-

iiiiiiiiiii or |ii'(i\ inriiil pivi'i'iiinriil
Ml iiiilii"*, CI' "II till' slocks (if
iliiirli'i'i'il liiiiik^ ill till' Doiiiiiiiiiii :

;l|l(l III Ill'l|llil'(', IkiIiI, IIIhI llis|IIIS<>

,,t imlilic scciiritit's, sliKjks, ImukIs,
,,i (IclKiiiiirt'H dl' iiiiv <'(ii|i(inilr
l»<i\'w>, mikI iillici'(lftiiit'il st'ciiritics.

rill' clilllSC lU'ON idl'S llllll (III' llS.Sd-

liiiiiiiii simll sell llic |ii(i|M'rly s(»
,i(i|iiin'il williiii li\t' )ciiis rroni the
,|;ilr of I lie iiiiri'lius«' ihcn'ol'. Sec.
,j iiialilcs llic iissocicfioii to net iim
,111 apiii'y iind trust fomiMinv.
Sir. 11 inovidcs that tin- cliicr
nllici' 111' llif association sliall lie
III ilu' city of Moiitical, hikI that
liiMiicli (l(licl'^ or ap'iicics may Im-
i-ialili>lu'il ill London, >]n<;land,
111 New York, in the I'nilcd
Sllll^^ of America, and in any city
III lown in the Dominion of C'an-
iiihi, f(ir sikIi |)iirjK).s»'s as tiie
ilinciois may determine, in accor-
(l;iiKV wiih the Act; and tlial
liiiiuls, c<m|ions, divicU'iids, or other
|i,iMm'iil> of the a.ssociation may Ih'
iniiilc luiyablo at any of tlio caid
iilliies or a^^encies. The secr(>tary
n| the iisMieiation, the only witness
I'iillcd in siipiiort of the iietition,
|iiiiv('il that the association had
lKui;jiit lands, erected houses on
Mnii lands, and .sold them, and
llllll also liuilt lioii.ses on the lands
if olliirs, and lent money on real
iMiite. He stated that these oi)era-
limisliad liiiherto lieen confined to
ilii' province of Quclu'c, though
ilfiiits had In-en made to extend
ihc liiisiiiess of the comiMiny to
I'lhiT |imvinces, and to estalilish
iip'iiiifs in Gla.sgow and New
York, which had failed in conse-
i|miitr of tlu! inability of the
^i^Miriation to rai.se snllicieiit capi-
liil III order to iiuderstand tlie
Miii'-tion which ultimately became
ihi' principal one to lie considered
ill this ap[)eal, namely, whethci
till' ju(l};nient of the Court of
tiut'cn's Bench is i)roiH'rly founded
ujHjn the Att.-Gen.'s iietition, it in
uiTis.sary to refer to the Code of
(-'ivil Procedure of Lower Cnuadu,
"u which the proceedings are

Ok.v. or

based, llie sco|m> and prayer of the Col. Uiildino
petition, and the natiiie'and form AiinlNNKsiMKNi
of the jiidiinicnt appeah'd from. A"""- •' \" -
The heading.; of c. 10. s. 1 of
the code is, 'Of corporations 11-
le^^ally formed, or violating or e\-
cecdinij their powers.' All. !(}>7
is as follows: — 'In the I'ollow-
in<; cases: (I) Whenever any iis-
sociation or niimlM-r of jiersons
acts as a corporation wilhoiit Immii;;
legally incorporated or recognised;
(li) Whenever any corporation,
public body, or board violates any
of the provisions of (ho Acts by
wliieli it is i^ovcrneil, or lM'<'omes
liable to a forfeiture of its rights,
or ilcM's, or omits to do, acts
the doing or omission of which
amounts lo a surrender of its cor-
jioiiile rights, privileges, and fran-
chises, or e.vercises any [Miwer,
fianclii.s*', or privilege which does
hot belong to il,oris not conferred
upon il by law: — it is the duty of
Her Majesly's Alt. -(Jen. for Lower
Canada to prosecute, in l[er Majes-
ty's name, such violations of the
law whenever he has g(M>d reason
to believe that such fm-fs can be
established by proof in every case
of public general int«'rest ; but he
is not bound to do so in any other
ca.se unless sullicient security i»
given to indemnify the CJovern-
nient against all costs to be in-
curied upon such priM-eeding. And
in such case the s|)ecial informa-
tion must mention tluMiamesof the
jierson who has solicited th«' Atl.-
(ien. to Inki- such legal proceed-
ings and of the person who has
beconu! security for costs.' [C. S.
L. C. c. HH. s. !»; 11 Vict, (il),
IH7H, c. i;i. s. l.|

Art.9!)H,asanieiuled, reads: 'The
summons for that purpose must be
jirect'dcd by the presenting to the
su[H'rior court, or to a judge, of a
special information containing con-
clusions adapted to the nature of
the contravention, and sujiported
by an utlidavit to the satisfaction of
the court or judge, and the writ of
suuimunH cauuot issue upon such
informuliou without the uutborixa-

.rx'-'

! ^ 1

'i f

I. V

IMAGE EVALUATION
TEST TARGET (MT-3)

^ .:^4i.

1.0 !f "ss I

I.I

1.25

Hi Uk
^1 l£

1.4

2.5
22

1.6

^7;.

'>:>

Photographic

Sciences

Corporation

33 WEST MAIN STREET

WEBSTER, N.Y. 14580

(716) 872-4503

'^V

T-?«P

III*

Col. BuiLuiN-a
AND Investment
Asso. V, Att.-
Gen. of
Quebec,

iiil!

Nil

i ■•( i

236 B.N.A. ACT, H. 92 (11).— DOMINION COMPANIES.

tion of the court or judge.' [See
35 Vict. (Q.) c. 6. s. 21.] The
materiiil allegutions of the petition
filed by the Att.-Gen. are the
following : ' That the Colonial
Building and Investment Associa-
tion for years past have been, and
still are, acting as a corporation in
the city of Montreal, and else-
where in the province of Quebec,
exclusively anu as such, ever since
the date of its existence herein-
after mentioned, have been buying,
leasing, and selling landed pro-
perty, buildings and ap])iirtenances
thereto, constructing viHas, home-
steads, cottages, and other build-
ings, and selling and letting the
same, and have already been lend-
ing money on .security by mort-
■^age or hy[)othec on real estate in
this province, the whole, without
'. eing legally incorporated or recog-
lised.' 'That the operations and
I 'isiness of the said association
lave been limited to the province
of Quebec, and being, moreover, of
a merely local or private nature in
the .said province, and having pro-
vincial objects affecting projierty
and civil rights in the said pro-
vince, the said association could
not lawfully be incorporated ex-
cept by or with the authority
of the legislature of the pro-
vince of Quebec' 'That the
said association was incorporated
by the Parliament of Canada in
the year 1874, 37 Vict. c. 103.,
and has ever since been in opera-
tion under the said Act of incor-
poration, which, for reasons above
alleged, is null and void and of no
effect, the said Act of incorporation
being ultra vires. Wherefore your
petitioner prays that a writ of
summons upon the affidavit hereto
annexed be ordered to issue in
due course of law, and that the
■said defendants be adjudged and
declared to have In'en and to be
illegally formed and incori)orated,
an I that the said illegal association
may be ordereil to be dissolved
and be declared dissolved, and,
finally, that the defendants be

prohibited from acting in future
as such corporation, the whole
with costs, distraits to the under-
signed attorneys.' The petition
was verified by affidavit as required
by the code, and thereupon mi
order for a writ of surauions
against the company was issued
by a judge. The i)etition also
alleges it was presented at the
solicitation of John Fletcher, a
shareholder of the company, who
had become security for costs. It
appears that Fletcher was in de-
fault in payment of his calls, but
in the view their Lordships take of
the case, further reference to this
relator becomes immaterial. The
l)road objection taken by the Att.-
tren. in the petition is that the
asisociation was not legally incor-
[lorated, the statute incorporating
it being ultra vires of the Par-
liament of the Dominion. The
judgment of the Superior Court,
given by Caron, J., distinctly over-
ruled this objection. Te.ssier, J.,
is the only judge of the Court of
Queen's Bench who aflBrmed il.
Dorion, C.J., in a judgment which
received the concin-rence of two
other judges, acknowledged that,
having regard to the observations
of this board in the case of The
Citizens' Insurance Co. v. Parsons
[see sub-.sec. 13, sec. 92], it could
not be held that the incorporation
of the association was beyond tlie
l)owers of the Dominion Parlia-
ment, and illegal ; and the majority
of the court gave judgment upon
the assumption, as their Lordships
understand the reasons of the
judges, that the association was
lawfully incorporated. The con-
clusion of the formal judgment of
the court is as follows : — ' That the
stiid company, respondents, had and
have no right to act as a corjwra-
tion for or in respect of any of the
said oijerations of buying, leasing, or
selling of landed proijerty, build-
ings, and appurtenances thereof,
or the purchase of building mate-
rials to construct villas, homesteads,
cottages, or other buildings ami

B.N.A. ACT, s. 92 (11).— LAND COMPANIES, QUET - '" 237

niomise.s or the soiling or letting
of till? same, or the e.stnblishincnt
of a building or subscription fund
for investment or building pur-
|)Oses, or the acting as agents in
connection with such operations as
the aforesaid or any like afFairs, or
any matter of jjroporty and civil
ligiitsi, or any objects of n purely
local or i)rovincial nature, in any
manner or way within the said pro-
vince of Quebec, and doth prohibit
the said company, respondents, from
acting ns a corporation within the
saiil province of Quebec for any of
the ends or purposes aforesaid.'
Monk, J., in a short but clear
judgment, dissented from his col-
leagues, and agreed with Mr. Jus-
tice Caron's judgment. Their
Lordships cannot doubt that the
majority of the court was right in
refusing to hold that the associa-
tion was not lawfully incorporated.
Altliough the okservations of this
hoard in The Citizens' Insurance
Co. V. Parsons referred to by the
Chief Justice, put a hypothetical
case by way of illustration only,
and cannot be regarded as a de-
cision on the case there supposed,
their Lordships adhere to the view
then entertained by them as to the
lesjiective powers of the Dominion
and provincial legislatures in regaid
to the incorporation of companies.
It is asserted in the petition, .:nd
was argued in the courts below and
at this bar, that inasmuch ns the
association had confined its ojiera-
tions to the province of Quebec,
and its business had been of a
local and private nature, it followed
that its objects were local and pro-
vincial, and consequently that its
incorporation belonged exclusively
to the provincial legislature. But
surely the fact that the association
has hitherto thought fit to confine
tlie exercise of its powers to one
province cannot affect its status
or capacity as a corporation, if the
Act incorporating the association
was originally within the legislative
power of the Dominion Parliament.
The company was incorporated

with the powers to carry -; its busi-
ness, consisr'' ; of various kinds,
throughout th Dominion. The
Parliament of Janada could alone
constitute a corporation with these
powers ; and the fact that the exer-
cise of them has not been co-exten-
sive with the grant cannot operate
to repeal the Act of incorporation, nor
warrant the judgment prayed for,
namely, that the company be do-
einred to be illegally constituted.
It is (mnecessary to consider what
somedy, if any, could be resorted
to if the incorporation had been
obtained from Parliament with a
fraudulent object, for the only
evidence given in the case discloses
no ground for suggesting fraud in
obtaining the Act. Their Lord-
ships therefore think that the courts
in Canada were right in holding
that it was not competent to them
to declare, in accordance with the
prayer of the petition, that the as-
sociation was illegally incorporated,
and ought to be dissolved.

"There remains the question
which was mainly argued at the
bai', whether the judgment of the
Court of Q. B., which, shoitly
stated, declares that the association
has no right lo act ns a corjioration
in resiK^ct of its most important
oi)erations within the ])rovince of
Qiiebec, and prohibiting it from so
acting within the province, can be
sustained. It was not disputed by
the coun.sel for the Attorney-
General that, on the assumption
that the corporation was duly con-
istituted, the i>rohibition was too
wide, and embraced some matters
which might be lawfully tlone in
the iH'ovince, but it was urged
that the operations of the company
contravened the provincial law at
the least in two respects, namely,
in the dealing in land, and in
acting in contravention of the
Building Acts of the province. It
may be granted that by the law of
Quebec corporations cannot acquire
or hold lands without the consent
of the Crown. This law was recog-
nised bv this Board and held to

COIv. BDH-DIUfl

AND Investment

Asso. V. Att.-
Gbn. op

QnEHEC.

I i

El I

238

Cor,. BniLDiNo
AND Investment
Asso. V. Att.-
Gen. op
Quebec.

B.T^.A. ACT, s. 92 (11).— MOETMATN ACTS.

; 42 L.
377;

,r.

I lie

law

•. 92

npply in the onse of the Chniidiere
Gold Mininp; Co. v. Dosharats.
[In Queliee Q. B. 10 Dee. 1870,
15 L. C. J. 44; in P. C. .Tnlv 20,
1H73, L. E. 5P.C. 277
P. C. 73; 20 L. T.

"It may also heaspnmed, I'oi
purpose of this ap])eal, that
])owei' to I'epeal or modify tli
falls within sub-see. 13 of si
of the B. N. A. Aet, namely, ' Pro-
peity and civil rights within the
provinces,' and belongs exclusively
to the provincial legislature ; .so thai
the Domini')n Government could
not confer power.s on the company
to override it. But the powers
found in the Act of incorporation
are not necesisarily inconsistent with
the provincial law of niortmain,
which does not absolutely ])rohibit
corporations from acquiring or
holding lands, but only requires as
a condition of their doing so that
they should have the consent of
the Crown. If that consent be
obtained, a corporation docs not in-
fringe the provincial law of mort-
main by acquiring and holding
lands. What the Act of iucorjio-
ration has done is to create a legal
and artificial person with a capacity
to carry on certain kinds of busi-
ness, which are defined within a
defined area, namely, through the
Dominion. Among other things,
it has given to the association
power to deal in land and build-
ing,s, bnt the capacity so given only
enables it to acquire and hold land
in any province consistently with
the laws of the province relating to
the acquisition and tenure of land.
If the company can so ac(|uire and
hold it, the Act of incorporation
gives it capacity to do so. It is
said, however, that the company
has, in fact, violated the law of the
province by acquiring and holding
land without having obtained the
consent of the Crown. It may be
so, but this is not the case made by
the jietition. Proceedings founded
on the alleged violation by a corpo-
ration of the mortmain laws would

involve an inquiry opening ques-
tions (some of which were toncliod
ujion in the arguments at the bar)
regarding the scope and effect of
these laws, the fact of the Crown's
consent, the nature and sufficiency
of the evidence of it, the con>;p-
(pience of a violation of the laws,
and the ))roper parties to tak(>
advantage of it; questions wliioli
are certainly not raised by tlic
allegations and conclusions of this
petition. So with resjject to thi' ob-
j(H'tions founded on the Acts of the
|)rovince with regard to buildiu";
societies. Doron, C.J., appears to
be of oi)ini<ni that, inasnnich as tlic-
legislatiu'c of the province limi
passed Acts relating to such so-
cieties, and defined and liniitod
their operations, the Dominion Par-
liament was incompetent to incoi-
porate the present association,
having for one of its objects the
creation of buildings throughout
the Dominion. Their Lordships, at
present, fail to see how the existenco
of these provincial Acts, if couip-
tently passed for local objects, can
interfere with the power of the
Dominion Parliament to incorpo-
rate the association in question. If
the association by its operations
has r(!ally infringed the provincial
Building Societies Acts, a ])ro|K>r
remedy may doubtless be foinid,
adapted to such a violation of the
|)rovincial law; but, as their Lord-
ships have just observed with
reference to the supposed contra-
vention of the Mortmain Acts, that
is not the case made by the petition.
It now becomes material to examine
more closely than has hitherto been
done the allegations and conclusions
the jictition really contains. The
first paragraph, after stating that
the corporation carried on its opera-
tions in Quebec exclusively, con-
cludes thus : ' The whole without
being legally incorporated or recog-
nised.' The second paragraph avers
that the oi^rations of the company
being confined to Quebec, nnd
being of a merely local nature,
affecting property and civil vifiht'^

B.N.A. ACT,H. 92 (11)— DICTA IN PARSONS.

239

ill the province, ' could not lawfully
he incoporated except by tlio au-
tliority of the lef^islature of the
province.' 'iho tliird paragraph
alleges that for these reasou.s'the
Act of incorporation is null and
void,' the said Act of incorporation
being ultra vires. The conclusion
iiiid |)rayer based on the.so allega-
tions arc, ' That the; association be
declared to be illegally incorporated,
lie declared dis.solved, and pro-
iiibited from acting in the future
as a corjiorntion.' It .seems to their
Lordships it would bo a violation
not only of the ordinary ruU's of
procedure but of fair trial to decide
tliis ajipeal upon a new case, which,
a.<suniing a lawfid cor[)oration, rests
iijion the supposed infringement of
tiic laws of the province by the
eoiiipany in conducting its opera-
tions. This is not the wrong
struck at by the petition, but a
wrongdoing raising issues of a
wlioUy different character to those!
to which the allegations and conclu-
sions of the petition are alone
directed and adapted. It is to be
observed that the inquiries made
by the company's secretary were of
a general nature, and mainly di-
rected to support the allegrtion in
the i)etition that the c^. iipany's
operations had been limited to the
[)rovinco of Quebec. No iu^•esti-
gation of the title to any of the
lands it held, nor of any particular
transactions, was gone into at the
iiearing. The 998th article of the
Code of Civil Procedure requires
that the summons to be issued
'must' be preceded by a jietition to
the court containing 'conclusions
adapted to the nature of the con-
travention,' to be supported by an
affidavit; and provides that the
summons cannot be issued on such
information without the authority
of a judge. It is quite plain that
the conclusions of this petition are
not adapted to the case now relied
on by the Attorney-General; so
that neither the general principle
regulating procedure nor the .special
requirements of the code allow of

it being set up on these proceedings. Coi,. JIuildinu
If the company is really holding andInvkstment
property in Quebec without having (j^^"" 'p ^^''
complied with the law of that pro- QpeJikc,
vince, or is otherwi.se violating the
provincial law, there may be found
proceedings applicable to such vio-
lations; though it is not for their
Lordships to antici[)ate them, or to
indicate their form. It should be
obseiTcd that their Lordships, in
the case supposed in their judgment
in the appeal of the Citizens'
insurance Co. v. Parsons in regard
to corporations created by the Do-
minion Parliament with power to
hold lands being subject to the law
of mortmain existing in any pro-
vince in which they sought to ac-
cpiire it, had not in view the special
law of any one province, nor the
(juestion whether the prohibition
was absolute, or only in the absence
of the Crown's consent. The object
was merely to point out that a cor-
poration could only exercise its
powers subject to the law of the
jiro vince, whatever it might be, in
this respect. It was argned that
the judgment of the Court of Q. B.
might be sustained by the part of
the prayer which asks that the
company * be prohibited from acting
in future as a corporation within
the province of Quebec' for certain
purposes. But the jirohibition is
asked as consequential upon the
declarations prayed for, and when
these are refused there are not only
no declarations but no allegations
in the jietition to sustain it. It
has been seen that the prohibition
contained in the judgm(>nt in the
Court of Q. B. is not an injunction
limited to restraining the company
from doing siJeeified acts in violation
of particular laws of the province,
but is a general jn'ohibition founded
on a declaration introduced by the
court, other than those prayed for,
that the company has no right to
act as a corporation in dealing with
lands and buildings, and certain
other matters witl.in the province.
This declaration, with the prohi-
bition founded on it, is obviously

t ':

■f

f ': ■ i

K !i

tllijliti

240 B.N.A. ACT, s. 92 (11).— BOTH ALTERING ACT.

Asso. V. Att
Gbn. op
Quebec.

Coi„ Bnn.PiNG too oxtensivp. A prohibition in
andInvestmrnt tlif'so wido nnd swooi)inK tonns
would prohibit the conipiiny from
acquiring or doahng in lands,
though it had the Crown's consont,
nnd could only b»> warranted bv
affirming the invalidity oi^ th(> Act
of incorporation, which would be
opposed to what has been stated in
the previous part of this judgnient
to l)e their Lordships" view ; or
at least by affirming that the
company, in exercising its powers
in the province, must necessarily
violate the provincial law, which,
as already .shown, is not a necessary
consequence. In the result th(Mr
Lordships will humbly advise TJer
Majesty to reverse the judgment
under appeal, and to order that the
judgment of the superior courf. be
affirmed, and that the present
i'.ppellants' costs of the appeal to
the Court of Q. B. in Canada be
paid by the prer.ent respondent.
The appelliints must also have the
costs of the appeal to Her
Majesty."

In the judgment in Q. B. Quebec
in this case, 27 L. J. C. 2!)5, in
which Dorio 1, C. J., Tessier, Cross,
and Baby, .T.T. [Monk, ,T.. dis-
senting], took i)art. Sir A. Dorion,
C.J., said: "Before the B. N.
A. Act was passed the organi-
zation . of building societies was
considered as so intimately con-
nected with the different systems of
Ltws in force in each of the two
provinces of Upper and Lower
Canada, that although under the
union which then <>xisted all the
laws aflTecting them were enacted
by one nnd the same legislative
body, it was found necessary to
have on this suliject a separate
legislation for each pro\ince. The
dispositions applicable to Lower
Canada were contained in the
L. C. C. S. c. 69., and those
applicable to Upper Canada in the
U. C. C. S. c. 53. Since the union
of the provinces under the B. N.
A. Act, the e. 69. of the L. C.
C. S. has been twice amended nnd
partly repealed by the legislature

of the province of Quebec, first in
1875 by the 39 Viet. c. 61, and sec-
ondly in 1878 by the II Vict. c. 20.
In 1878 the Parliament of Canada,
by the 40 Vict, c. 50., also amended
and partly repealed the same c. G5).
of the L". C. C. S., and in 187f)
both the Parliament of Canada and
the legislature of the [)rovince of
Quebec, the firstby the42 Vict. c. 48.
and the second by the 43 Vict. c. 32.,
made provision for the voluntary
liquidation of building societies in
the province of Quebec. Chapter
69 of the C. S. of L. C. has there-
fore been considered by tlie Parlia-
ment of Canada as being a Domi-
nion law, and has been twice dealt
with as such, while it has been three
times amended by the legislature of
(Quebec as a pi'ovincial law. The
provincial legislatures have the
same exclusive right, under sec. 92
of the B. N". A. Act, to pass laws
' 'lating to the .subject.s therein
lentioned as the Parliament of
Janada has, under .sec. 91, to pass
laws on subjects not expressly
assigned to the former. It seems,
theriifore, impossible that both legis-
lative bodies .should have had the
right to amend and repeal, in whole
or in part, the provisions of c. 69.
of C. S. L. C. The question was
submitted to us in the case of
McClanagan and the St. Ann's
Mutual Building Society, 24 L.C.J.
162, and we there decided, on the
authority of L'Union St. Jacques v.
Belisle, 20 L. C. J. 29 [see Notes,
.sec. 91 and .sec. 92, sub-sec. 21],
that c. 69. of the C. S. of L. C,
having a provincial object and
affecting civil rights, came within
the exclusive jurisdiction of the
provincial legislature under sub-
.secs. 10, 11, 13, 16, of sec. 92 of the
B. N. A. Act, and that the Act,
42 Vict. c. 48., passed by the Par-
liament of Canada to provide for
the liquidation of building societies
in the province of Canada, was
ultra vires. We, at the same time,
maintained the Act of the Quebec
Legislature, 43 Vict. c. 32., wliieli
had the .same object as the Domi-

B.N.A. ACT, 8. 92 (11),— INCOJTVENTENCE of DOM. ACT. 241

nion Act. We thereby held that
tlie provincial legislatures had ex-
(iliisivo control over tlio Acts
nutliori/.inf^ the estahlishinont of
hnililinjj; societies in the pro\inceof
Qik'Ih'c. It is, however, ar<;u('d
tliiit tlie coini)any responden* is not
incdiporated for the pin'[)ose of
(loiuji business in the province of
Quebec only, but in all the pro-
vinces of the Dominion, and that
as none of the provinces could pass
such an Act, the authority to do
so vested in the Dominion Parlia-
ment, the subject not coming
witliiu any of the classes of sub-
jects assigned exclusively to the
provincial legislatures by see. 92
of the Imperial Act. In the case
of the Queen v. Mohr, 8 Juno
ISSl, 7 Q. L. R. 183, this Court
iield that a company incorporated
by an Act of Parliament of Canada,
•13 Vict. c. G7., to establish tele-
plione lines in the several provinces
of tlio Dominion had no right to
establish an iudeiM'udent lino of
telephones wholly within the pro-
vince of Quebec, and not connect-
ing this province with any other of
tlie provinces, or not being extend-
pil beyond the limits of the pro-
vince, as such iudepemlent tele-
phone line did not come Avidrinany
of the exceptions contenr^ !af rd in
panignii)hs (o), (b), (r) of sul) sec. 10
of sec. 92 of the 13. N. A. Act. Our
judgment in that case was based on
an express provision of the Act
applying to lines of stoan)shi])s,
railways, telegraphs, and other
similar undertakings. Buihling
societies are not expressly men-
tioned in that sub-section, and
their object is not of the same
character as the works and under-
takings to which it refers. Al-
though it is difficult to understand
why a different rule should prevail,
)X't it cannot be said that building
societies come within the express
provision of sub-sec. 10, and that
decision is not therefore incon-
sistent with the opinion express-
(■(1 by the Judicial Committee
of the Privy Council in the case

tj 2.340.

AND Investment
Asso. t'. Att.-
Gen. op
Quebec.

of the Citizens' In.surance Co. v. Col. Bcildino
Parsons [.see sub-.sec. 13, and ex-
plained «)i/'c, p. 239], 7 App. Cas. 96.
In that case, their Lordships, in
their observations on the jiulgment
of Taschereau, J., of the Sui)nune
Court, expressed themselvt'S to the
effect that the power to incori)orate
an insurance company to carry on
business in one of the provinces of
the Dominion, lay M'ith the legisla-
ture of that province ; while the
incorporation of companies to
carry on business throughout the
■whole Dominion or in more pro-
vinces than one, was vested in the
Parliament of Canada, as not
coming within the chisses of sub-
j(.'cts, exclusively assigned to the
])rovincial legislatures. Although
the question alluded to was not
si)ecially raised in the case of the
Citizens' Insurance Co. v. Parsons,
yet the opinions expressed were so
directly to the [)oint, that we do not
feel it would be competent for us
to consider the question as being
now an open one. We do not,
however, consider that the opinion
so expressed covers the present case.
Here we hav(> a company incorpo-
rated to carry on its operations
throughout the whole Dominion,
wdiich assumes to do business in
one province only, that is, in the
province of Quebec. The exclu-
sive right of the legislature of that
province to regulate the establish-
ment of building societi'js within
its own limits, would be destroyed
if the Parliament of Canada coidd,
by granting general powers, autho-
rize a company to act within one
province only. The inconvenience
resulting from the exercise of .such
a power is well exemplified in the
present case. If the company, re-
spondent, had been incorporated
under the Acts in force in the pro-
vince of Quebec relating to building
societies, it would only have ob-
tained the limited powers conferred
upon such societies by c. G9. of the
C. S. of L. C. and its amend-
ments, but by going to the Parlia-
ment of Canada for a special Act of

'■ 'i- 1

1 HI

2t2 B.N.A. ACT, >. f)2 (11).— DOM. ANTI) ONE PROVrNCE.

Asso. V. Att
Gen. op

QUKIIEC.

fifif

I I

ill!

IM. ii;

C'oi.. Bni.DiNO incorporation, it liiisolitiiiiiod jjowors
ani)Invk.stmknt ,,|' ., 1,1, 1,. ii ,|„,|.,. ,.xi,.|„l(.,l cliiiriic-

tcr, mill sncii iis are not conl'iT-
ivd on otiior bnildin}^ societies in
the province of Qnebcc. As tlio
Dominion Parliament conld not
(lirocty incorporate a buililin;;; so-
ciety to do bnsiness exclusively
in tlie pi'ovinceot' Quebec, it would
seem that a company incori)orated
to do business throu<i;liont tiie whole
Dominion cannot restrict its busi-
ness to one province only, without
inl'rin<rin"; on tlie exclusive ri<rlit of
the Icf^islatiu'e of sucii |)ro\ince to
grant tlie authority necessary for
that purpose. We now come to the
second cpie.stion, relatinp; to the
power granted to tlie comi)any, ro-
s[)ondent, to acrpiirc and iiold laud
to an unlimiteti extent within the
province of Quebec. In -the ease
of the (jiiaudiere Gold Mining Co.
V. Desbarats, L. R. 5 P. C. 277 [sec
below], it was held by tlie Judicial
roniniittee of the Pi'ivy Coiuicil,
confirming tiie judgment both of tlie
.superior court and tliis court, tliat
a corjioration, wlietlier foreign or
domestic, is incapacitated from ac-
(juiring, as well as from iiolding,
lands ill Lower Canada witliout tlie
permission of the Crown iirsl ol)-
tained. This restriction relates to
]»roperty and civil rights, arts. 3()()
and 836 Civil Code of Lower Can-
ada, and as such can only be re-
moved by the legislature of the
province of Quebec. Tiie Parlia-
ment of Canada, altJiougii it may
have the power to incori)orat(> com-
panie.s to do business tlirc.;ghout
the whole Dominion, has no rigiit
to alter or repeal the general speci-
fic law.s of the several provinces
affecting the tenure of lands, or
the right to acquire and hold lands
therein. This question was for-
mally decided in the case of Citizen
Insurance Co. v. Parsons, 7 App.
Cas. 96, at p. 11 7 [see below, and sub-
sec. 13], and apart from the general
rule there laid down, we find in the
exhaustive judgment of their Lord-
ships the following passage. [Reads
passage comnieucing 'But it by

no moans follows,' down to 'thon;;li
liie coriioralion would still e\ist
and prcservt .is statnsasa coi'porate
body,' jwsf, ]). 2()7.]

"Thesupposed case commentedon
by their liordships is exactly the one
we have to deal with. The Civil
Code, in the articles already cited,
prohiliits the acipiisition of im-
movable property by corporations
without the pre\ious permission (if
the Crown, and c. 6)1. C. S. L. ('.
sees. 13, 23, has especially gniir-
ded against the accumulation n|'
landed estates, in the hands (if
building societies, by providing;
that they could only hold roil
estate as security lor loans niiidc
by such societies, or for moneys
(hii^ for the payment of stock ; the
only power to hold real estate
absolutely being limited to an
amount of 86,000. Yet the Do-
minion Parliament, in coiiti'avon-
tion to both general laws of the
j)rovince and the special laws
enacted in reference to buildiiij;
societies, has incorporated the com-
[)aiiy, res])ondent, for the very pnr-
))ose, as stated in the preainble (if
the Act, of buying, leasing, and
selling landed [trojierty, buildin;,fs
and appurtenances, 37 Vict. c. 10.'!.
sec. I, and it is in evidence tliiii,
acting under this Act, the resp(in-
deut company lias already ac(piir('(l
larg(> tracts of land in the city
of iVIontreal, and its iuinie(liat(>
vicinity. Wiiatcver, therefore, may
be the ultimate decision as to tlio
right of a company to do business
in one province only when tlio
company is incorporated by the
Parliament of Canada to do busi-
ness throughout the whole Do-
minion, it is clear, from the opinion
expressed by the Judicial Comniit-
tee of the Privy Council [see this
o])inion, p. 267], that thocompanv,
respondent, liad no power to deal
in the purchase, lea.se, and side of
real estate, &c., in the province of
Quebec. We, therefore, considiY
the judgment of the Superior Court
to have been erroneous, and, acting
on the .suggestion contained in the

right

tended to

3.X.A. ACT, s.n2 (11).— PROV. AND LAND ("OMPANTES. 213

iihiivc t'Xtnict I'l'oni llic jiidifmcnl
in Citi/t'iis' lusiininc'c Co. r. I'lir-
soiis, witliont (Iccidinjf tliat tlic
wliolc Act iiR'or[)oratinj.; tlic coiii-
IKiiiy rcs|)(»n(l('nt i.s ultra riris,
we luilil that the company lias no
rif;lit to exercise in the [H'ovince of
QiU'hec tiio powers conferred by
its Act of incorporation, to buy,
lease, and .sell lands, &c., in the
|pi()viiice of Queltcc, and it is by
(.ur jii(l;;inent forbidden to do so."

McCtANAG.AN C. St. Ann's ^Mu-
TIAI, BriLDINO SoriKTY, 21 L. V.
,]. 102, was a case in which ]Mc-
Claimgan, 20 Aug. 1879, applied
for an injunction against the defen-
ders, a building society incori)ora-
twl under C S. L. 0. e. 69., going
into li(iuidiition under the pro-
visions of the Dominion Act, 42
Vict. c. 8. While the proceedings
were pending, the Quebec Legisla-
ture passed a statute, the 43 Vict,
c. 32., re-enacting as to the pro-
vince, all the provisions of the Do-
minion Act, and it also passed the 43
Vict. e. 33., ratifying all proceedings
adopted under the [irovisions of the
Doniiuiou Act. The last Act was
not to affect pending cases. These
Acts were ratified 31 Oct. 1879.
Oa 1 Dee. 1879, the Sup. Ct.
[Torrance, J.] held the Dominion
Act not ultra vires, and refused the
injunction. On 4 Feb. 1880, the
Q.B.Quebec, 24 L. C. J. 1G2 [Sir
A. Dorion, C.J., Monk, Eaniwiy,
iind Cross, JJ.], held the Dominion
Aft ultra vires ; but as the defen-
ders' proceedings had been ren-
dered valid by the Quebec Legisla-
ture, there was now no ground,
when the judgment below was
l^iven, or this ap^ieal instituted, on
wliich to I'estrain the society from
proceeding to licpiidation. Ai)peal
ilisniissed with costs. Sir A.
Doriou, C.J., said: "We cannot
agree with tlu; court below that
the Dominion Parliament had the
right to pass the Act 42 Vict.
c. 8. This Act is not in tlie nature
of an insolvency law, for it is in-
tended to apply to all building

societies, whelher solvent or not.
It is. therefore, essentially an Act
affecting civil I'ights, which, under
the provisions of llie B. X. A. Act,
comes within the exclusive juris-
diction of the local or provincial
legislatures."

CiiAUDiiinE Gold Mining Co.
[a Boston comiiany] v. Deshahats
was an apjx'al from the Quebec Q. C.
10 Dec. 1870, 15 L. C. J. 44, in
which Caron, Badgley, Monk, JJ.
, [Duval, C..r., and Loranger, .T.,
dissenting], held, allirming a judg-
ment given on demurrer by Tor-
rance, J., in the Suf). Ct., Montreal,
31 May 1869 [13 L. C.J. 182], that
by the law of the province of Que-
bec, Civil Code, arts. 364, 365, cor-
[)orat ions are under a disability toac-
(piire lands without the permission
of the Orown or the authority of
the legislature, and that a foreign
cor[)oration which hail purcha.sed
lands in the said province without
such authority, and was evicted, had
no action of damages against the
vendor. Caron, J., said: "La
question decidee par le jugement
est de savoir si les corporations do
la nature de celle qui porte la
presente action, ont ilroit, d'apres
notre loi, d'acipierir des biens
iinmeubles dans la province, sans
la permission de la Couroune on
I'autorite de la legislature. Le juge-
ment qui nous est soumis a decide
la (piestion dans la negative, et a
renvoyd Taction des appelants.
L'intime pour soutenir le bien
jug<?, r^fere a I'Edit on declaration
de 1743 [ler vol. Edits et Onion-
nances, p. 576], fait expires pour
le Canada et eni-egistrd an conseil
supericur; cetedit, suivant Tiutime,
a toujours dte et regarde en force
(huis le pays jusipi'li la pronnilga-
tiou du code ; aiiisi que I'ont (li5-
cidtj les tribunaux dans plusieurs
especes (pi'ils citcnt. Or, a la
clause [)remiere, il y est statue (ju'
aucun etablisseuKMit ou fondation
ne sera fait dans le pays, .sans la
permission expresse de la Couronne.
La clause dix defend a toute com-

Q 2

McClasaoaw

I'. St, Ann's

M0TUAL

buildino
Society.

CirAUDlEllB

Gold :Minixo
Co. V, Des-
dahats.

't' i|

244

B.N.A. ACT, s. 02 (11).— POLICY OF CODE.

ClIAtTDlftRB

Gold Miniho
Co. V. Dks-

BAIIATS.

il !i ! I (

iminniit^) religieu.se ou autres gens
de innin-uiorte d'acqudrir dcs im-
nieubii's, .sans Icttrcs |)at('ntos dc
luCoiironnc; ot par la clau.sc viiigl-
nni^uu', ccttu dofenise est faite a
peine de nnllite."

Hadgley, J., said: " Tlic para-
mount authority ol' our local law
over all corporations antl tlicir
.?veetion in this province is un(]ues-
tionable, whether these; corporations
are of domestic or foreign origin,
as well as over the powers and
ca[)acities granted to them. As to
the foreign bodies, this law applicvs
absolutely, as ■well in respect of
its foreign constituting law as of
the charter |)owers by that law
granted to those bodies, because
our local legislature has absolute
power to forbid corporations to do
certain acts, or to make certain
tran.sactions, altogether, or under
certain conditions, and to iini)osc
such disqualifications upon them as
the legislature may direct, and sub-
jecting those bodies to be brought
within the disqualification of the
law. These are legal truisms
which need no citations from books
to give them support. Assuming,
then, the limited local existence
and capacity of foreign corpora-
tions in this province, it seems
plain, that the statutory permission
extended to them to sue and be
sued in our courts of justice with
reference to transactions in which
they are interested, does not relieve
them from the necessity of showing
their legal possession of the rights
and privileges of our local law to
give validity and effect to those
transactions which they use our
coi' .'ts to enforce or defend ; and
so equally, on the other hand,
must they show that they suffer
none of tho.se disfibilities and dis-
qualifications which our law im-
poses upon all corporations iinder
certain circumstances. Now the
3rd chapter of our Civil Code de-
clares the law applicable to cor-
porations generally in this province,
confers upon them express rights
and privileges, and sn'-jects them

to siieeial and positive dis)d)ilities.
It is not necessary to refer to
the former, but for the latter — thi'
disabilities — the lUi Ith article of iIk;
code enacts, ' Corporations are suli-
ject to partii'ular disabilities, which
eitiier jjrevi'Ut or ri'sliiiin tiiiMii
from exercising certain rii;lit-.,
powers, privileges, Ac, whicli na-
tural persons may enjoy and vwy-
cise ; these disabilities ai'ise eitlicr
from their car|K)rate character, or
they are imposed by law.' The
.'}G5th article tlien declares the dis-
abilities arising from the law, and
amongst them, those mentioned in
the 2ntl sub-sec. of the article,
namely, 'those comprised in the
general laws of the country respect-
ing moi'tmains and bodies corporate,
prohibiting them from acquiring
innnovable property, or property so
reputed, without the permission of
the Crown, except for certain pur-
poses only, and to fix the amount
and value.' It is scarcely neces.sary
to observe that the exceptions of
this sub-section do not apply in tlii.s
case. These provisions of tlie
code are positive enactments, and
are not proundgated as new law,
but are given as declaratory of the
old law of the province, which
expresses not alone the general
law, but likewise the public policy
of the province in regard to insti-
tutions of this nature, and it is
common knowledge that no pro-
vincial Act or charter of incorpora-
tion by the legislature of religions
or secular bodies, has been granted,
without the legislative permission
being provided therein for their
acquisition and alienation of real
property. The royal permission of
the old French law in force, or its
equivalent, the modern legislative
charter, is by the code authori-
tatively declared to be the general
law of the province for cor[)ora-
tions in general, and, without the
royal or legislative permission, all
corporations are prohibited from
accpiiring such real property.
Whatever doubts might have ex-
isted heretofore as to the prohibi-

B.N.A. AC ", s. 92 (11).— FOREIGN CONTRACTS. 215

tivo applicntioiiH of the old Ijiav,
witli ivt'crcnoc to inorcly trailiiifi;
ciirponitioiis, tlicv Imvi' (lisappciiriMl
since tlu! proiniil^alidii ol' the code,
wliicli Ims (It'C'IanMl tliosc old law
liidhibitioiis to 1)(! and to liavo
k'cii our provincial law. Tlu-
terms of tlio code articles aro too
pliiiii i'or a doubtful construction,
1111(1 in the <^encralily unibrnce all
cor|ioi'ation.s, secular, lay, or trad-
iiiff, and .subject them all to the
siiiue dis(puiliticalion to ncipiire
ri'iil property, without the royal or
legislative perniission lii'st had and
obtained. Tin; general law of the
country, ns by the 2nd sub-sec.
iiliove, res])ectin<T both niortniainors
luidiiddiescoriiorate, is to be found
orif^iiially in the ordinance of Loui.s
XV. of 1713, which was duly regis-
tered as municipal law in Canada
lit the time, and has never been ab-
rogated or ri']ieiiled, and which the
code by its .statutory enactments
now assimilates with and applies to
the law of cor[)orations and bodies
politic in general extending be-
yond the religious and eleemosy-
nary institutions of the ordinance.
The modern corporation did not
pxist, and was not referred to by
the ordinance, but our declaratory
code has extended the ordinance
(lisquuliliciition to the modern body
politic corporation, trading or other-
wise, and bound it in politic pro-
hibitive terms of the old law. The
l)ubiic policy of the ordinance
against publicly un,sanctioued and
unpermitted acquisitions of real
property within the province, is the
IM-evailing public policy of our law,
binding upon all corporations, and
strictly holding this corporation at
the date of the execution of their
indenture and deed of conveyance
to them by Foley. Positive law,
as well as State policy, prohibited
the acijuisition by the coriioration
of the lots of land set out in the
indenture, and the corporation and
their vendor could not, ea; mero
motii of both or of either, dispense
with and set aside the statutory
disqualifications of State policy or

public law. Pothier, 'Traites des CiiACDifenB
J'crsomu's,' reierringto the French ^!"''° ^^'"""^
hdit oi 1/1!) tor France, m this „.„,.„
respect siiuilar to that ul wl,'{,
above, from which the former was
in part copied, says that the inca-
pacity to ac(piire by comnumautes
(mortmainors) was absolute, and
they could not ac(|uire 'a .[uehpie
titre que ce soit,soit a titre grutuit,
soit a titre de connncrce,' not oven
in payment of a debt, nor coidd
notaries give their ministry to pass
such de(!ds ; power being reserved
to the king alone to accord {)er-
mission to^iccinire immovables, &c."
[On the French Itiw in Canada see
Symes v. Cuvillier, in P. C. Feb.
25, 1880, Wheeler's P. C. Law
107 (•sre also cases in same, ))p.
(50, 105, 303) ; 5 App. Cas. 138 ;
49 L. J. P. C. 54 ; 42 L. T. 198 ;
and the Chaudiere case in P. C,
L. K. 5 P. C. at p. 288 ; and .see
Exchange Bank Canada, sub-sec.
13, sec. 92.] "It results from all
these circumstances, that this foreign
corporation is not known to the
lav/ as a natural person : that it
cannot of right claim the exercise
of the rights and privileges of
natural persons; that it cannot
acquire or hold immovable property
in this province in its own name
without royal or legislative jjcrmis-
sion therefor first had and obtained,
and could therefore suffer no legal
eviction from what it could neither
acquire nor hold against a positive
prohibitory law in accordance with
jjublic policy against such acquisi-
tion or tenure; and, therefore, could
claim or demand no damage by
reason of its own breach of the
law and of public policy, and of its
privation of illegally acquired pro-
vincial real property. Courts of
justice may sustain a contract by
a foreign corporation, but only when
they can enforce it agreeably to
the rules of the law which the
courts are bound to administer,
and not in the peculiar maimer of
a foreign state, which is unknown
to and of no force within the juris-
diction of the adjudging court.

ClIAUDlftllE
OOI.D MlNINO

Co. V. JJks-

IIARAT8.

21C B.N. A. ACT, 8. 92 (11).— CONTllACTINO outside PBOV.

Tlic objrffidii f>f till' (loinnrrcr in,
llicrct'i )!•(', iilso iihsoliitc iii;iiiiist tins
corporation iiiidcr tlic [ji'ovisions of
our locnl liiw."

That case wnsdllirMHMlin llic I'ri\v
Council Jnlv 20, IHT.i, \j. H. r, V.
V. 277. Tiicrc Sir Monla^ruc E.
Smith, in (Iclivorin;^ the 'illinninfj
judi^uicnt, saiil, alter cilin;^ in I'ull
tlic Edits of 17i;J [srv 1 Code <lt'
III Martinique (1H07), 47-1] and of
17l!) [•<</' 22 Isainhcrt's Ancicnnos
Lois Ernncaiscs, 227)]: "Their
liordsliips, however, cannot con-
sider it to lie their (Inty, at this day,
to construe tlic lan<i;uaf;e of the
edict as alone containing; the law
of (*anaila on the siilijcct of mort-
main, hecauso n Icj^islativt^ declara-
tion of the law is, in their opinion,
contained in the code, which is free
from nmbiffuity." And referring
to Mr. Justice Uad<;ley's opinion :
"These observations on the; de-
claratory force of tlu^ code are
entitled to great weight, from the
fact that lladgley, J., was one of the
judges who, in the case relied on
in- the aiipellants, Nov. 23, 1H57,
Kierzkowski *•. Grand Trunk
Kailway Co., 4 L. C. J. 8(!, e.\-
pressed an opinion that trading
CO. |)oratioiis were f/ens de inain-
iiiorfc. In that ca.se, however, the
railway company hud legislative
power to purchase lands, and the
(piestion arose incidentally in an
action for seignorinl dues. What-
ever may be the worth of the
opinions expressed in that case, the
higher authority of the code must
now prevail. Their Lordships for
these reasons think the Q. B. was
right in holding the appellants
were incapable, without license
of the Crown, which it is not aver-
red tlu^y {)ossessed, to acquire any
title to the lands sold to them by
Foley." [See Mr. Justice Badg-
ley's judgment above.]

See Citizens' Insurance Co. v.
Parsons, in S. C. 21 June 1879, 4
S. C. 215; in P. C. 26 Nov.
1881,7 App. Cas. p. 114; 51 L.
J.P.C. 11; 45L.T.721 ; 30 W.R.
S36f ami post, sub-see. 13.

In Cr.ARKK r. Uncon Fiiii; Tn-
si'HA.NdC Co., Oct, 30, 1883, ll) ().
P. II. 313; amrnied Junel2, IHSI,
0 (). II. 223, llodgins, Q.C., ihe
Master in Ordinary, .said : " This i-
a 'laiin brought in by the Export
LuinVicr Co. of New York, agiiiii^t
the defendants, a fire insurance coiii-
panv incorporated liy tlKiLcgislaliiiv
of Ontario, 39 Vict. c. 93. 'I'lie
]iolicy, diitt^d 5 August 1880, was
delivered to the cluimants on tlic
7th or 8th ; thf fire occurred on the
lOtli of the sf.nie month. On the
lllh the clainiants tendered ii
chcqiu^ for the preuiium, wliieii
was iinnicdiately returned by tliu
dclendants. The principal de-
fences ;i!\, that the dcfendiiiits,
being a irovincial com])any, lunl
only limited power.s, and could not
contract out of this province
(Ontario) ; an<l that the prcuiiiim
not having been paid or tendered
until after the loss occurred, the
policy is void. In arguing that
the contract was ultra vires, it was
contended that ns the B N. A.
Act, sec. 92, sub-sec. 11, eni-
l)owered the provincial legisla-
tures to incorporate coinpiiiiics
with ' provincial objects,' this cor-
poration couhl have no existence,
and therefore no power to contnut,
outside the province ; and in any
event, not having obtained legisla-
tive sanction authorizing it to
make contracts of insurance out-
side the province, this contract was
void. The substantial question is
again.sttho legislative powers of the
provincial legislatures; it was con-
tended that a corporation crejited
by them has not the status imr
capacity to contract outside of
provincial jurisdiction which a
I3ominion corporation [lossesses.
There is no warrant for this con-
tention. There is nothing in the
B. N. A. Act, nor in the classes of
subjects witliin their legislative
authority, which would phice these
legislatures outside the definitions
given by writers on the subject.
* The colonial legislatures, with the

UNA, ACT, «. 92 (11).— TIJE CHOWN AND I'llOV. LKU. 217

ivstrii'fitiiis ii('<'('ssiirily nrisinji; from
thrir (!c))('n{|('iicy on Orciit I5ii-
liiiii, were >(»vt'ii'i;;ii williiii I lie
limits ol' tlu'ir ri's|H'ctiv(' ft'rritdi'ics.'
1 (Stdry's Const., -i Kil., s. 171.
'Tlu; l(';iisliitivo liodics in tlic dc-
lii'iidciicit'N of tlic Ci'own liiuc,
sith moth), the siiini' powers ol'
Ii'l^isljilion IIS tlu'ir i)rotoly|>t' in
Kii;,'iiiii(I, siiliji'ct, liowi'VLT, to tlic
liiiiil iii'ji;ativ(^ ol' I lie sovcrci;;!!.'
1 Hiooiii's Com. Vl[\. 'I'lic term
' liu'(ii|ioriition of coiiiiMiiiii's with
pidviiiciiil olijfcts' in tlic 11. N. A.
Act ik'lincs tiic diis.scs of corpor-
iitimis witliiii tli(^ legislative
iiuliioi'ity of the provinces ; and
its iiicaniiif; must be <;athei'ed
I'idiii iiiiiiloi:;oiis clauses, cmpowcr-
iii<; tlu'in to make laws in relation
to 'local works and niideitakinj;s '
(siili-scc. 10) and ' mattersof a mere-
ly Idciil or private natnri' in tiic pro-
vince' (snb-see. 10), and nndi'r
which it is obvious the legislature
uiiiy incoruonri' companies for like
purposes. '1 ii se references show
tliHt the terms 'proviucial' and
'nicnl' are interchangeable, and
imist be construed to mean ' local
objects' within a province, in eon-
trndistiiiction to objects common
to the several provinces in their
collective or Dominion quality, and
wliicli are within Dominion legisla-
tive jurisdiction. This power to
incorporate companies is incidental
to a .sovereignty, though siidi
power may be delegated. 'Tiie
sovereign, it is said, may grant
to ji .subject the power of erecting
corporations' (Dro. Abr., tit.
'I'rorog'; Viner Prerog. 88, pi.
l(i), but it is really the Crown that
erects, and the subject is but the
iiLstriiuieut.' 1 Bl.' Com., 4 Ed.,
p. 4.i2. Corporations may be
erected by charter or by Act of
Parliament, 'of which the royal
assent is a necessary ingredient.'
/4(V/., p. 151. This assent of the
Crown, as essential to the validity
of the Acts of the provincial legis-
latures, has been questional by the
obiter dicta of some learned judges,
who siiy that Her Majesty forms

no constituent part of the pro- C'i.abkb c.
vinciiil legislatures iis she (bes „f ^nion Piub Ik-

., I, " • ,, I- . '1-1 • BU1U.NCE Co.

the Doiiiiiiion I'lirliament. J Ins
denial of (he legisliiti\e authority
of the Crown in pi'ovincial legis-
lation toiiclies the validity of all
pi()\iiicial Acts since <'onfe(lera-
tion, as the usual form of tiie pro-
vincial statutes is, ' Her Majesty,
by and with tiie advice, &e., enacts.'
' 'i"h(! Icgishitive power,' says Lord
Hale, ' is lodged in the king,
with the assent of the two Houses
ol' I'arliiimcnt.' 1 Hale's Juris.
Hs. liords, t: 'The making of
statutes i(i by tiie king, with the
as.sent of I'arli.iinent.' I White-
hicke, King's Writ, ITdU.-lUG: 'The
king has the prerogiitivi^ of giving
assent to such Hills us hi il)jects,
legally eonvcned, present I > him,
that is of gi\ing ihem the force
and sanction of kiw.' IJacon Abr.,
tit. 'Prerog.' 489; Co. Ii<i. 24.
'I'his is but the con-iyii law on the
legislative [irerogative of the ' '''own.
A reference! to the Imperial Acts

which gavi

legislative institutions
jiroviuee prior to the

to this

B. N. a! Act, will show that the
provincial laws of Upiier Canada
were to be made by ' His Majesty,
his heirs and successor.s,' 31 Geo. 3.
c. 31.; and of Canada by 'Her
Majesty, her heirs or successors,'
3 & 4 Vict. c. 35., by and with the
advice and con.sent of the other
legislative bodies ; and these Im-
perial Acts, in so far as they re-
cognise the k'gislative [)i'erogative
of the Crown in this province,
have not been repealed, but are
substantially continued by see. 129
of the B. N. A. Act. The ques-
tion, however, appears to have been
determined in 1870 l)y the Judicial
Committei' of the P. C. in Theberge
V. Landry, L. K. 2 App. Cas. 102,
108 [see see. 91.], where Lord
Cairns, L.C., referring to an Act
of one of the provincial legislatures
then under review, held that it was
an Act which had liecn assented to
by the Crown, and to which the
Crown was a party. The B. N. A.
Act created two separate and inde-

1 i !

■!!

,;:'iil '

III

■hi

ill

III

248 B.N.A. ACT, 8. 92 (11).— SOVEREIGNTY OP PROV.

OiiARM V. pendent governments, with ennme-

Union Fire In- j-ated and therefore limited [larlia-
SOEAKCB 0. mentary powers. These dual <i;overn-
niLiits, with their defined limits of
3nrisdiction,nowexereisethele<;isla-
tiveandexecutive powers previously
vested in one government ; and
although both exist within the same
territorial limits, their powers are
separate and distinct, and tiiey act
separately and indei)Ciulently of
each other within their resi)ective
spheres. The powers of the legis-
lative department of the provincial
governments have been (Ictiuod by
our provincial courts. Tlie ease i.i
lie Goodhue — Tovev v. Goodhue,
1872, 19 Grant's CIi. U. 306, 452,
decides that there is no limitation
imposed on the provincial legis-
latures as regards the extent to
which they may affect private
rights and matters of a merely local
and private nature in the provinces ;
and as to such objects they can
pass laws to the .same unlimited
extent that the Im|)erial Parlia-
ment mav in the United Kingdom.
In Reg. V. Hodge, 7 O. A. 11. 2 16,
it is stated that the Dominion and
provincial legislatures derive their
powers from the same soiu'ce ; and
that ' the power to make laws in
relation to the several classes of
subjects, legislation upon which is,
by the Imperial Act, committed
exclusively to the provincial legis-
latures, is as large and complete as
it is in the classes of subjects com-
mitted by enumeration of subjects
to the Dominion Parliament. The
limits of the subjects of jurisihction
are prescribed; but within those
limits the authority to legislate is
not limited' (p. 251). [See also
Hodge V. The Queen in P. C, 9
App. Cas. 117, and sub-sec. 13.]
These cases show that both the
Dominion and the provincial legis-
latures have plenary powers of
legislation to the extent necessary
for the efficient exercise of the ex-
clusive legislative authority of each,
and that they therefore are sove-
reignties within the definitions given
in 1 Story's Const, sec. 171. ; Phil-

lips V. Eyre, L. R. 6 Q. B. p. 9.0,
and The Queen v. Burah, 3 Apj),
Cas. p. 901. Each has antlioritv
to create corporations ; and tlicro-
fore a com[)any incorporated by a
provincial legislature has, for tlu'
purpo.se of his business, the same
corporate franchises and powers
within the jurisdiction creating it
as a company incorporated l)y ilio
Imperial or the Dominion Parlia-
ment, and may transact its business
outside the jiroviuce wherever l)v
comity or otherwise its contnicts
are recognised. This povt'er to
transact insurance business out-
side the provincial jurisdiction crea-
ting such corporations is regu-
lated within Canada by the Act
■10 Vict. c. 42. s. 28, which pro-
vides that companies incorporatcii
by a provincial legislature for
carrying on the business of in-
surance within a province, may,
under I'ortain conditions, transact
su(di business throughout the Do-
minion ; and the case of Citizens'
Insurance Co. v. Parsons, 7 App.
Cas. p. 115 [see sub-sec. 13], ilhis-
trates to some extent the jurisdic-
tion of the provincial legislatures
over companies incorporated by the
• Imperial or Dominion Parliaments.
As to the contention, that tlii'se
defendants not having obtained
pc^rniission in their Act of incor-
poration to transact insurance busi-
ness in foreign countries, it may be
answered that no legislature can
confer upon corporations created
by it the right to carry on l.isincss
outside its ^v.-n territory. The
legislative enactments of a country
have no living force propria viyore
in other territorial sovereignties,
Where, however, a legislature as-
sumes to authorize its corporations
to carry on business in foreign
countries, such authority is no
more than a legislative sanction to
an agreement between the corpora-
tors that their business may he
carried on abroad as well as at
home. It has been held in one of
the federal courts of the United
States, that it is not competent for

B.N. A. ACT, s. 92 (11).— LOCAL STREETS.

249

a State legislature to enact that its
citizens shall not make such eon-
tracts as they please in respect to
their business out of the State. Lamb
V. Bowser, 7 Biss. Cir. Ct. 315.
Where thei'c is no express pro-
vision in the charter of a corpora-
tion limiting its ordinary business
to a particular place or territory,
no such limitation can bo implied.
Morawetz on Corp. 502. And
there is nothing in our law whieh
would prevent a cori)oration created
iiore from carrying on business
both at home and abroad iu the
same manner as an individual or a
co-partnership engaged in a similar
enterprise. The contract here sued
upon appears to bo within the eor-
])oratc jjowers of these defen-
dants; and the cases shew that
such a contract would be recog-
nised as valid in a foreign country."

Ekg. v. Moiiu, 8 June 1881,
7 Q. L. R. 183, was a case where
tiie defendant, agent of the Bell
Telephone Co. of Canada, was in-
dicted for illegally erecting three
telegraph poles in Buada Street, a
leading thoroughfare in thi; city of
(iuebeo, thereby obstructing the
Queen's highway. The company
was incorporatod by 43 Vict.
(Dom.) c. G7., with power to estab-
lish telephone lines iu several pro-
vinces of the Dominion, and to

construct, erect, and maintain linos Rr". v. Moiir.
along an}- public highway, street,
bridge, &c., either wholly iu
Canada or dividing Canada from
any other country. It appears the
business of the company with re-
gard to the poles objected to was
of a purely local character, and
confined to the district of Quebec.
It was held that the establishment
of the company was one of purely
local character and intended to
serve local purposes, having no
pretension to connect other pro-
vinces or even to cross rivers, Ac.
That to give tlie Dominion Parlia-
ment the power to authorize the
Bell Telephone Co. to impede cir-
culation and traffic in the streets
of Quebec, one of two conditions
would have been required [per Sir
A. Dorion, C.J.]: "Either the
company should have been incor-
porated for the purpo.so of connect-
ing by telephone lines the province
with any other or others of the pro-
vinces of the Dominion, or of ex-
tending its lines beyond the limits
of the province of Quebec, or it
should have been declared by the
Parliament of Canada to be for the
general advantage of Canada, or for
the advantage of two or more of the
provinces." The judges were Sir
A. Dorion, C. J., and Monk, Ram-
say, Tessier, and Cross, JJ.

(12.) The solemnization of marriage in the province.^

' In Citizens' Insurance Co. v.
Pahsoxs, Nov. 26, 1881, 7 App.
("as. 1)6; 51 L. J. P. C. 11; 45
L. T. 721, and below 4 S. C. R.
215 [see full report, sub-sec. 13,
sec. 02], Sir Montague E. Smith
said : Notwithstanding the " endea-
vour to give pre-eminence to the
Dominion Parliament in cases of a
eonllict of powers, it is obvious that
ill some avses whe/e this apparent
eonliiet exists, the legislature could
not have intended that the powers
exclusively assigned to the pro-

vincial legislatures .should be ab-
sorbed in those given to the
Dominion Parliament. Take as
one instance the subjci t of ' mar-
riage and divorce,' contained in
the enumeration of subjects in
sec. 91 [sub-sec. 26] ; it is evident
that the solemnization of marriage
would come within this general
description, yet ' solemnization of
marriage in the province ' is enu-
merated among the classes of sub-
jects in sec. 92., and no one can
doubt, notwithstanding the general
language of sec. 91, that this sub-

ClTIZENs' In-
SDRANCE Co. t;.

Pabsons.

'!:."ii

li'

250 B.N.A. ACT, s. 92 (12).— PROVINCIAL DIV. COURTS.

i 1

Pivorce " aws. ject is still within the exclusive
authority of the Icj^islnturps of the
provinces."

Although by the terms of sub-
sec. 26, sec. 91, " uiuri'ian;e and
divorce " lies within the jurisdiction
of the Dominion Parliament, four
provinces have still retained their
divorce court as possessed l)y them
before confederation, namely, Nova
Scotia, New Brunswick, Prince
Edward Island, and PritLsh Co-
lumbia. The Dominion Parliament
has jurisdiction in divorce cases
from Ontario and Quebec ; but it
is said to be utterly impo.s.sible to
render justice to the applications
for divorce, because, either from
religious or personal motives, a
majority of the Senate vote against
all applications for divorce, no
matter what the I'vidence is.
There are 39 Protestant and 31
Roman Catholic Senators, it is felt
by some that this injustice unist be
remedied by a Dominion Act deal-
ing wi*]i the matter, and handing
the decision in divorce cases over to
the regular courts.

In Lower Canada and Quebec,
the law of divorce, says Purge,
1 Col. and For. Laws, p. 601, are
governed by the law of France as
it existed before the Re\olutioii,
and on p. 644 he says, " In the
earliest age of the monarchy of
France, divorces a vinculo were
permitted. But that kingdom
adopted the i)revailing opinion of
the Catholic Church that the mar-
riage was indissoluble, and ad-
mitted only a divorce a iiiensu ct
thoro, or, as it is called, la scpara-
tion I'habitaiioii. This species of
divo-ce was granted at the instance
of the wife when the husband had
falsely accused her of a capital
crime, or had treated her cruelly,
not only by offering her personal
violence, or withholding from her
the necessary means of subsistence,
but by habitually treating her
before the visitors of the house, the
domestics, and the children, with
contempt. The wife could not
obtaia a divorce for adultery com-

mitted by the husband, although
the adultery of the wife afforded
a ground on which the husbmul
might obtain a divorce from her.
Thus separation could only \tv
effected by judicial sentence. Tiie
parties could not by any act or
agreement Ix'tween themselves, or
by any admission of the facts
on which the separation could liu
awarded, withdraw from the judge
the lull and entire cognizunce of,
iuid adjudication on, them. Tiie
law of France not only discounte-
nanced frivolous causes of separa-
tion, but endeavoured, by the pro-
cedure to which it subjected tlie
applicatiou for divorce, to prevent
its being obtained by consent or
collusion. Pothier, tit. 'Marriage,'
part 0, c. 2. " Such continueil to
be the law of France until the
Revolution swept it awav," 20
Sept. 1792.

Now, for Quebec, Manitoba, and
the North-West Territories, tlii'
Federal Parliament constitutes a
Court of Divorce, proceedings being
begun in the .Senate. Can. Year
Book, LS94, p. 909.

DivoKCE IN Nova Scotia. — By
Nova Scotia Act, 32 Geo. 2. 1758,
c. 17., the Governor and Council
had the power of dissolving niiir-
riages for adultery, wilful desertion,
and withholding necessary main-
tenance for three years together.

Sec. 7 enacted that no marriage
shall be declared null and Void
except for impotence or of kindred
within the j)rohibited degrees,
32 Hen. 8. c. 38., and that no de-
cree for divorce should be granted
for any other " than the two fore-
going and the two following <:iii^is,
nanudy, that of adultery and that of
wilful desertion, and withhohling
necessary maintenance for three
years together, in any of which
cases every person suing for a di-
vorce, shall be entitled to a decree
for that pui'[)ose, tobeobtainetl from
the Governor or Commander-in-
Chief for the time being, and His
Majesty's Council, who shall Imvc

B,N.A. ACT, 8, 92 (12).— DIVORCE IN NOVA SCOTIA. 251

full power and authority to grant
the same." In the above Act, the
same as in the old Scotch law, Act
1573, c. 55., for divorce for non-
giving adherence, there is no cruelty
specifically mentioned. By Nova
Scotia Act, i Geo. 3. c. 7., which,
after reciting see. 7 of 32 Geo. 2. c.
17„ continued : " which clause has
lieen found to be inconsistent with
the laws of E ngland [.see 6e/o lo ] , be it
therefore enacted by the Honourable
the Commander-in-Chief, the Coun-
cil and Assembly, that the causes
for which marriages shall be de-
clared null and void shall be in all
causes of impotence, of precontract,
and kindred within the degrees
prohibited in an Act made in
32 Hen. 8. c. 38., entituled, an Act
concerning precontracts, and touch-
ing degrees of consanguinity, of
adultery, and of cruelty, and for
none other causes whatsoever."

In a note to Uniacke's Ed. of
the N. S. Statutes at Large, 1805,
p. 69, he says : " By the laws of
England, the causes of divorce,
dissolving the bond of marriage,
are, precontract, impotence, con-
sanguinity, affinity, and causa
metus ante nuptias ; which, being
precedent impediments, the mar-
riage was a nullity and ab initio
void. Adultery and cruelty being
subsequent to the marriage, though
they are proper causes for tempo-
rary separation a mensa et thoro,
yet they do not affect the validity
of the marriage, and consequently
cannot, as in them.selves, dis.solve a
vinculo matrimonii, nor can such
divorce bar the wife of her dower
or bastardi/e the children. The
piincipal ground of amenduunit of
this Act seems to have been the
permission of divorce for wilful
desertion, &c., as not agreeable to
the laws of England, for this cause
is now omitted by the Act, and
all other causes are, as in the former
Act, inserted. By R. S. N. S.
Ost serics)c. 128., the Governor was
to l.Hj President of the Court of Mar-
riage and Divorce, and might ap-
point tiic Chief Justice, the Master

of the Rolls, or any one of the Divorce Laws,
judges of the Supreme Court, to be
Vice-President. The Vice-Presi-
dent was to sit as a member of the
court when the Governor was pre-
sent, and should preside in his
ab.sence. By sec. 4, the court was
to have jurisdiction over all matters
relating to prohibited marriages
and divon'e, and may declare any
marriage null and void for impo-
tence, adultiiry, cruelty, precon-
tract, or kindred, and might, after
sentence, pronoimce such deter-
mination as it thinks fit on the
rights of the parties, or either of
them, to courtesy or dower. By
R. S. N. S. (2nd series), 1864,
c. 128., the Vice-Piesident and any
two members of the Council were
to constitute a court, and the court
miglit grant oWmony pendente lite,
award costs, &c.

By 28 Vict., 1865, N. S., c. 1.
s. 10, the judge inefpiity was to be
the Vice-Piesident, and by 29 Vict.,
1866, N. S., c. 13., the Vice-Prcsi-
dent was to compose the court
under the title of the JudgeOrdinary
of the Court for Divorce and Mat-
rimonial Causes (the new name).
Sec. 6 gave a right of appeal to the
Supreme Court; and the court was
to ha\t; the ,«anu^ powers as i\\v. Di-
vorce and Matrimonial Causes Court
in England — but not so as 'to
abridge any of its powers — as to
alimony, custody, maintenance and
education of children. By this Act
the Governor might appoint a judge
of the Supreme Court to preside.
The largest number of divorces out
of all the provinces are granted by
the Nova Scotia Court. This is
attributed, in the Official Statistical
Year Book, 1891, p. 911, to the
fact that the fees established many
years ago [see R. S. N. S. (4th series)
c. 114.] are so sumll that he poorest
in the land are not prevented from
seeking relief in the courts.

In New Brunswick an Act was
passed in 1787 for regulating nmr-
riage and divorce. By 31 Geo. 3.,
1791, c. 5. s. 5, all causes, suits,
coutroveisies, touching and con-

' 'i

': , 1;

^ yiv^^

I t

Divorce Laws.

252 . B.N.A. ACT, s. 92 (12).— DIVORCE IN N.B. AND P.E.I.

cerning marriage and divorcp, as
well from the bond of matrimony
as divorce and .'icijaration from bod
und board, and alimony were to bo
lieaid before the Govei'nor or
Commander-in-Chief and His 5Ia-
jesty's Coimeil, or any live or more
of the said (.'oiineil. Section 9
enacted that the causes of divorce
from the bond of matrimony, and
dissolving and annulling marriage
are ; — then it set out the causes
given below in P. E. I. Act,
5 Will 4. c. 10. s. 4, but " for
no other causes whatsoever."
IJy 4 Will. 4., 1834, c. 30., a
judge of the Supreme Court was
added. The 6 Will. 4., N. B.,
1836, altered the terms of holding
the court. An Act in 1847 enacted
further regulations of the court.
These were repealed. Ev 23 Viet.,
18G0 (N. B.), c. 37., the Court of
" Divorce and Matrimonial Cau.'^es"
was established. By see. 2, the
Governor in Council was to appoint
one of the judges of the Sujjreme
Court to be judge of the said comt.
By sec. 10, the practice and ])ro-
ceedings of the couit M'cre to be con-
formable as near as may be to the
])ractice of the Ecelesia.stieal Comt
in England prior to Divorce and
Matrimonial Causes Act of 1857,
subject, however, to the ])rovisions
of the Act and the existing rules,
orders, and practice. By sec. 13, a
right of appeal W'as given to the

Supreme Court.

Prince Edward Island,
4. c. 22. established a Court of
Divorce, and contained a clause
rendering null a second marriage
of the guilty part v.

Bv R. S. P. E. I., 5 Will. 4.
(1835) c. 10. s. G., 3 Will. 4. c. 22.
was repealed, and the o Will. 4.
0. 10., which was brought into force
by ])roclamation 7 June, 1830,
provided : " Whereas it is neces-
sary, in order to the kee])ing up of
a decent and regular society, that
the matrimonial union be i)rotected,
and that a court be constituted for
cases of divorce and alimony. Be
it therefore enacted by the Lieu-

tenant-Governor, Council, and A.s-
seiubly, tliat from and after the
publication hereof all causes, suits
controversies, mattci's and (jncs-
tions touching and coneeniiiif
mariiage and contracts of marrinirc
and divorce, as well as from the
bond of matrimony as divorce and
separation from bed and board ami
alimony, shall and may be heard
and determined by and before the
Lieutenant-Governor or other ad-
ministrator of the governinout,
and his Majesty's Council ; and
that the Lieutenant-Governor, or
other administrator of the govein-
ment, and Council aforesaid, or aiiv
live or more of the said Couiii'ii,
with the Lieutenant-Governor or
other administrator as president, lie,
and they are hereby conslittitcd,
a])pointed, and established a court
of judicature in the matters and
premises aforesaid, with full autho-
rity, j)ower, and jurisdiction in the
same." The Act then contained a
])roviso that nothing in the Act
should be construed to control the
I'ights of any otlier court, and that
no sentence of the court or Lieu-
tenant-Governor and Council wa.s
to affect the right of action of any
person for injury by reason of any
breach of covenant or contract of
marriage.

By sec. 2, the said court shall
commence and be held on the se-
cond Monday in May in each and
every year, with power to adjourn,
3 Will. Bv see. 3, the Lieutenant-Governor,

or other administrator of the island,
may appoint the Lord Chief Justice
of the Supreme Court of Judicatnre
to preside in his stead, and exer-
cise all powers hereby given to
Lieutenant-Governor. Sec. 4 set
out the causes of divorce from the
bond of matrimony and of dis-
solving and anmdling marriage as
" Frigidity or impotence, adultery,
and consanguinity within the de-
grees ])rohibited,"andby 32 Henry
8. c. 38. s. 5, provided that in case
of divorce the issue of the marriage
should not be bastardized nor the
wife barred of dower, nor the bus-

"-in

B.N.A. ACT, s. 92 (12).— MARRIAGE LICENSES. 253

band deprived of any tenancy by
tilt' courtesy of England, iinloss it
shall lie so expressed or adjudged
l)v t\u' sentt'Hce.

For twenty-six years no divorce
liiis been granted in Prince Eilward
Island.

I3v ordinance passed in 1807,
alter tlic union of Vancouver to the
miiinland, British Columbia exer-
cised the power of granting divorces,
C. Stat., Year B., 187-i, p. 909. By
ordiiiiuice dated 19 Nov. 1HG8, it
was enacted that all the civil and
ei'iniinal laws in England, as they
existed at that date, should be in
force in all parts of British Co-
lumbia. Twenty-six divorces have
been granted since 1868 by the
court in British Columbia.

In the United States, formerly it
was the practice for the various
legislatures, like the Engli.sh Parlia-
ment, to grant divorces by special
Act. Generally at the j)resent
time the jurisdiction to grant di-
vorces is conferred by statute on
the courts of equity, or courts pos-
sessing equity powers, subjei.'t to
such modification as the particular
statute may direct. [1 Bouvier'.s
Law, 193.]

In Stevens v. Fish, 12 Jan.
1885 [Cashel's Dig. S. C. i{.
237 ; 8 L. News, 42, 53], an ap-
peal from Q. B. Quebec, 19 Sept.
1883 [6 L. News, 329], which
reversed a judgment of the Superior
Court, Quebec, 25 Feb. 1882
[') L. News, 79], it was held
that a decree of tlivorce ol)taiued
IVoni tlie Supreme Court at New
York was valid, the evidence
establishing that the plaintiff had
had a suflicient residence in New
York to enable her to obtain a
valid divorce there. It appeared
that the marriage was in New
York, 1871, both parties being
domiciled there ; that in 1873 the
husband removed to Montreal,
taking with him, jt Avas alleged,
his wife's property. In 1880 the
plaintiff, the wife, obtained a
divorce in New York, and in 1881

raised tbi= .iction in the Sujierior Divorce Laws.

Court, at Montreal, to obtain an

account from her husband, the

defendant. IJefendant alleged the

piaintifl' was still his wife, 'i'his

plea was overruled by the Siqxirior

Court, but an .Mppeal was allowed

by the Court of Queen's Bench.

On appeal to tlie Supreme Court,

llitehie, C. J ., Fournier, Henry, and

Gwyune, .1.1., allowed the appeal;

Strong, J., dis.sented, being of

opinion the divorce was invalid.

Ritchie, C. J., said : The evi-
dence established that the plaintiff
had a suflicienr residence in New
York to enable her to obtain under
the law of New York a valid
divorc(! there, and that she did, in
at^cordanee with the law of the
State of N(!W York, without fraud
or collusion, obtain such a divorce
fronr a court competent to pro-
nounce it. That if the question
of jurisdiction turns on the question
of the husband's domicile, the
burden was on the hu.sband of
showing that he had actually
changed his domicile animo ct de
facto. Having been cited before
the Court of New York, and having
appeared in the suit and submitted
to, and not disputed, the jurisdic- Stevens v.
tion of the Court, the legitiuuite Fisii.
presumption against him was that
he had not changed his domi-
cile.

Doubts were raised in 18G9 as
to the validity of an Act, 31 Vict,
c. 2., of the province o£ Nova
Scotia to amend II. S. N. S. c. 120.,
the solemnization of marriage and
the registration of marriages, &e.
It provided that the licenses men-
tioned in s. 5 of c. 28. of the Acts
of 1806 should not be deposited
with the chairman of tlu; Board of
Statutes, for distribution, but that
the same should be distributed by
the provincial secretary. The
Minister of .Justice was of opinion
the Act was objectioual, as the
power of issuing marriage licenses,
he claimed, was in the Governor-
General as Ordinary, and under the
powers given him by hia coinmls-

254 BN.A. ACT, s. 92 (12).— GOVERNORS' COMMISSIONS.

i ^

9''-"

Divorce Laws, sion, but ns it was a question
which might iiffcet tho validity of
marriages, he proposed to submit
it to the Secretary of State for the
Colonies for the o[)inion of Her
Majesty's Law Oilicers. Prov.
Leg., IHHf), p. 336.

Shortly afterwards the Now
Brunswick Legislature pas.sed, in
1H70, the 33 Vict. c. 03., providing
for the issue of marriage licen.ses by
the Lieutenant-fTOvernor of that
province ; and the (jucstion whether
the authority to grant marriage
licen.ses veste<l in the Oovcu'iior-
General of Canada, with the power
of legislating on that subject in
the Parliament of Canada, was
raised. On 29 Nov. 1869 Sir J.
Macdonald, Minister of Justice, re-
ported : —

"A Bill relating to Marriage
Licenses (c. 93 of Acts of 1870),
was passed by the Legislative
Council and Assembly of the pro-
vinc(^ of New Bnniswick during its
last session, and reserved by the
Lieutenant -tTOvernor for your
Excellency's assent. The Act is
as follows : —

" ' Be it enacted by the Lieu-
tenant-Governor, Legislative Coun-
cil and Assembly, as follows : —

"'1. Tiiat all marriage licenses
issued and signed by any Lieu-
tenant-Governor or administrator
of the "government of this pro-
vince since 1st May 1854, by
virtue of his office, and all marriage
licenses signed by any Deputy-
Governor since 1st July 1867,
shall be deemed as valid and effec-
tual as though he had been
specially authorized by Act of the
legislature of this province to sign
the same.

"'2. That from and after the
passing of this Act, all marriage
licenses shall be issued from the
office of the provincial secretary,
under the hand and seal of the
Lieutenant-Governor, or of the
person administering the govern-
ment of this province for the time
being.' This Bill raises the question
which has been already mooted in

the other provinces of the Do-
minion, as to where the autlioritv
to issue marriage licenses since the

B. N. A. Act came into force, rests.
Up to that time the power was
vested in the Governors of tlio
several provinces, as ordinary. (See
Stokes on Colonies, pp. 149 and
184.) Express power to issue mar-
riage licenses seems to ha\(' boon
given in every commission of every
Governor-General of Canada, or in
the instructions accompanying such
commission. In the instructions
addressed to the Hon. James
Murray, as Captain-General and
Go\ernor-in-Chief of the pro\ inco
of Quebec, dated 7th December,
1763 (the first Governor after th^
conquest), it is pro\ided, in the
27th paragraph, as follows : —

" ' And, to the end that the ex-
clusive jurisdiction of the Lord
Bishop of London may take place
in our province, mider your Govern-
ment, as far as conveniently may
be, we do thi k fit that you do
give all counte; ance and encourage-
ment to the exercise of the same,
excepting only the collating to
benefices, granting licenses for mar-
riage, and probate of wills, which
we have reserved to our Governor
and our Commander-in-Chief of our
said provmce for the time being.'
All subsequent commissions or
instructions seem to contain the
same power.

" By the Marriage Act in Upper
Canada, C. S. of U. C, c. 72, it
is enacted that no clergyman shall
celebrate marriage unless duly
authorized so to do by licen.se under
the hand and seal of the Governor,
or by the publicatiot) of banns.

"In Lower Cu p • uo oxpress
power was give.-' . ■ .■ Governor
by statute, bu^ i' ..^ .ct relating
to the regisir.jti' I iUB.rriages,

C. S. L. C, c. 20, \s provided
that ' in the entry of a marriage in
the registry, it shall, among other
things, be specified whether the
parties were married after the pub-
lication of banns, or by dispensation
or license.'

':!!

B.X.A. ACT, s. 92 (12).— SOLEMNIZATION ofMAT^RIAGE. 255

"In the E. S. of N. S,, c. 120,
it is |iro\i(l('(l llmt ' no )M'rs(m sliiill
(illiciiitc in the solemnization of
mnn'iiij;p unless on public notice or
on license, itnd that the Governor
iiiav, from time to time, si^n and
sciii niaiTiMf^c licenses and deposit
tlie same with the provincial seere-
tiirv, itc'

"In theK. S. of N. B., c. lOG,
it is pi'ovidcd that ' Christian minis-
ters niav solcnniize mnri-iajje i)_v
license or by publication of banns,
iinil the (lovernor in Council may
iippoint persons in every county to
issnp niari'iajre licenses.'

" The undersigned is of opinion
tliiit none of these statutes can be
lii'id as conferrin<; any new power
npon the Governors ; but that niar-
uiiU'iagc licenses were issued by
them by virtue of their commissions
and as ordinary, havinpf jurisdiction
as such directly for the Crown. By
tlie B, \. A. Act, exclusive powers
(if legislation as to ' marriajjc nnd
divorce ' is given to tiie Parlia-
ment of tlie Dominion by sec. 91,
paiajjraph 2G ; and by sec. 92,
paragraph 12, the legislatures of
the provinces have exclusive powers
iif legislation respecting the '.solem-
nization of marriage.'

"The conuuission of Lord
Mnnek, the lir.st Governor-General
iif the Dotninion, in its 7th para-
firaph, empowers him to exercise
all sncdi jiower us tlie Queen may
he entitled to exercise M'ithin the
Dnrainion, in respect of granting
licenses for marriages, &Q., and the
same power is contained in the
commission to your Excellency.

" Two questions now arise,
viz. : —

"1. Whether the authority to
issue marriage licenses is vested in
yonr Excellency as Governor-
General, under Her Majesty's com-
mission, or in the Lieutenant-
Governors of the several provinct!s.

"2. Whether the power of legis-
lation respecting the publication of
hauns, or the issue of licenses, rests
with the general or local legis-
tures.

" As to the first point, the under- Divorce Lnw.s,
signed is of opinion that tlu! power
rests with the Governor -General,
under his commission, and not
Avith the Lieutenant-Governors.
They do not hold their appoint-
ment directly from the (Jueen, but
are apjiointed by the Governor-
General in Council pursuant to the
58th section of the Act. I'heir
j)owcrs are simply those conferred
u[ion them by the statute, and they
have no right to deal with matters
of prerogative as representatives of
the Sovereign.

" The .second question, as to
where the powtT of legislation on
tlie .subject rests, has excited much
interest in Canada, and conflicting
opinions exist with respect to it.

" The power given to the local
legislature to legislate on the solem-
nization of marriage was, it is
understood, inserted in the Act at
the instance of the rcpresentati\es
of Lower Canada, who, as lloman
Catholics, (h'sired to guard against
the passage of an Act legalizing
civil ii rriages without the inter-
vention of a clergyman, and the
pei'formance of the religious rite.
They therefore desire<l that the
legislature of each province should
deal with this portion of tlie law of
marriage. The Act must, how-
ever, of course, be construed accord-
ing to its terms, and not according
to the assumed intention of its
framers.

" The undersigned is of opinion
that the right to legislate respect-
ing the authority to marry, whether
by publication of banns, by license
or by ejiiscopal dispensation, is part
of the general law of marriage, re-
specting which the Parliament of
Canada has exclu.sive jurisdiction.

"The publication of banns or
the license (as the case may be) is
no part of the solemnization, it is
merely the authority to solemnize.
The solemnization is not com-
menced by the issue of the license
or the publication of the banns ; all
the English Marriage Acts treat
the authority, and the solemniza-

256

B.N.A. ACT, s. 92 (12).— MARRIAGE ACTS.

!'?

Divorce Laws, tion under the authority, ns quite
different matters. Thus, it is pro-
vided in the 4 Geo. 1. c. 7(5. ss, 0 and
19, that, ' whenever a uiarriii<^e shall
not he had within three niontlis
al'ter the complete i)ul)lieatiou of
hanns, or the {granting of licen.sc,
no minister shall j)rocced to the
solemnization of sueh marriage
until a new license shall have heen
ohtained, or a new publieation of
banns had,' and by the 21st sec-
tion, the solemnization of marriage,
without due publication of banns or
license of marriage, is made a
felony.

" In order to convict a person
under this clause, it must be alleged
and proved that the solemnization
was not only ct)mmenced but com-
jdeted ; and if the license or banns
were a necessary poi'tion of the
solemnization, the offence would
never be completed without them.
The subsequent Marriage Acts
seem to draw the same distinction
between the authority and the
solemnization.

" The undersigned is, therefore,
of opinion that this resca'ved Act is
beyond the jurisdiction of the local
legislature, and should not receive
the assent of your Excellency."

The matter was referred to the
Secreta/v of State for the Colonies.
On 15 Jan. 1870, Earl Granville
wrote : —

" The Law Officers arc disposed
to concur with the Minister in his
view of the first question stated by
him, but they are unable to concur
in his opinion that the authority to
grant marriage licenses is now
vested in the Governor-General of
Canada, and that the power of
legislating on the subject of mar-
AsTiLL V. riage licenses is solely in the Parlia-

Hall^b. ment of the Dominion.

"It appears to them that the
power of legislating upon this sub-
ject is conferred on the provincial
legislatures by 30 & 31 Vict. c. 3.
[B. N. A. Act], sec. 92, under
the words 'the solemnization of
marriage in the province ' ; the
phrase 'the laws respecting the

solemnization of marriages in Eiic
land ' occurs in the preamble of
the Marriage Act (4 Goo. l.
c. 70.), an Act which is very lurgcly
concerned with matters rcliitini; to
banns and licenses, and this is
therefore, a strong authority to
show that the sami.' words used in
the British North Amcricii Act,
1867, were intended to have tiic
same meaning; 'marriage iiiul
divorce," which, by the 91st sw-
tion of the same Act, are rescrvfd
to the Parliament of the Dominion,
signify, in their opinion, all matters
relating to the status of marriii(;c
between what persons, and under
what circumstances it shall be
created and (if at all) destroyed.
There are many reasons of con-
venience and sense why one law as
to the status of marriage should
exist throughout the ])oniinion,
which have no application as re-
gfU'ds the uniformity of the pro-
cedure, whereby that status is
created or evidenced.

" Convenience, indeed, and rea-
son would seem alike in favour of
a difference of procedure being
allowable in proviuces differing so
widely in external and internal cir-
cumstances as those of which the
Dominion is composed, and of per-
mitting the provinces to settle their
own i)roce(lure for themselves, and
they are of ojjinion that this uer-
mission has been granted to the
provinces by the Imperial Parlia-
ment, and that the New Briuis-
wick Legislature was competent to
pass the Bill in question."

The Governor-General's assent
to the Bill was given 12 April
1870. [Prov. Leg., 188G, p.
44G.]

In AsTiLL AND Husband v.
Hallee, 31 Dec. 1877, Q.B. Que-
bec [Meredith, O.J., Casault and
Caron, JJ.], 4 Q. L. R. 120, it was
held, reversing Stuart, J. (Sup. C),
per Meredith, C. J., that " according
to the well-established jurispru-
dence of the Parliament of Paris,
for more than two centuries before

B.If.A. ACT, s. 92 (13).— PARAMOUNT AUTHORITY. 257

tlmt tribunal was abolished, a com-
munity of propprty was held not
to exist between persons, who,
having been domiciled and having
nmrried withont contract, in a place
where tlie law of commnnity di<l
not exist, afterwards established
their domicile and acquired pro-
pprty in a county where the law of
community did exist"; and "that
necording to the same jurispru-
dence, tlie law of the community
was considered rather as a statut
prrsnnnrl than as a stnltit r^el."
"That tiie same jurisprudence has
inviuiiibiy been observed by the
eourt of this province." With
ri'spcc; to the evidence of domi-
cih' at the date of marriage, see
MeMullen v. Wadsworth, 2 Mon.
Q. 13. 113; 12 S. C. R. 466; in

P. C. July 27, 1889, 14 App. Cas. Divorce Laws.
6.31 ; 59 L. J. P. C. 7; Wheeler's
P. C Law, 087. See also Laramee
V. Evans, 21 Dec. 1H81 (Jette, J.),
25 L. C. .]. 201. As regards French
law in Quei)ec, it may l)e noted that
Symes v. Cuvillier, in (^. B. Quebec,
22 June 187H ; in P. C. (atlirm-
ing), 25 Feb. 1880; Wheeler's
P. (.'. Law, 107; 5 App. Cas. 138;
49 L. J. P. C. 54 ; 42 L. T. 198,
decided that the o! ! law of France
of Louis 14th, 1663, partly adopted
to the effect that a gift before mar-
riage was not revocable by the
donor on the Iwith of children, was
the law of Quebec, the Frencli or-
dinance of 1731 revolting the gift
on the birth of children never
having been registered in Canathi.

\ I

(13.) Property aii'^^. civil rights in the province.^

1 In Citizens' Insurance Co.
OF Canada v. Parsons [see
beloic], the question arose as to
tlic validhy of the Ontario Act,
3i) Vict. c. 24., an Act to secun?
unifonn conditions in policies
of fire insurance, and whether
it was in excess of the provincial
legislative jjower. It prescribed
certain conditions which were as
against the insurers to form part
of every policy of lire ins>irance
entered into or in force in On-
tario, wlietlier the companies wei-e
foreign or colonial. There already
existed a Dominion Act, 38 Vict,
e. 20., requiring all insurance
companies to ol)tain a license.
The Ontario Act was held valid.

Sir Montague E. Smith, in de-
livering judgment, .said : " It is
enongh for the decision of the pre-
sent case to say that the Dominion
Parliament's authority to legislate
for the 'regulation of traile and
commerce' does not comi)rehend
the power to regulate by legislation
the contracts of a particular busi-
ness or trade, such as the business
of fire insurance in p. single pro-
vince; and, therefore, that its

S 2340.

legislative authority does not in Citizens' In-
the present case conflict or com- scbance Co. op
pete with the power over ])roperty ^fJL'^"^ ' " '
and civil rights assigned to the
Legislature of Ontario by sTib-sec.
3, sec. 92."

SONS.

Loi'd AVatson, in
judgment in Tennant v. Union
Bank of Canada, in Ct. App.
Ontario, Jan. 8, 1892, 19 O. A. R.
1; in P. C. Dec. 9, 1893, P. C.
[1891] A. C. 31, p. 45; 63 L. J.
P. C. 25 ; 69 L. T. 25 [see full
report below], said : " Section 91
expressly declares that, ' notwith-
standing anything in this Act,' the
exclusive legislative authority of
the Parliament of Canada shall
extend to all matters coming
within the ennnierated classes;
which plainly indicates that the
legislation of that Parliamcuit, so
long as it strictly relates to these
matters, is to be of jjaramoHnt
aiithoriti/. For example, among
the enumerated classes of subjects
in section 91 are, ' Patents of in-
vention and discovery,' and ' Copy-
rights.' It would be practically
impossible for the Dominion Par-

delivering Tennant v.
Union Bank
OP Canada.

258 B.N.A. ACT, s. 92 (13).— DOM. Si CIVTL TUaHTS

Tbnnant v.
Union Bank
OF Canada,

Citizens' In-

fcURANCE Co, OF
C.VNADAli.TAB-

sors, &c.

Col. Building
AND Investment
Asso, V. Att.-
Oen. op
Quebec,

liainont to Icjjtisl.'itc iijioii citlicr ol'
tlii'so siilijt't't.s witlidiit aiT('Ctiiij4
the ])r(>|icrty iiiiil civil rifilits of iii-
(lividiinls in tlu; provinces." ,SVi'
also C'nsliinfj r. Oiipnv, in (}. H.
QnclM'c, 22 March 1H7'h, 22 L. V.
J. 201 ; in P. V. April lo, IHSO,
5 A))]), ("as. -100; 10 L. J. P. (\ <i:{ ;
42 L. T. 115. [Sec avtr, p. HO.]
Where there is no lej^islation of
the Dominion Parliament in exist-
ence, an Act of the provincial
le<j;islatnre dealing with the sub-
ject, which follows the old law of
Canada nnd England, is not im-
peachable as being ultra vires of
section 91. Sec Att.-Gcn. of On-
tario V. Att,-Gen. of Dominion of
Canada, in Ct. App. Out. 9 May
1H93, under the name In re As-
signments, 20 O. A. 11. 1H9; in
P.C.Feb. 21, [189-11 A. C. 189;
63 L. J. P. C. 59; 70 L. T.
538. {See full report below.]

Colonial liciLDiNc. and In-
vestment Assocr.\Ti()N V. Att.-
Gen. or Qi'EBEC, in C^. 13. Quebec,
24 Marcli 1S82, 27 L. V. J. 29.-) ;
in P. C. Dec. 1, ISS;}, 9 A].p. ('as.
157 ; 53 L. J. P. C. 27 ; 49 L. T. 7S9
\_see sub-sec. 11, .sec. 92], decided
that if an Act of the Dominion
gives a company [jower to deal in
land all over the Dominion, that
capacity given only enables it to
acquire" and hold land and build-
ings in any province consistently
with the laws of that province
relating to the acquisition and
tenure of land. But, when the
allegation is made that such an in-
corporated company has violated
the law of a particular pr()\ince,
the petition must strike at that
alleged wrong, and proceedings
founded on that alleged wrong
must show the scope and effect of
the laws of the province : If the
Crown's consent is required, that
fact and the nature and sufficiency
of the evidence of it; the conse-
quence of a violation of the pro-
vincial laws, and the proper parties
to take mlvantage of it. So, also,
if the allegation is that the Domi-

nion Incorporated ("oin]i:my \iii.
lutes Imilding Acts of tiie proxiiicc,

the .\cts of the urovilicc iM"i;ll'dili;;

building societies must In," cleiiriv
shown. I 0 App. Cas. at p. ()7.]

The Citizens' iNsuii.vNCK Co.
OK Canao.v v. Pa.i<s()ns, and Tin:

(^IKKN iNSfltANCE ( 'o. V . I'.Mi-

soNs. In tlie Supremo Court of
Canada, 21 .luiie ISSO, 1 S. C. li.
215 [Uitchie, C.J., Strong, Foin'-
nier, Henry, JJ.; Taschereau :iiiii
(rwynne, JJ., dissenting], ailinii-
ing Moss, C..1.A., Burton nnd
Paterson, JJ.A., in Frey v. Mu-
tual Fire Insurance, 4 O. A. H.
293, which was anirmed Q. B„ 1,3
U. C. Q. B. 102; and Ulricli v.
National Insurance Co., 42 I^. C.
(^.B. 141; in P. C. 20 Nov. 1S81,
7 App. Cas.9G;51 L.J. P. C. 11;
45 L. T. 721. Sir Montague E.
Smith delivered the following
jndgnunt [there being also pro-
sent Sir Bariu's Peacock, Sir
l^)bert P. Collier, Sir iJiclimd
Couch, Sir Arthur llobiiousc] ;
" The (piestious in these appi'iils
aiise in two actions brought hy
tiu' same plaintiff (the respondent)
upon contracts of insin'anceagainvt
lire of buildings situate in the pm-
viiice of Ontario, in the Doiuinioii
of Canada.

" The most important question
in both appeals is one of those,
already numerous, which Imvo
arisen ui>on the provisions of The
British North America Act, 1807,
relating to the distribution of
legislative powers between tlip
Parliament of Canada and tlio
legislatures of the provinces, ami,
owing to the very general language
in which some of those jiowers
are described, the question is one
of considerable difficidty. Their
Lordships propose to deal with it
before approaching the facts on
which the particular questions in
the actions depend. It will only
be necessary to premise that
' The Citizens' Insurance ('ompnny
of Canada,' the defendants in
the first action, were originally

'-^

TJ.X.A. ACT, s. 02 (13).— FIRE INSURANCE TOYS. 259

iiii'i

niiioDitf'd liy nil Act of tlic Into
piovince of Ciinudii, 11) & 20 Vit-t.
c. 124., 1»y tin; nanm dI' ' Tlio
C'aniiilii Marine Insuraiico Com-
pany.' Bv anotlier Act of the late
province, 27 & 28 Viet. e. 98.,
fiirtlicf powers, includinji tin; power
of effecting eontraets of insurance
iicrninst lire, were conferred on the
company, and its name eiiiinj;ed to
'Tiic Citizens' Insurance and In-
vestment Company ' ; and, finally,
l)y mi Act of the Dominion Par-
liament, its name was again
eiianged to the present title, and
it was enacted, that, by its new
mime, it should enjoy all the
franeliises, privileges, and I'ights,
mill be subject to all the lia-
bilities of the company under its
former name.

" The Queen Insurance com-
pany is ar English fire and life
iusurance company incorporated
under the provisions of the Joint
Stock Companies Act of the Im-
perial Parliament, 7 & 8 Vict. c.
110. It has its princijial ollice in
England, and carries on business
in Canada.

" The defendant company iu
caeh of the actions is the ap-
pellant.

" The statute impeached by the
appellants, as being an excess of
legislative power, is an Act of the
legislature of the province of
Outnrio (39 Vict. c. 21.), intituled
'All Act to secure uniform Con-
ditions in Policies of Fire In-
surance.'

" The preamble of the Act is as
follows : —

" ' Whereas under the provisions
of an Act passed in the 38th year
of the reign of Her Majesty, in-
tituled ' An Act to amend the Laws
relating to Fire Insurances,' the
Lieutenant-Governor issued a coin-
luission to certain commissioners
therein named, requiring them to
consider and report what conditions
are just and reasonable conditions
to be inserted in fire insurance
policies on real or personal property
in this province : And whereas a

Canada v. I'An-

SONS, &C,

majority of (he said commissioners Citizkkb' !»-
have, in pursuance of tiie re(piiro- s»"'An<'K <'"• op
nicnts of tlu! said Act, settled and
ajiproved of the conditions set
forth in the .schedule to this Act ;
and it is advisable that the same
should be expressly adopted by
the legi.slature as the statutory con-
ditions to be contained in policies
of fire insurance entered into or in
force in this jirovince : '

" It enacts as follows : —

" ' 1, The conditions set foith in
the scli.Hlule to this Act shall, as
against ti ■ insurers, be deemed to
be pari '^f every policy of lli'e
insurance hereafter entered into, or
rcnev'.'d, or otherwise in force in
Ontario, with respect to any pro-
perty therein, and shall lie printed
on every such policy with the
heading ' Statutory Conditions,'
and if a company (or other insurer)
desire to vary the said conditions,
or to omit any of them or to add
new conditions, there shall be
added in conspicuous type, and in
ink of different colour, words to
the following effect : —

Variations in Conditions.

" ' This policy is issued on the
above statutory conditions, with
the following variations and ad-
ditions : —

" ' These variations {or as the
case may he) are, by virtue of the
Ontario statute in that behalf, in
force so far as, by the court or
judge before whom a question is
tried relating thereto, they shall be
held to be just and reasonable to
be exacted by the company.

'"2. Unless the same is dis-
tiuctly indicated and set forth in
the manner or to the effect afore-
said, no such variation, addition,
or omission shall be legal and
binding on the insured : and no
question shall be considered as to
whether any such variation, ad-
dition, or omission is, under the
circumstances, just and reasonable,
and on the contrary the policy
shall, as against the insurers, be
subject to the statutory conditions

R 2

■i.i , \\

r ij
If
it

260 B.N. A. ACT, b. 92 (13).— "GOOD GOVERNMENT OP."

CiTizKNs' In- only, unlesH the vnriationR, ad-

BUHANCB Co,

Canada i

BUN8, &C,

^i'

,, °' (lilions, or omiK.sionH luc (Imtiiictly
Canada «. Pah- • ■■ . ■ i » r .i • .i
iiKlicatcd iiiitl set tortli in tlu>

ninniifr or to tlic t'ITc<'t iifon'saiil.

''','}. A (l('fi>ion of ii court or
jiulfjo nndor tlii.s Act .slmll lio
s' ' ject to rovicw or appeal to tlio
n<i..io extent as a deci.sioii by siieli
court or judge in other ease.s.'

"The .Mcliedule contniiiH twenty-
ono conditions under the head
'Statutory C^onditions.' The fol-
lowing of them are nuiterial to the
piirticuiiii ouestions to be decided
in the ap|ieals : —

" ' Auer application for in-
8r, ranee, it shall be deemed that
an/ jjolicy .sent to the assured is
intended to he in aecordanct^ with
the terms of the aj)plieation, unless
the company .shall, in writing,
[)oint out the particulars wheiein
the policy differs from the appli-
cation.'

" ' 8. The company is not liable
for lo.ss if there is any i^'ior in-
surance in any other company,
unless the company's assent thereto
appears therein, or is endorsed
thereon, nor if any sub.se(pient in-
surance is effected in any other
company, unless and until the
company assent thereto by writ-
ing, signed by a duly authorized
agent.'

" ' In the event of any other
in,snranco on the property herein
described having been as.sented to
as aforesaid, then this company
shall, if such other insurance re-
main in force, on the happening of
any loss or damage, oidy be liable
for the payment of a rateable pro-
portion of such loss or damage
without reference to the dates of
the different policies.'

" ' 10. The company is not
liable for the losses following, that
is to say, among others : —

" ' {(f) The company is not
liable for loss or damage occurring
while petroleum,' and various other
enumerated substances, 'or more
than 25 pounds' weight of gun-
powder, are stored or kept in the
building insured, or containing the

projiorty insured, unless permission
is given in writing by the eom-

" 'I'he distribution of legislntive
powers is providetl for bv sections
01 to 05 of 'The IJrilish North
America Act, 1H07 ' ; the most
important of these l)eing .section
Ol, headed 'Powers of the Parlia-
ment,' and section 02, headed
' Exclusive Powers of Provincial
Legislatiu'cs.'

" Section 01 is as follows : —

" ' It shall be lawful for tlio
Queen, by and with the advice and
consent of the Senate and House
of Commons, to make laws for th(^
peace, order, and good governinent
of Canada in relation to all matters
not coming within tlie classes of
subjects by this Act assigned ex-
clusively to the legislatures of the
provinces; and for greater cer-
tainty, but not 80 as to restrict the
terms of this section, it is hereby
declared that (notwithstanding any-
thing in this Act) the exclusive
legislative authority of the Parlia-
ment of Canada extends to all
matters coming within the classes
of subjects next hereinafter enu-
merateil, that is to say, — '

"Then follows an enumeration
of 29 classes of subjects.

" The section concludes as fol-
lows : —

" ' And any matter coming with-
in any of the classes of subjects
enumerated in this .section shall
not be deemed to come within the
clas.s of matters of a local or pri-
vate nature comprised in the
enumeration of the classes of sub-
jects by this Act assigned exclu-
sively to the legislatures of the
provinces.'

" Section 92 is as follows : —

" * In each province the legisla-
ture may exclusively make laws in
relation to matters coming within
the classes of subjects next herein-
after enumerated, that is to say, — '

" Then follows an enumeration
of 16 classes of subjects.

" The scheme of this legislation,
as expressed in the first branch of

jj iiik.rfk.

-ii-x'winn*;*gw«HwaHWtw'i*«^'''''^^-*

BJf.A. ACT, 8. 02 (13).— PUK-EMTNENCE ok DOM. PAR 201

section 01, is to j;ivc to tln' I)n-
Miinioii i'ai'liainciit luiliiority to
make laws for tlui f^ood jjiivcrti-
niciit ol' ('iiiiiula ill all iiiatti'ts not
(■(jiiiiiij; within tlir classes oi' siil)-
jccls assi^^nt'd exclusively to the
|ii'()\iiiciul Icf^ishitiirc. If tiic i)lst
section IlcuI slopped here, and if
till' classes of siil>je(,'ts eniiinerated
ill si'ction U'2 had liceii altoj;L'tlier
(lisliiict and dill'ereiit front tlioso in
section 01, no conflict of Icfjisla-
tive anthority coidd liave arisen.
Tlic provincial legislatures would
have had exclusive lej^isliitive [)ower
over the 10 classes of suhjects as-
sii;iied to them, and the lioniinion
I'ariianient exclusive power over
all other matters relatin<>; to the
o;o(i(l jjovernmcnt of Canada. Hut
it must have lieen foreseen that this
siiar|) and deliiiite distinction had
not hceu and could not bo attained,
ami that some of the das.so.s of
siilijects assigned to the provincial
legislatures unavoidably rail into
and were embraced by some of the
I'liiiiiierated classes of subjects iu
section 91 ; hence an endeavour
appears to have been made to pro-
vide for cases of apparent conflict ;
and it would seem that with this
object it was declared in the .second
liranch of the 01st section, 'for
greater certainty, but not so as to
restrict the generality of the fore-
going terms of this section,' that
(notwithstanding anything in the
Act), the exclusive^ legislative au-
tbnrity of the Parliament of Canada
should extend to all matters coming
within the classes of subjects enu-
merated in that section. With the
same object, apparently, the j)ara-
graph at the end of section 01 was
introduced, though it may be ob-
.served that this paragraph applies
in its grammatical construction
only to No. 16 of section 92.

" Notwithstanding this endea-
vour to give pre-eminence to the
Dominion Parliament in cases of a
conflict of powers, it is obvious that
iu some cases where this apparent
conflict exists, the legislature could
not have intended that the powers

excliisivelv assigned to the provin- fiTizRNH' In-
cial legislature should be absorbed hcha.sck (',.. mp
111 those given to the Doliiinioll j^^j^j, ^p
I'Mi'liameiit. Take as one instiiiiec
the •^iibjecl ' marriage and divorce,'
contained in the eiiiiiucration ol
subjects in see. 91 ; it is evident
that soleiiiniy;ation of niarriago
would come within this general
description; yet ' solciiiniziilion of
marriage in the province' is eiiii- ,
iiierated among the class(>s of sub-
jects in sec. 02, and no one can
doubt, notwithstanding the general
languag(( of .sec. 01, that tiiis sub-
ject is still within the exclusive
authority of'tlie legislatures of the
provinces. So ' the raising of money
l»y any mode or .system of t4ixation '
is eniinicrat'j'd among the classt>s of
sul»jtM'ts in sec. 01 ; but, though
the de.scripti(jn is siiniciently larg(!
and general to imdude ' direct taxa-
tion within the i)rovince, in order
to the raising of a revenue for pro-
vincial purposes,' assigned to tlM
provincial legislatures by sec. 02,
it obviously could not have been
intended that, in this instance also,
the general ]iowcr should override
the particular one. With regard
to certain tdasses of subjects, there-
fore, geneially described in sec. 01,
legislative power may reside as to

solium matters falling within the

general description of these sub-
jects in the legislatures of the pro-
vinces. Ill these cases it is the

duty of the Courts, however dilli-

cult it may be, to ascertain in what

degre(>, and to what extent, autho-
rity to deal with matters falling

within these classes of subjects

exists in each legislature, and to

define in the particular case before

them the limits of their respective

powers. It could not have been

the intention that a conflict should

exist; and, in order to prevent

such a result, the language of the

two sections must l)e read together,

and that of one interpreted, and,

where necessary, niodilied, by that

of the other. In this way it may,

in most cases, be found possible to

arrive at a reasonable and practical

262 B.N.A. ACT, s. 92 (13).— NARROW INTERPRETATION.

■IINi^l'i

■t". I

Citizens" In- construction of the language of the

8URANCB Co. OF gpctions, so as to reconcile the re-

CANADAt). Par- ,. ' ., , . ,

SONS &c I spcctive powers they contain, and

give effect to all of them. In per-
forming this (litRcult duty, it will
1)6 i; wise course for those on whom
it is thrown to decide each case
which arises as best they can, with-
out entering more largely upon an
interpretation of the statute than is
necessary for the decision of the
particular question in hand.

" The first question to be de-
cided is, whether the Act impeach-
ed in the pi-csent appeals falls
within any of the classes of sub-
jects cnumei'atcd in sec. 91?, and
assigned exclusively to the legisla-
tures of the provinces; for if it
does not, it can be of no validity,
and no other question would then
arise. It is only when an Act of
the provincial legislature prima
facie falls within one of these
classes of subjects that the further
questions arise, viz., whether, not-
withstanding this is so, the subject
of the Act does not also fall within
one of the enumerated classes of
subjects in sec. 01, and whether
the power of the provincial legisla-
ture is or is not thereby overborne.

" The main contention on the
part of the .'cspondent was that the
Ontario Act in question had rela-
tion to matters coming within the
class of subjects described in No.
13 of <ec. 92, viz., 'Property and
civil rights in the province.'
The Act deals with policies of in-
surance entered into or in force in
the province of Ontario for insur-
ing property situate therein against
fire, and prescribes certain con-
ditions which are to form part of
such contracts. Theso contracts,
and the rights ari.sing from them,
it was argued, came legitimately
within the class of subject ' Property
and civil rights ' The appellants,
on the other hand, contended that
civil rights meant only such rights
a.s flowed from the law, and gave as
an instance the utatus of jiersons.
'I'hcir Lordships cannot think that
the latter construction is the correct

one. They find no sufficient reason
in the language itself, nor in the
other parts of the Act, for giving so
narrow an interpretation to the
words ' civil rights.' The woids
are suflicicntly large to endmice, in
tluir fair and ordinary meaning,
rights arising from contract, aiicl
such I'ights are not included in any
of the emunerated classes of sub-
jects in sec. 91.

" It becomes obvious, as .soon as
an attempt is made to con.strue the
genei'al terms in whicn the chisscs
of subjects in sees. 91 and 92 arc
desciibed, that both .sections and
the other parts of the Act must be
looked at to ascertaiiy whether
language of a general natiae must
not by necessary implication or
reasonable intendment be modified
and limited. In looking at sec. 91,
it will be found not only that there
is no class including, generally,
contracts and the rights arising
from them, but that one class of
contracts is mentioned and enumer-
ated, namely, ' 18, bills of exchange
and promissory notes,' which it
would have been unnecessarv to
specify if authority over all con-
tracts and the rights arising from
them had belonged to the Dominion
Parliament.

" The provision found in sec. 91
of the British North America Act,
which is one of the .sections relating
to the distribution of legislative
powers, was referred to by the
learned counsel on both sides as
throwing light upon the sense in
which the words ' property and
civil rights ' are used. By that
section the Parliament of ('anada
is empowered to nmke provision
for the uniformity of any laws
relative to 'property and civil
rights ' in Ontario, Nova Scotia,
and New Brunswick, and to tlio
procedm-e of the Courts in these
three provinces, if the provincial
legislatures choose to adopt the
provi.sion so made. The province
of Quebec is omitted fiom this
section for the ob\ions retuson that
the law which governs pioptit}

•11 !

B.N".A. ACT, s. 92 (13).— WHAT IS A TRADE? 263

1111(1 civil rights in Qiiebet' is in the
ijiiiiii tlic Frcneli lnw, as it existed
lit tli(! time of liie cessi(ju of
Ciiiiiiilii, and not the EnpHsli law
which pi('\ails in the other pro-
viiuM's. Tiu! words ' property and
civil I'ights ' are, obviously, used in
the smie sense in this section as in
Xo. 1.3 of sec. 92, and there seems
no on foi' presuminji; that con-
trai'ts and the rij^hts arising from
tlieiii were not intended to he in-
cluded in this provision for unifor-
mity. If, however, the narrow
ciinsfnietion of the words ' civil
lights,' contended for by the ai)pel-
liinis, were to previ;ii, the Dominion
Parliiinicnt could, under its general
]i(i\v('r, legishitc in regard to con-
tracts in all and each of the pro-
vinces, and, as a consequence of
this, the province of Quebec, though
now g(»verned by its own civil code,
fouiicled on the Fi'ench law, as
regards conti'acts and their inei-
(k'lits, would be subject to have
its hiw on that subject altered bv
tl',' I)(iniini(m Legislature, and
iMdiiirht into unii'oriiiity with the
English law prex ailing in the other
three i)rovinces, notwithstanding
that Quebec has been cart'fuUy left
out of t!ie uuifornutv section of the
Act.

" It is to be observed that the
same words, ' ci\'il rights,' arc em-
ployed in the Act of 11 Geo. 3.,
e. 83., which made provision for the
fiovernnient of the province of
Qiielioc. S"c. 8 of that Act enacted,
that His ;Majesty's Canadian b-
jeets within the province of Quebec
shdiild enjoy their property, usages,
and other civil rights, as they luut
hcl'oic done, and that in all matters
(if controversy relative to projjcrty
and civil rights, resort should be
liad to the law:' of Canada, and be
determined agreeably to the said
laws. In this statute the words
' prop( rty ' and ' civil rights ' arc
|ilainly used in their largest sense ;
and there is no reason for holding
that ill the statute under discu.ssion
they are u.sed in a different and
n;irrowcr one.

"The next question for con- Citizens' In-
sideration is whether, assmning the srnANCB Co. op
Ontario Act to relate to the subject ril^^." '^""

c . 1 • -1 ■ 1 X -x SONS, &C.

of property and civd rigbt.s, its
enactments and [)rovisious come
within any of the classes of sub-
jects enumerated in sec. 91. The
only one which the apiiellants sug-
gested as expressly including the
subject of the Ontario Act is No. 2,
' the regulation of trade and com-
merce.'

" A question was raised which
led to much di.scussion in the
courts below and at ihis bar, viz.,
whether the Jiu.siness of insuring
buildings against fire was a trade.
This business, when carried on for
the sake of profit, may, no doubt,
in some .sense of the word, be called
a trade. But contracts of in-
demnity made by insurers can
scarcely be considered trading con-
tracts, nor were insurers who made
them held to be ' traders ' under
the English bankruptcy laws;
they have been made subject to
those laws by special description.
Whether the liusincss of fire in-
surance [)roperly falls within the
description of ' a trade ' must, in
their Lordships' view, depend upon
the .sense in which that word is
used in the particular statute to be
construed ; but in the present case
their Lordships do not find it neces-
.sary to rest their decision on the
narrow ground that the business of
insurance is not a trade.

" The words ' regulation of trade
and commerce,' in their unlimited
sense, are sufficiently wide, if un-
controlled by the context and other
parts of the Act, to include every
regulation of tradi I'anging from
political arrangements in regard to
trade with foreign govei'iiments,
re([uiriiig the sanction of Parha-
ment, (k)wn to minute rules for
regulating particular trades. But
a consideration of the Act shows
that the words were not used in
this unlimited sense. In the first
jilace, the collocation of No. 2 with
classes of subjects of national and
general concern affords an indica-

^11

! ■■■'■.I

264 B.N.A. ACT, 8. 92 (13).— INTER-PROV. CONCERNS.

Citizens' Iw-

BURANCB Co. OF

Canada v. Par-
sons, &c.

tion that regulations relating to
general trade and commerce were
in the mind of the legislature, when
conferring this power on the Do-
minion Parliament. If the words
bud been intended to have the full
scope oi which in their literal
meaning they are susceptible, the
specific mention of several of the
other classes of subjects enumerated
in sec. 91 would have been un-
necessary; as, 15, banking; 17,
weights and measures; 18, bills of
exchange and promissory notes;
19, interest; and even 21, bank-
ruptcy and insohency.

" ' Regulation of trade and com-
merce ' may have been used in
some such sense as the words
* regulations of trade ' in the Act
of Union between England and
Scotland (G Anne, c. 11.), and as
these words ha\e been used in
other Acts of State. Article V, of
the Act of Union enacted that all
the subjects of the Uniteil King-
dom should have ' full freedom and
intercourse of trade and navigation '
to and from all places in the United
Kingdom and the Colonies; and
Article VI. enacted that all parts
of the United Kingdom from and
after the Union should be under
the same ' prohibitions, restrictions,
and ref/ulatioiis of trade.' Parlia-
ment lias at various times since the
Union passed laws affecting and
regulating specific trades in one
part of the United Kingdom only,
without its being supposed that it
thereby infringeil the Articles of
Union. Thus the Acts for regu-
lating the sale of intoxicating
liquors notoriously vary in the two
kingdoms. So with regard to Acts
relating to bankruptcy and various
other matters.

" Construing therefore the words
' regulation of trade and com-
merce ' by the various aids to their
interpretation above ,'suggested, they
would include politicid arrange-
ments in regard to traile requiring
the sanction of Parliament, regula-
tion of trade in matters of inter-
proviucial concern, and it may be

that they would include general
regulation of trade affecting the
whole Dominion. Their Lordships
abstain on the present occasion
from any attempt to deiine the
limits of the atithority of the Do-
minion Parliament in this directiou.
It is enough for the decision of the
present case to say that, in their
view, its authority to legislate for
the regulation of trade and com-
merce does not comprehend the
power to regulate by legislation
the contracts of a particular busi-
ness or trade, such as the business
of fire insurance, in a single pro-
vince, and therefore that its legis-
lative authority does not in the
present case conflict or compete
with the power over property and
civil rights assigned to the Legis-
lature of Ontario by No. 13 of
see. 92.

" Having taken this view of tiie
present ease, it becomes unneces-
sary to consider the question how
fur the general power to make rcfiii-
lations of trade and commerce, when
competently exercised by the Do-
minion Parliament, might legally
modify or affect property and civil
rights in the provinces, or the legis-
lative power of the provincial legis-
latures in rehition to those subjeets;
questions of this kind, it may he
observed, arose and were treated of
of by this board in the cases of
L'Union St. Jacques de Montreal
t". Belisle [in Q. B.Quebec, 20 Sept.
1872, 20 L. C. J. 29 ; in P. C.
June 8, 1874, L. R. 6 P. C. 31;
31 L. T. Ill; 22 W. R. 933 ; and
see mite, p. 84], and Cushing v.
Dupuy [in Q. B. Quebec, 22 March
1878; in P. C. April 15, 1880,
L.R. 5 App. Cas. 409; 49 L. J.P.C.
G3 ; 42 L. T. 445 ; and see ante,
p. 80].

" It was contended, m the case
of the Citizens' Insurance Company
of Canada, that the company having
been originally incorporated by the
Parliament of the late province of
Canada, and having had its incor-
poration and corporate rights con-
firmed by the Dominion Parlia-

B.N.A. ACT, .4. 92 (13).— GENERAL LAWS.

265

ment, could not be affected by an
Act of the Ontario Legislature.
But the latter Act does not assume
to interfere with the constitution or
status of corporations. It deals
with all insurers alike, including
corporations and companies, what-
ever may be their origin, whether
incorporated by British authority,
as iu the case of the Queen Insur-
ance Company, or by foreign or
colonial authority, and without
touching their status, requires that
if they choose to make contracts of
insurance in Ontiirio, relating to
property in that province, such
contracts shall be subject to certain
conditions.

"It was further urged that the
Ontario Act was repugnant to the
Act of the late province of Canada,
which empowered the company to
make contracts for assurance
against fire ' upon such conditions
as might be bargained for and
agreed upon between the company
and the assured.' But this is, in
substance, no more than an ex-
panded description of the business
the company was em[)owered to
transact, viz., to make contracts of
assurance against fire, and can
scarcely be regarded as inconsistent
with the specific legislation regard-
ing such contracts contained in the
Act in question.

"It was further argued on the
\mt of the appellants that the On-
tario Act was inconsistent with the
Act of the Dominion Parliament,
38 Vict. c. 20., which requires fire
insurance companies to obtain
licenses from the Minister of
Finance as a condition to their
carrying on the business of insur-
ance in the Dominion, and that it
was beyond the competency of the
provincial legislature to subject
companies who had obtained such
licenses, as the appellant companies
liad done, to the conditions imposed
by the Ontario Act. But the legis-
lation does not really conflict or
present any inconsistency. The
statute of the Dominion Parliament
enacts a general law applicable to

Canada v. Tab-
sons, &c.

the whole Dominion, requiring all Citizens' In-
insurance companies, whether in- sluance Co. n»
corporated by foreign, Dominion,
or provincial authority, to obtain a
license from the Minister of Fi-
nance, to be granted only upon
compliance with the conditions
prescribed by the Act. Assuming
this Act to be within the compe-
tency of the Dominion Parliament
as a general law applicable to
foreign and domestic corporations,
it in no way interferes with the
authority of the legislature of the
province of Ontario to legislate in
relation to tlie contracts which
corporations may enter into in that
province. The Dominion Act
contains the following provision,
which clearly recoguises the right
of the provincial legislature to in-
corporate insurance companies for
carrying on business within the
province itself : —

" ' But nothing herein contained
shall prevent any insurance com-
pany incorporated by or under any
Act of the legislature of the hite
province of Canada or of any pro-
vince of the Dominion of Canada
from carrying on any business of
insurance within the limits of the
late province of Canada, or of such
province only according to the
powers granted to such insurance
company within such limits as
aforesaid, without such license as
hereinafter mentioned.'

" This recognition is directly
opposed to the construction sought
to be placed by the appellants'
counsel on the words 'provincial
objects' in No. 11 of sec. 92, —
' the incorporation of companies
with provincial objects,' by which
he sought to limit these words to
' public ' provincial objects, so as
to exclude insurance and commer-
cial companies.

" Chief Justice Ritchie refers to
an ecpially explicit recognition of
the power of the provinces to in-
corporate insurance companies
contained in an earlier Act of the
Dominion Parliament (31 Vict,
c. 18.) which was ptissed shortly

WM-

266 B,N.A. ACT, 8. 92 (13).— DENIAL OF DOM.'S RIGHT.

Citizens' In-
'hBuuancb Co. op
■ Canada v. Pae-

BONS, &c.

after the establishment of the
Dominion.

"The learned Chief Justice [20
L. C. J. 29] also refers to a re-
markable section eontaincd in the
Aet of the Dominion Parliament
eonsolidatinjj eertain Acts respect-
ing insurance, 40 Viet. e. 42.
Sec. 28 of that Act is as follows :—

" ' This Act shall not a[)ply to
any company within the exclusive
legislative control of any one of the
provinces of Canada, unless such
company so desires ; and it shall
be lawful for any such company to
avail itself of the provisions of this
Act, and if it do so avail itself,
such company shall then have the
power of transacting its business of
insurance throughout Canada.'

" This provision contains a dis-
tinct declaration by the Dominion
Parliament that each of the pro-
^■inces had exclusive legislative
control over the insurance com-
])anies incorporated by it, and
therefore is an acknowledgment
that such control was not deemed
to be an infringenu'nt of tlie power
of the Dominion Parliament as to
' the regulation of trade and com-
merce.'

"The declarations of the Do-
minion Parliament are not, of
course, conclusive upon the con-
struction of the British North
America. Act ; but when the
proper construction of the lan-
guage used in that Act to define
the distribution of legislative
powers is doubtful, the interpreta-
tion i)ut u[)ou it by the Dominion
Pailiament in its actual legislation
may properly be consideretl.

"'J"he oi)iuions of the majority
of the judges in Canada as summed
up by Chief Justice Ritchie, are in
favour of the validity of the On-
tario Act. In the present action,
the Court of Queen's Bench and
tlie Com-t of Appeal of Ontiirio
unanimously suppoited its legality ;
and the Supreme Court of Canatla,
by a majority of three judges to
two, have aliirmed the judgment
of the provincial courtH. The

opinions of the learned judges of
the Supreme Court are stated with
great fulness and ability, and clearly
indicate the opposite views wliicii
may be taken of the Act, and the
difficulties which surround any con-
struction that maybe given to it.

" Mr. Justice Taschereau, in
the course of his vigorous judg-
ment, sought to place the plaintiff
in the action against the Citizens'
Company in a dilemma. He
thinks that the assertion of tlip
right of the province to legislate
with regard to the contracts of
insurance companies amounts to a,
denial of the right of the Dominion
Parliament to do so, and that this
is, in effect, to deny the right of
that Parliament to incorporate the
Citizens' Company, so that the
plaintiff was suing a non-existeut
defendant. Their Lordships can-
not think that this dilemma is
established. The learned judge
assumes that the power of the
Dominion Parliament to incorjio-
rat(^ companies to carry on business
ill the Dominion is derived from
one t)f the emimerated classes of
subjects, namely, 'the regulation of
trade and commerce,' and then
argues that if the authority to in-
corporate companies is given by
this clause, the exclusive power of
regulating them must also be given
by it, so that the denial of one
l)ower involves the denial of the
other, But, in the first place, it is
not necessary to rest the authority
of th(! Dominion Parliament to
incorporate companies on this
specific and enumerated power.
The atithority would belong to it
by its general jiower over all mat-
ters not coming within the classes
of sulijects assigned e.veliisively to
the legislatures of the provinces,
and the only subject on this head
assigned to the provincial legislature
being ' the incorporation of coni-
jtaiiies with [irovincial objects,' it
follows that the iiicor[)oration of
comi«inie8 for objects other than
provincial falls within the general
[Mjwers of the Parliament of Canada.

! i '

BJf.A. ACT, s. 92 (13).— CONDITIONS OF INSURANCE. 267

But it l)_v 110 means follows (unless
iiidwd tlie view of tlie learned
iml^o is rif^iittis to the seojie of the
words 'the regulation of trade and
tiiuiiiieree ') that because the Doiiii-
nidii I'arliiimeiit had alone tlie
rii'lit to create a eoquiration to
c;iiTV on business throughout tl'.e
Ddiiiinioii that it alone has the
ijijlit to regulate its contracts in
inch of the jH-ovinces. Suiipose
tilt' Dominion Parliament were to
incorporate a company, with power,
iminiig other things, to purchase
mill lioiil lands throughout Canachi
in iiiortiiiain, it could scarcely be
(■oiiteiidcd if such a eoniiiany were
to I'ltrry on business in a [)rovince
wlu'iv a law against holding land
ill luortuiaiii pri-vailed (each pro-
vince Iiaviiig exclusive legislative
power o\er ' pro])erty and civil
rililits in the pro\ ince ') that it
could hold land in that province in
contravention of the provincial
ii't;isliition; and, if a conqw-i-
were incorporated for the sole pur-
liosc of ]mrehasing and holding
liinil ill the IJouiinion, it might
ii!i[)l)i'ii timt it could do no business
in any part of it, by reason of all
tlic provinces having [lassed Mort-
uiiiin Acts, though the corporation
would still exist and preserve its
status MS a corporate body.

" On the best consideration they
have been able to give to the argu-
ments addressed to them and to
till' judgments of the learned
judges iu Canathi, their Lordships
liiive come to the conclusion that
the Act in question is valid.

" Their Lordships have now to
consider separately the two ap[)eals.

The Citizens' Insurance Comp. ly
of Canada v. Parsons.

''This company, whose incorpo-
ration has been already described,
lias its head ollit'e in Montreal, and
carries on business in Ontario and
the other provinces of Canada.

"The respondent insured withthe
coinpiiny, through its local agent in
tlie town of Orangcville, Ontario,

a building situate in that town. Citizens' In-
occu[)ied as a hardware .store, for ^'"'^''cb Co. of
one year in .S2,500, and, on the 4th ^om^'&il' '"'
May 1877, a pcdicy of the company
containing this insurance was issued
by tile agent at Orangeville to him.
This [lolicy was made subject to
the usual conditions of the com-
pany, which were endorsed on it.
The following is alone material : —

" ' Tlie assured must give notice
to this comiiany of any other
insuraiH.'e effected on the same pro-
perty, and have the .same endorsed
on this policy, or otherwise acknow-
ledged by the comiiany in writing,
and failure to give such notice
shall void this jiolicy.'

" ' And this policy is made and
accepted under the conditions above
mentioned, which are to be used
and resorted to in order to explain
the rights and obligations of the
[larties hereto in all cases not herein
otherwise sjiecially provided for.'

" The conditions contiiined in
the Ontario Act were not printed
in the iiolicy, nor was any refer-
ence made to them in it.

"On the 3rd Augu.st 1877 the
insure! 1 building was destroyed by
fire. The respondent thereupon
brought the prestmt action.

" At the time the insurance was
made and the policy i.ssued by the
Citizens' Company, another insur-
ance had been effected on the .same
building with the Western Assur-
ance Company, of which no notice
was given by the resjiondent to the
Citizens' Company, nor was it en-
dorsed on or indicated in the policy,
nor did the acknowledgment or
assent of the Citizens' Company
thereto in writing in any way
ajipear. These omissions consti-
tuted a breach not only of the
conditions endorsed on the policy,
but also of the comUtion in
relation to prior insurances con-
tained in the Ontario Act already
set out, and coiise<iuently, if either
of these conditions forms a part of
the contract l)etwt^n the |uirties,
\\w respondent's action against the
company must fail. It is admitted

268 B.N. A. ACT, s. 92 (13).— STATUTORY CONDITIONS.

Canada v. Pab'

SONS, &c.

li!::

Citizens' In- that this is so, but it is contended,
suBANCE Co. or o„ ji,p pjji-t of the resimndcnt, that

flAMmA 11 Pad. .11 1

neither the agreed nor the statutory
conditions are binding njwn iiini,
and that the contract oi' insurance
is subject to no conditions wliat-
ever. The courts of Canada have
sustained this contt.'Ution.

" The question turns on the con-
.struction of the Ontario Act. It
is not disputed by the company that
the conditions endorsed on tiie
policy, which form tlie actual con-
tract between the parties, are, by
force of the statute, displaced, inas-
much as they are not shown to be
variations from the .slfitutory con-
ditions in compliance with the pro-
visions of the Act, The question
to be decided is, whether the cffec^t
of this non-compliance is to make
the contract subject to the statutory
conditions, or to reduce it to a bare
contract of insurance without any
conditions.

" Sec. 1 enacts that ' the con-
ditions set forth in the schedule to
the Act shall, as against the insurers,
be deemed to be part of every
policy.' Notwithstanding this ex-
press enactment, it is contended
that they are not to be so deemed,
unless they are printed on thi^
policy. The section no doubt goes
on to enact, but not in tlie ft)rm of
a jjroviso or condition, that tiie
coiulitiqns ' shall be ])rinted on
every such policy with the heading
" Statutory Conditions " ' ; but it
does not enact that if there be an
omission so to print them thcsy shall
not be deemed to be a part of the
contract. Printing the statutory
conditions is made a neces.sjuy
part of the mode prescribed by the
Act of showing variations from
them, and is unquestionably essen-
tial to the validity of any such
variations, for the section further
enacts that if insurers desire to
vary the statutory conditions, or to
omit any of tiieui, or to add new
conditions, ' there shall be a<lde(l, in
conspicuous type, and in ink of
different colour, words to the
following effect : —

" ' Variations in Conditions.

'"This policy is issued on tlie
above statutory coniHtions, with the
following variations and adihtions.'

"I?'.'c. 2 i)rovi(les what may be
called a |)enalty for the non-obser-
vance of these last-mentioned pro-
visions. It enacts that unless dis-
tinctly indicated in the manner
])rescribed 'no such variation, ad-
tlitiou, or omission shall be legal
and binding on the insured,' ami,
' on the contrary ' — here follows
the conse([uence and penalty — ' the
policy shall, as against the insurers,
be subject to the statutory con-
ditions only.' The effect of these
enactments in the present case is
that the conditions written on the
policy are not binding on the
insurer, either by virtue of the
actual contract, or as variations
from the statutory conditions, be-
cause they are not indicated to ht
so in the manner [irescribed by the
statute. Printing the statutory
conditions is a necessary part of
the manner prescribed for indicating
these variations, and the jienalty
provided by the Act for not observ-
ing that manner is that the policy
becomes subject to the statutory
conditions. No provision is made
for the omission to print the statu-
tory conditions as a separate de-
fault; and their Lordships think,
looking at the object and scope of
the two sections, that in the absence
of an ex[)ress enactment to that
effect, it cannot be implied that the
intention of the legislature was that,
in a case where the company had
printed its own conditions, but had
failed to print the statutory ones,
the policy is to be deemed to be
without any conditions. Indeed,
such an implication would seem to
be opposed to the principle of the
Act, which is that, except in the
case of variations properly indicated,
the statutory conditions shall be
deemed to be part of every policy.

" It was further contended, and
the contention seems to have been
supporttnl by some of tlie judges,

-rn-

B.N.A. ACT, s. 92 (13).— "AS AGAINST INSURERS."

269

(hat if the statutory conditions in
cases like the present are to be
ileemed to be a part of the policy,
thev form a part of the contract
only iis against the insurers, and
are not binding on the assured.
Their Lordships cannot agree with
this construction of the Act. The
first section of the Act, which de-
dares that the statutory conditions
shall be deemed to be part of every
policy of fire insurance, also con-
tains the words ' as against the
insurers,' and it is evident that these
words must have the same meaning
in both sections. If the construc-
tion put on them by the respondent
be correct, it would follow that in a
case where an insurance company
implicitly followed the direction of
the statute, and printed the statu-
tory conditions on its policies with-
out more, the conditions would still
be a part of the contract only as
against the company, and the
assured would not be bound by
them. Such a construction leads
to manifest absurdity, and to conse-
i|uences which the legislature could
not have intended. The preamble
of the Act shows that the con-
ditions were passed by the legisla-
ture as being 'just and reasonable.'
On looking at the twenty-one con-
ditions contained in the schedule, it
will be found, as might naturally
be ex[)ecte(l, that they are all, with
a trilling exception, protective of
the insurers, though probably less
stringent than those usually im-
posed by the companies themselves.
Tliey impose obligations not on the
ii'surers but the assured. To con-
strue the statute, therefore, as
enacting that these conditions are
binding only on the insurers for
whose protection they are intro-
duced into the contract, and not on
the assured by whom they are to
be performed, would be to affirm
that the legislature had used words
signifying in effect that the con-
ditions which it has declared shall
be a part of the contract shall not
be binding at all. But effect may
be given to the words in question

without re.sorting to such a con-
struction of them.

" Strong reasons would be re-
quired to show that the words ' as
against the insurers ' are used in
the second section in a different
sense from that in which they are
used in the first, but none can be
suggested. The second section
provides as an alternative that un-
less the variations are shown in the
prescribed manner, the policy shall,
as against the insurers, be subject
to the statutory conditions only,
that is to say, the variations as
against the coi»pany shall not, and
the statutory conditions shall, avail.
If the respondent's construction
were to prevail, though the conse-
quences under this .section might
not be so manifestly absurd as in
the case already adverted to of a
company having simply printed the
statutory conditions without more,
it wouhl still lead to much injustice;
for if a conq)any in making varia-
tions, though in all other respects
complying with the .statute, should
not use what might be thousht
consi)icuous type or ink of the
right colour, not only would the
variatioiis it had attenqited to make
be of '10 effect, but it could not
invoke the statutory conditions,
and the insured would be free from
any conditions whatever.

" It may i)ossibly have been in-
tended to give to the assured an
option, if he thought the comi)any's
conditions more favourable to him
than the statutory ones, to stand
upon the actual conditions ; but it
could not have been intended, nor
does the language of the Act need
such a construction, that he should
be set free from both sets of con-
ditions. The meaning of the legis-
lation, though no doubt unhappily
exi)ressed, a[)pears to be that what-
ever may be the conditions sought
to be imposed by insurance com-
panies, no such conditions should
avail against the statutory con-
ditions, and that the latter should
alone be deemed to be part of the
policy, and resorted to by the

Citizens' Ii»-

8URANCE Co. OP

Canada v. Par-

80NB, &C.

'! i

270 B.N.A. ACT, s. 92 (13).— INTERIM PROTECTION.

CiTIZBNS' In-
HUilANCB Co. OP

Canada v. Pau-

SONS, &l'.

il:

iiisnivrs, notwitlistnnding nnv con-
ditions of tlit'ir own, unloss tlio
latter iu« indicated as variations in
the prescribed maimer.

" Their Lordsliips being of
opinion that the policy in this case
l)ecame subject to the statutory
conditions, and there having been a
bleach of those conditions, the
plaintiff's action again.st the Citi-
zens' Insurance Company fails.
They will therefore himibly advise
Her Majesty to order that the
judgments appealed from be re-
versed, and that the rule obtained
by the company to scit aside the
verdict and enter a nonsuit be made
ab.sohite.

The Queen Insurance Company
V. Parsons.

" This English corfwration car-
ries on business at Orangeville
through an agent. On the 3rd
August 1877, the respondent ap-
plied to this agent to effect with
the company an insurance for
82,000 on a general stock of hard-
ware and other goods contained in
the building in Orangeville, which
was the subject of insurance in the
other action, and a premium of 840
was agreed on.

" An interim receipt was there-
upon given to the respondent by
the agent, which is in the following
terms : —

' Interim Receipt.

* Fire Department. Interim Pro-
tection Note.

'Queen Fire and Life Insurance
Company.

' Chief Office, Queen Insurance
Buildings, Liverpool.

Canada Head Office, 191, St. James,
Street, Montreal.

« No. 33.

' Orangeville Agency,

'3rd August 1877.
*Mr. William Parsons, having
this day proiw.sed to effect an insur-
ance against fire, subject to all the
usual terms and conditions of this

eomi)aBy, for 1^2,000, on the fo).
lowing ]iroperty in the town of
Orangeville, t'oi- 12 months, nnnu'ly,
on general .stock of hanlwarc
paints, oils, varnishes, window
glass, stoves, tinware, castinirsj
hollow wai'c, ))lated and fancy
goods, lami)s, lamp glasses, and
general house furnishing goods.

'And having also paiil the sum
of IJIO as the premium on tiie same,
it is hereby held assured under
these conditions until the policy is
delivered or notice given that tin'
proposal is declineil by the com-
pany, when this interim note will
be thereby cancelled and of no
effect.

* (Signed) A. M. Kirklaxd,

' Agent to the Couipanv.

' N.B. — The deposit will be re-
turned, less the proportion for the
period, on application to the agent
signing this note, in the event of
the proposal being declined by tiic
company. If a(!cepted, a ])olicy
will be prepared and delivered
within 30 days. If the holder
does not receive a policy during tlic
specified period, he shouhl apply to
the head office in Montreal.'

"A fire happened on the same
day, before a policy had been de-
livered to the respondent.

" The action was brought upon
the interim receipt. The declara-
tion which was framed ui)on it, ns
originally drawn, set out the con-
ditions of the company as those to
which the insurance was declared
by the interim note to be subject.
It is agreed that the declaration
was afterwards amended by striking
out these conditions, though the
amendment does not appear on the
record.

" Having regard to the argu-
ments addressed to their Lordships,
it is only material to refer to one
of the company's usual conditions,
the fourth, which provides, among
other things, that the company will
not be liable for any loss or damage
when more than 10 lbs. Aveight of

B.N.A. ACT, s. 02 (13).— ASSFHED ON CONDITIONS. 271

c»nn'>owili'r i>< (Icjiositoil or ki';)t im
t"lic prc'inisi's, unless tlic sniiic is
(.s|H'ciiill_v iillowcd in tlic hody ol'
till' [idlii'v, iind suitiihlo oxtni \m'.-
miiim piiitl. This qwiintity ol' friin-
nowilcr is sniiillcr tlitin tlifit incn-
tioiicil in tlic stiitntorv condition
,,l,„v(. set out (."Ji) Vict. (Ont.) f. 21.
s. 10 {(/) ), wliicli provides tlmt tlio
imiipiniy is not litd)li' for loss or
(laniii^'e" oeciuTinj; while, ninonji;
utlicr tilings, more tlinn 25 lbs.
weight of gunpowder are stored or
kept in the liuilding eontiiiniiig the
property insured.

" It is adiuittod that at tlie time
of the fire gunpowder exceeding
10 lbs. in weight was kept in the
linililiiig destroyed by the; fire, and
the jury have found that the (pinn-
titv so kept was less than 25 lbs.

" It is contended on the part of
the respondent that the contract
must, by force of the Ontario Act
ill rpiestion, be treated as being
without any conditions ; or, if siib-
jeet to any, to the statutory condi-
tions only.

"The judgment of their Lord-
ships in the other action has dis-
posed of the first of these conten-
tions. The second raises the (juos-
tion, whether the company's own
eonditions or tlie statutory condi-
tions arc to be regarded as forniing
part of the contract, and its answer
depends npon a consideration of
tlie further question, whether the
interim note is a [lolicy of insurance
within the meaning of that term in
the Ontario Act.

"This note is not a policy of in-
surance in the common understand-
ing of that word, and was certainly
not understood to be so by the
parties to it. It is expressly a
contract for a policy, making in-
terim provision until a policy is
prepared and delivered. It contains
a [iroposal for insurance, which, if
accepted by the company, would
result in a policy to be based on
the terms of the proposal, and
issued by the company to the re-
spondent ; the company having an
option to decline the jiroposjil, in

wliich case no ])olicy would be de- Citizens' In-

livered. The iiroiiosal tiius offered 8p«ance Co. op

.. , . .' i.. . Canada f. l'.\i!-

lor accehtance is 'toeftect an iiisiir- ^„„„ o „

1 • III I Dur*s, vK-i •

anee sul»ject to all the usual terms

Mild conditions of this com|)any,'
and pending tlie acceptance or
refusal of the company, and until
the policy is delivered or notice
given that the insurance! is de-
clined, the property is 'held as-
sured under •' these conditions." '
No doubt this last stipulation
forms a contract of insurance dur-
ing this interval ; but tlie whole
agreement is preliminary only, and,
in substance^ the not(f is a propos,- '
for a policy to be carried into
effect, if accepted, by the delivery
of a policy ; as subsidiary thereto,
and for the convenience of the
person proposing to insure, im-
mediate [irotection is granted to
him. The practice of issuing in-
terim notes mu.'t have been well
known, and apt words might have
Vieen found by the legislature to
describe them if they had been in-
tended to be included in the Act.
It may have been thought that it
would be a clog upon the business
of insurance, and would place difli-
eulties in the way of obtaining
these interim protection notes, if
companies were obliged to prejiare
them with all the fulness and for-
malities which the Act requires in
the case of policies.

" Their Lordships, therefore, are
dispo.sed to come to the conclusion
that the interim note in question is
not a policy of insurance within
the meaning of the Act. If in any
case it should appear tiiat an in-
terim note or any like instrument
was intended by the parties to bo
the complete and final contract of
insurance, and that this shape was
given to the instrument for the
purpose of evading the Act, the
present decision would not be op-
posed to the instrument being
treated as a policy of insurance ;
the ground of their present decision
being that the interim note in this
ease is what it professes to be, pre-
liminary only to the issuing of

■t ;

•^

272 B.N.A. ACT, s. 92 (13).— TIEMITTIN"G ACTTOX.

'^ ■ ti 1'

i >

i;; 1

i i

CiTizBNs' In- another instrument, viz., a policy,

suRANCB Co. OP which tho partifs bond Hdc inti-n-

Canada 11. Par- i i u 1 1 i • i

80N8,&c. dc. .shouhl be issno(l.

" 1 he.se iiitermi prnteetion notes,
given by lire insiirnnee eoniiianies,
lu'iir nn ftnnlo;j;y to the ' slips,'
eoninionly n.sed in eases of marine
insurance, preliminary to the issu-
ing of policies. The slip contains
the heads of the contract, and is
in itself a contract of insurance,
though by the statute law of Eng-
land, passed for revenue purposes,
it could not, until the recent Act
of 23 Vict. c. 23., be looked at by
n court of law for any purpo.se.
Since that Act, it may, for some
jnirposes, be given in evi<lenee.
In a case in the Court of Queen's
Bench in England, in which the
nature and effect of these slips
came under discussion, Mr. Justice
Ulackburn says, ' As the slip is
clearly a contract for marine in-
surance, and as clearly is not a
policy, it is, by virtTie of these en-
actments, not valid, that is, not
enforceable at law or in eciuity ;
but it may be given in evidence
wherever it is, though not valid,
material.'

" What then are the conditions
of the contract which is the sub-
ject of this action ? The interim
note contains a proposal by the
respondent to effect an insurance
on the company's ' usual terms and
condition.s,' and the interim insur-
ance is made subject to these con-
ditions. If the contract of the
parties had come to be executed,
the company would perform it by
issuing a policy, .subjtH't to their
own conditions, if they could
legally do so. Indeed, if the as-
sured so required, it woidd be obli-
gatory on them to perform it in
this manner. In the view their
Lordships take of the Act in ques-
tion, the company might, conform-
ably with its enactments, issue a
policy with their own conditions,
provided that care was taken to
print the statutory conditions, and
show the variations from and the
additions to them which their own

conditions present, in the manner
preseril)ed. 'I'hey think that it
ought to be pi'csiuued that the
com[)any would thus ])erform their
contract when they came to issue n
policy; and this being so, liuit
tiieir own conditions ought to lie
road into the interim contract to
the extent to which they might law-
fully be made a part of the poliev
when issued, by following the
directions of the statute, subject
always tr the statutable conditidii
that they should l)e held to be just
and reasonable by the court or
judge.

"For these reasons, their Lord-
ships think that the judgment of
the Court of Queen's Bench dis-
charging the ai)pellants' rule for
.setting aside the verdict for tlie
jdaintiffs, and the judgments alllrm-
iiig it, ought to be reversed, but
their Lordships do not .see their
way to decide the question whieli
now arises, and was not deter-
mined by the judge who tried the
action, or by any of the courts in
Canada, whether the company's
condition with respect to the quan-
tity of guni)owder kept in the
building containing the property
insured is just and reasonable.
They think the ride nisi shouhl
b(( kept open, and the action re-
mitted to the Court of Queen's
Bench in order to the trial of this
((uestion, with a direction that the
rule be disposed of according to
the decision that may be come to
upon it, and they Avill humbly ail-
^•ise Her Majesty to this effect.

" The appellants, though success-
ful on other points, having failed
on the important (pie.stion of the
validity of the Ontario statute, on
which special leave to appeal from
the judgment of the Supreme Court
was granted by this Boaril, their
Lordships think it right to make
no order as to the costs of these
appeals."

Kev. Robert Dobie v.
Board for the
the Presbyterian

The

Church of

management

-y.VKmKm'Mmil^

B.N.A. ACT, s. 92 (13).— CLERGY FUNDS.

273

Canapa in connpction witli the
(Imri'h of Scotland, et al. In Quo-
1»k; Q. B. 19 Junn 18S0, Sir A.
Porion, C. J., M'Cord, J., Rauisiiy,
J., dissenting, affirmed Jette, J.
(20 Dec. 1879), holding the Act
valid, 26 L. C. J. 170; in P. C.
Jiin, 21, 1H82, 7 App. Cns. 130;
,;iL. J. P. C. 26; 46L. T. 1.
Lord Watson delivered the follow-
in" judgment, reversing the decision
of tlie coiu't lx>low [there were also
pivM'nt Loid Blnekhurn, Sir Bnrnes
Peacock, Sir Montague Smith, Sir
Robert P. Collier, Sir Richard
Coiieli, Sir Arthnr Hobhouse] :
"The first qnestion raised in thi.s
iiplH'id is, whether the legislature
(if till' pi'ovince of Quebec had
\n\WY, in tiie year 1875, to modify
or i'i|x'iil the enactments of a
-tatnte passed by the Parliament of
till' province of Canada in the year
\m (22 Vict. c. 66.), intituleil
• kn Act to incorpoi-ate the Board
for the management of the Teui-
jioraiities Fund of the Presbyterian
L'imreh of Canada in connection
witli tiie Church of Scotland.'

"The fund, subject to the ad-
iiiinistmtion of the Board consti-
tiitod by the Act of 1858, con,sisted
of a capital sum of £127,448 5s.
^loriing, which was paid by the
(iovoinment of Canada under the
following circum.stances. Theniin-
i^tors of the Pre.sbytcrian Church
if Canada, in connection with the
Cli'irch of Scotland, were entitled.
In virtue of certain Imperial stat-
utes, to an endowment or annual
Mihsidy out of the revenues derived
from colonial lands, termed clergy
roserves, and from moneys obtained
liy the sale of portions of these
liiiiils, supplemented, when neces-
sary, from the Exchequer of Great
Britain. But thi.s connection be-
twoon the Presbyterian Church and
the State was at length dissolved.
Ill 1853, an Act was passed by the
British Parliament (16 Vict. c. 21.),
aiitiiorizing the legislature of the
province of Canada to dispose of
tlie clergy resCiVes, and invest-
lueuts arising from sales thereof,

S 2340.

but reserving to the clergy the
annual sti|M'nds then enjoyed by
them, and that during the jxriod
of their natural lives or incum-
bencies. Ill 1855, the legislature
of Canada, in exercise of the jKJwer
thus conferred, enacted that all
union between Church aiui State
should cease, and that those
ministers who were admitted to
office after the 9th May 1853,
being the date of the Act, 16 Vict.
c. 21., should receive no allow-
ance from the Government. It
was, however, provided that the
rights of ministers entitled, at that
date, to participate in the State
subsidy, should Ixs reserved entire,
power being given to the Governor-
General in Council to commute the
annual stipend payable to each in-
dividual so entitled for the capital
value of such stipend, calculated at
six per cent, on the probable life of
the onnuitant.

"All the ministers interested
consented to accei)t the statutory
terms of commutation, and agreed
to bring the amounts .severally
payable to them into one common
fund, to be settled for behoof of
the Presbyterian Church of Canada
in connection with the Church of
Scotland. In accordance with re-
solutions unanimously adopted by
the Church in Synod assembled on
the 11th January 1855, they fur-
ther agreed that the interest of the
fund shouhl be devoted, in the first
instance, to the payment of an
annual stipend of £112 10s. to
each commutor, and that the claim
next in order of preference should
be that of ministers then on the
roll, who had been admitted since
the 9th May 1853. The arrange-
ment thus effected was carried out
by eight commissioners duly ap-
pointed for that purpose, of whom
three were ministers and five were
laymen. They received iMiyment
of the commutation moneys, to the
amount already stated ; and in order
to provide for the management of
the fund thus obtained, the legisla-
ture of the province of Canada, upon

Rrv. RonenT

DOBIK I'. KOART)

OF Phrsiiv-

TBRIA.N ClIUHCII.

' A

Ill

i I
' i

274 B.N.A. ACT, R. 92 (13).— UNION OF CHURCHES.

'■f

Rbv. HonFKT

IlonlR V. ItllARD
OF i'llKHIIY-
TRIIIAN ClU'RCII.

iliijiii

llio ivpplicntionof tho oominiHsioiiprH,
|)iissf(l the Act 22 Vict. c. 00.

" By tlio first clnn.'<o of the Act
in quc.-^tion, the coininissioiiors were,
iiloiifj; with four mlditioiml niciiihcrs
niitl tlioir successors, tlccliircd to Itc
n luxly l)ohtic nnd corporate, by the
iinine of the ' Board for tlie inan-
a<;enient of thcTeniporaiities Fund
of the Presbyterian C'hurch of Can-
ada in connection with the Church
of Scothind'; and the funds lield
by them as eoniniisHioners were
vested in the Board 'in trust for
tlie said Clnirch,' subject to the
eonchtion that tiie annual interest
tliereof sliouhl remain chargeable
with the stipends an<i allowances
payable to the paities entitl '.
thereto, in terms of the arrange-
ment under which the fund was
contributed by the commutors. It
was enacted that, at the first meet-
inp; of Synod held after the passing
of the Act, three connnissioners,
one minister, and two laymen,
shoidd retire from the BoanI, and
that .seven new members, consisting
of four ministers and three laymen,
shouhl be elected by the Synod.
'J'he Board thus reconstitute(l was
composed of six mim'sters and six
laymen, and it was provided that
at each annual meeting of the
Synod held thereafter two min-
isters and two laymen were to re-
tire by rotation, and that foin- new
members, two clerical and two lay,
should be elected in their stead.
It was expressly enacted that all
members of the Board should also be
members of the Presbyterian Church
of Canada in connection with the
Church of Scotland ; and provision
was made for filling u[) vacancies
occasioned by the death or resigna-
tion of a member, by his removal
from the province of Canada, or by
his leaving the communion of the
.said Church.

"In the year 1874, serious pro-
posals had been made for an incor-
porative tmion between the Pres-
byterian Church of Canada in
connection with the Church of
Scotland, the Canada Presbyterian

Chtirch, the Church of tlio Mnrj.
time Provinces in comiection with
the Church of Scotland, and tlic
Presbyterian Clmrdi of the Lowci
Provinces. Tlie old Parliament (if
the j)r()vince of Caiuida had liy tlii>
time been abolished, aiul its i(.(ri<.
Intive power had been distrilmtcil
between the two provincial lo<,'isli|.
tures of Ontario and Quebec, umi
the new Parliiunent of the Dcmij.
nion of Canada, untU'r the piovi-
sions of the ' Briti.sh North Anic
rica Act, 1867.' With the \n
of facilitating the conteni|ilati'(i
union of the Chtu'ches, an Act (i[
the legishiture of Quebec waspasscil
in Fel»ruary 1875 (38 Vict. e. 02.),
in order to remove any obstiuctidii
which might arise from the form
and designation of the sevcnil
trusts or acts of incorporation liv
which the ja-operty of the chuidus
was held and administered. Bv
the 11th section of that Act, it wns
provided that, in the event of uninii
taking jdace, the members then
constituting the Board for nianiigc.
ment of the Temi)oralities FiuhI,
under the Act of 1858, should lo-
uuiin in office, and imy oxer the
revenue to the i)ersons itreviousiy
entitled to it ; that any revenue not
recpiired for that purpose slimiid
pass to and be subject to the (lis-
l)osal of the united church ; niul
that any part of the fund reuminin|;
after satisfying the claim of tiic
last survivor of those entitled slioiilil
belong to the Supreme Court of tlic
United Church, and be applied to
the aid of weak congregations. It
was by the same clause eiinctcd
that vacancies occurringin the Teiu-
])oralities Fund Board should not be
filled up in the manner theretofoiv
observed, but shouhl be filled up
in the manner provided by aiiotbcr
Act of the Quebec Legislature.

" This last-mentioned .stntiite
(38 Vict. c. 64.), which received
the assent of the Governor-General
in Council upon the same day as
the preceding, was passed with tiie
professed object of amending tlie
Act of the Parliament of the pro-

ny..\.

nV.A. ACT s. 02 (13).— ONTARIO & QUEBEC CLEKGY. 275

!"■

viiiot> of Cnnn<ln, 22 Vict, c 00.
It WIS tlicrcWy cimctcd tliiit, from
the tiiiu' wlifii tlic iinioii \\i\s
ilfictcd, the nnnnal nllowanocs to
wliicli tlioy woiv pri'vioiisly ('iititlcfl
uviv to lie c'oiitiimt'<l by tlu> Ti'in-
[Kiialitics Boai'tl to ininistcrs ami
iiliiitioiu'i's tlicn on tlic loll of tlif
i'iv<l)ytfnan Cliurcli of Canada in
(diiiKrtioii with thv Cliurcli of
Scdilniid.andtlifsc wcro to lie paid,
<() I'lw as iii'ci'ssary, out of the
ijil>itnl of tlic fund, and that any
«nr|ilns of revenue or cajiital, after
Mitisfvinjj these charj^es, shoidd he
lit till' (lisiio.sjil of the united ehureli.
Ministers and probationers of the
cliiircli, interested in the temporali-
tii's fund, who mi^lit deeline to
luwme [mrties to the union, were,
linwever, to retain all rijjhts pre-
\i(iiis!y eomiieteiit to them until
the same lapsed or were ex-
tiiiiruislied. The constitution of
of management was
the third and eijjhth
the Aet. The third
in these terms : — ' As

l)ene(leiaries is rediieod

below ^B*'- Ronr.BT

I to A lit)

tile honrd
iiiti'i'cd by
ciimscs of
clause is

Ditcn lis any vaeauey in the board
I'lir tiif management of the said
tf'iiipoialities fund occurs, by death,
rcsi^niation, or otherwise, the benc-
ficiiirios entitled to the benefit of
ihi' said fund may each uominnte a
]iirsoii, being a minister or member
of tilt' said united church, or, in the
I'vent of there being more than one
viiciincy, then one person for each
viK'iincy, and the remanent inem-
lii'i's of the said board shall there-
upon, from among the persons so
noininnted ns aforesaid, elect the
liiisou or number of persons
iK'W'ssary to fill sncli \acancy or
viicaiicies, selecting the person or
pi'isoiis who may be nominate.' by
till' largest number of beneficial ies,
l)iit in the event of failure on the
part of the beneficiaries to nominate
iis aforesaid, *he remanent members
(if tlie hoard shall fill up the vacancy
nr vacancies from among the miuis-
tirs or memlKM's of the said united
fliuieh.' The eighth clause enacts
tlint tlio third section shall con-
tinue in force until the number of

fifteen, upon which occurrence the i'"""'- ''• ""ahi

, 1 • , 1 .• II »1 IH' J IIKSIIV-

board is to lie continued Ity tlie Tj.„nji d,, |„„

remanent nieiiiiiers rilling up vacan-

cios from iiiiiong the ministers or

members of the united churidi. By

the teiilli section it was declared

that the Act should come into force

as soon as a notice was published

in the Quebec Ollieial Gazette to

the efl'eet that the union had been

coiisiimiiiiited, and that the artichvs

of union had been signed by the

nioderiitors of the respective

churches.

"Oil the 14fh day of June 1875
the Synods of the four churches
met at Montreal, and in each a
resolution was curried in favour of
union. In the Synod of the Pres-
byterian Church of Canada in con-
nection with the Church of Scot-
laml it was restih ed, by a very large
majority of its members, that tlie
four cliurelies should be united and
form one assembly, to be known
as 'The GeiU'ial Assembly of the
Presbyterian Church in Caniuhi,'
and that the united church shouhl
possess the siime authorities, rights,
privileges, and benefits to which
the Presbyterian Church in Canada
in connection with the Church of
Scotland was then entitled, except-
ing such as had been reserve 1 by
Acts of Parliament. The minority,
which consisted of the a|)pellant,tlie
Rev. Robert Dobie, and nine other
members, dissented from the action
of the Synod, ami protested that
they, and those who might choose
to adhere to them, remained and
still constituted the Presbyterian
Church of Canada in connection
with the Church of Scotland.

"On the loth June 1875 the
majority of the Synod of the Pres-
byterian Church of Canada in con-
nt'ctiou with the Church of Scot-
land, and the Synods of the other
uniting churches, met in general
assenil)ly, when the Articles of
Union were signed by the modera-
tors of each of the four churches ;
and thereupon one of the modera-
tors, with the con.sent and concur-

s 2

276 B.N.A. ACT, s. 92 (13).— COMPETENCY OF PROV. ACT,

Rev. Robeht renco of the rost, declared the four
DoBiE V. Board ehurches to lie united in one church,
TERuTclI'uRfii. represented by that its first general
assembly, to be designated and
known as * The General Assembly
of the Presbyterian Cinirch in
Canada.' Notice of the tinion
liaving been thus consummated
was duly published in the Quebec
Official Gazette.

" After publication of the notice
the constitution of the board for
managing the temporalities fund
was altered, and the fund adminis-
tered, in conformity with the pro-
visions of the Quebec Act, 38 Vict,
c. 64. In December 1878 tlie Rev.
Robert Dobie, who, with the other
members of tie protesting minority
of 1875, and their adherents, main-
tains tiiat they alone represent
and constitute the Presbyterian
Churcli of Canada in connection
with the Church of Scotland, insti-
tuted, by ix'tition to the Superior
Court for Lower Canada, the pro-
ceedings in which the present ap-
peal has been taken. Tiie leading
conclusions of the petition are to
have it adjudged and declared (1)
that the Legislature of Quebec had
no power to alter the constitution
of the board or the purposes of the
trust created by the Canadian Act,
22 Vict. c. 66., and consequently
that the Administration of the trust
as carried on in terms of the pro-
vincial Act of 1875 is illegal; (2)
that the protesting minority cf the
Synod of 1875, and its adherents,
are now the Presbyterian Church
of Canada in connection with the
Church of Scotland, and that cer-
tain ministers of the united churcli
who were members of the majority
had, by reason of the luiion, for-
feited all right to iwrticipate in the
benefits of the temporalities fund ;
and (3), to have an injunction
against the board, as then consti-
tuted, acting in prejudice of the
rights of the api)ellant, and others
beneficially interested in the .statu-
tory tr)ist of 1858. Ui)on the 31st
Dec. 1878 the appellant's apjdi-
cation was heard before Mr. Justice

.Tette, Avho mi,de an order for sum-
moning the respondents, and also
issued an tH^mwt injunction, which
the learned judge dissolved, nfter
fully hearing both parties, on the
31st Dec. 1879, and at the same
time dismissed the appellant's pcti-
tion, with costs. This decisior. was,
on appeal to the Court of Queen's
Bench for Lower Canada, affirmed,
in accordance with the o])iiiions
of the majority of the judges.

" The judgments of Mr. Justice
Jette in the court of first instance
[Superior Court, 27 L. C. J. 170
et seq.], and of Chief Justice
Dorion and Mr. Justice Monk in
the Court of Queen's Be>>.<h, are
based exclusively upon the comiw-
tency of the Quebec Legi.slatiue to
pass the Act, 38 Vict. c. 64., and the
consequent validity of that statute.
On the other hand, Mr. Justice
Ramsay and Mr. Justice Tessier
were of opinion that the a[)pellant
was entitled to an injunction on the
ground that the Act, 38 Vict. c. 64.,
was invalid, and that the majority
of the Presbyterian Church of
Canada in connection with the
Church of Scotland had no power
to communicate any interest in the
temporalities fund of that chiu'cli
to the religious bodies with wlioiu
thev had chosen to unite themsehes
in ■ 1875. Mr. Justice M'Conl
was of opinion, with his brethren
Ram.iay and Tessier, JJ., that the
Act of the Legi.slature of Quebec
was ultra vires, but he held that
the majority of the Presl)yti'riim
Church of Canada in connection
with the Church of Scotland had
undoubted power to admit into that
clnu'ch, as members of it, the three
religious bodies with whom they
had entered into union. Conse-
quently, the learned justice, though
differing in opinion from his
brethren Dorion, C. J., and Monk,
J., agreed with tliem in result.

"Whether the Legislature of
Quebec had power to pass the Act,
38 Vict. c. 64., is the question first
rcqtiiring consideration, because, if
it be answered in the affirmative,

-P T ,

B.N.A. ACT, s. 92 (13).— CO-EXTENSIVE POWEES. 277

the case of the appellant entirely
tails. The determination of that
{|iiestion appears to their Lordships
to depend upon the eonstruction
of cfrtJiin clauses in the British
Xortli America Act, 1867. There
i^ 110 room in the present case for
till' application of those general
|)rinciples of constitutional law,
which \vere discussed by some of
the jiulges in the courts below, and
which were ''ounded on in argu-
ment at the bar. There is really
no practical limit to the authority
of a supreme legislature except the
lack of executive power to enforce
its enactments. But the Legisla-
ture of Quebec is not supreme ; at
ail events, it can only assert its
supiemacy within those limits
which have been assigned to it by
the Act of 1867.

" The Act of the Parliament of
tile province of Canada, 22 Vict.
e. G6., was, after the passing of the
British North America Act, 1867,
continued in force within the pro-
viiiees of Ontario and Quebec, by
virtue of sec. 129 of the latter
statute, which, inter alia, enacts
that, except as therein other^vise
provided, all laws in force in Canada
at the time of the union thereby
effected shall continue in Ontario
ami Quebec as if the union had not
been made. But that enactment is
(jualified by the provision that all
MK'li laws, with the exception of
tiiosf I'uacted by the Parliaments
of Great Britain, or of the United
Kingdom of Great Britain anil
Ireland, shall be subject ' to be
rein'aled, abohshed, or altered by
tile Parliament of Canada or by
the legislature of the respective
province, accoriUng to the authority
of the Parliament or of that legis-
lature under this Act.' The powers
confened by this section upon the
provincial legislatures of Ontario
and Quebec to repeal and alter the
statutes of the old Parliament of
the province of Canada, are matle
precisely co-extensive with the
jwyers of direc^ legislation with
which these bodi .\ are invested by

the other clauses of tlie Act of 1867. Key. Eobebt
In order, therefore, to ascertain Dobie t. Boahb
how far the provincial legislature °EBirNCimHcn.
or Quebec had power to alter and
amend the Act of 1858, incorporat-
ing the board for the management
of the temporalities fund, it becomes
necessary to revert to sees. 91 and
92 of the British Nortn America
Act, which enumerate and define
the various matters which are
within the exclusive legislative
authority of the Parliament of
Canada, as well as those in relation
to which the legislatures cf the re-
spective provinces have the exclu
.sive right of making laws. If it
could be established that in the
absence of all previous legislation
on the subject the Legislature of
Quebec would have been authorized
by sec. 92 to pass an Act in terms
identical with the 22 Vict. c. 66.,
then it woidd follow that the Act
of the 22nd Vict, has been validly
amended by the 38 Vict. c. 64. On
the other hand, if the Legislature
of Quebec has not tlerived such
power of enactment from sec. 92,
the necessary inference is that the
legislative authority required, in
terms of .>*ec. 129, to sustain its
right to rejieal or alter an old law
of the Parliament of the province
of Canada, is in this case wanting,
and that the Act, 38 Vict. c. 64.,
was not intra vires of the legisla-
ture by which it was passed.

" The general scheme of the
B. N. A. Act, 1867, and, in par-
ticular, the general scope and effect
of sees. 91 and 92 ha\e been so
fully coumiented upon by this
board in the recent ca.ses of The
Citizens' Insurance Company of
Canada v. Parsons, and The
Queen Insurance Company r. Par-
sons [4 S. C. E. 215 ; in P. C. 26
Nov. 18S1, 7 App. Cas. 96; 51 L.
J. P. C. 11; 15 L. T. 721; see
above], that it is unnecessary to sjiy
anything further upon that subject.
Their Lordships see no reason to
modify in any respect the princi-
ples of law upon which they pro-
ceeded in deciding those cases ; but

ri.'Ui .

278 B.N.A. ACT, s. 92 (13).— INTERFERING WITH DOM.

TBUIAN CUURCII.

Jl, J

Eev. Rodert in determining how fur thesi- prin-
DoDiB V. 130AUD (.jpigg ,^ppiy to ti,(> present cjise, it
oi iiESD\- jg necessiuy to couniclerto wbut ex-
tent the circumsttiuces of each case
are identical or similar.

" The case of The Citizens' In-
surance Company of Canada r.
Parsons comes nearest in its cir-
cumstances to the present, as in that
case the ap[)ellaut company was in-
corporated by, and deri\cd all its
stiitutory rights and i)rivileges from,
an Act of the province of Canada,
whereas The Queen Insurance
Com[)any was incorporated under
the i)rovisions of the British Joint
Stock Companies Act, 7 and 8 Vict,
c. 110. In both cases the validity
of an Act of the Legislature of
Ontario was impeached on the
ground that its provisions were
ultra vires of a provincial legisla-
ture, and were not binding unless
enacted by the Parliament of
Canada. It was contended on
behalf of the Citizens' Insurance
Company that the statute com-
plained of Wiis invalid in res[)ect
that it virtually repealed certain
rights and privileges which they
enjoyed by virtue of their Act of
incorporation. That contention
was rejected, and the decision in
that case would be a precedent
fatal to the contention of the appel-
lant, if the provisions of the Ontario
Act, 39 Vict. c. 2L,and the Quebec
Act, 38 Vict. c. G4., were of the
same or substantially the same
character. But upon an examina-
tion of these two statutes, it be-
comes at once apparent that tiiere
is a marked difference in the
character of their respective enact-
ments. The Ontario Act merely
l)rescribed that certain conditions
should attach to every i)olicy,
entered into or in force, for insuring
property situate within the pro-
vince against the risk of fire.
It dealt with all corporations, com-
panies, and individuals alike who
might choose to insure pro[)erty in
Ontario — it did not interfere with
their constitution or status, but
retpiiied that curtain reasonable

conditiuus should be held as iu.ser-
ted in every contract made bvtln'in.
The Quebec Act, 38 Vict.'c. Ul.|
on the contrary, deals with a single
statutory trust, and interferes di-
rectly with the constitution uiul
privileges of a corporation crciitcd
by an Act of the province of
Canada, and having its corponiti'
existence and corporate rights in
the i)rovnice of Ontario as well ii.>5
in the province of Quebec. Tiic
l)rofessed object of the Act, and the
effect of its provisions, is not to iiii-
l)ose conditions on the dealings of
the corporation with its tuiids
within the pro\ince of Quebec, but
to destroy, in the first place, the
old corporation, and create a new
one, and, in the second jdaw, to
alter materially the class of persons
interested in the funds of the eoi-
2)oration.

" According to the principles
established by the judgment of this
board in the cases already referred
to, the first step to be taken with
a view to test the validity of an Aei
of the provincial legislature is to
consider whether the subject-mutter
of the Act falls within any of the
classes of subjects enumerate<l in
sec. 92. If it does not, then the
Act is of no validity. If it does,
then these further questions iiiiiy
arise, namely, ' whether, nctwith-
standing that it is so, the subjeet
of the Act does not also fall witiiin
one of the enumerated classes of
subjects in sec. 91, and wheuicr
the power of the provincial legisla-
ture is or is not thereby overborne,'

"Does then the Act 38 Vict.c. 04.
fall within any of the classes enu-
merated in sec. 92, and tlieiihy
assigned to the provincial legisla-
tures? Their Lordships are of
opinion that it does not ; and cou-
se(iuently that its enactments aio
invalid, and that the constitution
and duties of tlie board for nian-
aging the temporalities fund must
still be regulated by the Act of 1858.

" It was contended for the le-
.spondeuts that the Quebec Act of
1875 is within one or more of liie.s.'

B.N.A. ACT, s. 92 (13).— MATTERS JfOT DIVISIBLE. 279

three classes of subjects enume-
rated in sec. 92 : —
' (7.) The establishment, main-
tenance, and management
of hospitals, asylums,
chai'ities, and eleemosy-
nary institutions in and
for the province other
than marine hospitals.'
' (II.) The incorporation of com-
panies with provincial
objects.'
' (13.) Property and civil rights

in the province.'
"The most plausible argument
tor the respondent was founded
upon the terms of class (13), but
it ba.s failed to satisfy their Lord-
siiips that the statute impeached by
the appellant is a law in relation to
property and civil rights within the
province of Quebec.

"The Quebec Act of 1875 does
not, as lias already been pointed
out, deal directly with property or
contracts affecting property, but
with the civil rights of a corpora-
tion, and of individuals, present or
future, for whose benefit the cor-
[wration was created and exists.
If these rights and interests were
capable of division according to
their local position in Ontario and
(Quebec respectively, the legislature
of each province v»"ould have power
to deid with them so far as situate
within the limits of its authority.
If, by a single Act of the Domi-
nion Parliament, there had been
constituted two separate corpora-
tions, for the purpose of working,
the one a mine within the provinw'
of Upper Canada, and the other a
mine in the province of Lower
Canada, the Legislature of Quebec
would clearly have had authority
to repeal the Act so far as it re-
lated to the latter mine and the cor-
poration by which it was worked.
"The Quebec Act 38 Vict. c. 64.
does not profess to repeal and
Hmend the Act of 1858, only in so
fur as its provisions may apply to
or be operative within the province
of Quebec, and its enactments are
apparently not framed with a view

to any such limitation. The reason
is obvious, and it is a reason which
appears to their Lordships to be
fatal to the validity of the Act.
The corporation and the corporate
trust, the matters to which its pro-
visions relate, ai'e in reality not
divisible according to the limits of
provincial authority. In every
case where an Act applicable to
the two provinces of Quebec and
Ontario can now be validly re-
pealed by one of them, the result
must be to leave the Act in full
vigoui within the other province.
But, in the present case, the legis-
lation of Quebec must necessarily
affect the rights and status of the
corporation as previously existing
in the province of Ontjirio, as well
as the rights and interests of indi-
vidual corporators in that province.
In addition to that, the fund ad-
ministered by the corporate boarti,
under the Act of 1858, is ludd in
perpetuity for the l)enefit of the
ministers and members of a church
having its local situation in both
provinces, and the proportion of
the fund and its revenues falling
to either province is uncertain and
fluctuating, so that it would be im-
possible for the Legislature of
Quebec to appropriate a definite
share of the corporate funds to
their own province without trench-
ing on the rights of the corpora-
tion in Ontario.

" These observations regarding
class (13) apply with equal force
to the argument of the respon-
dents founded on classes (7) and
(11). Even assuming that the
temporalities fund might be cor-
rectly described as a ' charity ' or
as an ' eleemosynary institution,' it
is not in any sense established,
maintained, or managed ' in or for '
the province of Quebec; and if
the lx)ard, incorporated by the Act
of 1858, could be held to be a
' company ' within the meaning of
class (11), its objects are certainly
not provincial.

" The respondents further main-
tained that the Legislature of

Rev. Robert
dobie v. eoaiid
OP PnEsnv-

TEKIAN ClIUHCU.

280

B.N.A. ACT, s. 92 (13).— JUNCTA JUVANT.

i| rir :i

Rev. Robert Quebec had power to pass the Act
DoBiB V. Board of 1^75^ Jq i-espeet of these special

ofPresby- ch-cumstances, (1) that the domi-
tebianCuukcii. ., , • • 1 aj f xi

cue and principal omce 01 the

Temporalities Board is iu the city
of Montreal ; and (2) that its funds
also are held or in\ ested within the
province of Quebec. These facts
are admitted on record by the ap-
pellant, but tliey do not affect the
question of legislative power. The
domicile of the corporation is
merely forensic, and cannot alter
its statutory constitution as a board
in and for the provinces of Upper
Canada and Lower Canada. Neither
can the accident of its funds being
invested in Quebec give the legisla-
ture of that province authority to
change the constitution of a cor-
poration with which it would other-
wise have no right to interfere.
When funds belonging to a cor-
poration in Ontario are so situated
or invested in the province of
Queliec, the Legislature of Quebec
may impose direct ta.xes upon them
for provincial purposes, as autho-
rized by sec. 92 (2), or ma\ impose
conditions upon the transfer or re-
alization of such funds; but that
the Quebec Legislature shall have
power also to confiscate these funds,
or any part of them, for provincial
purposes, is a proposition for which
no warrant is to be found in the
Act of 1867.

" Last of all it was argued for
the respondents that, assuming the
incompetency of either provincial
legislature, acting singly, to inter-
fere with the Act of 1858, that
statute might be altered or repealled
by their joint and harmonious
action. The argument is based
upon fact, because, in the year
1874, the Legislature of Ontario
passed an Act (38 Vict. c. 76.),
authorizing the union of the four
churches, and containing provisions
in regard to the temporalities fund
and its board of management, sub-
stantially the same with those of
the Quebec Act (38 Vict. c. 62.)
already referred to. It is difficult
to understand how the maxim

jiincta juvant is applicable here
seeing that the power of the pro.
vincial legislature to destroy a law
of the old province of Canada is
measured by its capacity to recon-
struct what it has destroyed. If
the Legislatures of Ontario ami
Quebec were allowed jointly to
abolish the board of 1858, which
is one corporation in and for both
provinces, they could only create in
its room two corporations, one of
which would exist in and for On-
tario and be a foreigner in Quebec,
and the other of which would be
foreign to Ontario but a domestic
institution in Quebec. Then the
funds of the Ontario corporation
could not be legitimately settled
upon objects iu the province of
Quebec, and as little could the
funds of the Quebec corporation
be <levoted to Ontario, whereas the
temporalities fund falls to be ap-
plied either in the province of
Quebec or in that of Ontario, and
tiiat in such amounts or proiioi-
tious as the needs of the Presby-
terian Church of Canada in con-
nection with the Church of Scot-
land, and of its ministers and
congregations, may from time to
time require. The Parliament of
Canada is, therefore, the only legis-
lature having power to modify or re-
peal the provisions of the Act of 1858.

" On the assumption that the
Legislature of Quebec had not
power to alter the provisions of the
Act 22 Vict. c. 66., the respondents
still maintain that the appellant
cannot prevail in the present action,
in respect that he has not sufficient
interest to entitle biin to sue, and
that, e\ en if he has such interest,
he is barred from challengiug the
Act of 1875 by the resolutions of
the majority of the Synoc'i, which
are .said to be binding upon hiui.

"As regards the first of these
objections, it is true that the a\)-
pellant's right to an annuity from
the temporalities fund is reserved
in its integrity by the Act which
he impugns, and his own pecuniar)
interests are, therefore, not affected

'•L» . *. >. ^4-rg'!vr1m,9tMwm**0Mt^\ >»1*1 "■*

B,N".A. ACT, «. 92 (13).— CHURCHMEN & PRECEDENTS. 281

by its provisions. But the appel-
lant is not u mere annuitant, and
bis right to an annual allowance
does not constitute h's only con-
nection with the fuml. He is like-
wise one of the cominutors, — one
of the persons by whom the fund
was contributed for the purjwses of
the Act 22 Vict. c. 66.— and in
that capacity he has a plain inte-
rest, and consequent right, to insist
that the fund shall be administered
in strict accordance with law.

" The second objection is deriveil
from the resolutions in favour of
union carried by the majority of
tlie Synod of the Presbyterian
Church of Canada, in conne<!tion
with the Church of Scotland, upon
the 14th June 1875. The QucIk-c
Act (38 Vict. c. 64.) deals with the
temporalities fund in conformity
with these resolutions ; and it is
the contention of the respondents
that the appellant is bound by the
resolutions, and cannot, therefore,
impeach the statute which gives
effect to them. That is a startling
proposition. If the Legislature of
Quebec was incompetent to enact
the statute of 1875, it is not easy
to understand how the Synod could
luive power, either directly or iu-
diiectly, to validate that Act, or to
set aside the enactments of 22 Vict,
c. 66. The respondents do not,
indeed, allege that the Synod was
possessed of legislative powers, but
they assert that the majority, by
resolving that the fund, settled
under the Act 22 Vict. c. 66., should
in future be administered accortling
to a scheme inconsistent with the
provisions of that Act, bound all
its members to acquiesce in that
new course of administration, and
to abstain from enforcing the
sUitute law of the land. It nuiy
be doubted whether a court of law
would sustain such nn obligation,
even if it were expressly under-
t^ikeu ; but it is unnecessary to dis-
cuss that point, because their Lord-
ships are of opinion that the re-
spondents have failed to establish
tiiat the appella.it, us u membei- of

the Presbyterian Church in con-
nection with the Church of Scot-
land, undertook any obligation to
that effect.

"Whether the appellant is bound,
as alleged by tlie respondents, is, in
this case, a question relating exclu-
sively to civil rights, and must, there-
fore, be dealt with as matter of con-
tract between him and the Synod or
church of which he was admittedly
a member at the time when the
resolutions in favour of union were
carried. In the case of a non-
estiiblished Presbyterian Church,
its constitution, or in other words
the terms of the contract under
which its members are associated,
are rarely embodieil in a single
document, and must, in part at
least, be gathered from the pro-
ceedings and practice of its judi-
catories. Every person who be-
comes a member of a church so
constituted must be hehl to have
satisfied himself in regard to the
proceedings and practice of its
courts, and to have agreed to sub-
mit to the precedents wliich these
establish. The respondents were,
therefore, justified in referring to
the minutes of the Synod from 1831
to 1875, for the purpose of showing
the extent of the power vested in
nuijorities by the constitution of
the church. The minutes, which
were founded upon by coimsel for
the respondents, afford abundant
evidence to the effect that, in all
uuitters which tlu; .Synod was com-
petent to detil with and determine,
the will of the majority as ex-
pressed by their vote wan biuding
upon every member of the Synod,
a proposition which the appellant
did not dispute. But they contain
nothing whatever to show that, in
cases where the administration of
church property was regulated by
statute, the Synod ever asserted its
right to set aside that legal coui.sc
of administration, and to restrain
dissentient members from challeng-
ing any departure from it.

*' Their Lordships are, therefore,
of opinion that the appellant is en-

Rev. Robert
cobie v. boabd
OP Presuy-

TEia.\N ClIUHtU

: y

?! f

I' ft*

1 1

282 B.N^.A. ACT, s. 92 (13).— GOVERNMENT DEPOSITS.

Rev. Robert
DoBiE V. Board
OF Presdy-
TERi.VN Church.

titled to have it ileclarod that, not-
withstanding the provisions of the
Quebec Act of 1875, the constitu-
tion of the board and tlic athninistra-
tion of the temporalities fund arc
still governed by the Canadian Act
of 1858, and that the respondent
board is not duly constituted in
terms of that Act ; and also to
have an injunction restraining the
respondents from paying away or
otherwise disposing of either the
principal or income of the fund.

" The a[)pellant, in his applica-
tion to the court below, asks a
declaration to the effect that the
fund in question is held by the re-
spondents, ' in trust, for the benefit
of the Presbyterian Ciiurch of
Canada, in connection with the
r \ of Scotland, and for the
;i' of the ministers and mis-
"'- >vbo retain their connec-
tion therewith, and who have not
ceased to be ministers thereof, and
\Qi ;io other l)"v•^ose whatever.' It
is obv. tsly J ,wj.()edi>mt to make
any declaratio'i i,f that kind. It
would be a mere repetition of the
language of the Act of 185S, by
which the trust is regulated, and
would decide nothing as between
the parties to the present suit.

" The appellant also seeks to liaxe
it declared that six reverend gentle-
men who, at and prior to the
Union of 18-75 were members of
the Presbyterian Church of Canada
iu connection with the Church of
Scotland, have ceased to possess
that character, and that they have
no right to the benefits of the teui-
poralties fund ; and he concludes
for an injunction against the re-
spondent corporation making any
payment to them. Their Lordships
are of opinion that these are
matters which cannot be compe-
tently decided in the present action.
Their decision depends upon the
answer to be given to the question,
which church or aggregate of
churches is now to be considered
as being or representing the Presby-
terian Church of Canada in con-
nection with the Church of Scot-

land, within the meaning of tiie
Act 22 Vict. c. (50 ? But the two
churches which appear from tlic
record to have rival claims to that
position are not represented in this
action ; and, of the six ministers
whose pecuniai'y interests are as-
sailed by the appellant, he has only
called one, the Reverend Dr. Cook,
as a respondent. That question
between the churches must be du-
iermined somehow before a consti-
tutional board can be elected ; and,
unless the Dominion Pailiameut
intervenes, there will be ample
opportunity for new and protnictcl
litigation. It cannot be determined
now, because the appellant has not
asked any order from the Court in
regard to the formation of the now
board, and has not made the indi-
viduals and religious bodies in-
terested parties to this cause.

" Substantial success being witii
the appellant, he must have his
costs as again.'<t the respondents.
But their Lordships are of opinion
that neither the respondents own
costs, nor those in which they are
found liable to the appellant, ought
to come out of the trust fund, which
they are holding and administering
without legal title. The appellant's
costs must therefore be paid by
the members of the respondent
corporation as individuals.

" Their Lordships will, accord-
ingly, humbly advise Her Majesty
that the judgments under appeal
ought to be reversed, and that the
cause .should be remitted to the
Court of Queen's Bench, Lower
Canada, with directions to that
court to give effect to the decla-
rations recommended by this Board,
and also to issue in the appellant's
favour an injunction and decree
for costs as directed by this
Board."

Exchange Bank of Canada
V. The Queen. In the Q. B.
Quebec, 2 April 1885, 1 Mon.
Q. B. 302, in which Court Monk,
Ramsay, and Baby, JJ. [Dorion,
C.J., disoenting], reversed two de-

B.N.A. ACT, s. 92 (13).— CROWN PRIVILEGE.

283

tisious of Mathieu, J,, Deo. 1, IHHl,
ill tlie Superior Court, iu which he
ivjectt'd the ehiiui of the Goveru-
iiuiit, otherwise the Queen, to he
paid by right of prerogative ii sum
of money, the amount of a Goveru-
iiu'iit deposit iu tlio Exehange
Bniil<, which had gone into licpii-
(liitioii. The decision of the ma-
jority, delivered by Ramsay, J., of
tlic Q. B. (Quebec, was reversetl iu
thf I'. C, 18 Feb. 18HG; II App.
Cas. 157; 55 L. J. P. C. 5;
oi L. T. H02 ; 30 L. C. J. 194.
[Sec full judgment below.] The
lollowiug facts are taken from the
jiidgiiieut of Dorion, C.J., the dis-
H'litiug judge in the Q. B. Quebec,
1 Mou. Q. B. 302; and P. C.
Printed Papers, p. 1 37: — " In Sept.
I8f*3, the Exchange Bank of
Canada was put in licpiidation
uiuk'r the jtrovisious of the Act
15 Viet. (Dom.) c. 23., and A.
Campbell, F. B. Mathews, and
T. Darling were appointed liqui-
dators. On 15 March 1881, the
Attorney-General for the [)roviuee
of Quebec filed with the liipii-
liatois, in the name of the Queen, a
claim against the estate for the sum
of .'<7<i,000, being the amount
of a deposit made with the bank
8 Sept. 1883, and demanded
that the payment of principal and
interest be i)aid by privilege out of
tiie assets of the bank. L. H.
Massne, one of the respondents, and
a cii'ditor for a sum of .S20,000,
ilcposited with the bank 7 Feb.
1883, ami the Merchants' Bank,
another creditor for a sum of
83,050, as holder of unredeemed
bills issued by the Exchange Bank,
having contested the privilege
claimed by Her Majesty to be
paid her claim by preference to
other creditors out of the assets to
be distributed to the liquidators,
on 10 March h!84, the Attorney-
General for the Dominion of Canada
filed another claim on behalf of
HtT Majesty for a sum of
8237,840.27, of which §200,000
were for two loans of 8100,000 each
made by the Go\ eminent of Canada

to the Exchange Bank, at the rate Exciiangb
of 5 per cent, per annum, and "•^'"' °p

L^.o«r o./\ OPT 1? 1- ADA i. riiE

.^37,810.27 were for an ordinary Q„j;p„_
(U'i)osit, and he also demanded that
the hist chiim in principal and
interest be paid by privilege and
preference o\er the other creditors
out of the assets of the bank.
Massue, the Merchant.s' Bank, and
Wilmer C. Wells, another creditor
of the Exchange Bank, have con-
tested the privilege claimed by
Her Majesty for the payment of
the last claim. The licpiidators
have been made parties to these
proceedings, hut have taken no
[tart in the action. There are no
dilliculties about the facts. The
several claims made by the parties
are admitted, as well as their origin.
The only disputed points are —
1st, Whether the claim of the
Crown on behalf of the Dominion
of Canada and of the province of
Quebec, and which will absorb a
large portion of the assets of
the insolvent Exchange Bank, are
to be i)aid first, and in preference
to all the ordinary creditors of the
bank ; 2nd, Whether they are to
be paid iu preference to the Mer-
chants'Bank'sclaimfor unredeemed
bank bills, which by the Banking
Act, 43 Vict. (Dom.) c. 22. s. 12,
is declared in case of insolvency
to be a first charge on the assets of
bankrupt. The court below held
that the Government of the pro-
vince of Quebec and the Dominion
Government were mere ordinary
creditors, having no privilege to be
paid by preference. From this
judgment two appeals have been
instituted, one on behalf of the
province of Quebec, and the other
on behalf of the Dominion of
Canada, but both iu the name of
Her Majesty. The appellants
(respondents in Privy Council)
claim to have a privilege — 1st,
By virtue of the rights and i)rero-
gatives of the Crown rs they ex-
isted at the time this country was
ceded to Great Britain, and which
had then become part of the public
law of tiie laudj 2nd, By virtue of

284 B.N. A. ACT, s. 92 (13).—" COMPTABLES " TECHNICAL.

exchanqe
Bank ok Can-
ada I'. TlIK
QCKK.N.

!''

::! ^:l;

the civil law in t'orcL' iu this
country; 3rd, Under the provissions
of art. 611 of the Code of Civil
Procedure. The fir.st part on which
the appellants relied has alrejidy
been decided in the cases of Attor-
ney-General V. Black, Stuart's
Repts. 324; Monk v. Oniniet, 22
Dec. 1874, Q. P. Quebec, 19
L. C. J. 71 ; and Onimet v. Mar-
chand, 20 March 1874, Sup. Ct.,
5 Kev. Legale, 361. In these
sevei'al eases it has been uniformly
held that the claims and privileges
of the Crown against its debtors
did not form part of the higher or
<'ssential prerogatives of the Crown,
which had become part of the
public law of the land when the
country was ceded to Great Britain,
and that they are governed by the
law in force in the province relating
lO civil matters. In addition to
the uniform jurisprudence of our
courts on this point, we may add
that the rule has been repeatedly
recognised and acted upon by the
legislation of the province. Bv
the arts. 6, 1989, 1994, 2032, 20H6,
of the Civil Code, and by the
several statutes referred to in art.
607 of the Code of Civil Proce-
dure, the privileges and hypothecs
of the Crown on moveable and im-
moveable property of its debtors
have been determined and regu-
lated, and these several pro\ isions
of our law" which were in force
when the B. N. A. Act was passed
were continued in force by the
129th section of this Act. The pre-
rogatives of the Crown have, there-
fore, nothing to do with the ques-
tion. Privileges on moveable pro-
perty are general when they attach
to the whole of the moveable pro-
l)ert;- of the debtor, and specially
when they only affect some parti-
cidar objects (art. 1993, and last
paragraph of art. 1994, C. C).
There are only two articles in the
Civil Code which have a special
reference to the privileges of the
Crown The first is art. 1989,
which refers, in general terms, to
the special privileges secured to the

Crown by the laws relating to
customs, (luties, and the other dis-
positions contained in the specinl
statutes concerning matters ol'
public administration. The otlier,
art. 1994, which, after providing
that the several pri\ ilegcs therein
enumerated shall take precedeiito
in the ordei' they are given, men-
tions 10 clas.ses of privileges on
mo\eable property, the 10th and
last being ' for the claims of the
Crown against persons accountablu
for its moneys.' In the Freneli
version the words are, ' La Con-
ronne pour creances contre ms
comptables.' The word 'conip-
table,' as applieil to the debtors of
the Crown, has in the French law
a technical meaning. It is used to
describe the particular officers who
had the collection and maiuigement
of the Crown revenues, and were
accountable for the .simie ['Nouveau
Uenisart, Vo. Comptable']. In
France the king had a privilege on
all the property of his comptables
for any balance of moneys for which
they were accountable as such
(Edit of 1669) ; but the privilege
did not apply to other claims of
the Crown. This is clearly estab-
lished iu the following passages of
the 'Nouveau Denisart, Vo. Conip-
tjible,' s. 3, No. 11, wherein the
authors of that valuable collection
say, ' No. 11. II ne faut pas confon-
dre les creances que le Roi exercc
contre un comptable en qualite dc
comptable avec les creances person-
nelles qu'il peut avoir contre le
meme particulier. Par arret ilu
14 May 1748, le Conseil a juge
entre le controleur des bons d'etat
et les fermiers generaux que ceux-
ci doivent etre payes des sonimts
dues par le Sieur Bouvelais, rece\ eur
du tabac a Paris, pour reliquat de
eompte dc sa recette, sur le prix
provenant de la vente de ses effets,
par privilege et preference au Roi,
creancier du meme Bouvelais a
cause d'un pret fait k ce particulier
pour favoriser I'entreprise de la ver-
rerie de Sfevre.' The controleur des
bons d'etut represented the claim

■MB

B.N.A. ACT, 9. 92 (13).— INTERPRETATION OF CODES. 285

of tliP king, while tho fprmior.i
ffC'iu'Ttuix t'xoreiscd thoir clnim as
(•('SMonimires of the (hities on to-
liiKCO, wliich (hitios constituted a
privileged claim. This wame arret
is also cited in the work known as
' Old DenisartjVo.Coniptable,' with
somewhat greater (h'velopments. It
is evident, that it is in the sense
iittril)nte(l to it in the French law,
tliiit the word 'Comptahle' has
l)pen used in art. 1994 of the Civil
Code, which is not given as new
iiiw, but as being in accordance with
the rules and principles which pre-
vailed before the code as to the
caus"s of preference which gi\e rise
to privileges among creditors. By
tiiis last article the privilege of the
Crown, when not coming within
tlie class of special privileges men-
tioned in art. 1989, was restricted,
ns it was before the code, to claims
arising out of the collection or
management of the revenues of the
Crown by ' Comptables,' that is
bv such persons as were account -
alile for the same, and it did not
apply to claims for loan of money,
or deposits, or claims founded upon
ordinary contracts. This privi-
lege, which is a general privilege
affecting all the moveables of the
Comptables, was placed the last in
the order of preference, among the
otiier general privileges, and this is
the rank which it always held in
the French legislation [Pothier,
Proc. Civile, ed. Bugnet, p. 22G,
2d al. ; Troplong, Priv. and Hyp.
Xo. 39]. There being no other
article in the code, nor any other
provision of law allowing to the
Crown a general privilege, except
this article 1994 of the Civil Code,
the second pretension of the appel-
lant, that under the civil law, as ex-
isting in this country, the Crown is
entitled to be paid by privilege the
amount of its claims out of the
assets of the Exchange Bank, i.s
without any foundation. The 3rd
and last proposition urgeil on
behalf of Her Majesty is, that
under art. 611 of the Code of Civil
Procedure, all the claims of the

ADA t'. The

QCEK.V.

Crown, whatever may be their Kxciianob
nature or origin, are privileged, ^■*'"' °^, ^'^^'
and should be paid m preierenee to
all other creditors. This article
provides that, 'In the absence of
any sjM'cial privilege, the Crown
has a preference over chirographic
creditors for sums due to it by the
defendant.' It is unfortunate that
terms so vague and so general have
been used in connection with this
difficult suliject. The simple
reading of this article suggests im-
portant difficnlties, and .shows that
it is most ambiguous. Is it, in the
absence of rtny special privilege
whatsoever, or only in the absence
of any special privilege of the
Crown, that the Crown has a juefer-
ence over chirograi)hic creditors ?
Does that preference exist over all
chirographic creditors, whether they
have i)rivilege or not ? And, lastly,
does the preference exist only for
sums due by a defendant, and is
ihero no preference where, as in
this case, there is no defendant ? "

After citing Guyot, Vo. Chiro-
graphaire, s. 7, his Lordship con-
tinued : " Is, then, the preference to
be given to the claims of the Crown
under art. 61 1 to supersede all other
privileges, even those which from
the remotest period have Ijeen with
us considered sacred, such as the
l)rivileges for funeral expenses and
of physicians, and of servants'
wages ? I am glad to find we are
all agreed on this, that the words
' chirographic creditors ' in this par-
ticular do not apply to all cliiro-
graphic creditors, but only to the
ordinary chirographic creditors who
ha\ e no privileged chums. We are
also all of opinion the word 'de-
fendant ' in this article is to be in-
terpreted as meaning the debtor
of the claim of the Crown, whether
such debtor be a defendant or not.

" All this shows that this short
article is not a very clear one, and
that, to make sense of it, the process
of interpretation must be applied
to it to a considerable degree, for
however obscure or insufficient a
law may be, we cannot refuse to

280

B.N. A. ACT. H, 92 (13).— HISTORY OF CODES.

1 I

exciianok
JUnk op C.vx-

AD.V i: TUK
QlBKN.

ndjiidicnto [art. 11. C. C.],nii(l it is
our duty to intciprft a doul)tt'ul or
ainbigiioii.t Inw so as to fulfil the
intention of the legislature, and to
olitain the object for which it was
pa.ssed [art. 12. C. C.]. Another
rule of interpretation applvinfj to
the Civil Code and the Code of Civil
Procedure as laid down by the Lords
of the Privy Council in Carter r.
Molson, April 18, IHHl), H App.
Cas. 530; 52 L. J. P. C. 10 j
4i) L. T. 83, is that, although
the Code of Civil Procedure has
come into forces later (10 months)
than the Civil Code, tlie two form
part of one general system, and
must .stand and be construed
together, as if they formed but one
code. The object of the Civil
Code is to fi.K the rules and princi-
jjles by which the rights of indi-
viduals are to be determined : that
of the Code of Civil Procedure is to
ostabli.xli the rules for the exercise
of those rights before the courts of
justice. 'J'herefore, whenever a
provision is found in the Civil Code,
the intention of the legislature,
must necessarily have been thereby
to confer or determine a right, and
when it is found in the Code of
Civil Procedure, the intention must
have been to provide a remedy for
enforcing rights, and not to alter
existing rights or to confer addi-
tional ones.. There is an incident
with reference to this art. till
benring upon the intention of the
legislature which has some signifi-
cance. The code was prepared
under a .statute, which authorized
the commissioners to embody in
the Code of Civil Procedure for
Lower Canada all the laws then in
force in the province relating to
procedure in civil matters and cases,
and to suggest such amendments as
they thought desirable, with their
reasons, and to report to the
Governor. C. S. L. C. c. 2.
sees. 5, 6, 8. The code so prepared
was submitted to the legislature
and adopted with such amendments
as were tliought necessary, and
referred back to the commissioners,

under the statute 20 & .30 Vict.
c, 25., to incorporate the ameiid-
mcnts with the code, the commis-
sioners being authorized to alter
the numbering of titles and mp-
ticles of the code or their order,
to correct any error, whether dl'
connnission or of omission, or niiv
contradiction or ambiguity, in tlie
original roll, A»/ wif/ioiiti/iinii/ini/
ifs rffrct, which lloll so corrected,
being signed by the Governor luiil
countersigned by the i)ro\in(iiil
seci'ctary or assistant, and deposited
with the clerk of the Legislative
Council, would become law n.s
the Code of Civil Procediu'c ef
Lower Canada, from a <lay to lie
fixed by proclamation. When the
statute was passed, the provision,
now comprised in art. (ill, wns
neither in the original Roll nor in
the amendments adopted by tlie
legislature. It was when the com-
missioners were embodying in the
original Poll the amendments
adopted by the legislature, and
making the necessary corrections
under the authority they had re-
ceived by statute, that art. Gil was
introduced into the code. It cannot
be .said that the legislature intended
to alter, not only the provisions of
th(> Code of Civil Procedure, but
also those of the Civil Code, by an
addition made under these circum-
stances, nnd of which it knew
nothing, nor is it conceivable that
the commissioners themselves, in
direct contravention of the instruc-
tions they had received, not only to
alter the effect of the code us
ado])te<l by the legislature, .'ihouid
have intentionally destroyed the
whole economy of art. 109-1 of the
Civil Code on privileges, by intro-
ducing into the Code of Civil Pro-
cedure a disposition foreign to its
object, and creating a most extra-
ordinary and important jirivilege in
favour of the Ciown. The absence
of any intention to change the law
in the manner it is pretended it
was changed ])y art. 611 is made
more numifest, if possible, by the
fact thill on the very day that the

' •i^ »rFl'y'«*-»'«t*w-r?T***' ^'

B.N.A. ACT, s. 92 (13).— CROWN & OTHER CREDS. 287

legislnturo adopted the Code of Civil
Piocodiiiv iind its ainendinciitH
iiiid directed tlie eoiumiHwioncrs to
iniiiie no correction whieli would
idtcr its efFect, it passed r .,i..tute,
flic 29 & 30 Vict. c. 13., by which it
aluilished the privileges attiiched to
the claims of the C 'rown in Ui>per
Ciumda, and in that respect placed
tlic claims of the Crown on the
sainc footing as these of private
individuals. This i.s, perhaps, an
unimportant circumstance, but still
it is another instance that the h'gis-
lature coidd have no intention to
extend by the Code of Civil Proce-
dure the privileged claims of the
Crown established by the Civil
Coile." His Lordship then said
tlirre were several articles in both
codes on this very cpiestion of
privilege which bore intrinsic evi-
dence that there was no intention
of limiting or extending by the
Code of Civil Procedure the privi-
leges established bv the Civil Code,
and referred to art. 2008 of Cnil
Code and art. 605 of the Code of
Civil Procedure. " Apart from the
question of intention, which, ac-
cording to our art. 12. C. C, is the
primary and controlling rule of
interpretation of our laws, is there
anything in art. 611 to repeal or
supersede the privileges of the
Crown against its Comptables, and
to substitute another and more ex-
tended principle in its place ? As
we have already seen, the two codes
nuist be construed together, and by
pliicing in juxtaposition the several
articU'S of both referring to the
pri\ileged claims of the Crowu, we
siiall be able to arrive at their exact
meaning. The first of these articles
is 1980, which, in general terms,
refers to statutes creating special
privileges in favour of the Crown.
Art. 607 of the Code of Civil Pro-
cedure completes the article by
eniunerating the subjects to which
the.se statutes refer. Then art. 1994
C. C. confers on the Crown a
general privilege over all the pro-
perty of the Comptables. By
adding to this article the provi-

sions of art. 611 of the Code
of Civil Procedure, the two will
read as follows :— Art. 1991. C. C.
' The claims which carry a privilege
upon moveable property are the
I'ollowing, and when several of them
e(un(> together they take precedence
in the following order, &c. : —
10. Tiu^ chiims of the C^rown
against persons accountable for its
moneys.' Art. Oil. C. C. P. 'In
the absence of any special privi-
lege the Crown has a preference
over chirographic creditors for sums
due to it by the defendant.' The
meaning of these two .several arti-
cles is that the Crown, by art. 1989,
ha., special privileges aftecting par-
t.'. .ar property, whi(di, according
to art. 607, are to be paid by
|)reference over all other creditors
on the property subject to them.
The art. 1989 establishes the riglit,
and art. 607 the rank. Then
art. 1994 gives to the Crown a
general privilege against its Comp-
tables, that is a i)rivilege attaching
to all the proi)erty of its Comptables,
which in its order comes after all
the other privileged claims; and
art. 611, which is a mere rule of
procedure, a direction to the officers
of the court how to distribute the
moneys levied (see title of the .sec-
tion and paragraph in which it is
placed), says : ' In the absence of any
sjiecial privileges (that is in the
case that the Crowu has no special
privilege, for if it had any its claim
shoidd, according to arts. 1989 and
607, be paid out of the proceeds of
the property, subject to such special
privileges in preference to all other
creditors) the Crown has no prefer-
ence over chirographic creditois
(that is the ordinary chirographic
creditors) for sums due to it by the
defendant' (that is by the debtor
of a privileged debt under art
1994). My reading of these com-
bined articles concerning the privi-
leged claims of the Crown is that,
when the Crown has a special
privilege, its claim shall, according
to art. 607, be paid by preference
to all other creditors (which terms

ExCUASflE

IUnk ok Can-
ada l\ TUK
QlKKN.

■t^o-i

288

KN.\. ACT, s. 02 (13) —FRENCH LAW.

i I

KxCIIANdK

Hank ok I'aM"

ADA c. TlIK
Ql-KKN.

niny hnvo agnin to ho limited in
cfitMin ('ontiiigt'iK'ios not ot'curriiig
in tilt' proscnt cnso), and tliat wlicn
tlic Crown Ims no special prixilegt',
its otluM' |)ii\ilt'<;e(l claims, tliat is
those mentioned in art. IftOJ, shall
Ih" paid in i>i'eference to flio.se •?
tlie ordinary ehiiographie creditors.
Effect is thus given to tlie provi-
sions of l)oth codes according to
tlieir respective objects and to tlie
intention of the legislatnre." His
Lordshij) then cited, Troplong, Des
Prixilcges an<l HypotlRMpies, Nos.
01, (j.) ; and Portalis' Discours Prc-
liniinaircsnrleCodeCivil, 1st Locro,
p. 201, No. 17, and p. 205, and
continncd : " I am therefor*' of
opinion tlie Crown has no priority,
preference, or privilege to l)e paid
out of the asset.s of the Exchange
llaiili before the oinUnary creditors
of tlie Bank ; and tliat they
slioiild all be paid pari jjdssit,
in proportion to the amount of
tlieir respective claims, and that
the judgment of tlie courts below
should be atlirmcd." As stated
above. Monk, Ram.say, and Baby,
JJ., were for allowing the claim.

EXCH.VNOE B.\NK OF C.VN.VD.V
AND OTHERS V. ThK QuKEN, flimi

the Court of Queen's Bench. The
following judgment was delivered
by Lord Hobhouse [there being
also present Lord Fitzgerald, Lonl
Monk.swell, aiul Sir Kiclianl Couch ;
sec reference, ante, p. 282] : —

" The sole ultimate question in
this case is whether the Crown,
being an ordinary creditor of the
Bank which has been put in liqui-
dation, is entitled to priority of
payment over its other ordinary
creditors. That agnin depends on
the question how the two codes of
Lower Canada are to be construed.
Their. Lordships think it clear, not
only that the Crown is bound by
the codes, but that the subject of
priorities is exhaustively dealt with
by them, so that the Crown can
claim no priority except what is
allowed by them. If so, the other
points which have been elaborately

treated both in the colony and here
are only of subsidiary imporlaiice,
though undoubtedly they have n
iM'aring on the construction of the
coih's.

*' 'I'lieir Lordships are also clear
that the law relating to property in
the province of Quebec or in Lower
Canada, from 1774 to 1S07, when
the codes came into force, must li'
taken to be the ' Coutume de l'ari>
except in such special cases as inn,
be shown to fall under some otIuV
law. Probably such was the true
effect of the 'statute 1 1 Geo. .3.
c. 83., but at all events there Inis
been an uniform current of deci-
sion to that effect in the colonv,
dating back forty years or so be-
fore the date of the codes, which
ought not now to be questioned.

"The next (luestion is whether
the French law gave to the king
a priority in respect of all his debts,
or in respect only of tho.se due
from ' Coniptables.' There dtn's
not seem to have been any difference
of opinion on the point in the
colony. The three judges who de
cided for the Crown upon the ul
mate (juestion, and the two jiidj'
who decided the other way, all
thought that the priority given by
the French law extended only to
' Coniptables.' And in the appel-
lants' case filed on the appeal from
Mr. Justice Mntliieu it is elabor-
ately argued that the English law
and not the French prevailed in
Lower Canada, but it is never
suggested that the priority now
eliiiincd coidd be claimed under
the French law. That suggestion,
however, has been made upon this
appeal to Her Majesty, and has been
strongly contended for at the bar.

*' The matter rests wholly upon
the French authorities, and it ap-
pears to their Lordships that the
passage cited from Pothier {sec
Record, pp. 82, 83) is conclusive of
the question unless it can be con-
tradicted or explained away. It is
not conceivable that the advisers of
Louis XIV. should, if an unlimited
priority existed, address themselves

B.N.A. ACT, s. 02 (13).— BASIS OF CODES.

289

III till' c.viii't (lotlnition l>y odict of
M limitctl priority, or that Potliicr
.JiDiilil coinincnt on timt oilict, nil
wiilii'iit liny rcforoncc to tlic more
>«-i't'pinjj; iii!t>. But so t'lir from
lieiii^ contradicted or cxpiiiined
iiwin, till' passage in cpicstion is
Mijiportcd and cuipliasi/.cd l>y later
itiiilioritit's. Tiii'rc is tin- case ro-
|,„,i,.(l l.y Sircy, IHV.i, p. 3(50
(Hi'i'dni, p. Xli) sjiowinj; one lin\it
of till' icing's priority, nnincly,
tImt iiis rigiit against '(.^onipt-
iililcs ' did not cxfciid even to piir-
vi'vors wiio luigiit liavc liccn paid
ill lulviiiicc. 'I'licrc arc tiic iintlio-
litii's cited in tlic note to that ease,
who all draw the distinction be-
twi'cn the one kinil of Crown
(Iciitor mid the other. There is the
iiiitliiiiity of the Nonvean Deni.sart,
\'(i. t'oiii|)tal)les, e.\[)ressly drawing
llic distinction between the oilicial
(liiits of the 'Coniptalde' and his
pi'ivat" dcl)ts tine to the king, and
till' case of the Sieiir Bonvelais, It
May 17 IS, which illnslrates that
(li^tiiution (Kecord, p. KJO).

"If the priority contended for
exited in the French law, there
(MiiM be no dilliciilty in producing
iintliority to that eilVct. English
tixt-books and ivports abound with
iissfi'tions of the king's prerogative
IIS we know it. But absolutely no
iiiitlioiity wa.s produced in ' the
colony in opposition to the decision
(if Mr. Justice Mathieu, and now
nothing is jjroduued except the
work of u Counsellor of State
wiiting in the year 1(532.

"Taking the French law to be
a- laid down by the whole of the
juilfjt's below, tlie next question is,
what is the proper construction of
Hit. 191)t of the Civil Co.le ? And
the only difficulty in it when con-
-iilered alone arises from the use of
the expressions 'ses comptubles*
"lul 'persons accouutable for its
moneys.' Here again we ha\e
TOiiiplete accord among the judges
in the colony, that the expressions
inilicatc not'all the debtor.s of the
Crown, but a limited cla.ss of such
liebtors, known to French lawyers

S 2340.

Ql'KR.N.

under the name of ' Comjitables.' Ex< iuxue
The stit)rige>.t expression of oiiinion *'"' ".' ' *^"

to tliiit etll'ct is uttered by the

judges who decide<l in I'inoiir of

the Crown. That f)pinion, however,

is earnestly coinbated in thisappeal.
"That the word 'Comi)talileH '

is a teclinicid term of French law,

denoting olliceis who receive and

are accountable for the king's re-
venues, has been abundantly shown

from Mie law treatises cited at the

bar. It has not been shown that

ill legal documentH the Word is ever

ii.sed in l! • general sense of 'debtor'

or ' I'f >(,o resjM iisible,' It stands

in t le code as it is likely u term of

art would M.iiid, as a noun sub-
stantive, which explains itself to

lawyers liy itself, and does not re-

([iiire the addition of any explana-
tory words, such as in the English

version are found nccessiuy because

there is no corresponding English

subslantixc. The draftsnien of the

code were working on le existing

basis of French law. I'hey Wi're

in the nmin niiip[)iug out a system

of French law. Jt would be a

marvellous thing indeed if persons

st» engaged were to use a technical

term with a di linjte meaning well

known to Freiii'h lawyers, mid pre-
cisely adajited to the po.sitiou it
occupies in the code, and yet should

intend to use it in some other sense,
which is not its technical .sense, for
which it is not shown to be ever
used, ami for which other words
are used.

" Even the general dictionnrie.s,
five or six of which their Lordships
have consulted, do not lend any
eountenaiice to the respondent's
argument.

*' The Academic first speaks of
the word as a noun adjecti\ c thus : —
' Qui est assnjetti a reiidrecompte;
ofHcier; agent coini)tuble; les re-
ceveurs sout coniptables. Je ne
veux point de phiee d'emploi comp-
tablc,' which Tarver translates, ' I
don't want a place where accounts
are kept.'

" As a substantive it is said to
be thus used : — ' Les comutubles

290

B.N.A. ACT, s. 92 (13).— CONFLICT BETWEEN CODES.

I" I

J ;i|

ExcHANOB sont s>ij(>ts a etro roclicirhi^s. Cost

ll.VNK Of Can- m, i,qjj eoiiiptiihlt',' i.e., a good
f"-^ '■• '''"-^ nccoiintnut.

" Livvwiux siiy.s very iimeli tlic
.'iaiuc as tho Acadt'inie. Both show
tliat tho word is used uictapliori-
cally, as * Nous soinuR's couiptalilos
di' nos taluiis.'

" Littiv defines thf adji-ctivc
thus: — ' Qui a lics conipti's a tcnir
et a rench'i'. OUificr, a<;ciit conip-
talile'; and lie gives the metapho-
rical use. Of the substantive lie
siys, ' Celni qui est tenu de rendre
c'ouipte de deiiiers et de leur eniploi.'

" Bouillet, in his ' Dictionary of
Conmieree,' says of the word as a
substantive, ' Le mot s'ai)i)li(iue a
toute personne cpii est assnjettie a
rendre compte des affaires qu'elle a
ger^e.'

" Coutanseau and Sjiiers render
it in English, 'An accountant. A
responsible agent.'

" Their Lordships ha\t' not found
anv trace of its being used in the
general sense of a debtor or person
under liability except in metai)lior.

" Tarver and Spiers render
' debtor ' simply by tlie word ' de-
biteur.'

"Coming down to its special use
in th*' instrument now being con-
strued, their Lordships have found
many i)assages in the Civil Code
whoi'c the words ' comptable ' and
'compte 'are used .strictly of those
who are bound to account for par-
ticular transactions : —

"As of a tutor, ai't. .'iOS ct .srq.
of an heritier bencKciere,

art. ()77.
ofanexecutor,art.J)I3('^.v('«/.
of a husband for his wile's

goods, art. liUo.
of an agent, an. 1713.
of partners, art. IHOH.

"They have not been referred to,
and they have not found any pas-
sage in the Ci\il Code where these
words are used to denote generally
a debtor or person inider lial)ility.

" For creditors and delitors the
word.''- used are 'creanciers' and
•debiteurs': .srr Tit. IIF. through-
out, and particulaily caj), 7.

" To express general liabilitv the
code u.ses such verbs as 'tenir,'
' repondre,' ' charger,' and their in-
flexions or derixatives.

" If there be any difference be-
tween the French and English ver-
sions, their Lordships think that in
a matter which is evidently one ui
French law, the French version
using a French technical term
should be the leading one. There
might be cases in which such u
(|uesti()U would ai-ise. But it does
not arise here. The expression 'per-
sons accountable for its monev> ' is
not calculated to convey to the
mind of an English lawyer the no-
tion of 'in ordinary debtoi' or of a
banker. As between a banker anil
his customers, he, by English law,
is an ordinary debtor, and the
amount which he owes them is not
' their' money, nor is he 'account-
able' for it in any but a populi'v
sense. Arts. 1778 and 177!* of
the Civil Code seem to be foinideil
on the same view. Mr. Justiei'
l{ainsay says that to call a debtor
accountable to his creditor woiilil
be a perversion of language. Their
Lordships, without going so far,
cannot see why, if the (h'aftsinen
of the English version intended to
speak of debtors, they should not
have used the common term for llie
|»urpose. Or rather they woulil
liave used no term at all, but
would simply have mentioned
the claims of the Crown as tliey
have mentioned the claims of the
\('nilor and the lessor. In fiic*
the terms used are strong evidi'nee

that

the English

m this passage
xcrsion is really a translation from
thi' French, and that in translatiii;;
a French, technical term for which
there is no English equivalent, the
draftsmen have used the best peri-
phrasis they could think of. 'I'heir
words are (piite applicable to a
' Comptal)le,' i.e., an officer collect-
ing revemie, bound to earmark the
fuinls, to account for them, and not
to use them as his own. Such is the
position of tin officer under the Act
31 Vict. c. 3. s. 18, as .set out in

B.N.A. ACT, s. 02 (13).— PURPOSE OF PRE. CODE. 291

eonfliet of (ill with lOJ)! or tlio Exciianoe

iiocessity ol' iiuxlifyinjj; tlio con-
struction of one or tiic other. But
tlio (hity of the jud^o is, if pos-
sil)l(', to roconeilc the two, and
for that i)ui|)oso to look iit nil
relcviint circunistiincos.

■•ippcllants lit the bar hav(!

'Hi

pres.sod somewhat too alisohitelv

the

"luincnt that a Proccduro

till' Record, p. GH. Thoy may pos-
silily include some other cases, l)ut
tlicv an? not applicable to a hank
iv(rivin<; money on deposit or cur-
iviit account.

"('oustruing the words accord-
inir to the technical sense of
'C'oniptahles,' we come to tlie last
(iiu'stion ; which is the construction
of alt. Gil of the Procedure Code.

"Ill this aiticU', the word 'de-
fcnilimt ' is used with strict nc-
ciiiiii'V in reference to the subject
mutter of the tith- under which it
i« found, but must receive a rea-
xiimble latitude of construction in
ii|i]ilviiij; the article to cases M'her(>
tlii'ic is no defendant. And it
would seem that the words ' in the
iilisciice of woidd reipiire to be
ii'ikI in the meaning of ' subject
til"; *or it can hardly have been
iiu'iint that the rule was not to
iip[)lv !:: any case where there
were some special [)rivilegcs to be
iiiiswered. When construed in all
oiliiT respects literally, the article
(•(■rtiiinly gives to (he Crown tlu> into di'tail the i)riiiei|)les laid do

]Unk ok Can-

ada /'.

Ql'KKN.

be construed to"('ther in this

part

le man

priiPiity claimed for it in this suit.
Hill then it comes into contlict
witii art. 1994 of the Civil Code.

" In the tirst place, by giving to
till' frown a priority for all its
cliiinis, it swamps the limited
|iii(irity given by the 10th head of
int. 199J, and renilers that head
iiiiiiioaiiing. Rut beyond (his (h(>re
i-iictual iiiconsis(ency between the
hvii articles. According to the
liti'ral construction of till, the
Crown has priority over funeral
I'Xlii'iiscs and f>(her classes of
ilcl its which by 1991 have priority
oviT tlie Crown.

" It would seem tha( (he majority
111 tile (Queen's Rench paifl no
iiiii'iilion (() (his conflict. They
Niy they are asked to ' set aside '
lill on (lie grouiiil that it got into
ilii' code in some wrongful way.
llii'v were asked to do so, and
wiiv (jiiite right in their n'fusal.
Hut they were also asked to con-
Miiic tile codes as they stand,
iiiiil us Mr, .lustiec Matliieii had
'I'liit'. Thev do not notice the

tie;
ord

mate

•hi

1
contravene

th'

iriiiciples o

('111

.f th

roin

Ci\il Code, and it is c
art. (i05 that the two were be-
lieved to be working in harmony.
And when the Procediin? CoiU' is
found to ovcrlai) the Civil Code,
am

that the function of the Procedure
Code is in this par( of it a siibor-
ilinate one favours (he conclusion

tha( it is (he one (o b-

dified.

Code is not inteiideil to enact sub-
stantive law. and that this [lart of
the Procedure Code is only in-
tended (o gi\(' directions to the
courts how fo carry the rules of
the Civil Code into effect. Some
of the articles of the Procedure
Code {e.f/., ar(. GIO) do create or
establish rights r,(>t touched by the
Ci\il Code. The (wo codes should

just ns if the articles of the Pro-
cedure Code followed the coi're-
s[)onding articles of the Ci\il Code.
" So reading them, we iind that
tl

1 purpose of this part of
the Procedure Code is (o carry

in (he Ci\il Code, whi<'li are re-
peated in the form of directions
how money is to be distributed.
And where fresh classes of [iriori-

ire established, thev are sub-

not in(erferiii"r

widi the largt'i' classitication of the
Civil Code. Of course it could he
no part of the Procedure Code to

1 so it becomes necessary to
xlifv (he one or (he otlier, the fact

•' 'I'hal (here shoulil hiive been
any delibera(e in(eii(ion of giving a
large e.\(ensioii of privilege to the
Crown by the indir(!ct metluxl of
inser(ing a provision in a group of
clauses relating to a judicial dis-
tribiUion of [)roper(y taken in exe-

T 2

iVif

1 ,' iS

B' m

1 fi ; .<;iei

fill?'

.11

i!:!:i

uv :

1:: !

sf: •

P '

llv ,■

292 B.N.A. ACT, s. 92 (13).— LTMITN. OF PREROGATIVE.

exciianoe
IUnk op Can-

AD.V r. TlIK
UUEEX.

M.VUITIMF.
BA-NK of ('.\X-
AD-V r, l\y\.-

Gen. di- Nkw

liRfN.'iWICK.

cutioii, i.s a fhiiif^ lii<j;lily iinpro-
l)al)lc in itself. And tiif iniprotia-
bilitv i.s nmeli licightcncd l>y tiio
fact that at tlio same instant tho
legislature was «'niia<{e(l in cutting
down throughout Upper Canada
the vorv .same privilege whieli it
is held to ha\e lioen setting up
tlu'oughout Lower Canada.

" The foregoing are their Lord-
ship.s' reasons for eoneluding that
full effect should he given to art.
li)i)l, and that art. till should
consecjuently he nioditied .so as to
he reail in harmony with the
other. There i.s (litiieulty ahout
it, as tliere always is in these
cases of inconsistency. Follo\vin<i
the rule laid down iov their guid-
auci' in such cases hy .sec. 12 of
the C"i\il Co<le, their Lordships
hold that the nieaning of tlie legis-
lature nuist have lieiui to speak to
the following ett'eet : — ' Suhject to
the s])ecial privileges provided for
in the codes, the Crown lias such
prefc-rence over chirographic cre-
ditors as is provided in art. 1994.'
Or adhering as closely as [wssihle
to its rather inaccurate language,
' In the ahsence of any special
privilege, the Crown has a ])re-
ference over unprivileged chiro-
graphic creditors for sums due to
it hy the defendant, heing a ju'r-
son accountable for its nion<'y.'

" It may be objected that, thu.s
read, the article is only a repeti-
tion of what is contained in the
Ci\ il Code. That is so, but it will
be found that .some of this group
of articles (art. ()07 may he taken
a.s an e.\am|ile), in lixing the
rank of recipients of a fund ac-
tunlly under distribution, do con-
tain repetitions of the corres-
ponding articles of tile Civil Code
wiiicli gi\e the sam; rank in the
wider and more abstract form of
privileged claims or 'creances.' The
object ioM therefftre is not a serious
line, as the repetition results from
liie priiK'ipIc un whieji these por-
liiins (if the two codes are framed.

" This reading is nearly tin- .sune
as the reailings jH'oposed by Mr.

Justice Mathien and Chief Justice
Dorion. It is a large moditication
of the words, but not larger than
is required to bring the two sec-
tions into harmony. There is
ample authority for it in Carter
V. Molson, April 18, 1883, 8 App
Cas. 530 ; 52 L. J. P. C. 4(5 ; ID
L. T. 8.3 ; and the other cnsis
cited at the bar, and in that oV the
Western Counties Railway Co. r.
Windsor and a 'napolis Railway
Co. [7 App. Cas. J). 178, andymsYJ.

" The result i.s, that in the
opinion of their Lordshijis the
Court of Queen'.s Bench ought to
have dismissed with costs the ap-
peal from the Superior Court.
They will now humbly advise Her
Majesty to make .^'idi a deciee.
The respondents, by whom liio
Court is represented, will pay the

sts of the consolidated appeals."

Maritimk B.\nk of C.waoa v.
Rei'kiver - Gexer.\l ok 'Skw
But'NswiCK, in S. C. April 30,
1889 [see 17 ami 20 S. C. R. O.J7,
(i95, Ritchie, C.J., Strong, Four-
nier, Taschereau, Patlei'son, <]■].,
G Wynne, J., dis.senting], alUriii-
ing on the question of priority o\('i'
other depositors and creditois (if
e(iiial degree, 27 S. C. N. B. .IJl.
;i79 [Alleu, C.J., Wetmore, Fra-
scr, and King, JJ.j ; in P. C.
2 .luly, [1892] A. C. 437; (il
L. .1. P. C. 75; 67 L. T. 12(i.

Lord Watson delivered the fni-
lowing judgment [there licingiiNo
pi-esent Lords Hobhouse, Miie-
naghten, jNIorris, and Shaud. niul
Sir Richai'd Couch] : " This iip-
peal is brought l)y special leave in
a suit which followed upon a cii.'ii'
subnntted for the opinion of tho
Supreme Coiu't of the province el
N'cw Brunswick, by the appelhiiits,
the li(pu(hitors of the Maritime
Bank of the Dominion of Caniulii,
in the interest «)f unsecured cre-
ditors of the Bank, on the one
.side, and by the Receiver-Geneml
of the province, claiming to re-
IM-cseul H<'r Majesty, on the other.
Tht^ oidv facts which it is neees-

B.N.A. ACT, s. 92 (13).— CROWN AND PROVINCES. 293

siiry to refer to are these : that
till' Bank carried on its business
in the City of St. John, New
Bniiiswick ; and that, at the time
wht'ii it stopped payment in March
1887, the provincial Government
was a simple contract creditor for
a sum of 835,000, being public
moui ys of the province! deposited
ill th(! name of the Eeceiver-
(Tfiieral. The case, as originally
fnuiied, presented two fiuestions
for tiie decision of the Court ; btic
owing to the condition of the
Bank's assets, the liist of these
has ceased to be of practical iui-
poitauce, and it is only necessary
to consider the second, which is
in tiiese terms: 'Is the provin-
cial Government entitled to pay-
ment in full over the other
(k'liositors and simph; contract
creditors of tlie Bank ? '

"The Supreme Court of New
Brunswick unanimously, and, on
apjical, tlie Supreme Court of Ca-
nada with a single dissentient
voice, have held that the claim of
the jiroviueial Government is for
a I'rown debt to which the prero-
fjative attaches, and therefore an-
^swcrcd the question in the atfir-
niative.

" The Supreme Court of Canada
had previously ruled, in The Queen
('.The Bank of Xo\a Scotia [11
S. C. R. p. 1], that the Crown, as
a siniplc contract creditor for pub-
lic moneys of the Dominion de-
posited with a provincial bank, is
tutitlcd to priority over other cre-
ditors of eejual degree. The de-
cision appears to their Lordships
to be in strict acconhmee with
constitutional law. Tlie property
and rovenue& of the Dominion are
vested in the sovereign, subject
to the disposal and appropriation
of the legislature of Canada ; and
the prerogative of the Queen, when
it has not been expressly limited
hy local law or statute, is as ex-
ttiKsive in Her Majesty's colonial
possessions as in Great Britain.
Ill The Exchange Bank of Canada
V. The Queen [11 App. Cas. 157;

nee previous case], this Board dis- jVIabitime
posed of the appeal on that footing ^>''^^ "J^ t.'AN-
although their Lordships reversed ^"^.'ofNew
the judgiuent of the court below, ISku.nswick!
and negatived the preference claim -
e<l by the Dominion Government,
upon the giouud that, by the law
of the province of Quebec, the
prerogative was limited to the case
of the common debtor being an
officer liable to account to the
Crown for public moneys col-
lected or held by him. The ap-
pellants did not impeach the au-
thority of these cases, and they
also conceded that, until the
pi'ssing of the B. N. A. Act, ltSG7,
there was precisely the same re-
lation between the Crown and the
province which now subsists be-
tween the Crown .•iiid the Do-
minion. But they maintained that
the effect of the statute has been to
sever all connection between the
Crown and the provinces ; to make
the Government of the Dominion
the only Government of Her Ma-
jesty ill North America ; and to
retluce the laoviiices to the rank
of imlepeudent municipal institu-
tions. For these propositions,
which contain the sum antl sub-
tance of the arguments addressed
to them in support of this appeal,
their Lonlslii[)s have been unable
to tind either principle or authority.
" Their Lordships do not think
it neccssiiry to examine, in minute
detail, the |irovisioiis of tlie Act of
I8l57, which novvliert; profess to
ciiitail in any respect the rights
and privileges of the Crown, or to
disturb the rtdatioiis then subsisting
between the sovereign and the pro-
vinces. The object of the Act was
neither to weld the provinces into
one nor to snbonlinate provincial
governmeiits to a cciitial authority,
but to create aFeih'ial (lovernmeiit
in which they should all bi' rejire-
sented, entrusted with the exclusive
a<Imiiii>lration of affairs in which
they had a common interi'st, each
province retaining its independence
and autonomy. TMiat object was ac-
complished by dislriimting, iM^tween

m^ !'-.'-m

f f

\\f.

Maritime
Bank op Can-
ada I'. Rec-
Gbn. op Nkw
Brunswick.

294 B.N.A. ACT, s. 92 (13).— PROVINCIAL INDEPENDENCE.

the Dominion iind llic ])ioviiiTOS,
all powers I'xi'cutivt! and lc<risla-
tivc, and all pnlilic propiTty and
revenues wliieh had previously be-
longed to the provinees; so that
the Dominion Qo\ernnient should
be vested with such of these powers,
property, and re\cnues as weie
necessai'y for the due pert'ornianee
of its eonstitutional functions, and
that the reniaindei' should Ite re-
tained 1)\" the provinees for the
purposes of provineial <fovernnu'nt.
But, in so far as repirds those
matters which, by section 92, are
specially reserved for [)ro\incial
legislation, tlu' lesjislatioii of i-ach
pro\iiice continues to lie free from
the control of the Dominion, and
as supreme as it was befoi'i> the
the passin<i; of the Act. In Ifodjic
r. The Queen [9 App. Cas. 117;
sec snb-sec. 9, sec, J)2], Lord Fitz-
gerald, delivering the opinion of
this Board, said: ' When the British
North America Act enacted that
there .should be a legislature for
Ontario, and that its lcgislati\e
assembly should have I'xelusixc
authority to make laws for tin.'
province and for provincial itui-
poses in relation to the nuitters
enumerated in see. 92, it conferred
powers not in any sen.se to be e.xer-
ei.sed by delegation from or as
agents of the Imperial Parliament,
but authority as jjk'uary and as
ample within the Jinuts prescrilu'd
by .see. 02 as the Imperial P.'n-Jia-
ment in the plentitude of its powei'
posses.sed and could bestow. Within
these limits of subject and area the
local legislature is suin'eme, and has
the same authority as the Imperial
Parliament, or the Parliament of the
Dominion.' The Act places the
constitutions of all pro\inees within
the Dominion on the same le\el ;
and what is true with respect to the
Legislature of Ontario has eipial ap-
plication to the Legislature of New
Brunswick.

"It is clear, therefore, that the
provineial Legislature of New Bruns-
wick does not occupy the subordi-
nate position which was uscribetl to

it in the argmnent of the appellants.
It derives no authority from the
(Jovernment of Caufida, and its
status is in no way analogous to
that of a numicipal institution,
which is an authority constituted
for purposes of local administration.
It possesses powers, not of atlmini-
sl ration merely, l)ut of legislation,
in the sti'ictest sense of that word ;
and, within the limits assigned by
sec. 92 of the Act of 1HG7, these
jKjwers are exclusive and supreme.
It would require very express lan-
guage, such as is not to be fouml
in the Act of lHt)7, to warrant tlic
inference that the Imperial Legis-
laturtf meant to \('st in the pro-
\inces of Canada the right of exer-
eising supreme legislative jjowers
in which the British sovereign was
to ha\e no share.

" In a.sking their Lordships to
draw that inference fVoni the terms
of the statute, the api)ellants mail!';
if not wholly, relied upon the fact
that, whereas the Uovernor-CTentTal
of Canada is directly appointed by
thcQueen, the Lieutenant-Governor
of a pro\ ince is appointed, not l)y
Her Majesty, but l>y the Goveriior-
Ceneral, who has also the power of
dismissal. If the Act had not com-
mitted to the Governor-General the
jxiwer of appointing and removing
Lieutenant-Governors, there would
base iteen no room for the argu-
ment, which, if pushed to its logical
conclusion, wouUl prove that the
Governoi'-Gcneral, and not tlu'
(^ueen, whose Viceroy he is, became
the sovereign authority of the pro-
vince whenever the Act of 1S()7
came into o[)eration. Buttheaigii-
ment ignores the fact that, by sec. 58,
the appointment of a jjrovincial
(Joveruor is made by the * Gover-
nor-(Jeneral in Council by instru-
na'Ut under the great .seal of
Canada,' or, in other words, by the
ExecutJM' (}o\t'rument of tlie Do-
minion, which is, by sec. 9, ex-
pressly declared 'to continue anil
be vested in the t^neen.' There is
no constitutional anonudy in an
executive officer of the Crown re-

B.N.A. ACT, s. 92 (13).— LT.-GOV. AND THE CROWN. 295

ceiving his nppoiiitmoiit at the
liands of a {governing body who
liavi' no powers and no functions
ixccpt as representatives of the
Crown. The aet of the Governor-
(ii'iii'iiil and his Council in niakin<;
ihe appointment is, within the
iiR'aning of the statute, the act of
the Clown ; and a Lieutenant-Go-
vernor, when tti)pointed, is as much
the representative of Her Majesty,
lor all purposes of provincial go-
vernment, as the Governor-General
liiiuself is, for all pui'poses of Do-
minion fjovernnieiit.

"The point raised in thisajjpeal,
as to the vestin}^ or uon-vestin<>; of
the public property and re\enues
of each province in the sovereign
as <i')reme head of the State, ap-
pears to their Lonlships to be prac-
tically settled by previous decisions
of this Board.

" The whole revenues reserved
to the provinces for the purposes of
provincial goverunient are speciiied
in sees. 1U9 ami 126 of the Act.
Tlie lirst of these clauses deals with
' all lands, mines, minerals, and
royalties belonging to the several
piovinces of Canada, Nova Scotia,
and Xew Brunswick at the Union,'
which it declares 'shall belong to
the several provinces of Out^irio,
Queln-c, Nova Scotia, and New
Brunswick, in which the .sjime are
situate or arise.' If the Act had
operated such a sm eraiice between
tlie Crown and the provinces, as the
a|)[)eilants suggest, the declaration
tiiat these territorial revenues should
' l(elong ' to the provinces would
hardly have been cousisteut with
their remaining vested in the Crown.
Yet, in The Attorney-General of
Ontario v. Mercer [8 App. Cas.
7G7 ; see sec. 105)], St. Cathei'ine's
Milling and Luml)er Co. v. The
t^ueeii [14 App. Cas. 40 ; see sub-
sec. 24, sec. 5)1], and The Attorney-
(.ieiieral of British Columbia v. The
Attorney-General of Canada [14
App. Cis. 295; sec sec. 109], their
LorilshipM expressly held that all
the sul)jects described in sec. 109,
snduU revenues deri\ed from these

subjects, continued to be vested in Maritime
Her Majestv as the .sovercig i bead ^^^^^ or Cax.
of each province. Sec. 120, which 'fh^l'''J}y;^^
embrace.'* provincial revenues other Um.NgwuK.
than those arising from territorial
sources, and includes all duties and
levenues raised by th»; provinces in
accordance with the jjiovisions of
the Act, is expressed in language
which favours the right of the
Crown, because it describes the in-
terest of the provinces as a right of
appropriation to the public service.
And, seeing that the successive de-
cisions of this Board, in the case of
territorial revenues, are based upon
the general recognition of Her
Majesty's continued .sovereignty
under the Act of 1867, it ap|)ears
to their Lordships that, so far as
regards vesting in the Crown, the
same consecpiences must follow in
the ca.se of provincial revenues
which are not territorial.

" Being of opinion that the de-
cisions of both Courts Ih'Iow were
sound, and agreeing with the rea-
sons assigned by the Icjirned judges,
their Lordships will humbly advise
Her Majesty to aliirm the judgment
appealed from, and to dismiss the
appeal. The ajjpellants must pay
to the resi)ondent his costs of this
appeal."

[.See Bank Act, 53 Vict. (Dom.)
c. 31. s. 53.]

Tennant v. The L'^nion Bank

OK Canada, in the Ct. of App.
Ont., 8 Jan. 1892, 19 O. A. K. 1
[Hagarty, C.J.O., Osier and Macs ite^^pls'ca^.
lennan, .JJ.A., Burton, J. A., dis-
senting], aflirming JJovd, C., 4
.June 185)0; in P. C. 5) Dec. 1893,
[185)4] A. C. 31 ; 03 L. J. P. C.
25 ; 05) L. T. 774. Lord Watson
delivered the following judgment,
alHrming the coiwt below [there
iieing also present at the fir.st
argument Lords Hobliousi^ and
Morris, Sir Uichard Coiu'li, and
Lord Shand; and at the second the
above and Lortl Herschell, L.C.,
and Lord Maenaghten] : —

"Christie Kerr & Co., .sawmillers
and lumljererH at Bratlford, in the

Tennant v.
Union Hank
OK Canada.

^1 ' (fl

;!! ri'J

I t

^«ei

296 B.N.A. ACT, s. 92 (13).— LUMBER SECURITY.

Tensast v.
Union Bank
OF Canada.

Warehouse
Receipts Case.

IHIi

i! I

province of Ontario, bocauie insol-
vent in April 1889. Tho I'liion
Bank of Canada, rospondeuts in this
api)eal, subsequently took posses.sion
of and removed a quantity of lumber
which was stored in the yard of the
firm at Bradford. This action was
brought against the respondents in
I)ecend)er 1889, for dauiagi's in
respect of their alleged conversion
of the lunibei', by Aliekle Dynient
and Son, personal cnditors of the
insolvent firm, in the name of James
Tennant, as a.ssignee or trustee of
the firm's estate, by whom they
were duly authorized to sue, in iiis
name, for their own exclusive u.se
and benefit.

" Christie Kerr & Co., to whom
it may be convenient to refer as
the firm, had a timber concession
in the county of Simcoe, where,
according to the course of tlu'ir
business, the pine wood was felled
and cut into logs, which were
marked with the letters ' C. K.,'
the initials of the firm. The logs
were then conveyed, chiefly by
water, to their mill at Bradford,
where they were sawn aiul stored
for sale.

" In order to obt4iin funds for
carrying on their trade iluiing tiic
season of 1888, the tirm, in Oc-
tober 1887, entered into a written
agreement with Peter Christie, son
of Alexander Christie, its senior
partner, who agreed to advance
the money neces.sary, iqwu receiv-
ing a lien by way of security upon
all the timber cut or nninufactured
by the firm. On the other hand,
the firm undertook to do every-
thing that was nece-s.sary in order
to mak(! such lien effectual, and for
that purpose to executi! any docu-
ments which might be recpiired.

" In pursuance of that agreement
promissory notes were granted by
Peter Christie, which the Federal
Bank of Canada discounted, undei'
an arrangement by which they
were to receive warehouse receipts
covering all the timlwr Iwlonging
to the firm. Peter Christie assign-
ed tu the bank all right and benefit

which he had iinder the agreement
of October 1887. The cotu'se of
dealing with the bank was, that the
firm granted warehouse receipts td
themselves, which they in<lorse(l to
Peter Christie, by whom thc-y wcic
indorsed to the bank.

" The Federal Bank went into
liquidation in June 1888, at wliieli
date their advances amounti'd t(j
about 8oO,tX)0. In order to nuvt
the claim of the liquidator, Alex-
ander Christie applied for accom-
modation to the respondents, who
agrei'd to give it, upon terms wliicli
were arranged between him ami
Mr. Buchanan, their maniigcr.
The agreement was verbal ; tind
its terms, which are of considerate
importance in this case, api)ejir
from the folic :ing statements made
by Alexander Christie in the course
of his evidence, which are sub-
st^intially corroborated by Mr.
Buchanan and are nowhere eou-
tra<li(ted : — ' That we and Peter
Christie should give his notes, tlmt
Christie Kerr & Co. and A. H.
Christie should indorse them, and
that there should be a warehou.se
receipt covering all the logs tlmt
they had, and the lumber that \vii>
to be manufactured from them.'
'The intention was to give the
security of the logs and of the
lumber as it was manufactured.'
' We were to give them a receipt at
once upon the whole of the logs,
and as the logs progressed we
uuule a continuation to where they
were. ' * Warehouse receipts were to
l>e furnished until the debt was ixiid.'

" 'J'here was not, as in the ease
of the Federal Bank, any a.ssign-
raeiit to the respondents of Petei'
Christie's rights under the agree-
ment of October 1887. It is clear,
from the account which he gives ol
the transiiction, that Alexander
Christie deilt with the respondents,
as the rep.'esentative of his firm.
and also as representing his son
Peter, from whom he held a power
of attorney. Peter Christie took
no part personally in any of the
tran.sactions, either with the Federal

BXA. ACT, s. 92 (13).— NEGOTIABLE INvSTRUMEXTS. 297

Bank or witli the respondents.
From tirst to last, so far as his
interests were couceriied, all ar-
nui"enients were made, and all
(loi'iwnents connected with them,
whether promissory notes or ware-
house receipts, were executed and
snbseiibed by his father on his
iH'half.

" Upon the faith of the agree-
ment the respondents madi' advances
to the amount of I5o2,()00 upon
promissory notes of Peter Christie,
in(h)rsed to them by his attorney
iUHJ also by the lirm. On the
20tli June 1888, they received a
warehouse receipt for seventy thou-
sand |)ine saw logs marked 'C.K.,'
which were described as then stored
in the hikes St. Jean and Couclii-
liiing, cii route to Bradford mill.
These logs represented the whole
pine timber which had been cut for
tiiuisportation to Bradford during
the season of 1888 ; and as they
arrived at their destination, and
were siwn ui), fresh receipts were
given to the respondents, contain-
ing a description of the timber in
its manufactured state. Portions
of the lumber were from time to
time .sold by the tirm, with the
consent of the respondents, and
the proceeds applied in reduction
of their advances.

'• The last of the series of receipts
(le|iosited as security with the re-
spon(h'nts is dated the 1st January
1H89, l)y which time all the logs
covered by the first receipt of the
20th June 1888 had reached Brad-
ford, and hud been converted into
lumber. It includes the whole of
the timber forming the original
subject of the security which then
remained un.sold, and in the posses-
sion or custody of tht^ firm.
Though not in precisely the stime
form as the rest, it may be t^dcen
as a specimen, becau.se it was not
contended that the differences of
form were material. It runs
thus :—

" ' The undersigned acknowledges
to have received from Christie
Kerr & Co., owners of the goods.

wares, and merchandise herein Tesnast u.

mentioned, and to have now stored ^'•J^" Bask

in the premises known as the Brad- "^ Canada.

ford sawmill yard, adjoining the Warehouse

% illage of Bradford, in the county Receipts Case.

of Simcoe, the following goods

wares, and merchandise, viz. : —

Five millions eight hundred and

fifty-three thousand nine humlred

and twenty-four feet of lumber,

one hundred and ninety -three

thousand of shingles, all marked

' C. K.,' and manufactured during

season 1888 out of saw logs cut in

the townshii)s of Oakley and Hin-

ilon, and transported to Bradford

mill and cut there, which goods,

wares, and merchandise are to be

delivered pursuant to the order of

the .said Peter Christie to be in-

dorsetl hereon, and are to be kept

in store till delivered pursuant to

such order.'

" ' Tins is intended as a ware-
house receipt within the meaning
of the .statute of Canada, intituU'd
' An Act relating to Banks and
Banking,' and tlu; amendments
thereto, and within the meaning of
all other Acts and laws under
which a bank of Canada may
aetiuire a warehouse receipt as a
.security.'

" This receipt was, like its prede-
ci'ssois, signed by the firm, and by
them iiulorsed to Peter Christie,
and was tlien indorsed on his be-
half by Alexander Christie, and
delivered to the respondents.

" It is not matter of dispute that
the timber of which the n'spon-
dents took po.sst^ssion, after the in-
solvency of the firm, was included,
either as saw logs or as lundier, in
all the receipts which they rectMved
as security. But it does not
appear to their Lordships that tliese
receipts could be regarded as ne-
gotiable instruments carrying the
property of the timber, if their
efiPect depended upon the provisions
of the Mercantile Code which is
contained in the Revised Statutes of
Ontario, 1887.

" The Mercantile Amendmeut
Act (c. 122. of R. S.) deals with

it
Ml

l:i'
«''■

;'in

! !

Thnsant I'.
Union JUnk
OP Canada.

AViirt'liousf
Receipts C'tuse.

298 B.N.A. ACT, s. 02 (13).— PROPERTY v. POSSESSION.

Wiircliousc icct'ipts and (itluT nicr-
t'lintilo (loeiiuu'Uts, wliicli arc riW-r-
liml to triiiismit tlic property ol'
floods without iictiiiil (Iclivci'v.
'I'liiit stututf not only rccojiniscs
till' nt'f^otiahility of warchoust' iv-
t'cipts by custodiers wlio are not
tlie owners of tlie f.;ooils ; it extends
the privilep' to receipts liy one wlio
is botli owner and eus'odier, but
tliat only in eases where the jjrantor
of the receipt is, from the natiuc of
his ti'aile or callin<^, a custodiei- for
others as well as himself, and there-
fore in a position to {jive receipts
to third parties. 'J"he receipts in
(piestion do not comj)ly with the
lecjiiirenients of the Act, because it
is neither averred nor proved, that
the firm, in the course of their
business, had the custody of any
ffoods except tlieir own.

"It may also be notict'd that
c. 125 of the Revised Statutes enacts
that when goods are transferred
by way of conveyance or mort-
gage, possession iK'ing retained by
the transferor, the deed of convey-
ance or mortgage, if not didy
regi.stered, shall be absolutely null
and void as against creditors of tin-
grantor or mortgagor.

" In these circumstances, certain
l)rovisions of ' The Bank Act '
which was passed by the Legisla-
ture of the Dominion (4G Vict,
e. 120.), and is specially referred to
in the receipts held by the respon-
dents, become important. Although
now repealed, the Act was in force
during tiie whole period of these
transactions; an<l, if competently
enacted, its provisions must, in so
far as they are applicable, govein
the rights of parties in this liti-
gation.

" Sec. 15 provides that the bank
shall not either diivctly or in-
directly lend money or make ad-
vances upon the security or pledge
of any goods, wares, or merchan-
<lisi', except as authorized by the
Act.

" Sec. 53, sub-sec. 2, authorizes the
bank to acquire and hold any ware-
house receipt or bill of lading as col-

lateral secui'ity for the payment of
any debt ineiu'red in its favour, in
the course of ils l)anking liii«i.
ness. The document so aei|uii>i|
vests in the bank 'all tin.' right .ind
title of the previous holder i,y
owner thereof, or of the peixm
from whom such goods, ware>, or
merchandise were received or m--
(piired by the bank, if the wniv-
house receipt or bill of lading is
made directly in favour of tin-
bank, instead of to the jirevious
holder or owner of such goods,
wares, or merchandise.' ,Sub-scc.
3 of the .same clause provides
that if the previous holder of siicji
warehouse receipt or bill of ladiii).'
is the agent of the owner, the
bank shall be vested with all
the right and title of the owner,
subject to his right to have the
goods retransferri'd to him, updii
l)ayment of tins <K'bt for which
they are held in security by the
bank.

" Sec.
with the

51, which deals specially
ca.se of the custodier
anil owner of the goods being one
and the .same perst)n, enacts that: —

'''If any person who grants a
warehouse receipt or bill of lading
is engaged in the calling, as his
ostensibh; business, of keeper of a
yard, cov»', wharf or harbour, or of
warehou.seman, miller, saw-miller,
maltster, manufacturer of timber,
wharfinger, ma.ster of a vessel, or
other carrit'r by land or by water,
or by both,cmer or packer of meat,
tanner, dealer in wool or purchaser
of agriculttnal produce, and is at
the siune time the owner of the
good.s, wares, and merchaiulist'
mentioned in such warehouse re-
ceipt or bill of lading, every such
warehou.'^e receipt or bill of hiding,
and the right and title of the bank
thereto, and to the goods, waies,
and merchandise mentioned therein,
shall be as valid and effectual as if
such owner, and the person making
such warehouse receipt or bill of
lading were different |«'r.sons.'

"These enactments go beyond
the provisioQs of sec. 16 of the

B.N A. ACT, s. 02 (13).— WAREHOUSE RECEIPTS. 209

Mcrcnntilo Anii'iulniciit Act. They
(iiiiit till' liinitatinii ol' tlic proxiii-
liiil stiitiitf, wliu'li rc(iiiiics, in onlfr
III valiiliitf a wnrelioust' ivccipt livii
iihtoilii'i' will) is itlsii i>\viirr, that
ill,' ti'iiili' or I'allint; in wliirli lir is
ii.lcii.-iililv cnjiaf^i'd inu.st lu' niii!
whii'li mliiiits oi iiis <iraulin<i rc-
iciiits on lu'liall' of otliiT owni'is
wiiosf piDils aiv in his possession.

••'J'lii' CluuK'i'llor of Oiitaiio ilis-
iiii!.s('il till- suit with fosts, ami liu'
Court ol' Appeal atlirnii-il his tU'ci-
-um. I'pon tlu! cviilenee lit'forc
ihciii all the learneil jntlj-es, with
Mill' I'.xi'i'ption, (uiiiie to the conelii-
^ioii tliiit the transaetion was siib-
«iiiiitiallv one lietween the llrni ami
llu' respiimlents, ami that I'eter
Cliiisiie's position was really that
111' an intenneiliary ; ami conse-
i|iu'iitly that the re.spomleiits had a
rij:Lt, ii<;aiiist the tinn, to ilenianil
anil ii'ccive warehouse receipts for
ilif tiiiilier in security for their ail-
viiiici'!*. Mr. Justice Burton was
of opinion that the resitonilents
must lie held to have ilealt with
IVler Christie alone; that the re-
i'i'i|)ts, ill his hands, were not valid
I'itlit'i' aci'ordinf; to provincial hiw
or miller the provisions of the Bank
Alt; and that his indorsation couhl
not pass any interest in the timber
to the lesjiondents.

"Ill the view which lie took of
till' real character of the trans-
iiiiioii, till' Chancellor held that
llii' rcii'ipts weri' eft'ectual, mainly
on the ground that Peter Christie,
ill iiiiloi'sin^ them, ought to lie re-
;;ani('il as the aj^ent of the fii'ni
within the meaniiijf of sec. 53, suh-
-w. 3, of tiie Bank Act. Cliief Jus-
lici'Hagarty and Mr. Justice Mac-
It'iimiii, who with Mr. Justice OsU-r
TOUstituted the majority of the
Appeal Court, held that the re-
ivipt."*, having been given directly
10 the respondents by the lirni
iiiiik'r an oliligation to that effect,
«ii'e made effectual by the provi-
-ioiis of the Bunk Act. They also
liilil that, assuming the receipts
uot to he within the protection of
tlie Bank Act, Peter Christie had,

as between himself and the linn, Tk.n.n.v.nt v.
an eipiitalile lien on the timber ' •'"",'^' "•^•'"'
which pa.s.sed to the respondents ; '"' •^'•^''^»^'
ami also that they had the winie AVareliousu
rights against the trustee of the Hwiipts t'a.M
insolvent linn as they had against
tile linn itself. Mr. Justice Osier,
whilst agreeing that the respon-
dents dealt directly with the firm,
examined the case on the contrarv
hypotiiesis, and held that, even in
that view, the reci'ipis were vali-
dated iiy the Bank Act, and car-
ried the jtroperty of the timber to
the I't'spondi'iits.

'• In the courts below the appel-
lant pleaded that the provisions of
the Jiank Act with respect to
warehouse reei'ipts, in .so far as
they ditt'er from the pi'ovisions of
the Mercantile Amentlment Act,
were idtra rircs of the JJominion
Legislature. 'I'he plea was not
diseu.s.sed, beeau.se it was ad-
mittedly at variance with the (h--
eision of the Supreim; Court of
Camula in IVIerchants' Bank of
Cana(hi t: Smith [8 S. C. R. ol'i ;
S O. A. R. 1.5 ; 2H (J rant, (J2J)
(.sec inife, p. 0.)), and 1 Cart-
wright, S28], which was a prece-
dent binding on provincial tri-
bunals. The ea.se was therefore
disposed of by the Chancellor and
the Ai)peal Court upon the footing
that the provisions of the Bank
Act were not open to challenge.

"At the first hearing of this
appeal the whole points arising in
the case were fully and ably ar-
gued by counsel, with the excep-
tion of the plea taken by the a[i-
pellant against the validity of the
Dominion Act. Further thscussion
at the time was prevented by the
Labrailor case [a special reference
case], which hiul been specially set
down for the consideration of u
fidl board.

" Their Lordships, having con-
sidered the argument which had
been addressed to them, came to
the conclusion that the nnijority of
the h-arned judges were right in
holding that, notwith.standiug the
form ol' the duoumeuts by which

!'■,

300 B.N. A. ACT, 8. 92 (13).— VALIDITY OF DOM. ACT.

TkNNANT I'.

Union IUnk
ov Canada.

AVimOiousf
Receipts Cnsc.

'I ■ I '

it was <airi«>il out, the airiiii<;t'-
iiicnt tiiade iu JiitU' 18HH, liy
Ali^xaiicU'r Cliristie aiul Mr.
liiieliaiian, was ono lu'twcen tlic
rospondents aiul the liiiii, as wi'll
as between tbeiu and Peter
Chri.stie.

" It does not admit of doubt
that the advauees obtained from
I lie bank were intended to be for
tile n.sc and benefit of tlie linn.
Although the promissory notes
were signed by his father as re-
presenting Peter Ciiristii", it is
elear tiiat they were signed for
the accoinuiodation of tlie linn,
and that, in any ipiestion Ix'twecn
him and the firm, Peter Christie
was a mere surety. In a (juestion
with the respondents he was no
doubt the primary debtor, but the
linn, as indorsers of the |>roinissory
notes, were ai.so under a direet
liability to the respondents, for
whieh seeurity might Ih" given.
And it is a material eirennistance
that the evideiiee of Alexander
Christie, whieh has already lieeu
eited, is only eonsistent with the
view that the firm undertook to
give the respondents the security
of the timber. The whole eoiirse
of dealing between the parties is
also con.sistent with that view.
The advances appear to have been
paid over to the fiini, and the
warehouse receipts for tiie timber
to have been delivered by the linn
to the respondents; and it does
not appear that either the money
or the receipts ever passed or were
intended to pass into the possession
of Peter Chri.stie.

"Their Lordships also came to
the same conclusion with the ma-
jority of the learned judges, that,
jussuming the provisions of the
Bank Act to Ih' intra vires, the
rec«'ipts in question were such as
the firm could give and the re-
s|K)ndeuts could lawfully receive.
The obvious effect of sec. 54 is
that, for the purposes of the Bank
Act, a warehouse receipt by an
owner of goods who carries on, as
the firm did, the trade of a aaw-

iniller, is to lie as ellVctual ns il it
had been granted \ty Ids Imilc,.
although his business iiitiv lie coii.
lined to the maiiufaeture uf hj^
own timber. That enactnicnt
plainly implies that such a nciihi
is to be valid not only iu the liniids
of the bank, but in the hands dt „
borrower who gives it to the liaiiii
in .security of a loan. Their Lord-
ships do not think that the provi-
sions of sec. 53, sub-.sec. 2, which
are somewhat obscure, can be iiijij
to cut down the phiin enact men ts(,f
see. 5-i, cspwially in a ease wiii'ic
the grantor of tlie receipt ImmimIi
delivers it to the bank as a seciiiitv
for his own debt.

" It seems clear that the linn,
so long as they were solvent, eoulil
not have refused to make delivciv
of all the tinilH'r in their [tossessioii
to the resjiondeiits, allhougli liic
legal ownership was still with tiii'
linn. But on that assiiniptiun,
and a.ssumiiig also that their tiiiv
tee had no higher right than the
insolvents, the (piestion reiimius
whether a creditor having an ii>i-
signment from the trustee loiild
plead the nullity enacted by cap.
125 of the Revised Statutes. Their
Lordships, before dealing with
these ([uestions, thought it expe-
dient to deteniiine for themselves
whether the provisions of the Bank
Act to which the appellant take.-
exception, were comix'tently eii-
actecl.

"The appellant's plea against
the legislative power of the Domi-
nion Parliament was accordingly
made the .subject of further argu-
ment ; and, the point being one of
general importance, their Lordships
had the advantage of being assi.sted
in the hearing and consideration of
it by the Lord Chancellor [Lord
HerschellJ and Lord Macnaghteu.
The question turns upon the eoii-
striiction of two clauses in the
British North America Act, 1807.
Sec. 91 gives the Parliament of
Canada power to make laws in re-
lation to all matters not coming
within the classes of subjects by the

B.N.A. ACT, H. 92 (13).— BANKING v. CIVIL RIGHTS. 301

Act t'XfluHivcly iissif^iifd to the
l,.iiisliilnrt's of tlif provinces, and
iiKo exclusive iejjisltilive aiitliol'ity
ill rcliitinn to certiiin eninnerated
^iilijecls, tlie lil'teentli of wliieli is
■Hanking, incorporation of banks,
mill lilt' issue of pajuT money.'
Sec. U'2 assigns to each provincial
Ic'lsliiture the exclusive right to
iimkc laws in relation to the classes
of siihjects 1 herein cnnniorated; and
liif thirteenth of the enumerated
ciiisscs is ' Property and civil rights
in the province.'

"Statutory regulations with re-
>|Mrt to the foi-ni and legal effect,
in Ontario, of warehouse rccei[)ts,
and other negotial)le docinnents,
which pass the property of goods
without delivery, nnquestionahly
relate to property and civil rights
in that province; and the objection
taken hy the appellant to the pro-
visions of the Bank Act would lie
nnanswerahle if it couhl he shown
that, hy the Act of 1HG7, tin," I'ar-
lianieiit of Canada is ab.solutely de-
liarred from trenching to any ex-
tent upon the matters assigned to
the provincial legislatnre liy sec. 912.
Jhit sec. 91 expressly declares that,
'notwithstanding anvthing in this
Aft,' the exclusive legislative au-
thority of the Parliament of Ca-
nada shall exfeml to all matters
eoniing within the enumerated
classes J which plainly indicates
that the legislation of that Parlia-
ment, so long as it .strictly rt'lates
to tlies(( matters, is to he of j)ara-
inount authority. To refuse effect
to the declaration wonld reinler
nugatory some of the legislative
powers specially assigned to the
Canadian Parliament. For ex-
ample, among the einimerated
classes of subjects in .sec. 91, are
'patents of invention and dis-
covery,' and ' copyrights.' It
would Im' practically inipossiblo for
the Dominion Parliament to legis-
late tipon either of these subjects
withoiit affecting the property and
civil rights of individuals in the
provinces.

"This is not the lirst occasion

on which the legislative limits
laid down by sees. 91 and 92
have been consichu'ecliiy this Board.
In Cnshing r. Dupuy [5 App.
('as. 409; xpe aiitt; p. 80], their
Lordships had before them the
\ery same (piestion of statutory
construction whi<'h has been raised
in this appeal. An Act relating to
l)ankruptcy, passed i)y the Parlia-
ment of Canada, was objected to as
iieing tiltrn vires, in so far as it
interfered with property and civil
rights in the province ; but, injis-
mucli as ' bankruptcy and insol-
vency ' form one of the classes of
matters ennmerated in sec. 91,
their Lordships u])held the validity
of the statute. In delivering the
judgment of the Board, Sir Mon-
tague Smith pointed out that it
would be iin]»ossible to advance a
step in the construction of a scheme
for the administration of insolvent
estates without interfering with
and modifying some of the ordi-
nary rights of property.

" The law being so far .settled
by j)recedent, it only remains
for consideration whethe:- ware-
house i('cei|)ts, taken in security
by a bank, in the cour.se of the
business of banking, are matters
coming within the class of subjects
described in .sec. 91, sub-sec. 15, as
' banking, incorporation of banks,
and the issue of paper money.' If
they are, the provisions made by the
Bank Act with respect to such
rectipts are intra vires. Upon
that point their Lordships do not
entertain any doubt. The legis-
lative authority conferred by these
words is not confined to the mere
constitution of corporate Tiodies
with the privilege of carrying on
the business of tmnkers. It ex-
tends to the issue of paper cur-
rency, which necessarily means
the creation of a species of per-
sonal proiierty carrying with it
rights and privileges which the law
of the provmce does not, and can-
not, attach to it. It also compre-
hends 'banking,' an expression
which is wiile enough to embrace

Tenwant c.
L'nio.v Hank

or (JANAUA.

Wariliouse
Heoeipts Case.

302 B.N.A. ACT, M. 02 (13)._BANK PUrVILEGKS.

TrnnA!«t V,

I'nikn Hank

(If Canada.

AVnrchoiiHc

Uci'L'ijltS Vl\S

Att.-Of.n. <ir
Ontaiiio 1'.
Arr. (iKX. iiF
Canada,

III rr As-ifiii-
nii'iits mill
I'rotVri'iu'i >
(Out.) Art.

fvcrv trimsiiL'tioii {■oiiiiiif; within
tile li'jj;itiiimti' liiisincss of m liankcr.

"'I'lu' npppliniit's coniiM'l iiiti'illy
vriitiirctl tit (lis|)iitt> tlmt the it'iid-
iiij; of money on tlio security of
pioils, or of (lociiincnts I'cprt'scnt-
'u\'fi till' |ii'o|icrty of l;oo(|s, whs ii
|pr(t|H'i'lmiikinfi ti'iinsiiction. Tiicir
chief t'onlc'iition WHS that, whilst the
Lejlisliitiiic of Caiiiitla had power
to deprive its own creature, the
l)ank, of privilcf^cs enjoyed l>y
olhei' lenders luider the provincial
law, it had no |»owcr to cotd'er
upon the hank any j)rivilc};o as a
lender, wliich the i)ro\ini;ial law
does not recof^nise. It inie;hl
enact that a scein'ity, valid in the
case of anntiiei' lender, should lie
invalid in the iiands of the ))ank ;
hut could not enact that a seciu'ity
should lie availahle to the hank,
which wouhl not have heen enee-
tual in the hands of another lender.
Jt was said, in support of the
arfiunient, that tlie first of the^e
thin<;s did, and the second did not,
constitute an interference with
property and civil rights in the
province. It is not easy to follow
the ilistinction thus su<;j;ested.
There niu.st ho two parties to a
transaction of loan; and if n
security, valid according; to pro-
vincial law, was made invalid in
the liands of the lendei' l)y a
Dominion statute, the civil rij^hts
of the horrower would he ail'ected.
l)ecansc lie could not avail himself
of his pro[)erty in his dealinfjs with
a hank.

"Hut the arffument, even if well
founded, can nft'ord no test of the
lejiislative ])owers of the I'arlia-
ment of Canada. These depend
upon sec. 01, and the power to
le<jislate conferred hy that clause
may he fully exercised, idthoni^h
with the effect of modifyinj; civil
rifihts in the province. And it
appears to their Lordships that
the plenary antiiorit, given to the
Parliament of Canada hy sec. 01,
snh-stH'. 15, to legislate in relation
to hanking transactions, is sufficient
to sustain the provisions of the

■Raid; Act which the Appelbnt
im|)u;;ns.

"On these groiuids, their Ldnl-
ships have come to the conchisjoii
that the judgments appeiiled finin
ought to he atrniued, and thev will
Innnhly advise Her Maji".|v \„
that eiVeet. The appelhinl iiiilsl
liciir the costs of this appeal,"

I'm: ATT,-fri:N. oi' Ontaimo r.

TlllO ArT,-(lKN. 11)11 TIlKDltMIMiiX

Df Canada. A ipiestion |)ut innlcr
.■).{ Vict. (Out.) c. i:{. to the Ci. of
App, Oat. to answer, 0 May is'.l.'l,
•JOO. A. 1{. 180, Jlagarty, C,.l.().,
and Ihirton, J,A. |Maclennaii, .I.A.,
dissented, and Osier, J. A., gave im
opiinonj, held the Act in i|Ue>ii(in
littni rins: In V. V. Feh. 2+,
( IHOI] A, C. IHO; (i:{ L. J. I'. C.
.■)0: 70 Ii. T. i);iH. The followinj:
judgment, reversing the court Im'-
low. was delivered hy Lord Iler-
sehell. L.C. [there heing also pre-
sent Loi'ds Watson, Macnagliten,
and Shanil,and Sir KichardCoueli] :
" Tiiis appeal i^ prcsenteil hv
the Attorney-(}encral of Ontnrie
against the decision of the Coiul
of Appeal of that province,

"The decision complained of
was an answer given to a question
referred to that court hy the Lieii-
tenant-trovernor of the piovinei'
in pursuance of an Order in
Council.

" The ipiestion was as follows : —

"' Had the Legislature of On-
tario jurisdiction to enact the
0th section of the Heviscd .Statutc-i
of Ontario, cliai)ter llil, and eri-
titnlcd "An Act respecting Assigii-
ineiits and Preferences hv In<"l
vent Persons?"'

" The majority o tli couit
answered this o m tlu'

negative; hut on ,iie judges

who formed tin iority only

concurred with hi- '■•threit in-
cau.se he thought the cast was
governed hy a previous decision of
the same court ; had he con-
sidered the matter res ititegra
he would have decidcil the other

B.N.A. ACT, H. 92 (13). -DEFEAT OF ("IlEDITOUS. 303

ttiiv. Till' coiirt WHS tims (■(iniilly
divided in opinion.

•• It is not contcslrd that the
, iiiii'tiucnt, tliu validity ol' wliicli is
ill iliicstion, is williin the Icffisla-
\\\f [lowi'i's conl'ffn'd on the pm-
viiiciid k'ljisjatun' li\- si'C. ))2 of the
IJiitisli N'ortli Aniciica Aft, IHti".
wliicli ciialilcs tiiat lt'<:;isiatnn' to
iiiiiki' laws in relation to i>i'opcily
iiiMJ civil rijflitH in tlic province
unless it is withdrawn IVoni tlicir
|i'i'i»lMti\e conipt'lcncy l>y the |>in-
vi«ioiis of the iJlst scit'>n of thai
All. which confers upon the l)o-
iiiiiiidn Parlianu'iit tlie ext'hisi\i'
|i()\ver of leffislation with reference
to lumkniptey and insolvency.

"'{'he point to he detei'inincd,
llii'ii'fia'e, is the ineanini; of those
wiiiils in see. ill of the Hritish
Xi)ilh America Act, 1HG7, and
whitliei' they render the eiiaetnieiil
iiiipeiic'lieil ii/tra i'ires of the pro-
viiiciid lcjj;islatni'e. That cnact-
ini'iit is sec. 9 of tlie J{evised
.Sljitutes of Ontario of 18S7, c.
121, entitnied ' An Act respeetiiij;'
.\->.i;,'iiincnts anil Preferences i)y
lii^dlveiit Persons.' 'J'hc section
i« IIS follows : —

•" An nssif^nincnt for tho f^cne-
liil liencfif of crcilitors nnder this
.\ii shall take precedcnoe of all
jiiil<,';aii'nts and of all executions
not eoin|)letely oxecntcd l»y pay-
iiii'Mt, suhject to the lien, if any, of
an exeentiou creditor for his costs,
where there is but one execution
in the sheriff's liands, or to the
lion, if any, of the creditor for his
iiists, who has the first exocution
in the sheriff's hands.'

"In order to umlerstand the
effect of this enaetnient, it isneces-
siiry to have i-ecourse to other
sections of th(> Act to sec what is
meant liy the words ' nn assij;;n-
inent for the geia'ral henelit of
creditors nnder this Act.'

" 'I'he first section enacts that if
any person in insolvent circum-
stances, or knowing himself to he
on the eve of insolvency, volun-
tarily infesses jndfjment, or gives
a warulut of uttorney to cout'ess

judgment, with intent to defeat or .ATT.-Or-e. or
Ih'lav his creditors, or to give anv """",'" '•

,-., ,, ' " , .• .\TT.-(iKN. I)F

creditor a prelerenec* over his i>^^^„^
other credilois, everv such eon- , ,
lession or warrant ot attorney sliall ,„|,|,ts ami
he \oiil as against the creditors of I'ritui'cin'cs
the party gi\iiig it. ^Ont.; .Ait.

"'I'he second section avoids as
against the other creditors any
gift or assignment of goods or
other properly made hy a person
al a lime when he is in insohent
cireiimsiaiices, or knows that he is
on the e\(' of insohi'iicy, with
intent to defeat, delay, or prejudice
his creditors (H' give any of them a
la'cfel'ence.

"Then follows section three,
which i> important : —

'' Its first Huh-section proviiles
that nothing in the preceding
section shall apply to an assign-
ment made to the sheritl' of
I'lamty in which the dehtor i-esides
or carries on husiness, or to iiiiy
assignee resident within the pro-
vince with the consent of liis
creditors as thereinafter provided
for the purpose of paying, rateahly
and proportionately, and without
])reference or priority, all the
creditors of tlie dehtor their just
(h'hts.

"The second suh-section enacts
that every assignment for the
general heiiefit of cre<litors which
is not void under section two h.it is
not ina(h' to the sheriff nor to any
other ])erson with the prescribed
consent of the creditors shall he
void as against a subsefpient a.ssign-
nieiit which is in conformity witli
the Act, and shall be subject in
other respects to the [novisions of
the Act, until and unless a subse-
ipa'iit assignment is executed in
accordance therewith.

" The fifth sub-section states
the nature of the consent of the
creditors which is reipiisite for
assignment in the first instance to
some person other than the slieriff.

" These are the only sections to
which it is necessary to refer in
order to explain the meaning of
•sec. I).

304 B.N.A. ACT, s. 92 (13).— ACTS TO PRE^Ti:XT FRAUD.

Att.-Oes. or
(\ntahio v.

ATT.-(iE!». or

Canada.

Ill )•!■ As.sigii-
nieiitis mill
I'rt'fi'i't'nci's
(Out.) Act.

" Boforo (li,soussin<; tlio I'ffect of
the emu'tiuonts to wliicli attoiitioi,
1ms 1m' n ciillod, it will 1>o coiivo-
iiiciit to <;liin('(' !it tlic C'oiiistf ot
lof^ishition in relation to this iind
(•ojjnate nialtt'is both in the pio-
viiice anil in the Dominion. The
enact nient.s of the iirst and seeond
scetions of the Aet of 18S7 are to
lie found in suhstaiiee in .see.s. 18
and 1!) of the Aet of the (irovinee
iifCanai'a passed in 1 HoH for the
U'tler jtrevention of fraud. There
is a proviso io the latter section
which excepts from its oi>eration
any assij^nment made for the pur-
pose of payinj; all the creditf)i's of
the debtor rateably without piefer-
euee. These ])rovisions were I'e-
peafed in the Revised Statutes of
Ontario, 1H77, c. 118. A sli-jiht
amendment was made by the Aet of
1881. and it was as thus amended
that they were re-enaeted in 1887.
At the time when the .statute of
18.58 was passed theie was no bank-
rujitcy law in force in tla' pio-
vinee of Canathi. In the year
18(51 an Aet re.siHutinu: insolvency
was enacted. It applied in Lower
Canada to traders only; in l'|iper
Canada to all persons, whether
traders or non-traders. It pro-
vided that a debtor should be
deemed insolvent and his estat*^
shonhl iMfome subject to com-
pulsory Ucpiidation if he eom-
luitted certain acts similar to those
which hail for a Ion;; period U-eii
nuide acts of bankruptcy in this
country. Amonji these act:> "re
the assignment or the proeir ■■;: of
his property to be seized in execu-
tion with inte;it to defeat or ilelay
his creditors, and al.so a jceneral
assignment of his pro[)e!ty for the
iM-nefit of his creditor.-i otherwise
thr.n in manner provid<tl by the
statute. A jHTSon who was unable
to me«'t his engagements might
avoid compulsory li(|iiidation by
uuiking an assignment of his estate
in the manner provi<h'il by that Act ;
but miless he made sucli an assign-
ment within tlu' time limitcHl, the
licjuidation iK'came compulsory.

" This Act was in oi)eration at
the time when the British N'oith
America Act came into force.

" In 18G!) the Dominion P.nliii.
me, It passed an Insolvencv Act
which pro<'ee(U'd on nnieh the .suiic
lines as the provincial Aet of ISdl
but applied to traders only. Tliis
Aet was :>"pcah'v! by a new Iiiso].
vcney Act of 1875, which, ;ifi,.r
being twice amended, vas, toj;eili(.|'
with the amending Aet.s, repealed
in 1880.

" In 1887, the same y<ar in
which the Act under consideinlior,
was passed, the provincial lc<,'is-
lature aboli.shed priority auu)ii;;st
creditors hy an execution in tiic
High Court an<l County Couiis,
and provided for the dislribniion
of any moneys levied on an execu-
tion i-ateably amongst all execulidu
cre<litois, and all other creditors
nho within a month delivered to
the sheriir writs and certiticatcs
olitained in the manner provideil
for i)y that Aet.

" Tl eir Iior(lshi[)s proceed r.ow
to consider Hie nature of theeiiiui-
ment siiid to be ultra rirrx. It
postpones judgments and execu-
tions not completely executed In'
payment to an ass.wnment for the
lienetit of criHlitors nndei- the Act.
\ow there can be no doubt tliiit
the effect to Im' given to judgments
and executions, and the manner atid
extent to wiiich they ma , be nitidi'
available foi' the recovery of delits.
mv priiiiil fiiiir within the legisla-
tive |)Owers of the provincial I'ai-
liament. Kxecutioiis are a part of
the machinery by which delits are
i'eco\ered, and are subject to regu-
lation by that Parliament. A ere-
ditor has no inherent right to have
his debt satisfied by means of a
le\y by the sherifip, or to any
priority in respect of sik "i levy.
The execution is a mere creature
of the law which may determir.e
ami regulate the rights to which
it gives rise. The Aet of 1H87
which alMilished prioi'ity as amongst
execution crc'iitors provided a sim-
ple meau.s by which every creditor

.'•>.• I <rr«***^l«f«- ftr,'-

BN.A. ACT, s. 92 (13).— OLD BANKRUPTCY ACTS. 305

mi"ht ohtniii a shnro in the distri-
Imtion of money.'' It'vicd iindtT nn
pxccution l\v liny pinticnlar cro-
ilitor. Tho otlitT Act of tin- saiiip
vciir, ('(intaining the section wliieli
is inii)(!icii('d, f,'oos a .stop furtlit-r
iiimI jri^'''* •" "'i 'Toditors under an
as<iiniiii(Mit for their <j;eneral benefit
II rii'lit to a ratealiie share of the
a.-; t.i of tiie (h'l)tor, inehidiiif;
;iio.<e which have been sei/.cd in
(xi't'iition.

'' ]5ut it is ar{!;ued tlint inasmuch
lis tills iissifiument contemjjhitcs tlie
insolvency of the debtor, and would
oiilv lie made if lie wei-e insolvent,
such a [irovision purports to deal
witii insolvency and therefore is a
matter exclusively within the juris-
liiftion of the Dominion Parliament.
Xow it is to be ob«ei'ved that an
assi<;niiient for the jjeneral benelit
(if (Tfditdi.s has long been known
to the jurisprudence of this country
anil iilsii of Canada, and has its
foiw and efl'ect at couunon law
quito independently of any .system
of liiinkriiiitcy or insoUency, or any
ii^isliiti.in relatinjr thereto. So far
from liciiifj regarded as an es.sontial
pint of the baukriiptey law, such
iin ii.ssigiuiieiit was made an act of
liaiiknipti-y on which an adji.dica-
tion might be founded, am', by the
law (if the province oi Canada
wliiili prevailed at the time when
till' Diiiniiiion Act was passed, if
was (Hie of the grounds for an
mljiiiliciition of insolvency.

"It is to bo «)bsorved that Ihi'
word ' liankruptcy ' .s'as app.u'cully
not iisi'd in ('anadian legislation,
I'Mt the iu.solveucy law of the pro-
vince of Canada was precisely aiia-
loi^ous to what was known in Kug-
liiiil lis the bankruptcy law.

"Moreover the operation of an
iissif;niiieut for tin- benelit of
ii'editors was precisely the same,
whether the assignor was or was
not ill fact insolvent. It was ojm'u
to liny delitor who might (h'cni his
solvency doubtftil, aixl who desired
ill that case that iiis creditors should
l»' e |iiifably dealt witii, to make
an iissignment for their benefit.

.S 2340.

Tlio validity of tho assignment and Att.-Oen. op

its effect would in no way depend ♦^^ntaiiio v.

on tho insolvency of the assignor, ^y^"-"*^^' °'

, 1 . , , ,. , . 1 . *, Canada.
and their Lordships think it dear

that the 9th .section would equally ^" '^ i^^'

, , , , , . I / ments and

apply whetlier the assignor was or Preferciioes
was not insolvent. Stress was laid (On;.) Act.
on the fact that the eiiiictment
relates only to an assignment under
the Act containing the section, and
that the Act pre.scrilM's that the
sheriff of tho county is to be the
■.issigneo unless a majority of the
creditors consent to some otiier
assignee being named. Tliis d(H'S
not appear to theii- Lordships to
be material. If tht; enactment
would have been intra rircx, sup-
posing sec. {) had applied to all
assignments without tlie.se re.stric
tions, it seems didieull to contend
I '.at it became vltra vires by reason
of them. Moreover, it is to be
observed that by sub-.sec. 2 of sec.
;{, assignments for the benefit of
creditors not made to the sheriff or
to other persons with tlie prescrilied
consent, although they are ren-
dered void as against assignments
so made, are nevertheless, unless
and until soavoiih'd, to be 'subject
ill other respects to the provisions'
of the Act.

"At the time wlien the British
Xortli America Act was passed
bankruptcy and insolvency legisla-
tion existed, and was based on very
similar provisions both in Great
Hritain and the proviu'-e of Cainida.
Attention has already been drawn
to the Camidian Act.

" The English Act then in force
was that of 1H()1. That Act ap-
plied to traders and iioii tiailers
alike. I'rior to that date the opera-
lion of the nankrnptey Acts had
been eonliueil to traders. The sta-
tutes relating to insolvent debtors,
other than traders, had been do-
signed to provide for their I'eloase
from custody on their making an
assignment of th(' whole of their
estate for tho iK-netit of their
creditors.

" It is not necessary to refer in
detail to the provisions of the Act

Att.-Gen. op
Ontahio v.
Att.-Gen. of
Canada.

In re Assign-
ments and
Pri'fcrencps
(Ont.) Act.

306 B.N.A. ACT, s. 02 (13).— DOM. AND FORESHORE.

of 1861. It IS enough to my that
it provided for n legal adjudication
in bankruptcy, with the conso-
quen(!c that the bankrupt was di-
vp.stod of al'. his property and its
distribution amongst his "reditors
was provided for.

" It is not necessary, in their
Lordships' opinion, nor would it
be expedient, to attempt to define
what is covered by the words
' l>ankruptey ' and ' insolvency ' in
see. 91 ol" the British North
America Act. But it will Iw seen
that it ifl a feature common to all
the systems of bankruptcy and in-
solvency to which reference has
been made, that the enactments
are designe(l to .secui'c that in the
cnse of an insolvent pcr.son his
as.sets shall be rateably di.stributed
amongst his creditors, whether he
is willing that tliey shall be so
di.stributed or not. Although pro-
vision may be made for a voluntary
assignment as an alternative, it is
only as an alternative. In reply
to a (luestion put by their LiinU
ship.s, the leii'iied eoun.sel for the
responde.-.t were unable to point to
any scheme of bankru|)tcy or in-
solvency legislation which did nut
involve some power of compulsion
by process of law to secure to the
crcihtors the distribution amongst
them of . the insob nt debtor's
estate.

" In their Lordships' opinion,
these considerations unist be borne
in mind when interpreting the
words 'bankruptcy' and 'insol-
vency ' in the British North
America Act. It appesirs to their
Lordships that such provisions as
are fouiul in the enactment in
(piestion, relating as they do to
assignuM'Uts purely volinifauy, do
not infringe on the exclusive legis-
lative [)ower conferred upon the
Dominion Parliament. They would
ob.serve that a system of bank-
ruptcy legislation may frequently
recpiire various ancillary provisions
for the puriHjse of preventing the
scheme ot the Act from being de-
feated. It mav lie neeessai'v for

this purpose to deal with the effect
of executions and other mattois
which wotdd otherwise be within
the legislative competence of the
provincial lej 'ature. Their Lord-
ships do not tioubt that it would bo
open to the Dominion Parliamont
to deal with such matteis as [)iiit
of a bankruptcy law, and the pro-
vincial legislature would doubtless
be then prechuh'd from interfering
with this Icgi.slation, iuasnnieli sis
such interference would affect tlio
bankruptcy law of the Dominion
Parliament. But it <loes not follow-
that stich subjects as might pro-
perly be ti'cated asaiu-illary to sncii
ii liiw, and lherefor(^ witliin tlic
powers of the Dominion I'liiliii-
ment, are excluded from the lejjis-
lative authority of the provineiiil
legislature when there is no bank-
ruptcy or insolvency U-gislation of
the Dominion Parliament in exist-
ence.

"Their Lordships will tiiereforo
luuubly advise Her jNIajesty tlint
the decision of the CoiU't of Appoiil
ought to be reversed, and that the
(piestion ought to be answered in
the affirmative. The parties will
bear their own costs of this appid."

The Dominion Parliament enn
deprive the public of access to a
portion of the foreshore l)y givinj;
power to a railway conipan\- to
build on such alleged right of
way : City of Vancouver v. Cana-
dian Pacific Railwav, Feb. 20,
1H91, 2.3 S. C. R. 1, aflirming 2 S.
C. B. C. ;506.

Tlie Canadian Temperance Act,
1H7H, is not a matter in relation to
property and its i-ights, for if had
in its h'gal as[)ecf an obvious and
close resembhince to the laws
which place restrictions on the sale
and custody of [)oisoimus drugs
or of dangerously explosiv'e sub-
stances. Nor could it 1m' regarded
as restriction on " civil rights,"
lor laws of this nature, like laws
uuiking if crinnnal for n man to .sot
fire to hi.s hou.se, to overwork hi.s
horse, or prohibifiag the sale or
exposure of cattle luiving a con-

B.N.A. ACT, s. 02 (13).— UOM. AND ISLANDS.

307

tflffioiis (lisenso, l)olong to the sub-
ject of public ^vroiigs rather tliim
to that of civil rights. See Ru.ssoll
,. The Qiioon, June 23, 1882, 7
\np.Cfts. H29;51 L. J. P. C.77;
W L. T. 889.

In Ci'suiNG V. Ddpuy, .,* pril 15,
1880,5 App. Cius. 409; 49 L. J.
P, C. 63; 42 L. T. 445, the np-

|)eilant wns refused leave to appeal
by tiic (4ueen'.s Bench, Quebec, on
the ground thr* ". ■! Dominion Act,
40 Vict. c. 4 •!. 28, by edding
to soc. 128 o '.e Dominion Act,
38 Vict. c. 10., " The judgment of
the court to which under this section
the appeal can be made shall be
final." The Privy Council held
the Koyal prerogative to allow an
fipijoal wns not touched by tbe
Dominion Act, as it did not profe.«s
to touch it, and upon general
principles the rights of the Crown
can only 1m' taken away by expi-ess
words, and granted lea\ e to api)e!il.
Sec sec. 91, sub-sec. 21.

The provinces can by law de-
termine the terms upon which aliens
luay become entitled to preempt
land within the province. Ofjinion
of Minister of Justice, 3 June 1873.
Prov. Leg., 18HG, 721.

Ritchie, C.J., said in the Citv of
Fredcricton, April 13, 1880, 3 S.O.K.
j05 [sec antCy sub-sec. 27, sec. 91 ] :
"To my mind it seems very
dear tlmt the general jurisdiction
or sovereignity " wliicli is conferred
upon tlip Dominion " uniphatieally
iiej;ativcs the idea that there is not
witiiin tli(^ Dominion legislative
]io\v(;r or authority to deal with
ihe question of prohibition in ic-
«|)oct to the sale or tnifRc in in-
toxicating liquors or any other
article of trade or commerce. It
is said a power to regulate does not
include u power to prohibit. Apart
from the general legislative power
which, I think, belongs to the
Dominion Parliament, I do not
entertain the slightest doubt that
the |K)wer to prohibit is within the
|K)wcr to regulate." But see Oov.-

Gen. Dominion v. The Four Pro- Citv op Feed-
vinees, and The Liquor License ericton.
Acts, 1883-4, sub-sec. 9, sec. 92,
where the result appeared to be
that the Dominion couhl not pro-
hibit totally. See argument in
Gov.-Gen. There Lord Herschell
[then Sir Farrer Her.sehellJ argued Cdsuinq v.
that in Citizeu.s' Insurance Co. v. DfPuv-
I'arsons it was held that the local
Act was not ultra vires because it
was not overborne by the provision
as to the regidation of trade and
commerce. It was the cieation of
certain implied' conditions in that
piu-tieular [)rovince ; relating to the
property in that province; also a
matter tlealing with civil rights in
that province.

In Forsyth r. Buuv, June 14, Fohsytii v.
1888, 15 S. C. R. 543, the con- l^'-'"^-
stitutional question as to the validity
of 35 Vict. (Dom.) c. 115., which
incorporated the Island of Anti-
costi Co., was raised. It was
held by Strong, Fournier, and
Taschereau, J J. (Ritchie, C. J., and
Gwynne, J., dissenting), that as
the sale to the company had been
recognised by the person whom
the plaintiff n'pre.sented, and the
plaintiff her.self having been a
party to the sale by licitation (a
compulsory i)roprietors' .side) of the
ishind, she was estopped from
raising the constitutional quv tion
and from ( laimiug to .xet aside the
deed of side.

Sir W. Ritchi.", C.J., said :

This Dominion Act, so far as
it professes to confer the right to
piu'chase the island of Anticosti, in
the province of Quebec, and to sell
or leas«' Ihe same, is in my opinion
clearly idfra viri.s of the Dominion
I'ailiament. It is for a provincial
oliject, and ail'icting property and
civil rights in the province of
Quebec alone; the legislative right
to incorporate such a company
bidongs to the provincial h-gis-
lature umler the B. N. A. Act.
The company, tlu-n, having no legal
existence to enulde them to pur-

u 2

308

B.N.A. ACT, s. 92 (14).— RIGHT TO APPEAL.

I . M

FonsTTii V. chase, hold, or sell the Innd, the
Btniv. answer to the plaintiff's contention

simply is : If the Dominioi) Act is
ultra vires, the alleged company
never was incorporated in reference
to j)rovincial objects, or in con-
nection with property and civil
rigiits in the province; therefore,
there was no charter to be \ iolated,
nor any charter into the validity of
which it is necessary to inquire.
The existence of this company is not
questioned collaterally, but directly,
in this case, the plaintiff claiminj;
by, thronf;h and under the alleged
cor])oration, which,as.shown, .should
have no existence as such.

In that case a petition for special
leave to appeal was presented to tlio
Judicial Committee. In refasiti"
jjcrmission to appeal. Sir Danus
Peacock [there being also ))nscnt
Lord Ilobhouse and Lord 'Mao.
naghten] said the constitutional
point might have been raised; h\\\
the opportunity to do so not having
l)een taken, tiiat question vn\\\d not
be re-opened : Queen's Or<l(r, 10
Aug. ISHH; 11 Can. Gaz. 118.

See Marbury r. Madi.><on, o S. C.
U. S. (1 Craneh) 137. An Act re-
l)ugnant to the Constitution Ciinnot
b(M'ome a law.

(14.) Tlie administration of justice in tlio province,
including? tlie constitution, maintenance, and
organization of provincial courts, both of civil
and of criminal jurisdiction, and including
procedure in civil matters in those courts.^

1 The Imperial statute, in a.ssigning
to the Dominion Parliament (sec.
!)1, sub-sec. 21) V)ankruptry i.imI
insolvency, intended to co'ifer on it
legislative power to int< rfere with
procedure within the provinces so
far as a general law relating to
those subjects niigiit be affected
therein.. And t! crefore the Privy
Council decided in Cn.shing r.
Tiif:nF.nm v, I>"P"y» '» Q' J^-. Q<i<'hec, 2 March
L.VNDI.V. 1H7H, 22 L. C. J 201 ; in P. C.

April 15, 1880, Wheeler's P. C.
Law, 1 13 ; 5 App. Cus. 409, p. 416 ;
4!) L. J. P. C. 03; 42 L. T.
M5 [aiife, p. 80], that the Par-
liament of Canadi'. would not in-
fringe the exclusive powers given to
the provincial 1< gisiatures by en-
acting, l)y 40 Vict (I)om.) c. 41.
H. 28, that the judgment of the
Conrt of Que* n's Bench in matters
of insolvency should be final and
not subject to the appeal as of
right to Her Maje.xty in Council.
»S>e also Tenrant v. Union Bank
of Canada, Oiitario C. A., 8 Jan.
1892, 19 O. A. R. 1, Dec. 9, 1893,
[1891] A. r. 31 ; 03 L. J. P. C.

2.); G9 L. T. 774 [see suli-s.c.
13]. The rorvM is, the Dominion
Parliament can tai:e away leave to
appeal as of right, but not tiie pre-
riig'itive of the Queen to grant
leave, unless it is done by express
wonls. And thcv is a tiiird cnsc
where no right to appeal ever did
exist ; in that cnso it is doubtful if
the Queen can give leave.

Tiii^:nEiuiE r.LAynnv, in Sup.C.
Queliec, 29 May 1870; in P. V. 7
Nov. 187(5, 2 App. v'as. 102; 10 L.
J. P. C. 1; .35 L. T. (540; 25 W.
K. 21G ; 3 Q. L. R. 202, was a cnso
where tlie provincial legislature as-
signed to file provincii'l couit con-
troverted election p'.aitions.

Lord Cairns, L.C. [there lM>ing
also present Sir Barnes Peacock,
Sir Robert Collier, and Sir Henry
Keating], delivered the following
judgment on the |M'tition for leave
to appeal : —

"The petitioner in this cn.se
states that he was a candidate at
an election held in July 1875,
in the province of Quebec, for tiie

"^f •4-l«**44>r»*»# »n*

B.XA. ACT, s. 92(14).— THE QUEEN'S PUEROaATIVE.

309

offict' of mtJinbor to reprt'sent the
tlectonil district of Montiimnii'i- in
the Icgisliitive assembly of the pro-
viufO, and that hy was dochircMl
(luiv elictod ; but that after the
liectioii a petition wax presented
|)V c'crtiiin electors uf^ai'.ist the
ri'tiuu of the ;x'titioncr, alleging
that lie had been gnilty of corrupt
imictices by himself and his agents,
ami praying that the seat might be
(litlari'd \acaut, and the i)etitioner
(Ict'lari'd dis(pialified, in accordance
with the provisions of the Quebec
Controverted Elections Ac't. He
thtu states that the iK'tition was
tried according to the Act before
the court, and that the court pro-
nounced a M-ntence against the
jK'titioner, declaring the eU-ction
null and void, and declaring him
f!;uilty of corrupt practices, lioth
liersoiiaiiy and by his agents. The
l)etition states certain objections
which the ix'titioner nuikes to the
decision of the court, and prays
tiiat Her Majesty in Council will
lie graciously pleased to order that
the petitioner shall have special
leave to «|>peal from the judgment
of tiic Su|M'rior Court for the pro-
\ iuee of (2u<!bec of the 29th 5lay
187G, that is to say, from the
judgment declaring the election of
tile [tetitiouer to be null and void.

"The Act of Parliament in
((iK'stion is f h(( Quebec Controverted
Elections Act of the year 1H75.
That Act re|)ealed an Act of tlu'
(iuebee Legislatiu'e of the 3Gth
year of Her Majesty's reign, that
is, in 1872, which was entituled
' An Act to provide for the Deci-
sion oi Controverted Elections by
the Judges, and to nmke Ijctter
provision for the Prevention of
Comipt Practices at Elections.'
That Act of 1S72 api)ears tc have
hwn tile Act which, in Qu»'bec,
transferred to the court the decision
of contiovi'rted elections, which
Itcfore that time was vested in or
Was retained in its own hands by
the legislative assembly of the pro-
vince. By the force of the two
Acts of l><72 and 1875, in Quebec,

as in this country, the decision of TuiSnBttuK
(juestions of that kind has now I'*"""^-
become vested in the Supreme
Court. The 89th .section of the
hiter of these two Acts, the Act of
1875, provides that the sujxjrior
court sitting in review shall deter-
mine,— first, whether the member
whose election or return is com-
plained of has been tluly elected or
dt'chired elected; second, whether
any other person, and who, has
Ijeen duly elected; third, whether
the election was void ; and fourth,
all other matters arising out of the
petition or reqtilring its determina-
tion. Then the 90th section en-
acts, ' Such judgment shall not be
susceptible of a[)peal.'

'♦ Now, upon that JX)th section it
is contended on behalf of the peti-
tioner that it jloes not take away
any prerogative right of the Crown ;
that tlu! Crown and the preroga-
tive of the Crown is not sjiocially
or particularly mentioned ; and that
the general rule is, that the pre-
rogative of the Crown cannot be
taken away exceiit l)y a siKicific
enactment. It is said that this
section may be satisfied by holding
that the intention of the legislature
was that there should be no api)eal
from a sujierior court to the Court
of Queen's IJench in the colony,
which was tin- kind of appeal that
exi.sted in civil ca.ses in the colony,
and that the prerogative of the
Crown is ncc in any way affected.

" Their Lordships wish to stiite
distinctly, that they do not desire
to imply any doubt whatever as to
the general principle, that the pre-
rogative of the Crown cannot be
taken uway except by express
words; and they would lie pre-
[Mired to hold, as often has been held
l)efore, that in any case where the
prerogative of the Crown has
existed, preci.se words must be
shown to take away that preroga-
tive. But, in the opinion of their
Lordships, a somewhat different
question arises in the present case.
These two Acts of Parliament, the
Acts of 1872 and 1875, are Acts

310 B.N.A. ACT, s. 92 (11) —UNCOMMON LEGISLATION.

Th^-beroe v. peculiar in their chnractcr. Tiioy
Laudky. any not Acts constituting or pro-

viding for the decision of iiu'ie
ordinary civil rights ; tiiey are
Acts creating an entirely new, and
up to that time iniknown, jtuis-
diction in a jiartieular court of the
colony for the purpose of taking
out, with its own consent, of the
legislative assembly, and vesting in
that court, that very peculiar juris-
diction ,■ hieh, up to that time, had
existed in the legislative assemhly
of deciding election petitions, and
determining the status of those who
claimed to Im' members of the legis-
lative? assembly. A jiu'isdiction of
that kind is extremely special, and
one of the obvious incidents or
consecpiences of such a jurisdiction
must be that the jurisdiction, by
whomsoever it is to be exeicisecl,
should be exercised in a way that
should as soon as jjossible become
conclusive, and enable the con-
stitution of the legislative as,senibly
to be distinctly and speedily known.
Accordingly we find, on looking at
the Act of Parliament, that after
providing by the H9th section as to
the matters which the superior
court is authorized to determine,
the 91st section deehnt's that a
certified copy of the judgment .«hall
be transmitted without dehiy to the
Si»caker, and another to the pro-
thonotary in the district in which
the petition was presented, and
then the 118th section [irovides : —
* The SiK-aker shall, at the earliest
practical moment after having re-
ceived the judgments and reports,
adopt all the proceedings necessary
for confirming or altering the re-
turn of the returning officer, or for
the issuing of a new writ for a new
•'lection within .30 day.s, or for
otherwise carrying the final jutlg-
nient into execution, as circum-
stances may recpiire, lie may, for
the issuing of such writ of election,
ad<Iress his warrant umler hancl
and seal to the Clerk of the Crown
in Chancery.' Tnen the I19tli
section is: — 'The Speaker sliall
without delay commuuicute to the

legislative assembly the judgments
and the reports received, and his
own proceedings thereon.' And
the 12()th section is: — 'When a
s|M'cial report has been received,
the legislativi' assembly may make
such order in respect of such
special report as it may deem
proper.' The wlude scheme, there-
fore, of the Act of Parliament is
that, once the action of the superior
court takes place, and the ileeision
of the superior court arrived at,
the machinery is to go on just ns it
had formerly gone on inside the
legislative a.^sembly ; — writs are to
be issued, ;-fats are to be taken,
other proceedings are to be had, iis
woidd have 'i"en the case beinic
the court was '.'ailed into operatien,
and when the legislative assenilily
decided these matters by its own
authority.

" Stopping there, it woidd U-
very ditlicult to do otherwi.se tluui
conclude, from the character of
these enactments, that the object
which the legislature had in view
was to have u decision of the
superior court, which, once arrived
at, .should be for all purpo.ses con-
elusive.

" But there is a further con-
sideration which arises upon this
Act. If the judgment of tiie su-
l>erior court should not be cou-
(•lusive, of cotu'ise the argument is
that the power which is to Im-
brought to bear to review the
judgment is the power of the
Crown in Council.

" Now, the subject-matter, as
has iK'cn .sud, of the legislation is
extremely peculiar. It concerns
the rights and the privileges of the
I'lectors and of the legi.shitive
H.ssembly to which they elect meui-
l)ers. Those rights and privileges
have always in every colony, fol-
lowing the example of the mother
country, been jealously maintained
and guarded by the legislative
assembly. Above all, they have
been looked upon as rights and
privileges which iMTtuin to the
legislative assembly, iu complete

►•x nin'»hMintT«»*<r^*

B.N. A. ACT, »<. 92 (11).— APPEAL QUESTIONABLE. 311

indeiHinK'nce of tlio Crown, so far
as tiny properly exist. And it
\voul<l !'<' " resnlt sonie..ii!it sur-
prisinfT, i'"*' Imrdly in consoniince
with llie g«=neral selienie of tlie
li'irislation, if, "•itli rcj^ard to ri<;lits
1111(1 priviie<;('s of tliis kind, it were
l(> 1h' found that in the la.-st res<irt
the determination of them no
|oii<;('i' lii'longed to the legislative
iissemlilv, no longer belonged to
IJK' siijierior cotirt wliieh the legis-
lative assembly had put in its phiee,
liiit belonged tt) the Crown in
(."oiuieii, with the advice of the
mlvisers of the Crown at home, to
1k' (letermiiUMl witJKJUt reference
cither to tiie judgment of the legis-
lative assembly, or of that court
whieii the legi.slntive assembly had
substituted in its place.

"These are considerations which
liiul their Lordshijis not in anyway
10 infringe, which they would 1h' far
I'loiii doing, upon the general prin-
ii[ile that the prerogative of the
Crown, once established, cannot be
liiken away, except by express
words; but to consider with anxiety
whether in the scheme of this
legislation it ever was intended to
iiviite a tribunal which should
have, us one of its incidents, the
liability to be reviewed by the
Crown under its prerogative. In
(ilher words, their Lorclships have
ti) consider, not whether there are
express words here taking away
jirerogative, but whether there ever
WHS the intention of creating this
irihunal with the ordinary inciih-nt
iiF ail appeal to the Crown. In the
(ipiiiioii of their Lordships, advert-
ing to these considerations, the
noth section, which sjiys that the
judgment shall not be susceptible
»f ftjipeal, is an ena<'tnient which
indicates dearly the intention of
till' legislature under this Act, — an
Ad which is assented to on the
part of the Crown, and to which
the Crown, theiefore, is n party, —
to create this tribunal for the pur-
pose of trying eh'ction i)etitions in
H mniuier which should make its
decision final to all purposes, and

should not annex it to the incident Tii<beroe v.
of its judgment being reviewed by L*""'"'-
the Crown under its prerogative.

" In the opinion, therefore, of
their Lord.ships, there is not in this
case, adverting to the jx'culiar
character of the enactment, the
prerogative right to admit an ap-
peal, and therefore the petition
must be refusetl.

'* It is, of cour.se, in this view of
the case, luinecessjiry to consider
whether, if there had In'en a right
to admit an appeal, it would have
been a ease in which, in the discre-
tion of this tribunal, an api)eal
should be admitted. On that point
their Lordships have never enter-
tained any shadow of doubt. They
(dearly are of opinion that, even if
there was the pow(>r of admitting
an appeal, this i.s not a case in
which an ajipeal ought to lie ad-
mitted ; but, in their opinion, it is
not a case in which it wa.s ever
contemplated or intended that there
should be a jiower to admit an ap-
peal on the part of the legislature.

" Their Lordships were in one
part of Mr. Benjamin's argument
pressed with another matter, that
even if an appeal should not be
here admitted generally, yet that
there was in the finding of the
judge a subordinate part, which
ought to be brought byway of review
bflore this tribunal. Mr. Benjamin
said that the judgo had found that
the petitioner was personally guilty
of corrupt practices ; and then he
said that the (Quebec Eh'ction Act,
by a particular section, the 267th,
provided that if it is proved before
the court that corrupt practices have
been committed by or with the
actual knowledge or consent of any
candidate, not only the election shall
be void, but the candidate shall,
during the seven years next after
the date of such decision, be incap-
able of being elected to and of
sitting in the legislative assembly,
of \ oting at any election of a mem-
ber of the House, or holding an
office in the nomination of the
council of the Lieutenant-Governor

'!'

312 B.N.A. ACT, s. 92 (14).— "CIVIL JURISDICTION."

Tiir^;DBRnB v.
La.nduy.

Valin t'. Lano-

LOIS.

of till' proN iiioe. Mr. Uonjiiuiin
c'tiiitt'iulfd that the Act of I'ariiii-
nu'iit, so far as it cii^raflcd on the
decision of the jmlt^f this di'ciara-
tion of incapufity, was iiffra vires
the power of (he h'ii;isiatiiie of the
|irovince. Upon that point tiieir
Lordships do not tiiinii it neeissary
to express any opinion whatever.
If the Act of Parliament was in
this respect, as contended, ultra
vires the provincial lejfi.slature, the
only resnlt will 1h' that the eon-
s<'qnenee declared liy this section of
the Act of Parliament will not
ennre a<;ainst and will not allect the
petitioner ; bnl it is not a subject
\»hich should lead to any different
determination with ref^ard to that
part of the case.

" Upon the whole, their Lord-
ships will humbly advise Her Ma-
jesty that this petition be dis-
missed."

In Vai.i.n r. L.\Miu»is, in S. C,
Quebec, Jan. 1H7S), 5 Q. L. 11. 1,
the (piestion was whether the court
could legally dischargi! the duties
assigned to it by the Dominion
Controverted Elections Act, 1H74.

Meredith, C.J., said: "The
answer to that cpiestion must de-
{wnd on the right of the Dominion
to legislate on the subject, and upon
the ('Xtent of the powers of this
Court considered in relation to the
(lutii'S thus u.ssigned to it " l)y tlie
Act. . . " 1 may at once admit,
although the adnii.ssion by some
may be deemed to go too fai",
that in my opinion the ' con-
stitution ' of provincial courts,
which i.s exclusively within the
power of the provincial legislature,
includes the power to determine the
jurisdiction of those courts; and
|>laces that jiu'i.sdictiou beyond the
control of the Dominion Parlia-
ment. If that opinion be w»'ll
foundwl, then the [towers of this
Court could not be enlarged by the
Controverted Elections Act of
1H74 ; and, therefore, according to
luy views, it becomes necessary to
inquire wluit are the powers of this

Court according to its constitution.''
Reads sec. 2, c, 7H. of C. S. L. C, us
follows, '"The Superior (*ourl Ims
original civiljurisdict ion througlidiit
Lower Canada, with fidl power iiiul
authority to takecogiii/.anee of, hear,
try, and <l(termine in the first in-
stance, and in line course of law, r///
t ivilpleaSfCauses, and mailers uhdt-
soever, as well tho.se in which the
Crown may be a jtarty, asallolli("s,
excepting those [)urely of Adiniraitv
juri.sdietion, also those over wliieli
original jurisdiction is givcii td ilu'
Circuit Coiu't.'" HisLordship ilun
continued, that the court having in
effect civil jurisdi<'tion througiidat
the [trovincc to try and determine
^(illeivil matters,' subject to cci tiiiii
exce|)tions, the (piestion reduced
itself to this. Was the trial of a con-
ti'sted election petition a civil mut-
ter? And he considered it was, once
the House of Commons, like tiic
House of (\tmmons, England, hail
relimpiished the privilege of deter-
mining contested election petitions.
On the further jwiiit that the I'ar-
lianient of Canada was held in
another province, he said (p. 11):
" It may be true that the jin-isdic-
tion of the provincial court, nl'
which I am a mi'udter, cannot lie
extended by the Dominion Parlia-
ment; but I am not aware that llieic
is anything to [U'evcnt me, as a
judge named by the Dominion
Government, from discharging any
duty a.ssigncd to me by the Domi-
nion Parliament. . . Tlu' f rauiers of
the statute of 1873 deemed it pru-
(U'lit to make the judges of the
Superior Court a new Dominion
Court, as to the powers of which
there couUl be no dilBcidty. But I
cannot see that any such proceeding
was necesstu-y, with respect to
judicial powers intended to be given
to the judges .separately, acting out
of court, as I am now doing. If
the Dominion Parliament, as was
done by the Act of 1873 (315 Vict,
c. 28.), could make nie a judge of
another court, and then give me, out
of court, the powers in question, I
fail to see why the sume legislature

B.N. A. ACT, s. 92 (11).— POWERS TO JUDGES. 313

i^i 'm

■I

colli"! not confer uikjii me the wmic
powers without goinj; tlirouf;!! the
form ol' creiitiiif; 11 ucw court." . .
His Lordsihip tlien saiil ii judge
iioldiiig a trial under sec. 18 of the
Alt of 1H74 (37 Vict, c 10., which
iqK'iiK'd the Act of 1H7;{) would he
in tlie same i)o.sition as the judges
were who heUl election courts
iiiultr the Act of 187;i. That a
miiiilK'r of Americau ca.ses had been
leiVrrt'd to, but he did not dwell
u|K)n them as he did not ((ucstion
tije profiosition they were inteuiled
tu ^support, namely, that under the
Act of Confederation the Uoniinion
Parliament cannot enhu-ge the
jurisdiction of the jjrovincial
courts. Again, liis Lordship .siid the
qui. 'ion ill TlielK'i'ge v. Landry
[aw aoufc] wa.s diirerent, inasmuch
as the main (juestion in this ca.si-
wius the power of the Dominion
Parliament to impose certain
liiitics ui)on the ju-ovincial courts.
Hut no such question was raised in
Theltergc r. Landry; the statuti's in
(lui'st ion in that case being/>TOi;/«t7'«/
statutes respecting provincial courts ;
there being no question as to the
power of the provincial legislatures
to pass such statutes. He then
passed to the objection that, not-
withstanding the provision of the
Imperial Act, declaring that the
provincial legislature has exclusive
power to legislate as to procedure
in civil matters in provincial
courts, the Domiuiou Parliament,
by the statute impugned, has de-
clared what shall be from be-
giuuiug to end the i)rocedure in
l\ni provincial court, in this civil
mutter, and continucil : " In order
(p. 14) to arrive ut the true mean-
ing of the section respecting pro-
mluie in civil matters in the pro-
vincial courts, it is necessary to vv-
collect that although very much
the fiicater part of the civil matters
in tlic provincial courts are matters
couiph'tely within the powers of
the provincial legislatures, yet that
there are some of these matters —
for instance, the present mutter, uud,
I think I may add, matters in insol-

vency— wholly beyond the powers Vai.in v. Laro-
of the provincial legishiture [but '-'^"*-
si'cCushing v. \h\\)\\\,antv, p. 7H] ;
aiul, bearing this in mind, 1 think
the provisions of I lie Imperial Act,
giving the i>rovinci«l legislature
exclusiv(! power to make laws re-
specting proceedings in 'civil mat-
ters' in provincial courts, may from
the nature of the subject be under-
stood as meaning 'civil matters'
nit kin the power of those Ivijislu-
tiirvs, and not as giving, as is con-
tended, to the provincial legisla-
tures power to establish the pro-
cedure ill civil matters, in other
res[)ects, utterly beyond their
power, and completely under the
control of the IJominion Parlia-
ment. Now if the exclusive power
of the provincial regislatures as to
the regulation of procedure does
not extend to matters, as to which,
in other respects, they have no
control, and which in no respect
concern them, then such inat-
ter.s, even as to procedure, would
I)e within the general powers of
the Dominion Parliament, and the
dilliculty as to procedure would
disappear." Anirmedin 3 S.Cll. 1,
by Sir Wm. Kitchie, CJ., Foiirnier,
Henry, Taschereau, and Gwyuue,
JJ.

Valix v. Lanolois was heard
and decided in the Privj- Council on
a motion for special lea\e to apiieal,
Dec. 13, 1879, i App. Cas. 115;
49 L. J. P. C. 37 ; 41 L. T. GG2.

Lord Selboiiic, delivering judg-
iiunt, dealing with sub-sec. 11,
.sec. S)'J, said [:, Ai)[). Cas. p. 11!);
.sec, for full judgment, ante, p. IH] :
" Even if sec. 41 were not in tin-.
Act, it would not be (piite plain
that the transfer of the jurisdic-
tion to determine upon the right
to seats in the Canadian Legis-
hiture — a thing which had been
always done not by courts of justice
but otherwi.se — would come within
the natural import of those general
words, ' the administration of jus-
tice in the province, and the con-
stitution, maintenance, and organi-

I ' ' >

I ii

31 1 B.N.A. ACr, > 02 (1 1),— SUBJECT-MATTER A DOM.

iv'iii;

Vamn i\ Lano- /atioii (if proviiK-ial courts, iiixl
'•""*• procedure in civil iiiiitterH in those

courts.' Hut one tliiiif; lit lensl is
dear, tliat llio.xe words do not point
expressly, or Ity any necesMiry iin-
pliciition, to tlie particular subject
of ele<'tion petitions ; and when
we find in the .same Act another
elau.se which ileids expressly with
tho.se petitions, there is not the
sn<allest dillieully in takin^j the two
eliuises toffetlicr and plat inj; upon
them liolh acon>istent construction.
That other clause, the list, ex-
pressly says that the olil mode of
detciininin^ this class of (|ucstions
was to continue until the I'lnlia-
UHMit of Canada should otheiwi.M'
pi'o\ ide. It was, therefore, the
.('arliament of Canada which was
ofhcrwise to proviile." ....
'• Ev»'n supposing that this wei'<'
not in truth and in sid)stanee the
creation of a new couit. If the
sulijeet-matter is withid the juris-
diction of the Dominion Parlia-
ment it is not within the jurisdic-
tion of the provincial parliament,
and that which is excluded hy the
5>lst section from the jurisdiction of
the Dominion Parliament is not
anything else than inatter.s coming
within the classes of xulijects
assigned exclusixcly to tlu' legisla-
tuH's of the i)rovinces. The only
material class of sulijects relates to
the administration of justice in the
provinces, which, read with tlu'
41st section, cannot Im' rca.'^onably
taken to have anything to do with
election petitions. There is, there-
fore, nothing here to raise a doubt
about the |)ower of the Dominion
I'arliament to impose new duties
upon the existing provincial courts,
or to give them n«'W powers as to
matters which <lo not come within
the ehiRses of subjects assigned ex-
clusively to th«; legislatures of the
provinces."

Kennedy v. Pukckll, in S. C.
29 March 188S, 14 S. C. 11. 453, re-
versing Rose, J. ; in P. C. 7 July
1S8H, decided that the decision of
the Supreme Court is final upon

Kknvkdv r.

I'UUI'KI.I..

questions f»f ele«'tion law. In Feii-
ruary 1SH7 a Mr. Pnreell was ,\v.
dared to be elected a member of
the House of Commons of llie Do.
minion as the representatixe of
Glengarry, Ontario.

On the'2r)th April lSH7a piliiion
was lodged against his return iniiiii
diately after the session of Parlia-
ment connnenccd.

On Decendter 1, 1SH7, the cdurt
made an order enlarging the linic
of trial for two months. On 17 De-
cember 1HH7 an onler was inadr tix-
ing the place and time of trial. On
12and i;J Jamairy IHSH the trial w.is
held before Rose, .1., who, on ilic
lattiT date, held the election voiii.
and that Mr. PurecU had been guilty
of corrupt pnict ices. lie appeidcd
to the S. C. [present, Sir Willimn
Ritchie, C.J., Fonrnier, llenrv,
Tascherean, and Owyune, .1,1.].
On the 2nth Mardi IHHS the S. C.
reversed the decision of Rose, ,1.,
on the gi'ounds (1) That the time
Parliament was sitting should lie
computed as j)art of the six nemtlis
alloweil for the commencement of
the action under the Dominion
Controverted Elections Act, 1887.
sec. 32, R. S. C. c. 9. see. 32
[(iwynne, .J., dissenting] ; (2) Tlmi
after the expiry of the six months
the court hail no power to extiiid
the time for trii'.l, if the court below
had Ikcii awan-the time had expired,
and therefore the order appointing
the trial was iiltrri vires [Ritchie,
C.r., and Owynne, .J., dis.scnting];
antl (3) That these were competent
objections to make after the triiil
had taken place [Owynne, .J., dis-
senting].

It njUHnirs Mr. Pnreell had sat
for two months after the decision
was made known, and no motion of
the Commons was nunle to declare
the election void.

The |K'titioner Kennedy applied
to the .Judicial Cemnuttee for leave
to ap))eal.

Sir Barnes Peacock : " Suppose
we recommended Her Majesty to
reverse the judgment, how would
that decree be carried into execu-

-*. -....-v— *s*-M*r(rtt*»»Ift*»**«^**

B.N.A. ACT, N. 92 (1 1).— H. OP C. NOT ACTINO. 315

fion ? I' would go to (ho Houso
of Coiiiiiions and Ik- n|)ort»'d to llie
SiH'akcr, TIk' Spfukcr could not
net on his own nnthority, and cotdd
oulv IK'* hy onh'i" of tho llon^^c:
MippoM' tho House to say, 'Hit
Majesty has no preroi^Htivf to do
this, iiihI wc irfuse to cany it out.'
Tlu'ii tht'i'f would ))u an iniiucdinlc
conflict lii'twH-n the House ol' C'oni-
muiis of the Dominion ami Her
Majesty. It would not he a very
priiili'iit thiufi for us to advise Her
Majesty to reverse ii judf^ment un-
less we enn wee our way to luivin;;
it carrit'd into ext-eution when Her
Majesty orders it. Suppose the
House of Commons, on tlu; report
of the Supreme Court that hoth
imrties had been guilty of liribery,
ordered a new writ, but Her Ma-
jesty ordered that writ to 1k' re-
called, or upset the eleetion whieh
had taken place under it. It ap-
[K-ars to me there is no mode of
carrying out the decree; and we
would not advise Her Majesty to
reverse a dt'crei; unless we saw a
mode of carrying the decree into
execution."

The respondent was also heard.
Seen Can. Gaz. 294, 3;{H.

lu the Privy Council Lord Hob-
house (hdivered the following juilg-
tiient [there being also present Lord
MHciiaghten, Sir Banu s Peacock,
aiul Sir Richard Couch] : —

"This petition gives ris<' to a
question of consiclerabh! import-
ance. The decision complained of
has been niadciuider the provisions
of the Canadian Controverted Elec-
tions Acts ; and it will b** con-
venient to refer briefly to those
provisions of the Acts on which the
judgment of their Lordships is
mainly rested.

"The principal Act, 49 Vict,
c, 9, is contained in the Ile\ise<i
Statutes of Canada of the year
188G, and is amended in some
respects by a subsequent stjitute
imssed in 1887. The Act of 1886
consolidates and amends previous
Acts imssed foi- the purpose of
giving to courts of justice the

power of deciding <lisptited«'leetions
which was previously po.s.ses.stsd by
the elected bodies themselves, 'i'he
course of procedure is as follows : —
A petition is to be presented to the
IcH-al comt, which is to have the
same powers as if such petition
were an ordiiuiry cau.se within its
jurisilietion,,'"'cs. 2, 3, 5, .'{'), Very
short periods of time are prescribed
for giving notice of the petition,
for taking preliminary objections to
it, and for answering it if those ob-
jections are overnded, .sees. 10, 12,
13. Ev(!ry petition is to be triecl
by one of the judges of the court
without a jury, sec. .'{1 of tlu- Act
of 1HS7. The trial of cM-ry pe-
tition is to 1h- connueneed within
six months of its presentation, and
to be proceeded with from day to
day until it is over, sec. 32. 'i'he
eoint may enlarge the time for com-
mencement of trial, or the p«'riod
limited for taking any step or jtro-
ceeding, sees, 33, 64. The judge
may order a special case to be slated
for the decision of any question,
but it is ' as far as possible' to be
heard before that judge, see. 49.
An apjM-al from the judge's dt'cisiou
may l)e made to the Supreme Court
of Canada Avithin eight days. If
therci is no such appeal, the judge
is within four additional days to
certify his decison to the Sfieaker
of the House of Commons, who is
to take action thereupon ' at the ear-
liest practicable moment,' or 'with-
out delay.' If there is an appeal,
the Supreme Court is to decide, its
registrar is to certify the decision,
and the Speaker to take action upon
it, sees. 43,46,47, 50,51.

"The election in (piestion took
place on the 22n(l February 1887,
when Mr. Purcell was returned as
duly elected. The petition was pre-
sented on the 25th April following,
immediately after the st-ssion of
Parliament eommeneetl. On the
1st of Deet'ndMT 1887 the Court of
Common Pleas nuule an order en-
larging the time of trial for two
months. On the 13tli January
1888 the trial took place before Mr.

Kmnedt v.

PlUlELL.

;n6 B.N.A. ACT, >. 1)2 (1 4).— TIlfiBEKGE EXAMINED.

KE!t!«r.DY ('. Justiro H(i>c, wliodcolaivd tliat tlu"
ruinELi.. election oi' Mr. I'mrrll wiis void,

und tliat lie had liccii guilty of coi-
nipt pnieficis. JIc appealed to tlu'
Supreme ("oml, wiio, on the lilllli
Mareli IHHH, reversed tile de<'isioii
of Mr. Justice l{ose, and disiiiis.sed
tile petition.

'• It appear?) tiiut the (lecision of
the Supreme Court did not turn
on tlie nieritrt of tlie ease, lint
entii'ely on (|ueslioiis of procedure,
which Were tliree in numlier. First,
whether the time dinin;; wliicli
Parliament wast siltin-i' sliould Ik-
computed as part of the six montiis
allowed for the connnenceuient of
the trial, Secondly, whether after
the expiry of the six months the
court has power to extend the time
for tiial. Thirdly, whether the
apiM'llanI, not oNjectin;; to the
enlar;;;einent when the order was
made, was entitlcil to object after-
wards. On all or some of these
questions, two out of the live judfjes
who heard tlio appeal were in favour
of the petitioner, liiit the other
three .judfjes ilecided in favour of
Mr. Pureell on all of them.

" It is now urged by the petitioner
that inasmuch as the questions de-
cided are important ([uestions of
law uffecting the construction of
the election statutes, and there is
good ground for doubts as to the
soundness of- the decisions, Her
Majesty in Council should enter-
tain an appeal. On the other side
the importance of the (piestions is
not denied, nor is it denied that the
decisions on them are fairly open to
argument. Eut it is contended,
first, that the subject-matter is not
one with respect to which the pre-
rogative of the Crown exists; und,
secondly, that if the prerogative
does exist, it is not proper to
exercise it.

" To support the liist proposition,
the case of Tbeberge v. Landry
[Sup. C. Quebec, 29 May 187G;
in r. C. Nov. 7, 1876, 2 App.
Cas. 102 ; 46 L. J. P. C. 1 ; .35 L. T.
640] is relied on. That case arose
uuder the Quebec Elections Act of

lH7o, by which the jurisdiction to
try election petitions was given to
the Superior Court, whose decisioii>
were declared * not susceptible of
appeal.' The petitioner sought tn
appeal on the merits of the election.
The decision of thisCouimilteewus,
not that the prerogative of the
Crown was taken uway l)y the
general prohibition of appeal, but
that the whole scheme of handing'
over to coiuts of law disputes which
the legislative assemiily had pre-
viously (U'ciiled for itself, showed
no intention of creating tribunals
with the ordinary incident of an
a}>peal to the Crown.

" In the case of Valin v. Laii},'-
lois [in court below, 3 S. C. 11. 1 ;
in P. C. Dec. 13, 1879, 5 App.
Cas. 115; 49 L. J. P. C. 37; 11
L. T. 002 ; and ante, p. 18], the
petitioner asked for leave to appeal
Irom u decision of the Supreme
Court of Canada under the Contro-
verted Elections Act of 1874, which
is one of the statutes consolidated
by the Act now in (piestion. The
gronntl of appeal was that the Ael,
being a Dominion Act, was uUru
vires of the Dominion, in assuming
to give the courts in Quebec juris-
diction over elections in Quebec to
the Canadian IIou.se of Commons.
This Committee, behl that there was
no ground for any such contention,
and dismissed the petition. But it
was said that if they had doubted
the soundness of the decision below
they would have advised Her
Majesty to grant leave to apiMJul.
That opinion is now relied on as
limiting or contravening the etfect
of the decision in Tbeberge v.
Landry.

"Their Lordships do tiot think
that for the present purpose any
useful or substantial distinction can
be taken between the statute which
was the subject of decision in
Tbeberge v. Landry, that which
was the subject of decision in Valin
V. Langlois, and those which are
now iu question 0 In all three
cases there is the broad conside-
ration of the inconvenience of the

RN.A. ACT, R. 62 (H).-CTOWN TNTEPFTinma. 31 7

Oown intorfcriiipf in cloction mnt-
ti>rs, iinii tli<> iinlikfliliDod tliiit tliu
coloiiiiil lt'Ki>*liitiiro should liivv(>
iiitoiKli'il niiy SMcli result. In all
tluec tluTc is tlio ori'iitioii of n
•i|K'i'iiil tribiinitl for tlio trial of
tH'titions, III tlio spiiso tliiit the lili-
iratioii is not left to follow llic
coiirsi! of nil ordiiiiiry lawsuit, iuit
ix suli.ji'Ctoil to a special proeediirc
ftiid limitations of its own. And
ill nil llirep tlicro is the same '.;x-
pri'ssion of the intention to iniiko
llic colonial deciision final. Hut
such vni'ianco as there is hetwcon
the two cited cases is only to this
oxtcnt, that the Comniitteo in the
latter case must have thou<,'ht that
the question of the existenei^ of the
jtrerogative was .still susceptiiile of
argument, wlien the dispute went
to the very root of the validity of a
liiw imsscd by I'nilininent to take
ctrcct in a province. Their opinion
on nil ex parte hearing, mid on the
sole question whether or no there
should be any further nrgninent on
the matter at all, cannot be put
jiifjlicr than that.

" Their Lordships do not find
it iiece.ssary to give any decision
on the abstract question of the
existence of the prerogative in this
case, becnu.se they arc satisfied that
if it exists it ought not to be
exerted in the ease before them.

" It is true that the questions are
very debntenble, and that they
affect the admiiiistrntion of the
whole law on this subject. But
the range of cases affected by them
must 1)6 very narrow. It is not
suggested that in the present Par-
liament there is a single case
except the one under appeal. There
enii be no other case till fresh
elections take place ; and if the
decisions now given have really
misinterpreted the mind of the
legislature, and are cnleidated to
establish ruh-s of procedure less
convenient than those intended, the
legislature can nt once set the
matter right. This peculiarity
of the subjeot matter largely
diminishes the foro« of the con-

sideration, usually a ntrong one, Kfnnf.dt r
that the decision eoinplained of ' cik m.i,.
ad'ects general questions of law.

"The next observation is that
the statutes show throughout a
desire to have these matters deciilcd
•piickly. There are tli(> most
obvious reasons for such a desire.
The legal duiiitioii of a Parliament
is, as their Lordships understand,
live ycfirs, and its usual duration
four years. It is most iniportnnt
thnt no long time should elapse
before the coiistiliition of the body
is known. And yet if the t'rowii is
to enlertnin njipeals in such cases,
the necessary delays attending such
appeals would gn-atly extend the
time of uncertiiinty which the legis-
lature has striven to limit.

"Again, the intention to confine
the decision locally within the
colony itself is just as clear as the
intention to get it passed speedily,
because it is expressed that the
decision of the Supreme Court shall
be final. And it seems to their
Lordsdi[)s that there are strong
rea.soiis why such matters should bo
decided within the colony, and why
the prerogative of the Crown should
not, even if it legally can, be ex-
tended to matters ()\er which it had
no power, and with whi<'h it had no
concern, until the legislative bodies
chose to hand over to judicial
functionaries that which was for-
merly settled by themselves. Before
advising such an exertion of the
prerogative, their Lordships would
i'c(]uire to find indications of an
iiitcnlion that tli ' new jiroceedings
should so follow the cour.se of
ordinary law as to attract the pre-
rogative. But the indications they
do find arc of the contrary ten-
dency.

" The result is that their Lord-
ships cannot advise llcr Majesty to
grant the leave asked, anil that the
petition must be dismissed with
costs."

In Ryan v. Devlin, 5 Nov. Rvas v.
1S75, Q. B. Qm'l)ec, 20 L. C. J. 77, ^^^''"^■
before Johnson ,Torrftneo, and Beau-

[•

318 B.N. A. ACT, s. 02 (1 4).— PROVINCES AND COURTS.

RvAN V.

Devlin.

(Irv, JJ. [tho iiittor di.ssentinp],
Johnson, J., dealing witli thi- Do-
minion Controv«'rt«Ml Kloctions Aot
of 1873-74, said: Parliuint'nt hy tlio
carliiT Act " did fontcinplate tlio
creation of an additional v iirt
called an 'election court,' lait that
has not lioon done in the sfatnfc of
1S74." And Meredith, C.J., deal-
ing with the same Dominion Acts
in Valin v. Langlois, IHiO, 5 Q. L.
1{. p. 1."?, says: There cannot lie
any " doulit that the framers of the
Act of 1873 thou;,'ht the creation
of u new conrt, lor the trial of
election [M-litions, a wise precau-
tion; and prol>,ilily it was so, as
tentling to prevent controversy ;
hut it (Uh's not I'o'.low that they
deemed that precaution alt.so-
Intely necessary ; and the Act of
1874 shows that Parliament, upon
further consideration, came to the
conclusion that .some of the duties
connected with the trial of election
petitions, coidd he assi^rned to the
ordinary ci>il tribunals." The pas-
sage of .fohnson, J., in Hyan v.
Devlin, 20 L. C. J. p. 82, is: "It
is not an Act [the Act of 1H74] for
the 'constitution, umint«>Mance, and
organization of a supreme court,'
m-iliu'r is it an Act i'.)r the estab-
lishment of 'any additional coiict,'
See. 101 of the H. N. A. Act may,
theivl'ore, lie treat 'd as inapplic-
al>lp. [Heads that .section.] These
|!owers have not been exercised by
this statute in a <lirect manner, as
was done by the statutes of 1873,
which did ci-eate an additional
court, as woman was formed out
of man, by taking some of the ma-
teri.ls of the Superior Court and
inaking them into what that Act
calied an 'Flection Court.' That
has not Ikcu done in the statute of
1874, a?id the argument is, that
uot hr.ving made an additional
court CO nomine, tho legislature
could not impose new duties on a
provincial ccurt already existing,
withtut violaii. g the provisions of
sec. 92, which assign to the oro-
vineiai legislature 'the admiiLs-
Iration of ju.r!tice, &c.' [Ucadd

.«ub-80c. 14, sec. 92.] It will be ol>
scM'ved that the local legislature oin
only create provincial courts." He
goes on to .say : " If the Dominion
Parliament lias disregarded the
provisions of sec. 101, and ajjpar-
ently, at lirst sight, overridden the
rights reserve*' to the provincial
I>arliament.s, t lero mu.st lie .some
presumable rea.son for what they
have done. Courts of justice are
not to look at tatutes with a view
to defeat them, lail with a view to
give them effect. We must not
presume that the Canadian Parlia-
ment has proceede<l without intelli-
gence or discrimination ; wt! nuist
.see if there is not souk; other power
given in lla; Confederation Act
which they meant to exercise l)e-
sides that of creating 'additional
courts.' Now, there i.s clearly sucli
a power given by sec. 91 — a power
which I hey could e.vercise without
any restriction by those enumeraleil
as iM'longing even to themselves,
much less by those iM-longing :o
the different provinces, a power
which is expressly conferred by
that section: 'Notwithstanding
anything contained in thi.v Act.'
[Heails beginning of see. 91 ; and
,«<r uote.s thereto, p. 43.] Then
follow, the enuiui'ration of cliusse-
of suDJects iH'longing to (he fed-
eral power to deal with. There
are, therefore, two kinds of things
which the Confedt-ration Act of
1807 says are within the exclusive
rights of the Dominion Legislature.
Some of them ar»( expres.seil in the
list or enumentiion of subjects that
follows; others are not expressed,
but are reserved in the body of the
section, and are said to relate la
'all luatters not assigne<l to pro-
vincial .. gislation,' and, with re-
sjM'ct .) tho.se matters, the Dominion
Legislature has the e.velusive power
to make laws for the peace, order,
and good government of Cana<la,
ami tliese jKjwers ho reserved ex-
<'l;isiveiy to the Dominion are much
more general and extensive than
those which were su.sceptible of
enuQieratiou. lu other words, as

B.N.A. ACT, s. 92 (14).— RESIDUARY IN DOM. 310

it wiis obvioiiHly imposHiMo for any
f'irfsi"lit to provide iM'tbrchiuul, iiml
in (lotiiil, for every ai.se in wliieh
Domiiiio'i lej^islatioii mifjlit lie rc-
(|iiiml, tlie Imperiiil Aet seems, in
iffwt, to liave said, 'Notwitli.st4in<l-
injr aiiMiiin<; in tliis Aef, notwith-
>tiinilin;,' that we have enutnerated
till' most salient snhjeets on whieh
ihc Doiaiiiion Le<;ishiture may make
laws, it mist 1)0 clearly nnderstood
that tliire is nothin<; at all to pre-
Miit ilii'iu from lej;;:4aling for the
uiuilc Dominion in matters not to
III' found in the list of those {jiven
1(1 ihcni, and not a.ssij^iied to the
|ir(iviiices.' "

Sec itlsn Owens r. ('nshin;^,
.') N()\. 1875, 20 L. C. J. HO, wlieie
Muikay and Torrane", J J. [Reau.
(Irv, J. (dissent in<;],allirmin^. John-
>oii, J., held there was jnrisdietion
in tiif Dominion topH.s.s the 37 Viet.
(• 10.

In the Ni.voAitv Election Cask.
11 Dec. 1H7H, lliJ U. C. C. P. 2GI.
|i, 2W), in whieh Gait and Chvyniie,
.[.[. (Wilson, J., dissent ill},'), held
till' Dominion Controverteil Elec-
tions Act oi' 1874 valid, IFod^^iiiS,
(JIV, in ar;;iiiii}; ajiainsl the validity
of the Act, cited I'; American
cases };ivcn liehjw, some of which are
|)ii)Iiiiliiy those referred to liy Mere-
ili;li, C.fl., ill Lan;;lois r. Valin, 5
Q.L H.p. 11: "The lOlsi section
of the H. N. A. Ael empowers li.e
I'cdciid I'arliiimcnt to cstaiilish
I'oiirts. A similar authority is
vpstiil in the Coiif^rcss of tli
rnitcil States : ' The judicial powi
ol the United .Stales shall lie \c-t-
cil ill o'le -upreme court, and in
*U(li inferior courts as Coiij^rcss
.xlmll I'rom time to tiiiie estahlish '
(art. .1, sec. 1). The value of
.Vmeriean ('ecisions as to the
li'<;i-'lalive antlu^rity of a dual
■K)V('rei;j;uty like ours was ap-
proved in Loprohon r. Corpora-
tion of Ot*.«wn, 2 O. A. R. rv]r»,
532. In the United States, wldeh
|Mi«ess«'s a system of dual jjovcrn-
iiii'til like ours, the Federal and
SiBte court.s, since If 12, liavo

held that Congress cnnnot vest N'rvo.iRA Ei.m-
jiirisdict ion in a State court. 'Con- tio.s Casb.
press cannot vest any portion of
tlu' judicial power except in coe.rts
ordaiiH'd and estahlished liy itself :
Martin r. Hunter, IHIC, 11 S. C.
U. S. (1 Wheat.) ;iOl ; Houston r.
Mooiv, 1820, 18 S. C. U. S. (5
Wheat.) p. 27; Ely r. Peck, 1828,
7 Conn, at p. 242; United States
c. Hiulson, 1812, II S. C. U. S.
(7 Craiich) 32; The Wave, Rhitcli
and Howl., 23") ; Ignited States v.
Hudson, ISli), 17 dohns., p. 1.
A Federal court cannot enj(»iii pro-
ceedings in a State couit : Diggs c.
Wolcott,8S.C.U.S.(4Craneh)17J».
In that casetfwvnne, J., said [20
U. C. C. r. p. 27!)] : " Much was
said about the constitution, nmin-
tenanee, and organ i/.at ion of our
courts being exclusively under tne
control of the proxiiici.d iegisla-
tiires, including the ^jiocedure in
civil mat ters in tho.se courts. These
lattc'r words, in the 1 Ith paragia|)li
of sec. J)2, iihiiiily apply to the pro-
cedure in tho.se ci\il matters over
which the iirecediog paragraph, the
sub-sec. 13, ga\e to the pro\ incial
legislature exclusive control, name-
ly, 'property and ci\il I'ights in
the pro\ inces," .uid do not iifTeet
procedure in the case before us,
which, being a nialter over which
the provinciid legislature has no
jiirisdiciion, it could not assume to
prescribe a procedure relating tlier"-
to ; but the perfect llccii ley of the
proposition that the constitution
and oiganiz'X '.'■ if our courts are
exclusively ( Pflc, the jurisdictioi!
i)f the pro\ incial legislatures, al-
though the determination of the
point before us does not retpiire its
discussion, may, as it a|ipears to
me, well be ipicstionrd. 'i'lie con-
stitution of the old courts in exis-
leiiee at the time of confcd riilion
caniiiii be abolished r altered
without the assent of t'.c Dominion
Ooveriimeiit to the Act passed for
the purpose by the provinci;il legis-
lature. No new courts (.in be con-
stituted, or when constituted be
alx)li»he(l or tdtered, without the

>Mir

n I

(':! I

320 B.K.A. ACT, ■>. 92 (1 1).— PROVS. CBEATINft COURTS,

':• If

NiAoARA Er.m- like nssont. No doubt tho right to
Tio.N Cask. coiistitufo and orn;aiii7,o courts of

jus;i('(' is, liy lu> B. N. A. Act,
voHl.'d in til"' povincial Icgisliiturc
except in so iir as participation
m such or^ini/atioii is hy llicsiiuc
Act reserved lo the Doniiiiion aii-
thoi'ities. Now, coiu'ts i'or tlie ad-
miiii^lialioii of justice would Ik
very iuijM'rfectiy ()r}j;aui/.cil witiiout
judijes. Tiiey form a vory iui-
portant constituent iu tiio orp;ani/.a-
tiou of courts, and, until their ap-
pointment, it cannot he said witii
accm'ucy that the courts are com-
pletcdy constituted and organizi'd.
As the a|)pointmcnt then of tiic
judges I'ots in the Dominion
(lovernmcnl, and tiie power to re-
move tiiein is \('sled in llie Domi-
nion I'arlianicnt, and as no altera-
tion in tlu'ir constitution vr.n he
cITectcd without the assent of the
Dominion (lovernment to tlie Act
of the provincial IcfjisiatiU'e passed
for tile piu'pose, it would l)e mori-
consistent witli the i'ranu^ of our
constitution to sjieak of all newly-
creale(l co irts as Ix'inj; constituted
ni\d or>rani/.e<l by the united action
of the Dominion and provincial
nutlioritics; and the jud<;es of such
courts, as well as the ,iud;;es of tho
old courts whose existence until
abolished or allerc<l has continued
ns if the union had not been made,
may with perf.'.-t propriety lie
dccin<Ml to be o'iicors of the Domi-
nion (iovcrnnu'nt,and may well be
deemcil suiiject to Iwuc duties im-
jHiscd upon them liy the Dominion
Parliament of a Judicial ciiaracter
in respect of matters ov.r which
that Parliament has control, of like
nature with those matters tvhich by
the nature and constitution of the
courts of which th<'y are jud^ics,
arc within the s( ope of their fjene-
ral jurisdiction."

In ATTOHNKY-OENERALOPQrE-

BEC r. RiCEi), H S. C. R 108 ; in
P. C. Nov. 1!«, IHSMO A pp. Cas.
141 ; 54 L. J. P. ('. 12; W L. T.
303, the question wa.s ns to the
va'.iditv of an Act. 13 and 44 Viet

ATT.-(iF.X.
QfKDfcC I'.

Hekd.

c. 9,, of tho Quebec Legislat\ire
imposing n tax of 10 cents on c\ ry
i'xhibit produced in court. After the
nuiin (piestion whether the ta.\ wa.s
direct or indirect inider sub-sec. 2
sec. 92, came the cpu.'ifion whether
it was valid umler this sub-sec. U,
Ear! Selborne, LC, dealing with
the latter point, said [10 App. ("as.
p. Ill]: "That jjoint, which is tlie
main point, and was felt to l)c so
in Mr. Da\ey in his very able and
clear argument, being disposed of,
the next (pu'stiiMi, upon tlu! terms
of the same seel ion of the same Act,
is that which ai'ises under sub-see.
II. One of tile things which .n -to
be within the powers of the phi-
vineial legislatures — within 'licii'
exclusive powers — is the adminis-
tration of justice in the province,
incluilingtlie constitution, mainten-
ance, and organization of provineiiil
coiU'ls, and including the proceiliuc
in civil matters in the<'ourts. Now
it is not necessary for their Lord-
ships to determine whetl;er, if n
special fund had been created by ii
j)rovineial Act for the maintaiii"nee
of the administration ot justice in
the pro\ iiu'ial i-onrts, i-ai.scd for timt
jjurpose, appropriated to that pin-
jiosc, and not available as a general
reveini«> for gcnt>ral provincial par-
poses, in that cas(> the lin:itation
to direct taxation woidd still have
been ap[)lieahle. That may lie an
important (piestion which will lie
consi'l;^rc(l in any case in which it
may arise ; but it does not arl.se in
this ease. This Act does lait relate
to the aihiiii:i'.ii"ition of justice in
the pi'ovin-e : it (h)es not iirovide
in any way, directly or indirectly,
for the maintenance of the pro\ incial
court.^ ; it diK's not pur|)ort to he
made under that power, or for the
|ierl'ormance of ijiat «luty. Tiie
subject of taxation, iiuh'cd, i.-a mat-
ter of procedure in the provimiai
courts, lint that is nil. The fund
to Ik' raised by that taxation is car-
I led lo the purposes mentioni'd in
the 2iid ,sub-,s«'c,, sec. 92. it is
made part of the general consoli-
ilated revenue of the province It

ac:i^[iftiiE«fc4A»_-w^l

B.N.A. ACT, s. OL (14).— STAHTINO PROPOSITION. 321

tliprofon' is pivciscly within tlio
words 'taxation in order to (lie
iMJsiii" lit' II rcvcnui' for provincial
niiriKWs.' It it slionid {^really i \-
cri'tl till- cost of till' aiiniinistrai . 11
(if jii>itin', still it is to he I'ai.M'il
ami apiilii'il t" {ji'iH-nil pnivini'ial
|iiii'|Mis('s, anil it is not niorr
■.[K'ciHllv appliniliU- for the ail-
riiinistnitiini "f jiistifi' tliaii any
iitiii'i' part of till' m'lioral provinciiil
vcvciiui'." [Tilt' aliov*' is tlie st-conil
imrt ; tor first part of this jiid<>;in('nt
«(««/(•, p. lli>; and for third [Mirt,
s. (15, p. 32.]

I'ntti'r.son, J., s«id, in SciiooL-
ii.iKi) V. CI..VKKK, June 12, IH'.H),
17 S. ('. U. p. 277 : " The stiirtiiifi;
|)i()positioii, to the ovt'rl(Hikin<; of
wliicli I iittriliiitr much, if not all,
'111' ililliriilty that to some judjrrs
si'tMiu'd to attend the workin<;
lit ;lii' Aft, is that by the H. N. A.
A'c't till' constitution and orfjani-
zjitioii ')f provincial coiiits, liotli
lit' civii tiiiil criminal jnriMliction,
ami iiu'liiiliiif; procedure in civil
iimlti'i's in those coiirt.s, is a func-
tion of the provincial le<jislaliire.
'riii'11' is no (t piioii presui jition
lliiit till' I'arliaiui'iit of Caiiaila, in
passiiii; an Act upon ii siiliji-ct
witiiin its e:;clusr(' jnrisdictioii, iii-
ii'iiils to I'licroacli upon the exclu-
sive jurisdiction of the province.
II' nil Art is aiii1iii;uoiis in this par-
lii'iiiiir. I take it that the construc-
l.iiii til III' preferred is that which
ainiiils with tlu' di'cianition of our
loiistitiitiimal charter. Anioiifithc
M.lbji'i'ts e.\chisi\ely assif^ned liy
s'l'. 91 Id the Parliament of I'liiiada
"IT inti'ivst. hills of cxchaiiije and
liriiiiiisHii\ notes, and liankrnptcy
uiii' iiisolveney. \Vc .should Im
"iirpiisd to find that Parliiiiiicnt,
iiwiiiiiini; to enact that an acti'in
oil iiliillof exclianjie should ahva\s
!»■ tiled liy It judge without a j.ii'\,
or tiled M» har hefore the full court,
III' tliiit interest on a oromissdry
Hole iiiiiM iiKvays he computed liv
lli'iml;;!' ]iersoiiallv, and not li\ ii
nwisler or ivIVree. ' We should" lie
tiiuiillv iiii|)rcpared to tind it

enacted that when a provineial Hciiooldrbd t-
I'oiiit was adininister':ig an insol- "'•■*"''^-
vency or hankruptcy Act, the func-
tions and powers of its oflicers were
to 1m' tlifferciit from tho.st! cxi'i'ci.sed
in an adiniiiistriition action or other
action within its ordinai'y jurisdic-
tion. Such an enactment would
amount to the constitution and
organi/.iitioti of the court Ity the
Dominion Parliament, and not hy
the liM'iil legislature. Yet this is
wliat I underst^ind to be contended
is the intention and effcH't of the
Winding-Up Act [R. S. (,\ c. 120].
In my ojiinion, the Act was never
so intended, but, on the contrary,
the effort of the Parliament ha.s
Ix'eii to h'tive the court to jH'rfonn
its functions by means of its
ordinary machinery and by its
ordinary |)roccdure."

Jn that ca.se it wa.s onh-red
that the I'nion B'ire Insurance
should he wound up, and ihat n
ceilaiii person should be [N'rina-
nent liipiidator on his furnishing
security to the .satisfaction of the
master in ordinary of the Su|irenie
Court of Ontario. The appellant
iilijecteil to thisorde'.'on the ground
that the Doniinio I Winding-l'p
Act was not applicable to a com-
pany incorporated by the Ontai'io
liCgislatine, and, iilteriiati\i'ly, that
the order was defeciive in leaving
the security of the liipiiikitor to the
mastei,iis the court could not dele-
gate the authority conferred on it
by the Act Hut it was held by
Sir W. Ritcli'c, ('..!., Foiirnier,
Tiischcreiu, (! Wynne, and Paller-
soii, JJ., hat the Dominion AVind-
ing-l'p A t. W. S. ('. c. 12!)., was
ii|)pli<'ii1ilc lo a pri'i incially incur
poriili il compaiiv. .Vcrf^/.voC'rombie
V. .Iiu'ksoii. ls7i.:}t)r.C.ti.H.57'>

So lon^f ,'i> there is m, legislation
of the Domiiiioii rarlinmeiit in
existence, the pro\ iiicial legislatures
nay legislate on subjects which
might I'ome under sec. !)l. Att,-
(icii. of Ontario r. Att.-den. '>)r
till !)oiiiiiii(>n oi Canada, ii C. A.
Out . !» VIiiv 1H!):<. '20 O. A. U.
IH9: in P. C, reversing the de-

•l

*!!!

: Ii

«:■

Poi'B i:

GlIIKPITII.

322 B.N.A. ACT, ». 92 (14) —PENAL LAWS OF DOM.

cision Iwlow, Fob. 24, [1894] A. ('.
189; (W L.J. P. t\ 5!); 70 L. T.
538. [See mh-tn-v. 13, see. 92.]

In Poi'K r. (}itii-.'i ,11, II
Mairh 1872, l(i L. C. J. 171,
Ititiiisiiy, J. A., .said — »lf«liii<; with
11 coiivictitiri uiidtT .sec. 4 of llu'
QhcIh'c LicciLsc Ait, 31 Vifl. »•. 2.,
uiid the const it lit ioiiiilitv of the
Act in that it prcsciilics ciiniinal
procedure: — " Wiiatcvcr may 1h'
the delinition of a crime, I wonld
remind thos<> who h>an too nuK'h
npon dctinitions, of tiioir dan<;cr;
it will not he denied that, in one
wnHC of the word, the Act of which
appellant i.s accust'd is a crime; hut
it is equally plain that it is not a
crime in the soimc of siih-sec. 27,
sec. 91, of the K N. A. Act. Now
if the si^inilicatiou attached to the
word ' criminal ' is restricted, when
referring; to law in thisstdi-section,
why shouhl it he used in a different
sense when ai;»li"d to proiedine I*
It cannot he ])resumed that in one
short iNira^rap! ,j>articnlarly a para-
graph '»f an ennui'-nU'onof powers,
the U-^'datuieshonid Have intended
to api)l, two different meaninfjs to
the same word, especially when liy
doing so they woid<l lie transferring
the legislation with regaid to a
jiurely local naitti-r to I'arliament.
The rule is all the other way. Suli-
sec. It) yf s<'c. !)2 icscrv.s to the
local legislature generally, the right
to make laws affecting all matters
of a mei'cly local or private natur<'
in the [irovince. What cnu lie
Skwki.l c. more local than (he procedure to

Hhiti.sh Co- give force to a l(M'al law? If this
LuintiA TowiNo vi,.,y 1,^, j.()in.(.t^ it is not n (pu'stion
"' of dashing, and the provision of

sec. 91, giving superior authority
to the enunieiatioii of the powers
of Parliament, doe.s not apjily. The
powers are perfectly distinct. I'ar-
lianant nuikes the laws of proce-
dure allecting the criminal law which
it enacts; each of the legislatures
make the law.s of procedure atFect-
ing the penal laws which they en-
act respectively. I am, tlierefore,
of opinion that the aj)|)ual docs not

lie under the Dominion Act, 32 4
33 Vict. c. 31. s. (55."

Another judge '.VIS heen cited dn
this point, nana-ly, Sauhorn, .1.,
who said: " Where the power is
given hy the M. N. A. Act to
the I'arliament of the Doiniiiidii
to jirovide procedure in crimi-
nal matters, I imderstand rr-
fel'cuce to lie ha<l to ihe gciicriil
criminal law, comprised in iIh'
Criminal Statutes of the Doniiiiiiiii
and in the Common Law. This
view is coutirmed liy the Criiniiml
Procedure Act, which has no ntVr-
ence whatever to local penal laws,
hut to laws in for«-e throughout
the Dominion." ..." The R
N. A. Act gives the legislalinvs
of the several provinces power over
shop, s)d(Min, and tavern liceiisis,
and to impose tine, penalty, or iiii-
]iri.soinnent for enforcing any law
of the prov'nc*' naidi' in relation to
any matter coming within any of
the chis.se.s of suhjects enumcnilid
amongst their powiTs. Where
powci" is given hy statute to iiii-
pi.-se a penaltv, it implies power to
enforce it," ". . -'The H. .N. .\.
Act must lie inulerstood to liiive
given this power to the sevciiil
provine«'s. Any otlur view woiilil
gi\e the legislature of a province
less power than a nnniicipaiitv
which such legislature can erciite.
It woidd he contraiy to liie
manifest intention of the Im-
perial I'arliament iii allocating tiie
respective powers which «'aeh legis-
lature should possess."

In Skwki.t, r. Dkitisii Comm-
niv T()Wi.N«i Co. — "The Thraslier
ca.se"— 18 June 1883, I'assei.s'
Digest, 18!)3, p. 481), the vari-
ous (piestions were put under
sec. M of S. &, K Conrt Act to
the Supreme Court hy Onlcr in
Council to determine the validilv
of the Act 12 Vict. <•. 12., hy liii'
13ritish Cohimhia Legislature, anil
Ihe answers to the (piestions were. ill
in the atHrinativ(>, to the effect timt
the legislature had po\ter to legis-

late in regard to tlu>

proce

hin

^^9»^.>

B\.A. APT, s. 02 (11).— PT^OVINCrAL JUmOATUT^K. 323

ill tliocoiirtH of tliiit province, nini
roiiM iimkf nilis to fjovcrn flif
nriKcdiiiv in nil nmttcrs wliidi
(•iiiiir williiii tilt' li"risiiitivc ,jnri«i-
ilirlimi of tlic|>i'<)Vin<-inl l('<;isiiitMr<',
mill rollM (Iclr^'lltc this powtT to
tlic Liciiti'imrit-(Jov<'rnor in ('(»uii-
(11; mill timt tlic Jndioiiil Distrirf
Art, 1H7!>, 1- Vict. c. 12., imliratin^r
thcsi'i'iidiisof llic provincf wlicn-in
• 111' juil},'i's should ri'sidi', wii.s valid,
tiiiil did iipply to tlic judjjcs iip-
IKiintt'il hi'fon' 1M75). See The
Alt.-(i('ii. of Ciinada v. Flint, 12
S.C. N'.S. (.'} Huss. &. field.), 4W;
Jim. Hi, 1H8 1, 1() S. ('. H. 707.

Kko. v. Was.i.v, Mareh 4, 1H90,
17 (). A. !{. 221 [liefore Ha^irly,
('..I., Hiii'lon, (Wer, and Maelen-
imii, .IJ.A.], was an appeal under
."il Viet. (Ont.) e. ."{2., which
cimcli'd that persons supplyin^j
skiiiiiiii'il milk, &.i'., to a butter
iimiiiifiii'tMrcr willudit notilyinj; the
siiiic wiiiild 1m' lialdc on convi<'-
limi III III' lined or imprisoned v. ith
limil liilionr. 'l was arf^iied foi'
llirCiowii lliiil if Ihi'olijection heli!
;:ipiiil lliiil I he Act was iiUrii tires
III r.'iii>i- it li'i'iiclii'il on the ei'iniiiial
i;i\v, iiiilliiii;; whalt'MT eouhi he
iliiiii' lowiirds the e.xeention of the
Irtw iiiili'<-i till' Dominion choose lo
proviili' inoreilure ; and thus the iii-
riTililili'ii'Mili Would lie 'cached tlml
ii siiviTi'ijjii Icfjislative power mijjhl
III' lift iilis'.ilulely impotent, heiii;^
ilrnriidf,!! upon anotlier legislative
[iiiwir ior iiic niaehinery willionf
which iis law iiiust remain ino[>ei'a-
livi'. A conclusion so nionstnuH
slumlil !,■• rejected. [Kxtnicis from
till' jiiil'.'iiiciils are given fiut(,
|| 10(1.]

In Ut Cm MY CoiuTs ok iJiii-

TIMI foi.l MIllA, Dee. l.'J, 1H})2,

'^\ S. I'. |{. I |(i, it was held l.y
.'^Iroii-r, (iwyiuie, Pattersoii (and
THSclieicaii wilh some donlil),
•M., lliiit the Acts of Ihe Leiri.s-
liilnii' or Hiiiish Coliimhia, ('. S.
" ('■ c. 25. s. 11, autlio'i/iii};
"iiy coiuity coiut judfje to act as
>iu'li ill cci'iain ea.scs in a ili.stricl

liiriTigii Co-

I.I'MIIIA.

other thnn that for whieh he wn.s Hf County
ap|>ointed, and the .l.'l Viet. e. H. <'wnt8 op
s. J), which provides that iiiitil a
<'oniily court Judaic of Kootciiay is
appointed the juilj;c of the county
(•(MHt of Yale shall act as such, were
Infra rtrrs of the Hiitish ''oluniliia
lii'ifislalure. This was a sju'cial
ease referred to S. ('. uiiiler see. -1,
51 & ')') Viet. e. 25. Strong, .1.,
after saying these Acts were iiitru
lires, .said : " My reasons for this
opinion are that such legislation
was a valid exercise of the |K»wei
<'>.nferred upon the provinces l>v
.snl)-see. 1-1,' see. 02." . . " The
powers of the Fedc al llf>verniuent j^k,,. «. Wason,
respecting jirovineial eonrt.s are
limited to the appointment and
payment of the judges of those
c. 'rtsand to the regulation of tln-ir
procedm-e in criminal matters. 'J'he
jurisdiction of Parliament to legis-
late as regards the jurisdiction of
the pi'oviiicial courts is, I consider,
excluded liy snli-sce. 11, .«ec. 02,
ina.smuch as the constitution, main-
tenance, and organi/alion of pro-
vincial eonrts i)lainly includes the
power to deiiiie the jiirisdidion of
.such couils territorially as well as
in other resiteefs. This siH'ins to
me too plain lo reipiire demonstra-
tion, i'licn, if the jurisdiclinii ol'
the couils is to 'te delined liy the
proxiiicial legislatures, that must
nceessiuily also involve thi' jiiris-
tliclioii of the judges who constitute
such courts. If this were not so, it
would he neces.sary, whenever the
teiriloriiil jurisdiction of a countv
court was altered or eiilarged, thai
recourse should l>e had to federal
legishitioii under the general re-
served powers of Parliament, to
sand ion the change, or that the
judges should lie re-appoiiiled liy a
n»'W coiiiuiissioii. 1 think il clear
that I'arliiiiuenl in such a niatter
eonld not legislate without infring-
ing the exclusive powers of the
]i!'(i\ ineial legislature, and the
notion that a new commission
would he reipiisite in every car-e of
an cnlingeiuent of the territcni'.!!
in!'i.s«liction ot ain' of the courts le

X 2

I'!

lie CofNTv

CdUUTS OK

Dkitirii Citi

M'MIIIA.

324

B.N.A. ACT, s. 02 (15).— PUNISHMENT AND CRIME.

(|iifsti(>ii is t<K) preposterous to he
ciitei'lniiuMl. It iniist follow, tliere-
Tore, llmt the whole power of le;;is-
latiiij;, lis i(';;iinls the jiirisdietioii
of pro\ iiiciiil courts, is restricted
to the provincial Icfifisliitiires." Mis
liOi'dship added he did not i-c;rard
the Doiiiinioii statute, known as
the " Spe<-d_v Trials," H. S. t'. IHMi,
c. 175., auuMidcd by Aft 51 Viet,
e. 47., as a statute eonfei'rin<i jiu'is-
dietion, iiut rather as an exercise
of the power of Parliament torejju-
inte criminal procedure.

(Ji'Kr.x ('. nKNNKTT, Ontario,
Oct. lit), 1.SH2, 1 O. ]{. 115. There
Cameron, J., said : " From the
ahsence of express provision in the
11. .V. A. Act, and the vestinj; in
the local Icfjfislatun' of the proviru'c
the exclusive po\^'cr to make laws
in relation to the i.dniinistration of
justice iu the province, includinj;
the constitution, mainteii i .ce, and
orjrani/.alion of provincial courts,
lioth of <'ivil and criminal jmi'' •"-
tion, it was conceived the power to
|>ass su<-h a law [an Act of On-

tario };ivin{» power to the \Avn
tenant-Go\ernor to appoint polico
inaiiistrates] must r»'st exchisiveK
with the local le<;islature. , .
The ollice of police ma;;isti'aie is
the si/nple creation of an Act ii|'
the le<;islature, and in crcatiii;r tlu'
otiice it hn<l, when not in conflict
with the express or im])licd powers
of such lejiislature, or in excess
tlu'reof, the ri;;ht to detei'niine Imw
th<> appointment should he made.
The power of appointment mnler
the Act in question is <;iven to tlic
Lieutenant-dovernor in ('oimuII.
as the power was };iven under c. U)l.
of the C. S. C. to tlu' (Jovcrnor-
(loneral in C'oiuicil to np|Hmit
nuifjistrates or justices of the |K>ac('
under that Act. . . In nivopinien,
justices of the |M'ace are part of tiic
.system of tlu- administratinii of
justice in the province, and, tliere-
fore, undef suh-sec. 14, sec. !lli, the
rif^ht to Icfjislate as to their up-
pointment is expressly coiiferrcd
u])on the Icfri.^lature of tlu' province,
and, therefore, Mr. Younj; wiis
duly appoint<'d police niai;istriiti'
for the county of llaltc;."

; ''

lIoiK^K V. Tun

Ql KO.

(15,) The imposition of punislnncMit, hy fino, penalty,
tn* iin])ris()nni('nt, lor ('nl'orcini!; any hiw of
the ju'ovinct' nnulc in ivhition to any nitittcv
coniinij wiiltin atiy of tlu' classes of snbjects
cnuinorated in tliis section.'

' A local le<;islature can enforce
laws h> ruie, penalty, or iniprison-
uieiit, witliont dci'larin;; any lircach
of thiJx' laws a crime. Minister
of .Just ice. 2 .Ian. lH7;i. Pro\. Iic<;.
1S77. p. 715.

In 11oi«;k r. Tin. (^ii-:i:n, in
("t. App.. Out., ."{O.lunc 1SS1», 7 ().
A. 1{. 2I(;; in P.C. !).<■. 15. IMHIJ,
!>App.('as. 117; .i.'J L. .1 P.C. 1;
.")(» L. Y. 'M)\ [suh-sec », s^e. 1)2],
the .ludieial Cunimittee uplielil the
\;di(lil\ of the liicpior liicense Act,
U. .S (). 1H77. c. IHI.. Iiy which
the Ontario lie);islature appoin'cd

license eommissioia'rs to act in ei.'li
nninicipality. mii>1 dcle<rated to tlieiii
to pass resolutions, or li\e-lHWs, or
rules, to d'lii'c the conditions luiil
<|iialilications reipiisite for ohtaiii-
in<; tavern or shop licenses for sile
liy retail ol spii'ituous li(|m>i«
within tile iimnieipalilN ; for limit-
Jno; tile numher t licenses; for
decliirin<r that a limited niimlK'r <it'
tavern licenses may he excini't from
havin;r nil the aceomniixlation rc-
ipiired In law; aihl 'ti impose
penalties hy way of line, and. mi
iion-paMneiit, imprisonment with
hard lahoiir, as a pniii^lniieiii lor

m^:^^'

B.N.A. ACT, s. 02 (15).— KXPOUXDINcJ A ('C)NSTITX. 325

infraction of tlicir rcsoliif ions. 'I'lu-
,liiili<iiil Cominittoc lii-ld tlip Act
dealt willi "iimttcrs of a iiurcly
liK'al iialiiit' in tlic province, iiml to
Ih' siinilai' to, tlioii<;li not idrnticiil
ill all r('>|)<'(ts with, tlic jiowcrs then
li('i(iii;.'iM;; to innnicipiil institutions
iiiKJiT tlic previously existing; liiws
passcii li.v tlic local parliiiniciit,"
iinil thai it iliil not interfere with
the Caiimla Tcm|)erance Act, 1S7H,
the valitlitv of which was atnniied
in KiisscllV. Tile Queen, S. C. N . H.,
ISSl; ill I'. ('. .Mine '_>.'{, lH,s2, 7
App.Cas. 82i); 51 L.J. !».(' 77;
Iti I. T. S8!) [suh-^e(•. S), sec. '.)'>].
The Judicial Coniniittee said [!)
App. <"as. p. I'M)] the principle
wliicli iliat case [HusseH's] and tlie
ease of the Citi/eiis' Insurance t'o.
r. I'arsdiis, in courts helow, 4.'} V . i\
li R2(il; 4 (). A. K. 90; 4 S.
('. H. 21"); in I'. ('. Nov. L>(;, IHHI,
7 App. Cas. 9(!; 51 L.J. P. ('. 11;
»oL. T. 721 [suh-sec. l.S,se<'. !)2],
"illustrate is, that subjects which
in one aspect and for one pur|)oso
lull within sec. !)2, may in another
iis|H'ct and for another purjiose
fall within see. ill." [Srr antt;
\'. 111.] Anil they Itcing eh'arly
(if opinion {ante, p. 112) "that
the rcsohititui.s wore merely in the
nature ot iniinicipal or police rcfjii-
lations ill relation to licens.d
l!(ai.>^'s. and inlerferin}; witii liberty
(if action to the extent only that
was necess'iry to prevent disorder
and the ahu.scs (>f licpior licenses."'
. . '* If, lis their Lorilships lia\<'
'Iccidcd, the sillijects of le<;islation
iiMie within tile ]iowcrs "•' the
prijvincial lefjislature, ''ic ; sub-sec.
lo of s«'e. *>2 is applicalile to the
cns' liefore us, and is not in eoitflict
with suIkscc. 27 of .sec. f)l. Uiidr-r
liu'Hcv-rvjrene'Vii terin.s, 'the inipo-
"ilidii of i.,i!i'' liment by iniprison-
laent I'or enforcin<; any law,' it
wnist.i their Lordshi])s th .1 there
i" iiiilKirteil an »u:hority to add to
'he conriiieiiH'iii or restraint in
jTixm timl which is fioiiendlv
incident to it— 'hard Inbcair'; in
I'lher words, that ' imprisonment, '
there uicHiis restraint by cuiilinc-

IiK(i.

i.rv.

I'UAW-

ment in n prison, with or without IIowk c Tub
its usual accomiianiineiit 'hard '^"•'^'■'<
hibour.' "

The Minister of Justice con-
sidered. H May lHHO,thal the Hritish
Coliimbiii Lcfjislature was within its
rights in passin<i an Act whi<4i
empowered the Lieutenaiit-(iov»'r-
nor to make rides of court for rejjii-
latiii<;the sittinjjof the court rather
than for the jud^jes to do it. [Sre
Kej;. v. Amer, 42 U. ('. Q. B, ;«)1.]
Prov. Lejr., 1HH(5, HO!).

In KK(i. c. FiiAwi.KV (.same ipies-
tion as in Jloiif^e *•. Uej^.), 7 O.
A. 11. p. 26H, Spra;;}i;e, J. A., said :
" There is much in the jud^tment of
Mar.shall, C.J., in Mcriilloeh r. S.
Maryland, S.C.r.S. (4 Wheat). 'iH).
which is ai>iKisite totiiiscase. The
first and I i.e one material quest ion as
bearin<; on this case, was, whether it
was in the jiowerof ('on<;resstoesta-
blisli a national bank, the Constitu-
tion, in the pow^ers eu'iiiurnted, not
{jiviiifj authority to do so. 'I'iie
learned Chief .Justice also, in the
words of Vattel, says : * In consider-
inj; this cpie.stion, then, we must
never forp-t that it is a constitu-
tion we are ex|)Oiindinp."' His
Lorilship then said there is much
more in tliat jud;;ineiit beariiif;
on sub-see. 1.'), sec. 92, and con-
liiiued : "The point, sluutly, is
iliat the provincial legislatures had,
as incident to their constitution, the
power of enforpiuf; the laws niade
iiy them in relation to any matter
comii!<i witliin any of the classes (d'
subjects assijjned to their jiiiisdic-
tion, and to make laws for that
purpose, and did not need the ex-
ju'css power {jivt'ii by sub-see. 15.
I think it is .sound in prinei[ile, and
that the ofliceof clause 15 istojrive
express sanction to it; and at the
same time to prescribe in jjenenil
and comprehensive terms the nature
<d' the piuiishii'eiit by which those
laws mijjht Im- enforced. Tin'
U'arned Chief Justice Marshall
puts thus pithily the powers of
the sovereignty as divided 1h'-
tweeu the {jovernment of tlio

( ^r

326 H.N.A. ACT, s. 92 (15).— HAPPINESS OF PllOVINCK.

!ii

Uljui

Rwi. 1'. Fbaw- Union and tJic f^overnnifnts of tin-
'''^*' Stat«'s : ' 'I'licv iirt' nit'li sovtMfij'n

witli rus]>('ct to the obji'cts coin-
niittcni}i<;f coiitiniicil : '* 'I'lio
powers iissi<i;nc(l by the Cont't'dcra-
* tion Act to tlic provincial Ic^isia-

turt' arc larjjcand varicis, and it is
not too nincli to say tiiat it is a
rcosonablt? contention that lc;iisla-
tnrcs cntrnstcd with such powers,
on tlie <lue execution of whicii the
liappinessand prosi)erity ol' tla^ pro-
\inces so lai';;ely depends, must alsd
be entrusted witii ample means tor
their execution. The learned ('hiel'
Justice had to meet this dilllculty,
that the Constitution of tiie I'liited
States docs not confer u|)on Con-
gress power, as the C()nfederatit)n
Act coid'ers upon ti\e provinces
power, to make laws in relation to
tlie enumerat»(l chisscs of sul»jects ;
but only such power as miy l>e
• nocessai'v and proper ' for carryiuj^
them into execution. After com-
nientin<i; on and interpretiu<; the
laUf^uaji^o used, the Chief Justice
proceeds : * So, with iH-spcct to the
whole penal code of the UnittMl
States, wlu'iu'o arises the power to
])unish in cases not prescribed by
the Constitution? All admit that
the Gov»Tnnient may legitimately
punish any violation of its hiws ;
and yet this is not among the
enumerated powers of Congress.
. . . 'I'hc g((od .sense of the pul)lie
has pronounced without hesitation
that the power of piniishmeiit
appertains to sovereiguty, and
may lie exercised whenever the
sovereign has a right to act as inci-
dental to its coustitutional powers.
It is a mwins for carrying into ex('-
cution all sovereign powers, and
naiy be used, althoiigh not indis-
pensably necessary. It is a right
incid<'ntal to the power, and con-
ducive to its benetieial exercise.' I
will conclude my citations from the
judgment of the learncfl Chief
Justice with thisappositeipiotatioii:
' Wc admit, us uU must admit, that

the powers oi tiie (lovernnienl arc
limited, and that its limits arc not
to Ih' transeended. Uu' we think
the .sound const ruction of the Coii-
slitution must allow to the iiiitidnal
IcgislatiU'c that discr<'liou, witli
respect to tlu? menus by which tlic
powers it confers are to be carrieil
into execution, which will ciinlilc
that body to iM-rform the high
duties assigned to it in the nuuiiicr
nu>st beiH'licial to the peoi)le. I.ct
the end l)e K'gitimatc ; let it lie
within the scope of the Consiiiu-
tion,and all na-ans which are ap|irii-
priate, which are plainly ad.ipleil to
that end, which are not prohiliitnl,
but consist with the letter ami
spirit of the Constitution, are (•on>ii-
tiUional.' I make no apology for
(|noliug so largely from the jadg-
nient of Chief Justice Marshall. It
eiiunciiites clearly aial forcilily con-
stitutional itoctrines which, fruui
the miture of the Constitutina ol
the United States, have been la'ces-
sarily presented to the consideration
of the judges of that counti'v more
than has becu the case in Kuglaml,
and which, since eonie<lerati(iii,have
an inijiortant In-aring npii'< the
powers of the Dominion aiul pro-
vincial legislatiM'es. I may lie
allowed to atld that it appears to
me these iinplitnl [towers, or powers
inei(h-nt to the prineijMd iH)Wcr ('(in-
ferred, have their root in til' rule
often enunciated, that where power
is conferred to (1(j an act or several
acts, the jiower conferred in terms
carries with it by implication all tiic
powers that are necessary to tlie
due and elleclual execution of the
principal power conferred. In my
judgment, howc\'er, it is not neces-
sary to resort to the doctrine of
implied power, for 1 think that
the language of snb-.sec. 15, giving
power to naikc laws for cid'orcing
provincial law by, inter tilia, ' ini-
prisonnienl,' found where it is in a
charter of government, and looking
at the law as it then stood, and to
the statutes and circumstances to
which I have advcrt(Ml, nuist he
interpreted ujn cout'crrin ' nowcr to

PUOVINCK.

]]S \. ACT, 8. 92 (15).— LIMITATION ON DOM. & PROV. 327

case III Eii<;lmi(l

ciitori't' |iroviiK'inl liiw.s by im|iii.>*oii-
iiiriil with liiinl liiliuiir."

Ill Uv.u. r. ]l»)i)(iK, 7 (). A.
]{ |). li7H, Hiiiloii, ,I.A., siiid :
••It is tnu' lliiit J'lirliaiiiciil — till-
I'liiicil lviii;i;(l<tui I'arliiiin.'iit —
<r,iv(> Ijdth Id tlic Doiniiiioii and
id till' iiroviiift's tlic coiistilii-
lioiis iiiKlcr wliu-li we live; liolli
liuiitcd ill I'.vtciit, but Itolli };iviii};
iv|ii'('S(>iitativ<' institutions, and
I'iviii);: I" lilt' li'f^isiaturfs clcclfd in
the iiiniiiu'i' tlicri'iii pdintt'd out,
|ilciiiiiv |)o\vcrs of lej^islatioii witliin
liirir icspcctivo .splicrcs m lari^c
ami as ainplc as tliosc of the
linix'i'ial I'ai'liaint'iit itself. [^rSir
liiiacs I'cacock in lIod;ic r. The
timrii, (iiitr. \>. 14'2.] The h'j^isla-
lui'c so electetl lias a deh'^jated
iiutlKirity it is true, but it is of the
siiiicciianieterastlmt of the Imperial
riiiliaiiii'iit, who are eoUectively the
iliKpitcs of the whole people. If
tiicscaie iHiwers whieli the lni[)enal
rmiiaiaent eould have <h'le<;ated,
ilu'ii liieV ean e(|U«lly be so dele-
;,'iitcil liy the lej^islutuie of our own
inovince ; if not, then it is un-
iiccfssiiiy to add that they eaniiot
Ik' so dealt with by a provincial
li;,'islature."

Ill Att.-Ukn. «)F Canada c.
.\tt.-()kx. Or Ontauio [ii (juestiou
iricd under 52 Vict. (H. S. O. e.
41)]. l,S!t2-;{,U0O. 1J.222; 19 O.
A. H. :il; 23 S. C, K. 45H, it was
liiid tiiMl the Act, 51 Viet. (Out.)
c. J., iiiirpoi'tiiifi; (see. 2) lo eon-
I'tr on the Lieiiteiiant-UoveriK)!'
ul' llic province of Ontario the
iii;lit of coniinuting and remitting
Hiiiciiccs for oll'eiiees afi;aiiist the
liiws of the province or offences
iivcr which tiie legislative authority
uf tlic province e.vtcnds, subject to
till' condition lliiit thclej^islaturc had
puwci' to n'vok(^ it, was not an ex-
ic'sof jiirisdit'tioii.

Strong', C.J., said: "The 15th
-iili-Mr. of sec. 92 of the B. N. A.
Ail,iiiid the deci.sion in llodjjc v.
flic iiiwvn [30 June 1882, 7
U.A. K. 240 J iu r. C. 15 Dec.

1H8;{, !) App. Cfts, 117; 53 L. J. Att.-Obn. of

P. C. 1 ; 50 L. T. 301 ; see ante, V''"*!',* "•

,.>.T 1 I .1 •! -i-x !• Att.-CIkn. OF

p. l.i.)J, precludes the possibility ol ().,t.akio.

any doubt as to the rifjlit of the
provincial legislatures to impose
piiiiishim^nt liy line ami imprisuii-
meiit as sanctions for laws which
they had power to enact. The c«s«
of the Hcceiver-Gciiond of Nt-w
Urunswick r. The Maiiiimo Bank
[see snli-scc. 13, s«'c. 92] definitive-
ly establishes that the provincial
Licuteiiant-Goveriior appointed by
the {Joveiiior-tJcneral under the
great seal of the Dominion, pur-
suant lo the i>rovisions of tlu!
B.X.A. Act, reiiresciits the Queen."
He continued: Had he been coiu-
pellctl to decide it, he wuidd have
iield *' the jiowcr of cumniuting
scfitcnccs" was nothing h'ss than
the power to pardon. "By the
law of the Constitntioii,or, iu other
words, by the common law of
England, the prerogative of mercy
is vested in the Crown not merely
as regards the territorial limits of
the United Kingdom, but through-
out the whole of Her Majesty's
dominions. The authority to
exercise the prerogative may be
delegated to Viceroys and colonial
Uovernors representing the Crown.
Such delegation, whatever may be
the conventional u.sage establi.'*he<I
on grounds of jiolitical expediency
— a matter which has nothing to do
with the legal question — cannot,
however, in any way exclude the
power and authority of the Crown
to exercise the prerogative directly
by imnU)iiiiig an otrence coinmitted
anywhere within the Qiu'cn's do-
minions. I take it to be the
invariable practice, in the case of
colonial Governors, to delegate to
them the authority to pardon iu
express terms, either by the com-
mission under the great seal, or in
»'u' instructions communicated to
them by the Crown. This being
.so, and this practice liavii g pre-
vailed, as far as I can discover,
universally, and for a long series of
years, I sliould have thought that it
at Iea8t implied that iu the opinion

I':

Arr.-OitN. OK

CVNAtiA I'.
AiT.-OE.I. IIF

Ontauiu.

328 B.N.A. ACT, s. 02 (lA).— I'OWKll TO I»A«1)0\.

of tin- law olliccix of till' Crown —
nil iiiitlioiity on siiclia point sccoikI
only to tliiit of II jiitliriiil (li'c'ision —
tliiit till- iit'iTopitiM- of iMinlnnin;;
olTciicc.'' WMM not inciiK'iital to ilw
uflici' of II i-oloniul (tovornor, nml
could only he cxinitnl liy siicli iiii
oH'nt r in tlic iiliscnci' of Iffiislntivc
aniliority under powers eonferreil
liy the Crown." 'I'lie next ipies
tioii is, " In what le<;islatiire does
tlie power of eoiiferiiiij; tliis pre
roj^ativeof pai'doiiiti^ liy le;;isltition
upon II representative of the Crown,
such as a colonial Oovernor, reside ?
Is it possessed liy any eolonial
legislature, ineliidin<; in that term,
Uinler our system of Federal
Oovernment, as well the Domi-
nion I'arliiiineiit as a provincial
Icf^islatiire, or is it coiitiiied to the
Im|H-riiil I'arlianieiit ? That the
Crown, alt lioufih it iiiiiy delej^nte to
its rcprcseiittitivc the I'Xerciso of
certain pieroiratives, cannot \'oliin-
tarily ilivest itself of them, seems to
he well recojjnised eonstitiitional
canon. Cpon this point of the
loi'nlity of the h';;isliitive power to
int«'rfcro .viththe royal prcioijativc,
I should have thou<;ht that the case
of Cushin;; r. Diipiiy [sev ante, p.
Ht)] and Jte Mnrois, in q. J)., Qiie-
U'C, 8 Feb. 1H62, 15 Moo. V. C.

IHH; 10 W. K. ;J2U; S Jiir \,s.
2(>H [Act in (piesiion there liiin^r
;{| (ieo. .'{. c. (5. of li. C.,ap|Miiinli|r
Mihu'l, ilecided hy the .liiiljiial
Committee with refereliee In tlir
jurisdiction of a eolonial li-;;islniiirr
to limit appeals to the Cjiiei'ii in
Council, would, if not direct
authorities, have had at least a \{'\\
material application to the iin'stiit
ipicstion. The jud;;iuciits delivcmj
ill the S. C. of Victoria in the nise
of Chun Tcon, ini)jht also jmvc
alToidcd us fjieat iissistanie " ; Init
lhes4- ipie.'-tions his riordshipdid not
decide.

Chun Tconj; Toy r. Miisfirovc
was appealed to the .liidicial ('(iiii-
mittcc, and it was there held
that in such ii cas4> it was not
neecssiiry to decide the f|iie>ii(iii
what ri^rhts the Victorian (loxerii-
mcnt had under its const itiitinn
derived from the Crown, it liiiiij;
siifncieiit for tlic decision of the
case that an alien had no le<;nl i'i;,'lit
eiiforceahle Ity action to enter
llriti.sh territory. [Sec March 18,
[1801] A. C. p. 28.'}; 00 L.J. I'.
C. 28 ; 04 I,. T. 378.]

ill

lloiiiK ''. 'I'll I-:
'i'KMi'ciiiAi.nir.H

lluAUII.

(1(5.) Goiiomlly, all iniitter.s of a imnvly lociil or
private iiaturo in the province.'

' All Act of I'arliament created
for two provinces and for ad-
vantage to both, such an Act can
only Im- idt«>red hy a parliament
liavin<r power to lefjislate for lioth
the provinces, which is the !)(»-
niinion.

In l)i)»iKr.Tiii:TKMi'ouAi.iTi!:.s
lioAKI), in Q. H. (^Ileliee, 1!) .Iiine
1880,20 li. C. .1. 170; in V. C.
.Jan. 21, 1882, 7 App. Cas. 13(5;
51 L. J. P. C. 20; »({ li. T. I,
the Judicial Committee held that an
Act of the Qiu'Ih-'C Lei^iHlatiire, 38
Vict. c. 04., which attempted to

repeal an i\ct of the Parliitiiieiil ol
the old province of Canada, tiiiil
which di'idt with funds and pro-
perty cxistin}^ in liotli Ontario
and QucIh'c, and Ix-lonfjiu}^ to a
church (the Presbyterian Cliiircli
of Canada in connection with tlir
Church of Scothmd) the tciri-
torial limits of which emlinici'il
hotli pi'ovinecs, and the f^ovcrii-
nieiit of which was not carriiil on
in one province alone, as iilttti
rires and invalid. Also that tin
Act liy Ontario and another hy
(iuelM'c, unanimuusly agreeing to
do thi.i thing, wuuld not be va'id.

n.N.A. ACT, ». 02 (KJ)— I>OMINIOX 11AII<WAYS. 320

It n>(|iiii'('il a Doiiiiiiioii Art. Scr

A li'i'iil Act I'Miiiiot lniii>r('r to
iiiKillii'i' ('()iii|itiiiy tlit^ |>i'(i|ifi't y i>t'
11 iiiilwiiy coinimny innir|«>iiii(<l Ity
I'liilimuciit. Sre Wimvffnu r. Moii-
tniil, Ottnwii, 1111)1 Occiilintiil
Hiiilwnv, .'{ Iii';;iil News, IH');
Wlinli'i's I'. ('. linw, 108; ill
1'. ('. ImIi. 20, IHHO, •) App. ('lis.
;{SI; 10 L. •!. I'. ('. <iH. It IV-
i|iiii'('<l nil Act of tlic Diiiiiiiiiiin
l*iii'liiniiciit hd'orc such ti'iiiist'cr
cdiilil III' viiliilati'd.

Ill Makkkk r. Crrv ok Khkiik-

Hl( TON, 1J> S. C. N. ». (.'{ I'llJiS.

mill Hiir.) 1:J0, Allen, C.J., siiid :
"Hiiil tliis Act [tlic C'luimlii
'IViupcraiicc Act, 1H7HJ proliiliitcil
the sale ol' liquor, iiistcatl ol'
iiiiTcly icslrictiii;.; and ic};iilatiii}i
it, I should have had no doiilit
alioiit tlic power of Parlianu'iil
to puss such an Act ; liiit I
think an Ai-t, which in elTcct
aiitlKii'ixi's the iiihahitants ul' cacli
tdwii or parish to rcf^ulate the sale
(if liipior, and to direct by whom,
for what pui'i><>se, and under what
c'oiiiiitioiis spiritiiou.s lirpiors may
Im- sold therein, deal.s with matters
of II merely local imture, which hy
the terms of the 16th siih-.sce.,
see. 02, of the H. X. A. Act, are
witliiii the e.veliisive control of the
local Icjrislatin-c."

Hut in HussELi, r. Tiik C^itickn,
inS.C. Jf. B. 1HH1,20S. C. N. 13.
(ll'ii'rs.audB.)53(l; in P. (.'.June
2:{, 1SS2,7 App. Cas. 820, p. 811 ;
51 L. -I. J>. V. 77; 1(5 L. T. HHO
[see siih-sec. 0], the Judicial
Committee said tiiey coidd not
concur in that view ; that in
slalut»'s of that kind the h'^jisla-
tioa is general, and the provi-
sions for the special tipplieatioii
of it to particiihir places docs not
alter its character [.v^r end of jml<;-
miiit ;;iveu sub-sec. 0, «»»/<■, p. 13oJ;
that it did not convert the Act
itself into legisktiuii in relation to
local matters.

OK l'"PKDKIIIC-
TUN.

In IfoiMii-: c. Tiik (-Ivr.r.y, llm-'tK n. Tan
;ioJuiic 1HH2. 7 (). A. U. 2J«5; '^'"'''•
ill I'. ('. Dec. 1.), 1,S8:{. 0 App.
Cms. 117; .").» li. J. I'. ('. 1 ; oO L.
T. \W\ [.v«T siili-scc. 0, sec. 02],
t'le .liidicial ('omiiiittce upheld
the power of the provincial le<ris-
litture of Ontario to delepite to
the licciisinir <'oiiiuiissioiier^! for
each municipality witiiin the pro-
vince the makiiii; rules lor rcjfula-
tiiii; and keeping; uiiiler control the
business of tin crn keeper or of shops
where spirituous lii|uor was .sold
by retail, and this to the e.Mcnt of '!^ ',',''„'!.'!, I.";. !.".'"
iiwardiii<; a tine, with the condition
atiaehed that, if not paid, or if not
snllicieiit distress, iniiuisonment
with hard labour followed.

Duriiifj tlicar}xuiiient in the Pro-
hibition liiipior ease, August 1st,
1805, Lord Ilersehell siiiil the ease
was decided under this sub-section,
coupled with suit-sees. 8 and 15.

Jiidjimcnt of the Lords of the L'I'.nionSt.
Judicial ('oniiiiit.ee in I/I'mon 5^;;;^^:,:^
St. J.\c<iiKs UK Mo.NTKK.vi, r. D.vmk.Ti;uis
D.VMK Jiri.iK Hklisi.k, 15 L. C. J. Ubi<"*'b-
212; in (2. H. (iuelH'c, 20 Sept.
1872; in P. ('. July 8, 1871,
L. H. (5 P. C. .31; 31' L.J. Ill;
22 W. R. 03.3.

Lord Selborne [there beiii<j also
present Sir James W. ('civile,
Sir Hurnes Peacock, Sir Moiit4i}^ue
K. Smith, and Sir Robert P.
Collier] delivered the following Risski.i, i'. Tub
judgment : — Queen.

"The sole ([ucstion in this
appeal is this, — whether the sub
ject-mattcr of the |>roviiicial Act,
the 33 Vict. c. 08., is one of
those which by the 01st scetioii
of the Doiuinion Act are reserved
exclusively for legishition by
the Dominion Legishiture. The
.seheme of the 01st and 92nd Si>c-
tions is this. Ry the 01st .section
some matters, — and their Lordships
may do well to a.ssume, for the
argument's sake, that they are
all mati -rs except those nfterward.s
doilt witli by the 02nd sec-tion^
their Lordships do not deuide it,

IMAGE EVALUATION
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Hiotographic

Sdences
Corporation

'4^^^^

23 WEST MAIN STREET

WEBSTER, N.Y. MS80

(716)872-4503

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ii:i;|

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L'Union St.
Jacques j>"
montheai- v.

1)AMK JUME
liELItiLE.

330 B.N.A. ACT, s. 92 (16). -RESERVATION FOR DOM.

but for the iu'<;niiu'nt'.s tuxkv they
will ii.'isuiiio if, — certain matters,
being iiiuni that assumption all
those which are not mentioned in
the 92n(l section, arc reserved for
the exclusive legislation of the
Parliament of Canada, calle<l the
Dominion Parliament ; but lieyond
controversy there are certain other
mutters, not only not reserved for
the Dominion Parliament, but
assigned to the; exclusive power
and competency of the provincial
legislature in each province.
Among those the last is thus
i'xpressed : — '(Jenerally all r.iatters
of a merely local or private nature
in the ])rovin( >.' Jf there is no-
thing to control that in the Ulst
section, it would seem manifest
that the subje- e '^cr-jf this Act,
the 33 Vict. e. ;'>,, is -i matter of ii
merely local or y, .'e nature in
the province, bee; "tt- ., relates to
a benevolent or biU' tit .society in-
eorpomt"d in the "ly oi Montreal
within the province, •.vlnch appears
to consist exclusively of mendiers
who would be subject y;;7"y« «_/</(■/<?
to the control of the provincial
legislature. This Act deals solely
with the affairs of tluit particular
society, and in this manner : taking
notice of a certain state of em-
barrassment resulting from what
it describes in substance; as im-
provident regulations of the so-
ciety, it imposes a forced commu-
tation of their I'xisting rights
upon two widows, who at the time
when that Act was passed were
annuitants of the .society under its
rules, reserving to them the rights
so cut down, in the future po.ssible
event of the improvement up to a
certain point of the affairs of the
association. Clearly this nuitter is
private ; clearly it is local, so far as
locality is to be considered, becausi;
it is in the province and in the
city of Montreal ; and unless,
therefore, the gt'iieral effec't of
that head of sec. 92 is for this
purpose qualified by something in
see. 91, it is a matter not only
witbiu the conipfcttncy, but within

the exclusive competency of the
provinciid leglslatur*'. Now sec.
91 qualities it undoubtedly, if it
be within any one of the different
classes of subjects there speciidlv
enumerated ; l)ecause the last and
concluding words of sec. 91 are, —
' And any matter coming within
any of the classes of subjects
enumeiated in this section slmll
not be ileemed to come within the
class of matters of a local or
private nature comprised in the
enumeration of the classes of sub-
jects by this Act assigned exclu-
sively to the legislatures of the
provincs.' But the onus is on
the respondent to show that tliis,
being in itself of a local or private
nature, does also come within one
or more of the classes of subjects
s[iecially enumerated in the 91st
.section.

"Now it has not been alleged
that it comes within any other
class of the subjects so enumerated
except the 21st, 'Bankruptcy and
insolvency ' ; and ti.e question
therefore is, whether this is a
matter coming under that class 21,
of bankruptcy and insolvency?
Their Lordships observe that the
scheme of enumeration in that
section is, to mention varioiis cate-
gories of general subjects which
may be dealt with by legislation.
There is no indication in any
instance of anything being con-
templated, except what may be
properly described as general legis-
lation ; such legislation as is well
expressed by Mr. Justice Caron
when he speaks of the general laws
governing Faillitc, bankruptcy
and insolvency, all which are well
known legal terms expressing
systems of legislation with which
tlie subjects of this country, and
probably of most other civilized
countries, are ijerfectly familiar.
The words describe in their known
legal sense provisions nuide by law
for the administration of the
estates of persons who may be-
come bankrupt or insolvenr, ac-
cording to rules and definitions

B.N.A. ACT, s. 92 (16).— LOCAL SOCIETIES.

331

preseribftl by lnw, ineliuling, of
coui'isi', the coiulitions in wliieli
tlmt law is to be brouglit into
opcnition, the luauiiev in wliieh it
is to be brought into o[)enition,
and tlie effect of its openition.
Well, no sneh general law eover-
iii"' this particular association is
alleged ever to have been passed by
the Dominion. The liy[)othesis
was suggested in argument by
Mr. Benjamin, who certainly ar-
gued this case with his usual
ingenuity and I'orce, of a law
having been previously passed by
the Dominion Legishiture, to the
effect that any association of this
particular kind throughout the
Dominion, on certain spccitied
conditions assumed to be exactly
those whieli a[)[)ear upon the face
of this statute, .should thereupon,
ipsi) facto, fall under the legal
Hilniinistration in bankruptcy or
insolvency. Their Lordships an;
by no means prei)ared to say that,
if any such law as that had been
pas-seil by the Dominion Legisla-
ture, it woidd lia\e been beyond
their competency ; nor that, if it
had been so pas.sed, it would liave
been within the competency of the
provincial legislature afterwards to
take a particuhir association out of
the scope of a general law of that
kind, .so competently i)assed by the
authority which had j)Ower to deal
whh bankruptcy and insolvency.
But no such law I'ver has bei'U
passed; and to suggest tin' jwssi-
liility of such a law as :i reason
why the power of the provincial
legishiture over this local and pri-
vate assochition should be in abey-
ance or altogether taken away, is
to make a suggestion which, if
tollowed up to its cousecpiences,
would go \ery far to destroy that
iwwer in uU aises.

"It was suggested, perhaps not
very iiecurately, in the course of
the argument, that upon the same
pnncii)le no part of the land in the
IJroviuee upon the sea coast could
lie dealt with, because, by possi-
bility, it might be required for u

lighthouse, and an Act might be I^'Unk : ^
passed bv the Dominion Legishi- JAf'i"*- i^ •
tiire to make a _ lighthouse t..— . i,,„„. jj,,,^
I hat was not a napjiy dlustratic , J5e,,isle.
because the whole of the sea coasi
is put within tin; exclusive cog-
nizance of the Dominion Legisla-
ture by another article ; but the
principle of the illustration may be
transferred to artich' 7, which gives
to the Dominion the exclusive right
of legislating as to all matters com-
ing under the head of ' militia,
military and naval service, and de-
fence.' Any part of the land in
the province of Quebec might W
taken bv the Dominion Legislature
for the purpose of military defence ;
and the argument is, if pu.shed to
its conseciuences, that because this
which has not been done as to some
l)artic\dar land might possibly have
been done, therefore, it not having
been done, all power over that land,
and therefore o\ er all the land in
the i)rovince, is taken away, so far
as relates to legislation concerniu''
matters of a merely local or pri-
vate nature. That, their Lordships
think, is neither a necessary or
reasonable, nor a just and proper
construction. The fact that this
particular society api)ears upon the
face of the provincial Act to have
been in a state of embarrassment,
and in such a financial condition
that, mdess relieved by legislation,
it might nave been likely to come
to ruin, does not prove that it was,
in any legal sense, within the cate-
gory of insolvt'iicy. And in point
of fact th(? whoh- tendency of the
Act is to keep it out of that cate-
gory, and not to bring it into it.
The Act does not terminate the
com[)any ; it does not propose a
final distribution of its as.sets on
the footing of insolvency or bank-
ruptcy ; it does not wind it tip.
On the contrary, it ccmtemplates
its going on, and possibly at some
future time recovering its [)ros-
perity, and then these creditors,
who seem on the face of the Act to
be somewhat summarily interfered
with, are to be reinstated.

332

B.N.A. ACT, s. 03 (1).— SCHOOL QUESTION.

■ 'l ;

. i ■ ■ , ■ '
;

'■ .' ■ !
'i ■' i

1 ^^

b "

L'Uk on St.
Jacquks db
montheal v.
Damk Julie
Bei.isi.e.

Qi;iRT V. Keu,

" Their Lordsliips me elearly of
opinion that tiiis its not an Act re-
hitingto hankruptcyaiid insolvency,
and will therct'oi'e humbly advise
Her Majesty that this appeal he
allowed, that the judgment of the
Court of Queen's Hench (Canada)
ought to he reversed, and that the
s\iit he dismissed. 'I'here will he
no costs of this appeal."

Quirt v. «eg, Nov. IG, 1801,
10 S. C. R. 510; 17 O. A. E. 121;
17 O. K. G15. The Dominion
Parliament passed an Act iuct)r-
pomting trn.stee.s, and giving them
authority to carry on the business

Legislation

rt'!-pt'ctiiig

education.

of the Upper Canada Bank, Mhioh
had become in.solvent, so far as was
necessary for the winding up of
the same ; and then, by u later Act,
33 Vict. c. 40., transferred all the
property of the bank vested in tlio
trustees to the dominion Govern-
ment. Held that these Acts were
valid under sec. 01, either suh-
sec. 15 or 21 ; and that, fui'thcr,
the property, being vested in the
Crown, was not liable to laxa-
tion under the Ontario Assessment
Act. l^nion St. Jaecpies ;•. Belisle,
July 8, 1874, [«cc abore] was dis-
tingtiished.

Education.

93. In and for each province, the legislature may
cxckisiA-ely make laws in relation to education, subject
and according to the following 2)rovisions : —

(1.) Nothing in any such law shall prejudicially affect
any right or privilege with respect to denomi-
national schools which any class of persons
have by law in the province at the Union ; ^

Maker v. Town
OF Portland.

Ritchie, C.J., said, in Maiikb
V. Town ofPouti-and, lS7i, post,
this was intended to mean just what
it expresses, viz., that "any," that
is "every," class of persons "hav-
ing any rights or privileges witli
respect to denominational schools,
whether such class should be one
ot the numerous denominations of
Protestants or Roman Catholics,

should be protected in such rights.
If it had been intended that the
clause should have been limited in its
application to Roman Catholics and
Protestants only as dissentient one
from the other, and apply to scliools
other than those usually i.iulerstood
us denominational schools, the legis-
lature would have used some ex-
pression indicating such a particular
sense." See past, p. 352.

(2.) All the powers, privileges, and duties at the
Union by law conferred and imposed in Upper
Canada on the separate schools and school
trustees of the Queen's Roman Catholic sub-
jects shall be and the same are hereby ex-
tended to the dissentient schools of the Queen's

B.N.A. ACT, s. 93 (3).— SEPARATE SCHOOLS.

333

Protestant and Roman Catholic subjects in
Quebec}

1 Ritchie, C.J., said, in Maher
i\ Town of Pouti.and, 1874 [see
yotP,y^"'''']> that the reforencp Iiere
to soparato and dissentient schools
is specially to schools of the Pro-
testant and Catholic; and it is
t'lliially clear siib-sec. 3 applies only

to schools oi' a like character exist-
ing in any of the four provinces.
But be was at a loss to understand
why sul)-secs. 2 and 3 should be held
to control or in any way limit or
affect 11 previous distinct enactment
— sub-sec. 1 — couched in plain and
unambiguous language.

Mahek v. Town
of poiitland.

(3.) Where in ai^y province a system of separate or
dissentient schools exists bv lav/" ^ at the Union

or is thereafter established by the lecjislatiire
of the province, an appeal shall lie to the
Governor- General in Council^ from any act
or decision of any provincial authority affect-
ing any right or privilege of the Protestant or
Roman Catholic minority of the Queen's sub-
jects in relation to education.

!if

I In the Act of 1870, 33 Vict.
(Doin.) c. 3. (affirmed bv Imperial
Act, 34 & 35 Viet. c. 28."), creating
the province of Manitoba, the only
iinportiuit difference between the
iibove section and that in the Mani-
toba Act [see p. 3G9, pnsfl is that
in sub-sec. 1 (which is a similar
section to the above) the words
" by law " are followed by the
words "or practice." Manitoba
before the Union was not an inde-
pendent province with a constitu-
tion and a legislature of its own.
It formed part of the vast territories
which belonged to the Hudson Bay
Company, antl was administered
by their agents. The po[)ulation
ohhe whole of Manitoba in 1870
was I8,ni)5, including (5,767 In-
ilians. and in 1870 Winnipeg, a
city containing 25,042 in 181)1,
coutained only 203 inhabitants.

The .ludicial Connnittee held, in
Barrett's case, that the Manitoba
provincial legislature Avas within
its powers in passing the Public
Schools Act of lb90, which schools

City of Win-
siPEO t'. ]}aii-

BETT AND
Loo AN.

were to be entirely non-sectarian
an<l supported by taxation, it in-
fringing no proved rights or privi-
leges of the Koman Catholics or
members of the Church of Eng'and.
See (_ :v of Winnipeg v Barrett
and Logan, Jidv 14, [1892] A. C.
445; Gl L.J. P. C. 58; 07 L. T.
429; and post. Judgment delivered
by Lord Macnaghten.

2 The Judicial Committee de-
cided these words did not operate
to withdraw a question which in-
volved the legality of an Act of
the provincial Parliament of Mani-
toba from the jurisdiction of the
ordinary tribimals of the country.
But sec Brojdiv v. Att.-Gen. for Bropht f.
:Manitoba,Jan. 29, [1895] A.C.202. Att.-Oen. fob

With regard to an Act respect- Manitoba.
iiig the Bar of the province of
Quebec, 1880, c. 34., the Minister
of .lustice (Thompson) .says (10
July 1887) a communication had
l)een received from the McGill
University asking that the Act be
disallowed on the ground that
it disoriuiiuates against the Pro-

"i I

'4.
1

:ui,j

\ ' ■ >,

1' ''

: '

.* ■:■

'.■'■

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; )

i
y.

;if

: i

Protestfint
Universities.

Schools. Opi-
nion of Minis-
ter of Justice.

334 B.N.A. ACT, 8. 93 (4).— THE PROVINCIAL BAR.

testant universities and schools
of Quebec in respect to tlie admis-
sion of students to the .study of the
hiw. The piijjers, howevei', showed
that tlie present (leneral Council
of the Bar consisted of seven Konuin
Catholics ;in<l four Protestiints,
while the proportion aec(irdin<i; lo
l)opuhition ought to be six to one.
The minister thouj^ht the Act, in
respect of provisions to which this
objection is directed, was within
the legislative authority of the
province, and there was no good
reason to apprehend the Legisla-
ture of Quebec would deal illiberally
bv the Protestant minoritv. He

therefore recommended the Act be
left to its operation. And, .se-
condly, the minister said : If the
ai)plicalion which the university
propo.scs tf) make to the Legislatuie
of (^lU'liec for relief is not enter-
tained, and a petition by way of
appeal is made to the Governor.
General in Council under sec. 0,'?
B. N. A. Act, that the Governor-
General in Council would carefuUv
consider the question of His Ex-
cellency's juri.sdiction and that of
Parliament in the premises and the
merits of tl.? ca.se as presented
bv such petition. Prov. Leg,
1888, 57.

(4.) In case any sncli provincial law as from time to
time sooms to tlio Governor- General in Conncil
requisite for th(5 duo execution of the pro-
visions of tin's section is not made, oi' in case
any decision of the Governor - G .eral in
Council on any appeal under this section is
not didy executed hy th<^ proper provincial
authoritv in that hehalf, then, and in everv
such case, nnd as far onlv as the circumstances
of each case require, the Parliament of Canada
niav mak(^ remedial laAVs for the due execution
of the provisions of tliis section and of any
decision of the Governor-General in Council
under this section.^

1 See Manitoba Act, poxf, ]). 3t)9.

The New Brunswick Legislature
j)assed, 17 May, a Connuon Schools
Act, 34 Vict. c. 21., in 1871. This
Act, sec. 1, repealed the Act of
21 Vict. c. 9. as to pai'ish schools,
and also the 20 Vict. c. 7. amend-
ing the same. It appeared that
prior to and down to the time of
union of the provinces of Canada,
Nova Scotia, and New Brunswick
under the B.N. A. Act, there existed
in the province of New Brun.swick
certain parochial schools established

under the 21
of the load

Vict. c. 9.,
legislature.

an Act
It was

claimed some of these were de-
nominational schools. Th(> new
Act, 34 Viet. e. 21., provided
that any sum required for any dis-
trict above the sums provided by
the province and county .should be
a charge upon the district and
raised on an assessment. Sec. 00
])rovi(Ie(l that all schools conducted
under the provisions of the Act
should be non-.sectarian. This Act
was considered to injuriously affect
the rights of the Roman Catholic
commiuiity, and the action of Henry
Maher v. Town of Portland was
raised by an ex parte application

I 1

B.N. A. ACT, s. 93 (4).— DENOMINATIONAL.

^35

to require the Town of Portland
to show cause why a writ of cor-
tiorai'i slionld not is.sno to (luasli an
Older of assessment made under the
Act. See post.

'I'iic law ollieors of tiie Crown,
Cdlrridjre and Jessel, 2i) Nov.
1S72, fjave it as tlieir opinion
"Tiiat wliatever may have heen
tiic practical working of the annual
ciliication <,'rant in the province of
Xi'W Brunswick, the Roman Catlio-
lics of that province liad no sndi
ri^lits, priviietjes, or schools as are
tiic subject of enactments in the
B. X. A. Act, 1HG7, sec. 93. It is
of course quite iossihle that the
new statute of i le provinces may
work in practice nnfa\oural>ly to
this or that denomination therein,
nnil therefore to the Roman Catho-
lics, Imt we do not think that such
a state of thinjjs is enough to
hring into operation tiie restraining
powers, or the powers of appeal
to the Governor-General in Coun-
cil, and the powers of remedial
lc;;islation in the Parliament of the
Uoniiuion contained in the 03rd
section."

On 20 Jan. 1872 the Minister of
Justice [John Macdonald] gave it
as ills opinion that as the Act
iijiplied to the whole school sy.stem
iif Xow Brunswick and Avas not
specially apphcid)le to denomi-
national schools, the Governor-
(Tcnond had no right to intervene.
Prov. Leg. 153. On I March
1871 it was resolved by the New
Rnuiswick Legisbiture : — " Where-
iis petitions numerously signed have
heen presented to this House pray-
ing that such amendnuMit may be
made in the Common School Act,
1871, as will sectu-e to Her Ma-
jesty's Roman Catliolic subjects of
this province schools generally
■<iiown iis ' separate schools.' And
whereas this House continues to
hohl the opinion that any system
iif education under the control and
■^upeivision of the State shotdd
grant to all the people of the pro-
vince similar and equal rights with-
out distinction of clas.s or creed.

ture

And whereas by the provisions of Ke.solutions of
the British North America Act, ^Ji- Legisla-
1H67, if a system of separate
schools is established, it sliall he
for ever thereafter be Iteyond the
|)ower of the l(>gislatur(( to inter-
fere with or repeal the Acts creat-
ing sw\\ a system. And whereas
certain ((.\clusive rights have been
vested in the legislature of this
province, guaranteed to it by the
terms and provisions of the British
North America Act, 18(57, the en-
joyment of which is essential to
the welfare of this province and
the harmonious working of the
Constitution.

"Resolved, that after careful
consideration of the said petitions,
and while ailirming that various im-
portant changes may advantageously
1)0 made from time to time in the
Acts I'elating to education whereby
the burdens imposed by the .said
Acts may be lightened or made to
fall more equitably, this House is
of opinion that no change in the
said Acts should be nnide whereby
special |)rivileges in respect of
denominational education shall he
grant(>d to any class of persons in
this province. Resolved, that in
the opiuion of this House no Acts
should V": done or passed whereby
the jurisdiction ancl powers of the
legislature established by the
British North America Actj 1867,
shall be impaired or curtailed
without the sanction of the people
of this province previously ex-
pressed at the polls, and, therefore,
resolv(>d that this House regrets it
cannot comply with the prayer of
the .said petitions; and further re-
.solved, that this House most re-
spectfully but firndy maintains and
submits that no Acts should be
done or passed at any time by the
Parliament of the United Kingdom
of Great Britain and Ireland, or by
the Parliament of the Dominion of
Canada, to impair, curtail, alter, or
withdraw the said rights, powers,
and juri.sdiction.s, or any of them,
without the requisition or consent
of this legislatui'c for that purpose

31!.

! i i

UK! '

I <

Address vote<l
by Canadian
House of Oiim-
mons.

Earl Curnni'-
von's letter.

336 B.N.A. ACT, H. 93 (4).— NEW BRUNSWICK SCHOOLS.

first mnde or obtained unci signified
by iiddross from the legislature of
this province."

An address was on 10 Maich
1875 voted by the House? of Coin-
nioiis of the J/oniinion ; —

" Tliat in the opinion of tliis
Housf, legislation by tiie I'ai'liii-
nient of tiie I'nited Kingdom en-
eronehing on any powers reserve(l
to any one of the provinces l)y tlie
Britisli North America Act, 1807,
would be an infraction of the pro-
vincial constitutions, and that it
would be inexpedient and fraught
with danger to the autonomy of
each of the provinces for this
House to invite such legislation.
"That on the 2i)th May 1872 the
Hou.se of Commons adopted the fol-
lowing resolution: — This Hou.se
regrets that the School Act recently
passed in New Brunswick is iin-
.satisfactory to a portion of the
inhabitants of that province, and
hopes that it may be so moditied
during the next session of the
Legislature of New Brunswick as
to remove any just ground of dis-
content that now exists. 'I'hat
this House regrets tliat the hope
expresseil in the said resolution lias
not been realised. That \\\> nio.st
humbly pray that your Majesty
M'ill be graciously pleased to use
the influt'uee of your !Majest_\ with
the Legislature of New Brunswick
to procure such a moditication of
the said Act as shall remove such
grounds of discontent."

This address was foi'warded to
Her Majesty, ami the Eai'l of Car-
narvon, 18 Oct. 1875, after stating
this addi'ess was receivi'd liy Her
Majesty, but he was not able to
advise Her Majt'sty to take any iic-
tion respecting it, said : " (2) 1 con-
cur that legislation by the Imperial
Parliament curtailing the powers
vesti'd in a province by the British
North America Act, 18(57, woulil
be an undue interference with the
provincial constitutions, and with
the terms on which the provinces
con.sented to become members of
the Dominion. And holding as I

do this opinion, while I cannot hut
feel that if I were to recommp'd
the Queen to intervene direc^tly in
this mr.tter by advising that Icgis-
latuiv to legislate in any particular
direction, I might be deemed to
counsel an interference with tho
.system of govermneiit establislipd
by the Act of I'nion not grentlv
differing from that which the ad-
dress deprecates. (3) For tills
reason I have not felt myself at
liberty to advise Her Majesty to
take any action. At the snme time,
there can be no impropriety in my
expressing the strong hope which
I entertain that, as in other British
comnumities, the majority of tlie
population in New BrunswicI;,
whi"h through its representatives
controls the educational sy.stem of
the province, may be disposed to
adopt such modifications of the
existing rules as may render tiiom
less unacceptable to those who from
conscientious reasons have felt
themselves obliged to contest
against the system now in force.
I cannot, in conclusion, consistiMitly
with my duty, refrain from observ-
ing that as education is one of tiie
subjects expressly and exclusively
reserved to the provincial legisla-
ture by the British North America
Act, 18G7, it is for the serious con-
sideration of those in New Brun.s-
wick who take an active part in
ndation to it, whether there can lie
any advantage, and whether there
must not be .serious inconvenience,
in bringing under public discussion
in the Dominion Legislature a con-
troverte<l (piestion which may pos-
sibly engender much lient and irri-
tiition, and over which it ims no
juiisliction."

The Earl of Kiniberley, in a de-
spatcli dated 30 June 1873, .stated
that certain Acts relating to tlie
school systi'in pas.sed by the New
Briniswick Legislature are, like the
Acts of 1871. within the powers of
that legislature, and interference
by the Canadian House of Com-
mons wouhl bi> a virtual repeal of
the .section of the Act of 18G7,

B.'N'.A. ACT, s. 93 (4).— MTNISTET^S OX ACTS. 337

whii'li ^ivcs the oxohisivp right of
It'cisliition in tlicso matters to the
provincial logisliitures. Prov. Leg.,
1886, p. 12.

This (lid noc end the mutter,
l)ecnus(' the question was then
raised, Conld the Governor-Generiil
act on his own individiinl dis-
cretion in deciding whether a pro-
vincial Act should be disallowed,
or was he to he guided hy the
advice of hi.s responsible ministers ?
Lord Carnarvon suggested that the
question was not one on whieh a rigid
rule of action .should be e.stablished.
The IMinistcr ot Justice, Edward
Blake, in a report 22 Dec. 1875,
said, inter alia, "The power of
(iisallowance of Canadian st^itutes
is, by sec. 56 of the British North
America Act, 1867, vested in the
Queen in Council. By see. 90 of
the same Act this provision is ex-
tended and applied to each pro-
vince as if it were re-euacted, and
is so made applicable in terms
thereto with the substitution,
among other things, of the Gover-
aor-Gcneral for the Queen. The
result is that, by the express words
',if the Act, the power of disallow-
iince of provincial statutes is vested
in the Governor-General in Coun-
cil, a phrase which, under the
13th section of the Act, means
tlie Governor- Gencrfil acting by
anil W'tli the advice of the Queen's
Privy ("ouncil of Canada. Sup-
li(i>inj; that the Act had vested the
|)ower of disallowance of Canadian
statutes in Her IMajesty, not adding
the words ' in Council,' it will not
he contended that the power so given
conli! he constitutionally exercised
otlierwise than under the advice of
Her JIajesty's ministers who would
111' responsiide for Her Majesty's
iii'tion, and, by ])arity of reasoning,
a ixmer of disallowance of provin-
Ciil statutes given to the Governor
toiild he exercised only under the
mhice of liis ministers wlio would
ho responsible for his action. It
results from the preceding observa-
tions that the only contingencies
which can arise are': (1) That the

S 2340.

Governor should propose to dis- DutyofQoTef-
allow a i)rovincial statute without "°'' '" Council,
or against the advice of his min-
isters. (2) That nnnisters .should
pr()])ose to di.sallow a provincial
statute without tlu; assent of tho
Governor. The position taken by
the Council is that neither of these
things can be done ; tliat the
power being vested in the Gover-
nor in Council, any action taken
must be accomplished by Order in
Council, and that a Governor who
thinks it necessary that a provin-
cial Act should be disallowed must
find ministers who will take the
responsibility of advising its dis-
allowance, while ministers who
think it necessary that a provincial
Act should be disallowed must
resign unless they can secure the
assent of the Governor to its dis-
allowance, ministers being in every
ease responsible to Parliament for
the course taken." The Minister of
Justice goes on to show that the
question is not the same as the
exercise of the prerogative of par-
don, because there the Governor,
to whom personally the Queen
delegates a very high prerogative,
that of pardon, cannot in any way
be relie\ed of the duty of judging
for himself in every case in which
that prerogative is proposed to be
exercised.

On 31 Oct. 1876 Lord Carnar-
von said his view was not one he
was prepared to insist strongly.
Sec Prov. Leg., 1886..

Reform.\toby Schools in Pro-
vinces.— New Brunswick passed
an Act, 38 Vict. c. 11, for the es-
tablishment of reformatory and in-
dustrial s(diools united under one
management. The Minister of
Justice (Edward Blake), 5 Dec.
1876, reported that the Act pro-
viding that the reformatory school,
when established, .shall be a re-
formatory prison, and the B. N. A.
Act authorizing the establishment
of reformatory prisons bj the pro-
vinces, this subject would appear
within the provincial jurisdiction.

■1

•,;.l

: I

Schools.
Further
opinion.

338

n.N.A. ACT, s. 03 (i).—r. E. I. SCHOOLS.

Princp Edwnrd Tslnnd Legisla-
tiiro passed the Publii; School Act
ol' 1H77. Tliis Act rcpcidod nil
previous existing laws on the snine
snlijeet, and appointed a Board of
Education and inspectors. The
Act provided tliat the support ol"
the scliools should come from locid
assessment, and from assistance
provided by the provincial trea-
sury. Sec. 02 enacted that all
schools conducted under the pro-
visions of this Act shall be non-sec-
tarian, and " the Bible may In.' read
in all such schools, and is hereby
authorized, anil the teachers hcreliy
required to open the .school on each
school day with the reading of sacred
scripture by those children wliose
parents or guardians de.sire it, Avith-
out comment, explanation, or re-
mark thereupon by the teacher;
but no children shall be required
to attend during such rending as
aforesaid unless desired by their
parents or guardians." After the
pas.sing of the Bill the Bishop of
Charlottetown presented to the Lieu-
tenant-Governor a memorial re-
questing him to withhold his assent,
on the ground that it interfered
with the rights of the Roman
Catholic conununity of the pro-
vince, as secured to them by the
0.3rd section of the B. X. A. Act.

in a

The Minister of Justice,

long rei)ort [which will be fcmndin
Prov. Leg., 18HG, p. 880], said:
The provision of the Constitu-
tional Act which .secures to any
pro\ince a system of separate or
tlii».sentient schools rc(iuire.s, as a
condition of interference by the
Federal authority to maintain that
privilege, that these schools shotdd
be separate or dissentient in their
nature by virtue of the law exist-
ing at the date which the province
joined the Union. And that it
was not contended that there was
any provision in any of the previous
Acts of the Legislature of Prince
Edward Island Avhich secured to
any sect the right of establishing an
independent school. That the argu-
ment of the bishops seemed to be

that although there was not in
existence any statutory ])rovision
empowering the Catholic conunu-
nity to establish an<l maintain
separate schools, and notwithstand-
ing there was in existence express
statutory provision to the conti'iirv,
they could, because such schools
had been virtually in operation,
mil on the Federal Govermnent to
jjrevent the legislature from cstii.
l)lishing any regulation with ic.
spect to schools generally, witlioiii
securing to them the right of main-
taining separate and denomina-
tional .schools. And the report winds
up, " If we are bound to consider
the right of regulating educiition
as absolutely appertaining to each
province except where the privi-
lege of establishing separate schools
exists by law, it must lie admitted
that they have equally the right to
attach to the provisions of such
laws the conditions and penalties
required to secure its object ; and,
liowever arbitrary and unjust it
may appear, it would not scimu
proper to the Federal Governinput
to attempt to interfere with tiie
details or the accessories of a
measure of the local legislature, the
principles and objects of which are
entirely within their jirovince."
"Inasmuch as sec. 15 enabled the
school trustees to levy a tax upon
the parents neglecting or refusing
to send their children to district
schools, and enabled the trus-
tees to levy the tax at their dis-
cretion, it seemed to depart in n
measure from the well-established
principle that taxation should ho
certain, and so far as possihlo
equally distributed." He there-
fore recommended the attention of
the Lieutenant-Governor be called
to such provision, otherwise he re-
commended the Act to be left to
its operation. The ;Minister of
Justice was R. La Flanune.

In Henry Maher v The Town-
Council OF Portland, the Judi-
cial Committee, by Queen's Order
datp;! 0 Aug. 187-4, on report from

II '

B.N.A. ACT, s. 93 (4).— THE PORTLAND CASE.

339

refusing
(listrii't
he triis-
tlii'ir (lis-
Diirt in ii
itablis^ic'l
loulil lip
j)0ssil)tp
ie theiv-
tcntion of
bo ('1»11<><1
lu' re-
be U'ftto
nister of
\e.

HE Tows

the Judi-
n's Order
,)(irt from

the Jutlicinl Coinniitteo, nffirmed the
judgnioMt of tlic Supremo Court of
New Brunswick, (luted 17 June
1873,1 IS. C.N.B.(iruf,'s.), 273,
wiiifli court refused to ^nint a rule
to roiiuire the Town of Portland
to show eai'so w'ly a writ of eer-
tiorari slioulil not lie issued to
quash nii order of assessment nuule
liV the respondents under llu^
Connnon Schools Act, 1871, 31
Vict. (N. B.) c. 21. The Supreme
Court <rnve Icnvo to appeal to the
Privy Council, and the Town of
Portland was summoned to settle
the terras of the appeal. The aj)-
pellant contended the Act, 34 Vict.
(N. B.) c. 21., was void, in face of
the 93nl section. That the rights
nnd privileges of the Roman
Catholic iidiabitants of the pro-
vince, of whom the appellant was
one, had been prejudicially affected.
He stated by affidavit that up to
the passing of the Act of 1871,
iu;d after the passing of an Act
relating to parish .schools, 21 Vict.
(', !)., that in the said schools the
special doctrines of the Itoman
Catliolic religion were taught.
That these schools were under
Government inspection, and retiirns
were made, nnd an annual allow-
ance made from the public funds,
and that there were in the province
2.50 of those schools, all of which
were established, nnd were receiv-
ing provincial allowance under
the Parish Schools Act, 1858.
That the ease of Roman Catholic
seiiools had been seriously im-
paired. Among other matters, sub-
sec. 12 of see. 58 of the Common
Schools Acts, 1871, prohibited in
effect the grant of jmblic aid to
any hut schools conducted under
the provisions of that Act, and
sec, GO expressly pro\ided that all
seliools conducted ninhn- the pro-
visions of that Act should be non-
sectarian. That the result of this
legislation was to withdraw from
such Eoman Catholic schools, or
from such schools in which the
Roman Catholic doctrine was dis-
tincti\ely taught, the enjoyment of

aid from public fimds, which was Maiikb u. Tow«
a right or privilege enjoye<l by that "' I'^i'T'-and.
large (dass of persons, the Roman
Catholics of the province, which
" right and privilege," therefore,
with respect to denominational
scdiools was by the Common Schools
Act, 1871, •' prejiidically af!ected
contrary to the jn'ovisions of the
B. N". A. Act, sec. S)3." The respon-
dents observed that the judgment
appealed from mendy refused to
show cau.se, and Avas given ex parte.
However, the leave of the Court of
New Brunswick to appeal to Her
Majesty in Council was granted on
hearing the respondents' counsel.
They .submitted in the fir.st place
the appeal was invalid, as the ex
^jQjYe judgment was not pronounced
in respect of any sum or matter or
issue above the value of 300/., and
did not involve any question re-
specting property, or any civil
right amounting to or of the value
of 300/., and the proper course was
to have obtaine<l not the ordinary
leave from the lower court to ap-
peal, but special leave from Her
^lajcstyin Council. That prior to
the union of the provinces there
existed in New Brunswick certain
parochial schools established under
a general Act, 21 Vict. c. O.,of the
local legi.slature, as well as certain
denominational .schools, incorpo-
rated under special acts of the pro-
vince. The parochial schools were
regulated by a general Act of the
local legislature, 21 Vict. (N. B.)
c. 9., an Act relating relating to
parish schools.

Sees. 1-4. The Governor in
Council was authorized to apjjoint
a chief superintendent of schools,
and a Boa/d of Education was es-
tablished for the province, consist-
ing of the Governor in Council
with the .superintendent of the
schools. The Board were em-
powered (among other things) to
make regulations for the " organi-
zation, government, and discipline
of parish schools, and the examina-
tion, classification, and mode of
licensing teachers, and the mode of

ili

I. i i

340

B.N.A. \CT,8. 03(1).— STIPULATED TEACHINO,

Maiibbw. Tow« certifying tlic time tiiuglit iind of
ofPobtlaw. paying thoni." Tiio Uoiird wcro
also to ii|)])()rtion all moneys gnintcd
by tlu) Icgisliitiirt' for tlif sui)[)()rt of
Hiicli "hcIiooIs among the scvci'ul
parishes, not nxcwding t'cM'tain pe-
cuniary limits." The Hoard were
to pro\ ide for the estal)lishment,
regulation, and government of
school libraries, and the selection
of books to be used therein, " but
no works of ii licentious, vicious,
or iinmoral tendency, or hostihi to
th(! Christian religion, or works on
controversial theology," were to be
admitted. The Board might make
such other regulations as they con-
sidered necessary. By sec. 5 the
superintendent was to have the
general supervision of the parish
schools, subject to the order of the
Board of Education.

Sec. 6 provided for the election
annually of three trustees of schools
in each parish, who were to be
subject to tlie same penalties for
refusal or neglect to act as other
town and parish officers, and who
were to divide their respective
pari.shes into convenient school dis-
tricts, and give any -luthorized
•school teacher authority in writing
to open a school in a district where
the inhabitants shoidd have pro-
vided a sufficient school-house and
secured the necessary salary. The
trustees were also empowered to
suspend or displace any teacher for
incapacity or any improper or im-
moral conduct, subject to the deci-
sion of the Board of Education,
and were also required once a year
to examine the schools in their
respective parishes. The trustees
might authorize such number of
schools as the wants of the popula-
tion might require, and might
authorize the employment of as-
sistant licensed teachers in large
schools. The trustees were also to
" apportion amongst the school dis-
tricts in their respective parishes
any moneys raised by county or
parish assessment for the support
and maintenance of the schools
therein in such manner as thev

.should deem just and (Mpiitable " ;
and it was further provided tln-.t
" any [jarisli ailojjting (he priiu iple
of assessment, ami the siuu re(iiiiiv(l
for a teai'her being assessed ami
paid, should for every year such
assessment was so madeand jxiid, re-
ceive from the provincial trcasMii'r
10 per cent, over tlu^ allowance to
schools of the same class in |)iirislics
or districts not so assessed, to he
apportioned and paid to teaclicis
therein." Sec. 7 provided for llie
election by the inhabitants of a ills-
trict (being ratepayer.s) of a school
committee of three persons, \vl:o
wore to have chargi? of the school-
house, furniture, an<l grounds, mul
who wi-re empowered to call meet-
ings of the inhabitants for the piu--
po.so of providing school-lioiisc
books, apparatus, furniture, mid
fuel for the support of the scliool,
and who might admit so many free
scholars, and also children at re-
duced rates, being children of poor
or indigent parents.

Sec. 8. " Teachers, male niid
fenude, shall be divided into three
classes. Male teachers of lirst class
to teach spelling, reading, writing,
arithmeiic, English grammar, geo-
graphy, history, book-keei)iiig, geo-
metry, mensuration, land sm-veyiiig,
navigation, algebra." Of the se-
cond class and third these suhjcets
in a minor degree. " E\ ery teaciier
of the first and second class slmll
be ([ualifled and enjoined to iinpiut
to his pupils a knowledge of geo-
graphy, history, and the resources
of the province of New Brunswick
and the adjoining North American
colonics." Female teachers of the
finst class were to teach the above
down to history, and so of st'cond
and third class. Then (5th par.),
" Every teacher shall take diligent
care and exert his best endea-
vours to impress upon the niiiuls
of the children committed to his
care the principles of Christianity,
morality, and justice, and a sa-
cred regard to truth and honest}',
love of their country, loyalty, hu-
manity, and univer.sal Iwucvolence,

ij: ■iw.ij

B.N.A. ACT, s. 93 (4) —SCHOOL ASSESSMENTS. 341

solii'icty, iniliistiy and frngiility,
cliiistily, iiioilfnitioii and tcinpci'-
;iiic(', onli'i' iiiiil c'Icaiiliiicss, ami all
(illiii\ i'liu's wliicliaiv oniaiiKMitsot'
liuiiii'ii .society, biitiHt [iiiiiil sliiill lie
ic([iiir('(l to rcatl or stinly in oi'
iVoui any rclif^ions book, or jo'n in
iiiiv net oi' devotion objected ti» l>y
iiis parents or fjnai'dians ; and the
Uoiinl of I'Mueation sliall, l)y T'^h-
liitioii, secure to ail cliildi'en wlujse
liarciits or fjiairdians do not ohjeet
to it tlie reading of tin- Uihl.' in
l>iiri>li sdiools, and the JJiMes,
wlii'ii read in parish schools liy
KiiMian Catholic children, shaii, if
i'i'(|aired hy their parents or ^dnr-
(lians, he the Doiiui/ version, ^vith-
(iiit note or comment." Sec. 11 and
I'ciilowing section made [)rovisions
for assessment wherever any county,
parish, district, or innnicipality de-
tiTuiiiied to i)ro\ido for the snpport
of schools therein by assessment
"Such asses.sniont to he le\ieu ruii
I'oilf'cted in the same manner, iu all
rcsiiccts, as other cou:'i . or pari.sh
rates." Sees. It, 15. A public meet-
ing of till.' rateable inhabitants of any
parish or district might be called by
till' trustees for the purpose of de-
tei'Miining upon the propriety of
raising the necessary amount re-
quiroil for school purpo.ses by as-
sessment. If a majority of the
ratepayers present should agree to
raise a sum by assessment either
for the support of the teacher or
oi'rtaiii other purposes specified in
tlu' Act, the chairman of the meeting
was to transmit the \ote or resolu-
tion specifying the sum to be raised
to the assessors of rates for the
parish, and the assessors were to
make out the assessment list as
near as might be in the form pre-
scribed for county or parish rates,
and deliver the list to the collector
of rates with a precept endorsed
tliereon. Sec. 24 provided tliat any
ilistriet school supported by assess-
ment should 1)e free to all the chil-
ilreii residing therein. Se-i. 27.
Tiio Governor in Council was to
issue warrants on the Province trea-
sury for the payment of the several

allowances and salaries provided in Maiikiu'. Town
the Act. This Act was anuMided <>r 1'outi.and.
(2(5 Viet. c. 7.), which mci'cly gave
power to the Hoard of Kdiicatioi
to order a redivision of districts.

The respoiulents observed in their
case that the parish .schools con-
templated by the Act, of which the
main proxisions have been above set
forth, in substance were of two kinds;
iirst, .schools supported by an as-
sessment on the ratepayers and also
receiving grants from tlu' provincial
treasury, and, second, .schools not
supported by assessment and re-
ceiving grants from the i)rovincial
treasury to an amount less by
10 per cent, than in the case of
schools in which the principle of
assessment should be carried out.
And they submitted, as regards as
well the pari.'<h schools supported
as tlio.se not supported by as.sess-
nient, that such schools were to bo
in no son.se sectarian or denomina-
tional ; that, on the coiitrai-y, they
were general public schools, orga-
nized and regulated for the benefit
of all the inhabitants of the pro-
vince, and iu respect of which no
class of persons had any special
right or privilege whatever. That
so far as appears from tlie printed
record, or from the printed return
made, the only .schools in the
province of New Brunswick, other
than the parish schools, which,
down to and at the passing of the
B. N. A. Act, 18G7, had any .sta-
tutory constitution or recognition,
were "The Wesleyan Awidemy,
Sackville," incorporated bv a local
Act, 12 Vict. c. 05, "TheVarley
School," which formed the .subject
of another Act, 13 Vict. c. 2., " The
Madras School," constituted by
charter on the principle of the
schools of the National Society in
England, and certain Baptist and
Koman Catholic schools recognised
by various local Acts anterior to the
said " Parish Schools Act," and
which are enumerated in the judg-
ment of the S. C. The schools last
mentioned, and which were of the
nature of denominational schools,

'!'!•!

[1! \i

111

342

B.N. A. ACT, ». 93 (4).— COMMON SCHOOLS.

i:'-

MAiiEut). Town were in no w.iy affected by
opl'oKTLAND. « p„ri,sh Scliools Act," nor li

i I !

'If

the
Imve
tliey l)t'eu in iiiiy way aiiectcd by
till' " Common Schools Act." On
tlic 17th Mav 1H71, " The Common
Schools Act"," 31 Vict. e. 21. (the
Act in quo.stion) was passed by the
Lieutenant-Governor, Legislative
Council, and Assembly of the pro-
vince of New Brunswick. It (sec.
Gl) repealed the Parish Schools
Act, 18.58, 21 Vict. c. 9., and an-
other Act, 30 Vict, c 27., amending
the same.

The Common Schools Act, see. 3,
provides for the appointment by
the Governor in Council of a chief
superintendent of education. Sec. 5
api)oints the Gowrnor, the mem-
bers of the Executive Council, the
president of the University of New
Brunswick, and the Superintendent
of Education, as a Board of Edu-
cation, who were " to make regu-
lations for the organization, go-
vernment and discipline of the
schools, and for the classirication of
schools and teachers, to appoint
examiners of teachers, and to grant
and cancel licenses," and " to pre-
scribe text-books and apparatus for
the use of schools, books for public
libraries, and plans for the con-
struction and furnishing of school-
houses" Sec. 7. Tlie superinten-
dent was to have a general super-
vision of inspectors of schools and
to enforce the provisions of the Act.
Sec. 8. The inspectors ap])ointed
were " to aid in carrying out an
uniform system of education."
See. 9 pro\ided for the salary of
the teachers, from, first, provincial
treasury ; second, county .school
fuiul ; third, district a,s.sessment,
All other items of expenditure were
to be provided for by district or
local assessment.

Sec. i2. " The clerk of the peace
in each county shall add to the
Sinn auiuially voted for general
county purposes at the; general
.sessions, a sum sufficient, after de-
ducting costs of collection, receiving
and disbursing, and prol)able loss,
to yield uu amount equal to 30 ceut»

for every inhabitant of the eountv
according to the last jjreccding
census, and the sum so added shall
form and be a [jortion of the eountv
rates aiul shall be le\ie(l and col-
lected as other county rates, und
shall form a county school fund."
See. 14 pro\ided that any sum re-
quired by any district in furl her
payment of teachers' salaries over
and above the sums as above
l)rovided by the province and
county, and any sum recpiired for
other school purposes during the
year, including tb.'" i)urchase, rent,
and improvenu'ut of school grounds,
and generally of furniture, fuel,
books, interest, or any other ex-
penses required in providing iiii
efficient school, should be deter-
mined by the school di.striet in its
school meeting, and any amount so
determined on should be a cL.iige
on the district, and should be levied
as follows: on every male persoii
21 years of age and upwards,
having resided in such district for
one month, §1 as a poll tax. Tiie
balance of the sum authorized to
be assessed was to be levied on the
real and personal property within
the parish and income of the resi-
dents of the district according to
the taxable valuation of the same
on the parish books, and iqjon the
real ami personal property situated
within the district of non-residents
according to such valuation. No
Mt'rson was to be liable to more
than one poll tax in the year.
Sec. 58 makes special provisions for
the management of schools in
St. John's and Fredericton, which,
previously to the 1st Jan. 1872,
were extended to the town of Poit-
land under sec. 59.

Sec. 58, sub-sec. 9, enacted that
any sum required for the yearly
support and maintenance of the
schools, and for the due execution
of the different powers and trusts
\est<'d in the Board by this Act,
sliould be determined upon annually
by the Board, and sub-sec. 12 en-
acted no public funds were to be
granted iu support of any school

B.N.A. ACT, H. 93 (4).— NON-SECTARIAN SCHOOLS. 343

unless i)ie same be a free school
1111(1 ooiuliK'tcd in every respect in
coiit'onnity with this Act and the
iwiuireuiciits of the Boartl of
Education. See. 58, s)ib-see. 5. It
i-iiall be the duty of the trustees
to provide school tuition free of
charge to all children from .") to
20 years of age inclusive who may
be resident in the district, and,
wiieii autiiorized by the school
meeting, improved school acconnno-
(iation, with power to admit to
school privileges jjupils from other
districts," with a fee from those if
iiecessiiry; (2) to regidate tim," of
attenchmcc ; (3) to employ teachers
for the district, and dismiss if
necessary ; (4) to visit monthly to
see tiiat the schools are proi)erly
supplied with the books prescribed
by the Board of Education, ami
that no unauthorized books are
used. Sees. -17, 48, and 49 con-
tiiined provisions as regard teachers,
that they should keep a register,
t'aithfuUy teach all branches re-
quired to he taught in accordance
with their engagement with the
trustees, have a care to the health
aud enforce cleanliness in the
scholars, and half-yearly hold an
examination.

Sec. GO declares that " all
schools co'.iducted under the pro-
visions of this Act shall be non-
sectariau."

The res|)ondents submitted that
hy tile " Counnon Schools Act '"
till' grant from the provincial
treasury, which had previously de-
peudcd on the annual votes in
supply, became fixed by law, and
tliiit under the Act, as under
the former law, the imposition of
district assessments was left to be
ilwided by the vote of a nmjority
of the rntepayers of the district.
Under the new Act, as under the
former Act, the schools were to be
Mibject to such regulations as might
Ih' issued by the Board of Educa-
tion j and it was submitted that the
new Act did not, mare than did
the Piirish Schools Act, iu any
wiiy affect or deal with denomi-

national schools, and that the new Maiieb v. Town
Act left any right or privilege ot roiiTL.^ND.
which any class of persons by law
previously had with respect to
denominational schools wholly uu-
toucheil.

On the 14th April 1873 the
Board of School Trustees of Port-
land uotiiied to the respondents
that the sum required for the
coming year's support aud main-
tenance of the schools of the dis-
trict muler the control of the Board
was .SI 2, 128, and the respondents
were requested to levy that sum,
which they did by issuing an onh'r
that the sum be assessed iqxm the
town of Porthmd and the inhabi-
tants thereof, and that a warrant
should issue under the seal of the
town to the assessors of taxes to
levy and assess the .sami'.

On IG June 1873 the api)ellaiit
nio\ed the S. C. for a rule to show
cause why a certiorari should not
be issued to remove into court the
said order of assessment, in order
that the same might be quashed.
The appellant filed three atliihivits,
one by himself, stating he was a
ratepayer in the town of Portland,
and was rated for the year 1872 in
the sum of 53 dollars and 83 cents
for school purposes luider the Com-
mon Schools Act, and was subject
to assessment for the current year,
1873, That he was one of Her
Majesty's Boman Catholic subjects
residing iu the said town of Port-
land, and he chiimed that his rights
in relation to the education of his
children were prejudicially affected
by the said Act. The aHidavit did
not ilisclose how thesi' rights were
affected. Another aiflda\it was
made by one II. McCann, a former
teacher of a common school in the
town of Portlanil, under the Pro-
vincial Board of Education for
upwards of 20 years to Jan. 1872,
when the Counnon Schools Act
■;ame into operation. That he ceased
to teach when the Act came into
force, feeling that he could not, as
a Roman Catholic, conscientiously
continue tu teach Roman Catholic

i ¥

' il

i i!

i I

■ I

344 B.N.A. ACT, s. 93 (4).— ROMAN CATHOLIC SCHOOLS.

Mahbb v. Town pupils and comply with the require-
OF PoBTLAND. ments of the Act. That after the
Act passed, 21 Vict. c. 9., came
into force he taught a school uuder
that Act, and durin" all the time
he so taught under that Act he
taught his Roman Catholic pupils
with the knowledge and consent
of the inspectoi' of schools, without
any objection from the parents of
his Protestant pupils, and he taught
the Protestfint pupils out of the
different Protestant catechisms.
That from 18G1 to 1866, in a(hli-
tion to teaching the Roman Catholic
catechism as ahove, he used read-
ing books published by the Christian
Brothers,exclusively for «// children.
That the schools so taught were
examined and visited by the in-
spector and trustees of schools, and
that he made returns semi-annually,
which returns contained the books
used for his school, including the
Roman Catholic catechism and the
books of the Christian Brothers,
and that after such return had
been made he had received semi-
annual allowance from the pro-
vince. That while he so taught he
remembered ten other Roman
Catholic teachers who taught
schools in the same manner under
the Act 21 Vict. c. 9. A third
affida\it was sworn by one Francois
Cormier, a Roman Catholic priest,
one of the curates in the city of
St. John, to the effect : That in 1864
he was examined by the examiners
of teachers for schools uuder the
Act 21 Vict. c. 9., and obtained a
license to teacl'. a school luider the
said Act. That amongst the works
he was examined in, with a view to
his qualification to teach a school,
was Le Nouveau Traite des De-
voirs du Chretien, a book published
by the Christian Brothi-rs, which
proposes to explain the Catholic
doctrine and dogmas, and which is
used as a reading book for the
children in Quebec. That he, under
said license, taught a school in
the parish of Dorchester, county
of Westmoreland for upwards of
18 months, and used, Le Petit

Catechisme de Quebec, the Roman
Catholic catechism, the book above-
mentioned, and other school books
used in the Roman Catholic schools
of Quebec. That he also com-
menced the school by Roman
Catholic prayers and closed it with
similar prayers, and during school
hours o\ery day explained to the
pupils Catholic doctrines and doc-
mas. That during a great part of
the time that he taught in Dorches-
ter the school was as exclusively
Roman Catholic as the Roman
Catholic schools of Quebec.'. Tliat
the school was inspected, and he
remembers the inspector examining
the children in the book above first
mentioned, and that he made his
semi-annual returns and received
his allowance under the said Act.
That he remembers 25 to 30 schools
of the same description as the one
taught by himself in Westmoreland
and in which the same books were
used. And he believed there were
upwards of 250 schools of the
same description in the province,
all of which were established and
received provincial allowance under
the said Act, when the Common
Schools Act was passed. The
appellant contendi,d that the liberty
of teaching sectarian or denomi-
national doctrines to the pupils,
and of using sectarian and denomi-
national books and prayers in the
Roman Catholic schools, which, by
the affidavits, were proved to have
been enjoyed by the teachers of
Roman Catholic schools within the
province, consistently and con-
currently with their receij)! of
allowances from public funds, had
in the case of Roman Catholic
schools been seriously interfered
with. Amongst other things, sub-
sec. 12 of sec. 58 of the Act of
1871, prohibited, in effect, the
grant of any aid to any but schools
conducted under the provisions of
that Act, and sec. 60 expressl)' en-
acted that all schools conducted
under the provisions of that Act
should be non-sectarian. The re-
sult of this legislation, therefore,

B.N.A. ACT, s. 93 (4).— GRANTS TO SCHOOLS. 345

TJ"j

was to \vitli(lraw from such Roinan
Catholic schools, oi' from such
schools lu which llouian Catholic
doctrines were distinct ivcly taught,
the enjoyment of aid from pul)lic
fimdi-, a right or privilege proved
)jv the athchivits to have hoen en-
joyed by that large class of per-
sons— the lloman Catholics of the
province, and which "right" or
" privilege," therefore, " with re-
spect to denominational schools"
was by the operation of " The Com-
mon Schools Act, 1871," preju-
dicially affected contrary to the
provisions of the B. N. A. Act,
sec. 93. The respondents contended
that it appeared the appellant did
uot maintain that the Act of 1871
prejudicially affected any right or
privilege which any class of per-
sons at the time of the Union had
with respect to any of the then
exisiting special denominational
schools, such as the " Wesleyan
Academy" and the others men-
tioned, but that, irrespective of these
particular schools, the Parish
School Act had reference to and
created rights and privileges with
respect to schools which were pro-
perly to be termed denominational.
On 17 June 1873, the Supreme
Court, N. B., unanimously refused
the rule. Ritchie, C.J., delivered the
following as the judgment of him-
self and of Allen and Weldon, J J. :
''This was an application for a
certiorari to remove into this Court
au order for an assessment upon
the town of Portland, under the
Common Schools Act, 1871, in
order that the same may be (piashed
upon the ground that this Act
eoEtra\eues the B. N. A. Act, and
is consequently void and of no
effect. We have never doubted
that, when a provincial Act and
an Imperial statute are repug-
nant, so far as such repugnancy
extends, but no further, the pro-
vincial Act is void,aud this prmciple
has been, since the passing of the
B.N. A. Act, 1867, on several occa-
sions enunciated in and acted on in
this Court, and we should not have

thought it necessary now to refer to Maheb v. Town
it, .still less to support by authorities, of Portland,
the views we have always enter- Eitehie, C.J.
tained on this point (without any
doubts), wen; it not that we observe
that in the neighbouring province
of Quebec the question has been
much discussed, and the court
divided in their opinions on the
subject, though the majority arrived
at the same conclusion as that
which has hitherto governed this
Court. We have always thought it
a constitutional principle, too clear
to be .seriously questioned, that the
subordinate legislative power of a
colonial legislature must succumb
to the supreme legislative power
and control of the Parliament of
Great Britain, and, therefore, have
heretofore considered it wholly un-
necessary to cite any authority;
but, as there is a clear statutory
recognition, as well as the highest
judicial declaration, in support of
the accuracy of. the view we have
acted on, we think it as well now to
name them. [He reads 28 & 2i) Vict,
c. 63. ss. 2, 3 ; see post, Schedule A.]
And this statute has undergone judi-
cial comment in the case of Phillips
V. Eyre, 1870, L. R. 6 Q. B. p. 20,
where Willes, .J., in delivering
the judgment of the Exchequer
Chamber, in stating the effect of
this statute, after putting forward
what has already been considered
law in this province, viz., that au
English statute only binds the
province when it is by the expi-ess
words of the statute, or by necessary
intendment, made clearly applicable
to the province, says : ' It was
urged that the Act in ipiestiou (an
Act passed by the Legislature of
.Jamaica) was contrary to the prin-
ciples of English law, and, there-
fore, void. This,' he sjiys, ' is a
vague expression, and mu^^i mean
either contrary to some positive
law of England, or to some princi-
ple of natural justice, the violation
of which would induce the court to
decline to give effect even to the
law of a foreign sovereign state.
In the former point of view, it is

■t '

! I

HI i

i.:,:Sf

346 RN.A. ACT, s. 93 (4).— A DECISION OF H. OF LORDS.

Maherd.Town clear that the repugnancy to
OF Portland. English law which a\oi(ls a colonial

Ritchie, C.J.

li!-

:!:h

I i

«! 'I

Act means repugnancy to an Im-
perial statute, or order made by
authority of such statute, applicable
to the colony by express words or
necessary intendment ; and that, so
far as such repugnancy extends,
and no further, the colonial Act is
void.' But long prior to the
passing of either the 28 & 29 Viet.
c. G3., or the B. N. A. Act, 18G7,
the judiciary of England authorita-
tively declared what the law was on
this subject, in answer to a question
propounded to the judges by the
Hou.se of Lords. On 4 May 1840
\_see Debate, 53 Hansard, 3, 5,
626; 72 Lords' Jours., pp. 224,
254], the Lord Chief Justice of the
Ct. of C. P. delivered the imani-
mous opinion of the judges (with
the exception of Lords Denmau
and Abinger, who did not attend
the meeting of judges) upon the
questions of law propounded to
them respecting theClergvBeserves
(Canada) Act [7 & 8 Geo.' 1. c. 62.].
In answer to the question lastly
propounded [ques. 3], which is as
follows, ' Whether the Legislative
Council and Assembly ^r the pro-
vince of Upper Canada, having in
an Act " To pro\ide for the sale of
the Clergy lleserves, and for the
distribution of the proceeds thereof,"
enacted that it should be lawful
for the Governor, by and with the
advice of the Executive Council, to
sell, alienate, and convey in fee
simple all or any of the said Clergy
lleserves ; and, ha\ ing further
enacted in the same Act that the
proceeds of all past sales of such re-
serves which have been, or may be,
vested under the authority of the
Act of the Imperial Parliament
passed in the 7 & 8 of Geo. 4. c. 62.,
intituhid " An Act to authorize the
sale of part of the -'lergy reserves in
the provinces of Upper and Lower
Canada," shall be subject to such
orders and directions as the Gover-
nor in Council shall make and
establish for investing in any secu-
rities within the province of Upper

Canada the amount now funded in
England, together with the proceeds
hereafter to be received from tlio
sales of all or any of the said
reserves, or any part of theui, did
in making such enactments, or
either of them, exceed their lawful
authority,' his Lordship said:—
' In answer to the last question
propounded, we all agree in tho
opinion that the Legislative Council
and Assembly of the province of
Upper Canada have exceedeil their
authority in passing the Act " To
provide for the sale of the Clergy
Keserves, ttc," in respect of both
the enactments specitied in your
Lordships' question. As to the en-
actment " that it should be lawful
for the Governor, by and with the ad-
\ ice of the Executive Council, to sell,
alienate, and convey in fee simple,
all or any of the clergy reserves " ;
we have in answer to the .secoiKl
question already stated our opinion
to be such, that it is inconsistent
with an} such power in the colonial
legislature; and as to the enact-
ment "That the proceeds of all
past sales of such reserves, which
have been or may be invested under
the authority of the Act of the
Imperial Parliament, passed in the
7 & 8 Geo. 4. c. 62., for authorizing
the sale of part of the clergy re-
serves in the provinces of Upper
and Lower Canachi shall be subject
to such orders and directions ii.s
the Governor in Council shall make
and establish for investing in iuiy
securities within the province of
Upper Canada the amoimt now
funded in England, together with
the proceeds hereafter to be received
from the sides of all or any of the sale
reserves" ; we think such enactment
is, in its terms, inconsistent with and
contradictory to the provisions of
the sbitute of the Imperial Parlia-
ment 7 & 8 Geo. 4. (c. 62.), and,
therefore, void, there being no ex-
press authority reserved by that Act
to the colonial legislature to repeal
the provisions of such latter statute.'
Assuming, then, that it is not only
right, but the bounden duty of this

B.N.A. ACT, s. 93 (4).— RIGHTS & PRIVILEGES. 347

Court to (Iwil with questions of tliis
imtiu'i' wlicii legitiiimtcly presented
for its I'onsiilei'fition, wv nnist en-
deavour to ascertain whether tiiere
is siieii ii repugnancy in this case as
will constrain us to declare the
Cominon Schools Act, 1871, void in
part or in whole. [Reads sec. i)3,
stib-secs. 1, 2,3, 4 of the B. N. A.
Act.] It is now contended that
the rights and privileges of the
Koiiiaii Catholic inhabitants of this
province, as ii class of persons,
liave been prejudicially affected
hy the Common Schools Act, 1871.
contrary to the provision of sub-
sec. 1 of sec. 93. We have now to
determine whether any chiss of
persons liad by law in this province
auv right or privilege with respect
to denominational schools at the
Union, which are prejudicially
affecteil by the Coniuiou Schools
Act, 1871. This renders it neces-
sary that we should, with accuracy
ami precision, ascertain exactly
what the state of the law was with
reference to denominational schools
and the rights of the classes of per-
sons in respect thereto at the Union.
At that time, what may fairly and
legitimately be called the common
school system of the province was
carried on luider an Act passed,
21 Vict. c. 9., intituled ' An Act re-
lating to Parish Schools.' There
were no doubt at the same time in
existence, iu addition to the schools
established under the Parish School
Act, schools of an unquestionably
lienouiiuational character, belonging
to and under the immediate govern-
ment and control of particular de-
uominatious, and in which, there
can be no doubt, or it may reason-
ably be inferred, the peculiar doc-
trines and tenets of the denomina-
tions to which they respectively
belonged were exclusively taught,
and therefore had, what may rightly
be esteemed, all the characteristics
of denominiitional schools pure and
simple. We do not here refer to
collegiate in.stitutious, which it has
been strongly and with great force
urged were not within the contem-

plation of the Imperial Parliament, Maker «. Town
or intended to be nffected by the of Portland.
B. N". i^. Act, but we refer to such U'tchie, C.J.
schools as the Wesleyan Academ}',
Sackville, as iucorporated by the
12 Vict. c. G5.,amended by 19 Vict,
c. 65., a corporation entirely distinct
in law, as, we presume, also in fact,
from the college which the trustees
of that academy are authorized to
found and establish under 21 Vict.
c. 57., an institution entirely under
the control of the Wesleyan de-
nomination, and in which, or in iiny
department thereof, or in any reli-
gions services held upon the .s.ud
premises, it is enacted that no
person shall teach, maintain, pro-
nndgate, or enforce any religions
doctrine oi- practice contrary to
what is contained in certain notes
on the Xew Testament, conunouly
reputed to be notes of Rev. John
Wesley, A.M., and in the lirst four
vols, of sermons conunonly re|)uted
to have been written and i)ublished
by him. The Varley School, en-
dowed by the late Mark Varley,
who bequeathed certain property
'to the trustees of the Wesleyan
Methodist Church of the city of
St. John,' ' for the establishment
and maintenance of a day school,'
which devise was confirmed by the
Act 13 Viet. c. 2., and the property
vested in certain persons, namely,
the trustees of the said Wesleyan
Methodist Church in the city of
St. John, in connection with the
British Conference upon trusts, &c.,
in said will. The Madras School,
Avhicli, by its charter, is to be cou-
tlucteil according to the .system
called the IVIadras .system, as im-
l)roveil by Dr. Bell, and in use and
practice iu the British National
Education Society, incorporated
and established iu England, which
National Society, incorporated in
1811, was incorporated in 1817 for
promoting the education of the poor
in the principles of the Established
Church throughout England and
Wales ; the schools established by
such society being purely denomi-
national, in which the children

348 B.N.A. ACT, s, 93 (4).— SCHOOLS & SPECIAL GRANTS.

ill

MAHBn«.TowN are to be instrncted in the Holy
OF Portland. Scriptures, nnd in the liturgy
Eitchie, C.J. and oateehism of the Estahlishcll
Ch.H'fh, nnd, ' with respect to such
instruction, the schools arc to be
subject to the superintendence of
the parochial clergy, and the masters
and mistresses are to be members of
the Church of England.' And the
Baptist Academy or Seminary, the
Roman Catholic School established
in the city of St. .John, the Free
School in Portland under the Board
of Commissioners of tlie Roman
Catholic School in St John, the
Roman Catholic School in Frede-
ricton, the Roman Catholic School
in St. Stephen, the Roman Catholic
Scliool in St. Andrew, all of which
are recognised by name by the
legislature ir various Acts anterior
to the 21 Vict. c. 9, and received
special annual grants from the
])ublic provincial funds outside the
Parish School Act. In the year
1857, and subsequent thereto, the
money intended for educational
purposes has been annually granted
in a lump sum, namely, so much
' To provide for certain educational
purposes,' not specifying any par-
ticular school or purpose, as had
been theretofore customary. But
the estimates of the public exjiendi-
ture which appeared in the public
journals, show that appro])riations
of a similar character have been
since annually made. Thus, in the
year 1867, but before the 1st July
(the diiy of Union), it will be seen
by the journals of the House of
Assembly, p. 45, that in addition to
the amounts authorized by law, the
following schools, amongst others,
received special grants. [His Lord-
ship read a list containing the
above and one or two others.] And
in the journals for 1871, the year
the Common School Law passed,
are to be found special appropria-
tions for the above schools, so that
it is obvious there were in existence
at the time of the Union, and have
ever been since, in this province,
apart from schools established under
the Parish School Act, denomina-

tional schools, recognised by the
legislature and aided from the
public revenues. But as it is not
contcndi'(l that the Conunon Schools
Law prejudicially affects anv vjclit
or privilege with respect to these
schools, which any person had Ijy
laAV at the Union, it will be neces-
sary to examine minutely and
critically the Parish School Act,
1858, under which it is contended
* Riglits and Privileges ' existed,
which, it is alleged, have been so
affected. [His Lordship road the
Act substantially as given above,
ante, j). 339.] This, then, was
the state of the law relatinc
to parish or common schools
at the time of the passing of the
B. N. A. Act, and continued so
until repealed by the Conunon
Schools Act, 1871 ; and because it
is alleged that rights and privileges
secured uy, or enjoyed under, this
Act have been prejudicially affected
by the Common Schools .\et, it is
contended that the latter Act is
void. 'J'he Parish School Act
clearly contemplated the establish-
ment throughout the province of
the public common schools for
the benefit of the inhabitants
of the province generally, and it
cannot, we think, be disputed
that the governing bodies under
that Act were not in any respect or
particular ' denominational.' The
Board of Education was the Gover-
nor and Council, with a superinten-
dent appointed by them. The
trustees were elected or a[)pointed,
as the case might be, as other parish
officers, and they were put, in other
respects, on precisely the san.e
footing as other parish officers, and
the school committee was eli^cted
by the ratepayers ; and in nothing
pertaining to the organization,
regulation, or government of the
schools had any class of persons or
denomination whatever, as such, the
slightest voice or right of inter-
ference, the Board of Education,ou
behalf of the inhabitants of the
province at large, being responsible
for the general working of the

5.4 . ■ ■

B.N. A. ACT, s. 93 (4).— PUBLIC PARISH SCHOOLS. 349

svstpm, nnd the trustees and school
c'oininitteps hanng the manngement
and (liroction of certain matters
under tlie Board of Education in
the particular localities for which
tliev wtTO respectively elected, but
ffitiiout reference (so far as can be
(Tiitliercil from the statute) in any or
citlu'i' case to class or creed. The
scliools established under this Act
w'fvv tlioii public, parish, or district
schools, not belonging to or under
tiie control of any particular de-
nominiition, neither had any cla.ss
of persons nor any one denomi-
nation, whether Protestant or
Catiiolic, any rights or privileges
in the government or control of
the sc'liools that did not belong to
every other class or denomination, in
fiict to every other inhabitant of the
parish or the district, neither had
unv one class of persons or denomi-
nation, nor any individual, any right
or privilege to have any peculiar r(!-
ligioiis tenets exclusively taught, or
tanght at all, in any such school.
W'iint is there, then, in this Act to
inalccn school established under it a
(knominational, or to give it a
(Icnominiitional character ? A good
di'ai lins been said as to the in-
tention of the Imperial Parlia-
ment in using the words ' denomi-
national schools ' in sub-sec. 1.
There soenis to be no difficulty in
giving a legal construction or de-
tinition to these words if they are
read in their ordinary sense. It is
a v,ell-established canon of con-
struction that an Act is to be con-
strued according to the ordinary
iind grannnatical sense of its lan-
guage, if precise and unambiguous ;
nrl it is likewise a rule, estal)lished
'• Iv' I'.igiiest appellate authority,
■^■'■: fho language of a statute,
'■■in\ in its plain ordinary sense,
'i:id not its policy or supposed
;i!tHition, is the safest guide for
toustruing its enactments. Phil-
l»tt V. St. George's Hospital, 21
Jul.V 1857, 6 H. L. C. 338; 3
J'lr. N. S. 1269, reversing 28
L. J. (Ch.) 657; 27 Beav. 107.
And in the great Sussex Peerage

case, July 9, 1844, 11 C. & F. 85 ;
8 Jur. 793, the judges declared
the hiw to be that if the words of
the Act are of themselves precise
and unambiguous, then no more
can be necessary than to expound
those words in their natural and
ordinary sense, that the words
themselves do in such case best de-
clare the intention of the legislature.
" The 5th paragraph of sec. 8 of
the Parish School Act has lieen very
strongly relied on as establishing a
right in respect to denominational
schools [ante, p. 340]. Under that
paragraph the teacher is most cer-
tainly enjoined to take diligent care
and exert his best endeavours to im-
press on the minds of the children
committed to his care the prin-
ciples of Christianity, morality, &c.,
Ac. As we think it cannot be
denied that the schools under this
Act were to be public parish
schools for the benefit of all the
inhabitants of the parish or district
in wliicii they might be established,
and the pupils attending the 'hools
would necessarily, in a vast m jority
of cases throughout the province,
be children of parents belonging to
different denominations ; can it be
supposed, with any reason, that the
legislature could have intended that
the teacher, who might possibly
himself belong to a persuasion
differing from all his pupils, .should
impress on the minds of his pupils
the principles of Christianity by
instructing each one in the peculiar
doctrines of the denominations of
its parents ? Still less do we think
it could have been intended that
the principles of Christianity to be
impressed should be those of a
denomination to which any of the
pupils did not belong, simply be-
cause they might hapi)en to be
those of a denomination to which
the teacher, or even a large majority
of his pupils, may have belonged.
It seems to us, that in view of the
entire scope, object, and policy
of the Act, the duty imposed on
tlie teacher by the 5th paragraph
of sec. 8, was a duty outside of the

Maiieb V, Town
OP Portland.

Ritchie, C.J.

350 B.N.A. ACT, s. 93 (4).— SECTARIAN TEACHING.

i.^: :

Maii^ v. Town educational teaching of the school
OF PoRTi-AND. (which is specially provided for in
lUtchio, C.J. paragraphs 1 & 2), to he performed
as opportunities occnrrecl, by pre-
cept and example, rather than by
any direct or continuous system of
dogmatic teaching; tliat the prin-
ciples of Christianity, honesty, &c.,
to be impressed were to be prin-
ci|)les of general applicability, inter-
fering with the peculiar religions
views of none — doctrines, precepts,
and practices which all Christian
people hold in common, rather than
the dogmatic teachings or tenets of
a partiodar denomination or sect.
This view would seem to be
strongly confirmed by the last
clause of the 4th paragraph, because
while under the 1st clause of that
paragra[)h the duty referred to is
to be discharged by the teacher in
respect to all the children com-
mitted to his care, Avithout any
exception in favoiu- of any class or
creed, the ])rovisi(m in the last
clause is, ' But no ])ui)il shall be
required to read or study in or
from any religious book, or join in
any act of (lc\ ition objectecl to by
its parents or guardians,' leaving
the duty still on tlie teacher ' to
impress on the minds of the chil-
dren connnitted lo his ci:.e the
general principles of Christianity,
morality, justice, a sacred regard
for truth and honesty,' &c. And
the paragraph ends by providing
that the Board of Education shall
' By regulation secure to all chil-
dren, whose parents or guardians
do not object to it, the reading of
the Bible in parish schools ; and the
Bible, when read in parish schools
by Roman Catholic children, shall,
if required by their parents and
guardians, be the Douay version,
without note or comment.' This
paragraph, so far from making the
schools denominational or giving
any rights or privileges in resj)ect
to a denominational school, appears
to us to be directly oj)posed to the
idea of denominational teaching in
schools. Does not the very last
clause (that most relied on at the

argument), permitting the use of
the Douay version by the addition
of the words 'without note or
comment,' show, that with the Bil)le
read from that version, no de-
nominational views of any kind
shall be put forward ; and is not
the whole in this view entirelv
consistent with the exclusion i'roiii
the school library and from use,
of all works on contro\prsial
theology ? But it has been sjiid
that, under the Parish School
Act, schools were in fact ostab-
lished in certain localities where
all, or a large majority of the rate-
payers, hapi)en to belong to one
particular persuasion, in which the
catechisms of particular churches
were taught, i)rayers peculiai' to a
particular religious body were used,
and books inculcating the doctrines,
views, and practices of a particular
denomination were used as class
books, aiul that these schools were
therefore denominational, and con-
sequently the class of persons be-
lonjjin" to anv such denomination
had a legal right or privilege with
respect to denominational schools.
Assuming what is alleged to have
been the case — though on this point
we have no information before us
of which we can take judicial
notice — surely it is begging the
whole question.

" How can the mere fact, tlmt, in
exceptional cases, certain schools
under the Parish School Act draw-
ing provincial aid may have been
made for the time being, with or
without the knowledge or sanc-
tion of the Board of Education,
denominational by reason of the
teacher instructing the cliihlreu
exclusivcdy in doctrines of a par-
ticular denomination, or using
prayers, or books, or daily
teaching the catechism peculiar to
such denomination, confer any
legal right or privilege on any
class of persons with respect to
denominational schools, or give the
denomination whose tenets may
have been so taught in anv such
schools rights or privileges other

'I t

B.N.A. ACT, R. 93 (4).— SCHOOLS AND THE BIBLE. 351

than those possessed by all and
every the humblest inhabitant of
the parish in which such school
pxistt'il free and independent of all
denominational connection ? It is
not liy wliat the Board of Educa-
tion, superintendent, inspectors, or
trustees, niny have done or allowed
to Ih! (lone under the Act, nor is it
from tli<' mode in which the prin-
ciples of Cliristinnity may have
been iictiially practically tan^^ht in
one or a hundred schools which
niiiy have drawn public money
under tlie Parish School Act, that
the question in a legal point must
1)0 determined ; we must look to
the Inw as it was at the time of the
Union, and by that, and that alone,
be governed. Where, then, do we
lind iiny legal exclusive right or
|)rivilege (conferred on any deno-
mination, to any school established
or that might be established under
tliat Act, or any privilege or right
conferred on any class of persons
to deal with such a school as be-
longing to such persons as a class
or (lenoniination, or as being under
their control as such, or that as a
class they had any right to have
taught therein the peculiar doc-
tiines of their denomination ? The
assumption that the character or
status of the school could be le-
gally altered or affected, or rights
gained by reason of the religious
opinions or feelings of the inhabi-
tants of a district, or a majority of
tiiem, l)eeause in such a case trus-
tees and a school committee might
peiebance be elected from a parti-
cular denionination, and so that
tiien the school might be made
denominational, is in our opinion
entirely erroneous. To the Board
of Education is entrusted the con-
trolling governing power. By
tliose rules and i-egulations, made
and ordained within the letter and
spirit of the Act, must all Acts
under them be controlled and go-
verned, wholly independent of the
religious opinions of the electors
of the district or of the trustees
elected by them. It appears to us,

then, that in passing the Parish Maherd.Town
School Act the legislature con- of PoRTr.AND.
temidated a general system of Ritchie, CJ.
education for the benefit of all the
inhabitants of the province, with-
out reference to class or creed ;
that sn(di schools were to be or-
ganize<l, il'gulated, and governed
by public bodies not owing their
existence to or being in any way
under the control of any class or
denomination ; that the Act made
no provision for any schools es-
tablished thereunder being denomi-
national, and did not provide that
any sect or denomination whatever,
as such, was in any such schools
was to have control or precedence,
nor in any way give or recognise
any right in any class of persons
to have in the schools established
thereunder, the doctrines, precepts,
or tenc s of their denomination
taught as part of the sy.stem of in-
truction, or to have such schools in
any other respect denominational
in their character. That, with re-
ference to religion, the Act simply
recognises the duty of impressing
on the minds of the pupils the
general i)rinciples of Christianity,
honesty, &c., common alike to all
Christians, and simply required to
be secured by regulation ; the
reading of the Bible as the inspired
Woril of God, accepted by all
Chri.'stians as the basis of their
faith, securing always to the Boman
Catholics the use when read by
Roman Catholic children, if re-
quired by their parents, the ver-
sion recognised by their Church,,
but without note or comment, but
at the same time with the greatest
a|)parent caution and scrupulous
care lest the religious principles of
any should be interfered with, pro-
viding that, even with respect to
the inculcating the principles of
Christianity, morality, &c., as in-
dicated, no pupil should be re-
quired to ivad or stir.ly in or from
any religious book, or join in any
act '^f devotion, objected to by his
parents or guardians. And so
(nen with resi)ect to the reading

■Hiij.

I I ! 1 ; ( i ;

111;

M !

■1

352 B.N.A. ACT, 8. 03 (4).— EXAM. OF SUB-SECS. 1, 2, & 3.

Mahkbw.Town of the Bible, it is to be seenred
OK PoKThANU. only to tliouc children wliose
Ritchie, C.J. parents nnd gunrdiaiis do not ob-
ject. If, then, the estidilishnient
of denoniiniitional schools, or the
teiiching ol" denoniiimtionnl doc-
trines, Wiis not recognised or pro-
vided i'cr liy the Act, iind the
Ilomiin (. itholies hud therefore no
legal right;, rs a class to claim any
control over, or to insist that the
doctrine of their C'iiurch shoidd be
tanght in all or any schools under
the Parish School Act, how can
it be said (though, as a nuitter of
fact, such doctrines may have been
taught in nuud)ers of such schools)
that, as a class of persons, they
have been prejudicially affected in
any legal rigiit or privilege with re-
spect to 'denominational schools,'
construing those words in their
ordinary meaning, l)eeause under
the Common Schools Act, 1871, it
is i»rovide(l that the schools shall
be non-sectarian ? But it is con-
tended in this case that the words
'denominational schools' were
not used by the legislature, and
should not be construed by us in
their ordinary grammatical sense
and meaning, but should have
a nnich broader interpretation.
AVhile freely admitting that though
the general rule is that every word
must be iniderstood according to
its legal meaning in construing an
ordinary, as opposed to a penal
enactment, where the context
shows that the legislature has >ised
it in a popular or more enlarged
. sense, courts will so construe the
language used. We are at a loss
to discover anything in the B. IS'. A.
Act, 1867, indicating a legislativie
intention of using the words other-
wise than in their ordinary mean-
ing. It is clear enough that the
reference in sub-s.c. 2 to .separate
and dissentient .schools in Ontario
and Quebec is especially to schools
of Protestants and Catholics ; and
it is, perhaps, equally clear that
sub-sec, 3 applies only to schools
of a like character existing in any
of the four provinces. But we are

at a loss to understand why sub.
.sees. 2 and 3 .should be held to
control or in any way limit or
affect u previous distinct enact-
ment, couched in plain and lumin-
biguous language, and whicli, liy
(piit(^ as clear and uneipiivociil
terms, has relation to all classes nf
persons or denominations, and toiiil
the provinces of the Dominion ; or
why, because separate and dissen-
tient .schools as between Protestants
and Roman Catholics, not only in
Ontario and Quebec but in any pro-
vince in which they may exist at
the Union, or be thereafter estab-
lished, are provided for and pro-
tected, therefore we must necessaiily
infer therefrom that in using the
term 'denominational schools,' in
sub-sec. 1, the legislature inteiidfd
to legislate only as between Eonian
Catholics and Protestants, and then
also as to schools not ne( ssarily
denominational in the ordinary iic-
ceptation of the term. We think
that the term ' denomination,' or
' denominational,' as generally
used, is in its popular sense more
frequently applied to the different
(h'uominatious of Protestants than
to the Church of Home ; and that
the most reasonable inference is
that sub-sec. 1 was intended to
mean just what it expresses, viz. :
that 'any,' that is, 'every,' class
of persons having any rights or
privileges with respect to deno-
minational schools, whether such
class should be one of the nume-
rous denominations of Protestants
or Roman Catholics, should he
protected in such rights. If it had
been intended that the clause
should have been limited in its
apphcation to Roman Catholics
and Protestants only as dissentient
one from the other, and apply to
schools otlier than those usual-
ly understood as denominational
schools, is it not fair to assume
that the legislature would have
used some expression in the sub-
section itself indicating such a par-
ticular sense, especially as we have
seen there were at the Union, in

BN.A. ACT, s. 03 (4).— NON-SECTARIAN SCHOOLS.

3S8

this province ut iiuy rati', strictly
ili'iioininiitioiml schools, both Pro-
ti'stiiiit iind Roman Catholic, to
which such u (•Iniisc would ho ap-
nlictililt' ; iiii'l for the vpit reason
also that when dcalinfj with schools
ii< hctwccn Protestant and Roman
Ciitholic in sub-sccs. 2 and 3, the
liiii?na<jt' confines it to those bodies
icsiK'ctivfly ? But, assuming that
the tcnn ' denominational schools '
is not to lie construed in what has
iiwa called its narrow signification,
ixrliiips the most favourable posi-
tion to assume would 1)e to read
sul)-sec. 1 as inejming substjuitially
that notiiiiig in sneh law shall pre-
jiidicialh- affect any right or privi-
iiffc which any class oi' j)ersous as
i\ (lenoniinatiou liad by law with
ivspei't to schools in the province
lit the Union. Let iis endeavour
to ascertain whether in such a ease
we would he justified in pronounc-
ing the Common Schools Act,
IS'I, nltm vires, and therefore
void. Except in the matter of
compulsory taxation there i.s no very
lIH'nt difference in principle that
we can discover between the Parish
School Act of 1858 and the Com-
mon Schools Act of 1871. The
;;eneral goxernment, superintend-
ence, and control of the schools
are nuder both laws ^•ested in a
Biinrd of Education almost simi-
liirly composed, the only difference
lieinj that to the Governor and
Council and superintendent is added
the president of the university.
Under the latter Act, in fact, the
ixiwer to make regulations for the
organization, government, and dis-
ciphne of the schools, appointment
of examiners, of teachers, and the
power of granting or cancelling
licenses, and of making such regu-
lations as may be necesst\ry to carry
into pfl'eet the Act and generally to
jmvide for any exigencies that
uiiiy arise under its operations, are
piwisely the .same in both [see sec.
M'aragraphs 3 to 10, of the Parish
School Act, and sec. 6, sub-sees. 4
'0 8, of the Common Schools Act,
"n'e.p.p. 339, 342], and the details

S 2340.

are to be carried out by a superin- Maiier v. Town
tendent, inspectors, and trustees, '^^' Portland.
alike substantially, under both Acts ; Ritohio. CI.
and the duties and powers of these
officers do not in principle substan-
tially differ. But therearp,of course,
differences, Those relied on are that
the Common Schools Act has no
enactment similar to sec. 8 of the
Parish School Act ; that the Parish
School Act had no enactment similar
to sec. 58, sub-sec. 12 [nnte,^. o^2],
of the Connnon Schools Act ; ai.d
this section, it is alleged, prohibited
the granting of provincial ai'.l U)
any but schools under the Com-
mon Schools Act ; and tiiat by
the 60th section of the Common
Schools Act all schools condticted
under its provisions shall be non-
sectarian — a provision not to be
foiuid In the Parish School Act.
And it is contended that the omis-
sion in the one case, and the ex-
press enactment in the other, pre-
judicially affects the rights and
privileges which the Roman Catho-
lics as a class of persons and a
denomination, and in the schools
established, or which might have
been established, under the Parish
School Act ; in other words, that
the rights and privileges which
they had under the one, the omis-
sion and the enactments referred
to prevented their claiming or ob-
taining under the other. With
reference to the omission, the
Parish School Act no doubt de-
clares that the Board of Education
shall secure to all children, whose
parents do not object, the reading
of the Bible, and that wlu ii read
by the Roman Catholic children, if
required by their parents, it shall
be in the Douay veision without
note or comment. Here we have
expressly directed to be secured to
all children what many persons no
doubt consider a great right and
privilege, and the Roman Catholic
parents have a great right secured
to them, namely, to have, if they
require it, a particular version of
the Bible read. As to the reasons
why a similar provision securing

854 B.N.A. ACT, s. 93 (4)— BIBLE PBIVILEQES.

MAiiKn V. Town

or PORTI.ANII.

Ritchie, C.J.

M ' I

I,'-

F I

ii:-i

fliOfW' important liglits, in wliifli
tlio ProlcstiviitH ami Catliolics wcif
liotii intcrcstctl, was cxrliulcd Iroiii
tlie Conunoii Hfliools Act, it is lutt
our buHincHs to iiiqu'' . Wiiat we
Imvt* to (Ictcrniini' -i, does lliis
omission make tiu' law void it' in
other respects unobjectionnMe?
We think uci. II' iliis was a rif^ht
or privilfffe which existed at tho
Union, the le<;iHlatnro certainly
have not protected it l.y ;iii cvnrPHs
enactment. Bui is the ri<;ht tal en
av/ay ? >I;;y it not still evi-f, pro-
vided alwrys it is a ri},'ht wliich
legitimatel" comes under sub-sec.
l,see. 9,'}? Because that .section
declares that notl'iii;^' in any such
law shall prejudicially affect any
such rifjht ; and, in such case,
readinfj thn common school law by
the lif^ht of this s«'ction, woidd it
not bo the duty of the JJoard of
Education under the Common
Schools Act, instead of makinf»
regulation 21 declaring as fol-
lows : — ' That it shall be the
privilege of every teacher to open
and close the daily exerci.ses of the
school by reading a portion of
scripture (out of tho connnon or
Douay version, as ho may prefer),
and by offering the Lord's [)rayer
— any other prayer may be used by
permission of the Board of Trus-
tees— but no teacher may compel
any pupil to be present at those
exercises, against tho wishes of his
parents or guardians, expressed in
writing to the Board of Trustees,'
to secure by regulation just what
the Board of Education were
bound to secure un<ler the Parish
School Act, 1 H58, that is, to make
just such a regulation as tlie Parish
School Act required to be made ?
We have seen they have prcci.sely
the same, and only the same, powers
to make regulations as the Board
had under the Parish School
Act. By this simple means the
rights of all the children and
their parents in the province, as
well Protestant as Boman Catho-
lic, which existed at the Union,
would be preserved, and all just

cause of complaint on this licad
removed. Why the lioard of Kihi-
cation should have departed I'roiii
tlu! |iriuciple and policy of the
Parish School Act and taken Irinii
the parents of all the ehilili'in in
the country, Protcs'ants and Ca-
tholics alike, the great boon and
privilege of insisting on the llihlc
being read in .schools as tliev Imvc
done, and shoidd have conferred on
the teacher not only the piivili;;!'
of reading the BibU- or not, ns he
likes, but out of the eonundn nr
Douay Nci'sion, not as the eliildicn
or their j>arents nuiy choose, Init
as tlu' teacher may prefer, IImiu^'Ii
h(! cannot comiiel tho atlemliuici'
of the pupils, is not for us t') at-
tempt to explain ; wo simply pdint
out tho fad. But if the liglit
secured by the Parish Schools Act
is |)rotecto(l by tho B. N. A. Act,
wv fail to see, because tiie Bdunl
of Education may not have luiulc
such a rognlotion as they ought in
such a case to have made, or have
made a regulation they ought not
to have made, that the action of
tho Board, or its non-act i(m, can
render the Act of the h'gislature in-
operative, ir the right and privi-
lege! fall under sec. 93, and il' tlicrc
is no power to compel the Hoard
of Education to makt* such a regu-
lation, or tho legislature tiiiould
have inserted a clause in thi^ t'oni-
mon Schools Act requiring tlicin
to do it, is not this ju.st such a
case where sub-sec. 4, sec. 9,3 of
tho B. N. A. Act applies? [Heads
sub-sec. 4.] In this connection
we may refer also to the 20tli re-
gulation, which, it has been con-
tended, prejudicially affects the
rights and privileges which tlie
lloman Catholics had under the
Parish School Act. This regula-
tion declares that 'Symbols or
emblems distinctive of any national
or other society, political party or
religious organization, shall not be
exhibited or employed in the
schoolroom, either in its general
arrangement or exercise, or on the
person of any teacher or pupil.'

BN.A. ACT, H. 98 (4).— WHAT LEGAL RIGHT. 365

It may l'** •'m' 'l'^ nonnl of Edii-
ciitiim liiivo (lisrcj^iirilt'il tlm general
iiolicy of tlui t'oiiimoii Si'liools Act,
1111(1 iiiti'H't'i'ed with tlie rij^lits of
teiu'lu'i'.x, parents, and cliildrei-, in
ixc'liidiii^' I'ntin the seliools uMko
tem'lici's and pnpils who nniy ex-
liihit on tiifir |)(U"Hon, in (h'ess or
orniiinciit, s_vndK)ls or enddeuis dis-
tinctive of any initional or other
society, political party or religious
nijpiiii/.ation ; for however clear
tiii'rifjlit of tlie Hoard of Education
iiiuv lie to niakt^ regulations neces-
siiry for tiie f^ood government and
liiH'ipline of the schools, to make
niliitniry restrictivo regulations as
In the dress or personal adornment
(if the teaeliersand pupils, or which
aivcaicidated unnecessarily to intor-
feic witli tlieir feelings, national,
sociiil, religious, in matters not
calcuhited to give any such cause
(if (iH'eiiee to others, or to interfere
with {;ood order in the schools, is
([iiite another question. And while
it is by no means clear to us that
any power exists in the Board of
Education under the Common
Schools Act hy regulation, to de-
IH'ive teiiehers, parents, and chil-
dren of their i-ight of access to the
tree schools of the country to the
support of which they and all
others are forced to contribute
uidcss they sulmiit to such regula-
tions, and though the assumption
of such a power of practical expul-
sion by the Board of Education
raises a question involving im-
portant and delicate rights — rights
wiiich in this laud of civil and re-
ligious freedom few may be will-
ing to see infringed — or, at any
iiite, raising discussions which
uuist 1)0 impleasaut to those en-
giiged in them, and calculated to
result iu cousequeaces which can
scarcely fail to produce acrimoni-
ous f(jeliugs, and in the end be
iujurious to the cause of free educa-
tion, which, we must presume, the
leguiution objected to <^as intended
to further ; all we can say is, as
the case stands, the regulations
"re not before us in such a way

that we can deal with them, and Mahrbw.Towm
therefore we are not called upon "*' Po'itlank.
to express any decided opinion as Ritchie, C.J.
to their validity, because! the con-
stitutionality of the Act cannot, in
our opinion, bo alTectcMl by any re-
gulation made under it, there b(»ing
nothing unconstitutional in the
Act itself that we can discover.
The second objection is ejisily an-
swered. The provision in sec. 58,
sub-sec. 12, of the Common Schools
Act, declaring that no public funds
shall be granted, would seem to
apply to the schools particularly
referred to in the preceding part
of that section, and not to all
schools. But if it was intended
to apply generally to all schools,
as [the counsel for Maher] Mr.
Dun's argument assumes, what
does it amount to ? It cannot take
from the legislature the right to
make such grants. Thus we see
in the estimates of the year 1872
grants were recommended by the
Lieutenant-Governor, and no doubt
nuide, for all the denominational
schools befoic! specified referred to
[*ee Journal of House of As-
sembly, p. 124] ; and if such
clause was itltra vires, and we de-
chired it void, cui bono, it would
not affect the other parts of the
Act ; and what wouUl practiwdly be
attained ? The legislature could,
whether the clause stands or is
declared void, do just as it pleases
about granting or withholding the
public funds. But it was contend-
ed sec. 60, declaring 'That all
schools conducted under the pro-
visions of this Act shall be non-
sectJirian,' prejudically affects the
rights and privileges which the
Roman Catholics as a class had in
the parish schools at the time of the
Union. It cannot be denied that
to the provincial legislature is con-
fided the exclusive right of making
laws in relation to education, and
that they, and they only, have the
t ijtht to establish a general system of
'-ducrtion applicable to the whole
: -IT ince and all classes of denomina-
tion^, provided always they have due

z 2

(in

356

B.N.A. ACT, 8. 93 (4).—" LEGAL RIGHTS.'

Maher f. Town regard to the rights and privileges
OF PoKTLAND. prot^^cted by sec. 93 of the B. N . A.
Ritchie, C.J. Act, 1867. Now what in this case
is the right or privilege claimed to
have been prejndically affected ?
Is it a legal right that could have
lieeu put forward and enforced by
the Roman Catholics as a class
under all circumstances, and in
every parish or common school, or
is it a legal right confined to the
Roman Catholics as a l)ody, or does
it belong equally to all and every of
the other denominations of Chris-
tians in this province, and capable by
them of enforcement ; or, on the con-
trary, was it not the mere possible
chance of having religious denomi-
national teaching in certain schools,
depending entirely on accidental
circumstances, or on what might
happen to lie the religious views of
a majority in a parish, and then on
the accidental result of the election
of the trustees and school com-
mittee, and on the views of the
parties so elected as to religious
denominational teaching and their
willingness to jiermit it in the
schools (admitting that the trustees
or committee had any discretion
in the matter, which perhaps is
more than doubtful) ; was it not
also dependent on the Board of
Edtication, who had the general
controlling power ? If dei)endent
on circumstances such u,:, these,
how can it be considered such a
legal right as could ha\ e l)een con-
templated by the Imperial Parlia-
ment in passing the 93r(l section
of the B. N. A. Act, 1867 ? Where
is there anything that can with
any propriety be termed a legal
right ? Surely the legislature
must have intended to deal with
legal rights and privileges? How
is it to be define(l — how enforced ?
It by no means follows as a neces-
sary legal consequence, that because
a majority of the inhabitants of a
parish or school district may be-
long to a particular persuasion tiiey
would necessiuily vote for trustees
favourable to denominational teacli-
ing, nor could they I'c compalled

by any legal process so to vote,
nor does it follow that trustees,
when ekcted even by a majority of
onedenouiination, would neeessiirilv
prove favourable to denominatiomil
teaching ; and by what legal pro.
cess could they be constrained to
assent to its introduction in tlic
schools? And again, suppose uji
to this point all were favouniblo,
might not the whole scheme be
ignored by the Board of Edueation,
and how then could any class of
liersons as such, no matter to what
denomination they may belong,
claim of right to control oi- direct
the acts or doings of any of these
parties; or how could electors,
trustees, school committees, or the
Board of Education, be comiiellcd
to make any school in any sciiso
denominational, or, in other words,
to confer on any such class do-
nominational rights ? Surely the
rights contemplateil miist have
been legal rights, in other words,
rights secured by law, or which
they had under the law at the
time of the Union. If any such
existed, they must have been cii-
pable of lieing clearly and legally
defined, and there must ha\e ex-
isted legal means for their enforce-
ment or legal remedies for their
infringement, for it is a dear
maxim of law that tibi jus, ibi
remedittm. It was said long ago
in a celebrated case, that if a niaii
has a right he must have .i means
to vindicate and maintain it, and a
remedy if he is aggrieved in the
exercise and enjoyment of it ; and
that it was indeed a vain thing to
imagine a right without a remedy,
for want of right and want of
remedy are reciprocal. \f\\ai pos-
.sible legal means could any denomi-
nation ha\e invoked under the old
Parish School Act, to comjiel any
one school to l)e made denomina-
tional, or to require and insist that
in any one school denominational
tenets, doctrines, precepts, or prac-
tices should be taught or tised?
But then it was repeatedly urged
upon us that under the Parish

h!^

B.X.A. ACT, s. 93 (4).— DEXOMINATIONAL RIGHT. 367

- ■■{■■ -i,

Scliool Aft circumstances might,
anil voiT often did, concur wlu'ic
the schools might, and in numerous
ciisos dill, become denominational ;
l)iit that by reason of s€'c. 60 of
tlie Common Schools Act such was
not now possible. The answer is
simply this : — The inability of a
I'liiss of iK'isons to ha\ e under the
Couuiion Schools Act that which
possiihly they might, under certain
except ii>nal and accidental circuui-
stmices, hasH' liad under the Parish
Seliool Act of 1858, but which
thev had no right to insist on
Imving, is r, damage not occasioned
1,1 iu.ything which the law esteems
an injury — a kind of damage
teiiueil iu law damiinm absque

injuria,

and for Avhich ihere is

no remedy. And so in this case, as
tiiero was no legal right to have
ilenouiinational schools or denomi-
imtioiif'.l teaching, there is no injiu'y
in legal contemplation co'aimitted
by the legislature dealing with the
iiuestion in such a manner as to
prevent the possibility arising, and
e( • sequently no right to have the
iictiou of the legislature abrogated.
It ui.iy be a very great hardship
that a large class of persons should
he forced to contribute to the
siiiiport of the schools to which
tiiey are conscientiously opposed,
01' to be shut out from what they
Imve hitherto under certain circum-
stances enjoyed, and be without
ii'iuedy, but by any such cousulera-
tions courts of justice ought not to
1» influenced. ' Hartl cases, it has
luen repeatedly sjud, are apt to
make bad law, and it has also been
justly remarked that if there is a
jrineral hardship affecting a general
elass of cases or persons, it is a
consideration for the legislaturt,
uot for a court of justice."

Fisher, J. : "I concur in the
jmlgment of my brethren as to the
I'onstitutionality of the Common
hIiooIs Act, 1871, but as there are
some sentiments in it in which
I don't agree, I have thought in
a uuitter of so much delicacy and
impor^auce it was better to read

the judgment which I had written Maheru. Towk
than to attempt to qualify opi- ^^ Poktland.
nions which my brethren have I'lJ^her, J.
so fully considered The right
to impose this assessment is ob-
jected to on the ground that it in-
cludes a sum for the support of
schools under the authority of the
Act rehiting to common schools,
34 Vict. c. 21., which it is con-
tended is unconstitutional, that the
legislature have no power to pass it
because it contravenes the exception
in the Act of Union. [His Lord-
ship read the 93rd section and its
sub-section.] The exclusive power
of legislating upon the subject of
education is thus conferred upon
the legislature of each province,
subject to the reser\ation of the
right of any class of persons with
respect to denominatioiud .schools.
Everyone acquainted with the his-
tory of the province which comprised
Canada before the Union, knows
the reason for the insertion of
some of the provisions of this
section. It was found to be the
only mode of solving a (juestiou
that had caused serious difficulty
with the Government and legisla-
tui'e of that province. Paragraphs
2 and 3 were constructed to solve
and settle these difficulties, and at
present only apply to that province
no^\ consisting of Ontario and
Quebec, where schools were iu
operation at the Union answering
the descP'^Mon given them iu
these paragraphs. Whether the
4ih paragraph applies to any other
I'lW than such as is referred to iu
the 3rd paragraph it is not necessary
to consider, as the constitutionality
of the Common School Act depends
entirely upon the meaning of the
1st paragraph. The simple question
for solution is, <loes the Common
Schools Act, 1871, prejudicially
affect any ' right or juivilege with
respect to denominational schools,'
which any class of persons had by
law in the province at the time of
the Union ? It is not merely a
right or privilege. A denomina-
tional right or privilege of itself, if

:■!

1 ' I -a

358 B.N. A. ACT, s. 93 (4).— MUST BE NON-SECTABIAN.

Maiibb v. Tows
OF Portland.

Fisher, J.

I1|:vi!'

!',!

any such exist, would not alone
make the Common Schools Act
unconstitutional. It must be a
* right or privilege with respect to a
denominational school, which a class
of persons had by law at the Union,'
which is prejudicially afEected by
this Act to render it unconstitu-
tional. It appears to me that the
first inquiry is — What is a * denomi-
national school ' ? In my opinion
it is a school under the exclusive
government of some one denomina-
tion of Christians, and where the
tenets of that denomination are
taught. But asstmie that a school
answering either of these recjuisites
is a denominational school, and this
is the lowest ground upon which it
can be put, and then examine the
laws in force at the time of tiie
Union to ascertain if any such
school then existed by law, and if
the right of any class of persons
therein has been prejudicially af-
fected by the Common Schools
Act. There were denominational
schools in existence at the Union,
such as the Varley School in St.
John, the Sackville Academy, the
Madras School, and the like, but
they are not touched by the Com-
mon Schools Act — they remain in
the enjoyment of all the rights they
had at the Union. The Act 20 Vict.
c. 9., intituled ' An Act relating to
Parish Schools,' with some unim-
portant amendments not affecting
the present question, was in force
at the Union. As it has been super-
seded by the Common Schools Act,
1871, which is objected to, we must
refer to its provisions to ascertain
whether it authorized any denomi-
national .school, for if it did not,
then the Act under consideration
has not in any of its provisions pre-
judicially affected any right or
privilege any class of persons en-
joyed at the Union. The very title
of the Act proclaims its unsectarian
character as fully, to my mind, as
the positive enactment in the Act of
1871 that the schools conducted
under its provisions should be non-
sectarian — a useless provision in an

Act which alone provided for tlio
establishment of such schools.
Parish schools, that is schools In
and for every parish in the pro-
vince, according to the practinil
division of the province into coun-
ties, town.s, and parishes, distributpd
and sustained by public, and ac-
cording to the population and ex.
tent of each parish, the number
and the clas.ses of the schools uni.st
in the very nature of things lie
other than denominational. I will
now refer to the provisions of tlip
Act, and see if there is any autlioiity
for the establishment of a denomi-
national school under it, or iiiiy
countenance in the Act for such n
.school. The Governor in Council
appoints the superintendent of
schools, who, with the Governor
and three members of the Executive
Council, constitutes the Board of
Education. The inspection of tlie
schools is done altogether by polit ical
agency. The Governor in Council is
authorized to divide the province in-
to 245 districts, and appoint one in-
spector for each district. The Board
of Education, a purely political body,
makes rules and regulations for the
organization and government of the
schools, and such other regulations
as may be deemed necessary to carry
the Act into effect. There was no
restriction whatever upon the power
of the Board in this respect. The
Board regulates the mode of licen-
sing, examining, classifying, and
paying the teachers, and prescrilws
the duties of the inspectors. The
superintendent, a political officer,
has the general direction and super-
vision of the schools, subject to the
order of the Board. Each parish
was to be divided into school dis-
tricts, by three trustees annnally
elected by the ratepayers,' at the
same time and in the same manner
as other town or parish officers
were elected, and subject to the same
penalties and disabilities, with the
same provision for appointing them
in case of failure in the election.
They employ the teachers, and may
dismiss them, subject to an api)eal

I "JV^'iy.wp ■

B.N.A. ACT, .«. 93 (1).— ANTI-DENOMINATIONAL. 359

to the Board of Education. Tliey
are to exiiniiiie the schools and ap-
portion tlic money raised hy assess-
ment when so raised amongst the
different schools. Eaeli school was
iiuder the immediate supervision of
a seiiool committee, elected annually
by the ratepayers of the district.
'I'liey weri' empowered to admit
Free .scholai's and children of poor
piucnts at a reduceil rate. 'J'lic law
alw provided for a superior school
in each parish, thus also supplying
the moans for higher education.
The teachers, both male and female,
were divided into three ela.s.se.s, with
an api)ropriate allowance to each
class from tlie pro\iucial trejisury,
and with duties as to the subjects
taught jirescribed in the Act for
each class. It provideil for a school
lihrary. [See for this jnirt of the
judgment the opinion of James,
U.,posf, p. 366.] What .sort of
denominational school would that
be where the master would not be
aided in his dogmatic tejiching by
tlie writings of men of his own
faith ? When a tlenominational
school is established, how strictly
tliis is provided for. 'Jake any of the
statutes on our Statute Book and
examine its provisions. I will
refer to the incorporation of the
trustees of the AVesleyan Academy
at Jlount Allison, Sackville,
12 Vict. c. 65. [His Lordship
lead the 11th section, given in
C'liicf Justice Ritchie's opinion.]
Taitc the charter of the Madras
School, or any other Act, and the
same strict provision for dogmatic
teaching is made. I pass by the
eoileges which were referred to by
tlie counsel on the argument for
this rule as not material to the iu-
qiiiry, if they are within the category
contended for. I can hardly ima-
gine .my stronger illustration of the
principle that iwrvailes the whole
Act relating to parish schools than
the language of the 8th paragraph
"1 the 4th section, which thus
restrains the large legishitive power
of the Board of Education : ' To pro-
vide for the establishment, reguhi-

tion, and government of school Maker w. Town
libraries ami the selection of books ^^ Poiitland.
to be used therein, but no book of a I'isher, J.
licentious, vicious, or immoral ten-
dency, or hostile to the Christian
religion, or works on controversial
theology, shall be admitted.' It ha.s
been urged that the 6th paragraph of
sec. 8 countenanced denominational
teaching. I think no one can read
that section and fail to discern that it
enacts the very contrary. [His Lord-
ship read it as given above, p. 340.]
Surely it cannot be disputed that
this can be done without any tle-
nominational teaching, or, in the
language of the statute, without
entering upon controversial theo-
logy. Thert; are certain great
fundamental i)rinciples of Christian-
ity cominon to all that may be en-
forced without trenching upon de-
bateable ground. Take the Sermon
on the Mount, or any of the lessons
of the Great Teacher himself for ex-
ample. To avoid any abuse of this
duty or privilege of the teacher in
the parish schools, the legislatun;
proceeds finther to enact, ' but no
[)upil shall be required to read or
study in or from any religious book
or join in any act of devotion ob-
jected to by his parents or guar-
dians.' Here is a positive enactment
against denominational teaching.
Knowing it to be possible for a dt;-
signing teacher, under colour of the
authority to impress upon the minds
of the children the principles of
Christianity and all other virtues,
stealthily to teach doctrines of a
(U'nominational or sectarian charac-
ter, and to protect the chilil from
the influence of such teaching,
the parents are empowered to
interfere and withdraw the child
from any such teaching or from
joining in any act of devotion hav-
ing such a tendency. The paragraph
then proceeds, ' and the Board of
Education shall by reguktion se-
cure to all children, whose piu'ents
or guardians do not object to it, the
reading of the Bible in parish
schools.' What is there deuomina-
tional in thus inculcating the priu-

i ;

360 B.N. A. ACT, s. 93 (4).— BIBLE "WITHOUT NOTE.'

Mahfbv.Town eiph'sof Clnistianity ami all other

OF PonXtAND. ^.jj.j,jp^ ^yjjjplj ,j,.p ^,jp o,.,j,„H,,„,j, of

Fisher, J. human society ? Wliat better mode

could l>c adopted than by reading
l)ortions of the Bible ? It certainly
is not a 'denominational book.' It
is the common standard of faith
and practice to all Christians, to it
they all ap^x-al. Where arc such
ennobling tiioughts as in the Bible ?
It is said to be an historical fact,
that when the (juestion of rea<ling
the BibU' in the common schools of
one of the cities on this continent
was debated the Jews voted for it, on
the giound that it was well adapt-
ed to the instruction of children,
because of the sublime principles of
morality it contained. Though the
Bible is regarded as the great charter
of our silvation, as the revelation of
the will of God to man, eminent
divines in one branch of the Churcli
Catholic object that some words,
some exi)ressions, and some sen-
tences, are incorrectly rendered in
our ordinary English version, and
recognise another version as being
a more correct interpretiition of
such wordf', expressions, and sen-
tences. The legislature, with the
same object of preventing any de-
nominational rights, enacts, 'And
the Bible, when read in parish
schools by Roman Catholic children,
shall, if reqnire<l by their parents
or guardians, be the Douay version,
without note or comment ' ; the
very words, ' without note or com-
ment,' of themselves are signifiwmt
proofs of the intention of the legis-
lature. A.ssuming that the Bible is
a denominational book — and I can-
not think anyone will .seriously con-
tend that it i.s — and that this pro-
vision created a right, a denomina-
tional right if you plejise, that will
not help the ultra vires argument,
because if it were so it is a right
or privilege which a class of persons
had by law at the Union, to hav<?
the Bible read in a parish school,
not in a denominational .school, and
that is not a right secured by the
B. N. A. Act, even if it existed.
1 have endeavoured to ascertain

the true construction of the Act

relating to parish schools

IIS tlic

only Act affecting the question. I
include the amendments which me
not important. Every otlitr Ad
which confers upon any denoinina-
tiou a right or privilege with icspcit
to denominational schools is li'ft
unrepealed, so that no right w
privilege enjoyed by any class of
persons under any such Act is \nv-
judicially or in any way afEecte(l liv
the Act under consideration. Tho
Act 34 Vict. c. 21., intituled 'An
Act relating to Connnon Schools,'
is substantially the same as the Act
of 1858, relating to pari.sh schools.
The Board of Education is the
same, with the addition of tlie
president of the university. It has
the same large powers. The duties
of the superintendent are the same.
The number of inspectors is. in-
creased, with smaller ilistricts for
each, but with duties very siniilar
to what they discharge under the
old law. The trustees are aji-
l)ointed in the same manner as
under the old law, and discharge
much the same duties, inchuliiig
the duties of the school conniiittee.
The teachers are classified aud paid
as in the old law. Superior schools
arc provided for, and libraries,
upon the siime principle. The
only rciil difference that I can
discover ari.ses from the different
modes of supporting the school.
Under the Act of 1871, the i-or-
tion of this support furnished hy
the inhabitants is raised by assess-
ment ; and in the machinery and
provisions necessary for working
this out, and the different modes of
paying and supporting the scliools
that it involves, is the only diffe-
rence. In other respects this Act
provides for the attainment of the
same object by the same means.
It is said that there is no provision
requiring the reading of the Bible
in the schools. The Board of Edu-
cation may, by regulation, provide
for it, as in the Act relating to
parish schools. If it were other-
wise, it would ? . help the ultra

B.N,A. ACT, s. 93 (4).— ACT AND REGULATIONS. 361

(jw urgiiment unless the schools
could be shown to be deuoinina-
tioiial. Upon the arguuieut it was
conteuiifd that some of the regu-
lations interfered with the rights
of !i class of persons. 1 confess 1
am uiial)le to discover the bearing
of that argument upon the ciues-
tiou. How, if the law were good, a
liad regulation — if such there was
— would affect it ? Assume that this
contention is correct, and that it
[H'ejudicially affects the right that
a class of persons had at the Union,
such a right, if it existed, is not
saved bv the B. X. A. Act, because
it would be a right or privilege
with respect to a parish school anil
not a denominational school. I
cannot discover that the regula-
tions have auytliing to do with the
question of the power of the legis-
lature to pass the Act, or can form
any guide in the interpretation of it.
It appears to me that under either
of the Acts of 1858 or 1871 it was
coni|)eteut for the Board of Edu-
I'atiou to make any of the regula-
tions referreil to ; whether they ex-
ercised their powers wisely or uu-
wisely under the Act of 1871 is
another ipiestion. The propriety
of the regulation objected to is a
([uestion of public policy, upon
which I am not called upon to ex-
press an opinion. I may. as an in-
dividual, entertain a very strong
opinion as to its policy. As a
judge, all I feel called upon to
do is to consiiler its legality, anil
lor myself, on that point, I en-
tertain no doubt. I am, therefore,
of opinion the rule should be re-
fused."

Wetmore, J. : « While fully con-
curring in the opinion of my learned
l)i-ethren us to the constitutionality
of the Common Schools Act, 1871,
I do not wish to be understood as
cxpress'.ng a participation in any
doubt whatever as to the regula-
tions of the Board of Education.
I think the only question properly
hefore the Court is as to the Act
itself and not as to the regulations.
Wc a;v only called upon to decide
whether or no the Schools Act, or

any part of it, is nltra vires, and Maiier i-. Tows
upon the decision the order for "■" Portland.
assessment, to set aside which the Wcimorc, J.
application is made, is to be affected.
If the Act itself is not ultra vires,
I do not see how the promulgation
of any regulation, even supposing
it to be one which the School Act
would not warrant to be in vio-
hitiou of the provisions of .sec. !),'?,
sub-sec. l,of the B. N. A. Act, can
affect the ease auy more than asses-
sors acting in violation of the law
under which an assessment is im-
posed, would affect the law autho-
rizing the assessment. In such a
ctise, if the assessment is impo.sed
in a manner not warranted by law,
parties aggrieved woidtl have their
remedy for obtaining relief; and
so, with reference to a regulation
sought to be established by the
Board of Education, if that body
should exceed the power given by
hiw in sue' ise, the regulation
would not have the support of law
to uphold it and therefore could
not be maintaiuetl, but the law
would remain in full force. The
application to this Court is simply
to set aside the order for assessment
in consequence of the invalidity of
the law ; it does not touch upon the
regulations, aiul though they have
been referred to by counsel in the
argument, it does not seem to me
they are before us in such a way as
to call for a decision, or the expres-
sion of an opinion upon any one of
them. Imleed, I do not see that a
most positive and direct expression
by the Court as to the legality or
illegality of any of the regulations,
would in the slightest degree affect
the consti. itionality or unconsti-
tutionality of the hiw ; and I, there-
fore, purposely abstain from ex-
pressing my opinion upon any one
of the regulations. Should a ques-
tion arise respecting the regulations,
or should a ileeision upon them be
necessiU'y for any other matter be-
fore the Court, then, of course, I
would be required to express my
opinion ; until it does arise I de-
cline doing so ; to use an expression
of Cockburu, C.J., iu Bimini v.

-i

362 B N.A. ACT, s. 93 (4).— SCHOOL RATE GOOD.

Maher V, Town
OF Portland.

Comments of
Mellish, James
L.J., Sir M.
E. Smith, and
Sir R. Collier.

i;,|

Van Pniagli, L. 11. 8 Q. B. 4."
Rule refused.

On 20 June 1873 leave to api)eal
to Her Majesty in Privy Council
was given by the S. C.

In tlie Privy Council, 17 Jtily
1874, Joseph Brown, Q.C., and
Mr. Duff, of the Canadian Bar,
were heard for the a|ipellant, a rate-
])ayer of the town of Portland.
(Instructed by Messrs. Linklater
&Co.)

Sir J. B. Karslake, Q.C., and
King, Q.C. (Att.-Gen. for New
Brunswick), and Cowie, Q.C, were
for the respondents (instructed by
Messrs. Bircbani & Co., 4G Par-
liament Street, London). Joseph
Brown, Q.C. : "The whole point is
whether the Act of 1871 is void as
being unconstitutional. A prelimi-
nary [)oiut is taken against us that
we ought to have obtained special
leave to appeal, and that the S. C.
N. B. had no power to give us leave.
[Cowie, Q.C. : It is eonsidereil so
desirable by the town of Portland
that the genei-al question should be
heard that I shall not insist on any
technical point. James, L.J. : That
is quite right ; this Court would
give special leave. Sir J. W.
Colvile: There was a case the
other day where we made a spe-
cial order, but we laid down the
principle that when these objec-
tions, which ought to have been
taken long before the case is called
on, are made at the hearing of the
appeal that we shall refuse the appli-
cation of the party who took the ex-
ception with co.sts.] The case
actually includes the whole rate,
§12,000, and therefore is of much
more than the appealable amount.
Sec. 93 says : ' In each province
the legislature may exclusively.'
That may mean exclusively of the
DominioQ Parliament. [Mellish,
I'. J. : It is exclusively of the
General Legislature.] When the
Earl of Carnarvon introduced the
B. N. A. Bill— [James, L.J. : We
shall not be influenced by anything
then said. Sir M. Smith : The
way in which the Public Worship
Bill was introduced led me to

think it was a different Bill from
what it turns out to be.] The lii>t
cpu'.stion is. What is meant by ' do-
nominational ' .schools ? S 'condly,
Whether the Act of 1871 pivjiidil
cially affected any right or ])ri\i.
lege with respect to denoniiniitionai
schools which the Roman Ciilliolics
had by law in the province at flip
time of the Union, and the rate
being made alike on Roman Catho-
lics and Protestants, and the foniUT
being deprived of the application
of any portion of the funds raised,
to denominational .schools which
were the privileges they enjoyed at
the time of the Act of Union,
[Mellish, L.J. : Do you nieiin to
,siy they could not i)ass an Aet
creating common schools and mak-
ing a rate ? If they have inter-
fered with your schools, so much
as interferes with denominational
schools will be void, but the rest
creating common schools and mak-
ing a rate will be perfectly good.
James, L.J. : Have you any lef;ai
vested right in them ? What ri^iit
was then existing had this Act not
passed ?] The right was gi\en by
the Parish Schools Act, IHoS. By
that Act they could give funds, and
did, to the denominational schools,
and we are deprived of that. The
Ronum Catholics are compelled to
[)ay taxation for the support of
schools where it is lu'ohibited to
give that religious instruction to
their children which they had u
right to uiuUt the previous Parish
Schools Act. Now, a denoaii-
national school is a school iu
which the religious branch of the
teaching represents the tenets of
some religious body. [Sir K.
Collier : ' Denominational ' is n
term of recent introduction in a
great measure (the English School
Act, 1870, 33 & 34 Vict. c. 75.).
It is not found in Johnson's Dic-
tionary, nor the edition by Todd,
1827. But in Webster, of 18GI,
it is described * a class, a sect, par-
ticularly of Christians,' citing
* philosophy dividing it into sects
and denominations,' Southey. Then
be gives ' deuominationul' us re-

B.N.A. ACT, s. 93 (i.)— APPROPRIATE TERMS.

363

lating to denominations or sects of
religion. Latham, 18G5, ' denomi-
imtion ' as nieiining ' seet, class, or
division, especially of Christians.'
[James, hJ. : a ' denominational
s.'liool must e.v vi termini mean a
school est4il)lished by and cxchi-
sivt'ly lielongin;; to ii [)articular ile-
iiomiiiiilioii. There might be a
(k'uoiniiiiitional school for Mahom-
uiedaiis or I'arsees. Mellish, L.J. :
A sebool where the peculiar tenets
of a particular sect are t^iught, and
the tenets of no other sect are
taiiglit, because if you allow all
sods to come at their own hours
and toacli their own tenets that
would not mnke it a denomina-
tional school.] It means a school
where the religious teaching is that
of a particular denomination. It
is used in the same sense in C. S. L.
C. c. 15. s. 103. Now, the schools
existing in New Brunswick at the
time of the Union were governed
In the Pari.sh Schools Act, 2 1 Vict.
c." 9. [reads the Act]. [Mellish,
L.J.: Has each school a district of
its own, or might the parish say we
will have one Ronuin Catholic
school, one episcopal school, and
two schools of other tlenominations
in our parish ?] 1 should think so.
They are to divide their parishes
into oonveuient school districts, and
may have one school or several in
a district. [Mellish, L.J. : They
sjiy school-house ; that rather looks
as if there Avere not to be two
schools in one district. [Mr. Brown
muls ,sec. 8 of the Parish School
Act.] James, L.J. : I should have
tlioaglit if I wanted terms to express
schools which are not denouiina-
tional I should have chosen such
terms as are in clause 8. Sir M.
Smith ! Surely this is a jmrish school
in which there may be all denomi-
nations— those who do not read the
Bible at all ; those who read the
Bible in its entirety ; and tiiose
who rend only the Douay version.]
In eei'tain parts of the province
|lie Roman Catholics form the ma-
jority, in other districts the Pro-
testants are in the »scendancy, and
in others these are equal. The re-

thcir Lonl(<hips
in P. C.

suit was, in the Roman Catholic Maherw.Town
districts, the schools were twught of Portland.
by Roman Catholic teachers, and £°™°;°"*? °f
the Douay version of the Bible was
read to the children, the acts of de-
votion and the catechism were Ro-
man Catholic. The intention of
the Act of Parliament of 1858 was
that where the whole or the greater
majority of the inhabitants were
Roman Catholic's the schools should
be Roman Catholic, the teaching
being Roman Catholic. [Mellish,
L.J. : If this is .so, if the parish
changed, and tla^ Protesbuits l)e-
came the majority, they unist elect
a different body of trustees and
change everything.] No doubt,
if there was a district vacated by
the Roman Catholics and taken
possession of by the Protestants, it
is impossible to deny that such was
the intention of the Act of Parlia-
ment. The provincial legislature
ha\ iug in view the variety of opi-
nion which prevailed, the intention
was where you get a mixed popula-
tion there should be amixed religious
teaching, or if the parents object to
it, probably none ; but where you
get a Roman Catholic population,
you should have Roman Catholic
teaching; and where you had a
Protestant population, you might
have Protestant teaching. There
is a large part of the country where
they are entirely Roman Catholic.
[Mellish, L.J. ! Still, if a Pro-
testant chihl came, he would have
as umch right to be taught the
Chi'istian religion as any child of
Roman Catholic parents. ] The Bible
is not regarded as a sectarian book.
[Sir R. Collier: Yes. It is in
the Index Expurgatorius, Mellish,
L.J. : ' The Bible ' means the Eng-
lish Bible, therefore it means the
Board of Education shall secure
the reading of the English version.
James, L.J. : This is as clear an
anti-denomination school as can
be.] I am obliged to admit it is
a parish .school,. but the consequence
by no means follows that it is not a
denominational school in a part of
the province where the inhabitants
are of one denomination. Where

■i h

)

1 :

T 1

364 B.N^.A. ACT, s. 93 (4).— SECTARIAN MAJORITY.

Mahkr i'. Town

OP PoRTI.ANn.

Comments of
tlicir Lordships
ill P. C.

' 1

there is a Romnn Catholic teacher,
and where Roman Catholic dovo-
tion^s and catechisms are used, any
inliabitaut woidd call it a llonuin
Catholic school. [Jauus, L.J, :
Would you call tlie Irish schools
' denominational schools ' ? They
are exactly the same as these schools.
These must luive been taken from
the model of the Irish schools, and
they are not denominational. Mel-
lish, L.J.: Except that they haveu
patron, the parish priest, who has a
good deal to tlo with them. Theie
are no express words in the Act,
1858, which say they may teach any
denominational religion they please.
Sir J. W. Colvile : Your arj^ument
would be against the repeal of tin-
Act It could not make those
schools denominational, the legal
constitution of which was that they
were not denominational.] I do
not say it would. [Mellish, L.J. :
You say this Act [1858]could never
be altered by the local legislatun-.J
It is enough to sjiy they are pro-
hi»)ited by the B. N. A. Act from
taking away the right of a religious
majority in any particular dis-
trict, the right to have their own
books of devotion and their own
Bible read and taught in that
school. [Mellish, L.J. : Your ar-
gument goes to repeal the substance
of the 93rd section, which .Siiys the
legislature may exclusively nuike
laws in relation to education ; you
say they cannot.] 1 do not go that
length. I sjiy they fall under the
restrictions put on their powers by
sub-sec. 1. [Mellish, L.J. : A Ro'-
man Catholic majority would have
the power of making a Roman
Catholic school. I do not see how
you could make any difference be-
tween the places where they had
not a majority at the tirr? of the
passing of the Act, Pud where they
might get one hereafter.] They
have taken away from the totality of
the Roman Catholic or Protestant in-
habitants of the district, the power
to establish schools in which their
own religious tenets are taught.
They cjuuiot establish such schools
under the new Act. If there were

an immigration of Protestants intoa
Roman Catholic district, and u miI).
sequent change in the religious vi(.\v>
of the majority, that change would
affect the character of the stiKJoi.
Is 'it possible to say these .schools
should not be deuomiiiatioiinl,
having regard to the way in which
the Act was worked ? [James, L.J.;
I do not think we can look at tlmt ;
we have a plain Act of Pailiiinicnt
to construe, and Ave have iiotliimr
to do with the mode in wliidi it is
worked.] The legislature in pussiiiB
this Act of Union nuiy be sup-
posed to have had regard to the
state of the religious teacliinj; at
the time, and the wishes of tlif
majority. [James, L.J. : They knew
what the law was.] They must he
taken to have knowledge of the stiitc
of things, that there were a givat
number of districts in this proviiiw
where Roman Catholic teaclieis
were elected, Roman Catholic ente-
chisnis and books were used. Thiii
state of things is distinctly [iro-
hibited by the new Act, 1871,
which says in terms the schools
shall not be sectarian. [Mellish,
L.J. : Must not a ' denominiitioiiiil
school' within the meaning of the 1st
sub-sec, sec. 93, be a school which
is to be always denominatioual?
Would a school which may be de-
nominational one year and belong to
a particular sect, ami then the next
year to another sect, according to
the majority of the inhabitauts iu
its favour, be a denominatioual
school which any particuhir class
have by law ?] I cannot say thev
were denominational in perpetuity.
I am compelled to admit they
might cease to be .so, but still they
would be so as long as the majority
of the inhabitauts of a district con-
tinued in the same faith, as they do
for generations in these parts. Siih-
sec. 2, sec. 93, is intended to apph
to the separate and the dis.sentieiit
schools of U. C. and L. C, establish-
ed for the Roman Catholic and Pro-
testants by Acts of Parliament,
there being in those Acts of Piirlin-
ment express provision for the esta-
blishment of these schools [see C. t).

B.TJA. ACT, 8. 93 (4).— VOTES CHANGE SCHOOL.

365

nntsintoa
iinl a Mill,
ioii^vit'ws
>g<' would

JO Sfhdol.

i^e schools
niimtioiml,
y ill wliidi
mil's, L,J„.

k at tiiat ;

'ai'liaiiM'iit
nothing
whic'li it is

ill pussing
lie sup-

rd to the
eac'liiiif; at
lies of tliu
rbev knew
f\ must lie
of the stiitc
■re a "iwit

L.C. 18(il,c. 15.; C.S. 1^0.1859,
a: Gl. 05], and, therefore, snb-
m: - was not intended to apply to
the schools of New Brunswick or
XovM Scotia. [See R. S. N. S., Si'd
series, e. 58. ; 28 Viet. co. 28. 29. ;
soviet, e. 30.] Therefore, by in-
feivnce, siih-see. 1 was intended to
ajiply to the parliamentary .schools
in Xovii Scotia. That is, these
parish .schools which in Protestant
districts were Protestant schools,
ami in Catholic districts were Ca-
tiiolic schools. [Mellish, L.J. : Sub-
sec. I. would clearly ap|)ly to l\o-
niaii Catholic schools t-stablished
bv Roman Catholic money.] It is
not very likely the Legislature had
that case before them. I am com-
pelled to admit what is a Roman
Catholic school this year may be-
come a Protestant school the next.
Still, what the legislature had iu
view was the state of things existing,
and the privileges enjoyed by either
I'rotPstants or Roman Catholics nt
the time of the Act of Union."

Mr. Duff, Q.C. : " The ijeoplo
of this <listrict have attempted to
ohtiiiii redress through the Domi-
nion Parliament, but it has refused
to move mitil this Committee's
judgment is known. At the
time of the Union all the laws on
the subject of education in On-
tario, Quebec, and New Brunswick
had a twofold object — the one
was .secular education, and the
other was religions instruction com-
liiued with that secular education.
That was particularly the case with
legrti'd to Lower Canada, where the
rights of the Protestant minority
were secured by what are called
dissentient schools. The rights of
the Roman Catholic minority in
Upper Canada were secured by
what are termed separate schools.
The riglits of these two classes of
Christians, the Roman Catholics and
the Protestants, were secured in New
BnuLswiek by sec. 8 of the Act of
lHo8. [Melli-sh, L.J. : How were
the Catholic schools in Upper Can-
ada aud the Protestant schools in
Lower Canada managed ?] By an
assessment on themselves separately,

their Lordshil>s
ill P. C.

s. 15. [Mellish, L..I. : Were there Maheu i'. Town
any schools (dearly denominational """ Pouti.anh.
schools, Roman Catholic; or Pro- Comments of
testa nt, in any one of the four
laovinces which were supported by
rates on all the Queen's subjoct.s,
without reference to their religion ?]
No. The language of sub-sec. 1 is
capable of being applied to a right
such as this — a right to call into
existence schools exclusively of
any particular denomination umler
certain conditions of time and
phtce. The right would exist even
if those schools themselves did not
exist. The language is different
from the other sub-sections. It is
not a system of separate schools, it
is n(jt a sy.stem of denominational
schools, but it is a right in respect
of denominational schools. That
right might exi.st, capable of being
called into existence by right ot'
the law under load circumstances,
and it was called into existence.
[James, L.J. : That is to say, that
if a school might fall into the hands
of persons entirely Roman Catholic
or entirely Protestant, there would
be Roman Catholic electors and
Protestant electors, and a Roman
Catholic master and a Protestant
master appointed. The .school
might be .so worked as to give
it a denominational character, Imt
to .say that because it has assumed
that character it is therefore a
denominational school, any injury
to which would be unconstitutional,
is monstrous.] The 8th sec.
of the Act of 1858 authorizes re-
ligious books to be used ; they have
their Douay Bible, they practise
their acts of tlexotion. A school
so constituted wouUl be legally con-
stituted under the Act. The right
to constitute such a .school is a right
secured to them by law in respect
of a denominational school. [James,
L.J. : It is a right to the ratepayers
of a district to establish a school,
but it is not a right to a denomina-
tion. It is a right to the ratepayers,
to whatever denomination they be-
long, but because the ratepayers may
belong to one denomination by an
overwhelming majority', that does

366 B.N.A. ACT, 8. 93 (4).— POWER TO REPEAL ACT.

Judgment of
P.O.

Maiibh r. Toww not make the school denomi'na-
op Portland, tionnl.] Tlie 93r(l see. seenis to
secure some sucli rifjlit, iH'cniise
the other rights, the riji;hts of the
sy.stem of separate schoohs in Upper
and Lower Cunathi, were .secured by
the otlier sections. [Meilish, L.J. :
I do not agree with you there, he-
eau.se I can find iiotliing in tlio 1st
sub-sec. which i)re vented the legis-
lature of Ui)pi'r Canada repealing
the peculiar laws by which the
Roman Catholic .schools in Upix-r
Canada were established. The 2nd
sub-sec. assumes that by the Istsub-
,sec. that has been [jreventcd, but it
does not itself enact it. [His Lord-
ship read the 2nd sub-sec] Tlau'e
is nothing to i)revent the legis-
lature in Upper Canada repealing
all the powers, privileges, and
duties conferred on separat*^ schools
for the Queen's subjects in Ui)per
Canada except the 1st suh-sec ]
The 3rd .sub-sec. has some bearinjr.
[Meilish, L.J. : If yon are right
that the parish schools in New
Brunswick were denominational
schools, that would be a system of
dissentient separate schools in New
Brunswick, and the Srd sub-sec.
would apply to it.] That is not
my contention. [James, L.J. : Do
you really go so far as to .say that
the Act establishing parish schools
has never been rejjealed ? Was there
any Act that could not be repealed
by the legislature ?] If they simply
repealed the Act and went no fur-
ther, we .should not be injured.
[James, L.J. : If they simply re-
jiealed the Act, there would be no
privilege interfered with.] We
should not then be supporting
schools of other denominations.
[James, L.J. : It seems idle to say
they cannot repeal the Act.] "

17th July 1874. James, L.J.
[there being also present Sir J. W.
Colvile, Meilish, L.J., Sir Mon-
taigne E. Smith, and Sir R. Collier]
delivered the following judgment :
"Their Lordships have l)een unable
to entertain any doubt whatever
upon this question. The point is
a very short point, and depends up-
on the construction of a very few

words in the Act constituting the
Dominion of Canada. The ques-
tion alone to which we desired
counsel to coidine them.sclves, as
lying at the root of the whole tiiiii>r^
is wlietlier the schools whicli exist-
ed in New Brunswick under tlic
Public Schools Act, which (^xistwl
there before the new Act, were dp.
noniinatioual .schools or not. I
think the Council would find • im-
l)0ssil)l(( to exjjress their view.s on
the subject in any better or more
forcible language than that wliicii
is found in the judgment of Fisher,
J., which is probably the more
valuable upon these points, l)ecimse,
as far as their Lord.shii)s are able to
gather, Fi.sher, J., per.sonally ex-
presstnl some doubt as to the |K)liev
of the new system. Mr. Jus-
tico Fisher's language, after giving
some other description of the old
Schools Act, is — ' It provided for a
school library in each district l)y a
money grant in aid of the amount
raised in the locality for that pur-
pose, and placed the .selection of
l)ooks under the control of the
Board of Education, l)ut expressly
excluded works of a licentious,
vicious, or innnoral tendency, or
hostile to the Christian rehgion, or
works on controversial theology.
This is the only part of the law in
which anything of a denominational
chai-acter is referred to in anyway,
and it .shows how zealous the legLs-
hiture Avas in guarding the law and
in preserving the schools from any
denominational or sectarian ten-
dency. Provision was made for
the education of the children of the
whole ijeople in sciiools of every
grade, and by teachers of both
sexes, and by the superior school
the wants of higher education were
provided for. The whole machinery
of the Act is designed to make the
schools common to the children of
every man, irresiJective of his reli-
gious opinions. The Act recognises
the agreement of the inhabitants of
any locality with a teacher licensed
by the Board of Education, when
they have provided *a sufficient
school house' and secured the

B.N.A. ACT, 9. 93 (4).— NO PECULIAR RIGHT. 367

necessary salary, raised by volun-
tiiry contnl)iitious or tuition fee.
It (.'ontains provisions for voluntary
iissessiiiont in the district, parish, or
c'oiiiitv wiiere the ratepayers (h'ter-
iiiinc to adopt tliat mode of sup-
ijoitinjj the sehools, and in sueli
case tlio seliools are deehired to he
five to tlio eliildren of all tlu; in-
liabitants The system is preserih-
ed hy the Board of Education ; the
localities take an active part in the
cstalilisliinent and government of
the schools, subject to the general
control of the Government. Tlie
local afjciicy is exercised, and the
locnl otlicers appointed in the same
iiiiiuner as for the government and
support of the poor, the highways, or
aiiv other local or parochial objects.
Neither class, creed, nor colour
affect or iidhieiice the one more
tlian llie other. Thc! only (pialifi-
cation for the electors of any officer
is that they are to be ratepayers
upon real or personal property, or
income. No class or creed had
under the Act any peculiar right,
either in the general government
of the whole i)rovince or in any
parish or school. Now, when all
the niaehinery for working the
Acts relating to [jarish .schools had
lieen made, is it not a striking proof
of tiie determination of the legisla-
ture to avoid the very thing which
it is contended the Act authorizes,
by restrictin<r the Board of Educa-
tion to make rules and regulations
in tiiis respect, and expressly ex-
ciudinj; from the school libraries
works iiostile to the Christian reli-
gion, or works on controversial
tiieolon;y; while it left the inhabi-
tants free to elect their local agents
wlio should employ the teachers
and look after the schools. To
secure to e\ ery man, and the child
of every man, a just equality with
regard to his religiou.s faith, it
enacted, in effect, that the great
leading principles of Christianity
should he inculcated in the schools ;
hut there should not be in the
lihrary u book upon controversial
theology, or, in other words, with
ileuomiuational teaching.' [See

ante, p. 310]. Their Lordships Mahib t-. Town
agree entirely with that view and *'*' Portland.
with that mode of expressing Judgment of
the hiw by Fisher, J. It has ^- ^•
been contended on the part of
the appellant that tie facto they l)e-
canu^ denominational schools in this
way — that is to say, that whereas
the whole machinery was left local,
that the ratepayers had the power
of appointing the master, the rate-
l)ayers had the power of appointing
the trustees of the schools, but
where the whole inhabitants of a
district, or the great majority of a
district, belonged to the Ilomau
Catholic faith, or belonged to a
Protestant sect, there they could
.so work the .school pnictically as to
give it a denominational character
or a denominational hue ; that is to
say, if all the children were Roman
Catholics, Roman Catholic teaching
would be found in that school ; but
the fact that that might be the acci-
dental result of the mode of working
the Act under the old system is not
to gi\e a legal right to that denomi-
nation, which was the right alone
which was intended to be protected
by the Federation Act of the Domi-
nion of Caiuida. It is an accident
which might have happened to-day
and might have been reversed to-
morrow by a change of the inlMibi-
tants of the district, or a change in
their views ; and that is not a thing
to which it is possible to give the
colour of a legal right. Their
Lordships are, therefore, of opinion
that there is nothing in the ground
taken by the appellant, or anything
unconstitutional in the Act of New
Briuiswick, and, therefore, their
Lortlships will recommend Her
Majesty that the appeal be dis-
missed with costs." [The above
record and the shorthand notes of
the above judgment were kindly
lent to me by Mr. Groves, of Messrs,
Bircham & Co., 46, Parliament
Street, Westminster, who were the
agents for the succe.ssful respon-
dents.]

A medical practitioner, register-
ed in England under the Imperial
Medical Act, 31 Vict. j. 29., which

!i''H'j|

3G8 n.N.A. ACT, H. 03 (4).— MEDICAL PRAtTITIONKRS.

Run. V. (JoL-

I.RflR OK PllV-

HICIANH.

N-1

11'

.!Miii:r

eimots tliat evt'iy person rcgisicrcd
undci lliiit Act tuny prnctiso in nny
])art of Hor Majesty's Dominions,
was lield to l)e entitled without ex-
amination to |)i'aetise in Ontiirio on
])ayinentof tlieprojH'rfees. SW Ueg.
V. Collefje of IMivsieians, Dee. 27,
1H70, 11 r. C. "Q. H. -)(M. Jla-;-
aity, C ,r., said : Shortly before
confederation tlie tlien Parliament
of Canada |)assed 21) Viet. (1805)
e. 34., providiiifi for a re<;ister of
licensed praetitioners,and for admis-
sion tliei'otf) on a fee of .*<5 for
qualification olitained up to .Ian. 1,
18(10, and not to exceed SIO for
qnalitication obtained thereafter.
Schedule A. contained a list of per-
.sons (pialitied for registration, in-
cludiiif); a holder of a certifi<'ate of
registration under the Imperial Act
21 & 22 Vict. c. 00., or any Act
amending the same. On 21 ^larch
187-1, the Ontario Act, 37 Vict,
c. 30. [.lee K. S. O. c. 142.
s. 24], amended the law, the main
provision being, all i)ersoiis quali-
fied under schedule B. prior to
July 1870 may register on pay-
ment of a fee; and sec. 25, all
persons not so registered shall sul)-
mit to examination. Schedule 13.
allows as a qnalitication the certi-
ficates of registration under the
Imperial Medical Act, or any Act
amending the same. But as the
present applicant obtained his Im-
perial qualification long after 1870,
it is urged he cannot claim any privi-
lege therefrom. ... It was urged
by the defendants that as the sub-
ject of education was one in which
the exclusive right was gi\en to the
province, we should read the sub-
sequent Imperial Act as not inter-
fering with the right so granted. To
this it may be urged that where the
Federation Act speaks of any such
exclusive right, it means exclusive as
oi)posed to any attempt to legislate
by the Dominion Parliament. [See
Smiles V. Belford, 1877, 1 A. O.
R. 436; Note, ante, sec. 91, sub-
sec. 23.] "But it apjiears to us
that the language of the Imperial
Act already referred to is too clear
for dispute. It declares pointedly

and most distinctly that a jjcrson
on its register shall be entitled t(i
registration in 'any colony,' on
payment of th(> fee (if aiiv) rc-
(|uired for such registration; ami
the definition of ' colony ' cleaily in.
eludes Canada." Mandanni.s gnnit-
ed to admit the apitlicant.

In Xova Scotia and New
Briniswick, Killam, J., said in
Barrett's caw, 7 Man. L. 1{.
201 : " All cfudd 1m' compelled to
contribute to the support of the
public schools by direct taxntioii,
without reference to religious licljct'
or the existence of denominational
schools, and ther was no recognis-
able right to have the latter main-
tained in any way at the pulilio
exix>nse, or by any system of taxa-
tion." Free schools were introdncrd
in Nova Scotia in 1865, which in-
^•olved the levying of an assessnioni
upon the inhabitants of the .several
.school si'Ctions of the townships
for the erection of school-hou.ses and
payment of teachers. Att.-Gen.of
Nova Scotia v. Axford, 17 N. S. L.
R., p. 113.

North-West Territories— It
was i)i-o\ide<l by the North-Wcst
Territories Act, 1880, 43 Vict.
c. 25. s. 0, that the Lieutenant-
Governor in Council, or the Lieu-
tenant-Governor by and with the
advice and consent of the legislative
assembly, as the case may be, shall
have such power to make ordinances
for the government of the North-
West Territories as the Governor
in Council may, from time to tiuie,
confer on him : provided alwavs
that such powers shall not at any
time be in excess of those conferred
by the 92nd and 93rd sections of
the B. N. A. Act upon the legisla-
tures of the several provinces of the
Dominion. Sub-sec. 2. Provided
that no ordinance to be made shall
be inconsistent with or repeal any
provision of any Act of the Par-
liament of Canada in the schedule
attached to the Act, or any future
Act expressly referring to these
territories, or delared to be in force'
in them, or impose any fine or
penalty exceeding $100.

B.N.A. ACT, s. 03— MANTTOHA ACT.

369

i ;!■ !

A quostion arose in Manitohii undor tho " Public
Schools Act," 1890, of tliat province, niid as its decision
vested partly on tlio 9.'}rd s(>ction of the IJ. N. A. Act,
and piu'tly on the " AFanitoba Act " passed by the
Dominion I'arliament 1870, 33 Vict. c. 3., which was
coiiliniied by the Imperial Act 34 &, 35 Vict. c. 28., it
is considered ini])ortant to i?ive here the .sections of tho
Maintoha Act which were cited in tlie Manitoba school
cases.

'■

^1^

FHE MANITOBA ACT.

STATUTE or CANADA— 33 VICT. (1870) c. 3.

An Act to amend and continue tlie Act 32 & 33
Vict. [Dom.] c. 3. ; and to establish and pro-
vide for the Government of the Province of
Manitoba. [Assented to 12th May 1870.]

WHEKEAS it is probable that Her Majesty the Preamble.
Qneen may, pursuant to the British North Ame-
rica Act, 18G7, be pleased to admit Rupert^s Land and
the Nortli-Western territorv into the Union or Dominion

of Canada, b(;fore the next session of the Parliament of
Canada.

2. On, from, and after the said dav on which the 9"'^*'" p?°^'".

' ' • sions of B.N.A.

Order of the Queen in Council shall take eifect as afore- -^ct, isct, to
said, the provisions of the British North America Act, toba.
1867, shall, except those parts thereoL Avhich are in
terms made or, by reasonable intendment, may be hold
to 1)0 specially applicable to, or only to affect one or
more, Init not the whole, of the provinces now com-
posing the Dominion, and except so far as the same
may bo varied by this Act, be applicable to the pro-
vince of Manitoba, in the same way and to the like
extent as they apply to the several provinces of Canada,

a 2340. A A

i i i

370

B.N.A. ACT, s. 93.— MANITOBA ACT.

and as if the province of Manitoba had been one of the
provinces originally united by the said Act.

': i\\]

I :;il!

Certain piori- 21. The foUowiug provisions of the British Xovtli
Act, 18G7, to iVmerica Act, 1807, respoctini>- th(; IIous(; of Coinmons
»ppy- ^^ Canada, shall extend and api)ly to the legislative

assembly, that is to say : — Provisions relating to the
election of a Speaker, originally and on vacancies, — the
duties of the Speaker, — the absence of the Speaker, and
the mode of voting, as if those provisions Avere lierc
re-enacted and made applicable in terms to the legis-
lative asseniblv.

Legislation 22. In and for the province, the said legislature iiiuv

touching 1.1 • !• !• ,.'

schools >ubjict exclusively make laws m relation to education, siil)](ct

to certain pro- , \. . .1 i; n •

visions. «^nd according to tlie toUowing provisions : —

Denominational (1.) Notliiiig in ally sucli laAV sliall prejudicially allVct

any right or privilege with respect to denonii-
national schools, -which any class of persons
have by law or practice in the province at the
Union : [see ante p. 332.]

Appeal to Gov.- (2.) All aoiieal shall lie to the Governor-General in

tien. in C. /-IMP . .L 1 • • ,. ,

Council from any Act or decision ol tlie
h^gislatiire of the province, or of any jjio-
vincial authority, affecting any right or pri-
vilege of the Protestant or Roman Catholic
minority of the Queen's subjects in relation to
education :
Power reserved (3 ) 1,^ (jaso aiiv sucli proviiicial law, as from time

to Parliai c t. V / _ . 1 '

to time seems to the Governor - General in
Council requisite for the due execution of the
provisions of this section, is not made, or in
case any decision of the Governor-General in
Council on any appeal under this section is
not duly executed by the jiroper pro\incial
authority in that behalf, then, and in even
such case, and as far oulv as the circum-

B.N.A. ACT, s. 93.— MANITOBA SCHOOL CASES. 371

;oiiiin()ns

stances of each case require, the Parliament
of Canada may make remedial laws for the
due execution of the provisions of this section,
and of any decision of the Governor-General
in Council under this section.

Tn The City ok Winnipeg v.
Hahhett, in S. C. Oct. 28, 1H91,
lict'oiv Hitcliip, C..I., and Stronj;,
Foiirnu'i', TiiscliPi-cau, ami Patter-
son, .1.1., 10 S. C. R. .374,i'ov(Tsiiio-
Tiivltir, C..T., and Bain, .T., Dnbuc,
,T.,"(lissfntintj, 7 Man. L. E. 27.3,
iiinl Tin; City of Winnipeg v.
Lo(;.\x, i'roni the Ct. Q. B., Mani-
tdlm, before the last three jiulj^es,
11 Die. 1891, 8 Man. L. R. 3,
whicli followed the former ease
1111(1 which were heard together in
P. ('. -M .fulv, [1892] A. C. J4.5;
01 L. .1. P. ('..58; (57L. T. 429,
Lord MMcnajihten delivered the
Idllmviiijr judgnuMit [|)resent also
honlsAVatson, Morris, Haniieii, Sir
\\. ("ouch, Mild Lord Shand] : —

•' Those two ajipeals were heard

tiis;ctiicr. In tin- one ease the

City of Wiiini[)e<; appeals from a

iiuluinciit of the Supreme Court of

Ciiiiitiin icvcrsinji; a judgment of the

Couit of (Queen's Bench for Mani-

toljM — in the other from a snbse-

(jiii'iit jiKluiiient of the Court of

Qiuen's Meiich for Manitoba fol-

iowiiif; tile judgment of tlie

Supiciue Court. 'I'he judgments

iiiider niipeiil (jiiashed eertuin l)ve-

l:iws of the n\\- of Winnipeg which

iiuiiiori/.cMl assessments for school

pui'iioses in [)ursuance of ' The

l'ul)lic Schoi)ls Act, 1890' [53

Vict. c. 38.], ji statute of Manitoba

to which Hoinan Catholics and

uuMiilit'is of the Church of England

:iiii<o tiike exception. The views

»f llie Roiimu Catholic Church

well' nmintaitied by Mr. Barrett ;

the case of the C'hiireh of Englai.i

«a>. i)\it i'diwanl by Mr. Logan.

Mr. Lnjiaii was content to rely on

till' aifimiieiits advanced on behiii

"1 Mr.Biurett, while Mr. Barrett's

advisers were not prepared to make City op Winni-
coinmon cau.se with Mr. Logan, ^^-^^ ''• ^arrftt.
and naturally would have been
better jtleased to stand alone.

'* The controversy which has
given rise to the present litigation
is, no doubt, beset with <lifficultie.s.
The result of the controversy is of
serious moment to the province of
Manitobiv, and a matter apparently
of deep interest througliout the
Dominion. But in its legal aspect
t.'e (piestion lies in a very narrow
compass. The duty of this Board
is simply to determine ns a matter
of law whether, according to the
true construction of the Manitolia
Act, 1870, having regurd to the
state of things which existed in
^lanitoba at the time of the Union,
the provincial legislature has or
has not exceeded its ])owers in
passing ' 'J'he Public Schools Act,
1890.''

"Manitoba became one of the
provinces of the Dominion of
Canada under the Manitoba Act,
1870, which was afterwards con-
firnuMl by an Imperial .statute
known as ' 'J'he British North
America Act, 1871.' Before the
I^nion it was not an independent
province, with a constitution and a
legislature of its own. It formed
part of the \ast territories which
iielonged to the Hudson's Bay
Company and were administered
bv their oflieers or agents.

"The ]Manitoba Act, 1870, de-
clared that the pro\isiors of the
Britisii North America Act, 1807,
with certain exceptions not material
to the [)resent ipiestion, should be
ai)pticable to the province of Mani-
toba, as if ^Manitoba had been one
of the prt)viuces originally united
by the Act. It establi.shetl a legis-
lature for Manitoba, cousistiiig of a

A A 2

)l !

^mmumfmmm

372 B.N.A. ACT, s. 93— RIGHTS BY PRACTICE.

IHII

City of Winni- lecrislntive council and a legislative
PEG r. Habrett. assembly, and proceeded, in sec. 22,
to I'e-enact with st)iiie niodiiications
the provisions with ren:ard to edu-
cation which are to lie found in see.
93 of the British North Aniericu
Act, 18G7. Sec. 22 of the Mani-
toba Act, so far as it is material, is
in the following terms : —

" ' In and for f lie province, the
said legislature may exclusively
make laws in relation to education,
subject and according to the fol-
lowing provisions :

'(1.) Nothing in any .such law
shall prejmlicially affect
any right or jirivilcge
with respect to denomi-
national schools which
any class of persons have
by law or practict- in the
province at the Union.'

"Then follow two other sub-
sections. Sub-.sec. 2 gives an
'aj)peal,' as it is tei'ined in the Act,
to tlie Goveruor-General in Coun-
cil from any act or decision of the
legislature of the province, or of
any provincial authority, 'affecting
any right or prixilege of tlu! Pro-
testant or Ronum Catholic minority
of the Queen's subjects in relation
to education.' Suli-.sec. 3 reserves
certain limited powers to the
Dominion Parliament, in the event
of the proxincial legislature failing
to comply with the requirements of
the section or the decision of the
Governor-deneral in Council.

" At the commencement of the
argunu'iit a doubt was suggested as
to the competency of the present
aj)peal, in conseciuence of tlie so-
called appeal to the Governor-
General in Council provided by the
Act. But their liordships are
satisfied that the provisions of sub-
sees. 2 and 3 <lo not operate to
witluh'aw such a (piestion as that
involved in tlie j)resent case from
the jui'i.sdictit)n (jf the oi-dinary
tribtnials of the conntrv.

" Sub-.secs. 1, 2, and' 3, of .see. 22
of the Manitoba Act, 1870, ditt'er
but slightly from the corresponding
.sub-sections of sec. 93 of the

British North America Act, 18()7,
The only important difference is
that in the Manitoba Act, in siili-
sec. 1, the words ' by law ' are fol-
lowed by the words 'or practice'
which i\o iu)t occur in the vorn-
sponding passage in the Brnisli
North America Act, 18(57. Tlicso
words were no doubt introduced tn
uu'et the special case of a cdiuitn
which had not as yet enjoyed tlie
security of laws properly so ciilleil.
It is not perhajjs very easy to deiiiie
precisely the nu'aning of sueli aii
expression as ' having a right or
privilege by practice.' But the
object of the enactment istolerabiv
clear. Evidently the word 'pnic-
tice ' is imt to be construed ns
equivalent to ' custom haviin; ilic
force of law.' 1'heir Lordsliiiisare
convinced that it nm.st have been
the intention of the legislature te
preserve every legal right or privi-
lege, and every benefit or advaiitafre
in the nature of a right or privilege,
with respect to denoniinutidiiiil
schools, which any class of [lersoib
practically enjoyed at the time of
the Union.

" What, then, was tbf slate ol
things when Miinitoba was iKlmii-
ted to the Union ? On this point
there is no dispute. It is agnnl
that there was no law or regulation
or ordinaiu'c with re.spcet to edn-
ciition in force at the time. TLeiv
were, therefore, no rights or privi-
leges with respect to dciKiinina-
tional .schools existing bylaw. Tlic
practice which prevailed in Miini-
toba before the Union is also ii
matter on which all parties aiv
agreed. The statement on ilio
subject by Archbishop Taclie, tlif
Roman Catholic Archl)isluip di' St.
Boniface, who has given evideiuv
in Bari'ctt's case, has Iteeii Mceeptiil
as accurate and complete.

"'There existed,' he .says, 'in
tlu' territory now constituting tin
province of Manitoba a mniiln'r el
effective schools for children.

" ' These schools were denoiuinii-
tional schools, some of them luiii;;
regulated ami controlled hv tli

i f

• I

B.N.A. ACT, s. 93.— STATE BEFORE UNION. MS

Roiimu Ciitholic Cliurcb, and others
bv various Protestant denouiiua-
tioiis.

•' • rile means necessarv for the
support of the lloman Catholic
sciiools were sui)plied to some ex-
ti'iit by seliool fees [)ai(l hv some of
tlu' piiients of the eiiihh'eu who
Mtteiiil the schools, and the rest was
paid out of the funds of the church,
coutriliuted hv its menihors.

" ' IJiiring the period referred to,
Hoiuiui C'atliolics had no interest
in or control over the schools of the
I'lotestiUit denominations, and the
uu'Uiliprs of the Protestant denoini-
niitions liiid no interest in or control
over the schools of Kouian Catholics.
There were no puhlic schools in
till' sense of State schools. 'I'he
mcuibers of the Roman Catholic
C'iiiiivli supported the schools of
their owu church for the benefit of
IJuiiiJiu Cntliolic children, and were
not under olilij>;ation to, and did
nut eontrihute to the support of
iinv oilier schools.'

"Xow, if the .state of things
which the ArchbLshop describes as
I'.xistinj; iiefore the Union had been
a system established by law, what
would hiive been the ri<:;hts and
privileges of the Roman Catholics
with lespeet to denominational
schools? They would have had
by law the right to establish schools
at their own expense, to maintain
ihcii' schools l)y school fees or
vcluut;.;y coiitriimtions, and to
coiuluet tiiem in accorilauce with
their own religious tenets. Every
other religious body which was
i'iin;agcd in a similar work at the
tiuiv of the Union would have had
precisely the same right with re-
spect to their denominational
schools. Possibly this I'ight, if it
liiul heeu defined or recognised by
positive enuctment, might have had
attached to it as a necessary or
iippropriate incident the right of
raemptiou from any contribution
imder any circumstances to schools
of a different denomination. But,
I" their Lordships' opinion, it
would be going much too far to

hold that the esiablishnient of a City ofWinni-
national .system of education upon peo i'. Bauhbtt.
an unsectarian basis is .so inconsis-
tent with the right to set up and
maintain denonunational schools
that the two things cannot exist
together, or that the existence of
the one necessarily implies or in-
volves immunity from taxation for
the purpose of the other. It has
been objected that if the rights of
Roman Catholics, and of other re-
ligious bodies, in respect of their
denominational schools, are to be
so .strictly measured and limite(,l by
the practice which actually pre-
vailed at the time of the Union,
they will be reduced to the con-
dition of a ' natural right ' which
' does not want any legislation to
protect it.' Such a right, it was
said, cannot be called a privilege in
any proper sense of the word. If
that be so, the only result is that
the protection which the Act pur-
ports to extend to rights and privi-
leges existing ' by practice ' has no
more operation than the protection
which it purports to afford to
rights and privileges existing ' by
hiw.' It can hardly be contended
that, in order to give a substantial
operation and effect to a saving
clause exi)resseil in general terms,
it is incumbent upon the Court to
discover privileges which are not
apparent of themselves, or to as-
cribe distinctive and peculiar fea-
tures to rights which seem to be of
such a common type as not to
deserve si)ecial notice or require
special protection.

" Manitoba having l)een consti-
tuted a province of the Dominion
in 1870, the provincial legislature
lost no time in dealing with the
()uestion of education. In 1871 a
hiw was passed which established a
system of denominational educa-
tion in the common schools as they
were then called. A Boanl of
Education was formed, which was
to be divided into two sections,
Protestant and Roman Catholic.
Each section was to have under its
control and management the dis-

il:

Mi!

I ; i ! '

'iiiii

i' i

: I
ii

f f

371

B.N.A. ACT, s. 93.— DENOMINATIONAL.

CiTv ofWinni- oipliiip of the schools of tlio sectiou.

m. i-. liARuETT. ;t,„|pj. ^i,j. Manitoba Aft the pro-
vince hiid been diviilcd into 21 oleo-
toral divisions, for tiie jjnrpose of
electing nieud)ers to serve in the
letjislative assembly. By the Act
of 1H71 each electoral division was
constitnted a school district in the
first instance. Twelve electoral
divisions, ' comprising mainly ii
Protestant population,' were to ))e
considered Protestant school dis-
tricts ; twelve, ' comprising mainly
a Koman Catholic population,' were
to be considered Konian Catholic
school districts. Without the
s[)ecial sanction t)f the section there
\vas not to be more tlian one school
in any school district. The male
inhabitants of each school district,
assembled at an aimual meeting,
were to decide in what manner they
should raise their contributions
towards tlie sujtport of the school,
in addition to what was derived
from public funds. It is perhaps
not ouf of place to observe that one
of the modes prescribed was 'assess-
ment on the [)roperty of the school
district,' which must have involved,
in some cases at any rate, an assess-
ment on Eoman Catholics for the
support of a Protestant school, and
an assessment on Protestants for
the support of a Roman Catholic
school. In the event of an assess-
ment, there was no provision for
exemption, except in the case of
the father oi' guardian of a school
child — a Protestant in a Roman
Catholic school district or a Ilouian
Catholic in a Protestant school dis-
trict— who might escape by sending
the child to the school of the nearest
district of the other section, and
conti'ibnting to it an amount e'.[ual
to Avhat he Avould have [)aid if he
had belonged to that district.

'* The laws relating to education
were modified from time to time.
But tile system of denominational
education was maintained in full
vigour until lSt)0. An Act passed
in IHHl, following an Act of 1875,
provided among other things that
the establishment of a school dis-

trict of one denomination should
not prevent the establislnnent of a
school district of the other denomi-
nation in the same i)lace, and llmt
a Protestant and a Koman Catlioiic
district might include the siiiic
teri'itory in whole or in part. Frdin
the year 1870 until 180U enact-
ments were in force declaring liint
in no ca.se should a ProtestiuU rale-
payer be obliged to pay for a Ko-
nian Catholic school, or a Kouian
Catholic ratepayer for a Protestant
school.

"In 1890 the policy of the pa-t
19 years was reversed ; thedenumi-
national system of public educa-
tion was entirely swcjjt away. Two
Acts in relation to eilueation wcic
passed. Tile iirst (53 Vict. c. ;}7,)
established a Department of Edu-
cation, and a board eonsistiiii; ut'
se\en members known as tiic
' Aihisory Board.' Four mciiilx'rs
of the board were to l)c ai)[ioiutcd
by the Dei)artmenl of E(lucatiuii,
two were to be elected by the pub-
lic atid high school teachers, and
the seventh member was to be
apiiointed by the University Coun-
cil. One of the powers of tlip
Advisory Board was to prcsi'iibe
the forms of religious exercises
to be tiseil in the .scliools.

" The Public Schools Act, iSiW
(53 Vict. c. 38.), enacted that all
Protestant and Roman Catlioiie
school districts should be subject
to the provisions of the Act, ami
that all public schools should lie
free schools. The provisions of
the Act with regartl to religious
exercises are as follows : —

" ' G. Religious exerci.ses in the
public schools shall be conducted
according to the regulations of the
Advisory Board. The time for
such religious exerci.ses shall be
just before the closing hour in tlie
afternoon. In ease the [lareni or
guardian of any pupil notifies the
teacher that he does not wish such
jiupil to attend stich religious
exercises, then such pupil shall Ik'
disniisseil before such religious
exercises take place.

B.N.A. ACT, s. 93.— PREJUDICIALLY AFFECTED. 375

" ' 7. Religious exercises shall he
held in a piiblie sehool entirely at
llic option of the sehool trustees
I'm' the (listriet, iiuil upon receiving
written authority from the trustees,
it shall lie the duty of the teachers
to hold such religious exercises.

" ' 8. The [)ublic schools shall be
entirely non-sectarian, and no re-
ligious exercises shall be allowed
therein except as above provided.'

" The Act then provides for the
formation, alteration, and union of
school districts, for the election of
school trustees, and for levying a
rate on the taxable property in each
school district for school purposes.
In cities the Municipal Cotnicil is
required to levy and collect U[)on
the taxable property within the
nitniiciiiality such sums as the
school trustees nniy re(|uire for
school purposes. A poi'tion of the
Ipsrislative <riant for educational
imri)oscs is allotted to ])ublie
schools; but it is pro\ided that
luiy school not conducted according
to ail the provisions of the Act, or
auy Act in force for the time being,
or the regulations of the Dei)art-
meiit of Education, or the Advisory
Board, shall not be deemed a public
school within the meaning of the
law, and shall not participate in
the legislative grant. Sec. 141
provides that no teacher shall use
or permit to be used as text books
any books except such as are
authorized by the Advisory Board,
and that no portion of the legisla-
tive grant shall be paid to auy
school in which unauthorized books
are used. Then there are two sec-
tions (ITS and 170) which call for
II passing notice, because, owing
apparciuly to sonu' misapprehen-
sion, they are spoken of in one of
tlic judgments luuh-r appeal as if
liicireffcct was to eonliseatc Roman
Catholic [iroperty. They apply to
cases where the same territory was
covered by a Protestant school dis-
trict and by a Roman Catholic
district. In such a case Roman
Catholics were really placed in a
'>«»" position than Protestants.

Certain exemptions were to be
nia(h' in their favour if the as.si'ts
of their tlistrict exceeded its liabili-
ties, or if the liabilities of the
Protestant sehool district exceeded
its assets. But no corresponding
exemptions were to be made in the
cas*' of Protestants.

" Such being the main provisions
of the Public Schools Act, 1890,
their Lordships have to determine
whether that Act prejudicially
affects auy right or privilege with
respect to denominational schools
which any class of persons had by
law or practice in the province at
the Union.

" Notwithstanding the Public
Schools Act, 1890, Ronmn Catho-
lics and members of every other
religious body in jNIanitoba are
free to establish schools throughout
the province ; they are free to
maintain their schools by school
fees or voluntary subscriptions;
they are free to conduct their
schools according to their own re-
ligious tenets without molestation
or interference. No child is coin-
|)elled to attend a public school.
No special advantage other than
the advantage of a free education
in schools conducted under public
management is held out to those
who do attend. But then it is said
that it is impossible for Roman
Catholics, or for members of the
Church of England (if their views
are correctly represented by the
Bishop of Rupert's Laud, who has
given evidence in Logan's case), to
send their children to public
schools where the education is not
superintended and directed by the
authorities of their church, and
that, therefore, Roman Catholics
aiul members of the Church of
England who are taxed for public
schools, and at the same time feel
themselves compelled to support
their own schools, arc in a less
favourable position than those who
can take advantage of the free
education provided by thi^ Act of
1890. That may be so. But what
right or privilege is violated or

CrrY or Winni-
I'EO V. Baukett.

ii;!;?

i'i

376

B.N.A. ACT, 8. 93 — BROPHY'S CASE.

I'i

1 I ■ " '

( . :

CiTv OK WiNNi- pn'jndifmlly nffeeted by the law?

PEf) V. IJaTUIKTT. H \^ ,,Qt ^Y^^ ,,^^^, j,,yj ij, i„ j-,j„u

It is owing to religious eoiivictions
which evfi yhody must resi)et't, and
to the teaching of their chiii'ch, that
Itonian Catholics and nicinbcrs of
the Church of En<;]and find thcui-
selves unable to pai'take of advan-
tages which the law offers to ail
alike.

" Their Lordships are sensible of
the weight which nuist attach to
the unanimous decision of the
Supreme Court. They have
anxiously considered the able and
elaborate judgments by which that
decision has been supported. But
they are unable to agree with the
opinion whic'.i tlii
of the .Svpreni
pressed as to t:
leges of Bomii ^.
toba at the time
Thev doubt v,l ah

' arned judges

. . have ex-

'lU ad i)rivi-

■ao.ic' iu Mani-

of the Union.

T it is [iei inissi-

ble to refer to the <'o -e of i-

tion between 1H71 and 1890 rs a
means of throwing light on the
previous practice or on the con-
struction of the saving clause in
the Manitoba Act. They cannot
a.sseut to the view, which seems to
be indicated by one of the members
of the Supreme Court, that public
schools under the Act of 1890 are
in reality Protestant schools. The
legislature has declared in .so many
words that ' the public schools shall
be entirely unsectarian,' and that
principle is carried out throughout
the Act.

" With the policy of the Act of
1890 their Lordships are not con-
cerned. But they cannot help
observing that, if the views of the
respondents were to i)revail, it
would be extremely difficult for the
provincial legislature, which has
been entrusted with the exclusive
power of making laws relating to
education, to provide for the edu-
cational wants of the more sparsely
inhabited districts of a country
almost as large as Great Britain,
and that the powers of the legisla-
ture, which on the face of the Act
appear .^^o large, would be limitetl

to the useful but somewhat hunihle
office of making regulations I'e" the
sanitary conditions of sehool-hoiiM's,
imi)Osing rates for the suppcjrt of
denominational .schools, enfoicin"
the com|)ulsory attendance of sciio-
lars, and matters of that soif.

" In the result their Lordships
will humbly advise Her Majesty
that these appeals ought to lie
allowed with co.sts. In the ("ityof
Winnipeg v. Barrett it will be pro-
per to rever.se the order of tlie
Suprenie Court with co.sts, and to
restore the jiulgment of the Court
of Qiteen's Bench for ^laiiitohn.
In the City of Winnipeg v. Logiiii
the order will be to reverse the
judgment of the Court of (Queen's
Bench, and to dismiss Mr. Logiin'^
a]»plication, and discharge the niii'
nisi and the rule absolute, with
co.sts."

Bkoi'Hy f. The Att.-Gex. oi
M.vxiTOUA, from the S. C. of
Canada, before Strong, C.J., Four-
nier, Ta.schereau, Gwynne, and
King, JJ., Feb. 20," 1894, 2'J
S. C. R. 577, a special case referred
bv the Governor-General in Coun-
cil to the Sup. Ct. ; in P. C. 29
Jan., [1895] A. C. 202; G3 L. J.
P. C. U; G2 L. T. 10. Lord
Her.schell, L.C., delivered the fol-
lowing judgment of the Honid
[present also. Lords AVatsoii, Mac-
uaghten, and Shand] : —

"In the year 1890 two Aets
were passed by the Legislatiiiv of
Manitoba relating to education.
One of these created a Departnieiit
of Education and an ' Ailvisorv
Board.' The board was to eousist
of seven members, four of whom
were to be appointed by the De-
partment of Education, two to he
elected by the public and hiffli
.school teachers of the provinee,
and one to be a[)l)ointed by the
University Council. The Advi.soiy
Board were empowered (amongst
other things) to authori7,e text
books for the use of pupils and to
|>re.seribe the form of religious
exercises to be used in schools.

B.N.A. ACT, s. 93.— APPEALS TO GOV.

377

" The other Act, which was
termed 'The Puhlic Schools Act,'
islablislicil a system of imhlic c(hi-
ciilioii 'entirely iioii- sectarian,' no
ivlii'iuiis exei'cises lieing allowed
fXtrpt those conihicted accordiii};
to tlie vej;ulatioiis of the Advisory
Boaid. It will be necessary hcrc-
iiftiT Id rel'er somewhat more in de-
tiiil to tile provisions of this Act.

"The Act came into force on
til,. 1st of May 1H90. By virtue
(if its provisions, bye-law.s were
imidi' liy the iminicipal corporation
111' AVMiiiiipeg, imder which a rate
was to he levied upon Protestant
iiiul Koiuan Catholic ratepayers
alike for school purpo.ses. An
appliciitioii was thereupon made to
tiic Court of Queen's Bench of
Maiiitolia to quash these bye-laws
oil the giouud that the Public
St'iiools Act, 1890, was ultra fires
of the prox iiicial legislature, inas-
iimch iis it prejudicially affecti'd a
i'ij;lit or iiiivilege with respect to
lieuoiiiiiiutional schools which the
Koiiiaii Catholics had by law or
piaetice in the province at the
Union. The Court of Queen's
Bi'Ut'li refused the application,
lioiiig of oiiiiiiou that the Act was
intra rircs. The Supreme Court
of Canada took a difEerent view,
liiit upon appeal this Board reversed
tiu'ir decision, and restored the judg-
luciit of the Court of Queen's Bench.
" Memorials and petitions were
afterwards presented to the Gover-
nor-General ill Council on behalf
of the Hoinan Catholic minority of
Manitoba hy way of appeal against
till' Education Acts of 1890. These
memorials and petitions having
Iktu taken into consideration, a
ease in relation thereto was, in [lur-
simnee of tlie provisions of the Su-
preme and Exchequer Courts Act,
referred by the Governoi--Gcncral
in Councii to the Supreme Court
of Canada. The questions referred
for hearing and consideration were
the following : —

'"(I) Is the appeal referred to
in tlie suid memorials and petitions,
and assorted thereby, such an

appeal as is admissible bv sub-sec.
.3 of sec. '.)3 of the British Xorth
America Act, 18ti7, or by sub-sec.
2 of sec. 122 of the Manitoba Act,
33 Viet. (1870) c. 3., Canada ?

'" (2) Are the grounds set forth
in the petitions and nu'iuorials such
as may be tlu' subject of appeal
under the authority of the sub-
sections above referred to or either
of them ?

'"(3) Does the decision of tiie
Judicial Connnittee of the Privy
Council in the ca.ses of Barrett v.
The City of AVinnipeg and Logan
V. The City of Winnipeg [previous
case, [1H92] A. C. 145; HI L. J.
P. C. 58 ; ()7 L. T. 429] dispose
of or comdude the application for
re Ir.'ss based on the contention
that the rights of the Roman
Catholic minority which accrued to
them after the L'liion under the
statutes of the jirovince have been
interfered with by the two statutes
of 1890 complained of in the said
petitions and memorials?

" < (4) Does sub-sec. 3 of sec. 93
of the British North America Act,
1867, apply to Manitoba ?

" ' (5) Has His Excellency the
Governor-General in Council power
to make the declarations or reme-
dial orders which are asked for in
the said memorials and ])etitions,
assuming the matenal facts to be jus
stated therein, or has His Excel-
lency the Governor-General in
Council any other jurisdiction in
the premises ?

" ' (6) Did the Acts of Manitoba
relating to education, [lassed prior
to the session of 1890, confer on or
continue to the minority " a right or
privilege in relation to education "
within the meaning of sub-sec. 2 of
sec. 22 of the Manitoba Act, or
establish a system of separate or
dissentient schools " within the
meaning of siib-.sec. 3 of sec. 93 of
the British North America Act,
1867," if said sec. 93 be found
applicable to Manitoba ; and if so,
did the two Acts of 1890 com-
plained of, or either of them, affect
any right or pri\ilege of the

Hiioniv V.
Att.-Ge.n. or
.Manitoiia.

i' i!
1:1 i

i I

ifll

i i

■BiioriiY V,
Att.-Okn. 01'
Manitoha.

378 B.N.A ACT, s. 93.— COMPARISON OF HCH. ACTS.

minority in such a niaiincr tlmt )iii
apiK'jii will lit' tlicnMiiidcr Id the
(lOViTnor-Ot'iicral in Coinicil ;■ '

"The Icarnetl jiidj^cs of tlic
Snpri'iiu; Court were divided in
o[)inioii \i\MU I'ac'li oF tlip (jucstious
siiliinittfd. 'riicy wci'c all, how-
ever, by a majority ol' thice judf^cs
out ol' tive, answered in the nega-
tive.

"The appeal to the CJoveruoi"-
(Jeneral in Council was founded
ujion the 2'Jnd section of tiie Mani-
toba Act, 1870, and the O.'h'd sec-
tion of the British North Anu'rica
Act, 1H67. By the fori.U'r of the.se
.statutes (which was confirmed and
declared to he \a!i(l and effectual
hy an lmi)erial statute) ^lauitoha
was created a pr,jvinee of the Do-
minion.

"The2n(l section of the Manitoba
Act enacts that after the prescribed
(hiy the British North America
Act ."^hall— [reads it, ncr [>. 'MM)].
It cannot be (piestioned, therefoie,
that sec. 93 of tlie British North
America Act (save such jiarts of it
as are specially ajtplicable to .some
only of the provinces of which the
Dominion was in 1870 composed)
is made applicable to the [)rovince
of Manitoba except in so far as it
is varied by the Manitoba Act.
The 22n(l section of that statute
deals with the same subject-matter
as sec. 93 of the British N(jrth
America Act. The 2nd sub-section
of this latter section may 1)e dis-
carded from consideiation, as it is
manifestly a|)plicable only to the
provinces of Ontario and Quebec.
The renuiiniu};; provisions closely
correspond with those of see. 22 of
the Manitoba Act. The only
difference between the introductory
l)art and the 1st sub-section of the
two sections is that in the Manitoba
Act the words 'or practice' are
added after the word ' law ' in the
l.st sub-section. The 3rd sub-sec-
tion of sec. 22 of the Manitoba Act
is identical with the 4th sub-section
of sec. 93 of the British North
America Act. The 2nd and 3rd
sub-sections, respectively, are the

same, except that in the 2ud Mih-
section of the Manitoba Act the
words 'of the h'fjislatui'e nT ihc
])roviuce or' are inserted luldiv
the words 'any jjrovincial aullid-
rity,' and that the 3rd sub-scciion
tif the British North America Act
comnu'nces with the words ' wlicic
in any j)ro\ince a system of .sc|ij|.
I'ate or dissentient schools exists liv
law at the Union or is tluTeiilti>r
established by the lejfislature ol' ijic
j)ro\ince.' In view of this coiii-
l)arison, it api)ears to their Lonl-
ships impossible to come to imv
other conclusion than that the '2'2\h\
.section of the ^lanitoba Act wiis
intended to be a substitute for tlir
93rd section of the Bi'itisli Xoitli
America Act. Obviously, all tlwt
was intended to be identical lias
been repeated, and in so far as ilic
provisions of the Manitijbn Act
differ from those of the earlier
statute, they nnist be I'egardiMJ as
indicating the variations from tliusc
provisions intended to be intro-
duced in the province of !Manitolia.

"In their Lordships' opinion,
thert'fore, it is the 22nd seel ion
of the Manitoba Act which lias to
be construed in the present ea.se,
though it is, of course, U'g'itiniate
to consider the terms of the cailier
Act, and to take achautage of any
assistance they may afford in the
c(mstruction of enactments with
which they so closely correspond,
and which have been subslitiitcd
for them.

" Before entering upon a critical
examination of the important sec-
tion of the Manitoba Act, it will lie
convenient to state tlu' ciicuni-
stances under which that Act was
j)assed, and also the exact .scope of
the deci.sion uf this Board in tlie
case of Barrett r. The City of
Winnipeg, which seems to have
given rise to some misai)prelu'n.sion.
In 18G7 the luiiou of the provinces
of Canada, Nova Scotia, and New
Brimswick took place. Among
the obstacles which had to be over-
come in order to bring about that
union, none perhaps presented

n.N.A. ACT, s. 93.— HISTORY OP :S[AX. SCHOOLS. 379

cR'iiti'i' (lilHculty tlmii tlic ditt'cr-
iwt'sol' ()])inioii wliicli existed witli
rt'iriinl to tluMiiiestioii of eiliieatioii.
It liiid liecii t!ic sid)jeet of much
(■(iiilrovrrsy in Upprr and Ijowi-r
(.'aiiiiilii. Ill Ui)i)i'i Ciuuidii a
<'oiu'iid system of undenominational
(■(liiciitiou Imd lieeu established, hut
witii ]iro\ ision foi' si'i)arate schools
to sii|i[)ly the wants of the Catiu)lie
iiiliiibiliials of that [H'ovince. The
2nd s(il)-seetion of sec. i).'i of the
Briti.di Xoi'th America Act ex-
tfiided all the powers, jirivileges,
1111(1 duties which were then by law
coiit'ti'i'i'il and imi)oscd in Ui)i»er
Canadii i)ii thesepai'ate schools and
si'hool trustees of the Uonuin
Catholic inhabitants of that pro-
vince to the dissentient schools of
the Piototant and Koman Catholic
iiibiiliitinits of (.Quebec. Tlierecan be
iioilouht that the viewsof the Homan
t'litholic inhabitants of Quebec and
Oiitaiio with regard to education
weiv shared by the mend)ers of the
>am(' coiiMuunion in the territory
which afterwards bi'canu' the pro-
\ iiiw of Manitoba. They regarded
it as essential that the education of
their children should be in accoril-
aiice widi the teaching of their
I'limeh, and considered that such
:iii education could not be obtained
i» laililic schools designed for all
the meml)crs of the community
alike, whatever their creed, but
eoiihl only be secured in schools
I'omhieted under the influence and
guiilaiiee of the authorities of their
eluireh. At the time when the
province of ^Manitoba bi'came jjai-t
lit the Douiinion of Canada, the
Roman Catholic and Protestant
populations in thc^ province were'
aliout e(|ual in nundxn-. Prior to
Ihiit time there did not exist in the
lenitory then incorporated any
pulilie system of education. The
■several religious denominations had
'stahlished such .schools as they
ilwaght til. and maintained them
hv means of fuiuls voluntarily con-
tributed liy the members of their
own comn)uuion. None of them
received nuy Stole aid. . . - .

"The tei'nis upon which Maui- Huophy y
tolia was to become a province t)f VrT.-fiKN. or
the Dominion were matter of nego- •"•^^''™»-^-
tiation between re[)resentatives of
tlu' inhaliitants of Manitoba and of
the Donnnion Uovernnient. Tla^
tei'uis agreed upon, so far as edu-
cation wasconcci'ned, must be taken
to be embodied in the 22nd section
of the Act of 1S70. Their Lord-
shi[)s do not think that anything is
to be gained by the inquiry liow
far the [)rovisions of this section
phiceil the province of Manitoba in
a difi"erent position from the other
pi'ovinces, or whethei' it was one
more or less advantageous. There
can be no presumption as to the
extent to which a varhition was in-
t.' id ',1. This can only be deter-
nnned by construing the words of
the section according to their
natural signilication.

"■ Among the very lirst measures
pas.sed by the Legislature of Mani-
toba was an Act to establish a
system of education in the province,
'i'lie provisions of that Act will
re([iure exanunation. It is sufficient
for the present to .say that the
systt'ui established was di.stinctly
denominational. 'J'his system, with
some niodiiications of the original
scheme, the fruit of later legislation,
remained in foi'ce until it was put
an end to by the Acts which have
given rise to the present contro-
\ersy.

" In Barrett's case the sole ques-
tion raised was, whether the Public
Schools Act of 1890 prejudicially
affected any right t)r privilege
which the Roman Catholics, by law
or practice, had in the province at
the Union. Their Lordships ar-
rived at the conclusion that this
(piestion nnist be answered in the
negative. The only right or privi-
lege which the lioman Catholics
then possessed, either by law or in
jiractice, was the right or privilege
of establishing and maintaining, for
the use of niendiers of their own
church, such schools as they pleased.
It appeared to their Lordships that
this right or privilege remained

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Att.-Ukn. oi'
Manitoba.

380 B.N.A. ACT, s. 93— FUNCTIONS OF A TRIBUNAL.

iintouchi'd, 1111(1, tluTcforc, coiilil
iKtt lie said to In- atVcctiMl liy tlic
lof,'isliitioii of IHiK). It was not
(!oiibt»'(l tliat the olijcct of tlic
1st sub-section of sec. 22 was to
afford i>rot)'('ti(>n to dcnoniinutional
schools, or that it was proper to
ha\i' refjai'd to the intent of the
lefjislatiife and the sinronndinj;
eireninstances in interjiretinfjj tiie
enaelnient. But the (luestion whieh
had to he determined was the ti'iie
eonstruetion of the laiif^uago use<l.
'I'he function of a tribunal is limited
to construing; the words emphned ;
it is not justilied in forciu}; into
them a meaning which thev cainiot
reasonably bear. Its duty is to in-
terpri't, not to enact. It is true
that the construction put by this
Board ui)on the 1st sub-section
reduceil within very nari'ow limits
the ])rotection afforded by that sub-
section in respect of denominationai
schools. It may be that those who
were acting on Itehalf of the Konian
Catholic connnunity in Manitoba,
and those who either framed or
assented to the wording of that
enactment, were under the impres-
sion that its scope was wider, and
that it afforded |)rotection gieater
than their Lordships held to l)e the
ca.se. But such considerations can-
not properly inlluence the judgment
of tho.se who have judicially to
interpret a statute. The (piestion
is, not what may be suppo.sed to
have Jeeu intended, but what has
iH'cn said. More complete effect
might, in .some cases, be given to the
intentions of the legislature, if
violence were done to the language
in which their legislation has taken
.shape, but such a course would, on
the whole, be (piite as likely to
defeat as to further the o1)jeet which
wa.s in view. Whilst, however, it
is necessary to resist any temptwtion
to deviate from .sound rules of con-
struction in the hope of more
completely satisfying the intention
of the legislature, it is quite legiti-
mate where more than one con-
struction of a statute is possible, to
select that one which will best carry

out what ai)ii«'ars, from the genernl
scope of the legislation and ijic
surrounding circumstances, lo imvc
l)een its intention.

" With these preliminary ob.scf.
vations, their Lordships proceed tci
consider the terms of the 2nd mid
.'{rd suli-sections of sec. 22 of the
Act of 1H70, upon the construction
of whieh the cpiestions submitted
chiefly depend. For the reasons
which ha\t' been given, their Loni-
ships concur with the majority of
the Supreme Court in thiui{iiig
that the main issues are not in any
way concluded either by the dwi-
sion in Barrett's case, or by any
principles involved in that decision.

"At the outset this (|iu'>tion
presents it.-iclf. Are the 2nd imd
.'Ird sub-.sections, as contended by
the respondent, and affirmed liv
some of the judges of the Su|ircnic
Court, (h'si^ned onlv to enforce the
]>rohil)ition contained in the 1>I sidi-
.secfion ? The arguments agiiiii.xt
this contention appear to their
Lordships coiu-hisive. In the first
place, that sub-section needs no
further provision to enforc(^ it. It
imposes a limitation on the legislu-
tivt; powers conferred. Anyennct-
nient contravening its provisions is
beyond the coniiR'tency of the pio-
vincial legislature, and, theiel'orc,
null and void. It was so decided
by this Board in Barrett's east'
[previous C4ise]. A doubt was then'
suggested whether that appeal wus
competent, in consequence of the
provisions of the 2nd .sub-section,
but their Lordships were satisfied
that the provisions of sub-sees, l!
anil 3 did not ' oix'rate to withdraw
such a question as that involved in
the ca.se from the jurisdiction of the
ordinary tribunals of the country.'
It is hardly necessju-y to point out
how inq)robable it is that it shonid
have been intended to give a con-
current remedy by appeal to the
Governor-General in Council. The
inconveniences and difficulties
likely to arise, if this double remedy
were o[)en, are obvious. If, lor
example, the Supreme Coiut ol

B.N. A. ACT, s. 93.~APP. TO GOVERNOR.

381

Caiiiulii. niul this Coiiimittco on
iiM|iral, ilcclaii'd ail ciuictniciit of
till' Li';;isliiluri' (if Miiiiitolia rclat iii<j
Id I'duifitiiiii 111 1m> ititra rirvs, and
till' (rdvcriiDi'-Cii'ni'nil in ("omicil,
on nil iipiii'iil to liiiii, considiTcd it
tiltm riir.s; wliaf would lia|)p('ii ?
Iftlii'piiivincial Ic^islatiirrdccliiicd
III yield to liis \ i(nv, as would
iiliiiost ciM'tiiiidv and most naturally
1)1. till' ciisc, rocoursc could only lie
liiiil t(i tile I'ai'iiauii'Ut of tlu? l)o-
iiiiiiion. Hut the J'arliauicnt of
C'limida is only cuipowt'it'd to li'j;is-
liiti' as fni' as tlic circunistann's of
llu' casi' ro(|uiiv ' for llic due
execution of flic provisions' of the
2:!iiil section. If it were to Icgislat*?
ill siicli a case as has been suppo.sed,
its le<;isliition woidd necessarily be
(leeliircd iilfni rirex by tlie courts
which liad decided that the pi'o\i-
siiiiis of the section had not been
violated by the lefiislature of the
province. If, on the other hiiiid,
llie (Tdvernor-deneral declared a
[iioviiicial law to l)e iiifnt rircs, it
would be an ineffectual declaration.
It could only be made I'fl'ectual by
llie action of the courts, which
would have for themselves to deter-
iiiinetliei[iiestion which he decided,
and if they arrived at a different
louehisiiiii, and pronounced the
iiiactnient iiltni rirrx, it would be
none the less null and \oid because
the Oovernor-tteneral in Council
liiul declared it infra vires. These
cnnsidei'atioiis are of themselves
most coij;eiit to show that the L'lul
siili-section ought not to be con-
<triii'd as giving to parties aggrieved
an a)ip('iil to the Cxovernor-tTeneral
ill Council concurrently with the
right to resort to the coui'ts in case
tile provisions of the 1st sub-section
are contravened, unless no other
dnistriictioii of the sub-sections be
ivasoiialily possible. The nature of
the iviiK'iiy, too, which the 3rd snb-
-I'l'tion provides, for enforcing the
ilwision (if the (Tovernor-Genernl,
>troiiorlv coiitirnis this view. That
iTinedy is either a provincial law or
1 law passed l)y the Parliament of
(.'aiiada. What would be the utility

of passing a law for the pni'pose
merely of annulling an enactment
which the or'V.uaiy tribunals would
without legislation declare to be
null, and to which they would re
fiis(! to iiive effect ? Such legisla-
lation would indeed be futile.

" So far the matter has been
dealt with apart from an examina-
tion of the terms u\' the 2nd siib-
.sectiou itself. The considerations
adverted to would siicm to justify
any possible construction of that
sul)-section which would a\oid the
conseipieiK.'cs pointed out. But
when its language is exam.ned, so
far from presenting any d.'. ulties,
it greatlv strengthens the co.:(dusion
suggested by the other parts of the
section. The first sub-section is
confined to a right or jirivilege of a
'class of persons' with respect to
denoniinational education ' at the
rnion,' the 2nd sub-section >\[>-
jilies to laws aft'ecting a right or
))ri\ilege ' of the Protestant or
iloiiian Catholic minority ' in rela-
tion to education. If the object of
the 2n(l sub-section had been that
contended for by the respondent,
the natural and obvious mode of
exjiressing such intention would
have been to authori/e an ai)peal
from any Act of the provincial
h^gislatnre affecting ' any such right
or privilege as afor(\sHid.' The
limiting words ' at the Union ' are,
Iiowe\-er, omitted ; for the expres-
sion ' any class of persons ' there is
substituted ' the Protestant or
Roman Catholic minority of the
Queen's subjects ' ; and, instead of
the words ' with respect to de-
nominational schools,' the wider
term ' in relati(Ui to education ' is
used.

" The 1st sub-section invalidates
a law affecting pn^judicially the
right or ])rivilege of ' any cla.ss ' of
persons, the 2nd snb-s(>ction gives
an appeal only where the right or
privilege affected is that of the
' Protestant or Roman Catholic
minority.' Any class of the
majority is clearly within the pin--
view of the 1st sub-.sectiou, but it

liiiopTiv i:
.Att.-Gkn. (jk
Manitoiia.

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t ■:>

Unopiiv I'.
Att.-Okn. of
Manitoiia.

li'i

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3fi2 B.N.A. ACT, s. 03.— PERILS APPREHENDED.

.Kcpins cqiiiilly I'lciir tliiit no cliiss of
the Profcstiiiit or Calliolic iiinjofity
would lin\(! II lonts sttnidi loii|)|ii'iil
under tlit> 2n(l suit-section, liecanse
its rifjiits or |iri\ile^es liiul Iteen
affected. MoieoNcr, to lirin^ n
cn.se witliin that snh-section, it
wonld l>e essential to show tliat a
rif^lit oi' |tri\ile<fe liad Iteen *al'-
IVctod.' Could tiiis lie said to lie
tlie case hicause a Noid law iiad
lieen pa.ssed, which pnr|ioitcd to do
soniethin<i, liut was wholly inefTec-
tual ? To pi'ohihit a paitieidar
enactment, and render it ultnt
vires, sui'clv picvt'Uts its att'ectin"^
any rif^hts.

" It would do violence to sound
canons of construction it' the same
na'aninff wei'c to lie attributed to the
very different lan<;ua^e ein|iloyed
in the two suli-sections.

'* In their Lordships' opinion, the
lind sub-section is a substantive
enactment, and is not desi<>;nrd
niei'ely as ;\ nienns of enforeinj^ the
provision which precedes it. The
(juestion then arises, does the sub-
section extend to i'i<jhts and privi-
lej^es acquired by le<j;islatiou subse-
(pient to the Uniiin ? It extends
iu terms to ' any ' v\g\\X or pri\ ilej^e
of the miiioiity ;iffected by an Act
pa:"Sed by the leijislature, nnd would
therefore seem to embrace all ri<j;hts
and privileges existing at the time
when such Act was passed. Their
Lordshiiis see no jn.stidcation for
[Hitting a limitation on htugua<i;e
thus luilimited. 'J'here is nothing
in the surrounding cireumsfances,
or iu the apparent intention of the
legislature, to warrant any such
limitation, (.^uite tlie contrary. It
was iM'ged that it wouUl be strange
if au appeal lay to the Governor-
(jcueral iu Council against an Act
passed by the provincial legislature
because it abrogated rights con-
ferred by previous legislatiou,
whilst if there had been no previous
legislation, tlie Acts complained of
would not only liave been intra
vires but could not have afforded
grouud for any appeal. There i.s no
doubt force in this argument, but

it admits, the"'' 'iordships think, of
an answer.

"Those who were sli|)iilniiii;;
for the provisions of sec. 'J2 iis a
condition of the Cnion, and tlios'
who gave their legislative usseiit td
the Act by which it was lironf^lit
about, had in \ iew the perils tlini
apprehended. The immcdiiiieiidoii.
tion by (he legislntni'c of mii vA\\.
catioual system obnoxious eitlu-i
to Catholics or Protestants would
not be contemplated as |i(issihli'.
As hiis been already slated. \\\v
Konian Catholics and I'ii>test;mi>
in the province were about e(|!iiil in
number. It was impossible at thiit
time for either ])arly to ohtiiin
legislative sanction to a sclieinc of
education obnoxious to the oilier,
The estalilishnu'nt of a system cil
public education in which lujih
parties would concur was pniliiiMv
then in immediate prospect. Tlie
Legislature of Manitobn lii.st met
on the 15th of March 1S71. Ontlir
.'{rd of Ma\ following the Kiliini-
tion Act of 1871 received the roviil
asM'iit. IJut the future was luiccr-
tain. Either Roman (^itholics or
Protestants might become the prc-
liondeiiiting power in the lejjisla-
ture, and it might under such
conditions be impossible for the
minority to prevent the creation iil
the public cost of schotils, wliicli,
though acceptable to the iiiajoiitv,
could only l)e taken advantage nf
by the minority on tiie terms of
sacriiicing their I'herished convic-
tions. Tla- change to a Romiiii
Catholic system of ]iulilic scliools
would have been regarded with as
much distaste by the ProtestiMit<(if
the pro\ ince as the change to an
unseetarian system was by tlic
Catholics.

" Whether this explanation he llic
correct one or not, their Lordsliiiis
do not think that the diflicnlly
suggested is a sufficient warrant fur
departing from the plain iiuaninj;
of the words of the enaetnu'iit, or
for refusing to adopt the construc-
tion which apart from this objeetiou
wouUl .seem to be the right one.

B.N. A. ACT, s. 03,— LIMITED I'OWKRS.

383

"Tlii'ii' L()i'(lslii|is Iwiiifj; of opi-
nion tliat the t>iiii('tiii('iil wiiii'li
I'ovcrns tilt' prcsKiit cast' is I lie
•J2ml si'clioii <)t' till- Muiiitoha Act,
il is uiiiii'<'<'s^<iir_v to I'clVr nt any
|,.nj;tli l<> til'' ai'j;miu'iils di'iivcd
Irmii till' provisions of sec. !i;{ of
till' Urilisji N'oilii Aini'i'i<'ii Act.
Hm il ''t as thcv tliiow lif,'itl

(III til. .', tlii'V tlo not in tlicii'

Liinl^liips opinion weaken, Inil
iiillic r sti'cnjitlicn, tlu' views derived
IVoiu il sillily of the latcreiiactinent.
it is admitted tliat the lird ami
llli sul)-seclions of sec. !).'{ (the
latti'f of which is, as lias lieeii oli-
M'l'vcil, identical willi snl)-sec. li
ul' sec. :ili of tlie Manitoba Ael)
wi'i'f not intended to lia\c etfect
iiii'ivlv when a proviiu^ial le<;isla
liiiv had exceeded the limit im-
|iiinmI DM its powers l)y sidi-.scc. 1.
iiir sah-sec. .'i ^i\cs an appeal lo
till' (TOMTiior-Ueneial, in it only
wiiia'c a system of separate or dis-
Miiliciit schools existed in a pro-
vince ;■ the time of the ITiiion,
liiit ;■' hero ill any province
Mlrli tern was 'thereafter

iMiil... oy the legislature of

till' |iriivinee.' It is manifest that
this relates to a state of thinjj;s
nnwA hy iiost-lTnioii lejjjislation.

II WHS said it refers only to acts or
ilit'isioas of a ' provincial antho-
iliy,' and not to acts of ii |iro-
vincial Icjiisliitnre. It is nniiecessiiry

III ili'teriiiine this point, but their
liDidsliips nmst exjiress their dis-
Miit fnim the ai'f^niiit'iif that the
iiKi'ition of the words ' of the
li'iislatare of the province' in the
Manitolia Act show that in the
liiitish \orth America Act it could
ii»l Iwvt! licen intended to coiiii)re-
!ii'iiil tile le<:!ishitnres under the
^vonls • liny provincial authority.'
Wlictlicr they he so coniprehended
"!■ not has no bearing on the point
iiiiiiK'diately under diseiission.

" It was argued that the omission
fwiiitbe 2nd .sub-sec. of sec. 22 of
lliL' Manitoba Act of any reference
'u II system of separate or dissen-
tient schools ' thereafter established
i)v the legislature of the province '

.Manitiiiia.

wus unfavoiiriible to the contention Miimin r.
of the appellants. This argument Att.-Okm. of
met with some favour in the coni't
below. If the words with which
tin; .'{rd sub section of sec. *X\ colll-
incnces had been found in sui>-
sec. 2 of sec. 22 of the ManitoiNt
A<'t, the iiinission of the following
words would no doubt have been
important. Ihit the reason for the
(liU'erence between the sub-sectioilS
is manifest. At the time the Do-
minion Act was passed a svsumu of
denominational schools adapted to
the demands of the ininoi'iv ex-
isted in some provinces, in otiiers
it might thereafter Im" cstablishc i
by legislation, whilst in ^lanitobii
in 1870 no such .system was in
operatiiai, and it could only come
into existence by being 'thereafter
established.' The words which
preface the light of appeal in tl •
,\ct creating the Dominion woiih
therefore have been ([iiite inappro-
priate in tlie Act by which Mani-
toba became a jirovince of the
Dominion. Unt the terms of the
critical sub-section of that Act an;,
as has been shown, (|uite general,
and not made sulijcet to any con-
dition or limitation.

" Uefore leaving this part of the
case, it may be well to notice the
argument urged by the respondent
that the construction which their
Lordships ha\e [)ut ii))on the 2nd
and .'{rd sub-sections of sec. 22 of
the Manitoba Act is inconsistent
with the power confi'rrcd upon the
legislature of the province to ' ex-
clusively make laws in relation to
education.' The argnnient is falla-
cious. The power confcrretl is not
absolute but limited, ft is (;xer-
ciseable only 'subject and accord-
ing to the following provisions.'
The sub-sections whii^li follow,
therefore, whatever be their true
construction, (h-line the conditions
under which alone the provincial
legislature inav legislate in relation
to education, and indicate the limi-
tation.s imposed on, and the excep-
tions from, their power of exclusive
legislation. Their right to legis-

til

!■ M

I I' !1

Uropiiy f.
Att.-Gen. or

.A[AN'1T011A.

hm !

si >

384

B.N A. ACT, s. 93 —POWER TO REPEAL.

late is not iiuleod, properly spenk-
iiifi;, exrlusivp, for in tlie case
s[)ot'ifi('(i in sub-Sfc. .3 the Pnrlia-
nicnt of Canada is authorized to
legislate on the .same subject.
There is therefore no siieh ineon-
sistencv as was sun;p;e.sted.

" The learned Chief Justice of
the Supreme Court was much
pressed by the consich ration that
there is an iidierent lifjht in a
lefjislature to repeal its own legis-
lative acts, and that 'every pre-
sumption nnist be made in favour
of the constitutional right of a
legislative body to repeal the laws
which it has itself enacted.' He
returns to this point more than
once in the course of his judgment,
and lays down as a maxim of con-
stitutional construction that an in-
heivnt right to do so cannot Im"
tleemed to In- withheld from a
legislative body having its origin
in a written constitution, unless
tl"^ constitution in express words
takes away the right, and he states
it as his opinion that in 'on-
stnnng the Manitoba Act the
Conit ought to procei'd on this
principle, and to hold the legis-
lature of that provini'e to have
aV)solute powers over its own legis-
lation, untrammelled by an_\ appeal
t J federal authority, unless it could
find some restriction of its rights
in that respect in express terms
in the Constitutional Act.

"Their Lord.ships are unable to
conciu' in the view that there is
any pivsnmption which ought to
influence the mind one way or the
other. It must 1h' iemenil)«'re<l
that the provincial legislatui-e is
not in all respects su[)reme within
the province. Its legislative poAver
is strictly limited. It can deal
only with matters declared to l)e
within its cognizance by the British
North America Act as varied by
the Manitoba Act. In all other
cases legislative authority rests with
the Dominion Parliament. In re-
lation to the subjects sj)ecified in
sec. 92 of the British North
America Act, and not falling with-

in those set forth in sec. 91, ilic
exclusive power of the provincial
legislature nuiy be .sjiid tii 1)(>
absolute. But this is not so as re-
gards education, which is sepiuatc-
ly dealt with and has its own cddi.
both in the British Xorth Anu'ijca
Act and in the Manitol)a Act. It
may be .said to be anomalous tlmt
such a restriction as that in (|ui's-
tion slumid be imposed on tlic free
action of a legislature, but is it
more anomalous than to grant to a
minority who are aggrieved hv
legislation an a])peal from the legis-
lature to the executive autiioritv.''
And yet this right is expressly anil
Iteyond all controversy conl'cii'cd.
If, upon the natural eonstinetlon
of the language used, it slmnid
appear that an appeal was pei'.
niitted under eireumstanccs in-
volving a fetter upon the power of
a i)rovincial legislature to re|)eal
its own enactments, their Lonl-
shij)s .s'c no justification for a
leaning against that construction.
nor do they think it makes any
difference whether the feltcr is
imposed by express words or liv
lU'cessfU'y iinplicatiini.

" In truth, however, to deter-
mine that an ap)>eiil lies to the
(loveruor-fieneral in Council in
such a ca.se as the present, does mil
involve the proposition that the
[)rovincial legislature w;is unable
to repeal laws which it had |)assed.
The validity of the repealing Aet
is not now in question, nor tliat it
was effectual. If the deeision Ite
favourable to the appellants the
consequence, as will be jiointed
out presently, will by no incan-
!»' -essarily be the rep-al '■' iln
A(ts of 1890 or the le .•inictntrnl
of the prior legislation.

" Bearing in mind the eirouni-
stances which existed in 1S70, it
does not api)ear to their Lordships
an extravagant notion that in cre-
ating a legislature for the province
with limited powers it should have
lieen thought exjx'dient, in eas<'
either Catholics or Protestants 1h •
came i»reponderant, and rights

B.N.A. ACT, 8. 93.— SUMMARY OF SCHOOL ACTS. 385

ol' t'tliuration so
iicccssiirv to pi./toct the

wliit'li lintl oonip into existence
undiT different circnnistances were
iiiterffivd witii, to jjive the Do-
minion I'iirliiiinent power to lejji ■

];lt(' I1|I()M iiiiitte

I'lir as wa^

I'rott'stant or Catiiolic minority ns

the case ini^^ht be.

" Takin<; it then to bo established
tliiit tlic 2n(i sub-section of sec. 22
of tlic r^IiinitolMi Act extends to
Hsrlits and privileges of the Koniiin
Ciitluilic iiiiiiorityiiequired by legis-
lation i;i the province after the
I'nion. the next question is whe-
ilii r any such right or privilege
has iH'on affected by the Acts of
IS!tO ? In order to answer this
(|ni'stioii, it will be necessary to
oxaininc soniewlmt more closely
limn has iiitherto 1h.hmi done the
svstPin established by the ei rlier
li'ljislatiou as well as the chaufje
clfirted I)y those Acts.

" Tiie Manitoba School Act of

1>*71 pnnided for a Board of

Ediii'atidii of not less than 10 nor

iiiorc than it niendiers, of whom

out' half were to be Protestants

and the other half Catholics. The

tun sections of the Board nn'ght

luwt at any time separately. Each

Nction was to choose a chairman,

ami to have under its control and

iiiaiiii;.'cin('nt the discipline of the

^iliiKiJs of tiie section. One of the

I'mlistaiit members was to bi' ap-

Ihiintcil su|)erintendent of the Pro-

liMaiit schools, and one of the

Cailiolic iiK'iubers superintendent

nl tlif t'atliolic schools, and these

uvo Were to be the joint sec-

ivtaiics of the Boaril, which was

to v'kvt the books to be used

ill till' seiiools, except those having

ivtVivncc to religion or morals,

wliidi were to be prescribed by the

>"tions respect ively. The legis-

laiui' grant for common school

"Imation was to Im? appropriated,

"ii'iiiniety to support the Protes-

tiiiit. the other moiety the Catholic

■^lioiils. Certain districts in which

ill'' iHiinilation was mainly Catholic

»|iv to l)e considered Catholic

*liiiol districts, and certain other

ti 3340,

Manitob.\.

districts where the population was Brophy i>.
nniinly Protestant were to bo eon- ^'"'•-C^en. of
sidered Protestant school districts.
Every year a meeting of th(' nude
iidiabitants of each district, sum-
moned l)y the su]»erintenilent of the
S(!ction to which the district be-
longed, was to a|)point trustees,
and to decide whether their contri-
butions to the stipport of the school
were to be rai.sed by subscription,
by a collection of a rate |)ei'
scholar, or by assessment on the
pro|)erty of the district. They
might also decide to erect a school
house, and that the cost of it should
be raised by assessment. In case
the father or guardian of a school
chiltl was a Protestant in a Catholic
district, or vice versa, he might
send the child to the school of the
nearest district of the other section,
and in case he contributed to the
school the child attended a sum
eipml to what he would have been
bound to ])ay if he had l)elonged to
that district, he was exempt from
payment to the school of the dis-
trict ill which he lived.

" Acts amending the education
hiw in some res])ects were passed
in subsetpient years, but it is aot
neces.sjiry to refer to thei-., as in
1881 the Act of 1871 and these
amending Acts were repealed. The
Manitoba School Act, 1881, fol-
lowed the sanu! general lines as
that of 1871. The number of the
iJoard of Education was fi.ved at
not niore than 21, of whom )2
were to W Protestants and 9
Catholics. If a h'ss nund)er were
api)ointed the same ndative pro-
portion was 1h' observed. The
Board, as liefore, was to res(dve
itself into iwo sections, Protestant
and Catholic, each of which was to
luui" the control of the schools of
its section, and a// the books to l)e
used in the schools under its con-
trol were now to 1«' selected by
each section. There w«'re to be,
as iH'fore, a Protestant and a Ca-
tholic .superintendent. It was pro-
vide<l that the establishment of a
school district of one deuouiinution

B B

i:i .;.-,: i

386

B.N.A. ACT, 9. 93.— POLICY OF ACT.

Brophy v.
Att.-Gen. of
Manitoha.

MJi.

U ■

■ i ' h

I pi

■ri

■■•I .■ « '

! •'

I 1

v| ■

;

[■

8honl(l not prevent the estRblish-
iiieiit of a school district of the
other (lenoniiimtioii in the same
place, and that a ProtestJint and
Catholic district niifrht include the
same territory in whole or in part.
The sum a])pro[)riated hy the l»'<>;is-
latnre for connnon school purposes
was to he divided between the Pro-
testant and Roman Catholic sec-
tions of the Board in proportion to
the number of children between
the ages of tive and fifteen residing
in the various Protestant and
Roman Catholic school districts in
the province where schools were in
0[)eration. With regai-il to local
assessments for school purposes, it
was i)ro\id(>d that the ratepayers
of a school district should pay their
respective assessments to the schools
of their respective denominations,
and in no cast^ was a Protestant
ratei)ayer to lie obliged to ])ay for
a Catholic school, or a Catholic
ratepayer for a Protestant school.

" The scheme emlKwlied in this
Act was modified in some of its
details by later Acts of the legis-
lature, but they tlid not affect in
substance the main features, to
which attention has lu'en called.
AVhile traces of the increase of
the Protestant relatively to the
Catholic po|)idation may be seen
in the course which legislation
took, the position of the Catholic
and Protestant portions of the
comnnniity in relati<m to educa-
tion was not substantially altered,
though the State aid which at the
outset was divided equally lH'twe<'n
them had, of course, to Ite adjiisted
anil ma<le proportionate' to the
school i)opnlatiou which each sup-
plic'

"Their Lordships jiass now to the
Department of Kducationand I'ui)-
lic Schools Acts of 1890, which
certainly wrought a great change.
Lender thcformer of these Roman
Catholics were not entitled as such
to any repi-esentation on the Board
<»f Education or on the Advisory
Boar<l, which was to authorize text
l>ooks for the use of pupils and to

prescril)e the forms of religions
exercises to im' used in schools.
All I'rotestant and C^Jtholie sihoo!
districts Avere to be subject to the
provisions of the Public Scliool>
Act. The public schools weiv nil
to be free, and to be entirely iion-
sectarian. No religious exercises
were to be allowed unless con-
ducted according to the regulntions
of the Advisory Board, a-id vvjt'
the authority of the school trustees
for the district. It was made tlie
duty of the trustees to take pes-
session of all public school pro.
])erty which had l)een acquircil or
given for public school purposes in
the district. The nuniicipal conn-
cil <tf every city, town, and villiij;e
was directed to levy and collect
upon the taxable property within
the municipalitv such sums jis
might be requuv ' by the ])nlpli<'
school trustees for school jiurposes.
N"o mmiicipal council was to linve
the right to exenqit any proiiertv
whatever from school taxation.
And it was expressly enacted tlwt
any school not conducted according;
to all the provisions of the Act, or
the regulations of the l)e[Kutnient
of Education, or the A(lvis(M'v
Board, should not be deeiueil n
public school within the iiieaiiinu
of the law, and that such seiuml
shoidd not i)articipate in the lei;is-
hitive grant.

" With the policy of these Act"
their Lordships are not coiieenied.
nor with the reasons which led to
their enactment. It may lie tliat
as the jtopulation of the provinee
iH'came in proportion i.iore Inrjielv
J'rotestant it was found inerei\«-
ingly (iiifieult, especially in sparsel\
populated districts, to work tiie
system inaugurated in ISTl.t'Vcn
with the modiflcntions introdneed
in later years. But whether llii-
1)0 ,so or not is inunaterial. Tl''
.sole question to be detenniiied is
whether a right or privilege which
the Roman Catholic nn'uority pii-
viously enjoyed has been alfeetiHi
by the legislation of IHW. Their
Lordships are unable to see how

B.N.A. ACT, s. 93.— NEW POSITION OF CATHOLICS. 387

this question can receive any bnt
an nfflrinative answer. Contrast
the position of the Boinau Ca-
tholics prior and snbsequent to
the Acts from whicli they ai)peal.
Before these passed into law there
existed denominationnl schools, of
which the eontrol and nianagenient
were in the hands of Koman Ca-
t'.iolics, who could select the books
to 1h' used and determine the cha-
racter of the religious teaching.
These schools received their pro-
|)ortionate share of the money con-
tiiliuted for school purposes out of
the genenil taxation of the pro-
vince, and the money raised for
these purposes by local assessment
WHS, so far as it fell upon Ca-
tiioiics, applied only towards the
support of Catholic schools. What
is tlie position of the lioman Ca-
tholic uiinorify under the Acts of
isno? Sehools of their own de-
nomination, conducted according
to their views, will receive no aid
from tile State. They nuist de-
[H'ud entirely for their support
upon the contributions of the
IJoiiian Catliolic conuiiunity, while
tlie taxes out of which State aid is
granted to the schools j)rovi(U'd for
hy tlie statute fall alike on Ca-
tiiolies and I'rotestants. More-
over, wiiih' the Catholic inhabitants
remiiiii liiibie to local assessmein
inr school [turposes, the proceeds
of that assessment are no longer
liestiiied to any extent for the su|)-
l«irt of Catholic schools, but aftbrd
lhi> means of maintaining sciiools
wliieli tliey regard as no more siiit-
■Mi- for the e<lucation of Catholic
iliililren than if they were distinc-
tively Protestant in ilieir character.
"In view of this comparison it
iloesnot seem possible to say that
the ri<;lits and privih-ges cif the
Ihiiiian ("atliolie minority in rela-
tiiiM t(i edneation which existed
I'li'ir to lSi)() have not been
alfeeleil,

"Mr. Justice 'I'aschereau savs
[-^ S. f. !{., p. 577] that the
I'^'wlation of IHOO having been
i"cv(K;ul)ly belli to Im' intra virex

cannot have ' illegally ' affected any Brophy v.
of the rights or privileges of the Att.-Gen. op
Catholic minority. But the word -^Ia'^toda.
' illegally ' has no phice in the sub-
section in (piestiou. The api)eal
is given if the rights are in fact
affected.

" It is true that the religious
exercises prescribed for public
.schools are not to be distinctively
Protestant, for tliey are to be
' non-sectiirian,' and any parent
may withdraw his child from them.
There may be many, too, who
.share the view expressed in one of
the affiihivits in Barrett's case, that
there should not be any conscien-
tious objections on the part of
Boman Catholics to attend such
.schools, if adequate means be pro-
vided elsewhere of giving such
moi'al and religious training as
nmy be desired. But all this is
not to the pur[)o.se. As a matter
of fact, the objection of Boman
Catholics to schools such as alone
receive State aid under the Act of
1890 is conscientious and deeply
rooted. If this had not been so, if
there hatl been a sy.stem of public
education acceptable to Catholics
and Protestants alike, the elaborate
enactments which have been the
subject ot so nuK'h controversy and
consideration would have been un-
necessary. It is notorious that
there were acute differences of opi-
nion between Catholics and Pro-
testants on the education question
prior to 1H70. This is recognised
and emphasized in almoi.t every
line of those enactments. There
is no doubt (jither what the points
of difference were, and it is in the
light of these that the 22nd section
of the Manitoba Act of 1870, which
was in truth a parliamentary com-
pact, must be read.

" For the reasons which have
been given llii'ir Lordships are of
oltiniiui thai tb(> liiiil siib-seetion of
sec. 22 of the ^Manitoba Act is the
governing emu'tment. and that the
appeal to the flovernur-General in
Council was admissii)le by virtue
of that enactment, on the grounds

BB 2

I!-' '

♦!■». !■

:i ! i

388 B.N.A. ACT, s. 93.— JFTMSDICTION' OF. GOV.-GEir

Bropiiy !'.
Att.-Gev. op
Manitoba.

I n I

i: ,

set forth in the memorials and
petitions, inasmuch us the Acts of
1890 affected rights or privileges of
the Kouiun Catholic; minority in
relation to c<lncation within the
meaning of that sub-section. The
further question is sulimitted whe-
ther the Governor - General in
Council has power to make the
declarations or remedial orders
asketl for in the memorials or peti-
tions, or has any other jurisdiction
in the premises. Their Lordships
have decided that the Governor-
General in Council his jurisdiction,
and that the appeal is well founded,
but the particidar coinse to be
pursued nuist be determined by
the authorities to whom il has been
committed by the statute'. It is
not for this tribunal to intimate
the precise steps to be taken. Their
general character is suHiciently de-
tined by the 3rd sub-section of sec.
22 of the Manitoba Act.

" It is certainly not essciitiiil
that the statutes I'cpealed h\ tlio
Act of 1890 should be re-enactpd,
or that the precise provisions of
these statutes should again bfiimdo
law. The system of educutioii
end)odied in the Acts of 1890 no
doubt connnends itself to, and ade-
quately supplies the wants of, tlu'
great majority of the inhabitants
of the province. All legitiniiilc
ground of complaint would lie ic
moved if that .system were smi)1)1i-
mented by provisions whicli wouM
remove the grievance upon wliidi
the appeal is founded, and wcic
modified so far as might be iieccs-
sary to give effect to tliesi' prci-
visions.

"Their Lord.ships will Jiunilily
advise Her Majesty that the ()iii's^
tions submitted should be answi'ivd
in the nuumcr indicated by tlio
views which they have exprcssod."

No costs of the appeal.

Piii

; I

1 U i'i 'i i ' '"

11;

!J f

Jjegislation for
uniformity of
laws in three
provinces.

Uniformity of Laws in Ontario, Nova Scotia, and
New Brunsmck.

94. Nohvithstanding anything in this Act, the Par-
liament of Canada may make provision for the imi-
formity of all or any of the laws relative to property
and civil riglits in Ontario, Nova Scotia, and Xeir
Brunswick, and ol^ tlie procedure of all or any of the
courts in those three provinces, and from and after tlio
passing of any ^Vct in that hehalf the power of the Pai-
liament of Canada to make laws in relation to any
matter comprised in any such Act shall, notwithstand-
ing anything in this Act, he unrestricted ; hut any Act
of the Parliament of Canada making provision for such
uniformity shall iiot liavc efFcct in any province unless
and until it is adopted and enacted as law hy tlic lotris-
lature thereof.^

I The province of Quebec is rights " in Quebec is in the main

onutted from this section, for the the French law as it existed at tiu'

obvious reason that the hiw which time of the cession of C'anadii.

gOM'rns the " proi)erty and civil and not the English law wliiili

Ol'TK
IS 0

ClIM'S

a;,'ricii
till' I
licro,

1»' nil
\y\\\ il
and

of tl

art. 3. ;

Rone

tioihs 9

B.N.A. ACT, 9. 95.— CONCURRENT LEGISLATION. 389

prevails in the other provinces.
And llie words, "proimrty and
civil rights," are u.sed in the siune
sense as in suh-sec. 13, sec. 92,
and there seems no reason for pre-
suming that contracts and the
rji'lits iirising from them were not
intended to he included in this pro-
vision for niiiformity.

See Citizens' Insurance Co. v.
Parsons, 4 S. C. 11. 215; in P. C.
Nov. 20, 1881, 7 App. Cas. p. 110;

51 L. J. P. C. 11; 45 L. T. 721.

[.S'ee Note, sub-sec. 13, sec. 92.]

It therefore seems to have been
considered that the Dominion had
no power to legislatt! under this
.section in regard to contracts sub-
ject to the Quebec law .so as to
alter that law.

See Notes, " Divorce " and " So-
lemnization of Marriage," sub-sec.
25, sec. 91 ; sub-sec. 12, sec. 92.

Agriculture and Immigration.
95. Ill each province the le£?islatiire may make laws Coneurrent

., ., . ,.. powers of legis-

in relation to agriculture in the province, and to immi- lation respect-
gration into the p'-^vincc; and it is herehy declared ^^"^"'" ^^^'
that the Parliament of Canada may from time to time
make laws in relation to agriculture in all or any of the
provinces, and to immigration into all or any of the
provinces ; and any laAV of the legislature of a province
relative to agriculture or to immigration shall have
effect in and for the province as long and as far only
as it is not repugnant to any Act of the Parliament of
Canada}

UJnrton, J. A., said, in Loc.vi,
Omo.N A(T Cask, Sept. 23, 1S91,
IS 0. A. W. p. 590: "The two
("i>es mentioned in .sec. 95 are
ai;nenltnre and inimigrntion where
the powers are concurrent, and
iieif, of eouise, [)rovision had to
lie made i'or one or other giving
way in the event f)f their dashing,
and so it is espe<'ially provided

that the local legislation in these Local Optioh
two cases shall be valid only so far Act Cask.
as it does not conflict with that of
the Parliament of Canada." And he
goes on to say this is the only sec-
tion where such provision is made.
[See Note, sub-sec. 9, sec. 92.]

Aliens have no legal right to 1m^
allowed to hind in the c(donies.
l^Sce Notes, p. 03, and sub-sec. 14,
sec. 92.]

VII. — Judicature.
96. The Governor-General shall appoint the judges ^Vj"]^*^*"*
of the superior, district, and county courts in each
province, except those of the courts of probate in Nova
Scotia and A^ew Brunswick}

' Sre American Constitution, The Minister of Justice, John

iirt. 3. s. 1. Macdonald, concurred in a report

Rend with this section the sec- made by his deputy, 14 June 1879,

tious 97, 98. 99, and 100. that it was beyond the powers of

S 2340. *"

390

B.N.A. ACT, B. 96.— DUTY OP JUDGBS.

'Wil 1 ' :

i>'

i • • ■ i'l ' '

■ ;ii.

[niii. :

' ! r

■Mr ' r

i':; ! r i: ■,• ^ |

I'l' M
111 . . '

P' 'ii

jilt

ii; N,

i'-iiii!

Ill

III

the local legislature to allow to the
jiulfjes of the county court fees for
Ijerfonning their duties as such
judfjes while they at the same time
received a fixed salary from the
Dominion Governmeut for the jjer-
formancc of those <luties. Refer-
ence was made to an Act of Ontario
in 1^69, 32 Vict. c. 22., whereby
the sum of 81,000 each year was
allowed to the jutlges of the superior
courts, i«iyable out of the moneys
of the province. The opinion of
the law officers of the Crown in
England was taken, and they were
of opinion that the Act was incom-
IK'tent. The then Minister of Ju.stice
expressed his own opinion tliat the
judges of the siij)erior courts could
not properly, and without a breach
of the provisions of the B. N. A.
Act, receive emolument for per-
forming the judicial duties from
any jiowcr but the power which
apiK)ints and pays them the legal
.salary attached to the office. Prov.
Leg., 1886.

On the Duty of .TrnoEs. —
Rbo. v. Bubaii. Lord Selborne, in Reo. t\ Buraii,
June 5, 1878, Wheeler's P. C. Law
55 ; 3 Api). fas. p. 004, .said : " The
. established courts of justice, when
a question arises whether the pre-
scrilH'd limits" [of the provincial
It'gi.^lature] " have l)een exceeded,
nnist of necessity determine that
question ; and the only way in
whic h they can [ffoperly do so
is by looking to the terms of the
Reo. I'. instrument by which, affirmati\ely,

IJKNKKTT. the legislative poweis were created,

and by which, negatively, they are
restricted. If what has l)een done
is legislation within the general
.scope of the affirmative words which
give the power, and if it violates no
express condition or restriction by
which that power is limited (in
which category would, of course, lye
included any Act of the Im^jerial
Parliament at variance with it), it
is not for any court of ju.stice to
inqn>:e further, or to enlarge con-
sti'uctively those conditions and re-
strictions."

In Marbuby v. Madison, Fob

180.3,5S.C.R.(U.S.)(lCrancl,),
p. 177, it was said, \)er Curiam : " It
is em|)hatically the province and
duty of the judicial department to
sjiy what the law is [see ^•.n^.^' given,
sec. 41]. Those who apply the rule
to particular ca.ses, must of ncccssitv
e-ipound and inter|)ret that rule. If
two laws conflict with each othor
the courts must decide on the
operation of each. .So if a law bo
in opposition to the Constitution ; if
l)oth the law and the Constitution
apply to a particular case, so tbnt
the court must either decide tiiiit
ca.se conformably to the law, disiv-
garding the Constittitioii, or c ,ii-
formably to the C^onstitution, dis-
regarding the law ; the court must
determine which of those confliutinf;
rules governs the ca.se. Thi.sistlic
very essence of judicial duty. If,
then, the courts are to regard tlie
Constitution, and the Constitution
is suiH'rior to any ordinary Act of
the legislature, the Constitution and
not such ordinary Act nnist govern
the case to which they both ai)|)ly."
And again, " The judicial power of
the United States is extenclcd to all
ca.ses arisnig under the Constitution,
('oidd it be the intention oi' tlioso
who gave this [rawer, to .sjiy tbat in
using it the Con.stitution should not
be looked into ? That a case aris-
ing under the Constitution .should
l)e decided without examining the
instrument under which it arises?"

In Reg. v, Bennett, 20 Oct,
1882, 1 O. R. p. 462, Cameron, J„
held that the legislature of the
province of Ontario had power to
(R. S. O. c. 71) provide for the
qualification and appointment of
justices of the peace. That learnid
judge said : " Justices of the \wm
are [mrt of the system of the ad
ministration of justice in the pro
vince, and therefore under sub-SR'
14, sec. 92, of the B. N. A. Ad,
the right to legislate as to their
appointment is expressly confernnl
upon the legislature of the pro-

B.N. A. ACT, s. 96.— CONST. OP LOWER COURTS. 391

vince." " This view is supported by
tlie provision contnined in sec. 96,
giving the appointment of judges
of the superior, district, and coiinty
courts to the Governor-General,
and no provision being niatle for
tlie appointmr nt of any sul)ordinate
officer or authority in connection
with the arlministration, indicating
the intention of the Imperial Par-
iinmeut, under the assignment of
the |K)wer to make laws i-elating to
the luhninistration of justice to the
local legislature, was to give .such
legislature full power to legislate as
to the appointment of all otficers
connected with the administration,
except tlu^ judges, in respect to
whose a])pointmunt the appointing
power was expressly indicated."

In Wilson v. McGciue, Feb. 3,
1883, 2 0. R. 118, the question
arose, Could the Ontario Legisla-
tnre authorize a county court judge
to act in any county other than
that he was appointed for. It was
held it could. The Local Courts Act,
R S. 0. 1877, c. 42. s. 16, allowed
any |)art of Ontario to be divided
into districts or groups of counties
by proclamation of the Lieutenant-
Governor. Sec. 17. After the
crcntion of a district, the several
connty courts, courts of general
session, division courts, &c., and all
other courts which a county court
may hold in each county, shall be
held by the judges in the district
in rotation. Sec. 18. The judges
shall meet and arrange which of
tlie said courts in a district shall be
held by each judge throughout the
year. The judges so arranged, and
the county court judge of Lambton
inider such arrangement held a
Middlesex Division Court, and made
an order which gave rise to the case,
it l)eing alleged it was ultra vires in
that the judge ivcted out of Lamb-
ton. Held by Hagarty, C J., and
Uimerou, .J. (Armour, J., dissent-
'"g), that, as the load legislature
had power to abolish such courts
and to establish others for the dis-
pos(d of the like or other classes of

business, it had the right to apjioint Wilsor v.
officers to preside over them, and McGuibb.
the order was not ultra vires.
Hagarty, C.J. , .s»«d : "The Legis-
lature of Ontario has complete
power over the division courts as
to their existence, constitution, re-
arrangement, &c. In the case of
the superior and county courts, the
general Government interpose in
the power of appointing the judges.
The county judges appointt^l by
the Crown have presided o^■er these
division courts from their estab-
lishment. Tlie provincial legisla-
ture, since its e.stnblishnient, has
made many changes in those coiuts,
enlarging their jurisdiction and
making provisions for enforcing their
process over projjerty and [htsous
outside their ordinary boundaries,
but have never interfered with the
principle of having them presided
over by a county court judge, and
even before confederation (C. S.
U. C. c. 19. ss. 16, 17) the judge
of another county court could act
in the case of illness or unavoidable
absence." *' 1 do not feel that in
the case liefore us any difficulty is
created by the fact of the judge of
Lambton being an officer appointed
by the Dominion expressly for that
county. It was urged be could
not i)erform judicial duties beyond
its limits. It is sufficient here to
say that he has in fact performed
them inider the authority of the
provincial legislature, and that the
latter, having complete power over
the division courts, have designated
him, amongst other named function-
aries, to preside in the court."

In Ganong v. Bayley, May
1877, 17 S. C. N. B. (1 Pugs, and
B.) 325, it was heltl by Weldon,
Fisher, and Wetmore, JJ. (Allen,
C.J , and Duff, J., dissenting), that
sec. 1 of the New Bnniswick Act,
39 Viet. c. 8., establishing parish
courts, which authorized the Lieu-
tenant-Governor to appoint a com-
missioner to try causes in the court
established, was not ultra vires.

Weldon, J., said : " At the

! ; I

Oanono V,
IUylbv.

ii!!'

ill.

,ii

W ' ■: I

II .'ii

Oj-.<oho v.
Baylev.

• ■

^ ■■ 1 !

l!'^'^

i i

i,!i, ■■ i

392

B.N.A. ACT, 8. 96.— LOCAL EXECUTIVE.

time of jMissinj; of the Confedora-
tioii Act tliPiv were (superior eoiirts
ill all the i)rovince.s whieh were
embraced in the confe<leia<ry.
There were district eoiiits in
Canada. Li Lower Canada there
were the districts of (laspe, of
Sngnenay, and of Chicontiini; tliere
wen* county coiu'ts existing in
Upper Canada, and eonscfiuently
were established in NewBrunswick,
Nova Scotia, and Prince Edward
Island. It appears to nic that these
were the courts that the Governor-
General was to appoint tiie judges
to, when established, or as vacan-
cies may occm*, and lo provide for
them salaries, allowances, and jmmi-
sions. There were also, at the
pivssing of the Confederation Act,
Commissioners' Courts for the sum-
mary trial of small cases, in what
is now the province of QnelH>c, and
there were Division Courts in On-
tario. No referenc<i is made to
them in the said Act. The several
acts establishing these small courts
in the several provinces, prior to
confederation, also provided for the
appointment of officers thereof, by
the several local executives, and
were not referred to or expressly
provided for in the said Act. I am
therefore of opinion the local legis-
lature in passing the Acts for the
recovery of small debts in the re-
spective [NU'ishes of the county, and
providing for the appointment of
persons to carry out the provisions
thereof by the local executive, was
within its powers, and in such case
the executive authority continued
as it existed at the Union, unless
the same was alttned by the pro-
visions of the Union, wliich is not
expressly done. There were many
officers which the Governor-General
had the appointment of vested in
him as the Queen's representative
lo make in the provinces, but tliat
power may hv limited l>y the pass-
ing of Acts by the local legislatiu'cs,
as.sentcd to by the Governor-Gene-
ral, and any Act creating an office,
and veMing the appointment in the
Qovornor and Executive Council,

would l)e valid, if not ilisaliowed
by the Governor- General." 'J'his
principle has been recognised by
the Colonial Secretary in 1872, and
carried out in various Acts. "And
tiie power of ai)poinfuient wiiicii
was in tlu; Crown, to be exercised
by the representative of the (^lU'cn,
has been transferred to the Lieu-
tenant-Governor. See 31 Viet,
c, .'}(). for appointment of nicnilii'is
of tiie h'gisiative council ; ',i'2 Viet.
c. 92. for ai)pointment of jiistiecs
of the [teace; 32 Vict. c. !).'{. re-
lating to marriage licenses; ,'5(1 Viet,
c. 3. respecting appointment (if
Notaries Public ; .'JG Vict. e. 21. re-
specting theappointmentof (Queen's
Coinisel ; 32 Vict. c. (5. relating to
the [>r(!.sentation of Rectors of tlie
Ciuu'ch of England in tlie pr(i\ inee;
31 Vict. c. 1. appointment of iwiiec
magistrate in and for the city of
Fredericton, and giving liim jnris-
diction in civil suits to the extent of
S 10. Some of these Acts are .'pe-
cially ap|)roved of by the Governor-
General, others left to their opera-
tion. As the Act establishing parisii
courts has not been disallowed liy
the Governor-General as direeted
under the 90th section of the Union
Act, I am of opinion it was within
the power of the legislature to pass
the Act."

Fisher, J., said : Sub-section 14
" of .section 92 of the B. N .A. Act
confers upon the locid legislatiire.s
the power of providing for the con-
stitution, maintenance, and organi-
zation of pro\incial courts, so tiiat
the authority to legislate upon tlie
subject is clear. Having so legis-
lated, had the local legislature |)ower
to give the appointment of tiic
persons who are to try the causes
or administer ju.stice in the courts
to the Lieutenant-Governor, or
must such appointments vest in the
CJovernor-General ? This depends
npon the meaning of sections 96,
97, 98, 99, and 100 of the B. N. A.
Act, and con.striiing all these sec-
tions together — and in that way they
explain themselves. It is obvious
that it was the intention of the Act

lli >

B.N.A. ACT, 9. 07.— HIGHER CLASS JUDGES.

393

!»•

to vest in the Goveriior-Genoral
oiilv the appointniont of the .jiitlg«'s
of till! county courts, mid those of
a more extensive orCiiiiadiiin juris-
iideiiee. At tile time of tiie
Union, tiiere were in existence
courtsaiid judj^esof courts, answer-
iiit' tlie description given in tiiese
sretions, having both civil and
criminiil jurisdiction, ft bi'ing re-
(IniredtlmttheysliouidbeapiHiinted
from till' bar, sliowing that tiii'v
must liiive received a professional
I'llacation, evidences the mind of
the lef^islature as referring only to
jiidijes of tiic liigiier class. Then
tlie eliarging the revenues of
Caiiiuia with their .salaries and pen-
sions of itself shows that the sec-
tions all refer to a higher class.
When tlie B. N. A. Act came into
o|»eration, there were in Novii
Scotia and Xew Brunswick courts
for the trial of small causes in the
(liifereiit localities, similar to those
antiiorized by the Act of 39 Vict.
e, 0., presided over by justices of

the iieace, the (dass of persons who Ganoho i-.
are now appointed ; and the only ^A^f-^if'
difference is, that instead of every
justice of tli(! jieaci- having power
to try, it is now restricteil to such
of the justices as the Lieiitenant-
(Jovenior shall siieeiallv apiioint
therefor, and they have jnrisdietiou
to a larger amount. In Nova
.Scotia the Act that gave one justice
power to try causes not exceeding
S2t), authorized any two justices to
try to the amount of J<SO. AH
these Acts are very similar in their
provisions as to the mode of juris-
diction, and persons appointed to
preside in the court they establish.
'J'lie justices of the pence who arc
the judges of these courts — siyletl
commissioners — may 1m' farmers,
merchants, mechanics, or any other
class, and it docs seem to me to bo
very preposterous to suppose that
they come within the category of
judges specified in the different
sections of the B. N. A. Act to
which I have referred."

97. Until the laws relative to property and civil Selection of

^ ^ " ju'lgps in On-

riglits in Ontario, Nova Scotia, and New Brnnsioick, turio, &e.
and the procedure of the courts in those provinces, are
luade uniform, the judges of the courts of those pro-
vinces appointed by the Governor - General shall be
selected from the respective bars of those provinces.^

' The Manitoba Legislature at-
tempted to jiass an Act to consti-
tute and incorporate the Law
Society of Manitoba. The Lieu-
tenant-Governor, 14 April 1872,
reported the Bill seemed premature,
heeaiisc if the provisions of the
Union Act, which confines the se-
lection of judges iu any province to
the liar of that province, should be,
as he thought they were, applicable
to Manitolia, it would not lie de-
sir.ilili. to force tlus admission here
or to restrict the Government at
Ottfiwa iu their .selection of judges
to such persons as the existing

98. The judges of the courts of Quebec shall be Selection of
selected from the bar of that province. ^Quebw!"

members of the Manitoba bar
might think fit to admit. Another
objection was the power given under
the Bill to the bar to regulate their
own fees.

Ill an Act to establish a supreme
court in the province of Mani-
toba, sec. 5 provided that no chief
justice or pui.sne judge of the
Supreme Court should be appointed
unless such per.son is able to speak
both the French and Ilnglish lan-
guages. The Minister of Justice,
11 April 1873, considered this Bill
ultra vires.

i' u

394 B.N. A. ACT, s. 101.— THE SUPREME COURT.

Tenure of office QQ^ Tho judgos of thc siipcrior courts shall hold
superior courts, offico tliiriiig goo(l bchavioiiv, hut shall be removable

by the Governor-General on address of the Senate and

House of Commons.^

' An Act of thti Mmiitoba Loj^is-
liitiiro for tlif rc<fistratioii of voters
(c. G.) provided, Kces. 21, 22, that
any jud^c refusing or neglecting
to perform any dnty imposed upon
liim by the Act shall lie lialili^ to a
fine. 11 April 187;}, the Minister

of Justice (Macdonald) reported
that the nS)lh section of the H. N. A.
Act provi(h'd fully for the ninnncr
in wiiicb the judges could lie culled
to account, and their position sIkmiM
not be otherwise atfected by sucii
legislation us that in »iuestiou.

Salaries, &e. of
judge.s.

General Court
of Appeal, &c.

100. The salaries, allowances, and pensions of the
judges of the superior, district, and county courts (ex-
cept the courts of probate in Nova Scotia aiul New
Brunswick), and of the Admiralty courts in cases where
the judges thereof are for the time being paid by
salary, shall be fixed and provided by the Parliameut
of Canada}

1 The provinces cannot give any allowance to the judgc-^.

101. The Parliament of Canada may, notwithstand-
ing anything in this Act, from time to time provide for
the constitution, maintenance, and organization of a
general Court of Appeal for Canada, and for the estab-
lishment of any additional courts for the better ad-
ministration of the law^s of Canada}

^ Before the institution of the
iSujjreme Court, the Dominion Con-
troverted Elections Act, 1874 [Can.
Act, 37 Vict. c. 10.], conferred the
trial of election petitions on the
judges. It was held not ultra
vires. See Valin v. Langlois,
ante, p. 18 (from Supreme Ct.
l)om.) ; ThclK'rge r. Landry, ante,
p. 46 (from the Superior Court,
province of QucIh^c) ; and Kennedy
V. Pnrcell, 7 July 1888 [see ante,
p. 314], an apiieal from the Su-
preme Court of the Dominion.

The Supreme Court of Canada,
the highest court in the Dominion,
was established in 1875 by the Do-
minion Act 38 Vict. c. 11. [amen-

ded since by R. S. C, 188(i, c.
135.; and 54 & 55 Vict. c. 25.
See below, pj). 405-6.] It lias an
appellate civil and crimiiiHl juris-
diction. In controverted eleition
petitions it has an appellate juris-
diction. Also questions between
the Dominion and the provinces,
or between two or more provinces,
on condition the legislature pass an
Act to that effect, may be enter-
tained by it.

In the Dominion Liquor License
Act, 1884, there was a special sec-
tion (26) to the effect that the Go-
vernor-General iu Council might
refer any question to the Supreme
Court for itH u^iniou, and The Do-

B.T^.A. ACT, 8. 101.— APPEAL BY REFERENCE. 395

minion r.Thc Four Pi-ovinops, /« re

The Liiinor Lit-onsi-H Acts, 1HH3— i,

witf iii'in'l "ixI'T 'lii^ section in

188'); I'lit tjic court {{live no t'onniil

oiiinioii, wliich lias been considered

a (riciit want in detei iniiiin'; what

iiiicortii(iii;,'ht was |mssiii<^thn)iif;li

tiirir liditlsliips' minds. Now

51 k 55 Vict. (Doni.) e. 25. s. t

provides for f liat, alteriuf; .sec, \\1 of

U, S. C, 188(5, c. i;}5, and .'{H Vict.

c, 11. 8. 52, mill Ontario lias

11 liico law, 53 Vict. c. 1.'}. [.srt'

kloK, |.|.. U)5-G, 401-2], eiiact-

iuw in effect tliftt any matter witli

n'lVieiiee to which the (lovcrnor or

Liciiteiiiint- Governor in (,'oiincil,

ipsiK'ctively, see fit may he referred

lo tile Siiiirciiie Court (Ontario

I'dui'Is), for iiearinjj. It is provided

till' jiidfjcs are to <;ivellieir reasons,

mill tliiit nil lioii^ii the ojiinions of

till! court are advisory only, for all

puriioscs (if appeal to Her Majesty

ill I'oiiiicil these are to 1m! treated

IIS a tiiml judgment of the sjiid

(•(uirts between the parties. Leave

to apjieal has alway.s l)eon asked

Iroiii the Judicial Committee in

Kiifjiaiid on appeal in these refer-

inics, as ill all other appeals from

till' .Siiiircnie Court of Canada.

Tliiis the last Manitoba school

I'iisi' was heard [.««■ .sec. 5)3], and

The Att.-tien. ot Ontario v. 'riie

Att.-Gcn. (if the J)oininion and

Hri'wci's and Distillers in 18!)5 \_see

Apiieiiilix C].

Ik 1{. S. C, 188(5, c. 135. s. .38,
cither House of I'arliament may
refer to the court any private Bill
lor its report thereon.

Tile Sii|)reme Court of Canada
liohls its sittiii<;s tliree times a year
at Ottawa, in February, May, and
Oetolxn". It is presided over by o
Chief Justiceand five puisne judges,
two of wlioiu must hav»( been
lueuilieis of the Quebec bar, and
all of whom must reside within five
miles of the city of Ottawa.

Bysi'e. 2G, U. S. C. c. 135., it is
provided an appeal shall lie direct
I" the Sii[»reme Court from the
jmlguient of the court of original
iurisdiction by consent of parties.

Where two i)ersons claimed a Privy Counril
sum of money in nn ap|>eal to the l^rnotico.
SupriMue Court, and it appearing
that oiK^ really represented the Oo-
verniiieiit of Nova Scotia, a special
agreenient was niadi^ whereby that
(JoverniiKMit wert^ to come in and
be a party to the cause, and 1m'
bound liy it. The agreement finally
said : " Tiie order to 1m' made pur-
suant to this agreement shall Ih'
consiih-red a final disposition of nil
contentions, whether now in litiga-
tion or not," arising under the
artiicles which are the subject of
dispute. The Privy Council re-
fiisi'd to give siM'ciiil leave to ap-
peal, such reference to the S. C.
liiing in this nature of an arbitra-
tion, and that the S. C. was not
acting in its ordinary jurisdiction
as a court of appeal. Att.-Oen. of
Nova Scotia v. Oregorv, Cassels'
S. C. J). 727; in P. C. April 3,
188(5, 11 App. Cas. 225); 55 L. .J.
P. C. 10 ; 55 L. T. 270.

The Exchecpier Court is presided
over by a single judge, and can sit
any.vhere in Canada. It is also a
Colonial Court of Admiralty [51
& 55 Vict. (I)om.) c. 2!).], hav-
ing such jurisdiction throughout
Canada and its waters, whether
tidal or non-tidal, or luiturally
navigabh' or artificially made .so,
and all per.sons shall haviiall rights
and remedies in all matters con-
nected with navigation, shiiiping,
tnule, or commerce, as may be had
or (enforced in any Colonial Court
of Admiralty under the Imi>crial
Colonial Court of Admimlty Act,
185)0, 53 Si 5t Vict. c. 27. [see post,
Appendi.v A]. LiM-al Courts of Ad-
miralty have been est4iblished in
ncconlance with the Dominion Act
in QuelHH', Nova Scotia, New
Brunswick, British Columbia,
Prince Edward Island, and To-
ronto district, the limits of which
are elastic and may Ik; altered by
the Governor in Council.

By Crim. Pro. Act [see R. S.
of C. c. 174.] provision is iiuule for
the reservation of Crown cases.

It is important to st^ite that

396

B.N. A. ACT, s. 101.— PROVINOTAL OOTTRTS.

i i> ;M

i- I?

Direct Hight of AH the provinco.s onn nppoiil fo
^Pl*"'' tlio Pi'ivv ('ouiu'il witluiiit f;oiii}i

throii};!! the S. C. ot'C. — F()rni)|i»iil
fi'oin Oiitiii'io, .ire hcfoir ; Trom
Qiu'hcc, below; from Nova Scolin,
liidox to Loii. (3az., " papi-r printed
l>y P. V. 20 ISIaich \H(V,\ " ; IVoiii
New Urimswick, Oiiici' in ("ouncil,
lion. Gaz., 7 Dt'c IHoL', p. 3o7') ;
Manitolta, Order in ('imnell, OIT.
Can. (Jaz., A|'ril .W, 181I2, p. 20 II ;
North-West Territories, Order in
Couneil, ihuL, Mareli 5, lHi)L»,
]). 1(51(5; and Prinee Edward Is-
land, In- Poyal Instruetions, l.'{ Dec.
IH.'JH; see fn re Monckton, 22 June
1H;}7. 1 Moo. 1'. V. 455; fn re
raml.ridfje, 11 Feb. 1811, 3 Moo.
P. V. 175, and Kelly r. Snlivan.
From Newi'oinulland, 1)V Chiirtor
of Justice; nvc .'51 (leo.".'?. (1701)
e. 20., ante, p. 6.

Tile Supreme Court of Ontaiio
consists of Sni)reme Court of Judi-
cature, two division.s, called irif;;li
Court of Justice for Ontario, and
Court of Appeal for Ontario. The
first division is composed of Q. U.,
C. P., and Chancery. Q. 11.
and C. P. have each a C. J. and
twoJTid<;cs. 'J'he Chancery Court
\» presided ovei' by a Chancellor ami
three judjjes. Th<> jud<;es of On-
tario, as well as tho.se of (juehec,
Nova Scotia, and New Brunswick,
are selected from the liar of their
own province.

Special questions are also re-
ferred to the Court of A|)peal, On-
tario, under 53 Vict. (Ont.) c. 13.;
see Att.-Gen. of Ontario v. Att.-
Gen. of Dominion, in re a,ssi};n-
ment.s and i)rcferences, 0 Mav
1803, 20 O. A. K. 480; in P. C.
Feb. 21, [180-1] 5 A. C. 180;
03 L. J. P. C. 50 ; 70 li. T. 538.
And In re the Local Oi)tion Act,
1801, 18 O. A. K. 573, ante,
p. 205.

The rif^ht of appeal straight to P.
C. from Ontario is ; — In a case where
the matter in controversy exceeds the
sum or value of S4,000, as well as in
a ease where the matter in question
relates to the taking of any anniuil
or other rent, customary, or other

fluty or fec>, or any like deninnd of
a general and public nature ntT(H't-
ing future rights, of wlmt viiliic
and auutunt soever the stune miiv
be, an appeal shall lie to Ilcr .Ma-
jesty in her Privy Council; aiiij
except as aforesai<l no appeal slmll
lie to ller Majesty in her I'riw
Council : R. S. ()., 1887, c. II. s. 1.

'I'he highest court of CJiicIhm' is
the il. B., with a C. J. ami ti\|.
l)uisue judges. The court Ixlow
the Q. H. is the Superior Court,
with a C. J. and 20 jmisne judges.
It nu y be noticed that in (^iieUc
it has Ik'CU held by the .liidicial
Committee that an advocate nniv
sue for his fees. Reg. v. DoiUn",
Jiilv 12, 1881, 0 Aiip. Cas. Tlo'
53 L. J. P. C. 85; 51 L. T. (Ki!),'

In No\a Scotia, the Chief .Jus.
tice of the Supreme ( 'ourf , tiie jiKJijc
in Eipiity, and five puisne jiiclgcs.

New Brunswick, the Chief Jus-
tice of the Suprenui Court, llic
judge in Kcpiity, and foui' puisne
jiulges.

In Manitoba, the Chief .lustiir
and three puisne judges.

In British Columbia, the Ciiiif
Justice and four puisne judges.

In Prince Edward Islaml, the
Chief Justice and two assistant
judges.

In the North-West Territories
there are fi\e i)iii,«ne judges (if tlic
S. C.

It may be important to glance at
the history of the jurisdictidu »!'
the various courts, and how and iiy
what Acts they wen* created, ll
will be only a glance, and ratlier
with the view of putting tln'
searcher on the track than to pvc
every item of knowledge in rospeel
of the constitution of these courts.

Previous to the (iivision of ''
province of QucIh-c into two |
vinces, Upper and Lower, In
ordinance 27 Feb. 1787, 27 Vtw. :,.
c. 1., it was stated that Hi.s Ma-
jesty has been pleased to signifj
his pleasure that appeals be admit-
ted to himself in his Privy Conucil,
in all cases of fines impo.sed for
misdemeanours, provided the tines

B,KA. ACT, s. 101— APPEALS AND VALUE.

307

so iiiiposcd iiiiioiiiil to or oxci'cd the
Slim of tl(M), tlio H))|iclluiit first
fjiviii}; jrood sfciii'itv lliiit he will
ctri'diiiillv |(i'osc(Mitt' the ii|i|tfal.

;il Gm. ;{. (ImiuTiMl), 17!)l.
(', ,'n.,t'otisi(lt'i'i'il the coiistitutioiml
clmitiT of the Caiiiulas. This Act
ilividcilthc |ii'{)vinei'()l' (Jiichcc iiiln
two |iiiiviiu'('s, I'piMT ami Lower
Ciiiiiidii. Si'c. 2 jtroxidt'd that in
ciicli |iioviii('i' thi'i'i' should be a
Li'ijislativt' Council and Ass(Mul)ly,
mill tiiat all laws jtasscd by the
It'irisiiiturcsof the i)fo\iuf('s rcspoi--
livclv, and asscutcd to by His
Majesty, should be " valid and
liiiicliiij; within the province in
wiiich the same shall have been so
piisscil." Sec. ,'}l provided the
Lrovcriior or i)erson adniinisterinj;
the f^dverniuent of each of the
siiid provinces respectively, to-
iji'tlu'r with such executive council
IIS shall he appointed by His
Majesty, shall bi' a court of civil
jiuisdietion within each of the said
priivinces for hearing and deter-
iiiiiiiiifl a|ipeals within the same,
. . . subject to further pro-
visioas as may be made by any
Act of the Legislative Council and
A^scnil)ly of either of the said
provinces, assenteil to by His
Miijc>ty, itc.

Till' Legislati\r Council and As-
sembly of Lower Canada passed
iIh'.'H (tee. :]., I7\y.i, c. ()., an Act
fur the division of the province of
Lower Canada, for amending the
jiiilicature thereof, and for repeal-
in;; certain laws therein men-
tiimcd.

Sec. 30 linntcd aj)peals to His
M.'ijcstx III Council from the judg-

iil ol provincial courts of

i|M'al to ciTtain cases. [Sec
"W,C.ofC P.]

•'And 1m' ■ urther emieted by
tlic authoriii aforesaid, that the
" :iacnt of "the said Court of Ap-
'~ of this province shall be
1 in all eases where the matter
lii dispute shall not e.veeed t" ■ sum
w value of £500 .sterhng ; nit in
cases exceeding that sum or value,
''"■ W'll as ill all east's where the

matter in (pa^stion shall relate to
any fee of olliee, duty, rent, revenue,
or any sinn or sums pavable to His
Majesty, titles to lands or tene-
ments, annual rents, oi' suidi like
matttfrs or things where the rights
in future may Ih' bound, an appeal
shall lie to His Majesty in His
Privy Council, though the imme-
diate sum or value appealed for be
less than .t'jOO stei'ling, provided
security be iirst duly given by the
ap])ellai.(. that be will elfeetually
prosecute his appeal and answer
the condtunnation, and also pa\
such costs and damages as shall be
awarded I)y His Majesty in His
Privy Council, in ease the judg-
ment of the said Court of Appeals
of this [irovinee be allirmed," i\Lc.

The section then proviih's that
in <'ase of reversal the respondent
shall not be called upon to retiu'ii
more than the net i)roceeds of the
execution, Ac.

Sec. 43. "Provuled always, ami
it is declared and enacted by tho
authority aforesaid, that nothing
herein contained shal' be construed
in any manner to derogate from
the rights of the Crown to erect,
constitute, and appoint courts of
civil or criminal jurisdiction within
this province, and to appoint, from
time to time, the judges and ollicers
thereof, a.s His Maj«'sty, his heirs
and successors, shall think neces-
sary or i)roper for tho eircumstjinces
of this province, or to derogate
from any other right or preroga-
tive of tho Crown whatsoever."
[See below, Cuvillier v. Aylwin,
Nov. 21, 1832, 2 Knapp, 72.']

The Code of Civil Procedure,
article 1178, provided: — An ap|)eal
lies to Her Majesty in her Privy
Council from final judgments ren-
dered in ap|)eal or error by the
Court of Queen's Hench :

(1) In idl cases where the nuitter
in dispute relates to any fee of
office, duty, rents, revenue, or any
■sum of money payable to Her
Majesty ;

(2) In cases concerning titks to
lands or tenements, annual rent.s,

Appiid friiiii

(iilel.ec.

■ t •

! I

! «

■ ^'1

II':

! _ j

■1

1 f

% \<'

I'll iS,

i 1

If !

Coile

111 iiiidcr
of J'ri).

'0.

398

B.N. A. ACT, H. 101.— AMENDMENTS TO CODE.

nnd (itlicr iiinttt'rs by wliicli tho
ii<];hts in fiituro of jmrtu's may bn

Hffci'tPtl ;

C.i) In all ciiscs wlierein tho
matter in dispute exceeds the sum
or value of live hnudrod pounds
sterlin}: [C. S. L. C. 1H(51, e. 77
8. 52].

Art. 6(X)9 of R. S. Q., IHHS.
"Tlie foliowinj; artiele is added
after art. 117H:— 117HA. Causes
adjudicated upon in review, wliieh
are susceptible of ap|«'al to Her
Majesty in Iler Privy Council, but
the ap[)eal whereof to the Court of
Queen's Bench is taken away by
arts. 1115a and 11 12a, may never-
theless be ajjpealed to Her Majesty
by observing the .same formalities
and provisi<;ns, and subject to the
sjune conditions, as in tlie ca.se of
jud<;nient> rendered by the Court
of Queen's Bench (appeal sitle),
and with the same effect, as if
every provi.xion of law, in relation
to apjK'als to Her Majesty from
jutlgments of the Court «>f Queen's
Bench, was enacted in this article
with respect to the Superior Court
sitting in review, its judges, its
ortitrei'.s, or their ofilce.

Arts, nil, 1115, 111.5a, as
amended by 51 Vict, (t^.) c. IH.,
run as follows : — Error may be
brought against any ju<lgment of
the Superior Coiu'l founded njtoii
a general verdict given by a s|)ecial
jury. It n'ust 1k' brought iM'fore
the Ct. of Queen's Bench sitting
in appeal. Questions of law only
can 1m' argued in error.

Art. 1115. I'niess otherwise
[n'ovided by statute, an app-al lies
to the same court [Ct. of Q. B.,
ai)iM»al side] u|)on any other final
judgment lendered by tht; Suinrior
Court, except in cases of rrrfioniri,
nnd in nuitters concerning nuinici-
|Md eorpoi itions or offices, as pro-
vide<l in art. lO'Xi.

Then follows tlie Art. 1115.4,
referred to idiove as altered.
Nevertlu'less, an .-ippeal does not
lie in cases in which iho sum
claimed is under .^2<)(), and in
which judgment lias Imm-u ren-

dered by the SuiK'rior Court sittiiv
in review ; nor shall u person who
has inscrilKid in review licforc
three judges in the Superior Court
any cause of the Sujierior Court
and on such inscription proceeded
to judgment, \>e entitled to iipix-a!
to the Ct.of Queen's Bench In:,, tn,
jutlgment of the Superior Court
sitting in review, if si.ch judguieut
confirms that rendered in tiie fir>t
instance.

Art. 1112 was substantially to
the sinne effect as the latter part of
art. 11 15a, "Circuit Cotirt" k'inj;
substituted for " Superior Court."

1179. Nev«'rtheless, the execu-
tion of a judgment of the Court of
Queen's Bench cannot Ix- prevcutcd
or stayed, unless the party agf^ricv-
e<l gives good and suflicieiit sure-
ties, within the delay fixed by the
coint, that be will effectuidly proM'.
cute the ai>|M>al, satisfy the coii-
dennuition, and pay such costs and
damages as may Im? awarded In
Her Majesty, in the ^vent of tlii'
judgment being confirmed. The
secin'ity nniy be received "oefoic
one of the judges of the Court of
Queen's Bench.

The sureties justify their sol-
vency upon the real estate wliiiii
is descriU'd in the bail bond. One
surety suffices if the real estate
which he descrilM's is e(|ual to the
amount of the security 'iver and
above all charges and hvpotliecs.

The judge who ii'ceives .sncli
secui- may order, "ither on de-
man s /•■ otherwise, the iiroilui'lion
of the registrar's certifieate, the
valuations rolls, ;»nd any other
doci'inents for the pnrpo.s' of the
.security, and is b;mnil to put snili
questions as he deems advisihlc to
the sureties, nnd such (pieslion^
and answers then-to may be taken
down in writing.

TIh' party appellant nuiy. Iiov-
(^ver, exempt him.vlf from liuiii.'*li-
ing .such security by depositing nii
amount ecpinl to that required for
tlie security, either in money, in
l)onds of the Dominion o.- of tlii"
province, or in municipal dclnMi-

B.N.A. ACT, 9. 101.— ONT. JURISPRUDENCE.

399

tuifs; tunl s"**'* moneys, hoiiilrt, or
ilclK'Hturi's arc (Icnosilod oitlicr
with till- clerk of the C'oiirt ot
(JiU'i'u's Bench, or with the sheriff,
as till' jiidjjc may direct. R. S. Q.,
ISSS, !irt. tJOlO.

Ontario Jurisprudence. — After
till' passing of 31 Geo. 3. e. 31.,
dividing Ul)[)er and Lower
('iiimila, the Le<^!slati;re of I'pper
(.'iinailii, or, as it is now, Ontario,
,«i>M'.l the 32 Geo. 3. c. 1., 15
Ort. 1702, which repealed U Geo.
3. c. 83., in so far as that Act
((instituted the laws of Canada a
lull' tii' decision in matters of con-
iiowrsy relating to pro])erty and
civil lights; and '>y sec. 3 enac-
uA tiiat in all matters of contro-
wisv relative to property and civil
riijlits roort should he had to the
liiH-s of Pjigland as the rule for the
ilci'isioii of the same. By see. 4, no-
iliiiig ill the Act was to 1h' con-
-tnicdto vary any of the ordinances
lKhM(l liy the Governor and
Li'irisli'.tive Council of Quehec [ivo-
vioiis to the division of the pro-
viiiifs otiierwise than as tluy are
;iH'(>ssarily varied hy the Act. Sec. 5.
All matters relating to testimony
andlcgal proof in the investigation
(i| fai't and the forms thereof in tile
yvi'i'al courts of law and eipiity
within the province shall he regu-
lated liytlie rules of evidence estali-
li«hcd ill Kngland. Sec. (5 provith-d
iliiit 11(1 alteration was to he made in
tlit'siiltsistiiig provisions respecting
i'iilu<ia>itical rights or dues within
llii' pidvinces, or with the forms
iif iiroccciling in civil actions, or to
till' iiirisdiciion of the C(>nrt already
oliihlished, or lo introihice any of
ilic laws of England res|H'ctiiig the
maiiiji'iiancc of the |K)oror n's|)ect-
iiii: liaiiknipts. By 32 Geo. 3.
'■2., all and every issue and issues
"t fiK't should Im" tried and doter-
'"'"'d l)v tile unanimous vertliet
' 1' jiiiors. 3.'J Geo. 3. c. 5.
ili'idt witii s(deinni/,ation of inar-
lii'lli'. 33 Geo. 3. e. H. estah-
H4'd the Court of ProlMite. 34
^''■'1 3. c. 2., 1704, »>stal)lished a
>'i|K'ii(ir court of t'vil Hud erimimil

jurisdiction, called the Com-t of Append from
King's Bench for Upper Cana<!a, O"""-!".
and that it should possess all such
powers and authorities as hy the
huv of Kngland are incident to a
.superior court of civil and criminal
jurisdiction, and do all things in
tis full and ample a manner as
done hy the King's Bcncli, Com-
mon Bench, or Court of Exche(pier
in Englanil.

By sees. 31 and 32, all records of
the late Courts of romnion Pleas
in that proviiu'e were to he trans-
mitted into, and deposited in, the
Court of King's Bencli.

A Court of Ai)peal, hy see. 33,
was to consist of the Lieutenant-
Governor, or person administering
the government, or tlu' Chief .Iiis-
tice of the province, together witii
two or more meinher> of the Ex-
ecutive Council of the province.

Sec. 35 provided that an appeal
should lie t<i the Court of the
Governor and Executive Council
from all judgments given in the
King's Bench where the matter of
controversy exceeded tlie sum of
£100, or' related t ) the taking
of any annual or other lent, cus-
tomary, or other duty, fee, or
any other su<'h like demand of a
general aiul piihlic nature att'ecting
future rights, of what value or
amount .soever the siiine may he,
upon pro[)er security In-ing given
hy the api)ellant that lie will
etfettiially prosecute hi.s appeal,
ans's'er the condemnation, anil
pay costs, iu case the sentence ap-
pealed from he coniirmed.

Sec. 30 dealt with appeals to
the Privy Council, and was some-
what similar to the words of ."U
Geo. 3. c. 6. s. 30. of Lower
Canada. [See above.]

It provided that the judgment
of the said Court of Appeal shall
he final in all cases where the mat-
ter in controversy shall not exceed
the sum or value of t'5(K) st 'rliiig,
hut in eases exceeding that amount,
as well as in all cases wheii' the
matter in ((uestion siiall relate to
the taking of miy aimual, or other

!l I

: I

400

B.N. A. ACT, 8. 101.— COURT OF ERROR.

Coiitrovoivic -
K'lweeii Duiu.
an I IVov.

iviit, fiistoiimn', or other duty, or
IVc, or nny otlu-r such like (leiiiund
of a genernl mid public nature
affectinij; t'litiire rifjlits, of what
value or amount soever the same
may he, iui appeal may lie to
His Majesty in his Privy Coun-
cil, upon proiM-r security bein^
{liven by the apiM-llant," &c., to
abide the ri'sult. This Act con-
tained no proviso as to His
Majesty's prero<;ative. District
Courts, having jurisdiction in
all iictions oi' contract t' >r sums
above U).v. and un<h'r .£15, were
established by Hi Geo. 3. c. ;{.
.Jurisdiction extended to £10 by
37 (}ei). 3. c. (5. in lU'tiou to i-ecover
a liquidated debt. 40 Geo. 3.
(ISOO) c. 1. (h'dared the criminal
law of England as it stood on
17 Sept. 1792 to 1m' the criminal
law of the province.

The Court of Krror and Apjx-al
was ct)nstituted in Upper Canada
bv 12 Vict. c. 03. s. 3^^. See
C. S. U. C. 1859, c. 13.

By sec. 9, C. .S. U. C. c. 13.,
the Court shall have an appel-
late <-ivil and criminal jurisdiction
throughout Up|H'r Canada, an<l
an ai>pcal shidl lie thereto from
all judgments of the Court of
(Queen's Bench and Conuiion
Pleas, and from all judgments,
orders, and decrees of the Court
of Chancery. 12 Vict. c. O.J. .s. 10.

IJy sec. "57, C. S. U. C. c. 13.,
appeals to Her Majesty in Her
I'rivy Council. The judgment of
the Court of Error and ApjH'al
shall be tinal where the nuitter in
controversy does not exceed the
sum or value of 84,000.

Sec. 5H. In a case exceeding
that amount, as well as in a ca.se
where the matter in (piestion relates
to the tiiking of any annual or
other rent, customary or other
duty, or fee, or any like demand
of a general and public nature
affecting future rights, of what
value or anu>unt soe\«'r the same
may 1n', an ap;ieal shall lie to Her
Majotv in Her I'rivy Council.
12 Vici. c. 03. s. 10.

Then by .sec. 59 the security for
costs to be proviiletl is .S2,()0().

Sec. 61 provided that sec. 10
shall apply to appeals, that is, ilr •
execution should not ' ;> slayiMJ ,.,
such cases witliout cfunpliaiuc
with the provisions set out in tlnii
section.

K. S. O. 1877, <•. 37. s. 1, pro.
vided that the Supreme Court jukI
Exchecpier Court of Canada, ( r the
Suiirenu- Court of Canada iilouc,
according to the provisions of the
Act of the Parlianu-nt of Cnniula
known as the Supreme ami K.\-
che<pier Court Act, 38 Vict, c 11..
shidl have juris<liction in tlie follow-
ing cases : —

(1.) Of controversies k'twecn tin'
Dominion of Canada and this |iri>-
vince.

(2.) Of controversies bciwccn
any other proviiu-eof tiie Doniiiiioii
which may have pa.s.sed an Ad
similar to this present Act and this
province.

(3.) Of suits, actions, or pro-
ceedings in which the pnrtio
thereto by their pleadings Imvi'
raised the cpu'stion of the valiilitv
of an Act of the Parliament of
Canada, or of an Act of the lujiiv
hiture of this province, when, in tlir
opinion of a jiulge of the court
i' which the .sime are pciiilins:.
such (piestion is material; and in
such ca.se the .said judge siiiill, al
the requiNst of the parties, and nmv
without such recpu-st, if he tliink>
fit, order the ca.se to Ik- remoyetl to
the Supreme Coiu't in order to tlic
decision of such question. [StT
R. S. O. 1887, c. 42.]

The Ontario Illicit Licpior SVIl-
ing Act, 1881, 44 Vict, c.27.s. 17.
gave a right of apjjcal fntma jml;'-
ment or decision of any of lln'
su|«'rior court.s, or any juil<;i'
thereof, upon any application to
(puish a conviction made nmlir
<•. 181. of R. S. O. 1877, orumlir
this Act, or to di.scliarge a prisoner
who is held in custo«ly under iiny
such conviction. But no gmli
apjH-ul lay from a single jut|n;(', or
if thi' court was umuiimous, mi-

■m

B.N.A. ACT, s. 101— CONSTITUTIONAL POINTS. 401

less the Att.-Gen. for Ontario shall
ccrtifv tlio point in (iisputc is of
suffii'it'Mt iniportanco to justify the
case l)fin<; appenlod.

Bv U. S. O., 1HH7, <•. 41. s. 52,
s.-s.'2, "The Hif^li Court shall have
jiiralittioii to entertain an action,
at the instant'o of either the Attor-
lU'v-Geiieral for the Dominion or
the Attorney-General of this pro-
ving, tor a (leelai-ation as to the
viilidity of any statute or any pro-
vision in any statute of this legis-
lature, though no further relief
shouhl 1h! prayed or sought; and
till' action shall Ik; dwnied suflici-
iiitly constituted if the two officers
al'orcsiid an' parties thereto. A
jiiilgiiieiit in the action shall be
aiipealiiblc liiic other judgments of
till' Court."

Tims the question as to the
iwwcr conrcrred on the Ontario
Liiuteiiuiit-dovernor of jmrdoning,
nistil ill the Att.-Gen. for the
Dominion r. Att.-Gen. of Ontario,
23 S. C. U. 45^ ; 19 O. II. 31 ; 20
0. R 222, was heard. And under
the following Act the ipiestion of
till' LiM'al Option Law was placed
Ulorc tile judges for tluur ojunion,
H 0. A. U. 572, miff p. 205.

Refinmr to Court Authorizetl.
The Ontario Act, IHSK) (assen-
itil to 7 April), 53 Vict, c, 13.,
intituled '• An Act for expediting
till' ikrisions of constitutional and
iitlier provincial (piestions," Hy
sr. 1 the Lieutenant-Governor in
l-'ouiicil may refer to the Higli
Oiuil, ora l)i visional Court there-
(il, ui' to the Court of Apjieal, for
liniiiiig or considering any matter
whiili 111' thinks lit to refer, and
ihf Court shall thereupon hear or
•'iiisidei' the same.

Cmrt to Cvrtif'jj Opinion.
^■v. 2. The Court is to certify
'II the Licuti'uant-Governor in
'"iimil it>i opinion on the question
"tiin'd, with the reasons tiierefor,
«lii(li aiv to 1m' given in like
'iiHiiiior lis in the cas«' of a judg-
iwMit in an ordinary action ; and
""} judge who differs from the
"I'inion of the majority may in

S 2140.

UonH, notifica-
tion of
Att.-Gen.

like manner certify his opinion. In Constitu
with liis reasons therefor, to the 'l"""' 1"^
Lieutenant-Governor in (.'ouncil.

Notice to Att.-Gen. of Canada.
Sec. 3. J;i case the matter re-
lates to the constitutional valitlity
of any Act which has heretofore
Ihh'u or shall hereafter l)e passed
by the legislature of this province,
or of some provision in any such
Act, the Attorney-General of
'^'■inada shall Ik* notified of the
i 'aring in order to be heard if

e sees fit.

Notice to Persons Interested.

Sw. 4. The Court shall have
|)ower to direct that any jierson
interested, or where there is a
class of persons interested, any
one or more |)ersons as repre-
sentatives of such class, shall be
notified of the he.nring, and such
persons shall 1h^ entitled to be
heard.

Appointment of Counsel t.. Argue
the Case.

Sec. 5. Where any interest
affected is not reiirescnted by
counsel, the Court may, in its
discretion, recjucst .•*onie counsel
to argue the case in such interest,
and the rcnsoiiable expense there-
of shall be paitl out of the Suitors'
Fw Fund or otherwise.

Sec. t). The opinion of the
Court .shall be deemed n judgment
of the Court, and an appeal shall
lie therefrom as in the case of a
judgment in an action.

Enactments appi, .'hie to
Appeals.
Sec. 7. In case of the matter
iH'ing apjicaled from the High
Court, or a Divisional Court there-
of, to the Court of Apjieal, sees.
2, 3, I, 5, <>, shall apply in like
manner as if the originnl reference
had iMfii to the Court of Appeal.
An apiM'id to Her Majesty in Her
Privy Council from a judgment of
any court on a reference under
this Act shall not lie subject to
the restrictions <'ontained in the
K. S. of this province res|HH'ting
ap^ieals to Her Majesty in Council.

C 0

402 B.N.A. ACT, s. 101— OTHER PROVINCIAL COURTS.

Nova Scotia.

I'l I

^ll 1 ; ! ■

S. C.S, New [These restrictions were : R. S. O.

Brunswick and iHS7,o. 41. In a i-n.se where tlieniut-
ter HI controver.sy i-xceeds the .sinn
or viihie of 84,000, ns well ns in the
ease where the nmttor in (inestion
relates to the takin<; of any annual
or other rent, enstoniary, or other
duty or fee, or any like demand
of a general and i)ul)lie nature
affecting future rights, of what
value or amount soever the same
may be, an appeal shall lie to Her
Majesty in Her Privy Council ;
and exeei)t as aforesaid no ajJiM-nl
shall lie to Her Majestv in Her
Privv Council. [See C.'S. U. C.
1859, c. 13. ss. 57, 58 ; 34 Geo. 3.
U. C. c. 2.] By sec. 2 .security
was to Ik! given in 82,000 to the
sjitisfaction of the court ai)pealed
from. By sec. 3, on security being
perfected, ext'cution to be stayed.
Sec. 4, jiractice ai)plieable to stay-
ing execution on appeals to Court
of Appeal to be ai)i)lical)le to
appeals to Her Majesty in Her
Privy Council. Sec. o dealt with
approval of security, an<l sec. G
recovery of costs awarded.]

New Brunswick. — There the
S. C. was established pursuant to
instructions given to the first C. J-
of the pro\ ince.

The commission to the first C. .T.
ran : Geo. the 3rd, &q., to our . .
well-beloved Geo. Duncan Lud-
low, Esq., greeting . . giving
and granting unto you full [lower
and authority in our said S. C. " to
hear, try, and determine all pleas
what.'^oever, civil, criminal, and
mixed, according to the laws,
statutes, and cu.stoms of that part
of our kingdom of Gieat Britain
called England, and the laws of
our sjiid ])rovince of New Bruns-
wick, not being repugnant thereto,
oud executions of all judgments of
our said court, to award and to act,
and do all things which any of our
justices of either Bench, or Barons
of the Exchequer in England, may
or ought to do ; and to make such
rules and orders in our .slid court
as shall 1m' judged usefid and con-
vt'uient, and as near as may 1k>
ogreeable to the rules and orders

of our Courts of King's Bench,
Common Pleas, and Exchoqmr in
England. To have, hold, exi rcisi.,
and enjoy the said oifice and |(]iicc
of Chief Justice of our Supicnu'
Court of Judicature of and in our
said provmce of New Brunswick,
with all," &v., rights and pri\ ilcjfcs.
[Sec Att.-Gen. i: I'.aillie, Fell. M.
1H12, 3 S. C. N. B. (1 K.it).
p. 453].

Nova Scotia was the siinic n^
New Bnniswick. R. S. X. .S„
1873, 4th series, c. 89. s. 1 cimctci
th(! Supreme Coiut shall iiiivc ihc
sauu^ powers as are excirix'd liv
the Courts of Queen Bench. Coni-
mon Pleas, Chani'ery, and V.s-
chequer in England. Sec 5. Tlir
E(|uity judge .shall ha\e jurisdic-
tion in all cases formerly cogniznlilc
by the Court of Chancery, and sii.ill
exercise the like powers, ami iijiiilv
the same principles of cfjuitv, lor-
merly administei'cd in tlml (iiinl.
In Uniacki! v. Dickson. Feb, 1)1,
1S48, 2 N. S. R. 287, Sir ,1.
Harvey, Ch., Hallibiuton, ('.J.,iuiil
Hill, J., it was held the still ntcs of
33 H. 8. e. .39. and 13 Eli/, c. I.,
which gave the Crown a lien u|iiiii
real estate of certain public nHlciiils
as a .security for their Uiiids to
faithfidly discharge their diilv,
were not in force in Nova Scotin.

Prince Edward Island.— Acts
were passed in 13 Geo. 3. c. ,'!. ;
2(5 Geo. 3. c. 11.; .35 (ho. ;i.
c. 7.; 59 Geo. 3. c. 3.: 3 Will. I.
c. 12. ; and were re^iealed liv \'l
Vict., 1849, c. 9., Laws P. K. 1..
Vol. 1, p. 573. The Act of 111
Geo. 3. c. 3., 1773, established ih.'
times and places of the Sii(iiviiii'
Court ; SIC IG Geo. 3., 1770, c 1 .
Laws P. E. I.,Vol. 1, p. 17. That
lust Act narrated that wlieivtis in
Novendter last the capitiil ct tin
island was invaded by twn provin-
cial privateers, who carried off lln'
commander-in-chief, the suivcvoi-
general, together with manv ivconl-
of the S. C, the public seal of lln'
island, and His MajestyV com-
mission, by riasoii of wiiich lli'
new C. J. could not procinc hi«
commi.ssion, nor the 8. C. sit until

?•!'. ■ii

B.N. A ACT, 8. 101 —PROVINCIAL COURTS. 403

25 .Time, when it oiipht to hnvo sat
on tilt' tliird Tuesday in Febniai-y,
tlirit'foif it enacted that all judg-
iiiciits (iciivered hy the caid court
sjioiild 1)0 deemed valid. See p. 396.
British Columbia. — Biiti><h law
(l.rlared in force, 1!) Nov. 1H5H.
See Ordinance, i'ollowin<r 21 & 22
Vict. c. 99.

As to S. C. in B. C. see C. S.
R. CV, IS77, ce. 51., 52., 53., and
c. 54., merging the S. Comts of
B. C. and Vanconver I.sland, and
Petition of Right Act, c. 59., and
('. S. B. v., IHSS, p. 241, e. 31.

Manitoba. — A Snprenie Court
was cstaltlished hy 34 Vict., 1H71,
c. 2. By 38 Vict., 1874, e. 12.,
"The Court of Queen's Bench,
Jlanifolm, shall decide and deter-
mine all matters of controversy
irlative to proi)erty and civil
ii};lits, according to the laws exist-
inj5 or estahlished and heing in
Knjrlanil, as such were, existetl,
iiiiil stood on 15 July 1870, so
liir as the same can l)e made
niiplicalile to matters relating to
|imi)prly and civil rights in this
piiiviiu'e." And the practice and
piwodurr in the said court and
coinitv courts in ^lanitoha were to
I'l' rt'j;ulated by the rules of evi-
ili'Mce and |)rocedure as in England
nil the aliove date, except where
till' Slid law.s, rides of evidence,
mid i)roc('dure may have In'en or
Irmit'ter shal be altered liy the
Miinitolia Legislature.

North-West Territories.— Ordi-
niiiicc No. 4 of 1878, for the
IMiiposc dl" fivil justice, formed
judicial districts in which courts of
livil jiiiisdiction were to be ludd,
lULsidcd (i\cr by a sti])endiary
iiiiij:i>tiatc, who hiid, subject to the
N.W. Territories Act.'^, 1875, 1877,
juiisdiction over all matters of
tivil law and eipiity, all matters of
will", and inlcstacy."

By the N. W. Territories Act,
3n Vi.t. (I).), 1875, c. 19. s. 59,
» tonrt of civil and criminal
jiirisdiition shall Ik- held in the
'^'id territories. By the N . W. Ter-
ritories Consolidation Act, 1880,
<3 Vict. (D) c. 26. 8. 70, each Bti-

jiendiary magistrate could exercise Courts of
all magisterial finictious apiwrtain- J^fs'i'toba.
ing to a justice of the peace or any
two justices; and shall also have
power to hear and determine any
charg against any person for any
crin;iiial offence alleged to have
been committed in the N. W. T.,
if in territory eastwards of the
Rocky Mountains, in territory not
officially ascertained u]) to British
Columbia. Sub-sees. 1 to 4 deals
with larceny, embezzlement, and
assaults, which are to be tned with-
out a jury. Sub-,sec. 5 was: " In
all other criminal cases the stijH'n-
diary magistrate and a justice of
the peace, with the intervention of
a jury of six, may try any charge
against any person or iK>rson8 for
any crime." By sub-sec. 7 the
sti|M'iuliary magistmte was to take,
or cau.se to be taken, in writing,
fidl notes of the evidence ; which
by sub-sec. 8, in a case of capital
conviction, are to be forwarded to
the Minister of Justice. By .sub-
sec. 10, any [M-rson arraigned for
trea.son or felony might challenge
six jurors. By sec. 77, a jMirson
conviet«'d of any offence punishable
by death may ai)peal to the Q. B.
Manitoba, which court shall have
jurisdiction to coidirm the con-
viction or order a new trial. [See
Riel r. The Queen, 10 Ai>p. Cjw,
C75.] By sec. 85, every sti[K>ndiary
magistrate shall have [wwer to hear
any claim, dispute, or dennmd, as
follows: — Sub-sec. 1. Where the
claim or demand is for a tort,
wrong, or grievance, in which the
amount claimed iloes iu)t exceed
i^odO, or if for a dtdit, iir on a con-
tract, in which the amount (daimed
does not exceed .*<1,(MK), in a sum-
mary way, and without the inter-
vention of a jury. Sub-sec. 2 :
In all other claims, disputes, or
demands than those abuve men-
tioncil, or for the recovery of the
possciision of real estate, if neither
party th-maud a jury, in a sinnmary
way ; but if either party demand a
jury, then with a jury not exceed-
ing six. The section went on to
say there was to be no hearing of

CC 2

'(■■'

•\]\

t' 'i

404 B.N. A. ACT, s. 101.— SUPREME COURT & APPS.

r'<

Canada's Sii-
premc Court.

; h

! ! I

! ■ I • .

I ■ I

an action for any gambling debt
or for any «l»*bt for intoxicating
liquor. By «cc. HH, apical from
the decision of any stipcndiiiry or
presiding judge in a cinini under
sub-sec. 2, sec. 85, may be to Q. B.
Manitoba.

By R. O. N. W. T. 1H88, c. 58.
p. 406, sec. 4.35 : No appeal
shall lie from the judgment or
order of the court preside;! over
by a single judge, or a judg» of
the court to the court in Imuic
without the s|wcial leave of the
judge or court whose judgment or
order is in (piestion, unless the title
to real estate, or some inteivst
therein, or the validity of a patent,
is affected, or unless the matter in
controver.sy on the apfieal, in mat-
ters of contract i.vcveils the sum of
$500, and in matters of torts e.v-
ceeds the sum of 8200, exclusive
of co.sts; or unless the matter in
question relates lo the taking of an
annual or other rent, customary or
other duty or fee, or a like demand
of a general or public nature
affecting future rights. [The
words in italics rej)caled by Ordin-
ance No. 21 of 181)0, sec. 7.]

Supreme Court of Canada.—

.38 Vict. c. 11. established tiie Su-
prenu! Court as a court of common
law and equity.

Sec. 17. Subject to the limita-
tion and provisions hereinafter
made, an appeal shall lie to the
Supreme Court from all final judg-
ments of the highc.'it court of linal
resort, whether such court Im'
a court of appeal or of original
juri.sdictiou, now or hereafter es-
tablished in any province of Can-
ada, in cases in which the court of
original jurisdiction is a sujH'iior
court : Provided that no ap|M>al
shall 1)6 allowed from any judg-
ment rendered in the provin«'e of
Quebec, in any ca.^e wherein the
sum or value of the matter iu dis-
pute does not amount to 82,000;
and tlu! right to appeal in civil
case.', given by this Act shall be un-
derstood to Ih' given in such cases
only as are mentioned in this .sec-
tion, except Exchequer cases, ca.ses

of mandamus, habeas corpus, or
municii>al byc-law.s, as hereiiinftei'
l)rovide«l. [Amended bv R. S. (.",,
188G., c. I'At). s. 24 ; 51 Vict. (I).),
c. 37. ; 54 & 55 Vict. (Dom.) c. 2.5.,
and other Acts.]

By R. S. (C), 188G, c. 135.
sec. 20. Except as otherwi.sc pro-
vided in this Act, -jr in the Ad pro-
vided for the Hp|H'al, no appeal
shall he to the Supremo Court Init
from t'lie highest court of last re-
sort having juri.sdietion in the pro-
vince in which tht^ action, suit, or
cause, n.atter (tr other judicial pro-
ceeding, was originally constituted,
whether the judgment or dec!;!^;,
in such action, suit, cans-, , luattcf
or other judicial preceeding was or
was not a proper subject ot appeal
to such highest court of last resort.

(2.) Provided that an ap|H'al
shall lie directly to the .Siijircini'
Court from the judgment of tJic
court of original jurisdiction, by
consent of j)arties.

(3.) Provided al.so,that an appeal
shall lie to the Supn-ine Court liy
leave of .such court, or a judge
thereof, from any judgment, decree,
or decretal order, or order made
and pronounced by a superior
court of e(piity, or made or pro-
nounced by any judge in eipiity,
or by any superier court in any
action, cause, or matter or other
judicial proceeding in theinitiire of
a suit or prci'eeding in ecpiity, ami
from the linal judgment of any
suiM'rior court of any province
other than the province of (.^ihIht,
in any action, suit, cause, matter,
or other judicial proceeding origi-
nally commenced in su<'li sii|Hrior
court, without any intermediate
appeal iHiing had to any intenne-
diate court of appeal in tlie pro-
vince. [The above is taken from
38 Vict. c. 11.S.S. 11,27; 12 Vid.
c. 30. ss. 5, 0, 7.]

Sec. 29. Noajjpeal shall lie nndor
this iVct from any judgment ren-
<lered in the province of QuelH><'
in any action, suit, cause, matter,
or other judicial proceeding, wlieiv-
in the matter in controversy does
not amount to the sum or value of

f!f "t%

B.N.A. ACT. 8. 101.— APPEALS IN HABEAS CORPUS, &o. 405

S2,()00, unless such matter, if less
tlinii tliat nmount —

(rt) Involves the question of the
valiility of an Aet of the Purlin-
im'iit of Ciiniula, or of the legisla-
tiiri' <>t any of tlu' [)rovinees of
Caimdii, or of an onlinant-e or Act
of any of the eoinieils or lej^isla-
tivc liudies of anv of the territories
ordistriets of Canada; or

(A) Relates to any fee of office,
(liitv, rent, revenue, or any sum of
iiiorify payahle to Her Majesty, or
to any title to lanils or tenements,
annual rents, or such like matters
or tliiiifis where the rights in future
mi>;lit he Imund. [.'JH Viet. e. 11.
s. 17; 42 Viet. e. 30. s. S.]

(2.) Provided that sueh apjH'als
sliall lie only from the Court of
Qupcn's Bench. [This suh-see. 2,
was amended hy 51 & 55 Vict.
c, 25. s. 3 ; see fte/oir.]

See. 71. The jiidfiment of the
Supreme Coiut shall, in all ca.ses,
Ih' final and conclusive, and no
ii|)|H'al shall he hrought from any
iii(l<;niont or order of the Supreme
(.'omt to any court of appeal estah-
iislicd by the Parliament of Great
Biitflin and Irelan<l, by which ap-
\m\ii or |)etitions to Her Majesty
in Council may l»e ordered to l)e
licaiil ; saving any right which
Hit Majesty may be graciously
|ilcas('d to e.vercise by virtue of her
rovui prerogative. [3S Vict. c. 11.
S.47.]

Lord Cairns, L.C., has .said that
till' tlrM part of this .section re-
ferred to a eontemplatetl Court of
Apppid then proposed in England
[s(t the Judicature Act of 1873,
s. 21] to hear colonial appeals.
.loiuison !•. Ministers St. Andrews,
IH he. J. 113; 1 S. C. R. 235;
in P. C. Dee. 10, 1H77, 3 App. Cas.
159; 37 L. J. P. C. 557; 20 W.
11. 359.

By 54 & 55 Vict. (D.) c. 25.,
«S!M'nted to 30 Sept. 1891, se*-. 2
(lUh'iKled sec. 24 (g.) of the R. S. C,
lf*HO, e. 135., which gave a right of
iiplKid ill ''habeas carpus" cases
"not arising out of a criminal
i-harge " by adding after the words

" habeas corpus " the words " cer- Amendment of
tiorari o; prohibition." ^' ^- ^- "'*^*

By sec. 3 of 54 & 55 Vict. (D.)
c. 25., sub-sec. 2 of .sec. 29 of the
R. S. C, 1H8(!., c. 135. is hereby
repealed, and tin; following sub-
sections are substiti ted therefor: —
" ( 2.) Where the matter in contro-
versy involves any such (piestiou,
oi- relates to any such fee of office,
duty, rent, revenue, or sum of
money payable to Her Majesty, or
to any sueh title to lands or tene-
ments, annual rents, or such like
matters or things where rights in the
future might be Injund, or amounts
to or exceeds the sum or value of
!^2,(X)0, theie shall 1k^ an appeal
from judgments rendered in the
said province, although such action,
suit, cau.s«', matter, or judicial pro-
cei'ding may not have been origin-
ally instituted in the SuiKM'ior
Court.

"(3.) Provided that suehapi^als
shall lie only from the Court of
Queen's Bench, or from the Suiw-
rior Court in review in cases where,
and so long a.s, no ap[ieal lies from
the judgment of that «'ourt when it
conlirnis the judgment rendered in
the court api)ealed from, which by
the law of the province of Quel)ec
are appealable to the Judicial Com-
mittee of the Privy Council.

" (4.) WheneviT the right to ap-
peal is dependent on the amount in
dispute, such amount shall be
understood tc Im; that demanded,
and not that recovered, if they are
different."

By sec. 4 of the la.st-cited Act,
•sec. 37 of the R. S. C, 1880,
c. 135. [38 Vict. c. 11. s. 52, a
section that the Governor in
Council might refer any matter
to the Supreme Court for those
judges to certify their oi)inions] is
repealctl, and the following sub-
stituted therefor : —

"•^" Imjwrtant questions of law
or fact touching provincial legisla-
tion, or the up}K>Uate jurisdiction
as to educational matters vested in
the Governor in Council by the B.
N. A. Act, 1967, or by any other

i ;

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li i.i^ui

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1 1

(

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I ;

40A

B.N.A. ACT, 8. 101.— FINAL JUDGMENTS.

CtJviM.iKR V. Act or Inw, or toucliing thf consti-
Aylwin. tntionnlitv of any lo^^islation of tlin

Pnrlinment of Caiiiidn, or toncliiuf^
any oth;'r .ijatter witli roforonco to
which he sees fit to cx«'rcisc this
power, may 1m> referi-ed, hy th(' Go-
vernor in Council, to the Supreme
Court for hearing; or consideration;
and the court shall thereupon hear
and consider the siinie.

" (2.) The Court shall certify to
the Governor in Council, for his
information, its opinion on ques-
tions so reserved, with the reasons
therefor, which shall he given in
like manner as in the case of a
judgment upon an appeal to the
said court ; and any judge who
differs from the opinion of the
majority shall in like manner
certify his opinion and his reasons.

" (.S.) In case any such question
relates to the constitutional validity
of any Act which has hitherto heen
or shall hereafter he piusswl hy the
lepfislature of any province, or of
any provision in any such Act, or
in case for any rea.son the Govern-
ment of any province has any
special interest in any such ques-
tion, the Attorney-General of such
province, or, in the case of the
North-West Territories the Lieu-
tenant-Governor thereof, shall \w
notified of the hearing, in order
that he may lie heard if he thinks fit.

" (4.) The Court .shall have power
to direct that any person interested,
or, where there is a class of i)ersons
interested, any one or more jiersons
as representatives of such class, shall
be notified of the hearing uj)on any
reference under this section, and
such persons shall l)e entitled to
Iw heanl thereon.

" (5.) The Court may, iu its dis-
cretion, request any cotinsel to
argue the case as to any interest
which is affected, and as to which
conn.sel does not ap|iear [see On-
tJirio Act, p. 401], and the reasonable
ox])enses thereby occasioned may
be paid by the Minister of Finance
an<l Receiver-General out of any
moneys approj)riated Ity Parliament
for expenses of litigation.

" (0.) The opinion of the Court
ujion any such ri'fcrenee, nltiuiu;,'li
advisory only, shall, for all pur-
poses of appeal to Her Majesty in
Council, Ikj treated as a final jud},'-
nient of the said Court Ixjtwccu
parties.

" (7.) General rules and onhMs,
with respect to matters coniinj:
within the jurisdiction of tlio
Court under this section, may lie
made in the same manner and to
the same extent as is provided liy
this Act with respect to otiicr
matters within its jiwisdiction,
and, in particidar, such rules mul
orders us to the juilges nniking
them seem best for the invest !},'«.
tion of questions of fact invdivcil
in any reference thereunder."

Owing to the above-cited Ait of
31 (^eo. :i. c. (}. (see p. ;i!)7), it was
doubted whether an appeal could
be allowed to the Privy Council as
an act of grace. See Cuxiliicr r.
Aylwin, in P. C. 24 Nov. 1^^32,
before the Master of the Hoils
[Leach], Sir Christopher IJoiiinson
[Jiulge of Adm. Ct.], and Hcinv
Ellis; 2 Knapp P. C. 72 : Stuart's
R. 627. There, on 20 Feb. 1807,
in the King's Bench, in the district
of Montreal, judgment was re-
covered by J, Jones and Tliouiiis
White against T. Aylwyii, J.
Hnrkness, and Austin Cuvillicr
(co-partners and merchants triuling
at Quel)ec), si'verally an<l jointly,
for the sum of .€272 4.9. ihf., ami a
sum of £20 Is. lOd. for costs.
Execution not having l)ecn su«l
out, Jones and White assigned to
the respondent, Olwdiah Aylwvn,
for valuable consideration, the juilg-
meut, with interest accrued on the
debt and costs, which then amoun-
ted to the sum of £397 14*. 7d-
current coin of L. C. Judgment
not l)eing .S4itisfied, in 1815 tiie
respondent commenced an action
again.st the appellant Cuvillier.
The action was (lismissed 1!) Jmif
1H16, but on 30 July 1S21 jmlg-
ment was given for the respou<lent
in the Court of Appeal in Quebec,

UNA. ACT, H. 101— riUVY TOUNCIL APPEALS. 40?

atiil £.307 11«. Id- was ndjuclRcd
to 1k' piiitl to him witli coHts. Tlu'
aiipclliiiil presi'iitfd u petition to
lilt' Kiiif,' ill ('oiincil, May li4,
IS'j;!. iiiul "II li.'J .liiMt' 1H24 His
Miiji'>l\ WHS piwisctl to order I lie
iictilioiier should lie allowed to
Ciller Mild pioseeiitii nil iippeul
lioiii the sitid jiulj;iiieiit of the
,{()tii .liilv 1H121 (witliout prejudice
tollie (plestioll wlH'ther the li])peid
liecoiniM'teiit or not), nju)!! security
lit'iiif; niveii liei'e in the sum ol'
tlOO to prosecute the said appeal
1(1 fllirt williin the s|mce of one
Mill' and a day tVom the date of
this Order in (.'oiiiieil. Tin- apiM'l-
hiiit not prosecutinji his appeal,
iv!-ip()ii(leiit in Dec. 181'<» i>rescnted
a pt'tilioii that the appeid lu' dis-
iiiisscil. On <)Oth .Jan. and 2nd
Fell. 1S27 tlu! matter came on
lid'div the Hoard of the Privy
('(iiiiiiil. when theii' Lorilships,
coiisidcriiij; the question affected
iiiipoilaiit interests of a larp-
lias- of His Majesty's subjects,
wi'iv pleased to order that cases
>liuiii(l lie ])iinti'd, conllned to the
(|iicsti(p|i, whether the nforcsiud
iipiM'sil was or was not competent.

Tile ivspondeut urgued the ap-
peal was ineoiiipetent, and cited
:!1 ({.■(., ;5. c. \n. ss. 2, 30, 31, 31,
mill the Act of the legislature for
lilt' tlivi>iiiii of the province of
Ltiwt'f t'anathi, connnonly culled
lilt' .lutlicature Act, 34 Geo. 3. c.
tis. 30, which Act was transmitted
Id Eiijjliiiitl and received the Royal
Asst'iit.

Tilt' appellant contended that
lilt' jiitl|;iiieiil had lieen recovcretl
iil'li'i' the tlissolution of the appel-
lant's co-partnership, and that the
tlfht hail iK'cn siitislied.

The lij^ht of His Majesty an-
It'iior to the passing of the statute
|>I' 31 Geo. 3. c. 31. and the pro-
vincial Act of the 34 Geo. 3. c. 6.
Ill I'littTtaiii and determine in His
Privy (.'iiinicil any case on apiieal
tnnii the juilginent of the Court of
Apiwil in Lower Canada isunt|ues-
tiouahle. The right is not abro-
gtttwl by the last-meutioueil sUituto,

and it is not within the competence Ouvilmkr i'.

of the proxineial legislatiu'e to Avlwin.

abridfje, much less abrogate, any

prorogati\(' right of the Crown.

^'et, even if it were competent for

the provincial legislature to pass

an Act to that ett'iict, the right of

His Majesty tti receive and hear

the a|iiM'al in the case s]H'ciiied is

not taken away by the provincial

Act of 34 Geo. 3. c. 0., as there

is an ex[)rc,ss sjiving of all rights

and prerogatives of the Crowu,

sec. 43 [i'ce ubove^.

His reasons were : Becaust^ His
Majesty's prerogative rights, es-
pecially such as concern the
adminisliiition oi' justice, cannot,
it is conceiveil, be abridged, much
less abrogated, except by the most
direct anti express words of an Act
of the general legishiture. (2)
Hecause there are no words in
the .statute 31 Geo. 3. c. 31. which
take away the right of appeal ;
although the words of the pro-
vincial statute of 34 Geo. 3. c. 6.
are more extensive, yet there is an
express saving of all prerogatives
of the Crown ; and if the Act is
to \)Q con.strued as intending to
take away the right of His Majesty
to receive and hear an appeal in
the case specified, it was not
within the competence of the
legislatur*' to pass such an Act. —
Signed Henry Brougham, for aji-
jiellant, antl for re.spomlent,
Stephen Lushington.

The date of the judgment ought
to 1h' 24 Nov. 1H32. Present,
Sir John Leach, M.R., Sir Chris-
topher llobinson, aiitl Mr. Henry
Ellis.

Sir John Leach, MR., is re-
ported to have said : " It is not
necessary to hear counsel on the
other side. 'I'he king has no
power to (h'lirive the subject of
any of his rights ; but the king,
acting with the other branches of
the legislature, as one of the
branches of the legislature, has the
powt-r to deprive any of his sub-
ji'cts, in any of the countries under
his ilomiuiou, of any of his rights.

' r •

! i I

!|:!

CnviiUBB V.

AVLWIN.

408 B.N.A. ACT, H. 101.— BROUGHAM'S OPINION.

Tlu' petition must, tlit'n'l'on-, bi-
ilimiiif^Md."

Thu report of C'livillicr r. Aylwiii
in Stuiirt'.s ]{., p. 527, contiiins u
uotc of Lord Uroiij^liani'.s opinion,
while still Mr. Broii^'lmni.

His opinion wiis : " 1 am clriirly
of opinion tliiit no such limitation
is valid to bur itn appeal to the
Kiufjin t'oiincil. 1 shoidd {greatly
doubt if any (Hilonial Aet, t/ioiu/h
alloirvd by the t'rosvn, if uneon-
llrnied bv Aet of Parliament, has
power to taki' from tliu subject
this ri<;ht. But a colonial Act
uever allowed, can ch'arly have no
effect. Kvt'ii in cases where u
liinittition has been validly intro-
duced by law, the Privy Council
have Im'cu in the practice of allow-
ing ap])eul.s almost tis a matter of
course.

" Such petitions are termed pe-
titions of doleance, and, I l)elieve,
never refused, although the law
may have excluded appeals under
a certain amount, or after a certain
time." Lincoln's Inn, '1\ June
1823.

The note in Stuart go«>s on to
say : " It woidd seem that where
the question arising upon appeal
from a colonial court to His
Majesty in his Council, is one of
ordinary municipal reguhition, re-
lating to the credibility or com-
petency of particular witnesses, or
to the weight of evidence, or to
the regnliuity in point of form of
the proceedings in the cauw, or
generally wherein the grievance
complained of is appliad)le to the
party ajjpellant and confined to
Lis ca\ise, then the limitation of
the right of appeal to certain
eases in amount would l)e followed
by His Majesty iu his Privy
Council. An<l this not merely l)e-
cause the limitation in question
wa-s estubli.shed by the colonial
legislature, but lM>cau.se such
limitation is convenient, and sanc-
tioned by long usage, and the court
of the King in Council itself.
Such a limitation has at all times
existed iu relation to ap^Kials from

the French islands of (Jueniscv,
&c.,and in olil liritish colonies ; hikI
as to the latter, it would prolMd)ly Ih>
found that the limitation had Im-cm
evteiuled to theiu by analoijy from
the practic»' which had long ob-
tained as to the former, and to Ik>
traeeil to the power of euteitMiniii};
or rejecting apju^als from tlic
colonies, according to a eertniii
known practice which the Suprcnic
Court of ApiH'llate .lurisdictioiiliiis
at all times exercised, and wliicli,
being the practice of that court, is
the law of it. It is difficult to
conceive any other reason wliv
appeals from interlocutors rendcrcil
in the courts of the French islniMls
and of the colonies have iH'cn luii-
versally disidlowed by the Privy
Ct>uneil, whilst apiwals from inter-
lix'utors rendered in the Scotili
courts have, in the cases ])erniilt('(l
by law, lieeii allowed by the House
of Lords. Apj)eals from ttuenisey,
&.V., to the King in Coimcil hiive
in all cases exceeding t"{(K) Imcii
allowed, and a like rule obtained in
all the British Colonies. In this
vi»!W our provincial statute, then, in
enacting that appeals to the Kiii);
in Council shall lie oidy in eases
above £500, cannot Ik' said to liiive
abridgetl, or attempted to abridjje,
the apiH'llate jurisdiction of thai
court.

" At the same time that such,
it is apprehended, is the general
rule, there is a class of eases wliieh
may perhaps not be comprised
within it : —

" It seems to l)e e,s.sential to the
maintenance of the imperiuni of ii
metropolitan State over its siilwr-
dinate possessions, that the judicial
pre-eminence shouUl reside in the
metropolitan State, and, therefore,
that the right of judging iu the last
resoit, as well iu criminal us in
civil matters arising in the colony,
or HulMirdinate State, should 1k'
ht'ld by the parent or metropolitan
State : otherwise it would be in the
power of the subordinate State, liv
jiuUcial decisions, to undermine and
ultimately to absorb the authorit;

B.N.A. ACT, s. lOl.-QUKSTIONS FOll I'. C.

100

of thr mclnipolilaii Stalf. It is in

niU'stiiiMs t()ucliiii}{ tlie rcliitioiis,

howeviT iciiHitt', Iwtwt'fii tli»' two

Siulfs— mitl tlu! (i|ii'rati<in of the

|ii\v.4 (if the <>iu> williiii tlic limits of

ihc iitliiT, ami «-oiictriiinp; in any

w»v, lutwcMT indirccllv, the .so\f-

reji'iit* iif tln' oiii' over tlio otlicr —

ihul tilt' Acts of till' colonial Icfjisla-

imvs must hv int('r|>n'tt'il, or, if

iiit'd Ik', iKnlrolliMl liy the antlio-

ritv I'f the inflro|K>lit4in Statf.

Aiitl witli rcspfct to this class of

nix's, tilt' Iviii^ in Council conld

mill oii}.'lil. it is coni'civt'd, to tMitcr-

l.iiii a|iiKiiis — howcvtT small the

«umiiu'oiitr(ivfrsv mi}i;ht Im- — if tlu-

(;iM'» wrrc such as called for the

iiiii'r[Kisition of the jiiilicial antho-

ritv. Tliiis, in the eas«> of a decision

ill till' I'lilonial conrts concerninj;

ilii' ii|H'nitii)n of the Kii<rlish liank-

rii|it laws within the colonies; or,

liii- >tiiliilt' of Geor;;e II. enaetinjj

tliiit liinils ill the colonies shonld lie

'«i^i'il mill taken in execution as

I'liiittr'^, and that exaniinations

taken U'fiire Lonl Mayors of towns

ill Uri'iit Britain shall in cases lie

ivfcivtil lis eviilence in the colonies

— iir loiicliiiig the prero<;ative, the

ctclfsiusticiil establishments, or

loiiiifclfil in any other way with

imlilie liiws — a|i|M*als wonlil prob-

iiliiy Ih' I'liltTiaineil by the Kiiifr in

Vniiiu'il from the ctilonies. 'I'he

aliove tlistincliou ap|)ears siilK-

litiitly I'lcur, anil accordin<; to it

till imlilif convenience is consulted

wiiiioiit any infringement of the

right of the parent State.

Hi'ld in C'ushiug v. Dnpny [see
""'(. p. 83] that Cnvillier v.
Aylwiii WHS open to review. See
din Lord Cairns, L.C., in The-
luTfje r. Laiidrv, in Snp. Ct. (jne-
1«, 29 Mav IH7G ; in P. C. 7 Nov.
b:i); 2 App. Ca.s. 102, 10 L. J.
1' ('■ 1 ; 35 L T. 640, and ante,
\> 15. Sec Christian v. Corren,
Miiii. Term. 17U5, 1 P. Will.
3.1!';'JEq. Cus. Ab. 81, where ut
It ( ouiuil held nt the Cockpit, it
«a-liol(l that the Subject cannot be
ilt|.rivtHl of his right to iip|)eal by
'"J words iu the king's grant to

much less if the
ill that particular.

Cl'VIM.IKII c.
.\V I.WIN.

that purpose,
grant In- silent

'I'hat ca.se was ilisapproveil in The
Queen r. Alloo Paroo, from S. C.
Honibay, 'JU .lune 1SI7, ") Moo. P.
C. 2J>(».' There a statute, 1 Ueo. I.
c. 71. ss. 7, 17, gave the Crown
power to grant a charter to n court
of justice at Hombay, with the same
powers, iinmuiiities, jurisdiction,
anil authority as were vesteil in the
I'ourt at Fort William by 1!J (leo.
3. c. (i3. and amending Acts.
The statute 13 (leo. 3. c. (13. . s. 18,
contained a {Kiwer to appeal to His
^lajesty in Council in such manner
and in such cases and on such
security as to His Majesty .should
.Si-em meet to prescriln' in the
charter. The charter, grantc<l in
execution of that power con.sli-
tnting the Supreme Court of Fort
William, provided that in all
indict nient.s, iid'ormations, ami
criminal suits and causes what.so-
ever, the Supreme Court shnll have
full jMiwer, and absolute power and
authority, to aUow or deny the
ap[M'al of the party, ami also regu-
late th^ terms on which the ap|M>al
shall be allowed. [See 5 Moo.
P. C. p. 2J)9, and The (^ueen r.
Ediiljee IJyramjee, 5 Moo. P. C.
p. 27S). In Reg. r. Alloo Paroo
(cited above), Lor«l Brougham .s:iid,
in refusing leave to ap|)oid in a
criminal suit from India: "'Ihe
Crown may almmlon a prerogative,
however high anti es.stuitial to pub-
lic justice ami valuable to the sub-
ject, if it is authorize*! by .statute
to abandon it," and held the court
l)elow had an absolute <Iis' "etion to
refuse an ap|M>al in criminal ca.ses.
His Lordship then referred to
Cnvillier v. Aylwin.

In the case of 'I'hk Qitken v. ■[•„r, Qcebji ».
EnuLUKKBYUAM.iEic, 8 April 1846, Bykamjkk.
5 Moo. P. C. 27U, 28U, a case in
which lenve to appeal was rt^fiised
by the S. C, Dr. Lushiugtou said :
"Nor are we aware that in anyone
single instance the Crown has ever,
by exercise of its prerogative,
granted leave to ap[)eal in any such
case" [appeal in felonies], and

'fi 1^

■ |M::,r

; [^v '•.

1- •

' -i 1

' ■ i,

Redi'Atii I'.

Al.I.KN.

HO H.>f.A. ACT, s. 101— llATIFICATION OF COL. ACTS

1)«' coiitiiincd (|). t2!M)»"It «i»"*t Ito
rtH'ollccit'il ilint this is a ciiso in
wiiic'ii tin' Crown uninls n clunlt'r
liy vii'tiif of lui Act ol' I'miiiiiut'iil,
niitl timl clmiti'i' must lie con-
t<i(i<Tt'il as <;niiit('il ill cxcciilioii ol"
tlu' powi'is whic'li were j^ianloil liy
that Act of ParliaiiH'ni."

Colonial Acts ratified by the
Queen. — In Redpatii v. Ai.lkn
(the •' lliliiTiiiaii," u niicfttion of
liiiliilily for liiiiiia^t' : thi- *' llilnT-
iiian " IiikI on lioaid a coiiipulsory
pilot, imd iiy Caiiiuliaii statuti's tlit>
siiipowiitT was not to lie iiahlc for
(hiiiia;>;<- ocni^ioiit'tl \iy tlu- fault of
.such pih.t), Dec. .'}, 1H72, 4 L.
]{. V. C. oil ; 12 L. J. Aihii.
H; 27 L. T. 725; 21 W. U.
27(!, it was ai'f^iicd tlmt tlic n<;lits
of Hiiitors in the V'icc-Adiiiirahy
Court of Lower Canada cannot lie
affected or taken away liy a Cana-
tlian statute. IJut .Sir Holiert
I'hilliniore, in deliverinj^ the jiidfj;-
nieiit of the P. C, said : ''It lias
Ih-cii contended liy the appellant
that the ' Ililiernian ' is not re-
lieved from her linliility.. This
contention is founded on this posi-
tion, that the general and maritime
law is alone applicalile to the case,
liy which law the wrong-doing
vessi'l is bound to make full coni-
pensition to the suffering vessel for
the dainag(> inflicted upon her. In
order to sustain this position, it
has been asserted — first, that the
Canadian statutes [27 & 2H Vict,
c. 5H. s. 10, and 27 & 28 Vict.
c. 13.] on which the learned judge
relied are without authority in the
Vice- Admiralty Court. It bus been
said at the bar that this .suit might,
an<i, so far, the statement is correct,
have been instituted in the High
Court of Admiralty, which, it is
also said, would not have taken
cognizance of the .statutes, and in
supjiort of this startling proposition
the case of the ' Hallev,' decided in
this tribunal, 2 L. ll P. C. 193,
was citeil. Their Lordships are
wholly uiuible to follow the reason-
ing of coujisel upon this point. In

the ease of the ' llalley,' tlie jiidj;.
nient turned upon a (piestion ii>. u,
the partial, or entire, iulii|iii(iii ui
rejection of the law of ii t(iii'i"ii
country. In the present ihm'. ih,
law involv(>d is coi.i; iiied in iiii Ait
of the legislature of n colonv
belonging to the Crown, ami nititltil
by the express sanction df H,.|
Majesty. Their Lordslii|iH Inn,
no doiilit whatever that this Ihw, in
every case to which it isapiiiiriililc,
is of binding authority i(|uiilly in
the Ciueen'> High Court of .Vdmi-
rnlty and in the Vice-Adniiraliv
Coiii't of Canada, as a court of
ap])eal from which, it is to he i>ii.
served, their Lordships mi! now
sitting."

As to the Rig^ht of Appeal.-
Hiirge on Colonial Law, vol. 1, p.
xlvii., .says that the Govprnor's in-
striictions wereto allowanapiM'iilto
His Majesty in his Privy I'oiiiuil.
" where the sum appeiiled for iiiitii
us" exceed 500/., that the iipiH'!-
hint gives good .security, and tluMi,
" Providctl, nevertheles>, wlitif
till' matter in (piestion reliiti's tu
the taking or demanding any duty
to us, or to any fee of nllici', or
annual rent, or other siicli likr
matter or thing, where the rij;lit iii
futinv may be bound ; in nil smii
cases you are to ailmit the ii|i|Knl
to us in our Privy Council, tbdiijjli
the innnediatc sum or value ap-
pealeil from be of less viilm."
Her Majesty can, therefoiv, iipou a
petition, allow an appeal in on*-
of any value. Sec lid parte Jmoli
de Pariente, Nov. 21, IS't',
2 Kuapp, p. 70, quoting an oiiiniuii
of Northey in a case in 1717. *'«
Forsyth's Const. Law, 37G.

In OnpiiAN Board v. Va\
Kkenen, July 17, 1S29, 1 Knnpii,
853, the Court of Appeal, Cape
Colony, refused to gi\e leave to
appeal, 9 Oct. 1823, from a ikw
made on 18 Sept. of the same
year. Lord Wynford said : " There
is an established rule that if an
appeal be granted, the party nws
bring that appeal to u beariij

B.N.A. ACT, X. 101.— H. OF L. & COL, API'KALS. Hi

williiii iiiit' yi-'iii". iii>l*'Ns lie olilaiii

tiiillH r tiini' liir tin- prosi'dition of

ii fniiii tlii-- lioiird, aiul llu' rcs|K)n-

,|,nt iimv a\\\ updii lis to ilisiiiiss

\\{f ttiipcal oil airoimt of the

,|,.|,iv ill prt'sciitiiif,' it. Tliis rule

Ii:i> lU'ViT Vi't U'cn cxtt'iidcd to

;i ciiMc where the aitpeal lias hccn

ntusiMl bv the eoloniiil court. It

;. Id he hoped that appeals will

nin-h', if ever, lie refiix'd to parties

wild iiiivc any preteiu'o of interest.

Till' kiiij; is anxious that complete

jiiMio' .>>hoiild Ik* done to all the

iiiiialiittiiits of the province heloii};-

iiiL' til his empire, and has directed

ill, I'owrnors of those provinces to

allow npiH'als to himself in council.

Sliiiulil, however, a ca.se occur in

which nil api>eal has lieen refii.scd,

and the party has neglect<'«l to

fiilliiw 111) ''"' "PP*'"' ("llowed on

{H'titiiiii to the king) for an iiii-

i>ii>oiiiiliie time, we shall fet-l it our

iliilv III I'eeoiiimeiid His Majesty to

lli^llli^s it." lint as that partii'iilar

Ms'ivtVirrd to the rights of infuuls,

am! the respondent had only taken

ilic olijwtidii at the bearing, the

:i|i|H'iil \riis heard, notwithstanding

an iiiu'eiisdiinlile delay. See also

Lid Brougham in Reteuiever v.

ONrimillcr, 2 Moo. P. C. "p. m.

Tliiw is a precedent for the House

iif Liii'ils ediisiiU'i'ing the constitu-

limiiility of an Act of a colonial

|;i>liitiire. In 1S40 the tpiestion

I'l tlu' validity of an Act of the

liniviiici' of Upi)or Canada was

I onliivil to lie propounded in cpies-

liuiL-to the ju(lg«'s of Fnglund, and

jUilMniisiield, 1 May IHIO, de-

livi'ivil the iiuauimous deci.sion of

jilltiu,' judges, except Lords Den-

jiiiai: imil Ahiiiger, that the Act

pas Hltru vires [.see House of

jLonls' .rounials, vol. 72, pp. 224,

|2'4 ; tee ante, p. 3 10] . The Act iu

lqiif<tioii WHS in resiiect to the .side

jcf llii> dt'igy hinds, and cau.sed

Ipvai I'xoitement in Cuiiuda at the

l''""' .Should an occasion of such

I'llnr ('.xcitement occur again,

I«tl«r from a provincial legishitiire

■*«.'5iiiH a Inw, and refusing to alter

. »liii:h the Dominion Pftriiument

and Privy Council hold unreason- <iuriiAN Hri.\ni.
aide, why should no) the same ' • ^^*"< ''^•^•''►•'•'
course lie followed and the eonsti-
tiitionality of the olinoxious Act
argued liefore all the judges of
l']iiglaiid? A decision of such a
trilMinal would have great weight.
CertHinly, if one or two of the
eminent judges of Canada were
asked to take part also in the deci-
sion, it wouhl Im- giatiiyiiig to the
Canailian people. [Sec 5H t*t oJ)
Vict. c. II.]

In important oases it is right to

retain the most eminent counsel.

In Valin v. Lanoi.ois, 1879 V.u.in c. L.\.vi-
[xec ante, p. IH], Lord Selborne ''*""•
said the case was of the greatest
importance. '' It, therefore, would
have been very unsatisfactory to
their Lordships to disjiose of such
an application without, at least,
having had the grounds of it very
fully presented to them.''

Colonial Cases. — In re Disiior //i fc Pisaor
OK N'ATvr., 20 March 1865, .3 Moo. or Natal.
P. C. N. S. 115; 12 L. T. 188;
1.3 W. W. 51!), Lord Wcstliury,
L.C., saiil : " It is the settled pre-
rogative of the Crown to receive
appeals in all colonial causes."

It is right to add that liy 3 & 4
Will. I. c. 41., which constitutes
the .ludicial Committee of the
Privy Council, Her Majesty has
power to refer to that triliiinal for
hearing or consideration any such
other matters whatsoever.

Special reference through a
Secretary of State. — //♦ re 7h re Stuosai a.
.Sthonacu, 14 May 1838, 2 Moo.
P. C. 311. By ail Act of Grenada,
No. 250, the decision of the
Chief .Justice was final and con-
clusive. The .ludicial Committee,
while hohling they had no power
to entertain the appeal, suggested
a jH-tition to the Crown, through
the Secretary of State, for a refer-
ence to the .ludicial Committee
for their o])inion on the apix>al.
It is UH(icr.-tood this practice of
special reference was origiuateil by

I ■ ■ i

:;l^ V

n:Mii-

mi 1

412 B.N. A. ACT, s. 101.— WTDK POWER OF P. C.

/m r« STROMAdi. .| fx'o. 2') H, H. <•. 10 (Petitions
to thi' C'oi.rt of Dt'lfgntt'S to hear
an iippt'iil.) See Mnlliows v.
WurniT, 4 & 5 Vasoy, pp. 103 and
2.'{, rcMpt'ctivcIy.

After the ha'ttle of Waterloo, the
claini.s of Britisii .><iil>je(.vs for in-
demnity for tlieir los.ses (hiring the
Freneli revohilion aiine in. These
chiinis were (lir»'ct4'il to \h' con-
sidered Ity Hi.s Majesty's Privy
Coiineil \sce 2 Knapp, p. 7].

Wliere no ri<;ht of appeal hy law
P-xi^ls, the proper eoiirse is to l«Mi};e
II |Htitioii, stating shortly, hut
» siieiiiictly, all the facts and material

circumstances, and i)raying the
griiiiling i.f special leave.

Or a petition to the Secretary of
StnU' for the Colonics, praying Ilcr
Majesty to refer the .samn to ller
Majesty's Judicial Committee for
hearing, under the provisions of
3 & I Will. 4. c. H. s. 4.
Ill IV Haji-sav. /„ i.f, Ramsay was such a ca.se.

In Q. U. (iiiehcc, 0 March 1H07,
11 L. C. J.I.jS; in P. C. Nov. 20,
1870, 3 L. U. P. C. 427 ; 7 Moo.
P. C. X. S 203. Drnmiuond, J.,
fined Hainsay, a counsel, for alleged
contempt of court. Kainsay brought
a writ of error to the Ct. of Q. H.,
hut the court, Duval, C.J., Aylwin,
Badgley, and Drummond, •)•!.,
Moiuh'lc*, .1., Jisenting, held that
no writ of er r lav.

Sir Williu . Erie (late C.r.C.P.)
wiid: "Tlici Lordships have con-
sidered tlm;, hy tlic 3 & 4 Will. 4.
c. 41 s. 4, there may be a wide
jK)wer vested in ihc Judicial Coin-
inittee of rhe Pri\y Council. That
section enacts tlint it .shall Ih' lawful
for the Crown to n'f<'r to the Judi-
cial Coniniiitce for hearing or con-
sit'cration any matter whatever
which Her Majesty may think tit,
and such Cor.imitte'.' shall tlierciijHin
hear and consider th ■ stiii:e, and
shall advise Her M-.jesty tlicreon.
Tlial s«'ction Ivih lieeii acu- 1 on i'>
se\('ral ca.ses, and this ConiinitU'c
have had then to advi.se Her
Majesty as to what i.> the best course
to be pursued. It van the coufhu

that was taken in Bniny r. Jnstiro
of Sierra Leone. I am (lireotcil
by their Lordships to ask von
wliether, if you prefer that conrM',
you WG..' '. Ix' content witliom
pressing for a judgment on tlic
point resjMJcting the writ of error
or the right of apiM-al from ti ?
order made thereon ; and on tla'
lUHier.standing that you assent to
that course the judgment of tin-
court will Im', that in the ciiiiim-
stances disclosed by your ]Mtitio!i,
if upon your ap|>licatioii to the
Crown Her Majesty's Secretary of
.Slate thinks lit to refer tin- iaiitl( r
of the petition to the Judicial
Committee, we will hear it and
advi.sc Her Majesty thereon, in tlic
same manner as was done in Hiiinv's
case. This course will icJicM' us
from con.sidering wiictlu-r s|HHial
leave to appotd should be granted."
The cour.se ;<uggestcd was iido|it(Ml,

Hainv v. Justice ok Sikuha
Lkone, in P. C. 7 Fel». 1H52, mid
July 2, 1853, H Moo. P. CIT. On
the former date were present Lord
Cranworth, Knight Bruce, L.J.,
Dr. Lushington, and Sir Edward
Ryan. Uainv was an cdviKate in
the courts or Sierra Leone. He
was fined in the RcMorder's Court
for alleged contenii)t of court wliile
engagcii in conducting n cause. He
prayed for s|)eeial leave to apiK-ui.

Lord Cranworth said that tiie
lUfordei '.s Court was a Court uf
Record, and, therefore, the orders
made by the court in the ixer(i.«e
of its di.scretion, iin|)osi-,g tliw^
fines, were conclusive, " aiiii wedo
not consider there is any reiiitil/
by petition to the Ji lieial Com-
mittee to review the jnoprieiy uf
HUch orders." "But in the eirenni-
stances disclose*! by this iK>tition, if
Her Majesty's Scj-retary of State
tliink fit to refer the matter to us
we will lie«r it, and advise Hit
Majesty on tlu ca.se." Coiis<i|iihiI-
ly Rainy pres«;nted a petition to
Her >Ja'jesty through tlie Colonial
Oflice.Ht'tting forth the nliove i'mts
»!id praying tluit such petition

B.N.A. ACT, 8. 10).— CRIMINAL APPEALS.

413

iiiigat Im' icferi'nl to ths Jiiilieial
('ouuiiittft', niul that the onlcrs ob-
iivti'il to, uihI tln! coinliMrt of tho
I'liiif .riistu'i' in till- triul, mij;hl 1h^
inqiiireil into Tlie mutter was
siKviiilly rt'tVrn'd hy tlu- Colonial
Otlict' for the coiLsiihTatioii of the
.luilitiiil Coniinittit' to aclvisM' the
Crown. Xo formal upinioii was
ilcliviivil hy the Committee, Dr.
Liisliiiifiton stating it was not
iiisioumrv until tlieir n-port luul

Uvii appjovet'

Her Majwiy

Ipiit see Smith r. Ju.stice of Sierru
Leone]. The report of tht^ Com-
luiiltf nromuiendeil that the lines
U' rctiuoed.

/» re McDki,.«<)tt, in P. C.
Nov.3, 1S(56, 1 L. H. P. C, 1200, was
;i|H'titi()M forleavc to ap|>eal from an
i.nlcrof llie .S. C, British Oiiiana,
cuimiiittinf; the pnhlislier r.f a
lival journal to prison for six
moiitlis for alleged eontempt in
riiiiinii'iits made on the administra-
tion of j...stiee. Lord Westbnry :
■'Tlicir liin'dships regard this ca.se
of jrn'nt iui|K)rlanee, and one that
iiiii\ li'udto important eonseipuMiees.
Oil I III' one hand, it is essential to
[iivstrven court from all ohstruetion
h: till' I'ourse of jiistiee ; on the
"ilii r hand, it is very desiralde that
ilniv should he a check upon any
iirliilnny exercise of the powers of
iIktoiii'I. Hut at present, having
I'pird to tlic distinction between
iliiii;;s ildiif liy prai'titioners of
niloiiial court-i, and things ih)ne in
tiirla; tliiims t'.(Uic direct Iv leading
loinii'ifi'iciii'c with the ailministra-
I'oiiof ju.stiic, and things whiciido
iiol collie within either o. tl ese
'aii';;orics, their liordshijis are dis-
|»'vilti) jjive leave to appeal, bi;t
"iiliuiit iiiejiidice to the question
"liiiher tbeiv is a right of appeal
'"■ iioi." And by an order the pe-
i:'>oai'r WU.S idhiwed to p\it in his
i'l'M, 'Sllhjeet to its CiUnpctcllcy

'•■iui; iini'Miiiiicd, and notice of the
i'l'ixiil was to lie given to the ju<lges
"l tlk' S. C. ot British (Juiana.
'li'i|ii('stion of the coin|M'tcncv of
''"• iij'H wa-i heard Dee. I, IHUH,

befor.' Lord Chelm.sford, Wood, /« '« M( Duii-
L..I., Sir James Col vile, and Sir """'•
K. Vanghan Williain.s, 2 L. H.

P. c. ;mi; ;jh l. j. p. c. i; 20

L. T. 17; 17 W. T{. :i5'J. Hehl
leave to a|)j)eal ought not to have
been granted, their Jiordships not
entering into the merits. Lord
Chelmsford .siud : —

" Xot a single ett.se is to be found
where there has been a eoinunttal
by one of the colonial courts for
contempt, where it appeared clearly
upon the face of the order that the
party had committed u eontempt,
that he had been <lnly summoned,
and that the punishment awarded
for the contempt was an appi'o-
priate one, in which this Committee
has ever entertained an ap|H'al
against an (U'derof this description,
'i'he i-ases to which we have been
referred are all ca.ses very special
ii> their eirenmstances, and in which
leave was given owing to .some
peculiar objection to the conmiittiils
for contempt. In the case of Mag-
nus Smith r. Tlie .Inst ices Sierra
Leone, H Jan. 18 II, I] Mo... P. C.
■'{01, there was an orde.- of the Ue-
(•(U'der's Court of .Sierra Leone,
disbarring and strikii.goff from the
rolls a priictitioucr ol that court for
alleged contumelious conduct. Hut,
in addition to this order, there was
a distinct and scparnle oiu", ordering
Mr. .Smith to be lined and impri-
soned for the same allegctl con-
tem[)t. Now, the mthU- in which
the Comn; .tee tleidt v'h these
orders bi'ings out the di ''tion as
to the r'lihl to app«'al in ilese ca.ses
in the clearest nninuer. Mr. Smith's
petition was presented through the
Secretary of .State, and, after con-
siih-rable delay, it was, by an Order
in Council, referred to the Judicial
ConunitttH'. Their Lordships, in
ti'iil ease, entertained the |H'tilion
aguinst an oriler for disbarring
Mr. Smith and striking him oft' the
Kill, because they ! ,ld lliiit that
was not an appropriate punishment
for eontempt of court. I'hey took
no notice of the order for imprison-
ment, which they seemed to consider

^- 1

■ . 1 i

ii'- 'fir

411 B.N.A. ACT, s. 101— DISBARRING BARRISTERS.

U\ M

'!'!

Ill IT M(I)wt- to U' in tin- siiiiu' niti'^foiy with the
""'■'^ fiiif ; liiit witli i»';iai(l to the fine

iiii|Hi>«'ii liv tlic roiiii lor coiiti'iii'it,
fii ,;■ DrmsiK ,1,,.^ i„,i,| Uii.y i„„| ;,„ jmi>.ii.-t)(>ii
an.lA..H.M.Kl.l.. ^,^^-. i,^ ,„„|-,l,,„ ,1,,.,. ,.„„,,, „„

ciiti-rUiiii till- it|>|i«'ul. Ill tlif <.'as<-
ot' Dtrtriiic iiiul Arriiidcll, 121 •liiiii'
IHIl, :< Moo. I'. C. Ill, tli.Tf wiis
nil ii|>|ilii'atioii, Iip4 of all, and
^|x■l■ial IcuNC <;iiiiitf<l to apiM'al
IVoiii two orilffs of tilt' Sii|ir(iii«'
Coiirl of liriiisii (iiiianu sns|i<'n<l-
iii^ till' iMiiiioiurs from |»iiMtici'
for ^4i.\ iiionllix. Tlu; ordt-rs in
tills cast' \\\'\\> rcvorwd n|M>ii tlu'
hiiiiu' <;r<iiiii<l as in tlu- pn'vious
ciisf to wliifli we liavi! refcrn-d.
Ill HaiiivV CUM', 8 Moo. 1'. V.
'17, liotii tilt: oases |uv\iously if-
IVrrnl to wtTc i'itt'<l, and, tluTi-forc,
tlicir Lordsliips had Ix^fort* tlicni
till' I'oiisidcratioii of the whole
/)» !•' ^ .1 vcK, i|ii('stioii as to the [)ro|rri«'t_v of
ciitci'laiiiiii^ ii|)|ii'alsof tiiisdt'scrip-
tioii. I'iuKt iIii'sc ('iiTiiiiistanci's,
their Lordships entertain no don'nl
whalfvcr as to the jiroprielv of de-
ciding' that ill this i-iim: the ri<;lit to
appeal oii<rht not to have Ix'eii
jiranted."

.SV« I)e Soii/a's cnse, where
leave was jiranted in n eonteiiipt
case, iiiist, p. I2tl.

The fact", ill Smith r. .Iiistieos
Sierra Leone are given in the pre-
vious etiM', hut it may Ih' ohsi^rved
that was a |M'tition presentei
thioiijih the Secretary of St-40.
Then' were present Lord Hidiii^hain,
Kixkiiie, .1., Sir .las. Wighani,
^' ('., and Dr. Lll^hin;;ton. lionl
Uroiijfham, > .Jan. iHll, ,'{ Moo.
1*. ('. p. ."Hi", delivered an opinion,
ill which he said : Their Lord-
xhip >.;e clearly of opinion that
'.he onlei for strikiii;^ off the rolls
was without any foiiiidatioi! what-
ever, oiijjht not to have Im'cii mad",
and must be rescinded. Thev are,
however, of opinitiii that they can
make no order nspeetinn tlie line
ilii|Hi.sed hy the court helow u|X)ll
Mr Smith, hut their Lordships ute
In r» roLi.Aiiii. «'learly of opinion, on the whoh' of
the e\ideiice in this euiise, that
there is nothing whatever to uffi-t't,

in iinv resp«'ct, the chnnieter „|
Mr. Smith."

//I rv DowNiK and ARHisnEii.
That was acase of two a|)i)(iil.sfi„||,
two orders of the S. C. of Biiii-li
(iuiaiia,sii>pendiii>;froiiipiiii'tic'i'|'i,i
si.\ months two coun.sel. Leave to
np|M'alwasfria;ited. Lord Hioiinlmni
delivered the jiid};meiit of tlicCdUi.
initte<>, holding the order of >iis|hiii.
sioii ought not to have heen iiitii|<';
that it was not such a coiii<'iii|il n-
to wariimt the orders ininli' ii|h>ii
them, and Her Majesty wmilil U
advised to reverse them.

And sec Mathews /■. Wiinin,
179H, I & 5 Ves«'y, ISC. iiiul 'IW
rcspcctixi'ly.

Appeal where the Wrong Pnnish
ment is Inflicted.
In re Wallace, Nov. 'l^ IHOC,

1 L.U. P.c. i»h;{; ;|(5L..l immi

[present. Lord Westhiiry, Sir .1
I'olvih', nnd Sir E. V. Wiiiiinih ,
decided that where an iittoiin'V ami
liarrister acting not in iii'* indlo-
sional character, hut as a |iri\iiir
suitor, commits cr>ntenipl of cipiiii,
the court [in this case the S. (' ..i
\ovii Scotia, consisting nf fm'
judges] ought not to iiillict 11 |iin-
fessioiial punishment of iinli'lln'i'
suspension for an act whicli.yifr «',
did not render him for tlmt iici,/)i.-
sc, unlit to remain a priui it inner.
The N'ova Scotia judges I'olinwnl
Lechmere ('harlton's ciik', 2 My
.*^ Vr. .'IK!; hut instead el iiitlie'l
ing 'he ordinary and loiig-iiailixil
[King r. Clement, 1 H, \ .'li'l
'ilSj kind of iMinishiiieiit, iii.i.;. I'.
niicand imprisonment, for Wiilliiii'-
contcin|)t, committed in hi>cii|iiifiiv
as a suitor, tliev siihstiliited luiiffir-
cut kind of punishment Iroin ili'
ordinary, iiamciy, siis|H'iiile(l iiiii!
from itrr.iiicc for an act wliiili, /*'
»!•, did not render him iinproiieri"
remain us a iiriK'titioiier of ill''
court.

Ih re Poi I.ARI) (h Iwrrister ami
Quwn's c.)uiis«'l nl Hong K^fl
.luiiel(l,lHOH I pri'W'ni,Sii \V Kiii.

B.N.A. ACT, 8. 101.— DISREGARD OF LEGAL PROCESS. 415

Wood, Sl\vTn,L.JJ.,Sirtl. Col vile,

iml Sir K. Vaiinlmn Williiims],

2 L. H. I'. C. 10(5; 5 Moo.

j> ('. v. S. 111. I'ollaitl's |H'ti-

imn \vii> l(HWiii<l<'<l liv tlic (lovi'iiior

In Hit .Miijisi y, wlio, iiiiilcr .'{ it I

Will. I. '•• II. ■*• I. rft'i'iTtMl the

iiiiiltcr ti> tiic Jiiiliciiil ('oiniiiittff

lor tlit'ii' opinion. Tin- ]M'litioii

;i.k((l till' M'ltiiifi iisidc ol" an ordci-

tiiiiiii.'. Ill- in llif altfrnativf siispcii-

.idii t'oi' 1 1 days, tim |M-titioiuT l'«ir

all(j.'cil <'iintt'm|it. TIk- iM'tiliuni'i-

had n'c<'iv<'d no notice of the s|M'-

citii' oiTfiKv cliai-'ifd, iiur had any

(,|i|K>rlniiity of •rotcstin^' Ih'cii

I'iu'ii ' ■ ' ill) III'" allt'ficil con-

ii'iii|>i \viix in diM'i's|ici'l fully ad-

iliv-.«iii',' llif Cliit'f .lu.stii f (.Sinnlc)

uliilr cciiiiliii'linn a cau.M'. Tlicii'

!,iii(lslii|i>* in tlu'ir report to Her

Miijc-ly, l!' .lunr 1>"K). dvised

the ii'iiii--ioii (»f the line of .s'J(M)

(III the ^.Tdiind ; '^ that in their

iiicl;;m('iil no [h , should Im-

|iiiiii'^ln'd for eorifoii>!tt of <'0urt,

Hhicii is a eriiu:' .A \<i'i: : ee, unless

llir >|H'cilic olTeU'i' ' !i Sijfetl a<raiusl

liiiii Ih' ilistinetly s!at<-<l, a!id an

ii|i|Hii!iiiiily of answerinji it 1m'

:'i\i'iitoliiiii, and lliiit in the pi'es4'iit

i;is> ilii'ir Lonlships were not saiis-

liiil that a distinct clinrp' of the

"Ifiiirc was siate<l. with an olTer

!" Iii'iir the answer thereto, Ik 'fore

«iiii'ii('i' wa-. passed; (2) tliat it ap-

l»iiivil(iiai .Ml'. I'ollard has received

' iir viiii'iice lor six sev4'ral oiren-

"«, aii^l that, in the statena-nl ol"

iii"'^' alii';.'i'd olVeneis, iheil' Lord-

>lii|i« wiTi' not sitisticd that each of

llii' >ix aiiiciuilted to a contempt of

I'liiii'i, di' was lei;ally an <drcnco.

Ill Kofs r. Till (^iKK.N. .IiineH,
Mill .\.('. (t.V»; 7t» 1-. T. N'.to.
All ii|)|M'al for special leave to
•i|'|«iil in fitrnii'i funi/H-rh iioiu
■* (' N S. W. from a etinsii'tioii,
on till' croimii that the chairinap
»i i^iuirter Sessions eoniniented to
'l"'j"n (III tile fiiet that till peti-
'i"iiii 'lid not, Im'Im^ an admissilde
«iiii.sv (leiiv on oath certain alle-
W';"lis. Uefiwd. Lord Ilerschell.
'•' .ill ilcliM'i'injj judj^ini'iit, wiid

[there Iw'ing als^) present Lord Kors r. Tm;

ILdthouse, Lord Macnafrhfen, •^i' ^'^•"<•

J.,ord Morris, and "-ir H. (.'ouch):

" In the case of «:v partf Deeiii-

in<;, the then Lord Chancellor

[Lord llalsliiiry ), dclixeriiif; the

opinion <d' the Moard, (piotcd

from the jiid^ini'iit in Dillet's case,

\'l App. Cas. p. 4(i7 [a jud-j;-

ment ilelivercd liy Lord Watson),

the followin<r passiifjc, of whi<'h

their Lordships entirely approve.

'The rule has Im-cii repeatedly laid

down, and has been invarialily lol-

lowed, that Her Majesty will not

review or interfere with the course

of criminal procei'din};s, unless it is

shown that, liy a disi'e<;aril (d' the

forms of lepd process, or l»y some

violation of the principles of natural

ju.stit'c, or otherwise, suhstantial

anil <;ra\i' injustice has Im-ch iloiie.'"

Ill IT I)ir.l.KT's Cask, March 1!), /» re Dmi.bt's
1SS7, Wheeler's V. C. Law, .'l!", '''"*■•
3()7; 1*2 App Cas. J.-iO ; ."id L. T.
()1"), Icaxe was allowed, 'JO March
1H8(>, liy Lord Hlacklinrn, Lord
Moiikswel!, Lord iloldion-e, and Sir
U. (iMich. Di; I was a harristcr
praeii>inj; in Hritish Honduras. He
apjiealed a^jaiiist a xerdii't of a jury
Ihalin^ him j;uiliy <d' perjury, and
also a<;ainst an order id' the Chief
.Instice direetin>j: the appellant to
lie struck olT the roll

Hy Onler in Council 12 i»iij;.
IHSi"), Dillet's |M'tition ;.nd e.vtracts
were ref'-rred to the ('hief Jiistieo
to make such vdiservatioiis he
tlu)u;;hl lit, and to 1h' at liUrty t >
ap|H'ar. The Chief .Instice for'
warded his oliserxations to the
Hef^istrar, hut did not apinar.

These (diMl'Mllions Mere suluililted

to the |{)iaid, ami, upon their rejiori,
l)v Oi'di'i- in Ciiiineil. date<l 'A .\pril
iHMt. the appellant was allowed to
jirose 'lite his iippeal. In allowiii;r
the appeal. Lord Itlackl'.irn said :
"In Falklan.l Islands Co. r. The
(Jjueell, 21 .lline ISti.l, I Mo... 1'.
C. N. S. p. .{12, it IS said l:y Lord
Kinnsilown [there also la-iiij; pre-
sent Kni^lit llriH'c and Turner,
L..I.I.. and Sir K U»anj, ' It mav

! :|i

In?

416 B.N. A. ACT, 8. 101.— NEW TRIAL IN FELONY.

, ■:(

i i i!

Cahk.

Drkmino's

C'ahe.

t Wti

In re Diu.kt's lie us.mniiHl tlie Queen has uiitlio-
rity, hy virtue of her lu-crogntivc,
to rnvii'w the dKci.sions of all
colonial courts, wliftlicr the pro-
cciHliii}i;s 1m' of a civil or criminal
character, unlcsM Her Majesty has
|)arte<l ^)'ith sue h authority. But
the inconvenience of entertaining
such ajUH'als in cases of a strictly
criminal nature is so great, the ob-
struction it wouhl offer to the ad-
ministration of justice in thecoionies
is so obvious, that it is very nirely
that applications to tliis Boiinl,
similar to tlie present, have Iteeii
attenilc"! with success.' In this
statement of the general practice
their Lor(lshij)s agn-e .... But
they thiiik, aft«'r consiilering the
ob.servations of the Chief Justice,
Mr. Dillct ought to be permitteil
on appeal to show, if he can, that
on the grounds stated in his thir-
tei-nth reason the conviction was
obtaiiu-d in a maimer .so unsatisfac-
tory that the conviction alone oug'it
not to Ik' conclusive a.s a groimd lur
striking him off tiie rolls." It ap-
peart'd the issu<' the jiuT "ud to try
was whether the accused was under
tile influence of liiiiior on the oeca-
sion libelled, and whethei' he knew
and beiieve<l tiiat h(> was so at th«>
time when he made th(> afVultivit to
the contrary. Their Lordshi|)s
found that the remarks uukIc by
the Chief Justice to the jury
grossly misrei>resentejl the real
issue, and was most nid'air to the
accused — [theChief Justice told the
jury if they accpiitted Dillet they
would l)rand the Attorney-General
of the colony, a nuigist"!(te, and
others, as perjurors, and, without
iM'ing sujiported, nuule state-
ments of a visit of the .lecused
to his, the Chief Justice's, private
house] — and that a conviction ob-
tained by such unworthy mean.s
could not Ix' permitted to stand.
And their Lordships directed acf)py
of their judgment to be forwarded
to one of Her Majesty's Secretaries
(»f State. On tlie hearing of the op-
jieal, Lord Watson gave utterance to
the (Missage given in Lop's case, that

" Where substjuitial and grave in.
jnsticti has lieen done, there is n
reason for inU-rfering with tbe
course of criminal procedure."'

In Dekmino's Case, [1H!)2] A.C.
422, leave was refused Present,
Lord llalsliury, L.C, Lord Hir-
sclicU, Lord Watson, Lord Miic-
naghten. Lord Morris, Lmd
Ilannen, Lord Sh.md, and Sir
llichard Con-ii. The petitioner lmd
iM-en sentenced to death in Mel-
bourne for the murder of Kiiiilv
Mather, at Windsor, Vietoriii, It
was alleged the prisoner was in.siuie
that no time had Ixen given for u
fair trial, and that medical evidoncf
of insanity ha<l Iteen received sini'c
the trial. Leave refu.sed.

Lord Ilalsbnry, L.C.,sai<l : "Then"
isnothingsuggestedor.surini.se(l,(in(l
c(Ttainly nothing actually vtriticd,
by affidavit of any |H'rson I'aniiliur
with the facta thems«dves — Ucniisc
the distance from the colony would,
no doubt, render that .lifliciiil to
obtain — v.'hich brings it near aiiv
of tlie cases in wliieh this Himrd
has thought it right to intfrt'iTi'
with the administration of criininal
justice," and it was iiiipossiliif
that the apfilication could lie suc-
cessful. If it were, it woiiki Ic
easy for anyone in a distant coliuiy
to stay (>\eciition by siniplv st'iid-
ing over such material as !<u|ijdii'd
in thi.-icase. In Kiel's case [10 App.
Cas. 67o, and posf] there was ii re-
spite and post|)om>ment until tin'
papers arrived.

Leave to Appeal in a Divorce
Action. — Allowed in Le .Meiinii'rr.
Le Meuiiier, 17 March, [1H91]A.
C. 2H:\ [pre.sent. Lord Wat s'Ui, Lord
Maenaglitcn, and Sir 11. ("(uulil.
The case was from S. C. Ceylon,
Tliea|)pealable amount fixed liytlio
Charter of Justice is Bs. .'i.OCKi, Imt
by the Code Civil rrweduie. m9,
a certificate of fitness of a|i|K'al, it
would ap|K'ar, might b- gniiili'<l
irresi)ective of the money value.
The S. C. had refus«'d 'leave to
appeal from its <l»'cision reversiiij;
the district couri of Matiini, and

TIN.A. ACT. s. 101.— niOAMY & V. S. DIVOIUK.

(li><iiiis>iiifi iIk' i«'fitioni'r's nction,
wliicli w* '""' '^ <livf>i'<'t' '>>■ ri'iisoii
cii lii.'* wilV's •illegt'tl luliiltfry. lit-
■innici! tli:il trcpdoin IVom liiihility
i,isii|iji()rl II witV must Iw of imire
tiiliif lliiin tilt' iippeiiliihit' iiiiioiiiit.
S|K'(iiil li'iivc {;raiitt'(l.
Ill F.i ptirle Macuea, Miiy l.'l,

iiso;t| A. (". .iM); (5!) L. T."7;n,

ill,' |H'titii>m'i' was coiiviclod Itv a
jiin, miller the Indian Penal Code,
1,1 iiii iillfiiipf lo ''lit-nt. Ili'ld IK)
,iis'l'iir sjicciiil Icaxf. Lonl ITi-r-
V hrll, li.C. 1 lliJTc licinj; also pivst-nf
|,i,iil WalMiii, liord Munis, Sii' W.
1'i,iu1i,iiimI till' Hon. Clfo. Di-ruiian]
Slid; "Tliin- arc, no doiihl, very
>|Kriiil luiil I'xcfptional c-ircuni-
'i:iiurs in wl.icli leave to appeal is
;;riiiitnl in rriuunal eases; lint it
\\„iilil 1m' (onliary to the |)nu'liee of
ilii' Hoaiil, and very iniscliiovoiis,
ii ,iiiv I'liiinli'imnee were {^ivt-n to
ill. \ii'\v lliiit an appeal would Ix'
;ill,iwc(l ia every t'lise in which it
,,.iilil U> shown that the learned
jiiilp' hml iiiisdireeleil the jury."

WliiTc there is no jurisdiction
In In llie |ietitionei' I'or the allef^ed
liffiiiir, siiecial leave will he grunted.
ViuIiimI r. Att.-deii, ol' New
S„Mlli Wiile., July '1\\, [1H01| A,

1. i.m; m L. .1. 1'. ('. W; n.j

1, r '.Vl\ liHi'M'nt, Lord Halsliury,
1,1', Liiiii Watson, Lonl lloli
lii'iN', Liiiil Maenaf^hten, and Sir
II Cimrh].
in tliiit ruse Maeleod niarriud,
'■' ihr niliiiiy of New South
^^ili'S one y\. ^L, ami in her
iiliiiiiic he was married at St.
I'liiis, in the United States, to
^1 K t'. He was ai'terwards tried
''"I iiiiiviiicil in the eolory ol' New
^"iili Wales lor Iti^^amy, under the
I ^itioii id' the C'liminal Law
. Amiiiiliiient Act, 1HH;{, K! Viet.
P S.W.) N'o. 17:— "WhosiM'ver
luiiij; umirii'd marries another
,l'r»nn iliirini; the life of the
p'Tiiinr InisiMiiid or wife, where-
["^w such .second marriap'
j''*'^ liliue, shall Ik" Uahle to
iiul scrvitiiile f(,r seven years."
|"l»ri' v.as nil allcjrntiiiii that the

;< !!340.

first nuirriage had Ikh-u dissolved Eje parte
in the rnited States. Lonl *'Iac"R^-
Halsle .y, L.C, said: "'Whereso-
ever ' may Im' read, ' wheresotiver
in this colony the offenue is com-
mitted. . . Upon the face of this
record the offence is cha;'(»e<l to hnw
iH'cn committed in Missouri, in the
Uniti'd States, and it therefore ap-
|jears to their Lordships that it is
manifestly shown, beyond all possi-
liility of doiiht, that the ofTcnee
cluirffed was an offence v iiieh, if
committed at all, was coimnittcd in
another country iH'yond the juris-
diction of the colony of New South
Wales. The result must he that
there is no jin'isdiction to try the
allei^ed olTcndir for this oiVence, and
that this conviction should i-t- set
aside." HIm Lordship then sjiid :
'' If tht> leirislatiirc had intended the
wider constriu-tion to he applit>d to
the statute, it woidd have heen he-
jond the jurisdiction of the cohmy
to enact such a law. Their juris-
diction is contined within their
own territories. ' Kxtra territorinm
jus dicenti impune u.ni pirctur'
Would lie applicalile to such a case.
The jurisdiction over the crime he-
longs to the country where the
crime is committed, and, except over
her own subjects, Her Majesty and
the Imperial Legislature have no
power whatever."

in Lkvien r. Rko., July W, lS(i7, Lkvien i: Hwi.
1 L. U. r. C. 530; .30 L.' J. T. ('.
02; 10 W. R. loP, there was a
petition for special leave to ap|>eal
from a conviction of a Jamaica
court, whereby the appellant was
sentenced to imprisonment for
piiblishiiifj a seditious liU'l. Leave
was granted, without prejuilice to
any objection which might Ih* taken
thereaffer on the part of the Crown
to the jurisdiction of Her Majesty
in Council in the nnitter. At the
time of the petition, which was
grauicd by Lonl Wensleydale, Sir
J. T. Coleridge, and Sir E. Vaughan
Williams, 0 July ISOO, the
pri.soner WMf" in prison under the
sentence of v/hich he complainetl.

.11!

:!i'ii

r- ill

Lkvibr I). Rko.

Ki:(i. r.

MlHI'llV.

AlB B.N.A ACT, s. 1(H.— ll..SrT/rLESS LITIOATIOX.

Since llicii lu! Iiiiil Im'cm rclciist'd
iijion liis own iiiciiinrial, iind liixl
iccciM'd all tlic siilislmitiiil hciicCils
f)!' ti IVcc piiiilon. Stopping the
I'lisc, Lord Ciiirns siiid : " Now,
Inn in>r lizard to tlic princi|ilt's upon
tt'liicli flit'v have always actt'd wln'ii
lfa\(> to appt'al iii a criiniinal cast'
has listMi jjiaycil lor, princiiilcs
wiiicli wcrt- I'nlly rccoj;'iscd in tin"
case ol' till" Falkland Islu.idfi t'o. r.
Tlir qwvu, I Moo. IV ('. X. S.
2Slit, tiiiir Lordsliips liav«' no
lit'sitatioii ill saying that if at
till' time when tlii' petition of t!ui
appellant for leave to n|)|M'al was
lieanl the liicls wliieh now apiM'ar
eoillii have heeli iiuide known to
their li(ii'dslii|is, tile leave loappeal,
whifli was j;i\eii, would not liave
lieeii ;iraiited," Appeal dismissed ;
no ^ood purpose eonid lie answered
l>y eiiicrljiiihiiji it further.

Where the tpiestioii was one as
to the rij;lil of .•Iiallen;;e of the jury,
speriiil leave to ajipeal was •'ranted,
lievinp'r V. \U-)i. (from S. ('.
Vietoria), .Jiilv L'o, 1S70; .'J h. K.
r. C. L'n2; ■{'.) I,. J. I'. C. »!»;
'J.'{ li. T. .'{(!2 [present, Lord
Cairns, Sir .1. CoMIe, Sir .fosepli
NapierJ. Or ini|irisoiimeiit of a
IMT.son on the "iroiind of alle^^ed in-
siiiitv, .Sinclair /•. Hroiij;hion,

.lime" :>:i ISS'J; WheehM's I'. ('.

La«, IHI,
111 Ur.n. r. Miiii'iiv, Feh. (»,

iHc.H, 12 L. u. IV (V .T); ;w L. r.

IV C. .).{; :>l L. T. :)!)N. In N.w

South Walesa verdiet of (guilty for
iniirdei had lieen s» t, as'de liy the
S. ('. N. S. W., and ii vrnirr ile
HiH'o for u now trial f^ranted.
Special leave to appeal was <;runted
liy Lord Westl.iirs, Sir J. Cohile,
and .Sji H. Kindeisley, n|)on the
same I'onditions as in l{e<^. r.
Hert rand,.) line 2«, lHV>i, 1 L. H. IV

r.r)2()i:mL.J. ivc. r)i; kil.t.

T.I'J, which wen that the prist)ner re-
main in prisfi'i iinlil he Im- delivered
liy (hie ■■onise of law. That was a
ea.se in wliicli, in the lir.st trial of
the reH|)ondent Dertrand in Nev/
South Wah's for iillerr,.d niiinh'i,

the jury disagreed. On the .^ecoiKl
trial the Chief .In.stice, instead df
having Piieh witness exaiiiinod nj;aiii
at lengtli, read over to each oik'. Ijj^
evidence in tlie former trial, ninl
asked him if it were true, 'I'li,,
Chief Justice also allowed tliecliiim
of the Crown to reply. 'I'll,. |,..
spoiident was found guilty. On
apiK-al to the S. C. N. S. \V. tlie
court ordered a new trial. Tln'
Att.-(Jeii. of New South Wiijis
applied for leave to a]ipeal, uiiich
was heard by Lord Wenslcviliiii-,
Sir. J. T. Coh'ridt!:e, and Sir K
Vaiighan Williams, and iillowid
At the hearing, the alnive l)(iiii,|
was joined liy Sir W. Erie, Kdlv,
(Ml, and Sir 11. T. Kiudeisl..;,
(ihe iiresent Lord Clianeellor, Linj
iralsiiiiry, and Sir K. Clarke Uin;;
eonnscl for the resjiondeiil).

Sir i . T. Coleridge, liav iiif,' slalnl
the ..iiove facts, said ; " I'lioii ilii-
statement 't \ -is eonteiided, iir>i,i,ii
iH-half of the res|Hindent, that llicir
Lordships ought not to eiitcitain
the ap|K>al ; hut they ihi nut iiccnlr
tothis. I^jK)nprinei|)le,andonivlVr-
eiiee to the decisions of this ('wii-
inittee, it seems nndeniahic lliiiliii
all cases, criininal as well as civil,
arising in places from wliidi nn
appeal would lie, and wlieii', liilur
liy ile teine^of a charter or ^llllll^,
the authority has not U'eii |iiiiti''l
with, it i,< tlu> inherent prercifpiliii
right, and, on all proper (wcii^inD",
the tliity, of the Colleen in ('iiiiiuilii
exercise nii a|i|Mdlate juiistliclMi,
witlia\iew not onlv i^i ell^M^ >i)
far as may 1»" tliediiea<hiiMi>iniliiKi
of justice in the iiidividtiid cas.k;
i\]sit tc preserve the due cnurN :
procedure generally. Tin' inll•^^'
of the Crown, duly considi riil,i< *
ha-^t as great in these ri>|»il< i: ,
criminal as ki civil eases; liiiliM
exereis«> of this prerogfttive i-ii"**
n'giilated iiy a consiih-ialion il
cuiD'^tancesnnd coiis»-<|ueii(TSi «i-
interference hy Her Miijc"') -
criminal ea.ses is likely in ^n i»^i
instances to lend to mixliii'f i«l
inconvenience, that in iIh''" *I
Clown will he \ery ,-<lii\v in e\Ml

•loi

"fs i I

•<' TlleiJ

"'■'I for ji

■",'ixtilil
ivofnn,,.

nXA ACT, ». 101.— I'REROGATIVE & (RIM. AIM'. HO

tiiiii iiii n|)|«'iil by its officors on Itc-

liiilf of itst'U or by indiviflimls.

TlifinstiiiicfsofHuc'li iipponls hciiig

ciitcitaiMcil arc tlu'reforc very rnrc.

Tlic opinions .stnfpcl l»y this C'oni-

iiiittpc ill till' rnsp of //» rr Ames,

llMiiy IHH, 3 Moo. P.O. 40J);

He", c. .Tovki.sson Mookcrjw,

l,i?liii.v 18fi2,'l Moo. P. C. N. S.

'1T2 ; liiiti tlic ralkliinfi I.sIhikIs Co.

(• Till' (iiioon. l.'J June 1S0.'{, 1

Moo. P. V. N. S. 290, ostalilisli

ilicM- propositions. Thf result

ii tluit any application to be nl-

liiwcii to api)oal in n criniinnl oa.s«'

(nines to this Conunitteo lalmiirinp

iimii'r n <;i('iit preliminary difliriilty

— H (lilliciilty not always ovoreoine

liv tlio mere suggestion of lmr(lshi[»

ill liie ciiTunistnnees of the ease,

vrt till' dinieulty is not invineiblo

... it niiiy be safely sai<l, tliat

wlu'ii tlie sii^'gestions, if true, raiw

i|ii('stions of ^reat and geneml ini-

iportaiiw, and likely to oe«'ur often,

iiii,! also where, if true, they show

till' due and orderly adniiniatrntion

111' the law interrupted, or diverted

into a new course, which niif^ht

iivate n precedent for the futun';

uiitl also where there is no other

iiiiaiis of preventing; these eonse-

i|iii'ni'('s, then it will Ik' projM^r for

iliis I'diiiiiiiltce to cntertuin an ap-

|"»1, if refcri'ed toil for ifsdeeision.

Till' imsent eas«i <ipi)ears to i'nll

willii'i this cate>j;ory, on the aUe^i-

liiiiis (if liotli parties; oji the one

[ Imiiil, it is dear that the eoiu't be-

liiw has I'.iiccied a new trial in a

I <■!-<■ (if felony ; it is ftlle^fed !io siieh

jtiialinn 'iH' had aceordin;!; to the

juiiifiiriii pne'iice i i our eriniiiial

IJHw ; if tills ailepit'.on 1»e correct, it

IJ" I'liviou.s iliui an innoviiiioii !ias

jbiii) iniidi without niithority, one

|J>I .;ieal iiii|iortance, and establish-

[lli^'a iireced.iit wliicJi may be e.ic-

icilod to I* livipicntly acted or.."

■w en.se.s cited above 'vero In re

^MKSUMnv IStl, 3MfK). PC.

r.y There Ames and others were

Bed for illciriilly taking oysters.

"'Mxtitioiicd fxjiiirtr for special

•vetnnpiipni from the RovnlCouils

of .Tei*ey atf!rinin(; the fine. Sjiecial ^^ '"« Aaw.
leavt' was (^ranted by Queen's
Order, IH July IH.'JS. In 18 II the
Att.-Oen. of .Jersey petitioned that
the Qint'ii's Oidcr allowing:; the
appeal should lie reseinde<l, as ob-
tained by surprise and a{j;ainst the
law of Jersey, whi(di allowtnl no
appeal from the Royal Cotnt of
Jersey in criminal cases. Appli-
cation to (lismi.ss the ap|M'Hl allowe<l.
Baron Parke .saying : " We are dis-
po.sed to .say that we ought not to
have recommended Her Majesty to
have allowe<l the appeal, but we
are not (lis|K)sed to say that we
have not the jmwer.soto have done,
lis Her Majesty is the head of
justice, and we are sitting here, rtt
merely as a judicial liody, but as
Privy Councillors."

ReC. r. JoVKISSKN MOOKKIUKK, \Uai. V. Jov-

n\ Julv 1H(52, 1 Moo. P. C. N. S. ""*"»•' -'""■
2 1 2, was u case ot conviction lor i(W-
gery by one of the native criminal
court.s of India. Dr. Lushington,
in refusing leave, said it ap-
peared injustice may have iK'en
(loiu*, but the coiiseipiences of ad-
mitting an a])petd in such a case
were so entirely dt strut 'ive of the
atlmiiiistrationof all crin inal juris-
prudence, that they foimed their
Judgment to disallow the ap|H'al ;
but they did not doubt justice
wo'ild be done, as ihev suggested
that an ai>plicjilion slu)uld l)e made
to the constitutn. authorities who
have the power to afford a remedy.

In TiiK FAr.Kr.AND Islands Co. 1'ai.ki.ani. 1».
V. I UK QPKKN, 13 June 1803, Tiib QirK.'i
1 Moo. P. C. N. S. 299, leave
wre. granted U'cause the (piestions
v, ised, although in form criminal,
were in substance rather of a civil
nature, uamtd , the right to kill
wdd animals, a question of proprty
iuNolving the rights of the Ciown
tuA its grantees lliroughout the
Isdkland Islands. Lord Kings-
down, after (Stating the sentence
given aboM', jmp' 11(1, that Her
Majesty has authority by virtue
of Iter prtMMigative to review the

DD 2

I !

Mji

Fai.ki.anp Is-

I.VNUH Co. ('.
TlIK (Jl'KKN.

I ma

J{Kil. I'. C'oiilK.

I.iiiiH hi:
Son /A.

420

n.N.A. ACT, s. 101— ENOIilSH HAllRISTKIfS.

MAIKAItl.ANK ('.
l,Kt I.AIIIK.

iliM-isiiMi of III! t'dliiniitl courts,
\\'lii>tli*T tile prot'i-cilin^s In- of a
cixil or criiiiiiiiil I'Imiiu'tcr, iiiiIosm
Jlcr Majt'slv 1ms jNirlfd with such
uutliority, siiiil : *' It is olivioiis tliiit
tliisi|iiostion isol' too ^rciit iin|iort-
aiiccto iiiiikc it lit tlint it sliouiii Ik>
iiniilly coiicliKlcd hy ii suiiiiiiiiiy
conviction in n jioiicc coni't.

Stro/so Ksnonf r. Att.-Cicn. of
Jersey, .'{ March 1HH.<, H A|i|>. ("as.
.'{(II ; iVJ L. J. I'. ('. '2l\i aiul
WIiccI.t's IV V. Law, 2(M,

III I{i:<i. r. CooTK, from a judg-
ment of till' Q. n., (inclicc, on a
case reserved under ('. S. L. ('.
c. 77. ss. 57, ')l^, on a trial of
("oote for ars4in. Coote was foinid
jiuilty of arson. The case was re-
served on llie admissiliilitv of evi-
dence. ThoQ. H. (incU'c, IT) Man li
iS72, held the evidence did not
justify the \enlict, i|niislicd the
conx'iction, r>rdered ti new trial, and
refused leave to a|»|ieal. The
I'rivv Council }i;rantcd leave i(»
May' 1S72; and IH March IH".'},
I Ii". U. 1'. C. .-)!«»; fj Ii. J. ]'. C.
If); 2!) h. T. Ill ; !) Moo. T. C.
N. S. I().'{, reversed the decision of
the (j. M., and directed the projaM'
sentence to Im' passed.

In the case of liOt'Is I)k Sol'ZA,
Dec. 1, IHSH, AVhceler's l». C.
Law, ')2!), special lea\e to apjwal
was allowed from an order of the
Liiiish (4uiana Court, imprisoning
the p«'titioner, a barrister, (ininjj
him, iind depriving him from pnic-
tising for a year for all 'ged con-
tem)it in certain letters to a ncws-
impcv. Tint In-fore it was IichimI
J)e Souza die<l.

I)e Sou/a, an Knglish barrister,
•1 duly IHH'), was refused leave to
appeal from n decision II Feh.
IHH'i, of Cameron, C..I., Gait, &
Hose, J..I., 0 X., ;i!) L., Ontario
Judges, (). i{., who refu.scd to allow
him to practi.sc as an E'tglish
barrister in (Ontario, on the ground
that h(* was not a member of the
Law Socir-ty of Up|M'r Canada,
which had been ■'iven the sole

power to admit to practice It. S 0
(1S77), c. i;{H. s. ;{7.

[Hut SCI' the cn.s> of an Knjjli^ji
doctor practising m Canadn, Him-.
r. College of I'hysicians, 1 1 l'.('.()
H. 5(1 1 ; mill note, sec. i)',\. | Sipal,,,,
Dow'iie r. Arrindell, aiitr, p. |l|,
ami /m rr Justices of C. |'. at An-
tigua, (i Ajiril IS2!), 1 Kiiiipp.'Jd;
III the latter case the |H'titioiicr, ImiiIi
an attorney and advocate, hail Inih
flisbarred for various acts (if |i|„.
fc.ssionid and general miscuniliiit in
Antigua, and he prayed the I *ii\t
Coinicil to restore him .o ilic Ilu
Lortl Wynford, after saying ilir
English courts were relii-vcd of ihi,
nnplwi.mmt duty, said: " NowikImi
elites and attorneys have iilwiiv«
been admitted in the colollilllnlnl'l^
by the judges, and the jiicl;;('«
only. The power of siis|H'ii(liii;,'
from practice must, we think, lie
im'idental to that of a<linitlin<{ in
practice, as is tho ea.se in Kiiffljiiul
with regard to attorneys, . . In
a ease [in which the Hecoidii'.
Court had sus|M>nde<l the whiilr Inn
forsi.v months from practici'] wliidi
came before us a short time api
from Hondiay, none of the imnilK r-
of this Hinird doubted that [lir
Supreme Com't there Iniil iuiIIki
rity to prevent Knglisli lwiii«
ters practising before tliciii. TIh'
ipiestion was whether their iinllio-
lity had lieen proiM'i'ly excri'isil
Whilst adv(K'ates in the rolonir-
have an ap|N>al to his MiijiMv,
the power to remove tlicin fimii
practice! can never 1h' ahiis<Kl."J

Appealable Value. — In Ma.
I AUi.ANK r. Lkci.uhk, in 1'. ('
H i'Vb. 18(52, I.> M(Mi. P.C. 181, 1>7;
10 W. H. .'{24, the (piesliiMi m"'
as to how the iipiR'alnhh' viihii' i-
to 1m' (K'tcrtnined. L. liroii;,'lil :iii
action against I), in iiie Sii|Hwr
Court, M(<ntreal, to rccovrr \\v
amount of certain proini>sin
notes, with interest, niiioinili"!.'
in the whole to less tlinn ('**'

[the np]K-aluble amount I'f

.'{4 Geo. ;{. c. 0.] L. issnci ii!*
writ called sfii-iip iirrr', ultiuli

}IN \. ACT. s. 1(»1.— AIM'KAL VALl'E.

121

ii'iit licfoi'i' jii(l;;iii('iit, on tlic ^ooils
(if 1). ill tlic liaiiils of M., anil
olilaiiicil jn(l>;nu'nt tlit'icon iipiinst
till' j,'tKxl.s of M,, wliicli wiTc
„t the viiliit! of i;i,(»12. M.
Slid till' goods wviv Ills, lliionf;li
nil iu>si};miii'iit from oiii- IVovo.sl.
Ijiiivi' liia|)|M'al was gnmleil to M.
Iiv the 1^. JJ. Qiu'Ik'c. On |M'tilion
tiin'sciiiil till' It'iivi' (u a|i|H-al Loril
('iii'liihfoiii said: *' In di'tfriiiiniiig
llii' iim'stiim of the valiii' of tin-
niatti'i' ill dis|iiit(>, upon wliirli tin-
lilllil III a|i|M'aldt'|)t'iids, tlicir lionl-
>iii|is coiisidrr tln' correct coiirs*!
Id iiil(i|it is to look at till' jiidg-
iiiciil (IN it iilfccts tlic interests of
till' imilies wlio arc |trcjiidice(l
liy it, mid who seek to rcliexe
ilii'iiist'lv(!s of it liy an a|i|H>al. If
liii'ii' liiiliility ii|Hin tlic Jiidginent
iMjI'aii iiiiiiiiiiil siitlu-ieni to entitle
ilii'iii ti)ii|i|H'al, llicy cannot 1m' de-
|iiiv('(l (if tlicir right lieeaiise the
iiiiitlt'i' ill dis|iiit«> liapiieiis not to
Ik' III' I'lpiiil value to hotli parties;
aiiij therefore, if the judgment had
Ixrii ill their favour, their advcr-
sirv iiiifihl possihly have had no
|»i\vtr to i|iie>tion it I»y an appeal.
hi liii-i case the elTcct of the jiulg-
iiiiiil WHS to plut't' iu jeopardy the
wliulc of tile goods contained in the
iMpiiut'iii from I'rovoht, for which
ii >"i'i of £1,{H'2 currency had Itt'cn

i«iii ' [.«■(■ p. 4;}2].

That case also decided that where
till' juilgniciit ap|H'aled from is
iiiliTlwiitdiy in form merely, hut
liiml ill its effect as regards the
■li'li'llaiil, it must Ik- treated as a
liiiiii jiuifiiiu'iit. The pomis which
'III' a|i|ielhiiits claimed as their
fwii Wi'i'c "finally and eoncln-
^i^t'ly fixed hy the judgment to Ik-
till' |ii'oiK'rly of the original delitor,
■mil must Im' applied in sutisfaetion
"I liijiililils.aml there was no mode
I'y whidi the apiM'llant could he
ftlii'\?(l from that judgment except
''vimupijcal."

■''AL'VAc.EA ' r. Gaiithier, Q. B.
<H>ei', 18 March 1871, in P. C.
Mayr,, 1S7,, 5 L. 1{. 1». V. 4!)J ;
30L.T.5iO;2l>W. K. 007. The

ilelit in ipicstion was payahle l»y Sauvahkai' v,

instalments, and it was aigned UAuraiitii.

that it was a " matter in which the

rights in future of" the i»artie.s

might III' affecfed, and, therefore,

under art. 1 17H of the Code of Pro-

eediire [.vrr ti/iorr, p. .'{f)7 ), there wiiH

a right of ap|K-al to Her Majesty

in hi'r Privy Council. The q. H.

(iiieliec had grunted, 1!) .Iiine 1K71,

leave to ap|H'al to the Jiidiciul

Committee.

On the apiH'iil coming on to Im;
heard the respo'ident raist-d the pre-
liminary point that the miitter in dis-
pute was lielow the appealahle miIik*
of L°.')(K>,iiiid neither did theipicstion
conic witliii' the exceptions which
allowed an ap|ie!il for les.>. value.

Sir .1. Colvile | there lieiiig also
picscnt Sir IJ. I'eai'ock, Sir M.
Smith, and Sir |{. Collierj stated
the facts as follows: It apjH'ars
that one Martcl was iiidclitcd to
the insolvent Senecal in a certain
sum of inoiicy [considciiihle arrears
of a ipiit rent of .sll.'JHj for which
a rent charge [of .SloO] had Iteeu
commuted. That hiiiii of money
I namely, the S|')(>{ was payiilile
liy instalnici'ts, and it was also
secured by hypothccatioii upon the
land upon which the rent had
originally Ik-cii charged. The in-
solvent Sencciil,a eoiisideralilc time
iM'fore his insolvency, assigned thi.s,
with other choscs in action, to
(hiiithier, the i'cs|)ondent, for \aliie.
hut notice oi the assigiimiLt wa.s
not given to Martcl until Sciiecal
was in insolvent circumstances | in
fact, notice was not given within
,'{() days of the dati- of the assign-
iiieiil to the ollicial receiver, Saii-
viigeau{. (iiiiithicr sued Martcl,
the original dclitoi, for certain
instalments of I hat sum ; thewhole
value of the particidai' dcht so
assigned lieiiig considerably below
the app«'ahible amount of £500.
Ill that state of things the appel-
lant, who was the general assignee
of the insolvent estate of Senceal,
intervened, and there remained no
ipicstion as to the liability of ihe
original debtor; but the simple

122 U.N.A. ACT, s. KU.-VALUEOF INSTALMKN'IS.

S\rvA(ir.AU I'.

OaI'TIIIKR.

' '■ I

(|iit'stioii Iricil in llu> Hiiit, nml
Wiiich is MOW lnoiifiht Im-Foic thi-ir
LoKlships (III iipiM'iil, WHS wlictlitT
tlu> |iartii'iiliir Mssi<:ii('«- (oiild cliiim
tiif siiiii sued for, or wli«!tli(>i' it hail
|NiH8Ptl by the p>ii<>iiil iissi^iiiiiciit
of t]w insolvciil's elTccts to his
^ciH'nil iisHi^iii>c. 'I'lic solution of
thiit qiK'Hiioii, of foiirsf, iI<>|iimi(Is on
the further (|ucslion whcth»'i' 'sig-
nilkiition' or nolicc was m'rcssary
to conipU'lf the title of the [mitieii-
lar assif^iu'c, and whether that
iiotiee had In-eii fi'ivvu in pro|M'r
time. }Iis Lordship, eontiiniing,
Niid ; " It has been ar<jned that iii-
asiiiiich as the partieiilardelit which
was in (piestion in this suit was
payahli^ liy instalments, the title to
it was a mutter in which the ri^rlits
ill fiitiir)- of the parties iiii^lit he
affeeted. But their Lordships
do not think that that is the
true eonstriution of the clause.
The matter in ipiestion was the
whole delit," and the "mere c'l-
cumstances of this debt U-iiig pay-
able by instalments would not
make the case appealable to Her
Majesty in Coiineil if it were not
otherwise appealable. It was
further sii{;;;esteil the same cpies-
tion mi};ht arise in respect of the
other assets comi>rised in the as-
signments to (lauthier, and that
the decision in this case would
govern the rights of the [Nn'ties as
to all thos«' assets. Miit their Lord-
.sliips have not the nie.ins of know-
ing whether the title to those other
choses in action would stand upon
precisely the same ground a.s the
title to that in iiuestion in this
suit ; some of them may have been
reali.sed, and as to sonit of them
notice may have been given long
Ijoforo the insolvency. Their
Lordships cannot a.ssiimc thai the
facts touching these other debts
were before the judges in (.'aiiada ;
and, even if they were, their Lord-
Rhips, cousideriug the wo<le in
which this litigation m'o.s<>, namely,
by the intervention of the general
assignee in a suit brought by the
particular assignee to reuliHe u

small sum as against one ot tlm^,.
ih-btors, and not in a suit bmii^lit
by the geiierul assignee to iiii|H'a<'li
the whole transaction, are luit
satistieil that it was a case in wliiih
th' Court of IJueen's Ueiicli wmild
have jurisdiction to allow the
appeal. The power of the Coini
of (^ueeii's Bench to alhiw m
apiM'iil is clearly limited by ihi'
Code; it has no |Hiwer, ii|him
special grounds not provided lor
by the Code, to grant s|ieciiri Kiim'
to ap|)eal. The question, ihriv-
fore, is, what ought now Id lie
done. Now, their Lordships mic df
opinion this case very much lesiin-
bles the case of HeteiiicM-r r.
OlM-rinuller, Feb. H, IHliH, 2 M(,(..
1'. C $).'{, in which it HjiiHiiivd
that the appeal had been in'i'i;!!-
larly allowed in the colony, iIh'
security not having Ix'eii coiiiiiictid
within the pro|M-r lime, lii ilmt
ca.se Lortl Brougham, having sitiitcij
that the irregularity was tntni In
the appeal as it .stootl, said this:
' The res|M)iident has, liowcvcr,
ap|M-ared to the npiK-al hcrt', iiiid
IcMlged his case. It is clear, llitiv.
fore, that the appellant must ]mv
Im-cii KhI to suppose that any idijii-
tion ou the scoie of ine<,'uliiiilv
was waived ; and though tlitir
Lonlships are of opinion thai tlic
order made by the court InldW. al-
lowing the up)H'al, was, for waul d
the .security iK'ing eomiiletcd, inv-
gular, and could not be cured liv any
waiveror implied consent on tlii'iNiit
of the respomlent, yet they think it
would be a fit case to recdiiiiiU'iiil
the allowance of the a|)|K'al iiimhi a
petition presented for that par|M)M'.
'i"he result will 1m' that the in."^'
must stand over for such applica-
tion.' In that ca.s»' it was lii'ld
that the irregularity was laliil to
the apjK'al as it stood; and I lie
Committee though it thoii;,'lil thai
there might be ground for allow-
ing u Hpeciul appeal, directed tbo
ease to stand over in order tbat
there should be an api)licatioii for
8|iecial leave to ainieal. It hIso
pointed out that the respondent, in

UN'. A. \C1". s lul _IMI'|{()IM:U LKAVK.

t2*l

illitwiii;,' till' ciw lo lie l()(I<i,<'<l, iiii^'lil

liavr iliiliU'cil the a|i|)<'llilllt to .sll|)-

|MiM' tliiil llu'olijirtii)ii oil tlic M-dif

1,1 iiii';;iiliirily was waivt-d. Ami

ii|i(in lliis last point their Lonl-

A\\\i> caiiniti liiit (ilisci'Vf tliat tiir

|,r(i|K'r <'oiiisf, wlifii Miicli a (jiics-

lidii n-i this arisi's, Im to foiiii' licrc

In iN'lilion as curly as |M)ssilil(>,

mill iH'I'iiri' till' cases are lodged,

iiiid llif t .\|)eiise oi' |tn'|iHriiij; tlmse

iiws is iiiciirreil, in order to liriiij;

liii' iHjiiit liel'ore their Lordships,

Mini to p't the appeal disiiiiss«-d.

Il is llirii (i|M'n to their Lordships

Id nriiiniiu'iid Jler Majesty either

I.I iiismiss tlio appeal, in which

I'liM' tlu' pint ies are not put to tlii^

I \|H'iise ul' piepariii}; for the liear-

iii|j; or III jiriint special leave to

:i|i|i('jil. Their lioi'dships, if they

wi'i'i' to ilisiiiiss this appeal upon

liic olijirliiiii now taken for the

liN time, would l)i> disposed to

iliMiiiss il without suhjeetiiij; the

ii|i|K'lliiiit Id the costs, which have

Imii so iiimecessirily incurred.

On till' oihir hand, they are not

im'imriMl lo say that if a petition

liml Ihi'Ii |)resi'iited to them for

>|ifciiil K'live to appeal, there may

not Ik' riiruinstunces in this ease

wliicli Would have induced them to

nroimiicml Her Majesty to •(rant

>iiili hive to iiiipcal. They liy no

im:iiis invite such an application,

I'Ut Iwivf il for the consideration of

llie apinHiint whether he would

lui'tVi- to have the appeal now dis-

iiii>H'il without costs, or whether

1k' would wish the c«w» to stand

OMI, ill Older that he may jireseiit

il in'titioii for special leave'to apiieal

"jKiu Mifh },'roumls hh he thinks

i"i;:lit iiuhice their Loi'dships to

nvdiniiK'iul Her Majesty to give

tliiil leavi'.

"It in iilso to be considered that
m lliosf cases in which an appeal
'"'^iiij; Ih-'cu iiregularly allowed in
"if t'olony, special leuve lo appeal
''"* bit>n gninted here, their Lord-
^liips have always required fresh
wirity for costs to be given."

Time whs ^rjvcn until the 15th
Jiint; to lodge a iK-tition for siR'cial

leave; if the petition ^yus not lodged i^vivAiiKAt' r.
by that ihile. the appeal to .stand ^'-^'•'T'"'"-
disiiiisM'd, without costs.

hi Lamiikin r. Sorr.t Ka.st L.vmiikin »■,
IJwi.wAV Co., in an "•Pl'''i'"''<»'' '^".\.".'..!!'l'^^
Dec. 1877 to the I'rivy
siilisecpicnt priH'ecdings

miah> 1'2

Council

reported

H.\II.WAV ('

J-'eb. ;{, IHHO, 5 A pp.

Cas. ;{.VJ; 2H W. U. h;{71 for
special lea\<' to appeal, it appeared
that Lambkin obtained, \',i Sept.
1H7.'), H verdict [from Mondeley,
J., and a special jury) for 87,000
against the South Eastern Hail-
way Co. of Canada. The ground
of the decision was pure negligence
on the part of the defendants' .s«'r-
vants in not taking instant pre-
cautions when there was warning
of a storm.

The Court of ]{eview (Monile-
ley, Torrance, and Ueaiulry, J.I.]
entered judgment for the phiintitl',
and rejected the motion for a new
trial. 'l(J March IH77, t^. IJ. Que-
bee [Monk, Kainsay, Sanborn, and
Tessier, J.l . I .set aside the vt-rdict
and allowed a new trial, on the
.sole ground of e.\c»'ssive damages.

On 1.") .Iiim' 1H77, the Q. B.
(^Uel)ee (present the hist-imiued
judges and Diuion, C..I.] refused
leave ti) appeal to the Privy Council
on the ground that it was an inter-
locutory judgnu'iit. 10 Dec. 1H77,
the Judicial Committee ie[K)rte(i
as their opinion that the apiiel-
lant ought to have s|)ecial leave
to enter and jirosecute his ap-
peal against the order granting
the new trial, niion depo.siting i,"JOO
as seeurity for costs. The record
of the ease does not contain the
reasons for allowing the a|)|H'al ;
but Doutro, Q.C., who was in the
case, .says [Doutre's Constitution,
p. 311] : It was on the ground

(1) That a judgment setting aside
a verdict is not interlocutory and

(2) If the verdiet of the jury
hail been sustained, the defendant
had a right to appeal, and then ■
fore if the verdict should be sot
aside the plaintiff must have the
same right. In the sequel to th«

I -I

1 i

IMAGE EVALUATION
TEST TARGET (MT-3)

1.0 !!■- i

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22

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11.25

1.8

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Photographic

Sciences

Corporation

23 WEST MAIN STREET

WEBSTER, N.Y. 14580

(716) 872-4503

■5

If Init M

. Ji hJ; 1 i Lambkin v.

r'l ■llli Southeast
j ; || l|fli Railway Co

1 ; .'1 i ! 1 ■ > ; ■ CosSETTE f.

1 • '1 ! 1 ! Dun.

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■ , : 1: ; 1 : f:

1 ; ' M '■ ! ( M ^ ■ ' ' '!■""*■

; [iji i' 1 j ■ ., : i-^ Brown r.
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'111.

11-,, ■ I

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!: : :

' j Ko KuiNE V.
1 ! , Snadden.

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•1 tiiiiL

421.

B.N. A. ACT, f^. 101.— TEST OF VALUE.

c'lisp their Lonlsliiiis [Sir James
Colvile> Sir Biune.s Peacock, Sir
Montngue E. Smith, and Sir
Robert Collier] reversed the deci-
.sion of the Q. B. Quebec.

In CossETTE I'. Din, Dee. 9,
1890, 18 S. C. R. 222, it was held
that the tirst court's award was the
test of appealable amount. Tliere
tlie plaintiff claimed $10,000 against
amereantileagency for slander. The
Snj)erior Court, Montreal, gave
judgment for .S2,000 ; an appeal to
the Q. B. reduced the damages to
8500. Held there was a right
of appeal to tlie Sii[)erior Court.
Sir W. Ritchie, C.J., said:
" The question before us is not
as to the ,S1,5(M), but simply
whether the plaintiff lias a right to
have the judgment obtained by him
in the Supeiior Coint for S2,000
restored. 'I'herefore the (jiiestion
we have to determine is; Did the
Court of Q. B. do right in inter-
fering with the judgment of the
Superior Court, which awarded
82,000. And therefore the riglit of
the plaintiff to hold his judgment
in the Superioi' Court for .S2,0()0
was the (piestion before the Court
of Q. B., and is the matter now
in controversy before us in this
court. ITnder these circiinisUmces
the case is clearly a])pealable." See
also Prannatli Roy Chowdry v.
Ranee Surnomoyee, 7 Dec. 1859,
7 Moo. Ind. App. 553.

Interest on flamages was allow-
ed to be added to the damages, tiuis
raising the appealable value.

Thus in New South Wales in-
terest on damages is given by the
Act 24 Vict. No. 8., therefore ap-
peal allowed. Bank of New Sontii
Wales V. Ow.ston, 18 Feb. 1879,
4 App. Cas. 270; 48 L. J. P.
C. 25. See that case also, that
costs cannot be added in estimating
the appealable value.

In Ko Khine v. Snadden,
an Indian api)eal, Feb. 6, 18G8,
2 L. R. P. C. 50, special leave was
granted on the ground that al-
though the amount involved in this

one cas(( was below the iciinisii,.
amount, there were othi'p ac-
tions, involving the same evidence
and concluded by the same jud"-
nient, which, all added togctlicr
raised the amount far abo\c tlu.
ai)[)ealable value. Sec also Bii'ifio
Gopal Lall Thakoor v. Teliik
Chmider Rai, 7 Moo. Ind. App.
518. But where there arc two
di.stinct causes and two scpanitc
judgments they cannot be eonsnli-
dated for the piu'pose of riiisiiifr
the appealable amount. Moofti
Mohunimud Ubdoollali v, llaiKKj
Mooteehund, 10 Feb. 1H37, 1 Moo.
Ind. App. 363.

In Brown v. McLAiMiiiAX,
Dec. 12, 1870,3 L. R. P. C. IjS;
7 Moo. P. C. N. S. ;506, tlu.
amount was below the iip])caliili||.
value, but leave was given. Sir
J. Colvile .said : " Their Loi'dsLips
are disposed to grant leave to ap-
peal, on the ground that it is ;i
<]uestion on the constructidii of an
Act, and one of general int('ii'>t in
South Australia. T» being niidci-
slood that the appeal is to lie con-
fined to the merits of the dcci.sion,
namely, whether tlu- South Aih-
traliau Fencing Act a|ipiics to
fences erected liy holders of lca>c«
under the Crown for pastoral pur-
poses."

Also where the question is of
gen»'ral Importance to insuraiKr
comi»anies, leave; has been allowed.
Sun Fire Office v. Hart, Feli. 1(1,
1889, 14 App. Cas. 98, i). lUo;
58 L. J. P. C. 69.

In Santacana v. AifiiKvoi,. M;iv
8, 1830, 1 Knapp, 269, an ap
jteal from Gibraltar, Leach, Jl.l!,,
.said: "'J'his Board never Iicind of
an apj)eal l)eing instituted on tlu'
ground that the witnesses had k'eii
discredited. The covirt lielow woif
aware of the character of tbcsc
witnesses ; and Ix'sides the know-
ledge of their character, bud tlif
advantage of seeing their di'-
meanour and behaviour, of wbidi
Ave on written e\idenee have m

IJ.N.A. ACT, s. 101,— JUDGE OF EVIDENCE.

125

V('(llllSllc

tlicr lie-
cvidciiee,

111'' jiitlj,'-
togi'tluT,
ibovc tlic
'so Bii'inci
v. 'I'eliik
lul. Aii|).
' iiri' two
si'iKiriitc
H' fimsoli-

Of I'ilisillir

MoMfti

('. Ikliod

37, 1 Moo.

j,ow,T of juilgiiig. We feel it our
(lutv, therefore, to decide this ease
oi; tiie general principle, that no
jipjicil will lie from the judgment
of ii court below on the; ground
thiit flie coinr discredited the wit-
ness's produced to them by either
uiuty." But in Canepa v. Larios,
Feb" 17, 1834, 2 Knapp, 270,
Lord Wvnford .said the rule in
Santacinia v. Ardevol "should be
soniewliat qualitied, or it would
prevent us from protecting colo-
nists iigiiinst the effect of local
prcjudircs." . . . . "In all
cases ill which the court sees
no cogent reason for .saying that
the court in wlio.se presence the
evidence was given have taken a
wrong view of it, the safest cour,s(!
is to adhere to its determination.
Kilt a case may be so unsatisfactory
as to require further explanation ;
or so improbable as to be manifestly
Minvortliy of credit; or may ex-
liibit circumstances which .should
(.'iinvince any impartial or judicious
mind of its truth. In .such cases
the Court of Ai)peal should not be
concludeil by the judgment of the
couit below, but exercise its power
of sending a case back for further
iii([iiiry, with such directions as it
may think [iroper to give."

This would be the course
followed in the House of Lords.
Or it might Ix' sent back to
take an account. Even 'u a new
|ioint of law was raised in the
.Indii'ial Committee, say depend-
ing on French law anil from
Quebec, their Lordships would mo.st
laotiably not allow the point to be
aigiiod, or, if important, would remit
thu case to Quebec for disposal of
the point. In the House of Lords,
if a point of Scotch or Irish law
was not raised or argued in a case
onai)|i(>al from Ireland or Scotland,
the House would not send the
case back, as their Lordships sit as
Hu English, Scotch, and Irish Ap-
pellate Court, and are supposed to
lie acquainted with these laws."
Cooper c. Cooper, 13 App. Cas. 8H.
Ill a matter of fact, unless there

is some <listiiict point ^ ; hi<'h the Sant.uan.v v.
judgment eoni[)laine(i >; . wrong, -^""kvoi,.
even thoujufli doubts i... y be enter-
tained by , >eir Lordshi|)s of its
correctness, tl e Judicial Committee,
under its .standing custom, will
probably not entertain the appeal.
See post, p. 429.

In BiCHEB V. VoYKU, 13L.C. J. Ricmkh v.
213; 15 L. C. J. 122; in P. C. ^'"'''>"-
May 2, 1874, 5 L. R. P. C. 4U1 ;
30 L. T. 506; 22 W. R. 849, the
J-dicial Committee allowed leave,
to appeal where the action was to
recover a sum of 32,000, one ques-
tion there being the true nature
of the receipt given by the bank,
in fact, whether it was a negotiable,
instrument or not. That ca.se al.so
decided that the notes of a judge
who .simply concurs, and which are
not communicated to both sides,
will not be looked at by their
Lordships of the Privy Council.

In Abbotts r. Macuonald, AnBoiTs v.
24 Oct. 1877, 21 L. C. J. 311, ''^I'^t»o^A!.i..
Johnson, Belanger, and Bain-
viHe, JJ., lield that where the
judgment of the Superior Court
had been confirmed in review
against the defentlant, tb i party
inscribing, the defendant, al-
though precluded by the local
Act from appealing direct to the
Court of Queen's Bench, could,
under the Dominion Act 38 Vict,
c. 11. s. 17, appeal to the Supreme
Court of the Dominion. .SVe
54 & 55 Vict. (Dom.) c. 25. .s. 3,
s.-s. 3, ante, p. 405.

Thecourt below granting or refus-
ing leave to appeal cannot bind the
Privy Council, and therefore where
the cotut below refuses li'ave,
thinking it ha,s no power to grant
leave, the Judicial Committee will
grant leave, if the amount involved
is large or the question is one of
imporUmce. Ong Cheng Neo v.
Yeap Cheah Neo, Jan. 31, 1874,
5 L. R. P. C. 89.

Ill Boston v. LELiivuE, the Boston v.
upiiellaut sought to obtain a decision I'*'''^vbe,

^ l.i ! i

i !

12G B.N.A. ACT, s. 101.— ARGUMENT ON LEAVi:.

Boston v.
Lelievrk.

> li-s

j ! i.'j '

i ill

I \\

I 1

.SlIENTIIN ('.

Smith.

that the Q. B., Quebec, were bound
to entert^iin au appeal in a case of
certiorari from the order made by
the Superior Court, dated 27 June
1862. Cap. 77. H. 23; e. 88. s. 17,
and c. 89. s. (5, C. S. L. C. 1861,
providing for general appeals, ex-
cepted ca.ses of certiorari. Lord
Westbury, Jan. 25, 1870, 3 L.
R. P. C. 157; 18 W. 11. 408
[Sir W. Colvile and Sir Joseph
Napier being also [)resent], saiil :
" Their Lordships are not insensible
to the importance of this ease. At
the same time they feel they would
not act rightly if they were to over-
rule the uncuimous jtidgment of
the court below, upon a question of
this nature, unless they weiepeifect-
ly satisfied that the judges Iiad com-
mitted an error in refusing the ex-
ercise of their appeliat*^ juris(hction.

" The (piestion is governed en-
tirely by the language of the co-
lonial statutes. The Court of Ap-
pesU in Lower Canada is the creation
of statute, and the subjects upon
which appeal lies to that court are
defined with reasonable clearness."

Argument where Special Leave.
— Argument on a case allowed by
special leave because of a special
point of law ought, if possible, to
be confined to the ([uestion of
general importance, and ought not
to delve into the question of fact.
See Cori)oration of St. John v.
Central Vermont Kail, 14 S. C. K.
288; in P. C. 25 July 1889, 14
App. Cas. 590; 59 L. J. P. C. 15 ;
anil post.

Appeal on Conditions.

Shenton v. Smith, Feb. 2, 1894,
[1895] A. C. 229. In this case
the amount was £200, and therefore
under the a[)pealable value, being
from the S. C. Western Australia.
On account of the si)ecial nature of
the question si>ecial leave was
granted ; but as the Judicial Com-
mittee considered it hard on the
individual suitor to Lear the cost-s
of an appeal admitted (;ii siuib
ground, the upi)ellant was put

under the obligation to jiav tlu'
costs in any event. The question
was whether Dr. Smith could 1)0
dismissed by the Governor of AVcs-
teru Australia, whom the apiu'llimt
represented at the trial. l)i'.
Smith took the duty as nieili«il
otticei- of health of another doclur,
Dr. Rogers, [on lea\e of absence,
and was gazetted as such. Latoi'
the Governor declined to make tlio
appointment permanent. lihune
was attached to the respondent al
an inquest, and an order was passed
by the Governor that the respon-
dent .should be informed that his
tenure of office would cease at the
close of the year. All the papers
were sent to the Secretary of State,
who declined to interfere. In 188'J
Ur. Smith presented a petition of
right. After an abortive trial, be-
fore Stone, J., and n jury, inwhieh
Stone, J., thought the respondent
ought to have been nonsuited,
another trial was held before On-
slow, C. J., and a jury. The latter
answered the question, whether the,
repondent was led to believe lie
would hold the office during good
behaviour so long as it existed,in the
affirmative. They went on to find
that the Government had not given
reasonable notice and had no reason-
able cause to dismiss him, and they
assessed the damage at £200. The
appellant moved for a new trial or
to have judgment entered up in
his favour. That motion was
refused, subject to the reservation
jf a question to the full court;
Whether the respondent, though
appointed temporarily, was still
entitled to be treated in accordance
with the procedure laid down in
the Council Office Regulations
with regard to the dismissid of
public servants? It was agreed
that such procedure was not fol-
lowed.

Before the full court, Onslow,
C.J., took a view adverse to the
apijellant and Stone, J., the only
other judge in his favour, so the
judgment stood.

Lord Hobhouse delivered the

! i

B.N.A. ACT, H. 101.— REMEDIKS EXHAUSTED. t27

jiidgim'nt

of tlie Board [there
being also present Lortl Hersehell,
L.C., Ijonl AViitson, Lord Mac-
iHigbteii, and Lord Shand.]

After stating that in the opinion
of their Lordships the respondent
(lid not occnpy so strong a posi-
tion as Dr. Rogers, bnt that they
did not dwell upon that, be-
c'linse they preferred to rest their
judgment on a broader ground,
lie saiil: "It has been argued
at the bar that a eolonial Govern-
nieut stands on a different footing
from the Crown in England, with
respect to obligations towards per-
sons with whom it has dealings.
Tlieir Lordships do not go into the
cases eite<l for proof of that pro-
position, for they are (juite different
from this case, and neither principle
nor authority has been adduced to
show that in the employment and
dismissal of public servants a co-
lonial Government stands on any
diiferent footing than the home
(lovernmeut. It appears to their
Lordships that the proper grounds
of decision in this case have been
expressed by Stone, J., in the full
court. They consider that, unless
ill siiecial cases where it is other-
wise provided, servants of the
Crown hold their office^', during
the pleasure of the Cro\, J ; not by
virtue of any special prerogative of
the Crown, but because such are
tli(,' terms of their engagements, as
is well uiulerstood throughout the
public service. If any public ser-
vant consider that he has been
ilismissed unjustly, his remedy is
not by a lawsuit, but by an ap-
peal of an official or political kind.
Dr. Smith did, in fact, make such
iiu official appeal to the Secretary
of State, and the colonial Govern-
ment recognised his right to do so,
and prolonged his tenure so as to
allow time for the decision of that
appeal, and to save him from injury
if it should go in his favour.
Where there is representative go-
vernment the other estates may, if
they think tit, make themselves the
mouthpiece of that sort of grievance

against the Crown as of any other- Shenton v.
In a Ciown colony, a.s SV'estern Smith.
Australia then was, this appeal to
the Setl'etju'y of State exhausted
the plaintiff's remedies within the
colony."

Another case where the Judicial
Committee put upon the appellant
the obligation, as a condition of al-
lowing leave to appeal, that he should
pay all costs, charges, and expenses
which might be incurred on behalf
of the respondent in defending the
appeal, was Spooner v. Juddow, 14
Feb. 1850, G Moo. P. C. p. 2G4.

In re Sibnarain Ghosk, 8 Feb. In /r.SiiiKAii.MN
1853, 8 Moo. P. C. 27(i, Sir ^""^''•
John Jervis said : If the petitioner
came here for an indulgence, asking
" the rule prescribing the appeal-
able amount to be relaxed, it ought
not to be granted but upon t(;rnis.
The party respondent will have to
come here to support the order of
the S. C. upon a point which you
omitted to argue in the court below ;
you must undertake to indemnify
him from any loss you may put him
to, as well also for compensation,"
[it was a partition suit, and pe-
titioner had offered to compensate
the defendant if the commissioners'
report was varied] "if it is neces-
sary to make any variation of the
order confirming the report of the
commissioners upon that point."
The order confirmed by Her
Majesty, after stating the petitioner
ought to be at liberty to enter and
prosecute his appeal against, &c.,
ran, " upon lodging in the Council
Office," within four months, a
certificate of recognizance to Her
Majesty in a penalty of £1,500,
to be entered into by some proper
person (to be approved of by the
Clerk of the Council) before one of
the Barons of Exchequer, con-
ditioned to stand and abide such
determination whatsoever as may
be come to by the Committee on
this appeal, and to pay such com-
pensation as their Lordships may
think tit to award, and likewise
to pay such costs as may be

l':ii

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J-28

B.N.A. ACT, H. 101.— AI'PKAL ON TEKMS.

OlIOSE.

MoliSON I'.

Cartkii.

Forget r.
OsricJNV.

i 1 .

; f

i ; '"'11

ill;
[pi

: 1 '

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: J'

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ill

fal

/» re SiBNARAiN awn nled in case the appwil be dis-
inisspd.

See also Monirain Koiita v.
KeiTv KolitHiiv, 13 Miiicli 1875,
Wheeler's P. C". Law HI. Sjiecial
leave to appeal was allowed, on con-
dition of j.i)p;'l]ant payin<; respon-
dent eosts in any event. And
INIain and others v. Stark, 15 ISIiiy
1890, Wheeler's P. C. Law, p. 721 ;
15 App. Cas. p. 390 ; r)9 L. J. P. C.
(58.

The Qneen's Order, 17 Nov.
1888, allowed the appeal " npon
eondition thiitthey (the ])etitioners)
nndertwke to pay all the "osts of
the res|)ondents inenrred in the .said
appeal in any event, liofh in tlu;
eolony of Victoria and in En^jjliind,
to he taxeil as between solicitor
and client."

Tn FouGETi'. OsTiCNV, 18 Nov.
1893, the Jndicial Committee
directed that the petitioner for
leave to appeal shonld midertake
" to pay the eosts of f;ueh apjjcal
on both sides in any event, if i
shall a])|tear advisable to the Lords
of the Committee so to order when
the said appeal comes on for
hearing."

(.TOr.DKlN'i v.
D'HOCHELAGA,

5 App. Cas., 371
82, Avas an a])pHcation by the
bank to rescind an onler of the (^. B.
Qnebec, 24 .Inne 1879, giving leave,
nnder art. 1178 of the Code of
Civil Procedure, to the appellant to
api)eal to the Jiulicial Committee
against a writ of capias ad respon-
dendum issued against him, under
arts. 798 and 801. Sir J. Col vile, Sir
B. Peacock, Sir M. E. Smith, and
Sir K. Collier, held it was not com-
petent to the Court of (J. B. Quebec
to grant leave to appeal to Her
Majesty, the writ capias adrespon-
flendum not being a final judgment.
Leave refjised. But see next case.
The following case illustrates re
fu.sal of leave on a question of fact
in a question of the validity of u
writ of capias ; and the granting of
special leave where there is no

Goi.DHINfi V.

La H.vn()uk
D'lIucaEr.AdA.

La Banquk

Feb. V, 1880,

49 L. J. P. C

Mp[)eal of right nnder the I'dije of
Civil Procedure, art. 1178, and
where the question is a difficult
point of law or creates a conllid
between the two codes.

INIoLSON V. Carter was an iip.
peal fiom an order of Q. B., Qudnc,
22 June 1880, 25 L. C. J. G.J
[Dorion, C..T., Ramsay, Tcssicr,
J.T., Cross and Monk, JJ., dis-
senting], which affirmed an order of
Pa])ineau, J., in the Su|». Ct. I(
appears that on 17 April 1877,
Carter obtained a judgment against
Molson, by which tlie latter was
ordered to pay costs, and about
332,000. On 2 June 1877, Carl.T
prayed the Sup. Ct. for a writ of
capias ad rcspondendnm against
Molson. Mol.^ion was arrested, and
on bail released from custody. Mol-
son commenced proceedings undci'
articles 819, 823, of the Code of
Procedure to set aside the writ of
capias, and the above judgment
was given. Molson then petitioned
the judicial Committee to grant
special leave to appeal. On 27 Nov.
1880, the Judicial Committee. Sir
J. Colvile, Sir B. Peacock, Sir
M. E. Smith, and Sir II. Collier,
refused leave to appeal. Sii' 11.
Colvile, delivering judgment, said
(25 L. C. J. p. 99) : "It is
obvious their Lordshijis wonid
not, according to their usual
practice, nor could they with [ii'o-
priety, grant special Icjive to \\\)\v\\\
upon a question ul this kind, un-
less they saw clearly that there bad
been some miscarriage in [)oint of
law or very gross miscarriage in
the two cnnrl;;, whose concurrent
judgments are nnder appeid, on
the matters of fact. Now, with-
out going into the complicated
proceedings that have been com-
mented on in this case, it is suUi-
cient to state that the judguieuts
of the court below may be taken
to have proceeded almost exclu-
sively uj)on the act of the petitioner,
in altering the deposit account of a
certain sum of money in the Me-
chanics' Bank, and the facts whieli

B.^.A. ACT, s. 101— MATTERS OF FACT.

429

1,m1 to tliiit wciv simply tlii'sc : tlio dc-
teiKiiiut borrowed t'roui the plaintiff
a Miui of about 332,000 ostensibly
oil the security of certuiu property.
Hi- iMiitl tbat sum into this bank
in his own name, with a sort of
special mark. As found in July
1874, he altered the heading of
that deposit account so as to nmke
it ti|)|ii>ar that the money was hi.;
wile's. The bank beeimo insol-
vent a month or two later, but just
when it was on the eve of insol-
vency he drew out the 832,000
npoii a receipt .signed by him for
iind as agent of his wife ; and it
is apou that transaction that the
ennits below have principally pro-
ceeded." . . " There was abun-
dant evidence from which Papi-
neau, .)., and the majority of the
indges of the Appellate Court
nii'dit eoine to the conclusion that
the transiction was really one of
tile nature described by Monk, J.,
and tliat it was a case of actual
sceivtion or the making away of
limpei'ty of the (hditor within the
nieiiningcif tlie Code of Procedure."
Molsoii r. Carter e me again
tu the Privy Council. On H July
1880, Torrance, J., Sup. Ct., de-
elmed the cupias take out against
Molsou good, and ordered him to
pay the judgment debt ,";f 17 July
1877, with costs and intere.st. On
the 3rd Sept. 18H0, Carter filed a
petition in the Sup. Ct. reciting
the above judgment, and alleging
it was wholly unsatisfied, and al-
leging that Molson had neglected to
lilt! a statement within 30 days.
C.C.P.nrt.766; c. 87.C. S.L.'C.
s. 12, sub-sec. 2. On 17 Sept. 1880,
Torrance, J., ordered that Molson
lie iinprismied in the common gaol
of the di.striet for the space of one
year. From this judgment MoLson
iip|K'aled to the Q. B. Quebec. On
C March 1882, 26 L. C. J. 15!)
[Dorion, C.J., Monk and Tessier,
JJ., Eauisay and Baby, J J. dissent-
ing], reversing Sup. Ct., held that
inusiuueh as the Code of Civil Pro-
oediire failed to attach any penalty
whatever for not filling up the

statement required by art. 7G6, the Moi.son v.
l)enalty provided by" art. 2,27i of Cabtkh.
the Civil Code [a year's imprison-
ment], and by e. 87. of C. S. of
L C. .s. 12, sub-s(!e. 2, could not
be enforct'd.

In the Privy Council, 10 March
1883, 8 App. "Cas. 530, on it being
urged no ap[)eal was given to the
Privy Coiincil by art. 1,178 of the
Code for Lower C'anada [see Gold-
ri.<g r. La BaiKpie d'Hochelaga,
Feb. 7. 1880, 5 App. Cas. 37 1 ;
•in L. J. p. C. 82, which -'•^.•,d,.d
that it was not eom[)etent for the
Q. B., Quebec, to grant leave to
appeal to Her Majesty in Coun-
cil], their Lordships — Lord Black-
burn, Sir Barnes Peacock, Sir R.
Couch, and Sir A. Hobhouse — while
of opinion no appeal lay of right un-
der art. 1,178 of the Code of Civil
Procedure, said their Lord.ships
were prepared, as the ipiestion
was of impoitance, to advise Her
Majesty to grant si)ecial leave of
appeal, the appellant undertaking
to present a petition and forthwith
depositing in the Privy Council
Oflii;e the sum of £250 as security
for costs in case the petition was dis-
missed, the argument being allowed
to proceeil provisionally. On 17
Jul) 1883, a Queen's Order was
packed giving the leave; and on
18 April 1883, Lord Blackburn,
delir(>ring the judgment aflarming
the decision of the court below,
.said (p. 535) : —

"The question, which their Lord-
ships have foinitl to be one of con-
siderable difficulty, depends on the
true construction of the two codes
of Lower Canada, the Civil Code,
more particularly art. 2,274 and
arts. 2,(513 and 2^614, and the Code
of Civil Procedure, more parti-
cuhirly art. 76G and those follow-
ing it, and art. I,3ti0. There were
careful and elaborate provisions for
framing the two codes in question;
but, notwithstanding all the pre-
cautions taken, there may be, and
in fact in the present ca.se there
are, doubts as to the meaning of
the language employed. And the

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1-30

B.N'.A. ACT, 8. 101.— CODES CLASHING.

1 i

Moi,soN r.
Cabteh.

■ ' " M

111

MCSSOOillK

Bank v.
Raynoh.

:!.|t1

■SlBNARIAK
GlIOSF. !'. Hui,-

LoniiUB Doss.

Wilson v.
Callendrr.i

l|;i' 'I

Civil Code of Lower Ciinndn, art.
12, is : ' That when a law is (loui)t-
fiil or auibiguons it is to be inter-
preted so as to fnlfil tbe intention
of the legislature, and to obtain
the object for which it was passed.'
It is, therefore, material to enquire
how and why the two codes were
enacted, so as to ascertain what was
the intention of the legislature and
what the object for which they
were enacted." Carter r. Molson
came a third time on another point
to the P. C, July 1, 1885, 10 App.
Cas. GG4.

Misstatements or concealments of
facts, and objections thereto.
In MussooRiE Bank v. Eayxor,
an appeal from India, March
21, 1882, 7 App. Cas. 321 ; 51
L. J. P. C. 72 ; 46 L. T. 033,
the petition for special leave con-
tained misstatements of fact affect-
ing the third ground relied on l)y
the petitioner. Sir Arthur Hob-
house, delivering judgment, said : —
" Their Lordships desire it to be
distinctly understood that an Order
in Council granting leave to appeal
is liable at any time to be rescinded
with co.sts, if it appear that the peti-
tion upon which the order was grant-
ed contains any misstatement, or any
concealment of facts which ought
to be disclosed." Then his Lord-
ship con.sidered (1) that there was
no intention to mislead; and (2)
he said the quesvion then was, fol-
lowing Lord Kingsdown in Mohun
Lali ftpookul V. Berbee Doss, 1861,
8 Moo. Ind. App. p. 195, whether
the order in questioii was one which
they might not hav^' been induced
to make if the facts aad been fully
and truly stated," and he came to
the opinion that no oifferent con-
clusion would or coula have been
arrived at if the strictebt accuracy
had been observed. But in re-
versing the court below thi ir Lord-
ships, be(«iuse of the misstivtement,
gave no costs of the appeal, fol-
lowing Tlam Sabuk Bose v. Mon-
mohini Possee, 1874, 2 L. B.. Ind.
App. 71.

In the last case objection Avas
only taken during the argunipnt
to the misstatement. Sir M. E,
Smith .said : " In their Lonlslijps'
opinion an objection of this jjind
ought to be taken by the rospon-
dents as early as the ninttor is
brought to their notice, for tlio
plain reason that if the lea\(' to
appeal is on that ground rescindci]
no further costs are incurred, mi(l
it is wrong to leave the objoction
until the hearing of the appeal,
when the record has been sent
from India, and when all the costs
attending the hearing have been iu.
curred." There their Lordships
punished both parties, for Sir M. E,
Smith .said • " If the objection had
been made by a preliminary motion
their Lordships have little doulit
that the motion would have Iwn
successful," but as it had not, and
the arguments had been heard for
the appellant, their Lordships wont
on with the appeal, rcverseil it, bnt
gave the a[)pellant no costs of the
appeal.

SiBNARiAx Ghose v. Hui.i.on-
HUB Doss, 30 Nov. 1854, 9 Moo.
P. C. Cas. 354.

There the petition had stated
that certain exceptions taken iu
the court below to the retiu'u made
by the Partition Commissioners
had been overruled, as, of course,
in consequence of the absence of
the petititioner's counsel, whereas
the fact was the counsel of hotli
sides were present, and the judges
in India certified the petitioner's
counsel was present and declined
to argue the exceptions. Turner,
L. J., in dismissing the appeal witli
costs, said : " We consider it a
matter of the utmost importance
that parties w!io come here for an
indulgence upon an ex parte appli-
cation should take care and speak
the truth."

Wilson v. Callendeb, 20 July
1855, 9 Moo. P. C. 100, wn.s
a similar case. There the pe-
titioner stated that the accounts

n.X.A. ACT, s. 101— MISSTATEMENTS.

131

and sof'iiritios in qupstion were of
tlie viiliie of £.'500, tho sum limited
livthe royal iustru'-tions rpfrnlntiiig
iijipeiiis from tiie Island of Barbii-
(loos. On this allp<^tion spocial
loavclind Itnon granted. But wIkmi
til appeal came on it appeared that
tlip scouritie.s, &c,, had been proved
lit tiio trial to be not of the value
(if a single shilling. Case stopped
anil (lisuiissed with eo.sts.

In Bl^LKELEY V. ScuTZ, Feb.
28, 1870, 3 L. R. P C. 196, it
appeared that special leave to
appeal had been gi\en on a mis-
statement of fact. The petitions,
slated the petitioner, had inadvert-
ently omitted to apply to the S. C
for leave to appeal, whereas it ap-
jN-ared tiiat he had applied and had
obtained leave, but tho ai)peal had
not lieen duly prosecuted. Their
Lonlsiiips refused to hear the
appeal.

On the other hand, the respon-
dent ought to petition the Privy
Council as .soon as he has know-
ledge that a petition for special
leave has been improperly granted.
He ought not to wait until the
hearing. <SVe above and ante
p. 121, Sauvageau v. Gauthier,
5 May 1871, 5 L. R. P. C. 491.

Also the leave will be rescinded
where shown that the rules of
the court below as to notice of
appeal have not been complied
with. Tho Brenhilda v. British
India Navigation Co., March 15,
1881 ; AVheeler's P. C. Law, 135 ;
8 L, R. Ind. App. 159.

In Ly.ux v. Jardine, from
S. C. Ilong Kong, July 8, 1870,
3 L. R. P. C. 318 ; 39 L. J. P.
C. 43; 22 L. T. 882, the special
leave to appeal having been ob-
tained e.v parte on the suppression
and misrepresentation in the pe-
tition, the appeal was dismissed
with costs, (1) on the ground of
not giving full information; and (2)
tiieir Lordships, as an Appellate
Court, declining to hear an appeal
barely on the groimd th.it certain

facts, which, if they had been sub- Lyaij, i-. Jau-
mitted to the court Ik'Iow, would ""'*'•
have led to a different order being
made. Lord Cairns said: "No-
thing can be more important
than that it shouhl be understood
that those who come l)efore this
Committee upon an ev parte a])pli-
cation for leave to appeal should
consider it their absolute duty to
state, in the fullest and frankest
way, every circum.stance connected Bui.kei.fv e.
with the history of the case which Scutz.
possd)ly can have any bearing on
the leave for which they a.sk."

CaMBKHXON v. EgROIGNAKD, CamBEHNON I'.

20 Feb. 1830, 1 Kuapp, 251, do- EcmoioNAiM..

cided that all questions relative to

the value, or sufficiency of securities

tendered for the due prosecution

of the appeal are to be decided

by the court below, and if that

court declares they are insufficient,

the Judicial Committee — on an

appeal from the Mauritius — decided

that they had no jurisdiction. In this

case a subsequent petition was filed

to be allowed to appeal on giving

such security as the Council shoidd

think fit, but after hearing coun.sel

their Lordships dismissed it with

co.sts.

Allowed for Special Beasons.

An appeal has been allowed from
a decision of a Guernsey court con-
firming a rate for the relief of the
poor, though below the appealable
amount. Re Tupper, Jan. 1st,
1834, 2 Knapp, 201.

In Mayor or Montreai, and Mayor op
Sprinole v. Brown, 10 L. C. gp^'J^J';''"^''"
J. 1; in P. C. Nov. 11, 187G, 1,.''3bown.
2 App. Cas. 168; 35 L. T.
870, the Privy Council decided
that the Q. B. Quel)ec could
hear an appeal from the Superior
Court, notwithstanding the fact
that the Province of Canada Act
27 & 28 Vict. c. 60. said that
the decision of the court, on
report of certain commissioners
in expropriation should be final.
The Act 27 & 28 Vict. c. 60.,
nft(>r stating that in consequence of

I.I

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MAvon OK

MONTRKAI. ANI>
Sl"RIN(il.K I'.
UllOWN.

1 H ; if

'iili

1 .1 1 I ■

AlJ.AN V,

Pratt.

i^iil-:

432

IVX.A. ACT, H. 101— MEASTT-RE OF VALT'K.

the rapid cxtciisioii ol' llic <'ity <»t'
Moiitrotil if becnino nccossmy to
lay out streets and iimkc otliiT
arranpcnionts for the piiliHc <'(tn-
vcnit'iu'o, <:;()('s on to '^Wc vai'ions
ways of inaking the improvcincnts,
and directs 111, t tliey ai'e to be paid
out of the funds of tlie city. If the
city cannot afj;reo with the owner
as to price, application is to he
niaile lo the Superior Court, or n
jud^e of that court, in chamber, to
.select three persons to act as coni-
nn'ssioners to fix the pi'ice. These
coinnii.'.siouers coidd examine wit-
nesses, call for deeds, &c. Then
in sul)-sec. !), if otm or more of -ho
conniiissionei's shall fail in his
duties and .shall not fulfil them in a
faithful, diligent, and impartial
manner, it shall he lawful to ap[»ly
to the Supei'ior Court to stay pro-
ceedinjis, Sn'. Then it goes on,
that as soon ns the conunissioners
shall ha\(' conii)leled their valu-
ation, the corporation are to give
notice for any parties to come in
and ol)j<'ct to the valuation. Then
the corporation were to submit to
the court their report, containing
the a|)praisenient of the commis-
sioners, for the purpost> of being
confirmed.

Allan i'. Pratt, in Sup. Ct.,
Tori'ance, J., Dec. ,S0, 1884, main-
taining I'ratt's action for damages
for iH'rsonal injtu'ies, in which he
was awarded .SI, 100 against Allan,
in whose employ he was. Pratt
claimed 85,000 damages. Allan
appealed. Dorion, C..T., Tessier
Cross, and Babv, JJ., 18 March
1887, 3 Mon. Q. B. 7, held they
•would not modify the amount
measured by the discretion of a
competent tribunal. Cross, T., gave
these facts. Two squads of men
were employed in discharging the
steamer " Canadian," of the Allan
Line. The squad Pratt was in had
been dismis.sed for lunch, the other
was removing a heavy iron girder
mounted on a low truck. The
girder was long and about 1^ tons,
and it was ditlicult to move it

owing to the soft glii:i:i I. 'I'l,,,
foreman of this sfpiad callnl („|.
\ohniteers from the dispcisjni'
gang; the respondent answcmf,
and jdaced himself to tiiilnnec
the girder. The truck stnick
the rails of the G. T. Rnilwav
and the gii'dcr rolled ou I'luit
|)erman(!nlly ciippliug him. Tlii'
Q. B. gave leave to appeal -Ji)
March 1887,;} Mon. Q H. :\2-2' in
1». C. .Tnlv 2(i, 188S, i;{ App. ('„.
780; 57L.J. p. C. 104;.5i) L. T
«74; 15 Q. L. II. 18. Eiul S.l-
borne deli\ered judgment, iit wliicli
were also present Lords Wiitsoa
and Tlobhouse and Sir Hariic-i
J'eaeock : —

" Their Lordships ai'e of opinldii
that the appeal is inconipetcnt,
The proper mea.sure of vnliic lor
determining the question of the
right of appeal is, in their jndj;-
ment, the amount which h.is lucn
recovered by th«> plaintiff in tlio
action and against which the !i|iiii;il
could be brought. Their bonl-
ships, even if they were not IkmiikI
by it, would agree in principle willi
the ride laid down in tin' jiidf;-
nu'iit of this tribunal deli\ero(l hv
Lord Chelmsford in the case of Jlnc-
farlane r. Leclairi' CIS ]\Ioo. I*. (',
181 ; 10 W. R. 32l'; 8 Jur. \. .S,
2()7, ante, p. 420), that is, that tlir
judgment is to be looked at as it
affects the interests of the party who
is prejtidiced by it, and who seeks
to relieve himself from it by a[)i)oal,
If there is to be a limit of value at
all, that seems e\idently the riglit
principle on which to measure it.
The person against whom the
judgment is passed has either lost
what he demanded as plaintiff or
has been adjudged to pay some-
thing or to do something as de-
fendant. It may be that the value
to the defendant of an adverse
judgment is greater than the value
laid by the plaintiff in his claim.
If so, which was thc! case in
Macfarlane v. Ledaire, it would Ih'
very unjust that he should l.e
bound, not by the value to hiniself.
but by the value originally assigned

B.N. A. ACT, 8. 101.— VALUE OF APPEAL.

433

to the suliject-nmtter of the action
by his oniioncnt. The prcsinit is
the c'ljiiviTso case. A man makes
a chiini for miu-h larger dainaf^es
tiiaii iu' is likely to recover. The
iiijiirv ti) tiie defendant, if he is
wic>iij;ly adjud;;ed to [)ay damages,
is nifiisui'cil liy the amount of dam-
af;<'s wliieh he is adjudged to j)ay.
Tiiat is not iu the least eidianeed
to him by the fact that some greater
811I1I laid been claimed on the other
side.

" Therefore in principle their
Lordships think the ca.se is governed
by Maelailane r. Leelaire upon the
q lestion of value, and they do not
think it is at all affected by the cir-
eiiiiistaiice that the court below did
not give effect to that objection,
but gave leave to appeal. It has
been decided in former cases that
leave so gi\en does not make the
thing right, if it ought not to have
been done.

"Then it is submitted by the
learned eoniisel that their Lordships
onght to give an opportunity for
an aii[)lieation to be made for
speeial leave to appeal on the
<;ronnd that not only questions of
tiiet, bat also, as bearing on those
facts, questions of law, and par-
tiuuiarly a (piestion of law which
may be important, upon article
Klot " [master's liability for fault of
fellow servant] " of the Civil Code,
are involved in the case. Of course
their Lordships wdl not at present
go into the merits of the case at all,
and they will assume that there
may be such a question and that
It may be important ; but the
present question is, whether, this
"Ppeal being incompetent, they
oiijiht to give, under the circum-
stances of the case, an opportunity
of asking for special leave to ap-
peal. No doubt there may be
cases in which the importance of
the general question of law in-
volved may induce their Lordships
'0 give leave to appeal, though the
value of the matter in dispute is
not suflicient ; but their Lordships
must be governed in the exercise
S 2340.

of that di.screfion by a consider- Ar.r.Aii t.
ation of all the circumstances of P***"'
each particular case. In this case
they .see from the manner in which
it comes before them that tiiis
general (piestion of law, if allowed
to be argued on appeal, would be
argued at the expense, if he did
appear and go to any expense, of
a man evidently too poor to under-
take it. And, .secondly, they see
that thi^re would bo no probability
whatever, if they permitted such
an appeal, of their Lordships having
the assistance which they must
necessarily desire, whenever an im-
portant question as to ihe con-
struction of an article of the Civil
Code, having so large a bearing as
this is suggested to have, may re-
quire to l)e considered and de-
termined by them. If in any
future case a similar question .should
arise, and should be competently
brought before their Lordships, no
doubt it will be decided upon its
merits and not held to be linally
concluded by the judgment given
iu this particular action. Their
Lordships do not think it would be
at all a Siitisfaetory thing to allow
an appeal not otherwise competent
for the sake of raising in those
circimistances and in that manner
a question of the importance which
this question is said to have.
Therefore the appeal will be dis-
missed, but, as nobody has ap-
peared to ojjpose it, there will lie
no costs. [Pratt did not appear].

In BoswELL V. KiLBOBN in P. C. nosWEI.L V,
1 Feb. 185!), 12 Moo. P. C. 4G7, Kilboun.
an action had been brought against
Boswell for £600 currency for au
alleged breach of contract. The
Sup. Ct. Quebec dismissed the
action, but the Q. B. Quebec re-
versed that judgment and awarded
the sum claimed. Boswell asked for
leave to appeal, but the Q. B. Que-
bec refused it, the £600 currency
being below the appealable amount,
£500. The Judicial Committee
granted leave to appeal because, by
the law of Canada (22 Vict. c. 85 .),

£ E

'\\ ,,x

431 B.I^.A. ACT, s. 101.— AMOUNT DEMANDED.

HoSWRI.I. V.
KlI.UUllN.

I ii

!i:

I ,

■M

Joyce v. Hart.

D'OnLiAr V.

D'OULIAC.

mmWi- ,;!

n !'!

interest, nm with tlio, jiul;;m('iit,
which wouM liiiiifi llicsultjfi'l iimt-
ter within the iippctihilih' niiioiiiit ;
mill, M'ccdiilly, l)i'caiiw iiiipor-
tmit (incstioiiM of iiu'rcniililu law
appwii'C'd to he, iiivolxi'd, and nn-
otlit'P action WHS ul)out to Ik- raised
on the sunu! (picstion. Hut their
Lordships iri'iintcd tlic application
on the terms tliat £100 was iodjji'd
in the I'rivy ("onncil as sccnrity
for costH. Sec Qiit'cn's Order,
2 Felt. 1H")!>. Tht; result was,
5 March lS(i2, that a new triid
wa.s ordere<l to take place in t'aii-
achi, the respondent to pay the
costs of the appeal, the costs of
the rules in the eoin'ts helow to
ubide the event of the new trial.
Ste cibnve, arts. 1112 and 1178 of
tiie Code of Civil Procedure ; the
R. S. C. (IHHG) c. 135. s. 21) ; C. S.
L. C. (IHGl) e. 77. s. iVJ.

In Joyce r. II.aut, an ap-
peal from Q. B. Quebec, January
1877, the S. C. (1 S. C. R. 32l")
held in a claim for .£'500 daniaj^es
for altering the gable of a house,
where the jury oidy gave SlOO
damages, that the appealable sinu
was the amount sued for and not
tjie amount of the judgment.
This was followed by Dorlon, C.J.,
and the majority of the court in
Grand Trunk Railway v. Godbout,
8 Sept. 1877, 3 Q. L. R. 316, in
allowing an appt^al to the Privy
Council, where the action was for
810,000 and the jndgment given
for §2,000. His Lordship said:
" This court has already decided
that the right of appeal from the
Circuit Court is to be determined
by the amount demanded and not
by the amount of the judgment.
Art. 1142 says, ' An appeal lies to
the court of Q. B. from any
judgment rendered by the Circuit
Court in the following cases : —
(1) When the sum or value of the
thing demanded amounts or ex-
ceeds 8100, Ac.'; while art. 1178
merely says that an appeal lies to
Her Majesty * (3) In all other cases
wherein the matter in dispute ex-

ceeds the sum or value of L',"ii)o,'
Aeeoi'ding to the French iniis-
|)rudence, it is always the aiiiiiiint
denuind.'il, and not the aiiininit nl'
tile judgment appealed from, wliiih
(h'termines tlu^ right of iippcul.
S'l'ey, ('iid(« de Proe, Anniile, art.
•153, s. 1, No. (i, cites a jr|-,,j,t
many decisions in that sense.
'J'liis nde was adopted by 12 Vicf.
c. 38. s. 82, reproduced in s. 2,") of
c. 77. C.S. L.C. (18151), whiciisjiys
that 'whenever the jurisdictidii of
tlu! court, or t/ir riijht to tii)j)i(tl
from (tin/ ju hjnicnt of idii/ coini,
is dependent upon the ainount in
dispute, such ainoinit shall lie under-
stood to be that demanded uiiil
not that recovered, if tliey aiv
(lifferer,L.' This section of the
statute has not been re])eale(l hy
the code, either expressly or by
iinplieation, and is therel'oie still
in force. It is contended that it
merely refers to appeals to the
Superior Court, but the terms aic
so general . . that they do net
admit of such a restriction, espe-
cially when the rule hud down is
according to the rules of French
proceilure which prevails hen'."
See ante, 51 & 55 Vict, (l)oni.)
c. 25. sec. 3, stib-sec. ■!.

Special Leave, where Court of
Justice silent ; Divorce.

D'OnLi.\c V. D'Oui.iAC, i) May
181 1, 4 Moo. P. C. 371, from the
Island of Mauritius. This was an
ajipeal from the Cour D'Appel ni-
finning; a decree of divorce of the
Coiu't of First Instance dissdlviii^
the marriage between the iippelimit
and respondent for the I'ormei's
adultery and cruelty. The respon-
dent, the wife, lodged a petition
that there was no right of appeal
under the Charter of Justice of
13 April 1831 . [The reports set oit
the material parts of the charter.]

Lord Brougham, dealing with the
wife's petition, said [there bein;,'
also present Wigram, V.C., I^r.
Lushington, and Pemberton Leigh];
"The words of the charter are •■■

IJ.N.A. ACT, s. 101.— LEGITIMACY INVOLVED. 43')

'WliiTc flif .lontt'iioe .slmll iiivolvn
iliivcllv or indirt'clly any claim,
(Iciiiaiiil, i>r (iiicstioii to, or rv-
spccliiif.', proiicrty or any civil rif lit
ninnMiiliiif; to, or of, tlu" value of
i,'l,(H)il sicrlinf^.' Snrcly tlii' valid-
ilvdt'tlii' iiiarriaj^i', lillc to (lower, oi-
ii(|iiistion of Icffilinuu-y, are all civil
rii'litH. And went thero no otlief
rcnicilv it would IxMiuite inon.strouH
til sav, thill you niii.;lit apjjeal for
£1,(HH), and not for a case where
ii';.'iliiimcy in involved. But the
cliai'tii', we think, has omitted cases
of (livorce, and the ('our l)'A|)|)fl
\vas,tlu'rer(>re,wi'on>i;in<;rantin;!;tlie
Hlipcai. TiuTe should have been a
,s|it'cial a|i|iii('ation hero for leave to
iilipcal, under the <:;eneral powers
ivsirvcd by lliu charter to llu^
Cniwn, which may, if it think lit,
i;niiit leave to appeal. Their Lord-
sliilis will exercise their discretion
ill so advising Her Majesty if a
proper case is hroufiht before them,
but this pctitioM must be granted,
and tlie .ipjn i! granted by the
I'oiu' D'Appel dismissed."

Una sul)se(pient date, 13 June,
till' a[ip('l!iiut presented a petition
for special leave to appeal, whicli
WHS allowed, but on terms of his
loi|i;iii<; hi.s ca.se on or before the
:'"th I luic and paying the costs of
the (lay, the appeal to stand dis-
missed if the case was not lodged
wiiliiu the time limited without
fiirtlRT application to the court.
It iipi)earod that the decree of the
Cour D'Appel had been pronounced
on 16 Sept. 1811, and the appellant
liail delayed in his appeal. Even-
tually the appeal became dismissed.
So also in an appeal from the
Island of Mauritius, Shire v. Shire
[present, the Lord President, Lord
l^rongham, Dr. Lushington, and
Pimbei'tou Leigh], 12 Feb. 1815,
5 Moo. P. C. 81. The (piestion
«rose in an appeal by the husband
trom a judgment of the Court of
Appeal for the Island of Mauritius,
wlmh granted the wife a decree of
ri'stitution of conjugal rights with
alimony. When the appeal was

about to be Iienrd, tlie objection Simub e. Sumn.
was made thai I he ("hiirterof justice
of the island did not provide lor
appeals in matrimonial cases. Loid
ISrougham said: " Every marriage
involves the liabilities insisted on
by the appellant, the status of the
issue of the marriage; and thai is
a right which may be said to ' ,!
beyond pecuniaiy value. Tln^
point was very cai'efullv considered
in D'Orliae i\ D'Orliac, 0 Mav
1811, 1 Moo. P. C. a71, anil
though there was no (diarler
right of appeal in matrimonial
causes, we reconuuended the ('rown
to grant leave to ajipeal, on a
special application for that pur-
pose. . . . Their LonNhiiis will re-
commend the allowance ,if nil
api)eal, \\w case to stand o^ r for
the ai)i)ellant to present u petition
for such purpose."

Leave where Ch' len art)
concernea.
In Ca.mili.i:ui v. Flkim, "lO.'ine rAMii.i.Eiii v.
1815, 5 Moo. P. C. H;1, special Fleui'.
leave to appeal was allowed from a
decision of the Court of St lond
Instance of Malta, from which
court, by order in council f)f
18 Dee. 1831, an appeal is allowed
where the matter of issue involves
any civil right amounting to the
value of £1,000. "In any judg-
ment, decree, order, or sentence
for or in respect of any sum or
matter at issue, above the amount
or value of £1,000 sterling, or in
case such judgment, decree, order,
or sentence shall involve, directly
or indirectly, any claim, dcman(i,
or question to or respecting pro-
perty, or any civil rights amount-
iug to or of the value of £1,000
sterling." The Court of Second
Instance had affirmed the decision
of the Court of First Instauce,
ordering the petitioner, the mother
of two children by her iiist mar-
riage, to deliver them up to the
custody of their giandniother. It
appeared that the children's father
and the mother, the petitioner, had
been Boman Catholics, and that

E E

I! 11 i

436 B.N.A. ACT, s. 101.— STAYING EXECUTION.

! M ■ f ^ 1 •'

Camii.leri v.

I'LKUI,

III re Victoria
Ski.n'nkb.

I ill!

ClIUTRAPUT
SlNT.ll DdlllKiA
i'. DwAliKANATII

Stack v.
GiiU'ir'n.

iJiiUi

ill

the niohtor, after the father's
death, hail beeoiue a Protest aiit
aud had married a Koniau Catholie
priest who had joined the com-
ui union of the Protestant Chureh.

Pending the hearing of an Appeal,
the Judicial Committee may
make an interim order.
//* re Victoria Skinnek, Dee. 5,
1870, 3 L. R. P. C. 451 [present,
Sir R. Vliilliniore, James, and
Mellijh, L.JJ.], the Judieial Com-
mittee, lijiving jfiven spieial leave
to api)eal, gave also liberty, i)endiiig
the luaring, for the mother of an
iul'ant, the eustoily of whieh was
the question iti issue, to apply to
the llijuh Court to have aeecss at
suitable times to her daugliter. In
fa;.'t, the Board repeatedly make in-
terim orders of revivor, &{.'. ; and
see Maharani Iiidar Kunwar r.
Maharani .laipal Kumvar, poxf,
p. 426, L. 11. 15, Iiul. App. Cas.
127.

In CnuTK.\puT Singh Doorga
V. DwAitKAXATii GiiosE, July 28,
1874, 21 L. R. Ind. App. 170:
I. L. II. 22 Villa. 1, a stay of exe-
cution liad been refu.sed by the
High Court, Hengid, the two judges
tlitt'ering in opinion. The Board of
the JudieiaK^onmiittee [Lord Wat-
ton, Lord Mai'uaghteu, Lord Mor-
ris, and Sir R. Coueh] held that
OS the two judges in the High
Court had differed in opinion, the
discretion d' (he Court under see.
GU8, sub-see. (c.) of tlie C. of C. P.
(Act xiv. of 1882) had not been ex-
ercised, and granted a st^iy of execu-
tion. And it seems their Lordships
were also of opinion that in such a
case there need not be an appli-
cation for special huive to appeal
from the order complained of as
well as for stay of execution ; that
is, tliut tf there is a right of appeal,
or leave to appeal, the petition
need only ask for stay of execu-
tion. The facts were these : The
action was for a certjiia chur of
laud. The whole of the land was
awarded to the plaintiff. On 5 July

1892 the High Court allowed m
ai)i)eal under sec. G03, C. of C P.
An order was then made in the
Court of First Instance for exoeu-
tion, whereon the defendant up-
plied to the High Court under
sec. G()8, C. of C. P. for an onier
staying execution on the grouud
that the land might detei ioratc,
landmarks might be removed, ami
mesne profits be dithcuh. to get
back. This was refused, 27 Apiil
1894, the judges differing, lleuee
the application. This latter c:ise
ai)pears rather to alter the pnietice.
i>ec Wheeler's 1'. C. Law, p. 41(i.

Where property is traiisfcPRd to
one claimant pending tiie heiuing
of the appeal to the Judicial Com-
mittee, and the property ni ly lie
wasted or become dilap. dated, and
si'curity has not been taken, tlie
Jiu''cial Committee will order the
court b(dow to take propir sci'ii-
I'ity. In re Rajah Vassuivddy
Lutchmeputty Naidoo, July o,
L'-o2, 5 Moo. Ind. App. Cas.'.'JOl).

In Stage v. Griffith, Feb. (<,
18()9, G Moo. P. C. N. S. 18, fmm
S. C. St. Helena, the judge di-
rected the jury in a case of alleged
libel tliat they had to lind wlidhir
a certain letter was a privileged
communication. On the prtiliun
for special have, the iipjieidaMi'
value being under £oOi>, Lonl
Cairns said [there being also [hv-
sent Sir James Colvile, ISir E.
Vaiighan Williams, and 8ir 1{. T.
Kiiidersley] : " A ipr ^tioii of con-
siderable importance arises on this
application, namely, whethera litter
written by the petitioner to the
Colonial Secretary was a privilegid
document. That point seems tu
have been utterly overlooked liy the
judge, who left the whole ea^^e Vj
the jury. Their Lordsliii;;: are ol'
opinion that leave to appeal oiiglil
to be granted that this qiiesliou
may bepropiTly deternuned. Leave
will, hosvever, be granted upon
special ti'rm.s, namely, that the pe-
titioner give the usual security tor
the respondent's costs of appeal,

B.X.A. ACT, s. 101.— PROTECTING SUB.J.-MATTER. 437

nnd also deposit with the registrar
the amount of the (Inmiitjes awarded ;
the pliiintilT (ri'spoiideiit) to enter
into an im{lei't4il<in<j to suspend tiie
cxcciition (if the jiidjiinent.'"

Src also tlie hbci ense of
Jciiniire v. Delniege. Dee. 19, IHiXt,
[18,)1] App. Cms. 7.'i ; (iO L. J. P.
(\ II J Whceler'.s P. C. Law,
7S3.

In MiissuM.AT Jariutool 13i-

TOOL V. MrSSUMAT IToSEINEK Ee-

CLM, 1!) -Tune 18G5, 10 Moo. Ind.
App. p. 202, a case where estates had
liioii transfiTrcd without security,
TumtT, L.J., deliverin/r judgment
[at which were also present Kniglit
linice,L..I.,and Sir Jolin T Cole-
ii(lo;e] : " 'I heir L{(rdsiii[)S have
fih iiome dillicuUy in dealing with
tiiis case, wliieh in the circuin-
staiKTS is new. Put, on examining
the ngiiiiitions and considering the
nature of the case, tiiey are of
npinion that an order may be
made upon this a])phcation. At
tlip same time they think the
proper order to be made should be
one wliicii should lea\ e it as far as
possihle in the discretion of the
Sadder Dewnnny Adawlut as to
wiiat ])roeei'dings or what ste|)s
siioiild lie taken,- and tht'ir Lord-
ships propose, therefore, to make
the order in this form : Their
IiOr(lshi[)s, being of opinion that it
is expedient that sufficii'nt security
should be taken from the respon-
dent for the due performance of
Mich order and decree as Her INIa-
jesty may make on this appeal, and
that it was competent to the Sudder
Dewanny Adawlut to reijuire such
peenrity to be given, or otherwise
to provide for the protection and
secnrity of the property in- (|uestion
pending this a))i)eal, notwitlKstand-
ing that execution had issued be-
fore this apiieal was allowed, agree
to recommend Her Majesty to
order that the appellant be at
lit'erty to n;,ply to the Sudder
Dewamiy Adawlut for such se-
eiirity to be given, or such pro-
vision to he made, as she may be

advised." Subsequently the P. C.
refused to redecicle the facts and
dismissed the appeal, 25 Feb.
J 807.

In ]MAitARAM Tndar Kunwar
V. Mahakam Jaii'al Kunwar,
Skxi()|{ and JuMou, wives of the
Maharajah of IJiilrampur, 26 Xov.
1886, the petitioner asked for
special leave to api)eal from nn
order of the Judicial Commissioner
of Oiidh, and that pending the
hearing execution should be stayed.
The first court awarded the junior
widow, the respondent, nn annuity
of 2.5,000 rui)ees out of the Maha-
rajah's estates, the senior widow to
have the manage ment of the estates.
The Commissioner of Oudh re*
voked tiie iirst court's decision, and
ordered the petitioner to pay the
respondent half the net j)rofits of
the est^ite, her costs of 62,125
ru|)ees, and to lodge 5 lacs of
rupees out of the mesne profits
by 2oth of August, and decree of
execution stayed until decree under
appeal be determined. By a sub-
.seqiient order on 25 August 1886,
she was ordered to pay in what she
showed .sho had received out of the
estate — 281,525 rupees — by 1st
September, and the rest of the
5 lacs by 1st October. Tlie costs
and the sum of 284, ■■)2o rupees
slie paid into Court. The 281,i?23
rupees was immediately taken out
of court by the respondent.

1886, 13 Nov. Lord llobhouse.
Sir Barnes Peacock, and Sir R.
Couch granted special leave to ap-
peal, but felt a difliculty about
ordering a stay of execution. Their
Lordships thought the intimation
of their opinion that it was not
reasonable that the nsspondent
should be put into possession of so
large a sum of money as .1 lacs —
it being probable that she would
not receive more than the annuity
of 25,000 rupees — would be sudi-
cient. And with that intimation,
the petitioner was at liberty to
apply to the proper quarter in
India for the due security for all

MaII ARAM

jNi>\a KiNWAa
''. Mahahani

jAWAI.IvLNWAn.

JlrssrxrAT

jARIUTOOri
liCTOOl, I'.
JIl'SSlMAT
IIOSKIVEB
IJEUl'M.

!! i

! I

if!

Hi;"

[ill

■f i

438

i:)'

i' !

TfARAOUNTY
LuTCItMEEDA-
VAMAII I'. A'kN-
OAHA NaIDOO.

MONTAIGNAC r,
SUITTA.

B.N. A. ACT, 8. 101.— QUESTION OF FACT.

JIaiiaham
Indau Kunwar
V. Mahatiani
JaipalKunwah.

Tareest
Churn HoNNEr.

JEB V. MAIT-
LAND.

moneys paid in. The Order in
Council giving leave to appeal,
dated 26 Nov. 1880, was :" That
leave ought to lie granted to the
petitioner to enter and prosecute
her said apjieal from the order of
the Judicial Couunissioner of Oudh
of the 22 June last, and their
Lordships do further report to
Her Majesty that it appears to be
the reasonable course that the
plainlift' (respondent) should not,
pending the principal appeal, be
put into the possession of the large
sums in dispute, and tliat she
should not receive more tlian the
annuity of 25,000 rupees which
was decreed tc her by the iirst
court; and with this intimation of
advice their Lordships reconnnend
that the petitioner be at liberty to
apply to the pro|)er court in India
for the due security of all money
paid into the Treasury in obedience
to t!ie decree of the Judicial Com-
missioner of Oudh." [ Times news-
paper, 1886, Nov. lo, 36.] Sub-
sequently decided, 10 March 1888,
L. R. 15 Ind. App. 127, that the
jimior widow was only entitled
to an annuity of 25,000 rupees,
payable out of the entirety of the
lestator'.s estate,

MoNTAICyAC V. SlUTT.A, on
appeal from the S. C. Lagos and
C. of App. for the colony of Lagos.
The latter court ordered the peti-
tioners to pay in £4,928 19.9. 6rf.
within a week, and refused leave to
appeal to the Judicial Committee,
although the petitioner olfered to
find responsible persons to become
SLCi.'rity for this £4,928 19s. 6d.

188!), 29 June. The petitioner
asked for special leave to appeal,
and deposited in the Regi.stry of
the Privy Coimcil, to the satisfac-
tion of the Registrar, Treasury
bills to the amount of £5,000.
Lord Watson, Sir Barnes Peacock,
and Sir R. Couch granted leave to
appeal. The Order in Council,
dated 5 July 1889, contained the
following : — The petitioner to pay
Ju £300 as to costs, &c. " Fur-

ther, that execution ought to be
stayed pending the hearing of tlie
appeal, and that the Treasiuy bills
to the amount of £5,000 so deposited
as aforesaid in the Treasiu-y of the
Privy Council, ought to lie bclil as
having been <lej)()sited with ilic
said appeal." For subsequent
alTirmance of the judgment in this
case, see July 17, 1890, 15 Ann,
Cas. 357.

Where the Law is Correctly De-
cided, Judicial Committee will
not redecide the facts if the
Courts have been unanimous or
even divided in opinion.

In Naragunty Lutchmeeda-

VAMAH V. VeNGAMA NaIDOO,

Dec. 4, 1861, 9 Moo. Ind. App,
Cas. p. 87, a case from Madras in-
volving the right of succession
to a Hindoo ancestral estate,
Lord Kingsdown said [there
being also jiresent Sir L. Peel and
Sir J. Colvile] : " Both parties
went into evidence as to the facts,
and the Zillah Court first, and the
Sudder Court afterwards on appenl,
were of opinion that the plaintiffs
had sufficiently proved tbeir case,
and no difference of opinion ex-
isted amongst the judges below.
It is not the habit of their Lord-
ships, unless in very extraordinary
cases, to advise the revctrsal of a
deci.sion of the courts of luilia
merely on the effect of evidence or
the credit due to witnesses. The
judges there have usually better
means of determining questions of
this description than we can have,
and, when they have all concinrccl
in opinion, it must be shown very
clearly that they were in error to
indace us to alter their judgment;
but in this case we think that the
courts could have come properly to
no other conclusion than that at
which they arrived."

In TabeenyChurn Bonnerjee
t-,MAiTr,AND, 12 July 1867, 1 1 Moo.
Ind. App. Cas. p, 338, the sub-
stantial question boing the validity

B.N. A. ACT, s. 101.— WHO JUDGES OF FACT. 4.39

of a deed, Lord Cairns said [there
beiii" also present Sir James
Colviie, .Sir E. Vangbnn Williams,
Sir K. T. Kindersley, and Sir L.
P«'l] : " Xow the learned jud<;es in
the courts below — tiie two ju<I<;es
in the primary conrt and the three
judges in the Conrt of Appeal —
iiftve all arrived withont hesitation
at the conehision that the debt of
Es. 1.1, 071 was not a bond fide
del>t due from Obhoyehnrn, and it
wcdd be far from eonsistent with
the rides whieh their Lordships
have nlwavs laid down in dealing
with eases of this kind for them to
reverse a decision upon a question
(if fact thus unanimously arrived at
by five judges, unless the very
cienrest proof were addi.eed to their
Lcirdsliips that that decision was
erroneous. It is true that oidy
the two primary judges had before
them the witnesses, or the witness,
who were or was examined ; but
tiie three judges of the Court of
Appeal, conversant with testimony
of the kind whieh has to be
dealt with in this ease, were of
npiiiion tiiat the two judges of the
court lielow liad arrived at a just
coneliisioi) upon the evidence that
was ever adduced."

Ai,LES V. Qi'KBKC Warehouse
Co., from Q. B. Quebec, 8 Oct.
1884, atiirming Sup. Ct. In
P. C. IS Xov. 1886, 12 App. Cas.
101; 56L. J.P. C. 6. The appel-
lant lirought the action against the
respondent for damages for breach
of warranty as public wharfingers.
They stated tliey were the owners
or the " Bridgewater," of 1 ,556 tons,
that on 21 Nov. 1880 she was
moored by her bow to a post and
mooring block on the wharf of the
respondents; that owing to the
post bein- decayed tlie ship broke
fuvay. Lord Herschell said [there
lieing also present Lord Fitzgerald
nnd Sir Barnes Peacock] : " Their
Lordships having arrived at the
conelnsion that there has been no
error in point of law, the sole

HOUSE Co.

que.stion that remains for deter- Allen v. Qitb-
mination is, whether tlie judgment ^^'^ '^"^*
of tlie court below ought to be
reversed on liie ground that the
judges have taken an erroneous
view of the fads. Now, it has
always Im-cii the view taken by this
Connnittee in advising Her Ma-
jesty, when the (piestion for de-
termination has been whether the
concurrent judgment of the judges
who have been unanimous below
should be supported or lever.sed,
that unless it be shown with abso-
lute clearness that some bhmder o^*
error is apparent in the way in
which the learned judges below
have dealt with the facts, this
Committee would not advise Her
Majesty that the judgment should
be reversed. 'J'hat jjrinciple has
been laid down in many eases."
[His Lordship then read the pus-
sages given above from the judg-
ments of Lord Kingsdown and
Lord Cairns in Naragunty Lutch-
meedavamah r. Vengama Naidoo,
and Tareeny Churn Bonnerjee v,
Maitlnnd respectively, and con-
tinued] : " Their Lonlships entirely
adhere to the views thus expressed,
and therefore they dp not consider
that the question they have to
determine is, what conclu.sion
they would liave arrived at if the
matter had for the first time come
lx>fore (hem, but whether it had
been established the judgments of
the courts below were clearly
wrong." His Lordship then con-
sideied the evidence as to con-
tinuing to moor to one post (whicli
post tlu> judges below had exa-
mined) when a gale arose and the
tide was forcing the ship away ffoni
tlie post, and found tliat it could not
be said that the judgments "ere
wrong, and therefore they ought
not to be disturbed.

A prelimiiniry application was
made in the above ease that the
rotten post in question should be
ordered to be sent from 'Quebec
for the inspection of the Judicial
Committee, but the application was
refused.

1 ll J .: .-

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Hi ,i^:i!i

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■ '■ 'I

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fljil^

ll ,J
Dill

TnEBERGE V,

Landky.

440 B.N.A. ACT, 8. 101.— PREROGATIVE PRESERVED,

Fixing the Quantum of Damage.

— The Judicial Coinmittee may
thi-mselvcs fix the quantum of
diuuaj^e where it will avoid further
litiijation. The Windsor and
Annapolis Railway Co. v. The
Queen, in P. C. 21 June 188G,
55 L. J. P. C. 41; 55 L. T. 271
[see post, sec. 1U8J, reversing on
the iioint of damages the judgment
of the S. C. of IG Feb. 1885,
10 S. C. II. 335.

It appears from the City of Win-
nipeg V. Logan, 19 March 18S)2,
where special leave was asked to
appeal from the decision of the Q. B.
Manitoba, — the school case — that
where no order has been made for
recei>'ing appeals from a new dis-
trict or country, special leave must
always be obtained.

In Theberge v. Landry, Nov.
7, 1876, 2 App. Cas. 102 ; 46 L. J.
P. C. 1; 35 L. T. 640, a case
dealing with a controverted election
petition under Quebec Act of 1875,
Lord Cairns, L.C., delivering the
judgment, said : " Their Lordships
wish to state distinctly, that they
do not desire to imply any doubt
'^'hatever as to the general princi|ile
that the prerogative of the Crown
cannot be taken away exce})t by
express words ; and they would be
prepared to hold, as often as has
been held before, that in any case
where the prerogative of the Crown
has existed, precise words must be
shown to take away that preroga-
tive." [See ante, p. 308.]

One of the first cases on appeal
from the S. C. in which special
leave to appeal was refused, was
Johnston v. The Minister and
Trustees of St. Andrew's Church,
a petition on the part of the
minister, &c., to appeal. • The
cause of action was a disturbance
in the occupation of a pew, and
the action was raised by Johnston
to obtain damages for that. The
Sup. Ct. Montreal dismissed the
action with costs. On 3 Feb. 1876
the Q. B. Quebec affirmed that

decision [Monk, Sanborn, and
Tessier, JJ., Dorion, C.J., nnd
Riimsay, J., dissenting], 18 L. C J
113; 1 S. C. R. 235. The S. c",
28 June 1877 [Ritchie, Tuscjipiwui,
K()urnier,an(l Henry,.JJ., Kiihanis,
C.J., and Strong, J., dissent iii^r],
allowed the appeal, and ordered tlio
minister, &c., to pay Johnston §3oO
and costs in all the courts.

In P. C. Dec. 10, 1877, 3 Ajip,
Cas. 159 ; 37 L. T. 556 ; 2G W. R,
359, Lord Cairns, L.C. [there be-
ing present also Sir J. Coiviie, Sir
Barnes Peacock, Sir M. E. .Sinilh,
and Sir R. Collier], delivered the
judgment refusing special leave.
His Lordship, after reading the 'i;th
sec. of the Supreme Court Art,
38 Vict. c. 11. [see ante, p. 105],
said : " That section consists of
three parts; the second or inter-
mediate part of the section contains
the negcitive words, ' No appeal
shall be brought,' &c. Those words
their Lordships may leiive out of
consideration, because they refer to
what may be called the hypothetical
establishment of a court by tiie
Parliament of Great Britain and
Ireland [Judicature Act, 1873], by
which court appeals from the
colonies are supposed to be ordered
to be heard, and, inasmuch as no
court of that kind has been estab-
lisheil, that part of the section may
be omitted from our consideration.
I will read it, therefore, as if the
section ran thus: 'The ju(l;^meiit
of the Supreme Court shall in all
CMses be final and conclusive, sav-
ing any right which Her Majesty
may be graciously pleased to ex-
ercise by virtue of her royal pre-
rogative.'

" Now, their Lordships have no
doubt whatever, that assuminj;, as
the petitioners do assume, that their
power of appeal as a matter of rijiht
is not continued, still that Her Ma-
jesty's prerogative to allo.v au ap-
peal, if so advised, is left entirely
untojiched and preserved by this
section. Therefore their Lordships
would have no hesitation in a proper
case in advising Her Majestj to

B.N.A. ACT, 9. 101.— GUIDING PRINCIPLES. 441

allow an appeal upon a judgment
of this court.

"But the question remains, as-
suming that there is tb*^ power to
allow iin iippeal, is tiii.s a ease in
which tlif special prei'ogative of
Her Majesty should be exercised ?
" Upon that ground their Lord-
ships have been unable to discover
nnv a(l('(iu,ite grounds for the special
exercise of the prerogative." . . .
"If the particular value alone
is looked to (8300), there is not
that amount of injury which would
justify any special interposition of
the prerogative.

..." But whether right or
wrong, it is not a decision which
can have any bearing, or which can
occas.on any inconvenience, with
respect to a large number of other
cases. . .

" It would be a departure from
the principles which should guide "
their Lordships, " when advising
Her Majesty as to when nn appeal
should be allowed, to advise that
an appeal should be allowed merely
fur the purpose of testing the ac-
curacy of the construition put
upon a particular document, which
(locnnient, if it affects any number
of other cases, can be altei-ed at the
will of the party who asks for the
exercise of the prerogative."

During the argument. Lord
Cairns L.C., asked why should not
the (liiriculty be .•'olvetl by altering
the form of the contract, and Dr.
Ijeaue, for the petitioner, admitted
that might be ilone. Times, 1 1 Dec.
1877, ll«.

Then in Valin v. Langlois, 1879
[nee ante, p. 18], Lord Sclborne
Slid that it was necessary to show
loth that the matter was one of
importance and also that there was
really a substantial question to be
determined.

Therefore these cases decided : —
(1) Is the case one in which the
prerogative should be exercised —
namely, is it one of gravity in-
volving matter of public interest or
law? (2) The value or stake ought
to be considered ; that is, is it of

considerable amount, or affecting TiifBEROK f,
property of large amount ? (3) Has Landey.
the decision any bear ng on a large
number of other cases? (i) is
there a substantial question to be
decide 1 ? (o) There may be addiul
the case of Taxation. Thus in Law-
less V. Sullivan, in S, C. 15 April
187!), 3 S. C. li. 117, allirming
S. C. N. B. June 30, 1877 i in P. C.
22 Feb. 1881, 6 App. Cas. 373;
50 L. J. P. 0. 33; 44 L. T, 897
[where the decision of the courts
brflow was reversed], an appeal was
allowed, the question being whether
the Bank of British North America,
a corporation established in London
and out of the limits of the pro-
vince, was liable to be assessed
under the local Acts of New Bruns-
wick on its gross income within
the city of St. John, without taking
into account its losses [this had
been held to be the construction of
the Acts by Ritchie, CJ., Strong
and Taschereau, JJ., Henry, J.,
dissenting]. Leave to appeal
allowed. Order in Council, 29 Nov.
1879.

In Prince v. Gagnon, nn appeal Priwce i<,
from a judgment of the Supreme Ctagnon.
Court, 22 Jane 1882, 7 S. C. R. 386
[Sir W. Ritchie, C.J., Strong,
Fournier, Henry, Taschereau, and
Gwynne, JJ.], which reversed a
decision Q. B. Quebec of Sept. 18,
1881, 2 Dor. Q. B. 74, which had re-
versed the Sup.Ct. of Athabaska; in
P.C.Nov. 25, 1882, 8 App, Cas.103.
Lord Fitzgerald, in delivering judg-
ment [at which were present also
Sir Barnes Peaitock, Sir R. Couch,
and Sir A. Hobhouse], said : —

'• The suit involved a question of
a sum of about £1,000. On one
side it was alleged that this sum
ought to be taken into account, as
it represented goods which were
given upon a contract of sale by
the father to the sun on the occa-
sion of the father relinquishing
business in favour of the sou at the
time of the son's marriage. On
the other hand, it was alleged that
the transaction in question was not

M:'

pRINCK I'.
(jAONON.

i ' I

■iH

mil

442 B.N. A. ACT, s. 101.— NO GRAVE QUESTION.

a sale, and that it was a gift from
the father to the son, executed by
delivery of the goods in question to
the son. There was no doubt the
goods were nianually delivered to
the son, and if it was intended
to be a gift, the fact of that exe-
cuted delivery, though without any
writing, would be quite sufficient to
vest the property in the son." [This
was the same result as had been
come to by the S. C]

His Lordship continued : —
" Their Lordships having looked
into the case, see that it involves no
thing whatever beyond this £1,000.
There is no grave question of law
or of public interest involved in its
decision that carries with it any
after consequences, nor is it clear
that beyond the litigants there are
any parties interested in it. The
question for their Lordships to de-
tei'inine is whether under such cir-
cumstances they will recommend
Her Majesty to grant to the peti-
tioners special leave to appeal.
Before the constitution of the Su-
preme Court of the Dominion of
Canada there was a right to appeal
from the courts then in existence
where the value of the matter in
controversy was beyond £500, but
that does not apply to the Su-
preme Court. The language of the
legislature of the Dominion is : —
* The judgment of the Supreme
Court shall, in all cases, be final
and conclusive, saving any right
which Her Mfijesty may be gra-
ciously pleased to exercise by virtue
of her royal prerogative " ; ami
their Lordships are not prepared to
advise Her Majesty to exercise her
prerogative by admitting an appeal
to Her Majesty in Council from
the Supreme Court of the Dominion,
sa\e where the case is of gravity
involving matter of public interest
or some important question of law,
or affecting property of considerable
amount, or where the case is other-
wise of some public importance or
or a very substantial character."

And applying the principles laid
down in Johnston v. Minister of

St. Andrew's and Vaiin v. Langlois,
refused the petition.

City of Mostreai, v. Le<

ECCLESIASTIQUES DE St. SlM.PICE.

In Q. B. Quebec, 27 Jan. IHHS,
4Mon. Q. B. 1; :i2 L.C.J. 13,
which was rever.sed by S. C,
19 March 1889, 16 S. c' H. 39!)'
33L. C. J. 197; in P. C. Julyii;,'
1889, 14 App. Cas. (JOO; 59
L. J. P. C. 20; Gl L. T. 053.

This was a petition for s])ecinl
leave to appeal. The action whs
to recover $361.90, the amount of
a special assessment for a drain
made along the property of the de-
fendants, who contended that thpjr
property, being an educational in-
stitution, was exempt from taxation
under 41 Vict. c. G. s. 2(). The
defendants maintained lu'tore tln'
Supreme Court that they lind a
right to appetd to that court, the
matter coming under the words,
"Where tV ' rights in future niav
be bound," uprenie and Excheqner
Court Act, s. 29. The ai)[)eal of the
defendants to the S. C. being .suc-
cessful, the City of Montreal applied
to the Judicial Committee for s]h'-
cial leave .o appeal. Lord Watson
said [there being also present Lunl
Hobhouse, Sir Barnes Peacock,anil
Sir K. Couch] :—

" In considering applications of
this kind, it is necessary to keep in
view that the statute of Canada
38 Vict. c. 11., which established
the Supreme Courtof the Dominion,
floes not give to unsucces.stnl liti-
gants a direct right, either absolnte
or conditional, to appeal from the
decisions of that tribunal. Sec. 4"
expressly uic^'res v>iat no apiwl
; i'l-nn any jndg-
'■ .Supreme Court
tJ'.vblishe.l by tlu>
Ireat Britain ami
a appeals or peti

shall b( hi
ment or on
to f^ny CO-
Ptvrliam.t'ni o
Ireland by v.

tions to Her Majesty in Council
may be ordered to be heard; but
saves any right which Her Majesty
may be graciously pleased to exer-
cise by virtue of her royal preroga-
tive. It is the duty of "their Lord-

B.N.A. ACT, s. 101.— APPEARING llIGHT.

443

ships to advise Her Majesty in the
exercise of her prerogative, and in
tlie (lisfliarge of that (hity they are
Imiiiid to a|)ply their jtidicial dis-
cretion to the ])articuhir facts and
eiiciimstaiK'es ol; each case as pre-
sented to them. In forming an
opinion as to the propriety of allow-
ing an a])i)f'al, they must necessarily
relv to a \ ei y great extent npon the
ftntemeiits contained in the petition
with regard to the import and effect
of the jiidgnicnt complained of, and
the reasons therein alleged for treat-
ing it as an exceptional one and
jicrmitting it to brought under re-
view. Ex[)erience has shown that
great caution is required in accept-
ing these reasons when they are
not fully substantiated, or do not
n])[iear to be prima facie estab-
lished by reference to the peti-
tioner's statement of the main facts
of the case, and the qtiestions of
law to which these give rise. Cases
vary so widely in their circum-
Ktanoes that the principles upon
which an appeal ought to be al-
lowed do not admit of anything
approaching to exhaustive defini-
tion. No rule can be laid down
which would not necessarily be
siihject to future qualification, and
an attempt to formulate any such
rule might therefore prove mis-
leading. In some cases, as in
Prince v. Gagnon, 8 App. Cas. 103,
their Lordships have had occasion
to indicate certain particulars, the
ahsence of which will have a strong
influence in inducing them to ad-
1 ise that leave should not be given,
lint it by no means follows that leave
will be recommended in all cases
ni which those features occur. A
'Mse may be of a substantial cha-
racter, may involve matter of great
public interest, and may raise an
important question of law, and yet
the judgment from which leave to
nppeal is sought may appear to be
plainly right, or at least to be un-
attended with sufficient doubt to
jjistity their Lordships in advising
Her Maje-sty to grant leave to
apiieaJ.

The exemption which the Su- City of Mow

preme Court has sustained in the
present instance is a stiitutory one.
The petitioners narrate the 77th
section of the Consolidated Statutes
of Lower Canada, cap. 15, and then
proceed to allege that the effect of
the judgment will be ' to deteruiine
the future liability (meaning, appa-
rently, non-liability) of buildings
set a[)art for purposes of education,
or of religious worship, parsonage-
houses, and charitable and educa-
tional institutions and hospitals, to
contribute to local improvements
carried out in their interests and for
th(! benefit of their properties.' Had
that statement been well founded,
it might have been an importiint
element in con.sidering whether
leave ought to be given. But it is
plainly erroneous. The statute in
question, which relates to ' public
education,' exempts the properties
al)ovo enumerateil from educational
rates levied for the purposes of the
Act, and from no other rates.

" The clause upon which the
jud^ lit of the Supreme Court
proceeded is .sec. 26 of the Statute
of the Province of Quebec, 41 Vict,
c. 6., which is an Act to amend the
laws respecting public instruction.
It enacts that 'every educational
institution receiving no grant from
the corporation or municipality in
which they are situated, and the
land on which they are erected, and
its deiiendencies, shall be exempt
from municipal and school taxes,
whatever may be the Act or charter
under which such taxes are imposed,
notwithstanding all provisions to
the contrary.' The seminary of
St. Sulpice admittedly does not re-
ceive any grant from the corpora-
tion of the city of Montreal, and is
therefore within the benefit of the
exemption created by sec. 6, and
the only issue raised between the
parties is. Whether a district rate
for drainage improvements, levied
from that i)ortion of the municipal
area which directly benefits by its
expenditure, is or is not a municipal

tax within the

TRE.Mi I'. Le8
ECCLESIAS-
TIQCKS DB St,
SULPICB.

of thQ

■i::|j

ffiifl

plifflp

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ill :!

ill ;

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City op Mow-
trbal v. Les

EcCLESIAS-
TKJUES DE St.
SULPICE.

1 I i

'HI!

GnAND Trunk
Eailwav Co. v.
JJeckett.

444 B.N A ACT, s 101.— DECISIONS ON TAXICS.

clause ? The pptition does not .set
forth the source from which the
petitioners derive their nuthoritv to
execute su<'hiinpro\pmonts as (Irain-
a<;o, and to assess for their cost.
Powers of that descriptioH are en-
trusted to municipal bodies, pre-
sumably in the interest of the pub-
lic, and not for the interest of private
owners, although the latter may be
benefited by their exercise. J'rhnd
facie, their Lordships see no reason
to suppose that rates levied for im*
provements of that kind are not
municipal taxes, and at the he,. ring
of the petition their impression was
confirmed by a rererence to the
general municii)al Acts for Lower
Canada. The counsel who appeared
for the petitioners stated, however,
that their powers are derived, not
from the general Acts, but from a
charter, the terms of which were
neither refi-rrcd to nor explained.
If the terms of the charter materi-
ally differ from those of the general
Acts, that deprives the case of any
general importance. But it is quite
possible that the concluding words
of see. 6 may have been purjjosely
introduced by the legislature in
order to secure uniformity of ex-
emption, whatever might be the
teri)-:; in which the power to assess
was conferred; and that conse-
quently, in construing the clause,
the expression ' municipal taxes '
ought to be interpreted according
to its general acceptation, and not
according to the meaning which it
might be held to bear in some
charter or statutes applicable to
particular mtmicipalities. In these
circumstances, their Lordships are
not prepared to advise Hei' Ma-
jesty that the petitioners ought to
have leave to appeal. If such
questions are, as they say, of fre-
quent occTirrence in the city of
Montreal, they may have the oppor-
tunity of obtaining the decision of
this Board in another case, upon
appeal from the Court of Queen's
Bench for the province. The
petition, therefore, must be dis-
missed."

St. Lawrence and Ottawa
Railway Co. v. Lett, U .S. C. R
422. and n. p. 449 ; in P. C. 20
March 1880 [|)resent Lonl \\\m\.
burn. Lord Monkswfll, and .Slf ]{
Couch]. An application IVir s|H.tini
leave to appeal from the decision of
the S. C. was made. The nctioii
was raised by the husband and
children for damages for tlie lo-s
of his wife and their mother nt a
level crossing. The jury nwnnlHl
85,800, which were divided lictwiin
the husband and five of \\w d;;!.
dren. The eldest child licuii; 3o,
and second child over 21, got no-
thing. The petitioners, the railway
company, contended that tlie plain-
tiff mnst show pecimiary rlamacp
resulting from tlie death of the por-
son killed, or loss of roasonalile
expectation of benefit, and this rnt
having been shown no damuirp.s
ought to have been given. That
actions of this kind were of con-
stant occurrence, and it was of
great importance to obtain a de-
cision from the highest trihunnl.

Lord Blackburn said : 'I'hpir
Lordships did not grant leave simplv
because there was a difference of
opinion among the judges. The
majority of the judges of the Court
below had decided there was sutli-
cient evidence of loss to sustain the
action. The question now was
whether the present case was of
such gravity or importance as to
justify the Court breaking through
the ordinary rules. Their Lord-
ships did not think so. Applica-
tion refused. 6 Can. Gaz. 583.

Grand Trunk Railway Co. c.
Beckett, 8 O. R. GOl ; 13 0. A. E.
174; 16 S. C. R. 713; in P. C,
22 July 1887 [present Lord Hob-
house, Sir Barnes Peacock, Sir J.
Hannen, and Sir R. Crouch], In
this case Beckett's executor bronght
an action for the death of Beckett
while driving a wagon over the
Grand Trunk Railway track. The
Railway Act of the Dommion pro-
vides that a bell shall lie rung

B.N. A. ACT, 8. 101.— JURY DECISION".

445

and a whistle sonniled on approaoh-
in<' a levul track. Some of the
'phM lii'l'l ihiii^e were statutory
(]l)lii;iitioiis and ought to have been
tomplifil With. Eeekett's life was
insiufd, and the jiidjje directed the
jiiiy to take that into consideration,
uiul they deducted the amount of
the policy, 8-,500, from their awunl.
This direction was overruled by
the Court of Appeal and the S. C.
See Lord Watson's opinion in the
uext case, where his Lordship gives
the facts.

Application was made by the
Grand Trunk Railway to the Judi-
cial Coininittce for special leave to
a|ipeii', stating the above facts, and
that xdur other actions depended
oil tliis case. Lord HoV)house, in
delivering the judgment of the
Board refusing lea\e, said the case
was not of suflicient public im-
portance to warrant lea' ;. See
9 Can. Gaz. 3i)l.

Grand Tuunk Railw.w Co. v.
Jenxinos, an appeal from Ct. of
Ontario, G Sept. 1887, 15 O. A. R.
477, alfirniing a decision of the
Q. B. Out.; in P.O. Aug. 4, 1HH8,
13App. Cas. 8'.0; 58 L. J. P. C.
! ; 59 L. r. G7i) [present, Earl of
Selborne, Lord Watson, Lord Hob-
iioii^e, and Sir Barnes Peacock].
In this case the C J. and a jury
in Q. B. Ontario had awarded
$(),UllO for the man's death, not-
withstanding he had insured for
S2,000, of which the widow got the
benefit. That decision had been
affirmed by the Ontario Court of
Appeal.

Lord Watson said (13 App. Cas.
802) : " The learned j udges of the
Conrts of Ont.ario considered them-
selves bound by the authority of
Beckett v. The Grand Trunk Rail-
\yay Co. [see above], which was
finally deciiled, on appeal from
Ontario, by the Supreme Court of
Canada. In that case, which was
very similar in its circumstances to
the present, the judge presiding at
tlie tnal directed the jury to deduct
S2,50O, the amount of au insurance

policy on the life of the deceased, Ghand Trunk
from the sum at which they esti- Railway Co. v.
mated the pecuniary loss sustained
by his wife and children through
his death, and the jury, follow-
ing the direction, assessed damages
at §3,250. An order olitained by
the plaintiffs to show cause why
the verdict should not be increased
by the sum of §2,500 so deducted
was made absolute by a Divisional
Court of the Queen s Bench, and
judgment entered for the plaintiffs
for the sum of §5,750 with costs.
In the Court of Appeal for Ontario,
and also in the i'ourt of Appeal
for Canada, the case gave rise to
much diffeience of judicial opinion ;
but, in lioth, the decision of the
Divisional Court was upheld.

" In this appeal the appellants
have raised precisely the same [joint
which they unsuccessfully pressed
in Beckett's case. They have never
in the courts below sujisrested that
the receipt of the insurance money
by the widow was merely one of the
circumstances which ought to be
taken into account by the jury in
estimating her pecuniary loss ; their
contention has all along bet^n, that
the primary duty of the jury is to
assess damages, irresiiective of any
such consideration, and that the
court or the jury are then bound,
as matter of law, to deduct from
the damages asses.sed on that footing
the full amount paid to the widow
under the policy. It is trui^ that,
in the reasons of appeal appended
to their case, the appellants plead
alternatively that the jury ought
at least, in awarding such damages,
to take the receipt of the said
insurance money by the respondent
into their consideration ; but liti-
gants who have accepted the pre-
siding judge's refusal to give a
direction in law, which, if given,
would practically have withdrawn
the insurance money from the con-
sideration of the jury, cannot be
permitted to impeach their verdi(!t
for the first time in a court of
review, on the ground that the
judge ought to have given a direc-

■irv

440 B.N.A. ACT, s. 101.— ARGUMENTS REVKRSEI).

Grand Trunk
Railway Co. t:
Jbnninqb.

f i

;'•;

' I

'I'"!!?;

!:i!

tioii the very revorse of that for
wliicli they insisted at the trial.
Uuiorts, tluTcforo, it can be .sliown
that every eeiit of the §2,000 puiil
to the resi)on(lent on aeeount of
tlu! noliey upon her hnsl)an(rM life
nuist, as matter of law, be de-
ducted from the S(5,0U0 found by
the verdict of the jury, the present
appeal must fail." The above
wonld lie sullicient for the purposes
of this section, but as thest; two
cases of Beckett and Jenninj^s jjave
rise to nuich ditt'erence of juclieial
opinion in Canada, the following
part of the judf^ment, as lo the
correct mode of calculating the
wife and children's pecuniary loss,
is given ; —

Lord Watson continued : " In
Beckett's case, as well as in the
present, all the courts bellow have
justly held that the right conferred
by statute to recover damages in
respect of death occasioned by
wrongful act, neglect, or default, is
restricted to the actual pecuniary
loss sustained by each individual
entitled to sue. In some circum-
stances, that princiitle admits of
easy application ; but in others, the
extent of the loss depends upon
data which cannot be ascertained
with certainty, and must necessarily
be mutter of estimate, and, it may
be, partly of conjecture. When a
man has no means of his own and
earns nothing, it is obvious that his
wife or children cannot be pecu-
niaiy lo.^ers by his decease. In
like manner, when by his death the
whole estate from which he derived
his income passes to his widow or
to his chiki (as was the case in
I'ym V. Great Northern Railwa\',
June 15, 180;}, 2 B. & S. T59;
4 B. & iS. 396), no statutory claim
Avill lie at their instance. A very
different case arises when the means
of the deceased have been exclu-
sively derived from his own exer-
tions, whether physical or intel-
lectual. It then becomes necessary
to consider what, but for the acci-
dent which terminated his existence,
would have been his reasonable

prospects in lif«, work, nml iv.
muneration ; and also how fur ilics",
if n^alised, would have eoudiiccd to
the benefit of the individuiil claim.
ing comiK'nsation. 'i'luir Lord-
ships are of opinion that iil! cir.
cumstances which, though insiilii-
cient to exclude a statutory clniiii,
may be legitimately pleaded in
diminution of it, ought to he sub-
niitted to the jury, whose sppciul
function it is to assess duiiiii'.'c
with such observations from iIh'
presiding judge as may be snjigcstid
by the facts in evidence. It appi'ins
to their Lordships that nioiicv pio-
visions made by a husband for tho
maintenance of his widow, in wlmt-
ever form, are nuitters proper to lio
considered by the jiu'v in estiiimtiiii;
her loss ; but the extent, if iiiiy, to
which these ought to be im[)iit('il
in reduction of damages, must di'-
pend on the nature of the provision
ant' the po.sition and means of tlic
deceased. When the deceased did
not earn his own living, but liad an
annual income from properly, om'
half of which has been settled
upon his widow, a jury iniirlii
reasonably come to the conclusion
that, to the extent of that half,
the widow was not a loser by his
death, and might confine their es-
timate of her loss to the interest
which she might probably have bad
in the other half. Very diffeieiit
considerations occur when tin'
widow's provision takes the sliapi'
of a policy on his own life, effected
and kept up by a man in the posi-
tion of the deceased William Jen-
nings. The pecuniary benetit
which accrued to the respondent
from his premature death, consisted
in the accelerated receipt of a snni
of money, the consideration lor
which had already been paid by
him out of his earnings. In such
a case the extent of benefit may
fairly be taken to be rejireseated
by the use or interest of the money
during the period of acceleration,
and it was upon that footing that
Lord Campbell, in Hicks v. Newport
Railway Co.,1 7 Feb. 1857,4B.&S,

B.!^.A. ACT, s. 101.— LEAVE GIVEN BELOW.

417

note, I), lo;!, .su}.'St'»ted to the jury
llmt, in otiiimting tho widow's
Idss.'tho bciu'lit which she derived
Iriiiii iieci'leriitiou ini<;iit be eoui-
u'lisiited l)y de(hictin<; from their
isiimate ol' tiie future eiiniiiigs of
the deci'iised the nmouut of the
piimiiims wliich, if he hud Uved,
hf would iiave had to pay out of
bis earnings for the maiiitenunce of
the policy. For these reasons their
Lonlsbip.s are unable to ntfirm that
the exri'ption taken by the appel-
lants to the riding of the presiding
juiif^e is well founded. They are
not "disposed to regret the result,
hwiiuse it appears that the learned
juiigu exeliuled from the consiiler-
iitiou of the jury all chances of the
deceased having obtained a rise of
wages, or of his having been able
to iimke some further provision for
his widow." Appeal dismissed.

Tiie above two cases show the
extremely favourable position Cana-
liian litigants are in. For if an
appeal on a vexed question coming
from the Supreme Court of Canada
is not entertained by the Judicial
C'ouanittee, the same question, if
of the appealable value, can be
iieani by the Judicial Committee if
it comes from the minor courts
direct.

McDouGALL V. McGrkevy, see
14Q.L. E. 30. InP. C. 21Ju]y
1888, present Lord Hobhouse, Lord
Macnaghten, Sir E. Couch, and Sir
Barnes Peacock.

Tiiis was an application to the
Judicial Counnittee to rescind an
order of the Q. B. Quebec giving
leave to appeal in an action brought
bv the pluintiti' to recover damages
for the profit made on the sale of
IjUOU shares in the North Shore
Raihviiy.

Judgment in the Sup. Ct. was
given in favour of the plaintiff
McGreevy.

The Q. n. affirmed the liability
of the defendant, but varied the
Sup. Ct. judgment, and directed a
reference to experts to ascertain
and certify to the Sup. Ct. as to

10 Aug

certain transactions alleged to have McDouoALr, v.
taken place in resfjcct to the shares. McGueevy.
On McDougall lodging his appeal,
McOreevy petitioned for its dis-
nussiU. lie contended there was no
right of appeal, the matter being
an aj)peal from an interlocutory
judgment. Lord Hobhouse, in re-
fusing to rescind the order, said the
objection could be raised on the
liearing of the appeal, though their
Lordships at the i)resent stage must
assume the judges were right in
giving leave to appeal. Petition
(iisnnssed v'th costs, Queen's Order,
18b; 11 Can. Gaz. 35)1.
Sub.seipiePfiy, 20 Julv 1889, see

15 Q. L. it. 198, and Queen's
Order, ?j July 1889, the Judicial
Committee [Lord Watson, Lord
Hobhouse, and Sir R. Couch] re-
versed the judgments of both
courts below, and dismissed the

plaintiff's action, McClreevy to pay
the costs of the appeal to the P. C.

In Maguka v. Maguba, Dec. Maocra t'.

12, 1885, 6 Can. Gaz. 248; Queen's MAauR.t.

Order, 29 Dec. 1885, the husband

had secured a divorce in America

for desertion, and the wife had

obtained against the husband ali-
mony in the Canadian court. The

husband asked leave to appeal.

The amount in question was above

the amount given in the Ontario

Act. The action was brought in the

Chancery Court, Ontario, by Mrs.

Magura, and the defence set up

was that the husband had been

divorced in America and had mar-
ried again. The domicile of the

husband was Canadian, but thi?

American court of St. Louis had

found an equiv. lent to domicile and

had dissolved the marriage. The

respondent maintained leave ought

not to be granted, as the question

in the Canadian courts had pro-
ceeded on a question of fact. 'J'he

CO irt in Ontario held that, inas-
much as there was no bond Jide

residence by thehusbanilin America,

the decision of the American court

had been obtained by fraud.

The husband's counsel said there

1 1

i ■ I !

Maoura v.
JSiIauuiia.

I i

!.H:

418 B.N.A. ACT, 8. 101.— ALTHOUGH JUDGES DlFFLR.

niicht be a reMidfiicti in Americiv
wliic'h would give the Aiiu'riciiii
courts jurisdiction, ulthough tlw
parti(^s .still retiiiiicd their Cuiiiidiaii
domicile. The Ainericuri judg-
ment was u judgment within its
juri.sdiclion, and to these pintles not
a foreign judgment, therei'ore it
cannot be (examined on tlu; grounc'
ot I'raud, and could not be inquired
iiito.

Lord Monkswell said their Lord-
ships felt so much doubt and diili-
culty about the easi^ that they were
not prepared to difl'er fioni the
court below. It had been sug-
gested that an important and diili-
cult question aro.se, namely, that
there miyrht be u residence of
parties sulficient to support the
jurisdiction in u case of this kind
which would not amount to domi-
cile, liut this (piestion did not
arise;, inasmuch as both courts had
found on the pr(diminary question
of fraud that the decree wu.s invalid.
I'nder these circumstances, it ap-
peared to their Loidshi[)S that there
was not sullicient ground to grant
leave to appeal.

To obtain leave to appeal in a
question of fact it is very important
that their Lordships should have
uU the materials before the!;i. See
Canada Central Railway v. Murrav,
in S. C. May 1, 1882; 8 S. C. K.
313 ; in P. C. June 30, 1883,8 A pp.
Cas. 574, an action on account
brought by the respondent against
the railway company to recover
money due for fencing along the
line. In the S. C. it was held by
Fournier, Henry, and Gwynne,
JJ., allirmiug the Out. Ct,, where
the judges being equally divided
the verdict in favour of the plaintiffs
stood, that a new trial ought not
to be granted, the decision not being
against the weight of tividence.
Kitcbie, C.J., and Tascbereau, J.
were of a different opnion, and
that there was no evidence that
Foster (a person appearing to act
as manager) had authority to bind
the railway company in the con-
tract be made.

Lord Watson [there bein" nl<o
present Sir llarncjs Pcmcick, Sir
ItolH'rt P. Collier, Sir lUibnl
Couch, and Sir Arthur Ibililioiisc]
said : Th«;ir Lordships are ol' opinidn
that this application ungiit to iw
refused. 'Flie cas»i nmde liy tin'
petitioners, the railway ('imi|miiv,
is that they were not iiable to liif
plaintiff, Murray, as having ein.
ployed him to nuike certniii IVnciii"
along the line. They aiicgt! timt
that contract was made witii a
gentleman of the name of Fdstcr,
who was not only a servant of liic
company, b>it a contractor wiiji
the comi)any, dealing with them us
nn independent contractor. Tlif
judge put the question to the jiin,
Whether they were siit'slicd tlwt
the pluintifl contracted in the be-
lief that he was dealing with llu'
company ; and further put tliiM|iics-
tion to them. Whether tlii'('oni|i!iiiv
had fostered that be iel', anil (Icait
with the plaintiff on the iontiii;;
that they liad contracted wilii iiiiii;
and in the event of the jnry com-
ing in point of fact to the con-
clusion that both those (lucstioiis
should be answered in the airiiinii-
tive, he directed them tluit a ver-
dict should follow for tlu; pliiiiitill',
The jury found for the plaiutiff.
The questions that seem to have
been discussed in the courts below
may be said to be two: first,
whether there was evidence to go
to the jury at all, making the peti-
tioners parties to the contract bv
adoption or recognition ; and, in
the second place, whether the evi-
dence was sutlicient to establisli the
fact that they had recogniseil or
adopted the contract, which was
admittedly made by Foster with
the plaintiff. There has been a
difference of opinion in the court
below. The majority of the judj'S
were of opinion that the verdict
was warranted by the evidence be
fore the jury, and the couri^e taken
by the judge was consequently not
only justifiable, but right. The
view taken by the minority of the
court was that there was no evi-

B.N, A. ACT, R. 101— PULE LATT) DOWN.

449

ilenop to po to the jury n[)on tlmt

iKiiiit— lit It'n^t, no cvidciico of a
Mitisfiictdry ili'scripfioii — and tliat,
ilirritorp, 111" vcnlict of tlic jury
„ii<r|ii to lie w't nsiilc and judgment
vnwtvi\ I'oi' •'"' dcl'ciidants. Now
the (iiic^liiin liffoi'o tlio Court was
whctlu'r tlii'i'i' was cvidi'nfc in point
of liic't, iiii'l wlmt waH tlif effect ol'
lliiit cvidcnco. Tlmt the judge.s l)e-
liiwiuivcdillVnui upon a (piestion of
liuf ill rcfjiu'd to an ordinary t-on-
limt iif cinploynient doe,** not seem
Id lie any rcMson for perniittinnf an
ii|i|i('iil, lm\iiiK regnni to the terniH
(il till' stiitiite wliicli now rcfiiidates
ilii'scii]ilicn!s. 'I'heir Loi'dships nro
;il<o licsiroiis in this ease to lay
tlifflii the riilo tlmt they will in
Intiiiv exijcct parties who are [x'ti-
tidiiiii;; i'lii' leave to bring an appeal
iKtorcthis }h\m\ to .state siieoinetly,
liiit fully, in their petition, the
;.'inmi(ls niioii wliieli they nmke that
iIiuiiukI. Tliey certainly expect
tlmt imrtics will confine themselves
ill fiitinv to the petition, and will
iiiil wander into extrnneotis matter,
»iiili as till' record and jtroceed-
iiigs, over wliicli this Hoard, until
an apiieal is permitted and the
|iii|ii'is are sent to England by the
|irii|)cr authorities, have no control,
ami which they cannot accept on
an e.v parte statement, which nn
aiiplication of this kind is." Peti-
ti(Jii refused.

The following are samples of
cases in which special leave
has been granted.
Att.-Gen. op Ontario v. Mek-
(F.R,Nov. M, 1881, 5 S. C. R. 538,
ivversing, 27 March 1880, 0 O. A.
R. 576, and Pi'oudfoot, V.C, Jan.
lH7i), 26 Gr. 12G. The question
was wliothcr on the failure of heirs
">' niio Andrew Mercer, of Toronto,
who (liedin 1871, the province of
Ontario became entitled to his
• state as Icffislative assignee of the
t-'rown. The respondent claimed
the Dominion was entitled. Proud-
f'>ot, V.C, decided an escheat
iifiTiied for the benefit of the pro-
I vinee and not for the Dominion.

S 2340.

MRRrTR.

The Ap|)oal Coiut ofOnturionfflrm- Att.-Okn. or

ed this, but the S. V. reversed, •,VL?."'r *''

giving judgment for the Dominion

as against the province. 'I'he ni»-

])(dlant contended tlmt lands in

Ontario weie granted and are held

in fee and common socage, and

that an escheat was an incident of

tenure in socage, as it was of

tenure bv knight service before tho

12Chas.'lI.c.2l. Tlmt before con-

federation, property of this nature

did not belong to Her Majesty

personally and for her private use,

nor to llie empire at large, but,

like ungranted and unappropriated

wild lands, belonged to the pro\ ince,

which still had all rights not ex-

|)ressly taken from them. The B.

N. A. Act did not repeal the old

eonslilntional Acts, or (K'clare that

all enumerated rights possessed by

the province were to cease. Tho

right to lands escheated for want

of heirs was intended to be h'ft to
the provinces. .SVe sees. 109, 117,

post. Lands, mines, minerals,
royalties, and other [>roperty Ik'-
longing to each province was
declared to be continued to belong
to them. All lands in Ontario
were held of the Crown, and not of
a mesne lord, and the Crown re-
tained in them the right of escheat.
If such escheats were prerogatives
of the Crown, then they belonged
to the proxiiice as royalties. The
respondent maintained that tho
onus was on the province to show
escheats belonged to it, and that
they had failed to do. Real pro-
perty of subjects dying without
heirs escheated to the Crown jure
coroniv. Since the passing or the
B. N. A. Act, the right of the
province cordd only Ije determined
by reference to the i)rovisions of
that Act, and either the right to
escheats was giv«'n expressly to the
Dominion, or, not being given ex-
preprsly to the province, belongeil
for that reason to the Dominion.
If lands in Ontario escheated to
Her Majesty in right of her royal
prerogative, the Att.-Gen. >* the
Dominion, and not the Att.-C5m.

F F

I '

■lii d

Att,-Oir. of
Oktabio v.
Mbbcbr.

tHt

Nasmitk v.
Marninq.

Caldwull v.
McLabbk.

i;i'

460 B.N.A. ACT, 8. 101— REASONS FOR SP. LEAVE.

of the province, was the proper
person to represent Her Majesty.
The lands and minerals assigned to
the several provinces were such as
then belonged to the several pro-
vinces. Escheated lands could not
be regarded as "royalties," and
Her Majesty formed no part in the
provincial legislature, as she did in
the Dominion.

1883, 28 Jan. Lord Blackburn,
Lord Watson, Sir Barnes Peacock,
Sir R. Collier, and Sir R. Couch,
granted leave to appeal. 18 July
1883, additional documents were
allowed to be lodged. July 18,
1883, 8 App. Cas. 767, Earl of
Selborne, L.C., gave the judg-
ment, reversing the S. C, and said
it was some satisfaction the courts
of Ontario and Quebec agreed on
this question. His Lordship re-
ferred to Att.-Gen. of Quebec v.
Att.-Gen. of the Dominion, 8 Sept.
1876, Q. B. Quebec, 2 Q. L. K.
236, where Dorion, C.J., Monk,
Ramsay, Scnborn, and Tessier, JJ.,
were unanimous in holding that
the Dominion Government had no
claim to the escheats there in ques-
tion, and reversed Sup. Ct. 29 Jan.
1876, 1 Q. L, R. 177 (Taschereau,
J.). See sec. 109, post.

In Nasmith v. Manning, Feb.
12, 1881, 5 S. C. R. 417, aflimiing
5 O. A. R. 126, reversing 29 U.
C C. P. 34, the appellant was
a judgment creditor of a railway in
Canada, and he sued the respon-
dent as a shareholder therein for
calls. The S. C. held that the
document relied upon and signed
by the respondent was only an
application for shares, and that it
was necessary fo" the appellant to
have shown notice of allotment of
the shares to the respondent, which
he had not done.

1881, July 2. Allowed— but the
case was subsequently settled. See
Cassel's Digest, 1893, 890.

In Caldwell v. McLaren,
Nov. 28, 1882, 8 S. C. R. 435,
reversing 5 O. A. R. 363, and re-

storing the judgment of the Court
of Chancery, Ontario. In tiiis
case the respondent claimed to pip.
vent the iloating of tiuilK-r down n
stream, the stream not bcini' siioli
a stream as would float tiuilnr
without the artificial improveiucnts
which the respondent liml erected,
and that such a stream did not
come within the Canadian Act 12
Vict. c. 87. s. 5; C. S. U.C. c. 4H
.s. 15; R. S. O. c. 115. s. 1; and,
secondly, that Boale v. Dickson wa.s
in point.

1883, March 6. [Present Sir
Barnes Peacock, Sir R. (Collier, Sir
R. Couch, and Sir A. Hobhonsp.]
It was stated the question affected
the navigation of near'yailtiie rivers
and streams of Canada, besides
various matters of revenue. Tlieir
Lordships, considering tlu; great
public interest the case involved,
granted leave. Times, 7 Marcii, ia.

The judgment allowing special
leave was as follows : — " Tu the
case of Prince v. Gagnon, from the
S. C. of the Dominion oi: Canada,
their Lonlships said they were not
prepared to advise Her ilajesty to
exercise her prerogatiw or ailmit
an appeal to Her Majesty in Coun-
cil from the S. C. of the Domin-
ion, save where the case was of
gravity involving matters of publie
interest or some important question
of law, or ailecting property of con-
siderable amount, or where tlie
case was otherwise of some public
importance or of a very substantial
character. Their Lordships think
this case falls entirely within the
rule there laid down. The ques-
tion for their Lordships to consider
is: Is there a prima facie case
made to induce their Lonlsliips to
grant leave to appeal from the de-
cision of the S. C. in this ease?
The judges of the S. C. [Sir W,
Ritchie, C.J., and Strong, Henry,
Taschereau, and Gwynne, JJ]
were unanimous; but they over-
ruled the decision of 0\o Appellate
Court of the provn.ce, in which
the judges were almost unauinious
[Spragge, C.J.A., and Patterson

I It

B.N.A. ACT, s. 101.— ARGUABLE CASE.

451

and Morrison, JJ. \., Burton, J. A,,

Jissentinff], there being only one
who dissented. Looking at all the
drcumstances of the case, their
Lordships think this is a case
wiiicli may he said to be arguable,
without expressing the slightest
opinion as to what may be the re-
suit of tliis decision. Their Lord-
i^iiips have also taken into con-
lijdpiaiion the fact that in this case
the rigiits of parties will not be
dekved. The [jlaintiff has got his
injunction, and the only difficulty
is witli reference to the expen.ses of
this appeal. The appellants are
willing to bear that expense, and
they come to ask Her Majesty to
exercise her prerogative. Their
Lordships think that, under all the
circumstances, it would be right to
advise Kor Majesty to admit this
appeal; but that is u|)on condition
of a sutiicipnt sum being deposited
to bear tlie expenses. Looking to
the immeiisi' mass of i)aper here,
their Lc.Iships think that the or-
dinary sum of £300 is hardly suffi-
cient to cover tlie expense ; they
therefore tliink that it ought to be
upon the deposit of tlie sum of
£500. There is one other point
to which their Lordships wish to
idliide; that is, the objection which
has been made to the jurisdiction
of the Dominion Parliament to
pass the law with reference to the
.S. C. of Canada, and also the power
of the Supreme Court of Canada
to entortain such an appeal as
this, which involves a question of
ihe construction of the Acts of
the provincial Parlia-nent. Their
Lordships do not tbmk there is
any ground for allowing that ques-
tion to be raised on the hearing of
llie appeal."

Subsequently in P. C, April 7,
1S84, 9 App. f IS. 392 ; 53 L. J.
P. C. 33, reversing S. C, held
that the right to float timber down
streams extended to all streams,
even when such streams would
[lot be floatable without artificial
'iiiprovement, Roale v. Dickson
1W3. 13 U. C, C. P. 337 [where

a person was held entitled to
charge a toll for use of a slide
in running timl)er where there
was not sufficient water to pass
timber without his dam and slide],
overruled.

MooDYViLLE Saw Mill Co.
AND British Columbia Towing
Co. V. Sewell, 9 S. C. R. 527.
This was a suit brought by Sewell,
the owner of the sailing boat the
" Thrasher," against the above ap-
pellants, who are the OAvners of the
tugs "Etta, White" and "Beaver"
respectively, which were emi)loy-
ed in towing the " Thrasher " with
a cargo of coal. The suit was
brought by Sewell for .S80,000
damages for negligence in running
the " 'J'hrasher " on to a rock in the
Gulf of Georgia. The ship arrived
in ballast at Royal Roads, British
Columbia, 22 May 18H0. The nms-
ter thereupon entered into a con-
tract with the agents of the " Bea-
ver " to tow the vessel to Nanainio,
and from thence to Cape Flattery
with coal, for .'^GOO. Arriving at
Xanaimo aiul loaded with coal 14
July 18 HO, the master of the
" Beaver " engaged the " Etta
White " to assist in the towing. On
the 14th July they started, the two
tugs towing. The same night the
"Thrasher" struck on an unmark-
ed rock 1,200 yards outside rocks
marked on tiie chart as Gabriola
reef.

The several owners of the tugs,
though pleading separately, both
contended that, in accordance with
the Canadian Act, 31 Vict. c. 58.
s. 12 (see also ')1 & 58 Vict. (Imp.)
c. (iO. s. 503), they were not liable
ri>r an aggregate exceeding 838.92
per ton of tlieir tug's tonnage where
the loss has occurred without their
actual fault or privity.

Begbie, C. J., discharged the jury
before they had given any verdict
lor either party, lait (hey answered
several questions put by the; judge.
On a motion for judgment, the
judge found for the defendants.
S. C. B. C. affirmed the decision.

F F 2

Caldwbll v.
McLaren.

moodyvillb
Saw Mill Co,
AND British
Columbia
TowiNO Co.
V. Sewell.

'"' 1

■,i

iS ,

462 B.N.A. ACT, H. 101.— WHERE ACT IN QUES,

Jl !

t.A.

moodtville
Saw Mill Co.
AND Britis^h
Columbia
TowiNo Co.
V, Sewell.

CORl'ORATIOX

OF City of
Quebec v,
Quebec Cex-
TiiAL Eailway.

Lewin I'.
Wilson.

On 16th Jan, 1884, S. C. set
aside the decision of S. C. B. C. and
gave judgment for S80,000.

Defendants a])pealcd, and alleged
that the decision was contrary to
Smitn V. St. Lawrence Tow Boat
Co., March 24, 1873, o L. K. P.
C. 308.

1884, 14 June. Leave granted.

Cohpokation ok the City

OF Ql'EBEC V. QnEBEO CeNTHAL

Railway, .Tinip 23, 1884, 10 S. C.
R. 503, reversing Q. B., Quebec.
This Avas a claim on the part of
the Corporation of Quebec to rank
pari passu with the Quebec Cen-
tral Railway on the proceeds of the
judicial sale of the Levis and Ken-
nebec Railway, of which 43^ miles
were completed. The respondents
contended that they were not enti-
tled to this as 45 miles of the rail-
way had not been completed, a con-
dition precedent specified in the
Quelle Act 37 Vict. c. 23., and
necessary to legalise the issue of
the bonds of which the eor[)oration
Avere the holders. A subsequent
statute, 39 Viet. c. 57., the S. C.
held, had rendered these, the bonds
in (]uestion, valid, altho\igh the
conditions in 37 Vict. c. 23. might
not have been fidfiUed. Tliis
agreed with the corporation con-
tention that the legislature, which
in 1874 had authorized the issue of
the l)onds only after 45 miles were
completed, had the right to declare
in 1875 that those bonds were valid,
though issued before tlie comple-
tion of 45 miles.

1884, Leave granted to the
Central Railway Co, of Quebec to
api^eal.

In Lewix v. Wilson, 9 S. C. R,
637, aifirming the judge in Equity,
S. C. N, B,, in a suit for- the fore-
closure of a mortgage, the ques
tion related to the construction and
application of sec. 40 of the Imperial
Statute of Limitations. 3 & 4 Will.
4. c. 27., and 7 Will. 4. & I Viet,
c, 28., which had been adopted and
re-enacted in New Brunswick, and

are respectively sees. 29 & 30 c
84. of the C. S. of N. B., intitul«i
"An Act relating to the limitntions
of real actions,"

1885, 13 June, Speciul loaw
allowed, Subsequentlv, .Tune 2.")
1886, 11 App, Cas, 639; oo L. J
P, C, 75 ; 55 L. T. 410, reversed.
In Windsor and Annapolis
Railway v. The Qikkn a.nd
Western Counties Railway,
Feb. 16, 1885, 10 S. V. \\. 33i{
reversing Gwynne, J., in Ex-
chequer, the appellants cliiimcd, liv
means of a petition of lij^lit, diuu-
ages against the Dominion for do-
priving them of the possession of a
railw.ay. One of the questions was
whether an action for dmnages for
a tortious act did lie by petition nf
right against the Crown. The S. C.
held the Crown liable.

1885, 4 July, Special leave to
appeal was granted to the itppcl-
lants, on the ground that there was
involved the question whether
effectual relief by way of specific
performance was not awarded to
them ; inasmuch as the amount
awarded to them by the .Snprenie
Court, namely, .S9589'7, was wlioilv
inadequate for the damage caused
to them by being put out of pos-
session of the railway in question;
secondly, that it was awarded on
an erroneous principle, nnmeiv,
that the appellants might recovir
damages against the respondents,
the Western Counties Railway
Company, in respect of the period
that that railway company wore
in possession of the line,

14 Nov,, cross appeal allowed to
be presented. In the cross appeal
[present Lord Monkswell, Lord
Hobhouse, Sir B. Pencoek, and
Sir R. Couch], the Attorney.
General for the Dominion set out
in his petition that the Windsor
and Annapolis Railway Company
raised this action against tlii'
Canadian Government, citiuJ
also the Western Counties Rnl-
way Company, l.y petition o(
right ; that in the S. C Ritd'ift

BSA. ACT, s. 101.— LEAVE FOR CROSS APP. 153

C'.J., Fournier, Henry, and
Tiischeivau, J. J. [Gwynno and
Strong:, JJ., dissenting], held that
lb iietition of right lay against the
L'rowu, tint the judges disagreed
as to the measure of damages —
Ritchie, C.J., and Taschereau, J.,
liokling that the Windsor and An-
napolis IJaihvay Company were
only entitled to damages for the
pcrioil tluy were out of possession
prior to the Western Counties
Railway being put into possession,
Henry and Fournier, J.f., holding
that the Crown was liable for the
ic/io/c perioil of the exclusion of
the Windsor and Annapolis Rail-
way Company out of possession ;
that the (hunages of 8t)589.7 were
a-sessed on the footing of the find-
ing of Ritchie, C.J., and Tasche-
reaii, J.; that as leave to ajjpeal
had been grunted to the Windsor
and Annapolis Railway Company,
it wonhl be of importance to
have also decided the question
rai<i'd by the Crown, namely, the
validity of the petition of right.

Siibseiiuuutly the Judicial Com-
iiiiltee,Juue 25, 1H8G, 11 App. Cas.
(iU7;55L. J. P. C. 41 ; 55 L. T.
271, reversed the S. C. in so far as
it assessed the damages at 89,589.7,
andfonnd the suppliants, the apiiel-
liuits, entitled to receive .'?il 15,000
from Her Majesty as damages by
reason of their having been de-
prived of possession of the railway
liom 1 Aug. 1877 to 1 Dec. 1879.

Special leave was also allowed
iu Moore c. Connecticut and

Mo.NTHEAI, LU'E AsSUKANCIi Co.

TheS.C.,13Dee. 1879, GS.C.R.
6111, reversed Ct. Appeal Ont.,3 0.
A. 11. 230, which had affirmed a
'Wsion (the judges being eipial)
ottheQ. B, Ont., 30 June 1877,
^1 1'. <-'. Q. B. 497, making ab-
solute a rule imi to set aside the
verdict found for the plaintiff in au
action on a life policy. The question
iiUhecase was whether the insured,
^•ho died from the effects of a bolt
I "ll'ng on his head, had not truly an-
I iwered the questions propounded

to him on entering into the iusur- ^fooBB v.
ance, and this involved the question <-'0NNEtTicuT

whether about 12 years before the
insurance he had had a piece of his
skull extracted. The jury found
that tiie deceased had oidy been
attended at the time in question for
SOUK! trifling ailment. The judge
entered iq) judgment for plaintiff.
Defendants applied for a new trial.
The Q. B. Ontario set asiiU' tli.it
decision and entered judgment for
the defendants. On appeal to the
Court of Appeal, Onta-io, that
court was equally divided, and the
judgment for defendants stood.
The S. C. reversed this result,
and directed the original verdict
lor the plaintiff to stand. This
was affirmed in tiie Privv Council,
7 July 1881, 0 Aj.p. Cas. 014.
Their Lordshiits said that the Board
could order a new trial to take
place if it thought it nec(.'ssary [.vce
below], l)Ul, siroiidly, that in
"order to justify the granting of a
now trial they must be sitisfied the
evidence so strongly prepiouderates
in favour of one party as to lead
to the conclusion that the jury, in
finding for the other party, have
I'ither wilfully ilisregarded the evi-
dence or failed to understand and
appreciate it." As to the power of
the S. C. to order a new trial, Sir R.
Collier [there being also present
Sir Barnes Peacock, Sir M. E.
Smith, Sir R. Couch, and Sir A.
Hobhou.se] said : " The first question
is whether or not the Court of Q. B.
(Ontario) were right in setting
aside the verdict for the phiintitf
and directing a verdict for the
defendants. Their Lordships have
no doubt that the Court of Q. B.
were wrong. In the Law Reform
Act of Canada (37 Vict. (Out.) c. 7.
ss. 32, 33) there is a provision that ii
judge may direct the jury to make
certain specific findings, and himself
enter the verdict ; and sec. 33 directs
that 'every verdict shall be con-
sidered by the court iu all motions
affecting the same, as if leave had
been reserved at the trial to move in
any manner respecting the verdict,

AND Montreal

Lu-B ASSUR-
ANtK Co.

454

B.liT.A, ACT, s. 101.— PiNDmG OF JURY.

^;il!

11^: ii

Ntl;

J ;

M OOBB V.

Connecticut
AHD Montreal
Life Assur-
ance Co.

: I

;

( '

and in like manner as it' the assent
of pnrties bad been expressly given
for that purpose.' It was under
that power that the Court of Q. B.
acted. Undoubtedly that court
had power to enter the verdict in
accordance with what they deemed
to be the true construction of the
findings, coupled, it may be, with
other facts which were taken as
admitted or were so clejirly proved
that no controversy could arise
about them. 13ut it is not in the
power of a court to enter a ver-
dict in direct opposition to the
finding of the jury upon a material
issue, and that is what the Court
of Q. B. have done. Putting aside
for the moment the other questions,
their Lordships referred to one
question only ; — ' Had he any
serious or severe personal injury
which, through forgetfulness or in-
advertence, he (lid not counnunicate
to the company ? ' The jury
answer that question ' No,' that is
to say, they find that the assured
had no serious or severe personal
injury. The Court of Q. B., in
direct contradiction to the finding of
thejury, in effect find that he had had
a serious or severe personal injury.
So again with respect to the other
issue, the jury find that he had not
been attended by any physician
other than Dr. Sampson, the person
mentioned, for any disease, but
only for trifling ailments as dis-
tinguished from diseases ; and they
further state that he answered the
question relative to his attendance
by medical men truly. The Court
of Q. B. in effect say that he had been
attended for disease, and that he did
not answer the questions truly.
Again a finding in opposition to the
finding of the jury. Their Lord-
ships are clearly of opinion that the
S. C. of Canada was rijiht in re-
versing the judgment. The ques-
tion of a new trial remains, and a
new trial has been contended for
upon two grounds — misdirection,
and the verdict being against the
weighi of evidence. With respect to
misdirection, it has been already rh-

served that the counsel for tho de.
fendants, although he ilid insist that
the learned judge ouglit to have
taken the case upon himself out of
the hands of the jury, did not make
any objection to the direction to
the jury, assuming it to be a case
for them ; and it has been further
observed that the rule does not
point to any misdirection, except
the not withdrawing the caso from
the jury. It seems to tlicir Lon!-
ships, therefore, somewhat lute for
this objection to Ije iakon; Imt
assuming it to be open to the de-
fendants, their Lordships, aftercare
fully considering the suiiuiiing up
of the learned judge and the ques-
tions which he put to the jury,
although no doubt those (luestions
may be open to .some criticism, and
some form of words mny be snj;-
gested which might on the wlioie
be more apt, are unable to see that
the jury were in any way mis-
directed or misled. They are,
therefore, of opinion that a new
trial on that ground should not \)c
granted.

" The last question is, whether a
new trial should be granted on the
ground of the verdict being against
the weight of evidence, and this is
one of more difiiculty. The S. C.
of Canada were of opinion that
they had no power to direct a new
trial upon this ground, that power
being taken away from them by
sec. 22 of .38 Vict. c. 11., being 'An
Act to est<iblish a Supreme Court
and a Court of Exchequer in the
Dominion of Canada,' That sec-
tion is in these terms : ' When the
application for a new trial is upon
matter of discretion only, as on
the ground that the verdict is
against the weight of evidence, or
otherwise, no appeal to the Supreme
Court shall be allowed.' It is
necessary to refer to two other sec-
tions. Sec. 17: * An appeal •iliall
lie to the Supreme Court froji all
final judgments of the highest
court of final resort, whether such
court be a court of appeal or of
original jurisdiction.' Sec. 38;

B.N.A. ACT, s. 101.— NEW TRIAL REQUISITES. 456

'The Supreme Court shall have
power to dismiss an appeal or to
give the jiidgmeut, and to award
the process or other proceedings
which the court whose decision is
appenled ngaiust ought to have
awiu'ded.' If the lust two sections
had stood alone, the Supreme Court
of Appeal in Canada undoubtedly
would have been entitled to make
auy order or to give any judgment
wliich the court below might or
ought to have given, and, among
other things, to order a new trial
on the ground either of misdirec-
tion or the verdict being against
tlie weight of evidence. Their
Lordships have to consider whether
this power, conferred by these two
sections, is taken away by the
:!2nd section, or, in other words,
whether the 'J2nd section applies to
a case of this kind. It is true that
au application was made to the
court helow for a new trial, but
not only for a new trial; it w"'-
also au application, and this
was the main point of the appli-
cation, to enter a verdict for
the defendants. The Court of
Q. B. were of opinion that the
defendants were entitled in point
of law to have a verdict entered for
them, and did not apply their
minds to the question of the grant-
ing or withholding of a new trial,
nor did they exercise their discre-
tion upon that subject. No appeal
is brought in this case against the
exercise or non-exercise of the dis-
cretion of the inferior court. It
seems to their Lordships that sec. 22
applies only where an appeal is
brought from a judgment of the
court below in which they have
exercised a discretion, and thf. as
no such judgment was given, and
no appeal on that subject has been
brought in the present case, the
power of the court was the same as
if no application had originally
been made for a new trial, and that
tlie S, 0. could have ordered a new
trial on the ground of the verdict
•^ing against evidence if the Court
«• Q. B. ought to have done so.

However, this question ceases to Moobb v.
be of any general importance, au Connecticut
Act recently passed enabling the L,pjj ^ggcR.
court to exercise this very power ance Co.
[see -43 Vict. c. 34. s. 4. ; R. S. C.
c. 135. s. Gl.] Their Lordships
may observe that there is a section
in the local Act [sub-sec. 3, s. IH,
R. S. O. c. 38. ; see R. S. O. 1887
c. 44.] not precisely in the same
terms but to the same effect, limit-
ing the jurisdiction of the Appellate
Court of Ontario, with respect to
which they take the .same view, in
accordance, as they understand,
with the view of the Appellate
Court of Ontario. Be this as it
may, it has not been disputed that
their Lordships have the right, if
they think fit, to order a new trial
on any ground." His Lordship
then said it had been a question
requiring serious consideration
whether or not that power should
be exercised in this case : that the
evidence on the side of the defend-
ants rather preponderated, but that
was not enough to justify their
Lordships in granting a new trial.
His Lordship then continued:
"Their Lordships are unable to
S4iy in this case that the evidence
was not so clear or so strong in
favour of the defendants as to lead
them to" the conclusion the jury
had wilfully disregarded or mis-
understood the evidence. " Taking
into consideration, moreover, that
the company have all along con-
tended, not for a new trial, for
which they seem to have insisted
almost for the first time here, but
that they were entitled in point of
law to have a verdict entered in
their favour, their Lordships do not
deem it their duty to send the case
to a new jury, and thus probably re-
commence a long litigation." De-
cision of the court below aflfirmed,
and apjieal dismissed with costs.

Sun Fibe Okfics v. Habt, from Sun FtBB
the Windward Islands. Special
leave was granted, and a new
trial granted Feb. 16, 1889, 14
App. Cas. 98; 58 L. J. P. C. 69;

Office v.
Hart,

,■ ;r

456

SCTN FiBE

Office v.
Hart.

'fl:

Jenouhe r.
Delmeoe.

iiH

B.N. A. ACT, s. 101.— LEAVE AN13 COSTS.

60 L. T. 337. This wus au up-
peal from a jiulgnient given at
Barbadoes, 17 June 1887. It was
uuder the appealable %aliie, bat
sijecial leave was allowed on the
ground that its decision was of
general importance to lire in-
surance companies. One condition
of the policy was that if anything
was done on the i)remises, &c.,
insured to increase the ri.sk. " If
by reason of such change or form,
or any other cause whatsoever,"
the comi)any shoidd desire to ter-
minate the insurance it should Ite
lawful for it to do so. Fires oc-
curred on the insured plantation, and
on an anonymous letter threatening
further inceniliarism being .shown
to the company's agent, tlie com-
pany gave notice to terminate the
policy. They |)aid all the losses
up to that date. Afterwards another
fire occurred. The |)laintiff claimed
the policy was still in existence.
On March 7, 1887, Keece J., held
the (piestion was one of law and
g.ave judgment for the i)laintiff.
Defendants obtained a rule to show
cause why the %erdict should not
be set aside, and insteuil thereof a
new trial granted. The same
judge discharged this rule, and his
decision was affirmed by the Court
of Appeal for the Windward
Islands, consisting of three judges.
Lord Watson saiil [there being also
present Lord Fitzgerald, Lord
Hobhouse, Lord Macnaghten, and
Sir W. Grove]; "The neces.sary
legal result of their Lordships'
opinion is that the judgment ought
to have been entered for the tle-
fendants, who are appellants here,
of the trial of the cause. But the
appellants, in the court below, only
moved for a new trial, and the
judgment appealed from was given
with reference to that motion. The
case must therefore go back to the
Court of Common Pleas for Bar-
badoes, in order that the proper
order may be pronounced. Accord-
ingly their Lordships will humbly
ad\ ise Her Majesty to reverse the
judgment appealed from, to make

the rule nisi obttdned l)y the apnil-
lants absolute, and to order tli«
plaintiffs (respondents) to pay to the
defendants (appellants) tlie costs in
the courts below." " Seeiii<r that
th:s appeal was brought by specinl
leave, being below appealable valiio
on the ground that its decision was
of general importjmce to iusurniue
oilices, their Lordships tliink tluit
there ought to be no order us tu
costs here."

A new trial also ordered in
Campbell v. Commercial Baiikin<'
Co. of Sydney, Feb. 15, 1879!
New trial also in The Trustees ami
Executors Corporation r. Shoit,
1 Aug. 1888, 13 App. Cas. 793;
and in Jenoure r. Dehiiefje, 19
Dec. 1890, [1891] A. C. 73; (10
L. J. P. C. 11, an action for Jihel.
The Judicial Committee [Lortl
Macnaghten, who delivered jml;;.
ment, Sir Barnes Peacock, (?ir
11. Coucb,an(l Lord Shand] grautid
a new trial on the ground of mis-

direction

on a material pomt,
namely, that the defendant claim-
ing the communication was privi-
leged, that it lay on ilcfcndaut
to prove affirmatively that he hon-
estly believed the statements con-
tained in the alleged libel to be
true, and that unless and until tlmt
was made out by him to their
satisfaction, it was not incunilfcnt
on the respondent to prove expivss
malice. Lord Macnaghten .said;
"Their Lord.ships are of opinion
that no distinction can be drawu
between one class of privileged
comnuinications and another, and
that precisely the same cousidera-
tions ap[)ly to all cases of qualified
privilege. 'The proper meaning
of a privileged comnnmicntion,' as
Parke, B., obser\es, Wright r.
Woodgate, 2 C. M. & R. 597, 'is
only this: that the occasion on
which the communication was made
rebuts the inference prima frcit
arising from a statement i)rejmlical
to the character of the plaintiff, and
puts it upon him to prove tbat
there was malice, in fact — that the
ilefendaut was actuated by motives

tions we
dct'endi
what hi
in the
makiiif!
It is cle
defend
aotina
lor the
that the
some ot
ihity."
oontinut
therefor
a misdii
which
earriagc
see how
anythiii
Imviug
the que
The ju
the (\f
houestl
in his

B.N.A. ACT, s. 101.— NEW TRIAL ON TEEMS. 457

of personal spite or ill will, imle-
nendi'iit of the ocfii.sion on wbicli
the toiiimunication wits iuikU'.'
Tliere is no ivason why any greater
protection .xbould bo givt'ii to a
louiumnii'iition made in au.swer
to all iiuiiiiiy with refeiHMiee to a
sfi'viuit'f! charaeter than to any
ullior (•oiniiiiiiiicatiou made from
ii sense of duty, legal, morul, or
>oi'i!il. The privilege ^vould be
worth very little if a person making
11 (■ouiiiiuuication on a privileged
uecasioii were to be required in the
lirst plaee, and as a eondition of
iiuniunity, to [irove affirmatively
tliiit he honestly believed the state-
ment to tie true. In sucb a ea.se
bona Jidcs is always to be pre-
siiuied." His Lordship then eited
the following;; passage from Cotton,
L..T., ill Clark v. Molyneux, 3 (i.
B. I). 2.'i7 (a ease not of master and
servant, but of a eoniinnnieation vo-
lunteered from a .sense of <lnty) : —
"The burden of proof lay upon the
piaintilf to show that the defen-
dant was aetnated by maliee, but
tlie learned judge tohl the jury that
the defendant might defend himself
bv the fact that these eommnniea-
tious were privileged, but that the
defendant must .satisfy the jury that
what he did he did bond fide, and
in the iionest belief that he was
makiiij^ statements whieh were true.
It is clear that it was not for the
defendant to prove that lie was
aeting from a .sense of duty, but
for the plaintiff to satisfy the jury
that the defendant was aeting from
some other motive than a sense of
duty." Lord Maenagbtcn then
continued: "Their Lord.sbips arc
therefore of opinion that there was
a iiiisdirection on a material point,
whieh may have led to a mis-
earriage. "indeed, it is difficult to
see how the jury could have done
iinything but iind for the plaintiff,
Imviug regard to the way in which
the questiou was presented to them.
The jury were told that it was for
the defendant to prove that he
lione.stly believed the statements
in his letter to be true, whereas the

letter itself put those statements for- JEKorRE v.
wanl, not as matters of the truth I'ELMEaE.
of which the writer had satisfied
himself, but as matters calling for
iiupiiry and ccnisideration by the
proper authorities." New trial or-
dered, but on the terms that plea
of justilication shouhl not be raised

Where two contradictory judg-
ments arising out of the .same
collision, their Lordships will ex-
amine the evidence as to which
decision the widght of evidence
tentls, and may not send the case
back for a new trial. Thus in
Australian Steam Navigation Co.
(the "Birksgate") v. Smith &
Sons (the " Earrabool "), from S. C.
N. S. W., in P. C. May 2\, 1880,
11 App. Cas. 321 ; 58 L. J. P.
C. 101, a collision occurred between
the above two shi^is. The evidence
available was the same in each; yet
there were separate trials. In one
trial the jury found one ship wholly
to blame, and in a counter-action
the jury found the other ship wholly
to blame. Lord Watson said [there
being also present Earl of Std borne,
Sir IJarnes Peacock, and Sir R.
Couch]: "In cases like the present
it appears to their Lordships that
the fact of opposite verdicts having
been found by two different juries
does not devolve upon the court
the duty of exercising the func-
tions of a jury, and of deciding
the actions upon their merits. It
also appears to them that the decli-
naturt^ of the parties to submit the
decision of their counter-claim to
the same jury ought not to im-
pose upon the court the necessity
of issuing two decrees, which are
absolutely self-contradictory, where
that course can be avoided. The
parties may, no doubt, acquiesce iu
both verdicts, and in that case ju-
dicial effect must be given to them.
But where, as here, new trials are
moved for in both actions, the
court has the o[)portuiiity of doing
complete justice lietween the
parties. When the evidence led
in each is so fairly balanced that

J''

■ I i. !'

Jenocre v.
Delmeok.

I 1 I

Bank of
Montreal v.
Sweeny.

Mjlf

Great Wes-
tern Insdrance
Co. V. Jordan.

I )

North-West
Transporta-
tion Co. v.
Henry Beatty.

468 B.N.A. ACT, 8. 101.— "PERIL OF SEA" CASE.

a jury might reasonably find either
way, their Lordships are of opinion
that both cases ought to be tried
again, not separately, but together.
If, on the other hand, the verdiet
in one action is warranted by the
evidence, and in the other is 'against
evidence' in the ordinary sense of
the term, their Lordships see no
reason why the one sho'ild not
be allowed to stand and the other
be set aside." His Lordship then
considered whether the verdict re-
turned at the first trial could stand,
and, finding it could not, said it
must be set aside. Judgments
athrmcd and appeal dismissed.

Bank OF jMontre.\l i-. Sweeny.
Allowed because there was a ques-
tion of whether English or French
law should prevail, One Sweeny
allowed certain shai-es to be placed
in the name of Rose in the books of
a joint stock company. They had
the words " in trust " attached to
them, and a certificate was given
for these shares to " James Hose
in trust." Rose pledged the shares
without Sweeny's knowledge. The
Q, B. Quebec held that under
French law Sweeny was not en-
titled to recover. Majority of the
S. C. held Sweeny was entitled to
recover.

1885, 12 Dec. [Lord Monks-
well, Lord Hobhouse, and Sir R.
Couch.] Leave granted ; and ulti-
mately, June 25, 1887, the decision
of S. C. was affirmed. The law
being the same as in England,
namely, that a transferee from a
holder "in trust" is bound to make
inquiry. 12 App. Cas. G17; 56 L.
J. P. C. 79 ; 56 L. T. 897.

In North-West Tk.\nsporta-
TiON Co. V. Henry Beatty,
April 9, 1885, 12 S. C. R. 598,
reversing 11 O. A. R. 205, and
restoring 6 O. R. 300. The claim
in the action was to set aside a
sale made to the company by James
Hughes Beatty, one of the directors
of the company, of a steamer called

the " United Empire," of which
previously to such sale he was sole
owner. The company had lost a
steamer and required another. At
a meeting at which all the directors
except Beatty were present, a bje-
law was passed for the purchase of
the " United Empire " ; and at a
subsequent meeting of the share-
holders the bye-law was read and
passed. At this meeting J, H.
Beatty held an actual majority of
all the shares in the company, so
J. H. Beatty's own votes procured
the passing of the bye-law. The
S. C. held the purchase was illegal,
On the company appealing, 10
July 1886, special leave to api)eal
allowed.

Subsequently the decision of
S. C. reversed, July 21, 1887,
12 App, Cas. 589; 56 L, J. P. C.
102 ; 57 L. T. 426, on the, ground
that it was within the conipetoncy
of the shareholders to accc[)t the
contract of ptu-chase, and the ma-
jority of votes must prexail unless
brought about by unfair or im-
proper means, but there was no-
thing unfair in J. H. lieatty
exercising the voting jiower the
very constitution of the conipauy
enabled him to acquire.

The Great Western Insur-
ance Co. V. Jordan, 22 S, C. N.
B. 421, 22 June 1886, 14 S. C.
R. 734, reversing [Henry, J., dis-
senting] the court below. A ves-
sel, on her way to Miramichi, was
chartered for a voyage from Nor-
folk, Virginia, to Liverpool, She
arrived at Miramichi on Nov, 25th
and sailed on the 29th. She could
not get out of the river owing to
the ice, and remained frozen in all
the winter, and she and her cargo
of cotton had to be abandoned.
The S. C. held that the loss was
not a loss by " perils of the sea,"
covered by an ordinary marine
policy.

1886, Feb. 12. Special leave
given by the Judicial Committee.
See 8 Can. Otta. 464.

B.N.A. ACT, H. 101 —NOTICE OF APP. TO DOM. 459

JuThk Corpokation of Pauk-
DALE V. West, June 8, 1H8G, 12
S.C'.l?. 'I'yO, ivwrsiiij; 12 O. A. li.
;il)3, 1111(1 ivstoring 8 O. 11. .j!), tlic
(|iiestioii in issue was \vlietlu>r the
ii])|)('iliiiits were liable to the re-
<l)oiiilc'nt for damage to the i)re-
mises of which he was owner, by
icusuii of the construction of a
s\ibway in Queen Street, a street
paitlv in Toronto and partly in
Paikiliile. The Ontario Act IG
Viit. c. 15. authorized the uinniei-
lialitit'M eif Toronto and Parkdale
toa<5rei'uilh the railway companies
wliosi' railway ran into the city for
the toustrnctiou of railway sub-
ways, paying compensation for in-
jury (lone. The ai)pellants alleged
that the acts had been legally done,
pursuant to the recpiirements of the
Railway Committee of the Privy
Couniii of Canada, acting under tiie
Dom. Act 46 Vict. c. 24., and
(lenit'd that they had acted under
the Ontario Act, and that they were
ageuts of the railway companies,
to whom the respondent must look
for compensation. The respondent
I'ontiMided the apix^liants had not
complied with sees. 8 and 9 of the
Cou. Kail Act (Dom.) of 1879,
and thus they had no authority for
executing the work except under
the Ontario Act, and upon the
terms of paying compensation.

188G, July 10. Leave given to
apj)eal.

Subsequently the appeal was dis-
missed, Jidy 27, 1887, 12 App.
I'as. 602; 5G L. J. P. C. 66; 57
L. T. G02.

Leave was also granted in : —
Citizens' Insurance Co. v. Pau-
soxs, a case affecting insurance
companies' conditions in policies of
insurances, and the result was a
reversal of the decision arrived at
by the S. C. judges. There was a
Dominion Act and an Ontario Act
(39 Vict. (Ont.) c. 24.), and it was
heldthe Ontario Act was valid. [See
ante, sub-sec. 13, sec. 92, p. 268.]

In AxT. -General of British
Columbia v. Att. -General ok
Canada, there the question was
as to the property in mines and
minerals situate in the province
— whether they belonged to the
Crown as rcpreseut( d by the Do-
minion, or to the Crown as repre-
.seuted by the provinces. April 3,
1889, 14 App. Cas. 295; 58 L. J.
P. C. 88. [See lifotQ, jwst, sec. 109.]

The Judicial Committee may
suggest the intervention of the
Dominion or provincial Attorney-
General, as in old cases it suggested
the citing of the East India Co.

In St. Catherine's Milling
Co. v. The Queen and the
Att.-Gen. of Ontario, Dec. 12,
1888, 14 App. Cas. 46; 58 L. J.
P. C. 54; 60 L. T. 197 [see ante],
the question there concerning the
ownership of the Indian Keserve
Lands in the province of Ontario.

1887, July 22. [Present, Lord
Hobhouse, Sir Barnes Peacock,
Sir James Hannen, and Sir R.
Conch.] Mr. Haldane, who re-
presented the Att. -General of On-
tario, suggested that the Dominion
Government ought to be repre-
sented, as it was doubtful if the
important and constitutional ques-
tion at issue could be dealt with in the
most practical manner by an action
in which a private company and the
province were alone represented.
Lord Hobhouse, in expressing their
Lordships' .sanction to the appeal,
said : " This case affects a territory
so large that there would in all
probability be other cases, therefore
it would be convenient to advise an
appeal, and their Lordships would
be glad if the suggestion of Mr.
Haldane was carried out, that
the Dominion become a party to
the case." The Dominion did be-
come a party. See Times, 23 July,
1887, 56, and 9 Can. Gaz. 394.

La Banque D'Hochelaga v,
Murray, from Q. B. Quebec, 19
May 1888. The bank claimed that

Att.-Geh. op
British

Coi.CMDIA V.

Att.-Gen. of
Canada.

St. Catiie-
bine's Milling
Co. I'. Queen
and Att.-Gen.
OP Ontario.

Citizens'
Ihsubancb Co.
V. Fabsonb.

! r

?) ! I,

. !

!■•!

■M

.'I

460 B.N.A. ACT, s. 101. -IF JUGTS. INCOMPLETE.

La Bakque
d'hociielaoa

I'. MuRltAY.

Claiikson v.
Ryan.

the dotViuliints, liy xiffninj^ tlio
int'iiionimlimi of ussociatioii, — no
matter how the luttcis pati'iit had
been olitaiiu'd, fjoiidJi(/i' ov ivtiwUi-
It'iitly — wiTo liahU'. Oiu' L. Iiad
l)r('.s('iiti'tl a petition for incorpoi'a-
tion of a eoiiipany, falsely statinj;
that certain persons had promised
to come into the company if the
Government <^avo a subsidy, and
that they had come in and sub-
scribed. This was entirely false.
On the contrary, they had with-
drawn on the (Jovernment refusing
to {iriint a subsidy. The bank had
advanced money to the company,
and now soujijht to put the de-
fendants on the list of contribu-
torics.

1890, April 25. Lord ILdsbury,
L.C. [there bcinj^ also present
Lord 13rauiwell, .Sir Harnes Pea-
cock, and Sir U. Couch], said ;
If the Crown was deceived, the
whole letters patent must bo de-
clared void. 'I'hey coidd not bo de-
clared void in part. [Lord I3rnui-
Mcll : The Attorney-General of
(Quebec should help the court out
of the dilliculty.] JJompas, Q.C.,
who appeared for the alleged share-
holders, .said : If the case was ad-
journed he would comnnuucato
with the Attorney-Geneial, but
he suggested that the Conmiittcc
might ab.solve the respondents from
liability, and abstain from dealing
with the other points raised in the
judgment. [Lord Halsbury, L.C. :
No ; that would be very irregular.
It would, in fact, lay down a pre-
cedent for revoking letters patent
in part.] [See 14 & 15 Can. Gaz.
251, 270: 322 respectively.]

Ou Juno 25, 1890, 15 App.Cas.
411; 59 L. J. P. C. 102; G3L.
T. G3, Sir Barnes Peacock, deliver-
ing judgment, said : The Court of
Q. B. annulled the letters patent
only so far as the respondents were
concerned, but their Lordships are
of o[)iuion that the code does not,
in such u case as the present,
authorize a partial annulment of
letters patent. The facts were quite
sufficient to warrant a total annul-

ment of tlie letters patent. " If,
would be a great miscarriujri. of
justice if the respondents slioiiid
1h! held conclusively liound by a
false recital in the namc! of Un
^Majesty in letters patent obtaimd
by means of a false and fraudiilcnt
suggestion, verified by a false nlli-
tlavit, and should be compelled to
[tay the unpaid amount of shares
for which they were never .mil),
seribers and of which they wpic
never lO hoUlers. Her Majpstv
has the right under the Code rif
Civil Procedure (arts. 10154 and
1035) todenuind, by her Attorney-
General, the annidment and repeid
of letters patent obtained by means
of any fraudulent suggestions, and
this demand the Attorney-tieneial
of Quebec had, in the opinion of
iheir Lordships, made in Her M«.
jesty's name. Their Lordships,
having decided that the letters
patent cannot be partiidly iiniiuiled,
are bound to advise ller Majesty
to order that they be entirely an-
nulled, and to amend the juil<,nnpiit
of the Q. B. on the information for
the writ of scire facias, in aeeonl-
ance Avith that view. The letters
patent being annulled, there is an
end of the action at the suit of the
bank and of the interveners (the
liquidators) against the defendants
(respondents), as shareholders in
the incorporated company." Judg-
ment amended accorilingly.

In Clahkson r. Ryan, June 12,
1890, 17 S. C. R. 251, it was held
that the S. C. was not bound by
the Ontario Lcgislatun; (Ont. Jud.
Act, 1881, s. 43) requiring that
leave should be obtained from the
Ontario Ct. to appeal to the S. C.
when the amo>int in controversy
was under $1,000. Sir W. Ritchie,
C J., said : " The matter has been
before this court more than once,
appeals from Ontario being ob-
jected to on the ground that leave
lias not been granted under the
Ontario Act, and it has been stated
most unequivocally that this court
is not bound by the Act. If it is,

B.N.A. ACT, 9. 101 .—CASES OF ASSESSMENT. 461

then oncli province could lo<rislnto
so lis to tiiko away th(( jurisdiction
of this court altof^ftlipr."

NolM'll SlIOHE HaILWAY V.

PiON, .him- 20, IH87, 11 S. C. R.
077, reversing Q. 15. Qut'l)ef, 12
(1. L. 11. 205. Tiie Nortli Slioru
Railway lioiug allowed by Cana-
dian law to run thoir line along tin-
shore lietween high and low water
luiuk, were sued by Pion,a tanner,
roiMilislrncting his acfcss I'ronr his
lands to the river St. Charles, a
tidal navigable river witiiin the
limits of tiio harbour of Quebec.
Thp .S. C. held the railway com-
pany liable in damages, reversing
the Q. U. Quebec, which had in its
tnrn reversed the S\il>erior Court.

1887, 22 July. [I'resout, Lord
Hol)h()nse, Sir James Haunen, Sir
R. Coneli, and Sir Barnes Peacock.]
Leave granted. It' the order in
Canada is not drawn up, and it is
necessiu-y to oljtain special leave to
appeal on the ground that such
special leave will stay execution in
a similar ease in Cana(hi, their
Lordships may, in refusing leave
nntil the formal order is drawn up
(as in this case they did), make a
minute to the effect that the peti-
tion should stand over, with leave
to amend after the formalities had
been gone through in Canada, a
copy being supplied to th(^ peti-
tioners, which they could show
those concerned in Canada that
such appeal had been presented.
0 Can. Gaz. 391.

Ultiniatidy the Judicial Com-
mittee, 1 Aiig. 1889, 1-1 App. Cas,
612; 59L. J. p. C. 25; Gl L. T.
525, affirmed the S. C.

In Corporation of St. John's
r. Central Vermont Railway
Co., June 20, 1887, 11 S. C. R. 288,
Ritchie, C.J., Strong, Henry, and
Qwynne, JJ., against Fournier and
Taschereaii, JJ., reversing Q. B.
Quebec, 27 March, 1886, and Sup.
Ct., 10 March 1885. The S. C.
found the assessment void. The
question concerned an assessment

made by the Cor[iorfttion of St.
John on the railway [)roperty of
the Central Vermont Railway, es-
pecially as to the assessment on
the railway tracks and pari of n
railway ))ridge within the limits of
St. John's. This bridge ero.ssed
the navigable river Richelieu and
connected the town of St. John's
and the town of IlK'rville. 'I'he
railway comjjany submitted that as
the bridge crossed a navigable river
under the sole <'()ntrol of the Do-
minion nn(h'r the B. N. A. Act, it
was not sid)jeet to taxation by the
nuuiieipality, the real point being
whether or not anything more of
the land on which tin; sui)erstrnc-
ture of the railway is placed can bo
assessed in addition to the land it-
self. Ritchie. C.J., htdd that the
legislatiu'c had carefully protected
railways from any local assessment
beyond the mere value of the land
ai)art from, ami independent of, the
roadway with its superstriuitnre.
The (piestion thus invohed tho
construction of the 98th section of
•11 Vict. (Quebec) c. (52.,M'hich con-
solidates the Acts ineor[)orating the
town of St. John's, and which im-
ported certain soctioiisof tho " Town
Corporation General Clauses Act,
187G," 10 Vict. 0. GO. ss. 32G,
327, 370.

1887, Dec. 17. [Present, Lord
Fitzgerald, Lord Hobhouse, Sir
Barnes Peacock, and Sir R. Conch.]
According to the order giving
special leave to appeal, the peti-
tioners, the Corporation of St.
John's, stated that "If the judg-
nient of tho S. C, contrary to the
view of both courts in the province,
and to that of the two French
judges in the S. C. (Fournier and
Tascheroau,JJ.)iscorrect, the power
of taxation of the municipalities in
tho province of Quebec is greatly
limited, and that whether it is by
law so limited is a question of
great and general impoi'tance."

July 25, 1889, 11 App. Cas.
590; 59 L. J. P. C. 15; Gl L. T.
441, Lord Watson, delivering ti
judgment affirming the decision of

NoiiTii Siionis

U AM, WAY I'.
I'lOM.

ConponATioN
01' St. .Iohn'»
V. Central
Vebmont
Railway Co.

!■

OOBPOBATION

or St. John's
V. Centiiai.

VnnMONT

Railway Co.

Sheo Sinoh
Eai v. Mussu-
MUT Dakho.

462

B.N.A. ACT, 9. 101.— ARGUING ON FACTS.

the S. C [there In'ing nlso prosent
Lord Bminwcll, Lord Ilolihousd,
Sir Unrnes Peacock, and Sir II.
Couch], after ri'lVrriii}^ to the above
extract Iroiii the onlci-, said : " Tiicir
Lordships woidd not liavc nuuUMiny
reference to these initial procecd-
injfH had it not been that, at the
liearin}; of the appeal, their time
was cliiefl}' occupied by an eiidea-
vonr on the part of ai)pellant cor-
poration to ivr<;ne that, as matter
of fact, they had not, in any of the
yearly rolls upon which these assess-
ments were made, valued au<;ht be-
yond the land occupied by the
railway, and that they did not de-
sire to incluile, and had not in-
cluded, the bridge or other super-
structures in the estimate. Tlieir
Lordships pur[)o.sely abstain from
laving down any rule as to the
points which an appellant may com-
petently raise under an ai)i)eal 1»y
leave from the Supreme (.^ourt of
Canada. That must depend upon
the special circiunstances of each
case.

" But it must be under.stood that
parties who get such hnivo, upon
the distinct representation that they
desire to raise a particular que.stion
of law of great and general im-
portance, cannot be permitted, at
the hearing of the appeal, to change
front and say that no such (piestiou
arises, and to argue that the case
turns upon a question of fact which
the Supreme Court has wrongly
assumed or decided. If the apel-
lant corporation, in petitioning for
the exercise of Her Majesty's pre-
rogative, had stated the same case
which they attempted to present in
argument, it is almost matter of
certainty that leave to appeal would
have been refusid."

In reference to the above, in
Sheo Singh Rai v. Mussdmux
Dakho, April 13, 1878, L. R. 5
Ind. App. p. 114, Sir M. E. Smith
[there being also present Sir James
Colvile, Sir Barnes Peacock, and
Sir R. Collier], in delivering the
judgment, and after stating the

facts fully, saitl : " Under tho cir-
cumstances in which this apiniil to
Her Majesty conies on to be hianl
the ap[K'llunt ought to be prirlml,.,!
from insisting on his oljjectiou to
tile decree on the grounil of jts
being declaratory only, fa lii,,
petition to the High Court for
leave to appeal to Her Majeslv.thc
a[)pellant made no reference in the
groumis of appeal to this objection
to the decri'e. The leave ;;raiitp(l
by the High Court having lieeoiiU!
abortive, in consequence of tlie
deposit for costs not having licpii
made in due time, application to
this Board for special leave to ap-
peal was made. Jn the petition for
this leave again no reference was
made to this objection, but the np-
plication was based on the gronml
that iniportant questions alfectinf,'
a large community were in\olvu(l
in the decision sought to be np-
pealed from. This petition, after
fully stating the conclusions of the
High Court upon the evidence as to
Jain customs, contains the follow-
ing passage : • The petitioner now
humbly submits that the suit is one
concerning ])roperties of large value,
and involving tpiestions of great
importance to the sect of the Jain
couuuunity to which the petitioner
belongs.' Their Lord.ships having
on this groimd advised Her Ma-
jesty to grant special leave to ap-
peal, they are incited, when the
appeal comes on to be heanl, not
to examine or consider the im-
portant questions thus indicatt'd,
but to reverse the judgment on a
ground which altogether excludes
their discussion. 'J'heir Lordships
do not by any means intend to lay
down, as a rule, that no ([uestious
can be raised a., the hearing which
are not indicated in the petition
for special leave to appeal ; but in
the present case, considering the
whole course of the proceedings
in the court below, to which tbey
have fully adverted, the importance
of the questions upon which the
appellant obtained special leave to
appeal, and the somewhat technical

B.N.A. ACT, s, 101.~BYE-LAW CASE.

463

character of the objections rnisod
to the iniiintennnce of tlio Hiiit, they
think tilt' apijelliint ought not at
this Ktiifjo to bt! allowed to insist
that by rciisoii of these ol)jectioiis
the (lec'ree npijcaled from should bo
revcrsetl."

Canada Atlantic Rau-way
Co. AND Daniel C. Linsley v.
The CoiieouATioN of the Citi,-
OF Ottawa, May 17, 1880, ll!
S. C. B. 365, nfflrining 12 O.
A, R. 234 and 8 O. R. 201, and
the same appellants v. The Cor-
poration of Cambridge, June 11,
1887, lo S. C. R. 219, affirming
14 0. A. R. 299, reversing C. P.
110. B. 392.

1888,21 .liily. [Present, Lord
Mnfiingliten, Sir James Ilannen,
Sir Barnes Peaeock, and Sir R.
Couch.] Leave was granted. The
qwestion in both eases appeared to
be the validity of a bye-law passed
by the respective nnniicipalities for
granting a bonus to the appellant
railway company in the form of
debentures. Sec 11 Can. Gaz. 394.
The appeals were ultimately aban-
doned. Uassels' Digest, 1893,p.888.

In Clark v. Carson, April 30,
1889, 20 S. C. R. 034, affirmed
S. C. B. C. 20 Aug. 1885, reversing
a decision of the Chief Justice, the
question referred to the B. C.
Land Ordinance, 1805, with re-
spect to tlie diversion of unoccu-
pied water.

1889, Dee. 14. [Present, Lord
Halsbury, L.C., Lord Hobhouse,
SirRanies Peacock, and Sir M. E.
Smith.] Leave was granted. The
appeal was abandoned 7 April 1891.

In M'Laren on Shields v.
Leacock, S. C. 30 April 1889,
Cassels' Digest (1893), p. 004, the
question was a complicated one as '
to a paituersliip of lumber millers
and saw millers carried on in diffe-
rent names. There was a difference
of opinion in all the courts.

1890, April 20. Leave to appeal
granted. Case compromised.

RoniNsoN V. Canadian Pacific
Railway, July 23, [1892] A.
C. 481, reversing in part the do-
ci.sion of the Supremo Court of
Canada, 14 S. C. R. 105.

Lord Watson, in delivering judg-
ment [there being also present
Lords Maenaghlen, Morris, Han-
nen, Sliand, and Sir R. Couch],
said : " This action of damages was
brought by the a[)pellant . . .
the widow of Patrick Flynn, on
her own behalf, and as tutrix of
their minor child, upon the allega-
tion that the death of her husband,
which occurred (m the 13th Nov.
1883, was the result of bodily in-
juries sustained by him on 27th
Aug. 1882, whilst he was in the
service of the respondents, through
the negligence of their employes.
The case was tried in April 1885,
before Mr. Justice Uoherty and a
jury, who found for the appellant
and assessed the damages at .'i?2,000
to herself and 31,000 to her child.
The appellant then applied to the
Superior Court, sitting in review,
to have judgment entered in terms
of the verdict, and the respondents
moved for a new trial. The Court
rejected the appellant's application,
and allowed the respondents a new
trial, upon payment of the costs of
the motion, upon the grourd that
the presiding judge had wrongly
directed the jury that, in estimating
damages, they were entitled to con-
sider the anguish and mental suf-
fering of the widowed mother and
orphan child. That decision was,
on appeal, set aside by the Q. B.
Quebec, who gave effect to the ver-
dict with costs of suit. On appeal
from the Q. B. Quebec, the Su-
preme Com-t of Canada reversed
their decision, restored the judg-
. ment of the Superior Court in re-
view, and condemned the ai)pellant
in the costs of the appeals to the
Q. B. and to the Supreme Court of
Canada. On a second trial in Nov.
1888, before Mr. Justice Davidson,
the jury again found for the appel-
lant with $4,600 damages to ber<

ROIIINSON V,
CaNAOIANj

Pacific
Railway.

Canada
Atlantic
Uah.way Co.
AND Daniel C.

LiNSLBY V.
C'OBPORATION

OP City oif
Ottawa.

Clark t*.
Carson.

M'Laren ob
Shields v.
Leacock.

V\\ i\

< ■' f

yi 'v

(1)1

Robinson v.
Canadian
Pacific
Railway.

.1 : ,

i ':

464 B.N. A. ACT, s. 101.— LORD CAMPBELL'S ACT.

self and 82,000 to lier child ; and
thoroiipon the appcUant moved the
Superior Court in review lor judj^-
inent. 'I'he resjiondents moved in
the same court for (1) a new trial ;
(2) arrest of judgment ; and (.3)
judgment in tlieir favour tioii ob-
stante veredicto. The second and
third of these motions were rested
on a plea, tJien |)ut forward for the
first time bv the respondents, to
the effect that more tlian 12 months
liaving elapsed between the death
of Patrick Flynn and the date of
the injin'ies which are said to hav(>
occasioned it, all right of action com-
petent to him had been extinguish-
ed by prescription ; and that by
law the right of the apjiellant to
recover damages for such bodily
injuries was also extinguished be-
fore his di'iith. The court, as its
decree bears, heard parties upon nil
of these motions, and by a majoiity
of two to one dismissed the respon-
dents' motions, and gianted that of
the appellant, with all costs of suit
not i)revionsly adjudicated U[)on.
On appeal by the respondents, the
Court of Queen's Pencil, consisting
of five judges, unanimously allirm-
ed the judgment of the court below
on all points with costs.

" The case was then carried by
appeal to the Supreme Court of
Canada, who, on the 22nd June
1801, by a majority of four to one,
reversed the decisions of 1 he Queen's
Bench in appeal and of the .Sujjerior
Court in review ; <lismisse<l the a[)-
pellant's motion for judgment ; also
refused and dismi.s.«ed the motions
made by the respondents 'for a
new trial and in arrest of judg-
ment " ; and granted the respon-
dents' motion for judgmeni nan
obstante veredicto, with costs of
action in all three courts.

" On the api)lieation of the ap-
pellant, their Lordships humbly
advised Her Majesty .to grant
special leave to appeal against that
part of the judgment which sus-
tains the new plea raised by the
res[)ondents after the second trial.
In nuiking their recommendation,

tlieir Lordships were inflneneod
b_' tnes'' considerations" :__(n
"The genera] importance to the
province of Quebec of the (niesiidn
arising upon the constructiim of its
Civil Code;" (2) "the great ,lif.
ference of judicial o])inion wliieh it
evoked;" (3) "and tlie fact tlmt
the decision of the majoritN in tl,,.
Supreme Court ai)peai's, from lb
judgment of Mr. Ju.stiee TasciK'-
reau, to have been liased, to soino
extent, upon the authoritv of Ein'.
li.sh decisions." " Their "Lonlsliijis
intimated that they could not heur
a third appeal ui)on a motion loia
new trial involving no (|iic^iion nt'
law ; but that if, in theevent of their
sustaining the ajjpeal allowed, tlicv
would, if the matte: v.-l' new iniil
should ])rove to be still open to tho
res])ondeiits, remit it for decision tn
the Court below."

His Lordship then gave tlio do-
cision of the Board, to tl:c cifnt
that the appellant's claim wii<
founded ow see. 1050 of tlic Civil
Code of Lower Canada, which lii'-
came law in IHOO, and snperswlnl
the provisions of c. 7S. of tlu' ('(ni-
solidated Statutes of the then pm-
vinee of Canaihi (185!)), which tuj.
h.wed the l<]iiglish statute of Oi 10
Vict. e. m. (Lord Campbell's Act),
Sec. lOoG enacts, " In all ciists
wher(> the pevson injured by tlio
commission of an offence or a
quasi-offenee dies in e(>iisei|ucii(v,
without having obtained indeniiiily
oi' sati; faction, his consort and lii'i
ascendant and descendant rclntioib
have a right, luit oidy within a
year after his death, t(> rccimr
from the person who eoinniittiil
the offence or (piasi-offence, or his
rei)reseiitatives, all damages owi-
sioned by sucli death." By <^->.:
22(52 of" the Code, actions U
" bodily injuries " ai'e pr<'sciilieil
by oiU' year, " sa\ ing the sptTial
provisions contained in art. 10511
and cases regulate<l bv spoiial
laws."

Tlie Judicial Committee dcciiW
the appellant's claim was not ImrmI
by her husbmid's claim having p-

E.X.A. ACT, s. 101.— OITIXG FllEXCH LAW.

463

soril)e(l l)y liis outliving the year.
Timt licr claim began to run from
jier liuslwnd's deatii, and her claim
had been made within seven months
of his (lentil. That the terms of
sec. 105() differed substantially from
Lord Canipbell's Act and tiie pro-
vincial statute of 185!). That tiio
Code ignored the representative of
the injured person, and gave a
direct right of action to his widow
mid relatives, a change suggesting
these parti 's are to have an inde-
pendent and not a representative
right. Secondly, that the Code dis-
tinetly specifies certain conditions
nfFccting the right of action coni-
|)etoiit to the deceased, which arc
iilsi) to operate as a bar against any
suit at the instance of his widow,
&v. That these are not ox|)ress( d
in either of the statutes referred to,
iind liy a well-kno vn canon of con-
strnction it is to be taken that tliev
were inserted in the Code for the
purpo.so of making it clear that
iincondilioiis affecting the personal
eliiim of ilie deceiised, other than
those speciticd, are to stand in the
wiiy of the statutory right con-
ferred. The first is that the wi(U)\v,
Ae. shall have a right if death was
due to the olfcnce or quasi-offence ;
{'!) that tlie deceased did not,
during his lifetime, olitain indem-
ility or satisiaction for his injuries.
Keiiding the sees. 105(J and' 22&2
together, it was clear that the de-
ceased's claim in respect of his
hodiiy injuries and tlio (daim of
liiswidow, &c. were to run seimratc
eourses of ])reseription, and that
the widow's claim, which could not
emerge until her husband's death
oeenr.s, was not to be, cither di-
lei'tly or indirectly, affected bv the
provisions of sec." 22()2 ; and" that
preseriptiun of <lie husband's (daim
i^ not, within the meaning of the
<'ode, equivalent to indcmiiitv or
^atisfiictiou, was made (dear hv a
reference to see. 11.58.

"An attempt was made to con-
^tnie the i\»\y. t'ivil ])y the old
t'leneh law of the province. 'l'li(>
Jiulicial Committee did not doubt,

i^ 2.110

that resort must be had to the pre- Robinson v.
exi.sting hiw m all instances where ^anadian
»i ri 1 i ■ • • 1! "acipic kail-

the Code contains provisions ot ^^^

doubtful imjiort, or u.si^s language
■which had previously acquired a
technical inc^aning. JJut an appeal
to earlier law and decisions for the
purpose of interpreting a statutory
code, can only be jxistiHed on some
.special ground.

" The respondent? argued, that in
the event of judgment being against
them upon the question of the
widow's title to sue, the case ought
to be sent back to the S. C. of
Canada in order that they may be
heard upon their motion for a n<'w
trial. Having now the record •
before them, their Lordships are
of opinion that the coiir.se thus
sugg(^ste(l was no longer o[)en.
The judgment appealed frcnn bears,
mfcr alia, ' that the motion by the
appellants (mimely, the jiresent re-
spondents) for a new trial and in
arrest of judgment should be, and
the same were, respectively refused
and dismissed.' As it st-inds, that
was an cxi)ress adjudication upon
the very point wliicdi the respon-
dents desired to have ndieard, and
the S. C. of Canada can have
no jurisdiction to review it. In
order to meet that dilliculty, the
nspoiidents suggc^stcd that the de-
ccrniture was inserted /icr incii-
riain, and that the S. i). might
strike it out upon a motion to correct
their judguKMit." But Lonl Wat-
.son .said : " Without clear grounds
for doing so, their Lordships are
not inclined to protract litigation
ali-eady excessive, considering that
all the judges — seven in number —
wdio heard the motion in the courts
of Quebec Province were of opinion
that the evidence warranted a ver-
dict against tiie respondents; that
one of them only thought the ver-
dict ought to 1)(! disturbed ; and
that, upon the single ground that
the damages awarded were too
large, their Lordships .see no rea-
son to sujipose that the judgment
of the S. C. was incorrectly framed,
or that any injustice will be done

G G

■100

B.N.A. ACT, s. 101.— MUNICIPAL DUTIES.

KoniNSON V,
Canadian
Pacific Eail-

WAY.

!'H

ii?l1;

■\ M

lil

i!:i.

lil!

Corporation
OF Rai.eioh V,

"WlLlAAMS.

HofiOAN V,

ksqi'imai.t am)
Nanaimo Ram.-

WAY Co.

by their finally disposing of the
case at this stajie."

" Their Lordships will therefore
mlvise Her Majesty to discharge
the judgment appealed from ; to
restore the judgment of the. Su-
perior Court in review, dated 31st
Jan. 18H9, and the judgment of
the Q. B. in appeal, dated 19th
June 1890; and to order the re-
spondents to pay to the appellant
her costs of the appeal to the Su-
l)reme Court in the second trial.
The respondents must also pay to
the appellant her costs of this ap-
peal."

In Corporation of Raleigh v.
Wir.r.iAM.s, June 28, 1892, 21 S.
C. R. 103, reversing the Ct. of
App. Ont. and restoring Fergu-
son, J., Williams sued the town-
ship of Raleigh for damages for
injury caused by flooding, caused
by (1) neglect of the municipality,
in breach of (heir statutory duty,
torepnir a drain known as Govern-
ment No. 1 dr.'liM; (2) the negli-
gent construction by the corpora-
tion of another drain, known as
the Bell drain No. 1.

The judge of first in.stance gave
judgment for the j)laintiff, confirm-
ing the findings of fact of the re-
feree and granted a mandamus
On 30 June 18^1, the Court of
Appeal reversed this decision. On
28 June 1892, the Supreme Court,
21 Can. S. <. . R. 103, restored the
order of f!ie judge of first instance,
except af to a mandamus.

1892, 3 Dec. Special leave was
grnnted to ai)peal to Her jNIajesty
on the ground that the appeal in-
volved serious (|ue,stions of ])ubli(!
imi)ortance depending on the true
construction of the Ontario statutes
relating to the powei's and duties of
municipalities.

3 Aug., [1893] A. C. 5 JO; (i3
L. J. P. C. 1; (59 L. T. 500, the
Judicial Committee discharged the
order of the Supreme Court and
lower courts holding that the case
should be ref<>rred back to the
county court judge to determine

the damage caused by the ovcitlow
from Government drain No. 1, on
the ground that the IMunici|iiil Act
R S. O. c. 184, ss. o83, oMJ, .isT^
589, imposes upon every miniici-
pality the duty of preserving jind
repairing drainage works within its
own limits, whether the dniinni'e
work is a work constructed bv the
municipality or a work constriictcd
by the Government before the mnni-
cipality was incorporated; and that
having regard to the purview of tiie
legislature of Ontario in the Muni-
cii)al Act, an action lies at the suit
of any person who can .^liow he
has sustained injury from tiie nou-
performance of this statutory (hitv:
i)utthat it was most reasoniibletiiat
no action should be brought forj*
lUiUKlamusto compel a mimicipalitv
to execute rei)airs until nfter iioliro
in writing has been given to thcni.
Yet sub-see. 2 of see. ')S'^ did imt
take away the right to hring ini
action for damages if no notice was
given.

Secondly, as to the Bell (iniin,tii:it
the action must be dismissed witii-
otit prejudice to any (dnini on tiic
part of the plaintiffs to have the
amount of damage to tiieir pro-
perty determined by arliitration.
For any damage " neeessni-ily ic-
sulting" from the exercise of tln'
.-^tatiiiory powers of tlie mnniui-
pality (sec. 483), and for anv
damage tlone to the plaintiff's pro-
perty " in the consti iictiou of drain-
age works or conS'\,'i,'ie thereon"
(see. 591), the plaiui ill's must seek
their remedy by arbidation, which
was not done here.

In HOGOAN V. ESQUIMAI.T AMI

Nan.aimo Railw.vy Co., April il,
1892, 20 S. C. R. 23-}, alllrniinj;.
Dec. 13, 1890, S. C. B. C. alRrniiii:;
Walkcm,J.,the question wasastotli.'
construction of the Agrienilurd Sit-
tiers Act of British Coluinltia, 17
Vict. c. 14. Ti:e ai)pelhuit elaiimil,
as an actual settler for ngricultiiriil
purposes, that he was entith'dtoJ
right of pre-emption over ei'rtiiiii
lands included in a Government

B.N. A. ACT, 8. 101.

-PUBLIC ROAD CASE.

107

crant for tlie jjiirpose cif the re-
spondent-s' niilwiiy.

1SS)3, . . Special leave granted.

May :\, [1891] A. C. 429; 63
L. J. P. C. 97 ; 70 L T, 888.
Jiulguicnt appealed from affirmed
with costs.

In Un'iox Bank of Canada v.
O'fiAUA, 22 S. C. R. 101, 20 Nov.
189.3, the point was whether evi-
(Ipnceof the contract was admissible.
The nction was brought by tlie
Bank ngainst O'Gara as endorser of
promissory notes.

I8i)J, lo March. Special leave
allowed. 22 Can. Gaz. 567.

8 Dec. 189 1. Compromised, and
appeal disuiisst'd.

In Cas(;rai\ v. Axr-AXTic and
Xokth-Westeun Railway Co.,
appeal from a decree of the Q. B.
Quebec, 2.3 Dec. 1892, which re-
versed a decree of the Sup. C,
Jlav 16, 1891, the allegation
was that the railway comi)any had
violated the provisions of their Act
in stopping up a lane called Blache
Lane, city of Montreal. A ques-
tion WHS, whether the Attonioy-
(ieneral of Quebec had power
to discontinue the action : also,
whether the lane was a public lane.

1891, 23 Can. Uaz. 202. Appeal
allowed.

Feb. 9, [189.J] A. C. 282, 72
h. T. 309. Judgment of the court
below varied as to costs ; Otherwise
iillinned. AjJiielhints to pay the
costs of the ai)i)eal.

Att.-Gex. of Ontario v. Att.-
fifx, OF Dominion and Distil-

IKRS' AXn BliKWERs' ASSOCIATION,

^IS. C. 11. 170. On special re-
ference to the Supreme Court by
the Governor in Council In re the
validity of Ontario Liquor Prohibi-
tion Enactment.

1895, 10 ;Mav. Special leave
fininted. Secante,p. 102, audposf,
Appendix ('.

Ill ToitoNTo Bank Co. t-. The
Qlken, the question concerned a
'liity on steel rails.

1895, 20 July,
was granted.

Special leave

TTnion Bank op

Maclean v. Stewart (Smith Maclean
niis-en-cause) was an appeal from ''"*^^^'**'''-
S. C. 26June 1895, in which Pour-
nier, King, Sedgewick, JJ., Sir
Henry Strong, C.J., and Tasche
rean, J., dissenting, reversed the Canada v.
judgment of the Q. B. Quebec (.Sir O'Oaua.
A. Lacoste and four judges) and the
judgment of the Sup. Court (.letto),
which latter judgments condemned
the defendant Maclean to pay
Stewart 810,261 in the following
circumstances : —

The petitioner Stewart, Macle.-in,
and Smith were partners in a com-
mercial firm at Montreal. Under
the articles of partnership each C\s(in\iN v
partner was entitled to tli(> interest Atlantic a.nu
on his ca|»ital at the rate of 7 per Noinii-
cent. IMaelean's cai)ital was ^Vkstkrn
.M,180, Stewart's .S25,292, and I^ailwav Co.
Smith's .'?30,350. There was a
clause giving power to Maclean to
withdraw .SO.OOO anuiiallv, and
Stewart and Smith 83,000. The
term of partnership was five years.
At the end of U years the three
partners abandoned the property to
the creditors of the coin|)any. To
Stewart's credit there was 817,185,
to Smith's credit §27,329, iind
Maclean's account .showeil a del)it
of 829,079. Maclean made an
oflEer to the creditors to purchase
the estate and assets of the firm by
paying the privileged creditors and
the insolvency expenses in full, and
tlie ordinary creditors at the rate
of 50 cents in the dollar (10s. in Att.-Gkn op
the pound), on the condition that Ontario v.
the assets were transferred to him •^tt.-Gkn. op

1, 1 il 1 J- 1 i)0.«INION AND

personally, anil that a (Ii.seharge, Dig,,,, ,g„j,-
should be given to him Stewart, ^nd Hukwkrs'
and Smith. The creditors accepted Assocmtion.
the offer and executecl a discharge.
Neither Stewart noi- Smith were
parties to the negotiations or con-
veyance from the creditors' curator
to Mmdean, but they knew Macdeai-
had made the offer. Subsequently
the petitioner Stewart sued Maclean
for his overdraft, 829 O^O. Jette, Qp,.;,;,'
J., held that the drawings made by

GO 2

Toronto ISank
Co. I'. Tub

i ll

I 'j\

468 B.N. A. ACT, s. 101.— TRUSTEE AND COSTS.

Maclean v.
Stewabt.

'i i

51)

)•]' '

;»: H

I !

Venkata
Narasimiia
Appa Row v.
The Court of
■\Vards.

Maclean and the other partners
were advances properly debited to
each partner's capital account, and
that, apart from the right of the
creditors, they were entitled to an
adjustment of account inter se.
He also held that Stewart, by the
abandoinneut to creditors, did not
divest himself of all rights which
were personal to him to call upon
his partners to equalise the loss
between them. The entire capital
being lost, Jette, J., decreed
Maclean to pay one half, and
Stewart and Smith one quarter,
which woiked out that Stewart
should be paid 810,201 by Maclean.
1805, August 5. [Present,
Lord Watson, Lord Davey, and
Sir R. Couch.] Specitd leave to ap-
peal was allowed, after hearing the
petitioner and respondent.

Finality of Decisions of the
Judicial Committee.

When a decision of the Judicial
Committee has been I'epor^ed to
the Queen, and embodied in an
Order of Council, it becomes a de-
cree or order of iha iinul Court
of Aj)pcal ; and it is the duty
of every suborilinate tribunal to
whom the order is addressed to
carrv it into execution. See Pitts
1'. La Fontaine, Nov. 20, 1880,
G App. Cas. 482 ; 50 L. J. P. C. 8 ;
43 L. T. 510. 'J'his was a case in
which the respondent Fontaine,
trustee in liquiilation of the affairs
of Morton & Co., contended he was
not liable for costs beyond the
assets in his liands. He was di-
rected to ])ay the costs by an order
of the Judicial Commiltee, 19 May
1880, 5 App. Cas. 50 1. The order
was, " That the respondent shouhl
pay the appellant Pitts and his
wife all such costs as were incurred
by him or his wife in the consular
courts of and incidental to the
orders under ap[]eal, and the costs
of opposing the rules on which
Buch orders were made, &c., and
the respondent is likewise to pay the
appellant the sum of £411 2*. 4</.
for the costs of this appeal."

The respondent contended Iip
was a trustee, and under 20 section
Bankruptcy Act, 18G0, he \\a.s ab-
solved from personal lial)illtv. He
further said he refused to act intiic
liquidation without the sanction of
the court, which .sanction the for-
mer judge of the consular comt
gave. The consular judge (mlcriMl
the amount of the Morton assets
to be paid towards the eost.s. Tiicv
were about half the costs.

Nov. 20, 1880. Sir .Iam,,s
Colvile said [there being also
present Sir M. E. Smith uiul ,Sii'
R. Collier] .—

"This is an application for a
peremptory order on the Consular
Court at Constantinople to carrv
into execution the Order in Council
of 19 :May 1880, . . . When
a decision of this Board lias liccii
reported to Her Majestx, and luis
been .sanctioned and embodicrliniin
Order of Counttil, it becomes tlie
decree or order of the liiial Court
of Appeal — the House of Lords,
which was brought into the discus-
sion, having no jiu'isdiction wlw'-
ever in the subject-matter of it—
and that it is the duty of cverv
subordinate tribunal to whom the
order is addressed to carry it iiiti)
execution." His Lordship then
said : " In a case where a trustir
makes an application, the success
of which is doubtfid, lie ou;:lit,
before making it, to get from llie
creditors an indemnity against llie
costs, if he knows there are no
assets out of which they cnn lie
j)aid." Peremptory order that this
and previous order be stridlv
ob(!yed.

In Vexk.\ta Narasimiia \n\
Row r, Tjik Court oi' Waiiii«,
July 17, 1880, 11 App. Cas, (lim,
the petition a.sked for the rcliearini:
of the judgment of the Boiinl in
two ap])eals, which were tinail\ ap-
proved by Her Majesty in Council
in the year 1883, He conteudi'il
he had found new matter, wliiih
would, if it had been jjioducfd in
these appeals, have affected the

BXA. ACT, s. 101.— PUBLIC MISCHIEF OF KEVIEW. 469

jiiilgiiicnt of the Board. Lord
Watson [tlicre being nlso present
Lord Holtliouse, Sir B. Peacock,
ami Sir K. Couch], in refusing
leave, said : " It is not said that
there was any error in framing the
iiidgmpnt of this Board, or that it
ilirt not fully and accurately express
what the Board intended to docide.
Then it was reported to Her
Majesty, and was confirmed by
ivi'iilai' Orders in Council, dated
l^May 1882 and 19 Jidy 1883.
Xo antliority has been cited to
their Lordships which can warrant
them in granting a rehearing
under such circumstances as these."
His Lordship cited Hebbert v.
Puitlias, 26 Ai)ril 1871, 3 L. II.
P. C. p. 071 ; 7 Moo. P. C. N. S.
[I. 561, where a litigant alleged,
Move report and approval, that he
had been disabled by want of means
from appearing and maintaining
' is cause. Lord Ilatherley, L.C.
[theiv being present also Lord
nielmsford, Lord Westbury, Lord
Cairns, Sir .1. Colvile, and the
Arehbishop of York and Bishop of
Lnndon], said : " Having carefully
weiglied the arguments, and con-
sidering the great public mischief
whieii would arise on any doubt
being thrown on the finality of the
deeisions of the Judicial Commit-
tee, their Lordships are of opinion
that expediency requires that the
prayer of the petitions should not
lie aeeeded to, and that they should
lie refused with costs."

The following cases bear on the
exercise of the prerogative in grant-
ing special leave. tSee also ante,
p. 419] :—

Mathews v. Warner, Nov. 22,
1798, 4 Yesey 186, 5 Vesey 23,
wasn petition to the King in Coun-
cil for a commission of review of a
decision of the Court of Delegates
[Sir F. Bnllei', Sir B. Hotham,
Heath, J., Dr. Swabey, Dr. Coote,
and Dr. Parson] on the construc-
tion of ft will, and in usmd course,
liy Order in Council, 31 Oct. 1798,
the petition was referred to Lord

Loughborough, L.C, to report his Mathews v.
opinion thereon. The Lord Chan- Warner.
cellor said : " It has been truly
stated in argument that this appli-
cation is by no means a matter of
course. It is ia the discretion of
the Crown, upon grounds of sound
discretion, to grant a commission of
review; and, though I state it,
as not being at all a matter of
course to grant it. I can by no
means admit what was stated by
the King's advocate," namely, that
Lord Camden had said this prero-
gative was not to be countenanced.
If the note was accurate, it must be
taken Lord Camden was only re-
ferring to frequent trials upon
questions of Prize. As to criminal
appeals, his Lordship said : " It is
in the discretion of the Crown to
grant it or not. ... In criminal
cases the officer of the Crown must
interfere to prevent a writ of error
being sued out merely to evade
execution of the judgment ; but if
distinct matter of error can be
pointed out, in my observation and
practice the Attorney-General has
thought himself not at liberty to re-
fuse it ; if there is an appearance of
right ; if it is an arguable case ; he
does not prevent it, but permits it
to be argued."

" It is not merely perhaps an
opinion that the judgment is erro-
neous that would induce me to
report that the commission ought
to issue, where a grave inquiry has
been carried on, and a very respect-
able court of delegates have affirmed
the sentence, though I must doubt
it. I agree, there ought to be cir-
cumstances to make the question
of some importance. Here the
value may be more or less. Upon
one side it is stated as high as
£20,000; on the other side it is
represented as not exceeding£5,000.
But the point to be argued is really
a very material one, and the cir-
cumstance, that biasses my judg-
ment, is this : I cannot take upon
me to say, whether, according to
the course in the Court of Probate,
there are not authorities that would

ijlli!!

f j

1';

■t

.!■!

:■; I

matiiew8 v.
Wamneh.

!i|^!;l

:i .■ !

GoomviN V.
O1BSI.EI1.

i'i r:i

470 B.N^.A. ACT, s. 101.— OLD CASES OF REVIEW.,

. i;

vorv ahundiiiitly support tlie dcei-
sioii ; but it' so, 1 wisli to have
that point fiil!y aseertaint'd by a
sc'coud iiKpiiry directcil to that
precise point, because ii' such a
thinff ns this is to be proved as
a will, it calls loudly for the legis-
lature to make some regulation
as to the disposition of personal
proi)erty, so as that there should
be sometiiir.'g of solemnity, certain-
ty anil precision, in order to give
away that property, and defeat the
natural rights of the relations."
His Lorilship certified that "the
points of law which arise on the
proceedings appear " " to be so im-
portant to the publi.', that it is lit
that they should he heard and de-
termined in the most solemn man-
ner." Nov. 20, 1799, 5 Vesey
13, a conmiission of review was
held [present, Bishop of London,
Lord Kenyon, Macdonald, C.B.,
Su- W. Scott, J, of Adm. Ct.,
llcf' and Lawrence, J J., Dr.
Auu 10, and Dr. liobinson], and
revcriivui.

GOOUWIN V. GlESLER, Dcc. lo,
1794, Eidg. L. and Sch. Ir. Eep.
371. A case in Ireland which
came before the Lord Chancellor of
Ireland and Lord Fitzgibbon to
encpiire and report whether there
was suUicieut ground to review the
sentence of the Prerogative Court.
The question in dispute was the
impeachment of the will of J. Good-
win. The judge of the Preroga-
tive Court pronounced for the will.
The petitioner appealed to a com-
mis.sion issued under the great iseal
in the ordinary course to the judges
delegates. On 2G Jan. 1792 a ma-
jority of the judges delegates as-
sembled and refusetl time, even
until the next morning, to the peti-
tioner's advocate to prepare the
case, whereujion he left the court.
The delegates called for the deposi-
tions of the subscribing witnesses
to the will, which were read, and
without further examination they
ttjfirmed the sentence of the Pre-
rogative Court.

Lord Fitzgibbon, L.C. (nfter-
warils Earl of Clare), said : " So
far from attending to tiie ninxim
laid .own in 1 Oughton 173 (tit,
Ordo. Judieiorum, 3;{2), thev (thu
judges delegates) seem to iuive
pronounced their sentence of af-
tirmance de eo quod non cog-
noverunt et quod cofjtwsccrc non
possunt, for they proceeded to
allirm the sentence, not only with-
out affording the aggrieved party
an opportunity of being heard, bit
without an examination of the
transmiss, upon which alone such
a sentence ought to have been
founded. There is no doul)t, that
where a sentence of the Ecclesi-
astical Court has been soleiiiulv
aiiirnied by judges delegates, aud a
petition is preferred to the Crown
for a commission of review, the case
ought to receive a very serious anil
deliberate consideration to warrant
a rej)ort to His Majesty that such a
conmiission ought to issue. In such
a case, I should never hold myself
authorized humbly to advise His
INIajesty to interpose, merely be-
cause I might (lilfer in opinion
with the judges delegates upon the
proof made in the cause." His
Lordship then stated the facts,
and said : " The judges delegates
should have granted the adjourn-
ment. But if they were determined
to dispose of the appeal witliout
hearing the appellant in support of
it, surely it was their bounden diitv
minutely to have examined the
whole transmiss," and, above ail,
the evidence of a particular witnets
which decided the cause, before tliey
ventured to pronounce a sentence
of aflirniance, which must bind the
right of the parties irrevocably, un-
less His Majesty should be pleaseil
to interpose. He then stiid it was
his duty to submit his opinion 10
His Majesty that there would be
a failure of justice unless a com-
mission to review should issue.

But see hi re Ames, 14 May
1841, 3 Moo. P. C. 409, where
the special leave was obtained
ex parte in the absence of tlif

■ it

B.N.A. ACT, s. 101.— KEHEAHING BY P. C

471

nnp.'llants. And the case where
the rijibts of infants were in ques-
tion, IJiiiundernnrain Rae v. Bijai
Goviiul Sing, 29 Nov. 1836, 1 Moo.
P. C. 117. In that case, in the
report of which all the early cases
on this subject, both in the Privy
Council and Hou.se of Lords [see
(ihove, Mathews v. Warner, 22 Nov.
1798, 4 Vesey, 186 ; 5 Vesey, 23],
are given, Lord Brougham .said
[tiiere being also present Baron
Parke, Bosanquet, J., T. Erskino,
C.J, in Bankruptcy, Sir E. H.
East, and Sir A. Johnson] : " This
was a petition to rehear the cau.se
\ipon whicii their Lordships had
jliveu tlieir judgment on the 16th
April 1834, after an order of the
29th July 1833, calling on the ap-
jidlantsi to delivor printed cases in
a fortnight, otherwise their Lord-
ships would proceed to hear the
cause e.i' parte ; no cases were de-
liveied, and the cause came on ac-
cordingly. The appellant not ap-
pearing, an order was made in wluit
was luulerstood to have been the
usual form in the Privy Council in
."uch cases ; it was, that after hear-
ing counsf'l for the respondent, and
no one appearing for the appellant,
the decree appealed from be ailirm-
ed, and the ai)])eal dismis.sed with
costs. This order was confirmed ;
that is to say, the report of their
Lordships was adopted, and made
an order of the King in Council.

" Theground of the present appli-
cation is, that there has been no
hearing, but that the affirmance
was pronounced merely on the ap-
pellant making default. This, it is
contended, entitles their Lordships
to amend the order, and advise His
JIajcsty to revoke the confirming
order; and if the power to do so
exists, the appellant then contends
that it ought to be exerted in this
instance, inasunich as he makes out
a strong case for the indulgence of
the Court. The parties were in-
fants under the Court of Wards in
Calcutta, and appeared by a public
fiinftionary, through the appoint-
"'-^nt of that court, as their guar-

dian ad litem. Tin's person neg-
lected the case altogether, and
not only did not provide funds for
carrying it on, but absconded with
funds in his hands whi(di had been
allowed for the expense of the
suit, anil he was not to be found
when the agent here desired to
communicate with him ; nor has he
since returned. Although some
delay occurred in pro.secnting the
appejil during the lifetime of the
party — the father of the infants,
who had commenced the ai)i)eal —
it is clear that the infants had been
substituted in his room, and steps
had been taken which waived any
objection on the ground of his
laches ; and whether this was
waived by the respondent or by
the court, is immaterial for the
present purpose. The case for in-
dulgence is, therefore, a strong one,
provided there is the power to grant
this application.

" It is uuipiestionably the .strict
rule, and ought to be distinctly
understood as such, that no cau.se in
this court can be reheard, and that
an order once made, that is, a re-
port submitted to His Majesty and
adopted by being made an Order
in Council, is final, and cannot be
altered. The same is the case of
judgments of the House of Lords
. . the only other supreme tribunal
in this country. Whatever, there-
fore, has been really determined
in these courts must stand, there
being no power of rehearing for
the purpose of changing the judg-
ment pronounced. Nevertheless,
if by misprision in embodying the
judgments, errors have lK!en intro-
duced, these courts pos.sess, by
common law, the same power which
the Courts of llecord and Statute
have of rectifying mistakes which
have crept in. The Courts of Equity
may correct the decrees made while
they are in minutes ; when they are
complete they can only vary them
by rehearing, and when they are
signed and enrolled they can no
longer be reheard, but they must
be altered, if at all, by appeal. The

Rajcndkb-

XAKAIN Uak v.
Hum Govinu
Sjno.

I: ill

ill
pi

I: h

: .i

ill

m III n jf

' a

til

Rajcndeh-

NARAIN UaK r,
BiJAI GOVIND

SlNU.

CCURY r.
CUUUY.

'§

domoc/ in v.
Lanutbey.

Hebbebt V,

PVRCIIAS.

472 B.N. A, AC^r, s. 101.— IF OKDKR DRAWN UP.

courts of law, ai'tor the term in
wliicli the jii(ljj;iiii'nts ari' fiivi'ii,
(•nil only alter tlicni so as to corrci't
misprisions, a power yiven ]>y the
stjitntesol' amendment. The House
of Lords exereise.s a similar power
of rectifyin}^ mislakes made in draw-
ing up its own jnd;j;nients, ami tiiis
court must jh>hsoss the .same autho-
rity." After (.itiiif; the eases in the
House of liortls, liis Lordship con-
tinued : " It is impossible to doubt
that the indulgence extended in
such cases is mainly owing to the
natural desire prevailing to prevent
irremediable injustice being tlone
by a court of last resort, where by
some accident, without any blame,
tjie party has not been heard, and
au order lias been inadvertently
made ns if the ]iarty had been
heard.". His Lordship then .'aid
the appellant not appearing the
judgment should liave been (lis
niissid [sec Lord Clare, L.C., in
Goodwin r. Uie.sler, I7!)4, Ridg.
L. and Sch. Rep. p. 381], for
if in the courts of last resort judg-
ment of atlirmaiice be pronounced,
" the matter is iiiial, and that judg-
ment stands as a pivcedent in what-
ever points were raised in the case."
And although in this ca.se the ob-
jectional form iini)uting ailirniance
•was followed, yet in the circum-
stances their Lordshii)s advised the
appeal being restored, amending
the order of the 16th April 1834
to that effect.

In Hebbert v. Pukchas,
20 April 1871, 3 L. R. P. C. GCl,
p. 671 {see above), petitions were
specially referred to the Privy
Council, on the averment of the
petitioner that in a former hearing
of his ease by the Privy Council,
the judgment had been given ex
parte by reason of his want of
IMicuniary means, and the decision
was at variance with foriner deci-
sionsof the Committee. Their Lord-
ships declined to hear the petition.

See also eu parte Kisto Nauth
Boy, Feb. 2, 1869, 2 L. K. P. C.

271. There the agents of the n-
spondent neglc(;ted to appeiir.aml
the appeal c.v parte was reversed.
On the respondent petitioning for h
rehearing, the .Judicial Ci)iiunittcc
refu.sed, after the Order in ('(mncil
had been drawn up, to relunr ihe
appi'al.

Refused in such cases as the
following ; —

CuBHY V. CuuuY, in S. C. 13
IMarch 1880, Cassels' Digest, 77s.
The Ct. of Appeal, Ontario, 1 0. A,
R. ()3, held, aflirining Spraggc,("|i.|
2() CJ rant 1 8, that money reeeiviid for
.sale of land was received for the
joint benelit of two brothers. The
S. C. were equally divided.

1880, June 18. Special Itwe
refused.

Special leave refused in DuMoi:-
i,iN I". Langtuey, S. C. Nov. 8,
1880, 13 S. C. R. 2oH, nppeai
brought per Saltnm under S. ('.
A. A., 187S), s. 0, to the S. C. Ironi
judgment of Chancery l)iv,, On.
tario, 19 Dec., 7 O. R. ■»!)!), (ill,
1884, which the S. C. aflirined [Sir
W. Ritchie, C.l., Fournier, Ilcniy,
Tascliereau, and Gwyniie. J.I.].

An action was brought hv Laiif;-
trey and others against Duinoiilin,
the incumbent of the rectorv u/
St. James in the city of Toronto,
to have certain lands deeLircd to
bo held by him not only for him-
self, but for the benelit of the
other rectories in the city of To-
ronto. Ferguson, J. decided in
favour of the claim, which decision
was aflirined by the Chancery Di-
vision. An ai)peal was taken in the
name of the defendant, but in the
interest of the vestry, parishioner.'!,
and churchwardens of St. James'
Church, who, as the rector de-
clined instituting on his own \x-
half an appeal from the judgment,
obtJiined an order from the S. C.
enabling them to apjieal in the
name of the rector upon tlieir iu-
deninifying him against ail costs.
The claim of the vestry and ehiiich-
wardens was, that they and the
parishioners of the said rectory are

U.N.A. ACT, K 101.— REVIEW OF NINE .IliDfJES. 173

the f «(•/"" que hustciit of the lands
iiu'iitupiii'il in llic plaintiff's stute-
inont of claini, iind that the rci'tor of
St. JaiiU'S iiolds till' same nicroly as
a triistt'f to their use, and that,
thficforc, the lands in rcsjifct of
wliitli llif suit has been instituted
do iKit I'oiiie within tiio ()[)erution of
the statutes, chap. 10., ns amended
livciiap. 17. of tile statutes of tiie hUe
piovime of Canada, [jassed in the
M<sion 129 it .SO Viet., and the two
Act.s :{9 Viet. (Out.) c. UIS). and
11 Vict. (Out.) e. GO. The S. C.
luld tiint tiiey were rectory lands
1111(1 were iield hy the reetor of the
climvli of St. James as a coriiorn-
U)\\ sole for liisown use, and not in
trll^tforthe vestry and eliurehwar-
deus or parishioners of the rectory,
1111(1 such vestry and clnu'cliwardens
iiad tlierefore no locus utaniU in
curia in respect of the suid lands.

1H87, June 1 8. Lord Watson, in
ivfiisiiij; leave [there bein<j al.so
]irwnt Lord Fitzgerald, Loril Ilob-
lioiisc, Sir llarnes Peacock, and Sir
){. C'oiicii], said : " In dis[)osing of
this jietition their Lord-ships do not
tliiiik it necessary to raise any
(luestioii regiu'ding the interest and
rii;lit of the ])etitioners to insist in
the action. They will assume the
|ii'titioucrs iiave a locus sfautli, and
that tile point was rightly decided by
tiif judges of the Supreme Court of
C'liiiada. Tlie questions of law in-
volved in the ca.se are, no doubt,
of considerahle importance to liti-
gants who are represented at the
'•ill-, and are calculated to attract
tilt' attention of the public. At
tlic same time, their Lordships can-
not regard tliese questions as being
of general importance in the strict
"lid proper sen.se of that term ; their
lietermination one way or another
will not affect other interests than
lliose of the parties to the action.
h will not lie decisive of any
fieneml principle of law. In these
ciiMiuistanees the question which
llit'ii- Lordships have to consider is
tins : Whether the case is in itself
of such importance, or of such
""'i''}', as to require that this

McIiEon r.
New BRl'^s-
wicK Rail-
way Co.

Board, in the interests of justice, Dumodi.in v.
should review the luianimous deter- Lasotrey.
mi nation of'nine judges of the Caiui-
diaii eouits. The petitioners fhein-
selves resorted per Salt um tot lie S.C
of Appeal in Canada, and according-
ly their Lordshiiis must deal with
the petition on thi^ footing that they
have exhausted tiie courts of that
country. The case has been de-
cided carefidly, after full hearing,
liy nine judges, fivt^ of them mein-
l)ers of the S. C. of Canada; and in
these circumstances their Lordshijts
do not think they woidd be wa:-
ranted mider the provisions of the
Act of lH7iJ [institution of Supreme
Court Act] in recognising this as a
proper ca.se for the exercise of Her
Majesty's prerogative." Petition
dismissed with costs. [JScc judg-
ment in V. V. Printed Papers,
Lincoln's Inn Library.]

McLeoi), a.ssignee of Jewett &
Co., t.Nkw IJuu.NswicK Kaii.way
Co., Feb. 3, 1880, 5 S. C. K. 281.
The court was etiually divided, and
S. C. N, B. was aflirnied. A ques
tion of construction of an agree-
ment, and as to the property in
timber. Kef used 18 June 1880
[Sir J. Colvile, Sir B. Peacock, Sir
M. E. Smith, and Sir llobert
Collier present].

Cni'.VKiKU V. The Qlee.n, March CiiEVRiEn v.
1, 1880, 4 S. C. K. 1. The plain- The Queen.
tiff claimed against the Crown to
be entitled to work.s, booms, and
canals known as the Gatinenu
Works, and claimed 3200,000 for
rent and prolits.

The Crown pleaded prescription.
The action was raised by petition
of right. J. T. Taschere'ui, J., dis-
missed the petition. The S. C.
[Ritchie, C.J., H. E. Taschereau
and Gwynne, JJ., Fournier and
Henry, JJ., dissenting] held that
Ixifore, and under, the Code, art.
2211, the Crown couhl invoke
prescription. And had in this
case purcba.sed the land, &c.,
in good faith, and acquired an un-
impeachable title by ten years'
peacefid possession.

;(■':■!

"(^;;i

rHnrmio v.
Tub Qubkn.

KCSSBLL V,
LbFBAMC'018,

molleur v,
Lamodbbux.

Smith v.

GOLDIB.

47 1

U.N.A. ACT. s 101.— HANK llUPTCn' CASK.

1H81, MiurhH. Sir Harm-H Poa-
cock, Sir M. E. Siuitli, Sir R.
('oilier, mid Sir II. Condi refused
si)eeiul Icuve.

IlussEM, V. Lekbancois, Jan. 11,
18H3, 8 S. C. R. 335. Fournier,
lleniy, Taschereau, and Owynne,
J J., Ritchie, C.J., and Strong, J.,
dissenting, reversed Q. U. (Jiiehec,
wliieli iiad affirmed the Sii|». Ct
The question was wlietiier the
testator was insane at tlieexeenlion
of his will ; and (2) if the will was
obtained by undue influence of a
jierson he thought to be iiis lawful
wife. The Sup. Ct., Mere(hth, J.,
held the will valid.

1883, Marcii IS). Sjiccial Iciivo
rei'iise-d.

MoLi.EUU r Lamoitrku.x, 8lh
March 1 880,Cassels' Dig. ( 1 8!i3) ,71.
The (juestion was whether Molleur
was acting as the nominee or
locum tenens of the Bank of St.
John's. Lamoiireu.K compounded
with his creditors for the sum of
25 cants in the dollar or 5s. in the
pound. The defendants, the Bank
of St. John's, were placed among
the unsecured creditors for .'?23, 131,
the composition on which would l)e
$5,857. 8U. Tiie phiintitf entered
into negotiations with Molleur to
obtain the amount of the comi)osi-
tion to his creditors, a sum of
824,173.63, the result bei^igadeed,
16 May 1876, between these two
and the assignee, which recited the
plaintiff had received from Mollem-
S2o,251.55 for the purpose of pay-
ing the composition to his creditors
and for securing repayment of this
sum, together with a bonus of
S4,000, as one of the considerations
for the said advance. The plaintiff
requested the assignee to assign to
Molleur all the plaintiff's jiroperty.
Molleur dealt with the property of
the plaintiff until 1879, when the
plaintiff raised this action, contend-
ing Molleur was the nominee of the
bank, and had paid the bank in full
instead of only a composition, and
had so improiierly managed the

estate as to cause piiiinllir n ,.,„|.
siderabie loss.

20 Jan. 1883. Sup. Cl.,('lia;r„„n^
J., held .Molleur Wiis [Uv ,7„.„,J
fc iriis of the bank, and ilmt i,,,
should render a swoni iiccinii t
which he did, claiiuiug n ImliuKv
still due of 83,814.18; ilmt Mo|.
leur was justified in piiyinij ti,,.
bank tlie amount of the "iKitt's lor
which Ihey held tlie endui.si.nit.nt
of L'Kcuver Ohe easliicr of the
bank), there being no evidcnpothat
the hypothec held by L'KciiyiM'wns
not a bond fide security, dl" wiij,.!,
the bank had a riglit to the l«'ii|.|i|.
that the bank was justitied in rctiiju!
ing the bank shares tlie |)ni|)i.nv
of the plaintiff to be applied m tW
balance of its claim ; that tiu' lunk
was entitled to 825,251.5.'). toi^Hlicr
with the bonus of 8 1,0(10, iimi in.
terest on all the aniounts dnc ex-
cept the bonus, and oidiTed im
inquiry.

The Q. B. reversed tlie finding
that Molleur was the Inciim lemu
of the bank, and disallowed in-
terest.

TheS. C. of Canada anirmcd tlip
judgment of Ciiagiion, J,, i;, the
Sup. Ct. with variations.

1886, Nov. 13. Leave to appeal
refused by the Judicial Conimittee.

Smith v Goldie, Jinic Iflih
1883, 9 S. C. R. 16, reversing
7 O. A. R. 628. The question is
thus described by Ritchie, C. J.;
" This is a very importmit ease.
The main and subst^mtiiil question
raised, and on which the ease m?
decided in the court below, mis
whether the machine wds a patent-
able machine ; and tiie learn«l
judges of the Court of A|)peal held
that the combination, thougli ad-
mittedly producing a u.seful result,
was nevertheless not patentable in
law. After a careful consideration
of the evidence, I have iiirived at
the conclusion that this uineliine
was a new combination of old
machinery or instruments, wherebv
a new and useful result was ob-
biined, by which a new effect ww

H.N.A. A(rr, s. liH.— AGRKKMKNT VXHK.

175

nmdiipoil) wliic'Ii is stiitGd to Imvo
ivvdliitioni-ii'il till- iiiiimifiiftiiro of a
I'lTtiiiii (Irscription ol" flour pro-
ducing« Miit'Tiiilly Ix'ttcu" articlf!,
iiiiiltlici'i'lDi'', I fliiiik, it. is the .sill).
jeL'tot'ii (Kitt'iit. I think, win le th«
piUi'iit is a coinl)i nation, tin; coni-
hiiiation itst'lf is tlie novelty and
ui«o tlif ini'rit, and this view is, in
iiiv opinion, abundantly supported
hvtiii' iollowinj; authorities." [Hi.s
LDiilsiiip n';id the well-known au-
liiiiiitii's on this head.]

ISSI, March 4. Sp;'i'ial h'ave
rt'l'iisi'd.

MOKK.VTT V. MkRI'II.VXTs' B.VNK

OF (".VNAPA, Jan. 12, 1SS5, 11
S. C. H. t<>, Htiiruiinf? [Gwynne, J.,
(lissi'iitiiif:;] I lie t'h. D. Ontario [Fer-
(.'iison, J.J, 5 0. 11. 122. LiNvvc to
iiplK'al direct to the S. 0. was given
iiiidci' see. (5, 8up. Ct. Amendment
Aft, IH"!), 12 V^ict., on the ground
tiiat till' Ct. of App. woidd be bonud
liv tile case of Cameron v. Kerr,
3 0. A. U. .'}t). Ferguson, J., gives
tlic faiLs thus: Tlie bank held the
t'oininert'iid [)ap('r of the firm Lew'i
Motfatt i'or advances. The firm
njipiii'il for further advances for a
liuiitcd period, and it was agreed
s\k\\ additional advances should be
made upon the bank receiving
security for the indebtedness of the
linn, which was 8153,011, A
mortgage on land and premises
was executed by the firm. On the
same day an agreement was exe-
euted betWeou Lewis Moffatt, K. M.
Moifatt, and George Moffatt, the
defender of the 1, 2, and 3 pai-ts
resi)ectively, and the bank. This
recited the iuilebtediiess of the firm,
and tlie throats to clo.se the ac-
count unless the bank received
further secuiity. This agreement
contained a covenant by whi(.'h the
parties of the 1, 2, 3 parts declared
tiieniselves jointly and severally in-
debted to the l)ank in the sum of
•'^10,000, to be well and truly paid
nitbin uiue months as secured by a
money bond of exen date. The
firmwns declared insolvent 12 Aug.
11^75, nnd the bank declared there
Was u deficiency in the property

mortgaged to the extent of 850,00
and that they were bound to bo
paid the 810,001) by the defendant
George Molfatt. Tlu; defendant
alleged he was induced to sign on
misrepresentation made to him by
one of his co-obligors, that it was
to secure the hank against any loss
which might arise by reason of the
bunk nd'raining from tin; rcigistra-
tion of the mortgage, or by reason
of any over valuation oftheprop'rty
embraced in it. 'I'he S. C. [(hvynne,
J., dissenting] held the defendant
bound by the bond.

18H5, .Vov. 1 1. [LordMonkswell,
Lord Hobhoust^, Sir Barnes Pea-
cock, and Sir 11. Conch.] Special
leave to appeal refused, on thegronnd
that the appeal involved only the
qu' lion of the construction of
an agreement between the parties,
and was not of sulHeient public
interest or importance to warrant
leave.

Grand Trunk Railway v.

Beckett. Special leave refused.
[See ante, p. '111.]

Montreal Passenger Rail-
way Co. V. Parker, 22 June
1885, S. C, Ca,ssels' Dig. (1893)
731. Claim for damages for in-
juries incurred by being thrown
out of a waggon crossing a railway
track. Plaintiff alleged faulty con-
struction of the track.

Sup. Ct. [Torrance, .T.], found
that the track was in bad order,
and gave S2,oOO damages. The
Q. B. Quebec reversed that find-
ing. The S. C. reversed the Q. B.
Quebec, Strong, J., dissenting.

In the Privy Council, it was
urged that the question involved a
question of law of importance,
namely, whether the bye-laws of
the city of Montreal making the
railway company liable for damage,
however caused, were valid. This
construction was upheld by the judge
of first instance. The intermediate
court and the S. C. decideil the
matter, not on the law, but on the
question of negligence in allowing
the track to be in a faulty condition.

MOPFATT V.

MuRCH ants'
Dank of
Canada.

Grand Trunk
Railwat v.
Beckett.

montrkat.

FASBENaRR

Railway Co,
V, Parker,

l'7fl UNA. ACT, s. lol— niOWNS llUiUT OF AIM'

■ I

I i

MnSTKRAf,
Pabbknukr
Ram-wav Co.
Parken.

Att.-(}rn. oi-
Nova Scotia
t'. CiKiidonv.

I '1

1HH5, II Nov. [LonlMonkswi'II,
liurd l[()l)li()iisi', Sir Hiirncs I'oii-
■ cork, 1111(1 Sir H. Coiicli. j Spt'cml
It'iivc to a]>|>(Ml rt'l'iiscil l»v the Jii-
(liciiil roiniuiltt'i>, it ii|)|itMriii<; tliiit
the qiiostioii liiid bi'cii (Iwidcd on
II piiif (iiicstioii of t'lU't.

Att.-Gen. of Nova Schiia c.
OuKLioitv, t'liMsels' Diji., 727. fn
tlii.s case (!n'<;ory olitiiiiicd ii ver-
dict ugiiiii.st tho llulit'ax {'oiiipaii}'
for SHt),()UO, 8. C. N. S.

IHHH, April 3. [Lord JJlack-
liiirn, Lord Hol)lioii.'<o, and Sir R.
Coiicli.] It was nrgcd by the
counsel for the Attoriicy-Oencral
of Nova Scotia that tlu; Crown had,
irrcs[»i'cti\c of leave, a ri}i;ht of ap-
peal. Lord Blackl>iirn said lie did
not know that the Crown had any
prerogative to appeal from a
judf^nieiil against it.self any more
than anybody else ; that tluire had
been many instances in wliicli
parlies repre-^enting the Crown
have asked lor and obtained special
leave, but his Lordship %vas not
awair of any instance in which it
has been asserted thai merely be-
cause the party desii'ing to appeal
liai)peneil to be the Crown there
was a right to ap[)i'al. [^S^ce Can.
(Ja/,.1

Lord Hobhoiise stated the facts
as follows (11 App. Cas. 229;
f).-) L. J. P. C. 40; 55 L. T.
270) : — The I'ompany appealed to
the S. C. Canada, and the only
real (juestion was whether §40,000
of the 880,000 should be paid to
one Hill instead of being paid
to Gi'egory. It was a matter of
indifference to the Halifax Com-
pany whether they jiaid Hill or
Gregory, therefore the comiiany
appealing were acting on behalf of
liill, and it was agreed Hill really
rejiresented the Government of
Nova Scotia, who now ai)peai' by
their Attornev-General. Gregory
obtained §40,000 out of the §80,000
from another source ; he could not
obtain that over again under his
verdict from the Halifax Company,
so the ca.se was confined to the

§ 10,001) left, and which ih,. G„v,.in.
nieiil of XovH Scotia \vii> nlim,,
interested in. When iln' r;,^^
came itel'ore the S. {'. it wm
tlioiight better to have tlic iva]
parties face to face ; a sjH'ci.il u^riv,,.
merit was made for liiat pur hm.
in the, presence of StrniiL'. J., iiml
with the .sanction of the court
upon that agreement the .Vttonicv-
(ieneral for Nova Seotii ■.. Ji,
and cojistMited that the p „|'

No\a Scotia should be aii liv

tlieoi'der to be made on the n|i|ii'ai.
Then the agreement gois on tusiiv
what the court is to do, and it i,
the form common to arliitnitiun
agreements. It does not say tliiii
when the Attoiney-deiunii of
Nova Scotia has Im-cu siiiistitiitcd
lor the Hidifa.v Coiiipany as a
IHiity the court is to exei<'iseiill it^i
ordinary juriscliction in iippeal, liiii
it goes on to give the court a num-
ber of spei'ia! [lowers, and to
restrict its powers in .sonic icsppci'.
The respondent's right (that is
Gregory's right) is to he iimitwl tu
a claim for damage'* oi' ciTtiiiii
grounds that are mentio The

court receives special p dc-

termining the quesfioi iv-

gard to all eipiitableiis well aslcnjil
rights of the parties arisiiii; fniiii
tlu! facts and documents in cviilonii'
without reference to the piwiiiin^'s
or the jiresent state of the rwoiil.
Well, that obviously point.s to ii
question referred tout considcialiie
length, namely, the question of the
validity of an agreeuient hutweeii
Gregory and Hill, under wliicli Hill
claimed the S40,0J0, and oinvliieh
an opinion has been exprc.s.'<eil ap-
parently by one of the judges thnt
the agreement was obtniiiccl nmler
undue pressure and influence. The
court is to have power to niakesnih
orders as to costs as to it shall seeui
meet, and as it wonhl have power
to do la a suit in equity, and the
agreement winds up by saying:
" The order to be made pursuant to
this agreement shall be considered
a final disposition of all contentious,
whether now in litigation or not,"

;

UV.A. ACT. s. 101.~UK("()VRIIY OF LAND

177

misiiijj iiiiili'i' till' iirticlcs wliicli urn
il„. siilijfi't dl' (li-<iiiit(' ill tlic suit.

'•Tiii'ii' rjonNiii|»s ciiiisiiliT tint
ill (l(ri(iin^' tbo c.is^ tin- Siipfciiii-
Court Wiisiuit iK'liiij; ill itn onliimry
imimlii'tioii as II Court of A|»i);'iil,
lull wii-i iictiii;,' iiiidcr lli<^ sjh'iMiiI
ntViciicc iiiMili! to it iimlcr this
ii;;a't'iii.'iit. Tlicir Lonlships iiro dis-
[Mvd to tiiiniv tliiit ('Vi;ii il' it wi'i't"
iipcii totlu'iu to j^ivH loiivi' to iipiiciil
ill tills ciisc, tiio (|iit'stioiis niiscd arn
iiiit (irsiilRc'ii'iit III i;j;iiitiidi^ or imlilic
iiil«iv>t to iniliK'if tin-Ill to di;|);irt
fiiiiiillie oniiimry nilc, tbiit pi-rsoiis
wiio liuvo gone to tin- Sii|)n'iii'.i
I'liiiit of I'iiiiiida, and iiavo tlu'n^
failiil. sliiiU not |).'oi:0L'(l to apiii'al
10 llci' M iji'sty in Council ; but
tlicv ilo not };o into lint, bi'iMUsc
they oonsi ii'r tluit in tliis (rasiMiii
iipiK'iii ilo.'s not lie t) tlii; (^uccii
ill CoiiiiL'il." A[ipi'al disuiissod
with ciists.

KkaUN'KV r. ("llEIOI.MAX, Fell.

17. Hsd, 11 S. C. 11. Xi, atlirinin-^

1'<S.C. y.,S. (dlliiss. ,ta4d.)!)2.

Tlii- \Misiiii a'tioii I'or thn r.voxcry

iif liiiiil ill Nova Scotia. Tbo [iliiin-

lilf tuntvuiliMl tliat tli • salo of tlio

liiinl iiiKlcr a (Icci-iH! in a Clianccry

suit was bail, iiiasniiicb as be alli'j^cd

ilii' only way in wbicb land of a

il ivasi'il piTson can hi' sold in N^(iva

S/iiiia is bya ])i'titioii to tli ' (rovcr-

imr in Council. lie also attacked

til Mali lily of tbo inortj^ages and

til.' piocivdings in tbo t'orticlosiire

suit. Jiidgmeiit was given against

tlii'claiin liy a judge sitting witbont

il jury. Tiiis was allirnied by tlie

•**■ ('. X. S., wbicb court was

•illiraiwl by S. C. Canada, on tbe

^'101111(1 that even if tbe sjde was

■lut f,'0()il, the tith^ to tlu- land was

imistaiidiiig in tbo representatives

I'f till' mortgii;,rc(', and tbo idaintiit

fiiiild nut lerover in an action of

'i'itmcnt, but tbe niajiu'ity of the

<-'uiirt, Ritchie, C. J., Strong, Four-

"i'T, ami G Wynne, .I.J., held tbe

«ili' was vaiiil, Strong, J., adding

llwt the Imperial Act o Geo. 2.

'■■ 7. was valid in Xo\a Scotia, not

having been altered by any Nova

Scotia Act. Henry, J., doubled
on this bi>t point. [5 Oi'o. 2. c.
7. is repealed by S L. 11. Act,
IHS7.1

IHS(5, Nov. i;{. Special leiivo

Kkarnby ii.

Clli!KI,.\IAN.

refused.

AuiMV r. Till; (^iii:i;v, 17 D'c,

.Vbpin v. Tub

1HS7, 11 S. C 11. 7;U!, which

(4UBKN

allirnied (}. 1). {^) „'l)ue. A ipiestioti
of I'iK't wbelber tbo Oovernnieiit

had iiiidoit;ikeii a contract to

siipjdy waggons to carry bay. The
court of first instllllet^ held the
(Jovenunent had so <'oii*racted.
The t^. B. (Jiiehei! reversed tliiit
decision, and the .S. (?., without
onterin" m, otheinerit.s,followcdtlio
riiliiiL; ol' !b' (I H., the jiidginont
h.'iiig wliollv founded upon (pies-
tious of fact". [See 10 C.in. (laz.
27.1.1

1MS7, D.v. 2!). [Present, Lord
Fit/.gcraid, Lord Ilobbouse, Sir
Hai'iies Peacock, and Sir K. Couch.]
Sp.'cial lea\(' to apiieal refused.

Kx( iiANGE Bank ok Canada i\
Ban-que uii Peijpi,e,2J .funo 18H7,
S. C; Cas.sels' Di-., 1H!);{, 70.
Tbo Snpreiii.' Court was e(|iially
divided [Hilcdiio, C.J., Foiiniier
and Henry, .i.J., for allirinance,
Strong, Tuseboreaii, and (Jwynne,
JJ., for revelling] as to wb 'tiier
Craig, lb;' 111 loager ami pi'.sidciit of
tbo lOxchaiige Hank, bad authority,
and was acting within the scop;; of
his duties in aeeopting fourehiMpics
of tr. which were not to bo paid
until a siibse(|iieiit date, and which
the BaiKino dii I'eiiph^ had dis-
coiinteil. The Q. B. Quidiec lidd
tht^ Kxtdiange Bank liable. Tiio
S. C being erpially divided, this
decision stood.

1HS7, July 22. [Presont, Lord
Ilolihoiise, Sir Barnes Peacock, Sir
.lames lliinnen, and Sir 11. Couch.]
Spiioial leave refused.

Lucy MacQi:ee.v v. The
QuEEX, Dec. i;{, 1887, 10 S. C. 11.
1. The judgment of Gwynne, J.,
in the Exchecpier Court, Ontario,
stood; the S. C, composed of
llilcliie, C.J., Strong, Fournior,

K.XCH.\N(1R
JVVNK OF
C.\NAI).\ V.

Uanijue UU
Peuplb.

Lucv Mac-
Queen V. Tub

QCEEN.

•I

'■I

II 'i

II iiliki

^iil!

,p ,

Lucv Mac-

QUKKN V.

The Quebn.

Beaudet v.
North SiioitB
Railway
Company.

FonsvTH I'.
Bunr.

47H

H.N.A. ACT, s. 101.— AWARD CASK.

Hciirv, Tasfhcrcau, and Gwyniic,
JJ., bein* equally divulod.

1888, Jidy 14. Lord Hob-
luniso, Sir. K. Coiicli, Sir Barnes
Peaeoc'k. IJefused special leave
to appeal, as it appeared to their
Lordships the proper person did
not seoui to be appealinf!;, the
MacCineens havinfT conveyed the
whole of the lands to the oirieer
appointed to aeipiire the lands for
the Hideau Canal, in fee, for £1,200.

IJeaudkt r. Xoirnr Shohk
Railway Company, Uce. 11,

1887, 15 S. C. E. 41, reversing
Q. B. Quebee, restoring judg-
ment of the Suj). Ct., holding
that the arbitration was ipiito
regular, and the awanl perfectly
good anil binding on the parties.
The railway company applieil
for special leave to appeal. Their
contentions were: (1) That the
arbitrators did not at their first
meeting ajjpoint a time f(ir a
final meeting; and (2) That the
description of the land differs from
that in the submission.

it was argued that the Q. U.
Quebec! had found that there was
a fatal discrei)ancy between the
terms of the notice and the award,
the material thing being the cor-
rect desci'iption of the land.

1888, 11th Feb. The Judicial
Committee [Lord TTobhouse, Lord
Macnaghten, Sir Rarnes Peacock,
and Sir \l. Couch] were of opinion
this was an appropriate case for
the Supreme Court to settle, and
their judgment ought to 1h' final,
[Sre iO Can. Ga/,. Ki.J. |

It may be noted that if the
parties had <'onu) straight from the
Q. IJ. Quebec to the Juilicial
Committee, t icy would have had a
Privy Council decision.

FoHsvTii r. lUiHY, June 14,

1888, 15 S. C. 1{. 543 [Strong,
Fonrnier, and Taseherean, J J.,
Ititchie, C. J., and Owynne, J., dis-
senting], afTirining Q. IJ. Quebec,
which had re\ tTsed the Sup. Ct. The
question raised was as to the sale of

the Island of Anficosti. Stroiic J.,
gave the following as tli!' facts:—
This action was institiitiMl liy th,.
respondent as one of s.'viraj cn-
owiu'rs of the Island of .Anlicdsii
f(tr the licitation of tiie pi(i|H.|tv,
and the appellant, iieing also owium'
of a share in the islam!, w;is a ij'.
feudant in the action. The npi);'!.
hint pleaded no plea or (Icrcnci'
raising any (piestion as to tlii'vnli.
dity of the plaintiffs title, eitlurliv
challenging the constitiKioMiil ili;i.
raeter of the charter giaiiti'd (hv
the Dominion) to the Aiitimsii
Conqiany (tlu^ plaintilfs iiiiiiicdiiiti.
niifrnrx), or by inipeaciiiiii; tlic
legality of the company iiiiilcr ilii'
provisions of the charter, Imt al-
lowed a judgment onleriiig thii
licitation of the property to h;' nii
dered siifi silcntio. I'insiiaiit fn
judgment thus rendei'ed, the piu-
perty was sohl an<l the paii'lia"'
money lodged in comt Tiiciv-
upon the prothonotary niaiic liis
rejiort of distribution of the niiiiievs
thus arising fiom the sale, by which
he collocated the ])arties to the
action, 'the a])pellant, Mrs. K(ir-
syth, has contested this collocalidii
so fiM" as relates to the iiKiiU'Vs
alloW(Ml to the respon<leiit hy an
opposition, in which she attacks lln'
respondent's title to the share nl
this projM'rty which he claiiiieil in
the action, and has thus I'di' lln'
first time raised the (piestioiis whiiii
have been argued in the apiieal.
ITis Lordship then said that hv
allowing a judgment for licilaliun
to |)ass -vithout olijectiou the iip-
pellant nmst be considercil Id h:ivi'
ailniitted the respondml's tith'.iaul
between these parties the iiiiitti'r
was res jiiduiita, allhna;.'!! Iii>
jjordship was convinced that lln'
charter of the Anticosli ('(iiii|i;inv
was liltrii vires the Douiiniiin.aiiil
also that the company h:el iina'illio-
rity to acquire the properly el' tli''
respondent until the anioiinl nf
share ca|)ital provideil for hy lli''
Act of incorporation had !)eiii in
good faith suliseribcd fia-, uiui 10
jxrcent. thereon bond^fiifv paid up.

B.N. A. ACT, s. 101.— IIY. COY'S CONTRACT. 479

neither of which pre-reqiiisites hiul
lipcn I'Oinplicd with.

18S8, J Illy 28. Sir Barnes Pcn-
cwk [there beinji^ also present Lord
Hohhouso and Lf)rd Maenaghten],
in refusing,' special leave to appeal,
saitl : If tin; np]>ellant had oppo.sed
tlic graii; of the deeree on the
(rrouiiil that the sale to Bury was
not viiliil, the constitutional ques-
tion mi<;ht have been argued, but
tlmt opportunity not having been
tiiiien the (piestion could not be re-
oiicneil. 11 Can. Gaz. 418.

McMiLf.AN (phiintiff) v. The
Gkaxo TiurxK B.mlw.vy, March
IS. 1889, 1(5 S. C. 1{. 513, reversing
15 0. A. 1{. U anil 12 O. 11. ID.'J.

This was a claim for (hiniagc to
ptoiisscjit from Toronto to the town
of Jk'(ii('j;or (I'oi'tage La Prai-
rie iH'iii}; afterwards stibstitutcd),
Miii'itoha. The action was rai.sed
a^';;:i;t'. the Grand Trunk Railway
Co. and the Canadian I'acific Hail-
way jointly. 'I'lie goods were foinid
in iKJSscssioii of the latter line
wiicn (iiiMinged, and the plaintiff
liad accepted a sum of nioiu-y from
tlieni as to his claim again.st them.
The (trnnd Trinik IJaihvay Co.
pleaded a special claiisi^ in their
eonfraet that they were not liable
fur any damage occurring outside
liieir limits. In the S.C.,Strongand
T.iMJierean, J.I.. ladd tlmt the loss
iia\ini; occurred after tlie transit
was over, the condition reduced tlie
loiitract looiieof mere bailment, and
tile railway was not liable. Fournier
fiiiii (Iwynne, .1,1., ludd the com-
piiiiy liahle. ]{i|<diie, C)., was
•di-ent when judgment was(Udiver-
ed, hut sent a note, witho.it stating
his reasons, Ihat the a|)peal of the
Hiiind Tnuik slionid be allowed.
Ill that ciisc it was (pieried. Was a.
release of one of several tort feasors
»hm'tonna<'ti(ma<iainst the other?
[■Vff the decision of the House
"f Wds, 1 'aimer V. Wick, and
I'ldtenoytown Steam Ship|)ingCo.,
•fi""' r>, [18!M] A. C. ;}18; 71
I'. T. 1(53.]

1889, May 17. [Lord Hobhouse,
Lord Mncnaghten, and Sir R.
Couch.] Special leave to appeal
refused.

Ale.\.vnder (defendant) v. Vye,
April 30, 1889, 10 S. C. R. 501,
affirming 28 S. C. N. B. 89.
The action was one of libel. The
defendant jjleaded not guilty, and
the sole (juestion was as to the
admissibility of evidence by which
it was sought to establish that
the defendant was the author of
the newspajier article containing
th(! libel. The evi<lence in ques-
tion was that of tlio editor of
the newspaper, who had thrown
the MS. away after it had been
set up in type, and could only
pay from his recollection of the
writing as coin])ared with a sub.se-
qnent letter of the defendant that
the previous document was also
written l>y the defendant.

1889, Nov. 9. Special leave re-
fused. [ Present, Lord Hobhouse,
Lord Mai'uaghten, Sir B. Peacock,
and Sir R. Couch.]

BiOKFonn AND The Erie and
IIuHON Railway Co. v. Corpora-
tion OK Chatham, Jan. 15, 1889,
K! S. C. R. 235, p. 29(5. Owing
to the dilTereiice between the judges
of the S. C., the ap[i*'al and cross
appeal fioin 11 O. A. R. 32, which
varii'd 10 O. R. 257, were dismissed
without costs.

The action was brought by
Bickford and others to compel th«>
delivery by the <lefendantH of cer-
tain (h'oentures to the amount of
830,(KH) under a bye-law of the
defendants. The cpiestion was
substantially limited on the par* of
the plaintill's t(> whether they had
fullllh (1 certain conditions binding
tin I hem as to the erection of a
.station.

1889, 9 Nov. [Lord Hobhouse,
Lord Macnaghten, Sir Barnes Pea-
cock, and Sir R. Couch]. Special
leave refused on the grouiul that
the appcid involved no question of
gicat |)ublic importance.

McMillan v.
Grand Trunk
Railway.

Alexander f.

VVK.

fi'i

Bickford and
Krib & IIunoN
Kailwat Co.
V. Cori'drathin
OF Chatiiau.

480 IVN.A. ACT, s. 101.— PRIORITY OF CREDITORS.

Corporation
of pontiac ('.
Ross.

1 1 ■•!

I I

Tub Queen >\
The Mahitimk
IUnk.

Grand Trunk
Kaii.way v.
cocnty of
IIalten.

f I

CJonronATioN
OK Toronto v.
Att.-Okn. 01'
Dominion.

COIIPOUATION OF PONTIAC V.

Ross, Marcli 10, 1890, 17 S. C.
R. lOG, !imrinin<r Q. B. Quebec.
The (iiiestion was wliotlior debon-
tures were valid, they liaving been
siji;nc(l by a wanlen wlio was merely
such de facto and had not a strictly
legal right to the office.

IHilO, Nov. 2f). Special leave re-
fused. [Lord Hnlsbiiry, L.C, Lord
Hobliouse, Lord Maenaghten, Sir
B. Peacock, Sir R. Couch, and
Lord Shand.]

The Queen v. The Maritime
Bank, Dec. 11, 1889, 17 S. C. R.
Go7, reversing 27 S. C. N. B. .'i51.
The Maritime Bank stopped pay-
ment, and, being quite insolvent,
questions arose as to priorities.
The Dominion Safety Fund Life
Association had by the Canadian
insurance law to Hnd !?oO,tXX) se-
curity before it could obtain a
licence to carry on business. '. 'v
obtained this security by paying into
the Maritime Bank 315,(X)0 and
5?5,UOO to another bank. For the
845,000 a deposit receipt was given
to the Receiver-tJcneral, and was
to the effect that the Dominion
Safety Fund Life Association had
deposited the amount stated in the
said bank, payable to the order of
the Minister of Finance of the
Dominion in trust for the Domi-
nion Safety Fund Life Association.
That was accepted by the (iovern-
ment as security for the amount of
845,000. In the event of the in-
solvency of the assurance associa-
tion the.xe two amounts of 845,000
and 85,000 would be taken as
assets to discliarge their liabiliti<'s.
On the st()|t|)age of the Maritime
Bank the Dominion Safety Fund
Life Association obtained lea\<' in
Canada to prosecute the suit in the
name of Her Majesty, the cjuestion
being, could liie petitioners in this
case take priority ti the notes of
the bank, uot>vithstanding sec. 75),
R. S. C. (1880) c. 120., and, se-
condly, was the deposit of $45,000
a Crown debt at all. The S. C.
he'd, reversing S. C. N. B. [Sir

Henry Strong, C.J., di.ssciitin<ri
that the .•?45,O00 had never ('^^|^»^\
to be money belonging to tlie asso-
ciation. In the Privy Council the
petitioners contended" that if this
decision was not reversed the as-
sociation would have to iiu;l nnotlior
845,000.

1800, July 19. [Lor.l Watsmi,
Lord Maenaghten, Sir Raines P«i'
cock, and Sir R. Couch.] KcfusHl
special leave to appeal. [See I.'j
Can. Gaz. ;U)1.]

HosKiN, adniinistiator of Ross,
r. HuuTEAU, Dec. 11, 1890, Is
S. C. R. 713, affirming tlui odui't
below. The question was as to tl;c
property in timber. The huveidf
timber on credit pledged it on the
security of the warelionsc receipt
with the plaintill's. 'j'lie seller
did not separate the (luimtity sold
from the larger 1)ulk in wliicli it
was intermingle<l, and insured ilie
whole stock of timber as his own.
Held by the S. C. that the pro-
perty still remained in tlii' seller.

1891, 4 July. Leave to appeal
to Iler Majesty in Council refusal.

Grand Trfxic Railway r
County of Hai.ten, Feb. 20,
1893, 21 S. C. R. 710 [Sir H.
Strong, C. J., Fournier, Tasclierenii,
Gwvniie, and Patterson, .1.1.1,
atiiiining 19 O. A R. 252.

The (piestion was whether llii>
Corporation of IIalten were ui-
titled to recover the whole auiuiiiit
of a bonus paid to the llaniilton
aiul North-Western Railway in uiil
of the road; the condition of tin'
bond being that if the raihviiv
ceased to lie an independent runl
within twenty-one years the t)onu<
was to be repaid. The railway liail
l)ecome merged in thetirandTniiik
Railway within the twenfy-unc
years. 'The S. C. held llie Ih)iiii<
repayable.

1893, 25 March. Special

leiivi'

refu.sed.

CoRI'OKATION Ol- TollOXTO i:

Att.-(Sev. of Dominion. Feli. i'.
1893, 23 S. C. R. 514, reversing a

BlfA. ACT, s. 101.— WHERE PLAINLY RiaHT. 481

,leeision,lS().A.K.(!L"2;20(). K.
lil, in fiivdiir of tlie city of Toi'onto.
The fiK'ts Miv thus piveii by Sir
ITcniv Stioiij;, C..T. : Tlio qupstion
iv|)ivs('iitoil for decision involves
llic viilidity, as applied to the
Ciowii representing the Dominion
(ioveininent, of a Ine-law of the
litv of Toronto, dated 23 April
ISSH. Bv the bye-law it was
(iiiutcd tliat all half-yearly water
iiitcs paiil within the first two
iiiuiilhs of the half year for which
tiicv luv due shall be subject to a
ivilliction of ')0 per cent., save and
ixwpt i'l the cases of Goverinnent
(ir iitlier institutions which are
ixcuipt from city taxes, in which
casts the said provisions as to dis-
(niiiit sliall not apply. The Crown
in ligiit of the Dominion has vested
ill it certain public property in
tiic tit} of Toronto — namely, the
Ciisttim House and the Customs
Wai'cliou.'ie, the Po.st Office and
ilii' liiland Kevenue, and Receiver-
(iciiciars Office, and for seveml
wars past, prior to the institution
111 this action, water had been
supplied to these buildings by the
WiiltTWtirks Department of the
lily of Toronto. From the (hite
111 the bve-law the Waterworks De-
piiitiiierit refused to make any re-
liiili' on the payment by the Do-
iiiiiiiou Uo\ermiient of its water
nili'S within the time prcscrilH'il by
till' Ine-law, and the full amount
iif tiifse rates have been paid under
prntf'St. This action was brought
liy the Dominion to recover back
iliiiiiiioimt of the di.scount or re-
hiilf, equal to one half of the whole
.uiuiunt paid. By the B. N. A. Act,
till' properly of 'the Dominion is
I xi'iiipt from taxation.

l>*93,Jnly20. [Present: Earl of
Sillioine, Lord Hobhouse, Lord
Maeiiaf^hteii, Lord Morris, and Sir
H.l'oiieh.] Their Lordships refu.sed
-pirial leave, consitlcring the judg-
iiiint of the S. C. so plainly right.
^■fc21('nn.Gaz. 414.]

Boi'LTON .VND AlGOMA TrAD-

iMi Co. V. Shea, March 13, 1894,

« 2a40.

22 S. C. 11. 742, atHrming Q. B. Boultok a»b

^"|""0- ,. , , , Trading Co.

A question between lessor and „_ Shea.

lessee, wherein the .S. C. held the

lessor was not entitled to bring an

action for arrears of rent, })ayment

of- us»( and occupation, damage for

bi'each t)f covenant in removing

gravel, &c., again.st the lessee until

he was paitl for his improvements.

It appeared that the Algoma Trading

Co. had leased certain Crown lamls

to .Shea. The lease contained a

covenant by Sheii not to remove

gravel, &c. Shtm ascertained no

Crown patent had i.ssued to

the company, and thenmpon solil
gravel, and asketl for a [)atent for
himself. But the Crown granted
a patent to tlie company on con-
dition thtsy [)aid Shea for his im-
proxements. Tiiere was an award
iis to these, but it was not t^ikeu
ui). The company afterwards a.s-
signed their patent to Boulton,
who thereupon brought this action
against Shea for rent, &c. Held by
the S. C. that he was not entitled
to do so, until he hatl paid Shea
for his improvements.

1894, June 23. [Present: Lord
AVatson, Lord Hobhouse, Lord
Morris, anil Sir 11. Couch.] Special
leave to appeal refu.sed.

Coni'ouATioN OF Vancouver j*
Canadian Pa<'ikic Railway, Feb
20, 185)4, 23 S. C. R. 1, affirming Pacific
2 S. C. B. C. 30(5, 12 Dec. 1892, Railway,
which had allowed the ekiin of the
Canadian Pacific Railway to a man-
datory injunction onlering the city
to remove emlmnkments and works,
ami to restrain the city from con-
tinuing to commit any trespass ou
a certain |)ortion of the foreshore
of Burrard Inlet. The petitioners
stated that the line of the Canadian
Pacific Railway nui along nearly
the wlude foreshore of Burrard Inlet,
and formed an obstacle to the free
use of thewatersof the harbour; that
♦he petitioners therefore constructed
an embankment to carry a street,
known as Gore Avenue, to the
waters of the iidet, and they claimed

H H

COEPOHATION

OP Vancouvkk
f. Canadian

,■:

r i.

ii ;

482

B.N.A. ACT, s. 101.— ARBITRATION CASE.

! !!

; HJ7J

li Hi

Corporation
OP Vakcouvkr
V. Canadian
I'acikic
1{aii,way.

Lemoink I'.
City ok

!>[0NTHKAI..

Nohtii-AVkst

TllANsl'DliTA-
TlllN Cil, It,
>IA( KF.NZIF.

AtT. CiKN. OK
MUIIBAV.

n ii<;;lit to cross tlio railwjiy line
l>v a level crossiiijj. Tliis wns
tlie emliaiikineiit file iiijiiuetion was
directed against. Tile petitioner!-'
eoiiteiided that tlie railway was a
pulilie niiisanee, and that the i)oint
was of enornions iinporlance to the
fit V, and, if the eontention of tlie rail-
way conipany was correct, the ineaiis
of coninmuication with the waters
of the harbour woidd bo cut off.

1894, Jidy 11. [Present : Lord
Watson, Lord ITobhouse, Lord
MacnafJlhton, Lord INIorris, and Sir
H. Couch.] Special leave refused.

LicMoiNK V. City ov Montkeal,
.•?! May 18!) I, 2:5 S. C. R. .390, Sir
Henry Stronj;, C.J., Fournier,
Taschereau, Sedf>;t>wiek, and King,
.T..r.,aHirining Q. R. Quebec.

The <] nest ion was as to the
valiility of an award lor certain
lands taken by the city of Mont-
real under sec. 7 of 35 Vict. (Q.)
e. 32. Taschereau, J., .said : In
ca.ses of this nalui'c, the court, as
in reviewinfj; the tinding of a jiny,
or a report of referees, n|)on ques-
tions of l'a<'t cannot revci'se un-
less there is such a ])lain and
decided preponderance of evidence
against the finding of the arbitra-
tors or coniinissioners as to border
strongly on the conclusive ; or some
wrong priiu'iplc acted on ; or
soinelhinji overlooked which ought
to have been considered.

180'), jVIay 18. [rrcseni : Lord
Watson, Lord Ilobhouse, Lord
Maenaghten, and Sir R, Couch.]
Special leave refu.scd.

NoUTH-WksT TnANSPORTATtON

C(t. V. MArKENziK. Appeal from
a judgment of S. C. of 2(5 .Fune,
18:»"), aflirming Ct. of App. Out. of
13 Nov. 1801.

The (lucstion arose out of ac-
counts ill re the movenu'iit of grain.

18!)5, July 20. [Present: Lord
Watson, Lord Maenaghten, and Sir
J\. Couch.] S|)ecial leave refused.

Appeals from Courts other than

S. C. refused.
Att.-Oknkkal <ip Qlkhec v.
MruRAY, 25 L. C. J. 208, 22

March 1880, in which Dopi,,!,
C..I., Monk, Rauisiiy, Tcssicr, nnd'
Cros.s, JJ., hehl disallowing the
appeal of the Att.-Gcii. fiom „
judgment disiui.ssing the iirocccil-
ings taken by him for ciuiccllntidn
of letters patent issued liv tiu'
Crown, on the ground that no ii||.
jieal lies by him after tlu; cxpin,.
tion of 10 days from the diiti- (if
rendering the judgment. .SVrart
1,037 of Cod(^ of Civil Procduiv
1881, March 15. [Present: Sir
B. Peacock, Sir M. K. Smith, Sir
R. Collier, and Sir R. Coiuli]
Special leave refused.

If the statutory time allowed for
giving notice of intention of iippcal
is not attended to, thcs appciil wJH
be struck out of the list. IJritisli
India Steam Navigation Co. r.
Owners of tlie s.s. " BriMihildn."
L. R. 8 Ind. App, 150. The action
was raistnl by the plaintiff in .biin'
1879 in the Bengal Adiniiidly
Court to recover compensation f(jr
damage through a collision hetwini
the plaintiff's vessel " Avii "' inid
the "Brenhilda," in wliieh Ih,.
"Ava" sunk, and there was givni
loss of life and propeity. Tbc
Adnuralty Court found bollivesscN
to blame, nnd ordered tlie owners
of the " Breidiilda " to pay .£2:),0(l<),
being half the damage oecasioiiril
to the "Ava," less a moiety of tlir
<h»nage cnu.sed the " Brenhilda," in
all €3,000. The High Ct. [Sir li,
Garth and Pontifex] aHirnicd that
(h^'ision.

The owners of the "Brenhilda"
gave notice of apiM'al, Imt not
within the statutory time allownl
for the assertion of .Mppeals, l.'xlavs
from X\w prnnoiincimjoi tliedcciir;
see Bnle 3o, made in |au'.suunei' nf
2 it 3 Will. 4. col.

1881, March 15. The plaintiffs
moved to dismiss the ap|K«l fur
incompetency. Sir Barnes IVa-
cock. Sir M. E. Smith, Sir R.
Collier, ami Sir R. Couch ailownl
the objection, and orthred iW
cause to be struck out of llii'lisl
Times, 1(J March 18H1, U.

B.N A. ACT, s. 102— ASSETS OF TROV.

4P3

The spi'fiiil rciVri'iiff casi'.s iiri;
■■iv('iiiil")Vi',v(r Hiinisay i\ .Jiistict-s,
i^iiil tlio casi's lollowiiij,'. The liit(^
liiMiiKlaiy cases dtridi'd on special
nfiiciue were : IVoviiico of Oii-

tiuio V. Province of Quobr", 11 Boundary
Maifli 187H, Queen's Oiile. 2() ^*«'^-
Marcli 1H78; J'roviiiee of Ontario
V. Pioviiice of (ineltff, 22 .Inly
IHH I, (Queen's Oilier, 11 An-;. IHHl.

VIII. — Revenues; Debts; Assets; Taxation.

102. All duties and revomios over wliicli the re- Cmtionof
spectivc Legislatures of Canada, Nova Scotia, and New Uevenuc Fun.i
Brunswick before and at tlie Union had and have
powt'v of appi'opriatio:i, except such portions thereof as
;\iv by tl'is Act reserv^ed to the respective legislatures
of the provinces, or are raised hy them in accordance
with the special powers conferred on thein hy this Act,
sh...l form one Consolidated lievenue l\ind, to he ajjpro-
piiatt'd lor the public service of Canada in the manner
iiiul sul)j(.'ct to the charges in this Act pi'ovided.*

' In Att.-Gen. oit Ontario r.
Meucer. Nov. 14, 1H81, .5 H. C. 1?.
MS, reversing [Sir W. Ritchie,
I'.J., and Strong, J., dissenting]
(') 0. A. R. ")70, which aifirined
I'nimifodt.V.C. ; in P.O. Jnly IH,
i^t<;5, 8 App. Cas. 7(>7 ; 52 L. .1.
!'. ('. HI; 4!)li. T. ;}12 [see post],
ii was (ioeideil lands in Canada,
wliicli esclicaled for want of heirs,
l»li>n{;c(l, notwithstanding tiie sec-
limi, to the province in which tliey
iiiv situate, and not to tl'.o Domin-
ion. In that ease, Earl of Selborne,
!..('.. ill delivering judgment, said :
'• II tiicre had lieen nothing in the
.\it Iviuling to a contrary coneln-
Mdii, their Lordships might have
I'mnd it dillieidt to hohl that the
word "revenues" in tliis section
ili'l not iuehide territorial as well
II- titlifr reveiiuos ; or that a title
111 the Dominion to the revenues
iirisiiifr from public hinds did not
eiiiiy with it u right of dispo.sjil
"i"l appropriation over the lands
lliHiiselves. Unless, thei-efore, the
iiiMiftl revenue arising from lands
enhented to the Crown after the
I iiioii is exeepU'd and reserved to

Mebcer,

the provincial legislatures, within Att.-Gkv. ok
the meaning (tf this section, it ^/U^*"'" '"
would seem to follow that it be-
longs to the Consolidated Revenue
Fund of the Dominion. If it is so
excepted and reserved, it falls
within sec. 120 of the Act " [which
his Lordship reu<l, and continued : ]
"Their liordsliips, for the I'ea.sons
aliove stated, assumed that the bur-
den of proving that escheats, suhse-
(pient to the Union, are within the
sources of revenue except^-d and
reserved to the provinces, to rest
npon the provinces. But if all or-
dinary territorial revenues arising
within the provinces are so excepted
and reserved, it is not, a priori,
probable that this partictdar kind of
casual territorial revenue (not being
»'X|)ressly provided for) wouhl have
been, unless by accident or over-
sight, transferred to the Dominion.
The words of the statute nnist rt;-
ceive their proper construction,
whatever that may be ; but if this is
<loubtful, the more consistent and
probaide construction ought to be
])referred. And it is a circinnstance
not without weight in the same
direction, that while * duties and

u u 2

1Ll

l:?

Ili

484 B.N. A. ACT, s. 102.— THIS SECTION EXAMINED.

Att.-Gbn. ok

ONTAniO ('.

Mercer.

U f

llflif

•#

rcvt'inu's ' oiilv art' approjirinlrd
to tin- Dominion, tlic piililic pro-
perty itself, by wliicli territoriiil re-
venues nre i>ro(lnee<l [as distinct
from revenues arisino; from it], is
found to l)e apjtropriated to the
provinces." Then his Lordsliip
deals with the e.xceptiou in sec.
11)2.

" The words of the exception in
sec. 102 refer to '.vvennes of two
kinds: (1) Such portions of the
pre-existing 'duties and revenues'
as were hy the Act ' reserved to
the respective legislatures of the
provinces ' ; and (2) such tiuties
and revpinies as might he ' rai.sed
l)y them, in acconhince with the
s|)ccial powers conferred on theui
hy the Act.' It is with the former
only of these two kinds of revenues
that their Lordships are now con-
cerned ; the latter l)eing the pro-
<luce of tiiat power of ' direct taxa-
tion within the provinces in order
to the raising of a revenue for
pro\ incial purpo.ses,' which is con-
ferred ujton provincial legislatures
hy sec. !)2 of the Act." His Lord-
ship continued [[>. 77(! of S App.
Cas.] : " Their Lordships are not
satistied that sec. 102, when it
speaks of certain portions of the
then existing duties and revenues
as ' reserved to the respective
legislatures of the |)rovinces,'
ought to he understood as referring
to the powers of provincial legisla-
tion conferred by sec. 02. Kxcn,
nowever, if this were so held, the
fact that exclusive powers of legis-
lation were given to the provinces
as to ' the management and sale of
the public lands hcloni/itif/ to the
pi-ovince ' would still lea\ <• it
necessary to resoi't to sec. 109 in
order to determine what those
public lands were. The extent of
the provincial powi'r of legislation
over ' property and ci\ il rights in
the province ' cannot be a.scer-
tained without at the .same time
ascertaining the powtns and rights
of the Dominion under sees. 91 and
102, and therefon- cannot throw
much light iipou the extent of the

exceptions and reservatimis nmv in
ipiestion."

Then in a QucIm'c case it was
held that this section and sec. 117
are to be reconciled liy (Iccidinif
that forfeitures, or esclicnls, IhH to
the provinces. Att.-Gcii. of Qu,..
bee V. Att.-Gen. of the Di.ininion
8 Sept. 1H7(!, 2 Q. L. ]{. 231)
[sec post].

Nor does the section IimikI over
Crown lands which arc usuiviil
for the n.se of the liidiims. Jn
St. Catherine's Milling and buiiilnr
Co. r. The Queen, the Att.-Gen.
of the Dominion intervciiim'
.June 20, 1887, 13 S. V. ]{. f,;;',
affirming 13 O. A. R. 1 18, iillinii-
ing lOO. R. 19G; in P. C. Dw. 12,
1888, 14 Ai)p. Cas. 1(1; 58 L. .1
P. C. 51; 00 L. T. 197, Loi,i
AVatson, in delivering an aiiinniii;'
judgment, said [11 App. ('as.
p. 56] as to sec. 102 :—

"It enacts that all ' duties ami
revenues ' over which the respec-
tive legislatiu'es of the united pin-
vinces had and hav(! power of ap-
propriation, ' yxcei)t such poitimis
thereof as arc by this Act rosei\ei|
to the res|HK'tive legislatures of the
provinces, or are raised by them in
accordance with the si)ecial poweis
conferred upon them by this Ad,
' shall form oiu' con.soliiluted i'nini,
to lie appropriated for the piililic
service of Canada.' The extent lo
which duties an<l revenues arisiii;;
within the limits of Ontario, iiml
over which the legislatiu'e of tln'
old province of Canachi possessnl
the power of appropriation In-foiv
the passing of tlu' Act, have Imii
transferred to the Dominion li)
this clause, can only be ascertiiiinil
by a referenct! to the two exivp-
tions which it makes in I'avouruf
the new provincial legishitnies.

♦' The second of these exceptieiii
las really no bearing on tiie \ik-
sent case, because it eouiprisis
nothing beyond the revenues wlikli
pi-ovincial legislatures ure »
powered to raise by means of din'ct
taxation for provincial piirjioss
in terms of see. 02i

\i.S.\. ACT, s. 102.— FIKST EXCEPTION OF SKCT. 185

"Tlif tii'f*t of them, which apiwars
to cmiiliivlu'iul the whole sources of
ifvi'inif rt'siTveil to the proviiiees
Ii\ M'c. 10!), is of materiiil conse-
(|'nt.'iKV." [His Lordship ivml
sc 1U9, iiiitl coutiniu'd : ] "In
coimwtioii with this ehmse, it may
In' olwrvcil that by sec. 117 it is
ikcliirwl that the provinces shall
ivtaiii tiicir respective public itio-
jHTtv not otherwise disposed of iu
ilic Aft, siil)ject to the right of
Ciiiiaila to assume iiuy lands or
|iiililii.' pniiKTty required for forti-
tioitioii or for the defence of the
louiitrv. A different form of ex-
|nvssi()ii is used to detine the sub-
jcct-iuattcr of tiie first exception,
ii'iil tilt' i)io|ierty whicli is ilireetly
ii;i[iroiimtfil to the iM'ovinces; but
ii lianlly luhiiits of douiit that the
iiitciesis ill lauds, mines, minerals,
iiiid royalties, which by sec. 109
;nv dfclarud to belong to the [)ro-
\iiiei's, iiii'liule, if they are not
identical with, the * duties and reve-
nues' first excepted iu sec. 102."

Hjs Lortlship thtui said .itc. lOi) Att.-Okn. of
— • ■ Ontaiuo f

Merckk.

was sullicient to gi\e to each pro- Ontaiuo v.

vince the entire lieuelieial interest
of the Crosvu in all lands within
its boundaries, with the exception
of such lands as the Dominion
ac(piired right to under .sees. lOH
and 117.

The 13tli .section of the Mauitoiia
Act of 1878,c. i;{., was as follows:
" All lines and penalties impo-sed
and levied by the police magis-
trate a|)poiuted under tiiis Act,
shall be, uule.ss othcrwi.se [irovided,
paid into the City (Winnipeg) Ex-
eheipier, and form a fund for tile
payment of the salary of the police
magistrate," Ac. The Minister of
Justice olijected to this, so far as it
attempted to control or disjKwe of
lilies and forfeitures impo.sed by
the criminal law.

A somewhat simihir .section in a
British Columbia Act was also
objected to. See Prov. Leg., IHHU,
p. 617.

103. The Consolidated Revenue Fund of Canada Expends of
shall be permanently charged with the costs, charges, ™ '^'^ "" ' '
and expenses incident to the collection, management,
1111(1 receipt thereof, and the same shall form the first
charge thereon, subject to he reviewed and audited in
such manner as shall he ordered by the Governor-
General in Council, until the Parliament otherwise
provides.

104. The annual interest of the public debts of the intenst ..f
several provinces of Canada, Noca Scotia, and New public dt bis.
Bi'iiimcick at the Union shall form the second charge
on the Consolidated Revenue Fund of Canada.

105. Unless altered by the Parliament of Canada, '^'^•'i''y

. , *' Oovcrht

the salary of the Governor-General shall be ten thou- Gommi
!<ivnd pounds sterling money of the United Kingdom of
Great Britain and Ireland, payable out of tlie Consoli-
dated Revenue Fund of Canada, and the same shall
loriii the tliird charge thereon.

of
nor-

;:t!!

[■1

■ji

i iii

im i^

I' W

*'i

. f '? 1

ftiiw

Appropriation
from time to
time.

Transfer of
stocks, &c.

Transfer of
property in
Schedule,

486

H.N.A. ACT, s. los.— PUBLIC WORKS.

106. Subject to the scvoml paymtuits l)y this Act
charged on t\w Consolidated lleverme Fund ol' Cmutihi^
the same shall be ai)pi'opriated by the Parliainoiit of
Canada for the public service.

107. AH stocks, cash, banker's balances, and sceiui-
ties for money, beloni^ing to each province at the time
of the Union, except as in this Act raentiontMl, shall
be the property of Canada, and shall be taken in re.
duction of the amount of the respective delits ol' the
provinces at the Union.

108. The public W(jrks and property of each pro-
vince, enumerated to the third Schedule to this Act,
shall be the property of Canada}

' See sec. 92, sub-spc. 10.

This section cntu'ts tliat tlio
public works and uiulcitukiiif^s
cnnincratt'd in Sclu'ibiii' .'J sluill
be the property of t'auiula. As
specified in the sche(hde, these
consist of public unileitakin<;s
which might fairly be considered
to exist for the benefit of all the
provinces federally united, of lands
and buildings necessary for carry-
ing on the Customs or postal ser-
vice of the Dondnioii, or re(|uired
for the puri)ose of national de-
fence, " and of land set apart for
general public ])iiri)oses."

See Lord Watson in St. Cathe-
rine's Milling and Lumber Co. v.
The Queen, Dec. 12, 1HH8, 14
App. Cas. p. 5G, that the enumera-
tion cannot be reasonably held to
include Crown lands which are
reserved for Indians' use ; an<l
that those lands belong to th(!
provinces in which they are situ-
ated.

By this section all railways be-
longing to the province of Nova
Scotia passed to and became vested
in the Dominion, but not for any
longer interest tlierein than at the
dat(^ 1st .July 1H()7 (the date of
the proclamation of the Dominion

B.N". A. Act.) belonged to this pro-
vince.

Tjie Westehn Counties Rail-
way Co. V. WlNUSOR A.ND Ax-

NAi'DLis Bailway Cc, in S. (.'.
Nova Scotia, April 5, 18SI, 11
S. C, (N. S.) R. 2H0 [Nil' W.
Young, C.J., Ritchie, K..I , iiiid
Des Barres and Smith, J.I., .Jann ;•,
.1., di.ssenting], atlirming 12 S. ('.
(N. S.) R. ;57G, which alliniKMl iIm'
judge in Equity, Russ. i^c ('licsliv's
Eq. R. 288; "in F. C. Feb. i'L',
1882, 7 App. Cas. 178; 51 L. .1,
r. C. 13; IGL. T. 3r,l.

Lord Watson delivered the f(il-
lowing judgment [there iieiii;:
also present Lord Bliieklmrn, Sir
Barnes Peacock, Sir Robert P.C"!-
lier, and Sir Arthur Hubliousc];
" In the present case, ciieli of the
contending parties claims the p.\-
elusive right to possess luid work
the Windsor Branch Hiiilwiiy, in
the province of Nova Seoti.i. This
line was originally constructed ii>
one of the public railways of \h
pro\"ince, and was intended to '»'
part of H general system eoiiucct-
ing Halifax and other towns of
importance with the fionticr of
the province of New Brunswick.

UNA. ACT, s. lOH.-lJOM. AND RAILWAYS.

1.87

.U'ttr till' paisHiii^ of tliu IJritisli
>'(]rtli Aint'iica Act, 1HU7, aiul in
iiifdidiinco with its provisions, all
railwiivs licionj^infj to tlm province
of Nova Scotia, including tiio
liiH' in (|iicstion, passed to and
iKriiine vested in the Dominion of
I'aumlu.

"The Chief Coinniissioner of
liiiilways for Nova Scotia, acting
iiiidfr aiitiiority couferreil upon
liiin I)}' the provincial Act, 28
Vid. c. 23., entered, in November
lt<(iO, iuto an agreement with
iltScsrs. I'unclmrd, Barry, and
Cliirk, of London, whereby those
fti'iitleiiien beeauie bound to make
II liiilway, which was to be their
own jjroperty, from Windsor, one
of the termini of the branch in
i|iii'stion, to Annapolis. By that
iii:n'unu'nt it was inter alia pro-
vidwi that, before the new line
from Windsor to Annapolis was
opi'iicd by Messrs. Punchard,
Biiiry, and Clark, a traffic arrange-
ment was to be muile between
tlii'in and the provincial Govern-
nitiit 'for the mutual use and
cnjuvnient of their respective lines
of iiiihvay between Halifax and
WiutLsor, and Windsor and An-
napolis, including running powers,
or for the joint operation thereof,
on i'(|iiitulile terms to be settled by
two arliitrators, to be chosen by
the parties in case of ilifl'ereuce.'

" By an Act of the Legislature
of Xova Seotia, passed upon the
"th May 18G7 (30 Vict. e. 36.),
Jlissrsi. Punchard, Barry, and
Clark were constituted a body
C'or|)orate, by the name of the
Windsor and Annapolis Railway
Company; and the agreement of
November 18(j« between them ami
tlie Chief Conmiissioner of Kail-
ways was, by the same Act, adop-
ted aud confirmed.

" The AVindsor Branch Railway
Wame the property of the Do-
minion upon the 1st July 18«7,
''wng the day appointed by Her
5J'i.iesty, iu terms of sec. 4 of the
British Nortii America Act, for
tne provisions of that Act coming

Kailway Co. >•
Windsor and
Annapolis
Railway Co.

into operation. And, on the 22nd Tiih Wksteiin
September 1871, the (lovi'rnment Counties
of C'anaihi, as then owiu'rs of the
railway, and in implement of the
obligation to make a ' trallie ar-
rangement ' which is contained in
the agreement of NoNcmber IHOtJ,
entereil into a new agreement
with the respoinh-nts, the Wind-
sor and Annapolis Railway Com-
pany.

" It is unnecessary to consider
in detail tlu; whole terms of the
agreement of 1871. Its provi-
sions, so far as bearing upon the
present case, are in sulistaiice these.
The exclusive use and possession
of the Windsor Branch Railway
was made over to the respondent
company, with running powers
over the trunk line, also Ix'loiigiiig
to the Dominion Crovernmeiit,
which connects tlu? Windsor
Branch with Halifax. The Do-
minion Government was to main-
tain the Windsor Branch as well
as the trunk line in workalile
condition, whilst the respondent
company undertook to render and
adjust regular monthly accounts of
all traffic carried by them over these
lines, and to pay to the Govern-
ment, not later than twenty-one
days from the end of (!aeh month,
one third of their gross earnings
from such traffic. The company
also undertook to j)rovide rolling
stock, and to run a certain number
of trains «laily, with stated hours
of deiiarture and arrival, and to
conduct their business and traffic
with impartiality and fairness. No
right of re-entry was reserveil in
case of the company's failure
(lunctually to make payment of
one third of their earnings, but it
was stipulated (art. 19) that ' iu
the event of the company failing
to operate the railways betwetm
Halifax and Annapolis, then this
agreement shall terminate, and the
authorities may immediately pio-
ceetl to operate the railway between
Halifax and Windsor as they may
deem profwr and expedient.' Last
of uU, it was provided that the

488 B.N.A. ACT, 8. lOS.-DOM. AND RAILWAYS.

!if

. :ii:

:^fM|n

The Wbstkhn
countiks
Haii.wav Co. ti.
Windsor akd
Annapolis
Kaii.way Co,

aj^rci'muiit should tiikc t'ttVct upon
tlic 1st (lay of Jiuiiiiuy 1H72, and
coiitiiiuc for twcntv-ouc years, ami
1)«! tlu'ii renewed on tlie same eon-
<litions, or upon such other condi-
tions as might he niiituaily agreed
on.

'* In accordance with the fore-
going agreement, tlie respondent
company in -lannary 1H72 took
possession of and worked the
Windsor Briineli line. Siiortly
afterwards the montidy payments
diie to (Jovernmeiit fell into arrear,
but these arrears were ])aid in full
iu Novendter 1872, in conseijuenee
of a threat that Government would
re.sume possession of thi' railway.
During the following year the
company again failed to make
paynuMit of the third of the tratlie
receipts for which they were lialile
to the Dominion Government, who
intimated that, unless idl arrears
were paid up on or before the 1st
October 187.'?, they would resume
possession.

"On the 22nd day of October
1873, an Order of the I'rivy
Council of Canada was passed,
ap[)roving of a report, date<l the
21st of tlie sjime month, from the
Minister of l*ublie Works, 'stating
that the Windsor and AnnaiH)lis
Railway Company had failed to
operate the railway known as the
Windsor Branch, mentioned in
Order in Council of the 22nd
iSeptendier 1871, and to comi)ly
with the other terms and condi-
tions of that Order in Council, and
now owe .?30,000 to the Govern-
ment of Canada, and though re-
peatedly called upon to pay have
faile<l to do so, and recommending
that, ina.smuch as the stud com-
pany have failed to operate one of
the railways between Halifax and
Annapolis, the Government of
Canada, known rs " the authori-
ties " by the said Order in Council,
do proceed immediately to ojjerate
the railway between Halifax and
Windsor.'

"On the same day (the 22nd
October 187.'{) tlie Governor-Gen-

enil iu Council, .subject to [W
sanction of Parliament, iippiov,.,!
of a proposal made by the iippd.
hint company for a transfer id
them of the Windsor Braneli l{iii|.
way, upon the.se conditions ;

"'1st. The said eonipanv will
undertake to receive the siiiil inil-
way and appurtenances on llu' IIim
day of Decend)er, Auiio Domini
eighteen hundred and scvciitv-
three, and from that date to work
it etliciently and keep tiuNiim'in
repair at their own proper fo>ls
and charges, collecting, reeeiviiij;,
and appropriating to their own iisr
all the tolls and earnings uf tlie
.same.

'"2nd. That on the (•oiiipjetioii
of the Western Counties Uailwav
from Yarmouth to Aniiapoiis (ihiw
in course of construction), the siiil
railway and appurtenanees, liuiii
Wind.sor to the trunk line, slmll he
tiiid become absolutely the pi'o|HMtv
of the said Western Counties Kali-
way Company.

" ' 3rd. That, in coiisidenitioii of
the premises, the said coiiipuny
hereby engage to prosiriite the
work of building the railwiiy I'ldin
Yarmouth to Annapolis, and eoiii-
plete the same with all rensoinililc
tlespatch.'

"On the 30th October 1^7.!,
the Governor-General in Coiiiieil
approved, subject as before to par-
liamentary siuK'tion, of a fmtlui
proj)o.sal made by the appellant
company in tlie.se terms : —

'" 1st. That the Western Omii-
ties Railway Com|)any shall ciiin,
free of charge, all passengers IkiW-
ing Government tickets, on all tluir
pjissenger trains running iii'twwii
Halifax and Windsor .1 unction.

"'2nd. That the said compiim.
or their agents or assigns, j^IwH
have running powers over tlie
Intercolonial Railway, between
Halifax and Windsor Junctiou.
with such privileges as luive Imn
hitherto granted in the agreeiiieiit
with the Windsor and Annapolis
Railway.'

" On the 26th May 1874, au

IJ.N.A. ACT, s. lUS.— DOM. & WINDSOR UAILVVAV. IH'.)

Act was piisscd by the Piirliamcnt
ote'aim(lii(;57 Vii't.c. l(i.),<'ntitlf(l,
'All All to iiiitlioiize tilt' tianst'ur
111 ilic Windsor Unuicli of tlu^
Nnvii Swilia Railway to tlu' Wcst-
,111 C'ouiitifs l{4iil\vay Company.'
I'lie proposals ol' tlu- appi-llant
coiii|iiiriy, which were jji-ovision-
iillv ajtivi'd to by the Orders in
(.'uiiiu'il of the 22nd and .{(Jth
October W.i respectively, were
sd forth at length in Seheftnles A
mill B appended to the Act, and
iiri' ri'tVrred to and sanctioned by
till' (■iiacting clauses. Jt will be
iitvi'SMirv, licieat'tcr, to (ixaniine.
lliis stilt iiti' more closely, l)eeanse
till' appellant's ea.se is mainly
toiimli'il upon its provisions, and
lliL' parties are widely at varitmec
iis to tiieir true import and effect.

" Upon the 22nd .June 1875, the
ii'spoiiilcnt company entered into
1111 aifret'iuent with the Minister of
Public Works of Oannda, by which
the eouipany, on the one hand,
uuilertook to alter the gauge of the
Windsor and Annapolis Railway
tiuiii live feet six inches to the
sianilanl gauge of four feet eight
mill one half inches, to deliver to
the Minister a certain quantity of
liicoiiiotives and other broad-gange
|iliiiil, anil to release all claims and
ilemumls against the Government
lit' Ciiniula u[) to the 1st day of
•Inly 187-5. On the other hand it
Wiis agreed that, upon the change
of ifimge being effected, all arrears
of tiailic receipts, due by the com-
pany to the Government, which
liiiil aecnied up to 1st January
iH'o, should be discharged, and
that the Minister of Public Works
should then deliver to the com-
pany a like quantity of narrow-
gauge engines and rolling stock.
It was further stipulated that the
t'ompimy should, on or before the
iilstJuly 1875, make payment of
the third of gross earnings which
had accrued after the 1st January
IH75, and that the proportion of
such traffic earnings due to the
Government, and thereafter aecru-
iug, should ' be paid monthly, as

provided in the .said agreement '''an Wkstkhn
under which the company hold ^olntiks

, 1 .1 1 11 • I IlAll.WAV ( (). V.

an.l work the branch us alore.saul, .^v„„,.„. ,,,„
winch (except as alorcsaid) is Annai'iii.is
herel)y (lechircd in all respects in Kailway (.'o.
fidl force and effect.' In puisu-
ancH of this agreenu-nt the re-
spondent company altered tlu;
gaugt! of their line, and regularly
nnule the payments therein stipu-
lated, and an exchange of engines
and rolling stock was also nuidc in
terms thereof.

" The respondent company re-
nniined in full [)o.s,scssion of the
Winil.siu' Branch line, and con-
tinued to work the same from the
beginning of the year 1872 until
the l.st day of Augii.st 1877. On
that datt! the Donunion Govcrii-
nu'Ut took i)o.s,session of the Wind-
sor liranch line ; and on the
21tli September following, trans-
ferred the possession of it to the
appellant company, under the
agreement scheduled to the C'ami-
tlian Act of the 2Gth May 1871.

" The respondent company, upon
tlu' 10th October 1877, tiled a bill
in the Supreme Court of Nova
Scotia against the appellant com-
pany, wherein it was pi'ayed, inter
nliti, that the latter company
should be ordered to deliver up
pos.se.ssion to them of the Windsor
Branch Railway. 'I'he appellant
company appeared and dennirred
to the bill, but their demurrer
was, on the Utli March 1878,
overruled by the judge in Etjuity,
and an appeal taken against that
juilgment was dismi.s.sed by the
Supreme Court sitting in Banco,
upon the 2!)th August 1878, James,
J., alone di.s.senting. The cau.se
then leturned to the judge in
Equity, and after the appellant
company had put in their answer,
and evidence had V)een adduced by
both parties, Mr. Jn.stice Ritchie,
upon the 1st March 1880, gave
judgment in favour of the re-
spondent company with costs ;
and his judgment was affirmed
with costs by the Supreme Court
of Nova Scotia, ou the (ith April

I >'

tDO n.N.A. AC'I", s. 1(W.— THIS SKCTIOX KXA MIN R|).

t'!

ThB Wr,8TER!»

COUNTIKH
Raii.way t'o. V,
WiNDSOH AND

Annapolis
lUlLWAY Co.

{ I

iMKJItIt

IHHl, .Iiimcs, J., iM'ili;!; iifjaiii the
only (li!SNi'iiti(>iit ,in(l<;i-.

" Some of tilt' poiiit.x, uiisiici't'ss-
I'ully iniiiiitiiiiK-il by tlu> ii|i|M-llMiit
(•oinpiiiiy in the coiiiIm of Xomi
Scotiii, wt'i'c not prt'sscd in tlm
ar^iiiiM'iit uildntsscd to tills liourd.
The two proposilloiis sprioiisly
iniiliitniiird by the tippi'lliinls were
these : — (I) 'riiaMlic Act piisscd by
th<> I'arlianii-nt of Canada upon
the 2()th May 1H7I (M7 Vict.
c. It).) c\tlii;;iilshcd all ri<>;lit and
interest which the respondent
eoinpany hud in the Windsor
Ui-anch Hivilway, by virtue of the
nfjreeiiient of 22nd September
1H71, and transfeired to the ap-
|)ellant company a present riijlit to
the exclusive possession, and a
future rif^ht to the exclusnc pro-
perty, of I le said railway ; and
(2) that the I'arliament of Caiiadu
ha<l, under the jiroxisions of tlui
British North America Act,
18(57, iimple lej;islativ(^ autho-
rity to t^ike away, without eom-
peiisatlon, any right in or relating
to the railway which might be
vested in th«! respondent eoiu-
pany, and to transfer it to the
appellants. It is not dispute<l
that, if either of these propositions
be not weU-foiiniled, the appel-
hints' i-ase must fail.

"'I'he lOHth section of the
liritish North America Act, lHti7,
which must Ix; read in connec
tioii with the third sclieduU) of the
Act, had tlu! etl'ect of transfer-
ring, upon the 1st day of July
18(57, to the Dominion of Canada
nil railways which were the pro-
perty of the province of Nova
Scotia. Their Lordships are of
opinion that it had not the effect
of vesting in Canndii any other
or larger interest in these railways
than that which belonged to the
province at the time of the statu-
tory transfer. Accordingly, the
Dominion took the property of
the Wind.sor Branch Bnilway, sub-
ject to the .siime obligation by
which the right of the provincial
Goverumeut wus affected, vi/.,, to

enter into a trallie ariaiigciii(.||i
with the respondent eoiii|iiiiiv, In
terms of the agreement coiilirincd
by the provincial statute of ihi.
7th May H()7 ; and it was in pm.
suance of that obligation ilmt t||,.
Dominion Uoverniiieiit enli'ii'd imi,
the agreement of 22nd SepiemlNr
1871. The agreement thus nimli.
was valid, and must cDnliniii'
to receive ell'eet until it Imn
been t(>rniinated by the delault nt'
the respondent I'oinpany, by tlie
mutual con.sent of parties, or hv
the action of a. competent lei'is.
liiture.

" As already stated, (he appclliint
com|)any maintains that tiu' a;;m'-
meiit in question has been put
an end to by the Act of ti com.
jietent legislature. In (IcMliiif;
with that contention, it will lie
convenient to consider, in the IIm
place, whether, on the assiiiiiptidii
that the Dominion I'ariiaiiit'iit
had authority to enact the ;i7lli
Vict. c. 10., the provisions of tlwt
Act do extinguish those rights In
lelation to the Wind.sor Bnimli,
which are conferred upon the rc-
siKindent company by the iigive-
ment of 1871.

" 'l"he pr(i|)osals, or pro\ isioiuil
agreements, which are scliediilid
to the Act .'57 Viet. c. 1(5., coiitiilii
two distinct .sti|iulatioiis, the i>\v
relating to the possession and iim',
and tlie other to the propeitv, nl'
the Windsor Branch l^iihvay. li)
the lirst, the appellant c()iii|mii)
' undertake to receive the siid rail-
way and appurtenances on the first
day of December, Anno Uomiiii
eight«H.Mi hundred and seveutv-
three,' and to work it ellicieiitly
thereafter. Although t)i. cfUM
jiany undertake to n- eive,
no correspoi
upon the '

■ligation bi
111 lo givelbci
.1 raihv!i\. I'it'
leeemlx'i' lH7;i, 111
itied diiie. By the
second of these sti; lations it is
provided that, upon im i (Hiiplftion
of the West^-rn Counties HiiilwHv,
then in course of coustruLtiou,

pos.sessioi
Upon the
any other spi ■

UNA, ACT, s. lOH— DOM. &■ I'lTHhIC INIKKKSTS M)l

frmii Vniiiiimtli to Aiimipolis, tin-
Wiiiilscjr Hiiiiich lliiihva)' ami its

;i|l|llll'll-lllllll'i'S sllall l)C llllll biM'UIlK!

ihf iiltsidiitf pntpcrty of tlio iippt'l-
liint cciiapaiiy. Tlit! (iovcnior-
(ii'iicnil, with advii'o of h'\>^ Coun-
cil, winilil pi'olialtly Imw l»ffii
1 iilillcd, liy virtiio ot' tlid udmiiiis-
liiilivc powers coiitViTcd upon liiui
liv till' l-tli si'ctiou ol' till! Hi'itisli
Ndilli Aincrifa Act, 18157, to
iiiiiki' a viiiiil af^rccmcut in I'fjjard
III till' |lllssl'^'sillu and working of
iIh' iiiif; Imt it is, at h-nst, very
iluiililfiil wlictluT 111' wonlil liavt!
Iiiiil till' I'i^iil to alii-nato the pni-
|)iity of the line, without th»!
siiiitiou of the Doniiniun I'urlia-
iiii'iit. lie that as it may, the
I'iiiliiiiui'iit did interpose upon thu
I'tith May 1H74, to the eiiVet, thi!
ii|)|)i'lliiiits say, of destroyinfj; the
|iivvii)iisly Hubsistinj; agreement
lii'twi'i'ii the Uovernnieiit and the
ivspoiiileiit eouipany.

"Xi.Mtlier in the Act 37 Viet.
1. 10., nor in the schedules ap-
|ii'iiili(l to it, is mention inmle of
llii' a^jri'finent of 22nd .Septeiidior
ls71, or indeed of any right or
iiiliiost of the respondent eonipany
ill till' Windsor Branch Railway.
Tliii canon of construction applic-
iibli' to such a statute is that it
must not lie deemed to take iiway
IT i'Xtinj,'iiisli the right of the re-
-|Hinik'nt conijiany, unless it np-
piiii', liy e.vpii'ss words, or by plain
iiiiplinition, that it was the inten-
•iun of the legislature to do so.
Tliiit principle was allirmed in
Bamiif.'ton's case (H Coke, I'SHa)
tlTlioums' Ed. p. 417], and was
riTojinised in th(! recent case of
lliu Uiver Wear Comniissionors
!•• Adiuuson, 2 App. Cas. 743.
Till' I'niuuiation of the principle
IN 110 doubt, much easier than its
iipplication. Thus fur, however,
tlic law appears to be plain — that,
in order to take away the right, it
1* not sullicient to show that the
tiling saniJtioued by the Act, if done,
will of sheer i)hysical necessity put
ail ■ ■ 1 to the right; it must also be
sill II that the legislature have au-

thorised the thing t(» be doiu', at Thb Wkhtkrn
all event,s, and incspeetive of its ''"I'-'^i''*-''
possible interfereiic.. with existing w/J'dI'oI. and' '

'■'^'''•«- .\NNAPOI,W '

"It appears to their liordships Railway Co.
that thcrtt is nothing in tint provi-
sions of the Dominion Act, 37 Viet,
c. 1({., to warrant the inference that
the l'arliam(!iit of Canada must
liave intended thereby to eiiiutthat
immediate possession of tlu^ Wind-
sor liranch, for the purpose of
working it, was to be given to the
a|ipellant company, under tli(> agree-
ments .scheduled, even though there
should be a subsisting arrangeiix^nt
for the working of the line, in-
ileed, the contrary appears from the
2iid section of the Act, to which
reference will be made hereafter.

" The preambUi of the Act recites
the propo.sed transfer of the rail-
way to the appellant coin[>aiiy, and
also a resolution of the Canadian
House of Commons, of date the
23rd of iVlay 1873, to the effect
that the Government should be
authorized to enter into negotia-
tions for the transfer of the Wind-
sor Branch to .some reliable asso-
ciation or company, ' upon condi-
tion that such company extend the
railway from Annapolis to Yar-
mouth ' It makes no reference to
any right Ixdonging to or asserted
l)y tho respondent company, nor
does it refer to that |iart of the
.scheduled agreement which relates
to the willingness of the apjiellant
company to undertake to receive
the railway and ap|)iiiteimnces
uj)on the 1st December 1873. it
is impossible, tbcri'lore, to gather
from the terms of the; preamble an
intention to terniinati! at once any
temporary right of possession which
might belong to the respondent
company. The transfer of the
railway was obviously not expected
to take plact! at once. It was tle-
I)endent upon a condition which
might never be f iiltilled, and whicli
admittedly has not yet been ful-
filled, viz., the completion of tho
line from Yarmouth to Annapolis
by the apiK-llant comijany. Be-

',i|ii

;i I

1J)2 H.N.A. ACT, s. l()rt-l)(^M. AND NOVA SCO'I'IA.

■ :■ U

i>j

TiiK Wbbtkhn

COUNTIKS

1{aii.way Co. i'.

WiNllKOIl AM)

Annai'oms
Kaii.wav Co.

, ■»■'>

;, i

ll'

sidfs, the transtVr ol tin; proi/crty
of till' I'ailwiiy is nowise im'oiisist-
i'Ul wiiii tlu- t'iut of woikiii};
lUTMii'^ciiifiils iifft'(iiii<; tin- tntiis
fcfoi-'s lijrlit continiiiii'; to iiHV-rt
tin- rifjlit of the tiiiiisfvrot'.

" 'riitn coiiK'S llic Ic'iidiiif; eiiaot-
niciit of tlu stiilntr, IIS coiitaiiicil in
scf. 1, wliich is ill tiicsc terms : —
' Till' )i<ricciii('iits iicrciii-hefori'
rcft'iTfil to, and set forth in tlie
St'lH'diili's A and U to tliis Act,
li«'in<j sncli as wcrt' ailo|it('d Ity the
orders of tlie Governor in Conneil
of tlie twenty-seeoiid and tiiirtietli
•lays of Oetolier eifjliteeii iiiindred
and seventy-tliree, and all the
matters iuid things therein eon-
tiiiiKHl, are hereby apin'oved, and
<U'elared to Ik* as ett'eetnal to all
intents and purposes as if tlie said
afireemeiits had lieeii entered into
in piirsnanee of siillieient authority
in that liehalf, <;i\cn before the
adoption of siieii afjreemeiits liy
Aet of the i'arliainent oi' Canada.'

" ll was aifjneil for the appellants
that the ett'e<'t of the preeedin;!
clause is precisely the same as if
the Parliament of Canada had,
prior to October 1H7.'<, passed an
Act aiitliori/,in<; the Oovernor in
Council to make an afirecmeiit
with the appellant company in
terms of the proposals set fortli in
SehediilcM A and 15. That arjiii-
inent appears to be well founded ;
but wl'.at would have been the
elTecf of such antecedent statiilory
authority ? Tiieir Lordships are
unable to discover ;' term in the
coiitraci, coutaincf' ; i Si'lu'dulcs A
and 1), bindin<; tlie (Sovernnient to
}i\\i' the respondent company ii.i-
mediate posscssiop. of the line, or
to transfer tlu' proiM'rty of the line,
free of all contracts or arran«re-
iiients whatsoever; and, if such an
obliffalion cannot be infern-d from
the lano;ua<;e of the a;;reeincnts
.sanctioned by the lejfislatiiie, it is
iuipossibh- to derive, froiu ihc
lan;rua<;e of this section, any in-
tention to defeat the respondent
company's rijjht of possession.

" It ap^K-ura to tlivir liordshipH

thai, even if the terms of these
l)roposals had conteinpliitcd tlie
ininiediate transfer of possession to
the appellant com|mny, that woiiM
not have been nece.ssarily coiielii-
sive a<;ainst the respondents in
this appeal. There is ;i cr|-,,.||
difference between jjivin^r aiitlioriiv
to ni'ike a:« a<jreement and iiutlui.
ri/,in<j it to Ik' made and forlliwiili
carried out so 'is to oveniile and
destroy all private rif^lits tlint niav
stand in its way.

"The second, and only other
section of the Act, provides thnl,
until arraii<renients are eiiiii|i|et(.||
f{)r jiivin<; possession of the line to
the appellant <-onipany, for the
purpose of workiu<j it until the
completion of tlu'ir line from .\ii-
UJipolis to Yarmouth, the (lovein-
ment shall have power to make
such other arran<>;ements ns niav
be necessary, ' by contimiiiij; the
working of the same by the Wlmi-
sor and Aiuia|K)!is liaihvtiv Coin-
pany, or otherwise.' These |ini-
visions certainly do not sn;:;;e>-t
that it was in the couteni|ihitioii el'
Parliament that immediate |io>m's
sion of the Windsor Hraiicli Hail-
way was to be jiiveu to the appel-
hint com]' my for the purpose ef
operatiiif; it ; on the contriiiT, tiiey
are apparently intended to meet
the ca.se of the (■Jovcrmiit'iil ili-
dining to give possession of tin-
line to the app llaiit coinpHiiy nl
the time when the latter had nmlei
taken to rec«'ive it. Nor do these
pnivisions necessarily indinitethiK,
if then! should be a siilisistiiij;
working agreement with the i>-
spondeiit company, or any other
coiiilMiiiy, that agreement wiis in
be s('t aside, in order to ii<linit "I
the (Joxernmeiit making siuh ;iii
arrangement as is provided I'oi- in
this section. u case of tlieiv
being no such staiuling ngreenieiii
in the way, the ])owers confein<i
upon the (}o\ernmt;it nic mm?
wiile ; and, even if the a^ireenieiit
of 1871 had JM-en (leteriiiin<Hl, it i*
by no means clear that the npr^i'-
ulent of 22iid April 1M75 «ouM

n.N.A. ACT, s. iOH— DOM. AND PROV. TITGHTS.

493

not ^'ivc I lit' rt'S|i()n<UMit coiiipiiiiy
lii'lit to foiitiiiiio tlioir i»ossessioii
of tlic lint".

"In till' \i>'W which thi-ir Lord

ships tfikc of the import and (HFcct

of tliu Cimiidiiiii Act, ."J? Vict.

c. 1(>., it ln'coint's iiiinecessjiry to

ilccidc wliftiuT, if it IiimI chosen to

do so. the I'mlianit'iit of Cnntidii

wduld Imvf had the power to ex-

tiii;;iiisli till' rifjlits of the respond-

fiit niiiiimiiy inider the afireuinent

ot':i2iid Septeliiher 1H71. WhetluT

llml power is jjiveii by the provi-

Mons (if llie Biitish North Aineric;i

Act to tlie Dominion Parliament,

or to the lii'fiislature of Nova Scotia,

is a (pu'stiou of dilliculty and ini-

portaiifi' ; hut weiiifj; that it dites

nut arise for (h'cision iu the i)re-

Miil ease, their Lordships express

no opinion whati'ver in refi;ard to it.

'• Their Lordships will, therefore,

hiinildy iulvise I[er Majesty that

till' jiiil;;iiients of the courts liolow

(iii;;lit to he ullirmed and tlie ap-

|Ha! liisniised 'J'lie appellants

must pay the costs of the appeal."

TlIK WlXDSOIl AND AnNAI'OI.IS

Kaii.way ('(imi'Any »". Tiik Qi;kkn

AMI 'I'lIK Wk.STKUN COUNTIICS

l!\ii.\VAV. it c. ronfrii. Iu S. ('.

1-Vh. 1(1, iss.-), 10 s. ('. K. :\:\o

Sir W. Ritchie, VJ , t'ournier,
lli'iiry, TiLsehereau, J.l., Stroii<;,
Mild Gwyniie, ,1,1., dissentinj;],
wliicli reversed ttwvnne, .1., in
K.u'h. ("I. Mav IH, 1HS.'{; in P. C.
•lime LV). ISHti, 11 A pp. CVs. 007;
mL. J. P. C. 41; 5.-) L. T. U71.

Lord Watsor [there lieinff also
pivsciit lionl rialsiiiiry, L.C, Lord
lloiilioiise, Sir Barnes Peacock, Sir
Moiitajrii,. .Smith, and Sir Hiehard
( ouch 1 Slid: ♦' The Uovernment
ot Caiiaila, l>y an a<;reenieiit daied
tlic l!;iiiil Septendier 1871, uiuh'r-
liiok to ;;i\(' the appellant company
till' I'xcliisivi. use of the Windsor
liiaiiil. liailway, and also running
[lowirs over the trunk line, from
Windsor .function to Halifax, for
the term of '2\ years, from tho
l>t .laniiary IS72." The appellant
wuipiiuy, iu pmsuiince of that

afjreement, enteifd upon and 'I'uk Wixd.soii
winked the Windsor Branch Hail- f ' Annacoi.is
way until the 1st August 1H77, "IkQikjL"" "'
when Mr. Brydgcs, the Govern- and AVkstkiin
ment Superintendent of Hallways, Counties
look po.sscssioii of the line, and put Kaii.way.
ail end to the occupation of the
company. On the 24th Septem-
ber 1877, the same otlieial gave
po.ssessioii of the line to the
Western Counties Itjiilway Com-
pany, undci' an arrangiunent, the
terms of whicii ai'c to lie found in
Scheiliiles A and B of the Act of
the Dominion Parliament, 37 Vict,
c. l(i.

" The appellant company, on
the 10th OctolK'r 1877, tiled a hill,
ou the Eiiuity side of the Supreme
Court of Nova Scotia, against the
Western Counties Railway C a-
puny, in which they soughi to
obtain a declaration of their riglits
under the agreement of September
1H71, to recover possession of the
Windsor Branch, and to have an
account taken of the receipts of
the defendant company, from
freight and |)assenger tradic. On
the IJllh SeittemlKT 1878, the
ap|M'llant company presented a
petition of right to the Kxcheipier
Court of Canada, under the pro-
visions of the Dominion Act,
;{!) Vict. c. 27., in which they
liumbly prayed that the agreemeiit
of 1871 should 1k' s|»ecilically per-
formed, and also ' that the sum of
L'1,'50,(HM) sterling, or such sum as
may be reasonable, may be paid to
your suppliants in compensation
and by way of damages for the
injuries and losses which have been
occasioned to them by the lu'caeh
and failure of Her Majesty's
(iovernmeiit of Canada \i perform
the .said agreement of the 2-ud
.Septeinbei 1871.'

" In the Ki|uitysuit, Mr. . Justice
Ritchie, on tlielsl March 1880,
(lecided that the plaintilfs were
'entitled to the jiidgmeiit of the
C(uirt in tluir favour, with cos;.*.'
Th.it decision was utUrmed by the
Supreme Court of Nova Scotia, on
the 6th April 1881 ; utid ou Rp|M>aI

11 .

>^ 4^

494

B.N.A. ACT, 8. loH— DOM. AND PROV. niOTTTS.

Thb Wijcdsor

AND AnNAIMiMS

Railway Co. v.

TlIK QURKN
AND AVESTKRy

Counties

JUll.WAV.

f I

to tliis Bniird, tlic jiulgmonts of
Iwitli courl.s Inflow \Vi!ii' iiiriiiiUMl,
with costs, on the 22ntl Fdbninry
1HH2 [see tihovt-]. Thi'ir Lordships
held tiuit tho af^rconieiit of 22nd
Si'ptfinlicr 1H71 wn.s valid and
siihsistiiifj; and tliat the rijfhts of
tho Windsor and Anniipolis Jiail-
way C'onijMiiiy under that agiee-
iiicnt were not affoctcd by tlio
Canadian Aft, 37 Vict. c. 10.

" Dininn; the depeiideiieo of
these proeeedin<;a tho Government
of C'anaihi put an end to their
arianj^enient with tlie Western
Counties IJjiilway Coini)any, and,
on the 1st Deeond)or lS7n, they
allowed the ap])ellant eom|)any to
resume possession of the Windsor
Branch, and to exercise runninp
powers over the trunk line, but
that without prejndictf to the rights
or liabilities of H«'r Majesty, or
the a])pellaiit company, except in
so far as the question of damages
might be thereby affected.

" Her Majesty's Attorney-
General for the Dominion of
Canada apin-ared in the iK?tition of
right, twA lodged a .statement in
deft lice on behalf of Her Majesty,
on the 18th October 18H0, but no
further proceeding.^ were taken in
the eaii.se until the judgment of
this Board had been gisen in the
Kijuity suit. On the ISth May
INH.'i, Mr. Just'.e Owynne ih-cided
that damages were not, in the eir-
cumstjinees of ease, recoverable
from Her Majesty, and dismissed
the petition with costs, ' leaving
the suppliants to pursue their
remedy, for such compensation
iigainst the AVestern Counties Bail-
way Comi)any, under their jiulg-
uient already recovered against that
company." A motion for a rule
to sliow cause why the judgment
of Mr. .luNtice G Wynne should not
1m! 8«!t aside wius refused by the
Court of Exchequer on the 2(ith
.liiiin 1HH3. Upon an appeal
against that<le<-ision totheSupn-nie
Court «>f Canada, Sir W. J.
Bitchie, t'.I., and Taschereau, .f .,
held lliat a petition of right lay

iigainst the Crown, but tlmt ilio
damages recoveialile imist Ik.
limited to the period of the down's
pos.s«'Ssion of the Windsor niiinih
from 1st August to 2ltli .Si'iitcm.
ber 187" These learned yuh^vs
were of v.pinioii that the iipjxllinit
company, by their ])r(icec(liiigs in
Eipiity against \\w Western C(nin-
ties Railway Company, had elcctcil
to take that company as tlieir
debtors for all claims of danuic'L'
arising after tho 24th SepteiuUr
1877, and were con.s«>quently hnricd
from jireferring the.se claims ii^'ain>t
the Crown. Fournier and lliniv,
J.T., whilst agreeing that (lie pcij.
tion of right lay, held that the
Crown was liable for diimajrcs
suffered by the ni)iKdlnnt comiiiniy
after its possession Imd cciiNd.
Gwynne, J., adhered to his fornicr
dec ision, and Strong, .T., eiuienrnd
with him. The Supreme ("ouit,
accordingly, on the Kith Felnniin
1885, reversi'd the judgment of the
court below, and ordered nnd ad-
judged that the BU|>p!iants Miccn-
titled to recover from Her Mnjistv
the Queen the prolits of the C'luwii
from the Windsor Braneli IJailwav
from the 1st August to the 2ltii
Septendter 1877, which llnv llxcd
at the sum of j<9o89.7.

"The |)rincipalai)peal i'roni lliiit
jiidgtnent is taken by the ii|i|hI-
lanl.s, the Wiud.«or and AnnniKjIis
Bailway Company, who oiijcct to
it, in so far as it excdudes tluir
claim of damages after the I'ttli
Sept<'mber 1877. The respondiiit,
Her Majesty's Attorney-Oontiiii
for the ]3ominion of Canada, liii>
brought a cross appeal, in nliiili
lie seeks to have the jiuigiiicnt el'
the Sujueme Court s«t aside, and
to have the judgments of .Mr.
Justice Gwynne and of tiic Coiirt
of Exche(|uer restorwi.

" The responih'Ut has not, in llif
courts below, or at their Lonl
shijis' Imr, imjuigned the dtcisiuii
of this Board in the Ki|Mitv "•nil
between the apptdlaiit coiiiixniv
and the Western Connlies Hidlwuv
Company, He has coiieiiied flmi

i -'rm

B.N. A. ACT, s. 108.— PETITION OF RIGHTS. 495

the nppt'Uant company Imvo still
till' li^lit t" possess and use the
Wiiulsor Uraufli line, under the
a^rnruicnt of 1871 ; and, seeing
tiiiit the company was restored to
possession in the year 1879, the
courts below have not thought
it lu'ct'ssary to disjwse ii those
pints of the prayer of the petition
ot' ri"lit which relate to perform-
ance ot the agreement of Septem-

kT 1871.

» Their Lord.ships are of opiinon
tlmt it must now Ik; regarded as
s.ttled lii\ "jat, wheniiver a
viiliil I'oul has been i.UMle be-
tween the .)wn and a subject, a
IKtitioii of right will lie for damages
resulting from a breach of that
(Miitiwt by the Crown. Section 8
(if the C'aimdian Petition of Right
.\et (;«) Vict. c. 27, Dom. Parlt.),
iiiiiteiiiiiliites that damages may be
leeoveiiilite from tiie Crown by
iiiciins of such a petition ; and the
leiisims assigned by Lord Rlack-
Imiii for the decision of the Court
(il Queen's Rench in Thomas v.
The Queen, L. R. 10 Q. B. .SI,
iipiHiu' to their Lordships neces-
siiiily to lead to the conclusion
tiiiit (liiiiuinres arisinj' from broach
(if eoiitnu't are so recoverable. A
Mill for (liuiiiiges, in respe(!t of tlm
\iiilation of contract, is as nmch an
iiiliuu upon the contract as a suit
fur iH'rforinaiiee ; it is the only
iiviiilable means of enforcing the
eiiiitriiet in cases wheiv, through
tile act or omission of one of the
eiiiitmctiiig parties, specilie per-
fiiriimnee lias become impossible.
Ill Tobiii r. T\w qwm, 1(5 C. R
(X. S.) ;{.',-), Chief Justice Kyre,
whilst alUruiiiig the doctrine that
the siivereij;n cimnot be sued in a
|H'litii)n dl' right, for a wrong doin>
liv the executive, took caro to
iM'l'iiii that Sluims founded on
eiiuliiiets and grants matle on be-
lii'h of the Crown are within u
ilass l(M,mlly distinct from wrongs.'
" It WHS III giied for the re8|>on-
•I'lil that, ill Thomas r. The
Queen, tin. (hiiiii of the suppliant
was not for duinogeu, but f«)r u

AND ANNAI'OI.IS

Rau.way Co. r.

TllR Ql'KKN
AND Wk.STKU.S
CoUNTIKS

Railway.

pecuniary con.sideration alleged to Tin? Winh-sor
have been due in terms of the con-
tract ; and conseipuMitly that it was
unnecessary for the Court to de-
ci(hi anything as to the liability of
the Crown for miliqnidated <lama-
ges resulting from breach of con-
tract. Rut Lord Rlackbnrn, in
that case, (U'als with the suppliant's
petition as alleging certain breaches
of promises made to the suppliant
on behalf of the Queen ; and his
reasoning npjK'ars to this Roard to
be i|uite as appliudde to a claim of
uulifpiidated damages for breach of
contract, as to a chiim for the con-
tract price. Lord Rlackbnrn rests
the jmlgment mainly upon the
' Ranker's case,' 14 Howell's State
Trials, 1, which was a suit for an-
nuities granted by letters patent
un»h'r the great seal ; but Iiis Lord-
ship at the same time points out
that, from the; time of Lord Somers,
there had been reiwated expressions
of opinion by eminent judges in
favour of the view that a petition
of "ight lay against the Crown on a
contract. It is unnecessary to cit«f
thes(! opinions, which are all col-
lected in Thomas v. The Queen.
'I'heir Lordships may, however,
refer to the accurate exposition of
the law given by the late C. J.
Cockliurn in Feather v. The
Queen, a R. & S. 25)3 :— « We
think it right to staU; that we see
no reason for tlisstMiting from the
conclusion a/rived at by the
Common Pleas in Toliin r. The
Queen, l(i C. R. N. S. MO. We
concur with tlmt Court in thinking
that the only cases in which the
petition of right is o|M-n to thi^
subject arc, where the land, or
giMxIs, or money of a subject hnv«'
found their way into the | os.session
of tin- Crown, and the purpose of
the |H>tition is to obtain restitution,
or if restitution cannot Im- given,
compensation in mon(>y, or when a
claim ari.ses out of a contract, a.s
for goods supplie<l to the Crown or
to tiie pui)lie service.' Their
Ijordships <lesire to mhl that, u[)on
this branch of the case, tlusy ngreo

i'l

v^h

I i ; t

TllK WiNDSOH
AND AnNAI'OI.IS

Uam.way Co. v.

TllK QUKK.N

A.SD Wk«tkiin_'

Col'STIKS

Kaii.wav.

I- li

;;i

490 n.N.A. ACT, s. lOS— LIABILITY OF THE CHOWX,

with tli(^ ri'iis<iniii<r of ('. J. Ritcliic,
anil the alilc jiulgiiicnt of Mr.
Jiistit'c Fonrnicr.

" Il wiis (ir}rm'(lf()rtlu'n'S|)on(l('nt
tliiit no lnH'aoh of tlic afji-ccmcnt of
1H"I WHS coiiiiiiitlcd !)}• tin- down,
inasniiicli as tlic ttikin>r posscs.sion
of till- Windsor Hranch Uailway
on till' 1st Aii'just 1K77 was simply
tlic tortious ai't of Mr. Urytlj^cs.
Tilt' ar<;iinit>Mt fails because it has
nofoiiiHlation in fact. The respon-
dent, in his statt^inent of defence,
aile<i;es that, on or altoiit the '2r)th
July 1877, the Ciovernnieiit of
Canada, haviiif; completed arrange-
ments for transferring the line to
the Western Counties Kailway
Company, a ininiite was pa.s.sed liy
the Governor-deneral in Council
•lirccting that the arrangements
then e.xi.xtiiig with the appellant
company should lie Icrminatcd on
the 1st Augu.st 1877; that the
Minister of I'liltlic Works was
directed to resume possession on
that day; and that, 'in pursuancu
of the .said minute of Council and
of the said Act of 1871,' the
fillicers of Her Majesty dispossessed
the appellant coni|)any an<l gav(>
piis.sc.ssion of tlu' line to the Wes-
tern Counties Kailway Company.
It is plain, therefore, that I^Ir.
Ihydgcs acted with the full au-
thority of till' (lovernnicnt, and
merely earried out their instruc-
tions, which were issued in the
iM'lief that it was within their legal
right to put an end to their agree-
ment with the appellant company.

"Anothcrargunu'nt suhmitted on
liehalf of the rcspoiulent was to the
effect that the Crown is oidy liable
in respect of brenclics of contract
occasioned by the omi.ssions of
Crown oliicials, and is not liable
in respect of breaches due to their
positive acts, even when these acts
aredonc uiuier direct iiuthority from
the Crown. Ujion thi.s point it is
siifricieiit to say that, in the opinion
of their Lordsliips, there is neither
authority nor principle for recog-
nising any siicli distinction.

" It was hImi argued for the re-

spondent that the Crown ca t

be held liable a.'' fiij- liicnli (i|\(,||.
tract, inasnuu'h as all tiie nets of
the (iovernment of Canadii, iii|)ii|.
ting nn end to the |)ossessioii i,\ tlic
appellant company, were (lom. (t„
use the language of Mr. .luMic,.
Strong), 'c.vpressly with tin. i,,.
ttuition of acting in puisiiiiiicc of
the statute of 1874, and lor tlu'
purpose of carrying out the pio-
visions of that .statute, a dpitvwlmli
I'arliamont had imjiosed nii tln'
Executive Govermueut.' If tlic
cfFect of the Canadian Act u( 1871
(;J7 Vict. c. l(i.) had been to mak,.
it the im|M'!ative duty of the (io.
vernnu'iit to terminate their hjjih'.
ment with the appellants. iukI to
give possession of the Windsor
Mranch to the Western t'oiintiis
Hallway Company, the down
would have incurred no lijiliilitv to
the appellants by performing tlmt
statutory duly. But the decision
of this Board in the i)revions suit
was given in favour of the ]m'.stiii
appellants, on the very groiiiid llml
the Act of 1871 did not iiilVct tin-
Milidity or subsisteiu'c of lln'ajjnv-
ment of Septend)er 1871, iiml im-
posed no obligation on the (iovnn-
ment to interfere with tlie ii|)|nI-
hint's possession of the Wiinkir
Branch Bailway, or to tnuisfir ii
to the Western Counties llaihv;iy
Company.

"The only matters reinaiiiiiiirtiir
consideration arc the extint tu
wiiich the Crown is linhii' It
damages, and the anioiiiit il
damages which ought to W
awariled to the appellants. Tlifir
Lordships are of opinion tliiit, on
the 1st August 1871, wlu'ii llnv
were ousted by the act of iW
Crown, there arose fotheti|)|)i'liiiiii>
a claim of damages, for los* nl
|K)S8essioii, during the whole n-
mainder of the term s|ii'tilii'il in
the agreement of 1871; iiml ll'si
their sid)secpient restoration, in
Ueeember 187!>, had im ri'lv tin
effect of reducing the iiinomil of
that claim. They are iiimMi' w
assent to the view taken Itv Mr

B.N.A. ACT, 9. 108.—TORT FEASORS.

497

Justice Henry, who was of opinion
lliftt (laiiin^t's must he restricted to
the ptiiinl bttwTen 1st Aiifjust
1H77 uiitl r.)th St'pteiiilMT 1H7H,
tile (liitc when the petition of ri<?lit
WHS pri'suntt'd.

•' It liiis l)wn urgued, 'owcver, for
tiie rospondei'', and tne Hiiprcnio
Court of Cimu II has, by n nmjority,
jrivtu flffct to the argument, that
tlif ai)|ji'llauts can only reco\er
from the Crown such damages as
wore iiicurrnd by them whilst the
Crown was in actual iwssession of
tlic Windsor Branch Railway. It
i> siiid tiiat the appellants ar(>
cslopjM'd from preferring any claim
a<,'aiust the Crown, after the 2ltli
Scpteuilx-r 1S77, by reason of their
Laving clecteil to accept the Wes-
tern Counties Railway Company
as tbi'ir sole debtors for damages
aucriiing subsequently to that (hite.
Ill the opinion of their Lordships,
ilie |)lett thus advanced by the
nsiKindent is without foundation
either in fact or law, and must
tlieri'fore l)e rejected.

"The respondent's statement in
liefenee coutains no plea of estoppel,
ami no aUegiition of fact, upon
wiiieh such a plea could be founded.
file argument has been lm.sed upon
ilie print (iC proceedings in the
Eiiuity suit, which was tendered
liv the res(H)ndent, at the trial of
the present cause In-fore Mr, Justice
• iwvnue, and received dr henv esse.
Kven if it were eompet<'nt in these
cireuiu^tJinces to entertidn the plea
||fe>t()|>pel, their Lordships would
lie (if (ipniinn that ro case of elec-

•ioii lia-s I n miul(> out. Both

>uils were dipending long before
"II o|MTative judgment was pro-
I'ouneed in eitlier of them. In the
Miil directed against the Western
Counties Railway Company, which
piaved inter itli'u f„r an account of
jTi'tits, allhongh the appellants
«eie found to be entitled to the
judgment of the court in tht-ir
favoiu-, there has l»een no onler
directing an account to be taken,
imne has Ucn taken, and no decree
has In-eii made ordaining the do-

S 2»40.

fendant company to make a money Thb Windsor
payment to the appellants. Had *"" Annapolis
there been such a decree, any pay- ,p "'q** ^°" "'
ment ma<U' unch'rit Ity the Western and Western
Comities Railway Company would ConNTiBs
have operated in satisfaction pro Bailway.
tanto of the liability of the Crown,
it could have had no other effect.

"Their Lordships have accord-
ingly come to the conclusion that
the appellants are entith'd to judg-
ment for the whole damage sus-
tained by them from the 1st August
1877 to the 1st Decend)er 1H79.
The evidence as to the amoiuit of
damage lies within a very narrow
compass; it is not contradictory,
and involves no question as to the
credibility of witnesses. In these
circumstances, their Lordships have
thought it iK'tter, in order to ob-
viate the necessity of further liti-
gation, to determine the amount of
dauuiges themselves, and they have
accordingly assessed the same at
S115,U(K)."

" Their Lordships will humbly
advis*^ Her Majesty that the cross
appeal should be tlismissed, and the
judgment appealed from in the
original appeal, in so far as it
orders and adjudges ' that the
apptdlants, the suppliants, are en-
titled to recover from the respon-
dent, Her Majesty the Queen, the
profits of the Crown from the
Windsor Braiien Railway from the
1st day of August 1H77 to the 21th
day of .Septcaber 1S77, both in-
clusive, whi< h have been (i.\ed and
determined at the sum of .S95H9.7,
l)eing portion of their relief .sought
by tht! petition of right,' ought to
be rcMMsetl ; and that quoad ultra
the s4iid judgment ought to be
athrmcd, subject to the declaration
that the apiH-llants, the suppliauttj,
arc entitletl to receive from Her
Majesty the Queen the sum of one
hundn>d and tifleeii thousand dol-
lars (81 15,000), as the damages
suffered by them by rejvson of
their having Wvn deprivetl of the
|K>ssession and ust; of the Wintlsor
Branch Railway from the 1st
August 1877 to the Ist December

I I

r' >

Ifilfi'f'n

I? '

!,];

I" i

498 B.N.A. ACT, s. lOS.— RIGHT TO FORESHORE.

North Shobb
Railway v.

PlOM.

HOLUAN V,

Gbrgn.

Lvo!« II. Fisii-

MONOKRS' Co.

1879. Their Lonlships ttlso find
that tho appellant coni[)any are
entitled to receive the costs in-
curred by them, in the principal
and cross appeals.

G. was in possession of a part of
the foreshore of the piibl" '. haiboiir
of Suininerside, and had erected
thereon a wharf iM'tween hi<?h and
low water at whicli vessels might
iMiloa<l. H. liroufrht ejectment.
His title consisted of letters ]>atent
under the fj;''*'"^ seal of Prince
Edward Island, 30 Aiijr. 1877, by
which the Crown, in rijjlit of the
island, and assumin>r to act under
a provincial Act, 25 Vict. c. 19.,
purported to grant H. a fee simpli;
to the land. Held that under this
section of the B. N. A. Act tlie
soil and bed of the foreshore in the
harbour of Suinmerside Iwlongs to
the Crown as re])resentinK the
Dominion of Cana<la, and therefore
the grant under the great seal of
Prince Edward Island to H.was void
and inoimrative. Holman r. Green,
March 28, 1881, 6 S. C. R. 707.

Where a railway company has
obtjiined a right to run the track
along the foreshore, a corporation
of a town Ijy which it passes has
no power to raise cud)ankments on
a level with the line so as to form
a road over the line on the level.
ISee ca.se, p. 481, S. N.] The argu-
ment there was that the soil of the
foreshore was in the Crown, and the
Crown could deprive the general
subject of the indirect advantage
of coninuinicating with the fore-
shore. But there is a great dis-
tinction between the public right
of navigation from the rights be-
longing to the owner of riparian
land. Thus, where a railway ran
along the foreshore, and injury to
the access to or exit from land of a
riparian owner is a neces-sary,
patent, and obvious con.se(|uence of
the execution of the railway works,
then the floctrine of Lyon v. Fish-
monger:' Co., Jidy 27, 1876,
1 App. Cas. 083 ; 4(J L. J. (Ch.)
t>8 J 36 L. T, 5U0, will iu reason

and on principle apply, and in.
demnity is due. Jn tlie Xoitli
Shore Railway Co. r. Pidii, in S. ('
20 June 1887, 11 S. C. 1{. 07i
which reversed Q. B, (^ii,.!,m'
4 Feb. 1880.

In P. C.Aug. 1, 1HH!», HApn.
Cas. 012; 59 L. J. ]'. ('. 05.
01 L. T. o25, Earl Sclbdi-iui stiii(.<
the facts : •' The respondent^, tin-
Pions, carried on their lnisinc*
(of tanners) npow riparian land,
belonging to them, wiiieh Imd a
frontage of considerable Icnj.'!!! to
the ' St. Charles,' a tidal niiMVahli.
river within the limits of tlic lur
hour of Quebec. 'I'lic appfllaiil-,
thu IVorth Siiore llailwnv (Vmi-
pany, in 1883 made tlicir niihva\
upon t le foreshore of tiiiit riv. I'liv
means of an embankint'Ht cxti mj.
ing along the entire lenjiiii ul' iln-
resiMjndents' frontage, not, how-
ever, taking any part of llic if.
spondent.s' land, and in tills ein-
bankment they left one; o|ti'niiii.',
15 feet wide and 12 or 1,'i I'tii
high, opposite to the tHMiii'iy,
through which the rivtr was ac-
cessible at low tides and at sonu'
(but not all) high tides. AVilli that
exception they cut off all awiss tn
the water from the n'>|)onili'nt-«'
land, which, before tliosi: work"
were executed, was always acwssi-
ble for boats at high water alon;-
its whole frontage. The apiH'l-
lants also made another o|KMiiii;'
just outside! tin; boundary ul' tlic
respondents' land, ami o|i|)ositi' lu
the end of a jjublic street tlii(Mi;'li
which the respondents mi i.'lit,t'xcr|it
at certain high tides, have found no- |
cess by means of that stn-et tdtlu'
water. No compensation or iiidiiu-
nity was paid or offered liy the up-
pellants to the respondents, wlui
brought their action eoniphiinii:;'
that they had been unlawfully shut
out from Hm'w access to the livii,
and asking for tlamages, and ibi
the company might be coniiiflW
to demolish and remove the u\<-
Mtruction."

His Lordship then coiisidinil
uU the authorities, and beld ttai

B.N.A. ACT, s. 108.— QUEBEC & LXG. LAW

499

the case of Lyon v. Fishmongers'
Co. [•<«'' n't'crence above] wiis
iis altplinil)li' at Quebec as in Eng-
land. Tliiit none of tht; authori-
ties rciii'il on l>y the uppciiants
■tiiitl to establish the non-exist-
iiiwof riparian riglits upon navi-
^'.iliic or tidal rivers in Lower
(.'aimila, or to show that tiie ob-
•iniftiou of such rights without
]i!irliauR'iittuy authority woukl not

be an actionable wrong, or that if, North Shore
in a casi! like the present, the Ka'^-way v.
riparian owner wouhl be entitled
to indemnity under a statute au-
thorizing the works on condition of
indemnity, tiie substituted access by
openings such as those which the
appellants in this ca.^e have left,
wouM be an answer to a claim for
indemnity."

109. All lands, mines, minerals and royalties helong- Property in
ing to the several provinces of Canada, Nova Scotia, &" *' """**'
ami Xew Branswick at the Union, and all sums then
due or payable for such lands, mines, minerals or
royalties, shall belong to the several provinces of
Ontario, Quebec, Nova Scotia, and New Bnmswick in
which the same are situate or arise, subject to any
trusts existing in respect thereof and to any interest
other than that of the province in the same.*

' Construing the word " royalties "
ill this section with sees. 102, 117,
iiiul siili-sic. 18 (property and
civil rifiht.s), sec. 1)2, it has been
iield that when a person died
wiihout iiciivs and intesttite, leaving
leal as well as ijer.fonal property,
iliat escheat fell into the revenue
uf the pro\ince and not into the
revenue of the Dominion. See
.\tt.-Gen. of Quebec v, Att.-Gen.
of the Dominion, in Q. B. Quebec
^ Sept. 1876, 2 Q. L. R. 236, re-
wsing H. E. Taschereau, J.,
1 Q. L. K. 177 [see below],
ii question concerning the pro-
perty of n person dying without
lieirs and intestate in the province
"f Qneliec. In that ca.se the judges
^f 'lie Q. B. Quebec rested their
jiidiruient, firstly, on the ground that
"> the provinces under sub -.sec. 14,
*'e. 1)2, could deal with the descent
»f property and could pass a law
truing illejjitiinate chihlren a right
to udierit, therefore the provinces
were invested with jjower to appro-
P'H'te this psclieat to themselves;
i"id secondly, on the word « royal-

ties,' in sec. 109. Taschereau, J.,
who presided in the court of first
instance in that case, and formed
one of the majority in Att.-Gen.
of Ontjirio v. Mercer in the S. C,
Imsed his decisions against the right
of the provinces on the 102nd sec-
tion. Att.-Gen. of Ontario v.
Mercer, 5 S. C. R. .'iSH, reversing
0 O. A. R. o7t; and Proudfoot,
V.C., 2G Grant 120 ; in P. C, .July
18, 1H83, 8 App. Cas. 767 ; 52 L. J.
P. C. 84; 49 L. T. .312 [see
6e/ow], was a question as to the right
to lands situate in the province
of Ontario. The lands in question
belonged to a [)erson who had died
without heirs and intestate. The
•ludieial Committ«!e decided, re-
versing the S. C, that such es-
cheats fell to the province ami not
to the Dominion, under .«ec8. 109
and 126. In Mercer's ca.se. Earl of
Selborne, in giving judgment,
aflSrmed the result of the decision
in the ca.se of Eraser's estate,
Att.-Gen. of Quebec v. Att.-Gen.
of the Dominion. 2 Q. L. «. 236 ;
IQ. L.R. 177.

II 2

500 B.N.A. ACT, s. ion— PROVmCTAL PROPERTY.

il '

Co. I'. The

QUKEN,

St. Catiib- The right to Tndinn hinds sur-

Pn ",'* Thk"""*" ''•'"'lered to the Crown, the bcne-
ficinl interest therein wns hIho dc-
elnriHl to ho in the provinces and
not in tlip Dominion. See
St. Catherine's Milling? Co. r. The
Queen, 20 June 1887, 13 S. C. U.
577; 13 O. A. R. 148: 10 O. R.
196; in P. C. Dec. 12, 1888,
14 App. Ciis. 40 ; 58 L. J. P. C.
54 ; 60 L. T. 197 [see ante, p. 94].

Att.-Oen. op
British Co-
lumbia V.
Att.-Oen. op
Canada.

Att.-Oen. op

QCEBRC V.

Att.-Gen. op
DoMimoif.

As TO Minks and Minerals. —
The provincial h'jjislatures have a
ripht to the.sc. In Att.-Gen. of
British Cohimhia r. Att.-Gen. of
Canathi, tlie Judicial Coinniittee
aflirinod decision of the Exch. Ct.,
14 S. C. R. 345 ; in P. C. 3 April
1889, 14 App. Cas. 295 ; 58 L. J.
P, C. 88; 00 L. T. 712 [see
belowj. The Judicial Committee
held, reversing the decision of the
Supreme Court of Canada, that
the precious meUds within the
Canadian Pacific Railway Iwlt
within British Columbia were vested
in the Crown, subject to the control
and disposal of the Government of
British Columbia. The main point
there was — by British Columbia
Acts, 43 Vict. No. 11. and 47 Vict,
c. 14., settling an arrangement by
arbitration in terms of tlie lltii arti-
cle of Union between Columbia and
the Dominion, British Columltia
agreed to convey to the Dominion
a certain extent of land in aid of
the construction of the railway.
Tlie precious metals under this
railway belt were claimed by the
Dominion as having passed to it.
On the other hand, the i)rovinco
contendwl no transfer of the pre-
rogative! right was effected, nor
was there any grant of these mines
and minerals to the Dominion Go-
vernment. In tliis ease there were
pivsent Lord Hal.sbury, L.C., and
Lords Wat.son, Fitzgerald, Hob-
house, and Macnaghten.

Att.-Gkn. of Queukc v. Att.-
Gkn. of thk Douimon, 8 Sept.
1876, reportetl under the name of
" Church r. Blake," 2 q. L. R. 236,

[Dorion, C.J., Monk,

Sanborn, and Tessier, JJ.],rev(rs.'
iiig H. E. Taschereau, J., 2!) .Jim
1870, 1 Q.L. R. 177, and tl„.
result of wliich ease was appiowd
of by the Earl of Selboino, L.C ,
in Att.-Gen. of Ontario c. .Mcrnr.
Thefactsare thus given liy Dorion,
C.J. : " Edouard Fraser (lied .n'
Fi-aserville, in the iiroviiuc of
Quebec, on 2 Feb, 1874. He w.is
not married, he left no lii'irs tind
no will. Under art. ()37 of tliu
Civil Coile his estate devolved to
the Crown. However, shortly
after his death, one Daniase Camii
was appointed curator to his vaoml
estate, »nider art. 317 of the Code,
and took possession of his proinrtv
[which comprised both persmml us
well as reid estate]. The Att-
Gen. for the province of Qiu'Ihc
then in.stituted this action to ri-
cover from this curator the pro-
\wrty composing the estate. Aflir
the return of the action, the Att -
Gen. for the Dominion, acting iiImi
on l)ehalf of Her Majesty, |K'ti-
tioned to be permittcid to inti ivein"
in the cause to chtini the estuto.
This petition being eontisttil In
the plaintiff, the parties were liiani,
and by the judgnient of tliccdiirt
below, the Att.-Gen. for tlic ]h-
minion was delartMl to be eiitilleil
to claim thcestate, and wusallnwnl
to intervene. The present apimil
is from this judgment, and r;iis<
the important (piestion whitliT
escheats belong to the I)i)inini"ii
or to the province wheniii lliy
arise ; for, although both |>.iili-
claim the Fraser estate on litliall'
of Her Majesty, they in reality iln
so on behalf and in the intrivMif
their respective governmetits. In
l)Oth in.stanees they use the nniiie
of Her Majesty, but only as npr ■
senting the public domain, tbif
the Dominion in the one ca-si lul
that of the province of (Jnelw in
the other. The contcstntioii lieins
thus submitted by the parties ii ^

unnecessary to eu(|uiro

Will'lllft

they are both right in a.*sulilln^' '''
proceed as they have doi"' '^

BN A. ACT, ». 109.— I'UWEll OVER INHABITANTS. 601

Itelialf of Her Majesty, and the
only (lucstioii which by the plead-
iii<'s is siil)iiiitto(l to us, is whether
the Att.-Ueii. lor the Doiiiiiiioii
has shown any ri^ht to this estate,
fur if lie luis no ri{^ht to it lie
bus no rif;ht to intervene in the
taiiscs. J'iie title of the Att.-Ueu.
fur tilt' province of Quebec is not
now in ((iK'.stion."

His Lortlsiiip then continueil :
" h is unnecessary for the purpose
(if this eiiiise to entpiire into the
uri;.'iii of this right to escheats.
It is siitlic'ient that at the time the
B. X. A. Act, l(Sl)7, was passed
tlipy bclonjjcd to the Crown, as
(ietlared by our Code, or more
pruperiy to the Uoverunient of the
late pruviucf of Canada, in whose
favour lli-r Majesty had released
tliat i)ortiou of her revenue arising
ill the province, in consideration of
till' civil list {^ranted to Her
Majesty i)y the Act of 9 Vict.
c. 1)1. I'he rij^ht of the late pro-
viiRc of Canada to these escheats
lieiiii; undoubted, it only remains
to ascertain whether it was re-
.*rve(l hy the Confetleratiou Act to
the jiroviuces of Quebec and On-
tario, or attributed to the Dominion
Government.

"lulhc distril)ulion of powers
made by the Confederation Act
lictween the Dominion and the
^e^)aratu provinces, the Dominion
I'arliaineiit has the control of all
matters of a general character
affeitiiig the wholu Dominion.
The provincial legislatures exercise
their authority over matters atfect-
iugtlie inhuiiitunts of their respec-
tive provintcs only, and among
the subjects to which their au-
thority extends is the jrower of
legislation as to the rights of pro-
jurty uud civil rights in general
LHuli-sec. 13,sec. J)2, sec ante, p. 257 ] .
The right to regulate the trans-
mission of property by inheritance
'alls within the powers of the
legisltttuiis of the several pro-
vmees, iw uflecting rights of pro-
perly and civil rights. For in-
siauee, the provincial legislatures

Att.-Oen. or

INION.

may restrict or extend the degrees Att.-Gbn. of

of relationship beyond which Qcbmc v

parties will ct-ase to inherit ; they ^"'

may, as is the case in France,

decree that, in defuidt of legitimate

heirs, the estate of the tieceased

shall descend to his iUegitimat«

offspring, or they nuiy order that it

shall revert to some educational

or charitabU- institution, and by

their legislation they nuiy nutterially

affect or destroy altogether the

right of escheats.

" Under sec. 102 of the Con-
federation Act, all the rights and
revenues which the legislatures of
the several provinces had a right
to appropriate (except such as are
by the Act re.servetl for the re-
spective provinces, or which are
received under the special powers
conferred upon them by the Act)
form part of the consolidated reve-
nue of Canada ; and by sec. 12U all
the rights and revenues reserved
to the governments or legislatures
of the several provinces, and all
the rights and revenues received
by them under the special powers
conferretl upon them, form part of
the consolidated revenue fund of
Ciich province. The property d«'-
rived from the exercise of th".
right of escheat constituted a
revenue which, before confeilera-
tion, the several provinces had a
right to appropriate. It would,
therefore, belong to the Dominion
Government, unless specially re-
served to the provinces, or uidess
it came within the category of
tho.se rights which are received in
virtue of the special iK)wers con-
ferred by the Act upon the several
provinces. The only other .sec-
tions of the Act having reference
ti) the distribution of the assets of
the several provinces are sees. 107,
108, 109, 113, and 117, together
with schedides 3 and 4 annexed to
the Act. In none of these do 1
tind that the right to escheats is
s|)ecially reserved to the pro-
vinces, but, from what 1 have
already said, escheats seem to come
within that class of rev«aues which

I .;;

'Ii

M ^

Att.-Oki». op

QUKIIBC t',

Att.-(>k!», of
Dominion.

i I

502

B.N.A. ACT, H. 109.-PROV. ESCHEATS.

Hie derived from the exereise of
the itowers ^'p(•(•ially conferred on
tlie proviiuial lej;ishitiiros.

"If these lejjisliiliires lliive the
power to enliirne oi eiirtail to the
extent of tliis li^ht hy (^xltuidiii^
<ir restrietin^j; tlie rnnfje of parties
to wlioni the estate of (h'ceased
jiersoiis may l>e transmitted, or if
llieyean aholisli it aitop'ther, tiii'n
tlie existenei' of lliis rij^iit to
escheats is sidiji'ct to tiie authority
of the [irovineiai h';;islalm'es, and
the revenni' derived from it is col-
lected in virtue of the powers
speeiidly conferred on them hy tlu;
Act, since it depends on their

French.

TewHier, J. : 11 s'ugit d'une
question do ddshercnee. A tpii
les hiens d'nn individn deci'de sans
h^ritiers, dans lu province (h>
C^uehec, oii il avait son domicile,
et oQ il est dccede, et oii se
tn)nvcnt ces hiens, retonrnent-iKs ?
Est-C(? ail Gouvernement de liv
l)rovince de Quebec, ou an Gou-
vernement de la puissance dii
Canadu ?

II est hon de reinonter iiux
sources des loisdedeshcreiice pour
en faire rapplication. C<'s lois
formcnt j)artie dii droit civil, et ce
n'est (lu'un iikmIc de transmission
institute iioiir ceiix qui ne lai-ssent
|>as d'heritiers, on qui en laissent
qui tons repiidient la succession,
c'e.st la mome chosen ; en ce ens,
" cette succession, est acipiise an
soiiverain," siiivant I'expiH'ssion do
I'urticle (j;37 <le notre Code Civil, ou
"ces hiens appartienneiit an do-
nuiine public" siiivant I'expres-
sion conteniie dans I'article 401.

On pent s'apercevoir (pie dans
notre code et dans notre langage
judiciaire (m fait (jiielquefois un
etrange ahiis des mots le .Sonverain,
\v Domuine Pnlilic, la Couronne,
Sa Majeste la Heine, le IJoinaine
de I'KtHt, comme si ces mots
etaicnt synonymes. Ponrtant, ils no
l« sont pas ; et bieii soiivent ou se
serf dii noni de sa Ma je.ste |K>iir hii
douucr deM uttributiuus difiei-eutes.

iictiou whether this source of rcvc
line shall be maintained, and to
what extent, or whether it >liiill Ik.
abolished altogether. TIumv i>
liere no (iiiestion of pnMojfnliu' or
of sovereignty, but a iinre i|iit>ti(,ii
of interpretation of tlu! 15. X, \
Act. The Court is niiaiiiinuiis in
saying that the Doiiiinioii iiovtrii-
incut has no claim to the e>ttii(' in
<lispute, and that the petition of
the Hon. Ed. Jllake, as .Vitormv-
(Jeiicral for the Doiiiiuion. shonlil
have been dismissed. Tlie jiul.-.
inent of the court below is tlit iv-
fore reversed."

Translation.
Tessier, J. : This is a (lupstionol'
escheat. To whom does the estati ••
of a decea.sed individual, witlumt
heirs, in the province of t^iiil.i'i',
where he had his tlomicile, wiure
he died, and where his estntos aru
found, go f is it to the (fovonimoiit
of the province of *2uebec, or to
the Government of the Dominion
of Canada ?

It is well to go back to the
sources of laws of escheat in con-
sidering the (piestioii. 'J'iii'si' laws
formed part of the civil li^jlil, and
there is only one mode of ti'aiiMiii>-
sion instituted for those who Icavi'
no heirs, or who leave heirs all of
whom repudiate the succession. It
is the same thing. In this i'as(,
" this sill-cession reverts to tlu'
sovereign," following the imaniiifi
of the article (537 of onr t'ivii
Code, or these estates bcloiii; to
the Crown, following the uiuauiiig
contained in tht; article 101.

One can under.stand that in our
coiie and in our judicial hiiifjuagc
one makes sometimes a stnuige
abuse of the words the Sovereign,
the State Domain, the Crown, Her
Majesty the Queen, the rif,'hts cif
the Stiite, as if the.se words wen.'
synonymous. Nevertheless, tliev
are not ; aud very often they make
use of the name of Her Majesty
to give differaut prerogative!}.

B.N.A. ACT, H. 109.— I'RlOU RIGH'I'S OF ESCHEAT. S03

Lc droit (If (I(?8h^rpnce n'a ete, et

nVst cncori', (lu'im droit do rcvcr-
sidii jiimr i'iiii'L' rctoiiriuT Ics liit'iis i\
raiitoi'iti' i|iii l(^■4 aviiit fait Korlir
(III (liiiimiiif |nililic. (.'fttf aiitorito
rsl liit'ii ri'itn'SciitT'c, priiiiitivciiu'iit,
{larlcHuiivt'raiii; iiiais lesoiivcmiii,
iivcc ill saiietiou dii I'urieiiituit
iiii|ii''riiil, u-t-il coiifpro w. droit a
iliiiitivs? I! I'st ailinis i|iif Ich
(|rciil> ill' (ieshen'iRr apjMirti'iiaiiMil
nil C'liDiuia avant Tat'to de la coii-
lAJiiiitioii; s.i Majt'sto hi Keino et
li' rarli'iui'iit Jiu|iei'ial avaioiit done
(Icjii I'liit aiiaiidoii dc fcs droits h
la (■iiloiiic, ct il s'afjit do savoir
>iiii|ilciiu'iit, aiKiiU'l dos deux {joii-
vcriu'im'iils — k-jjoiiveriU'iiK'nt lede-
ral 111! ii'fjoiivfriieinciit provincial —
a|ii)aititnt il! revenii provenant de
(V limit (!(' dosliereuce. Cette
iint'stioii doit etre deoidee par
1 iiileriHvtiitioii do I'Acte Imperial
ik' la L'oiil'ederatiun du Canada,
liDi't 31 Viet. I'Impitre 3. La stiction
Id'J (lit : — •' 'I'oiis le.s droits et
nn ('Mils que Ics K'-gislatures respw-
livcs (111 Canada, de la Nouvelle
Kcds*', ft du Nouvean Brunswick,
avant ut a I'epoque de 1' Union,
a\aicnt lu pouxoir d'approprier,
mii/ceii.v reserves par le present
Itch' aii.v Ivifislatnrcs respectivcs
(lex l)ivviiicn; on qui scront perfiis
f)iir dies (iiiijormement aux pou-
vdirs spcx'iuiLv (jui lenr sont con-
fiii's pur le present acte, fornieront
nil i'oiiils cdu.-solide de reveuu pour
I'tiv approprie au service public en
(-'aiiada."

Voihi (loiic une exception dans
III clause preci'dente, et le revenii
prnvi'uniit do la desherence, n'est-il
pas iwrmi ceux conipris dans cette
exception, .savoir, parnii ccux re-
ferves aiix ligislutitres des pro-
vinces el i)en;mpareUes confarme-
nitnt aii.r pouvoirs speciaiix qui
leiir sont coiiferes par cet arte ?

II me scinhle ((ue cette exception
>« tionvc parfaitenient etablie par
1"^ sections 92, 109, et 117. La
■•^^^lii)!! 92 porte en tete " iwuvoirs
Pxeliisifs des Legislatures provin-
cittles," et puruii ces pouvuirs ex-

The right of escheat has only Att.-Gbn. or
been, and is still, only the right of <;'»"'bkc v.

• 1 ATr-lfFN OF

ivvi'i'sion, to rotiirn the ostiitfs to \. *„. * *
the authority which had given them
fniin tlu; Domain of the State. I'his
authority is well re|)resi'nted, ori-
ginally,by the sovereign ; but iiiis the
sovttreign, with the sanction of the
Imperial Parliament, conferred this
rigid on others ? It is a<lmiit«d
that these rights of escheat belongtHl
to Canada before the Act of Con-
federation; Her Ma jesty th" '.^ueen
and the Imperial Parlianu;iit had
then already given up these rights
to the colony, and the simple (pies-
tion is, to which of the two govern-
ments— the Federal Government
or the provincial Government —
belong the revenue accruing from
this right of escheat? This «iue8-
tion ought to be decided by tho
interpretation of the Imperial Act
for the Confederation of Canada,
30 «t 31 Vict. c. 3. Sec. 102 says :—
" All duties and revenues o\ er
which the resijective Legislatures of
Canmla, Nova Scotia, and New
Urunswick, before and at the
Union, had and have power of
appropriation, except such portions
thereof as are by this Act reserved
to the respective Legislatures of
the Provinces, or are raised by
them in accordance with the special
powers conferred on them l)y this
Act, shall form one Consolidated
Revenue fund to be appropriated
for the public service of Canada."

T'hero is then an exception in
the prece<ling elau.se, and the
revenui! accruing from escheat,
is it not amongst those contained
in this exception, namely, amongst
tho.se reserved to the Legislatures
of the Provinces, and raised by
them in conformity with the
Bi)ecial powers conferred on them
l>y this Act f

It api)ear8 to me that this ex-
ception is perfectly esbiblishetl by
the sections 92, 109, and 117.
Section 92 has for its title "ex-
clusive powers of the Provincial
Legislatures," and uinongBt these

I > !

I ■

\r\v

!': j

; 1

i ■!!'

Att.-Obn. of
QusniH' t'.
Att.-Okn. or
Dominion.

504

B.N.A. ACT, ^-. 109— COUTUMK OF PAIUS.

cliiHifs il ost Htiit\i<5 (|iu' "dans
t'luKiiif ProviiK'f In Lc'^^iMliituiH'
|)<iiirrii «^x<'luMiv»MiK'iif liiiri' ilt-M
lois relatives [suiis-Ht'ctioii l.'i] a In
jiro/irii'tt' vt uux tlroitn i-iviis <luii.s
la ])ro\ iiu'(>, ct [woiis-s('<'ti()ii 14] u
tiKlniinistt'iilioH ilv Injnstivv i/niis
III Proviiiri', 1/ compri.i In rrnitioii,
Iv miiintirii, rt r<ii'</iiin'aiifi<>n i/v
triltHnaii.v ilv Jiisfipv pour In
province, in/iiiit jurisiliction virile
et rriiiiiitelle." Iji loi dc lU's-
lu'renci' ii'cst (Ih'iiih' ivfjlc dii droit
civil ; lit lo^islatiin: di- Qiieixr a it;
droit oxfliisil' dc Hfatiii-r sur Ic
(U'^rt3 de sufi'cs.sibiiiti' vl sur lo
inud«> df Hiicecssiliiliti; ; iiiiisi rim
no r<'iii|iL'ch('rait il't'tt'iidrcpar uiu'
loi fe dt'fjre dc siu'ci'ssihiliti'' aiix
ciifaiits oil paroiits illuuiliiues on
inc'iin's aux iiistitiitions ({iii so
char^cnt (|iicl<]iii-loi.s di' rfdiicatioi)
(k'M inifaiits ilK'iritiiiifs.

Ct'tti' loi de desiionMiiM' nous a
efe traivsiniso |»ar rarticic 1(57 dc la
(,'oiitiniH'df I'aris, i|ui sc lit coiiinu'
suit : " Qiiand U' propriolairc pos-
scssiMir (riiiieun lierita<;(' va do vit-
a tropas, sans heirs iip|Min'iis, li-
Hant-Jiisticicr t-n la Justice diupu-l
Ics hcrita^rcs sunt tissis, pent et, liii
est loisibU; iceiix lieritages vaeans
et nun occiip^s, saisir el nii'ttri' en
sa main."

Si Ton considcre ci' droit do
difsheronce eoninio iin int;idoiit des
droits do la lianto justice, l'articleS)2
a doiiiio exclusivoniont radniinis-
tration do la justice aux provinces,
et le rovonu du droit do deslieronce
lui apfNirtiendrait.

Ki Ton considfere le droit do des
h6rence coinme uii accessoire do
revenu territorial, los sections 109
pt 117 |)articiilarisent et ^jonorali-
sont lo poiivoir des lofjislatiiros
provinciales sur les terres piih-
liques, et tons les accessories »)t
ncidents du revenu territorial.

En elTet, In section 109 (lit :
"Toutes los terros, mines, inino-
rniixet reserves royalesuppurtouunt
mix difTcreiitps provinces lors do
I'uuiou, et toutes Ich somnies il'ur-

exclusivo powerH it is cimetcd thm
"In each province the le^risliiti,,.,.
limy exclusively make laws in rdu.
tioii [ under siili-seot ion l.'{|(i)"|i|„.
jierty and civil ri;i;litH in th,. p,.,,.
vince," and (under suiiwilinii !('
to "the iidniinistratiouiir jnstici' in
tile I'rovince, including t he ediisiitii.
tioii, niainteiianco, and oi'irjinistition
of the courts ol' justice lor tin.
I'rovinco, both ol" civil and <'riiniiiiil
jurisdiction," The law of esi||,.|ii is
only a rule of civil ri^rjit. Th,.
Ijo;jislatureof liiieliec has tlieexi'lu.
sive rif;ht to lei,'islate as to llic ili..
ffreo (»l succession and the iiiihIm nf
succession; thus not liiiij; can |,iv.
vent it from exteiidin^j hy c. luwtlii*
dejjfree «»f successioii to illcjfiiiiniiic
children or relations, or even to ilic
institutions soiiu!tiiiieseliai'<reil with
the education of ille^ritiniHto rliil-
dren.

This law of escheat Ine. Iiicu
transmitted to us by article 1(17 nf
the Cunt iinio de I'aris, wliieli ii'ihIs
as follows : " When the pi()|iii(t(ii
of an estate pas.-es from jifr tn
death without apiiarciit heirs, th,'
Ilifjh Justiciary, in wIhw jiii>-
diction the estates are situnteti, \m
]iower and it is lawful for him to
sci/x' and take into his own liiimN
those vacant and imocciiiniil e>-
tatcs." [See Coutunie de Paris, li)
Laurioro, vol. 2, p. l.'lo.J

if this rifjht of eseheal i>
considered as an incident uf llir
ri}j;lit8 of lii<>;li justice, the arliiic'JL'
has given the admiiiistriitioii of
justice exclusively to the provimw,
and the income th-rivod from the
right of escheat woiilil belong to il.

If tliis right of escheat is ion-
sidored as an accessory of the ter-
ritorial revenue, the sections llW
and 117 particularise and gencrali><'
the power of the Provincial Lt'f,'i<-
latiires over the puldie hnids.Hiulnll
the accessories and incidents of the
territorial revenue.

In effect, the 109th section sap i
" All lands, mines, minerals and
royalties belonging to ditFereni
Provinces attlie time of the I'nion,
and all sums of money then due or

n.N.A. ACT, H. KW— POSITION OK LT-OOV.

505

ffciit lilors tliii'f* <m |Miyiil»lf.s pour
eet ti'iri's, iniiH's, iiiiiit'iikiix ct
ri'Kcrvi'S niyHl«'M, ii|>|M(iticiiilr(>iit
imv (lilli'iviiti'x proviiicc.M," t-ti-.

Kt lii*''tioii liT.j,'"''"*'''''''^""' '■•'
pouvoir, ajiHitf : " Li's divcrsos
iiriiviniTS conwrviTiiut ri'spcctivc-
iiM'iit toiili's Icurs pn)|)ricti''s piili-
li(|iics (lout il n'fst pus Miitrcinciit
,li,|HiM'' (Inns le piVHciit iicti', siijotii's
nil ilioit (111 Caiimlu <lc prt'iidri' Ics
liiics I'll Ics proprirlt's piilili(|ncs
(lout il iiiirii lifsoiii pour h's lortili-
iHtimis im la ili'-tViisi' ilu pays."

Ci'ttc ilisti'iliMtioii lie pouviiirs a
«iin npplicatioii pnur plusirurs
imtiv'siiifts. Aiiisi, IfS «'lTets i-oii-
ti>i|iii''s ell vert u <lfs l()isil<' la ilouauf
ii|>l)iirliciiiii'iit a la C'ouroniic, ou
Niiivci'iiiii, c'cst-a-tlirc au ^jdUvcriK'-
iiii'ht fiMlt'ial tlu (.'annda, <pii a lt>
ciiiilnili'dii principal; nuiis IcsdlVls
Milt's noli reclaim's, ct vciidiis par
'Hilivdc raiilorile jiidiciairc, appar-
liciiniMit iiussi II la C'uiiroiiiic, on
Miiivciiiiii, c'cst-a-ilii'c ail ^oiivcriic-
iiicnt JiKiil, ct Ic [iriKluit n'cst |»as
iviiii> u la caissc dc co dernier.
Lis ti'i'i'iiiiis rcpris sur la iik^' par
mwstioii, oil Ics isles sc foriiiaiit
linns Ics ticiivus dans les liinitcs des
|iruviiat's, iippartiennciit aiissi h
iliiii|m' province.

("est (lone en vain ipie Ton
I'liililit nil ralsoiinciiiciit sur cc ipie
il' liit'iiti'iiiiiit-Uouverneiir iic rc-
|iri'sciiic |uis la Heine, ni:iis quo
i'i«t Ic li(pii\eriieur-(Jent'ral ; oiii,
l"Mir Ics iittriimfs speeiaux qui iq)-
liiiiticimcnt a la royauto, ef (pic an
Mnjcstc pent dclefjiier ot roiiferer
\m,H en vcrtii dc, Sa Prero;];alivi'
Kovalc ct (Ic scs instructions, inais
linn |>ii,s pour les clioses sur les-
(|iii'llcs sii MajcHte la Uciiic ii'u
jiliis imciin pouvoir direct, conimu
«)nt Ics tcrres du donmiiic piililie,
lis liioits lie propricte, ct droits
'i^ils lie eha(pi(> Province. On
|Ktit sc scrvii- du noin dc sn Ma-
jcstt' \mr lendre la justice, pour
siiivrc Ics (lioits de propricte du
fi'mvcriicineiii Vvi>\ ineial. jmitcc ipic
^■wl nne portiou de I'autorito

payiililc for siieli lands, mines, ATT.-dRN. or

niincriils and roval n-scrvatioiis, Qi'rnitc v.

sliikll hcloiiK to ilic several Pro- Att.-<Ikn. or

viiices," etc. Dominion.

And tlie 1 ITtli section, jjeiicralis-

iii;; this power, adds ; " Tlic several

Pro\ inces shall retain all their re-
spective piililic pro)>crties which

are not otherwise dis|H)se(l of in

this A»'t, siilijecl to the rij^llt of

Canada to assume any lands or

piiidic properties required for forti-

ticatioiis or for tlu; defence of the

count ly."

This distriliiition of powers has

its application for several other

siiiijccts. Thus, clfi'cts coiiliscaled

liy virtue of the customs laws

licloii;; to the Crown or sovcrci^^ii,

that is to say, to the Kedcral (Go-
vernment of Canada, wliicli has

the control of the principal ; iiiit

<(o(mIs stolen 1111*1 not rcclainicil,

and sold liy order of the judicial

authority, lieloniralso to the Crown

or soverei|jii, that is to sjiy, to the

local ^rovcrnment, and (he proceeds

are not j^ivcii over to the treasury of

the latter. [iSVf. Itou|;litto lie tli(^

former, meaiiin<; the Dominion].
Ucehiimed lands recovered from the

sea hy accession, or islands forine<l
in the rivers within the boundiirics

of the Provinces, belong also to

each Province,

It is vain, therefore, to base an

ur^niinent iqwn the hypothesis that
the Iiieiit«Miant-Governor docs not
represent the Queen, hut tliat the
()ovcrnor-(}ciieral dot's. Ajjieed ho
d(M's,for the sin-cial attrihntcswhich
bcloiif; to royalty, and which Her
Majesty can delegate and confer
l»y, and in virtue of. Her lloyal
Prcrof^iitive and of her instructions,
but not for the thinjjs over which
Her Majesty the Queen has no
lonjjer any direct power, a.s, for
example, the lands of the i)ublic
domain, the rif»hts of pro|)crty,
and the civil rights of ciich Pro-
vince. One can make use of Her
Majesty 'n name to render justice,
to follow the rights of projx'rty of
the Provincial (lovcrnmeiit, because
it is a portion uf the »uvureigu

' :i l«
1 'f

' i\

506 B.N. A.

ACT, H.

lOJ).— l\SE OF QUEEN'S NAME.

Att.-Gek. or

AfT.-OEN. OF
DOMI.NIU.V.

iMr

Houvernine conferee mix Gouverne-
iin'iits I'loviiicinnx, ot (jiril.t out
droit (I't'Xt'ircr 8(>iis In iioin de sii
Miiji'sti'', Si roil voyait If (lonvfiiii-
iiu'iit I'roviiifial on \v.s anloriti's
indviiu'ialf.x, oil Ics tin. .lum.x, ela-
micr Ic iioiii (If s« Majt'sti", ilans
If.s iioursiiitfs uu'iiif civiles, an iioiii
till (Joiivcriifiiifiit Local, (|Ufl<|UfS-
uiis ,sf ri'crifraiciil iwiit-ftrc foiitro
cf s\\U', (|iii sfiait pfUt-i'trc plus
<"oir"ft fii iait, iiiais |)oiiirait eUv
foiisiilfru foiiiiuf iiii)>li(|uaiit iiiiu
iii<lc|u'ii(lancf i|iif Mo.s (ioiivcriif-
iiifiits i'rovim-iaiix n'oiit pas plus
<|iii' iiotro (ioiivfriifiiifiii Fedoral.

On (lit i|iif If liifiiti'iiaiit-
(JoiiNfriU'ur lit" repicsfiitf pas kii
Majfsto coiiiiiio If fioiivfnifiir-
(if iifral ; f'fst vrai dans lui sens
•ffiifi'al, niais iion pas If Si>n^. piir-
tieulifi' dfs attrilmtions (pii lui
sont doniifCN |)ar Tactf iinpt>i-iul;
dans ffs actfs pnrtioiilifis il ost
aussi Itii-n If ri'pri'M'iitapt dii Sou-
vfiaiii (pif I'f^it If (louvfiiifur-
(li'iu'nd iliins Ifs sifiiiifs. A <'0
••oiuptf-la, Ifs consfillfis U-^islatit's
.'fniifiit dfs pfisonnafU's plus iin-
portants ft plip. pi'fs df la rovaute
(pif iif If Sfi'uifiit Ifs liifutfiiant-
(iouvfiiifurs, parcf ipic la sfctioii
71i (lit, '• :•((• rout noniiiifs par In
liif iitcnant-douMTiu ur ail noni )l>;
.Sa Majfsto," "t Ofux (|iii sciairnt
aiiisi iKUiinit's sc trouMTaient aii-
dfssiis (111 poiivoir (;iii fii ivaliti''
Ifs flioisit. Cf sfiait uiif >inf;u-
lif !'(> anoiiiiiiif.

Dans If preninliulf dd'ac'tf dc In
fonifdt^'ration il est df f lari' ipic Ifs
proviiuvs out (k'sire i'oriiu'r uiif
union Ifdfralf, Ce noni snppost!
nil" I'odfration df poiivoirs, iiiu! dis-
triliution dfs pouvoiis cntri! di-
vfi'sfs pro\ iiiffs fiifr'f lies, ft un
fonsfi'vation dc ffi'tjiins droits
chiupif proviiiff (;onlfd('rff ; c'est
la coiilrf-partif d"uiif union li-jjis-
lati\t', dans la(pifll(! tons Ic pouvoirs
^oiit iviinis dans iinf sfiile li'^fisla-
t ire oil parlfnifut. L'Vsl cii vfitii
(It VA' t.j.itf iedfiutil' epic duKpif
proviiu'f a eonrfrvt'' d.'s droits
pi'o]irfs, ft pariii' ces droits se
trouvu If droit fXf lu8il' dii doujuiiif

authority conferral on the Pro-
viiuial Qovf rinncnts, wliivl, il,. y
havf thf rifilit to u>f uiKJcr |.|',.
naiuf ol' Her Majfsly. ji mir mhv
the I'roviufial (iovcniuunt oriln.
provincial aittlioriiics, or ihi. tiji,,,.
mils, suliordinaliii}j; Jlcr .Mnjoi; ■„
naiiif, fxcn in civil ]ir(i('('i'(liiiit«,'t„
the nan l* of the ].iocal (iommiiiiiciii,
soiiif would cry out pci'liii|isnpiiii).t
this style, which would !»• pcrlnips
niorc corifct in fact, Imt iiiij.'|ii h,.
considered as iinplyiiij; an iiidijMii.
dfiicf which oiu I'roviiuiiiKn ,
nifiits do not possfssaii} iiicirctlinii
our Federal Uoverniiifnt.

It is said that the {.iiiitiimiii-
(•lovernor does not rfpicscni l|,r
IMajcsty in the saiiif iiiaiiiici' us i>i'
(iovfrnor-Cifiifiid ; this i> triii> m
a fifiif nil sense, Inil not in tlir |uir.
tieuhir sense of the powci> wliiiL
arc jjiveu hy the Iniiteriiil Act;
in these particular Ads la- is ib
iniich the reprcscntatiM' df thr
Soverei};!! as is the (iovciiini--
tieiieral. Accordiiif; to tliisna^.
onin;;, the legislati\c ('(luncilidis
would 1k> more iniporliini |h'ix>ii.
a;;es, an;l nearer to roMilly, liwu
the Iiieiiteiiant-(i<i\crii(iis, liiciiiiv
the 72ii(l si'ftion says, " i'licy sliiill
lie appointed liy the Liciitciiiiiil-
tiovernor in the C^iiceiiV iiiiini',"
and those who would he !liii>' !i|>-
pointed would lind tlii'iiiN'l\i>
aliovc the power which reiilh i'Iu'H'
them. This wouM ne u sinjjuliir
anomaly.

In the |iroainl>lf of t'le Act of
Conffderation, it is dccliiicil llml
the I*ro\inces desire tiv Imm
a Ffdeiul rnioii. Tlii^'lcrm mi|i-
poses a Icdfiatioii of piiwcis, a
distriliiitioii of iHJWeis lii'twciii
dilTfrent provinces aiiioiiji lliciii'
.vfhfs, and a prfsfrvatioiml ciTliiiii
ri;.dits to etu'li conffdcinli'il I'l"-
vince ; it is a couniei|iiirt nl •'
legislative union in which iili iW
powi'rs arc rf-nnitfd into n "inillf
Ifi^lshitui'f or pailiaiiieiit. Il imd
virtue of this federal livaly ibl
fiicli I'roviiiff has piociviil ii>
own right.*, and among tlui*' luIiU
are to be found thi- cxcIii.-im rigiil

B.N.A. ACT, s. 109— MEANING OF CllOWN.

507

iiiililii' I't '111 (ionmincdorKtiit ilaiis
cliiuiiii' imivinco, ct imrini Ics ac-
ccssoinv- <lii tloiimiiu' piililic sn
tioiivc Ir ili'i>il 'If ili'-lii'ifiifo sujt't
an ('oiitn'ilf jiidiciairf, li'';,'islatir ft
iM'cnlil', lit' la I'roviiK'i' (li'(>ii(''lic<\
,IVii coni'liis i\\\u dans la [Jirsi'iitc?
iii«l;iui't' It's liifiis dc la Hiii-ci'ssioii
v.iciiiitt! tl'^ IVii J<j<ltaianl Fniscr,
(Miinvcr, t'li iiiculili'S I't I'll iin-
iiH'iilili'"', situi-s dans la I'l-ovinci-
(Ic i^iu'lu'c. a|i[)arlit'niicnt a la [tro-
viiicr lie l^iu'jluv, ri'iiic'sontcf dans
ctiiiwiiist' \MV lcnr»H;uifur-{;eiiiM<d
ilirriic l';'o\ini'f, <Mi cf (|iii est la
lui'iiif clioM', niais en stvln pins
iv>|M('tiii'iix, ([noiiin'il n(! suit |)as
|iliis coini't, par Ic profuiviir-
^'i'lieml tl'" Sa .Majt-sto jK)iir la
Province di' C^iir'lH'f.

of the publit! donmin and the do- Arr.-OKK. or
main of tho Stat*- in fach provinw, 9''''^^"^ "•
ami anion;^ I no accfssoiu's ol the i>„.,,..,
pnldii- domain is found tli<- riiclit
of csfhcat, sulijci't to judicial, \vji-
islatiM' and rxn-nliM' ron'rol,
ol thf l'io\inci' of (^iicipfc. I
conclndo in lht> pit'scnt instance
that the property of the vacnit
succession of the late Kdward
Fraser. nio^calde a:id imnioveaiile,
silimte in the Pioxince of (^uelicc,
lielon;;s to the Province of t^ueliec,
repri'sentcd in this cause liy tins
Attorney-deneial of this I'roxince,
or, what is the same tliini;, liut in
tone more n'spectful, alth()U;;h it
may not lie more accurate, l>y the
Atloinoy-deneral of Her Majesty
I'dl' llie i'ro\ince of (^ueliee.

[I'lie translation is the joint
work of M. I. Morley antl 10.
Jai'kHon. (leo. J*. Whct'ler, Ksij.,
Iiarrister-at-law, of Her M.ijesly's
Department of the ..' d'cial I'rivy
Conned, has kindly vcritied I'otli
French iind Knglish.J

Hiiiiisiy, .1.: "If till' technical
(|m'>ti()n iii>isted on nt the arfj'i-
iiii'iit wi'ic the oidy one in the ease,
ii rniijil ^circclv <;i\e ri>e to .'iny
liilliciiliy. In delinin^i the eXi'cn-
liw piiwcr. (he U. N. A. Act,
-'•c. H, ilcilares it to \est in the
'inivii, iMid when we c(Hne to the
li'^'i-bilivf power in see. oS it is
ilirliircil to lie vested in lhc<iuecn,
ilic Siijile, tind the ilou-e of
Oman.iiis. On the other hand.
tin- cxroiitivc power of the pr^
\'mvv* is decl;n-ed to lie vested m
iiii iilliccr cMJied the Lieiilenanl-
ieMr.iO'-. who is appointed liy the
tiiivcniiM-tieiieral I sec. ItPj,' and
III' lcj;i>lati\e power of the pro-
vince of (^iu'Ih-c is deehired to lie
^'•>te(l i'l th,. Lieincnant-tJovernor,
'lie he^i-liidve Council, auil the
H"|i>e of Asseudilv. This dis-
'intlion i,i kejit up, and the ollieers
"' the pp '.inies are so desijje.,ieil
is''<>. <i;i and l.MJ. Then as to

die wni.l •Clown,' llM'd in the

'^'"li'i its interpivtntiuii ean givu

rise to no dillicuty. The Crown
means the sovcrei<rn in whom indi-
vidnidly is vested all the prii|M'rty
of the Crown. Of course for the
purposes of administralion, as the
(ioveiinnent liecame more fully
organisetl, the revenueH of the
Crown had to lie appropriated in
diifereni way-;, and -.o we have the
privy purse and the civil list. la
like manner we have ue se,iarat(!
piM'ses of t'le dilTeren! colonics ;
and wueii V" 1 ■••i. of the dilTerent
colonies c'ai.i'Mi^ escheats as part
of their revenue, lliey are tiidy
claimine; that such portion of tlw
re\enue lef,'ally \ested in the
sovereign shall he applied to
colonial purposes. The ipiestioii
we have therefore to deeiile, is to
which of the two (iovc' .ineiitH
iiave the (jucen, Lords and Com-
mons ;ji\en cscheals? Tlii-. iples-
tion involves the e.vaniimition of
sees. lOL', I0!», and 117 oi' the
H. N. .\. Act. This At I vi^''* 'i""
It) H .^.ilUcully of eunstrnclion,

I Ii

iv'i

'!'F

.1 ;i

ATT.-nnv. or

QCKIIKC f.

Att.-Ukn. or

DOMISIOR.

508 B.N. A. ACT, H. ion.— DIPF("TS. IN CONSTRUCTION.

whic'li, iiorlmji.x, I mny e.xnpporntp,
but which is worthy of eoiisiclorn-
tioii, uiul thut in thf double
eiiuint'i'nioii which coiistiiiitly
o<-(ur» It i.s to bo found luouii-
luiitly n sccM. 01 and 92. It.s
inconvfuicncc then did not csciiim;
the obiocrviition of t\w frunuTH of
the Hill, for th<-y iuixc tcrniiuatcd
set'. !)1 by a saving <'laiisc of jireat
iniportani'c, whidi nialics sec. 5)2
subordinate to .sec. Ul. In tiio
sections we iiave now to consider,
we ha\f apiin the double enumera-
tion, but witliout tile saviiiji
cliiiise ill favour of eitiier enumera-
tion. Tiiis sec. 102 fjives tt) the
Dominion 'all duties and revenues,
except Mich porfions thereof as arc
liy this Act resorxt'd to the respec-
tive iefiislatiires of the ppjvinces,'
while .sec. 117jii\es to the s(!veral
provinces 'all their respe<-ti\e
piiiilic projierty not otherwise dis-
po.sed of by this Act.' Wliat is
included in ' re\cniies,' what is
doijiiiated iiy ' public property'?
Is the Dominion to lia\e nil the
rcNcniics, and are the provinces to
own only the naked juoperty r I
.see no mode of rc<'onciliii<; these
two sections but by referring; to
sec. 10!). There we find that by
pro|M'rty is intended lands, mines,
iiiinerals, and royalties. Now
what are ' lloyalties ' ? In the
hirp'st si'iisi- of the word they are
all roy i pivrof;ati\es. Jt is evi-
dent tuat the word is not used in
that sense, and it must be limited,
lint how far? It would lie piuni-
festly iiidefensibh' to limit if to
royalties arising from mines of
;fold and sil'cr, an<l tliirefore it
would seem fair to make ii extend
to all those minor prerojfiitixes of
(he Crown which formed [Mirt of
the property of the Crown. This
intcipietation is open to oltjec-
tion; but it is .jbvious that
sees lo2 and 117 cannot both be
inHintaiiH'd in their intr^rity, and
as they are both p-nrral s* etions
and there is no i<iaviu<; clauNc, the
int'-rpretution should i,)n \ail which
i(t uiu8t in accordance with the

othi-r sections of the Act. 1 think
therefore, that the appeal niiist Ik'
maintained, and i.e iiitcrvcnlioii
of tiie Minister of .liistiw Ih'
rejected."

.Sanborn, -T : ''This ciiso jn-

volves a (pu.'iticMi between tli.'

(lovernment of the pioviiic of

C^uebec and the (ioveniiiu'iit nt

the Dominion of Caiuula. Kdwupl

Fraser dicfl at Fraserville, in the

])rovince of (Quebec, on 2 Fch.

1H71, unmarried and witlunit

heirs, and intestate, CikIit an

(i.'{7 C. ('., his succession falls |„

the Crown. This is one (if tin.

minor prerogatives of the t'l

which, in colonies liiiviMir rt>|ii ^n.

tatixe le;fislatiircs, Im cm, , , Milijirt

to local legislation. Sw Cliittv,

I'rerog. p. 27. The sovercjijirs

individual prerogative is siilididi.

nated to his power a,s exciriwil :,

Parliament. This estate would uii-

doubtedly have fallen intu !' '

consolidated revenue liiiil it .

come open before the coiil'edcniildii

(tf the ]>rovinces. See (". ,*

c. 10. H. 5, al.so c. 111. •■. 1.

(piestion here is, (Uies it IipIuiijl' in

the provinci! of Ciiiebec or ic llu'

J)oiiiinion of Canada? 'I'lii' Hn

thing to be noticed is tlint llii<

minor prerogative came iiii.lfr iln

control of th»! late iMovimc of

Canada by virtue of the iiowr

conferred on that proNinceovvrilic

subject of properly and I'ivii rij;lii-

within the province. The iHiMiual

prerogative of the so\ei(i;;n «;i>

yiehled np to the proviiuc wli.ii

tie royid as.seiit was given to iIk

Avi '.) * ict c. IM., which dwlurK

thi't ". civil list is airepled li} IIt

Majesty instead <if all terriloriil

and otlnr revenues at the dixjuNil

of the t'rown arising in tk iiru-

viiice. Thesalary of the (iovcrmr-

(ieneral and the salnrie.s of iln'

judges which con. piised that iwi

list iiHve always lieen paM livili'

colonial Uoverniiieiils, ami iW

royal prerogatives thus yit'liWn'

the province Lave never Iwd" I'

drawn.

" Luder sec. U2, Mill-net. 1\

'hi 'lltJBIIII

B.N.A. ACT, H. 109.— MINOR PREROGATIVES.

509

of the B. N. A. Act, 1807, the
power to li'gislttto ovor the subject
of ijropt'ity iiml civil rifjhts within
each province was fjivcn to tlio
Ipjrisliit lire of t lie province. I hIit
spc. 102 of tilt) wiid Act, it is pro-
viiicd that 'nil duties and revenues
over which the respiH-tive lejrishi-
tiircs of Canada, Nova Scotia, and
Xew Hrunswick had power of
iliproiiriiilion, ex(e[)t such portions
thereof as are by that Act I'e.served
totiie respective le",'islatnre8 of tlie
\\To\ iiice, or are raised by them in
iiccordmre with the s/ieeiiil powers
cimfurrd on them by that Aet,
sliall form one consolidated revenue
.'mill, to iie appropriated for the
imlilic service of Canada.' Kscheats,
of the nut lire of t lie one in (piest ii >n,
lire siitijci't to the control of the
|iro\iiuial le^jislatiires. It is coiii-
|i(>teiit fertile I'arliiiiiient of Quebec
1,1 cstnlilisli the law relatinj; to
(Icseciits, and it may amend,
iiiotlily, or repeal the art. (i;J7 ol'
till' r'i\il Cede. It Miav be said
limt there 's n limit to t''is power
of provincial legislatioi, jver pro-
prty; tlmt it cannot Ciiaet tiiat
l)i<i]M'rty, which by the lni|)erial
.Vet is jjiven lo the Dominion, shall
licioii;; to the province. 'I'liis is
true, liut the public propertv {^ivi'U
lotiie Doiiiiuion isj^iven in express
terms (see sec. lt)H), and specilieil
ill tiie third ."icliediile appended to
tiic Aet, '.iiich as eaiuils, hurlioiii <,
lU'. 0\ersiieli pro|KMty the pr< -
\iiH'ii.l lef^islatiire has no |>ower to
lcj;i>ilate, liiit as liaviiifj the jiower
le l(';;ishite coneernin^j; property,
tlmt is private property, and civil
ii;.'iits within the i)ro\inee. The
riirlit tti (leterinine to whom the
pniHMty of II persun dyin;; intes-
lale without lieir.H shall fjo, is of
ilie wine nature iw the law of
•i'scent, ill faet it is a part of the
law of (le>eent, whiili I presume
110 one (jdiilits, |M'rtaiiis to the
jiirisiiietion of the provincial letfi^-
latiir»<s. Escheats, pro ilefeeto
siinfiuinig. .y„\y ffo to tlie Crown
with the «nme title as the person
leaving th.ni hod : » Kent's Coin.

127 ; Case of Capt. Gordon, Fester's Att.-Obk. or

Crown Law, p. 95. This proves ^ukbec v.

that the law Kovernin'' descents '\^--'^'»'- of

fjoverns this snbjeet. iJy sec. 109

of the .same Act, it is declared that

' all lands, iniiici, minerals, and

royalties bolonj^infj to the several

provinces of Caniula, Nova Scotia,

and New Hrunswick at the I'liion,

and all sums then due or payable

for such lands, mines, minerals, or

royalties, shall beloiij^ to the .several

provinces of Ont^irio, QucIm-c,

Nova Scotia, and New Hrunswick,

in which tin; same are situated or

arise.' Tiiis covers all reversions,

as well as e.vislinj^ liind.s, mines,

minerals, and royalties. Ksclieats

of the nature of the one in ques-
tion ar«' royalties: Hro. Law Diet.

1). .SI 7, where he delines royal-
ties to be riffhts and [)rer(>j!;ati\es

of the kiii^': 1 Hlaek 211.

" In the case of Dyker. Walford,

ilecided in the I*ri\y Council,

from till! Clianccrv Court, York,

Dec. 11, IHKi, 5 Moo. T. C. VM,

it was held tliat Jiiin ref/ii/iii in-
cluded personal e'Tects of a bastard

dyiii<5 intestate, and fjo to the kinj^.
It may bo .said that the word

royaltii's in this section is used in

a more restricted s.'use, tind by it

are intended rents or dues pavalile
for the ri^ilit of miniii;; for the
precious metals. I see no reason so

to restrict it, particularly as the same
rer^oii that would i;ive a cl'iss of
royal peripiisites to the provinces
wlieretheyarise wouldyi- 1 all. And
it is more rea.sonable to interpret
the wii d in its inimary than in its
.secoii lary and limited sense, whi di
is a nu'aiiinjf j^iveii to these rr.ai
rents by miners, tbini the true sense
of ilie word. I n connection with the
reason i ii{.' liefore adopted, .see. 117
has force, wiiicli says : ' The
severiil provinces ^hidl retain all
their respectixe piiiilic propertv not
otherwise disposed of in this Act,
subject to tile rifjht of Caiiadu to
Hssiime any lands or puhli'j pro-
perty re(piired for fort iflcat ions or
for the defence of the country.*
This, in connection with st-;!. lOtt

;;.!

WW,

'Ml

**!! 1

I\V'

i*:|

ii'

:!li;!i

! I'll

HNiP

Att.-Oks. op
queiikc v.
Ati'.-Cien. op
Dominion,

Att.-Gkn. or

OnTAKIO II.

Mkiicku.

610 B.N. A. ACT, s. 109.— FEUDAL LORD & ESCIIKATS.

and sdit'dnlf 3, stlunvs what hoi* of
pulilif property is {riven to tlin
Doiiiinioii, ami for whnt piii'poses.
"For these reasons tlic Court
•■oiisiders tliat tlie estate of Frasei',
if siiliject to eselieat, falls to the
l)r'>vim'e of (^iieliec. 'I'lH-rc is
t'V.MT reason why it should he so;
these e.selieats are of feiaial orijjin,
and the land re\erted to the feudal
lord or to the Crown, and, as Urown
in his Le^ial Maxims, p. .'{17, ex-
presses it, ' this is in acordanee
with the spii'it of the a;ieient feuilal
doetrine expressed in the maxim
ijifdif nulliiis <'.st,(.\f iloiiiiiii rci/i.i.'
All power which miftht at any
time have existed in the si-i{jnior
or ."overeijxii over lands iir reversion
of lands is now vested in the pro-
\in<-; where they U'e sitimte. 'I'his
points to the ri'Versiol: in ease of
lands; as respeets moveahle.s, it is
rea.sonahle tliat the same result
should he. It harmoni/.es with
'he jiurpo'cs and olijeets of llu^
law as indiealed hy the Aet ereatiiifj;
the two ,, irisdielioiis. 'J"he {general
jw»\vers anil revenues inid pulilie
[irojierty id' the Dominion have
iiiueli the same relation to those
of the |)ro\inees that the I'nited
Stall's lieai' to the several .States,
and it hus never heen jjretendul
that the eseheats pro (hftvto
sniii/iiiiiis lieeanie the pro|perty of
the I'nited States. The reversion,
as Well in personal as real estate,
lias Ireen always f^iven to the .Stale
within which the eselieat ari.ses.
This is assumed as law in the ease
of Cross f. I)e Valle, Dee. 1H(!;!,
tW S. C. V. S. (1 Wall) 1. It
will lie seen that the same reiison-
inj; has led to this eoneluKion as
has heen adopted in this ease.
Coi ley on Const. Lim. j). 52'),
s))eakiu<; ( f eminent domain, says :
' I'nder the peculiar American
system, the protection and ref^u-
lation of jirivate ri;ihls, privile;ics,
and immunit ies, in fienend, [/roperly
pertain to the .Stale governments,
and tho.se ijjovernments are expected
to r.'.nke |U'ov isioii for these eircum-
stuncos and necessities, winch are

usually proviiUid for their titizciis
throujih the exercivt of (iiiimiit
domain ; the riv:ht itself, it w„i,l,l
seem, nnist pertain to tho^e ;;n\(.||i.
men' also, rather than lo ||„.
•rovcrnment of the nalidii, nnd
siudi lias heen the coiiehision dI'
the authorities.' The Coiiil (|i.t,.r.
mines this (luestion as one Ikivvi'im
the jirovince and the Dniniiiidn
although it is .souiewlml eiiiiuibiv
pre.-^ented, oiio Attorney -ticmial
claiming on behalf of the (^iiicn
against another Attornev (icin'riil
<'liiiming on liehalf of liic (jiiciu.
We must understand this iis a
claim for the respective guvciii
meiit.i, and we must under^lainl )iv
the Queen what art. li.'ij (if tli.-
Code means \>y the Crown, nut tin.
t^ueeii of the Crown, Imt mic lU'
other of the governments vvliich
we decide to h(! tliat of tlii' pid.
\ ince. In doing this we do ikiI liml
it necessary to detertniiie vvliieli
government lias the right tniift|'„r
.'he l^ueeii, or whether liolii liinc
It is a (piestion as todi>triliiili(iniit'
rights and privileges hytiicH. X.
A. Act, and, from careful stiwly of
that Act, we think this iniiKir im-
rogative lielongs to tlie |iii)\iiiic
where it arises." Mis hiinislii]i
then gave the formal jiKl^nmit
of the Court.

Att. -(Ikn. ok Ontaiuo '■.
MKiirEit, in S. C. 14 Nov. IsM,
T) S. C. H. .VtH [roninier. Tnsdi,..
reau, and (Iwynne, .1.1., Sir W,
llitehio, C..J., and Strong, .!,
ilissi'iiting], reversed Ct. of A|iiNiil,
Ontario [Mos.s, C. .1. A., liiirlun,
I'atterson, and !\Ioriison, .l.l..\. ,
(i (). A. II. .YiCt, aiitl I'roiKlfiKii,
V.C., 20 (Irani I'JO; in 1'. Cliily
IH, ISH.'t, S App. Cas. 7(17; M

I.. .1. P. C.HI; •<ii I,. T. ;n2. Ill

that case it was held hy tlie.luiliiial
Committee, n versing tiie S. C,
that escheated laials in (hilariii vviif
within the IdOth section, iiiiil "l»-
'.inged," in the sense in which liii'*
woril is used in the U. .\'. A. Atl,
to the pr.)vince of Ontario mid iwi
to thu J)uuiiaiuu.

BN.A. ACT, 8. 109— RIGHT TO UNAPP. PROP. 511

TIu- ffn'ts iiH' tluis titat*"*! liy
I'lilttTSdii, .1. ; " 'i'lit' (iiu'stions I'o-
forc IIS iirisf upon ii ik-inurror by
Amln'W F. MtTciT, oiin of tlid
lyViidiint-i to nil iiiroriuiition t\U'A
\,\ till' Atloiiu^y-lri'iioral of Oii-
Ijirid for lli«' |>ur|>osc of olitairiinf>:
psscssioii of luii'l ill llif city of
Toronto, w'licli was tlio property
(if Amlrcw McrciT, wlio is now

,1, astd. 'riic facts witii wliic'i

\w imvc to tlciil art', thtTcforc,
those stntt'il ill tilt' iiifoiniatioM : —
Aiiilivw Mi'iccrdii'd in liiiif 1H71,
iiiti'stair, ami witlioiit li'aviii<; any
liiir or iii'.vt of iviii. Ilo was at
ihi' limi' of Ills di'atli seized in IVi-
>iiii|>l(' ol iIk' land. liiiin(>diate!y
atlfr ills dcii'll the defeiidiints en-
ti'i'cil into posM'ssion of tliu land
wiilioiit tile iMTinission or assent
(pf Ilir Maji'^fy, ami refused (o
;.'ivi' up possessiipii to Her Majesty
(ji' to till' inforioant aeiin;r on Iter
Irliair 'li tills pro\inee. In 1H7')
lilt.' (li'fi'iidniit, Andrew F. Mercer,
iii>liliited a suit ill ( 'iiancery a<;ainst
the Alloriiey-tieiieral, in wiiich a
ihcii'c was pronounced in accor
(lame with the prayer of his l>il!,
ri'1'irriiii.nt to llie .Master to iinpiire
whctlicr the late Andrew Mereer
Icll any licirsat law or next of kin
iiliii siir\iviii<;. IN'iidin^ tiiat in-
(|iiiry, »n issue was trietl at the
iiMaiiie of A. F. Mercer, which
ivMiltcd in Ii decree that A. 1"'.
Miicer was not the lawful son and
Liir at law or next of kin of
Aiiilrw Mercer, and that the de-
fendant, Mridfjet O'Heilly, tiie
iiioilicr ol A. F. .Mi'irer, was ne\er
iiiii ricd to Andrew Merct-r; i iid
iliivitiii;;' the inipiiry fornierly di-
nricd to lie proceeded with. Tlmt
";(•* (|(j|ii., and a decree was ninde,
"tier ii hcaiiu;,' on further ..irec-
lioiis (Ice'iiriii;; that Andrew Mer-
wrdied intestate and w'thont heirs
or next 111 kill, and that liy reason
tliiicol' his real and personal estate
imil Iteconic vested ill lier Majesty
111 ri^'hi of her royal pivrof^ativo.
Ilio (leiauirer was overruled liy
I'ldiiilloLt, V.C., u,„l il„, (lefen-
il'iuljA. F. Mvrc'.r, appuuliid troiu

th(Mlocish)n. IleciaiuuMl, 1st, tlmt Att.-Ukn. of

the application of tho law of cm- Ontauioii.

cheat to lands in this province is ^"•"^''«'

disputed; 2ud, that if the rijjht

exists it l>(doiiji>ed to the Duniiiiion

anil not to tlu^ province; Hid, that

tiie Crown can only j)r(>eeed Ity

coinnion law process of inipiisition

of oillce ; -Itli, that if in<[uisition of

ollicehiis hiHii rendered inineee.ssary

by the Ontario Act of 1S77, H.S.O.

c. !)l.,the onlv sulistitiited remedy

is an action ot ejeetini>nt, and the

Court of Chancery had therefore no

jurisdiction." The secoinl (pie -tioii

seemed the iiii'ioi'tant one ; and his

liordsliij) said he had little to add

to what was s: id in Attorney-

(ielieri.i of l^Uelie(! r. Attoriley-

(ieiieral of the Dominion, Church v.
Uhil .-,2 (l Ii. H. 2;MJ [.v«r ttf".i \.
niirton, .I.A., said lie found
no warrant in the H. N. A. Act
for the assertion so frequently
inadi- that all ri<;htM or property
not expressly <;iven t(j the pros iiico
passed to the Doininion. "On the
contrary, 1 take it to be clear that
the provinces retaine(l all property
and rijjhts whi(di were previously
vested in theiii under the coimti-
tulioiial .Vc's ihcn in force, except
those whiel, by the Ciiufederation
.Vet are taken fioin tlieiii and trans-
ferred to the l>ominioii. . . In
the first place the provinces al-
reaiiy existed with a constitution of
llu'ir own, with certain propertius,
rifihts, assets, and revenues, and
these could only be taken from
them liy their own «im.sent. or by
the le<;ishition of a superior nii-
thorily. All lands bclon^in;; to
the several prov iliees were, previous
to conl'edei'Mtidii, under our form or
system of jfovcrnmeiit, vested in the'
soveni^jn as a mere matter of form,
it lieinir a -Iniple trust for thu
beiielit of tiie provinces, lint were
then <:raiite(l in the (.jueen's name
by the scii'ial liieuteiiant-Uover-
nors of the provinces (with the
exception of (.'anada, which was
then under the immediate froverii-
nieiit of the OoveriKii-'feneral),
uud uiucc cuufuderutioii, iu u!i the

rWNi'

.,.Ay

'*' '^iR^

1 jUSI'*

•'rm

'ii

It^':

•r:i':

iii ilii;

Att.-Gen. or
Omtabio v.
Mbbccr.

M':i

512 B.N.A. ACT, ». 100— MEANING OF " ALL LANDS,"

provincfs, ^ ruuts from the Crown
of public laiuls nro iiiviuinbly iimdc
by the Lii'utenniit-Qovt rnors in ILt
Majesty's iiaim-, t-xccpt in the caso
of Indian lands, which, iK>in<r placctl
unih-r Dondiiiiin control, arc <rrant-
cd in Her Majesty's name by the
Qovernor-(Seneral. 'I'liesc lantis,
then, thon;;h nominally the pro-
jM-rty of the Crown, were in truth
and in fact the property of tlio
|)rovince, wimc entirely under the
control of the executive and Icfjis-
latureof the pi'ovincc, and althon<;h
the ri^iht of escheat, which is some-
times spoken of as a species of re-
version, was in the Crown, it was
always exercise<l for I lie benelit of
the parties licnelicially inten-slcd
in such reversiomiry interest, or,
in other words, the (}o\('riinient of
the purticuhu' province in which
the land was situate. This ri;,dit,
then, as well as the lands tla-nu
sclvcH, bcloii'tcd to the province,
and when we refer to the lni|ierial
Act dealing with these > iili'.'cts,
what do we lind ? Jly see. lOU,
all lands belon<;in;; to the pro\iiu-e
of Canada, and all sums then due
and payable for such lands, shall
belonfi to the several i)ro\ inccs of
Ontaiio and CJiubcc, in whieh the
sjime an- situate, sidijt'cl lo any
interest other than that of the pro-
vince in the same. The term 'all
lands' must be held to include
iiny interest which the pr<>\iiiee
then iield or was entitled to in the
lauds, iii'-liidin^ any reversionary
interest or interest incident to the
tcnuix'. If not, nodisposiliop what-
ever is nuuh-of such .•ntercst,and it
will remain in Her Majesty, not
iniprcs.sd with any tiiist, a result
wliich Would be too absurd to
suppose; but yt't that would be the
result, treat inj; it as a reversionary
interest or mere iiuident to the
tcnwrc, for in no portion of tln^ {.'on-
fcderation Aci iv it j^iven li the
Dominion 'I'h. ri);bt can iie n;-
garde<l »h u prerogative right to
this extent, and for this piu'pose
only, that it is couvcnicnl under
uur f>rui of govcruiutnt tLut the

whoUi domain should be vested
in Her Majesty, but purely and
.solely for the benelit of the nio.
vincc. The land is under the sole
control of the I)ominit)uaulli(iriii(s.
Her Majesty's name is used ly
them iti every grant from the
Crown in the S4iine way as in muny
other matters, as, for instance, in
every writ which under provineiul
legislation issues from the cimrt.sdf
hiw, . . . Neither, then, le. »
prerogative (d' the soverei;,ni iionn
an incident to the temu'e has the Do-
minion, in my opinion, been >liuvvn
lo be entitled. I prefer to |(la«!
my judgnu'Ut on the grouml I inu,.
indicated idxive rallicr tliiui tjiat
adopted by the Court <d' Ai)|M'al in
Queliec, although I think iIhiv
is no nuiterial diircrenee lutweeii
them."

In the S. C., Sir W. Uitehie,
C.J., was of opinion " it was not
intended by tht; ]J. N. A. Act to
deprive the provinces of the exe-
cutive and legislative contKd over
the public proju'rty <d' the province
or tlu^ incidents of such pr(i|Mitv
or other matters of a puieiy iiKai
nature, except sn-!i as are s|(eeiallv
taken from t'uun, and tlitit vviliiiii
the scojie of the executive ami
legislative powers eonlided to the
Domiiuon and provinces ri's|iii--
tively they are separate and imli-
pendent, neither having any rii;lil
to interfere witii or intrude on
those of the othei'. . , 1 do
not think, from a most earcl'nl con-
sideration of the IJ.N.A. Act.timlit
couUl have been the iii'iiition of
I'arlianu'.'it that while the pulilic
properties, and the revenues an<iilit'
pr<>i'eitls fiom the dispi.siiii)n lliciv-
of, should lu' ntaiiied bv tlie |iio-
vinces, and they .so continue lo
retain the position ociiiitietl !«
I In- surrender to I hem ol llm
Crown rigbfx, that on esclieiitlhe
escheated hinds should n<t nviri
to the provinces, but ilisliixl llnic-
of shoidd belong lu the Domiuioii
anil so the nuinageinent, control,
and disposition of what are coin-
niuidy called the Crown luuds uf

B.N.A. ACT, s. lOO.-TENURR IN SOCAOE.

513

l)nlilk'<limiiiiiilaiMlsiii(lii'|int\iiici's
(.oiisi'diiciillv 111' (lividcd l)y lliu
wiilidiawiirol' llif I'sclifiiti-il lands
from ilicroiilrol dI tliodovcrmiiciit
anil Ic^ri"'!!'!"" ••' ''"' |>ri>\iiic('H,
aiiihcftcil in llif I'arlianii'nt (ti' tln!
Dmiiiiiion. Willi Sir \V. ISitfliic,
l'..l., SlriiM^'. .I.,ii;;ifcd. FonrniiT,
Tii-i'li('iviiM,iin(l(Jwvnnt',.l.l.,i»'«l<'d
ilu'ir (iiiinion on tlif ^^ronnd lliiit
aiivivMiiiic (h'rlM'd from osi-liojils
In SIC'. ll»2 wcrt' pliiffd under I lie
imiliol 1)1' ilii- rarliiiinont of
Caimdii lis |mrl of tlie consiili-
lialcil ivuniic I if ("aiuida .

1MS3, .Iiilv IH. In Jilt' l'ri\.v
('(iiiiicil, Karl of Selliornc, li.C,
wiiiMMivciiil llif jiidfinu'iit [lliiMo
lii'iiiL' alsd iircsfiit Sir U. Peacock,
Sir M K. Sniilli, Sir It. (."oilier,
.*»ir K. Coiicli, and Sir A. Holi-
liciiisi,'], sail I : " The (inestioii to l)e
iliti'iiiiiiH d in lliis ease, is wliotiier
laiiil< ill till' |irii\ince of Ontario,
ivlifatiil til the Crown for defect
nt lii'ii'.s, 'lielDiig' (in till* sense
ill wliicli the \erl> is nsed in
till' Ifiilish Nortli Anierieu Act,
hii?) Ill the province of Ontario
III III tlu! Doniinii'ii of Ciuuuhi.

"By the !iii|ierial Statute 31
(ii(ir<.'i' IlI.e. ,'U. s. 13, it was pro-
viiiiij tliat all hinds whieli shiiiild
!»■ llitri'iirier ;;ianttd, within thi!
IHiiviiin I't' rpper Canada (now
"niarid), siumlit lie <;ranled in free
ami ('iMiiiiiiiii s(i('a;{e, in likir manner
a- laiiils were then holilen in free
iiimI ciiiiiiaiin soeti^re in Kn<;land.
rill' iii'ijiii.ieiit liefore their hord-
'lci|is, III! liiiili sides, proceeih-'"
i.|mii the a.ssniiiption that the hi ii
'i"« ill (|iie.sti(.n were so liolih'n.

"All land in Kn^hmd, in the
ImiiiN of luiy snlijeet, was holden
"I •unit' Idi'd liy some kind of ser-
>i". and wii'. deemed in law to
'■::■" I'lrii (iri;;inilly derived from
'III I' i.wii. • ill', I therefore the kinjj
««> si.vcrcifii. lord, or hird para-
i""iMil.''illier iiiei!;ateor immediate,
"I nil mid iviTV parcel of land
W|ili;iitlM. iviilin' (Co. hitt. (!").\).
•Ill' kin;; had ' iloiiiiuiidn liirnl-
"III,' llu' siil,|,.,'( • citminium ntiU "
('4'i/', Ia|. Ihe word ' tenure'

sij^nilietl this rohition of tenant to Att.-Ubv. op
lord. Free or common socnsie V'tabioi'.

c .1 • . in Mkuckb.

was one ot the ancient modes ot

tenure (' A man may hold of liis
loril by fealty only, and such
tenure is tenure in soeajfe,' Litt,
sec. 118), which liy the statnto
12 Ch. Il.e. 'Jl. was siih.stitufed
throu<r|iout Kn;;laiid for the former
tenures iiy kni^^ht .service and by
.soca;;*' ni cupite of the kin;,',
and relieved from various feudal
liiinit'us. Sonu', howcvci", of thi'
former incidents were expressly
preserved by that statute, and
others (escheat bein^jonf! of them),
thon^^h not ex|)ressly nu-ntiotied,
were not taken away.

" ' Escheat is a word of art, anil
si};nilieth propeily when by acci-
dent the lands fall to the lord of
whom tiiey are holden, in which
case we av the fee; is escheat-
ed' (Co. Lilt. l.'lA). Elsewhere
{iliid , \)'2\\) it is called *ii easiml
pi'otit,' as happenini; to the lord
' by chance am! ;:!dooked for.'
'I'lie writ ot escheat, when tho
teiiiint died without heirs, was in
this form: — 'The kin;^ to tho
sheriff, &c. Command A., Siv.,
that he render to H. ten acres of
laiid, with the appurtenances, in
N., which C. iield of liim, and
."hieh on;,'ht to revert to him the
said IJ. as his escheat, for thattlu!
Slid C. died without heirs' (F. \.
1). lit I'). If there was a inesni!
lord, the esclieat was to him; if
not, to the kin;;.

" Fiom the us(? of tin' wiad ' re-
vert,' in the writ of escheat, is
manifestly derived the Ian;rua;;o
of some authorities which speak of
escheat as a species of ' reversion.'
There cannot, in the usual and
projM'r .sense of the t«!rm, be ii
reversion expectant upon an estate
ill fee simple. What is meant is
that, wiien there is no longer any
tenant, the land returns, by reason
of tenure, to the lord by wliom, or
liy whose pi'cdeees.sors in title, the
tenure was created. Other writers
speak of the lord as taking it by
way of succession or inheritance,

K K

'\\\--

511

n.N.A. ACT, s. 109.— CIVIL LIST ACTS.

Att.-0«n. of
Ontario c.
Mkiic-kii.

M: !:'!

. !

I i

■!•<

lis it' fi'din llif Icniuil, wliirli is ccr-
tiiiiiiy not lU'ciinitf. 'I'lu* truant's
cstntc (siilijcct to miv cliarfjos ii|i(tii
it wliicii lie iimv Imvi' ci-fiittMl) liiis
cDiiii' to nil ciiil, mill tlif lord is in
]>\ liis own ri<xiit.

" The pnitits, ami tilt* luoct-eils of
salt's, of laixls os<'hoati>(l to tlit!
Crown, wore in Enpiland p«ut of
till' casual lii-r .litary ri'Vi'iiiics of
till' Crown, ami (siilijfcf to tliosi'
|MiW('rs of ilisposilion wliicli were
icsi'ivi'il to tlifi sovoiH'i;;!! I»y tlin
Ui'strainiii}^ ami Civil List Acts)
tlicv were aiiion;^ tlic lici'c<lita! v
rcM-niics |ilacctl at the ilisposal of
I'arliaiiicnt liy the Civil List Acts
passed at the lic^innin;; of the
present and the last precediiif;
reii;n. Those Acts extended, ox-
presslv, to all such casual revenues
arisin^^f in any of the colonies or
foreifrn possessions of the Crown.
Hut the rifjht of the several
colonial le<ris!atiires to appropriate
and deal with them, within their
respect i\e territorial limits, was
recof^nised liy the Imperial .Statute
I") Si Id ViCt. c. ;<!)., and hy an
earlier Im|N>rial .StJitntc (10 & 11
Vict. c. 71), conlirmiiij^ the
Canaihi Ci\il List .\et, passed in
I8M) after the iinioii of l'p|M'rai)d
Lower Canada, liy which Act the
provision made liy the CohaiiiU
Le;;islaliirt for the I'harfjes of the
Koyal (ioxeriiment ill Canada was
accepted and taken, instead of ' all
territorial ai.d other revenues,'
then at the disposal of the Crown,
arisiiiji in that province; over
which (as to three-tlfths |ierina-
neiitly, ami us to two-lifths diiriii;^
the life of the (^iiecn, ami fill' live
years afterwards) the lef^jislatnrc
of the province was to have full
power of api :;'opriati(Hi. It may
lilt remarked that the Civil List
Acts of the province of Canada
«'oiitaiiied no reservation of ew-
cheals, similar to m-c. I'J of each of
till! lni|M'rial Ci\il List Acts above
referred to. It mii.st have hceii
purposely omitted, in (uder that
esi'lieats iiii';;lit lie dealt with liy
the Uovernment ur LegiHiature of

Caiiadi! and not liv tin' ('i

■own,

ill whose disposition i|„.v „|||_|
have? remained if they lutij i,„t In,.,,
in that of the IJidted I'lovincc i)f
Canada.

"When, therefore, the Hiiti,||
North America Act of |M(i7 |iii>si|
the revenue arising fiuni all cs.
clients to the Crown, within thr
then province of Canada, was* luli.
jcct to the disposal and ap|ii()|iiia-
tion of the Canadian lie^rislatuiv.

" That Act united into on,.
' Dominion,' iimler the lunni' i.|
' Canada,' the former proviiicrs nf
Camiihi (which it siihdiviiliil jm,,
till two iii'W provinces of OiUdiid
and t^neliec, correspondiiij,' wiili
what had lieen Itefore IMK) rpiNr
and Lower Canada), N'uvu Svnuu^
and New Brunswick. It isIhI,.
lisheil a Dominion (inveriiiiu'ntiiiKl
Legislature and provincinl (inMin
ments and Legislatures, iiiakiii<.'
such n division ami it|)|iiii'tioiiiiii'iii
lietween them of powers. ns|n]ii.i
hilities, and rights as was t!i(iii;'lii
expedient. In particular, it im
po.sed u|K)n the Doiuiiiioii tin'
chargfi of the general piiMir
debts of the several prc-exi-liii;'
provinces, and ve.ted in tin' lli
minion (subject to excepliiiii«, m
which the present ipiesiion inniiilv
turns) the general piiMic ri'Mniii",
as then existing, of those pnivimrv
This was done by sec. lOlJ nf ilir
Act, <vliieh is in tli se words;— ' .\ll
duties and revenues, over wliidi
the res|>ective Iiegisiatiiii'> if
Canatla, Nova .Scotia, and .Vm
Hriinswiek, ln'fore and iit iW
Union, had and have iHwtr of
appro] iriat ion, except such |)iiiiiiiii<
thi'reof as are by this Act ic^'mil
to the respective legislnliircsdl'lln-
provinces, or are raisi'd liy llnni in
accordance with the s|K(i.il |m«if<
coid'erred upon them hy tiii- A'l,
shall form one eonsoruialiil n'>f
line fund, to be appiopiialiil fiT
the public service of ("miiuiii, m
the manner, and siibjtrt t.i ib-
charges, in this Act previdni.'

" If there had been i ■.liiiii'- in
th" Act leading to a c<JMtrar) wi-

I ) I,' i

B.XA ACT, s. ion— THIS SEf'TIOX EXAMIXKD. 'tMt

"ff^

ilii>iipii,llii'ir li'irtMiip"^ iiii<,'lit lm\c
1,11111(1 it iliniciilt to liiilil that tlic
rtdiil 'ri'viiiii'H.' ill this M'ction,
,|i,| nut iiii'ltiili- tcrritiirial as well
,i> iiliitT icMMHU's ; or lliiit a title
j„ till- Diiiiiinion to tlif ivvciiiics
iiiisin^' t'i'oiii piililic laiiilH did not
lairv with it a rifjlit of disposal
1111(1 ii|ipr(>pi'iMtioii over tlio lands
tli('iiiM'l\c>. I'lih-ss, tlu'ivl'oev, tiic
iiiMiiil rcvciiiu', arising from lands
rH'licatcd to the Crown iiflcr the
riiidii. is ('xc(»pt*'d and rcscrvrd to
ihr proNiiiciiil l('<;islatinvs, within
ihc mcaiiin;.' of this section, it
would sccin to follow that it lie-
|iiiii;> to the eoiisoli(lat«'d leveiiiie
liiiiil 1)1' the Doiiiinion. If it is so
i\uc|it('(l and reserved, it falls
ttilliiii >(•(•. rJCi of the Act, whicli
'iiovidcd tliiil ' siieli portions of the
ilulics and ic\etnies, over which
ill- r(>p('cti\e Icfiislatiires of
t'aimdii, Nova Scotia, and New
ltriiii>wick had, licl'ore the I'liion,
li.iHiT of appropriation, as are hy
ilii» Act icx'ived to the respective
iioMiniiicnIs or le;;islatiires of tlie
|iiiiviiit't's, iiiid all (hities and reve-
imcs raised liy them in accordance
«iili the special powers conf(>rred
ii|«iii tliciii liy this Act, shall, in
i:iili pidviiicc, I'oi'iii one consoli-
Jiili'd icvciMic fund, to iie appro-
priated i'or the piihlic service of
ilic province.'

" riicir lionlships, for the
KiiMiiis alidvc -tatcd, assume the
liiinlcii of pi-Dvinji that escheats,
"iilccMiuciil Id the Tnioii, are
«iliiiii the sdiirccs of rev(Mme ex-
'■i|itcd and reserved to tlie pro-
unc("*, td rest u|>oii the provinces.
Hilt, if all didiiiary territorial re-
^'iiiics arising; within tiie pro-
viiHcsuiv so excepted and reserved,
II is not (/ /irlori prohalile that
'liis particular kind of casnul
I'lTilorial revenue (luit heiiij^ ex-
I'lO'lv pi-dvidcMl for) woidd lia\»(
'"■'•". ""less l,y accident and over-
;-ii'lit, transferred to the Dominion,
lilt' words df the statute n.ust
"■'■I'lve their proper con.stnictitm,
«lialcvei thai may Im- ; hut, if tliis
'- d(ail,ili,l. ,i„. ,„„r^. fonsisteiit

and in-ol>ahle construction oiiglit, Arr.-UKN.or

in their liordsliips' opinion, to he "''taiiio i'.

prelerrcd. And it is a cireuni-

staiice not without wei;r|it in the

same direction, that, while ' diitii'.x

and r(!\ ('lines ' only are appro-
priated to the Dominion, the puhli«;

pro|M'rty its(df, hy which territorial

reveim<»s are produced (as distinct

from the n-veiiiies arising from it),

is found to In* appropriated to the

proxinecH

"Tlie words of exception in

sec. 102 refer to revenues of two

kinds: (I) such portions of the

pre-exisliny 'duties and revenues'

as were by the Act ' reservetl to

the H'spective lejjislatures of the

provinces'; and (li) such duties

and revenues as nii^lit he ' raised

liy them, in a* rdaiice with tlu>

H|N'cial powers conferred on them

hyliie A<'l.' It is with the former

only of these two kinds of rev»!-
niies that their liordships art> now

eoncerned ; the latter hein^ the
produce of that jhiwiM' of 'direct
taxation within the provinces, in
ordi'r to the raisino; of u reveinie
for provincial purposes,' whidi is
conferred upon the provincial
lcj;islaturt\s hy .sec. It'J of tlie At;t.

" 'I'here is only one clause in the
Act l>y whi<'h any sources of reve-
nue ap|M'ar to lie distinctly re-
served to the provinces, viz., the
KMMh section : — ' Ail hinds, mines,
miiKials, and royalties lK'hm;.'inj»
to the several provinces of Canada,
Nova Scotia, and New IJrunswick,
at the rnioii, and all sums then
due or payahle for such lands,
mines, minerals, or royalties, shall
hcdoiiK to the several provinces of
Ontario, (iuulH'c, Nova Scotia, and
New Hrunswick, in which the
same are silnat(^ or arise, suhject to
any trusts existiii^j; in res|R'ct
thereof, and to any interest other
than that of the judvincc in the
same.' The provincial h'fiislaturcs
are not, in terms, here mentioned ;
hut the words 'shall lndc.it; to the
several provinces' arc olivioiisly
Kjuivah'iit tothor^' used in see. 126,
' are by this Act reserved to the

K K 2

•:'!i

')H) UNA. ACT, H 100 — lERRlTORIAL Uf^VP^M'K,

Arr.-aKN. OP
Ontahio c.
Mkkl'kk,

!,,:

!|i

i'iy

i(S|n'ctivo ^ovcrniiK'iit.M or li';'islii-
liiiTH (if the iddvinccM." 'I'liiil lliry
(III not n|>|ily to nil lands liclil us
pi'ixatc |ii'(i|i<'rly at the time of tlu<
Union seems clear from the corre-
HIMindin^ lan;;ua<;e of see. 12^), ' no
lanils or properly livlonijiny to
Canada, or any province, shall lie
liiilile to ta.xatioii ' ; where |Mtl>liu
pro|H'rty oidy must lie intended.
They evidently mean lands, ite.,
which were, at the time of the
I'niiin, in .some sense, and to some
e.xlent, piihlici juris : and, in this
respect, they rc('ei\«' illustration
from another section, the 117th
(which their Fiordships do not re-
;fard as otherwise very material),
' the several provint'cs shall letain
all their rcs|M'ctivey>«/<//'c property,
not (itherwise disposed of hy this
Act, sniiject to the ri;;ht of Canada
to assume any liniih or /mhlic
/>r<i/ii r/t/ re(piire(l foi' fortitications
or for the dcfenct* of thu »!ountry.'
"Their Lordships are not .sati.s-
tied that .si'c. lOL', when it speaks
of certnin portions of the then
e.xistin;; duties and re\enues as
' reserved to the respective lejjisla-
turcs of the provinces,' oufjht to
lie understood as referring to tlie
powers of pi'o\ inciid le<rishition
coid'encd liy sec. ',)'2. Even, how-
ever, if this were so held, the fact
that exclusive powers of le<rislation
Were fjiven to the pi'ovino-s as to
'the mana;;ement and .sale of the
pulilic lands luloiiijinij to the
pi-o\ ince,' would still leave it neces-
sary to resort to sec. lO'.t in order
to determine what tliose public;
lands were. The extent of thu
provincial power of leijislation
oxer ' properly and <'ivil ri;(hts in
the province ' cannot le as4!ert4iin»'d
witliout at the suine time uscer-
tiiinin<; the |M>wer and rights of
the Dominion under s(;cs. !)1 and
102, and therefore cannot throw
much light upon the extent of tlio
cxccjitions and reservations now in
question.

"It wa.s not di.sputed, iu the
argument for the Dominion at tbu
luir, that nil territorial reveDues

arising within each proviiicc fmui
'lands' (in which term muyt U'
coin|iruhended all estates in land)
which, at the time of the Cnidn,
lielonged to the Crown, were rf-
served to tiie respective iprnvinccs
liy see, lt>9; and it was ii(ltiiittc,|
that no distinction could, in t|,at
res|H'ct, lie nnule lu'twcen Crown
huids then nngranted and lamN
which had previously rc\ cried lo
the Crown hy escheat, lint it was
insi.sted that a line wiis drawn at
the date of the Union, and ihiil tln'
word.s were not siillicicnl in ic
serve any lands id'tervvnrds rs.
cheated, which, at the linn; of tlic
Union, were in private liiuuls, and
did not then lielong to the Ciovvn.
" If the word ' lands ' li.nl .stood
idone, it might have hecn (lilllvnit
to resist tlie force of this aifjii.
nienl. It would have liecn (lilliculi
to say that the right of tliu lonl
paramount to future esclieuts was
' land helonging tu him ' nt a tinic
when the fee simple was .still in
tlie freeholder. If capable of W\u<^
de.scrilHid as an interest in land, it
was cerUiinly not a |ircsont piu-
priet4U'y right to the land ilsi'll'.
'i'lu; word ' lands,' however, docs
not here stjind alone. Tlic rial
((uestion is as to the eilVct ot ilir
words ' lands, mines, minerals, ainl
royalties' taken together. In iln'
Court of ApiM'al in the province uf
(Quebec it has been held lliat tiasc
words ar(! sullicient to puss sulist-
(pieiit escheats ; and for this |)iir-
pos(! stress was laid by .some a!
bast of the learned judges of tiait
court (the others not dissenliii);)
on the particular word 'royaltiis'
in this context. If 'lands and
royalties ' oidy had Iiih-ii niL-ntieiini
(vvithout ' nunes ' and ' minerals'),
it would have been dear that liie
right of escheats (whenever tiny
might fall), incident at the liuieuf
the Union to the tenure of all sue-
age lands held from the (.'i'o«'ii,
was a * royalty ' then bel()Mj;iug ti^
the Crown within the proviiRO, so
as to be reserved to the province
hy this section and excepted t'ruui

H.\.A. ACT, s. lOJ).— MKAMINJi OF " MOVAI/riKS." 517

s<K'. I(fi. At'tfrfiill «'(insi(lt'rntiiiM,
ihi'ir FiOiilsliipH nirvv*' wiMi tlic
(jiirlK'c Ciiurt ill tliiiikiii^ that tli*-
iiii'iitioiiiit' ' iniiios' 1111(1 iiiiiicriiN'
in tliis (-(iiitcxt is not cnuii^li to
ilcprive tln! word ' royalti<'H ' of
wiiat would oflicrwiso linvc Ik-cii
iis prnjM'r rorco. It is tnio (as
wiix ()lis(TVc<l in HoiiU! of tlm
iipinioiis di' tilt! majority of tlic
jiidp's ill till' Sii|>rciii(' Coni't of
(iiiiiiilii) that lliis word 'royalties,'
ill iiiiiiiii}; jiraiits or leases (wlirt her
i;niiiii'il liy the Crown or liy a
siiliit'cl), liMS often a s|H'eial sense,
•■i;;iiii'viii;; that |iart of the rril-
ilimliim which is varialile, and
(ii'lM'iiils ii|Kiii the qiiantity of
iiiiiii'iiils •{otteii, [t is also true
lliiit ill Ci'iiwii ;ri'aiits of iiiiid in
iii'ilisli Xdi'tli Ainei'iea the prae-
lici' liiis ;;('iieriilly lieen to reservti
to till' Crown, not only royal mines,
|irii|H'ily so called, Itut minerals
P'lii'nilly; aiiii that mining grants
(ii- liases had, iiefore the Union,
Iki'ii iiiikIc liy the Crown liotii in
N'livH Sc'iilia and in New Uriiiis-
wick; and that in two Acts of tho
pidviiicc of NTova Seotia (one as
liM'iiiil iiiiiies and the other lis to
iniiii's mid minerals generally) the
word ' royiiltii;s ' had lieen used in
its siH'ciiil sense as a|>|ilicalde to
till' variulile reddcnda in mininw
jinints or leases. Another Nova
Si'iilia Act of IHH), siirrench'rinfr
til tlip |)ioviiicial K'gisltttim' the
tirritorial and casual revenues of
till' Crown arising within the pro-
viuet', wius also referrwl to by
Mr. .Fiistice Gwynne. But the
iL'niis of that Aet were very
i'iiiiilar to tluise now under con-
fix ifration ; and if « royalties,' in
llio context which we have here to
lonsider, do not neoe.ssarily and
Nilfly uionn reddendo in mining
gniiiLs or leases, neither may they
'"' that statute.

" It apiiears, however, to their
I'Ordshiiis to he u fallacy to assnme
inat, because the word ' royalties '
"'this context would not he in-
uBioioiis or insensible, if it were
'■•'pirded as having reference to

mines and iniiiends, it ought, there-
fore, to be limited to those sub-
jects. They see no reason why it
should not have its primary and
appropriate sense, as to (at all
events) (ill the subjects with which
it is here found assiKiiated — lands,
as well as mines and minerals.
Even as to mines and minerals, it
here necessarily signidcs rights be-
longing to the Crown, ^M/c vDioHtr.
The general subject of the whole
Hection is of a high political nature ;
it is the attriliiition of royal terri-
torial rights, for piirpo.ses of reve-
nue and government, to the pro-
vinces in which they are situate
or arise. It is a sound iiiaxim of
law, that every word ought, priiiid
ftiric, to be construed in its pri-
mary and naturiil sense, unless a
secondary or more limited sense is
reipiircd liy the subject or the
conte.xt. In its primary and
Miitiiral sen.se, ' royalties' is merely
the Knglish translation or eqiiiMi-
leiit of ' rif/'tlif lifts,' \/nrii rrt/ii-
lid.'' \jiir<i reijiii.' (See in vote
' royalties,' Cowel's ' Interpreter ';
Wharton's Law Lexicon ; Tomlins'
and Jacobs' Law Dictionaries.)
' livijiiliii ' and * rvijaliliites^ ac-
cording to Ducangc, are ^ jura
rvyia'; and S|elniaii ((ihiss.
Arch.) .says, * Itvyalia diciintiir
jam omiiiii ml fisc iin s/iectniifia.'
'J'he subject was disciis.sed, with
much fulness of learning, in Dyke
V. Walford (5 Moo. V C. (i;{|),
where a Crown grant of jiini
reffniifi, belonging to the County
I'alatine of Lancast*'r, wa,s held to
pass the right to Itoiiii racdntin.
•That it is a jus,' (said Mr. p]llis,
in his able argument, ihid., p. 180),
' is indisput^dde ; it must also be
rer/nle ; for the Crown holds it
generally through England by
royal prerogative, and it goi's to
the successor of the Crown, not to
the heir or personal representative
of the sovereign. It stands on the
same footing as the right to
escheats, to the land between high
and low water mark, to felons'
goods, to treasure trovjs, and other

.\tt.-(1rn. ur
I Intakio v.
Mkuckb.

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Att.-Gen. of
Ontario v.
Merckr.

518 I3.N.A. ACT, s. 109.— ESCHEATS IN P. E. I.

nnulogous ri<;hts.' Witli this
statement of the hiw tlicir Lord-
ships agree, and they consider it to
hiive been, in substance, aftirmed
by the jiidgnieut oi' Her Majesty
in Council in that case.

" Their Lordships are not now
called upcn to decide whether the
word ' royalties,' in sec. 10!) of
tiie British North America Act of
18(57, extends to other royal
rights l)esides those connected with
' lands,' ' mines,' and ' minerals.'
'J'he question is, whether it ought
to be rcsti'ained to rigiits connected
with mines and minerals only,
to the exel'ision of royalties, such
as escheats, in res[)ect of lands.
Their LonlsL'ps find nothing in
the subjer u the context, or in
any othei' ;.iirt of the Act, to
justify such . ".-Iriction of its
sense. The 'u p,' interpretiition
(which they :,r;nil ns, in itself,
the more pror., an-'; natural) also
seems to be n.f.t Most consistent
with the nature and general objects
of this particular enactment, 'vhieh
certainly includes all other ordi-
nary territorial revenues of the
Crown arising within the resjjec-
tive provinces.

" Ti.-; conclusion at which their
Lordships hav(! arrived is, that
the escheat in (juestion belongs to
the province of Ontiirio, and they
will humbly advise Her Majesty
that the judgment apjjealed from
ought to be reversed, and that of
the Vice-Chancellor and Court of
Appeal of Ontario restored. It
is some satisfaction to know, that
in this result the courts of Quebec
and Ontario have agreed ; and,
though it differs from the opinion
of four judges, constituting the
majority in the Supreme Court of
Canada, two of the judges of that
court, including the Chief Justice,
dissented from that opinion.

" This being a cpiestion of a
public nature, the ease does not
appear to their Lortlships to be
one for costs."

I'rince Edward Island General
Assembly passed iu 1881, c. 18., au

Act respecting the adininistiiitioii
by the Crown of the estates of in-
testates in certain eases. B\-.sec. 8
it was ju-ovided that moneys realised
from estates to wliich the Attoniev-
General is administrator under tlV
Act shall be ke|)t in a separiiic
account of sueh liank, or invested
in sueh manner, as the Lieuteiiiiiit-
Governor in Council may frem
time to time appoint, and all
nuuieys wliich have been iiiicliiiiind
for ten years shall from time to
time lie paid into the treiisiu'v of
the i.slaml for the use and Ijemtit
of Her Majesty. The .Alinistcr
of Justice (A. Campbell) repdrtpd
among the estates to which the
Attorney-General may by that Act
become administrator is incliuM
the estates of persons dying intes-
tat(^ without heirs oi next of kin,
and he reported the ease dependfil
on the decision in Mereer c. Tlio
Attorney - General. Prov. L";'.,
1H8<5, 915.

Manitoba, in 1881, by 17 Vict.
c. 20., provided that the |)io\ iiiic
should take possession of ])ro|)eit\,
real and personal, which eselicatj
to the Crown by reason of tln'
person last seized thereof oreiititli'il
thereto dying intestate or without
lawful heirs, or which Ijeeunic tor-
feited to the Crown for any ciiiisf
except crime, the Minister nt
Justice citing Attorney-Uenenil of
Ontario v. Alercer said. Tiie riirlit
of the province of Ontario to ivnl
escheated estates was established,
but no decision had yet Ihih
reached as to whether the provimr
in which the proju-rty is sitimlo, or
tiie Dominion, is entitled to personal
property escheated for wai:t ul
heirs. [Attorney-General of Que-
bec V. Attorney- General of the
Dominion, 2 Q. L. 1{. 2.U), wa<
overlooked]. But that as regard?
Manitoba, when it became ii |)ro-
vinee, it was not possessed of iwn
lands, mines, or minerals, and tlif
Manitoba Act 33 Viet. c. 3. s. .'iO
provided that all uugranted or
waste lands in the province shouM
from and after the date of tnuisti r

B.N.A. ACT, s. ion— MINERALS AND RAILWAY. 519

inistnitioii
iti's of in-

\h sec. 8
•ys rcfiliseil
' Attonu'v-
' \iii(lfr till'
a si'imiiitc
31' invested
LiiciittMiaiit-
iiiay fnuii
t, iind all
1 iiiielaiiiii'il
0111 tiiUL' to
treasury d
anil lii'ni'lit
le Ministi'i'
ill) reixirtpil

wliieli till'
by that \v\

is incluik'il
(lyinjn inti's-
iiext of kin,
iisi' ik'iienili'il
lercL'r r. Tin'
Prov. l'"]i;

, by 17 Virt.
the provini'P
n of iiropcrty,
iiii'h escheats
>ason of till'
rotorentitli'il
te or without
[i beeaine for-
for any I'aiijf
Minister nf
lev-Ueiieral of
ill. Thcriglit
3ntario to itu!
,s establislii'il.

,11(1 yet l'^'''"
r the' proviiKv
y is situate, or
■l,,,lt()i)erM)iial

for war.t of
..neral of CJu^
■neral of the

U. 2;U), wib
liat as regiinl>
liecauie a pro-
,ssesseil of an;
lerals, anil the
let. c. 3. s. 30

uu^ranted or
.roviuce should
late of traujfir

be vpstoil in tho Crown, and ad-
ministered by tlio (Toverntnont of
Canada for the pnrpose of the
Dominion, from whieli, the Minister
arirucd, it appeared clear that the
109th section was not applicable
to the provinre, and the Act was
(lisnllowed. i;i April 1HH7, Prov.
Lejj. p. 210.

Att.-Gkn. of British Colum-
bia V. Att.-Gen. ok Can.vd.a, in
S. C. Dec. la, 1887, 14 S.C. R. 345
[Sir W. l^itchie, C.J., Taschereau
and Gwynne, J.J., Fonrnier and
Henry, J.I., dis-senting], affirming
the decision of Exeheqner Court,
taken without argninent, which
ili'i'ision adjudged that the precion.s
metals in, upon, and under the
pulilic lauds granted to the do-
minion (Toverninent under the
Act 47 Vict. (B.C.) c. 14. s. 2, for
the purpose of constructing the
I'anadiau Pacific Railway, were
vested in the Crown as represented
liy the Government of Canada, and
not as represented by the Govern-
ment of British Columbia.

Henry, , J., had given judgments in
TheQueenv.Farwell.HS.C.R.
•^92, and four other cases tried before
himat Victoria in 1886, by which he
found that the title to the landi
comprised in what was called the
railway belt of the Canadian
Pacitie Railway in British Colum-
hia was not vested in Her Majesty
the Queen for the use and benefit
of Canada, but in Her Majesty for
the use and benefit of British
Columbia. The case of The Queen
I' Farwell had been argued and
stood for judgment, and on
Dee. 14, 1887, 14 S. C. R. 392,
ms reversed by Sir W. Ritchie,
C.J., Strong, Fonrnier, and
fiwynne, .1.1., flenry, J., dissent-
ing. The question was as to the
lights of Farwell to " lot 6 " in
the district of Kootcnay. He
•liiimed the lands in question by
virtue of a grant from the British
Columbia Government, dated I3th
Jan. 1885. Ho made the applica-

tion in October, and it wn,s received T"e Qpei
bv the Survev()r-(Jeiieral 1!) Nov. Fabwem..
1883. By tile 47 Vict. (B. C;
c. 14., passed 19 J)ec. 1883, amend-
ing an Act of 1880, there was ap-
propriated in trust to the IJoniinion
tlu^ public land.s along the line of
the Canadian Railway, wherever it
may lie finally located, to a width
of 20 inih;s on each sitle. On
19 April 1884, the Dominion
passed a simihu' Act. It appears
that a portion of tlu; roi/'j of the
railway going through Yellow
Head Pa.ss wa.s abandoned, and a
route going through the How River
Pass was adopted. Farwell's claim
was situate on the Bow ]{iver Pass.
On 20 Nov. 1883, by public
notice, the Government of British
Columbia reserv ed a belt of land on
the Bow River Pass. The Do-
minion contended that the Govern-
ment of British Columbia had no
right to make the grant to Farwell.
Fonrnier, J., retained his opinion as
to the precious metals, but as re-
gards the construction put upon the
statute granting provincial lands in
aid of the railway, he thought the
expressions used were sufficient to
convey the lands to the Dominion.

Att.-Gen. of British Co-
lumbia V. Att.-Gen. of Canada
[see above] finally decided these
(luestions. In P. C. April 3, 1889, Canad.v
14 App. Cas. 295; 58 L. J. P. C.
88; 60 L. T. 712. Lord Watson,
delivering judgment, reversing the
S. C. [jiresent also. Lord tfals-
Imry, L.C., Lord Fitzgerald, Lord
liobhouse, and Lord Macnaghten],
said : —

" The (piestion involved in this
appeal is one of considerable in-
terest to the parties, but it will be
found to lie within a very narrow
compass, when the facts, as to
which there is no dispute, are
ex[)lained.

"By an Order in Council, dated
the 16th May 1871, Her Majesty,
in pursuance of the enactments of
sec. 116 of tiie British North
America Act, 1867, was plea.sed to

I i

Att.-Gen. op
British Co-

LU.MnlA ('.

Att.-Gen. op

i !

Att.-Gew. of
British Co-

LCMBIA V.

Att.-Gem. of
Canada.

I I U !

?■/

■! '■■<

i i

liil

1^':' !lli!

11^

9 a i

111 9

520

B.N.A. ACT, s. 109.— CAN. PAC. RAILWAY.

ordnin thnt the provii.i'c of Brilisli
Coliiniliia sliould, from tlic '2!)th
day of July followiiijj, lie iidiiiitttMl
into luul form part of the Dominion
of Canada, .sulijcctto tiic provisions
of that Act, and to cortain Articles
of Union wliich had been (hdy
sanctioned by the Parliaments of
Canada and by the Le<rislaturo of
British Columbia. The (eleventh
of the Articles of Union is in
these terms : —

*' ' 11. The (Tovernment of the
Dominion undertake to .secure
the commencement simultaneously,
within two years from the date of
Union, of the construction of .i
railway from the Pacitic towards
the Kocky IMonntains, and from
such j)oint as may he. selected east
of the Rocky Mountains towards the
Pacific, to connect the seaboard of
British Columbia with the railway
system of Canada ; and further, to
secure the completion of such
railway within ten years from the
date of the Union.

" ' And the Government of
British Columbia aji;ree to convey
to the Dominion Government, in
tru.st, to be a])propriated in such
manner as the Dominion may deem
advisable in furtherance of the
construction of the .said railway, a
similar extent of public lands alonj;
the line of railway throufihout its
entire length in IJritish Columbia,
not to exceed, however, twenty
(20) miles on each side of said
line, as may be appropriated for
the same purpo.se by the Dominion
Government from the public lands
in the North-VVest Territories and
the province of IManitoba. Pro-
vided, that the (piantity of land
which may be held under pre-
emption right, or by Crown
grant, within the limits of the
tract of land in British Columbia
to be so conveyed to the Do-
minion Government shall be made
good to the Dominion from con-
tiguous public lands; and, pro-
vided further, that until the com-
mencement within two years, as
aforesai ., from the daU' of the

Union, of the construction „{ ili,.
said railway, the Goveriinu.nt ol
British Columbia shall not sell nv
alienate any further iKirtinnsof tlu'
public lands of British Culiunliin
in any other way than under ri;.flit
of pre-emption, re([uiriiijr jictn,,]
rtjsidence of the iire-einptoi- dii tln'
land claimed by him. In (.f,i|.
sideratiou of the land so to W
con\eyed in aid of the const ruc-
tion of the said railway, the Do.
minion Government agico to pnv
to British Columbia, from the (Into
of the Union, th(^ sum of l(H),()()ti
dollais per anrium in liiiU'-vcailv
payments in advance.'

" After the Union, owinj; to en-
gineering and other diliiciiltiis,
there was considerable dcliiv in
constructing the line of liiilwnv
through British Columl)iii. Viiiii]ii>
differences arose between tlie two
Governments, and these weie iilti-
nialely settled, in the yciM' IS.s.'j,
by a provisional agreement, wliidi
Avas sul'setpiently I'atilieil liv the
respective legislatures of Ciinail;!
an(l the province. Part of tlio
agreement had reference to tlic
eleventh Article of Union, wliiili
it modified to the following; extern.
The Government of British l.'u-
lumbia agreed to convey to the
Goverinnent of the Dominion, iis
therein provided, the piiblie Iniul-
along the railway, wherever it
might be finally located, to a width
of 20 miles on either side of the
line, and, in addition, to coiivevtH
the Dominion Go\ ■ nuneut tliw
aiul a half millions of acies ut
land in the Peace River Distiiit,
in one rectangular block, east ol
the Rocky Mountains, iiiid joining'
the North - West Territory of
Canada. On the other liaud, tln'
Dominion Government undei'tooh,
with all convenient speed, to offt'i
for sale the lands within tiie rail-
way belt, on liberal terms, to
actual settlers ; and also to give to
persons who had squatted on tliefi'
lands a prior right of purchasing
the lands improved, at the rate*
charged to settlers generally. I"

)\viiij; to I'li-

B.N.A. ACT, !.. 109.— lUGHT TO GOLD MINES. 521

iKK'onliiiic.' with this uj^reenieut,
the iiiixls t'onniiif; the niihviiy belt
woiv giaiiti'd to the Doiiiiiiion
Govcriiniciit, ill terms of tlu'
ek'venth Ai'tiele of Union, by an
Act of the Legislutiire of Jiritish
L'dluiiilMii, 47 Viet. o. 14. s. 2.

•' In IXH-i a controversy arose
k'twpeii the Dominion and the
proviuciiil Governnumt in regard
to the gol<l, wiiieh had then l)een
fmiiid to exist in ('onsiderabie quan-
tities witliiii t]ie forty-mile belt.
With tlic \ iew of judieially asectr-
taiiiiiig whicli of them was entitled
to it 11 speeial case was adjnsted,
coiiiiiu'iKlabli' for its brevity, whieh
siiiiplv states the issue to lie,
whether tho precious metals in,
upon, and under the hinds within
the forty-mile belt are vested in
the Crown, as represented by the
Government of Canada, or as re-
lireseuted by the Government of
British Columbia ? The ease was
tirst pi'e.sented to Fournier, J., in
the Exchequer Court of Canada,
wild, without hearing parties on
tiie merits, gave a formal judg-
ment in favour of the Dominion.
On appeal, his judgment was,
lifter ft full hearing, atiBrmed by a
inujority of the Supreme Court of
I'lmada, consisting of Sir William
liitchic, U.J., with Taschereau
mill Gwynnc, JJ., the dissentient
iiieinhers of the court being Four-
nier and Henry, JJ.

"It was not disputed, in the
iii'fruments addressed to this Board,
thiit the question raised in the
special case must be decided ac-
eoidiug to the principles of the
liiw (if England, which, ' so far as
not from local circuinstiinces in-
iiplilicatile,' was extended to all
i'arts of the colony of British
Columbia by 'the English Law
Ordiimnce, 1867.'

"Whether the precious metals
ills or are not to be held as in-
cluded in the grant to the Do-
minion Government, must depend
upon the meaning to be attributed
to the words ' public lands ' in the
eleventh Article of Union. The

Act 47 Viet. e. 14. s. 2, which was
passed in fuliilinent of the obliga-
tion imposed upon the provincis by
that Article and the agreement of
1H83, defines the area of the lands,
but it throws no additional light
upon the nature and extent of the
interest which was i'ltended to
pass to the Dominion. The obli-
gation is to ' convey ' the lands,
niid the Act purports to 'grant'
them, neither expression being
strictly appropriate, though sufti-
ciently intelligible for all practical
[)urposes. The title to the public
laiuls of British Columbia has all
along been, and still is, vested in
the Crown ; but the right to ad-
minister and to dispose of these
lands to settlers, together with all
royal and territorial rexenues
arising therefrom, had been trans-
ferred to the province, before its
admission into the Federal Union.
Leaving the precious metals out of
view for the present, it seems clear
that the only ' conveyance ' contem-
plated was a transfer to the Do-
minion of the provincial right to
manage and settle the lands, and
to appropriate their revenues. It
was neither intended that the
lands should be taken out of the
province, lOr that the Dominion
Government should occupy the
position of a freeholder within
the province. The object of the
Dominion Government was to re-
coup the cost of constructing the
railway by selling the land to
settlers. Whenever land is so
disposed of, the interest of the
Dominion comes to an end. The
land then ceases to be public land,
and reverts to the tame position as
if it had been settled by the pro-
vincial Government in the ordinary
course of its administration. That
was apparently tlie consideration
which led to the insertion, in the
agreement of 1HH3, of the con-
dition that the Government of
Canada should offer the land for
sale, on liberal terms, with all con-
venient speed.

" According to the hiw of Eng-

Att.-Gfn. of
Bbitisu Co-
lumbia V.
Att.-Gkn. of
Canada.

522 B.N. A. ACT, s. ion.— CROWN'S lUCSIIT TO flOLI).

ATT.-CrEM. OF

British Co-

LU.MBIA I'.

Att.-Gbn. op
Canada.

•'!:i

I ir'J

. ; 1

liiiid, <i;ol(l and silver mines, until
they liii\ (■ b* en aptly severed from
the title of the Crown, and vested
in a snhjeet, are not re<j;arde(l as
partes so/i, or as ineidents of the
land in which they are found.
Not only so, hut the right of the
Crown to land, and the baser
niet«ls which it contains, stands
upon a <litlerent title from that
to which its right to the precious
metals must be a.seribed. In the
Mines Ca.se (1 Plowden, 33(i, ' First '
and '/'), all the justices and
barons agreed that, in the ca.se of the
baser metals, no prerogative is^iven
to the Crown ; whereas ' all mines
of gold and silver within the realm,
whether they be in the lands of the
Queen or of subjects, belong to the
Queen by prerogative, wilh liberty
to dig and carry away the ores
thereof, and with other such inci-
dents thereto as are necesstiry to
be u.sed for the getting of the ore.'
In British Columbia the right to
j)ublic lands, and the right to
j»reoious metals in all provincial
lands, whether jmblic or private,
still re.st upon titles as distinct as
if the Crown had never parted wi'h
its binelicial interests; and the
Crown assigned these beneficial
interests to the Government of the
province, in order that they might
be appropriated to the same State
j)urposes to which they would have
been api^licable, if they had re-
mained in the possession of the
Crown. Although the provincial
Government has now the disposal
of all revenues derived from pre-
rogative rights connected with land
or minerals in British Columbia,
these revenues differ in legal
(piality from the ordinary terri-
torial revenues of the Crown. It
therefore appears to their Lordships
that a conveyance by the province
of • public lands,' which is, in sub-
stance, an assignment of its right
to appropriate the territorial reve-
nues arising from such lands, does
not imply any transfer of its in-
terest in re\ enues arising from the
prerogati\e rights of the Crown.

" The grounds upon wliich tiie
majority of the learned judges of tlu!
Sui)reme Court decided in favour
of the Dominion are briefly iiiul
forcibly statetl in the jiulgincnt
delivered by Sir William Hilflii(.,
('.J. They were of opinion thai
the rule of eon.struction wliieh ex-
cepts the precious metals from a
conveyance of land ))y tln' Crown
to a subject has no application to
the provisions of the eleventh
Article of Union, which tluy re-
garded as a statutory eonipnct
between two con.stitutional CTOvein-
ments. The learned Chief .Instii;'
.said : ' This was a statutory arnuij;!'-
ment between the (loverninent of
the dominion and the (iovernment
of British Columbia, in settlement
of a constitutional cpicstion between
the two Governments, or lailier
giving effect to and carrying out
the constitutional compact nnder
which British Cohnul)ia became
part and parcel of le Dominion
of Canada, and, as part of that
arrangement, the Govermnent of
British Columbia reliniiuished to
the Dominion of Canada, as lepre-
sented by the Governor-Oenpial,
all right to certain pr.blie lands
belonging to the Crown, or to the
province of British Columbia, as
represented by the Lieutenant-
Governor.'

" If the eleventh Article of
LTnion had been an iiule|)eudent
treaty between the two Goverii-
ments, which obviously contem-
plated the cession by the provimo
of all its interests in the land
forming the railway belt, royal as
well as territorial, to the Dominion
Government, the conclusion of the
court below would ha\e been in-
evitJible. But their Lordships are
unable to regard its provisions in
that light. The elexcnth Article
does not appear to them to consti-
tute a separate and indepcndeni
compm-t. It is [)art of a geneiid
statutory arrangement, of which
the leading enactment is, that, ou
its admission to the Federal I'niou,
British Columbia sha'l retain all

K}iA. ACT, s. 109— MERCER'S CASE FOLLOWED. 523

the rijjlits ami interests assigned to
if liv the provisions of the British
Xnrtli America Act, 1807, which
jTovi'in tiio (listrilmtion of provin-
cial i)r(i[)('rty and revenues between
till' iiro\iiice and the dominion;
the eleventh \rticle I )einfj nothing
more than an exception from thesis
provi)*ions. Tlie Article in (pies-
tiou does not profess to deal with
jiim ret/in ; it merely embodies the
ti'i'ins of a eonunorcial transaction,
by whieli the oiu! Government un-
ili'itook to make a railway, and th(!
other to gixc a subsidy, by assign-
iiij; part of its territorial revenues.
"Their Lordships do not think
it admits of doubt, . nd it was not
(lisputed at the bar, that sec. 10!)
of the British North Amei'ica Act
must now b? rend as if British
Ciilnmliia was one of the provinces
therein enumerated. With that
iilteration, it enacts that ' all lands,
mine,-, niii'i-rals, and royalties,'
wliieL iielouged to British Co-
lumliia at the time of the Union,
shall tor the future belong to that
[irnvinee and not to the Dominion.
Ill order to construe the exception
fiom that enactment, which is
created by the eleventh Article of
Union, it is n"cessary to ascertain
what is comprehended in each of
the words of the enmneration, and
particularly in the word ' royalties.'
fhe scope and meaning of that
term, as it occurs in sec. 109,
umleiweiit careful consideration in
the ease of Attorney-General of
Ontario v. !\Iercer (8 App. Cas.
"t!" ; see ahorc, )). 510.), which was
appealed to this Board by the
Dominion CTovernment in name of
the defendant Mercer. In that
case their Lordships were of opinion
that the mention of ' mines and
minerals' in the context was not
enoiijrli to deprive the word ' royal-
ties of what would otherwise have
Weu its proper force (8 App. Cas.
'")■ The Earl of Selborne, in
delneriug tlu>, judgment of the
Board, said (s App. Cas. 778, and
'io(ive,p 517) : 'It appears, however,
to their Lordships to be a fallacy

Canada,

to a.SHume that because the word Att.-Gen. of
♦' royalties " in this context would '^"'tis" Co-

. , , , • If • LUMBIA v.

not be regarded as inomcioua or .._ r.„„ „„
iuseusu)le, it it were regarded as
having reference to mines and min-
erals, it ought, therefore, to be
limited to tlio.sc! subjects. They
see no reason why it shoidd not
have its primary and appropriate
sense, as to (at all events) nil
the subjects with which it is here
found associated — lands as well as
mines and minerals. Even as to
mines and minerals, it here niices-
sarily signities rights belonging to
the Crown Jure corome.'

" It is not necessary, for the
piirpo.ses of this appeal, to consider
whether the expression ' royalties,'
as used in sec. 109, includes jiivd
rcijalia other than those connected
with lands, mines, and minerals.
Attorney-General of Ontario <■.
Mercer is an authority to tiie
effect that, within the meaning of
the clause, the word ' royalties '
comprehends, at least, all revenues
arising from the prerogative rights
of the Crov n in connection with
' lands,' ' mines,' and ' minerals.'
The exception created by the
eleventh Article of Union, from
the rights - ;)ecially assigned to the
province by sec. 109, is of ' lands '
merely. Tlu' expression 'lands'
in that Article admittedly carries
with it the baser metals, that is to
say, ' mines ' and ' minerals,' in the
sense of sec. 109. Mines and
minerals, in that sense, are inci-
dents of land, and, as such, have
been invariably granted, in ac-
cordance with the uniform course
of provincial legislation, to settlers
who purchased land in British
Columbia. But jura reijalia are
not accessories of land ; and their
Lordships are of opinion that the
rights to which the Dominion
Government becjime entitled under
the eleventh Article did not, to any
extent, derogate from the provin-
cial right to * royalties ' connected
with mines and minerals, under
sec. 109 of the British North
America Act.

521 B.N. A. ACT, s. 10}).— KIGHT TO WAS'I'E SL()l'|.:s.

'I 1

i!i

W-

Att.-Gbn. op "Their Lonlsliii'S do not doubt

Bhitish Co- that thn eleventh Article of Union
Arrl'-GEN. or ""gl't b'"'^'' l>«i'i> so expre.><S('d as to
Canada. show, by neeessiiry implication,

that some or all of the royalties
dealt with by sec. U)i) were to pass
to the Dominion along with the
lands constitntiii}"; tln^ railway belt.
Bnt there is not a single expression
in the context which is applicable
to gold or gold-mining rights.
On the other hand, tlui whole terms
of the Articles of Union, as well
as of tlu^ subse<pient agreement of
IHH;?, appear to their Lordships to
jjoint to the conclusion that t\u\
high contracting paities were deal-
ing with public lands, in so far as
these were availabh- for the ordi-
nary j)urposes of .settlement, and
ha<l either excluded gold mines
from their arrangements, or had
th(>ni not in contemplation. It is
right, howe\er, to notice that the
Niagara Falls learned Chief Justice refers to a
Park v. minute of the Council of British

Howard. Columbia containing the recom-

mendation of a committee, which
was communicated to the Govern-
ment of Canada, as evidencing an
understanding on the part of the
provincial Government, that mines
of gold and other precious met^ils
were to be conveyed along with
the belt lands. The passage upon
which the learned Chief Justice
relies is in these terms : ' That it
be one of the conditions that the
Dominion Government, in dealing
with lands in the province, shall
esttiblish a land system equally as
liberal, both as to mining and
agricultural industries, as that in
force in this pro\ ince at the pre-
sent time, and that no delay shall
tjike place in throwing open the
land for settlement.' The words
' mining and agricultural indus-
tries,' taken per se, might be of
dubious import, because they would
not disclose whether gold digging
was referred to as as one of the
mining industries. But these in-
dustries are described as an inte-
gral part of the ' land system ' :
and, when it is considered that at

the (hile of the report the svslom
of land settlement in the piovinci.
which inclu'led the ba.sn' metals
was regulated by s|)ecial statnto,'
and that gold mines, wliidi were
not given off to settlers, were ikjI
treated as part of that svsteiii, Imt
were the subject of .separjitc lc<;is-
lation, it becomes appnicnt that
th(^ committe" did not iiiaku luiv
reference to gold in their rccoiii-
mendation.

" Their Lordships arc for tbeso
reasons of opinion that the jiulcr.
ment appealed from iiiust Im re-
V( rsed, and that it ought to hf
declared that the precious iiictals
within the railway belt are vcsti'il
in the Crown, subject to the con-
ti'ol and disposal of the Govern-
ment of British Columhin, and
th(!y will humbly advise Her
Majesty to that efiEect. There
will be no order as to costs."

In Niagara Falls Pahk c,
Howard, Dec. 12, 1892, Bovd,
Ch., 23 O. K. 1, decitled that" a
part of the slopes from the to|i
of the bank to the water ednc,
on the west side of the Nia<;ani
river, from the Railway Suspen-
sion Bridge to the ferry at Clifton
Hou.se, was wa.ste huid of the
Crown held for public purposes.
Secondly, that there was no evi-
dence this slope or " chain reserve'
was ever u.sed, or controlled, or set
apart for military purposes ; and,
thirdly, this being the result of the
evidence, the portion in question
vested, not in the Dominion, but in
the province of Ontario. The ques-
tion was rai.sed by the Commis-
sioners of the Queen Victoria
Niagara Falls Park and the At-
torney-General of Ontario against
Howard and another to tiy the
right to the piece of land in (|iies-
tion. Howard hud obtained in
1887 from the Doniinion Govern-
ment a lease of the land as forniin;;
part of the military or ordnaiiop
lands. Subsequently the Cominis-
sioners had obtained a giunt of ttf
same land from the Ontario Go-

I , •! i

KS.

B.X.A. ACT, s. 109.— GRANT SILENT AS TO GOLD. 525

It' system

lirovincc
•r metals,
il statiitp,
liirli Weil'
, were iKit
vsti'in, but
iriitc Ic^is-
nvctit that

niiike Hiiy
cir I'ccoiii-

1' f(ir thi'so
; tho jiulg-
ust li(> ri'-
ight to lie
ous mi'tiils
:, an" vi'sti'il
10 till' I'on-
Ik' Govorn-
imliiii, auil
idvisc ITor
ct. Thiw
osts."

:,s Fakk r.
1892, Bind,
■iiled that ii
oin the top
wiiter eilgt',
the Niapmi
xa\ Suspen-
r_v"iit Clifton
ii'iul of tlic
lie purposes.

WHS no evi-
mill reserve"
:rollc(l, or set
irposes; and,

result of the

in question
iiinion, hut in
0. ThequeS'
the Commis-
i,.,.n Victoviii

ami the At-
iitario against
ir to try the

lanil in <ines-
obtained in
ion Govern-

lul as formin?
or orihmnee

^ the Commis-

,1 cr.iint of thf
Ontario Go-

vernment as hein<? I)art of tlu^ uii-
^iiiveyeil liinils of the old i)roviiic<"
of Canada, which were now vested
in the i)rovince of Ontario.

Boyd, Cli., ill effpet, found that
the land alonf? the to[) of the bank
for a distanee of 06 feet from the
laiuk was what wa.s known as the
"chain reserve" or "ordnance re-
serve," said to .stretch from Nia-
I'ara to Fort Erie, and that the
"chain reserve" dul not include
the sloi)e. The river being the
dividing line between the United
States and Canada, the high laud
was retained for defensive purposes,
Imt not the slope; anil, therefore,
the latter remained outside the
military land and public wa.ste hind
niitil vested in the Commissioners
uf the Park.

In WooLLEY V. Att.-Gen. of
VicTOKiA, Feb. 6, 1877, 2 Ap[).
Cas. 1G3; 40 L. J. P. C. 18;
36 L. T. 121, it was contended
that the law of England as to the
prerogative right of the Crown to
i;old and silver found in mines
will not pass under a grant of land
I'lom the Crown unless by apt and
precise words sliowing that inten-
tion must be held to have been
introdueed as part of the common
law of England into the colony of
Victoria, liut it was contended
that a g'ant, dated 185;i (before
IS & 19 Viet. e. 55.), under 5 & G
Vict. c. 36., which by sec. 5 em-
puwerwl the Governors of the
•Viistralian colonies, in the name of
Her Majesty, to convey in fee
Hniple to a purchaser any waste
land of the Crown in such colonies,
liad the effect of passing to the
pnrcliaser these precious metals.
The .Judicial Committee held the
Act hail no such effect. Sir J. W.
C'olvile, delivering judgment [there
lieiug also present Lord Blackburn,
Sir B, Peacock, Sir M. E. Smith,
iind Sir 11. t'oUier], said : " The
"hject of the Act 5 & 6 Vict.
c. 3G. was to empower the Governor
of the colony to deal with the
waste lands of the Crown in the

(•olony by jmtting them up for
sale, under certain (Minditions, by
jmblic auction. Tiu; Ci'own seems
still to have retained n certain
interest in and power of tlisposition
ovcu' the proceeds to l)e reali.sed by
tlu! sales ; for tlu^ lS)th .section
provides that, ' subject to the
(diarge alxtve mentioned,' meaning
the (diarge mentioned in the IHth
section, for the exi)cnses of sur-
veying and the like, 'the gross
proceeds of the sale of the waste
lands of the Crown in eaidi of the
colonies shall be appropriated and
applied to the public service of the
.said colonies respectively, in such
manner as Her Majesty or the
Commissioners of Her Majesty's
Treasury, or any three of them,
shall from time to time direct.' It
is expressly provided that one
half at least shall be applied to the
purpose of emigration ; but, subject
to that provision, it would seem
that there remained in the Crown,
as represented by the Home Go-
vernment, the power of directing
the application of the proceeds to
be realised by the waste lands.
There is no reference to the rights
of the Crown in the p.'ecious
metiils to be found under the soil;
and it is a recognised principle of
the construction of statutes that
the prerogative rights of the Crown
can be affected only by express
words or necessjiry implication."

Tn Mayor of Essenuon v.
Bl.vckwood (Victoria Racing
Club), May 14, 1877, 2 App. Cas.
574; 46 L. J. P. C 98; 30 L. T.
G25, the Judicial Committee de-
cided land used for " public pur-
poses " did not incliuh' ground set
a[>art for a iiublic racecourse. It
was a chiini for exemption from
taxation, and the Eoard hehl that to
bring the case within the exemption
it must be shown that the land was
used solely for public purposes,
without any beneficial occupation
by individuals, which there was in
this case.

WooLr.Kv ('.
Att.-Okn. or

ViCTOIlIA.

I -I

Mayoh op
essendon ii.
Blackwood.

■ P I

i 1

lij:

• I

Assots coii-
iiicteil willi
in'oviiiciiil
(1(0 its.

Ciiimda tn lie
liiilile for pro
viiiL'iiil debts.

TlIK QUKKN r.
liELI.EAU.

ill

:l i ,:;

626

RN.A. ACT, .s. 111.— PIIOVINCIAL DEBTS.

110. All assots coiinrctod witli sut^h portions of the
public dcht of each province as are assuiucd In that
l)roviiico shall bolonj^ to that province.

111. Canada shall he liable for the debts and lia])ili.
ties of each province existing at the Union.'

• By this section the Dominion
becanic rcsponsilile for the di'lita
of wicli province. In The Qitkkn
V. Beli.K.U', in S. C". 10 Feb. IHSl,
7 S. L\ 11. 5.'}, Fonrnier, Henry,
and Ta.sehereaii, J.I., Sir W.
Bitchie, CJ.,an(l Gwynne, J.,(lis-
sentinfj, aHirininp Fonrnier,.!., in
the E.xche(]ner Court, held the
Dominion were iial)l(> for certain
debentures (and interest from the
date of the petition of right), issued
under the authority of tlie pro-
vince of Canada Act, 1(5 Vict,
c. 2.35., by the 'J'rustees of the
Quebec Turnjnke Roads. But this
decision was reversed by the
Judicial Committee, June 20,
1882, 7 App. Cas. 473, on the
ground that whatever coustrnction
was to be put on the jirovince pay-
ing off in 1850-.3 debentures of
£25,000 and £8,885, which had
been issued under provision.s of an
ordinance, 4 Vict. c. 17., and an
Act of 8 Vict. c. 55., the deben-
tures in question were issued under
the 1() Yict. c. 235., and by that
Act were given no provincial
guaranty, though they had a pre-
ference given to them over all that
had such guaranty. It appeared
that in 1795 it was provided by
36 Geo. 3. c. !)., that all occu-
])iers of lands adjoining the king's
highway should keep the same for
the breadth of their lands in good
repair. In 1841 an ordinance,
4 Vict. c. 17., was passed, and pro-
vided that trustees might be ap-
pointed for keeping in repair cer-
tain roads leading into the city of
Quebec, and might raise a fund for
that purpose on the security of the
tolls [see sec. 21 in judgment be-

low]. By sec. 27 of the onliuance,
if the money in the hands of the
trustees was insuHicicnt to pay tlic
interest on the debentures,' tlw
Governor of the province mijjlit
by his warrant order the Hccciwr-
General to jk. ■ it. By ,s Vict.
c. 45. £8,882 'in debci'itiircs was
raised, and these debcntiu'es tor
£25,000 and £8,882 were paid otf
(1850 to 18,'>3) out of the general
revenue of the province. Then liv
Hi Vict. (1853) c. 235. the power's
of the tru.stees were extended to
other roads, and th(;y were pwn
power to issue debentures to a
certain amount. Sec. 7 contaiiuHl
a proviso that the interest was
not to exceed six per cent., and
no money was to be advnneed out
of provincial f imds for the piiyinoiit
of the said interest, and all delicii-
tures which were issued under the
Act, so far as related to the interest
payable, were to have a ])rivile;;o
of priority of lien upon all tlie tolls
and other moneys at the disposal
of the trustees, in preference to the
interest imyable upon all deben-
tures which ha^l been issued luider
the ])rovincial guaranty. These
Acts wei'c passed through the
legislature of the province of
Canada by some one of the re-
sponsible ministers of the provincial
Government. Following on this
Act the trustees raised in deben-
tures £30,000 and £40,000. Sec.
13 contained also: "Provided
always that the province shall not
guarantee or be liable for the priu-
cipal or interest of any debentiiies
issued under this Act, nor shall
any money be advance! or iwid
therefor out of the provincial
funds." The respondents repie-

RN.A. ACT, H. Ill— TiTAB. FOR DEBENTURES. 627

Srlltt'il liol'li'is <'l •!" ■ illi()\(' (IcIm'II-
tiiivs, issiii'il for the loans of
t'lUM""' "'"' iilU.OlH). 'riiL'y foii-
tfiiilcil that l)y sues. Ill, 112, and
ji;{ of till' R.N. A. Act, all (lolits
iiul lialiilities exi.stinj;; at the
I'liioii, wlii'tlier due in eoiinectiou
with tuiiipike trusts or of any
(itlicr kiiiil, were imposed on the
Ddiiiiiiioii Government. Secondly,
lliiit the province ))y paying off
t:i!5,()(«) and tlH.HHiJ in lH5(.)-53,
■.Imwt'd that Hie province considertid
tiny were lialile for the principal.

The appelhmts, representin<; the
Dumiiiioii, eontended that the tiirn-
]iiki' trustees were never agents of
till' Crown. They were trustees
with siieh powers in the public in-
terest as are vested in a corpora-
tion. That the effect of li, 10, 18,
•>\. 22, 2;i, 2(>, and 27 sections of
the ordiiiaiiee, T Vict. c. 17., was to
iivate a trust for the working and
repiiiiiug of roads, and to authorize
siieli tni-sts to borrow on the
sioiirity uf the tolls for tho.se pur-
poses, Imt not to impose any lia-
iiility whatever in respect of sums
so borrowed by the trust in the
luovinee. Leave to api)eal was
^rrmitod 12 Nov. 1 881, as the ques-
tion involved other turnpike trusts
to the extent of £200,01)0, and the
iiuestion was of pid)lie interest to
till' taxpayer of the Dominion.

The respondents were allowed to
io(l;,'e !i cross appeal against that
liiut of the judgment giving in-
terest only from the period of
lodging the petition of right.

Sir .faine.s Hanneu said [there
lieinj; also present Sir B. Peacock,
Sir M. E. Smith, Sir R. Collier,
iiiul Sir 11. Couch] :—

"T'his is a petition of right
"gainst the Crown by the hohlers
of eertain debentures issued by
' The Trustees of the Quebec Turn-
pike Roads,' for payment of the
liriueipal and interest of their
ilebentures.

" No (juestion has been raised as
to 'he form in which the suppliants
seek to have the cpiestion in dis-
pute determined, which is, whether

the hile provim-e of Canada was The Qlkkn v.

liaide to pay the principal and Hki.i.kah.

inttirest of the delxMitures sued on.

My the Mritish North America

Act, 18(»7, the debts and liabilities

of each province existing at the

Union were transferred to the

Dominion of Canada, and it is

coneedeil by the Crown that if the

debentures i-reated a debt on the

part of the |)rovin('e, the suppliants

an? entitled to a decision in their

favour.

"The delmntures purport on
their face to be, and were in fael,
i.Hsued under the authority of an
Act of Parliament of the province of
Canada (Hi Vict. c. 2.'15.), intitided,
' An Act to authorize the trustees
of the Quebec Turnpike Roads to
issue diibentines to a certain
amount, and to place certain roads
under their control.'

" The debentures are in form
certificates by the trustees, that
under the authority of the said Act
therti had been borrowed ami re-
ceived from the holder a certain
sum bearing interest from the date
of the certificate, which sum was
reimbursable to the holder or bearer
on a day named.

"The Act, after reciting that it
was expedient to extend the pro-
visions of a eertiiin ordinance
(4 Viet. c. 17.) to certain roads
other than those to which they
then extended, and to such further
improvements through the trustees
of the roads established under the
.said ordinance, and that in order
to the construction and completion
of the roads then undertaken by
the trustees, it was expedient to
provide for the raising of the
necessary funds by the issue of
debentures by the said trustees,
enacted that the provisions of the
said ordinance, and the provisions
of all Acts and statutes in force
amending the said ordinance, and
the powers of the trustees appointed
under the said ordinance, should
extend or ai)ply to the road in the
said Act mentioned, in the same
manner as if the said roads had

;|i

528

B.NA. ACT, s 111 —TOLLS AS SKCURIPV

: i;

,:M

TiiR QnKRN I'. JM-cii inciitiiii.i'il iind (IcHcriljcd in
Hrixkau. t|„. ^„i,i onlinaiicc.

" Hv tln' -11(1 1111(1 SllllS('(|ll('llt,

.scctioiiH (Idwn to 1111(1 inclusive of
tli(! (itli, tlio tniMtccH wore rc-
qnii'cd to cxccMitc certain works,
and were untliorized to execiito
otluM's, and the roads are eiiuiiie-
ratod to which the ^)rovisions of
the ordinnnce wtire to lie ext('nde(l.

"Bytlie 7th section it isenact((l
that, in or(l(>r to the nuikiiifj and
completion of certnin roads de-
scribed in a previous Act, and the
making of the various improve-
ments above mentioned, ' it siioidd
be lawful for the trnstecH to raise
by loan a sum not excee(lin<j;
£.3(),00() currency, and this loan
and tiie debcutiu'es wiiich shall be
issued to (effect the same, and all
other matters having reference to
the said loan, shall be subject to
i\w provisions of the ordinance
above cited with respect to the loan
authorized unch'r it.'

" This is followed by a proviso,
wliich it will be necessary to refer to
hereafter. Thus we are obliged, in
order to see what were the obli-
gations created by the debentures
issued under the IG Vict. c. 235. and
now sued on, to exuni'iic the i)rovi-
sions of the ordinance, 4 Vict. c. 17.

"By that ordinance the Governor
WHS empowered to appoint not less
than live nor more than nine per-
sons to be, and who and their suc-
cessors should l)e, trustees for the
purpose of opening, making, and
keeping in repair the roads herein-
after specified. By sec. 3 it was
enacted that the said trustees
might, by the name of The Trustees
of the Queliec Turnpike Roads, sue
and be sued, and might acrjuire
property and estates, moveable and
immoveable, which being soaecpiir-
ed should be vested in Her Majesty
for the public use of the province,
subject to the management of the
said trustees for the jiurposes of the
ordinance.

" By the 18th section it was
enacted that the roads should be
and remain under the exclusive

nmnagemont, charge, and cminil
of the said trustees, and iln' |„||^
tlicrcon should be ajjplicd si.ldv
t(( the necessary expenses cf |l,',>
management, making, and n'|iiiiiii)"
of the said roads, and the piivnicirt
of the interest on tlic miiiciiml of
the delientures theieinal'tir iiii.n.
ti(>n(td.

"Tiie 21st section is the iii,,.st
important, and is as i'oilows ;—
♦ 21. And be it further (inlaiiicd
and enacted, that it shall lie liiwl'nl
for the said ti'ustees, as soon alter
the passing of this ordiiifiiRc us
nmy be expedient, to raise liv wiiv
of loan, on tlu' credit and siriiiilv
of the tolls hereby autliiiiizcd tu hi'
imposed, and of other inom-vs
which may come into the p(iss« i-iidn
and be at the disixisal of the siiii!
trn.stees, under and by \irti:,' ul'
this ordinance, and not to he pjiiil
out of or chargeable against tiir
general revenue of this provinoi',
any sum or sums of nioia'y imt
exceeding in the whole £2r),(lO()
currency.'

" l^nless, therefore, il ciiii lie
shown that some (pialillciitidii (j1'
tho.se words is to he found cx-
prcs.sed or implied in the oniiuiiin'c
or the stjitutes amending il, it is
clear that the sujjpliants lent tbcir
money on the credit and sccMrityol
the tolls, 'and not to be paid (iiit
of or chargeable against tiic reve-
nues of the province.'

" Their contention is that, ikjI-
withstiuuling these words, the pm-
vince was bound to pay the delien-
tures. The trustees, it is said, weiv
the agents of the province, and in
that character they boriowiHl iiiouiv
for the province to be; applied tu
provincial purposes ; thus the pm-
vince became the principal debtof,
and the tolls are to he ivganled
only as a first source of repayiuout
of the debt of the province. The.*
general propositions ciiiinot affonl
assistance in the consideration ot
the question we have to (letcrniiiu'.
It is of no avail to call the trustees
agents of the province, if it is ai'-
nutted, as it mu.st be, tLnt tiie

B.N. A. APT, s. 111.— LTIMTTED AGENTS.

529

1(1 I

pxlont mill limits of tbfir nponov
iii„st be s()Uf,'lit ill tlu' Act of tlic
lit'isliitiirc wliifli },'ivfrt llit'iii cxist-
iimkc till' trii.stccs llic

iwiits of the province, it inii.st lie
Jm\,\ tlmt l>y tlicir ooiLstitiitidii
ilu'v liiivc aiitiiority to act for tlic
proVimr, iiiid to create ohii^'iitions
liimlin;: iil»i" it; '""' f'''^ '"'^ "ot
l,rii siiiiwii. Tlie trustees are a
ciirporatc liedy, the ivb.soliite crea-
liim (if tiic legislature, aiul their
ri^iits duties, and powers are ex-
iliisivi'iv contained and defined in
ihc instnuaent iiy which they were
iiinii'iKinitcd. Such corporations
;iiv well known to the law as well
III' this nmntry as of Canada.
They art' created for a ^i^vvtit variety
(if |mi'|ios('s, some of local, others
of neiicral importance. In tht-
prpsMit instance the corporation is
cmitwl for the local object of ini-
pving the roads round Quebec,
iiiiii to this end the trustees are
niiiiowercd to borrow money on
(vitiiin spccitic terms for the |)iu'-
lidscs of the trust as defined in the
(inliniiiicc. 'I'lie benefit whu li the
lirri\iii('(' niav be supposed to de-
rive from the expenditure of the
iiioiicv hon'owed, no more imposes
II liiiiiility on the province to re|)ay
it tlinii it imposes such a liability
im the adjoining landowners, the
Value of whose property may be in-
(Tiiised liy the construction of the
roaijs authorized to be made.

"In order to ascertain the
|io\vf'r.«of the trustees, we niu.st ex-
iimiiie the provisions of the ordi-
nance.

"By the 21st section it appears
lliat the loan is to be raised on the
ii'Cflit and security of the tolls
iiiithoiiml to be imposed, and other
iimiieys which may come into their
liii>ses.sion, and be at the disposal
(if tlie trustees under and by virtue
(if the ordinance. On tliis it is
oliserved that it does not say the;
'^ole' credit and .security of the
tolls, &c., but, in the absence of
any other credit or security defined
[•'v the ordinance, those onlv can
lie looke{l to which are expressly

S 2340.

mentioned. It is, however, evident Titp. Quekn w,
that it was for the very purpose of 1'k''-«au.
j;uardii!<j iifjaiust the po^^sibiliiv of
the present ehiini tlml, in mhlition
to the ailiruiative words idreailv
(pioted, ucf^ative words were intro-
duced that the loan is ' not to be
l)ai(l out of or to be cliMrgenble
ajiainst the <,'eueral revenue of the
piovince.'

" It does not appear jjossible to
use languaf^e more carefully franu'd
to exclude from the minds (d' pro-
posed lenders the idea that they
were in any case to lo(dc to the
|)rovince for repayment <d' I lie
moneys advanced by them.

" The only criticism whiidi has
lieeii offered upon this pas.sage is
that it does not negative the con-
tention that the loan is to lie paid
out of reveiuu' other than {\w
'general' revenue of tiie province;
but no other revenue can be

suggested.

" The Government has no power
to i.iise or apply revenue in iniy
othei' way than is authorized by
law. It is obvious that revenue
already a])pr(ii)riated to particular
objects cannot be dixcrted from
them, and when it is forbidden to
apply the nnapproi)riated or general
revenue to the payment of the loan,
all possible sources of reimburse-
ment out of the revenue of the
province iVre excluded. It is a
contradiction in terms to .say that
that which the province is by ex-
press enactment forbidden to pay
out of its revenue, remains, never-
theless, a liability of the province.

" The 2(5th section enacts that it
shall be lawful for the Governor,
if he shall deem it exiiedient, at
any time within three years from
t1n> passing of the ordinance, and
not afterwards, out of any unappro-
priated public moneys in his hands,
to purchase for the public uses of
the province, and from the said
trustees, debentures to an amount
not exceeding £10,000 currency,
the interest and principal of and
on which shall be paid to the
Keceiver-General by the said trus-

!:'!■! i

The QrEKir v.

Belleau.

I !

530 B.TTA. ACT, s. 111.— AUTHORIZING LOANS.

tees, in the same manner and imder
the same provisions as are provided
Avith regard to such payments to
any lawful holder ■ " such deben-
tures. Thus the Governor is
enabled to purchase, on behalf of
the province, debentures, and so to
become thp cred' ^r of the trustees,
but this power is limited to three
years.

"This is wholly inconsistent
with the idea that the province was
already the debtor for the vhole
amount of the loan. The province
cnnuot stand in the relation both of
debtor and ci'cditor to itself ; and
if the process be regarded as a
means of redeeming the debt of the
province, no reason can be sug-
gested why this power of purchas-
ing debentures should be limited in
amount, and to a period of three
years.

"The 23rd .section enacts that
the debentures shall bear interest,
and concludes thus : — * Such in-
terest to be paid out of the tolls
upon the roads, or out of any other
moneys at the disposal of the trus-
tees for the purposes of this ordi-
nance.'

" Here there are not negative
words excluding the liability of the
province, but the obligation to pay
interest primarily follows that of
paying the principal, and it lies
upon the pa-ty asserting that it is
imposed elsewhere to establish it.

" So far from there being any-
thing in the ordinance to support
the contention that the interesi is
to be paid by the province, every-
thing on the subject of interest
tends strongly in the opposite
direction.

" By the 27th section it is enacted
that all arrears of interest shall be
paid before any part of the princi-
pal sum, ' and if tlie deficiency be
sv.2\\ that the funds then at the
disposal of the tru.stees shall not
be sutficient to pay such arrears,
it shall be lawful for the Governor,
for the time being, by warrant
under his hand, to authorize the
Receiver-General to advance to

the trustees, out of any nnappro-
priated moneys in his hands, s\k'1i
sura of money as may, with the
funds then at the disposal of the
trustees, be sufficient to pay such
arrears of interest as aforesaid, ami
the amount so advanced shall bo
repaid by the trustees to the
Receiver-General.'

" This provision, enipoweriii<;tli(>
Governor-General to authorize a
loan to the trustees to eimble them
to pay interest, is inconsistent with
the idea that the province aviis
already under an obligation to pay
the interest.

" If then the case had rested upon
the effect of the ordinance alone,
their Lordships are of opinion that
no liability on the part of the [)ro-
vince for payment of either tlio
principal or interest could !je esta-
blished ; but it has been argned that
by subsequent legislation and ecu.
duct the province of Canada has
recognised its liability to pay tlio
principal and interest of the deben-
tures issued under the nnthority of
the ordinance of 4 Vict. c. 17.

" The first Act which is reliwl on
is 12 Vict. c. 5., by which it was
provided that it * should be lawful
for the Governor to redeem or pur-
chase on account of the province all
or any of the debentures constitu-
ting the public debt of the provinw
of Canada, or such or any of the
debentures issued by commissioners
or other public officers under the
authority of the Legislatuiv of
Canada, or of the late province of
Canada, the interest c principal of
which debentures is made a tliurge
on the consolidated revenue fund of
the province.' It is said that the
Government, under thenuthorityof
this Act, paid off the debentures
issued under the ordinance.

" It appears highly i)robabIe,asis
stated in the very able judgment of
Mr. Justice Gwynne, that the \)om
given to tiie Governor by the 2Jtb
section of the ordinance to advance,
by Avay of loan, money to the irus
tees to pay arrears of interest, did,
in fact, lead to the idea that the

B.N. A. ACT, s. 111.— GOVERNOR'S POWERS. 531

nrovinoe was under a legal liability
to pay tiie interest, and it would
seem, though the manner in which
the transaction was carried out is
very ob.scnre, that the debentures
issued nndor the ordinance were,
in fact, redeemed imder the powers
supposed to be conferred by the
12 Vict. c. 5.

" All that need be said upon this
subject is that, if the Governor did
suppose himself to he acting under
the authority of this statute, he
mistook his powers. The deben-
tures issued under the ordinance
Jill not constitute part of tl:e public
debt of the province, and neither
the interest nor principal of them
was made a charge on the consoli-
dated revenue fund of the proxince.
"But, whatever considerations
may have led to the redemption by
the Government of the debenttires
issued under the ordinance, it is clear
that they cannot affect the construc-
tion of the 16 Viet. c. 235., under
which the debentures now in suit
were issued.

" The 7th section of that Act au-
thorized the trustees to raise a loan,
which Moan, and the debentures
which shall be issued to effect the
Nime, and all matters having re-
ference to the said loan, shall l)e
subject to the provisions of the
ordinance with resi)ect to the loan
authorized under it ' ; but this ini-
[lortaiit proviso is added — * provided
nevertheless that the rate of interest
shall not excee<l 6 i)er cent,, and no
uiiw ys shall be advanced out of the
provincial funds for the payment of
the said interest.' Thus the power
to make advances o>it of provincial
funds for payment of interest which
was given by the '27th section of the
ordinance as to the debentures is-
sued under it, and which had possi-
bly led to misconception as to the
liability of the province, is expn r.sly
taken away by the 10 Vict. c. 235.
astothedeb(mturesnow in question.
They must, therefore, be treated as
'ssued not merely on the express
enndition that they were not to be
paid out of or chargeable against

the general revenues of the pro-
vince, but with the further ex-
press condition that no moneys
should be advanced out of provincial
funds for the payment of interest.

"And again, as though for the
purpose of guarding against the
possibility of the debenture holders
contending that the debentures is-
sued under the 16 Vict. c. 235. had
the [)ro\ incial guarantee, the proviso
to the.7th section enacts that ' all the
debentures which shall be issued
under this Act, so far as relates to
the interest payable thereupon, shall
have a privilege of priority of lien
upon the tolls, itc, in preference to
the interest payable upon all del)en-
tiuvs which shall liavc been issued
under the [)rovincial guarantee, or
which shall hereafter be issued by
the said tru.stees iinder the provin-
cial guarantee.

" What tlebentures liad been or
could be issued under the provincial
guarantee does nota])pear ; but this
at least is cleiU',that the debentures
issued under the Act, and now sued
on, have no provincial guarantee,
since they have a preference given
to them over all that have, and are
thus distinguished from thorn.

" It remains only to consider some
general arguments which have been
advanced on behalf of the suppli-
ants. It has been urged that the
Government of the proviace, by
redeeming the debentures issued
under the ordinance, iiuluced the
belief that the same course would
be pursued with regard to the de-
bentures issued under the Act 16
Vict. c. 235., and that without such
belief the debi'uturc holders would
not have lent their money on the
security of the tolls, &c., which had
proved entirely ins.ifHcient even to
pay the interest of the former loan.
Their Lordships do not desire, by
any observations, to diminish the
force of these arginnents, if ad-
dressed to the proper tribunal. It
may be that the Legislature of the
province of Caiuida, or that of the
Dominion, may see reason to listen
to the prayer of the suppliants to

LL 2

The Queen v,
Belleau.

!'■ I

The Queen v.

Bkm.kac.

Debts of On-
tario and
Quebec.

Assets of On-
tario and
Quebec.

:| lif.j

1 h ■*

532 B.N, A. ACT, s. 112— LENDERS AND PKOVINOE.

lip relieved in whole or in part from
the loss of their money, Avhich has
been expended for the benefit of the
province. But this tribunal eannot
allow itself to be influenced by
feelings of sympathy with the in-
dividuals affected. Its duty is
limited to expressing its opinion
upon the legal question submitted
to it, and upon that their Lordships
entertain no doubt.

" Another argument of a similar
kind has been based upon a sub-
sequent statute of the province of
Canada, 20 Vict. c. 125., by which
the Quebec turnpike roads were
divided into two parts, and by which
it is contended some of the deben-
ture holders have been deprived of
a part of the special fund created
for the payment of their loan. As-
suming the correctness of this con-
tention, it might have been made a
ground for opposing the later
enactment, or it may now be used
by way of appeal to the legislature
for redress, but it cannot supply a
reason for putting a construction
on the obligations created bv the
l(i Vict. c. 235., different "from
that which must have been put
\q)on them immediately after the
pas.sing of that statute.

" Some minor points have been
relied on by the learned judges
who have held that the suppliants
were entitled to succeed on this
petition. It is from no disrespect
to those learned judges that these

points have not been particularly
dealt with, but from a lielifif
that, however they may tend to
fortify the general argument in
support of which they arc used
they do not by themselves iiffonl ii
basis upon which their L(ir(lslii|is'
judgment can be foimded.

" For these reasons, their Lord-
ships are of opinion that the jiulcr.
ment of the Exchequer Court of
Canada, as well as the judcrment
of the Supreme Court confirniinc
the judgment of the Exchequer
Court so far as it decided that tlip
respondents were entitled to tiie
principal of their debentures, liut
varying the same by declaring tluit
the respondents were entitled, in
addition to the principal, to interest
from the date of filing the petition
of right, are erroneous, and their
Lordships will humbly advise Her
Majesty that they should be re-
versed and judgment entered for
the Crown.

" Their Lordships are ftu-ther nf
opinion, and will advise Her Ma-
jesty, that the cross api)eal of the
respondents asserting tlie liahiHty
of the Crown to [)ay interest on
the debentures from tiie <late of
their falling due should be dis-
missed, and that the costs of llie
appeal and of the cross apix'al and
of the proceedings in tlie courts
below should be paid by the re-
spondents.

112. Ontario and Quebec conjointly shall be liable
to Canada for the amount (if any) by which the debt
of tho province of Canada exceeds at tlio Union
sixty-two million five hundred thousand dollars, and
shall be charged with interest at the rate of five per
centum per annum thereon.

113. The assets enumerated in the Fourth Schedule
to this Act belonging at the Union to the province of
Canada shall be the property of Ontario and Queha
conjointly.

<rrT3.

B.?f.A. ACT, s. 114.— DEBTS OF PROVINCES. 533

pnrticularlv
n a belief
ny tend to
■giunciit in
y iii'c used,
Ivi'S afford a
; L()i'(lslii[)s'
lod.

thciv Lord-
lat tlio jiultj-
ler Court of
le j\i(Igment
t confirmint!
» Exchequer
idetl that the
titled to the
bonturcs, Imt
leclariiig tlmt
e entitled, in
>al, to interest
g the petition
3US, and tlieir
ily advise Her
diotild lie re-
it entered for

are further nf

.vise Her Ma-

, apjienl of tlie

<r tlie liahility

iiv interest on

\\ the date of

ihould he (lis-

e costs of tlw

OSS apix^al awl

in the eonrts

lid 1)V the re-

11 be liable
3I1 the debt

the Union
dollars, and

of five per

•til Schedule
province of
and Qnelm

114. Nova Scotia shall be liable to Canada for the ^^^^. "^ ^"''^

••■*^* _ _ Scotin.

amount (if any) by which its public debt exceeds at
the Union ei^^ht million dollars, and shall be charn:od
with interest at the rate of five per centum per annum
thereon.

115. New Brunswick shall be liable to Canada for Debt of New
the amount (if any) by which its public debt exceeds

at the Union seven million dollars, and shall be charged
with interest at the rate of five per centum per annum
thereon.

116. In case the public debt of Nova Scotia and ^^^T^'k^ '""

■•■ torest to >(ova

Sew Brunswick do not at the Union amount to f^cotia and Now

eight million and seven million dollars respectively,

they shall respectively receive, by half-yearly payments

in advance from the Government of Canada, interest

at five per centum per annum on the ditference

between the actual amounts of their respective debts

and such stipulated amounts.

117. The several provinces shall retain all their ^^bit""rd.
respective public property not otherwise disposed of in perty.
this Act, subject to the right of Canada to assume any

lands or public property required for fortifications or
for the defence of the country.^

' Each province is entitle I to re-
tain its own waste lands: St.
Cittherine's Milling and Lnmber
Company v. The Queen, Dee. 12
1888, 14 App. Cas. 4G. and ante,
p. 94; Att.-Gen. of Ontario r.
Mercer, Julv 18, 1883, 8 App. Cas.
"6"; 52L. J, P. C. 84; 49 L. T.
312; mdante, p. 510. Seeexami-
nation of sees. 102, 109, and 1 17, by
Lord Watson in the first of the

above oases, and in the latter
case by Earl Selborne, and com-
pare sees. 109, 126, and 125.

Sees. 102 and 117 are reconciled
by holding that forfeitures and
escheats fall into the treasury of
the provinces, and not into that
of the Dominion : Att.-Gen. of
Quebec v. Att.-Qen. of Doniinion,
1876, 2 Mon. Q. B. 236, and
ante, p. 500.

118. The following sums shall be paid yearly by ^i^"/,^*°P''°-

';;!

'i.l:

■ i;;- !3

• 1

Further grant
to New Bruns-
wick.

iimm

Form of pay-
ments.

534 B.N. A. ACT, ,s. 118.— PAYMENTS TO PROVINCES.

Canada to the several provinces for the support of their
governments and legislatures : —

DoUnrs.

- 80,000

Ontario
Quebec

Nova Scotia -
New Brunswick

70,000
60,000
50,000

260,000 ;

and an annual grant in aid of each province shall bo
made, equal to eighty cents per head of the population
as ascertained bv the census of one thousand cislit
hundred and sixty-one, and in the case of Not-a Scotia
and New Brunsioick, by each subsequent decennial
census until the population of each of those two pro-
A'inccs amounts to four hundred thousand souls, at
which rate such grant shall thereafter remain. Such
grants shall be in full settlement of all future demands
on Canada, and shall be paid half-yearly in advance to
each province ; but the Government of Canada shall
deduct from such grants, as against any province, all
sums chargeable as interest on the public debt of that
province in excess of the several amounts stipulated in
this Act.

119. New Brumtolck shall receive by half-yearly
payments in advance from Canada for the period of
ten years from the Union an additional alloAvance of
sixty-three thousand dollars jier annum ; but as long
as the public debt of that province remains under
seven million dollars, a deduction equal to the interest
at five per centum per annum on such deficiency shall
be made from that allowance of sixty-three thousand
dollars.

120. All payments to be made under this Act, or
in discharge of liabilities created under any Act of the
provinces of Canada, Nova Scotia, and New Brunswick
respectively, and assumed by Canada, shall, until the
Parliament of Canada otherwise directs, be made in

B.X.A, ACT, s. 121— FREEDOM OF TRANSIT. 535

such form and manner as may from time to time be
ordered by the Governor- General ''n Council.

121. AH articles of the growth, produce, or manu- Canadian ma-
facture of any one oi tlie provinces shall, irom and

after the Union, be admitted free into each ' of the
other provinces.

122. The customs and excise laws of each province Continuance of

. . '- customs and

shall, subject to the provisions of this Act, continue in excise laws,
force until altered by the Parliament of Canada.

123. Where customs duties are, at the Union, Exportation

. and importation

leviahle on any goods, wares, or merchandises in any as between two
two provinces, those goods, wares, and merchandises ^'°^""'*^"
may, from and after the Union, be imported from one
of those provinces into the other of them on proof of
payment of the customs duty leviable thereon in the
province of exportation, and on payment of such
further amount (if any) of customs duty as is leviable
thereon in the province of importation.

124. Nothing in this Act shall affect the right of Lumiier dues

ITT. .Tj-1 ill 1 1 -IT.'" ^'-'^ Bruns-

New Brunswick to levy the lumber dues provided m wick,
chapter fifteen of title three of the Revised Statutes
of New Brunswick, or in any Act amending that Act
before or after the Union, and not increasing the
amount of such dues ; but the lumber of any of the
provinces other than Neio Brunswick shall not be
subject to such dues.^

' See Treaty of Washington, 1872, arts. 30, 31, 33 ; Dom. Act,

36 Vict. c. 41.

125. No lands or property belonging to Canada or Exemption of

1 11 -1 t. •. , , ' i ,. 1 public lands,

auy province shall be liable to taxation.^ &c.

' No lands belonging to Canade
w any province shall be liable to
[Miition. Here public lands must
Ik intended. They evidently mean
lands which were, at the time of
™ Union, in some sense publici
pm, and in this respect they re-
wive illustration from another
section (117) ; see also the corres-

ponding section, 125, and sec. 109,
where equivalent words are used.

Earl Selborne in Att.-Gen. of
Ontario v. Mercer, July 18, 1883,
8 App. Cas. 767 ; 52 L. J. P. C. 84 ;
49 L. T. 312; and ante, p. 516:
Leprohon v. City of Ottawa, 40
U. C. Q. B. 478; 2 O. A. B.
522.

Provincial con-
solidated re-
venue fund.

il :

* I

Quirt v, Beo,

Att.-Gen. of
Ontario v.
Mercer.

536 B.TSr.A. ACT, s. 12G.— CONTRAST WITH s. 102.

126. Such portions of the duties and rcA'cmies over
which the respective Legislatures of Canada, Nova
Scotia, and New Brunsicick had, hefore the Union,
power of appro^jvialion as are hy this Act reserved
to tlie respective (lOA'erunients or Legislatures of the
Provinces, and all duties and revenues raised by them
in accordance with the special poAvers confei'red upon
them by this Act, shall in each Province foini one
consolidated K-evenue Eund, to be appropriated for the
Public Service of the province.^

1 Reed v. Moussemi, 8 S. C. R.
408.

This eml)races provincial i-c\t'-
mies other than those arising from
territorial sonrces, and includes all
duties and revenues raised l)y the
provinces in accordance with the
provisions of the Act, and favours
the right of the Crown for the
benefit of the province, because it
describes the interest of the pro-
vinces as a right of appropriation
to the public service; and seeing
the successive decisions of the
Judicial Counnittee, Att.-Gen. of
Ontario f. Mcrcei', 8 Apj). Cas. 7U7 ;
St. Catherine's ^lilling anil Lum-
ber Co. V. The Queen, 14 App. Cas.
4G; Att.-Gen. of British Columbia
V. Att.-Gen. of Canada, 14 App.
Cas. 295, in the case of territorial
revenues, are based on the general
recognition of Her Majesty's con-
tinued sovereignty under the Act
of 1867, so far as regards \e.sting
in the Crpvvn, the siune conse-
(juence must follow in the ca.se of
provincial revenues which are not
territorial : IMaritime Bank of
Canada v. New Brunswick Re-
ceiver-General, [1892] A. C. at
p. 444. Sec ante, p. 29<5.

Earl Selborne, in Att.-Gen.
OF Ontario v. Mehcer, Julv 18,
1883, 8 App. Cas. 767 ; 52 L. J.
P. C. 84; 49 L. T. 312; ante,
p. 515, held that the words in
sec. 102, "shall belong to the
several provinces," were equiva-
lent to those ujed iu this Section

(126), and "are by this Act rcspncd
to the respective govenimciits or
legislatiu'es of the provinces," Ami
his Lordship coiitinuLMl— " Tliiit
they do not apply to all lands licM
as private property at the time of
the Union seems clear from the cor-
responding language of sec. 12.5,
" No lands or property helongiii;;
to Canada or any province shall
be liable to taxation," wluM'e public
property only nmst be intemlcd.
They evidently mean hauls, kv.,
which were at the time of tlu'
Union in .some sense and to soi. ^
extent piiblici juris; and in this
respect they receive illiistriitions
from another section, the 117th.''

In Quirt v. Rec, 'Nov. Ki,
1891, 19 S. C. R. oIO, the Do-
minion Parliament incorporateil
trustees, giving them power, so hir
as was neces.sary for the wincliug
up of the U])per Canadian Bank,
which was insolvent, to cany on
the same. By a snbseiincnt Act
they transferred to the Dominion
Government all the property of the
bank vested in the trustet-v
Amongst the assets was a piece of
mortgaged land, and this was sold
to pay the Ontario assessment tai
The ' Dominion claimed it wfl'^
Crown property and was not sub-
ject to taxntion.'TheSii])rcuie Court

held the Acts above meiitioneihvero
valid and intra vires, and that tlie
land was not subject to taxation,
Sec a note of this case, mite, sub-
.sec. 21, .sec. 91, ante, !>. 85.

S:^^

B.N.A. ACT, H. 129.— POWER TO ALTER LAWS. 537

lines over
d((, Nova
le Union,
rosevA'cd
'OS of the
L by them
v\v(\ upon
t'oi'in one
ed for tlic

5 Act rt'Sfrvcil

vi'niuionts or

viiiw's." Ami

uicd— " Tliiit

alllmuls kid

t the time of

from tlm coi'-

ot sec 125,

I'ty helonginj;

irovinee shall

' whcru public

lit" inteudcd.

II huuls, itc,

tiino of till'

and to SOI. "

; and in this

illiistnitiiins

the 117th.''

Nov. u;,

510, the Do-

ineorporateil
power, so tar

the windiug
nadian Bank,

to carry ou
bscqiient Act
he Dominion
iroperty of the
the trustet.*.
vas a piece of

this was soli!
isessment tax
iuied ii w!!^
\v!is not sii'^-

upreme Court

entionedwei'i;

and that the
t to taxation.
ISP, ante, sub-

p. 85.

S/>S^

IX. — Miscellaneous Provisions.
Geno'ftl.

127. H' any person, beini? at the passing of this Act ^^o'c^ncniors
a member of the Legislative Council of Canada, Nova hoing Senators.
l^cotia, or New Brunswick, to whom a place in the
Senate is offered, docs not within thirty days thereafter,
bv writing under his hand, addressed to the Governor-
General of the province of Canada or to the Lieutenant-
Governor of Nova Scotia or New Brunswick (as the
ctise may be), accept the same, he shall he deemed to
have declined the same; and any person avIio, being
at the passing of this Act a member of the Legislative
Cowicil of Nova Scotia or New Brunswick, accepts a
place in the Senate, shall thereby vacate his seat in

!il.

snch Legislative Council.

128. Everv memher of the Senate or House of Oath of aiie-

. gianco, &c.

Commons of Canada shall, before taking his seat
therein, take and subscribe before the Governor-
General, or some person authorized by him, ant, every
member of a Legislative Council or Legislative Assemhly
of any province shall, before taking his seat therein,
take and subscribe before the Lieutenant-Governor of
tlie province, or some person authorized by him, the
oath of allegiance contained in tlie Fifth Schedvile to
tliis Act ; and every member of the Senate of Canada
and every member of the Legislative Council of Quebec
shall also, before taking his scat therein, take and
sul)scril)c before the Governor-General, or some person
authorized by him, the declaration of quahfication
contained in the same schedule.

129. Except as otherwise provided bv this Act, all Continuance of

I . „ , _.,. existing laws,

iaws m force in Canada, Nova Scotia, or New Brans- courts, officers,
wick at the Union, and all courts of civil and criminal
jurisdiction, and all legal commissions, powers, and
authorities, and all officers, judicial, administrative, and
ministerial, existing therein at the Union, shall con-
tinue in Ontario, Quebec, Nova Scotia, and New Brum-

ii!

! ;!

i;:;

iiili

': 1 \

'■■. - ^

lllH-

5'; I!

If"

B38 B.N. A. ACT, s. 120— DEATH SENTENCE, RESPITE.

wick respectively, as if the Union had not heen made •
subject, nevertheless (except with respect to such as
are enacted hy or exist under Acts of the Parliament of
Great Britain or of the Parliament of the United
Kingdom of Great Britain and Ireland), to be repealed,
abolished, or altered by the Parliament of Canada, or
by the legislature of the respective province, according
to the authority of the Parliament or of that legislature
under this Act.^

dobie v. thk

Temporalities

Board,

EiEL V. The
Queen.

1 See Valin v. Lnnglois, 3 Can.
S. C. 1, and ante, p. 18.

In I)(iniK V. TiiE Temi'ORAli-
TiEs Board, 21 Jan. 1882, 1 App.
Cas. 13G; 51 L. J. P. C. 2() ;
46 L. T. 1, on ajjpi-al from Queen's
Bench, Lower Canada, the question
was whether the Legislature of
Quebec had power by its Act in
1875, 38 Vict. c. 64., to niodifv
or re])eal enactments of a statute
passed by the province of Canada
in 1858, 22 Vict. c. 66., for tlie
purpose of incorjioratinfj a Board
of Management of the funds
(.9127,448.5) '>f the Presbyterian
Chtu'ch of Canada in connection
with the Church of Scotland. The
Judicial Committee held that siich
an Act was ultra vires, and 'Lat an
Act of the Dominion was necessary.
[(Sec full report of this case, ante,
p. 272,]

The Dominion Act 43 Vict,
c. 25. provided for criminal trials
before two magistrates and six
jurymen instead of, as in England,
a judge and 12 jurymen. By
Imperial Act 34 & 35 Vict. c. 28.,
the Dominion was given ]iower to
pass any Act for the administration,
peace, order, and good government
of any territory not for the time
being included in any province.
Held that under 43 Vict, c, 25, the
prisoner was properly tried, the
words of the imperial statute being
apt to authorize the utmost discre-
tion of enactment for the attain-
ment of the objects pointed to.
Kiel V. The Queen, Oct. 22, 1885,
10 App. Cas. 675.

13 Oct. 1885. An applicntioii
was made this day to grant an ad-
journment of the hearing of Ricl's
petition for leave to appeal from
Q. B. Manitoba. The grounds for
the application were that the Ca-
nadian coinisel with the full facts
and documents had not airivtd.
That with the information to iiaiid
it would be utterly impos^s^ible to
state the grounds of appeal: (1)
The evidence was not taken down in
wi'iting, as shorthand notes cannot
be called taking in writing ; (2) ou
appeal to Ct. of Q. B. Kiel wa« not
permitted to be present ; (3) tliat
the stipendiary magistrate who took
the evidence had no jurisdiction to
try the prisoner.

Lord Halsbury, L.C., said: It
is impossible to conjecture a case
in which there was less substantial
material afforded for delay. But
looking to the extreme gravity of
the issue involved, their Lordships
are compelled to come to the con-
clusion that they ought to yield
the delay. During these proceed-
ings Kiel was granted a further
respite.

Ou 21 Oct. 1885 [present Hals-
bury, L.C., Lord Fitzgerald, Lord
Monkswell, Lord Hobhousc, Lord
Esher, M.E., and Sir Barnes Pea-
cock], the application came on to
be heard. It appeared liiel had
been sentenced to death in the
North-West Territories of Canada,
and tliat sentence had been con-
firmed on appeal by the Q. B.,
Manitoba. By the B. N. A. Act,
1871, the North- West Territo-
ries became part of the Dominion.

B.N.A. ACT, H. 129.— CRIMINAL CASE.

539

The Domiuiou passed tlio North-
West Territories Act, 1880, which
I'ave power to try "all criminal
luses" liy a tribunal of two magis-
trates (one a stipendiary magistrate
iiml tlie other a justice of the peace)
and a jury of six, instead of a
judge nnd 12 jurymen, as in Eng-
land. Kiel's counsel contended
that it WIS not competent for the
Dominion Parliament under the
Act of 1871 to enact a law wliicli
toolv away from a person cliarged
witli treason tiie right to he tried
liya jury of 12, and whose ver(Uct
must be unanimous. [Sir Barnes
IVaeock : Tlie same words occur
in tlie Act relating to Ind' i under
which the Penal Code and the
Code of Criminal Procedure had
Ihtu passed, and if they had the
effect eontundcd for, no trial could
take [ilaco in India. Lord Hals-
liuiy: What arc the authorities
for appeal in a criminal case ?]
New South AValcs v. liertrand,
1 L. E. P. C. 520 ; The Queen
i: Coote, 1 L. 11. P. C. 599. [*Ve
(iiite, p. 118, for other cases.]

Lord ]Moukswell : Their Lord-
ships have stated on one or two
(iccasious that they had jurisdiction
to admit a criminal appeal, hut as
a rule they never did except under
yvry particular circumstances. If
the prisoner had been tried without
n jury, that would have been a
ground of appeal.

Lord Fitzgerald: There is no-
thing iu the Act of 1880 making
the decision of the Q. B. of Mani-
toba final. There was only a
limited appeal to that Court, and
therefore the inference from the
Act rather was that the larger
light of ap[)cal to the Queen had
not been abandoned.

22 Oct. 1885. 10 App. Cas.
675; 55 L. J. P. C. 28 ; 54 L. T.
339. Judgment refusing leave to
apiKal was delivered by Lord Hals-
bury, L.C, :—

"This i.s a petition of Louis Kiel,
tried in July last at Regina, in the
Nortb-West Territories of Canada,
and convicted of high treason, and

sentenced to death, for leave to ^'"'' *•• Thb
appeal against an order of the '*''^*'''
Queen's Bench of Manitoba con-
firming that conviction.

"It is the usual rule of this
Committee not to grant leave to
appeal in criminal cases, except
where some clear departure from
the requirements of justice is al-
leged to have taken place. Whether
in this case the prerogative to grant
an aijpeal still exists, as their Lord-
ships have not heard that question
argued, they desire neither to affirm
nor to deny, but they are clearly
of opinion that in this case leave
should not be given. The peti-
tioner was tried inider the pro-
visions of an Act passed by the
Canadian Legislature, providing for
the administration of criminal jus-
tice for those portions of the Nortli-
West Ter itory of Canada in which
the offence charged against the peti-
tioner is alh-ired to have been com-
mitted. No question has been
raised that the facts as alleged were
not proved to have taken place, nor
was it denied before the origjnal
tribunal, or before the Court of
Appeal in Manitoba, that the acts

attributed to the petitioner amount-
ed to the crime of high treason.
"The defence upon the facts

sought to be established before the

jury was, that the petitioner was

not responsible for his acts by

reason of mental infirmity. Tlie

jury before whom the petitioner

was tried negatived that defence,

and no argument has been pre-
sented to their Lordships directed

to show that that finding was

otherwise than correct. Of the ob-

ji'ctions raised on the face of the

petition two points only seem to be

capable of plausible or, indeed, in-
telligible expression, and they have

been urgtnl before their Lordships

with as much force as was possible,

and as fully and completely in

their Lordships' opinion as it would

have been if leave to appeal had

been granted, and they have been

dealt with by the judgments of

the Court of Apjical in Manitoba

i 11^

'.I

'I''lii

:i'->\

!:l

Ilii

!i !

t'(f

Kiel v. Tim
Queen.

'I I

540 B.N'.A. ACT, s. 129.— ENGLISH AND DOM. LAW.

witli a patience, |puniin<;, niul
ability that leav«'s very little to be
said upon them.

"The first point is tliat the Act
itself under which the petitioner
was tried was ii/tro viris the Do-
minion Parliament to enact. That
Parliament derived its authority for
tlie pj ssint^ of that statute from
the Imperial Statute .'11 & 3.i
Vict. c. 2S., which enacted that
the Parliament of Canada may from
time to time make provision for
the administration, peace, order, and
}^ood government of any territory
not for the time bcMUg included in
any province. It is not denied
that the place in (piestion was one
in respect of whicli the Pin'liament
of Canada was authori/.t'd to make
such provision, but it appears to
be suggested that any provision
differing from the provisions which
in this country have been made for
administration, jieace, order, and
good government cannot, as mat-
ters of law, be provisions for peace,
order, and good government in the
territories to which the statute re-
lates, and further that, if a coiu't of
law should come to the conclusion
that a particular enactment was not
calcidated as matter of fact and
[lolicy to secure peace, ordei', and
good government, that they would
be entitled to regard any statute
directed to those objects, but which
a court should think likely to fail
of that effect, as ultra vires and
beyond the competency of the Do-
minion Parliament to enact.

" Their Lordships are of opinion
that there is not the least colour for
such a contention. The words of
the statute are apt to authorize the
utmost discretion of enactment for
the attainment of the objects
pointed to. They are words under
which the widest departure from
criminal procedure us it is known
and practised in this country have
been authorized in Her Majesty's
Indian Empire. Forms of proce-
dure unknown to the English com-
mon law have there been esta-
blished and acted upon, and to

throw the least doubt upon thfi
validity of pow(!rs convcvcd In-
those words would be of widdv
mischie\ous conseipuMicc. Tlicri'
was indeed a cfjutcntion npon tlio
construction of the CaiiadiaiiStatiiti'
43 Vict. c. 25., that liigh tivasun
was not incUulcd in the words
'any other crimes,' but it is ton
clear for argiunent, even witliont
the assistance affonlcd by tlic lOth
sub-section, that the Dominion
Legislature contempliited high ticii-
.son as comprehended witliin tin;
language employed.

" The second point suggested ns-
sumes the validity of the Act, hut
is founded upon the nssiiniption
that the Act has not been com-
plied with. By the 7th sub-scctiou
of the 76th section, it is pnnidwl
that the nuigistrate shall take or
cause to be taken in wrilinj; full
notes of the evidence and otlior
proceedings thereat, and ' is su;;-
gested that this ])rovision has not
been complied with, because, tlioiif;li
no complaint is made of iiiiiccuiiKv
or mistake, it is .said that tlu^ nnics
were taken by a shorthand writer
under the authority of the nuigis-
trate, and by a std)seqncnt ])rn-
cess extended into ordinarv writ-
ing intelligible to all. Their Lonl-
ships desire to exjircss no opinion
what woidd have been the efFect
if the provision of the statnte liiul
not been complied with, liecanse it
is unneces.sary to consider whether
the provision is directory oidy, or
whether the failure to (!oini)ly with
it would be ground for error, inns-
much as they are of opinion thiit
the taking full notes of the evidcmr
in shorthand was a causing to lie
taken in writing fidl notes of the
evidence, and a literal conii)liauee
therefore with the statute.

" Their Lordships will, tlieiefore,
humbly advi.se Her Majesty thiit
leave should not be granted to
prosecute this appeal."

The first step to be taken with a
A-iew to test the validity oi an Act
of the provincial legislature, is to
consider whether the subjert-mBtter

B.N.A. ACT, s. 120— REPEAL BY PROVTNCE.

641

of tlip Act falls within any of
till' i'liis.'«'s of subjects fniiniemtcd
ill sec. 92. If it "iocs not, then the
Ai't is of IK) validity. If it tloes, then
tlu'sc further (lue.stions may arise,
iiiimcly, •' whether, notwithstuntlin;;
tlmt it is so, the subject of the Act
does nut also fall within one of
till' I'liuuit'i'ateil classes of subjects
in sir. 01, anil whether the [)ower
of the iiiovincial legislature is or
is not thereby overborne." [Sra
Ldiil Watson" in Dobie c, Tennjo-
nilitii's Boanl, 21 Jan. 18H2 ; 7
Apii. Cas. i;}6 ; 51 L. J. P. 0. 20 ;
■10 L. T, 1 ; anil ante, p. 278.]

In GiMi'FiTir r. Kioux, .Tune
21). 1H83, <> Legal News, 21 1, it was
lielil that the Ontario Legislaturi^
coiilil nut repeal the Tcmix'ranee

Act of 1804, 27 & 28 Viet.
(Ontario) c. 18., by a provincial
Act passed after confederation, on
the ground that the province could
not repeal what they could not re-
enact [See also Hart v. Corp.
of Missisiiuoi, 3 Q. L. U. 180;
Cooey I". Miniicipality of Bronie,

21 h. 0. J. 182 ; Cowan r. Wright,
1870, 23 Grant (ilO ; lie Goodhue,
19 (rrant 30() ; Bourgoln i*. La
Coinpagnia Du Cheinin de Fer do
Montreal, &v., 5 App. Cas. oSl,4J)
L. .1. P. C. 08 ; Evans r. Hud-n,

22 L. C. J. 2()8 ; Leprohon i-. Cor;,
of Ottawa, 2 Tupp. 522, 10 U. C. !!.
478; and the Att.-Gen. of Ontavio
i: Att.-Gen. of Canada (Tie Pro-
hibition Liquor Case), post, Ap-
pendix C.

Oripfitii t;
U10U.X.

130. Until the Parliamont of Canada otherwise Transfer of

, - . . ofncors to

provides, all officers or the several provinces having Canada,
duties to discharge, in relation to matters other than
those coming within the classes of suhjccts hy this
Act assigned exclusively to the legislatures of the pro-
vinces, shall he officers of Canada, and shall continue
to discharge the duties of their respective offices under
the same liahilities, responsihilities, and penalties as if
tlie Union had not been made.

131. Until the Parliament of Canada otherwise Appointment of
provides, the Governor-General in Council may from '"'^^ '^

time to time appoint such officers as the Governor-
General in Council deems necessary or proper for the
effectual execution of this Act.

132. The Parliament and Government of Canada '^J'^'^^y °^''e*"
shall have all powers necessary or proper for performing

the obligations of Canada or of any province thereof,
as part of the British Empire, towards foreign countries,
arising under treaties between the Empire and such
foreign countries.^

^It was held In re Charles dition Act, 1870 (32 & 33 Vict. /» r« Chablbs
Worms, writ of Habeas Corpus, c. 52.), Imperial, applied to Canada^ '^^•"""•
22 L, C. J. 109, that the Extra, and was not inconsistent with this

'II

J!!

1. 1 '

1 1

542

RN.A. ACT, s. 132— EXTUADITIOX ACTS.

In rt Charlesi

AVOHMS.

Hoction. And the Caniuliiin Extra-
dition Act, lH(!n (;U Vict. c. 94.),
acconlin}^ to Doiion, ('..!., niM,'*t ho.
taken as part of tlif Act of 1H70.
See Inipciial Act 3(5 & 37 Vict.

f. fiO, [post, ScluMJlllc A.]; Hll,l

Dominion Acts -K) Vict c 2')
4r) Vict. cc. lit). 21. J aii.l Itisf'
IHHO.c. 142. ' ■

Use of English
and French
languages.

■HI

Appointment
of executive
oflBcers for
Ontario and
Quebec.

133. Eithe th(? English or Eroncli langimafc ninv
1)0 used by any person in the (lcl)at(«s of the Houses
of the rarliament of Canada, and of the Houses of the
Legislature of Quohpc ; and hoth those languages sliall
Ijo used in the resj^ective records and journals of those
Houses ; and either of those languages may ho used
by any person or in any pleading or process In or
is.suing from any court of Canada established uiuler
this Act, and in or from all or any of the courts of
Quebec.

The Acts of the Parliament of Canada and of iho
Legislature of Qnchec shall be printed and piihlislied
in both those languages.

Ontario and Quebec.

134. Until the Legislature of Ontario or of Quehc
otherAvise provides, the Lieutenant-Governors of Ontario
and Quebec may each appoint under the great seal of
the province the following officers, to hold office durinj,'
pleasure, that is to say, — the Attorney-General, the
Secretary and Registrar of the province, the Treasurer
of the province, the Commissioner of Crown Ltiuls,
and the Commissioner of Agriculture and Public "Works,
and in the case of Quebec the Solicitor-General, and
may, by order of the Lieutenant-Governor in Couucil,
from time to time prescribe the duties of those oflBcers,
and of the several departments over -which thoy shall
preside or to which they shall belong, and of the
officers and clerks thereof, and may also appoint other
and additional officers to hold office during pleasure,
and may from time to time prescribe the duties of
those officers, and of the several departments over

n.N.A. ACT, 8. 135— PROVINCIAL SEALS.

648

■ ■■«

which thoy shall preside or to which they shall belong,
and of the ofTiccrs and clerks thereof.^

1 xiie {^reat hphI of each pro- was Htill to bo used notwlth-
vince lis lioiii^ the iiioilo in wliich stundiuf^ (.-oiifederntion.
the .soviTfif,'!! i)o\ver is Hi",'uilletl,

135. Until the Legislature of Ontario or Quebec Powew, dutio
otherwise provides, all rights, powers, duties, lunctions, tivoofflcew.
rospoiisibilities, or autiioritios at the passing of this
Act vested in or imposed on the Attorney-General,
Sohcitor-Genoral, Secretary and R{»gistrar of the Pro-
vinco of Canada, Minister of Finance, Commissioner
of Crown Lands, Comraission(n' of Public Works, and
Mniister of iVgriculture and Receiver-General, by any
law, statute, or ordinance of Upper Canada, Lower
Ciinada, or Canada, and not repugnant to this Act,
shall be vested in or imposed on any officer to be
appointed by the Lieutenant-Governor for the dis-
charge of the same or any of them; and tlie Com-
missioner of Agriculture and Public Works shall per-
form the duties and functions of the office of Minister
of Agriculture at the passing of this Act imposed by
the law of the province of Canada, as well as those
of the Commissioner of Public Works.

136. Until altered by the Lieutenant-Governor in Great acais.
Council, the great seals of Ontario and Quebec re-
spectively shall be the same, or of the same design,
as those used in the Provinces of Upper Canada and
Lower Canada respectively before their Union as the
Province of Canada}

'ill

1(1

' Shortly after confeileration,
seals were designed for all four pro-
vinces and for the Dominion. A
combination of those seals which
^eie accepted by the provinces
formed the seal of Canada. Off.
Can. Gaz., 20 Nov. 1M69. Nova
Scotia neglected to use the new
seal, but continued to use its old

of the Queen and said to be formed
of arms granted to it in the time of
Charles I. As to the validity of acts
done under the old seal of Nova
Scotia, see Ritchie v, Lenoir,
11 S. C. N. S. (2 Russ. & G.) 450.
3 S. C. R. 575, and for the con-
lirmation of all acts done under the
old seal, see 40 Vict. (Doni.) c. 3.

seal, transmitted on the accession and 40 Vict. (N.S.) c. 2.

137. The words '* and from thence to the end of Construction of
the then next ensuing session of the Legislature," or ^^^p""*^ "*"•

Mi
il I

544

BN.A. ACT, s. I3M.— PT^OCLAMATTONS.

words to the same effect, used in any temporary Act
of the province of Canada not expired before the
Union, shall be construed to extend and apply to the
next session of the Parliament ot Canada if the sub-
ject-matter of the Act is within the powers of the
same as defined by this Act, or to the next sessions
of the Legislatures of Ontario and Quebec respectively
if the subject-matter of the Act is within the powers
of the same as defined by this Act.^

* Reg. V. Reno and Anderson, where an old Act of Caiiiula was
continued. 4 Practice Repts. of Justice, 281.

^«n!°/"°''^ '° 138. From and after the Union the use of the
words " Tipper Canada " instead of " Ontario^^ or
" Lower Canada " instead of " Quebec," in any deed,
writ, process, pleading, document, matter, or tliinf»,
shall not invalidate the same.

names.

As to issue of
proclamations
before Union
to commence
after Union.

At> to issue of
proclamations
after Union.

139. Any proclamation under the great seal of the
province of Canada issued before the Union to take
effect at a time Avliich is subsequent to the Union,
whether relating to that province, or to Zipper Canada,
or to Lower Canada, and the several matters and
things therein proclaimed, shall bo and continue of
like force and effect as if the Union had not been
made.

140. Any procla nation which is authorized by any
Act of the Legislature of the province of Canada to
be issued under the great seal of the province of
Canada, whether relating to that province or to Upper
Canada or to Lower Canada, and which is not issued
before the Union, may be issued by the Lieutenant-
Governor of Onia7'io or of Quebec, as its subject-
matter requires, under the great seal thereof; and
from and after the issue of such proclamation, the
same and the several matters and things therein pro-
claimed shall be and continue of the like force and
effect in Ontario or Quebec as if the Union had not
been made.

•avy Act
Eoro the
V to the
tho suh-
^ of the
; sessions
pectively,
e powers

Caniida was

le of the

o;'/o," or

any deed,

or thill!?,

B.N.A. ACT, s. 141.— ARBITRATION. 545

141. The penitentiary of the province of Canada Penitentiary,
shall, until the Parliament of Canada otherwise pro-
vides, be and continue the penitentiary of Ontario and

of Quebec.

142. The division and adiustment of the debts, Arbitration rt-

, . •' specting debti,

credits, liabilities, jjroperties and assets of Upper &c.
Canada and Lower Canada shall be referred to the
arbitmment of three arbitrators, one chosen by the
Government of Ontario, one by the Government of
Quebec, and one by the Government of Canada, and
the selection of the arbitmtors shall not be made until
tiie Parliament of Canada and the Legislatures of
Ontario and Quebec have met; and the arbitrator
chosen by the Government of Canada shall not be a
resident either in Ontario or in Quebec}

i !

;oal of the
(U to take
10 Union,
?r Canada,
ittors and
ontinue of
not been

ed by any
Canacla to
ovince of
to Upper
not issued
lieutonant-
; subject"
cof; and
nation, the
levein pro-
force and
■on had not

' The case of The Province of Court of Lower Canada has juris-

Ontario v. The Province of Quebec di-tion over an arbitrator appointed

was in the P. C. March 1 1, 1878. by the Government of the Dorai-

In Att.-Gen. of Quebec v. nion, under this section, while such

Gray, 31 Oct. 1871, 15 L. C. J. arbitrator was acting within the

306, it was held the Superior province of Quebec.

143. The Governor-General in Council mav, from Division of

*„, records.

tune to time, order that such and so many or the
records, books, and documents of the province of
Canada as ho thinks fit shall be ai^^ropriated and
delivered either to Ontario or to Quebec, and the same
shall thenceforth be the property of that province;
or any copy thereof or extract therefrom, duly certi-
fied by the officer having charge of the original thereof,
shall be admitted as evidence.

144. The Lieutenant-Governor of Quebec may from Constitution of

i; i. i- , , . , , townships in

lime to time, by proclamation under the great seal Quebec-,
f"* the province, to take effect from a day to be ap-
pomted therein, constitute townships in those parts of
the province of Quebec in which townships are not

¥:\ \

9 23^'^.

M M

iT.

546 B.N. A. ACT, s. 146.— ADMISSION OF COLOXTES.

■ilUil

H ' !

1 H.

rf f if

then already constituted, and fix the metes and hounds
thereof.

X. — Inier-Colonial Railway.
Duty of Go- 145. Inasmuch as the provinces of Caiiado, Xoca

Ternment and ... -^'"tii

Parliament of ScoUtt, and Ncio Bvunsioick have joined in a doclava-
railway herein tiou that the constructiou of the luter-Colonial Rail-
described. ^^^ j^ esscutial to the consolidation of the Union of
British North America, and to the assent thereto of
Nova Scotia and Neto Brunsimck, and have conse-
quently agreed that provision should he made for its
immediate construction by the Government of Canada ;
therefore, in order to give effect to that agreement,
it shall he the duty of the Government and Parlia-
ment of Canada to provide for the cominoncement
within six months after the Union of a i-aihvay con-
necting the river St. Lawrence with the city of
Salifax in Nova Scotia, and for the construction
thereof without intermission and the completion thereof
with all practicable speed.

XI. — Admission of Othek Coloxies.
Power to admit 146. It shall bo lawful for the Queen, l)v and

Newfoundland, > ■, t t > o -r -«r- tt'ii

&c. into the With tlic advico of Her Majesty s most Ilonourablo
Privy Council, on addresses from the Houses of tho
Parliament of Canada, and from the Houses of tlio
respective Legislatures of the colonies or provinces of
Netofontidland, Prince Edward Island, and Britkh
Columbia, to admit those colonies or provinces, or any
of them, into the Union, and, on address from tlio
Houses of the Parliament of Canada, to admit
Btiperfs Land and the North -Western Territory, or
either of them, into the Union, on such terms and
conditions in each case as are in the addresses ex-
pressed and as the Queen thinks fit to approve, sub-
ject to the provisions of this Act; and the provisions
of any Order in Council in that behalf shall Iwvo

'■'.' if

iES.
I bounds

B.N.A. ACT, s. 147.— NEW PROVINCES.

547

1(1, Novo
(loclava-
lial Rail-
Union of
hereto of
ie conso-
le for its
Canada;
greemcnt,
id Parlia-
lencement
hvay con-
} city of
instruction
on thereof

])\ and
onouvablo
ses of tlio
t?es of the
ovincos of
ul British
2CS, or any
I'vnm the
to admit
rritory, or
:erms and
resses ex*
t)rove, sub-
provisions
shall Iwv''

effect, as if they had been enacted by the Parliament
of the United Kingdom of Great Britain and Ireland.^

1 Rupert's Land [see 31 & 32
Vide. 105., .'J2 & 33 Vict. e. 101.,
and 32 & 33 Vict. (Dom.) c. 3.] iind
tlie North-West Territory [,vee
Note, ante, p. 5] were admitted
into the Union by Order of Her
Maje.stv in Council dated 23 Juno
1870. ■

Tiio Imperial Act, 1871, 34 &
35 Vict. e. 28. s. 4, enacted that
tlio Dominion Parliament might
from time to time provide for the
"iuiministration, peace, order, and
(.'00(1 go\('rnnient of any territory
uot for the time l)eiD^ included
in any province. The Dominion
Parliament, hy Act 13 Vict. c. 2o.
(ISSO), imiilc provision for trial of
ciiminals differing from the pro-
visions for sue]) trials in England,
niinii'ly, that the accused might be
trii'd hy two magistrates and a jury
i4 i-ix, instead of, as in England, a
judjjc ami twelve jurymen. Hchl
cnmpetent of the Dominion to so
enact. Riel v. The Queen, Oct. 22,
ls85,10App.Cas. 675, ante, p.o3H.

Dritish Columbia was admitted

into the Union by Order in Coun-
cil dated 16 May 1871. Prince
Edward Island by Order of Her
Majesty in Council 26 June 1873.
[See 38 Viet. (D.) p. ix.]

Gwynne, J., describes the efifect
of this section in Att.-Gen. of
British Cohunbia v. Att.-Gen. of
Canada, 1887, 14 S. C. U. at p. 372,
as constituting the provinces wish-
ing to enter the Union as inde-
pendent powers to the extent of
enabling Ihem to negntiate a treaty
with the Dominion of Canada,
represented by the two Houses of
Parliament, as another independent
power, and together to agree upon
terms upon which the particular
province will be received into and
lieeome part of the Dominion,
" which treat)/, if and when ap-
proved of and ratified by Her
Majesty in her Privy Council,
should have the force and effect of
an Act of the Imperial Parliament."
[.See also The Manitol)a School
Case.«, ante, sec. 93, p. 371].

il:: I'

IX'

147. In ease of the admission of Newfoundland and Astorepre-

^ ^ . *' .sentation of

Prmcp Edicard Island, or either of them, each shall be Newfoundland
f'lititled to a representation in the Senate of Canada of lidward island
four incml)crs, and (notwithstanding anything in this '" ^''""*^'"
Act) in case of the admission of Newfoundland the
normal number of senators shall be seventy-six, and
tlicii' maximum number shall be eighty-two ; but
Vvince Edicard Island, -when admitted, shall be deemed
to l)c comprised in the third of the three divisions into
which Canada is, in relatioii to th<^ constitution of tlie
'^('iiate, divided by this Act, and accordingly, after the
admission of Prince Edicard Island, Avhether New-
yoitiidland is admitted or not, the representation of Nova
^cotia and New Bransvlck in the Senate shall, as
vaciincies occur, be reduced from twelve to ten mem-
1)1 IS respectively, and the rei)resentation of each of

W •

h.i

1 J '

i !

548

B.N.A. ACT, sch. 1.— OLD ELECTORALS.

those provinces shall not be increased at any time
beyond ten, except under the provisions of this Act for
the appointment of three or six additional senators
under the direction of the Queen.

SCHEDULES.

(The first and second schedules,
dealing with (A) the electoral dis-
trict of Ontario and (B) with the
electoral district of Queliee, are
now, for the purpose of representa-
tion in the House of Commons, as
given in Revised Statutes of Ca-

nada, c. 6. See that Act nlso for
electoral districts of tlie other
provinces.

The provincial legislatures have
provincial statutes fixing their elec-
toral districts.)

1. Prescott.

2. Glengarry.

3. Stormont.

4. Dundas.

5. Russell.

The first SCHEDULE.
Electoral Districts of Ontario.

Existing Electorat. Divisions.

Counties.

. 6. Carleton.
I 7. Prince Edward.
j 8. Halton.
9. Essex.

Ridings of Counties.

10. North Riding of Lanark. 22.

11. South Riding of Lanark. j 23.

12. North Riding of Leeds and 24.
North Riding of Grenville. worth

13. South Hiding of Leeds. 25.

14. South Riding of Grenvillo. worth

15. East Riding of Northum- 26.
berland. 27.

16. West Riding of Northum- 28.
berland (excepting therefrom the 29.
Township of South Monaghan). 30.

17. East Riding of Durham. 31.

18. West Riding of Durham. 32.

19. North Riding of Ontario. 33.

20. South Riding of Ontario. 34.

21. East Riding of York.

West Riding of York.
North Riding of York.
North Riding of Went-

South Riding of ^\'m\■

East Riding of Elgin.
West Riding of Elgin.
North Riding of Waterloo.
South Riding of Waterloo.
North Riding of Brant.
South Riding of Brant.
North Riding of Oxford.
South Riding of O-xford.
East Riding of Middlesei.

Cities, Parts of Cities, and Towns.

35. West Toronto.

36. East Toronto.

37. Hamilton.

38. Ottawa.

39. Kingston.

40. London.

41. Town of Brockvillo, with

the Township of Elizabethton
thereto attached.

42. Town of Niagara, witl
the Township of Niagara thereto
attached.

43. Town of Cornwall, vi\l
the Township of Cornwall thereto
nttnched,

B.N.A. ACT, sth. 1.— ELECTORAL DISTRICTS. 549

my time

s Act for

senators

Act also for
t' tl\e other

islatuves have
ins their elec-

m\.

of York,
jg of Yort
ling

of Went-

in:

linfl of Vi'iit-

of Elgin-
g of Elgin.
ng of WftteiloO'
mg of Waterloo.
ig of Brant,
ng of Braut.
ing of Oxford.
ng of Oxford.
of Middlesex.

;8.

pf ElizabethtoOT

Niagara, mtl
f Niagara tbertW

Cornwall, wit
Cornwall tberew

50.

New Elbctoral Divisions.

44. The Provisional Judicial District of Alooha.

The County of Bruce, divided into Two Ridings, to be called respec-
tively the North and South Ridings : —

45. The North Riding of Bruce to consist of the Townships of

Bury, Lindsay, Eastnor, Albemarle, Amabel, Arran, Bruce,
Elderslie, and Langeen, and the Village of Southampton.

46. The South Riding of Bruce to consist of the Townships of

Kincardine (including the Village of Kincardine), Greenock,
Brant, Huron, Kinross, Culross, and Carrick.

The County of Huron, divided into Two Ridings, to be called re-
spectively the North and South Ridings : —

47. The North Riding to consist of the Townships of Asbfield,

Wawanosh, Turnberry, Howick, Morris, Grey, Colborne,
Hullett, including Village of Clinton, and McKillop.

48. The South Riding to consist of the Town of Goderich and

the Townships of Goderich, Tuckersniith, Stanley, Hay,
Usborne, and Stephen.
The County of IVIiddlksex, divided into Ridings, to be called respec-
tively the North, West, and East Ridings : —

49. The North Riding to consist of the Townships of McGillivray

and Biddulph (taken from the Coui.:^ of Huron), and

Williams East, Williams West, Adelaide, and Lobo.
The West Riding to consist of the Townships of Delaware,

("arradoc, Metcalfe, Mosa, and Ekfrid, and the Village of

Strathroy.
[The East Riding to consist of the Townships now embraced

therein, and be bounded as it is at present.]
The County of Lambton to consist of the Townships of

Bosanquet, Warwick, Plympton, Sarnia, Moore, Enniskillen,

and Brooke, and the Town of Sarnia.
The County of Kent to consist of the Townships of Chatham,

Dover, East Tilbury, Romney, Raleigh, and Harwich, and

the Town of Chatham.
The County of Bothwkll to consist of the Townships of

Sonibra, Dawn, and Euphemia (taken from the County of

Lambton), and the Townships of Zone, Camden with the

Gore thereof, Orford, and Howard (taken from the County

of Kent).
The County of Grey, divided into Two Ridings, to be called respec-
tively the South and North Ridings :—

54. The South Riding to consist of the Townships of Bentinck,

Glenelg, Artemesia, Osprey, Normanby, Egremont, Proton,
and Melancthon.

55. The North Riding to consist of the Townships of Colliugwood,

Euphrasia, Holland, Saint-Vincent, Sydenham, Sullivan,
Derby, and Keppel, Sarawak and Brooke, and the Town of
Owen Sound.
The County of Perth, divided into Two Ridings, to be called re-
spectively the South and North Ridings :—

'^" The North Riding to consist of the Townships of Wallace,
Elma, Logan, Ellice, Mornington, and North Easthoiie, and
the Town of Stratford.

53.

56.

Ill'

lilMl:

t 1

550 B.N.A. ACT, sfli. 1— ELECTORAL DISTRICTS.

57. The South Ri(liuf>' to consist of the Townships of BliincharH

Downic, South Easthope, Fulhirton, Hiltberl, mui the
Viliiiges of Mitchell and Ste. Marys.
The County of Wellington, divided into Three Ridiiifj;s, to l)c inUci
ivs[)eeti\i'ly North, South, and Centre Ridings: —

58. The North Riding to consist of the Townships of Aiuaniiitii

Arthur, Luther, ^linto, Maryborough, Peel, and tlu; Villii(ri.
of Mount Forest.

59. The Centre Riding to consist of the Townships of GariitVaxii

Erin, Eramosa, Nichoi, and Pilkington, and the Vilhigos ol

Fergus and Elora.
00. The South Riding to consist of the Town of Cluelpli, and tlic

Townships of Guelph and Puslinch.
Tlu' County of Norfolk, divided into 'I'wo Ridings, to Ik^ calkd
respectively the South and North Ridings : —

Gl. The South Riding to consist of the Townsiiipsof Charlottcvillr,

Houghton, Walsingluun, and Woodhousc, and with tlic Goio

thereof.
()2. The North Riding to consist of the Townships of ^liildlftoii,
■ Townsend, and Windham, and the Toun of Sinicoc.

().'3. The County of Haldimaxd to consist of the Townslii]i>. oi

Oneida, Seneca, Caguya Nortii, Caguya South, Kayulunn,

Walpole, and Dunn.
'U. The County of Monck to consist of the Townsliips of ('an-

borough and Moultoii, and Sherbrooite, and the Villii'ii' of

Dunville (taken from the County of Halilimand),tli(' 'J'ciwn-

ships of Caistor and Clainsborough (t^iken from tlio County

of Lincoln), and the 'J'ownshii)s of Pelham and WaiiilliTt

(taken from the County of Welland).
U5. The County of LiNCt)LN to consist of the Towiisliiih ui

Clinton, Grantham, Grimsby, and Louth, and the Town ot

St. Catherines.
66. The County of Welland to consi;<t of the T()\vnslli[)^ ui

Bertie, Crowland, Humberstone, vStamford, Tliorold, Mini

Willoughby, and the Villages of Chippewa, Clifton, i'on

Erie, Tliorold, and Welland.
U7. The County of Pi,EL to consist of the Townships of Cliiugii:!-

cousy, Toronto, and the Gore of Toronto, and the Villii<re.»

of Brampton and Streetsville.
liH. The County of Cardwell to consist of the To\vnsllill^ ot

Albion and Caledon (taken from the County of Peel), ami

the Townships of Adjala and Mono (taken from the Conutv

of Simcoe).
The County of Sijicoe, dixided into Two Ridings, to be called it-
spectively the South and the North Ridings : —

6!). The South Riding to consist of the Townships of AVc.<t

Gwillimbury, Tecumseth, Innisfil, Essa, Tosorontio, Mul-

mur, and tlie Village of Bradford.
I 70. The North Riding to consist of the Townships of Nottiiwasuga,

Sunni<lale, Vespra, Flos, Oro, Medonte, Orillia and Matchc-

dash, 'J'iny and Tay, Baiaklava and Robinson, and tbe

Towns of Barrie and CoUingwood.
'l"he County of Victoria, divided into Two Ridings, to be called
respectively, the South and North Ridings : —

71. The South Riding to consist of the Townships of Ops, Mm'-

posa, Emily, Verulam, and the Town of Lindsay.

B.X.A. ACT, «cli. 1— ELKCTOllAL DISTHICTS. o5l

72. The North Riding to consist of the Townships of Anson,

Boxley, Carden, DaUoii, Dighy, Eldon, Fenelon, Hiudon,
Laxton, Lutterworth, Macaulay and T3raper, Sommerville,
and Morrison, Muskoka, Monck and Watt (taken from the
County of Simcoe),and any other surveyed Townships lying
to the North of the said North Hiding.

The Coiuity of Petehboiiouoh, divided into Two Ridings, to be
willed respectively the West and East Hidings : —

73. The West Riding to consist of the Townships of South

Monaghan (taken from the County of Northumberland),
North Monaghan, Smith, and Ennismore, and the Town of
Peterborough.

74. The East Riding to consist of the Townships of Asphodel,

Belmont and Methuen, Douro, Dummer, Galway, Harvey,
Minden, Stanhope and Dysart, Otonabee, and Snowden, and
the Village of Ashburnham, anil any other surveyed Town-
ships lying to the North of the .said East Riding.

Tlio County of Hastings, divided into Three Ridings, to be called

rc^licetively the West, East, and North Ridings : —

75. The West Riding to consist of the Town of Belleville, the

Township of Sydney, and the Village of Trenton.
70. The East Riding to consist of the Townships of Thurlow,
'J'yeniiinaga, ami Hungerford.

77. The North Ritling to consist of the Townships of Rawdon,

Huntingdon, Madoc, Elzevir, Tudor, Marmora, and Lake,
and the Village of Stirling, and any other surveyed Town-
ships lying to the North of the said North Riding.

78. The County of Lennox to consist of the Townships of Rich-

mond, Adolphustown, North Fredericksburg, South Fre-
dericksburg, Ernest Town, and Amherst Island, md the
Village of Napanee.

79. 'J'he County of Addington to consist of the Townships of

Camden, Portland, Sheffield, Hinchinbroke, Kaladar, Ken-
nebec, Olden, Oso, Anglesea, Barrie, Clarendon, Palmerston,
Elfingham, Abinger, Miller, Canonto, Denbigh, Lough-
borough, and Bedford.

80. The County of Frontenac to consist of the Townships of

Kingston, Wolfe Island, Pittsburg and Howe Island, and
Storrington.

The County of Renfrew, divided into Two Ridings, to be called
iwiicetivel} the South and North Ridings :—

81. The South Riding to consist of the Townships of McNab,

Bugot, Blithfield, Brougham, Horton, Admaston, Qrattan,
Matawatchan, Griffith, Lyndoch, Raglan, Radcliffe, Brude-
nell, Sebastopol, and tho Villages of Arnprior and Renfrew.

82. The North Riding to consist of the Townships of Ross,

Bromley, Westmeath, Stafford, Pembroke, Wilberforce,
Alice, Petawawa, Buchanan, South Algona, North Algona,
Eraser, McKay, Wylie, Rolph, Head, Maria, Clara, Haggerty,
Sherwood, Burns, and Richards, and any other surveyed
Townships lying North-westerly of the said North Riding.

livery Town and incorporated Village existing at the Union, not
^Pwially mentioned in this Schedule, 15 to be taken as part of the
Utmtv or Uidiug within which it is locally situate.

'1'

' li

li ' -f

;( v:

2 J i s «

ill III

if.

652 B.N.A. ACT, sch. 2.— QUEBEC DISTRICTS.

The second SCHEDULE.

Electoral ZHttricts of Quebec specially fixed.

Counties op —

Pontiac.

Missisquoi.

Compton.

Ottawa.

Brome.

Wolfe and Richmond

Argenteuil.

Shefford.

Megantic.

Huntingdon.

Stanstead.

Town of Sherbrooke.

The third SCHEDULE.

Provincial Public Works and Property to be the Property

of Canada.

1. Canals, with Lands and Water Power connected therewith.

2. Public Harbours.

3. Lighthouses and Piers, and Sable Island.

4. Steamboats, Dredges, and public Vessels.

5. Rivers and Lake Improvements.

6. Railways and Railway Stocks, Mortgages, and other Debts due by
Railway Companies.

7. Military Roads.

8. Custom Houses, Post Offices, and all other Public Buildingn,
except such as the Government of Canada appropriate for the use of
the Provincial Legislatures and Governments.

9. Property transferred by the Imperial Government, and known as
Ordnance Property.

10. Armouries, Drill Sheds, Military Clothing, and Muiiitious of
War, and Lands set apart for General Public Purposes.

The FOURTH SCHEDULE.

Assets to he the Property of

lJpi>er Canada Building Fund.
Lunatic Asylums.
Normal School.
Court Houses

I Lower Canada.

Aylmer,
Montreal,
Kamouraska,
Law Society, Upi^er Canada.
Montreal Turnpike Trust.
University Permanent Fund.
Royal Institution.
Consolidated Municipal Loan Fu ud.
Upper Canada.

Ontario and Quebec conjointly.

Consolidated Municipal Loan Fuml,
Lower Canada.

Agricultural Society, Upper Ca-
nada.

Lower Canada Legislative Grant,

Quebec Fire Loan.

Tamisconata Advance Account.

Quebec Turnpike Trust.

Education — East.

Building and Jury Fund, Lower
Canada.

Municipalities Fund.

Lower Canada Suijerior Education
Income Fund.

The wIFTH SCHEDULE.
Oath of Allegiance.
I A.B. do swear, that I will be faithful and bear true allegiance to
Her Majesty Queen Victoria.

Note. — The name of the King or Queen of the United Kingdom of
Great Britain and Ireland for the time being is to be substituted from
time to time^ with proper terms of reference thereto.

B.Jf.A. ACTS OF 1868, 1871.— RUPERT'S LAND. 668

Deolabatioit or Qualification. «

I A.B. do declare and testify, that I am by law duly qualified to be
appointed a member of the Senate of Canada [or as the case may 6e],
and that I am legally or equitably seised as of freehold for my own use
and benefit of lands or tenements held in free and common socage
[or seised or possessed for my own use and benefit of lands or tene-
ments held in franc-alleu or in roture (as the cane may be),'] in the
province of Nova Scotia [or as the case may be] of the value of four
thousand dollars over and above all rents, dues, debts, mortgages,
charges, and incumbrances due or payable out of or charged on or
affecting the same, and that I have not collusively or colourably obtained
a title to or become possessed of the said lands and tenements or any
part thereof for the purpose of enabling me to become a member of the
Senate of Canada [or as the case may be], and that my real and per-
sonal property are together worth four thousand dollars over and
above my debts and liabilities.

For the following Acta see Appendix A.

BRITISH NORTH AMERICA ACTS.

31 & 32 Vict. (1868) c. 105. was an Act enabling
Her Majesty to accept a surrender upon terms of the
lands, privileges, and rights of the Hudson Bay Com-
pany in " Eupert's Land."

And sec. 5 declared it was competent to Her Majesty
by Order in Council, on address from the Houses of
Parliament of Canada, to declare that RuperVs Land
should be admitted into the Dominion, and thereupon
it should be lawful for the Parliament of Canada to
establish, &c., within said land all such laws, insti-
tutions, and ordinances, and to constitute such courts
and officers, as may be necessary for the peace, order,
and good government of Her Majesty's subjects and
others therein. See the Act in full, post, Appendix A.

B. N. A. ACT, 1871.
The 34 & 35 Vict. (1871) c. 28. was an Imperial Act
confiiming the Manitoba Acts, 1870, 32 & 33 Vict.
c. 3. and 33 Vict. c. 3. (two Dominion Acts), (1)
providing for the temporary government of Buperfa
Xffwrf and the North-Westem Territory; and (2) creating
the province of Manitoba out of Rupert's Land. It
was intituled *• An Act respecting the establishment
of Provinces in the Dominion of Canada,''

ii,

'i 'I

.^! '

''1 '

M^ ■

! 1 ■ : 1

^ 1:

654 R.N.A. ACT OP 1871 — ESTABLISHING I'HOVS.

" Wliorojis doubts have l)ccn entertained rcspcctiiv^
the powers of the Parliament of Canada to estahlisli
provinces in territories admitted, or which may h(>i'e.
after be admitted, into the Dominion of Canada, and
to provide for the representation of such provinces iu
the said Parliament, and it is expedient to remove such
doubts and to vest such poAvers in the said Pavlianicnt."

Then by sec. 2 it was enacted that the Pavlianient
of Canada might from time to time establisli new
provinces ^ in any territories forming for the time
being part of the Dominion of Canada, but not in-
eluded in any province thereof, and may at tlic time
of such establishment make provision for the constitu.
tion and administration of any such provinc(; and for the
l)assing of laws for the peace, order, and good govoiii-
ment of such province, and for its representation in
Parliament.

By sec. 3 poAver Avas giA^en to the Parliament of
Canada, Avitli the consent of the legislature of any
province, to increase, diminish, or otherAvise alter the
limits of such province ; and by sec. 1 poAver to niako
provision for the administration, peace, order, and
good government of any territory not for tlic timo
included iu any proA^nce.^ Then sec. 5 aflfirmed tlio
above cited Acts ; and sec. 6 enacted that, except as
provided for in sec. 3, it Avas not to be \\\\\\m the
competency of the Parliament of Canada to alter the
provisions of the 33 Vict. (D.) c. 3. in so far as it related
to the province of Manitoba, or of any other Act

1 The Dominion bus this year
(1895) set apart the unorgan-
ised and unnamed portion of
the Dominion into provincial dis-
tricts. The territory east of Hud-
son Bay, having the province of
Quebec on the south and the At-
lantic on the east, is to be hereafter
known as " Ungava." The terri-
torj' embi-aced in the islands of
the Arctic Sea is to be known as
"Franklin." The Mackenirie river

region is to be known as " Macken-
zie," covering a spai-e of 538,000
square miles. The Pacific Coa«t
territory, lying north of Britisli
Columbia and west of Mackenzie,
is to be " Yukon," covering
225,000 square miles. In addi-
tion to this, Athabasca has been
increased by 143,500 square miles,
and Keewatin by 470,000 square
miles.

U,N.A. ACTS OP 1H75, IHHO, 1895.— POWERS OF CA. H.C. S56

hereaftci* establishing new provinces, subject always to
the I'iglit of the 3Ianitoba Leg'islature to alter any
law respecting the qualification of electors and niem-
1)018 of the Legislative Assembly and to make election

laws. , ■• . .

1 See Kiel's fuso, Oct. 22, IHHo, lO App. Ciis. 675, ami itiih', p. 53H.

B. N. A. ACT, 1875.
38 & 30 Vict. (1875) c. 38. was an Act to remove
certain doubts with respect to the powers of the
Parliament of Canada under sec. 18 of the 13. N. A.
Act, 1867. After citing that section it proceeded :
Wlioi'oas doubts haAc arisen with regard to the power
of do tilling by an ^\.ct of the Parliament of Canada,
in pui'siiance of the said section, the said privileges,
powers, or immunities, and it is expedient to re-
move such doubts. Sec. 1 repealed the 18tli section
of the B. N. A. Act, 1867, and substituted for it
anothei' enactment. See ante, p. 11.

B. N. A. ACT, 1886.

19 & 50 Vict. (1886) c. 35. gave the Parliament of
Conodd power to make provision for the represen-
tation in the Senate and House of Commons of
C'onada, or either of them, of any territory which
for the time being forms part of the Dominion, but
is not included in any province ; and sec. 2 declared
any Act passed by the Parliament of Canada, whether
before or after this Act, and notwithstanding anything
in the B. N. A. Act, 1867, was to have effect! See
the Act, jwst. Appendix A.

In 1895 was passed the 59 Vict. (2nd sess.) c. 3.,
which confirmed an Act of the Dominion of Canada
providing for the appointment of a Deputy Speaker
to the Canadian House of Commons.

Ill^ !' 1

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Preamble.

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fi56

14 GEO. 3. (. S3.-THK "Qt'EHKC ACT."

[1774.

APPENDIX A.

IMPERIAL STATUTES AFFECTING CANADA.

IJ; GEO. 3. (]774) c. 83.

Of this Act, sees. 3, 1, 6, 7, and sec. 11 lioui the
word " subject " to the end, and sees. 1*., 13, li, 15,
16, and 17, were repealed by 35 & 36 Vict. (1872)
c. 63., S. L. R. Act. The 31 Geo. 3. (1791) c. 31. had
repealed so much of this Act as related to tiie ap-
pointment of a Council for Quebec and its powers.

An Act for the more eflfectual provision for the
Government of the Province of Quebec in North
America.

WHEREAS His Majesty, by his royal proclama-
tion bearing date the 7th day of October, in the
third year of his reign, thought fit to declare the pro-
visions which had been made in respect to certain
counties, territories, and islands in America, ceded to
His Majesty by the definitive treaty of peace, con-
eluded at Paris on the 10th day of February 1703 ; And
whereas, by the arrangements made by the said royal
proclamation, a very large extent of country, within
which there were several colonies and settlements of
the subjects of France, who claimed to remain therein
under the faith of the said treaty, was left, without
any provision being made for the administration of
tbe civil government therein ; and certain parts of the
territory of Canada, where sedentary fisheries had been
established and carried on by the subjects of France,
inhabitants of the said province of Canada, under

v\ I

1771.]

It (JKO. 3. 0. (^3- OLD TIOT^NDARIES.

557

r^mnts and conc«vssions from tho GovcmTncnt thereof,
were annoxcd to tho Gov(M'nment of Newfoundland,
and tlun'(d)y 8ul)joct to rogulatious inconsistont with
tlip Tiaturo of such fisheries : May it theroforo please T''" '♦'"i'o""''.

' , * , * iNiiinax, Hiiil

Your Most Excellent Majesty that it may be enacted ; countrieg in
and be it enacted by the King's Most Excellent Ma- belongin^t""*
jcsty, by and with the advice and consent of the Lords ,i'„'"^ied"?tho
Spiritual and Temporal, and Commons, in this present K"'J^^* °'
Parliament assembled, and by the authority of tho
same, That all the t(M'ritories, islands, and countries
in North America, belonj^inj? to the Crown of Great
Britain, bounded on the south by a line from the Bay
of Clialcurs, along the high lands which divide tho
rivei's that empty themselves into the lliver Saint
Lawrence from those which fall into the sea, to a
point in 16 degrees of northern latitude, on the eastern
bank of the River Connecticut, keeping the same lati-
tude directly west, through the Lake Champlain, until,
in the same latitude, it meets the lliver Saint Law-
rence; from thence up the eastern bank of the said
liver to the Lake Ontario; thence through the Lake
Ontario, and the river commonly called Niagara ; and
thence along bv the eastern and south-eastern bank
of Lake Erie, following the said bank, until the same
shall be intersected by the northern boundary, granted
by the charter of the province of Pensylvania, in case
the same shall be so intersected; and from thence
along the said northern and western boundaries of the
said province, until the said western boundary strike
the Ohio: But in case the said bank of the said lake
shall not be found to be so intersected, then following
the said bank until it shall arrive at that point of the
said bank which shall be nearest to the north-western
angle of the said province of Fensylvania, and thence
by a right line to the said north-western angle of the
said province ; and thence along the western boundary
of the said province, until it strike the River Ohio;
and along the bank of the said river, westward, to
the banks of the Mississippi, and northward to the

TTT

;

: (H

vA\

I T

Mitji!,

Not to iiffi'Ot
till" lioumliivios
of any other
colony.

55S II ftEO.S.p.sa.— CATIIOTJrSit r«OTKSTA\Ts ri77t

southovn boundavy of tho tovritory Sfvantod to tuo
^Movc'hants Adventurers of Eiighttui, trading to llml.
son's Hay ; and also all such territories, islands, and
counties, which have, since the 10th Eehruary 17(i3, bcoii
made part of the (lovernnient of Netrfoinnlldnd, bo
and they are hereby, durinti: His ]\raj(>sty's ])l('asmv
annex(Ml to, and made i)art and parcel of, th(> pioviiu't"
ol' Qiichcc, as created and established by the said
royal proclamation ol' the 7th October ITtJ.'J.

2. Provided always, That nothing* herein eoiitaincd,
relative to the boundary of the provinct> ol' Quebec,
shall in anywise alVect the boundaries ol' any otliov
colonv.

3. Provided always, and be it (Miacted, That notl

iiiiii

Not to miiki>

liV'iits t'orin.ii.v in this Act shall extend, or be construed to exttMul,
granto.. ^^ mako void or to vary or alter any right, title, or

possession, derived under any grant, convtnaiuc, ov
otherwise howsoever, of or to any lands witliiii ilic
said province, or the provinces thereto adjoining'; l)iit
that the same shall remain an?) be in force, and li.ive
etfect as if this ..Vet had never been mad(\

Fomor pio- ^^ "And wlicrcas the i)rovisions, madi» bv tlie said 9

visions tuado . . ' _ • 'M

lor tiu-iudvi 1100 proclamation, in respect to the civil govcM'mnont ol'

voi.i iitt.r ' the said i)rovince of QiicbfO, and the ])owors and

May I, i,,.>. jmtiiorities given to the Governor and other civil olllcvrs

of tho said province, by the grants and conuuissioib

issued in consecpunice thereof. hav«^ been I'omid, \\\)m

experience, to be inapi)licable to the state and circuin-

stauces of the said province, tlie iuliabitants whtnvot

unounted, at the conipiest, to al)ove 05,000 persons

professing the religion of the Church of Homo, ami

enjoying an established form of constitution and systoin

of laws, by which their persons and property had Ihcii

l)rotected, governed, and ordennl, for a long series ol

years,, from tho first establishnuMit of tlie said I'm-

vincc of Camnhi'' ; be it therefore further enacted by

the authority aforesaid. That ihe said proclamation,

f -I

1774.1

14 GEO. 3. c. S.l — THE PROTESTANTS.

559

so far as tho same relates to the said province ol"
Quebec, and the commission nnder the authority
wluMvol" the Government of the said province is at
presotit administered, and all and every the ordinance
and ordinances made by the (U)vernor and Council of
Quebec for the time beiui?, relative to the civil i;-overn-
moiit and administration of justice in the said pro-
vinci', and all commissions to judi>:es and other otficers
tlioi'oof, 1)0, and the sanu' an* hereby, rinokt'd. nmuilled,
and made void, from and aftcn* the 1st ^fay 1775.

5 " And, for the more perfect si>curitv and ease of i"'";'''""''""'

"• ' ' , . ' . , . Qiii'lxv limy

tbo minds of the inhabitants of the said ]>roviiice,' it piotvss tii.«
IS luTt'by declared, that Ills Jlajesty s subjects, pro- sui.j.itt.. tiu-
iVssiiii^ the religion of the Ch'irch of Home of and in m'"yiri!y'.u.t
tlu> said province of Quebec, mav have, hold, and "' | 'J'"^y '■^•

1 1/ ' , ■ ' 11^,1 dm clergy

iMiiov, tlie free exercise of the rtdii>'ion of the Church •".i".v •'"'■• 'i^-

,' ' T . , ,1 ,^- , ' 111 ''iisti'meil iliiw.

Ill Rome, subject to the King's su])remacy, declared
:iiul established bv an Act, made in the first vear of
dio ivigii of Queen Elizabeth, over all tlu> dominions
and oomitries, Avhich then did or ther(>after should be-
long;, to the Imperial Cnnvn of this ri>alm ; and that
tlio clergy of the said church may hold, ri>ceive, and
oujoy, their accustomed dues and rights, with respect
to such persons only as shall profess the said religion.

6. Provided nevertheless. That it shall be lawful for iV"visioii may
Ills .Majesty, lus heirs or successors, to make such M:ij.My tmiiu-

■ „....; : 2. p ii i. !■ 1 1 • 1 i 11 Mipimrl of tlio

proMsnm out oi tiie rest ol the said accustomed dues i>,.„t,.stMnt
and rights, fov the encouragement of the Trotestant '■'''''^'•^'
ivlii^'ion, and \'oy the maintenance and support of a
Protestant clergy within tlH» said province, as h(» or
diey sjiajl, from time to time, think necessary and '
Mpedient .

No lioi'aoll pro-

7. Provided alwavs, and be it enacted. That no per- f.-*"'.'*- "";.
">on, protessiiig the religion of the Church of Rome, «'"" "''liR''' t"

.nw" ... •!■ • .1 •\ . , 11 1 1 1. 1 , tiiki- the onfliot

luu ies\(lmg in the said province, shall be obliged to i kiiz.. but lu
take the oath requiivd by the said statute passed in [utnuu.?;^'!'!
'1h> lim year of the reign* of Queen Klizabeth, or any l^';;,/;""*"'*-' '

■' r

660

14 GEO. 3. c. 83.— LAWS OF CANADA.

[1774.

other oath suhstitutecl by any other Act in the place
tliereof ; but that every such person who, by the said
statute, is required to take the oath therein meutioued
shall be obliged, and is hereby required, to take and
subscribe the following oath before the Governor, or
such other person in such court of record as His
Majesty shall appoint, who are hereby authorized to
administer the same, videlicet : — " I A.B. do sincerely
promise and swear, that I will be faithful and bear
true allegiance to His Majesty King George, and him
will defend to the utmost of my power, against all
traitorous conspiracies, and attempts whatsoever, which
shall be made against his person, crown, and dignity,
and I will do my utmost endeavour to disclose and
make known to His Majesty, his heirs and successors,
all treasons and traitorous conspiracies, and attempts,
which I shall know to be against him, or any of
them; and all this I do swear without any equivoca-
tion, mental evasion, or secret reservation, and re-
nouncing all pardons and dispensations from any power
or person whomsoever to the contrary. So help nic
f ^"^"uie oath Grod." And cvcry such person, who shall neglect or
to be subject to ref usc to take the said oath before-mentioned, shall
Act 1 Eiiz. incur and be liable to the same penalties, forfeitures,
disabilities and incapacities, as he would have incurred
and been liable to for neglecting or refusing to take
the oath required by the said statute passed in the first
year of the reign of Queen Elizabeth.

8. And be it further enacted by the authority
aforesaid, That all His Majesty's Canadian subjects
within the province of Quebec, the religious orders
and communities only excepted, may also hold and
enjoy their property and possessions, together with
all customs and usages relative thereto, and all other
their civil rights, in as large, ample, and beneficial
manner, as if the said proclamation, commissions,
ordinances, and other Acts and instruments had not
been made, and as may consist with their allegiance

His Mnjcsty's
Canadian sub-
jects (reiifeious
orders ex-
cepted) may
hold nil their
possessions,
&c., and in
matters of con-
troversy resort
may be iiad to
the laws of
Canada for the
decision.

177J.1 U OEO. 3. c. S3-rROPERTY & CIVIL RIGHTS, ^fil

to His Majosty, and subjection to tlio CroAvn and Par-
liainont of Great Brifain; and that in all matters
of controversy relative to pro])orty and civil rights,^
resort shall be had to the laws of Canada as the rule
for the decision of the same : and all cause? Avhicli
slmll hereafter be instituted in any of the courts of
justice to he appointed Avithin and for the said pro-
vince hy His Majesty, bis heirs and successors, shall,
with respect to such property and rights, be deter-
mined agreeably to the said laws and customs of
GiiMilo, until they shall be varied or altered by any
ordinance that shall, from time to time, be passed in
tlie said province by the Governor, Lieutenant-Governor,
or Commander-in-Chief for the time being, by and with
the advice and consent of the Legislative^ Council
(tf the same, to l)e api)ointed in manner herein-after
montioned.-

' Hvcante,lA. N. A. Act, st'c. f)2, where nil the old French edits con-

^uli-<0('. l.'i. c'prning Cnnnda, nnd which were

• See Donegaui v. IJoiiegani, in published in Quebec in 1803, arc

I' ('. 2 Feb, 183.5, 3 Knapp 63, i-eferred to.

9. Provided ahvavs, That nothing in this Act con- Not to ixtwia

• ^ tolniulsgniiitcil

turned snail extend, or be; construed to extend, to any i.y His Miijoty
kinds which have been granted by His ^Majesty, or r.KMg''.' ' '
shall hereafter be granted by His Majesty, bis heirs
nil successors, to be holden in free and common

socage.

10. Provided also. That it shall and mav be lawful 'j^?^^,::',
to and for everv person that is owner of any lands, iiii'Matr tin;
;,'oo(ls ov credits, in the said province, and that has a \.v-if'xi-
light to alienate the said lands, goods or credits, in l,''tiln"inws'i!i'"
his or her lifetime, by deed of sale, gift, or otherwise, '■"""'"

to devise ov be(|iieath the same at his or her death,
hy liis or 1i(>r last will and testament ; any law, nsnge.
or custom heretofore or now pr(>vailing in the i)ro-
vince to the contrary hereof in anywis(> notwith-
standing; such will being executed either according to

S2340. \ X

' ^j

HI r

:il

5G2

It GEO. 3. c. 83 —CRIMINAL LAWS.

[1771.

the laws of Canada, or according to the forms pre.
scribed by the laws of England.

liir

ISsli

I ;

:ii)

' ' Ms

I:!

■J >\

i )

o/K,;;ill„dTo 11. '^^nd whereas the certainty and lenity of the
be contitnud in criminal law of England, and the benefits and advaii.
tages resulting from the use of it, have boon sensil)ly
felt by the inhabitants, from an experience of nioie
than nine years, during which it has been uniformly
administered ' ; be it therefore further enacted l)v tlip
authority aforesaid. That the same shall continue to
bo administered, and shall be observed as law in tlie
province of Quebec, as well in the descri[)tion and
quality of the offence as in the method of prosecution
and trial, and the punishments and forfeiture's tlioreljv
inflicted, to the exclusion of every other rule of criiuiiial
law, or mode of proceeding thereon, which did or
might prevail in the said province before the yoar of
our Lord 1764, anything in this Act to the coutrarv
thereof in any respect notwithstanding ; sul)joct uovor-
theless to such alterations and amendments as the
GoA'ornor, Lieutenant-Governor, or Commaudor-in-
Chief for the time being, by and with the advice and
consent of the Legislative Council of the said |)vovinc(',
hereafter to be appointed, shall, from tinio to [\m\
cause to bo made therein, in manner hoiriii-aftcr
directed.

His Majisty J2. * And wliorcas it mav be necessary to ordain

may iipiioint a _ • •

CouiKii for the niauy regulations for the future welfare and good
province, '' government of the province of Quebec, the occasions
of which cannot now be foreseen, nor, without mncli
delay and inconvenience, be provided fov, without in-
trusting that authority, for a certain time aud under
proper restrictions, to persons resident there ; And
Avhereas it is at present inexpedient to call an Assem-
bly ' ; be it therefore enacted by the authority aforesaid.
That it shall and may be lawful for His ]\[ajesty, !ii>'
heirs and successors, by warrant under his or their
signet or sign manual, and with the advice of the

1774] 14 GEO. 3. o. 8.'?.—" WELFARE & GOOD GOVT." 563

Piivy Council, to constitute and appoint a Council for
tho affairs of the province of Quebec, to consist of
sucli persons resident there, not exceeding twenty-three
nor less than seventeen, as His Majesty, his heirs and
successors, shall he pleased to appoint ; and upon the
(loath, removal, or ahsence of any of the memhers of ^■'"'''> Council

' .... . lUiiy make or-

tho said Council, m like manner to constitute and dinnmcs with

, , , , ,, onnsciit of the

appoint such and so many other person or persons as Governor,
shall 1)0 necessary to supply the vacancy or vacancies ;
which Council so appointed and nominated, or the
major part thereof, shall have power and authority to
make ordinances for the peace, welfare, and good
j^ovcrinnent ^ of the said province, with the consent of
His Majesty's Governor, or, in his ahsence, of the
Lieutenant-Governor or Commander-in-Chief, for the

S 1

I M 1

tune Ixnng.

Ill)

1 Sec B. iSr. A. Act, 1867, sec. 91, ante, p. 43.

13. Provided always, That nothing in this Act con- The Council
trtiued shall extend or authorize or empower the said powered to i^y
Legislative Council to lay any taxes or duties within r'Sor'imii.i-
the said province, such rates and taxes only excepted ^"^^ txcei>t.d.
as tlie inhahitants of any town or district within the
said province may he authorized hy the said Council
to assess, levy, and apply within the said town or
district, for the purpose of making roads, erecting and
ropaiiinflf puhlic huildings, or for any other purpose
respecting the local convenience and economy of such
town or district.

'(!

14. Provided also, and he it enacted hy the authority ordinani'.Mna.v
al'oresaid, That every ordinance so to he made, shall, His Maj.st.v
within six months, he transmitted by the Governor, or, JitiSir'^'^""
ill his ahsence, hy the Lieutenant-Governor or Com-
mander-in-Chief, for the time heing, and laid before
His Majesty for his royal approbation ; and if His
^lajesty shall think fit to disallow thereof, the same
shall cease and he void from the time that His

N N 2

56 1 n GEO. 3. 0. 83.— TN'STTTrTTOX OF rOURTS. [-1774

Majesty's Order in Council thereupon shall ho pro-
mulgated at Quebec.

ro-

Ordinances ^5^ Provided also, That no ordinance touclnnn-

touching rt'li- . ,3

gion sot to bo ligiou, or by which any punishment may he iiiflictod

ill foivo without j_ J.^ n 1 • • j. x- xi ,

His Majisty's greater than tine and imprisonment tor throe montli.s

approbation. g|jj^|i ^^^ ^^ .^^^ ^-^j.^g q^. pg-ggj.^ yj^^jj ^j^^ ^^^^^^ ^j^.^jj

have received His Majesty's approhation.

in^ority.

When ordin- \Q^ Provided also, That no ordinance shall ho Dassed

ances are to bo • n i m

passed by u at any meeting of the Council where less than a
majority of the whole Council is present, or at any
time except between the 1st day of January and
1st da\ .i*" ^'"ay, unless upon some urgent occasion,
in whicj .■ .. '"ry member thereof resident at Qiiehcc,
or withlit iiLi^' miles thereof, shall be personally sum-
moned b^'^ the Governor, or, in his absence, hy the
Lieiitenai't-G "ern ^r Commander-in-Chief, for the
time being, to attcid t]ie same.

Nothing to
liinder His
Majesty to con-
stitute courts
of criminal,
civil, and eccle-
siastical juris-
diction.

All Acts for-
merly made are
hereby enforced
within the
province.

17. And be it further enacted by the authority
aforesaid, That nothing herein contained shall extend.
or b(^ construed to extend, to prevent or hiiidov His
Majesty, his heirs and successors, by his or their lotlovs
patent under the great seal of Great Britain, from
erecting, constituting, and appointing such cmivts of
criminal, civil, and ecclesiastical jurisdiction within
and for the said province of Quebec, and appnintiiiir,
from time to time, the judges and officers thereof, as
His Majesty, his heirs ant' successors, shall think
necessary and proper for the circumstances of the
said province.

18. Provided ahvays, and it is hereby enacted, That
nothing in this Act contained shall extend, ov he con-
strued to extend, to repeal or make void, Avitliin tho
said province of Quebec, any Act or Acts of the
Parliament of Gi'eat Britain heretofore made, for
prohibiting, restraining, or regulating the trade ni'
commerce of His Majesty's colonies and plantations

1774.J

14 GEO. 3. e. 88.— PUBLIC-HOUSK XVT.

JO.)

in America : but that all and eveiy the said Acts, and
also all Acts of Parliament heretofore made concerning
01- respecting the said colonies and plantations, shall
Ije, and are hereby declared to be, in force within
the said province of Quebec and every part thereof.

14 GEO. 3. (1774) c. 88.

Of this Act the whole except sec. o was repealed
by S. L. 11. Act, 1872, 35 & 36 Vict. c. 63. ; and see
l'& 2 Will, k c. 23.

This was an Act to establish a fund towards further
defraying the charges of administration of justice and
support of the civil government within the province
of Quebec in America.

The preamble and section 1 are given anie, \). 220.
Sec. 2 enacted that the rates and duties charged by
the Act were declared to be sterling money of Great
Britain, and were to l)e paid to the amount of the
value such nominal sums bear in Great Britain^ and
that such moneys might be received according to the
proportion and value of 5s. Qd. the ounce in silver. The
section then dealt with how the duties are to be levied ;
to whom paid ; and how to be applied. Sec. 3 con-
tained regulations as to the route goods chargeable with
duty should be brought into the province. 8ec. 1
enacted that the penalties and forfeitures inflicted
might he sued for in any Court of Admiralty or Vice-
Admiralty having jurisdiction within the said province.

Sec. 5. " And be it further enacted by the authority Any pirson

e • mi 1 Pill keeijing ii house

atorosaul, That there shall from and after the 5th day of public enter-
of April 1775, be raised, levied, collected, and paid, £i"i™rfor°r^
unto His Majesty's Receiver-General of the said pro- ''^'^^"'"'•
vince, for the use of His Majesty, his heirs and suc-
cessors, a duty of one pound sixteen shillings, sterling
money of Great Britain, for every license that shall
Ix' gmnted by the Governor, Lieutenant-Governor, or
Coiuuuuider-in-Chief of the said province to any person
or persons for keeping a house or any other place of

566

31 GEO. 3. c. !!1.— CANADA'S CHARTEK.

[17fll.

"!i

Hi'

* ■'

I'reiiiiiblc.

UGio. 3.
rec'itud.

83.

])ul)lic ont(n'tainmcnt, or for the retailing wino, l)mn(lv
rum, or any other spirituous hquors, within the said
provhice ; and any person keeping any sueli liouse ov
phice of entertainment, or retailint^- any such hijuovs,
Avithout a license, shall forfeit and pay the sum of
£10 for every such offence, upon conviction thoreor;
one moiety to such person as shall inform or prosocute
for the same, and the other moiety shall he i)ai(l into
the hands of the lleceiver-General of the province lor
the use of His Majesty."

Sec. 6 enacted that nothing contained in tlio Act
A\as to make Aoid any part of the territorial or casual
revenues, iinco, rents, or profits reserved to the rrcncli
King and surrendered at the conquest to the King
of Great Britain.

Sec. 7 contained an indemnity against anything done
in pursuance of the Act.

31 GEO. 3. (1701) c. 31.

The Avhole Act Avas repealed except sees. 38, 30, 10,
43, 11, and 15, hy S. L. E. Act, 1872, 35 & 30 Vict,
c. 63. ; and see 3 & 4 Vict. c. 35. s. 2. By sec. 11 of 3 & 1
Vict. c. 78., so much of this Act as relates to any
reserA'ation of land hereafter to he made in Upper or
Lower Canada for the support and maintenance of a
Protestant clergy Avas repealed. This Act has Ijceu
called the Constitutional Charter of the Canadus. It
is giA'en in full : —

An A(!t to repeal certaia parts of an Act, passed
in the fourteenth year of His Majesty's reign,
intituled, " An Act for making more eftectual
provision for the Government of the Province of
Quebec in North America," and to make fur-
ther provision for the Government of the said
Province.

WHEllEAS an Act Avas passed in the fourteenth year
of the reign of His present Majesty, intituled, ".Vu
Act for making more effectual provision for the Goveiu-

1791.

:n GEO. 3. f. 31.— PEACE & GOOD GOV I'

567

nu'nt of the Province of Quebec in North America" ;
Aiid whereas the said ^Vct is in many resjiects inapplicable
to the present condition and circumstances of the said
province ; ^Vnd whereas it is expedient and necessary
that further provision should now be made for the
fjood government and prosperity thereof ' : May it there-
foie please Your most Excellent Majesty that it may
be enacted; and be it enacted by the King's most
Excellent Majesty, by and Avith the advice and consent
of tlie Lords Spiritual and Temporal, and Comnions, in
this present Parliament assembled, and by the authority
of tlie same, That so much of the said Act as in any -so much of re-

1 • 1 J I' /-I •^ p cited Act US

lUiinner relates to the ai)i)omtment oi a Council lor relates to the
the affairs of the said province of Quebec, or to the a^'cwdi'for"
power i!;iAen by the said Act to the said Council, or ^",^|'j.^' ^^1'"
to the major part of them, to make ordinances for pcaied.
the peace, A\elfare, and g'ood government of the said
province, with the consent of His Majesty's Governor,
Lieutenant-Governor, or Commander-in-Chief for the
time lieing', shall be, and the same is hereby repealed.

2. 'And Avhereas His Majesty has been pleased to
si2:mfy, l)y his message to both Houses of Parliament,
his royal intention to divide his province of Quebec
into hvo separate provinces, to be called The Province
i)f Upper Cakcida and The Province of Lower Canada^:
1)0 it enacted by the authority aforesaid, That there ^^■itllin each of

1111 •!• ii'i ' ^'^ • i'l ^'^^ intended

shall be withm each oi the said provinces respectively a provinces n
Legislative Council, and an Assembly, to be severally council imd As-
composed and constituted in the manner heremafter f.'™',''i[,,tcd,V
described ; and that in each of the said provinces re- Mhosi- advice

■*• His Majesty

spoctivoly His Majesty, his heirs or successors, shall may make laws
liave poA\er, during the continuance of this Act, by and ,n'ent ofTC"
with the advice and consent of the Legislative Council p''
iind Assembly of such provinces respectively, to make
laws for the peace, welfare, and good government
tlioi'eof, such laws not being repugnant to this Act;
aiul that all such laws, being passed by the Legislative
Council and Assembly of either of the said provinces

jvince.

! i

lili

;' 1

5G8

;ii (iKo. ;i.o.;n.— LK(JISLATIVK cou^'CIL.

[17!/1.

m '

vv»[)vct\yo\y , and assented to by llis Majesty, his lieiis
or successors, or assent (kI to in His Majesty's naiiio, by
such i)orson as His Majesty, liis lieirs or successors, shall
from time to time appoint to be the Governor, or
Lieutenant-Governor, of sucli province, or hy such
person as His Majesty, his heirs or successors, shall
tVom time to time appoint to administer the j^overnuioiit
■within tlie same, shall he, and the same are lierchv
de dared to he, hy virtue of and under the autlioritv ol
this Act, \ah"(l and hindinj;^ to all intents and purposes
whatever, Avithi)i the province in Avhich the same shall
haA'c heen so passed.

II HM!!^

ills Majf.st.y 3. And he it further enacted hv the antlioritv ai'oiv.

may authoiiit . pi » * . . '

the Governor, saul, Hiat Tov the purposc of constitutini^; such Li'i,qs-

or Lieutenant- , . ^^ .•■ ,. . -, . i c i.i ' • i

(Jovernor, of uitive Louncil as atorcsaid m each or the said provmcis
triummoir' i'''^'P<'f'tivoly. it shall and niay l)e laAvful for His Majesty,
members to tho Jij^ Jieirs or succcssors, hv an instrument under his or

Legislfttivc _ ^ ■ _

Council. their siy-n manual, to authorize and direct the Governor

or Lieutenant-Governoi", or person administerinn' the
govern m(Mit in each of the said ])rovinces respectively,
Avithin the time herein-after mentioned, in His Majesty's
name, and hv an instrument under the oreat seal of
such province^ to sinnmon to the said Legislative Coun-
cil, to 1)0 estahlished in each of the said pi'ovinccs lo-
spectively, a sufficient number of discreet and proper
persons, heing not fewtn* than seven to the Legislative
C-.iuncil for the province of Upper Canada, and not
f(Mver than fifteen to the LegislatiA'e Council for the
province of JjOirfr Canada ; and that it shall also j)e
lawful for His 3[ajesty, his heirs or successors from
time to time, hy an instrument under his or their si";!!
manual, to authorize and direct the Governor or Lieu-
tenant-Governor, or person administering tht; govern-
ment in each of the said provinces respectively, tu
summon to the Legislative Council of such province, in
like manner, such other person or j)ersons as His Ma-
jesty, his heirs or successors, shall think fit ; and that
every person who shall he so summoned to the Legis-

1791.]

M GKO. 3. c. ;jl.— JIKHKDirAia' SKATS,

569

liitivc Council of citlici' i)f the said provinces respectively,
shall tlun'cl)^ become a member of such Le<^'islative
Council to which he shall have l)eeii so j'vmmoiied.

4 Pi'()\ ided alwavs, and be it enacted by the authoritv >"" person

* 1 11 1 ' 1 I ■*! "nilui" 21 }-cnrs

afon'said, That no person shall l)0 snmmoned to the said otMgo, &o. to
Lo;?islative Council, m either ot tlie said provinces, who
shall not lie of the full age of twenty-one years, and a
iiatuml-born subject of ilis ^lajesty, or a subject of His
Majesty naturalized by Act of the BrUish Parliament,
or a subject of His Majesty, having become such by the
conquest and cession of the province of Canada.

5. And be it further enacted bv tlie author;; v afore- Memiitis to

'.'.,. hoi'l "itir scats

said, That e\ cry meml>er of each of the said Legislative for litv.
Councils shall hold his seat therein for the term of his
lii'c, hut subject nevertheless to the provisions herein-
at'tiT coutained for vacjitirig the same, in the cases
liereuia ftcr specitied .

6. And be it further enacted hy the authority afore- Hi^^-^I'l.ie!^t.v
said, That AvluMiever Hw Majesty, his heirs or successors, lanaituiytitks
sliall think proper to confer upon any subject of the right'of'bLin'g
Cvown of Gmtt livllaln, by letters patent under the tX'Lrgisi!.-"
1,'iTat seal of either of the said provinces, any hereditary tivc Council,
title of honour, rank, or dignity of such province, de-
scendible according to any course of descent limited in

such letters patent, it shall and may be lawful for His
Majesty, his heirs or successors, to annex thereto, hy
the said letters patent, if His Majesty, his heirs or suc-
c(^soi's, shall so think tit, an hereditary right of being
sninmoned to the Legislative Council of such province,
descendible according to the course of descent so limited
with respect to such title, rank, or dignity ; and that
every person on whom such right shall he so conferred,
or to whom such right sliall severally so descend, shall
thereupon be entitled to demand from the Governor,
Lieutenant-Governor, or person administering the go-
veniment of such province, his writ of summons to
such Legislative Council, at any time after he shall

iiiii''>r

' ', I

in 11^
1

r)7o

.{1 OEO. .S. I. ;n.— VACANCIKS IN COVNflL.

[1701.

■I". ■ ■

iji'i

Such (Ifsptiiil-
iblo right fur-
fi'itod, unci

seats in Coun-
cil vacated in
certain caBeti.

have attained tlic acje ol" tAvcnty-one years, siil)i(.(.t
nevertheless to the i)rovisioiis herein-after eontaiiicd.

7. Provided always, and he it further enaetcd hv the
authority aforesaid, That when and so often as any
person to whom such hereditary riylit shall have dc
scended shall, without the permission of His Alajcstv,
his heirs or successors, sii^nitied to the Legislative
Council of the 2)i*ovince hy the Governor, Lieutenant-
Governor, or person administering the government tiiere,
have heen ahsent from the said i)rovince for the space of
four years continually, at any time hetween the date (it
his succeeding to such right aiul the time of his apply,
ing foi such -writ of sunnnons, if he shall have hecn ol
the age of twenty-one years or upwards at the time ol
h s so succeeding, or at any time hetween the date of

attamnig

the said ay-e and the time of hh

s so

his

applying, if he shall not have heen of the said ai;v at
the time of liis so succeeding; and also when and so
often as any such person shall at any time, hei'oiv his
applying for such writ of summons, have taken any
oath of allegiance or ohedience to any foreign prince or
power, in every such case such person shall not hr
entitled to receive any writ of summons to the Logis-
iative Council hy virtue of such hereditary right, iniless
His Majesty, his heirs or successors, shall at any time
think fit, hy instrument under his or their sign manual,
to direct that such person shall he summoned to the
said Council; and the Governor, Lieutenant-Govcrnoi',
or person administering the government in the said
provinces respectively, is lierehy authorized and required,
previous to granting such Avrit of summons to any
person so applying for the same, to interrogate such
person upon oath touching the said several particulais,
before such Executive Council as shall have heen ap-
pointed by His Majesty, his heirs or successors, within
such province, for the affairs thereof.

8. Provided also, and be it further enacted hy the au-
thority aforesaid, That if any member of the Legislative

1701.

,11 GKO. .{. f. :U.— ALIEN LEOISLATOUS.

571

Councils of cltlu'i' of tlio siiid provinces respect ivel;' shall
Iciive sucii province, and shall resich; out of the same
for the space of four ,vears continually, without the
niM'iiiis'iion of His Majesty, his lieirs or successors, sig-
iiiticd to such liCgislative Council by tlie Governor or
LiiHiteimiit-Governor, or person adininisleriny His Ma-
jost ' '•'overnnient there, or for the space of two years
LDi 'ly» without the like permission, or the per-
mission of the Governor, Lieutenant-Governor, or person
adiuinistcrini'' the government of such province, signified
to Mich Legislntive Council in the manner afore»;i:'d;
111' if any such memher shall take any oath of aPeguu.ce
or obedience to any foreiy,'n prince or power; his scat iu
such Council shall ther(>by become vacant.

9. Provided also, and be it further enacted by the
imthority aforesaid, Thai in every case Avhere a Avrit of
summons to such Legislative Council shall have been
lawfully withheld from any person to whom such herc-
dita ight as aforesaid shall ha>'c descended, by reason
of hsence from the province as aforesaid, or of his
liavnii;; i.iken an oath of allegiance or obedience to any
toroiu:n prince or power, and also in every case Avhere
the scat in such Council of any member thereof, having
such hereditary right as aforesaid, shall have been
vacated l)y reason of any of the causes herein-before
spocitied, such hereditary right shall remain suspended
during the life of such person, unless His Majesty, his
iioii's or successors, shall afterwards think fit to direct
that ho be summoned to such Council ; but that on the
death of such person such right, subject to the provi-
sions herein contained, shall descend to the person who
shall next l)e entitled thereto, according to the course of
descent limited in the letters patent by which the same
shall have been originally conferred.

10. Provided also, and be it further enacted by the
luithority aforesaid. That if any member of either of the
said Legislative Councils shall be attainted for treason

lIii'Lilitiiry
riplit.s iuiJ H'iits
no foi'fiiti'd ui"
viii'iitid to ru-
iiiiiiii sti^i'iiuli'il
duriii;,' t! livi's
of tln' |iiii'ti('»,
but oil tlicir
deaths to go to
tlKqK'ivonsiioxt
iiititludtlicrt'to,

Seats in Coun-
cil forfeited,
and hereditary
rights extin-
guishnd for
tr^asou.

;!■ '!

. 1^

i i i i

ifilll'M

1 ■

572

31 GEO. 3. f. 31.— APPEAL TO ENG. PARL.

[1791.

Questions re-
specting the
right to bo
summoned to
Council, &e.
to be lU'ter-
niined as here-
in mentioned.

The Governor
of the province
inftj' appoint
find remove the
Speaker.

His Miijcsty
may authorize
the Governor to
call together
the Assembly,

in any conrt of law within any of His Majesty's domi-
nions, his seat in such Council shall therehy become
vacant, and any such horeditavy rii^lit as aforesaid then
vested in such person, or to he derived to any other
persons throuj^li him, shall he utterly forfeited and
extinguished.

11. Provided also, and he it further enacted hv the
authority aforesaid. That whenever any question shall
arise respecthig the right of any person to he summoned
to either of the said Legislative Councils respectiveh-, or
respecting the vacancy of the seat in such Legislative
Council of any person having heen siunmoned thereto,
every such question shall, hy the Governor or Lieu-
tenant-Governor of the province, or hy the ])ersoii ad-
ministering the government there, l)e referred to siieh
Legislative Council, to l)e hy the said Council heard and
determined ; and that it shall and may be lawful either
for the person desiring such writ of summons, or re-
specting whose seat such question shall have arisen, or
for His Majesty's Attorney-General of such province in
Uis Majesty's name, to appeal from the determinatiou
of the said Council, in such case, to Uis Majesty iu hb
Parliament of Great Britain; and that the judi,nueut
thereon of His Majesty in his said Parliament shall be
final and conclusive to all intents and purposes what-
ever.

12. xind he it further enacted hy the authority al'oie-
said, That the Governor or Lieutenant-Governoi' of tlie
said provinces respectively, or the person administering
His Majesty's government therein respectively, shall
have power and authority from time to time, l)y an
instrument under the great seal of such province, tn
constitute, appoint, and remove the Speakers of tlie
Legislative Councils of such provinces respectively.

13. And be it further enacted by the authority afore-
said, That, for the purpose of constituting such Assem-
bly as aforesaid, in each of the said provinces rospec-

ill ii

1-01] 31 GEO. 3. c. 31.— SUMMONING .\SSEMBLY. ')1^

tivolv, it shall and may ho lawful for His Majesty, his
heirs or successors, by an instrument under his or their
sio^n manual, to authorize and direct the Governor or
Lieutenant-Governor, or person administering the go-
vernment in each of tin; said provinces respectively,
vitliin the time herein-after mentioned, and thereafter
from time to time, as occasion shall require, in His
Majesty's name, and hy an instrumcmt nnder the great
seal of such province, to summon and call together an
Ars(Mul)ly in and for such province.

14. And he it further enacted hv the authoritv afore- nnd, forthe
said, Tliat, for the purpose ot electing the memhers of Hectinp the
sucli Assemhlies res])ectively, it shall and may he lawful "mu' a 'imMhi-
for His :N[ajesty, his heirs or successors, hy an instru- [^f j'-'o'IS"^
ment under his or their si<;'n manual, to authorize the '"''^ '''^t'''"'*>

^ tec.

Governor or Lieutei.aut-Governor of each of the said
jii'ovinces respectively, or the person administei'ing the
i;overnment thereiu, Avithin the time herein -after men-
tioned, to issue a proclauiation dividing such province
into districts, or counties, ov circles, and towns ov
to\vnshii)s, and ai)i)ointiug the limits thereof, and de-
claruiiif and appointing the numher of representatives to
l)e chosen hy each of such districts, or counties, or
circles, and towns or townships resj)ectively ; and that
it shall also he lawful for His ^lajesty, his heirs or
successors, to authorize such Governor or Lieutenant-
Governor, or person administering the government,
from time to tiiue to nominate and api)oiiit p^-oper
persons to execute the office of returuing officer iu each
of the said districts, or counties, or circles, and towns or
townships respectively ; and that such division of the
said ])rovinces into districts, or countii's, or circles, and
towns or townships, and such (h'daration aud ai)])oint-
ment of the numher of repres(Mitatives to he chosen hy
each of the said districts, or counties, or cireh^s, and
toMus or townships respectively, aud also such nomi-
nation aud appointment of rc^turning officers in the .
same, shall he valid and effectual to all the purposes

■

■1^ P """

aMBWi ' ' ^ ^ ^y f: ' 1- '

[IH

: li ' 1

' i ' B ! 1 1

I'lwl^l

H ' ' ' i n ' i; f

|;M 1:; : r

1 ^

W ' ! i 1 ,' : ; '

P M ' ' ' ■ : >

1 1 : Power of the

1 ; : i Goveriiur to

{ f ( : 1 i ;! \ ajuioiiit retiiru-
1 j iiif? offieei'9, to

f ! i ; , j eoiitinue two

1 ;

i; ; i ' i 1 years from the

commeneemcnt

1 f

i : M j of this Aet.

1 ;

■ ! : " . * ;

!<^ " T i

•: : "- ■

' '■■ : . \ . ■ ■ •! ;

■ \ ■ : : 1 ■ >■
■ ■ ■ .}

i\i\ :

. r 1 i • ■ i i

|I 1

;■ : ' ':■ . 1

II ''

■ >.• ; ! :

:\J k ^ ' :

^ 1 ' ■ ■ ■ ■ 1

^n^

, 1

IH'

;■;;",: J i

^jijH! ^ ^

., 1 1 ; ' (i j No person ob-

1, i i , ' ! H 1 liged to serve

' j : i 1 ■ '"' '■^'*"*'""'P

j H ' H officer mure

li'

1 Hj 1' less otherwix'

1 ; ' : 1 B provided liy iin

: : ! : j i ' ' 1 1 Act of the '
!ij; . 1 '\ 1 3 : 1 ; province.

i A

i ■ '

J i| )

: 1 r

[1;

, ' 1 Number oi

rill meral)ers in

; , |l| j ! ' each province.

■ ! ii a-

i|i

1 1 > I !

nli

Jt In i\:

1 Bfcif ' Rc;^hitions for

Wat

' ^El i ' is.' uing writ8

■ , \, ^^■1 i i 1 ^ ^'^ *'^" election
;: I^H 1 ' U 1 ' of mcmhcrs to
i nP* ' r 1 : i^etvo in the

wM.

Bnl

j^ ■ ! K Assemblies.

i i auU i "^

■H

IJIhbij ' ^ 1 '

^bH i '

BI^PBBff

IWi

571 31 GEO. 3. o. 31.— RETURNING OFFICERS.

[1791.

of tliis Act, unless it shall at any time be otherwise
provided hy any Act of the Legislative Council and
Assembly of the province, assented to by Ilis Majesty
his heirs or successors.

15. Provided nevertheless, and be it further enacted
by the authority aforesaid. That the provision horoiii.
before contained, for empowering the Governor, Lieu.
tenant-Governor, or person administering the cjovorn.
ment of the said provinces respectively, under sp.cii
authority as aforesaid from His Majesty, his li(>irs or
successors, from time to time, to nominate and appoint
proper persons to execute the office of returning officev
in the said districts, counties, circles, and toAvns ov
town.shijis, shall remain and continue in force in each
of the said provinces respectively, for the term of two
years, from and after the commencem ^t of thi.s Aet,
Avithin such province, and no longer ; but sul)ject,
nevertheless, to be sooner repealed or varied In any
Act of the Legislative Council and Asseml)ly ol' tlio
province, as.sented to by His Majesty, his jieiis or
succe.ssors.

16. Providcnl always, and be it further enacted In
the authority afor(^sai(l. That no jjerson shall be ol)li!.'o(l
to execute the said office of returning offiC(n' lor any
longer time than one year, or oftencr than once, unless it
.shall at any time be otherwise provided by any Act nt
the Legislative Council and .Vssembly of the province,
assented to by His ]\rajesty, liis heirs or .successors.

17. Provided also, and l>e it enacted by the autliority
aforesaid, That the whole number of members to lie
chosen in the province of V^ppop Conada shall not Iw
less than sixteen, and that the Avliole number of mem-
bers to 1)(> chosen in th(» province of Loit't'r C'diKKln
shall not be less than fifty.

18. And be it further enacted by the authority afon-
said, That writs for the election of members to serve in
the said Assemblies respectively shall be issued by tlic

r^Wl

1791.]

31 GEO. 3. c. 31.— WRITS.

575

Govovnor, Lioutcnant-Govcrnor, or poivson administering
His !>[aj('stj''s government within the said provinces
respectively, within fourteen days after the scaling of
such instrument as aforesaid for summoning and call-
in" toi^ethcr snch Assemhly, and that such writs shall
be directed to tlu^ respective retimiing officers of the
said districts, or counties, or circles, and towns or town-
cjiips, and that such writs shall he made returnahle
within fifty days at farthest from the day on Avliich they
sliall hear date, unless it .shall at any time he otherwise
provided hy any Act of the Legislative Council and
Assomhl;. of the province, assented to hy llis Majesty,
his heirs or successors ; and that writs sliall in like
manner and form he issued for the election of memhei's
in the case of any vacancy which shall happen hy the
death of the person chosen, or liy his heing summoned
to the Legislative Council of either province, and that
such Avrits shall he made* returnahle within fifty days at
tartliest from th<^ day on ^^■hich they shall hear date,
unless it shall at any time he otherAvise provided hy any
Act of the Legislative Council .and Assemhly of the pro-
vinco, assented to hy llis Majesty, his heirs or suc-
cessors; and that in tiie case of any such vacancy Avhich
shall happen hy the death of the person chosen, or by
reason of his heing so summoned as aforesaid, the writ
for the election of a new member shall be issued within
six davs after the same shall be made known to the
proper office for issuing such writs of election.

19. And be it further enacted bv the authoritv R;,t"»i'i"g

, * , ' omcers tf>

aforesaid, That all and every the returning oflBcers so .xociitu Mrfts.
iippointod as aforesaid, to Avhom any such writs as
aforesaid shall be directed, shall, and they arc hereby
authorizcMl and required duly to execute such writs.

20. And be it further enacted by the authority afore- I'y ^iiom the

■ 1 mi 1 o 1 1 T i • J members are to

^m, lliat the members for the several districts, or be chosen,
counties, or circles of the said provinces respectively,
shall be chosen by the majority of votes of such persons

I 1

liiii

iii|

57n ni OEO 3. 0. 31— XOX-ELIGTBLE PETISON'S.

'1791.

as shall soverally ho. possossod, foi* tlioir own nso and
benefit, of hands or tcnomonts witliin snch district, or
county, or circle, as the cas(^ shall l)e, such lands
heiuiif hy them held in freehold, or in fief, or in roturo
or hy certificate derived luider the authority ol' the (Jo-
vernor and Council of the province of Quebec, and
beinf? of the yearly Aaluc of forty shilliniifs stcrliii;^, ov
upwards, over and ahove all rents and chai'i;(>s i)aval)lo
out of or in respect of the same ; and that tlu; ineni.
bers for the several towns or townships within the sjiid
provinces respectively shall he chosen hy the inajoritv
of votes of such ])ers()ns as either shall severally lie
]wss(^ssed, for their own us(; and benefit, of a (Iwcllin;;
house and lot of i;Tound in such town or towuslii)),
such (hvelliuii' house and lot of ii;r(mnd heini;- hy tiicni
held in like manner as afon'said, and beini*- of the yoailv
value of fiA'e pounds sterliui;-, or upAvards, or, as liaviiii,'
been resident Avithin the said town or townshi]) lor the
s])ace of tweh'e calen(hir months next before tli(> date
of the AVi-it of summons for the election, shall Imm
JUIc I'.ciA^e paid one year's rent for the dAvellini;' lioiisi'
in ',»liich they shall have so resided, at the rate of teu
pounds sterlini^ pen' annum, or upAvards.

Certiiin iipisoMs 21. I'rovided alwavs, and he it further enactod liv

not eligible to ' '

the Assciiiiiiic^. the authority aforesaid, That no person shall he ('apal)l('
of bein£? elected a memlxM" to serA'e in eitlier oF tlu'
said Assemblies, or of sittina^ or voting therein, avIio
shall be a member of either of the said L(>Lcislativo
Coimcils to he established as aforesaid in the said two
]m)vinces, or Avho shall be a minister of the ("liiiiclint'
Englatnl, or a minister, priest, ecclesiastic, or toaelici',
either according- to the rites of the Church of Rome, or
under any other form or profession of religious faith or
Avorship.

22. Provided also, and be it further enacted by the
authority aforesaid. That no person shall be capable ol

capable of ," t ,• n ii •!

Toting or being votiug at any election ot a member to serAe in sucii
^^^ ' Assembly, in either of the said provinct^s, or of beniir

No person
under 2 1 year<
of age, &c.

^i ■

" V"" jr

1791.]

31 GEO. 3. c. 31— AGE OF VOTER.

)77

elected at any such election, Avho shall not he of the full
ii<'c of twenty-one years, and a natural-horn suhject
of His Majesty, or a suhject of Ilis Majesty naturalized
1)V Act of the British Parliament, or a suhject of His
Majesty, having heconie such hy the conquest and ces-
sion of the province of Canada.

23 And he it also enacted hy the authority afore- ""•■ »"y ri-'s^n
said, Tliat no person shall he capahle of voting at any treason or
election of a mcmher to serve in such Asscnihly, in ''""^'
either of the said provinces, or of hcing elected at any
such election, who shall have heen attainted for treason
or felony in any court of law within any of His
Majesty's dominions, or wdio shall he wdthin any de-
scription of persons disqualified hy any Act of the Legis-
lative Council and Assemhly of the province, assented
to hy His Majesty, his heirs or successors.

24. Provided also, and he it further enacted hv the Voters, if rc-

*' quirpd, to tHKO

authority aforesaid. That every voter, hefore he is ad- tho foUowing
mitted to give his vote at any such election, shall, if
required by any of the candidates, or hy the returning
oillcer, take the following oath, which shall he admin-
istered in the English or French language, as the case
may require :

"lA.B. do declare and testify, in the presence of ^"'^''•
Ahnii^hty God, that I am, to tho best of my knowledge
and Ijoliel', of the full age of twenty-one years, and that
I liave not voted hefore at this election."

And that every such person shall also, if so required ""{Vtoth(^''>!ir-
as aforesaid, make oath, previous to his hcing admitted tiiuiars htivin

siii'cilicd.

to vote, that he is, to the host of his knowledge and
belief, duly possessed of such lands and tenements, or
of such a dwelling house and lot of ground, or that he
\m bona fide heen so resident, and paid such rent for
his dwelling house, as entitles him, according to the
provisions of this Act, to give his vote at such election
for the county, or district, or circle, or for the town or
townsJiip for which he shall offer the same.

S'jiuo, 0 0

Ir' I

578

31 GEO. 3. c. 31.— ELECTIONS.

[1701.

Si it

n!.;

lii

f i

His Miij<>sty
may iiuthorizo
tlu! (jDVcnior
to fix tlu^ time
mill iiliice of
lioliliiig I'lic-
tiuiis,

niul of holding
the sessions of
the Council
anil Assembly,
&e.

Council and
Assembly to bo
called togethiT
once in I'i
montlhs, &c.,

and all ques-
tions therein to
be decided by
the majority of
rotes.

25. And 1)0 it further enacted by the authorily nfoiv-
said, That it sliall and may be lawful Tor llis ^Majesty
his heirs or successors, to authorize the (Joveviior or
Lieutenant-Governor, or person administeriui? the 50.
vernment ■within each oF the said provinces respect ivdv
to fix the time and place of holding such elections,
g-iving not less than eight days' notice of such tiiiio,
sul.j(^ct nevertheless to such provisions as may hereafter
be made in these respects by any Act of the Lc^^islativo
Council and Assembly of the province, assented to bv
His Majesty, his heirs or successors.

26. And be it further enacted by the autlioijty
aforesaid, That it shall and may be laAvful for His ^la-
jesty, his heirs or successors, to authorize llu^ (Joveriioi'
or Lieutenant-Governor of each of the said proN iiices ro.
spectively, or the person administering the govevinnent
therein, to fix the places and times of holding the ih'st
and every other session of the Legislative Council and
Assembly of such province, giving due and sufliciont
notice thereof, and to prorogue the same from time to
time, and to dissolve the same, by proclamation or
otherwise, Avhcucver he shall judge it necessary or
expedient.

27. Provided always, and be it enacted l)y tlic
authority aforesaid, That the said Legislative Council
and Asstnnbly, in each of the said provinces, shall bo
called together once at the least in every tMolvc cal-
endar months, and that ev(U'y Assembly shall coiitiidio
for four vears from the dav of the return of the writs
for choosing the same, and no longer, subject iievortlii'-
less to be sooner prorogued or dissolved by the Covcrnur
or Lieutenant-Governor of the province, or person ad-
ministering lEis ^Majesty's government therein.

28. And be it further enacted bv the authoi',tv afore-
said. That all questions which shall aris(^ in tlio said
Legislative Councils or Assemblies respectively shall ho
decided by the majority of voices of such menihois as

! ii'

1791.]

31 GEO. 3. c. 31.— CONSENT TO BILLS.

579

slmll be present ; and that in all cases Avlierc tlic voices
slialilx' ecpial, tlie Speaktu* of sucli Council or Assembly,
iis the case sball be, shall have a casting voice.

29. Provided always, and be it enacted by the ^° member to
authority aforesaid. That no member, cither of the iie has taken
Loi^islative Council or Assembly, in either of the said*''' " """"^
iivovinces, shall be- permitted to sit or to vote therein
until he .shall have taken and subscribed the following
oath, either before the Governor or Lieutenant-Governor
of such province, or person administering the govern-
mont therein, or before some person or persons autho-
rized by the said Governor or Lieutenant-Governor, or
other person as aforesaid, to administer such oath, and
that the same shall be administered in the Eiiyrmh or
Tfoncli language, as the case shall require.

[Then follows the same oath as contained in 11 Geo. 3. f^'i'h.
c. 8:?., ante p. 500, exee])t that there was added after the
Avords "King George" thcAVords "as lawful soverei<?n of

I'd ~

Iho kingdom of (J real Britain, and of these provinces
dopondtMit on and belonging to the said kingdom."]

30. And be it further enacted by the authority o.ovomor may
aforosaid, That whenever any Bill which has been houi His Ma-
passod by the Legislative Council, and by the House of ]™il, passed by
Assoiiibly, in either of the said provinces respectively, coun^-i'fna^^
sliall be presented, for Ilis Maiesty's assent, to the A.'^sembiy, or

^ ^ ' J .' ' ^ reserve them

Governor or Lieutenant-Governor of such province, or for nis
to the person administering His Majesty's government sure!'' ^ '' ^
therein, such Governor or Lieutenant-Governor, or
person administering the government, shall, and he is
lierehy authorized and required to declare, according to
his discretion, but subject nevertheless to the provisions
contained in this Act, and to such instructions as may
A'om time to time be given in that behalf by His
^iajesty, his heirs or successors, that he assents to such
hill in His Majesty's name, or that he withholds His
Majesty's assent from such Bill, or that he reserves
sucli Bill for the signification of His Majesty's pleasure
thereon.

00 2

i i

' i

f !

\ )

580

31 GEO. 3. c. 31.— KESEllVEl) IILLLS.

[ITiil.

Onvcnior to
traiiHinit to the
Socrutury of
Statu copies of
Kiich liills as
liiivc Ix'eii as-
sciitc'ilto.wliioh
His Majesty in
Council may
declare his dis-
allowance of
M'ithiii two
years from tho
receipt.

31. Providocl always, and bo It fiivtlun' enatitcil hv
the autliority aforesaid, That uhenovor any Bill, which
shall have hoeii so presented for ilis ^Majesty's assent to
such Governor, Lieutenant-Governor, or person ad-
ministering the government, shall, hy such Governor
Lieutenant-Governor, or person administering tho "o-
vernment, Iuia'c hecn assented to in Uis Majt!stv's
name, such Governor, Lieutenant-Governor, or person
as aforesaid, shall, and he is herehy required, hy the
first convenient opportunity, to transmit to one of His
Majesty's principal Secretaries of State an authentlL'
copy of such Bill so assented to ; and that it shall and
may be lawful, at any time Avithin two years after snch
Bill shall have been so received by such Secretary of
State, for Ilis Majesty, his heirs or successors, by liis or
their Order in Council, to declare his or their disallow-
ance of such Bill, and that such disallowance, to;;etlior
■with a certificate, under the hand and seal of siicli
Secretary of State, testifying the day on Avhich suchlMll
was received as aforesaid, being signified by such Go-
vernor, Lieutenant-Governor, or person adininisteriii!,'
the government, to the Legislative Council and As-
sembly of such province, or by proclamation, shall
make void and annul the same, from and after the date
of such signification.

Biiisrcscrved 32. And bc it furtlicr enacted by the authoritv

for Ills Ma- p . 1 . '

justy's pieasui-o aforcsaid, That no such Bill, Avhich shall be so reserved
forco"tiiiTis""^ for tho signification of His IMajesty's pleasure tlicrooii,
SIr^;'.mmmr"' sluill luivc any force or authoiity within either of the
cutc.i to the gr^j(| provinces rcspoctivelv, until tho Governor or Licii-

('ouiicil and ^ x t '

Assembly, &c. tcnaiit-Govornor, or person administering the ijovcni-
ment, shall signify, either by speech or messag(\ to tho
Legislative Council and Assembly of such province, or
by proclamation, that such Bill has been laid hofoiv
His Majesty in Council, and that Uis Majesty lias hecn
pleased to assent to the same ; and that an entry shall
be made, in the journals of the said Legislative Coancil,
of every such speech, message, or proclamation ; and a

1791]

31 GEO. 3. c. 31.- OLD LAWS.

581

(liil)Iicat(! thcroof, duly attested, shall l)o delivered to
the proper officer, to l)o kept amont^st the ])uhlic
records of the province : Ami that no such IJill, Avhicli
shall 1)0 so reserved as aforesaid, shall have any force or
authority within either of the said provinces respec-
tively, unless His Majesty's assent thereto shall have
been so signified as aforesaid, within the space of tAVO
vciir.s t'roni the day on Avhich such Bill shall have been
presented for Ilis Majesty's assent to the Governor,
Lieutenant-Governor, or person administermg the go-
vernment of such province.

33. And 1)0 it further enacted l)y the authority i-iv^s in forco
aforesaid, That all laws, statutes, and ordinances, Avhicli nuiuinK ut of
shall be in force on the day to he lixed in the manner ti',Hio so, 'i'x,'!"'t
herein-after directed for the commencement of this Act, ■''PV"'^''' '!''
within the said provinces, or either of them, or in any
part thereof respectively, shall remain and continue to
he of the same force, authority, and effect, in each of
tlie .said provinces respectively, as if this Act had not
been made, and as if the said province of Qnehec had
not been divided ; except in so far as the same aro
expressly repealed or varied hy this ^Vct, or in so far as
the same shall or may hereafter, hy virtue of and
inider tlio authority of this Act, he repealed or varied
hy His ^lajosty, his heirs or successors, hy and with the
advice and consent of the Legislative Coinicils and
Assemblies of the said provinces respectively, or in so
far as the same may ho repealed or varied by such
temporary laws or ordinances as may bo made in the
manner hereinafter specified. ■

34 And whereas bv <in ordinance passed in the Kst'ii'i'^i'""'"*

i, ., „ , of a court ot

province of Qnehec, i\\G Governor and Council of the .•ivil,jlu■is(lio-
^.,;l • I'i 1 1 i p • •! • • tioti in each

said province Avere constituted a court of civil juris- proviuce.
•liction, for hearing and determining appeals in certain
cases therein specified, be it further enacted by the
authority aforesaid. That the Governor, or Lieutenant-
(fovernor, or person administering the government of
I'ach of the said provinces respectively, together Avith

ill- '

: :|i

.11

IfJ

a ■

14 Oro. 3.
c. S3., aiul

582

31 QEO. 3. c. 31. -CIVIL COURTS.

[1791,

such Exi^ciitivo Coiuicil as sliall bo appointiMl by Uis
Majesty Tor tlu; alVairs of such proviucc, slmll he u
court of civMl jui'i.sdictioii wltliiii each of the said mu
vinccs respectively, for lieariiii^ aiul det(MMniuiiiij,' appeals
within the same, in the like cases, and in tlu; like
manner and form, and suhject to such appeal Ihcro-
from, as such appeals mig-ht heforc the passiiit-' of this
Act have heen heard and determined hy the CJov(>ni()i'
and Council of the province of Quebec; hut suhject,
nevertheless, to such furtlun* or other provisions as mav
he made in this behalf, by any Act of the Lef,nslative
Council and Assembly of either of the said provinces
respectively, assented to by Uis Majesty, his heirs or
successors.

35. And AvluM'eas, by the above-mentioned Act,
passed in the fourt(!onth year of tlu^ reii^n of His
present ^Fajesty, it was declared. That the clerij:y of
th(; Chureh of lioiiie, in the provinces of Quebec, mi^lit
hold, receive, and enjoy their accustomed dues and
rii^'lits, with respect to such persons only as slioiilil
profess the said relii^'iim ; provided, nevertheless, tliat
it should be lawful for His Majesty, his heirs or suc-
cessors, to make such provision out of the rest of the
said accustomed dues and rij^'hts for the eiicourai,'eiii('iit
of the Protestant relisj^icm, and f(n' tin; maintenanc(' ami
support of a Protestant clergy^ withhi the said province,
as he or they should from time to time think neccssaiT
and expedient : And whereas by His Majesty's roval
instruotionsof instructious, i^iveu imder Ills Majesty's roval si!,'ii

.Jan. 3, 1775,10 /i ^i • i i p t • /l ' C

Sir Guy Carle- manual ou tlic tliu'd day oi January, in the year ol our
on, c, an j^^^y,([ q,^q tliousand scvou liundrcd and seventy-five, to
Guy Carleton, Esquire, noAV Lord Dorchester, at Hint
time His Majesty's Captain-General and Govenior-in-
Chief in and over His ]\[ajesty's province of Quebec, His
Majesty was pleased, amongst other things, to direct
*' That no incumbent professing the religion of the

' See Lord Mansticld on tliis section, &.v. r)3, Hnnsard (.'J »-m>\
1 April and 1 May 1810; 72 Lords' Journals, 221, 251.

1791.] .il (iEO. 3. 0. 31.— GOVEUNOU'S IXSTllUCTIOXS. 583

Cliui'cli ol' Homo, apijointed to any parish in tlio said
iiioviiicc, sliould 1)0 entitled to receive any tithes for
l;iu(ls or possessions occujjied l)y a Protestant, but that
such tithes shouhl ho received l)y such j)ers()ns as tho
siiid (iiiy Carleton, Esc^uiro, His Majesty's Captain-
GciK'i'al iind CJovernor-in-Chief in and over His ^Majesty's
siiid province oT Qia'hcc, shouhl appoint, and shouhl ho
reserved in the hands of His ]\[ajesty's lleceiver-General
of the said province, for the support of a Protestant
clorary in His Majesty's said province, to ho actually
ivsidoiit Avithin tho same, and not otlierwiso, accordin;^
to such directions as tho said Guy Caideton, Esquire,
His ]\Iajesty's Captain-General and Governor-in-Chiel' in
iiiul over His Majesty's said province, should receive
I'lom His Majesty in that behalf ; and that in like
manner all f^rowinjjf rents and profits of a vacant benefice
should, (luring such vacancy, bo reserved for and api)li(Hl
to the like uses " : And whereas His ;>rajesty's pleasure
lias likewise been signifunl to the same elVect in His
Maiestv's roval instructions, I'iven in like manner to inMiiutions to
8iv Frederick llaldimand, kni!i;ht of the most honourable Uauiiman,! mui
Oi'dei'of the Bath, lato His Majesty's Captain-General ,.'h,.sh!r, re- '^'
and Governor-in-Chief in and over His Majesty's said '^"^''^'
province of Quebec ; and also in His Majesty's royal in-
structions, given in like manner to the said llight
Honourable Guy Lord Dorchester, now His Majesty's
Captain-General and GoA-ernor-in-Chief in and over His
Mni(>stv's said nrovinco of Quebec ; bo it enacted by the and the deda-

' * *■ . , . ration nml ju'o-

authority aforesaid, That the said declaration and provi- visions iiunin
s^ion contained in tho said above-mentioned Act, and ^'of^y I.^iJ''
also the said provision so made by His iSIajesty in con- j{',l"i^'''t',"',jn.
sequence thereof, by his instructions above recited, shall »'»"^ •" '"'•^'•^•
I'ouain and continue to bo of full force and effect in each
"I the said two provinces of Upper Cdiuufa and Lower
C'diKiild i'(>spectively, except in st) far as tho said declara-
tion and [)i'ovisions respectively, or any jiart thereof, shall
he expressly varied or repealed by any Act or Acts which
may he passed by the Legislative Council and Assembly
f^t the said provinces respectively, and assented to by His

681

.31 GKO. ;{. c. .-{l.— PROTESTANT CLKllOY.

17!)1

1 ■ Mr

4 i >

His Miiji'sty'i
mi'SHiigc til
I'ai'liiiiiK'iit
rui'itrd,

His Mnjesty
m.iy auiliDrize
tho Oovcrnor to
miiko allot-
ments of lands
for the support
of a Protestant
clergy in each
province ;

Miijosty, liis heirs or siiccrssovs, ini(l<>r ihv restriction
licrciii-at'tcr provided.

36. And wlujreas His !^^Jlj('sty lias hecu ^nicioiislv
pleased, l)y message to both I louses of Parliament, to
express his royal desire to ho enahled to make a per-
manent appropriation of lands in tho said provinces, I'oi'
tho snpport and maintenance of a Protestant cl('ri;v
■within tho same, in proportion to such lands as Imve
hoen already granted withhi tho same hy His Majesty:
And whereas llis ^^faji'sty lias heon f^raeiousjy ])l(>asi'(l,
hy his said messajj^e, further to signify his royal desiiv
that such provision may he made, with respect to ail
future grants of land within tln^ said proxinces respcc-
tively, as may hest conduce to the du(^ and siillicitMit
support and maintenance of a Protestant clergy witliiii
the said provinces, in proportion to such increasi^ as may
happen in the population and cultivation thereof : Thoiv-
fore, for the purpose of more elfectually fuUilliiig His
Majesty's gracious intentions as aforesaid, and of pro-
viding for tho duo execution of the same in all time to
come, he it enacted hy the authority aforesaid, Tliat it
sliall and may he Liwful for His Majesty, his heirs w
successors, to authorize the Governor or Lieitteiiaiit-
Governor of each of the said provinces respectively, or
the person administ(M'ing tho government therein, to
make, from and out of the Lmds of the Crown Avitliiii
such provinces, such allotment and appropriation (if
lands, for the support and maintenance of a I'rotestitnt
clergy "within tho same, as may l)oar a due proportion to
the amount of such lands within the same as have at any
time hoen granted hy or under tlie authority of His
]\rajesty^: And that whenever any grant of lands witliiii
either of tho said provinces shall hereafter he made, by oi
imder the authority of His Majesty, liis heirs or suco
sors, there shall at the same time he made, in respect <
the same, a proportionable allotment and appropriation ol
lands for the above-mentioned purpose, within the to«ii-

' Bepealcd by sec. 11, 3 & 1 Vict. e. 78. See 16 & 17 Yid. c. L'l.

l"!ll.]

nl GEO. 3. c. 31.— CLEROY LANDS.

585

ship or |)!Vi'isli to Avhich such lands so to bo granted shall
aiipcrtaiii or he aniicxod, or as nearly adjacent thereto
as c'irc'imistances will admit; and that no such i?rant
sliiiil l)e valid or ctrectual unh;ss the sanu; shall contain a
s|i('cilicatioii of the lands so allotted and appropriated, in
ivspoct of the lands to he therehy j^rantcnl; and that such
laiulH, so allotted and approi)riate(l, shall he, as nearly as
the circunisranccs and nature of the case Avill admit, of
tlio like (juality as the lands in respect of which the sjinio
arc so allotted and appi'opriatcd, and shall he, as nearly
as tlio same can he estimated at the time of making* such
iiniiit, (M[ual in value to the seventh part of the lauds so
!,'niiitt'(l.

37. And 1)(! it furtlun- enacted hy the authority afore- 'i''.'i.«''o !<'nt^
said, That all and every the rents, profits or emoluments, "uh iiiii.iimtits
which may at any time arise from such lands so allotted to thn7|ni'i|lose
niul appropriatcul as aforesaid, shall he appliciiblo solely *" "^'^^
to the maintenance and support of a Protestant clergy
within the province in Avhicli the same shall he situated,
and to 110 other use or purpose Avhatever.

38/ And he it further enacted hy the authority afore- "'« ^f"J>'.Y

•' •' ^ may milhonzo

said, That it shall and may l)e lawful for His Majesty, tho Goverm.i;,

,, , . . ii • 11 /-I with tho mlvico

Ins heirs or successors, to authorize the Ciovcrnor or of tho Execu-
Lioutenant-( Jovernor of each of the said provinces respcc- InrecTparwm-
tivelv, or the person administering the government "p^ "^"'^ ""''"^

'_ 1 . P tnem J

tliorcin, from time to time, with the advice of such
Executive Council as shall have been appointed by His
Majesty, his heirs or successors, within such province,
for the affairs thereof, to constitute and erect, within
every township or parish which now is or hereafter may
'" lu '. constituted, or erected within such province,
one or more parsonage or rectory, or parsonages or rec-
tories, nc iding to the establishment of the Church of
J^iighanl ; and from time to time, by an instrument
iiuler the great seal of such province, to endow every
ueh parsonage or rectory with so much or such part of

' See 3 & 1 \ ict. c. 78. and IG & 17 Vict. c. 21.

Ih I

'! ; I

. ,

■ ■

' /

1 1

1 ' '■ \:

■ i

i ■' 1

^;l '' i

586

and tiio Oovor-
iior ti) j)r(ni'iit
ini'iiiiiU'iiUs to
tlioni, wlio are
to enjoy tlio
tiiuiic, as iiu'iim-
bunts ill Ihig-
luiid.

31 GEO. c. 31.— ENG. & CAN. CLEIJGY.

[1791.

rrf-s('iitatii)iis
to pirsoiinms,
and tlio t'lijoy-
incnt of tlitiii,
to Ik' snliji'ct to
tlio jni'iMlii'lioii
Uraiiliil to till'
llisliii|i of Nova
iScolia, iSci.'.

the lands so allotted and appropriated as afofosaid, in
respect of any lands M'itliin such t()Avnshi[) or parisli
which shall have been granted suhseqiioiit to the com-
mencement of this Act, or of such lands as may have
heen allotted and appropriated for the same purpose, liy
or in virtue of any instruction which may h(> i;iv( p. 1)\
His Majesty, in respect of any lands i^rantod hv J I is
Majesty before the commencement of this Act, as such
Governor, Lieutenant-Governor, or person a(hiiinis((>nii;'
the s^overnment, sliall, witli the advice of the said
E.KCcutive Council, judge to be expedient iuid(>r the thni
existing circumstances of such township or parish.

39. And be it further enacted by the autliorily afore-
said. That it shall and may be lawful for His ^iajcstv,
his JKnrs or successors, to authorize the (iovonior,
Lieutenant-Governor, or person admiiiisteriiiij^ tli(> ;,'()-
vernment of each of tlie said provinces rcsj)t>ctiv(«|y,
to present to every such parsonages or rectory an incum-
bent or minister of tlie Church of England, who shall
have been duly ordained according to the rites of tli(>
said church, and to supply from time; to time such
vacancies as may happen tlierein ; and tliat evei y jiersin
so i)resented to any such parsonage or rectoiy, shall liolil
and enjoy the sanu% and all rights, profits, and enioju.
ments thereunto btdonging or granted, as ftilly ami
amply, and in the sam(» maimer, and ca the same terms
and conditions, aiul liabh; to ^'>e perftu'mance of llic
same duties, as the iiicumben! t,i a parsonag(» or rectory
in England.

40. Provided always, and be it further enacted In
the authority aforesaid, That every such presentatiou of
an incumbejit or minister to any such | \rsona;,'(' or
rector}, and also the enjoyment of any such ])ars()ua;'i'
or rectory, and of i\w rights, profits, nnd emoliimeiils
thereof, by any such incumbent or minister, shall In'
subject and liable to all rights of institution, aiul all
other spiritual and ecclesiastical jurisdiction and autlio-

,;01.] 31 GEO. 3. c. 31.-BISIIOP OF NOVA SCOTIA. 587

i-itv, Mhicli have hcon lawfully cfrantcd by I lis ^fajcsty's
loval letters patent to the lilshop of Nova Scotia, or
wliii'li may hereafter, by llis ^[ajesty's royal autho-
litv, 1)'' laurully u^ranted or appointi'd to be administenMl
and executed within the said provinces, or either of
lliem res|)eetively, by the said J5ishf)p of Nora Scotia, or
1)V aiiv other person or [jorsons, aecordin<? to tlu; laws
and canons of ti.o Church of Enylaud, which are law-
fiillv made and received in I'JiKjland.

41 Provided alwavs, and be it furtlun- enacted bv ''■■"^!^'""« ^-
the authority aforesaid, That the; several provisions here- iiii..tm.iitof
iii-l)i'fore ccnitained, respectinijf the aHotnient and appro- siipp..itof.i
jimtion of lands for the supi)ort of a Protestant cleri?y !.i!.','.|;y!'J!' ■. in,.y
uitliiu the said provinci's, and also res])ectinj^ the consti- ]." \y.!',j",'''n,"\i ,,
tiitin;;, crectinii;, and endoAvinnj i)arsona<^es or rectories '••ri'-i-iiivc
vithin tlu; said i)rovMices, and also respectnii:^ the Ab><fmi.iy.
invscntation of incumbents or ministers to the same,
Mild also respect ini; the manner in which such incum-
iKMits or ministers shall hold and enjoy the* same, shall
In- siiltject to be varu'd or repealed by any express ])ro-
visidiis for that purpose, contained in any Act or ^Vcts
viiicli may be passed by the Let>;islative Council and
Asscnihly of th(> said provinces res]»ectively,and assented
t(i liy llis Majesty, his heirs or successors, under the
icsti'iction herein-after provided.

42. Provided nevertheless, and be it further enacted A't^: I'liu-
l)v the authority aforesaid, 'Xliat Arhenever anv Act or eomuii im.i
.\i'ts shall b(» passed by the Legislative Council and taiiiii'iV piilvi-'
.\sMMnhly of either of the said ])rovinces, containing; any ^)11"'J y,|.J'i',',
in'ovisions to varv or rei)eal the above-recited declaration i";iitioiiidi|>i.()
iiid provision contained in the said Act passed iji liu> liMUMut, pn-
liMirtccnth year of the reign of llis ])resent ^lajesty ; or 1,,'^ nis m.'i-
tit vary or repeal the ab)ve-recite(l provision contained in J^^'J""'*'*''"''
Mis ijajcsty's royal instructions, given on the third day
of January, in the year of our Lord one thousan»l seven
limidred aiul seventy. live, to the said CJuy Carletou
• Miuire, now Lord Dorchester ; or to vary or repeal tho

1 - i

\\\\

B!j|

* i

J.:

( I

1 f:

ilk

■ i

688 31 GKO. 3. c. 31.— TO BE LAID BEFORE IMP. I'AIJ. [lyr,,

provisions horcin-boforc containod for contiimincF tli(>
iorec^ and cll'oct of the said declaration and ])rovisi()iis'
or to vary or n'poal any of tlu^ several i)rovisi()iis licicjn!
before contaijied respecting the allotment and j\"mo.
prialion of lands for the snppovt of a Proiestaiit cicnpy
M illiin the said provinces ; or respectiiii^ the consljtiitiii''
erectin<>:, or endowini,' parsonajifes or rectories Mitliiu the
said provinces ; or respectincf the presentation of iiicuni.
hents or ministers to the same; or respectiiii,' llu; man.
ner in which snch incnnihents or ministers shall hold
and enjoy the same : And also that whenever aiiv Act
or Acts shall he so passed, containini^' any ])r()visi()iis
which shall in any manner ndate to or allect tlio cnjov.
nuint or exercise of any religions form or mode of
Avcu'ship; or shall impose or create any penalties, hur.
tliens, (lisal)ililies, or disqualilications in res[)ect of flic
same; or shall in any manner relate to or allect tin'
payment, recov(M"y, or enjoyment of any of the accus.
tomed dues or rii>hts herein -hefcn-e mentioned ; or sliajl
in any manner relate to the grantinii^, imposiiii,', or iv.
covering any other Jnes, or sti|)ends, or einoltiincnts
whatever, to he ])aid to or for the use of any niiiiistcr,
priest, (ecclesiastic, or teacher, according to any ivli-
gious form or mod(^ of worship, in respect of liis saiil
ollicc or function ; or shall in any manner relate to or
allect the estahlishment or discipline of the Cliurdi of
I'j II If I (I II (I, amongst the ministers and members tlinvnl
Mitliin the said provinces; or shall in any iiianiKt
relate to or alVeet the King's prerogative toueliiiii,' the
granting \\\o waste lands of the Crown within tlic siiid
])rovinces ; every such Act or Acts shall, ])r('vi(nis tn
anv declaration or signification of the King's aosciit
thereto, he laid before both IFouses of Parliaiiu'iit in
Croat Jiritftiii ; ami that it shall not be law fnl for lib
^Majesty, his heirs or successors, to signify his or tlicir
assent to any snch .Vet ov Acts, until thirty (liu"
after tlu^ same shall have been laid before llic sjiid
Houses, or to assent to any such Act or Acts, in ojih'
cither House of Tarlianient shall, within the said tliiri.'

' Mm

;j,l.] 31 CiKO. 3. c. 31.— FREE & COMMON SOCAGE.

589

(lavs, iV(l(lro.'<s His ]\[!vjesty, his heirs or successors, to
witlihoKl liis or Iheir assent from such Act or Acts; and
tluit no sucli iVct shall l)e valid or elTectual to any of the
Slid piu'[)()sos, within cither of the said i)rovinces, unless
the Leijfislative Council and Assemhly of such province
slmll, in liie .session in which the same shall have heen
iiiissed by them, have presented to the Governor,
liii'iitonant - (Jovernor, or person administering the
!:ov('riini('ut of such province, an address or addresses,
>[)(cilyinu: tliat such Act f"*Hains provisions for some of
the said purposes herein fore specially descrilxul, and
(k'siiin^: that, in order to j,'ive ettect to the same, such
Act slioidd he transmitted to Enyland without delay,
fitr the i)urpose of being laid before Parliament previous
tu the sigiiilication of Uis Majesty's assent thereto.

43. And be it further enacted by the authority afore-
said, That all lands which shall be hereafter granted
witliin the said province of Vpper Canada shall be
irniiitcd in free and common socage, in like manner as
lands ar(> now holden in free and common socage, in
tliat part of (Iroat Britain callinl Bur/land ; and that in
(ncrv cas(» \\ here lands slmll be hereaft(»r granted within
llif said province of Lower Canada, and where the
L'raiitco thereof shall desire the same to be granted in
lire and eonimon socage, the stime shall be so granted ;
Imt siihjoc't ne\ertheless to such alterations, with respec?^
to tho nature and coiLsequences of such teiuire of free
and conmion socage, as may be established by any law
or liuvs which may be made by His Majest \ , his heirs or
successors, by and with the advice and consent of the
1'1'1,'islative Council and Assembly of the province.

44. And be it further enacted by the authority
iitoro.siid, That if any person or persons holding any
lands in the said province of Upper Canada, hy virtue
"1 any ccrtilicjitc of occupation derived under the au-
'liority of the Governor and Council of the province of
Qxebcc, and having power and authority to alienate tho

Lands in I'ppcr
Ciinada to liu
prnntc'd in free
and common
Nociigu, and
also in Lower
C'anadii if ile-
birud.

Persons hoiil-
iiiK land.s in
I'pper Canada
may liuvc frcvh
granttt.

590

31 GEO. 3. 0. 31. -TEA ACT EXPLAINED.

;iT!11,

iiM

sanio, sliall at any tinio, from and aft(M' ilio ooininciicc
nicnt. of this Act, siiiTcndor tlu* samo into the Imiids of
J I is Majesty, liis Ijcmts (u* successors, by petition iu tlic
Governor, or Lieutenant-Governor, or per.son adniiiiis.
terinL^ tlie j^overnment of the said province, setting' foiUi
thiit lie, she, or they is or are d(»sir()us of holdjn^^ tlic
same in free and common socni^c;, siicli Clovcnior or
Lieut(Miant-Govern()r, or per.son administerinu; the ;;().
vernment, shall thereupon cause a fresh urant to be
made to such per.son or persons of such lauds, to h
liolden in free and common socaji^e.

Ss^n'I'to 45. Provided never! liele.ss, and he it further eiiaclcd
i..ir any riuht ])y {]iq authcu'itv aforcsaid, That such surrender and

or titlo to iho * *" .

iiiiids. grant shall not avoid or har any riglit or title to am

such lands so surrendered, or any inter(>st in iIh'
same, to Avhich any person or p(»r.sons, other tlian the
person or persons surreiuh'rinti; the same, sliall liaw
heen entith'd, cith(>r in possession, remainder, or rovcr-
sion, or otherwise, at the time of such surrender; lint
that every such surrender and grant shall he niadr
suhject to every such right, title, and interest, and lli;it
every such right, title, or interest shall he as valid
and etfcctual as if such surrender and grant had ncviT
been made.

18 Hoc. X
e. 12. ri'ci'.cd.

46. Alul Avhereas by an Act passed in the (M^'litccntli
year of the I'eign of llis ]n'esent INFajesty, intitnlcd, ".\n
Act for removing all doubts and a])prehensi(iiis con-
cerning Taxation bv the Parliament of Grcaf Jirilcin,
in any of the Colonics, Provinces, and Plant il ions in
North Amc)''ic(t,nm\ the H'cst Indies; and for repcaliinr
so much of an Act, made in the seventh year ol' tlic
reign of Ifis ])re.sent ^fajesty, as imposes a Duty m
Tea imported from Great Bi'itohi into any C()l<»ny ur
Plantation iu At)if'rlc<t," or relates thereto, it liaslicin
declared,' " That tin; Kim; and Parliament of Gm'l

' Tlio pronnililo of IS Ofo. 3. Urifniii for tin- purposf '>!' riii«in):
177S. c. I'J.. wiis : " Wliorcns lux- a rcvfiiiu' in His Miijcsty's coiii-
atioii liv lilt! I'lirliainoiit of Onut iiii'.s, proviiu'cs, and |i!iimI ilion> iii

r-'l

1701] 31GE0. 3. c. 31— "REGULTN. OF COMMERCE." 501

Brildiii uill not ini])ose any duty, tax, or assessment
wliiitt'vcr, payable in any of His Majesty's coloin'«'s,
iiiovinces, and plantations in North Anwr'ica or the
]]'(>sl Indies, excei)t only such duties as it may he ex-
iHHliont to impose for the regulation of commerce,*
the net produce of such dities to he always paid and
iinpliod to and for the use of the colony, i)r<)vince, or
]iliintatioii in Avhich the same shall he resi)ectively
levied, ill such manner as other duties collected hy
the iuitlioiity of the resj)ectivo general Courts, or
ircnoral Assemhlies, of such colonies, provinces, or plan-
tations arc ordinarily i)aid and applied " : And whereas
it is necessary, for the general hencfit of the lirilish
Empire, that such power of regulation of commerce
slidiild continue to he exercised hy His Majesty, his
lii'iis or successors, and tlie Parliament of Great Br'Uain,
snl)ject nevertheless to the condition herein-hefore re-
cited, with respect to the application of any duties
which may he imposed for that purpose: lie it there- This Act not to
tore enacted hy the authority aforesaid. That nothing oixiMiion of
ill this Act contained shall extend, or he construed to I'luiia'n'ent
extend, to prev(mt or affect tlio execution of any law '■^••'''.''':''.'"«
which liath heen or shall at any time he made hy imi"'*'"K<i"ti'8
llis Majesty, his heirs or successors, and the Parlia- tion of imvipi-
)nent of Great liritain, for cstahlishiug regulations mtm'!''&e"'"
or jnoliihilions, or iov imposing, levying, or collecting
duties fof the regulation of navigation, or for the

Xdrtli Anu'iica, Ima liocn found Iiy
ixiH'i'ii'iK'i' to oecnsioii fjrcat iin-
i.i>iiii'ss iiiid (lis(>nl(U's ainoiii; His
.M.ilist\ s I'liilhliil Hiil)joc'ts, wlio
iiiiiy iii'viTlliclcss !)(« (lispo.Hcd to
:iikii(i\vlcc|;r,. tilt! jiistict! of con-
iriKiilinir td tlu" coiiiinon dcfciico
"I '111' iMiiiiiic. provided such coii-
tiilintii.il siioiild Im" niisi'd uiitler
tlii'initJKiiity of ti>o p'ueral Court,
iif (icncrii! Asseiul)ly of oacli ro-
>lh'<'tivi'eol()iiy, province, or plantu-
tiim; And wiicreas, in onler as
"I'll to remove llie said uneivsiness
"ii'l I" iiuifl the minds of Ili.s
Mujrslj's siil.jeets wlio may be

disposed to return to their nlle-
giiiuee [th(' idea was entertained
hnijj after this tliat the revolted
coU>nies of America woidd yet re-
turn] as to r<'store fho peaeo anil
welfare of all His Majesty's do-
minions, it is expedient to declare."
ite., as {ifiven in the text. This
Act rt'pealed so much of iho
7 (leo. 3. f. 1(5. as imposed a
duly on tea.

' " Rcfjulalion of eommorce "
used in an impirial sense. See
see. ill, snii-see. 2, B. N. A. Act,
1H157, ante p. 52.

? »
i!
ill

T-'\'

' \

■

592

31 OEO. 3. c. 31.— DUTIES TO PllOV.

[17D1,

rcLi^uIalion of tli(^ coinincvce to be carriod on l)('t\vc(>ii
llio sjiid two provinces, or between eitber of the siiid
l)rovinces and any otber part of His Maj(>sty's do.
minions, or between eitber of tbe said provinces jiud
any forei^-n country or state, or for appoint jnrp and
directini,' tlic payment of drawbacks of such dutiis
so imposed, or to i,nvc to His Majesty, liis liojrs oi-
successors, any power or autbority, by and with i]i,.
advice and consent of sucb Lej^isUitive Councils and
AssembUes respectively, to vary or r(>peal any such law
or laws, or any i)art thereof, or iu any luaiuior to
prevent or obstruct tbe execution thereof.
Suoh .lutu's to 47^ Provided always, and be? it enacted i)v tlio

IK' Hppllul to 1 • n . I J >'"

tho list, oi' the authority aforesaid, That the net produce of all ilutics
rt>.|H. i\c pio- ^^,]jjg]j shall be so imposed shall at all times

villous.

Jll'lV.

after be aj)plied to and for tbe vise of each of tin-
said ])rovinccs respectively, and in sucb mannor only
as shall be directed by any law or laws mIucIi iiiuy
be made by His ^Majesty, bis heirs or successors, by
and with the advice and consent of the Lourislativc
Council and Assembly of sucb province.
HiH Maj.'sty in 4.Q ^„(| -^vbercas, by reason of tbe distance of tlic

( oiiiicil to n.t —■>-■• J ^^

and lU.iiiiv till' said provinces from this country, and of the cluuii;o

rcinimfiU'onifiit , -, ji.«i. ji jii

of this Aot, &c. to be made l)y this Act in the government tlioivol,
it may be necessary that there should be some inteniil
of time between the notificjition of this Act to the said
l)r<)vinces resj)ectively, and the day of its comnicncc-
nient within the said provinces resi^ectively : be it
therefore enacted by tbe authority aforesaid, That it
shall and may be lawful for His Majesty, with the
advice of bis Privy Council, to fix and declare, or to
authorize tbe Governor or Lieutenant-Governor of tlu'
province of Quebec, or the person administoriiii,' tlic
government th(M*e, to lix and declare the day ol' the
commenci'inent of this Act within the said proviiicis
resp(?ctively, provided that sucb day sliall not he later
than the thirty-first day of December in the year of
our Lord one thousand seven hundred and niiu'ty-onc,

1791] 31 GEO. 3. c. 31.— Isr MEETINa OF COUNCIL. 593
49 And 1)0 it further (MiacttMl bv tho authoritv ''''"'^^';'''- ..

*«'• "••"" ^ « • siiiii){ till- writs

•it'orcsjvid, That tho timo to ho fixed hv His Maiostv, <-• sii"""'<>i.s
. 1 1 • li . .1 ' •/ "'"' '•i''''t""i.

his lions or succossors, or under his or tlieir authority, &c. not to Ik.

1)V tlio Governor, LieutcMiant-Govcrnor, or person ad- i).c!;ti',"i7!)2.
ininistorini^ the f^overnnient in each ol" the said pro-
vinces vosiM'ctivoly, for issuini^ the writs of summons
and election, and callinc^ tot^ethor the Legislative Coun-
cils and Assemblies of (nich of the sjiid provinces respec-
tively, shall not be later than the thirty-first day of
December in the year of our Lord one thousand seven
hundred and ninety-two.

50. Provided always, and be it further enacted by «<'t''«"Mtho
the authority aforesaid. That during such interval as "'••>'" ^'t-'""'
may happon between the comnnmcemont of tins Act, intjottiu-
within tho said provinces resiJoctively, and the; first c'!iu',ioVmia
meetiuii; of the Legislative Council and Assembly of ^^|!^i"'''{;^;,*'''"'
pacli of the siid provinces respectively, it shall and may '""y ^<' """'«•
1)0 lawful for the Governor or Lieutenant-Governor of
such province, or for the jjorson administering the
Ifoverinuont therein, Avith the constMit of the major part
of such Kxoeutive Council as shall be appointed by His
Majesty for the affairs of such province, to make tem-
ponuy laws and ordinances for the good government,
peace, and Avelfare of such province,' in the same man-
ner, and luidor the same restrictions, as such laws or
ordinances might have been made by the Council for
the atVairs of the province of Quebec, constituted by
virtue of the above-mentioned Act of the fovn'teenth
year of the reign of His present Majesty ; and that such
temporary hiM's or ordinances shall be valid and binding
^vithin such province, until the expiration of six
months after the Legislative Council and Assembly of
such i)rovince shall have been first assembled by virtue
of and under the authority of this Act ; subject, never-
theless, to he sooner repealed or varied by any law or
laws which may be made by His Majesty, liis heirs or

;

• i

i i !

» See sec. 91, B. N. A. Act, 1807, ante.
S 2340. P P

51)1

\:\ i;ko. ;{. »•. i;{s.— norNDAiiY okfkncks. ^i«i,;j

II.'

successors, by and willi the advice and consrni of ||„.
said lie'j'islalivc^ Council and Ass(Mnl)ly.

33 GEO. 3. (1793) c. 70.
Determined hy 19 Geo, 3. c. 27.

33 Geo. 3. c. 70. -was entituled, "An Act to ('stiil)lish
Courts ol" Judicature in tlu^ Island of NoirfoniiilUmd
and the islands adjac«Mit." This Act was, in cllVct, a
continuation of the 32 Geo. 3. c. 10., which had in its
turn re-esnacted 31 Geo. 3. c. 29., which n^ciled l."i (Ico,
3. c. 31. and 2(5 Geo. 3. c. 2(5., Acts providini-' lor llic
decision of qm^stions concernin<if disputes as to the
wages of seamen engaged in the Neirfottndland fislierics.
Sre for Imperial Act now partly in force, 5 Goo. t. c. 07,
2)0st.

13 GEO. 3. (1803) c. 138.

On the Government of Brllhh Columbia heiiiiij (>st;i-
hlished, this Act was re})ealed so far as it alVeclcd that
province {see 1 & 2 Geo. 1. c. 00., 21 & 22 Vict. c. {)!).),
and totally repealed by S. L. R. Act, 1872, 35 & 30
Vict. c. 03.

13 Geo. 3. c. 138. was intituled, " An Act for cv-
tending the Jurisdiction of tin; Courts of Justice in the
Provinces of Lowe)" and Upper Couoda to the trial ami
punishment of persons guilty of crimes and ollVnci's
w ithin certain parts of North America adjoining to tlu'
said provinces."

The preamble was: Whereas crimes andolVencos haw
been committed in the Indian territories, and otlicr
parts of America, not within the limits of the proviucis
of Lower or Zipper Canada, or cither of tiiem, or of
the jurisdiction of any of the courts establislicd in those
jirovinccs, or within the limits of any civil GovernniPiit
of the United States of America, and an; tliorefore
not cognizable by any jurisdiction whatever, and by
reason thereof great crimes and olfcnccs have gone ami
may hereafter go unpunished, and greatly iucrca^^t^

1H09.]

40 OEO. ;{. c. 27— TIUAL OF OFFKNDKUS.

595

fi)T remedy the Act tlion prococMled to onact section 1 ,
That all ollences coinniitted within any ol' the Judhni,
tcnitoi'i(!s, or parts of America not within the limits
of citlier of th(i said provinces of Lower or Upper
I'liiiddo, or of any civil Government of the Uiiiled
Sl(t(('8, niij,'lil ho tried and snhjcMjt to the same j)unish-
iiicnts as if tho same had Imhmi committed in Lower
or V])\)C)' Comtda. By sec. 2, The (Jovcrnor of Lower
Ctiiwda niiu;ht empower persons to act as justiccvs for
any of tho Indian territories or parts of America
at'oiosjiid for hearinpf crimes and offences and com-
iiiittini,' to safe custody any olfendor for conveyance
to Lower Ctinada for trial. ]?y sec. JJ, Offenders mit^ht
be tried in the courts of Lower or Upper Canada, and
were to he liahle to the same punishment awarded as if
such crime had been really committed within the juris-
diction of the court of the province where tried. ]iy
soc. K If the offence charfifed unchn* this Act was prov(Hl
to have hecn committed by a person not a suhjc^ct of
His Maj(>sty, and also within tin? limits of any colony,
sintleinont, or territory helonijfin^ to any Europwin
Stiite, the court was to forthwith acquit such person
or jiersons. ]Jy sec. 5, It was provided that the trial
(il a siil)ject of His Maj(vsty sliould proceed, althoui^h
il should a|)|)ear that the alles?(Hl offence had been
ciiiiiiiiitted within the limits of any colony, settlement,
or territory JH'lonj^ing to any European State.

40 GEO. 3. (1809) c. 27.

hi part repealed by C Geo. 4. c. 59. s. 9, and wholly
ivpoalcd, except sec. 14, by S. L. li. (No. 2), 1872,
:5.) & 30 Vict. c. 97.

The 19 Geo. 3. c. 27. Act determined 33 Geo. 3. c. 70.,
an Act for establishing? courts of judicature in New-
foundland, hut re-enacted, with amendments, its pro-
visions.

The 14th section of this Act recited 14 Geo. 3. c. 83.
awl 31 Geo. 3. c. 31., aud then enacted that, notwith-

p p 2

\ii\l

' ' I ,

: ■ <

5J)0

1 & 2 OEO. 1. C-. GO.— IiriKSON'S HAY CO. [iso.

I .;'!

stfindinp; anyfliini,' in tlio latter Act, tho coast of l„i,.
radar and tlu; adjacent islands (('xc('i>t the islands of
Mailelaino) should be iv-anncvc'd to tho (lovcniinciit of
NeirfouniUand. The 0 Goo, l, c. 59. s. D ro-amicxcd to
Lower Caiioda part of tho coast of Labrador, nainch
so much of the coast as " lios to tho westward of a line
to bo drawn duo north and south from the hay or liar.
hour of Ance Sabloti, inclusive, as far as the 52iul dc.
gree of north latitude, with tho island of Aiidcosli and
all other islands adjacent to such part as last aforesaid
of tlu; coast of Labrador.'* This latter Act, therefore,
as ref^ards tho said j)ortion of tho coast of Ltibrador,
repealed, in part, 11) Goo. 3. c. 27. and 5 Geo. 1. c. 07.

''> ■'!

I t\'

1 il

■ I : ■

1 & 2 GEO. 1. (1821) 0. CO.
Certain Avords ; and Sec. !• repealed by 53 & 51 Vict.
c. 33. Sec. 5 repealed altogether, and sees. 0, 7, 8,
9, 10, 11, 12, 13, so far as they relate to lirilhli
Columbia and Vancouver's Inland, by S. L. E. (187 ll,
37 & 38 Vict. c. 35. See for surrender of rights h\
Hudson Bay Company, 31 & 32 Vict. c. 105.

An Act for regulating the Fur Trado, and c«<tal)-
lisliing* a Criminal and Civil Jurisdiction witliiii
certain parts of North America. [2 July 1821.1

WHEREAS the competition in the fur trade between
tho Governor and Company of Adventurers of
England trading into Hudson's Bay, and certain associa-
tions of persons trading under the name of " The North-
West Company of Ilonlreal," has boon found for soiin'
years past to be productive of groat inconA-enionco am!
loss, not only to tho said company and associations, but
to the said ti*ade in general, and also of great injiuy '^^
the native Indians, and of other persons subjects of His
Majesty : And Avhereas the animosities and feuds, iirisini
from such competition, have also for some years past
kept the interior of America, to the northward and west-
ward of the i)rovinces of Upper and Lower Caimhi, ami

1^21] 1A2GEO. 4. o 00.— OFFKNOEKS IM IIUD. BAY. 507

of the torrilorirs of tho United States of America, in a
state of contimieil disturbance : And whereas many
bivachcs of the peace, and violence extendini^ to tlie loss
of lives, and consicUn-ablc dc^struction of property, have
ciiiitiniially occurred therein : And whereas, for remedy
of such evils, it is expedient and necessary that some
more ellectual rei^ulations should \w established for the
apprehending, securini^, and bringing to justice all
persons committing such offences, and that His Majesty
vlioiild 1)«' empowered to regulate the said trade : And
whereas doubts have been entertained, whether the pro-
visions of an Act passed in the forty-third year of the
iri!,'n of His late ]\[ajesty King 0(^orge the Third, inti-
tuled " An Act for extending the .1 urisdiction of the ■*"''.*^i;"- ^•
Courts of Justice in the Provinces of Lower and Upper
VdiKuld, to the Trial and Punishment of Persons guilty of
Crimes and Offences within certain Parts of North
Aiiioricii adjoining to the said Provinces," extended to tho
territories granted by charter to the said (jovernor and
'onipany; and it is expedient that such doubts should
lie removed, and that tho said Act should be further cx-
teuded: ]?»; it therefore enacted by the King's most
Kxcelleut Majesty, 1)y and with the advice and consent
(•f the lords spiritual and temporal, and commons, in this
present Parliament assembled, ami by the authority of
the same. That from and after the passing of this Act, it EmrnwprinR
shall be lawful for Ilis Majesty, his heirs or successors, mHkoBinnisfor
to make grants or give his royal license, under the hand [™i7to"o«tiiin
anil seal of one of JTis :^^aiesty's principal Secretaries of !;";»« "f N'"rtii
^tate, to any body corporate, or company, or person or
persons, of or for the exclusive ju'ivilege of trading with
the Indians in all such parts of North America as shall
'»' sp(>cifio(l in any such grants or licenses respectively,
""t being part of the lands or territori(»s heretofor*;
wmted to the said Governor and Company of Adven-
turoi-sof Ktigland trading to Ilnchoti's Bai/,mu\ not being
part of any of His Majesty's provinces in North America,
"I' f>f any lands or territories behmging to the United
"states of America ; and all such grants and licenses shall

^1^^

: I :

iU\h

'I i

Limitinf; the
poriolH tor
which Hiic'h
fiirantf) may bo
matlo.

Persons to
whom 8iu'h
griiiitH Hhitll lo
miulo to piitor
into security.

598 1 & 2 QKO. I. c 00.— LICENSES TO TllADK [ihji

bo pfood, valid, and ofTectual for tho purpose of scciiiiii"
to all such bodies corjiorate, or companies, or persons
the sole and exclusive privileijfc; of tradiuij; willi iIk-
Indians in all such parts of Norlfi America (execpt as
herein-after excepted), as shall be spec! lied in siioh
{^mnts or licenses; anylhiny; contained in any Act (if
Acts of L'arlianuMit, or any law to the contrary not with.
staiuling.

2. Provided always, and be it further enacted. That
no such {;rant or license, made or j^iven by 1 lis .Majesty,
his heirs or successors, of any such exclusive |»ri\ih';,'(s
of tradinij Avith the Indians in such parts of Norlh
America as aforesaid, shall be made or given lor any
longer period than twenty-(nie years ; and no rent shall
be recpiired or demanded for or in respect of any such
j;rant or license, or any privil<\[,'es <j;iven thereby niithi'
the provisions of this Act, for the lirst period of twenty-
one years ; and from and after the expiration of such tiist
period of tAventy-on(; years, it shall be laAvful for His
Majesty, his heirs or successors, to reserve such rents in
any future grants or licenses to bo made to the .same or
any other parties, as shall be deemed just and reasonahlc,
with security for the payment thereof ; and such rents
shall be deemed part of the land revenues of His ^laj(>sty,
his heirs and successors, and be applicMl and accoiintid
for as the other land revenues of His !^[ajesty, liis liciis
or successors, shall, at tho time of payment of any siicli
rent being made, ])c Jipplicd and accounted for.

3. And be it further enacted, That from and after the
passing of this Act, the Governor and Company of Ad-
venturers trading to ITtulsou's Bay, and every body cor-
porate and company and person to whom every siicli
grnnt or license shall be made or given as aforesaid, shiiH
respectively keep accurate registers of all persons in
their employ in any parts of North America, and shall,
once in each year, return to His Majesty's Secretaries of
State, accurate duplicates of sucli registers, and sliiill
also enter iuto such security as shall be re(j[uired by His

I '\ :'f

1H21.] 1 A 2 OKO. I. 0. OC— U. S. ( OXVEN'TIOX.

noo

^^ajt's(y for tlic <liio cxoculioii of all procossos, cviininal
iiiul civil, as wi'll within tho tciTitorics iiicludod in any
such 'j;niut, as within those i^ranted hy charter to tho
flovcriioi' and Company of Adventurers tradintj to Ifiid-
sons Ihiif, and for the producini,' or deliverini,' into safo
oiistndy, for purpose of trial, of all persons in their
employ or actin«^ under tlieir authority, who shall ho
iliari,'P(l with any criminal olfemv*, and also for tho duo
ami I'iiitliful ohservanee of all such ruh^s, rej^ulations,
1111(1 stipulations as shall Ix^ contained in any such i^rant
or license, either for diminishing or pnn'enting the sale
or distribution of spirituous li([Uors to tho Indians, or
for promoting their moral and religious improvement,
or for any other object which His ^Fajesty may deem
necessary for tho remedy or ])reventiou of tho other
evils Avliich have hitherto been fouml to exist.

4. And whereas hy a convcmtion entered into ho-
twccn llis Majesty and tho United States of America,
it Mas stipulated and agreed, that any country on tho
iiortli-W(>st coast of America, to tho westward of tho
Stony ;^[ounta^ns, should ho free and open to tho citizens
and subjects of tho two powers for the term of ten
years from the date of tho signature of that convention ;
lie it tli(>reforo enacted. That nothing in this Act con-
tained shall ho doomed or construed to authorize any
body corporate, company, or person, to whom His
Majesty may have, under the provisions of this Act,
made a grant or given a license of exclusive trade with
the Indians in such parts of North America as aforesaid,
to claim or exercise any such exclusive trade within the
limits specified in the said article, to tho prejudice or
exclusion of anv citizens of tho said United States of
Amo'icd, Avho may ho engaged in tho said trade : Pro-
vided always, that no British subject shall trade with
the Indians within such limits, a\ ithout such grant or
license as is by this Act required.

5. And be it declared and enacted. That the said Act
passed in the forty-third year of the reign of llis late

Such (»rnnt of
cxc'luNivo trmlo
not to iiilcrfiTo
with citizi'iM of
tlie I'liitcd
States iK-yond
till! Stony
Mountiiins.

43 Ofo. 3.
c. 138.ixlcnclLHl
to the trrri-
torifts griint^'d
to the IIudson'R
Bay Coniiwny.

»■

1 ■ , 1

)

Courts of jmli-
pal iiro cstii-

(if ciiuws in
1 11(1 inn teiri
lories

600

1 & 2 GEO. 1. c. GO.— INDIAN TERUITOPIES. [IS21.

Majesty , intituled "An Vet for extendinf; tlie Tiu'isdiction
of the Courts of Justice in tlie Provinces of Loire/- and
Zipper Canada, to the Trial and Punishment of I'crsons
guilty ot Crimes and Offences within certain Parts of
North America mljoininii; to Hiesjiid Provinces," and all
the clauses and provisoes therein contained, slia!! he
deemed and construed, and it is and are herehy respcc.
tively declared, to extend to and over, and to he \n full
force in and throui^li all the territories herctoforo
granted to the Company of Adventurers of J'Jmj/ond
trading to Hudson s Bay ; anything in any Act or Acts
of Parliament, or this Act, or in any grant or cluirtor to
the company, to the c(mt"jiry notwithstanding.

6. And he it further enacted. That from and al'fci'
Wisii"<i ill I'p- the passing of this Act, the courts of judicature now
tfiki. (ouniziiiKc existmg, or wnicli may he herealter estahlislied ni the
pi'ovince of Tipper Canada, shall have the same ti\il
jurisdiction, power, and authority, as well in the eoijiii-
ssance of suits, as in the issuing process, mesne and liiml,
and in all other respects wliatsoever, within the said
Indian territories, and other parts of America luit
Avithin the limits of either of the provinces oi' Loiirr or
Upper Canada, or of any civd goveri'ment of tlic
United States, as the said courts hav(? or are invested
witli with' I the limits of the sjiid provinces of bmr,'
or Uppe Canada respectively; and that all and even
contract, agreement, deht, liahility, and demand wliat-
soever, made, entered into, incurred, or arising williiii
th<- said Indian territories and other parts of Amrritn.
and all and every wrong and injury to the j)erson or (o
property, real oi p<»rsonal, committed or lone within
the same, slui'l he and he deemed to he of the m\w
nature, and he cog)ii>:al)h^ hy the same courts, ina^'i-
trates, or jl(sti^;e;" of the peace, and he tried in thesann'
manner, and suh;ect to the same conse<pu'nces in all
respects, as if the same had heen made, entered mUi
incurred, arisen, committed, or done witliin the sjiiil
province of Upper Canada; anything in any Act er

mji] 1 A. 2 GEO. i. c. 00— JUSTICES OF IND. TER. COl

Vets of rai'lianiont, or p;rant or charter, to the contrary
nr.twitl'standiiiir : Provided always, that all such suits Act i..ns aiming

III""'"'" r> » •■ ^ to liiiiiU not

•iiul actions rclatiiu? to lands, or to any claims in respect «iihin ih. pm-
(»f land, not heuig within the iirovince ot Upper Cfniach, cnm.iai.. u
sliail 1"' decided according to the laws of that part of ll',7i"'i'' i'«w
the United Kin«?(U))n willed EiiyUnnl, and shall not he "' 1'-"k'"'''-
siibioct to or alVected hy any local Acts, statutes, or
laws of the Legislature of Upper Canada.

7 1 1(1 he it further enacted, That all process, writs, ^'•" 'i'"p "f

» • * * coiir's to 1 1'

orders, indu'inents, decrees and Acts Avhatsoever, to he is>n<.i intii.

issiunl, made, delivered, given, and done hy or under the luntoioru.

authority of the said courts, or either of them, shall

liavt' llie same force, authority, and elVeet within tlie

Slid Inil'idii territory and other parts of Jmcrica as afore-

siiid, as the wmio now have within the said province of

rppcr Oiiidda.

S And ])e it fiirther enacted, That it shall he lawful Air-i'.""""^

** ^ ol JUSlllTf! Oi

for the Governor or Licnitenant-Ciovernor or ])erson I'taco,
adiniiiistering the gov(»rnment for the tim»' heiiig of
Loin'f Cdiioda, hy commission under his liand and seal,
to aiithoii/.e all pers(ms who shall he appointed justices
of the peaee uiuh'r the provisions of this Act, within tin?
siiid Iiidioii territories, or other parts of America as
at'oresvid, or any other ])erson who shall he specially
named in any such commission, to act as a commissioner
Avi!hiiithe sjune, for the jmrpose of executi'g, enl'orcing,
and cuTying into elVect all such ])rocess, writs, orch'v ;.
jud;,'nieiits, decreis, and Acts, which shall hc^ issued,
math', delivered, given, or done ])y th(» said courts of
judicature, and which may recpiin' to he enforced and
executed within the said Indian territories, or such
otlier parts of North America as aforesaiil ; and in cast;
any peison or ])ersoiis whatsoever residing or heing
within the said Indian t«'rritori«'s, or such ';ther jiarts of
America as aforesjiid, shall refuse to oiiey or perform
any such process, writ, order, judgment, decree, or Act
ft the said courts, or shall resist or oppose the execution

002

1 k 2 (JKO. I. c. «G.— CONVEYING rKISOXKi{S. [isji

.ri!'

!>;;l

I'll ll^'lli/.IIIICCM
iwilU'll.

tlioroof, it shall and may bo lawful for tlu; said jiisficNs

of the peace or coininissioncrs, and they or any ol" tliciu

are and is lierehy required, on the same heiii;; piovcil

before him, by tlie oath or alUdavit of one credibK'

witness, to commit t'lc said person or persous so oUVmU

ins; as af(n'<>sjiid to custody, in order to his or their hcinir

conveyed to Vppor Canada; and that it shall he liuvful

i'or any such justic(» of the ])eace or cotnmissioiKM*, nr

any person or piM'sons actini; under his aulliorjty, to

convey or cause to be conveyed such person or [htsoiis

so olfendiiii^ as afore«iid to Ujtpt'i' Caiuuln, in pursii-

aiu'j' of such process, writ, order, decree, judirnieiit, (ir

acl, and such person and ])ers(nis shall be conimittcd

to <;aol by the said court, on his, her, ov their hciii^'

so brouL!;ht into the sjiid province of Upijcr ('inio(hi,\\\

Avhich such process, writ, onh'r, decree, judi^iuciit. m'

act was issued, made, delivered, i^iven, ..c done, until

a linal judj^ment or decree shall liave been proiioiiiiciMl

in such suit, and shall have been duly p<M loniKMl, iiml

all costs j)aid, in case such person or persons shall lie

a party or j)arties in such suit, or until the trial el" siidi

suit shall have lu>en concrluded, in case* such person (ir

])(>rsons shall be a witness or witnesses therein: I'm-

vided always, that if any j)erson or persons so appn-

bended as aforesaid shall enter into a bond reci)i,'ni/.ini(v

to any such justice of Ihe peace or commissioniM', mIiIi

two sufllcient sur<>ties, to the sitisfaction of such justitv

of the peace or commissioner, or the sjiid courts, cim-

ditioned to obey aiul perforu) such ])rocess, writ, onlri',

judi;nu'nt, decree or act as aforesaid, then .-uui in • inli

case it shall ainl mav be lawful for tlie said insticciil

liic peace or commissioner, or the said courts, to (lis-

charii;e such ])erson or ])ersons out of custody.

9. And be it further eriactrd, That in case Midi
person or persons shall not perforin and fulfil thefim-
ditii))) Oi" conditions of such reco^'ui/anee, tlien and in
such cas(> it shall and may be lawful for any sucli
justice or c(»mmissioner, and he is hereby re(|uirod, to

^slii^'ij iill

H21.] 1 & 2 GEO. 4. c. CO.— JUSTICES IN HUD. B.VY. 603

nssii,'!! such recognizance to the plaintiff or plaintiffs, in
niv suit in ^hich such process, writ, order, decree,
jii(lu;inent, or act shall have been issued, made, de-
livered, given, or done, who may maintain an action
ill ;lu! said courts in his own name against the said
sureties, and recover against such sureties the full
amount ol' such loss or daiiuige as such idaintill' shall
i)iove to have been sustaiiu'd by him, by reason of the
oriu'inal cause of action in respect of which such jiro-
ccss, writ, order, (U'cree, judgnitnt, or act of the said
courts were issued, made, delivered, given, or done as
il'ore^i '. notw'tlistaiuling anything contained in any
uiciiUT granted to the .said (Jovern(>r and Couipany ol'
Adventurers of Einjhind tmding to IIii(l,son\s liny,

10. And be '♦ further enacted, That it shall be lawful Apji^ininiont

.«, 1111 •. -i of |llslii'('s to

for Ills .Majesty, ii he snail deem it convenient so to d.i.pmino
(jo, to . ^; 0 a commission or eominissions to any person
or pei-s'^us to be luul act as ju.stices of the peace within
such I "^ '■ America as aforesaid, as well within any
territiiries iieretofon; granted to the Company of Ad-
ventuicrs of EiKjltind trading to Jlinlnou's Jbay, a,s
within the Indian territories of such other parts of
Jmericd as aforesaid ; and it shall be lawful for the
court in the ])rovince of Vpper Canada, in any ease;
in which it shall appear expedient to Inueany evidenc«^
taken hv eonnnission. or anv facts or issu<'. or anv cause
or suit ascertained, to issue a commission to any ihwii
or more ol" such justices to take such evidence, and
return the same, or try such issue uru\ for that j urpose
to hold courts, and to issue rtub])ainas or other processes
to compel attendance of phiiiitill's, d.-IVndants, jurcu's,
witnesses, and all other persons re(|uisite and essential
to the evecuttDU of the several purposes fur \vliie!i such
ctninuission or commissions had issued, and with the
like power and authority as are vesti'd in the com-is of
the Krtid province of Up/tcr Canada ; and amy order,
Vvrdiet, judgment, or decree that shall be made, found,
declared, or published by or before any c(nirt or courts

I. ,'

i if I

;

cot 1 & 2 GKO. 1. c. GO.— COURTS IN INI). TKIl.

[1821.

h .1

{ ;

hold under and by virtue; of such fjuiniission or eoni-
missions, shall he considered to he of as full elVcct, and
enforced in lik(; manner, as if the wmu; had hccMi inadc
found, declared, ov jMihlished within the jurisdiction of
the court of the .said province; and at llie linic ol'
i.ssuinij; such commissi(m or commissions sliail he dr.
dared tin; place or ])laces where such connnis><ion is
to he o])ened, and tli.? courts and proceediivs tluMc.
under held; and it shall he at the sjime lime piovidcd
lu)\v and hy what means the expenses of such conunis-
sion, and the execution thereof, shall he raiso<! and \m)-
vided for.

HiMM.ijrsty U^ And he it further enacted, That it shall h(> lawful

may \*»\u- rnm-

mi»Ni..iis iitiiiir for l[is ^^lajcsty, notwithsta'.dinijf anylhini^ C()ntain(M|

t.ini.n»viiiil,'' i'^ t'ds Act, or in any charter i^ranted to the said

i?Mlrtr..t"iv' ' (Jovernor and Company of Adventurers of EiKjlaml

;".'■')''"■'.'"'. , tradinu: to I[i(<hnu's fioif, from tiine to time, hv aiiv

"'"'''vii commission uiuh'r the «;reat seal, to authorize and cm.

power any such pers(;Ms so appomted justu'cs ol tlic

])eace as aforesaid, to sit aiul hold courts of record t'dv

the trial of criminal offences and misdi'ineannrs, and

also of civil causes; and it shall he lawful lor His

jVlajesty to order, direct, and authoriz<» Ihe nupoint-

nuMit of projier ollicers to act in aid of such conits

and justices within the jurisdiction assii^ned to sucii

courts and justices in anv such commission; anvlliini:

in this Act, or in anv charter of the (lovernor and

('om[»any of Merchant Adventurers of Mngbnul tradiii;'

to Jltn/son'ti li<'l/, to the contrary notv.ithstandin;,'.

iil

Cciiirl 111 l«'
ciiiislilnlnl im
1 1 Ik M.iji'sly
ithiill (linrt.

12. Provided always, and he it furth«'r enacted, Timt
such courts shall he constituted, as to tlu; munhor ol'
justices to preside' therein, and as to such plac(>s witliin
the said territories^ of the said comjtauy, or any /»(/'"«
ti'rritories, or otiu'r parts of North AnH'ricit as nfoiv-
sjud. atul th(; times and manner of holdini? tl"' '^*""''
as His ^lajestv shall from time to time onlcr and
jlirect ; hut shall not try any olfender upon ;ui} cliaii,'!'

w^^y^

I i

1H21.]

1 & 2 GEO. 1. V. CO.— APPEAL TO P. C.

COS

or iiKlic'tiiicnt for any IV'lony miulo llic suhjt^ct of capital ,!,|,'*| '„',',' l,,",',^.

miiiwhmcnt, or for anv offouco or i)assiiit' scntcuco ''"'"'"'"I'i'"'

iifl'cdini,' llio hlo ol any olioiuu'r, or adjudi^o or cause <ivii .uiidin

aiiv olTcndor to suffer capital punishment or transpor- Znimu\ 'in

tution, or take coi?nizance of or try any civil action J^^„„ ""'"'*''*

(If suit, in which the cause of such suit or action shall

exceed in value the amount or sum of two hundred

jioimds; and in ev(!ry wise ' 1" any otfence sui)jectini^

the person committin<^ the same to cjipital punishment

or tniiisporration, the court or any judge of any such

niiirt, or any justice; or justices of the peace, hefore

wliom any such olVender shall he hrought, shall commit

such oll'ender to sjife custody, and wiuse such olTeiuler

to he sent in such custody for trial in the court of tin;

jiivviiice of Vppor Canada.

13. And he it further enacted, 'JMiat all judi^mcmts Aii..winRmi
','i\en in any civil suit shall Ix? suhject to ai)peal to His "I'l""'-
Majesty in Council, in like manner as in otlnn" cases in

ills Majesty's province of Upper Canada, and also in
anv case in which the right or title to any land shall
he ill (|nestion.

14. And he it further enacted, That nothing in this A.t ii,)M,i
Act contained shall he taken or construed to alVeet any iiu'is.mv'nuy
iii,'ht, piiviiegi*, ai'.th')rity, or jm-isdiction which the ^'""'i'""y-
(idvcriior and Company of Adv(»nturers tmding to
Jltidsoii's Ihni are hy law (Mititled to claim and exercise

under their charter; hut that all such rights, j)rivileg(>s,
authorities, and jurisdictions shall renuiin in as full force,
virtue, and effect, tis if this Act had never heen made;
anything in this Act to the contrary notwithstanding.

3 GEO. 4. (1S22) c. Hi).
Kepealcd excejjt sees. Jil and 82, S. L. E. Act, 1874,
37 & ;{8 Vict. c. :}5. AW' (i C5eo. 4. c. 51).

An Act to regulate tlie Trade of tlie Provinces
of LowiT and Upper Canada, and for otlier
purposes relating to the said Provinces

[:jAu(/K8t 1822.]

! »i

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• I

'ilV:

i"i'l*?pl!

GOO

.3 GEO. 1. (>. 119— IXTKR IMIOV. TllADE.

[I Hi!;

WIIEKEAS it is ovi)(»(li(Mil to make rurllKM- ro'^n.
latioii ivs|H'clinii; Ww trade ol' the inovinccs of
Vppo' and Lowor Canada, in North yliucricK: IJc
it thorcfoiv enacted by the Kinji^'s most Excellent
IVfajesty, by and with the advice and consent of the
Lords spiritual and temporal, and commons, in (his
juvsent i*arliament assembled, and by the authority of
GoDasoftiin the same, That fron\ and after the passim^ of this Act

i>r(nliiiv of the .,,,,, . iii'i' '

ifiiina siai.s it shall he lawlul to import by land or inland iiavi;,Mtioii

■sriuMiuir (A.) HI iviiy Brtlmh or American vessel or vessels, boat or

pI'rhli'iliTo boats, carriai^^e or ttirriaijjes, the ^'oods, wares, and

iiiii.ioiiiu> commodities the u-rowth, i)roduce, or mannfaeture of

provmoi's ot " 1

i:pi..raii(i the United States of ylmrrica, enumerated in the
schedule or table annexed to tins Act marked (A.),
from any port or place in tlu; United States of Amonat,
into any port or phice of entry at whicli a oiistmn
liouse now is or hereafter may be lawfully established,
in either of the provinces of Upper and Lower Canado -.
Powortoiho Provided always nevertheless, that it shall and mav
(limiiiisii or in- l)e lawtul tor the lioverntn", Lieutenant-doviM-nor, or

crriiM' I he ports i ' • i. • j i x. e ' i\ e ji

ol iiiiiy. person administenn«jj the f;ovcrnment ot eitlier oi the

said provinces respectively, by and wi'h tlie adviee
and consent of the Ivxecutive Council thereof lor the
time beinjjf, from time to time to diminish or iiurease
by ])roelamation, the numln'r of })orts or ])laces wliieh
nre or hereafter may be ai»point(>(l in such ])r<)v!nc«
for the entry of j'dods, Avan's, and commodities imported
from (he United States o!" America,

l)iitit'« to Iw
)>iiiil on rlu<

2. And be it further enacted, That from and after tlio
jrooiixnu- ])assinf? of this Act, there shall be raised, levied, col-

ini'mttil in i . ■ i • i i ii* mr • j i • i • i

Sthfduic (H.) ; lect(>tl, and paid unto llis Alajesty, ins heu-s and sue-
cessors, for and upon such of the ij;oods, wa)'es, and
commoditi(»s which shall be so imported, as are eiuune-
rated in tin; scIkmIuIc or tablt annexed to this Act
markcMi (13.), the sevtM-al dutu^s of customs as the
same are respectively inserted or described and set forth
in tigures in the siiid sc ledule.

! ' I ll'T

1S22.]

3 GFJO. I. c. 119— TIIADK WITH IT. S.

007

lint.

3 I'rovidcd aUvavs, and l)o it fiirilior onacted, ^^''!'!' ,""y ,,

"• ^ • ^ iirlli'lr IS liablu

Tlmt iT uj);)ii the importation of any article chavi^cd lo a loi.mmi
with duty l)y this Act, tho said article sliall also he iiu.om'im-
liiiblc to the payniMit of duty undei- the authority Ki.'simii
ol' any colonial law, equal to or excecdint^ in ain()unt ]j[|'||'|^'j*'''''.'*''''
the duty charijred by this Act, then and in such Ciise the
duty cliari,'(!d n]} n such article by this Act shall not
1),' (loinanded or paid upon the inipr)rtation of such
arlicK': Provided also, that if the duty i)avable under J'" •'"''>■ I'o i.-^^

• 11 111-11 • »i« llic clirtlrciu'i!

such C()h)mal law shall be less in amount than the oniv simu i»!
ihity payable hy this Act, tlwMi and in such case Viw '*" ■
(lilTcrcnce only hetw(HMi the amount of ihv. duty ])ayahle
liy this Act, and the duty payable under the authority
ol' such colonial laws, siiall be deemed to })e tlic duty
])ayal)l(' by this Act ; and the same shall be collected
and paid in sucli and the like nianner, ami appro-
priated and aj)plied to such and the lik(i uses, as tho
duties siH'cilied in the said schedule annexed to this
Act marked (IJ.) are directed to be collected, paid, ap-
propriated, and ai)plied.

li ■ I

4. And be it further enacted. That the same ton- T.mimKo duii.s

1 • 1 11 1 • 1 Hi • *'"■ Anicnniii

naije duties snail be paid upim all Amcncan vessels or v.^mIhioIkiIu!
Imats, import inu; any fifoods into either of f'.o sjiid pro- siauJTmi.u"i''
viiices, as are or may be for the time beiny jjayabh^ 'v"J'k'^''
ill the United States of yluierica, on lirU'iiih v'ess(ds uv
lifiats entering; the harbours of the State from whence
such goods shall have been ip.iported.

5. And be it further enacted, That in all aises in Vatnoof^'oodrf
wliich the duties imposed by this Act upon the im- tain,,ihi'iii..
l»">rtal!on ol articles into the said provinces, or either i.y 3 o.o. j.

"t th(>m, arc clunjjjed, not accordinu;' to the Avcii^-ht, ''■^^'
wnife, (»!• measure, hut acjordint,' to the value thereof,
such value shall be ascertained in the mode in-escribed
hy an Act passed in this j)res(Mit scission of I'arliament,
"itituled "An Act to rej^ulate the Trtule between lEis
Majesty's Possessions in America and the Wo8t Indies,
and other Places in America and the West Indiea."

}■ i

till' MtllU.' Wlllllll

ao iliiys.

008 3GEO.i. I. 110.— IMPORTATION OFSPIHITS. [ih^o
it|.a.v.mntof Q ^,,,1 ]„. j^ fuHlior t'nactcd, Tliiit if the iiin„„.j,„.

iliii ii's In' ri'- !"" " I

*<i«''i ii'''""" or ijroprictor ol' such arliclcs sliall ivl'iisc to nav tli.>

iiiiiv Mvmv llii' , ,7 , , . , ,, ■11. •

jtimmIn ,111,1 s, II (lutics Juu'oby iinjM)si'(l tlu'ivon, ii shall an 1 niav !)(■
lawful for the collector or other chief oflic'ci of tin-
customs wh(»re such articles shall he iinj)<)rlt'(l, nnd hr
is hereby resi)ective]y requin'd, to take ami scciu'c tlic
saiiK?, with the casks or other i)acka<;;e thereof, and to
cause the same to he puhlic'ly sohl, within the space of
twenty days at the most after such refusal made, aiid
at such time and place as such ofBcer shall, l)y four or
more days' public notice, ajjpoint for that |)mj)()sc;
Avhich articles shall be sold to tlu» hii^'hest bidder, i.nd

Afiiriuiym.iit {\iq, monev arisinf' from the sale thereof sliall be annlinl

of lint V, over- * i. I -ii-i

i-iiis to Ih- |.,ii.i to the payment or the said duties, to<j;ether with the

iuiiiii».i ir. pjjj^,.g^.^ which shall have hecn occasioned by the slid

sale, and the over])lus (if any) shall be paid to .siidi

iniiiorter, proprietor, or any other person authorized to

receive the same.

7. And whereas a certain Act made and jiassed in
the twenty-eighth year of the reij^n of His late M.ijcsty

28Geo,3.c.39. Kinjr Geori^c the Third, intituled, "An Aet to allow
th(» Importation of Hum and other Sj)irits Iroai Jjis
IMajesty's Colonies or Plantations in the Jf'cst Iiiilh's
into the Province of Quebec, without PayincMit of Duty,
nnder certain Conditions and Kcstrictiims," lias Ihcii
repealed durinfi; the present session of Pailiaineiit :
And whereas (Umhts may h*^ entertained wlictlicr a
certain other Act, passed in the forty-ninth year of Ills

49 0(0.3.0.10. j;,y(i late Majesty's reisj-n, intituled, "An Act to allow

iillowin^tllio . n -r. 1 1 .1

iiii|..)riaii.mof tlu* Importatum of Rum and other Spirits iioin tlic
j-uni, ropeut . j^]j^,.,(i j^j- jjf>rmiuia into the Province o^ Lon-cv Coimla.
without Payment of Duty, on the same 'J'eriiis Jiiul
Conditions, as such Imjiortation may he made dirccily
from His Majesty's Suj^ar Colonies in the Jf'esf Indies,"
might not still remain in force, notwithstr.iidini,' flu'
repeal of the said first-menticmed Act; be it there foiv
enacted and declared. That tlie said last-mentioned Act
shall be and the same is hereby repealed.

1822] 3 GEO. 4. c. 119.— APPLICATION OF DUTIES.

009

8. And Avhoroas it is oxpcdicnt to alTord protection
to the trade l)otwe(Mi tho said colonics and plantations
iiiul tho province of Lotccr Canuifa, by iniposiiii;; tlu^
siime duty npon rum or other spirits, the produce or
mimufacture of the said colonies, imported from Great
Britain into the said province, as is now payable upon
till' same articles when imported from His ^[ajesty's
siiid colonies or plantiitions in the JFcui Indies ; he it
therefore enacted. That from and after the passini^ of
this Ai't, there shall be raised, levied, collected, and
paid unto ifis Majesty, his heirs or successors, for and
upon every f^al Ion of rum or other spirits, the produce
w manufacture of any of His ^[ajesty's islands, colonies,
or plantations in tin; tf^etil Indies, which shall be im-
])oi'ted or brought into any part of the said province^ of
Lotw CaiKula from Great Britain or Ireland, ovimyoi'
tho lirilisli dominions in I'Jurope, the sum of sixpence,
over and above all other duties now or hereafter to bo
iimdo payable therecm in the said province.

9. And be it further enacted, That the rates and
duties chart;eable by this Act shall be decMiicd, and are
hereby declared to be sterlin*^ money of Great Britain^
•m\ shall be collected, recovered, and paid to the
anwunt of the value which such nominal sums bear
in Great Britain ; and that such sums may be received
and taken aceordini,' to the proportion and value of live
sliillin<,'s and sixpeiKH^ to the ounce in silver; and that
tlio sjiid duties herein-before granted shall be received,
levied, collected, paid, and recovered in the same man-
iiirand form, and by such rules, ways and menus, and
iiiuior such penalties and forfeitures as any other duties
imahlc to His Majesty upon goods import<»d into the
siud provinces of Uiyper and Lower Canada, or into
'itlicr of them respectively, ar(! or shall be raised,
I'vied, collected, ])aid, and recovered by any Act or
\ets of I'arliament, as fully and effectimlly to all
'"tt'iits and purposes, as if the several clauses, powers,
•I'leetioi.s, penalties, and forfeitures relating thereto

S 2340. Q Q

Ai)ilitionnl
(Inly of (■>(/. per
KhIIdii im Wcat
India rum iiu-

Iioiti'il into
.iiwcr CiiniKla
from tliiN king-
tlum, iic.

Value of duties
and iipplication
of the money
nrising tiierohy.

';■*'•■
I'*;

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;j fJKO. 4. c. 11!).— INLAND XAVIOATIOX.

[ISL'i!

wvYo particularly rcpcatrd and aj^^ain onaolcd in tlic
body of this Act; and that all the moneys uliich sliail
arise ])y the said duties (except the necessary cliart^cs ot
raising, coUectintf, levying, recovering, answerini,', pay.
ing, and accouiiting for tlu; same) shall he paid hy the
collector of ]fis ]\rajesty's cnstoms, into the liands of
His ^Fajesty's Ueceiver-deneral in the said jnoviiurs
rcsp(»ctively for th<^ tinu^ l)cing, and shall he applied t(»
and for the use of the provinces of Upper nwd Loin'r
Caiuuld respectively, in such manner only as sliall Ih;
directed hy any law or laws which may he made In Jlis
Majesty, his heirs or successors, hy and with the advicr
and consent of the Legislative Council and Assembly ol'
each of the stiid provinces respectively.

Oo(k1s the 1.10. 10. And bo it further enacted, That it shall be

iluc6 of His ,

MiytotyVdo- lawtul to cxport HI any British or Amencati vossol or

niiniuns may i i i i j • • i>

i» exporter to vessels, boat or boats, carnago or carriages, troiu any ol
u^t!d''.sti;hl'r the ports or places of entry now or hereafti'i' to he
"" '"■ established in the said provinces, to any port or plaoo in
the United States of A.nerica, any article of tlio
growth, produce, or manufacture of any of His ^ia-
jesty's dominions, or any other article legally imi)orff(l
into the said provinces: i'rovided always, that iiotliiii;'
herein contained shall bo construed to permit or allow
the exportation of any arms or naval stores, unless ;i
license shall have been obtained for that pur[)()so from
His ^lajesty's Secretary of Stat<»; and in case any sucli
articles shall be shipped or Avaterborm^ for the purpose
of being exported contrary to this Act, the sanu! shall
be forfeited, and shall and may be seized and prosecuted
as herein-after directed.

but no iiriii
naval ston
Ik) ('X|i<>r((Ml
williout a
liconi>«.

! I

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;

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Not to affcft
inlaixl naviga-
tion of tho
provinces.

11. And be it further enact«ul. That nothing in this
.Vet contained sha'l be construed to interfen^ with or
repeal, as respects tho inland navigation of the siiid
provinces, any of the provisions contained in a cortaiu
Act pass(Ml in the seventh and eighth years of the ivi;,''!
of King William, intituled, "An Act for provontiii^'

T*T^i^

IS22.]

;J0E0. 4. c. 111).— WKSr iXIHA TIIADK.

I'miuN. and ivi^iiliitini? Abuses in tljr
Tmli'"; cxt't'pt ill so fur as tlu; saiiK* arc
iviiciilcd by this Act.

Oil

Plantation 7&8Wiii.3.

0. 22,

altrrod or

12. And I)(; it further enacted, That all i)enalties and ^««'<"7«"'l

^ ^ njiplicatioii ot

t'lirtVitures incurred in either of the said provinces under pumiitics.
this Act (('XC(![)t where it is otherwise provided), sliall
and may h(; su(«d For and prosecuted in any court liaving
coin|M't('iit jurisdiction within such province respec-
tively; and the same shall and may l)e recovered,
(lividi'd, and account(Ml for in the same manner and
lorm, and hy the same rules and regulations in all
ivspccts, as other penalties and forfeitures for olfences
a;';iinst th(5 laws relatinj^ to the customs and trade of
the said provinces r(!spoctiv«dy, shall or may hy any
Act or A(!ts of the legislatures of such provinces ho
ilircctpd to ho sued for, prosecutcul, recovered, divided,
and accounted for within the same respectively.

13. And whennis it is expedient to encourage the trade PrawiAckon
lictwcon Cdiinthf and llis Majesty s colonies ot jycw- ofrnmnud
l'(iiiii(ll((iiil, Nora Scollo, New Brunsirick, and Prince Nt'wfoumihnii,
Eihcanl /v/^<w(/,l)y enabling the merchants and traders &c. to Cumuia.
of Nt'ii'foinitlland to export from thence into Cmiada

rum and other spirits, the produce of the BrHiah JFest
hitUii Islands, or any of His ^Eajcsty's colonics on the
continent of South America, free of any duty which may
haw been imposcMl upon its importation from any of tho
places last aforesaid, and for which purpose to allow,
uimii tli(» export of such rum or other spirits, a drawback
of the ftdl duties paid upon the importation thereof; bo
it tlioivfon! enacted, 'Hiat from and after the passing of
tills Act, then; shall be paid and allowed, upon tho ex-
portation from any or either of the said colonies of
Xciifoiiiiilhuifl, Nora Scofia, New Brunswick, or Prince
l-liiwoi'd Inland, into Canada, of rum or other spirits,
''•''"S the produce; of the British JFest India Islands, or
"ly of llis ^lajesty's colonies on the continent of South
'Imrrira, a drawback of th(« full duties of customs which

';i

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IMAGE EVALUATION
TEST TARGET (MT-3)

iJ"

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1.0

I.I

1.25

^ b£

li£

00 1

1.4

Hiotpgraphic

Sciences
Corporation

23 WEST M»IN STREET

WEBSTER, N.Y. 14580

(716) 872-4503

£?.

012

3 GEO. 4. c. 119.— PKOV. CANADA TRADE.

[1822.

!!!

1 !

Conditions on
■\vhicli the
JrawUic'k sliuU
be paid.

Drawlvick how
payable.

may have been i)ai(l upon the importation tliorcof from
any of the j)lacos Jast aforesaid, into any or either ot tlio
said colonies of NcirfoiDHlland, Noca Scotia, New Bnnis-
wick, or l^rhice Edward Island, upon a certiticateboiiic
produced, mider the hands and seals of the collector and
comptroller of His Majesty's customs at Quebec, certi-
fying that the said rum or otlier spirits have h'HMi dulv
landed in Canada.

14. And he it further enacted, That no entry shall
pass, nor any drawback be jiaid or allowed, upon the ex-
portation of rum or other spirits from any or either of
the said colonies of Neicjmndland, Nova Scotia, Xl'k
Brunswick, or Frince Edward Island, into Canada,
v'lf'ss such entry be made in the name of the real owner
o." owners, proprietor or proprietors of t\m said goods;
and . :■■'<: before sucli owner or owners, proprietor or pro-
priv-U IT, shall receive the said drawback so allowed as
afo? jr-ai(t, one or more of them shall verity upon oath,
upon the debenture to be made out for the payment of
such drawback, that he or they is or are the real owner
or owners of the said goods ; nor unless proof on oath
shall be made to the satisfaction of the collector and
comptroller of His Majesty's customs at the port from
whence the said goods shall be so imported into Canada,
that the full duties due upon the imi)ortation of the said
goods at the said port had been paid and discharged:
Provided always, that in cases where the owners of the
said goods are resident in any other part of the liritisli
dominions, it shall be lawful for tlieir known and estali-
lished agents in the colonies from whence the said good<
shall be so imported into Canada, to take tlie necessary
oaths on belialf of the said owners.

15. And be it fiu'ther enacted, That the said dmwbaek
shall be paid by the collector of His Majesty's customs
at the port from whence the said goods shall he so im-
ported into Canada, with the consent of tliecoin))ti'oll('r
there, out of any moneys in liis hands arising from the
duties of customs.

' *l

|.!

1S22.]

3 GEO. 1. c, 1 19.— REGULATION OF DUTIES. G13

16 And be it further enacted, That no drawback ^ ;oi.opx-

*"• , : red from

sliall be paid and allowed as aforesaid, unless th i said >i wfouiKiiund
rum or otlicr spirits shall be duly entered for expor ation after first '^im-"'^
with the proper officers of the customs, and actually f°'''"^'""'
shipped on board the ship or vessel in which the said
ijoods arc intended to be exported, A\'ithin the space of
one year from the time such rum or other spirits were
originally Inijiorted into the colony from Aviience it is
intended to export them to Canada, nor unless such
drawljack shall be claimed within one year after the
if()0(ls arc; so shipped for exjiortatiou,

17. And Avhereas since the division of the province of Kpg"i;^tions as

A to settling tho

Quebec into the provinces of Lower and Upper Canada, proportions of
divers regulations have from time to time been made, by dniwUuks bc-
agreenients concluded under the authority of Acts passed ^^-^co^ by '"^°'
by tho legislatures of the said two provinces respectively, arbitrators,
concerning the imposing of duties upon articles imported
into the province of Lower Canada, and the payment of
drawbacks of such duties to the jirovince of Tipper
Canada, on account of the proi)ortion of goods so im-
])ortcd into Lower Canada, and passing from thence into
tho said province of Up)per Canada, and consumed there-
in; the last of which agreements expired on the first day
of July one thousand eight hundred and nineteen : And
whereas it appears by the report of the commissioners
last appointed for the purposes aforesaid, that the pro-
vince of Upper Canada claims certain arrearages from
tlie province of Lower Canada, on account of such draw-
backs, which claims arc not admitted on the part of the
province of Lower Canada ; and it further appears by
the report of the said commissioners, appointed on behalf
of l)oth provinces for the purposes aforesaid, that they
liavc failed to establish any regulation for the period
beyond the first day of July one thousand eight hundred
and nineteen, by reason that they could not agree upon
tlie proportion of duties to be paid to Tipper Canada by
"ay of drawbacks : Por remedy of the inconvenience
occasioned by the suspension of the said agreement, and

01 i 8 GKO. 4. c. 119.— DISPUTE AS TO DUTIES.

[1822,

Mir

ilM^iiii

I •-■

for the satisfactory invest ipjation and adjustment of tlio
said claims, be it enacted, That it shall and may l)e law.
ful for the Governor, Lieutenant-Governor, or por,son
administering the government of each of the said jn-o-
vinces of Tipper and Lower Canada, so soon as coiivo.
niently may be after the passing of this Act, to a])poiiit,
by commission under the great seal of his ros])(>ctivo
province, one arbitrator ; and that the said arbitiators.so
appointed shall have po^er, by an instrument imdor
their hands and seals, to appoint a third arbitrator ; and
in case of their not agreeing in such appointment witliin
one month from the date of the appointment of the
arbitrators so directed to be made on the part of tlie
respective provinces, or the last thereof if the said ap-
pointments shall not be made on the same day. His
Majesty, his heirs or successors, shall have power, by an
instrument under his sign manual, to appoint sucli tliird
arbitrator, Avho (if appointed in manner last mentioned)
shall not be an inhabitant of either of the said provinces ;
and that the three arbitrators so aj)pointed as aforesaid,
shall have power to hear and determine all claims of the
province of l^pper Canada upon the province of Loim
Canada, on account of draAvbacks or proportion of duties
under a2,"reements made and ratified bv the autlioritv of
the legislatures of the said two provinces, according to
the fair understanding and construction of the said
agreements ; and also to hear any claim Avhicli may he
advanced on the part of the province of Tipper Caimk,
to a pi'oportion of duties heretofore levied in Lom'
Canada under British Acts of Parliament, the division
of which duties shall not have been embraced within
the terms of any provisional agreement, and to report
the i)articulars of any such claim, with the evidence
thereupon, to the Lords Commissioners of His Majesty's
Treasury for the time being ; and if it shall appear to
the Commissioners of His Majesty's Treasury that any
sum is justly due from the province of Loiccr Canada
to the province of Tipper Canada on account of such
last-mentioned claim, they shall signify the same, to-

i i";

1S22.]

3 GEO. 4. c. 119.— PENALTIES.

G15

"cihav with the amount, to the Governor or person
administering the government of the province of Lower
Cmado for the tine being, who shall thereupon issue
his Avarraut n[)on the lieceiver - General of Lower
Canada, to pay such amount to the lleceiver- General
of Vpper Canada, in full discharge of any such claims.

18. And be it further enacted, That the said arbitra- Power of mbi-

, trators to suiid

tors shall have po\^■er to send for and examine such for persons and
persons, papers, and records as they shall judge ''"^° "*"
necessary for their information in the matters referred
to tliem; and that if any person or persons shall refuse Penalty on per-

.,■,., .-, I'lj 1 1 ^'ons refusing,

or neglect to attend the said arbitrators, or to produce £.m.
Ijcfore them any papers or documents, having been duly
served in either province with reasonable notice in
writing for that purpose, he, she, or they shall forfeit
and pay tlie sum of fifty pounds, to be recovered by bill,
plaint, or information, in any court having competent
jurisdiction within the province in Avhich such person
usually resides, to be applied towards the support of the
civil government of the said province, and to be
accounted for to His Majesty, through the Lords Com-
missioners of His Majesty's Treasury for the time being,
in such manner and form as * shall please His Majesty
to direct.

19. And be it further enacted. That the witnesses to witnesses to be
be produced before the said arbitrators, if it is desired

l)y either of the said arbitrators, shall and may be sworn
before any of His Majesty's justices of the peace within
cither of the said provinces, or before any one of the
said arbitrators, who are hereby empowered jointly or
severally to administer such oath; and that if any per- Penalty for
son shall, in any such oath so taken as aforesaid, wilfully " ^'^ ^^'^'
forswear himself, he shall be deemed guilty of wilful
and corrupt perjury.

20. And be it further enacted. That in case of flie Appointing

, . _ ' arbitrators on

ueath, removal, or incapacity of either of the said arbi- vacancies,
trators hefore making an aw^ard, or in case the third

'I'M'

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1 if

;

\ \

1 i

■ •

' ! .

! i

Award of arbi-
trators to be
final.

Award to bo
certified to the
Treasury and
the Governor,
&c. of the
provinces.

Payment of
Bum awarded.

616

3 GEO. 4. c. 119.— AKBITRATORS.

[1822.

arbitrator chosen or appointed as aforesaid sluill refuse
to act, another shall be appointed in his stead, in the
same manner as such arbitrator so dead, removed, or
become incapable or refusing to act as aforesaid, was
originally appointed ; and that in case a third arbitra-
tor shall be appointed by His Majesty as lierein-bet'ore
nientio7ied, it shall and may bo lawful for the Governor-
in-Chicf in and over the said provinces, to determine
the amoimt of remuneration to be paid to such arl)iti'a-
tor, which amount shall be defrayed in equal proportions
by each province, and shall be paid by warrants, to h
issued for that purpose by the Governor, Lieutenant-
Go venior, or person administering the government of
each province, upon the Uecciver-General thereof re-
spectively.

21. And be it further enacted. That the award of the
majority of the said arl)itrators, so f ; as the same sliall
be authorized by this Act, shall be iiual and conclusive
as to all matters therein contained ; and that if eitlier
of the arbitrators nominated by the Governor, Lieu-
tenant-Governor, or person administering the govern-
ment of either of the said provinces, shall refuse or
neglect to attend, on due notice being given, the two
remaining arbitrators may proceed to hear and determine
the matters referred to them, in the same manner as if
he were present.

22. And be it further enacted. That the said arl)itra-
tors, or a majority of them as herein-before meuticned,
shall certify the award to be made by them in the
premises, under their hands and seals, to the Com-
missioners of His Majesty's Treasury of the Unied
Kingdom of Great Britain and Ireland, and to the
Governor, Lieutenant-Governor, or person administerin!;
the government of eacli of the said provinces ; and that
if any sum be directed by the said award to be paid to
the province of Upper Canada by the province of Lower
Canada, it shall and may be lawful for the Governor,

1S22.] 3 GEO. 4. c. 119.— L. & U. CANADA TAXES.

617

Lieutenant - Governor, or person administering the
government of the said province of Lower Canada, and
he is herehy required to issue his warrant upon the
lleeeiver-General of the province of Lower Canada, in
favour of the Keceiver-Gcncral of tlie province of Upper
Canada, for the sum so awarded ; Avhich sum shall he
accordingly paid by the Receiver-General of Lower
Canada, in discharge of such warrant, and shall be
iiccounted for by him to the Lords Commissioners of
His Majesty's Treasury for the time being, in such
inannor and form as His Majesty, his heirs and
success'^ s, shall be graciously pleased to direct.

23. And be it further enacted, That the arbitrators Power to arW-

1 ji-iiini ji trators to detei'-

to be appomtcd uuaer this Act shall have power to hear mine claims
and determine any claim which may be advanced on LoweTcanada
the part of the province of Lower Canada, upon the can^dr"^
province of Upper Canada, being of the same descrip-
tion as those which by this Act may be preferred to the
same avl)itrators on the part of ZTpper Canada ; and
that their award thereupon shf .11 be final and conclusive,
and shall be carried into eif ect if the same be made in
favour of the province of Lower Canada, in the same
manner as is herein directed with respect to any award
which may be made in favour of the province of Upper
Canada.

24. And be it further enacted, That of all duties p^ jportion of
which have been levied in the province of Loiver L iTwer Can-
Canada since the first day of July one thousand eight Sh t'upp^r
hundred and nineteen, under any Act passed in the said ^anatia.
province, upon any goods, wares, merchandise, or com-
modities imported by sea into the province of Loiver

Canada, and also of all duties which after the passing
of this Act, and before the first day of July one
thousand eight hundred and twenty-four, shall be levied
ui the province of Lower Canada, under any Act passed
in the said province, upon any goods, wares, merchan-
dises, or commodities imported by sea into the said
province of Lower Canada, the province of Upper

ili

: i

r t

rmTnjT

1 1 '■■' i '

ii!

lilti

^iiil

^ J,

itlti!

After July 1 ,
1824, divisions
of duties shall
be awarded by
arbitrators as
herein-before
mentioned.

Award to be
made every
four years.

G18

a GEO. 4. c. 119.— PAYMENT OF DUTIES.

[1H22.

Canada shall be entitled to have and receive ono-fifth
part as the proportion of duties arising and c* to to tlie
said province of Tapper Canada upon sucli importations-
and that the Governor, Lieutenant-Governor, or person
administering the government of the province of Lower
Canada, shall and may issue his warrant forthwith upon
the lieceiver-General o^ Lower Canada, in favour of the
Receiver-General of the province of Upper Canada, for
such proportion of the duties as shall have been received
in the province of Lower Canada before the passin"' of
this Act, and shall and may on the first day of Januaiv
and the first day of July, in each and every year there.
after, issue his Avarrant upon the Receiver-General of
Lower Canada in like manner, for the payment to the
Receiver-General of Tipper Canada, of such sum as may
be then ascertained to be due on account of the said
proportion, according to the provisions of this iVct.

25. And be it further enacted, That immediately
after the said first day of July one thousand eight hun-
dred and twenty-four, the proportion to be paid to {};/;/:>;•
Canada for the four years next succeeding, of duties
levied in the province of Lower Canada, under the
authority of any Act or Acts passed or to bo passed
therein, upon goods, wares, and commodities imported
therein by sea, shall and may be ascertained by the
award of arbitrators, to be appointed in the same manner
and with the same powers as herein-before provided with
respect to the arbitrators to w^iom the question of arrears
is to be referred, and that arbitrators shall in like man-
ner be appointed, and an award made once after every
four years thereafter, for the purpose of establishing such
proj)ortion from time to time ; and all and every the pro-
visions contained in this Act, respecting the appointment,
powers, and remuneration of the arbitrators to be first
appointed after the passing thereof, and regarding the
execution of their duty, shall apply and extend to the
arbitrators to be appointed for the purpose3 last herein
mentioned.

1«2.]

3 OKO. 1. c. 110.— EXPENSES OF JUSTICE.

010

paid until a
new one m
made.

26 And 1)0 it further enacted, That after the said Proporfion

I'll 11 hcreliyesta-

first day oF 'Tuly one tiiousand eight hundred and tvA'ontv- wished to u

four, and until a new proportion of duties, to ho ])aid to

Vpper CiDUtcla, shall be established, as heroin-bofore

provided, and also at all times hereafter, in default of

iinv suoli proportion being appointed, the proportion of

duties last assigned to be paid to Ujyper Canada under

tlic authority of this Act, shall continue to be paid by

the province of Lower Canada, and warrants shall issue

for tlio payment of the same, in the same manner as for

tlie period before the same first day of July one thousand

eiglit hundred and twenty-four : Provided always, that

it shall ho in the power of the arbitrators nevertheless,

by their subsequent award, to alter such proportion from

the period for which it was last established, if it shall

appear to them just so to do.

27. And whereas by a certain Act of the Parhament f'rojportion of

' 1 • 1 p p Ti • t'Uties now to

of Grmt Britain passed in the fourteenth year of IJis !« aiiotced be-
lato Majesty's reign, intituled " An Act to establish a provinces^. *°
Fiuul towards farther defraying the Charges of the Ad- 1 4 Geo. 3. c. 88.
luinistration of Justice and Support of the Civil Govern-
ment within the Province of Quebec in America," certain
duties Avere imposed upon goods and commodities im-
])ortcd into the said province, Avhicli duties are by the
said Act directed to be applied, under the authority of
tlie Lord High Treasurer, or Commissioners of His
Majesty's Treasury, in making a more certain and
adequate provision towards defraying the expense of the
administration of justice, and the support of the civil Go-
vernment in the said province of Quebec ; and since the
division of the said province of Q?^e&e<? into the provinces
of rpper and Lower Canada, it has been contended, on
behalf of the said provinces, that the proceeds of such
duties should be distributed between the said two pro-
vinces in proportion to the amount of expenses defrayed .'
by eacli respectively towards the administration of
justice and the support of its civil Government, and not
in proportion to the estimated consumption within either

'III

III!

I I

I '

620

3 GEO. 1. c. 119.— OLD POWUll OF REPEAL.

[1n21

Duties imposed
by Lower Can-
ada to remain
in force till
repealed or
altered by a
legislative Act

of that pro-

province of the articles upon which such duties sluill
have been paid; he it therefore enacted, Tluit it shall ho
lawful for the arbitrators to be appointed, from tiino to
time, for the purpose of establishing the propoi'tion which
shall be paid to Upper Caiuuhi, of such duties as now
are, or hereafter may be imposed, by Acts passed in the
province of Lower Canada, to receive the claims in
behalf of each province with respect to its propoi-tion of
duties levied under tlie said iVct passed in the roiu'tcouth
year of His said lat<,> Majesty's reign, since the expiratioii
of the last provincial agreemeiit heretofore ratified
between the said two provinces, or which may hci'(>aftoi'
be levied under the authority of the said Act, upon goods
and commodities imported into Lower Canada, and to
report the same, with the evidence thereon, to the Lords
Commissioners of His Majesty's Treasury for the United
Kingdom of Great Brilaiu and L'eland for the time
being, in order that they may make such order rcspectiiif,'
the proportion in which the same shall be expended
within each of the said provinces respectively, for the
purposes mentioned in the said Act, as to them shall
seem meet: Provided always nevertheless, that nntil
such order shall be made by the Lords Commissioners of
His Majesty's Treasury as aforesaid, the proceeds of such
duties shall be distributed in the same proportion he-
tween the said two provinces, as the duties levied under
the provincial Acts of the province of Lower Canmk
•within the same period, subject nevertheless to be in-
creased or diminished, as respects either of the said
provinces, by any subsequent order of the said Lords
Commissioners, extending to the period for which no
such order had before been made.

28. And whereas the division of the province of
Quebec, into the two provinces of Upper and LoKcr
Canada, was intended for the common benefit of His
Majesty's subjects residing within both of the newly
constituted provinces, and not in any manner to obstruct
the intercourse or prejudice the trade to be carried ou

1H22.]

3 GEO. 4. c. 110.— COMMON BENEFITS.

621

1)V the inliabitants of any part of the said late province
of Quebec with Great Jiviluin, or with other countries ;
and it lias accordingly been made a subject of mutual
stipulation between the said two provinces, in the several
acioemcuts which have heretofore subsisted, that tlie
iii'oviuc'o ol' Cpper Canada shouhl not impose any duties
upon articles imported from Lowe)' Canada, but would
permit and allow the province of Lower Canada to
impose such duties as they might think fit, upon articles
imported into the said province of Lower Canada; of
ffhioli duties a certain proportion was by the said agree-
ments appointed to be paid to the i)rovince of Upper
Canada; And Avhereas in consequence of the incon-
veniences arising from the cessation of such agreements
as above recited, it has been found expedient to remedy
the evils now experienced in the province of Zipper
Canada, and to guai'd against such as might in future
arise from the exercise of an exclusive control, by the
Legislature of Lower Canada, OA^er the imports and
experts into and out of the port of Quebec ; and it is
furtiicr expedient, in order to enable the said province
of Up2)er Canada to meet the necessary cbarges upon
its ordinary revenue, and to provide with sufficient cer-
tainty for the support of its civil government, to estiib-
lish such control as may prevent the evils which have
arisen or may arise from the Legislature of Lower
Canada suffering to expire unexpectedly, or repealing
suddenly, and without affording to Upper Canada an
opportunity of remonstrance, existing duties, upon
which the principal part of its revenue, and the neces-
sary maintenance of its Government may depend ; be it
therefore enacted, That all and every the duties which,
at the time of the expiration of the last agreement be-
tween the said provinces of Zipper and Lower Canada,
were payable under any Act or Acts of the province of
Lower Canada, on the importation of any goods, wares,
or commodities into the said province of Lower Canada
(except such as may have been imposed for the regula-
tion of the trade by land or inland navigation, between

•I'

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:
• : 1

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■■■■■? i

.... Mii

Sii. I >

II M, !■,

h I i

(522 3GEO. I.e. 119.— ENCOURAGEMENT OF THADK. [I82j.

thf said |)i'ovinco and tlic United States of Ainoricd)
sh.'ill be payable and sball be levied accord in;^ to the
provisions contained in any such Acts, until any Act
or Acts for repealing or altering the said duties, or any
part thereof respectively, shall bo par-^ed by the Lofis-
lativ(» Council and Assembly of the said province of
Lowcv Canada, and until such Act or Acts, reiiealiiv''
or altering such duties, shall, after a copy tlicroof has
been transmitted to the Governor, Lioutenant-Govornor
or person administering the government of the ;)rovince
of Tipper Canada^ bo laid before both houses of the
Imperial Parliament, according to the forms and pro.
visions contained in a certain Act of the Parliament of
Great Britain, passed in the thirty-first year of the
3iGco. 3..'. 31. reign of His said late Majesty, intituled "An Act to
repeal certain parts of an Act passed in the fourteenth
year of His ]\1ajesty's reign, intituled 'An Act for
making more effectual Provision for the Government of
the Province of Quebec, in North America' and to
make further Provision for the Government of the said
Province," and the royal assent thereto proclaimed
within the province of Lower Canada, according to the
provisions of the said last -mentioned Act.

|'(

'hi

I ' i

No Act y>(
Legislature ini-
posinpr duties
whi'ivliy llu!
province of
Upper Oiiuiidii
may lie nffceled
to be valid until
laid before
Parliament.

29. And be it further enacted, That from and after
the passing of this Act, no Act of the Legislature of
the province of Loicer Canada, whereby any additional
or other duties shall or may be imposed on articles im-
ported by sea into the said province of Zoicer Canada,
and whereby the province of Upper Canada shall or
may in any respect be directly or indirectly affected,
shall have the force of law until the same shall have
been laid before the Imperial Parliament, as provided
in certain cases by the said Act passed in the thirty-first
year of His said late Majesty's reign, and tlic royal
assent thereto published by proclamation in the said
province of Louder Canada^ a copy of such Act having,
within ono month from the time of presenting the same
for the royal assent in the said province, been trans-

1 \

H-j;

;i(IK(). I.e. lin.— INTKH. PUOV. TllAFFIU.

r>'2l^

mittod I)y tUo CJovtM'nor, Licutciuiiit-dovcrnor, or person
;((li;iinist< ring tlu"! ^'ovcrninoiit of tho provinco of Loirrr
CdiKulii, to tho Governor, Lieut(miint-Goveriior, or
jicrsoii julministoring the government of the proviDCo
of Upix'i' Cdiidda : Provided always nevertheless, that
it shall not ho necessary to transmit any such Act to
1)0 laid hcl'oro tho Imperial Parliament, if, before the
same shall have been presented for the royal assent
witliin the said province of Loiver Canada, the Legis-
lative Council and Itoiiso of Assembly of the said
province of TIppov Canada shall, by address to tho
(rovcmor, Lieutenant-Governor, or person administer-
ing tho government of the said province of Upper
C'aiKidd, pray that their concurrence in the imposition
of the duties intended to be imposed by such Act may
be signified to the Governor, Lieutenant-Governor, or
person administering the government of the said pro-
vince of Lover Canada.

■W

30. And 'A ^.erea8 it is expedient that the productions
of the province of Upper Canada should be permitted
to be exported witliout being made subject by any Act
of the province of Lower Canada, either directly or in-
directly, to duties or impositions on their ai'rival in that
province, or in passing through the waters thereof: Be it
onacted. That from and after the passing of this Act,
all and every the boats, scows, rafts, cribs, and other
craft l)el()n;,nng to any of His jNtajesty's subjects, and
coming from the province of Upper Canada into the
province of Lower Canada, not laden with the produc-
tions of any foreign country, shall be allowed freely to
pass into and through the said province, and shall not
be subject to any rate, tax, duty, or imposition, other
than any charge which may now exist for pilotage, or
which may now be established for toll at any lock or
other work now actually erected on the navigable
waters thereof; any law, statute, or usage of the pro-
vmce of Lower Canada to the contrary notwithstand-
iug ; and that tho expense of improving the navigation

Loats nnd other
craft liolongiii{5
to His :r:i-
jcsty's sulijt'cts
may go from
Upper Camilla
into Lowor
Canada, not
laden with
foreign produc-
tions, without
being suliject to
any duty.

5i I

im.

iiii-

!i!::i:

How expenses
of iniproviiiK
the navigatioM
shuU be paiil.

Lnnds held in
fief and soijj;-
nory may, on
petition of the
owners to His
Majesty, &c.,
be changed to
the tjnure of
free and com-
mon socage.

021 3 GEO. 4. c. 119.— ALIENATION OF FIEFS. [ih22

of the waters of the river Saint Lawrence almll in
future be defrayed by such measures and in such pro.
j)ortions as the arbitrators to be appointed under the
provisions of this Act shall determine, upon tlie praver
of either province: Provided always, that no such de-
terminn+ion shall be carried into effect until sanctioned
and enacted by the legislatures of both of the said
provinces.

31. And whereas doubts have been entertained
whether the tenures of lands within the said province.s
of Zipper and Loiccr Canada holden in fief and soignoiy
can legally be changed : And whereas it may materiahv
tend to the improvement of such lands, and to tlie
general advantage of the said provinces, that such ten.
ares may henceforth be changed in manner herein-after
mentioned : Be it therefore further enaeted and de-
clared, That if any person or persons holding any lands
in the said provinces of Lower and Upper Cauailo, or
either of them, in fief and seignory, and liavini,' legal
power and authority to alienate the same, shall at any
time from and after the commencement of this Act,
surrender the same into the hands of Ilis Majesty, his
heirs or successors, and shall by petition to His Majesty,
or to the Governor, Lieutenant-Governor, or person ad-
ministering the government of the province in whieli
the lands so holden shall be situated, set forth that lie,
she, or they is or are desirous of holding the same in
free and common aocage, such Governor, Lieutenant-
Governor, or person administering the government of
such province as aforesaid in pursuance of His Majesty's
instructions, transmitted through his principal Secre-
tary of State for Colonial Affairs, and by and Avith the
advice and consent of the Executive Council of such
province, shall cause a fresh grant to be made to such
person or persons of such lands to be holden in free and
common socagt; in like manner as lands are now holden
in free and common socage in that part of Great Britain
called England ; subject nevertheless to payment to Ilis

-:.i;

1822] 3 GEO. t. c. 119.— ABOLISHING OF TENURES.

625

Maiesty, 1).V such grantee or grantees, of such sum or
sums of money as and for a commutation for the fines
and other (hies which wouhl have heen payahle to His
Majesty under the original tenures, and to such condi-
tioi.s as to Ills Majesty, or to the said Governor,
Lieutenant-Governor, or person administering the go-
Tornment as afores'iid, shall seem just and reasonahle :
Provided always, that on any such fresh grant heing
made as aforesaid, no allotment or appropriation of
lands for the support and maintenance of a Protestant
clergy shall be necessary ; but every such fresh grant
shall be valid and effectual without any specification of
lands for the purpose aforesaid ; any law or statute to
the contrary thereof in anywise notwithstanding.

32. And be it further enacted, That it shall and may His Majesty
be lawful for His Majesty, his heirs and successors, to with p°ore^L*
commute with any person holding lands at Cem et H^cenf et"'^*
^ctdes in any censive or fief of His Majesty within Rentes,
either of the said provinces, and such person may

obtain a release from His Majesty of all feudal rights
arising by reason of such tenure, and receive a grant
from His ^Majesty, liis heirs or successors, in free and
common socage, upon payment to His Majesty of such
sum of money as His Majesty, his heirs or successors,
may deem to be just and reasonahle, hy reason of the
release and grant aforesaid ; and all such sums of
money as shall be paid upon any comm.utations made
by virtue of this Act shall he applied towards the
administration of justice and the support of the civil
government of the said province.

33. And he it further enacted, That if any person or General issue,
persons shall be sued or prosecuted for anything done

or to be done in pursuance of this Act, such person or
persons may plead the general issue, and give this Act
and the special matter in evidence ; and if the plaintiff
or plaintiffs, prosecutor or prosecutors, shall become
non-suit, oi forbear the prosecution, or discontinue his,

S23iO. E B

"1 ^

1
V. \

■ !

f '!

1 1

. hd u

Treble costs.

626

3 GEO. 4. c. 119.— SCHEDULES.

[1822.

her, or their action, or if a verdict shall pass against
him, her, or them, the defendants shall have tiel)lo
costs, and shall have the like remedy for the same as
in cases where costs are by law ^iven to defendants.

jUM

I J

SCHEDULES TO WHICH THIS ACT REFERS,
SCHEDULE (A.)

Asses.

Live Stock of iiny sort

Lumber.

Barley.

1 Logwood.

Boans.

Biscuit.

Mahogany and other Wood li

Bread.

Cabinet Wares.

Beaver, and all sorts of Fur.

< Masts.

Bowsprits.

Mules.

Calavances.

Neat Cattle.

Cocoa.

Cattle.

Oats.

Cochineal.

Coin and Bullion.

Pease.

Cotton Wool.

Potatoes.

Poultry.

Drugs of all sorts.

Pitch."

Diamonds and I'recious Stones.

Rye.

Flax.

Kice.

Frnit and Veofetnbles.

Fustick, and all sorts of Wood

Staves.

for Dvcrs' use.

Skins.

Flour.

Shingles.

Grain of any sort.

Siicei).

Garden Seeds.

Tar.

Hemp.

Tallovy.

m 1

Heading Bonrds.

robacco.

Horsos.

Tiu'pentine.

Hoi^s.

Timber.

Hides.

Tortoise-shell.

Hay.

Hoops.

Wool.

Hardwood or Mill 'rind>er.

Wheat.

Indigo,

Yards.

SCHEUl

JLE (B.)

£ s. i
Barrel of Wheat Flour, not weighing more than IJ)6 lbs. net Storlini

weight - - - - . . . 0 ,; (I

Barrel of Biscuit, not weighing more than 196 lbs. net weight 0 !' C
For every cwt. of Biscuit - - - . -Old

For every 100 lbs. of Bread, made from wheat or other griiiii,

imported in bags or packages - - - - 0 2 li

I82t.] -^ &150- 4- c. 67.— JUSTICE IN NEWFOUNDLAND. 627

crlir

p;.

For cvory barrel of Flour, not weighing more than 196 lbs.

made from Rye, Peas, or Beans - - . .

For every bushel of Peas, Beans, liye, or Calavances
Rice, fill' every 100 1I)S. ne' weight - . . .

For every l,obO Shingles, called Boston Chips, not more than

12 inches in length . . . . .

For every 1,000 Shingles, being more than 12 inches in

length ----...
For every 1,000 Red Oak Staves - - - .

For every 1,000 AVhite Oak Staves or Headings
For every 1,000 Feet of White or Yellow Pine Lumber, of

one inch thick - -
For e\ery 1,000 <"eet of Pitch Pine Lumber -
Other kinils of Wood and Lumber, per 1,000 feet
For every 1,000 Wood Hoops . . . .

Horses, for every £100 of the value thereof -
Neat Cuttle, for every £100 of the value thereof
All other Live Stock, for every £100 of the value thereof

5 GEO. 4. (1824) c. 67.

Repealed in part to the effect of re-annexing part of
the coast of Labrador, &c. to Loioer Canada, by
6 Geo. L. c. 59. s. 9. Certain words repealed by S. L. R,
1890 (No. 1). See ante, 49 Geo. 3. o. 27. Continued in
force by 10 Geo. 4. c. 17., and by 2 & 3 Will. 4. c. 78.,
until altered by the advice of the House of Assembly.

An Act for the better Administration of Justice
in Newfoundland, and for other Purposes.

[VJth June 1824.]

WHEREAS it is expedient to make further provi-
sion for the administration of justice in the
colony of Neicfoimdland ; be it therefore enacted by the
King's most Excellent Majesty, by and with the advice
and consent of the lords spiritual and temporal, and
commons, in tliis present Parliament assembled, and by
the authority of the same, That it shall and may be Hi** Majesty
lawful for His Majesty, by his charter or letters patent SupeHoV'^ourt
under the great seal, to institute a Superior Court of tSSmi"
Judicature in Neicfoimdland, which shnll be called ^y'l'}\ '=°"''*

•' ' shall be a court

"The Supreme Court of Newfoundland " ; and the said of oyer and ter-
court shall be a court of record, and shall have all pmemi gaoi
civil and criminal jurisdiction whatever in Newfound- '^'''^■'"^'*'-
land, and in all lands, islands, and territories dependent

R B 2

628 5 GEO. 4. c. 67.— S. C, NEWFOUNDLAND. [1824

upon the Government thereof, as fully and amply, to
all intents and purposes, as His Majesty's Courts of
King's Bench, Common Pleas, Exchequer, and llioh
Court of Chancery, in that part of Great Britain called
England, have, or uuy of them hath ; and the said
Supreme Court shall also be a court of oyov and tev-
miner and general gaol delivery in and for Newfound-
land, and all places within the Government thereof;
and shall also have jurisdiction in all cases of ciiinos
and misdemeanors committed on the banks of New^
foundland, or any of the seas or island to which ships
or vessels repair from Newfoundland for carryuig on
the fishery.

Supreme Court 2. And bc it further enacted. That the said Supreme
chief jmiKe and Court sliall bc holdcu by a chief judge and two assistant
jmil'iri'ippohit- judges, bein;,' respectively l)arristers in Enyhiinl or
icitv wiio mT I^'cland of at least three years standing, or in some of
ivmovc them His Majcsty's colonies or plantations, who shall bo
appointed to such their offices by His Majisty, liis
heirs and successors : Provided always, that it shall l)o
lawful for His Majesty, his heirs and successors, from
time to time as occasion may require, to remove and
displace any such chief judge or assistant judge as
aforesaid, and in his stead to appoint any other fit and
proper person, being a barrister as aforesaid, to be tlie
chief judge or assistant judge of the said court, as the
case may be : And provided also, that in case any such
chief judge or assistant judge shall be absent from
Neicfoundland, or die, or resign such his office, or by
reason of sickness or otiierwise shall become incapable
of performing the duties thereof, then and in every
such case it shall be lawful for the Governor or acting
Governor of NewJ oundland, for the time being, to
nominate and appoint some fit and proper person to act
as chief judge or assistant judge, as the case may be, in
the place or stead of the judge so being absent, dying,
resigning bis office, or becoming incapable of perform-
ing the duties thereof, until such judge shall resume

iind iippoiiit
otlurs.

Govornov of
XcwfnuiMlliiiul
may iippiiint
juil;.'('s ill cer-
tiiin cases.

1S24.] 5 GEO. 4. c. 67.- COURTS OF VICE- ADM.

629

the duties of his office, or until a successor shall ho
appointed hj His Majesty, his heirs and successors ; and
the said chief judge and a&.^istant judges shall respec-
tively have and exercise such and the like powers and
authorities in Newfoundland, and in all places de-
pendent u])on the Government thereof, as any judge of
any of His Majesty's said Courts of King's Bench,
Common Pleas, and Exchequer, or as the Lord High
Chancellor of Great JBrilahi, hath or exercises in
EnyUoid.

3. And he it further enacted. That all issues of fact iss"fs of f"ft

,..,,. ., ... . to 1h' tried iit

Tiluch may be joined between the parties m any action Siiim Johns
at law originally brought before the said Supreme ^'*^"''y*
Court of Kecord, or which may be joined upon any
criminal information or prosecution depending in that
court, shall be tried at the town of Saint John's in the
island of Neicfoundland, by a jury of twelve men ; and
tor the purpose of hearing and trying all suits, actions, Appoiutment
and all informations, prosecutions, and other proceed-
ings, of what nature or kind soever, which may be
brought or commenced in the said Supreme Court, one
or more term or terms, or session or sessions of the said
court, shall be held at the town of Saint John's afore-
said, in each year, by the said chief judge and assistant
judges, at such times as the Governor or acting Gover-
nor of the said colony shall from time to time, by any
proclamation to be by him for that purpose issued,
direct and appoint.

4. And be it further enacted, That as often as any Actions in

■» ,, . .,11111 1, brciich of any

miormat ion, action, or suit shall be brought or prose- lawioiatinKio
cuted before the said Supreme Court, for the breach or ijHtfsh .oio-
violation of any law relating to the trade or revenue of }o''u!'lri"T!',i!!!'
the British colonies or plantations in America, such '"'"'''"" '"I'l"-
iniormation, action, or suit shall be heard and deter- Comtsotvice.
inined by the said court, according to the course of """'"y*
proceeding in similar cases in the Courts of Vice-Ad-
miralty in the said colonies or plantations ; and that it

ij\i:

^■

ii i

630

5 GEO. 1. c. 67.— PKOBATES.

[1H24.

Appeal.

shall and may be lawful for the party or })artios I'ooliiin'
aggrieved hy the judgment or decree of tlio said
Supreme Court, in any such cfise, to appeal from such
judgment or decree to the High Court of Admiralty, or
to His Majesty in Council, under svich and the like rules
and regulations as are observed in appeals from the said
Courts of Vice- Admiralty.

Supremo Court 5 ^^^^([ |jy j^ further (Miactcd, That the said Siii)iviue

may grant ad- ' _ , X "^

ministration of Court sliall havc power to grant administration of the

intestjites and etfccts of hitestatcs, and the probate of Avills ; and that

^^ii^!'&c.'^^ the effects of deceased persons shall not be administered

J I within the island of Newfoundland, or any island, place,

or territory dependent upon the Government tliereof,
unless administration or probate shall have boon duly
granted by the said Supreme Court ; and in all cases
Avhere the executor or executors of any will in Neu:-
fouiuUand, or the dependencies thereof, upon heing
duly cited, shall refuse or neglect to take out rol)ate
as aforesaid ; or Avhere the next of kin shall hi al)s('iit
from Neti'foiindland, and the effects of the deceased
shall appear to the said Sui)reme Court to be oxposed
and liable to waste, it shall be lawful for the said
Supreme Court to authorize and empower the registrar
or clerk of the said court, or some other fit and projier
person, to collect the said effects, and hold, or deposit.
or invest the same in such maimer and place, or uijoii
such security, and subject to such orders and directions
as shall be made by the said Supreme Court in respect
of the custody, control, or disposal of such effects.

Supreme Court
may appoint
(guardians for
infants and
lunatics.

6. And be it further enacted. That the said Supreino
Court shall have power and authority to ;•;
guardians and keepers for infants and their ',.■.: m-
according to the order and course observed in sncii ?r
in Euyland ; and also to appoint guardians and keepers
of the persons and estates of natural fools, and of such
as are or shall be deprived of their reason or luider-
standing, so as to be unable to govern themselves and their

[1H24.

ies fooling'
tlio said
from such
inivalty, ov
e liko rules
>m the said

d Suprcaie
tion of the
i ; and that
huiuistered
iand, place,
lit thereof,

"been duly
m all cases
ill in Ncu:-
ipon 1)cing
out ■ I'ohato
11 1)^ ahsent
ic deceased

be exposed
)v the said
lie reg'istvai'

and prtjper

or deposit.
Lce, or upon
d directions
•t in respect
i'ects.

id Suvirome

im.]

5 GEO. 4. c. 67.— CIRCUIT COURTS.

631

affairs, which the said Supreme Court shall have power
and authority to enquire of and determine, by inspection
of the person, or by such other ways and means as to
qich Supreme Court shall seem best for ascertaining
the truth.

7 And be it further enact(Hl, That it shall and may Ooyemor may

',„,-, y~, J- /-I i> J^ divide colony

1)0 lawtul for the Governor or acting Governor tor the into three dis-
tinie being of Newfoundland, by any proclamation or *"'^'*'
proclamations to be by him for that purpose issued, to
apportion and divide the said colony into three several
districts, and to fix and ascertain the boundaries and
limits of every such district, and such boundaries or
limits from time to time to alter as occasion may
rc(piire : Provided always, that such apportionment of
the said colony into such districts as aforesaid, be made
in sucli manner as to such Governor or acting Governor
may appear to be best adapted for ena1)ling the inhabi-
tants of the said colony to resort Avith ease and con-
venience to the circuit covirts to be therein "stablished
as after mentioned.

8. And be it further enacted. That it shall and may His Majesty

*- • 1 1 ™'^y institute

be lawful for His Majesty, by any such charter or circuit courts.

letters patent as aforesaid, to institute circuit courts in

each of the three districts in which the said colony may

be so divided as aforesaid ; and each of the said circuit

courts shall be holden once at least in each year by the

stud chief judge, or by one of the said assistant judges

of the said Supreme Court of Neivfoundland, at such

times, and at such one or more place or places Avitliiu

each of the said districts, as the Governor or acting

Gover.ior for the time being of Newfoundland shall from

time to time direct and appoint.

9, And he it further enacted, That the said circuit circuit courts
courts shall be respectively courts of record, and shall, rcconrcxer-"'
within the district in wliicli it may be holden, have and -^frisdiclionr'
exercise all such and the same jurisdiction, powers, anrl the Supreme
authority, as is hereby vested in the said Supreme Court iu the' cases of

ill

:i'

\i\'

hr-l

i:l

632

5 GEO. 4. c. 67— TRIAL OF CRIMES.

[1S21.

trcn.soii niul
felonies, not
within iKMieflt
of clergy, &e.

Crimes cogniz-
able in circuit
courts nnd civil
actions to bo
tried by jury
according to
the law of
England.

But M'here a
jury shall not
be formed,
trials for crimes
shall be hiul bj'
the circuit
judge and three
assessors, being
justices of
peace, and no-
minated by the
Governor.

Such assessors
liable to be
challenged.

of Newfoundland tliroucjliout tlio whole of tlu; said
colony ; saving and excepting the trying and dctci.
mining of treasons, or misprisions of trc^ason, and
felonies not Avithin the benefit of clergy, and Ww \u'i\m„
or determining of any information, suit, or action, for
the breach or violation of any Act of Parlianiont iv.
lating to the trade and revenue of the British colonics
in America ; all which said crimes and otfoncos, inl'or.
mations, suits, and actions, shall he tried, en(]uii'ed of,
heard, and determined in the said Supreme Court of
Newfoundland, and not elsewhere within the said
colony.

10. And he it further enacted, That all crimes and
misdemeanors, cognizable in the said circuit courts, and
all issues of fact which may be joined botwooii tlie
parties in any civil action, depending in the said ciiciiit
courts, shall be enquired of, heard, and determined by
the said circuit judge, and a jury of twelve men, accord-
ing to the rules and course of the law of Emjhiml, us
far as the situation and circumstances of the said colonv

will permit.

11, Provided nevertheless, and be it further enacted,
That if upon the trial of any crimes or misdeuieaiiors
before any of the said circuit courts, twelve good and
lawful men shall not appear to form a jury, then and in
all such cases such trial shall be had bv the circuit
judge and three assessors, being justices of the peace in
and for the said colony, or for some district thereof;
and the said justices shall be nominated from time Id
time to serve as such assessors as aforesaid by tlic
Governor or acting Governor for the time being of tlic
said colony, and shall severally be liable to be clialleng:ed
or objected to upon the special ground of direct interest
or affection, to be specified in open court at the time of
challenge ; and in case of such challenge or objection
being allowed by the judge of the said circuit court, tlie
justice of the peace so challenged or objected to sliall
be succeeded by another such justice of the peace, fflio

1H21.] 5 GP:0. 1. c. 07.— EVIDENCE IN WRITING.

(533

sluill in like inauncr bo nomiricatcd l)y the Govonioi' or
acting (lovornor for tlic time beini? as aforesaid, and be
liable in the same manner to challenge or objection,
until three such justices of the peace shall appear duly
qualilied for the trial of any offender in the said circuit
courts respectively ; and the said justices of the peace
shall thereupon severally take and repeat in open court
[he same oath as is taken by pcitit jiu'ors impanrelled
for the trial of any crime or misd(Mneanor in a court of
Yword in Btif/land ; and the judges of the said circuit
courts respectively shall, togetluH' with the said three
assessors, give their verdict upon every such trial in
open court ; but no person shall be found guilty by
any such verdict unless the judge of the said court,
and two at the least of his said assessors, shall concur
in such verdict ; and the pr*^ 3cedings in the said circuit
courts respectively shall be under tiie control and
direction of the respective judges thereof, and all
matters of law arising in the course of any trial shall
be determined by such judges respectively.

12. Provided also, and be it further enacted, That if
upon the trial of any issue or issues of fact joined
between the parties in any civil suit or action depend-
'ng in any of the said circuit courts, twelve good and
lawful men shall not appear to form a jury, all riich
issues of fact shall be tried and decided by the judge
of such court alone, and without a jury ; and that in
all cases where the sum or matter at issue in any such
suit or action shall exceed or be of the value of more
than fifty pounds sterling British money, the judges of
the said courts respectively shall cause the evidence on
any such hearing or trial as aforesaid to be taken down
in writing by the clerk, or other proper ofl&cer, in open
court, in the presence of the witnesses respectively
giving the same, and the evidence so taken shall be
entered upon the proceedings of the said courts respec-
tively, and be of record ; and in every case in which
any appeal shall be made and allowed under the pro-

Civil iictioiis to
Ix) (I'ieil liy tho
judge of tho
court aloiio
whore jury
shaU not bo
formed.

Evidence,
•ttliere tlio
nnitler at iwuo
is aliovc tlie
value of £50,
to be ill writing.

On appeal,
documents to
be produced.

Ife

i! 1

IJI

II i

r*!

5 GEO. 1. c, 07.— PROCEDURE.

[1824.

' ■ . lis

'■ Ul

m-l M:

i> '!

On application
of cither of the
parties before
trial, though
the sum docs
not amount to
£60, the judge
inaj permit the
evidence lo Ix)
recorded.

fi ' I

Appeal to the
Saprenie Court
may be made
on giving
notice.

visions of tliis Act, from any jiulgmont of tlio said
circuit courts, not foiuided on iho verdict of a juw.
copies of all documents and papers which sliall have
lieen produced and j^iven in evidence, sliall he certified
by the said clerk, or other proper officer, as autlicntic ;
and also copies of any documents and papers wliich
shall have; been produced and tendered in evid(nic(> and
r» jectcd, shall, if required by the party produciiiL;' tlic
same, be in like manner authenticated, but marked 1)y
such officer as aforesaid as rejected, in order that all
such copies may be annexed to the record, as part
thereof, in case of appeal.

13. And be it further enacted, That it shall he laAvfiil
for the judges of the said circuit courts respectively,
on the application of either of the parties, plaintill' or
defendant, at or before the trial of any issue of fact
joined in any civil suit or action commenced in the said
circuit courts respectively, in case such issue is not
trietl by a jury, to permit the evidence on such trial to
be recorded and certified as aforesaid, although the sum
or matter at issue mav be less in value than flt'tv
jjounds sterling, provided it shall be made to appear
to such judge that the judgment, decree, order, or
sentence, which may be given, made, or pronounced in
such suit or action, may be of such importance as to
render it proper that an ajipeal should be permitted;
and if, after giving or i^ronouncing such judgment,
decree, or order, the said judge shall be of opinion that
such judgment, decree, or order is of such, importance
as to make it proper that an appeal should he per-
mitted, it shall be lawful for the said judge to allow
either of the said parties, plaintiff or defendant, to
appeal to the Supreme Court, in like manner, and under
and subject to the like rules and regulations, as in and
by this Act directed in other cases of appeal.

14. And be it further enacted. That it shall be
lawful for the plaintiff or plaintiffs, defendant or

1824;

T) GEO. 1. e. 07.— VERDICT OF JURY.

635

(lofeudfints, acfainst whom any jud^-mont, docvrc, or
nrder of tli(5 said circuit courts respectively shall bo
(piveii, I'oi- oi' in respect of any sum or matter at issue
above or exceedini? the value of fifty pounds sterlinj^,
to appeal therefrom to the said Supreme Court, and the
party or parties appealing from such judgment, decree,
or order, shall, within foiu-teen days from the passing
thereof, give notice to the adverse party or parties of
such appeal, and within fourteen days from and after
such jiuli^ment, decree, or order, enter into sufficient
security, to he aj)proved by the judges of t^> said
circuit courts resp(ictively, to satisfy or perfo/;m the
slid jiul^'niont, decree, or order, in case the «;ame shall
liL' aflh-med, or the appeal dismissed, together Avitli such
further costs as shall be awarded thereon ; and in all
cases of appeal, where notice shall be given and secu-
rity perfecied as aforesaid, execution shall be stayed,
and not otherwise ; and the said Supreme Court shall
and may enquire into, hear, and decide all questions,
whether of law or of fact, arising upon any such appeal,
hut shall not admit or receive any evidence which A\as
not tendei'cd to the Circuit Court from which such
app(\al may be brought on the hearing or trial of any
such suit or action therein : Provided always, that the A'tiiiict of jmy
said Supreme Court shall not reverse, alter, or enquire qUirdi imc'
into any judgment of the said circuit courts, founded
on the verdict of a jury, except only for error of law
apparent upon the record.

15. And be it further enacted. That as often as any Actions may
action or suit shall be brought in the Supreme Court, from ono court
or in either of the said circuit courts jespectively, and
it sliall 1)0 made to appear to the court before which
siicli action or suit may be pending, that such action or
suit may be more conveniently heard and determined
either in the said Supreme Court or in some other of
the said circuit courts, it shall be lawful for such court
to permit and allow such action or suit to be removed
to such other court, and such allowance shall be cer-

f I

i l"

y\i

i . s i ;

]' A

|.H :

C53fl

6 GEO. 4. c, 67— SECURITY.

flH2l.

iWmX by the jiidn'c, t()i;'<'tli(M' uitli \]\o writ or pi-oecss
and proceed! 11 i^s in .siicli action or .suit, lo tli(» court into
which such iictioii or suit, shall be iiiteiKlcd to Iii>
removed; and tIu'reu])on it .sliali be lawi'iil I'or siuh
last-iueMtioued court, and such court is hereby iv(|iiiiv(l
to prouv'ed in such action or suit in like niaiiiicr as if
the same liad been orij^-inally commenced and |)iom..
cuted in such last-mentioned coiu't.

16. And bo it further enacted, That in all actions at

Di'foiulanis not

U|l|"'lirill^r (111

smiim.ins lliiir Jji^y o^. suits ill CCIuitV, wllich sliall 1)0 brOUi-llt ill tile
(j;i)oils lo Ik' at- ' ' 111

tachwi or 1.11'. .said courts re.sj)ectiv«My, where the debt or .siini dc

Hoiw arri'stt'il, i i i ii x i i t ' m • .

&c. ■ nianded sliail not l)c sworn to as nereni-aiter mentioned,

the defendant or defendants in such action or suit slmll
be made to appear to such action or suit by sunnuons,
to be issued by the chief judye of the said Sujiiviiic
Court or by the jiulges ol" the .said circuit courts
resi)ectively, and served by the proper officer on the
said defendant or del'oiidants personally, or left at his,
her, or their usual place of abode ; and in all cases
where such summons shall be disobeyed, or Avhere the
debt, damages, or thing demanded shall exceed ten pounds
sterling money, and shall be sworn to in an afiGdavit
made by the plaintifV or plaintiffs, or liis, her, or their
lawful attorney, then the said defendant or defendants
shall be made to api)ear by attachment of his, her, or
their goods, debts, or effects, or by arrest of the jiorson
of the said defendant or defendants ; and in case of his,
her, or their goods, debts, or eifects being attached as
aforesaid, such goods, debts, or effects, or so much
thereof as shall be judged by the said court sufficient
to satisfy the debt or damages, shall be held as security
for such debt or damages, and shall abide the order,
judgment, or decree of the court issuing such attach-
ment, unless the defendant or defendants, or some
person on his, her, or their behalf, shall appear and
give good and sufficient bail, to be approved by such
court, to satisfy such judgment, decree, or order; and
where the defendant or defendants has or have been

!"'-i

TTTni

m.]

5 GEO. t. c. 07.— MAKING RULES.

687

am'stt'd, Ik', she, or they slmll not Ix; (liscl»ai'<^r(i out of
custodv, until h(>, .she, or they slmll in like nmnm'r Imvo
irjvcn !,'0(t(l and sufricicnt bail to be approved by such
court, to s,itisl'y the ju(l<^inent, decree, or order of the
court ill the causes in wliicli such arrest was made; and
it slmll also bo lawful Tor the said courts res[)ectively,
when any such action or suit as aforesaid shall bo
(IcpciKlint,' therein, to cause to appear from (hiy to day
111! parties interested therein, and to examine upon oath
anv of such parties in case; such examination shall
appear to the .said court necessary for the discovery of
the truth, but not otherwise ; and thereupon, and after
due consideration of all circumstances of the case, to
make such order, judgment, or d(;cree therein, and
award such damages and costs, as shall be just and
i'qiiital)le ; and such order, judgment, or decree shall
be enforced by attachment and .sale of the goods, debts,
and effects, or by arrest of the person or p.^rsons against
whom such order, judgment, or decree .shall bo made,
and iuipi'isonmcnt of such per.son or persons until such
order, judgment, or decree shall bo performed and
SiUistied.

17. And be it further enacted. That it shall be law- row.rs given
ful for His Majesty, his heirs and successors, by such mies ami orders
charter or letters patent as aforesaid, or by any order Ings i\'i nTsul'
or orders to be hcu'eaf ter issued bv and with the advice ^'^T"- ^ "■?''

nnil circuit

of his or thoir Privy Council, to make find prescribe, or courts, &c.
to authorize and empower the said Supreme Court of
yewfoundland, under such limitations as His Majesty
shall deem proper, to make and prescribe such rules
and orders touching and concerning the forms and
manner of proceeding in the said Supreme Court and
circuit courts respectively, and the practice and plead-
ings upon all indictments, informations, actions, suits,
and other matters to be therein brought ; or touching
or concerniug the appointing of commissioners to take
hail, and (>xamine witnesses ; the taking examinations
of witnesses de bene esse, and allowing the same as

iHf!

!i!

:li

; I

1 - ' I

|:i;

I; IH

. 1, s

I! n:'!

i'S";

i*>; iii^ '1

638

Power to tho
Governor to
institute ii
court of civil
jurisiliotion on
thu const of
Labnulor, &0.

51 Geo. 3. c. 45.

Court to be
hold by one
judge, nnd to
liciir and detcr-
inino com ■
plaints of a
civil nature.

5 GEO. 4. c. 67.— COAST OF LABRADOR.

Ll!>2t,

evidence ; the granting of probates of wills and l(>ttoi<«
of administration ; the proceedings of the slionff and
his deputies, and other ministerial officers ; the sum.
moning of assessors for the trial of crimes and mis-
demeanors in the said circuit courts ; the [)iocoss of
the said court, and the mode of executing the same-
the impannelling of juries ; the admission of l)iiiristors
attorneys, and solicitors; the fees, poundage, or m:
quisites to he lawfully demanded by any officer,
attorney, or solicitor in the said courts respectively
and all other matters and things whatsoever toucliiiii;
the practice of the said courts, as to His jMajestv, his
heirs and successors, shall seem meet for the propoi'
conduct of business in the said courts ; and snch rules
and orders from time to time to alter, amend, or revoke.
as to His Majesty, his heirs and successors, shall seem
requisite.

18. And whereas it is expedient to make fiivtlier
provision for the administration of justice on the coast
of Labrador ; be it further enacted, That so much of
an Act passed in tho fifty-first year of the reij^ni of His
said Majesty George the Third, intituled " An Act for
taking away the Public Use of certain Ships Rooms, in
the ToAvn of Saint John's in the Island of yewfoiinl
land, and for establishing Surrogate Courts on tlie
coast of Labrador, and in certain islands adjacent
thereto," as relates to the institution of surrogate 001111*,
shall be, and the same is hereby repealed ; and that it
shall and may be laAvful for the Govcn-nor or actin?
Governor of Neiqfoundland for tho time hmv^, to
institute a court of civil jurisdiction at any siuli
parts or places on the coast of Labrador, or tlie islands
adjacent thereto, which, in and by the said Act passed
in the fifty-first year of the reign of His ^lajtsty
George the Third, ai-e re-annexed to the Govciniiuiit
of Newfoundland, as occasion shall require ; and sucli
court shall be held by one judge, and shall he a court
of record, and shall have jurisdiction, power, and

lDOR.

[Ib2l.

ills and lottovs
■ho shci'iiT mid
;crs ; the sum-
'imcs and mis-
thc i)i'()cess of
ing the same;
11 of bavristoi's,
ndage, or per-
^ any oflicer,
s respectively;
5oevev toucliiii!;
[is ^tajesty, his
for the proper
and snch rales
lend, or revoke,
soi's, shall seem

1824.]

5 GEO. 4. c. 67.— APPEALS TO S. C.

639

authority to hear and determine all suits and complaints
of a civil nature arising within any of the said parts
and places on the coast of Labrador, or the islands
adjacent thereto ; and the said court shall be holden
1)V a judge, who shall he appointed from time to time
bv the Governor or acting Governor of Neiofoimdland,
and shall have a clerk and such other ministerial
officers as tUe Governor or acting Governor shall
appoint; and the proceedings of the said court shall
l)c summary, and ?ucli forms of process, and such rules
of practice and proceeding as shall he settled by the
chief judge of the said Supreme Court, shall be fol-
lowed Iw the said court, and no other.

19. And be it further enacted, That it shall and may Appeal to Su-
be lawful for the plaintiff or plaintiffs, defendant (jr Shi cases. '"
defendants, against Avhom any judgment, decree, or
order of the said court shall be given, for or in respect of
any sum or matter at issue above fifty pounds sterling,
or where the matter in dispute shall relate to the title
to any lands, tenements, right of fishery, annual rent,
or other matter, where, in the judgment of the said
court, rights in future may be bound, to appeal there-
from to the said Supreme Court ; and the party or
parties appealing from such judgment, decree, or order,
shall, within seven days from the passing tliereof, give
notice to the adverse party or parties of such appeal,
and within fourteen days fro' - and after such judg-
ment, decree, or order, enter into sufficient security,
to he approved, by the judge of the said court, or some
person to be appointed by him for that purpose in his
absence, to satisfy or perform the said judgment, decree,
or order, in case the same shall be affirmed, or the
appeal dismissed, together with such further costs as
shall be awarded thereon ; and in all cases of appeal,
where notice shall be given and security perfected as
aforesaid, execution shall be stayed, and not other-
wise.

\\\

I- 1 1

nlll

640

5 GEO. 4. c. 67— APPEALS TO P. C.

[1824.

^S,?'(":urt 20. And 1)0 it further enacted. That it shall ami
to iiis Miijcsty may bo lawful for Hi.s Maiesty, by his said cliartor nr

in Council. j #/ ' i/ mv i m

letters patent, to allow any person or persons, fooUno
aggrieved by any judgment, decree, order or soiitonco
of the said Supreiin; Court, to appeal thorcfroiiv to His
Majesty in Council, in such manner, within such time
and under and subject to such rules, reguLitions, and
limitations, as His Majesty, by such charter or letters
patent respectively, shall appoint and direct.

Governor, on 21. And bo it furthor enacted. That the GoAfM-iiov or

arrival of Ilis n ht f

Majesty's actuig (iovernor or Jyewjounalana, upon the ai'nval in
notiVWo- ^^^^ ^^^^ colony of His Majesty's charter or letters
the™ ourt" shall P'^t^nt for tho ostabli-shmont of the said courts by
1)6 opened, and yirtuc of tliis Act, sliall l)v proclamation notifv to the

thereupon so • i \ ^ . i

much of inhabitants of the said colony, tho time when the .said

asrehitostotho courts rospoctivoly shall 1)0 intended to bo o])oiio(l; and
Stut^rshaii ^^^ ^oow as the judges of the said Supremo Court shall
ih. repealed, and havc assuiiied and entered upon tho exercise of their

proceeUingsand .... , .

roeonis of those jurisdiction therein, then and from thenceforth so much
over to tho of tho Act passed in the forty-ninth year of the rciijn
of His late Majesty George tho Third, intituled "An Act
for establishing of Courts of Judicature in the Island

courts insti-
tuted under
this Act.

of Newfoundland, and in the Island adjacent ; and for
re-annexing Part of tho Coast of Labrador, and tlip
Islands lying on tho said Coast, to tho Government of
Newfoundland," as relates to the courts therel)y insti-
tuted, and respectively called the Suj)romo Court of
Judicature of the island of Newfoundland, and surro-
gate courts, shall cease to be in force and determine;
and every suit, action, complaint, matter, or thine:,
which shall bo depending in such last-mentioned courts
respectively, shall and may be proceeded u])()n In the
Supreme Court instituted under and by virtue of this
Act, or either of the said circuit courts which shall
have jurisdiction within the district or place in New-
foundland where such action or suit respectively was
depending ; and all proceedings which shall thereafter

1824] 5 GEO. 4. c. 67.— NEWFOUNDLD. INSOLVENTS. 641

1)P had in such action or suit respectively, shall be
conducted in like manner as if such action or suit had
been orii^inally commenced in one or other of the said
courts instituted under this Act ; and all the records,
muniments, and proceedings whatsoever, of and be-
iDui'in" to the said courts instituted under the said
recited Act respectively, shall, from and immediately
;iftoi' the opening of the said courts respectively insti-
tuted under this Act, be delivered over and deposited
lor safe custody in such of the said courts respectively
instituted under this Act as shall be fovmd most con-
venient, and all parties concerned shall and may have
recourse to the said records and proceedings, as to any
other records and proceedings of the said courts respec-
tively.

22. Aiul be it further enacted, That courts of S"uui°I.Mvto"r
"cnoral and (luarter sessions shall be holden at New- sessions shiiii
foundland and its dependencies at such times and places timusand
us the Governor or Acting Governor of Newfoimdland\u!s^„Zrs\vM
shall 1)v his i)roclamation appoint: and the said courts''^'".'""
i)f session respectively shall have power and authority,
ill a summary way, to take cognizance of all suits for
the payment of debts not exceeding forty shillings,
I'xcept the matter in dispute shall relate to the title to
any lands or tenements, or to the taking or demanding
of any fee of office or annual rent, and to award costs
tiicrein ; and also to hear and determine all disputes, to
;uiy amount, which may arise in Newfoundland con-
cerning tlie wages of seamen or fishermen, the supply
of halt, tile hiring of boats for the fishery, and all dis-
putes arising in Netofoundland aforesaid concerning the
cming or drying of fish, where the sum or matter in
question does not exceed or is not of the value of more
than five pounds sterling ; and the judgiiK^nt, deter-
mination, or award of the said courts of sessions or
justices respectively, in all such cases, shall be final.

23. And whereas it is expedient to make provision Proceedings in
tor declaring insolvencies in Newfoundland ; be it fur- solvency.
s 2m. s s

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642 5 GEO. 4. c. 67.— NEWFOUNDLD. INSOLVENTS. [I824

thcr enacted, Tluit as often as any writ of altaclunciit
or other process for the recovery of any debt or sum
due, sliall be issued by the said Supreme or Circuit
Courts respectively, against any person or persons re-
siding or having a house of trade, or carrvin" on
business in Newfmmdlmid, or any place Avitliiu tho
government thereof, and it shall be made to appear to
the said court out of which such writ or process sliall
have issued, at the return thereof, that the person or
persons against whom such writ or process liath issued
is or are unable to pay twenty shillings in the pound to
all his, her, or their creditors, it shall be lawful for such
court to cause the person or persons against whom such
process shall have issued, together with all his, her, or
their creditors, to be summoned by public notice to
attend the said court on a certain day, and in the
meantime, if it shall appear necessary to th(» said court,
to appoint one or more of the said creditors as provi-
sional trustee or trustees, to discover, collect, and
receive the estates and effects of such person or persons
so appearing to be insolvent, subject to the oiders ai\d
directions of the said court ; and if after due examinii-
tion of the person or persons against whom process
shall have issued as aforesaid, or his, her, or their
lawful agent or agents, or if such person or persons
shall abscond, or fail to attend the said court pursuant
to summons as aforesaid, it shall be made to appear to
the satisfaction of the said court, that such person or
persons is or are insolvent, it shall be lawful for the siiid
court to declare such person or persons insolvent accord-
ingly, and immediately to take order for discovering,
collecting, and selling the estates, debts, and effects of
such insolvent, and distributing the produce thereof
amongst all his, her, or their creditors, and for that
purpose to authorize any two or more creditors of the
said insolvent or insolvents, who shall be chosen by the
major part in value of such creditors, as their agents
duly authorized in such behalf, whose debts amount
respectively to the sum of twenty pounds and upwards,

■ ;■

1824,]

5 GEO. 4. c. 07.— COMPOUNDING.

643

to act as trustpcs of such insolvent estate ; and such
court shall from time to time make such orders as it
shall deem proper, for better discovering, collecting,
realising, and distributing the estates, debts, and eifects
of the person or persons so declared insolvent, and, as
often as occasion shall require, for vesting the same, or
any part thereof, in the public funds or securiti(;s in
England, in the name or names of such person or
persons as shall for that purpose bo appointed by the
said court, until distribution can be made, as hereafter
mentioned.

,M\

24. And be it further enacted. That if such insolvent insolvents, on
person or persons shall make a full and true disclosure, dosuro <If^thoir
discovery, and surrender of all his, her, or their estates, f^^'inrto the
goods, debts, and (effects, and shall conform to the directions of

. . . . tiio jwoges, may

orders and directions of the said jufl'T'^is of the said courts receive artifi-
respectivcly, the same shall and may, with the consent sent of one half
in writing under the hands of one half in number and v" iuo"onhe'"'
value of the creditors of such insolvent or insolvents, he "•editors,
certified by the respective judges, under the seal of the
said courts respectively ; and such certificate may be
pleaded, and shall be a bar to every suit or action which
may at any time thereafter be brought in any court in
tlie said island or colony of Newfoundland or its de-
pendencies, for any debt or contract for payment of
money due or entered into by such person or persons
prior to the time of his, her, or their being declared
insolvent as aforesaid ; and if any person or persons so
declared insolvent as aforesaid shall fail to make a true
disclosure and discovery of all his, iier, or their estate or
estates, and effects, or shall otherwise refuse to conform
to the orders or directions of the said judges respectively,
it -hall be lawful for the said judges respectively to
Ciiuse such person or persons to be arrested and impri-
soned until he, she, or they shall make such disclosure
and discovery, and in all respects conform to the orders
of the said judges resi)ectively.

SS 2

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fi 14 5 GEO. 4. c. 67.— CREDITORS AND FISHERIES.

[1824.

C^rcditoi'.s for

supplies for I he
flsluTv for the
current scusoii
sliiiU lie privi-
lejieil, and l)i'
tirst piiiil 'iOs.
in the poiinil.

25. And be it further enacted, That in tho (listril)u.
tion to be made of the produce of the estates and eifects
ol' every person or persons hereafter declared insolvent
in NowfoimdUmd or its dependencies as aforesaid, evevv
creditor for supplies necessary, and furnished bond fide
for the fishery, during the current season, (that is to
say), at any time after the close of the last procedin"
season of the fishery, shall be considered as a })rivilca'e(l
creditor, and shall first be paid twenty shillings in the
pound, so far as the estates and effects of such insolvent
person or persons, which may be realised in Newfound.
land or its dependencies will go, and that all other cro-
Not to iiffert^^ ^ ditors shall be paid equally and rateably : Provided
always, that nothing in this Act contiiined .sliall affect
the i)rior claims of sea,men and other servants, actnally
employed in the catching and taking of fisli and oil,
upon all fish and oil caught by the hirers or omplovers
of such seamen, fishermen, or servants, or tho produce
or value therof ; and also provided that menial or do-
mestic servants shall in all cases be paid the balance of
their last preceding year's wages, out of the household
furniture, goods, and effects of every person so declared
insolvent.

the prior e
of seamen or
domestic ser-
vants.

Proceedings ■
cases where
persons die
insolvent.

:|0«*:;

26. And whereas it is expedient that the estates and
effects of deceased persons which may not be suflicienf
to pay all their just debts should be distributed accord-
ing to the manner herein directed concerning the estates
and effects of persons declared insolvent ; be it further
enacted, That as often as any person shall die in New-
foiindland, or in any place, or seas, or territory within
tho government thereof, and the estates and eifects of
such person shall not be sufficient to pay and satisfy all
his or her just debts, it shall be lawful for the said
courts respectively, at the petition of the executor or
executors, administrator or administrators of such de-
ceased person, or any one or more of his or her creditors,
to cause a true statement of the effects and debts of
such deceased person to be made in writing by and upon

T -fv.

1824,]

5 GEO. 4. c. 67.— INSOLVENTS.

615

the oath of the said executor or executors, administra-
tor or administrators, and laid before the said courts •
respectively ; and if it shall appear to the court before
which such statement shall be laid, that the (;state and
effects of such deceased person arc not sufficient to pay
all his or lier just debts, it shall be lawful for such court
to authorize and empower the executor or executors,
administrator or administrators of such deceased jjcrson
to collect, sell, and di8i)ose of all the estates and (jifects
of such deceased person, and to distribute the produce
thereof amongst his or her creditors, according to the
manner of distribution by this Act directed in respect
of the estates of persons declared insolvent, and always
suhject to the orders and directions of such court : Pro-
vided always, that nothing herein contained shall be
construed to affect the right of any creditor having a
judgment or special security for his or her debts.

27. And whereas it is expedient that provision should KopistTaw of

. . . . dceils iip-

be made for the registi'ation, within the said colony of poimuii.
Newfoundland, of all deeds, wills, and other assui-ances,
whereby any lands or tenements therein situate may bo
granted, conveyed, devised, mortgaged, charged, or
otherwise affected ; be it further enacted. That the chief
clerk of the Supreme Court of Newfoundland shall be
also the registrar of deeds within the district or circuit
in which the town of St. John's may be situate, and
that the chief clerks of each of the circuit courts to be
holden in and for the two other districts of the said
colony, shall respectively be the registrars of deeds
within such other districts or circuits ; and in each of
the said three districts an office shall be kept by such
chief clerk respectively, for the due registration of all
such deeds, wills, and other instruments as aforesaid.

Deeds shaU bo
registered at

28. And be it further enacted. That all deeds, wills, •^^°5? °^

' ' ' registration

conveyances, and other assurances in writing, of what «ithin Uie dis-

„ 1 1*1 11 1 1 i trict in which

nature or kmd soever, whereby any lands or tenements the knds arc
situate in the said colony, or the dependencies thereof, fZZ^'iiZ.

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646 5 GEO. 4. c. 07.— VERIB'ICATION OF DEEDS. [ih24.

may he hereafter granted, conveyed, devised, mortgaged,
. charged, or otherAvise atfected or intended so to be, shall
be registered at the office of registration Avithin the
district or circuit in which such lands may be situate ;
and that all such deeds, conveyances, and otlior assur-
ances as aforesaid, shall be left for registration at such
office within six months next after the execution thereof,
by the party or parties from Avhom any interest mav
pass, in case such party or parties may, at the time of
such execution thereof by him, her, or them, be resident
within the said colony or its dependencies, or within
twelve months in case such party or parties may at that
time be resident elscAvhere ; and all such wills as afore-
said shall be left for registration at such office twelve
months next after the death of the testator or testatrix,

How deeds 29. And be it further enacted, That some or one of

snau l)e veri- . , i i i

fled before the the parties executiiig any such deed, conveyance, or other
registrar. assuraucc as aforesaid, shall appear before the registrar
of deeds, and acknowledge the execution thereof hy
them, him, or her, or in case none of the parties to any
such deed, conveyance, or assurance shall be resident in
the said colony, then the same shall be acknowledged
before the said registrar of deeds, by some person duly
ajipointed for that purpose as the attorney of such par-
ties ; and in that case the execution of every such deed,
conveyance, or other assurance shall be further verified
by an affidavit to be sworn before the mayor or other
principal magistrate of any city, town, or place in or
near to which such parties respectively may be resident;
and such aflB davit shall also be preserved and registered
at the office of the said registrar of deeds.

Registrar to
indorse on the
deed n cer-
tificate of
registry.

30. And be it further enacted. That the registrar of
deeds shall and he is hereby required to indorse and
subscribe, on every such deed, conveyance, or other as-
surance, a certificate, in which shall be expressed the
day or time when the same was so acknowledged before
him, and the names of the person or persons by whom

1824.]

5 GEO. 4. c. 67.— REGISTRATION OF DEEDS. 647

such acknowledgment was made, and the time when the
same was actually registered, and the volume and page in
which the registry thereof is entered ; and every such
certificate so indorsed or suhsci^ibed shall be taken and
allowed as evidence of the due registration of any such
deed, conveyance, or assurance.

31. And be it further enacted, That the registrar Registrar to

. . ° . enter in the

of deeds shall and he is hereby required to enter in a bookofrogis-
lwokof registry, to be by him regularly kept for that SheS"""
purpose, a memorial of every deed, conveyance, or as- f,efo"rSmf''
surance which shall be so acknowledged before . him ;
and every such memorial shall contain a statement of
the year and day of the month on which such deed, con-
veyance, or assurance shall bear date, the names and ad-
ditions of all and every the parties, as well as the names
and additions, if any, of the several subscribing witnesses
thereto, the descriptions at length of the lands or tene-
ments conveyed or intended to be conveyed, charged, or
affected by such deed, conveyance, or assurance, as the
same are therein described, and the consideration of
every such deed, conveyance, or assurance, as the same
mav he therein stated ; all which memorials shall be
entered and recorded in the said book of registry with
all convenient dispatch, in the order of time in which
the same may have been acknowledged before the said
registrar,

32. And be it further enacted. That every deed, con- Deeds hereafter
veyance, or assurance hereafter to be made, whereby conveying '
any lands or tenements situate in Newfoundland, or the no" duly'
dependencies thereof, shall be granted, conveyed, re- deciami'void.
leased, charged, or incumbered, or intended so to be,

\^hich shall not be registered within the time and in the
manner herein-before mentioned, shall be absolutely
null and void to all intents and purposes : Provided
always, that every such deed, conveyance, or assurance
shall be deemed and taken to be a registered deed, con-
veyance, or assurance within the meaning of this Act,

■

' ■ 1

1 ''

' i ■

i ,

1 '

lu 1

848

5 GEO. 4. c. 07.— CHARTERS FOR TOW^JS.

[1824

I I

from the time when the execution thereof shall bo
acknowledged in manner aforesaid, heforo such rogistrav
of deeds as aforesaid.

auThoHze.f't'r 33. And be it furthei- enacted, That the iudgcs of
make rules thc Siipremc Court of Newfoundland shall he and th(«v

mill orders for , j i • i i i

the repistry of are hereby authorized to make any general rulo.s and
oc(s, &c. orders of court for maintaining order and v(>gulavitv
in the mode of taking snch acknowled*^ moiits, and
registering such deeds, wills, conveyances, and other
assurances as aforesaid, and for executing thc duties of
said office of registrar of deeds; provided that such
rules and orders be not in anywise repugnant to the
provisions of this present Act in that behalf.

OoNTrnormay 3^ ^j^^j whcrcas the lusticcs of the peace in Nmr.
iiiuices for the foundlctnd liavc been used to grant licenses for the
licenses for retail of ale and spirituous liquors, and it is proper to
lie amrspirits, Tcgulate tlic sunis to bc demanded upon such liccn.ses,
ami as to the ^^-^^ ^^^ make provisiou for the appropriation thereof, and

sums to bo -i 111 '

paid and the for preventing abuses in the granting of such licenses,
and in the sale of spirits by unlicensed persons in thc
said colony ; be it therefore enacted, That it shall and
may be lawful for the Governor or Acting Governor of
Newfoundland to make, establish, and ordain such rules
and ordinances as to him may seem meet, respecting the
granting of such licenses, and the recalling the same,
and the amount of the sums to be demanded and taken
for every such license, and the appropriation of such
sums to His Majesty's service in the said colony, and
for preventing the retail of ale and spirituous liquors by
persons not duly licensed, and to impose such pecuniary
fines or other penalties as may be necessary for en-
forcing obedience to any such rules or ordinances as
aforesaid.

m^f^l^ 35. And be it further enacted. That it shaU and
charters for may bc lawful for His Maiestv, by charter or letters

establishing "^ . J J' J -i - I,

corporations patent uudcr the great seal, to constitute and erect sucn
ment o'f town" pcrsous as to His Majcsty shall seem meet a body or

1H24.] .'. r.EO. 4. c. 67.— REGULATION OF POLICE.

619

bodies corporate and politic, lor tlio govoriimoiit of any
town or towns situato Avitbin the said colony of New-
foundlcnd or its dependencies, and to <^rant to such
bodv or bodies politic and corporate, power to make
l)ve-lfuvs for regulating the police of any such town or
towns, and for the prevention or abatement of nui.sances
therein, and for the pr(;vention of accidents by tin; ;
and also to grant to any such body or bodies politic and
coi'jjoratc as aforesaid, the jjower to impose and levy
.such reasonable and moderate rates and assessments
upon the inhabitants and householders in such town or
towns, as may be necessary lor carrying into effect the
several i)urposes aforesaid, or any of them ; and it shall
also 1)0 lawful for His Majesty, his heirs and successors,
by any order or orders to be made by or with the advic(5
of his or their Privy Council, to dis.solve any such cor-
poration or corporations as aforesaid, upon and subj(!ct
to such conditions and regulations as may be made in
and by any such order or orders in that behalf.

36. And be it further enacted, That this Act shall ^'j

continue and be in force for live years from the passing
thereof, and no longer.

5 GEO. 4. c. 68.
Was an Act passed to repeal the 57 Geo. 3. c. 51.,
rpQ;ulating the celebration of marriages in Newfound-
land, and making further provision for the celebration
of marriages therein. This Act Avas continued by
2 & 3 Will. 4. (1832) c. 78, until repealed, &c. by
the Government of Newfoundland [see post, p. 654, and
C. S. Newfoundland (1872) c. 105]. Now S. L. R.
(1873), 36 &37 Vict. c. 91. repeals 6 Geo. 4. c. 68. sec. 1
to word " repealed," and sec. 2 to end of the Act.

lltlllllMIII'C

AH.

6 GEO. 4. (1825) c. 59.

Sec. 9. Prom " and so much " to the end of that sec-
tion repealed by S. L. R. (1874), 37 & 38 Vict. c. 35.

'■r

im\

i ;

050 0 OEO. 4. V. 30.— FEUDALITY & EXTINCTION, [ih25

[See ante, 49 Crco. JJ. c. 27. J Tho whol(> A( 1 r('i)(>alo{l
except sec. i), l).v 8. L. U. (1888, No. 2), 51 & 52 Vict!
c. 57.

This was "An Act to provide for the oxdnctioii of
feudal and scignioml rights and hardens on lan<l hold
a titre de fii^f and a titro dc cens, in the province of
Lower Canada, and for the gradual conversion of
those tenures into the tenure of hva and common
socage," &c.

The Act, after reciting 3 Geo. 4. c. 119., an Act for
regulating the trade of Lotrer and TJppo' Co/odo, and
containing certain j)r()visions for the change of tlio
tenure of hinds h(»l(l in fief and seigniory and also
of lands lichl at cens (;t rentes in the censivo of Ills
Majesty, continued : And Avhereas the said provisions,
in so far as they relate to the change of tenure of lands
in fief and seigniory, cannot, in the province of Lower
Canada, receive execution where such lands, &c., have
under grants of the seigniors, hecome the property of
persons Avho hold the same a titre de fief, in arriere fief,
or h titre de cens ; and further provision is necessary.
The Act then enacted, that whenever any person or per.
sons holding of His Majesty, as i)roprietor or proprietors,
any fief or seigniory in the said province of Lower
Canada, and having legally the power of alienating the
same, in which fief or seigniory lands have hccn granted
and are held a titre de fief, in arriere fief, or a titre de
cens, shall, hy petition to the King, through the Cover-
nor, Lieutenant-Governor, or person administering the
government of the said province, apply for a commuta-
tion of, and release from, the droit de quint, the droit
de relief, or other feudal burdens due to His Majesty on
such fief or seigniory, and shall surrender into the hands
of His Majesty, his heirs or successors, all such parts
and parcels of such fief or seigniory as shall remain and
be in his possession ungranted, and shall not he held as
aforesaid a titre de fief, in arriere fief, or a titre de cens,
it shall and may be lawful for His Majesty, or for such

(i GKO. i. v. M— FEUDALITY & KXTINCTION. 051

(lovcrnor, &c., in ])ui'siuu\co oF llis Majesty's instruc-
tions transmitted throuf,'li on(5 of his principal Secro-
tarios of State, by Jtnd with the advice of the executive
council of tin; said province, to commute the droit do
(iiiint, the droit do relief, and all other feudal rights and
Inirdons due to His Majesty upon or in respect of such
fief or seigniory, for such sum of m<)n<>y or consideration,
and upon such terms and conditions, as to His Majesty,
or to such Governor, &c. shall appear expedient ; and
thereupon to release the person, &c. so ajjplying, his, &c.,
heirs and assigns, and all and every the lands comjjrised
in such fief or seigniory from the said droit de quint,
droit do relief, and all other feudal hurdens due or to
grow due thereupon to His Majesty, &c., and cause a
fresh grant to he made to the person, &c. so applying of
all such parts and ])arcels of such fief or seigniory as
shall as aforesaid remain and he in his, &c. possession
ungrantod, and Avhich shall not he held k titre de fief, in
arriere fief, as aforesaid, or a titre de cens, to he hence-
forth holden in free and common socage {see sec. IS
of 31 Geo. 3. c. 31.) in like manner as lands are noAV
holden in free and common socage in England, without
it lieing necessary for the validity of such grant that
any allotment or appropriation of lands for the sup-
port, &c. of a Protestant clergy should he therein made.
Sec. 2 provided that where such fresh grant was made
nothing was to take away the feudal, seigniory rights,
and other rights, of the seignior or person in whose
favour such grants shall he made upon or in respect of
all lands held of him a titre de cens, &c., until a com-
mutation release or extinguishment thereof shall have
been ohtained in the manner herein-after mentioned.
By sec. 8, persons holding lands in fief and obtaining a
commutation were bound to grant like commutation to
those holding under them, for such price or indemnity
as should he fixed by experts. Py sec. 4 this latter
right might be enforced in a court of law.

By sec. 5, commutation having been voluntarily agreed
upou or awarded by a court of law, all feudal rights

\ I

%'\

ijll

I !

\, llMf

652

« GEO. 4. c. 59.- COMMON SOCAGE.

[1825.

and hurdens to cease upon lands for which tho same
shall have heen agreed upon or granted, and the tenurp
of the lands thenceforth be converted into free and
common soaige. By sec. 6, nothing in the Act was to
he a discharge of arrears, or deprive the seignior to
Avhom such arrears, lods et ventes, or Eights, shall bo
due, of his right to recover the same.

By sec. 7, persons applying for commutation or oxtin-
guishment of feudal rights in resjjcct of lauds hold of
the Crown, or as an arriere fief, puhlic advertisement for
three months in the Quebec Gazette and two other news-
papers published in Montreal and Quebec resj)octivcly,
giving notice to mortgagees and other incumbrancers,
whose consent, if any, must be shown. By sec. 8 it was
enacted that all lands previously granted by His Majesty,
&c., or which might hereafter be so granted by the same,
in free and common socage, may and shall be by such
grantees, their heirs and assigns, held, sold, and con-
veyed, &c., and may pass by descent, under such rules
and restrictions as are by the lawof JiV/^/ftwr/estahlished
and in force Avith reference to the grant, sale, conveyance,
and descent of lands held by the like tenure therein
situate, or to the doAver or other rights of married
AA'omen in such lands, and not otherwise. Provided no-
tiling Avas to prevent His Majesty, with the advice, kc. of
the Legislative Council and Assembly of the province of
Lower Canada, from enacting any laws for tho lietter
adapting the rules of the law of Eriyland to the local
circujnstiinces and condition of the said province. [For
sec. 9 see ante, p. 596, 49 Geo. 3. c. 27.]

By sec. 10, courts of escheat might be established in
Loioer Catiada to try forfeitures of uncultivated lands,
and new grants of escheated lands made. By sec. 11,
notice of inquiry as to escheat was to be advertised,
Parties interested to appear, and judgment of the court
was to be final. By sec. 12, parts of the clergy rcserAes
necessary for securing and quieting the title of any
person to lands claimed by occupancy, lawful prescrip-
tiou, or by doubtful titles, or convenient for the carry-

TTWI

IH27.]

7 & 8 GEO. 4. c. 62.— CIVIL GOV. CHARGES.

653

intr on of any pu])lic Iniilding or works, or for more
effectual settlement of any district, it was lawful
for the Bishop of Quebec, on behalf of the Protestant
clergy, and on requisition of the Governor, &c., by deed,
to convey the l^-nds comprised in such requisition in
exchange for other lands situated in the province.

6 GEO. 4. (1825) c. 75.

This Act established the Canada Company for, among
other tilings, clearing and cultivating the " Cro>vn
reserves" and parts of the " clergy reserves."

This Act Avas amended by 9 Geo. 4. (1828) c. 51., and
bv 19 & 20 Vict. (1856) c. 23. granted additional powers
to the Company, with the power of Avinding up by
special resolutions.

7 & 8 GEO. 1. (1827) c. 62.

See 3 & t Vict. c. 78. and 16 & 17 Vict. c. 21., post,
repealed 1)y S. L. E. Act, 1874, 37 & 38 Vict. c. 35.

This Act recited 31 Geo. 3. c. 31. [seei^cQ. 36 of that
Act, (tnte\ and then goes on to give the Governor, &c. of
the said provinces, or either of them, w^ith the consent
of the Executive Council, power to sell and convey in
fee simple, or for any less estate, a part of the said clergy
reserves in each of the provinces, not exceeding in
either province one-fourth, the quantity to be sold in
one year not to exceed 100,000 acres, and the money
received for this land was to be handed over to His
Majesty's reveiuie, to be invested in the public funds
of the United Kingdom and Ireland. Provided also
that the dividends ai'ising from such funds so purchased
should he applied for the improv(!ment of the remain-
mg part of the clergy reserves, or otherwise, for the
purposes for which the said lands were so reserved as
aforesaid, and for no other purpose whatsoever except
the expenses of sale.

By clause 2, the Governor may grant or accept lands
in exchange for clergy reserve lands, [^See above,
6 Geo. 4. c. 59. s. 2.]

:' ' ■ ■.

; a

!•! '\\

654

1 VICT. c. 9.— SUSPENSION OF GOV.

[1S37.

1 & 2 Will, k (1831) c. 23. (Civil Govornmont
Charges). This Act was repealed by 3 & i Vict. c. 35

It was an Act amending 14 Geo. 3. c. 88., and "■ivm
power to the provinces of Tipper and Lower Canada bv
any Acts passed for that purpose to appropriate, in sucii
manner and to such purposes as to them ro.spectivelv
appeared meet, the moneys produced from the dutios
raised under 14 Geo. 3. c. 88. s. 1., except .so favastlio
charges of raising and collecting the same.

2 & 3 WILL. 4. (1832) c. 78.

Sec. 2 was repealed by S. L. R. Act (187 1), 37 & 38
Vict. c. 35.

The Act continued in force 5 Geo. 4. c. 67., and
5 Geo. 4. c. 68., until the same shall he repealed, altcml,
or amended, hy any Act or Acts M'hich may for that
purpose be made by His Majesty, with the advice and
consent of any house or houses of General Assembly
of Newfoundland. \_See nowC. S. Newfoundland (1872)
c. 105.]

By sec. 2, all duties levied within the colony were to
be appropriated in such manner as His Majesty, with
the advice and consent of the House of General As-
sembly, should direct. But of these duties an annual
sum not (exceeding £6,550 was to be set apart for tho
maintenance of the Governor, the Judges, Attorney.
Geiun-al, and Colonial Secretary.

1 VICT. (1837) c. 9.
Repealed by 3 & 4 Vict. c. 35. s. 2.

.An Act to make temporary Provision for the
Government of Lower Canada. [10 Fel>. 1838.

WHEREAS in the present state of the province of
Lower Canada the House of Assembly of the
said province, constituted under the Act passed in the
thirty.first year of His Majesty King George the Third,

1837.]

1 VICT. c. 9 —SPECIAL COUNCIL.

655

intituled, an Act to repeal certain parts of an Act passed s' Geo. 3.
ill the fourteenth year of His Majesty's reign, intituled,
" An Act for making more effectual provision for the
Government of the Province of Quebec m North America,''*
and to make further provision for the government of the
said province, cannot be called together without serious
detriment to the interests of the said province, by reason
whereof the government of the said province cannot be
(lulv administered according to the provisions of the
said Act: And Avhereas it is expedient to make tem-
jwrary provision for the government of Lower Canada,
in order that Parliament may be enabled, after mature
(lelil)eration, to make permanent arrangements for the
constitution and government of the said province, upon
such a basis as may best secure the rights and liberties
and promote the interests of all classes of Her Majesty's
sulyjects in the said province : Be it therefore enacted
l)y the Queen's most Excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Tem-
poral, and Commons, in this present Parliament assem-
bled, and by the authority of the same, That from the The powers of
proclamation of this Act in the said province as herein- Logmioture of
after provided, until the first day of November in the J;,"^nS'^''
year one thousand eight hundred and forty, so much of
the said Act of the thirty-first year of King George the
Third, and of any other Act or Acts of Parliament, as
constitutes or provides for the constitution or CfiUing of
a Legislative Council or Legislative Assembly for the
province of Lower Canada, or as confers any powers or
functions upon the said Legislative Council and Legis-
lative Assembly, or either of those bodies, shall cease
and 1)6 of no force.

2. And 1)0 it enacted, That it shall be laAvful for Her Her Mujesty
Majesty, by any commission or commissions to be from "peciaUoinci'i
time to time issued under the great seal of the United o^l^w*^'"
Kingdom, or by any instructions under Her Majesty's Canada.
signet and sign manual, and with the advice of her
Privy Council, to constitute a special council for the

I ':

1 '

i i

■ i

iiii.

056

1 VTCT. c. n.-SANOTION OF LAWS.

[1837.

^[t'llllK'l'S 111'

till' comicil to

tllko III! until.

afl'airsof Lower Cat/ruht, and for tliat purpose toaijijoint
or autlioriijo the (Jovornor of tlio province of Loircr
Canada to appoint such and so many s])('cial coimcillois
as to Ilor Majesty shall sooin nioct, and to make .sucli
provision as to Hor Majesty shall soem meet loi- the
ronioval, suspcMision, or rcsij^'nation of all or any such
councillors : Provided always, that no meinher of the
said special council sliall he i)ermitted to sit or Jo vote
therein until h(» shall have laken aiul suhscrilxMl Ijol'oir
the (Jovernor of the ])r<)vinc(^ of Lower iUiiimUi, or
hefore scmie p«M'son authorized hy the said Governor to
administer such oath, the sani(> oath which is now re-
quired to he taken hy the uKMuhers of the Lei;islativ(>
Council and Assomhly hefore sitting or voting' therein
respectively.

3. And he it enacted, That from and after such pro-
clamation as aforesaid, and until the said tirst day of
Novemher in the year one thou.sand eight hunth'cd and
forty, it shall he lawful for (!ie Governor of the province
of Lower Canada, with tlie advice and consent of the
majority of the said council h)rs present at a nuH'lini,' or

meetings to he for that purpose from time to time; con-
vened hy the Governor of the said province, to make
such laws or ordinances for the peace, welfare^ and j^ood
governnient of the said province of Lower Caiunla a.s
the legislature of 7yO/o^'r Canada as now consli(ut(>(l is
empowered to niake ; and that all hiws or oi'diuances so
made, suhject to the provisions herein-after contained
for disallowance thereof hy Her Majesty, shall Innc the
like force and elfect as law s passcxl hefon? the ])assiii|jr of
this Act hy the Legislativ*' Council and Assembly of
the said province of Loirer Camula, and assented to hy
Her Maiestv, or in Her Maiestv's name hv the Governor

Such laws to of tjie said province: Provided always, that mo sucii

be proposal by ^ * ,.

the Governor, law or Ordinance shall ho made unless the same shall
have been first proposed hy the said Governor for adoii-
tion hv the council, nor unless the said Governor and
five at least of the said cimncillors shall he actually

Tho Oovt'vimr
anil I'niiiu'il
may iii.iki'
laws in- ofiii-
iiaiu'i's tor till'

gOVl'I'llMll'llI (if

Lowoi' t'.iiiaila.

im.]

I VIOT. c. f> — ALTERTNO LAWS

nroscnt whon such law or ordinanco shall ho mado :

Provided also, that no laAV or ordinanco so mado shall i'i'"it.ii'B their

continue in force h(;yond tlu; first day of Novonilxn" in

the year ono thousand oight hundnnl and 1'orty-two,

unless continued hy comp(;tont authority: Provided r'""^'^"')'* '"

also, that it shall not he lawful hy any such law or laxus.

ordinance to iniposcj any tax, duty, rat(5, or impost

save only in so far as any Uix, duty, rat(;, or impost,

which at tlu5 passinj^ of this Act is payahlo within the

'inid in'ovinco mav l)(^ thorohv continuod : Provided also, Ijiwh or ordi-

"^ " niiiiecis not to

that it shall not l)o lawful, hy any sucli law or ordmance, affect the
to alter in any rosp(;ct the; laAV now existing in the said rcsnoct'fng^''
[U'ovince r(\s])octinjj the constitution or compositi<m of ulJfyiion^&c.
the Lejjjishitivo Assemhly thereof, or respectiuf^ tli<? rifi^ht
of any ptM-son to vote at the (deletion of any mcnnhor of
the Slid Assemldy, or respectinj^ tlu; qualifications of
Mich voters, or respecting the division of the said j)rovince
into counties, cities, and towns for the purpose of such
elections ; nor shall it he lawful hy any such law or
()nlinanc(! to repeal, suspend, or alter any provision of
any Act of the Parliament of Great Britain, or of the
Pavlianient of the United Kingdom, or of any Act of the
legislature! of Lower Canada as now constituted, repeal-
iu!^ or altering any such Act of Parliameiit.

4. Provided ahvavs, and he it enacted. That it shall N''.''"^'"-,

• ' ' oriliimiico to

not he hiAvful hy any such law or ordinance to appro- iippropiinte
pviate any moneys which now are or which shall here- imiidiorre-
iifter l)e in the hands of the Receiver-General of the }'h? slim ."f
said province of Lower Canada towards the repayment f"2.ico.un.

i y <i less on cirtifi-

rtf any sum or sums of money which shall have hcen ciitoofCom-

1 (»i niiiip niissioncrs of

issued out 01 the sum of one hundred and lorty-two ironsury ;
thousand one hundred and sixty pounds, fourteen
shillings, and sixpence, granted to Her Majesty hy an
Act passed in i\\{\ last session of Parliament for advances
on account of charges for the administration of justice
and of the civil government of the provinc(! of Lower
Canada, unless upon a certificate from three or more of
the Commissioners of Her Majesty's Treasury, setting

S iUO. T T

nor to any
amount ex-
ceeding the
iippropriation
of 1832.

668

1 VICT. c. 9.— DISALLOWING LAWS.

[\m.

forth tlie several sums which shall have 1)een so advanced
for any of the purposes aforesaid : Provided also, that
exclusive of any such repayment as afoiesaid, no appro-
priation to he made hy any such law or ordinance of the
moneys aforesaid in respect of the puhlic service for any
one year shall exceed the total amount of the sums
appropriated hy law within the said province tor the
puhlic service tiioreof for the year one thousand ei»ht
hundred and thirty-two,

Laws or ordi-
nances may Ix)
disallowed by
Her Majesty
in Council.

5. And he it enacted, That the Governor of the said
province is hereby required hy the first convenient
opportunity to transmit to one of Her Majesty's Piin.
cip'il Secretaries of State an authentic copy of every law
0 , ,tiance made under the authority of this Act; and
^'u i vtiall he lawful, at any time within two years
after such law or ordinance shall have heen so received
by si""h S( c'^+ary of State, for Her Majesty, her heirs or
successors, by her or their order in council, to dcelaio
her or their disallowance of such law or ordinance ; and
that such disallowance, together with a certificate under
the hand and seal of such Secretary of State, testifying
the day on which such law or ordinance was received as
aforesaid, being signified by such Governor by procla-
mation within the said province, shall make void ml
annul the same from and after the date of snch signi-
fication.

This Act not
to affect laws,
&c., now in
force, &c.

6. And be it enacted. That nothing herein contained
shall be taken to affect or invalidate any law, statute, or
ordinance now in force within the said province of
Loicer Canada, or in any part thereof, except in so far
as the same is repugnant to this Act.

Proclamation
of this Act.

7. And be it enacted. That this Act shall be jiroclairaed
by the Governor of the said province of Lower Cmmh
within the said province, and shall commence and take
effect within the said province from the proclamation
thereof.

1839] 2 & 3 VICT. o. 53.— TEMPORARY GOVERNMENT. 659

8. And Iw it enacted, That for the purposes of this P^Jvernor"
Act any person authorized to execute the commission of defined.
Governor of tlie province of Lower Canada shall be
taken to be the Governor thereof.

9 And 1)0 it enacted, That this Act may be altered or Act may be

-1 • 1 j_ • altered, &e.

repealed by any Act to m passed m the present session
of Parliament.

2 & 3 VICT. (1839) c. 53.
(Eepealed by 3 & 1 Vict. c. 36. s. 2.)

An Act to amend an Act of the last Session of
Parliament for making temporary Provision for
the Government of Lower Canada,

[17 Aiig. 1839.]

WHEREAS an Act was passed in the thirty-first
year of the reign of His Majesty King George the
Third, intituled " An Act to Repeal certain parts of an
Act passed in the fourteenth year of His Majesty's reign,
intituled ' An Act for making more Effectual Provision 3i Geo. 3.
for the Government of the Province of Quebec in North
America,'' " and to make further provision for the govern-
ment of tlie said province, whereby, among other things,
it was enacted, that there should be within each of the
provinces of Tipper Canada and Loxoer Canada respec-
tively a Legislative Council and an Assembly, to be
constituted in manner therein descrilied, and with such
powers and authorities as therein mentioned; And
whereas an Act was passed in the last session of Parlia-
ment, intituled "An Act to make Temporary Provision i&2Viet.c.9.
for the Government of Lower Canada,''^ where])y i1: was
enacted that from the proclamation of the Act until
the first day of November one thousand eight hundred
and forty so much of the said Act of the thirty-first year
of the reign of His Majesty King George the Third, and
of any other Act or Acts of Parliament, as provides for
the constitution or cjilling of a Legislative Council or As-

i I

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T T 2

i i

^^ i

660

2 & 3 VICT. c. 63.— SPECIAL COUNCIL.

[1R39.

The special
council to con-
sist of not less
than twenty
members, and
no business to
bo transucted
unless eleven
be present.

Repeal of
provision of
1 & 2 Vict.
c. 9. preventing
the milking of
permanent
laws ; but all
permanent laws
to be laid for
thirty days
before Parlia-
ment previous
to being con-
firmed.

■ili ■ ! 'i

semWy for the province of Lower Canada, or confers any
powers or functions upon them or either of them, should
cease ; and by the said Act now in recital provision is
made in the meantime for the appointment l)y Her
Majesty of a special council for the aifairs ol' Lower
Canada, and for the making of laws or ordinances for
the government of the said province by the Governor
thereof, with the advice and consent of the niajoritv of
the councillors jjresent at any meeting of the council :
And whereas it is expedient that some of tlic provi-
sions contained in the said lastly-recited Act should be
altered : Be it therefore enacted by the Queen's most
Excellpnt Majesty, by and with the advice and consent
of the Lords Spiritual and Temporal, and Commons, in
this present Parliament assembled, and l)y the authority
of the same, that the number of councillors forming the
special council in manner provided by the said Act
passed in the last session of Fai-liament shall not l)e
less than twenty, and that no business shall bo trans-
acted at any meeting of the said special council at
which there are not present at least eleven councillors.

2. And be it enacted. That from and immediately
after the passing of this Act so much of the said recited
Act passed in the last session of Parliament as jjiovides
that no law or ordinance made by the Governor of the
said province of Lower Canada, with such advice and
consent as therein mentioned, shall continue in force
beyond the first day of November one thousand eight
hundred and forty-two, unless continued l)y competent
authority, shall be and the same is herel)y repealed;
Provided always, that every law or ordinance which
by the terms and provisions thereof shall be made to
continue in force after the said first day of November
one thousand eight hundred and forty-two shall be laid
before both houses of Parliament within thirty days
after a copy thereof shall be received by one of Her
Majesty's principal Secretaries of State, under the pro-
visions of the said Act of the last session of Parliament,

nr«a

I » 1 ■!

: f ;

1839.]

2 & 3 VICT. c. 53.— TAXES & MUNICIPALITY . 661

if Parliament shall be then sittin», or otlierwise within
tliiitv (lays after the then next meeting of Parliament ;
iiud no such law or ordinance shall be confirmed or de-
clared to be left to its operation by Her Majesty until
such law or ordinance shall first have lieen laid for
thirty days before both houses of Parliament, or in
case either house of Parliament shall, within the said
thirty days, address Her Majesty to disallow any such
law or ordinance.

3. And be it enacted, That from and immediately after ^^^p''."! "f'^*'

... provision of

the passini? of this Act so much of the said recited Act i&2Vict.c. o.

1 ■ 1 I J • p i-k T J • 1 >i J ri'oliiliiting

passed in tlie last session oi Parliament as provides that taxation; but
it shall not be lawful, by any such law or ordinance as ^ ievld'cxcept
therein mentioned, to impose any tax, duty, rate, or im- ^^j.^"|^',JJj
post, save only in so far as any tax, duty, rate, or impost "'jfC'; of

, . , , . 1. ji.r 11 'ji'ji municipal

which at the passing oi tjiat Act Mas payable withm the government
said province of Loiver Canada might be continued, "ot t*" be ap-^^
shall be and the same is hereby repealed : Provided ^"^Xnment^
always, that it shall not be lawful for the said Governor,
with such advice and consent as aforesaid, to make any
law or ordinance imposing or authorizing the imposition
of any new tax, duty, rate, or impost, except for carry-
ing into effect local improvements within the said pro-
vince of Loicer Canada, or any district or other local
division thereof, or for the establishment or mainten-
ance of police, or other objects of municipal govern-
ment, within any city or town or district or other local
division of the said province: Provided also, that in
every law or ordinance imposing or authorizing the im-
position of any such new tax, duty, rate, or impost,
provision shall be made for the levying, receipt, and
appropriation thereof by such person or jiersons as shall
be thereby appointed or designated for that purpose,
hut that no such new tax, rate, duty, or impost shall be
levied by or made payable to the Receiver-General or
any other pubhc officer employed in the receipt of Her
Majesty's ordinary revenue in the said province; nor
shall any such law or ordinance as aforesaid provide for

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662 2 & 3 VICT. c. 35.— REPEALING BRIT. ACTS.

[iH3n.

the appropriation of any such new tax, duty, rate, or
impost by the said Governor, either witli or without the
advice of the Executive Council of the said province
or by the Commissioners of Her Majesty's Treasury,
or by any other officer of the Crown employed in the
receipt of Her Majesty's ordinary revenue.

or the law of
tenure

Repeal of th« 4 x^([ |3e it enacted, That from and after the pa«.

provision of 1 ^

1 & 2 Vict. c. 9. ing of this Act so much of the said recited Act passed
aitemtion of '^ iu tlic last scssiou of Parliament as provides that it shall
mentf biTno ^^^ ^^6 lawful for any such law or ordinance as tlierciii
afficti'n'"'thr^" mentioned to repeal, suspend, or alter any provision of
temporal or any Act of the Parliament of Great Britain, or of tlio
of ecclesiastics Parliament of the United Kingdom, or of any Act of
the Legislature of Lower Canada, as then constituted,
repealing or altering any such Act of Parliament, shall
be and the same is hereby repealed : Provided always,
that it shall not be lawful for the said Governor, with
such advice and consent as aforesaid, to make any law
or ordinance altering or affecting the temporal or spi-
ritual rights of the clergy of the United Church of
England and Ireland, or of the ministers of any other
religious communion, or altering or affecting the tenure
of land within the said province of Lower Canada, or
any part thereof, save so far as the tenure of land may
be altered or aflFected by any law or ordinance which
may be made by the said Governor, with such advice
and consent as aforesaid, to provide for the extinction of
any seignorial rights and dues now vested in or claimed
by the ecclesiastics of the seminary of Saint Sulpice of
Montreal within the said province, or to provide for the
extinction of any seignorial rights and dues vested in
or claimed by any other person or persons, or body or
bodies corporate or politic, within the island of llontml,
or the island called lie Jems, within the said province,

bfpuktshed in ^' -^^^ ^^ ^* enacted, That every law or ordinance to
Gazette be- he madc by the said Governor, with such advice and
consent as aforesaid, shall, before the passing or enact-

fore passing.

1840] 3 & 4 VICT. c. 36.— RIGHTS AND LIBERTIES. 663

ment thereof, bo published at length in the public
Gazette of the said province of Lower Canada.

6. And be it enacted, That for the purposes of this f£"|J.^^i;'" °''
Act the person authorized to execute the commission of Ooveinor.
Governor of the province of Lower Canada shall be

taken to be the Governor thereof.

7. ^\jul be it enacted, That this Act may be amended '^^' '""y ''«

'• ' *' amended.

or repealed by any Act to be passed during the present
session of Parliament.

3 & 1 VICT. (1840) c. 35.

Repealed, except sees. 28, 29, 60, by ^ L. R. No. 2
(1874), 37 & 38 Vict. c. 96. The preamble and sec. 60
to the words " enacted that " repealed by S. L. R. No. 2,
Part 2 (1890), 53 & 54 Vict. c. 51. See two previous
Acts, and 17 & 18 Vict. (1854) c. 118.

An Act to re-unite the Provinces of Upper and
Lower Canada, and for the Government of
Canada. [23 Jidy 1840.]

WHEREAS it is necessary that provision be made
for the good government of the provinces of Tipper
Canada and Lower Canada, in such manner as may
secure the rights and liberties and promote the interests
of all classes of Her Majesty's subjects within the
same : x\.nd whereas to this end it is expedient that the
said provinces be re-united and form one province for
the purposes of executive government and legislation :
Be it therefore enacted by the Queen's most Excellent
Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this
present Parhament assembled, and by the authority
of the same, That it shall be lawful for Her Majesty, }5^'>™*'°" "'
with the advice of her Privy Council, to declare, or to
authorize the Governor-General of the said two pro-
vinces of Upper and Lower Canada to declare, by pro-
clamation, that the said provinces, upon, from, and after

!'!

'«

mM-

■ 'I

661

3 & 4 VICT. c. 36.— AVELFARE AND GOOD GOV. [Ir

10.

4\\'

(IH

'■\\

. s n

a certain clay in such proclamation to ho appointed
which (lay shall he within lil'teen calendar mouths uoxt
after the passing of this Act, shall foi-m and he uuo pio.
vince, under the name of the province of Coiunlu, and
thenceforth the said provinces shall constitute and h
one province, under the name aforesaid, upon, i'lom
and after the day so appointed as aforesaid.

Repeal of Acts. 2. And bo it cnactcd, That so much of an Act passed
in the; session of Parliament held in the thirty-first year

3i^Geo. 3. Qf ^Ijp reign of King George the Third, intituled "An
Act to repeal certain Parts of an Act passed in the
Fourteenth Year of His Majesty's Eeign, intituled 'An
Act for making more effectual Provision for theCovein-
ment of the Province of Quebec in North Amci-im,' and
to malce further Provision for the Government of tlie
said Province," as provides for constituting and compos-
ing a L(^gislative Council and Assembly within each of the
said provinces resi)ectivcly, and for the making of laus;
and also the whole of an Act j)asscd in the session of Parlia-
ment held in the first and second years of the reign of Her

i&2Viet.c. 0. pre.sent Majesty, intituled " An Act to make temporary
Provision for the Government of Lower Canada ; " and
also the whole of an Act passed in the session of Parlia-
ment held in the second and third years of the reign of
Her present Majesty, intituled " An Act to amend an Act
of the last session of Parliament, for making temporary
Provision for the Government of Lower Canada " ; and
also the whole of an Act passed in the session of Parlia-
ment held in the first and second years of the reign of
His late Majesty King William the Fourth, intituled
" An Act to amend an Act of the Fourteenth Year of
His Majesty King George the Third, for establishing a
Fund towards defraying the Charges of the Administra-
tion of Justice and the Support of Civil Government in
the Province of Quebec in America,''^ shall continue and
remain in force until the day on which it shall be de-
clared, by proclamation as aforesaid, that the said two
provinces shall constitute and be one province as afore-

2 & 3 Vii't.
c. 53.

1 & 2 Will. 4.
c. 23.

U Geo. 3.
c. 88.

r: 1

<J<)V. [IHIO.

appointed,
iiouths next

1)0 Olio plQ.

■ oitada, and

iito and bo

upon, from,

Act passed
ty-fii'st year
titulod "All
issod in tlir
ititulod 'All
tlic Govern.
mci'/co,' and
inont of the
and compos-
11 oacli of tile
iug of laws ;
ioiiof Paiiia-
reign of Her
e temporary
uackt; " and
)n of Parlia-
tlio reign of
Qiond an Act
Lg temporary
nacla" ; and
)n of Parlia-
the reign of
•til, intituled
mth Year of
itablishing a
Aclministra-
ivcrnment m
Bontiuue and
shall bade-
i,he said two
nee as afore-

1H40.] 3&4VICT. C-. 3,).— rOWKRS OK LEOISLATURE. C65

said, and shall be repealed on, from, and after such day :
Provided always, that the repeal of the said several Acts
of Parliament and parts of Acts of Parliament shall not
be hold to revive or pfivc any force or effect to any
eimclniont which has by the said Acts, or any of them,
been rciiealed or determined.

3 And he it enacted, That from and after the re- Compusiiiou

, , 1 11 1 •l^ • 1 1111(1 powers of

union of the said two provinces there shall bo within the L<gisiiitun;.
province of Canada one Legislative Council and one
Assembly, to be severally constituted and composed in
the manner herciu-after prescribed, which j^liail be culled
"The Legislative Council and Assembly of C'naila";
and that, within the province of (tnado, Her Majesty
shall have power, by and with the advice and c(jnsent
of the said Legislative Council and Assembly, to make
laws for the peace, welfare, and good government of the
province of Canada, such laws not being repugnant to
this Act, or to such parts of the said Act passed in the
thirty-first year of the reign of His said late Majesty as
are not hereby repealed, or to any Act of Parliament
made or to be made, and not hereby repealed, which does
or shall, by express enactment or by necessary intend-
ment, extend to the provinces of Tipper and Lower
Canada, or to either of them, or to the province of
Canada ; and that all such laws being jiassed by the
said Legislative Council and Assembly, and assented to
by Her Majesty, or assented to in Her Majesty's name
by the Governor of the province of Canada, shall be
valid and binding to all intents and purposes within the
province of Canada.

4. And be it enacted, That for the purpose of com- Appointment
posing the Legislative Council of the province of Canada Councillors,
it shall be lawful for Her Majesty, before the time to
be appointed for the first meeting of the said Legisla-
tive Council and Assembly, by an instrument under the
sign manual, to authorize the Governor, in Her Ma-
jesty's name, by an instrument under the great seal of

1 !

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666

3 & 4 VICT. c. 35— LEGISLATORS.

ii'f!

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QiiiiliHoaticiij
111' lA'fiisliil ivi'
("DUiioillor.".

Tciiure of office
of Couiipillor.

Kc»if;uatioii of

Lr/ii.-l.-itivi'

Councillor.

[1810.

the said province, to summon to the said Loi>islativ(>
Council of the said province such persons, Ijciut^ not
feAver than twenty, as ITer Majesty shall think fit-
and that it shall also he lawful for Her Maji^sty from
time to time to authorize the Governor in like niannor
to summon to the said Lej^islative Council such other
person or persons as Her Majesty shall think tit, and
that evory person who shall he so summoned shall
tlierehy hecome a niemher of the Lei^islative Council
of the province of Canada : Provided always, that no
person shall he siunmoned to the said Legislative Coun-
cil of the i)rovince of Canada Avho shall not he of the
full age of twenty-one years, and a natural-born
sii])ject of Her ^lajesty, or a subject of Hcu- Majesty
naturalized hy Act of the Parliament of Great Jirilain,
or hy Act of the Parliament of the United Kingdom of
Great Britain and Ireland, or by an Act of the Lesris-
lature of either of the provinces of Upper or Lower
Canada, or by an Act of the Legislature of the pro-
vince of Canada.

5. -Ind be it enacted, That every member of tbo
Legislative Council of the province of Canada shall
hold his seat therein for the term of his life, but subject
nevertheless to the provisions herein-after contained lor
vacating the same.

6. And be it enacted. That it shall be lawfiU for any
member of the Legislative Council of the province of

Canada to

resign

his seat in the said Legislative

Viicatiiip scut
by absence.

Council, and ui)on such resignation the seat of sucli
Legislative Councillor shall become vacant.

7. And be it enacted, That if any Legislative Coun-
cillor of the province of Canada shall for two successive
sessions of the Legislature of the said province fail tn
give his attendance in the said Legislative Council,
without the permission of Her Majesty or of the
Governor of the said province, signified by the said
Governor to the Legislative Council, or shall take any

Umi

itiiiil

I n im

1S40.] 3 & 4 VICT. e. 3.5.— APPEALS AS TO SEATS.

667

oath or make any declaration or acknowledgment of
allegiance, obedience, or adherence to any foreign prince
or power, or shall do, concur in, or adopt any act
Avhcrel)y he may become a subject or citizen of any
foreign stat(; or power, or whereby he may become
entitled to the rightt;, privileges, or immunities of a
subject or citizen of any foreign state or power, or shall
become bankrupt, or take the beneiit of any law
relating to insolvent debtors, or become a public
defaulter, or be attainted of treason, or be convicted of
felony or of any infamous crime, his seat in such
Council shall thereby become vacant.

8. And be it enacted. That any question which shall I'l-''! "«

... . qiioiiiiMs.

arise respecting any vacancy in the Legislative Council
of the province of Canada, on occasion of any of the
matters aforesaid, shall be; referred by the Clovernor of
the province of Canada to the said Legislative Council,
to be by the said Legislative Council heard and deter-
inined : Provided always, that it shall be lawful, either
for the person respecting whose seat such question shall
have arisen, or for Her Majesty's Attorney -General for
the said province on Her IVIajesty's behalf, to appeal
from the determination of the said Council in such case
to Her Majesty, and that the judgment of Her Majesty
given with the advice of Her Privy Coiuicil thereon
shall be final and conclusive to all intents and purjjoses.

9. And b(? it eimcted. That the Governor of the App..inimf.nt
province of Canada shall have jwwer and authority

from time to time, by an instrument imder the great
seal of the said province, tc appoint one membc^r of the
sjiid Legislative Council to be Speaker of the said Legis-
lative Council, and to remove him, and appoint another
in his stead.

10. And be it enacted. That the presence of at least Q'^um.
ten members of the said Legislative Council, including

the Speaker, shall be necessary to constitute a meeting

lor the exorcise of its powers ; and that all questions Division.

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668

3 A 4 VICT. c. 33.— CALLING ASSEMBLY.

[1H40.

Casting vote.

Con VI iking the
Assembly.

Reprc.H'ntntives
for fiich pro-
vince.

County of
Hiiltou.

County of
Northumber-

which shall aviso in the said Legislative Council shall be
decided by a majority of voices of the members present
other than the Speaker, and when the voices shall be
equal the Speaker shall have the casting vote.

11. And be it enacted, That for the purpose of eonsti.
tuting the Legislative Assembly of the province of
Canada it shall be lawful for the Governor of the said
province, within the time herein-after mentioned, and
thereafter from time to time as occasion shall i\;qiiii'e,
in Her Majesty's name, and by an instrument or
instrimients imder the great seal of the said province,
to summon and call together a Legislative Assembly in
and for the said province.

12. And be it enacted, That in the Legisktive
Assembly of the province of Canada to be constituted
as aforesaid the parts of the said ^ ^ovince which now
constitute the provinces of Lpper and Loicer Canada
resi)ectively shall, subject to the provisions herein-after
contained, be represented by an equal number of
representatives, to be elected for the places and in the
manner herein-after mentioned.

13. And be it enacted, That the county of Ealion in
the province of Upper Canada shall be divided into two
ridings, to be called respectively the East Eiding and
the West Riding ; and that the East Eiding of the said
county shall consist of the following townships, namely,
Trafalgar, Nelson, Esquesing, Nassagaicega, East
Flamhorotigh, West Flaniborough, Ering, Beverley;
and that the West Riding of the said county shall
consist of the following townships, namely, Garafraxa,
Nichol, Woolwich, Giielph, Waterloo, Wilniot, Dum-
fries, Fuslinch, Eramosa ; and that the East Riding ard
West Riding of the said county shall each be repre-
sented by one member of the Legislative Assembly of
the province of Canada.

14. And be it enacted, That the county of North-
ttmberland in the province of Upper Canada shall be

1840,]

3 & 4 VICT. p. 35— BEPRESENTATION OF U. C. 669

divided into two ridings, to be called vespectiA'ely the
North Hiding and the South Eiding ; and that the;
North Riding of the last-mentioned county shall consist
oftlic following townships, namely, 3Ionaghan, Otonahee,
Asphodel, Smith, Bouro, Bummer, Belmont, 3Iethuen,
Burleigh, Harvey, Emily, Gore, Mmismore ; and that
the South Hiding of the last-mentioned county shall
consist of the following townships, namely, Hamilton,
Riddbnand, Cramak, JInrray, Seymour, Percy; and
that the North Riding and South Riding of the last-
lupntioned coimty shall each he represented by one
ivionibov of the Legislative Assembly of the province of
Conada.

il: I

15. And he it enacted. That the county of Lincoln in ?:'""'7 "*■

•■ ^ lilllCDlll.

the province of Upper Canada shall be divided into
two ridings, to be called respectively the North Riding
and the South Riding ; and that the North Riding shall
he formed by uniting the first riding and second
riding of the said county, and the South Riding by
uniting the third riding and fourth riding of the
said county ; and that the North and South Riding of
the last-mentioned county shall each be represented by
one meml)er in the Legislative Assembly of the province
of Canada.

16. And be it enacted. That every countv and riding, *^"""': "^"""^v
other than those herein-before specified, which at the «>f Upper
time of tlie passing of this Act was by law entitled to

he represented in the Assembly of the province of
Vpper Canada, shall be represented by one member in
the Legislative Assembly of the province of Canada.

17. And be it enacted. That the city of Toronto T'wh cou-

1 11 1 1*11 slitiiuiioy of

shall b(; represented by two members, and the towns ippor cnnada.
of Kingston, Brockville, Hamilton, Cornwall, Niagara,
London, and By town, shall each be represented by one
member in the Legislative Assembly of the province of
Canada,

?ii

; 5 1

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:i =.

I '! i 1

County con-
stituency of
Lower Canadii.

1 & 2 Vict. c. 9.

Further pro-
vision as to
constituenej-
of Lower
Ciiniida.

670 3 & 4 VICT. c. 35.— REPRESENTATION OF L. C. [I840

18. And be it enacted, That every coanty which
before and at the time of the passing of the said Act
of Parliament, intituled " An Act to make temporan-
Provision for the Government of Lower Canada," was
entitled to be represented in the Assembly of the
province of Lower Canada, except the counties of
Montmorency, Orleans, V Assomption, La Chesnaye,
L'Acadie, Laprairie, Dorchester, and Beaiice, herein-
after mentioned, shall be represented by one member
in the Legislative Assembly of the province of Canada,

19. And be it enacted, That the said counties of
Mo7itmorency and Orleans shall be united into and
form one county, to be called the county of 3Iont-
morency ; and that the said counties of L'Assomptm
and La Chesnaye shall be united into and form one
county, to be called the county of Leinster ; and that
the said counties of L'Acadie and Laprairie shall l)e
united into and form one county, to be called the comity
of Huntingdon ; and that the counties of Dorchester
p/iid Beauce shall be united into and form one county,
to be called the county of Dorchester ; and that each
of the said counties of Montmorency, Leinster, Hunting-
don, and Dorchester shall be represented by one member
in the Legislative Assembly of the said province of
Canada.

Town con- 20. And be it enacted. That the cities of Quebec and

i^wer Canada. Montreal shall each be represented by two members,

and the towns of Three Rivers and Shevbrooke shall

each be represented l^y one member in the Legislative

Assembly of the province of Canada.

21. And be it enacted, That for the purpose of electing
their several representatives to the said Legislative
Assembly, the cities and towns herein-before mentioned
shall be deemed to be bounded and limited in sucli
manner as the Governor of the province of Canada,
by letters patent under the great seal of the province,
to be issued within thirty days after the union of the

Boundaries of
cities and towns
to be settled
by Governor.

1840.]

3 & 4 VICT. c. 35. -WRITS OF ELECTION.

671

said provinces of Upper Canada and Lower Canada,
shall set forth and describe; and such parts of any
such city or town (if any) which shall not he included
within the boundary of such city or town respectively
1)V such letters patent, for the purposes of this Act
sliall he taken to be a part of the adjoining county or
riding, for the purpose of lieing represented in the said
Legislative Assembly.

22. And be it enacted, That for the purpose of ^^"'^"'';^''"g
electing the members of the Legislative Assembly of

the province of Canada, it shall be lawful for the
Governor of the said province, from time to time, to
nominate proper persons to execute the office of re-
tiiwiing offic^ in each of the counties, ridings, cities,
and towns which shall be represented in the Legislative
Assembly of the province of Canada, subject never-
theless to the provisions herein-after contained.

23. And be it enacted. That no person shall be obliged T^im of offiou

, ^ i)f rotunnng

to execute the said office or returnmg officer for any "ffl.or.
longer term than one year, or oftencr than once, unless
it shall l)e at any time otherwise provided by some Act
or Acts of the Legislature of the province of Canada.

24. And be it enacted, that writs for the election of Writs of
memhers to serve in the Legislative Assembly of the
province of Canada shall be issued by the Governor of

the said province, within fourteen days after the sealing
of such instrument as aforesaid, for summoning and
calling together such Legislative Assembly; and that
such writs shall 1)e directed to the returning officers of
the said counties, riding, cities, and towns respectively ;
and that such writs shall be made returnable Avithin
fifty days at farthest from the day on Avhich they shall
bear date, unless it shall at any time be otherwise pro-
vided hy any Act of the Legislature of the said province ;
and that writs shall in like manner and form be issued
for the election of members in the case of any vacancy
which shall happen by the death or resignation of the

072

3 & 4 VICT. c. 35— T^EPT^ESENTATTON,

ris4o.

\ t

Time and jilapo
of holding
elections.

Power to niter
syMtcm of
represoMtntion.

person chosen, or by his being summoned to the Lp»is.
lative Council of the said province, or from any otlipv
legal cause ; and that such writs shall be made roturn-
able within fifty days at farthest from the day on which
they shall bear date, imless it shall be at any time
otherwise provided by any Act of the Legislature of th((
said province ; and that in any case of any such vacancy
which shall happen by the death of the person chosen,
or by reason of his being so summoned as aforesaid, the
writ lor the election of a new member shall bo issued
within six days after notice thereof shall have l)cen
delivered to or left at the office of the proper olTicor for
issuing such writs of election.

25. And be it enacted. That it shall be lawful for
the Governor of the province of Canada for the time
being to fix the time and place of holding elections of
members to serve in the Legislative vlssembly of the
said province, until otherwise provided for as herein-
after is mentioned, giving not less than eight days'
notice of such time and place.

26. And be it enacted. That it shall be lawful for the
Legislature of the province of Canada, by any Act or
Acts to be hereafter passed, to alter the divisions and
extent of the several counties, ridings, cities, and towns
which shall be represented in the Legislative Assoml)ly
of the proA'ince of Canada, and to establisli now and
other divisions of the same, and to alter the apportion-
ment of representatives to be chosen by the said
counties, ridings, cities, and towns respectively, and
make a new and different apportionment of the number
of representatives to be chosen in and for those parts or
the province of Canada wliicli now constitute the said
provinces of Up])ei' and Lower Canada respectively,
and in and for the several districts, counties, ridings,
and towns in the same, and to alter and regulate the
appointment of returning officors in and for the same,
and make provision in such manner as they may deem

iji

1840.]

3 & 4 VICT. c. 35.— RBPRESENTATION.

673

oxpodient, for the issuing and return of Avrits for the
oloction of members to serve in the said Legislative
Assembly, and the time and place of holding such
elections : Provided always, that it shall not be lawful ^''oviso.
to present to the Governor of the province of Canada
for Her Majesty's assent any Bill of the Legislative
Council and Assembly of the said province by which
the number of representatives in the Legislative
Assembly may be altered, unless the second and third
roiuUng of such Bill in the Legislative Council and the
Legislative ^Vssembly shall bavc been passed with the
concurrence of two thirds of the members for the time
being of the said Legislative Council and of two thirds
of the members for the time being of the said Legisla-
tive Assembly resi)ectively, and the assent of Her
Majesty shall not be given to any such Bill unless
addresses shall have been presented by the Legislative
Council and the Legislative Assembly respectively to the
Governor, stating that such Bill has been so passed.

27. And be it enacted, That until provisions shall The present

p 1 -r ' ^ election liiws

otherwise be made by an Act or Acts of the Legislature of the two
of the province of Canada all the laws which at the apply"imdi
time of the passing of this Act are in force in the pro- "'*'''^«'^'
viucc of I'pper Canada, and all the laws which at the
time of the passing of the said Act of Parliament,
intituled "An Act to make temporary Provision for the i&2Viet.c.9.
Government of Lower Canada,''^ were in force in the pro-
vince of Loioer Canada, relating to the qualification
and disqualification of any person to be elected or to
sit or vote as a member of the Assembly in the said
provinces respectively (except those Avliich require a
qualification of property in candidates for election, for
which provision is herein-after made), and relating to
tlie qualification and disqualification of voters at the
election of members to serve in the Assemblies of the
said provinces respectively, and to the oaths to l)e taken
hy any such voters, and to the powers and duties of
returning officers, and the proceedings at such elections,

S2340. U U

'I, i

674

3 & 4 VICT. c. 35.— QUALIPICATIOXS.

[\M(\.

Qualiticntion
of memlxjM.

Declaration of
candidiitcs for
election.

and the period during which such elections may be law.
fully continued, and relating to the trial of controverted
elections, and the proceedings incident thorc^to, and to
the vacating of seats of members, and the issuins? and
execution of new writs in case of any seat bein»
vacated otherwise than by a dissolution of the
Assembly, shall respectively be applied to (elections of
members to serve in the Legislative Assomblv of tlio
province of Canada for places situated in tbosc parts
of the province of Canada for which such laws were
passed.

28. And be it enacted, That no person sball be cap.
able of being elected a member of the Legislative
Assembly of the province of Canada who sball not be
legally or equitably seised as of freehold, for his own use
and benefit, of lands or tenements held in free and
common socage, or seised or possessed, for his own use
and benefit, of lands or tenements held in fief or in roture,
within the said province of Canada, of the value of five
hundred pounds of sterling money of Great Britain,
over and above all rents, charges, mortgages, and
incumbrances charged upon and due and payable out
of or affecting the same : and that every candidate at
such election, before he shall be capable of beins
elected, shall, if required by any other candidate, or
by any elector, or by the returning officer, make the
following declaration :

" ~W A.B. do declare and testify. That I am duly seised
-i- at law or in equity, as of freehold, for my own use
and benefit, of lands or tenements held in free and
common socage, [or duly seised possessed, for my
own use and benefit, of lands or tenements, held in fief
or in roture {as the ease may 6e)] in the province of
Canada, of the value of five hundred pounds of sterlini:
money of Great Britain, over and above all rents, mort-
gages, charges, and incumbrances charged upon or due
and payable out of or attecting the same ; and that I
have not coUusively or colourably obtained a title to

ii \

IS 10.]

3 8. 4 VICT. 0. 35— DURATION OF PARL.

675

or become possessed of the said lands and tenements,
or any part thereof, for the purpose of qualifying or
enabling me to l)e returned a member of the Legislative
Assembly of the province of Canada^

29. And be it enacted, That if any person shall Persons mak-

1 •!/! 11 1 Pill . ing false (leola-

knowingly and wilrully make a false declaration ration liable to

,. , . T/i ,. T1 i i 1 the penalties

respecting Ins qualincation as a candidate at any elec- ofpuijury.

tion as aforesaid, such person shall be deemed to be guilty

of a misdemeanor, and being thereof lawfully convicted

shall suffer the like pains and penalties as by law are

inciivrcd l»y ])ersons guilty of wilful and corrupt pei-jury

ill the place in which such false declaration shall have

been made.

30. And be it enacted, That it shall be lawful for I'lneo and times
tlie Governor of the province of Canada for the time 'r,,rnnment.
being to fix such place or places within any part of the

province of Canada, and such times for holding the first
and every other session of the Legislative Council and
Assembly of the said province as he may think fit, such
times and places to be afterwards changed or varied as
the Governor may judge advisable and most consistent
with general convenience and the public welfare, giving
sufficient notice thereof ; and also to prorogue the said
Legislative Council and Assembly from time to time,
and dissolve the same, by proclamation or otherwise,
whenever he shall deem it expedient.

3L And be it enacted. That there shall be a session Dm-ation of
of the Legislative Council and Assembly of the province
of Canada, once at least in every year, so that a period of
twelve ciilendar months shall not intervene l)etween
the last sitting of the Legislative Council and ^Vssemblv
in one session and the first sitting of the Legislative
Comicil and Assembly in the next session ; and that .

every Legislative Assembly of the said province here-
after to be summoned and chosen shall continue for four
years from the day of the return of the writs for
choosing the same, and no longer, subject nevertheless

UU 2

t .

i i

•It

',;i.

.■)

: '

W I

iii'!

I ,

Fiwt calling
togi'thor of the
Legislature.

Election of the
Speaker.

Quorum.

Division.

Casting vote.

No member to
sit or vote until
he has taken
the following
Oath of Alle-
giance,

676 3 & 4 VICT. c. 35.— ELECTION OF SPEAKEl^. [mo.

to be sooner prorogued or dissolved by the Governor of
the said province.

32. And be it enacted, That the Legislative Council
and Assembly of the province of Canada shall Ix; called
together for tlie first time at some period not later than
six calendar months after the time at which the pro.
vinces of ITpper and Lownr Canada shall hccomc
re-united as aforesaid.

33. And be it enacted, That the members of tlio
Legislative Assembly of the province of Canada shall,
upon the first assembling after every general election,
proceed forthwith to elect one of their number to ho
Speaker; and in case of his death, resignation, or
removal by a vote of the said Legislative Assembly, tho
said members shall forthwith proceed to elect another
of such members to be such Speaker ; and tho Speaker
so elected shall preside at all meetings of the said
Legislative Assembly.

34. And be it enacted, That the presence of at least
twenty members of the Legislative Assembly of the
province of Canada, including the Speaker, shall he
necessary to constitute a meeting of the said Legislative
Assembly for the exercise of its powers ; and that all
questions which shall arise in the said Assembly shall
be decided by the majority of voices of such niemhers
as shall be present, other than the Speaker, and when
the voices shall be equal the Speaker shall have the
casting voice.

35. And be it enacted, That no member, either of
the Legislative Council or of the Legislative Assembly of
the province of Canada, shall be permitted to sit or vote
therein until he shall have taken and subscribed the
following oath before the Governor of the said province,
or before some person or persons authorized by such
Governor to administer such oath ;

\m]

.1 & 4 VICT. t. 35.— ASSENT TO BtLLS.

67?

" r A.B. do sincerely promise and swear, That I will Oathof Alio-

J- be faitliful and bear triu; allegiance to Her Majesty
Queen Victoria, as lawful sovereign of the United King-
dom of Great Britain and Ireland, and of this province
of Canada, dependent on and belonging to the said
United Kingdom ; and that I will defend her to the
utmost of my power against all traitorous conspiracies
and attempts whatever which shall be made against her
person, crown, and dignity ; and that I will do my
utmost endeavour to disclose and make known to her
Majesty, her heirs and successors, all treasons and
traitorous conspiracies and attempts which I shall
know to be against her or any of them ; and all this I
do swear without any equivocation, mental evasion, or
secret reservation, and renouncing all pardons and dis-
pensations from any person or persons whatever to the
contrary. So help me God."

36. And be it enacted. That every person authorized Affirmation

. IP 1 • instead ot oath.

l)y laAv to make an affirmation mstead of taking an
oath may make such affirmation in evory case in which
an oath is herein-before required to be taken.

37. And be it enacted. That whenever any Bill Giving or with-

*' hoklnig assent

which has been passed by the Legislative Council and to buis.
Assembly of the province of Canada shall be presented
for Her Majesty's assent to the Governor of the said
province, such Governor shall declare, according to his
discretion, but subject nevertheless to the provisions con-
tained in this Act, and to such instructions as may from
time to time be given in that behalf by Her Majesty,
her heirs or successors, that he assents to such Bill in
Her Majesty's name, or that he withholds Her Majesty's
assent, or that he reserves such Bill for the signification
of Her Majesty's pleasure thereon.

38. And be it enacted, That whenever any Bill which Disallowance
shall have been presented for Her Majesty's assent to sentcd to.
the Governor of the said province of Canada shall by

such Governor have been assented to in Her Majesty's
name, such Governor shall by the first convenient

i ;'

,1 .

5 1

H lii

078 ;i & 4 VICT. c. 35.— DISALJ-OVVANCE OF BILLS.

[IH4U,

Assent to ]5ill»
reserved.

Anthiirity of
the Governor.

opportunity transmit to one of Her Majesty's pvincipal
Secretaries of State an authentic copy of such Hill so
assented to; and that it shall be lawful, iit an\ tiiiic
within two years after such Bill shall have hocii so
received hy such Secretary of State, for Her .Majt-stv
hy Order in Council, to declare her disallowance of such
Bill ; and that such disallowance, toj^etlier with a ci'vtifi.
Gate under the hand and seal of such S(?cretary of State,
certifying the day on which such Bill was received as
aforesaid, being signitied by such Governor to the
Legislative Council and Assembly of CaiKida, hy spcocli
or message to the Legislative Council and Asscmhly of
the said province, or by proclamation, shall make void
and annul the same from and after the day of such
signification.

39. And be it enacted, That no Bill Avliieli shall he
reserved for the signitiaition of Her ^lajesty's ploasiuc
thereon shall have any force or authority within the
province of Canada until the Governor of the said pro.
vincc shall signify, either by speech or mes.saj,'*' to the
Legislative Council and Assembly of the said proviiico,
or by proclamation, that such Bill has l)een laid hefoiv
Her Majesty in Council and that Her ^Eajesty has heeii
pleased to assent to the same ; and that an entry shall
be made in the journals of the said Legislative Council
of every such speech, message, or proclamation, and a
duplicate thereof, duly attested, shall be delivered to the
proper officer, to be kept among the records of the said
province ; and that no Bill which shall be so reserved as
aforesaid shall have any force or authority in the said
province unless Her Majesty's assent thereto shall have
been so signified as aforesaid within the spac<^ of tw
years from the day on which such Bill shal'
presented for Her Majesty's assent to the ( .aoras
aforesaid.

40. Provided always, and be it enacted, That nothui.
hereiu contained shall be construed to limit or restrain
the exercise of Her Majesty's prerogative iu autho-

\m] 3 4 4 VICT. 0. 3i>.— GOVERNOR & LIEUT.-GOV. 679

ri/.in!,', and that notwithstandinsf this Act, and any other
Act or Acts passed in the Parliament of Great liritnin,
or in the I'arliauiont of the United Kingdom of Great
Bi'ifain and Ire/and, or of the Legislature of the
province; of Quebec, or of the provinces of l/^pper or
Lnircr Catiadn respectively, it shall be lawful for Her
Majpsty 10 authorize the Lieutenant-Governor of the
province of Canada to exercise and execute, within
such parts of the said province as Her Majesty shall
tliink tit, notwithstanding the presence of the Gov-
ernor within the province, such of the powers, functions,
and authority, as well judicial as other, which before
and at the time of passing of this Act were and
are vested in the Governor, Lieutenant-Governor, or
person administering the government of the provinces
of Upper Canada and Loioer Canada respectively,
or of either of them, and which from and after the
said re-union of the said two provinces shall become
vested in the Governor of the province of Canada;
and to authorize the Governor of the province of Canada
to assign, depute, substitute, and appoint any person or
persons, jointly or severally, to be bis deputy or depu-
ties within any part or parts of the province of Canada,
and in that capacity to exercise, perform, and execute
durins,' the pleasure of the said Governor such of the
powers, functions, and authorities, as well judicial as
other, as before and at the time of the passing of this
Act were and are vested in the Governor, Lieutenant-
Governor, or person administering the government of
the provinces of Tipper and Lotcer Canada respectively,
and which from and after the union of the said pro-
ices shall become vested in the Governor of the
province of Canada, as the Governor of the province of
>ada shall deem to be necessary or expedient : Pro-
\ ided always, that by the appointment of a deputy or
deputies as aforesaid the power and authority of the
Governor of the province of Canada shall not be
abridged, al: red, or in any way affected otherwise
than as Ilor Majesty shall think proper to direct.

ill

U:.

680

3 & 4 VICT. c. 35.— CROWN RIGHTS.

[1840.

(!,' 1

Langunge of

legislative

records.

41. And be it enacted, That from and after tlic said
re-union of th'^ said two provinces all writs, proclama-
tions, instruments for summoning and callins: toTothor
the Legislative Council and Legislative Assembly of the
province of Canada, and for proroguing and dissolvin'r
the same, and all writs of summons and election, and
all writs and imblic instruments Avhatsocver nlatinr; to
the said Legislative Council and Legislative As.seinl)lv,
or either of them, and all returns to such writs and
instruments, and all journals, entries, and AM-ittou or
printed proceedings, of what nature soever, of the said
Legislative Coimcil and Legislative Assembly, and ot
each of them respectively, and all written or printed
proceedings and reports of committees of the sfud
LegisUtive Council and Legislative Assembly respec-
tively, shall be in the English language only : Provided
always, that this enactment shall not be construed to
prevent translated copies of any such documents heini,'
made, but no such cojjy shall be kept among the record!)
of the Legislative Council or Legislative ^Vssembly, or
be deemed in any case to have the force of au original
record.

! I,

Ecclesiastical
and Crown
rights.

14 Geo. 3.
c 83.

42. Vnd be it enacted. That whenever any Bill or
Bills shall be passed by the Legislative Ct)iincil ami
Assembly of the province of Canada, containing am
provisions to vary or repeal any of the provisions now
in force contained in an Act ot the Parliament of Gmi\
Britain i)assed in the s :/urteentli year of the reign of
His late Majesty King George the Third, intitided " An
Act for making more effectual Provision for tlie Govern-
ment of the Province of Quebec in North America"
or in the aforesaid Acts of Parliament passed in the
thirty-first year of the same re -^n, resi)ecting the
accustomed dues and rights of the clergy of the Churcli
of Borne ; or to vary or repeal any of the several pro-
visions contained in the said last-mentioned Act, respect-
ing the allotment and appropriation of lands for the
support of the Protestant clergy within the province of

i l\

1840.]

3 A 4 VICT. f. 35.— CHURCH RIGHTS.

681

Cmada, or respecting the constituting, erecting, or
endowing of parsonages or rectories within the province
of Canada, or respecting the presentation of incumbents
or ministers of the same, or respecting the tenure on
which such incural)ents or ministers shall hold or enjoy
the same ; and also that Avhenever any Bill or Bills shall
be passed containing any provisions Avhich shall in any
niiinne?' relate to or affect the enjoyment or exercise of
anv form or mode of religious worship, or shall impose or
create any penalties, burdens, disabilities, or disqualifi-
cations in respect of the same, or shall in any manner
relate to or affect the payment, recovery, or enjoyment
of anv of the accustomed dues or rights herein-before
meniioned, or shall in any manner relate to the grant-
ing, imposing, or recovering of any other dues, or
stipends, or emoluments, to be paid to or for the use of
any minister, priest, ecclesiastic, or teacher, according
to any form or mode of religious worship, in respect of
his said office or function ; or shall in any manner relate
to or affect the establishment or discipline of the United
Church of England and Ireland among the members
thereof within the said province ; cr shall in any manner
relate to or affect Her Majesty's prerogative touching
the gmnting of waste lands of the CroAvn within the said
province : every such Bill or Bills shall, previously to
any declaration or signification of Her Majesty's assent
thereto, be laid before both Houses of Parliament of the
United Kingdom of Great Britain and Ireland ; and
that it shall not be lawful for Her Majesty to signify
her assent to any such Bill or Bills until thirty days
after the same shall have been laid Ijefore the said
Houses, or to assent to any such Bill or Bills in case
either House of Parliament shall, within the said thirty
days, address Her Majesty to withold her assent from
any such Bill jr Bills ; and that no such Bill shall be
valid or effectual to any of the said purposes witliin the
said province of Canada unless the Legislative Council
and Assembly of such province shall, in the session in
which the same shall have been passed by them, have pre-

682

3 & 4 VICT. f. 35.—" REG. OF COMMEllCE." [1840.

RititiJi

^■

('(iloiiial
taxation,

IS Geo. 3.
f. 12.

sented to the Governor of the said province an address or
addresses specifying that such Bill or Bills contains
provisions for some of the pnrposes herein-bef'orc spcci.
ally descril)ed, and desirini^ that, in order to ""ve effect
to the same, such Bills or Bills may be tninsniitted to
England without delay, for tlie purpose of its hoiii;,' laid
before Parliament previously to the sij^nificatiou of Her
Majesty's assent thereto.

43. ^Vnd whereas by an Act passed in the ei;,'lit('eiitli
year of the reign of His late Majesty King Geor;;e the
Third, intituled " An Act for removing all doubts and
aj)prehensions concerning Taxation by the Parliament of
Great Brilaln in any of the Colonies, Provinces, and Plan-
tations in North Anienca and the West Iiulien ; and
for rei)ealing so much of an Act made in thi; seventh
year of the reign of His present ^Majesty as imposes a
Duty on Tea imjwrted from Great Britain into anv
Colony or Plantation in America, or relating thereto,"
it was declared, that •' the King and Parliament of
Great Britain \'Ould not impose any duty, tax, or
assessment whattner, payable in any of His Majesty's
colonies, provinces, and plantations in North Amerko
or the West Indies, exce[)t only such duties as it niij;ht
be expcidient to impose for the regulation of commerce,
the net produce of such duties to ])e always paid and
apj)lied to and for the use of the colony, province, or
plantation in wliich the same shall be respectively
levied, in such manner as other duties collected by the
authority of the respective; general courts or 5,'eneral
assemblies of such colonies, provinces, or plantations
were ordinarily paid and applied": And whereas it is
necessary, for the general benefit of the empire, that
such ])ower of regulation of commerce should continue
to be exercised by Her Majesty and the Parliament of
the United Kingdom of Great Britain and Ireland,
subject nevertheless to the conditions herein-befori'
recited with respect to the application of any duties
wliich may be imposed for that purpose ; be it therefore

1840.]

.•? & i VICT. c. 35. APPKAL CO [HITS.

683

enacted, That nothing in this Act contained shall pre-
vent or affect the execution of any hiw which hath
been or shall be made in the Parliament of the said
United Kingdom for establishing regulations and pro-
hibitions, or for the imposing, levying, or collecting
duties for the regulation ol navigation, or for the
regulation of the commerce bet\\een the province of
Canada and any other part of Her Majesty's domi-
nions, or between the said province of Canada or any
part thereof and >y^^y foreign country or state, or for
appointing and di ting the payment of drawbacks of
such duties so imp.ocd, or to give to Her Majesty any
power or authority, by and with the advice and consent
of such Losjislative Council and Assemblv of the said
province of Canada, to vary or repeal any such law or
laws, or any part thereof, or in any manner to prevent
or obstruct the execution thereof : Provided always,
that the net produce of all duties Avliich shall be so
imposed shall at all times hereafter be ajjplied to and
for the use of the said province of Canada, and (except
as herein-after provided) in such manner only as shall
I'e directed by any law or laws which may be made by
Her Majesty, by and with the advice and consent of
the Legislative Council and Assembly of such province.

44. And wOiereas bv the laws no>v in force in the ^'""'•'* "/

•■ 1 y-, T • Appciii, Pro-

saul provnice of Upper Canada, the Govern* n*, Lieu- uw. Qmin's
tenant-Governor, or person administering the govern- (hancoryjii
mentof the said province, or the Chief Justice of +he ;i»'^:;,|;i" J'
said ijrovince, together with an', two or more of the Ai.pei.i in

^ p * Ix)wer CanadH.

meml)ers of the ExecutiA'e Council of the said province,

constitute and are a Court of Appeal for heaving and

detoruiiuing all appeals from such judgments or sentences

as may lawfully be brought before them : And whereas

by an Act of the Legislature of the said province of

Vpper Canada, passed in the thirty-third year of the

reign of His late Majesty King George the Third, f'^/c'^^^^^

intituled " An Act to establish a Coui-t of Probate in the 33 oeo. 3.

baid Proviuce, and also a Surrogate Court iu every "'"'"

! f'

TOUt>iHf»M»^M*»-t*l»g'T*W*|ft*W"*'<^M*tn' •«*.•

' ••

II ^i;

:; ( 11

3 'i

i I

684

3 & 4 VICT. c. 35.— COURTS OP U. C.

[1840.

(IjIIWS of

I'ppcr CHiiadn
2 Will. 4.

District thcveof," there Avas and is cstahli.«hc(l a Court ol'
Probate in the said province, in which Act it was ciiactod
that the Governor, Lieutenant-Governor, or ix'vson ad.
ministering the government of the said last-montioned
province should preside, and that he should have tho
powers and authorities in the .said Act specilicd ; And
8) whereas by an Act of the Legislature of the said
province of Upper Canada, passed in the second year of
the reign of His late Majesty King William tho Fourth,
intitided " An Act respecting the Time and Place of
Sitting of the Court of King's Bench," it was amoiii;
other things enacted, that His Majesty's Court of
King's Bench in that province should be holden in a
place certain ; that is, in the city, town, or place wliicli
should be for the time being the seat of tho civil
government of the said province or within oue mile
therefrom : And whereas by an Act of the Lcgislatnic
of the said province of Vpper Canada, passed in tlio
seventh year of tho reign of His late Majesty King
William the Foui'th, intituled " An Act to estaldisha
Court of Chancery in this Province," it was enacted,
that there should be constituted and established a Court
of Chancery, to be called and known by the name and
style of " The Court of Chancery for the province of
Upper Canada," of which Court the Governor, Lieu-
tenant-Governor, or person administering the govern-
ment of the said province should be Chancellor; and
which court, it Avas also enacted, should be holden at
the seat of government in the said province, or in such
other place as should be appointed by proclamation of
the Governor, Lieutenant-Governor, or person adminis-
tering the government of the said proAince: And
34 oio. 3. c. 6.) whereas by an Act of tlie Legislature oi the provmce or
Loicer Canada, passed in the thirty -fourth year of the
reign of His late Majesty King George the Third,
intituled " An Act for the Division of the Province of
Lower Canada, for amending the Judicature thereof,
and for repealing certain Laws therein mentioned," it
was enacted, that the Governor, Lieuteuaut-Guvcruoi'i

(Laws of
jjowor Ciiiindii,

\m.]

3 & 4 VICT. c. 35. -COURTS OF L. C.

685

or the person administoririjaf the government, the
members of the Executive Council of the said province,
the Chief Justice thereof, and the Chief Justice to he
appointed for the Court of King's Bench at Montreal,
or any five of them, the judges of the court of the
district wherein the iudgmenv appealed from Avas given
excepted, should constitute a Superior Court of Civil
Jurisdiction, or provincial Court of Appeals, and should
take cognizance of, hear, try, and determine all causes,
matters, and things appealed from all civil jurisdictions
and courts wherein an appeal is by law allowed ; he it
enacted, That until otherwise provided by an Act of the
Legislature of the province of Canada, all judicial and
ministerial authority which before and at the time of
passing this Act was vested in or might be exercised by
the Governor, Lieutenant-Governor, or person adminis-
tering the government of the said province of Upper
Cdiioda, or the members or any number of the members
of the Executive Council of the same province, or
was vest(Hl in or might be exercised by the Governor,
Lieutenant-Governor, or the person administering the
government of the province of Lower Canada, and the
members of the Executive Council of that province,
shall be vested in and may be exercised by the Governor,
Lieutenant-Governor, or person administering the gov-
ernment of the province of Canada, and in the meml)er8
ov the like number of the members of the Executive
Coimcil of the province of Canada respectively ; and
that, until otherwise provided by Act or Acts of the
Legislature of the province of Canada, the said Court
of King's Bench, now called the Court of Queen's Bench
of Upper Canada, shall from and after the union of the
provinces of Upper and Lower Canada be holden at the
city of Toronto, or within one mile fi'om the nnmicipal
boundary of the said citv of Toronto : Provided alwavs,
that, until otherwise provided by Act or Acts of the
Legislature of the province of Canada, it shall be lawful
for the Governor of the province of Canada, by and with
the advice and consent of the Executive Council of

II'

! i

! )

tiM

I ii

|M|in/'l

686 3*4 VrCT. c. 35.— POWERS OF GOVERXOR.

riH40,

Powers to be
t'xorcised by

the same province, hy his proclamation to fix and
appoint such other place as he may think fit within tliat
part of the last-mentioned proA'ince Avhich now consti.
tutes the province of Tipper Canada for the lioldiiv^ of
the said Court of Queen's Bench.

45. And he it enacted, That all powers, aiitlioritios

Governor with and fuuctious wliicli hv tho said Act passed in tliothii

the Executivo
Council or
nlono.

Elxisling liiW'i
siavcil.

first year of the rei*?n of His late Majesty Kinsj ( Jcov^o tiie
Third, or hy any other Act of T»arliament, or hy anv Act
of the Legislature of the provMices of Upper and Loicer
Canada respectively, are vested in or are authorized or
required to he exercised hy the respective Governors or
Lieutenant-Governors of the said province.-, with the
advipe or with the advice and consent of the Exocutive
Council of such provinces respectively, or in conjunction
Avitli such Executive Council, or with any nuinl)er of
the raemhers thereof, or hy the said Governors or Lieu-
tenant-Governors individually and alone, shall, in so far
as the same are not repugnant to or inconsistent with the
provision of this Act, he vested in and may ho exercised by
the Governor of the province of Canada, with tlie advice
or with the advice and consent of, or in conjunction, as
the case may require, with such Executive Ci)nncil, or
any memhers thereof, as maj be appointed by Her
Majesty for the affairs of the province of Canada, or by
the said Governor of the province of Canada individu-
ally and alone in cases where the advice, consent, or
concurrence of the Executive Council is not required,

46. And he it enacted. That all laws, statutes, or
ordinances, which at the time of the union of the
provinces of Upper Canada and Loicer Canada ^\\i\\\\i^'vi\
force within the said provinces, or either of them, or any
part of the said provinces respectively, shall remain and
continue to be of the same force, authority, and eifect
in those parts of the province of Canada which now
constitute the said provinces respectively as if this Act
had not been made, and as if the said two provinces had

1840.]

3 & 4 VICT. e. 35. SAVED LAWS & COURTS. ^^7

not been united as aforesaid, except in so far as the same
are repealed or varied by this Act, or in so far as the
same shall or may heri^after, hy virtue and under the
authority of this Act, he repealed or varied by any
Act or Acts of the Legislature of the province of
Canada.

47. And be it enacted. That all tlio courts of civil Courts of
and criminal jurisdiction within the provinces of Tipper missions,
and Lower Conada at the time of the union of the said " '^'"^'*' "'
provinces, and all legal commis-sions, powers, and autho-
rities, and all officers, judicial, administrative, or minis-
terial, within the said pro^anccs respectively, except in
so far as tlie same may be abolished, altered, or varied by
or may be inconsistent with the provisions of this Act,
or shall be abolished, altered, or varied by any Act or
Acts of tlie Legislature of the province of Canada, shall
continue to subsist Avithin those parts of the province
of Canada whicli now con.stitute the said tAVO provinces
re.s]>ectively, in the same form and with the same effect
as if this Act had not been made, and as if the said two
l)rovinces had not been re-united as aforesaid.

respecting teni-
poniry Aet.s.

48. And Avhereas the Legislatures of the said pro- Provision
vinecs of Zipper and Lower Canada have from time to
time passed enactments, which enactments Avere to
continue in force for a certain numl)er of years after
the passing thereof, " and from thence to the end of
the tiien next ensuing session of the Legislature of
the province in which the same were passed ;" be it
therefore enacted, That Avhenever the words " and from
thence to the end of the then next ensuing session of
the Les^islature," or words to the same effect, have been
used in any temporary Act of either of the said two pro-
vinces whieh shall not have exjnred before the re-union
of the said t^^o provinces, the said AA^ords shall be
construed to extend and apply to the next session of
the Legislature of the province of Canada.

\ ' I »

■ -tnmmg»?myw*^«**^ i

, i

^ . I

i
1

i
i 1

I I

! r >'

688 8 A 4 VICT. c. 35.— CONSOLIDATED FX^ND.

[1840,

Eepeal of part
of 3 Geo. 4.
c. 119.

49. And whereas l)y a certain Act passed in the
third year of the reign of His late Majesty King George
the Fourth, intituled •' An Act to regulate the Trade of
the Provinces of Lower and Upper Canada and for
other Purposes relating to the said Provinces," certain
provisions were made for appointing arhitratovs, with
power to hear and determine certain claims of the
province of ZTpper Camidn upon the province of Zoicer
Canada, and to hear any claim which might he advanced
on the part of the province of Upper Canada to a pro.
portion of certain duties therein mentioned, and for
prescrihing the course of proceeding to he pursued l)y
such arbitrators; be it enacted, That the said recited
provisions of the said last-mentioned Act, and all
matters in the same Act contained which arc conse-
quent to or dependent upon the said provisions or auv
of them, shall he repealed.

uro'™^- ^^- ^"^ ^^ ^^ enacted, That upon the union of the
vinccs to form proviucos of Zipper and Lower Canada all duties and

ft Consolidated * i . • ■ i j • t • i i « ,

Revenue Fund rcvonups ovcr which tlic rcspcctivc Legislatures of tho
ofcamuia?""^" Said provinccs bcforc aud at tho time of the passing of
this ^Vct had and have power of appropriation shall
form one Consolidated Revenue Fund, to ho appropriated
for the public service of the province of CoikkJo, in
the manner and subject to the charges herein-after

mentioned.

Consolidated
Revenue I'und
to be charjjed
with expense
of collection
and manage-
ment.

51. And be it enacted, That the baid Consolidated
Revenue Fund of the province of Canada shall bt^
permanently charged with all the costs, charges, and
expenses incident to the collection, management, and
receipt thereof, such costs, charges, and expenses hein;,'
subject nevertheless to be reviewed and audited in sucli
manner as shall be directed by any Act of the Legis-
lature of the province of Canada.

£46,000 to be 52. And be it enacted, Tliat out of the Consolidated
nontiy, for the Rovenuc Fuud of tlic proviucc of Canada there shall be
^^w'j^Ic'a., payable in ev(M'y year to Hor Majesty, her heii-s and

lim ^i

1S40.]

3 & 4 VICT. c. 35.— CIVIL LIST.

G89

successors, the sum of forty-fivo thousand pounds, for f"r\ho n'fo^oi

(Iffmvini? th(' (»\'[)onso of tlic several services and i)ur- i'*'' ^I'ljesty,

'•• 1 CI 111 111 !•» '""^ ''^''-' yi""'*

noses named ni the .Schediue marked A. to this Act following, for

annexed ; and durins? th(^ life of Her Majesty, and for L'lu'iuL u.

five years alter the demise of Her Maj(;sty, ther(? shall

be payalih* to Her Maj(?sty, her lieirs aud successors, out

of the said Consolidated llevenue Fund, a further sum

of tliirty thousand pounds, for defrayini>; the expense of

the several services and {)ur[)()ses named in the Scluidulc

marked B. to this Act aiuunxed ; the said sums of forty-

tive thousand |)ounds and thirty thousand pounds to be

issued by the Receive r-General in discharge of such

waiTiUit or warrants as shall he from time to time

directed to him under the hand aud seal of the Governor ;

and tlie said lleceiver-General shall account to Her

Majesty for the same, throiijj;h the Lord High Treasurer

or Lords Conunissioners of Her ^lajesty's 'J'reasury, in

such manner and form as JI(M' ^Fajesty shall he i;raciously

iileavd to direct.

•I !

53. And he it enacted. That, until altered hv any How the appm-

iT'i •! • -y i' prmt 11)11 of

Act of the Legislature of the province of CdixKhi, the sums ciMntcd
siilaries of the Governor and of the Judges shall he those '""'^
respectively set against tluMr several offices in the said
Schedule A.; hut that it shall he lawful for the (Jovernor
toali(dish nnv of the offices named in the said Schedule
H.. or to vary the sums appro])riated to any of the
services or |)urposes nanuvl in the said Schedule JJ.; and
tliMt the a:noiiiit of saving which may aeenic from any
such alteration iii eitlu'r of the said Sclu'dulo shall he
iiljpi'opriated to such purposes connected with the
aihninisti'ation <)f the government of th(> said i)rovince
as to Her Majesty shall seem lit; and that accounts in
detail of the expenditure of the several sums of forty-
five thousand pounds and thirty thousand pounds hcrein-
liel'ore i;i;mti'd, and of every |)art thereof, shall he laid
heiitre the Legislative Council and Legislative Assembly
ol the said provuice within thirty days next after the
beginning of the session after such expenditure shall

S 2340. X X

690

3 & 4 VICT, c, 35.— CROWN REVENUES ST^TIRT).

\\m.

Surronder of
hcri'ilitiiry
rcvcmu's of I ho
Crown.

liavo l)oon made : Provided ahvays, that not more tlian
two thousand pounds sliall l)o payahle at tlio same tinK.
for ])('nsions to the Judi?os out of tho said sum of forty.
tivc thousand pounds, and that not more than liif.
thousand pounds sliall ho payahle at the same time tor
pensions out of the said sum of thirty thousand ijomids^
and that a list of all such pensions, and of tli(> persons to
Avhoni the same shall have heen granted, shall l)c laid
in every year hcfore the said Legislative Council and
Legislative Assemhly.

54. And he it enacted, Tliat during tlu^ time for
which the said several sums of forty-five thousand
pounds and thirty thousand pounds are severally pavalilc
the same; shall he accepted and taken hy ITer ^lujcstv
hy way of civil list, instead of all territorial and otlior
revenues now at the tlisposal of the Crown, avisin;; in
either of the said provinces of Z^ppcv Cdnmhi or Lowi'
Canada, or in the province of Canada, and that tluvc
tiftlis of the net produce of the said territorial and other
revenues uoav at the disposal of the CroM ii u ithin tlio
province of Canada shall he paid over to the account of
the said Consolidated R(n'enu(5 Fund ; and also duriii!;
the life of Her Majesty, and for tive y(>ars after the
demise of Her ^Eajesty, the remaining two fifths of tin'
net produce of the said territorial and other rcvoiuics
now at the disjiosal of the Crown Avithin flu; provincoof
Canada shall he also paid over in like manner to the
account of the said Consolidated Revenue Fund.

Charges
nlreacly created
ir. I'ilhrr pro-
vince.

55. And he it enacted. That the consolidation of tlio
duties and reA'onues of the said province shall not 1)0
taken to alVect the payment out of the said Consolidated
Revenue Fund of any sum or sums heretofore cliars:!'*!
upon the rates and duties already raised, levied, and
collected, or to be raised, levied and collected, to and for
the use of either of the said provinces of Vppci' C'diioik
or Lower Canada or of the province of Caiiodo, for
such time as shall have heen ajjpointed hy fhe sevend

1K40.] 1 A ^ VICT. c. 33— CHARGES OX CONS. FUND.

001

Acts of tlio Lopfislatnrri of tho provinco by whicli such
clijirijos wore scvemlly authorized.

56 And bo it onactod, That tlio rxp(>nsrs of fhp t'" "•.i.-vof
collection, nianagemciit, and receipt of the sjiid Con- <;Mi^..ii.iaua
solidiitcd Rcnenuo Fund shall forni tlie first cliari^e i..,. |.;x,„.„,c.
tlioivon ; and that tlie annual interest of tlie ])iiblic "''""" ^""''
(l('l)t of the provinces or ipper and IjOWCv OhkuIo, uy 'A'\\vM<\\
of cither of them, at the time of the re-union of tlie .said •'''''• '''.vnuiits
provinces, shall form the second char«?e thereon; and m, ,„„i sih
that tli(> payments to be made to the cler<:?y of the ^"'' ^'** '
I'nitod Church of England and Ireland, and to clerf^y
of tlie Cliurcli of Scotland, and to ministers of other
Christian denominations, pursuant to any law or usaii^e
whcrehy such payments, before or at th(^ time of passiui;?
this Act, were or are lei^ally or usually i)ai(l out of the
I'lihlic or Crown llovonue of (<.ither of the provinc(^s of
Vppor and Lower Canada, shall form the third charge
iipou the said Consoli(hite(l Revenue {•'iind ; and that
the said sum of forty-five thousand pounds shall form
the fourth chari^e thereon ; and that tlu> said sum of
thirty thousand pounds, so long as the same shall con-
tinue to he payable, shall form the fifth charg(^ tlu'reon ;
and that the other charges upon the rates and duties <"'''>• oiiur
levied withm the said province of Canada herein-l)(?fore mmic on thr
resevved shall form the sixth charge tlier(>on, so long as ]{"v'i.lmo.
such charges shall continue to be payable.

57. And be it enacted, That, snbiect to the several s>''j'" t-tiio

, .■llinvc cllillVcs,

payments hereby charged on the said Consolidated the lonsnii-
lleveiiue I'und, the same shall be appropriated by the I'lmii to ixs
Lcijislature of the province of Canada for the public "J'ZS,!'^
service, in such manner as they shall think proiMU-: '''"'"'.^"'fn';
rroviiled always, that all Bills for appro^jriating any "|•'^'i"i"'"t-' '"
part of the surplus of the said Consolidated Ke\ enue A>s(mi,iy tor
riind, or for imposing any new tax or impost, shall ',Iu'.','i!!r,ri'y 'tli,-
originate in the Legislative; Assembly of the said pro- ""^"•""''
vince of Canada: Provided also, that it shall not bo
law! Ill for the said Legislative Assembly to originate or

XX 2

i;!l!

V; ) :

.!•

-i «

! i

!!(

H*'!'

!'i

'fj-I

Townsliips to
})e cijii'stitutol

002 3 k 1 VICT. p. 35— POWET^S OF GOVKllNOR [lam

])ass any vot(\ ivsoliition, or Bill I'ov tlic appropriation
of any i)art of the surplus of the said Coiisolidati.d
U(»vonuo Fund, or of any otiior tnx or ini|)ost, to miv
j)urposo which shall not hav<! hocn first rceoimnciidcd
by a ni('ssaj]fo of the Gov«'rnor to the said Lctjisjativc
AssiMnhly during? the session in Avhich such vote
resolution, or hill shall ho passed.

58. And h(> it «'nactod, That it shall he huvful lor
the Gov(M'nor, hy an instrument or instruments to he
issued hy him for that i)ur))ose under the u;r('at seal of
the jn'ovince, to constitute townships in those parts of
the province of Cdinnfa in Avhich townships arc not
alrejuly constituted, and to fix the metes mid hounds
thereof, and to provide for the election and appointment
of toAvnshij) officers therein, who shall have and exercise
the like powers as are ("xercised hy the like olllccrs in
the townships already constituted in that part of tlic
province of Cinwda now called Vpppr Ctniddn ; ami
every such Instrument shall he published hy jjroclama-
tion, and shall have the fore*' ot law from a day to l)e
named in each case in such proclamation.

59. And he it enacted, That all powers and authorities

Powers of

OoVlTIlDf to 1)0 1 . 1 • 1 .

oxoniscd suii- expressed in this Act to he •?iven to the (Joveriior of tlie

jwt to ill-true- . ,. , I 1 11 1 ' • 1 1 1/1

tionsof ii.r province ot t (111(1(1(1 sliail he (vxercised hy such dovcrnov
Vi.j.sty. jj^ conformity with and subject to such orders, instruc-

tions, and directions as Iler Majesty shall from lime t(t
time see fit to make or issue.

MapciaUn gQ. And wlieivas TTis late Maiestv Kim? (icori>c tlie

Isliiiids limy lx> ^ _ j . ^r-'

niimxdi loth,. Third, by his royal proclamation, hearint? date tlie
I'riiae K.iwimi. scvontli (lay of Octohcr in the third year of his reign.
Avas pleased to declare that he had put the coast of
Labrador, from tlu^ River Saint John to lliulson's
Straits, with the islands of Aiiticosti and Madelaiiio, and
all other smaller islands Ivinj; on tlie said coast, under
the care and inspection of the Governor of Xcirfouii<l-
land : And whereas by an Act passed in the foiutccnth

1H40.;

3 «c 4 VICT. c. 35.— OLD SALARIES.

693

year of tin* rcipjn of FTis said late Majesty, intituled
" Vn Aft lor inakiii"" mon* elVectual Provision I'or tli«» '*''*"'•
(lOVcrniiH'iit of the Province of Quebec in North
America,^' all sucli territories, islands, and counties
which had, since the tenth day of Fehruary in the year
one thousand seven liiindred and sixty-three, hcen made
iMirtot'the Government of NewJ'oumllond, were durinpf
His >rajesty's ]»leasiire anncx(?d to and made j)art and
|)iucel of tlu^ proviuct; of Q/tcbcc, as created and estah-
iislu'd by the said royal prochimation ; he it dcchired
aiul cuact(Hl, That nothinf]^ in this or any other Act
contained shall he construed to restain Her Majesty, if
she shall he so i)h'ased, from annexing? the Magdalen
Inlands in the Gulf of Saint Lawrence to Her Majesty's
island of Prince J£dward.

61. And he it enacted, That in this Act, unless i»t»rpn;tation
otherwise; expressed therem, the words •' Act of the
Legislature of the ])rovince of Canada" are to ho
understood to mean "Act of ller Majesty, her heirs or
successors, enacted hy Her Majesty, or hy the Governor

on behalf of Her Majesty, with the advice and consent
of the Legislative Council and Asscmhly of the province
of Canoda"', and the words " Governor of the province
of Canada " are to he understood as comi)rehendiug the
Governor, Lieutenant-Governor, or person authorized to
execute the ofiice or the functions of Governor of the
said province.

62. And he it enacted. That this Act may he Ait nmy u

J, 111 4 1 ^ • it altiTi'il this

aniendeu or repealed hy any Act to be passed in the scsnIoh,
present session of Parliament.

SCHEDULES.

SCHEDULE A.

Governor
Lieutenuut-Qovernor

£
7,000
1,000

■J

C91

3 & 1 VICT. c. 78.— CLERGY RESERVES.

[1810.

Upper Canad.\.

1 Chii-f Jiistiir

'1 I'lii.siie Jiul<r('s, at t'.KK) riicli

1 Vicc-Cluuicullor - - -

1,.")II0

M.i

LowEU Canada.

I Chu'f Jiistiw, Quohoc

.'M'liisiM' .liidfii's, Quebec, at £900 each - - - .

1 Cliiff Justiei', IVIontival

3 Piiisno Judges, Mimtiiuil, at £900 oaeli- . - .

1 lle.sideiit .Tnd;;i' at Tlirei' Rivers - - - - -

1 Judge of the Inferior District of St. FrancLs

I J\i(lgc of the Inferior District of Gaspo

tensions to tlie Judges, Sahiries of the Attornies and Sohcitms
(loneral, and Contingent and MisceUaneons Expen.ses of
Administration of Justice tluoughout the I'roviuce of
Canada

SCHEDULE B.

Civil' Secretaries and their Ollkes -
Provincial .Secretaries and their Olliccs
Receiver-General and his Ollice
Inspector-General and his Office
E.xecutive Comicil . - - - -
Roard of Work.s . - - - -

Emigrant A;.;ent

Pensions ....--
Contingent H'cpen.ses of Public Offices -

2,70(1

l.KHi

2,70(1

<)(H)

.")(H»

.)0;)

20,s:,-,
£15,000

- S.O(KI

- :i,o()o

- ;),()( K)

- 2.0!K)

- :i,m

- <!,tK)0

700

- "),(KK1

3,;iO(i
no,(m

3 & 1 VICT. (1810) c. 78.

s .;cs. 11 and 13 repealed by S. L. «. Act, No. 2, 1871,
37 & 38 V^ict. c. 00. Preamble, sec. 1 to the \V()r(ls
" this Act," and sec. 8 from the words " lord Iiigh" to
" Majesty's " and from " of the United Kiii-doni " to
" Ireland," repealed l)y S. L. R., 1800, No. 2, 53 & 51
Vicr. c. 51. See 7 & 8 Geo. t. c. 62., and IG & 17 Vict.
c. 21.

This was an Act to provide; for the Una! (lis|)()siti(m
of the hi'i'ls called Cleri^y Ue.serves in Canailu and tw
the appiopriation of the yearly income arising' there-
from' for the mairtcnance of relii>ion and the tulvauce-
ment i)f Christian knowlclj^e within tlie province. Aiul
that it should be lawful for the Governor of the pro-

[IHIU.

£
1, .)()()

1,1:!.)

l..')(H(
2.7(HI
I.IOII
-',7(xi

<)(H)
.")(I0

1S40.]

3 & 1 VICT. c. 78.- CLERGY FUNDS.

695

c'ltms

LV of

- 2(),,s:.-,
i'l.J,0(JU

■ S.()(KI

- .'i,(l(K)

- ;i,(Ktfl

- 2.000

- :\,m

■ i,(H)ll

700

- .).(KKI

."^..'ioo
f.'JO.OOO

S^o. 2, 1871,
i the words
(I high " to
iiU'doni " to
2, 58 & 51
& 17 Vict.

disposition
d'.i, and I'or
sill!;' tiiorc-
(' advance-
inc(>. And
j1" the pro-

vince of Canada, with the advice of the Executive
Council, iiiidei' such regulatioiLS made ^y him in Coun-
cil and approved l)y the Queen in Council, to .sell and
convoy in fee sim^de all or any of the said Clergy
llosorves. The quantity sold in any one year not to
exceed 100,000 acres.

By sec. 2, thf^ proceeds of all past sales which had })ecn
invested under 7 & 8 Geo. 4. c. (52. Avere to he suhject
to the Older of the Governor in Council, either i'or invest-
ing in public funds in Hie jirovince of Conada .secured
on the con.solidated fund of the province, or in the
puhlic funds of Great Britain.

Bv sec. 3, the interest and dividends accruinj^ on
such investment, &.C., were to he paid to the Receiver-
General of the province of Canad((, and were together
to^foriii an annual fund in the first place to satisfy all
annual ..tii)enils and allowances as liad been hitherto
nssigned and given to the clergy of the Churches of
KmjJond and Scol/and, or to any other religious bodies
or denominations of Christians in Canada, and to which
the faith of the Crown was pledged, during the lives of
the per-sons leceiving the same. The section then pro-
vided that until the annual fund so created and de-
posited should suffice to nie(;t the above stipends and
allowances, so much as the fund might be insufTicient
was to 1)0 paid out of the casual and territorial revenue
of the Crown in the province of Canada.

By sec. i, wIkmi the fund ceeded the several
siiponds and allowances, and subject to the lit-' v satis-
faction ol them, the annual fund was to be appro-
priated as f(dlows. The net interest accruing upon invest-
ments of the proceeds of all .sal(>s of nvserves .sold under
7 (.t 8 Geo. l-. c. 02. were to be divided into three
i'(pial parts, of which two were to be ap])i'0])riated to the
Church of J'j'iiylandmnl one to the Chureli of S'cof/and ir
CdiKidii ; and the net inti'iest, (.V'.'.. aceruiug ui)oii invest-
ments of the jiroceeds of all .sales of reserves sold under
authority ol this Act were to be divided into six ecj^ual

u ^ ^'ii 'iraiii n^

ffl [ I 11

i i m^

: i ' i !' h ■

" i ' ^'

1 lij, ■ 1 i

jlj

., 1 i : i i

1 i !

» ' 1 g

; ' ;

■ ' ■■ i i ■

1
, i

• ' ! ' nil '

\'A

Ml '

i; iiii> j

696 .{ & I VICT. *•. 7W.— CLKTtGYFUNDSrul'M'S. [m

10.

parts, of Avhich two were to ))(>api)ro))riato(l to the Cluirdi
ol' Iut(//<ni(f and one to tlic ('hiivch ol Sr(,/hi„,i i,,
CiiiKnl I. Tlic s"cti(Hi tlicii ))vovi(UMl that the aiiioimt ^^\
the helore-iiK'ntioiicd stipfiuls and ariowanccs which
shoidd he paid to and received by any eler<,7n)ini oi ( itlui
of the said Cliiirehes of Jjif/fottci or ScolUiml wciv to 1),.
taken, as far as the same went, as a part of the shaivae.
oruinij: to each Church respectively hy virtue of tliis Aci,
that is, the stijM'nds and aUowances to any clergyman
of the Church of F.iKjhnid as part of the share accrnin^r
totheCliureh of li!ii(jl<ni<l,x\m\ tlie stipends and allow-
ances to any ch'rL'yuum of Ihj Cluirch ol' Seothiiid as
part of the share accruing to the Cliurch of Scoll(iii(l,s>
that neither of th»* said Churclies sliould reeeivi an\
further or other sum beyond such respective sti)n'ii(ls
and aUowances until the [troportion of the said aiiniml
fund allotted to them resj)ectively in manner aloicsiiil
should exceed the annual aiuoiiiic of such stipends ainl
allowances.

liy sec. 5, it was enacted that the share ap^jropriatcd
to each of the said Churches shoidd be expended lor tin
sup[)ort and uniintenance ol" public worshij) and tin
propagation of religi<nis knowledge, th(> share ol tlir
Church of Enyhanl being so exju'uded uiuh-r tlic aiitlid-
rity of the " Society for the Propagation of the (i()s|i('l in
Foreign I'arts," ?'.iul the share of the Church of Sajtliiml
under the authn'its of a board of nine comniissiom'is,
to !)<• eh!Cte(l by the Synod of tlu; I'reshyterian C'lurli
of C('H(t<l<t in connection with the Church ol" ISrollaiid.

By sec. (>, tlu' share of «'acli Church waK to he paid
on warrant of the Governor.

Jiy sec. 7, it was provided that the residue of tln'
aniuial fund should be applied by the Governor nt
Cn/uuht, \\'\tU th(> advice of the Kxecutive Cunncil, lor
purposes of public worship and religious instruction in
('(inada.

By sec. 8, the Heceiver-tieneral was, on or hct'orc tin
15th January in every year, to didiver to the tiovenioi

1H42.] 0 & 0 Virr. <•. V20.- CONSTITUTION OF NFL. 697

a cortitk'iitr of tlir not aiuount vvliich in that yoar would
be appliwxbli" to the s(!Voral Churches of HugUind and
Sroll(iii(f out of the fund. And that whenever the sum
applicable was loss than £7,700 iu ease of the Church
[){ England in Uppii' Cmunht, awA C1,5H() in the; case
of the Cliurch of Scolhnid in CpiH'i' Canada, the de-
ficiency iu <*acli wis(; was to he made j^ood out of the
consolidated I'uiid of the United Kingdom.

Hv sec. !), accounts were to he rendered to the
(iovLTiioi' ill Council.

Sec. 10 lyave the Governor a summarv remedy in
ISO of any misapplication of the fiuuls.

By sec. 11, so much of \\\ (Jeo. IJ, c. \\\. as related to
am reservations of laiul hereaftiu* to he uiade in rppi't'
and Lun-cr Cunoda for the support and maintenance of
a Pi ti uit clerj^y was repealed.

E} sec. 12, "Province of Canada" was to mean
'■ United Provinces under li & 1 Vict. c. 35., and
'"; vernor," Ciovernor, or Lieutenant-Governor, &c.

5 & (J VICT, a 842) c. 15.
Imperial Co))yrisi;lit Act. Scfi post, Copyrifjfht Acts.

5 & 0 VICT. (1842) c. 120.

Sees. 5, 6, 8, 9, 10, 11, repealei hy S. L. R., 1871,
Xo. 2, 37 & '^8 Vict. c. 9(). Vr 'amine, sec. 1 to the
words " of the sjime, that," re[)ealed S. L. M., 1 890, No. 2,
5:i&r)l Vict. c. 51.

An Act for amending the Constitution of the
(iroveninient o^ Newfoandland. [VI Aug. 1842.]

lATlII'lUKAS hy a commission under the jj;reat seal
' * ot the United Kiu«i;dom of Great Britain and
IreliiuJ, bearinj^ date at Westminster the second day of
Ali'.nli ill the year one thousand eight hundn'd and
tliirty4v«ro, llis late Majesty King William the Fourth
did ^Mve and grant unto the then (Jovernor of the island
of Aen^'oundland full power aud authority, with the

llilf<:

M • , ,'

i • ' ! 1 E

.«<-»wirjyt»tt«Ma»tf,a;ia^wH»m-iaWWrii« .- •,•

698 5 & (J VICT. c. 120.— TOWNSHIPS IN N.F.L. [i.s^j

advice and consent of the Council of the said island, from
time to time, as need should require, to siiimnon and
call i^eneral assemhlies of the freeholders and liousc
holders within the said island and its dejxMidcneics, in
such manner and form, and according? to such powcis
instructions, and authorities as were £;:ranted or appointed
hy certain instrvu'tions under His said late ]\laj('stv's
sifj^n manual and signet accompanyins^ the said c(nn-
mission ; and His said late Majesty did by the said
commission declare, that the jiersons so elected, liavin;,'
taken certain oaths therein mentioned, should he railed
and decMued th(^ General Asscnnhly of the said island of
Kewfoiindlond ; and tlie sjiid Governor, hy and with tiie
mlvicu and consent of the said Council and Assciuhlv or
the major part of them respectively, was hy the sjiid
commission empowered and authorized to make, consti-
tute, and ordain laws, statutes, and ordinances for the
public peace, welfare, and good governnu'nt of the sjiid
island and its de londencies, and the peoph? and iidiabi-
tants there )f, and such others as should resort thereto,
and for tlu benefit of His late Majesty, his heirs and
successors : And whereas bv the before-mentioned
instrj;ctions so referred to as aforesaid in the said com-
mission the said Governor was authorized to issue a
proclamation dividing the sjiid island into distiicts or
counties, towns or townships, and ajjpointiui; the limits
thereof, and declaring and apjjointing i\w nunibev of
rei)resentatives to be chosen l)y each of such distiicts or
counties, towns or townshijjs res})ectively ; And whereas
the proclan ation referred to in the said last-nn'iitioned
instructions was accordingly issiu'd by the said (iovernoi'
in the nann^ and on the behalf of His said late Majesty,
whereby the said ishind was divided into niii*: districts
for the i)urpose of the election of the nunnhers of the
said Assembly ; and it was ])y the said proelaniatioii,
amongst other things, declared, that every man hcin^' ul
the full age of twenty-one years and upwards, and hein;:
of sound understanding, and being a natural- horn .sub-
jcct of J.is said late Majesty, or having iieuu luwliiU)

liiiliiiH

1812.]

5 & 0 VICT. c. 120.— LEGISLATORS.

099

iiiitunilizcd, and never haviiii^ been convicted in due
coiivscM)!' law ol" any infamous erinie, and havini^ for two
veal's next immediately precedinsjf the day of election
()ccu|)ii'(l a dwellinif house within the said island, as
ouiuT or tenant thereof, should he eligible to he a
mciiibcr ol" the said JCouse of Assembly ; and it was l)y
till' siiid proclamation further d«'clared, that every man
who for one year next immediately precedinj^ the day of
(lection had occupied a dwellin<^ house within the said
islaiul, as owner or tenant thereof, and Avho in other
ivspects niii^ht l)e elii^ible, accordini^ t) the rei^uhitions
iiloresaiil, to be a jnember of the said lIou.se of Assembly
sliould l)e competent and entitled to vote for the election
of incnihers of the said Assembly in and for the district
witliiii which the dwelliui^ house so occu[)ied as afore-
siidlnhini niiii;ht be situated: And whereas, in pur-
Miancf of the said commission, instruction, and pro-
clamation, (Jeneial .Vssemblies have since been elected
and lioldcn in and lor the said ishmd of Newfoundland
ill the maimer therein prescribed ; and the sjiid com-
mission and in.struclions have from time to time been
renewed on the appointment of the successive Governors
of the said island, and divers laws have been made in
|)iii'siiaiice thereof by the said Governor, Councii, and
Asseiuhly : ^\.nd wlnu'eas it is expedient that the changes
iieicin-aftcr mentioned should be made in the constitu-
tion of tli(^ ( lOvernnuMit of the siiid island ; be it therefore
enacted by the Queen's most Excellent Majesty, by and
with the advice and consent of the Lords Spiritual and
Temporal, and Commons, in this present I'arliament

assembled, and by the authority of th<^ same. That it ^'«^I»j'^|,v
l ,. , , , * , " , , cinpDWi'iHHl to

^iiall he law! Ill to- iUiv ;^[aJesty in or by any commission riistiucjimii-
•T coiinnissions under the i,'reat seal of the United mTni'i'.!^rs*of
lviM!:(l.)in, to he hereafter IssikmI for the Government of -^'"^"'^^y-
^''irfotiudlitiul, and in and by any iiistructions under
Her Mnjcsty's signet and sign manual accompanying
find relerred to in any such commission or commissions,
'oestuhUsh a qualification in respect of income or pro-
perty in right of which any person may be hereafter

i •

!' •

H\lik

t 'i'.

fiiil:

;j; '

IrM-

) '

700

5 «t 6 VICT. f. 120.- EXECUTIVE COUNCIL.

[1H4'.>.

elected to serve jts a member cf the sjiid Assembly
provided that no such qualification shall Ix; H.xcd at
more than a net annual income, arisinj^ from aiiv source
whatsoever, of (me hundred pounds, or the ])()ss('ssion of
prop(M'ty, clear of all incumbrances, exceeding live
liundrcd pounds in amount or value.

iierMHJ.st.v 2. And be it enacted, That it shall he lawful for l[(.v

mipuwurfil to . . . . 1 .

lengthen ixiio.! Majesty, in manner aforesaid, to lix and detenuiut' tlif
cieitow. leiif^th oi tlu! period of residence AVitlun any oloctoral

district in the said island Avhich shall he rcciuircd iji
addition to any other (|ualific{ition for voting' at elections
Avithin such district, or for heiiif? elected to serve as u
member of the Assembly ; provided that such period
shall not extend beyond the period of two years ne.vt
precedinjj any such election.

H. r Majesty 3^ ^11(1 be it cmicted, That it shall he lawful for llcr

rnipowercil to , , . • 1

restrain appro- Majesty, ill manner aforesaid, to restrain the said
m"ime. Assembly from appropriating to the jjiiblic service within

the said island any part of tlie public reveiuK? tlicr<'of,
in cases where such services shall not have bi-oii
previously recommended, or such grants of money shall
not have ])een previously asked, by or on the behalf ol
Her Majesty.

4. And be it enacted, That it shall be lawful for Her

to be simu
taiicou:

Hm' Miye!-tv

enipuwprcil to . , . ,, .

direct elections Majesty, ill manner aforesaid, to restrain and piohibit
the election of members to serve in the said Assembly,
in dilferent districts, on successive or ditlerent days,
and to require that all such elections «hall he siiiuil-
taneous, and shall be completed within a time to hi
limited.

Her Mi\jesty
may HpjH)iiit
an Executive
Council.

6. And be it enacted, That it shall be eompetent to
Her Majesty, in manner aforesaid, to establish an Exe-
cutive Council for advising the Governor of t\w smmI
island, apart and distinct from the Legislative Council
thereof.

1H42.] 5 & 6 VICT. c. 120.— PREKOGATIVE SAVED. 701

A \n(l be it onactod, Tlmt it shall Ix; laAvfnl for Her ^^''' ^^"i'"'\y
Afiiiestv, in manner aforesaid, to al)olisli the Lcirishitivo aiMiiishthc
{'ouncil ol tn(» said island as a distinct house or orancli .list irRtiiiiimh
nf the Lof^islaturc thereof, and to authorize and oinj)()\ver ',1',,','^ ^b""*-
thc members of the said Legislative Council to sit and
voto in the House of Assembly as members theniof, as
fullv ill all resjiects as the elected members of th(» said
House: Provi(h'd always, that the number of members
so to 1)0 authorized to sit and vole in the said llcnise of
Assembly shall never be more than two-lifths ol' th«'
wliole number of the members of such llons«» of Assem-
l)lv : Provided also, that it shall be competent to Her ""'i •" '••-

• , . . • 1 i 1 !• 1 1 «stiibli<li it.

Majesty again, m manner aforesaid, to re-eslahlish the
Le|;islative Council as a sei)arate House of the? Legisla-
ture ol the said island.

7. And be it enacted, That any such future commis- iMitimcom-
sion or instructions as aforesaid sliall be laid before l)oth iaiTi'.f..iv
Houses of Parliament within thirty days next nflei' the '•"•i""'""'-
(late thereof, should Parliament then be in session, or if
not, then within thirty days next after the commence-
ment of the then next session of Parliament.

8. Provided always, and be it enrcted, Tluit no cimngcin
cliaiii!;!' which shall be made in the C(nistitutioii of the nnttdcoiitiime
siiid island under this Act shall contiiuu; f<)iMi longer S\T1%>"u.s.
time than tln^ Him dav of Seiitember oiu; thousand eiirht i''"''""""* .
liimdred and forty-six, unless ParMfUient shall otherwise 'i'"<t-
01 dec; but this enactment shall not be construed to
annul or afreet any laws, statutes, or (n'dinances made by
tlie Lcirisiature of the said island as constituted und'M'
til" aiitlioritv of tliis Act.

9. And be it (ieclared and enacted. That nothing Act not to in-
licrciii contained shall extend or be ctmstriurd to extend i,icrog.itiveof
to taki' awa;, or diiuinisb any right or ])ri'rogative vested "'^'' -^''y^-^J-
in Her Majesty of enlarging, as to Her Majesty shall
seem meet, any fi-anchise heretofore granted by His late

I i

.,iJ;4

702 7 & 8 VTCT. c. on— ATirEST OF FT^OTTIVF.S.

[l«ll.

Majesty or licronftor to be 2:rant(»(l l)y TTcv Arajistv to
llcr ^Majesty's subjects in XetrfonndloniL

itj ' ■

Act mil fi
ftttli'l till' Act

10. And be it enacted, Tbat nolbiiii; licivin-lx-lniv
■i & M Will. A. contained shall extend or be construed to extend torcpcal
or alter the })rovisions oi" an Act passed in llic tjiiid
year ol' the reif^n of Jlis late Majesty Kini«- AVillJan ilic
Fourth, intituled " An Act to continue eeiiaiii Acts
relating? to the Island of Xofrfotr.Hlhnid, and to pntvidc
for the Appropriation of all Duties Mbich niav licieal'tcr
bo raised within the said Island."

Act inny \*'
iiiikiidcd, iVo.

11. And be it enacted, That this Ael inny he
this sosHioii. anuMuled or repealed bv anv Act to be passed (liiriin,'tliis
session of I'arlianient.

l!'

0 & 7 VICT. (18|..'i) c. :n.

Repealed by It & t5 Vict. c. (5{) s. II.

This Act provided for the apprehension and sondiiiL'
back olVenders escnpini>: in^o the United Kiiii,'(lnin, (i
vice VfVfia into the colonies. See II iV I.") Vict. c. (1!).

7 & 8 ^ICT. (ISU) c. 12.
[See Copyri<;ht Acts, posl.]

^1*

i '

7 & 8 VICT. (1811) c. (){).

Repealed as to certain M(nds ])y S. L. ]{. Atl.
1801, c. 07.

Tliis Act enacted tbat it should be competent to Hrr
Majesty in Council to provide for the ailiiiission "I

,glO.] \'J & 13 VICT. c. 90.— POWER OF ADMIRALS. 703

iinpoals to iiersolf in Council from any court within
aiiv llritish colony or jtosscs.sion abroad. Seo AppiMi-
(lix li., Judicial Conunittoi' Acts.

10 & n VICT. (1817) c. 05.
l^Sffi Copyriig'ht Acts, posf.']

12 Si 13 VICT. (1819) c. 90.

Sec. ') was, as rocjards the oxco])tion of tho possessions
oftlicEasl India Coini)aiiy fronithcojxn'ationof the Act,
ropilrd by 23 & 21. Vict. c. 88. s. 1. Sec. (i was ro-
l)(.al.'(l by S. L. II. Act, 1878, H Si 12 Vict. c. 79. Sec. 6
iVoin "and the word '(Jovernor'" to the end of the
s.-clion. repealed by S. L. 11. Act, 1881, Lt & 45 Vict.
I'. .'»!). j'reainble, and sec. 1 to " same that"; sec. 2;
sec. ;{ to "enacted, that," and tho word "that" before
"if any"; see. !• to "enacted that"; see. 5 to "en-
aelod, tliitt," repealed by S. L. 11. Act, 1891, 6t & 55
Vict. c. 07.

This was " An .Vet to provich* for tho IVosecutijm and
Trial ill Her ^lajesty's Colonies of OlVences committed
witliin the .lurisdiction of the Admiralty."

[1 Aug. 1819.]

TT"^II KIIEAS by an Act passed in the eleventh year
' * of Hie reign of Kinj^ William the Third, inti-
tuled "Am Act for the more elVeetiial suppression of nwiii. 3.
I'iracy," it is enacted that all piracies, felonies, and roh-
liiTios eonunitted on the sea or in any haven, river,
cTcek, or placo where the admiral or admirals lur. v i)ower,
nitlioiity, or jurisdiction, may be examined, inquired of,
ti'it'd, lieai'd, aiul determined and adjudijed, in any
place at sea, or upon the land in any of His Majesty's
Inlands, plantations, colonies, dominions, forts, or factories,
t'» he appointed for that purpose by tho King's commis-

11 -i ■

I ,

\ {

■ '
iili

1];

>|fffiJt>l«fWlim>lJHIl'l* WTtitrvn9^tkmM*w*t^*.

704

12 & 13 VICT. c. on— riUME n\ the ska finif

in.

'f(i

4n Geo. 3.
c. 64.

sion, in tli(> niamuM" thrrcin diroctoi!,' and accui'liii" to
tli«' civil law and tlio method and rules ol' (Im! Adminiltv
and whereas by an Act passed in the lorty-sistji v(.„i-
of the reign of fJeorge tlu' Third, inlilnled " \n Ah
for the speedy TrinI of OlVenees committed in (lislant
pnrtsupon the Sea," it is enacted, that all treasons, pjia-
cies, felonies, robberies, mui'ders, conspiiM('i(»s, and other
ofl'ences of what nature or kind so(?vei' committed upon
the sea, or in any haven, river, cr(»ek, or place wliciv
the Jidmiial or admirals have power, authority, or jmis.
diction, may he incpiired of, tried, heard, deternjiiied ami
adjudt^ed, according to the common course of the laws
of this realm used for olVenccs connnitted upon IIm'
land within this realm, and not oth(«rwise in any of his
Maj^sty'8 islands, plantations, colonies, dominions, forts.
or factories, under and by virtue of the King's eoniuiis.
sion or commissions under the great seal of Grcnl
Britain to ho directed to cojnmissioiu'rs in the nianiior
and with the powers and nuthoi-ities therein provided:
And wluM'eas it is expedient to make further and licttcr
provision for the ai)prehension, custody, an<l trial in llcr
Majesty's islands, plantations, colonies, domini ms, forts,
and factories, of persons charged with the eoinniission

' riiii.T 11 Will. ;{. c. 7. (now

r('iioiil('(I (IS to the t'oUowin;;; h\
S. li. H. Act, 1H(»7) tlifkin^j's t'oin-
iiiission, or ii eoinniission iindci- ilii>
jirciit M'lil of Kiii;liiiiil, or tlir >v\\\
of tilt' Adiniriilty of Kii^liind, nii<j:lit
be (lin'(tc(l to till or iiny of tin-
lulininils, vicc-iuliniiiils, r»'iir-ii<l-
iiiinils, jiKlpf's of vicc-iidmiriiltios,
or coiiiiiinndi'is of any ol' Ili-r
Miijt'st}'s sliip.s of war, and also to
all or any such person or persons,
ollicer or oflicors, by name, or for
tlietiinebeing, which coinmi.ssioiieis
were to ha\e power jointly or
severnlly, by warrant under their
hand and .seal, or any on(> of them,
to commit to safe ciistodv any per-
son against whom imformiition of
piracy, robU'iy, or felony upon the
8en shall be ^i veil upon oath (which
oath tbey or any one of them were

to have the I'ldl pttwcr iiinl win
reqiiiriMl to lulniinister), timl wviv
to call and iisseinble ii ciiiiil nl' nil-
mindly on shipboniil ni' ii|ii>ii ilir
iniid. which colli I niiisl ciiii^i^l nl
seven persons al the leiisl. Thill
any three ol the iiroicsiiiil ikmmii:-
(whereoi' the president, <ir (iiiffiil'
some F]nj;iisli ractoiy. or llic (in-
vernor, Jjientciiant-dovi'iiioi', w
niembor oi His Majesty's CiMiiiiil
in any of the plantation- er roliniii".
or the commander ot one of lli>
Majesty's ships was iihviivs loir
one) mi;j;ht call any |hisoii <ir |i»r-
sons to make up llie m'vcii, llir
IH'i'.sonsipialitied to sii lieiiij:i<iii'«ii
mcrchanls, fa<"tors or pliiiiti'i>. i"i|i-
tains, lieiiteiiantH, or \\aiTiuitolliiti<
of His Majesty's ships of wiii.nr
cajitains, masler.s, and iimti'snfsoiin'
Euglish shii).

isio] 12 A 13 VrCT. <•. on— CRIME OX THE SEA. 705

of such otVencos upon tlu* sea, <>!• in any such liavon,

livoi', creek, or place as nlortisaid : He it therefore

cnactf'd l>y the QuecMi's most Kx(H'llent Majesty, hy and

wifli tilt' advice and consent of the Lords Spiritual and

T('in|Mtr.il, and Ciininions, in this present Parliament

.i^scmliN'd. and hy the authority ol" the same, That if

aiiv iHTson within any c(dony shall he charij^tul wilh the

coiiimission of any treason, piracy, lelony, rohhery,

iiimdci', conspiracy, or other olVencc, of what natun; or

kind soever, ci^mmitted upon the sea or in any haven,

liver, creek, or place wheni the admiral or admii-als

liiivc power, authority, or jurisdiction, or if any person

tlmri^cd with the commission of any such olTence upon

lilt' sea, or in any such haven, river, creek, or plnce,

shall he hrouj^ht for trial to any colony, then, and in

every such case, all magistrates, justic<'s of the peace,

))iil(lic prosecutors, juries, judges, coiu'ts, puhlic oHicers All porMms

and other persons in sucii colonv, snail nave and exercise onionv wiiii

' (I'

the same jurisdiction and authorities for in(|uiring of, ",,i','||!,'|'',,','''I','',

tr\iiii,',licaring, determining and adjudgmgsuch (dVeiices

and tliey ar<' hert'hy resjx'ctively authori/ed, emj)owere(l iii''^.iiii(

and re(piired to institute and carry on all such pro- iiir,.ii;n..\ imd

eeediiigs for the hringing of such persons so charged as ,,'i'w',[',",s""""'

aliti-esaid to trial, aiul for and auxiliarv to and consc- ,""'l''."!"',.

(|iient upon the trial of any such person for any such

iill'eiiee wlierewith he may he charged as aforesaid, ashy ,,,iui,y.

the law (if such colonv would and ouyht to have Ixmmi

li.uland exercised or instituted and carried on hy them

respectively, if such olVence had heen committed and

sueli |iers(in had heen cliarged uith having committed

fill' same upon any waters situated within the limits

of aiiv such colonv, and within the limits of the local

jurisdiction of the courts of criminal justice of such

colonv,

2. Provided always, and he it enacted. That if any r">oiisc..n.
liei'son sliall he convicted hefore any such <'ourt of any ««.iu.> shiiii
such olVence, such jH'rson so convicted shall he suhject pmiisinmn'ts'
"lid liahle to, and shall sulVer all such and the s^une "'"' ''"«'""'•

S 2340. Y Y

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IMAGE EVALUATION
TEST TARGET (MT-3)

1.0

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1.8

1.25

1.4

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Photographic

Sciences

Corporation

93 WIST MAIW STRUT

WEBSTER, N.Y. 14SS0

(716) S73-4S03

V ^.

706 12 & 13 VICT. c. 96.— SEA & LOCAL JURISDIC.

[1849,

Provision for
the trial of
murder and
manslaughter
■where the
death only
happens in the
colony or upon
the sea.

pains, penalties, and forfeitures as by any law or laws
now in force, persons convicted of the same rcspoctivelv
would be subject and liable to, in case such oifence liad
been committed and Avere inquired of, tried, heard,
determined, and adjudged in Englcmd, any law, statute,
or usage to the contrary notwithstanding.

3. And be it enacted, That where any person shall
die in any colony of any stroke, poisoning, or hurt, such
person having been feloniously stricken, poisoned, or
hurt upon the sea, or in any haven, river, creek, or
place where the admiral or admirals have power, autho-
rity, or jurisdiction, or at any place out of such coloiiv,
f vpry offence committed in respect of any such case,
V nether the same shall amount to the offence of murder
or • 'T anslaughter, or of being accessory before the
faij' to murder, or after the fact to murder or man-
slai ,s;,'ht(;r, may be dealt with, inquired of, tried, deter-
mined, and punished in such colony in the same manner
in all respects as if such offence had been wholly coin-
mitted in that colony ; and that if any person in any
colony shall be charged with any such offence as afore-
said iu respect of the death of any person Avho, haviiig
been feloniously stricken, poisoned, or otherwise hurt,
shall have died of such stroke, poisoning, or hurt up(jn
the sea, or in any haven, river, creek, or place where the
admiral or admirals have power, authority, or juris-
diction, such offence shall be held for the purpose of
this Act to have been wholly committed upon the sea.

Jurisdiction of By scc. 4 it was provided that nothing in the Act
Court of New should in any way abridge the jurisdiction of the Sii-
preserved" ^^ prcmc Court of Ncw Soutli Wales and Van Diemea's
9 Geo. 4. c. 83.; j^^^ ^s established by 9 Geo. 4. c. 83.

Interpretation
of terms.

5. And be it enacted. That for the purposes of this
Act the word " colony " shall mean any island, planta-
tion, colony, dominion, fort, or factory vjf Her Majesty,
except any island witliin the United Kingdom, and the

1851.] 14 & 15 VICT. c. 03.— BOUNDARIES OF CAN. &N-.B. 7'^'

islands of Man, Guernsey, Jersey, Aklerney, and Sar:.,
and the islands adjacent thereto respectively, ai. I except
also all parts and places as are under the government of
the East India Company [see above'], and the word
" Governor " shall mean the officer for the time being
administering the government of any colony.

Sec. G only contained a power to amend the Act.

14 & 15 VICT. (1851) c. 63.

Preamble and to "as follows " repealed by S. L. R.
Act, 1892. Explained by 20 & 21 Vict. c. 34. post.

An Act for the Settlement of the Boundaries
between the Provinces of Canada and New

Brunswick. [7 Aug. 1851.]

WHEREAS certain disputes have existed respecting
the boundary line between the provinces of
Conoda and New Brunswick in North America ; and
pending such disputes certain funds liave arisen from
tlio disputed territory, and have been received 1)y the
Governments of such provinces respectively : And
whereas, with a view to the settlement of such disputes,
the Governor-General of Canada and the Lieutenant-
Governor of New Brunswick, by the advice of their
respective Councils, agreed that the matter in dispute
sjioiild he referred to arbitrators, who should be directed
to report to Her Majesty '.s Government, and that such
Governor-General and Lieutenant-Governor should each
name an arbitrator on behalf of the .said respective
provinces, and that such arbitrators should name a third
arbitrator, the award to be made by the three arbitrators
or any two of them ; and it was also agreed by such
Governor-General and Lieutenant-Gov(;rnor, with the
advice aforesaid, that the not proceeds of the funds in
the hands of the said Governments arising from the
disputed territory should be applied, first, to defray the
expenses of the arbitration, second, to defray the ne-
cessary expenses of running the (boundary) line as

Y Y 2

Act may be
amended.

708

14 & 15 VICT. c. 63.— FIXING BOUNDARIES.

[1851.

Appointment
of arbitrators
between
Canada and
New Bruns-
wick.

Award of Dr.
Lushington
and Dr. Twiss,
17th April
1851.

settled, (in case such funds should prove insufficient
the expenses to be borne equally by the respective
Governments,) and, third, the balance of such funds to
the improvement of the land and water communication
between the great falls of the Saint John and the Saint
Lawrence : And whereas, in pursuance of the agreement
in this behalf, the Governor-General of Canada named
Thomas Falconer, Esquire, to be one of the said ai'l)i.
trators, and the Lieutenant-Governor of New Brnnsirici
named Travers Twiss, Doctor of Laws, to l)e another
of the said arbitrators, and the said Thomas Palconcr
and Travers Twiss named the Right Honouraljle
Stephen Lushington, Judge of the Admiralty Court,
to act as the third arbitrator : And whereas on the
seventeenth day of April, one thousand eight hundred
and fifty-one, the said Stephen Liishington and Travers
Twiss made an award concerning the said boundary,
and transmitted the same, together with a plan therein
referred to, to the Right Honoui'able Earl Grey, one of
Her Majesty's principal Secretaries of State, and such
award is in the following terms :

" That Neiv Brunsioich shall be bounded on the Avest
by the boundary of tlie United States, as traced by
the Commissioners of Boundary under the Treaty of
JFaskington dated August 1842, from the source of the
Saint Croix to a point near the outlet of Lake Pech-la-
Avee-kaa-co-nies or Lake Beau, marked A in the accom-
panying copy of a part of plan 17 of the survey of the
boundary under the above treaty ; thence by a straight
line connecting that point Avith another point to be
determined at the distance of one mile due south from
the southernmost point of Long Lake ; thence by a
straight line drawn to the southernmost point of the
fiefs Madawaska and Temiscouata, and along the soutii-
eastern boundary of those fiefs to the south-east angle
of the same ; thence by a meridional line northwards
till it meets a line running east and west, and tangent
to the height of land dividing the waters flowing into
the River Rimouski from those tributary to the Saiiit

1851.] 14 & 15 VICT. c. 63.— BOUNDARY LANDS.

709

i .if

John ; thence along this tangent line eastward until it
meets another meridional line tangent to the height of
land dividing waters flo\Wng into the River Rimouski
from those flowing into the Restigouche River ; thence
along this meridional line to the 48th parallel of
latitude; thence along that parallel to the Mistouche
River; and thence down the centre of the stream of
that river to the Restigouche ; thence down the centre
of the stream of the Restigouche to its mouth in the
Bay of Chaleurs ; and thence through the middle of
that Bay to the gulf of the Saint Lawrence ; the islands
in the said rivers Mistouche and Restigouche to the
mouth of the latter river at Dalhousie being given to
New Brunswick": And whereas it is expedient that
the said hotmdary should be settled in conformity with
the said award : nov/, therefore, be it enacted by the
Queen's most Excellent Majesty, by and with the advice
and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by
the authority of the same, as follows :

1. New Brunstoick shall be bounded -as in the said '^^% i'"« <^t

1 > T scribed in the

award mentioned ; and it shall be lawful for one of Her award to be
Majesty's principal Secretaries of State to appoint such andtTbeset'
person or persons as he may think fit to ascertain, define, °ngiy^'^°'^'^"
and mark the boundary line between the said province
of New Brunswick and the said province of Canada^
according to the intent of the said award.

2. The net proceeds of the funds in the hands of the The funds

11 .1 . p y-v 7 1 *<^crued from

local governments of the said provinces of Canada and the dkpmcd
New Briinstcick respectively arising from the territory be™pphed°
heretofore in dispute between such provinces shall be ^hragiement.
applied according to the terms herein-before mentioned
of the said agreement concerning the same.^

' Held that the whole Bay of (Dom.) c. 60., although the offence

Chaleurs is within the boundaries complained of — drifting for ml'

of the provinces of Quebec and New mon — took place more than three

Brunswick, and within the Do- miles from either shore. See

minion of Canada, and the opera- Mowat «. McFee, 5 S. C. R. 66;

tions of the Fisheries Act, 31 Vict. 19 S. C. N. B. (3 P. & B.) 252.

I ' »■

i J

•t

! i

3 & 4 Vict.
c, 78.

710 IG & 17 VICT. c. 21.— CLERGY RESERVES. [1^53

16 & 17 VICT. (1853) c. 21.

An Act to authorize the Legislature of the Pro-
vince of Canada to make Provision ccncerninff
the Clergy Reserves in that Province, and the
Proceeds thereof. [9 May 1853.]

[See 3 & 4 Vict. c. 78.]

" TTTHEREAS the Act of the session of Pavliamont
' » liolden in the tliird and fourth years of Hoi-
Majesty, chapter seventy-eight, provides for the sale of
the lands called Clergy Reserves in the proAincc of
Canada, and for the distribution of the proceeds thereof ;
and it is expedient that the Legislature of the said pro-
vince should he enabled to make further provisions in
relation to such Reserves and proceeds :" Be it enacted
by the Queen's most Excellent Majesty, by and Avitli
the advice and consent of the Lor(' Spiritual and Tem-
poral, and Commons, in this present Parliament assem-
bled, and by the authority of the same, as follows :

1. It shall be lawful for the

Legislature of the

Power to tae

Lefjislaturo of 7 n • ■ 1

Canada to alter proviuco of Canada, f rom time to time, by any Act or
tion onhe"^'*" Acts to be for that purpose made and enacted in tlie
ferTe^and tho uaauucr and subject to the conditions required by tlie
proceeds ^q^ of tlic Said scssiou of Parliament holden in the third

thoreof, and to

make such aud fourth ycars of Her Majesty, chapter thirty-live,
visions a°s shall scctious tliii'ty-seven, thirty-eight, and thirty-niue, in
seem meet. respcct of Acts made and enacted by such Legislatnre,
to vary or repeal all or any of the provisions of the mA
first-mentioned Act of Parhament for or concerning the
sale, ahenation, and disposal of the said Clergy Reserves,
and for or concerning the investment of the proceeds
of all sales then made or thereafter to be made of such
reserves, and for or concerning the appropriation and
application of such proceeds and investments, and the
interest and dividends thereof, the interest accruing on
sales on credit of such reserves, the rent of such reserves
for the time being unsold, aud all other the proHts of or

1H54.] 17 & IS VICT. c. 118.— ALTERING CONSTITUTE. 711

accruing from such reserves, and (notwithstanding the
siiid lirsl-mentioned Act of Parliament) to make such
other provisions for or concerning the sale, alienation,
or disposal of the said Clergy Reserves and such in-
vestments as aforesaid, and for or concerning the
appropriation and application of such Clergy Reserves,
proceeds, investments, interest, dividends, rents, and
proiits, as to the said Legislature may seem meet.

2. Provided, That it shall not he lawful for the said ^ho said Legis-
lature not
Legislature, hy any Act or Acts thereof as aforesaid, to authorized to

1 1 •. e ±1 1 J.' 1 interfere with

annu^ suspend, or retiuce any oi the annual stipends or existing in-
allowances which have heen already assigned and given '""''*'''■
to the clergy of the Churches of England and Scotland,
or to any other religious bodies or denominations of
Christians, in Canada, (and to which the faith of
the Crown is pledged,) during \h.e natural lives or
incumbencies of the parties now receiving the same, or
to appropriate or apply to any other purposes such part
of the said proceeds, investments, interest, dividends,
rents, and profits as may be required to provide for the
payment of such stipends and allowances during such
lives and incumbencies.

i^ it

M i

17 & 18 VICT. (1854) c. 118.

\See B. N. A. Act, 1867, which apparently repeals

this Act.]

An Act to empower the Legislature of Canada to alter
the Constitution of the Legislative Council for that
Province, and for other Purposes. [11 Aug. 1854.]

WHEREAS an Act of the session of Parliament holden in the
third and fourth years of Her Majesty, chapter thirty-five,
' to reunite the provinces of Upper and Lower Canada, and for the Go-
veraient of Canada,' provides amongst other things for the establish-
ment of a Legislative Council in the province of Canada, consisting of
members summoned thereto by the Governor, under the authority of Her
Miijesty as therein specified : And whereas it is expedient that the Legis-
lature of the said province should b(! empowered to niter the constitution
of the said Legislative Council : And whereas the said Act requires
amendment in other respect : " Be it enacted by the Queen's most Excel-
lent Majesty, by and with the advice and consent of the Lords Spiritual

712 17 & 18 VICT. o. 118.— rOWER TO ALTER ACTS

Power to he
Lcgislaturo
of Canada to
alter tho con-
■titution of the
Li'gisliitive
Council.

Provisions of
former Acts of
Parliament to
apply to the
new I-egislative
Council.

Power to the
Legislature of
Canada to vary
the provisions
of the Act or
Acts consti-
tuting the new
Legislative
Council ;

and to vary,
&c. the pro-
perty qualift-
cation of mem-
bers of Assem-
bly.

Proviso in
Section 26 of
3 & 4 Vict.
c. 36. repealed.

and Temponil, and Coimnoiis, in tbi.s prewnt Parliament assi'inlilcd iimi
by the authority of the Hame, as foUow.s ;

1, It shall lie lawful for (he Le<;ishitnre of Canada by aiiv Act m Acts
to be luTcnfter for tliat [lurpost i>as.'*('(l, to alter the manner ot coniposiii"
the Legislative C'ouneil of the sai<l province, and to niiikc it consist (>!'
such untnber of members a;)i)ointed or to be appointed or elected liv siuli
persona and in sneh manner as to the said Legislaturt; niiiy s'cm lit ainl
to fix the fpialifieations of the persons capable of being so uppdintcd or
elected, and by sneh Act or Acts to make provision, if they shall tliiuk
fit, for the separate dissolntion by the Governor of the said Lcgisiiitivi'
Council and Legislative Asseud)ly respectively, anil for the pm'iwsc-
aforesaid to vary and repeal in such manner as to them amy seem fit all
or any of the sections and provisions of the said recited Act, KikI oCanv
other Act of Parliament now in force which relat(^ to the eoiistitiitinii of
the Legislative Conncril of Canada : Provided always, that any Bill or
Bills which shall be passed by the pr(>sent Legislative Council and A.ssciuIjIv
of Canada for all or any of the purposes aforesaid shall l)e reserved bv
the said Governor, unless he think fit to withhold Her Majesty's a<stiit
thereto, for the signification of Her Majesty's pleasure, and shall 1h'
subject to the enactments of the said recited Act of (he third and I'ouitli
years of Her Majesty, chapter thirty-five, section thirty-nine, which relate
to Bills so reserved for the signification of Her Majesty's pleasure.

2. As soon as the constitution of the Legislative Council of the pro.
vince of Canada shall have been altered under such Act or Acts so
assented to by Her Majesty as aforesaid, all provisions of the said recited
Act of Parliament of the third and fourth years of Her Majesty, chapter
thirty-five, and of any other Act of Parliament now in force relating tu
th(! Legislative Council of Canada shall be held to apply to the Legisla-
tive Council so altered, except so far as such provisions may Lave been
varied or repealed by such Act or Acts of the Legislature of Canada so
assented to as aforesaid.

3. It shall be lawfid for the Legislature of Canada from time to time
to vary and repeal all or any of the provisions of the Act or Acts ulteriu;;
the constitution of the said Legislative Council : Provided always, that
any Bill for any such purpose which shall vary the qualificatiou of
councillors, or the duration of oilice of such councillors, or tlu' power of
the Governor to dissolve the Council or Assembly, shall Ik; reserved
by the Governor for the signification of Her Majesty's pleasure in manner
aforesaid.

4. It shall be lawful for the Liegislature of Canada by any Act or
Acts reserved for the signification of Her Majesty's pleasure, and whereto
Her Majesty shall have assented as herein-before provided, to vary or
repeal any of the provisions of the recited Act of Parliament of the third
and fourth years of Her Majesty which relate to the property qualifi-
cation of members of the Legislative Assembly.

5. So much of the twenty-sixth section of the said recited Act of Parliii-
ment as provides that it shall not be lawful to present to the Governor of
the province of Canada for Her Majesty's assent any Bill of the Legis-
lative Council and Assembly of the said province by which the numter
of representfltives in the Legislative Assembly may be altered unless the
second and third reading of such Bill in the Legislative Council and tho
Legislative Assembly shall have l)een [)assed witii the concurrence of
two-thirds of the members for the time being of the said Legislative
Council, and of two-thirds of the members for the time being of the said

IHoti] 19 & 20 VICT. e. 23 —CANADA COMPANY ACT. 713

Letrislativo Asso.mbly ivs[)i'('tivcly, mid that the iissi'iit of Her Majesty
slmll not •>' given to any siieli Bill uiiIo.hs U'ldiVHses .shall have been
pivsciited by the Le^isliitive Couueil and the Legislative Assembly respee-
tivclvtothe Governor stating that such Bill has been so passed, is hereby

repealed.

6, The forty-second seetion of the .said recited Act of Parliament, Section 42 of
niovidiiig that in certain cases Bills of the Legislative Council and 3 & 4 Vict.
Assembly of Canada shall he laid before both Hon.ses of Parliament of ^- '^''- ^'^P"'"'"!.
the United Kingdom, is hereby repealed ; and, notwithstanding any-

lliing in the said Act of Parliament or in any other Act of Parliament
coiitaiui'il, it diall be lawful for the Governor to declare that he assents
in Her Majesty's name to any Bill of the Legislature of Canada, or
for Her Majesty to assent to any such Bill if reserved for the significa-
tion of her pleasure thereon, although such Bill .shall not have been laid
iuioie the .said Hon.ses of Parliament ; and no Act lieretofore pas.sed or
to lie pa.ssed by the Legislature of Canada tihall be held invalid or
ineffectual l)y reason of the same not having been laid before the said
HoiLses, or by reason of the Legislatix (i Council and Assembly not having
piesented to ♦he Governor such address as by the .said Act of Parlia-
ment is required.

7. That in this Aiit the word " Governor " is to be understood as Interpretation
comprehending the Governor, and in his ab.senee the Lieutenant-Go- of terms,
vernor, or person authorized to execute the office or the functions of the

Governor of Canada.

18 & 19 VICT. (1855) c. 91.

Sec. 16 amended l)y 25 & 26 Vict. c. 63. s. 22. Sec. 13
repealed by 34 & 35 Vict. c. 110. s. 12. Sec. 11 amended
by 35 & 36 Vict. c. 73. s. 3, and as regards a few words
by S. L. II. Act, 1892, c. 19.

An Act to facilitate the erection and maintenance
of Colonial Lighthouses, and otherwise to
amend the Merchant Shipping Act, 1854.

[14th Aug. 1855.]

This Act was repealed and embodied in the Merchant

Shipping Act, 1894, 57 & 58 Vict. c. 60. As to

colonial lighthouses, see ss. 670 to 675 inclusive. [aS'^^

post.]

19 & 20 VICT. (1856) c. 23.
An Act for granting certain Additional Powers and
Authorities to the Canada Company.

[23rd June 1856,]

WHEREAS by an Act of Parliament passed in the sixth year of
the reign of his late Majesty King George the Fourth, intituled,
' An Act to enable His Majesty to grant to a Company, to be incoi-porated 6 G. 4. c. 75.
hy Charter, to be called " The Canada Company," certain Lauds in the

■'I '!

[;• t.

711 in & 20 VICT. c. 23.r-CHARTER OF CAN. CO,

[IHSO.

("hartiT, (lilted
19 August.
(7 O. 4.)

Proviiiff ol' I'jtper Cunatia, and to invcMt the wnid Company with ecitain
Powers and Privileges, an<l for otiier Purposes relatinj; thereto ' it wns
enactx'd that in case liis then Majesty should, within three years nftci' tin.
passing of the Aet now lieinj; recited. In- pleased, hy eharter of incoiiioni-
tion under the f^reat seal of Great lirilaiu and Ireltiinl, to deelnrc mihI irmnt
that sueh and so many persons as should be named therein, and iilT uiid
every such otlier person or persons as from time to time should he dnlv
admitted mend)ers into their corporation, should be a body politic and cor-
porate by tile name of ' The Canada Company,' and to decline tlmt liic
said corporation so to be made and created should be establisiied lor tlio
purpose in the stiid Act mentioned, and for such other lawful puriioscs
as to His Majesty might seem meet, then and in that case His Majpstv
should be authorized to grant to the said corporation certain hinds tluivli:
mentioned, and the said corporation should have certain powers and
privileges therein s}M!eified : And whereas by letters patent under the
great seal of Great Britain and Irelah.J, bearing date at }t\st minster
on the nineteenth day of August in the seventh year of the reii;ii of liis
late Majesty King George the Fourth, and in all respi^cts in accordance
with tlie said Aet, his said Maje.sty was pleased to grant and declare tlmt
certain persons in such charter named, together with such nnd so inanv
other iM-rson or persons, bodies politic or corporate, as had heeonie or
should at any time tiioreafter become sub.scribers or shareholders of or
for the capital stock thereinafter mentioned, in manner thereinafter pro-
vided, and their respective successors, executors, adniinistiiitors, ami
assigns, should be one body politic and corporate by tlie naiiic of 'Tiic
Canada Company,' and by that name should have perpetual succcsiiioii
and a common seal ; and by the sjvid charter it was deelaied, that tlio
said corporation was established for the purpose of purchasing, iioidinf;,
improving, clearing, settling, and disposing of waste and other lands in
the province of Upper Canada, and for making advances of caiiiti.l to
settlers on such lands, for the opening, making, improving, and main
taining roads and other internal communications, for the benefit thereof,
and for promoting the cultivation of such articles as could advantagcouslv
be exported from the >aud province, and for the other purposes therein-
after mentioned, and that the present capital or joint stock of the (<aid
company to be used and applied in establishing and carrying on the said
undertaking and for the purposes aforesaid should be a sum of not ex-
ceeding one million pounds sterling, to be raised in shares of one hundred
pounds each ; and in the said charter provision was matle and power given
for the transfer and sale of shares in the company, and for making calls
thereon, and also for holding general courts and special general courts of
the proprietors of the said company, and for electing or appointing from
time to time a governor, deputy governor, and directors and other ofticei's
of the said company, and for managing and directing the affairs of the
company, and, if neces.sary, for raising additional capital ; and it was bv
such charter declared, that all sums of money piud and received in re-
spect of the shares of the said (company, together with all acquisitions or
investments whatsoever, whether real or personal, whether vested in tlie
said company iu their own name or in the names of trustees, or in what
manner soever the same should be vested, should form and constitute the
joint or capital stock of the said compiiny and their successors for ever,
and should be liable and answerable for the debts, liabilities, and engage-
ments of the said company ; and further, that it should be lawful for the
said company, not only to purchase, take, hold, sell, let, and dispose of
all such lands in the provinces of Upper Canada and Lower Canada as
aforesaid, and more espt^iallv •■.iiy such lands as should be granted bv
his Majesty in virtue of ln8 Royal prerogative or by the authority ot

1850,]

19 & 20 VICT. e. 23.— CHARTER OF CAN. CO.

715

I'arliiiiiii'"') Imt also to coutmct for, hiirgiiiii, puichiiMt!, iind ex|)ort all
siicli mt'rcliiiiuliscH, nmtter.s, and tliiiif^s as mifjlit be iiccessary or cori-
vciiifiit t'i)i' till' cultivation, cli-ariiif^, or iniproveiniint of the lands wliieli
iiiicrlit bo [luichased l»y the said coiniJany, and should also lie cniitowcrod
III Import nnd receive, and to sell and (lis[)0sc of, all floods and nier-
flmmlise wliicii niif^ht l)e consigned or remitted to them from such their
hinds in payment or satisfaction of any rent or purchase money arising
from tiiP ot'ciii)ation or sale of an}'*siich lands, and to receive and nego-
tiiiti' in England hills of exchange, promissory notes, or other negotiable
securities lor money, which might be remitted to them on account of any
siieli rent or purchase money, and also to purchase, take, hold, sell, and
dispose of all lands, tenements, and hereditaments situate in Great
HriUtin and Ireland or in the provinces of Upper Canada and Lower
Canadii, or elsewhere in His Majesty's dominions, which it might be
mressttiy or convenient for the said company to acquire, in order to the
t'linviiig the purposes of such charter into more complete effect ; and
further, that interest, calculated to the tenth day of July one thousand
light huniireil and twenty-six, should, within one month from the date
of the siiiil charter, be jjayable to the members of the .said company, at
iuiil aftei' the rate of four per centum per annum, from the respective
piritxls at which the deposit and subsequent calls (if any) on their shares
should have been paid, to be calculated upon and in respect of such de-
jMisit and calls, and on the tenth day of January and tenth day of Jidy
one thoasand eight hundred and twenty-seven, and on each and e\ery
tenth day of January and tenth day of July until and ending with the;
ti'nth day of January one thousand eight hundred and thirty-one, further .
interest at the like rate should be calculated and become payable to the
siiid members upon the said deposit and upon the amount of the several
eiiils which shoidd have been made upon and paid by them, and from
and after the tenth day of January in the year one thousand eight hundred
and thirty-one it should be lawful to and for the court of proprietors,
twice in every year, in the stud months of June and December, if the
state of the affairs of the said company should warrant the same, to de-
clare such dividend to and amongst the members of the said company for
the half-year ending on the tenth day of July and the tenth day of
January next succeeding such respective general court as to the said
court of proprietors should appear proper, in addition to such payment
of interest as aforesaid ; and that in declaring such dividends respectively
due regard should be had to all the debts and engagements of the said
company, and the risks and contingencies affecting their assets and
securities, and so as no dividend or interest after the said tenth day of
January one thousand eight hundred and thirty-one should be in any
case paid out of the capital of the said company, or othenvise than as
a division of the whole or part of the gains and profits of the said com-
pany : And whereas an Act of Parliament was ijassed in the ninth year
of the reign of his said late Majesty King George the Fourth, intituled
'An Act to alter and amend an Act for enabling His Majesty to grant 9 Gr. 4. c. 61.
to a Company to be incorporated by Charter, to be called the Canada
Company, certain Lands in the Province of Upper Canada,' and thereby
certain additional powers were given to the said company : And whereas
the sum of thirty-two pounds ten shillings per share has been paid up on
each share, and the paid-up capital of the said company now consists of
the sum of two hundred and eighty-nine thousand seven hunch'ed and
thirty-seven pounds ten shillings, divided into eight thousand nine hun-
dred and fifteen shares : And whereas lands in the province of Upper
Canada to the extent of two millions four hundred and eighty-four
thousand four hundred and thirteen acres were purchased by the com- \j

716

in & 20 VICT. o. 23.-('AN. COY. POWEWS.

[1H5I1,

Short Title.

For asccrtrviii-
iug M'hat shnll
bu (lecinod to
be the capital.

For ascertain-
ing what shall
bu deemed pro-
lits of the com-
pany.

No further
part of capital
to be called np.

|Miny, who t'XpciuU'd lMi'<;t' sums in improviii'; tlm snnic, iiini a (■oii>i(||.|..

alilc portion ol' .hik'Ii Iniids Imvc liccii sold iit pi'it't'sconsidciiililvi'x li,,,,

tlic moneys expended in pureimsinjjj tind impidvin;; di,. mh",,,, i^h ||^^
vulno of tlie unsold portion of siieii liinds vei'v fnr exceeds the nniiiiini ,,f
the paid-np eiipital of the eompnny, and of idl the lial(ilities df t'lc ((nii.
pany, an<l the company hold morlf^a<;es an ' other seeurilics for i.,,,,!,
Hohl or eontraeted to he sold, and for otlau' moneys o\vin<,' to llicni. aii,|
other seein'ities for money : And \Hiereas (htnlits liave arisen wlntlur
the eompanv can divide as pi'olit the wiiole of the moneys niisiii" lioin
the sale of lands in wliieh the moneys of the eom[)any ha\e liecn invotcd
and it is desiralile that such doiihts should he removed, and tiiiit smli
additional powers as after mentioned sliould he ;;iven to tlic ('(iniiinm ■
And whereas it is not in the contemplation of the cominny to |iiiic||;i«,.
ndditioiud land : And wiiereas such objects and purposes as iitoiiNij,!
cnnnot Ik( eft'ectnally carried into effect without the authority of I'nHia.
nicnt :" May it therefore please your Majesty that it nuiy lie (imctcil;
and be it enacted hy tlu' Queen's most Excellent Majesty, by iiihI wiili
the advice and consent of the Loi'ds spiritmil and tempoiai, anil ('inn.
uions, in this present I'arlianient assembled, and b-, the auliioiitv uf ili,,
same, as follows ; (that is to say),

1. In citing this Act for any purpose whatsoever it shall siillicc to ii>i'
the expression, " The Canada Company's Amendment Act, IH.JG."

2. For the purpose of ascertaining; the funds ai>plicable to be tjiviiliij
among the proprietors of the company as and by way of dividend, iiinlir
tlie provisions of the said charter of incorporation, it shall be Inwriii |i,r
the coiu-t of directoi's of the said company from time to time to set ii|iiiii
or reserve such part or parts of the lands of the said comiHuiy, wlutlur
contracted to be sold or not, and such part or parts of the ni()rl<;ii(;iN uml
other securities for money for the time being held by the siiid coniiiiiiiv,
a.s they in their judgment shall deem to be sulHciont, having rt'f,'iinl io
th(! val'ie of the said lands, mortgages, and other securities, to hv nsiir-
tained by such estimates or valuations as to the said court of diivcKn*
shnll be satisfactory, to answer the said sum of two hundred imd cIl'IiIv-
nine thousand seven hnndred and thirty-seven [)onnds ten sliiliings. nnJ
from time to time to altei- and vary the lands, mortgages, and sci'iiritirs
so set apart, for others, and without prejudice to the right of the criiii-
pany to realh^e and sell the same or any part thereof, and tin- liiiiJ,
mortgages, atid other seciu-ities, for the time being remaining so set iiiMit
and reserved, and the proceeds thereof, shnll for the })urpos('s iifoivjiiid
be deemed to be and to represent the capital of the company.

3. All moneys to nrise from the annual rents and profits of the lauJ*,
and from the interest and profits of the mortgages and other sciuiitie*
of the company, inchuling the lauds, mortgages, and securities, for tlic
time being so set apart and reserved, and all the moneys to arise and lie
received by sale or otherwise for and in respect of all other the laiid>,
property, and effects of the company, other than and except wliut iiiidir
the provisions of this Act shall for the time being be set apart as rcpie-
senting the capital of the company, shall for all intents and ])iHpo«e< t»'
treated as gains and profits of the company, and, after deducting and n-
tjiining thereout so much as may be necessary to meet the debts iiiiJ
liabilities of the company, the residue thereof shall be applicable towiirl'
payment of interest on the paid-up capital of the company, lunl tk
dividends from time to time to be declared on the shares therein.

4. It shall not be lawful for the directors to call up any further pm
of the subscribed capital of the company.

ip any further pan

18,',(],] 10 & 20 VICT. <!. 2.1.— CAN. COY. PROFFTS.

717

5_ It sliiill 1m' lawful for the jjiopriftors of tlio cninpiuiy, itt a H|K'cial Power to wind
„,,ii('nil ('(iiirt callcil for tlic purpose, liy a resolution to Im piisseil hy a "I' »'iil (IIhsoIvo
n;;ii()iitv iif votes <;iveii at sueii court liy pro[)riet()rs duly ((ualified to '"inpiuiy.
Miti' iiii'l iii'i'iii'diiiji to the nuiuhei' of shares held liy tiieni res|>i'eti\eiy,
III iici'onlniice wilii the provisions of tlie said charter, to direct that the
iillairs of the said company sIimI! lie wound uji, and that the coin[)aiiy
>li,'ill III' inssiilv('(l, whicii resolution shall he suhiiiitted to tiie pi'oprietors
111 a siihseipieat special jj;eneral court to he also speciidly called fur the
piiilidsc, Mild iield lit tin interval of not less than one calendar month nor
iimrc tliiiii tun cideiidiii' months fiom the special ;.;oneral court at which
llh- ii'siihilion shall hvne passed ; and such second spei''al fjeneral court
sliiili, if rcipiired hy any nine [iroiirictors present thereat, he adjourneil
Inn time Mild place to he then appointed hy the ehiiirni'in, for the piir-
iiiisi' riiilv di' tiikiiij; the votes of the priiprietors on such resolution ; ami
ill ciisc the siiid resolution shall lie coidirmed hy a miijority of the votes
ilivt'ii lit siicli second special <^enei'id court or adjuuriied f^eiierid court, as the
iiN' iniiv lie, hy proprietors duly (pialiiieil as aforesiiid, the directors of
lliiiiiiiipiiiiy sliiill with all convenient .speod [jiiy anil discharge all deht.s
ami iiiiliilities of the eomiiany, and sell and convert into money the land
ami otlicr pi'n|ierty of the conipHuy then i'emainin<j undisposi'd of, and
Iniiii tiiiii' to time distriiiute the moneys arising from such sales ami coii-
virsiiiii, ami the other moneys from time to time in their hands, amoiig.st
the slmreiiolders of the com[)any, either hy way of interest and di\i-
lii'iids, or hy way of return of caijital, according as the |)roperty f -...i
wliii'ii siicli iiiiineys shall have arisen ought to he treated as gains and
piolits or cMpitid of tin' <-wiiipnny.

coiiti.iui' until
tlu' sainc is
Wdiiml up.

6, Nutwi,, ;aiiding such resolution for winding u]i the affairs of the I'dwirs of ihc
ciiiiiiiany slnill have heen pas.sed at su(!h two general courts as aforesaid, lomiiany to
llii' t'oiiipiuiy shall remain incorporate'! I ; iind all ami every the powers
anil authorities which hy this Act and the saiil recited Acts, or any of
tiioiii, or hy the said ehurter, are given to the compimy, or to the dirife-
toi's iir other otlicei's thereof, or to the general courts or special general

courts of jiroiirietors of the company, shall, subject to the restrictions
contaiiK'il in this Act, remain in full force, and the shares in the said
comiHiny slmll continue transferable, and int(>rest and dividends shall l)o
liayalile, imil tli'^ directors and other otficers of the company .shall con-
tinuo to he appointed, until the passing such resolution as after men-
tioned.

7, In ease any resolution for winding up the affairs of the company Diroctors to
siiaii Ik' [iiissed tit such two general courts as aforesaid, then and in that '''''"•or final
mse, wiii'ii and .so soon as all the debts and liabilities of the company ''|.""'? .'1'')!'''''
shall liiive heen paid and satisfied, and all the assets thereof shall have ^

Ik'i'ii I'dilizcil, and divided aniong.st the shiireholders in the compuny, the
(liieetors .shiill make out a final bahince sheet of the affairs of the company,
anil suhniit the same for the approval of a general court of proprietors
specially culled for the purpose of considering and approving such
lialauce sheet, and for authorizing the final dissolution of the comi)any ;
iinil if such general court shall, by a resolution passed thereat by a
iiiiijmity of votes given in accordance with the provisions of the said
cliart(M', approve of the said balance sheet, and authorize the final dis-
solution of the company, the company shall as on the day after the pass-
ing; of such resolution be dissolved.

8, This Act shall extend to and l)e in force in the said province.s Public Act.
of Upper Canada and Lower Canada, as well as in the United King-

[ :'S f P '

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^ IN''.

1 1

— ■ '1; .

i il ((liliil:

;TOrnnaHwi>t»«.inmiTO»i-nt..^.

Kxpenso.s of
Act.

718 20 & 21 VICT. c. 31.— (1AN. & N. B. BOI^NDARY. [185;

(loin of Great Britain iind Ireland, mid sliiill be jiidiciiillv taken ii()ti((,
of as such by all jiidgt's, justices, and others, in the siiid provinces a-

well as ill
pleaded.

the United Kingdom aforesaid, without

pioiiiiccs as

9. The costs, charges, and expenses of and incident to tlic olitainin"
and pa nig of this Act shall be [laid by the company. ''

]l !!

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14 & 15 Viot.
c. 63.

20 & 21 VICT. (1857) c. 3 k

Proamhlo and to "of the f<amo," and in soc. ] rlio
word " Tliat," rcpoalod l)y S, L. 11, Act, 1892, 55 & oO
Vict, c. 19, [See 1 1. & 16 Vict. c. 03. otite.']

An Act to explain an Act for the y(3ttlcinent of
Boundaries between the Provinces of Cmuuh
and Ncio Brunswick. [10th Aug. 1857.]

WHERIilAS by an vVct passed in tlu> fiftocMith year
of the rois^n of Her Majesty, intitiil<Ml ' An Act
for the Settlement of the Eonndaries of tlu^ Provincos of
Canada and Neic Brunswick,' it is provided tliat AV/c
JBrnnsu'icIc shall he hounded as is nKnitioned in a
certain award made hy Stephen Lnshino'ton, jnd^c of
the Admiralty Conrt, and I'ravers Twiss, Doctor of Liuvs,
A\hieh award, as recited in the said .Vet, declares (among
otlier things) that N'cft' Jirtinsnick sliall l)e hounded from
a meridional line therein descrihed along the foi'tv-
eighth jiaralhd of latitude ' to tlie Mistouche Kivev, and
thence down the centre of that stream to the Rt^stigoiicho,
the islands in the said river Mistouche and R(^stigouclio
to the moutli of the latter river at Dalhousio l)cing
given to New Brunswick '; And whereas certain doubts
have arisen respecting the true meaning of the said
award in the parts above recited :" Be it tlioiol'oic
enacted by the Queen's most Excellent Majesty, by and
with the advice and consent of the Lords Spiritual and
Temporal, and Commons, in this present Parliiunent
assembled, and by the authority of the same :

1857.] 20 & 21 VICT. c. 3D.— COL. ATTYS. & ENGLAND. 719

1. That the river named in the said award the " River
MistoucUo " shall he taken to be the stream which
crosses the forty-eighth parallel of latitude, and from
thence flows into the llestigouche, and Avhich stream is
otherwise called the " Patapedia."

" Kivor

Mistouc'he''

ili'tiiii'd.

20 & 21 VICT. (1857) c. 39.

Sec. 4 amended by 37 & 38 A^ict. c. 41. The Act was
extended by 47 & 48 Vict. c. 24. Sec. 5 in part (as to
certain Avords) repealed hy 51 and 52 Vict. c. 65. s. 20.
Preamble and to "as follows"; sec. 3, from "and en-
rolled," whore those words last occur, to " Etiylatid
and," and the worJs "of Chancery"; sec. 4, the Avords
■'attorney or," Avhere they first occur; sec. 5, the words
"to act as," Avhere they first occur; sec. G, the Avords
"an attorney or," " attornies or," and " as the case mav
be"; sec, 7, the words "attornies or," rej)ealed hy
S. L. 11. Act, 1892, 55 and 5G Vict. c. 19.

An Act to lleguiate the Admission of Attornies and
Solicitors of Colonial Courts in Her Majesty's Superior
Courts of Law atid Equity in England in certain cases.

TTJ HEREAS in certain of Her Majesty's colonies and dependon-
VV cies, including certain parts of tiie territoi'ies inider the govern-
ment of tlic East India Company, the system of jnvisi)rudence is fotnided
on 01' assiiuiliited to that administered in Euijhind^ and tlie attornies and
solicitors of the superior courts of law and equity in England are ad-
niitti'd iis iiltornies and solicitors in the courts of law and equity of such
colonics iind (lei)endencies, on production of their certificates of admission
in the English courts aforesaid ; and it is considered just and expedient
toiifford liii'llities to the attornies and solicitors of the superior courts
in c'crtiiiii colonies and dependencies for obtaining admission in Her
Majesty's courts of law and equity in Eiiijltind. Be it therefore enacted,
c^c, as iollowsi; —

By sec. 1, the Act was to be cit«d as "The Colonial Attornies'

Relief Act."

By see. 2, the Act was not to come into operation in any colony or
dependency until an Order in Council.

By sec. ,3, all perso^.^ who, lieing subjects of the British Crown,
have been or shall hereafter be didy admitted and enrolled as attornies
and solicitors in the superior courts of law and equity in those of Her
Majesty's colonies or dependencies where the system of jurisprudence is
founded on or assimilated to the common law and principles of equity as

y- \

720 20 & 21 VICT. c. 39.— THE BAR IN CANADA.

[1«57.

)! ! . ,!,

administered in Etifflaiid, nud where full service under artielos of vhvV
ship to an attorney-nt-law for the space of five years at iciist, nnd mi
examination to test the (lualification of candidates, are or niav he ic
quired previous to such admission, save ordy the case of persons nv-
viously admitted as attornies or solicitors in the superior courts, ii'. ii
Eiu/laiid, such colonies or dependencies to be from time to tiiiics|)pciti|.||
in and by Order in Council, as after provided, shall and niav lie adniittcil
and enrolled attornies in the co\u-ts in Enifland^ and solicitois in tlic
High Court of Chancery in England, subject as after provided.

By see. t [^sce 37 and ''S Vict. c. 41.], no person was to bo (IfPincil
rpmlified to be admitted as attorney or sidicitor under the provisions of
this Act unless he should pass an exanwiiation, and should produce of
such examination a certificate from the presiding judge of tlie .'iiiiHTioi'
court of common law in the colony or dependency whore such iicison
had been admitted an attorney and solicitor, and .stating the anioiuit of tlic
.stamps which had been paid by such per.son on his articU's of clcrksiiip
and admission to practise in such colony, ilc, in the foi'ni as contained
in a schedule to tlie Act ; and should further make an afiichivit in siicli
manner as provided by the judges in Eiiffland X\\m he was resident within
the juri.sdiction of the courts in Eut//aiid, and that he ha<l ceased for
twelve months to practi.se as an attornev or solicitor in any coloniid
court of hiw. [This la.st was repealed by 37 and 38 Vict. c. 11.]

By sec. o, when any person shall seek to be admitted as an attonuv
or solicitor, or as an attorney and .solicitor, the common law and C'([nitv
judges in Eiif/laiid and the Master of the It oils might appoint exaniincis
and make orders for conducting examinations, and if by such cxiiniinii-
tion any of the judges of the courts of common law should lie satisticdof
such person's fitness, then any one of tlie s^aid judges had authoiitv to
administer to .such j)erson the oaths by law recpiired to be adniinistcicii
to attornies, &c., in Enghiitd, which admission was to be written on paicli-
ment signed by the judge and stamjjcd witls the stamps after mentioned.

By .'<ec. 0, on the admission of any person as an attorney or solicitor
the stamp duties on admi.ssion of any [lerson under the Act were to lie
the .stamps retpiired to be impressed on the admission of attoniips or
.solicitors in EiKjtaud (as the case may be), and the admission tiiM
obtained was to be impressed with such further stamp as should, to-
gether with the amount of stamps paid on articles of clerkshi|) imd
admi.ssion in the colony, be eipial in amount to the sum by law payaliic
on aiticles of clerkship iu England.

By sec. 7, Her Majesty may from time to time by Order in Council
direct this Act to come into operation as to any one or more of Her
Majesty's colonies or dependencies, and tlu reupon, but not otherwise,
the provisions of this Act were to apply to sucJi pei'sons as wciv duiv
admitted as attornies and solicitors in the superior courts in su(li colo-
nies, &c. But no such Order in Council .shall be made iu respect of luiy
colony, except upon application made by the Governor or person exer-
cising the functions of Governor of snch colony or dependency, and nntil
it shall be shown to the satisfaction of Her Majesty's principal Sece-
Uiry of State for the Colonies, that the system of jurisprudence as iid-
ministered in such coh^ny, Ac, and the (pialification for admission ns iin
attorney or .solicitor in the 8Ui)erior courts of law in such colony, kv.,
answer to and fulfil the conditions specified in sec. 3 above. And
also that the attornies or solicitors of the superior courts of law and

1857.] 20 & 21 VrCT. c. 39— THE BAR l^ CANADA. 721

equity in England are admitteil as attornies and solicitors in the
superior courts of law and equity of such colony or dependency
production of their certificates of admission in the English courts, w
out service or examination in the colony or dependency.^

on
with-

1 In Canada it is possible for a
solicitor to bo also a barrister, antl
rice versa, and the two professions
are generally combined.

Eueh province has its own law
society. The conditions regulating
the legal profession are arranged '>y
these societies and by the provin-
cial legislatures. In every case it
is uecessiu'y to obtain authority to
practise from the local society.
The formalities to be observed, and
tiie fees to be paid (which are
moderate), may be ascertained on
arrival, Where not otherwise men-
tioned, n barrister wishing to be-
come a solicitor, and vice versa,
must follow the usual conditions
prescribed for residents in the va-
rious provinces.

Quebec. — The difference be-
tween the English law and the old
French law prevailing in Quebec
ohviously precludes any British
legal practitioner being admitted to
practise in this province without
having passed through the usual
course of study and examination
provided by the Quebec Law So-
ciety.

Ontario. — A British barrister
may be called, upon furnishing
proof of his call and good stand-
ing, and upon passing sueli ex-
aminations as may be prescribed.
If in actual practice in Ontario for
three years, he may be admitted as
a solicitor. A solicitor nuiy be
called to the bar if he has had
actual practice in Great Britain,
upon passing certain examinations,
varying with the length of time
he has been in practice ; and if he

has had five years' practice, or lias
served one year with an Ontario
solicitor, he may be admitted as a
solicitor upon passing the usual
final examination.

Nova Scotia. — Barristers are
admitted to practise in Nova Scotia
upon filing satisfactory certificates
of status, and solicitors upon filing
certificates and passing an exami-
nation.

New Brunswick. — Solicitors
must serve for one year before
being admitted as attorneys, and
at the end of an additional year
may be called to the bar.

Prince Edward Island. —
Barristers and solicitors may he
admitted after twelve months' resi-
dence previous to filing an appli-
cation for permission to practise
in Prince Edward Island.

Manitoba. — Barristers may be
called in Manitoba upon producing
evidence of call and .stiuiding. So-
licitors are admitted to practise on
passing an examination on the
statute law of the province and
practice of the provincial courts.

North-West Territories. —
Barristers and solicitors are permit-
ted to practise on becoming resi-
dents in the territories.

British Coltmbia. — Barristers
may be called to the bar, and so-
licitors admitted to practise as such,
after a residence of twelve months
in the province, and parsing an ex-
amination upon the statute law of
the province and the practice of
the provincial courts. [»See Official
Handbook.]

■ !

' I

21 & 22 VICT. (]858) c. 99.

Sec. 1 repealed by 26 & 27 Vict. c. 83., and Act con-
tinued; whole Act repealed by 29 & 30 Vict. c. 67. s. 9 ;
(tnd S.L.ll. Act, 1878 ; and see 33 & U Vict. c. 66.

S 2340.

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III

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■IHm

ffiwi

IIhI

nffl

Boundaries
of lii'itisli
Columbia.

Her Majesty
by Order in
Council may
make or pro-
viiK' for the
making of
laws for tho
goverinni'nt of
Ilor Majesty's
subjects and
others in
British
Columbia.

722 21 & 22 VICT. c. 90.— B. C, GOA^EENMENT OF. [isjn

An Act to provide for the Government of British
Columbia. [2nd Aug. 1858.]

" T"17 IIEREAS divers of Her Majesty's sul)jocts and
* * others heave, hy the hcense and consont of Hoi-
Majesty, resorted to and settled on certain wM and
unoccnpied territories on the north-west coast of Noiik
America, commonly known hy the desif^nation of Xew
Caledonia, and from and after the passing of this Act to
he named British Columhia, and the islands adjacent.
for mining and other purposes ; and it is desiraljle to
make some temporary provision for the ci\il govern-
ment of such territories, vmtil permanent sottloraents
shall he thereupon established, and the iuiinl)ci' of
colonists increased:" Be it therefore enacted l)y tlic
Queen's most Excellent Majesty, hy and Avith the advice
and consent of the Lords Spiritual and Temporal,
and Commons, in this present Parliament assembled, and
by the authority of the same, as follows :

1. British Columhia shall, for the purposes of this
Act, be held to comprise all such territories within
the dominions of Her Majesty as are bounded to tho
south bv the frontier of the United States of Americo.
to the cast by the main chain of the llocky ^loimtains,
to the north by Simpson's Uiver and the Einlay Branch
of the Peace lliver, and to the west by the Pacitic
Ocean, and shall include Queen Charlotte's Island, and
all other islands adjacent to the said territories, except
as herein-after excepted.

2. It shall be lawful for Her Majesty, by any order
or orders to be by her from time to time made, with
tho advice of her Privy Council, to make, ordain, and
establish, and (subject to such conditions or restrictions
as to her shall seem meet) to authorize and empower
such officer as she may from time to time api)oint as
Governor of British Columbia, to make pro^"ision for
the administration of justice therein, and generally to

1858.] 21 & 22 VICT. c. Of) -CRIME TTST INDIAN" TER. 723

make, ordain, and establish all such laws, institutions, and
ordinances as may be necessary for the peace, order, and
ffood government of Her Majesty's subjects and others
therein ; provided that all such Orders in Council,
and all laws and ordinances so to be made as aforesiiid,
slmll be laid before both Houses of Parliament as soon
as conveniently may ])c after the makincf and enact-
ment thereof respectively.

3. Provided always, That it shall be lawful for Her "'''• Majesty

"• •' , , may establish a

Majesty, so soon as she may deem it convenient, by any locni Legisia-
sucli Order in Council as aforesaid to constitute or to Columbia,
authorize and empower such officer to constitute a
Legislature to make laws for the peace, order, and good
government of British Columbia, such Legislature to
consist of the Governor and a Council, or Council and
Asseml)ly, to be composed of such and so many persons,
and to he appointed, or elected in such manner and for
such periods, and subject to such regulations, as to Her
Majesty may seem expedient.

4. " And whereas an Act was passed in the Certain pro-

^ visions of

forty -third year of King George the Third, intituled 43 Geo. 3.
'An Act for extending the Jurisdiction of the Courts i"&2'glo. 4.
of Justice in the Provinces of Lower and Upper Bridshcdum!
Canada to the Trial and Punishment of Persons guilty ^''* "i"^"'"'-
of Crimes and OfEences Avithin certain Parts of North
America adjoining to the said Provinces :' And whereas
by an Act passed in the second, year of King George
the Fourth, intituled * An Act for regulating the Fur
Trade, and establishing a Criminal and Civil Juris-
diction within certain parts of North America,''
it was enacted, that from and after the passing of
that Act the vJourts of Judicature then existing or
which might be thereafter established in the province
of Tipper Canada should have the same civil jurisdiction,
power, and authority, within the Indian territories and
other parts of America, not within the limits of either
of the j)rovinces of Lower or Tipper Canada, or of any

z z 2

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72 1 21 .^ 22 VICT. 0. 99.— TRIAL OF MURDER CASES, [igg^

civil £?oA-(>rnmont of tlio United States, as the s<ai(l
courts had or were invested with within tlic limits of
the said provinces of Lower or Upper Canada respec-
tively, and that every contract, agreement, deht, liability
and demand made, entered into, incurred, or arisin'»
Avithin the said Indian territories and other parts of
America, and that every wrong and injury to the person
or to property committed or done within the same
should be and be deemed to be of the same nature, and
be cognizable and be tried in the same manner, and
subject to the same consequences in all respects, as if
the same had been made, entered into, incurred, arisen.
committed, or done Avithin the said province of Ui)i)er
Canada ; and in the same Act are contained pi'ovision.si
for giving force, authority, and eifect within the said
Indian territories and other parts of America to tlic
process and acts of the said Courts of Upper Canada ;
and it was thereby also enacted, that it shouh Ijc laAvful
for Ilis Majesty, if he should deem it conveniLii*^ so to do,
to issue a commission or commissions to any person or
persons to be and act as justices of the peace, Avitliiu
such parts of America as aforesaid, as well within any
territories theretofore granted to the Company of Adven-
turers of England trading to Sudson's Bay as within
the Indian territories of such other parts of Amerku as
aforesaid ; and it was further enacted, that it should be
lawful for His Majesty from time to time by any com-
mission under the Great Seal to authorize and empower
any such persons so appointed justices of the peace as
aforesaid to sit and hold courts of record for the trial of
criminal offences and misdemeanors, and alio -^^ • .'I
causes, and it should be lawful for His Majc- ^ ' ''
direct, and authorize the appointment of ijrc }e; ■110??
to act in aid of such courts and justices xA tlii^
jurisdiction assigned to such courts and justices in auj
such commission, provided that such courts should not
try any offender upon any charge or indictment for any
felony made the subject of capital punishment, or for
any offence or passing sentence affecting the life of

1858.] 21 & 22 VICT. o. 99.— RIGHT OF APPEAL TO P. C. 725

aiiv offondor, or adjudge ov cause any offender to suffer
capital punishment or transportation, or take cognizance
of or try any civil action or suit in which the cause of
such suit or action should exceed in value the amount or
sum of two hundred pounds, and in every case of any
offence subjecting the person committing the same to
capital punishment or transportation, the court or any
judge of any such court, or any jiistice or justices of the
peace before whom any such offender should be brought,
slioidd commit such offender to safe custody, and cause
such offender to be sent in such custody for trial in the
court of the province of Upper Canada ;"

From and after the proclamation of this Act in
British Columbia the said Act of the forty-third year
of Kin» George the Third, and the said recited provisions
of the said Act of the second year of King George the
Fourth, and the provisions contained in such Act for
1,'iving force, authority, and effect witMn the Indian
territories and other parts of America to ilio process and
acts of the said courts of Upper Canada, shall cease to
have force in and to be applicable to British Columbia.

5. Provided always, that all judgments given in any Aiipoui tioin
civil suit in British Columbia shall be subject to api)eal iuH'sui'ta to"
to Her Majesty in Council, in the manner and subject ['.oyj,'^;,^'^
to the regulations in and subject to which appeals are
now brought from the civil courts of Canada, and to
such further or other regulations as Her Majesty,
with the advice of her Privy Council, shall from time
to time appoint.

1^
\ I

^ I i
, I I

; I

6. No part of the colony of Vancouver's Island, as vnncomers
at present established, shall be comprised within British pieson't csta-
Colmibia for the purpose of this Act ; but it shall be b,,' h',eimM In
lawful for Her Majesty, her heirs and successors, on Columbia
receiving at any time during the continuance of this
Act a joint address from the two Houses of the Legis-

ii i

^M;

■ ';i i -H

! |!^

' Governor."

Act to con-
tinue in force
until Dec. 31,
1862.

Expimtion of
Act not to
affect Iwuncla-
ries, &c.

22 VICT. c. 26.— SUPP]RANNUATIONS.

[1850.

lature of Vancouver's Island, praying for the incorpora-
tion of that island Avitli British Columbia, hy order to
be made as aforesaid, Avitli the advice of her Privv
Council, to annex the said ishind to British Columbia
subject to sucli conditions and reguktions as to Her
Majesty shall seem expedient ; and thereupon and from
the date of the publication of such order in the said
island, or such other date as may be fixed in such order,
the j)rovisions of this Act shall be held to apply to
Vancouver's Island.

7. In the construction of this Act the term " Gov-
ernor" shall mean the person for the time lieing
lawfully administering the Government of British
Columbia.

8. This Act shall continue in force until the thirty-
first day of December, one thousand eight hundred and
sixty-two, and thenceforth to the end of the then next
session of Parliament : Provided always, that the expir-
ation of this Act shall not affect the boundaries
hereby defined, or the right of appeal hereby given, or
any act dore or right or title acquired under or by
virtue of this Act, nor shall the expiration of this Act
revive the Acts or parts of Acts hereby repealed.

22 VICT. (1859) c. 26.

[Sec. 1 repealed by S. L. 11. Act, 1875 ; amended l)y
23 & 21 Vict. c. 89. and 47 &49 Vict. c. 57. ; sec. 5 re-
pealed by 50 & 51 Vict. c. 67. s. 14 ; certain words in
the Act and part of Schedule repealed by S. L. E. Act,
1892, c. 19.]

An Act to amend the Laws concerning Super-
annuations and other Allowances to Persons
having held Civil Offices in the Public Service.

This Act and its amending Acts were apphed to the
Colonial Civil Service by 50 & 51 Vict. c. 13.

\m]

22 & 23 VlC'i. e. 10.— LEG. ASSEM. SPEAKER. 727

22 & 23 VICT, (1851)) c. 10.

[Ropoaled by S. L. 11. Act, 1892, 55 & 5G Vict c. 19. ;

(,ndseeB.'N.A.Act,lSGl.]

An Act to empower the Legislature of Canada
to make Laws regulating the Appointment of a
Speaker of the Legislative Council.

[8th Aug. 1859.]

WHEREAS by an Act passed in the session of
Parliament holden in tho third and fourth
years of Her Majesty, chaj)ter thirty-five, ' to
the Provinces of Upper and Lower Canada, and for the
Government of Canada,'' it is amongst other things
provided, that the governor of the province of Canada
shall have power and authority, from time to time, by
an instrument under the great seal of the said province,
to appoint one member of the said Legislative Council
to he speaker of the said Legislative Council, and to
remove him, and appoint another in his stead : And
whereas by an Act passed in the session of Parliament
holden in the seventeenth and eighteenth years of Her
Majesty, chapter one hundred and eighteen, * to empower
the Leijislature of Canada to alter the constitution of
the Legislative Council for that province, and for other
purposes,' power was given to tlie Legislature of Canada
to alter the manner of composing the Legislative Council
tor that province, and to make it consist of such number
of persons appointed or to be appointed or elected by
such persons, and in such manner as to the said Legis-
lature may seem iit, in the manner and subject to the
conditions by that Act provided, and for the purpose
aforesaid to vary and repeal, in such manner as to them
may seem fit, all or any of the provisions of the first-
recited Act, and of any other Act of Parliament now in
force which relate to the constitution of the Legislative
Council of Canada ; and it was thereby further enacted,
that the speaker of the Legislative Council should, as

reunite ^^^ ^''c'-

c. 35.

17 & 18 Vict,
c. 118.

i| itini

f i

\y.

\ !

'728

22 & 23 VICT. c. 10.— LAWS FOR SPEAKER. [ih5o,

I m

19 & 20 Vict.
(Can.) c. 140.

theretofore, be appointed by the Governor : And whereas
the said Legislature, in pursuance of the powers con-
ferred on them by the said last-recited Act, have, hy an
Act of the province of Canada passed in the session of
the said Legislature holden in the nineteenth and twen.
tieth years of Her Majesty, * to change the Constitution
o£' the Legislative Council by rendering the same Elec-
tive,' provided for the election of members of the said
Council, and for the gradual substitution of elective for
appointed members thereof : And whereas doubts have
been entertained Avhcther it is lawful for the Legislature
of Canada, under the powers given to them by the said
last-recited Act of Parliament, to provide for the ap-
pointment or election of a Speaker of the Lsgislative
Council, and it is expedient that such doubts should bo
removed :" Be it enacted by the Queen's most excellent
Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority of
the same, as follows :

The Legisla-
ture of Canada
empowered to
make laws
touching the
appointment
or election of
a speaker of
the: Legislative
Council.

1. It shall be lawful for the Legislature of Canada,
by any Act or Acts passed in the manner and subject to
the conditions specified in the said last-recited Act of
Parliament, to alter the constitution of the Legislative
Council of the said province, by providing for the ap-
pointment or election of a speaker of the said Council :
and for this purpose to vary and repeal, in such manner
as to them may seem fit, so much of the herein-before
recited sections of the said Acts of Parliament, and of
the provisions of the said recited or any other Acts of
Parliament, as relates to the appointment of such speaker.
[aS'^^ Deputy Speaker Act, 1895 ; sess. 2, c. 3.]

22 & 23 VICT. (1859) c. 26.

[Preamble and to " as follows " repealed S. L. B. Act,
1892 ; 55 & 56 Vict. c. 19.]

1H59.]

22 & 23 VICT. c. 20.— JUSTICE m N. W. T.

729

An Act to make further provision for the regu-
lation of the trade with the Indians, and for
the Administration of Justice in the North-
western territories of America.

[ISth Aug. 1859.]

WHEREAS an Act was passed in the 4.3 Geo. 3. ^^^^l"- 3-
c. 138 ' for extending the jurisdiction of the
Courts of Justice in the provinces of Lower and Upper
Canada, to the trial and punishment of persons guilty
of crimes and offences within certain parts (,f North
America adjoining to the said provinces,' «nd an Act
was passed in the session holden in the fli'st and second
years of King George the Eourth (chapter sixty-six), ^ ^^ ^''^°- *•
' for regulating the fur trade, and for estahlishing a
criminal and civil jurisdiction within certain parts of
North America '; and hy the firstly herein mentioned
Act it was enacted, that all offences committed within
any of the Indian territories or parts of America not
within the limits of either of the provinces of Lower
or Upper Canada, or of any civil government of the
United States of America, should he and he deemed to
be offences of the same nature, and shoidd he tried in
the same manner, and subject to the same punishment,
as if the same had been committed Avithin the provinces
of Lower or Tipper Canada; and by the secondly
herein mentioned Act it was enacted, that it sliould ])e
lawful for His Majesty, if he should deem it convenient
so to do, to issue a commission or commissiors to any
person or pf^rsons to be and act as Justices of the Peace
within such parts of America as aforesaid ; and it was
also enacted, that it should be lawful for His Majesty,
by commission under the great seal, to authorize and
empower such persons so appointed justices to sit and
hold courts of record for the trial of criminal offences
and misdemeanors, and also of civil causes : And whereas
no courts of record have been established or authorized
as aforesaid, and it is expedient to make further provi-
sion for the administration of justice in criminal cases

i*rw M**'«'«*"fri'-m'r*:f»»**c*M*JHi.f r-; ■

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Ju!«tici'a of the
jiuncc in tin.'
ilritish
Amorifim
Indiiin Torrito-
rios authorized
to try offincus
summarily, nnd
punish liy fine
or imprison-
nu'nt.

7.*iO 22 >\L 2.{ VICT. c. 2(5.— J.P.'s IN HHITISH AM EH. [i«5o

ill tlic said Indian territories, and such other parts us
al'ovesaid ol' America, and also to make ])r()vision foi-
better rejjidatin^ trade with the Indians in the tciritorjcs
and j)P"t.s aforesaid :" Bo it therefore enacted l)v the
Queen .-^ most ExceUent Majesty, hy and witli thcadvico
and con.sent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and l)v
the authority of the same, as follows :

1. It shall ])e laAvful for Iler Majesty, by the com.
mission by Avhich any justices of the peace are appointed
under the said Act of Kint? Georc^o the ]<V)iii'tli, or l)v
any subsequent commission, or by any order in council,
from time to time to authorize any such justice or
justices to take cognizance of and try in a summarv
way all crimes, misdemeanors, and offences whatsoever,
except as herein-after mentioned, within the local limits
of the jurisdiction of such justices (or such parts thereof
as Her Majesty may direct in this behalf), and tojmnisli
such crimes, misdemeanors, and offences by fine or im-
prisonment, or both ; and it shall be lawful for Her
Majesty, in manner aforesaid, from time to time to
restrict or regulate the exercise of such jurisdiction as
she may think tit, and to direct in what cases the same
may be exercised by one or by moro than one of such
justices, and generally to make such provision concerninf;
the exercise of such jurisdiction as to Her Majesty may
seem expedient ; and it shall also be lawful for Her
Majesty, in manner aforesaid, to order or autliori/.c the
appointment of all proper ofl&cers to act in aid of such
justices, and the said justices respectively may do or
cause to be done aU acts, matters, and things for the
execution of their sentences, and in aid of their juris.
diction under this Act, which might be done or caused
to be done by courts of record having jurisdiction in the
like cases : Provided always, that where the offence
with which any person is charged before any such
justice or justices is one which is punishable with death,
or one wliich in the opinion of such justice or justices

1^59.] 22 & 23 VICT. c. 20.— SALE OF DRINK

731

ought, oitlioi" on account of the iniuloqiiacy of tlic pun-
ishnKMit which such justice or justices can inflict, or for
anv other roa.son, to Ix^ niach' the subject of prosecution
in the ordinary way, rathcu* than to be (lis])o.se(l of suni-
mai'ih', such jusrice or justices .shall conunit the oll'ender
to .safe custody, and cause him to ho sent in such custody
tor trial to Upper Canada, as provided by the said Act
of Kiui,' George the Fourth, or, where such justice or
justices may see tit, to the colony of British Columbia ;
and such otVender may b(! tried and dealt with by any
Court constituted in British Columbia having' coi^nimnce
of the lik(; olfences committed then;, and such court
shall have the like powers and authorities for this piu'-
pose as under the said Acts arc given to any Court in
Canada in the like aises.

2. Provided, That nothing herein-heforc contained ''''"", r^Y'ito

^ _ _ rstiiMish

slmll he taken to repeal or aft'ect the provisions of the oomts of
said Act of King George the Fourth concerning the bo uffect'ed"
establishment of courts of record in the said territories,
and where such courts are established any olt'enders
within the limits of the jurisdiction thereof may be
committed for trial to such courts instead of the courts
of Canada or British Columbia,

3. It shall be lawful for Her Majesty, by and with
the advice of Her Privy Council, from time to time to
make such rules and regulations as she may deem ex-
pedient for the conduct of the trade with the Indians,
and for diminishing or preventing the sale and distribu-
tion of spirits to the Indians, or for promoting their
moral and religious impiovement, to be in force in all
or any portions of the territories mentioned in the said
Act of King George the Fourth which may not be in-
cluded in any grant or licence for the time being in
force under that Act.

4. Nothing herein contained shall extend to the terri-
tories heretofore granted to the company of adventurers
trading to Hudson's Bay ; and nothing herein contained

Her Majesty,
by Order in
Council, may
make regula-
tions for the
trade with the
Inilians.

Hudson's Bay
Company,
British Colum-
bia, and Van-
couver's Island
not affected.

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Letters Patent
not to take
effootin
Colonics till
pulilislied, &e.
liut actf (loiio
umlor them
valid.

Future Letters
Patent not to
take effect in
Colony till
publication.

732 2G & 27 VICT. e. 7«.— COL. LETTERS PATENT. [1863.

shall extend to the colony of British Columbia, save as
herein exjiressly provided, or to the colony of Vancoiti'er's
Island.

26 & 27 VICT. (1863) c. 76.
[Sec. 4 repealed hy S. L. R. Act, 1875 ; preamble from
"and it is expedient " to " same as follows," and sec. 5
repealed by S. L. R. Act, 1893, c. 11.]

An Act to determine the time at -which Letters
Patent shall take effect in the Colonies.

[28th July 1863.]

WHEREAS Her Majesty hath from time to time
caused to he made under the great seal of the
United Kingdom of Great Britain and Ireland divers
Letters Patent intended to take effect within Her Ma-
jesty's colonies and possessions beyond the seas : And
whereas doubts are entertained resi^ecting the period at
which such Letters Patent have taken or may hereafter
take effect Avithin such colonies and possessions, and it
is expedient that such doubts should Ijc removed :" Be
it therefore enacted by the Queen's most excellent Ma-
jesty, by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same,
as follow^s :

1. No such Letters Patent heretofore made shall
(unless otherwise provided therein or by other laAvfid
authority) be deemed to have taken or shall take effect
in any such colony or possession as aforesaid until the
same were or shall be publicly made known or acted
upon therein : Provided that any act or thing heretofore
done or purporting to have been done in pursuance or
under authority of such Letters Patent shall be as valid
and effectual as if the same Letters Patent had taken
effect at the date of the making thereof.

2. No such Letters Patent hereafter to be made shall
(unless otherwise provided therein or by other lawful
authority) take effect in any such colony or possession

1863.]

26 & 27 VICT. c. 83.— B. C. BOUNDAEIES.

733

until the making of the same shall have been signified
therein by proclamation or other public notice.

3. Any such Letters Patent by which any person may Appoiiitmeiit.s
be hereafter appointed to any office or employment Ait.nt to\c
within any of such colonies or pos.sessions shall (unless p^/i'iiX^rwitii
otherwise ^.xOvided therein or by other hiAvful authority) UJuJlfi,"'' "'""
become null and void in respect of such colony, unless

the same shall be so signified as aforesaid within the
following period ; that is to say, within nine calendar
months in case such colony or possession shall be to the
eastward of Bengal in the East Indies, or to the Avcst
of Cape Horn in South America, or in any other case
within six months after the making thereof.

4. The Act, chapter ninety -one, of the ninth and ^ -^ lo vict.
tenth years of Her Majesty, intituled " An Act to con-
tinue certain patent commissions until the exhibition of

the commissions revoking them," is hereby repealed.

5. This Act shall take effect in each of Her Majesty's ivriodof Act

1 • -1 • ii i' 11 1 comiiiK into

colonies and possessions so soon as the same shall l)e oiHintion.
proclaimed therein by the officer administering the
Government thereof.

26 & 27 VICT. (1SG3) c. 83.

[Hepealed by 29 & 30 Vict. c. G7.]

An Act to define the Bo...adaries of the Colony of
British Columbia, and to continue an Act to
provide for the Government of the said Colonv.

[28th July 1863.]

" TT7HEREAS it is desirable to amend and continue
* » an Act passed in the twenty-first and twenty-
second year of Her Majesty, chapter ninety-nine, inti-
tuled, ' An Act to pj'ovide for the Government of British 21 & 22 Vict.

c 99.

Colmnhia ': " Be it therefore enacted by the Queen's most
Excellent Majesty, by and with the advice and consent
of the Lords Spiritual and Temporal, and Commons, in

ISBI!B9I

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734 2S & 20 VICT. c. 14.— COL. NAVAL DEFENCE.

[1865

Sec. 1 of re-
cited Act re-
pealed.

Remaining
sections of re-
cited Act con-
tinued.

Boundaries of
British Colum-
bia.

this present Parliament assembled, and by tho authoritv
of the same, as follows :

1. The first section of the aforesaid Act is repealed.

2. The remaining sections of the said Act sliall con-
tinue in force till the thirty-first day of December one
thousand eight hundred and sixty-three, and no lono-cr
provided that the expiration of the said Act shall not
invalidate any Order in Council or other instrument
issued under authority of the said Act, nor any act done
or right or title acquired by virtue of the said Act, nor
afFect the right of appeal thereby given, nor revive any
Acts or parts of Acts of Parliament thereby repealed.

3. British Colnmhia shall for the purposes of the said
Act, and for all other purposes, be held to comprise all
such territories within the dominions of Iler Majesty as
are bounded to the south by the territories of the United
States of America, to the west by the Pacific Ocean and
the frontier of the Russian territories in North America,
to the north by tho sixtieth parallel of north latitude,
and to the east, from the boundary of the United States
northwards, by the Rocky Mountains and the one hun-
dred and twentieth meridian of Avest longitude, and shall
include Queen Charlotte's Island and all other islands
adjacent to the said territories, except Vancouver's
Island and the islands adjacent thereto. [See 29 & 30
Vict. c. 67. and 33 & 31 c. 66.]

28 & 29 VICT. (1865) c. 14.

[Preamble, and to " same as follows " ; sec. 2 from " the
term the Admiralty " to the end of the section, repealed
by 8. L. R. Act, 1893, 56 Vict. c. 14.]

An Act to make better Provision for the Naval
Defence of the Colonies. [7^// April 1865.]

" TT7HEREAS it is expedient to enable the several

* » colonial possessions of Her Majesty the Queen

to make better provision for naval defence, and to that

1865.] 2^ & 29 VICT. c. 1 1.— COL. N"AVAL DEFENCE. 735

end to provide and man vessels of war, and also to raise

a volunteer force to form part of the Royal Naval llescrve

established under the Act of Parliament of 1859 ' for

the Establishment of a Eeserve Volunteer Porcc of Sea- 22 & 2.$ ViCt.

men, and for the government of the same,' (hereafter in

this Act called the Act of 1859,) and accordingly to

bo availal)le for general service in the Royal Navy

in emergency :"

Be it therefore enacted by the Queen's most Excellent
Majesty, by and Avith the advice and consent of tli.i
Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority of
the same, as follows :

1. This Act may be cited as the Colonial Naval Defence siiort Title.
Act, 1865.

2. In this Act — interpretation.

The term "colony" includes any plantation, island,
or other possession within Her Majesty's dominions,
exclusive of the United Kingdom of Great Bnta'ui
and Ireland, and of the islands being immediate
dependencies thereof, and exclusive of India as
defined by the Act of Parliament of 1858 " for the
l)etter government of India : "

The term " the Admiralty " mean.s the Lord High
Admiral of the United Kingdom, or the commis-
sioners for executing the office of Lord High Ad-
miral.

3. In any colony it shall be laAvful for the proper rower for
legislative authority, with the approval of Her Majesty provide vessels,
in Council, from time to time to make provision for eoInmTssion""
effecting at the expense of the colony all or any of the "*<^""^' ''^''^•
purposes following :

(1.) For providing, maintainhig, and using a vessel
or vessels of war, subject to such conditions
and for such purposes as Her Majesty in
Council from time to time approves :

■■o

t ,

! I

730

28 & 2J VICT. e. 14.— COL. NAVAL VOLS.

[18G5,

,«<

(2.) For raising and maintaining seamen and others
entered on the terms of being hound to serve
as ordered in any such vessel :

(3.) For raising and maintaining a hody of vohinteers
entered on tlie terms of heing hound to general
service in the Royal Navy in emergency, and
if in any case the proper legislative authority
so directs, on the further terms of hoing bound
to serve as ordered in any such vessel as afore-
said :

(4.) For appointing commissioned, warrant, and other
officers to train and command or serve as
officers with any such men ashore or afloat,
on such terms and subject to such regulations
as Her Majesty in Council from time to time
approves :

(5.) For obtaining from the Admiralty the services of
commissioned, warrant, and other officers, and
of men of the Royal Navy for the last-men-
tioned purposes :

(6.) For enforcing good order and discipline among
the men and officers aforesaid while ashore or
afloat within the limits of the colony :

(7.) For making the men and officers aforesaid, while
ashore or afloat within the limits of the colonv
or elsewhere, sul>ject to all enactments and
regulations for the time being in force for the
discipline of the Royal Navy.

Volunteers to
form part of
Koyiil Niiviil
Reserve.

4. Volunteers raised as aforesaid in any colony shall
form part of the Royal Naval Reserve, in addition to
the volunteers who may be raised under the Act of 1859,
but, except as in this Act expressly provided, shall he
subject exclusively to the provisions made as aforesaid,
by the proper legislative authority of the colony.

Power to
Admiralty to
issue special
commissions.

5. It shall be lawful for Her Majesty in Council
from time to time as occasion requires, and on such
conditions as seem fit, to auth .ize the Admiralty to

1^65] 28 & 29 VICT, c 1 ^.— COL. WAll SHIPS.

737

issue to any officer of the Royal Navy volunteering for
the purpose a special commission for service in accord-
ance with the provisions of this Act.

6. It shall he lawful for Her Majesty in Council
from time to time as occasion requires, and on such
conditions as seem fit, to authorize the Admiralty to
accept any offer for the time heing made or to he mad(;
bvthe Government of a colony, to place at Her Majesty's
disposal any vessel of war provided hy that Government
and the men and officers from time to time serving
therein; and while any vessel accepted hy the Admiralty
under such authority is at the disposal of Her ]\rajesty,
sncli vessel shall he deemed to all intents a vessel of war
of tlie Royal Navy, and the men and officers from tim(»
to time serving in such vessel .shall he deemed to all
intents men and officers of the Royal Navy, and shall
accordingly he sid)ject to all enao*"*ents and regulations
tor the time heing in force for the discipline of the
Royal Navy.

7. It shall he lawful for Iler Maj(^sty in Council
from time to time as occasion requires, and on such
conditions as seem fit, to authorize the Admiralty to
accept any offer for the time heing made or to be mado
by the Government of a colony, to ])laceat Her Majesty's
disposal for g(!neral service in the Royal Navy the whole
or any part of the body of volunteers with all or any of
the officers raised and appointed by that Government in
accordance a\ ith the provisions of this Act ; aiid when
any such oft'er is accepted such of the provisions of the
Act of 1859 as relate to men of the Royal Naval Reserve
raised in the United Kingdom when in actual service
shall extend and apply to the voliuiteers whose services
are so accepted.

8. The Admiralty may, if they think fit, from time
to time by warrant authorize any officer of Her^rajesty's
Navy of the rank of captain or of a highcn' rank to
exercise, in the name and on behalf of the Admiralty,

» 2340. 3 ▲

Placing of
colonial vessel
with men aiid
officers at Her
Majesty's dis-

l"lSill.

As to services
of volunteers
and officers in
Navy.

Delegation of
Admiralty
powers to
naval officer.

I ' i

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738 28 k 29 VICT. f. 63 —VALIDITY OF rOL. LA^VS. [ispw

in relation to any colony, for such time and suhjcct to
such limitations, if any, as the Admiralty tliink fit, anv
power exerciseable by the Admiralty under this Act.

Sr* 0 'o™^'"'" ® * Nothing done under this Act by Order in Council, or
Imperial by the Admiralty, or otherwise, shall impose any charge

on the revenues of the United Kingdom without express
provision made by Parliament for meeting the same.

Not to affect JQ. Notliinff in this Act shall take awav or abridfp

powers vested '=' • i i i '

in colonies. any powor vested m or exerciseable by the Legislature
or Government of any colony.

28 & 29 VICT. (1865) c. 63.

[The Act may bo extended by Order in Council,
41 & 42 Vict. c. 67. s. 4.]

Preamble, and to " same as follows," repealed bv
S. L. E. Act, 1893, 56 Vict. c. 14.

An Act to remove Doubts as to the Validity of
Colonial Laws. [29th June 1865

Definitions :
" Colony :"

'• "f TTHEEEAS doubts have been entertained re-
' » specting the validity of divers laws enacted
or purporting to have been enacted by the Legislatures
of certain of Her Majesty's colonies, and respecting
the powers of such Legislatures, and it is expedient
that such doubts should be removed:"

Be it hereby enacted by the Queen's most Excellent
Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority of
the same, as follows :

1. The term " Colony " shall in this Act include all
of Her Majesty's possessions abroad in which there shall
exist a Legislature, as herein-after defined, except the
Channel Islands, the Isle of Man, and such territories
as may for the time being be vested in Her Majesty

1865.]

28 & 29 VICT. c. 63.— TERM «' COL. LAW."

730

under or by virtue of any Act of Parliament for the
Government of India :

The terms " Legislature " and " Colonial Legislature "
shall severally signify the authority, other than the
Imperial Parliament or Her Majesty in Council, com-
petent to make laws for any colony:

The term " Representative Legislature " shall signify
any Colonial Legislature which shall comprise a legis-
lative body of wliich one half are elected by inhabitants
of the colony :

The term " Colonial Law " shall include laws made
for any cohmy cither by such Legislature as aforesaid
or by Her Majesty in Council :

An Act of Parliament, or any provision thereof, shall,
in construing this Act, be said to extend to any colony
Avlien it is made applicable to such colony by the ex-
press words or necessary intendment of any Act of
Parliament :

The term " Governor " shall mean the officer lawfully
administering the government of any colony :

The term " Letters Patent " shall mean letters patent
under the great seal of the United Kingdom of Great
Britain and Ireland.

2. Any colonial law which is or shall be in any Colonial Irw

, ■• n 1 n when void for

respect repugnant to the provisions of any Act of Par- repugnancy.
liament extending to the colony to which such law may
relate, or I'opugnant to any order or regulation made
under authority of such Act of Parliament, or having in
the colony the force and effect of such Act, shall be read
subject to such Act, order, or regulation, and shall, to
the extent of such repugnancy, but not otherwise, be
and remain absolutely void and inoperati>'e.

3. No colonial law shall be or be deemed to have Coioniaiiaw
been void or inoperative on the ground of repugnancy forrep^ugnlncy
to the law of England, unless the same shall be repug-
nant to the provisions of some such Act of Parliament,

order, or regulation as aforesaid.

3 A 2

"Legislature,"
" Colonial
Legislature :"

" Representa-
tive Lccis-
lature :'

" Coloniii!
Law :"

Act of Pur-
liument, &c. to
extend to
colony when
made appli-
cable to such
colony ;

"Governor:"

" Letters
Patent."

\W.

M :i

I' i II

;■ 1

ll' ■

;■

- ■ i ■

!
I

1 ;i

740 28 & 20 VICT. p. «3.— CERT. COPIES OF LAWS.

riHt!5.

fr^fi

Colonial luw
not void for
iiK'unsisU'iR'y
with in-
t^tructiuns.

Colonial Legis-
lature may
establish, &c.
courts of law.
Kepresentative
liegislature
may alter con-
stitution.

Certified
copies of laws
to bo evidence
that they are
properly
passed.

4. Xo colonial law, passed with the concuvvence of
or assented to by the Governor of any colony, or to l)e
hereafter so passed or assented to, shall be or be deemed
to have been void or inoperative by reason only of anv
instructions Avith reference to such law or the subject
thereof which may have beer, given to such Governor by
or on behalf of Her Majesty, by any instrument other
than the letters patent or instrument authorizing such
Governor to concur in passing or to assent to laws for
the peace, order, and good government of such colony
even though such instructions may be referred to in
such letters patent or last-mentioned instrument.

5. Every Colonial Legislature shall have, and be
deemed at all times to have had, full power within its
jurisdiction to establish courts of judicature, ard to
abolish and reconstitute the same, and to alter the con-
stitution thereof, and to make provision for the adminis-
tration of justice therein; and every representative
Legislature shall, in respect to the colony under its
jurisdiction, liaA'e, and bo deemed at all times to have
bad, full power to make laws respecting tlie constitution.
powers, and procedure of such Legislature; provided
that such laws shall have been passed in such manner
and form as may from time to time be required by any
Act of Parliament, letters patent. Order in Council, or
colonial law for the time being in force in the said
colony.

6. The certificate of the clerk or other proper officer
of a legislative body in any colony to the effect that the
document to which it is attached is a true copy of any
colonial law assented to by the Governor of such colony,
or of any Bill reserved for the signification of Her Ma-
jesty's pleasure by the said Governor, shall be prima
facie evidence that the document so certified is a true
copy of such law or Bill, and, as the case may be, that
such law has been duly and properly passed and assented
to, or that such Bill has been duly and properly passed
and presented to the Governor ; and any proclamation

mh.]

28 & 29 VICT. c. 64 —MARRIAGE LAWS.

741

nurporting to be published by authority of the Governor P'^'-i'ini'ition
ill any newspaper in the colony to which such law or of As-sintunJ
bill shall relate, and signifying Her Majesty's disallow-
ance of any such colonial law, or Her Majesty's assent
to any sucli reserved Bill as aforesaid, shall be prima
facie evidence of such disallowance or assent.

" And whereas doubts are entertained respecting the
validity of eci'tain .Vets enacted or reputed to be enacted
by the Legislature of South Australia:'' Be it further
enacted as follows :

7. All laws or reinited laws enacted or purporting to certain A(•t^'
liave been enacted by the said Legislature, or by persons Lcg^sllniro
or bodies of persons for the time being acting as such Australia to
Legislature, which have received the assent of Her ^^ovniid.
Majesty in Council, or Avhich have received the assent
of the Governor of the said colony in the name and on
behalf of Her Majesty, shall be and be deemed to have
been valid and effectual from the date of such assent
for all purposes whatever ; provided that nothing herein
contained shall be deemed to give effect to any law or
reputed law which has been disallowed by Her Majesty,
or has expired, or has been lawfully repealed, or to pre-
vent the lawful disallowance or repeal of any law.^

* See for definition of Colonial
Legislature, Long i-. The Bishop of
Cape Town, 1 Moo. P.C. N.S. 411 ;
[n re Bishop of Natal, 3 Moo. P.C.
N^S. 115; Keg. v. Burah, 3 App.
t'as. 889 J Hodge v. Reg., 9 App.

Cas. 117 ; Powell v. Apollo Cau-
dle Coy, 10 App. Cas. 282; and
Strong, J., in Merchants' Bank of
Halifax v. Gillespie, 10 S.C.R. p.
324 ; Att.-Geu. of Canada r. Flint,
16 S.C.R. 707.

28 & 29 VICT. c. 64.

Preamble and to " same as follows " repealed by
S. L. R. Act, 1893, 56 Vict. c. 14.

An Act to remove Doubts respecting the Validity
of certain Marriages contracted in Her Majesty's
possessions abroad. [29th June 1865.]

WHEREAS laws have from time to time been
made by the legislatures of divers of Her

I :» Mt

"fW«>fi«ii«n»rT55,r»»;mi»M4f4Si.

Colonial laws
establishiiifr
Tnliility of
miiiTiiiReH to
hiivo cffoct
throufrhout
Hit Majesty's
(lomiiiioiis.

Dofinitioii <if
" Li'gislntiii'f,

742

liH Si 2» VICT. V. lOO—AFFIRMlNG LAWS.

!lS«.5.

Majesty's possessions abroad for the purpose of esta-
blishing the validity of certain marriages prcvioiisly
contracted therein, but doubts are entertained whether
such laws are in all respects effectual for the aforesaid
purpose beyond the limits of such possessions;" Beit
therefore enacted by the Queen's most Excellent
Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Co imons, in this
present Parliament assembled, and by the authority of
the same, as follows :

1. Every law made or to be made by the Legis-
lature of any such possession as aforesaid for the
purpose of establishing the validity of any marriage
or marriages contracted in such ;oossession shall have
and be deemed to have had from the date of the
making of such law the same force and clfcet for the
purpose aforesaid Avithin all parts of llcr Majesty's
dominions as such law may have had or may hereafter
have within the possession for wliich the same was
made : Provided that nothing in this law contained
shall give any effect or validity to any marriage unless
at the time of such marriage both of the parties thereto
were, according to the law of England, competent to
contract the same.

2. In this Act the word "Legislature " shall include
any authority competent to make laws for any of Her
Majesty's possessions abroad, except the Parliament of
the United Kingdom and Her Majesty in Coimcil. [As
to marriage at British Embassy in foreign countries, see
53 & 51 Vict. c. 47., the Marriage Act, 1890.]

28 & 29 VICT. c. 106.

Preamble, and to "same as follows"; sec. 2 from
" The term the Admiralty "to " Admiral " where that
word last occurs ; the words " Commissioners of Her
Majesty's" wherever they occur in sees. 3, 6, andlS;
sec. 3 from the words "under the" to "of them";

2S & 20 VJCnC. c. 113— LOAN FOR DOCKS.

7i3

the words " the Governor and company of " in sees. 4,
12,13; and sec. 15, repealed by S. L. R. Act, 1893,

56 Vict. 0. U.

An Act to authorize Loans in Aid of the Construc-
tion of Docks for Vessels of the Royal Navy and
of greater dimensions than requisite for commer-
cial purposes in British possessions except India.

28 & 29 VICT. (1865) c. 113.

Amended by 35 & 36 Vict. c. 29, and 50 & 51 Vict.
C.13.

Preamble, and to " same as follows " ; sec. 12, the
words "the Lords Commissioners of " and from "and
for the" to the end of the section, repealed by
S. L. R. Act, 1893, 56 Vict. c. 14.

An Act to authorize the Payment of Retiring
Pensions to Colonial Governors.

28 & 29 VICT. (1865) c. 116.

This was '* An Act to explain the Foreign Jurisdiction
Act, 6 & 7 Vict. c. 94.," and enacted that the term
"British Colony " should include any of Her Majesty's
possessions out of the United Kingdom.

29 & 30 VICT. (1866) c. 65.
Repealed by 33 & 31 Vict. c. 10. s. 20.
Referring to establishment of colonial mints.

29 & 30 VICT. (1866) c. 67.

Sec. 9 and the Schedule repealed by S. L. R. Act, 1878. 41 & 42
Vict. c. 79.

The S. L. R. Act, 1893, 56 Vict. c. 14., repeals this Act as follows:—
" In part, namely, from ' Be it therefore,' to ' as follows ' ; sec. 3, to
' Columbia,' where it first occurs ; sec. 4, to * cease and,' and the words
'after the union,' twice occurring; sec. 5, to 'union,' where it first
occurs, and the words ' Commissioners of Her Majesty's ' ; sec. 7, to
'union'; sec. 8, to 'union.'"

By S. L. R. Act, 1894, 57 h 58 Vict. c. 66., sees. 2 to 6 were repealed.

.{. 'U

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iiit

7'lt

20 & ;)0 VICT. c. 67.— XTNION OF n, ('

[IBfifl

Short titlr

" Oovi riior.'

Od proclama-
tion of this All
in British
Columliiii,
Vancouver
Island ii.iiti'il
therewith.

As to govern •
mont of the
unitrd colony^

Laws of the
separate
colonies to
continue tx-
eept as to
revenue of
customs.

Nothing to
ro.Htrict autho-
rity of Gover-
nor, &c.

Boundaries of
British Colum-
bia until union.

An Act Cor the Union of the Colony of Vannomer
Island with the Colony of British Columbia.

[Qth Amj. 1866]

BE it enacted hy tbi- Qiieen'w ino.sl Exccllt'iit Majesty, liy and with
the advice mid coiisi'iit of the Lord."! spiritunl mid tcinporal, and
Commons, in this pfeseiit Parliament assembled, mid ity the Miitiiority ol
the Hame, as follows : —

1. This Act may be cited as The British Columbia Act, iHtiO.

2. In this Act the term " Governor " means any olTicer for the time
being lawfully ndmiiiisteriug the government.

3. From mid immediately after the proclamation of tiiis Act hy iIh-
Governor of British Columbia, the colony of Vancouver Island sliall
be and the same is hereby united with (he colony of British Columbia,
and thenceforth those two colonics shall 'orm and be one colony, witli
the name of British Columbia (which union is in this Act reforred to
as the union).

4. On the union taking effect, the form of government existing in
Vancouver Island as a separate colony .shall cen.se, and the power ami
authority of the E.\ecuti\ e Government mid of the Legislature cxistirit; in
British Columbia shall extent to and ovei- Vancouver Istinid ; hut in
order that provision may be made for the representation of Vanrnuvtr
Island in the Legislature of British Columbia after the union, tln'
maximum number of couiu-illors in the legislative council of British
Columbia after the union jshall, until it is otherwise provided hy lawful
authority, be twenty-three instead of fifteen.

5. After and notwithstanding the union the laws in force in the
.separate colonies of British Columbia and Vancouver Island re-speo-
tively at the time of the union taking effect shall, until it is otherwise
provided l)y lawful authority, remain in force as if this Act had not been
passed or proclaimed ; save only that the laws relative to the revenue of
customs in I'oree in British Columbia at the time of the union taking
efli'ct shall, until it is otherwise provided by lawful authority, exti ml
and apply to Vancouver Island ; and, until it is otherwise iirovidcd hv
lawful authority, the Go\ernor of British Columbia shall have, in if-
lation to the territory for the time being under his government, all the
j)owers and authorities for the time being vested, in relation to tbi'
United Kingdom, in the Commissioners of Her Majesty's Trca.sury or
in the Commissioners of Customs, Avith re.spect to the appointment of
warehousing ports, and the ap[)roval and appointment of warehouses or
places of security in such ports, and everything consequent thereon or
relative thereto.

6. Nothing in this Act shall take away or restrict the authority of the
Governor of British Columbia, with the advice and consent of the
Legislative Council thereof, to make laws for the peace, order, and good
government of British Columbia either before or after the union ; nor
shall anything in this Act interfere with the exercise of any power that
would have been exerciseable by Her Majesty in Council if this Act had
not been passed.

7. Until the union British Columbia shall comprise all such terri-
tories within the dominions of Her Majesty as are bounded to the south
by the teiritories of the United States of America, to the west by the

1S66.] UO A 30 VfCT. c. 07.— BCUNDARIES OF B. C.

745

Pacific Ocean and thp t'rontior (tf tlie Ituaaian terrifork's in North
America, to the north by tlie sixtieth puraliel of north hititude, and to
ihe east from tlie boundary of the United States northwards by the
Roeki/ Mountains and tht^ ono liundrod and twentieth meridian of west
longitiiile, (111(1 shall include Queen C/tarlotte^s Inland and all other
inlands ii(lj(it'ent to the said territories, except Vancoueer Island and the
itlands ndjiicent thereto.

8, After the union British Columbia slinlj comprise ^11 the territories Boundaries
iind islands aforesaid and Vancouver Isia nl and the islands a<ljacent nfHritinh
thoreto Columbia aftar

union.

9, The Acts described in the sehedidc to this Act are hereby rei)ealed ; Acts in sche-
iiut this repeal shall not invalidate any Order in Council or other instru- dale repealed,
imiit i^Mied under the authority of those Acts or either of them, or any

.ict done or right or title acquired by virtue uf those Acts or of either
of them or of any such order or instrument.

SCHEDULE.
Acts repealed.

21 A 22 Viet. c. 99. -

26 k 27 Vict. o. 83.

An Act to provide for the government of
British Columbia.

An Act to define the boundaries of the
colony of British Columbia, and to con-
tinue an Act to provide for the govern-
ment of the said colony. \_See these
Acts and 33 & 34 Vict. c. 66.]

30 & 31 VICT. c. 3.

An Act for the Union of Canada, Nova Scotia, and New
]irunstcick,an([ the Government thereof; and for
Purposes connected therewith.

[29a March 1867.]

This Act constituted the Unity and Dominion of
Canada. [See ante, pp. 1 to 553.]

Sec. 18 was repealed by 38 & 39 Vict. c. 38. s. 1
[see ante, p. 11].

Sees. 21 and 37 amended by B. N. A. Act, 49 & 50
Vict. c. 35. s. 2.

Preamble, from the words "Be it therefore" to
"same, as follows"; sec. 2; soc. 4, to "provisions"
where it last occurs ; sec. 25 ; sees. 42, 43 ; sec. 51,
from "of the census" to "seventy-one and," and
the word " subsequent " ; sec. 81 ; sec. 88, from

■r !;

■■ : ; i ;''

jii i^

iiiwiiUii : Hi , 1 U

! J

746

30 & 31 VICT, c, 3.— QUEBEC RESL. [Resl. 1864

"and the House" to the end of the section;
89, 127, and 145, repealed by S. L. R. Act, 1893,
56 Vict. c. 14.

Quebec Resolutions.

Before the above Act was passed, resolutions were
adopted by all the provinces of Canada ; the Parlia-
mentary paper presented to both Houses of Parliament,
7 Pebruary 1865 (Par. Papers, Vol. 37), was as
follows : —

Report of Resolutions adopted at a Conference of Delegates from
the Provinces of Canada, Nova Scotia, and New Brunswick, and the
Colonies of Newfoundland and Prince Edward Island, held m tlic
city of Quebec, October 10, 1864, as the Basis of a proposed Con-
federation ot' those Provinces and Colonies.

1. The best interests and present and future prosperity of Brithh
North America will be promoted by a ^Federal Union under the Crown
of Great Britain, provided such union can be effected on prinoiplps just
to the several provinces.

2. In the federation of the British North American Provinces, the
system of government best adapted under existing circunistanees to
protect the diversified interests of the several provinces, and secure
eflSciency, harmony, and permanency in the working of the union, would
he a (aeneral Government charged with matters of conmion interest to
the whole country, and local Governments for each of the Canadas and
for the provinces of Nova Scotia, Neic Brunswich, and Prince Edward
Island, charged with the control of local matters in their respective
sections, provision being made for the admission into the union on
equitable terms of Newfoundland, the North-west Territory, Brilhh
Columbia, and Vancouver

3. In framing a Constitution for the General Government, the Con-
ference, with a view to the perpetuation of our connexion with the
Mother Country, and to the promotion of the best interests of the people
of these provinces, desire to follow the model of the British Constitution,
so far as our circumstances will permit.

4. The executive authority or Government shall be vested in the
Sovereign of the Unite<l Kingdom of Great Britain and Ireland, and lio
administered according to the wll-understood principles of tlie British
Constitution by the Sovereign personally, or by the representative of
the Sovereign duly authorized.

5. The Sovereign or representative of the Sovereign shall be Com-
mander-in-Chief of the Land and Naval Militia Forces.

6. There shall be a General Legislatui-e or Parliament for the fede
rated provinces, composed of a Legislative Council and a House of
Commons.

7. For the purpose of forming the Legislative Council, the federated
provinces shall be considered as consisting of three divisions :— 1st,
Upper Canada; 2nd, Lower Canada; 3rd, Nova Scotia, New Brmmti
and Prince Edward Island ; each division with an equal representation
in the Legislative Council.

m shall be Com-

Resl. 1864.] 30 & 31 VICT. e. 3.— ORIGINAL REPRES. 747

8. Upper Canada shall be represented in the Legislative Council by
24 members, Lower Canada by 24 members, and the three maritime
provinces by 24 members, of which Nova Scotia shall have 10, New
Bni7iswick 10, and Prince Edward Island four members.

9. The colony of Newfoundland shall be entitled to enter the proposed
union, with u representation in the Legislative Council of four members.

10. Tlie North-west Territory, i^'vV/s/t Columbia, smd Vancouver sh&lX
be admitted into the union, on such terms and conditions as the Par-
liament of the federated provinces shall deem equitable, and as shall
rpceive the assent of Her Majesty ; and in the case of the province of
British Columbia or Vancouver, as shall be agreed to by the Legislature
of such pro\ ince.

11. The members of the Legislative Council shall be appointed by the
Crown under the great seal of the General Government, and shall hold
office (luring life ; if any Legislative Councillor shall, for two consecutive
sessions of Parliament, fail to give his attendance in the said Council,
his seat shall thereby become vacant.

12. Tlie members of the Legislative Council shall be British subjects
by birth or naturalization, of the full age of 30 years, shall possess a
continuous real property qualification of four thousand dollars over and
aliovp nil incumbrances, and shall Ije and continue worth that sum over
and abovo their debts and liabilities, but in the ca.se of Netvfoundland
aw\ Prime Edward Zs/awrf, the property may be either real or personal.

13. If any question shall arise as to the qualification of a Legislative
Councillor, the same shall be determined by the Council.

14. The riist selection of the members of the Legislative Council shall
lie made, except as regards Prince Edward Island, from the Legislative
Councils of the various provinces, so far as a sufficient number be found
qualified and willing to serve. Such members shall be appointed by the
Crown at the recommendation of the General Executive Government,
upon the nomination of the respective local Governments ; and in such
nomination due regard shall be had to the claims of the members of the
Legislative Council of the opposition in each province, so that all political
parties may as nearly as possible be fairly represented.

15. The Speaker of the Legislative Council (unless otherwise provided
by Piuliament) shall be appointed by the Crown from among the mem-
bers of the Legislative Council, and shall hold office during pleasure,
and shall only be entitled to a casting vote on an equality of votes.

16. Each of the 24 Legislative Councillors representing Lower Canada
in the Legislative Council of the General Legislature shall be appointed
to represent one of the 24 electoral divisions mentioned in Schedule A.
of Chapter 1st of the Consolidated Statutes of Canada, and such Coun-
cillor shall reside or possess his qualification in the division he is ap-
pointed to represent.

17. The basis of representjition in the House of Commons shall be
population, as determinwl by the official census every 10 years; and
the number of members at first shall be 194, distributed as follows :

I'i

Upper Canada -
Lower Canada -
Nova Scotia
New Brunswick -
Netofoundland -
Prince Edward Island

82
65
19
16

8
5

f !:

i I

;i i

II ;

1 1

•i'.\

18. Until the official census of 1871 has been made up, there shall
be no change in the number of represi-ntatives from the several sections.

748 30 & 31 VICT. c. 3.— SUBJECTS TO DOM. [Resl,

1864.

19. Immediately after the completion of the oeusus ot I87l and
immediately after every decennial censu.s thereafter, the repre.sentation
from each section in tlie House of Commons shall be re-iuljii.stpd on
the basis of population.

20. For the purpose of such re-adjustments, Lower Canada shall
always be assigned 65 members, and each of the other sections shall at
each re-adjustment, i'eceive, for the 10 years then next succeeding the
number of members to which it will be entitled on the .suae ratio of
representation to population as Lower Canada will enjoy according to
the census last taken by having 65 members.

21. No reduction shall be made in the number of members retunied
by any section, unless its population shall have decrease<l rc'liitivtly to
the population of the whole Union, to the extent of live per centum.

22. In computing at each decennial period the number of members
to which each section is entitled, no fractional parts shall be considered
unless when exceeding one-half the number entitling to a member in'
which case a jpember shall be given for each such fractional part.

23. The Legislature of each province shall divide such province into
the proper number of constituencies, and define the boundaries of each
of them.

24. The local Legislature of each province may, from time to time
alter the electoral districts for the purposes of representation in the House
of Commons, and distribute the representatives to which the province is
entitled, in any manner such Legislature may think fit.

25. The number of members may at any time be increased by the
General Parliament, regard being had to the proportionate rights then
existing.

26. Until provisions are made by the General Parliament, all the laws
which at the date of the proclamation constituting the union are in
force in the provinces respectively, relating to the qualification and dis-
qualification of any person to be elected or to sit or vote as a member of
the Assembly in the said provinces respectively, — and relating to the
qualification or disqualification of voters, and to the oaths to be taken
by voters, and to returning officers and their powers and duties,— and
relating to the proceedings at elections,— and to the period during which
such elections may be contintied, — and relating to the trial of contro-
A'erted elections, and the proceedings incident thereto, — and relating to
the vacating of seats of members, — and the issuing and execution .f
new writs in case of any seat being vacated otherwise than by a (hsso-
lution, — shall respectively apply to elections of members to serve in the
House of Commons, for places situate in those provinces respectively.

27. Every House of Commons shall continue for five years from the
day of the return of the writs choosing the ."same, and no longer, subject,
nevertheless, to be sooner prorogued or dissolved by the Governor.

28. There shall be a session of the General Parliament once at least
in every year, so that a period of 12 calendar months shall not intervene
between the last sitting of the General Parliament in one .session and the
first sitting thereof in the next session.

29. The General Parliament shall have power to make laws for the
peace, welfare, and good government of the federated provinces (saving
the sovereignty of England), and especially laws respecting the following
subjects : —

1 . The public debt and property.

2. The regulation of trade and commerce.

3. The imposition or regulation of duties of customs on imports m\

export.", except on exports of timber, logs, masts, spars, deals.
and sawn lumber, and of coal and other minerals.

Resl. 1864.]

30 & 31 VrCT. c. 3 — GEN. GOV. POWERS. 749

lit, all the laws
uiiiou are in

4. The imix)sition and regulation of excise duties.

5. The raising of money by all or any other modes or systems of

taxation.

6. The borrowing of money on the public credit.

7. Postal service.

8. Lines of steam or other ships, railways, canals, and other works,

connecting any two or more of the provinces together, or
extending beyond the limits of any province.

9. Lines of steamships between the federated provinces and other

countries.

10. Telegraphic communication and the incorporation of telegraph

companies.

11. All such works as shall, although lying wholly within any pro-

vince, be specially declared by the Acts authorizing them to be
for the general advantage.

12. The census.

13. Militia — military and naval service and defence.

14. Beacons, buoys, and lighthouses.

15. Navigation and shipping.

16. Quarantine.

17. Sea coast and inland fisheries.

18. Ferries between any province and a foreign country, or between

any two proNnnces.

19. Currency and coinage.

20. Banking, incorporation of banks, and the issue of paper money.

21. Savings banks.

22. Weights and measures.

23. Bills of exchange and promissory notes.

24. Interest.

25. Legal tender.

26. Bankruptcy and insolvency.

27. Patents of invention and discovery.

28. Copyrights.

29. Indians and lands reserved for the Indians.

30. Naturalization and aliens.

31. Marriage and divorce.

32. The criminal law, excepting the constitution of courts of

criminal jurisdiction, but including the procedure in criminil
matters.

33. Rendering uniform all or any of the laws relative to property and

civil rights in Upper Canada, Nova Scotia, Xew Brunswick,
Newfoundland, and Prince Edward Island, and rendering
uniform the procedure of all or any of the courts in these
provinces ; but any statute for this purpose shall have no force
or authority in any province until sanctioned by the Legislature
thereof.
31. The establishment of a General Court of Appeal for the federated
provinces.

35. Immigration. .

36. Agriculture.

37. And generally i-especting all matters of a gent-ral character, njt

specially and exclusively reserved for the local Goverijmeuts

and Legislatures.
30. The General Government and Parliament shall have all powers
iioce.ssary or proper for j)erforming the obligations of the federated pro-
vinces, as part of the British Empire, to foreign countries, arising under
treatios between Greiit Britain and such countries.

I i

**Wp«M<»TOWH1W«!fWWt«.^t«„w«tt«B^

750 30 & 31 VICT. c. 3 — LOr. GOV. POWERS.

[RpM. 1864.

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31. The Qt'neral Parlmment may also, from time to time, estnhlish
additional courts, and the General Government may appoint judircs and
officers thereof, when the same shall appear necessary or for tbe^iniblic
advantage, in order to the due execution of the laws of Parliament.

32. All courts, judges, and officers of the several provinces shall aid
assist, and obey the General Government in the exercise of its rights aiui
powers, and for such purposes shall be held to be courts, judges and
officers of the General Government.

33. The General Government shall appoint and pay the ju(lnre.s of the
superior courts in each province, and of the County Courts of Uiiix-r
Canada, and Parliament shall fix their salaries.

34. Until the consolidation of the laws of Upper Canada, A^etr Bruu^.
wick, Nova Scotia, Neivfoundland, and Prince Ednard Fshmd the
judges of these provinces appointed by the General Government shall lie
selected from their respective bars.

35. The judges of the courts of Lower Canada shall be selected from
the bar of Lower Canada.

36. The judges of the Court of Admiralty now receiving snlaries .slinll
be paid by the General Government.

37. The judges of the .superior courts shall hold their oflicps diirin"
good behaviour, and shall be removable only on the address of both
Houses of Parliament.

Local Government.

38. For each of the provinces there shall be an executive officer
styled the Lieutenant-Governor who shall bo nj)pointed by the Governor-
General in Council, under the great seal of the federated province!!, dminir
pleasure ; such pleasure not tc Oe exercised before the e.xjjiration of tiie
first five years, except for (ause; such cause to be coiiimnnicnted in
writing to the Lieutenant-Governor immediately after the exercise of the
pleasure as aforesaid, and also by messages to both Houses of Pariia-
ment, within the first week of the first session afterwards.

39. The Lieutenant-Governor of each province shall be paid by the
General Government.

40. In imdertaking to pay the .salaries of the Lieutenant-Governors, the
Conference does not desire to prejudice the claim of Prince Eduard
Island upon the Imperial Government for the amount now paid fortiic
salary of the Lieutenunt-Cirovernor thereof.

41. The local Government and Legislature of each province shall lie
constructed in such manner as the existing Legislature of such inovince
shall provide.

42. The local Legislatures shall have power to alter or amend tlieir
constitution from time to time.

43. The local Legislatures shall have power to make laws respecting
the following subjects :

1. Direct taxation and the imposition of duties on the export of

timber, logs, masts, spars, deals, and sawn lumber, and of coals
and other minerals.

2. Borrowing money on the creilit of the province.

3. The establishment and tenure of local offices, and the apiwint-

ment and payment of local officers.

4. Agriculture.
6. Immigration.

6. Education ; saving the rights ami privileges which the Protestant
or Catholic minority in both Canadas may possess as to their
denominational schools, at the time when the union goes into
operation.

or iiniend their

Besl. 1864] 30 & 31 VICT. c. 3.— POWER OF PARDON.

751

7. The sale and management of public lands, excepting lands

belonging to the General Government.

8. Sea-coast and inland fisheries.

9. The establishment, maintenance, and management of peni-

tentiaries, and of public and reformatory prisons.

10. The establishment, maintenance, and management of hospitals,

asylums, charities, and eleemosynary institutions.

11. Municipal institutions.

12. Shop, saloon, tavern, auctioneer, and other licences.

13. Local works.

14. The incorporation of private or local companies, except such as

relate to matters assigned to the General Parliament.

15. Property and civil rights, excepting those portions thereof

assigned to the General Parliament.

16. Inflicting punishment by fine, penalties, imprisonment or

otherwise, for the breach of laws passed in relation to any
subject within their jurisdiction.

17. The administration of justice, including the constitution,

maintenance, and organization of the courts — both of civil
and criminal jurisdiction, and including also the procedure
in civil matters.

18. And generally all matters of a private or local nature, not

assigned to the General Parliament.

44. Tae power of respiting, reprieving, and pardoning prisoners
convicted of crimes, and of commuting and remitting of sentences in
wliole or in part, which belongs of right to the Crown, shall be admi-
nistered by the Lieutenant-Governor of each province in Council, subject
to any instructions he may from time to time receive from the General
Government, and subject to any provisions that may be made in this
behalf by the General Parliament.

Miscellaneous.

45. In regard to all subjects over which jurisdiction belongs to both
the general and local Legislatures, the laws of the General Parliament
shall control and supersede those made by the local Legislature, and the
latter shall be void as far as they are repugnant to or inconsistent with
the former.

46. Both the English and French languages may be employed in the
General Parliament and in its proceedings, and in the local Legislature
of Lower Canada, and also in the federal courts and in the courts of
Loioer Canada.

47. No lands or property belonging to the general or local Govern-
ment shall be liable to taxation.

48. All Bills for appropriating any part of the public revenue, or
for imposing any new tax or impost, shall originate in the House of
Commons or the House of Assembly, as the case may be.

49. The House of Commons or House of Assembly shall not ori-
ginate or pass any vote, resolution, address or Bill for the appropriation
of any part of the public revenue, or of any tax or impost to any
purpose, not first recommended by message of the Governor-General,
or the Lieutenant-Governor, as the case may be, during the session in
which such vote, resolution, address, or Bill is passed.

50. Any Bill of the General Parliament may be reserved in the usual
manner for Her Majesty's assent, and any Bill of the local Legislatures
may iu like manner be reserved for the consideration of the Governor-
General.

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752 30 & 31 VlfT. c. 3— MINES & MINERALS. [Resl. mi

51. Any Bill passed by the Gonerul Parliumcnt slinll be subject to
disallowance by Her Majesty within two years, as in the caso of Billii
passed by the Legishitures of the said provinces jitiurto, and in like
manner any Bill passed by a local Legislature shall be .subject to (lis-
allowance by the Governor-General within one year after the passing
thereof.

52. The seat of government of the federated provinces shall he
Ottawa, subject to tlie Koyal Prerogative.

53. Subject to any future action of tlie respective local Governments,
the seat of the local Government in Upper Canada shall be Toronto ;
of Lower Canada, Quebec; and the beats of the local Governments in
the other provinces shall be as at present.

Property and Liabilities.

54. All stocks, cash, barkers' balances and securities for money
belonging to each province, at the time of the union, except as herein-
afttr naentioned, shall belong to the General Government.

The following public works and property of each province slinll
^ *o the General Government j to wit : —

1 . Canals ;

2. Public harbours ;

3. Lif;hthouses and piers ;

Ste.' ' .\ts, dredges, and public ves.sels ;
5. Riv. r iird lake improvements;

Railway anil railway stocks, mortgages, and other debts due liv
railway companies ;

7. Military roads ;

8. Custom houses, post offices, and other public buildings, execiit

such as may be set aside by the General Government for

the use of the local Legislatures and Governments;
Property transferred by the Imperial Government, and known

as Ordnance property ;
Armouries, drill sheds, militju-y clothing, and muuitious of

war; and
Lands set apart for public purposes.

36. All lands, mines, minerals, and royalties vested in Her Majesty
in the provinces of Upper Canada, Lower Canada, Nova Scotia, New
Brunswick, and Prince Eduard Island, for the use of such provinces,
shall belong to the local Government of the territory in which the .«ame
are so situate ; subject to any trusts that may exist in respect to any of
such lands, or to any interest of other persons in respect of the same.

57. All sums due from purchasers or lessees of such lands, mines,
or minerals, at the time of the union, shall also belong to the local
Governments.

58. All assets connected with such portions of the public debt of any
province as are assumed by the local Governments, shall also belong to
those Governments respectively.

59. The several provinces shall retain nil other public property therein,
subject to the right of the General Government to assume any lands or
public property required for fortifications or the defence of the country.

. 60. The General Government shall assume all the debts and liabilities
of each province.

sr debts due bv

I munitions of

blic debt of anr

Resl. 1864] 30 8t 31 VICT. c. 3.— DEBTS OF PROVS. 763

61. The debt of Canada not specially assumed by Upper and Lower

Canada resi)ectively, shall not exceed at the time of the

union .'«62,500,000

Nova Scotia shall enter the union with a debt not

pxccedinK 8,(K)0,000

And Neio Brunswick, with a debt not exceeding - 7,000,000

62. In case Xova Scotia or New Brunswick do not incur liabilities
beyond tiiose for which their Governments are now bound, and which
shall maki) their debts at the date of union less than .'?8,000,000 and
S7 000,000, respectively, they shall be entitled to interest at 5 per cent.
on the amount not so incurred, in like manner as is herein-after provided
for XenJoioKlland and Prince Edward Island ; the foregoing resolution
Ijoiii" in no respect intended to limit the powers given to the respective
Governments of those provinces by legislative authority, but only to
limit the miixinnini amount of charge to be assumed by the General
Government, irovided always that the powers so conferred by the
lespectivt' Legislatures shall be exercised within five years from this
ilatp, or the .'^ame shall tlion lapse.

0.3. Xewfoundland and Prince Edward Island, not having incurred
(lelits eqiiiil to those of the other provinces, shall be entitled to receive,
liv Imlf-vi'iuiy payments in advance from the General Government, the
interest nt five per cent, on the difiference between the actual amount of
tlieir respective debts at the time of the union, and the average amount
of indebtedness per head of the i)opulation of Canada, Nova Scotia, and
ycu- Brunswick.

(il. In consideration of the transfer to the General Parlinment of the
powers of ta.\ation, an annual grant in aid of each province shall be
made, equal to 80 cents per head of the population, as e.stabiislied l)y
the census of IH61, the population of Newfoundland being estimated
at 130,000. Such aid shall be in full settlement of all future demands
upon tlie Goneial Government for local purposes, and shall be paid half-
yearly in advance to each province.

65. The pfisition of New Brunstoick being such as to entail large
immediate eharges upon her local revenues, it is agreed that for the
period of 10 years from the time when the union takes effect, an addi-
tional allowance of 363,000 per annum shall be made to timt province.
But that so long as the liability of that province I'cnmins under
$7,000,000, a deduction equal to the interest on such deficiency shall
be made from tiie S(j3,000.

66. Ill consideration of the sunvnder to the General Government by
XewfoiDidlaud of all its rights in mines and minerals, and of all the
uDgranted and unoccupied lands of the Crown, it is agreed that the sum
of 8150,000 shall each year be paid to that province by semi-annual
piiymcnts. Provided that that colony shall retain the right of opening,
constructing, and controlling roads and bridges through any of the saicl
lands, subject to any laws which the General Parliament nmy pass in
respect of the same.'

67. All engagements that may, before the union, be entered into
witli tlie Imperial Government for the defence of the country, shall be
assumed by the General Government.

68. The General Government shall secure, without delay, the com-
pletion of the Inter-colonial Railway from Jiivi^re-dn-Loup through
New Brunswick to Truro in N^ova Scotia.

69. The communications with the North-western Territory, and the
improvements required for the dexelopraent of the trade of the Great
West with tile seaboard, are regarded by this Conference as subjects of

S2310. 3 B

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m«(»'»Kwmii+vni..Mt<ai

Short title.

754 31 & 32 VrCT. c. 29— MED. PRACTITIONERS.

flSOH,

Interpretation
of Act.

Power to
Colonial
Legislatures
to enforce
registration of
persons re-
gistered under

the highpst importance to tho federated provinces, and shall be pro.
scented at the earliest possible i)eriod that the state of the fintmces will
permit.

70. The sanction of the Imperial and local Parlimnonts slmll be
sought for the union of the provinces, on the principles adopted by the
Conference.

71. That Her Mnjesty the Queen be solicited to deterinine the rank
and name of the federated provinces.

72. The proceedings of the Conference shall be authenticated by tho
signatures of the delegates and submitted by each delegation to its" own
Go\ernnient, and the chairman is authorized to submit a copy to the
Governor-General for transmission to the Secretary of State for the
Colonies.

1 certify that the above is a true copy of the ori"inal
Report of Resolutions adopted in Conference.

E. P. TACHii, Chairman.

31 & 32 VICT. (1868) c. 29.

Repealed by 49 & 50 Vict. c. 48. sec. 28.

An Act to amend the Law relating to Medical Prac-
titioners in the Colonies. [29th May 1868.]

WHEREAS by the thirty-first section of "The Medical Act,"
passed in the session holden in the twenty-first and twenty.
second years of Her Majesty, chapter ninety, it is enacted as follows :
" Every person registered under this Act shall be entitled, according
to his qualification or qualifications, to practise medicine or siirgorv,
or medicine and surgery, as the case may be, in any part of Hit
Majesty's dominions, and to demand and recover in any Court of
Law, with full costs of suit, reasonable charges for [)rofessioiinl aid,
advice, and visits, and the cost of any medicines or other medical
or surgical appliances rendered or supplied by him to his patients;"
And whereas it is expedient to amend tiie said enactment : Be it enact-
ed by the Queen's most Excellent Majesty, by and with the adyice ami
consent of the Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority of tho same, as
follows :

1 This Act may be cited as " The Medical Act Amendment Act,
1868."

2. The term " Colony " shall in this Act include all of Her Majesty's
Pos.sessions abroad in which there shall exist a Legislature as heroin-
after defined, except the Channel Islands and the Is/e of Man.

The term " Colonial Legislature " shall signify the Authority other
than the Imperial Parliament or Her Majesty in Council competent to
make Laws for any Colony.

3, Every Colonial Legislature shall have full jwwer from time to
time to make Laws for the purpose of enforcing the registration within
its jurisdiction of i)ersons who have been registeretl under " The Medi-
cal Act," anything in the said Act to the contrary notwithstanding;
Provided, however, that any person who has been duly registered under
" The Medical Act " shall be entitled to be registered in any colony,

'luino the rank

1868.]

31 & 32 VICT. c. 106.— RUPERT'S LAND.

766

upon payment of the fees (if any) required for such registration, and " Tl>« Medical
upon proof, in sucli mnnner as tlie said Colonial Legislatiiie shall direct, ■^*^'*
of his registration un<ler the said Act.

See Reg. r. College of Physicians, Ontario, 1H79; 44 U. C. Q. B. 5C4.
teB. N. A. Act, ante, 367, sec. 03], where it was held that a medical
practitioner, registered in England under the Medical Act, was entitled
without examination to practise in Ont4irio on payment of the proper
fees. The second section of the ahove Act, 31 Viet. c. 29, extending the
Medical Act of 1858, 21 & 22 Vict. c. DO, by giving the word "Colonies"
such an extension as embraced Canada [see 49 & 50 Vict. c. 48].

Amendment Act,

31 & 32 VICT. (1868) c. 105.
[Included in Sch. to S. L. R. Act, 1893, c. li.]

An Act for enabling Her Majesty to accept a
surrender upon terms of the lands, privileges,
and rights of " the Governor and Company of
Adventurers of England trading into Hudson's
Bay," and for admitting the same into the
Dominion of Canada. [Sist July 1868.]

" T TTHEREAS hy certain letters patent granted by Recital of

' » Ilis late IMajesty King Charles the Second in Hudson's Bay
the twenty-second year of his reign certain persons therein car 2!"^' ^^
named were incorporated hy the name of " The Governor
and Company of Adventurers of Enylanci trading into
Hudson's Bay,'* and certain lands and territories, rights
of government, and other rights, privileges, liberties,
franchises, powers, and authorities, were thereby granted
or purported to be granted to the said Governor and
Companv in His Majesty's dominions in iVbW// Jlmmm ;
"And whereas by th(5 British North America Act,
1867, it was (amongst other things) enacted that it
should be lawful for Her Majesty, by and with the
advice of Her Majesty's most honourable Privy Council,
on address from the Houses of the Parliament of
Canada, to admit Rupert's Land and the north-western
territory, or either of them, into the Union on such
terms and conditions as are in the address expressed
and as Her Majesty thinks fit to approve, subject to the

provisions of the said Act :

3 B 2

1 .1

766 31 A 32 VKT. c. 105.— SUR. OF RUPERT'S LAND.

[IHfiR.

B^eiral of
ngreemcnt of
»urrfi\<lor.

Short title.

" And whereas for the purpose of carry inj> into effect
the provisions of the said British North America Act,
1867, and of admitting Rupert's Land into the said
dominion as aforesaid upon such terms as Ihn' Miijestv
thinks fit to approve, it is expedient that tlio said lands,
territories, rights, privileges, liherties, francliises, ])o\veis,
and authorities, so far as the same hav(^ been laAvt'nlly
granted to the said Company, shouhl be surrendtned to
Her Majesty, her heirs and successors, upon such teims
and conditions as may be agreed upon by and l)etweeu
Her Majesty and the said Governor and Company
as herein-after mentioned :"

Be it therefore enacted by the Queen's most Excelbnt
Majesty, 1)y and Avith the advice and consent of the
Lords Spintual and Temporal, and Commons, in this
present Parliament assembled, and by the autliovity ol'
the same, as follows :

1. This Act may be cited as " Bupert's Land Act,
1868."

Definition of 2. For the purposes of this Act the term " Bujmi'n
Land." Land " shall include the whole of the lands and tovvi-

tories held or claimed to be held by the said Govevnov

and Company.

Power to H. r 3^ It shall he competent for the said (Tovornor and

Majesty to ^

icceptsur- Company to surreiuler to Her Majestv, and lor ITev

i-ender of land.-i, -.yr • , 1 • , j i i '• 11

&c. of the Com Majesty by any uistrument under her sign manual and
{nin"*^trrm9! *^'^" siguct to acccpt a Surrender of all or any of the lands,
territories, rights, privileges, liberties, franchises, powers,
and authorities Avhatsoever granted or purported to he
granted by the said Letters Patent to the said Governor
and Company within Rupert's Land, upon such terms
and conditions as shall be agreed upon by and between
Her Majesty and the said Governor and Company ;
provided, however, that such surrender shall not he
accepted by Her Majesty until the terms and conditions
upon which Rupert's Land shall be admitted into the
said Dominion of Canada shall have been approved of

1808] 31 & 32 VICT. c. 106.—" TUADE AND COMMERCE." 767

bv Her Majesty, and embodied in an address to Her
Majesty from both the Houses of the Parliament of
Canada in pursuance of the one hundred and forty-
sixth section of the British North America Act, 1867 ;
aud that the said surrender and acceptance thereof shall
l)e null and void vuiless within a month from the date
of such acceptance Her Majesty does by order in Council
under the provisions of the said last-recited Act admit
Eupeit'sLand into the said Dominion ; provided further,
that no charge shall be imposed by such terms upon
the Consolidated Tund of the United Kingdom.

4. Upon the acceptance by H- ;• Majesty of such jf,^^"f"if^"
surrender, all rights of government and proprietary jights of the
rights, and all other privileges, liberties, franchises,
powers, and authorities whatsoever, granted or purported
to])e granted by the said Letters Patent to the said Gov-
ernor and Company within MuperVs Land, and which
shall have been so surrendered, shall be absolutely ex-
tinguished; provided that nothing herein contained
shall prevent the said Governor and Company from con-
tinuing to carry on in JRupert^s Land or elsewhere trade
and commerce.

Company.

3. It shall be competent to Her Majesty by any such
order or orders in Council as aforesaid, on address from
the Houses of the Parliament of Canada, to declare that
Rtq)ert^ s Land shall, from. 8l date to be therein mentioned,
he admitted into and become part of the Dominion of
Canada; and thereupon it shall be lawful for the Par-
liament of Canada from the date aforesaid to make,
ordain, and establish within the land and territory so
admitted as aforesaid all such laws, institutions, and
ordinances, and to constitute such courts and ofl&cers,
as may be necessary for the peace, order, and good
government of Her Majesty's subjects and others therein :
Provided that, until otherwise enacted by the said Par-
liament of Canada, all the powers, authorities, and juris-
diction of the several Courts of Justice now established

Power to Her
Majesty by
order in Coun-
cil to admit
Rupert s Land
into iind form
part of the
Dominion of
Canada.

Jurisdiction of
present courts
and oflBcei-s
continued.

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Shoit title.

768

31 & 32 VICT. c. 129.— COL. SURVEYORS. [i^es.

in Rupert's Land, and of the several officcr.s thereof,
and. of all magistrates and justices now actini? within
the said limits, shall continue in full force and effect
therein.

iSee 32 k 33 Vict. c. 101 .]

31 & 32 VICT. (1868) c. 129.

[From "Be it enacted" to "same as follows"
repealed by S. L. R. Act, 1893, 66 Vict. c. 11.]

Repealed hy Merchant Shipping Act, 1891-, 57 &o8
A'^ict. c. 60., 22 sehedulo ; hut see sees. 90 & 727 <>f that
Act, post, where this Act is in effect re-cnact(Ml.

This was an Act to am(>nd the law relating to the
registration of ships in Briti.sh possessions, and the
appointment of surveyors in the colonies.

32 & 33 VICT. (1869) c. 10.

Sees. 3 & 8 repealed by S. L. R. Act, 1883 (No. 1),
& 47 Vict. c. 39. Amended by 47 & 48 Vict. c. 31,
Preamble and to " same, as foUows " repealed by S. L. E.
Act, 1893 (No. 2), 56 & 57 Vict. c. 54.

An Act for authorizing the Kemoval of Prisoners
from one Colony to another for the purposes of
Punishment. \\'dth May 1869.]

WHEREAS it is expedient to amend the law re-
lating to the removal of prisoners from one colony
to another for the purposes of punishment :

Be it enacted by the Queen's most Excellent Majesty,
by and with the advice and consent of the Lords Spiritual
and Tempoml, and Commons, in this present Parliament
assembled, and by the authority of the same, as follows:

1. This Act may be cited for all purposes as "The
Colonial Prisoners Removal Act, 1869."

I860.] ;»2 & 33 VKT. «•. 10— REMOVAL OF I'RISONRHS. 7^9

2. For the purposes of this Act —

The term " colony " shall not includt^ any place Uifiiiitiou of
within the United Kingdom, the lale of Man, or ..'cobny:"
the Channel Islands, or within such territories as
may for the time heing be vested in Her Majesty
by virtue of any Act of Parliament for the govern-
ment of India, but shall include any plantation,
territory, or settlement situate elsewhere within
Her Majesty's dominions, and subi(;ct to the same
local government ; and for the purposes of this
Act all plantations, territories, and settlements
under a central legislature shall j . deericd to be
one colony under the same local govc.nment:

Tiio term "governor" shall include the officer for "Oovcmor:"
the time being administering the government of
any colony :

The term "legislative body" shall mean any house " Legisi'itivc
of assembly or other body of persons having legis-
lative powers in the colony, and where such ')ody
of persons consists of two separate houses it shall
include both houses, and where there are local le-
gislative bodies as well as a central legislative body
shall mean the central legislative body only.

3. The foui-th section of the Act passed in the sixth ^^'■'- ^ "^
year of the reign of His late Majesty King George the repetiiod.
Fourth, intituled " An Act for punishing offences com-
mitted by transports kept to labour in the colonies, and

better regulating the powers of justices of the peace in
New South Wales," is hereby repealed, except so far as
may be necessary for supporting or continuing any pro-
ceedings taken thereunder.

4. Any two colonies may, with the sanction of an Pri^ollcri< mny
Order of Her Majesty in Council, agree for the removal from one

of any prisoners under sentence or order of transporta- Unou'ur for
tion, imprisonment, or penal servitude from one of such ^^n^g^^cnt
colonies to the other for the purpose of their undergoing
in such other colony the whole or any part of their

I !

HtJ}BR(H»BWw;w«i'w«ittafR!t?»riit«sM(i«mw««^

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760

32 & 33 VICT. c. 10.— REMOVAL OF PRISONERS. [1^69

Removal of
prisoners to 1 •
by warrant.

Prisoner in
legal custody
during re-
moval.

punlshnieut, and for the return of such prisoners to the
former colony at the exj)iration of their punishnient, ov
at such other period as may he agreed upon, upon such
terms and suhject to such conditions as may seem oootl
to the said colonies.

The sanction of the Order of Her Majesty in Council
may he ohtained, in the case of a colony havinn; a lewis.
lative hody, on an address of such hody to llev Majesty.
and in the case of any colony not having a legislative
hody, on an addw^ss of the Governor of such colony ; and
such sanction shall he in force as soon as such Oidorin
Council has heen published in the colony to which it
relates.

The agreement of any one colony with anotliev shall
for the purposes o^ tliis Act he testified by a Avriting
imder the hand of the Governor of such colony.

5. Where the sanction of Her Majesty has hon\ given
to any siu'h agreement as aforesaid relating to the re-
moval of prisoners from one colony to another for the
purpose of undergoing their punishment, any prisouei's
under sentence or order of transportation, imprisonment,
or penal servitude may be removed from such one colony
to tlie other under the authority of a warrant signed hy
the Governor, and addressed to the master of any ship,
or any other person or persons ; and the person or per-
sons to whom such warrant is addressed shall have power
to convey the prisoner therein named to such other
colony, and to deliver him when there into the custody
of any authority designated in such warrant, or em-
powered by the Governor of such last-mentioned colony
to receive such prisoner.

6. Every prisoner shall, from the time of his leaving
his prison in one colony to ihe time of his reaching liis
})rison in the other colony, be deemed to be in the legal
custody of the person or persons empowered to remove
him, and to be subject to the same restraint, and, in
the event of misbeha>iour, to the same punishment, as

18«9.]

32 & 33 VIOT. 0. 10.— '< LEGAL " CUSTODY.

761

if he had continued in prison, and as if the person or
persons empowered to remove him were the gaoler or
gaolers of such prison ; and if he escape or attempt to
escape from such custody, such i)risoiier and every per-
son aiding or attempting to aid him in such escape,
sliall he subject to the same punishment as if such
escape or attempt to escape were an escape or attempt
to escjipe from prison.

A prison shall mean any place of confinement or any
place where the prisoners undergo i)unishment.

Any person punishable uiuler this section may be
tried and punished either in the colony from Avhich the
prisoner is being removed, or in the colony to which he
is being removed ; and the law applicable to such per-
son shall be the law of the colony in which he is tried.

7. Every prisoner shall, upon his delivery to the Li«wiityof

I'.ip , .,.. , prisoner in

person having lawful authority to receive; him in the colony to which

colony to wliich he is removed, be subjc^ct witliin such

colony to the same laws and regidations, and shall be

dealt with in all respects in the same manner, as if he

had been tried and received the same sentence in such

colony as the sentence which has been passed on him in

the colony from which he is removed.

8. And Avhereas from time to time divers prisoners Removals here-

, „ -rr tr ' »i« tofore Blade to

nave been removed from one of Her Majesty s colonies be valid for all
to another, and doubts have been entertained whether p"^"*** • .
such removals were legal, and how far such prisoners
could be legally dealt with in the colonies to which they
have been removed, and it is expedient that such doubts
should be removed : Be it enacted as follows :

The removal of any prisoner heretofore made from
one colony to another by or under the authority of the
Governor of either of such colonies, and any act done in
relation to such removal by or under such authority,
and the detention, custody, and treatment in either
colony of the prisoner so removed, shall be deemed to
have been as lawful and effectual for all pui'poses what-

III

|vM'

■i

81 & 32 Vict.
e. lOo.

762 32 & 33 VICT. c. 101.— RUPERT'S LAND LOAN.

[1869.

soever as if this Act had been passed at the time of such
removal, and had been in force in respect of both the
colonies referred to in this section, and such removal
had been duly made in pursuance of this Act. [liSeepost,
47 & 48 Vict. c. 31.]

32 & 33 VICT. (1869) c. 11.

Amended by 46 & 47 Vict. c. 41. Sec. 6 repealed
by S. L. R. 1883, and certain Avords repealed by
S. L. E. Act No. 2, 1893, c. 54. Finally whole Act re-
pealed by Merchant Shipping Act, 1894, 57 & 58 Vict.
c. 60.

This was an Act for amending the LaAV relating to
the Coasting Trade and Merchant Shipping in British
Possessions, and its chief enactr"^nts were re-enacted in
the Merchant Shipping Act of 1894, sees. 736 and 102.

32 & 33 VICT. (1869) c. 101.

Preamble and to "same as follows" repealed by
S. L. R. Act No. 2, 1893, 56 & 57 Vict. c. 54.

An Act for authorizing a Guarantee of a Loan to bo
raised by Canada for a payment in respect of the
transfer of Rupert's Land. [11th Any, 1869.]

WHEREAS by the Eiijjert's Zand Act, 1868, power wiis },'iveii for
the GoMTUor and Company of A(lventurer.>s of Engluiid tnuliii;;
into Hudson's Hay (in this Act referred to as the Hudson's Buy Com-
pany) to surrender, and for Her Majesty to accept a surrcuik'r of
Jtupert's Land (as therein defined) for the purpose of admitting the same
into the dominion of Canada :

And wliereas an arrangement has been made for the surrender b) the
Hudson's Bay Company of Ruperfs Land and for the admission thereof
into the dominion of Canada :

And whereas part of the terms of the said armngeuieut were the
payment of three hun(hed thousand pounds to the Hudson's Bay
Company by the Government of Canada:

And whereas the Government of Canada propose to raise the said sum
of three hundred thousand pounds by way of loan, and it is exiiedient to
authorize the Commissioners of Her Majesty's Treasury, in this Act
referred to as the Treasury, to guarantee the interest of such loan :

Be it enacted by the Queen's most Excellent Majesty, by and with the
advice and consent of the Lords Spii'itual and Temporal, and Couimons,

] 32 & 33 VICT. c. 101.— GUARANTY OF LOAN. 763

in this present Parliament assembled, anil by the authority of the same,

as follows :

1. Tliis Act may be cited as " The Canada {Rupert's Land) Loan short title. '
Act! 1869."

2. The Treasury may guarantee, in such manner and form as they power to
think fit, the payment of the interest, at a rate not exceeding four per Treasury to
cent., on any principal money not exceeding the sum of three hundred guarantee loan,
thousand pounds sterling to be raised by way of loan by the Government

of Canada for the purpose of the said payment to the Hudson's Bay
Company.

3. The Treasury shall not give any guarantee under this Act unless Conditions of
luul until provision is made by an Act of the Parliament of Canada or guarantee,
otherwise to the sjitisfaction of the Treasury —

(1.) For raising and appropriating the said loan :

(2.) For charging the consolidated revenu'; fund of Canada with the
payment of the princip-il and iiiterest of the said loan imme-
diately after the charge of the loan for fortifications created by
au Act of the Parliament of Canada of the year one thousand
eight hundred and sixty-eight, chapter forty-one, or to be
created by any subsequent Act in respect of sums paid out of
the Consolidated Fund of the United Kingdom on account of
such last-mentioned loan :

(3.) For payment by the Government of Canada of a sinking fund at
the rate of one jjer centum per annum on the entire amount of
the said loan, and for charging the consolidated revenue fund
of Canada with the payment of such sinking fund immediately
after the principal and interest of the said loan :

(4.) For charging the consolidated revenue fund of Canada with any
sum issued out of the Consolidated Fund of the United
Kingdom under this Act, with interest thereon at the rate of
five per centum per annum, immediately after the sinking fund
of the said loan :

(5.) For payment of the money raised by the said loan to four
trustees, nominated from time to time, two by the Treasury and
two by the Government of Canada, and for the application of
such money under the direction of those trustees :

(6.) For remitting to the Treasury the annual sums for the sinking
fund by equal half-yearly payments, in such manner as they
from time to time direct, and for the investment and accumula-
tion thereof under their direction in the names of four trustees
nominated from time to time, two by the Treasury and two by
the Government of Canada.

4. The said sinking fund may be invested only in such securities as Application of
the Government of Canada and the Treasury from time to time agree sinking fund,
upon, and shall be applied from time to time, under the direction of the

Treasury, in discharging the principal of the said loan and the interest
arising from such securities, and the resulting income thereof shall be
invested and applied an part of such sinking fund.

5. Every Act passed by the Parliament of Canada which in any way Alteration of
impairs the priority of the charge upon the consolidated revenue fund of Act relating to
Canada created by that Parliament of the said loan and the interest an<l guaranteed
sinking fund thereof, and the sums paid out of the Consolidated Fund of '**"•

the United Kingdom and the interest thereon, shall, so far only m it :'•■

■■■ I

! !

UHltll-i

t . :l

764

' ■ 1
1. , I

i * I

Issue out of

Consolidated

Fund.

Certificate of
amount paid
out of Con-
solidated Fund.

Accounts to lie
laid before
Parliament.

Short title.

Capacity of an
alien as to
property.

33 & 34 VICT. c. 14.— ALIENS AS SUBJECTS. [i87o.

impairs such priority, be void, unless such Act has been reseived for the
significiition of Her Majesty's pleasure.

6. The Trciisuiy are hereby authorizerl to cause to he issued from
time to time, out of the growing produce of the Consolidfitod FunJ of
the United Kingdom, such sums of mom-y us may at any timi; he
required to be paid to fulfil the guanmtee under this Act.

7. The Treasury may, from time to time, certify to one of Hor
Majesty's Principal Secretaries of State the amount which has liren paid
out of the Consolidated Fund of the Ignited Kingdom to fullij thp
guarantee under this Act, and the date of such i)aymciit ; siidi cprtiticatc
shall be communicated to the Governor of Canada, and shall lie ('oikIu-
sive evidence of the amount having been so paid and of the tinu^ when
the same was so paid.

8. The Treasury shall cause to be prepared and laid bcforo liotli
hou.ses of Parliament a statement of any giuirantee given under iliis Act
and an account of all sums issued out of the Consolidated Fund of tlu'
United Kingdom for the purposes of this Act, Avitliin one montli iiricr tli,i
same are so given or issued, if Parliament be then sitting, or if Parliament
be not sitting, then within fourteen days after the then next meotiiiirof
Parliament.

33 & 34 VICT. (1870) c. 14.

Two last paragraphs of sec. 11 amended by 33 & 3i
Vict. c. 102. [see next Act]. Amended by 35 & 36
Vict. c. 39. Sec. 18 and Schedule rej^ealed hj S. L. E,
Act 1883, 46 & 47 Vict. c. 39. Preamble to "same
as follows"; Sec. 5 to "Act" and from ".shall not"
to " but," repealed by S. L. R. 1803, No. 2, 56 & 57
Vict. c. 54.

[See Canada's Naturalization Act, li. S. C. 1H86, c. 1 13., as Ijeiiig suli-
stantially the same as; this Act.]

The Imperial Act.

An Act to amend the Law relating to the legal condition
of Aliens and British Subjects. [12th 3Iay 1870.]

WHEREAS it is expedient to amend the law relating to the le^al
condition of aliens and British subjects :
Be it enacted by the Queen's most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Coinmons,
in this present Parliament assembled, and by the authority of tlic !>nme,
us follows :

1. The Act may be cited for all purposes as " The Naturalization Aft,
1870."

Status of Aliens in the United Kingdom.

2. Real and personal property of every description may be taken, ae-
quired^ held, and disposed of by an alien in the same manner in all
reelects »s by a natmal-boru British subject; and a title to real AHd

1870.] 33 & 34 VICT, c 14.— BRT. STTBJ. AS ALIEN.

765

iralizatioii Act,

personal property of every description may be derived through, from, or
in succession to an alien, in the same manner in nil re.si)ect3 as through.
from, or in succession to a natural-born British subject : Provided, —
(I.) Tliat this section shall not confer any right on an alien to hold
real pro[)erty situate out of the United Kingdom, and shall not
([ualify an alien for any office or for any municipal, parliamen-
tary, or other franchise :
(1) Tliatthis section shall not entitle an alien to any right or privilege
as a British subject, except s\ich rights and privileges in res|)ect
of pro[)erty as are hereby expressly given to him :
(3.) That this section shall not afPect any estnte or interest in real or
per.sonal property to which any person has or may l)ecome en-
titled, either mediately or immediately, in possession or expect-
ancy, in pursuance of any disposition made before the passing
of this Act, or in j)ursuauce of any devolution by law on the
death of any person tlying before the passing of this Act.

3. Where Her Majesty has entered into a convention with any foreign
state to tiic effect that the subjects or citizens of that state who have been
natunilized as British subjects may divest themselves of their status as
such sul),!' *s, it shall be lawful for Her Majesty, by Order in Council,
to declare tiiat such convention has been entered into by Her Majesty ;
niul from and after the date of such Order in Council, any person being
originally a sul)ject or citizen of the state referred to in such Order, who
has been naturalized as a British subject, may, within such limit of time
ax amy lie provided in the convention, make a declaration of alienage, and
from and after the date of his so making such declaration such person
siiall he legarded as an alien, and as a subject of the state to which he
originally belonged as aforesaid.

A declaration of alienage may be made as follows ; that is to .say, — If
the declarant be in the United Kingdom in the presence of any justice
of the peace, if elsewhere in Her Majesty's dominions in the presence of
any judge of any court of civil or criminal jurisdiction, of any justice of
the peace, or of any other ofiicor for the time being authorised by law in
the |)lace in which the declarant is to administer an oath for any judicial
orother h'gal purpose. If out of Her Majesty's dominions in the presence
of any olliccr in the diplomatic or considar service of Her Majesty.

4. Any person who by reason of his having been born within the
dominions of Her ^lajcsty is a natinal-born subject, but who also at the
time ( f his birth l)ecaine under the law of any foreign state a subject of
sucii state, and is still such subject, may, if of full age and not under any
disithiiity, make a <U'(daration of alienage in manner aforesai<l, and from
and after tlic nuiking of such declaration of alienage stich i)ersou shall
cease to he a British subject. Any person who is born out of Her Ma-
jesty's dominions of a father being a British subject may, if of full age,
and not iwidcr any disability, make a declaration of alienage in manner
aforesaid, and from and after the making of such declaration shall cease
to he a British subject. [R. S. C. 1HH6, c. 113. sec. 6.]

5. From and after the passing of this Act, an alien shall not be entitled
to he tried l)y a jury de medietate lingute, but shall be triable in the same
manner as if he were a natural-born sid)ject.

Expatriation.

6. Any British subject who has at any time before, or may at any time
iiftei' the passing of this Act, when in any foreign state and not under
any disnbiljty voluntarily Ix-coine naturalized in such state, shall from

Power of
naturalized
aliens to divest
themselves of
their status in
ccrtjiin cases.

How British-
born subject
may cea.so to
lie such.

Alien not
entitled to jury
dc medietate
linguu!.

Capacity of
British subject
to renounce
allegiance to
Her Miu'eity.

I i

I '

■ '<

«yiV*flir!i'inf»f,f;»Mi"

iriiaatrjr"#*<«»**4rt«.rtftJ'"«-»^f**»i?i*'«^r»f.;tn«

766

33 & 34 VICT. c. H.—ALIENS & BIRTHPLACE. [i87o

Ccrtifloato of
naturalizntioD.

and after the time of hi.s so having become naturalized in such foreiffn
state, be deemed to have cea.sed to l)e a British subjeca and hv recnrded
as an alien ; Provided, — "

(1.) That where any British snbjeet has before the passing of this Act
voluntarily become nalinalized in a foreign st4iti' iiml ypt is
desirous of remaining a British snbjeet, he mav, nt any time
within two years after the passing of this Act, make a (Icelfiriu
tion that he is desirous of remaining a British suliject nnd
U[)on such declaration herein-after referred to as a declaration
of Briti.sh nationality being made, and ui)on his taking tlie oath
of allegiance, the declarant shall l)e deemed to bo and to Imve
l)ee:i continually a British subject ; with this qualification that
he shall not, when within the limits of the foreign state in whicli
he has been naturalized, be deemed to be a British snhjeet
luiless he lins ceased to be a subject of that state in pursunncp
of the laws thereof, or in pursuance of a treaty to tJiat effect :
(2.) A declaration of British nationality may be made, and the ofitli of
allegiance be taken as follows ; that is to say, — if tjie (U'lJamnt
be in the United Kingdom in the presence of a justice of the
pence ; if elsewhere in Her Majesty's dominions in tJie prcspnee
of any judge of any court of civil or criminal jurisdiction, of
any justice of tiie peace, or of any other oiTicer for the time
being aiithorized by law in the place in which the declarant is
to administer an oath for any judicial or other legal piuposo.
If out of Her Majesty's dominions in the jnesence of anv
officer in the diplomatic or consular service of Her Maje.stv.

Naturalization and resumption of British Nationality.

7, An alien who, within such limited time before making the applica-
tion herein-after mentioned as may be allowe<l by (me of Her Majesty's
Principal i«ecretaries of State, either by general order or on any special
occasion, has resided in the United Kingdom for a term of not le.'<s than
five years, or has been in the service of the Crown foi- a term of not less
than five years, and intends, when naturalized, either to reside in the
United King<lom, or to serve under the Urown, may apply to one of Her
Majesty's Princii)al Secretaries of State for a certificate of natnrai-
ization.

The aj)plicant shall adduce in support of his application such evidence
of his residence or service, and intention to reside or serve, as such
Secretary of State may require. The siud Secretary of State, if satisfied
with the evidence adduced, shall take the case of the ai)pli(ant into
consideration, and may, with or without assigning any reason, give or
withhold a certificate as he thinks most contlucive to the public good, and
no appeal shall lie from his deci.sion, bu* such certificate shall not take
effect imtil the applicant has taken the oath of allegiance.

An alien to whom a certificate of naturalization is granted shall in the
United Kingdcmi be entitled to all political and other right.s, powers, and
privileges, and be sidyect to all obligations, to which a natuial-liorn
British subject is entitled or subject in the Uni cd Kingdom, witii this
qualification, that he shall not, when within tlie limits of the foreign
state of which he was a .subject previou.sly to obtaining his certiiicateof
naturalization, be deemed to be a Biitish subject unless he has ceased to
be a subject of that state in pursuance of the hiws thereof, or in
pursuance of a treaty to that effect.

Tlte said Secretary of State may in manner aforesaid grant »
special certificate of naturalization to any person with respect to whose

1870.]

33 & 34 VICT. c. 14.— MARRIED WOMEN.

767

nationality as a British .subject a doubt exists, and he may specify in
such cei'liticate that the givint thereof is made for tiie purpose of quieting
doubts lis to the right of such person to be a Brit'sh subject, and the
fffant of such special certificate shall not be deemed to be any admission
diat the person to whom it was grunted was not previously a British
subject.

An alien who has been naturalized previously to the passing of this
Act miiv apply to the Seert^tary of State for a certificate of naturaliza-
tion under this Act, and it shall be lawful for the said Secretary of State
to "rant such certificate to such naturalized alien ui»on the same terms
ami subject to the same conditions in and upon which such certificate
might have been granted if such alien had not been previously naturalized
in the United Kingdom.

8, A natural-born British subject who has become an alien in Certificate of
pursuance of this Act, and is in this Act referred to as a statutory alien, w-admission
may, on performing the same conditions and adducing the same evidence *° r"''**.^

as is required in the case of an alien applying for a certificate of national- ^'

ity, ai)ply to one of Her Majesty's Principal Secretaries of State for a
certificate herein-after i-eferred to as a certificatti of re-a<hnission to
British nationality ; re-admitting him to the status of a British subject.
The said Secretary of Stjvte shall have the same discretion as to the
giving or withholding of the certificate as in the case of a certificate of
naturalization, and an oath of allegiance shall in like manner bo
required previously to the issuing of the certificate.

A statutory alien to whom a certificate of re-admission to British
nationality has been granted shall, from the date of the certificate of re-
admission, but not in respect of any previous transaction, resume hi.s
position as a British subject ; with this qualification, that within the
limits of the foreign statt; of which he became a subject he shall not be
deemed to be a Briti.sh subject unless he has ceased to be a .subject of
that foreign state according to the laws thereof or in pursuance of a treaty
to tliat effect.

The jurisdiction by this Act conferred on the Secretary of State in the
United Kingdom in respect of the grant of a certificate of re-admission
to British nationality, in the case of any stwtnfory alien li«»ing in any
British possession, may be exercised by the Governor of such possession ;
and residence in such possession shall, in the case of such person, 1)0
deemed equivalent to residencre in the United Kingdom,

9. The oath in this Act referred to as the oath of allegiance .shall be Form of oath
in the form following ; that is to say, of allegiance.

"I do swear that I will be faithful and bear true

allegiance to Her Majesty Queen Victoria, her heirs and successors,
according to law. So help me God." [The oath of allegiance given
in R, S. C. c. 113. Sch. A, is slightly different, following the form of the
oath given in 31 Geo. 3. c. 31. ami tJiking in the words "Dominion of
Canada."]

II )

^ i

National status of married women and infant children.

he nia<le with respect to

the National status
of married

10. The following enactments .shall
national status of women and children :
(1.) A married woman shall be deemed to be a subject of the state of ^^'^T^lmj

which her hu.sband is for the time being a subject :
(2.) A widow being a natural-born British subject, who has become

an alien by or in consequence of her marriage, shall be deeme<l

aHH)Wiw«t»5 '«"«•■ •»*"'f»r-";j!>Tii,

768 33 * 34 VTCT. c. 11— KEG. BY SEC. OF STATE. [1S70

to be n Htfttiitorv alien, and may as siicli at any time iliirin»
\vi<lowho()»! obtain a cpitilicato of ro-adinissioii to IJiitish
nationiility in niiinnor provided by this Act :

(3.) Where 1 lie father bcin<^ a Mritish subject, or tlie ninthci lici,,,, „
Hritish sidijcct nud a widow, l)eeonics an alien in pursiiniuMMii'
this Act, every child of such falhei' or inodici' wlio iliirinir
infancy has become I'csident in the conntry where the I'iiiJicr o"
mother is naturalized, and has, accord in <;; to the iiiws of such
cotmlry, become naturalized therein, shall be deemiMl to Ik. ^
subject of the stale of which the father or mother lins iHrdinc n
subject, and not a Hritish sidyeet:

(4.) Where the fatliei-, or the motlici- bein<; a widow, liiis nlitiiiin.d a
cerlifi<'ate of re-jidmission to Hritish nationnlily, cvciy diiiii
of such father or mother who durin<^ inlinicy lins iid'onic
resident in the Mi'itisli dominions with such father or imitlii.v
shall be deemed to have resumed the position of n niitisji
subject to all intents :

(6.) Where the father, or the mother bein;^ a widow, has obtained a
certilicate of natin-alization in the United Kinf;doni, cvcrv
child of such fiithcr or mother who (lurin<r infancy li;is Jiccoiiic
resident with such father or mother in any part of the I'liitcd
King<lom, slndl be deemed to be a laituralized Hritish siilijcct.

liegulationN
08 to regis-
tmtiou.

Siipplemintal Provisions,

11. One of Her Majesty's Principal iSecretaries of State may liy
regulation jjrovidefor the following matters ; — \Sve Cn/tadn \vt ]?. (S. C.
188G e. 113. s. 28; CJovcrnor in Council may naike these regulations.]

(1.) The form and registration of declarations of Britisli nationality:

(2.) '1 he form an<l registration of certiticates of naturalizatieii in tlm
United Kingdom :

(3.) The form and registration of ceitiiicales of re-admission to
liritisli nationality :

(4.) The form and registration of declarations of alieiaigc :

(o.) The registration by officers in the diplomatic or consular service
of Her Majesty of the births and di'aths of British subjects who
may be born or die out of Her Majesty's dominions, and of the
marriages of persons niarried at any of Her Majesty's embassies
or legations:

(G.) The transmission to the United Kingdom for the imrpese ef
registration or satV' keeping, or of being i)roduced as evideiiee
of any declarations or certificates made in |)ursuance of this
Act out of the United Kingdom, or of any copies of su<h
tlcclarations or certiticates, also of copies of entries contained
in any register kept out of tin' United Kingdom in pursuance
of or for the puipose of carrying into effect the provisiims (if
this Act :

(7.) With the consent of the Treasury, the imposition and applicatieii
of fees in respect of any registnition authorized to be made by
this Act, and in resjiect of the nuvkiug any declaration or tiie
grant of any certilieate authorized to be made or granted by
this Act.

The said Secretary of State, by a further regulation, may repeal, niter,
or a<l<l to any regnhition previously made by him in j)ursuanee of this
section.

TK. [1S70.

linic (luring
to British

>tlicr hciiicra
IMirsuiincc (if
wliii (liu'irif;
• 111' riillicror
liiws of siioli
iiii'il to lie a
liiis Ih'coiiic a

IS 'ilitiiiiifd a

, t'viMv child

liJls licconic

IT 111' Iiiollici',

I'f a Hi'iti..h

IS olitaiiipil a
igiliiin, every
Y lias lit'i'oini'
)f till' I'liilcd
tisli siilijcct.

>tiil(' may l>v
I Act ]J. S. 0.
•fiiliitioiis.]

uatiuiiality :
lizutiun ill the

-ailniissioii tn

iiisulai' service
I subjects who
Ills, and of the
;ty's eiiiliassii's

re imrjiosc of
'<l as evidence
■iuunee of this
opies of such
I'ies contained
1 in pursuance
provisions of

lul application
to be made by
iration or the
»r granted by

Y ropoal, niter,
iuiiuce of this

1H70.]

.{3 S: 34 VICT. c. 1 1.— TIEO. BY SEC. OF STATE. 700

Anv regulation nimlo by thn said Secrotftry of Stat*' in pursunncc of
tjiis sM'tion sinill be d(H!nit'(l to bt; witliiti thti powors conferred by fbi.H
Act and sliall be of tiu! samo foree lis if it bad been enacted in tbis Act.
Imt sliftli not, so fai- as respectH the imposition of fees, ))e in force in any
ilritisli possession, and shall not, so far as rcsp;'cts any other matter, Im
ill force in any British possession in which any Act or ordinance to the
coiititiry of or inconsistent with any hiicIi (lircction may for the timu
lieiiij' be ill force.

12.

nndiT
(1')

(-•']

(;{.)

(».)

(•>•)

The followiii}; rej^iilations shall be made with respect to evidence Regulations
this Act : — '"* •" evideni'c,

Anv (Icclai-ation authorised to b(> made under this y\ct may be
proved in any le;^al pro<!eedin<^ by flic i»r(Mliictioii of the
oi'injinal declaration, or of any copy thereof certified to be a
true copy by one of Her MaVsty's Principal Secretaries of
Slate, or by any jM'rson autliori7.e<l by regulations of one of
Her Majesty's L'rincipal Secretaries of Stat(^ to givi^ certilled
copies of such declaration, and the production of such declara-
tion or copy shall be evidenci! of the person (herein named as
declarant having made the same at the dat(; in the said declara-
tion mentioned.

A eertilicatc of iiatnialization may be proved in any legal pro-
ceeding by the production of the original eertilicatc, or of any
copy thereof certilled to be a true copy by one of Her Majesty's
I'l'incipal Sccrelnries of State, or by any person authorized by
regulations of one of Her Majesty's Principal Secretaries of
.State to give certified copies of such eertilicatc.

A eertilicatc of re-admission to British nationality may be proved
in any legal proceeding by the production of the original eer-
tilicatc, or of any <'opy thereof <'ertilied to be a true copy by
one of Her Majesty's Principal Secretaries of State, or by any
person autliori/.(>d by i-egulations of one of Her Majesty's
l'i'iiici|ial Secretaries of State to gi\e certilled copies of such
eertilicatc.

Knli'ies in any register aiilhorized to be nwuh' in iiursuance of
this Act shall be proved by such copies and c»'rtified in such
manner as may be directed by one of Her Majesty's Principal
Secretaries of State, and the c(H»ics of such culrics shall be
evidence of any matters by this Act or by any regulation of
the .said Secretary of StJtte authorized to Imj inserted in thn
register.

The Documentary Evi<lenc»' Act, ISGH, shall ajiply to any regu-
lation made by a Secretary of State, in pursuance of or for
the purpo.se of carrving into effect any of the provisions of
this Act.

i}fi.icpl/fineoHs.

13. Nothing in this Act contained shall affect the grant of letters of Saving of
(leiiizalion by Her Majestv. lettem of

denization.

14. Xothing in this Act contained shall (pialify an alien to be the Saving as to
owner of a British ship. Jlritish ships.

15. Where any British subject 1ms in pnrsiuince of this Act become Saving of
nil alien, he shall not thereby lie discharged from any liability iu resjx^ct allegiance
of any nuts done liefore the «hile of his so l)ecoming an alien. P""'"^ 'V *"""

S 2340, 3 0 patriution.

;i '

iliit

r I

■ 1}

i<fifl»wlw«ni5i;j'j(»:'H<ii;wwic,'''r-if;»:t,i

mwiwtfjaiByHiBBUgMjyiiiiiiB

i !-

Power of
colonics to
legislate with
res))cel lo
iiaturaliziition.

,j :

770

33 & 34 VICT. c. 14.— DISABILITY.

[\m.

16. All InwR, Ptatutes, and ordinnncps which mny bo duly made liy tho
legislature of any BritiHh possession' for iiniMirtinp; to any person tlu'
privilt'fTos, or any of the ])rivilpf;es, of naturalization, to lti> cniovcii liy
snrli iH'rson within tiic limits of such possession, shall within siicfi limit.
hnve the authority of law, but shall be subject to be fontinnid or dis.
allowed by Her Majesty in the same manner, and subject to tlip sflm,,
ndes in and subject to which Her Majesty has |)ower to eoiifinn or ili>.
allow any other laws, statutes, or ordinances in that possession.

' No question of nntm-alization
arises in connection with the emi-
gration of British subjects to Can-
ada. Settling in the dominion
makes no more change in this re-
spect than a removal fioni York,
Gla.sgow, Swansea, or Dublin, to
London, and a new arrival has all
the privileges (if a C'anndiiin-born
fellow-subject. This is very im-
jrortant when compared with the
position of a ])crson who contem-
plates emigration from the United
Kingdom to the Ignited Stat«'s. For
example; — It is riMpiired that every-
one from the British Islands who
desires to become an American citi-
zen shall take two oaths, one of in-
tention and one of fact, the lattei-
after five years' residenc*'. The
ctTect of these oaths is pointedly
and specifically to renounce alle-
giance to the Queen, to give np
one's British birthright, and, in the

event of war, to beeomc nn enoniv
to the land of one's liirth. In soini'
of the States— the great Stnte (if
New York, for instance— n Uritisli
subject cannot hold rwil cMiiir
without taking such oaths, ami can-
not in any of the States cxereise
any of the political rights of Auicri-
can citizenship witiiont so dnin;;.
On tho other hand, for I'oreigncis
the Canadian naturalization laws
are marked by a spirit of iilieraliiv,
and such jK-rsous can transn.ct aiiv
business and hold real estate with-
out being naturalized. Jly residin;;
three years and taking the ontji df
allegiance they beccnne naturnliziil
British .subjects. The oath is oin'
of simple allegiance, and does ndt
require any offensive n'iunieiatifin«.
Natuiidization confers |»olitieal ami
all other rights. — Official Html
hook, |). 7.

Definition of 17. In this Act, if not inconsistent with the context or subject-mattpi

terms. thereof, —

" i)isability " .shall nu'an the status of ))eing an infant, lunntic, idiot,
or married woman.

" British pos.scssion " shall mean any colony, plantation, island,
territory, or setthMuent within Her Majesty's dominions, and
not within the United Kingdom, and all territories and plates
tnider one legislature aie deemed to be one British possession
for the purposes of this Act.

•' The Governor of any British possession " .shall include any jjorson
exercising the chief authority in such [wssession.

" OHicer in the di[tlomatic service of Her Majesty " shall mean any
and)assador, minister, charge d'affaires, or .seci-etary of legjitioii,
or any person ai)pointed by such ambas.sador, nunister, eliarnu
d'affaires, or secretary of legation to execute any duties im-
posed by this Act on an officer in the diplonuitic .scrrice of
Her Majesty.

" Officer in the consular service of Her Majesty " shall mean ami
include consul-genend, consul, vice-consul, and consular agent,
and any jx-rson for the time being discharging the duties ol
constd-genend, consul, vice-consul, and consular agent,

or subjcct-ninltw'
ant, liimitic, idiot,

1870.]

33 & 34 VICT. 0. 14.— NATURALIZATION.

771

Repeal of Acta mentioned in Schedule.

18. The sevprnl Acts set forth in the first and seoom' parts of tlio JUpcnl nf .\v\».
scIiiMliilt' niiiu'Xt'd hereto shiill he wholly repealed, and the Acts set forth
ill tilt' tliinl ]>iirt of the .naid seliednle shall he rei)ealed to the extent
tiicrcin mentioned; provided that the repeal enacted in this Act .shall not
affwl—
(1.) Any ri<;ht aeqnired or thin}^ done heforu the pn,'<sing of this Act.
(2.) Any lial>ility neeniing liefore the passin"; of this Aei.
(.'(.) Any iH'Malty, forfeiture, or other puni.shnient inenrred or to he
incnrred in resi^ct of any offence conunitted hf^fore the piissinji;
of this Act.
(1.) The institution of any investigation or legal proceeding or any
other remedy for ascertaining or enforcing any such liahility,
penalty, forfeitiu'e, or puni.shinent as aforesaid.

SCHEDULE.

XdTE. — Ih'ferenee is made to the rei)eal of the "whole Act" where
jwrtions have lieen reiHjaled hefore, in order to preclude henceforth
the necessity of looking hack to previous Acts.

This Schedule, so far as resiiects Acts prior to the reign of George the
Second, other than Acts of the Irish Parliament, refers to the
edition prepared under the direction of the Record Commission,
intitided "The Statutes of tlu! Realm; printed hy coniuumd of
His Miijesty King George the Third, in pnrsiuuice of an A(hlrcss
of tile House of Commons of Great Britain. Prom original records
tuid iiiithentic manuscripts."

PART r.

Acts wholly rki'EAi.kd, other than Acts of tiik Ikisii
Parliament.

Date.
7.1ns. I.e. 2.

11 Will. .1 e. G.;
11 k r2Wm. 3.

(HufF.)

13 Geo. 2.

e. /.

iO Geo. 2. c. 44.

Title.

An Act that all such as are to he natumli/.ed or
rc.stoi"cd in blood shall first receive the sacra-
ment of the Lord's Supi)er, and the oath of
allegiance, and the oath of su[)remacy.

An Act to enable His Majesty's natural born sub-
jects to inherit the estate of their ancestors, either
lineal or collateral, notwithstanding their father
or mother were aliens.

- An Act for naturalizing such foreign Protestants

and others therein mentioned, as are settled or
shall settle in any of His Majesty's colonies in
America.

- An Act to cxttMid the provisions of an Act made

in the thirteenth year of His present Majesty's
reign, intituled " An Act for naturalizing foreign
Protestants and others therein mentioned, as
are settled or shall settU" in any of His Majesty's
colonies in America, to other foi-eign Protestants
who conscientiously scruple the taking of an
oath."

3c 2

i' 1

\ M

\\t

I oil.']

^!;

772

33 & 31 VrOT. 0. U. -NATURALIZATION.

[im.

13 G«'o. 3. f. 25.

14 Geo. 3. r
10 Goo. 3. <•

HI.

r.2.

7 & S Virt. c.
U)& 11 Vict.

- An Aft to ox|>liiin two Acts of Piiilinmpnt, dm.

of the tliirtcciitli year of tlic ninn of His i,,!,.
Majesty, " for imturali/.in;; siicli foivii^n I'n,.
tcstaiits and otlicrs as arc settled or slnill sctili.
ill any of Ills Majesty's colonics in Amvriai"
and the other of the .second year of the icifr'n
of His |»reseiit Majesty, "for natiinilizin;; m\\
foreign Protestants as have scimmI or slmll
serve ns oflicers or soldiers in J lis Jhijcslv's
lloyal American re<.'iiiient, or ns en^jiiu'crs in
America."

- An Act to prevent certain iiicoiivciiicii(T« iji.ii

may happen by hills of naturalization.

- An Act to declare His Majesty's imturiil-lidrii

.-•iiltjccts inheritahle to the estates of tiicir nn.
ccHtons, whether lineal or collateral, in tliiit |imi
of Great Britain called <Sra//r^«f/, notwitlistaiiil-
ill}? their father or mother were aliens.

- An Act to niter and amend an Act passed in tlip

.seventh year of the \v\^\\ of His Slnjestv Kiii"
James the First, intituled "An Act tlmt iiii mhIJ
ns are to he natiirnlized or restored in lil(iiHl
.shall first receive the sacrament of tiic \,mU
Snpper and the oath of allegiance and the (mih
of supremacy."

- An Act to amend tlie laws relating to aliens.
83. An Act for the nntiindization of aliens.

PART II.

ACT.S Ol" THE Imsll PaHUAMENT WMOl.t.V KKI'KAI.KIi.

0 Geo. 1. c. (57.

(i(!
c.

Date.

TitK'

It h 15 ('has.
e. 13.

2 Anne c. 14.

An Act for encouraging Protestant stinnf;ors mni
other to inhabit and plant in the kingdom ol
Ireland.
An Act for naturalizing of all Protestant strnngor<
in this kingdom.

10 8i 20 Geo. 3. e. 29. An Act for naturalizing such foreign niprchnnt.*,
traders, artificers, artizans, manufnctuicrs, work-
men, seamen, farmers, and others ns slmll sotlli'
in this kingdom.

23 & 24 Geo. 3. c. 38. An Act for extending the provisions of nn A'
pa.ssed in this kingdom in the ninetec ami
twentieth years of His Majesty's ''/i itiilwl
"An Act for naturalizing 41' ""'•

eliants, traders, artificers, , nianiifac-

turers, workmen, .seamen, 1. is, and otliirs
ns shall settle in this kingdom.
An Act to explain and amend nn Act, i tiiliil
" An Act for naturalizing such foreign im-i 1 hauls
traders, artificers, artizans, nianufacturcrs, work-
men, seamen, farmers, and other." wlio siiiill
.settle in this kingdom."

36 Geo. 3. c. 48.

IIS cni^iiiocrs in

KI'EAf.Kn.

the kinmloni of

1S70.] 33 & 34 VICT, i: 102.— OATlf llEOULATIONS.

773

PAirr III.

Acts l•.^uTl^I,l,v itRi>KAi.i':i>.

I (lio. I.o. 1). All Aft lor icviviii}^, (•oiitimiiii'j, mill
(Alt ut' Iri>li aiiiciuliii}; scvcial ^latiitcs iiiailf in
I'uiliiiiiH'iit.) tliis kiii}:;(loiii hi-rt'tolon- Iciniio-

rary.

tiUi'O 1 ^' ^0. - All Act t'orfoiisoliilatiii;; aii(laiii*>ii<l-
iii<5 tln! laws relivtivi! to Jurors ami
Jiiru's.

,1 i^t I Will. 1 All Act ronsolidiiliiif; and anifiid-
c.!)l.

Kxiunt of rcpual,

.So far as it
makes pct'-
I i-tiial tlu'
Aft of 2
Anno f. 11.

TIlc whole of
sec 17.

Tbt- wliolo of
see. 37.

iiig the laws relating to Jurors ami

Juries in Ire/and.
[See {tost, 'AH h IM Vict. c. 3!)., Convention with CS By despatfii
(ill l-' Viet., Doiii Acts, part 2, p. xii.) of Lord Kiiiilierloy, IHtli May
1HH2, iiliciis iialiirall/«>d in British pos.sessions arc :o lie un tliu same
I'uotiiigasaiicus naturalized in Great Britain.]

33 & 31 VICT. (1870) c. 102.

I'muiiblc repealed by S.L.lt. Act, 1893 (Xo. 2), u() *fc 57
Vict, c. 51.

All Act to amend the Law relatiiii^ to the taking of
Oaths of Allegiance on Naturalization.

[10th Aiuj. 1870.]

WHEREAS it is expedient to anienil the law reUiting to tlie taking 3^ iV ol Viit.
ol' oatlis of allegiance under the Naturalization Aet, 1870: '"• '■*•

lie it ciiaeted by the Queen's most Excellent Majesty, by and witb the
a(l\i(ciiiiil consent of the Lords Siiiritual and Temporal, and Common.s,
ill iliis iiieseiit Parliaimnit assembled, and by the authority of the same,
ih follows:

1. The power of making regulations vestetl iu one of Her Majesty's J^'nalinixii^ m
I'liniipiil Secretaries of State by the Naturalization Aet, 1H70, .shall "'"•"''•*"»■
cxtciiil to i)ie.scribing as lollows :

(1.) The persons by whom the oaths of ullegiauec may Ik; admin-
istered under that Aet :

(-.) Whether or not such oaths are to be sub.scrilM'd as well as
taken, and the form in which sueh taking and snbscriiition are
to lie attestetl :

(3.) The registration of such oaths :

(1 ) The persons by whom certified copies of such oaths may bo
given:

(5.) The transiiiis.siou to the United Kingdom for the lairpose of
registration or safe keeping or of being pro<lueed as cviilerce
of any oaths taken in pursuance of the said Aet, out of the
United Kingdom, or of any eo[)ies of such oaths, also of
'■ 'ics of entries of such witlis contained in any register kept
mil of the United Kingdom in pursuance of this Act;

(0.) Tile proof in any legal proceeding of such oaths :

\\ i I

» !

if I

•!

II-

■ !'.>:ijir^fiOrf'>1>'-^'~t'^ -I

774

33 & 34 VICT. c. 52.— EXTRADITION.

[1S7U.

(7.) With the t-onsont of tlio TrtMsiiry, the iiupo.sitiou and (i|iiili(ii.

tioii of foes in respi'Ct of tlic adiuiiisirntion or rc'lstriilioii

of any sncli oath :
The two hi.st i)aragrai>ns in the t'lcvoath soi-tion of tlic Xatuializii-
tion Act, 1870, shall apiily to legnlations iiiadc inidcr this Art.

2. Any iK'ison wilfnlly and corruptly inakinfj; or suhsc ril)in>' anv
dcL-lisration under the Natiu'alization Act, 1870, knowins^ tin; same to lil.
untrue in any material partieular, shall hi- guilty of auii.'<(leim'aiK)r, amllii.
liable to imprisonment with or without hard labour fo;- anv term noi
exceeding twelve months.

3. This Act shall be termed the Naturalization Oatli Act, 1n7o
and bliorl titlo ,„ni gimH he construed as one with the Naturalization Act, 1870, nMd
ot Act. jjjjj,^. 1^ ^,^^^^,^^ together with that Act as the Naturalization Actv, 1H70.

I'cMiilty on
making i'n\>e
docl.iration.

Construction

Short title.

WlKit' iir-

ranncnic t for
humiu'iei of
criminals
made, Order in
Conncii to
ai)i)ly Aft.

33 & 31 VICT. (1870) c. 52.

Amended by 36 & 37 Vict. c. GO. [ichichst'e]. Tiist
Schedule extended to Slave Trade by 36 & '61 Vitt.
c. 88., sec. 27. Sec. 27, the last par., repealed h\ S.L.E.
Act, 1883, 16 & 17 Vict. c. 39. Preamble and to
"same as follows"; Sec. 26, so far as it deiiiies Soctc-
tary of State ; Third Scbedide, so far as it relates to
6 & 7 Vict, c 75. and 25 & 26 Vict. c. 70., vepv.H
by S.L.ll. Act (No. 2), 189S, c. 61. [See Extmdition
Aet of Canada, 11. S. C, 1886, c. 1 12.]

An Act for amending the Law relatins^ to the Extm-
dition of Criminals. [Wi :Liig. 1870.]

liriiEREAS it is expedient to amend the law rclatiii;.' to tin

V V surrender to foreign states of [tersons accused or coiivielcd of

the commission of certain crimes within the jinisdicliou ol such ftalcs,

niul to the trial of criminals surrendered by foreign states to llii>

country :

Be it eni'cted by the Q". mi's most Excellent Majesty, by and with
the advice and conseni of tlu; Lords Spiritual and Temporal, ami
Conunons, in this [iresent Parliament as.sembled, ami by the aiitliorilv
of the same, as follows:

I'liliminary,

1. This Act may Ite cited as "The Extradition Act, 1870"

2. Where an arrangement has been with ny foreign state wiili
respc'". to the surrentler to such stale of any fugitive ( riniinals Ih r
Majesty nuiy, by Order in Council, dire<a that this Act shall apjilv in
the case of such foreign state. \_Sec )-eo. 3, K.S.C., s. M'J.]

Her Majesty may, by the same or any sul)sequent oi(lcr, liaiit ilu
oi^ration of the order, and restrict the same to fugitive eriininiil- wlm
arc in or stjs[)e(:ted of lieing in the part of Her Majesty's douiinicih
specified in the order, and render the operation thereof subject tosmli
conditions, exceptioi;s, and (lualifieatiouH as may be (Uvmed cx|K'(li^ii.

TTT

n'ltitin<; lo ilir
I or coiivicUil ul'
111 oi such !<lal('s,
in stiitcs to tlii-

1S70.] 33 & 34 VICT. v. 52.— SIJK. OP FUGITIVE.

775

Every siiijhoidt'r .shall nritc ov embody the tcrm.s of th('arrtm}(»'uieiit,
1111(1 sliiiU not rt'iiiain in force for any longer period than the ariange-

Ull'Ilt.

Kvpry such order .shall he laid hefore liotli Ilou.ses of Parliament
within si.x weeks after it i.s ma(h', or, if I'arliament lie not then sitting,
within six weeks after the then ne.vt meeting of Parliament, and shall
iilso 1k' [luhlished in the Loii(fou Gtizettv.

3. The following restrictions shall he oliseived with respect to the JUstiiitionK on

siuiciulcr of fugitive criminals
(i.; A fugitive criminal shall not he surrendered if the offence in
res[)ect of which his surreiuh'r is demanded is one of a political
character, or if he prove to the satisfaction of thi- jiolic*'
magistrate or the court hefore whom he is liionght on haheiw
corpiLs, or to the Secretary of State, that the re(piisitioii for
his surreiuh'r has in fact liecn made with a x'ww to try or
punish him for an offence of a political chnractei-.
(2.) A fugitive eriuiiual .shall not Im? surrendered to a foi-eign stale

sUl'l'dlllrl' (if

i.'t'iiiiiiial:<.

less provision is made b. the law of that state,

arrranj'ement, that the fugitive cri

or liy
d shall not, until he

has been restored or ha<l an ojiportunily of returning to Her
IVhijesty's dominions, be (h-tained or tried in that foreign state
lor any offence committed jii'lfi- to his surrender ollu'r thiiii
the extradition crime proved by the facts on which the sur-
render is grounded :

(.').) A fugitive criminal who has been accused of some olTeiiee within
English jiiri.sdiction not being the offence for whi«'h his siir-
reiuh'r is asked, or is iin(h'rgoiiig sentence under any I'onxiction
in the United Kingdom, shall not be surrendered until after
he has Imscii discharged, whether iiy actpiiltal or on expiration
of his s«'iitcnce or ollu-rwise :

(4.) A fugitive criminal .shall not be suireiidered until tlie e\[iiia-
tion (il tifteen <hiys from the date of his being committed tu
prison 10 await his surrcn(U'r:

4, An Order in I'oiincil for a|)plyinr; this Act in the ease of any riiivi>iiiii> uf

lurcij'n state shall not be made unless the arrangement —

arningriiiciit
«.,,,. tVir surrcaiUr.

(I) provides for the determination of it by either party to it alter
the expiration of a notice not exceeding one year ; and,

(-) is in conformity with the [irovisions of this Act, and in particular
with the restrictions on the surrender of fugitive ei ii.iinalsctm-
tained in thi.-i Act.

5. When an order applying this Act in the case of any foreign state I'liMicatic

isIkh'ji published in the London Gazette, this Act (after the date sjieci- 'i"'! >'tti''t

■il ill the order, or if no date is .sjM'cilied, after the date of the publica- '"''''■''•
,i,\ .,l...ii .... I .1 1 :.. , :.. 1' 1.... ... .!.:....» ... •!..

hn
lii

linn) >ihiill, .so long as the ortU'r remains in force, but subject to the
liiiiiliitioiis, restrictions, conditions, exceptions, and (lualilicalioiis. if any,
I'Diiliiined in the order, apply in the ca.se of such foreign state. An
Onit'i' ill I'ouucil .shall be conclusive evidence that the arran<;ement
liiiniii rel'err"d to complies with the recinisitions of this Act, and that
tlii^ A't applies in the ca.se of \\w foreign state mentioned in the order,
iiiiil tlif validity of such order shall not be (pieslioiied in iiny legal pro-
vifilings whatever.

6. Where this Act applies in the ease of any foreign stale, I'very fngi- Liability of
'ivi' ciiniinal of that state who is iu or sns|iected of being in any part of t""^'!"''!!!! fn
Ihi Xliijesty's dominions, or that jMirt which is sitettilied in the ortler ""''''"" '""■

> ■' !

' ! t

■

776 33 & H VICT. c. 52 —EXAM. BEFORE P. M.

LIH70.

Ordoi- i(t'
Sccrt'tiiry of
StHtf for issuu
of wiirniiit in
riiitecl King-
dom if iTiniu
is not of a
political clm-
rucUir.

Issue of war-
I'luit liy jjolifu
niiigisitrato,
ju-stiw, &f.

Hearing of
case anil ovi-
tlcnce of poli-
tical character
of crime.

i4»|)lyiu<; this Aot (us thi; nise jiiay be), shall hv. liabU' to \>r iiiJprclicndLiI
and siirreiKlt'ii'd in iiiaiiniT provided by this Act, whether tlic ciinK. in
lespeet of whieh the surrender is sought was eoinuiitte 1 bdoic or ai'tci
the date of the order, and whether there is or is not any etMiciincnt jmi.>.-
ihetion in any court of Her Majesty's dominions over 'it ( rinic.

7. A requisition for the si^rrender of a fuj^itive eriniinal ol' miv foitji'ii
state, who i.s in or susiK-efed of iM'isig in the United Kinj^doni, shall ?«•
made to a Secretary of State by some per.son recognised l)v the Sccrctai'v
of State as a diplomatic representative of that foreign state. A Sccrctai v
of State may, by order under his hand and seal, signify to a nolici.
magistrate that such recpiisition has l)een made, and reiiuiie iiini to i^sur
his warrujit for the api)rehension of the fugitive criminal.

If the Secretary of St4ite is of opinion that the offence is one of a
political character, he may, if he tliink fit, refuse to .send any muIi onli t.
and may also at any time order a fugitive criminal accu.sed or coiividcd
of such offence to bi' discharged from custody.

8. A warrant for tiie apprehension of u fugitive criminal, wlictlifi
accuseil or convicted of crime, who is in or susjR'cted of being in tin
United Kingdom, may b;- issued —

(1) by a i)olice magistrate o'l the receipt of the said order of the Scnv-
tary of State, and on such evidence as would in his opinion jnslilV
the issue of the warrant if t\u' crime had been couunitted or tlir
criminal convicted in Enylund; and

(2) by a police magi:-;trate or any justice of the peace in any part of iln

United Kingdom, on sm-h information or coniplaint and mhIi

evidence or after such jn'oceedings as would in the opinion of tiii>

person issuing tlu' warnuit justify the issue of a warrant if tlir

crime had i)een committed or the crimimd convicted in that pan

of 'he United Kingdom in which he cxt'rci.ses jurisdiction.

Any jR-rson issuing a warrant uncU'r this section without an order from a

SecreUu-y of State shall forthwith send a reitoi't of the fact of such issiu',

together with the evith-nce and information or comi)hiint, or ccrliliiil

copies th 'reof, to a Secretary of Stat*', who may if he think iit order tin

warrant to be cancelled, and the jR'r.son who has been npprclicndcd (jii

the warrant to be distargetl.

A fugitive criminal, when apia'eheiided (Ui a warrant issued willmiii
the ord-r of a Secretary of State, shall be brought befori' sonic p, imhi
having power to issue a warrant under this section, who shn'l by warrant
onler him to be brought and the prisoner shall accordingly be liroujilit
before a |)olice magistrate.

A fugitive criminal apprehended on a warrant issued without the onlii
of a Secretary of State shall be discharged by the |»()li('e niagistrali.
unless tile [lolice magi.strate, within such reasonable time as, wiili
referenc*' to the circiiinstances of the ea.se. In- may lix, receives Ikmii
a Secretary of State an order signifying that a reipiisition lias lieeii niadi'
for the surrender of such «'riininal.

9. When a fugitive criminal is brought before the p(dice niagistniti',
the police magistrate! shall liear the case in tlie same nuuiiiei', and Iiiim'
the sjiiiio jurisdiction and powers, .is near as may Ik-, as if the prisonn
were brought before him charged wit'i an indictable offence eoniuiittd
in England.

The police nnigistrate shall receive any evidence whieh may l*
tendered to show that the crime of which the prisoner is accused nr
alleged to have Iri-j convicted in au offence of a political charaeter or is
not un extradition crime.

1870.]

33 & 3^ VICT. c. 52— HABEAS CORPUS.

777

10. i" •''*-' ^'"'*^' "'^ " t'ligitivf criuiiual accnsed of an i-xtimlitioii friiiii-,
if the foreign warrant authorizing th.- arrest of such criminal i.s duly
autlu'iiticated, and such evidonco is prodiifi'd as (subject to the laovisions
of this Act) would, according to the law of Etir/land, justify the coni-
iiiittiil fur trial of the prisoner if the crime of which he is accused }<ad
km coniniitted in England, the police nwigistrate shall commit him to
imIsoii, liiit otherwise shall orth' him to be di.>*charged.

In the ease of a fugitive criminal alleged to liuve been convicted of an
txtiiidition crime, if such evidence is produced as (subject to the pio-
visioiis of tliis Act) would, acconling to the law of Englauil, prove that
tlie prisoner was convicted of such crime, the police magistrate shall
toiuniit him to prison, but otherwi.se shall order him to Ik? discharged.
[.SVcsec. U.K. S. Cell. 142.]

If he coinuiitt i: h criminal to prison, he shall commit him to the
Middlesex Hor -f Detention, or to some other pri.^on in MuM/vsej;
then' to await tl- arrant of a Secn-tary of State for his surrender, and
simll forthwith send to a Secretary of State a certilicate of the committal,
aiul sueii report upon the case as he may think lit.

11. If tiie police magistratcf eonnnits a fugitive criminal to [)rison, he
slmll iuform such cu-iminal that he will not be surrendered until after the
expiration of fifteen days, and that he has a right to apply for a writ of
Mms corpus. [See sec. 12 R. S. C. ch. 112.]

Upon the expiration of tiu! said liftcen days, or, if a writ of habeas
torpus is i.ssued, after the decision of the court upon the return to the
writ, as tht; ca.se may be, or after such further period as may lie allowed
in either case by a Secretary of State, it shall Ik- lawful for a Secretary
of State, by warrant under his hand and .ser", to order the fugitive crimi-
nal (if not delivered on the <lecision of the court) to be snrn'ndered to
.■^nch [K'r.sou as nuiy in his opinion be duly authorized to receive the
tiijijitive criminal hy the foreign state from which the requisition for tiie
s^unender proceetled, and such fugitive criminid shall be surrendered
accordingly.

It shall be lawful for any per.sou to whom such wariant is directed and
for the iHTson so aiithorized as aforesaid to receive, hold in custody, and
convey within the jiu'is.liction of such foreign state the criminal men-
tioned in the warmnt ; and if the criminal escapes otit <.f any custody to
which he nniy be delivered on or in pursuance of such warrant, it shall
1h' lawful to retake him in the siimc nninner as any [K-rson accu.sed of
any crime against the hiws of that part of Her Majesty's dominio. .; to
which he escai>es may l»e retaken ujion an e.scajjc.

12. li tile fugitive criminal who li. s b«'en connnitted to prison is iu)t
xuivndered and conveyed out of I • United Kingdom within two
niontiis after such connnittal, or, if a writ of habi-as corpus is issut.-d,
after tiie (h'cision of tin." court upon the return to the writ, it shall l)e
iinvfnl for any judge of one of Her Majesty's su|H'rior courts at West-
minster, upon application matle to him by or on iM-half of the criminal,
iind upon proof that rea.sonable notice of the intention to make such
u|)piiciition has iK'en given to a Secretary of State, to order the criminal
to 1k' discharged out of custody, iinless sullicient cause is shown to the
eontrary.

13. i'lie warrant of the police nnigistrale issued in pursuance of this
Act nniy be executed in any part of the United Kingdom in the same
iiiunner as if the same had lieen originally issued or sub.sccpiently
iiulorsed by a justice of the jK'ace having jurisdiction in the place where
the siune is executed.

Cuuimitlul ur
discharge of
prisoner.

Surrender of
fugitive to
foreif^n state
by warrant of
Seeretary of
State.

J)ise!mrgi' of
persons appre-
lieiulcd if not
conveyed out
of United
Kingdom
within two
months.

Kxecution of
warrant of
police magis-
trate.

; I

* !

(,i

M I

]

778 33 & 34 VICT. c. 52.— CRIMES ON THE SEA.

iJcpi)>itii)ii.s to
lie uviik'ncu.

0 & 7 Viut.
c. "6.

Aiitlitntiriitiiin
of iltiiositioiis
iiiul waiTiUits.

2'J & 30 Viot.
c. 121.

■Illl'iMlirtiiiii ;!.■<
ti) I'l'illir.- I'oin-
niitti'tl at Mil.

Proctcdiug>
tui tu fufiritivc
criiiiiimlH in
Kritibh pu8-

8USHiull8.

[1870.

14. l)i'iX)sitions or .statements on outli, tiiken in a foroi<;ii .state niul
copies of such original depo.sitions or statements, and loreijin (•(■itili<)it,.
of or judicial documents .stating the fact of conviction, innv if duly
authenticated, ho received in evidence in proc»'e<lings uikIit tiiis Act. '

15. Foreign warrants and depositions or sfatenicnts on oatli aiul
cojMes thereof, and certiticafes of or judicial documents stating tiic tail
of a conviction, shall he deemed duly authenticated for tlic piiriioscs of
this Act if authenticated in nniimer provided for the time heing hy law
or autlienticated as follows :

(1.) If tlie warrant purports to he signed hy a judge, nmgistratc or

ollicer of the foreign state where the same was i.ssiu'il ;

(2.) If the depositions or .statements or the copies thereof i)iii|ioit to

be certified under the hand of a judge, magistrate, or oHlcci- df

the foreign state when? the .'<ame were taken to lie tiic ori'Miml

depositions or statement.s, or to he true copies tiicnot', u.s the

ca.sc may require ; and

(3.) If the certificate of or judicial document stating tin' t'a<t of

conviction pm-ports to 1m' <'ertified hy a judge, magistrate, or

olBcei' of the foreign static where thei-onviction took \)\tui'; and

if in I'vcry case the warrant.s, depositions, statements, copies, eerlilicates,

and judicial documents (as the case may !«■) are authenticated iiy tin

oatii of some witness or hy heing sealed witli the official seal of tlir

minister of justice, or .some other minister of state: And all eoiirls nf

justice, justices, and magistrates shall take judicial notice of Mich ollieiiil

•seal, and .xliall admit tlie documents so authenticated hy it to he reeeiveil

in evi<lenco without further proof.

Crimes coiiiiiiittei/ at nca.

16. Where the crime in respect of which the surrender of a fiigiiiw
criminal is sought was committed on hoard any ve.ss«'l on the iii};]i siis
which comes into any jjort of the United Kingdou), the I'oilowinj; pru-
visions shall hav*- effect :

1. This Act .shall he construed as if any .stipendiary niagistrale in
England oi' Ireland, i\\v\ any .-iheriff or .sheriff suli.-ititule in Sivt-
land, were suhstituted for the police magistrate throiigluml tliis
Act, except tlie part relating to the execution of tlie warnint uf
the iK)lice magistrate :

-. 'I'hc criminal may lie conunitted to any pri.son to whieii the ihimhi
eonnnitting him has power to commit persons accused of tlie like
crime :

.'{. If the fugitive criminal is a{iprehen(UMl on a warrant issued witlionl
till order of a Secretary of State, lie shall he liroiighl liefore tin
stipendiary magistrate, sheriff, or sheriff substitute wlio issnnl
the warrant, or who has jurisdictiiai in the port where tiie M'.sm'I
lies, or in the place nearest to that port.

Fuyitice criminals in British 1^ assess ions.

17. This Act, when applied hy Order in Council,
shall, unless it is otherwise provided l)y snch Order,
extend to every Britisli possession in the sjinic manner
as if throughout this Act the British possession were
suhstituted for the United Kingdom or Enyland, as the

•^W't

1870.] 33 & 31 VICT. i-. 52.— FUGITIVES IN COLONIES. 779

case may I'LHiuire, but >vitli the following inotliliaitioiis ;

namely,
(1.) The requisition for the surrender of a fui^itive
criiuiiml who is in or suspected of l)ein<^ in a
British posse'^sion may be made to the Gover-
nor of that J3ritish possession by any person
recognised by that Governor as a consul-
general, consul, or vice-consul, or (if the fugi-
tive criminal has escaped from a colony or
dependency of the foreign state on behalf of
Avhich the requisition is made) as the Gover-
nor of such colony or deiwndency :
(2.) No warrant of a Secretarv of State shall be re-
quired, and all powers vested in or acts autho-
rized or required to be done under this .Vet
by the j)olice magistrate and the Secretary of
State, or either of them, in relation to the
surrender of a fugitive criminal, may be done
by the Governor of the British possession
alone :
[\i.) Any ])rison in the British possession nmy be
substituted for a prison in Miihllescd' :

(1.) A judge of any court exercising in the British
possession the like powers as the Court of
Queen's Bench exercises in HiiyUnul may
exercise the power of discharging a criminal
when not conveyed within two months out
of such British possession.

18. If by any law or ordinance, made before or suvin^'of iii«s
alter the passing of this Act by the Legislature of any po..bi>Mons.
British possession, provision is made for cju'rying into
I'll'ect within such possession the surrender of fugitive
crimiimls who are in or suspected of being in such
British posses.sion. Her ^lajesty may, by the Order in
Council applying this Act in the ciise of any foreign
state, or by any subsequent order, either

suspend the operation Avithiu any such British
possession of this Act, or of any part thereof, so

I i

i •

i !

! i

'!'■

•

780 33 & 31 VICT. c. 52.— TRIAL OF OFFENDERS, [lyjy

far as it relates to such foreij^n state, and so hw
as such law or oi'ilinauce continues in Wnxr tliciv
and no longer;
or direct that such law or ordinance, or ai^y part
thereof, shall have effect in such ]iritisli posses.
sion, Avith or without modifications and altorutioiis,
as if it Avere part of this Act.

General Prorisioiis,

19. Wlicrc, in ptusuance of aiiyaiTiiiif^cnu'iit with a t'orcij^n stiitv,iiiiv
person aceiisctl or eouvicted of any crime which, if coniinitted in EmjUiMl,
would he one of tlie crimes descrihed in the first .schedule tu tiiis Art i>
surrciidi'icd by that foreign state, such person «h:i;l not, uiilil he In,,;
hi'cn restored or liad an opportunity of retniiiing to sueli I'oi'eif^u sia(i>,
bo triable or tried for any ofiPencc connnitted prior 'o the sum nih r in
any part of Her Majesty's dominions other than such of the siid ciinus
as may be provetl by the facts ou which the surrender is grounded.

20. riic forms sot forth in the second schedule to this Act, or forms ll^
iii'ar thereto as circumstances admit, nuiy be used in all matters in wliich
such forms refer, and in the case of a British possession may he so used
nuitatis mutandis, and when used .shall be deemed to be valid anil sulli-
cicnt in hiw.

21. Her I^ajesty nuiy, by Order in C'otnicil, revoke or alter, snlijwt to
the restrictions of this Act, any Order in Council made in puisuiuicc of
this Act, and all the provisions of this Act with respect to the ori^;iii;il
order shall (so far as applicable) apply, mutatis mutandis, to any siuii
new order.

22. This Act (e.\cept .so fur as relates to the execution of wmiiimiIs in
the Channel Islaiuh) shall extend tj the C/iannel Islands »\n\ Islvnf
Man in the .same manner as if they were i)art of tin; I'nited Kinj;(l(jiii;
and the royal courts of tin; Channel Islands arc hereby resiHttivily
authorised and required to register this Act.

23. Nothing in this Act shall affect the hiwful powers of ller .Majisiv
or of the (Jovernor-ticneral of India in Council to nnike treaties fui' lliu
extradition of criminals with Indian native .states, or with other Asiatic
states conterminous with British India, or to carry into exeeiitioii tiu'
provisions of any such treaties made either before or after the passiiijjol
this Act.

I'owcr of 24. The testimony of any witness may be obtained in relation toiiiiy

t'oii'i};!! state to criminal naitter ponding in any court or tribunal in a foreign statf in
ol)tiiiii ividciiie li|^^. jnanuer as it may lu; obtiiined in relation to any civil nuitter uiuiir
the Act of the ses.sion of the nineteenth and twentieth years of the ni;;i:
of Her present Majesty, chapter one hundred and thirteen, intitiiliil
" An Act to provide for Taking Evidence in Hei' Majesty's iJoniiiiidiK
in relation to civil and conimorciul matters ponding hi'fore i'on'i<,'ii
tribunals; " and al'. the provisions of that Act shall be construed as if the
term civil matter inchided a criiuinul matter, and the term cause iat'lnilcil
a proceeding against a criminal : Provided that nothing in this .swtiuu
shall upply in the <-us(> of any criminal matter of ii politicid cbaructer.

Ci'iiiLiiiiil sur-
roiKlcrud by
t'ori'ij!;n state
not ti'iiiblu for
jiiX'vious
criniu.

As to use of
forms in se-
eond seliedule

Kevoiatioli, i^e
of Order in
I'ouneil.

Ap|)lieiitioii
of Act ill
CliaiiiU'l
I>lniids and
Isle of Ma: .

.•Saviii}; fur In-
diau treaties.

ill I'liited
Kiiigduin.

1S70.]

33 & 34 VICT. c. 52.— DEFINITION OF TERMS. 781

25 For tlic purposes of this Act, every colony, <lt'j)einlciu'y, nnd con- Foreign stdto
stitiu'iit ]mrt of n foreign state, and every ve.swl of thiit .state, shall (ex- inclndcs de-
cent wlit'ie expressly nn-ntioned as distinct in this Act) 1h' dt-eined to 1k' r''''*''ii'it«.
witiiiii the jurisdiction of and to he piirt of such foreij^n state.

Definition of
trrtiis.

" Itritish pos-
sessions :'■

26. I" '1''** '^'"N ""h'ss the context otherwise reijuires [For Inter-
pretatidii of terms in Cauadinn Act, srr sec. 2 of R. S. ('. s. 112], —

Tiie term " British possession " means any colony, jdantation, ishind,
tenitorv, or settlement within Her iMajesty's dominions, and not
witliiii tile I'liited Kingdom, the C/iannrl hlaiuh, and Isle of Man ;
iUKJ all colonies, plantations, islands, territories, and settlements
uniicr one le;jislatiirc, as herc'n-ufter deliiied, are deemed to l)c one
British possession :

Tlio term " le^ishiture " means any persftn or iM'isons who can
exercise legislative authority in a British jjO-ssession, anil where
there are local legislatures as well as a central legislature, means tlie
central legislature only :

Tlie term "Governor" means any por.son or ix'r.sons administering the
gnvtirnment of a British possession, and includes the Governor «if
imy part of India :

The term "extradition crime" means a crime which, if committed in
Enr/land or within English jurisdiction, woiihl he one of the crimes
(lescrihed in the first schedule to this Act :

The terms " conviction" and " convicted " do not include or refer to
ii conviction which under foreign law is a conviction for coutinnac\,
hnt the term "accused person" includes a jn't-son so convicted for
contumacy:

Tlu' term "fugitive criminal" means any person accused or convicted
of an extradition crinu' committed within the juri.s<iiction of any
foreign state who is in or is .suspected of hcing in some part of Her
Majesty's dominions; and the term "fugitivi^ ciimiiud of a foreign
state" tnc^ans a ftigitive criminal accused or convicted of an extra-
dition crime committed within the jurisdiction of that state :

Tlie term " Secretary of State" means one of Iler Majesty's Priiu-ipal
Secretaries of State :

The term "police magistrate" means a chief magistrate of the metro-
l)oiitan police courts, or one of the other magistrates of the metro-
politan police court in Bow Street :

Tiie term "justice of the peace" includes in Scothmd any sheriff,
slieriff's substitute, or magistrate :

Tiie term "warrant," in the case of any foreign .state, includes any
judicial document authorising the arrest of a per.son accused or
convicted of crime.

Repeal of Acts.

27. The Acts specified in the third schedule to this Act are hereby Repeal of .Vets
ro|H iiled as to the whole of Her Majesty's dominions : and this Act i" tliifl w'"'-
(witii the exception of anything contained in it which is inconsistent ''"'**•

witli the treaties referred to in the Acts so reiK>aled) shall apply (as
rpgnrds crimes committed either iM'fore or after the passing of this Act),
ill the case of the foreign states with which those treaties an> nutde, in
the same manner as if an Order in Council referring to such treaties had
iM'cn made in pursuance of this Act, and as if such order had directed
tmit every law and ordinance which is in force in any British [losscssion
\vitli respect to such treaties shoidd have effect as part of this Act.

" Legislnture ;"

' (iovernnr

" K.\lriidition
crime ;"

" Coiivielion :"

" Fuftitivo
eriininiil :"

" Knjiitive
eriniiniil of a
t'oreif;!! slate:''

" .S'eretnrv of
State:"

" Pi>li(v nia-
gistnito :"

" .Justice of
tlie peace :"

'• Waniint. "

•»

!lll

1 f

■! i

-•i'if+***'M>*^*i»'.fiir,Titj»?r,r#^:,

782 3.3 & M VICT. 0. 52.— EXTRADITION CRIMES.

[1H70,

I'roviilcrl that if nny proceedings for or in relation to tii.i sinicndi r of
a fugitive eriniinal have been conuneneed un(h'r tht^ saiil Acts pii'vioiish
to ilie repeal thereof, such proceedings may he completed, and llic fniritiy,,
sinrenilered, in the sjinie manner as if this Act had not iias.srtl.

SCHEDULES.

FIRST SCHEDULE.

Ll.ST OK CUIMKS.

The following list of crimes is to ha constriutd according to the law
existing in En(fl(tn(1, or in a British possession (as the ease nmv In), at
the date of the alleged crime, whether by common law or liy stntutr
made l)efore or after the passing of this Act :

[Numbered as in Canadian Act, R. S. C, 18.S0, c. 112., 1st Scli.
The brackets denote the additions in the Canadian Act.]

(1) Murder, and attempt and conispirucy to murder.

(2) Manslaughter.

(3) Counterfeiting and altering money, and uttering coiniforfcit uv

altered money.

(4) F(a'gery, counterfeiting, and altering and uttering what i^

forged or counterfeited or altered.
(.5 & (5) Embezzlement and larceny.
(7) OKJJaining money or goods by false pretences.
(Hj Crimes by bankrupts against bankruptcy [or insolvency (Can.)]

law.
(9) Fraud by u bailee, banker, agi-nt, factor, trustee, or (lii'ccl<ir, oi

mend>er, or pid)lic officer of any company [to wliicli iiiind !•;

{CaH.)'\ made criminal by any Act for the time being in foirc.

(10) RajK'.

(11) Abduction.

(12) Chihl stealing.

(l.'{) [Kidnapping in Canadian Act, sec 30 & 37 Vict. (Inii).) c. GO.]

(11) [False imprisonment in Canadian Act.]

(15) Burglary and housebreaking [or shop breaking.]

(1(5) Arscm.

(17) Robbery with violence [with violence not in Canadian Act].

(18) Threats by hitter or otherwise with intent to extort.
(1!)) [Perjury or Subordination of i)erjury in Canadian Act.]

(20) Piracy by law of nations [or in Canadian Act, I'inuy liy

Municipal law or law of Nations committed on bonnl of nr
against a vessel of a foreign state],

(21) Sinking or destroying a vessel at sea, or altemi)ting or con-

spiring to do so. [This runs in the Canadian Act :—
"Criminal .scuttling or destroying such a vessel at sen,
whether on tho high seas or on the great lakes of North
Amciica, or attempting or conspiring to do so."]

(22) Assaults on l)oaril a ship on the high sea.s with intent to destroy

life or to do grievous bodily harm. [In the Canadian Act,
" Assault on board such vessel at sea, whether on tiic lii;;li
seas or on the great lakes of North America, with intent
to destroy life or do grievous bodily harm."]

fW ■

1870.]

33 & 34 VICT. c. 52.— MUTINY.

783

(23) llevolt or conspimoy to revolt by two or nioro persons on board
ft ship on the \\\^\ seas against the iiulhority of the muster.
['Pile Canadian Act is, " llevolt or conspiraey to revolt by
two or nioro persons on board siieli a vessel at sea, wlietlier
(111 the high sens or on the great lakes of North America
against the authority of the master."]

[See the following Imperial Act, 3« & 37 Vict., 1873, c. 00., for the
following additions nundiered ns follows in the Caiinilian.]

(21) [Pl'c Canadian A<'t proceeds, "Any offence under either of the
following Acts, and not included in any foregoing portion of
this schednle.
(rt) " An Act respecting offences against the person."
(h) " The Larceny Act."
(e) " An Act n^specting forgery."

(d) "An Act respecting offences relating to the coin."

(e) "An Act resp<'cting malicious injuries to i>roi)erty."]

(2')) [Any offence which is, in the case of tlu^ principal offender,
" iiicludetl ill any foregoing iK)rlion of this sehccluie, and for
which the fugitive eriniinal, though not the principal, is liable
to be tried or imnished as if he were the principal,]

SECOND SCHEDULE.

Form of Order of Secretary of State to the Police Magistrate.

To the chief magistrate of the metropolitan police courts or other
magistrate of the metropoliian police court in Bow Street
[or the stii)endiary magistrate at ].

Whereas, in pursuance of an arrangement with ,

rcfcricd to in an Order of Her Majesty's Council dated the
(lay of , a reqni.sition has been made to me, ,

one of Her Majesty's Principal Secretaries of State, by ,

the diplomatic representative of , for the surrender of

, late of , accused [or convicted]

of the commission of the crime of within the jurisdiction

of : Now I hereby, by this my iirdcr under my hand

and seal, signify to you that such requisition has been made, ami retiuirc
you to issue your warrant for the apprehension of such liigitixc. provided
that the coiidhions of The Extradition Act, 1870, rehiting tn the issue
of such warrant, are in your judgment coin|)lied with

Given under the hand and seal of the undersigned, one of Uvv
Majesty's Prineiiial Secretaries of State, this
day of 18 .

Form of Warrant of Api>rehension by Order of Secretary of State.

Melroiuilitan

r'or'l.NMmr''^*' l'^'" "" "'"' ^'"^'^' °^ *'•'' constables of the metropolitan
hnroiiEl Of ^""^11 police force [or of the county or borough of ].

to wit.

NVheukas the Right Honourable one of Her

>hiji stv \ Principal SecretJiries of State, by order under his hand and
■'•■al, hath signitied to me that requisition hath been duly made to him for
the surrender of late of accused [or

1 1 ;

1 ,

ij.

Ij
Iff

1 1 1

1 :

']■

I I

784

33 k 34 VICT. o. 52.— ENO. * CAN. : TOmiS

[i«7n.

<'onvicte(l] of the coininission of the crime of within the

jiirisilictioii of : This is tliercforo to roiiiimmd vim

ill Her Mivjcsty's imiiic fortliwitli to iipprcliciul tlit- siiid
imrsiiiint to The Extrndition Act, 1H70, wlicrc\cr lie iniiy 1)0 fdiind jn
I lie I'liitcil Kiiifidoin or J.\/c of Man, mid liriiij; liiiii In-fore \w' „|. ji,,,,,,.
other [iiKifjistrute sitliii<; in this court {alter as required)], to n!i(i\v<.„ii„,
why 1h' slioiild not 1)0 .surrendered in iiiirsimnce of the said Kxtiwlition
Act, for which this f»linll be your wnrrunt.

Given under my hand nnd seal at [How Street {alter as renuind)

one of the jiolico courts of the metropolis) this

dav of , A.I).

J. IV

imd 3," iiiul tlicv

To all and each of the eonstahles of {\w mclroiiojiiiin
police force [or of the county or l)orou<i;li of i

[XoTK. — T]u' Canadian Act contiiins "Form 1,
ai)pear as [irintvd in italics.]

(Form 1, Canada Act)
Form of IVarrant of Apprehension without Order of Secret^iiv of Stud

Metropolitan

police district,

[or coiiiity nr

lioroiigh of ]

7'o wit.

Whereas it has been shown to the undersiffned [En Canadian Act, »
judye under " The E.vtradition Act "]. one of her Alaje.^fty'.s justices nf
the peace in and for the metropolitan police district [w the saiil ((iiiniv
or borough of ], that late of

is accnsed [or convicted] of the commission of th(( crime of
vifhiti the Jurisdiction of : This is therefore to rommmul

yoH in Iler Majesty's name forthwith to apprehend the said
and to oriny him before me or some other [In Canadian Act, jintqc
under the said Act] magistrate sitting nt this court [or one of iiVr
Majesty's justices of the jieace in and for the county [or iiorou};!!] ul
] to be further dealt with accordiny to lair, for
which this shall be your warrant.

Given under my hand and seal at Bow Street, one of the jiolico
courts of the metropolis, [or in the coinitvoc

borough aforesii'l] this day of

AD.

J. 1'.
Form of Warrant for bringing Prisoner before the Police
Magistrate.

County [or bo
rouph] of
to wit.

To con.stablc of the police force of

and to all other peace ollieeis in tiu'
.said county [or borough] of

Whereas late of accused [or nllogcil

to be convicted of] the commission of the crime of within

the jurisdiction of has been apprehended and brought iiofoif

the undersigned, one of Her Majesty's justices of the peace in iiml for
the said county [or borough] of Ami wheiens l)y The

Extradition Act, 1870, he is requin'd to be brought iM'fore the cinVf
magistnite of the metropolitan [Ktlii'c court, or one of the police imip;is-
trates of the mctrojwlis sitting nt Bow Street, within the inetioiiolilan
police district [or the stipendiary magistiiite for ] : Tiiis

is therefore to command you the said con.stable in Her Majesty's niiuif
forthwith to take and convey the sniil to the inetioiwliljm

police district [or the said ] and there carry liiin liefore

'( h

• : ' r, fa

(MVtiirj- of Stair.

1870,]

33 & ni VICT. c. 52.— FOHM FOTl SFRRENDEn. 7^')

\\\vmi t'hicf mftgistrnto or ono of tlio poliw inaf^istrato.s of tlic motro-
l)olis sitting nt How Street within the Hjutl district [or before a stipendiury
iniii'istmtf sitting in the siiid ] to show ciinso why lie

should not hi" snrrendered in pnrsimncc of Tiie Kxtriulition Act, 1H70,
and otherwise to he denlt with in acconhinec with law, for wliioli tiii.s
>ludl lio yonr warrant.

Given under my hand and seal at

borough] aforesaid, this day of

in tlie ooiintv [or
A.D."
J. V.

Mctropnlitaii

polii'i! district,

[or I'ounty »r

lHirou){h of ]

To irit.

(Form 2 in Canadian Act.)
Fonii of IVarrnnt of Committal.
To one of the constables of the metro-

politan police force [or of the police force of the
county or borough of ], and to the

keeper of the at

Be it remembered, that on this da;/ of

in llie i/ear of our Lord late of is brought

before me [In Canadian Act, a judge under " The Extretdition
Act"] [The Canadian Act goes on, teho has been apprehended under
till' said Act to he dealt with according to law, and forasmuch
lis I hare determined that he should be surrendered in pursuance
of the said Act on the ground of his being accused [or convicted
iiftlie crime of within the jurisdiction of

—instead of the above words in italics the Kngli.sh form continues after
till' words " lyefore me " : — the chief magistrate of the nu'tropolitan police
loiirts [or one of the police magistrates of the metropolis] sitting at the
IKilice court in Bow Street, within the metropolitan police district [or n
^tiiK'ndiary iiingistrate for ,] to show cau.se why he should not

iit'sniTeiidei'ed in pursuance of The Extradition Act, 1870, on the ground
(jf lii.s being accused [or convicted] of the commission of the crime
(if within the jurisdiction of , and foras-

iiiiicii as no snlTicient cau.sc has been .shown to me why he shoidd not Iw
"Uirendered in pursuance of the said Act :

[TlKn tlie following so /«>• as is common to l)Oth forms] This is there-
fore In command i/oH the said constable in Her Majesty's name f'orfh-
uilh to conrcy and deliver the body of the said info

thceiistodi/ of the said keeper of the at ,

(111(1 ynii the said keeper to receive the said into your

nstodij, and him there safely to keep until he is thence delivered pur-
smnit to the provisions of the said Extradition .let, for which this shall
lie i/oiir warrant.

(iiveii under my hand and .teal at Bow Street, one of tlie police
coints of the metropolis, [or nt the said ]

fhi-1 day of A.D.

J. P.
(Form 3 in Canadian Act.)

Form of Warrant of [Order of Minister of Justice] Secretary of
State for Surrender of Fugitive.

To the keeper of [the] [at] and to

JVhercas late of accused [or cmi-

rktcd] of the commission of the crime of within the

jurisdiction of , was delivered into the custody of you

the keeper of [the] [at]

h mrrant dated pursmnt to The Extradition Act, 1870 :

iVow / do hereby, in pursuance of the .said Act, order yon the .said

S 2340. 3 D

!! '

i'M ill;'

I 11; I i
;i li II

M I I I

t I

780 33 & 34 VICT. c. 00— niUTISH COLUMBIA.

[1«"0,

keeper to deliver the body of tlio said into the cuitodu

of the stiiU , and I command you the said

to rcreire the said ^ into your custody, and lit ronvn/ him

within the jurisdiction of the said , and t/nre ptui'r him

in the custody of any person or persons [or o/" ] apfminted

by the said to receive him,Jor which this shall he i/imr

war ran'.

Given under the hand and seal of the undersiyned [in Cnnailian
Act, ^Minister of Justice of Canada], one of Her AInjcslv's Principal
Secrefnrii'M of Stiite, this day of .

Year (iiid Cliapf it.

THIRD SCIIEDULK.

Title.

0 & 7 Vict. c. 75.

0 i^ 7 Viet. c. 70.

S Si 1) Viet. e. 120.

25 k 20 Viet. <•. 70.

29&30 Vi<t. e. 121.

An Aet for givinjjeffcet to a eonvenfinn In'twciMi
Her Miijesty and tlie Kin"; <>F tlic Frciicli for
th(^ apiirelieiiHion of eertiiin oiretHJiTs,

An Aet forgiving elFeet to a treaty iMtwccn llir
Majesty and tlie United States iif A morion for
tlie a|)|irelien.sion of certain (ilfeiiders.

An A(!t for facilitating eveention of tlic tmatios
wifli France and the United .Statos nf
Aniericii for the apprehension of ccrtaiii
offenth'rs.

An Aet for giving effect to a convention biiwcca
Her Majesty and the King of Denmark for
the inntnal .snrrender of criminals.

An Aet for the ainen(hnent of the law rolntin;;
to treaties of extradition.

; i ■ t

33 & 3 V VICT. (1870) c. 66.

"Ropoalod l)y S. L. R. (1891) 57 & 58 Vict. c. 50.

An Act to make further provision for the GoAeriimcnt
of British Cohimhia. [9/// Aug. 1870.]

Proiinibio. TTTHEIIEAS in pursuance of the powers vested in llor JIajcsty

VV by an Aet ijas.-^ed in the .session liohlen in the twenty-first and

21 & 22 Vii't. twenty-second years of Her Majesty's reign, intituled " An Aet to pro-

<!■ 90. vide for the government of British Columbia," Her Majesty did, Iiy an

Order in Council, liearing <late the eleventh day of .Tune oiie lliousind

eight hundred ami si.vty-three, constitute a Legislature, coiisiiitini; of

the Governor and a Legislativt? Council in the .said colony of liritinh

Columbia :

AntI whereas by the British Columbia Act of IHGO Vancouver hlund
was united to British Columbia and made sidtjeet to the said Legislature,
and the nuuiln-r of tht^ Legishitive Council was incix'a.sed .so as to provide
for the representation of Vancomwr Island :

And whereas it is expedient to alter the con.stitufion of the m\
Legislature ;

Be it therefore enacted by the Queen's most Excellent Majesty, liy
am', with the advice and consent of the Lords Spiritual and Tem

It ion of the m\

1870] 33 * 84 VICT. c. S2.— LOAN FOR DEFENCE. 767

iind Commons, in tliis prcHoiit Pftrliiinient aHNcnil)lotl,nn<l l>y tlie Authority
„f ilip Mnnu', an follows :

1, This Act inny Imi citod ns " Tin' Hiitish Colnniliia Oovornniont
Act,' IH-O."

2. For tilt- pur|iost'H of this Act, th«> term " Oovornor " shall nn>an
tlie ofliwr for the time licing lulininisturing the govcriiniont of Hiitish
I'oliiinliia.

3, Her Majesty may, by any Order or Orders in Council, revoke the
snid rocited Order iu Council, and may from time to time make, and
wlicn made revoke or ftlt<'r. Orders in Council for <'onstitutin<if a riej^isla-
tiin^ ("onsisting of tho Governor and a Legislative Council for the said
colony, and may hy any such Order make such provisions ami regiUii-
tions res[)ccting tho constitution, powers, and [troeecdings of the said
legislntiue, or either branch thereof, tho uuinber, tho appointment, and
cipctiiiii of the members of the Legislative Council, their tenure of
ntlico, and generally iu resi)eet to such Legislature, or either branch
thereof, as may seem to her expedient.

4. Her Majesty may from timo to time, by any such Order or Orders
ill Council, empower the Qovernor of tho said colony, with or without
iinv conditions or restrictions, by protdamation, to determine the (pmlili-
cfttion of electors and of elective membors of tho Legislative Council,
and to make provision for tho division of the .said colony into convenient
rlirtimd districts ; for tho registration of j)er.sons qualitied to vote, and
the compilation and revision of lists of all such persons; for the ap[ioint-
iiipiit of returning officers; for the issuing, executing, and returning the
iieecs.sary writs for tho election of memlx'rs to the .saiil Legislative
Coiiiieil ; for taking tlie poll thereat, and determining the validity of all
(iisiiiitcd returns ; and generally for securing the orderly, effective, ami
im|taitial conduct of such eleetions, and to ri'voke anv proclamation
pn-viimsly made. [See 21 & 22 Viet. c. 09.]

.Short lillo,

Intcrpritiitiiifi
of term " (loT-
ornor."

Power to Her
Majesty liy
OnliT ill C'ouii-
I'il Id coiiNtituto
II rji'^fisliituro.

Power to Her
Miijetity to dole-
gittu oi-i'taiii
jiowcrt to tho
(loveriior ot'
Ilritisli C'oliiiii-
bia,

c. 82.
s. J). ; which Soc. 9

33 & 3t VICT. (1870)

Repealed hy 36 & 37 Vict. c. 15

has hecn repealed l)y S. L. R. Act (1883), Mi .t 17

Vict. c. 39.

An Act to authorise the Commissioners of Ilcr Majesty's
Treasury to guarantee the payment of a loan to l)o
raised l)y tho Government of Canada for the con-
struction of fortifications in that country.

[9th Aug. 1870.1

WHEREAS by an Act of the Parliament of Cnnnda of the year
1868, cliapter forty -one, the Governor in Council was authorised
to rai,s(» by way of loan u|)on tlte guarantee of the Comunssioners of Her
Majesty's Treasury (in this Act referred to as "the Treasury"), for the
purpose of the construction of the fortifications therein mentione»l, sums
not exceeding one million one hundred thousand pounds, an* I tho sums
so raised, with the interest thereon, and such sums as might be necessary
to repay the said loan, either by way of u sinking fund, not exceeding

3 D 2

11!

788

33 & 34 VICT. c. 82.— LOAN FOR DEFENCFi.

[1870.

iii<j i„wiicjwin«.».».w iv< >i.iiiiti J. uim wi I Hiiniia next
'or tho construction of tlio Intorcoloninl Tlailway •
spcdicn* to authorise tho TronMury to };ivi> such

Short titli'.

Power to I liP
Ti'cnsiiry to
gua'iinti't' loiin

Coiulitions of
gimmiitrc.

Aii|ilioation of
Hiiikiii^' fund.

Altcriition of
Act n latiiig to
guamnticd
loan.

I»sur out of
Consolidiitod
?und.

CiTtiflcntp of
amount paid
out of Coimor
ilatcd Fund.

one per cent., or in such other way and subject to stieh conditions as
the Governor in Council, with the assent of the Treasury, might detor-
niine, were charged on the Consolidated Revenue Fund of Canada next
after the appropriation for

And whereas it is cxj
gtiarantee :

Be it enacted by the Queen's most Excellent Majesty, l)y and wifii
the advice and consent of the Lonis Spirittial and Tcnporni, mik! Com.
mons, in this present Parliament assembled, and by tl;e authority of th«
same, as follows :

1. Tliis Act may l»e lited as "the Canada Defence"" Loan Act, 1S70."

2. Tlie Treasury may guarantee, in such manner and form as tliov
think fit, the payment of tlie principal of any loan raised by liii- Govern.

■ ment of Canada'iu pm-.suauce of 'he .said Act, and of interest tiiereon at
a rate not exceeding four per cent.

3. Th(^ Treasury shall not give any guarantee under this Act unless
and until provision is made to the satisfaction of the Treasury —

(1.) For the due payment, custody, and ai)plication of the nunev
rai.sed liy the loan, in such manner as the Treasury from
time to time direct:

(2.) For remitting to the Treasury the annual sums for the sinliin;;
fund by ecpial half-yearly payments in such nnuuicr as tlu'
Treasury from time to time tlirect, ami for the iiivcstniciii
and accumtdation thereof, under their direction, in tiic nanii"^
of four tru.ste<'s nominated from time to time, two l)y tlic
Treasury and two l>y the (lovernment of Canada.

4. T^'i<^ ^*"i<l sinking fund nmy Im; invested only in sucli .s'curitifs a>
the (loverinnent of Canada and the Treasury from time to time njjrcc
upon, and shall, whel'.ier invest<'(i or not, Im^ applied from time to tinn.,
undi r the direction of the 'IVeasnry, in di.sch.irging the prin(i|.al ot the
said ioa'i ; and tlie interest arising from s.ich securities (inclinlinf; tln'
interest aeerning in resju'ct of any part of the loan di.schargi'd by nicaiis
of file sinking fnr.il), aiui the resulting income thereof, shnli 1h> investnl
ai-'l applied as part of such sinking fund.

5. Every A<t passed by the Parliament of Canada whicli in any way
niimirs the priority of the dmrge uiM)n the Consolidated lleveniio Fuml

of C'</;/ffrfrt cri'ated by that Parliament of the said loan and ilic intiii".!
and sinking fund tliereof, and the sums |uud out of tlie Consilidalid
Fund of tiie ITnited Kingdom and the interest llieieon, shall, so lar only
as it ini|iairs such priority, 1m» void, unless such Act has licen nscrMil
for the signification of Her Majesty's pleasure,

6. ri'.i- Treasury are hereby authoriset' to cause t* be issued Ironi
time to time out of the growing prodii of the Consolidated Fuml
of tl'.e United Kingdom such sums of money as may at aiiV lime l.«'
reijiiired to bt- paid io fullil tlie guarante«! under Ihi?. Act in re>|K<'
ei'.her of principal or interest.

7. The Treasury may from time to time certify to oii' of Hit
]S[i;jesty's Principal Secrete.ries of Stale the amount which lias Ihtii
pai(l out oi the < ,)ns«)lidated Fund of the; Unitt'd Kingdom to iiiHil tin
giaraiitee under this Act, and the date of sucli payment ; such cert it; M''
shell be communicated to tliodovernor of Canmla, and shall 1hm'oiiiIii>h '
evi('enee of the amount hnving Imm-u so paid and of the time when llu'
sitine was so |Miid.

■j.

[1870.

1S70.]

33 & 34 VICT. f. 90— FOR. ENLIST. ACT.

789

conditions us

inii^lit (lotcr-

Cnnaila next

ninl Raihviiy ;

to givp .such

liy and witli
)ml, iind Com-
ithority of tht>

nil Aft, 1870."

form ns tlicy
)y tlic Govd'ii-
•«'st thereon m

8. The Trea.sury shall cause to Ik- prppuivd, and laid before lioth
Houses of Parliament, a .stisteinent of any jjuarantee {jiveii under tiiis
Act, and an aceount of all sums i.s.sned out of the Coiisididated Fund of
tiie United Kingdom for tlie pui'iKJses of this Act within one niontii
after the siune are so given or issued, if Pariiiunent lie tiien sitting, or,
if Parliainent be not sitting, then within fourteen days after the then
next meeting of Parliament.

33 & 31 VICT. (1870) c. 90.

Sec. 31 rcpealetl by S. L. li. Act, iS.S3, 1(> & 17 Vict,
c. 39. Preamble; Sec. 3, from " sbtill come," whtuv
those words first occur, to " tliereof and " ; Sec. 23, i\m
vords " Commissioners of " ; Sec. 2G, from " or other "
to "time being," and the words "to the liord Lieu-
tenant " ; Sec. 30, so far as relates to the term " Thi;
Secretary of State," repealed by S. L. K. Act, 1893
(No. 2), 5G & 57 Vict. c. 51.

An Act to Kegiilate the Conduct of Her ^lajesty's .sub-
jects (liiritit; the Existence of Hostilities bv 'ween
ioieiixn State-s with wdiich Her Majesiy is at

Aocmints to 1«
l.'iiil N't'oru
I'^uliiiincMt.

l\'!ice.

[9//. Aii</. 1870.]

U'lIKHKAS it is expedient to make pro\ision for tie reguhition
of liie eonduet t)f Her Maje.-^iy's subjects during the existence
(if li(i>liiilies between foreign .stJites witli which I lei .Majesty is at
iK'ili'e ;

lie it enacted by the Quwn's most Excelhnt Majesty. l»y and willi the
iiihice and eoUM'iit of tlu- Lords S|iiritUMl and 'I'einporai, and ('iiuuu(in>,
iii tliis jiri'sent Parliament a.ssembletl, and by tin- authority of the sitiiie,
ih follows :

I^rcliiniiKir

1, 'I ills Aet nniy be cited fv)r all pinposes as'*TIie Foreign V'nlist slidit litK' .it
imnl Act, 1870." -^i''

2, This Act shall extend io all the dominioiLs of llei 1 lii'sty, iuclud- /ii>iilicaiioiiof
iiig tlie udjneeiit territorial waters. ^'^^•

3, Tiii'^ Act siudl come into openitiuu in tlie I'uited Kingdom imme- ('(iiiiiucmi'l'-
cliately (11! the passing thereof, and sliall 1m' proclainu-d in every Uritish nuntufAct.
IKisse.xsion by the Ooveruor thereof as .soon as may be after in- reet-ixcs

niitice of tliis Act, and shall come into openition in that Ibitisli posses-
^i<in iin the day of sueh |)rocliinnitioii, and the time at which this Act
mnics into (iperaiion in any piiiee is, as rt'spcets such place, in this 'ei
referreii to as tl.t; conmu'ueement of this Act.

Illeifdl JiiilistiiuHf.

4, If aii\ (lerson, without the licence of Her Maj 'sty, being a British enmity <.ii
Mibjee!, -\it|;hi or without Her Majesty's (Uniiinions, accepts or agrees to tiibi-limnt in
iHviiit luiv conunission or ennacement in the inililarv or naval ser\ ice of '*''''^|'''' "

f
stale.

1 ;'

n' i

790 33 & 31 VICT, c. 90. -ILLEGAL ENLISTING.

I'eimlty i.,i
li'iiving 111!'
MiijustyV di>-
luiiiion.-' with
intent to .wrw
II foreign tstalu.

Penalty on
ciiiliarkinfT
jHTsoiis under
false rejireseli-
tationi as to
>crviec.

[1H70.

aiiv I'oivigii stiito at war with any I'oivigu hUHv at [tfai-i' witli IK.,.
Majesty, ami in this Act rcfenvd to as a trii-iully state, or wlictliei' a
Urilish suhjei't or not within Her Majesty's (loniinions, inchiecs anv
other I erson to a( cept or agree to accept any couiniission or cnfii'ri".
nieiit in the mihtaiy or naval servic ■ of any such foreign .state as al'ore-
said. —

Ho sliall Ik- guilty of an offence against this Act, anil shall l)e
pnni>hal)le by lino ami iinprisonmont, or either of sudi imnisli-
niont.s, at the di.scretion of tlie court before wiiich the oileiidei
is convicted ; and iinprisoninenl, if awarcU'd, may be eilliir
with or without hard laboiu-.

5. II any per.sou, without the licence of Her Majest\, being a Bi'iish
.snbji'ct, »inits or goes on board any ship With a \ iew of tiuitting Her
Majesty's dominions, witii intent to aecept any comiuission or eii<'a"e-
mont in the military or naval service of any foreign state at war wiili a
friendly st4ite, or, whotiier a Eritisii subject or not, witliin Her .\hijeslv'
dominions, induces any other person to (juit or to go on board ii,
shi[> with a view of ijuitting Her Majesty's dominions with the like
intent, —

Ho shall be guilty of an offence against this Act, and shall 1m'
pinii.shable by fine and im|)risonment, or either of such i)iini-li
meats, at llie discretion of the court before which the otJemler
is <'onvictetl ; and imprisonment, it' awarded, may bo either
with or without hard lal)0-.r.

6. If any iH-rson induces any other person to (|uit Her Majesiv's
dominions or to etnl)ark on any ship within Her Majesty's (louiiiiioiis
under » misreprosentation or false repre.si-ntation of the service in which
such |H'rson is to be engaged, with the intent or in order that such persoi;
may acceiit or agree to accept any commission or cngageinent in the
military or naval si'rvioe of any foreign state at war with ;i friomlly
state, —

III' shall be guilty of an offence against this Act, and shall he
puuLshable by line and imprisonment, or eitlier of such iiuiii^li-
ments, at the discretion of the court before which 'he offendir
is convicted ; and imprisonment, if awarded, may he eiiher
with or V iihout hard laboui'.

(1 to as illegdly eulisted iK'rsoib;

Penalty on 7. If ''"^' 'na.ster or owner of any ship, witiicuit the licence nf Ifii

taking ille(,'ally Majesty, knowingly either takes on board, or engaj;cs to take on hdind,
enlisted persons ^^^. \^^^^ q„ i,oj,i.,1 sni^h ship within Her Majesty's doniini' ns, anv of the
on board ship, loijowing per.sou.s, in this Act rel'envd
that is to sjiy,

(1.) Any jM'rson who, being a British subject within (?r witlidiil the
dominions of Her Majesty, has, without the licence of Her
Majesty, accepted or agreed to accept any connnission or
engagement in the military or naval .servic*; of any foreijrii
statt! at win- with any friendly state ;
(2.) Any person, l)eing a Brit-.^u sujjject, who, without the lieciiee of
Her Majesty, is about to (|ui* Her Majesty's doininions wiili
intent to accept any <'omm'.ssio!i or engagement in tin' niiliian
or na\al service of any foreign st4ite at war with a frieinlly
state ;
(3.) Any person who has Ix'on induced to end)ark inider ,i uii.Mepn
sentation or false represent4ition of the service in which .'■ikIi
|R»rson is to 1h' engaged, with the iuteut or in order that smli

1870] 33&3i VICT. c. 90.— ILLEGAL SHIPBUILDING. 791

person may accept or agree to accept any conunission or eii<i;ii;;i'-
iiient ill the military or nasal nervice of any foreign stati* at
war with a friendly .stiite ;

SiK'h master or owner .>iliall be guilty I' an offence against this Act, and

till' following consequences shall ensue ; tliat is to say,
(1.) The offender shall be punishable by fine and inii>ri.sonnient, or
either of such punishuicnts, at the discretion of the court
before which the offender is convicted ; and iniprisoniuent,
if awaiiled, may be either with or without hard labour; and
('!.) Such ship shall be detained until the trial and conviction or
acipiitlal of tiie master or owner, and until all penalties intlictcd
(III the master or owner have been paid, or tlas master oi
"Wiier has given security for the payment of such iM'iialties
to the .satisfaction of two justices of the peace, or other
nuigistrate or magistrates having the authority of two justices
of the peace ; and
(a.) .111 illegally enlisted persons shall immediately on the discovery
of the ott'eiice be taken on shore, and shall not be allowed to
return to the ship.

Illegal Shipbuilding and Illegal Expeditions.

8, 11 iiiiy person within Her Majesty's dominions, without the licence
'if ller Majesty, does any of thf following acts ; that is to siy,
(1.) Builds or agrees to build, or causes to be built any ship with
intent or knowledge, or having reasonable cause to believe
that the same shall or will Ik* employed in the military or
naval service of any foreign state at war with any friendly
state; or
('!.) Issues or delivers uuy coiuuiission for any ship witn intent or
knowledge, or having rea.sonable cause to believe tliiit the .same
shall or will be employed in the military or naval ser-.ice of any
foreign state at war with any friendly state ; or
(3.) E(iuips any ship with intent or knowledge, or having reasonalile
cause to believe that the same shall or will be employed in the
military or naval service of any foreign state at war with any
friendly state ; or
(4.) IJespatches, or causes or allows lo be despatched, any ship with
intent or knowi;'dge, or having reasonable cause to believe
tliat the .same shall or will l)e employed in the military or naval
.service of any foreign state at war with ai v friendly state ;
SiK'li [H'fsen shall be tleemed to have committed an otTeiiee against this
.\it, mill the following coiise(piences shall ensue :
(I.) The oil'eiider shall be punishalilc by fine and iiii|)ri'.oiinient, or
either of such punishments, at the di.seretion of the court before
which the otleiKh'i is coii\ i<tetl ; and imprisonment, if awarded,
amy be either with or without hard lalioiir ;
('J.) Tile ship in res[H'ct of which any sueh olfeiice is committed, and
her ecpiipnicnt, shall be forfeited to Ifer Majesty:
I'nivided that a ijcr.son buihling, causing t > Ih* built, or e<|iiip[)ing a shi|t
ill iiiiv iif the cases aforesaid, in pursuance of a contract made before the
comiiii'iii t'inent of such war as aforesaitl, shall not Ite lial)le to any of tlio
[K'nalties impo.sed by this section in respect oi such building or e(piii>|iiig
if ho satisfies the eoiiditions following ; that is to Miy,
(1 ) If forthwith upon a piwlamati*)n of neutrality U'iiig i^slled by
Her Majesty, hi' gives noti«H' to the >Secrftarv of Statr that he

I'l'iiulty nil
illciriil sliip-
)iuil<liii)r iiiul
illi'giil txpe-
diliuiiH,

■h|i

I 111

IHi

|:|<S

5 :

! 11

1 i (:

i I

I'rotiiiiptiiiii
to cviileiKv

ill I'llM' of

ilU'pil sliip.

I'rinillv on
iiiiliiiij the
wiirlikf ciiuiii-
llirlit of foriigll
»llip!<.

702 33it;M VICT. f. 5)0.— PKNALTIKS KOU AIDING, \,. [is;,,

is so liiiihlin;;, causiii;; t(. lie built, or ciiuipiiiiif; siicji siiip, „|„i
I'miiislics siu'li |iiirliriilars of tiio eoiitracl, luiii of niiv iiiiniiis
I'rliilin^ to, iir (lone, oi' to lie done iiikIcI' the foiitnic't ns m,,,
lie n'i[iiin-(l liv till' Scci('tai-y of Stal«' :
(2.) If lie ^'ivcs sticli security, and takes and |MTiuils to 1m' taken muI,
otlicr iiifasiircs. if anv, as tlic Sct'ielary of Slate nmy iiivMiilH.
for eiisiiriii<; that siieli sliip slmll not lie des|iat('lii'il| <|rliM.|,.||
or removed willioiit the liecuee of Iler Majesty until tlie teinij.
nation of such war iis afoicMiid.

9. Where any slii|t is Imilt by o, ler of or on lieiiall of unv fonin
slate wiieii at \\;<f with a friendly state, oi' is delixcred to or In ilu. „|||||
of such foreij;u state, or any person wiio to the knowli'doe of the pcisoi,
linililin^r is an ao,.nt of sneli forei<;n state, or is paid for by siieh foici<'ii
state or such aj^eiit, and is employed in ill;' niir'ta''y or naval m'ivJit of
sueh foreio;n state, such ship sl>all, nntil the •ontniry is |)i-o\((|. I,
deemed to lia\e been built with a view to bein;; so eiiiploNiij, iim! tin
burden shall lie on the builder of sueh ship of proving llini he iliil mi,i
know that the ship was intended to be so employed in the niililtirv m
naval s»-r\ iee of sueh forei};n state.

10. 11 i>'iy person within the dominions of Her ^^lje^ty, iiii,| wjiIkmh
the lieenee of Her Majesty, —

My addino to the numbei- of the o;uns, or by ehanoinjr (how on ],„;».]
for other };nns, oi' by the addition of any e(piipinent for \v,ir, im'reiiMx.i
an<;mi 'its, or i-roeurcs to 1k' inerease'.l nv anj^mented, or i> knowiin;!'.
eoneerned in increa<in;: or anoineutiuf; th warlike force of »n\ An\i
which at the ti le of her iK-in;; within tlie dominions of Her MiijeslvwM^
a ship Ml the miii'ury or naval service of any fon-ij^n slate at war uiil,
any rri iidly state, —

Si.vh iM'rsoii shall be oiiilly of an oiTence against this Aet. iind slmli
lie punishable by line and imprisonment, or either ni muL
punishments, at the discretion of the court Ix'fore wliicli ili>
offender is roii\ ieted ; and imprisonment, if awanleil, niiiy \>^
either with or without hard labour.

11. If any |K'rson within the limits of Her Majesty's (loiiiinioii> .mil
without the licence of Hei' Majesty, —

l'repai'«'s or lits ont any luual or military expediliuii to [nwA
a;;ainst the doniiniu'js of any friendly state, the followinjj euiiH'(iiniiri-
.shall ensue :

(1.) Kvery person on<;a<i;ed in such preparation or litlinf; out, m
iissistinj; therein, oi' employed in any caiiicity in siieli ixpiili-
tion, shall Im- f^uiity of an offence ajj;ainst this Act, ainl -iiall 1«
punishabh- by line aial im|)risonment, or either o! »iii'ii |iiiiii>li
inents, ai the discretion of the court before which tlie olTiinl'i
is com ieted; and imprisonment, if awarded, may he eitlnrwiili
or without hard laliour

(\1.) All ship^, and theii' ecpiipnients and all anus and niiiiiitiiniMil
war, used in or forming part of such expedition, sliall l»
torfeited to Her Majisty.

I'uiiiiihiiii'iit of 12. Any [M^rson who aids, abets, coinisels, oi' procures the coniiniv:"ii
iu'cig.-suric.>^. of any olVence apiinst this Act shall be lialiK- to Ik- tried and |Mini«liiil "'

a jirincipal oiTender.

I'elKilty Mil
IIUIii);oiil
naval or Mili-
tary I'.Xpl.li-

tionn witboiii
lieoiKV.

ijiniitation of
tiTiii uf iin-
prlHutnni'iit.

13. The ierni of imprisomnenf to be awarded in res[R'et of any nffiua
iguinst this Act shall not exceed two yeurs.

\m.

Xi & 31 VICT. f. !)().— ILLEOATi PUIZK.

'Mv, 1111(1 wiilidiii

Jllct/al Prize.

14, If. iliiiiiiti tilt' colli immiicc of iiiiy war in wliidi Iftr iMaji'.sty iniiy '
lie iiciili'ill, iiiiy ship, floods, or iiu'rcliitiKlisc ciijitiii't'd as prize of war
wiiliiii till' icrrilorial jurisdiction of Her .Majesty, in violation of liie
iii'Mtralitv of tliis retdiii, or t'aptured li\ any siiip wliieli may liave lieeii
liiiiit, opiipi**')!, eoininissioned, or despatched, or tlie force of wiiich iiiiiy
liiivi' Ih'cii mi<;iiiented, contrary to tlie provisions of this Act, are liroiijihl
witiiiii till' limits of Her Majesty's duniinions hy the captor, or any a;;ent
ol the I'liptor, or l»y any jteison havin;; ci.iiie into possession thereof with
kiiip«lt'ilf,'<' that the same was priie of war so eaptun'd as afoiesnid, it
slmll lie lawful for the orif^inal owner of such laize, or his ap-nt or lor
iiiiv [KTsdii authorized in that hehalf liy the (lovernnient if the 1'oreij.ni
>liili' til which sMcli owner lielonirs, to make application to the ("oiii't of
Ailiniraltv for '.eizure and detention ol such prize, and the court shall, on
ilnr iii'oiif of the facts, order such prize to lie restored,

IviTv such order slia'l lie executed and carried into eil'ect in the saiiK^
iiiuiii.t'i', and siiltjecf to the same rijjiil of ap|M'al, as in <'asc of ai.y oi-iler
iiiiiilr ill the exei-cise of the ordinary jurisdiction o*' such court ; and in
thr iiKiiiitiiiie a III until a iiiial order has lieen made on such ii|)plicatioii
till' CDiiit shall nave power to make all such provi; 'luial and other orders
»> III the cure or custody of such captured shij), ifoods, or merehandise,
mill (if till' sinie 1m' of perishalilc nature, or liicurrin;; risk of dcterioia-
li(iii) fur the sale tlier 'of, and with res|>ect to tlie deposit or iiivestmeiit
III' the pi'iiceeds of any such sile, as iniiy lie made liy such court in the
ixi'ivisc of its ordinary jiirisdietion.

1 \<r\y.r

1 icillj.^llt iiilo

l!rili-li puc!-.
I'lslolVil.

v's iloiiiinions ,m<\

(iciwraf J' III ri. skill.
15. Fur ihe purposes of this Act, a liieiice l»y llcr Majesty shall he l.iinuf l.y

iinilcr the siyn manual ol lit r Maicstv, or Iw siynihed Ity Order in ,"" • ' '•' 'V
(.oiimil or liv proeliniiation ol Her 31a estv. "

.liii'iMtii'tiiiii
111 n>|)(C't lit"
iiUriii'is hy
IHi-^ons ii^iiiiiN
Aft.

Lri/ttl Pi'uecdiire,

16. All} otVenee a(;ainst this Act shall, for all purposes ot mid incidental I
III ilii' liiiil iiiid punishment of any [lerson f;iiilly of any siu'li oll'eiice, he
ilrriiiiMl III liaM' U'cn committed either in the place in whicn the olVeiiee
wiis wliiiliv iir partly eoinmitled, or in any place within Her Maji'sty's
iliiiiiiiiioiis ill which the person who committed such olTencL' may lie.

17. Any elVcni c iii^aiust thi.s Act may lie descrilied in any indictment Vinue in
iiintlu'r ilivilliieiit relatill}; to such oireliee, in cases where the mode of I'l ;-l><'i't <it
tiiiil ifiiiiiii's such a ilescriiition, as liin iiii' liecii comiiiiiii'il at the place ""'''"^'''^ 0
wlh'ic it wai wl iilly or partly comniitt 'd, or it may he averred {^eiiciiilly J ,,.' ^..
III liiive liieii ctiinmitted within Iler .Majesty's dominions, and the venue J. uV. "

III' local description in the mar};in may Ih' that of the county, city, or
plin'i,' ill which the trial is hehl.

18. 'I'll!' following :iiithiiiitics, that is li* say, in the I'luled Kiiifiilom
iiiiy jiiil};i' III' a su|K'rior court, in any other place within the jurisdiction
III iiiiy Hiili>h court of justice, such court, or, if there are more courts
tliiiii oiii', till' court ha\ in;; the highest criminal jurisdiction in that place,
limy, hy warrant or inslrument in the nature of a wai-raiil in this section
iiieliiilcil in the term " warrant," direct that any olVciidcr cliarp'd with
.iiHilIciiii' apiinst this Act sliiill lie r»'moved to son<e other phu-e in Her
.Mttji'sty's ilominions for trial in ciim-s where it appears to the authority
^luiiliiij; the waiTHiit that the removal of such oliendcr would he con-
iliieive to the interests of justice, and any prisoner so reinovcl shall lie

Puttcl' Id II'-
miiVc (itKliilcR^
fur ti'iiil.

I . .

Ijlli

.Tiii'is>lic'tiuii
in ivspc'ct of
i'orffiturc of
sliips for
offi'tic'os iigainbt
Aef.

I{uf{uliitiuiis IIH
to ]irocir(liiigs
anaiiist tla^
otil'iulvr iiiul
H{;aiii«t tliu
bhip.

OffiiTrs autho-
rize! to l<'iZ0
ot)riiiliii(;
fcliips.

Powers of oft'i-
ctTH authorized
U) suizc »hip!i.

794 33 & 34 VICT. c. 90.— LEGAL PROCEDURE. [1n7o.

liitilile 111 the plaoc to wliifli Uv is rcmovcti, in llu' .s«im' inaDiicr as if liis
offence had been comniitted at such phiee.

Any winnint for the pinposes of this section may Im nddresiscd lo iji,.
iniistcf of any ship or to any other person or pei-sons, and the pcisoii or
pefsons to whom such warrant is nd(hessed siiall liave power to convcv
th(^ prisoner therein named to any places or phiees iiaiiied iti mhIi
warrant, and to (Udiver him, when arrived at such place or phiccs Jnti,
the cu.stotly of any authority designated by sncli wtniant.

Every prisoner shall, diiriiifj the time of his removal lUKhr uriv mkIi
wiirrant as aforesaid, he deemed to he in the lej^al custody ol' the jxiMui
or per.>*ons eni[iowered to remove him.

19. All iiroccediiif^s for the conth-mntition and forfeittnc of a ship, i,i
ship :ind (Mpiipment, or arms and miniitions of war, in piiisiiaiici' of this
Act shall require tlie sanction of the Secretary of State or such chid
executive authority as is in this Act mentioned, and shall he had in thi'
Court of Admiralty, and not in any other court : and the Coint of
Admiralty shall, in addition to any power given to the court iiy this Aci,
have in respect of any ship or other matti'r brought before it in piusii-
aiice of this Act all powers which it has in the case of a ship or luattci
brought before it in the exercise of its ordinary jurisdiction.

20. AVhcre any offence against this Act has been coiniiiittcd liv anv
person by reason whereof a ship, or ship and «-(iuipm('iit, or aims imd
ininiitions of war, has or have become liable to forfeiture, |)roc('('(lin;:--
may be institute<l contcmixnaneotisly or not, as may be th(iiif.'lii lit,
against the oll'cnder in any court having jurisdiction of the oilVncc, hikI
against the ship, or ship and equipment, or mins and munitions of war.
for the forfeiture in the Court of Admiralty ; but it shall not be ncnssary
to take proceedings against the offender because proceedings arc insti-
tuted for the forfeitiu'c, or lo take proceedings for the fori'eitun iKraiisi'
proceedings are taken against the offender.

21. I'he following officers, that is to .S4iy,

(1.) Any otiicer of customs in the United King<lom, subject ntvcriln-
less to any special or gcncrid inf^tructions from the t'oinniis-
sioiters of Customs, or any officer of the Hoard of 'I'ladi',
subject nevertheles> to aii_\ special or genersd instructions I'loni
the JJoard of Trade ;
(2.) Any olliccr of customs or public officer in any Uritisli possession.
subject nevertheU'ss to any sjHvial or general instructicns from
the CJovernor of such possession ;
(3.) An\ commissiom'd ofTicer on full pay in the loditarv st'r\iic of
the Crown, sid)ject nevertheless to an\ special or ;;rnrriil
instructions from his commanding oflicer ;
(I.) Any eommissioiu'd olliccr on fidl pay in the naval wrviccof tin
Crown, sidtject nevertheless to any special or geiiciid instruc-
tions from the Admiralty or his superior otiicer,
may seize or detain any ship liable to be seized or detained in pursuaiar
of this A.ct, .'ind such officers arc in this Act referred to ii tln'"io«il
authority"; but nothing in this Act contained shall derogate from ihc
l)ower of the Court of / duiiralty t<i direct any ship to 1h' scizcil r
detained by any oHiccr by whom such cotirt nwy have power iinilei ii?
ordinary jiirisi'iction to direct a ship to l)e seiztnl or detaine<l.

22. Any olfic* r authorized to seize or (U'tain any ship in respect of iiin
offence agains' nis Act may, for the purpose of enforcing such s<'i/,tiri' en
detention, c .«i to his aid any constable or oflBeers of police, or »n.» ol!ia^

uner iis if liis

1870.]

33 & 34 VICT. e. 90.— SEIZING SHU'S.

705

executive
iiutliiirily Id
(letaiii ship.

of Her 3Iajt'stv'M army or navy or muriufs, or any «'Xcihi! oHlci'i-s or
offiwrs of custom.s, or any liarbonr-niastt'r or ilock-niiistcr, oi- any oHicors
Imviii" authority by law to niako seiziucs of .sllip^», and may put on hoard
iitiv sliii> w) seized or <lotuined any one or more of .sucli olliccrM to takt-
ciiiii"f of the same, and to enforee the provisions of tiiis Aet, and any
olliwr seizing or detainin}^ any ship inider this Aet may ns»! force, if
nmsxarv, for the puri)ose of enforein<; seizure or iletention, and if any
iKison i."i killed or maimed hy reason of his resisting such ollieer in the
ixeiution of his duties, or any person acting under his orders, sneh
olliiw so seizing or detJiining the shij), or other person, shall he freely
1111(1 fully indenmified as well against the C^ueen's Majesty, her heirs and
Miict'ssors, as against all [lersons so killed, maimed, or hurt.

23. I' ''"' Secretary of State or the chief executive authority is satislied Speelnl jjowi r
that there is a reasonable and proliable cause for believing that a ship ot'Seeretiiry «>f
within Her Majesty'.s <lominions has been or is being built, connuissioned, f'tati ureliut
(ir cqiiipiH'd contrary to this Act, and is idiotit to he taken iK'Vond the
limits of such dominions, or tliat a shij) is id)out to he (K'siwitehed con-
Iraiv to this Act, such Secretary of Stnte or chief executive authority
>!iall have power to i.ssiie a win-rimt stating that there is reasomdile and
IHolmlile cause for belit^ving as id'oresaid, and upon such warrant the
local iiiitliority shall have iH)wer to seize and search such .-^hip, and to
detain the sjiine imtil it has Im-cii either condemned or released hy process
of law, or in manner herein-id'ter mentioned.

Tile owner of th(! .shii» so detained, or his agent, may apply to the
Court of Adniiridty for its release, and the court shall as soidi as possible
put the matter of such seizure and detention in course of trial between
the apiilieaiit and the Crown.

If the applicant establish to the sitisl'action of the court that the .ship
was not aiul is not lM>ing built, conninssioned, or e(piiii[)ed, or intended
to k' despatched contrary to this Act, the sliip shall he jclea.sed and
restoivd.

If the applicant fail to establish to the satisfaction of the court that the
siiip was not and is not bjing built, conunissioncd, or ecpiipped, or
inteiiiled to 1h' despatched contrary to this Act, then the ship shall Ik;
detained till ndeased by order of the Secretary of State or chief executive
authority.

riie court may "u ca.s«>s where no procecdii.gs arc pending for its con-
(h'liinalioii release any "hip detained undi.' t.is section on the owner
jjiviiij; security to the .satisfaction of tin '■ tnrt that the ship .shall not Im-
I .aplove 1 .oiitrary to this Act, notwithstanding that the applicant may
have failed to establish to the satisfaction of the coint that the ship was
ii"t and is not being built, connni.ssioued, or inteiuled to 1)0 despatched
wiitraiT t(, this Act. The Secretary of StaU- or tin? chief executiv'5
luthority may likewise release any ship detained under this section on tiio
owner giving .swurity to the satisfaction of such Secretary of State or
ihiet eM-eutiv author'ty that the .ship shall not 1h' employed contrary to
ilii .Vet or ;iiiiy r-di use the ship without such .secinity if the Secretary
"I State or ehi'f executive authority think lit ,so to release the same.

It the court 1h! of opinion that 'her*; was not rca.sonahle and probable
laise for the detention, r.nd if no such causi; appear in the eoiu'se of the
piixir(lin2;'., the court shall haxc power to declare that the owner is to be
iiideiiiiiilied hy the jxiyment of costs and (hnuages in respect of the
detention, the •nnount thereof to In; assesstd hy the court, and any
aiuoiuit so assessed .shall be payable hy the (.'ommissioiu'rs of the
fntuMiry out of any moneys legally ai)piicahle for that purpo.se. The
Court of Admimlty shall also have poNver to nuike u like order for the

!! li;

iiiilii

H , !i

' 1 1 u

J 1

1 1 H

i ill iW

Spi'ciiil powii-

of lllClll lltltllO-

I'iiy l<> ililiiiii
bhip.

796

33 & 34 VlCr. I'. 90.— FOREIGN SHIPS.

[1H70.

iinlfmuily of tin- owm-r, on the iiii|>licatioii of .•iiu-h owner to tin. ,.„||,|
ill a summary way, in cases wliere tlie ship i.s released liv tlic oi-,|,.|. ,,1
llie Secretary of State or tlie eliief exeeiifive aiitliority, l)ei(.re ai.v ii|,h|i.
eatioii is inadt- liy tlie owner or his a<;ent to tlie court for siuli iclcnM'.

Nothing in tliis section eontaiiietl shall uifect aiiyproeeeiliii<rsinstiti||,,|
or to lie instituted for the condenination of auy ship detained uadir tliis
section where such ship is liable to forfeiture, subject to this nidvisidr
that if sucli ship is restored in pursuance of this section all priKtcdinir,
for such eondeuiiiation shall be stayed; and where the eiiuit (li'('laiv>
that the own«'r is to be i.ideniuilied by the payment of costs and diinmvrcs
for tlu' det.iiner, all costs, charges, nnd e.\[)ensos incurred liv muIi own,;-
in or about any proceedings for the condcmnution of sneli ^hip slmll lie
added to the co.sts and daiuages iMiyable to him in respect of the (leiintiijii
of the ship.

Nothing in this section contained shall apply to any foreign noii-cuni-
missioned ship desimtched from any part of Her i\Iajes-'s doiiiiiii(iii>
after having come within them under stress of weather or in tiic coiiix'
of a peaceful voyage, and u|)On which ship no litting out or e(|uip|iin<.' ui
a warlike character has taken place in this country.

24. Where it is representt'd to any local authority, as dcliiud liv tin-
Act, and such local authority believes the i'ei)resentalion, that tiiciv is n
reasonable and probalile cause for believing that a ship within JItr
Majesty's dominions has been or is lieing built, commissioned, (ii'('i|iii{i|H'i|
contrary to this Act, and is about to be taken la^yond the limits ol' mkIi
dominions, or that a shi|) is about to be (h'spatched contrary to this .\(i,
it shall be the duty of such local authority to detain such shi|), iiml I'diiii-
with to communicate the fact of such detention to the Secretiny of Statf
or chief executive luithority.

I'^pou the receipt of .such commuuicatioii the Secretary oi State (ir
chief e.vccutive authority may order the ship to be released if lii' tli'iik-
there is no cause for detaining her, but if siitistied that there is iviiviiialiii'
and probable cause for belie\ ing that such shii) was built, emniiiissionid,
or (Mpiipped or intended to be despatched in contravention of this Act, lie
shall issue his warrant stjiting that there is reasonable and pro! lalilr tails'
for belicv ing as aforesaid, and upon such warrant lieing issued I'lirllKr
|iroceedings shall be bati as in cases when; the seizure or di'teiilioii liiis
taken place on a warrant issued by the Secretary of State witlioiit aiiv
communication from the local ;i'.;t'.iority.

Where the Secretary of State or chief executive authoiily onlcis tlir
.ship to be released on the receipt of a connnunicatioii fidiii the iiKai
authority without issuing his warrant, the owner of the ship sluill 1m' in-
demnilied by the payment of costs and damage's in respect of tlu'
detention upon application to the Court of Admiralty in a siniiiiuiiy wny
in like mamieras he is entitled to be indemnitied where the Secietiin ol
State having issued his warrant under this Act relea.ses the ship Ix'lon
any application is niiuh' by the owner or his agent to the court for ^^lali
relei se.

25. The Secretary of Stiite or the chief executive authority iimy. liv

other pliiif
pure as to tlie (lestiiiatioM nt' iinv
eiiiiiloved

till'

Exi'ivist' of
powers of

warrant, empower any person to enter any dockyard or

within Her Majesty's dominions and intpiire as to the ch'stii

ship which may appear to him to be intended to be eiii|i. _

naval or military s«'rvice of any foreign state at war with a friemlly stiilo,

and to search such ship.

26. Any powers or jurisdiction by this Act given to the Seiivtiuv ol
State may be exerciseil by him throughout the douiinious of Her Jhiji'^tv,

IS70.] 33 & 34 VICT. c. 90.— INTERPRET ATN". CLAUSE. 707

iind siieli powors nnd jurisdicition may nl«o lie oxorcisod by nny of tlxf
following olficors, in this Act referred to iih the chief exceutive authority,
Avilliiii tlipir res|)C(!ti'e jurisdictions; that is to say,
(1.) In fnldiul l»y the Lord Lieutenant or othei- tiie chief governor or
governors of Ireland for the time In-in};, or tiie Chief Secretary
to the Lord Lieutenant :
{"!.) In Jersey by the Lieutenant flovcrnor :
(.1) In Guernsey, Aliicriiey, and Snrk, nnd the deiiendent islands by

the Lieutenant Governor :
(I.) in tiie Isle of Man by the Lieutenant Governor :
(5.) In any British possession by tho Governor.

A copy of any warrant issued by a Secretary of State or by any officer
imtliori/Hl in pursuance of this Act to issue such warrant in Ireland, the
Channel Islands, or the Isle of Man shall be laid before Parliament.

27. An appeal may 1m' had from any decision of a Court of Admindty
under tills Act to the same tribunal, and in the sunc manner to and in
wliicii an ai)pi'al may be had in cases within the ordinary jurisdiction of
tlif court MS a Court of Admimlty.

28. Subject to the provisioi's of this Act, providing for the award of
(liiiiia^i's in certain cases, in respect of the seizure or detention of a
>lii|i liy the Court of Admiralty no danuiges shall be payable, and no
(iHicir Df local authority shall be responsible, either civilly or criminally,
ill ri'SiKiit of the seizure or detention of any ship in pursuance of this
.\cl,

29. Ill" Secretary of State shall not, nor shall the chief executive
iiiitliorily he responsible in any action or other legal pnx'ecdings wliat-
sni'vor for any warrant issued by him in pinsuancc of this Act, or be
ixaiiiinnlile as a witness, »'xcept at his own request, in any comt of
jibtico in respect of the circumstances whicii led to the issue of llu;
warrant.

hiterpretatic.i ( Uaiise.

30. In this Act, if not inconsistent with the context, the following
Icniis have the meanings herein-after respectively assigned to them ;
I hat is to siy,

" B'oicigii state " includes any foreign prince, colony, jirovince, or
part of any pro\ inco or peo|)le, or any person or persons exer-
cising or assuming to exercise the ])owers of government in or
over any foreign country, colony, province, or part of any iMovince
or ])i'ople:

"Military service" shall include military telegraphy, nnd any other em-
ployment whatever, in or in connexion with any military operation :

" Xiival .service" shall, as resjiects a jierson, include service as a marine,
t'in[)loymcnt as a pilot in piloting or directing the course of a
ship of war or other ship, when such ship of war or other ship is
iM'ingused in any military or naval operation, and <.ny employment
whatever on board a shi[) of war, transport, store ship, privateer or
ship under letters of manpie ; and as respects a shifi, include any
user of a ship as a transport, store ship, privateer or ship under
letters of marque :

'' United Kingdom " includes the Isle of Man, the Channel Islai-ds,
ami other adjacent islands :

" British posse.ssion " means any territory, colony, or jilace being part
of Her Majesty's dominions, and not part of the I'nited Kingdom
as defined by this Act :

Secretary of
Statfi or ehiof
excciitivH
autlioritv.

Appeal from
Court of Ailini-
ni'.ty.

Indfninily to
officer-'.

Inilemiiity to
JSeeretiiry or"
Stale or ellief
ixeciilive
authority.

Iiiterprotntioii

of tenil'i.

" l'orei(,'ii
state :"

" Militjiry
service :"

" Naval
service :"

" Uuited
Kiugdoni :"

" Uritish
possession ;"

'i (

I'M f ■"

iiill'

798

" Court of
Admiriilty :"

" Shi]. :■•

" Duiltling :''
"Kquii-piiig;

" Ship mill
t'qiiijmu'iit :'

" MllsttT."

Rppoiil of
Fon-igii Jln-
liNtmi'iit Apt.

SO (ioi). 3.
0. OS).

Sftvinp as to
ootnniiso'ioncd
foreign ships.

Penalties not
to extend to
persons en-
tering into
niilitJiry service
in Asia.

69 Geo. 3. c.
69. s. 12.

33 & 34 VICT. c. 90.— REPLAL OF ACTS.

[1«70.

" The Secretary
of Htato :"

" Oovenior :"

" The Secretary of State" sliall mean any ono of Her Majesty's
Principal Secretaries of State :

" The Governor " uliall as res|)e('tH finfin mean tlie Onvernor Oeiiomj
or the Governor of any presidency, and wliere a Hritisli possessidn
consists of several constituent colonies, mean the Governor (ieneii,!
of the whole possession, or tlu! Governor of anv of tlie ecu.
stitnent colonies, and a.s respect.s any other Hritisli possession it
shall mean the olKcer for the time lieinj; adniinisferiiifj (lie L'ovein.
ment of such possession ; also any (H-rson aetinf; for or in the
capacity of a Governor shall lie included tinder the term " Cm.
vernor " :

"Court of Ailniiraity " shall mean the High Court of Adniirnlivnf
ICiif/lnml or Ireland, the Court of Session of Srotlmid, or nm
Vice- Admiralty Court within Her Majesty's dominions;

"Ship" shall include any ilescription of lioat, vessel, tloatin;; Imttcrv,
or Hoatin;; craft ; also any description of lioat, vessel, or other erntt
or Imttery, made to move either on the surface of or muler waicr,
or sometimes on the smfaee of and sometimes under water:

"Buildinfi;" in relation to a sliij) shall incliah' the doinj; aiiviui
towards or incidental to the construction of a shin, ami all wnnN
having relation to huilding shall he construed aecor(lin<;ly :

" Eciuipping " in relation to a ship shall include the fiiriiishin<{ a s\m\
with any tackle, apparel, furniture, provisions, arms, nnmitions, m
stores, or any other thing which is n.scd in or alioiit a siiip for iln'
purpose of fitting or adapting her for the sea or for naval service,
and all words relating to ecptipping shall lie construed accordingiv :

" Ship and equipment " shall include a ship and eveiytliing in nr
la-longing to a .ship:

" Master " shall include any person having the charge or (•oniniiiiul
of a sliii).

Repeal of Aets, ami Saviiu/ Clauses.

31. From and after the commencement of this Act, an Act passed in
the fifty-ninth year of the reign of His late Majesty King (leorf;e the
Third, chapter .sixty-nine, intituled "An Act to prevent tiio enlistirif; or
engagement of His Majesty's siilijecls to serve in foreign service iiini
the fitting out or eipiipping, in His Majesty's dominions, vessels fm
warlike piU'poses, without His Majesty's licen.se," shall he re|Kalnl :
Provided that such repeal shall not affect any penalty, forfeiture, oi'
other jHinishment incurred or to be incurre<l in respect of any offiiKv
comniitted before this Act comes into operation, nor the institution ef
any investigation or legal [iroceeding, or any other remedy for enforeiii;;
any such penalty, forfeiture, or pmii.shiucnt as aforesaid.

32. Nothing in this Act contained .shall subject to forfeiture any
commissioned ship of any foreign state, or give to any Britisli court over
or in respect of any sliij) entitled to recognition as a coumiissiomMl siiip
of any foreign .state, any jurisdiction which it would not have hail if tliis
Act had not passed.

33. Nothing in this Act contained .shall extend or Ik- coiisfnied to
extend to subject to any penalty any person who enters into the niilitiiry
service of any prince, state, or potentate in Asia, with such leave er
license as is for the time l)eing retpiired by law in the case of snhjeetsot
Her Majesty entering into the military service of princes, states, or
potentates in Asia,

rgo or t'ommiiiiil

1871] 31 A 35 VIOT. c. 28.— ESTABLISHING PROVS. 799

33 & 3t VICT. (1870) c. 102.— [.^^'^ ante, p. 773.]

31. i'k 36 VICT. (1871) c. 28.
Amondod by 49 & 50 Vict. c. 35 [wliich aer post].
Preamble from "Be it enacted " to "same as follows"
repealed by S. L. R. Act, 1893 (No. 2), 50 & 57 Vict,
c. 61.

An Act respecting the establishment of Provinces
in the Dominion of Canada. [2dth June 1871.]

WHKllKAS doubts have been entertained respecting?
the powers of the Parliament of Canada to
pstablisli provinces in territories admitted, or which
may hereafter be admitted, into the Dominion of Canada,
and to provide for the representation of such provinces
ill the said Parliament, and it is expedi'^nt to remove
such doubts, and to vest such powers in the said Par-
liament :

Be it enacted by the Queen's most Excellent Majesty,
l)y and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same,
as follows :

1. This Act may be cited for all purposes as " The ■''iiort title.
British North America Act, 1871."

2. The Parliament of Canada may from time to time Parliament of

,11.1 • • 1 •! • p • p Canada may

establish new provmces m any territories forming tor 08tai.ii»h new
the time being part of the Dominion of Canada, but pr'i"vX for"tho
not included in any province thereof, and may, at the ^"""'i'"''"."'
time of such establishment, make provision for the con-
stitution and administmtion of any such province, and
for the passing of laws for the peace, order, and good
government of such province, and for its representation
in the said Parliament.

3. The Parliament of Canada may from time to time, Aitonition of
with the consent of the Legislature of any province of vi'nces." ^'^"'
the said Dominion, increase, diminish, or otherwise alter

the limits of such province, upon such terms and con-

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23 WEST MAIN STREET

WEBSTER, N.Y. 14580

(716) 873-4503

'i'

800 35 & 36 VICT. c. 29.— LIM. ON POWEES OF CAN. [ 1 8T2

Parliament of
Canafla may
logislnto for
any territory
not included in
a province.

Confirmation of
Acts of Parlia-
ment of Ca-
nada.

32 & 33 Viet.
(Canadi.in)
cap. 3. 33 Viet.
(Canadian ,
cap. 3.

Lirr^itation of
powers of Par-
liament of
Canada to
legislate for an
established
province.

ditions as may be agreed to by the said Legislature, and
may, with the like consent, make provision respectiri"'
the effect and operation of any such increase or diminu-
tion or alteration of territory in relation to any province
afPected thereby.

4. The Parliament of Canada may from time to timo
make provision for the administration, peace, order, and
good government of any territory not for the time boino-
included in any province.

5. The following Acts passed by the said Parhamcnt
of Canada, and intituled respectively, —

" An Act for the temporary government of Rupert's

Land and the North Western Territory when

united with Canada;" and

" An Act to amend and continue the Act thirty-tAvo

and thirty-three Victoria, chapter three, and to

establish and provide for the government of the

province of Manitoba,"

shall be and be deemed to have been valid and effectual

for all purposes whatsoever from the date at Avhicli they

respectively received the assent, in the Queen's namo,

of the Governor-General of the said Dominion of Canada,

6. Except as provided by the third section of tlii,s
Act, it shall not be competent for the Parliament of
Canada to alter the provisions of the last-mentioned Act
of the said Parliament in so far as it relates to the
Province of Manitoba, or of any other Act hereafter
establishing new provinces in the said Dominion, subject
always to the right of the Legislature of the Provinct^
of Manitoba to alter from time to time the provisions of
any law respecting the qualification of electors and
members of the Legislative Assembly and to make laws
respecting elections in the said province.

35 & 36 VICT. (1872) c. 29.
Amended by 39 &40 VICT. c. 43., 50 &51 VICT. e. LT
An Act to amend the Act of the Session of the
twenty-eighth and twenty-ninth years of the

1872.] 35 & 36 VICT. c. 39.-~NATU3ALIZATION. 801

reign of Her present Majesty, chapter . hun-
dred {ind thirteen., intituled " An Act i autho-
rize the Payment of Retirin/ Pensions to
Colonial Governors."
This Act was amended by 39 & 40 Vict. c. 43 [Me of

Mm Act], and 50 & 61 Vict. c. 13. Part of preamble

repealed by S. L. R. Act, 1893 (No. 2), c. 54.

35 & 36 VICT. (1872) c. 39.

Preamble, and to " same as follows," repealed by
S. L. R. Act, 1893 (No. 2), c. 54. [^See ante, p. 764,
33 & 34 Vict. c. 14.]

An Act for amending the Law in certain cases in rela-
tion to NaturaHzation. [25^A July 1872.]

Tl ' HEIIEAS by a Convention between Her Majesty and the United
VV Utates of America, supplementary to the Convention of the thir-
teoiith (lay of May one thousand eight hundred and seventy, respecting
imtuializiition, and signed at Washington on the twenty-third day of
February one thousand eight huntlred and seventy-one, and a copy of
wliicli is contained in the schedule to this Act, provision is made in
relation to the renunciation by the citizens and subjects therein men-
tioned of naturalization or nationality in the presence of the officers
therein mentioned :

And whereas doubts are entertained whether such provisions are alto-
gether in accordance with the Naturalization Act, 1870 : And wiicreas
other doubts have arisen with respect to the effect of " The Naturaliza-
tion Act, 1870," on the rights of women married before the passing of
that Act ; and it is expedient to remove such doubts :

Be it emicted by the Queen's most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Commons,
in this present Parliament assembled, and by the authority of the same,
as follows :

1. This Act may be cited for all purposes as the Naturalization Act, Short title.
1872, and this Act and "The Naturalization Act, 1870," may be cited

togpthpr as " The Naturalization Acts, 1870 and 1872."

2. Any renunciation of naturalization or of nationality made in Confirniniiim
nianucr provided by the stvid supplementary Convention by the persons of renunc'i.ition
and under the circumstances in tlie said Convention in that behalf men- of ""iti'inali'v
tioned shall be valid to all intents, and shall be tleemed to be authorized yrntJon *^ """
by the said Naturalization Act, 1870. This section shall be deemed to

take pfFect from the date at which the said supplementnry Convention
took effect.

3. Nothing contained in " The Naturalization Act, 1870," shall i^iiving clauso
deprive any married woman of any estate or interest in real or personal '*** •" I'loperty
proix-rty to which she may have lieeome entitled ])reviously to the iwissing "' """'''"'d

•if that Act, or affect sncli estate or interest to her prejudice.

S 2840. 3 ID

.'Ml

'■tM$J>i*f *^'"*'' '*^"*'*"^ *

802

35 & 36 VICT. c. 39.— U.S. & ENG. CITIZENS. [1872.

SCHEDULE.

Convention between Her Majesty and the United States of America
supplementary to the Convention of May 13, 1870, respecting XatuiHli-
zation.

Signed at Washington, 2Srd February 1871.

[^Ratificatio7is exchanged at Washington, May 4, 1871.]

Whereas by the second article of the Convention between Her Miiipsty
the Queen of the United Kingdom of Great Britain and IreLind and
the United States of America for regulating the citizenship of subjcots
and citizens of the contracting parties who have emigrated or may
emigrate from the dominions of the one to tiiose of the otlier paitv
signed at London, on the 13th of May 1870, it was stipulated tliat the
manner in which the renunciation by such subjects and citizens of their
naturalization, and the resumption of their native allegiance, may Ic
made and publicly declared, should be agreed upon by the goxci-nniciits
of the resi)ective countries; Her Majesty the Queen of th(» United
Kingdom of Great Britain and /re/awrf and the President of the United
States of America, for the purpose of effecting such agicenient, Inuc
resolved to conclude a supplemental Convention, and have named as
their plenipotentiaries, that is to say ; Her Majesty the Queen of the
United Kingdom of Great Britain and Ireland, Sir Edward Tliornton,
Knight Commander of the Most Honourable Order of the Bath, oikI
Her Envoy Extraordinary and Minister Plenipotentiary to the Uniled
States of America; and the President of the United States of America,
Hamilton Fish, Secretary of State ; who have agreed as follows ;

Article I.

Any person being originally a citizen of the United States who had,
previously to May 13, 1870, been naturalized as a British subject, mav
at any time before August 10, 1872, and any British subject who, at the
date first aforesuid, had been naturalized as a citizen within the United
States, may at any time before May 12, 1872, publicly declare his renun-
ciation of such naturalization by subscribing an instrument in writing,
substantially in the form hereunto appended, md designated as Anuc.\ A.

Such renunciation by an original citizen of the United States, of
British nationality, shall, within the territories and jurisdiction of tiie
United States, be made in duplicate, in the presence of any couit
authorized by law for the time being to admit aliens to naturalization, or
before the clerk or prothonotary of any such court : if the (hiclarant l)e
beyond the territories of the United States, it shall be made in duplicate,
before any diplomatic or consular officer of the United States. One of
such duplicates shall remain of record in the custody of tlu; court or
officer in whose presence it was ma<^le ; the other shall be, without delay,
transmitted to the department of State.

Such renunciation, if declared by an original British subject, of his
acquired nationality as a citizen of the United States, shall, if the
declarant be in the United Kingdom of Great Britain and Ireland, be
made in duplicate, in the presence of a justice of the peace; if elsewhere
in Her Britannic Majesty's dominions, in triplicate, in the presence of
any judge of civil or criminal jurisdiction, of any justice of the peace,
or of any other officer for the time being authorized by law, in the place
in which the declarant is, to administer an oath for any judicial or other
legal purpose ; if out of Her Majesty's dominions, in triplicate, in the
presence of any officer in the diplomatic or consular serxice of Her
Majesty.

1872.] 35 & 3(J VICT. c. 45.— TEEATY OF WASHINGTON. 803

AnTICLE II.
Tlie contracting i^rties hereby engage to communicate each to the
other, from time to time, lists of the persons who, within their re.spective
dominions and territories, or before their diplomatic and consular officers,
linvp dec-vred their renunciation of naturalization, with the dates and
places of making such declarations, and such information as to the abode
of the declarants, and the times an(l places of their naturalization, as they
may have furnished.

ARTICr.E III.

The present Convention shall be ratified by Her Britannic Majesty,
and by the President of the United Stales by and with the advice and
consent of the Senate thereof, and the ratifications shall be exchanged at
Washington as soon as may be convenient.

ANNEX A.

I, A.B.,of [insert abode], Imag originally a citizen of the United
States of America [or a British subject], and having become naturalized
within the dominions of Her Britannic Majesty as a British subject [or
as a citizen within the United States fl/'^wjer/ca], do hereby renounce
my naturalization as a British subject [or citizen of the United States],
and declare that it is my desire to resume my nationality as a citizen of
the United States [or British subject],

{Signed) A. B.

JIade and subscribed before me . . . .in \_insert country or other
sub-division, and state province, colony, lei/ation or consulate] this. . .
dav of . . 18 .

{Signed) E. F., Justice of the Peace [or other title].

li i

L.S.

35 & 36 VICT. (1872) c. 45.

Preamble, and to "same, as follows" repealed by
S. L. R. Act, 1893 (No. 2), c. 54. See 38 & 39 Vict. c. 52.
An Act to carry into effect a Treaty between Her
Majesty and the United States of America.

[6th Aug. 1872.]

WHEREAS a treaty between Her IMajesty and the
United States of America was signed at Wash-
ington on the eighth day of IVIay one thousand eight
hundred and seventy-one, and was duly ratified on the
seventeenth day of June of that year, which, amongst
other things, contained the articles set out in the sche-
dule to this Act :

And whereas an Act intituled " An Act relating to
the Treaty of JVaahington, 1871," has been passed by

3 B 2

804 35 & 36 VIOT. c. 45.— TREATY OF WASHINGTON. [1872.

Suspension
of Acts at
variance with
articles.

Provision for
extension of
articles to
Newfoundland.

the Parliament of Canada for the purpose of carrviii"-
into operation the said articles :

And whereas an Act intituled " An Act relatiii"- to
the Treaty of Washington, 1871," has been passed by
the Legislature of Prince Edward's Island foi- tbe pur-
pose of carrying into operation the said articles :

And whereas the Congress of the United States of
America have not as yet passed any Act for carrying
into operation on the part of the United States the said
articles [but see 38 & 39 Vict. c. 52. Awarded sum
paid, and a balance of nearly 12,000^. paid into tlio
Bri. Ct. Ch. to await distribution] :

And whereas it is expedient to make provision by Act
of Parliament for carrying into operation the said articles :

Be it enacted by the Queen's most Excellent Majesty,
by and Avith the advice and consent of the Lords Spiritual
and Temporal, and Commons, in this present Parliament
assembled, and by the autho^-ity of the same, as follows :

1. As soon as the law re.^ dred to carry into operation,
on the part of the United States of America, the articles
set out in the schedule to this Act has been passed by
the Congress of the United States, and come into force,
all Acts of Parliament and laws which operate to pre-
vent the said articles from taking full effect shall, so far
as they so operate, be suspended and have no cfPcct
during the period mentioned in the article numbered
thirty-three in the schedule to this Act.

2. Wlienever the necessary laws have been passed by
the Legislature of Newfoundland and approved by Her
Majesty for carrying into operation the articles in the
schedide to this Act so far as they relate to Neicfound-
land, it shall be lawful for the oflBcer administering the
government of Newfoundland, at any time during the
suspension, in pursuance of this Act, of the above-men-
tioned Acts of Parliament and laws, by his proclamation,
to declare that, after a time fixed in such proclamation
for that purpose, this Act and the articles in the schedule
to this Act shall extend, and the same accordingly shall

1872,] 35 & 36 VICT. c. 45.— LIBERTIES TO FISHERMEN. 805

extend to Newfoundland, so far as they are applicable
thereto.

3. This Act may be cited as " The Treaty of Wash- short title,
iiigton Act, 1872."

SCHEDULE.

Articles of the Treaty of Washington of the 8th May 1871
which are referred to in the foregoing Act.

Akticle XVIII,

It is ugi'eed by the High Contrncting Parties that, in addition to the
lilKTty secured to the United States fishermen by the Convention
between Great Britain and the United States, signetl at London on the
20th iliiy of October 1818, of taking, curing, and drying fish on certain
feasts of the British North American colonies therein defined, the
inhabitants of the United States shall have, in common with the subjects
of Her Britannic Majesty, the liberty, for the term of years mentioned
ill Article XXXIII. of this treaty, to take fish of every kind, except
shellfish, on the sea coasts and shores, and in the bays, harbours, and
creeks of the provinces of Quebec, Nova Scotia, and New Brunswick,
and the colony of Prince Juiward's Island, and of the several i.slands
thereunto adjacent, without being restricted to any distance from the
shore, with permission to land upon the said coasts and shores and
islands, and a'so upon the Magdalen Islands, for the purpose of drying
their nets and curing their fish ; provided that, in so doing, they do not
interfere with the rights of private property, or with British fishermen,
iu the peaceable use of any part of the said coasts in their occupancy for
the same purpose.

It is understood that the above-mentioned liberty applies solely to the
sea fishery, and that the salmon and shail fisheries, and all other fisheries
in rivers and the mouths of rivers, are hereby reserved exclusive/y for
British fishermen.

Akticle XIX.

It is agreed by the High Contracting Parties that British subjects
shall have, in common with the citizens of the United States, the liberty,
for the tei-m of years mentioned in Article XXXIII. of this treaty, to
take fish of e^ery kind, except shell-fish, on the eiistern sea-coasts and
shores of the United States north of the thirty-ninth parallel of north
latitude, and on the shores of the several islands thereunto adjacent,
and in the bays, harbours, and creeks of the said sea-coasts and shores
of the United States and of the said islands, without being restricted to
any distance from the shore, with permission to land upon the said
coasts of the United Stales and of the islands aforesaid, for the purpose
of drying their nets and curing their fish ; provided that, in so doing,
they do not interfere with the rights of private property, or with the
fishermen of the United States, in the peaceable use of any part of the
said coasts in their occupancy for the same purpose.

It is understood that the above-mentioned liberty applies solely to the
sea fishery, and that salmon and shad fisheries, and all other fisheries,
in rivers and mouth of rivers are hereby reserved exclusively for fisher-
men of the United States.

Article XX.

It is agreed that the places designated by the Commissioners appointed
under the first article of the Tx-eaty between Great Britain and the

806 35 & 36 VTCT. e. 45.— PRIVILEGES TO U.S.'s CITS. [1H72.

United States, coucliuled at IfVushinytvn on X\w otli of Juno 1851, iipon
the coasts of Her Britannic Majesty's dominions and the Uuited States
or places reserved from the common right of ''shing under that ticntv
shall be regarded as in like manner reserved from the <toinuioii ri"ht of
lishing under the jn-cjeding articles. In case any (luestion should miw
between the Governments of Iler Britannic Majesty and of the I'nilviJ
States wa io the common right of fishing, in ])laces not timsdesigniitcd us
reserved, it is agreed that a Commission shall be appointed to (li'si'rnatc
such places, and shall be constituted in the .same maimer, and Imxc tlic
same powers, duties, and authority as the Commission aiipointed under
the baid first Article of the Treaty of the 5th of June 1854.

Article XXI.

It is agreed that, for the term of years mentioned in Article XXXIII.
of this Treaty, fish oil and fish of all kinds (except fish of tlie inliiiid
lakes, and of the rivers falling into them, and except fish preseivod in
oil), i)eing the ])roduce of the fisheries of the Dominion of Canada, or oi
.Prince Edtvard's Island, or of the United States, shall be admitted into
each country, respectively, free of duty.

Article XXII.

Inasmuch as it is asserted by the Government of Her Brituiuiii'
Majesty that the privileges accorded to the citizens of the United Stales
under Article XVIII. of this Treaty are of greater value than tbosi'
accorded by Articles XIX. and XXI. of this Treaty to the subjects of
Her Britannic Majesty, and this assertion is not admitted by the (iovcni-
ment of the United States ; it is further agreed that Conmiissidm is
shall be appointed to determine, having regard to the privileges iucokIciI
by the United States to the subjects of Her Britannic Majesty, iis stntcd
in Articles XIX. and XXI. of this Treaty, the amount of any coniiicn-
pensation which, in their opinion, ought to be paid by the Govcniimiit
of the United States to the Government of Her Britannic Mnjt'sty in
return for the privileges accorded to the citizens of the United Siaten
under Article XVIII. of this Treaty; and that any sum of nioniv
■which the said Commissioners may so award shall be paid by the United
States Government, in a gross sum, within twelve months after sndi
award shall have been given.

Article XXIII.

The Commissioners referred to in the preceding Article shall be
appointed in the following manner, that is to say : one Comuils.sioiier
shall be named by Her Britannic Majesty, one by the President of the
United States, and a third by Her Britannic Majesty and the Piesident
of the United States conjointly ; and in case the third Coumiissiouer
shall not have been so named within a period of three months from the
date when this Article shall take effect, then the third Couunissioner
shall be named by the Representative at London of His Majesty tiie
Emperor of Austria and King of Hungary. In case of tlic death,
absence, or incapacity of any Comnnssioner, or in the event of any
Commissioner omitting or ceasing to act, the vacancy shall be filled iu
the manner herein-bei'ore provided for making the original appointment,
the period of three months in case of such substitution being calculated
from the date of the happening of the vacancy.

The Commissioners so named shall meet in the City of Halifn.v, in the
Province of Xova Scotia, at the earliest convenient period after they have
been respectively named, and shall, before proceeding to any business,

im.] 35 & 30 VICT. c. 45.— TRADING RIGHTS.

807

umkf ami subscribe a solemn dtiolarutioii that they will iinpartinlly and
carefully examine and decide the matters referred to them to the best of
tlipir jutlguient, and aeeording to justice and equity ; and such declaration
shall i)e entered on the record of their proceedings.

Each of the High Contracting l^arties shall also name one person to
iittpnd the Commission as its Agent, to rejjresent it generally in all matters
cwnected with the Commission.

Article XXIV.

The proceedings shall be conducted in such order as the Commis-
jiioners appointed under Articles XXII. and XXIII. of tl is Treaty
sliiili determine. They shall l)e bound to receive snch oral or written
testimony as either Government may present. If either Party shall
offer oral testimony, the other Party shall have the right of cross-
exaniimition, luuler such rules as the Commissioners shall prescribe.

If in the case submitted to the Commissioners either Party shall have
specified or alluded to any report or docinnent in its own exclusive pos-
session, without annexing a copy, such Party shall be bound, if the other
Party thinks proper to apply for it, to furnish that Party with u copy
thereof ; and either Party may call upon the other, through the Com-
iiiissioners, to produce the originals or certified copies of any papers
adduced as evidence, giving in each instance such reasonable notice as
tlie Conunisiouers may reqnire.

The casie on either side shall be closed within a period of six months
from the <late of the organization of the Commission, and the Commis-
sioners shall be requested to give their award as soon as possible there-
after. The aforesaid period of six months may be extended for three
montb.s in case of a vacancy occurring among the Commissioners under
the circumstances contemplateil in Article XXIII. of this Treaty.

Abticlk XXV.

The Commissioners shall keep an accurate record and connect minutes
or notes of all their proceedings, with the dates thereof, and may
appoint and employ a Secretary and any other necessary officer or
officers to assist them in the transaction of the business which may
come before them.

Each of the High Contracting Parties shall pay its own Commissioner
and Agent or Counsel; all other expenses shall be defrayed by the
two Governments in equal moieties.

Article XXX.

It is agreed that, for the term of years mentioned in Article XXXIIl.
of this Treaty, subjects of Her Britannic Majesty may curry in British
vessels, without payment of duty, goods, wares, or merchandize from
one port or place within the territory of the United States upon the St.
LawTence, the Great Lakes, and the rivers connecting the stime, to
another port or place within the territory of the United States as afore-
siud ; Provided that a portion of such transportation is made through
the Douiiuion of Canada by land carriage and in bond, under such rules
and regulations as may be agreed upon between the Government of Her
Britannic Majesty and the Government of the United States.

Citizens of the United States may for the like period carry in United
States vessels, without payment of duty, goods, wares, or merchandize
from one port or place within the Possessions of Her Britannic
Majesty in North America, to anolhei port or place within the said
Possessions j Provided that a portion of such transportation is made

■i«

i( :

, -■ 1
■1

; ! ■

; , t

808 35 & 3G VICT. c. 45.— EXPORT DUTY ON LUMBKK. 1 1872,

through the territory of the United States by Innd carriage and in
bond, under such rnleH and regidations ns may be agreed upon between
the Government of Her Britannic Majesty and tlie Uovenunent ol tlm
United States.

The Government of the United States further engages not to imimse
any export duties on goods, wares, or merchandize earried under this
Article through the territory of the United States ; and Her Abijestv's
Government engages to urge the Parliament of the Dominion of Caiiada
and the Legislatures of the other Colonies not to impose any export
duties on goods, wares, or merchandize earried under this Aiticle ; mid
the Government of the United States may, in case sueli e.\])ort duties
are imposed by the Dominion of Canada, suspend, during tlu> period timt
such duties are imposed, the right ol' carrying granted luider this Aitiele
in favour of the subjects of Her Britunnic Majesty.

The Government of the United States may suspend the right of
carrying granted in favour of the subjects of Her Britannic Majesty
under this Article, in case the Dominion of Canada should at any tiiiu!
deprive the citizens of the United States of the u.se of tlie canals in tlie
said Dominion on terms of equality with the inhabit4ints of the Do-
minion, as provided in Article XXVII.

Article XXXI.

The Go\ernment of Her Britannic Majesty further engages to uiop
upon the Parliament of the Dominion of Canada, and the Legishituic
of New Brunswick, that no export duty, or other duty, shall l)e levied
on lumber or timber of any kind cut on that portion of the Anieiieim
territory in the State of Maine watered by the river St. JoJin iind its
tributarie.s, and floated down that river to the sea, when the sniiie is
shipjied to the United States from the province of Xcw Jlnnisnicli.
And, in case any such export or other duty continues to be levied nfiei'
the expiration of one year from the date of the exch,;ng(^ of the ratili-
cations of this Treaty, it is agreed that the Government of the riiitrd
States may su.spend the right of carrying herein-before granted niider
Article XXX. of this Treaty, for such period as such export or (jtliei'
duty may be levied.

Akticle XXXll.

It is further agreed that the provisions anil stipulations of Artielos
XVIII. to XXV. of this Treaty, inclusive, shall extend to the Colony
of Newfoundland, so far as they are applicable. But if the Inipeiiiil
Parliament, the Legislature of Newfoundland, or tlu; Congress of the
TTnited States »\ia\\ not embrace the Colony of Newfoundland mXXww
laws enacted for carrying the foregoing Articles into effect, then tliis
Article shall be of no effect, but the omission to make provision by law to
give it effect, by either of the Legislative Bodies afore.sjiid, .shall not in
'.ny way impair any other Articles of this Treaty.

Article XXXIII.

The foregoing Articles XVIII. to XXV. inclusive, and Article XXX,
of this Treaty, shall take effect as soon as the laws required to carry
them into operation shall have been passed by the Imperial Parliament
of Great Britain, by the Parliament of Canada, and by the Legislature
of Frince Edward's Island on the one hand, and by the Congress of the
United States on the other. Such assent having been given, the said
Articles shall remain in force for the period of ten years from the date at
which they may come iuto operation, and further, until the expiration of

1873,] 36 & 37 VICT. c. 15.— PUBLIC WORKS LOAN. 809

two years after cither of the High Contriictiiig Piirties shall have given
notice to the ntlier of its wish to torininiite the same ; each of the High
Coutructing Parties being at liberty to give .such notice to the other at
the cud of the .said period of ten years or at any time afterwards.

36 & 37 VICT. (1873) c. 15.

Sec. 9 repealed by S. L. R. Act, 1883. In the Title,
the words " Commissioners of Her Majesty's," and
from "and to repeal," to end of title; Preamble,
and to " same as follows " repealed by S. L. R. Act,

1893 (No. 2), c. 54.

An Act to authorise the Commissioners of Her Majesty's
Treasury to guarantee the payment of a loan to be
raised by the Government of Canada for the con-
struction of public works in that country, and to
repeal the Canada Defences Loan Act, 1870.

[21s/ J}(li/ 1873.]

WHEREAS one of the terms and conditions on wliieh the colony
of British Columbia was admitted into union with the Dominion
oi Canada, by an order in Council of the I6th day of May 1871, was
that the Government of the Dominion should secure the construction of
a railway) (in this Ac^ referred to as the Pacific Railway) to connect the
scaboar(i of British Columbia with the Railway system of Canada, in
maunur more particularly mentioned in the schedules to such Order :

And whereas the Govei-nment of the Dominion of Canada propose to
laisc l)y way of loan for the purpose of the construction of the Pacific
Waihviiy, and also for the improvement and enlargement of the Canadian
cauals, a smn of money not exceeding eight million pounds :

And whereas by an Act of the Parliament of Canada oi the year 18G8,
chapter forty-one, the Governor in Council was authorised to raise by
way of loan upon the guarantee of the Commissioners of Her Majesty's
Treasury (in this Act referred to as "the Treasury"), for the purpose
of the construction of the fortifiwitions therein mentioned, sums not
exceeding one million one hundred thousand pounds :

And whereas by the Canada Defences Loan Act, 1870, the Treasury 33 & 34 vict.
were authorised to guarantee the payment, of the principal of such loan c. 82.
and of interest thereon at a rate not exceeding four per cent. :

And whereas no portion of the last-mentioned loan has been raised,
and no such guarantee has been given :

And whereas it is expedient to authorise the Treasury to guarantee
a portion, not exceeding two millions five hundred thousand pounds, of
snch loan of eight million pounds for the above-mentioned purposes, and
to gnarnntee a further portion of the said loan not exceeding one million
one hundred thousand pounds in substitution for a guarantee of a loan
under the Canada Defences Loan Act, 1870:

Be it therefore enacted by the Queen's most Excellent Majesty, by
and with the advice and consent of the Lords Spiritual and Temporal,

810 30 & 37 VICT. c. 45.— PUBLIC WORKS LOAN.

[1H73.

Short title.

Power tn Trea-
sury to gimriui-
too luun.

O'DiulitioiiH of
guiiruntte.

Application of
sinking fund.

niid Commons, in tl'.is picsciit lWliar.H'nt iiHscmhK'd, und liy flic aiitho-
rity of Iho .sauio, us follows :

1. Thi.s Act may be cited as " The Canada (Public Works) Loim
Act," 1 873."

2. riic Treasury may jfuarantce, in such manner and lorn iind o:,
such conditions as thoy think fit, the nayment of the i)rinci|)al of inid
interest (at a rate not exceedinj; foiu- per cent, per annum) on all or any
[)art of any loan raised by tlu- Government of Canada iuv llie |)iir|i(jM.
of tho consti'uction of the I'aciiie llailway, and the iniprovcmciit mid
enlargement of tho Canadian canals, .so that the total amount so jruii-
rantee<l from time to time do not exceed three million six huudivd
thonsand pounds.

3. Tlie Treasury .shall not give any guarantee under this Act unless
and until provision is made by an Act of tho Parliament of Canada or
otherwise to tho satisfaction of the Treasiuy —

(1.) For raising and appropriating the said proposed loan of eif;lit

million pounds :
(2.) For charging the consolitlated revenue fuiul of Canada with
the payment of the principal ann interest of any Innn j;ua-
ranteed by the Treasiu-y under this Act, immediately after
the charge of the loan for fortifications created by tiie said
Act of the Parliament of Canada of th(! year one tlioiistuul
eight hundred and sixty-fnght, chapter forty-one :
(3.) For ])ayment by the Government of Canada of a sinkiii}; fund
at the rate of one per cent, per aninim on the entire aiuouiit
of the loan guaranteed by the Treasury under this Act, ami
for charging the consolidated revenue fund of Canada witli
the payment of such sinking fund immediately after tliepiin-
cipal and interest of the last-mentioned loan ;
(4.) For charging the consolidated revenue fund of Canadamih
any sum issued out of the Consolidated Fund of the United
Kingdom under this Act with interest thereon at the rate
of five [jer cent, per annum, immediately after the stiid
sinking fund :
(5.) For the due payment and application of the money raised by
any loan guaranteed by the Treasury under this Act, in
such manner as the Treasury from time to time direct :
(6.) For remitting to the Treasury the annual sums for the sinking
fund by equal half-yearly payments, in such manner as they
from time to time direct, and for the investment and accu-
mulation thereof under their direction in the names of four
trustees nominated from time to time, two by the Treasury
and two by the Government of Canada.
The Treasury may guarantee the loan in such portions as they think
fit, and, before guaranteeing any portion of the loan after the first, shall
satisfy themselves that the portion of the loan previously guaranteed
(or an equal amount of any other loan of the Government of Canada),
together with an equal amount of that portion of the said loan oi: eight
million pounds which is not guaranteed by the Treasury, has been or is
in the course of being spent for the purposes mentioned in this Act.

4. The said sinking fund may be invested only in such securities as
the Government of Canada and the Treasury from time to time agree
upon, and shall, whether invested or not, be applied from time to time,
under the direction of the Treasury, in discharging the princi])nl of the
loan guaranteed by the Treasury under this Act, and the interest arising

1874.]

37 & 38 VICT. c. 20.— CAN. BONDS.

811

liuiu f*tiL'li si'ciiritit's (iiu'liidiiifj tlio inti'ivst in'criiiii}^ in rt'spcft ol' any
part of liny Itmu disclmr^^tMl by moiiuw of tho Minkiii}^ fund), iind tho
ivsiiltin;; ini'omo tlu-riiuf Hindi 1>« invested and iipplicd as part of nucIi
Mnkinn fund.

6, Evi ry Act passed by the Pailiamont of Canada whicdi in any way
iiiiniiiis the priority of tins chargo npon the consolidated revenue fund of
r(//irt^/« created by that Parliament of tlu! loan guarantccnl under this
Alt, mid the interest and Minkin>r fund thereof, and tho sums paid out of
the I'diisolidated Fund of the United Kingdom and the interest thef-jn,
slmll, so I'ur only as it impairs such pi-iority, be void, uidess such Act has
k't'U reserved for the siguilication of' Her Majesty's pleasure.

0, 'J'he Treasury are hereby authorised to cause to be issued from
time to time, out of the growing produce of the Consolidated Funil of
ihc United Kingdom, such sums of money as nuiy at any time be
required to be paid to fulfil the guarantee under this Act in respect
litlitT of principal or interest.

7, The Treasury may from time to time certify to one; of Her
Majesty's Principal Secretaries of State tho amonnt whi(!li has been
piiid out of the Consolidated Fund of the LJniteil Kingdom t'> fulfil the
j;iuiiiuitee under this Act, and the date of such payment ; such . i itilicale
shall hoeoinmuniented to the Oovernor of Canada, and shall be conclusive
evidence of the amount having been so paid and of the tim( when tho
sime wai so paid.

8. The Treasury shall cause to be prepared and Imd before hot';
llonsos t' "^ I'liament a statement of any gimrantie givcm un '>'• this
Aet, and an account of all sums issued «ut of the Cons()lidati'd Fund of
t'le United Kingdom for the purposes of this Act, within one month
;ilter the same are so given or issued, if Parliament be then sitting, or
if ParliauKMit bo not sitting, then within fourteen days after tho then
ue.\t meeting of Parliament.

9. The Canada Defences Loan Act, 1870, is hereby repealed.

37 & 38 VICT. (1871) c. 20.
Sec. 4j amended by 43 & 4i4< Vict. c. 20. s. 54, and by
15 & 46 Vict. c. 72. s. 17.

An Act to make provision respecting the Stamp Duty
on Transfers of Stock of the Government of Canada.

\3Qth June 1874.]

WHEREAS certain stock of the Government of Canada, known
by the name of Cana<lian consolidated five per cent, stock, and
bereiu-after referred to as existing Canadian stock, is inscribed in books
kept in the United Kingdom, and it is expedient to reduce the stimip
duty i)ayable on the transfer of such stock and of other stock of the
siime (iovcrnment which may hereafter bo so inscribed, and to enable
the Government of Canada to compound for the stamp duty on such
transfers :

Be it enacted by the Queen's most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Commons,
in this present Parliament assembled, and by the authority of the same,
as follows :

1, This Act may be cited as " The Canadian Stock Stamp Act, 1874."

AlleratlDU (if
,Vet riliitinn to
giiiivniitiTd
luan.

IhSUC (lUt of

Consolidiitcil
Fund.

Certitirtitc of
nniount |)iiid
out of Consul i-
drtted Fund.

accounts to
bo laid bi'foi'o
Parliament.

Eejical of
33 & 34 Vict.
c. 82.

I i »

li I

T I

Short title.

812 37 & 38 c. 26., 40 & 41 VICT. c. 59.— BONDS, &c. [I874-7

Stamp duty on
Canndiiin in-
scribed stock.

Composition
for stamp ou
transfers of
existing stock.

Composition
for stjinip on
transfers of
future stock.

2. In lieu of the stamp duty payable on the transfer of stoik of tlic
Government of Canada inscribed in books kept in the ITnited Kiiii-flom
there shall be charged on every transfer of such stock, whether on s)ii('
or otherwise, a stamp duty of two shillings and sixpence for every full
sum of one hundred pounds, and also for any fractional part of one
hundred pounds, of the nominal amount of stock transferred.

3. By way of composition for stamp duty chargeable on transfers of
existing Canadian stock, the Government of Canada may pay to the
Commissioners of Inland Revenue the sum of three thousand six Imn-
dred and ninety-one pounds two shillings and sixpence, and from and
after such payment transfers of such stock shall be exempted from stamp
duty.

4. By way of composition for stamp duty chargeable on transfers of
any stock of the Government of Canada which may be hereafter inscribed
in books kept in the United Kingdom, the Government of Canada mny
pay to the Commissioners of Inland Revenue a sum calculated at the
rate of seven shillings and sixpence for every full sum of one hundrrd
pounds, and also for every fractional part of one hundred poimds of
stock inscribed in the name of each holder, and from and after siiih
payment transfers of such stock shall be exempted from stamp (luty.(i)

1 See 40 & 41 Vict. c. 59. below.
And for the amendment of these
Acts, sec. 54 of 43 & 44 Vict.

c. 20., and sec. 17 of 45 & 4(5
Vict. c. 72. also given below,
pp. 818, 819.

The follo\^ ing Acts are given here for conveiiieiice :—

40 & 41 VICT. (1877) c. 59.

The words, " Commissioners of Her Majesty's;,"
wherever they occur in sees. 1, 19, and 20 ; sec. 26
from "The Act of the Session " to " 1835." Ik-pealcd
hy S. L. E. Act, 1894, 57 & 58 Vict. c. 56.

RegLstration by
colony ■with
Commisioners
of Inland Re-
venue of colo-

An Act to amend the Law with respect to the Trans-
fer of Stock forming part of the Public Tebt of any
Colony, and the Stamp Duty on such Transfer.

[Uth Aug. 1877.]

BE it enacted by the Queen's most Excellent Majesty, by and with
the advice anil consent of the Lords Spiritual and Temporal, uiid
Common's in this present Parliament assembled, and by the uuthority of
the game, as follows :

Application of Act.

1. Where provision has been made by the legislature of a colony mid
otherwise for the inscription and transfer in a register kept in tlii'
itnited Kingdom by some bank, colonial officer, or person (whieh bank,
officer, or person is in this Act referred to as the registrar) of any stock

avemcjice :—

1874-7] 37 A 38 c. 26., 40 & 41 VICT. c. 59.— BONDS, &c. 813

forming the whole or part of the public debt of such colony, and the ninl 8tock to
(Jovernment of such colony cause a declaration under the seal of such ^li'J'h this Act
colony, or by some person in that behalf authorised under that seal, "P'' "'^'
stating such provision, and identifying the stock with respect to which
it has been made, to be left with the Commissioners of Inland Revenue,
those Commissioners, upon payment of the proper fee, shall record the
same ; and such record and declaration shall be open to inspection at all
reasonable times, in manner directed by the said Commissioners, upon
layment of the proper fee.

Upon such declaration being recorded, this Act shall apply to the
stock specified in the declaration, and this Act shall not apply to any
colonial stock not specified in a declaration recorded as provided by this
section.

The proper fee for the purposes of this section shall be such fee not
exceeding, in the case of recording a declaration, five pounds, and in
the case of inspection five shillings, as the Commissioners of Her
Majesty's Treasury from time to time fi.x, and shall be paid into the
Exchequer.

Stamp Duty on Colonial Stock to which this Act applies.

2. On the transfer in the register, whether on sale or otherwise, of Stamp duty on
colonial stock to which this Act applies, there shall Iw charged in lieu of ^J^''.'" which
nnv other stamp duty, a stamp duty of two shillings and sixpence for pjjgj, '^ ^^'
pviry full sum of one hundred pounds, and also for every fnvction less

tliaii one hundred pounds, or over and above one hundred pounds or
a multiple of one hundred pounds, of the nominal amount of stock
transferred :

Provided that a transfer made for effecting the appointment of a new
trustee sliiiU not be charged with any higher duty than t«n shillings.

3. Upon payment to the Commissioners of Inland Revenue by tlie Composition

government of a colony by way of composition for the stamp duty on f'''" stamp duty

the transfer of the stock of that colon v to which this Act applies, of °" triinsfer of
, .,,. J . .. p •,, p 1111 stock to which

seven shiUuigs and sixpence lor every lull sum or one hundred pounds, jj^j^ ^^j

ami for every fraction less than one hundred pounds, or over anil above plies,
one hundred pounds or a multiple of one hundred pounds, of the nominal
amount of such stock inscribed in the name of each and every stock-
holder, tmnsfers of the stock in respect of which such composition has
lieen paid shall be exempt from stamp duty.

The registrar shall from time to time give to the Commissioners of
Inland Revenue such information as they may reqiure resi)ecting the
stock of any colony inscribed in the register kept by him.

Transfers and Dividends.

4. Colonial stock to which this Act applies, while inscribed in a Transfer of
register kept in the United Kingdom, shall be transferred as follows : colonial stock

(1.) The transfer shall Ik, ma<le only in the register, and shall he ^ which this
signed by the transferor, — or, if he is absent, by his attorney '^ ^^^ ^^^'
thereunto lawfully authorised by some writing executed under
his hand and seal and attested :

(2.) The transferee may, if he thinks fit, underwrite his acceptance of
the transfer :

(3.) The executors or admmistrators of a deceased stockholder shall
alone be recognised by the registrar as having any title to the
stock or any dividend thereon : .

i- ;

■i

814 37 & 38 c. 26., 40 & 41 VICT. c. 59.— BEARER CERTS. [1H74-7.

(4.) The person becoming entitled to any stock or dividend thereon in
consequence of the death, bankruptcy, or marriage of the stock-
holder, or of any devohition in law from the stockholder or
otherwise than by transfer of the stock, shall produce such evi-
dence of his title as may be reasonably required by the lewis-
trar, but the person so becoming entitled to anv stock mnv
transfer such stock to another person without being registered
himself.

Closing of 5. The registrar may, for such period not exceeding fourteen days iis

dividend. any colonial stock to which this Act applies, close the register of that

stock as regards transfers, upon giving not less than seven (hiys' notice

of such closing by advertisement in some newspaper circulating generallv

in tlie place where the register is kept.

The persons who on the day of such closing are inscribed us stock-
holders shall OS between them and their transferees of colonial .stock be
entitled to the dividend then next payable thereon.

Dividends in 6. Where colonial stock to which this Act applies is standing in the

case of infancy, name of an infant or person of unsound mind jointly with any person

&c. of a joint not under legal disability, a letter of attorney for the receipt of the

stockholder. dividends on the stock shall be sutficient authority in that ])ehalf if given

under the hand and seal of the person not under disability, and attested.

The registrar, before acting on the letter of attorney, may r(;quire

proof to his satisfaction of the alleged infancy or imsoundness of mind

by the declaration of competent persons made under the Statut()r\

5 & 6 Will. 4. Declarations Act, 1835, or in such other manner as he may reasonahiy

c. 62. require.

Stock Certificates to Bearer.

Stock certifl- 7. The registrar, if so authorised by the government of a colony

eate to bearer, issuing stock to which this Act applies, shall on application and payment
of the fees and stamp dtity, if any, cliargeablo in respect of the certificate,
grant to a stockholder a certifi'^ate (in this Act called a stock certificate
to bearer) which shall entitle the bearer to the stock therein described,
and shall be tran.sferable by delivery.

There shall be attached to sucli certificate coupons entitling the bearer
of or person named in the coupons to the dividends on the stock for ii
limited period.

Any stock in respect of which a stock certificate to bearc has been so
issued shall, so long as such certificate is outstanding, cea.'.c to ')(> dealt
with through the medium of the register.

A coupon so issued shall be deemed to be a cheque on t banker within
the meaning of any law or enactment for the time beinf, in force relatinn;
to cheques other than any enactment relating to stamp duties.

Stamp duty on 8. Where a composition has not been paid in respect of th(> stamp
stock certificate duty chargeable on the transfer of any stock to whir'h this Act api)lies, a
to bearer. stock certificate to bearer issuetl in respect of that .stock shall be clanged

with a stamp duty of two shillings and sixpence for every full snm of
one hundred pounds, and also for every fraction less than one hundred
pounds, or over and above one hundred pounds or a multiple of one
hundred pounds, of the nominal amount of stock described in such
certificate.

Renewal of 9. On the expiration of the period for which the coupons attached to

coupons or a stock certificate to bearer have been issued under this Act, the
certificntc. certificate may be exchanged for another certificate with coupons for n

5RTS. [1874-7.

of stock in
certificate to
bearer.

Conversion of
stock certificate
to bearer into
nominal certifi-
cate.

1874-7] 37 & 38 c. 26., 40 & 41 VICT. c. 59.— BOND REG. 815

further period : Provided, that the certificate i-ssued in exchange, if the
stamp duty has not been compounded, shall be duly stamped, but in
such caso the Commissioners of Inland Revenue shall on production to
them of both certificates duly stamped, and subject to such regulations
as thpy may from time to time make, grant allor/ance for the stamp on
the former certificate.

10. On delivery to the registrar of a stock certificate to bearer issued Conversion into
under this Act, and of all unpaid coupons belonging thereto, the nominal stock
registrar .sliall enter the bearer in the register as proprietor of the stock
described in the certificate, and thereupon that stock shall become
transferable and the dividends thereon payable ns if no stock certificate
to bearer had been issued in respect of that stock.

11. If the bearer of a stock certificate to bearer issued under this Act
insert therein the name, address, and (juality of some person, such
certificfitfl shall cease to be transferable, and the person so named, or
some person deriving title from him by devolution in law, shall alone be
recognised by the registrar as entitled to the stock described in the
certificate, and shall be entitled to be entered in the register as proprietor
of tliat stock in like manner as if he were the bearer of a stock certificate
to bearer, but if deriving his title by devolution in law he shall produce
such evidence of his title as the registrar may reasonably require.

12. A trustee shall not apply for or hold a stock certificate to bearer Trustee not to
issued under this Act, unless expressly authorised to do so by the terms *PP|y ^or stock
of his trust. But this provision shall not impose on the registrar an certificate to
obligation to inquire whether a person applying for a stock certificate to

hearer is or is not a trustee, or subject the registrar to any liability in
the event of his issuing a stock certificate to bearer to a trustee, or
invaliih'.to any stock certificate to bearer issued.

13. If any stock certificate to bearer issued under this Act is lost. Loss of stock
mishiid, or destroyed, the registrar shall, on such indemnity being given certificate to
as he may reasonably require, and on payment of the expense of the Nearer,
issue, issue a fresh stock certificate to bearer in the place of the

certificiite so lost, mislaid, or destroyed.

14. Stock described in a stock certificate to bearer issued under this Stock in cert-"-
Aet shall, save as relates to the mode of transfer and payment of divi- cate to bearer
(lends, be subject to the same incidents in all respects as if it had
continued to be transferable in the register.

to have inci-
dents of other
stock, except a.s
to transfer, &c.

15. No notice of any trust in respect of any colonial stock, or of any Notice of trust,
certificate thereof, or of any coupon annexed to such certificate, shall be

entered in the register or receivable by the registrar or by the govern-
ment of the colony.

16. The registrar may, before the inscription of any stock, make with Entry in re-
resiHict to the transfer of such stock, or otherwise in relation to such gistor of con-
stock, reasonable regulations not inconsistent with the provisions of this <^'*'o"8 ."■id
j^g^ regulations.

A printed copy of the documents containing the authority for and
conditions of the issue of stock to which this Act applies, a ad of all
regulations with respect to the transfer of gnch stock or otherwise iu
relation to such stock, shall be entered in the register of the stock.

Information to
be given re-
specting regis-
ter.

816 37 & 38 c. 26., 40 & 41 VICT. c. 59.— BOND RlilG. [1874-7.

17. The register kept in pursuance of this Act shall on its mere
production from the custody of the registrar be evidence of all matters
entered therein, and, as regards persons entered therein as proijijctois of
colo'iial stock to which this Act applies, of the title of those pi'isons to
to that stock.

18. The registrar shall keep in a separate book a list of the stock-
holders on whose stock the dividends have been unclaimed for ten years
together with their registered twldresses and description, and such list
shall be open for inspection at the ustial hours of transfer tipon payment
of such fee, not exceeding two shillings and sixpence, as may bo fixed bv
the regulations.

The registrar shall give within a reasonable time after application a
certificate stating the following particulars in relation to any colonial
stock of which he is registrar, or any part of such stock, or such of those
jjarticulars as may be required by the applicant, namely, —

(a.) The total amount issued by the colony, and the total in.scribed in

the register; and
(6.) The total number of the persons in whose names the stock or part is
originally inscribed, or after the register of such stock or part
has been once closed as regards transfers, the total number of
the stockholders at the last preceding date at which the
transfer books were closed ; and
(c.) The total number of each class of persons in whose names the
stock or part is originally inscriliod, or after the register of tlie
stock or part has been once closed as regards transfers of eiuii
class of stockholders at the last preceding date at wliicli tlio
transfer books were closed, the classification being accordini'
to the amount held, omitting fractions of two hundred pounds;
and
(rf.) A copy or extract certified by the registrar or by some officer
• appointed for the purpose to be a true copy or extract of anv

conditions or regulations required by this Act to be enteriil
in the register.
Provided that the registrar shall not be required to give any such cer-
tificate in relation to any colonial stock, or part of such stock, until after
the expiration of one month after the stock or part of the stock to which
the certificate relates has been inscril)ed.

Within a reasonable time after the application of any person who is n
stockholder of any colonial stock to which this Act applies, the registrar
shall give him a list of the registered names and addresses of tlu' stock-
holders of such stock at the last preceding ilate at whicii the register
was closed as regards transfers.

The registrar before giving a certificate or list under this section may
require payment of sucli fee not exceeding five shillings and a further
sum of twopence for every folio of seventy-two wortls, or in tlu' case of
a list of names and addresses of sixpence for each name and address, as
the registrar may from time to time fix.

Any ("irtificate or li.st given nn<ler this section shall be admissiijle ia
evidence.

Miscellaneous.

Particulars to 19. The declaration respecting colonial stock to which tliis Act
be contained in applies, recorded with the Commissioners of Inland Revenue, tiud the
prospectus, document containing the conditions of the issue of the stock, and every
ce 1 ca es, c. ppQ^j^p^ug ^nd notice inviting persons to subscribe for or take the stock,
and every stock certificate to bearer, and every coupon and divideaii

1874-7.] 37 & 38 c. 26., 40 & 41 VICT. c. 69.— REG. IN ENG. 817

! total inscribed i

II be ii([inissii)lo in

warrant and every other certificate and document issued to a stockholder
in relation to stock held by him, shall state that the revenues of the
colony alone are liable in respect of the stock and the dividends thereou,
and that the Consolidated Fund of the United Kingdom and the Commis-
sioners of her Majt Ay'a Treasury are not directly or indirectly liable or
responsible for the payment of the stock or of the dividends thereon,
or for any matter relating thereto, and if the Commissioners of Her
Majesty's Treasury require the statement to be made in any particular
terms, those terms shall be ado[)ted.

A declaration not in conformity with this section shall not be recorded,
and every person publishing or issuing or entering in the register any
such document, prospectus, notice, stock certificate, coupon, warrant,
certifiente or document as aforesaid not in conformity with this section
sliall be liable to a penalty not exceeding fifty pounds.

20. I" 'I'ly legal proceeding in a court in the United Kingdom in Jurisdiction of
relation to the register of colonial stock to which this Act applies, or to courts as to
an entry in or omission from such register, or to a right or title to or coloniul stock,
interest in any such colonial stock, or any dividend thereon, the juris-
diction of such court shall not be objected to on the ground only that
the registrar is the agent of a colonial government, and the registrar,
whether a party or not to such proceeding, shall comply with any order
made by such court in relation to the matters aforesaid.

Any person claiming to he interested in colonial stock to which this
Act applies, or in any dividend thereon, may present a petition of right
in England in relation to such stock or dividend, and the like pro-
ceedings may be had upon such petition as in the CJise of any other
l)Ptition of right, subject to this qualification, that the certificate of the
judgment, decree, rule, or order of the court may be left with the
registrar instead of with the Commissioners of Her Majesty's Treasury,
and such judgment, decree, rule, or order shall be complied with by the
registrar or other agent of the colonial government having possession in
England of moneys of such government instead of by the Commissioners
of Her Majesty's Treasury.

21. For the purposes of the Act of the session of the twenty-fourth
and twenty-fifth years of the reign of Her present Majesty, chapter
ninety-eight, entitle<l " An Act to consolidate and amend the Statute Law
of England relating to indictable offences by forgery," colonial stock
to whicii this Act applies shall be deemed to be ctipital stock of a body
corporate.

The Forgery Act, 1870, shall apply to a stock certificjite and a coupon
issued in pursuance of this Act, and to colonial stock to wiiich this Act
iippHes, in like manner a« if the same were a stock certificate, coupon,
or stock mentioned in that Act.

Forgory of
transferfi of
stock and of
stock certifi-
cates, and ptT-
sonatioii of
owners of
stock, &e.

33 & 34 Vict,
c. 58.

22. Colonial stock to which this Act applies shall be personal estate, Stock to which
and shall not be liable to any foreign attiichment by the custom of London ^'^^ applies *o
or otherwise be personal

estate.

23. The registrar may charge such fees (if any) in re.spect of any Fees,
certificate issued under this Act with reference to colonial stock and in
respect of any transfer thereof in the register, and otherwise in resi)ect

of any act done by the registrar with respect to such stock, as may be
fixed by the government issuing the stock, not exceeding in any case
five shiilines.

.... O

All fees charged by the registrar in piirsuance of this Act may be
letained by him for his own use.

S 2340. 3 F

^ii

Control of dis-
cretion of re-
gistrar.

Saving for
traiist'or of
stock to colony.

Definitions.

Statutory
Declarations
Act, 1835.

Short title.

-.J

Amendment of
existing Acts as
to composition
for stamp duty
37 & 38 Vict,
c. 26.

818 37 & 38 c. 26., 40 & 41 VICT. c. 59.— DEF. TERMS. [1874-7

24. Any discretion or powor vested by this Act in the rofistrar shall
subject to any agreement l)etween the registrar and the governmpnt of
the colony issuing the stock inscribed in the register icopt bv such
registrar, be exercised subject to and in accordance with the directions
of that government.

25. Nothing in this Act shall prevent any colonial stock inscrihod in
the register being transferred upon the application of the stockholder to
a register in the colony or elsewhere.

26. In this Act, unless the context otherwise requires,

The expression " colony " means any dominion, cohmy, island, terri-
tory, province, or settlement situnte within Her Majesty's dominions
l)ut not within the United Kingdom, the Channel hlandt, or hk
of Man, and not forming part of India as defined for the purposes
of the Acts for tlie time being in force relating to the Government of
India ; and for the purposes of this Act the whole of tiie dominion,
colonies, i.slands, territories, provinces, and settlements under cm
central legislature, and also such part of the said dominion and
such of the said colonies, islands, territories, provinces, and settle-
ments as is under a local legislature is deemed to be a colonv :
. The expression " legislature " means any bodies or body of piMsons or
person who can exercise legislative authority in a colony, and wliere
there are local legislatures as well as a central legislature, includes
both each of the local legi.slatures and the central legislature :

Tiie expression "colonial stock" includes any share or interest in
colonial stock :

The expression " register " includes any books kept by the registmr
for the purpose of colonial stock in which the names and addresses
of the several persons for the time being enf tied to such stock, and
the amounts to which they are entitled, an . the transfers thereof,
are entered :

The expression *' stockholder " means a person holding colonial stoeli,
being entered as proprietor thereof in the register kept under tins
Act:

The expression " person " includes a corporation :

The Act of the session of the fifth and sixth years of the reign of
Her present Majesty, chapter sixty-two, intituled "An Act to repeal
" an Act of the present session of Parliament, intituled ' An Act for
' the more effectunl abolition of oaths and affirmations taken and
' made in various departments of the State, and to substitute de-
' clanitions in lieu thereof, and for the more entire suppression of
'voluntary and extra-judicial oaths and affidavits'; and to mulce
other pro\isions for the abolition of unnecessary oaths," is in this
Act referred to, and may be cited in any declaration made thereunder
for the purposes of this A(!t, as The Statutory Declarntions Aet,
1835.

27. This Act may be cited as The Colonial Stcck Act. ^Hl.

The Inland Revenue Act, 1880, 43 ;'. Vict. c. 20,,
by sec. 54, made the following; amertir its to 37 &
38 Vict. c. 26. and 40 & 41 Vict. c. 69.

54. The sum to be paid by way of composition for stamp duty in the
following cases, that is to say,

(2.) Under sec. 4 of the Canadian Stock Stamp Act, 1874, on trans-
fers of stock of the Government of Canada from time to time

ff '

1874] 37 & 38 VICT. c. 26.— STAMP DUTY ON BONDS. 819

inscribed after the passing of this Act in books kept in the

United Kingdom ; or
(3.) Under sec. 3 of the Colonial Stock Act, 1877, on transfers of 40 & 4i vict.

colonial stock to which from time to time that Act is made to c. 69.

apply after the passing of this Act,
shall be calculated as if the rates enacted by this Act for the composition
of the duty on transfers of stock created and issued by the council of
anv municipal borough were substittited for the rate or sum of seven
shillings and sixpence in the said section respectively : Provided that
where the holders of the debentures of the Government of a colony have,
before the first day of July one thousand eight hundred and eighty, had
an option given to them to exchange such del)entures within twelve
mouths for colonial stock, to which the Colonial Stock Act, 1877,
applies, the composition for the stamp duty on transfers of colonial stock
issued in accordance Avith any option declared within the said twelve
months shall be the same as if this section had not been enacted.

[And 45 & 46 Vict. c. 72., hy sec. 17, amended the
above as follows : —

See. 17 : Whereas by the Canadian Stock Stamp Act, 1874, provision
was made for the Government of Canada paying capital sums, calculated
at the rate therein mentioned, as composition for stamp duty chargeable
on transfers of any stock of the Government of Canada inscribed in liooks
kept in the United Kingdom :

And whereas after the passing of the above Act, the Government of
Canada issued to the public, with the option of inscription at any time in
hooks kept in the United Kingdom, the loans mentioned in the Second
Schedule to this Act ; and holders of tl said loans before the passing of
the Inhind Kevenue Act, 1880, had exen ised that option to the extent
in the said Schedule mentioned, and the Goverinnent of Canada had paid
composition for the stamp duty accordingly :

And whereas by sec. 54 of the Iidand Revenue Act, 1880, the amount
of the composition for stamp duty chargeable on transfers of stock of
the Government of Canada and other stock was increased, subject to a
[iroviso that such increased composition should not apply for twelve
months in the case of the holders of debentures of the Government
of a colony who had an option to exchange such debentures within
twelve months for colonial stock, to which the Colonial Stock Act, 1877,
applied :

And whereas, having regard to the special circumstances connected
with the issue of the stock mentioned in the said Schedule, it is
expedient to make for the holders of that stock a similar provision to
that umde by the above-mentioned proviso in the case of the holders of
colonial stock :

Be it therefore enacted as follows :

Where at any time since the passing of the Inland Revenue Act, 1880,
whether before or after the passing of this Act, but before the first day
of April one thousand eight hundred and eighty -six, any part of the loans
of the Government of Canada mentioned in the Second Schedule to this
Act has been inscribed as stock in books kept in the United Kingdom,
the Government of Canada may pay to the Commissioners of Inland
Revenue, by way of composition for the stamp duty chargeable on
transfers of such stock, a sum calculated at the rate mentioned in the
Canadian Stock Stamp Act, 1874, instead of the rate mentioned in the
Inland Ucvenue Act, 1880.

3f2

Provision for
composition for
stamp duty on
certain Cana-
dian loans.

37 & 38 Vict.
e. 26.

43 & 44 Vict,
c. 20.

40&41 Vict,
c. 59.

K II

Short title.

Deflnition of
tprm " colony."

820 37 & 38 VICT. c. 27.— COL. CTS. SENTENCES. [I874,

SECOND SCHEDULE.
Dominion of Canada Loans.

The following amounts of 4 per cent, loans were issued to the public
in the following years :

In 1874 -
In 1875 -
In 1876 -
In 1878-9

Of the above there were inscribed in
books kept in the United Kingdom vip
to the first day of May 1882 :

4,000,000
1,000,000
2,500,000
4,500,000

£12,000,000

Of the loan of 1874

1875

1876

>»

1878-9

1,831,200

500,000

1,088,000

2,279,700

Leaving in the hands of the public with
option of inscription ....

£5,698,900

£6,301,100

37 & 38 VICT. (1874) c. 27.
Preamble repealed by S. L. R. Act, 1893 (No. 2), c. 54.

An Act to regulate the Sentences imposed by
Colonial Courts where jurisdiction to try is
conferred by Imperial Acts. [30^^ June 1874.]

WHEREAS by certain Acts of Parliament juris-
diction is conferred on courts in Her Majesty's
colonies to try persons charged with certain crimes or
ofPences, and doubts have arisen as to the proper sen-
tences to be imposed upon conviction of such persons;
and it is expedient to remove such doubts :

Be it enacted by the Queen's most Excellent Majesty,
by and with the advice and consent of the Lords Spirit-
ual and Temporal, and Commons, in this present Parlia-
ment assembled, and by the authority of the same, as
follows :

1. This Act may be cited for all purposes as The
Courts (Colonial) Jurisdiction Act, 1874.

2. Eor the purposes of this Act —

The term " colony " shall not include any places within

1874,]

37 & 38 VICT. c. 41.— COL. ATTORNIES.

821

the United Kingdom, the Isle of Man, or the
Channel Islands, but shall include such territories
as may for the time being be vested in Her Majesty
by virtue of an Act of Parliament for the Govern-
ment of India, and any plantation, territory, or
settlement situate elsewhere within Her Majesty's
dominions, and subject to the same local govern-
ment ; and for the purposes of this let, all planta-
tions, territories, and settlements under a central
legislature shall be deemed to be one colony under
the same local government.
?,. When, by virtue of any Act of Parliament now or At triM« in any
hereafter to be passed, a person is tried in a court of any hy virtue of
colony for any crime or offence committed upon the cOTrts'oni^"'^'
liisrh seas or elsewhere out of the territorial limits of po^^rcd to

o .... P"*** sentences

sucli colony ^ and c I the local jurisdiction of such court, as if crimes

.,, ..1. 11 !• .1... 1 liail been coni-

01' if committed withm such local jurisdiction made mittedintho

punishable by that Act, such person shall, upon con-
viction, be Hable to such punishment as might have been
inflicted upon him if the crime or offence had been com-
mitted within the limits of such colony and of the local
jurisdiction of the court, and to no other, anything in
any Act to the contrary notwithstanding : Provided
always that if the crime or offence is a crime or offence
not punishable by the law of the colony in which the
trial takes place, the person shall, on conviction, be liable
to such punishment (other than capital punishment) as
shall seem to the court most nearly to correspond to the
punishment to which such person would have been liable
in case such crime or offence had been tried in England.

' SeeMacleodv. Att.-Gen. of New South Wales ante, sec. 101, p. 417.

colony.

i : I

I 'I

37&38VICT. (1874)c. 41.

Preamble repealed by S. L. R. Act, 1893 (No. 2), c. 64.

An Act to amend " The Colonial Attornies Relief Act."

[30^ July 1874.]

WHEREAS by the Colonial Attornies Relief Act certain provisions 20 & 21 Vict,
are made for regulating the admission of attornies and solicitors c. 39.

822 38 & 39 VICT. c. 38.— POWE«S OF CAN. H.C.

[1875.

I'iXamination
and ceiising
to practiB3
di ..penst'd
with where
colonial
attorney and
solicitor has
actually
practised for
seven years,
and passed
examination
previous to
admission.

Short title.

•10 At 31 Vict.
0. 3.

of Colonial Courts in Her Majesty's Siipi-rior Courts of Law and Eiiuitv
in Enf^land in certain ca.ses, and it is considered just and (Mjuitalilf to
amend the said Act :

Be it therefore enacted by the Queen's most Excellent Majestv hy
and with the advice and consent of the Lords Spiritual and 'IViinmnii
and Commons, in this present Parliament as.sembled, and liy tlic aiitlKi-'
rity of the same, as follows :

1. So much of the Colonial Attornies Relief Act as enacts that no
person shall be deemed (jualified to be admitted as attorney or solicitor
under the provisions of the said Act unless he shall pass an e.vauiination
to test his fitness and capacity, and shall further make afR(ln\ it that lie
has ceased for the space of twelve calendar months at the least to inaitisc
as attorney or solicitor in any colonial (!Ourt of law, and also so mucli of
the said Act and of any orders and regulations made thereunder as relate
to such examination, shall not apply to nor shall compliance; therewith
respectively be required of any person seeking to be admitted us attorney
or solicitor under the provisions of the said Act who shall have been in
actual practice for the {Ksriod of seven years at the least as attorniv and
solicitor in any colony or dependency as to which an Order in Council
has been or may be made as mentioned in the said Act, and who shall
have served under articles and passed an examination [jrcvioiislv to his
admission as attorney and solicitor in any such colony or dependcnev.

2. The expression " The Colonial Attornies Relief Act " shall hence-
forth be deemed to include this Act.

37 c& 38 VICT. (1874) c. 77.

This Act referred to colonial aud other clergy : Init it
is not considered of sufficient importance to give it.

38 & 39 VICT. (1876) c. 38.

Preamble and to " same as follows " and see. 1 to
" so repealed" repealed by S. L. E. Act (No. 2), 1893,
56 & 57 Vict. c. 54.

An Act to remove certain doubts with respect to
the powers of the Parliament of Canada under
section eighteen of the British North America
Act, 1867. [19«A July 1875.]

WHEEEAS by section eighteen of the Jiritish
North America Act, 1867, it is provided as
follows : " The privileges, immunities, and powers to be
held, enjoyed, and exercised by the Senate and by the
House of Commons, and by the members thereof re-
spectively, shall be such as are from time to time defined

^wn

1875.] 38 & 39 VICT. c. 38.— POWERS OF CAN. H.C. 823

by Act of the Parliament of Canada, but so that the
same shall never exceed those at the; passing of this Act
held, enjoyed, and exercised hy the Commons House of
Parliament of the United Kingdom of Greai Britain
and Ireland, and by the members thereof;"

And whereas doubts have arisen with regard to the
power of defining by an Act of the Parliament of
Canada, in pursuance of the said section, the said
privileges, powers or immunities, and it is expedient to
remove such doubts ;

Be it therefore enacted by the Qveen's most Excellent
Majesty, by and with the advice ;nd consent of the
Lords Spiritual and Temporal, and Commons, in this
present ParUament assembled, and by the authority of
the same, as follows : —

1. Section eighteen of the British North America suijstitution of
Act, 1867, is hereby repealed, without prejudice to any- salion I's " f °'
thing done under that section, and the following section '^^^ ^' ^ "''
shall be substituted for the section so repealed : —

[See for this ante p. 11, where the new section is set
out in place of the section repealed.]

2. The Act of the Parliament of Canada passed in Confinnution
the thirty-first year of the reign of Her present Majesty, iiament°of "'
chapter twenty-four, intituled " An Act to provide for gf^^^j vict.
oaths to witnesses being administered in certain cases <'• 24.

for the purposes of either House of Parliament," shall
he deemed to be valid, and to have been valid as from
the date at which the royal assent was given thereto by ;
the Governor-General of the Dominion of Canada.

3. This Act may be cited as the Parliament of Canada short titi..
Act, 1875.

38 & 39 VICT. (1875) c. 53.

An Act giving effect to the Canadian Copyright Act
of 1875, 38 Vict. c. 88. ^See International Copyright
Act of 1886, po8t.'\

824 40 & 41 VIOT. c. 23.— FORTIFICATIONS.

40 & 41 VICT. (1877) c. 23.

[1H77,

In sec. 1 the words, " Commissioners of H^r
Majesty's," repealed by 8. L. E. Act, 189 1-, c. 66.

An Act to make bettor provision respecting lortificii.
tions, works, buildings, and land situate in a Colony
and held for the defence of the Colony.

[2Srd July 1877.]

BE it enacted by the Queen's most Excellent Majesty, by uiul with
the advice and consent of the Lords Spiritual and Temporal, imd
Commons, in this present Parliament assembled, and by the authoritv of
the same, as follows :

1, It shall be lawful for Her Majesty, on the representation of one of
Her Majesty's Principal Secretaries of State and of the Conimissioiiprs
of Her Majesty's Treasury that it is expedient so to do, by Order in
Council to vest any fortifications, worlss, buildings, or Ifind in am
colony held in trust for the defence of that <!olony (whether vested iii
Her Majesty, or in one of Her Majesty's Principal Secretaries of Sttite,
or in the principal officers of the 33oard of Ordnance, or in the com-
manding Royal Engineer, or other ofHcer), and the care and disposal of
such fortifications, works, buildings, or land, in the governor of the
colony, for such estate and interest, and upon such terms and conditions,
and subject to such reservations, exceptions, and restrictions as jnc
specified in the Order ; and the governor for the time being of the colony
shall, by virtue of this Act and the Order, take and hold (subject to tlic
provisions of the Order) the premises trimsferred to and vested in hiia
accordingly.

Every representation to Her Majesty proposed to be made in pursuance
of this Act shall be laid before both Houses of Parliament, and .simll lie
for not less than forty days on the table of both Houses btifore it is sub-
mitted to Her Majesty.

Saving for 2. Nothing in an Order made in pursuance of this Act shall affect am

other interests, estate, interest, right, or claim in or to any fortifications, works, buildings,
or land comprised in the Order other than such as at the date of the
Order was vested in or held in trust for Her Majesty.

Power by Order
in Council to
trunsfftr colo-
ni»l fortifica-
tions to gover-
nor of colony.

Definitions :
" Colony : "

' Governor."

Short title.

3. In this Act, unless the (!ontext otherwise requires, —

The expression " colony " means any dominion, colony, island, terri-
tory, province, or settlement situate within Her Majesty's dominions,
but without the United Kingdom, the Channel Islands, and Isle of Man,
and not forming part of India as defined for the purposes of the Act for
the time being in force relating to the Government of India ; and for tlie
purposes of this Act the whole of the dominion, colonies, islands, terri-
tories, provinces, and settlements imder one central legislature Is (leemed
to be a colony :

The expression " governor " includes any lieutenant-governor or
officer administering the government of a colony, and any other person
defined by an Order in Council under this Act to be the governor of the
colony.

4. This Act may be cit«d as " The Colonial FortiflcationB Act, 1877."

1H78,] tl A 42 VICT. c. 67— FOREIGN JURISDICTION. B26

U & 12 VICT. (1878) c. 67.

An Act for extending and amending the Foreign

Jurisdiction Acts.

Sec. 3 givei power to the Queen in Council to extend
the e.iactments or amending or substituted enactments
in foi'co of 6 & 7 Vict. c. 31. (repealed by 44 & 45
Vict. c. 69.) ; 12 & 13 Vict. c. 96. ; 14 & 15 Vict. c. 99.
ss. 7, 11 ; 17 & 18 Vict. c. 104. Part X. [see Shipping Act
of 189 1, part 13] ; 19 & 20 Vict. c. 113. ; 22 Vict. c. 20. ;
22 & 23 Vict. c. 63. ; 23 & 24 Vict. c. 122. ; 24 & 25
Vict. c. 11. ; 30 & 31 Vict. c. 124. s. 11. ; 37 & 38 Vict,
c. 91'. 8. 51. ; to any place to which the Foreign Juris-
diction Act, 1843, 6 & 7 Vict. c. 94. applies.

And sec. 4, an Order in Council purporting to be Powov for tUo
made in pursuance of the Foreign Jurisdiction Acts, cii t.. LxtcnJ
1813 to 1878, or any of them, shnll be deemed a colonial coioilies."^^
law within the Colonial Laws Validity Act, 18G5, 28 dc
29 Vict. c. 116. " to remove doubts as to the validity
of colonial laws," and which enacted that the term
"British Colony" includes any of H.M.'s possessions
out of the U.K., and any country or place to wliich any
such order extends" shall be deemed a colony within
that Act.

By sec. 7, every Order in Council made in pursuance
of the Foreign Jurisdiction Acts, 1843, 1878, shall be
laid before both Houses of Parliament.

By sec. 8, a limit of six months is fixed within which
any action for any cause against persons acting under
the Acts must be brought. '

By sub-sec. 2, amends may be tendered, and money
paid into court.

This Act repealed 6 & 7 Vict. c. 80. {China), and
sec. 7 of 6 & 7 Vict. c. 94. ■

1 !:

44 & 45 VICT. (1881) c. 58.
The Army Act.
By sec. 159 any person subject to military law,
who within or without Her Majesty's dominions com-

826 44 & 45 VICT. c. 69.— FUGITIVE OFFENDERS.

Army Act,
trial of offen-
ders abroad.

Short title.

Lialiility of
fugitive to be
apf reh( nded
and returned

Endorsing of
■warrant for
approhension
of fugitive.

[1881.

mits any offence for which he is liable to be tried bv
court-martial, may be tried and punished for such offence
at any place (either within or without Her Majesty's
dominions) which is within the jurisdiction of an officor
authorised to convene general courts-martial, and in
which the offender may for the time being be, in the same
manner as if the offence had been committed where the
trial by court-martial takes place, and the offender were
under the command of the officer convening such court-
martial.

44 & 45 VICT. (1881) c. 69.

The Fugitive Offenders Act.

Sec. 11 from " or Lords " to " Ireland " and +]ie words
" of such Lord-Lieutenant " ; sec. 39 so far it defines
Secretary of State ; sees. 40 & 41, and the Schedule,
repealed by S. L. R. Act, 1894, c. 56.

Tlie Act, by sec. 41, repeals 6 & 7 Vict. c. 34.
An Act to amend the Law with respect to Fugitive

Offenders in Her Majesty' Dominions, and for other

Purposes connected with the Trial of Offenders.

[21th Aug. 1881.]

BE it enacted by the Queen's most Excellent Majesty, by niul with
the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the authority
of the same, as follows ; (that is to say,)

1. This Act may be cited as the Fugitive Offenders Act, 1881.

PART I.
Return of Fugitives,

2. Where a person accused of having committed an offence (to wliicli
this part of this Act applies) in one part of Her Majesty's (loiniiiioiis
has left that part, such person (in this Act referred to as a fugitive from
that part), if found in another ])art of Her Majesty's dominions, shall
be liable to be apprehended and returned in manner provided by this
Act to the part from which he is a fugitive.

A fugitive may oe so apprehended under an endorsed warrant or u
provisional warrant.

3. Where a warrant has been issued in one part of Her Majesty's
dominions for the apprehension of a fugitive from that part, any of the
following authorities in another part of Her Majesty's dominions iu or
on the way to which the fugitive is or is suspected to be ; (that is to say,)

(1.) A judge of a superior court in such part ; and

(2.) In the United Kingdom a Secretary of State and one of the

magistrates of the metropolitan police court in Bow Street;

and

Ti-

ed warrant or a

1^81] 44 & 45 VICT. c. 09.— RIGHT TO ARREST.

827

Provisionul
warriiut for
apprelionsion
of fugitive.

Dealing with
fugitive when
appruhcndcd.

(3.) In K Biitish possesaioii the governor of that possession,
if sutistied that the warrant was issued by some person having lawful
authority to issue the same, may endorse such warrant in manner pro-
vided by this Act, and the warrant so endorsed shall be a sufficient
authority to apprehend the fugitive in the part of Her Majesty's do-
minions in which it is endorsed, and bring him before a magistrate.

4, A magistrate of any part of Her Majesty's dominions may issue
11 provisional warrant for the apprehension of a fugitive who is or is
sni-pected of being in or on his way to that part on such information,
aud under such circumstances, as would in his opinion justify the issue
of a warrant if the offence of which the fugitive is accused had been
coumiitted within his jurisdiction, and such warrant may be backed and
executed accordingly.

A magistrate issuing a provisional warrant shall forthwith send a
report of the issue, together with the information or a certified copy
thereof, if he is in the United Kingdom, to a Secretary of State, and
it he is in a British possession, to the governor of that possession, and
the Secretary of State or Governor may, if he think fit, discbarge the
person apprehended under such warrant.

5 A fugitive when apprehended shall be brought before a magistrate,
who (subject to the provisions of this Act) shall hear the case in the
same manner and have the same jurisdiction and powers, as near as may
lie (incUuling the power to remand and ailmit to bail), as if the fugitive
were charged with an offence committed within his jurisdiction.

If the ondonsed wairant for the apprehension of the fugitive is duly
autneuticated, and such evidence is produced as (subject to the provi-
sons of this A j .) according to the law ordinarily administered by the
mngistiate raises a strong or probable presumption that the fugitive . '

eomuiitted the offence mentioned in the warrant, and that the offence is
cue to which this part of this Act applies, the magistrate shall commit
the fugitive to prison to await his return, and shall forthwith send a
ccitificate of the committal and such report of the case as he may think
fit, if in the United Kingdom to a Secretary of State, and if in a British
possession to the governor of that possession.

AVhere the magistrate commits the fugitive to prison, he shall inform
the fugitive that he will not be surrendered until after the expiration of
iil'teeu (lays, and that he has a right to apply for a writ of halwas corpus,
or other like process.

A I'lgitive apprehended on a provisional warrant may be from time
to time remanded for sue' aasonable time, not exceeding seven days at
liny one time, as under the circumstances seems requisite for the pro-
duction of an endorsed warrant.

6. Upon the expiration of fifteen days after a fugitive has been Kutum oi
committed to prison to await his return, or if i- writ of hal)eas corpus fugitive by
or other like process is issued with reference to such fugitive by u wrr^nt-
siilierior court, after the final decision of the court in the case,

(1.) if the fugitive is so committed in the United Kingdom, a

Secretary of State ; and
(2.) if the fugitive is so committed in a British possession, the
governor of tliat possession,
may, if he thinks it just, by warrant under his Imnd order that fugitive
to be returned to the part of Her Majesty's dominions from which he is
a fugitive, and for that purpose to be ilciivered into the custody of the
persons to whom the warrant is addressed, or some one or more of them,
and to be held in custody, and conveyed by sea or otherwise to the said

it it

Disehnrgc of
person appre-
hended if not
returned
within one
month.

Sending back
of persons
apprehended
if not prose-
cuted within
six months or
nciiuitted.

Offences to
■which this
part of this
Act applies.

Powers of
superior court
to discharge
fugitive when
case frivolous
or return un-
jiut.

828 44 & 45 VICT. c. 69.— RETURNING FUGITIVE, [mi

part of Her Majesty's dominions, to be dealt with there in duo coinx.
of law as if he had been there apprehended, and such warrant sliall lie
forthwith executed according to the tenor thereof.

The governor or other chief officer of any prison, on request of anv
person having the custody of a fugitive under any such warrant and oii
paynient or tender of a reasonable amount of expenses, shall riiccive sneb
fugitive and detain him for such reasonable lime as may be retjut'sted by
the said person for the purpose of the proper execution of the warrant.

7. If a fugitiv(; who, in pursuance of this part of this Act, lias h-en
committed to prison in any part of Her Majesty's dominioii.s to await
his return, is not conveyed out of that part within one month after such
committal, a superior court, upon a^jplication by or on bcluilf of tlie
fugitive, and upon proof that reasonable notice of the intention 'o make
such application has been given, if the said part is the United Kingdom
to a Secretary of State, and if the said part is a British possessiua to the
governor of the possession, may, unless sufficient cause is shown to the
contrary, order the fugitive to be discharged out of custody.

8. Where a person accused of an offence and returned in iiupsuniiee
of this part of this Act to auy part of her Majesty's dominions, citlier is
not prosecuted for the said off'.'nco within six months after liis arrival in
that part, or is acipiitted of th(> said offence, then if that [lait is ijiu
United Kingdom a Secretary of State, and if that part is a ]5iitisli
posses.sion the governor of that possession, may, if he think fif, on tlie
request of such person, cause hira to be sent back free of cost and with
as little delay as possible to the part of Her Majesty's dominions in oi'
on his way to which he was apprehended.

9. This part of this Act shall apply to the following offences, nnmciv,
to treason and piracy, and to every offence, whether called felony, mis-
demeanor, crime, or by any other name, which is for the tinic lieing
punishable in the part of Her Majesty's dominions in which it wn-
committed, either on indictment or information, by imprisonment with
hard labour for a term of twi'he months or more, or by any gieater
punishment; and for the purposes of this section, rigorous imi)risnnnient,
and any confinement in a prison combined with labour, by whatevci'
name it is called, shall be deemed to be imprisonment with lianl hdwuv.

This part of this Act shall apply to an offence notwithstandinj; that
by the law of the part of Her Majesty's dominions in or on his way 'o
which the fugitive is or is suspected of being it is not an offence, or not
an offence to which this part of this Act applies ; and all tlie provisions
of this i)art of this Act, including tho.se relating to a j)ro\ isionai wanniit
and to a committal to ])rison, shall be construed as if the offence were in
such last-mentioned part of Her Majesty's dominions an ofleiue to
which this [)art of this Act applies.

10. Where it is made to appear to a superior court that by reason of
the tri\ ial nature of the case, or by reason of the application for the
rettu'u of a fugitive not being made in good faith in the interests of
justice or otherwise, it would, having regard to the distance, to the
facilities for communication, and to all the circum.stanees of the case, be
unjust or oppressive or too severe a punishment to return the fugitive
either at all or until the expiration of a certain period, such court may
discharge the fugitive, either absolutely or on bail, or order that lie shnli
not l)e returne<l until after the expiration of the period n.imod in tlie
order, or may make such other order in the premises as to the court
seems just.

.1881.]

44 & 45 VICT. c. 69.— SUM. WITNESS.

829

11. I" /rc/awrfthe Lord-Lieutonant or Lords .Tu.stices or other chief Ppwcr of Lord
ffovernor or governors of Ireland, also the chief seerettiry of such Lord- LieutemiMt in
Lieuteniint, may, as well as a Secretary of State, execute any portion of
tlie powers by this part of this Act vested in a Secretary of State.

PAET II.

Inter- coLONiAi, backing of Warrants and Offences.
Application of part of Act.

12. This part of this Act shall apply only to those groups of British
pos.'sossions to which, by reason of their contiguity or otherwise, it may
seem expedient to Her Majesty to ai)ply the same.

It shall be lawful for Her Majesty from time to time by Order in
Council to direct that this part of this Act sluill api)ly to the group of
British possessions mentioned in the Order, and by the ",ame or any
subsequent Order to except certiiin offences from the application of
this part of this Act, and to limit the application of this part of this
Act by such conditions, exceptions, and qualifications as may be deemed
expedient.

Backing of Warrants.

13. Where in a British possession of a group to which this part of
this Act applies a warrant has been issued for the apprehension of a
person accused of an offence punishable by law in that possession, and
such person is or is suspected of being in or on the way to another
British possession of the same group, a magistrate in the last-mentioned
possession, if satisfied that the warrant was issued by a person having
lawful authority to issue the same, may endorse such warrant in manner
provided by this Act, and the warrant so endorsed shall be a sufficient
authority to apprehend, within the jurisdiction of the endorsing magi-
strate, the person named in the warrant, and bring him before the
endorsing magistrate or some other magistrate in the same British
possession.

14. The magistrate before whom a person so apprehended is brought,
if he is satisfied that the warrant is duly authenticated as directed by
this Act, and was issued by a person having lawful authority to issue
the siime, and is satisfied on oatii that the [)risoner is i\\v. person named
or otherwise des(!ribe<l in the warrant, may order sucli prisoner to be
returned to tlie British possession in which the warrant was issued, and
for that purpose to be delivered into the custody of the persons to whom
the warrant is addressed, or any one or more of them, and to be helil in
custody and conveyed by si^a or otherwise into the British possession in
Avhicli the warrant was issued, there to l>e dealt with according to law .as
if lie iiad been there apprehended. Such order for retiu'n may be made
by warrant mider the hand of the magistrate making it, and may be
executed according to the tenor thereof.

A magistrate .shall, so far as is requisite for the exercise of the powers
of this section, have the same power, including the power to remand and
admit to bail a prisoner, as he has in the case of a person apprehended
under a warrant issued by him.

15. Where a person required to give evidence on behalf of the
prosecutor or defendant on a charge for an offence punishable by law
in a British possession of a group to which thi.s imrt of this Act applie,'^,
is or is suspected of being in or on his way to any other British posses-
sion of the same group, a judge, magistrate, or other officer who would

Application of
part of Act to
Ki'oup of
British pos-
sessions.

Jacking in
one British
possession of
warrant issued
in another of
same group,

Rfturn of
prisoner
apprehended
under backed
warrant.

Backing in
one British
possession of
summons, &c.
of witness
issued in

I ' !l

-mmif»«»«<«»i<J"rat»»-i<«,-.«wiiKi..-.-tii»^.«M».~«.-.kiu«»i«K»w»«.wi»

ilij

li!

830

another pos-
session of
Bivmo group.

Provisional
■warriint in
group of
Britisli pos-i
sessions.

Discharge of
prisoner not
returned with-
in one month
to British pos-
session of
same group.

44 & 45 VICT. c. 09.— NOLLE PROSEQUI.

[:88i,

have lawful authority to issue a summons, requiring the attondnnco of
such witness, if the witness were within his jurisdiction, may is.sup a
summons for the attendance of such witness, and a magistrate in anv
other British possession of the same group, if satisfied that the summons
was issued by some judge, magistrate, or officer having lawful nuthoritv
as aforesaid, may endorse the summons witli his name ; and tlie \vitiie.>is^
on service in that possession of the summons, so endorsed, and on nav'
ment or tender of a reasonable amount for his expenses, shall obey the
summons, and in default shall be liable to be tried and punished either
in the possession in which he is served or in the pos.session in which tiie
summons was issued, and shall be liable to the punishment imposed hy
the law of the possession in which he is tried for the failure of a witiess
to obey such a summons. The expression " summons " in this .section
includes any subpoena or other process for requiring the attendance of a
witness.

16. A magistrate in a British possession of a group to which this part
of this Act applies, before the endorsement in pursuance of this part of
this Act of a warrant for the apprehension of any person, may issue a
provisional warrant for the apprehension of that person, on such infor-
mation and under such circumstances as would in his opinion justify
the issue of a warrant if the offence of which such person is acensoll
were an offence punishable by the law of the said possession, and lunl
been committed within his jurisdiction, and such warrant may lie backed
and executed accordingly ; provided that a person arrested under such
provisional warrant shall be discharged unless the original warrant is
produced and endorsed within such reasonable time as may under the
circumstances seem requisite.

17. If a prisoner in a British possession whose return is authorised
in pursuance of this part of this Act is not conveyed out of that posses-
sion within one month after the date of the warrant ordering his return,
a magistrate or a superior court, upon iipplication by or on l)(dialf of the
prisoner, and upon proof that reasonable notice of the intention to make
such application has been given to the person holding the warrant and to
the chief officer of the police of such possession or of the pi-ovince or
town where the prisoner is in custody, may, unless sufficient cause is
shown to the contrary, order such prisoner
custody.

Any ordei' or refusal to make an order of discharge by a luiigistrate
under this section shall be subject to appeal to a superior court.

to be discharged out of

Sending back
of prisoner not
prosecuted or
acquitted to
British pos-
session of
same group.

Refusal to
return prisoner
■where offence
too trivial.

18. Where a prisoner accused of an offence is returned in pursuance
of this part of this Act to a British possession, and either is not prose-
cuted for the said offence within six months after his arrival in that
possession or is acquitted of the .said offence, the governor of that posses-
.sion, if he thinks fit, may, on the requisition of such pcr.son, cause him
to be sent back, free of cost, and with as little delay as i)ossible, to
the British possession in or on his way to which he was apprehended.

19. Where the return of a prisoner is sought or ordered under this
part of this Act, and it is made to appear to a magistrate or to a superior
court that by reason of the trivial nature of the case, or by reason of ll\'
application for the return of such prisoner not being made in good frith
in the interests of justice or otherwise, it would, having regard to the
distance, to the facilities of communication, and to all the circumstances
of the case, be unjust or oppressive, or too severe a punishment, to
return the prisoner either at all or until the expiration of a certain

1881] 44 A 45 VICT. c. 69.— ADJOINING POSSESSIONS. 831

ixriod, tlie court or magi.strate may discharge the prisoner either
absoiiiti'iy or on hail, or order that he sliall not he returned until
after tlie expiration of the period named in the order, or may make
sucli other order in the premises as to the magistrate or court seems
just.

Any order or refusal to make an order of discharge by a magistrate
under this section shall be subject to an appeal to a superior court.

PAET III.
Trial, Sfc. of Offences.

20. Where two British possessions adjoin, a person accused of an
offence committed on or within the distance of five hundred j'ards from
the common boundary of such possessions may be apprehended, tried,
and punished in either of such possessions.

21. Where an offence is committed on any person or in respect of any
property in or upon any carriage, cart, or vehicle whatsoever employed
in a journey, or on board any vessel whatsoever employed in a navigable
river, lake, canal, or inland navigation, the person accused of such
offence may be tried in any British possession through a part of which
such carriage, cart, vehicle, or vessel passed in the course of the journey
or voyage during whicdi the offence was committed ; and where the side,
bank, centre, or other part of the road, river, lake, canal, or inland
navigation along which the carriage, cart, vehicle, or vessel passed in the
course of such journey or voyage is the boundary of any British posses-
sion, a person may be tried '" such offence in any British possession of
which it is the boundary :

Provided that nothing in this section shall authorise the trial for such
offence of a person who is not a British subject, Avhere it is not shown
that the offence was committed in a British possession.

22. A. person accused of the offence (under whatever name it is
known) of swearing or making any false deposition, or of giving or
faliriciitiug any false evidence, for the purposes of this Act, may be tried
either in the part of Her Majesty's dominions in which such deposition
or evidence is used, or in tiie part in which the same was sworn, made,
given, or fabricated, as the justice of the case may require.

23. AVhere any part of this Act provides for the place of trial of a pei'son
accused of an offence, that offence shall, for all purposes of and inci-
dental to the apprehension, trial, and punishment of such person, and of
and incidental to any proceedings and matters preliminary, incidental to,
or consequential thereon, and of and incidental to tlic jurisdiction of any
court, constable, or oflScer with reference to such offence, and to any per-
«on accused of such offence, be deemed to have been committed in any
place in which the person accused of the offence can be tried for it ; and
sueli person may be punished in accordance with the Courts (Colonial)
Jurisdiction Act, 1874.

24. Where a warrant for the apprehension of a person accused of an
offence has been endorsed in pursuance of any part of this Act in any
part of Her Majesty's dominions, or where any part or the Act provides
for the place of trial of a person accused of an offence, e\ ery court and
magistrate of the part in which the warrant is endorsed or the person
nccused of the offence can be tried shall have the same power of issuing
a warrant to search for any property alleged to be stolen or to be other-
wise unlawfully taken or obtained by such person, or otherwise to lie the

OfFonccs com-
mitted on
boundary of
two adjoining
Uritish pos-
sessions.

Olfeiioes eora-
mittod on
journey be-
tween two
British
possessions.

Trial of rffenco
of falso swear-
ing or plying
falso evidence.

Supplemental
provision as to
trial of person
in any place.

37 & 38 Vict,
c. 27.

Issno of scarcli
warrant.

il :

t i

Kcraoval of
prisoner by
sea from on»
jilaco to
another.

Endorsement
of warrant.

Conveyance of
fugitives and
witnesses.

832

44 & 45 VICT. c. 69— SHIP AND PRISONER,

[1881,

,snbject of such offence, ns that court or magistrate would have if the iiro.
perty had been stolen or otherwise unlawfully Uiken or obtained, or tlie
offence had been committed wholly within the jurisdiction of ,such coiut
or magistrate.

25^ Where a person is in legal custody in a British possession cither
in pursuance of this Act or otherwise, and such person is required to lie
removed in custody to another place in or belonging to the sanK! British
pos.session, such person, if removed by sea in a vessel belonging to Her
Majesty or any of Her Majesty's subjects, shall be deemed to continue in
legal custody until he reaches the place to which he is reiniired to he
removed ; and the provisions of this Act with respect to the retakin" of a
prisoner who has escaped, and with respect to the trial and j)niiishracnt
of a person guilty of the offence of escaping or attempting to escape, or
aiding or attempting to aid a prisoner to escape, shall apply to the case
of a prisoner escaping while being lawfully removed as aforesaid, in like
manner as if he were being removed in pursuance of a warrant (lulorseii
in pursuance of this Act.

PART IV.

Supplemental.
Warrants and Escape.

26. An endorsement of a warrant in pursuance of this Act shall ho
signed by the authority endorsing the same, and shall authorize all or am
of the persons named in the endorsement, and of the persons to wlioiii
the warrant was originally directed, and also every constable, to execiiti!
the warrant within the part of Her Majesty's dominions or place witliin
which such endorsement is by this Act made a sufficient authoiitv, hv
apprehending the person named in it, and bringing him before some
magistrate in the .said part or place, whether the magistrate named in the
endorsement or some other.

For the purposes of this Act every warrant, summons, subpccna, ami
process, and every endorsement made in pursuance of this Act thereon,
.shall remain in force, notwithstanding that the person signing the war-
rant or such endorsement dies or ceases to hold office,

27. Where a fugitive or prisoner is authorized to be returned to any
part of Her Majesty's dominions in pursuance of Part One or Part Twn
of this Act, such fugitive or prisoner may be sent thither in any siiip
belonging to Her Majesty or to any of her subjects.

For the purpose aforesaid, tiie authority signing the warrant for the
return may order the master of any ship belonging to any subject of Hit
Majesty bound to the said part of Her Majesty's dominions to receive
and afford a passage and sid)sistence during the voyage to such fugitive
or ])nsoner, and to the person having him in custody, and to the
witnesses, so that such master be not required to receive more than one
fugitive or prisoner for every hundred tons of his ship's registered ton-
nage, or more than one witness for every fifty tons of such tonnage.

The said authority shall endorse or cause to be endorsed upon the
agreement of the ship such particulars with respect to any fugitive
prisoner or witness sent in her as the Board of Trade from time to time
require.

Every such master shall, on his ship's arrival in the said part of Her
Majesty's dominions, cause such fugitive or prisoner, if he is not in the
custody of any person, to be given into the custody of .some constable,
tiiere to be dealt with according to law.

m !

EE, [1881,

have if the pro-
)l)tninc(l, or the
n of such coni't

ossessioii either
required to l)c
le same British
longing to Her
(1 to eontiiine in
i re(iiiire(l to he
lie retaiiing of a
md jMinishment
ng to escape, or
)ply to the case
ioresaid, in WVc
I'iirrant eiidorseil

this Act shall ho
thorize all or any
persons to wiioni
;tuble, to executd
s or place within
fnt authority, hy
liin before some
ate named in the

Qs, subpoena, anil
lis Act thereon,
signing the war-

returned to any
3nt' 01- Part Two
ther in any ship

( s

■warrant for the
subject of Hit

inions to receivii

to such fugitive

3(ly, and to the
more than one
registered ton-

uch tonnage.

dorsed ujjon the
to any fugitive

roui time to time

said part of Her

he is not in the

some coustahle.

1881]

44 & 45 VICT. c. 69.— FINE ON CAPTAIN.

833

17 & 18 Vict.
c. 104.

Every master who fails on payment or tender of a reasonable amount
for expenses to comply with an order made in pursuance of this section,
or to cause a fugitive or prisoner committed to his charge to be given
into custody as required by this section, shall be liable on summary con-
viction to a fine not exceeding fifty pounds, which may be recovered in
anv part of Her Majesty's dominions in like manner as a penalty of the
same amount under the Merchant Shipping Act, 1H54, and tlie Acts
iiuit^iiling the .same. [See Act of \H9i, post.]

28. If fi prisoner e.scajjc, by lireach of prison or otherwise, out of the Escape of
eustoily of a person acting under a warrant issued or endorsed in pursu- Flltoj^J '°^
an(!e of this Act, he may be retaken in the same manner as a person
nci.'used of a crime against the law of that part of Her Majesty's
dominions to which he escapes may be retaken upon an escape.

A i)ersou guilty of the offence of escaping or of attempting to escape,
or of aiding or attempting to aid a prisoner to escape, by breach of pri.son
or otherwise, from custody under any warrant issued or endorsed in pur-
suance of this Act, may be tried in any of the following jMtrts of Her
Majesty's dominions, namely, the part to which and the part from which
the prisoner is being removed, anil the part in which the prisoner escapes
and the part in whi('h the ofTender is found.

Evidence.

29. A magi.strate may take depositions for the purposes of this Act Depositions to
in the absence of a person accused of an offence in like manner as he ^^^ fi"f^'-.
might take the same if such person were present and accused of the g^tjo,, of
(ifEenee before him. deposiiions and

Depositions (whether taken in the absence of the fugitive or otherwise) warrants,
and copies thereof, and otficial certificates of or judicial documents stating
facts, may, if iluly authenticated, be received in eviilence in proceedings
under tiiis Act.

Provided that nothing in this Act shall authorize the reception of any
such depositions, copies, certificates, or ('ocunients in evidence against a
person upon his trial for an offence.

Warrants and depositions, and coj)ies thereof, and othcial certificates of
or judicial documents stating facts shall be deemed duly authenticated for
the purposes of this Act if they are authenticated in manner provided
tor the time being by law, or if they purport to be signed by or authenti-
eated hy the signature of a judge, magistrate or officer of the part of
Her Majesty's dominions in which the same are issued, taken, or made,
and are authenticated either by the oath of some witness, or by being
sealed with the oifieial seal of a Secretary of State, or with the public
seal of a British possession, or with the official seal of a Governor of a
Britisii possession, or of a Colonial Secretary, or of some secretary or
minister administering a department of the Government of a British
possession.

Ami all courts and magistrates shall take judicial notice of every such
seal as is in this section mentioned, and shall admit in evidence without
further proof the documents authenticated by it.

Miscellaneous.

30. The jurisdiction under Part One of this Act to hear a case and com- Provision as
mit a fugitive to prison to await his return shall be exercised, — to «;xorcise of

(1.) In England, by a chief magistrate of the metropolitan police ^^^''^'^trats ^^
courts or of one of the other magistrates of tlie metropolitan police ™"^'*'
court at Bow Street ; and

S 2340.

. ■ 1

MM'

ill,

^■.^«v-..unu.L...K.L!i^ii»J.UiMLi

834

44 & 45 VICT. c. 69.— TRIAL ANYWHERE. [1881,

(2.) In Scotland, by the sheriff or sheriff substitute of the county of

Edinburgh ; and
(3.) In Ireland, by one of the poli(.'e magistrates of the Dublin metro-
politan police district ; and
(4.) In a British possession, by any judge, justice of the piwe, or
other officer having the like jurisdiction as one of the ina"i.stratpg
of the metropolitan police court in Bow Street, or by such other
court, judge, or magistrate as maybe from time to time provided
by an Act or ordinance passed by the legislature of that
possession.
If a fugitive is apprehended and brought before a magistrate who has
no power to exercise the jurisdiction under this Act in respect of that
fugitive, that magistrate shall order the fugiti\e to be brought before
some magistrate having that jurisdiction, and such order shall be
obeyed.

31. It shall be lawful for Her Majesty in Council from time to time
to make Orders for the purposes of this Act, and to revoke am! vary anv
Order so raudo, and every Order so made .shall while it is in force Imvo
the same ei?eet as if it were enacted in this Act.

An Order in Council made for the purposes of this Act shall be l«i(!
before Parliament as soon as may be after it is made if Parliaincnt is
then in session, or if not, as soon as may lie after the commencement of
the then next session of Parliament.

32. If the legislature of a British possession pass any Act or
ordinance —

(1.) For defining the offences committed in that possession to which

this Act or any part thereof is to apply ; or
(2.) For determining the court, judge, magistrate, officer, or person
by whom and the manner in which any jurisdiction or power
under this Act is to be exercised ; or
(3.) For payment of the costs incurred in returning a fugitive or o
prisoner, or in sending him back if not prosecuted or if acquitted,
or otherwise in the execution of this Act ; or
(4.) In any manner for the carrying of this Act or any part thereof
into effect in that possession,
it shall be lawful for Her Majesty by Order in Council to direct, if it
seems to Her Majesty in Council necessary or proper for carrying into
effect the objects of this Act, that such Act or ordinance, or any part
thereof, shall, with or without modification or alteration, be recognised
and given effect to throughout Her Majesty's dominions and on the higli
seas as if it were part of this Act.

Application of Act.

Application of 33. Where a person accused of an offence can, by reason of the

Act to offences nature of the offence, or of the place in which it was conunittcd, or

at sea or otherwise, be, under this Act, or otherwise, tried for or in respect of the

several imrts of offence in more than one part of Her Majesty's dominions, a warrant

Her Majesty's f"i" tl^^ apprehension of such person may be issued in any part of Her

dominions. Majesty's dominions in which he can, if he happens to be there, be tried;

and each part of this Act shall apply as if the offence had been committed

in the part of Her Majesty's dominions where such warrant is issued,

and such person may be apprehended and returned in pursuance of tiiij

Act, notwithstanding that in the place in which he is apprehended a

court has jurisdiction to try him :

Provided that if such person is apprehended in the United Kingdom
ft Secretary of State, and if he is apprehended in a British possession,

Power as to
m.aking and
revociition of
Orders in
Council.

Power of

legislature of
British pos-
session to pass
laws for
parrying into
effect this Act.

ERE, [1881.

1881.] 44 & 45 VICT. c. 69.— REMOVAL FOR TRIAL. 835

the Governor of siicli possession, may, if satisfied that, having regard to
the place where the witnes.ses for the prosecution and for the defence are
to he found, and to all the circunist^mcus of the case, it woidd he con-
ducive to tlie interests of justice so to do, order such person to he tried
ill the part of Her Majesty's dominions in which he is ai)prehended, and
in such ciuse any warrant previously issued for liis return shall not bo
executed.

34. Where a person convicted by a court in any part of Her Majesty's
dominions of an offence committed either in Her Majesty's dominions or
elsewhere, is unlawfully at large before the expiration of his sentence,
wich part of this Act shall apply to such person, so far as is consistent
with the tenor thereof, in like manner as it applies to a person accused of
the like offence committed in the part of Her Majesty's dominions in
which such person was convicted.

35. Where a person accused of an offence is in custody in some 'lart
of Her Majesty's dominions, and the offence is one for or in respect of
which, by reason of the nature thereof or of the place in which it was
eouunitted or otherwise, a person may iinder this Act or otherwise be
tried in some other part of Her Majesty's dominions, in such case a
sui«rior court, and also if such person is in the United Kingdom a
Secretary of State, and if he is in a British possession the Governor of
that possession, if satisfied that, having regard to the place where the
witnesses for the prosecution and for the defence are (o be found, and to
all the circumstances of the case, it would be cond .icive to the interests
of justice so to do, may by warrant direct the removal of sucii offender
to some other part of Her Majesty's dominions in which he can be tried,
and the offender may he returned, and, if not prosecuted or accpiitted,
.*nt back free of cost in like manner as if he were a fugitive returned in
pursuance of Part One of this Act, and the warrant were a warrant for
the return of such fugitive, and the provisions of this Act shall apply
accordingly.

36. It shall be lawful for Her Majesty from time to time by Order
in Council to direct that this Act shall apply as if, subject to the con-
ditions, exceptions, and qualifications (if any) contained in the Order,
any place out of Her Majesty's dominions in which Her Majesty has
jurisdiction, and which is named in the Order, were a British possession,
and to provide for carrying into effect such application.

37. This Act shall extend to the Channel Islands and Isle of Man as
if they were part of England and of the United Kingdom, and the
United Kingdom and those islands shall be deemed for the purpose of
thi.s Act to be one part of Her Majesty's dominions ; and a warrant
endorsed in pursuance of Part One of this Act may be executed in every
place in the United Kingdom and the said islands accordingly.

38. This Act shall apply where an offence is committed before the
commencement of this Act, or, in the case of Part Two of this Act,
before the application of that part to a British possession or to the
offence, in like manner as if such offence had been committed after such
commencement or application.

Application of
Act to con-
victs.

Application of
Act to removal
of person
triable in
more than ont
part of Iler
Majesty's
dominions.

Application of
Act to foreign
jurisdiction.

Application of
Act to, and
execution of
warrant in
United King-
dom, Channel
Isliiiiils, and
Isle of Man.

Application of
Act to past
offences.

Definitions and Repeal.

In this Act, nnless the context otherwise requires,— ^rms'*'°" °^

The expression " Secretary of State " means one of Her Majesty's « g *„ c

Principal Secretaries of State :

3g 2

state:

P ; :

i !

■n

. li

! !

flB»«WwMWi«»o!m«*W»W«»«»a«'*««»W"Wfi^^

836

44 & 45 VICT. c. 60— TERMS USED.

[18R1.

" Uritish pos-
Hcssion : "

'' Lcgislnturii : "
" Governor : "

" Constable : "

" Magistrate : "

" Offence
punishable on
indictment : "'

" Oath ; "

" Deposition : "

" Superior
court."

Commence-
ment of Act.

Bepeal of Act
in Schedule.

Tho pxprpssion " British possession " means nny part of Hop Ma.
jesty's dominions, cxcliisivo of the United Kinjjdoni, tiie Channel
Islands, niid Tsle of Afan ; nil territories iiiid pluccs within Her
Majesty's dominions whieli lire ni\(ler one le<^islatin-(> slmjl l)o
deemed to he one Uritish j)ossession and onc^ part oi' Her Majostv's
dominions :

Tho expression "legislatnre," where there are local legislatures as well
as n central leofislatnre, means the central le^jislature onlv :

The expression " Governor " means any person or persons ndniinistor-
inji; the government of a British pos.session, and iiicliuics Hn.
Governor and Lientenant-Cxovcrnor of any part of fiidia :

'I'lie expression " constable " means, 'int of fuif/l(ind, any |ioliivnmii
or ollicer having th«' lik(! powt.J and duties as a eonstjible in
£ii(/l(iiid :

The expression " magistrate " means, except in Scollaivl, any jiistiiv
of the peace, and in Scntlntul means a sheriff or sheriff siihstitiiic
and in the Cliannvl Inlands, hie of Man, and a JJritisli possession
means any jx-rson having aiithoritv to issue a warrant for the a|)|)iv-
hension of persons accused of offences and to commit siiih persdiis
for trial :

The expression " offence jninishahle on indictment " means, as rogHrds
India, an otfence punishable on a charge or otherwise :

The expression " oath " includes affirmation or declaration in tiic chsc
of persons allowed by law to atiirm or declare instead of sweiuini;,
an<l the expression "swear" and other words relating toauoiitbor
swearing shall be construed accordingly :

The expression "deposition" includes any affidavit, afiiiinatioii, nr
statement made upon oath as above defined :

The expression "superior court" means:

(1.) In England, Her Majesty's Court of Appeal and High Court uf

Justice ; and
(2.) In Scotland, the High Court of Justiciary ; and
(3.) In Ireland, Her Majesty's Court of Appejd and Her Majesty's

High Court of Justice at Dublin ; and
(4.) In a British possession, any co\H't having in that |)ossessiou the
like criminal jurisdiction to that which is vested iu the High
Court of Justice in England, or such court or judge as may
be determined by any Act or ordinance of that possession.

40. This Act shall come into operation on the first day of .Jmuiary
one thousand eight hundred and eighty-two, which date is in this Ait
referred to as the connnencement of this Act.

41. The Act s[M^cified in the Schedule to this Act is hereby repiaiiJ
as from the connnencement of this Act :

Provided that this repeal shall not affect —

(a) Any warrant duly endorsed or issued, nor anything duly iloDf

or STittered tefore the commencement of this Aet ; nor
(6) Any obligation or liability incurred under an enactment herehv

repealed ; nor

any offence committed against any enactment hereby rei)ealrtl;
nor

(d) Any legal proceeding or remedy in respect of any such warniiit,

obligation, liability, penalty, forfeiture, or puni.shinenl as
aforesaid j and any such warrant may be endor.sed ami iS' ■
cuted, and any such legal proceeding and remedy niav be
carried on, as if this Act had not passed.

(luvit, uflii'ination, or

.ct is hereby repeali'J

1882] 45 & 40 VICT. c. 70.— COL, REG. OF STOCKS. 837

SCHEDULE.

Year and Chapter.

Title.

H & 7 Vict. f. 34. -

An Act for the better a|)i)reheiialoii of certain
offenders.

46 & 46 VICT. (1882) c. 76.

The whole Act repealed by Merchant Shipping Act,
1894, c. 60.

An Act to amend the Merchant ShippiJig Acts, 1854
to 1880, with respect to colonial courts of inquiry ; and
its enactments have been incorporated in the above
repealing Act, sees. 477, 478, see post.

46 & 47 VICT. (1883) c. 30.

Sec. 7 amended by 52 & 53 Vict. c. 42. s. 18.

An Act to authorize Companies registered und(H' the
Companies Act, 1862, to keep Local Registers of their
Members in British Colonies. [20/^ Aug. 1883.]

WHEREAS many companies registered under the Companies Act,
1802, carry on business in British colonics, and dealings in their
fhares are frecjucnt in such colonies, but delay, inconvenience, and
expense are occasioned by reason of the absence of any legal pro-
vision for keeping local registers of members, and it is expedient that
such provisions as this Act contains be made in that behalf :

Be it therefore enacted by the Queen's most Excellent Majesty, l)y
and with the advice and consent of the Lords Spiritual Tem[)oral, and
Commons, in this present Parliament assembled, and by the authority of
the same, as follows :

1. This Act may be cited for all pur[)ose8 as the Companies (Colonial Short title ami
Registers) Act, 1883 ; and this Act shall, so far as is consistent with construction,
the tenor thereof, be construed as one with the Companies Acts, 1862

to 1H80, and the said Acts and this Act may be referred to as the Com-
panies Acts 1862 to 1883.

2. In this Act the term " company " means a company registered Definitions,
under the Companies Act, 1862, and having a capital divided into shares;

the term "shares" includes stock; the term "colony" does not include
any place within the United Kingdom, the Isle of Man, or the CItannel
Islands, hut includes .such territories as may for the time being be vested
in Her Majesty by virtue of an Act of Parliament for the government
oi India, and any plantation, territory, or settlement situate elsewhere
within Her Majesty's dominions.

: ij

1 !

II r

M^ttrr WW** '**•'""""

Power for
comiiniiirs to
Ucop CDlonial
roKiMtors,

'2/5 & 26 Vict.
0. 80.

838 40 & 47 VICT. c. 30.— COL. RKUISTEUS EVIDENCE. [1883.

3. (1.) Any foniimny wliost- objects comprise the tiaiiMiction of
bnsiiiesH in a colony niiiy, if iviitliorized so to do l)y its ir'nilutioiis as
ori{j;inuily framed, or as altei'ed liy M|)ecial resolution, cause to he kciii
in any colony in which it transacts l)iisine,s.s a branch register or re"i>t('rs
of member.s resident in such colony.

(2.) The company .shall give to the registrar of joint stock couiimiiiis
notice of the situation of the otfice where any such branch registir (in
this Act called a colonial registt^r) is kci)t, and of any change tlicivin
and of the discontinuance of any .nich otfice in the event of the same
being discontinued.

(3.) A colonial register shall, us regards the particulars entered tiuTtin
be deemed to be a part of the company's register of members, and slmll
be primft facie evidence of all particulars entered thertMii. Any suili
register shall be kept in the manner provided by the Companies Acts
1802 to 1880, with this qualification, that the advertisement ineiitioncii
in section thirty-three of the Companies Act, 1862, shall be inserted in
some newspaper circulating .u the district wherein the register to k'
clo.sed is kept, and that any competent court in the colony wlieru such
register is kept .shall be entitled to exercise the wime jurisdiction of
rectifying the .same a.s is by section thirty-live of the Companies Act, 18(32,
vested, as respects a register, in Euflland and Ireland iu Her Majesty's
superior coin-ts of law or e(piity, and that all offences under .section
thirty-two of the Companies Act, 18()2, may, as regards a colonial re;;istcr,
be prosecuted Bummarily before any tribunal in the colony where such
register is kept having summary criminal jurisdiction.

(4.) The company shall transmit to its registered office a copv nf
every entry in its colonial register or registers as soon as may lie lil'iit
such entry is made, and the company shall cause to be kept at its rcjjis-
tercd ollice, duly entered up from time to time, a duplicate or (hi|ilic!il(s
of its colonial register or registers. The provisions of section thirty-
two of the Companies Act, 1862, shall apply to every such duplicalc,
and every such (luplicate shall, for all the purposes of the Coniiiaiiic-
Acts, 1802 to 1880, be deemed to be part of the register of members of
the company.

(5.) Subject to the provisions of this Act with respect to the (lupli-
cate register, the shares regist(Ted in a colonial regL'tcr shall be dis-
tinguished from the shares registered in the principal register, and no
transaction with respect to any shares registered in a colonial register
shall, during the continuance of the registration of such shares in such
colonial register, be registered in any other register.

(6.) The company may discontinue to keep any colonial register, and
thereupon all entries in that register shall be transferred to some otlier
colonial register kept by the company in the .same colony, or to the
register of members kept at the registered office of the company.

(7.) In relation to stamp duties the following provisions shall have
effect : —

(a.) An instrument of transfer of a share registered in a colonial
register under this Act shall be deemed to be a transfer of
property situated out of the United Kingdom, anil unless
executed in any part of the United Kingdom shall be exempt
from British stamp duty.

(6.) Upon the death of a member registered in a colonial register
under this Act, the share or other interest of the dece&'cd
member shall for the purposes of this Act so far as relates to

DENCE. [188;{.

188,1] 46 A 47 VICT. c. 30.— COL. CONFERENCE.

839

hritish (lut.ios Iw (iTOUietl to be part of hiw cMtufu nml t'tYcils

situuted iu the United Kinj^doin, lor or in rcspt'ct ol" wliich

proliiito or letters of udiiiiiiiHtriition is or are to lie limited,

or whereof an inventory is to be exhibited and recorded in

like manner as if ho were rej^istered in the register ol

uienibers kept ut the regi.stered olHee of the company.

(H.) Subject to the provisions of this Act, any eompiiny may, by its

icfjuifttions as originally framed, or as altered by special resolution,

miike such provisions as it may ihink lit respecting tiie keeping ol' colonial

rt'gist«'rs.

See letter of Lord Knutsford,
13th Sept. 1889, as follows: —

" I liuve the honour to transmit
to yoii a eopv of the Imperial Act
4 im\ (52 & 53 Vict. c. 42.), and
lorwiue.st that you will cause sees.
18 and 1'^ to be published for in-
foruiution in your colony under
your Government. During the sit
tiiij,' of the Colonial Conference iu
1887, tlie attention of H.M.'s gov-
ernmeut was called to the Companies
((blouiul llegisters) Act, 1883 (40
Si 17 Vict. 0. 30.), which had the
effect of requiring probate or letters
of administration to be t»iken out
bothin thecolony and inthiscountry
in respect of the willo or estates of
colonial shareholders holding shares
on the colonial registers of banks
and other companies. The proceed-
ings ou the subject at pp. 76-107 of
Par. Paper C. 5091, vol. l,and the
\M\ieTs then laid before the confer-
ence, are printed on pp. 47, 48, 49
of the Par. Paper C. 5091, vol. 2.
The promise given in the former
that this grievance should be reme-
died has now been redeemed by the

pa.x.singof sec. 18 (of 52 & 53 Vict,
c. 42) for the purpose.

A somewhat similar complaint
was brought to the notiet* of Her
Majesty's Government in connec-
tion with policies of life insurance
issued in the colonies by insurance
companies carrying on business in
the colonies, but having their head
olHce iu the United Kingdom. Tho
sums recovered under such policies
were held to be assets situated in the
United Kingdom, and under sec.
11 of the Imi)erial llevcnue Act,
1884(47 &48 Vict. c. 02, scehelow)
the production of u grant of repre-
sentation from thecourt in theUnited
Kingdom, by probate, or letters of
administration, or confirmation, was
ne(!essary to establish the right to
recover or receive these amounts.

The hardship of this provision
upon persons who had do real con-
nection with the United Kingiloin
has been recognised, and sec. 19
has beeu passed to reniovti it.

See therefore Ileveuue Act, 1889,
52 & 63 Vict. c. 42. ; sees. 18, 19.

Sees. 18 and 19 of 62 & 63 Vict. (1889) c. 42. were as

follows : —

18. Notwithstanding provision (b) in section seven of the Companies Amendment of
(Colonial Registers) Act, 1883, the share or other interest of a deceased -46 & 47 Vict.
member.registeredinacolonialregisterunderthat Act, who shall have died "• ^'^- ^' "^f
domiciled elsewhere than in the United Kingdom, shall, so far as relates ?^ 2010^11^

to British duties, not be deemed to be part of his estate and effects registers,
situated in the United Kingdom, for or in respect of which probate or
letters of administration is d <tre to be granted, or whereof an inven-
tory is to be exhibited and recorded.

19. The proviso to section eleven of the Eevenue Act, 1884 (see it Amendment of
betcw), is hereby repealed, and that section shall be read as if the follow- ^'^ ^ ^g yj^j
ing proviso were therein inserted in lieu of the repealed proviso : g. 62,

li 1

I *»?< '.jtin* ? t^« -f ***nwm*<if^'' I

(im'-airam*m*f<4*P. ■

11!^

840 17 & 48 VICT. c. 24.— COL. ATTORNEYS IN ENG. [188J.

Providei! thiit where n policy of life aasurunce has been effected with
any iusurnnce company by a person who shall die domiciled elsewliert'
than ill the United Kingdom, the production of a grant of rcpresintii-
tion from a court in the United Kingdom shall not be uecessaiv to
establish the right to receive the money payable in rt'siwct of such
policy.

Sec. 11 of 47 & 48 Vict,
follows : —

(1884) c. 62. wcas as

Kipresentation
in the United
Kingdom to
constitute the
tit'ic to assets
therein situate.

11. Notwithstanding any provision to the contrary contained in any
local or private Act of Parliament, the production of a grant of repic-
sentation from a court in the United Kingdom by probate or letters of
administration or confirmation shall be necessary to establish the right
to recover or receive any part of the personal estate and effects of anv
deceased person situated in the United Kingdom. Provided that, where
any insurance company is authorized by a local or private Act of Par-
liament to pay money in respect of any policy of life insurance on pro-
duction of a grant of representation obtained in the empire of India nr
in anj of the colonii s, the production of a grant of representation from a
court in the United Kingdom shall not be necessary in case the poliov
was effected before the first day of July one thousancl eight liinidrtd and
eighty-four. Nor shall such production be necessary in case the policy
was effected on or after the said day if the company shall, before paying
si.oh money, have deducted therefrom, and paid to the Coininissioners
of Inhmd Peveinie, the amount which woidd have been payable for dntv
in respect of the money if there had been a grant of representation from
a court in the United Kingdom.

47 & 48 VICT. (1884) c. 24.

To amend the Colonial Attorneys Relief Acts— 20 &
21 Vict. c. 39. s. 3 ; 37 & 38 Vict. c. 11 -by extendini;
them to certain colonies.

The Act provided that upon application by the Gover-
nor of any colony, and after it has been shown that the
system of jurisprudence in such colony or dependency
fulfils the conditions specified in sec. 3 of 20 & 21 Vict.
c. 39., and that English attorneys are admitted to prac-
tise in such colony on production of their certificates
without examination, &c., except in the laws of the
colony so far as they differ from the law of Ein^laud,
Her Majesty may by Order in Council direct the Colonial
Attorneys Relief Act to come into operation as to such
colony, &c., although persons may in certain eases he
admitted as attorneys in such colony or dependeucy
without possessing all the qualifications specified in
sec. 3 of the 20 & 21 Vict. c. 39. That is to say, no

TT^

1881.] 47 & 48 VICT. c. 31— REMOVAL OF CllIMS.

841

attorney or solicitor of such colony shall be admitted
as a solicitor of the Supreme Court in England, unless,
in addition to the requirements of the Colonial Attorneys
Relief Act, he prove by affidavit that he has served for five
years under articles of clerkship and passed an examina-
tion, and, further, that he has since been in i*ctual prac-
tice as attorney, &c. in such colony for seven years at
the leabt.

ief Acts— 20 &

47 & 48 Vict. (1884) c. 31.

An Act to make further provision respecting the l\e-
moval of Prisoners and Criminal Lunatics from Her
Majesty's possessions out of the United Kingdom.

[28/A July 1884.]

WHEREAS it is expedient to provide for the removal of prisoners
undergoing sentence, and of criminal lunatics from one British
possession to another Britisli possession, or to the United Kingdom :

Be it tlierefore enacted by the Queen's most Excellent Majesty, by
and witii tiie advice and consent of the Lords Spiritual and Temporal,
anil Coiuiuons, in this present Parliament assembled, and by the autho-
rity of the same, as follows :

Preliminary.

1. This Act may be cited as the Colonial Prisoners Removal Act, Short title.
1884.

Prisoners removal.

2, Where as regards a prisoner undergoing sentence of imprisonment Removal of

in any British possession for any offence it appears to the removing prisoners from

authority herein-after mentioned either — ""* ""'""

(«) that it is likely that the life of tlie prisoner will be' endangered

or his health permanently injured by further imprisonment

in such British possession ; or,
(b) that the prisoner belonged, at the time of committing the .said

offence, to the Royal Navy or to Her Majesty's regular

military forces ; or,
(f) that the offence was committed wholly or partly beyond the

limits of the said British possession ; or,

(d) that by reason of there being no prigon in the sjiid British

possession in which the prisoner can projjcrly undergo his
sentence or otherwise, tiie removal of tlie pri.soner is exjie-
dient for his safer custody or for more eiUciently carrying
his sentence into effect ; or,

(e) tliat the prisoner Iwlongs to a class of persons who under the

law of the said British possession are subject to removal

under this Act ;
in any such case the removing authority may, subject nevertheless to the
regulatio in force under this Act, order such prisoner to Ix- ri'niov«Ml
to uiiy Biiti.sh possession or to the United Kingdom to undergo his
sentence or the residue thereof.

liritish posses-
sions in certain
cases.

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842

47 & 48 VICT. c. 31— VARYING SENTENCE.

[1884.

Return of

removed

prisoner.

Regulations as
to removal.

Removing
authority.

Evidence of act
of Oovernmcnt
of ISritish poa-
Bcssion or Sec-
retary of State.

3. — (1.) Where a prisoner has been removed in pursuance of thi,s Act
a Secretary of Stiite, or the Government of a British possession to wliicli
the prisoner has been so removed, may order the prisoner, for the
purpose of undergoing the residue of his sentence, to be retuined to
the British possession from which he was removed.

(2.) If a Secretary of State, or the Government of a British possession
to which a prisoner is removed under this Act, requires tlie prisoner to
be returned for discharge to the British possession from which he was
removed, the prisoner shall, in accordance with the regulations under
this Act, be returned to the said British possession for the purpose of
being there discharged at the expiration of his sentence. In any other
case a prisoner when discharged at the expiration of his sentence shall
be entitled to be sent free of cost to the British possession from which
he was removed ;

Provided that where a prisoner at the date of his sentence belonged to
the Royal Navy or to Her Majesty's regular military forces, nothinc
in this section shall require such prisoner to l)e returned to the British
possession from which he was removed, or entitle him to be sent there
free of cost.

4. — (1.) It shall be lawful for Her Majesty in Council from time to
time to make, and when made, revoke and \ary regulations as to the
removal, return, and discharge of prisoners under this Act.

(2.) The regulations may provide for varying the conditions of it
sentence of imprisonment passed in a British pos.session, where they
differ from the conditions of a sentence of imprisonment in the pint of
Her Majesty's dominions to which the pri.soner is removed, with a view
to bringing them into conformity with the latter conditions, but the
prisoner shall not by reason of such variation undergo an imprisonment
of any longer duration ; and where the latter conditions appear to a
Secretary of State to be more severe than the former conililions, the
Secretary of State may remit a portion of the imprisonment, so that the
punishment undergone by the prisoner shall not in the opinion of the
Secretary of State be more severe than the punishment to which the
prisoner was originally sentenced, and the sentence of imprisonment
shall, so long as the prisoner remains in the part of Her Mnjesly's
dominions to which he is removed, be carried into effect as if the con-
ditions thereof as so varied were the conditions of the original sentence.

(3.) The regulations may also provide for the forms to bu um'1 under
this Act and generally for the execution of this Act.

(4.) All regulations made under this section shall be duly observed by
all persons, and shall be laid before both Houses of Parliament as soon
as may be after they are made.

5. The removing authority for the purposes of this Act shall be a
Secretary of State acting with the concurrence of the Government of
every Briti.sh possession concerned.

6. — (1.) The concurrence of the Government of a British possession,
and any retjuisition by the Government of a British possession, may be
given or made by the Governor in Council or such other aullmiity us
may be from time to time provided by the law of that po.s.sessioii. Imt
shall be signifie<l by writing under the hand of the Governor or of the
Colonial Secretary or of any other officer aj)pointed in this behalf by the
law of that possession.

(2.) Any writing purporting to give .such concurrence or make such
requisition, and to be signed by the Governor or Colonial Secretary or
other officer for the time being, shall be conclusive evidence that the

sion, wlicro tlifv

1884.]

47 & 48 VICT. c. 31.--CC>NDITI0NS.

843

concurrence of or requisition by the Government of the British posses-
sion has been duly given or made according to law ; and any writing
puriiorting to be under the hand of a Secretary oi' State, and to order
the reuio\al of a prisoner from a British possession, shall be conclusive
evidence that such order has been duly given by the Secretary of State,
and every such writing as above in this section mentioned shall be
admissible in evidence in any court in Her Majesty's dominions without
further proof.

7. — (1.) Where the removal of a prisoner from a British possession Warrant for
is ordered in pursuance of this Act, a Secretary of State or the Governor removal of
of the British possession may by warrant under his hand direct the pnsoner.
prisoner to be removed to the part of Her Majesty's dominions men-
tioned in the said order, and for that purpose to be delivered into the
custody of the persons named or described in the warrant or some one
or more of them, and to be held in custody and conveyed by sea or
otherwise to the said part of Her Majesty's dominions, there to undergo
his sentence, or the residue thensof, until returned in pursuance of this
Act or discharged, and such warrant shall be forthwith executed accord-
ing to the tenor thereof.

(2.) Where a prisoner is to be returned to a British possession, a
Secretary of State, or the Governor of the possession in which he has
been undergoing his sentence, shall issue a like warrant, which shall be
duly executed according to the tenor thereof.

(3.) Every warrant purporting to be issued in pursuance of this Avt,
and to Ik under the hanil of a Secretary of State or Governor ol' a
British possession, shall be received in evidence in every court of justice
iu Her Majesty's dominions without further proof, and shall be evidence
of the facts therein stated, and all acts done in pursuance of such warrant
shall be deemed to have been authorized by law.

8. — (1.) Every pri.soner removed in pursuance of this Act shall, until Dealing with
he is returned in pursuance of this Act, be dealt with in the part of Her removed
Majesty's dominions to which he is removed, in like manner as if his P'^"*°°*''-
sentence (with such variation, if any, of the conditions thereof as may
have been duly made in pursuance of regulations under this Act) had
been (lidy awarded in that part, and shall be subject accordingly to all
laws and regulations in force in that part, with the folic ing qualifica-
tions, that his conviction, judgment, and sentence may be questioned in
the part of Her Majesty's dominions from which he has been removed
in the siime manner as if he had not been removed, and that his sentence
may be remitted and his discharge ordered in the same manner and by
the same authority as if he had not been removed.

(2.) The officer in charge of any prison, on request by any person
having the custody of a prisoner under a warrant issued in pursuance of
this Act, and on payment or tender of a reasonable amount lor expenses,
shall receive such prisoner and detain him for such reasonable time as
may be requested by the said person for the purpose of the proper
execution of the warrant.

9. — (1.) If a prisoner while in custody in pursuance o^ this Act, or Escape of
under a warrant i.ssued in pursuance of this Act, escapes, by breach of prisoner from
prison or otherwi.se, out of custody, he may be retaken in the same
manner as a person convicted of a crime against the law of the place to
which he escapes may be retaken upon an escape.

(2.) A person guilty of the offence of so escaping or of attempting so
to escape, or of aiding or attempting to aid any such prisoner so to
escape, may be tried in any of the following parts of Iler Majesty's

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custody.

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37 & 38 Vict.
C.27.

Application
of Act to re-
moval of
criminal luna-
tics.

Cost of 1
moval.

844

47 & 48 VICT. c. 31.— CRIM. LUNATICS.

[1884.

Power of legis-
lature of
British pos-
session to pass
laws for
carrying Act
into effect.

dominions, namely, the part to which and the part from whicli the
prisoner is being removed or returned, and tlie part in which the prisonpr
escapes, and the part in which the offender is found, and sueli ofFciiei'
shall be deemed to be an offence against the law of the part of Her
ilajesty's dominions in which he may be so tried, and for all ])urposes
of and incidental to the apprehension, trial, and punishment of the
person accused of such offence, and of and incidental to any procppdin<'s
and matters preliminary, incidental to, or consequential thereon, and of
and incidental to the jurisdiction of any court, constable, or officer with
reference to siich offence, and to the person accused thereof, such offeiuc
shall be deemed to have been committed in the said part, and suoh
person may be punished In accordance with the Courts (Colonial) Juris-
diction Act, 1874.

Criminal Lunatics,

10. — (!■) The pro\ isions of this Act shall apply to a person in custody
as a criminal lunatic m like manner, so far as consistent with tlir tenor
thereof, as they apply to a prisoner undergoing sentence of imprison-
ment ; and separate regulations may be made by Her Majesty in Council
under this Act in relation to criminal lunatics, and (subject to tliose
regulations) all laws and regulations in force in the part of Iler Majesty's
dominions in which a criminal lunatic removed or returned is for the
time being in custody under a warrant issued in pursuance of this Act
shall apply to such criminal lunatic as if he had become a criminal lunatic
in that part.

(2.) Where a person who is a criminal lunatic by reason of heinir
unfit to be tried for an offence is removed in pursuance of this Act, ami
a Secretary of State or the Government of the British possession to or
from which such person was removed considers that such peison has
become sufficiently sane to be tried for the said offence, and requires
him to be returned for trial to the British possession from which he was
removed, he shall, in accordance with the regulations under this Act, \k
returned as a prisoner to the said British po.ssession for the pinjose of
being there tried for the said offence, and shall be removed thither in
custody in like manner as if he had been arrested under a warrant on a
charge for the said offence.

Miscellaneous.

11. — (1.) Tlie cost of the removal of any prisoner or criminal lunatic
under this Act and of his maintenance while in confinement, and of his
return, and of his being sent after discharge to any place, sliall lie puiil
in such manner as may be arranged between the Governments of the
British [jos.sessions concerned and the Secretary of State, subject, as
regards any cost to be paid out of moneys provided by Parliament, to
the consent of the Commissioners of Her Majesty's Treasurv.

(2.) Nothing in this Act shall affect any power to recover the ex])enses
of removing or returning any prisoner or criminal limatic from the pro-
perty of such prisoner or criminal lunatic or otherwise.

12. If the legislature of a British possession pass any law —

(a) for determining the authority by whom and the manner in
which any jurisdiction, power, or concurrence under this
Act is to be exercised or given ; or

(b) for pa\ment of the costs incurred in the removal, maintemuur,
return, or sending back after discharge of a piisouer or
crimintU lunatic ; or

1884.]

47 & 48 VICT. c. 31.— TERMS USED.

845

(c) for dealing in such possession with prisoiiors or criniiniil luna-
tics removed thereto in pursuance of this Act ; or
(f/) for making any class of prisoners subject to removal under

this Act ; or
(e) otherwise in any manner for the carrying of this Act or any
part thereof into effect as regards tlie said possession,
it shall be lawful for Her Majesty in Council to direct that such law
or any part thereof shall with or without modification or alteration be
recoguised and given effect to throughout Her Majesty's dominions and
on tlie liigh seas as if it were part of this Act.

13, — (1-) It shall be lawful for Her Majesty in Council from time Power us to
to time to make Orders for the purposes of this Act, and to revoke and makitif; and
vary any Order so made, and every Order so made sliall while it is in J'^'vociitioii of
force have the same effect as if it were enacted in this Act. Coun ■ll '

(2.) An Order in Council made for the purposes of this Act shall be
kill before Parliament as soon as may be after it is made if Parliament
is then in session, or, if not, as .soon as may be after the commencement
of the then next session of Parliament.

Application of
Act to Channel
Islands and
Isle of Man.

Application of

Act to place

under foreign

jurisdiction

Acts.

See 41 &42

Vict. c. 67.

14. This Act shall extend to the Channel Islands and Isle of Man
as if they were part of England and the United Kingdom.

15. It shall be lawful for Her Majesty in Council from time to time
to direct that this Act shall api)ly as if, subject to the conditions, excep-
tions, and qualifications (if any) contained in the Order, any place out
of Her Majesty's dominions in which Her Majesty has jurisdiction,
and which is named in the Order, were a British possession and part
of Her Majesty's dominions, and to provide for carrying into effect such
uppliciition.

16. — ( 1 .) Nothing in this Act shall affect the provisions of the Army Savings.
Act, 18H1. 44 & 45 Vict.

(2.) Tliis Act shall not affect any agreement made either before or "• ^^•
after the passing of this Act under the Colonial Prisoners Removal Act, 32 & 33 Vict.
18G9, nor any provisions contained in the Act of the session of tlie c. 10.
fourteenth and fifteenth years of the reign of Her present Majesty,
chapter eighty-one, intituled " An Act to authorize the Removal from
India of Insane Persons charged with Offences, and to give better effect
to inquisitions of lunacy taken in India."

17. This Act shall apply to a prisoner who has been convicted, and to Application of
a criminal lunatic who has become a criminal lunatic before the passing Act to existing
of this Act, in like manner as if he had been convicted and become a prisoners and

<..• rti ni»» rtWi»v\iTinl lima

crimmal lunatic after the commencement or this Act.

criminal luna-
tics.

18. In this Act, unless the context otherwise requires, the following Definitions,
expressions have the following meanings ; that is to .say,

The expression "British possession" does not include any place within
the United Kingdom, the Isle of Man, or the Channel Islands, but
includes all other territories anil places being part of Her Majesty's
dominions, and idl territories and places within Her Majesty's dominions
which are not part of India and are under one legislature shall be deemed
to he one British possession, and any part of India under a Governor or
Lieutenant-Governor shall be deemed to be one British possession.

Tlie expression " India " means all territories and places within Her
Majesty's dominions which are subject to the Governor-General of India
in Council.

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846

1 & 2 VICT. c. 59.— COPYRIGHT ACTS.

[1834.

The expression " legislature," where there are local legislatures as well
as a central legislature, means the central legislature only, and in eviry
part of India means the Governor-General in Council.

The expression "Secretary of State' means one of Her Majesty's
Principal Secretaries of State.

The expression "Governor" means any person or i)ersons ndminis-
tering the government of a British possession, and includes the Governor-
General of India and also the Governor and Lieutenant-Governor of any
part of India.

The expression "Colonial Secretary" includes a person pprformin"
the like duties as a Colonial Secretary, whether known as GoviTiiment
Secretary, Chief Secretary tc the Government, or by any other title.

The expression " prison " includes any place for the confinement or
detention of prisoners whether convicted or unconvicted.

The expression " sentence of imprisonment " means any sentence
involving confinement in a prison, whether combined or not witii labour
and whether known as penal servitude, imprisonment with hard labour
rigorous imprisonment, imprisonment, or otherwise, and includes a sen-
tence awarded by way of commutation as well as an original sentence
passed by the court.

The expression "criminal lunatic" means a person detained in custody
by reason of his having been charged with an offence, and either found
10 have been insane at the time of such offence, or found or certified or
otherwise lawfully proved to be unfit on the ground of his insanity to l)e
tried for the same, and includes a person convicted of an offence and
afi«i""irds certified or otherwise lawfully proved to be insane.

["l^c- 43 and 49 Vict. (1885) c. 49., Protection of
Submarine Telegraph, and 50 & 51 Vict. c. 3., see
Dom. Acts 48 & 50 Vict, respectively.]

THE COPYRIGHT ACTS.

1 & 2 VICT. (1834) c. 59.

Repealed by 7 & 8 Vict. c. 12. [which see].

This Act was intituled "An Act for Securing to Authors
in certain cases the Benefit of International Copyright,"

5 & 6 VICT. (1842) c. 45.

Sees. I and 30 repealed by S. L. R. Act, 1874 (No. 2), 37 A 38 Vict.
c. 96. ; and S. L. 11. 1888 (No. 2), 51 & 62 Vict. c. 57., repealed the
following parts, namely, the words " And be it enacted that " wliereyer
they occur (except in sees. 9, 27, and 28), and the word " that," wherever
it occurs with reference to the introductory words so repealed. The
words " And be it enacted," in sees. 9, 27, and 28 ; sec. 13 to " pas-^ing
of this Act " ; Sec. 16 to " this Act" ; Sec. 17 to " passing of tliis Act."
Preamble ; Sec. 1 to " enact that " ; Sec. 5 to " enact that," and the

1842] 5 & 6 VICT. c. 45.— COPYRIGHT IN THE COLS. 847

word " tUnt " before " it sliall " ; Sec. 20 to " enact that " and the
word "that" before "the .sole," repealed by S. L. R. (No. 2) 1890,

53 & 51 Vict. c. 51. Sec. 14 from " Court of Common " to " vacation,"
from "by a motion" to "as aforesaid," and the words "or judge,"
oct'urrin" twice; Sec. 15, the words "after the passing of this Act"
repealed1)y S. L. R. Act, 1893, 56 Vict. c. 14.

This was an Act to amend the law of copyright. The
preamble repealed 8 Anne, c. 19. ; 41 Geo. 3. c. 107. and

54 Geo. 3. c. 156. By sec. 2 it was enacted that in the
construction of the Act the word " book " should include
every volume, part or division of a volume, pamplilet,
sheet of letter-press, sheet of music, map, chart, or plan
separately published : That the words " dramatic piece "
should include every tragedy, comedy, play, opera, farce,
or other scenic, musical, or dramatic entertainment ;
that the word " copyright " should mean " the sole and
exclusive liberty of printing or otherwise multiplying
copies of any subject to which the said word is herein
applied." That " personal representative " should mean
and include every executor, administrator, and next-of-
kin entitled to administration. That " assigns " should
mean every person in whom the interest of an author in
copyright shall be vested, whether derived from such
autiior before or after the publication of any book, and
whether acquired by sale, gift, bequest, or by operation
of law or otherwise. That the words " British domi-
nions " should be construed to mean and include all
parts of the United Kingdom of Great Britain and Ire-
land, the islands of Jersey and Guernsey, all parts of
the East and West Indies, and all the colonies, settle-
ments, and possessions of the Crown which now are, or
hereafter may be, acquired. Sees. 3 and 4 provided for
the endurance of the copyright. Sec. 6, that the Privy
Council might license the re-publication of books which
the proprietor of the copyright refused to re-publish
or to allow the re-publication of after the death of the
author. Sees. 6, 7, 8, 9, 10, 11, 12, 13, 14, referred
to delivery of copies to the libraries entitled to them,
and for registration of copyright, and sees. 15 and 16 for
remedy for piracy.

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848

& 6 VICT. c. 45— IMPORTED BOOKS.

[1842.

t ■

No person')
except the pro-
prietor, &c.
shall import in-
to the IJritiah
Dominions, for
sale or hire,
any book first
composed, &c.,
within the
United King-
dom and ro-
printod elso-
whoro, under
penalty of
forfeiture and
also £10 and
double the
value ; and
books may bo
seized by
officers of cus-
toms or excise.

Sec. 17 was as follows : " And he it enacted, that aftor
the passing of this Act it shall not he lawful for any
person not heinj^ the proprietor of tlie copyright, or sonic
person authorised hy him, to import into any part of the
United Kingdom, or into any other part of the liritish do-
minions, for sale or hire, any printed hook first composed
or written or printed and published in any part of the
said United Kingdom, wherein there shall he copyrio-lit
and re-printed in any country or place whatsoever out of
the British dominions, or if any person, not heing sucli
proprietor or person authorized as aforesaid, shall import
or hring, or cause to he imported or brought for sale or
hire, any such printed hook into any part of the British
dominions conti*ary to the true intent and meaning of
this Act, or shall knowingly sell, publish, or expose to
sale, or let to hire, or have in his possession for sale or
hire any such book, then every such book shall he for-
feited, and shall be seized by any officer of customs or
excise, and the same shall be destroyed by such officer ;
and every person so offending, being duly convicted
thereof before two justices of the peace for the county
or place in which such book shall be found, shall also for
every such offence forfeit the sum of £10, and double
the value of every copy of such book which he shall so
import or cause to be imported into any part of the
British dominions ; or shall knowingly sell, publish, or
expose to sale or let to hire, or shall cause to he sold,
published, or expensed to sale or let to hire, or shall have
in his possession for sale or biro contrary to the true
intent and meaning of this Act £5 to the use of such ofiScer
of customs or excise, and the remainder of the penalty
to the use of the proprietor of the copyright in such
book."

Sees. 18, 19, 20, 21, 22 dealt with the right of copy,
right in encyclopaedias, periodicals, reviews or magazines,
special arrangements between publisher of articles and
writer; and with music compositioDS and dramatic
pieces and assignment thereof.

wSi

1844] 7&H VICT. c. 12.— INTERNATIONAL COPYRIGHT. 849

Sees. 23 and 21 dealt with the property in pirated copies
and condition precedent to suing, namely, registration
of copyright.

Sec. 25, " And be it enacted that all copyright shall be copyright
deemed personal property, and shall be transmissible by ai'prop^crty.'°"'
l)equest, or in case of intestacy shall be subject to the
same law of distribution as other personal property, and
in Scotland shall be deemed to be personal and moveable
estate."

Sees. 26, 27, and 28 dealt with the general issue and
limitation of actions saving the rights of the British
Museum and the other libraries entitled to copies.

Sec. 29, " And be it enacted that this Act shall extend t:*'^"* of ^ci.
to the United Kingdom of Great Britain and Ireland,
and to every part of the British dominions." ^

By sec. 30 the Act might be amended in that session.
[See ante, p. 91.]

1 See the Canadian Acts with
reference to copyright, 4 & .'S Vict.
(1841) c. 61; 10 & 11 Vict. (1847)
0.28; C. S. C. (1859) c. 81; the
Copyright Act, 31 Vict. (1868)
c. 54 [this Act was reserved for
and obtained the assent of Her
Majesty in Council before it be-
came law] ; the Copyright Act,

38 Vict (1875) c. 88 [the ori-
ginal Act is c. 88 of the Canadian
Statutes of 1875, although there is
another Act passed in the same year
also called c. 88]. See this Act in
R. S. C. c. 62, vol. i., p. 925, and
given as a note to 38 & 39 Vict. c.
53, which Imperial Act gave effect
to the 38 Vict. (1875) c. 88.

7 & 8 VICT. (1844) c. 12.

Sections 1 and 21 repealed by S. L. R. Act, 1874 (No. 2), 37 & 38
Vict.c. 96; sections 14, 17, and 18 repealed by 49 & 50 Vict. (1886)
c. 33. s. 12, tohich see.

Preamble, the words " And be it enacted that" wherever they occur,
except in sees. 6, 7, and 12. The words " And be it enacted," in sees.
6, 7, and 12 ; sec. 13 the word " that " before " the times " ; sec. 20 from
" and the expression Her Majesty " to " Majesty," where it next occurs,
repealed by S. L. R. Act, 1891, 54 & 55 Vict. c. 57.

This was an Act relating to International Copyright.

The preamble and first section after citing the Acts 1 & 2 Vict,
c. 59. ; 5 & 6 Vict. c. 45. ; 4 Will. 4. c. 15. ; 8 Geo. 2. c. 13. ; 7 Geo. 3.
e. 38. ; 17 Geo. 3. c. 57. ; 6 & 7 Will. 4. c 59. ; 38 Geo. 3. c. 71. ; and
54 Geo. 3. c. 56. continued " And whereas the powers vested in Her
Majesty by the said International Copyright Act [1 & 2 Vict. c. 69 ]
are insufficient to enable Her Majesty to confer upon authors of books
S 2340. 3 H

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,«WH(Bg(!aw»et»«w««!«*wB»!a*^

850 7 & H VICT, c 12— FOREIGN COPYRIGHTS. [IS44

first published in foreign countries copyright of like duration, imd ^yio,
the like remedies for tlie infringement thereof, whieli arc conlcircd ami
piovid(Hl by tlie saiil Copyright Amendment Act witii re.Kpcut f<i aiiilmis
of books lirst published in the British dominions, and the siiid Jntciiin.
tional Copyright Act does not empcjwer Her Majesty to confer anv t x-
clusive right of representing or |)erforming dramatic pieces or luusicnl
compositions first published in foreign countries upon the authors thereof
nor to extend the privilege of copyright to prints and seulptuiu first
published abroad, and it is expedient to vest increased powers in Hrr
Majesty in this respect." The section then goes on to repeal tlie Inter
national Copyright Act, I <%. 2 Viet. c. 5ft. That being the niain
object of the Act, a summary of its further sections may sutlice.

By .sec. 2, Her Majesty by Onler in Council may direct that authors,
executors', &o., and assigns of such works [books, prints, articles of
sculpture, and otht^r works of art] first published in any foreign countiv
to be named should have copyright therein. The side note says " withiii
Her dominions."

By sec. 3, if the order applies to books the Copyright Amendment Act
[5 & G Vict. c. 45], and any other Act in force relating to copyriobt
in books first published in this country .shall apply to those to which tho
order relates, and which shall have been registered in the same lanner
as if such books were first published in the United Kingdom.

By sec. 4, it was provided if the order ajjplied to prints, articR\s of
sculpture, or to any such works of art, the Copyright law as to prints
and sculpture, &c. first published in this country shall be applied to
those to which the order relates.

By sec. 5, an Order in Council may direct that authors of dramatic
pieces and rausiexil compositions first publicly represented and [wr-
formed in any foreign countries shall have the sole liberty of repre-
senting in any part of the Britifih dominions such dramatic pieces or
musical compositions during such period as shall be defined in such
order, not exceeding the period allowed to authors, &c. of such works
within the United Kingdom.

By sec. 6, foreign authors were not to have the nbo\c privileges,
unless the book or work was registered at Stationers' Hall, London, and
a copy, if printed, delivered. Sees. 7, 8, 9 referred to registration,
where the book was published anonymously, that the provisions given in
Copyright Amendment Act, 5 & 6 Vict. c. 45. as to registration, shonlii
apply, and that wrongful entry of first publication might be e.ximnged.

By sec. 10, copies of books wherein copyright is subsi.sting under
virtue of this Act, printed or re-printed in any country other than those
wherein the book was first published, the .same were absolutely prohibited
to be imported into any part of the British dominions, except with consent
of the registed proprietor, &c. of the copyright.

By sec. 11, Stationers' Hall was to deliver books depo.sitcd there to
the British Museum. By sec. 12, a copy of any subsequent edition
need not be delivered to Stationers' Hall unless it contain alterations.
By sec. 13, the Orders in Council may specify different periods foi'
different countries and works. By .sec. 14, no Order in Council wiis
to have effect unless it was stated, as the grounds for issuing the same,
that reciprocal protection ha.s been secured for works first published in
Her Majesty's dominions. By sec. 15, Orders are to be published in
the Gazette. By sec. 16, to be laid before Parliament. By sec. 1",
Orders may be revoketl or altered from time to time. By sec. 18, if
was provided that nothing in this Act contained shall be construed to
prevent the printing, publication, or sale of any translation of any book,

HTS. [1844.

1844] H & 9 VICT. c. 03.— CUSTOMS AND BOOKS. 851

the author wbereof and hi.s as.signs may be entitled to the benefit of this
Act. By «<'<■• 10, auiliors oi' works fiist |)iil)lisbi'd in forei<;n countries,
were not to have any copyr";?-! therein or exchisive right to ropre.sentn-
tion, &e., otherwise than such as he may become entitled to under thi.s
Act, Sec. 20 was the interpretation clause, and it enact/'d that in the
constrnotion of this Act the word " bonk " .xhall be construed to include
"volimic," "pamphlet," "sheet ol' letter press," "sheet of music,"
"mni)," " chart," or " plan," and the expression " articles of sculpture "
shnll mean all such sculptures, models, copies, and casts as are described
in the Sculpture Copyright Acts [38 Geo. 3. c. 71. and 54 Geo. 3. c. 50.],
and the words ♦' printing " and " reprinting " shall include engraving
and any other method of multiplying copies. Then, after giving the
general interpretation of the meaning of the expressions " Her Majesty "
and " Order of Her Majesty in Council," " office of the Company of
Stationers," the section enacted that any word importing the i)lural of
any person or thing shall mean also the singular, and I'ice versa, and
any word importing the ma.sculiiie shall also mean the feminine gender.
By sec. 21 the Act might be amended in that session.

8 & 9 VICT. (1845) c. 93.
Repealed by 16 & 17 Vict. c. 107. s. 358.

Tliis was an Act to regulate the trade of British pos-
sessions abroad. By f^c. 9 it was enacted, That any
hooks wherein the copyright shall be subsisting, first
composed or written or printed in the United Kingdom,
and printed or re-printed in any other country, shall be
and are hereby absolutely prohibited to be imported into
British possessions abroad : Provided always, that no such
books shall be prohibited to be imported as aforesaid,
unless the proprietor of such copyright, or his agent,
shall have given notice in writing to the commissioners
of customs that such copyright subsists, and in such
notice shall have stated when the copyright w^ill expire ;
and the said commissioners shall cause to be made, and
to be publicly exposed at the several ports in the British
possessions abroad from time to time, printed lists of
hooks respecting which such notice shall have beet
given, and all books imported contrary thereto shall b».
forfeited."

By sec. 63 it was enacted that all laws in force in
any of the British possessions in America repugnant to
this Act shall be void. See for full w^ords of section,
10 & 11 Vict. c. 95.

3h 2

Ij. !i

I i: y il

862

10 A 11 VICT. 0, OS—CUSTOMS REG.

1S47,

The 16 & 17 Vict. c. 107. was a Customs Act, and
although it ropoalod 8 & 9 Vict. c. Q). ; hy sec. 11 the
importation into the United Kingdom of the follow.
ing goods was ahsohitely prohihitcd : " Books wlieivin
the copyright shall be first subsisting, first composed,
or written or printed in the United Kingdom, and
printed or reprinted in any other country, as 1' Meh
the proprietor of such copyright, or his agci ..all
have given to the Commissioners of Customs a notice
in writing that such copyright subsists, such notice
also stating when such copyright will expire." And
by sec. 46 " The Commissioners of Customs shall cause
to be made and publicly exposed at the several ports in
the United Kingdom and in Her Majesty's possessions
abroad printed lists of all books wherein the copyright
shall be subsisting, and as to which " the above notice has
been given. Re-enacted by 39 & 40 Vict. c. 30. ss. 42
and 44, but the notice to the several ports was confined
to the United Kingdom. Sec. 42 of this Act was ex-
tended by 52 & 53 Vict. (1889) c. 42. s. 1, by ^ ding
in the exclusion "books first published in an try

or state, other than the United Kingdom, wherein,
under the International Copyright Act, 188G, or any
other Act, or Order in Council made under the iiutliority
of any Act, there is a subsisting copyright in the United
Kingdom, printed or reprinted in any country or state
other than the country or state in which they were first
published, and as to which the owner of the copyright,
or his agent," gives a notice as in sec. 44 of 39 & 10
Vict. c. 36. aS'^^ U.S. Copyright Act, 3 March, 1891.
Amended by tit. 60. c. 3. R.S. U.S. 1878. p. 957.
ss. 49. 48. et seq.

10 «fc 11 VICT. (1847) c. 95.

Sec. 3 repealed by S. L. R. Act, 1875, 38 & 39 Vict.
c. 66. Preamble and sec. 1 to " same that," Sec. 2 to
" enacted that " and the word " tbat " before " a copy,"'
repealed by S. L. R. Act, 1891, 54 & 55 Vict. c. 67.

1HJ7.I 10 A 11 VICT, c. i>5.— COLONIAL PKOTKCTIOX 853

All Act to amend the Law relating to the Pro-
tection in the Colonies of Works entitled to
Copyright in the United Kingdom.

WHEREAS l)y an Act passed in the session of Par-
liament holdcn in the fifth and sixth years of Her
Majesty, intituled " An Aot to amend the Law of Copy-
right," it is amongst other things enacted that it shall
not 1)0 lawful for any person not heing the proprietor of
the copyright, or some person authorized hy him, to im-
port into any part of the Unitefl Kingdom, or into any
other part of the British dominioiis, fcr sale or hire, any
printed book first composed or writun or printed or pub-
lishtnl in any part of the United Kingdom wherein there
shall bo copyright, and reprinting in any country or
place whatsoever out of the British dominions : And
whereas by an Act passed in the session of Parliament
holden in the eighth and ninth years of the reign of Her
present Majesty, intituled " An Act to liegulate the
Trade of the British Possessions abroad," books wherein
the copyright is subsisting, first composed, or written
or printed in the United Kingdom, and printed or re-
printed in any other country, are a])solutely prohibited
to he imported into the British possessions abroad : And
whereas l)y the said last recited Act it is enacted [see
sec. 63], that "all laws, bye-laws, usages or customs [at
this time or which hereafter shall be] in practice, or
endeavoured or pretended to be in force or practice in
any of the British possessions in America, which are in
any wise repugnant to the said Act [8 & 9 Vict. c. 93.],
or to any Act of Parliament made or [hereafter] to
he made in the Unit(!d Kingdom, so far as such Act
shall relate to and mentioE the said possessions, are and
shall be null and void to all intents and purposes what-
soever."

Now be it enacted by the Queen's most Excel-
lent Majesty, by and with the advice of the Lords
Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same

5 & 6 Vict,
c. 45.

8 & 9 Vict,
c. 93.

Her Majesty
may suspend in
certain cases
the prohibition
against the ad-
mission of
books into the
colonics.

iii

iittiiiiiiiiiililiii^

lii

J : M-

Orders in
Council to lie
publisheil in
the Gazette and
to be laid
before Par-
liament.

85i 10 & 1 1 VICT. c. 95.— PI?OHIBlTIONS SUSPENDED. [1S17

that in case the legislature or proper legislative autlio-
rity in any British possession shall he disposed to make
due provision for securing or protecting the Rights of
British authors in such possession, and shall pass an Act
or make an ordinance for that purpose, and shall trans-
mit the same in the proper manner to the Secretary of
State, in oi'der that it may he submitted to Her ^ilajesty,
and in case Her Majesty shall be of opinion tliat such
Act or ordinance is sufl&cient for the purpose of securing
to British authors reasonable protection v.ithin such
possession, it shall be lawful for Her Majesty, if she
think fit so to do, to express her royal approval of such
Act or ordinance, and thereupon to issue an Order in
Council declaring that so long as the provisions of such
Act or ordinance continue in force within such colony
the prohibitions contained in the aforesaid Acts and
herein-bef ore recited, and any prohibitions contained in
the said Acts or in any other Acts, against the importing,
selling, letting out to hire, exposing for sale or hire, or
possessing foreign reprints of books first composed,
written, printed, or published in the United Kingdom,
and entitled to copyright therein, shall be suspended so
far as regards such colony, and thereupon such Act or
ordinance shall come into operation, except so far as
may be otherwise provided therein, or as may bo other-
wise directed by such Order in Council, anything in tlio
said last recited Act or in any other Act to the contrary
notwithstanding.

2, And be it enacted. That every such Order inCoim-
cil shall within one week after the issuing thereof he
published in the London Gazette, and that a copy thereof
and of every such Colonial Act or ordinance so approyed
as aforesaid by Her Majesty shall be laid before both
Houses of Parliament within six weeks after the issuing
of such order, if Parliament be then sitting, or if Par-
liament be not then sitting, then within six weeks after
the opening of the next session of Parliament.

SPENDEl). [1M7

1S75 j .{H & -.id VICT. c. 53.— COPYRIftHT AND CAN. LEO. 855

3. And be it enacted, That this Act may be amended ^^,^^^7 '^ ""
or repealed by any Act to be passed in the present session
of Parliament. ^See the next Act and 19 & 50 Vict,
c. 33.]

38 & 39 VICT. (1875) c. 53.

Preamble, and to " same as follows " repealed by
S. L. 11. Act 1893 (No. 2) e. 54.

An Act to give effect to an Act of Parliament of
the Dominion of Canada respecting Copyright.

[2nd Aug. 1875.]

WHEREAS by an Order of Her Majesty in Council,
dated the 7th day of July 1868, it was ordered
that all prohibitions contained in Acts of the Imperial
Parliament against the importing into the Province of
Canada, or against the selling, letting out to hire, ex-
posing for sale or hire, or possessing therein foreign
reprints of books first composed, written, printed, or
published in the United Kingdom, and entitled to copy-
right therein, should be suspended so far as regarded
Canada :

And whereas the Senate and House of Commons of
Canada did, in the second session of the third Parliament
of the Dominion of Canada, held in the thirty-eighth
year of Her Majesty's reign, pass a Hill intituled " An
Act respecting Copyrights," which Bill has been re-
served by the Governor-General for the signification of
Her Majesty's pleasure thereon :

And whereas by the said reserved Bill provision is
made, subject to such conditions as in the said Bill are
mentioned, for securing in Canada the rimhts of authors
in respect of matters of copyright, and for prohibiting
the importation into Canada of any work for which
copyright under the said reserved Bill has been secured ;
and whereas doubts have arisen whether the said re-
served Bill may not be repugnant to the said Order in

1 1

Short title of
Act.

Definition of
terms.

Her Majesty
may assent to
the Bill in
schedule.

Colonial re-
prints not to
be imported
into United
Kingdom.

856 38 & 39 VICT. c. 53.— AUTHORIZED CAN. ACT. [1875.

Council, and it is expedient to remove such doubts and
to confirm the said Bill :

Be it enacted hy the Queen's most Excellent Majesty,
by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same,
as follows :

1. This Act may be cited for ali purposes as " The
Canada Copyright Act, 1875."

2. In the construction of this Act the words " l)ook "
and *• copyright " shall have respectively the same mean-
ing as in the Act of the fifth and sixth years of Her
Majesty's reign, chapter forty-five, intituled " An Act
to amend the Law of Cr'uy right."

3. It shall be lawful for Her Majesty in Council to
assent to the said reserved Bill, as contained in the
schedule to this Act annexed, and if Her Majesty shall
be pleased to signify her assent thereto, the said Bill
shall come into operation at such time and in such
manner as Her Majesty may by Order in Council direct ;
anything in the Act of the twenty-eighth and twenty-
ninth years of the reign of Her Majesty, chapter
ninety-three, or in any other Act to the contrary not-
mthstanding.

4. Where any book in which, at the time when the
said reserved Bill comes into operation, there is copy-
right in the United Kingdom, or any book in which
thereafter there shall be such copyright, becomes en-
titled to copyright in Canada in pursuance of the pro-
visions of the said reserved Bill, it shall be unlawful
for any person, not being the owner, in the United
Kingdom, of the copyright in such book, or some person
authorized by him, to import into the United Kingdom
any copies of such book reprinted or republished in
Canada ; and for the purposes of sucli importation tlic
seventeenth section of the said Act of the fifth and sixth

OSes as " The

1875.]

38 & 39 VICT. c. 53.— CANADIAN ACT.

657

vears of the reign of Her Majesty, chapter forty-five,
shall apply to all such books in the same manner as if
they had been reprinted out of the British dominions.

5. The said Order in Council, dated the seventh day order in ^
of July one thousand eight hundred and sixty-eight, 7th July ms
shall continue in force so far as relates to books which forc8°subjecuo
are not entitled to copyright for the time being, in pur- '^'* ^''**
suance of the said reserved Bill.

See sub.-sec. 23, sec. 91, B. N. A. Act, ante p. 91.

SCHEDULE.

An Act respecting Copp'ights.

Her Majesty, by and with the advice and consent of
the Senate and House of Commons of Canada, enacts

as follows : —

1. The Minister of Agriculture shall cause to be kept
in his oiBice books to be called the " Registers of Copy-
rights," in which proprietors of literary, scientific, and
artistic Avorks or compositions may have the same regis-
tered in accordance Avith the provisions of this Act.

2. The Minister of Agriculture may, from time to
time, subject to the approval of the Governor in Council,
make such rules and regulations and prescribe such
forms as may appear to him necessary and expedient for
the purposes of this Act ; such regulations and forms,
being circulated in print for the use of the public, shall
be deemed to be correct for the purposes of this Act,
and all documents executed and accepted by the said
Minister of Agriculture shaU be held valid so far as
relates to all ofiicial proceedings under this Act.

3. If any person prints or publishes, or causes to be
printed or published, any manuscript whatever, the said
manuscript having not yet been printed in Canada or
elsewhere, without the consent of the author or legal
proprietor first obtained, such person shall be liable to
the author or proprietor foi all damages occasioned by

.jAj^kM^h^

-fl

858 38 .t 30 VICT. c. 53.— CANADIAN COPYRIGHT.

[IK

10.

such publication, to be recovered in any court of com-
petent jurisdiction.

4. .A.ny i)erson domiciled in Canada, or in any part of
the British possessions, or being a citizen of any country
having an international copyright treaty with tlio United
Kingdom, who is the author of any book, map, chart, or
musical composition, or of any original painting, drawing,
statue, sculpture, or photograph, or who invents, designs,
etches, engraves, or causes to be engraved, etched, or
made from his own design, any print or engraving, and
the legal representatives of such person, shall have the
sole right and liberty of printing, reprinting, publishin",
reproducing, and vending such literary, scientific, or
artistic works or compositions, in whole or in part, and
of allowing translations to be printed or reprinted and
sold, of such literary works from one language into other
languages, for the term of twenty-eight years from the
time of recording the copyright thereof in the manner
herein-after directed ;

(2.) The condition for obtaining such copyright shall
be that the said literary, scientific, or artistic
works be printed and published, or reprinted
or republished in Canada, or in the case of
works of art that it be produced or reproduced
in Canada, whether they be so published or
produced for the first time or contempora-
neously with or subsequently to publication or
production elsewhere : provided that in no
case the exclusive privilege in Canada shall
continue to exist after it has expired any-
where else.

(3.) No immoral, or licentious, or irreligious, or
treasonable, or seditious literary, scientific, or
artistic work shall be the legitimate subject of
such registration or copyright.

5. If at the expiration of the aforesaid term of twenty-
eight years, such author, or any of the authors when the
work has been originally composed and made by more

IH75.] 38 & 39 VICT. c. 53.-l{ENEWAL IN CANADA. 859

than one person, be still living, or being dead li^is left a
widow or a child or children living, the same exoiusive
right shall be continued to such author, or, if dead, then
to such Avidow and child or children (as the case may be)
for the further term of fourteen years ; but in such case
within one year after the expiration of the first term the
title of the work secured shall be a second time recorded,
and all other regulations herein required to be observed
in regard to original copyrights shall be complied with
in respect to such renewed copyright.

6. In all cases of renewal of copyright under this Act
the author or proprietor shall, within two months from
the date of si;ch renewal, cause a copy of the record
thereof to be published once in the " Canada Gazette."

7. No person shall be entitled to the benefit of this
Act unless he has deposited in the oflBce of the Minister
of Agriculture tAvo copies of such book, map, chart,
musicjil composition, photograph, print, cut, or engraving,
and in case of paintings, drawings, statuary, and sculp-
ture, unless he has furnished a written description of
such A\orks of art, and the Minister of Agriculture shall
cause the copyright of the same to be recorded forthwith
in a book to be kept for that purpose, in the manner
adopted by the Minister of Agriculture, or prescribed by
the rules and forms wliich may be made from time to
time as herein-before provided.

8. The Minister of Agriculture shall cause one of the
two copies of such book, map, chart, musical composi-
tion, photogmph, print, cut, or engraving aforesaid, to
he deposited in the Library of the Parliament of Canada.

9. Xo person shall be entitled to the benefit of this
Act, unless he gives information of the copyright being
secured, by causing to be inserted in the several copies
of every edition published during the term secured, on
the title page, or the page immediately following, if it
be a book, or if a map, chart, musical composition, print,
cut, engraving, or photogmph, by causing to be im-
pressed on the face thereof, or if a volume of maps,

860 3S & 39 VICT. V. 53.— INTERIM COPYRIGHT. [1h7o.

charts, music, engravings, or photographs, upon the title
page or frontispiece thereof, the following words, that
is to say : " Entered according to Act of Parliament of
Canada, in the year , hy A.B., in

the office of the Minister of Agriculture." But as re-
gards paintings, drawings, statuary, and sculptures, the
signature of the artist shall he deemed a sufficient notice
of such proprietorship.

10. Pending the puhlication or republication in Canada
of a literary, scientific, or artistic work, the author, or
his legal representatives or assigns, may obtain an interim
copyright by depositing in the office of the Minister of
Agriculture a copy of the title, or a designation of such
work intended for publication or republication in Canada,
the said title or designation to be registered in an interim
copyright register in the said office, to secure to the
author aforesaid, or his legal representatives or assigns,
the exclusive rights recognised by this Act, previous to
publication or repubhcation in Canada ; the said interim
registration, hoAvever, not to endure for more than one
month from the date of the original publication else-
where, within which period the work shall be printed or
reprinted and published in Canada.

(2.) In all cases of interim registration under this
Act, the author or proprietor shall cause notice
of such registration to be inserted once in the
" Canada Gazette. "

(3.) A literary work intended to be published m
pamphlet or book form, but which is first pub-
lished in separate articles in a newspaper or
periodical, may be the subject of registration
within the meaning of this Act while it is so
preliminarily published, provided that the
title of the manuscript and a short analysis
of the work are deposited in the office of
the Minister of Agriculture, and that every
separate article so published is preceded hy
the words *' llegist«'red in accordance A\ith the

T^f

1873.]

38 & 39 VICT. c. 53.— MAOAZINES FREE.

861

Copyriprht Act of 1875 : " but the work when
published in book or pamphlet form shall be
subject, besides, to the other requirements of
this Act.

(•t.) The importation of newspapers and magazines
published in foreign countries, and containing,
together with foreign original matter, portions
of British copyright works republished with
the consent of the author or his assigns or
under the law of the country where such copy-
right exists, shall not be prohibited.

11. If any other person after the interim registration
of the title of any book according to this Act within the
term herein limited, or after the copyright is secured,
and for the term or terms of its duration, prints, pub-
lishes, or reprints or republishes, or imports, or causes
to be so printed, published, or imported, any copy or any
translation of such book without the consent of the
person legally entitled to the copyright thereof first had
and obtained by assignment, or knowing the same to be
so printed or imported publishes, sells, or exposes for
sale, or causes to be published, sold, or exposed for sale,
any copy of such book without such consent, such offen-
der shall forfeit every copy of such book to the person
then legally entitled to the copyright thereof ; and shall
forfeit and pay for every such copy which may be found
in iiis possession, either printed or printing, published,
imported, or exposed for sale, contrary to the intent of
this Act, such sum not being less than ten cents nor
more than one dollar as the court shall determine ; of
wliich penalty one moiety shall be to the use of Her
Majesty, and the other to the legal owner of such copy-
right, and such penalty may be recovered in any court
of competent jurisdiction,

12. If any person after the recording of any painting,
dramng, statue, or other work of art within the term
or terms limited by this Act, reproduces in any manner,
or causes to be reproduced, made, or sold, in whole or

! i

I i

i ;i

i I

.! ■'

862

38 & 39 VrCT. c. 33.— EVASION.

[iH-o.

in part, copies of the said works of art without the con-
sent of the proprietor or proprietors, such offeiidor or
offenders shall forfeit the plate or plates on which such
reproduction has been made, and also every sheet thereof
so copied, printed, or photographed, to the proprietor or
proprietors of the copyright thereof, and shall further
forfeit for every sheet of tlie same reproduction so puh.
lished or exposed for sale, contrary to the true intent
and meaning of this Act, such sum, not being less than
ten cents nor more than one dollar, as the coiu't shall
determine ; and one moiety of such forfeiture shall go
to the proprietor or proprietors, and the other moiety to
the use of Her Majesty, and such forfeiture may he
recovered in any court of competent jurisdiction.

13. If any person, after the recording of any print,
cut, or engraving, map, chart, musical composition, or
photograph, according to the provisions of this Act,
within the term or terms limited by this Act, engraves,
etches, or works, sells or copies, or causes to be engraved,
etched, or copied, made or sold, either in the whole or
by varying, adding to, or diminishing the main design
with intent to evade the law, or prints, or reprints, or
imports for sale, or causes to be so printed or imported
for sale, any such map, chart, musical composition, print,
cut, or engraving, or any part thereof, Avithout the con-
sent of the proprietor or proprietors of the copyright
thereof first obtained as aforesaid, or knowing the same
to be so printed or imported without such consent, pub-
lishes, sells, or exposes for sale, or in any manner disposes
of any such map, chart, musical composition, engraving,
cut, photograph, or print without such consent as afore-
said, such offender or offenders, shall forfeit the plate or
plates on which such map, chart, musical composition,
engraving, cut, photograph, or print has been copied,
and also every sheet thereof so copied or printed as
aforesaid, to the proprietor or proprietors of the copy-
right thereof, and shall further forfeit for every sheet of
sueh map, musical composition, print, cut, or engraving

1875.]

38 & 39 VICT. c. 63.— PIRACY PENALTY

863

, or engravms;

which may be found, in his or their possession, printed
or published or exposed for sah> contrary to the tiue
intent and meaning of this Act, such sum not being less
than ten cents nor more than one dollar as the court
shall determine ; and one moiety of such forfeiture shall
ffo to the proprietor or proprietors, and the other moiety
to the use of Her Majesty, and such forfeiture may be
recovered in any court of competent jurisdiction.

14. Nothing herein contained shall prejudice the right
of any person to represent any scene or object, notwith-
standing that there may be copyright in some other re-
presentation of such scene or object.

15. Works of which the copyright has been granted
and is subsisting in the United Kingdom, and copyright
of which is not secured or subsisting in Canada under
any Canadian or Provincial Act, shall, upon being printed
and published or reprinted and republished in Canada,
be entitled to copyright under this Act ; but nothing in
this Act shall be held to prohibit the importation from
the United Kingdom of copies of such works legally
printed there. \^See Smiles v. Belfordy ante, p. 91.]

(2.) In the case of the reprinting of any such copy-
right work subsequent to its publication in the
United Kingdom, any person who may have
previous to the date of entry of such work
upon the registers of copyright imported any
foreign reprints, shall have the privilege of
disposing of such reprints by sale or otherwise ;
the burden of proof, however, in such a case
will lie with such person to establish the extent
and regularity of the transaction,

16. Whenever the author of a literary, scientific, or
artistic work or composition which may be the subject
of copyright has executed the same for another person
or has sold the same to another person for due consider-
ation, such author shall not be entitled to obtain or to
retain the proprietorship of such copyright, which is
l)y the said transaction virtually transferred to the pur-

) !'

, I

864 38 & 39 VICT. 0. 53.— FALSE ASSERTIONS. fiH75

chaser who may avail himself of such privile»e, unless a
reserve of the said privilege is specially made hv tlic
author or artist in a deed duly executed.

17. If any person, not having legally acquired the
copyright of a literary, scientific, or artistic work, inserts
in any copy thereof printed, produced, reproduced, or
imported, or impresses on any such copy that the same
hath been entered according to this Act, or words pur.
porting to assert the existence of a Canadian Copyriwlit
in relation thereto, every person so offending shall incur
a penalty not exceeding three liundred dollars (one moietv
whereof sliall be paid to the person who sues for the
same, and the other moiety to the use of Her Majesty),
to be recovered in any court of competent jurisdiction.

(2.) If any person causes any work to be inserted in
the Register of Interim Copyright and fails to
print and publish or reprint and republish the
same within the time prescribed, he shall incur
a penalty not exceeding one hundred dollars
(one moiety whereof shall be paid to the per-
son who sueth for the same, and the other
moiety to the use of Her Majesty), to be re-
covered in any court of competent jurisdiction,

18. The right of an author of a literary, scientific, or
artistic work to obtain a copyright, and the copyriglit
when obtained shall be assignable in law, either as to
the whole interest or any part thereof, by an instrument
in writing made in duplicate, and to be recorded in the
office of the Minister of Agriculture, on production of
both duplicates and payment of the fee herein-after pro-
vided. One of the duplicates shall be retained in the
office of the Minister of Agriculture, and the other re-
turned, with the certificate of registration, to tlie party
depositing it.

19. In case of any person making application to
register as liis own the copyright of a literary, scientific,
or artistic work already registered in another person's
name, or in case of simultaneous conflicting applications

1875.]

3ft & 39 VICT. c. 53.— PROOF OF COPIES.

865

or of an application made by any person other than the
person ontored as proprietor of a rejijistered copyright,
to cancel the said copyrii.^ht, the party so applying shall
he notlliod that the ([uestion is to be settled before a
court of competent jurisdiction, and no further proceed-
ings shall be had concerning the subject before a judg-
iiieiit is produced, maintaining, cancelling, or otherwise
settling the matter ; and this registration, or cancellation,
or adjnstnKMit of the said right shall then Ix; made by
tli(> Minister of Agriculture in accordance with such
decision.

20. Clerical errors happening in tlu^ framing or copy-
in;; of any instrument drawn in the office of the Minister
of Agricultun; shall not be construed as invalidating the
same, hut when discoA'cred they may be corrected under
the authority of the Minister of Agriculture.

21. All C()i)ies or extracts certified from the officer of
the ^linister of Agriculture shall be received in evidence
without further proof, and without production of the
i)nn;inals.

22. Sliould a work copyrighted in Cci )i ad a ]mcomc out
of print, a complaint may be lodged by any person with
the ^liuister of Agriculture, Avho, on the fact being as-
certained to his satisfaction, shall notify the copyright
owner of the complaint and of the fact ; and if, wdthin
a reasonable time, no remedy is applied by such owner,
the Minister of Agriculture may grant a license to any
person to publish a new edition or to import the work,
specifying the number of copies, and the royalty to be
paid on each to the copyright owner.

23. The application for the registration of an interim
copyri;,fht, of a temporary co])j right, and of a copyright
may he made in the name of the author or of his legal
rejjrcsentative by any ])erson purporting to be the agent
of the said author, and any fraudulent assumption of
such authority shall be a misdemeanor, and shall be
punished by fine and imprisonment accordingly ; and
any damage caused by a fraudulent or an erroneous

S 2340 - 3 I

', iJ,

: )

I .

'■ ■ l

866

38 & 30 VICT. c. 63— FALSE ENTRIES.

[1H73.

assumption of sucli authority shall ho recovcniljlc before
any court of competent jurisdiction.

24. If any person shall wilfully make or cause to bo
made any false entry hi the repjistry hooks ol" the Min-
ister of Agriculture, or shall wilfully produce or caiiso
to he tendered in evidence any paper Talsely pmpnrtini,'
to he a copy of an entry in the said hooks, li(> shall he
guilty of a misdemeanor, and shall he punislicd accor-
dingly.

25. If a hook he puhlishcd anonymously it shall \w
sufficient to enter it in the name of the lirst piihlishcr
thereof, either on hshalf of the unnamed anthororou
hehalf of such first publisher, as the case may he.

26. It shall not ho requisite to deliver any printed
copy of the second or of any suhsequent (Mlition of any
hook or hooks unless the same shall contain very iin})or.
tant alterations or additioiis.

27. No act or prosecution for the recovery of any
penalty under this Act shall he commenced mon; than
two years after the cjuise of action arose.

The following fees shall he payable to the Minister ol
Agriculture before an application for any of the pmposcs
herein-after mentioned shall he entertained ; that is to

say,

Dol.

On registering a copyright - - 1

On registering an interim copyright - 0

On registering a temporary copy ri ght - 0

On recording an assignment - - 1

On certified copy of registration - 0
On registering any decision of a f'ourt

of justice, for every folio • 0

50
00

r.o

i)0

On office copies of documents
the following charges shall he made

above n\eiit.
Dol. c.

For every single or first folio certified
copy

0 50

^1 ^

1875,

38 k 39 VICT. c. 33.

-CANADIAN PEES.
Dol.

867

('.

For every suhsoquent one hundred
words (fraction.s from and under
fifty IxMiiLf not counted, and over
tlfty being counted for one liundr<Ml) 0

(2.) The said fees shall l)e in fidl of all services ])ov-
forined undcM* this Act by the Minister of
Au,riculture, or by any person employed by bim
in pursuance of tins Act.

(3.) All fees received under this Act shall be paid
over to the lleceiver General and form part
of the Consolidated R(»venue Fund of Canada.
Xo fees .shall be made the subject of excMuption
in favour of any person, and no fee exacted by
this Act, once paid, shall be returned to the
person who paid it.

28. " The Copyright Act of 1868," [Dominion Act]
IjiMii!^ the Act thirty-tii'st Victoria, chapter fifty-four,
1111(1 all other Acts or parts of Acts inconsistent with the
provisions of this Act, are here})y repealed, subject to
the provisions of the next following section.

29. All co])yrights heretofore acquired under the Acts
ov ])aits of Acts repealed shall, in respect of the unex-
liiicd terms thereof, continue unimpaired, and shall have
tlip same force and effect as regards the province or
provinces to a> liich they now extend, and shall be assign-
able and rencAvable, and all penalties and forfeitures in-
clined and to be incurred under the same may be sued
for and (niforced, and all prosecutions commenced before
the passing of this Act for any such penalties or for-
I'eituivs already incurred may be continued and com-
pleted as if such Acts were not repealed.

30. In citing this Act it shall be sufficient to call it
"The Copyright Act of 1875." [See International
copyright Act, 49 & 50 Vict. c. 33. post.]

3i 2

•i\

' i'

868 49 & 50 VICT. c. 33.— INTER. COL. COPYRIGHT.

[im.

49 & 50 VICT. c. 33.

Short titles iilld
coiistriR'tion.

Aniendnit'iit tis
to extent anil
I'tfect ot'oi'ilel'
uniler Intei'-
natidnal
Copyrijilil
Act*.

An Act to aineiul the Law respecting International and
Colonial Co])yriglit. [25 June IbSO.]

WHICUEAS hy tlui Inti^rimtiomil Copyrigh* Acts Her ^lajcsty is
autliori/,»'(l hy Order in Council to (lireet tin.t ns regards litcriiiv
iind artistic works livst published iu ti foreign country the aulhnr sli.'.fl
have copyriglit therein during the period specilied in the onlcf, not
exceednig tlie period (hiring which authors of the like works liist |iiili.
lisheii in the I'nited Kingdom have copyright :

And wlieieas at an international conference held at Ihrnr in tlio
month of Septeml)er one thousand eight hundred and eighty-li\c a diiil't
of a convention was agreed to for giving to authors of liier.uy ami
artistic works lirst published in one of the countries parties to the emi-
veiition copyright in such works throughout the otlier countries parties
to the convention :

Ami wluMcas, without the authority of Parliament, such conveiiiiuu
cannot lie carried into effect in Her Majesty's dominions and coiim;-
(piently Her Majesty cannot become a party theicto, and it is ex|ii'(iiii.t
to cnaidi' Her Majesty to accede to the convention :

He it tlierefore enacted by the Queen's most Excellent Majesty. Lr
aiul with the advice iiiid consent of tlie Lords Spiritual and 'reiii|H)iai,
and (."onunons, in this present Parliament assembled, and hy the auliie
rity of the same, as follows:

1. — (1.) This Act mav be cited as the Interuatiomd Copyriglit Aet.
18S(5.

(2.) The Acts specified in the first part of the First Schedule tdtliis
Act are in this Act rcferr«'d to and may be cited by the short titles in
that schedule meu'ioned, and those A' ts, together with liie eiiaeiiiieiii
specilied in the second pari of the s^aid schedule, arc in this .\el eollee
tively referred to as the International Cojiyriglil Acts.

TIic Ads s|)ecilicd in the Second Schc<luli' to ''is Act may lie ciied
by the short titles in that schedule mentioned, and those Aets are in
this Act referred to, anti may be citetl collectively as the ('(iii)iij.'iit
Ads.

(3.) This Ac. i.iid the Internatioiiul Copyright Acts shall be (oiistriiid
together, and may be cited together as the Interuational Copvriglit Aits,
IHH to IHHO.

2. The following provisions shall apply to an Order in ('(niiieiliindir
the International Copyright Acts: —

(I.) 'I'he order may extend to dl the several foreign countries imnieil
or descril)ed therein :

(2.) The oilier may j'xclude or limit the rights conferred liy the Inter-
national Copyright Acts in the ca.sc of aulhois who are imt miIi-
jeds or citizens of tho foreign countries Mamed or desi ri'iid in
that or any other order, and if the order contains such liiiiilniieii

and the author of a literary or artistic work first prodiieed in

of those foreign countries is not a Drilish subject, imr a miIijuI
or citi/en of any of the foreign countries so named or disiiiliil.
tlie publisher of such work, unices the onler otherwiM- |iro\iil(».

IIGHT. [im.

Her Maicstv is

Uiil Copj rifjlit Act,

Icr ill ('oiinriliimliT
gii countries luiiiiwl

1886.]

49 & 50 VICT, c. 33.— FOKEIGN PROTECTION. 869

fihnll for the |)iir|)ose of any lopnl proceedings in the United
Kiiigdoin for protecting an) copyriglit in such work be dceiiied
to lie entitled to such copyright ns if he were the autlior, hut
this «'nactnient shall not prejudice tlie rights of such author and
])ultlislier as between themselves:
(?.) The International Copyright Acts and an order made thereunder
shall not confer on any |i(^rson any greater right or longer term
of copyright in any work than that enjoyed in the foreign country
ill which such work was first produced.

3,— (1.) An Order in Council under the International Copyriglit Acts Simultaneous
may provide fer determining the country in which a literary or artistic I'lil'licution.
wdik iirst produced simultaneously in two or more countries, is to bo
(Itcnu'cl, for the purpose of cc|>yright, to hav«' been first produced, and
for I'll' imrposes of this section " country " means the Ignited Kingdom
and a country to which an order under the said Acts applies.

(2.) Where a work produced simullam ously in tlu' United Kingdom,
and ill soiiii' foreign country or countries is by virtue t f an Orth'r in
Coniicil under the Interimtionid Copyright Acts deemed for ihe purpose
(if coiiyiighf to be first produced in one of the sjiid foreign {"^Miitries,
mill nut ill the Uniteil Kingdom, the copyright in the I'nited >».iigdom
.'ijiall lie such only as exists by virtue of production in the said loreign
('(iiiiitry, and shall not be such <is would have been acquired if the work
bail lieeii first produced in the Ignited Kingdom.

4.— (1.) Where an order resjiecting any foreign country is made Modification of
iiiiilci- the International Copyright Acts the provisions of thos ■ A«'ts with fiTtiiin
nspt'cl to the rejjistrv and delivery of coi)ies of works shidl not upiilv l"""viHionH of

' , I 1 •• 1 / . I' • 1 I 1 Ii" Intornntionnl

to works produced in such country except so tar as provided by the c„pyrigi,t

Older. _\fi^_

i'l.) Hefore making an Order i: Council under the Interniitional Copy-

lifrlit Acts in re.siH'ct of any foreign country, ll«'r Majesty in Coiineil

sliiill lie satisfied that that foreign <ountiy has made such pi(>\isions (if

nil}) ii.- it appeals to Her Maje.sty expedient to reipiiie for tlie protcc-

lion ol authors of works first produced in the I'nited Kingdom.

5,~(1.) Were a work being a Itook or dramatic piece is first pro- Rcstriotion on
dnted ill a foreign country to wliieli an Order in Council under the trmisliitiDM,
liiteiimtidiial Copyright Acts apjdies, the author or publisher, as the
case imiy be, shall, tiiiless otherwise directed by the order, have the same
lifllit (pI jueventing the production in and importatii.!! into the I'nited
Kingdom of any translation not authorised by him ol the said work
as lie has of pi'e\entiiig the production and importation of the original
work.

{2.) Provided that if after the expiration of ten years, or any other
term pieseribed by the onU-r, next alter the eiul of the year in which
the Work, or in the case of a book ]iul)lished in iiiimbei's each iiiiniber
of the Itook, was first produced, an authorised translation in the Ki gli>li
laii;nii;;i' of such Work or iiumber has not U-en prodiiceil, the said njjht
to |ii(>V)'ni tl'.e prodiietioii in and importation into the I'nited Kingdom
0- an iiiiaiithorisid translation of such work shall cease.

(.1) 'ihe law relating to copyright, iiieliidiiig this Ael, siiall ni)|)ly to
a lawliijly produced trnnslation of a work in like manner as if it were
an original work.

(4./ Such of the provisions of the International Copyright Act, 1852,
relating to translutions as are unrepealed by this Act shall apply in like
nmuuer as if they were re-enacted in this section.

870 49 & 50 VK'T. c. ;i;i.— EVIDENCE OF FOREIGN.

isso,

Application of Q^ Where an Order in Council is uiude under the Interniitional Vom-
Act to existing right Acts with respect to any foreign country, the author and imlilisher
^"^ "■ of any literary or artistic work first prothiced Iwfore the date at wliith

such order comes into operation shall be entitled to the Rauif rii'hts
find rcjiiedic s as if the said Acts and this Ant and the said onKr liml
ap[)lie(i to the said foreifjn country at the ds . of the said production :
Provided that where any i)erson has before the date of the i)ul)lication
of an Order in Council lawfidly j)rofluced any work in the United
Kinfjdoni, nothing in this section shall diminish or prejudice any rights
or interests arising from or in connexion with such production wbicii
are subsisting and valuable at the said date.

Evidence of
foreign copy-
right.

to coloiiien.

7. Where it is necessary to prove the existence or proprietorsliip of
the copyrigiit of any work lirst produced in a foreign country to wliiili
an Order in Council under the International Copyrigiit Acts a|i[)liis, mi
extract from a register, or a certificate, or other do<Munent slating tiic
existence of the copyright, or the person who is the propriitor of
such copyright, or is for the purpose of any legal proceedings in the
Unite<l Kingdom ileemed to l)e entitled to such coi)yright, if authcnicateu
by the olHcial .seal of a Mini.ster of State of the said foreign countiv,
or by the oillcial seal or the signature of a British diplomatic or consular
ollicer acting in such country, shall be admissii)li! as evidence of the
facts named therein, and all courts shall take judicial notice of i veiv
such olhcial seal and signature as is in tlii:i section mentioned, niui
shall admit in evidence, without proof, the documents authentieiited
by it.

Application uf 8. — (1) The Copyright Acts shall, subject to the provisions of thij
Copyright Acts \^.f^ apply to a liti'rary or arti.stic work first i)roduced in a Britisii \)o>-

' sessiot: in like nnmner as they apply to a work first produced in the

UJted Kingdom :
Provided that —

(rt) the enactments respecting the registry of the copyright in such

work shall not apply if the law of such po.s.se.ssion provide>

for the registration of such copyright ; and

(6) where such work is a book the delivery to any persons or ijodv

of j»er,sons of a copy of any such work shall not be iviiuired,

(2.) Where a register of co|>yright in books is kept under the aiitliority

of the government of a British possession, an extract from tiial register

purporting to \)c certified as a friu- copy by the ollicer keeping it, and

a)itlienli«uited by the public seal of the British possession, or by tlie

otiiciid seal or the signatm-e of a governor of a Britisii jKi.sses.siuii, of of

II ((donial secretar}, or of some secretary or minister ndniinisteiing a

de|)ai'lnient of tlu' government of a British pos.><ession, shall lie aduiis-

silile in evidence of the contents of that register, and all eoiuis shall

take judicial notice of every such sejd and signature, and sliall admit iu

evideiu'c, without further proof, all documents authenticated by it.

(3.) Where before the pa.ssing of this Act an Act or ordinanee lias
been passed in any British po.>^.se.ssion respecting coi)yrigiit in any literary
or artistic works. Her Majesty in Council nuiy make an Order niuilifyiiif;
the Copyright Acts and this Act, so far as they apply to such British
posses>ion, and to literary and artistic works lirst produced llu'ieiu, iu
such manner as to Her Majesty in Council seems expedient.

(1.) Nothing in the Copyright Acts or this Act shall prevent the
jMiKsing in a British possession of any Act or ordinance respect in}; the
copyright within the limits of such possespion if works first produced
in that possession

EIGN. rissfi.

1886] 49 & 50 VICT. c. 33.— MEANING OF WORDS.

871

9, Where it appears to Her Majesty expedient that an Order in
Coiincil under the International Copyright Acts made after tlie passing
of this Act as respects any foreign country, should not apply to any
British possession, it shall be lawful for Her Majesty l>y the same or any
other Order in Council to declare that such Order and the International
Copyri^iits Act and this Act shall not, and the same shall not, apply to
such British possession , except so far as is necessary for preventing any
prejudice to any ri<rhi.s acquired previously to the date of such Order ;
aud the expressions in the said Acts relating to Her Majesty's dominions
shall bi' construed accordingly ; but save as provided by stich declaration
the said Acts and this Act shall apply to every British possession ivs if it
were part of the United Kingdom. ^

10, (1-^ It .shall be lawfi'.l for Her Majesty from time to time to make
Ordiis I jinicil for tiie pur[)o.ses of the International Copyright Acts
iiiid tiii U for revoking or altering any Order in Council previously
iimdi'iti _ .rsuance of the .slid Acts, or any of them.

(2.) Any such Order in Council shall not affect prejudicially any
iij;lits acfiuired or accrued at the date of such Order coming into opera-
lidii, and shall provi<le for the protection of such rights.

11, In this Act, unless the context otherwise requires —

The t'.\|tression " literary and artistic work " means every book, print,
litlio<;raph, article of sculpture, dramatic piece, musical composition,
piiiiitinj;, drawing, photograph, and other work of literature and art to
which tlic Copyrigiit Acts or the International Copyright Acts, as the
cute recinire.x, extend.

The expression "author " means the author, inventor, designer, en-
graver, or maker of any literary or artistic work, and includes any person
ilainiiii^ through the author; and in the case of a posthumous work
means the proprietor of the manuscript of such work aud any person
chiimii;^ through him; and in the case of an encyclopa;(ha, review, maga-
zine, jjcriodical work, or work published in a series of books or parts,
iuehides the proprietor, projector, publisher, or conductor.

The expressions "performed" aud " performance" and similar words
iialiidc representation and similar words.

The expression " produced " means, as the case requires, published or
made, or, performed or represented, and the erpression " production " is
to he construed accordingly.

The expression "book published in numbers" includes any review,
niaf^a/.ine, periodical work, work published in a series of books or parts,
tiausactions of a society or body, and oth«'r books of which ilifferent
voiiinie.s or parts are publishei' at different times.

The expression "treaty " ii = 'udes any convention or arrangement.

The exjjression " British possession " inchides any part of Her Ma-
jesty's dominions exclusive of the United Kingdom ; and where parts of
such dominions are under both a central and a local legishiture, all parts
under one central legislature are for the purposes of this definition
deemed to be one British j)ossession.

12, The Acts sijecified in the Third Schedule to this Act are herel)y
repealed as from the passing of this Act to the extent in the third column
of that schedule mentioned :

Provided as follows :
(a.) Where an Order in Council has been made before the passing
of this Act under the said Acta as respects any foreign

\ See L.R. Digeet for Orders in Council applying Foreign Copyrights to Great
Britkin and her colonies.

Application of
International
Copyright
Acts to
colonies.

Making of
Orders in
Council.

Dothiitions.

Repcnl of
.Acts.

1'.

lii

I I

872 49 & 50 VICT. c. 33.— INTERN. COPYRT. ACTS.

[18S0.

country the ennctmonts lion'by rpjwalcd slinll contimic in fii;i
force as respei-ts that country until tlic siiitl Ordci' is i(\(iki.(|.
(A.) The said repeal and revocation shall not pivjudicc ,iiu li;;],]^
acquired previously to such n'jH'al or revocation, imd smli
rights shall continue and may he enforced in like rnaiimr as if
the said reijonl or revocation hml not Ik-cii enacted or umh.

FIRST SCHEDULE.

Inteunational Copyright Acts,

Part I.

Sesiiion and Clinptur.

Titli".

7 & 8 Vict. c. 12.

15 & 10 Vict. c. 12.

38&3{)Vict. c. 12.

An Act to amend the law re-
luting to International Copy-
right.

An Act toenalilc Her Maje.>-ly
to carry into effect a con\ tji-
tion \\i\h France on tliesuh-
ject of copyright, to e.vteiid
and explain the Interna-
tional Copyright Acts, and
to explain the Acts rehiting
to copyright in engravings.

An Act to amend tlie law re-
lating tolnternational Copy-

right.

.Short Tillo,

The Inleniatimiiil
Cop>i-iH;|il Alt,
1811.

The Inleiiiiitidiiiil
Copvri^'lit Aft,
1H52.

The Interniilioii:il
C(ipMii,'lit Alt,
187^

Part II.

iSeesinn niul Chapter.

Title.

Enactment referrt-d to.

25 & 26 Vict. c. 68.

An Act for amending the law
relating to copyright in
works of t!ie fine arts, and
for repressing the commis-
sion of fraud in the pimliic-
tioii and sale of such works.

Section twelve.

-i

IjtSG.] 49 & 50 VICT. c. 33— OLD COPYRIGHT ACTS. 873

If!

jiij

SECOND SCHEDULE.
Coi'YKKiiiT Acts.

.Sossion am' Chapter.

Title.

() Geo. 2. c. 13. - An Act for tlic i'iicoiir»}!;('iiU'nt
i of tlic arts of (Icsif^iiiiii;, en-
gniviiifj;, and clcliiu};, histo-
rical, and other prints by
v«'stin}^ tiu' proiHTtics there-
of in ihc inventors and en-
{jravers diu'in;; tiie time
tlicrein mentioned.
Geo. 3. c. 38. - An Act to amend and render
' more effectual an Act made
I in tlie eiglith yeai- of tlie
reign of Kinjr (Jeorge tiie
Second, for encourajiement
of the arts of designinfi, en-
graving, and et<'iiing, histo-
ri<-al and other prints, and
for vesting in and secnring
to .lane Hogarth, widow,
I tlu' pro|)erty in certain
! ptints.
IJ Geo. 3, c. 53. An Act for enahh'ng the two

Universities in ICiiijl<nnl,\\\^'
four Universities in Svot-
laiid, and tlie several Col-
leges of Eton, ll'tsliiiin.sfcr,
and Winclientcr, to hold in
perpetuity tlu'ir copyright in
books given or beipieathed
to the Slid nniversities and
colleges for the advance-
ment of tisefnl learning and
other pnrposes of education :
and for amending .so nnich
of an Act of the eighth year
of the reign of Queen Anne,
as relates to the delivery of
books to the warehouse
keeper of the Stationers'
Company for the use of the
se\ cral librariestherein men-
tioned.

I" Geo. 3. c. 57. - j An Act for moreeflV'etually se-
curing the property of prints
to inventors and engiiivers
by enabling them to sue
for and recover penaltieH in
certain cosefi*

Short Title.

The Engraving
Copvright Act,
1731.

The Engraving
Copvright Act,
170(5.

The Copyright
Act, 1775.

j The T'rints Copy-
rigiit Act, 1777.

' 1

, :

i ?

874 49 & 50 VICT. c. 33.— OLD COPYRIGHT AfTS. [isnr,
Second Schedule — Copyiiglit Acts — cont.

Session and Chapter.

64 Geo. 3. c. 56. -

3 Will. 4. c. 15. -

5 & 6 Will 4. c. 05.

6 & 7 Will 4. c. 69.
6& 7 Will. 4.. '.110.

6 & 6 Vict. 0. 45.
10 & 11 Vict. c. 95.

25 & 26 Vict. c. 68.

Title.

An Act to uiucnd and render
more effectual an Act of His
present Majesty for en-
couraging the art of making
new models and ca.sts of
busts and otiier things there-
in mentioned, and for giving
further encouragement to
such arts.

An Act to amend the laws re-
lating to Dramatic Literary
property.

An Act for preventing the
publication of Lectures
without consent.

An Act to extend the prott'c-
tion of copyright in prints
and engravings to Ireluiid.

An Act to re|)eal so much of an
Act of the fifty-fourth year
of King George the Third,
respecting cojiyrights, as re-
quires the deli\ cry of a copy
of every published book to
the libraries of Sion College,
the four Universities of
Scotland, and of the King's
Tnns in Dublin.

An Act to amend tlje law of
copyright.

An Act to amend the law re-
lating to the protection in
tlu! Colonies of works en-
titled to copyright in the
United Kingdom.

An Act for amending the law
relating to copyright in
works of the fine arts, and
for repressing the commis-
sion of fraud in the produc-
tion and sale of such works.

Short Title,

The Sculpture
Copyright Air
1814.

The Di'iiiiiai.r

Cojyyright Act.

ih;{3.

The Li'ftiiii'>

Copyrijiht Aci,
IH.'io.

Thel'rintsniidEii-
gravings Copy-
right Ad, LS3G,

The ('ii|>\Tij;lii
Act, 1830.

The t'()|i\lin;lit

Act, isi:'".

The Cdioniiil

Copvriglit, Alt,
1847.

'J"he Fine Aii«
Copyright Act,
1802.

ACTS. [i«sr,. ■ i^t,!,] AMER. COPYRT.—LIBRAltlAX OF COiSGRESS. 875

Short Title.

The Scnlpturp
Copyright Act,
1814.

Tlic Dliiiiialii'

C'opyi-iglit Act.

ih;{;{.

The Li'ctllli".

C()IiYri>,'lit Aci,

Thc'l'i-imsniidEii.
{jruviiigs Copy-
right Act, l((3t).

Till? C'(i|tvriglii
Act, 183G.

The Copvriglit

Act, isr/.

The Coloniiil

Copvi-iglit, Ad,
1847.

Th*' Fine Ari«
Cojivrigbt All,
1862.

SeMion and Chapter.

riSVict. «■. 12.

l,)vt 11) Vict. C-. 12.

2.j\2a Vii't.c.US.

THIRD SCHEDULE.
Acts Repealkd.

Titlf.

An Act to nmend the kw re-
lating to intermitioniil copy-
right.

All Act to eiitihii' Her .Miijesty
to carry into elfcct ii con-
vention with France on tlie
."sul)jcct ol' copyright, to ex-
tend unci exphiin tlie Inter-
mit loniil Copyright Act s, c nd
to explain tlit^ Act.'< relating
to copyright engra\ ingH.

An Act I'or amending tlie liiw
relating to copyright in
works ol" the fine arts, iind
i'or reiires.sing the ceininis-
sion of Ifaiid in the i)rodiic-
tionand sale of such works.

Usti'iil ut liopcal.

Sections fom-teen,
seventeen, and
eighteen.

Sections one to live
both inclusive,
and sections
I'ijlhtand eleven.

So much of section
twelve as incor-
porates any en-
actment repeal-
ed by this Act.

AMEllICVN COPY IIIG LIT.

TITLE GO. c. \i. U.S. U.S. (IS7H) U57.,
and 26 U.S. S. at L. p. 1107.

As it .stands amended by Act of 8 March 185)1, Scss. 2.
c. 505., for the piu-poso of givins^ effect to the Berne
Internatiomil Copyright Convention.

4948. All records and otiier thing.s relating to copy- copyrights to
i'ii,'lits iiud required by law to be pre.served, shall be under cimrge*of
the control of the Librarian of Congress, and kept and J^,!^''""^''*" "^
preserved in the Library of Congress ; and the Librarian
of Congress shall have the immediate wire and super-
vision thereof, and, under the supervision of the Joint
Committee of Congress on the Library, shall perform all
acts and duties required by law touching copyrights.

,;ongreM.

'')

• .i1

_1Ll.

iTsntft'l S' f -'^ . J*itl' llI^HV «W *• *1 tl .

■f

Seal of offlop.

JJond of
I<ibniriaii.

Annual report.

Persons nnd
puliliojitions
entitled tii
copyright .

Term of
copyrights.

Further term
of pxi'hisive
right.

876 AMERICAN COPYRIGHT.~WAY TO OBTAIN.

[1H91,

4949. The seal provided for the offico of the
Libmriau of Congress shall be the seal thereof, and l)vit
all records and papers issued from the office and to bo
used in evidence shall he authenticated.

4950. The Librarian of Congress shall give a hoiid,
with sureties, to the Treasurer of the United States in
the sum of .STiOOO, with the condition that he will loiuler
to the proper officers of the Treasury a true account of
all moneys receivetl by virtue of his office.

4951. The Librarian of Congress shall mako an
annual report to Congress of the number and doscriptiDu
of copyright publications for which entries have been
made during the year.

4952. The author, inventor, designer, or pvoprietor
of any book, map, chart, dramatic or musical coinposi-
tion, engraving, cut, print, or photograph or neyjativc
thereof, or of a painting, drawing, chronio, .statue
statuary, and of models or designs intended to be
perfected as works of the fine arts, and the executors,
administrators, or assigns of any such person, shall, upon
complying with the provisions of this chapter, have tlio
sole liberty of printing, reprinting, publishin<|;, com-
pleting, coi)ying, executing, finishing, and vending the
same ; and, in the case of dramatic composition, of
publicly performing or representing it or causing it to
be performed or represented by others ; and authors or
their assigns shall have exclusive right to dramatize ami
translate any of their works for which copyright shall
have been obtained under the laws of the United Stalei.

4953. Copyrights shall be granted for the term of
28 years from the time of recording the title thereof, in
the manner hereinafter directed.

4954. The author, inventor, or designer, if he ho
still living, or liis widow or children, if he be dead, shall
have the same exclusive right continued for the further
term of 14 years, upon recording the title of the work

180)

] AMERICAN COPYTliaHT.— ASSIONABILITY OF. 877

or description of the article so secured a second time,

and complying with all other regulations in regard to

on<Tinal copyrights, within six months before the («xpira-

tion of the first term ; and such person shall, within two

months from t!ie date of said rentnval, cause; a c()|)y of

the record thereof to he published in oiie or mon^ news- '["y[.',j''''"" "^

papers printed iu the JJnited States for the spac(; ol' I'our

weeks.

4955. Copyrights shall be assignable in law, bv anv Assignment of

^^ Y . ■ 1 . 1 'ii i' <'(.iiynKhls and

instnunent of writing, and such assignment shall b(; nconiint,'.
recorded in the office of the Librarian of Congress Avithin
CO days after its execution ; in default of which it shall
be void as against any subseciuent [)urchaser or mortgagee
lor a valuable consideration, without notice.

4956. No person shall be entitled to a copyright i^'i;'i'*i'"f.ti"«
unless he shall, on or before the day of publication in iKt|.ro \n\\,\\.
this or any foreign country, deliver at the office of the ^' ' "
Librarian of Congress, or deposit in the mail within the

JJniled States, addressed to the Librarian of Congress, at
Washington, District of Columbia, a printed Qo\\y of the
title of the book, map, chart, dramatic or musical com-
position, engraving, cut, print, photograph, or chronio,
or a description of the painting, drawing, statue, statuary,
or a model or design for a \\()rk of the line arts for
which he desires a copyright, nor unless he shall also,
not later than the day of the publication tlun'eof in
this or any foreign country, delivcn- at the office of
the Librarian of Congress, at JFa^h'ntgfon, District of
ColumJna, or deposit in the mail within the United States,
addressed to the Librarian of Congress, at Wash hi fj ton, Twoeopiesof
District of Columbia, two copies of such copyright book, photof^iiiii
map, cliai't, dramatic or musical composition, engraving, '/"iiVi'.lHon.
ehromo, cut, print, or photograph, or in case of a painting,
drawing, statue, statuary, model, or design for a \\ ork of
the fine arts, a photograph of the same : Provided, that
in the case of a book, photograph, ehromo, or lithograph,
the two copies of the same required to be delivered or

within

'M '

I'posited

pri

qie

878 AMERICAN COPYRIOIIT— FOREIGN PIRACIES,

[1891,

I
I

ProvLsoos to
l« made in
the United
StatuH.

Im port nt ion
of foreign
editions pro-
hibitml.

Exceptions.

RcpokI of
entry nnd
attested copy.

tho limits of tlio Unlfcd Statfi/t, or from plates mi\(\c
thorofrom or from iio£^ativo.s or drawini^son st()ii(> imdc
witliiii the limits ol' tlio Vnitcd S/atrn, or from Inuist'crs
mado tluM'ofrom. Duriniu^ the oxisionce of sucli copvriulit
tho importation into tho Unilcil Stales of any hook.
chromo, lithoiijraph, or ])hotos?rapli so copyrinhlcd, or
any edition or editions thoroof, or any i)latos of ih(> same
not mado from typo set, n(^^'ativos, or drawinii^s on .sfonc
mado Avithin tho limits of tho United Slates, shall he,
and it is horohy, prohihitod, oxcopt in the cas(>s s|)('ci(k'(l
in paraijraphs 512 to 510 inclnsivo in soc. 2 of Iho .Vet
entitled "An Act to Rednc«^ the lleveinio and iMiualizo
the Duties on Imports, and for other purposes," approved
October 1st, 181)0 [see Uevenue Act, Sess. 1. c. 12H ;
26 U.S. Statutes at Laro^e, 188<M)1, p. OOl.]; and
except in tlie case of pcM'sons purchasinu; for use and
not for .sale, Mdio imjKJvt suhject to the duty tlitTonn
not more than two copies of such hook at any one time;
and except in the case of newspapers and niaijazi)U's,
not containiuii; in whole or in part mutters copy-
righted under the ])rovisions of this Act, unauthorized
hy the author, \Nhich are herelty ("xempted IVom
prohibition of importation. Provided, iiererllielcfis, that
in the oise of fjoo/i's in foreii^-n laui^uaijfc^s, of wliidi
oidy translations in l]ni!:lish are copyrighted, the pro-
hibitionof importation shall apply only to the translation
of the same, and the importation of the books in the
original language shall be ])ermitted.

4957. The Librarian of Congress shall record the
name of such coi)yright book or other article, forthwith,
in a book to be kept for that purpose, in the words
foUoAving : — " Library of Congress, to wit : Beitroinem-
bered that on the day of , A.li. of

hath deposited in this office the tith; of a hook
[map, chart, or otherwise, as the case may be, or descrip-
tion of th(^ article], the title or description of which is
in the following Avords, to Avit [here insert the title or
descri})tion], the right Avhert^of he claims as author

i .1!

,H9i.] AMERICAN rOPYRIQIIT.-FEES IN U. S. B79

[originator or propriotor.as the case may he] in conformity
with the law8 of the United States respecting copyriglits.
CD., Librarian of Congress." And ho shall give a copy
of the title or description, under the seal of the Lil)rarian
of Congress, to the proprietor whenever he shall require it.

4958. The Librarian of Congress shall receive from
the persons to whom the services designated are rendered
the following fees :

I'irst. For recording the title or description of any
copyright book or other article, 50 cents.

Second. For every copy under seal of such record
actually given to the person claiming the copyright, or
his assigns, 50 cents.

Third. For recording and certifying any instrument
of writing for the assignuKMit of a copyright, $1.

Fourth. For every copy of an assignment, $1.

All foes so received shall b(; paid into the Treasury of
the United States; provided that the charge for recording
the title or description of any article entered for copy-
right, the production of a person not a citizen or resident
of the United States, shall be $1, to be paid as above
into the Treasury of the United States, to defray the
expenses of lists of copyrighted articles as hereinafter
provided for.

And it is hereby made tlu^ duty of the Librarian of
Congress to furnish to the Secretary of the Treasury
copies of the entries of titles of all books and other
articles wherein the copyright has been completed by
the deposit of two copies of such book printed from type
set within the limits of the United States, in accordance
with the provisions of this ^Vct, and by the deposit of
two copies of such other article made or produced in the
United States; and the Secretary of the Treasury is
hereby directed to prepare and print, at intervals of not
more than a week, catalogues of such title entries for
distribution to the Collectors of Customs of the United
States, and to the postmasters of all post-offices receiving
foreign mails, and such weekly lists, as they are issued.

Fees,

Charpo for
record ing
production of
foreigner.

List of copy-
righted articles
to Ik! furiii.shcd
to Treiisiirv.

Weekly cat*-
logucg for
cuHtoms and
postal officials.

' I

I i

iiil:

880 AMERICAN COrYUIOin.-SECOND EDITIONS.

' ;

I. '

-i; i

iHiJl

Copy of Hiilwo-

UCIlt ('llitlilllH.

sliall l)c funiishod to all parties (Icsivini? tluMu, at a sum
not oxc(M>(liiii,' ij;5 ])('raiimmi ; and tin; Secretary and tlic
l'()stinaster-(ieneral ar*^ lier(d»y (Mnpowen^d and r('(|iiiici|
to make and enl'orce siieli rnh'sand rei^nlatioiis as shall
Units to i-r.;- pn'vent tlie importation into tlie United Stales, cvcnit
iinpoiiiiiioMH. upon the conditions above specified, of all articlts
proliil)ited l)y tliis Act.

4959. The j)roprietor of every copyright hook or
other art ich; sliall deliver at the oHice of the Lihrannn
of Coni^n^ss, or dei)osit in the mail, address(»(l to IJic
Librarian of Coni^ress at jraf</iiit(/foi/, District ol" Cohnn.
I)'n(, a copy of every snhsetpient edition wherein any
substantial chanii^es shall be made. Proridcd, liunrcer,
that the alterations, revisions, and additions made td
books by foreit^n authors, henitofon^ published, of wliicli
now additions shall appear subseciuenlly to the takin:;
(dVect ol* this Act, shall be ludd and deemed ca])alil(' of
being co])yriu;ht(Ml as abov(> ])r{)vi(led for in this Act,
unless they j'orni a part ol' the series in course of
l)ublication at the tinn* this Act shall take olTect.

4960. •"'or every failure on tlu' part of the pro-
prictor of any copyri^:ht to d(diver or deposit in tlic
mail either of the published copies, or descrijjtions, or
])hotoiJfraph, required by sections lOoG and 4!)')'.), the
projn'ietor of the copyrii^ht shall be liable to a peiialtv
of $25, to bo recovered by the Librarian of Coii!i;r(ss,
in rhe name of the Vnitcd Slotos, in an action in the
natnre of an action of debt, in any district court of the
United States within the jurisdiction of which tlic
delinquent may reside or hi; found.

4961. The postmaster to whom snch co])yriu:lit
book, title, or other article is didiA'ored shall, if n-
quested, give a receipt therefor; and when so ilo-
livered he shall mail it to its destination.

A.ldii
foivii'iiMiitliora.

I mils \iy

Piimlly ft II'

iiiiii>siiin.

PostmastiTs to
give ivciiiits.

Piililioatioii of
notice t)f

4962. No person shall maintain an action for tiic
t'ntrytbr copy, infringement of his copyright nnless he shall irivo
scriUtr' notice thereof by inserting iu the several copies of every

IHf)!.] AMERICAN COPYRIGHT.— FALSE NOTICEH. 881

edition |)ul)liHh('(l, on tlin titlo papfo or tlio pas^o immo-
(liati'ly follonini,', if it Im; a l)ook ; or il' a map, cliart,
iDiisicjiI composition, print, ent, eni^ravini?, pliotoj^raph,
|)aiiitiMi>;, diawinjj;, chronio, statue, statuary, ov model
or (l('si,i,'n intended to Ix? [X'riected and completed as a
work of the I'nuj arts, by inscribini; upon some j)ortion
of tlii^ face or front thereof, or on th(i face; of th(!
substance on \vhi(rh tlu^ same; shall he mounted, tlu;
I'oliowint,' words : " KntertMl accordin*^ to Act of

C()n<,'ress, in the yem* , hy A. \i., in the odice of

ilio Ijibrarian of Congress, at WoHhlngtoti.'"

4963. Kvory person who shall insert or impress ivimiiy (..r
such notice, or words of the same import, in or npon ,,'tHiny.
any hook, maj), chart, di'amatic or musical composi-

tion, print, cut engraving, or jdiotograph, or other
article, for which he lias not ohtaincvl a copyright, shall
liciiahie to a juMialty of $100, recoverable oncshalf for
llic person who shall sue for such penalty and one-half
to the use of the United StatoH.

4964. Every person, Avho, after the recording of the vi..iaiio..sof

* . . , . coiiyriglit (if

titlt! of any book and the de])ositing of two copies of i-'okx.
such book, as provided by this Act, shall contrary to the
provisions of this Act, within the term liniited, and
without the consent of the jjrojjrietor of the copyright
lirst ol)tained in writing, signed in presence of two
or iiior(5 witnesses, print, i)nblish, dramatize, translate,
or import, or knowing the same to bo so printed,
luihlished, dramatized, translated, or imported shall
sell or expose to sale any copy of such book, shall
forfi'it every copy thereof to such proprietor, and shall
also foilcit and pav such damages as may be recovered i'""''"''''"^—
in a civil action by such proprietor in any court of
competent jurisdiction.

4965. If any person after the recording of the titlo violations of

f . , . . cnpynt^nt of

01 any map, chart, dramatic or musical composition, ini>i.s,ciuiriH,
pi'iiit, cut, engmving, or photograph, or cliromo, or of the p'^"'"' ' '^'"8"'>
'li'sci'iption of any painting, drawing, statue, stntuary, or
model or design intended to be perfected and executed as

S 2310. 3 &

1 ;

\ i i!

i!!r i

882 A^rERTCAN rOPYRTnilT.— FOTlFTaTURES.

;isoi.

a work ol' tin' (inp arts as j)rovi(l(Ml by this Act, sliall,
Avitliin tho torin limited, contrary to tl«o ])rovisi(>;isor this
Act, and Avithoiit tho consent of tlie ])ro[)rietor of |||(>
copyriufht lirst obtitinod in Avritini^, siii;ne(l in vrcsciicc
of two or more .itnesses, engrave, et eh or work, eopy.
print, publish, dramatize, translate, or import, either in
whole or in part, or by varying the main design with
intent to C7adc the law, or, knowing the same to iic
so i)rinted, ])iiblished, dramati/'vl, translated, or 'm.
ported, shall sell or (»xj)Ose to sale any co|)y of such •■ up
or otlier article as aforesaid, he shall forfeit to th('i)r(i.
pri(>tor all tlu; ))lates on which the sanie shall be copicil
and every sheet thereof, either copied or printed, ami
Money luniiity. shall furtlicr I'orl'cit .fl forev(n'y sheet of the sani(> foimd
in his possession, eitlun- printing, printed, copied, puh-
lished, imported, or exposed for sah», and in cascola
painting, stj\tue, or statuary, he shall forfeit !J;1() tor
every copy of the same in his j)ossession, or by him sold
or exposed for sale ; one half thereof to the proprietor.
and the other half to the use of the Vuitod Stales.

I'lirfuiluif cpf
pliilos, sluTls,

(id.

I)ispositii)ii lit'

[H'OCfCtls.

I'\)r violiiliiiK
(•i)|iyri);lil of
■ Iraiiiatii-
I'ljinixciliniis,

I)Mniiit;(s I'cir
jii'inl'ii)i 111'
imlilMiiii;.' iiiiy
iniiii\i-rri|il
williDUi run-
si'iil lit' iiiitiior.

Tiitnifal liiM > (
art inn ill npy-
riglit Ci-cH.

4966. Any person publicly performinL,' or represent-
ing any dramatic composition for which a eopyriii'ht h.h
been obtained, without t!i<' consent of the proprietor
thereof, or his heirs or assigns, shall be liahle for
damages therefor; such damages in all cases to be
assessed at such sum, not less than $100 fen- the llr>t
and $50 for every subsequent pi'rformanc(», as to lite
court shall appear to be just. [Houcicault v. l'o\.
5 lilatch 87. The Sam(> v. Hait, 1.'5 HIatch 1.7. |

4967. Every person who shall print or publish any
rnanuscript Avhatever witl out the consent of tlieautlioi
or proprietor iirst obtaine.i shall be liable to the aiitlior
or proprietor for all damages occasioned by such injury.

4968. No action shall he maintained in any caseol'
forfeiture or penalty under the Copyright Laws luiloss
the sjimc is commenced within two years after the cause
of action has arisen.

TREs. ;iHni.

lis Act, slmll,
fvisi(»;>s ol' this
prietor of the
i>(l in i)n'si'iici>
II' work, oo|n,
|M)rt, ('itiier in
11 (losigii with

LO Rllino to iii'

iliited, or 'in-
y of suc1> '•HI)
('it to tlic pni-
hall !)(' coijicil
ii* printed, ami
lio same found
il, copiinl, pul)-
id in case of ii
orlVit $10 fur
or bv liini suU

tho proprictdv,
?il Stolen.

ijf or rcprcst'iii-
i <.•(>l>yri^•lll liib
the proprietor
!)«' lial)li' fur
11 cases to 1m'
)() for tlio liiM
mce, as to llic
jicault V. i'<>\,
tch 17.]

or i)id)lisli any
t of theaiitliov
lo to the aiitlKii-
by sucli iiijiii'v.

I in any case ol"
hi Ljvws inilesx
rafter the cause

1801] AMERICAJf COPYRIGHT.— INJUNCTIONS.

883

4969. In all actions arising under the laws rospoct- i><"f"<noof. in

. iiP-i 11 1 '"'""" '" <'"1'V-

iii£f copyns;hts, the donMidant may plead the general litriu cisis.
issue, and give the s[)ecial niattcn* in evidence.

4970. The circuit courts, and district courts having iiijnmiions in
the jurisdiction of circuit courts, shall have power, u[)on '"''•^"'■' "'""•
hill of ecpiity, liled by any party aggrieved, to grant
iiijinictions to prevent tlu» violation of any right secured

hy the laws respecting copyrights, according to th(5
course and jjrinciples of courts of e(|uity, on such terms
as the court may d(MMn reasonable.

4971. which enacted that publiaitions by aliens and
non-residents were not privih^ged, is, of course, now
repealed [sec. 10.]

Sec. 11 of Sess. 2. c. 5(15. 3 AFarch 1891 (2(\ U.S.
Stat, at Large p. 110!)) was :

"That for the puriiose of this Act each volume of v..iiiin(SK,|.,i.
a hook ;n two or more vohimes, when such volnmes ^•i^'llt.ll.l.•.
are i)id)lished separately, ami tin' first one shall not
have been issued before this Act shall take elVect, and
each nnmber of a periodical, shall Ix; considered jiit
independent publica'.ion, subject to the form of copy-
ni,'hling as above."

Bv Sec. 12 the Act came into force 1 .Fulv IHOl. louk. .ffm

I .Inly IHUI.

Sec. 13. That this Ai .shall only aiiply to a citizen '.i'i'iH"i'i"t'i
or subject ol a foreign state or nation when such loreign i..ni>ru m-

11 ,. •!. 1 •!• • ' I' •! I ill I trie- i.<'niiilliii>r

state or natu)n permits to citizens ';: -.i.e ( niti'd StatcH m,„iIi.i' rigiiu,

of America the benefit of copyright on substantially the

same basis as its own citizens; or when such foreign

state or naticm is a party to an int<u'nationnl agrecMuent i^'oy fii'"!''-

which provides for reciprocity in the granting of copy-

ri;>!»t, by the ttM'nis of which agreement Ww. I'nilcd

Sliit:;i of America may, at its ph>asure, b(!ce..u» a i)arty

to such agreem'Mit. The existence of < itlnM* of (ho iVooi,iiiviii..iiM.

condn ions aforesaid shall be (h'termined by the I'lesich'nt

'>!" the United States, by Proclamation nuuh' from lime

'"time as the purposes of this Act may require.

a K 2

■i '

884

40 & riO VICT. c. 4S.- MEDICAL ACTS.

\\m.

By U.S. Act. .T March 1893, Soss. 2.c. 215., an oxton-
.sion of time to 1 March 1893 was gi.rntcd for dclivcrv
of copies to tlie Lil)rarian of Conj^ress Avhcre th(M(> had
hee?i a faihir*^ to (leliv^n* c(>i)iea.

And ill 27 U.S. Si.i. at Lari^e p. 981 Is given a rroHa.
niation hy the U.S. oxtcndinjif tlie privileges of the Act
to citizens of BeUjiiim, Franco, and (Iroat Bnto'in and
Sii'itzerlunil, on the ground " that satisfactory official
assunmeehave been given that in Belgium, France, (1 root
Britain, and the British possessions and Siinhcrldiid.
the law jierniits to citizens of tlie U.S. the henellt of
copyright on siihstantially the same hasis as thc^ citi/i
of those conntries." The benefits are also ev dr id
Gennanji, ibid. p. 1021 ; and Italy, ibid. p. 1013.

19 VICT. (18S3) c. 13.

Cape Ilace Lightho.i e, Nctrfonndland, ti-ansfeiTcd '
Canada.

Rcgistnition of
c'olciriiiil
priictiliimcr
willi ri 1 c 1)^1 li sill

(li|<lnlli;l.

19 k no VICT. (1880) c. 18.

An Act to amend the Medical Acts. The Colonial
part of the Act enacted as follows : —

PART II.

('(II.OXIAI, AMI FoilKKiN l'|{A(T!TI()N KFiS.

11. <Vi iiiul iil'lcr till' pi'i'scrilicd ilnv wlicrc i\ person shows to (lie
silisl'iictidii of till' it'<;istnii' of llic (!''m'riil Coiiiicil lliiif lie lioliU hhiu'
i'(>('o<;nis('(l coloiiiiil iiii'diral ili|iloina or iliploiiiiis (as l.-.-rciii-iiflci' ililiiiiih
•^rartiMl to liiin in a Uiitisli pos«'ssion lo wiiicli this Act applio. iin'l
tliiit he JH of <i;ou«I clmnK-ter, and tliat lu is hy iiiw entitleil to piiulis'
niciliciiio, snrfjt'i'v, Mnd niidwifciT in siicl, Uritisli possession, lie slmll, mi
a))plie.ition lo llie said ie<;isliar, an<l on i»a_vnieiit of siieli fee not exciid-
in^i; live poinids as the Cjenci-nl Conneil may fi'oni time t(t time (letciiiiinc,
he enlitleil, witlioni (examination in tlie I'nited Kin<rdom, to he ii^j^i-l.Trtl
ns a colonial practitioner in liie medical I'e^ister;

Provided tliat lie proves to the satisfaction of the re<ristrar iiiiv of the
following einnnistances ; —

(I.) That the s4iid diploma or diplomas was or were frraiileil to liiiii Mt
a tim»> when hi' was not domiciled in the United Kiiijiiieiii, cir;!i
the course of a period of not less than live years iluriM;,'tlie wiiuli'
of whiili he resided out of the ITnited Kin<jdom ; or
(2.) Thill he WHS practisiiifi; medicine or surgery or a linuuli "t
niedieine or surgery in the rnited Kingdom on the sii.l |mi-

The ColoiiiMl

son allows to till'

lilt lu> lll)lil< Siilllc

rciii-iifti'i' ilrliiiiil)
I Act ii|i|i!i('-. mill

lllillcil III |il;iiliv'

'ssidii, III' sliiill, nil
ell I'ct' not cxci'cil-
to tiiii(> (Iclci'iiiini',
III, to lie ri'iji-l.'ivil

irislriir iiin of tin'

188G.]

iO & 60 VICT. c. 48.— MEDICAL DIPLOMAS.

885

scribed day, and that ho has continuously practised the same
either in the United Kingdom or elsewhere for a jjoriod of not
less than ten years iinmediatt'ly preceding the said prescribed (hiy.

12. ^^11 iiii'l after the lid prescribed diiy where a person shows tc

tlic siilisl'iiction

of th

e registrar of the General Conneil that he holds

soiiif recognised foreign medical diiilonia or diplomas (as herein-after
ilfliiM'ii) granted in a foreign country to which this Act ap|»lies, and that
lie is of good eliai'iictcr, and that he is by law entitled to i)ractise
iiHMlicine. surgery, and niidwifer'y in such foreign country, he shall, on

Rcpisti-ntion of
forrign prnp-
titioicr with
rcoopiniscd
(li|ili)niii.

ii|i|:

linitMili

to th

ristrar

and

pay

nient of such fee not t'xceed-

livc pounds as the (Jeneral C'oiineil may from time to time determine,
«■ ciilillcd, without examination in the United Kingdom, to be registered
Ml I'dieign praetit'oner in the medical register;

Provided that he proves to the satisfaction of the registrar any of the
ullowiiig circumstances : —
(1.) That he is not a Hiitish subject ; or

(•J.) i'liiit, being a Urilish subject, the said iliploma or tliplomas was
or were granted to him at a time when lie was not <lomiciled in
the United Kingdom, or in the course of a period of not less
than five years (luring tin- whole of wliicli he resided out of tile
United Kingdom ; or
(.'}.) That, being a British subject, he was priietising iiiediei

lie or

irgery, or a bnincli of medicine or surgery, in the United King-
ilom on the said prescribed day, and tliiil he has eontinnonsly
practised the siiiiie in the li^iiited Kingdom or elsewhere for a
period of not less than t<'n years immediately preceding the said

treseribed di

IV.

13. — (!•) 'I'he medical diplonia or di[)loiiiiis griiiiled in a British
|iosM'ssioii or foreign "ountry to which this Act a))i)lies, which is or are
to lie ill lined such rec()giiised colonial or foreign medical di|ilonia
III' (liploiiiiis as is or lire reipiired for the purpose's of this A<'t, shall be
or «li|>loni)is as mav be- leciiirnised for tin- time

Mirll llli'ilica

I diph

ln'iiig by the (Jciieral Council as furnishing a siillicieiit guarantee of the
|iosM'ssiiiii of tile reipiisile knowledge mid skill for the e(licjeiit practice

of 1 liciiie, siirgt'ry, and midwifery.

('2.) Whei'c tlie (ieneriil C •iincil haxc refused to lecognise as iii'oie-

il diplonia, the Prixv Coiineil, on

Miilioal
ilijiliiniii of
ciiloiiial ami
fiircinn iH'ao-
lilioin'r wlien
ili'cmril Id Iio
ri'i'oftiiisuil.

(I iiiiv colonial oi- i'oreijiii ni

apjilieatidii being made to tlieui, iiiiiy, if they think lit, after considering
Mii'li applicati>>n, and after eomieiinication with the Cien(>ral Council,
iii'drr the (ieneral Council to retogiiise tl"' said diploma, and such onh-r
>liall lie iliilv obeyed.

(;i.) If

person IS !'(

fused

i'e<;istiatioii as a colonial or i'<

oreiifii

iHiiililiniier on any ullier ground thai that the medical diploma or
liliioiiiM.' held by such person is or arc not sii.li recognised nitMliciil,
liliiciim or diplomas as above (h'lined, the registrar of the Oemral
Coiiiiiil shall, if reipiiri'd, stat(! in writing the reason for such refiisd,
■iini llie |ieis<iii so iifiised registration may appeal to the l*i'ivy Council,

Mill till i'livv Council, .'il'tci' eomniunieatioii with the <

leiiera

I (

oiinei

iiia\ ill-Ill iss the api)ea

I or mav order the (}:'iieial Council to enter tin

aiuiie of the apiwllant on the .egister.

(I.) A |M'rson may, if so entitli'd iimler this Act, be legisiere.l both as
II ooloiiiiil Mild a fca'eign practitionc!'.

14. The medical register shall coniain a separate Im of the names .Si^nrnU' list of
and addresses of the colonial j)iaetitioiiers, and also ii separate list of the <'i)li)iiiiil and
nuniesiuul addresses of the foreign inael it loners registeied under llii.s for^'g" pr'>c-

7
i

)sl

Siii

■ ill

i^iii

IVn

i|9 ilil

.ijiii

\M£j

886

11) .<t r,{) vurr. »•. ih.— col. mkdicals.

[18Mi.

lllH.IK'l-S III
llll'lliful

rrgiMi'i'.

Act ; oM'li list slitill Im> •iUiIo (iiit ul|iliiilM-licully accoi'dinir to tlic swy.
iiitiiii's; mill tlic provisiiiiis ol' tlic Mitdiciil Act, IH.'iS, nlatiii;; In ihixius
i'c^istci-c<l iiixlcr tliiit Act, mill i'clatiii<; to the iiiciliciil rci^iNiii' iiinl in
itlTi'iiccs in respect tlnTi-nl', sliiill, so I'lir iis iiiny Im-, apply in liir cum' (i(
ciilmiiiil mill l'iirci<rii pnictitiiiiu'i's rc)rislci'cil iiiiilcr this Art iiml nf t||,.
siiiil lists III' those pnictitiiiiiers, in the smiie way as such pi'ii\i>iiiii>
apply in the ease of persons ie<jisteicil iiinhT the wiiil Medical Act, iKjH,
liiid itf the ic};ister as kept under that Act.

15. Oil and alter the appointed day it shall he lawful fur .inv
re;jislered liiedical pl'lietitii iier who lieili;^ on the list of colipiiiii! i,|-
of forei^'n praelilioiiers is on that day in piis>ession of or llierenfiir
olitains any rei'o<{iiised eolonitil or forei<rii medical dipionia ;;riiiiti'd in a
Ihitish possession or forei;^ii conntry to which this Act appiiex to raii'M'
a iie<eriptioii of such diploma to in- adi'ed , i his nanie oi the uii'iliiMJ
lejriMlcr.

Ki'pxtmliiiii of 15, On and after the appoinleii day it shall Im- lawful for iiiiv
foivi^'ii ilcujii > re;;istereil liiedical praclilioner who, Im-Iiij^ on the iiiedieal n'};isti'r liv
\irtiie of Kii^xlish, Scotch, or Irish (|nalilicalions, is in possission of ii
forcijjii ilejjree Vi inediciiie, to caiisi' a description of siieli foiri;jii
niediial de<;i'ee to In' adiled to his name as an additioni.l litle in ilii'
medical ie;;ister, proxided he shall satisfy the (leiieial (Joiiliril limt In
I'litaiiicd such de<{ree after pro|M'r exumimitioii mid prior lo llie pno^in;'
of this Act.

Mi'ilir.'il lilies
III' I'liliiiii.il
mill Ion i;,'ii

IM'Itl'llholliMS.

lu'lil \<\ ri'iii.N
ti'l'i'il iiirilifil
|iriicUliuiit'i'K,

I'oWlT of Ih r
Maji'sty ill
t'oiiiiril to
ill liiic ('oloiiir-
mill foreign
foiiiilrii- to
wliirli tliin |>art
of llif Alt
ii|«lilir>.

17. — (I) "''I' Majesty may froii. time to time liy Order in Coiniiil
declare tliat this part of this Act sliall lie deemed on and aftir u ilii\ in
lie iiameii in sueh Order to apply to any Uritish pnsscssinn or ioiii;;ii
coiiiiiiy which in the opinion of Her Majesty alTonls to the ir^'i-lnni
•iieilical practitioners of the I'liited Kinploiii such pri\ ileoiN of pnuti.Mii^'
in the said Uritish possession or forei<;ii country as to Her Miijr>iy iimy
seem just ; and from and after the day named in such Onhr in Coiiiiril
such Uritish posM'ssion or foreijiii eountry shall In deeniicl to Ih' ,i
Ih'itisli possession or forei^^ii country to which this Act applii'> wiiiiin
the meaning of this part thereof; iiiii .mill such Order in ('oiincil liii<
lieeii made in re-^|M'cl ol any Uritish possession or forci};n connliy. llii-
{Nirt of this Act shall not lie deemed to apply to any such pi»M'»iiiii nr
country, and the expression "the presi'i ilicii day" as used in llii« |piiil
of this Aei ineaiis, as res|i«'cls an\ Uritish posscssiiui or foreign loiiiiiiy
the day on and after which this part of this Act is ilci-lareil liy Onln

in Couiieil to aiiiilv to such Itritish iiosscssioii or foreiun eouiilr\

■ipi

('J.) Her Majesty may from time to time liv Order in Coii

iin

iiid renew aii\ Order

Hide III pursuance o

f I hi

1 ICMlivi
I

s section ; llliil en llu

OIVI"ll

re\'icatioii of such Ordi r as respects niiv Uritish imssi'ssion or f
coiiniry, such possession or foreign country shall cease to he a posH'-inii
or eountry to which this part of this Act iip|ilies, without |iiijiiclin
nevortheless to the ri^ht of any |K'rsoiis wIiomo names have liein iilriiulv
entered on the lej^ister.

AiiiPiiilmciil of
21 iV; 22 Vi.i,
e. !»». I., aii,, ns
to nieilical
ottictTi ill
ifhipa.

18. Nulhinj; in the Mediial Act, \H!)H, shall pri'Mitl a |m
holding a luedieal diploma entilliiifr him to practise meiliciiie or m
pry ill n Uritish possession to wli'i-h this Act applies from Imliliii;,'
appointment iis a medieal ollieer in any vess4-l I'c^istered in tliiil |«

I'M III

»j«s«ion.

He<". 27 contained the iisud th-flnition ol
IJOHsession."

f th

e c\pri>ssion

Ul•ili^

IHSG.

IS) & M VlCr. c. 35— NEW CAN. IM.l'VS.

bb7

ii||

49 & 50 VICT. (1B80) c. :jr>.

All Act respcctini^ flic Hcurcscnlution in the Parliji-
I'.M'iit ol" Canada of Territories whicli I'or the time
Immii^: I'orni part of the Doniiiiioii ol' Canada, but
arc not included in any Province. | 25/// June 1880.]

U' II KKKAS it is i'\|M'(licnt l\ i<li' for tlio r('|ii'<'M'iitjili()ii in the Sciiiitc ami Ilmisi' ol'
('(Jiiiiiiiiiis ol" Cariatla, or cil'icr ol' lliciii, of any Icn-ilory wliitli lor (lie
liiiir lH'iii<; foiiMs part of tin- Dominion of Canaita, laii is nut inrliidctl in
;iii\ |iro\ inrr :

He ii liii'nroic I nar|r<l liy lla- (^utTi«'s Most Kxcillfnl Majesty, liy
;iii(l willi till' aihicr anil consent of the liOids SjiiritMal am! 'i'ein|ioral,
iiiiij ('(iiuniMi-, in this present Parliament ssemliled, and hy the authority
of liii' .-Hii!!', II -i follows :—

1. The I'arliaineiit ol Canada i':-iy from time to linu' make |iio\ision l'ri.vi>iiiii l.y
I'm- the representation !•> llie Senate ami Ilonse of Comriions of Canada, l|ii"liiii"i m "f
or ill either III' ilieni, of iinv territories whieii for the time liein-' form "i""'" J'"'
|iiirt ol till- I'oniinioii ol ( aiiada, Iml are not ineliideil in any pro\ mee ,,|- 1,.,.,-!!,,,.;,.,

tilc'I'lKlf.

2. Aiiv Aet pa'-sed liy the i'liriiiimeiit of Canadii liefore the passini: itf KtTni ol' Ac(>
ilii» Ac! i'nr the piirpoN' nieiilioiieil in this Aet shall, if not disallowed "f I'iU'liniH iii
In the (^iieeii, lie, alld shall lie deemed to ha\e lieeii, \iilid and eirectlial "' •'"■"'"•
IrcHii till date at which it leceixed the assent, in Her Mujesty's minie, oi

ilic (i(i\eriior-(ienerid of Canada.

ll is hereliy declared that any Aet passed liy tiic I'arli' .iieiit of
t'liiiiiila, whether liefore or after the passing; of this Act, for the
|iii|ii)'.e iiieiitioiied ill this Act or in the Hritish S'ortli Am rica Aet, .'it iV H.) Vni.
h7l, has effect, notwithstanding anvthii'^ in the Mritish North ''• '''"'•
AiiiiMKii Act, IH(J7, ami tlic nmiilM'r of .si nators or liie niimlier ,,|' ••''''^ •" *"'■
iiiniiliers ol' till' lloii.sc of Commons >pe<illcd in the last-mi iitioiied
.\ii is iiu'ieasoil liy the niimlii r of senatoi's or of meiiili'. rs, as the
■ i««' !iii!v l,e, |iid\ided \t\ iiii\ siieli Ait of the I'arliameiit of Canada for
ilic r'pi'eseiiiation of any prnxinees or territories of Canada.

3. This Act may he cited as the llritish North America Aet, 1SH(5. •'^I'..ii ml, I

This Act and' the Jkitidi Nortii America Act, iHti?, ami (|„. '■'>"-"•'"■"""•

liiiiiMi North America Act, 1H71. shall he « sfiicd to;;ether, and |f".j^ '" ^ "''

luiiv Ih' cited to;;eiher as the Urili-h Norlh America Act.s, 1HU7 '" 'aViV ■(> \ ni
l""^"- v.M,"

I '

I !

50 & 51 VICT. (1SH7) c. v.).

This Act Cf)ntj\ine(l provisions wliieli inii^lii lie held
h) extend to all Ctdonial (lovernors. It was I'or the
I'lirposc of extendini,' the 2S .t 20 Vict. c. llv'J., and
•i'' vt ;Uj c. 20. (Colonial (ioverntn-s Pensions Acts,
and 1872), to th(> llij;h Coinnjissioner of Cyprus.

sss

51 & 52 VICT. c. G5.— COL. ATTOKNKY.S.

[\HW,

ol ct 52 VICT. (1888) c. 65.

An Act to provide for the custody of tli(» lioH

of ^Solicitors.

liy «L'c. 20 of (his Act and tlio sclictluhj to ilicAci,
tlui Colonial Attorneys Koliof Act, 1857, 20 & 21 Vici
c. J}1). [((ufc ]). 710] Avas ropealcd as follows. Sec. 5 from
the words " for the jiidi^cs" to " solicitor also and," ami
from " and not as an attorney " to the first " reciiiircd " ;
and fnnn " an attornev or solicitor" to " attonicv mid
solicitor"; and from "and if bv any such" to liist
"after mentioned"; and from tlu* second "to ad-
minister" to "taken and"; and the words "and
thev," and "or th(^v," and " (u- them," wherever tlicv
occur, and the Avords "in the Court of Cliaiiccrv"
and " o!" such court."

51 VICT. (1888) c. 70.

ApjH'llate Jurisdiction Act. See AiJjx'ndix W.

For Merchant Sliii)|)ini,^ .Vets, 51 Vict. c. (;2. ; 52 it :.:!
V^ict. c. 10. (tonna^«^), and c. 08., rilotJij;e; and c. ?•).,
use of tlags in l^ritish Merchant service, ace .")7 k .>
Vict. c. 00. posi.

r>:\ .Si 5t VICT. (1890) c, 27.
[This Act repeaU'd the pievious Vice-Admiralty
Courts Acts. See Seh. 2., and as to l*rize Courts,
.see 57 & 58 Vict. c. .*«). po.sf. ]

An Act to amend the Law rospectinj;' the oxercisc
of Admiralty Jurisdiction in Her Maje.sty's
D(miinions and elsewhere out of the Tiiited
Kingdom. [25/// Jnl>i 18!H)..

BE it (Miacted hy the Queen's mo.st Excellent .Maj(">i}.
hv and witli the advice and consent '>f the Lord:<
Spiritual and Tempornl, and Common-s. in this present
Parliament assembled, and by the authority of tliesaiui',
as I(>''.oWB :

-rrm

im.]

63 & 54 VICT. c. 27— COLllTS OF ADM.

889

1. Tliis Act may be cited as the Colonial Courts of
Admiralty Act, 1890.

2. -(1.) Every court of law in a liritisli possession,
wliicli is for tlie Wnur beiiiu; declan'd in pursuance ol"
tliis Act to be a court of Admiralty, or whieb, if no such
(Icclarafion is in fonu' in the possession, has therein
oiiirinal unliniit(Hl civil jurisdiction, shall be a court of
Admiralty, Avitb the jurisdiction in this Act mentioned,
and may lor the purpose of that jurisdiction exercise all
the powers wdnch it ])oss(!sses for the ])urposeof its other
civil jurisdiction, and such court in reftruncc^ to the
jurisdiction conferred by this Act is in this Act referred
loasaColoiual Court of Admiralty. When? in a JJritish
possession the (Jovernor is tlu; sole judicial authority,
till' expression " court of law " for the purposes of this
section includes such (Jovernor.

(2.) Tlu^ jurisdiction of a Colonial C\)urt of Admiralty
sliall, subject to tin; j)rovisions of tliis Act, bo ovim* tlu^
like places, persons, matters, and thijii^s, as the Admiralty
jurisdiction of the IIii,di Court in J'hi<jl<ni<l, whether
cxislini^ by virtue of any statute or otherwise, and tin;
Colonial Court of Admirnlty may exercise such juris-
diction in like manner and to as full an (extent as the
lli,i,'h Court ill EuyUnnI, and shall have tin* same; rej^ard
as that Court to internati(mal law and the comity of
imtic'is.

(;J.) Subject to the v ovisions of this Act any enact-
ment referring to a Vice-Admiralty Court, which is
contained in an Act of tlic Imperial Parliament or iti a
Colonial law, shall apjdy to a Colonial Court of Admiralty,
and he read as if the expression " Colonial Court of
Adniindty " were th(>rein substituted for " ViccsAdmi-
valty Court" or for other expressions respectively
r'fcrrin^' to sue)' Vice-Admiralty Courts or the judj'e
thereof, and the Colonial Court of Admiralty shall have
jurisdiction accord inj^ly.

I'rovided as follows :

(".) Any enactment in an Act of the Ini]>erial I'ar-
liament referring; to the Admiralty jurisdiction

Shurt title

Colipiiial
Ciiiirtw of
Ailniiralty.

i f-

' •

1 \
\ (

i j

': y

1 1 '

! !

27 & :iH Vict.
»•. 2.>.

JJfi iSt a? Vict,
0. 88.

Power cif
roliiiiial
IcBifilatiin' iis
to .\<liMinilty
juriwlii'tio'i,

800

5:{ A 54 VICT. c. 27.-JUH. ADM. CT.

[IHIXI,

of (ho IH«;li Court in Bnf/hnid, avIkmi apjilicd
to a Colonial Court ol' iVdniiral'y iu a \\v\\\s\\
po.ssossion, sliall !)»» read as if tlu^ name orilmt
possession wore tlunvin substituted Wn- Uni/ldifl
and WoIoh; and

{!).) A Colonial Court of Admiralty shall have iindti'
th.; Naval Prize Act, IHOI., and under the Sjavi
Trade Act, 187JJ, and any (Miactnient i-elatimr
to prize or the slave trach", th»^ jiu'lsdiction
thereby conferred on a Vice-Admiralty ('unit
and not the jurisdiction tliereby eoMtVnvd
e.Kclusively on the llif;h Court of Adiiiiraltv
or the lliij^h Court of Justice; but, unless tor
the time; beinj^ duly auliiorised, shall not In
virtue of this .Vet (vvercise any jurisdiction
luuler the Naval Prize Act, 18(51, or otlu'vwisc
in relation to prize; and

(f.) A Colonial Court of Admiralty shall not liiivc
jurisdiction und(n' this Act to try tjr ))iinisli a
l)er.son for an oll'ence Avhich according- Id llic
law of J'JiHjhnul is punishable on iudictuieiit ;
and

((/.) A Colonial Court of Admiralty shall not have
any ji;reater jurisdiction in relation to the laws
and rei^ulations relalinu; to Jfer ^Majcstrs
Navy i\^ sc'v, or under any Act providiiii;' lor
the discipline of Her Majesty's Navy, tlmii
mav be from tinu^ to timi^ confei'red on siidi

court bv Order in Council.
( t.) AVhere a Court in a Jh-itish ptjssession exercisi's
in resj)ect of matters arisini;' outside tbt^ body of a county
or other like ])art of a British possession any jurisdiction
cxerciseabk under this Act, that jurisdiction shall lie
deemed to be e.vevcised under this Act and not otherwise.

3. The legislature of a British possession may by any
Colonial law

(«) declare any court of unlimited civil jurisdiction,
Avliether original or appellate, in that jiossos-

l,s.K).l 5.] it 54 Vlt'T. 0. 1.'7.— QUEEN'S SANCTION.

891

icssioii may by any

sloii to bo a Colonial Coiu't of Admiralty, and
])rovi(le Tor tlu; exorcise by such court ol' its
jurisdiction undor this Act, and limit terri-
torially, or otherwise, the extent ol' such juris-
diction ; and
[b) cout'or upon any inferior or suboi'dinato court
in that |)ossossi(m such i)artial or limited
Admiralty jurisdiction under such re«i;ulations
and Avith such a))peal (if any) as may seem lit :
I'l'ovided that any such Colonial law shall not confer

any jurisdiction which is not by this Act conferred upon

a Colonial Court of Admiralty.

4. Evorv Colonial law which is made in i)ursuance of if";""y"""i of
this Act, or alVects the iurisdicition of or practice or pro- •"•• "■ >
ccdiire ni any court or such possession m respect oi the iis>".iit.'
jurisdiction conferred by this Act, or alters any such

Colonial law as above in this section mentioned, which
lias Ih'cu i)reviously passed, shall, unless previously
approved by J [or ^Majesty throui^h a Secretary of State,
(•ithcr be reserved for the sii^nitication of Her ^lajesty's
pleasure thereon, or contain a suspendin<^ clause pro-
vidiiii,' tliat such law shall not come into operation until
llcr Majesty's pleasure thereon has been publicly sij^ni-
licdintlie British })ossession in which it has been i)asse(l.

5. Subject to rules of court under this Act, iudi'inents ''".""'' -^''I'i-
ol'a court m a British jjossossion given or nuule in the

exorcise of the jurisdiction conferred on it l)y this Act,
shall be subject to the like local aj)peal, if any, as judu;-
ments of the court in the exercisj' of its ordinary civil
jurisdiction, and the court having cogiii/anee of such
appeal shall for the purpose thereof possess all the ju-
risdiction by this Act conferred uprn a Colonial Court
of Admiralty.

6.--(l.) The a|)i)eal from a judgment of any court A.irniiMit.N
lua Jintish possession m tlio exercise ol the jurisdiction (jiu.n in
conferred by this Act, either whore there is as of right * """"''''
no local appeal or after a decision on local appoiil, lies
to llcr Majesty the Queen in CouikuI.

; :i

892

53 .t r,i VICT. c. 27.— API'. FROM ADM. CIS [i

HIK),

(2.) Save as may bo otherwise .specially allowed in n
particular cnse by J[er Majesty the (^iiecn In Coiimil,
an apjieal under this section shall not be allowed —
{(t) I'roiu any judi^inent not havini; the cllcct of ,i
definitive judgment unless tln^ court a]>|ii'ali'il
from has <;ivon leave for siu;ii app<'al, nor
{h) from any judi;in«Mit unhiss tin; [M'tition orapiKul
has been lo(l<j;e(l within tin; tinu; presc'rilM(l hy
rul(\s, er if no time is prescribed williju six
months from the date of the jud;j;iii('iit ap-
pealed ai^ainst, or if leave to ap|»eal 1ms Iktu
f^ivi'U then from the (hiti; of such leave.
(J5.) Tor the j)urpose of aj)peals un(hM' this Act, llir
Majesty the Qu<'en in Council and the Judicial Com-
mittee of the Privy Council shall, subj(!ct to ndcs uikIit
this section, have all such powers for niakiii;; and en-
f(n*cin^; judgnuMits, Avhcther interlocutory or linal, lor
punishin<^ contempts, for re(|uirinj5 tbcj ])aynieiil ormomy
into court, or for any other pur|)ose, as may b(> ncccssarv,
or as wer(5 possessed by the lliu;h Court of 1 )t'l('i,'at('s
before the i)assin^ of the Act transferring the powers df
such court to ILer ^fajcvsty in Council, or as arc for the
tinu; beinu; possessed by thi5 J I igh Court in KiKjIoiulm
by the court appealed from in relation to the like iiiatliis
as tho.se forming the subject of appeals un(U'r this .Vet.
(t.) All Orders of the Queen in Council or the Jmli-
cial Committee; of the Privy Council for the piirinNs
aforesaid «n' otherwise in relation to apjx'als imdcrtlii''
Act shall liave full elVect throughout Jfer ^lajcsty's
(h)minions, and in all phices where Jler ^lajcsty li;i»
jurisdiction.

(5.) This section shall be in addition to and not in
derogation of the authority of Tier ^Fajesty in Council
cr th(« Judicial Committee of the Privy Council nrisin:
otherwise than under this Act, ami all enactments re-
lating to appeals to lEer Majesty in Council or to the
powers of Her IVfajesty in Council or the Judicial Com-
mittee of the Privy Council in relation to those a])itt'iils

DM. CTS. [iHfl,,

I'uiirt.

IHOO] ■').'} & 54 VKT. c. 27— RULKS OF ADM. CT.S. 893

whether for inakinj^ rules and orders or otherwise, shall
cxfciid, save as otlier\vis(? directed hy I[(»r Ataj(!sty in
OniiK'il, to ajjpeals to Her Majesty in Council undei'

this Act .

7.— (1.) Kuh's of court lor rei^ulatinii; tlie procedure Ruii-oC
nnd lU'iU'tict^ (includini; I'ees and costs) in a court in a
Hritisli |)os.sessi()n in the; e.vercise of the jurisdiction con-
iVricd hy this Act, whether ori<.;;inal or appellat<', may
lie iimde hy the same authority and in thc^ same maiuier
as rides toucliinsj; the practice, procivlure, iWs, and costs
ill the siiid court in the exercise of its ordinary civil
jiiiisdietion respectively are made:

l'i()vid(Ml that the rules unih'r this section shall not,
siwoas providcMl hy this Act, extend to matters relating
to the slav(» tiiidi;, and shall not (save as provided hy
this section) com«^ into operation until they have heen
iipprovcd hy Her ^raje.sty in Council, hut on cojniui^
into operation shall hav(; full elVect as if enact(Ml in this
.Vet, and any enactment inconsistent therewith shall, so
far as it is so inconsistent, he n'pealed.

(2.) It shall he lawful for iler Majesty in Council, in
a|)|tr()viii<; rules made und(;i' this section, to declare that
the rules so nuule with respect to any matters which
appear to I Ter !>rajesty to he mattcn-s of detail or of local
concern may he revoked, varied, or added to without the?
approval recpiired hy this s(;ction.

{'].) Such rules may provide for the ex(U'ci.se of any
jurisdiction conferred hy this Act hy the full court, or
hy any judg(! or judges ther(H)f, and suhject to any
rules, Avliere the ordinary civil jurisdiction of the court
can ill any case he exercised hy a single judge, and
jurisdiction conferred hy this Act may in the like case
he ('X(>rcised hy a single judge.

8.— (1.) Suhject to the provisions of this section Droits of

plication of any andoftho

Crown.

nothin

droits of Admiraltv or droits of or forfeitures to the

Crow

n in a British possession ; and such droits and for-

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23 WIST MAIN STREET

WEBSTER, N.Y. 14580

(716) 872-4503

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Power to
t'stuMish Vice-
Ailniiralty
Court.

894

53 & 54 VICT. c. 27.— VICE-ADM. CTS.

[1890,

feitiircs, when condemned by a court of a British pos.
session in the exercise of the jurisdiction conferred by
this Act, shall, save as is otherwise provided by any
other Act, be notified, accounted for, and dealt Avitli in
such manner as the Treasury from time to time direct
and tlie officers of every Colonial Court of Admiralty
and of every other court in a British possession exor-
cising Admiralty jurisdiction shall obey such directions
in resp(;ct of the said droits and forfeitures as may lie
from lime to time given by the Treasury.

(2.) It shall be lawful for Her Majesty the Queen in
Council by Order to direct that, subject to any conditions,
exceptions, reservations, and regulations contained In
the Order, the said droits and forfeitures condemned hy
a court in a British possession shall form part of the
revenues of that possession cither for ever or for such
limited term or subject to such revocation as may be
specified in the Order.

(3.) If and so long as any of such droits or forfeiture's
by virtue of this or any other Act form part of the
revenues of the said possession the same shall, subject to
the provisions of any law for the time being applicable
thereto, be notified, accounted for, and dealt with in
manner directed by the Government of the possession,
and the Treasury shall not have any power in relation
thereto.

9. — (1.) It shall be lawful for Her Majesty, by com-
mission under the Great Seal, to empo^Aer the Admiralty
to establish in a British possession any Vice- Admiralty
Court or Courts.

(2.) Upon the establishment of a Vice-Admiralty
Court in a British possession, the Admiralty, l)y writini?
under their hands and the seal of the office of Admiralty,
in such form as the Admiralty direct, may appoint a
judge, registrar, marshal, and other officers of the court,
and may cancel any such appointment ; and in addition
to any other jurisdiction of such court, may (subject to
the limits imposed by this Act or the said connnission

-11 f

■r

1890.]

53 & 54 VICT. c. 27.-RULES OF V.-ADM. CTS. 895

fiom Her Majesty) vest in such court 1. vliolc or any
part of the jurisdiction by or by virtue i iiiis Act con-
ferred upon any courts of thai. British possession, and
may vary or revoke such vesting, { nd while such vesting
is in force the poAver of such last-mentioned courts to
exercise the jurisdiction so vested shall be suspended.
Provided that —

{(i) nothing in this section shall authorise a Vice-Ad-
miralty Court so established in India or in
any British possession having a representative
legislature, to exercise any jurisdiction, except
for some purpose relating to prize, to Iler
JVIajesty's Navy, to the slave trade, to the
matters dealt Avith by the Foreign Enlistment 33 & 34 vict.

c. 90.

Act, 1870, or the Pacific Islanders Protection 35 & 36 vict.
Acts, 1872 and 1875, or to matters in which 38& soviet.
questions arise relating to treaties or conven- "■ ^^'
tions with foreign countries, or to international
law; and
(h) in the event of a vacancy in the office of judge,
registrar, marshal, or other officer of any Vice-
Admiralty Court in a British possession, the
Governor of that possession may a^ipoint a fit
person to fill the vacancy until an appointment
to the office is made by the Admiralty.
(3.) The provisions of this Act with respect to appeals
to Ilcr Majesty in Council from courts in British pos-
sessions in the exercise of the jurisdiction conferred by
this Act shall apply to appeals from Vice-Admiralty
Courts, but the rules and orders made in relation to
appeals from Vice-Admiralty Courts may differ from
tlie rules made in relation to appeals from the said
courts in British possessions.

(4.) If Her Majesty at any time by commission under
tlie Great Seal so directs, the Admiralty shall by writing
under their hands and the seal of the ofiice of Admiralty
abolish a Vice- Admiralty Court established in any
British possession under this section, and upon such ,•
abolition the jurisdiction of any Colonial Court of

•i !

if I

!i
li

Hi'

pr 1 jj

i ■in

Power to
appoint ii vice-
mlmiral.

Exception of
Channel
Islands and
other pos-

Application of
Act to courts
under Foreign
Jurisdiction
Acts.

Kules for
procedure in
slave trade
matters.

36 & 37 Vict.
c. 60.

42 & 43 Vict,
e. 38.

S9G 53 & 54 VICT. c. 27.— WHO VICE-ADMIRAL. [i89o.

Admiralty in that possession which was previously
suspended shall he revived.

10. Nothing in this Act shall affect any power of
appointing a vice-admiral in and for any British posses-
sion or any j)lace therein ; and whenever there is not a
formally appointed vice-admiral in a British possession
or any place therein, the Governor of the possession
shall he ex-officio vice-admiral thereof.

11. — (1.) The provisions of this Act with respect to
Colonial Courts of Admiralty shall not apply to the
Channel Islands.

(2.) It shall 1)0 lawful for the Queen in Council l)y
Order to declare, with respect to any British possession
wliich has not a representative legislature, that tiie
jurisdiction conferred hy this Act on Colonial Courts of
Admiralty shall not he vested in any court of such
possession, or shall he vested only to the partial or
limited extent specified in the Order.

12. It shall he lawful for Her Majesty the Queen in
Council hy Order to direct that this Act shall, subject
to the conditions, exceptions, and qualifications (if am)
contained in the Order, apply to any Court estalilislied
hy Her Majesty for the exercise of jurisdiction in any
place out of Her Majesty's dominions which is named
in the Order as if that Court were a Colonial Court of
Admiralty, and to provide for carrying into effect sucli
application.

13.— (1.) It shall he lawful for Her Majesty tlio
Queen in Council hy Order to make rules as to tlic
practice and procedure (including fees and costs) to lie
observed in and tlic returns to be made from Colonial
Courts of Admiralty and Vice- Admiralty Courts in the
exercise of their jurisdiction in matters relating to the
slave trade, and in and from East African Courts as
defined hy the Slave Trade (East African Courts) Acts,
1873 and 1879.

1890.]

63 & 64 VICT. c. 27.— SLAVE TRADE.

897

(2.) Except when inconsistent Avith such Order in
Council, the rules of court for the time heing in force in
a Colonial Court of Admiralty or Vice- Admiralty Court
shall, so far as applicable, extend to proceedings in such
court in matters relating to the slave trade.

(3.) The provisions of this Act Avitli respect to appeals
to Her Majesty in Council, from courts in British
possessions in the exercise of the jurisdiction conferred
by this Act, shall apply, with the necessary raodificjitions
to appeals from judgments of any East African Court
made or purjiorting to he made in exercise of the juris-
diction under the Slave Trade (East African Courts)
Acts, 1873 and 1879.

14. It shall he lawful for Her Majesty in Council gotd/'
from time to time to make Orders for the purposes
authorised hy this Act, and to revoke and vary such
Orders, and every such Order while in o])eration shall

have effect as if it were part of this Act. [See for old
rules m re Admiralty appejils, &c., O. in C. 11 Dec.
1865; TFeekli/ Notes, 27 Jan. 18(56, p. U.]

15. In the construction of thi** Act, unless the context interpretmion.
otherwise req ires, —

The expression " representative legislature " means,
in relation to a British possession, a legislature
comprising a legislative body of which at least ou(»
half are elected by inhabitants of the British pos-
session.

The expression " unlimited civil jurisdiction " means
civil jurisdiction unlimited as to the value of the
subject-matter at issue, or as to the amount that
may be claimed or recovered.

The expression •' judgment " includes a decree, order,
and sentence.

Tile expression ** appeal " means any appeal, rehearing,
or review ; and the expression " local appeal " means
an appeal to any court inferior to Her Majesty in
Council.

a 3840, 3 L

>\<

898

53 & 64 VICT. c. 27.— IN FORCE FROM.

[1890.

Commence-
snent of Act.

26 & 27 Viet,
c. 24.

The expression " Colonial law " means any Act, ordi.
nance, or other law having the force of legislative
enactment in a British possession and made by any
authority, other than the Imperial Parliament or
Her Majesty in Council, competent to make laws for
such possession.

16. — (1.) This Act shall, save as otherwise in this
Act provided, come into force in every British possession
on the first day of July one thousand eight hundred and
ninety-one.

Provided that —

(«.) This Act shall not come into force in any ,)f the
British possessions named in the Eirst Schedule
to tliis Act iintil Her Majesty so directs l)y
Order in Council, and until the day named in
that behalf in such Order ; and
(fi ) If before ly day above mentioned rules of court
for the Colonial Court of Admiralty in anv
British possession have been approved hy Her
Majesty in Council, this Act may be pro-
claimed in that possession by the Governor
thereof, and on such proclamation shall come
into force on the day named in the procla-
mation.
(2.) Tlie day upon which this Act comes into force in
any British possession shall, as regards that British pos-
session, be deemed to be tlie commencement of this Act,
(3.) If, on the commencement of this Act in anj j
British possession, rules of court have not been approved I
by Her Majesty in pursuance of this Act, the rules in
force at such commencement under the Vice- Admiralty
Courts Act, 1863, and in India the rules in force at |
such commencement regulating the respective Vice-
Admiralty Courts or Courts of Admiralty in Inilio,
including any rules made with reference to proceedings I
instituted on behalf of Her Majesty's sliips, shall, so far!
as applicable, have effect in the Colonial Court or Courts j
of Admiralty of such possession, and in any Vice-

1891).]

53 & 54 VICT. 0. 27— COL. CT. FEES,

809

Admiralty Court established under this Act in that
possession, as rules of court under this Act, and may be
revoked and varied accordingly ; and all fees payable
under such rules may be taken in such manner as the
Colonial Court may direct, so however that the amount
of each such fee shall so nearly as practicable be paid to
the same officer or person who but for the passing of
this Act would have been entitled to receive the same in
respect of like business. So far as any such rules are
inapplicable or do not extend, the rules of court for the
exercise by a court of its ordinary civil jurisdiction shall
have effect as rules for the exercise by the same court
of the jurisdiction conferred by this Act.

(4.) At any time after the passing of this Act any
Colonial law may be passed, and any Vice- Admiralty
Court may be established and jurisdiction vested in such
Court, but any such law, establishment, or vesting shall
not come into effect until the commencement of this Act.

17. On the commencement of this Act in any British Abolition of

" Vice-Adniiralty

possession, buu subject to the provisions of this Act, Courts.

eveiy Vice- Admiralty Court in that possession shall be

aboUshed ; subject as follows, —
(1.) All judgments of such Vice- Admiralty Court
shall be executed and may be appealed from in
like manner as if this Act had not passed, and
all appeals from any Vice-Admiralty Court
pending at the commencement of this Act
shall be heard and determined, and the judg-
ment thereon executed as nearly as may
be in like manner as if this Act had not
passed :
(2.) All proceedings pending in the Vice-Admiralty
Court in any British possession at the com-
mencement of this Act shall, notwithstanding
the repeal of any enactment by this Act, be
continued in a Colonial Court of Admiralty
of the possession in manner directed by rules
of court, and, so far as no such rule extends,

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63 & 54 VICT. c. 27.— COMPENSATION.

[1890.

in like manner, as nearly as may bo, as if tliey
had been originally, begun in such court :

(3.) Where any person holding an office, Avhothcr tliat
of judge, registrar, or mor.shal, or any other
office in any such Vice- Admiralty Court in a
British possession, suffers any pecuniavy loss
in consequence of the abolition of such court,
the Government of the British possession, on
complaint of such person, shall provide that
such person shall receive reasonable compensa-
tion (by Avay of an increase of salary or a
capital sum, or otherwise) in respect of liis loss,
subject nevertheless to the performance, if
required by the said Government, of the like
duties as before such abolition :

(4.) All books, papers, documents, office furniture,
and other things at the commencement of this
Act belonging, or appertaining to any Vice-
Admiralty Court, shall be delivercrl over to the
proper officer of the Colonial Court of Ad-
miralty or be otherwise dealt Avith in such
manner as, subject to any directions from Her
Majesty, the Governor may direct :

(5.) Where, at the commencement of this Act in a
British possession, any person holds a commis-
sion to act as advocate in any Vice- Admiralty
Court abolished by this Act, either for Her
Majesty or for the Admiralty, such commission
shall be of the same avail in every com't of
the same British possession exercising jurisdic-
tion under this Act, as if such court were the
court mentioned or referred to in such com-
mission.

Repeal. 18. The Acts Specified in the Second Schedule to this

Act shall, to the extent mentioned in the third column
of that schedule, be repealed as respects any British
possession as from the commencement of this Act in
that possession, and as respects any courts out of Her

1890.]

53 A 54 VICT. u. 27.— REPEALS.

901

Majesty's dominions as from tho date of any Order
applying this Act :

Provided that—

[a.) Any appeal against a judgment made before
the commencement of this Act may be bron^jht
and any such appeal and any proceedings or
appeals pending at the commencement of tliis
Act may be carried on and completed and
carried into effect as if such repeal had not
been enacted ; and

[b.) All enactments and rules at the passing of this
Act in force touching the practice, procedure,
fees, costs, and returns in matters relating to
the slave trade in Vice-Admiralty courts and
in East African courts shall have effect as
rules made in pursuance of this Act, and shall
apply to Colonial Courts of Admiralty, and
may be altered and revoked accordingly.

SCHEDULES.

FIRST SCHEDULE.

British Possessions in which Operation of Act is delated. Section lo.

New South Wiiles.

Victoria.

St. Helena.

British Hondtirafi. ' •

SECOND SCHEDULE. Section 18.

Enactments Repealed.

Sepsion and Chapter.

Title of Act.

Extent of Repeal.

56 Geo. 3. c. 82.

An Act to render valid
the judicial Acts of
Surrogates of Vice- Ad-
miralty Courts abroad,
during vacancies in
office of Judges of such
courts.

The whole Act.

i-.

'I 1

' .

■!

!; 1

,■

'. ■

602 63 it 54 VICT. c. 27.— Acts REPEALED. [i89o,

Second Schedule— Enactinonts Repealed — tout.

Session and Chapter.

Title of Act.

Extent of Report.

2&3Will.4. 0.51.

3&4Will.4. C.41.

6 & 7 Vict. c. 38.

I ■ ■ I

7 & 8 Vict. 0. 69.

An Act to regiilute the
practice and the fees
in the Vice-Admiralty
Courts abroad, and to
obviate doubts ns to
their jurisdiction.

An Act for the better ad-
ministration of justice
in His Majesty's Privy
Council.

An Act to make further
rejyulations for facili-
tating the hearing ap-
peals and other matters
by the Judicial Com-
mittee of the Privy
Council.

The whole Act.

An Act for amending an
Act passed in the fourth
year of the reign of His
late Majesty, intituled,
" An Act for the bet-
" ter administration of
" justice in His Ma-
" jesty's Privy Coun-
" oil," and to extend its
jurisidiction and powers,

Section two,

In .section two, the wonls
" or from any .\ilniii'-
" alty or Vicc-Adniir-
" alty Court," anil tlie
words "or the Lmls
" Couiuiis.'iioiiprs nf
" Appeals in prize
" causes or their siir-
" rogutes."

In section tiirei', the
words " and tho lli|rh
" Court (if Admiralty
" of England," and tlie
words " and fi'oin any
" Admiralty or Vice-
" Admiralty Court."

In section live, from the
first " the High Court
" of A(lniiralty,"tolhe
end of the section.

In section seven, tlie
words "and from Ail-
" miralty or Vice-Ad-
" miralty Courts,"

Sections nine and ten,
so far as relates to
maritnue causes.

In section twelve, the
words " or maritime."

In section fifteen, the
words "and Admiralty
and Vice-Admiralty.''

In section twelve, the
words " and from Ad-
" miralty and Vice-
" Admiralty Courts,"
and so much of the
rest of the section as
relates to uiaritiiue
csiuses.

n [jff

fiET). [1890.

Jxtent of Ri'port.
whole Act.

iou two.

ec'tion two, thowonb
or from iniy Admir-
ttlty or Vici'-Adiiiir-
alty Court," and the
rords "or the Lrrds
' CouiinissioiiPi's nt
' Apiiculs in prize
' causes or their sur-
' rogatt'S."

section tliret', tlie
Yords " and tho Hijjii
' Court of Admiralty
' of England," and tlie
ivords " and from iiiiy
« AdniiraUy or Vice-
' AdmiraUy Court."
section live, from tlie
[irst " the High Camt
" of A<innraUy,''totlie
end of the section.

sei'tion seven, tlu'
words " anil from Ad-
" niiralty or Vice-Ad-
" unralty Courts."
ctions nine and teu,
so far as relates to
marituue causes.

section twelve, the
words " or maritime."
section fifteen, the
words "and Admiralty
and Vice-Admiralty."
1 section tweh-e, the
words " and from Ad-
" miralty and Vice-
" Admiralty Courts,
and so much of the
rest of the section as
relates to uiantuuf
causes.

1892.] 86 VICT. c. 6.— COL. PROBATES,

Second Schedule — Enactments Repealed — cont

Sesiion and Chapter

003

Title of Act.

Extent of Report.

28 Vict. c. 24. - The Vice - Admiralty

Courts Act, 1883.
30 & 31 Viet. c. 45. The Vice - Admiralty
I Courts Act Amend-
ment Act, 1867.
36 & 37 Vict. c. 59. The Slave Trade (East
I African Courts) Act,
' 1873.
36 & 37 Vict. c. 88. The Slave Trade Act,
1873.

38 & 39 Vict. c. 51. ' The Pacific Islanders
Protection Act, 1875.

The whole Act.
The whole Act.

Sections four and five.

Section twenty as far as
relates to the taxation
of any costs, charges,
and expenses which
can be taxed in pur-
suance of this Act.

In section twenty-three,
the words " under
" the Vice-Admiralty
" Courts Act, 1863."

So much of section six
as authorises Her Ma-
jesty to confer Admi-
ralty jurisdiction on
any court.

66 VICT. (1892) c. 6.

An Act to provide for the Recognition in the
United Kingdom of Probates and Letters of
Administration granted in British Possessions.

[20th May 1892.]

BE it enacted by the Queen's most Excellent Majesty,
by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same,

as follows :

\, Her Majesty the Queen may, on being satisfied Application
that the legislature of any British possession has made orde'r \n
adequate provision for the recognition in that possession ^ouncd.
of probates and letters of administration granted by the

I I

904

65 VICT. c. 6.— RECOG. OF PROBATES.

[I«fl2

Smlin^ ill
United
Kiiigduin uf
colonial pro-
biitus and
letti'in of
iulniinist ra-
tion.

courts of the United Kingdom, dii'(;ct ])v Order in
Council that this Act shall, siihjc^ct to any oxc('|)ti(jiis
and modifications specified in the Onhn*, apply to tlmt
possession, and thereupon, v/hilc the Order is in force
this Act shall apply accordingly.

2. — (1.) Where a court of probate in a British pos.
session to which this Act api)lies has granted [jrobatc oi'
letters of administration in respect of the estate of a
deceased person, the probate or letters so grniitod in;n
on being produced to, and a copy thereof deposited with
a court of probate in the United Kingdom, be sealed
with the seal of that court, and, thereupon, shall be of
the like force and effect, und have the same operation in
the United Kingdom, as if granted by that court.

(2.) Provided that the court shall, before sealing a
probate or letters of administration under this section,
be satisfied —

(a.) that probate duty has been paid in respect of so
much (if any) of the estate as is liable to
probate duty in the United Kingdom ; and
(i.) in the case of letters of administration, that
security has been given in a sum suIHcient in
amount to cover the property (if any) in the
United Kingdom to which the letters of ad-
ministration relate ;
and may require such evidence, if any, as it thinks fit
as to the domicile of the deceased person.

(3.) The court may also, if it thinks fit, on the appli-
cation of any creditor, require, before sealing, that
adequate security be given for the payment of debts due
from the estate to creditors residing in the United
Kingdom.

(4.) For the purposes of this section, a duplicate of
any probate or letters of administration sealed with the
seal of the court granting the same, or a copy thereof
certified as correct by or under the authority of the
court granting the same, shall have the same effect as
the original.

•l\\

\m.]

55 VICT. e. (i.— PllOBATES IN U. K.

905

(6.) llulos of court may bo made for rof^ulating the ; ' •
procedure and practice, including fees and costs, in
courts of the United Kingdom, on and incidental to an
application for sealing a pro1)ate or letters of adminis-
tration granted in a British possession to Avliich this Act
applies. Such rules shall, so far as they relate to
probate duty, be made with tlie cons(Mit of the Treasury,
and subject to any exceptions and modillcations made
bv such rules, the enactments for the time being in
force in relation to probate duty (including the penal
provisions thereof) shall apply as if the person
who applies for sealing under this section were a
person applying for probate or letters of adminis-
tration.

3. This Act shall extend to authorise the sealing in Application
the United Kingdom of any probate v letters of ji'Uain- iVritisU
isti ition granted by a British court in a for-ign country, fore'igV"
in like manner as it authorizes the sealing of a probate countries,
or letters of administration granted in a British possession
to which this Act applies, and the provisions of this
Act shall apply accordingly with the necessary modifi-
cations.

4. — (1.) Every Order in Council made under this Orders in
Act shall be laid before both Houses of Parliament as
soon as may be after it is made, and shall be published
under the authority of Her Majesty's Stationery Office.

(2.) Her Majesty the Queen in Council may revoke
or alter any Order in Council previously made under
this Act.

(3.) Where it appears to Her Majesty in Council that
the legislature of part of a British possession has power
to make the provision requisite for bringing this Act
into operation in that part, it shall be lawful for Her
Majesty to direct by Order in Council that this Act shall
apply to that part as if it were a separate British pos-
session, and thereupon, while the Order is in force, this
Act shall apply accordingly. ;:

II Jii

■ !

Appli
of Act to
probntes, &c.
alreiid/
granted.

Definitions.

Short title.

906

55 & 56 VICT. c. 62.— B. C. LOAlSi .

[1892,

5. This Act when applied by an Order in Council to
a British possession shall, subject to the provisions of
the Order, apply to probates and letters of administration
granted in that possession either before or after the
passing of this Act.

6. In this Act —

The expression " court of probate " means any court
or authority, by whatever name designated, having
jurisdiction in matters of probate, and in Scotland
means the sheriff court of the county of Edinburgh :

The expressions " probate " and " letters of adminis-
tration " include confirmation in Scotland, and any
instrument having in a British possession the same
effect which under English law is given to probate
and letters of admini^'tration respectively :

The expression " probate duty " includes any duty
payable on the value of the estate and effects for
which probate or letters of administration is or are
granted :

The expression "British court in a foreign country"
means any British court having jurisdiction out of
the Queen's dominions in pursuance of an Order in
Council, whether made under any Act or otherwise.

7. This Act may be cited as the Colonial Probates
Act, 1892.

65 & 56 VICT. (1892) c. 52.

An Act to authorise an Advance to the Government of
the Province of British Columbia. [21th June 1892.]

WHEREAS an arrangement has been made with the Government
of the Province of British Columbia for the transfer to and
settlement upon the sea coast and islands of that province of a number
of families from the parishes in Scotland to which the Crofters' Holdings
(Scotland) Act, 1886, by virtue of a determination under srction nine-
teen of that Act applies (in this Act referred to as "crofter parishes"),
and with a view to carrying into effect the arrangement, it is expedient '.3
authorise a temporary advance out of the Consolidated Fund of the
United Kingdom to the said Govenunent :

onial Probates

:r i^

1892.]

55 & 56 VICT. c. 52.— CROFTERS' LOAN.

907

Advancfl of
150,000/. by
Treasury to
Government
of British
Columbia,

And whereas by an Act of the Legislative Assembly of the .said Pro-
vince the Lieutenant-Governor in Council is authorised to accept the said
Loan, and to pledge the credit of the Province for the repayment thereof :

Be it therefore enacted by the Queen's most Excellent Majesty, by
and with the advice and consent of the Lords Spiritual and Temporal,
and Commons, in this present Parliament assembled, and by the autho-
rity of the same, as follows :

1, This Act may be cited as the British Columbia (Loan) Act, 1892. Short title.

2.— (1.) In order to assist the Government of the Province of British
Coiiiin/iia to transfer to and settle upon the sea coast and island.** of that
Province families from the crofter parishes of Scotlanil, the Treasury
may, before the first day of January one thousand eight hundred and
ninety-eight advance to the said Government, on the security lierein-after
mentioned, any sum or sums not exceeding in the whole one hundred and
iifty thousand pounds, which shall be applied by the said Govermnent for
the purpose of effecting the said transfer and settlement on proper con-
ditions.

(2.) The said Government shall repay e\ ery sum ad\anced by equal
half-yearly instalments within thirty years from the date of its advance,
and the first of such in.stalments shall be paid within five years from the
date of the advance.

(3.) The said Government shall pay interest half-yearly at the rate
of three per cent, per anniun on the amounts advanced for the time
being and not reiMiid.

(4.) The Treasury may agree to add to an advance uU or any jwirt of
the interest accruing thereon in each of the first fiv(> years, and the interest
30 added in each year shall be deemed thereafter to form part of the
advance, but to be in addition to the maximum advanc(! authorised by
this Act.

3^ — (1.) The said loan shall be advanced in instalments of not more Conditions of
than fifty thousand pounds each. advance.

(2.) Before advancing the first instalment the Treasmy .shall he satis-
tied, by such evidence as they require, that suitable arrangements are
made for the said purpose.

(3.) Before advancing any instalments after the first the Treasury
shall be siitisfied by such evidence as they require that the i)rior instal-
ment or instalments have been duly expended for the said purpose, and
that suitable arrangements have been made or are continued for the said
purpose.

(4.) An advance in pursuance of this Act shall not be made until the
Government of the Pronnce of British Columbia has deposited in such
manner as the Treasury require such number of the «lebentures herein-
after mentioned as in nominal amount are eqnid to the amount of the
advance, inclusive of any interest which is likely to be added to the
iidvance.

(5.) The del)ent»n'es shall ho del»entures of the said Go\ernment issued
in pursuance of Act numl)er sixty-one of 1892 passed by the Legislative
Assembly of the said Province, or of an Act to be hereafter passed by
the said Legislative Assembly, and shall bear interest at the rate of three
lier cent, per atmuni, and have coupons atttiched for such interest for not
le:.-ithan thirty years: Provided that the Treasury shall not dispose of
Huy such debenture or coupon otherwise than by returning the same to
the said Governuient until default is made in payment of any principal
or interest for the time being due from that Government in respect of
the advance.

i !

908

Law of the
Province not
to impair
validity of
charge.

Issue and
raising of
advances and
application of
sums repaid.

^ ;

Extension of
29 & 30 Vict.
e. 26. to bonds.

Count of
advances.

65 & 56 VICT. c. 35.— COL. STOCK.

V^n^.

(6.) If it appears to the Treasury that the purposes of this Act have
been abandoned before the whole of an advance or any part thereof
has been expended, they may require the Government of the Province
to repay the amount not so expended, and that Government shall repay
the same.

4. Every Act hereafter passed by the Legislature of the Province of
British Columbia which in any way impairs the validity or prioritv of the
charge upon the revenues of the Province of the principal or interest of
any advance made or debenture deposited in pursuance of this Act shall
so far as it impairs such validity or priority, be void unleds the previous
consent of the Treasury has been obtained.

5. — (1) Every advance under this Act shall be charged on and issued
out of the Consolidated Fund of the United Kingdom or the growing
produce thereof.

(2.) For the purpose of borrowing the amount of the advance, or
money to repay to the Consolidated Fund the advance, or of paying olf
any money borrowed or security issued under this section, the Treasury
may, if they think fit, issue exchequer bonds, or exchequer bills, or
treasury bills, or otherwise borrow on the credit of the charge created
by this Act on the Consolidated Fund, or do all of such things, and the
sum arising from such issue or borrowing shall be paid into the Ex-
chequer.

(3.) The principal and interest of all securities issued or suras hor-
rowed under this section shall be charged upon and issued out of the
Consolidated Fund of the United Kingdom or out of the growing produce
thereof.

(4.) Every exchequer bond issued in pursuance of this Act shall be
for a sum of not less than one hundred pounds, and shall provide for
the paying off of such bond at par at any period not exceeding five years
nor less than twelve months from the date of such bond.

(5.) All sums paid by the Government of the Province in respect of
the principal of or intertst on any advance under this Act, and all sums
arising from the disposal of any debentures deposited in pursuance of
this Act or of the coupons thereof shall be paid into the Exchequev.

6. Section fifteen of the Fxcheqtier Bills and Bonds Act, 1866 (which
section relates to the forgery ol" exchequer bills) shall apply to all
exchequer bonds issued in pursuance of this Act in like manner as if it
were herein enacted with the substitution of exchequer bond for ex-
chequer bill.

7. An account of all sums issued out of the Consolidated Fund in
pursuance of this Act, and of all sums paid by the Government of the
Province of British Columbia in respect of the interest or principal of
any advance in pursuance of this Act, shall be annually laid before
Parliament in such form as the Treasury direct, so long as any such
advance remains outstanding.

55 & 56 VICT. (1892) c. 36.

An Act to amend the Colonial Stock Act, 1877, so far
as regards the mode of transfer of Stock to which
that Act applies. [21 th June 1892.]

E it enacted by the Queen's most Excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Temporal, aud

1892.] 55 & 56 VICT. c. 3d.— STOCK TRANSFERRED. 909

Commons, in tliis present Parliament assembled, and by the authority of
the same, as follows :

1, '•"liis Act may be cited as the Colonial Stock Act, 1892, and this Short title.
Act and the Colonial Stock Act, 1877, may be cited together as the 40 & 41 Vict.
Colonial Stock Acts, 1877 and 1892. *=• ^^•

2. — (I.) Any stock issued after the passing of this Act to which the Amendment of
Colonial Stock Act, 1877, applies may, if so provided by regulations 4o & 41 Vict,
under section sixteen of that Act (which regulations the registrar is ''• ^^- "*
hereby authorised to make), be transferred by (leed according to the form ortmnsf^^o/
in the schedule to this Act, or to the like effect, and such deed, when stock,
duly executed by all parties, shall be delivered to the registrar and kept
bv iiim, and a memorial thereof shall be entered in the register.

(2.) On demand of the holder of any stock transferable by d'-ed the
registrar shall cause a certificate of the proprietorship thereof to be
delivered to each holder, and such certificate shall be prima facie evi-
dence of the title of the holder to the stock therein specified ; neverthe-
less the want of such certificate shall not prevent the holder of any
stock from disposing thereof.

(3.) Where stock of a colony has been issued before the passing of
this Act, and the regulations for the transfer of such stock provide for
its transfer in like manner as is authorised by this Act, the Government
of the colony, if desirous that the Colonial Stock Act, 1877, as amended
by this Act, should ajjply to the said stock, may, by declaration made,
deposited, and recorded in like manner as a declaration adopting that Act,
declare such desire, and identify the stock with reference to which the
declaration is made and thereupon this Act shall apply as if it had been
enacted before the issue of the stock and the said regulations had
been made in pursuance of section sixteen of the Colonial Stock Act,
1877.

(4.) Section nineteen of the Colonial Stock Act, 1877, shall not apply
to any stock in I'espect to which the provisions of that section have not
been ol)served before the passing of that Act.

(5.) A declaration under this Act may be made whether there has or
has not been a prior declaration applying to the stock the Colonial Stock
Act, 1877.

3. This Act shall apply to the Isle of Man in like manner as if section Application of

six of tlie Isle of Man Loans Act, 1880, referred to the Colonial Stock Act to Isle of

Act, 1877, as amended by this Act, and that section shall be deemed to ^g ^" . , y.

have authorised the Government of the Isle of Man to provide for the ^ 3^
transfer of stock in manner provided by this Act,

lii

I, or we,

SCHEDULE.
\^Here identify $tock.'\

Stock

Seller.

in consideration of the sum of £

paid by

being the consideration money for
pounds stock Money,

do hereby transfer the said stock [together with the ii:tere.st accrued
thereon since the last half-yearly payment of such interest] to the said
transferee.

And the said transferee hereby accepts the transfer of the same Buyer,

subject to the conditions on which the transferor held the same.

ifi

,■ I

lltfl

}' i

I 1

f !i

II \

910

57 VICT, c, 2.— BEHEING ACT.

[IK!)4.

Witnes.s our hnnds and .seals this day of

eight hundred and ninety

Signed, sealed, and delivered hy the above-named

in the presence oF

Signature of ]^
witness - j

Aildress

OIli' tlliiils:

mil

Occupation

Signed, sealed, and delivered by the above-named

in the presence of

Signature of

witness

Address

Occupation_

67 VICT. (1894) c. 2.

Behring Sea Award Act.

An Act to provide for carrying into eftect the
Award of tlie Tribunal of Arbitration cou-
stituted under a Treaty between Her
Majesty the Queen and the United SMcs
of America. [23rd April 1894.

WHEREAS by a treaty between Her :Majo.sty the
Queen and the Government of the rniled
States of America various questions which had arisen
respecting the taking and preservation of the fiu* seal in
the North Pacific were referred to Arbitrators as men-
tioned in the treaty :

And whereas the award of such arbitrators (in tliis
Act referred to as the Behring Sea Arbitration A\\m\)
dated the fifteenth day of August one thousand eiglit
hundred and ninety-three, contained the provisions set
out in the First Schedule to this Act ; and it is ex-
pedient to provide for carrying the same into effect :

!" ' f ' in

1894.]

57 VICT. c. 2.— ACT KEPT ALIVE.

011

Be it therefore enacted, by the Queen's most Excellent
Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority of
the same, as follows :

1. — (1.) The provisions of the Behring Sea Arbitra- Enaetmentof
tlon Award set out in the First Schedule to this Act arbitrators*
shall have effect as if those provisions (in this Act re- s.,ectlng°the
fei'i'cd to as the scheduled provisions) were enacted by this ''^^ '*'"'■
Act, and the acts directed by Articles one and two there-
of to be forbidden were expressly forbidden by this Act.

(2.) If there is any contravention of this Act, any
person committing, procuring, aiding, or abetting such
contravention shall be guilty of a misdemeanor within
the meaning of the Merchant Shijiping ^Lct, 1854 (^), and n & is vict.
the ship employed in such contravention and her equip-
ment, and everything on board thereof, shall be liable
to he forfeited to Her Majesty as if an offence had been
committed under section one hundred and three (^) of the
said Act ; Provided that the court, without prejudice to
any other power, may release the ship, equipment, or
thing, on payment of a fine not exceeding five hundred
pounds.

(3.) The provisions of the Merchant Shipping Act,
1851, with respect to official logs(*) (including the penal
provisions) shall apply to every vessel engaged in fur
seal fishing.

(4.) Every person who forges or fraudulently alters
any hcence or other document issued for the purpose of
Article four or of Article seven in the First Schedule to
this Act, or who procures any such licence or document
to be forged or fraudulently altered, or who knowing
any such licence or document to be forged or fraudu-
lently altered uses the same, or who aids in forging or
fraudulently altering any such licence or document,

(') So far as necessary the Act of 1854 is kept alive by s. 74.5 (/) of 67 & 58 Vict,
c. 60.
(') See sees. 69 to 71 ; 67 (2) & 76 of 67 & 68 Vict. c. 60.
(') .Ss. 280 & 284 uf ubove cited Act, ami nee ss. 239, 2U of J7 & 58 \'iet. c. 60.

! !

lllil

I [1

¥\i\

912

17 & 18 Vict.
c. 104.

39 & 40 Viet,
e. 80.

Provision as to
ship's papers.

Orders in
Council.

57 VICT. c. 2.— SEIZURE OF SHIP.

[1894.

shall bo guilty of a misdemeanor within the moaning of
the Merchant Shipping Act, 1854,

(5.) Subject to this Act, the provisions of sections
one hundred and threo(') and one hundred and four and
Part Teni^) of the Merchant Shipping Act, 1851<, and of
section thirty-i'our('') of tlie Merchant Ship])ing Act, 1 87(5,
which are set out in the Second Schedule to this Act,
shall apply as if they were heroin re-enacted, and in
terms made applicable to an offence and forfeiture under
this Act ; and any commissioned officer on full pay in
the naval service of Her Majesty the Queen may seize
the ship's certificate of registry.

2. — (1.) Where an officer seizes, under this Act, a
ship's certificate of registry, he shall either retain the
certificate and give a provisional certificate in lieu
thereof, or return the certificate with an indorsement of
the grounds on Avhich it was seized, and in either case
shall direct the ship, by an at lition to the provisional
certificate or to the indorsement, to proceed forthwith to
a sj)ecified port, being a port where there is a British
court having authority to adjudicate in the matter, and
if this direction is not complied with, the owner and
master of the ship shall, without prejudice to any other
liability, each be liable to a fine not exceedinj? one
hundred pounds.

(2.) Where in pursuance of this section a provisional
certificate is given to a ship, or the sliij)'s certiticato is
indorsed, any officer of customs in Her Majesty's
dominions or British consular officer may detain the
ship until satisfactory security is given for her appear-
ance in any legal proceedings • ''ulj may he taken
against her in pursuance of tlii;^ •

3. — (1) Her Majesty the 0; a in Council may
make, revoke, and alter orders for carrying into effect
the scheduled provisions, and this Act, and every such

(') S. 76 of 57 & 58 Vict. e. 60.
(-') Part 13 ibid.
(») S. 692 ihid.

tiP- [1894.

he mpaning of

ins of s(^ctions
(I and four and
:t, 1851, and of
l)in;jfActJ87(),
lo to this Act,
macted, and in
brfeitui'e under
on full pay in
leen may seize

ler tins Act, a

thor retain the

ificato in lieu

indorsement of

. in cither case

the provisional

;ed forthwith to

sre is a British

;he matter, and

the owner and

ce to any other

exceedini? one

on a i)rovisioiial
)'s certiticate is

Her Majesty's
may detain the
for her appear-

may bo taken

1 CoiDicil mav
ying into effect
and every such

1H94.] 57 VICT, c, 2.— U.S. & BRIT. SUBJECTS.

913

Order shall bo forthwith laid before both Houses of
Parliament and published in the London Gazette, and
shall have effect as if enacted in this Act.

(2.) If there is any contravention of any regulation
made by any such Order, any person committing,
procm-ing, aiding, or abetting such contravention
shall he liable to a penalty not exceeding one hundred
pounds.

(;}.) An Order in Council und(n* this Act may provide,
that such officers of the United States of America as
are specified in tlic Order may, in rc^spect of offences
under this Act, exercise tlio like powers under this Act
as may be exercised by a commissioned officer of Her
llajcsty in relation to a British ship, and the equipment
and certificate thereof, or such of those powers as appear
to Her Majesty in Council to be exerciseablc under the
law of the United States of America against \ hips of the
United States; and that such British officers as are
specified in the Order may exercise the powers conferred
by this Act, with any lecessary modifications speci-
fied in the Order, in relation to a ship of the United
Stoles of America, and the equipment and certificate
thereof.

4.— (1.) Where any offence under this Act has been Liability of
committed by some person l)elonging to a sliip, or by inuiishmcnt.
means of a ship, or the equipment of a ship, tlie master
of the ship shall be deemed guilty of such offence, and
the ship and lier eqviipment shall be liable to forfeiture
under this Act ;

(2.) Provided that if it is proved that the master
issued proper orders for the observance, and used due
diligence to enforce the observance of this Act, and the
regulations in force thereunder, and that the offence in
question was actually committed by some other person
without his connivance, and that the actual offender lias
been convicted, or that he has taken all proper means
in his power to prosecute such offender, if alive, to con-
viction, the master or the ship shall not be liable to any

i ■

S 2340.

3 M

QSCSnii'' L'SilSiSTI '-•

!.lil

I-: i

5 I

;

Dt'fliiilioiiH,

Short title.

Commence-
ment of Act.

Duration of
Act.

914

67 VICT. c. 2.— DURATION OF ACT.

[1894.

penalty or forfeiture other than such sum as will pvoA-ont
any profit accruing by reason of the offence to the
master or crew or owner of the ship.

5. The expression ** equipment" in this Act incliulcs
any hoat, tackle, fishinsf or shooting instrumtMits, aiid
other things belonging to a ship.

6. This Act may he citetl as the Behring Sea Award
Act, 1894.

7. — (1.) This Act shall come into operation on tlie
first (lay of May one thousand eight hundred and ninety-
four, provided that Her Majesty in Council, if at aiiv
time it appears expedient so to do, having regard to the
circumstances Avliich have then arisen in relation to the
scheduled provisions or to the enforcement thereof, may
suspend the operation of this Act or any part thereof
during the period mentioned in the Order, and the .same
shall he suspended accordingly.

(2.) "Where on any proceeding in any court against a
person or ship in respect of any offence under thi.s Act
it is proved that the ship sailed from its port of de.
parture before the provisions of the award mentioned in
the First Schedule to this Act Avere knoMii there, and
that such person or the master of the ship did not,
after such sailing and before the alleged offence,
become aware of those provisions, such person shall l)o
acquitted, and the ship shall l)e released and not for-

8. This Act shall remain in force so long as
the scheduled provisions remain in force and no
longer ;

Provided that if by agreement between Her Majesty
the Queen and the Government of the Vnited States of
America, the scheduled provisions are modifiod, then
Her Majesty in Council may order that this Act shall,

rl!! l^nW '

I'ing Soa Award

'ce so long as
force and no

18^t,] 57 VICT. c. 2.— LICENCE TO KILL SEALS. 915

subject to any modifications specified in tho order,
apply, and the same shall accordingly apply, to the
modified provisions in like manner as if they were set
out in the First Schedule to this Act.

SCHEDULES.

FIRST SCHEDULE.

Provisions in AwAitn of tlio TninnxAL of AnniTRATiON constitiitPd
imdor till' Troaty coiicliKlcd nt Washingfon on flio 20th of
Fi'bniiiry 1802, iM'tsvoon Hkr Ma.iksty thk (^rnKx and the
rMTKn States of America.

And wlioroas the aforesaid doterinination of the foregoing qnestlons
ss to the exchi.sive jurisdiction of the United States mentioned in
.illicit' VI. leaves' the subject in such a position that the concurrence of
(rrffl< Britain is necessary to the esUiblishnient of Regulations for the
proper protection and preservation of the fur-seal in or habitually
n'sortiiig to the Behring Sea, the Tribunal having decided by a majority
;i< to ciidi Article of the following Reguhitions, we, the said Baron de
Couiwi, Loi'd Hannen, Marqtiis Viseonti Venosta, and Mi". (Iregers
(iniiii, assenting to the whole of tht; nine Articles of the following Regii-
liitioiis, iiud being a majority of the said arbitrators, do decide and
iletM'iniiie, in the mode provided by the Tr(>aty that tlu> following con-
imrent Kegulations outside the jurisdictional limits of the respective
Govcrnnionts are necessiu'y, and that they should extend over tlie waters
liPivin-nftcr mentioned ; that is to SJiy : —

Article I. The Governments of the United States and of Great
5/iVfli« shall forbid their citizens and subjects respect i\ely to kill,
eapturo, or pursue at any time and in any manner whatever, the
aiiinmls coinmonly called fur-seals, within a zone of GO miles around
\h Pribilqff' Islands, inclusive of the territorial waters.

The miles mentioned in the preceding paragraph are geographical
uiilps, of GO to a degree of latitude.

Article 2. The two Governments shall forbid their citizens and sub-
jects respectively to kill, capture, or pursue, in any manner whatever,
iliiring the season extending each year from the 1st May to the 31st
July, l)oth inclusive, the fur-seals on the high sea in the part of the
Pacilie Ocean, inclusive of the Behring Sea, which is situated to the
noi'tli of the 35th degree of north latitude, and eastward of the 180th
ilegree of longitude from Greenwich till it strikes the water boundaiy
ilescribed in Article I. of the Treaty of 1867 between the United States
anil Russia, and following that line up to Behring Straits.

Article 3. During the period of time and in the waters in which the
fur-seal fishing is allowed, only sailing vessels shall be permitted to
rarry on or take part in fur-seal lishing operations. They will,
liowevcr, he at liberty to avail themselves of the use of such canoes
or undecked boats, propelled by paddles, oars, or sails, as are in common
use as fishing boats.

3 M 2

i Ji '

. nl'^Kj^u^', ■•

1 .

ii J

if •'
f ■■

i f ill

916

VICT. c. 2.— EXEMPTION.

[ism.

Article 4. Eiit'li snilinj^ vcssol anthorisod to fish for fiir-scnls must lie
provided with a si)ocial liconco is.siiod for that purpose hy its Government,
and shall !« required to carry a distinguishing flag to Ik; [jrcscrihed liv
its Government.

Article 5. The ninstors of the vessels engaged in fnr-senl fishing sluill
enter accurately in their oflRcial log-book the date and place of each fm-
seal fishing operation, and also the nundKT and sex of the seals cnptuivil
upon each day. These entries shall be commnnicate<l by each of the twn
Qovernuients to the other at the end of each fishing season.

Article G. The use of nets, fire-arms, and explosives shall be f()rl)iili||.|,
in the fur-seal fishing. This restriction shall not apply to shot "inis
when such fishing takes place outside of Behiing's Sea during the siti^m
when it may 1m^ lawfidly carriiid on.

Article 7. The two Governments shall take measures to control tin
fitne.ss of the men authorised to engage in fur-seal fishing, 'riusc men
shall have l»een proved fit to handle with sufficient skill tin' wcapdns U
niojins of which this fishing may l)e carried on.

Article 8. The Regulations contained in the preceding Articlos slmll
not apply to Indians dwelling on the coasts of the t^^'rritory of the United
States or of Great Britain and carrying on fur-seal fishing in canws m
inidecked boats not transported by or used in connection witii other
ve.s.sel.s, and propelled wholly by paddles, oars, or sjiils, and inannoil In
not more than five persons "ach in the way hitherto practised l)^ tiic
Indians, provided such Indians arc not in the employment of otlior per-
sons, and provided that, when so hunting in cjino<'s or inulecked lioiit*,
they shall not hunt fur-seals outside of territorial waters under contract
for the delivery of the skins to any piu-son.

This exemption shall not l)e construed to affect the nnuiicipal law nf
either country, nor .shall it extend to the waters of Behring Sea, or
the waters of the Ahnitian Passes.

Nothing herein contained is intended to intei-fere with the employment
of Indians as hunters or otherwise in connection with fur-sealing vessels
as heretofore.

Article 9. The concurrent regulations hereby determined with a view
to the protection and preservation of the fur-.seals, shall remain in foice
until they have been, in whole or in part, abolished or moditied by
common agreement 1)etween the Governments of the United States tiiid
of Great Britain.

The .said concurrent regulations shall be submitted every five years to
n new examination, so as to enable both interested Governments to con-
sider whether, in the light of past experience, tliere is occasion for imy
modification thereof.

SECOND SCHEDULE.

ENACTMENTS OF MERCHANT SHIPPING ACT

(17 & 18 Vict. c. 104.) APPLIED.

Section lOS.Q)
* * * * #

And in order that the above provision.s as to forfeitures may l)c carrieil
into effect, it shall be lawful for any commissioned officer on full \^}' ■"

(!) See sec. 76 (1) (c) 57 & 58 Vict. c. 60. And see note p. 911.

Sen (luriii<' tlic sen

ni\ see note p. 911.

1894.]

67 VICT. c. 2.— SECS. KEIT ALIVE.

J)17

the military or Jiiival HtTvico of Hit Majesty, or any BritiHli olliwr of
(.'iistoiiie, or any Briti.sh Consular otiiccr, to scizo and detain any sliip
ffjiicb hna, cither wholly or as to any share therein, In-eonie subjeet tu
lorfeitiue as aforesaid, and to briiif; her for adjudication Ijcfore the High
Court of Athniialty in England or Ireland, or any Court having
Admiralty jurisdiction in Her Majesty's dominions ; and such court may
lliereupon make such order in the ease as it may think fit, and may
award to tile officer bringing in tlic same for adjudication such portion
(if llie proceeds of the sale of any forfeited ship or share am it umy think
ridit.

Skctiox 104.(1)

Xo .such officer as nforesind shall 'm responsible, either civilly or "tl^''''' ""t
(Tiiiiiimllv, to any iierson whomsoever, in espcct of tlk- st'i/.ine or deten- 1 '"'"""y
lion or any ship that has been seized or 'letaincd by hini in pursuance ot „„ ,.i.a,soimble
tin' provisions herein contained, notwithstanding that such ship is not gioiimls,
liioiight in for adjudication, or, if so brought in, is <leclared not to lie
liiihK'to forfeiture, if it is shown to tlie .satisfaction of the judge or court
liefore whom any trial relating to such ship or such seizure or detention
is lichl tliiit there were reasonable grounds for such .seizun' or detention ;
liiit if no such grounds are sliown, sucli judge or court may award pay-
iiiPiit of costs and damages to any party aggrieved, and make such other
order in the premises as it thinks just.

PART X.O— LEGAL PROCEDURE.

Application.

Section 517.0

Jpplicaiiuil,

The Tenth Part of this Act shall in all cases where no [larticular Application

uoimtry is mentioned, apply to the whole of Her Majesty's doininioii.s. •'f i*"'' X. of

the Act.

Lrf/al
Piocedurc
( General),

Letfal Procedure {General).
Section 5iy.(*)

hi all jilaces within Her Majesty's dominions except Scotland, the i'luii^liment of

offeiice.s licrein-after mentioned shall be punished aiul penalties reco\ cred ""'""•^'^^i """^

miiianiier tollowmg; (that is to say,) penalties,.

(1.) Every offence by this Act declared to be a misdemeanor .shall be

punishable by line or impiisonment witli or without hard lalwnr,

and the court before which siieli oft'ence is tried may in England

make the stmie allowances and order payment of the same costs and

exiiensesasif such misdemeanor had been enumerated in the Act
„.i :.. ii ii _.. „c tj:.. I..*,. HT.. ;,...*.. v. n, .., »i..,

passed in the seventh year of His late Majesty King George the
Fourth, chapter sixty-four, or any other Act that may be passed for ' <^'

CO. 4. c. 04.

(') Sec. 76. (2). 57 & 58 Vict. c. GO.

(2) Part 13, ibid.

(3) .Sec. 1 VI, ibid.
(*) Sec. 680, ibid.

irr

1 I

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i 1

918

I I

h i

w I

57 VICT. 0. 2.— LKGAL IMI()('1;KI)1N(;s

[iNiJl,

JStipeiuliary
magistriite tu
have satuo
power as two
justices.

Offfiice while
deemed to
have been
committed.

Ilic like |iiir|)(isc, 1111(1 limy in iiiiy oilier jmit ol llcr MnjiMv^
tloiniiiittiis iiiakt' such iillowaiiccM anil order iinyiiieiit i.i' sw],
eosls iiiiil expenses (il' any) as are iiayaMe or iillnwulili' hi,,,,,
the (rial ol'iiny iiiisdeiiieaiior iiiulerany exislin^ A el oi Onliiiiini,,,
or as may lie payable or iillowalile iiniler iiiiy A<l ur lnw |i,i
the time hein^ in I'oice ihereiii;

(2.) Every oireiiee deehired liy this Aet to lie a iiiisdeiueaiKir simll mKh
he deemed to he an oll'enee hereliy made pimishahli' hv iiii|Jii«i,||.
iiieiit I'or any period not exeeediiifr six months, with or witluMit
hard hihoiir, or by ii penalty not exeee(lin;f one liiiii(liv(l|ii,iiiii|v,
and may be proseeiited aeeordiiifily in a siininmry iiiiiiiiiii'
instead ol' being prosecuted as a misiU'iiieanor :

(.'J.) Every offence hereby made punishable by iinprisoiiiiicnt f,,||||n
|M'riod not exeeediiifj; six montiis, willi or without liiiiii liiliiiin,
or by uny penalty not exceedinj; one hundred pouiuls, slmll in
linylatnl Mn\ /nland\H' proseciiled summarily Ix lore any twu
or more justices, as to JCiiijlinttl in the manner diicctcil liy tin
Act ol' the eleventh and tweil'th years ol' the ivi;rn u[ Hn
Majesty Queen Victoria, chapter forty -three, and ns to Irckml
in the uianner directed by the Act oi the roiirtetiitli mul
iifteeiith years of the reign of Her Majesty (^iiecu VK'torin,
chapter ninety-thrpe, or in sndi ollii-r miuiiier asiiiiiy hcdirwtcil
by any Aet or Acts that may be passed for like [iiii'iiohs;
And all provisions contuined in the wud Acts shall Im appliea.
ble to such prosecutions in the same manner as if the olffiiet's
in respect of which the siime are instituted were huivby statiii
to be offences in respect of which two or more jiistiii's have
power to convict summarily or to make ii sumiiiaiy onkr;

(4.) In all cases of summary convictions in Enylaiid, where \\w sum
adjudged to be paid exceeds live pounds, or the pciiud nl' im-
prisoument adjudged exceeds one month, any persou\vliotliink>
himself aggrieved by such conviction may ap[ieal to llii' ir\I
court of general or ijuarter sessions :

(."),) All oft'ences under this Act shall in any Uritisli posse^^iun lo
punishable in any court or by any justice of the jiwiul' di
magistrate in v hich or by whom olfences of a like I'lmiailn
are ordinarily punishable, or in such other mauiier, or liy mrIi
other courts, justices, or magistrates, as may from time lutiiue
be di't«'rmiued by any Act or Ordinance duly iiiiidi' in muIi
possession in such manner as Acts and Ordiiuuices in siiili
|iossession are reipiircd to lie made in oriler to lia\e tliu force
of Idw.

Section 519.(1)

Any stijicudiary magistrate shall have full power to do alone wliatevn'
two justices of the peace are by this Act authorized to do.

Section 520. (-)

For the purpose of giving jurisdiction under this Act, vwvs offimi'
shall be deemed to have been committed, and every cause of couiplaiul

(') See sec. 681, 67 & 58 Vict. c. 60.
(«) Sec. 684, ibid.

1H91.J

■)7 VICT, f. 2.-l'ENALTlE.S.

910

inlmvi- nriw'ii, cither in (lie pliici" in wliifli llir .siinic Hctimlly \vii> <'(iin-
luillcd or lU'osc, or in uuy [>Unjv in wliifh the oflViulLT or ^ii'ison t'oun>lttiui'il
flgiiiiist uiity 1k'.

Skction olil.(')

in all ciisfs wliPiX' any dintrii't witiiin which iiny court or justice ol' liie Jurisdiction
IKiice or other niH};i,stratt' has jurisdiction, citliur under this Act or under ''\'^f„^''j|'^

II nv

l)-ing utt tlio

ly oilier Act or at common law, for any purpose whatever, is situate on • ,
IlicmiHt of any sea, or ahutting on or projectinj^ into any Imy, channel,
lake, river, or other na\i};al)lc wat<'r, every such eouit, justice of the
|«i('(', or natgistrate .shall have jurisdiction over any ship or hoat heiuj;
on or lyinj; or |Mis.sin^ olf siicli coast, or heinj; in o.' near sue h liay,
(liiiniit'l, lake, I'iver, or navi;^al»le watei' as aforesaid, and over all persons
nil iiuiad such ship or lioator for the time heinj^ l»elon;;inj; thereto, in the
siiiii' manner as if such shi|), boat, or ixnsons wtie within the limits of
liio original jurisdiction of such court, justice, or niaj,'istratc.

Ski'Tion 522. (-)

Sirvice of any summons or otluT nniller in any le^al procet'din}^ undei'
lliiiAi't shall he good service, if nnule personally on the person 'o Ik;
HTvwl, or at his lust place of abo<U', or if nuule hy leaviufj such v.imnions
lorliini on hoard any ship to which he may helon^ with the person heinj^
or apijeiirhig to he in connnau<l oi' charge of such ship.

S( rvii'c tn lie
^;ii()(l it' nmdi!
pi'i'soimlly, or
on board !<liip.

li'viiiblu hy
distivss on
sliil'.

Si'.cnoN .")L*.').('')

In all cases whore any Cf>iirt, justice, or justices of the peace, or other f^mns (U'dert'd
iiinnistrate, has or ha\c ]>o\ver to make an older directing i)aynu'nt to be !" '."'. l'"'.''
iiiiiilcol' any seanuiii's wages, penalties, or othei- sums of money, then, if
I 111' party ^o directed to [)ay the same is the master or owner of a ship, and
llic sauie is not paid at the time and in manner prescribed in the order, the
loiirt, justice, or justices, or other magistrate, who made the order, may,
iiimidition to any other powers they or he may have for the pur|)ose of
louiiM'lliug payment, direct the amount remaining un[)aid to be levied In-
ilirfroHs or poinding and sale of the said .ship, her tackle, fiuniture, anil
.iiprel.

Section 524. (')

Any court, justice, or magistrate inijjosing any penalty under this Act, •M^p'^at'on of
for which no specific application is herein provided, may, if it or he 1'^"^""^'-
tbinks fit, direct the whole or any pait thereof to he ajjplied in couipcn-
sating any person for any wrong or (hunage which he may have sustained
by the act or default in respect of which suelr penalty is imposed, or to
If applied in or towards payment of the expenses of tlie procecilings ;
and, subject to such directions or specific application as aforesaid, all
penalties recovered in the United Kingdom shall be paid into the receipt
of Her Majesty's Exchequer in such manner as the Treasury may direct,
and shall be carried to and form part of the Consolidated Fund of the

(') Sue. 685, 67 & »58 Viet. c. GO.
(») Sec. 696 (h), ibid.
(3) Sec. 693, ibid.
(*) Sec. 699, ibid.

'{ :

i li

1 n

920

57 VICT. c. 2.— EVIDENCE.

[1894.

Unitt'd Kiiip;(loiii ; ami all iK-imltics iveoviTi'd in any ]Jrilisli posM'ssiim
shall 1)0 paid ovit into tlie public treasury of such possession, ami foim
part of the public revenue thereof.

f :

Section 525.C)

Limitation of The time for instituting summary proceedings under this Act sliiili lie
time ill sum- limited as follows; (that is to say,)

mary procced-
iiigs.

(1.) No conviction for any offence sliall be made under this Act iiuinv
summary proceeding instituted in the United Kingdom, uiilos
such proceeding is commenced within si.\ montiis iiftcr tin'
commission of the offence ; or, if both or either of the imrtics
to such jHocccding happen during such time to bo out of tliu
United Kingdom, unless tlic same is conmieneed witiiiii two
months after they both first hapiien to r.iii.e or to be I'.t one
time within the .same :

(2.) No conviction for any offence shall be uuule under this Act in am
proceeding instituted in any British possession, unless siuii
proceeding is commenced witliin six months after the com-
mission of the offence ; or if both or either of tlie parties tu
the proceeding happen during such time not to bt; within tlif
jurisdiction of any court capable of dealing with the ease, unless
the .same is eounnenced within two months after they both
tirst ha[)pen to arrive or to bo at one time within sucii juris
diction :

(.'3.) No order for the payment of money sliall be Miade under this Ait
in any sunmiary proceeding instituted in the United Kin;;(loiii,
tinlosssuch proceeding is eounnenced within six nioiitlisiirteitk'
cause of complaint ari.ses ; or, if both or either of the imitiis
happen during such time to be out of tlic United Kiiigiioiii,
unless the siime is commenced within six months after tliiv
both first happen to arrive or to be at one tiuii' within tlic
same :

(4.^ No order for the payment of money shall be made under this Act

in any summary proceeding instituted in any British possession,

unless such proceethng is commenced within six iiioiitlis iiild-

the cause of complaint arises; or, if both or either of tlie]iintii>

to the proceeding liappen during such time not to he witliiii

the jurisdiction of any court capable of dealing with the him,

unless the same is commenced within six mouths after tiny

Ijoth first happen to arrive or be at one time withiu such

jurisdiction.

And uo provision contained in any other Act or Acts, Onliminee ur

Ordinances for limiting the time withiu which summary proeeeiiiiig«

may be instituted shall affect any summary proceeding under this Act.

Section 526. (-)

Document Any document required by this Act to be executed in tlio pieseiKcdt

proved witiiout or to be attested by any witness or witnesses, may be pro\e(l hy ihc
calling attest*

ing witness. (<) Pec. 683, 67 & 68 Vict. c. CO.

(«) Sec. 694, ibid.

iilor this Act sliall lie

1894.]

57 VICT. c. 2.— DETAINING SHIP.

921

Power of judge
of court of
record or
Adniimlty to
urrt'st forci(i;n
ship tluit has
occasioned
damage.

evidence of any person who is able to boar witness to the reqnisite facts,
without calling the attesting witness or witnesses or any of them.

Section 527.(1)

Whenever any injury has, in any part of the world, been euuscd to
iinv property l)elongiii<; to Her Majesty or to any of Her Majesty's sub-
jects by any foreign ship, if at any time thereafter such ship is found
in any port or river of the United King<l()n» or within three miles of the
mat thereof, it shall be lawful for the judge of any court of record in
the United Kingdom, or for the judge of the High Court of Admiralty,
(ir in Scotland the Court of Session, or the sheriff of the county within
whose jurisdiction such ship may be, upon its being shown to him by any
[leison applying summarily that such injmy was probably caused by the
iiiiseoriduct or want of skill of tlu! master or mariners of such ship, to
issue an order directed to any ollieer of Customs or other oflicer named
In such judge, requiring him to detain such ship mitil such time as the
owner, uiasti'r, or consignee thereof has nuide satisfaction in respcst of
such injury or has given security to be approved by the judge, to abide
the event of any action, suit, or other leg.vl pr-oceeding that may be
instituted in respect of such inj\ny, and to pay all costs and damages
that may be awarded thereon ; and any officer of Customs or other
officer to whom such order is directed shall detain such ship accordingly.

Skctiox 528.(2)

Ii. any case where it appears that before any application can be made Power in oer
uniler the foregoing section such foreign ship will have dei)arted be- tain ea.ses to
yond the limits therein mentioned, it .shall bo lawful for any commis- "'"'j"" •''hip
sioned oflicer on full pay in the military or naval service of Her Majesty,
or any British oflicer of Customs or any Briti.sh consular ofHccr, to detain
such ship mitil such timt; as will allow such application to bo made and
the result thereof to bo communicated to him ; and no .such oflicer shall
lie liable lor any co.sts or danuigos in respect of such detention "uless
the siime is proved to have boon uuide without reasonable grounds.

Section 529.(3)

In any action, .^..iit, or other proceeding in relation to such injury, the Wlio to be
person ■ o giving security as aforosaitl .shall fie made defendant or defender defendant to
and shall be slated to be the owner of the shii) that has occasioned such
(lauiagc; and the jiroduction of the order of the judge made in relation
to such security shall be conclusive I'vidonco of the liability of such
ilet'eudant or defender to such action, suit, or other proctoding.

i ji

Ijeforc appli-
cation inadu to
judge.

!-iiit in such
cuseb.

Legal Procedure (Scotland).

Section 530. (*)

In Scotland e\i'vy offence which by this Act is described ns a felony or Offences
uiisdcuieuuor may be prosecuted by indictmout or crimimd letters at the punishable a

Legal
Procedure
(Scollanif).

(») Sec, 688 (1), 57 & oS Vict. e. GO.
(-) ,Sec, 688 (2), iliid.

misdenieunors

(')

, 608 (3), ibid.

(*) 8cc. 702 ibid.

< '■

I J!

i\i

llW!!:'t';*?*.^i*^<t»iiitfMrKJ*i!n^^*twfjtaBi;r-r«?<

iifl

922

57 ^^ICT. c. 2.— CITATION OF DEFT.

[mi

instance of Hit Majesty's Advocate before the High Court of Jiistiiimv
or by eriuiiuul libel at the instance of the procurator fiscal of tiio countv
before the sheriff, and shall be punishable with tine anrt with iinprisoii-
ment, with or without hard hiboiu' in default of payment, or wjtli
imprisonment, with or without hard labour, or with botli, as [\w t.ui,|.(
may think tit, or in the case of felony with penal servitude, win ic the
court is competent thereto; and such court may also, if it thinji iit
order i)ayment by the oft'ender of the costs and expenses of tlie pru.'
sccution.

Section 531.(')

Summary pro- In Scot land, all prosecutions, complaints, actions, or proceedings umlEr
cet'dings. iiijg ^^,j^ other than prosecutions for felonies or misdemeanors, niav lie

brought in a smnmary form before the sheriff of the county, or Wfoi,.
any two justices of the [)eaco of the county or biugh where tlic ciUM. of
snch prosecution or action arises, or where the offender or dcl\ii(ki' inav
be for tile time, and when of a criminal nature or for i)enalli('s, at ilie
instance of the procui-.itor tiscal of couit, or at the instance of aiiv |inriv
aggrieved, with concurrence of the procurator tiscal of court ; iiiid tlie
court may, if it think fit, order payment Ity the offench-r or dd'ciKlci' nt
the costs of the prosecution or action.

Section 532. (-)

I'orni ol com- I" Scotland all prosecutions, complaints, actions, or other procpwliiij^s

plaint. under this Act may be brought cither in n written or printed Foini,

or i)artly written and partly printed, find where such proeccMJintrs are
brought in a summary form it shall not be neccssjuy in the eoinpiaiiit lu
recite or set foi'th the clause or clauses of the Act on which siieli pio-
(•ceding is founded, but it shall be sullicient to specify or rel'i r to mrIi
clause or clauses, and to set forth shortly the cause of ciiinpiaint oi'
action, and the remedy sought ; and when such complaint oi' iietiuiii-
brought in whole or in i)art for the enforcement of a pecuniary delil
or demand, the complaint may contain a prayer for warrant to urns
upon the deitendenci'.

Mode of
requiring ap-
pearance of
defender and
■witnesses.

Section 533. (^)

In Scotland, on any complaint or other proceeding bicmj,'iit in a
summary form under this Act being preseutetl to the slierilf eleik or
clerk of the [Hjace, he shall gmnt warrant to cite the defenilei' to ap)n'm
personally before the said sheriff or justices of the peace on a day lixed,
and at the same time .shall appoint a copy of the same to be (lelivered le
him by a sheriff officer or constable, as the case may be, along witli tlic
citation ; and such deliverance shall also contain a warrant for citing
witnesses aiul havers to compear at the same time and place to j^ive
evidence and produce such writs as may be specitied in their citation;
and where such warrant has been prayed for in the complaint or other
proceeding, the deliverance of the sheiiff clerk or clerk of the peace
shall also contain warrant to arrest upon the dependence in commou

(') Sec. 703, 57 & oH Vict. c. CO.
(=) Sec. 704, ibid.
(») Sec. 705, ibid.

1891] 57 VICT. f. 1!.— ARREST OF DEFENDANT. 023

form : Piox ided always, that where the apprehension of any party, with
or without a warrant, is authorized hy this Act, such party may be
detained in custody until he can be brought at the earliest opportunity
before any two justices, or the sheriff who may have jurisdiction in the
place, to be dealt, with as this Act directs, and no citation or iuducia3
shall in such case be necessary.

Skcxion 53 LQ)

When it Ixjconies necessary to execute such arrestment on the depend- Backing arrest-
once against goods or effects of the defender within Scotland, but not meats,
locally situated within the jurisdiction of the sheriff or justices of the
|iracc by whom the warrant to airest has been granted, it shall he com-
pclont to carry the warrant into execution on its l)eing indorsed by the
sheriff clerk or clerk of the peace of the county or burgh respectively
within which such warrant comes to be executed.

Skction 533.

In all proceedings under this Act in Scotland the sherift* or justices CoiniicUinjr
of the jjeaee shall have the same power of cqmixilliug attendance of itt^'Klaiicc of
witnesses and havers as in cases falling under their ordinary jurisdiction. ^" "***"''*■

Section 536.

The whole procedure in cases brought in a suunnary form before the Provisions to
sheriff or justices of the peace in Scotlcaid shall be conducted viva voce, ^'^* ^°'^^-
without written pleadings, and wiihout taking down the evidence in
writinfi;, and no record shall be kept of the proceedings other than the
couiplniut, and the .sentence or decree pronounced thereon.

Skcxion 537.

It shall be in the power of the sheriff or justices of the peace iu Power to
Scotland to adjourn the proceedings from time to time to any day or adjourn,
(lays to be iixed by them, in the event of absence of witnesses or of any
other cause which shall appear to them to render such ailjourumcut

uecessiuy.

Section 538. O

In Scotland all .sentences and decrees to be pronounced by the sheriff Sentence to be

or justices of the peace upon such summary complaints shall be iu '" '""ting.

writing ; and where there is a decree for payment of any smn or sums Imprisoiimt nt

of nionev against a defender, such decree shall contain warrant for f" ¥'"*!''''"'
•''--- . . ' . ..... 1. ,. . , in default ot

arrestment, poinding, and imprisonment in default of payment, such
arrestment, poinding, or imprisonment to be carried into effect by sheriffs'
officers or constables, as the case may be, in the sjmie manner as in ca.ses
arising under the ordinary jurisdiction in the .sheriff or justices; Pro-

(') Sec 700, 57 & 58 Vie*, c. 00.
(») Sec. 707, ibid.

meiit.

fill

1 1

921

57 VICT, l: 2.— defect IN FORM.

[1S91.

vided iilwiijs, tliiit nothing lu;rein conhiiuod shall be tukt-n or constni,.,!
5 & 6 \V. i. ^^ leptrid or affect uu Act of the lit'th and sixth years of William the
e. 70. Fourth, intituled " An Act tor abolishing, in Scotland, imprisouniput

for civil debts of small amount."

.; i I i .

Sentence and
penaltifts in
default of
defender's
appearance.

Seotion 539.(1)

In all summary complaints and proceedings for recovery of any iK'iialtv
or sum of money in Scotland, if a defender who has been duiv citcil
shall not appear at the time and place required by the citation, lie ^\ya\\
be held as confessed, and sentence or decree shall be pronounced iigiijiM
him in terms of the comi)laint, with such costs and expenses as to ilu:
court shall seem fit : Provided always, that he shall be entitled to (ilitaiii
himself reponed against any such decree at any time before; the siiiic ln'
fully implemented, by lodging with the clerk of court a reponing noti',
and consigning in his hands the sum decerned for, and the costs wliich
hail been awarded by the court, and on the same day deliverinn; dr
transmitting through the i)ost to the pursuer or his agent a copy of siidi
reponing note ; and a certificate by the deik of court of sucli iioli^
having been lodged .shall operate as a sist of diligence till the cause sliall
have been reheiird and finally disposed of, which shall be on tlie next
sitting of the couit, or on any day to which the court shall tlnu
adjourn it.

Warrant to
apprehend in
default of
appearance.

Section 540.

In all summary complaints or other proceedings not brought for ilic
recovery of any penalty or sum of money in Scotland, if a (lirciidor,
being duly cited, shall fail to appear, the sheriff or justices may grant
warrant to apprehend and bring him before tlie court.

Backing

sentences or
decrees.

Section 541.(-)

In all east's where sentences oi' decrees of the sheriff or jusliccf. niiiiiic
to Ik; enforced within Scotland, but beyond the jurisdiction of llic sliwilf
or justices by whom such sentences or decrees have been iJionoiiiiird,
it .shall be competent to carry the same iiito execution upon the niuio
Ijeing endorsed by the sheriff clerk or clerk of the i)eace of the cuiint;
or burgh within which such execution is to take place.

Section 542. (')

Orders not to No order, decree, or sentence pronounced by any sheriff or jiifitico of

be quashed for the jjeace in Scotland \n\i\vv the authority of this Act shall be (iniisludoi'

want of form ; \ ucated for any misnomer, informality, or d«'fect of form ; and all onlti>,

and to 1)0 hnal. ^jytTees, and sentences .so pronounced shall l)e final and conclusive, ami

not subject to suspension, advocation, reduction, or to any form of ivvicw

or slay of execution, except on the giound of corruptioi or miilirc on

tue part of the sheriff or justices, in which casi* the suspension, iiiKota-

tlon, or reduction must he brought within fourteen days of the date ol

(') .Sc 708, 57 & ySVict. c. 60.
(») .Sc 706, ihul.
(•') vc. 703, ihid.

I I ' M I P fl|

mfj

\m.] 57 & 58 VICT. c. 30.— DETENTION OF SHIP.

925

the order, flecroo, or sontence cnmplnined of: Provided nlways, that no
stnyof execution .shall bo competent to the ofToctof preventing immediate
execution of sneli order, decree, or sentence.

Section 543. (i)

Such of the general provisions with respect to jurisdiction, procedure Gencrnl rules,
and ptMialties contained in this Act as are not inconsistent with the **" ^'"' "" »ri''i-
^necial rules herein-beforo laid down for the conduct of legal ijroceedings f ' '? .'"'"'''"'
and tnc recovery oi penalties in ScottniKl, shall, so tar as the same are and proeicilings
applicable, extend to such last-mentioned proceedings and penalties : in Scntlaml.
Provided always, that nothing in this Act contained shall be held in any
way to annul or restrict the common law of Scotland with regard to the
prosecution or puni.shment of offences at the instance or by the direction
of tlie Lord Advocate, or the rights of owners or creditors in regard to
onforeing a judicial .sjile of any ship and tackle, or to give to the High
Court of Admiralty of England any jurisdiction in respect of salvage in
Scotland which it ha.s not heretofore had or exercised.

ENACTMENT OP MERCHANT SHIPPING ACT, 1876
(39 & 40 Vict. c. 80.), APPLIED.

[Note. — The whole Act v/as repealed by Merchant Shipping Act, passetl
2') Aug. 1894, 57 & 58 Vict. e. (iO. ; but nothing in that Act was to
affect the Behring Sea Award Act : sec. 745 (./')].

Section 34.(2)

Where under the Merchant Shipping Acts, 1854 to 187G, or any of Enforiing'
them, a ship is authorized or ordered to l)e detained, any commissioned ^1*;^^"'"*" "
nflieer on full pay in the naval or militnry service of Her Majesty, or
any officer of the Board of Trade or Customs, or any British consular
oflieer may detain the .ship, and if the shij) after such detention or after
service on the master of any notice of or order for such detention proceeds
to sen before it is relea,sed by compt'tent authority, the master of the
ship, and also the owner, anil any i)erson who sends the ship to sea, if
siuli owner or person be party or privy to the offence, shall forfeit and
jMiy to Her Majesty a penalty not exceeding one hundred pounds.

Where n ship so proceeding to sea takes to sea when on board thereof
in the execution of his duty any officer authorized to det4iin the ship, or
any surveyor or officer of the Board of Trade or Customs, the owiicr and
master of the si.^) shall each be liable to pay all expenses of and
incidental to the officer or surveyor being so taken to sea, and also a
l)ennlty not exceeding one hundred pounds, or, if the offence is not
prosecuted in a summary manner, not exceeding ten pounds for every
(lay until the officer or surveyor returns, or until such time as would
enable him after leaving the ship to return to the i)ort from which lie is
taken, and such expenses may lie recovered in like manner as the penalty.

I{;

.ship.

(•) Sec. 710, 67 & 58 Vict. e. 60.
(») Sec. 692, ibid.

i fi

i':|i

926

57 & 58 VICT. 0. .19.— PRIZE COURTS.

[1894.

! t

Exception as to
property in
Briti.sh
possessions,

67 & 58 VICT. (1891) c. 30.
THE FINANCE ACT.

[Slst July 1891.]
British Possessions.

20.- — ('•) Wlicro the commissioners are satisfied that in a Rrjtisli
possession to which thi.s section applies, dnty is payable by rciison of a
death in i-espeet of any property situate in such possession, and passin"
on such death, they shall allow a sum equal to the amount of flmt duty
to b(! deducted from the estate duty payable in respect of that propeitv
on the same death.

(2.) Nothing in this Act .shall be held to create a charge for estate
duty on any property situate in a British possession, while so situate
or to authorize the commissioners to take any proceedings in a Brltisii
possession for the recovery of any estate duty.

(3.) Her Majesty the Queen may, by Order in Council, apply this
.section to any Briti.sh possession where IFer Majesty is .satisfied tJiat,
by the law of such jjos.session, either no duty is leviable in respect of
property situate in the Unitetl Kingdom when passing on death, or tiiat
the law of such possession as respects any duty so leviable is to the
like effect as the foregoing pro\ isions of this section.

(1.) Her Majesty in Council may revoke any such order, where it
api^ears that the law of the British possession has been so altered that it
would not authorize the making of an order under this section. Stc
L.R. Dig. 1891-5, 255.

67 & 68 VICT. (1894) c. 39.

An Act to make further provision for the estahlisli-
raent of Prize Courts, and for other purpo.scs con-
nected therewith. [17^// Aug. 1891]

BE it enacted by the Queen's most Excellent Majesty, by and with
the advice an<l consent of the Lords Spiritual and Temporal, anil
Commons, in this present Parliament assembled, and by the authority
of the same, as follows :

Short title. 1. This Act may be cited as the Prize Courts Act, 1894.

Constitution 2. — (!•) Any commission, wnrrnnt, or instructions from Her Majesty

of prize courts tlie Queen or the Admiralty for the purpose of commissioning or regulating
in British the procedure of a prize court at any place in a British pos.sessiou iniiy,

possessions. notwithstanding the existence of peace, be issued at any time, with a
direction that the court shall act only upon su(!h proclamation as herein-
after mentioned l)eing made in the possession.

(2.) Where any such commission, warrant, or instructions have been
issued, then, subject to instructions from Her Majesty, the Vice-
Admiral of such possession may, when satisfied by information from
a Secretary of State or otherwise, that war has broken out between
Her Majesty and any foreign State, proclaim that war has so i)ioken
out, and thereupon the said commission, warrant, and instructions shall
take effect as if the same had been issued after the breaking out of sneh
war and such foreign State were named therein.

the estahlisli-

1894] i" & 58 VICT. c. GO.— MERCHANT .SHIPPING. 927

(3,) The said commission niid wnrrnnt may niithoi-izp eithor a Vicp-
Admirnlty Court or a Colonial Court of Admiralty, within the uipftning
of the Colonial Courts of Admiralty Act, 1H90, to act as n prize court,
and may establish a Vice-Admiralty Court for that purpo.se.

(4.) Any such commission, warrant, or instructions may be revoked or
altered from time to time.

(5.) A court duly authorized to act as a prize court during any war
shall after the conclusion of the war continue so to act in relation to, and
finnllv dispose of, all matters and things which arose during tiie war,
incliKling all penalties and forfeitures incurred during the war.

3, — (1.) Her Majesty the Queen in Council may make rules of court
for regulating, subject to the provisions of the Naval Prize Act, 18G4,
,111(1 this Act, the i)roce(hue and practice of prize coiu'ts within the
moaning of that Act, and the duties and conduct of the officers thereof,
ami of the practitioners therein, and for regulating the fees to l)e taken
bv the officers of the courts, and the costs, charges, and expenses to be
allowed to the practitioners therein.

(2.) Every rule so made shall, whenever made, take effect at the
time therein mentioned, and shall be laid liefore lioth Houses of Parlia-
ment, and shall be kept cxhil)itcd in a couspic :ous [dace in each court
to which it I'ehites.

(3.) This section shall be substituted for section thirteen of the Naval
Prize Act, 1 864, whicii section is hereby repealed.

(t.) If any Colonial Court of Admiralty within the meaning of the
Colonial Courts of Admiralty Act, 1890, is authorized umler this Act or
otherwise to act as a prize; court, all fees arising in respect of prize
liusiness transacted in the court shall be fixed, collected, and applied
in like manner as the fees arising in respect of the Admiralty business of
ilic court under the saiil Act.

4. Her Majesty the Queen in Council may make rules of court
for regulating the procedure and practice, including fees and costs, in a
Vice-Admiralty Court, whether under this Act or otherwi.se.

5. Section twenty-five of the Government of India Act, 1800, is
lieiet)y rei)ealed.

53 & 54 Vict.
c. 27.

Ruli-s of
enurt fur
and fees in
prize courts.
27 & 28 Vict,
c. 25.

27 & 28 Vict.
c. 25.

5.1 &- 54 Vict,
c. 27.

As to Vice-

Adinirnlty

Courts.

Repeal of
39 & 40
Geo. 3. c. 79.
8. 25.

57 & 58 VICT. (1891) c. GO.

[Summarised chiefly with a view to colonial, hut also in
respect to general application.]

An Act to consolidate Enactments relating to Merchant
Shipping.^ [2oth Aug. 189^!.]

PART 1.— This answers to Part 2 of 17 & 18 Vict. c. 104.

By Sect. 91 Part 1 is extended to the whole of Her Majesty's

tloiuiuions.

Eegistiiy.

1. A ship shall not be deemed to b(> a British ship tinless owned Qualifteation
wholly by persons of the following description : for owning

(«.) Natural-born British subjects : ^'■"'^'•» "•"P'*-

' [Proposed by Bill in 1896 to be amended by applying to all contracts made for
the carriage of animals by sea, sect. 7 of the Railway Canal TrafBc Regulation
Act 1854, 17 & 18 Vict. c. 81. " .

n^nm

nil

! t

|:|

• ■ ' B !: ' I " ■'

!| '; I

: ■ '•

ii 1

!! rl

\ ■ I

i:Hll

928

57 & o8 VICT. p. 60.— REGISTRATION. [i89i.

»•

(6.) Persons naturnlizou by or in pnrsuancn of nn Act of Pniliamcnt
of tho United Kinj^doni, or hy or in pnrsunnce of an Act or
ordinance of the proper legislative antliority in a Briti.sli pos-
session :
(c.) Persons made denizens by letters of denization ; and
(</.) Bodies corporate estnblished under and subject to t\\o laws of
some part of Her Majesty's dominions, and haviiii' tlu>ir
principal place of business in those dominions :
Provided that any person who either —
(i) being a natural-born British subject has taken the ofttli of
allegiance to a foreign sovereign or state or has othorwisi'
become a citizen or subject of a foreign state ; or
(ii) has been naturalized or nimle a denizen as aforesaid ;
shall not be (pialified to be owner of a British ship unless, after tnklii"
the said oath, or becoming a citizen or subject of a foreign state, or on
or after being naturalized or made denizen as aforesaid, he has takon tlic
oath of allegiance to Her Majesty the Queen, and is during tlio tinio lio
is owner of the ship either resident in Her Majesty's dominions, or partner
in a firm actually carrying on business in Her Majesty's dominions.

2, 3. Every Briti.sh shi[) nuist be registered (except exonipted),
otherwise not recognised as a British ship, and nuiy be detained until
certificate of registration is produced. The exempted ships were .ships of
15 tons employed solely on rivers or coasc of the United Kingdom or
on the rivers or coasts of some British possession within wliidi tlic
managing owners are resident, and (2) ships not exceeding 30 tons and not
having a whole deck, and employe(l solely in fishing and trading coastwist'
on the shores of Newfoundland or adjacent parts, or in the Gulf of Si.
Lawrence or adjacent coasts of Canada. 17 & IH Vict. c. 104, s. 19.

4. The procedui-e for regi.stration is given. This Sec. provi<ies that at
any port in the United Kingdom or Isle of Man the registrars of siiips
shall be the chief officer of cu.stoms. In the Channel Lslands tlic .sjunc,
together with the Governor : in Malta and Gibraltar the Governor : at
Calcutta, Madras, Bombay, the port officer, (r) " At any other port in
any British possession approved by the Governor of the possession for f ho
registry of ships, the chief officer of customs, or if there is no sncli oilicer
there resident, the Governor of the possession in which tlie port i>
situate, or any officer appointed for the purpose by the Governor." (G.) At
a port of registry establi.>-hed by Order in Council persons of tho descrip-
tion declared by the order.

(2.) " Notwithstanding anything in this section Her Majesty may by
Order in Council declare with respect to any British possession named in
the Order, not being the Channel Islands or the Isle of Mnn, tliedeserip-
tion of persons who are to be registrars of British .ships in tinit possession."
A registrar is not to be liable for any damages unless he is in wilful default.

5. A register book is to be kept. The ship shall be divided into
64 shares : and not more than 61 individuals shall be entitled to be regis-
tered except where the Act provides for joint owners or owners h\
transmission : that this rule was not to affect the beneficial title of any
number of persons or of any company claiming through any registered or
joint owner. No one can lie registered as owner of a fractional part of
a .share, but any number of persons up to five may lie registered as joint
owners of a ship or of any share or shares therein. Joint owners arc
to be considered as constituting one iierson only as regards registration,
and cannot dispose in severalty of any interest in a ship, or in any share
therein. A corporation may be registered as owner in its;corponite name.

1894.] «7 & 58 VIOT. c. 60.— CERT. OF REGISTER.

929

6. Every British ship shall before registry, be surveyed by a surveyor
of ship.s and her tonnage iiscertained. For above, see 17 <fc 18 Vict.
c. 104. .ss. 30, 32, 37, 36.

7. Every British ship shall be marked with her name on her bows
and the name of her port of registry on her stern ; her oflBeial number
and tonnage on her main l)eam, and her draught of water on each side
of her stem and sternpost. 3(5 & 37 Viet. c. 85. s. 3.

8. Application for registry of a .^hip is to be made by the person
requiring to lie registered as owner, or in the case of several individuals
or a corporation by their or its agent. 17 & IH Viet. e. 104. s. 35.

9. A declaration of ownership is to be made by the person, or in the
ttse of a corporation its agents, giving particulars of his ((ualification or
the corporation's constitution and business : the time and place wht>nand
where the ship was built, &e. : the master's name : the niunlKn of .-hares
hililbv him or tiie corporation : and a declarutiou that to the best of his
belief no unqualified person or body of persons is entitled as owner to
any legal or beneficial right therein. 17 & 18 Vict. c. 104. s. 38.

10. On the first registry, the following evidence is to be produced : — If
a British-built ship, a builder's certificate containing a true account
of the proper denomination and tonnage as estimated by him, and
where and on whose account .she was built; ;.nd if there has been any
sale, the bill of sale. In the case of a foreign-built shij), the above
[larticulars so far as known. If a condemned ship, an ollicial copy of the
condemnation. And if a person in granting a builder's certificate wilfully
nmkesa false statement he is liable to a penalty up to 100/. 17 & 18 Vict.
c. 104. ss. 10, -41.

11. All the above evidence is to be entered in the register book.
17 & 18 Vict. c. 104. s. 42.

12. On the registry of a ship, the registrar is to retain the sur-
veyor's certificate, the builder's certificate, any bill of sale previously
umde, the copv of the condemnation (if any), and all declarations of
owuership. 17 & 18 Vict. c. 104. s. (>].

13. The port at which a British ship is registered for the time being
shall be deemed her port of registry and to which she belongs.

14. On completion of registration the registrar is to giant a certificate
of rejiistry, comprising the entries on the register and the name of the

master.

15. The certificate of register is to be used only for the lawful
navigation of the ship, and is not to be sid)ject to detention by reason of
any title, lien, charge, or interest whate\ei'. (2) If any person, whether
interested in the ship or not, refu.ies to deliver up the certificate to the
person entitled to its custody for the lawfid navigation of the ship or to
any registrar, officer of customs, or oilier person entitled by law to require
such delivery, any justice or any co\ut capable of taknig cognizance of
the matter may summon such" person, and unless he .shows there was
reasonable cause for such refusal the offender shall be liable to a fine not
exceeding 100/. (3) Or if the person so refusing absconds or persists in
his refnsal to give up the certificate, the justice or the court shall certify
the fact, and proceedings may then be tnken ns, for a certificate mislaid,
lost, or destroyed, 17 & 18 Vict. c. 104. ss. 50, 51.

S 2340.

'i i

; i

' ft .4

i (

930 57 & 68 VICT. c. 60.— TRANS. OF PROPERTY.

[IHS)|.

16. A penalty is iinposeil on wrongful use of the eertificiitc. 1" ,t 1m
Vict. V. 104. s. 52.

17, 18. Powers nre given with the approvtvl of tlie Commis^iiimi j
of Customs to the registrar of the ship's port to grant a new iciiilicai,.
on delivery \ip of the old in lieu of an oi'igiual certifieiite losl or (Ii'sIicjmiI.
If the ship is not at her port of registry, tliiiu the master or smiic piismi
having knowlwlge of th(^ faets, is to makeadeelaralioii, and tlu'iij^isiuv
or eonsidar oilieer at that port is to grant a provisional e('rtiliriil<', whidi
is to 1h! within 10 days after the ariival of the ship at her port, in tin
United Kingdom, if the port of registry is there, or in a British |)()ss(s>i(iii,
or Order in Coiuieil port of registry, delivered n|) to the regisinip dl' Wv
port of registry, and a new certi eate ohtained. 17&1H Vict. c. lOl.ss. I7
48.

19, 20. An endorsement is to he made on th(> rcgislrv nf tin'
last a|)pointetl master or any change of ownership. 17 & IH Vict, c Kil,
•ss. 45, IG.

21. Notice that a ship is lost or when .she ceases to h > Ihitifili-dwnci!
is to he given at her port of registry, and her certificate ddivcivd iij); if
such event happens away from her port, then within 10 diivs of ilic
master's arrival in port he is to deliver the certificate to tlui rcj^istnir, or
if none there, then to I'le British consular otlicer. And these pcisons
are to forward it to the registrar of the ship's port. 17 it l.s Viil,
c. 101. s. 53.

22. A provisional certificate for a .ship on her heconiing British-
owned nuiy he granted hy British consular oHiccr if the port is not wiiliiii
Her Majesty's dominions nor a port of registry hy Order in (Jdiiiicil.
17 & 18 Vict. c. 104. s. 54.

23. Commissioners of Customs or Governor of a Britisli pnsscssiini
may for special reasons grant a temporary i)ass from one port to iiiidtluT
without the ship being previously registered. 17 & 18 Vict. c. 10 l.s. !)s,

24-26. Transfer of ship or shares shall be by bill of sale contiiiniiif,'
a description of the ship; and transferee shall make a declaration of iiis
qualification to own a British ship ; and every bill of sale shall bo rt'gistiivd
in the register book of the ship's port. 17 & 18 Vict. c. 104. ss. bb, 50.
67.

27 deals with transmission of property in ship on death, liniik-
ruptcy, marriage, of registered owner. 17 & 18 Vict. c. 10 1, ss. oH, 5il,(!0,

28. Where the property or a share in a British ship is transferreil liv
such cause as in s. 27 to a person not qualified as owner. If the ship is
registered in England the High Court, in Scotland the Court of Sossimi,
and in any British possession the principal civil jurisdiction, niiiy, oiitho
application of the unqualified person, order a sale and direct that llic
proceeds be paid to the person entitled. Application for sale must lie
made within four weeks after the event of transmission ; if not made, tlic
ship or share may be forfeited. 17 & 18 Vict. c. 104. ss. 62, 04.

29. Where the court orders the sale of the ship or share the order of
court shall contain a declaration vesting in some person named by the
court the right to transfer that ship or share. 17 & 18 Vict. c. 104.
s. 63.

30. The court having the principal jurisdiction in the United
Kingdom or any British possession may prohibit transfer. 17 & 18 Vict,
c. 104. s. 65. " .

lOPERTY. [ifii,i
> (vrtiiiculo. 17 it Is

5 18 Vict.c. lUl.ss, 17.

1804.] 57 h 5H VICT. c. 60.— ALTERATIONS IN SHIP. 931

31, 32. A mortgage of n ship or slinro may be made security for
II loan, mill is to be in a eortaiu form and rt'gi.stered. A note in the
ic^jistor, wiiort' the mortgage is di.scharged, is also to bo made. 17 & 18
Vid. c. 104. ss. (Hi, 07, OH.

33. If more tlian one, tlion priority of registration of mortgages
to pivvnii. 17 & IH Viet. e. 104. s. GO.

34, 35. Mortgagee is not to be treated as owner ; but to hav«' power
of siiie. 17 & 18 Viet. c. 104. ss. 70, 71.

36, A mortgage is not to be affected by the bankruptcy of the mort-
gagor niter the date of the record of the mortgage. 17 & 18 Vict.

c, lot. s. 72.

37, 38. A registered mortgage in a ship or share can be transferred,
and I lie transfer is to be recorded in the register book, and the mortgage
luiiv be transmitted by marriage, death, or bankruptcy, &c. 17 & 18
Vict. c. 104. ss. 73, 74, 75.

39. Powers of mortgage and sale at any phice out of the coimtry in
wiiicli tlie port of register of the ship is, may be conferred by certilicate
fjraiittid by the registrar. 17 & 18 Vict c. 104. s. 70.

40, 41. Before u certificate of mortgage is granted the applicant must
stnti'totlie registrar the name of the person to txercise the powers, and
the aniomit of the cliarge to be created, &e., tlie place and limit of time ;
liiit (tl) a certilicate of mortgage shall not be grunted " so as to authorise
liny mortgage or sale to be nuuie — If the port of registry of the ship is
stimtc'il in the United Kingdom, at any place within the United Kingdom,
or, if the port of registry is situate within a British possession, at any
pliKc within the same British possession : " or at an Order^iu Council port,
lU,, "Hv any person not named in the certificate." 17 & 18 Vict.
!■. 104. !<s. 77, 78.

42, 43, 44, 45, 46 referred to contents of certificates of mort-
j;iif;i' and t^ale : and rules to be observed therewith : renewal of the same
wiicii lost ; and re\ ocation thereof. 17 & 18 Vict. c. 104. ss. 79, 80,

HI, 82, 83.

47 provided rules as to name of ship; amongst others, that a
(liange should not be made in the name of a ship without the permission
of the ]5oard of Trade : and that where a foreign ship becomes a British
.<iii|), she was not (o be registered except by the name she bore unleas the
lionnl of 'J'rade gave leave. 34 <fc 35 Vict. c. 110. s. 0.

48, 49. When a registered ship is so altered as not to correspond
with the i)articulars as relating to tonnage, Ac, in the register book, then
il the alteration is made at any port, the registrar of that port, or if none
tliore, the registrar at the first port at which the ship arrives after the
nlttration may on application and production of a certificate from the
proper surveyor caiise the alteration to be registered. Then followed
legiiiatious to be observed. 17 & 18 Vict. c. 104. s. 84.

50. The registrar, not being the registrar of the ship's port of registry,
may on au apiilieation as to an alteration in a ship, either grant a provisional
cti'tifieate, or endorse the particulars on the existing certificate. And every
provisional certificate, &c., shall, within 10 days after arrival at her port of
<liscliaige, if in the United Kingdom, if there registered, or if registered in
a Britisli possession at her port of discharge there, and the same as to
Order in Council port, be delivered up to the registrar, and that registrar

3n 2

■ ' ' i

932 67 A 88 VICT. c. no.— INSPECTION OP BOOKS. [1804

1,1

hIihH cause the ship to be registered unew, mul the ref^istrur uniiitin); a
provisioiml cfitifit'iitc whull .send piirtieiilms to (he ivgiHtrur of tlic sliip's
port. 17 & IW Vict. c. 104. puit of sh. Ho, HO.

51, 52. Tliere iimv Ik" rej^istry anew on change of owncr.>ilii|), an.lun^
iin.siitif'ficd mortgiigc or existing ccrtificutes of sale or mortgage ciitcml
thereon shiill l»e entered on the new register. 17 «i 18 Vict, c, lOi. m.hh.

53. Registry of any ship may Ihj transferred from one |)()rt lo aiiotiicr,
and the registrar of tiie ol<l port is to .send to the registiar (it tlic
intended port everv particular of the ship. 17 it 18 Viet. c. lol. >s 8il.
90, 01.

54. When a ship has ceased to be a British ship she is noi in In.
re-registered until surveyed. 'M\ & H7 Vict. c. 85. s. fi,

55 dealt with incapacitated persons, such as infants
and gavt' powei' lo the guardian i>r eonunittee of such
persons to nuike declarations, &c. 17 & 18 V^ict. c. 104. s.

anil liniiitiiN,
iucii[iarit!ilcil

56> 57 '••■'dt with ..usts and equitable
4;{ ; 25 & 20 Vict. c. Oil. s. 3.

rights.

17 & 18 Vict. c. 101,

58 made the beneficial owners lus well as the registered owiitMcitlur
jointly or separately liable. 17 & 18 Vict. c. 104. s. 101).

59. Ship's managing owner, or if none the .ship's hus!)au(l, e.g.
uumagei', is to be registered. 39 & 40 Vict. c. 80. s. 315.

60. Power is given to the registrar, with the approval of the Com-
missioners of Customs, to dispense with dodaiations. 17 & 18 Viit.
c. 104. s. 97.

61. Dechuations were to be made before a registrar of Hiiiisli
ships, or a justice of the peace, or a commissioner for oiitiis, m ii
British consular officer, and may be made on the part of a curpoiatiuii
by the secretary or other officer.

62. Fees taken imder this part of the .Act in the I'nitod Kinj;-
dom were to be towards the expense of carrying into effect this part of tiw
Act. Fees taken in a British possession are to be dispo.sed of as the E.\wu-
tivo Government there direct, and if at an Order in Council poit as tliat
order directs. 17 & 18 Vict. c. 104. s. 95.

63-65 dealt with returns to be made by registrars in the United
Kingdom. Register books may be inspected for a fee of one siiilliiif;,or
less. Register books were to be admissible as evidence The forms
in the 2nd part of the 1st Schedule were to be used. The Coininiv
sioners of Customs, with the consent of the Board of Trade, may giw
instructions to their officers as to making entries, attestation of powiis
of attorney, &c. 17 & 18 Vict. c. 104. '% 92, 94. 35 & 30 Vict c 7.'!.

8.4.

66, 67. Forgery of the register book, &c., declaration, bill of salu,
instrument of mortgage, certificate of mortgage, &c., was niude t'cloiiv i
and making a false statement concerning the title to a sliip, ic,
knowing it to be false, a misdemeanor. 17 & 18 Vict. c. 104. ss. 101,
103 (4).

68-73 provides that an officer of cutitoms shall not grant a clearunci'
until the master declares the nation to which the ship belongs. Ilieii
there are penalties for assuming the character of a British ship, or
concealing the British character or assumption of a foieign clianicter,

iOOKS, [1894.

slu! is not (() III'

& 18 Viet, c. lOl,

1894.]

67 A 68 VICT. o. 00,— TONNAGE.

933

Tlmt tilt' i'«l onsign, witlioiit any dt'faceinont, is the propor imtionnl
colours lor all ships hcloiigiiig to any British siil)jpc't, except in the case
of Hi r Majesty'H shijis. If any eolours usually worn hy Her Majesty's
ships or pendant are hoisted on hoard any Hriti.sh .ship without authority,
a liuf up to 500/. may he incurred, and the colours may be seized, the fine
lieiiig recoverable in the High Court, in the Court of Sc^^sion, Scotland,
or ia any Colonial Court of Admiralty or Vice- Admiralty within Her
Mnjcsty's dominions : but if prosecute<l oummarily thc^ fine i.s not to be
liiphcr than 100/. IV & 18 Vict. c. 104. ss, 102^ 103, 104, 105, 106;
5:J & 53 Vict. c. 73. N. 13.

74. A ship Ix'longing to a British subject is to hoist the proper
nntioiial colours on a signal from one of Her Majesty's ships : on entering
or leaving any foreign port ; or if 50 tons gross burden, on leaving any
British port, subject to a fine of 100/. if not done. 52 & 53 Vict. c. 73.

8.2.

75. Ilights of Admiralty saved.

76. Where subject to forfeiture a ship may be seized and det^iined by
any conunissioned oflicer on full pay in the military or naval forces of
Her Majesty, by an oiHcer of customs in Her Majesty'.s dominions, or
any British consular officer, and he or they shall not be liable, civilly or
(•riniinally, for siieh detention if the court hohls there were reasonable
{(rounds for such .seizure, &c. 17 & 18 Vict. c. 104. s. 103. See 39 & 40
Vict, c, 80. s. 34.

77. Bales were lai<l down for ascertaining the tonnage of every ship
to 1)0 registered. 17 & 18 Vict c. 104, s. 21 ; 52 & 53 Vict, c, 43. s. 1.

78. Allowance for space occupied by propelling power, 17 & 18
Vict, c, 104, s. 23 ; 52 & 53 Vict, c. 43, s. 2.

79. Deductions for ascertaining tonnage, master's accommodation and
crew ; space occupied by the helm, &c. ; chart room, and space occujtied
by donkey engine ; and if a sailing vessel, the sail room. These spaces
nuist be certified as reasonable in extent l)y surveyor. 52 & 53 Vict.

c. 43. 8. 3.

80. Provisions as to deductions in case of certain screw steamers.
52 & 5;{ Vict, c, 43. s. 4.

81. Measurement of ships with double bottoms for water ballast,
the upper side to be taken as the floor, 52 & 53 Vict. c. 43. s. 5.

82. Tonnage once ascertained to be the tonnage of ship, unless form
or capacity of ship altered or tonnage erroneously computed. 17 & 18
Vict, c, 104. s. 26.

83. J^^ees for measurement to be paid into mercantile mprine fund.
36 & 37 Vict c. 85. s. 30.

84. Whenever ships of foreign countries adopt tonnage regulations
of this Act, Her Majesty by Order in Council may order that ships of
that country shall be deemed of the tonnage denoted in their certificates.
52 & 53 Vict, c. 43. s. 6.

85. Space occupied by deck cargo in a British or foreign, other than
a home trade ship, to be added to ship's registered tonnage, and ascertained
by an officer of the E-T.rd of Trade or of Customs; and tonnage dues
paid for that space occupied by goods. 39 & 40 Vict. c. 80. s. 23.

86. Surveyors and regulations for measurement for ships.

87. Levy of tonnage rates under Local Acts on the registered tonnage.
26 & 26 Vict. c. 63. s. 4.

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934

57 * 58 VICT. c. 60.— COL. EEGISTRY. [isni.

Powftrs of
Governors in
colonies.

Terminable
certificates of
regisitry for
small ships in
colonies.

88. A foreign port where Her Majesty exercise.s jurisdiction uiidei'
63 & 54 Vict. c. 37. may be declared a port of registry. 36 & .'57 Vict.
c. 85. 8. 29.

Registry in Colonies.

89. In every Briti.sh possession the Governor of the possession shall
occupy the place of the Coinmissionors of t'ustoms with rfgard to tlu>
performance of anything relating to the registry of a slii[) or ot' anv
interest in a ship registered in that possession, and shall have power to
approve a port within the possession for the registry of ships. 17 ift ifj
Vict. c. 104. 8.31.

90. — (1-) The Governor of ii British posses.sion may, witli the
approval of a Secretary of State, make regulations providing that, on an
application for the registry under this Act in that possession of any sliip
which does not exceed sixty tons burden, the registrar may grant, in lien
of a certificate of registry as required by this Act, a certificate of icifjstrv
to be terminable at the end of six months or any longer jieriod fioni the
graniing thereof, and all certificates of registry granted under any such
regulations shall be in such form and have effect subject to such cdndi-
tions as the regulations provide.

(2) Any ship to which a certificate is granted under any such r('<,nilii-
tions .shall, while that certificaie is in force, and in relation to all tliini^s
done or omitted dining that period, be deemed to be a registered J5riiisli
['lip. 31 & 32 Vict. c. 129. S.S. 1, 2.

91. This part of the Act shall apply to the whole of Her Majesty's
dominions, and to all places where Her Majesty has jurisdiction.

Part 2 (sees. 92 to 266) of the Act answers to Part 3 of 17 & 18
Vict, c 104., and by sec. 264 may be made applicable to a British pus-
session by colonial legislative enactment.

92. Every British foreign-going and home trade passenger siiip when
going to sea, and every foreign steanishii) carrying passengers between
places in the United Kingdom, shall be provided with ollicers duly
certified as competent. Then it gives a list of the.se. See 17 & IH Viet.
c. 104. s. 136.

93. Grades of certificates of competency .shall be granted to the
master, first mate, second mate, and only mate of a foreign-goinj^ ship;
master and mate of a home-trade pas.senger ship. First-class engineer,
second-class engineer. The certificate for foreign-going ship to be
deemed the higher grade.

94. 95. Examinations for certificates to be held by local marine
boards, &c. 17 & 18 Vict, c, 104. s. 131.

96. For the purpose of obtaining engineers' certificates of com-
petency, examinations may be held as the Board of Trade directs.

97 directed fees to be paid on examinations. 25 & 26 Vict. c. 63.
s. 6.

98. Grant of certificates on passing examinations, and giving evidcuce
of sobriety, experience, ability, and general good conduct.

99. Certificates of service to be given to Her ISIajesty's naval officers,
lieutenants, &c., and officers of Indian Marine without examination, also
to engineers of tht Royal Navy or Indian Marine.

iiDiy, with till'

enger slii]) wlioii

)y local marine

1894] 57 & 58 Vict. c. 60.— CteilTS. OF COMPETENCY. 936

100, 101. Certificates of competency to be made in duplicate, and a
RH'oi'il liept of them, and if a master, mate, or engineer proves lie has
lust ills certificate, a coi^y may be supplied to him. 17 & 18 Vict. c. 104.
ss. 138, 139.

102. Where the legislature of any British possession provides for the Coloninl cer-
examiiiiifion of and grant of certificates of competency to persons tificates of
iiitomlinf;- to act as masters, mates, or engineers on bi ard ships, and the competency.
Boaid of Trade re[)ort to Her Majesty that they are satisfied that the
ixaiiiiniUions are so conducted as to be ecpially etticientwith theexamina-

liniis for the same purjwse in the United Kingdom under this Act, and
timt till' certificates are granted on such principles as to show the Yike
i|iialific'fitions and competency as those granted under this Act, and are
lialilc to be forfeited for the like reasons and in the like manner, Her
Majesty may 1\v Order in Council —

(i) declare that the said certificates shall be of the same force as if

they had been granted under this Act : and
(ii) declare that all or any of the provisions of this Act, which relate
to certificates of competency granted under this Act, shall
apply to the certificates referred to in the Order : and
(iii) in nose such conditions and make such regulations with resjiect
to the certificates, and to the use, issue, delivery, cancellation,
and suspension thereof, as Her Majesty may think fit, and
impose fines not exceeding fifty pounds for the breach of
those conditions and regulations. 32 Vict. c. 11. s. 8.

103. 1 he master of a foreign-going ship on signing the agieeraent
wiiii the crew before a superintendent shall produce the certificates of com-
licleiicy, also in the case of a running agreement. And such certificates
as the Act directs to be held shall be produced to some superintendent
wiiliiii 21 days after 30 June and 31 December in every year, by the
iiiastt'i' or owner of every home-trade pas.senger ship over 80 tons burden.
And the superintendent's certificate that this has been done is, on the
ship inoceeding to sea, to be shown to the ofiicer of customs.

104. Forgery, &c., of certificate of competency.

105. Assistance is to be given by superintendents as to persons
liisiiiiig to apprentice boys to, or requiring apprentices for, the sea
senite. 17 & 18 Vict. c. 104. s. 141.

106 dealt with apprenticeship of paupers in Great Britain and
hdand. 17 & 18 Vict. e. 104. s. 144.

107. Attestation of pauper apprenticeship is to be before two justices
of tlic peace, who shall ascertain the consent of the boy and that he is

over 12.

108. ^- nprenticeship to the sea service to be in duplicate, and steps be
takeij to record it within seven ilays of its execution.

109. The master of a foreign-going shiii shall, before carrying an
apinvnticc to sea, proiluce the boy and indenture before the .superinten-
ileiit, and the apprentice's name is to be entered on the agreement with the
crew 17 & 18 Vict. c. 104. s. 145.

110. The Board of Trade may grant licences to persons to supply
seanip- and apprentices. 17 &, 18 Vict. c. 104. s. 146.

HI deplt with penalty for engaging seamen without licence. 17 & 18
Vict. c. 104. s. 147.

:|! !.

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Engagement of
senmen in
colonial and
foreign ports

936 57 & 58 VICT. c. 60.— ENGAGEMENT OF SEAMEN. [1894

112. Penalty for receiving remuneration other than fees under the Ad
from seaman for finding hiui employment. 17 & 18 Vict. c. 104. s. 14H

113. The master of every ship, except ships of less than 80 tons,
shall make an agreement with everv seaman carried to sea as one of bis
crew. 17 & 18 Vict. c. 101. ss. 149, 157.

114 dealt with the form, period, and conditions of agreements with
the crew. 36 & 37 Vict. c. 85. s. 7 ; 17 & 18 Vict c. 104. s. 149.

115, 116. Special provision.s in case of foreign-going ship and honip-
trade ships, as to agreements with crew, e.ff., as to the signing liy eacii
sejiman, and reading over hy .sn4)erintendent to the crew. They dealt
also with rnnning agreements, and agreements for service in two or more
ships. 17 & 18 Vict. c. 104. s.s. 150, 151, 155, 156.

117. Changes in crew of foreign-going ships before finally sailing to
be sent to the nearest superintendent. 17 & 18 Vict. c. 104. s. loH.

118, 119 tlealt with certificates to be granted by the superintenili>iit
to the master, as to agreements with crew of foreign-going and liouie-
trade ships : 1 st, that -lucli agreements have been made •. 2nd, tliat iiotici' ul
agreemenis has been given within 21 days after 30 June and 31 Dec.
ir & 18 Vict. c. 104. S.S. 161, 102.

120. A copy of agreement with the crew was to be posted up in the
ship where the crew could see it. 17 & 18 Vict c. 104. s. 166.

121, 122 dealt with forgery, &c., of, and alterations, witliout consent,
made in the agreements witli the crew. 17& 18 Vict. c. 104. ,ss. 161,11)3.

123. Seamen can in any proceedings prove the agreement witiiout
producing it. 17 & 18 Vict. c. 104. s. 165.

124. — (!•) Witli respect to the engagement of seamen abroad, tlu'
following i)rovisions shall have effect : —

Where tin- master of a sliip engages a sejiman in any British po.s.si'ssioii
other than that in which the ship is registered or at a port in which tiuiv
is a British consular officer, the provisions of this Act respecting agiee-
ments with the crew nmde in the United Kingdom shall apply suhjeot tn
the following modifications : —

(«.) In any such Briti.sh pos.session the master shall engage tlu' seaman
before some officer being either a superir.Uitdent or, if there
is no such superintenden' an officer of cu.stoms :
(6.) At any such port having a i ntish consular officer, the muster
siiall, before carrying the seaman to sea, procure the sanction
of the consular officer, and shall engage the seaman before
that officer :
(c.) The officer shall endorse upon the agreement an attestation to
the effect that the agreement ha*i l)een signed in his pre.sence
and otherwise nuule as required by this Act, and also, if the
officer is a British consular officer, that it has his sanction,
and if the attestation is not made the burden of j)roving tiiat
the engagement was made as required by this Act shall lie
upon the master.
(2) If a master fails to comply with this section he shall be liable for
each offence to a fine not exceeding five pounds. 17 & 18 Vict. v. 104.
ss. 159, 160.

125 dealt with agreements with lascars. 18 & 19 Vict. c. 91. s. 23;
17 & 18 Vict. c. 104. s. 544.

126. The Bating of Seamen as A.B. 43 & 44 Vict. c. 16. s. 7.

F SEAMEN. [1894 | 1894.] 57 & 68 VICT. c. 60.— ALLOTMENT OP WAGES. 937

127-130 dealt with the discharge of seamen, where they were
(lischar<;ed in the presence of a superintendent, and the master shall
give a discharge, and return tlie seaman's certificate of competency
if he bad received it. And the master is also to sign a report of the
seaman's conduct and qualifications — in fact, give him a character.
Giving a false character is to be punished. 17 & 18 Vict. c. 104. ss. 172,
176.

131. Where a seaman is discharged before a superintendent he shall
receive his wages through or in the presence of the latter. 17 & 18 Vict,
c. 104. 8. 170.

132. The master is to deliver a full account of wages before he pays
off a seaman, and to state all deductions whatever. 17 & 18 Vict.
e. 104. s. 171, and 43 & 44 Vict. c. 16. s. 4.

fore finally sailing to
ct. c. 104. "s. 158.

e agi'eemeut without
seamen abroad, tln'

19 Vict. c. 91. s. 23;

Vict. c. 16. 8. 7.

133. Deductions from wages of seamen shall not be allowed unless
included in the account, except they arise after the account is delivered ;
iiml the deductions are to be entered in a book during the voyage.
17&18 Vict. c. 104. s. 171.

134, 135 dealt with time of payment of wages for foreign-going
and home-trade ships, and was in effect that the whole was to be paid
within two clear davs after the seaman leaves the ship. For sec. 134
see 43 & 44 Vict. c. 16. s. 4; and for sec. 135 see 17 & 18 Vict. c. 104.
s. 187.

136. Where a seaman is discharged, and the settlement of his wages
is completed before a superintendent, he shall sign a receipt in release
of all claims. 17 & 18 Vict. c. 104. s. 175 ; 43 & 44 Vict. c. 16. s. 4.

137. If a dispute as to wages totalling under 5/., the decision of the
questions may be left to the superintendent. 43 & 44 Vict. c. 16.
s. 4 (o) ; 17 & 18 Vict. c. 104. s. 173.

138. In any proceedings re wages claims or discharges before a
superintendent, the superintendent may require the production of the
ship's papers, &c. 17 & 18 Vict. c. 104. s. 174.

139. Where a seaman has agreed for payment in British sterling, or
any other money, any payment on account of his wages 'f made in any
other currency than that stated in the agreement, shall, notwithstanding
anything in the agreement, l)e made at the rate of exchange for the
money stated in the agreement for the time current at the place where
the payment is made. 52 & 53 Vict. c. 46. s. 4.

140 <lealt with advance i)ayments, which were restricted to one
month's pay, paid on condition of his going to sea in pursuance of the
agreement ; but, save as aforesaid, an agreement for payment of money
to the seaman conditionally on his going to sea from any port in the
United Kingdom was to be void. 17 & 18 Vict. c. 104. s. 149 ; 52 &
53 Vict. c. 46. s. 2 (1).

141. Stipulations as to allotment of wages during voyages were to be
inserted in the agreement, and ner r relative was defined as wife, father,
mother, grandfather, grandmother, child, grandchild, brother or sister
of the seaman. 17 & 18 Vict. c. 104. ss. 168, 169 ; 43 & 44 Vict,
c. 16. 8. 3.

142. Allotments through savings banks were to be paid out only
on an application through a superintendent of the Board of Trmle by the
seaman himself, or, if dead, to some person to whom his property, if under
100/., may be paid under the Act. 43 & 44 Vict. c. 16. s. 3 (2) (3).

^ !

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1 ;5

93S 57 & 58 VICT. c. 60.— DECEASED'S WAGES.

[1894.

143, 144 dealt with the right of suing for sums ailottcd when and
as the same are made payable if not paid, but barred the wife iVoni liiiv-
nient if she misconducted herself, and enacted that payment sliould bci/in
at the expiration of one month, or, if in favour of a savinos bank ''of
three months. 17 & 18 Vict. c. 104. s. 169; 43 & 44 Vict c 'us
8.3(4). ■ ■'"■

145 provides that the Board of Trade may make regulations conrcni-
ing seamen's wages being remitted by money orders. 17 it It) Viet
c. 104. s. 177.

146. Power is given to the Board of Trade to pay nmonnt of sea-
men's money order when order is lost. 17 & 18 Vict. c. 104. s. 178.

147 provides for penalty for issuing money orders with fiauilulfut
intent. 17 & 18 Vict. c. 104. s. 179; 54 & 55 Vict. c. GO. s. 1.

148. Power is given to the Board of Trade to maintain a (cntnil
seamen's savings bank in London, and establish branch banks and make
regulations. 17 & 18 Vict. c. 104. s. 180; 18 & 19 Vict. c. 91. t-. 17.

149. National Debt Conmiis.sioners may receive from and icpav In
the Board of Trade deposits in seamen's .savings banks and invest' tlu'
money so received in the same way as depo.sits from trustoc savings
banks. 17 & 18 Vict. c. 104. s. 180.

150. Deposits of any deceased depositor to be paid by the Board of
1'rade as if they were deposits of decejised .seaman r(!cei\ed uiulor pro-
visions of this Act. 17 & 18 Vict. c. 104. s. 199 ; 25 & 2U Vict, c G.'i,
s. 21 (4).

151. Expensi>s of savings banks may be paid out of interest received
from National Debt Commissioners.

152 provides that annual accounts and copy of regulations of Board
of Trade be laid before Parliament.

153. Board of 'i'rade officers to be exempt from legal proceedings,
except in case of wilful default.

154 enacted that forgery of documents, &c., for the purpose of olitain-
ing money in seaman's savings bank shall be punished with penal servi-
tude. 17 & 18 Vict. c. 104. s 203.

155. Bight to wages, &c., shall be taken to begin either at the time
the seaman, &c., commences work, or at the time specified in liis agree-
ment. 17 & 18 Vict. c. 104. s. 181.

156 provides that a seaman shall not by any agreement forfeit liis
lien on the ship, or be deprived of any remedy for the recovery of iiis
wages, nor by agreement abandon his right to wages in the event of the
loss of the ship, or abandon any right he may have or obtain in the
nature of .salvage; but nothing in the section was to apply to a sti[)nhition
made bv seamen belonging to a .shij) emploved on salvage serviee,
17 & 18 Vict. c. 104. s. 182 ; 25 & 26 Vict. c. 63. s. 18.

157- I'hc right to wages shall not de|)cnd on earning freight ; but in idl
cases of wreck or loss of the ship, proof that the seaman has not exerted
himself to save the same shall bar his claim to wages. Deceased .sen-
man's wages are to be paid as if he died during a voyage. 17 & 18 Vict.
c. 104. 88. 183, 184.

158. Wages on termination of service by wreck or illness of senman,
or his being left abroad under a certificate of his unfitness to proceed on
the voyage, &m only due to such time. 17 & 18 Vict. c. 104, s. 185.

f interest veceivi'd

■Illations of Board

legal proceedings,

purpose of olitaiii-
. with peniil scrvi-

1894.]

-7 & 5R VICT. c. 60.— RECOVERY OF WAGES. 939

159 i)rovi(le8 that wages are not to accrue during any time a seaman
untov fully refuses to work, or during imprisonment, unless the court
otknviso" orders. 17 & 18 Vict. c. 101. s. IHd.

160. If " seaman's illness incapacitating him from work is proved to
liavebeen (Niused by his own default, he shall not lie cntitleil to wages
for the time he was injap.ible of performing his duty. 30 & 31 Vict.

C.124. s. H.

161. riie costs of procuring the punishment by a competent tribunal
uf It seiiuiau may be deducted fro.n wages. 17 & 18 Vict. c. 104.
S.251.

162 provides that where a saaman has signed an agreement, but is
Jiv'hirged otherwise than in the terms thereof before the commencement
of the vovage, or before one month's wages are earned, without fault
on his part, and without his consjnt, he shall hv entitled, in addition to
i1k' wages he has earned, to due compensation, not exceeding one
month's wages, and may recover it in the same way as if it wore wages
duly earned. 17 & 18 Vict. c. lOt. s. 107.

163 provides that wages due to a seaman or apprentice to the sea service
>hiill not he subject to attachment or arrestment from any court. That
all iissigninent of the .same made prior to tlu; accruing thereof shall not
he hiiuling. A power of attorney to receive the same shall not be irre-
vot';il)le, and a payment of wages to the seaman or apprentice shall be
valiil, notwithstanding any previous sale, assignment, attachment, incum-
brance, or arrestment thereof. 17 & 18 Vict. c. 101. s. 233.

164. Wages not exceeding 50/. may be obtained by proceedings
iKtme any court of summary jurisdiction in or near the place where the
ilist'harge took place, or at any place where the i)erson on whom the claim
i<niii(le resides, and the order made by the court is to be final. 17 & 18
Vitlc. 101. s. 188.

165. A suit for wages not over 50/. shall not be instituted on behalf
nf any seaman or apprentice to the sea service in any superior court of
ivi'oid in Her Majesty's dominions, nor as an Admiralty proceeding in
any court having Admiralty jurisdiction in, those dominions, excejjt
|1) wliere the shipowner is adjudged bankrupt ; (2) where the ship is under
arrest or sold by the authority of such court ; (3) where a court of summary
jurisdiction refers the claim to any such court ; or (1) where neither the
owiiei' nor the master resides within 20 miles of the place where the
(.iiiimant is discharged or put ashore. 17 & 18 Vict. c. 104. s. 189.

166 provides that wages should not be recoverable abroad if the engage-
meut was f(ir a voyage terminating in the United Kingdom, unless the
•eauian is discharged with such sanction as is reijuired by the Act, and
with the written consent of the master, or proves such ill-usage by the
master iis warrants reasonable apprehension of danger to his life ; and
-rtdiidly, if a seaman, on his return to the United Kingdom, proves that
till' muster or owner has been gnilty of any such conduct which but for
tins section would have entitled him to sue for wages before the
t'liniiiation of the voyage, he shall l)e entitled to compensation not
iicecding 20/. 17 & 18 Vict. c. 10-1. s. 190.

167 provides that a master shall have the same rights, liens, and
remedies for the recovery of his wages as a seaman, and he, and every
person lawfully acting as master of a ship by reason of the death or in-
opaeity fiom illness of the master, shall, as far as possible, have the

:»

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940 57&58 VICT. c. 60.— SEAMAN DYING ABKOAT). [mi

same rights for the recovery of disbursements properly made on account
of the ship; and thirdly, if in rny Admiralty proceeding in any court
having Admiralty jurisdiction touching the claim of a master the
court may take notice of any counter-claim, and may settle all accounts
between the parties to th(! proceeding. 17 & 18 Vict. c. 104. s 19i .
52 & 53 Vict. c. 46. 8. 1. '

168. Power is given to any court in suits instituted before it to
rescind any contract between seaman, &c., and owner.

169. The property of seamen of a British ship who die durinp; vovai'p
are to be taken charge of by the master, who may, if he t'.ink fltj soil
them by auction, entering in his official log book a description of the
articles : what each sold for : what wages were due, and what were tbc
deductions; which entry is to be signed by the master and attestedbv
the mate and some other member of the crew. 17 & 18 Vict. c. 104
s. 194.

170. Where a seaman, &c., dies, and the ship remains 48 hour? at
some port elsewhere than in the United Kingdom, the master sliall report
the case to the Briti.sh consular officer, or, if the port is a Briti^ih posses-
sion, to the officer of customs there, who may require the properly to be
delivered or paid to him, giving the master a receipt, which the master is
to produce to the superintendent 48 hours after his arrival at his port in
the United Kingdom. Where the ship proceeds at once to tlu> United
Kingdom, or the said officers do not require deli\ery of the property,
ihen within 48 hours of the ship's arrival in the United Kingilom the
^nopiTty is to be delivered or paid to the sujierintendent at tiiat port,
with an account of the property, and no deduction is to be allowed unless
entered in the official log book. 17 & 18 Vict. c. 104. s. 195.

171. If the master does not do the above things he is liable for the
property of the deceased seaman, and liable to a fine not exceeding; treble
the value of the property not accounted for, and if the master does not
deliver or account for the [jroperty the owner is liable in the same wiiy
and to the same penalty, and the property may be recovered in the same
way as seaman's wages. 17 & 18 Vict. c. 104. s. 196.

172 provides that if property of a deceased seaman is loft abroad
but not on board ship, the chief officer of customs, in the case of a British
possession, and in other cases the British consular officer, shall take
charge of the property. 17 & 18 Vict. c. 104. s. 197; 25 & 26 Viit.
c. 63. s, 20.

173. A chief officer of customs in a British possession may sell any
of the property of a deceased seaman delivered to him, and .shall render
accounts thereof quarterly, or as required, to the Board of Trade. 17 k
18 Vict. c. 104. s. 197.

174 dealt with the recovery of wages, Ac, of seamen lost with their
ships. 25 & 26 Vict. c. 63. s. 21.

175 dealt with property of seamen dying at home. 17 & 18 Vict,
c. 104. s. 198.

176 dealt with the payment over of property of deceased seamen by
Board of Trade. 17 & 18 Vict. c. 104. s. 199.

177 provided for the dealing with deceased seaman's property when
he leaves a will. 17 & 18 Vict. c. 104. s. 200.

178. Claims by creditors. 17 & 18 Vict. c. 104. s. 201.

f'FlM™?!" T

ABT^OAT). [iHOj.

leamen lost with their

1IJ94.] 57 Ite 58 VICT o. 60 —SEAMEN LEFT ABROAD. 941

179. Dealing with uncluiined proiierty of deceased seaman after
sis vears, where no claim to it. 17 »& 18 Vict. c. 101. a. 202.

180 dealt with the case of forgery of documents, «fcc., for the [mr-
poseof obtaining property of deceased seamen. 17 «& 18 Vict. c. 104.

181 dealt with property of seamen discharged from Royal Navy and
living on their wav home in a merchant ship. 17 & 18 Vict. c. 104.

i.m.

182 Helief to seamen's families, to I)e chargeahlo on a certain pro-
puilion of their wages. 17 & 18 V^ict. c. 104. s. 11)2.

183. Boards of guardians may give notice to owner of ship whereon
jtiiinan is serving of any i-laim, and may enforce the charge on seaman's
ivtiiiii. 17 & 18 Viet. c. 104. s. 193.

184 <lealt with [K'nalties iinpose<l on masters of ships leaving certain
Miiimu in distress in the United Kingdom, namely, .seamen tliey had
[nought from any foreign country not having a consular officer in the
L'uited Kingdom. 17 & 18 Vict', c. 120. s. 10.

185 provides for the Secretary of State in Council of India taking
diarge and sending home destitute lascars, and as to guardians giving
notice to the said Secretary of State of relief given to lascars, who is to
repav the guaidians all money expended by them in the relief of destitute
bears. 18 & 19 Viet. c. 91. s. 22.

186 i)ro\ides for the case where a British ship is transferred at any
port outside Her Majesty's dominions, and a seaman does not consent
10 continue the voyage, or where the services of any seaman, &c.,
tiTiiiinate at any port out of Her Majesty's dominions ; the master in
siicb cases is to pay the seaman's wages, i)rovide him with employment
oil some British vessel homeward bound, or provide him or the consular
officer or lieatl merchant of the place witii the expenses of the seaman's
[lassiige home, otherwise these expenses, by whomsoever incurred, are to
be a charge upon the ship. 17 & 18 Vict. c. 104. s. 205.

187 provides that any master forcing seamen on shore, either in or
out uf Her Majesty's dominions, or leaving them behind, shall be
guilty of misdemeanor. 17 & 18 Viet. c. 104. s. 206.

188. Seamen, &c., are not to be discharged or left abroad, ashore or
at *a, unless the master in-eviousiy obtains, endorsed on the agreement,
the sanction, or in the case of leaving behind the certificate, at any place
in a British possession, of a superintendent or chief officer of customs,
or elsewhere of a British consular officer, or in his absence of two
met chants, or if one there, that one; but this sanction was not to be
required if the discharge was in the British possession where the
seaman was .shipped. If sanction, where necessary, is not obtained,
the master is guilty of misdemeanor. 17 & 18 Vict. c. 1C4. s. 207.

189. An account of wages and payment of the same is to be made to
the person signing the certificate, in the case of a seaman left abroad, in
or out of Her Majesty's dominions, on the ground of the seaman's
uttfitness or inability to proceed on the voyage. If the seaman is left in
« British possession, the master shall pay the amount of wages to the
seaman so left, but if left elsewhere, to the British consular officer, and
wliere possible, the payment is to be made in money ; if not by bill drawn
on the owner of the ship, the person signing the certificate is to endorse

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912 57 & 58 VICT. c. fiO.— DISTRESSED SEAMED. [ift04

Provisions for
miiintt'iianco
aiiil relii't'uf
distressed
Huumoii.

the l)ill that the sumo is <h'a\vn for seaman's wages, and shall also oikIoi^.
(tn the nyreement with the erew the amount of tin; 1)111, «ii,| (Ik. dwii .!■
shall be liable to pay holder or endorsee.

In rej^ard to wagcis paid to the consular ollieer, if the seaman
quits the port he shall deduct out of the sum the maintenance <jr tl„.
seaman and hand him the balance ; if the seaman dies, he shall deal with

the sum as ()roperty of a deceased seaman ; and if the si'auian is sent | ,

at the public expense, he shall account to the Board of Trade 17 jfc IN
Vict, c 101. s. 20!) ; 25 & 20 Vict. c. 63. s. 19

190. The Board of Trade may make regulation.s as to the relief
maintenance, and sending home of distressed seamen. '

191. — (1.) The following authorities, that is to say, Governors of
British possessions, British consular otlicers, and other oificers of Her
Majesty in foreign counti-ies shall, and, in places when; tluMc arc no sueji
ollicers, any twort^sident British merchants, or if there is onlv one Hiitisii
merchant so resident that merchant, may, in accordance; with and on the
conditions prescrilied by the distressed seamen regnlatioiis, provide fer
the nuiintenance, until a passage home can be procured, of the following'
seamen and apprentices (who are in this Act included in the lemi
distressed seamen) ; namely, —

(a.) Heamcn and apprentices to the sea service, whether siihjoets

of Her Majesty or not, who by reason of having lieon dis-

charged or left behind abroad or shipwrecked from any British

ship, or any of Her Majesty's ships, are in distress in miy

place abioad ; and

{It.) Seunnin and apprentices to the sea service, being subjects of

Her Majesty, who have been engaged by any ])ersoii aetini;

either as principal or agent to serve in a ship belonginj; to

the Goverinnent or to a subject or citizen of a foiviifn

country, and are in distress in any place abroad.

(2.) For the purpose of providing a distressed seaman with a jxissitn^o

home, the authority shall put him on board a British shi|) bound either

to the United Kingdom or to the British possession to which the seiiMuni

belongs (as the case requires), which is in want of men to make ii[) its

complement ; or if there is no such ship, then the authority shall provide

the seaman with a passage home as soon as possible in any ship, British

or foreign, bound as aforesaid.

(3.) The authority shall endor.se on the agreement with the crew of
the ship, if n British ship, on board of which a distie.ssed seaman is
placed, the name of every i)er.son so plnced on board, with any partienlars
directed by the distressed .seamen regulations to be endorsed.

(4.) The authority shall be paid in re.spect of the expenses of the
maintemmce and conveyance of distressed seau'en such sums as the
Board of Trade may allow, and tho.se sums shall, on the production of
the bills of disbur.'^emeuts, with the proper vouchers, be paid as herein-
after provided. 25 & 20 Vict. c. 03. s. 22; 17 & 18 Vict. c. 104.
s. 211; 18 & 19 Vict. c. 91. s. 16.

192. Ma.sters of ships are compelled to afford a passage to «nd niiun-
tain all distressed seamen whom it is required under this Act to take m
board not exceeding one for every 50 tons burden, and on prodnetion
of the certiticate signed by the authority bywho.se direction any tlis-
tressed seaman was received, and on a declaration made before a J. P.
and verified by the Registrar-General of Shipping and Seamen, stating
the number of days' maintenance, and stating full complement of his
crew and the actual number, he will be paid for the maintenance and
passage of every seaman so conveyed, exceeding the number, if auy,

1894.]

57 & 58 VICT. c. 60.— MEDICAL STORES.

043

■^ITP

'ns lis to tlif reliff,

wimteil to make up the oomi)lpmont of his crew. If the miv.st.or fails to
comply without reusoimble cause he will be liahli^ to a lu-nalty of 100/.
17 .t \^ Vict. c. 104. s. 212.

193. Wliere any expenses, either with respeet to any seaman belon;;;-
iiictoii Hritish ship or with resi)eet to a subject of Her Majesty engaj^ed
to M'lvi' in a ship belonfi;injx to the j^overnnient or subject or citizen of a
forcJiMi country, either for the niainteuanct^ clothinj;, conveyance home,
or burial, are int'urred by or on behalf of the Crown or are incurred by
till' <;()\i'rnment of a foreign country and repaid to that coiuitry by or on
behalf of tlu) Crown, those expenses shall l)e a charge upon the ship,
wlu'tiior JJritish or foreign, to which such distressed seaman belonged,
ami al^o, if the ship be a foreign ship, against the person, whether
|)iiiici|)al or agent, who engaged the seaman, &c., for service. 17 & 18
Vict. e. 104. s. 213. ; 18 & 19 Viet. c. !)1. s. IG.

194. All expenses paid by or on behalf of the Crown for relief of
(listi't'ssud seamen shall be paid out of the mercantile marine fund, and
lhi> sums received towards those expenses shall be cari'ied to the credit
(if tlmt fund. 15 & 4G Vict. c. 55. s, 3 (e.).

195, 196. 197 dealt with .seamen and their rights on leaving their
sliip to forthwith enter the Royal Navy. 17 & 18 Viet. c. 104. ss. 214,
:il5, 211), 217, 218, 210, 220.

198 provides for the complaints of three or more of the crew of
a British ship who consider the water for the use of the crew unfit for
iisi' or (lelicient in quantity : — That they might complain to either an
(ilKt'cr in command of one of Her Majesty's ships, a British consuhir
ollicer, a superintendent or a chief officer of customs : and if the person
maiiini; the examination finds that the provisions or water arc unfit for
iisi' or ileiicient in quantity, he shall signify it in writing to the nuister ;
and if the master does not provide other proper provisions or water
(ir uses any provisions or water so stated to la; unfit for u.se, he shall be
lialilc to a fine not exceeding 20/. The person making the examination
sliail enter his report in the otlicial log book ; an<l if he certifies there was
110 reasonable ground for the complaint, each of the complainers .shall be
iialile to forfeit out of his wages a sum not exeecdmg one week's wages.
17 & 18 Vict. c. 104. ss. 221, 222.

199 dealt with an allowance to a seaman for short or bad provi-
sions. 17 & 18 Vict. c. 104. s. 223.

200. The Board of Trade is authorized to issue scales of medicines
and nieilieal stores suitable for different classes of ships and voyages.
:iOA3l Vict. c. 124. s. 4.

and measures are to be kept on board.

weights

201. Proper
17.^ 18 Vict. c. 104. s. TZb.

202 provided for tlu; iiis[)ection of medicines, medical store.*!, and
nnte-seorbuties. 17 & 18 Vict. c. 104. s. 224.

203. For the medical inspection of seamen. 30 & 31 Vict. c. 124.

s.lO(l).

204 provided for the appointment of medical inspectors. 17 & 18
Vict. c. 104. s. 226; 30 & 31 Vict. c. 124. s. iO (1.).

205. The Governor of a Briti.sh possession sliall have the power in
that possession —

(a.) of appointing medical inspectors of seamen, of charging fees for
medical examinations by those inspectors, and of determining
the remuneration to be paid to those inspectors ; and,

jHi

Appointment
of medicul
inspector and
n-gulutions as
to supply of
uuti-scorbutic8
in colonies.

Oil

57 & 58 VICT. c. 60.— HURT TO SEAMAN.

[1894.

(ft.) sulijcct to llu' laws of tlint possCHsion, to mnke regulations emu
cerning tho supply in that possession of unti-scoilMitjcs Inr
the use of ships, und nnti-scorhutics (hily supplied in ncctml.
nne(! with those re<^iilutions shall he deemed to Ik- lit nml
proper for the use of ships.
30 A 31 Vict. c. 124. s. 6.

206 provided for inspection of provisions and water for crew of
ships going through the Suez Canal or round the Cape of (iood Hone

207. If the master of, or a seaman, or apprentice belonj^ing to a shin
receives any hurt or injury in the .service of the ship, the expense of pn,.
viding till! necessiu-y surgical and medical attendance and nicdieinc niui
also the expenses of tlu; muintenaiu-e of thesaiil injured lu-rsons until lie is
cured or dies, or is liroiight hack, if shipped in the United Kini,'(loin t(ia
port in the United Kingdom, or if shipped in a Hritish possession to a
port of thai posst-ssion, and of his conveyance to the port, and in case df
death the exjiense of burial, shall be defrayei! by t\w owner of tlic sliin
without any ileduction on that account from his wages. So also if he has to
be removed to avoid infection, or if the illness is brought on bv had pio-
visions or water. And the expenses of all medicines and atteudaiiw is
to be defrayed in the saum manner. In all other cases the r 'isoiialilc
exjjenses in rcspt-ct to illness or burial, if proved, are to come on ol' tlic
seaman's wages. 17 & 18 Vict.c. 101. s. 228 j 30 & 31 Vict. c. IJl. s. 7,

208. If any expenses attendant on the illness, hurt, or injury ofascii-
nuin, &c., which are to be paid by the master or owner, are pai<l iiv am
British consular officer or other person on behalf of the Crown, these cv-
penses are to be repaid to that person by the master, and if not so repaid
are to be charged upon the ship ; and a certificate of the facts, signcil In
such person, slinll he sutlicient proof of such expense. 17 A IN Vict.
c. 104. s. 229.

209. Every foreign-going ship having 100 persons on hoard is to
carry a medical practitioner on board, 17 «& 18 Vict. c. 10-1. s. 230.

210 tlt'alt with the acconunodation for seamen. 17 & 18 Viit.
c. 10 J. s. 231 ; 30 & 31 Vict. c. 121. s. 9.

211 dealt with the facilities to be allowed to seamen for iimking
complaint. 17 & 18 Vict. c. 104. s. 232.

212. Assignment or sale of salvage by a seaman made prior to tlii'
accruing thereof is invalid, and a power of attorney for receipt of suili
salvage is not irrevocable. 17 & 18 Vict. e. 104. part of s. 233.

213. No debt exceeding 5*. incurred by any seaman after he is
engaged is recoverable until the service agreed for is concluded.
17 & 18 Vict. c. 104. s. 234.

214 dealt with seamen's lodging-houses; and gave power to local
authorities to make bye-laws respecting the same, and the expen.-cs may
come out of their funds as sanitary authorities. 4(i & 47 Vict. i. 11.

8. 48.

215 provides for penalties for overcharges by lodging-house keepers.
17 & 18 Vict. c. 104. s. 235.

216, 217 provide for penalty for detaining seamen's effects and
solicitations by lodging-house keepers. 17 & 18 Vict. c. 104. ss. 230,
237, 238.

^^^m

17 & 18 Vid.

;ing-bouse keepers,

m.] 57 A 58 VICT. c. 00.— ARREST OF DESERTERS. 945

218. Pcnnlty I'oi- bciiis on hnanl ship without pormission beforo
.wiNifii leaver at tlio end of tlicir »'iiga<rpinent. 17 & 18 Vict. c. 104
,:ril; I'^Si 41 Vict. c. ',,. .-«. 5.

219 t xlciulcd till' piovi.sioiis of tho hist .section to foroijjn ship.s where
tliegovcrmnent of the country of those forei^'u .sliip.s has provided a
.imilar law. l.'J & 41 Viet. c. IG. .h. (!.

220 'Ic'i't with tiie puni.shniont of master, seaman, or apprentice of
British sliij) wlio by wilfid iireaeiiof duty or hy necrhrt of (hity en(hni<^er-
iiig life or io.s.s or .serious damage to .shi[). 17 & 18 Vict. c. 101. s. 231),

221 dealt witli (hssertion, and absence without leave, of senmon.
i;&18 Vict. c. 101. H. '2i:i.

222. A .seivman deserter in the. United Kingdom can be conveyed on
boiinl ship, but if he so retiuires he may lir.st b(> taken before some court
lapable of hearing the matter, and if such coiu't thinks that the st^aman
i< being conveyed on board on insullicient gi'ounds it may fine up to 20/.
the person guilty. 13 & 41 Vict. e. 10. s. 10.

223 provided for tho case of a t .iman out of tho United Kingdom
iliiiinga voyage being guilty of desertion or absence without leave, and gave
|iiiHcrt() the nutster, &c., in any place in Her Maj(!sty's dominion.s, with
(ir without the assistance of the local police, and ul.so out of Her
.Majesty's dominions in and so far as the laws in that place will admit, to
iirrc-t iiiin without first procuring a warrant. He may be taken before a
court J or, if he does not desire it, or if there is no court, he can be conveyed
direct on board. If the .jurt considers the arrest improper it can
impose a fine np to 20/., which fine is to bo a bar to any action for
false imprisonment. If out of the United Kingdom a .se^iman is suffer-
ing imprisonment for desertion or breach of discipline, and his services
are required on board ship, a .I.P. may, on the ap[)lication of the master,
owner, or agent, notwithstanding the term of imprisonment is not at
an end, cause the seaman «&c. to be conveved on board his .ship.
i;&18 Viet. c. 104. ,ss. 148,210.

224. Where a seaman is brought before a court out of the United
Kingdom for desertion, the court in lieu of imprisonment may cause the
(lifender to be conveyed on board ship for the puri)ose of proceeding
ou his voyage. But if in the United Kingdom, a seaman intending to
absent himself from his duty may give the master notice, not less than
18 bom'S before he ought to be on board, and tlu^n the court is not to
exereise any of the powers given of having him conveyed on board.
17 & 18 Vict. c. 104. s. 247 ; 43 & 44 Vict. c. 10. part s. 10.

225 provides for the [umishment of seamen &c. lawfully engaged to the
sea service committing any offences against discipline. 17 & 18 Vict,
c. 104. s, 2 13 (3) to end.

226. Summary remedies of master are not to affect his remedies for
breach of contract.

227 provides for penalty for false statement by a seaman as to his last
ship or her name. 17 & 18 Vict. c. 104. s. 255.

228. AH offences are to be entered in official log-book, a copy being
furnished to the accused seaman, and produced in any future legal pro-
teediug. 17 & 18 Vict. c. 104. s. 244.

229. If a seaman deserts his ship abrornl, the master is to produce
the entry of the desertion to the person authorized to grant certificates

S 2430. 3 O

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^"iSWiiai4y;"itWfi'ii!t!}«lK;iti!'.-':'Ii'iH'iti'jn<i'^JlHKKi'

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0i6 57 & 5S VICT. n. 00.— FOREIGN DESERTERS.

■

!■ I ■

[\m.

for Ipaving softinon behind, and tlint por.«on is to traiiHtiiil ii copy to tlm
Regigtrnr-Oeneriil of Sliipping, &(;,, Jiiif^liind. 17 A 1ft Viol c loi
8. 2 19.

230 l>i'ovidrd that a .snporiiitondfnt .sliall kocj) a n^gistcr of (lixritTs

231. The entry in tho ofllciiil log-hook is gcod to provt? dcscilion in
proceedings for forfeiture of waires. 17 & IH Vict. e. 101. s. 250.

232. Forfeitures of wages and eff«'ets for desertion are to go towards
reiudiur.sing expen.ses caused by tlie desertion, and ihc Ipiiliiiicc hi l,,.
paid into the exchequer. In any otlier case other tlian Ion, in th,.
absences of specilic provision to the contrary, tiie furl , arc to hu
for the benefit of tlie nuister or owner. 17 & IH Viet. c. lOI, s. '2o',i,

233. Any questions of forfeiture or deductions f rum the wages of a
seaman may be determined in any proceeding.s instituted witii nspcct to
these wages. 17 & 1« Vict. e. lOt. s. 25 1.

234. Where the seaman contracts for wages by the voyiig(>, run, or
share, the amount of forfeiture out of wages shall be an aniount licaiini'
the same proportion to the whole wages or share, as a month or any
other period fixed bears to the whole time spent in the voyai'c
17 & IH Vict. c. 101. s. 252.

235 dealt with deduction from wages : and payments to supeiinten-
dents of fines. 17 & 18 Vict. c. lOt. s. 250.

236 'lealt with penalities for enticing to desert and luirbomiiii'
deserters. 17 & 18 Vict. c. lOi. s. 257.

237. Penalties on stowaways : the discipline of stowaways : niiil
seamen carried under compulsion. 17 & 18 Vict. c. 10 "J. 258.

238. Where facilities are given by foreign goverr for ivcovciy
of seamen who desert from British merchant ships, .ajesty niav,
by Order in Council, declare this section to apply ; and where it ap|)iies in
the case of any foreign country, and a seaman or apprentice not being a
slave deserts when within any of Her Majesty's dominions from a nuTchaiit
ship belonging to a subject of that foreign country, any court, &.Q., that
would have cogni.sance of the matter if the seaman had deserted from a
British ship, shall, on application of a consular otiiccr of tln^ foreign
country, aid in the apprehension of the deserter, and may, on information
given on oath, issue a warrant, and on proof of the desertion order the
seaman to bo conveyed on board the foreign ship. 15 & 10 Vict. c. 20,
s. 1.

239-243 dealt with otficial logs and the keeping of the samo,
17 & 18 Vict. c. 104. ss. 280, 281, 282, 283, 281, 285, 280, 287.

244, 245 dealt with Local Marine Boards. 17 & 18 Vict. c. 101.
ss. 110, 119.

246-250. Mercantile marine officers. 17 & 18 Vict. c. 104. ss. Ii2,
123, 124, 127; 30 & 37 Vict. c. 85. s. 10; 25 & 20 Vict. c. 03. s. IG.

251. Establishment in the port of London, under the control of the
Board of Trade, of a general register and record office of seameu.
17 & 18 Vict. c. 104. s. 271.

252, 253. Register of seamen; lists of crew. 17 & 18 Vict,c.l04,
ss. 272 273, 274, 275.

254. Return of births and deaths in British ships. 17 & IB Vict.
c. 104. s. 273 (8) (9) ; Registration of births and deaths at sea, 37 & 38
Vict. c. 88. s. 37.

TERS. [1H04.

(mil II ('(ipy to tlin
i 18 Vict. c. 104.

j»istcr of dcscrtiTH.

l)rovt' (k'sortion in
101. s. 250.

I lire to <^o towards

ihi' lillllllU't' Id Ii(>

II 'nil, ill till'

rl . till' ti) III'

;. e. 10 1, s. 2o;{.

lum tlic wap's (if II
itcd witli rr>|H'cl ti)

(lii> voyajjc, run, m-
nil iiiiioiiiit liciiriiii;
as a iiioiitli or any
;ut in till' voyaj,'!'.

iicnts to supciiiiten-

;rt and harbouring

of stowaways : nivl
1(1 '^. 258.

•E for ivcoverv

I, .ajt'sty limy,

III where it aiiplies iu
iprunticc not I icing a
icnsfroinamcrchiiiit

any court, &.C., tliut
had (k'St'itcd fnnii a
ll'icer of the. foreign
may, on iuforiiiiitioii
(lesei'tion order tlio
15 & 10 Vict. c. 20.

eping of the snmo.

:85, 28G, 287.

L7 & IH Vict. c. 101.

? Viet. c. 104. ss. 1-22,
20 Vict. e. 63. s, 10.
H' the control of the
rd office of seauieu.

17 & 18 Vict. c. 104.

diips. 17 (fc 18 Viet,
eaths at sea, 37 (fc 38

,^9t,] .j7 & 38 VICT. c. 00.— OOL. APPLICATION. 947

256. ll('t'>rn as to list of crow in cnso of transfer or loss of ship.
17 i 18 Vict. c. 101. s. 27(J. Sec also 'Mi & ;17 Vi(;t. c. H.j. s. 22.

256. 'rrunsnussion of (hjcumonts to registrar by superintendents and
other oHiccrs. 17 »t IK Vict. e. lOi. s. 277.

257. Whenever a ship, in whatever part of Ilor Majesty's do-
iiiiniiins it is n!gist(!i'e(l (e.\.ci'[)t a passmigor ship), iirrivivs at a port in a
lirilisli possession, or at a port (dsewhcit- at which there is a IJritish
rtibular otllcer, and remains thereat for 18 hours, the master shall,
ffithin IS hours of tho ship's arrival, deliver to tlu^ chief officer of customs
urBiilish consular oHicer the agreement with the cr 'w, &c., or if the ship
i< n'l'istored in a British [losscssioii such of these ([o(!Uiniu»t3 as tho ship
i< provided witli, which are to Ito ri'tiuiKid to the master on departure of
theslii[i \Tith an endor.semont of the time when delivered and returned,
and if it apiiears tho laws have bec.i irausgressed the officer is to

iLikoim endorsemeni to tiiat effect, 'uid tmnsmitacopy to the llegistrar-
litnenil of Shipping and Seamen. 17 & 18 V'mt. c. 101. s. 279.

258. If II master is removed or superseded during tin; progress of a
voyiigo lie is to deliver to his successor the various documents relating
10 the navigation of the ship and crew. 17 & 18 Vict. c. 104. s. 259.

259. Corporations, &c., may grant sites for sailors' homos. 17 & 18
Vid. c. 540.

260. 261 provided that Part 2 of the Act shall apply to ships
ngistered iu tho United Kingdom and elsewhere. 17 \ 18 Vict. c. 10 1.

s.iOO.

262, 263. Partial application of Part 2 to ships of lighthouse
authorities and pleasure yachts, and to fishing boats.

264. If the legislature of a British possession by any law apply or Applicntion of
adapt to any British ship registered at, trading with, or being at any port I''""! 2 to

in that possession, and to the ownei.s, masters, and crews uf those ships, eolony by
au) provisions of this part of this Act which do not otherwise so apply, J^' 'ylj'mn.
iiith law shall have eltect throughout Her Majesty's dominions, and in
all pbces where Her Majesty has jurisdiction, in the same manner as if
it were enacted in this Act. 17 & 18 Vict. c. 104. s. 288.

265. Where in any matter relating to a ship or to a person belonging Conflict of lawn,
to n ship there appears to bo a conflict of laws, then, it' there is in this

part of this Act any provision on the subject which is hereby expressly
made to extend to that ship, the case shall be governed by that i)ro\'i-
sion, but if there is no such provision the case shall be go\ erned by the
law of the port at which the ship is registered. 17 & 18 Vict. c. 104.
8.290,

266. Unregistered British ship ileemed to be registered in the
United Kingdom for Part 2 purposes. 46 & 47 Vict. c. 41. s. 49.

PART 3 (sees. 267 to 368) accords with Parts 3 and 4 of 17 &
18 Vict. 0. 104. and 18 & 19 V'.ct. c. 119. And sees. .365 and 306
show how far the Act is or may be applied to the colonics ; and
sec. 735 how far this part of the Act may be repealed by the same.

287 gives the definition of " passenger " and " pas.senger steamer."
IS & 19 Vict. c. 119. s. 3; 26 & 27 Vict. c. 51. s. 3 ; 52 & 53 Vict.

C.29.S.2.

3o 2

94)8 57 & 58 VICT. c. 60.— COL. CERTIFICATES.

[im.

268 gives the meaning of " emigrant .ship " ; e.g., if it carry more than
50 steerage passengers or a greiiter number of steerage passciigtMs tlimiin
the proportion, if a sailing vessel, of one ailult to 33 tons of ship's rcfistfiod
tonnage : if a steamship, one a(hilt to every 20 tons. And " cmitrrant
ship " includes a ship which, having proceeded from a port oiitsido tin'
British Islands, takes on board at any port in the British Islands sutli
number of steerage passengers, whether British subjects or aliens
resident in the British Islands, as wouUl with or without the steern"i'
passengers she has already on board constitute her an emigrant ship.
The .section then .set out how to distinguish "cabin" from "steeriifi"
passenger. 26 & 27 Vict. c. 51. s. 3 ; 18 & 19 Vict. c. 1 19. s. .3. "

269. The scale for determining length of voyage may bo one of
the Board of Trade's scales. 18 & 19 Vict. c. 119. s. 3U.

Definition of 270. For the purposes of this part of the Act a coloninl vovii^t.

coloniiil voyngp. means a voyage from any port in a British possession, other tiinii Jiriifd
India and Hong Kong, to any port whatcve'-, where tlie distance lutwiHn
such ports exceeds four hundred miles, or the duration of the vovai'c, uv
determined under this Part of this Act, exceeds three days. 18 it li) \k\
c. 119. s. 95.

271. An annual survey of passenger steamers which carried more
than 12 passengers was provided for. 18 & 19 Vict. e. 119. s. li),

272, 273 give the mode of survey and declaration of snrviv,
and transmission of declaration, &c. 17 & 18 Vict. c. 104. ss. 309, 3lil.

274. Issue of passenger steamer's certificate. 17 it 18 Viet, c 1C4
s. 312.

275 gives an appeal to a court of survey if any owner of a stcanKt
feels himself aggrieved by a survey by a shipwright or engineer surveyor
39 & 40 Vict. c. 80. s. 1-4 (1).

276 'leals with transmission by Board of Trade of ccrtificatp in
duplicate to the port of the owner or where the steamer is Iviii".
17 & 18 Vict. c. 101. 8. 313.

277, 278 tleal with fees for certificate and duration of eortifiwiti'.
17 & 18 Vict. c. 101. .s. 31 1, 315.

279-281. Cancellation, delivery, and posting ui) of cortiCcate.
17 & 18 Vict. c. 101. s. 316.

282. Penalty for forgeiy of certificate. 17 & 18 Vict. c. 101
e. 320.

283. Penalty on carrying |)assengers in excess of numl)er nllowtd
by certificate. 17 & 18 Vi<;i. c. 101. s. 319.

284. Where the legi.slature of any British i)ossc.ssion provides for tlw
survi'y of, and grant of certificates for, passenger steamers, and the Bwmluf j
Trade report to Her Majesty the Queen that they are satisfied tliat ilie
certificates are to the like effect and are granted after a likpsnrvpy,nniliii i
such manner as to be equally cflicient with the certificates granted for iLe I
same purpose in the U.K. under this Act, Her Majesty in Council nuiv ;-
(1) declare that the certificates granted in the said Briti.sli posi*>siun |
.shall be of the same force as if gi-anted under this Act ; and |
declare that all or any of the provisions of this part of this Aet wliiili j
relate to passenger .steamers' certificates shall, either without niodifi«iti»n |
or with such modifications as to Her Majesty may seem uecessarv,

Colonial certi-
ficates for
passenger
steamers.

Wff

[CATES. [1891,

m.]

57 & 58 VICT. e. 60.— EMIGRANT SHIP.

919

duration of ccrtiCwiti',

apply to the eortificatos gmntod in tho said British possfssioii ; and (.'})
imiioso isuch conditions and uiaki- such regulations with respect to the
ffrtilicatos and to the use, dclivciy, and cancclhition thereof as to Her
Majesty may seem fit, and impose fines not exceeding 50/. for llie breacli
of those conditions and regnhitions. 39 & 10 Vict, c, 80. s. 17.

285 fleals with equipment of passenger .steamers; tliat they should
have compasses properly adjusted, hose, deck shelters, and safety valve on
well l)oiler out of the control of the engineer when steam is up. The
lioniilty for not having these things may be 100/. 17 & 18 Vict, c 101
s3Ul.

286 prohibited increasing the weight on the safety val\e beyond the
limits fixed by the surveyor, ^ee s. 433. 17 & 18 Vict. c. 101. s. 302.

287 <lP'ilt with good behaviour of passengers on board and puymeut

il fares.

288. Til*' master may exclude drunken or l)ad-mannered passengers
cubome-bound steamers. 25 &. 26 Vict. c. 63. ss. 35, 37.

3. Emigrant Ships.

Survey of Emiyrant S/tijJu.

[Sec sees. 365, 366. That this Part applies to the colonics.]

289. — "(1.) An emigrant .ship, in respect of Mhich a passenger Pivliniiniivy
>li'iim('r's ccrtilieate is not in force, shall nt)t clear outwards or proceed survey of
loHfl on any voyage unless she has been surveyed under the direction of emigrant ships,
tbi' I'lnigration officer at the [wrt of clearance, but at the expense of the
owner or chiirterer thereof, by two or more comiietent surveyors to l)e
appointod at any port in the British Islantls where there is an emigration
iittieir by the Board of Trade, and at other ports by the Counnissioners
of CiKstonis, and has been leported by such surveyors to be in their
"piiiitm seaworthy and lit for her intended voyage.

" (i.) The siu'vey shall be made before any portion of the cargo is taken
on Ixwnl, except so much as may be necessary for ballasting the ship, and
>iidi portion of cargo if huleii on board shall be shifted, if reipiired by
llip emigration officer or the siu'veyors, .so as to expose to ^ iew succes-
>iv('ly every part of the frame of the ship.

" (3.) If any such surveyors report that the ship is not .seaworthy, or
not fit for her intendeil voyage, the owner or charterer may, if he thinks
tit, by writing under his hand require the emigration officer to appoint
three other competent surveyors (of whom two at least must be ship-
wTights) to survey the ship at the exiK'nse of the owner or chaiterer, and
the said officer shall thereupon ai)point such surveyors, and they shall
Jiii'vey the ship ; and if by unanimous report under their hands, Ixit not
otherwise, thoy declare the shii* to be .seaworthy and lit for her intended
voyage, the ^liip shall for the pur^)oses of this Part of the Act be deemed
H'nworthy and iv i'cv that voyage.

"(1.) If any reqimement of this .section is not complied with in the
ease of any eniigiimt ship, the owner, charterer, or master of the .ship or
niiy jf (hern shall f( r each offence be liable to a line not exceeding one
hundrec pounds." 18 & 19 Vict. c. 119. s. 19.

^ ■!

"pWil!

■ m

950 57 & 58 VICT, c, 60.—NECESSARY FURNISHINGS. [1894.

inetcr.s, fire
engine,
anchors, &c

Equipments.

Equipment 290. — " (1) Every emigrant ship sball, in addition to any other

with com- requirement under this Act, be provided with the following; articles ■

passes, chrono- namely,—

" (a.) With at least three steering compasses, and one azimntli

compass; and
" (i.) If proceeding to any place north of the Equator, with at least

one chronometer ; and
" (c.) If proceeding to any place south of the Eriuator, with at least

two chronometers ; and
" (d) With a fire-engine in proper working order and of siicli
description and power, and either with or without such
other apparatus for extinguishing fire as the emigratiou
officer may approve ; and
" (e.) With three bower anchors of such weight, and with cal)le.s of
such length, size, and material, as in the judgment of the
emigiation officer are sufficient for the size of the shipj
and
" {J\) If a foreign ship, with four properly fitted lifebuoys kept readv

at all times for iunnediate use ; and
" {g.) Adequate ; -ins, to be approved by the emigration officer nt
the port ot cleaiance, of making signals by night.
'* (2.) If any requirement of this section is not complied with in the
case of any emigrant shij), tlu^ master of that ship shall for each offence
be liable to a fine not exceeding fifty pounds." IH & 19 Vict. c. 119.
s. 27 ; 39 & 40 Vict. c. 80. s. 21.

!■;,

lU'gulations an
to carrying of
p;U!.sengers
gcucrally.

Limit of
miniber of
steerage pas-
sengers to lie
e irried on
emigrant ships.

Kegulations as
to accommoda*

Number of, and Accommodation for, PasseiHjcrs.
{See sec. 365.)

291. — "(^O A ship shall not carry passengers, whether cul)in or
steerage passi'ngers, on more than two decks, except that cabin pas-
sengers not exceeding one for every hundred tons of the .ship's regislercil
tonnage, and sick persons placed in hosi)ital as hereinafter i)ro\i(le(l, iniiy
be carried in a pool) "'" deck-house, although passengers are carried on
two other tlecks.

" (2.) If steerage passi-ngers are carried under the poop, or in aroiiini-
house, or deck-hou.se, the poop, round-hou.se, or deck-house shall 1k' pro-
l»erly built and secured to the satisfaction of the emigration ollicer at the
port of clearance.

"(3.) If any re<iuirement of this section is not complied within the
case of any ship, the ma.ster of the ship .shall for each offence he lialileto
a fine not exceeding five hundred pounds. 18 and 10 Vict. c. 119. s. 13

292. — "(1) The number of steerage pas.sengers carried in an emi-
grant .ship shall not exceed the number limited by the regulations in the
Tenth Schedide to this Act. [Sanu- as in sec. and Act given lielow.]

"(2.) If there is on board any emigrant ship at or after the time of
clearance ii greater number of steerage pa.ssengers than the number so
limited (except as increased by births at sea), the ma.ster of the ship shall
be liable to a fine not exceeding twenty jjounds for each sti'('ra;:e pas-
senger constituting such excess." 18 & 19 Vict. c. 119. s. H.

293. — " (1) The regulations as to the accommodation for steerage
passengers in the Eleventh Schedule to this Act, relating to the constnic-

ISHINGS. [1894.

1 lifebuoys kept midy

jciigers are earni'il on

1894.] 57 & 58 VICT. c. 60.— BERTHS & HOSPITALS. 951

tiuii of passenger decks, to berths, to hospitals, to privies, and to the tion of steerage
supply of light and ventilation, shall be observed in the case of all passengers,
emigrant ships as if they were contained in this section.

" (2.) If any requirement of this section is not complied with in the
case of any emigrant ship, the owner, charterer, or master of the ship,
or any of them, shall for each offence be liable to a fine not exceeding
fifty pounds, except that the master shall .alone be liable to the fine where
te is in any such regulation expressed to be alone liable." IH & 10 Vict.
c. 119. ss. 20 to 2(5. [From which the Eleventh Schedule is taken.]

294. — " (!•) ^o part of the cargo or of the steerage passengers Stowage of
luggage, or of the provisions, water, or stores, whether for the use of goods.
the steerage passengers or of the crew, shall be carried on the upper
deck, or on the passenger decks, tinlcss in the opinion of the emigm-
lion officer at the port of clearance the sjime is so placed as not to
impede light or ventilation or to interfere with the comfort of the
steerage passengers, nor unless the same is stowed and secured to the
satisfaction of the emigration officer ; and the space thereby occupied or
rendered in the opinion of such officer unavailable for the accommoda-
tion of the steerage jMissengers, .shall (unless occupied by the said steerage
passengers luggage) be deilucted in calculatmg the space by which the
uimilK?r of steerage passengers is regulated.

" (2.) If any requirement of this .section is not complied with in the
case of any emigrant ship, the owner, charterer, or mastei', or any of
tbein, shall for each offence be liable to a fine not exceeiling three
hundred pounds." 18 & 19 Vict. c. 119. s. 29.

Provisions, Water, and Medical Stores.

[See sec. 3G5 (3).]

295. — "(1) There shall be placed on board every emigrant ship, for Supijlyof
the steerage passengers, provisions and water of good and wholesome provisions and
quality and in sweet and good condition, and in quantities sufficient to ^*"'«''
secnre throughout the voyage the issues required by this Part of this Act.
" (2.) In adtlition to the allowance of pure water for each steerage
passenger, water shall be shippetl for cooking purposes sufficient to
Mipply ten gallons for eveiy day of the length of the voyage as deter-
miued niider this Part of this Act for every one hundred statute adults
on board.

"(;i) There shall also be shijiped for the use of the crew and all oilier
inrsons on board an anq>le amount of wholesome ju'ovisions and |)ure
water, not inferior in (juality to the i)rovisions antl water provided for the
ste-rage passengers.

"(4.) All such water and ])rovisions shall be provided ami stowed away
by and at the expense of the owner, charterer, or n:aster of the ship.

" (5.) If any emigrant ship obtains a clearance without being provided
with the requisite cpiantities of water and provisions in accordance with
tliis section, the owner, charterer, or master of that ship, or any of
them, shall for each offence be liable to a fine not exceeding three
hundred pounds.

" (G.) Before an emigrant ship is cleared outwards, the eun'gration
officer at the i)ort of clearance shall survey or cause to be surveyed by
some competent person the provisions and water by this Act required to
be placed on board for the steerage pns.'-engers, and shall satisfy himself
that the same are of good antl wholesome (piality luul in sweet and good
eoudition, and in the quantities required by this Act.

952 57 & 58 VICT. c. GO.— WATER ON EMIG. SHU'S, [isoi

11!

3[ode of
carrying •water,

Provision for
touching i\t
inteniiLJiatL'
ports to tiiku
in wiiti'r.

" (7.) If the einigration oHiem- cousiilers that any part of the piovisicMh
or water is not of ii good and whole.sonu- (luality, or is not in swcii and
good condition, he may ri'ji'ct and mark the same, or the p,ickii;;(s
or vessels in whieli it is contained, and direct the same to be fortinvitli
huuled or emptied.

*' (8.) If the same are not forthwith hmded or emptied, or if iiftorbfiii"
landed the same or any part thereof are reshipi)ed in the ship, tiic
owner, charterer, or master of the shiit or any of theui, or, it' tiio
same arc shipped in any other emigrant ship, then the person eaiisinir
the Siunc to be so sliipped, .shall for each offence be liable to a lint' luit
exceeding one hnndred ponnds." IS & 15) Vict. c. 119. s.s. 31, 32.

296. — " ( 1 ■) 'I"he water to be placed on board emigrant ships as horoiii-
before provided shall be carried in tanks or casks approved by tJm
einigration ofticer at the port of clearance, and the casks siiall bu swi"i
and tight, of snllicient strength, and if of wood projjcrly charred inside,
and the staves shall not be made of (ir, pine, or soft wood, and cnch
cask .xhall not be capable of containing more than three hundred gidloib.

" (2.) If any retpnrenicnt of this section is not complied with in tiic
case of any emigrant .ship, the owner, charterer, or master of tlie slii|i,
or any of them, shall for each offence be liable to a line not excmlin;,'
lifty ponnds."

297. " If «" emigrant ship is intended to call at any intcriiH'diiiteporl
during the voyage for the pnrpo.se of taking in water, and if an en},'aj;c-
ment to that ell'ect is inserted in the nnister's bond herein-aftei uii'n-
tioned, it shall be snllieient to place on board at the port of elwiraiiiv
such supply of water as is reipiired by tiii.s Part of tiiis Act for tlii'
voyage to the intermediate port, subject to the following conditions;
(that is to say,)

" (i.) The emigration officer at the port of clearance shall apiiiovciii
writing the arrangeiueid, and (lui approval .Khidllicciiniud
among the ship's papers, and shall be e.xhibiteil at tlii;
intermediate port, and delivered on the arrival of the sliiji
at her final port of discharge to the chief oiUccr of cibtuin>,
or British consular officer, as the case may he :
" (ii.) If the K'ngth of either j)ortion of the voyage, whellicr to
ihe intermediat*' port, or from the iiitermeiliiite port totlu'
linal port of discharge, is not determined under tlii> Part
of lhi.s Act, the emigration offici^r at tlu' port of cluuiaiiir
shall declare the .sune in writing, as part of his said aji-
jtroval of the arrangement
" (iii.) The shij) shall have on board at the tinu' of elearaniTsuih
tanks and water casks, of the description by this Fart of
tliis Act recjuired, as are sufficient for stowing the (iiiaiility
of water recpiired for the longest of the aforesaid poitioib
of the voyage." IS & I!) Vict. c. Hi), s. HI.

Issuo of water 298. — " (1-) 'l"l»e master of every emigrant ship shall duiin<; tlu'
or provisions voyage, including tiie lime of detention at any place before the tcnniiiii-
diiring voyage, tion thereof, issue to each steerage passenger, or where the steeru^f pas-
sengers are (livided into messe.s, to the iiead man for the time being of wiili
nu'ss, on behalf and for the use of all ihemendters thereof, an allowanwof
piu'e water [3 (luarls tlaily], and sweet and \viiole.'*ome provisions [Set
Bee. 365 (3)] of good quality, in accordance with the dietary scidis in tlu'
Twelfth Schedule to this Act [taken from sec. (pioted bclowj, whidi ahull
have effect us if they were cuutuiued iu this bectiuii.

1891.]

57 & 58 VICT. c. GO.— DIETARY SCALE.

953

"(2.) Tlie Boju'il of Tnule iniiy, 1)y notice jmMisliod in ,iio London
Gazette, iidil to tlio dietury scales in tiio said schcdnle any dietary scale
wbii'li in their opinion contains in the whole the same amount of
wholesome nutriment as any scale in that schedule, aiul any dietary scale
50 added, inclusive of any rej^ulations relatinj^ thereto, shall have effect
as if they were containcMl in the said sche'lule as an alternative of the
ilietmy scales therein contained, and accordinj^ly a master of a ship may
isiiue provisions according to the latter scales or to any scale .so addecl,
wiiichever is mentioned in the contract ticket of the steerage passengers.

" (3.) If any requirement of this section is not complied with in the
tasL' of any emigrant ship the master of the ship shall for each offence be
lialiie to a fine not exceeding fifty pounds." 18 & 19 Vict. c. 119. s. .35.

299. "The Board of Trade, if .satisfied th.at the food, space, accommo- Power of Board
(lation, or any other particular or thing provided in an emigrant ship for of Trade to
any cla.ss of passengers, whether cabin or steerage, is su[)crior to the food, exempt sliips.
s|KicP, accounnodation, or other particidar or thing retpiired by this Part
of this Act, may exempt that ship from any reipiirement of this Part of
this Act with r<>spect to food, space, or accommodation, or other par-
ticular or thing, in such manner and upon such conditions as the Board
think fit "

300. — "(!•) '^''f owner or charterer of every emigrant ship shall Medical stores.
|rtovide for the use of the steerage [)assengers a supply of the following
things (in this Part of this Act referred to as medical .stores), namely,
medicines, medical comforts, instrunu'uts disinfectants, and other things
proper and necessary for disaises and accidents incident to sea voyages
and for the medical treatment of the steerage j)assengers during the
voyage, with written directions for the use of su(di medical stores.

" (2.) The medical stores shall, in the judgment of the emigration
ollieer at the port of clearance, be good in <piality and siiflicient in
(|iiantity for the probable exigencies of the intended voyage, and .shall Ije
limperly jiacked, and placed under the charge of the medical practitioner,
wiieii tliere is one on boani, to be used at his discretion.

" (3.) If any of the above requirements of this section is not com|)lied
witli ill the case of an emigrant ship, the master of the ship .shall for each
oifeiur lie liable to a fine not exceeding fifty pounds.

"(4.) An emigrant ship shall not clear outwards or proceed to sea
unless 11 medical jiractitioni^r aiipointed by the i-migration oflicer at the
port of clearance has ins[»ei'ted the .siid medical stores, and certified to
till' emigration ofticer that they are snllicient in <piantity and quality, or
unless tiie emigration oflBcer, in ca.se he cannot on any particular occasion
ulitaiu the attendance of a medical practitioner, gives written [lermission
lor the purpo.s*'.

"(5.) If an emigrant ship clears outwards or proceeds to sea without
Mieh certilicatc! or iiermission, the msister of the ship shall for each

iNliii

Nil

offence be liable to a fine not exceeding one hundred pounds."
Viet. c. 119, .ss. 1.% 44.

18 & 19

Dangerous Goods, and Carriai/e of Cattle. Kcgulatlons as

to carriige of
301. — "(!•) Subject to the [irovisions of this Part of this Act as to dangcrois
military stores, an emigrant ship shall not clear outwanis or proceeil to S"ods, and of
^■a, if there is on board- Se" ""

"(a) as cargo, any article which is an exiilosive within the meaning gg ^'^^ y.
of the Explosives Act, 1875, or any vitriol, lucifer matches, ^ i;^
guano, or greeu hides, or

*-*'^*'*^t^u

BacranK«sttnBi^)i.7;'H;u5}5f;K;r

.:.. l..i.-iliii

Carriage of
military stores.

95df 57 & 58 VICT. c. 60.— MEDICAL OFFICER. [1H94.

" {b) cither as cargo or Imllast, any article or numlx-r of nrtick-s
which by rcnson of tlie uature, quantity, or mode of stow-
age thereof are, either singly or collectively, in the opinion
of the cniignition officer at the port of clearnnco, likely to
endanger the health or lives of the steerage im.s.sciir'cis or
the safety of the ship, or '^

" (c) as cargo, horses or cattle or other animals mentioned in the
Thirteenth Schedule to this Act, except they are earriod
on the conditions stated in that schedule, which shall bnvo
effect as if conUvined in this section.
" (2.) If any re(piirement of this section is not complied with in the
case of any shii), the owner, charterer, or master of the ship or imv of
them, shall for each offence lie liable to a line not exceediu" three
hundred pounds." See 17 & 18 Vict. c. 104. s. 329 ; 38 & 39 c.'l7.

302. — " (1) A Secretary of State may, by order imder his hand,
authorize the carriage as cargo in any emigrant shij) (subject to such
conditions and directions as may be specified in the order) of naval
and military stores for the public service, and those stores may be carried
accordingly.

" (2.) The order shall be addressed to the emigration officer and shall
be by him countersigned, and delivered to the master of the shi|) to wliieli
it refers, and shall be; delivered up by the master to the chief ollicer of
customs at the port where the stores arc dischargi-d.

" (3.) The master shall comply with all the conditions and directions
in the order, and, if he fails to do so, shall for each offence be liable to a
fine not exceeding three hundred pounds." 33 & 31 Vict. c. 95. s. 3.

Medical Officer, Staffs, and Crew,

\_See sec. 365.]

Medical 303. — " (1-) Subject to any regulations made by Order in CoiUKil

practitioners. under this Part of this Act, a duly authorizx'd nieilical practitioner ."hall
be carried on board an emigrant ship —

" (a) where the number of steerage passengers on board esieiils

fifty ; and also
" (i) where the number of per.sons on board (including cabin pas-
sengers, oflScers, and crew) exceeds three hundred.
" (2.) A meilical practitioner shall not be considered to l>e duly autho-
rized for the purposes of this Act unless —

" (a) he is authorized by hiw to [a-acti-ie as a legally qualified medical

practitioner in .some part of Her Majesty's dominions, or,

in the ca.se of a foreign ship, in the coimtry to which that

ship Iwlongs : and

" (ft) his name has been notifitd to the emigration officer at the port

of clearance, and has not been objected to by him : anil
" (c) he is provided with proper surgical instruments to the !«atisfac-
tion of that officer.
" (3.) When the majority of the steerage passengers in any euiigraiit
ship, or as many as three hundred of them, are foreigners, any medical
practitioner whether authorized or not may, if approved by the emigra-
tion officer, l)e carried therein.

" (4.) Where a medical practitioner is carried on board an emigrant
ship he shall be rated on the ship's articles.

1 boiinl exi'oi'ils

lurd un cniignmt

I89i.] 57 & 58 VICT. c. 60.— STEWARDS AND CREW. 955

"(5.) If any requiremeut of this section is not complied with in the
case of any eniigiunt ship, the master of the ship shall for each offence
be liable to a fine not exceeding one Imndred ponnds.

"(G.) If any person proceeds or attempts to proceed as medical
practitioner in any emigrant ship without being duly authorized, or
contrary to the re<iuirements of this section, that person and any person
aiding and abetting him shall for each offence be liable to a line not
mwding one hundred pounds." 18 & 10 Vict c. 119. ss. 41, 42.

304. — "(1.) Every emigrant ship, if carrying as many as one Steerage
liiiiKlred steerage passengers, shall carry a steerage steward, who shall be passengers
a seafaring man, and rated in the ship's articles as steerage steward, and stewards,
approved by the emigration officer at the port of clearance : he shall be i^erorct'r.
employed in messing and serving out the pro\isions to the steerage
passengers, and in assisting to maintain cleanliness, order, and good
(iiseipline among them, and shall not assist in any way in navigating or
working the ship.

" (2.) Every emigrant ship carrying as many as one hundred steerage
passengers shall also carry a steerage cook, and if carrying more than
thrre hundred statute adults two steerage cooks, who .shall be seafaring
men, and be rated and a[)proved as in tin; case of steerage stewards, and
siiall be employed in cooking the food of the steerage passengers.

" (3.) In every such ship a convenient phice for cooking shall be .set
apart on deck, and a sufficient cooking apparatus, proi^rly covered in and
aniingcd, shall ]>e provided, to the safisi'action of the emigration officer
,it the port of clearance, together with ;i projx'r supply of fuel adequate,
in iiis opinion, for the intended voyage.

" (4.) Every foreign emigrant ship in whi<'h as many as one half of
tlie steerage pas.sengers are British subjects, shall, unless the master and
(illicers or not less than three* of them understand and speak intelligibly
the English language, carry, if the number of steerage passengers does
not exceed two hundreil and fifty, one person, and if it exceeds two
hundred and fifty, two persons, who imderstand and si)eak intelligibly
the language spoken by the master and crew and also the English
language : those persons shall act as interpreters, and be employed
exclusively in attendance on the steerage passengesrs, and not in working
tiie ship ; and any such ship shall not clear outwards or proceed to sea
without having such interpreter on board.

" (5.) If any requirement of this section is not complied with in the
case of !'iiy emigrant ship, the master of the ship shall for each offence
Ik' liable to a flue not exceeding fifty pounds." 18 & 19 Vict. c. 119.
ss. 38, 39, 40.

305. — "(1) Every emigrant ship shall be manned with an efficient Crow of
crew for her intended voyage, to the .satisfaction of the emigration officer emigrant ship,
from whom a certificate for clearance for such ship is demanded : after
the ticw have been passed by the emigration officer, the strength of the
crew shall not be diminished nor any of the men changed without the
consent in writing either of that emigration officer or of the auperinten-
dent at the i)ort of clearance.

" (2.) Where the consent of a superintendent 1ms been obtained, it
shall, within twenty-foiu- hours thereafter, be lodged with the said
cniigi-ation officer.

" (3.) If the emigration oflieer considers the crew inefficient, the owner
or charterer of the ship may appeal in writing to the Board of Trade,
and the Board shall, at the exiMjnse of the apiiellant, apiroint two other
emigration officers or two comjieteut parsons to examine into the matter,

iit

^j'.iissitfi'tyj Hi'

Medical in-
spection of
stpcrnge pas-
sengers uuel
crew.

Evidence of
bond.

956 57 & 58 VICT. c. GO.—INSl'ECTION BY DOCTOH. [1891.

iiikI till) unaiiiinous oi»iiiioii of tlic ihthoii so iiiipoiutod, I'xpivsstd iiiKJir
Ihi'ir liunds, Hball Ito (•onclusivo on the point.

" (1.) If any requirement of this section is not complied wilii in llic
ea.se of any emif^rant ship, the master of that .ship shall for each oiR'ncc
be liable to u fine not exceeding fifty pounds." 18 & 19 Viet. e. 119
s. 28.

Medical Inspection.

[See ,sec. 3G5.]

306. — "(I) An emigrant ship shall not clear outwards or proicwl
to sea until —

"(«) either a medical practitioner, appointed by the emigration

officer at the port of cleanmce, has inspected all tliestociagc

passengers and crew about to proceed in the ship, ami

lias certified to the emigration oflBcer, and that ollicci' is

satisfied, that none of the steerage [Missengers or ciuw

appear to be by reason of any bodily or mental disease

unfit to proceed, or likely to endanger the health or safety

of the other persons about to proceed in the ship ; or

" (b) the emigration officer, if lie cannot on any particular occasion

obtain the attendance of a medical practitioner, grants

written permission for the purpose.

" (2.) The inspection shall take place either on board the shij), or,

in the di.scretion of the emigration oificer, at such convenient place

on shoi'e before embarkation, as he appoints, and the master, owner,

or chnrterer of the ship shall pay to the emigration officer in respect

of the in.spection such fee not exceeding twenty shillings for every

hundred persons or fraction of a hundred persons inspected, as the

Board of Trade determine.

"(3.) If this section is not complied with in the case of any
eniigi'ant ship, the master of the ship shall for each offence be lialjie
to a fine not exceeding one hundred pounds." 18 «& 19 Vict. e. 119. s. il.

307. Persons for medical reasons may be relandeil. 18 & 19 Viit.
e. 119. ss. 15, 47.

308. Passage money to per.sons relanded for meilieal reasons niav
be returned. 18 & 19 Vict. c. 119. s. IG; 2G & 27 Vict. e. 51. s. 11. '

309. Before an emigrant ship clears outwards or proceeds to sea,
the master, together with the owner or charterer, shidl enter into a
joint and several bond (in the Act referred to as the master's bond)
in the sum of two thousjind pounds (five thousand if non-resident in the
British Islands) to the Crown, to si\feguard the Crown from any expenses
in rescuing ships wrecked or distressed steerage pas.sengers. IH & 19
Viet. c. 119. s. 63 ; 2G & 27 Vict. c. 51. s. 17.

310. Where an emigrant ship is bound to a British possession tiio
chief officer of customs at the port of clearance shall certify on one
part of the master's bond that it has been duly executed, and shall for-
ward the same to the Governor of the said possession, and the certificate
shall, in any court of a British possession in which the bond may 1)0
put in suit, be conclusive evidence of the due execution of the bond ;
but any such bond shall not be put in suit in a British possession after
the expiration of three months next after the arrival of the ship in that
possession, nor in the British Islands after the expiration of twelve
months next after the return of the ship. 18 & 19 Vict. c. 119. s. 01.

Ixpiv^^scd under

iLspected, as the

1894.]

57 & 58 VICT. c. 00.— PUTTING BACK.

957

311. Passengers list.*! are to bo mndc out before clearance. 18 & 19
Vict. c. 119. 8. 10.

312. Lists of additional passengers embarked after clearance are to
be made out. 18 & 19 Vict. c. 119. s. 17.

313. A penalty of 20/. was imposed on anyone attempting to gain
passage without payment, aiul any such person may be taken before a
istice, 18 & 19 Vict. e. 119. s, 18.

justi

Certificate for Clearance.

314. A ship fitted or intended for the carriage of steerage passen-
gers as an emigrant .ship shall not clear outwards or proceed to sea
until the :naster has obtained from the emigration officer at the port
of cirarance a certificate that all the requirements of this Part of the
Act linve been complied with. And if refused such certificate the
owner or charterer may appeal to the Board of Trade. 18 & 19 Vict,
c. 119. s. 11.

315. — " (!•) The master of every .ship, whether an emigrant ship or Fnciliticsto
not, which is fitting or intended for the carriage of steerage passengers, or be given fur
which carries steerage passengers on a voyage from the British Islan<ls 'l^" inspection
to any port out of Europe and not within the Mediterranean Sea, or on "^^'"P**-
a colonial voyage as horein-before defined, shall afford to the emigration
officer at any port in Her Majesty's dominions, and, in the case of
British ships, to the British consular officer at any port elsewhere at
which the ship is or arrives, every facility for inspecting the ship and
for communicating with the steerage passengers and for ascertaining
that this part of this Act, so far as ap[)licable to the ship, has been duly
complied with.

" (2) If the ma.ster of any ship fails to comply with this section, he
slmll for each offence be liable to a fine not exceeding fifty pounds." 18
& 19 Viet. c. 119. s. 10.

316. If an emigrant ship, after clearance, is detained in port for
more than seven days, or puts into any port in the Briti.sh Islands, slu*
shall not proceed to sea imtil she obtains a fresh supply of pure water,
&c., to make up the quantity required by the Act to be on l)oard.
18 & 19 Vict. c. 119. s. 50.

317. Any emigrant ship putting back after clearance is to report tlie
fact; and cause, in writing, within twelve hours to the emigration officer
of the port. 18 & 19 Vict. c. 119. s. 50.

318. — " (1.) If the owner of an emigrant ship is aggrieved by the Appeal to
rpfiisiil by an emigration officer of a certificate for clearance, lu; may '"">'* of
api)eal to a couit of survey for the port or district where the ship for ^^^'^'^i'-
the time being is in manner directed by the rules of that court.

" (2.) The judge of the court of survey shall report to the Board of
Trade on the question raised by the appeal, and that Board, if satisfied
tiiat the requirements of the report and of this Part of this Act have
been complied with, may grant or direct the emigration officer to grant
a certificate for clearance.

" (3.) Subject to any order made by the judge of the conrt of survey,
the costs of and incidental to the appeal shall follow the event,

" (4.) Where a survey of a ship is made for the purpose of a certi-
ficate for clearance, the person so appointed to mak«' the survey shall, if
so required by the owner, he accompanied on the survey by some person
appointed by the owner, and in such case if the said two persons agree

i ; !i

: -I 1

i i

t' '*'

Lr£uijiti.i;r.K.v,if;ii.Sf^

958

57 & 58 VICT. c. 00.— STEERAGE O. IN V.

[mi

Discipline on
board.

W-'i

Sale of spirits
prohibited on
emigrant
shipfl.

,!•

there shall bo no appeal to the court of survey in pursuance of this sec-
tion. 39 & 40 Vict. c. HO. s. 14.

319. — (1) If iny emigrant shi[) proceiul to sea without the ccrtificato
for clearance ; or (A) put into port tlauiaged, and leave with stccmuo
pa.ssengcrs without a proper certilieate, the shiii may lie forfeited if I'onnJ
within two years.

(2) The Board of Trade may release such forfeited ship on piiymiiu
of not more than two thousand pounds. 26 & 27 Vict. col. s. l;j,

320. Contract tickets for pas.sengers proceeding from the Hiitlsli
Islands are to bo in the form approved by the Board of Trade. IS A 1!)
Vict. c. 119. s. 71.

321 gives a summary remedy for breach of any stipulation ia a
contract ticket. 18 & 19 Viet. c. 119. s. 73.

322 imposed a penalty for failure to produce contract ticket. IS &, li)
Vict. c. 119. s. 74.

323. Penalty for altering or rendering useless a contract ticket whitli
is evidence. 18 & 19 Vict. c. 119. s. 72.

Reyulations as to Steerage Passengers.

[See sec. 365 (1) (c).]

324 gftve power to Her Majesty by Orders in Council to make
regulations for preserving order, promoting health, &c., on lioani
emigrant ships proceeding from the British Islands to any port in a
British possession ; forbidding emigration during cholera or any epiileiiiic
disease ; reducing the number of steerage passengers allowed ; and pci-
mitting the use on board of water-distilling apparatus. 18 & 19 Vict.
c. 119. s. 59.

325. — " (1) Ii every emigrant ship the medical practitioner aidodbv
the master or, in the absence of the medical pmctitioner, tiie muster,
shall exact obedience to all regulations made by any such Onler in
Council as aforesaid.

'* (2.) If any person on board —

" (rt) fails without reasonable cause to obey, or offends against, any

such regulation or any provision of this Part of this Act, or

" (6) obstructs the master or medical practitioner in the ext'ciitiunof

any duty imposed upon him by any such regulation, or
" (c) is guilty of riotous or insubordinate conduct,
that iMjrson shall for each offence be liable to a fine not exccetliu<; two
pounds, and in addition to imprisonment for any period not exceeding
one month." 18 & 19 Vict. c. 119. s. 60.

326. — " (1 •) Spirits shall not during the voyage be sold directly or in-
directly in any emigrant ship to any steerage passenger.

" (2.) If any person acts in contravention of this section, he sliall for
each offence be liable to a fine not exceeding twenty pounds." 18 A 19
Vict. c. 119. s. 62.

327 provides for maintenance of steerage passengers after arrival of
emigrant ship. [See sec. 365 (2) (c).]

328 provided for return of passage money and compensation to
passengers when passage not provided according to contract. 18 & 19
Vict. c. 119. s. 48.

329. Subsistence in case of detention is provided for. 18 & 10 Vict.
c. 119. s. 49.

sold directly or in-

gers after arrival of

for. 18 & 10 Vict.

1894] 57 & 58 VICT. c. 60.— WRECKED PASSENGERS. 959

330. A penalty for landing steerage passengers at a wrong place was
imposL'tl. Tlie liuo not to bo under 10/. or exceeding 60/. 18 &, 10 Vict.
(.. 119. H. 50.

331. Provisions in case of an emigrant .sliip being wrecked or damaged
ill or neur British Islands. 18 & 19 Vict. c. 119. s. 51 ; iiO & 27 Vict.
C.51.S. 11.

332. " If i"y passenger, whether a enhin or a steerage passenger, is
eithor taken off any ship which is carrying any steerage pa.s.senger on a
voyngf from any part of Her Majesty's dominions and is damaged,
wn'okcd, sunk, or otherwise destroyed, or if any such pas.senger is picked
lip at, sea from any boat, raft, or otherwise, it shall be lawful —

" (o) if the port to which such pa.ssenger (in this Act referred to as a
* wrecked passenger ') is conveyed is in the United King-
dom, for a Secretary of State ; and
" (h) if the port is in a Briti.sh i)Ossession for the Governor of that
pos.session, or any person authorized by him for the pur-
pose ; and
" (c) if the ijort is elsewhere, for the British consular officer there ;
to defray all or any part of the exiwnses thereby incurred." 18 & 19 Vict.
1. 119. H. 52.

333. — " (!•) If ftny passenger, whether a cabin or a steerage passenger,
from any ship which is carrying any steerage passenger on a voyage
from any port in Her Majesty's dominions finds himself without any
iitgk'ct or default of his own at any port outside the British Islands other
than the port for which the ship was originally hound, or at which he, or
the Board of Tra<le, or any public officer or other i)erson on his behalf,
has contracted that he should land, it shall l)e lawful —

" (rt) if the place is in a Bi-itish possession, for the Governor of that
pos.session, or any person authorized by the Governor for
tlie piu'pose : and

"(J) if the place is elsewhere, for the Briti.sh consular officer there ;
to forward the jmssenger to his intended tlestination, unless the master of
the ship within forty-eight hours of the arrival of the passenger gives to
the Governor or consular officer, as the case may Im, a written under-
taking to forward or convey within six weeks thereafter the passenger
to his original destination, and forwards or conveys him accordingly
within that period.

" (2.) A passenger so forwarded by or by the authority of a Governor or
a British consular officer shall not be entitled under this Part of this Act
to the return of his passage money, or to any compensation for loss of
iwssagf." 18 & 19 Vict. c. 119. s. 53; 26 & 27 Vict. c. 51. s. 15.

334. — " (1.) All exi)enses incurred under this Part of this Act by or
by the authority of a Secretary of State, Governor of a British possession,
or consular officer, in respect of a wr^jpked passenger, or forwarding of a
passenger to his destination, including the cost of maintaining the
passenger until forwarded to his destination, and of all necessary bedding,
provisions, and stores, shall be a joint and several debt to the Crown
from the owner, charterer, and master of the ship on board of which the
passenger had embarked." 26 & 27 Vict. c. .51. s. 16.

And (2) in any proceeding for the recovery of that debt a certificate
purporting to be under the hand of a Secretary of State, Governor, or
consular officer, and stating the circumstances of the case, and the total
amount of the exi)enses, is to be sufficient.

335. A policy of assurance effected in respect of any steerage passage
is to be valid.

WWT

KxpniiRcs of
rcsciie and
ronvcynnce of
wrecked
passengers.

Forwarding of
passengers liy
Governors or
consuls.

Eocovory of
expenses in-
curred in
conveying
wrecked pis-
scngers and
forwarding
passengers.

960

57 & .J8 VICT. c. 00.— EMIGRATION OFFICEHK.

[1H!)1,

336-338.— ( I .) Tlio nmstor of ovcry Hliip hriiisinp; stooniKo piwspiKrorM
from any poit not within tiu* Ah-diltTrant'iin Sen is to jrivt' in a jisi ol'
steerago imssengcrs hiouglu to I he lJritinli Islands.

339. Hii'tlis ftiiil (Icaths aro to he rcgistt'icd ns in I'mt 2 on wun-
Britisli HJiips, See ante, s. Uol.

340. lliglit of action on rontract by steerage passongor was sni'c-
guarded.

341-346 'li'ftl with tho granting of licenees to passage lirokcrs &.v
IH &, lOVit't. c. 110. ss. 615, (i7.

347(348 di'iine emigrant runner: an<l liial lie must lie iieciisiMJ-
nnd lie supplied with a badge. IH i^ 1!) Viet. e. 11!). s. 75.

349 <IealH with renewal of emigrant ruuner'H badge if jdst. IH ,^ P)
Vict. f. 119. H. 79.

350 *'iiact.t penalties on persons acting witliont licenee or ImkIit;
using badge not lawfully issued ; or employing uidicensed [lerson. IH \ I'l
Vict. e. 110. s. 75.

351 imposes penalties on emigrant ruiiner.s for certain ads ofiiii>.
eoniluct. 18 & 19 Viet. c. 119. s. 78.

352. Emigrant runner's coinmission.s and fees. Ibid. s. 80.
353 deals with frauds inducing any person to engage a steerage [wissni'o.
354. Penalty on person falsely assuming to act as agent of the lidnnl
of Trade in connection with assisted emigration.

Emigration
otflct'i's n.'d
assistants.

EmhjratloH OJfierrs.

355— "(1.) In the British Islands the Uoard of Trade, and in ii
British possession the Governor of that possession, may apjioiiit iiiiil iv-
move such emigration oHieers and assistant emigration oilicers as sciin
necessary for carrying this Part of this Act into execution, uinlcr iln'
direction of (he Uoard or Governor, as the case may be.

" (2.) All powers, funetion.s, and duties to be exercised or pcrl'oriiind,
and anything to be done in pursuance of this Part of this Act liv, tn, (ir
liefore an emigration oflicer, may Ix' exercised, iierformed, and (iimc liv,
to, or l)efore hi.s assistant, or, at any port where there is no eiiii^'tntidn
oliicer or assistant, or in their absence, by, to, or before the chief olliccr
of customs for the time being at such port, and in any such ease it sliiiil
Ik? the duty of the chief oUicer of customs to do anything which it is tlu'
duty of the emigration olliccr or bis assistant to do.

" (.3.) A person hiwfnlly acting as an emigration officer under tliis Ait
shall in no case be ])ersonally liabU^ for the payment of any iiioiicy m-
costs or otherwise in respect of any contract made, or of any legal [im
ceedings for anything done, by him in his official capacity as an tniijjiii-
tion officer and on the public service." 18 & 19 Vict ■ " Hi) ss. 7. s, [I.

} Miill'f

Legal Procrni,

Recovery of 356. " All fines and forfeitures un( .novisions of th' 'irtoftiiis

fines. Act (other than the provisions relating; |ia.s.senger .steana i imly) slmll

be sued for by the following officers ; (lii.d is to s. v.) [emigration oificcr

and chief officer of customs.]

" {d) In a British possession any person authorizeil by the Governoiol
that possession, or any officer of customs authorized hy tlu'
Government department regulating the customs in thai
possession." 18 & 19 Vict. c. 119. s. 84.

'ICEUK, [1801,

t,L' if lost. 18 He 19

ecrtiiiii nets of ini>

1894 ] 57 * SB VICT. t>. 60— COLONIAL VOYAGES.

961

357. " ^^" ^'""^ "' """'*'>■ •""<'»' >vc<i\»'ialilc liytliis I'liii (if iliiM Act in Hecovei^ nf

re«|)»>ct (if im.Hsiigc iikhicn , siilisistpiicc niomy, (iiiiimp'.s, c'()iii|H'ii.«iiition, or I'liNwage ""••

,o«is limy lit' fOK'il for iimi recovered hel'orc ii coiiit of .smiiinary jnri.s- "»''"'''''■"'•''

.lictioiiliy liny person entitled thereto, or In iiny of tlie oflleeis in'llie Inst ir,',saH\',r"i,,l

|,rrtt'(iinj,' seetioii mentioned on belinlf of nny one or more of siieh diinm^'ei.
i^erstiiis ">"' '" ""y <''i^e either l>v one or .leveral i)roee(^dingH."
IsilOViet. c. 111). H.Hi.

358 K'veH proteetion to person e.xeeutinfj tiie Act.

Siip/tlriiieiifnl.

359. ''1"' owner, in the iihsence of ii<;reenient, shall lie ullimiitely re-
.[KMisible as U'tween himself and tiie other persons rendered lialile for
ninicompliance with this I'art of the Act.

360 deals with the forms to he used and rate of fee.s for survey of

-:iiii;niiil siiips.

361 pi'ovides thnt the Hoard of Trade shall prepare alistracts of this
i'ml iif tlie Act to he supplied to th(^ masters of emifjrant Hhi|)s, who me to
lilw till 111 in n conH[)ieuous place between decks. 18 Si 1!) Vict. e. 119. .s. 61.

362 fj'^''" »'ff«'t't to hyelawH by ImrboiM' authorities of any jiort in the
Brilisb Islands from which emif^rant ships f;o. IHSi 19 Vict. c. 1 19. s. 82.

363 Jirovides I'or the exemption from survey of foreign passenger
•iiaiiicr (ir emigrant ship when the Hoard of Trade are satisfied the pro-
iwdiis of the Act have been substantially coniiilied with by an ofliciul
[orcign ."^nrvey. 39 & 40 Vict. c. 80. s. 19.

Application of Part .S. as regards Emigrant Ships.

364. "The provisions of this Part of this Act resjx'cting emigrant
^hijisslmll apply to all voyages from the Ilritish Islands to any port out
III f wro/jc and not within the Mediternineari Sea."

365, — "(1) This Part of this Act, so far as the same is applicable, Limited appl
>W1 apply to every .ship carrying steerage passengers on a coloniaj
vova;;eus defined by this Part of this Act, provided that the enactments
itiiivof relating to —
"(a) master's bond ;

"(A) .steerage passengers contract tickets;

"(f) Orders in Council regulating emigration from the British
Islands, or prescribing rules for promoting health, clean
line.ss, order, and ventilation ;
" (rf) passage brokers ;
" (e) emigrant runners ; and

"(./) posting of abstracts, and production of a copy of this Part of
this Act,
Wl not apply.

"(2.) Where the duration of a colonial voyage (as determined under
'liis Part of this Act) is less than three weeks, the enactments relating

"(a) the regulations scheduled to this Act as to the accommodation

for steerage passengers ;
" (4) medical practitioner, stewards, cooks, cooking apparatus, and

manning with an efficient crew ; and
" (c) maintenance of steerage passengers after arrival,
also not apply.

(3.) Where the duration of a colonial voyage (as determined under this
" is Act) is less than three weeks, the enactments relating to

at ion of Part
.3. of .\et to
I'uloiiial
voyages.

|!i

IPI

I : I! ■

ii'i

Put

sauo.

3 p

962 57 & 58 VICT. c. 60.— REGS. BY GOVERXOE. [1894

Modification of
pnivisions of
Titrt ;J. in
their ii|i|ili(>ii-
tioii to Hiitish
possussioiiH.

the issue of provisioos shall not, except as to the issue of wntcr, ii])])lv to
any steoni^c pas.scnjrer who has contracted to furnish his own piovisioiis ''
IM & W Vict. c. ll'J. s. 9o.

366. — " ( I •) The Governor of a British possession may by proulauia-
tion —

" (ti) (Iclennine what shall be ('"emed, for the purposes of this Part of
this Act, to be t'.ie lengti: of the voyage of any ship carry-
ing steemge passengers frt.<m any port in tliat British pos-
session to any other port ; a.^d
" (A) fix dietary scales for steerage passengers during the voyage ; and
" (r) declare what medical stores shall l)e (teemed nccessurv for tiii
medical treatment of the steerage passengers diiring ilit-
voyage.
" (2.) Every such proclamation .shall take effect from the issue thereof,
ami sh.ill hiive effect without as well as within the possession, us if
enacted in this Part of this Act.

" (.'{.) The ( iovernor of a Briti.sh possession may authorize siuii ;iprsous
as he tiiinks lit to make a like survey of emigrant ships sjiiliiig rmm limt
possession as is by this Act vefpiireil to be mach- by two or more c<iiii-
l)etent surveyors in the case of emigrant ships sailing from the Biitisu
Islanils.

" (I.) The Governor of a British po.ssession may authorize an\ coiiiiietcm
person to act as medical [mictitioner on board an cniigiant ship proficd-
ing on a colonial voyage." 18 & 1!) Vict, c, III), ss. J)7, i)S.

367. The first i)art <h'als with the power of Australuin and New Zen-
land governors as to regulations in respect t the nundiers of sliei'n<;f
passciigeis.

Then (2), '* the Governor of any British jiossession nuiy, if lie tliinl<sfit,
declare by proclamation that .ships intended to pass within IJie Tropii^
from any pnrt in such jjossession may convey steerage pas^el|l:^■rs, Kiiij;
nati\esof Aniii or Africa, after the rate of one for e\i'ry l\V('l\fsu|icrliiiiii
feet of the jiiisscnger deck instead of after the rati' spccilji'd in Uie 'IVi.tli
Stliedule 10 tilis Act."

(.'}.) " Every such proclamation shall take effect from the issue tiuivof,
or siicli other day as may be named lliereiti. and shall iia\<' t'tlVi't \villiuiii
as well as within the possession, as if it were eiuu-ted in this Pint of liiis
Act in sub>tiliition as resjiects the said ships i'or the Tenth Schuliilc Id
this Act." Sub-sec. (1) refers to steerage passengers from C(i/loii.

368 'f. ^''^^ powei' to the legislature of India to applv Pint .'t. In
Jiiilinh India. 17 .*t 18 Vict. c. 101. s. 288.

Fishing Boats.

PABT 4. is the merging of Mercliant Shipping "Fishing Boats" Ad,
(10 A: 17 Vict. c. 41), and Part 4. of 17 & 18 Vict. c. 104. By
.sec. ;i72, this Part v" the Act is not ajt|>licalile to the colonies nr
Svotlaiid.

369- Application of Part 4. is — («) to nil fi.shing Ijonts ami
to the whole lishiiig service; and partly [b) to all ti.liiiif; lionise!
2o tons tiinu'ige and upwards ; and partly (r) to fishing ImiiiIs iK'iiig
trawlers of the same tonnage and ujiwards, and where so i .vpressly pre-
\ ided, to fishing boats being trawlers of whatever tonnage. 40 iV: -17 Virt.
e. 4 i . s. ;i.

370 gives the definition of " fishing bout," " second ' iim<I,'" ""''
" \ovage." 40 it 47 Vicl. c. 41. ss. 3, 18.

fl'Tlfllil

IgM] 57 & 58 VICT. c. 60.— SEA.-FISHTNG BOYS. 963

371. Ascertainment of tonnage of a fi.xhiiig l)OHt. 50 Vict. sess. 2.
c,4.s. 2.

372. " ^l"** P'"''' of '''® ^*'* **''"'' "ot, except where otherwi.se
fj|)rtssly provitk'tl, iipply to- Scotland, or to any British possession."

373-375 refer to registry of: and rules as to fisliing boats.

376 tlt'als with discipline of : and offences by seamen an<l appren-
tices. Hi & 47 Vict c. 41.S. 28.

377 enacts that the civil right of remedy by action is to be un-
affected liy the criminal provisions of the Act. 40 & 47 Vict. c. 41.
s29.

378 deals with the application of forfeitures. 40 & 47 Vict. c. 41.

s..m

379 enacts deserters and others may be s(>nt back to their boats.
46 4 47 Vict. c. 41. s. .31.

380. Appi-ehension of stamen guilty of desertion, absence without
kve, wiii'nl disobedience, continued brei'ch of duty and unlawful com-
bination. 40 & 47 Vict. c. 41. s. 'A2.

381. Suiierintendent or |)rincipiil Board of Trade oflicer jan deal
mth^'anien who refuses to j):()eeed to sea. 40 it 47 Vict. c. 41. s. 32.

382. A .seaman who intends to ab.sent himself is to give notice to
<ki|:per. 40 it 47 Vict. c. 41. s. .33.

383- Wages of skipjjer, seaman, or a])prentice .shall accrue from day
touiiv. 10 it 47 Viet. c. 41. s. .34.

384. Facilities for proving desertion so far as concerns forfeiture of
wagis ait' given. 4(i it 47 Vict. c. 41. s. 35.

385, 386. Intpiiries as to deuth, injuries, iil-tieatment, punishment,
ami ensiiiillies in iishing boats are provided for. 46 it 47 Vict. c. 41.
w- 13-1').

387 gift's power to suijcrintendcnt to settle disputes. 10 & 47 Vict.

t.4i..s. 10.

388. Accornts are to be rendeicd by owners for the purpose of
iisctrtaining profits of Iishing boats. 5l) Vict. scss. 2. c. 4. s. 0.

389 deals with agreements for Iishing ve.s.scls in Srot/tnid.

390, 301 deal with fees payalde on engagement and discharge when
effitted 1m ivii'e a s'.iiH'rintendent : and that superintendents were to obey
theoidtTs (if the Board of Trade.

('!) Provisions applying to all Iishing Ixtats of 25 tons tonnage
ii|war(ls iipiJrenticeship and ngrwuH-nt with boys.

392. Hestriction on apprenticeships and agn-enient in the ease of
bovs iindir 1.3. 40 it, 47 Vict. c. 1 1 . s. 0.

393, Hoys under 16 must Ih' [tioperly appn>nticed : or to have proper
sgwmi'nls iM'fore iK'ing taken to sen. See 46 it 47 Vict. c. 41. s. 8.

394 orders all suiK'rintendents to give assi.stnnce in making inden-
tunsol' apprenticeships. 46 it 47 Vict. c. 41. s. 11.

395. Ai)prentieeships and agreements with boys to the sea-fishing
*rv; (■ lire to Im- made before superintendent, who is to .sitisl'y himself
tliat the Act is fuUilh'd : that the master is a lit person : that the Iwy
i» not luidcr 13, is of suiHcient health, itc., and ihat the nearest
^■latil)ll!^ or guardians of the boy assent. 46 it 47 Vict, c 41. s. 4.

3f 2

ill'!

964

57 & 58 VICT. 0. 60.— SKIPPER'S CERTS.

[1894.

396, 397 give powers to siiiMTiiiteiKlcnt in his own nivnie tn cnfdicc
by proper lej^al proceedings sea-fisliing l»oys' indentinvs or ii<j;i('(nuiit>.
46 & 47 Vict. c. 41. H. 10.

398 prohibits any persi^n from t; '.ng money for ai)prentic('siiii)s iiml
boys' agreements. 46 & 47 Vict. c. 41. s. 7.

399 deals with agreement witii seamen on trawlers of 2o tons ami
upwards. 4(5 & 47 Viet. c. 41. s. 13.

400, 401 deals with the form, |)erioil, condition, ami niode df
entering into agreements. /6/rf. and s. 11.

402 agreements bv owner, or for service of two or more fisiiiiiglionts
46 & 47 Vict. c. 41. s. 15.

403 deals with " running agreements," where the voyage averagis
less than six months. 46 & 47 Vict. c. 41. .s. 16.

404. Endorsement of engagements and discharge on running Hgrec-
ment. 46 & 47 Vict. c. 41. s. 17.

405, 406 provides for a rei)ort hehig made l)y the skipjx'i' an<l seat
to the superintendent within 48 hours of departure of composition of
crew, and re[)orts of change of crew. 46 & 47 Vict, c 41. ss. li), 21.

407. Alleratiou.s, &c., in agreements are to be attested. Ki A I7
Vict, c. 41. s. 22.

408 deals with offences as to agreement with crew ; e.//., tVaudulcutlv
altering same, or uttering false copy of same. 46 it 47 Vict. c. 41. s. I'li.

409, 412 deal with payment of wages and discharge of seamen
46& 47 Vict. c. 41. ss. 24,27.

413. Skippers and second hands must hold certificnt'^s ol com-
petency. 46 & 47 Vict. c. 41. s. 42.

414 provides certificate of competency to skii)per and .sccomi hand
may be granted by Board of Trade in same manner as eertilicatis of
comi'.tency as master or mate under second part of this Act. 16 \ 17
Vict. c. 41. s. 37 ; 17 & 18 Vict. c. 104. s. 134. See ante, p. 931.

415. Certificate of service to Im' granted when skijiper scrvi'd licfoiv
I September 1883, or second hand 1 .Inly 1888, or if a person provf>
to tlie Boanl of Trade he has l)cen well conducted on lioard liie lioats lie
has served. Sec 46 & 47 Vict. c. 41. s. 40.

416. A register of certificated skippers and second himds to lie icept
by Board of Trade and admis.sjble in evidence. 46 it 47 Vict. e. 41. s. 41.

417 provides for Board of Trade regulations as to coiivcvanee of
fish from trawlers.

:t!''i!i-

PART 5. (sees. 418 to 463) is a commingling of the I'lisscnfjcrs Ait

(18 & 19 Vict. c. 119); Merciiant Shipping Acts, 18(12 {'Jo iV.'6

Vict. c. 63), 1871 (34 & 35 Vict. c. 110), 1^73 (3(i it 37 Vict.

c. 85.), 187(i (39 it 40 Vict. c. 80.), and 1890 (53 Viet. c. !>.).

As to application to colonies, str .sees. 418 (2), 467 (5), 458 (li).

Collision
reg«lation».

Safety — Prevention of Collisions.

418. — "(1) Her Majesty may, on the joint recominimiation of
the Admiralty and the Board of Trade, by Order in Council, make

If !M! I

1894.] 57 & .'58 VICT. c. fiO.— REPT. OP COLLISIONS. 965

regulations for the prevention of eoUisions at sea, and may thereby
regulate the li};hts to l>e carried and exhibited, the fog siornnls to be
rtirried and used, and the steering and sailing rules to he observed by
ships, and those regulations (in this Act referred to as the collision regu-
lations) shall have effect as if enacted in this Act.

"(2) The collis an regulations, together with the provisions of this
Part (if this Ac< relating thereto, or otherwise relating to collisions,
ih;)li lie observed by all foreign ships within Biitish jurisdiction, and in
anv case arising in a Hritish court concerning matters arising within
Bi'itii'h jurisdiction, foreign ships shall, so far as respects the col-
lision regulations and the saiil provisions of this Act, be treated as if
they wp-o British ships." 25 & 26 Vi<!t. c. 03. ss. 25, 26.

i';. All owners and masters of ships shall obey the collision regu-
lati (2) A wilful default in this to Ih" a misdemeanor. (3) Any

damage to person or property from non-observance of the collision regu-
lations is to be considered to be occasioned by the wilfid default of
I'lnt'iiiliy the person in charge of the deck at the time. Board of Trade
to furnish a copv of the regulations to evei\ master or owner who
applies for it. 2o & 26 Vict. c. 63. s. 27.

420 provides for a sur\eyoi' of ships inspecting any British or foreign
ship, to see tliat it has proper lights and fog signals, &e. 25 & 26 Vict.
e,63.s. 30; 36&37. c 85. s. 12.

421. Local rules of navigation in harbours, rivers, or other inland
narigatiou, are saved, and to have full effect notwithstanding this Act.

422 enacts that it is the duty of one vessel tu a.ssist the other incase
of collision, to stand by until assured it is in no further need of assist-
ance, and to give each other the name of their ship: her port of registry:
and from which port and to which she is bound. 36 & 37 Vict.

c. (<o. s. 16.

423. ("ollisions are to be entered in the official log. 17 «& 18 Vict.
c. 104. s. 328.

424. Whenever it is nr.'Ao to appear to Her Majesty in Council Application
iliiit tile (iovernment of any foreign count-y is willing that the collision ot collision
reguliitioiis or the provisions of this Part oi' this Act relating thereto or ri-'pulations to
'ithcrwise relating to collisions or any of tlio.se regiilatio...'! or proxisiom "''*'K" ""P^-
-hmM api>ly to the ships of that country when beyond the limits of

Biitisli jurisdii'tion. Her Majesty may, by Order in Council, dire(;t
that those regulations an(' provisions shall, subject to any limitation of
time conditions, and quali;' itions containeil in the order, apply to the
'iiipsof the said foreign country, whether within British juiisdiction or
not, and that such ships .shall, for the purpose of such regulations and
provisions, be treated as if thev were British ships. 25 & 26 Vict. c. 63.
s. 5H.

425. A report is to be sent within 24 hours of the occurrence to the
Board of Tnide of accidents involving loss of life or of serious personal
injury, cr of injury affecting the .steamship's seaworthiness. 17 & 18
Vict. c. 104. s. 326.

426. Notice of the loss of any British ship is to be given to the
Board of Trade, 17 & 18 Vict. c. 104. s. 327; 3(5 & 37, c. 85. s. 22.

1427 deals with life-saving appliances and rules to be made by the
Board of Trade, which are to be laid before Parliament. But thes«
rulen are not to apply to Ashing boats registered under Part 4.

i^!!

'i i

ti:

II-

fir

III

iiilh

'MM

IS:>

Marking of
deck-lines.

966

57 & 58 VICT. c. GO.— DISTRESS SIGNALS.

[1894.

428 provides it shall be the duty of the owner or master ol' nvpiv
British ship to see that his ship is provided, iu accordance witii tiie rules
for life-saving appliances, with such of those apiiliances as luiviiig icgiird
to the nature of the service ou which the ship is employed are best ailapted
for securing tlie safety of crew and passengers.

429. A consultative couuuittee, to be appointed iu accordance wjtii
the 17 Sch., is to advise on the rules of life-saving appliances.

430 provided for non-compliance with the rides, the penalty being
a fine up to 100/.

431. A siuveyor of ships may inspect life-saving appliances on any
ship. 51 & 52 Vict. c. 21. ss. 3, 1, 5.

432 deals with adjiistmeut of compasses 'Vom time to time, ami
supply of hose. 17 & IS Vict. c. 104. s. 301 (2), (3).

433. No one shall place uudue weight on safety valve. 17A1>
Vict. c. 104. s. 302. See ante, s. 28G.

434 deals with signals of distress. Her Majesty in ("oiineil niiiy
make rules as to what -signals shall be signals of distress, and the sigmiis
fixed by those rules shall be deemed to be signals of distress. By mi)}-
sec. (2), any master or other person displaying signals of distress e.\(i|it
when the vessel is in distress shall pay comix-nsation for iiny lalniiir,
risk incurred or loss sustained by that signal being taken as a sijrnal ui
distress, e.ff., that help was reipiired. 3G & 37 Vict. c. ^5. ss. 20, 18.

435. Where a ship is a sea-going passenger steamer or eniignuil >lii|i
witiiin the meaning of the third Part of this Act, tlie sliij) sinill he piii-
vided to the satisfaction of the Boai'd of Trade {a) with means lor
making the said signals of distress at night, inchuling means of making
flames on the .ship which are inextinguishalde in water, or siieii otlur
means of making signals of distress as the Boartl of Trade may previoiislv
approve; and (b) with a [)roper supply of lights inextingui.siialili' in
water ami fitted for attachment to life-buoys. Sec. 2 imposes n \wm\\\
of 100/. ou the owner, and 50/. on the master, of any such ship going to
sea from the United Kingdom without being pi'ovided as above, 3'J k
40 Vict. e. HO. s. 21 ; nnd nee 18 & 19 Vict. c. 119. s. 2' .

436. The Board of Trade may direct any person appointed by tbeiii
to record any sea going ship's draught of water : and the master of evin
British sea-going ship shall upon her leaving ilock, port or liurlionr, eV( ,
for the purpose of proceeding to sea, record the ship's drauglit of \fatfr,
and extent (jf her clear side in tlie oflicial log-book, and prodiiw tlio
record when called ou to any chief officer of customs : He simll aL<«
permit the person appointed to recortl the ship's draught to enter the
ship. Sub-sec. (5) defines " clear side " as the height from the water to
the upper side of the plank of the deck, from which the deptli of Ml
as stated in the register is measured, and the measurement of the eliw
side is to be taken at the lowest part of the side. 34 & 35 Viet. c. 110.
8. 5 ; 36 & 37 Vict. c. 85. a. 4.

Marking of Deck and Load Lines.

437. " Every British ship (except ships under 80 tons register, w-
ployed solely in the coasting-trade, ships employed solely in fishing, and I
pleasure yachts, and ships employed exclusively in trading or going fi
place to place in any river or inland water, the whole or part of *' I

t I,,

mm.

1H94,] 57 & 58 VICT. c. 60.--DECK-LTNES DEFINED. 9G7

is in miy British possession), siiall bo i)orninnently nnd conspiciionsly
marked with lines (in this Act culled deck-lines), of nol less limn I'J indies
in length, nnd one inch in breadth, painted lonfiitiidinidly on eacii side
aoii(lsliii)s, or as near thereto as is practicable, and iiidiciitinjr tlu^ jiosition
of each deck which is above water.

"(2.) The ^)per edge of each of the deck-lines must be level with the
apjie. side ot the deck plank ne.\t the water way at tiie place of
marking.

" (.3.) The deck-lines must be white or yellow on a ilark <jronnd, or
black oil a light ground.

•'(1.) In this section, the expression ' aniidsliips' means liie middle of
ilic length of the load water-line us measured from the fore side <if tlie
sieuito the aft side of the .stern post. 39 A: 10 Vict. c. HI), s. 25; oli Vict.
I'. !). s. 5.

438. " The owner of every British ship procee<ling to sen iVoni
,1 port ill the United Kingdom (except ships nndi'r HO ti)ii> register,
t'liiploycd solely in the coasting-trade, ships employed solely in lishiiig,imd
|ili'asiiio yachts) shall, before the time heiein-al'ter mentioned, mark upon
eacli of her sides aniid.><hips, within the meaning of the last preceding
section, or as near thereto as is practicable, in white or yellow on .-i d.-irk
p'OinuljOrin Idack on a light ground, a circular disi- 12 inclies in diameter,
with an horizontal line IH inches in length drawn tliioiigli itsccnlie.

"(2.) 'I'he centre of this disc shall be placed at such a lexcl as may be
iipprovt'd by the Board of Trade below the deck-line marked under this
.(ct,iiml specified in the certificate given thereunder, and shall indicnle
llic inaxiiiuun load-line in salt water to which it i^hall be lawful to load
the ship.

(.3.) "The position of the disc shall be fixed in accordance MJlh the
Men used at the time of the passing of this Act by the Board of Trade,
siiliject to such alk)wanee as may be made necessary by any dill'eience
lii'twetn the position of tlu' de<'k-line marked iimU'r this Act, and the
pusition of the line from which freeboard is nuasured under llie .slid
tallies, and subject also to such modiiication, if any, tif the tables ■•ind
the Hiiplieation thereof as may be approved by thi' Board of Trade."
lifli 10 Viet. c. 80. s. 2(i; 53 Vict. c. 9. s. 1.

By suli-sec. (l) in approving any such modification the Hoard of
Trade were to have regard to any I'epreser.tation niadi- to tliem by any
corporation or association for the survey or regi.-try of shipping for the
time heing appointed or approved by t)i«' Board of Trade . for

the purpose of approving and certifying the position of the load-line.

439. Ships so loaded as to submerge in salt ^\nter the centre of the disc
indicating the load-line are to be deemed not .safe, and that is a good cause
for detention.

440 provides for the time for marking load-line in case of foreign-
going ships. That is, that where a ship pi oceeds on a voyage from the
United Kingdom for which the owner is re(|uired to enter the ship
outwards, the disc is to be marked liefore entering her, or if not praetie-
alile as soon after us may l)e. And the owner upon entering her outwards
shall insert in the form "of entry a .stutem.'ut of the distance in feet and
incbeB between the centre of this disc and the upper edge of <'acli of the
deck-lines which is above that centre. If he default in this the ship may 1h5
ilelained. (3), (4), (5) the statement shall appear in the crew agreement,
in the official log-book, and the disc so murketl shall be retained on the
Twsel until her next return to the United Kingdom. 3t) & 40 Vict.
i.«U.». 26. (3) (6).

M.ivkinp cif
hiMil-liiii'.

!»

968 57 &58 VICT. 0. 60— C"()L. SHIPS & LOAD-LIXRS

[1894.

441 provider that whori^ ii ship t'liiployctl in tin- eoasitiiij; iiaijc j^
requiivd to Ik- inarkt'd witli a ioad-liiif disc, slic shall be so niaikcii \h'U»c
proceeding to «ea from any port, and tlu^ owner is once in every 12 iiioiitiis
immediately Inifore the ship proceeds let sen to transmit to the cliii'f olHivi-
of customs of the port of registry a stulement in writing of the distaiiwin
feet and inches lietweeii the centre of the disc and the upper edge of ,.||ili
of the deck-lines «hieh is above that centre. And on any renewal (ir
alteration of the disc a stalement is to l)e sent. .'V.) ,^: 10 Viet c Hii
•. 27.

442 l>rovides a |>eiialty for olfeiices in rehit'.jn to innrking of NkkI-
line. If the disc is not marked, or if the ship is so lonch'tl as to siihuuMiri.
the centre of the disc in salt water, or if the disc is conccalcil, removiil
altereil or defaced, except lawfully done, or to escape capture hv mm cih'Iiiv,
the tine on the niasti-r of a British ship may he up to l(J()/,, and on ijic
owner a like tine. ;{}) iV; 40 Viet. ( . HO. s. 28.

443- 'lie Board of 'rra'Ie shall appoint the coiniuittee of Lloyd's
Register of British and F'./reign Shipping, or, at the option of the (mm r
f>£ the ship, any other eorjiorat ion foi the siu'vey or registry of sliippinir,
or any otiici'r of the Hoard of Trade speciidly selected hy the Hoard in
approve and certify on their liehalf from time to time the position of nnv
disc indicating the load-line, iV;e., and may appoint fees to he taken. Anil
the Boaril may make regulations determining the lines or marks to lie
used in connection with the di.sc, in order to indicate the ina.xinnia) hmil
line under different circumstances and at different sea.son.s, and flecliiriiii'
that this part of this Act is to lia\e effect as if any such line were drawn
through the centre of the disc, (ft) As to the mode of marking tlie disc.
(c) As to the mode of a|)plying for certiticutes. (tl) Re([niriiig eiitties in
log-book and copies of such entries. 53 Vict. c. H. s. 2.

Provision as
to colonial
ships with
respect to
load-linps.

Colonial S/iiji with respect to Load Lines.

444. "Where the legislature of any British pos.session by any iiiiici-
ment pro\ ides for th" iixing, marking, and certifying of load-lines on siiips
registered in thid possession, and it appears to Her Majesty the Qiiwn
that that enactment is based on the same principles as the [jiovisionsdl'
this Fart of this Act rtdating to load-lines, and is equally ell'ectivo I'm
Hscertnining and determining the maximum load-lines to which those slii|is
can l)e safely loaded in salt water, and for giving notice of the loiul-linc
to persons interested. Her Majesty in Coiuicil may declare that any load-
line fixed and marked, and any certificate given in pursuance of that
enactment, shall, with res]}ect to ships so registered, have the snnw effivi
as if it had In-eii fi.ved, marked or given in pursimnee of this Part of llii.«
Act." 53 Vict. c. n. s. 3,

445 provided that where the Board of Trade certify the laws nnd
regulations for the time l)eing in force in a foreign country ami relating
to overloading and improper loading are ei|ually effective with the provi
sions of this Act relating thereto, Her Majesty in Council may iluvii
that on a proof of a .ship of that country having coniidied with those Inwsi
and regulations, she shall not when in a port in the IJniU'd Kiiigiioui Ih>
liable to be detained for non-compliance with the «iid provii'ions of this
A "A, nor l)e liable to any fine which would otherwise arise for non-
compliance with those provisions.

(2.) provided that this .section was not to apply in the ca,se of ship^ of
any foreign cotuitry in which it appears to Her Majesty that correspond
ing provisions are not extended to British ships. 53 Vict. c. 9. s. 4.

-LINKS, fis94.

1894.] 57 A 58 VICT, c GO.— DANGEKOITS GOODS.

969

446. Diuigerous goods lire not to be iitttMiiiited to be trausiiiitted by
any ves.sel, British or foreign, without being distinctly labelled and the
natiirt' of the goods notified to the ma-tter, " dangerous goods " being
detiiieilas "aquafortis," "vitriol," " napiithii," "benzine," "gunpowder,"
■ liicil'iM' iniitehos," "nitro-glyoi-rine," " pi'troleuiu," and any explosives
irithin tiif meaning of tiie Explosives Art, 1875 (38 & 39 Vict. c. 17.).

[The term " explosive " is said to nu-an gunpowder, nitro glycerine,
rlvnaiuitt', gun-cotton, blasting powders, fulminate of mercury or of other
iiietais coloured fires, and every other substance used or manufactured with
flvimv to produce a |)ractical effect by ex[)losion, or a pyrotechnic effect.

(2.) It includes fog-signals, fireworks, fuzes, rockets, ix-rciission caps,
.leioniitors, cartridge:! and ammunition of all dcscrijitions, and every
adiiptiitiou of an explosive, as defined, and any other goods of a dangerous
iiaiiuc] 36 & 37 Vict. c. 85. ss. 23, '2J> 25, 26, 27, 28.

447 deals with jK-nalty for misdescription of dangerous goods;
iliH line may be up to 500/. /(till.

448 gives powei's to master or owner of any vessel, British or
forei"!!, to refuse to take on board any package he suspects to cont. in
diingeroiis goods ; and if brought on board without being properly iiuirked,
aD(l without notice of their contents, they may be thrown overboard
without incurring liability. Ibid.

449. Dangerous goods not properly sent may be forfeited, and
that, lilt hough the owner is not before the court decreeing the forfeiture.

450. N^one to be punished twice for the same offence. Ibid.

fMadirig of Timber.

451. 1'" ship, British or foreign, arrives between the last day of Loading of
0(tol)er and the 16th day of April in any year at any port in the •'ni''^'r.
I'liited Kingdom from any port out of the United Kingdom carrying as

(kk cargo— that is to say in any uncovered space on deck, or in any covered
«[HK'e not included in the cubical contents forming the ship's registered
lonimge — auy wood goods as hereinafter defined, the master of that ship,
aiulalso the owner if he is privy to the offence, shall be liable to a fine not
(■.weeding hi. for every hundred cubic feet of wood goods carried in con-
Iravention of this .-icetion. Provided that a master or owner shall not be
liable to any fine under this section («) in respect of any wood goods which
tlie iimster has consideretl it necessary to i)lace or keep on deck during
the voyage on the account of the springing of any leak, or of any other
(laiiiuge to the ship receivt-d or apprehended : or (A) if he proves that tlw-
siiip snilt'd from the port at which the woo<l goods were loaded as deck
laigo at such time before the last day of October as allowed a sufficient in-
tmul, according to theordinary duration of the voyage, for the ship to arrive
Ix'forc that day at the saiil port in tluf United Kingdom, but was prevented
from so arriving liy stress of weather or circumstances beyond his control.
(f) If he proves that the ship sailed from the port at whi<;h the woo<I goods
were Kmdcd as deck cargo at such time before the 16th April as allowed a
ivasonable interval, according to the ordinary duration of the voyage,
for the ship to arrive after that day at the said port in the United
Kingdom, and by reason of an exceptionally itivourable voyage arrived
lief ore that day. (3.) For the purpose of this section the expression
" wood goods," means (a) any square, round, waney, or other timber, or any
pitch-pine, mahogany, teak, or other heavy wood goods whatever, or (6)
any more than five spare .spars or store spars whether or not made,

!'Hj!|'

■) \

'i I ,1

! ■ I

iii

f !f

5 ' f i

970

57 & 58 VICT. c. 00.— GRAIN CARGOES.

180 J.

Obligation to
tnke pre-
cautions to
prevent grain
cargo from
shifting.

Precautions
against shifting
of grain cargo
huien ill port
in Mediterran-
ean or Bhick
Sea or on
const of North
America.

Notice liy
master of kind
and quantity of
grain cargo.

(IrosHcd, and fiiiiilly proj wired for use, or (r) luiy donls*, linttoiis. or Ijirht
wood goods of liny description to ti lieif;lit cxeeedinj^ flncc fict aljuve
till! deck. (1.) Nothing in this section was to allect any ve>Nl \\■\t\^■[^
comes into any port of tlie United Kingdom under stress of ucathiT or
for re[)airs, or for any other purpose than the delivery of litr chito
39 & 10 Vict. 80. s. 24. '' '

Carriage of Grain.

452. Where a gniiii cargo is laden on hoard any British siiip nil
necessary and rcasomihle precautions (whether menlioned in tliis I'art nf
this Act or not) shall lie taken in order to prevent the eari,'o Iroin sliil'tlnn.

(2.) Jf those i)recautions have not lieen taken in the case nf ni"y
Brifisli sliip, the master of the ^hip and any agent of the owiilt who
was charged with the loading of (he shi)t, or the .sending her to .-iwi shall
each lie liable to a line not exceeding 'M){,)1., and the ownei' of the sliip
shall also be liabli' to the same line, unless lie shows I hat he took nil
reasonable means to enforce the observance of this section, ami was luit
privy to the breach thereof. \',\ &. 11 Vict. c. 1."}. s. 3.

453. Where a British ship laden with a grain cargo at any jioit in
the Mediterranean or Hlack Sea is bound to ports outside the Stiaits ot
(.iibraltar, or where a Jh'itish shi|) is hiden with a grain cargo (in the
coast of North Ainvrica, the precautions to prevent the grain cargo fmni
shifting, set out in the IHlh Schedule to this Act [also m 13 iV ■< I Vict,
e. 43. s. 4] shall be adopted, unless the ship is loaded in accordance with
regulations for Ihe time being approved by the JJoard of 'i'rade, or is
constructed anil loaded in accordance with any plan ap[irovc(l liy the
Board of Trade.

(2.) If this section is not complied with in the case of any sliip,
reasonable precautions to prevent the grain cargo of that ship from Jliiftiu"
shall lie deemed not to have been taken, and the owner and niaster of \\w
ship, and any agent charged with loading her or sending her to swi,
shall be liable accordingly to a line under tiiis i'art of this Act.

(3.) Nothing in this section shall exempt a person from any liabiiitv,
civil or criminal, to which he would otheiwise be subjecl for failing to
adopt any reasonable precautions which, although not mentioned iu this
section, are reasonably re(piired to prevent grain caigo from shifting.

454. — " (f •) B<*fore a British shiji laden with grain cargo nt any port
in the Mediterranean or Black Sea, and bound to ports outside llie ^itraits
of Gibraltar, or laden with grain cargo on the coast of North America,
leaves her final port of loading, or within forty-eight hours after leaving
that port, the master .shall deliver or cause to be delivered to the British
consular officer, or, if the port is in a British possession, to the chief
officer of customs, at that port, u notice stating —

" (a) the draught of water and clear side, as defined by this Partof
this Act, of the said .ship after the loading of her cargo hns
been completed at the said final port of loading; and
" (/>) the following particulars in respect to the grain cargo:
namely, —

" (i) the kind of grain and the quantity thereof, wlmii
quantity may be stated in cubic feet, or in
quarters, or bushels, or in tons weight ; and
.... *' (ii) the mode in which the grain cargo is stowed;

.' . ". and

" (iii) the preuuutiuutt taken agaiiist 8hii'uug.

' ' ' f

1894.] 57 & 58 ViCT. c. 60.— UI^SEAWORTIIY SHIP. 971

" (2.) Tlie lua.stcr shall also delivtaii similar iu)ti<'ttto tlin proix-r offlci-r
of ciistonis ill tlu' Uiiitwl Kingdom, togotlu-r with tin- rcjiort rt!(|iiirf(l to
iH'umdf hy the Ciistoiiis Coiisolidutioii Act, 187(>, on the airival of the 39 & 40 Vict.
shii) in the Uiiiteil Kingdom. >■'• ^ItJ- '«'• oO, 51 .

" (;{,) Every such notiei' shall be .sent to the Hoard of Trade, as soon as
prai'tii'ahle, hy the olHeer receiving the .same.

"(1.) If the master fails to deliver any notice recjuired hy this section,
or if in any such notice he wilfully makes a false statement or wilfully
omits 11 material particular, he shall for each offence he liahle to a line not
exceeding one hundred pounds.

"(.x) The lioard of Trade may, hy notice published in the Lniulon
Oazcltr, 0" in any such other way as the Hoard think e.vpcdient, exempt
sliips huleii at any particular port or any class of those shii>s from thi.s
section." l.i & 11 Vict. e. 13. s. 0.

455. " For .securing the observance of the provisions of this Part of Power of Board
this Act with respect to grain cargo, any ollicer having authority in "'.".'^ "'
tiwt iH'li.ilf from tlu^ Boanl of 'I'radc, either general or special, shall ha\e ,,r,jvisi()ns a.s
l«wt'r to insi)ect any grain cargo, and the mode in which the .same is to ciirriagu of
stowed, and for that purpose shall ha\e all the powers of a Hoard of gruin.

Tmdi' inspector under this Act." 43 & 11 Vict. c. 13. s. 8.

456. " F*'r tilt' purpose of the provisions of this I'arl of this Act with Dpllnition of
rp.*|)i'ct to grain cargo — g'"'"". ^^•

"The expression 'grain' means any corn, rice, paddy, pulse, seeds,
nuts, or nut kernels.

" The expression ' .ship laden with j^rain cargo' means a ship carrying
a cargo of which the portion consisting of gi'ain is more than one
third of the registered tonnage of the shij), and that third shall be •

computed, where the grain is reckoned in measures of r ipacity, at
the rate of out! hundred cubic feet for each ton of registered tonnage,
and where the grain is rcekoiu'd in measures of weight, at the rate
of two tons weight for each ton of registered tonnage." 43 & 44
Viet. c. 43. s. 10.

Unseaioorthy Ships.

457. — " (1.) If nny person sends or attempts to send, or is party to S«ndmg un-
bending or atteini)ting to send, a British ship to sea in hucIi an ""sea- ^f'|^°' ^^ ^
worthy state that the life of any person i> likcdy tobe thereby endangered, misdemeanor,
W shall in respect of each ulVcnce be guilty iii a misdemeanor, unless he
proves either that he used all reasonable means to ensure her being sent
to sea in a seawoithy state, or that her going to .sea in such an unseu-
worthy .state was, iimh'r the circumstaiu'es, reasonable and ju-itifiable, and
for the purpose of giving that proof he may gi\i' evidence in the same
manner as any other witness.

"(2.) If the inastei' of a Uritish ship knowingly takes the same to sea
ia such an unseaworthy state that the life of any person is likely to be
tiii'R'by endangered, he .shall in respect of each offence be guilty of a
mi,s(lemeauor, unless he proves that her going to sea in such an unsea-
worthy state was, under the circumstances, reasonable and justifiable, and
for the puriMJse of giving such proof he may give evidence in the same
manner as any other witness.

" (3.) A prosecution under this section sliall not, except in Scotland, be
instituted otherwise than by, or with the consent of, the Board of Trade,
or of the Governor of the British possession in which the prosecution
takes place.

i|,

i ■ f

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ill

lli

1 I

972

.•57 & 58 ViCT. c. 60.— DETAININT, SHIP,

[1S94.

" (4.) A iiiisdrini'iinoi' iiiidi'i- lliis s»>ctioii simll not In- piniislinblc upon
smninnry ronviction.

"(5.) This sfdioii sliiill not ujiply to any sliip fin|)loyi'(l cxclibivelv
in trading; or goiii}; from placf to plact' in any y'wcv or inlniiil water df
which the wholo or partis in any JJritisii possession, " •< I iV ,'{,j \ k t
c. 110 s. 11 ; 3J) it 10 Vict. c. HO. s. 4.

458. An olilifjation was placed on the shipowner ami crew to use nil
reasonable (dl'orts to secure scawortliiness. {It) Same as {'>) hIkivc,

459. Wliert; a Miilisli ship liein,'.^ in any port in the I'niiid Kini'ddni
is an unsafe, ship hy r<'asoii ol the del»!cti\c eonthtion of her luill, I'liiiji,.
ments, nineliinery, or iieeause of impro]ier loadinj; or o\crl(i!i(liii(r, mhl
therefore unlit to |)roceed to sea without > 'rions <lan/{er to liiuii.iii life
she may be provisionally dealt with as follows: — {a) Tlic Hmnd uf
Trade may ordei' an unsafe Uritish ship (o lie detiiincil I'di- ii,,.
purpose of lieinji surM-yed. (h) When detained flurc >li;ill he ^iivcd
on the nuister a written statement of the ^^rounds of deienlion. (c) Tlic
EoHi'd of 'I'rade on receiviiif;' the report may order the, vessel in 1,,.
relen.sed, or finally iletaineil, r)r detained only until I he ii.'ci»;iiv
remedies are carried out, or tlu^ carj^o uidoaded or icNiiiilcd.
(rf) Before the order for final detention is made, a copy ni' the updri
is to he served on master of ship, who within .seven days alier tlmt
service may ap|>eal to the conrt «( survey for the port or disirici
where the shi|» is (h'tained. (<•) Before the survey is mach' the \msWr
may require that a person .seh'cted out of the list of assessors should
actompauy the surveyor, and if they a<;ree, the shij) shall he re!ea>eil
or detained aeeordin};ly ; if they dill'er, the Board of Ti.ide niav net
RS if the recpiisition had not been math', the .same riffhl of iip|)eiil
jigainst the report of the surveyor remainiufj. (f) Wheie a ship I,'* pro-
visionally detained, the Boaid of Trade naiy at any time refer tlie iiiiilter
to the conrt of survey. (//) 'J'he Board of Trade, if sati.-licd ilwt the
.ship is not unsafe, uuiy order hei' to be I'cleased. (12.) Aiiv pei-oii
appointed by the Board of Trade as a detainino; oflieer shall Imve same
power as the Board of Trade has of provisionally detaininf; ii ship and
a])pointing a peison to survey her; and if he thinks she is not niisal'e,
he may order her ndease. (',].) A detainin"; ollicev is to report to ilie
Board of 'I'l-ade any onler made by him for detention or r(dea>e. (I.) ,\n
order detaining; the ship, provisional or linal, is to be served ns soon iis
niivy be. (5.) A detained ship is not to be released by reason of her
British register beinfjl snbsccpiently clo.sed. (G. ) Board of Trade iiiav,
with the consent of the Treasmy, appoint detaininj; olliceis, and miiv
remove the same, itc, and (7.) cletaining otticers are to have the ."uiiie
power as a person appointed by a court of survey to surxcv a ship.
39 & 40 Vict. c. 80. s. (>.

460 deals with liability for costs and danuiffcs, c.f/. costs lollowiiif;
the result. If there was no reasonable cause for the detenlion, ilien
costs and eompen.sat ion are to be paid to the sliipowuer; if il appears thiit
the ship was unsafe at the time of detention, the owner of the ship !.•*
liable to the Board of Trade for Iheii- costs incidental to the survey, '.vhich
nuiy be recovered as .salvage is. 39 &. 40 Vict. c. HO. s. 10. Stv also
33 & 34 Vict. c. 90. s. 23.

461 gives power to Board of Trade to require from persons complain-
ing that the ship was unsafe security for costs, except where complaint i«
made by one-fourth (being not less than three) of the seamen of ilip
ship and is not a frivolous complaint. 39 & 40 Vict. c. 80. s. 11.

1H94.] 57 & 5H VICT. v. 00.— SPECIAL SHTPPFNG IVQS. 973

462. The nbovp prDvL^ions as to detention, iiic nppliciihio to foreign
,ihi|is l();iilin<; iit ii IJnittMl lvin;{<l()in port, witli tii<- nioililii-iitioii tlutt
niiiii'cis to III' siTVcil on tlic <'oii-iiilai' olliccr of liic siiip's country, luid lie
ni;iv M'lcft any pcison to lu-coinpaiiy llie surveyor, and when tlit- owner
iimn'iils to the court of siii\cy llie coiiHiilar olliccr may apptiint a coni-
iH'tcMt iii'i'.soii to lie an assessor in lieu of llu' as.sessor appointed liy the
Boiiril (if Trade. .W »<: 40 Vict. c. HO. s. i;{.

463. Where in any pniceedin<;s iijiainsi a sctiinaii <ir apprentice for
tlic (ilfcnee of desertion, it is nllcycil hy the sciiinen to the nunilier of
iiiit-fourth, or, if their nunilicr cxi'ccds twenty, liy not less than ll\<'
^eaincii, that the shipis nnscMwortliy,lhesur\i;y of aship may be orderi^il
liv tiie Hoard of Trade, costs and compensation to follow tlu! results.
;i!) * 10 Viet. c. 80. s. 11 (2nd par.); M &. 3o Viet, c 110. s. 7;
;iG&37 Viet. e. H5. .s. i).

I'AliT () (sees. 404 to 491) atlopfs portions of I'arts ;{, 1, and S of
17 i<: IH Vict. e. 101. ; ;i!) A 40 Vict. c. HO. ; I.') .V; Ki Viet. c. 70. ;
5:{ i\i 54 Vict. e. 27.

464. '^ special shipping iiifpiiry into >\\i\ shippinj; casualty may he
held in h'ni/ldiit/, not only when llu^ casualty takes place on the coast
iifllie United Kiiifjdoni, hut also where a sliij) is lost in any part of tlie
world, and a witness is found in the United Kingdom. 17 & IH Viet.
c, 104. s. 432; IVJ Si 40 Vict. c. 80. s. 2!).

465, 466 deal with preliminary iiupiiry info and formal investigntioii
of sihiiiping casualties, 17 «& 18' Vict. c. 101. ss. 432-448 ; 39 &, 40
Vict. e. 80. s. 30.

467 deals with iip]iointment of assessors foi' investigating shipping
casualties and their removal finm otlice. Ibid.

468 deals with inquiry in cases of loss of life happening to or on
board any boat htdonging to a iishing vessel. And that Hoard of
Tnulf may order inquiry. Scr Ki it 47 V'^icL. e. 41. s. 45.

469. Power of Board of Trad(> to suspend or caiiccd the certificate of
Hiiy master, mate, or engineer convicted for unv olfcnce. 17 it 18 Viet.
I'. 104. s. 242 ; 25 & 26 Vict. c. (J3. s. 23.

470 gives power to the court of investigation, with tlie eon.sent of
Olio assessor, to cancel or susjiend the certificate of a master, mate, or
engineer. The decision to be statc<l in opi'ii court and a full report .sent
to the Board of Trade. 17 i<: 18 Vict. c. 101. .s. 212; 25 & 20 Vict.
c. 63. s. 23 ; 45 it 46 Vict. <■. 7(). s. 5.

471 gives the Board of 'J'rade power to cause an inquiry into the
I'ondiu't of n certificated olVicer.

472. I» Kiig/ainI and Inland tlie Iligli Court, in Scotlnnd tlie Removal of
Court of Session, elsewhere in Her Majesty's dominions any colonial master by Ad-
(Oiirt of Admiralty or Vice-Ailmiralty Court — may remove the ma.ster of mindty Court,
any ship within the jurisdiction of that court, if that removal is shown
to the .satisfaction of the court by evidence on oath to be nece.s.sary.

(2.) The removal may Ik? made on the application of any owner of the
ship or his agent, or of the consignee of the ship, or of any certified mate,
or of one-third or more of the crew of the shiii.

'■' i! 11

. :!j

I' ' ii

1. i.

1 t

i ill Ii

1. ■

^lii

974

67 & 58 VICT. p. 00.— CANCELLING CERT.

[1894.

Dclivi'ry of
certificate
cancelled or
HUiipcnded.

Power of
Board of Tnidc
to restore
certifloiile.

Authority for
colonial court

(3.) Tilt' court nmy iipjioint n now master instcml of the (iiic icninvcd;
hut wlii'i'c llio owner, njjent, or cousi^iiice of llie ship i.s within llic jmii-
diction of the court such iiu ii|ipiiinluient shall not he niatle wiliidiit tiii>
consent of that owner, aj;ent,or eousii;nce.

(1.) 'I'lie court may also make such order and retinire siieli Mciuiiv in
respect of the costs of the mailer as the court thinks lit. Srr 17 Si. IN
Vict. c. KM. H. 210; 25 & 20 Vict. c. 03. ». 23.

473. A master, male, oi' enfjineer whose ecrliticale is cm lied oi'

suspeiuh'd hy any court t>v hy the Hoard of Trade shall diiivtr lijs
ccrtilicntc —

(«) if cancelled or suspended liy a court to that couit, on (liiiiiirid;
(b) if not so demanded, or if it is (iincelicd or suspcndid hy ilie
Boaril of 'i'rnde, to that Hoard, or as that Hoard dinct
(2.) If a nuistei', mate, or cnpiuecr fail to comply wilh this vertjdii, lir
Hhnll for each offence be liable to a fine not excecdinji ol)/. 2.') & 20 Viit
c 03. s. 24.

474. Tlio Boaril of Trade may, if they tliiiih that the justice of the
casi' rccpiircs if, reissue and reliirii the cerlilicale of a mii>l('r, male, or
ongineer which has been cancelled or siisp'tided whether in llir I'liiicd
Kinplom or in a Briti.sh possession, or shorten the ♦imu for wliicli it is
suspended, or grant in place thereof a certificate of the same or iinv lower
praile. 25 & 20 Vict. c. 03. s. 23 (4).

475 gives jiower to the Board of 'J'raile in any case where luidir tlii.s
Part of this Act a formal investigation into a shi|)ping easnally or ini
inquiry into the coiidiiet of n master, mate, or engineer has been licid, to
order a rc-hearing on fiesh and important evidence, or if they siis|H'(t tluiv
has been a miscarriage of justice.

(2.) The Board of Trade may order the ca.se to be re heard eillicr liy
the court or authority by whom the case was heard in the tirsi iiislmuc,
or by the wreck commissioner, or in Iviuilautl ami Irtlitm! by tlie lli};ii
Court, or in Scot/and by the .scnioi' Lord Ordinary or any oilier jii(lf;eiii
theCoiirt of Session whom the Lord J'resident of that court nmy iipiioiiit.

(3.) Where on any such iincsligation or in(|iiiry a decision lias iit'cii
given with respect to the cancelling or susiiension of the certiiicate of u
inas;er, nuite, or engineer, and an application for a re-hearing midiT
tliis section has not been made or has bei-n refu.sed, an appeal sliiill lie
from the decision to the following courts: (a) If given in /jii/luml
or by a naval court, to the High Court ; (h) if the decision is given in
*9<"0</rtMf/, to either division of the Court of Session ; (c) if the decision is
given in Ireland, to the High Court in frelatnl.

(4.) Any rc-hearing or appeal under this s<'ctioii shall lie subject to and
conducted in accordance with such conditions and regulations as nmy lie
prescribed by rules made in relation thereto under the powers coiiliiincd
in tliis Part of the Act. 42 & 43 Vict. c. 72. s. 2.

476 deals with investigations before a stipendiary magistrate. 17 k
18 Vict. c. 104. s, 435.

477. The Lord Chancellor may appoint and remove wreck conimis-
sioners for the United Kingdom, there not being more than three at iiny
one time. And if it becomes necessary to appoint n wreck conimissioncrin
Ireland the Lord Chancellor of Ireland shall have the appoinlineiit and
power to remove that Commissioner. 31) & 40 Vict. c. 80. s. 2!).

478. — " (L) The legislature of any British possession may autlioiize
any court or tribunal to make inquiries h.s to sliipwrecks, ur otlier

Niii|i|iiii|{

I'listiiiltit's and

Ullllll't (if

IHIM.] »7 ft 88 VICT «•. no.— rOLONIAL INQriRTES. 07R

fttsimllii"* iifft'ctinj; shipM, or an to clmrjri's of iti('onipct«>ncy or niiscondiu't to mnke

on thf I'lut <»1" miislcis, iimlfs, or cn^jiiiccrM of slii|is, in tin- lollowiii;! iiii|uiru'>< into

(^■t^; llltlllfly,

"[(t.) Wlifrc a >lii|>wrt'('k or ciiMiiilly ucciirs to a Hritisli Mliip on or

lU'ar the coasts of tlu' IJiilisli |>(i>Ms«.ion or ton Hritish sliip nUictrs.
in the course ol' a vovaj^c lu a port within tlic Ilriti.sl) pos-
session :
" (A.) Where a shipwreck or cusiialty occurs in any part of th(! worhl

to u Hrili^ii siiip rej;islercil in the Hiilish possession:
" (c.) Wheresonieof Ihecrewdf a Hritish sliip wliicli hasln'en wreeketl
or to which a casualty liiis occiirreil, and who an; competent
witnesses to the I'acis, are found in llie Hrilisli possession :
" ((/.) Wlicre tlie inconipetcncy or misconduct has oceuri'ed on hoard
n ISritisli sliip on or near tlie coasts of the liritisli posses-
sion, or on lioard a Mritish sliip in the course of a V(>ya<;«^
to a port within the Hi-itisli possession :
" (r.) Where the inconi|ietcncy or miscondni'l luis occurred on hoard

n IJritish ship rc;.''istcrcd in the Hritish possession :
" (/•) When the masler, mate, or cn<j;inccr of a Mi'ilish ship wiio is
ehar'^cil with incompetency or misconduct on hoard that
Hritish ship is found in the Mritish posse-sion.
" (2.) A court <>v triliunal soauthori/.ed shall lane the sana' jin'isdiction
uvi'i' the matter in ijUestion as if it hail occui'rcd within their ordinary
juiiMliction, Itut suliject to all provisi(uis, restrictions, and conditions
wliieli would ini\t' heen applicable if it iiad so oeeuricd.

"(It.) An iiKpiiry shall not he held under tiiis sin-tion into any nmttcr
wliicli has once heen the suliject of an investipition or incpiiry and has
liw'ii reported on hy a competent «'ourt or trihuiail in any part of Her
Miijcsty's dominions, or in respect of whi<'h the ccrtincat*- of a master,
matt', (ir en;iineer has liceii cancelled or suspended liy a mual court,

"(4.) ^^'her(Mln investijjation or imiuiry has heen connuenced in tlu?
I'liitcd Kingdom with reference to any matter, an in(piiry witli refer-
(Miue til the same matter shall not lie held, under this section, in a Hritisli
|)osst'ssion.

'' (.).) The court or trihnnal Imldin/jan inquiry under tliis section shall
have the same (lowcrs of cancellin;^ and suspendin;j ccrtilicatcs, and shall
cxiTcise those powers in the same maniu'r as a couit holdin;; a similar
iiivcstijjation or inipiiry in the I'nitcd Kinploni.

" (li.) 'I'lu' Hoard of Trade may order the re-hearinjj of any inquiry
luuler this section in like nanincr as they may ordci" the rc-hcarin<j of a
similar investi<!;ation or inipiiry in the I'nited Kinj^dom, Init if an ap-
jilieation for re-hearing eitlier is not made or is refused, an a])peul shall
lie from any order or tuidinjj of the court or trihnnal hohlinj; the in(pnry
to the High Court in En<;land : I'rovided that an appeal shall not lie —
" (rt) from any order or lindin^ on an inipiiry into a casmUty affecting

a shi|) ref{islcred in a Hritish possession, or
" (/>) from a decision affectin^j the I'ertiticate of a master, mate, or
enfjineer if that certilicatc has not heen fjranted either
in the United Kin};dom or in a Hritish possession, umler
the authority of this Act.
"(7 ) The appeal shall lie conducted in accordance with such conditions
and rci;uhitions as may from time to time lie prescrihed by rules nnule
ill rt'liition thereto under the powers contained in this Part of this Act."
45 & 4(5 Vict. c. 7G. .ss. 3, 5, 0. Sic ante, 53 & 5i Vict. c. 27. s. G.

479. The Lord Chancellor may with the consent of the Treasury
(as to fees) make general rules for carrying into effect the enactments

mm^ if

III!

I . I

iini

II ■

976 ru «c 5S VTCT. c. no.— NAVAL CTS. OF TNQUmY.

[1894,

relntiiig to fonniil invostiwutioiis aiul to tho ro-liciirinj; of, or an npixal
fi-om any invostigiitioii, wuU'V this Part ol' tlic Act, and in itiuilculiif
with resppot to tliC appointinont of asst's.sors, procoilurc, iunl plncc
wlioro thfsfi iiivcstifriitions arc to lie held. 3i) it 40 V^ict. c, HO. s. ;(()

480 K'^*-'S tliP ('a.ses in wliich naval courts nmy bo sumniontd on flic
liifjli seas or abroad, cr/. tliat flicy may bo -iininnonod by nnv olliici' jn
ooniinand of any of Her Majosty's y'lip.s on any foroi<jrn station, or in the
nbsoni'o of such an ofliccr by any <'onsnlar odicor in the followinff cases:
WhencN.'i' n complaint which a[>pciis to require inmu'diate inv.'^ti^'ation
is made by the master, ccrtilicated mot)-, or o\w or more scinicn of a
British ship; whenever the interest of the owner of the ship or (nrfjoscfin
to require it; whenever any British ship is wrecked, alia" i' ..cd, or lost
at or neai- the place where that ollicer may bo; or whenever anv of the
crew of anv Ibitish ship which has been wrecked, abandoned.Or U,k{
nrriv«" at that place 17 .t IS Vict. c. 104. s. 200.

481 gives the constitution of na\al courts as not inoie tliaii live, nor
less than three mcndiers. If possilile one to be an ollicer m tjie naval
service of Her Majesty not below the rank of lieutenant, one a con^iiliii'
officer, and one a umster of a ihitish merchant ship. Hut the (ourt i^
not to include the umster or consij^nee of the >*hip to wliicli the partii-
coinjilained of or comjdainini; lielong. 17 i^ IH Vict. c. lol. s. 2t)l.

482. The functions of a naval <'onrt are to investijiate the iiimm- of
the wreck, ubundonment, or loss. And a naval court may administer an
oath. 17 & 18 Vict. c. 104. s. 2fl2.

483. The powers of the navid court are set out. It can remove liie
uinster : or ennctd the certiticate of any master, mate, or enf;ineer ; (li>.
charge s seaman ; decide any question as to waives, or lines, or forfeiiiucs
It maj exercise the powers <riven to consular oHictrs in I'arl i;i. It
may i)unisii a master or any of the ciew, for any olfence apiinst iliis Act
which is punishable in a sciuniarv wav. 17 iK: 18 Vict. c. 1(14. s<. 2(53,
2G4 ; 18 it r» Vict. <•. !>1. s. 18 ;'34 .( IW} Vict. c. 110. s. K.

484. A re])ort of all |iroceediuys f)f naval courts is to be miiI liuiiu'
to tiie Boi-,rd of Trade. 17 X 18 Viet. c. 101. s. 2«5.

485. A penalty is inqiosed on all picventing couq)lainl or obstniit-
inp; investigation to or by any na\al courts. 17 S: 18 Vict.c. lOl.s.'JCli.

Application of 486. "The provisions of this Part of this Act with regard to iiaviil
provisioHH a8 lo courts on the high .seas and abroad shall apply to all .«ea-j;oinf; ship-
imval pourtH. registered in the I'nitcd Kingdom (with the except iuu in tlieinijipiiciitidn,
elsewhere than in Srotfinn/, ol tishing boats excliisi\cly enqiloyeil on tin'
coasts of the I'nitcd Kingdoin) ami to all ships registcrt(l in n Uril'^L
posseshion when those ships are out of the jurisdiction cf their ns|H'ctivt'
GovermiuMits, and wher.' tb"y apjily to a shi)), shall apply to the o\vik'I>,
master, and crew of that snip."

(2.) For the pur|iose of the said |)rovisions an nnregistt red Hiiii>li
ship shall be deemed to have been regi.-lered in the I'nitcd Kingiloni.

487-489 ifi^c the conslitnticui of courts of snrxcv. r.;/. u jiuijic
twitting willi two assessors. 'I'he judge, any as^o^sor ol the court, iiinl
i"iy jM'rson appuinled by the judge may survey a ship or appoint iiin
comjM'tent per.son to do it; and report, and the jmlg<' is to Imvc the
same powi r as the Board of Trade ha\(' to order a vessel t(. 1n'
relea.sed or detained with concurrence of one as.s<'.ssor, and tlii' Lunl
Chuncellor raav make general rides to carry into effect this provijiioii
and as to fees, \to. .')» ^ 10 Vict. e. 80. S8. 7, 8, 9.

QUIRY. [1894

is tl> ll(^ >iClll llDIIIC

\m.] 57 A .W V!CT. (!. HI) — DLVttY. GOODS : FKEIQHT. 977

490. Scientific referees. If tin- Houi'd of Trudo ooiiHidcr au Hp|)tiul
iiiiiLOiui of Hurvfty involvo.s ii <|ii(>stioii of const nictiou or doHigii or of
^iciitilii' <tiHiciilty or important principle, tlicy may refer Kie matter ta
iiie or more out of ii list of sitientific referees approved by a Se(;retaiy
iifStutc. The selei'tion may lie made by tlic Board of Tradtj and the
uppellant ; or if they differ, l)y a Secretur^- of State ; an<l thereupou
ihe api)eid is to be determinwl by the scientific referee or refei-ecs, who
,n< to hate the same jiowers as the court of survey. 39 & 40 Vict.
t SO. s. 15.

491. "^^^ Treasury is to appoint what paymput» are to be made to
aiiv wreck commissioner, jmlge of a court of survey, assessor, registrar,
iiifntitie referee, or uuv other otHcor iippointeil. 39 & 10 Vict. c. 80.
S.39.

I'ART 7 (sees. 492 to 501) — Delivery of Goo(h and Lien for

Freight.

492. The interpretation of terms used in this Part an; given. See
25 it 2(5 Vict.c. 03. s. 06, and add '* wharfinger" and " warehou.seman."

493 giv*'!* I>ower to shi])owner to enter and land goods on default by
«mvv of goods to do so. 25 & 20 Vict. c. 63. s. 67.

494. I !■*' g<>o<ls, though landed, an> to continue subject to a lien for
might if shiitowncr gives notice to that effect to warehous<'man. 25 & 26

Vict. c. «3. ». 68.

496 provides for discharge of lien. 25 &. 26 Vict. c. 63. ss. 69, ''0.

496 gives provisions as to deiKi.sits by owners of goods of the sum
ilaiiiuKl by the shipownei, and us to notice within 15 davs to retain it.
25&26 Vict. c. 63. 88. 71, 72.

197, 498 •'<"«• with sale of goods by wareliousemen and application

III pMHtrds. 25 it 26 Vict. c. 03. ss. 73, 71, 75.

499 gives to the warehousenuin a right to rent : aiul also at the
n\n\>f. (if the owner to do a things necessary for pro[H'r custody and
I'rcscrvation of the goods. : \ 20 Vict. c. 03. s. 70.

500 cxoiicnitcd warehouseman from taking chaige of any goo<ls
irhicli lie was not liable to take charge of if this Act had not pa8s<'d. Nor
;>lii' iMiuiid t" see to the validitv of any l:-i ulnied by any .shiiK)wner
iinilir ilijs Part of the Act. 25 \ 2(5 Vi-.-t. ■:■. 'j3. s. 77.

501 ^av'.d the powers given under local Acts toany harbour authority,
to 2') A 2(i Vict. c. 63. s. 7H.

I'AR'I' S (sees. 502 to 5(tt»). See Part 9 of 17 & 1« Vict. c. 101.
Hv sec, 509 this Pari of this Act cvtends to the whole of Her
Miijcsty's dominions unless the context otherwise rv ,uM'es.

lAnhiliti/ of Shipowners.

"•02. liiniitation ot shipowner's liability for damage to goo«ls; e.g.
fhirt'it lii;p|)eus without his actual fault or privity, where lost by fire;
I where the gojils are gold, silver, diamouds, Sic, the tru»' nature of
"liicli have not been declareil to the owner or shipiwr, ai'c lost or
ilnnmgoil by robWry, embozzleineut, or secreting thereof. 17 & IH Vict.
' 101, s. 503.

S 2340. 3 Q

m'\

iiiiii

HI i:

978 57 A 5H VH'T. e. OO.— LIAHILITY OF ()W\E1{ , is<i|

503. liimitfltion of owner's liiibility in ''crtiiin chwh ol l()>s of iji,,
injnr}, or (Ininngt'. 17 tt IH Viol. <•. i(H. ss. oOJ, TjOCi ; 2") iV 25 Vict

l'i(Wt'rnfCour,8
to CDUMillilnto
(■iHiniH iiji;nii)St
owners.

c. 03. s. 51.

504. " Wl ro nny liability is nllogo'l to have boon inctnicd liy ti„,
owiior of a Urilisli or i'oroif^n Hliip in nsiwct of loss n'" litV, piiMPiini
injury, or loss of or damage to vc^ssi'l or goods, and scvcnil cljiiiav. ,,1,.
mndo and npprehondcd in resj)oct of that liability, then the owik r niav
apply in Enqland and Ireland to the High ('onrt, or in Scotlaiid Ut the
Conrt of Session, or in a TJritish possession to nny ooniiM'tont ((nut, iiii<|
that eoin-t niny doterniino the amount of the owner's liability, and in;iv
distribute that amount ratoably among the sevenU clainianis, juid niav
stay any prooeetlings ponding in any other conrt in rehition to the siiiur
matter, and may proceed in such manner and subject to such r('j:iiliitiiiiih
as to making persons interested parlies to the proceed iii;:s, iiml us i,,
the exclusion of any claimants who do not come v.-itliii Minin tiis'p
and as to re(|uiring security from the ;:■.". ner, niul is |i ,.;imii(>iiI (irim
costs, a.s the court thinks jus;." 1/ Si 18 Vict.c KM. s. 51 1.

505. All sums paid on account of damages in respect of \vlii( h ilio
liability of owners is iimit<>d, and all costs in relation fluM-eto, niav !»■
brought into account among part owners of the s.'une slii|), I7 ,1 n
Vict. c. 104. s. 515.

25 1^ :•(!
. I'of tlio

506. Insurance against liability of owner not to be inv.
Vict. c. G3. 8. 55.

507. J'l'*' iiassongers li.st, in respect of lo.ss of life (fee
pa.ssengers on l)oard ship. 25 & 26 Vict. c. 63. s. 50.

508. Nothing in this Part of the Act waste lessen the iialiilitvof tlic
master, &c., he being also part owner ; or to extend to any Hrilish ship
which is not recogni.sed as such within the moaning of the Act.

509- This Part of this Act shall, unless the context othcrwi.sc re-
quires, extend to the whole of Her Majebty's dominions.

PART n (sees. 510 to 571) is taken from 17 i^ IS Vict. c. 101. (I'ait s,,
18 & in Vict. c. 91 ; 25 &. 20 Vict. c. 03. ; 35) it 10 Vict. c. SO. ; am!
40 and 41 Vict. c. K].

Wreck and Salrage. — Vessels in Distress.

510. The definition f)f ** wreck ' and "sahage" is given.

511. Designates the duty of the receiver of wreck where the \csmI i>
wreckocii, stranded, or in distress on or noiu- the coasts of the I'liitiil
Kingdom. 17 »t 18 Vict. c. 104. s. 441.

512. Power is given to the receiver of wreck in case of vessels in
distress to denu»nd a.'-sixtancc from any person.^' or master of any ve-.*!
or carts, Ac, near at hand. 17 it 18 Vict. c. 104. s. 112.

513. Power is given to all persons to pass over adjoinin;: land* tr
the purpose of rendering assistance. 17 A 18 Vict. c. 101. >. IKi.

514. Power is given to the receiver of wreck to suppress |iliui(leiaiiii
disorder by force. 17 & 18 Vict. c. 104. s, 144.

515. Liability of inhabitants for damage in case of a vessel piiMidnHi
'llie IJiot (Damages) A« I, 188(1, .s. 0; 1 7 A' IS Vict. c. 101. s (77

1 1)0 inv, ■ 25 & :'(!

to su|)|)ri'>siilnnilii'aiiii

IS94.] 37 A 58 VICT. e. (50— CLAIMS TO WRECKS. 979

516. J ''*^ l)owor.s of roccivcr of wrock in hisiibsenceiiiftj' beexei'ci.SiHl
hy tluMiliief olHcor of (Mistom.s, prinuipal olllecr of coastguard, officer of
ii'ilttiKl rcveinio, sliorir J.l*., or commis.sioiitHl ollicer, imvui or inilitury ;
ami tLey becoinu agent or agents for the receiver. 17 & 18 Vict. c. 101.
s. 445.

517 jirovides for examination in re.'^pect of ships in distress by
ni'oivt r of wreck or other per.son acting for liiui us soon as may bo after
tliecasimlty and making a rei)ort to the Hoard of Trtule ami Lloyd's.
i; A 18 Vict. c. 104. s. 448 ; 39 & -40 Vict. c. 80. s. 31.

518 pronsion as to dealing with wreck uiund iu the United Kingdom.
IJ & 18 Vict. c. 101. s. 450.

519. A. |M'nalty for taking wreck at time of ca.sualty is im^Kised.
\lk 18 Vict. c. 104. s. 44:{.

520. Whoii a receiver takes possession of any wrecik he shall, within
ifi Immiis, give notict! of wrtick at tlu; nearest custom house, and the
viilucol' the wreck. 17 h 18 Vict. e. 104. s. 452.

521. The owner of wreck is entitled to have it delivered to Inm, on
liiviiig silvage fiH»s, &c. ; and in the ease of a foreign ship, in absenc*; of
till' mviier, i^c, the consular officer of that country is, as to custoily of
ihe ^'ooiis, to be deemed the owner. 1 7 & 18 Vict. c. 104. s. 470 ; 18 & 19
Vide. 91. s. 19.

522. hnmediiite sale of wreck by ivceiver in ci-rtain cases allowed
miliT,*'.//., if un<li'r 5/. : if perishable : or if not of sidlicient value to pay
furtlu' wmehousing. 17 & 18 Vict. c. 104. s. 45.'}.

523. Iter Majesty and Her Royal .suece.s.sors are entitled to ail Uiffhtofthe
iiiii'liiiiiiL'il wreck found in any |>art of Her Majesty's dominions, except Crown to
iiiplacis w.'re Her . 'ajesty or any of Her Royt.l predecessors has guiuted
liiimy other person this right to that wreck,

524. Notice of unclaimed wreck is to Im' given to admirals, lonis of
ill'- inuiior, and other jjcrsous entitled. 17 & 18 Vict. c. 104. s. 471.

525. If not claimed within one year, the unclaimed wreck is to 1h)
ilis|K)s('(l of; if claimed Iv admiral, vice-admir.-il, lord of the manor,
kt\, mill the title is proved, it is 1>) be delivered to that person. If not
(liiimcd as al)OVe, then it h to Ik* .sold, and the proceeds after jmying all
vliiiins liiereon paid over for the benetit of the Crown, either to the
Diit'liy of Lancaster or IJuchy of Cornwall, or, if nut claimed i)y tlicse
ilmliics, (luring life of Her Majestv, to Men-antile Marine Fund.
17 & 18 Viet. e. 10-4. s. 475 ; '25 A 'id Viet. c. (ili. s. .W.

526 ^ives tlu> mode by which di.>.put«s as to the title to unclaime('
witrk limy be settled, either in a sununarv wa}, as in the cas(> of sidvage,
will the ('ourts. 17 & 18 Vict. c. 104. ss. 47-^ 47:1.

527 provides that (lelivcry of unclaimed wreck by receiver is lu.t to
|iivjiiiliic liny other jHrson's title. 25 & 2G Vict. c. 03. s. 52.

528 {jives power to the B<Hir<i of Tinde to piucluise rights to wivck.
l"i^ 18 Vict. c. U!4. s. 47-;.

529. No admiral exercising Admiralty jurisdiction is, as such, to

liiiilviv with wreck exeei't as auflioiised by the Act.

530-534 provi<le for remo\al of wrecks by Harbour or i.'onservuncy
nutlicirity if nny \ csscl is sunk ; .stranded : or abandoned n\ any hikrl)our
"flitlal waters u/ider tlieir control and also by (sec. 531) lighthouse
iiiilliuritit ,-. If any ipietition as to who is to do the work ari.'ics between

3q 2

uiiclaiineU
wruck.

lii

iiil

i > I !

t (

iur

I if

IPs

if.

llli ' « '•

Mi-

980 57 A 5S VICT. c. tH).— REWARDS SAVINW l.IFK

[mi

these aiitlioritiPH (sec. 533) tlio Bonnl of Trade i-* to diKjidc. And tlicsc
jiowcrs nn> to lie in ndilition to nnv otiior iiowors {{ivcii lor ti iike dliitct
l.y till- Act, 40 i<l 41 Vict. e. 10. 'ss. 4, 5, 0, 7, 8.

535-537 provide for punishment of offenee.s in respect of tiikiii"
wreck to foreign port, interfering with wrecked vessel, impeding ivcciM.r,
secreting wreck, or when receiver susiiects wreckage i: secreted. 1" & is
Vict. c. 104. 8S. 479, 478 (2) (3), and 451.

538, 539 tlfttl ^vith marine store dealer. He is to have his ntimc
and trade painted on his shop, and keep proper books. 17 «fc 18 Vict
c. 104. s. 480 (1) & (2).

540, 541. Marine store dealer is not to pnrcha.se from persons undti
sixteen ; not on any pretence to cut u|) cable or such like article extw il-
ing live fathoms in length without a written iiermit ; and to obtain «
permit to do so must make a declaration of how he acquired the tii'le
Ac, before a .I.P. 17 & 18 Vict. c. 104. ss. 480, 481 (3) (4).

542. The permit to marine store dealer to cut up cable, &c., must lie
advertiw;d before dealer proceeds to act thereon. 17 & 18 Vict. c. lOt
8. 482.

543. Every manufacturer of anchors shall mark them with his niiiiii'
or initials and a progressive number. 17 & 18 Vict. c. 104. s. -183.

Sdlvnr/e — Heinird for saving Life all orcr thv World, if from
Jiritish Ship or Boat.

Salv'^e payable 544. "Where services are rendered wholly or in part within British
for K ving life, waters in saving life from any British or foreign vessel, or elsewhere in
BJiviiig life from any BvjMsh vessel, there shall be payable to the stilvdi
by the owner of the vessel, cargo, or apparel saved, a reasonaide amouni
of salvage, to lie determined, in case of dispute, in mann<>r hereinaftii
mentioned.

" (2.) Salvage in resiiect of th(^ preservation of life, when payable hvthe
owners of the vessel, shall l>e payable in priority to all other claims lor
salvage.

" (3.) Where the ves.s*-!, cargo, and apparel arc destroyed, or the value
thereof is insuificient after payment of the actual expenses ini'iirnd tn
pay the amotuit of sjilvage payable in respect of the prtscrvation nf
life, the Board of 'I'rade may, in their discretion, award to the salvor (ml
of the Mercantile Marine FuikI such sum as they think lit in whole or
part satisfacition of any amount of salvage so left uni»aid." [ 1 7 & 18 Vid.
c. 104. ss. 458, 459. ' Extended by 24 & 25 Vict. c. 10. s. 9 to salvage
from any British ship or boat tcheresoever rendered ; and if salvage from
foreign vessels a reward is to l)e given, if service performed in Britiih
waters.]

Salvigeof lite 545, "When it is made to apjM'ar to Her Majesty that the
from foreign government of any foreign country is willing that salvage shoiihi !»'
voKsels. awarded by British courts for services rendered in saviuf,' life from

ships belonging to that country, when the ship is Iwyoiid the limits of
British jurisdiction. Her Majesty may, by Order 'n Council, ilireet lliat
the provisions of this Part of tlie Act with reference to salvage of lile
shall, subject to any conditions and qualifications contained in the onKr,
apply ; and tho.se provisions shall accordingly apply to those services as
if they were rendered in saving life from ships within British juiisilie-
tion." 25 & 26 Vict. c. 63. s. 69.

INU l.IFK. [1894,

the llmhl, if fn

li^flj ] 57 * 38 VKT. c. «().— CLAIMS TO SALVAGK. 9S1

546 I'rovides on salvnj^e of cargo or wreck, for compensation to nny
iiersoii rendeinng assistance other tlian the receiver. 17 & 18 Vict. c. 104.
5. 458.

547 provitles for determination of .salvajje disputes, whether of life
iriiroperty. That if not .settled by agreement, arbitration, or otherwise
jhiill bt-' determined summarily in c^Lse.s — (a) where [mrties consent; (6)
tthcre the \ahie of proptM-ty does not exceed 1,(XX)/. ; (c) in any case
where tlie amount claimed does not exceed in Great Hritain 300/., and
in Ireland 200/. Subject as aforesaid such disputes shall 1ki determined
liy the High Coint in {"hufland m\i\ Ireland, or in Scotland the Court
of Session; but if the claimant do«'s not recover moiv than 300/. in
CiTtat Britain anil 200/. in freland, then hi; is not to have his costs,
iinles.s the court certifies for them. (4) If the dispute is determined
Miiimarily in England i; is to be determined by a county court having
.iilminilty juris liction, in Scotland by the sheriff's court, in Ireland
hv two justices, or a stii^ndiary niagistnite or recorder of any borough
hiiving a recorder, or the chairman of quarter sessions in any county.
1/& !H Vict. c. 104. ". 40C.

548, Disputes as to salvage which ute to be deteriuineil summarily
shall— (rt) where the disputi- refers to ..alvage of wreck, be referred to a
toiirt of nrl)itrators having jurisdiction near the pliice where the wreck is
fuuiul; (6) where the dispute' relates to sah age in case of services rendered
luanv ves.sol, or to the cargo, or apparel, or in '..iving life therefrom, be
refeired to a court or arbitrators at or near tin- place wlic-re tlie vessel is
iving, or at or near the port in the United Kingdom into whicli the
vessel is first brought after the occurrence. 17 & 18 Vict. c. 104. s. 4'".').

549 provides for a right of ap[)eal to any jjcrson <lissatisfied with a
summary decision in Great Britain in like manner as in the case of any
other judgment in an Admiralty or iiai'itime cause of the county court
and sheriff's court ; in Ireland to the High Couit, but only i!" the sum
in dispute exceeds 50/. an«l notice given within 10 days. 17 & 18 Vict.
c. 104. s. 464.

550<lenls with arbitrations in, and appointment of, justices in Ireland
by whom jurisdiction in salvage cases shall be exercised ; and tbey are
10 be iiHined by the Lord ( Jhancellor of Ireland.

551 (''"uls with valuation of property by a valuer api)ointed by the
receiver if there is a dispute as to salvage. 25 & 26 Vict. c. 63. s. 50.

562, Receiver may detain the ship and property liable for sjdvagi! due
for assistance or in saving life: or relea.xtthe ship, &c., on security Iwing
given: or. if the claim for sidvage exceed 2001. the; courts may decide any
i|Uesti()U tts to sufficiency of the security. 17 & 18 Vict. c. 104. s. 468.

553. Receiver may sell property known to be detained where amount
notdisputc'd and not imid within 20 days after the amount is due. Where
thcimount is disputed, but no apixud lies from the first court, and j)ay-
nieut is not made within 20 days after that decitiion ; where ajjpeal lies, but
nn proceedings are commenced for an appeal, nor imyment made within 20
•lays of the decision of the first co-trt. 17 & 18 Vict. c. 104. ss. 469, t/O.

654. "Where services for which salvage is claimed are rendered either Agreement a-i
hy the commander or crew or par) of the crew of any of Her Majesty's to wlvRRe.
>hips, or of any other ship, and the salvor voluntarily agrees to abarulou
Wslieii ui)on the ship, cargo, and proiM-rty alleged to l»e sidved, then upon
the master enteiing into a wi'itten agri-cment, attested by two witnes.ses,
to aliide the decision of the High Court in England, or of a Vice-
.Vdmlnilty Court or Colonial Court of Admiralty, and thereby giving

i^^^^

i *
1

! ' ,

' i

..iJrauciuM!, .■

M';

ll!'

t \

^H2 57 & 6H VICT. C-. 60.— SALVACE BY H.M.'s SH I l>S. | is!)|,

Bcciirity in that bohalf to an amount ngrood on hv the |mrtics to ii,,,
agrci'nicnt, that agrccnu-nt shall bind the ship, ami tlic cariio mikI Ini-rlit
re»|K»etively, and the n'S|Krtivi' owners of the ship, vnvfii), ami licii'lu
und tlu'ir rospcotivi' heirs, executors, and atlininislrators I'ur ilnsih,,,,,!
which may be adjudged to Itc jmyai)le in res[M'et ol' tlic siiip, imijo
and freight resiwetivly to the extent of the security given.

" (2.) Any agreement made untlerthis section may l)e mijudie.ilcd on ^uhI
enforced in the same manner as a bond executed under tlic |iniM>.i,,i|s ,,1
this Part of this Act relating to sjdvage by Her Majesty's siiip> ; iiiul
on any such agreement In-ing made tin; salvor and llie nin^ttr sli.iH
res|)ectively nuike the statements re<piired by this part ol this Ad lo !«■
made in the case of the liond, lint tiieir statenu'nis need not Ih' on (miji
(3) 'Die salvor shall transmit the statements made, as soon as iMactidiliJc,
to the court in which the agreement istol)e udjndicated upon." 17 \ iM
Vict. c. 104. s. -1U7.

555. Where salvage linally awarded for service rendered in the riiitcd
Kingdom is under 200/., and several [ktsous claim to jiarticipatc in it,
the jH>rson liable to pay, may pay the sum to the receiver, who wiil <;ivi'
him a certificate of discharge, and the receiver shall distribute auonj; iln'
persons entitled to the same on such evidence and in such sinnc^ as |||.
thinks fit, or retain any money to which any ab.sent person appinrcil to
be entitled : and the receiver's decision is to Ik- tiiuil and conclusive.
17 & IH Vict. c. 101. sw. mi, 407.

556. " Whenever the aggregate amount of sidvage payable in rcsiHit
of sidvage s«'rvi«'e renden-d in the Ui»iled Kingdom has Ihcii llimilv
ascertained and exceeds 200/., ?nd whenever the aggregate nnionnt nf
salvage payable in res|M'ct of stdvage services rendered elsewhere lidslicfM
Anally ascertained whatever that amoimt nm;. b«', then, if any (liiny or
dispute arises as to the apportionment thereof, any court having Admiralty
jurisdiction may cause the sanu- to Im- apportioned amongst the |Mis(in>
entitled thereto in such nuimier as it thinks jtist, and nniy tor tiint
pur|)0.se, if it thinks fit, appoint any jKrson to carry that apportionimnt
into efifect, and may ompel any person in whose hands or under ^\•lu)^;■
control the amount may 1)e to distribute tlu' same or to bring tlie siiiiie
into court, to Ih- there tiealt with as the court may direct, and nniy lui'
the pnrj)o.>»e8 aforesaid issue such proces.st-s as it thinks tit." 17 & if* Viit.
c. 498.

Salvage by Her 557. Where salvage services are rendered by any siiiji lieioii;;iii;; ii'

Migesty 8 Bhipb. jj^^ Majesty no claim shall be allowed for any "loss caused to t!mt siiip

or her stores, &c., by reason of th<\s»' .services, und no claim lor silMi^t

services by the commander or c"»'W shall 1h' linally adjutlica cil iipoii

unless the consent of the Admiralty to the piusecution is provei .

558. "Where services are rendered at any placo out of ili<' limit-ot
the United Kingdom or the four seas adjoining thereto, by tin- <'<iiu-
niunder or any of the crew of any of Her Majesty's ships in s vin;.' . my
ves.sel, or eiirgi. Mr propertv belonging t" a ves.sel, tln' vessel, i ujio, or
proix>r(y alleged to Ix stived shall, if the sid\or is juslitie<l I'V tbi'iir
cumstanct s of '.le ca-e in detaining it, be taken to some |H»it wlien lliriv
is a consula officer, or a Colonial Court of Admiralty, or a Vifi .Vd-
miralty Cou t .

" (2.) Ti.e sjdvor an<l the ma.ster, or other |HTson in charge ol the vcs^il,
cargo, or propertv s-tved shall, witliin 2-1 hotu's after arriving at tlif ikhi.
fcacli deliver to f\ie consular officer, or judge of the Colonial ('"ar* "'
Admiralty or \ ice-Admiralty Court, as the ease may 1m', a !?fateni( ni nn
oath, specifying so far as jiossible, and so fur as those ijarticulars up

Apport ionmont
of siilvAKO by
AdmiraRy
Courts.

,'sSHIlN. jisni.

ol' llic slii|). wirjio,

\m.] 57 fcSS VICT. e. 00.— BOND FOH SALVAfiE.

083

a|i|iliciililc-, till' imrticiiliirs set out in llu' Ist |»arl ' ol' llic liltli Sclu'diilp "

lotlii!* Alt : Hiul also in tlio ciisc of u iniistcr or otliiT |M'r.foii his williug- *' .

iie!».s to exiH'uto a Iwnil in the form, so fur U8 circuuistunccs will [tc-nuit,
^\ oiit ill till' 2n(l Part of that scht'diile."

'This sL'hcdiih' requires almost iileiitieally the suaie inforumtiun to Ixs
»ivi'ii us see. IHtJ, 17 & IH Viet. e. 104.

559. "I'he iKind shall be in siieh sum us the consular offieer or judge Provision.s «s
iliiuks siillieient to answer the demand for siilvage wrviee, but the sum '» '"""1 '" '*'
lisdl shall not exceed one half of the amount which in the o[)iniou of *'*i''^'"*'''b
iluroiisiilur officer or judge is the value of the [uoiiorty in respect of

which salvajje has l)een rendered.

"(2.) Wliere the vessel, ear<;o, or property in res|H!ct of which salvage
,i\iies are rendered is not owned by persons domiciled in Hi'r Majesty's
iloiiiiiiii)iis the master shall procure such security for the due performance
i.| till- Ixiiiil as the consular otiicer or judge thinks sutiicient to be lodged
wiiii that ollicer or judge, or with that oHicer or judge ard such otTier
IxTsiiii jointly as the sidxor may appoint.

"(it.) 'i'he consular ollicer or judge shall fix the amount of the bond
wiiliiii lour days after the receijit of the statements required by this Part
of tliis Act, but if cither of those sti' 'luents is not deli\ered within the
mm'iv(|iiiied liy this I'art of this Act, he may proceed f,i'-yv«;'/<'." (i.) A
coiisular ollicer may for the piirpo.sc of this .section take affidavits.
(,).) Nolliing in this section shall aiilhuri/.e the eonsiihir officer or judge
lomiuiiethe cargo of nnv ship to be unl>!'Lii !7 & 18 Vict. c. lOt.
*«. 487-18!).

560. 'I'l'*! consular officer or judge, on fixing the sum to be inserted Execution of
Ml lilt' bond, shall send notice thereof to the sal\\)r and ma.ster, and on

llic execution of the l)ond by the niast»'r in the sum fixed in the presence
of the coii.sular officer or judge (who shall attest the saiiu!) and upon
delivery thereof fo the salvor, ami in cas«'s where security is to be lodged,
on that security lieingduly lodged, the right of the salvor to detain the
vesH'l, caigo, or projM'rty shall ceas«'.

(2.) The l)ond .shall bind the respi^ctive Miers of the vessel, cjirgo,
iiml lieifrht, i.ul their heirs, executors, and administrators, for the salvage
;iiiiii(l;;i (1 to 1h? pavable in respect of the vessel, cargo, and freight le-
j|wtively. 17 t<t'l8 Vict. c. 104. S.S. 4H8-491.

561.— (1) The bond shall be adjudicated on and enforced in the High Enforcement
Conn ia England, unless the sidvor or ina.ster agree at the time of the "^ '^''"*^'
cxet'iitioii of the bond that th«^ bond may lie adjiidicatod on and enforced
ill any specified ('olonial Court of Admiralty or Vice-Admiiidty Court,
liiit tlmt court shall in that ca.se have ihc' .same power and authorities for
Oil' luiqio.si' as the High Court in Eiu/laiul.

(2.) The High Court in Enf/land shall liave power to enforce any l)ond
given in |Husuance of this Part of this Act in any Colonial Court of Ad-
iiiinilt • or Vice- Adminilty Court in any part of Her Majesty's dominions,
and II ly court exercising Admiralty jurisdiction in Scotlmid, Ireland, the
We of }'iiii, or the Chaiuwl Inlands, shall a.ssist that court in enforcing
tlioi<e Iwiids.

(3.) Where security has Ik'cu given for the performance of a bond, the
jicrsoiis with whom the security is lodged shall deal with the sjune as the
cniirt .uljudicating upon tlii" fioiid direct.

(I.) Tile consular officer or judge .shall, at the earliest opportunity,
tniiisiuit the stjitements and documents delivered to him, and the notice of
llie Slim fixed in the IkukI, to the High Court in Knijlnud or the Colonial
Cuiirt of Admiraltv or Vicc-Admiraltv Court in which the l)oiid is to
1k' euforced, n* the case may be. 1 7 &" 18 Vict. c. 104. ss. 492, 103, 400.

m \

lii

984 57 4 58 VICT. f.(R).— J THIS. OP HIGH COUHT. [infn

SaTin^; for
other MilvHge
righto.

Jurisdiction of
High Court in
■alvage.

562. "Nothing c-oiitaiiH'<l in this Part of this Act shitll |iivjii(ii('<> the
riglitof the Nulvor whore Hulviigu services have heen rendered l)v one of
Her Majesty's ships or by the cuninianiler or any of the crew tliVieof to
proceed for the enforcement of the salvtige chiiin otherwise tlmn in tlic
manner provided by this Act, but the sidvor shall have i\(> riirht to ilctnin
the vessel, cargo, or property savetl nidess he elects to proceed under this
Part of the Act.

" (2> Nothing contained in this Part of this Act siiall attVet llic ii"iii of
the Midvor where sidvage s<'r\icc has heen rendered liv one of Hii
Majesty's ships, or by the conunander or any of the crew thcicof in miv
case which is not provided for therein." 17 & IH Vict.c. 101. s, HM.

563. The Itond, stjitement, agreement, oi' oth«-r (lociinienl itlntin" i«
salvage by Her Majctsty's ships is to be exempt from stamp diit\ , if niiidc
or executi'd out of the United Kingdom.

564. Punishment for forgery and false representation in uny iirocccd-
ings under this Part of this Act relating to salvage by Her Majesty's
■hips.

Jurisdiction of Hir/h Court in Salvngv.

565. " Subject to the provisions of this Act, the High Couil, ami in
Scotland the Court of Session, shall have jurisdiction to decide u|K)n nil
claims whatsoever relating to salvage, whether the services in respect of
which salvage is claimed were performed on the high seas oi' within thf
bo<ly of any country, or jNirtly on the high seas and ))artly within the
body of any country, and whether the wreck in respect of which stdvagc
is claimed is found on the sea or on the land, or partly on the sea mid
partly on the land." 17 & 18 Vict. c. 104. s. 476.

566. Appointment of receiver of wreck to be in the Board of Trado,
and that body to have the general sui)erint4mdence throughout Uoiteil
Kingdom of all matters relating to wreck. 17 & 18 Vict. c. 104. s. 43il.

567 deals with the fees to be paiil to receivers of wreck, and provide.'-
that any dispute as to the amount imyaiiK- to any recei\er is to Ih' settled
1 y the Board of Trade, whose decision is final. 17 &. 18 Vict, c. 104.
88. 455, 456, 457.

568 provides for imyment of remuneration by the owner of wrecked i
property for services by coast guard in watching and profcetinjr ship- 1
wrecked property, but renuineratioij is not due if owner ileclincil their
service, or if salvage has lieen awarded for those wrviees. 18 & 19 Vict.
c. 01. s. 20.

569. All wrecks being foreign goo<ls brought or coini;ig into the
United Kingdom are to be subject to the same duties as if the fuiue had I
been imported. (2) The Commissioners of Customs, on the revenue Injing
protected, may allow wrecked goods to be forwarded : or returned. Tainn |
Act, aud 17 & 18 Vict. c. 104. ss. 499, 500.

570 gives the su.me })owers to a sheriff in Scotland as are given l>vj
the Act to n J. P. or court of summary juris<liction. 17 & 18 Viet.;
c. 104. s. 501.

571. The rights, jurisdiction, and powers of the Cinque Ports are saved.j

PART 10 (sees. 572 to 633) is a re-enactment of Part 5 of 17 A \4
Vict. c. 104., with portions of 25 & 26 Vict. c. 63. It applies (seal
sec. 572) only to the United Kingdom : but to all British fliidj
foreign ships.

M »

JOrUT [IH5)4.

1^04.]

57 & 5H VICT. c. (10.— PILOT LK'KNC'E.

985

inque Ports arc save

Pilotui/e.

572. "This Part of tin- Act i'Xtcml.s to Mm- United Kiugtloiii and the Apiilicniioii of
/</(■ of Man only, but applie-s to all shipw British and foreign." 17 & 18 ^•"■' '"•
Vict. c. 104. H. 330.

573 gives the definition of " pilotuge authority."

574 continues existing pilotage authorities' powers. 17 & 18 Vict,
(■.U>4. s. .331.

575. Board of Trade may constitute new pilotage authorities; and by
(>) there is to be no compulsory pilotage and no restriction on the powers
(if (liilv (pialitied |)er.sons to obtain licences as pilots in any new pilotage
torii'ts. 25 and '20 Vict. c. (53. s. .39 (3) ; 52 & 53 Vict. V. 68. s. 2 (A).

576 deals with the transfer of pilot4ige jurisdiction to local jurisdic-
lion. 25 & 26 Vict, c. 63. s. 3».

577 <lcais with direct representation of pilots and shipowners on the
pilotage authority of any district. 52 & 53 Vict. c. 68. s. 2 (a).

,,578. "The Board of Trade nuiy by Provisional Order exempt the Exempt ion
master and owners of all shi'js or of any cla8.ses of ships from l)eing f""*"" <■""'-
oliliged to employ pilots in any |)ilof district or in any part of any pilotage P"''*"*"y
(listrift, or from lieing obliged to jmy for pilots when not en)i)loying them '" " "^*'
in niiy district or in any part of any pilotage district, and annex any
terms and conditions to those exemptions. 25 & 1:6 Viet. c. 63. s. 30 (4).

579. Power of Board of Trade to give facilities where the pilotage
i* not compulsory with resjiect to licences, and to prevent the employ-
ment of unqualified pilots. 25 & 26 Vict. c. 63. s. 39 (.'^) (6) (7).

580 gives the mode of obtaining Provisional Orders from the Board
of Trade, &c. 25 & 26 Viet. c. 63. s. 40.
581. Every pilotjige authority inay do the same as in see. 578

582 gives pilotage authorities [Mtwer to make bye-lawf for, inter alia,
regulating quidifications of licensed pilots. 17 & 18 Vict. c. 101. s. 333 ;
52 & 53 Vict. c. 68. s. 7; and 35 & 36 Vict. c. 73. s. 11.

583. Bye-laws are to he confirmed by Order in Council. 17 & 18
Vict. f. 104. ss. 334, 335.

584. The majority of qualified pilots, local marine board, and
vhere no IxHird any number of persons not less than six, being masters,
owners, or insurers of ships, may appeal against any bye-law. 17 «!t 18
Viet. c. 104. 8. 336.

585 provides for i)eriodienl returns to be made bv I'ttcy pilotage
•uthority to the Board of Tiude. 17 & 18 Vict. c. 10*. ss. 337, 338.

586 deals with licensing of pilots. 17 <& 18 Vict. c. 104. s. 349.

587 provides that every qualified pilot is to have a copy of this Part
of the Act and the bye-laws of his pilotage, and to produce them to
fvervmastflr of a ship who employs him if asked for. 17 & 18 Vict.
c. 104. s. 360.

588. Pilot licence to be produced to employer if required. 17 & 18
Vict.c. 104. 8,351.

389. A qualified pilot may l)e called upon to deliver up his licence;
«lso the licence of deceased qualified pilot is to be delivered up to the
I'ilotajjp authority vvho licensed biin. 17 i^' 18 Vid. c. 104. s. 352.

590 inqKises a penalty of 50/. on a person not entitled to do so who
«»s a pilot licence.

l!|

lint

t .1

fl8fi

.57 A 5H VrCT. c. (W.— RIGHTS OP I'lLOT.

[1H91.

591 ilciils with rocovery of pilotiipi> clueM; mid piovidi's ilmi ikischs
liiililc for thoin may Ik* tlio owiut or inaslcr, or coiisij^nccs or in'cni.
who huve inailis theinselves liable to pay any other cliarffts mi accdiint of
the ship ill the port of her arrival or (liseharf^e if piloln^fc iiiinirdii
niul in port from which she eloars out if pilotage oiilutinl\. i; I
18 Vict. c. 104. ss. 303, 3(54. [See .wc. G19 post.]

592. I'ilotaije rate.M e.stnltli.shed hy law are only to In- puid m- ,|,,.
iimiKled under a |K'iialty of 10/. 17 <i IH Vict. c. 101. s. 35s.

593. I'ilotiv;(e rate for leadiii;; ships may he chaifjcd as il' llii'|ii|i,|
wa.s on board the led ship, if no otli(>r qualified |iilot is on boaril. 17 .^
IH Vict. c. 104. s. 3.jO.

594. E.xtra allowance of 10.y. (Ul. a day to pilot taken to .sea tiiroiiirh
necessity or without his consent out of his pilota<;e <listrict, imlii.'.ivc of
the day crossing the limit engaged for inul the day of liis Iciivin;^ tin'
.ship: also including such day as will allow him to return to his own
district, and in the la.st cusu his rea.souable travelling i'.\{H-n!M'^
I7ife IH Viet. e. 104. s. .357.

595. A penalty is incurred by making a false declaration to pilots as
to draught of ship or altering fraudulently marks on ship. 17 \ In
Viet. e. lot. s. 359.

596. An unqualified pilot may, without incurring any penalty, take
charge of a slii[» («) when no tpialilied pilot has offered or made u >iii;n{il
that hiMvill lake cliargi! of the ship; (b) when a siii[> is iiuli.stresxn
when master must .secure the best assistance that he can ; and (c) for
the purpose of changing the moorings of any ship in port, or lakin;; im
into or out of any (lock where that can be done by an iiiipuililifd |iili>i
under the bvedaws or orders of the harboiu' master of such i»oit ordoik.
17 & 18 Vict. c. 104. s. 3G2.

597. A qualified pilot may, at any time, siqierscde an uiiiinalifiKJ
pilot, the latter being paid out of the qualified pilot's duos. J/nd. s. 36(1.

598 lenders liable to a jMjnalty of 50/. any umpialified pilot who
takes charge of a ship after a (pialifled pilot has oilered to ilo su. 17 1^ 1^
Vict. c. 104. s. 301 ; 52 & 53 Vict. c. 08. s. G.

599. Pilotage authority may grant a pilotiige certificate to a iiinsttror
mate of any shi]) on payment of f(>ea and exaiuiiiation as to coin|K-ti'iu'v
17 & 18 Vict. c. 104. ss. 340, 341.

600 gives an appeal by master or nuite to the Hoard of 'IVadi il
a pilotage authority, without reasonable cau.se, refu.se an cxamiuatidii :
or if the examination is unfairly conducted : or the conditions iiiipsi!
are unfair : or if the pilotage certificate has been iuipropi'ilv witlnlniwu
17&18 Vict, c, 104.8.342.

601. The Board of Trade or any pilot^ige authority may witlulmw
any pilotage certificate for misconduct or incompetency. 17 <fc 18 Viit
c. 104. s. 344.

602 provides what fees arc to be charged for pilotage ccrtifuntos.
and wliat is to l)ecome of the surplus over expenses of examination,
e.ff., generally to Pilots' Superannuation Fund. 17 & 18 Vict. c. 101
s. 343.

603. Compulsory pilotage, where existing, and exemptions from tiiat
compulsory pilotage, is to remain subject to any alteration) by tlio Bonn!
of Trade or o pilotage authority. (2) The penalty on the muster of an

\m.\ ri7&6HVltT.c.<JO.— REUS. AS I'O PILOT FLAG. 987

iini'Xt'iiiptfd ship, who (I(h>h nut hold a piloltt^f ciTtillciitt-, if he pilol> IiIm
,lii|i wiliiiii a foiupiilsory itilolagt- district at'lcr a (lualiiiwl pilot has offered
III sigual or otliLTwiso to take Chinee of the ship, is double the pilotjige
lilies tliut could he deiuauded for the couduct of the ship. 17 & IH
Vict. f. 104. 8. 353.

604. PusHenger ships to or from any i>laee in the British Ishuuls to
(lurv a |>>lot while within u pilot district. Masters of such ships amy
obluiu [)ilot«ge certilicates. 17 «.t IH Vict. c. 104. ss. 354, 335.

605. Ships [tassing through a pilotage district on a voyage i)etweeu
pliiiT.'i lioth situate out of that district neetl not have a pilot, hut the
t'M'iupliun does not apply to ships loading or discharging at any [)h>ce
tviliiiii pilotage tlistrict or in a river situate abo\e that district. 25 &
2«Vii't. c. 03. 8. 41.

606-61O <lcal with olTences and suspension and dismissals of i>ilots;
ami iippeals of pilots. 17 and 18 Vict. c. 104. ss. 3U5, 300, o07 ; and
,VJ k "»;! Vict. c. OH. hh. 3, 4.

611. I'ilot boats to bo approved i>y pilotage authority, who may
remove the master if necessary. 17 & IH Vict. c. 101. s. 315.

612. (-'haracteristics of pilot boats : All pilot boats are to have the
uiiiiii' of the owner and [tort .she Ijelongs to painted on the stern, with the
numk-r of her licence painted in white letters on each bow : and when
iiHuut to have at each masthead u large lUig of two colours, the upper
horizontal half white, and the lower red. Name, uimiber, and tlag are
at 111! times to be kept clean, luicovered, and <listinct. 17 & IH Vict.
e. 10-1. H, 346.

613. Pilot flag when a pilot is on board a Hhip ia to be displayed on
that ship under a penalty of 50/. on pilot ; and also when the master or
mate uii board holds a pilotage ccrtilicatu and the ship is within a com-
pulsory pilot district the Hag is to Ihj displayed. 17 & 18 Vict. c. 104.
>. 317 ; 62 & 53 Vict. c. OH. s. 0.

614. A |)cnttlty is impose<l on an onliuary boat ilisplayiiig a ihig like a
pilot tiug without having a pilot, or master or mate holding a pilotage
wrtiticute, on board. 52 & 53 Vict. c. 08. s. 10.

615. Orders in Council may be made to signify what signals are to be
liisplnyed by ship requiring a pilot: and all masters of ships are to u.se
thosif signals and to prevent them from being used for any other purijosc.
36 & ;i7 Vict. c. 85. ss. 20, 19.

616 reserves power to Trinity House to alter regulatiou.s. 17 & 18
Vict. c. 104. 8. 308.

617 gives power to Trinity Hou,se to appoint sub-commissioners for
the e.\amiuatiou of pilots. 17 & IH Vict. c. 104. s. 309.

618. Licensing of pilots by Trinity House within certain limits and
those districts defined. 17 & 18 Vict. c. 104. s. 370.

619 provides for the publishing the names and addresses of licensed
pilots and their districts, e.r/. at Trinity House, the Commissioners of
Customs, London, and the Customs House where the pilot is licensed ;
and that every Trinity House pilot enter into a bond of 100/., ond
yearly renew his licence. 17 & IH Vict. c. 104. ss. 371, 372, 374.

620. Trinity House pilot's liability for neglect or want of skill on his
iwrt liuiiteil to his ICO/, bond and his pilot dues. 17 & 18 Vict. c. 104.
8. 373.

!|ifpi

1 1

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IMAGE EVALUATION
TEST TARGET (MT-3)

1.0

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Photographic

Sciences

Corporation

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23 WEST MAIN STREET

WEBSTER, N.Y. 145S0

(716) •72-4503

"1%

(6^^

Limitation of
liability of
owner or
master where
pilotage com-
pulsory.

088

57 & 5H VICT. c. 60.— TRINITY HOIJSH

[1H!)4.

621. Power is givoii to 'IVinity House to icvokc or to siispcnfl the
licence of any Trinity House pilot. 17 & 18 Viet. c. 104. s. 375.

622. Subject to exemptions, pilotage is compulsory in the distrids of
Trinity House, e.ff., London district and Trinity House outport district
17 & 18 Vict. 0. 104, s. 376.

623. Trinity House must keep a constant and sufficient dav and
night supply of qualified pilots at or near Dtmgeness : always ready td
take charge of ships coming from the westward past Dungeness. 1 7 .J: 18
Vic(. c. 104. s. 377.

624. The master of any ship coming from the westward past Dunne-
nexs, bound to any place in the Thames or Medway (unless she lias a
qualified pilot on board, or is exempt from compulsory j)ilotage) sholl
on the arrival of the ship off Dungeness, and until she has passed tlip
south buoy of the Brake, or until a qualified pilot comes aboard, display
the signal for a pilot, and shall take the first pilot offering. 17 & 18
Vict. c. 104. s. 378.

625. Certain British, French, and Channel Islands coasting ships,
when not carrying passengers, may be exempt from compulsory piiotawe
in Trinity House London an<l outport districts from carrying a pilot.
Colonial ships are not mentioned. 17 & 18 Vict.c. 104. s. 379(1) to (5),

626 provides for rates of pilotage demanded by Trinity Hoii.sc pilots ;
and that Trinity House may relax this Act {see sec. 592) so far as to
allow their pilots, by their authority, to receive any less sum than that
demanded by law. 17 & 18 Vict. c. 104. s. 380.

627, 628 deal with pilotage dues for foreign ships for port of
London, and their receipt and application. 17 & 18 Vict. c. 104.
ss. 381, 382, 383.

629 provides for the settlement of difference as to draught of any
ship trading to or from the port of I^ondon, e.g.. Trinity House uiav
appoint a proper officer to measure ship if inward bound before she dis-
charges her cargo ; and if outward bound, before she quits her uiooriiig.'^,
the party in the wrong to pay to the officer measuring the ship, if the
ship be below the entrance to the LondonDocka, Wapping, II. l«.,aud it
above, 10«. 6rf. 17 & 18 Vict. c. 104. s. 384.

630, 631 provide for the payment of a poundage on pilot's earnings
ami a licence fee to Trinity House : secondly, for a penalty 011 false
account of earnings: and thirdly for the application of the fuuil.
17 & 18 Vict. c. 104. ss. 385, 386,

632 deals with fltill and Newcastle Trinity Houses.

633. An owner or master of a ship shall not be answerable to nii;
person whatever for any loss or damage occasioned by the fault or
incapacity of any qualified pilot acting in charge of that ship within
8ny district where the employment of a qualified pilot is compulsoiv
by law. 17 & 18 Vict. c. 104. s. 388.

PART 11 (sees 634 to 675) answers to Part 6 of 17 & 18 Vid
c. 104. Sees. 670 to 675 apply to the colonies.

Lighthouses.

634 deals with management of lighthouses, buoys, and hi'Hcons; f.y,
throughout Engltmd and Wales, Channel Islands, and adjacent seas mil

im.] o7A)H VUT. .•.6(».-N0RTHKR>f \- > USH: LIGHTS. 989

! f '■ I ijliy ■ 1 ^1 '--ll"^

ot offering. 17 & 18

isliimls iind at Gihrallur, to he inTrinit) Hous» a .irouglioiit Sootlauil
1111(1 adjacent sca.santl islands and the tile of Ma,,, .n tin- Northern Light-
houses C'oinniissionei'H; Throughout 1, . 'atitlaiul adjacent sea.s and islands,
iatbe ('ommissioners of Irish Lights. 17 & 18 Vict. c. 101. s. 389.

635. ^^^ general lighthouse authorities are to give at all times
to the Board of Trade returns, explanations, and information as to all
lifflitiiouses, buoys, or beacons within their respective areas.

636 gives power to the Board of Trade to inspect and cause inquiry
to be made on complaint of any lighthouse, buoy, or beacon, &c. 17 & 18
Vict. c. 104. s. 393.

637 gives power of inspection by Trinity House. 17 & 18 Vict.
c, 104. s. 392.

638 deals with the general power of lighthouse authorities to erect, add
to, or vary any lighthouse, buoy, or beacon. 17 & 18 Vict. c. 104. s. 404.

639. A. general lighthouse authority may take and purchase land or
ir.ay sell land. 17 & 18 Vict. c. 104. s. 412.

640. When the Northern Lighthouses or Irish Lights Commissioners
propose to execute any of their lighthouse powers they are to submit
their scheme to Trinity House, who are to forward their report thereon
to the Board of Trade. 17 & 18 Vict. c. 104. .ss. 405-407.

841. Trinity House may, with the sanction of the Board of Trade,
ilirett tlie Northern Lighthouses and Irish Lights Commissioners to have
certain works done in continuing a lighthouse, buoy, or beacon, to erect or
alter or remove any such existing, or to vary the character of or mode
of exhibiting lights therein. But before a decision is come to, a written
report is to be sent to the Board of Trade, and the Northern and Irish
Commissioners are to have an opportunity of making any representation
theyehoose. 17 & 18 Vict. c. 104. ss. 408,409.

642. Additions to lighthouses in the way of fog signals or light sirens
may be treated as a separate lighthouse. 50 & 51 Vict. c. G2. s. 5.

643. Light dues are continued. 17 & 18 Vict. c. 104. s. 396.

644. On completion of a lighthouse, buoy, or beacon, an Order in
Council may fix the dues to be paid in respect thereof in the case of
Hiiy shii) which passes the same or derives l)enefit therefrom. 'J'hese
dues are to be deeine<l light dues. 17 it 18 Vict. c. 104. s. 410.

645. An Order in Council may alter light dues : but dues of light-
houses &c. existing in 1855 are not to be raised higher than tiiey could
be previous to May in 1855. 17 & 18 Vict. c. 104. s. 397.

646. A general lighthouse authority may, after obtaining an Order in
Couneil, exempt any ships or classes of ships from any light dues pay-
able to such authority : alter the time, and the mode of paying dues :
and substitute any other dues, by way of annual payment or otiierwise
in respect of any ships or classes of ships. But nothing was to affect
the Shipping Dues Exemption Act, 30 & 31 Vict. c. 15. See 17 & 18
Vict. c. 104. s. 398.

647. A table of all light dues is to be posted up in all customs houses
in the United Kingdom. 17 & 18 Vict. c. 104. s. 399.

648 deals with the application and collection of light dues. 17 & 18
Vict. c. 104. 88. 403, 402.

il I

! •!

990 57 A 58 VICT. c. OO.-PAYMEN'T LIGHT DUES

[isn4.

649 provides who is liable to pay the li<;ht duos, r.y., tlw dwncr „!■
master: or such consignees or agents as hiivo paid or made, thoinstlw,-,
liable to pay any other charges on account of the ships in the port df
her arrival or discharge. But (2) any consignee or agent, not bciii"
the owner or master, who is hereby made liable for the light dues in
respect of any ship, may out of any moneys received by him on account
of that ship, or belonging to the owner thereof, retain the amount oi' the
light dues paid by him, with the expenses incurred by his having to pay
the light dues. 25 & 26 Vict. c. 63. ss. 44, 45. [See sec. 591, ante, p. 986.]

650 gives power to levy a distress on the goods, guns, tackle, oi-
anything belonging to or on board the ship for light dues unpaiil ;
and if payment of the light dues is not made within three days, tho
collector may sell the distrained articles. 17 & 18 Vict. c. 104. s. 401.

651. The receipt for light dues must be shown on demand to the
proper officer of customs at any port where light dues arc payable.
17 & 18 Vict. c. 104. .s. 400.

652 provides that it shall be the duty of the general lighthouse
authorities and their officers to inspect all lighthouses, buoys, and beacous
situate within their area, and all officers and others having the charge of
lighthouses, buoys, and beacons, are to furnish all information required ;
and further, the general lighthouse authority shall conmiuniciite the
result of their inspection to the local lighthouse authority and make
a general report to the Board of Trade. 25 & 26 Vict. c. 63. s. 13.

653. The control of local lighthouse authorities — including the giving
directions to lay down buoys, vary lights, &c. — is given to the general
lighthouse authority of the district ; and if the local lighthouses are not
properly maintiiined, an Order in Council may transfer them to the
General Authority. 17 & 18 Vict. c. 104. ss. 394, 395.

654. A local lighthouse authority i^ay surrender or sell any light-
house, buoy, or beacon held by them to that district's general liglitlioiise
authority, who are to receive the dues. 17 & 18 Vict. c. 104. s. 413.

655. If any lighthouse, &c., is erected or reconstructed by a local
lighthouse authority, on application an Order in Council may fix the
dues to be paid to that authority ; and see a. 657. 25 & 26 Viet. c. 03.
s. 46.

656. AH local light dues received are to be applied by the
authority by whom they are levied for the maintenance of the light-
houses, &c., in respect of which the dues are levied, and for no other
purpose: and an account of receipt and expenditure is to be kept.
25 & 26 Vict. c. 63. s. 't7.

657. A local lighthouse authority may obtain an Order in Council
to I'educe dues if they have not otherwise the power to do so.

658. Expenses of the General Lighthouse Authorities are to be paid
out of the Mercantile Marine Fund. 17 & 18 Vict. c. 104. s. 418 (3).

659. An Order iu Council may Ux the establishments to be main-
tained by each of the General Lighthouse Authorities, and any increase of
the establishment must be sanctioned by Board of Trade. 17 it 18 Vict,
c. 104. s. 420.

660. 661. An estimate of all expenses to be incurred by a General
Lighthouse Authority in respect of lighthouses, buoys, and beacons,
other than expenses allowed under the Act, is to be sent to Bonrd ot
Trade ; and advances by the Treasury may be made for exlraordiiimj

T DUES. riS94.

1804.] 57 & 58 VICT. e. 150.~COLONIAL LfGHTHOUSES. 991

oxpenKPs, such ns reconstrnction and repair. 17 & IH Vict. c. 104.
,s. 422, 423, 424.

662. Mercantile Marine Fund may be mortgaged by Board of
Trade for extraordinary expenditure on lighthouses, &c. 17 & 18 Vict.
I.. 104. s. 425.

663. And Public Works Loan Commissioners may for extraordinary
lighthouse expenses advance money upon the mortgage of the Mercantile
Mnrine Fund. 17 & 18 Vict. c. 104. s. 426.

664. Each of the general lighthouse authorities are to accoimt to
Board of Trade for receipts and expenditure. 17 & 18 Vict. c. 104.
s, 427.

665. A. general lighthou.sc authority may, with the sanction of the
Board of Trade, grant pen.sions to their employees. 17 & 18 Vic. c. 104.
s. 421.

666. 667 JP'i' with offences in connection with and injury to light-
housos, &c. 17 & 18 Vict, c. 104. ss. 414, 415, 41G. See 24 & 25 Vict.

c.fl/.s. 47.

668 give the persons holding certain offices who are to be Commis-
sioners of Northern Lighthouses. 17 & 18 Vict. c. 104. s. 390.

669. Trinity House is not to exercise the powers given by this Act
in the Channel Islands (except as to false lights and local lighthouses
surrendered or purchased) without an Order in Council, and no dues
nre to be tfiken there without the consent of the respective States of
Guernsey and Jersey. 17 & 18 Vict, c 104. s. 411.

'^ipiiii

rade. 17 .*^ 18 Vict.

Lighthouses, S)-c., in Colonies.

670. — "(!•) Where any lighthouse, buoy, or beacon has, either before
or after the ))assing of this Act, been erected or placed on or near the
coasts of any British possession by or with the consent of the legis-
lature of that possession, Her Majesty may by Order in Council fix such
dues (in thi" i.ct referred to as colonial light dues) to be paid in respect
of that Hglithouse, buoy, or beacon by the owner or master of
every ship which passes the same and derives benefit therefrom, as Her
Majesty may deem reasonable, and may by like order increase, diminish,
or repeal such dues, and those dues shall from the time mentioned in
the order be leviable throughout Her Majesty's dominions." For this
ami following sections see 18 & 19 Vict. c. 91. ss. 2, 3, 4, 5, G, 7, 8.

"(2.) Colonial light dues shall not be levied in any British possession
unless the legislature of that possession has by address to the Crown,
or by Act or ordinance duly passed, signified its opinion that the dues
ought to be levied."

671. — "(1.) Colonial light dues shall in the United Kingdom be col-
lected niul recovered so far as possible as light dues are collected and
recovered under this Part of this Act.

"(2.) Colonial light dues shall in each British possession be collected
liy such persons as the Governor of that possession may appoint for the
purpose, and shall be collected by the same means, in the same manner,
and subject to the same conditions so far as circumstances permit, as
liglit dues under this Part of this Act, or by such other means, in such
other manner, and subject to such other conditions as the legislature of
the possession direct."

672. " Colonial light dues levied under this Act shall be paid over to
Her Majesty's Paymaster-General at such times and in such manner as

Dues for
colonial light-
houses, &c.

Collection and
recovery of
colonial light
(lues.

Payment of
colonial light

liiii,.

lines to Pay-

iiiiister-

Cii'iienil,

Application of
colonial light
dui'S.

Adra!nces for
construction
und repair of
colonial light-
houses, &c.

Accounts of
colonial light
dues.

992 57X-5hVI(T c. ($0.— B()AHl)THAF)E,('OL(>NriES. [\h{)\.

tlie Boanl ol 'I'rude dirt'Pt, und shall lie applii'd, |)nid, iiiul dcidt with hv
liim i'or the purposes aiithori/ed by this Aof, in snoh nunincr as ihut
Hoard dirt'ct."

673. "Colonial light dnes siiall, after dodnctinfj; the expenses of col-
lection, be applied in payment of the expenses incurred in erecting und
maintaining the lighthouse, buoy, or beacon in respect of which tiiev
are levied, and for no other purpose."

674. — " (1.) The Board of Trade may raise such sums as they think
fit for the purpose of constructing or repairing any lighthouse, buoy, or
beacon in respect of which colonial light dues are levied or are to be
levied on the security of those dues so levied or to be levied.

" (2.) Any sums so to be raised may be advanced by the Treasury out
of moneys provided by Parliament, or by the Public Works Loan Com-
missioners, or by any other peicons, but any such advances shall be made
and secured in the sf.mo manner and subject to the same provisions as
similar advances for the purpose of lighthouses in the United Kingdom
under this part of this Act."

675. — " (1.) Accounts shall be kept of all colonial light dues received
under this Act and of all sums exj^ended in the construction, repair, oi'
maintenance of the lighthouse, btioy, or beacon in respect of which
those dues are received.

" (2) These accounts shall be kept in such manner as the Board of
Trade direct, and s'' ill be laid annually liefore Parliament and nuditod
in such manner as ly be directed by Order in Council."

.ifl

PART 12 (sees. 67G to 679). See Part 7 of 17 & 18 Vict. c. 104.

Mercantile Marine Fund.

676, 677. Sums payable to the Mercantile Marine Fund ; and the
application of the fund. 17 & 18 Vict. c. 104. ss. 417, 418 ; 45 &40
Vict. e. 55. s. 3.

678 grants a subsidy from moneys provided by Parliament to the
Mercantile Marine Fund. 45 & 4fi Vict. c. 55. s. 5.

679. Mercantile Marine Fund accounts to be public accounts, ami
to l)e audited. 4o & 46 Vict. c. 55. s. 7.

SI:,!! ){(

PART 13 (sees. 680 to 712), trom Part 10, 17 & 18 Vict. c. m.
As to application to the colonies, see sec. 711.

Legal Proceedings. — Prosecution of Offences.

Prosecution of 680. " (!•) Subject to any special provisions of this Act and to the
offences. provisions hereinafter contained with respect to Scotland —

" (a) An offence under this Act declared to be a misdemeanor shall
be punishable by fine or by imprisonment not exceeding two
years, with or without hard labour, but may, instead of being
prosecuted as a misdemeanor, be prosecuted summarily in
manner provided by the Summary Jurisdiction Acts, and if
so prosecuted shall be punishable only with iniprisonnieiit
for a term not exceeding six months with or witliont haiil
labour, or with a fine not exceeding 100/.

wmmmm^

'OLONIES. [isiu.

nial light dues received

17 & 18 Vict, c. 104.

i by Pai'lianient to tlie
s. 5.
he pnblie accounts, and

1894.] 57 & 58 VICT. c. 60.— LIMITATION OF ACTIONS. 993

" {b.) An offence under this Act made punishable with imprisonment

for any term not exceeding six months, with or without

hard labour, or by a fine not exceeding]; 100/., shall be

pro.secuted sununarily in nuuiner provided by the Sinimuiry

Jurisdiction Acts.

" (2.) Any offence committed, or fine recoverable under a bye-law made

in pursuance ot" this Act, may be prosecuted or recovered in the same

manner as an offence or fine under this Act." 17 & 18 Vict. c. 101. s. 518.

681. The Summary Jurisdiction Acts shall, so far as applicable, apply
to any proceeding under this Act before a court of suunnary jurisdiction,
ffiiether connected with an offence punishable on sunmiary conviction
or not, and to th'i trial of any case before cue J. P. where under this
Act such J. P. may try the case.

(2.) Where under this Act any sum may be recovered as a fine,
tjiat sum, if recovered before a court of summary jurisdiction, shall
ia England be recovered as a civil debt in manner provided by the
Summary Jurisdiction Acts.

682. Where a person is convicted summarily in Enf/land of an Appeal on
offence under this Act, and the fine inflicted or the sum ordered to be summary con-
paid exceeds five pounds in amount, that person may appeal to quarter ^"^*'°"'
sessions against the conviction in manner provided by the Summary
Jurisdiction Acts.

683. — "(^O Subject to any special provisions of this Act neither a Limitation of
couviction for an offence nor an order for payment of money shall be '^'^^ for
iiiailL' under this Act in any summary proceeding instituted in the United ='"'""'"''/
Kingdom, unless that proceeding is commenced Avithin six months after P'^°'^''^ '"fe'**'
llie commission of the offence, or after the cause of complaint arises as
the case may je ; or, if both or either of the parties to the proceeding
linppen during that time to be out of the United Kingdom, unless the
same is couunenced, in the case of a summary conviction within two
ii'onths, nn('. in the case of a nummary order within six months, after
they l)oth first happen to arrive, or be at one time, within the United
Kingdom.

" [2.) Subject to any special provisions of this Act neither a
conviction for an offence nor an order for payment of money shall be
made under this Act in any summary proceeding instituted in any British
possession, unless that proceeding is commenced v. ithiu six months after
the commission of the offence, or after the cause of complaint arises as
the case may be ; or if both or either of the parties to the proceeding
liappen during that time not to be within the jurisdiction of any court
capable of dealing with the case." "Unless the same is commenced
iu tliG case of a summary conviction within two months, and in the case
of a summary order within six months after they both first happen to
arrive or to be at one time within that jurisdiction."

" (3.) No law for the time being in force, under any Act, ordinance,
or otherwise, which limits the time within which summary proceedings
may l)e instituted shall affect any sunnuary proceeding under this Act."

(4.^ Saves proceedings under Public Authorities Protection xVct, 1893.
1"&'18 Vict. c. 101. s. 525.

684. '' For the purpose of giving jurisdiction under this Act, every Provisions ns
offence shall he deemed to have been committed, and every cause of to jurisdiction
complaint to have arisen, either in the place in which the same actually '"> cnso of
was committed or arose, or in any place in which the offender or ''"'=""^***-
person complained against may be." 17 & 18 Vict. c. 104. s. 520.

'. 'it I

S 2340.

3 R

• * * ii

1 li I M'

994

57 & 58 VICT. 0. 00.— JURISDICTION.

[1894.

If.

Jurisdiction
over ships
lying off tho
const.

685. — (!•) Where any district within whidi any court, justice of tiu;
peace, or other magistrate, hf • JMrisdiction, either under this Act or
under any other Act or at common hiw, for any purpose wiiatcvi r, is
situat>-'d on the coast of any sea, or abuttinn; on or projeetiiif,' into niiv
bay, channel, lake, river, or other navigable water, every such conrt,
justice, or magistrate, shall have jurisdiction over any vessel bping ,n
or lying or passing off, that coast, or being in or near that bay, cliaiiml,
lake, river, or navigable water, and over all persons on board timt vessel or
for the time being belonging thereto, in the same manner as if tho vessel
or persons were within the limits of the original jurisdiction of tho coiiit
justice, or magistrate.

(2.) The jurisdiction under this section shall be in addition to, nud not
in derogation of, any jurisdiction or power of a court under the iSuinmarv
Jurisdiction Acts. 17 & 18 Vict. c. 101. s. 521.

Juri.sdiction in 686. — " (1-) Wiiere any person, being a British subject, is charjroil
case of oflfences ^»ith having committed any offence on board any British ship on tho lii;;h
ou board ship, g^j^^^ ^j, jjj j^^y foreign port or harbour or on board any forci<;n ship to
which bo does not belong, or, not being a British subject, is cliiirpil
with having committed any otTence on board any British ship ou the Iiii;li
seas, and that person is found within the jurisdiction of any court in
Her Majesty's dominions which would have had cogninance of the
offence if it had been committed on board a British ship within tho limits
of its orilinary jurisdiction, that court shall have jurisdiction to try tlie
offence as if it had been so committed.

" (2.) Nothing in this section shall affect the Admiralty Offences Colonial
Act, 18-19." [12 & 13 Vict. c. 90. An Act for the suppressiou of
piracies and treasons, &c., and that all persons accused of offcncvs
tommitted on the high seas might be tried in any colony in the saiin'
manner as if the oH'ence had been conmiitted on the waters within
the local juri.sdiction of the court.] 18 & 19 Vict. c. 91. s. 21 ; 30 & 31
Vict. c. 124. s. 11.

687 provides that all offences committed by British seamen aflont
out of Her Majesty's dominions, who at the time of the offonco wiv
employed on any British ship, or within three months previously, shall lie
tried in the same manner as if those offences were committed within the
jurisdiction of Her Majesty's Admiralty.

688 gives power to arrest any foreign ship that has occnsiouod
damage to any property belonging to Her Majesty or to any of Hit
Majesty's subjects.

Conveyanco of
offenders and
■witnesses to
the United
Kingdom or
British
possession,

689. — " AVhenever any complaint is made to any British consular officer

(a.) That any offence against i)roperty or person has been coinmitipil

at any place either ashore or afloat out of Ilor I\Iajosty's

dominions, by any master, seama.-; or apprentice wiioattlie

time when the offence was commi. od, or within three montlis

before that time, was employed in a British ship ; or

((0.) That any offence on tho high seas has been conmiitted liviniv

master, seaman, or apprentice belonging to any Ihitisli ship,

that considar ollleer may incpiire into tlu! case upon oath, and iiiiiv,

if the case so requires, take any steps in his power for the |)urposi' of

placing the offender under the neces.sary restraint, and of sending liini a.<

soon as practicable in safe custody to the United Kingdom or to imy

British possession in which there is a court capable of taking cognizance

of the offence, in any ship belonging to Her Majesty or to any of lier

subjects, to be there proceeded against according to law.

)y B^iti^'h scaiiien afloat
;iinc of the offence wciv

iiblo of taking coguiziiiuo

1894] 57 & 58 VICT. c. 00.— PT^ODUCTION OF EVIDENCE. 996

(2.) The consular officer may order tlie muster of any sliip belonjifing
to any subject of Hor Majesty, boiin<l to the United Kingdom or to such
IJritisli possession as aforesaid, to reeeive and atVord a passage and sub-
iistenon during tiio voyage ti> any such offender as aforesaid and to the
ivimcsses, so tiiat the master I)o not retpiired to receive more than one
oEfcader for every 100 tons of the ship's registered tonnage, or more than
one witness for every 50 tons of that tonnage; and the consular officer
>li:ill endorse upon the agreement of the ship such partietdars with
^'S|)ect to any offenders sent in her as the IJoard oC Trad(! require."

Tiien, by sub-sec. (.3), on arrival of the shi}) in the United Kingdom
or any such aforesaid British possession the offender is to be given into the
lastody of some police officer, who shall take the offender before some
J,P. or magistrate capable of dealing with the matter, and such J.P. or
iiiaj;iptratc shall deal with the matter as in cases of offences committed
on tlie high seas.

(1.) If a master when required does not receive the offender and
witnesses, and does not deliver the offender as afoi'csoid, lie is liable to a
oO/. fine, 17 <t 18 Vict. c. 104. s. 268.

(5.) The expense of imprisonment and conveyance of any offender
,iiiil the witnesses other than in the ship to which they belong, where
not paid as part of the costs of the prosecution, shall ])e paid out of
moiipy provided by Parliament.

690. Where a case of death happens on board any foreign-going
Britisli ship the superintendent at the port where the crew of the ship is
ilistliarged shall inquire into the cause of death and make an entry in
t!ie official log as to whether in his opinion the .statement in the log is
true or not.

(2.) The superintendent is for this purpose to have the powers of a
Board of Trade inspector, and if it npi)ears to him the death has been
caused by violence or other improper means, he shall either report the
matter to the Board of Trade, or, if the emergency requii'C, take imme-
diate steps to bring the offender or ofFencU'rs to justice.

(3.) 'J'he .section docs not apply (fi) except in Scotland to fishing
boats, nor (i) to .ships registered in a British possession when those
ships are within the jurisdiction of the Government of that possession;
nor (c) to pleasure yachts or to ships belonging to any of the three
general lighthouse authorities. 17 & 18 Vict. c. 104. s. 2G9.

691, Whenever in the course of any legal proceedings instituted in Depositions to
any part of Her Majesty's dominions before any judge or magistrate, be received in
or Ijefore any person authorised by law or by consent of parties to 'y^ence when
receive evidence, the testimony of any witness is required in relation to ^g pro|,J^"(j"°
the subject-matter of that proceeding, then upon due proof, if the proceed-
ing is instituted in the United Kingdom, that the witness cannot be found

in tliat kingdom, or if in any British possession, that he cannot be found
in tiiat possession, any deposition that the witness may have previously
made on oath, in relation to the same subject-matter, before any justice
or magiistrate in Her Majesty's dominions, or any British consular
officer elsewhere, shall be admis.sible in evidence. Provided that :

(«) if the depo.sition was made in the United Kingdom, it shall
not be admissible in any proceeding instituted in the United
Kingdom ; and
(4) if the deposition was made in any British possession it shall not
be admissible in any proceeding instituted in that British
possession ; and
(c) if the proceeding is criminal it shall not be admissible unless
it was made in the presence of the person accused.

3b 2

«iN

I , L

'1*1111

996 57 & 58 VICT. c. 60.— RIGHT TO DETAIN SHIP. [I80i,

(2.) A deposition so made shall bo anthcnticnted by the signature of
the judge, magistrate, or consular officer before whom it ia made ; and the
judge, magistrate, or cous\Uar olRcer shall certify, if the fact is so that
the iK'CUsed was present at the taking thereof.

And then, by sub-sec. (3), the signature or official character of tho
judge, &c., signing need not bo proved, and in criminal i)roceodin".s tho
certificate under this section is sutHcieut evidence of the accused haviu"
been present, "

" (4.) Nothing herein contained shall affect any case in which dcpo-
sitions taken in any proceedings are rendered admis.sible in evidence l)y
any Act of Parliament, or by any Act or ordinance of the legishitiuo
of any colony, so far as regards that colony, or interfere with the power
of any legislature to make those depositions admissible in evidence or
to interfere with the practice of any court in which depositions not
authenticated as hereinbefore mentioned are admissible." 17 & 18 Vict.
c. 104. s. 270.

692. Where under this Act a ship is to be or may be detained,
any commissioned officer on full pay in the naval or military service of
Her Majesty, or any officer of the Board of Trad(>, or any ofiiccr nf
customs, or any British consular officer, may detnin the ship ; and if
after detention the ship goes to sea before it is released by competent
authority, the master, as also the owner, or any person who sends tho
ship to sea, if privy to the offence, shall be liable to a fine of 100/.

(2.) Where a ship so proceeding to sea takes to sea, when on board in
the execution of his duty, any officer authorized to detain the slii[), or
any surveyor, &c., the owner and master shall each l)e liable to pay all
the expenses of and incident to the oflicer or surveyor being taken
to sea, and also a fine not exceeding 100/. ; or, if the offence is not
prosecuted in a summary manner, not exc( eding 10/. per diem mitil tho
officer, &c., returns, or until he can leave the ship to return; and the
expenses may be recovered in the same manner as the fine.

(3.) Where under this Act a ship is detained, an olFicer of cnstoms
shall, and where she may be detained an officer of ciistoms may, refuse
to (dear that ship outwards or to grant a transire to that ship.

(4.) Where any provision of this Act provides that a ship may bn
detained luitil any document is produced by tho proper officer, " proper
officer " shall mean, unless the context otherwise requires, the officer able
to grant a clearance or transire to such ship. 39 & 40 Vict. c. 80. s. 34.

693. Where any court, J.P., or other magistrate has power to make
an order directing payment to be made of any seaman's wages, fines,
or other sums of money, then, if the party so directed to pay the same
is the master or owner of a ship, and the same is not paid at the
time and in the manner prescribed in the order, the court, J.P., or
magistrate who made the order may, in addition to any other powers
they may have for the purpose of compelling payment, direct the
amount remaining unpaid to be levied by distress, or poinding, and
sale of the ship, her tackle, furniture, and apparel. See 17 Jic 18 Vict.
c. 104. ss. 400, 401.

694. Where a document is required to be attested the docnment
may be proved by the evidence of any person able to bear witup«s to
the requisite facts without calling the attesting witness. 3id. s. 526.

695. Where a document by this Act in declared to be admissible
in evidence, production from the proper custody is sufficient, and the
dc'":.iient is to be admissible in evidence in any court or before any
person having by law or consent authority to receive evidence, and^

nTfTTf^^

[N SHIP, [1891.

I89t.] 57 & 58 VICT. c. 60.— PENALTIES AND COSTS. 997

subject to nil just exceptions, sbuH be evidcuce of the matters stated
ihiTcin.

(2.) A ('0])y of niiy .siieli (loeuiiK'iit or extract therefrom slinll )>e
ii(liiii.ssil)le if it purported to lie ii siffued and certified or true copy Ity
the ollicer to whose custody the original ikuMunent was entrusted, and
lliiit (illleer .shall, on payment of not exeeedinjj Id. for i;very folio of
iiiiii'ty words, fui'nish u certiiied copy ; but on payment of l.v. a person
iiiii hiive n eertilled eojiy of the particnhu-s entried liy the rej^istrar in
lilt! i'i';;i.ster book on the rej^istry uf the .ship, toj;ether with a .statement
.-liowing the ownership of the ship at the time being; and (fj) a eertilied
{•(ipy of any deelaration or document a copy of which is nuule evidence
Ulh\ti Act. See ante, see. (ii, and 17 !k 18 Viet. c. 104. s. 107 ; 18 & 19
Vict. c. 91. s. 15.

The section continues : (3.) — If any ollicer wilfully certifies any
(locumeut as being a true copy or extract, knowing the same not to be a
true copy, such offence is a misdemeanor punishable with 18 months'
imprisonment; and (4.) If any person forges the .seal, stamp, or signature
of any document to Avhicli this section applies, or tenders in evidence any
such document with a false or counterfeit seal, stamp, or signature
knowing the same to be false, he shall for each offence be guilty of felony.
Punishment, not exceeding seven years' penal servitude, or imprisonment
for two years with ( ir without bard labour.

696 deals with service of docimients, and imposes a penalty of 10/.
ou any person obstructing the service of any document relating to the
detention of any ship as unseaworthy, and if the owner or master is
privy to the obstruction he is guilty of a misdemeanor. 39 & 40 Viet.

c, 80. s. 35.

697. Any exception, exemption, proviso, excuse, or qualification in rela-
tion to any offence under the Act may be proved by the defendant, but
need not be specified or negatived in any information or complaint.

698. Any declaration required to be taken before a J.P. or any
piirticular officer may be taken before a commi.ssioner for oaths.

699 provides for the ajjplication of penalties and costs of prosecution.
Where any court, J.P., or other magistrate impo.ses a fine under this
Act, for which no specific application is herein provided, that court
J.P., or magistrate may, if they think fit, direct the whole or any part
nf the fine to be applied in compensating any person for any wrong
or damage which he may have sustained by the act or default in
respect of which the fine is imposed, or to be applied in or towards
tlie expenses of the proceedings.

(2) Subject to any directions under this section, or to any specific
application provided under this Act, all fines under this Act shall,
notwithstanding anything in any other Act —

(ff) If recovered in the United Kingdom be paid into the Exchequer
in such manner as the Treasury may direct, and be carried to
and form part of the consolidated fund.
(6) If recovered in any British possession, be paid over into the Colony.
public treasury of thiit possession, and form part of the
public revenue thereof.
700. Where an offence under this Act is prosecuted as a misdemeanor Expenses of
the court before whom the offence is prosecuted may in England make prosecution of
the same allowances and order payment of the samt! costs and expenses misdemeiinor.
US if the offence were a felony.

And in any other part of Her Majesty's dominions may make such
Hllowuuces and order payment of such costs and expenses as are payable

•»l i

i 1

, 1

' i

1 ■ 1

998

67 & 68 VICT. 0. 00.— UOAUl) OF TllADH.

[INOI.

or allownhle iipou tho trial of any mis(lL'i.'ioiitK,r or iiiidcr miiv liiw [ur
tho tiuii! Ix'iiig ill fbrc'o therein,

701. ^ueh costs incident/.! to any prosecution for felony ov nilsdeniciiiKiv
as are l)y liiw payable out of any county or local rale slmll, where the I'elom-
or misdemeanor Inis lieeii committed within the jiirisdietion of tlm
Admiralty of Eih/Ih, ,/, he paid in the sanii; ir.anner and siilijict lu
the same rcf^ulatioiis as if liiese erinies had been commitled ip the (.•(ninty
wliere the same is iieard, or if heaiii at the Central t'riiniiiid Cuiiri, as
if the sanu^ had been committed in the County of lionih)ii, and all sums
l)roperly paid out of any county or other local rate in respect of ihusc coms
and oxpeusts shall be repaid out of the nujney provided by I'iuliaiiicnt,

702-710 ^It'al with the procedure in ScotlumL 17 & is Vici
c. 10-1. .ss. 530 to 543.

Prosecution of
offences in
British
possessions.

ApplicRtion of
Part 13.

Returns as to
merchant
shipping to
Board of Trade.

Prosecution of Offences in the Colonics.

711. ■A-"y offence under this Act shall, in any IJritish possession, ln>
punishable by any court or magistrate by whom mi offence of a like
character is ordinarily [mnish.ible, or in such otlier manner as may lie
determined by tmy Act or ordinance having the force of law in that
possession.

712. This Part of the Act shall, except where otherwise provided,
apply to the whole of Her Majesty's dominions.

PART M (sees. 713 to 718) follows closely Part I of 17 & 18 Viet.
c. lO'l. The powers of the colonies are dealt with in sees. 735, 7'''

General Control of Board of Trade.

713. The Uoard of Trade, except where otherwise provided in llii>
Act or other Acts in foicc, or so far as those Acts relate to revenue, aivlcj
have the general superintendence of all matters relating to nieivhaiit
shipping and seamen. 17 & 18 Vict. c. 104. s. G.

714. All consular officers and officers of customs abroad, and all
local marine boards and superintendents, shall make and send to the
Board of Trade such returns or reports on any matter relatini; to
British merchant shipping or seamen as the Board may recjuire.

715. All superintendents, when required, are to produce to the lioaid
of Trade all official log-books and other documents which are delivered
to them.

716. All fees, &c., under 2nd, 4th, and 5th Parts are to he carried to
the account of the Mercantile Marine Fund. (2) All iines coming into
the hands of the Board of Trade are to be paid into the excliequei' of
the Treasury.

717. Tlie Board may take any legal i)i'oceedings in the name of ;\u}
of their officers.

718. Expense.? incurred by Commissioners of Customs in conducting
suits or prosecutions are to be paid out of the revenues of customs, but the
Board of Trade may, with the consent of the Treasury, repay out of the
Mercantile Marine Fund all or any part of such expenses so paid as are
under this Act chargeable on that fund.

719. 720 deal with the proof of Board of Trade documents ; i.e., that
they be admissible in evidence ; and with the power of the Board of Trade
to prescribe the forms to be used. 17 & 18 Vict, c, 104 ss. 7, 8.

i^'Jl]

57 & 58 VICT, c 00.— ENFORCING ACT.

999

e otherwise iirovidwl,

t I of 17 ct IHViut.

a;s in the name of ;iuj

721 enacts that tho following in.strnments shall bo exempt from stamp
ilutv : Instminenls to carry intoclTect the 1st Part of tlie Act ; those used
livilic Hoard of Trade to carry into ell'eetlind, oth, 11th, and 112th Parts;
jiiil liny instrnmenth wiiieh are rciinired to he iu a form a|)proved by
thuBoiirdof Trade, if made in that form. 17 & 18 Viet. c. 101. ss. 9, 10.

722 pi'ovidrs for olTenees as to use of fornis; i.e., tliat if any person
ivrjivfi: assists in : or procures to lie forged, the seal, or any other dis-
liiiiruisliiiig mark of tlie Board of Xnule on any form issued by the
Uoiinl of Trade ; or (A) fraiuhdcjntiy alteis : or procures to be altered any
Micii form, tiuit person is {guilty of a misdemeanor.

(1) If a person, (a) when a form approved by the Uoord of Trade
iimler the 2nd Part of this Act, rccpiired to be usetl, uses without reason-
nlile cause a form not purporting to be a form so approved : or (A)
iniiits, sells, or uses any document i)urporting to be a form a|)proved liy
tlie Board of Trade, knowing the same not to be tho form approved for
llie time being, or not having been prepared or issued by the Board of
Trade, that person shall bo liable to a fine of 10/.

723. Where any of the following officers, nanulv, — Po\ver.i for

Any oilicer of tho Board of Trade, scoing Hint Act

Any conimissicmed officer of any of Her .Majesty's ships on '^'oi'Tl'i^il
full pay, ^ J ^ 1 ^.th.

Any British consular ofliccr,

The Registrar-General of Shiii^' ing and Seamen or his
assistant,

Any chief officer of customs in any pl.i'.' n Her Majesty's
(lominions, or

Any superintendent
lias reason to suspect that the provisions of this Act, or any law for tiio
liiiu' Ijoiiig in force relating to merchant seamen or navigation, is not
iiiiii|)lie(l with, tiiiit officer may (a) reipiire tlu! owner or master or any
of tlie crew of any British ship to produce any official log-books or
oilier documents relating to the crew or any member th(;reof in tlieir
resptctive po.s.session or control ; (f/) require any such master to pro-
duce a list of all persons on l;oard his shii), and take copies of the
official log-books or documents or of any i)art thereof j (c) iuuster the
irew of any ship ; and (d) sununon the master to appear and give
any cxjilnuation concerning the ship or her crew, or the official log-
liuoks or documents produced or required to be produced. (2.) If any
person, on being duly required by an officer authorized under this section,
fails, without reasonable cause, to produce to that officer any such official
log-book or document as he is required to produce under this section, or
refuses to allow the same to be inspected or copied, or impedes any
muster of the crew required under this section, or refuses or neglects to
give any explanation which he is required under this section to give, or
knowingly misleads or deceives any officer authorized under this section
to demand any such explanation, that person shall for each offence be
liable to a fine not exceeding 20/. 17 & 18 Vict. c. 104. s. 13.

724. Board of Trade may, at such ports as they think fit, appoint
cither generally or for special purposes a snr\eyor of ships, who may be
appointed either as a shipwriglit surveyor, or as an engineer surveyor, or
Bsboth. [^S'ee Ord. Louis XIV., 1081, translated in "Treatise of Sea
Laws," or " Dominion of the Sea," at p. 297.]

(2.) Board of Trade may appoint a Surveyor-General of ships for the
United Kingdom, and (3) may remove any surveyors of ships : fix their
remuneration ; and make regulations as to their duties.

I I

I'm-

jKK(.uj;!atm(t!?»f(i>'ji*;iui.iK!(!(

k-1

1000 57 & 68 VICT. c. GO.— POWER TO ALTER ACT.

[1891.

surveyor in
colonies.

(4.) A .surveyor of ships demanding or receiviufj any fee or gratnitv
otherwise than by direction of tlie Board of Tiwie is liable to u iin,;
of 50/. 17 & 18 Vict. c. 104. ss. 305-8.

725. Power is given to surveyors for i)nr[)ose of survcyin,;;; sliiiis to
go on board any steauisliipatall reasonable times. 17 & 18 Vict. c. loi
s. 30G, and ss. 15, 16.

726. Surveyors of ships are to make retin-ns to tlie Boiinl of Tnuk'
as to the build, dimensions, draiiglit, burden, rate of sailing, room lor
fuel, and the nature and particulars of machinery and iMiuiimients uf
ships surveyed by them ; and (2) the owner, master, and engineer of the
ship so surveyed shall, on demand, give to the surveyors all sucli infor-
mation and assistance within his power as they recpiire for the piiriioso
of those returns : the penalty for failing to give information and iissi.stanif
being (.'^) a line of 5/. for each offence. 17 & 18 Vict. c. 101. s. 321.

Appointment of 727. The Governor of a Bi-itish possession may appoint and remove
surveyors of ships within the limits of the possession, for any purpose-s of
this Act to be carried into effect in that possession.

728. Board of Trade may appoint any person as an inspi'ctor to miike
a report (a) as to accident or damage to a ship : (i) whether the pro-
visions of the Act have been complied with : (c) whether the hull ami
machinery of any steamship are sufficient and in good condition.

729 deals with the powers of such insi)ectors.

730. Penalty for obstructing inspectors in the exectition of iLcir
duty.

731. " All liglithouses, buoys, beacons, and all light duos anil otbcr
rates, fees, or payments accruing to or forming part of the Moreaniile
Marine Fund, and all premises or property belonging to or oci'upioil In
any of the General Lighthouse Authorities or by the Board of Traik',
which are used or applied for the i)urposes of any of the services for
wliicli those dues, rates, fees and payments are received, and all iiistni-
nients or writings used by or under the direction of any of the General
Lighthouse Authorities or of the Board of Trade in carrying on tbosi'
services, shall be exempt from all public, parochial, and local taxes,
duties, and rates of every kind."

732. All vessels used by any of the General Lighthcuise Authorities
or the Board of Trade are to be exempt in the United Kingdom from
harbour dues.

733 deals with registiaticr. of private code of signals.

734. An Order in Council may, when any foreign country (ic-ires it,
direct any provisions of this Act to apply to tlie ships of thateoinitry,iiiiil
to the owners, masters, seamen, and apprentices of those ships, wlien nut
locally within their own Government's jurisdiction, in the stnne mnnmr
as if those ships were British ships.

Exemption
from rates.

Power of Colonial Legislatures,

Power of 735. " The legislature of any British possession ma}', by any Act or

colonial Icgis- ordinance coniirmed by Her ]\Ii;jesty in Council, repeal wliollv or in piiit
latures toa'ier any provisions of this Act (other than those of the 3rd Pint tlieiwf
provisions ot ^\^\f.\^ ,.j.i,it,, to emigrant ships), relating to ships registercil in that !
possession ; but any such Act or ordinance shall not take eflect until tlic
approval of Her Majesty has been proclaimed in the possessiou, or until

LTER ACT. [1891.

the execution of tlieir

liy colonial
legislature.

1894.] 57 & 58 VICT. c. 60.— COL. COASTING REGS. 1001

such time thereafter as may be fixed by the Act or ordinance for the
purpose.

" (2.) Where any Act or ordinance of the Icgi.slature of a British
iwsses.siou has n'j)oali'd in whole or in part, as rospccts that possession,
auv provision of the Acts roptialcd by this Act, that Act or ordinance
sliiill have tlie same effect in relation to the corresponding provisions
of tliis Act as it had in relation to the provision repealed by this
Act." 17 & 18 Vict. c. 101. s. 517.

736. " The legislature of a British possession may by any Act or Rcgalution of
oidinaiice regulate the coasting tra(le of that British possession, coasting tmdo
subject in every case to the following conditions : —

" (a.) The Act or ordinance shall contain a susi)ending clause pro-
viding that the Act or ordinance shall not come into
operation imtil Her Majesty's pleasure thereon har been
publicly signified in the British possession in which it has
been passed.
" (b.) The Act or ordinance shall treat all British ships (including
the ships of any other British possession) in exactly the
same manner as ships of the British possession, in which it
is made.
" (c.) Where by treaty made before the passing of the Merchant 32 & 33 Vict.
Shipping (Colonial) Act, 1869 (that is to say before the *'• ^'•
13th ]\Iay, 1869), Her Majesty has agreed to grant to
any ships of any foreign state any rights or privileges in
reapect of the coasting trade of any British possession,
those rights and privileges shall be enjoyed by those ships
for so long as Her Majesty has alreatly agreed or may
hereafter agree to grant the same, anything in the Act or
ordinance to the contrary notwithstanding." 32 & 33 Vict,
c. II. s. 4.

737 deals with foreign places where Her Majesty has jurisdiction,
aud provides that where there is no consular olEcer, then such things as
may be done by, to, or before a consular officer, may be done, &c.. by
Hich oflicer as an Order in Council may direct.

738 gives power to alter Orders in Council made under this or any
ameiuling Act ; the new Order in Council being laid before Parliament
within one month, and published in London Gazette.

739. Where by this Act any notice, authority, order, direction or
otlicr communication is required or authorized to be given or made by
the Board of Trade or the Commissioners of Customs or the Gover.".';r
of ii British possession, or to any person not being an oflicer of su(!h
Hoard, or Commissioners, or Governor, the siuiie shall be given or made
iu writing. And (2) such notice may be transmitted by post.

740. Where a document is required to be published in the London
Gazette, it will suflicc if notice of it is published in accordance with the
(Statutory) Rules Publication Act, 1893, 56 & 57 Vict. c. 66. [i.e., that
a notice in the Gazette of the document having been made and Avhere
copies of it can be obtained is to be a sufficient compliance with the Act.]

741. " This Act shall not, except wliere specially provided, apply to
ships belonging to Her Maj(!sty."

742. The terms usetl in this Act are defined, and inter alia " a Colonial
Court of Admiralty " is to have the same meaning as in the Colonial
Courts of Admirahy Act, 1890, 53 & 54 Vict. c. 27 ; " chief officer of

I !

l\m

iiilp'^

1002

58 & 59 VICT. c. 34.— COL. BOUNDARIES.

[1895.

Application of
Act to certain
fishing vessels.

customs " includes the collector, superintendent, principal const ofliccr or
other chief oUicer of customs at each port; and " superintendent" siiail
so far as respects a British possession, include any shipping master or
other officer discharging in that possession the duties of a supeiintenckiit,

743. The Act extends to ships propelled by electricity or otlioi'
mechanical power, with such niodilicatioiis as tlie Board of Trade iiiav
prescribe.

744. Ships engaged in the -vvhale, seal, walrus, or Xewfoinidland end
fisheries .'ihall be deemed to lie foreign-going ships for tlie |)ui'pose of
this Act, and not fishing boats, with the e.\cci»tion of ships fiigaGii'd in
the Nenfoundland cod fisheries which belong to ports in Catmla tn-
Xewfoundland.

745 repealed certain Acts, the repealed Acts 1)eing given in Scbcdiilc
22, But sub-sec. (/) provided that " Nothing in this Act shallaffct tlic
Behriug Sea Award Act, 1891, and that Act shall have effect as if this
Act bad not passed."

746 saved the Chinese Passengers Act, 1855.

747 gives the title, i.e., " Merchant Shipping Act, 1891."

748. The Act came into operation on 1st January 1895.

The Schedules contain rules and regulations, as: 1st Schedule, furn:suf
mortgages, &c.; 2nd, rules for measurement of tonnage ; .'hd, fees for
measurement ; 4th, fees for examination ; 5th, regulations to be observed
re anti-scorbutics ; 0th, regulations to be observed as to aceoiuniodatiou
on board ship ; 7th, constitution of local marine boards ; 8th, re Idrth iit
sea ; 9th, fees for passenger steamer certifie.'ite ; 10th, regulations iis
to imniber of passengers on emigrant ships ; 11th, aceonuiiotlation of
steerage passengers ; 12th, water and provisi )ns ; 13tii, carriage cd'horsis
and cattle in enn'grant ships; 11th, forms under Part 3 (Piissciigcr inid
Emigrant Ship>) ; 15th, form for entry of fishing boats in register;
16th, fees for inspection of lights and fog signals; 17th, life-sav inj:
appliances — c^u-.r^Mttee ; 18th, precaution as to grain cargo ; IDtli, state-
ments in salvage by Her Majesty's ships ; 20th, fees and reuiuuLTation
of receivers; 21st, pilotagb rates ; 22nd, Acts repealed.

Alteration of
lx)undnries
of colony.

58 & 59 Vict. c. 34.

An Act to provide in certain cases for tlie Alteration of
the Boundaries of Colonies. [6th July 189o ]

BE it enacted by tlie Queen's most Excellent Majesty, by and with
the advice and consent of tlie Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the authority
of the same, as follows : — •

1, — (1.) Where the boundaries of a colony have either before cr

ueeii

after the passing of this Act been altered by Her Majesty the Q
by Order in Council or letters ))atent, the boundaries as so altered sbnll
be, and be deemed to have been from the date of the alteration, ibc
boundaries of the colony.

(2.) Provided that the consent of a self-governing colony sball !«■
required for the alteration of the boundaries thereof.

f,:,

1895,] 59 VICT. Sess. 2. c. 3.— CANADIAN SENATE. 1003

(3.) In this Act " self-governing colony " means any of the colonies
spfcilied in the schedule to this Act.

2. This Act may be cited as the Colonial Boundaries Act, 1895.

Short title.

S C H E D U L E.

Self-Govekning Cotoxiics.

Canada.

Newfoundland.

New South Wales.

Victoria,

South Australia.

Queensland.

Western Australia.
Tasmania.
New Zealand.
Cape of Good Hope.
Natal.

59 VICT. (1895) Scss. 2. c. 3.

An Act for removing Doubts as to the Validity
of an Act passed by the Parliament of the
Dominion of Canada respecting the Deputy-
Speaker of the Senate.

[pth September 1895.]

WHEREAS the Pavlianicnt of Canada have passed
an Act intituled " An Act respecting the Speaker
of the Senate," and providing for the appointment of a
deputy during" the illness or absence of the Sjieaker of
the Senate, and containing a suspending clause to the
effect that the Act should not come into force until Her
Majesty's pleasure thereon has been signified by procla-
mation in the Canada Gazette :

And Avhereas doubts have arisen as to the poAver of
the Parliament of Canada to pass that Act, and it is
expedient to remove those doubts.

Be it therefore enacted hy the Queen's most Excel-
lent Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority of
the same, as follows :

1. Tlie Act of the Parliament of Canada passed in the Confimmtion
session held in the fifty-seventh and fifty-eighth years of Act with
Her Majesty's reign, entituled *' An Act respecting the spTaker'of

Senats.

i ; |i

M '

!' I

1004 59 VICT. Sess. 2. c. 3.— DEPUTY SPEAKER.

[1895

Short title.

Speaker of the Senate," shall be deemed to he valid,
and to have been valid, as from the date at which tlic
royal assent was given thereto by the Governor- General
of the Dominion of Canada.

2. This Act may be cited as the Canadian Speaker
(Appointment of Deputy) Act, 1895, Session 2.

( 1005 )

APPENDIX B.

THE JUDICIAL COMMITTEE.

[The Acts compared with tho Revised Statutes.]

2 & 3 WILL. 4. (1832) c. 92.

[The whole Act, except sec. 3, repealed by S. L. R. Act, 1874, c. 35.
Sec. 3 to " thirty-three," and the word " that " wherever it occurs, re-
pled by S. L. R. Act, 1888, c. 57.]

An Act ^ for Transferring the Powers of the High Court
of Delegates, both in Ecclesiastical and Maritime
Causes, to Her Majesty in Council.

[7th Aug. 1832.]

3, It shall be lawful to and for every person who might heretofore,
br virtue of either of the said recited Acts [25 H. 8. c. 19. ; 8 Eliz.
c. 5.], have appealed or nuide suit to His Majesty in his High Court
of Chancery, to appeal or make suit to the King's Majesty, his heirs
or successors, in Council, within such time, in such manner, and
subject to such rules, orders, and regulations for the due and more
couvenient proceeding, as shall seem meet and necessary, and upon
siicli security, if any, as His Majesty, his heirs and successors, shall
from time to time by Order in Council direct ; and the King's Majesty,
Ills heirs and successors, in Council, shall thereupon have power to
proceed to hear and determine every appeal and suit so to be made by
virtue of this Act, and to make all such judgments, orders, and decrees in
the matter of such appeal or suit as might heretofore have been made by
His Majesty's commissioners appointed by virtue of either of the herein-
lufore recited Acts, if this Act had not been passed ; and every such
judgment, order, and decree so to be made by the King's Majesty, his
lieirs and successors, shall have such and the like force and effect in all
respects whatsoever as the same respectively would have had if made and
|)ronounced by the foresaid High Court of Delegates ; and every such
judgment, order, and decree shall be final and definitive, and no com-
luission siiall hereafter be granted or authorized to review any judgment
or decree to be made by virtue of this Act.

Powers of the
High Court of
Delegates
transferred to
tho King in
Council from
1st February
1833.

i\im

' This Act repealed 25 H. 8. c. 19.
and 8 Eliz. c. 5., the former of which
established the High Court of Dele-
gates. During the first age of the
colonies, 1606 to 1610, the Privy
Council both legislatively and execu-
tively .suijerintended the colonies.
Ill 1G40 an age of reform began, and
Parliament exercised Privy Council
jurisdiction (16 Cha. 1. c. 10. ; I

Chalmers' Opns. v. ; Scobell's Acts,
1649,c.21.p. 13). In 1660 [O. in
C. 4 Jidy and Ls.P. 1 Dec] the
king's ancient jurisdiction was
restored, and a Council of Trade
and Plantations was established.
This Council was abolished in 1674
[or 21 Dec. 1677], when the whole
affairs of trade and the colonies were
placed under a Committee of the

:i il

1006 2 & 3 WILL. 4. c. 92 —EARLY CASES IN P.C

[1832,

Privy Council. In 1G96 a Board
of Trade and Plantations was ap-
pointed to deal with the distress of
British Commerce ; and distress in
the colonies. Soon after I714 the
colonial Acts to be sanctioned be-
came very numerous, and a Standing
Committee was appointed. About
this time attacks were commenced on
the colonial charters. In IGOOthe
charter of Maryland was assailed.
In 1711 the Pennsylvania charter
was attacked. In 1717 the charter
of the Bahamas was questioned. In
1752 the charter of Georgia was
surrendered. By O.in C. 11 March
1752, the Lords Commissioners
were directed to be careful in the
selection of Governors, &c., and to
draw up draft Commissions, War-
rants, and Instructions for the same.
[Col. Off. Lib.] In 1770, on the loss
of the 13 American colonies, the
Board of Trade and Plantations
was abolished (1 Chalmers' Opns.
xiv. ; 22 Geo. 3. c. 82.). In 1786
[O. in C. 21 and 25 Aug.] a Com-
mittee of the Privy Council was
appointed to consider all matters
relating to trade and foreign planta-
tions. It ai)peared that the best
men would not act, and therefore
petitions to review the decisions of
this Committee were frequent.

Going back to the earliest period,
the jurisdiction of the Privy
Council seems to have commenced
by Admiralty cau.ses (17 Rich. 2.
1393-4; 3 Rot. Pari. No. 49,
p. 322) and also by prize appeals
under treaties, such as that between

Henry 7. and Louis 12. in 1498. See

12 Rymor G90 ; Liiido v. Itodnev
2 Douglas 01.3-010 ; The rnhiuV
2 C. Rob. 245. The Privy
Council also dealt with qiiostioiis
of boundaries [as in a ciis(; liko the
claim to the Marches of AValfsJ ;
the limits of the fens of Suttonj
parcel of the possessions of thi'
Bishop of Ely: tlie Queen of Swts'
design : the Essex disaster ; (uid
claims to an island, as the Earl of
Derby's claim to tlie Isle of Man.
A controversy between two pro-
vinces : and claims to a proviiu'e
[Lord Baltimore's in 1090], also
came before it: New Haaipsliire
case [Livius v. Wentworth], Bel-
knap's Hist. New Hamp. 347. This
case is said to have been heard
before the Lords of Trade 10 Ma\-,
and reheard before the Lords of
Committee of the Privy Coinieil,
29 July ; reported 20 Aug. ; O. in
C. 8 Oct. 1773: and that the judg-

nent was printed. Otlier early
.•uses wei'C an appeal from .lersev,

13 May 1572, Maeq. H. L. 080:
Gordon v. Lowther, from Barbados,
1720, 2 Ld. Raym. 1447 : Miigooiis
V. Dumaresque, ibid. 1448. Sve
also Lord Hardwicke, L.C, in
Penu V. Lord Baltimore, 1750,
1 Ves. Sr. 446 ; and the cases Xew
York V. New Hampshire, 20 July
1704, Belknap's New Hamp. 3:25:
Earl Cardigan's claim to the Island
of St. Vincent, 1704: The Jbissa-
chusetts Bay Co. v. The King,
1704 [the charter is to be seen at
Colonial Office Library], and Beck-
ford V. Wade, 1805, 17 Vesey 87.

3 & 4 WII-L. -i

c, 41.

Preamble and sec. 1, to the worr'..- o ;!.:^ same that," repealed hv
S. L. R. Act, 1890 (53 & 54 Vict. c. ..<3.' S. L. R. Act (No. 2), 1888
(51 & 52 Vict. c. 57.), repealed in sec. ;he words "the Lord Hij;h
Chancellor of Great liritain for the time being." And from "Lord
Chief Justice," where those words fir.st occur, to " bankruptcy." And
from " or held " to " Britain." And the words " and be it fuitlicr
enacted that," and "And be it enacted that," wherever they occur
(except in sec. 31), and the word "that" wherever it occurs with
reference to the introductory words so repealed. And, in sec. 31, the
words "and l)e it enacted." Sees. 1 and 30 amended l)y 50 & 51 Vict,

7TT

'rr

2 & 3 W. 1.
c. 92.

25 II. 8.

f. 19.

8 Eliz. c. 5.

Iji33.] 3 & 4 WILL. 4. c. 41.— JUD. COMMITTEE ACT. 1007

f "0. MS. 3, 4. Soc. 2 was repcnied by 53 & 54 Vict. e. 27. [ante,
p.902]. Sec. 5 was amended and repealed in part by 14 & 15 Vict.
( 83. s. 10, which made the qiionnn 3. Sees. 22, 25, 2(5, and 27 repealed
KS. L. R. Act, 18G1 (24 & 25 Vict. c. 101.). Sec. 28 repealed in part
K 6 & 7 Vict. c. 38. s. (i. Sec. 29 repealed by S. L. R. Act, 1875
i3S&39 Viet. 0. 6G).

iu Act for the better Administration of Justice in His " The Judicial
Majesty's Privy Council. [Ut/i Auffust ISSn.] fg^?'^" '^'''

TTTHEREAS by virtue of an Act passed In a session of Parliament
\y of the second and third years of the reign of His present
Majesty, intituled " An Act for transferring the Powers of the High Court
ot Delegates, both in Ecclesiastical and Maritime Causes, to His Majesty
iu Council," it was enacted, that from and after the first day of February
one thousand eight hundred and thirty-three it should be lawful for every
iierson who miglit theretofore, by virtue either of an Act passed in the
twenty-fifth year of the reign of King Henry the Eighth, intituled "The
Submission of the Clergy and Restraint of Appeals," or of an Act passed
in the eighth year of the reign of Queen Elizabeth, intituled "For the
avoiding of tedious Suits in Civil and Marine Causes," have appealed or
mnile suit to His Majesty in his High Court of Chancery, to appeal or
make suit to the King's Majesty, his heirs or successors, in Council,
within such time, in such manner, and subject to such rules, oi'ders, and
rfgiilations for the due and more convenient proceeding, as should seem
imetnnd necessary, and iijwn such security, if any, as His Majesty, his
lieiis and successors, should from time to time by Order in Council
direct : And whereas, by letter- ))atput under the Greiit Seal of Great
Britain, certain persons, ni. hers of His Majesty's Privy Council,
together with others, being judges and Barons of His Majesty's courts
of Record at Westminster, have been from time to time appointed to be
His Majesty's Commissioners for receiving, hearing, and determining
appeals from His Majesty's Courts of Admiralty in causes of prize : And
wlieieas, from the decisions of various Courts of Judicature in the J^ast
Jiulies, and in the plantations, colonies, and other dominions of His
Majesty abroad, an appeal lies to His Majesty in Council : And whereas
matters of appeal or petition to His Majesty in Council have usually been
lieard before a Committee of the whole of His Majesty's Privy Council,
wiio have made a report to His Majesty in Council, whereupon the final
jiiilginont or determination hath been given by His Majesty : And
whereas it is expedient to make certain provisions for the more effectual
hearing and reporting on appeals to His Majesty in Council and on other
matters, and to give such powers and jurisdiction to His Majesty in
Council as herein-after mentioned : Be it therefore enacted by the King's
most Excellent Majesty, by and with the advice and consent of the Lords
spiritual and temporal, and Commons, in this present Parliament as-
iombh'd, and by the authority of the same. [Tlie above repealed ; also
tiie following words in brackets.]

Tiie President for the time being of His Majesty's Privy Council, [the
Lord High Chancellor of Great liritain for the time being], and such of
tlio meuibers of His jNIajesty's Privy Council as shall from time to time
hold any of the offices fcdlowing, that is to say, the office of Loril Keeper or
First Lord Commissioner of the (ireat Seal of Great Britain, [Lord Chief
Justice or Judge of the Court of King's Bench, Master of the Rolls, Vice-
Ciianeellor of Eiif/lanrf, Lord Chief Justice or Judge of the Court of Com-
nioii Pleas, Lord Chief Baron or Baron of the Court of Exchequer, Judge
of the Prerogative Court of the Lord Archbishop of Cante^'bury, Judge of

! !

' ' £ ■ I

Certain per-
sons to form
a committee,
to lie styled
"The .TudiclQl
Committee of
the Privy
Couneil,"

i;*;^'rT»Mfrifii'iiiii(|jip;¥jiiji'UrM*.r!«i';j;ifffl

1008

3 & 1 WILL. i. c. 11.— PRELIM. REQUISITES.

[1833.

I Court of Admiralty, and Cliief Judge of the Court in Bnnkrnptevl

all persona, members of Hi.s Majesty's Privy Coinicil who

e been President thereof [or held the oOiee of Lord Chuncollor

All appeals
from sont6iico
of any judge,
&c. to Ix)
referred by
His Majesty to
the Committee,
to report
thereon.

the High (
and also

shall have neen i'resKieni tnereoi [or neid tne ouiee of Lord Chuncollor
of Great Jhitain], or shall have held any of the other olUccs hcnin-
before mentioned, shall form a Committee of His Majesty's said I'rivv
Couneil, and shall be styled " The .Judieial Conunittce of the Privy
Couneil " : Provided nevertheless, that it shall bo lawful for Ills
Majesty from time to time, as and Avheii he shall think (it, by liis sji'ii
manual, to appoint any two other persons, being Privy Couiicillors "to
be members of the .said Connnittee.

[50 & 51 Viet. (1887) e. 70., by see. 3, provides that the Judieial Com-
mittee " Shall inelude sueh meml)ers of Her Majesty's Privy CoiirKii as
are for the time being holding or have held any of thi; ollieos in flu.
Appellate Jurisdiction Act, 1876, and this Act described as liiirh
judicial offices." See these Acts, jooif.]

2, Repealed by the Colonial Courts of Admiralty Act, 1890. Sec
proviso to repeal mite, pp. 900-902.

3. All appeals' or complaints in the nature of appeals wlmtpvor
which either by virtue of this Act, or of any l»w, statute, or custom, may
1)6 brought before His Majesty or His Majesty in Council from or in
respect of the determination, sentencic, rule, or oi'der of any coiut, juil"(',
or judicial officer, and all such appeals as are now pending and uniieanl,
shall from and after the piussing of this Act be referred by His Mnjistv
to the .said Judicial Committee of his Privy Council, and sueh appeals,
causes, and matters shall be heard by the said Judieial Committee, and
a report or recommendation thereon .shall be made to His Majesty in
Council for his decision thereon as heretofore, in the .siuno maiuai und
form as has been heretofore the custom with res[)eet to nmtters ntVirod
by His Majesty to the whole of his Privy Couneil or a eommittci'
thereof (the nature of such report or recommendation being alwnys
stated in open court).

I' irj

' The time for an application to
be mode to the colonial court for
leave to appeal from a final judg-
ment is regulatt'd in every colony
by the charter of their coiu-ts of
justice : instructions to the Gover-
nor : Orders of Her Majesty in
Council : orby the colony'sown ordi-
nances. The limit of time ranges
from 14 days [West India Islands]
to six months [India], counted
from the day the judgment or
the decree complained of was pro-
nounced. (2) The subject-matter
of the appeal must be of a certain
value, running from 300/. in Bar-
bados, to, as in India, 10,000
rupees ; or concern some Civil
Right, Duty, or Fee. (3) Seciuity
to the satisfaction of the colonial
court must be given for the due
prosecution of the appeal; and to
meet any costs ordered by the

Judicial Committee. (4) E.xppn-
tion may be stayed on terms: or
the respondent may be onleivd to
give .security. (5) The appeal nubt
be prosecuted within a yo.'U'. (())
WHien any colonial court allows ,nii
ap[)eal to the Privy Coiuicil, tiic
registrar or officer having tiio
custody of the records of tho colo-
nial court is to seiul with all df-
spatch one certified eoi)y of the
record in each cause to the rrgistnir
of Her Majesty's Pi'ivy Conncil.
Regidationsas to this are printed, it
length in the London G(izette,Ms
8, 1853, p, 1911, and 31 .Alaicii
1855 ; and (7) on .special gromuls
leave nuiy I)e given to appeiil
from interlocutory jmlgment.s. (8)
The Judicial Committee may give
special leave to ajjpeal. See such
cases, ante, p. 410 e/ seq.

I have looked up the lustriic-

ISITES. [1833.

3urt in Bankruptcy]
'rivy Council, who
of Lord Chancellor
)tlu'r offices hereiii-
lajosty's sail! Privy
iiittee of the Privy
)0 lawful for His
link tit, hy his sif;u
I'ivy Councillors, to

at the. Judicial Com-

y's Privy Council ns

af the, olVices in the

described as high

ilty Act, 1890. Sec

)f appeals whatever,
ituto, or custom, may
1 Council from or in

of any court, judge,
[)ending and unheard,
srred by His Majesty
:!il, and such appeals,
licial Committee, and
a to His Majesty in

the same manner iiiid
;ct to matters referred
nicil or a conunittec
idation bcinj,' always

umittee. (4) Exccu-
staycd on terms: or
int may be ordered to
. (5) The appeal must
d within a year, (0)
olonial court allows an
10 Privy Council, the
• officer having tlio
he records of the colo-
< to send with all do-
certified copy of tiic
ill cause to the registrar
ijesty's Privy Council.
as to this are printed at
e London Gazette,M\
1911, and 31 March
(7) on special grouwls
be given to apiieal
acutorv judgments. (8)
al Coinmittce may give
e to appeal. See such
p. 410 et scq.
looked up the Instruc-

1833.] 3 & 4 WILL. 4. c. 41.— APPEALS FROM COLS. 1009

tionstoGovrnors: Chnrter.s: Ordi-
nances : and Orders in Council
ref<[)cctively of the following colo-
nies, and '* P." means that a peti-
tion for leave to aj)peal must be
presented to the colonial court
within the time given : and " V."
means that the value of the subj(>ct-
niattcr of the nj^peal must be o\er
the amount given.

[The following are notes which
may be useful in ])utting enquirers
on the track ; but in any question
of difficulty it would be well to
personally see Mr. George Pearson
Whoeler, of the Judicial Depart-
ment of the Privy Council, Down-
ing Street, who has been there for
just twenty years, and has the
practice by heart.]

Aden, Gulf of, through Bombay.
See Bengal.

Africa (Co.itinent and Islands),
V. 100/., or Secretary of State's
order. Appeal may be to any
prescribed S. C. of any African
[wssession of H. M. and S. C. of
Bombay [but not Cape Colony nor
Xatfll until provision is made by
the legislatures], and thence on
•«me conditions and amount as
any other decision of the same
court to the Judicial Commit-
tee. Consular Courts O. in C.
15 Oct. 1889, ss. 21, 82, Lou. Gaz.
ooo"; 18 H.'s T. 1. This O. in
C, excludes any place within the
territorial jurisdiction of the courts
of any African possession of
H. M., or of the courts of any
possession of any other non- African
[lower, and the territories of
Morocco, Tunis, Liberia, Zanzibar,
South African Re[)ublic, Orange
Free State, and places controlled
by Egypt, and any place in v.'hieh
any other O. in C. under the
Foreign Jurisdiction Act is in
force. But may extend to H. M.
Protectorate of Niger Districts, or
future protectorate, or to territories
under the International Association
of the Congo, and under the
Oovernment of the Free States
5«hject to the Berlin Convention
of IG Bee. 1884. See therefore as

S 2340.

to P. and V. West African Settle-
ments {Sierra Leone), Gold Coast,
and Bombay {Bengal) ; also O. in
C. 17 July 189;j, St. R. 308:
"Natives of any protectorate of
H. M. which is outside any local
jurisdiction constituted under the
Order of 1889 .shall, when within
that local jurisdiction, be deemed to
be British protected persons within
the r caning of that Order." Sec
O. in C. 28 June 1892, ForL:<jnf .'s
Justiciable, St. R. 48G.

Ajmere, same as Benr/al. Cert,
of Commr. that s. 590 of C. of C.
P. xiv. of 1882 is complied with.

Antigua. See Leeward Is-
lands.

Australia.— N. S. Wales, P. 14
days, V. 2,000/. Ch. of J.
1.'} Oct. 182.3, St. of N.S.W.,
pp. 2193, .33lH. But by O. in C.
9 June 18G0, appealable value is
.'jOO/. And the Judicial Committee
wotdd admit an appeal the sub-
ject-matter of wdiich is over 500/.
See also CI. Col. Law, 019, G3G.
Queensland, P. 11 day.s, V. 500/.
O. in C. 30 June 18G0 ; 24 & 25
Viet. c. 44. An a[)peal as to a
vacancy in the Legislative Council
is given to Her Majestv in Coun-
cil, 31 Vict. (Q.) No.' 38. s. 24.
South Australia, P. 14 days, Y.
500/. : Laws of South Australia,
1855-6, No. 31, s. 19, p. 202. See
also O. in C. 9 .Tune 18fiO, super-
seding Local Act, 7 Will. 4.; CI.
Col. Law, 725; I & 5 Will. 4.
c. 95.; 5 & G Vict. c. 61.
Tasmania, Van Diemcn'sLand,V.
14dav,s, V. 1,000/. Ch. J. 4 March
1831 ■; 9 Geo. 4. c. 83.; CI. Col. Law,
653, GGl : but O. in C. V. 500/.
Victoria, the old Port Phillip, se-
vered from N.S.JV., 13 & 14 Vict,
c. 59. P. 14 days, V.500/. O. in C.
9 June 18G0;'4 Vict. St. p. 2701.
Western Australia, P. 14 davs, V.
500/. 24 Vict. No. 15, s. 29; St.
of W. Australia, p. 52.

Bahamas, P. 14 days; CI. Col.
Law, 378, gives V. 5(X)/. ; but see
1 Bah. L. p. 224.

Barbados, P. 14 days, V. 300/.
Royal Instructions ; CI. Col. Laws,

p yy^

t ■ :■

■j ■

i 1

ill

«i

ili^?

^"r"i'5'"^"^ttiiif ^'^'^f j1''^j

ufKiirjiiMt^rsifi;

1010

3 & 4 WILL. 4. c. 41.— APPEALS TO P. ('.

[iKi.l,

If;

■vi

193. Sec 1 Bar. Law 38, Wind-
ward Islands Couit of Appeal Aet,
31 January 1857.

BasHtoland disaiine.xed, but
Cape of Good Hope luw to bo in
force, Pro. 1881.

RechnanalntuI Proterlornte. —
North of B. B., P. 11 (lavs, V. rjOO/.
See for old boundaries Os. in C.
27 January 18H5, 17 H.'s T. '27 ;
30 June 1890, St. R., 18 H.'s T.
156. These revoked l)v O. in C.

9 May 1891, 19 H.'s 'W 30, n;ave
the limits as " The parts f)f South
Africa bounded by Britisli Beclni-
analand, the Gerninu Protectorate,
the rivers Chobe and Zambe.si, the
Portuguese ])ossessions, and the
South African Republic." Sec. 7
gave courts of B. B. as to matters
occurring within the limits of the
order the same jurisdiction, civil,
criminal, original, and ap»ellate, as
they possess in respect to matters
occurring within B. B., and appeals
therefrom may be had and prose-
cuted as if the judgment had been
given under the ordinary jurisdic-
tion of the court. The B. B. O.
in C. gave a direct appeal to P. 0.
See British Bechnanaland.

Bengal, P. G months. 13 Geo. 3.
c. 63. s. 18 ; Charter of Fort Wil-
liam, 26 March 1774; Rules and
Orders, S. Ct. Bengal, pp. 30, 31.
V. by charter 1,000 pagodas, tlie
value of which was 3^ Rs. (Kelly's
"Cambist." pp. 88,90), the .sicca
rupee being then worth about
2.«. Qd. Now petition for leave to
appeal to be presented within six
months, V. 10,000 Rs. ; O. in C.

10 April 1838 ; Letters Patent,
constituting H. C. 14 May 1862,
re-enacted in O. in C. 28 Dec.
1865, were subject to the rules
then in force ; thus the time in tlie
charter is brought in. With re-
gard to the following, the Letters
Patent, as regards appeals, were
identical : Bengal, Madras, Bom-
bay, North - West Territory,
Singapore, and Malacca. The
L.s P. also gave power to the
High Court in civil causes to allow
an appeal when it thought the ca,se

in question was one fit for un
appeal; and in crimiiml appfiils
when a point of law had liccn re-
served ; and the High ('(.ini (.(n,.
sidered the point ,vas one tit Utv
appeal. [See llics^ Lcltcis Patent
in "O.s in C. 180'tJ," in tlic jmut
Temple.] As to the diiiitiTs of
Bomliav and ?dadras, sec for tlii>
latter, ■" Clir.rtiTs li. ft, Mnd,"
pp. 109, 1 iO, and as to the lornioi'
it is as near as may lie a tninscripi
of the charter of U'^nuial. Scu also
Code of C. P. xiv. of 'l8S'J,ss 595-
599; 21 Geo. 3. c. 70., and Regu-
lations xvi. s. 1797; 37 (reo. ;i
c. 112; 21 & 25 Vict. c. It) I; Linii-
tation Act xv. of 1877, s. (i : C'iiow-
dry I'. Mullick, 1 Moo. Ind, Ai)|i,
p. 3(51 : Nathoobhoy Raiadass c.
Mooljce Madowdass, 2 ISloo. Jnil,
Ap|). p. 177; East India Coy. r.
Syed Ally, 7 Moo. Ind. A pp. bfiS,

Berbice. See British (iniami.

Bermuda, P. 20 davs, V. fiom
Ct. Error oOO/., from Clmii, Ct. P.
14 days, 300/. Beruitula Laws,
Act 1814, s. 9, and Act 1870, Xo,
382, respectively.

Bombay, P. 6 months, V. 10,000
Rs. Charter and Letters hit. 28
Dec. 1805. See Beng(d.

Borneo. See Straits Settle-
ments.

British Bechnanaland. Ap-
])eals direct from Chief Magi.*.,
P. 14 days, V. 500/. 50, 51, ami
52 of Cape Ch. of Jns. to ajiply,
Appeals to he allowed to H. M. in
C. in all cases in which appeals arc
allowed from S. C. Cape of Good
Hope. B. B. Procl. 1885, 1889,
l)p. 15, 43. Laws in force in Cape
Colonv proclaimed in H. B,
6 Oct.' 1885. Ibid. No. 2, 1885.
and No. 9, 1886. B. B. aniie-^ed
to Cape Colony, 9 Nov. 1S95.

British Central Africa Pro-
tectorate (late Nyas.salan(l).— Xew
name, F. O. letter 22 Feb. 1893,
19 H.'s T. 8.

British Columbia. V. Probabiv
300/., same as Vancouver.

British Gniana, inelndos Ber-
bice, Demerara, Esseqnvlio, P. M
days, V. 500/. O. in C. 23 April

r'' p

1833.

3 & i WILL. 4. c. 41 —APPEALS TO P. C.

1011

m \

\s one fit for iiu
n criiniiiiil iqipuuls
if law liiid liccii re-
e Uifjli Ciiiirt ('(Jii-
liiit .viis tiiii' lit Uiv
tlii's* Lctlfis I'ati'ni
I8(ii3," ill till' Inner

to ihc cliiirtcrs of
TJmlnis, see for tlw
tcrs H. ("t. Mail."
nnd as to llu' former
s may lie a tnmscript
of li'Mijial. See also

xiv. of 18S2,ss.5!)5-
. 8. ('. '()., and l{ei;ii-
». 1797 ; .'57 (too. I).
25 Vi«'t.c. 101; Limi-
. of 1877,s. ():Cliow-
k, 1 Moo. Ind. App.
hool>hoy Ranidass i:
ilowdass, 2 Moo. liid.

; East India Coy. r.
■ Moo. Ind. A\)\). 5(i8.

Sec British (Iniaiia.
, P. 20 davs, V. from
)()/., from Clmn. Ct. P.
00/. Bermuda Laws,

9, and Act 187(), Nu,

P. o'lnonths.V. 10,000
>r and Letters Pat, 28

See Bengal.

See Straits Settle-

BechiiaualaiKl. Ap-
(t from Chief Magis,,
s, V. 500/. 50, 51, ami
> Ch. of Jns. to apply.
bo allowed to H. M. in
sps in which appeals me
om S. C. Cape of Good
B. Procl. 1885, 1889,

Laws in force in Cape
iroclaiuied in H. B.
^5. Ibid. No. 2, 1885,
I, 1886. B. B. anne-d
olonv, 9 N"ov. 1895.

Central Africa Pro-
late Nvassaland).— ^ew
O. letter 22 Feb. 1893,

a
'Columbia. V. ProbaWv
le as Vancouver.

Guiana, includes Bet-
erara, Essequcbo, P. H
500/. O. in C. 23 April

ami 20 June, 183) ; CI. Col. Law,
271, 280 ; 1 Laws B, G. 35.

British Hontluras. See Iloii-
(hiras.

British New Guinea, in civil
actions V. 100/,; in Admiralty
actions irrespective of vahu? ; an
iippeal is {^iven to S. C. Queens-
liiiul, Brislmne, and thence to
P. C. in the same manner as any
otiier decision ot such Court. O.s
ill ('. 1888, Par. Pap. [C. 5664] ;
IHH.'s T. G97; 21 Nov. IHiil
St. K. 23. See Australia.

British North Borneo. S'c
Sirait Settlements.

liriniei {Borneo), P. 15 dnvs,
V. 500/. from S. C. Straits Settle-
ments. O. in C. 22 Nov. 1890,
art. 64 ; St. R. 685.

Burmnh, appeals from lion-
ijoon, V, 10,000 Bs. See Benr/al.
(Vit. from Recorder that s. 596 of
C.ofC. of P. xiv. 1H82 complied
with.

Canuda. .Sj). leave See the
Piwiiices. 54 Vict. (Can.) e, 6.,
appeal allowed to P. C. on finnn-
liiil awards.

Cape of Good Hope, P, 14 da^ s.
V, 50(1/.' CI, Col. Law, 487; St,
Liw Cape, 1714 to 1853, [). 220.
Ceylon, P, 14 days, V, 500/,
(.'liarter of tlu.stice ; CI, Col, Law.
503.

i'hina, Japan, and Corca,
tlinuigli S. C. Shanghai, whicli see.
Constantinople, S. C. C, See
Tiirkei/.

Consular Courts, generallv P,
15 (lays, V. 500/. O, in C.
27 January 1860, See infra and
Foreign Juri.'idiction Act, 1890,
post.

Cored, through S, C. Shanghai.
O.iuC. 26 June 1884, 17 H.'sT.
2H2| 0. in C. 3 April 1886, Lon.
Gaz. 1655.

Clients, P. 14 days, V, 500/.
O.inC, 15 July, 1881, Lon, Gaz.
3589; O. in C. 30 Nov. 1882, art.
41,18 H.'sT. 327. See CO. ami
Laws, 1878-92, p. 42.

Dominica. See Leetcard Islands,
or may be direct. See Antigua
M>^, 1864, p, 284,

£ast Indies. See Bengal.
Egypt, P, 15 days, V. 500/,,
from H, B, M, C. C, to S. C. C.

C'onstantinojjh', and after a hearing
liefore the jiidfiv ami additional
judge an appeal lies to P. C, O.
in C, 10 Nov, 1866; O, in C.
12 Dee. 1873; 14 11, 's T,, 561,
617; and O. in C, 8 March 1895,
No, 139, See Turkey.

Falhlund Islands. Appeal from
Magis. Ct, to Governor in C, ; P.
14 days, nnd V. 100/, Ord, 1853,
No, 7 ; F, Islands Laws, 1884.

////, P, 14 days, V, 500/, O,
in C. 22 February 1878 ; Fiji Ord.
1877-8, See also'o, in C, 15 March,
1893; St. R, 312.

Fort JVilliani. See Bengal.

Fort St. George, Madras. See
Bengal and A/adras.

Gambia, through App. Ct,
Sierra Leone. O, in C-, 24 Nov,
1891, St, B, 21. See H'esl
African Settlements.

Gambia Territories, adjacent.
See (), in V. 23 Nov. 1893, St.
B. 311,

Gibraltar, P, within 14 days, V.
7,500 pesetas, or 300/,, or, if less,
leave is in the discretion of the
Court. Ch, of Justice, 1 Sept, 1830;
CI. Col. Law 688 ; Gib. Laws 1888,
ss, 40-45. p. 512; and O, in C. 17
Nov. 1888, art, 42.

Gold Coast, P, 14 days, V. 500/,

0. in C, Oct, 23, 1877,' Lon. Gaz,,
5850,

Gold Coast Territories, adja-
cent to, O, in C, 29 Dec, 1887 ;
17 H.'s T. 127. Appeal to Gold
Coa.st, which see.

Grenada. See Windward Is-
lands.

Grenadines. See Ibifl.

Griqualand West. Appeal
direct from High Court, Ordinance
No. 9 of 1875,'or through theS, C,
Ca^je, whicli see. Gri. West Laws

1. vol, 13. ; 2, vol. 163, Annexed
to the Cape, 1880, by Act 1877,
No. 39. But Van Zy'l, J.P, Cape,
p. 527, says there is only one
appeal, i.e., through the S, C,
Cape Colony.

Guernsey, V. land 10/, a ^ear,

3s 2

■'

1012

3 & 4 WILL. 4. f. 41.— APPEALS TO P, C.

[1H33.

or peiHOualty of 200/. O. in C.
13 May 1S23; CI. Col. Law, 70«.

Honduras, British, P. within H
(lays, V. 500/., tlirough Iho S. Ct.
Jamaica, but may a|i|)i'al direct.
Briti.sh Honduras Laws, pp. 26,
671; CI. Col. Law 3*^7; 44 & 45
Vict. c. 30. O. in C. 30 Nov. 1HH2.

Halifax'. Vieo-Admiraltv Court.
43 Geo. 3. 1813, c. 00.

Honq Kong. lastruction.s to
Lt.-Gol-., 23 Dec. 1H45 ; .fur. (for
C. and J.) to cea.st>. O. in C.
0 March 1S65, 8. 100; 12 H.'.s T.
310.

Isle of Man, P. 0 inontlw. Lox
Scriptn, 270; Mill. 245 ; L M. St.
130, 107.

Jamaica, P. within 14 <layH, V.
300/. O. in C. 14 April 1851,
Lon. Ga; . 1039.

Japan, P. 15 days, V. $2,500.
O. in C. 9 March 1865, as altered
by O. in C. 14 Aug. 1878, creating
Her Britannic Majesty's Court for
Japan, 12 & 14 H.'s T. 281, 246.
Appeals through S. C. Shanghai.

Jersey (Channel Islands). V.
at time of judgment, V. land 51. a
year, personalty 80/. ; or real pro-
perty 5 livres tournois a year, per-
sonalty 300 livres tournois; Lo
Cras' Laws, 83 ; Code of Laws, 168.

Labuan. See Straits Settle-
ments.

Lagos. Separate col. L. P.
13 Jan. 1880. P. 14 days, V.
500/. O. in C. 5 July "1889;
Lagos Laws, 953.

Lagos Territories, adjacent.
O. in C. 29 Dec. 1887; 17 H.'s
T. 128.

Leeward Islands, P. 14 days,
V. 300/. O. in C. 8 June 1854.
The.se colonies include Antigua,
Monserrat, St. Christopher, Nevi.t,
Dominica, and Virgin Islands.
Federated for general government
purposes in 1871. 34 & 35 Vict.
c. 107. Right to appeal from the
Court of Appeal was given by 13
& 14 Vict. c. 15. s. 6 on such terras
as O. in C. shall direct.

Madras. Charter, 1800. P.
6 months, V. 10,000 Rs. Letters
Patent, 28 Dec. 1865. See Bengal.

See Straits SettU.

Malacca,
nunts.

Malta, P. 14 days, V. 1,(XK)/.
Charter Justice, IH Dec. ISJ4.

Man, Isle of. Sw. /.sir, ,U'..
Manitoba. O. in ('. ; OH' c',iii
Gaz. Ap. .30, 18!)2, p. 1>()H. \\
within 14 days, \. ;U)0/.

Mashonaland, sanu^ as next.

Matabeleland.~-U V. 100/, can
appeal to High Coin-t, and from
H. C. to S. C. Cap(. Culou)',
Thence to P. C. in the .siimc
manner and on thesuine conditions
as S. C. appeals. O. in C. 18 Jiilv
1891, St. R. 1.33.

Mauritius, V. 14 diivs, V. 1,000
piastres, or 1,000/. "t'li. of ,J
13 April 1831; CI. Col. Law.
580, 594.

Monserrat. See Leeward Is-
lands.

Morocco, through S. C". (iilnal-
tar. O. in C. 28 Nov. lS8i).
art. 105. No Crini. App. witiiout
leave, art. 44; 18 H.'s T. 871,
Lon. Gaz., 7103.

Muscat, through S. C. Bombay.
See Bengal.

Natal, V. 14 days, V. 500/.
Natal Laws, 1843-70, Vol. 1.
p. 220 ; Vol. 2 p. 1358 ; 0. in C.
19 July 1870.

Nevis. See Leeward Islands.

New Brunswick, P. 14 davs,
V. 300/. O. in C. 27 Nov.
1852 ; Lon. Gaz., p. 3575.

Newfoundland, V. 500/, Ct.
of Jus., 19 Sept. 1825 ; 5 Ooo. I.
s. 20.

V Guinea. See British
N. G.

New South Wales. See Aus-
tralia.

New Zealand. P. within 14cl«ir
days, V. 500/. O. in C. Nov. 30.
1804; O. in C 10 May 1871;
N. Z. S. Ct. Practice, p. 204.

Niger Protectorate. F. 0.
Letter, Lon. Gaz., June 5, 1858,
p. 2581. See Africa.

North-West Territories {Can).
O. in C. Can. Gaz. xAIarcii 5, 1892,
p. 1040. P. within 14 days, V.
300/.

North- Western Provinces {In-

c. 07.

'TffPT

I833.J

3 & \ WILL. t. 0. tl.— APPEALS TO P. C.

1013

i "lays, V. I,(HH1/,
, IH Di'c. 1821.
'. Sen fs/v, ,\;(!.
O. in (". ; OIV. (■„„,
1H!)2, p. 20 n. 1'.

, V. ;u)0/.

(I, snww UH iic.\t.
i</.— If V. 100/. can
h Court, and from
C. CiijH! Colony.
C. in tlic siimc
tho siiinu conditions
s. O. in C. 18 Jidv

'. 11 (lav.s. V. t.OOO
,000/. "ch. of J..

1 ; CI. Col. Law,

Seo Lepifiii'tl Is-

iroiif^li S. V. Oilmil-

L'. 28 Nov. ISHi).
Crini. App. witiioiii
; 18 H.'s T. 871.

i3.

ough H. C. BoMibny,

14 (lav.s, V. 500/.
1843-70, Vol. 1.

2 p. 1358 ; O. in C.

p Leeward Islands,
sivick, P. 14 (lavs,
). in C. 27 Nov.
il-iiz., p. 3575.
and, V. 500/. Ct.
spt. 1825 ; 5 Geo. I.

•nea. See British

h Wales. See Aus-

Did. P. witliin 14 clear
/. O. in C. Nov. 30.

C IG May 1871;
Practice, p. 204.
rotectorate. F. 0.

Gaz., June 5, 1858.

3 Africa.

St Territories (Can.).

. Gaz. March 5, 1892,

within 14 days, V.

stern Provinces {In-

dia}, P. within 0 months, V.
lO.lXH) Hs., subject to Miicii ruh'S
.indordcrs as arc in force. Letters
I'litent, 17 March iHCifJ. Sue
Bengal.

Xuia Scotia, P. 14 (la\H, V.
300/. O. in C. 20 Mar(4i lH(t3.

Xi/assn/antl, to he known as
British Central Africa Protec-
torate. F. O. L. 22 Feb. 1HI)3;
St. IJ.

Ontario, V. »4,000. Ante, pp.
396,399. 64 Vict. (Ont.) c. 2.,
appeal allowed to P. C. on tiiuinciiil
matters.

Ottoman Dominions. See Titr-
ky.

Oiidfi. Siiniu as Ajmcre and
Bengal.

Pacific Islands. Sen IVestern
Pacific.

Persia, P. 15 days, V. 500/.,
from C.-G. C. O. in C. 13 Dec.
1889, art. 230, Lon. Gnz. 7450 ;
IH H.'s T. 945 ; O. in C. 3 Oct.
1895 ; St. 11. No. 408.

Persian Coasts and Islands,
through H. C. Bombay. O. in C.
13 Dee. 1889, arts. 23, 28 ; Lon.
Gnz. 7459; 18 H.'s T. 1024.

Pondoland, annexed to Cape.
0. in C. 7 June 1894.

Prince Edward Island, ante,
p.39(J. R. Ins. 13 Dec. 18.38.

Prince of IFales Island. See
Straits .Settlements.

Punjab. Same as Ajmere and
Bengal.

(Quebec (Low. Can.), V. 500/.
Ante, p. 397. 54 Vict. (Que.)
c. 4., appeal allowed to P. C. on
financial matters.

Queensland, P. 14 days, V. 500/.
See Australia. O. in C. 30 June
1860.

Bodrigues. See Mauritius.

St. Christopher. See Leeward
Islands.

St. Helena, P. 14 days, V. 500/.
Security for costs to be entered
into within three months. See O.
in C. 13 Feb. 1839; Par. Pap.
1857-8, No. 388.

St. Lucia. Sec Windward
Islands.

St. Vincent. Ibid,

Sarawak [ liorneo]. See Straits
Settlements.

Si'i/rhetles. See }^iuritius.

Shanghai, P. lu dny.s, V.
S2,5(X). Security for costs within
one month. Di.seretion in tho
court to su.spend execution. O. in
C. 9 March 18U5, s. 131 ; 12 H.'s
T. 281,311.

Siam, P. within 15 days, V.
500/. O. in C. 28 Nov. 1880, s.
04; 18 H.'s T. 1092. Through
Straits Settlements.

Sierra Leone and Gambia, See
West African Settlements,

Somali Coa.it and Gulf of Aden,
through S. C. IJombay. O. in C.
13 Dec. 1889; 18 H.'s T. 91.

South Australia. See Aus-
tralia.

Straits Settlements, P. witlu'n G
months, V. .Sl,5(>0. Ordinnnco No.
12 of 1879, 8. 41. They include
Singapore, Malacca, Labuan,
liorneo [British North Borneo,
Brunei', and Saratcah], Prince of
Jf'ales Island. [See 37 & 38
Vict. f. 38.; 28 & 29 Vict. c. 115.;
and 21 & 22 Vict. c. 106.];
Siam included by Foreign Juris-
diction Act, 185G (19 and 20
Vict. c. 113.) and Chiengmai,
Lakon, and Lambouchi included
by O. in C. Lon. Gaz., 4 July
1884, p. .3049.

Tasmania. See Australia,

Tonga. See Western Pacific
Islands, and Fiji.

Trinidad and Tobago, V. 500/.
[Pro. 19 June 1813] ; O.'s in C.
April 23 and June 30, 1831.

Turkey. — Constantinople is the
S. C. C, and under Foreign Juris-
diction Act, P. within 15 day.s,
V. 500/. O. in C. 30 Nov. 1864 ;
O. in C Dec. 12, 1873 ; 14 H.'sT.
557. Security for costs to be given
within one month from the filing
of the motion paper for leave to
appeal ; then, and not otherwise, the
S. Consular Ct. shall give leave to
appeal. In other cases the Court
may give leave to appeal if it con-
siders it just and expedient to do
so. The Order of 1873 includes
Adrianople, Brussa, Burgas,

umii

Lr.fj:!?,^!?^^

1014

3 4 4 WILL. 4 c. 41.— APPEALS TO P. C.

[IH33.

Dardanelles, Enos, GalUpoli,
Ghio, Ineboli, Lemnos, Panorma,
Rhofies, Ro^^osto, Egypt, and ex-
tended by O. in C.'.3 May 1882,
Lon. Giiz. 2209, to seas of AzofF,
Adriatic, Ejjcan, or Black Seas,
and Mediterranean. Tiie Otto-
man Dominions (Courts) Order
(O. in C. 8 March 1805, ?fo. 1.30,
Lon. Gaz. 151.5) gives si i-ehearing
before a judgi^ and additional
judge, except for Egyptian cases,
and then an appeal to P. C.
Egyjrtian a]) pea Is are to be heard
before the judge and additional
judge, and then<.'e to P. C. See
Egypt.

Turks and Critcos Islcnids were
severed from the Hahaman and
given to Jainaicd. Charter, 1848 ;
O. in C. 187.S, and .36 Vict. c. 0.
P. within .30 days. Laws of Turks
and Caieos Fslands, p. 80.

Uganda ProtectovKte, com-
prising Vsoga, Uiiyoro, Ankolt,
ilohi. r. O. L. 18 June 1804.

Vniiconrcr Island, now part of
Britixh Columbia. By O. in C.
4 April 185(5, it was P. 21 days,
V. 300/.

Van Dieiiicii's Land. See Aus-
tralia, Ta.^mania, and CI. Col.
Law, 653, 661.

Victoria. See Australia.

Virgin Islands. See Leeward
Islands.

West African Settlements. —
Sierra Leone and Gambia. As
to Sierra Leone, P. within 1 1 days,
V. 300/. J Ch. of J. Oct. 1821
gives V. as 400/. See O. in C.
26 Feb. 1867. Territory adjacent
to: O. in C. 24 Aug. 1895; St.
R. No. 397; Laws of Gambia,
pp. 308, 310; and O. in C.
24 Nov. 1891, St. R. 24 ; African
Order, 15 Oct. 1889, Lon. Gaz.

5557. Application of FinvUrn
Jurisdiction Act to Old Cal'dmr
Bonny, Cameroons, Nf.w Cidahar,
Brass, Opnro, New Bnnim, imii
Benin Rivers. See Africa.

West India Islands. See
fVmdward and Leeward Idanih.

f'Vestern Australia. .See .Ins-
tralia.

Western Pacific, J'
V. 500/., througii S. C

11
Fiii.

:iy>,
, O.s
in C. 1877, 1870, 1880; 14 \{\
T. 871, 1245; 15 H.'s T. 752.
The.se O.s in C. are consolidnted in
O. in C. 15 March 1893, St. \\
312, 341; 38 & 39 Viet, c 51,
'J'hey inclu'lo Friendly, Naviga-
tors [^ul>ject to Samoa Herliii
Order, 14 June 1889], f';i(()/(,
P/aeni.v, Ellice, Gilberts, SoIohkih
[parts not within German jurisdic-
tion], and Santa Cruz Islands.

Windward Islands inelmle
Barbados, Grenada, Grenadines,
St. Lucia, and St. Vincent.
P. 14 days, V. 500/. (! .<;: 7
AVill. 4. c. 17. s. 12. S-e Tar.
Pap. 23 April and 20 June 1S,32.
No. 432. ^7. Lucia, V. 300/.
Code of Civil Procedure of St.
Lucia, 1881, p. 166. The right
has been given to appeal from
S. C. »S^/. Vincent in a case dealing
with land taken by the AVar
Dept. St. Vincent Laws, 18GI,
398. Ct. of Appeal establishwl
by 52 & 53 Vict. c. 33.

Witu Protectorate. Adin. by
Sultan of Zanzibar. O. in C.
31 July 1893; 19 H.'s T. 14.

Zanzibar. See Bengal (Bom-
bay). Ind. law in force. O. in
C. 29 Nov. 1884 ; 17 H.'s T. 1092,
Lou. Gaz. 5649.

Zululand, from Chief Magis. to
P. C. Pro. 21 June 1887, art. 30;
18 H.'.s T. 778.

His Maje.sty
may refer any
other matters
to Committco.

4. It shall be lawful for His Majesty to refer to the said Juilicial
Committee for hearing or consideration any such other matters whatso-
ever as His Maje.sty shall think fit, and such Coii.mittee shall thereupon
hear or consider the same, and .shall advise His Majesty thereon in
manner aforesaid.

No matter to 5. ^o matter shall be heard, nor shall any order, report, or recomuien-

be heard unless dation be made, by the said Judicial Committee, in puvniance of this Act,

. c.

[1H33.

)n ol Forciirii
o Old Cnlulmr,
.V, Ne.w Cntafifir,

'cw Bninro, jiiul
ee Africa,
hlmiils. S(.'e

■ccivard hlniids.

aha. Sir .\its-

*'C, P. It (lay,,

S- C. Fiji, 6.S

JHHO; 14 \\.\

D H.'s T. 7oL>.

■<• coiisolidiitcd in

•ell 1H!)3, St. K

.39 Vict. c. 51.

vcndly, Xai'iga-

3 Siiinoii Hcrliii

■^18891, f'''iw//,

Tilbtrts^ Solomon

Gcrniaii jiirisdif-

Criiz f.slands.

Islands iiicJiKJe

dda, Grciuidini'S,

I St. Vinreiit.

500/. G & 7

12. S"o nil'.

Ill 20 Juno 1S32.

Li(cia, V. 300/.
L^roeedure of St.

166. The right

to appeal from
t in H case dealing
n h\ the "War
:ent Laws, 18Gt,
Lppeal estalilished

c. 33.

'orate. Adiu. by
ibar. O. in C.
a H.'s T. 11.
fe Bengal {Bom-
\n force. O. in

17H.'sT. 1092,

u Chief Magis. to
.ne 1H87, art. 30;

the said Jiidiciid
■ matters wliatso-
se shall thereupon
ijcsty thereon in

)rt, or reconinicu-
lance of this Act,

183^.1

3 A 4 WILL. 4. c. 41.— EVIDENCE.

1016

unless in the presence of at least tour members of the .said Com-
mittee; and

No I'eport or recommendation shall be made to His Majesty unless
11 majority of thi^ members of such Judicial Committee present at
the hearing shall concur in such i-cport or recommendation : Provided
always, that nothing herein cor.tained shall prevent IIi< Majesty,
if he shall think fit, from summoning any other of the members of
his said Privy Council to attend the meetings of the said Committee.
[fee 14 & 15 Vict. c. 83. s. 10, which made the quorum three.]

6, In case His Majesty shall be pleased, by directions under his
Sign Manual, to require the attendance at the said Committee for
the piu'poses of this Act of any member or members of the said
Privy Council who shall l)e a judge or judges of the Court of
King's Bench, or of the Court of Common Pleas, or of the Court
of Exchequer, such arrangements for dispensing with the attend-
ance of such judge or judges upon his or their ordinary duties during the
tiuie of such attendance at the Privy Council as aforesaid shall be made
bv the judges of the court or courts to which such judge or judges shall
belong respectively in regard to the business of the court and by the
judges of the said three courts, or by any eight or more of such judges,
iuchuling the chiefs of the scmtuI courts, in regard to all other duties, as
may be necessary and consistent with the public service.

in presence of
four [now
three] membeni
of the Com-
mittee, nor
report to \»
made unless
with concur-
rence of
majority
pre.sent.

In case the
King directs
the attendance
nf any judge, a
member of the
Committee, the
other judges
of the court to
•which he be-
longs to make
arrangements
with regard to
the business of
the court.

, in any Evidence may
to examine '"-' t'llte" v:v4

voce, or upon
written de-
positions.

7, It shall be lawful for the said Judicial Committee
matte" which shall be referred to such Committee,
witnesses by word of mouth (and either before or after examination
by deposition), or to <lircct that the depositions of any witness shall
be taken in writing by the registrar of the said Privy Council to be
appinted by His Majesty as herein-after mentioned, or by such other
person or per.sons, and in su(di manner, order, and course, as His
Majesty in Council or the .said Judicial Committee shall appoint and
direct ; and the said registrar and such other person or persons so to
be appointed shall ha\c the same powers as are now possessed by an
examiner of the High Court of Chancery or of any Court Ecck«ir.,stical.

8, In any mattt^r which shall come before the said Judicial Com-
mittee it shall be lawful for the said Committee to direct that such
witnesses shall be examined or re-examined, and as to such facts as
to the said Coi....iittee shall seem fit, notwithstanding any such witness
may rot have been examined, or no evidence may have been given on
any such facts in a previous stage of the nuitter ; and it shall also
be lawful for His Majesty in Council, on the recommendation of
the said Committee, upon any appeal, lo remit the matter which shall be
the subject of such appeal to the court from the decision of which such
appeal shall have been made, an<l at the same time to direct that such
fourt shall rehear such matter, in such form, and either generally or
upon certain points only, and upon such reliearing take such additional
evidence, though before rejected, or reject such evidence before admitted,
as His Majesty in Council shall direct ; and further, on any such remit-
tiug or otherwise, it shall be lawful for His Majesty in Council to direct
that one or more feigned issue or issues shall be tried in any court in
any of His Majesty's dominions abroad, for any purpose for which such
issue or issues shall to His Majesty in Council seem proper.

9, Every witness who shall be examined in pursuance of this Act Witnesses to be
shall give his or her evidence upon oath, or if a Quaker or Moravian e^nnun^^ o"

Committee may
iirder any par-
ticular
witnesses to
be examined,
and as to any
particular facts,
and may remit
causes for re-
hearing.

F 11' «

If :

1 •

1016

3 A 4 WILL. 4. c. 41.— NEW TRIALS.

[1H33.

oath, and to be
liable to
punishment
for perjury.

Committee
may direct an
issue to try
any fact ;

may, m certain
cases, direct
depositions to
be read at the
trial of the
issue ;

may make such
orders as to the
admission of
witnesses as are
made Viy the
Court of
Chancery ;

upon solemn nffirmation, which oath and affirmation resppctivoly slmll
be administered by the said .Judicial Committee and rogistrnr, and bv
such other person or pensons as His Majesty in Coinicil or the saill
Jndieial Committee shall appoint ; and that every such witness who
shall wilfully swear or affirm falsely shall be deemed guilty of periurv
and shall be punished accordingly.

10. It shall be lawful for the said Judicial Committee to direct onp
or more feigned issue or issues to be tried in any court of coiunion law
and either at bar, before a judge of assize, or at the sittings for the
trial of issues in London or ^fidfJlcse,r, and either by a special or
common jury, in like manner and for the same purpose as is now done
by the High Court of Chancery.

11. It shall bo in the discretion of the said Judicial Committee to
direct that, on the trial of any such issue, the depositions already taken
of any witness who shall have died, or who shall be incai)able to I'ive
oral testimony, shall be received in evidence ; and further, that such
deeds, evidences, and writings shall be produced, and that such facts
shall be admitted, as to the said Committee shall seem fit.

12. It ^h'dl be lawful for the said Judicial Committee to make sn^'h
and the like orders respecting the admission of persons, wlietiier parties
or others, to be examined as witnesses upon the trial of any such issues
as aforesaid, as the Lord High Chancellor or the Court of Ciiancerv lias
been used to make respecting the admission of witnesses upon the trial
of issues directed by the Lord Chancellor or the Court of Ciiancerv.'

1 See Jephson v. Riera, 3 Knapp.
130. It u])pears right to petition
for leave to produce new evidence,
if it is considered necessary, but it
is very doubtful if the leave will be
gi'anted. It was granted in Att.-
Gen. V. Meiklejohn, 2 Knapp. p.
330, in respect to the date of the exe-

cution of a will ; but in Canepa i;.
Larios, 2 Knapp. p. 278, the
Committee refused to hear anv
argument on evid ^ce printed in
the appendix, which had lieen
obtained after the trial in the
colony.

and may direct 13. It shall be lawful for the said Judicial Committee to direct one
new trials of or more new trial or new trials of any issue, either generally or upon
issues. certain ])oints only ; and in case any witness examined at a former

trial of the same issue shall have died, or have, through bodily or nientiil
dLsease or infirmity, become incapable to repeat his testimony, it shall
be lawful for the siud Committee to direct that parol evidence of the
testimony of such witness shall be received.

Powers, &e. 14. And whereas by an Act passed in the thirteenth year of his latf

of 13 Geo. 3. Majesty King George the Third, and intituled " An Act for Establishing

c. 63., and certain Regulations for the better Management of the Affaiis of the East

hU t "^'i India Company, as well in India as in Europe, " and by an Act passed

to the Judicial in the first yeiu- of the reign of his present Majesty, and intituled " An

Committee. Act to enable the Courts of Law to Order the Examination of Wit-

nes.ses upon Interrogatories and otherwise," certain powers are given tn

certain courts therein mentioned to enforce, and provisions are made foi

the examination of witnesses by commission, upon interrogatories and

otherwise ; be it therefore further enacted, That all the powers and

provisions contained in the two la.st-mentioned Acts, or either of them,

shall extend to and be exercised by the said Judicial Conmiittee in all

respects as if such Committee had been therein named as cue of Hi?

Majesty's courts of law at Westminater.

Ig33.] 3 & 4 WILL. 4. c. 41.— REFERENCE BY J. C.

1017

15, The costs incurred in the prosecution of any appeal or matter Costs to bo in
referred to the said Judicial Committee, and of sucli issues as the same the discretion
Committee shall under this Act direct, shall be paitl hy such party or ff the Corn-
parties, person or persons, and be taxed by the ai^orcsaid registrar, or

such other person or persons, to be appointed by His Majesty in Council
or the said Judicial Committee, and in such manner as the said Committee
jhall direct.

16, The orders or decrees of his Majesty in Council made in pursuance Decrees to bo
of any recommendation of the said Judicial Committee, in any matter enrolled.

of appeal from the judgment or order of any court or judge, sliall be
enrolled, for safe custody, in such manner, and the same may be inspected
anil copies thereof taken under such regulations as His Majesty in
Council sliall direct.

Committeo
mny refer
matters to
registmr in
same manner
ns matters are
by Court of
Chancery re-
ferred to a
master.

The King may

appoint

registrar.

Attendance
of witnesses,
and produc-
tion of papers,
&c., may be
compelled by
subpoena.

17. It shall be InAvful for the said Committee to refer any matters to
lie examined and reported on to tlie aforesaid registrar, or to such other
person or persons as shall be appointed by His Majesty in Council or by
ihesaid Judicial Committee, in the same manner and for the like purposes
as matters are referred by the Court of Chancery to a maste'- of the
said court ; and for the purposes of this Act the said registrar and the
sail! person or persons so to be appointed shall have the same powers
and authorities as are now possessed by a master in Chancery.

18. It shall be lawful for His Majest}-, under his sign manual, to
appoint any person to be the registrar of the said Privy Council, as
r?gards the purposes of this Act, and to direct what duties shall be
performed by the said registrar.

19. It shall be lawful for the President for the time being of the said
Privy Council to require the attendance of any witnesses, and the pro-
ilnction of any deeds, evidences, or writings, by writ to be issued by
such President in such and the same form, or as nearly as mny be, as
that in which a writ of subpoena nd testificandum or of sub[)oena duces
tecum is now issued by His Majesty's Court of King's Bench at
Westminster ; and every person disobeying any such writ so to be issued
by the snid President shall l)e consiclered ns in contempt of the said
Judicial Committee, and shall also be liable to such and the same
pennltios and consequences as if such writ had issued out of the saiil
Court of King's Bench, and may be sued for such penalties in the said
court,

20. AH appeals to His Majesty in Council sliall be made within
such times respectively within which the same may now be made, where
such time shall be fixed by any law or usage, and where no such law
or usage shall exist, then within such time as shall be ordered by His
Majesty in Council; and, subject to any right subsisting under
any charter or constitution of any colony or plantation, it shall be
lawful for His Majesty in Council to alter any usage as to the time of
malting appeals, and to make any onler respecting the time of appealing
to His Majesty in Council.^

* See Orphan Board v. Van Reenen, 1 Knapp. 93 ; East India Co. v.
Syed AUsy, 7 Moo. Ind. App. 568.

21. The order or decree of His Majesty in Council on any appeal Decrees on
from the order, sentence, or decree of any court of justice in the East appeals from
Indies, or of any colony, plantation, or other His Majesty's dominions courts abroad

Time of ap-
pealing.

h\\

\m 1

T 'J i

1018

3 & 4 WILL. 4. c. 41.— CONTEMPTS.

[1833.

to bo carried
into effect iis
the King in
Council shall
direct.

Act not to
abridge powers
of Privy Coun-
cil.

Orders made

abroad, shall be carried into effeet in such matiner, and subject to
such limitations and conditions, as His Majesty in Council shall, on
the recommendation of the said Judicial Committee, direct ; and it stinll
be lawful for His Majesty in Council, on such recommendation, bv
order, to direct that such coiu't of justice shall carry the same into effect
accordingly, and thereupon such court of justice .shall have the same
powers of carrying into effect and enforcing such order or decree as arc
possessed by or are hereby given to His ^Majesty in Council : Pmvidcd
always, that nothing in this Act contained shall impeach or abridtre tlip
powers, jurisdiction, or authority of His Majesty's Privy Conncil as here-
tofore exercised by such Council, or in anywise alter the constitiitioii or
duties of the said Privy Conncil, except so far as the same are cxpi-pssly
altered by this Act, and for the purposes aforesaid.

22, dealing with delayed appeals from the Sndder Dewanny Adawliit
courts, has been repealed.

23. Ill nny "ise where any order shall have been made on anv

on such appeals tjm.ij appeal as last' aforesaid, the .same shall have full force

to have effect
notwithstand-
ing death of
parties, &c.

effect notwithstanding the death of any of the parties interested therein;
but in all cases where any such appeal may have been withdrawn cr
discontinued, or any compromise made in respect of the matter in dispute.
before the hearing thereof, then the determination of His Jhijesty in
Council in respect of sucli iippeal shall have no effect.

1 Eefers to sec. 21.

His Majesty
empowered to
make orders
for regulating
the mode&e.
of such appeals.

24. It shall be lawful for His Majesty in Council from time to time
to make any such rules and orders as may be thought (it for tlic
regulating the mode, form, and time of appeal to be made from the
decisions of the said courts of Sudder Dewanny Adawlut or any other
courts of judicature in India or elsewhere to the eastward of the
Cape of Good Hope (from the decisions of which an appeal lies to
His Majesty in Council), and in like manner from time to time to
make such other regulations for the preventing delays in the making or
hearing such appeals, and as to the expenses attending the said appeals,
and as to the amount or value of the property in respect of which any such
appeal may be made.

25. Repealed.

26. Repealed.

27. Repealed.

28. The said Jndicinl Committee shall have and enjoy in all resi)cct5
such and the same powev of punishing contempts and of compelling
appearances, and His Majesty in Council shall have and enjoy in all
respects such and the same powers of enforcing judgments, ilccrees, and
orders, as are now exercised by the High Court of Chancery, or the
Court of King's Bench (an<l both in personam and ii rem). . . [The
latter and deleted jiart of the section gave the same power of enforcing
decrees, &c., as had been given by 2 and 3 W. 4. c. 93. to any Ecclesi-
astical Court. This was repealed and other powers given, 6 & 7 Vict.
c. 38. 8. 6, s. 7 respectively. See sec. 7, p. 1020.]

29. Registrar v.» Court of Admiralty may attend the Judicial
Committee; repealed, S. L. R. Act, 1875.

TS.

[1833.

ner, and Mihjm to
n Council shall, on
direct ; niul it shall
■pcommendation, bv
tlip same into effect
ihall have the same
(ler Of decree iis are
Council : Provided
pencil or al)ri(l<;e the
ivy Council as here-
r the constitution or
same arc expressly

r Dewanny Adawlut

been made on anv
rave full force anil
!s interested therein:
been withdrawn cr
he matter in dispute,
1 of His Majesty in

oil from time to time
thought lit for the
3 be made from the
Adawlut or any other
the eastward of the
ch an appeal lies to
^om time to time to
lays in the making or
iing the said appeals,
)ect of which any such

d enjoy in all resjx-cts

ts and of compelling

iiave and enjoy in all

dgments, decrees, and

ox Chancery, or the

i,i rem). . . [The

le power of enforcing

c. 93. to any Ecclesi-

!rs given, 6 & 7 Viet.

attend the Judicial

1] 6 A 7 VICT. c. .38.— IIEG. AS TO APPEALS.

1019

Two retired
Indian or
colonial judges
attending the
Judicial Com-
mittee shall re-
ceive an al-
lowance.

Snvi'lg a,-s
to treaties ap-
pointing cer-
tain persons to
hear prize
appeals.

30. I'wo members of His Majesty's Privy Council who shall have
leld the office of judge in th(^ East fndies or atiy of His Majesty's

I liominioiis beyond the seas, and who, being aiipointed for that purpose
Uv His Majesty, shall attend the sittings of the .Judicial Committee
of the Privy Council, shall .sever.illy be entitled to recei\o over and above
jnviiiuiiiity granted to them in res|)i'ct of having liohl such office as
aforesaid, the sum of foiu- hundred pounds for every year diu'ing which
libevshail so attend as aforesaid, as an imlemnity for the expense wdiieh
iliev may thereby incur ; and such sum of fotir hundred pounds shall
» chargeable upon and jiiiid out of the Consolidated Fund of the
Ijiited Kingdom of Great Britain and frelaiifl.

[50 & 51 Vict. c. 70. s. 1 amended this section as follows: — "Any
person who shall in virtue of s. .'U) of the Act 3 & I Will. t. c. 11. attend
;he sitting of the Judicial Connnittee shall be deemed to be included
jsaiueini)er of the .said Connnittee for all pnrpo.ses, and shall, if there
lieonlv one such person, be entitled to receive the whcde amoiuit of the
■iiins liy the sai<l section i)rovided, that is to say, 800/. for every year
iiiiring whi(di he shall so attend; but if there shall at any time be two
wh persons they shall severally b;' entitled to the sums provided in the
<aid section."]

31. Provided always, and be it enacted, That nothing herein con-
lained shall be held to impeach or render void any treaty or engagement
ilready entered into by or on behalf of His Majesty, or be taken to
retrain His Majest/ ' 'om acceding to any treaty, with any foreign
priuce, potentate, or power, in which treaty it shall be stipulate<l that
any person or persons other than the said .Tndieial Committee shall hear
and finally adjudicate appeals from His Majesty's Courts of Admiralty
m causes of prize; but that the judgments, decrees, and orders of such
other person or per.sons so appointed by treaty shall be of the same force
and effect of which they would res[)ectively have been if this Act had not
fen pas.sed.

6 & 7 VICT. (1813) c. 38.
"Judicial Committee Act, 1843."

Preamble and see. 1; the words "and be it enacted that," wherever
ihev occur; sec. 12, to "enacted that"; sec. 17, the word "that,"
wherever it occurs, repeided by S. L. R. Act, 1891 (54 & 55 Vict.
'.67.).

Sees. 4, (i, 8, 16, repealed in whole; and sec. 11 from "and from" to
"westward thereof," and from " and all causes " to " appealed from,"
t<:\mh\ by S. L. iv Act, No. 2, 1874, .37 & 38 Vict. c. 90. ; sec. 13
repealed bv 42 & 43 Vict. e. 59. ; and see words repoiled by sec. 18 and
kh. to 53 & 54 Vict. c. 27., ante, pp. 900, 902.

An Act to make further Regulations for facilitating
the hearing Appeals and other matters l)y the
Judicial Committee of the Privy Council.

[28ih July 1843.]

2. In respect of all incidents, emergents, dej>endents, and things Powers of the
"djoined to, arising out of, or connected witli api)eals from any Judicial Com-
Ecdesittstical Court, [or from any Admiralty or Vice-Admiralty Court] J^'gJ*^*",,^
(save in giving a definitive sentence, or any interlocwtory decree

1020

6 & 7 VICT. c. 38.— PROCEDURE.

[1«43.

.''V. ..' :

gates in respect
to nppfals
from Ecclesias-
ticnl nncl Ad-
miralty Courts,

2 & 3 W. 4.
c. 91.

3 & 4 W. 4.
0. 41.

Who to bo
surrogates and
examiners of
the Judicial
Committee in
Ecclesiastical
and Admiralty
appeals.

Manner of
conducting
appeals before
the Judicial
Committee.

Punishing
contempts,
compelling
appearances,
enforcing
judgments, &c.
in causes of
appeal.

having the forco and effect of a definitive sentence), the said Judicinil
Committee and their surrogates shall have full power, snliicut to such I
rules, orders, and regulations as shall from time to timo W made hvl
the said Juclicial Committee (with the approval of Her Maicstv inl
Council), to make all such interlocutory orders and decrees mid to!
administer all such oaths and affirmations, and to do all such tiiini's asl
may be necessary, or tlie judges of the courts below apiK'nled froni or|
their surrogates in the cases appealed, or the judges of the comtsl
appealed to or their surrogates, [or the Lords Couunissioiu'rs of Anpenlsl
in Prize Causes or their surrogates,] and the judges delegate or tlieirl
condelegates under commissions of appeal under the great soal iii|
ecclesiastical and maritime causes of appeal, would respectively havo had!
Iwfore an Act passed in the third year of the reigu of his latel
Majesty, intituled " An Act for transferring the Powers of the Hifhl
Court of Delegates, both in ecclesiastical and maritinw causes, to His!
Majesty in Council," and another Act passed in the following Session ofl
Parliament, intituled "An Act for the better administration of Justice!
in His Majesty's Privy Council," were passed. [Words repcnlud in
brackets, see ante, p. 902.]

3. The surrogates and examiners of the Arches Court of Canterlmni \
[and tlie High Court of Admiralty of Enyland], and such persons 1
as shall from time to time be appointed surrogates or examiners ofl
the said Courts, shall be by virtue of this Act surrogates and exaiiiimTs j
respectively of the Judicial Committee of the Privy Council in ail causes I
of appeal from Ecclesiastical Courts [and from any Admiralty or Vice-
Admiralty Court.] [Words repealed, p. 902.]

4. Repealed.

5. Subject to such rules and regulations as may from time to time
be made by the said Judicial Committee with the approval of Her!
Majesty in Council, and save and in so much as the practice tborcof I
may be varied by the said Acts of the reign of his late Majesty or]
by this Act, the said causes of appeal to Her Majesty in Council 'shall
be commenced within the same times, and conducted in the same form
and manner, and by the same persons and officers, as if ajipenls in
the same causes had been made to the Queen in Chancery, [the Higii j
Court of Admirrlty of En ff land, or the Lonls Couimissiouers I
of Appeals in Prize Causes respectively ; and all things otherwise I
lawfully done and expedited in the said causes of appeal by the registrar!
of the High Court of Admiralty of England, his tleputy or deputies, in j
consequence of the passing of the said Acts of the reign of bis latel
Majesty, shall be deemed to be valid to all intents whatsoever.] [Words j
repealed, p. 902.]

6. Repealed.

7. For better punishing contempts, compelling appearances, ami
enforcing judgments of Her Majesty in Council, and all orders amlj
decrees of the said Judicial Committee or their surrogates, in
causes of appeal from Ecclesiastical Courts [and from Adminiltv or j
Vice- Admiralty Courts,] Her ^lajesty in Council and the said Judicial!
Committee and their surrogates shall have the same powers, In!
attachment and committal of the person to any of Her Majesty's!
gaols, and subsequent discharge of any person so committed, ns by any |
statute, custom, or usage belong to the Judge of the High Court ofl
Admiralty of jExflf/awt/; and the said Judicial Commhtee shall have the j
same immunities and privileges as are conferred on the Judge of the j

1843.] 6 & 7 VICT. c. 38.— COSTS AND TAXATION. 1021

Hidi Court of Admiralty of England iiiidor an Act psisscd in the fourth
I vear of the reign of Her Miijesty, intitnled " An Act to improve the 3 & 4 v
pMCtice and extend the jnrisdietion of the Hi<i;li Court of Achniralty of c. 65.
Iwfjland," as fully as if the same had hecn thereby expressly given to
the said Judicial Committee. [Words repealed, p. 902.]

8. Orders, &c., may be enforced by .setpiestration against certain
persons pronounced contumacious and in contempt. [Repealed by
S L. R., 1871, No. 2, and rendered unnecessary by 37 & 38 Vict. c. 85.
ss,9, 12, 13.]

9. All inhibitions, citations, monitions, and other instruments inci-
dental to or arising out of such causes of appeal shall be issued in
llie name of Her Majesty, and under seal of Her Majesty in ecclesiastical
'and maritime causes], and shall be of full authority in all places
Ihiougliout the dominions of Her Majesty. [Words repealed, p. 902.]

10. 1" all appeals in ecclesiastical [and maritime causes] to Her
Majesty in Council it shall be lawful for Her Majesty in Council,
ami the siiid Judicial Comniitteo or their surrogates, at the petition of
anv person interested in the same, to decret! monitions for the trans-
mission of any sum or sums of money respecting which any order
or decree may be made, or any cpiestions may be dejK'nding arising
out of such causes, and the proceeds of all ships or vessels, goods,
anil cargoes, respecting which any appeals may be depending, into the
registry of the High Court of Admiralty and Ai)peals, for this benefit of
the person or {)ersons who may be ultimately entitled thereto, or for
|Kivuient thei-eof to the person to whom the same may be lawfully due.
[Words repeale<l, p. 902.]

let.

Inhibitions, &c'.
to be in Her
Majesty's
name, and of
force through-
out the British
dominions.

Monition!! for
payments into
the registry of
the Admiralty
Court under
orders, &o.

All appeals
from Eccle-
siastical [and
Admiralty
Courts] maybe
referred to the
Judicial Com-
mittee by an
Order in Coun-
cil.

11. It shall be lawful for Her Majesty, by Order in Council, to
direct that all causes of appeal from iRcclesiastical Courts, and from
the Vice Admiralty Court .)/ the Cape of Good Hope, and all
Yke-Admiralt 1/ Courts to the westward thereof, in which the appeal
and petition of reference to Her Majesty shall have been lodged
in the registry of the High Court of Admiralty and Appeals within
twche calendar months from the giving or pronouncing of any order,
liecree, or sentence appealed from, and all causes of appeal from Vice-
Admiralti/ Courts to the eastward of the Cape of Good Hope, in
ichich the appeal and petition of reference to Her Majesty shall have
ken lodged in the registry of the High Court of Admiralty and
Appeals within eighteen calendar months from the giving or pro-
nouncing any order, decree, or sentence appealed from , shall be referred
to the Judicial Committee of the Privy Council, and the said Judicial
Coininittee and their surrogates shall have full power forthwith to
proceed in the said appeals, and the usual inhibition and citation .shall be
decreed and issued, and all usual proceedings taken, as if the same had
been referred to the said Judicial Conuuittee by a special order of her
Majesty in Council in each cause respectively. [Words in italics repealed
by S. L. R. 1874, No. 2 ; and see Sch. to 2G & 27 Vict. c. 24.]

12, As well the costs of defending any decree or sentence appealed Costs may be
from as of prosecuting any appeal, or in any manner intervening in awarded by the
finy cause of appeal, and the costs on either side, or of any party, Judicial Cora-
in the court below, and the costs of opposing any )uatter which shall ^'*g,^*' ""^

be referred to the said Judicial Committee, and the costs of all such
issues as shall be tried by direction of the said Judicial Committee
respecting any such appeal or matter, shall be paid by such party

1^4

1022 fi & 7 VTOT. c. 38— CUSTODY OF T^ECORDS,

\\Hi

or parties, person or persons, ns tlio said Jndicjal Conimittfc slial
order, and snch eosts slmll lie taxed as in and by tiie said Act fol
8 & 4 Will. 4. tlic better Administration of Justice in the Privy Council is diroctiJ
c. 41. respecting the costs of prosecutinfj any appeal or matter rcfcncd ))|

Her Majesty under the authority of tlie said Act, save tlic Cdsts aiisinj
out of any ecclesiastical [or maritime | cause of a]>[ieal, wiiicji slmll b]
taxed by the rejjistrar herein-after named, or his assistant ivi^triiil
[See av'te, \\ 902.]

Appointmciil 13. ['i'hat the registrar of the High Court of Admiralty of KunX

of registrar nnd /^,„^/ for the time being may be appointed hy Her Majl'stv to Im
assistant rt'fiis- recristrar of Her Majesty in ecclesiastical and maritime causes, aiii
siusticnl and' '^''"'^ \m\i.' power to appoint an assistant registrai', as provided bv ad
maritime Act passed in the fourth year of the reign of Her Majesty, intituici

causos. " An Act to make Provision for the Judge. Registrar, and ]\lMislMii o]

3 &• 4 Vict. llie Jligh Court of Admiralty of E)i(ila)i<l,'' and shall dui'ing liis ^<m\
e. CG. beliaviour, and while he shall be registrar of X\\i' said High Conn

Admiralty, hold his ofttce of registrar of Her Majesty in ecdoiaMical
and maritime causes, and shall do all such things, and shall have tlia
same powers and i)rivilegeH in respect to the same, as belong to his pre-
decessors in the office of registrar of His Majesty in eeclesiastical nnill
maritime causes.] Kepealecl.

14. All records, muniments, books, papei's, wills, and other dociimcnta
remaining in the registry of the High ( oiu't of Admiralty and Apiicnis,
appertaining to the lati' High Court of Delegates and A])peals for Pii/.cs,
shall be and remain in the custody ami possessi(.)n of the said icgistriui
of Her Majesty in ecclesiastical and maritime causes.

15. It shall be lawful for the said Judicial Comndttee from time tol

time to make such rules, orders, and regulations respecting the ])racti(('|

and mode of jiroceeding in all ap^ieals from Ecclesiastical [and

Admiralty and Vicc-Admiialfy] Courts, and the conduct and dntiesj

of the officers and practitioners therein, and to appoint such ofllccrf

or officers as may be necessary for the execution of jirocesses uniicrj

the said seal of Her Majesty, and in respect to all appeals and otiierj

matters referred to them, as to them shall seem fit, and from time to time I

to repeal or alter such rules, orders, or regidations : Provided always, tliat |

no such rules, oiders, oi- regulations shall be of any force or effect until

the .«anie shall have been aj)proved bv Her Majesty in Council. [Words

repealed, p. 002.]

16. Kepealed.

Definition of 17. I" this Act all words denoting a male person shall be taken |

terms. to include a female also, an<l all words denoting one peison or tliini.'

shall be taken to inchule also several persons or things, unless a j
contrary sense shall clearly ajjpear froi.i the contt'Xt ; and the words
" Arches Court of Canterbury," tised in this Act, shall he construid {
to extend to such coiu't as shall exercise the jiu'isdietion of tlie said
court or be substituted for the same ; and whcrcvci' the words
" Ecclesiastical Court " have been used in tins Act the same shall lie
construed to extend to such court as shall exercise the jui'isdiction
or any part of the jurisdiction exercised by any ecclesiastical courf
or be substituted for the same ; and the words " ecclesiastical and
maritime cause of appeal " shall be construed to extend to causes appealed
from ecclesiastical courts and such court as shall exercise the jmisdittiou
or any part of the jurisdiction exercised by any ecclesiastical court or be
substituted for the same.

Custody of
records, &e. of
the Court of
Delegates and
Ajipeals.

Judicial Com-
mittee em-
powered to
make rules, Sec,
respecting
practice and
mode of pro-
ceedint; in ap-
peals, &c.

Proviso.

'PP

=:CORT)S [H4flBj^] 7 & 8 VIOT. c. 63. -ANY COL. CAN" APPEAL. 1023

7 & 8 VICT. (1841) c. (59.

prenmble and sec. 1 to " same, That " ; the words " aud be it enacted
Ijat," wherever they occur, except in sac. 8 ; sec. 8, the words " and
L it eniieted " ; sec. 9, the word "that" l)efore "the said judicial,"
lipealeil by S. L. II. Act, 1891, c. 07.

I Sees. 0,'7, 13 ropealcl l)y H. L. II. 1871, No. 2 (.37 & 38 Vict. c. 96).
jiec*. 2 to 5 inclusive repeahjcl by 46 & 17 Vict. (188.3) c. 57. sec. 11.3
|0l3nl sch.

[And for words in sec. 12 repealed, see Sidi. to iy'.i &, 51 Viet.
itT;(i>itt; |). 902.]

jiii Act for amcmding an Act passed in the Fourth Year
of the Reii^ii of His hite Majesty, intituled " An
Act For the better Administration of Justice in His
Majesty's Privy Council " ; and to extend its Juris-
diction and Powers. [6fh August 1844.]

Preumblc! and sec. 1. This i)art of the Act narrated: — That by
Jirrtiiiii " laws now in force in certain of Her Majesty's colonics and
l»«ossions abroad no appeal can be brought to Her Majesty in Council
■if the reversal of the judguient.s, sentences, decrees, and orders of anv
iMits of justice within .such colonic-, save only of the courts of
Jrrror or courts of appeal within the same, and it is expedient that
I Her Majesty in Council should be authorized to provide for the admis-
ot appeals from other courts of justice within such colonies or
Ipsessions." The Act then provided: —

It siiall be competent to Her Majesty, by any Order or Orders to be

lltiini time to time for that purpose made with the advice of Her

Privy Council, to provide for the admission of any ai)|)eal or appeals

hoHiT Majesty in Council from any judgments, sentences, decrees, or

ci's of any court of justice within any British colony or possession

I iliroad, although such court shall not be a court of errors or a court

o[ nppeal within such colony or possession ; and it shall also be

tompeteut to Her Majesty, by any such Order or Orders as aforesaid, to

make all such provisions as to Her Majesty in Council shall seem meet

(or the institutinj;; and prosecuting any such appeals, and for carrying

into effect any such decisions or sentences as Her Majesty in Council

1 pronounce thereon : Provided always, th.at it .shall be competent

holler Majesty in Council to revoke, alter, and amend any such Order

or Orders as aforesaid, as to Her Majesty in Council shall seem meet:

Provided also, that any such Order as aforesaid may be either general

ind uxtcniling to all appeals to be brought from any such court of

I justice as aforesaid, or special and extending only to any appeal to be

Ironglit in any particidar case : Provided also, that every such general

Order in Council as aforesaid shall be i)ublished in the London Gazette

within one calendar month next after the uuiking thereof : Provided

«l.«o, that nothing herein contained shall be construed to extend to take

wiiy or diminish any power now by law vested in Her Majesty for

regulating appeals to Her Majesty in Council from the judgments,

SDtences, decrees, or orders of any courts of justice within any of Her

Majesty's colonies or possessions abroad.

Sees. 2, 3, 4, 5, 6, 7, dealing with extension of letters pat«nt, &c.,

repealed. [See head-notes.]

Her Majesty,
liy Order in
Council, may
provide for the
adnii.'ision of nn
appeal from
any colony,
although there
.slmll not be a
court of error
or of appeal in
such colony ;
and niu}' re-
voke such
orders.

Orders may be
cither general
or special.

General orders
to be pub-
lished.

Nothing herein
to affect the
present powers
for regulating
appeals from
the colonies.

m it

!: \Wi

\ M

i-'f

iintmpj

M«<i«4Wi«WW«6i«niiwUi««li«jlMJj<,^:nraiilK>iW

1024. 7 A 8 VICT. c. 69.— SPECIAL REFERENCE. [1R44,

Judicifll Com-
tnitteo mny
appoint clerk
of Privy Coun-
cil to tnko
proofs in
mnttors ro-
forrod to them.

Judicial Com-
mittee mny
proceed to
hearing of
appeals with-
out kpcciul
order of
reference.

8. Provided always, and be it Pimotcd, that in the enso of nny
nintter or tliin;^ ivfoirpd to the Judicial Committee, it shall lie Inwfnl
for the said Committee to apijoint one or other of the clerks of tln'
Privy Council to talio any formal proofs re(|uired lo he taken in (Icalini'
with the matter or tliin<j so referred, and shall, if they .so think fit, pro'
coed upon such clerk's rei)ort to them as if sncdi formal proofs Imd ))pei
taken bv and before the said Judicial Committee.

l)pen

Proviso.

Judicial Com-
mittee may re-
quire notes of
evidence taken
in the courts of
nny colony, &c.
of the Crown.

Judicial Com-
mittee mny
make rules to
be binding
upon sucli
courts re-
quiring judges'
notes of evi-
dence, reasons
for judgments,
&c.

In cases of
neglect to com-
ply with Order
of Council
persons so
neglecting may
be punished as
for contempt.

9. In case any petition of appeal whatever shall be prpsonfod,
addressed to Her Majesty in Council, and such petition .>iliall lip
duly lodged with the clerk o" the Privy Council, it shall he lawful
for the said Judicial Comm^itee to proceed in hearing and reporting
upon such appeal, without any special Order in Council referring the
same to them, provided that Her Majesty in Council shall have, liy
au Order in Council in the month of November, directed that
all appeals shall be referred to the said Judicial Committee, on which
petitions may bo presented to Her Majesty in Council dining the
twelve months next after the making of such Order; and the said
Judicial Connuitteo shall proceed to hear and report tipon all such
apjieals in like manner as if each such apjieal bad been refeircd to the
said Judicial Committe • by a special Order of Her Majesty in Council;
Provided always, that it shall be lawful for Her Majesty in Countii at
any time to rescind any general order .so made ; and in case of sudi
Order being so rescincled, all petitions of appeals shall in the first
instance be preferred to Her Majesty in Council, and shall not lie
}>roceeded with by the said Judicial Committee without a special order
of reference.

10. It shall be lawful for the said Judicial Committee to make an
order or orders on any cotirt in any colony or foreign settlement,
or foreign dominion of the Crown, requiring the judge or judges of
such court to transmit to the clerk of the Privy Council a copy of
the notes of evidence in any cause tried before such court, and of the
reasons given by the judge or judges for the jiulgment pronounced in
any case brought by appeal or by writ of error before the said Judicitd
Committee.

11. It shall and may be lawful for the said Judicial (" immittee
to make any general rule or regulation, to be binding upon all eomtii
in the colonies and other foreign settlements of the Crown, requiring
the judges' notes of the evidence taken before such court on any
cause appealed, and of the reasons given by the judges of such court,
or by any of them, for or against the judgment pronounced by sudi
court ; which notes of evidence and reasons shall by such court
be transmitted to the clerk of the Privy Council within one calendar
montii next after the leave given by such court to prosecute any appeiii
to Her Majesty in Council ; and such order of the said Committee shall
be binding upon all judges of such courts in the colonies or foreign settle-
ments of the Crown,

12. In all causes of appeal to Her Majesty in Coimcil from Ecclesi-
astical Courts, [and from Admiralty or Vice-Admiralty Courts],
which now are or may hereafter be depending, in which any person
duly monished or cited or requested to comply vnth any lawful order
or decree of Her Majesty in Council, or of the .ludicial Coniniittee
of the Privy Council or their surrogates, made before or after the
passing of this Act, shall neglect or refuse to pay obedience to such
lawful order or decree, or shall commit any contempt of the process

mfm '

TERENCE. [1S44.

; in the onso of any
tteft, it shall ln' lawful
<r of the dorks of thi>
I to he tiiken in (Icaliiif;
' they so think fit, pro-
formal proofs luul been

or shall he prosonted,
itieh petition shall be
icil, it shall he lawful
hiMiring and reporting
1 Conncil referring the
Council shall have, by
oveniher, tlireetcd that
a\ Conunittee, on which
in Council timing the
1 Order; and the suiil
i report iipon all such
lad heen referred to the
-ler Majesty in Council:
!• Majesty in Comicil at
e ; and in case of sudi
ipeals shall in the first
iincil, and shall not lie
3 witliout a special order

I Committee to make an
■ or foreign settlement,
the judge or judges of
:>rivy Council a copy of
e siich court, and of the
judgment pronounced in
before the said Judiciiil

;aid Judicial ('Miumittee
binding upon alt comts
of the Crown, requiring
ore such covut on any
the judges of such court,
ent pronounced by such
s shall by siKdi court
ncil within one calendar
, to prosecute any appeal
the said Committee shall
colonies or foreign settle-
in Council from Ecclesi-
Vice-Adrairaltv Courts],
ig, in which any per«)n
ly Avith any lawful order

the Judicial Committee
lade before or after the
) pay obedience to such

contempt of the process

lj5l.] H & 15 VICT. c. 83.— QUORUM OF J. C.

1026

under the seal of Her Majesty in ecclesiastical [and maritinio] causes,
it shall be lawfid for the said Judicial Committee or tiieir surrogates to
pronoiuice .such pers').i to be contuuiacious and in contempt, and, after
he or she shall have been so pronounced contumacious and in contempt,
to cause process of setpu'stnition to issue under the said seal of Her
Majesty against the real and personal estate, fjoods, chattels, and effects,
wheresoever lying within the dominions of Her Majesty, of the person
against or upon whom such order or decree shall have been maile, in
order to enforce obedience to the same and payment of the expenses
attending such setpiestration, and all proceedings consetpient thereon,
nnd to nuike such fiu'ther order in respect of or consetiuent on such
sequestration, and in respect to such real and personal estates, goods,
chattels, and effects sequestrated thereby , as nniy be neee.ssary, or for
pavment of moneys arising from the same to the person to whom the
siune amy be due, or into the registry of the High Coiut of Admiralty
and Appeals, for the benefit of those wiio may he ultimately entitled
liiereto. [See words repealed, ante, p. S)02.]

13. Repealed.

14 & 15 VICT. (1851) c. 88.

Amending 3 & 4 Will. 4. c. 11. as to the quorum of the Judicial
Committee.

See. 16 provided : " JiTo matter shall be heard, nor shall any order,
re[)ort, or recommendation be nnide by the Judicial Committee in
piu'suance of any Act, unless in the presence of at least three members
of the said Committee, exclusive of the Lor<l President of Her Majesty's
Privv Council for the time being."

16 & 17 VICT. (1853) c. 85.

This Act gives the registrar of Her Majesty's Privy Conncil power to
take atlidavits and a<ln.ini.ster oaths; and provides for the api)ointment
of a deputy-registrar. [Under this Act Mr. Geo. Pearson Wheeler was
appointed deputy-registrar during absence of the registrar, Mr, Faber,]

34 & 35 VICT. (1871) c. 91.

[Repealed by S. L. R. Act, 1H93, e. 54.]

This statute gave power to Her Majesty within twelve months after
tlie passing of the Act, by warrant under her sign manual, to appoint
tour persons qualified as in the Act mentioned, whether already members
of the Judicial Committee or not, to act as members of the Judicial
Committee. And further, it gave power to Her Majesty fi-om time to
tiuie, within two years after the passing of the Act, by a like warrant to
fill any vacancies occasioned by death or otherwise in the offices of the
persons so appointed.

Any person appointed under the Act was to be specially qualified as
lieing or having been one of the judges of one of Her Majesty's superior
courts at Westminster, or a Chief Justice of the High Court at Fort
William in Bengal, Madras, or Bombay, or of the late Supreme Cotirt
of Judicature at Fort William in Bengal.

S 2340.

> t

1026

30 & 40 VICT. c. 69.— APPELLATE ACT.

[\m.

Where any person was appointe<l in pursunnre of the Act, lie wns on
hiH appointment to viu-ate iiis office as jiulne afori-said ; lint as to |)ciisi(]n
was to 1)6 in the same pcsition a.s if no .such appointment liinl liccii mndc.

Each judge wa.s to have a salary of 5,000/., including any pension he
was entitled to.

36 & 37 VICT. (1873) c. 66.
Judicature Act of 1873.

This Act [sec. IH (5)] transferred to the Court of Appeal nil jmis.
diction of tli<» Judicial Coiiiniittt'c upon appeal from any jud^inont or
order of the High (\)urt of Admiralty [in fuif/Zajid] ; or I'loin any
ord(!r ill lunacy. And now appeals from th(! Admiralty Court gotothfi
Appeal Court, and from thence to the House of Lords.

[Sec ;}7 Sc 'M V t. c. 8.3, ; .SH & .3!) Vict. [.Indieature Act of 1875]
c. 77., postponing parts of Act ; and .30 & 40 Vict. c. dQ. dcclHriiif; wlmt
appeals should go to the Hous(> of Lords, and repealing sees. 20 and 21
of the Judicature Act of 1S73.] Sec note, ante, p. 10.5.

39 & 40 VICT. (1876) c. 59.
Appellate Jurisdiction Act, 1876.

Appointment of Q, For the purpose of aiding the House of Lords in the hearing and
^ n^''^^^''^''' determination of appeals Her Majesty may at any time . . , hv
H Maiestv letters patent appoint two (jualified persons to be Lords of Appeal iu
Ordinary.

A person shall not be qualified to bo appointed by Her Majcstv
a Lord of Appeal in Ordinary unless he has been at or iiufoic tliotiiuc
of his appointment the holder for a period of not less than two U'liis of
some one or more of the oiriees in this Act described as lii(;li jndiciiil
offices, or has been at or before such time as aforesaid for not Ic.^s tliiin
fifteen years a practising bai'rister in Eiir/land or Ireland, or n praetisini,'
advocate in Scotland.

Every Lord of Appeal in Ordinary shall hold his office (liirinjj gond
behaviour, and shall continue to hold the same notwithstanding tin' dcnii^i'
of the Crown, but he may be removed from such office on the address of
both Houses of Parliament.

There shall be paid to every Lord of Appeal in Ordinary a salary of
6,000/. a year.

Every Lord of Appeal in Ordinary, unless he is otherwise entitled to
sit as a member of the House of Lords, shall by virtue and according
to the date of his appointment be entitled during his life to rank as a
baron by such style as Her Majesty may be pleased to appoint, and
shall ... be entitled to a writ of summons to attend and to sit and
vote in the House of Lords ; his dignity of a Lord of Parlimnent shall
not descend to his heirs. [Sec 50 & 51 Vict. c. 70. s. 2, a rightgiveuto
sit and vote in the House of Lords during life.]

On any Lord of Appeal in Ordmary vacating his ollice In- death,
resignation, or otherwise, Her Majesty may fill up the vacancv bv the
appointment of another qualified person.

A Lord of Appeal in Ordinary shall, if a Privy Coiuicillor, be a
member of the Judicial Committee of the Pri\y Council, and, subject to

>al in Ordiimi'V » saliiry of

f !' I T

1S76.] .19 A 40 VICT. o. SO— LORDS IN ORDINARY. 1027

the (iiio pprformanco !)v n Lord of Appnal in Onliniiry of his duties as
tn tiiP liearinf: iind dt'to-ininiuK of appciil.s in tho Mouse of Lonis, it
jliiillhe his duty, b(i:i;,'ii Privy Councillor, to sit and act as a nienihtT
oi tlio .Juiliciul Committtu' of tlic I'rivy Council.

9. For preventing diday in tlio administration of justifu- tho llonse llenring and
of Lords may sit and act for the pui-prjso of hearing luid detcTmining dpterminfttion
BpiK^ftls, and also for tlx' purpose of Lords of Appcid in Ordiiiarv taking ?f i^PP"-'*'* Jur-
ilioir .seats and the o; :lis, during any prorogation of I'arliaiuent at llJ^iifiXmunt'''
idi tinio and in such nuvrnusr as may he ap[)ointed by order of the
Hdiise of Lords made during the preceding session of Parliament ; and
all orders and i)rocce(lings of the .said House in relation to appeals ami
iiiiittcrs connected tiierewith during such prorogation shall l)e as valid
iisif Parliament lia.l heon then sitting; hut no husines.s other than the
liiiiriiif,' antl determination of appeals and the matters connected there-
witli, and Lords of Appeal in Ordinary taking their seat.s and the oaths
as . ''ore.'faid, shall he transacted by such House during .such prorogation,

Wonls repealed by S. L. R. Act liave been deleted, 57 & oH Vict, c. 56.]

Sec. 0 provided for the hearing and determination of appeals diu'ing
ailissolution of Parliament, and that " It .shall be lawful for Her Majesty,
l)v writing under her sign manual, to authorize the Lords of Appeal in
the iinine of the Hou.se of Lords to hear and determine appeals during
the liissolution of Parliament, and for that purpose to .sit in the House
of Lords at such times as maybe thought expedient; ond upon such
(lutlinrity as aforesaid being given by Her Majesty, the Lords of Appeal
ffliv, during such dissolution, hear imd determine appeals and act in all
mttcrs in relation thereto in the .same manner in all respects as if their
iiilinj;s were a continuation of the sittings of the House of Lords, and
my ill tlie name of the House of Lords exer -iso the juri.sdiction of the
House of Lords accordingly."

14. [Whereas by the Act of the ses.sion of the thirty-fourth and Ainondment of
lirtytirtli years of the reign of her present Majesty, chapter ninety- tho Act of 34 &
le, intituled " An Act to make further ))ro\ision for the desijatch of ''S V"'*'''' **'••

_ __ . _ - _ ^. . .... .... * _ -nitlntinrr Trt till*

I'lie,

iiisiness by the .Tiulicial Committee of the Privy Council," Her Majesty "„','jjti"tuti
was empowered to appoint and did appoint fo\ir persons qualified as in the Privy
iliat Act mentioned to act as members of the Judicial Committee of the Council
Privy Council at such salaries as are in the said Act mentioned, in this
Act referred to as paid judges of the Judicial Committee of the Privy

I Council :
And whereas the power given by the said Act of filling any vacancies

I ooca,«ioned by death, or otherwise, in the offices of the persons so
appointed, has lapsed by efHux of time, and Her Majesty has no power

I to fill any such vacancies :

it enacted, That whenever any two of the paid judges of the

I Judicial Committee of the Privy Council have died or resigned], Her
Majesty may appoint a third [Lord of Appeal in Ordinary in addition to
the Lords of Appeal in Ordinary herein-before authorized to be
ippointed,] and [on the death or resignation of the remaining two paid
judges of the Judicial Committee of the Privy Coimcil Her Majesty
may appoint] a fourth L—d of Appeal in Ordinary, in addition to the
Lords of Appeal in Ordinary aforesaid ; and may from time to time fill
up any vacancies occurring in the offices of such third ond fourth Lord
of Appeal in Ordinary. [Within brackets repealed by S. L. R. Act,
W,c. 56.]
Any Lord of Appeal in Ordinary appointed in -pursuance of this

I section shall be appointed in the same manner, hold his office by the

3t 2

to the
ion of

II! ■;

! 1

1028

44 & 45 VICT. V. 3. -LORD JUS TICES.

[18S1.

same tenure, be entitled to the siunc siilary and pension, miuI In .,111
respects he in the same position as if he were a Lord of Apponl in I
OnUnary appointed in pursuance of the power in this Act before given I
to Her Majesty. j

Her Majesty may by Order in Council, with the advice of tliel
Judicial Committee of Her Majesty's Privy Council or any live of them k
of wliom the Lord Chancellor shall be one, and of the archbishops andl
bishops beinfi members of Her Majesty's Privy Council, or iiny two ofl
them, make rides for the attendai'.ce, on the hearinj; of t'cclcsiiisticall
cases, as assossoi's of the said Connnittee, of such number of tlie mvli.|
bishops and bishops of the Church of England as may be di'turniiiu'd livf
such rides.

The rules may provide for the assessors bein<j; appointed for one or|
more year or years, or by rotation or otherwise, and for filling up any
temporary or other vacancies in the office of as.sessor.

Any rule made in pursuance of this .section shall be laid before eacL
House of Parliament within forty days after it is made if Parliament liel
then sifting, or, if not then sitting, within forty (hiys after the coin-
menceinent of tlie then next session of Parliament.

If either House of Parliament present an address to Her Majestyl
within forty days after any such "ule has been laid before such Ilousej
praying that any such rule may be annulled. Her Majesly may fiieie^_
upon l>y Order in (\»uncil annul the same, and the rule so annulled slialll
thenceforth beconu^ void, but without i)rejudiee nevertheless to tliel
making of any other rule in its place, or to the validity of anyfliiiii; wliiehf
nuiv in the nu>antime have Ihmmi done under any such ride.

i}y sec. 24, sees. 2l) and 21 of .S6 ii^: ."{7 Yict. (187.'{) c. G6.. whicii
attempfed to abolish the House of Lords anil the Judicial Coinuiitteei
supreme and ultimate appeal courts, were rei)eale(l.

By sec. 25, " high judicial office " means any of the follow ingofliees;

The ofliee of Lord Chancellor of Great Britain or Irrhinil or olj
paid Judge of the .ludicial Connnittee of the Privy Council, or of jiidi.'*^
of one of Her Majesty's superior courts of Great Uri/aiii iind IrehiiidM
And in till' latter e\|)ression, " Superior courts" means, ns to l-jii/ldiidl
Hei Majesty's Higli Court of Justice and Her Majesty's Court of
Appeal, itc. ; as to Ireland, the superior courts of l.nv and ei[nity iijj
Dul)lin ; as to Scotland, the Court of Session.

This was antendcnl by 50 & 51 Vict. c. 70., which see l)elo\v.

4J. & 15 VICT. (1881) c. 3.

1. Every person holding or who has held in /i«7/(/»r/ the ofliee ut' i
Lord Justici' of Appeal shall, if a member of Her Mnjesty's I'mj
Council in Kiif/laiid, be a member of the Judicial Couiniiltee of i
Privy Council.

46 & 47 VICT. (1883) c. 67.
Patents, Bosij^ns, and Trade Marks Act.

Hy see. 25, th« term of a patent may be extended by tiie Mm
Committee,

:icEs.

llHHl,

50 & 51 VICT. c. 70— APPELLATE JUU.

1029

1(1 ppusioii, iiiul in all I

a Lord of Appeal in I

in this Act before given!

ith the advice of thel
>ieil or any live of them,|
of the archlii^^Uops aiuil
■ Council, or any two ofl
hearinj; of eci'lesiiistioill
I'll iiiiiiilH'r of the urch.p
IS may be detenuineil liv|

n<j appointed for one orl
, and for tilliiij; up aiivl
essor.

shall be laid before eiiclj
is made if Parliiinient
rty days after the coin-l
lent.

address to Her Majesty
laid before siieh HouseJ
Her Majesty may tlu're-j
the rule so aininlled shall
dice nevertheless to tliq
t-alidity of anytliiiij; whicb
v snob rule.
7ict. (187;i) e. t)G.. whiiD
the Jutlieial C'oinmittee
ded.

r of the follo\vinu:ofli(vs:
3rit(ii)i or Ireland or
Privv Coiineil, or of jiui;:
rreat Uritti'ni mul trdnnii
;s " means, as to Emjkmlt
Her Majesty's Coiirt of
)nrts of h'.w and ei|iiity ;i|

which see lielow.

1) c. 3.

ill Eiuilaiid the office ul' i
r of Her Majesty's PiiH
J udiciul Couiiuittw of tli|

3) c. 57.

[Ic Marks Act.

exti'iided bv the •lixli'-'i

50 & 51 VICT. (1887) c. 70.

.in Act to amend the Appellate Jurisdiction Act, 1876.

[16/A September 1887.]

irrHEREAS it is expedient to amend the Apiiell.nto .Tiirisdiotion
\\ Act, 1876.

Be it therefore enacted by tho Queen's most E.xcellent Majesty, by
ind with the advice and consent of the Lords Spiritual and Temiioral,
ifld Commons, in this present Parliament assembled, and by the autho
ritv of the same, as follows :

1. Whereas it is expedient that any Lord of Appeal, as detined by the
.\ppcllate Jurisdiction Act, 187(i, notwitlistandiiifj that he may not be a
Lord of Appeal in Oi-dinary within the meaning of that Act, should be
einpowered to take his seat and the oaths at tiie sittinj^s of the House of
Lords for hearing and determininfj appeals duriii<>' the prorogation of
Parliament: Be it enacted that, notwithstanding anything in the eighth
section of the said Act contained, every Lord of Appeal shall be
einpowei'ed to take his .seat and the oaths at any such sitting of the
House ol Lords during prorogation.

2. The sixth section of the Appellate .Turi.sdiction Act, 1S7G, shall
he ("onstrued and take effect, as well in i'es|)ect of any Lord of Appeal
in Ordinary heretofore appointed under that Act, as of any such Lord
kwafter api)ointed, so as to entitle any person so appointed to sit and
vote as a member of the House of Lords during his life as fully as if the
words '' during the time that he continues in his ollice as a Lord of
.\ppenl in Orilinary, and no longer" had been omitted from the said
section.

3. The Judicial Committee of the Privy Council as formed under the
provisions of the first section of the Act of the third and fourth William
llio Fourth, chapter forty-one, intituled " An Act for the better adniiiiis-
tmtion of Justice in His Majesty's Privy Council," shall include such
uuMuliers of Her Majesty's Privy Council as are for the time being holding
or have held any of the oilices in the Appellate Jurisdiction Act, 1876,
and this Act, described as high judicial oilices.

4. Any person who shall in virtue of the thirtieth section of the Act
of the third and fourth William the Fourth, chaj»ter forty-one, attend
the sittings of the Judicial Coininittee of the Privy Council, shall be
liecnieii to lie included as a member of the said Coininittee for all
purposes, and shall, if there be only one such person, be entitled to
receive the whole amount of the siiiiis by the .said section providwl, that
is to sny, eight hundred pounds for every year during which he shall so
attend ; but if there shall at any time lie two such persons, they shall
severally be entitled to the sums provided in the sjiid section.

5. The expres.sioii " high judicial ollice " as defined in the twenty-
lifth section of the Appellate jurisdiction Act, 1876, shall be deemed to
include the office of a Lord of Appeal in Ordinary and the office of a
Member of the Judicial Committee of the Privy Council.

6. This Act may be cited as the Appellate Jurisdictiou Act, 1887.

57 & 58 VICT. c. 39.
The " Trize Courts " Act, 1894, ante, p. 926.

39 & 40 Vict,
c. 5f>.

Lord of Appeal
may take his
seat (luring
prorogation.

Retired Lord
of Appeal in
Ordinary amy
sit in House of
Lords.

Amendment of
3&- 4AV. 4.
c, 41.

Kemuneration
in Judicial
Committoo.

Amendment of
39 & 40 Vict,
c. 69. s. 2fi.

Short titla.

gBKntaaniHiUMia

1030

68 & 59 VICT. c. 44.— COL. MEM. OF P. C.

[1895.

68 & 59 VICT. (1895) c. 44

An Act to amend the Law relating to the -ludicial
Committee of her Majesty's Privy Council.

[Qth July 1895.]

BE it enacted by the Queen's most Excellent Majesty, by aiul with
the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the autliority
of the same, as follows : —

Provision as to 1. — (!•) ^^ '^'^.V person being or having been Chief Justice or a judge

persons licing of the Supreme Court of the Dominion of Canada, or of a superior

or haying liion court in any province of Canada, of any of the Australasian colonies

colonial Chief mentioned in the schedule to this Act, or of cither of the Soutii African

Justices or colonies mentioned in the said schedule, or of any other Superior Court

in Her ^Majesty's dominions named in tliat behalf by Her Majesty in

Council, is a member of Her Majesty's Privy Council, he shall i)e a

member of the Judicial Committee of the Privy Council.

(2.) The number of persons being members of the Judicial Com-
mittee by reason of this Act shall not exceed five at any one time.

(3.) The provisions of this Act shall be in addition to, and shall not
affect, any other enactment for the appointment of or relating to memhers
of the Judicial Committee.

Short title 2. This Act may be cited as the Judicial Committee Ameudnicnt Act,

1895.

;: • ;

■

SCHEDULE.

A ustralasian Colonies.

New South Wales ; Xew Zealand ; Queensland ; South Australia ;
Tasmania; Victoria; Western Australia.

South African Colonies,
Cape of Good Hope ; Natal.

[The Lords of Appeal in Ord. ary are: — Lord Watson, Lord Mac-
naghten. Lord Morris, and Lord Davey. The salary paid to each Lord
of Appeal in Ordinary is (>,(X)0/.

The following frequently attend the meetings of the Judicial Commit-
tee when colonial, Indian, and Ecclesiastical appeals ; Patent extensions
and Special Keferences are heard: Lord Halsbury, Lord Ciiancellor ;
Lord Her.schell, ex-Lord Chancellor ; Lord Penzance ; Lord Hohiiouse ;
Lord Ashbourne, Lord Chancellor of Ireland, Avhen not engaged in
Ireland ; Lord Shand, retired Lord of Session, Scotland [a court
answering to the Court of Appeal in England] ; Sir Richard Couch,
retired Indian judge ; Lord Field ; Hon. George Denman ; the Master
of the Rolls ; the Lord Chief Justice ; and the President of the Divorce
Court; and lately Lord James of Hereford has sat. The Lord Justiiis
who are P. C.s can also be summoned.

The majority of these Lords also sit in tlie House of Lords on the
hearing of appeals, Judges, therefore, who decide linally tiio law for
England, Ireland, and Scotland; also, more or less, decide the law
finally for all the colonies, India, &c.]

* ;

1^::

ittee Ameudiiu'iit Act,

1890] 53 & 51 VICT. c. 37.— FOR. JURISDICTION ACT. 1031

53 & 5i VICT. (1890) c. 37.

An Act to consolidate the Foreign Jurisdiction
Acta. [4th Auyufit 1890.]

[Authority exorcised, see n., p. 1041.]

WHEREiVS by treaty,^ capitulation, grant, usage,
sufferance, and other lawful means. Her Majesty
the Queen has jurisdiction within divers foreign coun-
tries, and it is expedient to consolidate the Acts re-
lating to the exercise of Her Majesty's jurisdiction out
of her dominions :

Be it therefore enacted by the Queen's most Excellent
JIajcsty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority of
the same, as follows :

1. It is and shall be lawful for Her Majesty the Exercise of
Queen to hold, exercise, and enjoy any jurisdiction 'in"or!i^gir
which Her Majesty now has or may at any time here- •^"^"''y-

I f

! i

d ; South Australin ;

vhen not ('nmigcd in

^Seo Imperial Japanese Go-
vernment V. P. Sf O. St. Xai-i-
gatioii Coif. [1895], A. C. 641;
where tlio Judiciul Committee bekl,
that as by treaty a Japimese can
only sue a British subject in the
Britisli Consular Courts in Japan,
so also a eounterclaini by a British
subject nguinst a Japanese can only
be heard in the Territorial Courts
of Japan.

Nor can a Japanese or Chinese
siitiject when sued by a British
Mihjwt in u Japanese or Chinese
Court claim to have his counter-
claim adjudicated upon in that
Court and in that action.

But the question depends on
the construction to be put on
each particular treaty which may
be in qtiostion.

The above case was one of
collision, in which, shortly, both
parties alleged that the other was
to blame. The British subject was
sued in Her Majesty's Court for

Japan, and in reply lodged a coun-
terclaim, and asked that security
should he given by the Japanese
litigant to abide the result.

Lord Hersch"ll, L.C., in giving
judgment, said: "The defendant
[the British subject] has obtained,
by virtue of a treaty made with his
Sovereign, complete immunity from
process in the Territorial Courts,
which would otherwise be open to
the plaintiff. It is difficult to see
on what grouT\ds a British subject
can insist, when sued in his own
Consular Court, that the Court shall
take cognizance of, and adjudicate
n|)on, a claim which he makes
against a Jaiuinesr. It appears to
their lordships that it would be in
violation of the treaty, and in
e.\cess of the jurisdiction which
the sovereign power of Japan, in
derogation of its own sovereign
rights, hfM granted to the British
Consular Courts, if it were to yield
to such a contention,"

u m

1032 53 & 54 VICT. c. 37.— FOB. JURISDICTION ACT. [1890.

after have within a foreign country in the same and as
ample a manner as if Her Majesty had acquired that
jurisdiction by the cession or conquest of territory.

2. Where a foreign country is not subject to any

Exercise of

jurisdiction i. i r • i

over British government from whom Her Majesty the Queen might

couiiTrits" obtuiu jurisdiction in the manner recited by this Act,

goverleX"' Her Majesty shall by virtue of this Act have jurisdiction

over Her Majesty's subjects for the time being resident

in or resorting to that country, and that jurisdiction

^ shall be jurisdiction of Her Majesty in a foreign countrv

within the meaning of th(; other provisions of this Act.

;-J

Validity of

Acts done in
pursuance of
jurisdiction.

Evidence as to
existence or
extent of juris-
diction in
foreign
country.

3. Every act and thing done in pursuance of any
jurisdiction of Her Majesty in a foreign country shall
be as valid as if it had been done according to the locrl
law then in force in that country.

4. If in any proceeding, civil or criminal, in a court
in Her Majesty's dominions or held under the authority
of Her Majesty any question arises as to the existence
or extent of any jurisdiction of Her Majesty in a foreign
country, a Secretary of State shall, on the application
of the court, seiid to the court within a reasonable time
his decision on the question, and his decision shall for
the purposes of the proceeding be final.

(2.) The court shall send to the Secretary of State, in
a document under the seal of the court, or signed hy a
judge of the court, questions framed so as properly to
raise the question, and suflScient answers to those ques-
tions shall be returned by the Secretary of State to the
court, and those answers shall, on production thereof, be
conclusive evidence of the matters therein contained.

Power to 5. — (1.) It shall bc lawful for Her Majesty the

ments in First Quccu in Couucil, if shc thiuks tit, by Order to direct

'^ that all or any of the enactments described in the First

Schedule to this Act, or any enactments for the time
being in force amending or substituted for the same,
shall extend, with or without any exceptions,

Schedule.

i in rF r

TION ACT. [1890.

1890.] 53 & 54 VICT. c. 37.— TRIAL OF ACCUSED.

1033

tions, or modifications in the Order mentioned, to any
foreign country in which for tlie time being Her
ilajesty has jurisdiction.

(2.) Thereupon those enactments shall, to the extent
of that jurisdiction, operate as if that country were a
British possession, and as if Her Majesty in Council
were the Legislature of that possession.

6.— (1.) Where a person is charged with an offence Power to send
cognizable by a British court in a foreign country, any with offences
person having authority derived from Her Majesty in a°Br™sh*''
that behalf may, by warrant, cause the person so possession,
charged to be sent for trial to any British possession
for the time being appointed in that behalf by Order in
Council, and upon the arrival of the person so charged
in that British possession, such criminal court of that
possession as is authoirzed in that behalf by Order in
Council, or if no court is so authorized, the supreme
criminal court of that possession, may cause him to be
kept in safe and proper custody, and so soon as con-
veniently may be may inquire of, try, and determine
the offence, and on conviction punish the offender
according to the laws in force in that behalf within that
possession in the same manner as if the offence had
been committed within the jurisdiction of that criminal
court.
Provided that —
(fl.) A person so charged may, before being so sent
for trial, tender for examination to a British
court in the foreign country where the
offence is alleged to have been committed
any competent Avitness whose evidence he
deems material for his defence and whom he
alleges himself unable to produce at the trial
in the British possession :
{!).) In such case the British court in the foreign
country shall proceed in the examination
and cross-examination of the witness as
though he had been tendered at a trial

III

1034

53 &■ 54 VICT. c. 37.— PUNISHMENT.

[1890.

before tha< court, and shall cause the evi-
dence so taken to be reduced into writing,
and shall transmit to the criminal court of
the British possession by which the person
charged is to be tried a copy of the evidence,
certified as correct under the seal of tie
court before which the evidence was taken,
or the signature of a judge of that court :
(c.) Thereupon the court of the British possession
before which the trial takes place shall
allow so much of the evidence so taken as
Avould have been admissible according to the
law and practice of that court, had the
witness been produced and examined at the
trial, to be read and received as legal evi-
dence at the trial :
{(l.) The court of the British possession shall admit
and give effect to the law by which the
alleged offender would have been tried l)y
the British court in the foreign country in
which his offence is alleged to have been
committed, so far as that law relates to the
criminality of the act alleged to have been
committed, or the nature or degree of the
offence, or the punishment thereof, if the
law differs in those respects from the law in
force in that British possession.
(2.) Nothing in this section shall alter or repeal any
law, statute, or usage by virtue of which any offence
committed out of Her Majesty's dominions may, irre-
spectively of this Act, be inquired of, tried, determined,
and punished within Her Majesty's dominions, or any
part thereof.

Provision as to 7. Whcrc an offender convicted before a

punTshment court in a forcigu country has been sentenced l)y that

llmicted. court to suffcr death, penal servitude, imprisonment, or

any other punishment, the sentence shall be carried into

efEect in such place as may be directed by Order in

1890.] 53& 54 VICT. c. 37.— VALIDITY OF ACTS DONE. 1035

Council or be determined in accordance with directions
given by Order in Council, and the conviction and sen-
tence shall be of the same force in the place in which
the sentence is so carried into effect as if the conviction
had been made and the sentence passed by a competent
court in that place.

8. Where, by Order in Council made in pursuance of Validity of
this Act, any British court in a foreign country is under order
authorized to order the removal or deportation of any '" """'^' '
person from that country, that removal or deportation,

and any detention for the purposes thereof, according
to the provisions of the Order in Council, shall be as
lawful as if the order of the court were to have effect
wholly within that country.

9. It shall be lawful for Her Maiesty the Queen in Poww to

assign juris-

Council, by Order, to assign to or confer on any court diction to
in any British possession, or held under the authority of incises wl'thfn
Her Majesty, any jurisdiction, civil or criminal, original J°risdi"tion
or appellate, which may lawfully by Order in Council ^^'•
be assigned to or conferred on any British court in any
foreign country, and to make such provisions and
regulations as to Her Majesty in Council seem meet
respecting the exercise of the jurisdiction so assigned or
conferred, and respecting the enforcement and execution
of the judgments, decrees, orders, and sentences of any
such court, and respecting appeals therefrom.

! I ■ t

10. It shall be lawful for Her Majesty the Queen in Po^'^p to
Council to revoke or vary any Order in Council made in in Council,
pursuance of this Act.

11. Every Order in Council made in pursuance of tliis ^^y^ps before
Act shall be laid before both Houses of Parliament and effect of
forthwith after it is made, if Parliament be then in coundil"
session, and if not, forthwith after the commencement

of the then next session of Parliament, and shall have
effect as if it were enacted in this Act,

' i'

In what cases
Orders in
Council void
for repug-
nancy.

Provisions for
protection of
persons acting
under Foreign
Jurisdiction
Acts.

1036 53 & 54 VICT. c. 37.— REPUGNANCY OF O. IN C. [l89o.

12. — (1.) If any Order in Council made in pursuance
of this Act as respects any foreign country is in any
respect repugnant to the provisions of any Act of Parlia-
ment extending to Her Majesty's subjects in that
country, or repugnant to any order or regulation made
under the authority of any such Act of Pailiamont, or
having in that country the force and effect of any sucli
Act, it shall he read subject to that Act, order, or regu-
lation, and shall, to the extent of such repugnancy, hut
not otherwise, be void.

(2.) An Order in Council made in pursuance of this
Act shall not be, or be deemed to have been, void on the
ground of repugnancy to the law of England unless it
is repugnant to the provisions of some such Act of
Parliament, order, or regulation as aforesaid.

13. — (1.) An action, suit, prosecution, or proceeding
against any person for any act done in pursuance or
execution or intended execution of this Act, or of auy
enactment repealed by this Act, or of any Order in
Council made under this Act, or of any such jurisdiction
of Her Majesty as is mentioned in this Act, or in respect
of any alleged neglect or default in the execution of
this Act, or of any such enactment. Order in Council,
or jurisdiction as aforesaid, shall not lie or be instituted—
(«) in any court within Her Majesty's dominions,
unless it is commenced within six months next
after the act, neglect, or default complained of,
or in case of a continuance of injury or damage,
within six months next after the ceasing there-
of, or where the cause of action arose out of Her
Majesty's dominions, witliin six months after
the parties to the action, suit, prosecution, or
proceeding have been within the juris-
diction of the court in which the same is in-
stituted ; nor
(6) in any of Her Majesty's courts without Herj
Majesty's dominions, unless the cause of action
arose witliin the jurisdiction of that court,

F O. IN C. [1890.

1890.] 53 & 54 VICT. c. 37.— PROTECTED PERSONS. 1037

and the action is oommenced within six months
next after the act, neglect, or default com-
plained of, or in case of a continuance of in-
jury or damage, within six months next after
the ceasing thereof.

(2.) In any such action, suit, or proceeding, tender of
amends before the same was commenced may he pleaded
ia lieu of or in addition to any other plea. If the ac-
tion, suit, or proceeding was commenced after such
tender, or is proceeded with after payment into court of
auy money in satisfaction of the plaintiff's claim, and
the plaintiff does not recover more than the sum tendered
or paid, he shall not recover any costs incurred after
such tender or payment, and the defendant shall be
entitled to costs, to be taxed as between solicitor and
client, as from the time of such tender or payment ; but
this provision shall not affect costs on any injunction in
the action, suit, or proceeding.

14. It shall be lawful for Her Majesty the Queen in Jurisdiction
Council to make any law that may seem meet for the cortai* "ILtem
government of Her Majesty's subjects being in any ''®"^"

vessel at a distance of not more than one hundred miles
from the coast of China or Japan, as f idly and effectually
as any such law might bo made by Her Majesty in
Council for the government of Her Majesty's subjects
being in China or in Japan.

15. Where any Order in Council made in pursuance Provision a.s to
of this Act extends to persons enjoying Her Majesty's Indian princes,
protection, that expression shall include all subjects of

the several princes and states in India.

16. In this Act, Definitions.

The expression " foreign country " means any country
or place out of Her Majesty's dominions :

The expression " British court in a foreign country "
means any British court having jurisdiction out of

ii'

■V'

'■ -f i

tk,

i ■

1038

S3 & 54 VTCT. o. 37.— ACTS IN AID,

[1800.

Her Majesty's dominions in pursuance of an Order
in Council whether made under any A ^^t or otlier-
wise :
The expression "jurisdiction" includes power.

^pTaUrvury 17. The Acts mentioned in the Second Schedule to
Aotg in Second tliis Act mav 1)0 revoked or varied by Her Maiestv l)v

Schedule. /^i./-..i >' J J

Order m Council.

Repeal. js. Tlio Acts mentioned in the Third Schedule to

this Act are hereby repealed to the extent in tlio tliird
column of that schedule mentioned : Provided tliat, —
(1) Any Order in Council, commission, or instruc-
tions made or issued in pursuance ol any enact-
ment repealed by this Act shall, if in force at
the passing of this Act, continue in force, until
altered or revoked by Her Majesty, as if made
in pursuance of this Act ; and shall, for the
purposes of this Act, be deemed to have been
made or issued under and in pursuance of this
Act; and
(2.) Any enactment. Order in Council, or document
referring to any enactment repealed l)y this
Act shall be construed to refer to the cor-
responding enactment of this Act.

Short title. \Q^ — (1.) This Act may be cited as the Eoreign Juris-

diction Act, 1890.

(2.) The Acts whereof the short titles are given in
the First Schedule to this Act may be cited by the
respective short titles given in that schedule.

1890,]

53 * 54 VICT. c. 37.— ACTS IN AID.

1039

ICC of an Order
ly A t^i or otlier-

)nd Schedule to
Her Majesty by

ird Schedule to
tent in the third
•ovided that, —
ion, or instruc-
ice ol any enact-
11, if ill force at
lie in force, until
jesty, as if made
id shall, for the
ed to have been
iirsuaiicc of this

cil, or document
•opoalod hv this
3ler to the cor-
Act.

le Toreign Juris-

SCHEDULES.
FIRST SCHEDULE.

Sections 5, 10.

Sossinii mid
CImptcr.

IJiW Vict. c. Ofl. •

ItJklSVii't. 0. O^-
KllsVic't. c. 104.
lJJt20Viof. 0.118.

HVictf. 'iO.-
HiaSViot. e. CS.-
StilViot. c. 122.
itii", Vk'l. c. 11.-

Title.

Enaotmpnts
whirl! may be
(ixtonded by Order
I in OouMoil.

Short Title.

00431 Vict. e. 124.
3;i38Vlct.c. 9^.-
Hi45Vlct. e. Oa.-
tStlllVict. c. 74."

An Ant to prnvidn for thu Pro-
secution nnd Trial in Hur
Majesty's tJolonics of Ollnnciis
committed within the jnris-
diction of till' Admiralty.

An Act to ainciiil the law of
ovidcncc.

The Morclianl Sh'-ipinK Act,

An Act to provit' for takiiiK
evidence in Hor ..lajcsty's Do-
millions in iTlation to civil and
cniiiinercial matter!! pciidiiiK
before ForeiKii Irilmnals.

An Ant to provide for takiiii?
evidenco in Suits and Proceed-
ings puniliiiK before Triliiiimis
in Her Majesty's Dominions,
in places ont of the jurisdic-
tion of such trilninals.

All Act to all'ord Facilities for
the in...'e certain Ascertain-
nicnt of the Law administered
ill one iiart of Hor Majesty's
Dominions, when pleaded in
the Courts of another part
thereof.

An .\ct to oiiablo the I.egisla-
turcs of Her .Majesty's Posses-
sions Abroad to make eiiiict-
inoiits similar to the Eiiact-
niciit of the Act ninth GoorKe
the Fourth, chapter thirty-one,
section eiitht.

An Act to all'ord facilities for
the better ascerlaiiiiiient of
the Law of FoieiKii Ooiiiitries
when pleadeil in Courts within
Her Majesty's Doiniiiioiis.

The Merchnnl Shipping Act,
18«7.

The Conveyancing (Scotland)
Act, 1874.

The Fugitive Offenders Act,
1881.

The Evidenco by Commission
Act, 1885.

The whole Act ' - Admiralty Of-
fences (Colonial)
Act, 1840.

.Sections seven and Evidence Act, 1851.
eleven.'

Part X.>

Tho whole Act *

Tlio whole Act '
Tho whole Act «

The whole .\ct "

Foreign Tribunals
Hvidciice .\ct,
18:.t).

Evidenco by Com-
mission Act,
1859.

British Law Ascer-
tainment Act,
18311.

Admiralty Of-
fences( Colonial)
Act, 18H0.

The whole Act * - , Foreign Law As-
I oerlainnient.\ct,
1801.

Section eleven.'
Section fifty-one "> ,
The whole Act." i
The whole Act."

' See ante, p. 703.

■ Proof of Foreign Statutes nn 1 Juflp;mont8.

' .Sec Part 8 of Act of 1894, ante, p. 977.

* Citiition of witnesses.

'' Sec. t; extended by 48 & 49 Vict. c. 74. s. 5.

' One court can remit a case to another court for its opinion aa to tLe iaw
applicable to the facts, but neither the P.O. nor the H.L. need adopt that opinion.

'9 Goo. 4. c. 31. offences against the person; see 24 & 25 Vict. o. 100. and
Miendiiifr Acts.

' Power given to Sup. British Court by convention with foreign state to remit a
case with queries to a foreign court for its opinion, and vice versd.

» See ante, p. 994, sec. 686, 57 & 58 Vict. c. 60.

'" Production of the probate of a will granted in any British colony or depen-
dency to be as effectual as production of the will.

" Anti; p. 826.

" Amend. 22 Vict. c. 20. Power to nominate a fit person to take evidence outside
the jurisdiction.

1040

.53 & i54 VTCT. o. 37— ACTS REPEALED

r 181)0.

Section 17.

SECOND SCHEDULE.
Acts whii'h may be revoked or varied hy Order in f'oiinril.

Seuion mill Clmpter,

24 & 25 Vict. c. 31.

26 & 27 Vict. c. 35.

Title. ' Kttcnl nf lU'iieal.

All Aft for tho prevention 'Die whole Act.

iind piinishnii'nt of offences

eoininitted liy Her Ma- I

jesty's snhjeets within eer- '

tain territories adjueent to

the colony of Sierra |

Leone'
An Act for the prevention > The whole Act.

and punishment of offences

committed hy Her Ma-
jesty's subjects in South

Africa.2

Section 18.

Sesiion nnil Chapter.

THIRD SCHEDULE.
Enactments repealed.

Title or Short Title.

Extent o( Repeal,

0 & 7 Vict. c. 91. - The Foreign Jurisdiction Act, The whole Act

1843.3

20 & 21 Vict. c. 75.- An Act to confirm an Order

in Cotincil concerning the
exercise of jurisdiction in
matters arising within the
kingdom of Sinni.*

28 & 29 Vict. c. 116. The Foreign Jurisdiction Act

Amendment Act, 1865.^

29 & 30 Vict. c. 87. - The Foreign Jurisdiction Act

Amendment Act, 1866.6

The whole Act.

Tlie whole Act.
Tlio whole Act.

' West African Settlements Act. Power to appoint magistrates in territorv
adjacent to Sierra Leone, &c.

^ Power to punish crimes committed to the southward of 25 deg. of S, I.o!. nod
outside the jurisdiction of apy civilized government in South Africa.

3 See p. 825.

* Extending 6 & 7 Vict. c. 94. to Siam, with power to British consul to hear civil
and criminal suit with au appeal to Siu<rapore. See p. 1013 and u. ' on next fUft

» See n., p. 7.13.

° Power given by O. in C. to confer on any court in any of Her Majesty's po5s«<-
sions out of U.K. any jurisdiction, civil or criminal, original or appellate, »W'
H.M. in Council might by 0. in C. confer on any court in any country out of |
H.M.'s dominions within wnich H.M. has power or jurisdiction.

IFyri-"' T

lEPEALFD.

y Order in ('inniril.

Kitcnt or R«pral.

t'lltlUM

Thu whole Act,

ffcnces

Mu- 1

111 cer-

■PUt lo

Sierra

icntion

The whole Act.

)ffene('S

r Mft-

South

LE.

•

Extent ol Repeal.

ion Act, The whole Act.

Order The whole Act.
ling the

The whole Act.
The whole Act.

ppoint niafiistrates in territory

liward of 25 Aeg. of S. U>. m
iu South Afrien.

er to British consnl to hear civil
p. 1013 and n. ' on next page.

in any of Her Majesty's fom- 1
nal, original or appellate, *lii«
iiy court in any country out ol |
jurisdiction.

1890.] 83 & M VrCT. c. 37.— ACTS TIEPEALED. 1041

Third Scheihilt — Euactnieiits repeuliil — com.

Si'!iitiun mill t'lmiiler.

Title or Short Title.

;« it ;i I Vict. V. 55,. The Slam iiml Strnits Setllo-
nu'iits Jiiiisdictioii Act,
1S7(».'

Ss ,^ 31) Vict. 0. 85.- 'I'lic i''i)ieignJnrisdictionAct,
1S75.2

.IflA 10 Vict. 0. 4(i. - An Act lor more effectually
|)nnisln'iig otU'iiccs against
the laws relating to the
I slave t ,i<1.'.''

\] & 42 Vict. c. 67.- TheF( '•<'ign .) uristiietion Act,

Extent ot Kepeiil.

The whoh. Act.

The whole Act.

.•Sections I'onr and

six.

The whole Act.

I Kxplnining 20 & 21 Vict. o. 75. and giviiijj appeal to S.C. of Strnits Settlements
iiiplaee of old S.C. of Singnpore.

■ Validity of acts of mnpistrnte, &c., exercising jurisdiction under (). in C". out of
Her Majesty's dominions, removing or deiiorling or ilefaining any persdu from or in
!liiit country. See 44 & -15 Vict. c. 6!)., aiih; ]). H-2G.

•' India.

' A note of this Act is given ante, p. 82.").

Note. — Atithority exercised in Africa (continent and .Madagascar), Ilrunei,
Ihina, .lapnn, and Corea, Cjprus, Kgypt, (io!d t'na.st (territories adjacent to),
l.stros (territories a.ljacent to), Morocco, Muscat, Persia, Persian coasts and
i-lands, Siam, Somali coast of the (rulf <if .\(lcn, South Africa, Tonga, Tripoli,
iurkey, Western Pacific, Zanzibar. St. H. i8'.»M.

The printed case of the Appellant, and of the Respondent to an appeal, must bo
printed in a certain way. i'or directions for binding printed cases, and the nnudier
IL'i'iK rally fifty) of printed copies of the appeal to be ledged for tlie use of the
.Iiiilicial C'oiiuiiittce, .sec lUiles and Kegulations made under the t)rder in Council
dMeil24 JIarch 1871.

8 2S40.

3 ij

I ii

I :

ii,

9 '' ■

i )

Aug. 1, 2, 6, 7,
1896 ; May 9,
1896.
Casks (ante)

BEFERRED TO :

Citizens' Ins.
Co. V. Parsons,
258 ; Gushing
V. Dupuy, 80 ;
Tennant v.
Union Bank,
295; Att.-Qen.
of Ontario v.
Att.-Gen. of
Canada, 302 ;
Eussell V. Keg.,
129; Hodge v.
Reg. 136;
Dobie >'.
Temporalities
Board, 272.

( 1042 )

APPENDIX C.

ATT.-GEN. OF ONTABIO Appellant.

ATT.-GEN. OE THE DOMINION. .^

AND

THE DISTILLERS' AND BIIEWERS'
ASSOCIATION

Respondeufs.

Constitutional Law — Prohibition — Liquor Traffic — Conjiict of
Tmws — Relative Positions of Laws by Parliament of Canadc
and Provincial Assemblies — Canada Temperance Act 1880
[R.S.C. 188G, c. lOG. p. HO]]— Ontario Licence Laws, 5,)
Vict. c. 56. s. 18, explained by 54 Vict. c. 4G.

Held .— j

(1.) "That Russell v. The Queen, in so far as it decided that the
Canada Temperance Act of 1878, which had been adopted by a district
of the province of New Brunswick, wa.s within the competency of tlio
Dominion Parliament — as being an Act passed " for the peace, order,
and good government of Canada," within the meaning of the goneral
and introductory enactments of sec. 91, B.N.A. Act, 1867 — aud eou-
stituted the paramount law within such district, is a precedent applicaljli'
to the Canada Temperance Act of 1886.

(2.) That the Canada Temperance Act of 1886, not having been
adopted by any district of the province of Ontario, was not in fon
within that province.

(3.) That the provincial legislature of Ontario, tlH!rc being no eiiint
ments of the Dominion Parliament upon the same subject in Force
within the province, had authority under sec. 92 of B.N.A. Act, IHGI,
to pass a prohibitory liquor lav.', the scope and objects of wliich werei
their nature local ant! niovincial.

(4.) That the enactments of sec. 18 of 5.3 Vict. c. 56. and of tlif
explanatory Act, 54 Vict. c. 46. were, in these circumsUinues, witliin
the competency of the legislature of Ontario.

Among the rea.sons assigned for these conclusions, the following pro
positions were stated : —

It is settled law, that according to the scheme of the B.N.A, Act, tbi
enactments of the Parliament of Canada, in .so far as they are withiu i
competency, must o\erride provincial legislation. But that Parliamen
has no authority conferred upon it to repeal directly any provincia
statute, whether it does or does not come within the limits of jurisdiciioi
prescribed by sec. 92.

B.N.A, ACT, s. 92 (9)— LIQUOR PROHIBITION. 1013

VERS' I -Kespo«rfe«/s.

Ontario, there bi-ing uo eiiud-
,n the same sHbject in lour
sec 92 of B.N.A. Act, 18b,,
nnii objects of whiclnveioinl

;onclusions, the following pro-

The repeal of a provincial Act by the Parliament of Canada can only Att.-Gen-. oi
lie effected by repugnancy between its provisions and the enactments of O-^'tahio !'■
till' Dominion ; and if the existence of such repugnancy should become ■'^"•-Gen'- oi
matter of dispute, the controversy cannot be settled by the action of ™^ omimon
either the Dominion or the provincial legislature, but must be sub-
mitted to the judicial tribunals of the coimtry.

Neither the Parliament of Canada nor the provincial legislatures have
authority to repeal stJitutes which they cannot directly enact. Nor can
the Piuiianient of Canada pass a prohibitory liquor hiw which does
not apply to the whole realm.

The exception at the end of sec. 91, B.N.A. Act, 1867, includes
all the matters in the 16 sub-sections of sec. 92 : but it does not derogate
from tiie legislative powers given to provincial legislatives by tliosc
sub-sectious, .save to the extent of enabling the Parliament of Canada
to (leal with matters, local or private, in those ca.ses where such legislation
is necessarily incidental to the exercise of the powers conferred upon it
bv the sub-sections of sec. 91.

The introductory enactment of sec. 91 relating to laws for the i)eace,
order, and good government of Canada not coming within the classes of
subjects assigned exclusively to the legislatures of the i)rovinces, may
imbrace matters not included in the sub-sections of sec. 91, upon which
the Parliament of Canada has power to legislate, l)ecause they concern
the peace, order, and good government of Canada. But in legislating
on these matters tlu; Parliament of Canada has no uutliority to «'ncroiicli
upon any cla.ss of subjects which is exclusively assigned to the provincial
Icjrislatnres by sec. 92 ; therefore, the exercise of legislative [)owei' by
tlu' Parliament of Canada in relation to all matters not enumerated in
sec. 91 ought to be strictly confined to such matters as are umpiestion-
ably of Canadian interest and importance, anil ought not to trench upon
prorincial legislation with respect to any of the chisses of subjects
enumerated in sec. 92.

The Parliament of Canada derives no authority from the introductory
euiictment of sec. 91 to deal with any nuitter which is in substance locid
or provincial, and which does not truly affect the Dominion as a whole.

Sub-sec. 8 sec. 92 onl) gives a provincial legi.slature the right to
iTiate a legal body for the management of municipal affairs.

Since the date of the confederation a provini'ial legislature cannot
(lelefiate any power which it does not possess.

Sub-sec. 9 sec. 92 does not give provincial legishitures any right to
luaet laws for the abolition of tlie liquor traffic

Sub-sec. 10 .sec. 92 has the same office which tiu^ general enactment,
with respect to matters concerning the peac*-, order, and good govern-
ment of Canada, so far as supplementary of the einnnerated subjects,
tiillils in .sec. 91.

A power to regulate a trade, under sub-sec. 2 sec. 91 B.N.A. Act,
implies the continued existence of that which is to be regulated or
jovpined; power 'o pass a prohibitory Act is not given by thai sub
wtion.

When the adoption of a Dominion Act is left to the option of a pro-
vince, or of a provincial district, until that option is exercised, there can
W no repugnancy between its provisions and those of a provincial Act
with the same objects.

The vice of intemperance may prevail in jjarticular localities within
» province to such an extent as to constitute its cure by restricting or
prohibiting the sale of liquor a matter of a merely local and private
Wure, falling />nV/i5/acj'e within sub-sec. 16 of sec. 92.

3u 2

! i

Att.-Gf.n. of
Ontahio c.
Att.-Oek. ok
THE Dominion.

1044 B.N. A. ACT, s. 92 (9).— LIQUOR PROHIBITION.

Some matters in their origin local and provincial may attain such
dimensions as to affect the body politic of the Dominion, and to justify
tlie Ciinadian Parliainont in passing laws for their regulation or aholitioii.
But great caution must he observed in distinguishing Ijctween tliat whicli
is local and provincial, and that which has ceased to be merelv locul and
provincial, and has become matter of national concern.

The general scheme of the Canada Temperance Law of 188fi, wliicli
is applicable to all the provinces ol Canada, is to give to the electors of
every county or city the oiition of adopting or declining to adopt tlip
prohibitions of the second part of the Act. If a majority of tlie cloctois
of the county or city are against the adoption, the question is not to ho
introduced during the next three years. The second part, whoii
adopted, makes it unlawful for any person, or his agent, on any prctcuco
whatever, to sell any intoxicating liipior. In effect the Act, if ami
when adopted, superseded the liquor-piohibiting clauses of the Act nf
1804, passed by the old province of Upper Cannda, now Ontario.

The IHth .section ..f the Ontario Act, 5.'} Vict. c. 56., after reciting'
previous legislation, and that the Temperance Act of 1801 liml
been repealed in innnieipalities where not in force by the Caiwila
Temperance Act, and that it was expedient that municipalities should
have the powers by them formerly possessed, re-enacts the provision*
of the consolidated Municipal Act of 29 & 30 Vict. c. 51. s. 219,
sub-s. 9, which were similar to tho.se of the Act of 1864, and wliicli pro-
vided, inter alia, that, "The Council of e\ery township, city, towu, nml
incorporated village, may pass by-laws for prohibiting the sale liy
retail of spirituous, fermented, or other manufactured liquors, in iiiiv
tavern, inn or other house or place of public entertainment, ami for I
prohibiting altogether the sale thereof in shops and places other lliaii i
houses of public entertainment ; provided that the by-law before the
final jiassing thereof has been duly approved of by the electors of tlie I
municipality." 54 Vict. c. 4(5. explained that 53 Vict. c. oH. wii
only intended to apply to retail tran.sactions.

Held, as above directly decided — That sec. 18 of the Ontario .\el,
53 Vict. c. 50., is valid, subject to the qualification that its provision*!
are or will become inoperative in any district of the province whiclil
has already adopted or may subsecpieiitly adopt the second part of tliel
Canada Temperance Act of 1880.

For the facts and opinions of the
judges in the SupieiiK! Court, see
ante, p. 102. The appeal was heard
before the Judicial Committee, coiu-
po.sed of Lord Halsbury, L.C., Lord
Herscliell, Lord Watson, Lord
Duvey, and Sir 11. Couch ; Lord
Morris did not attend after tho

second day. Maclellan and Barton,!
JJ. (Ontario), being present inj
court, the Lord Chancellor senil
round Mr. Geo. Pi'arsou Wli«kr
to invite their Lordships to sat'j
within the Bar; ami tlicy ntteiiiWf
every dav.

Machiren, Q.C. (of the Caiiadtinj

'IIP

OHIBITION.

incial may attain sueli
lomiuion, ami to jiislify
• ro"ulatiou oraliolition.
liiiir liotwwn thiit wluch
I to 1>P merely lociil aud
icern.

ice Law of 188(), which
to <»ive to the eh-ctors of
declining to adopt tho
I majority of the clei'tors
le (luestion is not to ho
Che second part, wlion
is agent, on any prcteuw
1 effect the Act, it iiiul
<T clauses of the Act nl
mila, now Ontario.

Vict. c. 56., after rccitins:
nnce Act of IHGt Imil
in force by the Cftiwilii
that municipalities should
, re-enacts the provision?
I 30 Vict. c. 51. s. 2t9,
ft of 1864, and which pin-
township, city, towu, iind
prohibiting the snlo l«y
nufactured licinors, in any
:)lic entertainment, ami for
lops and places other tliaii
hat the by-law before tlu'
I of by the electors of tlu^
that 53 Viet. c. oO. «>

ec. 18 of the Ontario .Ut,|
lification that its provision*
:rict of the province v\w\
dopt tlu' second part of tfel

Idav. MaclellananaHavioD.
(()ntario\ being piw""»l
the Lord Chancdlor *nl|
1 Mr. Geo. Pearson ^Mh*I
vite their Lordships to >rti|
n the Bar; and they attei..W|

in,Q.O.(ottlieC«nadJ

B.N.A. ACT, 8. 92 (9).— LIQUOR PROHIBITION. 1045

Bar), and Haldane, Q.C., were for
the Att.-Gen. of Ontario, the for-
mer also being for the Att.-Gen. of
Manitoba. Newcome, Q.C. (of jthe
Canadian Bar), and H. W.Loeluiis
for the Att.-Gen. of the Dominion.
The Hon. Edward Blake, Q.C,
ami Nesbitt (both of the Canadian
Bar) appeared for the Distillers'
and Brewers' Association. Tlie
two leaders for the respondents
only lieing heard.

Solicitors for Ontario, Fresh-
tields aud Williams ; for the Do-
minion of Canada, Eompas, Bis-
ohoff, Dodgson, and Co ; for the
Distillers' and Brewers' Association
of Ontario, Linklater and Co.

Maclaren, Q.C. : There were
contrary decisions on the same day
in the S. C. on this question
[see ante, p. 162-4], and we say the
Act is valid, and that the decision
of Sir Henry Strong, C.J., Four-
nier and Taschercau, JJ., was
right, and the decision of Gwynne,
Sedgewick, and King, JJ., was
wrong. We ask from this Board
an affirmative answer to all the
([iiestions [sec ante, p. 163]. The
tirst six are general, ami do not
refer to any existing legislation.
The seventh is the important
query. It refers to the 18tli section
otthe Ontario Act of 1890 [seeante,
p. 1G2], which is an independent
piece of legislation, distinct from
the rest of that Act. That legis-
lation is comprised within the term
" Municipal Institutions," sub-
see. 8, sec. 92. The B. N. A. Act
is hn.sed almost exclusively upon
the Quebec Resolutions {see parti-
cidarly No. 43, ante, p. 750),
and in inter[)retatiug particulai-
expressions embodied in the Act.
Canadian legislation is useftd in
deciding what these particidar ex-
pressions mean. Now the term
"Municipal Institutions" is used
in the B. N. A. Act in the sense in
whieh those words were understood
in Canadian legislation existing at
the date of the B. N. A. Act. And
"Municiiial Institutions" involves
not only the right to create these

corporations, but also to give them
siich powers as were understood to
have iK'en within the meaning of the
phrase " Municipal Institutions,"
The term was, .so to .speak, l;o: ro-.v-
ed from the legislation of Canada,
it not being used in the legislation
of Nova Scotia or New Brunswick,
so that it would be the powers
which were enjoyed in Canada :
and 1 say these powers were given
to the legislation of Nova Scotia
and New Brunswick if tiiey saw fit
to exercise them. There is no
doubt that out of the powers con-
ferred on municipal institutions
pre\iotis to confederation must be
taken, so far as local legislation
is concerned, all those subjects
assigned to the Dominion in sec. 91.
Citizens' Insurance Co. v. Parsons
[see ante, p. 262, line 14; in P. C.
26 Nov. 1881, 7 App. Cas. 96;
51 L.J. P. C. 11; 45L. T. 721];
Shivin V. Corp. of Orillia (1874)
[36 U C. Q. B. 175 ; ante, p. 213],
where Richards, C.J., was of
opinion the words " Municipal In-
stitutions " were u.sed in a general
sense, and included su('h powers
€'>8 had hitherto been luiderstood
in Canatia to belong to such
institutions prior to 1867, namely,
pow<'rs with respect to the tratfic
in intoxicating liquors. The word
" municipality " is not mentioned
in sec. 91. [Lord Watson :
Practically, the whole power of
legislation is divide<l between tlie
Dominion and the provinces.] .St-*'
Hodge V. The Queen [ante,
p. 141 ; in P. C. Dec. 15, 1883, 9
App. Cas. 117; 53 L. J. P. C.
1 ; 50 L.T. 301] for what is com-
prised within "Municipal Institu-
tions." It was there said :

"Their Lordships proceed now
to consuler the subject-matter antl
legislative character of sees. 4 aud 5
of 'The Liquor License Act of
1877, c. 181, Revised Statutes of
Ontario.' That Act is so far con-
fined in its operation to nmnici-
palities in the province of Ontario,
and is entirely local in its character
aud operation. It uuthorizea the

;i^' !

j 4

B.t«fl1Ifr*RCT* "•■.'<

1016 JIN.A. ACT, s. 92 (9).— LIQUOR PROHIBITION.

appointment, ol' License Commi.s-
sioners to act in each municipality,
and empowers them to pass, under
the name of resolution.-*, what we
know as by-hiws, or rules to detine
the conditions and qunlifications
retpiisite for ohtainiiifi tavern or
shop licenses for sale by retail of
spirituous licpiors within ^he muni-
cipality ; for iimitinf? the number
of licenses ; for declaring that a
limited number of persons qualified
to have tavern licen.-<es may be
exempted from having all tlic tavern
accommodation required by law,
and for regulating licensed taverns
and .«hoi).s, for deiining the duties
and powers of license inspectors,
and to inqjose penalties for infrac-
tion of their resolutions. These
seem to be all matters of a merely
local nature in the province, and to
be similar to, though not identical
in all respects with, the powers
then belonging to municipal insti-
tutions inider the [treviously exist-
ing laws passed by the local
parliaments.

" Their Lordships consider that
the powers intended to be conferred
by the Act in question, when pro-
perly under.stood, are to make regu-
lations in the luiture of police or
municipal regulations of a merely
local character for tile good govern-
ment of taverns, &c., lices.scd for
the sail' of liipiors by retail, and
such as are cnlculatetl to preserve,
in the municipality, peace and
public decency, and repress drunk-
enness and disorderly and riotous
conduct. As such they cannot be
said to interfere with the general
regulation of trade and commerce
which belongs to the Dominion
Parliament, and do not conflict
with the provisions of the Canada
Temperance Act, which does not
ai)pear to have as yet l)ceu locally
adoj)ted.

" The subjects of legislation in
the Ontario Act of 1877, sees. 4
and '), seem to come within the
heads Nos. 8, 15, and 16 of sec. 92
of British North America Statute,
1867,"

Therefore, in that case, this
Board gave a much wider moaniiin;
to sub-sec. 8 of sec. 92 than tho
merp creation of municipal corpora-
tions, and the conferring upon tlieni
of such powers as are conferiod
u|)()h the local legislatures l)y tlio
other sections.

And the question can l)o
answered in our favour without in-
terfering with Russell v. The Queen.
'J'hat case settled the lawfuhu'ss of
the Canadian Temperance Act.
[Lord Uavey : And<'onsistenl witli
reguhitions by the municipalities for
regulation of police. Lord llals-
bury, L.C. : Ami Russell v. The
Queen de[K'nded upon the suhjecl
matter being one which was in-
tended to lx> regulated acconlinfr
to general orders throughout tlie
whole Dominion.] Yes. [Lord
Watson : In that view the question
will come to be whether tho Pro-
vincial Government have exceeded
their powers of regtdatior. in ])ass-
ing that Act, whether it is regula-
tion at all or is in efPect prohibi-
tion. Lord Hersehell: If it is
within the .specified subjects nien-
tione<l in sec. 91, then clearly all
matters although merely local, and
under .sec. 91, are out of the power
of the provincial legislature. Rr.t
if it is not to be found in any of
the specified subjects in sec. i)l,
and is merely local, then tlie ([ues-
tion arises whether then^ is any-
thing in .sec. 91 to take it out of
the full operation of the Act.]
[Lord Watson: If you can show
that the enactments in cpiestion do
not go beyond " regulations,"
Ru.s.sell V. The Queen [ante,
p. 129; in P. C. June 2,1, 1882,
7 App. Cas. 829; 51 L. J. P. C.
77; 46 L. T 889] may he a judg-
ment in your favour, for that case
suggests tliat whilst laying down
the lines of trading is within tlie
<'ompeteney of the Dominion Parlia-
ment, yet after these lines are laiii
down tiiere will remain witii the
local legislatures the power of regu-
lating local sales; and one (|ues
tion is, can you shew that thi*'

"I I'M f

IHIBITION.

in that case, this
much wider moaninn;

of soc. 92 than the
of municipal corpora-
conforring npon thpni
ers us are confenvd
il legislatures liv the

(luestion can bo
)iir favour without in-
Russell f. The Queen,
tied the lawfulness of
n Temperance Ad,
: And consistent witli
y tlio municipalities for

police. Lord Hals-
And Russell v. Tlii'
ided upon the suhjecl
; one which was iii-
' regulated acconlin<,'
)rders throughout tlio
nion.] Yes. [Lord
that view the qucstiou
I be whether the Pro-
rnmeut have excecdod
of regulatioi: in jiass-
, whether it is regula-
• is in effect proliilii-

Hersehell: If it is
pecified stUyects nien-
c. 91, then clearly all
)ugh nu'rcly local, and
I, are out of the powi'i'
ncial legislature. But
o l)e foinid in any of

subjects in sec. 01.
y local, then the iines-
whether there is any-
'. 91 to take it out of
erntion of tht! Act.]
ion: If you can show
ctments in question do
eyond " regulations,"

The Queen [ante,
V. C. June 23, IS82,
829; 51 L. .1.1'. C.
■" 889] may be a judjj-
n- favour, for that ciisc
it whilst laying down

trading is within tlie
of the Dominion Parlia-
"ter these lines are laid

will remain with tlic

ures the |)ower of regu-

sales; and one (pies-
you shew that thi^

B.N.A. ACT, s. 92 (9).— LIQUOR PROHIBITION. 1047

I 1 :

■fc. 18 is a regulation of that cha-
racter?] Now before confederation,
the expression "Municipal Insti-
tiiticns" had in various Acts of
Parliament been given a well-
ilelined meaning. The following
Acts show the regulations whi<;h
had been in force in Canada on
ihissnbject. The first Municipal
Act in Canada was passed by tin?
province of Canada for I'^pper
t'linada alone. The province luul
ihf local Act of 1849, 12 Vict.
1849) c. 81. The expression is
nut nsed in that Act, but in that
Alt of 1849 there are certain
uiunicipalities created and certain
|ioweis given. Then comes the Act
resppcting the municipal institutions
of Upi)er Canada. That Act is 22
Vict. U. C. c. 99., and see. 245 was :
•The council of every township,
city, town, and incorporated village
may respectively pass by-laws."
And sub-sec. G : " For prohibiting
tlie sale by retail of spirituous, fer-
mented, or manufactured liquors in
any inn or other house of public
cniertainment ; and for prohibiting
ihe sale thereof in shops and places
I'thfi' than houses of public enter-
tainuient ; provided the by-law
Wfoi'c the iinal passing thereof
las lieen didy approved by the
ck'dors of the mtmicipality in the
manner provided by this Act."
That shows the provinces did claim
-ucb powers as we are now claim-
ing, and that the prohibitory
powers were theirs. See also C. S.
U C. 1859, c. 54. s. 240 ; 29 & 30
Vict. e. 51. s. 249. Aiul as to
Lower Canada, 10 Vict. c. 214.;
IH Vict. e. 100. s, 2.3 ; 19 & 20
Vict. c. 101. s. 11; L. C. C. S.
l«61,c. 21. ,s. 20, sub. ss. 10, 11 ;
29 & 30 Vict. c. 32. s. 2. Then as
10 Nova Scotia, see R. S. N. S.
Uth Ser.) c, 75. ; and as to Now
Brunswick, Pub. S. N. B. 1854,
I lij. s. 29. And the Temperance
Act of lS(i4 (Dunkiu's Act) was the
2" & 28 Vict. c. 18. See also Reg.
1 Taylor [ante, p, 55], 36 U. C,
Q B. 218; Coey v. Corporation
"f Brome, 14 L. N, 370, and Keefc

V. Macleunan, 11 N. S. (2 Russ.
& Ch.) 5, holding this kind of
provincial legislation was valid.
Burton, .1., in In re Ontario Local
Option Act [ante, p. 209; 18
O. A. R. 573], said under the Con-
federation Act the "Municipal
Institutions" in the province are
in the class of subjects within ex-
clusive provincial legislation. It
may be safely .said that there is no
api)arent intention in the BVderation
Act to cm-tail or interfere with the
exi.sting general powersof municipal
councilu unless the Act plainly
transfers any existing powers to
the Dominion jurisdiction." His
Lordship then considers the ques-
tion of its having an interference
with trade and commerce. Sec
also Lynch, J., in Lupine v.
Laurent, 17 Que. L. R. 226;
and Tasehereau, J., in Huson i'.
South Norwich, ante, p. 198.
This is not an Act of total pro-
hibition of sale by retail. They
can still sell provided they do not
sell imder three gallons or one
dozen bottles at one time. The Act
is a matter merely of the withhold-
ing of Tavern and of Shop licenses.
As to sec. 129, the provincial
legislature, having pur|)orted in
1809 to repeal these provisions, in
1890 passed this Act to re-enact
them. Uiulcr sec, 129, all exi.sting
legislation was preserved. But
existing legislation could be altered
by the Dominion, if within one of
the Dominion classes of subjects.
[Lord Herschell : If there is no
j)ower to make this enactment,
there .seems strong argimient in fa-
vour of there having l)een no power
to repeal it.] [Mr. Blake : The old
Act is repealetl m a way by the Do-
minion : See Schedule, AppeucUx
B., p. 3, R. S, C] That brings the
question back to the same question,
is this within the jurisdiction of
the Dominion or the province ?
[Lord Herschell : If it is not one
of the things siMJcifically included
within sec, 91 ; and it is local in its
character ; and does not go In'y ond
the locality j why shoidd it not be

i I

1048 B.N.A. ACT, s. 92 (9).— LIQUOR PROHIBITIOX.

iufliKlcHl iu sub-see. 16, sec. 92 ?
Dealinji; with the liquor traffic,
might not both the IJomiuiou aiul
the jjro\iuces deal with it ? No
doubt the Dominion legislation
must override the provincial li'gis-
lation, but iu a matter of this kin«l
this Board has evidently left open
the question whether the liquor
traffic coulil be dealt with
by the provinces in a manner
not inconsistent with Dominion
legislation. UusseU's ease [ante,
p. 129, full reference above] did
not decide that the province might
not legislate within the province for
a thing which affected only tla?
province.] Yes. .S'ce L' Union St.
.Facques de Montreal r. IJame Julie
Belisle [ante, p. 329; in 1*. C.
July 8, 1871, L. K. 6 P. C. .'U ;
31 L. T. HI; 22 W. K, 9;«;
and Att.-Geu. of Ontario v. Att.-
Gen. of the Dominion, atife,[). ,'{1)2].
This Board has hiiil down the rule
that it is necesfiary to look at ihc
nature and character of the legisla-
tion in order to determine which
authority has the jurisdictioti. Now
the difference between tills legis-
lation and the Canada Temper-
ance Act is very marked. The
latter had nothing to do with muni-
cipal institutions, and it does not
cover the wholi^ liquor traihc
ground, and, although on the
statute book, it does not practically
exist or possess the force vi law
until the district has adopteil it.
No doubt if the Canada Temper-
ance Act were put in force by Act
and Proclamation, in such a case
this legislation would be inopera-
tive. This is a mere local matter
simply n.'gulating a matter of u
local and private nature in the
province, which the provincj may
legislate upon umler sec. 9i until
that is overridden by Dominion
legislation which comes actively
into force. And this is very
much like the legislation con-
sidered in the two cases cited
above, namely that it was gootl
legislation on its own ground, so
lo.ig us there was no Dominion

legislation of a genend nature over-
riding it.

That is all I would claim for
this law in the present wiSf.
Then, as I have said, the luitiire
of the Act in UusseU's case — the
Canada Temperance Act — was
entirely different. [Lord Hcr-
schell : In Russell's case it was
belli not to be excluded fioni tlic
Dominion jurisdiction as a local
matter, becau.se the Dduiiuioii
Parliament might deal tlirouj,'lii)iit
the whole of Canada with any sub-
jeet that was not si)eciHcaUy ile-
scribed in the heads of 92, wliercwr
lliey thought it was for the <;()(mI of
th(( country there should l>f siifh
legislation, anil then each province
could not .say, " You cannot do
that because it applies to us, and is
therefore a local matter." 'i'liat i.s
all that Rus-sell's ca.se decided.]
That is the effect of the decision.
[Lord Herschell ; Russell's case
was an atteuqit to i)revent the
Dominion legislature dealing with
a matter not within any of the
headings in sec. 92, because it wa.s
a local matter. But their Loiilships
said it was not a local matter.
They stiid, " Their Lordships eau-
not concur in this view. The de-
clared object of Parliament iu
passing the Act is that there should
be uniform legislation in all the
provinces respecting the tratiic in
intoxicating liquor.s, with a view to
promote temperance in the Do-
minion. Parliament does not treat
the promotion of teuiiierauee as
desirable in one province uiuie
than in another, but as desiralile
everywhere throughout the Do-
minion. The Act, as soon as it
was passed, became a law for the
whoU^ Dominion, and the euaet-
uients of the first part, relating to
the machinery for bringing the
second part into force, took eileet
and might be put iu motion atonee
and everywhere within ii. h i^
true that'the prohibitory and ptual
parts of the Act are only to eoiiie
into force in any county or city
upon the adoption of a petitiou lu

IIBITION.

1 general nature over-

I would claim for

the present case,

iiive said, the natnie

I Kussell's ease — the
iiperanee Aet — was
erent. [Lord Hcr-
lussell's ease it was
)() excluded from tliu
irisdiction as a lowii
vuse the Douiiuiou
night deal ihroiigliuut

Canada with any sub-
s not si)eeilieally de-
i heads of 92, whcrcvi'r
it was for the j^ooil of
there should 1"' such
ml then each ijroviiice
ay, " You eaiiuot do
it applies to us, and is
oeal matter." 'J'hat is
issell's case deeidwl.]

effect of the decision.
schell : Russell's case
enipt to prevent the
egislature dealing with
ot within any of the
sec. 92, hecause it was
er. But their Lordsiiips
i not a local niatter.
'Their Lordships cau-
in this view. The de-
■ct of Parliament iu
Act is that there should

legislation iu all the
especting the trallic in
; liipiors, with a view to
■mperanee iu tlic Do-
nrliauient does not treat
ion of teniiierauce as

II one province mure
other, hut as (h.'siralile

throughout the Uo-
he Act, as soon as it

became a law for the
iiinion, and the eiiact-
iie tirst i)art, relating to
uery for bringing the
■t into force, took ciled
l)e put in motion at oiiee
,vhere within it. It '*
le prohibitorv and peual
le Act are only to cowe

in any county or city
idoptiou of a petition to

B.N.A. ACT, ». 92 (9).— LIQUOR PROHIBITION. 1049

that effect by a majority of electors,
but this concUtional application of
tliese parts of the Act does not con-
vert the Act itself into legislation
in relation to a merely local matter.
Tiie objects and scope of the legis-
lation are still general, viz., to
promote tem[)erance by means of a
imiform law throughout the Do-
minion.] That is the extent of
tiiat case. It was explained in
Hodge V. The Queen. '* It aj)-
penrs to their Lordships tiiat
llusseil V. The Queen when pro-
[leiiy understood is not an authority
in sup[)ort of the ai)pellants' con-
tention, and their Lordships do not
intend to vary or depart from the
reasons expressed for their judg-
ment in that case. The principle
which that ca.se and the case of the
Citizens' Insurance Company illus-
trates is, that subjects which in one
aspect and for one ptu'pose fall
within se(!. 92, nuiy in another
aspect and for another [mrpose fall
within see. 91." Now I claim
the Iienelit of that. They are dis-
tussiug Kussell v. The Queen
aud tlii'y say that the subject-
matter of Rus,sell v. The Queen is
oue which in one aspect might fall
under Dounnion authority, aud in
the otiier aspect may fall umUir
provincial authority. So that
llussell I'. The Queen as explained
ijy Hodge v. The Queen goes to
support our contention that there
way be on the same subject valid
Dominioii legislation and valid
[iruviucial legislation. [Lord Her-
sehell: Suppose the I3onnnion
Legislature had not passed any
legislation, wouhl it be within
the power of the provinces to pass
legislation on such things as poi-
sons?] The provinces are in the
siiuie i)ositiou as before the Union,
and until the Dominion legislates
the provinces can. Att.-Gen. of
Outurio I'. Att.-Gen. of the Do-
uiiuiou [ante, p. 302; in P. C.
Feh. 24, [189-1] A. C. 189; 03
L. J. P. C. 59]. [Lord Herschell :
The provision that poisons shall
not be sold except uuuer certain

restrictions is a regulation with re-
gard to that particular trade, and
it is hardly conceivable that that
should be intended to be taken
away from the provinces and that
there siiould be nothing at all done
except by an Act dealing with the
wiiole Dominion. Many other in-
stances couUl be put. The ques-
tion is, where is the line of demar-
cation between these matters of
local and general regulation to be
drawn ?] We claim this is a valid
regulation; a regulation so well
known that there is no conflict
with the Dominion legi.slation.
[Lord Watson : Sir Montague
Smith said, in Par.sons' case [ante,
pp. 258, 2G3, full reference above],
that there may be three kinds of
regulation. It may belong exclu-
sively to the provinces. It nmy lie
that the Dominion can exclude the
provinces from exercising some
statutory power, and it may also be
that the Douniuon have the power
to override entirely the provincial
legislation. [Lord Herschell :
What this Board said in Russell v.
The Queen [ante, pp. 129, 133, full
citation above] was that, although
it may be a local matter exclusively
within the province's jurisdiction,
when legislating for its own pro-
vince, and the local legislation is
confined to that, the legislation be-
comes a ilifferent matter, and not
merely a local matter — aud, there-
fore, not excluded from the Do-
uniuon Parliament when it is dealt
with as a matter essentiidly with
regard to the i)eace, order, and
gooil government of the Dominion,
aud therefore to be treated through-
out the Dominion alike. For in-
stance, a local Act with reference
to carrying firearms might l)e pure-
ly local, and that would Ihj exclu-
sively for the local legislature. On
the other hand, you coidd not ex-
clude, nor coukl it be intended to
exclude, the right of the Dominion
Parliament, if it thought fit and
necessary to t<ike steps for the
safety of the whole community, to
make more stringent regulations,

n;iwn.i«uiy:-.,t4^'4iwnBiWi<««mKna

1050 B.N. A. ACT, s. 92 (9).— LIQUOR PROHIBITION.

and to say, " You shall not carry
iirearms at all while war i.s going
on," &c. That would make the
matter for the " peace, order, and

food government " of the whole
)ominiou, and would not be in-
operative beauise of provincial regu-
lation within a province. That i.s,
you might have a matter of a local
nature, within sub-sec. IG, sec. 92,
anil yet the same matter might be
overridden by the superior legisla-
tion of the Dominion Parliament,
under its general powers. The
view l)eing this, if it is a matter in
which the Dominion is interested,
and which the Dominion Parlia-
ment so determines, then it ceases
to be a " merely local matter " in
the provinces, as long as Dominion
legislation exists about it.] 'J'hen
came the question on the Dominion
— the Liquor Licensing Acts of
1883—4, almost identical with this
Act. The Supreme Court to which
the questions were first referred de-
cided that the Acts were ultra vires
as far as licenses were concerned, but
not as regards wholesale and vessel
licenses. That was brought before
this Board [ sen argument and Or-
der in Council, «;<<(', pp. 144, 158.]
[Lord Hcrschell : It seems clearly
to be involved in that decision that
this Board held that the Acts did
not come within the regulation of
"trade and commerce." That Act
which the Board held to be ultra
vires was almost identical with this
Act. That case decided that " the
words 'regulation of trade and
commerce,' in their unlimited sense,
are sufficiently wide, if uncontrolled
by the context and other parts of
the Act, to include every regulation
of trade ranging from political
arrangements in legard to trade
with foreign governments, requiring
the sanction of Parliament, down
to minute rules for regidating par-
ticular trades. But a consideration
of the Act shows that the words
were not used in this unlimited
sense. In the first jJace, the collo-
cation of No. 2, see. 91, with classes
of subjects of national and general

concern affords an iudicntion tliat
regulations relating to general tra<lf
and commerce were in the niind ol'
the legislature, when CQiil'tTiinif
this power on the Dominion I'mliir
ment. If the words luid l)..i.|, i„.
tended to have the full scoiii- of
which in t leir literal meaning tlicv
are su.sceptible, the spccitic mcntioii
of several of the other cIhs^us hI'
subjects enumerated in mt, 91
would have been unneee.'iNuy ; !!.•*
15, banking ; 17, weights mul mcn-
sin-es ; 18, bills of e.xcimiifje and
promissory notes ; 15), intcivst ;
and even 21, Imnkruiitey mid insol
vency." [Lord Watson ; 1 cmi-
not understand how the rt'suh
as to the Lifpior Acts of 18H;J-|
[Gov.-Gen. Dominion v. tiie Four
Provinces, ante, p. Ill] whs iir-
rived at, unless on the ground that
they did not come within " Kej^u-
lation of Trade and Comnirne."]
Trade and commerce cannot be
taken literally ; see I'arson's case
[ante, p. 2G3, line 41 ct scr/.]
[Lord Watson : They held it was
properly within sub-sec. 13.] [Lord
Herschell : It was very like re-
gulating.] All that Ontario eliiiuis
is that, under sec. 92, tlic ]in(vin(e
can delegate to munieipiil institu-
tions the regulation — not neces-
sarily the prohibition — of the li(|nor
trafiic [see Bank of Toronto r.
Landie, ante, pj). 113, 118, line 5;
in P. C. July 9, 1887, 12 App.
Cas. 575; 50 L. J. P. C. 87; 57
L. T. 377] where this Hoard said,
" It has been earnestly contended
that the taxation of biuiks would
unduly cut down the powers of tiie
parliament in relation to mutters
falling within class 2, namely, the
regulation of trade and commerce ;
and within class 15, namely, l)auk-
ing, and the incorporation of tmnks.
Their Lordships think that tiiis
contention gives far too wide au
extent to the classes in question.
They cannot see how the power of
making banks contribute to the
public objects of the proviuee^
where they carry on business emi
interfere at all with the power of

B.N. A. ACT, H. 92 (0).— LIQUOR PROHIBITION. 1051

making laws on the .subject of
tanking, or with tlie power of in-
corporating banks. The words
'reguliition of tnitlennd commerce'
ire indeed very wide, and in
Severn's ca.se it was the vitnv of
ibe Sui)renie Court that they oper-
sied to invalidate the license duty
which was there in question. But
iinio tliat case was decided the
lupstion has been more completely
;itie(l before the Committee in
Fiirson's case, 7 App. Cas. Ot!, and
:i WHS found absolutely necessary
tliat the literal meaning of the
lords should be restricted, in order
;o afford scope for powers which
ire given exclusively to the pro-
liiicial legislatures. It was then;
ilirown out that the power of regu-
aiiiiii given to the Parliament
sioaiit some general or inter-pro-
vincial regulations. No further
ittempt to define the subject need
m be made, because their Lord-
iliips are clear that if tlu^y were to
»!(! tlmt this power of regidation
froliihited any provincial taxation
11 ik' persons or things regulated,
•0 far from restricting the expres-
-ioiis, as was found necessary in
Parson's case, they would be strain-
DH them to their widest conceivable
esteiit," These ca.ses go to show
:li:it so Far as this Board has dealt
fflli the subject, " Regulation of
Trailp" means general jiowers of
!tgiilation over the whole Do-
Biiiiou,and not such siwcific matters
i< might ))e involved in the Act
M\T in (piestion. There might
l« what was in fact a regulation
» extreme as really to interfere
»itli trade and commerce. Then
iwouhl lu" bevond the line.

Hahlane, QX'., followed: Your

Lordships in construing a Con-

Weration Act have refused to

hw an abstract line, but there

«e some landmarks which have

Wn settled by the aiithorities —

!l) Tile conferring the " Regu-

|l«tion of Trade and Commerce"

hliou llie Dominion Parliament

\^> not include the whole of

tf regulation of the liquor traffic.

The Gov.-Geu.'of the Dominion v.
The Four Provinces [ante, p. 144]
and Hodge v. The Queen [ante, pp.
135, 130], which make it clear that
certain things — at all events, in
connection with the liquor traffic-
are reserved to the provincial Par-
liaments ; for instance, Sunday clos-
ing, regulation of the time of open-
ing ; and stoppage of sale altogether
on election days. In Att.Gen. of
Ontario v. Att.-Qen. of the Do-
minion [ante, p. 302] it was found
that there were a ntuul)er of provi-
sions passed by the province which
were ai)]uopriate to a general
Bankruptcy Statute ; and it was
said on behalf of the Dominion
that these provisions ought not to
be pa.ssed by one province, but this
Board said ; " It is true these arc
appropriate provisions for a general
Bankruptcy Act, but they are also
appropriate provisions with regard
to civil rights, and, in the absence
of special Dominion legislation,
they are proper to be included in
dealing with property and civil
rights." So it may be here that there
are provisions which on general
application woidd be applicable to
a general prohibition law. [Lord
Watson mentioned Tennant v.
The Union Bank of Caiuula (ante,
p. 295) as a case in which the Do-
minion had also legislated, and the
validity of the Dominion Act was
sustained.] In that state of the
law it is well to see exactly what
has been decided with regard to
the liquor trade, and we find that
not only has the " regulation " of
it l)een decided to be in some as-
pects and for some purposes within
the provincial competence, but even
qualified prohibition has been de-
cided to be intra vires of the pro-
vince. [Lord Herschell : Say that
it was thought that for the good of
Canada Ontario ought to be sober,
that would be legislation which
coula be a good deal questioned.
But it is putting it too narrowly to
sjiy the Dominion law m»ist extend
to every province.] [See discus-
sion, ante, p. 148, on Acts of

f 1

' I

■; i'

I (

\ ■

1052

B.N.A. ACT, 8. 92 (9).— LIQUOR PROHIBITION.

1883—1.] Strong, J., in this ca.se,
8ui(l : To neither of the h'<;islntnros
is the subject of [)rohil)itoi\v li(|uor
\a\vn in terni.s as.Higiied. The ques-
tion is, have they eoneunent power?
[See ante, p. 165.]

Neweonie, Q.C, for the Do-
minion : Tiie subject of the refer-
ence mu.st he regiiriU'd as " piohi-
bition," but this Board in Russell
V. The Queen exchuU'd the subject
of i)rohibition, ns dealt with by
the Canada Ten)i)erance Act, from
provincial competency. [Lord
Herschell : This Board ex[)ressed
no opinion as to its coming within
the two. It founded its judgment
entirely upon the earlier part of the
section — its coming within the
general power to legislate for all
Canada. Now the provision at the
end of sec. 91 is to the effect that
the power of the provincial legis-
lature to legislate on matters of a
merely local chai'acter shall be ex-
cluded and shall not be takeir to
extend, where the limits of the
legislation be local only, to matters
coming within the enumerated pro-
visions of sec. 91. This Board did
not decide that the prohibition of
licpior came within any of those
enumerated sections. It decided it
upon the giound that it wune with-
in the first provision. Now if you
read the words at the end of sec.
91, they imply that so far as their
limit is merely local and the effects
are merely local, the provincial
legislature may legislate on matters
with which nevei'thele.«s the Do-
minion Parliament may have power
to legislate generally as being a
matter for the peace or good
government of Canada. The veiy
express words at the end of sec. 91
appear to me to imply that there
may be cases in which, you may
legislate locally by provincial legis-
lative authority, and nevertheless
the Parliament of Canada may legis-
late generally. Of course if they
had decided it on the ground that
it came within the regulation of
trade and commerce, one of the
enumerated thiugs, theu no doubt

that would have been u stroii"
lioint, but I am only s|)ciikiiij; df
tlie scope of Russell /•. The Qiurii.
That case dot's not seem to jjo fm'.
Iherthau that. Tluu is wliv it duw
not appeal- to me that tlio },'ioiiiHi
upon which the decision in 1{iish.||
V. The Queen is bused cxi'IikIis 1
the provincial pover lidin dwilin"
with the matter locally.] The main ;
part of sec. 99 of the Ciiiindii Tem-
perance Act is generally prdliiliitivi', i
and really prohibits tlie snle in those
localities into which it is limiif;lit
into force, with certain exceptiiuw,
i.e., in (piautities of l-;.,^ uniii
10 galls, [reads the y^'v\\un,sveaiile,\
p. 130.] [Lord Her.schell: Take
sanitation for example; sii[ii)osiii;,'
that the Dominion raiiiiuiRiit liiul,
with a view to the lifidlii ol' tlici
whole Dominion, passed lertiiiii n-I
gidations, and suj)posiiig iu a paiij.
eular province a contagidiis discaM'
was raging which reiuKifdit iii'ccvj
sary for the safety of all tliuse wiili- 1
in the province that iiuicli iiioiul
.stringent regulations as to tbr in
habititnts of the hou.ses should coniel
into force. Why should uot tbtl
be considered a merely local niattfi'.'I
If it is so, and you limit your legu-f
lations to the locality, wiiy is tliatl
inconsistent with the legislatidiil
which is on the same liiics a.s thatf
which is in force in the J)oiiiiimiii|
at large.] Where Doniiuion Icj;
lation has intended to oceiiin i
field and cover the whole groiiiiJ
with respect to a ceitain su
ject, it would be iniiiropei' toj
allow the provinces to iatcriVra
also in the matter. [Lord Hei'j
schell : One cannot help liavii
certain doubts whether the Pfiiliiil
ment of Caiia<lu could legislate lu
regards, say, sanitary arrangeiiieiit^
of the hou.ses of a particular town
in a province under this geucnij
power for the " peace, order, mi
good government of Cnnaiin"-
which must mean Canada nt iiirgej
It might be a temporaiy lueiiiiirt
required to meet a local exigeucj
at a particular time and in a lartij
cular town in a province. And «

OHIBITION.

B.N-.A. ACT, 9. 92 (0).— LIQUOR PROHIBITION. 1063

have bpc'ii a stroiij;

am only spcMkiiij; of

IJii.ssoU r. 'I'lii- (JiU'cu.
(H's not sccin to go t'lir-
it. Thai iswliy it dws
to nil' that tho },'ionii(l
the decision in Kiish'H
ecn is based cxelndis
ial power troni doaliiii,'
ttei'h)cally.] 'rhciiiniii
Ul) of the'C'aiiadii 'J't'in-
; is f^euerally prohiliitivi',
n'ohiltits the side in those i
ito which it is hioiiijlit |
rt'ith ciTtain exceptioi"
lantities ot I":-.- uiiiiil
■atls the voetioiijWef/d^e,
[Lord Herschell: TAf.\
or exnuii>le ; supposing
)niiiiion I'arhiinient liii(i,|
w to th»' heiihli of lilt'
linion, passed eertaiii iv-
md supposinjf iu a paiti-|
inee a contafjious disciiM'
which rendere<lit ncics-l
e safety of all those witii-
ovince that much uiorej
regulations as to the
if the houses shoidd uoiiiel
Why should not tbatj
red a merely local matter ? j
and yon limit your regii-i
the locality, why is tlmtj
nt with the legislatidiil
)n the same lines as tlwtl
n force in the Doniiniijii|

Where Dominion li';;i>
s intended to oeciipy ilia

cover the whole gi'Dimil
pect to H ceitain sn
would be inii)roiH?r iq
e provinces to intcriVrd
he matter. [Lord IM
One cannot help having
oubts whether the Failing
Canmlii could legislate
say, sanitary arrangeiiieiitj
luses of a 'particular towT
ivince under this gemnJ
)r the " peace, order, m
ivernment of Canada"-
lust mean Canada nt
t be a temporary uie«si"t
to meet a local exigtuc]!
ticular time and iu a parlij
ivn in a province. Andr

for such the Dominion Parliament
onnnot legislate, it is very dillioult
tosii|)poa(( that the provincial Par-
liament cannot.] [Mr. Neweome
read whot was said in Itussell r.
The tiueen as to sub-sec. 10,
see. 02 ; see ante, p. 13 1, line 7 {/>),
anil also read the quotations from
.illen, C.J.] Whatever is con-
ferred by the words in sub-sec. IG,
is a general grant which woulil
enable the proviuce.s to deal with
matters which are merely local and
'irivate. The word " merely " ac-
centuating the limited character of
the legislation. In the ca.se of
LTniou St. Jacques de Montreal
f. Belisle, a question was raisetl a.s
to legislation with regard to merely
local and private matters [reads
line 22 {a), ante, p. 330]. 'J'hat i.s
an illustration of what would be a
private or local matter.

As to municipal institutions the
exehisive power of the provincial
lepslatures was not intended to go
further than to constitute or estab-
lish them ; and any authority which
they may validly confer upon
ninnicipal in.stitutions must be de-
rived through, or have regard to,
the other subjects enumerated in
w. 02, which do not include the
power to prohibit. [See King, J.,
m>tc,\). 191, last line(rt).] Then
ffe sny tliat the subject of prohibi-
tion comes within the scoi)e of the
Dominion authority as legi.slating
tor the peace, order, and good go-
vernment of Canada, having regard
to the criminal law [reads Russell
i: The Queen, ante, p. 133, line 42
(«).] See also Tennant r. The
Union Bank [ante, p. 301, line
32 (rt)]. [Lord Watson: Do yon
maintain that the terms of sub-
sec, 2, .sec. 91, give to the Domi-
nion legislative power to prohibit
oraholish a particular trade ?] Yes;
because it refers to all subjects of
trade and commerce. In dealing
with a general subject, " Regulation
of Trade and Commerce " involves
abolition. [Lord Watson : If it
had lieen "Trade and Commerce,"
those words might imply abolition

a,s well as regulation, but where
the power given is expressly con-
fined to " regulation " of the liquor
trade, could they al)olish it? [The
learned coun.sel referretl to the re-
marks of Ritchie, C.J., in Reg. v.
.fustiees of Kings, ante, p. 59, line
20 (a), as to " Regulation of Trade
and Commerce " ; to the same judge
in the City of Fredericton's case,
and to Citizens' Insurance Co. v.
Par.sons, ante, p. 2G3, line 41 (6).]
Now, leaving the subject of
Trade and Commerce, we say, there
being Dominion legislation, the
field is not open to the provinces.
Since the Union, part of the
Dominion revenue is derived from
the customs and excise duty on
alcoholic liipiors. The Dominion
assumed the public debt and ex-
penses of the public services,
beside undertaking to pay large
subsidies to the provinces. If the
provinces have the right to pro-
Inbit the liipior traffic, the Domi-
nion as to customs and exci.se would
be affecto<l. And tho provinces
could not in elfect repeal the cus-
toms laws by prohibiting the sale
of articles on which custom dues
were levietl. [Lord Watson : The
provinces had no power to legislate
on " bankruptcy," yet it was alloweii
to the provinces .so to legislate as to
affect preferences in bankruptcy
while the field was clear.] Should
an insolvency law be necessary for
Ontario, for instance, the Dominion
should present such a law. For
the Dominion might well legislate
on a particular subject for a par-
ticular part of the Dominion. How-
ever, this question might be re-
garded if the Dominion had not
legislated. The field is occupied,
and there is no room for provincial
enactment on the subject. The
Canada Temperance Act had been
passed to obtain uniformity of the
law on the subject, and it would
be inconsistent to allow the pro-
vinces to create diverse legislation
on the same subject. If the pro-
vinces can supplement this system
or can enact prohibition, then you

-tfKftWtS*""

SiMiJtitwimiitH

106t B.N. A. ACT, H. 02 (9).— LIQUOR PROHIBITION.

have thorn dt'fenting tlmt whicli
was the declaretl object of Parlin-
inent.

[Lord Herschell : If thp pro-
vincinl legislatures had this power
down to the pa.s.sing of the Canada
Temperance Act, you have to show
that that power i.s gone. Can it be
gone by anything but a law of the
Dominion, which would in another
enactment be incon.sistent with it.
If the two could opemte side l>y
side without any conflict of the one
with the other, how can their legis-
lative i)owcr have been taken away
by the Dominion passing theCanadn
'lempenincc Act ?]

The Hon. Kdward Blake, Q.C.,
for the Distillers' and Brewers' As-
sociation : The (picstion is not
sp»'culative, as the plebiscite car-
ried out uuih'r the Ontario Act of
1893 lias resulted in a large ma-
jority in favour of immediate pro-
hibition. A similar result has
l)een arrived at in Manitoba. One
might suggest an Act in terms of
the questions, and then the same
difficulty would arise. [Lord
Watson : The first (juestion in-
volves a substantial issue, is abso-
lute prohibition within the com-
petence of the provinces ? The
next raises the question, does the
legislation of the Canadian Par-
liament oust the jurisdiction of the
provincial legislature in those parts
of a province wh«'re the Canada
Temperance Act has not been
adopted and is not in force ? 'I'he
next two qtiestions are quite clear.
The fifth is, if it has not power
to enact a total prohibition, lias
the provincial legislature jurisdic-
tion to regulate retail sales so as to
prohibit liquor being sold by re-
tail in quantities less than those
specified in the statutes in force at
the time of confederation? The
sixth question, I understand to be,
if they are possessed of a limited
jurisdiction such as is indicated in
question five, have the provinces
power, within those districts where
the Canada Temperance Act is
not iu force, to enact a law which

will practically imfwse the provi-
sions of the Canada Tfin|K'rnm.e
Act uiwn that part of the provinci-,
observing the limits of the Ciuiada
Temperance Act, but merely upplv-
iiig that Act without its heliig
adopted iu tlie manner spocjliiil
in the Act itself i* Then comes ilio
seventh and most importniit qiips-
ti(m relating to the iHtii section,
which gives rise to this coiitrovpisv.
One |)oint which must iieconsMciiMl
is, whether the legislntioii on
these matters — the ilrliik trnllic
prohibitions — enacted by tlie Do
minion of Canada are in milltv
and substance enactments for llic
purpose of "Reguliitiiig Trade
and (.'ommerce," or are they cniict-
ments passed for the " welfare of
the inhabitants " and witii a view-
to stqipressing drimken iiatilts,
imder the first general part of
see. 91 which precedes the speeial
sub-sections. The ilistinctlnii is
impoiiant, whether it is lf<;islatloii
uiuler the general part nf sec. 91,
or under sub-sec. 2, sec. 91, as
viewed in the light of theeoiiciiuiiii),'
exception of sec. 91]. The legisla-
ture may treat a trade by prohibition,
because on social or moral {jroiimls
it is bad for public mniais, onler,
or .safety, which are all incntioneil
in Russell v. Tlie Queen [ante,
p. 133, line 42 («), full reference
above], or, secondly, itecaiise of
some fiscal, economic, or political
— including treaty — reasons. We
say that, Imth under the general
and under the enuniemted powers
of the Dominion, the jurisdiction
to prohibit on ii"v of these grounds
rests sf ly w lie Diminiou.

'I md mode of treating a

,my be by opl'M-ing it -as a
intended to ' t— on any of
ose grounds whi> li have Iwn
nii'iitionei' Then there is a dis-
triliutioi if power. There may be,
to quote the language used in
Citizens' Insurance Co. v. l'«i'-
sons [ante, p. 203, line 50 (b)].
" minute rules for regulating pr
ticular trades " ; or, as said in
Hodge V. The Queen [ante, p. Hi,

miBITION.

B.N.A. ACT, s. 02 (9).— LIQUOR PROHIBITION. 1066

lly impose the provi-
C'umula Tt'iiiiK.TniRo
t. jmrt of Ww provinci',
1 liniitH of the t'miadn
Act, hut niprely upplv.
•t witlioiit its ln'iiig
tilt' numiior six'tMlicd
ii'lf ? Tlit'ii comes tlio
most important quos-
; to the IHth seel ion,
iseto this coiitrovpisv.
nchiimst be I'oiisidurt'd
tlio legislnlion on
rs — tlin (Iriiiii tiaflif
— onnc'ted liy tiie Do-
'niiiula arc in it'iiiity
[•o enactments for lln'
" Regulating Trado
•ce," or are they oniict-
il for the " welfare of
nts " and with a vii'w
ing tlrunkcu habits,
first general part of
■h precedes the spwiid
The distinction is
iTJiother it is legislation
;eneral part of sec. 91,
ub-sec. 2, sec, 91, a,<
3 light of the conciiidini;
sec, 91]. 'riielegisla-
it n trade by prohibition,
lociul or moral groMn<l'i
• public moiiils, order,
iiidi are nil mentioned
V. The Queen [ante,
42 (a), full reference
secondly, liecause of
economic, or political
treaty — reasons. We
oth under the general
the cnmueratcd powers
linion, the jiu'isdiction
in II Mv of these grounds
\\, he ]>'iminion.
1 mode of treating a
)C by or-ieriug it - as a
icd to f ^t— on any of
nds whiJi have ten
Then there is a dis-
power. There may be,
lie language used in
nsurance Co. c. Pa'-
, p. 2G3, line 50 {b)].
des for regulating par
des"; or, as said in
he Queen [ante, p. Ml,

line 24 (A)],h police power varying
according to the condition of the
locality ; and although it is very
ilifficult in each case to (h-aw the
line (wiien it comes to be drawn)
under Parsons' case [ante, p. 258],
Hodgt^'s (!asc [untc, p. I'Ao], and
Ihe Litpior License Acts, IKH.S-l
[antr, p. 144], I sidnnit that the
power has Ix'cn determined to be
exclusively provincial. In the case
in which this Board shall adjudicate
ibat il is a minute regulation affect-
ing a paHiculur trade, there Par-
sons' case says that it is local. In
die case in which it .shall be decided
that it is within '* the police power,"
ihen in Hodge's cn.se your Lord-
>liips have held that it is exclusively
liMol. Then, chawing that line
which is to be <lrawn in principle
in every cas*', and cutting off what
i« exclusively provincial : what falls
within these two descriptions ;
ihcre are yet regulations which
march wider ; which cut (U-eper ;
which are of more general ajiplica-
lioii ; which go beyond minute regu-
Intions affecting a particular trade ;
which go beyond simple "police mat-
tei-s"; — nnd as to these, the Domi-
uion under both its powers, the
general and the special, has the sole
regulation Thus when you draw the
line — which is not easy — and find
where the provincial jiowcr stops,
and where the Dominion power
liegins, you must find that the latter
goes on to the end, even to the ex-
tent of prohibition, and this under
the regulating as well as under the
general powei*. Taking first the
general power, the words of sec. 91,
are: " It shall be lawful" for the
Dominion " to muke laws for the
peace, order, and good government
of Canada in relation to all matters
not coming within the classes of
subjects by this Act assigned ex-
clusively to the legislatures of the
provinces." Now these general
words— leaving out the exception —
are extensive enough to grant all
powers, whether local or private, in
any part of Canada. Nothing so
minute ; nothing so local ; nothing

so great ; nothing cutting so wide
or deep, InU it is included within
these words, because they arc the
common form of words under which
the general legislative power given
to self-governing colonies lias been
granted for a long time; first of all
in instructions and commissions to
Governors, and afterwards in Acts
of Parliament. 'J'hese words are
(Iclilx-rately cho.sen as expressing
in their generality the character of
the powers that are given to the
Dominion, and they are cut down
only by the expression " in relation
to all matters not coming within
the classes of subjects by this Act
assigned exclusively to the legis-
latures of the provinces." There
is here, then, no idea of concurrence.
It was not expected that you would
find it there, for sec. 95 gives ex-
pressly two particular subjects of
concurrent powers of legislation :
namely, with reference to agriculture
nnd immigration. Further, you find
an express provision as to the degree
of valitlity which the provincial law
shall have in that cn.se. It shall
have effei't in, and, for the province
as long, and as far only, as it is not
repugnant to an Act of the Parlia-
ment of Canada. So that there is
power in each to legislate, and the
power of the province is subordi-
nated to the executed power of the
Dominion. Therefore we must not
expect to find in other divisions of
the Act a scheme of concurrent
jiowers, either express or implic<l,
and we do not find it here. Be-
cause, while there is a general power
given in these first words to the
Parliament of Canada, for every-
thing, that power is limited by cut-
ting out from it all these specified
powers which aie assigned exclu-
sively to the legislatures of the
provinces. Therefore there is u
sharp line of division ; all the things
which are assigned to the provinces
Itelong to the provinces, all the rest
belong to the Dominion. [Lord
Watson : I quite agree that there
is no such thing conferred by these
two clauses as concurrent legislation

1056 B.N.A. ACT, s. 92 >'9)— LIQUOR PROHIBITION.

upon tlie province. As I under-
stand the words conci rrent legi.slii-
tion — the legishition to be effective
must he by one orthe other. I do not
think the}' are joined together, but
the result of i-eceut judgin;ats ^/
this IJonrd linve been to establish
that there are some x wersof legis-
lation which may be exercised by
the provincial legislatures, and so
long as not interfered with by the
Dominion Parliament their exer-
cise will be effectual. This Hoard
has held that these enactments may
be overridden by an Act of the
Dominion Parliament, competently
legislating within its own field ;
but while that Parliament cotdd
override by an enactment that
comes into collision with the pro-
vincial enactment, the matter might
not be so exclusively within the
jurisdiction of the Dominion Pailia-
ment as to enable that Parliiiment
to repeal tlie provincial hiw. It
might overpower it, but not rep^'al
it. Again, the subjects which give
rise to very difficult questions are
those which are assigned to the pro-
vinces under sub-S((s. 13 and 1(5.
[Lord Herscliell : " Police regu-
lation " is a very vague te.ni. It
wa« used in Hodge's case, but it
only means something conducive
to the good order of the Domi-
nion.] And when you come to
draw the line, vou would find it very
diff5c 'Mo find what is "Police "':
ann vaat is not "Police" within
the sense in which that term is
used in Hodge's case ; and there-
fore rind it difficult to determine
what is merely local : and what is
beyond it. [Lord Davey : In
Webster's Dictionary •' Police " is
said to be a French word, and to
mepn regulation and government of
a city or county or union as re-
gards the inhabitants, That does
not carry one very far. Lord
Herschell. Supposing it was not
necessary as to the peace, oidei-,
and good government of Canada,
but it was necessary for lo« al piu--
poses that you should prohibit the
sale or the carrying of firearms, or

anything you please with regard to
them. It is difficult to sco why
the provincial Parliament slionlll
not deal with it, if it was n imrclv
local matter ; but it is dilliciilt, oii
the other haml, to see wliv, bccmso
they have dealt with it sis ;i iiicrciv
local matter, when it wmn ji lociil
mutter, the Dominion (Jovciiiinciit,
when some provision with ri'tcnMu,'
to firearms became necessary for tlie
pe.'U'e, order, and good govcriinii'iit
of the whole Dominion, slioiild h,.
thereby precluded from dcalincr
with it, or shoidd l)e unalilc to iIkiI
with it in that way. I cnn con-
ceive both dealing wi'.l' it in tliat
way. A matter may be a inrrdv
local question at one time, Imt tlii>
state of the Dominion may maki' it
sonu'thing much more than a local
matter at another time.] It niav
be suggested that there are tinliii-
lent spii'its in particular ijortions of
the Dominion, that there is a ivcii-
les^ habir of carrying firearms, tlwt
there have Ik'cu criminal oil'cncos
committed by the wanton nsp of
them, all these things point to tlif
conclusion that it is a matter for
Canadian acfion. [Limi Her-
schell : 1 do not see, ii' tliat i<
the cn.se, why the }U'o\isi<)ns iliv
cussed in Hodge v. 'i'lic Qnciii
were not Canadian.] The dilliciiltv
IS in adopting the proposition, tliiit
if your transaction is mcich' KkhI
in its natui'e, and if llicii' is tin'
exclusive power, if the fact tliiit it
is local in Province A gives that I
j)rovince the exclusive power of
dealing with it, is changed In tin'
fact that it turns out it exists al><i
locally in Province Ii, nnd that I'v
this occurrence it censes to 1h' \m\ \
and beconu's general. [Lord Her-
schell: This Ronrd said sonielliinsj
very like tlmt in Russell's (a*. |
They iiidicat«d there liiat thnii<:li
a thing might be merely local I
viewed in relation to one piirticular I
province, nevertheless it might l> [
necessary to have some genpralj
legislation for the whole of t'nnaJil
for its i)eace, order, iind g««i|
government.] May it not l»|

mrpj I

niBITION.

B.N.A. ACT, s, 92 (9) —LIQUOR PROHIBITION. 1057

plonsp with repffird to

(litflciilt to see why
111 Ptu'lianipnt shduM
I it, if it was a merely
; but it is (litl'iciilt, oil
ml, to soo wliy, licc.iiiso
'alt with it lis ii iiieivly
, wlu'ii it WHS n loinl
)oiuiniou lioveriiiueiit,
)rovisioii with reference
ecnuie necessary for tln'

iintl gooil }:o\eriiiiiem
(' Domiiiio'N shniilil W
pcluded from dealiiij;
ihovihl he nnahle to deiil
that way. I eim emi-
(U'aling'wi'.h it in tliiit
latter may he a merely
on at one time, Imt llie

Dominion may iiuike it
much more than a loonl
imother time.] It uiiiy
id that there are tnrlMi.

in partieiilariiortionsef
'.on, that there is a reck-
)f earryinp; firearms, tliiit
:? iK'cn eriminal offenecs

hv the wanton nse of
these thinjrs point totlic

tliat it is a imitter for

action. [I'onl Hei-

do not see, if that i<
whv the jn-ovisions di--
Hodf^e V. The Queni
:'nnadian.] The diflkuliy
ting the iiroposition, that
■iinsuetion is merely 1(ki\!
tnre, and if there is tl«>
nower, if the faet tlint it
n Province A gives that I

the exclusive power of |
vith :t, is chansicd hy lb-
it turns out it exists nis-
, Province B, and tlinl l')' I
rrenee it ceases to lie Im-al
mes general. [Lord IhT-

'his Board said sonietk'!

V that in Russell's m.\

licat.il there liiat lhnii?l|

might he merely W
n relation to one particular

■ nevertheless it might M

V to have sonu- gcnml
,n for the whole of CiinaJi

i)eaee, order, and p^\
lent.] May it "ot ^^l

Slid to be general where tliere is
Slid to he u .sort of danger of
contagion or disturliance spreading
over tiie whole Dominion ? But
if the matter l)e merely local
iind private, and the condition
wliicii recpiires legi.shition exists in
one [irovince only, it is conteniU'd
that the Dominion would not have
[lowor to legislate. [Lord Her-
sfhcll : Sanitary arrangements
primii facie would ho a nuitter
merely local, for which the pro-
viiiees would ha\e power to legis-
late, and yet there might he a
condition of things which rendered
<ome general sanitary legislation
necessiuy for the .sii'ety of the
whole Dominion. Lord Watson :
111 one province there may exist
an evil peculiar to that province,
wholly local, and a[)[)arently sec. 02
"Ives the local legislature tiie right
to denl with' it ; tlien it may attain
such dinien.sions as to tiireateu
iliiuger to the whole Dominion, and
in that case I should 1k' sorry to
iloubt that there is power given to
the Dominion Parliame.it to inter-
vi'iie. There may he an evil of the
smie nature which is local in each
and every on" of the provinces, Imt
it is not so clear that the Domi-
nion would he justified in that
case in applying a luiifoi'm rt>mcdy
to the whol(!. Lord Hei'schell :
.\s to the prohihition of carrying
liivarms. I d.) not think it has
lieen iiggesteil that it could not Im^
ileidt with hy a general law if
liiuiij^ht iiect'ssary foi' the safet\- of
ilip Dominion ; Itut <lo you deny
if not so fiiougbt that the province
i'iif,'ht ih'al with it hy a local law
onaeeoiint of the local conditions
timt did not exist elstiwhere?] The
ili'teniiination of the Dominion
I'iiiiiameiit as to whether legisla-
tion is beneficial or otherwise on a
|«rlieiiliir topic is not conclusive.
If the thing is within their power,
and they decide, as a matter of
i«>licy, that they ought not to legis-
liite, that does not differentiate the
nises. 'I'hoy may prefer that
(.'aimda shovdd be friHj ratlier than

S 2340,

solier. [Lord Her.schell : Does
not sec. 91 iioint to this, that if it
can lie brought within any of the
enumerated clauses, and it is legis-
lation confined to the locality — it is
priiiin facie within the provincial
powers ? At the end of the clause
a distinction is drawn between
those enumemted clauses and the
;.>eneral words at the beginning.]
Whei'(! there is a distinct loc^il
aspect, in which the local legisla-
ture deals with the subject, I agree
the local legislature has the juris-
diction. The difiiculty I feel is
that where the asiiect is the same
there is a double jurisdiction.
[Lord Hersdudl : ^ " , cannot in
this ca.se lay down ai. . [iroposition
in such terms as to cover all cases
and settle the confines of .sees. 91
and 92.] The express object of
the last paragraph of sec. 91 is to
deal with the effect of enumeration,
and not to deal impliedly or indi-
rectly with the effect of that which
is outside of enumeration, and
within the general powers. The
very jiurpo.se for which enumera-
tion took phice was to avoid doubt
and conflict on certain subjects
as to whether they fell within the
one or the other, and that purpose
would not he fully accomi)li.shed
without an express provision taking
the ont! set of specified iirovisions
out of the operation of the otiier.
[Lord liL.'rschell : Take the case of
a postal service strictly confined
within the limits of the province
from house to house. That would
he a mei(dy local matter if anythiug
was; but, being a postal .service, it
is not to he rleeiued to W' merely
confined to that. The object of
the paragraph at the end of .sec. 91
was to exclude from sub-see. 10 of
sec. 92 certain things that other-
wise would distinctly have been
within it.] My argiKiicnt d(K>s not
go so far that Canada could, by
legislating for all or more than one
province, th'al with strictly provin-
cial topics, lH>caii.s<< that would he
absolutely deslruciive of the pro-
vincial powers. The principle is

i! «l

il 1

1058 B.N.A. ACT, s. 92 (9).— LIQUOK PROHIBITIOX.

tlint tliPiv nio two nspocts iind two
piirpnscs of lof^islatioii. Ilodffd v.
Tht' Qiioeii [aiitc, p. Ill, lino .321.
For oxiMiiplo, tako tho ciises oi
lic'onsos fo'" revenue. The express
power of sub-sec. 9 is for raisinj^
a reveiiiK!, and it has Ijeeu de-
cided that limits the power j^rauted
in respect of licenses in that
aspect — that umler sub-.sec. 9 it
must be for the piu-pose of raisiii<>f
a revenue. But that leaves that
same subject-matter to be dealt
witli under police power: and
leaves it to be dealt with uialer
a still different as|K'ct by the Donn-
nion, either inider the {general or
under the eiunnerated powers.
How widely to be dealt with by
the Dominion is one of the points
to be disposed of. Ihit the same
subject cannot bo dealt with by
both under tlie same aspect. Under
sec. 95 a concurrent jjower is "liven,
but nowhere else in the Act.
[Lord llerscheli: At present tlie
Dominion Parliament has power
to make laws for the piupose of
tlie " order and <i;ood {government
of Canada," in relation to all
matters not williin tlie classes of
siiiijects. Smv if a matter can
only 1m' fouiKJ in se»;. 92 under
sub-sec. l(i, and if you can show that
tlier.- is a Dominion [lurpose to be
served by dcalin;^ with something
existing throughout the Domiiuon,
then it comes within the general
Dominion power and couhl not
1h' within the class of subjects
prescribed, liecause it would not be
merely of a local nature, but yet it
might deal with the same subject
matter wliieh the province could
deal with itself as being merely
local.] if you iind some purpose
or asjM'Ct, to use the plirase wliieh
has Ihh'U used [Hodge v. The Queen,
ante, p. 1 11, line .'12 (a)], in which,
from a federal point of view, legis-
lation shoulil take place different
from the puritose or aspect for
whicli it is suggested the province
should legislate under " merely local
or private," there is a right to
legislate, and there is no difficulty

about it. But when the purpixe nr
asjiect in which you luv ilenlincr
with a subject is the siiiiic, there is
no right in both to legislm,. ; mid
if there is such a right, I lull tln'iv
to find any ground upmi wliieh to
say that the Dominion power slmll
l»redominate. There is n |iiMvisioii
that if it is within the einiiii(>nitiMl
powers that it shall iireiloiiiiiiate;
but there is no provision tliiit if it
is within the general |mi\vci> it
shall predominate, and tliiivfoiv
you find, and must grai)|)lc witli the
fact that there is then a coiitliii.
If you grant the premiso, ilmt ilic
subject is within llie jurisdiction i.j'
the Dominion, the Doniiiiioii nnn
is not so shortened but that it is
entitled to look at the eonditieii
and circumstances of the people
throughout the whole or in anv
part of the country, and if vaiyinji
circumstances exist with icIVivncc
to the evil requiring var^•ing legis-
lation in different parts, it is en-
titled and bound to apply tlie pro|Mi'
legislation for the reni('<ly of tin'
general (!vil. [Lord lUrsuIiell:
That is a very diflicult i|uestioii.
If there is anything clear, it is that
this legislation in sees. 91 ami \)'l
was to give the provincial piulia-
meiits power to legislate for tliiiii;s
within the [irovince in so far as it
was necessary to keep them to ii
[H'ovincial parliament. One can-
not shut one's eyes to that, heeansc
it is exclusively vx-hijpollirsi of a
merely local character.] The Cana-
dian Parliament could piovide for
the case of a particular provinci'.
[Lord Hersehell : The sde nf in-
toxicating li<piors was a mailer
which hadlieen in every oiieol'llu'se
confederated provinces bet'ore tlu'
I'^nion : There was legislation in
each one of the provinces; and it
it was a matter that was intended
to be taken from the pro\ inces ami
given to the Dominion, one would
lia\e expected to Iind it in one (il
the .specilically enumerated idansis
il. s(!c. 91. it is not lik" a new
thing which has arisen.] Yes, but
the gencnd character of the legi<-

B.N.A. ACT, s. 92 (9).— LIQUOR PROHIBITION. 1059

r?fi

latioii which was in onch province
WHS l'i>r the ro{»iiliition of the traffic
oiti'iiile i'l connection with liccnseil
houses. Tiie generally e.xchisive
ihanuter of th< jjrovincial i)()wer
must l)e rccogi'ized and npiield by
ffpudiating tlie doctrine of double
jiiris<li('tion in the sense I have
indiciited. Citizens' Insurance Co.
r. Parsons [ante, p. 20 1, line 9 {/)),
(nil ri't'erence above] lays down the
|i, :■■:• le which has been followed
that the sjlieme of the Act
\, sclieme of nuitnally exclusive,
1111(1 not of concurrent or ov<'rri(ling
|Ki\V('is. [Lord Watson : Take tiie
i;is(' of bills of exchange- and pro-
missory notes, do yon suggest that
in the absence of legislation by the
Douiiniou Parliament the provin-
cial parliauKMit could not give any
spw'ial rights to the holder of a bill
nf exchange or of a [)roinis.sory
uoto as against his debtor ?] I
ilo. 'J'liat would come within Mic
liiml of sue. 91. " NotwithstJind-
;ii;;aiiylhing in the Act contiiincd,"
ilit'V are exclusively within the
imwiTof the Parliament of Canada.
It Jiappeiis with regard to this
iliiit jiroperty and civil rights " is
imt into the other jtart of the Act,
liiit notwithstaiKling that by sec. 91
I'ills of exchange arc excli'><ively
within the powi^r of the Parliament
lit Canada. The fundamental law
nro|;nises a possible variety of
in -existing provincial laws. It
nrofiniscs the fact that ther<' were
ilifffient laws in the jirovi 'cs, and
tile I'undamental charter rH>vides
tliat until the Parliament of Canaila
alter if, the provincial law shall
Muiiin. 'I'hcn there always was a
law; hut by whom could that law
lie elianp'd : by whom could it be
niKuliMl: l)y whom couhl it be
Mi|i|)leiniiited ? By the Parliament
'if (.'anada, and it alone. This
iliwv of construction is not
iilfirted by such decisions as C-ush-
iiig r Diipuy [ante, p. SO], and
ilie later insolvency cases. [Lord
iMvey nicnticmod L'Union St,
■liie(|iies de Montreal v. Belish; as
l«iug a case where it was held tho

province could pass a law winding
up a particular com|)any.] Yes,
then Hussell r. I'lu! (iueen [ante,
p. l'2[)\ gives us the concrete
case and the principle. There the
validity of the Canada Tem{)erauce
Act was established. It was held
that the subject did not fall with-
in any subjects assigned cxclu-
si\t'ly to the jtrovincial legislatures.
[See (lute, \t. 131, line 5 from bot-
tom (/;), and pp. 132, 133.] [Lorrl
Ilersclicll: Suppose that in a [)articu-
lar province there was a provision
that contagioiis-diseas«id am'mals
should not go to a ]«irticular market,
woidd that be extra-provincial be-
yond the power of the [)rovince?]
There is a general law on the sub-
ject ; but, if there were not, there
might be many of these to[)ics dealt
with within the |)ro|)er limits of
locid regulation. 'I'hc lin(> in each
case is drawn with reference to the
principh' laid down in Hodge v.
The (^ueen, and, when once drawn,
you lind a purpo.»e and as|K!ct local
which gives jiu'isdiction exclusively
to the pro\ince, and beyond that
j)urpose an<l aspect the subject is
within the Dominion jurisdiction
only. The aspect and purpose with
which the local legislature was ad-
judge I to have a power in Hodge
V. 'I'lic t^ueen was in reference to
the (liifercnt local conditions aris-
ing in small conn, .unities, such a.s
cities, towns, and villages, for the
preservation ;.f local order in minor
matters, and, although it may be
ditlicult to .say that preservation
of local order is a minor and
minute regubitiou, and that it is
not engrafted u|»on the same view
which is diiccted to prevent
drunkenness, and the preservation
of decency, and which is directed
to a keej)ing up of morality, yet that
is the distinction u|)on which this
Hoard in Russell r. 'i'hc Queen and
Hodge i\ The Queen held that pro-
hibition was within the Federal
rcgidation and police regulations
witiiin the local power. Now the
Canada Temperance Act occupies
the Held, uml it is impossible for

8x 2

i I

•M I

1080

B.N.A. ACT, s. 92 (9).— LIQUOR PROHIBITION.

thp provincial legislature — it having
been coini)etently legislated upon by
the Dominion Pailianient — to legis-
late npon it again. [Lord Hersehell :
But suppose the Dominion Parlia-
ment has eome to the conelusion
that it is for the "g"od order and
well-being" of the whole of Canada
that the Temperance Aet .should be,
at least, promoted to a eertain ex-
tent. Is it necessarily inconsistent
with that that a provincial legisla-
ture might supplement that legisla-
tion by other legislation because it
wai considered that in .some parti-
cular provinc(> there was more
urgent need ?] What this Board
has decided (by Russell r. The
Queen) is, that the law which is
piussed is II general law, notwith-
standing its adoptive nature; that
the opportjuiity of uniformity it
gives by making a provision under
which in various local conununities
all through Canada it might be i)ut
in force is a suificient geneiality
and uniformity if generality and
imiformity are required in order
to the exercise of Canadian legisla-
tive power. Tiie Canadian 'I'em-
l)erance Act is general and uni-
form, although it merely provides
a machineiy by which different
locidities withiri the Dominion
nifiy at tJieir option and election
put the provisions into force.
It is a(h'quately general and
uniform, though c.r facie it con-
templates that it will not be luii-
versally a[)|»lied. Again, it is
adequately general and uniform
although it provides that unless the
test was successfully applied of
a local demand supported by a
nuijority at an election there ought
not to be this prohibition which
on the.se conditions, and on these
alone, it was intended .should !)<>
applied. Russell's ca.se dix's not
decide that the power of I'arliament
is limited. That point is expressly
reserved : but what is decided i.>;
that the jwwer of ''arliament to bo
com|)etenlly ordain«'d nnist l)e cap-
nble of operation generally all over
the Dominion : yet that this law,

whose practical and contenipl.tto,!
operation was not general nor iinj.
form in api)lication and in opoiii.
tion, was a competent exci-cis.. „{
that power. [Lord Hersehell : Docs
the fact that the Parliani..|it (,f
Canada has .said that whcipvcr
people want to prohibit bva ccitHin
majority there shall Ikj proliiliitidn;
render, in every f)lace where flnn-
do not adopt the Act, the Idciil
legislature powerless to make
regulations of the liquor tiallii'
short of i)/ohil)ition ? Lord Wat-
son : The question then uriscs.
Is supplemental legislation a prac-
tical repeal of the option given In
the general law?] The Act is
a decision of the Parliament of
Canada to take up a question ami
legislate ni)on it. [ Lord Ilerschrll :
Has not Hodge r. The Qiupm
decided they have not done that,
becaus(> Hodge r. The Queen 1ms
siiid that in districts where tin- .Vet
has never Ikm'u adopted, and wliciv
there is, therefore, not i>r()lnl)ition.
it is still competent for the provin-
cial legislature to enact rc;,'Mlati(.ns
as to lime and idaccs within which
drink may be supjilied ? That in
fact, where the Act has not Wvn
adopted, has it not left open tu
the local legislature cveivliiin;:
short of prohibition?] Tlnit Mia\
1m> so within certain limits. But
I contend that the i'arlianiont of
Canada has tlone this ;is ctl'eetuall\
as if it had said : " Tiieiv sliail
b(' no other interference an<l m.
other condition imposed hv anv
other body with reference io this
matter." One reason is that lejri-^-
lation by the Parliament of Canadii
«'xcliides all others, and, seeondly,
because it has declarei! that this
was a general matter, and nolonjiei'
merely local or private. In faei
the Parliament of Canada has ex-
haustively dealt with tin' whoK'
topic.

If the a.sjK-ct anil piuport of
the legislature is to diminish drink-
ing and nnvintaiu the rospit
ability of a licensed hon.se, that is
one thing. That is to do with

B.N.A. ACT, s. 02 (9).— LIQUOR PROHIBITION. 1061

mwi

ibings wliicli may incidentally
affect tlio consumption of liquor.
But tlint which is cffeetuivlly nntl
<iil)stantially nnd largely restrictive
ami practically prevents consump-
tion'loos prcicnt manufacture and
imiK'tiition. It is impossible to
sn niiinufacturc is merely local or
pnviite. Sec. 121 makes the whole
country one for connnercial pur-
[loses. If yon stop the .sale of an
article, yon stop consumption antl
uiiuinfiicture. It cannot he de-
cliiri'il that one province is so ex-
ilusivcly interested in the i)rohil»i-
tion of an article, which it has been
in the habit of imjiorting from
;iiiother province, that it l)econies
a subject merely local. It may
Ik a question in the future how
far, even with Hodge j'. The
Queen in their favour, the local
authorities can go in the way
of restrictions. [Lord Herschell :
1 cannot draw the line between the
restrictions in Hodge r. The Queen
and the restrictions in the Ontario
.\ct. Yousjiy it virtually prohibits,
Init it merely comes to this, that it
iwiitcs new obstacles in the way of
(ilitaining drink.] This particular
tiailc or conuncrce has always been
liifllily taxed, and is a large s(»ur(!e
i>f revenue to llu^ counti'v. It is
iei.'ulale(l in the liscal sense; and a
^t'l" siibslanlial |)Mrtion ol the
imlilic reveiuic in the provinces
Ipel'oi'c confederated, and in the
Douiinion since, was and is derivcil
froir this source. C'anada was
j:i'en a power to raise money by
luy mode or system of taxation,
Aiiii she mnlertook to pay the
interest on the public debt of the
provinces, and also to pay yeiu'ly
ii sulisidy to the provinces, and this
she had to do out of these means
nf raising revenue. Can it be
Niid then to be a merely local or
lirivate matter within the province
to prohibit the .sjile or the mannfac-
turi' (M' the importation of a sub-
jw't which is one of the principal
purees of re\ enue ? That view,
"IKiit Ironranything else, «'xcludes
tills particular subject from the

genei'al phrase a matter of " merely
local or private " importance. Sup-
pose this was done in each province
anil to other sources of revenue,
'i'lie i)ower of the Parliament of
Canada to procure its revenue
might be fatnlly crippled. The
circumstances of the country are
such that no man can foresee the
time at which revenue can bo
raised otherwise than indirectly,
that is, by duties of customs and
excise. It is of the most .serious
inq)ort to the whole of the fiscal
system of Canada. If there be a
defeasible power in the j)rovincial
legislature of dealing with the
matter locally, that power has Ijcen
(h'feated, because the Dominion has
acted. It has decided that the
proper way is to provide for pro-
hibition, and for a repeal of it, and
for a re-enactment of it, at intervals.
Tho.se are the methods the legi.sla-
ture considered competent to deid
with the general evil. It has not
deemed it to l»e the In'st way that
greater areas like a whole province
should by one act of the legislatiue,
or by a plebiscite, Im^ subjected to
total [trohibition. It has obviously
decich'd the political (jue.stion of
which it was sole and sovereign
ju<lge that it would not do to let
so large an area dispose in every
|)art of that area of this question.
Probably it thought that therewould
Iw an enormous majority adverse in
local areas, and that tlM> residts by
such an Act would work for bad
instead of good. Competent au-
thorities must be taken to have
deci(le<l that it will not help but
that it will hin-t to go further than
this Dominion Act. As to previous
legislation, Dobie v. Board of Pres-
byterian Church [ante, p. 272]
decided that the local legislature
had no power either separately or by
concurrent action to deal with the
affairs of the corporation, and that
the I'arliament of Camida, under
the general powers to make laws
I'oi' the peace, order, and good
government, was competent in an
approiiriatc case to deal with a

I !

nil ill

■

1062 B.N.A ACT, s. 92 (»).— LIQUOR PROHIBITION.

subject which docs not nffoct the
whole of C'aimdii.

As to " Rognhition of Trade nnd
Coininerce." It is conceded if this
subject is embraced within this
cunni.'ration it 's with(h-awn from
"merely local or private" l)y the
cxi)ress termsat thecloscof sec. 1)1.
Now the extent of the power of
repnlation was not settled in Citi-
zens' Insnrance Co. v. I'arsons
{ante, p. 2(54 (i) ). What is
there stated is that tiie.se words do
not embrace any minute rule for
thi' regulation of a particular tnu!e
or the regulation of contracts ::-. ,i
particular business or trr.de in a
single ))rovince. But it was ex-
|)ressly observed that no attiinpt is
made to deflne the limits of the
authority of Canada iicyoud the
extent to which, of course, that
exception which is exjire.ssly made
goes [reads ante, p. 2G."i, .3rd par. ;
reference also made to Sedgewick,
.1., ante, p. 181, line ,'52 (/>), for
the way in which the words
" Tratle and Connncrce " are used
in contemporaneous Acts.] [Lord
Her.schcll : One cannot doubt that
great power of regulation (jf trade
must Ix- included in " Trade and
Commerce," but it is another (jnes-
tion as to whether '.he local legisla-
ture camiof impose any restriction
upon the dealing in any particular
goodswithout infringing tliat power
of the Dominion Parliament.
Lord Wat.son : Remend)er, in
framing that section, they iiad not
smaller and j.'urely local things in
view. Take, for instance, u dairy
in a province, and milk pi'odnci'd
at that dairy ; tudess it is iiiten<led
for tile market, that does not come
within the rule as to trade. I don't
see why the province shoidd not
pass a law appointing an in>peetor
to look after that ndlk before it
is consumed by the inhabitants.
Lord Halsbiny : Suppose the
wii.shing of butter in a particular
.stream nuide it unlit for human
food, surely there is a provincial
right to prohibit its .sale.] The
Dominion Government is not to

be deprived of its authorilv t„
legislate in larger matters liirmis,.
it is extremely hard to dijiw il,,,
line betw<'en local and lluisc liirT,.,.
matters. Kvery eniiefnieut wimli
says you shall not carry on mh,,.
trade in a |)aitieidar way .iiid luidir
paiticular conditions iind loiii,..
tions regulates the trade, j jlin,!,
from Citizens' Insiuanee ("n. ,-.
I'ar.-^ons, the 2nd par., «///<, p, :;(;i_
as to " Pegulation of Trade,"' .ivc.j
Now what are the pdints iju's,.
words, it is suggested, avouIiI in.
elude? They would iiu-iiide |i(ili.
tical ari'angements with iv^^mhI t(,
trade retpiiring the sanction of Par-
liament, but then that is exprcs>!v
[irovided for by .s'c. 1;J2, wlii,);
gives to the Parliament aiiil (in-
vernment of Canada all tln' peucrs
neces.saiy for perfonniug Ihr (iMi-
giitions of Canada, or any [irevincc
or part towards foreign eonnliiis.
No political arrangement cm lie
nuide, except through the iiieiliiini
of the supreme authority. 'I'lir
local authority may be, mid has
been of late years, recogni.-ed in
the making of these arrangeiiiciits,
but for all that it is alwa\>a ticaiv
nuide by the supreme goveriiiiieiii.
which aloiui is a political .inaii;;('-
ment. [Lord Ilerselull : Tlic
Board .say distinctly they do ikiI
include every particular (Iciilinj,'
with trade.] All that Cili/ciis' In-
surance Co. v. Parsons ileciilcd,
was that sul) .see. 2 .sec. 01 did not
comprehend a particular trnde in n
particuliir jjrovince. Then thai
case and Hodge's case dd (lecidc,
first, that some things aic t(Ki
minute, and secondly, that .-ipnie
things are too local to coiac witiiin
the |)hrase " regulation of trade,"
The crucial \)i\v{ of llie jiid^nicnt
in Hodge v. The (Jueen is liiat
the power *)f the proxiiicc- \f
to make restrictions in tlie iiattirc
id' |)()lice and nnuiicipal regniatidii-
id' a meridy local character I'ei' the
good government of taverns licensed
for the sale of liipair and so l'(trt!i.
[See ante, p. 141, 2nil pnr. {b)].
Tliere it was not a general Ad

mwi'

IBITION.

f its authorilv lo

K'-r iimttcrs Ixrnns,.

■ Imnl to (liiiw tlic

cal and tliosc \■,\^■^^^',•

y ciiMctinciit wliich

not cany on ym

inlar wavinid uiidcr

ililioiis ami ii>iric-

IIk' tnidr. 1 l!,,i,u

liisinancf Co. ,•

nd par., (ui/t,\,.-H\\,

lion of 'IVadr,"' S.t:]

till' |)(iiiits llicsc

ii<j;f>;cst('d, Woiilil in.

woul<l inciiidi' pdli.

it'iits with rc;;.inl Id

i the sanction ol' I'up-

U'n that is l•xp^■s^lv

l>y sf<'. 1 ;{•_», wliicii

Parliament and (id-

'anada all llic powiis

pfiroi-niinj; till' (ilili-

lada, or any inoviiifc

ds t'oifijrn couMliics.

arran'^cnu'nt Ciin liv

tliron;r|i tlio lucdiiiiM

inc authority. Tiu'

y may be, and has

years, reco^^nisid in

tlu'se arranfjeincMis,

U it is al\vay>a liciiiy

supreme f;oveiiMniiit.

is a political arraii;;!'-

•d ller.s(dull: The

listinclly they do not

y jiarticular dcidiii;^

All that Citiziiis' Jii-

V. I'arsons dccidrd,

see. 2 see. IH did iiiit

I particular Iraili' in :i

I'ovince. Then thiit

dfje's case do decide,

ume things are tee

seeondiv, that t-umi'

J local to come within

I'ejrulation ol' Inidc"

[)arl ol' tin- jud<;iiiint

. T'lic Queen is that

(if the pro\iiici'» is

I'ietions in the natiiiv

municipal re;.nil;iti(iii-

ot'al character- I'ei' tin'

ic'iitol' taverns lie('ii.>i((l

i" liipior and so I'orlli.

>. 141, 2nd i)iir. (A)J

^ not a ficnend Ait

M.N.A.ACT, s !)2 (9).— LIQUOH I'UOHIHITTON. 10()8

iliulinj; with llie wholo province,
liiit an Act rcnutting to the nnuii-
tiimlity certain powers to he exer-
cised locally, it is an entirely
ilijfercnt pi'oposition to say that
ihiit involves neccssai'ily or pro-
lialdy the view that they have the
riidil lofjivc a powerol' prohihition
liM'iilh . Is it not clear that where
all Act more seriously att'eets those
lar"er considerations, ol' iin[ioi-ta-
lidM, sale, and taxation, it i^4 u
ilirper intert'erenee with trade and
innimerce than this local I'fijulationr
Tlion it has been adjudj^ed that to
|ir(iliihit n[)on .social and moral, or
<;ioands of safety, order, and peace,
i. within the Dominion Parliament :
mid I maintain that that power of
ilialin^ for that piu'pose is within
llic " |{e};ulalion of Trade and
I'nianierci' " just as much as il is
within the general powers. 'J'hal.
ilicii! is no reason why you should
nut ii'^ulale trade and commerce
\v!th these ohjects which lU'c hif.;her
lliaii tiseal : economic : or political
iilijects. Then on tiseal {^rounds
ymi may prohibit i»roduetion and
Kill may prohibit nianufaclure, as
i« shown in the instance of tobacco
ill Kni^land, and which exists
ttitii ie<,'ard to methylated spirits
ill Canada. Then there are so-
i.illnl economic ^oods, upon which,
under the powers of taxation, some
iiiipdiis are pi'etly well taxed to
ili'atli, There is a conceivable |)ro-
liihiiiiin of a paiticuhir trade on the
'.'iiiiind of a irreater ireneral interest
ill lo>tering somel hill"; else to which
•hi' existence of the jjeiieral trade
i- ilijiliidus. Therefore rej^iilatioli
II' trade and commerce does and
iiiiist include {ii'ohibition : and that
ih'.'re is no inference ajjainst the
IH'ohihition of a particular trade to
lii'dniwn from the use of the word
iV'j;ulation. It cannot be altogether
iftnoied what the Great Federal
t'onstitiitiou of the United States
has for a long time discussed with
reference to this regulating jtowcr,
«eeUileliie, CI., in City of Krede-
rii'tdii r. 'I'he tiueen [niitr, at p.
'il, line 27 {/>)]. It wouhl be

stiange, indeed, that having the
sole legislative power over trade
and commerce, the Dominion I'ar-
liameiit could not prohibit the im-
portation or exportation of aiiv
article of trade or commerce; or,
having the j)o\ver, could not jiro-
hiliit till? sale and tratKc, if they
deemed such |irohibition I'oudiicive
to the |M'aee, order, and go\-eru-
nieiit of Canaihi. There seems no
d(Mibt on the point in the I'nited
States, see Story on the U. S.
Consti., 1 ed., s. 1071.

After Ifodge r. T'he Q'"'*'" [•«'«
iiij'rii] came the Lirpior Licenses
Acts, IHH.'}-!, ease (argmncid
(liid,, p. Ill), and though we 1 ;ive
no judgment to enlighten us as to
the grounds of decision, yet it seems
plain from the proceedings in that
case that the Dominion could not
generali.se in a matter which was
purely local — purely local, as had
been decided by Ilodge r. T'he
Queen. That their attempting to
deal with that sul)jeet, to appro-
jtriate il to Ihemselves, it being a
local subject, by acting for the
whole Dominion and appointing
their own oflieers, did not alter the
character of the Act or deprive the
provinco of that power which they
had under '' mei'cly local oi' pri-
\ate," thai it remained a local and
private subject, and therefore the
Doiuiniou liiccnse Acts were void
while the local license Act was
maintained. There again you Ihid
another instance of there being no
concurrent jurisdiction. It was the
same thing in the same aspect, and
therefore the power did not exist
in iioth. Ilodge /'. Thet^ueen had
decided tlie power was in the pro-
\ince, ami therefore it could not be
grasped by the Dominion by an
enlargement of the area. The
ISth section is practically prohibi-
tion to those persons who freipieut
public houses; for although by
subtle means the section may be got
round bv clubl)in"r tosrether to buy
a dozen bottles, yet for all the |Mir-
poses with which the Domiiiiun is
concerned it i> prohibiiion.

' .;,

■ t-

■

■i

,<.

■
ilil,..

1064 I3.N.A. ACT, H. 92 ({)).— LIQUOR PROHIBITION.

Att.-Okn. ok
Ontario i'.
Att.-Gbn. of
THB Dominion.
Judgment.
JajtA AVatsun.

MtJiUrcii, CJ.C, in reply : Tlu;
provinces have a ii<;lit to lf};islate
oil any and all of llii; matters in-
trusted to tliPin so long as they do
not all'eet sul)jo<!ts specially exempt.
And so loni^ as the Dominion Par-
liament bus not occupied tlu! lieid
the ])rovinces can deal with matter
dealt with liel'orc confederation.
If it had been intended to exempt
the liquor tralKc from provincial
legishition it would have Ix'en tsx-
pressly include<l in sec. iJl as com-
iugexdusively under the legislation
of the Dominion. Ah to custom
and revenue therefrom, the income
from shops and taverns already l»p-
long to the provinces, and the fact
that this legislation may iinpinr
Dominion revenue is not a reason
for its rejection.

0 May JHnCi.

The judgment was read liy Lord
Wat.son [there being also present
Lord Halsltiiry, L.C, L(ud ller-
schell, Lord Davey, and Sir Richard
Couch].

Lord Watson : "Tiieir Lordships
think it expedient to deal, in the
lir.st instance, with the .scveiitii
ipie.stioii, iM'cau.se it raises a practi-
cal is.sne, to which the able aigu-
ments of counsel on both sides of
the Par were chielly directed, an<l
al.so becuu.se it involves considera-
tions which have a material bearing
upon the answers to lie given to the
other six (piestions submitted in
this appeal. In order to appreciate
the merits of the controversy, it is
neccs.sary to refer to certain laws
for the restriction or supjuessiou
of the li(pior traffic, which were
pas.sed by the legislature of the ol<l
province of Canada before the
Union, or have sinci- In-en enaete<l
by the Parliament of tlu; Dominion,
and by the legislature of Ontjirio,
respectively.

"At the tiuM' when the Pritish
North America Act of lH(i7canic
into operation, the statute liook of
the old province contained two sets
of enactments a|)plicable to Upper
Canada, which, though differing

in expression, were in MiliMim,.,.
very similar.

"The most recent of these eiiuci-
ments were endiodied in ilic 'l\.|||.
peranee Act, lH(i4 (27 Si. US Vid.
e. IH.), which conferred ii|ii>ii tlir
inunici|ial council of every eimiitv,
town, townsiiip, or inedrponitnl
village, 'besides the [lowtis iii
present conferred (^n it bv law,'
power at any time to puss a liv-lmv
prohibiting the sidi- of iiiloNJijiiiii.r
liquors, and tin issue of lici'ii>(>
therefor, within the liiiiils ol' ili,.
municipality. Such liy-lnw was
not to take effect until siilniiittcd
to and ajiprovcd by a inajorily of
the (pialilied electors; and provi-
sion was made for its subscuMcnt
repeal, in <leferenc(! to an advensc
vote of the electors.

"The previous enact ments reliit-
ing to the .same subject, wliidi wi'iv
in force at the time of the I'liion,
were contained in the CiPiLsolidntiid
Municipal Act, 29 it .'it) Vict. c.
.')I. They empowered the ('(iiiiu'il
of every township, town, and in-
corporated village, and the (.'niu-
mi.ssioners of Police in cities to
make liy-laws for proliiiiitiii^ tlif
side by retail ui spirituous, t'ci-
mented or other manutaetiucd li-
ipioi's, in any inn or other lioiiscoj'
public entertainment ; Mini for pro-
hibiting totally the sale llieicol' in
shoiis and places other tliiin house*
of public entertainment ; providid
the by-law, before the (iiial piissiiij;
thereof, bad been duly iipproved liy
the electors of the muiiii'i|)iilil_v ii;
the manner jirescribed by the Act.
After the Union, the legisliitiire
of Ontario inst'rted these ennct-
mcnts in the Tavern and Simp
License Act, 32 Vict. c. .'{2. Tiny
wei'(( purposely omitted fioiii siili-
seipu'Ut consididationsof the Mtiiii-
eipal and Liipior License Act";
and, in the year 1886, when lln'
Canatla Temperance Act wa> |iii.-siil
by the Parliament of Ciiiiinbi.tlhr'
was no provincial law aiitlion/m^'
the prohibition of ]i(pior sides in
Ontario, save the Temperance Ad.
1864.

ipi.APiWIiWW

rpm "

IIIBITION.

, wi'i'i' in Mili>iiiiu.'('

rt'cont oi' these ciiiR't-
nliodicd in liie 'rem-
\mi (27 >t -JS Vi,:t.
c'onlVrivd ii|iiin the
iicil of nvcry county,
lip, or ineDi'iHii'iiteil
di's tlic powers lit
ricd (;u it liy hnv,'
tinit' to puss a liy-law
V sidi^ of intoxieiiliii;;
tin- issue of licenses
liii tho limits of tiie

Such liy-iiiw wiis
ffcct until suliniitteil
wl by a majority of
electors; and provi-
le for its subseipient
ercncc, to an adverse
I'Ctors.

ious eiiactmenlsrelat-
H' subject, wliieli were
10 time of the Union,
'd in the Consoli(liiri>(l
ct, 29 it ;{() Viet. e.
upowei'cd the CoiMU'il
iiship, town, and iii-
illii^e, uiid the Com-

Police ill cities to
's for pi'oliibitinj,' the
il of spirituous, t'ei-
;lu!r iiiaiiiifactined 11-
■ iiin or other house of
iiiiiiiieiil ; and for pro-
Uy the sah' thereol' ill
iices other than hoiisos
tertaiuiiicnt ; providcil
lefore the iinal passing'
lieeii iliily approved hy
of the iiiniiieipality in
prescribed by the Aet.
ruion, the le<,'islntiire
inserted these eiiiiet-
10 Tavern and Shop
32 Vict. c. :V2. Tiny
tdy omitted from siili-
olulationsof theJIiini-
jifpior License Aeis
year 1886, when I lie
peraiice Aet wa> juisseil
amontof Canada, tluiv
•incial hiw aiithori/iiij;
ion of li<inor sales in
c the Teuiperaiite Ait.

B.N.A. ACT, s. 02 (9).— LIQUOR rilOHIBITION. 1065

"The Canada Toinperancc Act
iif 188(5 (Revised Statutes of Ca nu-
lla, (!) Vict. c. 106.) is applicable to
all the provinces of the i)ominioii.
Its ^eiu'ral scheme is to '^iw to the
(■lectors of e\ery county or city tlie
(i[itioii of adoptinji, or declininjj to
iiilopi, the provisions of the .second
part of the Act, which make it un-
lawful for any person ' by himself,
his clerk, servant or a^ent, to ex-
pose or keep for sale, or directly
or indirectly, on any pretence or
upon any device, to sell or barter,
or in consideration of the piir-
I'liasi! of any other property, give
to any other person any into.xi-
latiiiflj liquor.' It cxpres.sly de-
I'lares that no viobition of these en-
aetments .shall be made lawful by
loa.soii of any licence of any de-
siription whatsoever. Certain re-
luxations are made in the case of
silks of liquor for sacramental or
iueilicinal [nirposes, or for exclusive
use in some art, trade, or manufac-
ture. The prohibition does not
extend to manufacturers, iniporter.s
or whoh'sale tradiTs who .sell licpior.s
in quantities al)ove a specified limit,
when they have f;ood reason to be-
lieve that the purchasers will forth-
with carry their purchase beyond
tlh' limits of the county or city, or
III' any adjoininj^ county or city in
which the provisions of the Act
are in force.

"For the [lurpo.se of bringinjj;
llie second part of the Act into
o|K'ratioii, an order of the Gover-
nor-General of Canada in Council
is required. The order must be
luiide on the petition of a county
or city, which cannot be granted
until it has been put to the \ote of
the electors of such county or city.
When a majority of the votes polled
are ad\ er.se to the petition, it must be
ili.'iiiissed ; and no similar apiilica-
tioii can be made witlr'n the period
"f three years from the da' on
which the poll was taken. "NV^Iien
the vote is in favour of the i)etilion,
and is followed hy an Order in
t'oiiii(!il, one fourth of the qualilicd
Hectors of the countv or citv nuiy

apply to the Governor-General in Att.-Gkk. ok
Council for ii recall of the order, Ontario v.
which is to be granted, in the event ^JJ'n^t'!. ,"„*!,

„ . . \I 1 , • TUB JJOMINIOR.

oi a majority ot the electors voting Judgment,
in favour of the application. Power Lord Watson.
is given to the (Jovernor-General
in Council to issue in the like man-
ner, and after similar procedure, an
order repealing any by-hiw passed
by any Municipal Council for the
apidication of the Temperance Act
of 18GI.

" The Dominion Act also contains
ail express repeal of the prohibitory
clauses of thi' provincial Act of
1864, and of the machinery there-
by provided for bringing thein into
operation, (1) as to every muni-
cipality within the limits of Ontario
in which, at the |)assing of the Act
of 188G, there was no municipal
by-law in force, (2) as to every
muiiici[)ality within these limits in
which a prohibitive by-law then in
force shall be subse(piently re-
pealed under the provisions of
either A«d, and (3) as to every
mniiici[)ality, having a municipal
by-law, which is induded in the
limits of, or has the .same limits
with, any county or city in which
the second part of the Canada
Temporiinee Act is brought into
force iM'fori' the repeal of the by-
law, which by-law, in that event, is
declared to be null and void.

" With the view of restoring to
municipalities within the province,
whose powers were affected by that
repeal, the right to make by-laws
which they had j)o.s.sessed under
the law of the old province, the
legislature of Ontario passed
see. 18 of 53 Vict. c. 5G., to
which the seventh (piestion in this
case rehites. The enacting words
of the clau.se are introduciHl by a
[ireamble which recites the previous
course of legishdion, and the re-
peal by the Cauachi Temperance
Act of the l'[>per Canada Aet of
I8G4in municipalities where not in
force, and concludes thus, — ' it is
expedient thatmunicipalities should
have the powers by them formerly
[Missessed.' The enacting words of

i i

sfo? v.- f •« h*' »t*^" iij^KW^ifi^

RtiiiiUSUinKiin

1066 B.N.A. ACT, s. 02 (0).— MQroH riioiimri'ioNr,

Arr.-dKV. OK
Ontario i'.
Att.-Okn. ov
TiiR Dominion.
Jiulgmi^iit.
Loril WiitMoii.

flic clmiHo, with tlic exception of
one or two cliiiiifjcM (»!' expression
wliieli ilo not atTect its snlisliince,
n\v a mere reinodnetion of tlie pro-
visions, not ol I lie 'rcniperaiice Act
of lH(!l,lMit of llie ixiiidred pro-
visions ol tlie Mnnieipai Act, L'it \-
30 Vict. c. 51., wiiich linil liein
oinitteil from tiie consolidated
st4itiites of file pro\iiice. A new
proviso is added, to flic eifect tlial,
' nofliiii};; in this .><ection eonfaiiied
sliall lie conslriicd info an exercise
of jurisdiction Ity flie pi'oviiiet! of
Ontario beyond tlic rcvi\al of
provisions of law which were in
t'orco at the date of the piLSsinfj of
tho Hrifish Xorth America Act,
and which the snh.scipicnt lcj][isla-
tion of this pro\ ince purported to
repeal.' The le<^islufnre of Ontario
siibse(piently passed an Act (ol
Vict. c. Ki.) for the piir|)ose of ex-
plaining that .sec. 18 was not
meant to repeal by implicafion
certain provisions of the Muni-
cipal Act, 2!) & 30 Vict. c. 'A.,
which limit its application to retail
dealinj^s.

" The seventh tpiestion raises the
issue, — whether, in tla; circum-
stances which lia\e just been de-
tailed, thepiovincial le<^islature had
authority to enact sec. IH ? In
oriler to deferinine that issue, it
becomes necessary to consider, in
the first place, wheflier flic I'arlia-
nu'iif of Canada had jurisdiction
to enact the Canada 'remperance
Act ; and, if .so, to consider in thi-
second [ilace, whether, after that
Act became the law of «'ach pro-
vince of the Dominion, there yet
remained power with the le<;isla-
ture of Ontario to enact the pro-
visions of sec. IS.

"The authority of the Dominion
Parliament to make laws for the
supjH'cssion of licjtior trallic in the
provinces is mninfained, in the first
place, upon the {ground that such
iegislntion deals with matters all'trf-
iiifij * the peace, order, and };ood
{government of Canada,' within
the meaning of the introductory
ami generul enactments of sec.

5)1 of the Urifish North AiiMii,,,
Act ; and, in the secoihl phiir
upon the uroniid flint if eon, (.ins'
'the re;,'ulation of trade aii<l c.mi-
nierce,' briiifj No. 2 of fli,. (iiinii,..
rated cla>s( s of siibjccis wliiiji niv
placed under the exc|iisi\,. jn,.;,.
diction of ||i(. I'edeial I'liiliilm,,,!
by that section. Tlie>c sonici^ dt
jurisdiction are in llniii-ciw-.
distinct ; and are to lir IuuikI in
dilVerenl enactmeiifs.

" It wasappiiri'iitly com. iii|ilii|,.,|
by the fiiiniers of the liii|iti'iiil ,\,t
of 1H()7, tliiif the due exeicis,. i,!'
the enniiieiiifed powers eoiilViii'il
upon the I'arliaiiii'iit of CmujiiIh
by sec. !)I mi<,dif, occasiniiiillv
and iiicideiitally, inxiKc le^ivlnijuJi
upon matters which an. priuin
fiirii' coniinitted excliisivelv to tin.
pro\incial legislatures b\ sec. !I'J.
In order to provide aij;iiiiiM timi
colli iiigeiicy, the coiiclndin;; |kii|
of >ec. J)l enacts iIimI ';mi\
matter comiii;;- within any of thV
class<'s of sulije(!ts emiiiiciiileil in
this section shall not be dccnuMi lo
come within the .lass of mnttcis of
a local or private nature eoni|iiisi.(|
in the eiinmeralioii of the classis,]!'
subjects by this Act assigned cn-
clusively to tlu' K-gislMlurcs of \\w
pro\inces.' It was obseiveil bv
this Hoard in C'iti/eiis' ln>ni:iii('i'
('oiii|>Miiy of Canada /•. l'ais()n> (7
Ap. Ca. lOS), that llie paiiiL;r;i|pli
jiisl (inoted 'applies in its ginm
niatical <'onsfruefion only lo .\o
It! of sec. J)2.' The obscrviition
was not material to the (|ni'.<iioii
arising in that <'ase. and it docs not
appear to their Lordsliips to lie
strictly accurate. Jt appears to
them, that the language of tlie
exce|)lion in .sec. !)1 wa< nieiinf
to include, and correctly de-ciilics.
all the matters ennmeraled in ilii'
l(! heads of sec. 02, as being, I'roiii
a provincial point of \iew, of n
local or privati' nature. ll nlso
appears to their Lordships tliiit llie
exception was not ineaiif lo dero-
gate from the h'gislafi\e iiulliority
given to [irovincial legi,.-l!ilnii'S li\
these Ui sub-sections, sa\e to flic

B.N.A. ACT, M. 92 (9).— LK^UOR PROlIiniTlON. 10G7

,\|(iit of t'niililiri<; llu* I'lirliiuncnt
III ('niiiidii to <l('til witli matters
liKiil or piiviitc, in those eases
wlicii' such le^ixliitioiiisiii'cessiirily
illiiilrlltill to the exercise of llie
|,i\V(l-i coiircilcd ll|iiiii it liy tile
iMiiiiii nitive liciids di' ("laiise ill.
i'|i;il view was staled and illns-
iiiili'd \ty Sir .Monta;j[iie Smith in
I'ilizens Insurance Comjiany of
r.iiiiida /•• I'arsons (7 Ap. ('a.
:,|i. lOH, lU!)), and in CuslMn-i *■.
Diiimy (!) Ap. Ca. 11")); and it
liiis liecn recognised by this Hoard
ill Teunant r. Union Dank of
I'liimila (IHO-J, Ap, I'a. IG) and in
.Utorney-General of Ontario r.
Alterney-General of tlie Dominion
(is'.ll, Ap. Ca. 2(H)).

"'I'iie }j;eneral authority fji\en to
ijii' Canadian Parliament, hv tla-
introductory enactments of sec.
ill, is, ' to make laws for llie peace,
iiiilcr and good government of
I'linada, in relation to all nuitters
not coming within the classes of
>iilijccts by this Act assigneil I'x-
I'iiisivcly to the legislatiu'cs of the
inoviiices ; ' and it is declared, lait
mil so as to ri'strict the generality
(•f tlicse words, that the exclusive
authority of the I'ai'liamcnt of Ca-
iiiiiia extends to all naitters coming
within the classes of suhjects which
arr enumerated in tlie clause.
There may, therefore, he matters
iiul included in the enumeration,
ii|Hin which the Camidian ParUa-
iiiiiil has power to legislate, liecause
lliry concern tlie j)eace, order and
;!(|(hI government ot the Dominion.
lint to those matters which are not
>|Nrilird among the eninuerated
Milijccis of legislation, the e.\ce[)-
liuii IVom .see. !t2, which is en-
iiititl liy the c(<nclu<ling words of
^r. i)l, has no application ;

ment of Canada, in regard to all An-.-rinN. op
matters not onunnrated in sec. 91, Ontahmi i>.
ought to he strictly contlra-d to such -^'^•-^•''>- "••■

", •' -111. TUB IJOMINION.

matters as are nncpu'stionalily or JudiTnicnt.
Canadian interest and importance, lionl Watson,
and ought not to ti'cnch upon pio-
vincial legislation, with respect to

any o

f thi

clas.ses o

d)ject.s

(innneraled in see. 92. To attach
any <,;her construction to tin;
'Ueral power which, in siippl(>nu'nt

.f it

s enuuHT

aled

(low rs, IS con-

ferred upon the Parlianu'ut of
Canada liy sec. 91, would, in thou"
Lordships' opinion, not only lie
contrary to the intendment of the
Act, hut would practically destroy
the autonomy of the provinces. If
it were once conceded that the
Parliament of Canada has authority
to make laws applicalile to the
whole Dominion, in relati<in to
matters which in each province are
substantially of local or private in-
teiist, upon the assumption that

lese matters

i\\>

concern

peace, order and goo<l government
of the Dominion, there is hardly a
siiliject enumerated in suv. 92
upon which it might not legislate,
to the exclusion of the provincial
legislatures.

"In construing the intro*luet<ii'y
enactnu'iits of see. 91, with respect
to matters other than tho.se enu-
merated, which coneei'U the iieace,
order and good government of
Canada, it nnist lie kcjit in view
that sec. 91, which empowers the
Parliament of Canada to mak(!
)irovision for the uniformity of the
laws relative to |iroperty and civil
rights in Ontario, Nova Scotia, and
New JJrunswick, does not extend
to till' iirovince of (^uehec ; and
also that the Dominion legislation
thei'cliy authori/.ed is expressly de-
aiid, in legi.slaling with regard to clared to lie of no effect, unless and

Miih matters, the Dominion Parlia-
iiiiiit lias no authority to eiu-roach
ii|M)a liny class of sniijects whi<'h is
ra'hisi\ely assigned to proxincial
l<'i:islalures Iiy sir. 92. 'i'hese
imulaunts ap|H'ar to their Lord-
>iii|)s to indicate, that the exercise
"1 lt'j,'islative power by the Parlia-

nntil it has been adopted and en-
acted by the provincial legislature.
These enactments would be idle
and abortive, if it were held that
the Parliament of Canada <lerive8
jurisiliction from the introductory
provisions of sec. 91 to deal with
any nudter which is in substHUCc

1068 B.N.A. ACT, H. 92 (})).--LI(JUOU I'UOlUlHTKyN.

Att.-Obn. ok

f>NTANln V.
ATT.-dKN. OK

Tim Dominion.
JudKmi'iit.
Ijom Wiitsuii.

Uh'uI or prnviiwiiil, anil i1(m\s nnt
truly afTcct tins interest of tin;
Doiiiinion lis ii whole. 'I'lieir Lonl-
ships (Id not (loiil)t ilint some
nmtters, in their ori(;in loeai anil
])roviiu-iiii, iiii;;lit attain hiicIi ili-
niensions as to iilTeet tiie hodv jiolitic
of the Doniiiiioii, ami to jiislil'v the
Cana<haii I'ailianient in passing;
laws for their reirnhitioiioraliolitioi!,
in tlie intere>t of the Dominion.
But great eiiutioii must heohserveil,
in (listingiiisiiing lietween tiiiit
which is local and provimial and
therefore within tlic jurisdiction of
the provincial le^rislatiircs, and that
which has ceased to 1h' merely local
or provincial, and has liccoine
matter of national concern, in such
sense as to Itrin}^ it within the juris-
diction of till* Parliament of
Canada. An Act restricting the
right to carry wcaiions of oil'enee,
or their .sale to young persons,
within the province, would he
within the authority of the pro-
vincial legislature. But trallic in
arms, or the poss»'ssion of them
under such circumstances as to
raise a suspicion that they were to
l)P u.-H'd for seilitious purposes, or
against a foreign state, are matters
wliicli, their Lordships conceive,
might 1r' competently ilealt with
hy the Parliament of the Dominion.
"Th«' judgment of this Board in
llussell i: The (iiieen (7 Ap. Ca.
S29) lia.s relii'viHl their Lordships
from the ditlicult duty of consider-
ing whether the Canada Temper-
ance Act of 18HG relates to the
peace, order and good government
of Canada, in such sense as to
bring its ))rovisions within the com-
petency of the Caiuidian Parlia-
ment. In that case the controversy
related to the validity of the
Canoilu Temjierance Act of 1878 :
and neither the Dominion nor the
provinces were repri'sented in the
argument. It arose between a
private prosecutor iiiul a person wlio
had been convicted, at his instance,
of violating the provisions of the
Canadian Act, within a district of
New Brunswick in which the pro-

hibitory clauses of the Ad ||,i,|
been adopted. Hut tin- |>ii(visi(,iis
of the Act of 187H were, jn „||
malerijd respects, the snnir wjtli
those which are now einlMidicd ji,
tiie Canada 'I'einpenincc Ait nl
IHHti; and the I'ciisoiis wliicii wci,.
assigned for sustaining the viiiiditv
of the earlier, are, in liicir Lonj.
ships' opinion, etpialiy applicnlijc to
the latter Act. It therefore ii|)iN.|||'«
to them that thederi>i<in in Uii«sr||
r. The (^ueen must be M(((|iti(| as
an authority to the extent to wiiicli
it goes, namely, that the restrictive
provisions of the Act of issti.
when they have been duly hroiinjit
into operation in any provjiicijil
area within the Doniiniiin, nmsi
receivi! eilect as valid eiiactinciits,
relating to the peace, oidcr and
good government of Canada.

"That point being settled liv
decision, it becomes neeessarv to
consiih-r whether the PmliiMiiiiit
of Canada had authority to jiiiss
the Tcniperaiu'c Act id" IHSO, as
licing an Act for the 'regulation of
tradi^ and coininerce' within \\[v
meaning of No. 2 of sec. ill.
If it were so, the Parliaiueiit ol
Canada would, under the excep-
tion from sec. J)2 which lia>
already been noticed, be iil lilii'ri\
to exercise its legislati\e aiilliorilv.
although, in .so doing, it siioiiiil
interfere with the jurisdiction ol
the provinces. The scope ami
elTect of No. 2 of sec. 01 weit
discussed by this Boiu'd nl xouic
length, in Citizens' InsuraneeCom-
|)any v. Parsons (7 Ap. I'.i. 96),
wheri' it was decided that, in tin-
absence of legislation iipini tiic sub-
ject by the Canadian Parliament,
the legislature of Ontario liiui
authority to impose coinlilions, n-
lieing matters of civil ri^jlif, npon
the business of fire insurnntc.
which was admitted to be a tnuii .
so long as tho.se conditions oniv
affected provincial trade. Tlicii'
Lordships do not find it ra'ccssniv
to re-oiH'ii that di.scussiou in tln'
present case. The object of llu'
Canada Temperance Act of 18HI1 1

province, neces.si

n.X.A. ACT, s. 02 (0).— LIQl^OR PHOHiniTION. 1009

^YTT

i«, not to rcgiilati- rctiiil tnuisuc-
lioiis lictwrni those wliK ti'iidc in
|ii|iini' iuhI tlicii' nistoiiKM'H, lint to
iibolisli till siicli tniiisiu'tidiis williiii
(VciT provinciiil iifca in which its
eniu'lnu'nts Imvc \»-vn M(l(i|)t<'il \>y a
mnji'iity "I" the local diM-tors. A
IHiwcr to ri'^^iilafc, natnrnliy, il' not
nwpssai-ily, assnnics, nnlcss it is
cnlnri^i'd by the context, the con-
•frviitioii of tile thing which is to
lio miuk' the snbjcct of lef^iilation.
ill liiat view, their Lonlsliip.s are
iiimlple to regard the prohibitive
inni'tnients of the Canadian statnte
of IHhO as rcgnlations of trado and
cominerct'. 'J'hey see no reason to
modify the opinion which was re-
(ciilly expressed,on their behalf, by
Lord l)avey,in Municipal Corpora-
tion of the Citv of Toronto r. Virgo
([1H!I6] A. C.'93, and see post), in
liicsc terms: — « Their Lordships
liiiiik there is iinirked distinction to
liedniwn In^tween tho prohibition
or |)i'evention of a trade and the
r»nnlation or go\ ernance of it, and
indeed a power to rogidate and
;;ov('rn seems to imply th(> con-
liniitMl existence of tinit which is
to 1h' regulated or governeil.'

"I'he authority of the legislature
lit Ontario to enact see. 18 of !)',i
Vict. e. 5G. was ass(!it«'d by the
Appillant on various grounds.
Tile first of those, which was very
•tiongly insi.sted on, was to the
clfeet that the power given to each
province by No. H of sec. 02, to
creiite municipal institutions in the
provinoe, necessarily implies the
right to endow these institutions
with all the administrative func-
tions which had l)oen ordinarily
imsse.sscd and exercised by them
ln'foie the tinio of the Union.
Their Lordships can tlnd nothing
to siip|)oit that contention in the
lim<juage of see. 92, No. S, which,
iKtording to its natural meaning,
simply gives provincial legislatures
the right to create a legal body,
for the management of municipal
affairs. Until confederation, the
legislature of each province as then
wiiiitituted could, if it chose, and

did in some eas*>H, entrust to u Att.-Qkh. ok
miincipality the execution of powers "'''•'Anio v.
which now belong exclusively to ■^^:'iyZ'Zs.
the rariiameiit (d Canada. Since Judgniont.
its date, a provincial legislature Lord Wntnon.
cannot delegate any power which
it does not poss<'ss ; and the exti'Ut
and nature of the functions which
it can commit to a municipal body
of its own creation must ilepeiul
upon the legislative authority which
it d'rives from the provisions of
sec. 02 other than No. S.

" Their Lordships are likewise of
opinion that sec. 02, No, 0, does
not give provincial legislatures any
right to make laws for the abolition
of tlu' liipior traffic. It assigns to
them 'shoj), sjdoon, tavern, auc-
tioneer ami other licenses, in
order to tho raising of a revenue
for provincial, hx-al or municipal
pur[)oses.' It was ludd by this
Board, in Hodge v. The Queen (9
Ai). Ca. 117), to include the right
to im|)ose reasonable conditions
upon tlu' licensees, which are in the
nature of reguhition ; but it cannot,
with any sliow of reason, be con-
strued as authorizing the abolition
of the .sources from which revenue
is to be I'ai.sed.

" The only enactments of sec. 92
which appear to their Lordships to
have any relation to the authority
of provincial legislatures to make
laws for the suppression of the
licpior traffic! are to be found iu
Nos. 13 and 10, which a.ssign to
their extdiisive jurisdiction, (1)
' proiierty and civil riglits in the
province,' and (2) 'generally all
matters of a merely local or
j)rivate nature in the province.'
A law which prohibits retail tran.s-
a(!fions, and restricts the con-
sumption of liquor within the
ambit of the province, and does
not affect tran.snctions in liquor
between persons in tho province
and persons in other provinces or
in foreign countries, concerns
proj)erty in the province which
wouhl be the subject matter of the
tran.sjictions, if tliey were not pro-
hibited, and also the civil rights of

1070 B.N.A. ACT, s. 02 (})).— LIQUDR PHOHIBITION'

Att.-Oev. ni- iHTHons iu the province. It i.s not
Ontaiiio 17. iin|)(»ssililp tlmt tlio vico of iiitcni-

.\n'.- iKN. OK jH-i-iiiicc luav pifvail in iMirliculHr

TUB UOSIINION. { ... .;, .' . ' , ,

lociililU's witiini a pi'dviiicc, to siieli
■onstitiiti' its cure

Judgment.

I,onl Watson. Hii c.'cti'iit as

ipS.viil

by rest rid in;; or proliiliitin}; {Iw
suit' of li(inor a iiiiittcr of a mi-rely
local or private nature, and there-
fore falling; priind faeiv witliin
No. 1(5. Jn tiiat state of matters,
it is conectled that the Parliament
of Canada conld not im|U'ratively
enact a i)roliil)itory law adapted
nud eoidined to the re(|niremeiits
of localities within the |)ro\inec,
where prnhihition was ni'ficnily
needed.

"It is not necessary, for the

pnrpo.ses ol the present appeal, to
determine whether provincial Icfjis-
latioii for the snppivssictn of the
li(pior tiidlic, coidlned to matters
which arc pro\ ineial or local within
the mcaninj; of Nos. l.'i and Hi, is
thoi-i/.cil liy the one or hy the
other of these heads. It cannot, in
tlii'ir Lorilships' opinion, he lojiicaily
hehl to fai! within i)(>tli of them.
In sec. 02, No. 16 appears to them
to ha\c the smne ollice whit'h the
general enaclinent, with respect to
matters concern in<; the peai'c, o; de, ,
and j^ood }j;ovei nmeiit of Canada,
so far as supplementary of the
eniinicrated sntijccts, fullils in sec,

01. It

to \\v

'ial

lefj;islatni'e all matters in a jirox in-
eial seii.se local or private, which
have hceii ouiitteil from tlu* pre-
eedin<r cnnm(<ration, imd, althon;.;h
its terms are wide cnou<;h to »'0',er,
lliey were ol)\ionsly not nieani i
include provincial le;j;isIation in le-
latioii to the classes of sn!ijccts
nli'cady cnnmerat<-d.

" In the alilc and elalioriite ri;u-
ment addi'esse<l to their Lord>iiips
on liclialf of tlu^ Hespnadents, it
was pi'aetieally cont-eded that a pin-
\ ineial lefjislatiu'c must ha\t' power
to (l-.-al with the restriction of the
liiiu-*" trallic from a Incal and pro-
vincial point of vii'W, unless it he
held that the whole suliject of re-
sti'iction or alidlition is e.\clusi\i'ly
committed to the Parliament of

Canada, as lH>in<; within the w.
j;ulation of tratle and eiMuMKrcc
In that ease, tlic snlijeci, in s,, f,,,',
at lea.st as it had been ri'^nilalcd liv
Canadian leij;islation, would, liv \\{:
tne of till) concludinf; enact nicnt
of sec. 01, 1m.' excepted Injni tlic
;natters committi'd to priniiiciaj
Ici^islatures by sec. 02. I'linn liu.
assumption that see. 01 (2) ddcs
"lot embrace the rif^ht te Mippnss
a trade, Mr. Illake maintaiucij, tii.n,
whilst the restrii'iion ^>i ihr ii({ii,i|'
trallic may be competenlh m^il,.
matter of le<rislation, in a |ii'<>\in('i;i|
as w;'ll as a Canadian aspcci. \|.t
the Parliament of (,'aiiada Ims. liv
cnaetinj; the 'renipcrancc Act lif
ISSG, occnpic:! the whole imssililc
Hold of lc<;islation in cither M>|iiit,
so as comph'tely to exclude Icjiisi:!.
tion by a province. That a|)|ii'ms
to their lioi'dships to he the rcul
|)oint of controversy raise<l In ilic
ipieslion with which they arc iU
present dealinjj;: and, beiiae ijiv-
ciissin;^ the point, it may he ex-
pedient to consider the relation in
which Dominion and pro\iiici;il
Icfjislalion st.uid to eai'h otliiT.

"It has been freipienllv reco;;.
nised by this Hoard, and it miu
now be rcffardcd as .settled law,
that according; to the scheme of llic
Hritish North America Act. tin
enaelnient<^ of the Parli'iliielil ei
Canada, in so far as thcsi> aiv
within its comiietcney, nuisl evii'-
ridc provincial legislation. Hut tin'
Dominion Parliament li:is n.)aiiiliii-
rity eonferi'cd noon it by t!ic .\(t
to ri'itcal directly any pio\,iicial
statute, whelher it does (a' doe-; imi
come within tlic limits of jurixlic-
tion prescriU'd by sec. 02. 'I'iir
i('|ieal of a provincial Ai't l>y tin'
Parliament of Canada can mily I*'
ciVeeted bv repu;.'naney between it-
provisions and the enacliiient> i.f
the Doiuiidon ; and if the evistcmv
of siu'h repugnancy shonM iiccoiiii'
matter of dispute, the eoiitinvilsv
cannot be .settled bv the ;i(ti"ii
eithei ol the Dominion or ut' liic
provincial le;;islaturc, 1 ut nai't Ik'
submitted to the judicial irilMiiiiii"

B.N.A. ACT, s. i)'2 (})). -LIQUOR I'llOIIimTION. 1071

• r i' !r

of lilt' cininlrv. In flu'ir Lord-
slii|)s' <>|tini(>ii, IIh' cxpross rcpt'iil
of llio old provincial Act of IHfJl
liv llic Cm lilt la 'IVinpcraiicc Acl ol'
|!<M! was not within the anthoiity
of the Parliament of Canada. It
is true that the I'ppcr Canada Act
(if ISO I was continued in force
within Ontario, liy see. 12!) of
till' Uritish North America Act,
'until repealed, aliolislu d or idtered
liv the Parliament of Canada, or
hv the provinciid Ic^^jislatni'e," ac-
nirilin<{ to the authority of that
I'lirlianienl, 'orof that legislature.'
It iippcars to their liordships thai
iifillier the Parliament of Canada,
nor ihe provinciid le<;islulurcs, ha\c
aiilliority to I'cpeal staliiles which
llii'V could not directly enact. Their
Lordships had occasion, in Doliie
I', the 'I'einporalilies Hoard (7 Ap.
(.'ii. l-'Ui), 1(1 consider the powei' of
iv|H«d competent to the lej;:islatiM'e
of a province. In that (■a>e, the
l(';;islatnre of C^ucIkm' hail n'|icaled
;i statute continued in lorce 'd'tcr
llu' I'nion by see l'2U, which had
iliis pccidiai'ity, that its provisions
;i{)|ilicd lioth to (jnchec /Mid to
lliiliii'io, and were incapalilc of
ln'iii^f scNcred so as to make them
;i|)|)licalile lo one (tf these provinces
mily. Their liordships held (7 Ap.
Cil. 117) thai the powers conferred
'ii|i(iii the provincia' Icj^ishr ■<
iif Ontario and (^iieliec to I'l .d
and alter the statutes of tlle (dd
|«iilii!iiicnl of the province of
I'liiiada are made preei.sely co-
extensive with the powers of
I'.ii'wt lej^islaiion with which tiiese
IhhIIi's are iiiNcstcd Itv the other
iliiiisis of till' Acl of 1HI»7'; and
ili.it it was licyond the authority of
'lit' It'iiislatiirt^ of C^uelice lo repeal
-lii'iiltiry eiiaclnienis which affected
IniiIi (^iieliec and Ontario The
Mint' principle oii^^hl, in the opinion
"I ill' ir !iordshi|)s, to he applictl
I" tile pn. sent ciise. Tl." oh' 'i'cni-
licmiict Act of lH(»!r was passed
till' rpper Caniida, or in other
«"iils for the province of Ontario;
iiil its provisions, being coufined
lo tliat proviiiet' only, could not

IIB Do.'kllNION-.

.Fudgnu'iit.
Lonl Wutson.

have hoen directly enacted by the Att. Okn. m
Parliament of Canachi. In the «lvrA <io v.
present case, the Parliament of •\''''-<"'K-''- oi
Canatla woulil have nc power lo
pass a prohibitory law 'or the pro-
vince of Ontario; and (i)nl<l there-
fore have no anthoiMly to repeal, in
express terms, an Acl which is
liiuilcd In its operation to that |>ro-
vince. In like manner, the c.\pre.s.s
re|»eal, in the Canada 'l'em|)eiimce
Act of lHiS(), of litpior prohibitions
adopted by a municipality in the
proxincc (»f Ontario iiiiiler the
sanction of provincial le<;islation,
does not appear to their Ijonlships
to be within the aiilliority ot the
Dominion Parliament.

"The ipiest ion must iit'xt be con-
sidered, whclhci' Ihe provincial cii-
aetmeiils ol .sec. IS, lo any, anil if
so lo what c.slcnt, come into col-
lision with the provisions of the
Canadian Act ol IHHU ? In so far
as they do, pro\incial must yield
III Dominion legislation, and must
remain in abeyance unless and
iiiilil the A< ! of ISS(? is repealed
by the parliament which pa.s.scd it.

"The prohibitions of llie Do
minion Acl have in .some respects
an ctVect nhich may exlenil be-
yond the limits of a province;
and they arc all of a \ery slrin<^ent
character. 'I'hey draw an arbitrary
line, III cif.'jht f^allons in the ca.se of
luH-r, and at ten "gallons in the caso
of other inloxicat'!"j; rK;iioi'H, with
the view of discriminating iM'twccn
wholcsa^i .;d retail transactions.
Hclow >!.. iimit, siile.s witliin a
disti'iet wiiich has lulopteii the A<!t
arc absolutely forbidden, except to
the two nominees of the Lientenant-
(loM'rnor of the province, who are
only allowctl lo dispo.se of their
purchases in small ipiantities, for
iiietlieiiial and other specifieil pur-
poses. In the case i sales above
the liiiiil, the rule '.s dilTcient. The
inannfaetnrers of pure native wines,
from graiies grown in Canatla, have
special favour sliow:i them. Manu-
fact'ireis of other liipiors within
the district, as also merchanls duly
licensed, who carry on an e.'c-

1072 B.N. A. ACT, s. 02 (»).— LIQUOR PROHIBITION

IfilhJ

loi

Att.-Oiw. ok
Ontario v.
Att.'jkn. ok

TUB PoMINIilN.

JudgmtTt.
Lord Viiittsoii.

eliisivoly wbolesnlc Itiisinoss, may
sell for (IcliviTv uiiywliorc Ix'yoiul
till district, uiili'ss siicli dclivciT is
to \>^' iiindo in an adioinin<7 district
wIiiMi! tlic Ai't is in force. If tlio
adjoiniiijj district liapiK-ncd to Im;
in a different province, it appears
to tiieir Lorilsliips to be doiilitfnl,
whether, even in tlio al)sence of
Dominion lejjislntion, a restriction
of that l<ind conld lie enacteil liy a
provincial lej;islatnre.

" On the other hand, the pro-
hibitions which sec. is aiithori/.es
miiniuipalities to imj)ose within
their respective limits do not appear
to their Lordships to affect any
transactions in liipior which have
not their beginnin/j; and their end
witliiii the province of Ontario.
The first branch of its prohibitory
eiuiclments strikes afjainxt sides of
liquor by retail in any tavern, or
other house or other place of pidilie
entertaimneiit. Tiie second extends
to sides in shops and [ilaees other
than houses of public enterliiiii-
nicnt; l)ut the context indicates
tiiat it is o]]\\ nie.'int to apply to
i'( tail transai'l ions ; and tiiat inten-
tion is made clear by the tciins of
the explanatory Act, ') 1 Viet. <•. -l(>,,
which fixes the line lietwcen
wholesale sind retail at one do/en
of liipiia' in bottles, and the
jiallops if sold in other receptacles.
The importer or inanufactnrer
can sell any (pianlity a!io\(' that
limit ; and any retail trader niii\
do the same, proNided that he sells
the liipior in the ori^^inal paeka;;es
in which it was received by
him from the imjiorti'r or maini-
faetiirer.

" It thus appears that, in th'ir
l<Mal ap|)lication within the pio-
\ince of Ontario, then' would 1)0
considerable difference iK'twccnthe
two laws ; l)ut i( is ob\ ioii> that
theii provisions could not Ih' in
force within the same district or
province at one and the same time.
In the opinion of their Lordships,
tlie ipiestion of eoidliet between
their provisions which arisc'^ in this
case doi's not de|K.-ml u[miii their

i<Ientity or non-identity, bm upon
a feature which is common ioImiiIi.
Neither statute is impcriiti\c, tlidi'
prohibitions being of no loiv,- or
effect lU.t 1 they have b-cii \olii„.
tarily adopteii and applicl |,v |)u.
vote of a majority of the dcctois
in a ilistriet or immicipnliiv. |„
Russell V. The Queen (7 .\|., ('„.
811), it was obse-.etlDy this |Jo„|.,|^
with ref'.renee to the ('iiiiiula 'r,.|||'
perar.eo Act of 1H7S, ''I'h,. Act ii-
soon as it was passed became n l,iu-
for the whole Dominion. miiiI il,,.
enactments of the first [ ' nhn-
in<;f to the machiderv fe' , niciier
the second |);iii inl.. lorce, mok

effect and mit'lii

put III lliolioii

at once ami evcrywiicie williin il.'
No fault can be found with th.
accunu-y of that statement. Mi
tis iiiutaiitlis; it is eipially tiiieii~,i
description of the pii>vi<i..ns of
sec. \H. Hut in neither , .. i .|i
the statement mean more than . in-,
that on the passiuf^of the i.i.,:! i:
district or nuinicipalitv \ thin ii,.
Dominion or the province, n^ ;. -.'
C'lise mi;iht be, became \oleil with
a ri<;ht to adopt and eiil'oi'eeeertiiiii
liroliibitiniis, if it t!ioii;^lii 111 to do
so. But the proliibitioMs ol' iIum-
Acts, which colislitllte theiidlijcrl
and theil- e.sselice, citimol with tlie
least dc;^lee of aeeiinicy be siiil to
1k' in fon'c anywhere, until tliev
have been locally adopted.

" If the prohibitions of the
Canada TcViperaiice Act liinl hern
made imperative tliniii<:liniil the
I)oi!i nion, their Lordship-. iiii;,'ht
Imv- been eonstriiiiied by previous
authority to hold that the jiirisiiic-
tion ;il' the legislature of Oiit.uio le
pass see. IK, or any siiniliii' l;iw.
Iiad been superseded. ! li tlli.t ciise,
no pro\iiicia1 prohibitions, siiih as
are sanctioned Iiy see. IS, I'oiild
have been enfon'cd by a niiiiiici-
pidit-t, without coiainjj iiilo cini-
ilict with the pariiMioiint law el'
Canada. For the same leiiMHi,
provincial prohibiiinns in lnice
within a jiarlicular di-tiiel will

III ssarilv become in<.(M'iiitiM',

wheuever the prohibitory cliiii-e>ol

B.N.A. ACT, 8. 92 (n).~LIQlTOR PROHIBITION. 1073

the Act of 1SH() Iiiivo bpon ndnptetl

llivtlmt (listrii't. Hut t!ii '■• Ldid-

sliips can discover no ail(M|Miit<'

I jroiimls for holdiiifj limt tlirrc cx-

l-is rcpuKimncy lK'tw( fii the two

laws in the districts of the |ii'(>vinc(>

of Ontario where the prohiliitions

oftiie Caiiadiiin Aef are not, and

niiiyni'\er be, in force. In a dis-

irk't wiiieh lias, by the votes of

ii< electors, rejected the second part

i the Cunacban Act, the option is

I ilHiiisihed for tlnce years from the

toe of the jjoll ; and it liardly

Limits of doubt, that th«-re coidd

1 1*110 repugnancy whilst the option

•ivi'M by the Canadian Act was

Uvjiended. The Parliament of

I'lmada has not, cither expressly

(.r liv IniplicatitMi, enacted, that so

Itaifras any district delays or refuses

IliiiKTept the prohibitions which it

lb authorized, tlu- provincial par-

(liamcnt is to be dcbai icd from ex-

hiviMn;; the h'<;islati\e autlau'lty

IlivcM it by sec. 5)2, for the suppres-

•imi iif tlic drink trallic as a local

Ifvil. Any such Icfjislation would

j ic unexampled , and it a <;ravc

hiKslion whcthci- it woidd be law-

iiil. Even if the jirovisions of sec.

Mmil been imperative, they w<Md(l

Isiit Imvc taken away or impaired

;lii' lijllit of any district in Ontario

1" adopt, and thereby briiif; irtu

Iw, the prohibitifins of the Can..-

Iiliiiii iV't.

"Tlioir Lordshii)H, for these
Imsous. {jive a {general answer to
libi' seventh (picstion in the allirma-
rJvc. 'I'hey are of opinion that
like Ontario le<;islatine had juris-
liiutian to eiaict see. IS, subject to
Itiiis necessary (puditicat ion, that its
jpnivisions are or will become in-
]'il»nitive in any district of the
jiwince which has already ad-
I'lilcil, or may subseipu-ntly adopt,
Itlii' M"'(iud part of the Canad'
Ili'iiiiMTai Act of 188(».

"Tlii'ir Lordships will now an-
I'Tvr lirielly, in their oi-der, the
ji<li('l' <iue.stioi\s submitted by the
Ifiuvcrnipr-deiu'ral of Canada. So
|i>riis 111! y can ascertain from tiu'
jBiwiil, tlicse diiTer from the ipus-

ti 2a(o.

tion which has nlready Injon an- Att.-Orjj. or
swered, in this res|M'et, that they Ontario v.
relate to mutters which nniy pos- -^TT--f«>' 'u'
sil.ly become litigious in tlm future, J"l"^^^^^^^^^^^
but have not as yet <jiveii rise to L„'r^i \\„u„„,
any real and present controversy.
Their Loidships nnist further oli-
.serve that these questions, beiny in
their natiwe academic rather than
.iuili<'ial, arc better titted for the
consideration of the oUicers of the
Crown, than of a court of law. The
replies to \h' given to them will
neces.sarily depend u[K)n the cir-
cum.stnnccs in which they may
arise for decision ; and these cir-
cumstances are in this case left to
siK'culation. It must therefore l)«
understood that the answers wliich
follow are not nu'ant to have, and
cainiot have, the weif^ht of ii
judicial deteriMimifion, except in
so far fis tlieir Lordship.; may liavo
occasion to refer to the opinions
which they have already expre.sscil
in discussing; the seventh question.

"Answers to (Questions I. ami
If. — Their Lordsliips think it
sullieient to refer to the opinions
expressed by then! in disposinjj of
the seventh (lUesiion.

"Answer to t^ucstion III. — In
the ahsenee of contlictiuj^ le<;isla-
tion by the Parliament of Cana<la,
their Lordships arc of opinion that
the provincial Icfjisiatures would
have jurisdiction to that effect, if
it were shown that the manufiwtun'
was carried on inidcr such circum-
stnnc.'s and conditioi:-i as to make
its pri.hibition a merely local nuitt4>r
in the province.

"Answer to (»^uesf ion IV^. Their
Lordships ansvi'cr this (picstion in
the ne;;ative. !t appears to them
that the exercise by the provim-ial
le;.>;islnture of such jurisdiction, in
the wide and {lencral terms in whicli
it is cxpres.-icil, would i)roba!)ly
trench upon th(> cxcluHive autho-
rity of the Dominion Parliament.

*' .Answeis to (.Questions V. ami
VI.— Their Lordships conmd:"' it
unneci 's.saiy to ^ivv a categorical
I'cply to Cither of these questions.
Tluir opinion upon the |ioinls

) 4

107 t B.N. A. ACT, s. 02 (9).— LIQUOR PROHIBITFON.

Att.-Ohn. op

ONTAIIItt V.
ATT.-'iK.y. OF

TUB Dominion,

Orilcr in
Council.

'.*, ' t

which the (|iie.stions involve liiis
been sufTicieiitly explained in tlu-ir
answer to tlic seventh question.

"Their Lonl.ships will Iniinlily
advise Her Majesty to discluir^e
the order of the Supreme i^oiirt ot'
Canada, dated the 15 .lanuHry,

1895, and *o substitute therefor I
the .several answers to flic seveal
(piestions submitteil by the (rover-
nor-deiieral of Caii'idi, \viiicli|
have been already iutlieateil.

"There will be no eiots of \\m\
a|)peal."

The Order in Council i^ivuii;.^ effect to the al)i)vo|
iu(li»ineiit, after veeitiiiL^ the facts, was in/cr (tllu as|
follows : —

.lud^^ment of the Suprenu; Court of Canada, dated 15th .lanuirv |S!),i

oujiht to 1m' diseharjied ; and in litMi thereof there ouj;ht t(

suhsli

tuted the following; ausweis to the s.iid seven (piestions ' liereinliifi
set forth, that is to stiy : —

" 1. In answer to the 1st (Question : — That a provincial lejrisintiimj
has jurisdietion to restrict the salt; within the Provin-e ofl
intovicatin^ liquors .so loin; as its le^^isiation ilo.'s not ennllictl
with any lejj;islative provision wliii'h may be e(Mupeleiitlv iiiiula
l»y the I'arliament of (Canada and which may be in force witliiiij
the province or any tlistri'/l lli

"2. In iinswer to the 2nd Qnesti

■That

lose portion-

of tlu

ice (11 coll

Province as to which the Canada Temperance Act 180(1 is nol
in operation the i)r()vineial lc<;islaiure has such juri.-idietiiin A
is indii-tited in the answer to the 1st (Question.

'3. Ill answer to the .'Jrd Ciuestion : — That in tlu; abse

Hictin;^ lej^islatioii by the Parliament of Canada, a [iroviiu'iul
le<rislatiire has jurisdiction to |>!'ohil)it the inanufactiire ol
intoxicalini^ li([Uors within the provinei; if such ni:iiiiif:ieliiit
be carried on iindtu" sucii eircumsttmces and coiidilions us to
make its prohibition a merely local matter in the province.

'I. In answer to the llh (Question: — No useful answer can he j;iv(
to this (picstion in the absence of a pre'.'i.se stateiiient of tli(
facts to which it is intended to apply. There may Im' .som^
cireumstances in which a provincial le{;isliiture will and othei'S
in which if will not have such jurisdiction.

'5 and (5. In an.swer to the otli and Otli Questions: — The leplit
fallinjj to bi' made to these questions are sullicieiilly iiiiliciiliil

in the answers to the 1st and 7tli Qiiestioi

IS.

'7. In answer to the 7lh (Question: — I'liat the h';;ishitiiie of Oiiliiiid
had jurisdiction to enact .section IH of the Act .");{ Vicioii^
cap. 5(i., as explained by see. 1 of the A<t .) I Victoria eii|J

■!()., but that the said eiiactnieiils are opcralive on

V III

far

tlicv are not in conlli<'t with any slututoiy proMs

eoinpeti-ntly made by the Parliament of Canada and heiii;' ifl
force within the jirovince or any district thereof. |

' "iiy

The parlies to bear tlieir own costs of this appeal.

Si'(! till! Uiioslioii.'i unti; p. MVi

mm.

"7 1 ir 11

RoiimrnoN.

MUNICIPAL POWERS.

1075

'o substitute tliorffor)
I answers U) till' scv.'iij
suhinittcil by the (fuviT-j
il of CiiiiMili, whidil
alromly iiulic^itcil.
will bu no costs of tliisl

^TCIPAL CORPORATION OFI , ,, ,
THE CITY OF TORONTO . J ^PP^^f^nt.<i.

AND

Judg^nent
in I'.C,
16 November,
1895.

VIRGO Rpspondent.

By-laws. — Itvy illation or J'rr/iihilion — Pcllars and Hawkers Tradimj
in city streets — Miinicipalitij of Ontario — If.S'.O. (18H7) c. 184.
s.A9o {3)—Muiiirij>iii Bt/la'w 2153. sec. 12; Bi/-law 293'1. s. 12. 2a.

A ninrke«l distinction is to be drawn between the prohibition or pre-
vention of u trade and tiie regulation or govrnance of it, and indeed a
|H)wer to regulate and govern .seems to imply the continued existence of
that which is to he regulated or governed.

The Municipal Act of Ontario, e. IHl. s. 11)5, sub-s. (3), provides that
municipalities may make by-luws for " li ensing, regulating, and govern-
ing hawkers or |)etty chapi.ii'n and oiher persons carrying on petty
tniiles who go from place to [lace or to other men's houses on foot or
with any animal bearing or dm wing any goods," S:r.

In 181)0 the Corporation of Toronto made a by- law enacting that
licTUces should be taken out by hawker.'^, petty c'lapnieu,* and other
ix>rs()ns carrying on petty trades.

in 1891 an amending by-law was passed whir-h in effect provided
tbitf no hawkers, petty chapmen, &e., slioidd after i certain date pro-
sit'iite tlieir calling in substiuitially the leading thoroughfares of Torinito
which extended to ten miles.

Held that the by-law was ultra vires, b'cause a power to make laws
to regulate, without express wovds of i)rohibition, gives no authority to a
iiiunieipality to make it unlawful to carry on a lawful trade in a lawful
nmiiner.

AjJiK-al from the Supreme Court, Canada [see 22 S. C. 447], revers-
ing u decision of the Ontario Coint of Appeal [20 O. A. 1, '55], and the
JlH,•i^!on of Gait, C.J. of the C P., Ontario.

The Municipality Act of Ontario, ll.S.O., c. 184. s. 495,sub-.s. i3),
(Hissed in 1880; 43 Viet. (().) c. 24. s. 13, and re-enacted in the Muni-
ii|ud Act of 1882-3 (16 Viet. e. 18. s. 45)5. sub-s.) (3) ga.e power inter
(ilia to the Council of a city to pass by-laws for licensing, regulating,
aiid governing hawkers or petty cha])men and other persons carrying
m petty trades who go from place to place or to other men's houses on
fiiot or with an_ animal bearing or draw ing any goods. {See the full
^it'tion given Inflow in the judgment expresseil by fjord l)a\ey.)

Uy the by-law No. 2153, s. 12, subs. (2) pas.sed by the Municipal
('(luncil of Toronto on 13 January, 18!)0, as amended, it was ordained
liiat licences should 1k' taken out by hawkers, petty chapmen, or other
iKisiiiis carrying on petty trades.

On 2(i (ictolier, ISiH, the same numieipality passed the by-law
No. 2!)34, which amended sec. 12. of by-law No. 2453 by adding
tluii to sub-.sec. 2a., which enacted that no jter.son named and specifier
in sub-sec. 2 of that section, i.e., 12 of No. 2153, whether a licensee or
ii"t shall after the 1st .July 18!t2 prosecute his calling or tnuh- in any
III the following streets and portions of streets in the City of Toronto.
Then followed an eimmeration of the leading thoroughfares in Toronto,
and which covered, in th(^ aggregate, 10 miles.

An application to tpiash the by-law sub-see. 2a. was made, with the
ultimate residt (as set out above), that the Supreme Court held the by-
law til be ultra vires,

a Y 2

'I t

MUNICII'AL
CoUPOriATlON
OK ToUONTO f.

Vmoo.
Judgment.
Lord Diivoy.

T^76

REGULATION OF TRADES.

On apiM^iil to the .Tiulicial Committoo [IG Novomlwr ISO')] : —

Juilfjinont was delivt'ivil by Lord
Davoy as follows [tliorc liciii}; also
present Lords Watson, Ma<'na};li-
teu, Morris, and Sir 11. Coneli]: —

This is an ap|)eal from a jud<j;nient
of the Snprenu' Court of Canada,
reversing i)y a majority the previous
decisions of the Court of Appeal
for Ontario, and of Ciiief Justiee
Sir Thomas Gait. The question
for decision is whether a section of
a by-law was competently and
\alidly made by the Corporation
of the City of 'Poronto.

The section in (piestion is de-
signated as snb-sec. 'la of .>iec.
12 of by-law 20.'M, in amendment
of sec. 12 of by-law 215.'$.
Tlie last;mentioned section as
amen<led requires a license to In-
taken out by —

"All hawkers, jK-tty chapmen,
or other [M'rsons carrying on petty
trades, or who go from place to
place, or to other men's houses, on
foot or with any animal bearing
or ditiwing any goods, wares, or
nierchandisi- for sale, or in or witli
any l)oat, vessel, or other craft, or
olherwi.se carry goods, wares, or
m>'rchandisc for ^ale; exc(4)t that
no such license shal; be requii'ed
for hawking, peddling, or selling
from any vehicle or other convey-
nnee good; , wares, or m«'rcliandisc
to any retail tiealer, or for hawking
or peddling gocnls, wares, or mer-
chandise tlie growth, produce, or
manufacture of this province, not
being liijuors within the i.' aning
of tlie law relating to taveri .•< .u
tavern licenses, if the same are
being hawked or ]ieddlc<l .ly the
numufacturer or prodncei .f such
goods, wares, (<r merehaii'' ..se, or l>y
his hon 'Jide servants or employees,
having written authority in that
behalf, and such s'l \ant or eiu-
plovee siuiU ])r()iluce and cxhiliit
iiis written autiiority when i{'i|;iirc<l
so to do by any municipal or peace
officer : nor fronj any jjcdlar of
iisli, farm and garden piodiice, fruit
and coal oil. or otiier small articles
that can be carried in the hand or

in a small basket, nor from aiiv
tinker, cooper, glazit-r, harness
mender, or any person usimllv
trading or numding kettles, tiilis,
housi'hold goods or undirelln.-, or
going about and carrying with
him |)roper materials for such
mending."

Sec. 2a is the oidy pnrt cpf
the by-law now complained of.
It is in the following words: —

"No person named and sijoei-
ficd in sub-sec. 2 of this section
(whether a licensee or not) slmjl
after tlu! first day of Julv lH!)i!,
jirosecute his calling or trade In
any of the following streets nnd
portions of .streets in tiki Citv of
Toronto."

'I'hen follows an onHnieration of
eight streets in the City of Tor-
onto. It is stjited in the evideiice
that these streets conq)ri.se the liiisj.
est and most important tli()roiii;li.
fares of the City.

The .statutory power under wliicli
theCorfi <ration claim to make tliis
by-law is contained in the Muni-
cipal Act of Ontario (e. 184. of the
Revised Statutes of Ontario of
18H7), sec. •195, which .so far
as is nuiterial is in th(! followinj,'
words : —

"The Council of any county,
city aixl town se|)arated from the
county for nninicipal purjioscs,
nny pass by-laws I'or the foiljw-

ing |>urpo.sps

" 'For licensing, rpgulaiin(;, nml
governing hawkers or petty clia|)-
men, an<l other persons eanviiiff I
on jK'tly trades, or whr go from
place to place or to uiiier nien'>
houses, on foot or with nny nniniiil, j
bearing oi- drawing any jiimth
war»'s, or merchandise fo." side, or I
in or with any Umt, vc.ss«'i, or I
other craft, or otherwise ('.irryin;; j
goods, wans, or luerchandi !■ furl
sale, .•«ntl for fixing the sum I" '«'
l)ai(l tor a licen.M- for cveni-iiiiSl
such calling within the coinitv.l
city, or town, and the timr ;l)f|
licen.sc Hhall be in force:

" ' In <-Jise of counties, fjr jho-

' ! r iF

REGITLATION OF TRADES.

1077

vkliiif;, at the discretion of the
coiiiK'il, either tlie troiisurer or elork
of the comity, or tlio clerk of any
luiiuiciimlity within the county, witii
licenses, in tliis and the previous
«iil)-scction mentioned, lor side to
|i.irties a|)))lyin<i; for tliesnnie under
Mich reguliitioiis as may hv. [nv-
scrilied in such hye-hiws :

" ' Provided always that no sncli
license shall ho required for hawk-
in},', jieddling, or selling from any
vihiele or other con\eyanee any
pKxls, wares, or nierchandise, to
any retail dealer, or for Iiuwkingor
jH'ddiing any goods, wares, or niei-
chii'xlise, the growth, prochice, or
iimnufactnre of this province, not
king li<niors within the meaning
of tlie law relating to taverns or
liivorii licences, if the same are
licing hawked or peddled hy the
iimnnfucturer or producer of such
Itoodi*. wares, or nierchandise, or l>y
Ills bonAJidc servants or omployees
Iwving written authority in that
iM'hall'; and such servant or ein-
ployee shall produce luid exhibit
his written authority when reipiired
so to do hy any municipal or iieaee
officer: ....

" (rt) The word 'hawkers' in
this sub-section shall include all
persons who, being agents for per-
Mins not rcsidei;? within the county,
s'll or offer for .side tea, dry goods,
or jewellery, or carry and expose
wuiples or pattern.s of any of such
poods to be afterwards delivered
within the county to any person
not being a wholesale or retail
dealer in such goods, wares, or iner-
cimndisc!."

Keference was also madt? to sec.
503 of the same Act, whi( h occurs
iimlir tl 1- rubric " Markets." This
sectiiii: em|M)Wcr8 the council of
?very city, lown, and incorporitfed
village subject to t'le restrictions
«ii(l exreptions contained in the last
IHtreding six sections to pass l>y-
liiwsfor; — 1. Establishing markets.
'. Uegulating markets. 3. " Pre-
venting or regulating the sale i)y
retail in the public streets, or
vucHut lots udjaccut thereto, of any

meat, vegetables, grain, hay, fruit, Municipai,
beverages, smallware, anil other Cobcohatiow
articles offered for sale." P,"" Toiionto v.

I licir Lordships are not reipiired Jufjgnient.
lo construe this .section, or to fiay Lord l)avoy.
whether the words "adjacent there-
to " do not refer to liotli public
streets and vacant lots and mean
adjacent to a market. Having n^-
gard to the previou.s .sections under
the .same rubric they think the
clause is one for thi- protii'tion of
the market only, and of limited
ai>plication.

Ill the opinion of their Lordships
it cannot be relied on in jiistitica-
tioii of the section now in (piestion,
and indeed tli(> point was not pressed
by the learned counsel for the
appellants.

It appears to their Lordships that
the vi'w\ (pu'.stion is whether under
a power to pa.ss by-laws " for re-
gulating and governing" liawk«'rs,
<X:<'.. the council may prohibit
hawkers from plying their triuh- at
all in a siii)slaiitial and important
portion of the city, n<. (|iiestion of
any apprehended '.uisanc*! being
raised. It was contended that the
by-law was ultra vires, and also in
restraint of trade and unreason-
able. The twii questions run very
much into each other, and in the
view which their Lordships take it
is not necessary to consider the
si'cond qiH'stion separately.

No doubt the regulation and
go\eriiaiice of a trmle may involve
the imposition of restrictions onit.s
exercise both as to time and to a
certain extent as to [ilace where
such restrictions are in the opinion
of the jjublic authority necessary
to prevent a nui.sance or for the
maiiileiiance of order. But their
Lordships think there is marked
distinct ion lo be drawn between
the prohibition or prevention of n
tiatle and the regulation oi govern-
ance ot it, and indeed a power
to regulate and govern seem.'" to
imply the eoiitiniie(l exif-lcncc of
tliiit which i.s to be regulati'd or
governed. An examination of other
sections of the Act conlirms their

! i !

1078

REGITLA.TION OP TRADES.

Municipal
corpobation

Of TOBONTO V.
VlBGO.

Judsmont.
Lo?a Davey.

Lordships' view, for it shows tlmt
when tho h'<^i8hitiiru intciiilt'il to
give power to prevent or proliiliit it
(lid so by express words.

Their Lordsliips refer (amonj^st
others) to sec. 4HS), sub-.secs. 2"),
26, 28, 25), 44, 40, 51,iindsee. 4!)G,
8iib-se"3. 3, 13, 14, and 15. 'I'iie
languii^c of these snl»-?(etions —
" preventing or regnliiting " ; " pre-
venting or regulating and lieens-
ing" — tends to show tiiut tiie
fnimer.s of the Act ilid not intend
to inchitle a power to prevent or
prohibit in a power fo regidale or
govern. S.'veral ca.ses in tlie Eng-
li.sh and Canadian reports were
referred to in illustration of the
respondent's argument. None of
the.se cases are direct autliorities,
because the statutes from which
authority was lUu'ived to niake the
by-laws tiiere in question were
framed in terms dill'erent from tlie
statute now under consideration.
But through all tiiese cases the
general piinciple may l)e traced,
that a municipal power of regula-
tion or of making by-laws for good
government, without express words
of prohibition, does not authorize
the nuiking it unlawful to carry on
a lawful tnule in a lawful mann(>r.

It is argued that tlie i)y-law
impugned does not amount to
prohibition, becau,s(> iiawkers and
cluipinen may still e.irry on their
business in cc-rtain streets of tiie
city. Their Lordships cannot ac-

cede to this argument. The (juos-
tion is one of substance, and siutiiM
be regarded from the point of view
as well of the jmblie as of tin.
iiawkers. The effect of tiie hy.
law is practically to deprive tiiv
residents oi wiiat is aduiitteiilv iln.
most im[)ortant part of tiie citvut'
buying their goods of or (»1 tiaiiiii"
with the class of trach-rs in (|iit.s.
tion. And this ob.servation nccivos
additional foretf from the very wide
delinition given to " hawkers " in
the Act. At the same time tho
*' hawkers," itc, are excluded I'loin
exercising their trade in t|j.at imrl
of tlie city. There was no evi.
dence, and it is scarcely conceivaliie
that the trade cannot be carrioil on
without occasioning a nuisance.
The appellants in their priiitiii
case wisely disclaim any intention
on the part of the council to dis
criminate against hawkers and
jiediars in favour of perniiuitMit
sliopkeepers. No other explaiiii-
tion of th" object of the by-laws
is offered. The (juestion therefore
is reduced to a bare question of
l)ower.

Tiieir Lordships on tht' wlnlc
have come to the conclusion tliatii
was not the intention of the Ad to
give this power to the Corporation.
They therefore agree witii tlio
majority af the judges of ih.
Supreme Court, and will liuinli
advi.se Her Majesty tiiat this appiiil
be ilismis.sed with costs.

" U "U w<

\I)ES.

liis urKunu'iit. Tlic (|uos-
(> of rsiihstaiicc, iiiid slioiiM
led Inmi the point of view
of tlu! |ml>li(' as of tlir
The ftrt'ct of tli(> l,y-
)rartit'ully to (l('|tii\c tiic

I oi w'uat is atlinittcilly ilic
portaiit part of llic city (if
lu'ir fjoods of or of tnuliiii;

class of tradiTS in (lucs-
lid this oliscrvatiou nccivcs
al forcK fronj tlic very wiilc

II givtMi to " hawkers " in
At th(^ saiiu' time tin-

I's," ifcc, an'fxehidcd from

iir Ihoir trade in tUat imii

uity. Tliere was no evi-

iul it is scarcely conceivalili'

I tiaih' cannot he canioil on

, occasioning a nuisanci'.

)polhints ill their inintnl

sfiy disehiiiii any intention

part of the council to (lis

ite against hawkers and

in favour of pennaiiiMit

I'pers. No other explana-

th" ohjcct of the hy-laws

ed. The (jiiestion therefori'

iced to a Imre question (it

ir Lordships on the Vil-nlc
ome to the conclusion tliat it
)t the intention of the Ait to j
lis power to the Corporation
therefore agree witii tlu' |
ity of the judges of
me Court, and will Immlily I
Her Majesty that this a\)[K»\
missed with costs.

PRIVILEGES OF PROVINCIAL PARLIAMENTS. 1079

IIELUING AND OTHERS

AND

Appellants. Judnment

ill I'.C.

Ill-

28 July, 1806.
Kurilutt t'.
.Abbot,

™MAS AV«7;o«./..^ „ ,,, „„,

n • •/ II A' I I I ^, . Sberiff (it

J'nnlvf/cs — //(iiisr oj Asxdiiliti/ — ( imtciiipt coiiiiiut/til iii Jaw of the M\M\estx,

House — I'ower to puiiish by tiiifn-'mmmoU — Anvst of Member — II Adol. nnd

The House of Asscmhlij us a Court of llevord — // A'. A. Art, ''''• ^73,

1807, *. 5)2, sub-s. 1 : '1h\\ 2!) Vict. r. (iiJ. .v. T) : .'{8 .y ;«» Hi I. c. 3rt. *■»"'"""'•

.«. I : Ji. S. A'. »S'. (5//* Ser.) c. 3. *,y. •>(), L'O, 2!), .'ill, M.

'i'lie iiide|)eiiden(e of a Colonial Li'gislature from outside inteiferen v.
iind the protection of memhers from insult while in the di.scliarge of their
duties, are matteis part of the conslitnlion of the province.

A Provincial House of Assembly can he a court of record for the
imiiisliuient of contempt committed in the face; of the House; and the
exercise of such jurisdiction does not enter the department of .state known
as the criminal law.

A Colonial liCgislalnre cannot «'oiifer on itself the priviU-ges of the
House of Cominons of llu^ United Kingdom without express authority
Iniiii the Imperial Parliament This ant horily is given liys. .')of2H & 2'.)
Vict. c. 0.'i., Imt a further step is ictpiircd to give the right — namely, that
the provincial legislature should pass a law giving its own legishiture
tiiose privileges, immunities, and powers, &c.

It must now he admitted that the law has heeii laid down differently
fioia \\w d«!cisions of Ministers of ./iistice [»SVr ante, p. 11'], and that Ihi;
provinces of Cdtiiida rt'tain their independence, exce|>t as regards mi. Iters
aiTccting the Pe.iec, Order, and (iood (iovernment of ('anntia.

Uy sec. 92 of the Uritish North America Act, 18(57, powers to alter
their eonstitntions are conferred on the provincial legislatures of CaiKtda ;
tills iiiclu<lcs the power to pa.>is Acts detining the privileges, iininuiiitii>.s,
and powers of their respective legislaliiics, and to exempt the memhers
I'roin all actions for petitions, bills, or resolutions before either Ifon.se
of jjegi.sjature. The Nota Scotia Legislature having passed such an
Act, a mcniher of the House of Assembly committed contempt in
wilfully disobeying an order of the IIou.se to attend at the Bar to be
icpiiinnnded. The IIou.se by resolution ordered him to be Uikeii into
cii.stody by the sergeant-at-arnis, nnd commitled under the Speaker's
waniint to the common jail. Thereupon the offend«'r brought an action
lor false impri.sounient against the I'rcmicr and otliers who votetl lor the
I't'solution, and obtuined diimages.

Held, by the Judicial Committee, reversing the judgment of the
Supreme Court of Xora Scotia [20. N.S. 55J, that the Legishit ure of Nora
Sailia had power to pass the Act, nnd the Hou.se of A.sseinbly to coininil
ami punish such an otfender, and that the plea of indemnity against any
action at law for things done in the Provincial Legislature, relied on by
tlie Premier nnd other members of the House, was valid.

Ihirdrtt v. Abbot, 14 Ea.sl, \). 0") ; and The Sheriff of Middlesex, 11
Adol. & El. 273, held to apply: Barton v. Taylor, 11 App Cas. 107,
(listiuguisbed.

This was an action brought against the Hon. W. S. I'iehling, Premier,
and other members of the House of Assembly of Nova Scotia for votes
given by them in the House to take the respondent David J. Thomas,

1080

CONTEMPT OF PARLTAMENT.

ViKtDINri V.

Thomas.

Mayor of tho town of Truro, niiil a iiu'inlicr of the lloiisr, into umihIv
of the S4-rg<>ant-at-arins for refusing to oln-y an order of tlic House, anil
Hnbseqnently for eonnnittin<; liini to the eonnnon jail of the comity uf
Halifax for 4S lionrn.

It a]i|K'are(l tliat the respondent at tlio time of tlie tiansaetimis jn
question was Mayor (tf tlio town of Truro, in llie eonnty of f'oAV/M/,.;.,
Nova Scotia. Krederiek A. Lanrenet-, one of tlie appellants, wiis He.
eorder and Stipt-ndiary Alagiwtratc of the town of Truro and also a
niendter of the House of Assendiiy for the county of Cohhestir. A liilj
entitled "An Act to enahle the town of Truro to borrow certain nioiuy"
was |)reparcd hy the Town ("onncil of Truro early in the session of IS'.)],
and forwanlcd to Ijaiu'cnce to 1n> introtlnced liy him to the IIoum' oi'
Assembly. It was aUe<red that lM>fore introducing tiiis Dill to tiir
Assembly, Laurence inst-rted two clauses therein increasing liis own
wdary as said Stipendiary Magistrate. Tlie Dill was enacted as ol Viit.,
Chapter Hi). IJuring the M'ssion of the h'gishiture in IH'd'J, tlie Town
Council prepared and foiwaiiled to fleorge Clark<', a sci-ond mcinlicr of
the House of Assembly for the county of Colrhistcr, a jM-tition si};iiiil
by the rcsjiondent as Mayor, and by the other members of the said
Town CoiMM'il, praying lor the repeal by the legislature of the eiaiLst's
of the said Act which they alleged liati iM'cn inserted tiiercin without tluir
knowledge iuifore the said Kill was introduced to tile House, 'i'iicic was
attached as an exhibit to tiiis petition a copy of certain articles ot com-
plaint preferred against Laurence in certain proceedings then pending, for
the removal of the said liaurence from his olliee as Heeonh-r of Truro.

It wati further alleged that subse(|ucnt to its transmission, l<ut hcfciv
the jH-tition was presented to the House, the informality of attaching mi
exhibit thereto antl a doubt as to tiie exhibit lieing ])ro|K'r in substaiin',
was brought to the attention of tlu> resiiouih'nt, ami he thereupon ri-
quested Clarke to return the |H-lilion. Instead of complying with tlii>
rcque.st, Clarke gave the petition to Laurence, who laid it upon tiie tjililc
of the House of A.ssembly. Tiiereupon the House of Assembly in ilic
abs<'nce of the respondent passed a resolution ststting fortii that llir
respondent, having caused a libel reflecting u|)on a niendier of llic
House to be printed and didivered to a nu'inber of the House, for the
jmrpose of being read in or presented to tiie House, was guilty of a brendi of
the privileges of the House, and the res|)ondent was thereupon simniioiiiil
to appear at the 13a r of the House. Tlie I'c.spondent accordingly iiji-
jiearcd ut the Uar of the House on April IHtii, 1H!)2, and having a.sivcd
tliat tlie consideration of the case should lie postponed until he had tiii'
ausistance of co\in.sel, was directed to appear at (lu^ Ikr of the House uii
April 20th. The rcsponilent did appear ut the Bur of the House on
April 2()th, and tiiereupon demurred to tia- juri.sdictiou of the House,
and stated that the acts which formed the subject of tiie complaint agniiiM
Iiim were done by him in good faith in his capacity as Mayor of Tnnv,
and were not libellous, and tiiat on Ixing informed that there wii
doubt whether the petition, witii the dociimeMt attached thereto, con-
formed with the rules of the House or parliamentary practice, he iiad
caused it to lie witlidrawn. He then re(pie.sted to be cxcu.sed from
furtiier attendance.

Tlie n'spondent was then orally recpiested by the Speaker to with-
draw, and remain in attendance, and he withdrew.

The H0U.SI' then pas.sed the following resolution : —
" That this Hous«', wiiile fully cognizant of its own authority, uiiiicr
wliich David J. Thomas has appeared at the Bar of tho House, iwul
prepared on all [iroiwr occasions to exercise it, does not deem the offunte

AllllEST OP MKMBEU.

1081

U«c, iiUo liWdtIv

c Speaker to witli-

committud by Mr. ThoinnH of Hullu-ieiit gravity to call for niiy large I'ikldis" »,
cxi'ri'ist' of authority ; that, tluTrforc, Mr. Tiioiuns lie rciiriiiiaiidcil for Thomas.
tii(< l)rcai-li of |)rivilcg(^ wliicli he lias ('(Uniiiittcil, iiitd tliut siieli
n>))riiiiHiul l)(> given liy tlic rea<liiig of thi.s resolution to Mr. Tlioiiuis
ity the Speaker." '

U|H>n a fiirtlier resohition of the said House, the Speaker then ordered
tliiit the respondent nhould Ite again ealh'd in by tiie sergeant-at arniH
(Ilaliburton).

The sergeant-at-arnis accordingly <'oinininiieated such order to the
i-p.s|ionde!it, who Htill remained in atlentlanee, but lie refused to o)M-y such
onler, and h-ft the preeiiietH of the Ilou.se.

Upon the re.spondent's said refusal and leaving being eoinniunieated
to the S|)eaker by the sergeant-at -arms, the House resolved and onh'ietl
that the respondent should be taken into tlu; eiistoily of tlit! .sergeant -at-
iiriiis, and that the Speaker should issue his warrant accordingly, which
tiie SiM'iiker diil.

Oil the 22nd April the res[»ondent was arrested by the scrgeant-at-
iirins at Tniro, and was thence taken to tlie Har of the House, when
(vrtain (piestions were put and answers made by him. I'ltimateiy the
House resolved that the respon<leiit should withdraw in custody of
tlie .sei'geant-at-!irms, aiitl should lie detained in such custody, and
.tluiuld In' brouglit to the 13ar of the House iit !).30 p.m. on 2^{rd
April, to Ik- there dealt with as the House should direct, and the Speaker
urdered the sergcant-at-arms to act accordingly.

On tlu' 2.'{id April tlu^ res|)ondcnt was ngain brought l)y thesergeant-
ut-armstothel3aroftheHou.se. H(> was then asked whether he had
liny st^itenient to make before the Hon.sc proceeded to adjudicate upon
till' charge of contempt against him then pending before the Uou.si>, and
rt'plied in the negative.

He was then onlered to withdraw, and the Hous«t resolved "'('hat the
Hiiid David J. Thomas for his .said oifi'iice be coniiiiltted to the common
jiiil of the county of 7/a/i/ti.r, in the city of llalifuA\ for the space of
forty-eight hours.

" Provided, however, that in the event of this legislature In-iiig
|iiorogued prior to tlu^ exi»iration of .said term of forty-eight hours, the
Slid term of imprisonment shall on such prorogation forthwith de-
tiTiiiino.

" That Mr. Sju-aker do forthwith issue his warrant accordingly; and
in the meantime the said David J. Thomas remaiu in the custody of
the scrge4vnt-at-arms."

The respondent was then again brought to the Uar of the Hoii.se by
the sergeant-at-arms, and such resolution was read to him, and ho was
then ordered to withilraw in custody of the sergeant-at-arms. The
Sjieaker on the same day issued, pursuant to the said resolution, another
wnrrant under his hand and seal connnauding the .sergeant-at-arms to
convey the respondent to the .said prison, and commanding the keeiwr
thereof to receive him. This was done, and on 25th April the re-
spondent was discharged upon a writ of Habeas Corpus issued by the
Supreme Court of Nova Scotia.

The writ of summons in this action was i.ssued 27 April. On 30 April
1892 an Act (c. 42.) was passed to indemnify the Speaker and other officers
of the House of Assembly who assisted in preparing and executing the
warrants of April 20 and 23. The ease was tried at Truro 15 June and
three following days, 1802, before Towusheiid, J.,' and a jury. The

' From printed liccord, p. 66.

:i!^liqi;'

IMAGE EVALUATION
TEST TARGET (MT-S)

^\e

V.x

1.0 [Sl^ IIM

I.I

Z. lift '""^

lA^ 111112.0

1.8

1.25 1.4 1.6

■• 6"

►

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Photographic

Sdences
Corporation

23 WIST MAIN STREET

WEBSTER, N.Y. MS80

(716)872-4503

1082

PRIVILEGES OF PARLIAMENT.

FiEIjDIIIO v.

Thomas.

respondent claimed damages in respect of trespass, assault, and unlawful
imprisonment. The main defence of the appellants was that by virtue
of the R.S.N.S. (5 ser.) c. 3. s. 20 [see the Judgment below], the House
of Assembly held, enjoyed, and exercised the like privileges, iunnunitics
and powers as were enjoyed by the House of Commons of Cauadu, and h\
the House of Commons of the United Kingdom. Secondly, that b'v virtue
of sees. 29, 30, and 31 [see the Judgment below], the House of Assembly
was a Court of Record, and had the rights and privileges of a Conrt of
Record to punish insults to, or libels upon, members of the House (luriii"
the session of the legislature, and that the acts complained of were don"
by the House in the exercise of such rights. Thirdly, they relied on their
privileges as judges of the said Court of Record so constituted under the
statute ; and foui'thly they relied on the 2Gth section of the statute, wheivbv
a member of the said Hou.se is exempt from, inter alia, any civil actioii
or damages for any mutter or thing brought by him by petition, bill or
resolution, motion or otherwise, before such House.

The respondent pleaded that the several sections of the statute relied
on were ultra vires ; that the summons of 14 A]jril and warrants of 20
and 23 April were insufficient in law, and irregular and void, and issued
• 'b ''t jurisdiction; that the warrants did not disclo.se the oifenee for
- i>,ch the respondent was arrested; that the House acted without juris-
dictii 'cc'uise the respondent was prevented from making a full answer
and '^ii^L. having counsel to assist him; and that the House had no
jurit J .tio-: to adjudicate upon the said libel or to commit the respondent
to t) r coir.non jail. He further denied that the House was sitting or
acting as a Court of Record.

Townsiiend, J., ruled that the action nuist be dismissed as against llip
officers of the House under the late Act. As against the appellants he
directed the jury that the provisions of the statute, R. S. N. S. e. 3.,
were not within the competency of the legislature of Nova Scotia. Tlie
jury assessed the damages at 3200, and judgment was entered for the
respondent for that sum and costs.

The appellants appealed to the Supreme Court to set aside the
verdict and judgment and enter it for them ; and the res])ondent appealed
from the judgment dismissing the action against the officers of thi^ House
and moved for a new trial on the ground of misdirection of the jury by
the judge on the question of damages. The appeal to the S. C. N. S. was
argued on 7. 8, 9, 10, and II February 1893.

On 2 Dec. 1803 Graham, E. J., McDonald, C.J., concurring, held
that the sections in question of R. S. N. S. c. 3. were ultra vires of the
local legislature, and that the House of Assembly were not indenniified
against the action by sec. 26. Ritchie, J., was for allowing the appellants'
appeal on the ground that the statute was not ultra vires ; and further
that the House was sitting as a Court of Record trying v matter within
its jurisdiction, and that the members accordingly could not be sued for
acts done by them in their judicial capacity. Weatherbe, J., was of
opinion that the statute shoidd be construed as empowering the House
to deal with charges of crime only as an incident of protecting members
in the proceedings in question.'

The judges being equal in opinion, the verdict and judgment stood.
On August 7, 1894, the Judicial Committee, on the petition of the
appellants, recommended that sjjecial leave to prosecute the apical be
allowed.

The appeal was heard on 26 July 1895, Arthur Cohen, Q.C. ; Hon. J. W.
Lucgley, Att.-Gen. for Nova Scotia ; R. L. Borden, Q.C. (N. S. Bar) ;

■ lU'ported under the name of Thomas v. Haliburton, 26 N.S. 5.'>.

S. C. N. S.'Avn.s

PRIVILEGES OF PARLIAMENT.

108H

and J. C. Lewis Coward, were for the appellants ; the solicitors bein,
Hill, Son, and Rickards. Hon. Ed. Blake, Q.C., and T. T, Paine wer.
for the respondent, the solicitors being Paines, Blythe, and H> <table.

The following leading cases bear on the question : — Lowther \ . Earl of
Radnor [1806, 8 East 113] ; Biirdett v. Abbot [1811, 14 East, p. 138 :
There Lord Ellenborough said, in reference to the Ilou^e of Commons
of the United Kingdom, that independently of its power of removing
actual impediments to its proceedings, " It must also have the power of
protecting itself against insult and indignity whenever offered, by
punishing those who offer it"] ; 'I'he Sheriff of Middlesex, 11 Adol, and
El. 273 ; hi re Dansereau [ante, p. 36] ; Gosset v. Hoioard [1845-7,
10 Q. B. 359,411 : Verbal order of arrest] ; Barton v. Taylor [1886, 11
App. Cas. 197 : Earl of Selborne — Powers in olonial legislatures,
except such as are necessary to their existence, must be by express grant] ;
Doyle v. Falconer [1866, L.R. 1 P.C. 328 : A colony under 28 & 29 Vict,
c. 63. has i)ower to deiine its laws and privileges] ; Kicllcy v. Carson
[4 Moo. P.C. 63] ; Phillips v. Eyre [1870, L.R. 6. Q.B. 1] ; Wilson's
case [1845, 7 Q.B. 984: Law of Jersey]; Daichins v. Lord Rokeby
[1875, L.R. 7 Eng. & Ir. 744 : Lord Cairns — Protection of military
witnesses before mihtary court] ; Calder v. Halhet [1839, 3 Moo. P.C.
28]; Royal Aquarium v. I'arkinso7i [[1892], I Q.B. 431: What is a
Court?]; Jteij. v. London County Council [1891 [1892], 1 Q.B. 190];
Leeson v. General Council of Medical Education [1889, 43 Ch. I).
p. 379].

. ;DIl<a V.
IIOMAS.

III

:li

28 July, 1896— Judgment.

Present : Lord Halsbury, L.C.,
Lords Herschell, Watson, Mac-
naghten, Morris, Davey, and Sir
Richard Couch.

Lord Halsbury, L.C. : This is an
appeal from an order of the Supreme
Court of Nova Scotia dismissing the
application of the appellants for an
order that the verdict and judg-
ment entered for the present re-
spondent at the trial of the action
before Townshend, J., might beset
aside, and judgment should be
entered for the appellants. By
the verdict and judgment in ques-
tion the appellants were found to
have unlawfully assaulted and im-
prisoned the respondent. The Su-
preme Court were equally divided.
McDonald, C.J., and Graham,
E.J., were in favour of confirming
the judgment; whilst Ritchie, J.,
and Weatherbe, J., held that judg-
ment should be entered for the
appellants. The judgment of Town-
shend, J., therefore stood confirmed.

The respondent was summoned Judgment,
to attend at the Bar of the House ^f ^
of Assembly to answer a breach Halsbury, L.C.
of the privileges of the House
in having published a libel re-
flecting on a member or mem-
bers of the House (in connection
A.ith their conduct as members
of the House). He attended on
two occasions, and on the second
occasion was ordered to withdraw
and remain in attendance during
the debate which took place. On
being called in by the sergeant-at-
arms by order of the Speaker, he
refused to obey the order and left
the precincts of the House.

It is not denied that the re-
spondent intentionally disobeyed
the order of the House. He waa
thereupon arrested by order of the
House, and on being brought to the
Bar was adjudged to have been
guilty of a contempt of the House
committed in the face of the House,
and was committed to the common
jail of Halifax for 48 hours. Up-
on this ho hroTight an action for

1084

PRIVILEGES OF PARLIAMENT.

FlELDINQ V.

Thomas.
Judgment.
Lord
Halsbury, L.C.

nssiiult and iinprisoninent, aud it is
from the judgment in that action
tliiit the present appeal is brought.
The appellants are sought to be
made liable by i-eason of their hav-
ing voted as members of the Hous(!
of Assembly for the im[)risonment
of the respondent.

The acts complained of were
justified under sees. 20, 29, 30, 31
of c. 3. of the Revised St^itutes of
Nova Scotia, fifth series. The ap-
pellants also relied on the indem-
nity given to members of the House
of Assembly by sec. 2G of the same
stjitute.

These sections are as follows : —

"20. In all matters and wises
not specially provided for by this
chapter, or by any other statute of
this province, the Legislative Coun-
cil of this province, and the com-
mittees and members thereof re-
spectively, shall at any time hold,
enjoy, and exercise such and the
like privileges, immunities, and
powers as shall be for the time l)e-
ing held, enjoyed, and exercised by
the Senate of the Dominion of
Canada, and by the respective com-
mittees and members thereof, and
the House of Assembly, and the
committees and members thereof,
respectively, shall, at any time,
hold, enjoy, and exercise such
and the like privileges, imnmni-
ties, and powers as shall for
the time being be held, enjoyed,
and exercised by the House of
Commons of Canada, and by the
res[)ective committees and members
thereof; and such privileges, im-
munities, and powers, of both
Houses, shall be deemed to be, and
shall be, part of the general and
public law of Nova Scotia, and it
.shall not be necessary to plead the
same, but the same shall in all
courts of justice in this province,
and by and before all justices and
others, be taken notice of judici-
ally.

" 26. No member of either
House shall be liable to any civil
action or prosecution, arrest, im-
prisonment, or damages, by reason

of any matter or thing brought by
him by petition, bill, resolution,
motion, or otherwise, or said l)v
him before such House ; and the
bringing of any such action or
prosecution, the causing or effect-
ing any such arrest or iuiprisou-
ment, and the awarding of any such
damages, shall be deemed violations
of this Chapter.

" 29. The following acts, mat-
ter.s, and thmgs are prohiliitcd,
and shall be deemed infringements
of this Chapter: —

"I. Insults to or assaults or
libels upon members of oitlu'i-
House during the session of
the legislature."

The other provisions of the sec-
tion are inmiaterial to the present
purpose.

"30. Each House shall hv. a
court of record, and .sliidl have all
the rights and privileges of a coiul
of record for the i)urposc of siuu-
marily inquiring into and (al'tor
the lapse of twenty-four hours)
punishing the acts, matters, and
things herein declared to be viola-
tions or infringements of this
Chapter ; and for the pt,ri)os(?s of
this Chapter each House is hereby
declared to possess a", such powers
anil jurisdiction as may be neces-
sary for inquiring into, judging,
and pronouncing upon the conimis .
sion or doing of any such acts,
matters, or things, and awarding
and carrying into execution the
l)unishment thereof i)rovidedfor by
this Chapter, and amongst other
things each House shall have i)ower
to nmke such rules as may be
deemed necessary or proper for its
})rocedure as such court as afore-
saiil.

"31. Every person who shall
be guilty of an infringement or
violation of this Chapter shall be
liabhj therefor (in addition to any
other penalty or punishment to
which he may by law be subject)
to an imprisonment for such time
d\iring the session of the legislature
then being held, as may be deter-
mined by the House liefore whom

— L — ^_J(„

TRIVILEGES OF PARLIAMENT.

1085

such infringement or violotion
shall be inquired into. The nnturo
of the offence shall oo siiecinctly
und cloiirly stated and set forth on
tlie face of any warrant issued
for a commitment under this sec-
tion."

It should he UKMitioned that
by an Act (Revised Statutes of
Canada (1886) c. 11.) the Domi-
nion Parliament had already con-
ferred on themselves the privileges,
immunities, and powers of th(>
House of Commons of the United
Kingdom [31 Vict. (D.) 22].

if it was within tlie powers of
tlie Nova Scotia Legislature to
enact the provisions contained in
Sec. 20, and the privileges of the
Nova Scotia Legislature are the
same as those of the House of
Commons of the United Kingdom
ns they existed at the date of the
passing of the British North
America Act, 1867, there can be
no doubt that the House of Assem-
bly had complete power to adjudi-
cate that the respondent had been
guilty of a breach of privilege and
contempt, and to punish that
breach by imprisonment. The
contempt complained of was »
wilful disobedience to a law .1
order of the House to attend.

The authorities summed up in
Burdett v. Abbot, It East 1, and
followed in the case of the Sheriff
of Middlesex, 11 Adol. and Ellis
273, establish beyond all [)ossibility
of controversy the right of the
House of Commons of the United
Kingdom to protect itself against
insult and violence by its own pro-
cess without appealing to the ordi-
nary courts of law, and without
having its process interfered with
by those courts.

The respondent, however, ar-
gues that the Act of the provin-
cial legislatiire, which undoubtedly
creates the jurisdiction and further
indemnified members of it against
any proceedings for their conduct
or votes in the House by the; ordi-
nary courts of law, is ultra vires.

According to the decisions

which have been given by this F'eldisq v.
Board, there is now no doubt that J"'?"'**-
the provincial legislature could not j^^j.^
confer on it.self the privileges of Halsbury, L.C.
th(^ House of Connnons of the
United Kingdom, or the power to
punish the breach of those privi-
• leges l)y imprisonment or conx
mittal for contempt without ex-
press authority from the imperial
legislature. By sec. 1 of 38
& 35) Vict. c. 38., which was
substituted for sec. 18 of the
British North America Act, 1807,
it was enacted that the privileges,
immunities, and powers to be held,
enjoyed, and exerci3?d by the
Dominion House of Commons
should be such as should be from
time to time defined by the Act of
the Parliament of Canada, but so
that any Act of the Parliament of
Canada defining such privileges,
immunities, or powers should not
confer any privileges, immunities,
or powers (exceeding those at the
passing of such Act, held, enjoyed,
and exercised by the Commons
House of Parliament of the United
Kingdom and by the members
thereof. There is no similar
enactment in the British North
America Act, 18G7, relating to the
House of Assembly of Nova Scotia,
and it was argued therefore that it
was not the intention of the Im-
periid Parliament to confer such a
power on that legislature. But it
is to 1)0 observed that the House of
Commons of Canada was a legisla-
tive body, created for the first time
by the British North America Act,
and it may have been thought ex-
pedient to make express jjrovision
for the privileges, immunities, and
powers of the body so created,
which was not necessary in the
case of the existing legislature of
Nova Scotia. By sec. 88 [of the
B.N.A. Act, 1867] the constitu-
tion of the legislature of the
province of Nova Scotia was, sub-
ject to the provisions of the Act,
to continue as it existed at the
Union until altered by authority
of the Act. It was therefore aa

! I

1086 POWERS OF PROVINCIAL PARLIAMENTS.

FlBLDlNO V.

Thomas.
.Tudgment.
Lord
Halsbury, L.C.

existing

legi.'<latnre, subject
piovi.sions of the Act.

only
to the piovi.sions of the Act. By
sec. 5 of the Colonial Laws Validity
Act (28 & 2 J) Vict. c. CS.) it had a't
that time full power to make laws
respecting its constitution, powers,
and procedure. It is ditlicult to
see how this jiower was taken away
from it, and the power seems
sufficient for the [lurpose.

Their Lordships are, however,
of opinion that tlie British North
America Act itself confers the
power (if it did not already exit')
to pass Acts for defining the powei's
and privileges of the provincial
legislature. ' By see. 02 of that
Act the i)rovincial legislatures may
exclusively make laws in relation
to matters coming within the classes
of subjects enumerated, infer alia
the amendment from time to time
of the constitution of the province,
witli but one exception, namely, as
regards the office of Lieutenant-
Governor.

It surely cannot be contended
that the independence of the jno-
vincial legislatures from out.^ide
interference, its protection, and the
protection of its members from in-
sult while in the discharge of their
duties, are not matters which may
be cla.ssed as part of the constitu-
tion of the province, or that legis-
lation on such matters would not
be aptly and properly described as
part of tlie constitutional law of
the province.

It is further argued that the
order which the respondent dis-
obeyed was not a lawful order or
one which he was under any
obligation to obey. The argument
seems to be that the original cause
of complaint was a libel ; that
though the particular breach of
the Act complained of was the
disobedience to the orders of the
House, yet as tho.se orders were
issued in reference to a certain
petition presented to the House,
the contents of which were alleged
to be libellous, and during the in-
vestigation of the question who
was responsible for its presentation,

and as it must be assumed tliat a
libel is a matter beyond the imis.
diction of the House to be iiKJuind
into, inasmuch as libel is a eriininal
offence, and the criiuiiial law is
one of the matters reserved for
the exclusive jurisdiction of tlit;
Dominion Parliament, the wlioli;
matter was ultra cur.s, and liotli
the members who voted and tlie
officers who carried out the onleis
of the House are responsilile to an
ordiniiry action at law.

" Their Lordships are unal)ie
to acquiesce in any such conten-
tion. It is true that the criminal
law is one of the subjects reservni
by the British North America Act
for the Dominion Parliament, Imt
that does not prevent an inqniiv
into and the piinishinent of aii
interference with the powers con-
ferred upon the provincial le^is-
lutur" by insult or violence. The
Icgi' aire has none the less a
right, to prevent and punisli ob-
struction to the business of legisla-
tion because the interference or
obstruction is of a character which
involves the commission of a crim-
inal offence or brings the offender
within reach of the criminal law.
Neither in the Hou.se of Commons
of the United Kingdom nor the
Nova. Scotia Assembly could a
breach of the privileges of either
body be regarded as subjects
ordinarily included within that
department of State Goveriiincnt
which is known as the Criminal
Law.

The effort to drag such questions
before the ordinary Courts when
assaults or libels have been in
question in the British Houses of
Legislature have lieen invariably
unsuccessful, and it may be ob-
served that 1 Will, and Mary,
Sess. II., c. 2. s. 1, sub-sec, 9,
" That the freedom of speech, and
debates or proceedings in Parlia-
ment, ought not to be inipeacheil
or questioned in any court or place
out of Parliament," is declaratory
and not enacting

Their Lordships are therefore

1-, 1^ t*-.

FREEDOM OF SPEECH IN PARLIAMENT. 1087

e assumod tlmt a
beyond tin; jmis.
n.sf to 1)0 iiKiuircd
libel is ii erimiiial
'■ criiiiiiiiil law is
ters reserved for
irisdietioii of tin;
inent, the wlioii;
I rirci, iiiul l)otli
10 voted and the
I'd out the or(le:'s

•esponsihle to an
; liiw.

hips are nnahle

any sneh eonten-

that the criminal

subjects reserved

orth Anieriea Aot

I Parliament, luit

event an inqiiiiy

iiiishnient of aii

the powers con-

provineial lejjis-

or violence. The

none the less a

and punish oh-

isiness of legisla-

interferenee or
1 chanieter whicii
mission of a erim-
■ings the offender
the criminal law.
onse of Commons
Lingdom nor the
i.sembly could a
ivileges of either
led a.s subjects
led within that
itnte Government
ns the Criminal

ng such questions
ary Courts wlieu
s have been in
Jritish Houses of
Iwen invariably
it may be ob-
fill. and Mary,
s. 1, sub-sec. 9,
m of speech, and
Klings in Parlia-
to be impeached
my court or place
t," is declaratory

38 are tiierefore

of opinion that the 20tb section of
the provincial Act is not ultra
vires, and alfords a defence to the
action. It may be that .sees 30,
31 of the pro\in( ial Act, it' con-
strued literally and a|)art from their
context, would be ullrn viri's.
Their Lordships are disj)0sed to
think that the House of Assembly
could not constitute itsidf a Court
of Record for the trial of criminid
offences. But read in the light of
the other .sections of this Act, and
having regard to the subject matter
with which the legislature was
deal'- g, their Lordships think that
tho.se sections were merely intendcMl
to give to the House the powers of
a Court of Rt.'cord for the pur[)ose
of dealing with breaidies of pri\i-
lege and contempt by way of com-
mittal. If they mean more than
this, or if it be taken as a power to
try or punish criminal offences
otherwise than as inci(h'nt to the
protection of URMnbei's in their pro-
ceedings, sec. 30 could not be sup-
ported.

It is to be observed that in the
ease of Barton v. Taylor, 1 1 Ij.R.
App. Cases Privy Council 197,
referred lo by one of the learns. 1
judges below, is no authority ;u
favour of the contention here. No
statute was tiiere relied upon, but
the Legislative Assembly itself in
that case had in pursuance of
statutory powers adoi)ted certjiin
Standing Rules or Orders for the
orderly conduct of the business of
the Assembly. The trespasses
complained of were adjudged by
this Board not to be justitiahlo
under the Standing Orders. It
was then sought to justify the; acts
in question as being within a power
incident to or inherent in a Colonial
Legislative Assembly. This Board
refused to adopt that contention, but
their Lordshij s expressly added: —

" They think it proper to add
that they cannot agree with the
opinion which seems to have heen
expressed by the Court below, that
the powers conferred upon the
Legislative Assembly by the Con-

stitution Act do not enable the Fiej-dino v.
Assembly 'to adopt from the Thomas.
Imperial Parliament, or to pass by JaJgniont.
its own

Lord

. anllnnity, any Standing y.^i^i.^ l.c.
Order gning itsell tlie (lOwer to
puni.sh an oljstructing member, or
remove him from the Chamber, for
any longer period than the sitting
during which the obstruction
occurred.' This, of cour.se, could
not he done by the Assembly alone
without the a.ssent of the Gfover-
nor. But their Lordships are of
opinion that it might be done with
the Governor's assent ; and that
the exi)rcss powei's given by the
Constitution Act are not limited
l)y the pi'inciples of common law
ap])licable to those inherent [)Owers,
which uuist be implied (without
express grant) from mere necessity,
according to the maxim, Qiiondo
lev oUqiiid coiiccdit, conccdcre
videtnr ct illiid, sine quo res ipsa
esse noH poles'. Their Lordships'
alHrmanci^ of the Judgment ap-
pealed from is founded ou the view,
not that this coidd not have been
done, but that it was not done, and
that nothing api)ears ou the record
which can give the resolution
suspending the respondent a
larger operation than that whicdi
the Court below has ascribed to it "
But iudei)endently of these
considerations, the provisions of
sec. 2G of the Act of the provincial
legislature would in their Lord-
ships' opinion form a complete
answer to the action, even if the
act complained of had been in itself
actionable. Their Lordships are
here dealing with a civil action,
and they think it sullicieut to say
that the legislature could relieve
mendjers of the House from civil
liability for acts done and words
s[)oken in the House, whether
they could or coidd not do so
from liability to a criminal prosecu
tion.

No such question as that which
arose in B.arton v. Taylor arises
here. All these matters — the ex-
press enactment of the privileges
of the House of Commons of the

I 11^

' I' it:

^iiliiiii

1088 POWERS OF PROVINCIAL PARLIAMENTS.

FiBLDINO V.

Thomas.
Judgment.
Lord
Ilttlsbury, L.C.

United Kingdom — the express
power to deal with sneh acts hy
the Provincial Assembly — the ex-
press indemnity against any action
ut law for things done in the Provin-
cial Parliament — are all explicitly
given, and the oidy arguable (jnes-
tion is that which their Lonlships
have dealt with, namely, whether it
was within tiie power ol' the pro-

vincial legislatr : to make such
laws.

For these reasons their Lord-
ships will hnmbly recomniond to
Her Majesty that the judgnieiit in
this case should be reversed and
judgment entered for the apijel-
lants here (the defendants below)
with costs. Tli(^ respondent must
pay the cost of this appeal.

1 M w

to inuko such

rns their Lord-

roconimond to

tht! jiidfrnHMit in

be reversed uiul

for the nppel-

fondants below)

spondt'iit luiist

s appoid.

( 1089 )

INDEX.

Abolishing of Seignorial and Fief Tenures

Abolition of Liquor Traffic and .suli-scc. 9, sec. 92 ...

of Powers of Lieuteniint-Governors of Quel>ec and Ontario
Absorb, Dominion not to, Powers of Provinces , ,.
Academic Questions and ii Court of Law
Access to Tidiil Navigable Eiver
Accounts of Colonial Lighthouse Dues
Act pviiig Power to Appeal ...
Acting by and with Advice of Privy Council
Acts of Provinces declared ultra vires ... ... ... ...

Additional f'eiiators may be summoned

Additions to Act of 1867 made in London

Aden, Kigbt of Appeal from ...

Adjacent Territories added ...

Adjustment of Representation every Ten Years

Administration, Letters of, Etcoenition of ...

., of Indian Aflfairs ... ...

,, of Justice

„ ,, in the Provinces, and Validity of Commissions

„ of Law by the Courts

Admiralty Courts, Canada ...
Jurisdiction Act ...
,, Local Courts

,, Courts in British Possessions

Adrianople, Eight of Appeal from

Advances for Repair and Construction of Colonial Lighthouses, ...
Advice, Governor-General ought to defer to, of his Minister
„ of Ministers, Lieutenant-Governor must act by ...
Advocates fti'l Appeal to P. C.
Africa, Right of Appeal from
Age of Senator

Agreement with Canada as to Copyright
Agriculture «nJ Immigration
Alien »"<! l^ritisb Territory ...
Alienation of Fiefs and Soignories

Aliens •■•

,, holding Land in Manitoba

Allegiance Oath ...

Allotment of Land to Protestant Clergy, Old Law

Allowance to Judge

Alteration of Act by Province and Dom.

S 2340. ^ 2

PAOK

4, "60
.. 1066
.. 33
.. 48
.. 1073
.. 498
,. f'92
.. 144
9
.. 33

14
.. 186
.. 1009
3
.. 23
.. 903
.. 96
.. 308
33,34
.. 317
.. 395
.. 888
.. 395
.. 894
.. 1013
.. 992
,. 30
,. 29
. 420
.. 1009

13
,. 92
. 389
. 328
4.650
. 100
. 101
. 637
. 684
. 394
.. 240

ill !

intJH??ifJ;«'r<iit';!i|

BaffiBIHISWWBBHIMiEetfll'lliSliimJUll

1090

INDEX.

Alteration— fowi'.

„ of Constitution, Power ill Provinpo .,.

„ of Powers of Lioutonant-Oovcniors of tiuebee and Ontario

Alterations in B.N.A. Act, 1867

Amendments to u.N.A. Act, 1867

American Constitution, Art. 1. ss. 2, 7, 1 2, 13, 1")

„ Copyright Act

„ Duty in Licence Question ...

„ Divorce

„ License Cases

Ample Power of Provincial Logislftturo
AnalOgOnS example of Status of Provincial Legislatures
Ancient Jurisdiction of P.O.

Ancillary power ...
Anti-Confederation Laws...

Anticosti Company Case

Antigfua, Right of Appeal from

Antiquity of Lieutenant-Governor's Authority ...

Appeali Advocate struck off the Rolls ...

allowed for special reiLsons

and imprisonment for alleged insanity ...

as to precedence of Queen's Counsel

by order of Governor-General...

conflict between Codes

costs in any event

Court, Canada

Criminal, and Free Pardon

Decision of Court below

from Certiorari

from India — Bengal ...

from matter of fact

from Supremo Court of Canada

grievance limited to Appellant...

in a claim to challenge Jury ... ..:

in Arson case

in case of Forgery ...

in question of right to kill wild animals

Instalments, value of ...

in taking Oysters

Interim Order

Interlocutory and Final Judgments

irregularly allowed ...

leave given subject to competency lieing questioned

leave tr. Election Petition

leave to lodge Cross Appeal

leave to, what necessary to show to obtain

IMOK

100, 1080
33

... nr,

... 715
... 09
... 87.')
... 210
417,417
... 101
... 142
1
... 1005
... 142

. . 00

... 307

... 1009

... 414

... 431

. 418

7, 11,35

... 405

... 428

... 394

417, 418

... 425

... 426

409, 1010

42.5, 428

... 404

... 408

... 418

... 420

... 419

... 421

... 419

... 436

... 421

422, 423

... 413

45, 308 et seq.

... 452

19, 433, 442

may be brought from any Admiralty Court in British Possession to P.C. 891

misstatements or eoncenlment of fact ... ... ... • ... 430

not allowing Barrister to Practise ... ... ... ... 420

of Barrister from fine ... ... ... ... ... 414

on conditions ... ... 418,426,427,428

on questions of Mercantile Law ... ... ... ... 433

on refusal to allow Barrister to Practise ... ... ... ... 420

question being whether a negotialle instnin'.ent or not ... .. 425

special arguments at the hearing jf the application ... ... 426

speci..i leave ... ... ... ... ...Z07, ilO et seq.

specialleave, Privilege question ... ... ... ... 436

"T^rif

INDEX.

11)91

Appeal— co«if.

„ Sppcial Reference cnses ...

„ stay of Execution

,, struck out of the list if notice of appeal not complied with

„ time for Petitioning in Court IhjIow

„ time for prosecutinp; ...

„ to Governor-General in Council

„ to Parliament of Great IJrilain

moned to Council
,, to P.C., Annual lU'iit, Foe, &c.
,1 ,, in Criminal Suit

,1 ,1 in Divorce Appeals

,, ,, Printed Cases. t%e note

„ „ >S«(! AlphalKJtical List

„ „ Special reference through a Secretary of State

„ „ Wide Diseretion in Committee ..

„ under Insolvency Law
„ value of Subject Matter, Ontario
,, where Advocate DisUirred
,, whoro Bar suspended from Practising
„ where Jury's verdict of wilful murder was set aside
,, where special leave granted, sample of cases
,, where Witnesses discredited ...
„ word "Final"
„ wrong punishment inflicted
AppealaWe amount, Interest added ...
„ value, adding costs

„ „ amount claimed ...

„ „ and construction of Act

„ ,, and Taxation

„ ,, cases summarized ...

„ „ demanded, sum

„ „ French .Jurisprudence

„ ,, other actions involved

„ „ Sec 1009 ct seq.

„ ,, sum recovered

Application of Colonial Lighthouse dues

Appointment of Administrator when Lieutenant-Governor absent or ill
„ of Canadian oificors

„ of Governor-General

„ of Judges

,, of Legislative Council of Quebec...

Appropriation Bin find Governor-General
,, in Provinces

Arbitration « debts

Argument in Governor-General v. Four Provinces, Acts of 1883-4

„ in Liquor Prohibition Case

Armed Forces of Canada vested in the Queen
Arms, Carriage of, in time of public danger

fMff

... 401
... 436
... 482
... 1009
... 410

... 333,377,384

Old Appeal as to right to be sum-

57-2

307,400
... 409
416,417
... 1041
... 1009
... 411
... 412
... 80
... 396
... 420
... 420
... 418
... 440
... 424
... 82
... 414
424, 433
... 424
... 424
... 424
... 122
... 420
405,411,421
... 434
... 424

prohibiting sale of

Arrest of M.P. ...

Arson, appeal from question of
Aspect of each case considered
Assemblies, Constitution of Nova Scotia and New Brunswick

„ Provincial, and Appropriation, Money, Tax, and other Bills

,, Quebec, Constitution of Legislative

Assembly, membership and holder of ofiBce of emolument

3z 2

424, 432
... 992
... 35
... 641
3
... 389
... 36
... 26
... 41
... 616
... 145
... 1044
... 10
146, 1068
133, 151, 152, 1068

1079

420

161,174

... 41

I .1

! i:

t:i:

' ^i if I

■\ «< 'i I

1092

INDEX.

Assembly— ''o'*^. »aoi

,, of Novft Scotia nnil Contempt ... ... ... ... 107H

,. of QiioU'C nnd Coiitcniiit ... ... ... ... ... 30

„ Numnioniiip! of ... ... ... ... ... .i. 38

Assent to BIIIh in ProvineoH ... ... ... ... ... ... 41

Assessment of Piiri.sh for Hallway Compiiiy ... ... ... 120,22.5

Assets, prior claim of Crown to be paid out of ... ... ... 288,292

,. QiuOiic and Ontario ... ... ... ... ... ... fi32

Assignability of American Copyrifrht ... ... ... ... 877

Assignment and Hankniptey diiTurcniiatcd ... ... ... ... 305

Assignments Act of Ontario, validity of ... ... ... 2i)8, 302

„ for ln'miflt of Croditorn, cffui;t of ... ... ... ... 79

Associations, I.'OChI, Act dealing with . ... ... ... 44,329

,. Powers of, and I'rovineiid riHht.K ... ... ... ... 40

„ Provincial, Hill crcatinf? ... ... ... ... ... 42

„ with Dominion powers, hut only currying on business in a Province

46, 358

Assurance I'acts in Queen's insurance Company c. Parsons ... 270, 3.J8

Assurer, Tax on ... ... ... ... ... 127

Asylums... ... .•• ... ... ... ••• '24

Athabasca, Inereaso to ... ... ... ... ... ... 654

Attorneys and Appeal to P.C. ... ... ... ... ... 420

KeliefAct ... ... .. ... ... 719,821

Auctioneer License ... ... ... ... ... 52,120

Australia, Jii^ht of Appeal from ... ... ... ... ... 1009

Authority conferred on License Commi.ssioner.s ... ... ... ... 136

,, External and Legishitivi! ... .. ... ... ... 49

,, for Local Adniinistrution ... . . ... ... 1, 142

,, of Governor-General ... ... ... ... ... 8

„ of Governor, Lis Commission ... ... ... ... 10

„ of Government of Canada and Provincial Legislatures ... 1, 294 ,1079

,, of Lieutenant-Governor ... ... ... ... 33,34

„ Paramount ... ... ... ... ... ... 74

„ Plenary, Ije.stowed on Provincial Legislatui-es .. . ... ... 142

Author's Copyright Ca.se in Canada ... ... ... ... ... 91

Autonomy of each Province ... ... ... ... ... 1,31,294

Azoff, Sea of, .Appeal and Foreign Jurisdiction Act ... ... .. 1014

Bahamas, night of Appeal from
Ballot Paper, Forgery of
Bank, Insolvent, and Dominion

,, Notes Taxed by a Municipality ...
,, Trustees appointed by Dominion Act to wind up
Banks and Insurance Companies, Tax on
„ Capital Taxed by Province
,, Savings

Banking ■■■

„ as against Civil Eights
„ Power to Legislate for, in Dominion ...
„ Provincial Tax on Capital ...

Bankruptcy and Act to avoid that result

„ and Lisolvency...

,, Law by both Dominion and Legislature

... 1009
... 107

75, 332
... 75

75, 332

68, 113
68,75, 113
... 76
... 74
... 3U1
...66,74

7o, 113

... 76

75, 78, 330

78, 1043

> ''" 'II'

... 107«
... 30
... 38
... 41
120, 22.")
288, 202
... M2
... 877
... .lOfl
2.)8, ,102
... 70
44, 320
... 46
... 42
'riivince

46, 3S8

270, 3.08

... 127

... 124

... 654

... 420

710,821

52, 126

... 1000

... 130

1, 1 12

1,294 ,1070

33, 34

... 74

... 142

... 91

1,31,294

.. 1014

... 1009
... 107

75, 332
... 75

76, 332
68, 113

68,75, 113

... 76

... 74

... 3U1

...65,74

76, 113

... 76

75, 78, 330

. 78, 1043

;ndex. 1093

Bankruptcy— <'''»'^ paob

,, IjIiw of Englnnd exiiminofl ... ... ... ... 70

,, of .Sc'iiiitor ... ... ... ... ... .,. 15

,, Old Liiw cxamitK^d ... ... ... ... ... 304

., Provincinl I.AV on snme Hulijui't ... ... ... ... 303

Baptist .School ... ... ... ... ... ... 348

Barbados, KiRli' "f'^ppoal from ... ... ... ... ... idOO

Baronets of Nova .''cotm ... ... ... ... .. ... 5

Barristers and Aiiiiofti to p.c. ... ... ... ... 420

,, mid Knpli.sli mid French LiiiimiHgi! ... .. ... ... 393

., or Advociitci, Htrikiiig off tho Roll in Colonics ... ... 414

,, Refusal of Court to nllow, to Practise ... ... ... 420

Bars of Ontario, Nova Scotiii, and Now Brunswick ,. ... ... 393

Basis of the C'jdcs ... ... ... ... ... ... ... 289

Basntoland ... ... . . . . ... ... loio

Batonnier, the, and Provinciiil liar. Precedence... ... ... ... 35

Beacons and Lighthouses ... ... ... ... ... ... 70

Bechuanaland, British, Appeal from... ... ... ... ... 1010

,, Protoctorato, Aiipcftl from ... ... ... ... 1010

Behring Sea .\ ward Act ... ... ... ... ... ... 910

„ Tribunal, argument before ... ... ... ... 200

Beneficial interest of the Crown in all Lands within Provincial B<'i idarics . . 98

Bengal, Right of Appeal from ... ... ... ... 1010

Benin Rivers, A ppcal from ... ... ... ... ... ... lol4

Berbice .. ... ... ... ... lOio

Bermuda, Riglit of Appeal trom ... ... ... ... ... 1010

Lome Convention Copyright Act ... ... ... ... ... 868

Bible, the, and .Schools ... ... ... ... ... :tfll, 364

Bill, Copy of, to lio sent to England ... ... ... ... ... 26

Reserved for Assent, Limit of Time for Di.sallowaiice ... ... 26

Altering Limits of Electoral Divisions, Refjuisitcs ... ... ... 38

Disallowance by Lieutenant-Governor ... ... ... ... 41

Lieutenant-Governor reserving Consent to ... ... ... ... 42

Money, to originate in H. of C. ... ... ... ... ... 25

not a.s.sented to , . . ... ... ... ... ... ... 42

of Appropriation, Money Votes, in tlio Provinces ... ... ... 41

of Exclinngo and Promissory Notes ... ... ... ... 76

of Provinces and Dissent by Oovornor-Ocneral ... ... ... 42

Old Right of Governor Refusing A.ssent to ... ... ... ... 579

Royal Assent to ... ... ... ... ... ... 26

Bombay, Right of Appeal from ... ... ... ... ... 1010

,, .Suspension of Bar, Appeal ... ... ... ... ... 420

Bonny, Appeal from ... ... ... ... ... ... 1014

Book, Meaning of, in Copyright Act ... ... ... ... ... 847

Books, English Reprint of, in Canada ... ... ...- ... ... 91

,, how to obtair Copyright in America ... ... ... ... 876

„ Importing i'.ito U.K. ... ... ... ... ... ... 848

Boom in River, and Local Undertaking ■,.. ... ... ... 66

Borneo, Appeal from ... ... ... ... ... .. 1010

Borrowing Monej ... ... ... ... ... ... C9, 123

Boundaries betwcsn Canada ami New Brunswick, GUI Act ... 707, 718

„ of Briiish Columbia, Old Act ... ... ... ... 733

„ of Colonies, Alteration of... ... ... ... ... 1002

Boyd, C, on Provinciil Liquor Question ... ... ... ... 168

Brass, Appeal from ... ... ... ... ... ... ... 1014

Breeding Fish, Frotei;tiou of... ... ... ..• ... ... 73

Brewers' Licenses ... ... ..• ••• ••• «n 52, 63, 127

BH^,^f.«<MlTli{f

1094

INDEX,

Brewers* Licer »-s — cont. I'AOE

„ „ in U.S. ... ... ... ... ... ... 160

,, „ in Quebec ... ... .. ... -.. ... 66

„ Helling as retailerb ... ... ... ... ... 168,208.

Taxed ... ... .. ... ... ... ... 159

British and Americun Constitutions ... ... ... ... .. 168

„ Bechuanaland, Appeal from ... ... ... ... ...1010

„ Central Africa, Appeal from ... ... ... ... ... 1010

„ Columbia Adjudication ... ... ... ... ... 323

,, ,, Appeal from ... . . ... .. ... 1010

„ „ Barristers and Solicitors ... ... ... ... 721

„ „ Boundaries, Old Act ... ... ... ... 733

,, „ Government Acts ... ... ... ... 722-786

,, ,, History of... ... ... ... ... ... 5

,, „ Judicature... ... ... ... ... ... 403

„ Guiana, Eight of Appeal from ... ... •■. ■•• 1010

„ Honduras, Appeal from ... ... ... ... ... 1011

„ North America Acts... ... ... ... ... ... 553

„ ,, „ Act, amendments to ... . ... ... 7-45

„ ,, Borneo, Appeal from ... ... ... ... ... 1010

„ Parliament, Governor-General and Lieutenant-Governor, relative

position discussed ,., ... ... ... ... 28

„ Possession, Provisional Warrant to arrest Fugitive Offender ... 830

„ Ship, owner of ... ... ... ... .. ... 927

,, Subject and Counterclaim in Consular Court .. ... ... 1031

„ Subjects, power over ... ... ... ... ... 417

„ Territory and alien ... ... ... ... ... ... 328

Brougham, Lord, opinion on Appeals... ... ... ... ... 408

Brunei, Appeal from ... ... ... ... ... ... 1011

BrUSSa, Appeal from ... ... ... ... ... ... 1013

Building Societies ... ... .. ... ... ... 234,243

„ „ Acts, Provincial and Dominion Company ... ... 47

Burden, Indians" title to Canadian Land a mere... ... ... ... 99

,, on Dominion ... ... ... ... ... ... 209

„ en Salary of Dominion Officer imposed by Provinces ... ... 70

„ wlien clearly local, on Dominion to show not ... ... 85,330

Burgas, Right of Appeal from ... ... ... ... ... 1013

Burmah, Right of Appeal from ... ... ... ... ... 1011

Burton, J. A., on Copyright ... ... ... ... ... ... 92

„ ,, on Delegation of Powers ... ... ... ... 327

„ „ on sub-see. 8, sec. 92 ... ... ... ... ... 210

Business, Provinces can legislate to prevent fraud in ... ... ... 106

Butter, and Dominion Legislation ... ... ... .. 323

By-Law imposing License Tax on sale of meat ... ... ... ... 161

„ of Municipality, force of ... ... ... ... .>, 1075

„ Repeal of ... ... ... ... ... ... ... 126

„ requiring Power to Enforce .. ... ... ... ... 142

,, Validity of, in question of Special Leave tu Appeal ... ... 4C3

Cairns, Lord, on Applications for Special Leave to Appeal
„ on Prerogative of Crown, followed

Calabar, Old, Appeal from ...

Canada, Appeal from

,, and English Criminal Law

„ and Liiibility for Provincial Debts

431, 441
... 83
... 1014
... 1011
4
... 626

INDEX.

Canada— <'o« I".

„ Company Old Acts ... ...

„ Federal Government of, meaning of

„ Siock, Transfer of, and Stamp Duty

„ Temperance Act, scheme of ...

II I, and Ontario Act in the same Province

» „ and Provincial Act

II M 1878, not a Fiscal Law...

» „ 1886, scheme of

Canadian Act sanctioned by Imperial Act

„ Census, when to be taken

„ Copyright Act

)> ,, Agreement with the Govornmeut

I. ,, English Authors' case

>> „ Imperial Acts

,, Extradition Act ...

,, H. C. Members, Number of ...

„ Judges, List of

,, Liquor Acts

„ Naturalization

,, Naturalization Act .. .

,, Pacific Riiilway

,, Pacific Eailway and Mines and Minerals

,, Parliament and Exclusive Powers over Timperanco

,, Kebellion, Lower ...

,, Union, Act of

Cape of Good Hope, Right of Appeal from
Carnarvon, Earl, on School Question of New lirunswick ...

,, on Governor-General acting on advice of Privy

Carrying of Arms, Prohibition of
Cases, Printing, denote
Catholics and Protestants, old privileges
Cattle and Contagious Disease, Eight to legislate on
Ceding Territory for Settlement, meaning of
Census and Statistics

„ of Canada, when to bo taken ...
Central Authority, none created

„ Government of Canada, meaning of
„ Power and Municipal Institutions
Certificates of Competency of Master of Ship, &c., grunted in the
Certified Copy of Record to bo sent to P.C.

Certiorari Appeal ...

„ or Prohibition Appeals

„ Writ, Chinese License

Cession of Livnd for Settlement, &c., meaning of...
Ceylon, Right of Appeal from
Character of Legislation, true motive of

„ in which Lieutenant-Governor reserves Kill

Charities. ■•

Charter of the Canadas

„ of Fort William (Bengal)
Charters and Appeals. See lOOd et seq.

,, of Bengal, Bombay, and Madras
Cheese and Supply of Milk, Laws of Dominicn and I'rovincis
Chief Executor, Officer, or Administrator and Lieutenant-Governor

„ Officer of Canada
Children, Custody of, Special Leave where concerned

1095

Council

PAGE

663, 713
1
... 812
... 1044
161, 1042
103, 104, 129
... 32
1044, 1064
... 93
7
... 867
... 92
... 91
846 et seq.
... 642
... 16
... 396
... 220
... 770
... 764
... 546
123,519.520
156, 1042
4
1
... 1011
.. 336
8,9
.. 133
.. 1041
.. 658
.. 133
.. 99
.. 69
7
31,293
..1,293
.. 150
.. 936
... 1008
122, 426
... 405
122, 426
... 99
... 1011
... 134
... 42
... 124
397, 566
409, 1010

... 1010
104, 106
... 30
7
... 436

Colonies

J ij ;

lirl

I '

in"

1096

INDKX.

PAGB

China, Appeal from ... ... ... ... ... ... ... lOU

Chinese and Indians Electoral r^rauchise ... ... ... ... 100

„, , Immigration Restriction ... ,. ... ... ... 63

„ Taxation ... ... ... ... ... ... ... 122

Christopher, St., Right of Appeal from ... ... ... ... 1013

Civil Action, Exemption from, of Members of Parliament ... ... ... 1088

., and Criminal Codes may 1)6 altered ... ... ... ... 4

„ Matters in the Courts ... ... ... ... ... ... 308

„ . , Code of Procedure, Arts. 605, 607, 61 1, 1989, 1994, 2008, ".032, 2086 284, 397

' „ „ Art. 998... ... ... ... ... ... ... 47

,, „ of Procedure, object of ... ... ... ... ... 286

„ Courts, old, establishment of ... .. ... ... ... 581

„ List of H.M. in Canada... ... .. ... ... 96,97

,, Rights and Property ... ... ... ... ... ... 257

„ „ in the Provinces... ... ... ... ... ... 257

,, „ moaning of, examined ... ... ... ... 62,133,262

,, Servants' Salary in Canada ... ... ... ... ... 70

Claim of Crown y. Creditor ... ... ... ... ... 284,294

Clashing of Powers discussed ... ... ... ... ... 199

,, of Provincial Parliament and General Parliament ... ... 61

Clergfy Lands, Final Act ... ... ... ... ... ... C94

Sale of ... .. ... . ... ... 653

„ of Quelle and accustomed Dues ... ... -.. ... 559

„ Reserves old .Vet and Proceeds ... ... ... ... ... 710

,, „ History of ... ... ... ... ... ... 4

Coasting Trade, in British Possession and Merchant Shipping Act ... ... 1 00 1

Old Act ... ... ... ... ... ... 762

Code of Civil Procedure, Arts. 1124, 1178 ... ... ... 397, 434

„ of Procedure, Art. 1178 ... ... ... ... 397,421

„ ofQuebec ... ... ... ... ... .. ... 244

Codes, Conflict between ... ... ... .. ... ... 291

„ ,, and Special Leave to Appeal . . ... ... ... 428

Co-ezisting Powers ... ... .. ... ... 60,120

Coinage ■■• ... ... ... ... ... ••• ••• 74

Coleridge, sir J. T., on right of P.C. in all cases Criirinal and Civil to

allow Appeal ... ... ... ... ... ... ... 418

Collection of Consolidated Revenue Fund, Expenses of Collection ... ... 485

Colonial Acts and interference by Imperial Parliament ... ... ... 61

„ ,, ratified by Queen, force of ... ... ... ... 410

„ Advocates and Appeal to P.C... ... ... ... ... 420

,, Appeals and Prerogative ... ... ... ... 411,1009

,, „ Special Court contemplated ... ... ... ... 405

,, Building and Investment Association v. Att.-Oen. ofQuebec 234, 268

„ Court Sentences ... ... ... ... ... ... 820

„ Doctors practising in England ... ... ... ... 884

,, Governor's Commission ... ... ... ... ... 10

„ „ Pensions... ... ... ... ... 801,887

„ Laws ... ... ... ... ... , . 409

„ „ Validity of ... ... .. ... ... ... 738

,, Legislature and exclusive and ancient Powers of H. C. England ... 12

„ „ Definition of ... ... ... ... ... 741

„ ,, and Rights of English Authors ... ... ... 94

„ Lighthouses ... ... ... ... ... ... 713

„ Mints, old Act ... .. ... ... ... ... 743

„ Possession and Prerogative of Queen ... ... ... ... 31

Colonies, Admission of Now, into Union ... ... ... ... 646

. INDEX.

1097

PAOR
... 1011
... 100

... 63
... 122
... 1013
... 1088
4
... 308
!, 2086 284, 397

... 286

... 581

96,97

257

... 62, 133, 262

284,294
... 199
;.. 51
... G94
... 653
... 559

710

4
... 1001
... 762
397,434
397,421
... 244
... 291
... 428
60, 120

md Civil to

... 418
... 485
... 51
... 410
... 420
411, 1009
... 405
234, 258
... 820
... 884
... 10
801, 887
. . 409
... 738
... 12
... 741
... 94
... 713
... 743
... 31
... 646

)ec

igland

Colonist, Appeal by, to British Parliament
Coming within sec. 91, what to prove
Commander in Chief, the Queen
Commerce and Navigation ...

Regulation of, in U.S.

Regulation of, "Warehouse receipts ...

Retail Sales

and Trade considered

,, and Incorporation of Companies
,, Regulation
with Indian Tribes
Commercial Corporations and Provincial Taxation
,, Law in Canada ...

„ System of U.S., what it has been employed for

Commission Governor's Authority
Commissioner, Appointment of

Commissioners of the P.C. and instructions to Governors
Commissions of inquiry appointed by Quebec Assembly ...

„ of Oyer and Terminer, and the Prerogative ...

Committal for Contempt, Power of Parliament
Committee, Judicial, and Election Petitions, hefiring
Committees appointed by Quebec Legislature ...
Common Defence of the Empire, Contribution from Canada
„ Interest of each Province

„ School Acts of New Brunswick

„ „ ». Epitome of

„ Socage
Commons of Canada, how summoned ...

„ Canada, Act to put an end to certain Proceedings

Community of Goods, Husband and Wife
Companies, incorporation of, and Trade and Commerce ...
„ „ by Provinces

„ with Provincial Objects ...

Company, Canadian Act giving Power to summarily dispose of Right to Shi
„ Incorporated by Dominion, Acting in one Province only ...

,, Wound up in Canada, Incorporated by Imperial Statute ...

Comparison of sees. 17 and 68
Competency and Validity of Dominion Act

„ of Parliament to Legislate on Trial of Election Petitions

,, of Provinces, exclusive Powerf!

Composition of Legislative Council of Quebec ...
ComptaWeS, meaning of
Concealment of Facts on Appeal
Conception Bay, Right to ...
Concurrent Judgments on Facts and Appeal ...
„ Legislation as to Criminal Laws

„ Powers in Dominion and Provinces

,, „ in Provinces as to Taxation,..

Conditional Fi^ohibition
Conditions, Appeal allowed on
Confederation and Opinion of Statesmen
„ Anti, Ontario...

,., „ EiFect on connection between Crown and Provinces...

, _ ,,,,( , Laws before ...

,.,„ , of Canada and U.S. compared ... ... ... 60,

,,,1, ., to be viewed as a Treaty ... , .... .„

165,

426, 427, 429, 434,

FAOB
■ ■• 29
... 43
... 10
... 691
68, 160
76, 295
... 166
... 151

2
... 51
... 62
... 6i
... 181
... 62
... 10
... 391
... 1006
... 36
... 33
... 12
40, 311
... 36
590, 591

1
... 334
... 342
... 661
17,28
... 91
... 257

2
45, 234

2
irus 91
... 45
... 87
... U
... '.9
18,20
44, 1042
... 36
... 289
... 430
... 74
438,439
106, 156
166, 389
... 63
... 156
436, 461
... 168
... 56
... 31
.., 73
119, 173
... 168

1098

INDEX.

PAQB

Conflict lietwcen Provincial and Dominion interests ,,, ... ... 42

„ of Laws of Quebec and other Provinces ... ... 31, 293

„ of Legislation ... ... ... ... ... 48,1042

„ of Laws or Codes ... ... ... ... ... ... 428

„ of Laws ... ... ... ... 46,1042

„ to prevent, Act took a certain form ... ... ... ... 64

Congress and states compared with Dominion and Provinces ... 119,173

,, Power of U.S. ... ... ... ... ... ... 69

„ ,, as against Powers of States ... ... ... 61

Connection between Crown and Provinces ... ... ... ... 31

Conquest of Quebec ... ... ... ... ... 4

Consents requisite to Provincial Railway crossing a Dominion Kailway ... 233

Conservation of Fish, inland and Sea, by Dominion Parliament ... ... 73

Consolidated Fund of Canada ... ... ... ... 483

Consolidation of Quebec and Ontario... ... ... ... ... 4

Constantinople, -Appeal from. Sec Turkey ... ... ... ... 1013

Constituted Authority for Local Administration ... ... ... 1,27

Constitution of Canada compared with Constitution of the U.K. ... ... 27

„ „ similar to U.K. ... ... ... 1,294

„ of a Province, power to alter ... ... ... 100,1086

„ of Offence, keeping open and selling ... ... ... 125

„ of Legislative Assembly... ... ... ... ... 38

„ of Parliament of Canada ... ... ... ... 11

„ of States of U.S. and Provinces of Canada ... ... ... 61

„ Power to Amend that of Provinces ... ... ... Ill

„ Provincial, meaning of, examined ... ... ... ... 27

„ Suspended ... ... ... ... ... ... 4

Constitutional Charter of the Canadas ... ... ... ... 566

„ Functions and Dominion Powers ... ... ... 1

„ Law ... ... ... ... ... ... 1042

„ ,, of U.S. and Canada just the reverse ... 61,118

„ Questions and Appeals to P.C. ... ... .. ... 406

. „ Question lapsing ... ... ... ... ... 308

„ Rightof Lieutenant-Governor to dismiss Minister ... ... 29

Construction of an Imperial Act, Special Leave granted ... ... ... 452

,, of ss. 91, 92, Principle of, pointed out in Parsons' Case ... 131

Consular Court and Treaty Rights ... ... ... ... ..1031

„ Courts, Appeal from ... ... ... ... ... 1011

Contempt, Committing for. Power of Local Parliament ... ... ... 1079

of Court, Appeal to P.C. ... ... ... ... 414,420

„ of Parliament ... ... ... ... ... 36,1079

„ „ Quebec ... ... ... ... ... 36

Continuance of Legislatures of Nova Scotia and New Brunswick ... ... 31

Contracts, all Legislation as to, not in the Dominion ... ... ...76,77

Contrast between English H.C. and Quebec Assembly ... ... ... 36

Controversies between Dominion and Provinces, Appeal to P.C. ... 400, 401

Controverted Election Petitions and Dominion ... ... 46,308

Convention as to Naturalization with U.S. ... ... .,. ... 802

Con'^eyance of offender on High Seas to British Possession ... ... 994

Conviction in Hodge's Case ... .. ... ... ... ... 136

Co-ordinate Authority of Dominion and Provinces ... ... ... 31

Copies of Printed Cases to be lodged. iS«« note ... ... ... 1041

„ International ... ... ... ... ... ... 868

„ Burton, J., on ... ... ... ... ... ... 92

'•■ „ English, extended to every part of H.M. PosseMions ... .,. 94

INDE^.

1099

FAQE
... 42
31, 293
48, 1042
... 428
46, 1042
... 64
119,173
... 69
... 61
... 31
4
... 233
... 73
... 483
4
... 1013
... 1,27
... 27
1,294
100, 1086
... 125
... 38
... 11
... 61
... Ill
... 27
4
... 566
1
... 1042
61,118
... 405
... 308
... 29
... 452
... 131
.. 1031
... 1011
... 1079
414, 420
36, 1079
... 36
... 31
...76,77
... 36
400, 401
45, 308
... 802
... 994
... 136
... 31
... 1041
... 91

,, in America

„ in Canada, Fees ...

,, I, Interim

Old Acts
Coreai Appeal from...
Corporation, Ontario and Quelle Taxes
„ and Direct Taxation

„ Commercial, and Provincial Taxation

Corrupt Practices and hearing Election Petitions
Costs, Appealable Value, Costs not to l)e added ...
I, ,, ,, Interest on Damages may bo

,, Deposit, Appeal becoming abortive from not lodging
,, Irregular Appeal
„ Security for, ordered by P. C.

,, when mis-statement, concealment, or inaccuracy in facts
Council, Old, for Quebec
„ to aid ond advise
Councillor of Quebec, Vacancy in place of

„ ,, Qualifications of

Counsel, Queen's, Appointment of

,, selection of Judges from cacli Bar
,, to argue Special Keference Cases
Court below and P.O. Appeal...

„ Created without the incidence of Appeal to the Queen

,, Established in Canada by Imperial Authority, Dominion

conferring Jurisdiction on ...
„ Martial in the Colonies
„ of Appeal, Canada

„ of Record, New, what necessary to Croute...
„ „ Parliament as

„ Supreme, Established ..
„ to Decide Constitutional Questions
Courts, Civil and Criminal, Old

„ Dominion Parliament and Uniformity of Laws ...
„ Generally ...
„ in Canada ...
„ New Jurisdiction Committed to
,, of Admiralty in the Colonics ...
„ Organization of
,, Prize, Establishment of
Creating Municipalities

Credit, Power of Province to Borrow Money on
Creditor, Crown as...

„ and Provincial Bankruptcy Law
„ Provincial Government as ...
„ Bight of ...
Crime and Power of Dominion
Crimes Commit*«d at Sea

„ List of, in Extradition Act
Criminal Case, Postponement of Execution of Convict Appellant ,
„ ,, and Judicial Committee

,, Jurisdiction in the Province, ,.
„ Law

„ „ and insult to House of Assembly

„ ' ' „ and Liquor Laws ... ... ...

„ • ,, and Ontario Licenses ... ... ...

FAGB

875

867

860

.. 846, 872, 873

1011

... 122

... 116

54, 113

40,311

... 424

424

462

423

122

f.. ... 430

662

... 393
... 401

426

311

Parliament

826

394

1079

3, 394
... 406

637

... 388
395 et scq

396

... 20
... 888
... 308
... 926
... 142

123

284, 294

302

31, 294
... 78

106

778

782

... 416

308

M 102

1079, 1087

1«1

104

^ i

'I i|

liiiiiliiiiiiiiiii

1100

.INDEX.

Criminal lAV'-eont,

n , „ and Power of Dominion

„ ., and Sale of Gunpowder

„ ,, and Trial of Prisoners in Canada

(I ,, by Dominion and Provinces

,,,.. ., in Canada and England

„ ., in «ec. 91 means General Public Criminal Law

I, ,, of England in Canada...

I, ,, of England to be in force, old Act

„ „ Provincial, Canadian Temperance Act not within

sec. 15. s. 92

„ Suit, Appeal to P.C., Lord Brougham

,, Trial in Canada, and Dom, Act

Croftera Loan to British Columbia
Cross Appeal, allowed to lie presentefl ...
Crown and Dominion Eight to Fish in Harbours
„ and Liability for seizing Railway
,, Cases in Canada
,, Preference of, in Bankruptcy ...
„ and Preference Payment

,, and Provinces, Confederation did not sever Connection
„ can Recall any Governor who fails in his duty
„ Lands in New Brunswick
Crown's Prerogative Power to hear Election Petition

„ Prerogative and Commissions of Oyer and Terminer

„ Prerogative Examined

Currency...

Custom Duty and Direct Taxation
Customs and Dominion Excise

„ and Vice-Admiralty Courts ...
Cyprus, Appeal from ... ...

PAGg

,102

104

...

547

33,

1087

...

106

...

all

661

134

...

409

...

906

...

4.52

...

496

...

395

288

,292

...

. .

...

308

...

309

409

...

116

...

!>3S

...

1011

Damage, Quantum of. Judicial Committee may fix ... ... 440,497

Dangerous Establishments, power in Province to Regulate by Law ... 104

,, to Public, example ... ... ... ... ... 133

Dardanelles, Appeal from, through Consular Court ... ... ... 1014

Debt, Action of, against Governor ... ... ... ... ... 10

of New Brunswick ... ... ... ... ... ... 533

of Nova Scotia ... ... ... ... ... ... 533

of Ontario and Quebec ... ... ... ... ... ... 632

Public, and Property .. ... ... ... ... ... 5I

of Canada ... ... ... ... ... ... .. 483

of Provinces and Assets ... ... ... .., 526

„ Interest on ... ... ... ,. .. 485

Debtor and Assignment for Benefit of Creditor ... ... ., -9,302

Decision of the House of Lords on a Colonial Question ... ,,, ... 346

Declaration of Union ... ... ... ... ... ... 3

„ of Qualification of Senator ... ... ... ... 13

Defence of the Country, Dominion's Right to take Land ... ... ... 533

Definition, Mill's, Examined... ... ... ... ... ... 116

„. of Privilege*, Powers, and Immunities of Senato, and Members

of Pailiament of Canada and Provincial ParliamentB 1 1, 1079

Delegates, High Court of ... ... ... ,„ ... ,..1005

„, , FrovincisI Legislatures not ... ... ,„ ... 143

-"?=iTP

INDEX.

1101

PAGE

62, 102
... 104
... 547
33, 1087

.. 12

... 108

... 661

within sub-

... 134

... 409

... 45

... 900

... 4,52

... 73

... 496

... 395

288, 292

31, 292

... 31

. . 29

... 72

... 308

... 33
309, 409

... 74

... 116

... 535

... 69

... 1011

440, 497

... 104

... 133

... 1014

... 10

... 533

... 532

... 51

., 483

„ 526

.. 485
■,:9, 302

... 341)

iia ••• 13

... 533

... 116

and Members

nentB 11, 1079

... 1005

■ftft ••• "•

Law

noil
103, 131, 142, 1042

357

332

341

374

... 338
... 31,283,292
9

Dolegjation. of Canadian Parliament's Powers ...
DenOQlinational Hights and Education

„ Schools

., „ in Canada ...

„ „ in Manitoba

„ „ in Now Brunswick

Depositor, Crown as, Payment of
Deputy Grovernor, Appointment of

„ „ General, constituting Courts ...

„ ,, „ and Governor-General, Exorcise of Power always

can be by the latter
„ Speaker of Parliament of Canada
„ Lieutenant-Governor
Derivatioa of Authority of Provincial Legislatures

„ of Governor's Authority ...

Derogation from Rights require express words...
Desertion and Divorce
Destroying Municipalities ...
Destruction of Fish, undue ...
Detention of Ship under Behring Sea Award ...
Diplomas, Medical, Colonial...
Direct and Indirect Taxation...
„ Tax, meaning of

„ „ Person first Charged with it to pay it
,, Taxation

,, ,, Dominion and Provinces

„ „ and Corporations

„ ,, in both Dominion and Provinces

Directions for Printing Appeal Cases. /Sec note
Disallowance of Acts, Ritchie, C.J., on the Power of

of Bills ...

„ of Provincial Acts

,, „ „ should be exercised with caution

Disbarring Advocate, Appeal
Discovery, Patents of Invention and ...
Discretion of Governor-General in Assent to Bills
Discrimination in impo.sit ion of Taxes
Discussion as to Powers of Lieutenant-Governor and Governor-General

,, as to Qualification or Vacancy to bo heard by Senate ...

Dismissal of Lieutenant-Governor by Governor-General ...
„ of Ministry by Lieutenant-Governor...

Disqualification of Senator

Dissentient Schools

Distinction between Dominion and Provincial Powers
,, „ Limitation and Prohibition

„ ,, Property in, and Regulation of

Distressed Seamen, Relief of
Distribution of Powers between Provinces and Dominion

,, of Legislative Powers ...

District not prepared to absolutely Prohibit
Division of Canada...
Divorce Appeals, Leave to Appeal

„ from Husband for Accusation of a Capital Crime

„ in Canada...

„ in Manitoba

„ in New Brunswick ... ... ... ... ...

10
... 1003
... 35

1
... 10
... 74
... 250
... 142
... 73
... 925
... 884
... 67
... 114
127, 129
113, 119
... 48
... 116
... 53
... 1041
... 63
... 41
8, 9, 26
... 51
... 420
... 88
... 26
... 122

28,29

... 28

... 16

... 333

... 72

... 149

... 72

... 942

1,292

.. 43

149, 1042

3
... 416
... 260
... 101
... 250
... 261

1^ I

J I

' -i
r 1

: , !

i !

(

H >

¥■

I I

i ■ r

iilm

ill 1

1103

INDEX.

BiVOrCB—cont. TAOE

in North-Wt'st Territories .., ... ... ... ,,, 250

in Nova Scotia ... ... ... ... ... ... 2a0

in Prince Edward Islnnd ... ... ... ... ... 252

in Quebec ... ... ... ... ... ... ... 250

Special Leave ... ... ... ... ... ... 431

Docks, Loan to Construct, Act ... ... ... ... ... 743

Doctors, English, Practising in Canada ... ... ... ... 420

Documents, usu of Old Namos of Upper and Lower Canada in ... ... 644

Doherty, Jm on Prohil)itinpt Liquor Laws ... ... ... ... 204

Doleance Petitions... ... ... ... ... ... ... 408

Domicile for Divorce, &c. ... .. ... ... ... 253,257,447

Dominica, Eight of Appeal from ... ... ... ... ... 1011

Dominion Act, additions made in London ... ... ... ... 186

„ ,, and Provincial Act to give effect to it ... ... ... 65

„ „ „ „ Adaptation ... ... ... ... 124

„ „ authorising Company to Purchase Island .. . ... ... 307

„ „ conferring Jurisdiction on Imperial Vice-Admiralty Court. ... 894

„ „ Disallowance of ... ... ... ... ... 9

„ „ for one Province ... ... .. ... ... 242

„ „ for two Provinces, Alteration of... ... ... 273,328

„ „ making Decisions in Q.B. Quebec final ... ... ... 81

„ „ Object of ... ... ... ... ... 31,292

„ „ of Union ... ... ... ... ... ... 1

„ „ Preliminary ... ... ... ... ... ... 2

„ ,, Provisions as to Queen... ... ... ... ... 2

„ „ Validity of ... ... ... ... ... ... 300

„ and Crown Lands... ... ... ... ... ... 97

„ „ General Power ... ... ... ... ... 2

„ „ Incorporation of Companies ... ... ... ... 2

„ „ Insolvent Bank ... ... ... ... ... 332

„ „ Lieutenant-Governor ... ... ... ... ... 42

„ „ Legislation as to Perjury ... ... ... ... 107

„ „ ,, on Marriage Licenses ... ... ... 256

„ „ Naturalization ... ... ... ... ... 770

„ ,, Penalties and Foifciiures Legislation ... ... ... 107

„ „ Postiil Service, Railways, National Defences ... ... 486

„■ „ Provinces and Raising Money ... ... ... ... 48

„ „ ,, Distribution of all Powers between ... ... 43

„ „ Provincial Acts ... ... . . ... ... 258

„ „ „ Bankruptcy Law ... ... ... ... 302

„ „ „ Double Legislation ... ... ., ... 50

„ „ ,, Laws as to Frauds in supplying Milk ... ... 106

„ ,, ,, Powers under sees. 13-92 ... ... ... 46

„ „ „ Power of making Criminal Laws compared ... 33

„ „ „ Rights 494

„ „ Remedial Education Acts ... ... ... ... 334

„ „ Sale of Gunpowder ... ... ... ... ... 104

„ „ Tax in Provinces ... ... ... ... ... 155

„■ Bank Notes, Taxed by a Municipality ... ... ... 75

„ Bankruptcy Act overriding Provincial ... ... ... 78

,, Companies and Provincial Laws ... ... ... ... 235

„ can deal generally with the whole matter ... ... ... 147

„ can declare anything a Crime ... ... ... ... lOo

„ Company, Validity of, and Questions to be raised ... ... 40

„ enacting that Decrees of Courts should be final ... ... 308

„ Excluded from Provincial Powers ... ... ... „, 152

rAOE
... 250
... 250

... 252
... 250
... 131
... 743
... 420
... 644
... 204
... 408
253, 257, 447
... 1011
... 186
... 65
... 124
... 307
... 894
9
... 242
273, 328
... 81
31,292
1

ty Court.

ipared

2
2
300
97
2
2
332
42
107
256
770
107
486
48
43
258
302
60
106
46
, 33
494
. 334
. 104
. lao
. 7o
. 78
. 235
. 147
. 105
.. 46
.. 308
.. 152

INDEX.

Dominion — "ont.

„ Ezclugive Authority of

„ extending Jurisdiction of a Court

„ first Occupying the Ground

„ first Provinces forming

„ Government and Provincial Acts of Prohibition

„ House of Commons, Members of

„ Hudson Bay Territory added

„ in 1896 ...

„ Insolvency Law ...

„ Laws overriding Provincial Laws

„ Law for one Province

„ Law must bo General Law ...

„ Legislation and Fish

„ „ and all Contracts re Bills of Exehniige

„ „ and Property ...

„ „ and Provincial Tax on Capital of Banks

„ „ as compared with Provincial

„ „ overlapping

„ „ Value of, in Interpreting Act of 1867

„ „ and Fines

„ Licensing Acts, 1883-4

„ License for Carrj . ig Gun ...

„ Parliament and Mining Companies in two Provinces

„ „ and Power to Alter its Constitution

„ ,, and use of French and English Language
Legislation and Property

1103

PAOB

... 44
... 312
... 147

3
58, 1042
... 16

... 78

... 1042

166, 1042

73
... 76
... 73
... 75
131, 132
... 210

2
... 107
145, 158
... 146
... Ill
... Ill
.. 542
... 99

passing Laws overriding and inconsistent with Provincial Laws 148, 1042

Phrase " Property of" or " belong to " explained ... ... 97

Power for Constitutional Functions ... ... ... ... 1

„ to Enact General Nuisance Law ... ... ... 104

„ to Prohibit Sale of Intoxicating Liquors ... .. 161

not to Absorb Provincial Powers ... ... ... ... 48

Object of ... ... ... ... ... ... 150

Objects, how accomplished ... ... ... ... 1,292

Officers and Taxation .. ... ... ... ... 70

Officials and Provincial Tax ... ... ... ... 123

passing Law and Local Association ... ... ... ... 45

Parliament Act putting an end to all Proceedings in certain Cases 91

„ Address re Imperial Legislation ... ... ... 336

„ and Insolvent Hank ... ... ... ... 75

„ and Queen's Prerogative ... ... ... ... 82

„ and Uniformity of Laws ... ... ... ... 388

„ and AVarehouse Receipts ... .. ... 75,296

„ and Western Provinces Fishing ... ... ... 74

„ has full Control over the Election of Members 18, 19
„ Imposing now Duties on Existing Provincial Courts ... 20

„ Paramount ... ... ... ... 74,301

„ Powers of . . ... ... ... U, 822

„ no Exclusive Legislation over Temperance ... ... 166

Penal Laws ... ... ... ... ... ... 322

and Provinces and Co-ordinate Authority ... ... ... 31

Railways and Provincial Railways ... ... ... ... 233

Repeal of Provincial Act ... ... ... ... 1043,1070

Supreme Court Act Reviewed ... ... ... ... 19

to decide how far a Trade maybe Suppressed ... ... ... 193

Trenching on Matters assigned to Provinces ... ... 44,1043

III

1104

INDEX.

Dominion— con^ paob

„ Winding-up Act Examined.,. ... ... ... ... 321

DonationB l)<*fore Birth of Children ... ... ... ... ... 257

Double I^giilutiun .. . ... ... ... ... ... ... 60

„ Licenses ... ... ... ... ... ... ... 221

„ „ Provi.sion for ... ... ... ... ... 146

„ Offences ... ... ... ... .. ... ... 161

Doubt Entertained of Soundness of Doeision Appealed from, and Special

Leave ... ... ... ... ••. ... ... 22

r)r.lgS, f'lilfi of. considered ... ... ... ... . ... 133

Dues for Colonial Lighthouses ... ... .. ... ... 992

„ Lumber, New Brunswick ... ... ... ... ... 535

Duflforin, Ijord, on Parliaments ... ... ... ... ... 30

Duration of House of Commons ... ... ... ... ... 23

„ of Legislative Assembly ... ... ... ... ... 39

Duties ar"! Kevenues ... ... ... ... ... 483,484

„ Levied in Newfoundland, Old Act ... ... ... ... 654

,, New, Imposed on E.\isting Courts by Dominion Parliament ... ... 20

Duty of Rxceutivo and Bills ... ... ... ... ... ... 42

„ of Governor Genernl and Assent to Bills ... ... ... ... 26

,, „ ,, as Head of a Constitutional State ... ... 30

„ „ „ in all Cases to Protect Imperial Policy ... ... 42

„ of Judges ... ... ... ... ... ... ... 390

„ of Judicial Committee on Advising Special Leave ... ... ... 443

„ „ ,, to Grant Leave if a Doubt of Soundness of the

Decision Appealed from ... ... ... ... ... 22

„ of Lower Court on Leave to Appeal being Granted ... ... ... 1008

,, oflVtinistry ... ... ... ... ... ... ... 42

,, of Minister, when duties are Executive merely ... ... ... 89

Early Cases in P.C. ... ... ... ... ... ... 1006

East Florida, Appeal from ... ... ... ... ... ... 95

„ Indies, Right of Appeal from. &e Bengal ... ... ... 1010

Edicts, French, of 1743, Examined ... ... ... ... ... 246

Education 332

and Sectarian majority ... ... .. ... 363,364

„ Manitoba School cases ... ... ... ... 371-376

in Prince Edward Island ... ... ... ... ... 338

„ Laws prior to Union ... ... ... . ., 365

„ Questions and Appeal ... ... ... ... ... 406

EflTect of Canadian Temperance Act ... ... ... ... ... 130

Ejrypt, Appeal from ... ... ... . . ... ... 1011

Election and Corrupt Practices, and Hearing in P.C. ... ... ... 40

,, Courts ... ... ... ... ... ... 312 et seq.

,, First, of Ontario, Quebec, and Nova Scotia Assemblies ... 22,41

of Holders of Office... ... ... ... ... ... 38

„ of Speaker of Legislative Assembly, and ofll.C. Canada on same lines 40

„ Petitions and Leave to Appeal ... ... 45,314,414,449

„ „ and Prerogative of the Crown ... 40,314,408,449
Elective Legislature constituted
Electoral District of New Brunswick ...
„ Divisions, ,.

„ Law to apply, until altered by Dominion, to Election of M.P. or M.H.C.

„ Limits, Bill altering, requisites

SleemoBynary £^stabiishmentB

16
18

548
18
39

124

•Special

I'AdB

321

257
60
221
146
161

... 133

... 902

... 535

... 30

... 23

... 39

483, 484

... 654

... 20

... 42

... 26

... 30

... 42

... 390

... 443

of the

1008

... 1006
... 95
... 1010
... 246
... 332
363, 364
371-376
... 338
.. 365
... 405
... 130
... 1011
... 40
S\2 et seq.
22,41
... 38
me lines 40
il4, 414, 449
!14, 408, 449
16
18
548
18
39
124

:M.H.C,

INDEX.

1106

499

Ellice Inland

Emolnmeilt, Office of, and Mcrabomhip of AssomWy

Empire, Ifnity of, List

Encroachment i^y Dominion

Enforcing Licence whtre no Penalty ...
„ Temperance Act, 2nd Part...

English and Foreign LangimgoH

„ bankruptcy Acts Examined ...

,, Companies in Canada, Winding up

,, Copyright in Canada

,, Criminal Law obtains in Canadiv ... ... ...

„ Liquidation in Canada
Enlistment Act, Foreign
EnOB, Appeal from ...
Enumerated Powers, Provinces
Error, Court of (Ontario)

Escheats...

„ and sec. 102

„ and Provincial Rights

Establishment of Now Province

„ of Supremo Court (C.)

Evidence, Dominion Act

„ same in two Actions, Appeal

Evil Existing in Society, can bo inquired into by Quebec Li'gislaturo
,, growing into National Danger ...

Examination of Powers by Strong, C.J.

„ of Witnesses on Oath by Assembly

Exemption of M.P.'8 from Civil Actions for Votes

Excepted Classes Clause

Exception from Legislation of House of Commons

Exchequer Court, Canada ...

Excise and Customs are Indirect Taxes
„ and Provincial Taxes ...
„ Laws ...

,, „ and Provincial Legislation

Exclusion of Parliament of Canada ...

Exclusive and Ancient Powers of H.C. of England not in Provincial Parliaments \2
„ Authority of Parliament, meaning of ... ... ... 155

„ Legislative Authority of Parliament Examined ... ... 44

„ Legislative Authority of Dominion ... ... ... ... 66

,, Powers of Provincial Legislatures ... ... ... 44,109

" Exclusively," Word Examined ... ... ... 67,199,1043

Execution Pending Appeal ... ... ... .. ... ... 438

Executive Authority of Quebec, Ontario, Nova Scotia, and New Brunswick 27-31
„ „ possessed by Lieutenant-Governors... ... ... 9

„ Council... ... ... ... ... ... ... 34

,, „ and holding office of Emolument ... ... ...38,39

„ „ of Quebec ... ... ... ... ... 30

„ „ of Ontario ... ... ... ... ... 30

,, Duty, gives no Authority to Prohibit ... ... ... 89

„ Government, Seats of ... ... ... ... ... 35

„ Officers, Duties and Powers of ... ... ... ... 643

„ Power ... ... .. ... ... ... ... 7

„ Power of each Province ... ... ... ... ... 27

Exhibits in Court, Tax on ... ... ... ... ... ... 32

Existing Courts and New Duties .. ... ... ... ... 20

8 3340. 4 A

I'ACIK

.. 1014

.. 38

.. 1043

.. 127

.. 130

.. 642

79, 306

,. 87

,. 91

.. 88

.. 780

.. 1014

.. 109

.. 400

.. 08

.. 484

613

304

457

1044

166

1088

108

396

115

636

f^f

1 1

Ilii

'I A i

1106

INDEX.

Existing r^iw

Expatriation of the Fronoh in Arcndift

,, of Soniitor

Expenses "f rnllwtiiig ronHoliduttd Itovemie I'lind
ExplOSiV ''^'i'«t'"ifi'H Sftlo cijiiKidiTod ..
Export ty on Ijinib(!r, 1111(1 Tniity with U.S. ...
Exportation from Provinpcs

Express WordH nuiuin^d to tiik<; iiwiiy Qtiui'ii's I'rcroRntivo
"Extend 'K'yond tho liinitH of tlui Provinrp," Examined ...
Extent of ExclnHivu Autliority of Parliiimont ...
External .'\utliority putting Law in force
Extinction of a Trade, Effect of
Extra Tax imposed for Delay

Extradition of rriminaiH ...

I'AflK

... .■»;:"

... 1.)
.. iNr,

... KK!
i)3'), SOS

.. r,:h')

.. 82

... 'J'.;;
II

I!)
... I!M
.. 1'2(;
... 774

Facts, and appealing to P.C —

„ in Hodge's Case

„ in RuBBell's Case

„ mis-statements on appeal
" Fair Trial," Earl Selborne on
Falkland Islands, Right of Appeal from
False Statement, Punishment for
Federal Authority and Municipal Institutions ...

„ Government described

„ „ meaning of

„ „ and Provincial Judicature ...

„ Parliament and Divorce, Jurisdiction over

„ Power and Liquor Traffic

,, Purposes and Navigation

„ Unity, Act of
Fees for Canadian Copyright...

„ in Colonial Admiralty Courts
Felonies, Appeal in...
Felony of Senator ...

Ferries •••

Fief and Seignory Lands may be charged to Common Socage tenure

Field not occupied, phrase

Fiji, Eight of Appeal from

FillinST Vaciuicy in place of Councillor of Quebec

Final decision as to Patentji in Canada...

„ is an apt word to exclude certain appeals ...

,, Judgments, Appeal
Finality of P.C. Judgments ...
Finance Act, Exception of Property

„ Provincial Assembly Money Bills
Fine and Imprisonment, where given to Provincial Parliament

,, and Dominion Legislation

„ for breach of Liquor Laws
Fining a Barrister, Appeal ...

„ Judges
Fire Insurance Companies
First PTl'iraent of Dominion

„ Provinces forming Dominion

„ step to be taken in deciding subject-matter falls within sub-sections

425, 438
... llifi
... 129
... 4.30
... 47
... 1011
... 107
... l.iO
... 31

... 323

36. 2fi0

... 107

fiO

1
... 806
... 899
.. 409
... 15
... 74
624, O.'iO

, . inc.

... 1011
... 3-
... 89
... 82
... 421

12, 468
... 926
... 41
... l')5
107, 324
... 102
... 414
... 394

66, 259
3
•\

of 92 262

INOFX

1107

PAflR

... '):','!

... .1

... 15

.. m

... \:n
635, nm

„ liU

... 82

... 227

... It

. . tn

... mi

... 12B

... 774

42fi, 438

... i;io

... 129
... 4.30
... 47
... 1011
... 107
... l.iO
... .31

... 323

30, 250

... 197

fid

1
... 8G6
... 899
.. 409
15
... 74
024, OoO
. 100
... 1011

... ;t7

... 89
... 82
... 421

12, 408
... 920
... 41
... l')5
107, 324
... 102
... 414
... 394

65, 259
3
•\

0D8 of 92 262

Fiscal I-iiw, Ciinadiiui Tumponincc Act net

Fish, (^'l"i(i 'i'imo !.<>^iNlati<)M ill |iiiiiiitiii>ii ... ,.,

,, in I'lililic lliii'lioiir'*, I'rotcctiuii of
Fisher, •'•. "" .'^I'lmolM (iuchtion of Nnw Hriinswick

„ (III tliu riiioii

Fisheries and Provincial I^igiHlation ...

,, Inland ... ... ... ...

„ I'otieo KoguIationN...

,, TroHpiiHS ...

Fishing by Indiann, Regulation of
Treaty with U.S. ...

Florida, Kant and Went, in Oanaila Old rrovincos
Force "f IJilla roHorvi'd for Uoyal AHBont
Foreign CompanicH in Canada, winding up

,, Country and Printing English Books ...

„ „ and Treaties

,, Corporations and Provincial Laws

„ Enlistment Act

„ Jurisdiction Act

Actions, Limitation of

Amends, Tender of ...

China and .Japan, coast of

Costs

Death .Sentences

Definitions ... ... ...

Evidence may be tendered by accused
Examination uf Witnesses
Extent of Jurisdiction, ascertaining
Foreign Law and British Court
Indian Princes and subjects thereof
Jurisdiction over Ships in Eastern Seas .
Jurisdiction in a Foreign Country
Limitation of Actions...
Parliament and 0. Jn C.
Power to send Person for Trial
Protection of Persons acting under Act ,
Punishment of I'ersons convicted
Repealed Acts
Ilepugnant 0. in C. ...

Revoking 0. in C.
Sea Limit, China and Japan
Ships in Eastern Seas
Trial of Offences committed outside H.M.
Trial of Person accused
Validity of Acts done under 0. in C.
Warrant to Arrest
„ „ Witnesses, Examining of

„ Piracy of American Copyright
„ Protection to Copyrighted Book
„ Snbject or Citizen as Senator ...
Foreshore and Dominion Legislation ...

„ Property in

Forgery and Provincial Legislation ...

„ Case, Appeal in
Forms, Extradition
Fort St. George

•1

PAfll

.. 132

... 7."

. . 7!i

... 3.n

.. 72

... 72

( 1

... 73

... 74

100,910

... 805

... 00

... 26

... 87

... 91

.. 541

... 244

... 78'J

... 1031

... 1030

... 1037

... 1034

... 1037

... 1033

... 1032

.. 1034

... 1037

... 1031

... 1036

... 1035

1033

1030

... 1034

... 1038

... 1035

... 1037

Dominions 1034

... 1033

... 1035

... 1033

... 878

... 869

... 15

... 306

... 498

... 107

... 419

... 784

... 1010

rJ I

4a 2

1108

INDEX.

PAOE

Port William ... ... ... ... ... ... ... 1010

Fortifications nnd Provincial Propertv ... ... ... ... 533

„ ic Colonies ... ... ... ... ... ... 824

„ Loan for ... ... ... ... ... ... 787

Franchise of Indians iind Chinese ... ... ... ... ... 100

Franklin, Now Provincial District ... ... ... ... ... 554

Fraud, Acts in Canada to prevent ... .. ... ... 304

Frederickton Roman Catholic School ... ... ,,. ... 348

Free Schools in Nova Scotia ... ... ... ... ... ... 3Gt;

„ The New Brunswick ... ... ... ... ... 348

Freedom of Produce Travelling from Province to Province ... ... 635

Freight, Responsibility for ... ... ... ... ... ... 977

French and English Languages used in Dom. H. C. ... ... ...4, 542

„ Edicts ... ... ... ... ... ... ... 661

„ Law Examined ... ... ... ... ... ... 280

„ „ in Privy Council ... ... ... ... ... 425

„ „ in Quebec and Preference Payment* to the Crown ...31, 32, 288, 4J2

„ „ prevails in Quebec ... ... ... ... ... 4

„ Revolution, Claims by British Subjects and P.O. ... ... ... 412

„ Tax on Trades ... ... ... ... ... ... 119

Friendly Islands, Appeal from ... ... ... ... ... 1014

Fugitive Criminals in British Possessions ... ... ... ... 778

„ Ofifenders... ... ... ... ... ... ... 826

Funds of Ontario Coporation taxed in Quelxjc ... ... ... ... 122

Fur Trade Act ... ... ... ... ... ... ... 6i)6

Gallipoli, Appeal from ... ... ... ... ... ... 1014

Gambia, Right of Appeal from ... ... ... ... ... 1011

„ Territories, Appeal from ... ... ... ... ... 1011

General Authority of Parliament ... ... ... ... ... 62

,, Court of Appeal, Canada ... ... ... ... ... 394

,, Law by Dominion must not be limited to any particular Province ... 168

„ Power giv n to Dominion ... ... ... ... ... 2

„ ,, overriding the Provincml ... ... ... ... 48

„ Rirpose of Act by Dominion ... ... ... ... ... 157

Scheme of B.N.A. Act ... ... ... ... 1043,1070

Generality of Terms not to be restricted ... ... ... ... .13

Generally 1" matters of a Local or Private Nature discussed ... 44, 86

„ matters merely Local, &c. ... ... ... ... ... 328

GhiO, Appeal from ... ... ... ... ... ... ... 1014

Gibraltar, Right of Appeal from ... ... ... ... ... ton

Gilberts Island, Appeal from ... ... ... ... ... 1014

Gold Coast, Right of Appeal from ... ... ... ... ... loil

Ctold Minos in Provinces ... ... ... ... ... 519,520,621

Government, Executive, Seats of ... ... ... ... ... 35

„ Federal, meaning ... ... ... ... ... 1

„ Lower Canada, Temporary Act of 1837 . ... 664,069

„ Office and Membership of Assembly ... ... ... .id

„ Quebec, first Act ... ... ... ... ... 556

„ Kepresentative, Earl Grey on ... ... ... .,, 28

„ Seat of ... ... ... ... ... ... II

„ to be carried OD in name of the Queen ... ... ... 7

PAOK
... 1010

... 533

... 824

787

... 100

... OOi

... 304
... 348
... 3Gg
... 348
... o3o

977

...4,542
... 661
... 289
... 425

..31,32, 288, iJ2

... 412

... 119

... 1014

778

... 826
... 122
... 590

E^ovince

1014

1011

394

168

... 48

... 157

1043, 1070

... 43

44, 85

... 328

... 1014

... 1011

... 1014

... 1011

619, 520, 521

... 35

664, 659

^'^

... 6!}G

... 28

... 11

INDEX.

1109

I'AOK

Governor and Council, acting judicially, cannot be sued ... ... ... 10

.. » „ Appeal to ... ... ... ... 333,377,384

„ and Sovereign Power ... ... ... ... ... 10

„ Colonial, and English Sovereign Compared ... ... ... 28

„ in Council, meaning of ... ... ... ... ... 9

„ Lieutenant, Appointment of... ... ... ... ... 27

,1 may be sued in this Country ... ... ... ... 10

„ of British Colony and British Parliament ... ... ... 28

„ of Colony suing therein ... ... ... ... ... 10

„ old Eight of refusing consent to Bills ... ... ... 579

„ General bound to t).ke Advice of Ministers in Office ... ... 8, 9

I, ,1 and A.ssent to Bills ... ... ... ... ... 26

I, „ and Appointment of Deputy ... ... ... ... 9

II ,1 and Deputy of Lieutenant-Governor ... ... ... 36

I) II and Lieutenant-Governor's Authority, Antiquity of thi! latter 9

II ,1 and Loyal Assistance by his Counsels to his Ministers ... 30

i> I, and New Officers ... ... ... ... ... 641

II ,1 and Ofnce of Lieutenant-Governor ... ... ... 28

i> II and Provincial Acts... ... ... ... ... 61

II ,1 and Provincial Law... ... ... ... ... 334

» .| and Unconstitutional Measures ... ... ... 43

» I, appointed by the Crown ... ... .. ... 7

» II appointing Queen's Counsel ... ... ... ... 7

,1 „ Deputy, and Commissions of Oyer and Trrminer... ... 34

M i> dissent to Provincial Bills and Imperial Instruetion.s ... 42

» I, h'.s general supervision over acts of Lieutenant-Governor ... 28

II I, may summon additional Senators ... ... ... 14

» I, must first recommend appropriation of Public Kuvenue

before vote passed ... ... ... ... 25

w II paid by Canada ... ... ... ... ... 485

II ,1 Power, Authority, and Function of ... ... ... 8

II ,, Power in Crown to recall ... ... ... ... 29

u II Power to dissolve ... ... ... ... ... 23

II „ Salaryof ... ... ... ... ... ... 486

II „ should have no Political Friends ... ... ... 30

,1 „ Summons Senators ... ... ... ... ... 14

,1 ,1 to be guided by Advice of Ministers ... ... ... 30

GoVOrnor't' Authority derived from his Commission ... ... ... 10

Governors, Instructions to ... ... ... ... ... ... 1006

Grammatical Construction of sub-sec. 16 of sec. 92 (LiquorCase) ... 47, 1066
Grant of Letters of Representation in England where Probate in the Colonies 839, 840

Grants to Provinces ... ... ... ... ... ... 633

„ to Schools ... ... ... ... ... ... ... 345

Granville, Earl, on Duty of Governor-General ... ... ... ... 42

„ „ on Power to Legislate as to Marriage Licenses ... ... 256

Grave Question, and Special Leave to Appeal ... ... ... 441,442

„ „ withholding Sanction to Bill ... ... ... ... 43

Great Seal of Provinces ... ... ... ... ... ... 643

Grenada, Right of Appeal from ... ... ... ... ... 1011

„ in Canada ... ... ... ... ... ... 96

Grenadines, Appeal from ... ... ... ... ... ... loii

Griqualand West, Appeal from ... ... ... ... ... loii

Guernsey, Appeal from ... ... ... ... ... ... lOU

Guiana, British, Right of Appeal from ... ... ... ... 1010

Guidance of Governor-General ... ... ... ... ... 8, 9

Guiding St.ar in Canadian Politics ... ... ... ... ... 30

i !

1110

INDKX.

Gucpowder, Salo of, and Provincial Laws

Guns, Trado in

Gwynue, J-, on the Decision in Hodge v. Kog.

rA(iE
10 1
lu2
I'j;

101,

Habeas Corpus iuiil Extradition
„ „ Appeal in ...

, „ reintroduced into Canada

Hagarty, C.J.O., on Dominion Liiw exemplifying Provincial Law ..,

, „ on Power of Municipalities ...

Halifax, Appeal from
Harbour, Property in Soil ...
Hard Labour for Breach of Lienor Laws
Harmless, Double Legislation
Hasty and Unwise Legislation and Dominion Power
Head of Constitutional State, Governor-General ...
Hereditary Titles to Legislative Councillors
Herschell, Lord, Quoted

„ „ on Manitoba School Acts

H^fh Court of Delegates

„ Trcison, Appeal to P.C.
History, Brief, of Canada
„ of British Columbia
„ of Clergy Eeserves ...
„ of Ro.ian Catholic Rights
„ of Quebec
„ of the Civil Code ...
„ of the Union
Home Kule claimed
Honduras, British Appeal from
Hong Kong, Appeal from
Hospitals in Canada
Hotel Licenses by Dominion ...
House of Assembly and Contempt

„ of Commons, Canada, and Dismissal of Lieutenant-Governor ...

,, and Laws for Peace, Order, and Good Government
„ and Provincial Representation, Adjustment of ...
„ and Senator sitting therein ...
„ Duration of
„ First Election
„ how Summoned
„ Increase of Representation ...
„ Number of Members
„ Number of Representatives ...

British Columbia. Nova Scotia.

Manitoba. Ontario.

New B'unswick. Prince Edward Island.

North-West Territories. Quebec.
„ Provincial Districts for ... ... ... 17

„ Quorum of ... ... ... ... '2'i

,, Speaker, Election of ... ... ... '23

,, when Voices e<iual, Speaker to have a Vote ... 23
of Assembly of Now Brunswick, Coutinuauco of ... ... ... 41

of Lords, Appeal to ... ... ,,, ... ... 340,411

»>

••

l»

•»

o41

lor,
i
... in;i

... 1!0.-)
... 1012
... 198
102,135
... .52
58, 1070

... ;io
... ofl'J
... 187

... .m

... 1005

... 538

... 95

... 290

... 181

... 199

... 1012

.. 1012

... 124

... 146

36, 1079

... 28

l»

•1

i; i 1

...

541

104

, 105

103

205

1012
■198

102, 13o

.••

58,

1070

;io

509

187

378

1005

538

290

181

199

1012

124

145

36,

1079

overnmeiit

lent of

24
17
23
22
17
24
4,16
4

ird Island.

k^ote

23
41

346,411

INDEX.

Hudson Buy Company cut up into Provinces
„ „ Surrender of Rights, (fee, of
„ „ Territory added to Dominion

Himting and Fishing by Indians, Regulation of

Illegal Measures, Duty of Governor-General

„ Provincial License ...
Illtreatmeilt of Horses, Example
Immigration, Concurrent Povfers

,, of Chinese

Immunities of Canadian House of Commons ...
„ of Nova Scotia Assembly

„ of Quebec A.-N5Bmbiy

Imperial Acts, Not to be Altered by Provincial Act
,, Interests, and Assent to Bills,.,

,, Legislation and Provincial liCgislation
,, Parliament and Colonial Legislature, Powers of Latter ...
„ ,, and Privileges Given

„ „ and Quebec Assembly

„ „ Interference by, Becoming Rare

„ Power and Provincial Legislatures

,, Question, Direction to Crown to Intervene

Importance of Question in Special Leave to Appeal
Important Part of Canadian Temperance Act set out
Importation from Provinces

„ into Canada of Printed Copies of English Works from

Country
Impost and Taxes, to originate in H. of C.
Imprisonment. False, Liquor Laws ...
„ Imposition of

„ „ for Contempt of Parliament

Income Tax compared with License Tax on Insurance
„ ,, in the U.S.

,, Meaning of...
Incorporated Company Acting for one Province only

Incorporation of Banks

„ ,, Provincial Tax on

,, of Companies

„ ,, with Provincial Objects

Increase of Members of House of Commons of Canada ...
Indemnity, Contract* of, Not a Trade
Independence and Autonomy of each Province
India, Appeal from, in Criminal Suit ...

„ Acts and Appeal. See Bengal ...
Indian and Chinese Electoral Franchise

,, Lands

„ „ and Provincial Right

„ „ Purchase of, Requisite ..

„ Reserves

„ Trade Act ...

„ Tribes and U.S.
Indians, Prohibiting Selling of Liquor to
Indirect Tax, Converse of ...

nil

I'AGB

5
... 755

3
... 100

... 43
... 127
... 133
... 380
G3, 122

11
... 1079
... 36
... 32

42
... 336
... 22
... 118
... 36
. . 51
... 142
... 95

... 130

535

a Foreign

91
... 26
66, 102
... 324
36, 1079
... 127

69
... 76

45
... 74
... 75
... 234
2
...16,24
... 263
1,31,293
... 409
. . 1010
... 100
... 94
500,619
... 96
... 123
... 729
... 62
... 224
... 119

I ;

(

I II

1112

INDEX.

TAdK

InfaiiiOUS Crime coramittod by Sunator ... ... ... ... IS

Infringement of sub-sec. 9, sec. 92 ... ... ... ... ... 165

Inland T"i«horios ... ... , . ... ... ... ... 71

„ Navigation ... ... ... ... ... ... ... 610

„ Revenue Cases, Canadian tried, Court Established by Imperial

Authority ... ... ... ... ... 59, 09

Inquiry, Commissions for, by Quebec Legislature ... ... ... 37

Inquisitorial Power of Quebec House of Assembly ... ... ... 36

Insalubrious Kstablishments, Power in Province to Pass Laws ... ... 104

Insanity, Imprisonment for. Right to Appeal ... ... ... ... 4)8

Insolvency ... ... ... ... ... .•• ••• 78

„ and Bankruptcy ... ... ... ... ... ... 330

,, Law in Canada Analagous to English Law ... ... ■■■ 79

„ Law Quoted ... ... ... ... ... ... 165

,, Quebec and Final Judgments ... ... ... ... 80

Insolvents, Assignments by ... ... ... ... ... 78

Inspector of Fisheries going on Private Land ... ., ... ... 74

Inspectors, Raising Money to Pay ... ... ... ... ... 65

Institutions, Municipal, Examined ... ... ... 64,124,150,1043

„ ,, and Provincial Legislatures ... ... 1,293

Instructions to Governor-General, and Provincial Bills ... ... 42,1006

„ to Lieutenant-Governor, and Bills Passed .. ... ... 42

Instrument under Great Seal, Appointment of Lieutenant-Governor ... 27

Insurance in the Colonies and Probates ... ... ... ... 839

Intention of Statute as to sub-sec. 9, see. 92 ... ... ... ... 53

Inter-Colonial Railway ... ... ... ... ... ... 546

Interest ... ... ... ... ... ... ... ... 76

and Appealable Value ... ... ... ... ... 424

and Penalty for Non-payment of Tax ... ... ... ... 76

Imperial, Protecting ... ... ... ... ... 42

of Provincial Debts ... ... ... ... ... 486

Payable to Nova Scotia and New Brunswick ... ... ... 633

Interference with Dominion Law ... ... ... ... ... 65

Interim Notes of Insurance not a Policy of Insurance ... ... ... 271

,, Order pending Hearing of Appeal ... ... ... ... 436

Interlocutory Judgments ... ... ... ... ... 421, 423, 428

International Copyright ... ... ... ... ... 849,868

Interpretation of Act of 1867 by Dominion Legislation ,.. 2

Intestates Dying without Heirs, and Right of Provinces ... .. 499

Introductory Enactment of sec. 91 Examined ... ... 56,1060

Inventions ... — ... ... ... ... ... 88

Irregular Appeals... .. ... ... ... ... 422,423

lale of Man, Right of Appeal from ... ... ... ... ,,. 1012

Jamaica, Right of Appeal from ... ... ... ... 1012

Japan, Appeal from ... ... .. ... ... ... 1012

„ and Consular Courts, Action against British Subject ... ... 1031

Jersey, Right of Appeal fi'om ... ... ... ... ... 1012

Judges, Appointment of ... ... ... ... ... ... 380

Attendance in P.C. ... ... ... ... ... ... 1026

„ Duty of ... ... ... ... ... ... ... 390

„ Grossly Abusing Position, Appeal to P.C. .. ... 414,415,416

„ in Canada ... ... ... ... ... ... ... 396

INDEX.

1113

I'AIIR

... 165

... 71

... 610

Imperial

69, G9
... 37
... 36
... 104
... 4)8
... 78
... 330
... 79
... 166
... 80
... 78
... 74
... 65
I, 124, 160,1043
1,293
42, 1006
... 42
... 27
... 839
... 53
... 646
... 76
... 424
... 76
... 42
... 486
... 633
... 65
... 271
... 436
421, 423, 428
849, 868
2
.. 499
66,1066
... 88
422, 423
... 1012

... 1012

... 1031

... 1012

... 389

... 1026

... 390
414,415.416

... 306

Judges— co»<.

I'AOE

New Powers to

.. 312

Removability of

... 394

Salary, &c

..of

... 394

Jadgfment on the

Liquor Law, 1883-4

... 167

in Liquor Prohibition Case...

... 1064

Right, Special Leave refused

... 481

Judicature Act of Newfoundland ( 1 793)

... 694

Appointment of Judges . .

... 389

Provincial, and Dominion Legislation

... 323

Judicial Committee of the Privy Council, Acts in force ...

... 1005

and Admiralty Courts

... 1019

and Admission of Evidence

... 1015

and Power to Hear Election Petitions

... 40

and Questions between Governor-General and

Lieu-

tenant-Governor

... 29

and Security for Costs

... 438

and Trial of Criminal Cases

34,409,413

»»

Appeal from any Colony may be provided for ...

... 1023

Appealing, Time for

... 1008

>•

Appointment of Members of

... 1026

Assistant Registrar

... 1025

•t

Colonial Judges Sitting

1019, 1030

Compelling Appearances ... • ...

1016-10)7

Contempt, P— ■ 'ling ... ... lOlC

, 1020, 1024

»i

Costs

1017, 1021

Custody of Records of High Court of Delegates

... 1022

»>

Death of Parties ...

... 1018

Decrees to be carried into eifect by Colonial Court

... 1018

Definition of Terms

... 1022

Depositions may be Ordered

1016, 1016

Enforcing Decrees

... 1020

l»

Evidence

... 1016

„ taken in Court below

... 1024

Facts may be Remitted to Court in Colonies ...

1016,1016

»>

Finality of Decisions

... 468

»l

Fixing Quantum of Damages

... 440

•9

Foreign Jurisdiction Act ...

... 1031

Hearing of Appeal

... 1024

" High Judicial Office," meaning of ,.

... 1028

Inhibitions

... 1021

Indian Judges Sitting

... 1019

Issue may l)e directed to be tried

... 1016

Judgments, enforcing

1020, 1024

»f

Judicature ' ';t, 1873

... 1026

1876

... 1026

Lords of Appeal in Ordinary (Present)

1026, 1030

i»

Maritime Causes .. .

... 1026

Monitions

... 1021

»>

Neglect to Obey Orders

... 1024

New Trial

... 1016

»»

Orders made on Appeal and Death of Party ...

... 1018

Practice...

394, 1005

Prize Appiiils

... 927

Proceedings in Appeals

... 1018

Production of Papjrs

1008, 1017

Proofs, taken by Clerk to P.C

... 1024

ll •

- 'J

III

INDKX.

Judicial Cummiueo— fo«^ |.^„j,

•> >i Qualiflcrttion of a Lord of Appeal in Ordinary... ... 1028

»f .. Quorum ... ... ... ... .,, 1025

« .. ReferoncG by (). in C. ... ... ... ... loig

It ,1 Reference to Kogistrar ... ... ... ... 1017

n » Registrar, Appointment of ... ... ... ... 1017

» » Rules, Power to make ... ... ... ... 1022

n » Salary of Lords of Appeal in Ordinary ... 1020,1030

» .. Surrogates ... ... .., ... ... 1020

» „ Terms, Definition of .. ... ... ... 1022

n » Time for Appealing ... ... ... ., 1017

,, „ Witnesses may be Punished for Perjury ... ... loifi

,, Triljunwl for Patents in Canada, Minister of Agriculture ... . 8!)

Jure Corona' ... ... ... ... ... ... ... 523

Jurisdiction, New, thrown on Old Coui-ts, Competency of ... ... 20

„ of British Court ... ... ... ... ... 4 1 7

„ of Governor-General ... ... ... ... ... 388

„ of Judicial Committee ... ... ... ... ... 1005

„ of various Courts in Canada, Glance at ... ... ... 306

„ of High Court in Salvage ... ... ... ... 984

Jury L*ecision ... ... ... ... ... ... ... 446

„ ,, and Special Leave . ... ... ... ... 440

„ Right to Challenge, Appeal ... ... ... .. ... 418

Justice, Administration of, Old Act ... ... ... ... ... 565

„ in the Province ... ... ... ... ... ... 308

Justices, Appointment Jof, in'Indian Territories... ... ... ... 601

„ in Newfoundland, Act of 1824 ... ... ... ... 627

„ in North-Wesf Ter-itories, Old Act ... ... ... ... 729

„ of the Peace, and Legislation therefor ... ... ... 390

Keeping open on Sunday ... ... ... ... ... ... 125

Keewatin, Increase of Territory to ... ... ... ... ... 554

Kimberley, Earl, on Lieutenant-Governor Appointing Queen's Counsel 35, 36

„ „ on New Brunswick School Question ... ... ... 337

King, J., on Different Aspects of Subjects ... ... ... ... 192

King's Commission to Admirals to try Offenders in any of the Plantations ... 704

Kingsdown, Lord, on Criminal Appeals ... ... ... ... 415

Knutsford'S, Lord, Letters on Production of Probate in England ... ... 839

'■■v.' s

Labour, Hard, under Liquor Laws

Labrador, lUsiimi of History of

Labuan, Appeal from

Lagos, Appeal from

Lakes, Great, Property of Fish in

Lambe Cases

Land, Aliens, and Provincial Laws
„ and Provincial Legislation
„ and Provincial Property
„ Allotted for Protestant Clergy

... 135
6

... 1012
... 1012
... 73
... 113
... 307
... 71
499, 513
... 584

102G,

I'AUK

1028

1025

1018

1017

1022

1030

1020

1022

1017

1016

523

417

388

1005

396

984

446

449

418

565

308

601

627

729

390

. 126

. 554
35, 36

, 337

,. 192

,. 704

. 415

,. 839

... 136
6
... 1012
... 1012
... 73
... 113
... 307
... 71
499, 513
... 584

INDEX.

1115

Land — aont.

„ Held

FAUE

Socngo

624, 660
46

in Fief and Seignory may be changed to Common
Tenure
„ „ in ft Province by a Dominion Company
Lands, Indian, Requisite to Purchase of
„ Public Management and Sale of
Language of Journals of H.C. of Canada
Law by Province to carry into effect Act of Dominion, Validity of

„ Constitutional Powers of U.S. contrasted with Dominion and Provinces

„ Criminal

„ correctly decided, chance of Appeal

,, Limiting Liquor Licenses

„ re Liquor

„ Restriction on sale for sake of public safety is not a Law in relation to

Property ...
„ Society of Manitoba
„ Validity of Colonial Laws
Laws, Continuance of Existing
„ of Canada, Old

,, on same subject by Dominion and Province ...

Leave to Appeal, Cases

» >, ., Allowed

» „ „ Refused

M „ Colonies, alphabetically arranged

u „ Election Cases, none to be granted

„ „ if a doubt of the soundness of the decision, duty to grant

Power of Queen to grant
Question and Test on which granted
Special
to Crown
Leeward Islands, Right of Appeal from
Legal Estate in Crown Lands

„ Proceedings under Merchant Shipping Act
„ Rights and Schools
„ Tender
Legfislate, Power to, does not prove Property in the subject
Legislation, Ancillary Power

„ and the Prerogative of the Crown .. .

„ by both Dominion and Provinces ...

„ by either Dominion or Province ...

„ by Dominion, Limit on ...

„ by Provinces, &c., extent of their power

„ Conflict of

„ Double

„ Imperial

„ of Dominion modifying Provincial Legislation

„ Provincial

„ of Canadian Parliament, source of, as compared with

Legislation
„ Uniform

Legislative Afsemblies, Meeting of ...
„ Assembly and Elections ...

„ ,, of Ontario

„ „ Quebec, Constitution of ...•

„ „ „ and Punit^hnient of Contempt

„ Authority of Parliament of Canada

„ Council of Quebec, Composition uf

n
»
•I

123

542

438

129, 140, 1064

... 133

... 393

738, 1079

... 637

... 566

... 78

... 406

... 449

... 472

... 1009

19,46,308,314

... 82

441, 447

122, 410 e« seq.

476

1012

992

356

142

104

1064

1043

142

1070

132

302

Provincial

132

136

31U

36,38

; :[ii I

iSM

1116

INDEX.

Legislative — <^ont. vrnv.

„ Council of Quebec, Quorum of ... ... ... ••. 37

„ „ Speaker of ,.. ... ... ... 37

„ „ Old ... ... ... ... ... 568

„ LawH, Continuance of ... ... ... ... ... 30

„ Power, Ontario ... ... ... ... ... 35

„ „ and Appointment of Lieutenant-Governors ... ... 27

„ „ and phrase used ... ,. ... ... .. 27

„ „ of Dominion Examined ... ... ... ... 56

„• „ of Provinces strictly limited ... ... ... 384

„ Privileges jealously guarded ... ... ... ... 109

Legislature ftcting by niiii"lftto from Imperial ... ... ... ... 49

„ Colonial, powers of ... ... ... ... ... 22

„ in Colonies, Power of, to alter Merchant Shipping Act ... 1000

,,: of Nova Scotia, Continuance of ,.. ... ... ... 41

„ of Nova Scotia and New Brunswick, Continuance of , . . ... 41

„ Provincial, and derivation of authority ... ... ...1,293

„ Provincial, not Delegates ... ... ... 1,142,293

LemnOS, Appeal from ... ... ... ... ... ... 1014

Lengfth of Office of Lieutenant-Governor ... ... ... ... 28

Letters Patent and revoking ... ... ... ... ... ... 460

„ „ in the Colonies, Old Act ... ... ... ... 732

Libel ftid Parliamentary Privilege ... ... ... ... 12,36,1079

,, Case, Appeal ... ... ... ,.. ... ... ... 417

,, Letters to Colonial Secretary ... ... ... ... ... 436

„ Privileged Communications ... ... ... ... ... 456

Liberties to Fishermen by Treaty with U.S. ... ... ... ... 805

License by Dominion and Provinces ... ... ... ... ... 56

„ Burden of Proving ... ... ... ... ... ... 66

,, Cases ... ... ... ... ... ... ... 68

„ Commissioners and Authority from Provincial Legislatures ... 137

„ for Exposing Meat ... ... ... ... ... ... 161

„ for Vessels ... ... ... ... ... ... ... 161

„ is the machinery used to restrict ... ... ... 146,1075

„ Liquor, U.S. ... ... ... ... ... ... 160

„ on Selling Intoxicating Liquor ... ... ... ... 161

,, to Brew, indirect Taxation ... ... ... .. ... 57

,, to Brewers ... ... ... ... ,., 67,127

„ to Fish and Legislature's Powers ... ... ... ... 72

„ where no penalty on not taking it out ... ... ... ... 127

„ which would amount to a prohibition, Validity of ... ... 58

Licensee not bound to pay for the License ... ... ... ... 127

Licenses by Dominion ., ... ... ... ... ... 146

„ for Guns from both Dominion and Provinces ... ... ... 146

„ Liquor, Nova Scotia Act ... ... ... ... ... 126

„ Marriage, Legislation as to ... ... ... ... ... 266

„ Shop, Tavern, and Petty Hawkers ... ... ... 52,1075

Licensing and Prohibition, meaning of ... ... ... ... 190

„ Chines'-.. . ... ... ... ... ... ... 122

,, not Commerce ... ... ... ... ... ... 214

„ Power ... ... ... ... ... ... ... 197

„ Sale of Meat ... ... ... ... ... ... 161

Lieutenant-Governor Acting wftra t'trcs ... ... ... ... 28

„ „ and Dissolution of Legislative Assembly ... ... 40

„ „ and Deputy ... ... ... ... ... 36

„ „ and Higher Authority ... ... ... ... 9

It „ and Bemoval from Office ... ... ... ... 20

INDEX.

1117

LiOUtonaJlt-Oovemor — cont.

„ „ and Salary

PAOK

30
... 28
7,11,36
... 27
... 36
... 33
... 28
... 28

„ „ and Supervision

„ „ Appointing Queen's Counsel

I, „ Appointment of

„ „ Appoints Councillors for Quebec ...

„ „ as ti Corporation Sole

„ ,, Dismissal of ...

„ „ Holds the Queen's Prerogative Power

„ „ in Council and Lieutenant-Governor acting with Advice

of Executive Council the Same ... ... 34

„ „ Office by Pleasure of Governor-General ... ... 28

„ „ Represents the Queen ... ... ... ... 7

„ „ Paid by Canada ... ... ,,. ... 30

„ „ Reserves Bill in Capacity of Officer of Dominion ... 42

„ „ Term of Service ... ... ... ... 28

„ „ to Summon Legislative Assembly ... ... ... 38

Life of Canadian H. of C. ... ... ... ... ... ... 23

„ and Property, Provinces can Legislate to Protect ... ... 106,1043

Lighthouses in the Colonies ... ... ... ... ... 991

Limit of Prerogative of Queen ... ... ... ... ... 31

„ of Time within which Bill to be Disallowed ... ... ... 26

„ on Dominion Power
Limitation and Prohibition, Distinction between

of Provincial Powers, Tax on Dominion Officer
on Issue of Licenses . .

on Powers of Congress
on Prerogative of Queen in Quebec ...
on the Power of Parliament of Canada
Limits of New Brunswick
„ of Nova Scotia
„ ofOntario ...
„ of Quebec ...
Line of Railway to a State in U.S.

„ of Steamers between Provinces
Liquor Act, Nova Scotia

„ ,, Old, Examined ...

„ Laws

„ „ Attempt by Dominion to Institute Liquor Licences ...

„ „ Brewer Selling on the Premises ...

„ „ Cases. Hodge's

„ „ „ Russell's

,, „ „ Prohibition Case

„ „ of 1883-4. Judgment

„ „ of New Brunswick

„ „ of Ontario, 1877, in Hodge's Case ...

„ „ Provisions of Ontario License Acts and Canadian Temperance

Act ... ... ... ... ... 161, 1064

„ Repeal of ... ... ... ... 1042,1064,1070

„ License, and Sanction of, by Ratepayers,.. ... ... ... 162

„ „ Limitation on Issue of ... ... ... ... ... 65

„ Prohibition and Special Leave to Appeal ... ... ... 467

„ Prohibition Case, 1896-6. Argument in P.C. ... ... ... 1044

„ „ .,„ Judgment in Canada ... ... ... 164

„ „ » .. in P.C 1064

„ Selling to Indians ... ... .. ... ... 62,224

„ Traffic ... ... ... ■•■ 102, 161, 1042

... 61,119,140
149, 1075

... 65
... 61
... 31
... 800

... 225

... 224

... 126

... 218, 220, 1066
129, 140
... 145
... 158
... 135
... 129
... 1042

157

... 162
... 138

1118

INDEX.

Liquor— co»'.

Trnfflp and Abolition undor suli-HPO, 0, sec 92
„ unci OnHolidnt ion of Laws
,, Keopinp; Oppn on Sunday

„ Provincial Delegation to CommisNioners to Regulate, Valid ...
Tax, Old (Imperial) ...
,, on Wholeialo
Literal Moaning of the words " Regulation of Trade and Commoreo " must

Iweutdown
Loan for Purchase of Rupert's Iiand
,, to Canada

„ to Province of British Columliia ...
Local Administration, Authority fur ...
„ Acts and Imperial Acts
„ and Dominion liUgislation
„ and Personal, Examined
„ and Private Railway to U.S. Territory ...
„ and Provincial, and Power of Canadian Parliament ...
„ Assembly and use of the word " Parliament"
„ „ Protection of Members

„ Courts of Admiralty ...
„ Law and Corporations ...
„ Licenses, Imperial

,, Legislature, Power incidentnl to Close Public Houses on Sunday
„ Matter may become a General Matter
„ Municipal Revenue and Canadian Temperance Act ...
„ Option ..'. ... ... ... ... 134,

„ „ Law compared with Law for Sick Animals ...

„ „ Law Repealed by New Municipality

„ or Private Matters

„ Purposes, Provinces cnn always impose Direct 'J'axation
„ Revenue, raising
„ Societies
„ Wants
^, Works

„ Undertaking, what
Lodging Printed Appeal Cases. jSe« Note
Lower and Upper Canada United
„ „ „ Severed

„ Canada, Marriage Laws
Lumber Dues, New Brunswick
„ in Province
„ Security ...
Lunatics, Removal of Criminal

PAdP.

■ nci!)
125

... 118

... 7fi2

... 8n<)

... one

... :i2

... l.J2

... 134

... 07

... 1042

11, 1070

... 1070
395, 888

... 244

... 220

... 161

... 157

... 132

163, 1042, 1064

... 136

... 126

... 328

... 67

... 126

... 331

... 230

... 224

... 66

... 1041
5

... 4,6

... 264

... A35

... 73

... 296

... 841

U achinery of Limitation and Restriction is License
Macnaghten, Lord, on Manitoba Schools Acts ...

Madelaine Island ...

Madras, Appeal from. See Bengal ...

„ School
Magazines and Copyright in Canada ...
Maintenance of Prisons and Reformatories
Majority necessary in any Bill altering Electoral Limits

... 140

... 371
6

1010, 1014

... 347

... 861

... 123

... 38

INDEX.

Malacca, Appeal from

Male liritish Sulijiict in Canada, Voto given to, in Algomn

Malta, A piuMil from

Man, Iflu of, Appoftl from

Management of Cimsolidatwl Fund ...

II Ri'fiirmatorios and Prisons

« Pulilic Lands

Mandamus in Liquor Case ...

Manitoba Act

„ Aliens holding Lands

„ and liarristiTs and Solicitors

,, and Dominion Parliament ...

„ and Escheats ... ... ...

„ Appeal from

„ History of

„ Judicature

„ Representatives in H.C,

„ yunators

„ Schools ...

I, „ Act

„ „ Catholic and Protestants Cases

„ State before Union

Manufactares in Canada ...
Marine Hospitals ...
Maritime Provinces, Senators

Marriage Acts

,, and Divorce, Expression as to
„ „ Snbjeois Examined

,. Licenses, Provincial Kills for
„ Solemnization of ...

„ Validity Act
Marshall, C.J., on Constitution of the U.S.

Matabeleland, Appeal from

Matrimonial Causes, Appeal to P.C. ...

Matter within exclusive competency of Provincial Legislature

MauritinS, Appeal from

Maximum Number of Senators

McCarthy Acts, 1883-4

Measures and Weights

Meat, Sale of, to be Licensed

Medical Act, Colonials Practising in England ...

„ Inspector on British Ship

„ Practitioners in Canada

„ „ Colonies

Meeting of Dominion Parliament

„ Legislatures of Ontario and Quebec ...

Members of H.C. Canada for New Brunswick ...

„ of H.C. Canada

„ of Legislative Assembly, Ontario

,, „ „ Quebec

„ „ „ Question of Privilege

Mercantile Law Question, Appeal allowed
Merchant shipping Act, 1894 : —
Accidents, Report of

Admiralty Jurisdiction over British Seamen in Foreign
Advance ofWages ...

1119

Port

... 1012
... 30
... 1012
... 1012
... 486

. 123
. . 12»
... 161
360, 653
... 101
... 721

. 800
... 518
396, 1012
6
... 403
4
... 13
... 372
... 333
... 371
... 373
... 635
... 71
... 13
249, 2.'j6
.,. 260

48, 156
... 254
... 2J0
... 741
... 118
... 1012
... 435
... 85
... 1012
... 15
... 188
... 76
... 161
... 884
... 943
... 368
764, 884
... 12
... 38
... 18
16
... 35
... 36
36, 1079, 1088
... 433

... 966
... 994
... 937

il'i

V- !

1120

INDEX.

M<'r('hrtnt 8hippinp[ Act, 1894— fow/,

Agrecmt'iit with Crow, AltornlioiiH in
„ Condition

M
N.
N
If
>•
W

Copy of

Foreign-going Ship
Vorgery of
Form ,.,
Home-going Ship
need not produce
Period of
„ with LascnrH
AUotmont Notes, Payment of WngDB

„ „ Suing on

Alterations to Ship, Kvidoncc of

„ ReturnH as to

Anti-Sforbutics, supply of, in Colonies ...
Appeal on Summary Conviction

„ Court of Survey
Apprentice.,.

„ Pauper ...
Apprenticeship of PauperH
AmjHt of Foreign Ship occasioning damngi'

„ Deserter
Assignment of Salvage Rights ...
Bank, Savings, Allotment of Wages
Bankruptcy of Owner and Mortgagee ...
Beneficial Owner
Births and Deaths, Registration
Board of Trade and Harbour Dues
„ and Savings Banks

„ General Control of

„ Inspectors

„ Purchasing Wreck

British Ship, ceasing to be, delivery up of CortiAcate
„ Prosecution of Offences
„ Seaman in Foreign Land
„ Ship, qualification of Owner, Registry
Cancellation of Passenger Steamer Certificate
Cargo, Deck, Dues ...

„ Salvage of
Civsualties, Inquiry Courts

„ Certificate of Officer
„ Removal of Master
Certificate, Colonial ...

„ Delivery up, when Ship lost

„ Endorsement on ...

„ Grant of

„ Loss of, of Competency ... ...

„ New, Power to grant

„ of Competency ...

Fees

Forgery of...
Form
„ Production of

of Mortgage, Contents
„ Loss of

„ Revocation of

>»

»»

VAOK

... ll.'Ki

... 030

... 036

... 030

... 036

... 930

... 036

... 936

... 030

... O.-JO

... 037

... 038
031,032

... 032

... 9»3

... 993

... 948

... 93.5

... 930

... 935

... 994

... 945

... 944

... 937

... 931

... 932
946, 960

... 1000

... 938

... 998

... 1000

... 979

... 930

... 998

... 937

... 927

... 948

... 933

... 981

... 973

... 935

... 930

... 934

... 936

... 930

... 934

... 935

... 936

... 935

... 931

Tir^l

INDFX.

1121

Mcrchimt Hhippinp; Aot, 1894— co«<.

PAflK

Ourtillciito i)f Movt){iiK<', Huliw as to

031

>1 II Ntilo of

031

„ of PiiHHongor Htoamor'H Survuy

048

„ of Itogistry

920

,1 of DiNohargu of Seaman Abroad ,,.

.. 941

„ ProviHiimal

931

,1 to Eiij^iiiecrH

034

„ using Improper (irtiflcato ...

930

Change of OwnerHhip, Rpgiblrv anew ...

032

.Charge on Owner, Relief of Heaman'n Family

041

„ on Wagon

... 03<J

Coawtguard, Komuneration on Wreck and Salvage

... 084

CoivHting Ship and Load Line ...

... 0G8

Collision, Assistance

... 06S

„ Duty to assist

005

„ Regulations

964

Colonial Certiflcates of Competency

... 936

„ Governors forwarding Emigrants, Expenses

. . 950

„ Legislatures and Part 2 of Act

047

.1 ., Power of

1000,1001

„ Lighthouses

001

„ Torts, Deposit of Document ...

047

II .1 Engagomont of Seamen ...

... 936

Registry ...

934

„ Ships, Load Lino

968

„ Voyage, Definition ...

... 048

Colonies, Supply of Anti-Scorbutics

943

Colours, National, hoisting

... 933

Compensation to Seamen, improper discharge

930

Competency, Certificate of

034

„ Colonial Certificates

936

„ Engineer's

934

„ Forgery of Certificate of ...

935

„ Production of Certificate ...

036

Naval Officer's Certificate ...

934

Complaints of Ship Unsafe

072, 073

Compliance with Act, Power to enforce ...

999

Confiict of Laws

047

Corporations and Sailors' Home

... 947

Court and Deserter ...

945

„ Power to Prohibit Transfer

... 030

Contracts, rescission of

039

Consuls forwarding Emigrant Ship Passengers ...

959

Costs, Unsafe Ship ...

972

„ Procuring Punishment of Seamen

... 939

Creditors and Deceased Seaman

... 940

Crew, Certificates as to Agreement with

936

„ Changes in Foreign-going Ship

936

, Copy of Agreement

... 936

„ Engagement with

936

„ Forgery of Agreement ...

936

„ Foreign-going Ship, Agreement with

... 936

„ Home-going Ship, Agreement with

936

„ List of

946

Crown Claim to Wreck

070

Customs, Legal Expenses by Commissioners

998

S 2340.

4 B

■■

;l 1

1122

mnia.

Mon'Imiii Sliiiniinn Aot, 1801 iviif.

CuHtinly (if (\irtitlonti' of Konistry
I)iimn((ON unil Part Owiiom
niviigmMus (looils
Doiithfi, Hojjtistnitioii of

„ Hotiini of
Dolil of Somimn, Uivovory of ...
lUvmsod Somimii iiml Will

„ ,. Ciivlitorn of ...

„ „ l)l'(K>.sit

„ „ I'lMjitTty of ...

IVok CurRii Oinvs
|)i'fk-limw, Marking...

Ooolaratioiis, Kalso, mt to U(>niHtry of Allorations ...
„ i-t'spivtiiig .AltonitioiiH, I'Vi'N, Ki'fiistoi'

DiHluotioiiN from Wiigos

„ in asorrtniiiin)!; 'I'oiiiiafri"
Dofliiitioii, riVi.M'iiH[or Ship
„ 'IVriUN

„ of I'rloiiial VoyHjJti' ...
DiJivory up of t'oriitlonto

,, of Acoomit ...
PoHorl, Knticinp; to ...
Dosortw, Anvdt of ...

„ ( iiivcyain'o on llonnl
„ I'orfoitiiri' of Wa^iw ...
„ from foreign Ship ...
„ linpri.sonmont of
DoNiTtioiiH .Miroail
ni'stituto SivimtMi
DotiMition of I'rojH'rIy for Salvagi'

„ of Sliip for Pani.im's
Pi.slmi'Nc'mtMit.M of \Va){os
Disi'harno of Stvinii'ii .Miroail ...
„ Impi-opcr SiMunan

Mort(j;a);i-, Kiitry of
„ SiMimoii

Pisciplino ...

„ of Stowaway H ... ... ...

HiHlivss on Ship for I'MMiam' ...
PiNliv.ssi'il Soainoii
Docnmoiit.t. anil KiirniH

., 'I'ninsmission of, l>y pchf

i)niii(jlil of Ship, Si'ttli'mciit of ll'spntc as to
PiU's, Dwk ('ar)j;o
Local Iiinht
I.ijjhthouso .. . .

Kli'i'lrii'ily, Ship I'roiH'lloil liy ...
Kiainranl ShipH

„ „ Al».lraot of Part ;t

„ ,, .\iToiumoilaiioii of Sirrrani) PiiHNi'ti({i>rH

,, .\ppoal to Courl of Snrvoy
„ Application of Part U ...
,. I'onvoyanw WrwkiMl Pa.sKunpfiTN ...
,, Carriani' of PaNHi'njJUM-H ...
,, Cloarani'i' ... ...

,, DangMrouH (hxHU

II
»
11
II
II
II

r.Mir
... 'J'.!'.)
... »7s
... '.»(•>;)
... or.n

... Ulli

... nil
.. '.no
... nil)
... i>;is
... ttio
... \r.\:\
'.•(if), uii:
•.i;u , '.iM'j

... 'XVI

... ".>:i7

... '.);i;i

,' 1 1

.. 1001
... '.U,S
. . . lliiO

... '.i:i7

... !M(1

... '.ll.'l

... \i\;<

... '.)I0

... oio

... ii-i'>
oiri, '.M(i

... '.Ill

... '.LSI

... ii'.n;

... i»:i'.i

... nil

... ',i:iii

... '.i.'ii

... il.'Ui

... '.ii.'i

... !l|(i

. . . '.I'.n;

... '.MJ

... '.I'.I.S

... 100!

... !).S,S

... i);i;i
... imo

081), '.I'.Ml
... 1 00 J
1)17.010
... Oi°>l
... ll.'iO

... it,)7

1)01,0(12
... D.V.)
... OAO
... !l,')7
... DM

r 'I!

r.Mii'
... It'J'.i
... »iS
... SllUt

... wn
... '.»i(i
... nil

.. !"ll>

... ".>tn
... '.';is

... 010

... !»;i:i
i):ll.'.t!i'2

... '.'!!'2

... i>:i7
... \m
... fiij

.. 1001

... yis

... i>;io

... «;!7

... uir.

... Ol.i

... ".>i.^
... i)i<i

... IHC

... '.H.'p

<) ir>. iMO
... '.Ill

... '.IS!

... il'.ll'

... ".i:!'.'

... on

... o:tii

... o;n

... o;u5

... Ol.'i

... OKI

. . . O'.lO

... or.!
. . . oos

... 1001

... OSS

... o;i;i

... 000
081), 000
... 100 J
017.010

... w\

... 0,')0
... 0,i7
001, 002

... o.v.)

... 0.')0
... 0,i7
... 043

INOFX.

MiMflmiil .'^liiiipiiig Ai'l, 1804 rout.

Kniiitnnil .'^liil's. Iti.MiMjiliiu' on llounl

,, ,, KxiMiipt fiHMii Hiirvi'V ...

., ., I'oi'lVitHri' of . .

,, ,. l'"orm.'< utnl l''iM's

,, (ioviTiu)!'.") forwiitiling I'ltsson^orN
., .. lliirlumr Hy-liiwN

,, liinpoi'tiiiii of ...
,, liisuniiuMi of I'liKsonjfi'f Moiii'v
,, ,, Uiiuliiiff I'lUMSi'iijiiTs lit Wrong I'liioo

,, ., liisl iif l'iiK.sonp'rs

„ ,, Miiintt'iuuioc of .'<t(H>iiigi> l'ii.s«(iiij{orN

„ ,, MiisIim-'n Hoiul

„ Mi'ilifiil lii.-fiHvtor of Stwinigo I'liNNoiinurs ami

Mi'ilii-nl .stivll...
,. Militiivy SloivH

Ntimln'i' of I'as.'KMip'i's ...
., l'im.si'iij{i'r ("oiilrai'ts
,, ,, riivmi'iil of I'iuv

„ .. Provision.-*, Wiili'i". ami Moitioal .Stmv.s

|{i>-liimlin)j; of l'a.>iMMijp>r!*
Ki'triitalion of ."^tocrago Pa-s-songi^i-N
„ .. lu'poii of Ki'lnrn

„ ,. Uolnrn of Punsjigo-iiioiioy ..,

„ „ .'^alo of .*<pirit.s

„ I, Sliorl of IVovisioiis

II i> Stowage of (IooiIn

„ „ .SiiKsistom'o of PiLwongoro

,. Wm-k.>.l

Kniigration Knuul.s ...
Kmloi-NonioMt on t'ortillcnti'
Kiigagoniont iif SwmuMi
Kngini>or'.H ('crliflmto of Compotoni'v
Kniioing Smincn to Dosovt
ICntrv of Pi.si'hai'go of Ship l"wm Mortgago
Kipiipniont, Kniignuif Sliip'n ...
,, Ooui'i'al ...

of PiitwiMigm' Slmmor
I'lipiilaMo Kiglit.s
Kviilom'o ami Wi-ivk ...

„ UrtnriiN of AlliTation
„ wlicn Ship I'an.scs Patnagi-
Kxainination I'Vos

„ of Mastrr.s anil Si'anicn

Kxrtw* Pa.>iHi'ng(>r. Penalty
l''alsi> Name of Ship, Srainan giving
l''aniily ii!' Seaman ami Ut'lii'f ...
I'Vi'H on Kxivniinalioii tor I'lilitleale of Conipeteney
„ t'or Mea.snremenl
,, PaHNonger Sli'anier Certilli'ate
„ PitotJige I'ertitU'Hten
,, UiKviviTN of Wnvk
KiNliing Ikxktti

„ „ Applientioii of Aet to ... ... ,,

I'V' .ml Light Signals

I'or^ory of Agrwinoiit with ('ri>w

*^''"itteiit« of CompoloMcy ...

(^rt«\v

112a

I'AlIK

... O.'.S

... 1)(U

... 0.')8

... OtU

... nw)

.. Ofil

... \K,:

... 060

... M9

... I)fl7

... l)/i8

.. o.'>n
... \m\

U.Vi, \iiV>
... Ofil

... »/•)()

... !)ri8

... »/)7
0.')I-0/5»

... O.'Ki

... \)M

... 067

... i)6«

... 068

... 0'>7

... 1)61

... 068

. 060

... 0(10

... «;to
... o:u»
... o;u

... 1)10

... o;ii

... 060
... 000

... oil)

... OH'i
... 071)
... «;ii

000, 007

... o:n
... o;t4

... 018

... 016

... 041

.. OiM

... o;t!i

... 048

... \m\

... 084

Mi m*

.. 1002
... 000

... 9:io

... 0.1S

4 1) 2

1124

IVDEX.

Merchant Shipping? Act, 1894— eo»<. rAfiK

Forgery of Passenger Stenmor Curtiflcnto ... ... ... i'fS

Transfer 932

„ Siivings Bank Documents ... ... ... ... 938

Foreign-going Ship, Agreement with Crew ... ... ... 936

„ „ Payment ofWages ... ... ... 937

,, „ Production of Apprentice's Indentures ... 935

„ Ships and Load Line ... ... .,. ... ... 967

„ „ and Collision Regulations ... ... ... 96.5

„ „ and Application of Act ... .. ... ••• 1900

„ „ Desertion from ... ... ... ... ... 946

„ „ Load Line ... ... ... ... ... 968

„ „ Occaaioning Damage ... ... ... ... 994

„ „ Pilotage Dues ... ... ... ... ■•• 988

„ „ Unsafe, Detention ... ... ... ... 973

„ Countries, leaving Seamen in ... ... ... ... 941

„ Money, Payment of Wages in ... ... ... ... 937

„ Places where H.M. has Jurisdiction ... ... ... 1001

„ Ports, Engagement of Seamen in ... ... ... 936

„ „ Deposit of Documents ... ... ... ... 947

„ „ of Registry, Measurement ... ... ... 934

Foreigner and Certificates of Mortgage ... ... ... ... 931

Forfeiture of Wages, Illness of Seamen ... ... ... ... 939

„ of Wages and Desertion ... ... ... ... 946

ofShip ... ... ... ... ... ... 933

Frauds in Procuring Emigration ,,, ... ... ... 960

Freight, Lien for ... ... ... ... ... ... 977

Grant of Certificate of Competency ... ... ... ... 934

Grades of Certificate of Competency ... ... ... ... 934

Grain Carriage ... ... ... ... ... 970,971

Goods and Lien for Freight, Definition ... ... ... ... 977

„ Discharge of Lien ... ... ... ... ... 977

„ Lien for Freight ... ... ... ... ... 977

„ Provisions as to Deposits ... ... ... ... 977

„ Warehousemen selling ... ... ... ... ... 977

Home-going Ship, Agreement with Crew ... ... ... 936

Payment of Wages ... ... ... ... 937

Harbour, Local Rules and Collisions ... ... ... ... 965

H.M.'s ships. Exemption of ... ... ... .. ... 1001

Illness of Seamen, Wages ... ... ... . ... 938

Imprisonment, Wages of Seamen ... ... ... ... 939

Incapacitated Persons ... ... ... ... ... 932

Indentures of Apprenticeship, Production of ... ... ... 936

Inquiry Courts in Shipping Casualties ... ... ... ... 973

Inspectors of Board of Trade ... ... ... ... ... 1000

Insurance of certain Risks ... ... ... ... ... 978

Interest in Mortgage, Transfer of ... ... ... ... 931

Jurisdiction of Admiralty over Hritish Seamen in Foreign Parts ... 994

„ Provision as to, in case of Offence .. ... ... 993

,, Offence on Board Ship ... ... ... ... 994

Lascars, Agreement with ... ... ... ... ... 936

„ Relief of Destitute ... ... ... ... ... 941

Last Ship or Name, Penalty for giving False ... ... ... 946

Legislatures, Colonial, Power of ... ... ... 1000,1001

Legal Proceedings ... ... ... ... ... ... 992

„ Emigrants ... ... ... ... 060, 961

I^iability of Beneficial Owner .,. .,. „. ,., ... 937

irts

PAOR

... iM8
... 932
... 938
... 936
... 937
... 935
... 967
... 965
... 1000
... 946
... 968
... 994
... 988
... 973
... 941
... 937
... 1001
... 936
... 947
... 934
... 931
... 939
... 946
... 933
... 960
... 977
... 934
... 934
970,971
... 977
... 977
... 977
... 977
... 977
... 936
... 937
... 965
... 1001
... 938
... 9.39
... 932
... 935
... 973
... 1000
... 978
... 931
... 994
... 993
... 994
... 936
... 941
... 946
1000, 1001
... 992
960, 961
... 937

INDEX.

1125

Merchant Shipping Act, 1894— co»<.

I'AOB

License to Supply Seamen

960

Life Buoys

... 966

„ Loss of, Liability of Shipowner

978

„ -saving Appliances

966

Lighthou.se Authorities, Expenses, Estiiblishment,

Estimate, Mort-

gages

... 988, 990, 991

„ Construction, and Powers as to Land, &c

989

„ Duos

989, 990

„ in the Colonies

991

,, Offences ...

991

Limitation on Shipowner's liability

978

. List of Crew

.. 946

Load-line and Deck-lines

966,968

„ Eegulations

966,968

Loading Timber

969

Local Acts and Tonnage Rates

... 933

Lodging-houso Keepers and Seamen

... 944

Logs, Official

... 946

Loss of Certificate of Mortgage

931

„ of Certificate

930

„ of Ship, Eeport of

966

Lost Ship, Seaman's Wages ...

940

Managing Owner, Registration of

932

Marine Boards, Local

946

Marine Store Dealers

... 980

Master and Mate, Grant of Pilotage Certificates ...

986

„ and Pilot, Liability

... 988

„ Certificate of Competency

934

„ Change of

917

„ Penalty on leaving Destitute Seamen

941

„ Remedy for Wages

... 939

„ Removal of ...

973,976

„ to deliver Account

937

Measurement, Surveyor's

933

Medical Attendance, Expenses of

... 944

„ Expenses, Recovery from Owner

... 944

Medicines, Inspection of

943

Medical Inspectors, Appointment of

943

„ Inspection ...

... 943

,, Practitioner to be carried

944

Medicine, Regulations as to ...

943

Measurement

933

„ Fees ...

... 933

Mercantile Marine Fund

992

Misconduct endangering Life or Ship ...

946

Money, Foreign, Payment of Wages

939

„ Order, Fraudulent

9.38

„ Orders to Seamen

938

Mortgagee not treated as Owner

931

,, Entry of Discharge

... 931

„ Priority...

931

Mortgage, Certificate of, contents

... 931

„ Loss of Certificate of

... 931

„ not aflfectod by Bankruptcy ...

... 931

,, of Ship or Share ...

... 931

„ Restriction on Certificates of

931

I ' i

:h I 5:

1126

INDEX.

Merchant Shipping Act, 1894 — cont. PAriK

Mortgage, Revocation of Certiflciito of ... ... ... ... 931

„ Rules as to Certificate of ... ... ... ... 931

„ Transfer of Interest in ... ... ... ... 931

Name of Ship, Rules as to ... ... ... ... ... 931

National Character ... ... ... ... ... ... 932

„ Debt Commissioners and Savings Banks ... ... 938

Naval Court Abroad, Constitution of ... ... .., ... 976

„ „ Olwtrueting Investigation ... ... ... 970

„ „ Officers' Payment... ... ... ... 977

„ „ Provisions applicable ... ... ... 976

„ ■ „ Referees ... ... ... ... 977

„■ ■ „ Report of Proceedings ... ... ... 976

„ „ Summoning Court ... ... ... 976

„ „ Survey . ... ... ... ... 976

„ OflRcer's Certificate ... ... ... ... ... 934

Navy, Volunteering into ... ... ... ... ... 943

New Certificate, Power to Grant ... ... ... ... 930

„ Registry, Ship altered ... ... ... ... ... 931

„ Registration on Change in Ship ... ... ... ,.. 93'2

Notes, Advance, Payment of Wages ... ... ... ... 937

Oflfence, Abroad ... ... ... ... ... 994,995

„ Entry in Log ... ... ... ... ... 945

,, Prosecution of, in British Possession ... ... ... 998

Offences on Board ... ... ... .,, ... ... 945

Officer, Certificate of Competency ... ... ... ... 934

„ Public, and Legal Proceedinj,s ... ... ... ... 938

Officers, Naval, Certificate of Comjjetency ... ... ... 934

OflSeial Log ... ... ... ... ... ... 946

„ Entry of Collision ... ... ... ... 906

0. in C, Alteration of ... ... ... ... ... 1001

„ and Application of Act to Foreign Ships ... ... 1000

Order for Sale of Ship ... ... ... ... ... 930

„ in Passenger Steamer ... ... ... ... ... 949

„ of Court Transferring Ship ... ... ... ... 930

Owner's Claim to Wreck ... ... ... ... ... 979

Owner and Pilot, Liability ... ... ... ... ... 988

,, Bankruptcy and Mortgage ... ... .. ... 931

„ Beneficial ... ... ... .. ... ... 932

„ British Ship, Qualification of ... ... ... ... 927

<i Managing, Registration of ... ... ... ... 932

„ Medical Expenses ... ... ... ,.. ... 944

„ Mortgagee not treated as ... ... ... ... 931

„ Responsible ... ... ... ... ... ,.. 961

„ Ship, Consolidated Claim ... ... ... ... 978

Part 1, 927; 2, 934; 3, 947, application of, 961, 962; 4, 962;
6, 964 J 6, 973 ; 7, 977 ; 8, 977, extent of, 978 ; 9, 978 ; 10, 984 ;
11,988; 12,992; 13, application, 998, 992; 14,998.
Passage Brokers
Passenger, Proof of, on board Ship

„ Ship, when Exempt from Survey
II Steamer, Survey of ...
II II Keeping Order

Passes, Temporary ...
Pauper Apprentices ...
Payment, Lost Money Order ...
Payment of Wages ... ... ...

960
978
961
948
949
930
935
938
937

1 r

INDEX.

1127

PAflK

... 931
... 931
... 931
... 931
... 932
... 938
... 976
... 97f)
... 977
... 976
... 977
... 976
... 976
... 976
... 934
... 943
... 930
... 931
,.. 932
... 937
994, 995
... 945
... 998
... 946
... 934
... 938
... 934
... 946
... 966
... 1001
... 1000
... 930
... 949
... 930
... 979
... 988
... 931
... 932
... 927
... 932
... 944
... 931
... 961
... 978

, 962;
,984;

960
978
061
948
949
930
935
938
937

Merchiint Shipiiiii}; Act, 1894— raw/.

Pay meut of Wages, Ship's Piiperis

Puimlties, Application of

Penalty engaging .Seamen without License

„ for being on Board Ship -without Permission

,, for Detaining Seamen's Effects ...

„ for Overcharge by Lodging-house Keepers

„ on Enticing Seamen to Desert ...

„ on Forcing Seamen ashore and Leaving Behind

,, on Ma.sters, Destitute Seamen ...

„ Non-compliance with the Eules as to Deceased

Property
„ Sending Unseaworthy Ships to Sea
„ Using Improper Certificate
Pilot Boats and Signals
„ Dues, Kecovery of
„ Fund
„ Licensing
„ Suspending License
Pilotage

„ Certificates of Masters and Mates
„ Compulsory

„ Exemption from Compulsory ...
„ Rates
Ports, Colonial and Foreign, engagement of Seamen
Priority of Mortgages
Procedure on New Eegisti'ation
Proceedings, Suing for Wages ...
Production of Certificate of Competency
Property in Ship, Transmission of
Proof of Passengers on Board ...
Prosecution of Offences

Provisional Certificate, when Ship to be Registered Anew ..,
Provisions and Water

„ as to Apprenticeship to Sea Service
„ Inspection of
Property of Deceased, Dealing with
„ ,, Seamen ...

„ „ left Abroad

„ „ dying at Home ...

„ „ and Board of Trade

„ of Seamen, Forgery ...
„ „ dealing with Unclaimed

Power conferred by Certificate
„ of Colonial Legislatures
,, of Court to Prohibit Transfer of Ship
„ of Sale by Mortgagee ...
„ of Superintendent
Publication of Documents
Punishment, Costs and Wages

„ on sending Unseaworthy Ships to Sea

Rates of Pilotage

„ on Measurement of Tonnage
Rating of Seaman

Receivers of Wreck, Appointment of
Fees
„ Powers of ...

PAOK

• ••

937

997

,998

It*

936

■ ••

945

..4

944

• •■

944

• •«

946

• < •

941

, , ,

941

Seaman's

• It

940

,,,

971

••■

930

...

987

...

986

• •■

988

987

,988

* ••

988

986

-988

• ••

986

• II

988

• i •

985

,,,

988

• • >

936

It .

931

• *•

932

• 1*

939

• ••

935

t • ■

930

• •■

978

.11

992

930

, 931

943

, 951

,,,

936

• 1 .

944

• II

940

• •*

940

1 .*

940

• •1

940

.11

940

• ••

941

• • .

941

, , ,

931

1000,

1001

...

930

...

931

• *>

937

...

1001

...

930

...

971

...

988

...

933

...

936

...

984

...

984

..>

978

i ,

1128

INDEX.

Morchant Shipping Act, \89i—co>it.
Recovery of Pilot Duos
„ of Wages ...
Refusal to Work, Wages
Register British Ship, Obligation to
„ of Deserters
„ of Seamen ...
„ Transferof ...
,, Tonnagf, Rules for ascertaining
Registered Tonnage r.nd Rates
Registration Procedure

„ of Alterations in Ship

Registry Anew when Ship Altered
„ Certificate ...
„ Custody of Certificate
„ in Colonics...
„ of Transfer of Ship or Share ...
„ on Change of Ownership
Reeulation as to Load Line

for Measurement of Ship
,, New Registry on Alteration

to Avoid Collisions...
Ke-hearing of Inquiries
Relief to yeaiian's Family, Reimbursement
ivelll'^tance >r ""'^^es by Money Order ...
Rent, "arehok.' omen's
Repeal of Ac tt-

Requisites for Certificates of Mortgage ...
Re- registration of Abandoned Ship
Return of Master's Certificate .. .
,, or register of Seamen .. .
Returns, Evidence of Alteration

„ Forms of Master's
Restriction on Certificates of Mortgage ..
Revocation of Certificate of Mortgage ...
Royal Navy and Property of Seaman
Rules for ascertaining Measurement of Tonnage ...
„ as to Certificate of Mortgage
,, ivs to Foreign Money
,, as to Name of Ship
Safety, Collisions

„ Valve
Sale by Mortgagee ...
„ Order of Court ...

,, Order for, on Transmission to Unqualified Person
„ Revocation of Certificate of
Sailors' Home and Site
Salvage, Agreement as to
„ Appeal
,, Apportionment of
„ Arbitrators in
„ Assignment of, Sale of
„ Coast Guard Remuneration
„ by H.M.'s Ships
It >, Abroad

.) .1 Bond

,, ,, Enforcement of Bond ...

... 980

... 939

.. 928

... 940

... 946

... 932

... 933

... 928

.. 931

... 931

... 929

... 934

... 930

... 932

... 968

... 933

... 931

... 965
974, 975

... 941

... 938

... 977

... 1002

... 931

... 932

... 974

... 946

... 932

... 931

... 941

... 933

... 931

... 937

... 931

... 964
949, 966

... 931

... 930

... 931

.. 947

... 981

... 982

... 981

... 944

... 984

... 982

... 983

INDEX,

1129

Merchiint Shipping Act, 1894— WH^

Salvage by H.M.'s Ships, False Eepresontations ,
Forgery

,, Detention of Property

„ Disputes

,, Exemption from Stamp Duty ...

,, Jurisdiction of High Court

„ of Cargo or Wreck

„ of Life

„ Receivers of Wreck, Appointment of

,, Sale of Detained Property by Eeceiver

,, Saving Salvage Rights

„ Seaman's Right to Receive

„ Valuation of Property
Savings Bank Accounts

,, Allotment of Wages

„ Expenses of

„ Forgery of Documents ,.,

„ Board of Trade ...

Schedules of Act ... ... ...

Scorbutics, Anti, Supply of, in Colonies...

Seamen, Accommodation

Sea Service, Apprenticeship Regulations

Seamen Carried under Compulsion, Discipline of ,

„ Certificate of Competency

,, Colonial Porta

„ Debt of, Recovery of ...

., Deceased, Deposit

Property of ..

„ Discharge of

„ Discharged Abroad, Certificate ...

,, Destitute, Penalty on Master ...

„ Forcing on Shore

,, Forfeiture of Wages ...

„ Left Abroad

„ License to Supply

,, Lost with Ship, Recovery of Wages

,, Medical Inspection of .. .

„ Money Orders

,, Protection of

„ Rating of

,, Registration of

,, Right to recover Wages and Salvage

„ Wages, Right to, Commences ...
Sea Service Apprenticeship
Share, Transfer of ...
Settlement of Wages ...
Ship, Transfer of, or Share

„ Papers and Payment of W^nges ...
Shipowner, Consolidation of Claim
„ Landing Goods
„ Liability of

Signals of Distress ...

„ Private
Solicitation of Lodging-house Keepers ...
Steerage Passengers, Regulations as to ...

„ „ Right of Contract ...

I'AOB

984
984
981
981
984
984
981
980
984
981
983
938
981
938
937
938
938
938

1002
943
944
935
946
934
936
944
938
940
936
941
941
941
939
941
935
940
943
938
944
936
946
938
938
935
930
937
930
937
978
977
977
966

1000
944
958
960

1130

INDEX.

Murchant Sliipping Act, 1894 — cntit. I'Aob

Stowaways, Penalty on ... ... ... ... ... 946

Suing as to Allotment ofWagcs ... ... ... ... 937

Suits for Wages ... ... ... ... ... ... 939

Summary Conviction, Appeal ... ... ... ... ... 993

„ Jurisdiction Acts ... ... ... ... ... 002

„ Proceedings for Wages ... ... ... ... 939

„ ,, ^limitation of Time ... ... ... 903

,, Remwlies against Deserters ... ... ... ... 945

Superintendents and Payment of Wages ... ... ... 937

,, Assistanco to Apprentice .., ... ... 935

Supplying Seamen, I/iccnso for ... ... ... ... 935

Surveyors ... ... ... ... ... ... ... 933

Survey Court, Appeal to ... ... ... ... ... 048

„ of Emigrant Ship ... ... ... ... ... 949

„ of Passenger Ship — Colonial ... ... ... ... 048

Surveyors of Ships ... ... ... ... ... ... 999

Ti-')er Loading ... ... ... ... ... ... 969

Terms used, Definitions ... ... ... ... ... 1001

Temporary Passes ... ... ... ... ... ... 930

Tonnage Deductions Allowed ... ... ... ... ... 933

„ Levy of Bates ... ... ... ... ... 933

„ Measurement ... ... ... ... ... 933

of Ships, Fixed ... ... ... ... ... 933

Transfer of Interest in Mortgage ... ... ... ... 931

„ of Registry ... ... ... ... ... 932

„ of Ship by Order of Court ... ... ... ... 930

„ „ or Share ... ... ... ... ... 930

„ „ Power of Court to Prohibit ... ... ... 930

Transmission of Certificate of Survey of Passenger Ship ... ... 948

,, of Documents to Registrar by Superintendents ... 947

„ of Property in Ship ... ... ... ... 930

,, and Publication of Documents ... ... ... 1001

Trinity House ... ... ... ... ... ... 987

Trawlers ... ... ... ... ... ... ... 904

Trusts ... ... ... ... ... ... ... 932

Unclaimed Property of Seamen ... ... ... ... 941

„ Wreck, Notice of ... ... ... ... .. 979

Unqualified Person, Transmission to ... ... ... ... 930

Unsafe Ships ... ... ... ... ,., ... 967

„ „ Costs and Damages ... ... ... ,,. 972

„ „ Detaining ... ... ... ... ... 972

Unregistered Ship ... ... ... ... ... ... 928

Unseaworthy Ship, Sending to Sea ... ... ... ... 971

„ „ Survey of ... ... ,.. ... 973

Volunteering into Navy ... ... ... ... ... 943

Voyage, Colonial ... ... ... ... ... ... 948

„ Length ... ... ... ... ... ... 948

Wages, Account of ... ... ... ... ... ... 937

,, Accruing, Imprisonment of Seamen ... .. ... 939

„ Advance Notes ... ... ... ... ... 937

„ Allotment Notes ... ... ... ... ... 937

„ Ascertaining Amount of Forfeiture ... ... ... 946

„ Charge on ... ... ... ... ... ... 939

,, Commencement of Right ... ... ... ... 938

„ Costs ... ... ... ... ... ... 939

„ Deductions from ... ... ... ... ... 937

INDEX.

1131

Merchant Sliipp

iiig Act, \8di~ vont.

I"A(!K

Wmrcs

, Deductions, Payment to Superintendent ...

... 946

»»

Foreign-going Ship ...

... 937

l»

Forfeited for Desertion

... 946

»»

Freight

... 938

Homo-going Ship

... 937

Master's Remedy

... 939

»»

Payment

... 937

»»

,, before Superintendent ...

... 937

„ Ship Papers ...

... 937

i»

Questions aeffeting Forfeiture ...

... 946

»f

Uecovery of, Seaman Lost with Ship

... 940

Romittanee by Money Order

... 938

»)

Restriction on Sale of ...

... 939

»»

Right to Recover

... 938

*»

Seamen Discharged Abroad

... 941

)»

Settlement of...

... 937

Suing on Allotment Note

... 937

Suits for, Restriction on

... 939

•»

Summary Proceedings for

... 939

Superintendent and Payment of

... 937

}}

Time of Payment

... 937

)»

Wreck

... 938

Warehousemen's Protection ...

... 977

„ Rent

.. 977

„ ■ Sale of Goods

... 977

Water, Provisions, as to

... 943

Weights and Measures on Board

... 943

Will of Deceased Seaman

... 940

Witnesses and Wreck

... 979

Wreck

, Admiral Interfering ...

... 979

and Salvage

... 978

„ Definition of

... 978

)»

„ Duty of Receiver

... 978

Board of Trade Purchasing

... 979

Claim of Owner

... 979

Dealing with

... 979

>»

Delivery of Unclaimed

... 979

Disputed Title to Unclaimed ...

... 979

»)

Disposal of Unclaimed

... 979

* . ' »i

Fixamination of Witnesses

... 979

Money Order, Payment Lost Order

... 938

Notice of Unclaimed ...

... 979

Notice to Receiver

... 979

OiFences in Connection with

... 980

Passage over Land to Reach or Assist ...

... 978

Penalty on Taking

... 979

Powers of Receiver

... 978

Provisions as to

... 984

Receiver Absent, Exercise of Power

... 979

Right of Crown

... 979

Sale of, by Receiver ...

... 979

Salvage of ...

... 981

Suppressing Plunder ...

... 978

Valuation of Salvage ...

... 981

Wages of Seamen

... 938

Merchant Shipping Act and Behring Sea Award

... al7

1^:

lit ■

1132

INDEX.

Meredith, C. J., on the Power to Prohibit Sale of Intoxienting Liquors
Message to H. C. of Cnnadii on Dismiswil of Licuteimnt-Guvurnor ...
Military Forces, CommHnd of, in Queoii

„ Services ...
Militia. See Military Forces.

Milk, Frauds in the Supply of, Dominion and Provincial Acts
Mill, John Stuart, quoted
Minerals and Railway Land ...
Mines nnd Minerals l)clonging to Provinces

,, „ and Public Lands

Minister, Duty of, when Executive ...

„ of Agriculture and Patents ...

„ of Finance

„ of Justice and Provincial Acts

„ „ Opinion on Provincial Acts „.

„ of Ontario and Quebec
Ministry and Passing of Disapproved Bin

„ Illegally Dismissed by Lieutenant-Governor ...
Minute liegulations of Trade
Miramichi River Salmon Fishery

Miscellaneous Provisions ...

Misdemeanor, Offence created by Provincial Legislature, a Protest by Dominion
Mis-statements uf FactM on Appeal ...
Money Bill^* and House of Lords in England

„ „ Senate of U.S. ...

,, „ to Originate in House of Commons

„ Borrowing ...

„ Paper, &c. ...

„ Penalty for Selling Liquor

„ Vote, before Passed must be Recommended by Governor-General

„ „ in Provincial ABsenblies ...

Monkswell, Lord, on Dominion Occupying the Ground First
Montserrat, Appeal from ...
Morality, 0£fences against, Enacting Laws as to
Morocco, Appeal from
Mortmain Law of Quebec ...

Municipal Acts, Old

„ By-Laws, force of

„ Institutions and Tax on Dominion, Official ...

,, „ Provincial Ijegislatures, Not

,» „ Sedgewick, J., OP

„ „ Strong,J., on ...

„ „ sub.-sec. 8, sec. 92

„ Law of Quebec ...

„ „ Closing Public Houses on Sunday

„ Prohibition of Sale of Liquor

„ Revenue and Legislation by Canadian Parliament

„ Right to Impose Penalty for Delay ...

„ Revenue, Raising

„ Taxation

Municipalities in Quebec ...

„ Merged, Repeal of By-laws

Municipality, Adopting Canadian Temperance Act

„ Clause Examined by Gwynne, J. S. C,

Murder, Appeal from Conviction for ...
Muscat, Appeal from

I'AdK

, IRl

, 28

\t)

. GO

, 32a
11-)

123

. 409

12!i

543

28, 29

. 152

637

107

.. 430

.. 25

69, 123

.. 74

.. 144

.. 25

.. 147

... 1012

... 106

... 1012

46,238

... 218

... 1075

1,293

... 187

... 166

54, 124, 142, 150, 1069

.., 245

161

... 162
.. 132
77, 126
.. 126
,. 75
.. 201
.. 126
,. 123
,. 178
,. 418
. 1012

INDEX.

1133

PA(1K

Napoleon Coilc in Quebec ...

Natal, Appeal from

... 1012

National Hnd General Concern, Hflo. 01 applies to

... lOf.

„ Defence Works and Dominion

... 486

Naturalization ...

... 100

» Act

. 100, 764, 801

„ and Treaty with U.S.

... 802

n American Cases

... 101

„ by the Provinces

... 101

„ in Canada ...

... 770

Naval Defence, Colonial Act of 1866 ...

... 734

„ Force, Command of, in the Queen

„ Volunteers in the Colonies

... 734

Navigation and Commerce, Old Law ...

... 091

„ and Shipping ...

,, and Trade, Power over, and Chincso Immigration

... 64

„ Laws of Great Britain and the American Colonies

... 64

„ Obstruction to, and Dominion

Negative Decision where Senators Equal

... 16

Negligence of Railway Company a..d Appeal ...

423

Negotiable Instruments, Timber Receipts

... 297

Nevis, Appeal from

... 1012

New Dominion Court, Power to Establish

103

„ Provinces, Forming

. . 3

„ Territory and Senate

665

„ Trial

466, 466

„ „ Ordered in Canada

... 434

New BrnnSWick, and Money Bills

„ „ and Solicitors

721

„ „ Appeal from

396, 1012

„ „ Continuance of Legislature of

... 41

„ „ District for returning M.P.s for H.C. Canada .

„ „ Electoral District ...

„ „ Executive Authority

„ „ Grant to...

634

„ „ Judges and Judicature

... 402

„ „ Lands

... 72

„ „ Limits and Boundary

„ ,, Liquor Legislation Examined

... 194

„ „ ,, License Conviction (Russell's case)

129, 162

„ „ Lumlier Dues

... 536

„ „ Memliers for, in H.C. Canada

„ „ Payment of Interest to

... 633

,, „ Representation in H.C.

„ ,, Seat of Executive Government

... 36

„ „ School Case, Judgment of James, L.J.

... 366

„ „ School Question, Lord Carnarvon

... 336

„ „ Separated from Nova Scotia...

„ „ Senators...

... 13

„ „ Tax on Income

... 75

New Borneo, Appeal from ...

... lOlO

1134

INDFX.

Newfoundland, Appeal from

„ ftiyn

„ Constitutioniil Act, 1842

M Entry into Union

„ History of ... ,,, ,,, ,,.

„ Judicature Act

New Guinea, Appeal from ...
New Hampshire T-aw as to llrcwer'N Liconso ...
Now South Wales, Appoal from

New Zealand, Appeal to P.c. from ...

Niagara Waste Landw, Property in
iV^iger Protectorate, Appeal from

Non- Attendance of Senator
Non-Sectarian 'Schools

North-West Territories (Can.), Appeal to J.C. from

„ „ Jlarrister and SolicitorH

„ „ History of ...

„ „ Justice in. Old Act

„ „ Power to make Ordinances

„ „ Repro.sontatives in H.C.

„ „ Senators

North- Western Provinces (India), Appeal from
NOSCitur a Soeiis Rule
Notes Promissory ...

Notice of Dismissal of Lieutenant-Qovornor
,, of Appeal

„ to various Persons in Special Refcrcnco Cases
" Notwithstanding anything in, &c.," the Phrase
Nova Scotia, Appeal to P.O.

„ Assembly and Punishment for Contempt ...

„ Barristers and Solicitors

„ Baronets

„ Constitution of Legislature of

„ Debt...

„ Districts for returning M.P. for H.C. Canada

„ Executive Authority

, „ B^patriation of Inhabitants

„ Grant to

„ History of

. „ Judicature

„ Limits of

„ Liquor Act

„ Money Bills ...

„ Payment of Interest to ...

„ Prohibition of Liquor Sales

„ Province of the Union ...

„ Representatives in H.C. ...

„ Seal, the

„ Seat of Executive Government

„ Senators

„ Shipping Acts ...

Nuisance, General Law, Power to pass by Dominion
Nyassaland, New Name ...

VMIV

nofi, 1(11 J

... 74
... 00"
...3, 540
(1
... TjOI
... 1012
... 1(10
... 1009
... 1012
... fi24
... 1012
1.^
338-;M2
390, 1012
... 721

... 72i)

... 368

i;t

... 1013
...62,57
... 70
... 2»
482, 1008
... 401
... 44
396, 1013
... 1070
... 721

5
... 41
... 533
... 17
... 31

6
... 534

5
... 402

... 120

... 533

... 103

4
... 543
... 3.5
... 13
... 71
... 104
... 1013

• "

INDEX.

1135

Apt

PAOR

Oath of Allogianco ... ... ... ... ... ... .,, /i37

.. 1. ,. Act ... ... ... ... ... ... 773

I, „ Lieuton.int-Uovol'tiors ... ... ... ... ... 30

Object of 11.N. A. Act ,,. ... ... ... ...1,31,150,203

Obatructiou ill Rivom ... ... ... ... ... ... 73

Occupation of liftndH by Indians ... ... ... ,., ... 100

Offence aguinHt Dominion and Provincial Temperance Acts ... 123, 101

» „ Public Morality ... ... ... ... ... lOO

Offences in the Colonics, Prosecution of, under TVTerchant Shipping
„ on the High Meas, tried under Mereh i.' .'ihipping /ict
tried within Jurisdiction of Admi' My, Oul Act ...
Offender under Behring Sea Award, Arrest of ...
Offenders and King's Commission
Office of Lieutenant-Governor, Dismissal from ...
Officers Appointed by Ontario and Quebec
,, Executive Powers of ...
„ New

,, (Provincial) Salaries ...
„ Transfer of, to Canada
Old Act, Power of Province as to
„ Acts, Appendix A
„ „ Summary of
,, Bankruptcy Livws Examined
„ Boundaries of Quebec
„ Calabar, Appeal to Privy Council ...
„ Provinces of Canada
Ontario, Act imposing Ro'itriction r-n Brewers not ultra vires
„ and Money Bills
„ „ Quebec Clergy Case

„ „ „ Consolidation of ,..

„ „ „ First Meeting of Legislatures

„ „ „ Debt« ...
„ Appeal from

„ Appointment of Att.-General for
„ Assemblies, Yearly Sesfiion of
„ Assets

„ Assignment and Insolvency Act
„ Barrister refused to bti allowed to Practise
„ Company in Liquidation
„ Districts returning M.P. H.C. Canada ...
„ English Solicitors ...
„ Executive Council
„ Grant to ,.,
„ Jurisprudence
„ Legislative Power ...
„ Legislature, Continuance of Laws
„ License Laws
„ Limits

„ Liquor Law of 1890 Examined
„ Members of H.C. Canada
„ Number of Legislative Members

... 998

... 901

... 703

... 023

... 704
28

... S42

... 643

... 641

... 123

... 641
74,637,1043

... 666

... 212

... 304

... 666

... 1014

... 65

... 41

... 275

... 38

... 632

3C6, 1013

... 542

... 40

... 532

... 78

... 420

... 88

... 17

... 721

... 30

... 534

... 309

... 35

... 39

... 1042

... 1064

... 16

... 35

(

1136

INDEX.

Ontario — coiu. vmiv.

„ IVnitontiary ... ... ... ... ,. ... ol.')

„ lioprcsentAtives in Dominion II.C. ... ... ... ... 4

„ Right to Timber growing on Indian Roservos ... ... ... 100

„ Seat of Executive Government ... ... ... ... .35

„ Senators ... ... ... ... ... ... ... 13

„ 8p<!aker of Legialativo Assemlily, Election of ... ... ... 40

„ Supreme Court ... ... ... ... ... ... 306

,, Temperance Act and Canadian, Similarity ... ... ... 153

„ „ „ ,, Dominion Temperance Act ... ... ... 161

„ Validity of Dissent to Acts of .. ... ... ... 42

Opinion of Canadian Minister on Alien.^ holding Land in Manitoba... ... 101

„ „ „ „ on Chinese Immigration ... ... ... 64

„ „ „ „ on Criminal Ijiw ... ... ... ... 107

„ „ „ „ on Disallowance of Provincial Acts ... ... 337

„ „ „ „ on Dominion Disallowing Acts ... 8, 42, 51

„ „ „ ,. on Exclusion of Chinese and Indians Franchise 100

„ „ „ „ on Fines on Judges ... ... ... 394

„ „ „ „ on Fisheries ... ... ... ... 74

„ „ „ „ on Forging Rallot Pajwr .. ... ... 107

„ „ „ „ on Freight Act of Nova Scotia ... ... 71

„ „ „ „ on Incorporation of Association ... ... 42

,, „ „ „ on Languages of Bar ... ... ... 393

„ „ „ „ on Liquor Laws ... ... ... 163,104

,. „ „ „ re Manitoba liar ... ... ... ... 393

„ ,, „ „ on New Brunswick School Question ... ... 33

„ „ „ „ on Nova Scotia Liquor Ijiiw ... ... 126

„ „ „ „ on Paying Fines ... ... ... ... 485

„ „ ., „ on Power of Local Legislature and Fines ... 324

„ ,, „ „ on Provincial Act dealing with Weights, &c. ... 76

„ „ „ on Provincial Bar ... ... 36, 334

„ „ „ „ on Provincial Legislature Passing Act as to

Liquidated Damages ... ... ... 108

, „ on Registration of Births ... ... ... 69

„ „ „ „ on Removal of Lieutenant-Governor.,. ... 28

„ „ „ „ on Rights and Privileges of Provincial As-

semblies ... ... ... 11,12

„ „ „ „ on Salary of Judges ... ... ... 389

„ „ „ „ on Separate Schools ... ... .,. 338

„ „ „ „ on Solemnization of Marriage Laws ... 253,254,255

„ „ „ „ on Stamp Fee ... ... ... ... 120

„ „ „ „ on Tidal River Navigation ... ... ... 71

„ „ „ „ on the Provinces Naturalizing Aliens ... 101

„ „ „ „ as to Sittings of Court and Rules ... ... 325

„ „ Court in Special Roferon^o Casus ... ... ... ... 401

„ ,, Imperial Law Officers on Schools in New Brunswick ... ... 335

Opium, Power to Prohibit Sale of ... ... ... ... ... 199

Oporo, Appeals from ... ... ... ... ... ... 1014

Option, Local, Argument that Canadian Temperance Act was Local... ... 134

Order in Council, allowing App»ials on Conditions ... ... ... 428

„ „ „ and Disallowance of Bill ... ... ... ... 26

„ „ „ giving Effect to the Judgment in the Liquor Prohibition Case 1074

„ „ „ on Liquor Law, 1883 ... ... ... ... 168

„ „ „ Rescinding, allowing Appeal ... ... ... ... 430

Ordinances, Old, of Quebec ,.. ... ... ... ... ... 503

French, of 1731 ... ... ... ... ... 257

„ of Louis XV. Examined ... ... ... ... ... 245

INDKX.

1137

Ottoman Dominions, Appeal from. ISee Turkey
Overlapping uf Legislation (Jonsiderod
Owner of Uritisli ship, tiee Mureliant (Shipping Act.
Oyer and Terminer and Prerogative of Crown ...

I'AflR

210
33

»
II
11
i>
)>
»»
u

129,

Pagodas, Value of ...

Panorn" a, Appeal from

Paper Money

Paragraph i" citizens' insurance Company v. Parsons dissented from

Pardon, I'owor of, Reference to, liy Gwynne, J....

Paris, Treaty of ...

Parisli Courts

„ Schools of New Brunswick
Parliament as a Court of Record

„ of Canada and Deputy Speaker

„ Appropriation of Public Funds ...

.. Composition of

„ Dufferin, Ijord, and

„ Exclusive Authority of ...

„ Laws for Agriculture and Immigration
„ Lieutenant-Governor's Salary
„ Limitation of the Power of
„ „ Payment of Judges

„ •, Privileges, Powers, and Immunities of

„ „ Protection of Fisheries ...

„ I, Provincial Liquor I^iivws

„ ,. liepresentation of New Territories in

„ „ Seiseil of the Jurisdiction

,, „ Western Lakes and

„ „ Yearly Session of

„ Delegation of Powers

„ Kxisting, and Adjustment of Representation ...

„ How Fii'sl Called Together

„ of Ontario, Fii-st

„ of Paris, Jurisprudence of

I, Powers of

„ I'rotuclioii of Persons Publishing Proceedings

Parliamentary Privilege and Libel ...
Parsonages to be Erected, Old Law ...
Particulars absent, doubtful if Leave granted to Appeal ...
Parties, Judicial Committee may direct other I'artius to intervene ...
Party in Power, to them (Joveruor-Ueneral is bound to give his Confidence
Patent Laws a Matter of Policy

Patents ...

Patterson, J., on Parliament of Canada Legislation

Payment of Oovernor-Genenil

„ to Provinces, Form of Payment

Peace, Order, and Good Government, Phrase exiunined ... 61, 151, 10-12, 1007

„ » ,< Competency of Dom. to alter Criminal Liw IT)

II >, ,. Laws for ... ... ... 129,110,1043

a 2340. 4 G

1010

1014

10G(i

l(i9

301

347

1079

1003

4HI)

389

800

394

140

... 799

... 189

... 74

... 12

... 131

. 24

... 22

... 206

... 43

30, 1079

... iiHr,

443, 444

y0,4()«

... 88

... 321

... 534

1138

INDEX.

Peacock, f iv Bnmos, on tho I'hrnso commoncing '•' Notwithstanding '
Pedlars iii'l nnwkcrs. Prohibition of ...
Penalties find Dominion Legislation ...

„ and I'orfoiturcs, British Court and Dominion Act

„ Hard Labour for Soiling Liquor vitliout Liconso

„ for Piraey of Copyright

„ for Soiling Liquor without a License ...

„ Imprisonment, &c., Imposition of

Penalty nddcd to Tax not Interest

„ on Fraudulent Traders in Canada

Penitentiaries

Pensions to Colonial Governors
Perjury, Appeal from Finding of

„ Punishment for, in Dominion
Persia, Appeal from
Persian Gulf. Appe.Tl from ...
Petition, Election, and .ludicinl Coramitteo

„ ofDoleanco

„ of Rights ...

„ Petition to Appeal, Time
Phoenix Ifilind, Appeal from ...
Phrase " All matters," &c., sec. 91 B.N.A. Act, Expla . '

,, commencing "Notwithstanding anything," &c., Sir U.
on ... ... ... ...

,, Dominion Parliament first occupying the ground

„ Dominion's inclosure fenced in

„ Federation Act exhausts whole range of legislative power ...

„ General scheme of the B.N.A. Act

„ In or for a province ...

„ Language read together and modified to agree

,, of Selborno, Lord, on Jurisdiction of Dominion and Peovinces

,, „ on whi\t was clearly local and private

,, Peiice, order, and good government

,, Promotion of public order, safety, anl morals

„ Property of the Dominion

„ Raising of money by any system of taxation, direct or indirect

,, Settlement and Immigration of Land

,, Straining them to their widest conceivable extent

,, Trench upon the exclusive authority of Parliament
Physicians, KnglLsh, in Canada
Pilotage, ''^''i' Merchant Shipping Act.
Plenary Authority bestowed on Provincial Legislatures ...

„ Powers of Ix'gislatures

„ ,, of Provinces

Plenum Dominium in Crown in Indian Ijvnds ...
Poison, T'o'^^er to I'roliibit Sale of
Poisonous l^rugx. Sale of, Consi''.ire<l...
Police "fFifthories ...

„ Magistrate, Appointment of
„ Power wholly with Provinces ...
„ Regulations, Provincial Legislation
., Regulation and Keeping Open on Sundays
Policies "f Life Insurance in the Colonies

„ of Insumnco and Inti'rim Notes
„ Tax on, ?(/^m (,'irf.i ...
Policy ol Great Britain and U.S. before Separation

PA<1K

... 1.5.')
... lOTo
... 08

107

... 141
... 803
126, Ml
... 321

7r,

... 88
108, 545

743

... 415

107

... 1013
... 1013
19, 40,308,313,314
... 408
<i03, 620
... 1008
... 1014
... 1007
Peacock

. 44, 165, 1068
... 147

... H

... 110

... 131

... 124

... 48

... 85

... 01

... t,2

... 97

... 07

■')')

... 107

... 420

... 112
22, .-)0

109, 10711

... 90

... 199

... 133

... 73

... 324

... 188

... 104

... 125

... 839

... 271

... 08

... 04

INDEX.

1139

I'AdK
... hv,

... 1075
... 68
... 107
... 144
... 803
126, 144
... 324
.. 75
... 88

108, 545
... 743
... 415
... 107
... 1013
... 1013

308,313,314
... 408
<i05, o2G
... 1008
... 1014
... 1067
ncock

44, 165, 1068
... 147
... 54
... 110
... 131
... 124
... 48

... 85

... 61

... •12

... 97

... 67

5.')

... HIT

... 4.>0

... 112
22, 50

109, 1071)
... 96
... 199
... 133
... 73
... 324
... 188
... 104
... 125
... 8.'i9
... 271

68
... 64

Political Armngements included in Trade and Commerce

„ Friends and Gnvcrnor-Ocncrnl

„ Organization and Sovereignty
Poor Kate, Special Leave allowed
Population and Represcntjition in H. of C.

Port Phillip, Old

Possessions of the Queen and her Prerogative ...
Postal Service

„ „ in the Dominion

Power Distrilnition of

„ Executive, of Canada ...

,, Legislative, Ontario ...

„ ,, Quebec ...

,, Negative Restriction

„ of Canadian Parliament

„ of Colonial Legislatures

„ of Dominion

„ ,, and Provinces Prohibiting a Trade ...

„ of Parliament

„ of Governor-General ...

„ of H.C. England and Colonial Ijcgislaturcs

„ of Lieutenant-Governors of Quebec and Ontiirio ...

„ of Municipalities

„ of Provinces, Lord Selborne on

„ of Provincial Hailway to Cro.is Dominion Railway

„ „ Legislature

„ of Quebec Legislatare, not merely a nudo Power ..

„ of Sovereign and Governor

„ Regulation and Prohibition
Practice, Canadian Solicitors Practising in England
„ Suspending from, Advocates ...
,, Words as to Education
Precedence of Counsel, The Bitonnier
„ of Queen's Counsel

Pre-eminance of Dominion ...

Pre-existing Powers of Governor and

Ontario Pa'scrved
Preference by Insolvents, Act as to ...

„ Payments to Crown and l-'rcnch Law

Prerogative and C'ommissions of Oyer and Terminer
,, Allowing an Appeal

of Crown

of the Crown and Election Petitions
„ and Criminal Ca.ses ...

„ to Appeal ...

ofMercy
of the Queen in each Province

„ when not Limited ...

Power and Lieutenant-Governor ...

to Deprive the Crown of its, the Legislation must bo Irrc
sistiblo

Preservation of Good Order, Provinces may make Reasonable Police Regu-
lations 161, 1043

Presumptions, none that Dom. Leg. has Exceeded its Powers ... ... 19

Princo Edward ii<h»n<l, Appeal to P.c. ... ... ... 396, 1013

„ ,. Act Disallowed .. ... ... ... 71

4 0 2

n
M
•I
H
M
M
»
M
W

PAGE
... 55

... 30

... 27

... 431

... 23

... 1009

... 31

... 69

... 486

... 43

... 35

... 60

11,822

.. 22, 71, 1079

... 152

68, 1075

... 43

13,1079

... 32

202, 1042, 1075

... 44

233

... 10
61, 1075
719,821
414,420
... 370

7,11,35

261, 1042
Lieutenant-Governor of Quel)ee and

... 32

... 33

34, 307,410

284, 309, 409

... 40

34, 109, 409

... 476

... 327

... 31

... 28

1140

INDEX.

Prince Edward islimd — mnt.

„ „ „ Admitted into the Union

„ „ „ Alewivcs Fisherios

„ „ „ Bfirristors and Solicitors...

„ „ „ History

„ „ „ IiitcstHto's Estate ... ' ...

„ „ „ Judicature

„ „ „ Public School Act

„ „ „ Eepresontativu in H.C. ...

„ „ „ Senators

Prince of Wales Island, Appeal from
Principle of Canadian Constitution

„ of Construction Pointed out in Parsons' Case ..

Priority of Crown over other Simple Contract Creditors ...
Prisoner Appealing, and Kelease of same
Prisoners, Kemoval of, from one Colony to another
Prisons, in sec. 91
Printed Appeal Cases. &f note
Private anf> Local Act, what necessary to show by Dominion

„ Land and Inspector of Fishing
Privileged Communications, Special Lciive to Appeal
Privileges as Regards Education

I'AflE

<j
... 74
... 721

6
... 668
... 402
... 338

. . 1013

1
... 131
31, 293
... 417
... 841
... 123
.,. 1041
... 43
... 74
436, 46G
... 332

Immunities, and Powers of Canadian Parliament not to Exceed

those of Imperial Parliament ... ... ... \\,b&o

,, of Assembly, Quebec ... ... ... ... 12,36

,, of Canadian Parliament ... ... ... ... ... 822

„ of Crown to Prior Payment ... ... ... 288,293

,, of Dominion Parliament compared with Victorian Privileges ... 12

„ of Nova Scotia Assembly ... ... ... ... ... 1079

„ to U.S. Citizens ... ... ... ... ... ... 806

Privy Council, Appeal to ... ... ... ... ...396,891,1008

„ ,, Damages ... ... ... ... ... ... 440

„ „ Leave to Appeal to ... ... ... 144, 416 r^ se^.

„ „ of Canada, Chosen by Governor-General ... ... ... 8

,, „ See Spicial Leave in Appeals.

Prize Courts, Establishment of ... ... ... ... ... 926

Probate Courts Judges .. ... ... ... ... ... 389

Probates Granted in British Possessions ... ... ... ... 903

,, in Newfoundland, Old Act ... ... ... ... ... 630

,, Production of, in England ... ... ... ... ... 839

Procedure Code, Main Principle of ... ... ... ... ... 291

„ Jurisdiction in the Provinces ... ... ... ... 308

Proceedings in Local Parliaments, Protection of Publishers of .. ... 12

Proclamations after Union ... ... ... ... ... ... 541

„ Ix'fore Union Saved ... ... ... ... ... 644

„ Declaring Union ... ... ... ... ... 3

Product of Tax ... ... ... 1.55

Professional Practice in Canada ... ... ... ... ... 420

Profit and Loss, Meaning of ... ... ... ... ... ... 75

Prohibition 42, 1042, 1075

„ Act, in Russell c. Reg. ... ... ... ... ... 148

„ Against Hearing Action ... ... ... ... ... 161

„ and Licensing, Meaning of each ... ... ... ... 190

„ and Regulation... ... ... ... ... ... 1075

„ as to Liquor Sales in Nova Scotia, Quebec, Throe Rivers, Upper

Canada ... ... ... ... ... ... 163

„ by Provinces ... ... ... ... ... ... 68

INDEX.

1141

leges

PAnK
<J
... 74
... 721
6
... 668
... 402
... 338
4
... 13
. . 1013
1
... 131
31, 293
... 417
... 841
... 123
... 1041
... 43
... 74
436, 466
... 332
to Exceed

11,665

12, 36

... 822

288, 293

1079

... 806

.. 396,891, 1008

... 440

144, 416 et seq.

.. 926
... 389
... 903
... — 630

... 839
... 291
... 308
12
... 644
... 644
3
... 156
... 420

...42, 1042, 1076
... 1-48
• ■■ 161
... 190
... 1075

163
68

»»
II
II
i>

Rivers, Upper

Prohibition— co»<. '"'

„ Crtses in U.S. ...

„ „ no Guide for Canada .. .

„ Catching Seals, Argument

Conditional

Liquor Case

of all Liquor Traffic

of Manufacture, Strong, C..J.

of Printing English Copyright Books in Canada
,, of Sale of Goods

Prohibitory Mejisures, Ratepayers deciding

Promissory Notes...

Promotion of Eailway ... ... ... ... ... 126,

,, of Temperance ...

Proof >^' J'rovincinl Tax

Properties, Assets lietween Upper and Lower Canada Settled by Arliitnitiou
Property and Civil Rights, sec. 92

„ „ „ and Sale of Liquor ...

„ „ „ Contrast with Patent Legislation

„ „ „ Controlled by Regulation of Commerce

„ „ ,, Examined .. ... ••■ 63,

„ „ „ Explained ... ... ••• '33,

„ „ „ in Queliec, Rules of French Law

,, and Dominion Legislation ...
,j and Life, Provinces can Legislate to Protect

„ as Distinct from Regulation of Fishing

„ Disqualification of Senator ...

„ in British Possession and Finance Act

„ in Subject, and Power to liegislate for

„ of Fish in Great Lakes

„ of. Phrase Explained

„ Public Debt and ...
„ Taxation by Municipalities ...

„ Transferred from Provinces to Canada

Propositions of Confederation
Prosecuting Appeal, Time ...

Prosecution of Oflfences under Merchant Shipping Act iu the Colonies
Protection of Salmon Fishings

„ in the Colonies of Copyrighted AVorks

Protestant Clergy, Support of
Protestants and Education ...
Province and Turnpike Road Trust ...
Provinces and Crown

„ „ Dominion, Beneficial Interest of the Crown in all Lands within

its Boundaries
„ ,, „ Co-ordinate Authority ... .., 1,

„ „ ,, Distribution of Powers between

„ ,, „ Double Legislation ... ... ... 60,

,, ,, Incorporating the same kind of Company

„ „ Marriage and Divorce

„ Land Companies

„ Land for Agriculture and Immigration

„ Liquor Licenses, Nova Scotia Act

,, Prerogative of Queen ... ... ... ... 1.

„ Naturalizjition
Autonomy of .. ... . . ... ... 1, 31;

Census of, to be distinguished

»»
It
»
It
II
II
11

200

166

162

164

178

225

149

156

545

257

151

183

238

140

106

926

486

321

410

998

863

559

332

529

98
,293

43
165

48
243
389
126
293
101
293
7

PipfPOTW

1142

INDEX.

Provinces— fow'. '■^'"■'

„ Common Interest ... ... ,,. ... ... 1> '-iuy

„ Creiiting Courts ... ... ... ... ... ... li-'*

Credit of ... 1^3

„ Disullowance of Acts .. ... ... ... ... ^

„ Dominion and Municipiil Institutions, Rights debated ... ... I'iS

„ Executive Power ... ... ... ... ... •■• '■^7

„ Exelusivi! Powers in, Lord Selborne ... ... ... ... tl

„ Fidonited with Common Independent Interest ... ... 1, 29;{

„ Forming New ... ... ... ... ... ••■ 3

„ in Canada, Esttiblishnient of ... ... . . ... 701)

„ Independence of ... ... ... ... .. 1,2!)3

„ Legi.slate as to Dangerous Establisliment ... ... ... 104

„ Legislative Assembly, Summoning ... ... ... ... 38

„ Legislature, Power to Amend ... ... ... ... Ill

„ Privileges of Assembly ... ' ... ... ... 36,1079

„ " Property of," Explained ... ... ... ... ... 97

„ Eepealing Act affecting two ... ... ... ... 273

„ Territories outside ... ... ... ... ... 3

Provincial .'^ct and Dominion Repeal of same ... .. .. ... 1070

„ and Dominion Character of Lieutenant-Governor clashing ... 42

„ Act and a Local matter ... ... ... ... ... 157

„ „ and Local Associations ... ... ... 44,330

,1 „ to carry out Dominion Act, Validity of .. ... ... G.5

,1 „ and Obstruction to Navigation ... ... ... ... 06

„ ,, as to Rivilway beyond Boundary ... ... 67,22;')

„ „ Repeal of ... ... ... ... .. 1042, 1070

„ Acts and Imperial Acts ... ... ... .., ... 32

„ ,, and Governor-General ... ... . . ... 51

I, „ declared ultra vires ... ... ... ... ... 33

„ „ Validity of ... ... ... ... ... ... 48

I, Bankruptcy Law... ... ... ... ... ... 78

„ Bar ... ... ... ... ... ... ... 393

„ Bills, Provincial Associations created by ... ... ... 42

'„ Bills and non-assent ... ... ... ... ...41,42

„ Company, Incorporated by Dominion ... ... ... 45

„ Companies, Incorporation of ... ... ... ... 234

„ Consolidated Revenue Fund ... ... ... ... 536

„ Constitutions ... ... ... ... ... ... 27

„ Courts ... ... ... ... ... ... .. 308

„ Criminal Law and Liquor Law.s ... ... ... ... 134

„ Debts and Assets ,. . ... ... ... ... ... 520

„ Districts for Election of Members of H.C. ... ... ... 17

„ Ferries ... ... ... ... ... ... ... 74

„ Governments not subordinate to Dominion .. ... 31,293

I, „ Right of Payment before other Creditors ... 31, 293

,1 Jurisdiction, exclusively assigned ... ... ... ... 20

I, „ over Liquor Laws ... ... ... 162,1042

„ Laws and Dominion Laws ... ... ... 235,1042,1064

>i ,, „ ,, Remedial Acts ... ... ... ... 334

,1 „ „ Election Petitions, Hearing ... ... 40,308

I, „ „ Insult to Members of House of Assembly ... ... 1079

>t )i » Sale or Storage of Gunpowder ... ... ... 104

„ „ Insalubrious Establishment, Power to Regulate ... ... 104

II „ of Bankruptcy, Validity of ... ... ... ... 303

,. ,, Limiting Licenses ... ... ... ... ... 00

„ „ Marriage Licenses ... ... ... ... ... 256

nijHiiiiMytfHMi

■MM

INDEX.

1143

Provincial— co»i!.

„ Laws, Obstruction of River...
I, ,, Protection of Fisheries

,t „ Riiilway Company

PAGE

GO, 71

.. 74

225,329

„ Sanctioned by Dominion Law, not a Delegation of Powers ... 103
Legislation ... ... ... ... .. 104, 132

II „ and Appeal

II „ ,, creating Offences Mi.sdenieanor8

„ ,, „ Criminul Law ... ... ... •••

„ ,, ,, Dominion ... ... ... . .

„ ,, „ Forgery ...

„ „ „ Imperial Legislation

„ „ „ Prohibition of Sale of Liquor ...

„ „ „ Salmon Fishing

„ „ as to Fines and Forfeitures

., „ for Education ...

„ ,, to Prevent Fraud in Trade, and Danger to Life or

Property ...

,, „ where no Dominion Legislation ...

„ Legislative Power strictly Limited ...

„ Legislatures and French and English Languages

„ „ ,, Imperial Power

„ „ „ Mandates from Imperial Parliament ...

„ „ „ Eecovory of Debts ...

„ „ Delegating Authority to Commissioners

,, ,, „ ,, Municipalities

„ „ have a concurrent Power in Taxation

,, „ Sale of Arms ...

„ „ Status of

„ „ Their True Character ...

,, License for Gun ...

„ Liquor Law and Canadian Temperance Act, in same Province

„ Olyects, Boom in Kiver

,, ,, and Incorporation of Companies

„ Officers' Salary ...

„ Plenary Powers ...

„ Power of Taxing Deeds

,, ,, to Repeal Acts

,, ,, to Tax Capital of Biinks

„ Powers, How to Examine ...

„ „ not to bo Absorbed by Dominion

„ „ to Revive Old Acts...

under .sees. 13 & 10, 92

„ Property

„ Public Debts, Interest on ...

„ Purposes, Taxation

„ Railway

„ „ becoming a Dominion Railway

„ Revenues, Riisiug

„ Reformatories and Prisons ...

„ Representation in H. of C, Adjusted every Ten Years ..

„ Reptal of Old Act

•„ Revenue

„ Right to Crown Lands in Province ...

„ Tax on Dominion Officer ...
Provision "f Parliament of Canaila apiilyiiig to Legislatures of the Provinces

,, made for Admitting other Provinces...

405
108
107
210
107
330
IGl
72
108
832

lOG
44
... 384
... 542
... 50
... 142
... 78
... 138
... 70
... 53
... 133
1, 21)3
... 112
... 11(1
... 101
CO
2
... 123
... 293
... 120
384, 1043
... 75
... 50
... 48
74, 1042
4G, 1069
... 533
... 485
... 113
... 225
... Ill
... 126
... 123
... 23
... 280
... 122
... 94
... 70
41
2, 799

jjik«jVW?«8»Wt?Ji«HW«»!«i5iitii;»5mj«Hf!

111.4

INDEX.

Provision— to«<.

„ SimilHr, in Provincial nnd Dominion Act

Proviso waving I'rorogative ...
Public and Uight to Fish

„ Danger and Carriage of Arms ...

„ Debt and Property

„ Funds and Appropriation by Parliament,..

„ Harbonrs, Fish in

„ Lands, Management and .Sale of

,f „ of Canada and Taxation

„ „ .Sale of

„ Legitilation and Provincial distinguished...

„ Money in Banks

„ Morality, General Laws on this subject in Dominion

,, School Act of Manitoba

„ , „ analysed

„ Service, Provincial Revenue Fund
„ Works Loan of Canada
„ Wrongs and Nuistinees, Power to pass Laws
Punishineilt by Fine, Penalty, or Imprisonment
for Contempt by Assembly
for Selling without License
of a Criminal Nature for Breach of Liquor Laws
on Prisoners tried in Colonial Courts
Wrong, inflicted. Appeal
Purchase uf >>» island. Provincial or Dominion Act
„ of Indians' Land, Requisites...

I'AdK

• ..

... 83

. ..

... 73

. ..

... 146

. ..

... 52

. . .

... 486

... 73

. . .

... 123

... 535

. «.

... 123

. ..

... 72

31, 283, 293

... 106

. ..

... 333

... 380

. •»

... 530

• ••

... 809

. I .

62, 104

... 324

36, 1079

. ..

... 120

aws

... 102

... 820

... 414

... 307

... 90

Qualifications of Legislative Councilloi-s of Quebec

„ of Senator ...

... 13

Quarantine and Marine Hospitals

...

Quebec ii I'i'ovi nee ...

...

>»

and English Solicitors , .

...

721

and Ontario Records ...

545

„ Consolidation of ...

... 1 .

„ Use of Old Names in

Documents

... 544

Debt

... ..

... 632

Appointment of Att.-Gen. for ...

542

Appeal to P.C. from ...

...

397, 1013

Assets

... ..

.532

Assembly, Constitution of

... ..

„ and Punishment for Contempt

»i

Continuance of I^ogislative Lvws

...

Conquest of...

... ..

Counsel, the BAtonnior

...

District for returning M.P., H.C.

Canada

Duration of Legislative Assembly

... 39

Election of Speaker of liCgislative Assembly

... 40

Executive Council ...

... ..

... 30

»>

First Meeting of Legislature of

...

^Ma

MMM

iriril

INDEX.

111.5

ftuebec— p"»'.

„ French Languago

„ History of ...

,, Judges

„ Ijftw and Company Incorporation

„ „ of Municipalities

„ „ Prerogative Questions ...

„ Legislative Council of

„ ,, Councillors, Qualifications of

„ Legislature, Voting in

,, ,, Power ...

„ Limits

„ Liquor Laws

„ Local and Private Act

„ Money Bills

„ Penitentiary

„ Priority of Crown in, as to Simple Contract ]Jobts

„ Prohibition of Liquor Sales

„ Quorumof Legislative Council...

„ Representatives in Dom. H.C. .. ... ... ...

„ Resolutions...

„ Seat of Executive Government...

„ Senators

„ Speaker of Ijegislative Council...

„ Tax on Bank's Goods

,, Taxes

„ „ Ontario Funds .. .

„ Townships ...

„ Vacancy in place of Councillor of

„ Voting in Legislature

„ Yearly Assembly
Queen and Governor-General

„ and Her Heirs, Act extends to ...

„ and Lieutenant-Governor

„ Provisions as to, in Dominion Act

„ Senate, and House of Commons, Canada, to make Laws for Peace,
Order, and Good Government

„ the. Executive Authority over Canada
Queen's Counsel and Precedence

„ Direction Necessary to the Summoning of Additional Senators

„ Privy Council of Canada

„ Representative, the Lieutenant-Governor is

Queensland ioo9-

Question as to Qualifications or Vacancy in Office of a Quebec Councillor to
bo heard by Legislative Council ...
„ between Governor-General and Lieutenant-Governor, Proper Tribunal

to Decide
„ to be considered l)etween Dominion and Provincial Acts ,
„ to Judges in Liqucr Prohibition Case and Answers of P.C,
Quorum of House of Commons

„ Legislative Council, Quebec ...
„ of Senate...

PAUB

4
... 06

... 3!)3

... 233

... 201

... 40

... 36

... 37

.. 37

... 35

... 163

... 43

... 41

... 51.')

31,283,203

... 163

... 37

... 4, 16

... 746

... 36

... 13

... 37

... 68

... 32

... 122

... 646

... 37

... 40

7,36

1013

29
132, 136
163, 1074
... 23
... 37
... 16

^tiiitNi;i$^M««WWiW«<

1116

INDEX.

I'AdK

Railways, Mines, and Minerals ... ... ... ... ... 123

„ and Steamships ... ... ... ... ... ... 221

„ becoming Dominion's ... ... ... ... ... HI

„ on Foreshore ... ... ... ... ... ... 300

„ beyond Province .. ... ... .., .., 67,225

Raising Money by any Means ... ... ... ... ... 06

,, of Money in Dominion and Provinces ... ... ... ... 48

,, Revenue by Licenses ... ... ... .. ... 126

,, „ Provincial Powers ... ... ... ... 67,225

Rangoon, Appeal from. ,Sc," Burmnh ... ... ... ... 1011

Ratepayers '"^rtnctioning License ... ... ... ... ... 102

Ratification of Colonial Act ... ... ,.. ... ... 410

Rebellion in Lower Canada ... ... ... ... ... ... 4

Recall of Governor by the Crown ... ... ... ... ... 28

Receipts, Warehouse, see. 19, sub-sec. 15 ... ... ... 73, 290

Record, Court of, Parliament ... ... ... ... 36,107!)

Records, Delivery to Quebec or Onttirio .. ... ... ... 545

„ of Canada and Reserved Bills ... ... ... ... 27

Red River Settlement, Rupert's Land .. . ... ... ... ... 5

Reduction of Representation in H. of C. ... ... ... ... 24

Reference, Special, to Courts ... ... ... ... ... 401

„ of Constitutional Questions, Supremo Court ... ... ... 31)5

Referring Case back to Court below ... .. ... ... ... 40(i

Reformatories iind Prisons ... ... ... ... ... 123

Registrar of Colonial Court, Duty to send Record on Appeal ... ... 1008

Registration of Foreign Degrees ... ... ... ... ... 880

„ Paper, Defacing, Provincial Law... ... ... ... 107

Registry of ships in the Colonics. See Merchant Shipping Act.

Regulate 11 Trade, Extent of Power ... ... ... ... ... 1075

Regfulation of Dominion Licenses ... ... ... .,, ... 145

„ and Acts, 1883-4 ... ... ... ... ... 148

„ assumes Conservation ... ... ... ... 1069,1075

„ and Prohibition Cases in U.S. ... ... ... ... 58

„ ,, not Synonymous ... ... ... ... 55

„ of Commerce, used Imperially ... ... ... ... 591

„ of Trade and Commerce ... ... ... ... 52,151

„ „ and Commerce, Warehouse Receipts ... ... 75

„ „ and Shop Licenses ... ... ... ... 150

I, Provincial Taxation ... .., ... ... ... 53

„ Sale of Intoxicating Liquors, 2nd Part of Canadian Act ... 130

U.S. ... ... ... ... ... ... ... 66

Rejected liills, Re-introduction of ... ... ... ... ... 42

Religious Kights, History of ... ... ... 4,569,685,695,710

„ Teaching and Denominational ... ... ... ... 303

Remedial Laws, in Education Questions, by Dominion Parliament ... 334

Removal from Office of Lieutenant Qovprnor ... ... ... ... 29

,, of Criminal Lunatics ... ... ... ... ... 841

„ of a Member by the Legislature of New Brunswick ... ... 5

„ of Prisoner ... ... ... ... .. ... 758

INDEX.

1117

I'AdK

... 123
... 221
... Ill
... 300

67, 22.5
... 06
... 48
... 120

67, 22.5
... 1011
... 162
... 410
4
... 28

75, 206
36, 1070
... 545
... 27
5
... 24
... 401
... 305
... 400
... 123
... 837
... 1008
... 880
... 107

... 1075

... 145

... 148

1069, 1075

... 58

... 55

... 591

52, 151

... 75

... 150

... 130

... 66

... 42

585,695,710

... 303

... 334

... 29

... 841

... 758

Removal— t'u/t^

„ of Privy Councillor

„ of .Spoivker of II.U. Ciiimilii

Renunciation i^'f (->i'>K>iial Nutioiiaiity

Repeal of Acts by I'roviiiciiil Lugl.sliituro
„ of Acts, Strong, J., oil
,, „ KtHjuisite

„ of lty-liiw8 ...

of I'liit-iof U.N.A. Act, 1807 ...
,, of Provincial Act
,, of Provincial Acts by Dominion
Representation H- of C. Ailjustwl every 'I'cn Years
), IncrciLso of, in 11. of U.

„ of Now Territories in I'arliamcnt of Caimila

, of the Provinces in tlio Senate

Representative Government, Earl Grey on ...

,, of the Crown, Lieutenant Governor

Reprint of English Books in Canada ...
Repugnancy of Provincial Act
ReC[Uisite8 for Dismissal of Jjieutenant-Oovornor
Rescinding O. in C. allowing Appeal ...

„ Order for Special Leave when Appeal not procc^eded
Reserved Kill, Old Procedure

„ Bills for Queen's Assent

Reserves, Indian ...

Residence constituting Domicile for Divorce ...
Residential Disqualilication of Senator
Resignation of Ministry if Disapprove of Bill

,, ot Senator

Respondents, Direction that Others may Interveiio
Restraint on Sale of Liquor
Restrictioa of the Liquor Traffic
,, on Brewers

„ of Chinese Immigration ...

„ on Generality of Terras ...

Retail and Commerce License, &c.
„ and Wholesale

Returning Pugitive

Reunited Canada ...
Revenue and Appropriation .. .
,, and Duties

,, Canadian Temperance Act not a Piscal Law
„ from Saloons
„ Fund, Creation of ...
,, ,, of Provinces ...

„■ Eaising, for Provincial Purposes
„ Vested in Crown
Rights and Privileges as regards Education

„ „ of Denominational Schools at the Union

„ Immunities, and Privileges of Assembly ...
,, in Schools prejudicially Atfoctcd
„ of Appeal, Summary of Cases ...
,, of Indians ...
„ of Unity of Empire Children ...
Ritchie, C.J., Contrasts Federation of Canaelu with U.S. ...
„ in Severn y. The Queen

„ ou Interest

rAciE
8

10
... 100

... 360, 384, 1043
... 100
93, 1043
... 120

745

739, 1013
... 1070
... 23
... 24

13
... 28

... 198, 739, 1043

... 28

... 430

with ... 122

... 580

... 20

... 448

... 42

... 15

... 95

... 102

... 100

•Jo

... 03

... 160
... 151
... 828
... 003
... 25
483,484
... 132
.. 150
.. 483

636

... 113
... 295
... 332
... 347
36, 1079

375

... 410

4
... 60
... 52

jjpwi^tJPifeHPTOffwwiispjsaww'P^

1148

INDEX.

Ritchie, ('.F.—whc. i-auh

,, on liiuuls Proporty of Province ,. ... ... ... Ti

II on PuwoFN of Dominion to iScttlu Atliiira uf Initulvcnt liiink ... 86

II on Prohiiiition ... ... ,,. ... ... ;J07

River Act iiilowinp Obsfniction to Niiviffiition ... ., ,,, ... 66

Rivers ill Provinces imd Fish ... ... ... ... ... 72

,, 01)8triiotii)ii ill ... ... ... ... ... ... 73

Rod '''ixhiiig and Dominion License ... ... .,, ... ... 74

RodOStO, Appixil from ... ... ... ... ... ... lOU

Rodrignes .■ ... ... ... .■• ... ... 1013

Roman Ciitliolio and Kilucntion ... ... ... ... ... 3.'I2

,, ,, and Nfw Jtruiiswii'k School Act ... ... ... 338

M ., from tho Con(|iii'8t of Qiif'l)ce Free ... ... ... 4

M „ Iteligious Rights, History of ... ... ... ... 4

., ., Scliool in St. John's ... ... ... ... ... 318

Royal Assent and Reserved Hills ... ... ... ... ... 26

„ to Hills ... ... ... ... ... ... 26

„ to II. of C. Money Votes ... ... ... ... 23

Royalist ill Caiiadu ... ... ... ... ... ... 4

Royalties and Escheats ... ... ... ... ... ... 99

„ and Provincial Right ... ... ... ... 409, 613, al7

Rule Ejusdem Generis ... ... ... ... ... ... 32

Rules of Colonial Admiralty Courts ... ... ... ... ... 803

„ to bo oliserved in Sanctioning Provincial Acts ... ... ... 31

Rupert's Land lioan ... ... .. ... ... ... 7C2

„ into Union ... ... ... ... ... ... 547

,, Part of North- West Territories ... ... ... ... 5

Revoking Letters Patent ... ... ... ... ... ... 4G0

Safety ftnd Order

St. Andrew Roman Catholic School ...

St. Christopher, Appeal from

St. Helena, Appeal from

St. John's Ronian Catholic School

St. Lucia, Appeal from

St. Stephen's Roman Catholic School...

St. Vincent, Appeal from ...

Salary of Governor-Genoinil ...

„ of Judges ...

„ „ Additions to

,, of Lieutenant- Governor

„ of Provincial Officers
Sale of Arms, Prohil'iting
„ of Goods, Prohibiting ...
„ of Liquor, Provincial Prohibition ...
„ or Storage of Gunpowder, and Provincial Livw
Salmon Fishing ...
Saloon, Hec. 92

„ Licenses by Dominion
Salvage for Saving Life

... 133

... 348

... 1013

... 348

... 1013

... 348

... 1013

... 485

... 394

... ;>••;)
•i

... i7H

162, 1042

... 104

... 72

... 126

... 145

... 980

INDEX.

1119

I'AlIK

;i07

lOU

1013

3S2

338

(

318

■25

i>'J

,517

803
I'll
762
.347
5
4G0

133

348
1013
1013

348
1013

485

;i'i4

,.. t7l»

32, 1042

... 104

... 72

,.. 126

.. 14a

.. 980

Sanction, Inux'i'iiilt tf) (^'linnilii Act

„ of OrdinancuH

„ of Uovenior-Oenorul to UHIh he CoimiiltTd UncoiiKititutioDitl

Sanctioning Provincial Acts. Huleo ...

Santa Cruz iHliitid, Appuiii from

Sarawak (Hornco) Ai>|il'h1 from
Saving I 'ifi', Hal VHgu for

Scheme of K'N.A. Act ... ... ... ... 168, lo

„ of Canada Ti'iiiperanco Act, 1880

„ of Nocs. 91 & 92, Lord Hfllxjrtiuon ... ... ...

Schools ActN of Manitoba Compared ...
„ and the JSlblo

„ Prott'Htant, Roman Catholic, and UiHMcntiunt
Scott Act, UuNHcU's CaHo

Sea ('•»uitH

Seal, flroat, of Qiiobec, when UHcd

,, „ of Canada

„ ,, of Four ProvinccH

,, „ of Nova Hcotift ...

Seamen, I^'nga^emunt of, in Colonial I'ortH

Seas, Azoff, Adriatic, Kguan or lilack Sua, Mediterranean, Appeal from
Seat of Uovornment, Canada ...
Seats of Executive UovernmentN
Secretary of State, and Advice to Governor-General

Sectarian Majority

„ >SchoolH, Iliiitory of, in Canada

„ Teaching

Security for Costs in I'.C. ...

„ „ in Indian Courts ...

„ „ in Uutario

„ „ in Quebec

„ ,, in the Court below and Appeal

Sedgewick, J'> on Hcope of Words "Municipal Institutions "
„ on the Union ... ... ...

Seignorial Tenures Abolished
Seizing Salaries of Dominion UlHcials ...
Seizure of Ship under Ifchring Sea Award
Selbom^, Earl, on Direct and Indirect Taxation
„ ,, on Duty of Judges

I, ,, on Jurisdiction of Dominion and Provincial

„ „ on sec. 92, sub. -sec. 16

„ „ on sees. 102 and 126 ...

„ „ on Phrase, Generally all matters of a local or priviito nature

„ „ on sees. 91 and 92

Selection of Judges...

Self Government and Sovereignty
Selling i"'d Keeping Open ...

„ Liquor without a Liconfse

„ Liquor on the Premises
Senate and Money Bills

„ and New Territory ...

„ H.C. and Members, Privileges, Powers, and Immunities Defined

„ Representatives in, from Ontario, Quebec, and Maritime Provinces

„ Questions oh to Qualification of Senator, or as to Vacancy ...

„ Quorum

„ Vacancy in, how filled

PAdK

... 03

... 43

... r,\

.. 1014
... 1013
... 980
42, 1070
... 1004
... 44
... 377
3/) I,. 354
... 333
... 188
... 71
36, 37
... 543
... 643
... 543
... 930
... 1014
11
... 35
... 43
... 363
... 341
... 350
... 122
... 436
... 400
... 397
... 436
... 187
... 180
4
... 70
... 912
... 119
... 390
48
85, 330
... 636
44
...19,43
391, 393
... 27
... 125
... 123
... 158
... 25
... 555
11, 1079
13
16
16
... 16

lHi;i;iii':!Tri3<!>"-;'''i"--''i-'!-i*i

1150

INDEX.

Senate — ^"w'- t»aok

,, Voting in ... .,, ... ... ... ... ... 10

Senator Ago of ... ... ... ... ... ... ... is

„ Appointed for Life ... ... ... ... ... ... lH

Senators mu\ legislative Councillors of Queboc, Samo Qunliflcntion ... 37

„ and Legislative Councillors, Nova Scotia and Now Brunswick ... 6.17

„ Disqualification of ... ... ... ... ... ... 1.5

„ First, were Summoned by Queen's Warrant ... ... ... 14

„ for Qucl)ec, Property Qunlirication ... ... ... ... 14

„ How Summoned ... ... ... .. ... ... 14

„ Nominated for Life ... ... ... ... ... 15

„ Numl)erof... ... ... ... ... ... ... 12

„ of British Columbia ... ... ... ... ... 13

„ of Manitoba ... ... ... ... ... ... 13

,. of New Brunswick ... ... ... ... ,.. ... 13

„ of Nova Scotia ... ... ... ... ... ... 13

of North- West Territories ... ... ... ... ... 13

„ of Prince Edward Island ... ... ... ... ... 13

,, of Cluelwc, how Appointed ... ... ... ... ... 13

„ Property Requisite ... ... ... ... ... 13

„ Resignation of ... ... ... ... ... ... l.'i

„ Qualification of ... .. ... ... ... ... 13

„ Sitting in Canadian H. of C. ... ... ... ... 17

„ Summoning Additional ... ... ... ... ... 14

,, Votes Equal, Negative has it .. ... ... ... 10

Sentences imposed by Colonial Courts ... ... ... ... 820

Separate Schools ... ... ... ... ... ... ... 333

Service of Lieutenant-Oovcrnors, Jjcngth of ... ... ... ... 4,28

Session of Canadian Parliament a Yearly one ... ... ... ... 12

,, of Ix'gislative Assemblies, Yearly ... ... ... ... 40

Sessional Papers, Publication of, and Protection of Persons ... ... 12

Settlement of Crofter Loan ... ... ... ... .,. ... 900

„ of Country, Land Ceiled for Settlement, Meaning of ... ... 99

Severing of Quebec and Ontario ... ... ... ... ...4,0

Severn's Case ... ... ... ... ... ... 52, 12;

Seychelles, Appeal from ... ... ... ... ... ... 1013

Shanghai. Appad fvom ... ... ... ... .. ... loi"

Sheriff, Right of 78

Ship, &e. See " Merchant Shipping Act."

Shipping and Navigation ... ... ... ... ... ... 70

Merchant, Act, Summarized ... ... ... ... (f>l

Shop, liaising a Revenue from ... ... ... ... ... i;,()

„ License by Dominion ... ... ... ... ... ... 14,-,

„ Saloon, Difference b;'tween Licenses ... ... ... ... | i-j

Siam, Appeal from ... ... ... ... ... ... ... ini3

Sierra Leone, Appeal from ... ... ... ... ... ...1013

Singapore, Appeal from. .SW' straits Settlements ... ... ... 1013

Sittings ''f Supreme Court ... ... ... ... ... ... 31)-,

Skimmed -Milk and Dominion Legislation ... ... ... ... a23

Slave l'ra<le and Colonial Admiralty Courts ... ... ... ... 897

Smith, sir Montague, on Laws for Peace, Order, and Ooo<l dovernniont ... 02

„ „ on Regulation of 'rrado followed ... ... ... f,/,

„ „ on RuNseU's Ca«o ... ... ... ._, 14(1

„ „ on the Scheme of the B.N.A. Act ... ... ... 47

„ on Trade and Navigation ... ... .., ... nf,

Socage LiiwR ... ... ... ... ... ... r,r,\,:M)

Society in Embarrassed state ... ... „. ... ... xw

INDEX.

1151

Solemnization of Marringo nnd Divorcp, Sub-soctions compared ...
Solicitors '""l Appeal to P. C.

„ and Practice in Cimadiv

„ Eelief Act

„ Roll Act...

Solomon Island, Appeal from

South Australia, Appoulfrom

Sovereign Power in Governor
Sovereignty and Political Organization
Speaker, Absence of

„ Appointment of

„ Deputy ... ... ... ... ... ... 23,

„ Election of, by each II. of C.

„ of H. of C. to have a Vote only when voices equal

,, of Legislative A s.sombly. Old Act

^, „ Election of

Quebec
„ Removal of

Special Law of the Dominion
„ Leave to Appeal, Accounts
jj „ „ Accuracy of Statements of i'act to P.O. ...

^, „ „ Actions depending on Result of Appeal ...

„ ,, „ Advocate Disbarred ...

„ „ „ Allowed

„ „ .. By-law ...

„ „ „ Argument on .. .

„ „ „ Challenge of Jury

Code

„ Commissioner's Decision

,, Complicated Partnership

„ Conditions attached ...

„ Conflict between Codes

„ Constitutional Question not raised

„ Contempt Coses

„ Conviction for Perjury

„ Costs to be paid by Appellant in any event

„ Criminal Cases

„ Crown Appeal

„ Custody of Children ...

,, Debentures, Refused ...

„ Different Laws

„ Divorce

„ Dominion and Provincial Railway Arts ...

,, Duty to apply for, before Case lixlgod

,, If a doubt entertained by Judicial Committoc of

sounilnoss of Decision appealed from ...
„ Election Case

,, English Judgments ...

,, Escheat

„ Fines

., Uovernment Grant ...

„ (Irounds for, to Ih! statwl

n Imperial Act

,, Insane or no

„ Insuranoe Cases

„ Judumenl standing against Appellant .,.

>» ,

VA(iF.

48, 151
... 420
... 721
... 840
,.. 888
... 1014
. . 1009
10
.. 27
... 23
... 10
555, 1003
... 23
... 23
... 727
... 40
... 37
16
... 112
... 474
430,431
... 445
... 420
... 449
463,481
... 426
... 418
... 404
... 431
... 403
... 434
... 428
... 478
... 414
... 415
... 428
. . 412
... 476
435, 430
... 480
... 458
... 434
... 459
... 423

22
18
464
449
414
460
449
452
474
459
472

nmMnnnwi

1152

INDEX.

Special— ''"»^ '"*""

„ Leave ti) Aiipciil, Lilx-l Cnso ... ... ... ... ... "7

„ „ „ Manager's Duty ... ... ... ... 477

„ „ „ Matrimonial Questions ... ... ... 436

„ „ „ New Districts ... ... ... ... 440

„ „ „ not to lie lightly granted ... ... ... 10

„ „ „ Obstruction of Way ... .,. ... ... 464

„ Ontario Statutes ... ... ... 460, 467

Peril of the Sea ... ... ... ... 468

„ „ „ Point of Law : cannot Change Front and Rely on

Facts only

„ PoorllAte ...

„ Privilege ...

„ „ „ Proper Person not Appealing ...

„ „ „ Question of Access to Harbour, Kofused ...

liifuscd
„ „ ,, Kiel's Giise ...

,1 „ „ llulos of Court below ...

„ „ „ Suggested Application for Leave

„ Facts, Roman Catholic Schools
„ Reference to S.C.Ontario
„ „ through a .Secretary of State ...

Speedy 'f'"''*''' Act ...

stamp Act, Pure and Simple, by Provincial Legislature ...

„ Duty on Canadian Stock
Stamps not Direct Taxation ...
State, meaning of ...

Statement, False ...

statistics and Census
Status of Kxecutor pending Appeal
„ of Provincial Legislatures

462
431
436
478
481
472
538
431
423
348
300
411
324
127
811
121

27
107

436

Statutes cited :—

PAGE

Statutes cited — con

25H. 8.C. 10.

.••

i006

14 O. 3. c. 83.

...

4, 6, 56

33 H. 8. c. 30.

...

402

c. 84.

...

... 772

8 El. c. 6.

,,,

...

1005

„ e. 88.

...

218, 654

13 El. c. 4.

• • •

• <•

402

15 O. 3.e. 31.

...

... .504

7 Jas. 1. c. 2.

...

771

„ c. 63.

...

... 873

14 & 15 Ch. 2

c. 13.

• ••

772

16 O. 3.C. 4.

...

... 402

10& n W. 3.

c. 25.

...

„ c. 62.

...

.. 772

1 1 W. 3. e. 6.

.•1

...

771

17 O. 3. c. 67.

...

849, 873

1 1 W. 3. c. 7.

...

704

18 0. 3. c. 12.

...

... 56

11 & 12 W. 3.

(Ruff.)

771

19 & 20 G. 3. c.

20.

... 772

2 Ann. c. 14.

...

772

21 G. 3. c. 70.

...

... 1010

8 Ann. c. 10.

■ •♦

847

22 G. 3. c. 82.

...

... 1006

4G. I.e. 0.

• • *

• • .

773

23 & 24 G 3. c

38.

... 772

6 O. 2. c. 7.

• t >

477

20 G. 3. c. 11.

... 402

8 G. 2. c. 13.

,,,

«4l

,873

„ c. 20.

...

... 694

13 0. 2. c. 7.

,,,

.. .

771

31 G. 3.C. 29.

...

... 694

20 O. 2. c. 44.

*■>

...

771

„ c. 31..

.4, 56,

397.407,513,

7 O. 3. e. 38.

• ••

849, 873

661, 697

7 O. 3. c. 46.

*• t

. >.

601

32 0. 3. c. 2.

...

... 399

13 0. 3.C. 3.

<••

• ••

402

„ c. 46.

...

6, 604

„ p. 2».

...

772

33 0. 3. c. 6.

...

... 309

„ c. 63.

...

M)0,

1010

„ c. 70.

...

6, 604, 596

INDEX.

1163

Statntes cited— cont.

PAOB

Statutes cited— con/.

PAGE

34 G. 3. c. 2. (U.C.)

399, 402

4 & 6 W. 4. 0. 95. .

... 1009

,. c. 3.

... 400

5 & 6 W. 4. c. 65. .

874

c. 6.

82, 397, 399,

6 & 7 W. 4. 0. 59. .

... 849

407, 420

„ c. 69. .

874

35 G. 3. (P.E.I.) c. 7.

... 402

c. 110

... 874

„ (C.)c.8. ...

201, 223

7 W. 4. & 1 V. 0. 28. ... 462

36 G. 3. (U.C.) c. 3.

212, 222

1 & 2 V. e. 9.

„ (C.)c. 9. ...

... 526

„ c. 69. .

.. 840,849,850

„ 0.48.

... 772

2 & 3 V. c. 63.

... 059

37 G. 3. (U.C.) c. 6.

... 400

3 V. (U.C.) c. 9. .

... 222

„ .. e. 12.

... 218

„ „ 0. 20.

212, 222

■). ...

... 1010

» „ 0. 21.

... 222

38G. 3. .

849,851

„ c. 22.

222

• 39 & 40 G. 3. c. 79.

... 927

„ „ 0. 23.

222

40 G. 3. (U.C.) c. 1.

... 400

3 & 4 V. c. 35.

.. 4,94,566,654,

41 G. 3. c. 107. ...

... 847

059, 663, 097

43G. 3. c. 138. ...

... 694

„ 0. 78.

... 585,053, 710

49G. 3.C. 27. ... 6,

594, 696, 660,

4 V. (C.) c. 17.

526

627, 652

4 & 5 V. (U.C.) c.

21. ... 222

60 G. 3. (U.C.) c. 6.

... 222

„ c. 61.

... 849

64 G. 3. c. 156. ...

... 847

5 & 6 V. 0. 36.

... 525

66 G. 3. (U.C.) c. 34.

... 222

0.45... 91

, 92, 93, 697, 840,

„ c. 82.

... 901

849, 850, 853, 874

67G. 3.C. 61.

„ P. 61.

1009

68 G. 3. (U.C.) c. 6.

... 222

c. 120.

69 0. 3. (U.C.) c. 2.

... 212

6 & 7 V. 0. 34.

.. 702, 82.'-., 826

„ (P.E.I.) c. 3.

... 402

0. 38.

902, 1007

„ c. 38. ...

0. 75.

774, 780

8G. 4.C. 119.

605, 650

„ 0. 76.

778,780

4 0. 4. c. 71.

... 409

0. 94.

.. 743, 825, 1010

6 G. 4. c. 67. ... 594

596, 627, 654,

7&8V. 0. 12. .

. 840, 849, 872

1012

c. 60.

772

„ 0. 68.

6, 649, 654

0. 69.

702, 902

6G. 4.0. 60.

... 773

c, 110.

278

„ 0. 69. ... 695,

696, 605, 627,

8 V. (C.) 0 45.

520

649, 653

„ „ c. 55.

.. i>-)n

„ c. 67.

... 772

8 & 9 V. 0. 93.

851

„ 0. 75.

... 65.T

„ 0. 120.

... "80

7G. 4.C. 64.

... 917

9 V. c. 93.

852, 85;i

7&8G. 4. 0. 62 ...

346, 663, 69i

„ 0.114.

... 508

696

9 & 10 V. 0. 3. &10 V. 0. l.(Nf.) (i

9G. 4.0. 61.

... 662

0. 9.S. .

... 404

„ 0.83.

706, 1009

10.lt 11 V. 0. 28.

... 819

9& 10 G. 4.0. 27....

... 62

0. 71.

514

lOG. 4.0. 17.

6,627

0. 83.

772

1 &2 W. 4.0. 23. ...

... 566

.-.95...

.92,94,703,851,

2&3 W. 4. 0. 51....

... 902

852, S7I

0.78. 6

627, 649, 654

12 V. (r.)o. 5.

630,531

0.93....

... 1018

„ (P.E.I.) c. 9.

.. 402

0.92....

1006, 1007

„ (I'.C.) 0. 03.

H. 40 ... 100

3 W. 4. (P.E.I.) 0. 1 1

... 402

„ (N.IJ.) 0. 05.

... 311

„ c. 15. ...

... 874

„ (C.) 0.81, 206,212,220, 1017

8 & 4 W. 4. 0. 27 ...

... 462

,. 0. 87. s.

5 ... 450

0.41....

411, 416. 902,

12 & 13 V. c. 21.

1000, 1022

0. 96.

... 703,82.5,901,

0.91....
a 09An

... 77-1

1039
i 1)

1164

JNDEX.

St&rtntes fitcil ~eo7it.

I'AOE

13 V. (N.B.) c. 2. ...

... 341

13&14V. (U.C.)o. 7.

... 222

c. 15. ...

... 1012

(C.) e. 27.

... 201

c. 69. ...

. . 1009

(C.) c. OS.

. . 222

14 & 15 V. c. 63. ...

707,718

C.83. ...

... 1007

„ c. 99. ...

825, 1039

15 & 16 V. c. 12. ...

... 875

c. 26. ...

... 946

c. 39. ...

... 514

16 V. c. 21.

... 273

„ c. 183.

... 212

„ (C.)c. 184. .

... 221

„ (C.) c. 235. ...

... 526

16 & 17 V. c. 21. 4,585, 653,694, 710

„ c. 85. ... ... 1025

e. 107. ... 85,862

17 V. c. 15. ... ... 161

17 & 18 V. c. 104. Merchant Ship-
ping Act (See Act, p. 927)... ss. 6,

7, 8, p. 998; ss. 9, 10, 13,
p. 999 ; BH. 21, 26, p. 933 ; 8. 31,
p. 034; ss. 35, 38, 40, 41, 42,
p. 929; B. 43, p. 932 ; ss. 45,
46, p. 930 ; s.s. 47, 48, 49, p.
930; ss. 50, 51, p. 929; s. 52,
p. 930; 88. 53, 54, p. 930;
ss. 65, 50, 57, p. 930 ; ss. 58, 59,
60, p. 930; ss. 60,67, 68, p. 931 ;
ss. 62, 63, 64, 65, p. 930 ; ss. 66,
67, 68, 69, 70, 71, 72, 73, 74, 75,
77,78,79, 80, 81, 82, 8.3, 84, p.
931 ; s.s. 85, 86, 88, 89, 90, 91, 92,
94, 95, 97, 99, 100, p. 932 ; s. 98,
p. 930; ss. 101, 103(4), p. 932 ;
ss. 102, 103, 104, 106, 106, p. 933 ;
s. 107, p. 997 ; 8. 109, p. 947 ; ss.
110, 119, 122 to 127, p. 946; ss,
131,136, p. 934; ss. 138, 139, 141,
144, 145, 146, 147, p. 936; s.s.
148, 149, 151, pp. 936, 937; ss.
150, 151, 165, 156, p. 936; as.
158, 160, 161, 162, 163, '64, 165,
166, p. 936 ; s. 167, p. 939 ; s.s. 168,
169, p. 937; ss. 170, 171, 173,
174, p. 937; 8. 177, p. 938; 88. 178,
179, 180, 181, 182, 183, 184, 185,
p. 938; B. 180, p. 939; s. 187,
p. 937; BS. 188, 189, 190, p. 039 ;
s. 191, p. 940; 88. 102, 193, p.
941; 88. 194 to 199, p. 940; h.
199, p. 938 ; ss. 200, 201, p. 940 ;

8. 202, p. 941 ; s. 203, p. 938 ;
ss. 203 to 207, p. 041 ; ss. 209 to

Statutes citwi — cvnt.

17 & 18 V. e. lOi.—cont.
211, p. 942; 88. 212, ;213, 221,
222, 223, 224, 225, p. 943 ; s.
226, p. 943; ss. 228, 229, 230,
231, 232, 234, 235, p. 944; s.
233, p. 939 ; s. 237, p. 946 ; ss.
236, 238, p. 944 ; s. 239, p. 946;
B. 242, p. 973 ; ss. 243, 244, 246,
247, p. 945; s. 251, p. 939; ss.
249, 250, 262, 253, 254, p. 946 ;
s. 265, p. 946 ; ss. 256, ;367, 268,
p. 946 ; s. 259, p. 947 ; ss. 260, 261,
262, 263, 264, 265, p. 976 ; ss. 268,
269, p. 995 ; s. 270, p. 096 ; ss. 271,
272, 273, 274, 275, p. 946 ; ss. 276,
277, 279, p. 947; ss. 280, 281,
282, 284, 286, 287, p. 046; s. 288,
p. 947 ; s. 288, p. 962 ; s. 290,
p. 947 ; ss. 301, ."202 (2), p. 966 ;
ss. 301, 302, p. 949; ss. 305-8,
321, p. 1000; ss. 309, 310, 312,
313, 314, 315, 316, 319, 320, p.
948 ; ss. 320, 327, 328, p. 905 ;
ss. 330, 331, 337, 338, p. 985;
ss. 340 to 344, p. 980 ; ss. 345,
310, p. 987 ; s. 349, p. 986 ;
ss. 350, 361, 352, p. 986; ss.
363, 354, 355, p. 987 ; bs.
356 to 364, p. 986 ; s. 368, p.
987 ; ss. 3C6, 366, 367, p. 987 ;
ss. 375 to 388, p. 988 ; s. 389, p.
989 ; s. 390, p. 091 ; ss. 392, 393,
396, :<97, 398, 399, p. 989 ; ss.
391, 395, 413, p. 990; ss. 400,
401, p. 990; ss. 404 to 410, p.
989; ss. 41 1,414, 415, 416, p. 991;
ss. 417, 418, p. 992 ; ss. 418, 420,
p. 990; S.S. 421 to 427, p. 991 ;
ss. 432, 437 to 448, p. 973 ; s.
435, p. 974 ; s. 439, p. 984 ; ss.
441, 442, p. 978; s. 443, p. 979;
s. 444, p. 978; s. 445, p. 979; s.
446, p. 978 ; ss. 448, 450, 452, 463,
p. 979; F. 461, p. 980; ss. 468,
459, p. 980; .ss. 456, 456, 467,
p. 984; .ss. 466, 407, p, 982;
ss. 458, 460, 404, 468, 470,
p. 981 ; ss. 471, 472, 473, p.
979; ss. 470, 471, 475, p. 979;
s. 476, p. 984 ; s. 477, p. 978 ;
s. 474, p. 979 ; ss. 478 (2), (3),
479, 480. 481, 482, 483, p.
980; 8. 603, p. 977; ss. 486,
487, 488, 489, 490, 491, 492, 493,
p. 983 ; s. 494, p. 984 ; ss. 497,
498, p. 982 ; ss. 499, 501, p.

INDEX.

1166

p. 978;
s. 646,

.. 711
.. 19J
.. 201
12, '>->r,

Statntes c\tei\—coHt.

17 & 18 V. c. lOi.—conf.
984; ss. 504, 500, 514,
ss. 618, 520, 525, p. 993
p. 947; i. 647, p. 1001.

i' & 18 V. c. 118.

18 V. (N.IJ.) c. 36.
„ (0.) e. 100. H. 23.

18 & 19 V. (Vic.)c. 55.

18 & 19 V. c. 9I.S.S. 2, 3,4,5, 6, 7,
8, p. 991 ; 8. 15, 11. 997 ; s. 10,
pp. 942, 943; s. 17, p. 938; s.
20, p. 984; s. 22, p. 941 ; s. 23,
p. 93G.

18 & 19 V. c. 119. .1. 3, p. 948;
s. 8, p. 960; ss. 10, 11, p. 957;
s. 14, p. 950 ; s. 16, ]>[>. 95",
978; as. 16, 17, 18, p. 057;
s. 19, pp. 948, 949 ; ss. 20, 26,
p. 951 ; s. 27, pp. 950, 966 ; s.
28, p. 956 ; h. 29, p. 951 ;
ss. 31, 32, 33, 34, p. 952; s.
35, p. 953; ss. 38, .39, 40, 41,
43, 44, p. 955 ; ss. 44, 45, 46,
47, p. 956; ss. 48, 49, p. 958;
8. 50, p. 957 ; m: 51, 52, 53, 56,
p. 959; S.S. 59, 60, p. 958 , s. 61,
p. 961 ; s. 62, p. 958 ; ss. 63,
64, p. 956 ; ss. 66, 67, p. 960 ; ss.
71, 72, 73, 74, p. 958 ; ss. 75 to 80,
p. 960 ; s. 82, p. 961 ; s. 84, p.
960 ; ss. 90, 97, 98, p. 962.

19 V. c. 65.

... 347

19 iV 20 V. c. 23.

... 713

c. 113.

... 825

20 V. (N.B.)c. 1. ...

... 194

„ (C.) c. 125.

... 532

„ c. 129.

.. 163

20 & 21 V. c. 34.

707,718

c. 39....

719, 840

„ c. 75.

... 1040

21 V. (N.B.)c. 9. ...

334,

339, 342,

34 1

317

, 348, 363

„ (N.S.) <■. 47.

... 163

„ (N.ll.) c. 57.

315, 347

21 & 22 V. c. 90...

368

, 765, 8«6

c. 91...

6, 721

22V^c. 20.

825, 1039

„ c. 26.

... 726

„ (C.) 0. 66. ..

125,273

„ c. 85,

... 433

„ (U.C.)c. 99. .1.245... 103, 206
22&23 V. c. 26. ... ... 728

. „ 0. 10 727

c. 63. ... 825, 1039

23&24 V. c. 89. ... ... 726

„ V. c. 122.... 826, 1030

Statutes cited— coiit.
24 V. No. 8

„ No. 16. 3. 29
24 &25 V. c. 10. s. 9.
c. U. ...

... 424
... 1009
... 980
826, 1039
... 1040

. „ c. 31. ...

c. 97. ». 47 ... 991
c. 100.... ... 1039

„ c. 101.... ... 1007

c. 104. ... 1010

25 V. c. 19. ... ... 498

25 & 26 V. c. 63. a. 4, p. 933 ; s. 6,
p. 9.34; ss. 18, 19, p. 942; ss. 20,
21, pp. 938, 940; «. 22, pp. 713,
942 ; s. 23, p. 973 ; s. 24, p. 974 ;
8S. 25, 27, 30, 58, p. 965 ; ss. .35,
37, p. 949 ; s.s. 43, 44, 46, 46, 47,
p. 990 ; ss. 52, 63, p. 979 ; ss. 39,
40, p. 985 ; ss. 64 to 66, p. 978 ;
ss. 66 to 78, p. 977.

25 & 26 V. c. 68. ... 872, 874, 875

c. 70. ... 774, 786

26 V. (N.l{.)c. 7. ... ... 341

„ (U.C.)c. 44 103

26 & 27 V. c. 24. ... 898, 903, 1021

c. 35. ... ... 1040

c. 51. s. 3 947, 948
c. 51. s. 11 ... 966
c. 51.S. 13 ... 958
e. 61.8. 14 ... 969
c. 76. ... ... 732

c. 83. 5, 721, 7.33, 746

27 V. (N.15.)o. 43. ... ... 231

27 & 28 V. (0.) c. 3. ... 213

„ c. 13. ... 410

(U.C.)c. 18. ... 162, 177,

206,641, 1064

c. 25. ... 890, 927

(U.C.)c. 68. ... 410

„ c. 60. ... 431

... 366

28 V. cc. 28, 29.

28 & 2'J V. c. 14

e. 63

c. 63. s

c. 64. ...

0. 106....

c. 11.3....

c. 116....

29 V. (N.S.)c. 30. ...

„ {C.)c. 34. ...

29 & 30 V. c. 26. ...

(Q.) c. 32.

... 734

92, 738, 1079

... 346

... 741

... 742

743, 887

743, 1040

... 365

... 368

... 908

202, 1047

(U.C.)c. 61.... 164, 163,

177,208,210,

1044, 1064

c. 65 743

p. 67. ... 6,721,743

4 D 2

1156

INDEX.

Statutes cited— «o»/.

PA(IB

Statutes citoA—cont.

PAOB

29 & .30 V. c. 87. ...

... 1040

M V. (N.H.) c. 47..

.. 67.113,226

c. 121....

778, 786

„ (Q.)c.68 .

84, 86, 329

30 V

. c. 3

33 & 34 V. c. 10. 8.

20 ... 743

»»

(N.B.)o. 6. ...

... 231

c. 14. .

.. 100,764,773,

„ 0.12....

... 231

801

„ C.27....

... 342

c. 62.

774

(N..S.) c. 36, ...

... 487

„ c. 66. .

... 1041

30 & 31 V. c. 3. 603,

746,823, 887

c. 68. .

817

c. 16. ...

... 989

c. 66. .

.. 721,745,786

c. 46. ...

... 903

c. 75.

.362

c. 124.

826, 1039

c. 82. .

.. 787,809,811

8.4,

p. 943 ; 88. 6,

c. 90. .

„ 789, 895, 972

7, p.

944; 8. 8, p.

e. 95. .

964

939;

s. 9, p. 944 ;

c. 102.

.. '64,773,799

N. 10

p.943;s. 11,

34 V. (N.B.) 0. 1. .

... 392

p. 904.

„ (Q.) c. 2. .

322

31 V

.(D.)c. 1. ...

... 84

„ (D.) c. 6.

75,91

(0.)c. 6. s. 2 ..

... 107

„ (N.B.) e. 21..

.. 3.'i4, 339, 342,

(D.)c. 8. ...64,69,68,144

367, 360

C. 12.

... 91

„ (D.)c. 22. .

101

(D.) 0. 17. ...

86,91

„ (0.)('. 38. .

... 233

»»

c. 23.

... 91

„ (Q.) 0. 68.

... 204

c. 29.

... 367

34 & 35 V. e. 28.

.. 3, 11,46, 369,

(0.) c. 30. ...

11, 392

538, 640, 547,

(Queenl.) No. 38.

... 1009

553, 887

c. 64.

... 849

c. 83. .

(D.)c. 56. ...

... 93

c. 91. .

... 1025

„ e. 58. ...

... 451

0. 110.

.. 713,064,966,

., c. 60. ...

72,74

973, 976

„ c 66. ...

... 101

c. 107..

... 1012

.. 0. 70. ...

... 50

35 V. (D.) 0. 5.

„ c. 94. .

31 & 32 V. c. 29. ,

„ • p. 101.,
0. 106.
c. 129.,

32 V. (Q.) c. 4. .
(O.) c. 6.

c. n.

(0.)c. 22. ...

(O.) c. 27. ...

„ <■. 32. ...

(N.B.) c. ,i4. ...
(«.)c. 65. ...
(O.) c. 92. ...
32 & 3.'t V. m.> c. 3.

p. 10.
c. 11.
e. 31.
p. 52.
c. 101.

... 642

754, 755

... 647

... 553

758, 934

103, 392

... 935

... 390

... 107

162,177,208,

1064

231, 232

... 232

... 392

... 333, 369,

.547, 553, 800

758, 845

702,963, 100!

... 102

... 541

547, 762

„ c. 23.

„ (D.) p. 26.
„ „ p. 65. s

35 & 36 V. p. 19.

p. 29.

p. 39.

p. 45.

p. 63.

p. 73.

p. 97.

(]).)p. 115.

33 V. (Clin.) 0. 3. 618, 553, 554, 800

36 V. (O.) p. 3.
„ P. 0.
„ c. 10.
„ (0.)p. 21.
„ (D.) c. 28.
„ (O.) e. 48.
„ (D.) p. 82.
36 & 37 V. p. 45.
p. 69.
p. 00.
p. 66.
„ p. 86.

88,89

... 233

... 895

743, 887

100,764,801
... 803

556, 565, 566

713,932,985
... 696
.. 307
... 392
... 1014
... 68
... 392
... 312
... 177
... 232
787, 809
896, 903

642, 774, 783
... 1026
... 964

C. 26.

(D.) c. 40.

... 100
85, 86, 332

8. 3, p. 929; 8. 7,
p. 936 ; 8. 0, p. 973 ;

INDKX.

1167

Statutes cited— eo«/.

I'AOB

Statutes cited— c«»»/.

PAOH

36 & 37 V. c. 85.-

-COIlt,

& 39 V. c. 51. ...

895, 903

. 12, 16, p. 965;

„ c. 52. ...

803, 804

.4, 18, 20, p. 966;

(D.) c. 53

...92, 93, 823,

. 19, 20, p. 987;

849, 856

22, pp. 947, 965 ;

n. 66. ...

852, 1007

. 23-28, p. 969;

c. 77. ...

... 1026

29, p. 934 ; s. 30,

„ c. 85. . .

... 1041

933.

39 V. (Q.) c. 2. ...

... 232

c. 88.

... 774,890,903

■

(Q.) c. 7. ...

120, 127

c. 91.

... 649

(N.B.) c. 8. ...

... 391

37 V. (0.) c. 7. S8.

32, 32 ... 463

(D.) c. 18. ...

... 50

„ (D.) e. 10.

8,20,48,313,394

(0.)c. 24. ...47,56,278,459

., c. 16.

489,490,491,494,

c. 27.

... 493

406

, (Q.)c. 52. ...

... 66

„ c. 20.

„ c. 57. ...

... 452

„ e. 21.

„ c. 61. ...

... 240

„ (Q.) c. 23.

452

, (0.) c. 93. ...

... CIO

„ (0.) c. 30.

... 308

„ c. 109. ...

... 473

„ c. 32.

... 52,55, 56,58,

39&40 V. c. 36. ...

852, 971

144, 158, 177

c. 43. ...

... 801

„ (Q.) I'. 51.

161

C.46. ...

... 1041

„ (D.) 0 103.

234,236

c. 69. ...

1026, 1029

37 & 38 V. e. 26.

... 811,818,819

c. 80. 912,925,964,078

c. 27.

... 820, 831, 844

ss. 4,

6, 10, 11, p.

„ c. 35.

... 596, 605,649,

972,

8.S. 7, 8, 9,

653, 654

p. 976; ss. 11, 13,

c. 41.

719,720,821,840

p. 973; 8. 14, pp.

c. 77.

... 822

948, 957, 958; 8. 15,

„ c. 83.

1026

p. 977; s. 17, p.

e. 85.

... 1021

949;

s. 19, p. 961 ;

c. 88.

946

H. 21

pp. 960, 966 ;

c. 94.

825,1039

8. 24

, p. 970; s.

c. 96.

... 663, 694, 697,

25, \

. 967 ; .S.S. 27,

846,849,1019,1023

28, p

968 ; s. 29, p.

38 V. (D.) p. ix.

347

973-

1; 8. 30, pp.

„ (Q.) 0. 8.

... 40,45,83, 109

973,

976; 8. 31, p.

„ (D.)o. 11.

... 19,52,82,304,

979;

8. 34, pp. 933,

395, 404, 405,

906;

8. 36, p. 932 ;

442, 4.54

s. 39,

p. 977.

„ (M.) e. 12.

403

40Vic. (N.S.) c. 2.

... 543

„ (D.) e. 10.

80,81,307

, (D.)c. 3. ...

... 543

„ c. 20.

65, 266

„ c. 21. ...

... 49

., c. 49.

403

c. 26.

... 542

.. (D.) c. 47.

... 104

(D.) c. 41. ...

81,308

„ c. 40.

6, 403

„ c. 46. ...

... 233

„ (Q.) c. 62.

274,278

„ e. 60. ...

... 240

,. >, c. 64.

... 124, 232,274,

c. 60. ss. 326,

327, 370 461

328, .538

& 41 V. c. 16. ..

... 978

„ (0.) c. 75.

... 232

„ „ 8.S. 4, 5, 6, 7, 8 980

,. (I).) c. 88.

... 92,93,94,849

c. 23. ...

... 824

38 & 39 V. c. 12.

872

C.69. ...

812,818,819,

(0.) 0

16. ... 108

909

c. 17.

... 963,954,969

V. c. 6. B. 26 ...

442, 443

c. 38.

... 11,566,746,

, (Q.) c. 13. 8. 1

... 236

822, 1079

, „ c. 20. ...

... 240

c. 30.

773

}

, (0.) c. 69. ...

... 473

■»«miTfT»—wig»««j|»fgr(ft^«»

HH>HitM>» !■ fiiftWfiWIII

1168

INDEX.

Statutes cited— co»^ paoi

Statutes cited— ('o;l^ PAQE

41 & 42 V. c. 67. ... 738, 826, '041

40&47.V. c. 41— t•o»^

c. 79. ... 703, 743

17, 19, p. 964; 8. 18,

. 42 V. (D.)c. 8 243

11.962; KH. 21 to 24,

„ (B.C.) c. 12 322

27, p. 964 ; 88. 28,

„ (D) c. 14 103

29, 3Uo35, p.963;

„ c. 39. ... 404, 506

88. 37, 40, p. 964 ;

„ (D.)c. 48 240

88. 43 to 45, p. 963 ;

„ c. 07. s. 41 846

H. 46, p. 973 ; 8. 48,

42&43 V. c. 38 896

p. 944.

„ c. 72. 8s. 2, 4 ... 074

c. 57. ... 1023, 1028

43 V. (D.;c. 19 66

47 V. (H.C.)c. 14.... 500, 619,621

„ „ c. 22 283

„ (N.li.)e. 19 120

„ (0.)c. 24 1075

„ {M.)c. 26. ... ... 618

„ (D.)c. 25. ... 5,11, 46, 403,

„ (D.)c. 32. ... 04,144,158

638, 540, 547

„ „ e. 39. ... 87.88

43 V. (Q.) c. 32. ... 240,243

47&48 V. c. 24. ... 719,840

„ „ c. 33. ... ... 243

„ c. 31. ... 758, 841

„ (D.) c. 34 466

„ c. 57 726

„ c. 67. ... 241,249

„ c, 62. ... 839, 840

43 & 44 V. c. 8 009

48 & 49 V. (D.) c. 7. ... 64

(Q.)c. 9. 32,119

c. 49 846

43 & 44 V. c. 16. s. 3, pp. 937, 938 ;

„ c. 74. ... ... 1039

8. 4, p. 937; ss. 5, 6, pp. 946,

49 V. c. 4. ... ... 71

971; 8. 7, p. 936; s. 8, p. 971;

„ (D.)c. 9. ... ... 315

8. 10, pp. 945, 971 ; 8. 16, p. 938.

„ c. 13. ... ... 884

43&44V.C. 20. 811,812,818,819

„ c. 18. ... .. 1075

c. 43. 8. 3 ... 970

„ (N.B.) c. 25 107

44 V. (0.)c. 6 103

„ (Q.) c. 34. ... 35, 36

., (D).c. 14 5

„ (M.)c. 52 76

„ (0.)c. 27. ... 137,400

„ (N.S.)c. 56 71

„ (Q.) c. 62 461

„ (D.) c. 100 1066

44 & 46 V. c. 3 1028

49 & 50 V. c. 33. 849, 855, 867, 868

„ c. 68. ... 825, 845

c. 35. ... 3, 655, 790

„ c. 69 703

c. 48. ... 755, 884

C.69. 702,820, 1039,1041

50 V.c. 4. 88. 141, 144 ...65,60

46 V. cc. 20.&21.... ... 542

„ (N.B.) c. 4 102

„ (Q.)c. 22 113

„ 8C88. 2.C. 4. 8.S. 2, 6 ... 903

„ (D.)c. 23. ... 87.88

., (M.)c.lO 70

„ (N.B.) c. 100. 66, 71

50&51V. e. 3 840

46 & 46 V. c. 56. ... 943, 992

c. 13. 743,800,801,887

„ e. 72. ... 811,819

c. 67 726

c. 76. ... 837, 973, 975

c. 70. 1008, 1026, 1029

46 V. (N.S.W.) No. 17 ... 417

61 V. (0.) c. 32. ... 106, 106, 323

„ (D.) c. 24 459

„ (D.)c. 37 404

„ (0.)c. 46 469

., C.47 324

„ (D.)c. 120 298

„ c. 62 888

46 & 47 V. (D.) c. 30. ... 144, 158,

„ c. 70. ... ... 888

837, 839

61 &52 V. c. 24. ... ... 966

0,39. ... 768,764,774,

c. 57. ... 650, 846, 1006

787, 789

c. 05 719

c. 41 762

62 V. (0.) c. 15 106

8. 3, p. 962 ; 88. 4, 6,

„ (D.)c. 43 104

p. 963 ; 8. 7, p. 964 ;

52 & 63 V. c. 29 947

8. 8, p. 963 ; 8. 10,

c. 42. ... 837, 839, 862

p. 964; 8. 11, p.

c. 43. 88. 1 to 6 ... 933

... 963; s». 13, 16, 16,

„ c. 46. ... 888, 037. 040

MitaMaata

IKDEX.

ii5d

PAOB

)23, 1028
519,621
... 120
... 518
144, 158

87,88
719,840
758, 841
... 726
839, 840
... 64
... 846
... 1030
... 71
... 315
... 884
.. 1075
... 107

35,36
... 76
... 71
... 1065
867, 868
555, 799
755, 884
...65,66
... 102
... 963
... 76
... 840
801,887
... 726
26, 1029
106, 323
... 404
... 324
... 888
... 888
... 966
46, 1006
... 719
... 106
... 104
... 947
839, 852
... 033
037. 040

Statutes cited— cow^ i-aob

Statutes ^'itcd — cont.

PAOI

62 & 53 V. c. 68 888

64 & 66 V. e. 67.

849

s. 2 (A), p. 085;

c. 67.

852, 1010

ss. 6, 7, p. 986 ; ss.

„ c. 69.

396, 938

3, 4, 9, 10, p. 987.

66 & 66 V. c. 19.

... 718,719,727,

c. 73 933

728

53 V. (IU".)c. 8 323

,, c. 35.

008

„ c. 9. ... 961,967,068

„ c. 52.

906

„ (0.)c. 13. ... 395,396,401

66 V. c. 14. 734, 738, 743, 746,

„ 0. 18. ... 107, 162

768, 847

„ (M.)c. 38. ... 371,374

56&57V.C.54.

...768, 762, 764,

„ ((».;c. 66.. ..164, 176, 196,208,

773, 789, 709,

212,1042, 1065,

822

1060, 1073

c. 66.

1001

63 & 64 V. c. 27.. ..60,395, 888, 927,

67 V. f. 2.

910

973, 976, 1007,

57 & 68 V. c. 30.

926

1019

c. 39.

926

c. 33. ... 696

c. 56.

... 743,786,812

c. 37. 374,934,1031

C.60..

..71,451,713,768.

c. 51. ... 603,694,697,

762,911,912,916,

847

917,918,920,921,

54 V. (0.)c. 2 1013

922,923,924,926,

„ c. 46. . 163, 194, 208,

927, 1039

212,1042

58 & 60 V. c. 34.

411, 1002

54 & 55 V. (D.)c. 25....29, 163,323,

c. 44.

1030

395, 404, 405, 434

60 V. (2nd scbs.)

c. 3. 666, 1003

c. 29 395

liPAisBD Acts Uekehued to.

S. B.

C. c. 26. ...

... 323

S. C.

(1886)0.175. ... 324

c. 124....

... 230

S.N.

S. (3ra .scr.) c. 19. ... 163

s. c.

e. 66.

... 233

I»

(4th ser.) c. 89. ... 402

c. 101. ...

... 324

(6th scr.) c. 3. ... 1079

S. L.

C. c. 24. ...

... 163

S. 0.

(1877)0.37. ... 400

»»

c. 69. ...

... 240

„ c. 42. ... 391

»»

(1861) c. 77.

... 398

„ 0. 142. ... 368

■

„ e. 88.

... 235

„ 0. 167. ... 66

8. IJ

C. (1869)0. 13.

... 402

„ 0. 181. .. 138,324,

„ c. 19.

... 391

400

l»

„ 0. 63.

... 240

(1887) 0. 41. ... 390, 402

„

„ c. 54.

... 206

„ c. 42. ... 400

s. c.

(1886) c. 9.

... 314

„ c. 44. ... 401

• •

„ c. 106.
,. c. 135. ..

... 190
395, 404,

„ c. 124. ... 302
„ c. 194. ... 158, 212

405

s. «

.(1888) ... m. 1114, 1116,

„ c. 167.

... 107

lll.-ia, 1142«. 1178, 1178a,

t»

„ c. 167.

... 107

6009, p. 398.

„ c. 174.

... 107

Statutory Caso ...

„ CondilioiiN iind limumncu ('.jmpftuie.s

Construction of sees. 91 iind 02 Exiiniincd
Steamers, Intor-Provinciul ...
Stock, Colonial, Transfer of ...

„ Holders, Register in Colonitw ...

... 144
... 268
... 301
66, 224
... 908
... 837

mmvttvmmmmfm

1160

INDEX.

PAOB

Stocks lit Tinif of tho Union ... ... ... ... ... 488

Straits Settlements, Appoui from ... ... ... ... ... ioi3

Streams nnd Floating Timbur ... ... ... ... ... 461

„ in Provinces iind FiHh thoroin ... ... ... ... 72

Strong, C'.J., Exnminntion of RusmcII c. Reg., llodgu r. Keg., and City of

Fredoricton i . livif..,, ... ... ... ... 165

,, „ on License which would amount to a Prohibition ... ... 68

,, ., on Prohibition of Manufacture ... ... ... ... 164

„ „ on sub-see. 2 1 , sec. 0 ... ... ... ... ... 86

Subsidy t" Kiiilway ... ... ... ... ... 126,220

Suing Governor of Colony ... .. ... ... ... ... 10

Sum I>i'niiinde<l, Apiicalablc Value ... ... ... ... ... 405

Summons of Senators ... ... ... ... ... ... 14

,, of Legislative Assembly ... ... ... ... ... 38

Sunday Closing loi, 109

Superannuation Acts ... ... ... ... ... ... 726

Supreme Court of Dominion, Establishment of ... ... ... 3,304,404

,, ,, and Severn's Case ... ... ... ... ... 65

„ of Newfoundland Act... ... ... ... ... 627

Surrender by Indians, Alternative Effect ... ... ... ... 00

Surveyor of ships. Scb Merchant Shipping .Vet.

Suspension of Constitution, Txtwor Canada ... ... ... ... 4

System of I'-f^. Commercial Law ... ... ... ... ... 62

Taney, J-, on U.S. License Laws ... ... ... ... ... 216

Tasmania, Appeal from ... ... ... ... ... ... looo

Tavern, i" «ec. 02 ... ... ... ... ... ... ... i26

,, Licenses and Exclusive Power of Provinces ... ... ... 69

Tax by Province on Ottieial Income of Dominion Officer ... ... ,., 70

,, Income, and Provincial Stamp Act on Policies of Insurance ... ... 127

„ on Assurers ... ... ... .. ... ... ... 127

„ on Banks and Insurance Companies ... ... ... ... 68

,, on Brewers ... ... ... ... ... ... ... 63

„ on Exhibits in Courts of Justice ... .,. ... ... 32,320

,, on House of Public Entertainment ... ... ... ... .565

,, on Income, New Brunswick ... .. ... ... ... 75

,, on Policies of Insurance ... ... ... ... ... 68,113

,, on Trades ... ... ... ... ... ... ... 119

„ on Wholesale Liquor Dealers ... ... ... ... ... 160

Taxation, Additional, for Non-payment ... ... ... ... 76

„ by Municipalities, Extent of ... ... ... 76,486

,, Direct, within the Province... ... ... ... ... 113

,, ,, in both Dominion and Provinces ... ... ... 63

„ „ and Indirect Examined in Bank of Toronto (>. Laml)e ... 114

,, extended so far as to cause Suspension of Business ... ... 118

,, of Public Lands in Canada ... ... ... ... ... 636

,, Point of, and Special Leave... ... ... ... ... 122

Power of, in U.S ... ... ... ... C9

„ Stamps not Direct ... ... ... ... ... 121

„ under Municipal Institutions ... ... ... ... 77

INDEX.

1161

Taxes, DiNcrimiimtion in ... ...

Teaching, Hrctiiriiin
Telegn^aph und BixIh uf lliiyH

Telegraphs, ill sw. a 1

Temperance Acts, 1883-4, KcHult of Argumi'nt.

„ „ of Ciiimdii and Ontrtrio Act

Term of Lieuteiiiint-Oovernor...

Terms, I'mm, Onlor, mid Good Government not to bo Hestrictcd ..
Territorial <'ourt!j of Julian, CounttTflaim
Territories outside a Province, Incorponition of
Territory CV'ded for Settlement, moaning of
Test of Appeal

„ Appealable Amount ...
Three Kivors, Prohil)ition of Liquor Sales
Tidal Navigable River, Power to Obstruct
Timber and Streams in Canada

„ on Lands occupied by Lulians...
Time, Limit of, between Meetings of Purliumcnt
Tobago, Appeal from
Tonga, App il from
Trade ttud Commorcc in sec. 01

„ „ Considered

,j „ includes, in Ijiiws of Canada

^ ,, Incorporiition of Companies

,, „ include Political Arrangements

„ „ Power to Municipalities ...

„ „ Question left by J.C. undecided

„ Rcgulat ion of, Examined by Kitchic, C.J.

„ Act of Old Provinces ...

„ Case on Interference with

„ Katepayors ...

„ Sale or Storage ofUunpowdor ...

„ Shop Licenses

,, in Guns

„ Navigation, and Immigration of Chinese ...

„ of British Possessions, Kegulation Act ...

„ Provinces can Legislate to Prevent Fraud in

„ Eliminating Subject Matter from

„ Kegulation of

„ Suppression of

„ Regulated throughout the whole Dominion may be within
power ...

„ Regulation of, and Commerce ...

„ What is
Trader, Tax on amount of Trade done
Traders and Non- Traders: Bankruptcy Act
„ in Cannda defending Outside Creditors
„ Regulated iu U.S. ... ... ••• ••• '•

Trading Rights and Treaty with U.S.

Transfer of Colonial Stock ...

of High Court of Delegates to King in Council ...
„ of Property in British Ship ...
„ of Stock and Transfer Duty ...
Treason of Senator...

Treasury of Provinces

Provincial, and Product of Tax

I'AdB

... 122
... SAG
... 74
... 224
... 168

162, 1042, 1064
...4,28
... 43
... 1031
3
... 00
... 441
... 424
... 163
... 71
... 461
... 100
... 12
... 1013
... 1013

167, 1043, 1076

\o\, 1068

... 181

2, 263

... 68

207

... 63

... 605
66, 1076
... 162
... 104
... 160
... 162
... 64
... 861
... 106
... 176
1043, 1076
... 103

Dominion

... 167
... 62
... 263
... 127
... 79
... 88
... 66
... 807
... 008
... 1006
... 030
811,812
... 16
... 633
... 166

l4M|*uilM<l>Klii*t""»"nwn

wmmmm

1162

INUKX.

I'AdK

Treaty riMlin^ Lmul for Suttlomont iiiiil Ininiigriitiun, moaning of ... ... 09

„ ObligiitionN... ... ... ... ... ... 541, 1031

,, ofPftrii! ... ... ... ... ... ... ... 4

ofUtrocht ... ... ... ... ... ... ... 5

of Wiuthingtoii, 1872... ... ... ... ... 636,803

with V.H. as to Kisliing ... ... .. ... ... 808

,, Schemi" of f'oiiffdoriition to lio VicwcKl iw ... ... ... 108

TrOeB i" I'roviiiPi', Kight to ... ... ... ... ... ... 73

Trenching on Hroviiieinl .Miilt>rs ... ... ... ...44,1043,1007

Trespass 'ly I'"<l'''eti)r of Kisliing ... ... ... ... ... 74

,, to Cut Trcps in I'i'ovince ... ... ... ... ... 73

Trial I'y Jury in CiinHdit ... ... ... ... ... ... 45

„ of Fugitive Offendur ... ... ... ... ... ... 831

„ of Offtiidrr (in High Si'iiH under Morchiuit Shipping Act ... ... 004

„ ofRiid ... ... ... ... ... ... ... 12

Tribes, Indiiin, and t'ommcrcc with ... ... ... ... ... 62

Tribunal, I'unctionB of ... ... ... ... ... ... 380

,, Minintor's Court formed an ... ... ... ... ... 80

„ Parlianicntiiry t'ontompt ... ... ... ... ... 1070

„ til huiir Somito Question of Qimlitiration and VucuncieB therein ... 10

Trustees, I^omiuion Acting aN Huch ... ... ... ... ... 332

to onrry on ]Jank, appointed by Dominion Act ... ... ... 75

Turkey, A pjieal from ... ... ... ... ... ... 1013

Turks »nd Caioos Island, Ajipeal from... ... ... ... ... 1014

Turnpike Itoad Trust Debts ... ... ... ... ... 520

Ultra Vires Act of I/ientcnaiit-Oowrnor
,, „ Disfranchising Candidates
„ ,, Utiiring Auction Petitions

,, Licensi' oil As.surers by Provincial ixtgislnlure
,, „ Tax, Exhibits in Court ...
Ungava, New Territory marked out in Canada ...
Ungranted I-iiinds in I'rovineo
Uniform Legisl'ition
Union Agreement of Canada Examined

Calling together of Canadian Parliament...
,, Judges who were Party to the Canadian ...
„ Laws and Education ...
„ of Churches, Canada ...
„ Declaration of
,, Proclamations after ...
„ of Quebec and Ontario in 1840, Act
,, Wclfaro of Provinces ...
United Kingdom and CH)nstitution of Canada ...
„ „ and Money Bills

,, ,, Use of Words as constituting a State ...

,, States Brewer's License

„ Commercial System

„ Confederation and Canada

„ Constitution Examined ...

..>

...

30H

■ **

...

127

...

554

...

13d,

388

...

218

«*.

...

365

...

274

,, ,

544

*••

663

...

• **

...

.• •

.>•

160

...

,173

.••

118

il^.MM^J^^MIite^d^*a*^MM

INDEX.

1163

I'AriK

... 00

6il, 1031

635, 803

... 805

... 108

... 73

1043, 1067

... 74

... 73

... 43

... 831

... 004

12
... 62
... 380
... 80
... 1070

16
... 332

7<5
... 1013
... 1014
... 520

• •*

...

4(1

,308

*..

*•*

127

*•«

554

...

135

388

...

218

...

365

...

274

.. •

544

...

663

tt .

...

.• •

160

...

173

■ ■•

118

United stiitoM — cnnt.

,, „ (,'iiiistiliitiuii Kxiiiiiinuil by Juiliciul Coinmittoo

„ ,, Iiii'onio 'I'lix . . ... ... ... ■•• •••

,, ,, I'l'Kviiu'iiil FrrricH .,, ... ... ...

„ UitilwayH frcmi Ciiimilii ...

„ ,, Suimtiwiiid MoiiBy IJills ...

„ ,, 'IViTitiiry, lliiilwiiy to, iimtliT iiiuroly Loeiil iiiiil Priviitc within

Hul)-Kuc. 10 iif me. 21) ... ... ••• •••

Unlimited l'"Wi'rM of Stiitf.s of AmeriiM

Unorganised Tnu'ls of Country mill AilmiiiUlnitioii of iho Iiiiw ...

Upper L'liimda Miirriagu Ijiws

,, ,, Old t'orniiitiou

,, „ Old I'roviiioi' of

„ „ rrohiliitioii of Lii|Uor Hale

„ and Lower Canada, L'liilfd

„ „ „ .Sovuivd ...

Hvn\

Vancouver Island, History of

,, ,, I'nitod to Ilriti.'sli Columbia

,, ,, Appeal from

Vacancy i'l 1'^"^'" "1 tlouncillor of Quelifi!
,, in Suniito by Ueath, &c., how llllod

Van Diemen's Land, Appeal from ...

Value of Subject Matter of Appeal. See 1000 e/ unj.

„ „ DelmteJ Question ...

,, Raised by Interest ...

,, ,, Uuestion of Taxation

Varley Sehoji ... ... ... ...

Verdict f^et Aside, not an Interlocutory Decision
Vessel, I'lijuor License to
Vice-Admiralty Court and Jurisdiction

_, „ Conferred by Dominion Act

Newfoundland, Old Act
Viceroy, wlictlior the Oovemor of a Colony is ...

Victoria I'll ''!''""«"'. I'l'ivi'i'S^'* "f

„ Appeal from

Virgin Islands, Appeaifrom

Vote of (Speaker of II, of C. ...

Votes, Money, by H. of C. ...

Voting in H. of C. Canada ...
„ in Seimtu ...

Seamen's. See " Merchant Shipping."
Warehouse Koceipts Case ...
Warrant for Arrest of Fugitives

„ Extradition ... .••

TAIK

lid

226

2.)

254

4,6

103

4,6

543

o
... 744
... 1014
... 37
... 16
... 1000

... 432

... 433

... 122

... 347

... 423
140, 151

... 888

... 60

... 620

... 10

... 12

... 1000

... 1014

... 23

... 25

... 23

... 16

75, 206
... 827
... 784

Mmi't»Mwniniinmii|ipuiiiiimni;fiiiH«iiiimiiiMiiiiiiwii»iiii|

1164

INDKX.

PAOA

Washington, Treaty of, B8 to Fishing.., ... ... ... ... 805

Waste I^aiuls in Provinces ... ... ... ., ... 519,524

Watson, I'<Jril, on History of Quelioc ... ... ... ... ... 96

"Weights iind Measures" Provinciiil Act ... ... ... ... 76

.> „ soc. 91. ... ... ... ... ... 76

" Welfare " of Dominion ... ... ... ... ... ... 2

Wesleyan Academy nnd Scliool ... ... ... ... ... 347

West African f'tttlcnunt.M, .Appial fit.m ... ... ... ... 1C14

West Florida, Old ... ... 95

West India TkkIc, Old ... ... ... ... ... ... eu

Westbury, I'Ord, on ]{i),'lit of Appeal toP.C. ... ... ... ... 413

Western Austmliii, Appeal from ... ... ... ... ... 1009

„ Pacific Islands, Appcid from ... .. ... ... ... 1014

,, Provinces, (ircat Likes, and Fish therein ... ... ... 74

Wetmore, J., on New Urunswick Scliool Question .. ... ... 301

Wholesale and Hetail ... ... ... ... ... 161

„ Licenses ... ... ... ... ... ... 50

„ „ Acts of 1883, 1884 ... ... ... ... 140

„ LiipiDr Dealers taxed ... ... ... ... ... 150

Wild Animals, Killinff, Appealable Value ... ... ... ... 419

Wilful Hreaeh of Provincial Act ... ... ... ... ... 126

Wills to lie executed according to I.11WS of Canada, Olil Act ,.. ... 561

,, Proluifo of, in the Ci>lonies to lie recognised in U.K... . ... ... 903

Winding n|' of Lisolvent liank, Trustees for ... ... ... ... 75

Windward Islands, Appeal from ... .. ... ... ... 1014

Witnesses discredited, No ]{eason for Appeal ... ... ... ... 424

Words, " Look,'' me-.ming of ... ... ... ... ... ... 847

„ " Jly Practice " in regard to Education ... ... ... ... 370

„ "Civii KiphtH'' ... ... ... ... ... 133,257

„ " Colonial Legislation ... ... ... ... ... 733

„ "Coinptnbles" ... ... ... ... ... .,. 284

„ "Denominatic '" ... ... ... ... ... ... 363

., "Direct Tax" ... ... ... ... ... ... 115

„ " Exclusive " as regards Kducation ... ... ,.. ... 332

„ „ „ Liquor ... ... ... 67, 165, 199

,, '' Executive Power '' ... ... ... ... ... ... 7

„ -'Extend Hi ;xnd," sec. 02, .sub-sec. 10, Examined ... ... ... 227

„ General Power overriding particular Power ... ... ... 48

„ "(foo<l Government of " ... ... ... ... 43,261

„ " Oovemor-Oeneial '' ... ... ... ... ,., ... g

„ " Income " Taxation ... ... ... ... ... ... 7fl

„ " Logislutivo Power ... ... ... ... ... ,., n

„ "Licensing"... ... ... ... ... ... ... ir,o

„ " Lieutinant-Qovornor " ... ... ... ... ... 7

„ "Municipa! Institutions " ...' ... ... ... ... 187

„ " OverlM)rne," whether Provincial licgislation is, by Dominion 48, 49

" Pnrliiiment " ... ... ... ... ... 11,1088

,, " Peacj, Or'^nr, and Good Government ... ... ... 1042,1067

„ " Prol ibitif n " ... ... ... ... ... 100,1042

,, " Pub ic Lands ... ... ... ... ... ... 123

„ " Projerty and Ci il Rig; Is " ... ... ... ... 133,267

„ "Quecu" ... ... ... ... ... ... ... 2

,, "Kever'" ... ... ... ... ... ... ... 613

„ "Senate" ... ... ...Il,il2

,, " .'<cttle!<niit ami Inniigration " ... ... ... ... 90

Wreck and iSulvag". See " Merchant Shipping."

PAOB
... 805
619, 524
... Of.
... 76
... 76

2
... 347
... 1014
... 05
... 611
... 413
... 1009
... 1014
... 74
... 361
... 161
... 56
... 14G
... 159
... 410
... 126
... 661
... 903
... 75
... 1014
... 424
... 847
... 370
133,257
... 738
... 284
... 363
... 115
... 332
i7, 166, 199

... 227

... 48

43, 261

... 76

.,. If.O

... 187

48, 49

n, 1088

1042, 1067

190, 1042

... 123

133,267

2
... 513
...ll,il2
... 90

INDEX

Writs fop first Klcctions

Wrongs ''y Governor, Liability to bo Sued

11B6

FAOB

Yearly Session of liCRislutivo Assemblies
Yukon, Now rrovincial District created

40
664

Zanzibar, Appenl from
Zululxnd, Aimal from

1014
1014

■•^^•ff^mmm

KYHK AND SI'dTTISWOODK,

Jlcr Majenlu's I'rintert,

DOWNS I'AIIK llOAn, IIAlKNKV, V.K.

.1 |»<ij(— nT tmrtritr-

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