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smnFiD Lfliu LiBiRy
HISTORY
OF THE
Court of Chancery
IN Nova Scotia
j\ Or H
^ 1 ^
BY ,. /
Hon. Charles J. Townshend,
One of the Judges of the Supreme Court of Nova Scotia,
L TORONTO :
the CARSWELL CO., LIMITED,
1900.
HISTORICAL ACCOUNT
OF THE
COURTS OF JUDICATURE IN NOVA SCOTIA.
rri HE object of this paper is to present an outline of the
-■- history of the several courts of justice both civil and
criminal which have administered the laws of this Province
from its earliest settlement to the present day — to trace the
origin of their jurisdiction — to follow in historical sequence
their growth and development; to mark the various changes
and modifications in their constitution and procedure, and
to note some of the peculiarities of our judicial system. This
information is to be found principally in the archives of the
Province, which, owing to the care of the late Dr. Aikins
have been preserved and arranged in an accessible form.
Too much credit cannot be given to that learned and hon-
oured Nova Scotian for the zeal and fidelity with which he
performed that useful work.
I take more pleasure in publicly bearing testimony to his
honourable character, and accurate work, because not long
since both were violently assailed in a work which largely
dealt with his labour in connection with the Provincial
Archives. No one who knew that venerable and highly
esteemed gentleman would for a moment credit such aspep-
sions, but with the outside world such slanders uncontra-
dicted might have some weight.
In these archives are to be found the Eoyal Commissions
to our early Governors, the Eoyal Instructions under which
they acted^ their voluminous correspondence with the Lor^s
Historical Account of the Courts
r
of Trade, at that period in charge of colonial aflEairs in Eng-
land, the Statutes, Orders and Eegulations passed before
the Legislature was first convened by the Governor and
Council in carrying out these instructions. All these must be
consulted, and, lastly, the many volumes of statutes enacted
by the first and succeeding Legislatures in order to obtain
a clear and connected view of the origin and evolution of our
Courts of Justice. For these reasons it is not possible to
vouch for the absolute accuracy in all details of the account
I have ventured to give in these pages. I trust at least
material has been brought together which may aid some
future student of the subject in pursuing his investigations.
Prior to the landing of Cornwallis and his band of im-
migrants, the seat of government was the ancient town of
Annapolis Eoyal, then garrisoned by British soldiers under
Paul Mascarene. The executive government, both civil and
military, was administered by him in conjunction with a
council composed of ofiicers of the army then on the station.
Murdoch in his Epitome of the Laws of Nova Scotia tells
us : " From the acquisition of Nova Scotia in 1713 till 1749
a kind of civil government existed at Annapolis in the title
of Governor held by the commanding officer of a regiment
stationed there. He had also a few councillors, such as his
major and senior captain to assist him, but his post was a
little village, and the French Acadians allowed all their
affairs to be managed by their cures, having among them
neither magistrates, lawyers, nor any kir^ of civil officers.
The English did not attempt colonization here till 1749,
when the appointments of Governor, Lieutenant-Governor
and Councillors were conferred on the commander of the
troops, and principal colonists at Halifax, who erected Courts
of Justice, and passed ordinances, and under their rule the ^
colony v^as managed until 1758 " {a).
This statement is not quite accurate, perhaps I should
say does not fully present the position of matters. On i\3-
ference to Calnek's History of the County of Annapolis at
(a) Vol. I, p. 59.
>i-'
of Judicature in Nova Scotia.
page 69, I find the following : ^^ The year 1721 was marked
by the establishment of a Court of Judicature at Annapolis.
At a meeting of the Council held on the 10th day of April
it was resolved ^ That the Governor and Council do sit as a
General Court or Court of Judicature four times a vear.'
They then appointed the first Tuesdays in February, May,
August and November for the sittings of the Court. It like-
wise appears that in March, 1727, they issued the first com-
mission of peace in this province, by which Adams, Skeene
and Shireff were appointed Justices of the Peace to form a
civil court, their judgment to be reported to the Lieutenant-
Governor for confirmation."
The Court so constituted exercised both Civil and Crim-
inal jurisdiction, as we find reports of several cases heard
and decided by them. One is so curious and interesting
that I extract from the same volume an account of the trial
and punishment. "It was in this year, also," says the
author, " that a Council was held in the house * of John
Adams to consider a complaint made by Governor Arm-
strong against Eobert Nichols, his servant, for an assault
upon him made at Canso nearly a year before. He was
found guilty and sentenced as follows: ^You, Robert
Nichols, being found guilty of the crime wherewith thou
art charged by the Honourable Lawrence Armstrong, Lieu-
tenant-Governor and Commander-in-Chief of this His
Majesty's province of Nova Scotia, the punishment therefor
inflicted on thee is to sit upon a gallows three days, half an
hour each day, with a rope about thy neck and a paper on
your head whereon shall be wrote in capital letters 'Au-
dacious villian,' and afterwards thou are to be whipped at
a cart tail from the prison to the uppermost house on the
cape and from thence back again to the prison house, re-
ceiving each hundred paces five stripes upon your bare back
with a cat o* nine tails, and then thou art to be turned over
for a soldier."
In 1732 the same Court tried and decided a suit be-
tween Joseph Jennings and William Winnett respecting the
ownership of a house and premises. At this trial we have
/
/
Historical Account of the Courts
the first instance of a lawyer practising his profession in the
province, by the name of Eoss. In all probability this gen-
tleman was the progenitor of the many distinguished law-
yers who have adorned our judicial annals.
In August, 1734, an action for slander was tried in which
Mary Davis was plaintiff and Jane Picot, wife of Louis
Thibault, was defendant. The decision was in plaintiff's
favour, and the unfortunate defendant was sentenced " to be
ducked on Saturday next, 10th inst. at high water,'^ — no
light punishment in view of the muddy waters of Ann-
apolis. At the instance, however, of the plaintiff, this pun-
ishment was commuted to publicly asking her pardon at the
church door.
Matthew Henry was convicted before this Court of lar-
ceny and sentenced to receive fifty lashes on his bare back
and to return the money.
Among the magistrates and officers appointed to conduct
the proceedings of this Court I find the names of several
French Acadians, which would indicate that the quarrels
and litigation between these people were not exclusively
settled by their cures. Early accounts represent them to
have been of a very litigious character, and not that sweet
peace-loving people so celebrated in modern literature.
The foregoing is sufficient authority for the statement
that Courts of Judicature of some description existed at the
date of Cornwallis' arrival in June, 1749. From that
time all jurisdiction so exercised must have ceased, and for
the foundation of our judicial system we must look to the
commission of Cornwallis and the acts and ordinances of his
Council passed before the first House of Assembly met,
1758, and the Royal Instructions conveyed to him and his
successors.
The commission appointing the Hon. Ed ward Cornwallis,
Governor of Nova Scotia bears date 6th May, 1749. He
arrived in Halifax on June 21st following in the sloop of
war " Sphinx,'^ and immediately summoned Colonel Mas-
carene from Annapolis with five of his Council to meet at
of Jfudicature in Nova Scotia, 7
Halifax for the purpose of constituting the government of
the colony. On Friday, July 14th, the new Council were
appointed and sworn into office, and a Council was for the
first time held on board tlie transport " Beaufort." Their
names were Paul Mascarene, John Gorham, Benjamin Green,
John Salisbury and Hugh Daudin, and on the 17th July, at
another meeting, Wm. Steele was appointed and sworn in
on the 27th July, Peregrine Thomas Hopson; on the 28tli
July, Eobert Ellison and James Frances Mercer were added,
and on the 31st July John Horneman and Charles Law-
rence. Edward How was also sworn in on the 13th of Au-
gust. These were the men in conjunction with Cornwallis
who took the first steps in the formation of the judicial sys-
tem of our province.
On the 18th of July the Governor-in-Council made the
first appointment of Justices of the, Peace for the township
of Halifax as follows: John Brewse, Eobert Ewer, John
Collier and John Duport.
Cornwallis' commission conferred very extensive and
necessary powers. We are not at present concerned with any
except those relating to the administration of justice and the
making of laws. That part reads as follows: " And for the
better administration of justice and the management of the
public aifairs of our said province, we hereby give and grant
unto you the said Edward Cornwallis full power and au-
thority to choose, nominate, and appoint such fitting and
discreet persons as you shall either find there or carry along
with you, not exceeding the number of twelve, to be our
Council in said province — as also to nominate and appoint
under your hand and seal all and such other officers and
ministers as you shall judge proper and necessary for our
service and the good of the people whom we shall settle in
said province until our future will and pleasure shall be
known. . . .
" And likewise that you take the usual oath for the due
execution of the office and trust of our Captain General and
8 Historical Account of the Courts
Govemor-in-Chief of our said Province for the due and im-
partial administration of Justice. . . .
"And we do give and grant unto yo.u full power and
authority, with the advice and consent of our said Council
from time to time, as need shall r^^quire, to summon and
call general assemblies of the freeholders and planters within
your government according to the usage of the rest of our
colonies and plantations in America, and we do by these
presents give and grant unto you the said Edward Corn-
wallis full power and authority, with the advice and counsel
of our said council, to erect, constitute and establish such
and so many courts of Judicature and public justice within
our said province and dominion as you and they shall think
fit and necessary for the hearing and determining of causes
as well criminal as civil according to law and equity and for
the awarding of execution thereupon with all reasonable
and necessary power, authorities, fees and privileges be-
longing thereunto, as also to appoint and commission fit per-
sons in the several parts of your government to administer
the oaths mentioned in the aforesaid Act entitled ^ An Act
for the Security of His Majesty's Person and Government,
and the succession of the Crown in the heirs of the late
Princess Sophia being Protestants, and for extinguishing the
hopes of the pretended Prince of Wales and his open and
secret abettors,' as also to tender and administer the afore-
said declaration unto such persons belonging to the said
Court as shall be obliged to take the same.
"And we do hereby authorize and empower you to con-
stitute and appoint Judges, and in cases requisite, com-
missioners of Oyer and Terminer, Justices of the Peace, and
other necessary oificers and ministers in our said Province
for the better administration of Justice and putting the law
in execution, to administer or cause to be administered unto
them such oath or oaths as are usually given for the due
execution and performance of offices and places and for the
clearing of truth in judicial cases. ...
of Judicature in Nova Scotia. 9
And that you the said Edward Cornwallis, with the ad-
vice and consent of our said Council and assembly, or the
major part of them respectively, shall have full power and
authority to make, constitute and order laws, statutes and
ordinances for the public peace, welfare and good government
of our said province, and the people and inhabitants thereof,
pnd such others as shall resort thereto, and for the benefit
of us, our heirs and successors, which said laws, statutes and
ordinances are not to be repugnant, but as near as may be
agreeable to the laws and statutes of this country of Great
Britain."
From the language of this commission the full and ex-
tensive powers conferred upon the Governor and Council are
easily gathered. Such wide and plenary jurisdiction was a
necessary incident to the founding of a new colony, which
Nova Scotia was, so far as the English settlement was con-
cerned. It is further to be borne in mind that, with the
exception of the garrison at Annapolis, no English settle-
ment then existed, and that the population of other parts of
the province consisted of French Acadians and Indians. No
division of the province into districts or counties had taken
place, and such ordinances and regulations as were made,
referred principally to the town of Halifax, although the
jurisdiction extended to the whole province.
The next branch of our enquiry is to ascertain how these
powers were exercised. At the first meeting of Council on
July 14th, 1749, his Excellency and the Councillors took and
subscribed the following oath, which is termed on the record
of the Council, " An Oath for the Impartial Administration
of Justice " — " I , do swear that as a member of
the Supreme Court of Jurisdiction, I will always give my
judgment impartially, and to the utmost of my skill and
knowledge according to justice, right and equity, so help
me God."
Such was the first Court of Judicature in this province,
the powers of which were exercised by the Governor-in-
Council under the title of the ^^ General Court." Of the
10 Historical Account of the Cowrta
gentlemen who composed this Court, some were eminent in
the early settlement of the province, but, so far as my en-
quiries have gone, I have not found that any of them were
trained lawyers except Duport.
Having assumed the functions of a tribunal of Civil and
Criminal Jurisdiction, they were soon called upon to act.
The first trial which took place before the Court was that of
Peter Cartell for murder. On the 28th August, 1749, at a
meeting of the Council, his Excellency read to the Council
that article of His Majesty's Instructions relating to the
general Court, and proposed that the same be held as soon
as possible for the trial of all persons in custody, and par-
ticularly Peter Cartell for the murder of Abraham Goodside
on the 26th inst. Ordered that the Secretary publish an
advertisement that the General Court will assemble on Thurs-
day morning at ten o'clock at the Storehouse to try and
determine all causes, civil or criminal, that shall be brought
before them.
Ordered that the Provost Marshall be required to sum-
mon twelve from each quarter of the town of Halifax to at-
tend the General Court as jurymen.
As this was a trial of some importance and the first one
in our annals, I give some further details taken from Mur-
doch's History, Volume II., page 156. He says: *^One
Peter Cartell had killed Abraham Goodside, the boatswain's
mate of the 'Beaufort* by stabbing him, and had also
wounded two other men. The Governor-in-Council sat as a
General Court to try him. On 31st August, 0. S., a grand
jury found a bill against him, a petit jury found him guilty
of murder and he was banged under warrant from the Gov-
ernor, 13th September, 1749. There was a tradition that a
large tree was used instead of a gallows in the earliest years
of Halifax. This unhappy child of the forest stood near
the market square."
Governor Cornwallis in a letter to the Duke of Bedford,
dated 11th Sept., 1749, says: "A general Court was held
the 31st August in one of the storehouses for the trial of
of Judicature in If ova Scotia. ll
one Peter Cartell for murder. The Saturday before he had
stabbed the boatswain's mate of the ' Beaufort/ who died
upon the spot, and wounded two men that endeavoured to
seize him. I enclose an account of the trial, having en-
deavoured to keep as near the English custom as possible.'*
Archives, page 587.
The Lords of Trade in acknowledging this letter, 16th
Oct., 1749, say: ^^ Your method of proceeding in the trial of
Peter Cartell for murder was very regular and proper, and
will have a good effect, as it will convince the settlers of the
intention of conforming to the laws and constitution of the
mother country in every point/'
This trial, as stated by Cornwallis, appears to have been
conducted in accordance with English law and to have pro-
ceeded on the well-known principle that the colonists take
with them so much of the common law of England as is suit-
able to their condition and circumstances. Up to this date
no laws or ordinances appear to have been enacted or made
by the Governor and Council.
I append hereto the indictment in this case, which
minutely follows the old form then used in such matters:
The King
a/fainst
Peter Cautblt.
The Town of Halifax in Nova Scotia, to witt,
The Jurors for the Lord our King upon their oath do
present that Peter Cartell of sd. town of Halifax, settler, not
having the fear of God before his eyes, but moved and se-
duced by the Instigation of the Devil on the twenty-sixth
day of August and in the twenty-third year of the reign of
the sd. Lord the King about five of the clock in the after-
noon of the same day at Halifax afforsd. with Force and
Arms in and upon one Abraham Goodsides,, mariner in the
Peace of God and of the Lord our King then and there
being, made an assault and most traytorously, feloniously
and voluntarily and of his malice forethought, struck and
12 Historical Account of the Courts
wounded the said Abraham Goodsides at Halifax afforsd.
with a knife the value of twopence, which the said Peter
Cartell then and there had and held in his hand and feloni-
ously and of his malice forethought gave the sd. Abraham
Goodsides one mortal wound with the knife afforsd, and
upon the left side under the lays of the Depth of four inches
and of the Breadth of one inch, of which said mortal wound
the sd. Abraham Goodsides instantly dyed, and so the said
jurors and on their oath say that the said Peter Cartell the
Day and Year afforsd. the said Abraham Goodsides in man-
ner and form afforsd. of forethought malice most traytor-
ously, feloniously and voluntarily killed and murdered
against the Peace, Crown and Dignity of our Sovereign Lord
the King and contrary to the statute in that case made and
provided. In witness whereof the sd. jurors have hereunto
sett their hands this thirty-first day of August in the Year
of our Lord one thousand seven hundred and forty-nine.
Jos. Fairbanks, John Aubony,
Jn. Clark, William Jeffray,
John Steinfort, R. Reeves,
Henry Windell, John Endy,
L. Hays, G. Davis,
G. Hicks, Tho. Rust,
Richd. Catlierwood, Bn. Gerrish,
Chas. Maxwell, Thos. Lewis,
Geo. Nagel.
From the correctness with which it was drawn and the
regularity of the Court proceedings it seems the Court must
have been under the guidance of a lawyer.
On Sept. 6th, 1749, the first civil action came before the
Council. Elijah Davis petitioned for satisfaction from
Ephriam Cook, Master of the " Baltimore," for damages done
to his schooner by said Cook, who cut off the bowsprit when
by accident his schooner was foul of his. Cook's, ship. The
witnesses on both sides were heard, when from the record it
appears the Court were fairly at a loss how to decide from
their ignorance of nautical terms. They suggested that the
of Jvudicaiure in Nova Scotia. 13
dispute be referred to two ship masters, who, in event of dis-
agreement were to appoint an umpire whose decision was to
be final. This was agreed^ to and an award was made against
Cook. As Cook refused to comply with the decision, the
matter was again brought before the Court, who ordered that
Cook be summoned immediately to answer for want of re-
spect and contempt. Cook attended and alleged that he had
no thought of any contempt, but that he could not answer it
to his owner if he paid the money without being distrained.
Thereupon it was ordered that a warrant be issued to the
Sheriff for execution of the award and order, and further
resolved that E. Cook ought to ask pardon of his Excellency
for having treated his order disrespectfully, and that he
acknowledge his fault in writing. ^^Till he has so done
be he ordered not to set his foot on the shore."
Following this, on Nov. 14th, 1749, we have the first
action concerning real estate in which Beardsley Glazier
claimed that Samuel Shipton had taken possession of lot
No. 25 which had been granted to the complainant, and had
built a house on it. Shipton, being summoned, complained
that Mr. Brewse, the Engineer who had the laying out of the
lots, had given him the choice of lot 25 or No. 3; that he had
given up No. 3 to Mr. Crosby. The regkter being sent for,
it appeared that Shipton^s name had been erased out of No.
3 and Crosby^s inserted. This the Council forbade beinq;
done, and that the transfer were only to be made by deed.
The parties in the meantime settled the dispute by Shipton
giving up the lot to Glazier, and Glazier agreeing to give
Shipton materials of all kinds equal to those he had put in
the house he had built on Glazier's lot.
At a meeting of Council on the 20th Nov., 1749, comes
the sequel. Samuel Shipton now petitions to have lot No.
3 on which he had built before he built on No. 25 and given
to Crosby, to be restored to him. He asserts that he never
entirely abandoned No. 3 to Crosby, but only on condition
that he should be established on No. 25. The matter being
heard before the Council, Crosby denied the condition, and
produced several witnesses in support of his contention that
14 Historical AccouTit of the Courts
there was no such condition. Shipton being called on for
his testimony in support of his case, said the only person
present was his wife, and desired that she might be heard,
which was agreed to. She was heard and corroborated her
husband as to the condition. The following is the judg-
ment of the Court. "It is the unanimous opinion of the
Council that Mr. Shipton has produced no sufficient proof
of the agreement being conditional. On the contrary, from
the evidence examined, the strongest presumption appeared
that Mr. Shipton had entirely relinquished the lot No. 3 to
Mr. Crosby, and therefore the Council do adjudge the said
lot No. 3 to Mr. Crosby.^'
I have given these three instances of the exercise of
jurisdiction by the General Court in Criminal and Civil mat-
ters to show the extent of it, and the methods of procedure
adopted, perhaps, in some respects, rather arbitrary and ir-
regular, but on the whole justice and equity prevailed, and
law and order was maintained in the infant settlement.
From an entry in the Council Records dated Nov. 20th,
1749, it is evident that among the settlers there must have
been some hard characters. The record says: "The Coun-
cil, being informed that there had been for some time several
prisoners in jail for crimes alleged against them, resolved to
hold a General Court on Tuesday the 28th inst.'^ It was also
resolved that the General Court be held every year, one on
the last Tuesday of April, and one on the last Tuesday of
October. This was the beginning of regular sessions of the
Court, and it is worth noticing that we have retained up to
the present day the same periods for the sittings of the Su-
preme Court in Halifax.
On December 27th, 1749, I find another instance of the
sitting of this Court for the trial of crimes: "The Council
being informed that the prisoners in jail for killing cattle
upon Comwallis Island had petitioned for their trial, resolved
that a General Court be held on Thursday, 4th May.'*
Again, at a meeting of Council 27th May, 1750, we find
the following record: "His Excellency laid before the
of Judicature in Nova Scotia. 15
CouBcil the information he had received from Major Law-
rence that he captured one Joseph LeBlanc, who was evi-
dently the principal instrument of the enemy in those parts,
who had confessed the whole. His Excellency acquainted
the Council that he had a warrant ready to send to Major
Lawrence for the immediate execution of Joseph LeBlanc,
but desired to know their opinion, which would probably have
the greatest effect, a sudden example of justice, or a fair trial
before the General Court with the other prisoners now in
custody at Minas. Resolved that Joseph LeBlanc (Labra-
dor) and the two men taken in the bay by Hill, Jean Bathreo
and Pierre Rembbiro, be brought to their trial before the
General Court in the beginning of August next/'
On the 30th July, 1750, Resolved to hold a General
Court for the trial of the French prisoners and the criminal
cases, and that no civil cases be brought before this Court.
I have not followed the record to discover the fate of these
, prisoners, as not especially pertinent to the object of this
paper.
On the 21st August, 1750, the Council were called upon
to exercise a different jurisdiction, that is to say to issue a
writ of Prohibition to the Admiralty Court not to try therein
a cause between Groves, Master of the sloop " Sally,'' and
one Hurd, a factor of Mr. Thomas Gunter of Boston. Hurd
contended that Groves had not fulfilled his contract which
was made within the body of a county, and so ought to be
tried before the General Court and not in the x\dmiralty.
Counsel being heard for both parties, the Council were
unanimously of the opinion that upon the face of the libel
no reason appears as a sufficient ground for granting a pro-
hibition.
From this it is evident that the Court of Vice- Admiralty
must have been constituted very shortly after Comwallis
arrived, but as no record of the fact is to be found in Ihe
minutes of Council, I assume such jurisdiction was either
exercised directly under an Imperial Commission, or that
the Governor by virtue of his commission as Vice-Admiral
16 Historical Account of the Courts
appointed the Judge as his delegate. I find on reference
to the oldest Admiralty Record Book now in the archives,
that the Hon. Edward How was the first Judge of the Court
of Vice- Admiralty, that Charles Morris was Registrar, and
William Chapman, Marshall. Benjamin Green was Surrogate
Judge appointed by How,, and Hinchelwood was one of the
Proctors. Subsequently Green became Judge. The first
recorded case is one by Michael Henley v. Ephriam Cook,
tried October, 5th, 1749, four months after the settlement
of Halifax.
That the Admiralty Court was not idle is shown by an
entry of Oct. 11th, 1750, as follows: ''Advised that Otis
Little, Esq., acting as King^s Attorney, be directed to ex-
amine the depositions taken relating to the French brig lately
brought into this port by His Majesty's ship " Albany,'* and
make report what proceedings relating to the said Brigt. are
legal and regular according to the treaties subsisting between
the Crowns of Great Britain and Prance, and British Act
of Parliament. On Oct. 15th, 1750, Otis Little makes a
report to the Council, and it was directed that the Brigt. be
proceeded against in the Court of Vice- Admiralty for breach
of the acts of Trade.
On the 15th May, 1750, we find the Council called upon
to act judicially in another capacity, that is to say as a Court
of Marriage and Divorce. Lieut. WiHiam Williams com-
plained that his wife had been guilty of adultery, and prayed
that she might be brought to trial, and if his allegations
were made good, to grant him a divorce. The question was
put whether the Council could try such cases as properly
beloSging to the Spiritual Courts. It was declared in the
affirmative. The parties with a number of witnesses were
heard before the Court and the wife found guilty. The
divorce was unanimously granted. The Secretary was ordered
to have an instrument of divorce drawn up by persons con-
versant in the Spiritual Court by which Lieut. Williams shall
be at liberty to remarry, but Amy Williams should not have
power during the said William's life. The said Amy Wil-
liams was further ordered to quit the province within ten
of Judicature in Nova Scotia. 17
days. The mode in which the Court sitting as a Court of
Marriage and Divorce exercised their powers on this occa-
sion was subsequently disapproved of by the Home authori-
ties as not conformable to English law and practice then
prevailing.
There are numerous other instances of trials before the
General Court in all kinds of cases, both criminal and civil,
which it would not be useful to notice at any greater length.
The foregoing have been given as illustrations of the pro-
ceedings in the early judicial annals of the Province to
indicate the mode in which the Courts wielded their author-
ity and the extent of the jurisdiction they assumed. Those
who may be curious on the subject will find many others,
and some quite interesting, recorded at length in the early
record books of the General Court now preserved in the
archives.
The chief ministerial oflBcer of the Court at this period
was styled Provost Marshal, and not High Sheriff as now.
He executed by himself and his deputies all processes and
orders of the Courts not only in Halifax, but all over the
Province, and continued to do so until an Act of the Legis-
lature was passed in 1778, assented to in 1780, abolishing his
office and providing for the appointment of sheriffs in each
of the counties. From the proceedings of the House of
Assembly, I gather that there was great oppression and pos-
sibly extortion in the exercise of the office which led to loud
complaints. The British authorities, however, listened to
the petition of the Provost Marshal Fenton, and would not
allow the Act until a pension was provided for him out of
the Provincial revenues. Chapter II., Statutes of 1778, in
the preamble, explains the reason for the change from Pro-
vost Marshal to Sheriffs.
At the first institution of the Courts the officer now
known as Prothonotary and clerk of the Crown was styled
the Chief Clerk. I have not ascertained precisely when the
change in title was made, possibly after Chief Justice Bel-
cher was appointed. The title is peculiar to INTova Scotia, as
I do not find among the other English speaking provinces
18 Historical Account of the Courts
that it has been adopted, and it was no doubt so changed to
correspond with similar title given to the Chief Clerks in
the Courts of the King^s Bench and Common Pleas in Eng-
land. A Mr. Thompson enjoyed the emoluments of the
office and resided in England. His duties were performed
by Mr. Nutting as deputy. On the death of Thompson, Mr.
Nutting succeeded to his place, and at that time and until a
comparatively modern date all the country Prothonotaries
were simply his deputies.
This was not changed until the year 1853, when an Act
was passed by which "the office of Prothonotary of the
Supreme Court," and also the office of Clerk of the Crown
for the whole province was abolished and the Govemor-in-
Council was authorized to appoint a Prothonotary and Clerk
of the Crown for each county in the province, but reserving
a certain proportion of the fees for Mr. Nutting, who held
his office under letters patent. This reservation of course
ceased at his death, and all the Prothonotaries and Clerks of
the Crown are entitled to retain all fees of office.
From what has already been said, it has been shewn that
at the first settlement of the province the Governor and
Council were the supreme legal tribunals, and further held
both legislative and executive authority. That among their
first acts was one to qualify themselves for their functions
by taking the appointed oaths of office, and subsequently
entering upon their duties by trying such civil and criminal
cases as came before them, and further that they conducted
their proceedings on the basis of English law and precedent.
But, in the nature of things, it was impossible in view of
other important business they could continue to transact all
the judicial affairs arising in the Colony. I have already
mentioned the names of several persons who were com-
missioned as Justices of the Peace. Their authority at that
time was similar to that belonging to the office in England,
and did not extend, as in later times, to the trial of civil
causes or actions for the collection of debts not exceeding a
specified sum. It may be well to mention here that Jus-
tices' civil jurisdiction was first conferred by Act of the
*/
of Judicature in Nova Scotia, 19
Legislature 14 & 15 Geo. III. cap. 15, Acts of 1774, and has
since been extended largely.
On the 6th December, 1749, the Council first turned
their attention to the subject of laws for the Province and
for regulations for the General Court and County or Inferior
Courts. Messrs. Green, Salisbury and Davidson were named
as a committee to examine the laws of the Plantations and
the regulations with regard to them and report. On the
13th December they presented the result, which was read
before the Council. The record says: " The report being
read accordingly, was approved by the Council, nem. con.,
and ordered to be entered in the Council books immediately
after the 9 articles of His Majesty's instructions relating to
the Courts of Justice> which, by article 82, are ordered to
be made public, and registered in the Council, books.''
His Majesty's instructions so ordered to be registered
are of considerable length. The following is the report:
^^The Committee are of opinion that the form of Gov-
ernment in Virginia, being the nearest to that of Nova
Scotia, the regulations there established for the General
Court and their County Courts will be the most proper to be
observed in the province. The Committee have therefore
collected from the laws of Virginia the following regulations
with regard to the General Court and the County Courts,
and the forms to be observed therein.
THE GENERAL COURT.
Article 1st. For the more easie and regular Prosecution
and Determination of suits and actions in the General Court,
the Committee humbly propose that it be established and
declared that all Original Process (either by writ, summons,
or other means to bring any person to answer any action,
information, bill or plaint in the General Court, and all
executions and all attachments awarded by the General
Court, subpoenas and all other process whatever belonging
to any matter prosecuted in the General Court be issued
from the Secretary's office signed by the Clerk of the Court
and also be returned unto the same office.
20 Historical Account of the Courts
2. That no person shall take original process for the
trial of any suit in the General Couri: of less value than ten
pounds sterling on penalty of having such suit dismist and
paying costs.
3. That no memher of His Majesty's Council of this pro-
vince be sued in an Inferior Court, but that all actions against
them shall take their risk and be prosecuted before the
General Court, and the process be the same as in Virginia.
4. That all Process whatever returnable to the General
Court be executed at least ten days before the day mentioned
therein for the Return.
5. That Criminal causes be tried the first day of the
sitting of the General Court, and no writs be returnable that
day.
6. That on the commitment of any person for any capital
or criminal offence, the Magistrate making such commitment
shall cause all the witnesses of the fact that shall come to
his knowledge to enter into Recognisance of their appear-
ance to give evidence viva voce upon the trial of such of-
fender, all which Recognisance to be delivered to the Clerk
three days before the Court sits.
7. That the Clerk of the General Court shall not issue
writs, subpoenas or other original Process for more than
twelve actions returnable to any one day of the General
Court, neither shall he issue such Process returnable to any,
unless they shall have theretofore issued Process for twelve
suits returnable to every proceeding day of that General
Court.
8. That if upon issuing of a Writ to the Provost Mar-
shal for attaching the body of any person to answer to any
suit, if the Provost Marshal shall return bail taken for his
appearance and such person fail to appear, then judgment
shall be given against the Bail, and if the Provost Marshal
shall not return good Bail and the Defendant shall fail to
appear, then Judgment shall be given against the Provost
Marshal. Provided always that the Bail or the Provost
Marshal have liberty to make the same Defence that the
of Judicature in Nova Scotia, 21
Principal defendant might have had. And provided like-
wise that upon the motion of the Bail or Provost Marshal,
it be a rule of the Court to order an attachment to issue
against so much of the estate of the Defendant as shall be
of value sufficient to satisfy such judgment and all costs
and charges.
9. That in all cases where witnesses are to appear at the
General Court, a summons be issued for the same by the
Clerk of said Court, especially mentioning the time and place
where the witnesses are to appear and the names of the parties
to the suit wherein they are to give evidence and at whose
request they are summoned.
10. That a person failing to appear on such summons be
fined in five pounds sterling.
11. That if it appear by certificate from a Justice of the
Peace that a Witness is incapable of appearing by reason of
age, sickness or other lawful Disability, in this case the Court
shall commission one or more persons to take such Person'is
affidavit. Provided always that such commission be made
known to the other party.
12. That if any person summoned as a witness upon
appearance before the General Court or before persons
appointed (as above) to take affidavits, shall refuse to give
evidence upon oath, that such person be immediately com-
mitted to the Common Goal there to remain without bail or
mainprise until willing to give evidence upon oath.
13. That no writ of any kind be served against any per-
son summoned as a witness during his attendance thereupon,
or in the time of his going to or returning from such at-
tendance.
14. That Appeals from the County Court be heard the
third day of sitting.
15i That upon an appeal in any personal action, if the
sentence appealed from affirmed in the General Court, then
the appellant shall besides the principal sum expressed in
the sentence, pay for the use Poor a Fine not exceeding 15
per cent, upon the principal sum and costs according as the
22 Historical Account of the Courts
Court shall think fit, and upon appeals in real actions, in-
stead of 15 per cent, where the sentence appealed from is
affirmed, the applicant shall pay the Poor a sum not exceed-
ing ten pounds sterling.
That for the more easie and regular prosecution of all
cases in the General Court, and for the more exact entering
of the Judgments of the Court and for the preservation of the
Records thereof, the following Rules be observed:
Rule 1. That every Plaintiff shall file his Declaration
three days before the day whereto the Writ is returnable.
If no declaration is filed before that time, but yet be filed
before the day of the Return, the Defendant shall of course
have one day more than could otherwise have been allowed,
and if no Declaration is filed before the day of the return,
then the plaintiff shall be nonsuit.
2. If the plaintiff fails to appear and prosecute the suit
he shall be nonsuit.
3. That the Defendant prepare his Plea in writing to
the Declaration of the Plaintiff.
4. That the Clerk carefully preserve the Declaration,
Pleas, and all other Papers, and that they be all filed to-
gether in the office.
5. That in all cases where the title of any estate in Land
is determined, the pleadings shall be all in writing and shall
be entered at large with the Judgment thereupon in par-
ticular Books set apart for that purpose only.
6. That all proceedings in Pleas of the Crown Criminal
cases and matters relating to the Public Revenues be re-
corded in Particular Books set apart for that purpose.
7. That for the more regular Prosecution of cases Two
or more Attorneys be appointed, sworn and their fees regu-
lated.
8. That every person be allowed to speak himself in his
own cause, or produce one to speak for him, or desire the
Court to name one.
9. That no person take any fee or gratuity whatever for
speaking in any cause.
of Judicature in Nova Scotia. 23
THE COUNTY COUKT.
The Committee humbly proposes that there be estab-
lished a County Court consisting of five or more Justices by
Commission from His Excellency under the seal of the Pro-
vince any thereof which Justices shall be sufficient to hear
and determine all causes which shall belong to such County
Court.
That the Justice of the County Court have full power,
authority and jurisdiction to hear and determine all causes
whatsoever cognizable at Common Law or, except such
criminal causes wherein the judgment upon conviction shall
be for the Loss of Life or member and except the prosecu-
tion of causes to Out-Lawry against any person, and also
except all causes of less value than twenty shillings be de-
clared cognizable and finally determinable by one Justice
of the said County Court.
That the County Court be held monthly the first Tues-
day of every month, and do sit from day to day till all causes
that come before them are determined.
That the first Justice in the Commission be authorised to
call special Court when he thinks necessary for the sake of
merchants and others from distant places, whose stay might
be very prejudicial to their aifairs.
That all original Process and writs of all kinds to bring
Persons to answer any suit or action in the County Court,
and all executions and attachments awarded by the said
Court, shall be issued by the Clerk of the Court, and shall
be again returned to the same office whence they were issued.
That for the more regular granting of appeals from the
County Court, it be declared that when any person prays an
appeal to the General Court such person before such appeal
be granted shall give Bond with good and sufficient security
for the prosecuting the same with effect, and to perform the
judgment of the General Court and to pay Damages if the
judgment of the County Court shall be affirmed, in manner
following, to wit, in all personal and mixt actions the dam-
ages, fifteen per cent, upon the Principal sum and costs
24 Historical Account of the Courts
ordered to be paid by the judgment of the County Court,
and in every Eelation the damage shall be ten pounds over
and above all costs and damages ordered to be paid by the
judgment of the County Court.
That no appeal be granted from County Court to the
General Court for any sum less than five pounds sterling.
That all the Regulations and Rules of Court be the same
in County Court with those formerly mentioned in the
General Court. The following rules to respect both the
General Court and the County Court.
That if any difficulty shall arise in explaining any of the
above rules and regulations that Recourse be had for ex-
planation to the Laws of Virginia, whence most of them
are derived, particularly an Act entitled An Act for estab-
lishing the General Court, pp. 251 to 260, and an Act en-
titled An Act establishing County Courts, p. 332 to p. 338."
exthact from lloyal insthucnons to peregrine thomas
hopson, captain-general and governor, dated may
7th, 1752.
Manuscript Documents, No. 348.
AND WHEREAS for the Peace, Happiness and Security
of all His Majesty's Subjects within the said Province, and
for the more speedy and easy execution of Justice and Deter-
mination of all controversies and differences, it is necessary
that Courts of Judicature and publick Justice should be
erected, and also a Judge, or Assistant Justice of the Peace,
Sheriffs and other officers should be appointed according to
the Powers and Directions of His Majesty's Commission
and these Instructions; It is therefore His Majesty's Will and
Pleasure, that one principal Court of Judicature should be
held twice a year or oftener as you shall judge expedient by
the Name of the General Court, and to have Jurisdiction of
all causes Real and Personal at common law above the value
of five pounds, to act as a Court of Chancery, but not with-
out appeal to His Majesty when the matter in Question shall
exceed three hundred Pound Sterling, as also to try all crimi-
nal cases that may come before the said General Court, which
of Judicature in Nova Scotia, 25
said Court, It is His further Will and Pleasure should consist
of the Governor or Commander-in-Chief and the Council of
the said Province for the time being, any five whereof to be a
quorum.
AND IT IS HIS MAJESTY'S FUETHEB WILL AND
PLEASUEE, and you are hereby authorized and required to
constitute and appoint such and so many inferior courts of
Judicature and Justice within the said Province as you by
and with the advice and consent of the said Council shall
judge most proper, as also Judges, Justices of the Peace,
Sheriffs and other Officers and Ministers of Justice; taking
eare that you do administer or cause to be administered
to all and every such Person as are usually given for the
due execution of Offices and Places, and the impartial ad-
ministration of Justice, and in the choice and nomination
of said Judges, Justices, Sheriffs and other Officers; you are
always to take care that they be of good life and well affected
to His Majesty's Government, and of good Estates and abili-
ties and not necessitous Persons.
AND you are to transmit to His Majesty's Commissioners
for Trade and Plantations with all convenient speed a par-
ticular account of all establishments of Jurisdictions, Courts,
Offices, and Officers, Powers, Authoritys, Fees and Privi-
leges granted and settled within the said Province; as likewise
an account of all publick Charges relating to the said Courts
and of such Funds as are settled and appropriated to dis-
charge the same; together with exact and authentic copies
of all Proceedings in such Causes where appeals shall be
made to His Majesty in His Privy Council.
You shall not displace any of the Judges, Justices, Sheriffs
or other Officers or Ministers within the said Province
already appointed, without good and sufficient cause so signi-
fied unto His Majesty's Commisioners for Trade and Planta-
tions; and to prevent arbitrary Eemovals of the Judges and
Justices of the Peace, you are not to express any limitation
of time in the Commissions, which you are to grant to Per-
sons fit for those Employments, nor shall you execute by
yourself or by Deputy any of the said Offices.
26 Historical Account of the Courts
AND you are with the advice and consent of the Council
to take especial care to regulate all salaries and Pees belong-
ing to Places or paid upon Emergencies that they be within
the Bounds of Moderation, and that no exactions be made
on any occasion whatsoever; as also that Tables of all Pees
be publickly hung up in all Places where such Pees are to be
paid, and you are to transmit copies of all such Tables of
Fees to His Majesty's Commissioners for Trade and Planta-
tions, as aforesaid.
AND whereas frequent complaints have been made of
great Delays and undue Proceedings in the Courts of Justice
in several of the Plantations, whereby many of His Majesty's
Bubjects have very much suffered, and it being of the greatest
importance to His Majesty's Service and to the Welfare of
the Plantations, that Justice be everywhere speedily and
duly administered, and that all Disorders, Delays and other
undue Practices in the i^dministration thereof be effectually
prevented; You are particularly required to take especial
care that in all Courts where you are authorized to preside.
Justice be impartially administered, and that in all other
Courts established within the said ProVince all Judges and
other Persons therein concerned do likewise perform their
several Duties without Delay or Partiality.
YOU are to take care that no Court of Judicature be
adjourned but upon good grounds; as also that no Orders
of any Court of Judicature be entered or allowed which shall
not be first read and approved of by the Magistrates in open
Court, which Eule you are in like manner to see observed
with Eelation to the Proceedings of the said Council, and
that all orders there made be first read and approved in
Council before they are enter'd upon the Council Books.
WHEREAS His Majesty is above all things desirous that
all His subjects may enjoy their legal Eights and Properties,
you are to take especial care that if any Person be committed
for any criminal matters (unless for Treason or Felony plainly
and especially expressed in the Warrant of Commitment) he
have free Liberty to petition by himself or otherwise for a
writ of Habeas Corpus, which upon such application shall be
of Judicature in Nova Scotia. 27
granted and served on the Provost Marshal, Gaoler or other
Officer having the custody of such Prisoner, or shall be left
at the Gaol or Place where such Prisoner is confined, And the
said Provost Marshal or other Officer shall within three
days after such service (on the Petitioner's paying the Fees
and Charges, and giving security that he will not escape by
the way) make return of the Writ and Prisoner before the
Judge who granted out the said Writ, and there certify the
true cause of the Imprisonment, and the said Judge shall
discharge such Prisoner, taking his Eecognizance and Secur-
ity for his appearance at the Court where the offence is cog-
nizable, and certify the said Writ & Eecognizance into the
Court, unless such offences appear to the said Judge not
bailable by the laws of England.
AND in case the said Judge shall refuse to grant a Writ
of Habeas Corpus, on view of the copy of commitment, or
upon Oath made of > such Copy having been denied the
Prisoner, or any Person requiring the same in his behalf,
or shall delay to discharge the Prisoner, after the granting
of such Writ, the said Judge shall incur the Forfeiture of
his Place.
YOU are likewise to declare His Majesty's pleasure that
in case the Provost Marshal or other officer shall imprison
any person above twelve Hours, except by a mittimus setting
forth the Cause thereof, he be removed from his said Office.
AND upon the application of any Person wrongfully
committed the Judge shall issue his Warrant to the Provost
Marshal or other Officer to bring the Prisoner before him,
who shall be discharged without Bail or paying Fees, and the
Provost Marshal or other Officer refusing Obedience to such
Warrant shall be thereupon removed; and if the said Judge
denies his warrant, he shall likewise incur the Forfeiture of
his Place.
YOU shall give directions that no Prisoner being set at
large by an Habeas Corpus be recommitted for the same
Offence, but by the Court where he is bound to appear, and if
any Judge, Provost Marshal or other Officer contrary here-
unto shall re-commit such Person so bail'd or delivered, You
28 Historical Account of the Courts
are to remove him from his Place; and if the Provost Mar-
shal or other Officer having the Custody of the Prisoner neg-
lects to return the Habeas Corpus or refuses a copy of the
Committment within six Hours after Demand made by the
Prisoner or any other in his behalf, he shall likewise incur
the Forfeiture of his Place. , '
YOU are to take care that all Prisoners in cases of Trea-
son or Felony have free Liberty to petition in open Court
for their Tryals, that they be indicted at the first Court of
Oyer and Terminer, unless it appears upon oath that the
witnesses against them could not be produced and that they
be tryed at the second Court or discharged, and the Judge,
upon motion made the last Day of the Sessions in open Court
shall discharge the Prisoner accordingly, and upon the re-
fusal of the said Judge and Provost Marshal or other Officer
to do their respective Dutys herein they shall be removed
from their places.
PEOVIDED always that no Person be discharged out of
Prison who stands committed for Debt by any Decree of
Chancery or any legal Proceedings of any Court of Record.
AND for the Preventing of any Exactions that may be
made upon Prisoners, you are to declare His Majestv's
Pleasure that no Judge shall receive for himself or Clerks
for granting a Writ of Habeas Corpus more than two shillings
and sixpence, and the like sum for taking a recos^nizance;
and that the Provost Marshal or other Officer shall ncft re-
ceive more than five shillings for every committment, one
shilling and three pence for the Bond tbp. "Prisoner is to sign,
one shilling three pence for every copy of a Mittimus and
one shilling and three pence for every mile he bringeth back
the Prisoner.
AND further, you are to cause this His Majesty's Royal
Pleasure signified to you by the Nine Articles of Instructions
immediately preceding this, to be made publick and regis-
tered in the Council Books of the said Province.
YOU are to take care that no man's Life, Member, Free-
hold or Goods be taken away or harmed in the said Province
of Judicature in Nova Scotia. 29
under your Government, otherwise than by established and
known Laws, not repugnant to, but as near as may be agree-
able to the Laws of this Kingdom, and that no Persons be
sent as Prisoners to this Kingdom from the said Province
without sufficient Proof of their Crimes, and that Proof trans-
mitted along with the said Prisoners.
YOU are to take care that all Writs within the said Pro-
vince be issued in His Majesty's name.
YOU shall take care with the advice and assistance of
the Council that proper Prisons be forthwith erected and put
into and kept in such a condition as may sufficiently secure
the Prisoners that are or shall be there in Custody.
WHEEEAS Appeals ought to be made in cases of error
from the respective Courts in the said Province unto you
and the Council there in General Court, and in your absence
from the said Province to the Lieutenant-Governor or to the
Commander-in-Chief for the time being, and the said Council
in civil causes, if either party shall not rest satisfied with the
Judgment of you or the Commander-in-Chief for the time
being and Council as aforesaid, His Majestys Will and Plea-
sure is that they may then appeal unto His Majesty in His
Privy Council; Provided the Sum or Value so appealed for
unto His Majesty do exceed three hundred Pounds sterling:,
and that such Appeal be made within fourteen days after
Sentence and good security be given by the Appellant that
he will effectually prosecute the same and answer the con-
demnation, as also pay such Cost and Damages as shall be
awarded by His Majesty in case the sentence of you or the
Commander-in-Chief for the time being and Council be
affirmed; And it is His Majesty^s further Will and Pleasure
that in all cases where by your instructions you are to admit
Appeals to His Majesty in His Privy Council, execution be
suspended until the final determination of such Appeal, un-
less good and sufficient Security be given by the Appellee
to make ample Eestitution of all that the Appellant shall
have lost by means of such Judgment or Decree in case upon
the Determination of such Appeal such Judgment or Decree
should be reversed and Eestitution awarded to the Appellant.
8D Historical Account of the Caurta
EXTRACT FROM ADDITIONAL INSTRUCTIONS TO GOVERNOR
HOPSON, ISTH DECEMBER, 1753.
Manuscript Document No. 348.
George K.
ADDITIONAL INSTRUCTION to our Trusty and
Well-beloved Peregrine Thomas Hopson, Esquire, our Cap-
tain-General and Governor-in-Chief in and over Our Pro-
vince of Nova Scotia or Acadie in America, or to the
Commander-in-Chief of our said province for the time being;
Given at Our Court at St. Jameses the 18th day of December,
1753, in the Twenty-seventh year of Our Reign.
WHEREAS it hath been represented unto us, that the
Method prescribed by the Instructions heretofore given by
Us to the Governors of Our and Plantations in
America, relative to appeals from the Courts there in Cases
of Error, has, by subsequent Regulations which have been
from time to time made by Us in Our Privy Council relative
to such Appeals, become defective and improper. For Remedy
thereof for the future, IT IS OUR ROYAL WILL AND
PLEASURE that you or the Commander-in-Chief of Oui
Province of Nova Scotia for the time being
do permit and allow appeals from any of the Courts of Com-
mon Law in Our said Province unto you or the Commander-
in-Chief and the Council of Our said Province; and you are
for that purpose to issue a Writ in the manner which has
been usually accustomed, returnable before yourself and the
Council of Our said Province who are to proceed to hear and
determine such Appeal, wherein such of Our said Coiu't ....
shall be at that time Judges of the Court
such Appeal shall be so made to you our Captain-General or
to the Commander-in-Chief for the time being and to Our
said Council as aforesaid, shall not be admitted to vote upon
the said Appeal; but they may be neveriheless be present at
the hearing thereof, to give the reasons of the Judgment
given by them in the Causes wherein such Appeals shall be
made; PROVIDED, nevertheless, that in all such Appeals
of Judicature in Nova Scotia, 31
the sum or value appealed for do exceed the sura of three
hundred pounds sterling, and that security be first duly given
by the Appellant to answer such Charges as shall be awarded,
in case the first sentence is affirmed. And if either party
shall not rest satisfied with the judgment of you or the Com-
mander-in-Chief for the time being and of Our Council as
aforesaid. Our Will and Pleasure is that such Party may then
appeal unto Us in Our Privy Council. Provided the sum
or value so appealed for unto Us do exceed five hundred
pounds sterling, and that such Appeal be made within four-
teen days after Sentence, and good security given by the
Appellant that he will effectually prosecute the same and
answer the condemnation, and also pay such Costs and Dam-
ages as shall be awarded by Us in case the sentence of you
or the Commander-in-Chief for the time being and of Our
Council be affirmed; PROVIDED, nevertheless, that where
the matter in question relates to the taking or demanding
of Duty payable to us or to any Fee of Office, or annual Rent,
or other such like matter or thing where the rights in future
may be bound, in all such cases you are to admit an Appeal
to Us in Our Privy Council, altho' the immediate sum or
value appealed for be of less value. And it is our further
Will and Pleasure that in all Cases where by your Instruc-
tions you are to admit Appeals to Us in Our Privy Council,
execution be suspended, until the final Determination of such
Appeals, unless good and sufficient security be given by the
Appellee to make ample Restitution of all that the Appellant
shall have lost by means of such Judgment or Decree, in
case, upon the Determination of such Appeal, such Decree
or Judgment should be reversed and Restitution awarded to
the Appellant.
G. R.
It is most important in many ways to know the source
of much of our judicial procedure which we thus trace back
to the colony of Virginia, at that time under the British
crown. The concluding regulation, in fact, provides for the
guidance of both the General and County Courts, "That
32 Historical Account of the CouHs
if any difficulty shall arise in explaining any of the above
rules and regulations, that recourse be had for explanation
to the Laws of Virginia, whence most of them are derived,
particularly an Act entitled An Act for Establishing the
General Court, p. 251 to p. 2G0, and an Act entitled An Act
Establishing County Courts, p. 332 to p. 338/^ It is re-
markable that in view of the provision respecting the laws
of Virginia, so far as I can ascertain, there is no copy of fhe
Laws of Virginia containing these regulations to be found
either in our Legislative or Law Library. I venture to sug-
gest that an effort be made to secure one.
It should however be mentioned that in the Legislative
Library there is to be found a very old copy of what purports to
be the laws of Virginia, dated 1704, bound in one volume with
the laws of several other English colonies. Although it con-
tains some of the regulations adopted by the 6ovemor-in-
Council it evidently does not give all which are to be found
recorded in the Council Books. I, therefore, assume that
they had been added to, and amended, and that the Com-
mittee of Council made their report from the later laws of
Virginia, not now in the library.
We have now before us a concise statement of the estab-
lishment of the two Courts of Judicature which took cogni-
zance of all business, civil and criminal, with the method of
procedure adopted, and which, with some changes, continued
in force up to the arrival of Chief Justice Belcher, 15 Oct.,
i754, some years after the founding of the settlement, that
is to say the General Court, and as it was at first styled, the
County Court. We know that the Governor and Council
formed the General Court, but it is not quite so clear who
wete first appointed Justices of the County Court, as 1 do
not find any specific appointment in the records in the first
instance to this office. I conclude^ however, with some de-
gree of certainty, that the jurisdiction was assumed by the
gentlemen who were made Justices of the Peace at the meet-
ing of Council, 10th July, 1749. Their names were John
Brewse, Eobert Ewer, John Collier and John Duport. We
find some of these gentlemen subsequently acting in that
of Judicature in Nova Scotia. 33
capacity. Of their personal history I can find nothing re-
corded except short biographical notes in Aikins' Nova
Scotia Archives of John Collier and John Duport. The
Hon. John Collier was a retired officer of the army. He
came out with the first British settlers in 1749, and was soon
after his arrival appointed by Governor Cornwallis a Justice
of the Peace for the new settlement. He was also a captain
of militia. He was appointed a member of Council 27th
January^ 1752. He died at Halifax 1769.
John Duport was an attorney. He came out with the
settlers in June, 1749, and in July following was appointed
a Justice of the Peace. In February, 1752, he was laede
Judge of the Inferior Court of Common Pleas. He per-
formed the duties of Secretary of the Council for many
years. In 1776 he prepared an edition of the laws of the
province, which was printed by Richard Fletcher, King^s
printer in Halifax. Mr. Duport was appointed second as-
sistant Judge of the Supreme Court of St. John^s (P. E.
Island), and in 1770 was elevated to be Chief Justice of thai
Island. From incidental references in the correspondence
of Lord Cornwallis, I think Brewse was an engineer or sur-
veyor, as he appears to have been engaged in laying out the
divisions of the newly founded town. Otis Little, I have
already noted, was the King's attorney, or we should speak
of him as the Attorney-General for the Province, who I re- ^
gret to say, was subsequently dismissed for misconduct, and
William Nesbitt took his place. On Septeniber .29th, 1750,
William Xesbitt and Thomas Walker were appointed notaries
public. •'
The next reference to judicial procedure is found in the
Council Records, December 20th, 1750, when the Justices
memorialized the Governor-in-Council for further regula-
tions to be made in regard to the Courts of Justice and
matters relating thereto, and on July 14th, 1751, the Council
adopted amended and additional rules and regulations for
their guidance. It would be unprofitable to give these in
detail, or discuss them at any length. It suffices to say that
the Courts even then appear from the records to have had
34 Historical Account of the Courts
plenty of occupation. Among other crimes and charges
which they were called upon to adjudicate were those of sell-
ing and cutting coins and pistareens; selling liquor without
license; for marrying people without lawful authority; for
spreading false news; for violating the Sabbath.
Some of the punishments enumerated somewhat shock
our feelings at the present day, although quite in accordance
with the laws of England then in force. Several persons
were hanged for ordinary thefts. Murderers claimed the
benefit of the clergy, and after being branded with a hot
iron on the hand were allowed to go free; the pillory for
certain offences was then in use; whipping, and that severe,
was inflicted for many offences which we regard with a more
lenient eye. It is hard to realize that all these modes of
punishment were formerly practised in our province.
One case of some peculiarity was the application of Anne
Porter for relief in a case where she had. an execution in the
County and General Courts against one John Hoar, but could
not get the fruits of her judgment because he had tendered
a house in satisfaction. In another James Parport prays for
relief against an award which had been made against him.
I may mention just here, though having no direct relation
to my paper, that it appears from the Council records that
February 3rd, 1752, the first provision was made for the reg-
istration of deeds, the commencement of a system highly
beneficial to the province. On May 29, 1752, for some reason
unexplained, the title of the County Court was changed, it
was afterwards known as the "Inferior Court of Common
Pleas,^' and some of the former Justices were re-appointed.
The new appointees were Charles Morris, James Monk, John
Duport, Eobert Ewer, Joseph Scott, William Bown, Sebas-
tian Zonberluhler, Joseph Gerrish, John Creighton and Ed-
ward Crawley to be Justices of the Inferior Court of Com-
mon Pleas for the county of Halifax in this province.
The first record we find after the appointment of, this
new Court is on March 2nd, 1752, a memorial to the Council
asking for further rules and regulations. On March 10th
of Judicature in Nova Scotia, 35
another application respecting amendments of error to be
made in copies of writs, and 8th April following forms of
capias, summons and attachment, and execution were Adopt-
ed, all showing that even at that early date in our legal his-
tory questions of practice were worrying the judicial mind.
It is curious to note here that although the Justices were
appointed so far back as February, 17|2, as "Justices of the
Inferior Court of Common Pleas,'^ it iiras not until May 29th,
1752, that the Order in Council was passed making the
change of name from the County Court for the county of
Halifax to the Inferior Court of Common Pleas for the
county of Halifax.
This completed Comwa]lis^ work so far as the constitution
of the Courts and procedure were concerned, as he shortly
afterwards resigned, and Peregrine Thomas Hopson, on
August 3rd, 1752, was sworn in Governor, and a new
Council appointed as follows; Charles Lawrence, Benjamin
Green, John Salisbury, William Steele, John Collier, and
George Fotheringham, who by virtue of their office became
of course Judges of the General Court.
By an entry in the Council Eecords, October 25th, 1752,
appears a memorial by one Francis Martin to allow, an ap-
peal from the decision of the Inferior Court which had been
refused. The Council in the exercise of their authority
directed that the appeal should be allowed.
Up to November 13th, 1752, the General Court appear not
to have possessed a seal to authenticate process issued, for we
find by an Order in Council one is directed to be made.
In this year, July 9, 1752, proceedings were commenced
before the Council against Ephriam Cook, who had made
most damaging charges against the integrity of the Justices
of the Inferior Court. Mr. Cook was apparently of a very
contrary and rebellious disposition, and had before this oc-
casioned much trouble to the authorities. In this instance
he was summoned to answer the charges made by the Jus-
tices, and from the record it appears his slanders were not
well founded, but Mr. Cook was not easily frightened, and
36 Historical Account of the Cov/rta
in the first instance excused himself from appearing to an-
swer for his contempt. He was, however, forced to sub-
mission ,and made to apologise for his strictures, but he was
removed from the commission as a Justice, which he had
held till that time.
But this was not the end of attacks on the Justices of
the Couri; of Common Pleas, for we find, December 29th,
1752, their memorial to Council to take under consideration
certain aspersions on their characters and conduct as Judges
made by no other than David Lloyd, their clerk, as well as
a memorial of the merchants and others complaining of par-
tiality and irregularity in their proceedings. All parties
were summoned before the Council and were heard at great
length, in fact not terminating until 1st March, 1753, when
the Council publicly announced their decision in favour
of the Justices. It is difficult at this day to form any just
opinion on the truth of these assaults on the conduct of our
first Judges. The Council examined them with great
earnestness and acquitted them. But, on the other hand,
the Justices were influential men, some of them members
of the Council, and all more or less connected with that
body. The whole proceedings are recorded at length and
form quite an interesting episode, but too long to discuss
further here.
There is one significant record immediately after, on
March 5th, 1753, a new commission was issued, including the
same Justices and others who were added to their number.
April 21, 1753, a committee of the Council was appointed
to collect and print all the laws and ordinances enacted up
to that date, and on September 4th, 1753, further rules of
Court were adopted, and the acts of the Court in the past
confirmed.
On the 19th November, 1753, further forms of procedure
were adopted, which are addressed to the Provost Marshal or
his deputy, and issued either under the title of the "In-
ferior Court of Common Pleas, or General Court of Judica-
ture holden at Halifax," shewing that the same two Courts
of Judicature in Nova Scotia, 37
continued to have jurisdiction in all matters, as indeed, they
did until October 21stj 1754, when Jonathan Belcher, on
that day, presented his commission from King George, ap-
pointing him Chief Justice of the Province of ISTova Scotia,
and was sworn in. . He had previously taken his seat at the
Council Board, October 14th, and on the same day Lawrence
was sworn in as Governor of the Province. I may mention
here that at this time the senior member of the Inferior
Court of Common Pleas was styled the first Justice, and en-
joyed no other title. As soon as Chief Justice Belcher as-
sumed the duties of his office, the title of the Court was
changed, and was afterwards called the Supreme Court, and
the General Court consisting of the Governor and Council
ceased to exercise further jurisdiction. This appears from
the Eecord books of the Court now in the archives. I can
find no Act or regulation of the Council bringing about this
change, nor conferring this jurisdiction upon him, aud I,
therefore, conclude that his authority was contained in his
commission as Chief Justice. It is worthy of note as con-
firming this view, that in several Acts passed in Council affer
he arrived, the term " Supreme Court '^ is first used, showing
that some authority recognized by the Council must have
been conferred upon him.
Belcher held two commissions as Chief Justice of this
Province, the first from George II., 1st July, 1754, the second
from George III., I4th April, 1761, the mandamus for which
last was signe'3 by William Pitt, the great Lord Chatham.
As they are both of importance in considering the judiciary
of the Province, I give them in full. I also append the
mandamus for several commissions to other Chief Justices
and Attorneys and Solicitors-General.
MANDAMUS FOR CH. J. BELCHER, FIRST COMMISSION FROM
GEORGE II.
George E.
Trusty and well-beloved we greet you well. Whereas we
have taken into our Eoyal Consideration the Integrity and
Ability of our Trusty and Well-beloved Jonathan Belcher,
38 Historical Account of the Courts
Esquire; we have thought fit hereby to require and author-
ize you forthwith to cause Letters Patent to pass under our
. . . Seal of that our Province of Nova Scotia or Acadia
for constituting and appointing the said Jonathan Belcher,
Esquire, our Chief Justice of and in our said Province. To
have, hold, execute and enjoy the said office unto him the
said Jonathan Belcher, for and during our Pleasure, and his
Eesidence within our said Province, togetl^er with all and
singular the Eights, Profits and Emoluments unto the said
Place belonging in the most full and ample manner, together
with full power and authority to hold the Supreme Courts
of Judicature at such Places and Times as the same may and
ought to be held within our said Province. Arid for so doing
this shall be your warrant; and so we bid you farewell.
Given at our Court at Kensington this First day of July,
1754, in the twenty-eighth year of our Eeign.
By His Majest/s command,
(Sgd.) T. EOBINSON.
MANDAMUS FOU CH. J. BELCHEll, SECOND COMMISSION FKOM
GEOUGE III.
George E.
Trusty and Well-beloved We greet you well. Whereas
we have taken into Our Eoyal Consideration the Loyalty,
Integrity and Ability of Our Trusty and Well-beloved Jona-
than Belcher, Esquire, We have thought- fit hereby to author-
ize and require you forthwith to cause Letters Patent to be
passed under Our Seal of Our Province of Nova Scotia in
America, for constituting and appointing him, the said
Jonathan Belcher, Our Chief Justice of and in Our Province
of Nova Scotia; To have, hold, exercise and enjoy the said
Office unto him, the said Jonathan Belcher, for and during
our pleasure, and his Eesidence within our said Province,
together with all and singular the Eights, Profits, Privileges
and Emoluments unto the said Place belonging, in as full
and ample manner as he the said Jonathan Belchei;, or any
of Judicature in Nova Scotia. 39
other person have heretofore held and enjoyed, or of right
ought to have held and enjoyed the same, with full Power
and Authority to hold the Supreme Courts of Judicature at
such Places and Times as the same may and ought to be held
within our said Province, and you are to cause to be inserted
in the said Letters Patent a Clause for revoking and deter-
mining the last Letters Patent whereby the said Jonathan
Belcher was constituted Chief Justice of Our said Province
of Nova Scotia. * And for so doing this shall be your warrant
and so we bid you farewell. Given at Our Court at St.
James's, the Fourteenth day of April, 1761, in the first year
of Our Reign.
By His Majesty's command,
(Sffd.) VV. Pitt.
This is a convenient place to draw, attention to the fact
that the commissions to our early Judges were, as in the case
of Chief Justice Belcher, " during pleasure only,'' that is to
say, during the pleasure of the Crown, by whose authority
alone they were removable. This condition of affairs was
changed in 1849, when a bill was brought into the House of
Assembly by which the Judges were to be appointed " during
good conduct," " quamdiu se bene gesserit " in legal phrase-
ology, and only removable on the joint address of the two
Houses of the Legislature. The reason assigned for this
change was to make the Judges quite independent of all in-
fluences, whether of the Crown, or from any other source..
Strange to say this change was bitterly opposed by so eminent
a lawyer and Judge as the late Mr. Justice Johnston, but I
rather suspect his opposition was due to another result of
the law which henceforth left judicial appointments in the
hands of the Provincial Government without reference to the
Imperial authorities. This I gather from expressions used
in the course of the debate on the subject. My impression
is confirmed by the fact that the late Mr. Justice Dodd ap-
pears to have been the last Judge of the Supreme Court who
was appointed in consequence of a mandamus from the home
authorities. He was appointed 17th March, 1849, against
40 Historical Account of the Courts
the wish of the Provincial Goyemment, composed of Howe,
Young and others. The previous Government, of which
Judge Dodd was a member, had resigned the February before,
and had evidently recommended Dodd for the vacant Judge-
ship. Now, although the Act first referred to passed at this
session, it is not incorporated in the Acts for the year 1849,
and I conclude that the Home Government had not at that
time assented to it. This is proved by the fact that the late
Mr. Justice DesBarres' commission, dated November 14th,
1849, was in exactly the same terms as those of the former
Judges, although he was appointed by the Provincial Gov-
ernment.
Another noticeable change was made, that is to say up to
the reign of George III. the Judges, both in England and her
colonies, on the death of the reigning sovereign required
new commissions. This is the reason why Chief Justice
Belcher held two commissions. An Act was passed early in
the reign of George III., which declared that the office of
a Judge should not be vacated on the demise of the sovereign,
and, I presume, applied to colonial appointments, thus plac-
ing the Judges in a perfectly independent position, the same
as occupied at the present day, when they are irremovable
except by a vote of the two Houses of Parliament.
MANDAMCy Foil JOH\ FENTON'S COMMISSION AS PUOVOST
MARSHALL.
•
George R. ' ' I ; i
Trusty and Well-beloved, We greet you well. Whereas
We have taken into Our Royal Consideration the Loyalty,
Integrity and Ability of Our Trusty and Well-beloved John
Teuton, Esquire, We have thought fit hereby to authorL^e
and require you forthwith to cause Letters Patent to be
passed under the Seal of Our Province of Nova Scotia, con-
stituting and appointing him the said John Fenton, Provost
Marshall of and in Our said Province; To have, hold, exer-
cise and enjoy the said Office or Place unto him the said
of Judicature in Nova Scotia, 41
John Fenton, by himself or his sufficient Deputy or Depu-
ties (for whom he shall be answerable) for and during Onr
pleasure, and his Eesidenee within our sajd Province, to-
gether with all and singular the Eights, Salaries, Allowances,
Fees, Profits, Privileges and Emoluments thereunto belong-
ing or apperi;aining, in as full and ample manner as any
other Person hath heretofore held and enjoyed, or of Right
ought to have held and enjoyed the same. And for so doing
this shall be your Warrant. And so we bid you farewell.
Given at our Court at St. James's the Seventeenth day of
March, 1772, in the Twelfth Year of Our Eeign.
By His Majest/s command,
(Sgd.) HlIXSBO HOUGH.
MANDAMUS Foil JAMES MONK'S COMMISSION AS SOUCITOU-
OENEUAL.
George E.
Trusty and Well-beloved, We greet you well. Whereas
We )iave taken into Our Eoyal Consideration the Loyalty,
Integrity and Ability of Our Trusty and Well-beloved James
Mojik, Esquire, We have thought fit hereby, to authorize and
require you forthwith to cause Letters Patent to be passed
under the Seal of Our Province of Nova Scotia, constituting
and appointing him the said James MonE,^ Our Solicitor*
General of and in Our said Province; To ikve, hold, exer-
cise and enjoy the said office unto him the said James Monk,
during Our Pleasure, together with all and singular the
Bights, Fees, Profits, Privileges and Advantages thereunto
belonging, or appertaining, in as full and ample manner as
any Solicitor-General of Our said Province hiath heretofore
held and enjoyed, or of Eight ought to have heM, and enjoyed
the same. And you are to cause to be inserted in the said
Letters Patent a Clause or Proviso obliging the said James
Monk to actual Eesidenee within our said Province, and to
execute the said Office in his own Person, except in case of
sickness or incapacity, and with all such other clauses and
Provisos as are requisite and necessary in this Behalf. And
42 Historical Account of the Courts
for so doing this shall be your Warrant. And so we bid you
farewell. Given at our Court at St. James's the thirty-first
day of July, 1772, in the Twelfth Year of our Reign.
By His Majesty's command,
(Sgd.) Hillsborough.
MANDAMUS FOU lUCHAUD JOHN UNIACKE S COMMISSION AS
SOLIClTOk- GEN ERAL.
Qeorge R.
Trusty and Wellbeloved, We greet you well. Whereas
We have taken into Our Royal Consideration the Loyalty,
Integrity and Ability of Our Trusty and Wellbeloved Richard
John Uniacke, Esquire, We have thought fit hereby to
authorize and require you forthwith to cause Letters Patent
to be passed under the Seal of our Province of Nova Scotia,
constituting and appointing him the said Richard John
Uniacke Our Solicitor-General of and in Our said Province
in the room of Richard Gibbons, Esquire, whom we have
appointed our Attorney-General of Our said Province; To
have, hold, exercise and enjoy the said Office unto him the
said Richard John Uniacke during Our Pleasure, together
with all and singular the Rights, Fees, Profits, Privileges
and Advantages thereunto belonging or appertaiming in as
full and ample manner as any Solicitor-General of Our said
Province hath hereto held and enjoyed, or of Right ought
to have held and enjoyed the same. And you are to cause
to be inserted in the said Letters Patent a clause or proviso
obliging the said Richard John Uniacke to actual residence
within our said Province, and to execute the said office in his
own Person, except in case of sickness or incapacity, and with
all such other clauses and provisos as are requisite and neces-
sary in this behalf. And for so doing this shall be you War-
rant. And so we bid you farewell. Given at our Court at
St. James's the Twenty-eighth day of February, 1782, in the
Twenty-second year of Our Reign.
By His Majesty's Command. ,
(Sgd.) W. Ellis.
of Jiidicature in Nova Scotia 4D
MANDAMUS FOR WILLIAM THO|fSON*S COMMISSION AS
PROTHONOT^RY.
George R.
Right Trusty and Wellbeloved, We greet you well.
Whereas we have taken into Qur Royal Consideration the
Loyalty, Integrity and Ability of Our Trusty and Well-
beloved William Thomson, Esqr. We have thought fit here-
by to authorize and require ybu forthwith to cause Letters
Patent to be passed under Oij^ Seal of that Our Province of
Nova Scotia, constituting and appointing him the said Wil-
liam Thomson, Prothonotary and Clerk of the Crown in our
said Province, to have, ho|d, exercise and enjoy the said
office during our Pleasure ^nd his Residence within Our said
Province with all and singular the Rights, Salaries, Fees,
Profits, Privileges and Emoluments thereunto belonrfng or
appertaining, and for so doing this shall be your Warrant.
And so we bid you farewell. Given at Our Court at St.
James's the Sixth day o^ October, 1786, in the Twenty-sixth
year of Our Reign.
By His Majesty's Command.
(Sgd.) Sydney.
As this concludes that part of my subject relating to the
establishment of the early common law courts in this Pro-
vince, culminating in the constitution of the Supreme Court
with Chief Justice Belcher at its head, it is a fitting place
to make some reference to that eminent Judge. In the
archives Mr. Aik^ns in a note gives the following brief bio-
graphical sketch.
"Jonathan Belcher was a second son of Governor Bel-
cher of Massaxjhusetts. He graduated at Harvard, Cam-
bridge, and wjBis educated for the profession of the law. He
afterwards w^ent to England to complete his studies, when
he became ^ member of the Society of the Middle Temple.
He receiveij the appointment of Chief Justice of Nova Scotia
in 1754. Soon after assuming that office, he urged upon
the Government the necessity of calling a representative
aesembl;>r, being of opinion that the Governor and Council
44 Historical Account of the Courts
under the Governor's commission and instructions did not
possess the power of levying taxes. The earliest enactments
of the Legislature which form the groundwork of the Statute
Law of Nova Scotia were prepared by him. Chief Justice
Belcher was President of Council, and administered the
government of the Province on the death of Governor Law-
rence in October, 1760. He died in Halifax, 1776, aged 65,
leaving a son and daughter. The House of Assembly allowed
a pension to his daughter until her marriag-e. His son, the
Hon. Andrew Belcher, was for several years a member of the
Council. He was father of Vice-Admiral Sir Edward Bel-
cher, distinguished for his nautical surveys on the Coast of
Africa and the Arctic seas. Sir Edward was born at Halifax
and educated at the old Grammar School on Barrington
Street under the Eev. George Wright."
It may be interesting to add the following description
from Murdoch's History of the inaugural proceedings on
Chief Justice Belcher's first presiding in the Court: " On
Monday, 14th October, Jonathan Belcher, the newly ap-
pointed Chief Justice of the Province, was (by H. M. Man-
damus) sworn in as a member of the Council, after which
the Council adjourned to the Court House, where after pro-
clamation made for silence, the King's commission a.ppoint-
ing Charles Lawrence Lieutenant-Governor was read in pub-
lic. He was sworn in and took the chair. The Council ad-
dressed him in congratulation, and he made a suitable reply.
A commission by letters patent for the Chief Justice was
prepared, and on the 21st October (Monday) it was read in
Council, and the Chief Justice took the usual oaths of office.
On the first day of Michaelmas term the Chief Justice walked
in procession from the Governor's house to the Pontac — ^a
tavern. He was accompanied by the Lt.-Govemor Law-
rence, the members of the Council, and the gentlemen of
the bar in their robes. They were preceded by the Provost
Marshal, the Judges' tipstaff and the civil officers. At the
long room of the Pontac an elegant breakfast was provided.
The Chief Justice in his scarlet robe was there received and
complimented in the ^politest manner' by a great number
ef Jvdicatxire in Nova Scotia, 45
of gentlemen and ladies and officers of the army. Breakfast
being over, they proceeded with the commission carried be-
fore them to the church (St. Paurs), where the Rev. Mr.
Breynton preached from this text: ^^ I am one of these that are
peaceable and faithful in Israel.'^ A suitable anthem was
sung. After this they proceeded to the Court House, hand-
somely fitted up for the occasion. The Chief Justice took
his seat under a canopy with the Lieutenant-Governor on his
right hand. The Clerk of the Crown theii presented the
commission to Mr. Belcher, which he returned. Proclama-
tion for silence was made; Belcher gave some directions for
the conduct of practitioners; the grand jurymen were sworn
and the Chief Justice delivered his charge to them. After
this the Court adjourned, and his Honour the Chief Justice,
accompanied and attended as before, went back to the Gov-
ernor's house. Such was the first opening of the Supreme
Court of Nova Scotia."
This very graphic description recalls to us the dignity
and solemnity with which our ancestors surrounded the Courts
of Justice, stitf preserved in England, and it is not clear that
we in this country have gained anything in throwing aside
many of the ouiward forms and ceremonies, so impressive
on such occasions. When the Judges of His Majesty's Su-
preme Court ceased to wear the scarlet robe, and Judges and
barristers alike cast aside the wig, I have not been able to •
ascertain. That they continued to do so at the end of the
last century is evident from the portraits of Chief Justice
Strange and Chief Justice Blowers, both of which formerly
adorned the Legislative Council Chamber, and now the por-
trait of the latter, I regret to say, is hidden away in one of
the ante rooms of the House of Assembly. Since writing
this, in conversation with Senator Dickey, the senior member
of the Bar in this Province, I learn that when he first com-
menced practice in 1834 the Judges then wore their wigs in
Court, but not the barristers.
In these observations I have, to some extent, wandered
from my text. Having traced step by step the erection and
constitution of the General, County and Inferior Courts, I
46 Historical Account of the Courts
»
must not omit to state that Comwallis and his council at
the same time instituted the Court of General Sessions, stated
by Haliburton to have been similar in its nature, and con-
formable in its practice to Courts of the same name in
England.
This Court was composed of the Justices of the County
Court, and afterwards of the Inferior Court of Common
Pleas, associated with all Justices of the Peace. It has not
been made very clear to me exactly to what extent they ex-
ercised jurisdiction in civil and criminal matters, and it seems
probable that their functions were chiefly discharged in pro-
viding local regulations for the town, although doubtless
some matters of a judicial nature were heard before them.
Haliburton in his brief account of our Courts, Vol. I.,
p. 164, says, " That in the year 1752, in consequence of many
difficulties having arisen from the practice of the County
Court, it was abolished, and a Court of Common Pleas erected
in its place upon the plan of the Inferior Court of Common
Pleas in New England. This Court sat four times a year,
and the Judges were selected from among those who had
presided in the County Court. Similar inconveniences
having arisen from the pfeculiar construction of the General
Court, His Majesty in the year 1754 appointed Jonathan
Belcher, Esq., Chief JusMce of Nova Scotia, and a new judi-
ciary was erected in the place of the General Court, styled.
The Supreme Court, Court of Assize, and General Jail De-
livery, in which the Chief Justice was sole Judge, but the
new Court assumed no other powers or jurisdiction than what
had till then been exercised by the Gemeral Court."
In a note he further informs us, ^^The practice in the
Supreme and Inferior. Courts continued the same until the
convention of the House of Assembly in 1758, when the prac-
tice of the Common Pleas was changed by a temporary Act
of Legislation and a new mode prescribed compounded partly
from the' practice of Massachusetts, and partly from the prac-
tice of England. Upon the expulsion of the neutral French,
and the introduction of the new inhabitants as settlers, new
of Jvd%cature in Nova Scotia. 47
counties were erected, and the Courts of Common Pleas be-
came multiplied. Thus constituted, the Courts continued and
practiced until 1764, when a change took place in the Su-
preme Court. Upon an address of the House, Governor Wil-
mot added two assistant judges, and appointed two members
of Council to fill these situations. The powers granted to
the assistant Judges by these commissions (which were
drafted by the Chief Justice) were so qualified and limited
that the intent of the Assembly was altogether frustrated —
not having power to try a case but in conjunction with the
Chief Justice, or even to open or adjourn the Court without
his presence and concurrence.^*
•
With the arrival of Chief Justice Belcher commenced a
new era in our Judicial annals. Hitherto no one pretending
to the necessary qualifications of a Judge had presided in
the Courts. Belcher was a man of good ability, good educa-
tion, of experience in legal proceedings, and of a vigorous
and determined character. This is evidenced by the reforms
and improvements he undertook and carried out until the
first Assembly was called in 1758. Comwallis' commission
authorized the summoning of an assembly chosen by the peo-
ple, but in the then state of the province it could not be
carried into effect. Five years and more had elapsed before
Belcher came and the condition of affairs had considerably
changed.. He, it appears, had doubts as to the validity of at
least some of the Acts and regulations of the 6ovemor-in-
Council, and pressed strongly for the calling of an elected
assembly. The subject was considered in Council and he drew
up a scheme for the election of members in the different
inhabitated districts of the province. It was submitted and
discussed at great length, and finally adopted after per-
emptory instructions from England came to call the assembly.
The Attorney and Solicitor-General of England, Murray and
Lloyd, gave their opinion, " that the Governor and Council
alone are not authorised under his commission and the royal
instructions to make laws. Till there can be an assembly, his
Majesty has ordered the Government of the infant colony to
be pursuant to his commission and royal instructions, and
48 Historical Account of the Courts
such further directions as he should give under his sign
manual, or by order in Council/^
The Lords of Trade appear to have been much concerned
over this matter, and I find among their despatches to the
Governor, dated May 7th, 1766, the following reference to
the subject: "As the validity of the laws enacted by the
Governor and Council or the authority of those acting under
them does not appear to have been hitherto questioned, it
is of the greatest consequence to the peace and welfare of the
Province that the opinion of His Majesty^s attorney and
Solicitor-General should not be made public until an As-
sembly can be convenejd, and an indemnification passed for
such acts as have been done under laws enacted without any
proper authority." This suggestion, as will subsequently ap-
pear, was carried out, and no doubt the perilous position in
which the Governor and Council and the officers acting
under them found themselves hastened the measure for call-
ing the Assembly.
On Monday, January 3, 1757, the necessary resolutions
for the purpose were passed in Council. On Monday, October
2, 1758, the newly elected members met at the Court House,
19 in nun^ber, and were sworn in. They elected Eobert
Sanderson their speaker; the Govemor-in-Council consti-
tuted the other House, and the two the civil Legislature of
the Province. Thus came into existence the only body which
henceforth could make laws for the Province.
The hand of Belcher is plainly visible in the early legisla-
tion of the province. The late Dr. Aikins informed me that
it was he who arranged and revised the laws which appear in
our first Statute book, as appears by the copious notes and
memoranda in his handwriting in the copy of the British
Statutes at large in our Law Library. He adds, what may
be of interest to the Bar Society, that many of the books
which formed the foundation of this library are supposed to
*
have been originally his property.
Mr. XJniacke in his compilation of the Statutes published
in 1806 says: "Finding that an edition of the Acts of the
Province up to the sixth year of his present Majesty's reign
of Judicature in Nova Scotia, 49
(George III.) was published by the late Chief Justice BeU
eher with notes of law eases and marginal references to British
Acts of parliament, I considered it proper to republish the
same notes and references in this work, not only as a mark
of respect to the high and learned character of Mr. Belcher,
who was the first Chief Justice of the province, but also as
affording the people of the Province a convincing proof that
our predecessors anxiously endeavoured, as nearly as local
circumstances would permit, to copy the laws of the mothei
country, and to form our establishment agreeably to the
British constitution.^*
We must now turn our attention to the Jour-
nals of the House of Assembly and to the Statutes of
the Province, and follow the course of legislation as regards
the courts. One of their first acts was on October 3rd, to
pass a resolution requesting the Governor that all the resolu-
tions of His Majesty^s Governor and Council heretofore made
and passed, may be laid before the House, and also the col-
lection of the English Statutes. The Governor having com-
plied with their request, a committee was appointed, Octobei
5th, to inspect and examine the resolutions of the Govemot
and Council and report to the House which of them ought
to have the force of law. This report was adopted, and it
was deaded to incorporate the same in one General Act.
October 9th they voted that a Bill be passed for confirming
the past practice of the Courts of Judicature and establishing
their practice for the future, and on October 11th an Act
was passed, 32 George II. chap. 27, entitled "An Act for
confirming the past proceedings of the Courts Judicature,
and for regulating the further proceedings of the same. " Be
it enacted: That His Majesty's Supreme Court, Court of
Assize and General Gaol Delivery shall be held, and kept at
the usual times and places (that is to say) on the last Tues-
day in the month of October and on the last Tuesday in the
month of April in every year in the town of Halifax, and that
a Court of General Sessions of the Peace shall be Tield quar-
terly, as usual, in every year in the said town, that is to say,
on the first Tuesday in the months of December, March, June
50 Historical Account of the Courts
and September, and that the Inferior Court of Common
Pleas shall be held as usual on such first Tuesday in said
months of December, March, June and September/^ The
last clauses ratified and confirmed all proceedings to date.
At the same session another act was passed, entitled " An
Act for confirming the past proceedings of the Court of
Judicature, and for regulating the further proceedings of
the same," and then another entitled " An Act in addition to
and in further explanation of the last Act," which completed
the legislation directly bearing on the status of the Courts
and their proceedings. Thus was ratified and placed on a
sound and legal footing all that had been done in our Courts
up to this time.
In the following sessions Acts were passed dealing with
many subjects, over which jurisdiction was conferred upon
the Courts, but none intimately associated with the present
subject until the year 1763, when the House of Assembly
represented to the Governor-in-Council the desirability of
having two more Judges in the Supreme Court associated
with the Chief Justice, among other reasons, sajring, "As it
is conceived His Majesty^s subjects ought not to rest satisfied
with the judgment of ojie person only, and further that so
important a Court should not consist of one man however
capable and upright."
* On the 22nd June, 1764, the Council advised that two
assistant Judges of the Supreme Court be appointed in ac-
cordance with the address of the House of Assembly, and
on July 13th, 1764, the Lords of Trade answered the applica-
tion of the House of Assembly that two assistant Judges '\vill
be appointed so soon as they made provision for payment of
their salaries. This was done, and in 1764 the Hon. John
Collier and Charles Morris were appointed assistant Justices
of the Supreme Court. On the 26th April, 1769, the Hon.
John Duport succeeded Collier, and on the 24th May, 1770,
the Hon. Isaac Deschamps succeeded Duport, who was ap-
pointed Chief Justice of P. E. Island (or then known as Is-
land of St. John). I do not follow the list of succeeding
Judges, which can be easily traced.
of Jv/iieature in Nova Scotia, 51
The next Act of importance afifecting the Courts was
passed in the session of 1768. By 8 & 9 George III., cap. 5,
an Act was passed authorizing four terms of the Supreme
Court to be holden at Halifax, that is to say, on the first
Tuesdays of January, April, July and October in each
year. The reason assigned in the recital was the long
and injurious detention of prisoners awaiting their trial for
crimes alleged against them and thereby "weakening the
force and terror of the law, and also the delay in hearing and
determining causes of property in said Court."
Tip to this time, in fact until 1774, the Supreme Court
only held its sittings or terms at Halifax. There were no
terms in any of the counties, or districts, at that time laid
ofif. Before this, terms for the sittings of the Inferior Court
of Common Pleas had been provided by statute in a numbei
of places. It is a matter of interest and some importance to
find out how and in what way the Circuits of the Judges of
the Supreme Court were first arranged, and under what
authoritjp the difl^erent Judges held Courts of Assize and
General Gaol delivery in the various counties. The Judges
do not in this Province, as in England and in some of the
other Provinces, receive special commissions for that pur-
pose, and, so far as I can ascertain, there never were any
commissions for that object issued in the Province. I can
find none in the Eecords preserved in the archives, nor were
any orders in Council passed granting them.
Subsequent research leads me to qualify this statement to
some extent. I do find in the earlier records of the Council
that commissions for holding Courts of assize and general gaol
delivery were directed to be issued, but such commissions
apparently ceased after the first Legislature was convened,
except in some special cases to which allusion will be made
hereafter.
The authority under which the Judges act is based on the
Statutes passed at different periods as they became necessary,
fixing the times and places at which sittings of the Court for
the discharge of civil and criminal business were to be held.
52 Historical Account of the Courts
The first was enacted in the year 1774, 14 & 15 George
III. cap. 6, entitled, " An Act in addition to and in amend-
^ ment of an Act made in the eighth year of His present
Majesty's reign entitled An Act for establishing the times of
holding the Supreme Court/'
As the recital in this Act is valuable from an historic
point of view, I give it in full:
" Whereas many and great inconveniences have arisen,
and daily do arise for want of a more speedy and full admin-
istration of Justice in the several counties in this province;
that many suitors living and residing therein do sue and
prosecute their actions and causes of complaint in the Su-
preme Court at present held only at Halifax, and that their
being obliged to come from a great distance themselves, and
bringing their witnesses is very detrimental, as well as ex-
pensive to them, and great injury is thereby done to indi-
viduals as well as to the public good of the province; And
whereas his Majesty has been pleased to grant a commission,
and appoint a Supreme Court, Court of Assize and -General
Delivery, to be holden in and through the province, exercis-
ing the powers of the several Courts of King's Bench, Com-
mon Pleas, and Exchequer in England, and that the holding
of said Court at Certain stated times in such counties to
which there is communication with the town of Halifax by
land, will greatly contribute to the security of the right of
the Crown as well as to the ease and welfare of His Majesty's
subjects in this Province.
Be it therefore enacted by Governor, Council and A.s^
sembly. That the said Supreme Court shall from and after
the thirtieth day of September next be holden in the several
towns and counties at such times and in such manner as are
^ hereafter mentioned, and that the said Supreme Cour{ shall
be, and is hereby empowered to proceed at the several sittings
in and as near the same manner as hath heretofore been used
in the said Court sitting at Halifax, and that the several laws
of this province respecting jurors shall extend and be con-
strued to extend to the holding of the said Supreme Court
of JvdiccUure in Nova Scotia, 58
at the said several times and places, and that all the pro-
ceedings, rules, judgments and executions of the said Supreme
Court legally had made and done in and at their sittings and
terms, and at the said several places, shall be good, valid, and
effectual to all intents and purposes whatsoever.
II. And whereas it may be attended with inconvenience
that all and every of the Judges of the said Supreme Court
should be present at the several sittings of the said Courts,
Be it enacted that any two of the Judges of the said Court
shall be sufficient for holding the same, and transacting the
business thereof at all and every of the times and places here-
after mentioned, and the legal proceedings then and there
had shall be to all intents and purposes whatsoever as good
and effectual as if all the Judges of the said Court were
present.
III. Section 3 then specifies the places, that is to say,
Halifax, Horton in Kings County, at Annapolis and at Cum-
berland in the county of Cumberland. The particular time
for holding the terms is not specified, but the length for which
the Court could sit was limited in Halifax to 14 days, unless
of unavoidable necessity, when it might be continued for
six days longer; in the other places, not to sit longer than
five days from the opening of the Court.
This statute discloses to us the foundation of our Circuit
Courts, and the reasons for their constitution, but it also
discloses two other facts not generally known at the present
time (1) That the two judges of the Supreme Court then
presided at every sitting of the Court on each Circuit. (2)
That the Circuit Courts as so constituted were not simply
Courts of Nisi Prius as in England, but were invested with
all the powers and jurisdiction of the full Court sitting at
Halifax, and that jurisdiction continues until the present
day except as modified by subsequent legislation and our
rules and orders. As every lawyer knows, this is a matter
of great importance in the administration of justice.
There was however a curious exception made to this state
of things by a temporary Act passed in 1794, 34 George III.
cap. 10, entitled " An Act providing for the Trial of Issues
I
64 Historical Account of the Courts
by Justices of Nisi Prius in the counties of Sydney, Lunen-
burg, Queen's County and Shelbume.'^ The recital explains
the necessity: " Whereas it is highly expedient for the due
administration of justice that Courts of Nisi Prius shall be
established in the several counties of this province, in which
his Majesty's Supreme Court are not now by law authorised
to sit." It then proceeds to enact that in the above named
counties it shall be lawful fot the Governor to assign one
or more justices of the Supreme Court, joining with him either
one or more of the Justices of the Inferior Court to try such
issues by a jury of the county, which justices shall proceed
in the same manner as justices of Nisi Prius in England and
with the same power and authority. The Governor was to
issue a commission for holding such Courts and specify a
day for the same between April 1st and October 1st. Then
follows a further recital that whereas there are no practicable
roads from Halifax to these several Counties by which they
may be able to attend the places at the day named, the sheriflE
may respite the attendance of jurors and vritnesses until the
Justices arrival. This Act was to be in force for three years.
In 1804 by a general Act, 44 George III. cap. 3, I find this
Act was continued for one year, which induces me to think
it had been kept alive in the meantime by temporary Acts
not to be found.
It would be a tedious and unprofitable task to follow in
detail the numerous changes made by the Legislature by
which the present circuits of the Supreme Court were finally
evolved. I merely purpose to draw attention to some of the
more important and curious features in the exercise *)f judi-
cial authority.
From cap. 13 of 46 George III. passed in 1805 and cap.
15 of 50 George III., passed in 1809, it appears that up to this
time it was essential to the jurisdiction of the Court that the
Chief Justice should be one of the Judges present. By the
first of these Acts any one of the assistant judges was author-
ized to hold the Supreme Court in any of the Counties
associated with any Justice of the Court of Common Pleas,
of Judicature in Nova Scotia. 55
or any person of the profession of the law duly commissioned
by the Governor and Council. By the last named Act it was
enacted:
" That the said Supreme Court shall be held in each of
the said Counties and districts by two assistant Justices of
the said Court in the absence of the Chief Justice and in no
ether manner whatsoever." It is further provided that in
the event of one of them being sick, or unable to attend, one
Judge might hold the Court.
In 1816 by an Act 56 George III. cap. 2, the whole cir-
cuits were rearranged and increased, and in* those counties
where Courts of Nisi Prius had been provided for the Circuit
Courts were now established.
The last legislation to which the limits of my paper will
permit me to draw attention is cap. 5 of 1 & 2 George IV.,
passed in 1820, entitled "An Act to extend the Laws and
Ordinances of the Province of Nova Scotia to the Island of
Cape Breton."
That Act in the preamble recites what is well known,
that the Island had been re-annexed to Nova Scotia as an
integral part thereof, and provides among other things that
the administration of Justice in the Island shall be conform-
able to the usage and practice of the Province of Nova Scotia.
That the Supreme Court shall be held by the Chief Justice,
or in his absence by two of the assistant Judges, or by one of
the assistant Judges and the associate Circuit Judge of said
Court at Sydney in the said County on the last Tuesday in
August, and at Arichat on the first Tuesday of September.
By an Act passed in 1809, 50 George III. cap. 15, provi-
sion was made for the appointment of a third assistant Judge
to which Foster Hutchinson was appointed on the 10th of
June, 1810, thus making four Judges of the Supreme Court.
He was the senior member of the Bar and a man of great
learning in his profession and of irreproachable character.
He belonged to the family of the historian Hutchinson of
Massachusetts and was connected with Governor Mascarene.
He died 18th November, 1815.
56 ffiatorical Account of the Courts
In the year 1816 a new and hitherto unknown experiment
was made in connection with the Supreme Court. By the
Act passed in this year, 59 George III. cap. 2, power was
given to the Governor to appoint what was termed an Associ-
ate Circuit Judge, who in the absence of the Chief Justice,
with any one of the Judges should be competent to hold a
Court in every County or District. By the 4th section it
was provided that the person so appointed should, when in-
vested with the office, be competent to the exercise of all the
duties of an assistant Judge of the Supreme Court while en-
gaged! in the said Circuit and not otherwise. There was
added a proviso that nothing herein contained shall be con-
strued to empower the person so commissioned to perform
any of the functions of a Judge or assistant Justice of the
Supreme Court at Halifax. Peleg Wiswell, Esquire, was ap-
pointed to this office, and, so far as I can find, he was the sole
occupant of that anomalous position. It was apparently
created in' view of the necessity at that time of always having
two Judges presiding in the Supreme Court, and the im-
possibility of the then number of Judges being able to be
present at all the Circuits.
By the 4 & 5 George IV. passed in 1824, cap. 28, it was
provided that when this office became vacant it should not
be filled by the Governor. By a subsequent Act passed in
1837, we learn that the o.Ticc was at that time vacant and it
further recites that it will not be necessary to fill any vacancy.
Nor was it filled, and the reason is to be found in a previous
Act passed in 1834, 4 Will. IV. cap. 4, which made a most
important change in our judicial system. The preamble to
that Act is as follows:
" Whereas by the laws now in force, it is made necessary
that all causes shall be tried before two or more Judges of
the Supreme Court, which has been found difficult and in-
convenient in practice." It was thereby enacted that after
the passing of this Act it should be lawful for one Judge to
preside at the trial of any and all issues as well in Criminal
or in Civil causes. It was further enacted that the Supreme
of Judwaiure in Nova Scotia, 57
Court sliall hereafter be held in the several counties and dis-
tricts of this province before one Judge of the said Court in
the same manner as the same has been heretofore held before
two Judges of the said Court.
But a furi;her and more sweeping change in the Courts
was made in the year 1841, 4 Vict. cap. 3. It was entitled
''^ An Act to improve the administration of the Law and to
reduce the number of Courts of Justice, and to diminish
the expense of the Judiciary therein." By this Act the
Inferior Couri: of Common Pleas was abolished, and its whole
business and jurisdiction handed over to the Supreme Court
because of the great delays and other injurious consequences
in having the two Courts. Terms of the Supreme Court were
made more frequent in the different counties; the office of
Associate Circuit Court Judge, which had been vacant for
some years, was done away with, and provision made to add
one more Judge to the Supreme Court, thus, with the Chief
Justice, bringing the number up to five. This additional
Judgeship was bestowed upon Thomas Chandler Haliburton,
popularly known as " Sam Slick," who had been one of the
Judges of the Inferior Court of Common Pleas.
By the same Statute, power for the first time was con-
ferred upon the Judges of the Supreme Court " to make and
frame such rules and orders for regulating the practice thereof
as shall appear to them necessary and proper to simplify the
proceedings in suits in said Courts, and to prevent delay,
and lessen the expense of such proceedings."
The Supreme Court Bench continued to be made up of
the Chief Justice and four Puisne Judges until after the
Confederation of the Provinces. The pressure of business
again becoming too great for that number to dispose of it, a
statute was passed in 1870 authorizing the appointment of
two more Judges, thus increasing the number to seven, at
which it remains at the present time. Such, in brief, is the
history of our Supreme Court and the extension of its juris-
diction over the whole province of Nova Scotia, including
58 Historical Account of the Courts
the Island of Cape Breton, the gradual eyolfilaoai of the Oir-
tiuits in the different counties, and the increase of the Judi-
ciary in compliance ^ith the demands of pttblic business.
The times and places for holding the Circuit C«urt have been
*»d»aged at different periods to suit the requirements of the
iProviace, butiin these changes we have no. particular interest.
The full Beneb, hy which I mean all the Judges, sat in banco
only to hear fluch l^al questions end applications for new
.-trials and otiier business as properly came up to them by way
of jippeal. In this way all the legal business of the province
mm tried ^nd disposed of before the one Court until the year
il«75, when County - Courts were established -with limited
rjjttrisdiction, «nd resident Judges in the districts for which
rthey were appointed.
One other statute passed in the session of 1849 demands
our attention. It is probably unknown to the present geneua-
tion, except members of the Bar, that up to this time the
Chidf Justice and Judges received in addition to their in-
• comes, in fact as part of them, fees and perquisites in all the
suits brought in the ' Court, which must necessarily have
seriously added to^the costs 6i suitors. By 12 Vict. cap. 1,
?|»ssed in 1849, entitled «n Act for transferring the Grown
Ifievenues of Nova Scotia and providing for the civil list
rthereof, after recitii^ that, "whereas it is intended that the
salaries allowed to the Chief Justice and as^stant justices of
ike -Supreme Court shall be in full of all fees, perquisites,
and emoluments whatsoever, save and except the travelling
tfees allowed by law: It is therefore enacted that it shall not
be lawful for the Chief Justice, or any assistant or Puisne
Justice of the Supreme Court to take or receive, or for the
J^rothonotary or any other officer for or on behalf of the said
« Chief Justice or any such assistant, or Puisne Justice, to
demand, take or receive any fee, perquisite or emolument
whatsoever for or in respect of the issuing, endorsing or mak-
ing of any writ or filing any declaration or entry of any cause,
or of the trial of any cause or of the signing of any judgment,
or taxing any bill of costs, or for or in respect of any other
of Judicature in Nova Scotia, 69
— «
proceedings had in any cause in the said Supreme Courts,
but thereafter the demanding, or taking of any such fee,
perqusite, or emolument shall absolutely cease, and deter-
mine; Provided always that such Chief Justice, or assistant
or Puisine Justice shall receive the travelling fees allowed .or
which may hereafter be allowed."
I think all will admit that no wiser piece of legislation in
reference to the Judicial office was ever placed upon our
Statute Books.
But I must stop here, as it were, in the very midst of my
subject, which even another paper of equal length would by
no means exhaust.
I have left almost untouched the history of the Court of
Common Pleas. I have not even mentioned some of the
most important Courts which have in the pasi shared — many
of which now share in transacting the judicial business of
the country, such as the Court of Chancery and some of the
distinguished Masters of the Rolls who presided therein; the
Court of Probate, which deals with wills and administration
of Estates; the Court of Error and Appeals; the Court of
Marriage and- Divorce; the Court of Escheat; the Court for
the trial of Piracies, and the Court of the Vice-Admiralty.
Connected with several of these Courts there is much inter-
esting and useful information to be found in our ancient
records. I have said nothing of the barristers and solicitors —
many of them distinguished in their professional and political
career, who have adorned with learning and eloquence our
halls of justice and our Legislative Assemblies. I have made
but slight reference to the many eminent Judges who have
worthily presided in our Courts, and taken such a prominent
and useful part in moulding and settling on sure foundations
the laws under which we live. All such interesting informa-
tion must be reserved for a future time, or for the research
of some other investigator, who will find in our musty records
ample material to justify the labour it will involve. I cannot
lay claim to anything original in these pages which, as stated
60 Historical Account of the Courts of Ju/licature.
— — ■ *
in the outset, were simply intended to set forth in connected
and historical order the sources and foundations of our Courts
of Justice, which have administered from the beginning and
do now administer the law of this Province — those Courts
which are bound to uphold and guard with jealous care the
rights and liberties which we British subjects have inherited
as our birthright, and are entitled to enjoy as our most
cherished possession..,
CHARLES J. TOWNSHEND.
I
1
,^t^
HISTORY OF THE COURT OF CHANCERY
IM HOYA SCOTIA.
BY
CHARLES J. TOWNSHEND.
The Court of Chancery in Nova Scotia was constituted
simultaneously with the Courts of Common Law at the
foundation of Halifax in the year 1749. The commission
which authorized Comwallis to create Courts of /Justice in
the Province and the accompanying Royal Instructions con-
ferred the powers necessary for that purpose. Clause 10 of
the Royal Instructions reads as follows:
" It is therefore His Majosty^s will and pleasure that one
principal Court of Judicature should he held twice a year, or
oftener as you shall judge expedient, by the name of the
General Court, and to have the jurisdiction of all causes real
And personal at common law above the value of five pounds,
to act as a Court of Chancery, but not without appeal to his
Majesty when the matter in question shall exceed three hun-
dred pounds sterling, as also to try all criminal oases that
may come before the said General Court, which said Court,
it is his further will and pleasure, should consist of the
Governor, or Commander-in-Chief, and the Council of the
said Province for the time being, and five whereof is a
quorum/^
By virtue of this authority the Governor with the assist-
ance of his Council for several years, and subsequently with-
out the members of Council, exercised Chancery jurisdiction
until the first Master of the Rolls was appointed by Royal
64 Historif of tJie Court of Chancery in Nova Scotia,
Commission in 1825. His full title was Governor and Com-
mander-in-Chief in and for the Province of Nova Scotia and
its dependencies, Chancellor, and Vice- Admiral of the same.
In all the Chancery records preserved when the Court sat as
a Court of Chancery for the trial of equitable suits his name
is entered on the record as ^^ The Chancellor.''
Stoke in his book on the Colonies says:
"Every Governor of the Province bj his commission is
(1) Captain-General of the Forces. (2) Its Govemor-in-Chiet
is one of the constituents of the General Assembly. (3) The
Governor has the custody of the Great Seal, and is Chancellor
within the Province with the same powers of judicature that
the Lord High Chancellor has in England. (4) He is ordinary
within his Province. (5) He presides in the Court of Error,
of which he and the Council are Judges, to hear and deter-
mine all appeals in the nature of writs of error from the
Superior Courts of Common Law in the Province. (6).The
Governor is Vice-Admdral within his Province, but dqes not
sit in the Court of Vice-Admiralty, there being a Judge of
that Court who is usually appointed from England.**
In my former paper I detailed the several steps? taken by
our early Governors for separating the judicial from the
executive functions of the Council, by first erecting the
County Courts, afterwards styled " The Inferior Court of
Common Pleas,'' and secondly, by constituting the Supreme
Court, with Chief Justice Beloher at its head, thus super-
seding the jurisdiction of the Governor and Council, up to
that time exercised as " The General Court " in all common
law actions. The residuum of judicial power originally com-
mitted to the Governor and Council as a Court of Chancety
was still retained, and was regularly exercised until the
appointment of the first Master of the Eolls, when the
Governor ceased to hear and adjudicate in equitable matters
except when coming before him as Chancellor by way of
appeal.
Haliburton, who wrote the History of N"ova Scotia in
1829, makes a brief reference to the Court of Chancety in
the following terms:
History of tJie ConH of Chancfiy in Nova Scotia, 6§
*^The Governor is Chancellor in office. The union of
these two offices iai filled with difficulties, and when the
Governor is, as has been the case in all the Colonies of late
years, a military man, they seem wholly incompatible . , .
The Court of Chancery in this colony has never been con-
ducted in a manner to create the dissatisfaction alluded .to in
other Provinces, but the increased business of the Court, the
delicate nature of the appointment, and the difficulties at-
tending the situation, induced our late Lieutenant-Goverjior,
Sir James Kempt, to request his Majesty's Ministers to ap-
point a professional man to fill the situation of the Master of
the Rolls, and the Solicitor-General has been appointed to that
office, with a Provincial salary of £600 a year. This is the
first appointment of the kind ever made in the Colonies. It
may still be doubted whether it would not have been more
advantageous and convenient to the country at large to have
abolished the Court altogether, and to have empowered the
Judge of the King's Bench to sit as Judge in Equity at stated
and different terms from those of the Common Law Court.
The nature of the Court as at present constituted admits of
great delays. An appeal lies from an interlocutory decretal
order of a Chancellor to His Majesty in Council and so
toties quoti^, by means of which the proceedings may be
protracted by a litigious person to an indefinite length. The
unnecessary prolixity of pleadings which characterizes the
Chancery at home has been introduced into practice here, and
the expense and delay incidental to its proceedings are not
calculated for the exigencies and means of the country."
The lapse of time, together with the great and radical
changes effected in our judicial procedure by legislation, has
left the profession of to-day in almost total ignorance re-
specting the old Court of Chancery, when our Governors
were the Chancellors. How that jurisdiction was exercised,
what practice was adopted, and the nature of the litigation
coming before the Court, it may safely be said, is at the pre-
sent time unknown. N"o book has ever been written on the
subject, and no continuous record easily accessible has been
kept. Those which remain have been stored away in the
66 History of the Court of Chance ly in Nova Scotia,
lumber rooms of the Court House, covered with the dust of
many years, rendering any study of their contents a work of
great difficulty and patience. Until the researches which led
to this paper were undertaken, I had the impression which
generally prevailed among those who thought on the subject
at all, that the equity administered in that Court was of a
very crude character — in legal slang, " was measured -by the
length of the Chancellor's foot,^' which interpreted would
mean, according to the Chancellor's own peculiar notions of
what was just and equitable. An examination of the Chancery
records and Chancery papers in the archives of the County
Court House will rapidly dispel this erroneous conception,
and show it to have been a mistake due to the mists surround-
ing the whole subject. It is one of the objects; of this paper
to throw some light on the procedure and doings of this high
tribunal, which in the past played an important part in our
judicial annals. The abolition of the Court of Chancery,
nearly fifty years ago has led to its existence being almost
forgotten. The solicitors and counsel who practised before
the Court have now all, or nearly all, passed away. The Busy
life of succeeding practitioners has given to them little or no
leisure* to study the history and preserve the traditions of a
tribunal no longer useful or valuable to their practice. This
alone is sufficient to explain the indifference which has pre-
vailed, and the obscurity which has gradually and imper-
ceptibly enveloped everything relating to the Court. Nothing
was known as to the mode in which the Governor exercised
his jurisdiction Its Chancellor, nor as to the practice and
procedure adopted — ^not even the nature of the suits and
other equitable matters which came before him. The
Governor was generally, if not always, a layman, unversed
even in the common law — and much less in equity juris-
prudence. Hence came the natural and important inquiry,
how was it possible for an untrained layman to properly
adjudicate in equitable matters? It is a notable fact, dis-
closed by an examination of the provincial statutes, that
prior to the appointment of the Master of the EoUs in 1825
no legislation of any kind affecting the Court of Chancery
History of the Court of Chancery in I^ ova Scotia, 67
was passed with the exception of two Acts regulating the
coets and fees to be taken by the officers of the Court.
During the same period many Acts of importance were passed
in reference to the Supreme Court, the Inferior, and other
Courts, dealing with their jurisdiction and procedure, while
the Court of Chancery seems to have escaped all legislative
interference. It can only be conjectured that this was due
to the belief that the Chancellor's jurisdiction was beyond
the scope of legislative action, or that the Court gave such
general satisfaction that legislation was unasked for.
The record books of the Court of Chancery have been
preserved in which the proceedings are carefully transcribed
from the first beginning in the year 1751, two years after the
settlement of Halifax, with the exception of a few years.
These records have been kept with more or less accuracy and
detail up to the time of the appointment of the first Master
of the Bolls, and subsequently by the officers of the Court
imtil its abolition. The papers and documents embodying
the proceedings and decrees in the various suits are also to be
found carefully filed, numbered, and indexed.
From the pages of the old book I have been able to gather
much interesting and useful information. It is indorsed as
follows:
" Chancery.
The old book and only one formerly
kept in that Court."
On the inside of the first cover James Burrow, Kegistrar
of the Court, on the 14th February, 1774, made this note:
" From the records and papers put into my possession as
Eegistrar of the Court of Chancery in this Province, I have
selected all the minutes I could find in each cause, and have
accordingly put them together into this book from folio 43,
it being brought up no further, agreeably to their dates, in
order to make it as complete as the materials would allow —
also formed an index, by which the contents are at one view
seen." He then ar'is: " This and a parchment covered book
68 History of the Court of Chancery in Nova Scotia,
(which contained fair copies of the articles inserted in this
from folio 1 to folio 14, and seemed to have been designed to
be continued), were all the books belonging to this Court
that I received/'
Owing to the care and accuracy of Mr. Burrow, we are
thus assured that we Kave practically a record of all proceed*
ings in Chancery from the institution of the Court.
It is evident fronn this record that the Governor sat as
Chancellor, assisted by members of the Council. The process
issuing out of the Court was signed by the Chancellor and
the Secretary, as he was then called, William Cotterel, who
was therefore the first llegistrar of the Chancery Court.
From a note in the Nova Scotia archives it appears that he
was the first Provost Marshal of the Province, and was
succeeded in the office by Captain Foy. He was appointed a
member of the Council 23rd October, 1752, and was at that
time acting Provincial Secretary. That the Governor aided by
the Council at first composed the Court of Chancery, is shewn
by the record of the first case actually heard' — ^the case of
Johannes Bernett, complainant, against Joseph Jones, de-
fendant. This was a bill filed for relief from a contract of
purchase on 18th day of March, 1751. After the defendant
had made full answer, an interlocutory injunction was granted
restraining the defendant in certain proceedings he had before
commenced against the complainant in the Common Law
Court, and on the 5th December, 1751, the cause was heard.
The final decree recites as follows: " This cause coming to
be heard before His Excellency Edward Cornwallis, Esquire,
Captain-General and Governor in Chief in and over the
Province of Nova Scotia, and the members of His Majesty's
Council for the said Province, sitting by Eoyal authority as a
Court of Chancery, in the presence of the attorneys on both
sides.'' And the decree concludes: ^^ And it is therefore on
this said present sixth day of December in the year aforesaid,
by His Excellency and the said High and Honourable Court,
and the power and authority thereof, ordered, adjudged, and
decreed, that this decree, and all the matters vxnl things
therein contained, do stand absolutely ratified and confirmed
History of the Court of Chancery in Xova Scotia, 69
by the order and authority of this Court, to be observed and
performed by all the parties concerned according to the terms
^nd true meaning thereof/^ The point at issue between the
parties to this action, was the validity of an agreement
verbally made by the c(«nplaint with the defendant for the
*^e oJ his house and lot. The defendant had gone into
possession, and paid part of the purchase money. According
io the laws then in force no transfer of title could be made
without the sanction of the Governor, which had been refused^
The complainant, after notifying the defendant that he was
unable to complete the title for want of His Excellency's
assent, then conveyed the house and lot to William Hoffman,
but the defendant, who had in the meantime placed improve*
ments on it, refused to give up possession, and commenced an
action for damages against the complainant in the County
Court. On this state of facts the bill was filed, and the Court
in their judgment say; " His Excellency and the members of
his said Majesty's Council, acting as aforesaid as a Court of
Chancery, doth order and decree that the complainant should
«tand absolutely discharged and fi-ee from the agreement
aforesaid made between him and the said defendant, and that
the same being made without His Excellency's privity and
consent was of no effect, neither was the defendant bound
thereby, and that the said deed so executed by him to the said
John William Hoffman, and approved and registered as afore-
said, was a perfect and absolute deed and conveyance of said
lot, and that the property was absolutely vested in the said
John William Hoffman." The decree further directs that
the lot be discharged from the attachment placed upon it by
the defendant, and that possession thereof be forthwith deli-
vered to Hoffman. The money paid by the defendant on
accoimt was directed to be repaid to him within one month,
and each party was condemned to pay his own costs. The de-
fendant in his answer took exception to the jurisdiction of
the Court, averring that the complainant's remedy, if any, was
at common law, which exception, however, appears to have
been overruled. Such was the nature and determination of
the first suit in equity tried in this Province. The whole plead.
70 History of the Court of Chancerij in Nova Sdoiia,
ings, arguments, motions, and decree are transcribed with
great fulness, enabling us to form very correct ideas of the
Courtis procedure and action. I have given these in some
detail for that reason. It would take too much space, and not
be of any great advantage, to give particulars of those which
followed. There is one, however, of a fjojncwhat interesting
character to which I must iillude— the suit of the Marquis
de Conty and Gravina against William Magee and wife, Joho
Brenton, John Grant, and William Nesbitt, which was com-
menced on the 10th December, 1753. The proceedings ar^
recorded at great length. The defendants appear to have in-
voked all sorts of devices to delay the complainant and to im-
pede the progress of the cause. Demurrer was filer!, motions
made, examiners appointed, evidence taken under interroga-
tories, references made to the Master, reports thereon, excep-
tions thereto; but finally the Marquis prevailed and obtained a
decree in his favour in 1754. This record goes on to state:
" After pronouncing the final decree in this cause as above,
the solicitor for the defendants made a motion (which he
desired might be recorded) to be allowed an appeal from the
sentence of this Court to the High Court of Chancery in Eng-
land, which being considered by the Court, the same was
refused, the Court knowing of no right or authority what-
soever they have to grant an appeal in any case but to His
Majesty in Council. Thereafter the solicitor for the de-
fendants made a second motion to be allowed an appeal to his^
Majesty in Council. The Court refused the motion, the same
being insufficient.^^ I have no information respecting the
Marquis de Conty and Gravina, but gather from the papers in
Sie cause that his wife died in Halifax leaving considerable
property, which she probably bequeathed to others than her
husband, and appointed some of the defendants her executors^
They took possession of the assets, and this bill was filed on
the ground that the will was void having been made without
her husband's consent. It further appears that they had in
their custody his child and would not permit the Marquis
even to see himw The Court directed that he be allowed to
do so. The final decree was as follows:
History of the Court of Chancrry in Nova Scotia. 71
^^ It is therefore this present day, viz., the 13th day of
August, 1754, and in the 28th year of His Majesty's reign, by
His Honour Charles Lawrence, Esquire, President of His
Majesty's Council, and Commander-in-Chief of this Province^
and the Honourable the rest of the members of the said Coun-
cil, sitting as a Court of Chancery of the said Province, and by
the authority of this high and honourable Court, ordered^
adjudged, and decreed — '^ showing that at this date the Chan-
cellor decided suits in Chancery with the aid of the Council.
Another amusing episode of this trial I cannot forbear re-
lating. On the 19th March, 1764, there was a hearing on
some interlocutory matter. The record goes on to say:
"The parties having been fully heard were ordered to
withdraw that the Court might consider the argument on
both sides, when Mr. Grant, one of the defendants, struck Mr.
David Lloyd, one of the plaintiff's solicitors, upon their with-
drawing from the Court room, of which Mr. Lloyd immediate-
ly complained, and prayed the Court's protection."
The Court immediately decided that Mr. Grant had been
guilty of a high contempt of His Majesty's Court, and
directed the Marshall to take him into custody, and commit
him to prison until the further order of the Court, which
was done. The next day Mr. Grant offered a most humble
apology for his high offence, and with the consent of Mr.
Lloyd he was discharged from prison. All which goes to
show considerable feeling between the parties on the subject-
matter of the suit.
There are many other records in this interesting old book
to which I should like to refer in detail — a reference to one
I will make, as interesting to members of the profession. In
the case of Anderson v. Taylor, 14th Jime, 1756, a bill of
foroolosurp, I find that the English practice was .followed.
The decree is "that Taylor, the mortgagor, have leave to
redeem the premises within the space of six calendar months,
or otherwise, as the complainant is now in possession, that
the defendant's right of redemption be foreclosed, and the
premises enjoyed by the complainant, his heirs and assigns,
as their property." We have adopted a different mode of
72 History of the Court of Chancery in Nova Scotia.
foreclosure, which has been used for many years, and, for
reasons which I shall give later on, the English practice could
not have prevailed for any length of time.
The jurisdiction of the Court of Chancery, as I have
already shown, was at first exercised by the Governor with
his Council sitting as a Court, but the constitution of the
Court was changed. The exact time I have not been able to
fix, owing to the omission of the Registrar of the names of
those present. But on the 13th May, 1767, from an entry of
that date it is plain that the Chancellor presided alone,
assisted by Masters in Chancery, who were lawyers. The entry
is as follows:
Between,
William Butler, Complainant,
AND
Egbert Campbell, Defendant.
Lord William Campbell, Chancellor.
John Collier,
Chas. Morris,
Richard Bulkeley,
A hearing took place, and decree was made. That this
continued to be the constitution of the Court from 1767 until
1825, is very clearly shewn by the Chancery Minute Book B.
commencing in 1773, and kept by Mr. James Burrow, the
Registrar, ending in December, 1782, and by the succeeding
books of record.
Mr. Burrow appears to have been an excellent and careful
officer. He was appointed Registrar and Clerk 29th May,
1773, by Lord William Campbell, and subsequently re-
appointed by Francis Legge, Esquire, then Governor, 16th
August, 1774.
He has in a memorandum affixed to Minute Book B. fur-
nished us with a complete account of the Chancery records at
that date, which is as follows:
1. Book kept by the former Registrar.
Masters.
Histoiy of the Court of Chancery in Nova Scotia. 73
Books in CJiancery opened by Mr. Burrow, now in ubc:
No. 1. Eegistrar's Minute Book.
a, Eecord of all papers filed.
3. General Writ Book.
4. Order Book.
6. Deposit Book.
6. Copy of all receipts lor money deposited.
7. Copy of all receipts for money returned.
8. Book of Decrees.
9. Table of Fees.
10. Distribution Book of Chancery Heirs.
11. Receipt Book for money paid by the Registrar
to the officers in Chancery.
18. Receipt Book for delivery of all papers And
records when under consideration of
Masters.
13. Record of all officers in Chancery.
14. Copies of Commissions by which officers are
made or admitted in Chancery.
22 March, 1777.
In Bock A., which is the Chancery record of office of the
Court, and their commissions, and when appointed, we find
the following names and officers: —
His Excellency Francis Legge, Esquire, Chancellor.
Charles Morris, Esq., Master.
Richard Bulkeley, Esq., Master.
James Burrow, Esq., Registrar.
John Slayter, Clerk to the Registrar, and afterwards
appointed Deputy Registrar.
. Richard Gibbons, Esq., Solicitor.
James Monk, Esq., Solicitor.
Daniel Wood, Esq., Solicitor.
W. F. Eaton, Provost Marshall, afterwardf^ Sergeant-at-
Arms to the Court.
A Crier and Messenger, name not given.
In another book entitled the Registrar's Minute Book,
which is Book B., he has made the following valuable his-
torical note:
74 Histoi'y of the Court of Chancery in Nova Scotia.
" Province of Nova Scotia^ Court of Chancery, Kegistrar's
Minute Book, regularly entered from the hearings of every
cause, and the proceedings of this Court, beginning with the
20th October, 1773, and ending with the ... (a blank not
filled). In a note he says: " The first business I acted in
Chancery after my appointment of Eegistrar arose soon after
the arrival of His Excellency Francis Legge, Esq. — " Then
follow entries in the various causes and the doings of the
Court therein from the date above mentioned until 21st De-
cember, 1782. The first entry, 20th October, 1773, is in the
cause of Malaehy Salter v. Gresham Tufts. In this cause the
Chancellor ordered the parties and their counsel to attend
before him at the Governor's house. Then follows the record
of the sitting of the Court:
At the Governor's House, 12 O'Clock Noon.
Monday, Nov. 1, 1773.
Present:
His Excellency the Chancellor.
Mr. Bulkeley as Master in Chancery.
The Eegistrar.
The parties attending with their counsel, viz., Mr. Gibbons,
for the complainant, and Mr. Wood, for the defendant. The
petition of Thomas Bridge as attorney to the complaint was
read, and the Couri; considering the same obsen'^ed there
appeared to be no affidavit from the principal himself to
euppo'rt the matter of fact stated in the petition on which
he founded the prayer, and as such affidavit was indispen-
sably necessary for proceedings of this nature in Chancery,
the parties were directed to attend at ten o'clock to-morrow,
and the Chancellor would then proceed further, upon which
the Court finished for this day.
At ten o'clock the next morning the Court opened at
Governor's House, but the parties and their counsel were not
there, as appears by the following note: " The Court present
as yesterday, but the parties not appearing till near eleven
were directed by the Chancellor always in future to be punc-
tual to the hour ordered, for he would be exact himself, and
expected the same from them." The Court then proceeded to
History of the Cowt of Chancery in Nova Scotia. 75
the hearing, of which full details are given, and the Chan-
cellor then gave his decision: ^' The Court therefore consider-
ing the whole matter, and paying due attention to the plead-
ings and allegations of each party; and those on the part of
the complainant, supported hy the affidavit of Thomas Bridge,
not appearing strong enough to continue the injunction, doth
order that the same be dissolved., and that the defendant be
at liberty to take such execution or executions on the judg-
ment so obtained as he shall think fit.'^ Frooi the fact that
one Master only was present on the hearing of this case, it is
evident they were no necessary part of the Court. I have,
however/ gone carefully through the record contained in this
book, and find that as a rule the same two Masters, Richard
Bulkeley and Charles Morris, were always present assisting the
Chancellor at the hearings. Later on different Masters per-
formed the same office. On some occasions I find the common
law Judges were called in and sat with the Chancellor, no
doubt advising him on the more intricate questions coming
up ioT decision. But in pursuing my investigations I have
been surprised to find that, contrary to the common im-
pression, there was a Master of the Rolls who sat with the
Chancellor prior to 1825. The first record of the existence of
such an officer is to be found in the Minute Book of the Court
of Chancery commencing 31st March, 1789. The following
note is on the first page:
^^ First Court of Chancery held in which J. Gautier acted
as Clerk or Deputy Registrar.'^ Then follows:
^^ Court of Chancery.
1789.
March 30. Present — The Chancellor,
Master of the Rolls,
Master in Chancery.^*
Then names are given: Governor Parr,
H. R. Bulkeley,
F. Hutchinson.
^^ Court opened in Governor's House. Six causes were set
down for hearing, but the Court adjourned to 4th February,
1790, when this record is made. A desultory conversation
76 Histo^'y of the Court of Chancery in Nova Scotia.
took place. Much was said of former causes, and of the
above, but the gentlemen of the Bar not being sufficiently pre-
pared, the Court adjourned to the 11th inst." Following the
record we find that at the ensuing seven sessions of the Court
is was similarly constituted, the Master of the Rolls al^rays
being present. In the next eleven sessions of the Court we
find, in addition to those already mentioned, the Chief Justice^
Sir Andrew Strange, sitting with them. The five following
sessions were presided over by the Chancellor, the Master of
the Kolls, and Master in Chancery. On the 22nd January,
1793, the Court was held in tlie Court House, and then wore
present in addition to the Chancellor, Master of the Rolls,
and Master, the Chief Justice and Judge Brenton. The
Registrar notes that the Chancellor was assisted by these twa
common law Judges. These same Judges, or one of them,
continued to attend the sessions of the Court from this time
— ^not in all cases, but apparently in the majority of them.
We are therefore quite safe in drawing the conclusion
that from the inception of the Chancery Court to the ap-
pointment of Mr. Robie by Royal commission, the pro-
ceedings were presided over by the Chancellor, at first with
the Council as a component part of the Court, and Bonie ten
or twelve years later by Masters in Chancery, and one or
more of the common law Judges.
I find the following memorandum made in Book Chan-
cery No. 1, by James Gautier, Clerk, which should be pre-
served as showing the condition of Chancery records at 'that
date:
^^ Memorandum — Halifax, Xova Scotia. On the 27th
May 1792, the Honourable Mr. Richard Bulkeley, Master of
the Rolls in Chancery, deposited or gave me in charge for the
first time the following books relating to Chancery, which I
had never seen before, although I had acted as Registrar or
Clerk from the above printed period (25th January, 1788),
viz., Chancery box in the secretary's office — a parchment book
— Xo. 1, a marble covered book — Xo. 2 — do. 3, do. 4 (5, 6, and
7 wanting), do. 8 (9 wanting), do. 10 and 11 in one book, do.
12 and do. 13 and 14 in one book. Every cause in Chancery is.
Histot-y of the Court of Chancery in Nova Scotia, 77
now numbered from No. 1 and so on, bearing reference to
then books of Chancery No. 1 and 2. From the year 1775,
in fact, but more so from 1777 and 1778, the whole record of
the proceedings in Chancery seems to have dropped, and most
of the books mentioned in the first sentence of this memoran-
dum from No. 1 to 14 were exclusive of that, but little wrote
in. For further particulars see Chancery book. No. 2."
I have already mentioned my surprise at finding the title
"Master of the Eolls*^ given in the Chancery records prior
to 1825, it being beyond doubt that no such Judge with a
Royal commission had up to that time been appointed. The
Master of the Eolls is invested with the same judicial power
and authority possessed by the Master of the Rolls in England,,
and as the appointment emanates from the Crown, the affice
being held under Royal commission, such a title conferred
on an officer of the Court not invested with judicial authority
was a misnomer — a misconception of the nature of the office.
The explanation seem© to be that the person called " Master
of the Rolls '' in these entries was simply the first Clerk, or
senior Master in Chancery, but had no judicial authority.
The fact that he is never recorded as presiding in Court
alone, but always with the Chancellor, brings out clearly hi*
true position. Afterwards when the Master of the Rolb was
appointed by mandamus frorm the Sovereign, he always pre-
sided in the Court of Chancery as the sole Judge, and from
his orders and decrees there was an appeal to the Governor us
Chancellor. On the hearing of such appeals the Chancellor
generally, if not always, called in one or more of the common
law Judges as his assessors.
With these records before us we can at this day form a
very fair conception of the old Court of Chancery presided
over by our Governors as Chancellors. We further glean from
them that the sessions of the Court were at first held in the
Governor's house, then in the council chamber, and finally
in the Supreme Court room in the Province building, now
occupied by the legislative library. Masters were appointed.
There was a Registrar and Deputy Registrar, Sergeant-at-
Arms, and crier or messenger, and lastly solicitors duly
78 History of Oie Court of Chancery in Nova Scotia,
enrolled and entitled to practise in the Court. It would
appear from an entry in one of the Chancery books that the
barrister? and solicitors had not been always in the habit of
attending the sittings of the Court in proper costume. A
special order was made in the time of Governor Legge that in
future all gentlemen practising before the Chancellor must
come properly robed.
Let us next turn our attention to the practice and pro-
cedure of the Court, and observe how and in what manner
its business was carried on. ' Some particulars of the earliest
cases coming before the Court for adjudication have already
been given by way of illustration. These, however, by no
means cover the whole field of Chancery litigation. We find
that defendants were brought into Court by the old process
of writs of subpoena regularly issued, tested in the name of
the Chancellor, sealed with his private seal, signed by the
Registrar, and served by the Provost Marshal, and after-
wards by the Sergeant-at-Arms, who was sheriff of the
county of Halifax. Bills of complaint, answers, pleadings,
and demurrers were duly filed. Motions, references to
Masters, interrogatories administered and taken before
examiners, orders and decrees made and duly enrolled. Every
Imown subject of equitable jurisdiction, from time to time,
seems to have come before the. Chancellor for hearing and
decision. Briefly to enumerate some of them extracted from
the very comtplete index kept by the Registrar, I find bills to
set aside agreements — for injunctions — for injunctions
against proceedings at law — ^for account and relief — for fore-
closuref — for specific performance — for account and dissolu-
tion of partnership — ^for discovery — for redemption — ^for con-
tribution among sureties — for dower — for partition — ^f or writs
of ne exeat regno — for scire facias to repeal letters patent —
for administration of trusts and estates — for writs of
de lunatico inquirendo — for writs of certiorari — and lastly one
application for a writ of audita querela, which, on the advice
of the Chief Justice, was not granted. The above list of sub-
jects shows that the scope of the business must have been
History of the Court of Chancery in Nova Scotia, 79
quite extensive, and the subjects such as to demand consider-
able knowledge of equity proceedings and principles. I have
not pretended to investigate the correctness of the Chan-
cellor's decrees, nor would it serve any useful purpose now to
do so. Bills for foreclosure, as we should expect, largely
predominate. Many of the modes of procedure then in
use have been swept away by the spirit of modem reform.
It is only interesting to us now as showing a Court of equity
then in the Province adjudicating and proceeding in all
matters requiring equitable relief.
I now comie to the important inquiry as to the practice
and procedure which governed our old Chancery Court.
Our early Governors being laymen, it occurred to me that
their methods of procedure would be of the simplest char-
acter, untrammelled with the fixed equity rules. and practice
of the mother country. This, however, was not the case.
Fortunately, we have in one of the Chancery books of record
most complete information on this point. The practice,
generally speaking, was in conformity with that in vogue in
all equity courts at that period. But the particular code of
procedure and general rules contained in the book above re-
ferred to lead to the conclusion that they were taken from and
founded upon the procedure then in force in the Irish Court
of Chancery. It bears internal evidence of this from its
frequent references to the city of Dublin in fixing the times
for service of writs and notices. In corroboration of this is
the fact that the method of foreclosure and sale in use in
Ireland, which we retain to the present day, was adopted.
These rules and orders are all to be found in Book A.,
Chancery Eules of Practice, in manuscript, written out in a
clear, legible style, with the following heading:
" The procedure of the Rules and Practice of the High
Court of Chancery as they arise upon the several pleadings and
proceedings in causes according to this order."
Later on in the same book is a second set of Rules, headed
"A Collection of Rules and Orders in Chancery," also in
manuscript, made, probably, at' a later date, and a revision
of the former. In this set are to be found, in explanation
80 History of the Court of Chavcery in Isova Scotia.
and support of the various rules, citations from the decisions
of the Irish Chancellors, all pointing to the source from which
they were evidently taken.
No doubt these rules must have Been prepared and adopt-
ed at a very early date in the history of the Court. No change
appears to have been made in them until 26th December^
1833, when a new or added set of rules was made. This-
ad'dition was made in the last year Mr. Eobie held the office
of the Master of the Bolls, and it would seem that just before
complaints had been made and legislation enacted to compel
improvements in Chancery procedure.
Mr. Beamish Murdoch, who published his Epitome of
the Laws of Nova Scotia in 1833, thus speaks of the
Court of Chancery as regarded at that date: "Any
one who will deliberately read through the long, un-
meaning, but expensive forms of bills and answers in
Chancery, and the absurd and imnecesary processes of
contempt, as they are called, must be blinded by a reverence
for antiquity, if he does not think them unreasonable. Those
who are (as clients) made acquainted with the dilatory and
unsatisfactory progress of any business which goes into
Chancery, will feel convinced that there is something wrong-
in a system productive of such results. I have touched upon
changes of an extensive nature, because I have reason to
think that som6 alterations of importance are wished for by
gentlemen whose long professional experience and high sta-
tion in the Courts, and at the bar of this Province, render
them the most competent judges of the extent of the evils
arising from the present system. The Court of Chancery in
England has become a national grievance from its expense
and delays, and some of the colonies and many of the United
States have no Court of Chancery, being disposed rather to
submit to many of the strict rules of the common law in
ordinary cases, and in important questions to resort to legis-
lative Acts.^^
This extract probably reflects correctly the opinion of the
profession and public at large at the time it was written,
respecting the Court of Chancery in this Province. As already
History of the Couii; of Chancery in Nova Scotia, 81
noticed^ it was just then that the Legislature took the matter
in hand, and passed a statute requiring and authorizing the
making of new rules for expediting and cheapening pro-
cedure in the Court.
The new rules bear the following heading:
^^ COURT OF CHANCERY, — 20 Dec. 1833.
" His Honour the Chancellor, by and with the advice of
the Master of the Rolls, doth hereby order and direct in man-
ner following, that is to say/^ Then come twenty-two new
rules not meriting any particular notice here. An appeal is
provided for from the Master of the Rolls to the Chancellor,
and, as we already know, where the amount in litigation ex-
ceeded £300, there was a further appeal to the Judicial Com-
mittee of the Privy Council.
I do not find tliat any new or additional rules were made
during the period the office of Master of the Rolls was held
either by Mr. Fairbanks or Mr. Archibald. But on the 26th
August, 1846, shortly after Mr. Stewart's appointment, a
number of new rules were made, and some of the previous
orders were rescinded. Mr. Stewart, during his incumbency
of office, continued from year to year to promulgate new
rules, doing away with many of the old and cumbersome
ones, and generally improving the mode of procedure. It
will be sufficient to give the date of their enactment to shew
how assiduously the last Master of the Rolls was working to
reform the procedure of the Court of Chancery, and to clear
away many objectionable features which had grown up in
the course of years. The succeeding new rules and orders
were made in rapid succession as follows: 1 Sept., 1846;
31 Dec, 1847; 17 Jan., 1848; 27 Jany., 1848; 15 May,
1^48; 20 Nov., 1848; 4 Jan., 1849; 13 Dec, 1849; 4 June.
1849; 29 Jany., 1850; 31 Jany., 1850; 1 March, 1850; 2
March, 1850; 7 Jan., 1851; 25 Feb., 1851; 13 March, 1852;
5 May, 1852; 4 May, 1852; and 14 Dec, 1852.
It would, of course, be out of place in a sketch of this
kind to discuss or comment on the great changes effected
82 History of the CouH of Chancery in Nova Scotia.
in Chancery methods by these rules, but by any one suffi-
ciently interested critically to make an examination, it will
be found that many of the reforms in practice subsequently
adopted in our present Judicature Act were brought into
force.
That the Court of Chancery did a large and increasing
share of the judicial blisiness of the Province is evident from
the number of cases entered. From the records it appears
that up to the year 1799 there were heard and determined
133 causes and matters, and altogether from the year 1751
until the year 1856, when the Court was abolished, 1,904,
which is sufficient proof that in its latter years it w^ kept
busily employed.
Among the many professional men who practised before
the Court are the names of those familiar to us and distin-
guished in our political and judicial annals. Gibbons, at one
timie Solicitor-General, and later Attorney-General, for the
Province; Monk, who subsequently became a Judge of our
Supreme Court; Blowers, at one time Chief Justice; Kichard
John Uniacke, once Attorney-General; Foster Hutchinsoix,
one of our Supreme Court Judges; Eobie, who became first
Master of the Eolls; Young, who became Chief Justice;
Johnston, later an Equity Judge; and John W. Eitchie, his
very able successor. There were many others, whose names
time alone prevents me from mentioning. The well-tnown
reputation of these lawyers is a sufficient guarantee that,
especially in later times, the matters litigated in the Court of
Chancery must have been tried with learning and accurate
knowledge of equity jurisprudence. It is not my intention
to follow and point out in detail the proceedings of the Court
of Chancery during the period the Lieutenant-Governor was
Chancellor and sole Judge of that Court — not that the records
do not afford abundant material both interesting and in-
structive, but, properly to tell the history of the Court from
the year 1825 until it ceased to be in 1856, demands the re-
maining portion of my paper.
The business of the Court of Chancery had gradually in-
creased, and the Governor had for some years been striving
History of the Court of Chancery in Nova Scotia. 88
to have a regular Equity Judge appointed. In 1818 Lord
Dalhousie, then Governor, had actually commissioned Chief
Justice Blowers as Master of the EoUs, but on reference to
the. Imperial Government it was disapproved of, and the
commission cancelled. No reason is assigned for this, and 1
only assume that the Home Government so refused because
the two positions were incompatible.
On Tuesday the 14th February, 1826, the Lieutenant-Gov-
ernor *by message informed the Assembly that, having ex-
perienced considerable difficulty in discharging his duties as
Chancellor for want of a competent legal assistant, uncon-
nected with any of the common law Courts of the Province,
he had deemed it his duty to represent to his Majesty the
necessity of appointing a Master of the Rolls, and had at the
same time recommended Mr. Robie for the appointment.
The King having approved this, his Excellency now sug-
gests to the Assembly the expediency of their making suit-
able provision. He had commissioned Mr. Robie as Ma&fer
of the Rolls under a conviction of the necessity of the office.
On Tuesday the 21st February the message received from his
Excellency relating to the appointment of Master of the
Rolls, upon the second reading of a resolution of the com-
mittee that it was expedient to make a suitable provision
for this office, imderwent considerable discussion. It was
supported by the Speaker, Messrs. Fairbanks, Lawson, Uni-
acke, and Eraser, on the ground that his Excellency had ex-
perienced difficulties in presiding in the Court of Chancery,
having felt himself not altogether competent to decide upon
the matters which came before him; that it was a boon which
his Excellency deserved from his zeal for the public service
and the general interest of the Province ; that the recom-
mendation not only came from his Excellency, but also from
his Majesty's ministers; and that the peculiar favours which
this Province had received from the mother country had
every claim upon respect and gratitude. Mr. Young con-
sidered that it would ,be highly imiproper to run in the face
of his Excellency's recommendation, but when he considered
the very heavy expense the judicial establishment was to the
84 History of the Court of Chancery in Nova Scotia.
Province, and that it was the first appointment of a Master
of the Eolls throughout the British foreign possessions, it
would be well to pause before they made the appointment.
He therefore recommended it to be limited to the period of
his Excellency's administration — ^this mode, he thought, would
be treating his Excellency's message with more distinguished
consideration, and would enable the Province to judge
whether the advantage arising from the office was commen-
surate to the expense. Messrs. B. DeWolf, W. H. Eoach,
and Church strongly opposed the measure. The committee
divided, and the question was carried, twenty voting for it,
and ten against it. The bill subsequently passed this session
giving £600 a year permanently as salary of the Master of
the KoUs. Mr. Eobie was made Master of the KoUs. The
Act which thus made the first provision for Master of the
Rolls will be found in the Provincial Statutes, Chapter XI.,
passed in the year 1826. It is not otherwise of importance
than as fixing the salary in lieu of all other charges or fees.
Simon Bradstreet Eobie was by Eoyal commission ap-
pointed first Master of the Eolls for the Province of Nova
Scotia on the 5th December, 1825, and held that office until
his resignation in 1834. His commission is duly registered in
the record book of office, and I give it in full. The subse-
quent commissions to his successors were in the same lan-
guage.
" George the Fourth, by the Grace of God, etc., etc.
To our Trusty and well-beloved Simon Bradstreet Eobie,
Esquire, Greeting.
Having taken into our Eoyal consideration the loyalty,
integrity, and ability of you the said Simon Bradstreet
Eobie, do by these presents constitute and appoint you to be
Master and Chief Clerk of the Eolls and Eecords in and
belonging to our Court of Chancery of and in our said
Province of Nova Scotia. To have, hold, exercise, and enjoy
the said office of Master and Chief Clerk of the Eolls and
Eecords of our said Court of Chancery with, you the said
Simon Bradstreet Eobie during our pleasure, together with
all the powers and authorities to said office belonging, with
History of the Court of Chancery in Nova Scotia, 85
all and singular the rights, salaries, fees, profits, and advan-
tages thereunto belonging, in as full and ample a manner as
the same can be held and enjoyed. In testimony whereof,
etc., etc., witness our trusty and well-beloved Lieutenant-
General, General Sir Janies Kempt, Lieutenant-Governor,
Commander-in-Chief, and Chancellor, etc.
Dated 5th December, 1825.''
Mr. Eobie entered on the duties of his office, attending to
all the judicial work prior to this date performed by the
Chancellor. The Minute . Book of Chancery kept diuing his
time indicates that the usual business of a Court of Equity
was carried on before him as Judge of the Court. After
glancing through the various entries of causes and matters
heard before him, I find nothing of special note except the
additional rules first passed during his term of office, to
which I have already made allusion.
On the 5th August, 1834, Charles Eufus Fairbanks was
appointed Master of the EoUs on the resignation of Mr.
Eobie, and filled that position until his death in 1841. I
find in the record books the following account of his first
taking his seat as Master of the EoUs:
" Monday, 18th August, 1834.
" The Court opened in the Court House in the Province
Building this day at 11 o'clock.
Present — His Honour Charles Eufus Fairbanks, Master
of the Eolls.
Nathaniel W. White, Registrar.
John James Sawyer, Sheriff of Halifax,.
The Crier.
The Attorney-General and the Counsel and
Solicitors practising in Chancery.
His Honour directed the commission for his appointment
to the office of Master of the Eolls to be read, and this beins
read it was ordered to be entered in the minutes.
His Honour intimated to the bar that the Eolls Court
would for the present, and until further order herein, be
held regularly on the first and third Mondays of every month
86 History of the Court of Vhancery in Nova Scotia,
(except during the terms of the Supreme Court), and on
such other days as should be particularly appointed. That
the Court would sit in the Court House in the Province
Building, which, with the approbation of the Chancellor,
had been A'ppointed by his Honour as most suitable for the
public proceedings of the Court, and would be attended by
the sheriflE and other officers, and that gentleman of the bar
would require to appear in professional costume/^
One would infer from reading this order that the sittings
of the Court of Chancery before Mr. Fairbanks's time had not
been open to the public, or at least had not been held in the
Court House where the public could attend, and that gentle-
men of the bar had been heard without being in proper dress.
I should be inclined to draw the conclusion from this and
other circumstances that in Mr. Robie's day Chancery proceed-
ings were conducted in a loose and informal manner, which
Mr. Fairbanks was determined to correct. I find a record in
the Chancery Minute Book at p. 40 which is of some import-
ance as showing that when the Chancellor presided in the
Court after the Master of the Eolls was appointed, he was
assisted by the common law Judges. The entry is as follows:
" THURSDAY AND FRIDAY 14tH & 15TH MAY, 1835.
Present — The Chancellor.
The Chief Justice.
Mr. Justice Hill,
Mr. Justice Bliss.
Cause: Gussie v. Miller.
This cause was heard on exceptions.^*
On the 19th May, 1835, is this entry, showing some fric-
tion between the Chancellor and the common law Judges:
^^ TUESDAY, MAY 19, 1838.
Court of Chancery opened.
Present — The Chancellor,
The Master of the Eolls,
Mr. Nutting and The Eegistrar.
Histoj'y of the Court of Chancei'y in Nova Scotia. 87
The Chancellor directed the Registrar to address a note
to the Chief Justice and other Judges to inquire if they
meant to attend the Court this morning according to the
adjournment made by the Chief Justice. His Excellency
waiting for an answer, and the bar in attendance. After
waiting until 12 o'clock, and the Judges not attending, his
Excellency had a paper written by himself setting forth that
he had attended and waited for an hour, and having had no
intimation from them that they would not attend, he would
adjourn the Court until to-morrow, Wednesday, at 13
o'clock/'
On Wednesday 20th May, 1835, follows this entry:
"The Court opened in the Council Chamber — Present, the
Master of the Rolls and the Registrar.
Captain Campbell, A.D.C., delivered to his Honour a mes-
sage from his Excellency stating that being engaged in Coun-
cil he could not attend the Court and did not know when he
could come down. His Honour then adjourned the Court
until Monday next at 11 o'clock.'' Beyond these extracts, I
have observed nothing of consequence to note in the Chan-
cery proceedings during Mr. Fairbanks's period of office.
There was evidently a large amount of the ordinary business
transacted, as the minute book shows, and I have always
understood that Mr. Fairbanks was an efficient and able
Judge.
Samuel G. W. Archibald succeeded Fairbanks as Master
of the Rolls on the 28th April, 1841, and held the office
until his death in 1846. The fame of his eloquence as an
orator, and the important part he played in the public affairs
of Nova Scotia, are too well known to need any further
reference on my part. His life was written years ago, in
which all particulars have been given to the world. He
had been one of the foremost lawyers in the Province, and
enjoyed a large practice in the Court of Chancery, as the
records disclose. As in the time of his predecesors, I find
nothing of an interesting or remarkable character in the Chan-
cery records during his term to make mention of. All the
business of the Court seems to have been in the usual channel.
88 History of tlie Court of Chancery in Nova Scoti-a,
It is unfortunate that no reported decision of onr first three
Masters of the Rolls remains, and except the decrees they made
we have no material from which to form an opinion of their
qualifications as Equity Judges. There are yet living per-
sons who remember both Fairbanks and Archibald, and who
speak of them both as men of high ability and integrity.
Mr. Longworth in his life of Mr. Archibald, at p. 156,
makes the following reference to him as a Judge: "Mr.
Archibald soon had an opportunity of displaying his judicial
qualities in his new position. The sound common sense
which distinguished his judgments, and which after all forms
the foundation of law, and equity — ^the clearness and preci-
sion with which the principles underlying the case weie
announced and applied — ^gave a character to his decrees which
was not generally expected on the part of the bar. Had he
ascended the bench earlier in life, he would undoubtedly have
left behind him a reputation as a jurist not inferior to that of
almost any of the distinguished men who have held office as
Judges in Nova Scotia."
I have not been able to find the decisions or decrees to
which Mr. Longworth alludes, but presume he makes the
statement from the recollections of lawyers who knew and
heard Mr. Archibald.
The fourth and last Master of the Eolls of this Province
was Alexander Stewart, appointed on the 20th May, 1846,
on the death of Mr. Archibald. Like his predecessor, he
had taken a leading and distinguished part in the public
affairs of this Province, and was regarded as a lawyer of
eminent ability and learning and uprightness of character.
To many of the present generation he was well known, and
we are fortunate in having a few of his decisions reported,
which bear testimony to the justice of the reputation he
enjoyed as a Judge. He remained Master of the Rolls until
the Court of Chancery was abolished in the year 1856. It
was during his term of office that the agitation commenced
which ultimately resulted in that important measure, and
to which I will shortly turn my attention.
Histort/ of tlie Court of Chancery in Nov<i Scotia, 89
With this brief reference to the four Masters of the Eolls,
I must pass on to other matters bearing on the constitution
and proceedings of the Court. I have before mentioned that,
with the exception of two Acts fixing the fees to be taken,
no legislation affecting the Court was enacted until 1826,
when the Act was passed providing a salary for the Master of
the Eolls. I have also pointed out that the Chancellor ordi-
narily presided as sole Judge, with two or more Masters in
Chancery as his assessors or advisers. The Masters, how-
ever, had no judicial authority. Their powers, as shewn by
their commissions, were similar to those possessed by Masters
in Chancery in England or Ireland at that time. On the
apipointment of a Master of the Rolls their assistance was no
longer required, and from the records it is evident they did
not sit with him. I observe, however, in some few cases
where the Master of the Eolls was disqualified from interest
or other cause, the senior Master in Chancery, at that time
Mr. Nutting, sat as Judge and decided the matters coming
before him. In some other instances the Chancellor him-
self sat and heard the cases, assisted by the common law
Judges. About the year 1832 great and growing dissatis-
faction was aroused from the expense and delay in the Chan-
cery Court. As a consequence, the statute 2 Wm. IV. ch.
42 was passed, entitled "An Act for appointing commis-
sioners to inquire into and report upon the expediency of
reforming the practice and proceedings in the Courts of
Law and Equity.^' etc. The preamble, after reciting that
whereas it has become necessary to revise the civil and crimi-
nal codes of this Province, and to render the practice* of the
Courts of Law and Equity more simple and less expensive,
then proceeded to outline the appointment of five commis-
sioners to deal with the subject and report to the Lieutenant-
Governor.
Chapter 19 of 3 Wm. TV, was an Act passed for the more
easy redemption and foreclosure of mortgages, but the results
of the report more fully appear in ch. 52 of 3 Wm. IV.,
*^An Act for amending the practice of the Court of Chan-
cery and diminishing the expenses thereof."
90 History of the Court of Chancery in Nova Scotia,
Sec. 1 empowers and requires the Master of the EoUs and
Chancellor from time to time to make such rules and course
of practice as will reduce the great prolixity, expense, and
delays of the proceedings, business, and pleadings under the
present practice, as shall be deemed most expedient and
effectual for the ease of the suitors therein.
Sec. 2 enacts that in all matters not regulated by the
present practice, or the rules and orders to be made, the prac-
tice of the High Court of Chancery in England shall be fol-
lowed until the same shall be changed under the Act.
Sec. 3 abolishes certain formal proceedings, etc.
Sec. 4 enables the Court of Chancery to use the same
powers of execution to enforce its judgments and decrees as
are in use in the Supreme Court.
Sec. 5 enables the Chancellor to establish a proper seal
for the Court.
Sec. 6 enables the Master of the Eolls to sign all ortters
and decrees made by him, and in case of decrees makes the
Chancellor's signature unnecessary when he is absent from
Halifax, but provides that the enrolment of all decrees
be signed by the Chancellor. It further constitutes the
Master of the Eolls the responsible adviser and Judge of the
said Chancery Court.
Sec. 7 provides that a Master Extraordinary of said Court
shall be commissioned and appointed in each county or dis-
trict of the Province, and gives every such Master power to
administer oaths in proceedings to be had in the Court and
to act as an Examiner of said Court.
Sec. 8 validates all sales of real estate made under decree*
of the Court, and empowers sales to be made by the Court
in future.
Sees. 9 and 10 refer to matters not necessarj to observe
upon here.
Sec. 11 extends to the Court of Chancery the right to
take evidence de iene esse as in the Supreme Court.
Sec. 12 enables the Court of Chancery to permit the
examination of witnesses viva voce before the Court.
History of the Court of Chancery in Nova Scotia, 91
From a consideration of this statute it will be seen that
a number of useful reforms were made. For the first fime
the Master of the Kolls is constituted by statute a Judge in
Chancery with extended powers. It would seem that up to this
time the Chancellor's signature was necessary to the validity
of all rules and orders, but this is now dispensed with, and in
decrees when he is absent from the Province. The process
of the Court is simplified in respect to execution of decrees,
and a settled mode of procedure ratified by statute, and I
should think a very great improvement was made in allowing
witnesses to be examined viva voce in Court. Hitherto the
practice was to have them examined by means of interroga-
tories before examiners, which can never be as satisfactory as
in open Court. I observe that Stewart signed all rules with
the statutory title of Responsible Adviser and Judge of the
Court of Chancery.
I have already adverted to the rules and orders which
were passed and the 'great reforms eventually effected in the
proceedings in Chancery under the authority of this statute.
One curious feature is brought out by the statute 5
Wm. lY. ch. 26, that the then Master of the Rolls, Mr.
Fairbanks, was at the same time a member of the House
of Assembly. It was then provided that thereafter no per-
son holding the office of the Mai>ter of the Rolls or Judge
of the Court of Vice-Admiralty should be eligible to be
elected, and further provision was made for Mr. Fairbanks
to resign his seat. It strikes one as singular that a Judge
should have been permitted to retain a seat in the Legisla-
ture, but I believe it is not without precedent in England,
where the Master of the Rolls at one time sat in the House
of Commons.
In 1848, chap. 21 of 11 Vic. was passed, making the
Judges of the Supreme Court and Master of the Rolls
independent of the Crown. It provides that, notwithstand-
ing their commissions are only during pleasure, and that on
the demise of her Majesty they would become vacant,
they should hold their respective offices during good be-
haviour, and that they should not cease to hold them by
92 History of tJie Court oj Chancery in Nova Scotia,
reason of the death of the Sovereign. It further provides
that in case of any vacancy it shall be lawful for the Gover-
nor, under the Great Seal of the Province, to appoint a fit
and proper person until the Eoyal pleasure shall be known.
The statutes which I have mentioned comprise all the
legislation touching the Court of Chancery until the final
Act was passed in 1855 which swept it out of existence, and
to the consideration of which I now turn.
The statute which completed the destruction of the
Court of Chancery in this Province was passed in the session
of 1855. It is chapter 23, entitled "An Act for abolishing
the Court of Chancery and conferring Equity Jurisdiction
on the Supreme Court."
Sec. 1 provides that " the Supreme Court shall have
jurisdiction in all cases heretofore determinable by the Court
of Chancery, and shall exercise the like powers and apply
the same principles of equity as justice may require, and as
have heretofore been administered in that Court."
Sec. 2 provides that the practice of the Supreme Court
now or hereafter to be established as far as it is applicable
thereto shall be observed, and in any case where the provi-
sions of the practice and this Act shall not apply, the prac-^
tive of the English Court of Chancery shall be adopted.
The remaining sections make further provisions respect-
ing jurisdiction and procedure in the Supreme Court in
equitable suits, provide a pension for the Master of the
Rolls, the Hon. Alexander Stewart, and the Registrar; and
the concluding section brings the Act into operation on
1st August, 1856.
Thus was brought to its end, after an existence of more
than a century, the old Court of Chancery in the Province
of Nova Scotia. Opinions have varied, and doubtless will
always vary, as to the wisdomi of this step. The passage of
time — now nearly half a century — has greatly obscured some
of the underlying causes which led to such a momentous
change in our judicial procedure. It is doubtful if these
will ever be perfectly imderstcod, but from the newspaper
History of the Court of Chancery in Nova Scotia, 98
discussions at the time, the reports made to the Legislature,
and the debates in the House of Assembly, we can to some
extent judge of the spirit and motives which influenced the
Legislature.
The spirit of judicial reform was in the air, not only as
regards the Court of Chancery, but also the other Courts of
the Province. On 1st February, 1849, the House of Assembly
passed a resolution that a ^'committee be appointed to in-
quire into the general jurisprudence of the Province and prac-
tice of the Supreme Court, and to report to this House by
bill, or otherwise.'^ On this committee were Howe, John-
ston, Young, Harrington, Henry, Marshall, and Creelman.
Nothing appears to have resulted from the labours of this
rommittee. On the 4th March, 1851, a resolution was
passed to appoint a select committee to take into considera-
tion the propriety of abolishing the Court of Chancery, on
which were appointed Johnston, Marshall, Harrington,
Young, Henry, Killam., and Fulton, and on the 28th March,
1851, Mr. Henry reported and presented a bill to abolish
the Court of Chancery and to transfer Equity jurisdiction to
the Supreme Court. This bill passed the lower House, but
was thrown out by the Legislative Coimcil. As a result of
this, on the 7th April, 1851, Mr. Johnston moved that a
commission be appointed to inquire into the practice and
proceedings of the Courts of Law and Equity with a view of
transfer of the Equity to the common law jurisdiction, if it
be practicable, and to prepare a bill. The commissioners ap-
pointed were Brenton Haliburton, C.J., Mr. Justice Bliss,
J. B. Uniacke, and W. A. Henry. Their report is to be
found in the House of Assembly Journals, 1852, Appendix
i^o. 73. After reporting elaborately on the proposed changes
in the practice of the Supreme Court, they make the follow-
ing observations:
"Although the expediency of transferring the jurisdic-
tion of the Court of Chancery to the Court of common law
has been imder our consideration, neither the time at our
command, nor the materials and information within our
94 History of the Court of Chancery in Nova Scotia,
reach, have been such as to enable the commissioners to ar-
rive at any conclusion, and having perceived the question
of Chancery reform has been submitted to the consideration
of a commission in England, whose report has been sub-
mitted to Parliament, they have been influenced by a desire
to avail themselves of the result of the investigation before
coming to a conclusion on this difficult and important
branch of their inquiries."
It will be interesting to call attention here to a fact which
appears from correspondence published in the Journals of
the House of 1852, that the bill for the abolition of the
Court had been introduced, and passed the Assembly without
even giving notice to the Master of the KoUs of such inten-
tion, apart from the still more remarkable fact that no re-
port or investigation on the subject had been laid before the
House. This is noted here as indicative of the spirit which
must have inspired the governing parties in the Legislature
in respect to the Court, and the Master of the Eolls.
Their final reports on the abolition of the Court of Chan-
cery will be found in the Assembly Journals, 1853, Appendix
No. 16. The commissioners were unable to agree on any
report and were requested to submit their individual views.
Only three did so. Mr. Young gave his own views, and
whatever may be our opinion on the question, a perusal of
this paper does not show that profound and practical know-
ledge which we should expect from a legislator and lawyer
of his experience. On the other hand, the views of the chief
Justice and Judge Bliss display the result of long experience
and thorough acquaintance with the whole subject, expressed
in vigorous and clear language. While Mr. Young in strong
terms contended for the suppression of the Court, the Chief
Justice and Judge Bliss pointed out the erroneous theory
on which those who desired it abolished were building, and
exposed the failure to which it was doomed, and the very
mischiefs which afterwards followed. The ablest defence,
however, made for the Court was by the Master of the Eolls
himself. This defence is not to be found in the Journals of
Hi4itory of tJie Couirt of Chancery in Nova SfifiUa, 4)5
the Assembly, although it was in the fonn of a letter ad-
dressed to the commissioners, and he requested its pu/blica-
tion with their report. Why it should have been excluded
does not appear, but Stewart took care to have it recorded
in the record books of the Court. It is too long to be re-
produced here, but some of the points deserve notice. The
principal grounds urged for the abolition of tjie Court ^e
uo doubt fully expressed in Mr. Young's speech introducing
the bill in the session of 1855. " The great objection," sivys
Mr. Young, " to the Chancery as now constituted is that q^ts
forms, delays, and expensive machinery exclude a va^t
amount of business which ought to be adjudicated on by it.''
The answer to these charges in Stewart^s letter to -the
commissioners is very decisive and the facts in support
strong. He points to the great reforms and changes which
had been made within recent years, simplifying the pcaotice,
and lopping off many useless forms in the conduct of ihe
proceedings. In this both the Chief Justice and Judge Bliss
corroborate his statements in their reports. As to delays,
he significantly calls their attention to the fact that not one
cause remained in his Court undisposed of which had been
heard before him. In respect to expenses, while giving
figures to show that they are not large in comparison with
other Courts, he at the same time reminds them that the
scale of costs and fees to be taken are fixed by the Legisla-
ture, and not by him. After explaining at some length ^ifie
objections to the proposed transfer of the Chancery business
to the common law Courts, he challenges those who are
making and repeating the charges against the Court to come
forward with proof of them. This was never done. On
30th March, 1853, a resolution was passed requesting «the
Lieutenant-Governor to appoint a commission of suitable
persons to prepare a bill for the abolition of the Court of
Chancery. The Act was founded on that report to which I
have above referred, and which with the letter of the Master
of the EoUs will be found published in extenso in a pamphlet
embracing all the papers on the history of this Court in Nova
Scotia,
96 History of the Court of Chancery in Nova Scotia,
Now, apart from the action of the House of Assembly
which I have briefly summarized, it is plain to those who read
the speeches and newspapers of the day that other motives
contributed to the result. Stewari; was a man of strong and
independent character, and in the course of his political
career had aroused the bitter enmity of his opponents, and
had also incurred the iU-will of some of his former colleagues.
Among them were the most prominent lawyers of the time
on both sides of politics. In striking a blow at the Court,
they were striking a blow at him, and to some extent at
least it would seem that the Court owed its extinction to the
dislike felt towards the head of it. This oflPers the best
explanation of the unanimity with which all parties acted.
Whether on the whole a mistake was committed in abolish-
ing the Court of Chancery or not, is fairly open to argument.
Looking at the question in the light of experience, I come
to the conclusion that the administration of law and equity
by one tribunal is best, and most conducive to the interests
of suitors, and in so far as that was the object of the Legis-
lature it was wise. This object, however, was not accom-
plished except in name, for our legislators of that day had
not grasped the basis on which the fusion of law and equity
could be brought about. Indeed, it was not successfully
accomplished in England for many years after, and then
only after most patient and searching investigation by the
greatest legal minds in the country. What it did eflPect was
a serious muddle in the administration of justice, and its
result was most injurious in its effects on the legal profes-
sion. It is easy to destroy an old existing institution, but
it takes time and men of genius, knowledge, and experience
to reconstruct. The best evidence of the mistake then com-
mitted was that in the very short period of eight years the
Legislature found it necessary in the public interests to
re-establish the same Court under another name — the Court
of Equity — to the Judge of which all equitable business waJs
again exclusively assigned. Great injury was brought upon
the legal profession by the abolition of the Court of Chan-
cery, in leading to the neglect of the study of equity juris-
Histoi'y of the Court of Chancery in Nova Scotia, 97
prudence. The lawyers of the succeeding generation, and
until the Judicature Act was adopted in this Province, devoted
their energies almost entirely to the common law; not realiz-
ing the necessity, they rarely acquired any thorough know-
ledge of equity principles and procedure. Equity as adminis-
tered in the Court of law — at least up to the time the late
Mr. Justice Eitchie became Equity Judge — ^was not remark-
able for its depth and learning and adherence to sound
principles, and there was little encouragement to pursue it.
Happily, this defect in our Provincial bar has been re-
moved, and we have able and experienced equity lawyers
practising in our Courts, capable of holding a first place in
any Court in the British dominions. The rising generation
of lawyers are now taught and imbued with a general know-
ledge of equity jurisprudence without which it would now
be impossible to. follow their profession.
Although not immediately bearing on my subject, it may
be interesting in conclusion to state that by chap. 10 of the
Acts of 1864, the Court of Chancery under the name of the
Court of Equity was re-established, using the procedure of the
Supreme Court as far as applicable, but it was found neces-
sary largely to amend this to adapt it to equitable proceed-
ings. That distinguished lawyer and legislator, the Hon.
James W. Johnston, was appointed to the office of Equity
Judge, and at his death he was succeeded by the eminent
and well-known Judge, John W. Eitchie. On his death
he was succeeded by Alexander James, who was then a
Judge of the Supreme Court. During his time the Equity
Court as a distinct tribunal was again abolished in 1884,
when the Judicature Act came into operation. The fusion
of law and equity was then in reality accomplished, and both
are now administered by all the Judges of the Supreme
Court. The title is still retained by Mr. Justice Graham,
who, as such, has jurisdiction in the Court of Marriage and
Divorce, but in other respects his position is the same as the
other Judges.
This completes the history of three of our principal
Courts of Judicature, that is to say, the Supreme Court, the
98 History of the Court of Chancery iu Nova Scotia.
Inferior Court of Common Pleas, and the Coiart of Chancery.
There remains to be written the history of the Court of Vice-
Admiralty — ^which from all I have observed will form a very
interesting chapter in our judicial annals — the Court of
Probate, the Court of Marriage and Divorce, the Court of
Error and Appeal, and the Court of Escheats. My object in
placing the history of these tribunals before the public has
been to rescue from oblivion many interesting and important
facts, scattered around in our Court and Provincial records,
not easily, or at least not readily, attainable by those desiring
to know something about them. It has always appeared to
me that at least members of the legal profession should pos-
sess this knowledge, and that it should not be altogether un-
interesting to the general public.
The particulars I have given, it is to be understood, are
by no means exhaustive of the subject, and for those who
d^ire more extended information I would refer them to the
CJiancery and Provincial records from which I have gathered
these fragments.
AZAT TKEh
**••«> of tht Court of ohanos
3 6105 S44 STaS"
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