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matter-both (1) as to the date upon which such introduction took place, (2) the extent of such introduction, (3) the effect to be given to that ordinance of the old Assiniboià Council, to which we shall have to refer, as well as (4) the extent of the introduction subsequently effected by provincial Acts—was considered by the Court of Queen's Bench (8) upon an appeal from the judgment of Killam, J. (t), in Sinclair v. Mulligan. The first three questions are exhaustively discussed in the latter judgment, and the opinions expressed therein were adopted by the full Court, Mr. Justice Dubuc, however, expressing some doubt as to the correctness of the construction placed by the other judges upon the Assiniboia ordinance. The holding of the Court may be summed up in the language of Taylor, C.J.:
“Until 1870, the law of England, at the date of the Hudson's Bay Company's charter, 1670, was the law in force here, and indeed, except as to matters which have been dealt with by the Dominion parliament, or which are within the jurisdiction of the Provincial legislature and have been dealt with by it, that is the law of this province at the present day.”
In his judgment, Mr. Justice Killam adopts the view, upon which enough has been said in chapter V., ante, that the question of applicability is one proper for consideration. The ordinance of 1862 (u) he construed as a law regulative of practice and procedure merely, and not as a law bringing forward the date as of which English law, in the general sense of that term, was to be deemed to be introduced into those Territories—a question as to which the doubt expressed by Mr. Justice Dubuc seems to have much to support it. In the result, the Statute of Uses was held to be in force, the Statute of Enrolment was held inapplicable, and the Statute of Frauds not to be in force because of date
(8) 5 Man. L. R. 17.
(u) The language of this ordinance was very much the same as that of s. 38 of 34 Vic. c. 2 (Man.), quoted post.
subsequent to the H. B. Co.'s charter; and a verbal bargain as to land was given effect to under the Statute of Uses.
One of the first Acts of the Manitoba Legislature (34 Vic. c. 2), was to establish a Supreme Court for the province, having the jurisdiction distributed in England between the Superior Courts of Law and Equity and of Probate. By sections 38, 51 and 52 of this Act it was provided :
“ 38. As far as possible consistently with the circumstances of the country the laws of evidence and the principles which govern the administration of justice in England shall obtain in the Supreme Court of Manitoba.
• 51. So much of the laws of the Governor and Council of Assiniboia as may be inconsistent with this Act, is hereby repealed.
“ 52. So much of the laws of the Governor and Council of Assiniboia as are not repealed by the preceding section, or are not inconsistent with this Act, or with any other Act to be passed during this session, shall be extended to the whole of the province of Manitoba."
Section 38 would no doubt receive the same construction as the ordinance of 1862 afterwards received in Sinclair v. Mulligan (see ante), and be limited to the regulation of practice and procedure, and this statute therefore is of importance upon this question only as putting aside any doubt as to the extent of the territorial operation of the laws of the Assiniboia Council.
In 1874, by 38 Vic. c. 12 (see Con. Stat. Man., 1880, c. 31), it was enacted:
“ The Court of Queen's Bench () shall decide and determine all matters of controversy relative to property and civil rights according to the laws existing, or established and being in England, as such were, existed and stood on the 15th day of July, 1870, so far as the same can be made applicable to matters relating to property and civil rights in this province
(r) “The Supreme Court of Manitoba" was given this name by 35 Vic. c. 3.
with a clause as to evidence, and practice and procedure, to the same effect. Were it not for the sharp distinction drawn between law and practice in this enactment, it might be contended that, so far as the general adoption of English law is concerned, it should receive the same construction as the Assiniboia ordinance of 1862, and be limited to the introduction of English practice and procedure. It has, however, been uniformly treated as introducing general English law as it stood on the 15th of July, 1870, and there can be little doubt that such is its proper construction.
In reference to the limited operation of any provincial statute introducing English law, it seems impossible to escape from the result indicated by Taylor, C.J., in the passage of his judgment which we have italicized (w). From time to time the parliament of Canada has passed statutes introducing certain portions of the statute law of the Dominion, passed prior to 1870, into Manitoba. Statutes since 1870 are of course in force there unless expressly excepted. But there had been no general provision made as to those matters which are within the legislative competence of the Dominion parliament, so that the law in Manitoba as to all such matters was, until 1888, the English law of 1670. As to matters within the legislative competence of the provincial legislature there has been, as we have seen, such general legislation—not, indeed, in terms so confined, but judicially determined to be so limited. In Canadian Bank of Commerce v. Adamson (0) it had been held that the English Bill of Exchange Act (18 & 19 Vic. c. 67), was in force in Manitoba, but this decision was based upon a construction of the ordinance of 1862, which was not followed in Sinclair v. Mulligan. However, by 51 Vic. c. 33 (Dom.)—for the removal of doubts—the difficulty suggested in reference to the introduction of English law in relation to matters other than
(w) Ante, p. 598.
(.5) 1 Man. L. R. 3.
those within the legislative competence of a provincial legislature was removed, and it was enacted that:
** The laws of England relating to matters within the jurisdiction of the parliament of Canada, as the same existed on the 15th July, 1870, were from the said day and are in force in the province of Manitoba, in so far as the same are applicable to the said province, and in so far as the same have not been and are not hereafter repealed, altered, varied, modified, or affected by any Act of the parliament of the United Kingdom applicable to the said province, or of the parliament of Canada." the legal rate of interest, however, being placed at six per cent., as in the other provinces.
The same principle in reference to the introduction of English statutory law of local application in England has been invoked in Manitoba, as in the older provinces (y). In Attorney-General v. Richard (2), it was held by Chief Justice Wallbridge, that the Imperial statute 18 & 19 Vic. c. 90, under which costs may be ordered against the Crown in England, was not introduced into Manitoba by the provincial Act to which we have above referred :
" That Act is local as to England, and required a special Act to make it applicable to the Isle of Man; besides, the manner of obtaining costs pointed out under it could not apply here. We have not the officers, or the means territorially of enforcing a demand for costs, and the court will not make a decree which it cannot enforce."
Public Lands in Manitoba.
Upon the formation of the province of Manitoba (a), provision was made for the administration by the Governor in Council of the public lands of that province as a federal asset. Statutes have from time to time been passed making provision for the issue of Letters Patent granting such lands to purchasers from the Hudson's Bay Co., to
(y) Ante, p. 120.
(z) 4 Man. L. R. 336. (a) See 33 Vic, c. 3, s. 30, ante, p. 595.
half-breeds, squatters, and subsequent settlers (6). A large portion has been granted to the Canadian Pacific Railway Co., under the terms of its charter, and up to the present time the only concession to the province is that contained in R. S. C. c. 47, under which swamp lands are to be transferred to the province, and an endowment of 150,000 acres is provided for the University of Manitoba. The additional territory since annexed to the province is in the same position, being subject moreover to interests acquired therein, prior to such annexation, under Dominion legislation.
A very interesting question came before the Court of Queen's Bench in Manitoba, in 1891, in reference to the power of the Canadian Pacific Railway Co. to hold land in that province without taking out the license required by provincial statutes (C). In delivering the judgment of the Court, Mr. Justice Killam says:
"By the Act, 49 Vic. c. 11, s. 4 (Man.), «No company, corporation, or other institution not incorporated under the provisions of the statutes of this province, shall be capable of taking, holding, or acquiring any real estate within this province unless under license from the Lieutenant-Governor in Council, under any statute of this province.' Several statutes have, from time to time, been passed by the provincial legislature, authorizing the issue of licenses to corporations, permitting them to take and hold lands or securities upon lands in Manitoba. These liave been repealed and consolidated and to some extent amended by the Act, 53 Vic. c. 23, s. 15 (Man.). The C. P. R. Co. has taken out no license under any of these statutes. By the Act, 44 Vic. c. 14 (Dom.), provision was made for the extension of Manitoba by including within it certain territory, formerly a portion of the North-West Territories. One term of this extension was, as provided by section 2, sub-section (1): • The said increased limit and territory thereby added to the province of Manitoba shall be subject to all such provisions as
(1) See R. S. C c. 48.