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granted with a condition that the grant should be void if the land were not settled on within a certain time, could be subsequently granted without inquest of office.”
The same view was thus expressed in a later case (h) involving consideration of the same statute :
“ The court has uniformly decided that when there is plena possessio held against the Crown-particularly under color of title—the Crown must re-invest itself with the possession before it can grant; and, if it grant while it is out of possession, that grant is void under 8 Henry VIII. c. 16, and 18 Henry VIII.
In a still later case (i), involving consideration of 21 Jac. I. c. 14—an Act in pari materia with the statutes of Henry, above referred to-Young, C.J., speaking of Uniacke v. Dickson and the statute there in question, says:
“The statute of James is of a different character. The object of the former was to extend, that of the latter is to limit and restrain, the prerogative of the Crown, and that for a highly beneficial purpose, and for the protection and benefit of the subject. What class of persons is better entitled to the favor of the legislature and the courts than the men who transform a rude country into smiling habitations, and fit it for the use and enjoyment of man? I look upon this statute of James as peculiarly suited to our condition and circumstances, and to have the same title to be considered part of our law, and on the same principle on which we have always recognized the Statute of Uses and the statute de Donis until the present enactment abolishing estates-tail."
The view expressed by Halliburton, C.J., in Uniacke v. Dickson, that after a legislature has been duly constituted in a colony, and has, so to speak, settled down to its work, courts of law should be very cautious in giving effect to Imperial Acts which had never been previously acted upon
(h) Scott v. Henderson, 2 Thomp. 115. (i) Smyt'ı v. M:
Dull, !): 1. ?:4.
in the colony (j), has evidently had a most powerful effect in subsequent cases. For instance, the court refused to visit upon the sheriff of Halifax penalties to which he would have been liable under English statutes, because the Nova Scotia legislature “ have wisely legislated for the whole matter.
The imperative words of the English statute throw the responsibility upon the sheriff in England, but these words are not to be found in our statute, and therefore neither law nor justice throw it upon him here" (k).
And, in like manner, the Imperial statutes 28 Edw. III. c. 13, and 8 Hen. VI. c. 29, giving aliens a right to a jury de mediatate linguae, and the other statutes with that object, were held (1) not to be in force in Nova Scotia, because :
“ In the numerous Jury Acts, extending from 1759 down to the Revised Statutes (2nd ser.), not the slightest allusion nor provision for this privilege of aliens
is to be found. This long course of legislation, coupled with the fact that it has never before been claimed in our courts, though the idea, and the usage in the mother country, were familiar to every lawyer, is strong evidence of the opinions held by our judges and legislators.”
In a late case (m), the Supreme Court of Nova Scotia had to consider the question whether or not the imperial statute 13 Geo. II. c. 18, requiring notice to a convicting justice, of a motion for a writ of certiorari, and limiting the time for moving for such writ, to six months from conviction, was in force in the province. Reference was made by
() See the passage, ante p. 81.
(m) Reg. v. Porter, 20 N. S. R. Reference is made to the fact that in Upper Canada it had been always treated as in force there. It appears to have been acted on in Nova Scotia. See Reg. v. McFadden, 6 R. & G. 426, and McDonald v. Ronan, 7 R. & G. 25. As to New Brunswick, see post, p. 94.
Ritchie, J., in delivering the judgment of the court, to Uniacke v. Dickson. After quoting the caution of Halliburton, C.J., above referred to, the opinion proceeds:
“If this caution was necessary forty years ago, there is much more necessity for caution now, in view of the fact that, since then, very many Acts have been passed, regulating the practice and procedure of this court, and the removal of causes from inferior courts.
Now, our legislature has passed several statutes on the subject.
I cannot see that 13 Geo. II. c. 18, is obviously applicable and necessary to our condition in this province; and as our legislature has undertaken to legislate in the matter of certiorari, and has enacted many of the provisions of the English statutes on that subject, omitting those contained in the Act in question, I have been unable to come to the conclusion that that Act is at present in force here."
A number of Imperial Acts, passed prior to the settlement of Nova Scotia, have been acted upon without question, as having been introduced into the colony upon its settlement. The Statute of Uses was, without question, treated as being in force within the province (n), while its companion—the Statute of Enrolment—would appear to have been thought inapplicable, by reason of the lack of facilities for enrolment (o). The Imperial Acts, 31 Hen. VIII. c. 1, and 32 Hen. VIII. c. 32, allowing partition between joint tenants and tenants in common, were held to have been introduced into Nova Scotia as part of the English law; and the Nova Scotia legislature, in passing R. S. N. S. c. 139, s. 1, was held to have intended to make the remedy thereby provided, concurrent with the remedy under those statutes of Henry VIII. (p). In the case of “ The Dart” (9), the provisions of Magna Charta, and of the Statute of Staples, 27 Edward III. c. 17, which provided that, “In case of war, merchant strangers
(n) Shey v. Chisholm, James, 52.
(0) Berry v. Berry, 4 R. & G. 66; see the contrary holding in New Brunswick, Doe d. Hanington v. McFadden, Berton, 153, post, p. 92.
(P) Doane v. McKenny, James, 328. (9) Stewart.
shall have free liberty to depart the realm with their goods freely,” were enforced in favor of an American vessel, seized before the commencement of the American war of 1812. The Act 13 Eliz. c. 5, respecting fraudulent conveyances, seems to have been acted upon without question (r), as also the Act 32 Henry VIII. c. 9, against the buying of pretended titles (8)
Upon a review of these Nova Scotia decisions, it would certainly appear that the admission of Imperial statutes, as operative within the province, has been the exception : those which have been held to be in force, being, in the main, statutes in amelioration of the rigors of the common law, Acts in curtailment of prerogative or in enlargement of the liberty of the subject. To a greater extent than has been the case in either New Brunswick or Ontario, the judges of Nova Scotia have deemed it the office of legislation, rather than of judicial decision, to bring into operation within the province, the provisions of Imperial statutes not originally capable of being madle operative, but which might be thought suitable to the changed circumstances of the colony. And in the same spirit, it was laid down (1), that where an English Act is held to be in force, the courts “will not give it a further extension than it received in the land of its origin. The operation of an English statute may be contined, I take it, within narrower bounds by the circumstances and situation of the colony to which it has been brought; but it can never, as it appears to me,
(r) Tarratt v. Sawyer, 1 Thomp. 46 (2nd ed.); Moore v. Moore, 1 R. & G. 525; and Graham v. Bell, 5 R. & G. 90.
(8) Wheelock v. Morrison, 1 N. S. D. 337; Scott v. Henderson, 2 Thomp. 115. Other Imperial Acts which have been treated as in force in Nova Scotia, are: 13 Edw. I. c. 18 (elegit), Caldwell v. Kinsman, James, 398; 2 Hen. IV. c. 7 (judgment of nonsuit), Grant v. Protection Ins. Co., 1 Thomp. 12 (2nd ed.); 7 Hen. VIII. c. 4 (damages in replevin); Freeman v. Harrington, 1 Old. 358; and see Congdon's N. S. Dig., col..
1336, et seq.
(1) Freeman v. Morton, 2 Thomp. 352, per Bliss, J.
statute of greater effect or more enlarged construction than was given to it in the intention of those by whom it was passed. This is the office of legislation alone.”
New BRUNSWICK.—In this province, we have the same difficulty to contend with as was noted in the case of Nova Scotia, namely, that there are no reports of the earlier decisions in the province during the time when this question would be most frequently under consideration. The earliest reported case (u) in which we are furnished with the opinions of the judges, is Doe dem Hanington v. McFadden (v), in which the Supreme Court of that province had to consider whether or not the Statute of Uses and its companion -the Statute of Enrolment-were in force in the province, and that case has had a very large controlling influence in New Brunswick. Chipman, C.J., quotes with approval the language of Sir W. Grant in Attorney-General v. Stewart (w), and takes as his guide, the principle enunciated in that case—“Whether it be a law of local policy, adapted solely to the country in which it was made, or a general regulation of property, equally applicable to any country, in which it is by the rules of English law that property is governed.” As to the Statute of Uses, no doubt whatever was expressed; the fact that that statute had been generally, if not universally, considered to be in force in the old American colonies, was treated as indicative of the general understanding that the statute was carried by emigrating colonists as part of the law of England relating to real property. As to the Statute of Enrolment, more hesitation seems to have been expressed; but all the judges concurred in treating the two statutes as practically one; and, although the Statute of Enrolment might be somewhat difficult of application in New Brunswick, it seems to have been considered that the machinery of the provincial courts could be utilized in this respect.
(1} See note, ante, p. 79, as to Rex. v. McLaughlin. (1) Berton, 153.
(w) Mer. at p. 160.