"But while legislation on the subject of imprisonment for debt may be, under some circumstances, involved in legislation on bankruptcy and insolvency, and therefore fit matter to be dealt with by the Dominion parliament, it by no means follows that in no circumstances can a local legislature legislate with reference thereto. On the contrary, there may be many cases where the abolition or regulation of imprisonment for debt is in no way mixed up with or depending on insolvency. In this case, in which application has been made for discharge under a local Act, the party does not appear by the affidavits to be in anywise amenable to the Insolvent Act of 1869, nor a party who could be brought within the operation of that Act; nor, so far as he is concerned, or as applicable to his case, are the clauses of the local Act under which he seeks the discharge, in any way in conflict with that Act. The defendant simply appears in the position of a person not subject to the Insolvent Act of 1869, and whom the legislature has declared shall not be proceeded against for recovery of a debt by imprisonment, without reference to any question of solvency or insolvency; therefore there is no reason why he should not receive the benefit of an Act passed by the local legislature for regulating the procedure in civil suits in relation to the civil rights of parties in the recovery of debts. So far therefore as the defendant is concerned-and we limit our decision to the particular circumstances of this individual case there is no reason why the Act should not have full force and effect. Regina v. Chandler, which was so much pressed on us, is, we think, entirely distinguishable from the present case." See also, Re De Veber (k), in which an Act of the New Brunswick legislature, providing that as against an assignee of the grantor under any law relating to insolvency, a bill of sale should only take effect from the date of its filing, was held to be intra vires. The provinces down by the sea are not at one upon this question. In Johnson v. Poyntz (1), it was held by the Nova Scotia Courts that a provincial legislature could confer upon a newly created provincial court, jurisdiction to entertain an application for (k) 21 N. B. R. 401; 2 Cart. 552. (1) 2 Cart. 416; 2 Russ. & Geld. 193. the discharge of an insolvent debtor under a provincial Act passed prior to Confederation, such legislation, it was held, not coming within this sub-section; while, on the other hand, in the case of Munn v. McCannell (m), the Supreme Court of Prince Edward Island held to be ultra vires, a provision in the Indigent Debtors Act of that province, providing for the discharge of an insolvent debtor. The language above quoted of Sir Montague Smith in delivering the judgment of the Privy Council in Cushing v. Dupuy (n) would seem to cover the various matters discussed in the above cases. As relating to "civil rights in the province" a provincial legislature has full power to legislate thereon, subject to the operation of any general insolvency legislation passed by the Dominion parliament. In Murdoch v. Windsor & Annapolis Railway Co. (0), Mr. Justice Ritchie, sitting as Equity Judge, held invalid, as an infringement upon the powers of the Dominion parliament under this sub-section, an Act of the Nova Scotia legislature, entitled "An Act to facilitate arrangements between Railway Companies and their creditors." The Act provided that the company might propose a scheme of arrangement between the company and its creditors, and file the same in court, and that thereupon the court might, on application by the company, restrain any action against the company, upon such terms as such court might see fit. The Act also provided that notice of filing the scheme should be published, and that thereupon no process should be enforced against the company without leave of the court. Mr. Justice Ritchie considered the Act as one which could have reference only to a company which was insolvent. That a company, having become insolvent, should have the power, in order to settle with all its creditors alike, of declaring itself such, and that on such declaration the remedies of creditors should be suspended, would not be unreason(n) 5 App. Cas. 409. (0) 3 Cart. 368; Russ. Eq. Rep. 137. (m) 2 P. E. R. able; but that the legislature should give to a company, solvent and able to meet all its liabilities, the power of staying all proceedings on the part of their creditors, by merely presenting and filing a scheme of arrangement with them, would be incomprehensible. The legislation, in his view, must have been passed on the assumption of the insolvency of the company. And, upon this view of the Act, he held it ultra vires. The same judge held in Re The Wallace-Heustis Grey Stone Company (p), that the Nova Scotia Winding-up Act, was intra vires. It made provision for the winding-up of any company where a resolution to that effect was passed by the company, or where the court so ordered at the instance of a contributor, on it being made to appear that such order was just and equitable. The Act could be enforced, although no debts were due by the company, but could not be called into operation by a creditor. Such an Act, it was held, had no necessary relation to bankruptcy and insolvency, but was an Act respecting property and civil rights in the province. The decision in Murdoch v. Windsor & Annapolis Railway Co. must be considered overruled by the judgment in Re Windsor & Annapolis Railway (pp), in the Nova Scotia Supreme Court, in which the same Act was upheld so far as it provided for the confirmation of a scheme, propounded by the company under the Act, for cancelling certain debentures, and for the allotment of new stock in lieu thereof bearing a low rate of interest. The decision, however, it should be noted, is placed upon the ground that the Windsor & Annapolis Railway Company was a local work or undertaking within the meaning of section 92, sub-section 10, and that so far as any such local undertaking is concerned, the impugned Act was within the legislative competence of the provincial legislature, that the scheme propounded by the company had no relation whatever to (p) 3 Cart. 374; Russ. Eq. Rep. 461. the insolvency of the company, and was simply a scheme for changing the form of the stock. In this view of the case, reliance was placed upon L'Union St. Jacques v. Bélisle (q), and the Act in its relation to local undertakings upheld upon the authority of that case. We may also refer to Re Briton Medical and General Life Association (r), cited in notes to section 91, ante, p. 346 as the Act there referred to might, perhaps, be said to fall within this sub-section 21. The deposit required by that Act to be made by all corporations desiring to do business in Canada, was held to be, upon the true construction of the Act, a special fund applicable in case of insolvency for the benefit of Canadian policy holders only. In McClanaghan v. St. Ann's Mutual Building Society (8), it was held that the Dominion parliament has no power to pass an Act providing for the liquidation of all building societies, whether solvent or not, in the province of Quebec. In Coté v. Watson (t), it was held by the Superior Court of Quebec that a provincial legislature has no power to impose a tax on the sum realized from the sale of an insolvent's effects, or to impose upon an assignee under that Act, or his agent, any penalty for not taking out a license to sell by auction the goods of the bankrupt. In view of Bank of Toronto v. Lambe, this case cannot be considered law. 22. Patents of invention and dis covery. We have already had occasion to point out that this sub-section embraces what may now be considered almost (q) L. R. 6 P. C. 31. See notes to s. 92, s-s. 16. (r) 12 O. R. 441. (8) 2 Cart. 237; 24 L. C. Jur. 162. (t) 2 Cart. 343; 3 Q. L. R. 157. CAN. CON.-26 a distinct branch of jurisprudence-patent law (u). The language of the Judicial Committee in Cushing v. Dupuy (v), as to the necessity for regulating "procedure" in connection with the handling of estates under bankruptcy and insolvency legislation, applies with almost equal force to legislation under this sub-section 22. At the same time we have to note that comparatively few cases have arisen calling for a decision as to the line of division which properly marks out the sphere of provincial legislative authority in connection with patent litigation, but so far as the decisions go they uphold the authority of the Dominion parliament to regulate procedure in such cases. In Aitcheson v. Mann (w), the Queen's Bench Divisional Court held, affirming the decision of Boyd, C., that section 24 of the Patent Act of 1872, which requires that the trial of an action for the infringement of a patent must be tried in the court nearest the defendant's residence or place of business, was intra vires. In Mousseau v. Bate (x), it was held that proceedings in the nature of a Sci. Fa. to set aside letters patent of invention issued under a Dominion statute, cannot be instituted in the name of a provincial Attorney-General, but can only legally be brought by the Attorney-General for Canada. In connection with this case, reference should also be had to Regina v. Pattee (y), in which the late Master in Chambers (Mr. Dalton, Q.C.), held that the Attorney-General of Ontario was the proper officer to grant a fiat for the issue of a writ of Sci. Fa. In another view, the case is noteworthy as containing one of the earliest expressions of opinion in reference to the necessary co-extension of the executive and legislative functions of a provincial government. So far as concerns this sub-section, however, the judgment is expressly limited to the case of a subject domi (u) Ante, p. 236. (x) 27 L. C. Jur. 153; 3 Cart. 341. (y) 5 P. R. (Ont.) 292. |