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It was pointed out that the extension to the province, of statutes which are in terms confined to the courts of the mother country, is not, by any means, without precedent, and several of such statutes, regulative of the practice in “Her Majesty's Courts at Westminster,” which had always been treated as operative within the province in relation to the superior courts there, were cited (x).

No such clear thread of principle can be discerned in the decisions of the New Brunswick courts as has been noticed in the case of Nova Scotia, and, for that reason, it is somewhat difficult to classify the decisions.

In an early case (y), it was held that the Imperial Act, 32 Henry VIII. c. 39, which authorized the Exchequer Court in England to give relief to Crown debtors, was operative to enable the Supreme Court of New Brunswick to relieve from an estreated recognizance.

Following Attorney-General v. Stewart, it was held (2) that the Statute of Mortmain, 9 Geo. II. c. 36, is not in force in New Brunswick.

In Kavanagh v. Phelon (a), involving a consideration of the fees proper to be paid to a sheriff, it was held that 29 Eliz. c. 4, was not operative in New Brunswick to regulate the sheriff's fees, in cases not provided for by the provincial ordinance upon the subject. Referring to Doe dem Hanington v. McFadden (b), Chipman, C.J., says :

· For the same reason it seems to me that the statute of Eliz. is entirely inapplicable to this or any other colony, and, therefore, is not in force here. It is difficult to conceive of any

(.5) 4 Anne, c. 16 (assignment of bail-bonds); 14 Geo. II. c. 17 (judg. ment of nonsuit); and see Kelly v. Jones, 2 Allen, 473 (43 Eliz. c. 6-certificate as to costs), and Gilbert v. Sayre, ib. 512 (13 Car. II. c. 2—double costs on affirmance in error). See Hesketh v. Ward, 17 U. C. C. P. 607, referred to post.

(y) Reg. v. Appleby, Berton, 397.

(z) Doe d. Hasen v. Rector of St. James, 2 P. & B. 479; see the cases. in Ontario, post. (a) 1 Kerr, 472.

(6) Ante p. 92.

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subject that must be dealt with upon considerations more entirely local, than the proper remuneration to be allowed to public officers." and he refers to the declaration in the provincial ordinance that “there is no law or ordinance now in force regulating sheriffs' fees,” etc., and the regulation of the matter by that ordinance, as indicative of the view of the legislature (c).

Although, as we have said, it is very difficult to classify the New Brunswick authorities upon this question, this much does appear: that in every case the judges of the courts there have endeavored to exercise their best judyment as to the applicability of the Imperial statute to the circumstances of the colony. If any distinction in principle can be drawn between the decisions in New Brunswick and those in Nova Scotia, it would appear to be along the line indicated in the judgment of Halliburton, C.J., in Uniacke v. Dickson—that is to say, Imperial statutes have been denied operative force in Nova Scotia unless clearly applicable, while, in New Brunswick, the tendency, at least of the earlier authorities, seems to have been not to reject them unless clearly inapplicable. At the same time, it must be confessed that this distinction cannot be clearly pointed out in every case.

ONTARIO falls within the class of colonies into whose legal system, English law has been introduced by the will of the colony itself, as expressed in legislative enactment.

In the year 1791, the parliament of Great Britain passed an Act, 31 Geo. III. c. 31, commonly known in

(c) For other New Brunswick cases, see Ex parte Ritchie, 2 Kerr, 75, and Ex parte Bustin, 2 Allen, 211, in which the English statutes as to certiorari proceedings were held not in force ; Wilson v. Jones, 1 Allen, 658, in which 1 Rich. II. c. 12, giving a creditor an action of debt against a sheriff on an escape, was (following an early unreported decision) held not in force, although it was acted upon in Nova Scotia and the older American colonies; and see James v. McLean, 3 Allen, 164, and Doe d. Allen v. Murray, 2 Kerr, 359.

Canada as the Constitutional Act, 1791, by which provision was made for the division of the province of Quebec into two provinces, Upper and Lower Canada, and for the establishment therein of separate governments. During the progress of the war of American independence, there had taken place, from the disaffected colonies into what afterwards became Upper Canada, a large influx of loyal subjects, " born and educated in countries where the English laws were established, and

unaccustomed to the laws of Canada." And as, in 1774, the parliament of Great Britain, by giving to the inhabitants of Canada, then almost exclusively French, the law in accordance with which they had been accustomed to regulate their daily lives, secured their cordial adherence to British connection, despite the enticing words of Washington and his French allies (d), so, in 1791, they established the new immigration in content in the upper province, by giving them a distinct legislature, with the power to adopt such system of laws as they might deem best calculated to secure and advance their own material and religious welfare. Avoiding all appearance of dictation to either province, the Constitutional Act, 1791, simply provided that there should be within each of the provinces respectively, a Legislative Council and an Assembly, and that in each of the provinces His Majesty should have power, by and with the advice and consent of the Legislative Council and Assembly of such province, to make laws for the peace, welfare, and good government thereof, such laws not being repugnant to the Act. All laws, ordinances, and statutes in force within the provinces, or either of them, at the date of the Act, were to remain and continue as if the Act had not been made, except in so far as not expressly varied by the Act—the Act is limited to the making of constitutional changes—or except in 80 far as the same might be there

(d) See Confed. Deb. p. 606; Ryerson, “The U. E. Loyalists in America."

after repealed or varied by the Legislative Council and Assemblies of the respective provinces. The inhabitants of Lower Canada, being content with the law under which they had lived since 1774, made no change; but, in the very first parliament of Upper Canada, by the first Act of its first session, “that was done which no doubt was anticipated and intended as a consequence of erecting Upper Canada into a separate province. Reciting that the provision made by the Quebec Act, 1774 (before alluded to), had been manifestly intended for the accommodation of His Majesty's Canadian subjects, and that the territory comprising Upper Canada had become inhabited principally by British subjects, unaccustomed to the laws of Canada, it repealed the provision in the Quebec Act, 1774, so far as that Act had the effect of introducing the French law into Upper Canada, and enacted, that ‘from and after the passing of this Act, in all matters of controversy relative to property and civil rights, resort should be had to the laws of England, as the rule for the decision of the same'” (e).

The criminal law of England had been in force in the old province, and no legislation was deemed necessary by the legislature of Upper Canada, beyond naming a day, in reference to which the English criminal law was to be considered fixed (so far as Upper Canada was concerned), unless altered by the colonial legislature. This date was fixed by 40 Geo. III. c. 1 (U. C.), which enacted: “The criminal law of England, as it stood on the 17th day of September, 1792, shall be, and the same is hereby declared to be, the criminal law of this province,” subject to any variations therein, effected by ordinances of the old province of Quebec passed after the Quebec Act of 1774. The difference in the phraseology in the two Acts of 32 and 40 Geo. III. respectively, must be carefully noted, for, as will

(e) Per Robinson, C.J., in Doe d. Anderson v. Todd, 2 U. C. Q. B. 82; note the same expression, "property and civil rights," in the B. N. A. Act, s. 92, ss. 13, and s. 94; and see Citizens v. Parsons, L. R. 7 App. Cas. 96.

be seen hereafter, a marked difference in effect has been attributed to these two enactments. In the various revisions of the statute law, which have since taken place, these two Acts have been simply “brought up to date.” They now stand as c. 93 of the Revised Statutes of Ontario (1887), and c. 144, s. 1, of the Revised Statutes of Canada (1886), respectively.

In the province of Ontario, therefore, the whole question turns upon the effect which should be given to these, our own enactments, and so far as concerns the law relative to property and civil rights, it will be found that, owing to the construction placed upon 32 Geo. III. c. 1, by the courts in Upper Canada, the same method of enquiry has been followed in that province (now Ontario) as in the older provinces of Nova Scotia and New Brunswick.

Although the question is, with every session of our parliaments, becoming less and less of vital importance, still cases do even yet, and not infrequently arise, even in these provinces, in which the rights of suitors depend upon English statutes of considerable antiquity, making provisions as to various matters upon which our parliaments have omitted to exercise their legislative power.

Throughout the law reports of Upper Canada (Ontario), numerous cases will be found in which laws passed by the parliament of England, and in force there in 1792, were without question acted upon by our courts as being the law in Upper Canada. In the very first volume of reported cases, by Taylor, several of such instances appear (f), and so on through the reports to the present time. For instance, no question seems to have ever been raised as to the English Statute of Frauds, the Acts of Elizabeth's time as to fraudulent and voluntary conveyances, and a casual glance at our Digests will reveal many others, as to which no doubt has ever found a reporter. As being in affirmance of the common law, or in amendment of some defect

(f) Taylor, 546.

CAN. Cox.--7

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