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MAN IT B A Il-flE ft SPOITHWOODE LItH LONDON /tcc.srco^o MtJu.A i . ' iwwww«Wiwiwyiwwi M i i ( | i " *j »l " / ^D ISLAND. i f>ro-sT£ o/t^ l-AW OF CAJN^ADA: r\ \ ;orN("iL cases ox riiF. 1 ■ . t • •i. N'Olil'lI-AJIlilMUA Aur, mu (1/ ANf) 'nii. "/-. (av special leave ro appeal. ■■•■^SrAININ', •: \i. HTATi;rES AKFi:rT[X^'> < r \ Qfii'^.'^yj: a&~ i .V >. :#«*■'' .; \ -^ M ^1 r- C A n A. n A .1 C'.: ** 'T ^- Art' ^ '"■« : y inmmiiippBBMa CONFEDERATION LAW OF CANADA PRIVY COUNCIL CASES ON THE BRITISH NORTH-AMERICA ACT, 1867; / AND THE PRAOTIGE ON SPECIAL LEAVE TO APPEAL. THERE BEING ADDED CONTAINING (1) THE IMPERIAL STATUTES AFFECTING CANADA AND THE COLONIES IN GENERAL. (2) THE "JUDICIAL COMMITTEE ACTS": WITH NOTES. (3) THE CANADIAN LIQUOR PROHIBITION CASE, 1895-(5, &c. GERALD JOHN WHEELER, M.A., LL.B., Of Lincoln's Inn, Barrister-at-Law. EYRE AND SPOTTISWOODE, 05(»ucv*mncnt, Sum, n»ti» (JScncx-nl VuliHolicre, LONDON— EAST HAEDING STREET, FLEET STEEET, K.C, KYIIE AND SPOTTISWOODE, lief Majesty's Printers, U.nVNS I'AltK IIOAII, HAfKNKV, N H, ist mmmmm ( V ) PREFACE. I HAVE oiidcavouvodin this hook to prosont a viow of the various stops towards tlio confederation of the provinces of Canada taken hy the Imperial (lovernment, as well as hy the Legislatures of the Dominion and Provinces themselves. It has also heen my ohject to set forth as fully as possihle the decisions of the Judicial Committee of the Privy Council hearing on the confederation policy and constitution generally of the Dominion. Under each section of the British North America Act, 1807, it will ho found that notes arc given of aJl the leading appeals and petitions ; and following the section which is the ruling one in the cases report d, the judjT^raent will be found to he given in full. liie yearning ahroad for confederatio]i e^ihcr of the whole British Empire, or of parts of it — i.e., confedera- tion of Australasia : or of South Africa : or of groups of Islands — appears to grow in intensity daily. The pro- vinces of Canada have led the way, and the Act creating their confederation hasi been interpreted by numerous decisions of the highest Court of Appeal for the Colonial Empire — the Judicial Committee of Her Majesty's Privy Council — until now, after nearly 30 years' examination of the British North America Act, the respective powers of the Dominion as the Supreme Authority on the one hand, and of the Pro- vinces, Supreme in their local districts on the other, have been clearly expounded and settled in many direc- tions. The leading appeal which has gone so far to- wards the settlement of the vexed liquor question and prohibitory legislation generally, decided in the Privy Council in the summer of this year, has, at last, drawn 1^ WJ'np.TFnjr— -;»^j«.!-j'r7i^ ». « JW^TIT-.^ VI PREFACE. a dividing liiK^ hctwcon the respective powers of the Dominion and the Provincial Legislatures. The divid- ing line fixed may not be considered appropriate to other c;;nfederations ; but at least a substantial view of "what has been decided as to the confederation of British North America is now obtainable in a convenient form. Ine Manitoba School cases following Section 93 of the British North America Act, 1867, and the Manitoba Act of 1870; and another decision of the Judicial Committee— The New Brunsv/ick School question, " Maher v. ToAvn of Portland " — which has not been hitherto reported, are dealt with in this volume. The Copyright Acts have been grouped together ; and the American Copyright Act as amended in accordance with the Berne Convention is included. Confederation must be affected more or less by Imperial Acts : these, chiefly as they concern Canada, but also because they affect the British-Colonial World at large, are given in Appendix A. Some repealed Acts are also referred to as evidence of what the previous law was ; and because they are out of print and difficult to obtain. Each Act contains a head-note stating in what way the Act has been repealed or amended by subse- quent legislation. There is a summary of the Merchant Shipping Act, 1891', except where the sections expressly deal with the Colonies : These are printed verbatim ; and distinguished bv side-notes. To each section there is added a reference to the same section m the previous Shipping Act or Acts. By means of this arrangement, as well as by the index, under the words " Statutes cited," any section of the old repealed Acts which has been incorporated into the Act of 1891 can be at once found. The value of tliis will be recognised when it is remembered that the Act of 1891 is a consolidating Act ; its sections being bodily transferred from the old Acts. Cases have decided Avhat a particular section in a mmmmmim mm. PllEKACE. VU ])i'evious Act meant ; and linclini^ the section in the ^Vct of 1891', the case applies. Confederation cannot be said to be complete without the knowledge of the Bight of Appeal to Her Majesty's Privy Council, therefore there will be found to bo set forth, in Appendix B, the "Judicial Committee Acts," with notes of the right of appeal from every colony, and place where the " Foreign Jurisdiction Act, 1890," is in operation. The notes are arranged alphabetically, and the full text of the last-named Act is given. Notes of cases under Section 101 of the British North America Act are given, shewing (1) In what class of case Special Leave to Appeal has been recommended l)y the Judicial Committee : (2) Where Special Leave to Appeal has been refused : and (3) If Leave is granted, what conditions may be imposed by the Committee. The first part of the book was printed before the arguments in the Liquor Prohibition case, 1895-6, were hoard; but on further consideration the publication Avas delayed, in order that the judgment might be included. The case, Avith the arguments summarized from the transcript of the shorthand writer's notes, will be found in Appendix C. This part of the book also contains the case decided in July 1896, dealing with the Powers of Colonial Parliaments to arrest and imprison for Contempt of Parliament. Lastly, in the Index, under the words "Statutes cited," will be found every Act referred to in this volume. My earnest hope is that the work will be found accurate and impressed with that standard of practical utility which the Publishers intended, and which I have endeavoured to carry out. GERALD JOHN WHEELER. 13, Old Square, Lincoln's Inn, 1896. ''"^"■^•""I'-' .■I'.!' '"."!'!• "-''■MH.SJnWfWBIIM!!! ■iijijiijiii mmm ( i^ ) CONTENTS. PAGE Preface --------... y Abbrevititions xi Cases, Table of - xv Table of Sections of British North America Act, 1HG7 - - xxxii Table of Statutes, &e. xxxviii Britisli North America : The Act, 1867, with notes of cases to each Section ; the im- portant cases being given in full - - - 1-553 The Act, 1868 553 1871 553 1875 - - 555 1886 555 1895 555 Manitoba Act of 1870, with the School cases in full — one never before reported 369 Rupert's Land, 1868, Act, extract from .... 553 Behring Sea Award Act - 910 Copyright : — American Copyright Act 875 Borne International Convention Act ----- 868 British Copyright Acts 846 Canada Copyright Acts ------ 855-857 Merchant Shipping Act, 1894 927 Practice of the Privy Council on Special Leave to appeal - 410-482 Quebec Resolutions 746 Appendix A : — Containing the Imperial Acts which have in the past, or do now affect Canada and other Colonies - 556-1004 See List of Acts. Appendix B : — Containing, first, the Acts constituting the Judicial Com- mittee of the Privy Council 1005 Secondly, Notes of the Right of Appeal fiom Every Colony, &c. 1009 Appendix C : — Judgment and Argument in the Licpior Pvohibition Case of 1895-6, and other cases: Including the Pro- vincial House of Assembly's Privileges and Immuni- ties Case - - - 1042 Index 1089 S 2340. '™?ww>>W»?'?w!»?^^^^W!»!»P!flW||W||^^ aj*^jj«*^tAij. .-t ; ' iummi ii niwi iiii w ii i ii nn ii i ii miiM Ni llM lll lui l d l i l i; in i iiMJiiW ( xi ) ABBREVIATIONS IN THE CITATION OP THE VARIOUS COURTS AND LAW REPORTS. A.C. [year], Law Reports Appeal Cases since 1890. App. Cas., Law Reports Appeal Cases up to 1890. Bl. Com., Blackstono's Commentaries. Blue Book (Prov. Leg. Corresp.), Correspondence of Ministers re Legislative Enact- ments of the Provinces of Canada, to be seen at the office of the High Com- missioner for Canada, Victoria Street, S.W. Bri. Col., British Colonies. B.B., British Bechuanaland. B.N.A. Act, British North America Act. Bah. L., Bahamas Law. Bar. Law, Barbados Law. C, Old Province of Canada. C.B.N.S., Common Bench New Series Reports. C. of C.P., Code of Civil Procedure. C, J., Chief Justice. C. Rob., Christopher Robinson's Admiralty Reports. C.S.B.C, Consolidated Statutes of British Columbia. C.S.L.C, Consolidated Statutes of Lower Canada. Can. Dominion of Canada. Can. Gaz,, Canadian Gazette newspaper, London. Can. Year Book, Canadian Statistical Year Book issued by the Department of Agriculture. Cashels' Dig., Cashels' Digest of Canadian Supreme Court Cases. Ch., Charter. CI. Col. Law, Clark's Colonial Law. Col. Off. Lib., Colonial Office Library. Com. Jour., English House of Commons Journals. Con. Sta. Can,, Consolidated Statutes of Canada. Cons. Lim., Constitutional Limitations. Corp., Corporation. Cowp., Cowper's Reports. Cranch, Cranch's United States Supreme Court Reports. Grim. Pro. Act, Criminal Procedure Act. Ct. App., Court of Appeal. Ct. N.B., Court of New Brunswick. Ct. Q.13., Court of Queen's Bench. (D.), Dominion Act. East, East's Reports. Ex D., Law Reports, Exchequer Division. F.O.L., Foreign Office Letter. Gr. (or Grant), Grant's Chancery Reports, Upper Canada. Grant's Ch. R., ibid. b 2 iu«llilllKIIJii*!i>LlJ .^.iiamtnqiipfinininini^^ Xll ABBREV[ATIONS. H.C., High Court. H.L., House of Lords, H.'s T., Hertslet's Commercial Treaties. How. or Howard, Howard's United States Supreme Court Reports. J.O., Judge of Appeal, Ontario. Johns., Johnson's American Reports. Jur. N.8., Jurist New Series. Juris. U. Lords, Jurisdiction of the House of Lords. J., Justice. J.C, Judicial Committee. K.B.L.C, King's Bench, Lower Canada. Knapp, Knapp's Privy Council Reports. L.C. after a surname, Lord Chancellor, L.C., Lower Canada. L.C.C.S., Lower Canada Consolidated Statutes ; C.S.L.C, ditto, L.C. Jur. (or J.), Lower Canada Jurist. L.J. Adm., Law Journal Admiralty Reports. L.T., Law Times Reports. L.J.P.C, Law Journal Privy Council Reports. L.P., Letters Patent. L.R.P.C, Law Reports Privy Council Reports. Ld. Raym., Lord Raymond's Reports. Leg. News or Legal News, Reports of that name. Lon. Gaz., London Gazette. Macq. H.L., Macqueen's Practice of the House of Lords. Magis., Magistrate. Man. L.R., Manitoba Law Reports. Mon. Q.B., Montreal Queen's Bench Law Reports. Mon. Sup., Montreal Superior Court Reports. Moo, P.C, Mooro's Privy Council Reports. Moo. P.C. N.S., ditto New Series. N.S., Nova Scotia. N.S.W., New South Wales. O.A.R., Ontario Appeal Reports. 0. in C, Order in Council. O.P.R., Practice Reports, Ontario. O.R., Ontario Reports. Oflf. Can. Gaz., Official Canada Gazette published in Canada. Ont., Ontario. P., Petition of Appeal presented to Lower Court of intention to Appeal to Her Miyesty's Privy Council. P.C., Privy Council. P. AVill., Peere-Williams's Reports. Plow., Plowdeu's Reports, Prac. R., Practice Reports, Ontario. Prorog., Prerogative. Prov. Log. Corresp., Correspondence of Ministers re Legi.slntive Enactments of tlie provinces of Canada. See " Blue Book." Pugs, and Bur., Pugsley and Burbidge's New Brunswick Reports. Pugs., Pugsloy's New Brunswick Reports. Q.B. Quebec, Court of Queen's Bench, Quebec. Q.B.D., Law Reports, Queen's Bench Division. Q.B. Ontario. Queen's Bench, Ontario, Reports. Q.L.R., Quebec Law Reports, Quo., Quebec. Rs., Rupees. R,0,N,W.T,, Revised Ordinances of the North- West Territories, aB>miWtwfMI M I tf| M^M WWIH^inwmiM WM IIIII i M IIN W >'NII |Wli i H j ABBREVIATIONS. Xlll R.S.C., Revised Statutes of the Dominion of Canada, R.S.O., Revised Statutes of Ontario. R.S.N.S., Revised Statutes of Nova Scotia. R.S.Q., Revised Statutes of Quebec. Rev. L6galo, Revue Legale, Canadian Reports in French, Ridg, L, & Sch, Ir, Rep., Ridgeway, Lapp & Schoales Irish Reports, Russ, & Chesley, Russell and Chesley's Nova Scotia Suoremo Court Reports. Russ. & 0., Russell and Geldert's Nova Scotia Supremo Court Reports, Russ, & Goldert, ditto. S.L.R, Act, Statute Law Revision Act, S,C,R., Supremo Court of Canada Reports. S,C.R,U,S,, United States Supreme Courts Reports, S.C.N.B., Supremo Court, New Brunswick, Reports. S.C,N.S,W„ Supreme Court, New South Wales, S,C.N,S,, Supremo Court, Nova Scotia, S,C, Victoria, Supremo Court, Victoria. St. R,, Statutory Rules and Orders, Sup. C, Superior Court, Times, Times Newspaper Reports. Tupp,, Tupper's Court of Appeal Reports, Ontario ; early volumes of O.A.R, Tupper, Lbid. T,R,, Term Reports or Durnford and East's Reports, U,C., Upper Canada, U,C,C,P., Upper Canada Common Pleas Reports. U.P.CS,, Upper Canada Consolidated Statutes, U,C.Q,B,, Upper Canada Queen's Bench Reports, (U,S,), United States Supreme Court, v., Appealable Value of Question on Appeal to Judicial Committee of Her Majesty's Council, Ves, Sr,, Reports of Vesey senior, " ' Vesey, Vesey's Reports. W, Bl,, Sir William Blackstone's Reports. W, of N,, Wealth of Nations. W.R., Weekly Reports. Wall., Wallace's United States Supreme Court Reports. Wheat., Wheaton's United States Supreme Court Reports. EREATA. p. 6, line 13 (a), for 1028 read )626. P. 68, line 6 (n), for 91 read 92. P, 80, line 26 (6), for 3 read 13, P, 81 , line 32 (a), for Ontario read Quebec. " "I" ' >Ji\mmmmmwf'iiiKmmmf!f!^^ m iiilii lil ir Ml«ll M |M r1 . Hallee ... Atlantic and North-Western Railway Company, Casgrain v. of Jersey, Esnouf v. 420 ■HmMMm xvi CASES CITED. 39/5 111, 327 Att.-Gcn. ')f Manitoba, Itrophy c. ... ... ... ... 371, „ of Niiw Houtli Wales, JFiicleoil )'. „ of Nova Scotia I'. Gregory ... ,, of Ontario, Att.-( ion. of Canada ('. „ „ I'. Att.-Gun. of Canada (AKsigiiincnts Caso) 41, 78, 1G,5, ICG, 302, „ „ V. Att.-Oen. of Canada and tho BruwurH and Uistillors Association (Liquor Case) ...53, 407, Sll, 1042, c. Mercer ... 47, 98, 295, 483, 499, 610, ■') 13 „ of Quebec V. Att.-Gon. Dominion (Church v. Bhike) 484, 499, 500, „ ,, Colonial Uuilding and Investment Co. «'. ... 46,234 „ „ ?;. Gray... „ „ V. Murray „ „ V. Queen's Ins. Co. 55, 08, 120 (2nd part), 127 (1st „ „ V. Reed ... 32 (3rd part), 117, 119 {1st part), 320 (^"d „ of Victoria, Woolloy t). Australian Steam Navigation w. Smith Ava, the, y. " ]?reiihilda" British India Navigation Co. ... ... 431 Aylmer, Lord, Harvey r. Aylwiu, Cuvillier r. ... ... ... ... ... 397, 376 417 ,476 , 401 1067 1004 , 530 , 533 , 258 545 482 part) part) 525 457 ,482 10 406 Baboo, Gopal Lall Thakoor v. Teluk Chunder Ilai „ Mootochund, Moofti Mohummud UbdooUah r. ,, of Montreal ('. Sweeny Baltimore, L'>i'd, Pcnn v. ... Bank of New South Wales v. Owsten ... ,, of Ontario, /m re ,, of Toronto t'. Lambe ... ... ... 54,68 „ Union, v. Tonnant. See Union. ,, ,, of Canada V. Ogara BanC[Ue du Peuplo, Exchange Bank of Canada ... „ D'Hochelaga v. Murray Barker !'■ City of Fredericton Barrabool.tho Barrett, City of Winnipeg c. Barton v- Taylor ... Bayley, Oanong «. ... Beatty, North-West Transportation Company v, Beaudet, North Shore Railway Company c. Becket, Grand Trunk Railway Company Beckfort y. Wade Beebee Doss, Mohun Lall Sookul V. ... Belanger t. Caron... Belford, Smiles Belisle, L'Union St. .Jacques do Montrejil v. 43, 45, 67, 69, 76, 84, Bell 'I'el«plione Co., /)i re Belleau, Reg. f . ... Bennett i*- Pharmaceutical Association... Keg. V Bergeron ('• Lassaiio Berkley, Wilson i). ... Bertrand »■ Att.-Gon. Now South Wales Bickford und Erie and Huron Railway Company i>. Corp. Bigge, Hill V. ... 424 ... 424 ... 458 ... 1006 ... 424 ... 91 > 75, 113, 129, 200, 1050 ... 467 477 ... 459 ... 329 ... 457 ... 333, 371, 440 1079, 1082 ... 391 ... 458 ... 478 444, 475 ... 1006 ... 430 22 91, 368 127, 147, 264,329, 1048 ... 89 ... 526 ... 200 324, 390 ... 203 33 ... 33,418,539 of Chatham ... 479 10 3yui.-."r.';.i,ii(3)OiB«IWi MWMMHn CASES CITEU. XVU I'AIIB " BirkBgate," the 1.17 Birmingham L'liiml (.'i)mjiiiiiy, Wiirwiok Ciiiiiil Coin j'liny c. ... ... 00 Bishop •j'^i^t'i'l !'• JJ'sliup uf '-'"p'jtowii ... ... ... ... "41 Black, -Vtt.-(icii. c. ... ... ... ... ... ... ... liHi J)ow f. ... ... ... 67 (^ii'l i«irt), ric, 22r), 229 (iHt pint) Blackbird Criik Miirsli Conipiiiiy, Willfioii c. ... ... ... ... 200 Blackwood, Miiyor of EHsendoii ('. ... ... o25 Blake, C'iuu-ch v. (Att.-Uen. Quuboe o. Atl.-Ciuii. uf (Jiirmda) 181, 19!), 600, ^'i „ Loughliorough ('. ... ... ... ... ... ... 118 Blanchet, Oimy ('. ... ... ... ... ... ... ... 22 Blouin ''• t.'"i'p- "1" Quu^c ••• ••• ••• •■• •• 120, 1 I'll Boale I'- i>iL'k.'ii)n ... ... ... ... ... ... ... 4i51 Board of TLHipornlitics, Dobio v. ... ... 49, 124, 232, 272, 328, 538 „ (if Wiii'duiis, Cooley t'. .,, ... ... ... ... 200 Bose Ram Sabuk, Monmuhiiii UoasBO V. ... ... ... ... 430 Boston ''• Lclit-vre ... ... ... ... ... ... ... 425 BoSWell ''• Kilborn... ... ... ... ... ... ... 433 Boucher,/"™ ... ... ... .. ... ... ... 104 Boulton iiiid Algoma Trading Company V. Shoa ... ... ... 481 Bourgoin c La Cumpaguia du Choniin di^ I'ordc Moiitruiil 111, 232, 320,541 Brenhilda v. British India Navigation Company (llio " Ava ") ... 431, 482 British Columbia Towing Company and MoodyviUu Sawmills Company, Sewell I'. ... ... ... ... ... 322, 451 „ India Steam Navigation Company v. Owners of " Uronliilda " 431, 482 Brome, County of, Cooey v. ... ... ... ... ... lUl, 541, 1047 Brophy ''. Att.-Qcn. of Manitoba ... ... ... ... 333,376 BrOUghtOn, Sinclair J'. ... ... .. ... ... ... 418 Brown v- McLaughan ... ... ... ... ... ... 424 ,, Mayor of Montreal v.... ... ... ... ... ... 431 t'. State of Maryland... ... ... ... 58,157,107,216 Bruneau I'. Massue... ... ... .. .. ... ... 22 Bulkeley c Scutz ... ... ... ... ... ... ... 431 Bull f. Wing Chong ... ... ... ... ... 63,122 Burah, Reg. f. ... ... ... ... 22,40,131,248,390,741 Burdett f. Abbot ... ... ... ... ... ... 12,1070 Bury, Forsyth (' ... 307,478 Calder V. Halkot ... ... ... ... ... ... ... 1083 Caldwell y. McLaren ... ... ... ... ... ... 450 California, State of, Almy c. ... .. ... ... ... 58 Callender, Wilson V. .. ... ... ... ... ... 430 Camhernon V. Egroignard ... ... ... ... ... ... 431 Cambridge, /»« ... ... ... ... -. ... ... 396 Camden t'. Home ... ... ... ... ... ... ... 89 Camilleri I'. Fieri ... ... ... ... ... ... ... 435 Campbell ''• Commercial Banking Co.... ... ... ... ... 456 Canada Atlantic liaihvay Company ti. Corp. of Ottawa ... ... ... 403 ,, Att.-Geii. of, V. Att.-Gen. of Ontario (Assignments Ca.se) 44, 78, 165, 166, 197, 302, 1007 ,, „ ,, „ ,, Local Option Case. See Att.-Gen. v. „ Central Railway t). Murray ... ... ... ... ... 448 ,, North-Wcstern Land Cemipany, Lynch )'. ... ... 76,121 „ Shipping Company, Wilson v. See L;ike St. Clair ... ... 71 Canadian Bank of Commerce V. Lambe .. ... ... ... 113 ,, Pacific Railway, Robinson ... ... ... ... ... 453 „ Pacific Railway, Vancouver, City of, i'. ... ... ... 306 ■■ 3. « (iii »* . ' a « XVIU CASiiS CITED. Canepa >'. IjiHus ... ... ... ,,. ... ... ... 425 Cape Town, nisliop of, Long y. ... ... ... ... ... 7-ii Caron, Hulimgor v. ... ... ... ... ... ... ... 22 Carson, f'lai'k r. ... ... ... ... ... ... .. 403 Kiollcy V. ... ... ... ... ... ... 12, 1083 Carter ". MoIboii ... ... ... ... ... ... 280,202,428 Casgrain '•• Atlantif mh\ North-Wustoi'ii Rjiilwiiy Compftny ... ... 407 Central Vi'i'tnonl Kuilwiiy C'onipiviiy, St. John Corp. II. ,,, ... 420,401 ,, Riiilwiiy of Quobep, Corp of Quebec )'. ... ... ... ... 462 ChabOt ''■ lif Morpeth ... ... ... ... ... ... 89 Chalexirs liiiy CiiHo... ... ... ... ... ... ... 74 Chandler, Hefi. '■. .. ... ... ... ... ... 220,230 Charlton's Case ... ... ... ... ... ... ... 4i4 Chatham Compuny, Uickford and Erie and Ilui-on liiilway Conipany c, ... 479 Chaudiere Qold Mining Company v. Dcslarats .. ... 45, 40, 234, 242, 243 Chevrier '. R<'g. ... ... ... ... ... ... ... 473 Chinese Ininiigrant Cane ... ... ... ... ... 03,122 ChirP.C '■• Chirac ... ... ... ... ... ... ... 101 Chowdry ''. Muliick ... ... ... ... ... ... loio Chowdry Roy Prannath !'. Rnnco Surnoraoyee ... ... ... 424 Christian u. Corren ... ... ... ... ... ... 409 Chu Lay, or Wing Ciiong, Bull, II. ... ... ... ... 03,122 Chun Teong Toy '• MuKgrovo ... ... ... ... ... 328 Church I', lilivke (Att.-Gon. Quobce v. Att.-Gon. of Canada) 484, 499, 500, 533 Churchillii.Crca.se.,. ... ... ... ... ... ... 58 Chutraput Singh Doorga «'■ Uwarknnath Ghoso ... ... ... 430 Citizen Insuranco Conipany v. Par.fons... 2, 40, 47, 50, 51, 05, 08, 70, 90, 121, 131, 134, 140, 149, 172, 174, 182, 200, 237, 239, 241, 242, 248, 249, 258, 277, 307, 325, 459, 1046, 1053, 1059, 1002, 1006, 1007, 1008 City of Frcdericton c. Reg. ... ... ... 00, 02, 125, 129, 171, 190 ,, of Montreal, Lcnioino y.... ... ... ... ... ... 482 „ „ Lcs EcclesiiLstiqucs do St. Sulpice ... ... ... 442 II „ Longueil Navigation Company ... ,.. ... 60 ,. i> Pigeon I ... ... ... ... 161 „ „ Pillow ... ... ... ... ... ... 200 „ of Ottawa, Leprohon f. ... ... ... ... ... 70,319,641 „ of Vancouver V. Canadian Pacific Railway ... ... ... ... 300 „ of Winnipeg II. Barrett ... ... ... ... ...333,371,440 t'. Logan ... ... ... ... ... 333, 371, '140 Clark V. Carson .. ... ... ... ... ... ... 403 „ V. Molyneux ... ... ... ... ,., ... ... 457 Clarke, Schoolbred t;. ... ... ... ... ... 88,321 „ «. Union Fire Insuranco Company ... ,., ,,. ... 246 Clarkson I'- Ryan ... ... ... ... ... ... ... 460 Clement, King v. ... ... ... .. ... ... .. 414 College of Physicians, Reg. c. ... ... ... ... 70,420 Colonial Building and Investment Company v. Att.-Gen. of Quebec... 40, 234, 258 Commercial Bank of South Australia, /?» re ... ... .,, ... §7 ,, Banking Company, Campbell v, ... ... ... ... 45(5 „ „ „ Windsor, Town of Windsor y. ... ... 75 Connecticut mid Montreal Life Assurance Company, Moore r. ... ... 453 Cooey t'. County Bromo ... ... ... ... ...161,541,1047 Cook, Rex V. ... ... ... ... ... .. ... 33 Cooley y. Board of Wardeu.s ... ... ... ... ... ___ ^00 Cooper I'- Cooper ... ... .. ... ... ... .. 425 COOte, Keg. f 420 CASKS ciTi;u. XIX Corren, f'liriHtinn (». Corsellis, /« re CoBsette V- L)uu Cot6 V- Morgan Cotmty tli'iincil, Londuii, Kog. V, Cowan '•• Wright ... Ciease, Churchill i\ Credit V'iill<'y y. tiri-nt Western Riiilway Company Cro'xibie <•■• JackKun... CrobS I'- I'o ^'fiiio ... Curry f. t'urry Cushing "■ Uupuy „ Owens V. ... Curvillier "• Aylwin „ Symes v. ... I'AIlK ... 400 87 ... 424 ... 00 ... 1083 •i'"',541 58 ... 233 ... ... 321 ... 510 472 7H, 80, 00, 140, 264, 301, 307, 308, 32li, 1004 22,319 307,406 243,257 DakhO MUBSUmut, Shoo Singh Rai y. Danaher c. Petors ... Dansereau, -Ka- /)ar<(i Darling's Case Davidson, Queddy Rivor Driving Boom Reg. V. ... Dawkins v. Lord Rokoby Deeming, /» re ... Delmege, Jonoure I'. Desbarats, Chaudii^re Gold Mining Company v. ... 45, 46, D'Hoohelaga, La Banqiio, Goldring V. „ „ V. Murray ... De Souza, /» »•« •■■ De Valle, Cross «. ... Devlin, Ryan i;. ... Dickson, Boalo V. ... Diggs f. Wolcott ... Dill I'. Murphy Dillets, /» »•« Direct United States Cable Company v. Anglo-American Telegraph Dobie I'- Temporalities Board... Donegani f • Donegani D'Orliac «• D'Orliac Doss, Beebeo, Mohun Lall Sookul ,, Hullodhur, Sibnarian Ghose v. ... Dossee, Monmohini, Bam Sabuk Bose v Doutrfi, Reg. w. ... Dow V- Black, Judgment of P.C. 67 ■• Dowuie and Arrindell, In re, Appeal .,, Doyle v. Duiferin ... „ I). Falconer ... DuflFerifl, Doyle t?. ... Dnmaresque, Magoons v. ... Dumonlin «• Langtrey Dun, Cossctte V. Dupuy, Gushing v. Dutton ''• Howell ... Dwarkanath Ghose, Chutraput Singh Doorga v. Dyke y. Walford ... 49, 124, 232, (2nd part), 126, 225, i'8, 80, 90, 149, 204, 301, 307, ... 462 66, 162 30, 1086 ... 28 ... 60 ... 33 ... 1083 ... 416 437 556 234, 2\i, 243 ... 428 ... 450 414, 420 ... 510 22, 317 ... 451 ... 310 ... 12 ... 416 ... 74 272, 328, 538 ... 561 ... 434 ... 430 427, 430 ... 430 ... 396 229 (iHt part) ... 414 ... 126 12, 1083 ... 126 ... 1006 ... 472 ... 424 308, 328, 1064 ... 10 ... 436 ... 509 ^kita^^M XX CASES CITED. East Inilia Company v. Syed AUy Eccle&iastiqneS do Sulpieu, City of Montreal c. Edulgee Byramjee, Kig. v. Eg^roigUard, Cambernon v. ... Election Case (Niagara) „ „ Quebec Eliza Keith, The Ely c. Peck EsnOUfi'- Attorney-General of Jersey ... Esquimalt and Nanaimo Railway Co., Hoggan v. Essendon, Mayor i: Blackwood European and North American Railway r. Thomas, Examined Evans v. Iludon ,, Laramcc v, ... Exchange Bank of Canada c. Banque du Peuple t'. Reg. ... Export I'U'iiIk'I' Co. of New York's Case Eyre, Phillips v. Eyre's (Governor) Case Fabius, The ... ... Fabrigas, Mostyn ... Falconer, Uoyio v.... Falkland Islands Co. w. Reg. Farwell, Reg. v. ... Fenno, Veazie Bank i'. Fenton y. Hampton Fielding, Thomas i' Fish, Stevens J'. Fishmongers' Co., Lyons I'.... Fieri, Camilleri v. ... Fletcher ''■ Stiite of Rhode Island Flint, Attorney-General of Canada y. ... Forget ''• Ostigny ... Forsjrth i. Bury ... Frawley, Reg- «• ••■ Fredericton, City of, Barker i'. „ tJ. Reg. ... ... ... 60, 62, 126, Fuller, Rail'way Co. ('. Gagnon, Prince ... Ganong t'. Bayley .. Gardner v. Parr Garrett, Meriwether v. Gauthier, Sauvageau V. Gemmill, Sailand t'. General Council of Medical Education, Leeson v. Ghose Dwarkanath, Chutraput Singh Doorga V. GhOSe, Silinarian, i', HuUodhur Doss ... Gibbon !'• Ogdcn ... Giesler, Goodwin v. Gillespie, Merchant's Bank, Halifax, v. Gilnian ''. City of Philadelphia Glass, Speaker of the Victorian Legislature i'. ... Godbout, Grand Trunk Railway Co. f. Goldie, Smith f. ... Goldring ». La Banque D'Hocholaga ... TAIK ... 1009 442 ... 109 ... 431 22,319 22 71 ... 319 ... 120 ... 4GG ... 525 220,231 70,511 257 177 ... 31, 288, 293 ... 216 ... 248,345, 1083 ... 28 ... 1006 ... 10 12, 1083 415,419 ... 519 ... 121 12 1079 ... 253 498 ... 435 ... 101 ... 68, 323, 741 ... 428 307, 478 ... 126, 154, 325 ... 329 129, 171, 196, 200 ,.. 200 ... 441 ... 391 ... 224 77 421, 431 ... 94 ... 1083 ... 436 427, 430 157,219 ... 470 87, 741 ... 200 ... 12 ... 434 ...88, 90, 01, 474 ... 428 ■MWHPfMiPP CASES CITED. XXI I'AfiK Goodhue, /^■ ... ... ... ... ... .. 232,218,541 Goodwin V- Oieslor... ... ... ... ... ... ... 470 Gordon c. Lowther ... ... ... ... ... ... ... 1006 GoSSet y. Howard ... .. ... ... ... ... ...1082 Governor -Oeneral V. Four Provinces, Acts of 1883-4 C4, 123, 144, 1050, 1051, 1053 Grand Trunk Railway v. Beckett ... ... ... ... 444,475 „ „ ^. Godboat ... ... ... ... ... 434 „ „ y. County of Halten ... ... ... ... 480 „ „ V.Jennings ... ... ... ... ... 445 McMillan «. ... ... ... .. ... 479 Gray, Attorney General of Quebec v. ... ... ... ... ... 545 Groat l^orthern Railway Co., North London Railway Co. ('. ... ... 90 „ Western Iteilway Co., Credit Valley Railway Co. ('. ... ... 233 ,, „ Insurance Co., Jordan v. ... ... ... ... 458 Green, Holman !'. ... ... ... ... ... ... 73,498 Gregory, Attorney-General of Nova Scotia i'. ... .. ... 395,470 Griffith, Pope i' 322 V. Rioux ... ... ... ... ... ... 161,641 „ Stace V. .. ... ... ... ... ... ... 436 Guay V. Blanchet ... ... ... ... .. ... ... 22 Halket, Calder ('.... Halley, Case of Halliday, Reg. f. ... „ United States i'. ... Hapten, County of, Grand Trunk Railway v. Hampshire, State of New, Pierce v. ... Hampton, F^i ton o. Hanson, Allen y. ... Hart, Joyces. „ I'. Corp. of Missisquoi ... „ Reg. ». „ Sun Fire Office v. Harvey y. Lord Aylmer Hennessy, Tope, Case of ... Herbert i'. Purchas Hill^Biggo Hochelaga, Corp. of, Smart i: Hodge V. Reg. ... 1083 ... 410 ... 158 ... 62 ... 480 ... 101 12 87,88 ... 434 ... 541 ... 105 ... 424 10 28 12, 47^ 10 ... 201 50, 62, 63, 109, 124, 135, 147, 150, 153, 154, 161, 166, 191, 200, 248, 294, 324, 327, 329, 741, 1054, 10.56, 1058, 1063, 1069 Hoggan !'• Esqtiimnlt and ^^ naimo Railway Company ... ... ... 466 Holman '•• Green 73,498 Home, Camden I'. ... ... ... ... ... ... ... 89 Hoseinee Begam, Mussumat, Mussumat .lariutool Hutooi c. ... ... 437 Hoskin or Ross c. Hurteau ... ... ... ... ... ... .180 Houston '•• Moore ... .. ... ... ... ... ... 319 Howard, Gossett).... ... ... ... ... ... ... 1082 Howell, Uutton u. ... ... ... ... ... ... ... 10 Hudon, Lvaus I'. ... ... •■■ ... ... ... 70,541 Hudson, United States of Americii y. ... ... ... ... ... 319 HuUodhur Doss, Sibnarian Ghose I'. ... ... ... ... 427,430 Hunter t'. Martin ... ... .■• •■. ... ... .. 319 Huntingdon, Corporation of r. Moir ... ... ... ... 103,203,204 HurteaU, Hoskin or Ross I'.... ... ... .. ... ,.. 48O Huson I'. Township of South Norwich... ... ... ... 104,195 mm. imm ■iitaiMMMIMUa X.vll CASES CITED, Indar KnilwaT, Mahnrani V. Jaipal Kunwar, Mnlia, ani Ingram, Read f. ... Jackson, Crombie v. Jaipal KuMVar, Maharani, Maharani Indar Kunwar v. Japanese Government v. P. & 0. Steam Navigation Co. ... Jardine ". Lyaii ... Jariutool Butool, Mussumat V. Mussumat Hoseineo liegura Jennings, Grand Trunk Railway Company v. ... Jenonre v. Delmege Jersey, Att.-Gon. of, Esnouf n. Johnston v. Minister of St. Andre-ws ... „ V. Poyntz Jones, Wetherell u. Jordan, Great Western Insurance Company v. ... Joyce f. Hart Joykissen Mookerjee, Reg. r. Justices of Antigua, /« re ... „ of King's, Reg. I'. ... „ of Sierra Leone, 1'. Rainy „ „ Ramsay f. ... I, „ Smith r. l-AflK ... 437 57 ... 321 ... 437 ... 1031 ... 431 437 ... 445 437, 45G ... 420 19,405 ... 102 ... 50 ... 458 ... 434 ... 419 ... 420 58, IGl, 172, 10.53 ... 412 412, 483 ... 414 I ! Keefe I'. McLennan... Keith, Eliza, The Kelly "■ Sulivan Kennedy i^'. Purcell Kerry Kolitany, Moniram Kolita V Kielley v. Carson ... KierzkOWSki v. Grand Junction Railway Company Kilborn, Boswell I'. King t'. Clement Kisto Nauth Roy, ^« »•« ... Ko-Khine v- Snadden Kops V- Reg. Kunwar, Maharani Indar v. Maharani Jaipal Kunwar 186, 1047 ... 71 ... 396 314, 394 ... 428 12, 1083 234, 246 ... 433 ... 414 ... 472 ... 424 ... 416 ... 437 La -Banque D'Hoclielaga, Goldring I'. ... Lake St. Clair, The, v. A. Ct., Quebec Lamb "• Bowser Lambe, Bank of Toronto I'. ... ,, Canadian Bank of Commerce «. „ Merchants' Bank of Canada v. „ Molson V. ... Lambkin i'- South Eivstem Railway Company . . . Lamoureux f . Molleur 428 71 249 Landry, Thebergo V. Lane County v. Oregon LangloiS, Valin y. ... Lang^ry, Dumoulin v. Laramee v. Evans ... LariOS, Canepa v. ... LaSSalle, Bergeron v. Laurent, Lupine V. Lawless t^. Sullivan 54, 68, 75, 113, 129, 200, 1050 ... 113 ... 113 ... 66, 159, 160 ... 423 ... 474 ... 22, 39, 40, 45, 83, 109, 308, 316, 394, 440 77 11. 18, 48, 08, 90, 91, 312, 316, 318, 394, 441, 538 ... ... 472 267 ... 426 ... 203 163, 1047 76 liiM linwm—wiwi ' ' CASES CITED. XXlll Leacock, McLaren or Shields Lechmere, Charlton's Case .. Leclaire, Mncfarlano t>. Leeson ". General Council of Medical Education Lefrancois, Hussell I'. Lelievre, Boston V. Lemoine y. City of Montreal Lenoir w- Hitchie ... Leprobon I'. Corporation of Ottawa ... Les Ecclesiastiques de St. Sulpice, City of Montreal v. Letellier's Case ... Levien f . Keg. Levinger v. Reg. ... Lewin "• Wilson ... License Cases, U.S. Lin Sing I'- Washburn Lindo ". Rodney ... LiquOV Case, Nova Scotia 64. License Act, 1883-4 ... „ Prohibition Case LiviUS *'• Wontworth Local Government Board, Reg. v. „ Option Act Case Logan, City of Winnipeg u. ... London County Council, Reg. v. Long "• Bishop of Cape Town Longueil Navigation Co. v. City of Montreal Loughborough f. Blake ... Low, Routledgo c. ... Lowther V- Gordon „ «. Earl of Radnor .. . L'XJnion St. Jacques do Montreal i'. Belislo 43, 45, 67, 69, 76, 84, 127, 147, 264, 329, 1048 Lupine «• Laurent ,.. ... ... ... ... 103,1047 LutchmeedavamahNaragunty f. VongamaNaidoo ... .. ... 438 Lyall f. Jardine ... ... ... ... ... ... ... 431 Lynch y. Canada N.W. Land Company ... ... ... 76,121 Lyons '■■ Fishmongers' Company ... ... ... ... ... 498 PAflE ... 463 .. 414 420, 432 1083 ... 474 ... 425 ... 482 7, 11,26, 27, 35, 643 ... 70,319,641 442 ... 28 417 107,418 ... 452 ... 214 ... 63 1006 ... 120 123,144, 162, 1050, 1051, 1055 64, 123, 144, 1042, 1064 1000 ... 90 10, 27, 111, 201, 205, 327,401 333, 371, 440 ... 1083 741 ... 06 118 92 ... 1006 ... 1082 Macdonald, Abbotts v. MacDonnell's P. E. Macfarlane t>. Leclaire UacLaren, Caldwel 1 „ or Shields ti. Leacock Maclaughan, Brown ii. Maclennan, Keefe... Macqueen f. Reg. •■• mL&crea,, i^- parte ... ScClanagan "• St. Ann's United Building Society McCulloch !'• State of Maryland McDermott, /» re McDougall, Reg. V. ,, V. McOreevy ... McFee, Mowat I'. ... UcQreevy, McDougall v. ... McGuire, Wilson V. ... 426 ... 121 420, 432 ... 450 ... 463 ... 424 186, 1047 ... 477 ... 417 ... 243 ... 325 ■ ■■ 413 ... 159 ... 447 ... 74 ... 447 ... 391 ■MM XXIV CASES CITED. McEenzie, North West Transportation Co. i: ... Whitui'. McLe&n v. Stewart... SEcLeod «• New Brunswick Railway Company ... „ V, Attorney-General of New South Wales McManamy f- Sherbrooke ... McMillan v. The Grand Trunk Eailway Company McMuUen "■ Wadsworth McNeil, A'l- ?j«W(; ... Madison, Marbury v. MagOOnS ''• Dumaresqup Magura f . Magura Maharani Indar Eunwar '•. Maharani .laipal Kunwar Maher ''• Town of Portland ... Main *•• Stark Maitland, Tanony Churn J5onnerjee v. Manitol)a, Attorney-General, Brophy v. Mann, Aitoheson ... Manning, Nasmith t). Marbury «. Madison Marchand, Ouimct I'. Maritime Bank of Canada v. Now Brunswick Receiver- Marois, /« »'c> Examined, Followed Martin w- Hunter ... Maryland, State of, Brown ri. „ „ McCullagh V. MaSSachUBetts Bay v. The King „ Thurlow V. Massue, Bruneau ... Matheson Bros., /?8 re MatheWB «<■ Warner Medical PJduoation, General Council of, Leeson t>. Mercer, Attorney-General of Ontario v. 47, 98, 295 Merchants' I^ank of Canada v. Lambe „ „ Moffatt V. ... „ „ V. Smith ... „ „ Halifax v. Gillespie Meriwether, Garrett v. Middlesex, shcriflf of Minister of St. Andrews t'. Johnston ... Missisquoi, Corp. of Hart, i>. Mofifatt I'. Merchants' Bank ... Mohr, Reg. y. ••• Mohun Lall SoOkul f. Beebee Doss ... Moir, Corp. of Huntingdon i'. MoUeur v. Lamouroux Molson y- Lambe ... „ V. Carter ... MolyneUX, Clark v. Monckton, /» '•« ••• Monir am Kolita «• Kerry Kolitary Monk V. Ouimet ... Monmohini DOBSee, Ram Sabuk Bose I'. Montaignac ' ■ i^iiitt'i Montreal, city of, Lemoine v. „ V. Les Kcclesiafitique.s de St. Sulpice PAOB ... 182 22 467 ... 473 417 ... 139 A. ... 479 257 ... 200 ... 390 ... 1006 ... 447 ... 437 ... 332, 334, 338 ... 428 ... 438 333, 376 ... 91 ... 450 ... 390 ... 284 General 1,7,27,31,32, 109, 292, 480 83, 328 ... 319 58,157,197,215 ... 325 .,. 1006 ...V]101 22 87 ... 412,414,469 ... 1083 , 483, 499, 510, 513, 536 ... 113 ... 475 65, 75, 299 87, 741 77 1079, 1082 19, 405 ... 541 ... 475 ... 249 ... 430 ... 103,203,204 474 ... 60, 159, 100 ... 286,292,428 ... 457 ... 390 ... 428 284 ... 430 ... 438 ... 482 448 CASES CITED. XXV PAOR Montreal, (-'ity of, Longueil Na\rigation Company I'. ... ... ... OG „ Pigeon V. ... ... ... ... ... 161 „ „ Pillow V. ... ... ... ... ... 200 „ Mayor of, Springle V. Brown ... ... ... ... 431 „ Ottawa and Occidental Railway Company, Bourgoin v. Ill, 232, 329, 541 ,, ratisenger I{.ailway y. Parktr ... ... ... ... 475 Moody ville Sawmill Company v. Sewell ... ... ... 322, 461 Moofti Mohummnd ITbdoollah v. Baboo Mootechund... ... ,.424 Mookerjee Joykissen, Rtg. ('• ... ... ... ... ... 4i9 Mooljee MadOWdaSS, Nathoobhoy Eamdass r>. ... ... ... 1010 Moore ''• Connecticut and Montreal Lift' Assurance Company ... ... 453 ,, Houston ('. ... ... ... ... ... ... ... 319 Mootechund Baboo, I'- Moofti Mohummnd UbdooUah ... ... ... 424 Morgan, Coto f. ... ... ... ... ... ... ... go Morpeth, Chabot !'. ... ... ... ... ... ... so MOStyn ('. Vabrigius ... ... ... ... ... ... lo Monsseau, Reed 1'. ... ... ... ... ... ... 536 Mowat ('• McFce ... ... ... ... ... ... ... 74 Mullick, Chowdry i'. ... ... ... ... ... ...1010 Murphy, Dill y ... ... 12 Keg. V. ... ... ... ... ... .„ ... 418 Murray, Attorney-General of Queliec i». ... ... ... ... 482 „ Canada Central Railway Company ti. ... ... ... ... 448 „ le Banque D'Hochelaga ('. ... ... ... ... ... 459 Musgrave v. Puiido ... .. ... ... ... ... lo Musgrove, Chun Teong Toy V. ... ... ... ... ... .328 Mussumnt DakhO, Sheo Singh Rai I'. ... ... ... ... 462 MuSSUmat JoriutOOl Butool ''• Mussumat Hoseinee Begum ... ... 437 Naragunty Lutchmeedavamah ". Vengama Naidoo ... ... ... 438 Nasmith *'• Manning ... ... ... ... ... ... 450 Natal, Bishop of, I'. Capetown ... ... ... ... ... 741 Nathoobhoy Ramdass !'■ Mooljce Madowda.ss ... ... ... loio Neo, Ong Cheng, V. Yeap Cheah Nco ... - ... ... ... ... 425 New Brunswick Railway Company, McLeod «. ... ... ... ... 473 „ Receiver-General, Maritime Bank V. 1,7,27,31,32,109,292 Hampshire, StJite of, New York I'. ... ... ... ... 1006 „ „ Peirce y. ... ... ... ... ... 101 South Wales «. Bertrand ... ... ... ... 33,418,639 „ „ McLeod t'. ... ... ... ... ... ... 417 York ti. New Hampshire Stjite ... ... ... ... ... 1006 Newman, Attorney-General of Canada i'. ... ... ... ... 33 Niagara Election Case ... ... ... ... ... 22,319 Falls Park y. Howard ... ... ... ... ... 624 North London Railway Company v. Great Northern Railway Company ... 90 „ Shore Railway Company, Bea, 'etc. ... ... ... ... 478 V. Pion ... ... ... 461, 498 ,, West Transportation Company y. ]{eatty ... ... ... ... 458 „ „ „ V. Mackenzie .. ... ... 482 Norwich, South, Township of, Huson I'. ... ... ... 164,195 Nova Scotia, Att.-Gen„ Gregory V. ... ... ... ... 395,476 „ „ Bank, Reg. v. ... ... ... ... ... 31, 293 „ ,, Liquor Act, /m j'f ... ... ... ... ... 126 Obermuller, Retemeyer ti. ... ... ... ... ... ... 411 Ogden, Gibbon ti. ... ... ... ... ... ... 167,219 S 2340. C Il<1ll*l IMMMM xxn CASES CITED. Ongf Cheng Neo *'• Yeap Cheah Noo ... Ontario, Att.-Gen., v. Att.-Gcn. Canada, ffce Canada. „ „ Mercer v. See Mercer. ,, Province v. Province of Quebec ca.se.s Option, Loral, Case ... 10, 27, 111, 201, 205, 327, 401, Oregon Ciiniiiiiny, Lane County ti. Orillia, Corp. of, Slavin v. ... Orphan Hoard ;•. Van Rcenen O'Gara, Union Bank of Canada u. O'Regan I'. Peters ... O'Rourke, Reg. ?■. ... Ostigny, Forget ... Ottawa and St. Lawrence Railway, Lett v. „ Corp. of, Canada Atlantic Railway Company V. ... „ „ Leprohon v, Ouimet «'• Marcliand ,, Monk V. ... Owens ''• Cushing ... Owsten, 15ank of, New ,' par/f ... ... ... ... ... 410 Parkdale, Corp. of, ('. West ... ... ... .. ... ... 469 Parker, Montreal Passenger Railway Company v. ... ... ... 475 Parkinson, Royiil Aquarium y. ... ... ... ... ... 1083 Parr, Gardner v. ... ... ... ... ... ... ... 224 Parsons, Citizens Insurance Company v. ... 2, 46, 47, 50, 54, 65, 68, 76,90, 121, 131, 134, 140, 149, 172, 174, 182, 200, 237, 241, 242, 248, 249, 258, 277, 326, 459, 1045, 1053, 1059, 1062, 1065, 1067, 1008 „ Queen's Insurance Company f. ... ... ...116,270,278 Peak, Shields I'. ... ... ... ... ... ... ... 88 Peck, Ely I'. ... ... ... ... ... ... ... 319 Peirce "• State of New Hampshire ... ... ... ... ,,. lOl Penn '•• Lord Baltimore ... ..'. ... ... ... ... 1006 Pennsylvania, state of, i-. Wheeling and Bridge Company ... ... 66 Peters, Danaher v. ... ... ... ... ... 66, 162 O'Regan v. ... ... . . ... ... ... 162 Peuple, I5anque du, ExcliRnge Bank of Canada D. ... ... ., 477 Pharmaceutical Association, Bennett I'. ... ... ... ... 200 Philadelphia, City of, Oilman I'. ... ... ... ... ... 200 Phillips '•• Eyre ... ... ... ... ... ... 248, 345, 1083 Philpott !'• St. George's Hospital ... ... ... ... ... 349 Picton, The ... ... ... ... ... ... ... 49 Pigeon !'• City of Montreal ... ... ... ... ... ... 101 Pillow, A'r pnc('p, ana the City of Montreal ... ... ... 60,104,200 Pion, North Shore Railway Company ti. ... ... ... 461,498 Pollard, In re Pope Hennessy's Case „ I'. Griffith Portland, Town of, Maher v. Foulin, Corporation of Quebec Powell V. Apollo Candle Company Foyntz, Johnston r. Prannath Roy Chowdroy '■• Ranm Ftatt, Allan f. ... burnonioyce ... 414 ... 28 ... 322 333, 334, 338 90, 125, 161 .. 741 ... 102 ... 424 .■■ 439 ■■»h»»«lW CASES CITED. XXVll PAOK Prince *'■ Gngnon ... ... ... ... ... ... ... 441 Prittie, R«g- " 104, loi Provinces, I'^our, Dominion v. [Acts of 1883-4] 64, 123, 144, 162, 1060, 1051, 10.56 PulidO, ^lus'gravo t'. ... ... ... ... ... ... 10 Purcell, Kt'inedy v 314,394 Purchas, Hfr'id "• ••• ■•• ••■ •■• ••• ••• ^72 duebec, Att.-Oen. I'. Att.-Gen. of Canada ... ... 484,499,500,633 ,, Attorney-Genoral of, Colonial Building and rnvestmont Comimny r. 46 ,, ,, P. Gray ... ... ... ... ... 546 „ Central Railway, Quebec Corp. v. ... ... ... ... 462 „ Corp. of, Blouin v. ... ... ... ... ... 120,101 „ Poulin (•. ... ... ... ... . . 90, 125, 161 „ Province «». Corp, of Huntingdon ... ,,. ... ... 163 „ „ Ontiirio Province I ... ... ... 483,545 „ Corp. V. Quebec Central Bailwa^ Company ... ... ... 462 „ Election Petition ... ... ... ... ... 22 flueddy lii^'i' t)i'iving Boom Company ii. Davidson ... ... ... (U; Queen's insurance Company, Attorney-General of Quebec v. 65, 68, 120 (2nd part), 127 (1st part) „ u. Parsons ... ... ... 116,270,278 ftuirt '•• The Queen ... ... ... ... 75,86,112,332,636 Radnor, Eii'l of, Lowtiicr ?'. ... ... ... ... ... 1082 Rai Sheo Singh "-Mussumut Dakho... ... ... ... ... 462 Railway Company r. Fuller... ... ... ... ... ... 200 „ Commissioners, South-Ea.st('rn Railway Company v. ... ... 90 Rainy I'- •fus'icps of Sierra Leone ... ... ... ... ... 412 Raleigh, Corp. of, v. Williams ... ... ... ... ... 466 Ram Sahuk Bose ''• Monmohini Dossee .. ... ... ... 430 Ramdass, Nathoobhoy, ('. Mooljee Madowdass ... ... ... ... 1010 Read ''• Ingram ... ... ... ... ... ... ... 57 Receiver-Cteneral, New Brunswick, Maritime Ba.ik v. 1, 7, 27, 31, 32, 109, 292 Redpath I • Allen ... ... ... ... ... ... ... 410 " " 32 (3rd part) 117, 119 (1st part), 320 (2nd part) Reed ''• Att.-Gen. of Quebec ... „ V. Mousseau „ Ward v. Reenen, Van, Orphan Board v. Reg. ''■ Alloo Paroo ... ('. Amers r. Anderson and Remo ... Arpin v. i<. Bank of Nova Scotia ... 1'. Bennett v. Uelleau Bertrand v. >: Burah I'. City of Fredericton V. Chandler Chevrier w. V. College of Physicians ... V, Coote V. Davidson !'. Doutrie V. Eduljco Byramjeo Exchange Bank of Canada v. ... 636 ... 103 ... 410 ... 409 10,33 ... 544 477 31,293 324,390 ... 626 33,418 22,49, 131,248,390,711 60, 62, 126, 129, 171, 196, 200 220,230 ... 473 70,420 ... 420 ... 33 ... 396 ... 409 31,288,293 c 2 XXVlll CASES CITED. Reg, Falkland Islfiiuls Company c. V. Farwoll V. Frawloy V. Halliday V. Hart V. Hodgo 50, 62, 03, 124, 125, 135, H7, 150, 248, 294, 324, 327, 329, 741, 1 V. Joykissen Mookorjce ... t). Justices of King'.s Kops v. Levicn v. V. Levinger w. Local Government Board V. London County Council V. M'Dermott ... V. M^Dougall ... Macqueen v. ... V, Maritime Knnk .. ... ... 1, ('. Mohr V. Murphy 0. Nova Scotia Bank i>. O'Rourke ('. Prittie Quirt ('. t'. Reno and Anderson ... I'. Kiel V. Robertson ... V. Russell. See Russell below. St. Catherine Milling and Lumber Company... ,, Severn v. ,, V. Stone „ !'. Taylor „ ('. Toland „ Toronto Bank V. „ V. Wa.son „ Windsor and Annapolis Railway Company v. Reno and Anderson, Reg. t'. ... Retemeyer v. obermuiier ... Rex *'• Cook „ Massachusetts Bay Company V. Rhode Island, State of, Fletcher v. ... Richer y. Voyer Rielt'. Reg. RiOUX, Griffith u. ... Ritchie ''• Lonour ... Robertson, Reg. v. ,, V. .Stoadman Robinson f- Canadian Pacific Railway Rodney, Lindo v. ... Rokeby, Lord, Dawkina ti. ... Ross or Hoskin v. Hurteau ,, t'. Torrance Boutledge t*. Low ... Royal Aquarium i;. Parkinson Russell i>. Lefraufois ... PAOK 415,419 ... 519 ... 126, 154, 325 ... 158 ... 105 153, 154, 161, 166, 191, 200, 054, 10.")6, 1058, 1063, 1069 ... 419 58, 161, 172, 1053 ... 416 417 107,418 90 ... 1083 413 ... 159 477 7, 27, 31, 32, 109, 292, 480 241,249 ... 418 31,293 ... 113 104,161 75,85,112,332,636 ... 544 11,12,46,538,547 72 94, 123, 296, 459, 484, 600, 533, 536 52,54,66, 158, 167, 196 ... 104 52, 55, 125, 161, 195, 1047 ... 107 ... 467 106,124 ... 292,162,486,493 .. 544 ... 411 ... 33 ... 1000 ... 101 ... 425 11,12,46,538,647 161,541 7,11,26,27,35,543 72 72,74 ... 463 ... 1006 ... 1083 ... 480 77 ... 92 ... 1083 474 ft rwiM iii ainiw i Hi PjIIW'l— i "" 'ii CASES ClTliD. XXIX Russell V. Rog. Ryan, Clarkson c. ,, V. Devlin 60, 02, 123, 124, 125, 129, 140, 146, 151, 162, 153, 171, 197, 325. 329, 1046, 1049, 1052, 1053, 1054, 1059, 1068, 1072 ... 460 22,317 Sailand t'. Goramill. , . St. Andrews, Minister of, Joiinston v. St. Anne's Mutual JJuilding Society, M'Cliiniigan v. St. Catherine's Milling and Lumber Company v. Rog St. George's Hospital, I'hilpott v. St. Jacques, L'Union, do Montreal, Beliele u. St. John Corp. u. Central Vermont Railway St. Lawrence nnd Ottawa r. Lett „ Tow Boat Company, Smith y Santacana f. Ardevol Sauvageau '•• Oauthier Schoolbred f. Clarke SCUtz, BiUkeley v. ... Severn f. Keg. Sewell I'. British Columbia Towing Company and Moodyville Sawmill Com- pany ... ... ... ... ... ... ... 322,461 ... 94 19,405 240,243 94, 123, 295, 459, 484, 500, 533, 536 ... 349 43, 45,67, 09, 70, 84, 127, 147, 264, 329, 1048 420,461 ... 444 ... 452 ... 424 421,431 88,321 ... 431 52, 64, 66, 158, 167, 196 Shea, Bimlton and Algoma Trading Company v. Shenton '•. Smith ... Sheo Singh Rai f. Mussumut Dakho ... SherbrOOke, Mi^Manamy V. ... Sheriff of Middlesex, The ... Sherlock v. Ailing ... Shields i. Peak „ or McLaren y. Leacock Shire v. Shire Shitta, Montaignac . . . Sibnarian Ghose I'. HuUodhur Doss ... Sierra Leone Justices, Rainy «. „ „ Ramsay v. „ ,, Smith t). Sinclair v. Broughton Skinner, Victoria, /» r« Slavin f . Corp. of Orillia Smart '•• Corp. of Hoehelaga Smiles ''• Belford ... Smith ''■ Goidio „ I', Justices of Sierra Leone „ Merchants' Bank r. ,, I'. St. Lawrence Tow Boat Company ,, Shenton r. .. Siajth, Kx parte ... Snadden, Ko-Khine y. Sookul Mohun Lall y. Becliee Doss ... Soule, Pacific Insurance Company y. ... South-Kastern Railway Company, Lambkin y. ... ,, „ „ ,, V. Railway Commissioners „ Norwich, Township of, HuBon y. SoUZa's Case Speaker of Legislative Assembly, Victoria, v. Glass Springle and Mayor of Montreal y. Brown ... 481 426 ... 462 ... 159 1079, 1082 ... 200 ... 88 ... 463 ... 435 ... 438 427, 430 ... 412 412, 483 ... 414 ... 418 ... 436 154, 167, 187, 212 ... 201 91,308 ... 88, 90, 91, 474 ... 414 65, 75, 299 ... 452 426 ... 89 ... 424 ... 430 ... 121 ... 423 90 164,195 414,420 12 ... 431 111 !«.■» w ■ ip, ^•^■■■■■■■li|.|UT.'»n!irir.|yf^ . MMMii XXX CASES CITKD. I Stace '•. Orifflth ... stark, -Main r. state <'f (Iiilifornia, .\lmy I', ... „ Maryland, Drown r. ... „ „ M'Cullonh c. „ New lliimiishiro, Pcirci. v. ... ... „ Rliodi! Isliuul, I'lotcliur r. Stevens, Ki^ii '•. ... Stewart, Al'i-ciin r. Stone, KcR. c. Story, C, on U.S., HOC. 1076 Sulivan, Kflly f. ... Sullivan, Lawloss t'. Suite '. Thrni) Kivors Examined Steadman, Robertson /'. „ Vonning u. Stevens I'. Fish Stewart, MaoLi'an ('. Sulpice, I'PS Eccle.siasti(iiic,s de, City of Montreal r. Suite f. Corp. of Tlirno Uivers Sun l''ire Ottico u. Hart Surnomoyee Ranee, Trannatli, Roy Chowdry r. Sussex reeragc Case Sweeny, Hank of Montreal f. Syed Ally, l^'ist Intl''* Company (I. Symes t'. Cuvillier ... Tareeny Chum Bonnerjee f. Maitland Taylor, liarton V. .. Taylor, Reg. 1'. Teluk, Chunder Rai, Baboo, Gopal Tiiakoor i\ ... Temporalities Jioard, Uoiiio i'. Tennant '•• Union Rank Theherge "■ Landry ... ... 22, 39, 40, Thomas, European and Korth American Railway v. „ ('. Fielding Three Rivers, t'orp. of, Suite I'. Thurlow '•■ Miw*. ... ... ... ... ... ... ... 452 „ y. M'Guire... ... ... ... ... ... ... 391 Wilson's Case ... ... ... ... ... ... ... 1083 Willson t'. Blackbird Creek Marsh Company ... ... ... ... 200 Windsor and Annapolis Railway v. Reg. and Western Counties Railway 292, 452, 486, 493 ,, Town of, Commercial Bank of Winnipeg u. ... ... ... 75 Wing Chong, Bull t). ... ... ... ... ... 63,122 Winnipeg, City of, v. Barrett .. ... ... ... 333,371,440 „ V. Logan ... ... ... ... 333, 371, 440 „ Commercial Bank, Town of Windsor u. ... ... ... 75 Wolcott, Diggs f 319 WooUey '. Att.-Gen. of Victoria ... ... ... ... ... 625 Wright, Cowan jt. .. ... ... ... ... ... 232,641 Yeap Cheah NeO, Ong Cheng Neo V. 426 '^?'"'*^'^'*f^f*lSffii!^39fiM ^ xxxii ) SECTIONS OF THE JJJMTTSIE NORTU AMERICA ACT, 'M) .^ Jtl \Il.T. c. 8. 18(57. Sc.' 1. 2. 3. 4. 5. e. 7. 8. 9. 10. 11. 12. 13. » 14. » 15. >» 16. » 17. >» 18. »> 19. >» 20. )> 21. »> 22. » 23. » 24. » 25. >» 26. » 27. >» 28. » 29. » 30. »> 31. » 32. » 33. t 34. Pr(!iuiilile ..-..-.. Titlo A|)|)li('ution of provisions rofcrriiifj to tlic Queen - ])iH'I»ration of union - ..... Construction of subsequent provisions of Act Four provinces ...... Provinces of Ontario iind Quebec .... Provinces of Nova Scotia and Now Brunswick Decennial census ..... . . Declunition of executive power in the Queen Application of provisions referring to Governor.General Constitution of Privy Council for Canada - All i)owers luider Acts to lie exercised by Governor. General with advice of Privy Council, or alone Application of provisions referring to Governor-General iu Council Power to Her Majesty to authorize Governor-General to appoint deputies ...... Command of armed forces to continue to be vested in the Queen -...--.- Seat of Government of Canada Constitution of Parliament of Canada .... Privileges, &c., of Houses First session of the Parliannmt of Canada - Yearly session of the Parliament of Canada - Number of Senators ---.-.- Representntion of provinces in Senate Qualifications of senator -.-... Summons of senator ...... Summons of first body of senator? .... Addition of senators in certjiin cases ... Reduction of Senate to normal number ... Maximum number of senators Tenure of place iu Senate; -.---- Resignation of place in Senate Disqualification of senators ..... Summons on vacancy in Senati! . . - . - Questions as to (jualifications and vacimcies in Senate - Appointment of Speaker of Senate .... 1 2 u 3 »» »« 6 7 I) »> >» 8 9 10 11 12 13 »» 14 >» 15 >» >» »> 16 »> » }\i mmm SKCTFONS OK TIIK JJ.N.A. ACT. XXXUl StM' 35. Quorum of Scniitf' 36. Votiii}; in Senate 37. Coiistitiition of Housti of Coinnion.s in Cunudii 38. Siunnioiiinf^ of Houso of ConuuonH .... 39. ScniilorH not to sit in House of Oomniona - 40. Klectora! districts of tlio four pi'ovinees 41. C'ontimuinw! of existing election liiw.s until I'arlinniciil of Canada otherwise provides .... 42. Writs for lirst election 43. As to casual vacancies --.... 44. As to election of Speaker of Ifonse of CominonH - 45. As to filling up vacancy in olHcu of Speaker 46. S[)eaker to prosidt- ...'.... 47. Provision in eas(^ of absence of Speaker 48. Quortun of House of Commons ..... 49. Votiii}^ in House of Commons . . - - - 50. Duration of House of Commons - . - - - 51. Decenni-il readjustment of representation 52. Increase of number of House of Coumions - 53. Appropriation and tax Bills . - . - . 54. Rccouunendation of money vot<'H .... 55. Hoyal assent to BillM ---..-. 56. Disidlowance by Order in Council of Act assented to by Governor-General ...... 57. Signification of Queen's pleasure on Bill reserved 58. A[)i)ointment of Lieutenant-Governors of provinccH 59. Tenure of office of Lieutenant-Governor 60. Salaries of Lieutenant-Governors .... 61. Oaths, &c., of Lieutenant-Governor . . . . 62. Application of provisions referring to Lieutenant- Governor 63. Appointment of executive officers for Ontario and Quebec --...-.. 64. Executivi! Government of Nova Scotia and New Brunswick ....... 65. Powers to be exercised by Lieutenant-Governor of Ontario or Quebec with advice or alone 66. Application of provisions referring to Lieutenant- Governor in Council 67. Administration in absence, Ac, of Lieutenant.Governor 68. Seats of provincial governments - . - . - 69. Legislaturt! for Ontario -..-.- 70. Electoral districts 71. Legislature for Quebec -...-. 72. Constitution of ligislatixe council . - . . 73. Qualiiication of legislative councillors - - . - 74. Hesignation, discpialilication, &c. .... 75. Vacancies rAQii 16 »» >( 17 »» >i 18 22 M 23 »» »» >» >> >» >» 24 25 >» 26 »» 27 28 30 >» >» 31 32 34 35 a »» >» »» 36 37 »» >» I ; XXXIV SECTIONS OF THE B.N.A. ACT. Hoc 76. , 77. , 78. , 79. , 80. , 81. , 82. , 83. , 84. , 85. , 86. , 87. , 88. , 89, , 90. , 91. Questions ns to vncancios, &c. Speaker of legislative council - . . . . Quorum of le}i;islative conneil . - . - - Votiii;^ in lefjislative council . . . - - Constitution of lejiisliitivo assembly of Quebec First s(^ssion of legislatures . . . - . Sumnioninff of legislative assemblies - - - - Restriction on election of liolders of olfices - Contiiniance of existing election laws - - - - Duration of legislative assemblies . . . . Yearly session of legislature - . . . . Speaker, quorum, &c. -..--. Constitutions of legislatures of Nova Scotia and New Brunswick - - First elections Application to legislatures of provisions respecting money votes, &c. -..-.. {Powers of Parliament Legislative authority of Parliament of C^anada - (1.) The imblic debt and property - - . - (2.) The regulation of trade and commerce (3.) The raising of money by any mode or system of taxation -.-.-.. (4.) The borrowing of money on the public credit (6.) Postal service ------- (6.) The census and statistics (7.) Militia, military, and naval service and defence - (8.) The fixing of and providing for the salaries and allowances of civil and other officers of the Government of Canada (9.) Beacons, buoys, lighthouses, and Sable Island (10.) Navigation and shipping (11.) Quarantine, and the establishment and mainttv nance of marine hospitals . - - . (12.) Sea coast and iidand fisheries - - - . (13.) Ferries lu twcen a proviuce and any British or foreign country, or between two [irovinces (14.) Currency and coinage - - - - - (15.) Banking, incorporation of banks, anil the issue of paper money ..---. (16.) Savings banks ------- (17.) Weights and measures - - - . - (18.) Bills of exchange and promissory notes (19.) Interest (20.) Legal tender (21.) Bankruptcy and in,solvency (28.) Patents of invention and discovery (23.) Copyrights. [Sec Acts all set out, p. SAdetseq.]- IMOR 37 »> >» » 38 »> 39 n 40 41 43 »» 52 66 69 » »» » 70 »> »» 71 »» 74 >» 76 f» »» »» 78 » 88 91 »!^i!tji;:t:ii::. SECTIONS OF THE B.N.A. ACT. XXXV 92. Sec. 91. (24.) IiuliaiiH, nnd lands roserved I'or the Indians (25.) Naturalization iind aliiMis (26.) Marriage and divorw .... (27.) The criminal law except the constitution of courts of criminal jurisdiction, but iududing the pro- cedure in criminal matters . - . - (28.) The establishment, maintenance and uiiinage- ment of penitentiaries . . - - - (29.) Such classes of subjects as are ex[)ressly excejited in the enumeration of the classes of subjects by this Act assigned exclusively to the legislatures of the provinces f Kxclusive powers of provincial legislatures I Subjects of exclusive provincial legislation (1,) Amendment from time to time, notwithstanding anything in this Act, of the constitution of the province except as regards the office of Lieu- tenant-Governor ------ (2.) Direct bixation within the province in order to the raising of a revenue for i)rovincial pur- poses (3.) The borrowing of money on the sole credit of the province (4.) The establishment and tenure of provincial offices, and the appointment and payment of provincial officers (5.) The management and sale of the public lands belonging to the province, and of the timber and wood thereon .-.-.- (6.) The estiiblishment, maintenance, and management of public an.) Lines of steamships between the pro- vince and any British or foreign country ------ (c.) Such works as, althougli wholly .situate wthin the province, are before or after their execution declared by the Parliament of Canada to be for the general advantage of Canada, or for the advantage of two or more of the provinces . . . . . (11.) The incorporating of companies with provincial objects ------- (12.) The solemnization of marriage in the province - (13.) Property and civil rights in the province - (14.) The administration of justice in the province, in- cluding the constitution, maintenance, and or- ganization of provincial courts, both of civil and of criminal jurisdiction, and including pro- cedure in civil matters in those courts (16.) The imposition of punishment by fine, penalty, or imprisonment, for enforcing any law of the province made in relation to any matter coming witiiin any of the classes of subjects enumerated in this section . . - - - (16.) Generally, all matters of a merely local or private nature in the province - - - . - 93. Legislation respecting education . . - - 94. Legislation for uniformity of laws in tliree provinces - 95. Concurrent powers of legislation respecting agriculture, &c. - 96. Appointment of judges 97. Selection of judges in Ontario, &c, . . . - 98. Selection of judges in Quebec - - - - - 99. Tenure of office of judges of superior courts 100. Salaries, Nc, of judges 1.01. General court of appeal, &c. [See for Practice of tile Privy Council] 102. Creation of Consolidated Revenue Fund - 103. Expenses of collection, &c. 104. Interest of jirovineial public debts - - - - 105. Salary of Goveruor-tieneral - . - - . 106. Approiniation from time to time - . . . 107. 'J'ransfer of stocks, &c. ------ 108. Transfer of properly in schedule - - . - 109. Properly in lands, mines, »te. - - ■ - - 110. Assets conueeled wilh provincial (U'l)ts - - - 111. Canada to l>e liable lor provincial debts I'AOK 225 »» 234 249 257 308 - 324 328 332 388 389 >j 393 >» 394 394 483 485 >» »» 486 499 526 fiWWItBfWiBPW •.^»mihft*t tttir SECTIONS OF THE B N.A. ACT. XXXVll Sec. 112. >» 113. i> 114. >» 115. >» lie. » 117. » 118. )> 119. » 120. » 121. »> 122. » 123. )) 124. >» 125. » 126. » 127. » 128. )> 129. » 130. )) 131. » 132. » 133. )) 134. )> 135. )i 136. » 137. )) 138. )) 139. )) 140. » 141. )> 142. » 143. » 144. » 145. »i 146. 1' 147. VAOE Dobts of Ontario and Quebec 532 Assets of Ontario and Quebec -----„ Debt of Nova Scotia 533 Debt of New Brunswick - - - - - ,, I'ayuient of interest to Nova Scotia and New Bruns- wick -----"--„ Provincial public property - - - - - „ Grants to provinces ""■"■»» Further grant to Now Brunswick - - - - 534 Form of payments „ Canadian manufactures, &c. 535 Continuance of customs and excise laws ■ - - »> Exportation and importation as between two provinces „ Lumber dues in New Brunswick "---,, Exemption of public lands ,, Provincial consolidated revenue fund - - - 536 As to legislative councillors being senators - - 537 Oath of allegiance, &c. ------„ Continuance of existing laws, courts, officers, &c. - ,, Transfer of officers to Canada .... 541 Appointment of new officers - - - - - „ Treaty obligations -------„ Use of English and French languages - - - 542 Appointment of executive officers for Ontario and Quebec „ Powers, duties, Ac, of executive officers - - - 543 Great seals .------- ^^ Construction of temporary Acts '"""»> As to errors in names --..-. 544 As to issue of proclamations l)cfore union to com- mence after union - „ As to issue of proclamations after union - - - „ Penitentiary .---.--. 545 Arbitration respecting debts, &c. -"■-«, Division of records ■--"■--», Constitution of townships in Quebec ' " " »» Duty of Goverinnent and Parliament of Canatt 38 Vict. v.i7. 37&38 Vict. c. 41. 37 it 38 Vict. c. 77. 38 iV: 39 Vict. c. 38. -.-.... 38 ><: 39 Vict. c. 53. 38 & 39 Vict. c. 88. [Alfirniing Can. Copyrif^lit Act.] 39 & 10 Vict. c. 59. 40 & 41 Vict. c. 23. 40 & 41 Vict. c. 59. - - - ... - 41 & 42 Vict. c. 67. 43&41 Vict. c. 20. [E.\tmct from. I .... 41 & 15 Vict. c. 3. - - - - - 44 Si 45 Vict. c. 58 » »» »> 745 746 754 755 758 »» 762 »» 764 774 786 787 789 773 799 1025 800 801 803 809 1026 811 820 821 822 » 823 855 1026 824 812 825 818 1028 825 m xl REFERENCE TO STATUTES. 1 r.vfiE •11 & 15 Vict. c. fiil. 826 45 & 4G Vict. c. 72. [Extract from] 819 45 & 10 Vict. c. 70. - - 837 4ii & 47 Vict. c. 30. „ 40 & 47 Vict. c. .-,7. 1028 47 & 4H Vict. 0. 24. 840 47 & 18 Vict. c. 31. 841 47 & 48 Vict. c. 02. 840 Copyright Acts 846 Berne Convention Act (19 A 50 Vict. c. 33.) - - - - 868 49 & 50 Vict. c. 33. „ 49 & 50 Vi(;t. c. 35. 887 50 & 51 Vict. c. 13. „ 50 & 51 Vict. c. 70. 1029 51 & o2 Vict. c. 05. 888 53 & 54 Vict. c. 27. „ 53 & 54 Vict. c. 37. 1031 American Cojjyriglit Act [iis amended, 1891] - - - - 875 55 & 56 ^^ict. !• - 903 55 & 50 Vic; > . 908 55 & 50 Vict. 906 I3ehriug Sea Award ......-- 910 57 & 58 Viet. > .?:. „ 57 & 58 Vict, e 30. 926 57 Si 58 Vict. c. 39. „ Mereiiant Shipping Act, 189 1 [summarized] 57 & 58 Vict. c. 00. 927 58 & 59 Vict. c. 34. 1002 58 & 50 Vict. c. 44. 1030 59 Vict., Sess. 2. c. 3. - .... 1003 «9 ii'Si!ffi5!-r?invi«' ' :H' !ff!! '!v ' " ' !ff l - ! •^mrnfi »«.^«*n*i» •ialli CANADIAN^ LAW. BRITISH NORTH AMERICA ACT [IMPERIAL]. 30° VICTORIiE, c. 3. An Act for the Union of Canada, Nova Scotia, and New Brunswick, and the Government thereof; and for purposes connected therewith. [29th March 1867.] WIIEllEAS the provinces of Canada, Nova Scotia, and New Brunsicick liavc expressed their desire to be federally ^ united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in princii)le to that of the United Kingdom : ' 'I'lic provincial le<;islatni'i's lid not occupy the siilKH'iliiiiitc [jiosition of independent municipal institutions. 'I'iiey " dei'ive no au- [tliority IVoui tiie (io\ eminent of I Canada, and tlieir status is in no nvay analogous to that of a nnmicipal Jinstitution, which is an authority constituted for the pm-pose of local whiiinistration." ■ The ol)ject of the Aft of 18G7 WIS neither to weld the provinces ato one, nor to subordinate pro- Irincial fjoverunients to a central iuthority, hnt to create a federal toxcrnnient in which they siioi Id VI l)e represented, entrusted wi h lie exclusive lulininistration of ffuirs in which they had a couiiuoii Merest, each province retaining its ^dependence and autonomy," with b 2310. the pnu'ogativo of the Queen as FEDEnArxv extensive in each pi'oxince (except United. where expressly limited by local law or statute) as in Great Jiritaiii. These " objects were acc()mi)lished by distributing between the Do- minion and the provinces, all Ijowers, executive and legislative, and all i)ublie property and re- \eimes which hail pre\iously l)e- longed to the provinces ; so that the Dominion Government should be M'sted with such of these powers, property, and revenues as were necessary for the due performance of its oonstittitional functions, and that the remainder should be re- tained by the provinces for the purpose of provincial government." The Queen's prerogative not being touched. See Maritime Bank of Pil 1 1 1 i ; Short title, Application of provisions referring to the Queen, 2 B.N.A. ACT, s. 1.— INDEPENDENCE RETAINED. ' And whereas such a Union would conduce to the ' welfare of tlie provinces and promote the interests ' of the British Empir(- : ' And whereas on i\\Q: estahlishment of the Union ' hy authority of Parliament it is expedient, not only ' that the constitiition of tlie legislative authority in the ' Dominion he provided for, hut also that the natvu-e ' of the executive government therein he dc^clared : ' And whereas it is expedient that provision he made • for the (\ventual admission into tlie Union of other ' parts of British North America : ' Be it therefore enacted and declared hy the Queen's most Excellent Majesty, hy and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assemhled, and hy the authority of the same, as follows : I . — Preliminahy. 1. This Act may he cited as The British North America Act, 1867. 2. The provisions of this Act referring to Her Majesty the Queen extend also to the heirs and suc- cessors of Her Majesty, kings and queens of the United Kingdom of Great Britain and Ireland. C'nnada v. Now Brunswick IJc- cciv.T-Gencml, Julv 2, [1802] A, C. 437: 01 L. .l! V. V. 75; U7 L. T. 12(5 ; H T. L. 1{. 077 ; ropoit- ed l.i'low 1 7 & 20 S. C. K. 057, 0!)5. "'riuMlt'cianitionsot'tlu'Doiniiiioii Piirlianu'iit are not, of course, con- elusive upon the construction of the B. N. A. But when the propei' construction of the language used in that Act to define the distribution of legislative ])owers is doubtful, the interpretation put upon it hy the Dominion Parliament in its actual legislation nuiy properly be considered." See Citizen.s' Insurance Co.r. Par.sons,Nov. 20, lHHl,7A])p. Ca.s.p.ll6; 51L.J.P.C. 11 ; 15L.T. 721 J and inCt.below, 4 S.C. U.215. Also " it is not necessary to rest the authority of the Dominion Government lo incorpoi'ate com- panies on this specific and enume- rated power ['the rt'gulation of tradi' and connuerc(^']. The authority would belong to it by its genenil power o\er all matters not t-omiii^' within the classes of subjects as- signed exclusively to the legislii- tures of the provinces, and the only subject on this head assigned to the pro\iiicial legislattues l)eiii}; ' the incorporation of companies with provincial objects,' it follows that tlie incorporation of companies for objects other than provinciiil falls within the general powers of the Parliament of Canada." Ibid. ■MM ED. B.N. A. ACT, s. 3.— HISTORY. e to tlie interests lie Union not only ■itv in the c lie nature ired : n he made 1 of other 10 Queen's idvice and poral, and nhled, and fish North no; to Her I's and suc- :ns of the eland. .(■ossary to ivst \\w Uoiiiinioii l-orpoiate (.'oiii- W anil fimnii'- |vulatu)U<>t"tiwl>' The authority 1)V its gfiu'iiil tors not c'oniiii}; lot' snbjei'ts as- to tlu' U'gislii- [fs, and tlie only l-ad assigned to cislatnres being of eonipanifs Ijeets,' it follows Ion of eonipanics than provineial iieral powers of Janada." /i'''' II. — Union. 3. It shall he lawful for the Queen, hy and with 5^,11^™*'°" "^ the advice of Her Majesty's most Ilonourahle Privy Council, to declare hy proclamation that, on and after n day therein appointed, not heing more than six months after the passing of this Act, the provinces of Canada, Nova Scotia, and New Brunswick shall form and he one Dominion under the nam(5 of Canada ; and on and after that day those three provinces shall form and he one Dominion under that name accord- ingly. 4. The suhsenuent provisions of this Act shall, unless Construction ^ ■•■ _ , ot silbscqlient it is otherwise expressed or implied, commence and have inovisiuns of (>n'ect on and after the Union, that is to say, on and after the day appointed for the Union taking eifect in the Queen's proclamation ; and in the same provisions, un- less it is otherwise expressed or imjdied, the name Canada shall he taken to mean Canada as constituted under this Act. 5. Canada shall he divided into four provinces, Pour provinces. named Ontario, Quebec, Noi'a Scotia, and New Bruns- wiclc} ' The B. N. A. Aet, 1871, lii Vict. e. 2S., provided that the Do- minion niiglit admit or establisli new ])i()vin('es. (Sec Act, post.) And the H. N. A. Act, IHHO, IJ) & 50 Vict. e. 35., enacted tliat represen- tation in tlie Dominion Parliament [mi^ht lie given to territoi'ies ont- Iside a province. The Dominion now. May 1895, Iconsists of the provinces of On- itorio, Quebec, Nova Scotia, Netv \Brini.swicli, British Coluinbia, Prince Edward Island, North- yi'e.st Territories, Manitoba, in- cluding Keewatin. Xevvfolndland lias not yet loined the Union, hut negotiations ^e far advanced towards that de- rahlo ohjeet. History. — The Dominion. — The first Parliament at Ottawa June 8, 18(50. Dominion consti- tuted 1867, .30 Vict. c. .3., and made effective hy Proclamation 1st .Inly 18(i7. " Hudson Bay territories added 1870. Supreme Coui't established and met .July 5, 187G. All adjacent territories, except Newfoundland, annexed 1880. The Dominion also in- cludes all the Arctic islands ex- cept Greenland, and Anticosti, Prince Edward Islanper C^uiada. The I'arlianu'iit met 17 September 1702 (sir 31 Geo. 3. c. 31.), and introduced the Eiif^lish civil law, trial liy jury, and the recovery of snudl dehts, To- ronto heinij selected as the capital. At the conciuest of Quehec To- ronto was a forest, and New Jhiins- wick was known as Sunbury. The revolt of the American Colonies was the dawn of the prosperity of Upper Canada. Many thousands of l{oyalif-ts tied into Canada, and the "Unity of the Empire" list was made out. The children of the.se fu;;iti\es, as well as tho.se hereafter born, were declared entitled to 200 acres of land on reachinjf twenty- one years of ajje. QuKREc was the old Province of Lower Canada. By the fall of (inel)ec in 17o!) tiie Enj^lish be- eame masters (see Treaty of Paris, 10 February 1703) of teri'itory which had been for 150 years a constant source of strife between France and Fn<;land. Therefoi'c, in (^neliee, the old Frencli law anil lan, U> April 170(5), but the En}i;lisli criminal law has been enforced there since 1700. {See also debates in Parliament on Quebec Bill, 177«.) The evils of seignorial tenures (abolished 1H54) and equal partition of land among the children existed. The Act of 1774 (14 Oeo. 3. e. 83.), which formed the se.eral territories and possessions, excluding Newfound- land, into the Province of Quebec, gave Roman Catholics the free exer- cise of their religion, their aeeustoin- cd dues, with the exception of those lands held by Protestants, who were freed from payment, and repealed the I'roclamation of 17(53, and es- tablished new boundaries. The French law was declared the ride I'oi' decision relative to property and ei\il right, while the English criminal law was establishey theTreaty of Utrecht. By this treaty the French made o\er to FnjiUind " All Acadia com- prised within its ancient bounda- ries.'" France retained Cape Hreton mid I'rinee Edward Island. The French soufi^ht to conline this Acadia to the peninsida, Nova Seotia ; but the Eufrlish main- tained the ecdi'd territory included all the surroundiu}; islands and part of the mainland, called now New Erunswiek. Thei-e was a (■(instant quarrel over this, and, be- c(iiiiiiiominiok. Rritisu Coi.uMiiiA was admitted into the Union as from 20 .Inlv 1871. {Sec (). in C. 10 May 1871.) Governor, Council, and Legislatixc Assemblv, 18')8 {.see 21 liiii<; stations since 1G2U. Ab- Molntcly olitaini'd by tlic peace ol' I'tivelit, 171.'{. Aldn;:; tlie Atlantic side of Mova fSeotia, Cape Hreton (not British nntil IT'jHjjand New- foundland are inninnerable hanks of shallow sea» called the "Banks," which are swept by the powerful Atlantic current called the Gulf Stream. These banks are most fa- vourable for th(^ propagation of cod fish and lobsteis, and the result is that there have been constant {\\nw- rels between the Kn^lish, French, and Americans as to the ri<;ht to fish and cure lish ; the French liavin<; the adjacent islands of St. I'ierre and Miquelon ; and the Americans the adjoiniuf^ coast. (.See Treaties of I'lrecht, 171,'i, lUid Versailles, 17t>.'{,aslo Frciuhclainis; and as to American, the Treaty of Uhenl, 181 I ; London, 5!) Geo. .'{. c, ;j8.; 'I'reatyof Washinjrton, 1812, vidv Hertslet ; and Behring Treaty, 1894.) Its constitution was sns- jjended IS 12-7. llesponsdde gov- ernment 185.J. Has a Governor with a (.'onncil,anda House of Assend)ly. Acts of imperial Parliament dealing withXewfoundiaud, U)it 11 Will.3. (1GJ)!>) c. 25.; 2 Geo. 2.c. m. s. 25 [Seamen] ; 15 Geo. .3. (1775) c. .'H. a. l.'{ [Seamen]. Above in part re- pealed bv 5 Geo. 1. c. 51. 31 Geo. 3. (1791) c. 29. [giving right of appeal to P. C] ; 32 Geo. 3. (1792) V: 1(5, [t'onrts of .fudicature and right of appeal to i'. V.\ ; .'{3 Geo. 3. (1793)c. 7(5. [the Supreme C'(»urt an I Admiralty Couit] ; 19 (Jeo. 3. (l8()9) c. 27! [Labrwlor] ; 5 (feo. 1. (1821) c. (57. [appeals to High Court Admiralty P. C] ; 5 Geo. 4. (1824); c. (58. [repealing 57 Geo. 3. c. 51. ; and celebration of mar-- riage by person licensed by Gover- nor and befoi'c two witnesses to be valid]. 2 & 3 Will. 4. c. 78. [gives power to As.senibly to alter 5 Geo, 4. c. (57. ; 5 Geo. 4. c. (58. ; 10 Geo. 4. c. 17.]; 5 & (1 Vict. (1842) c. 120. [Property (pialilica- tion of member ot Assembly mad*' £500, Her Majesty's prerogalixe preserved]; 12 & 13 Vict. (1819) c. 21. [idlirming 9 & 10 Vict, e, 3. and 10 V^ict. e. 1. Newfoundlund Acts]. LabuadoI!, from the ii\er of .St. •lohn to Hudson Straits, with the islands of Antieosti and Madelaine, and all smaller islamls wasattai-hed to Xewfoundland, 1703. {See I'l'o- ciam.'ition, 10 Februai-y.) Kestored to Province of (Quebec and Nova Scotia, 1774. {See 14 Geo. 3. c. 83 ) Jte-annexed, except Made- laine Island, to Newfoundland, 1809. (49 Geo. 3. c, 27.) Now part of Labrador, by letters patent, 28 March 1870, belongs to (Quebec ; to the North-We.st Terriories ; and to Newfoundland. The above is a short account of the comiionent parts of this great dt;- pendcney of the British Crown in North America. Provinces of Oiitiirio and Qiiolico. 6. The parts of the province of Canada (as it exists at the jiassing of this Act) which formerly constituted respectively the provinces of Upper Canada and Lower Canada ' shall be deemed to he severed, and shall form two separate provinces. The part which formerly con- stituted the province of Upper Canada shall constitute the province of Ontario ; and the part which formerly * See Note, sec. 5. B.N.A. ACT, 8. 7— EXECUTIVE POWER. ? const it iitod tlu! province of Lower Canada shall constitute the province of Quebec. 7. The provinces oT Nova Scotia ' and New Brims- f/nvinc-r- of ' ' i- _ ^ ^ova Scotia ^•/cA; ' shall have the same limits as at the passing of and Now .... Brunswick. this Act. 8. In the s'eneral census of the populatiim of Canada DcconniBi . ^ *■ Census. which is lierehy r(;f[iiired to ho taken in the year one thousand eight hundred anu seventy-one, and in every tenth year thereafter, th(> respective populations of the lour provinces shall he distinguished. III. — Executive Power. 9. The (rxccutivo government and authoritv of and ''•""lafntion of over Canada is herehv declared to continue anil he vested p"««'' '» the ' Queen. in the Queen.^ 10. The provisions of this Act referring to the Appiicntion of ' " provisions rc- Governov-Cjieueral extend and apply to the Governor- ferringto (icneral for the time heing of Canada or other the chief General, executive officer or administrator for the time heing carrying on the government of Canada on hehalf and in th(> name of the Queen, hy whatever title he is desig- nated. ■'!i ' Sec Note, sec. 5. - 'I'lif IjiiMiti'iiant-Govcnior,wli('n iiplioiiitcd, ivprcsi'iits till' (^uccii for nil puriiosi's of provincial }i;()vciii- nu'iit;ror,ln .scc.oHjtlu'iippoiiitmcnt of n provincial governor is made by the "(jiovcrnor-QciU'ral in Council l>\- instrument under the {^reat seal of Canada," or, in other words, by tlw executive Govorunient of the Dominion, wiiieh is bv this sec. 0. expressly declared " to continue and lie vested in the Queen." (Maritime Bank of Canada r. Xew Ihiuiswick Receiver-General, I" S. C. R. G57; July 2 (1892) A. V. 1.37 ; Gl L. .J. 75'; 67 L. T. 12G; 20 .S. C. R. 095 ; *ce sec. 64, post.) liKNoiK r. Ritchie, November 4, 1879, was an appeal from the Supreme Court of Nova Scotia, and Lenoir v. heard by the Supreme Court of Canada (.'5 S. C. R. 575). It de- cided, 1st, an appeal lay; 2nd, that the respondent, appointed Queen's Counsel by the Governor-General in Council in 1872, could not be deprived of his precedence by the appointment as Queen's Coun.sel of the appellant by the Lieutenant- Governor of Nova Scotia in Coun- cil under the 37 Vict, c, 20. (1874) and 37 Vict. c. 21. of that pro- vince, by which preceilence over the respondent was purported to be given to the appellant. The Su- preme Court held the Acts were ultra vires. [See Notes, pp. 11, 35.] I'li;. iSi| w ! Constitution of Privy Couneil for Cniiada. All powers uiitlcr Acts to be exorcised by Oovernor- Genoriil with advii'o of Privy Council or alone. 8 B.N.A. ACT, s. 11.— ADVICE OF PIUVY COUNCIL. 11. Thciv shall he a Council to aid and advise ' in the s^ov(M'nin»Mit of Canada, to be stylod tlio Qucon's Privy Council I'ov Canada ; and tlio jKM'sons who arc to bo mtMnbors of that Council shall be, from tiino to time, chosen and suminonod by the Governor-CJeneral and sworn in as I'rivv Councilkn's; and members thereof may h(\ from time to time, removed by the CJovernor- Gcneral. 12. All powers, anthorities and functions which, under any Act of the Parliament of Great Britai>i, or of the Parliament of the United Kinjirdom ol" (h'cat lit'} tain and Ireland, or of the Leirislatiire ol" Upper Canada, Loa'er Canada, Canada, Xora Scotia or Nea- Briinsicicli', arc at the Union vested in or o.verciseable by i\\'\ respecti\(' Governors or Lieutenant-Ciovernors of those provinces, with the advice, or with the advice and consent, of the r(>sj)ective l<]xecutive Councils thereof, or in conjunction with those Councils or with any numl)er of members thereof, or by those Governors or Lieutenant-Governors individually, shall, as far as the same continue in existence and capable of beini? exercised after the Union in relation to the Govern- ment of Canada, be vested in and cxcrciseablc bv tlic ' A conv.'^poiulciKH' iirose bo- Iwcon tLi' Sci'i'i'tarv of Stalt> I'dr tlie Cdloiiit's 1111(1 llu' Minister of Ju.stic'i' lis to wlu'llicr (lif (lOMT- iior-Goiii'riil wiis to li<> coinpli'li'ly ;;iii(U'(l hy liis Council, or wlicllici' he I'ouhi, aftt-r takiii};; tliat ailvk'c, still follow his own oiiinlou if it were conlrai'v. Earl Kiiiibiulcy, SOtii .Inn ■ IH7u, forwarili'il the o|)iiiion of tin- law oHicer.s of the Crown in Enfjiaiul, that till' »iii('st'oii wlifther a pio- viiit'ial Ai'l slionld he ilisallowcd was a niattiv in wiiic-h Mis E.xfd- IciH'j' sliou'i' act on liis own in- dividual opinion and in which he could not bu guided by the advice of his repousible ministci>. liord {\irnar\()n siifjgcsted it was one in wiiich it was more in accor- dance witli the spirit of tlicCoiistilii- tion that a rigid rule action should not be established. 'I'lie Minister of Justice replied I hat Ill-'^Lxcellency's ministers (whose reconmiendation is essential to action) are respon- sible iu)t inerely for the advice given, but also for the action taken ; that the Canadian I'arlia- nieiit has the right to call them to account not merely for what is propo.sed, but for what is done, in a word, that what is done is prac- tically tluir doing (liliie Hook, IHHti, p. 18). A formal report on all pro\iiicial doubtful Acts or sections is now made by the Minis- ter of Justice or his Deputy. . I* IBI I3.N.A. ACT, s 13— OLD ACTS OF PKOVINCKS. 9 Governor- General, with the advice, or with tlic advice and consent of, or in conjunction with, the Queen's Privy Council for Cdiiada or any members ther(M)l', or hv the CJovernor-General indivi(hially ' as the case requires, suhj(>ct nevertheU'ss (except with respect to such as exist uiuhn- Acts of the Parliament of Greai Britain or of tlie Parliament of the United Kingdom of Great Britain and Ireland) to be abolished or altered hv the Parliament of Canada. 13. The provisions of this Act refiM'rinp: to tlic '^_!;>;'r:;^^^^^^^^ Governor-General in Council, shall be coi\strued as nforrinn to referrinsf to the Governor-General ictini:? by and with (icneniiin the advice of the Queen's I'rivy Council for Canada.^ """"' " 14. It shall be lawful for the Qui'eii, if Her ^Fajesty thinks tit, to authorize the Cioveriun'-General, from time to lime, to appoint any person, or any persons jointly or severally, to be his deputy or de[)iities, within any part ov parts of Canada, and in that capa- city to exercise, during the pleasure of the Governor- rower to Ilor MiijoNty to .lutlicirize (iovcnior- GolllTIll to a|ipi)int (Icputii's. ' It was arfjiiod intlu' Att.-IJkn. OK Canada r. Ati'.-Iikn. of Ox- TAHIO, 1S!)2, ;{().A. !{.(); li)(). !{. •17, tliiit llic wliolc iniissof t'xccutivi' autliorilv is divided into two imii'Is, that portion of wliivli is capaldi' of U'i\\}i I'xcii-isfd witii rt'lation to llif HDXt'rnnicnt of tin- Diiiiiiiiioi) lic- iiig placed in the hands of the (ioverni)i-Cieiu'ial, and lliat por- tion wiiieh is eai)al)le of liein-j; exercised willi relation to the piveninienl of the pi-ovinees lieinij; Vested in the liientenanl-Ciovern'M's. And ilie exeentivi' antlioiity whieh goes to the latter is of the stinie nature, of the same 'irijjin, of tho winie or even hi<;iier antiiinii v, he- cause it was practically continned lioni the old provinces. Therefore llu' provincial executive authority lias no! nuv subordinate or inferior actinjj; in her name for Canada is till- exeentivi' authority possessed by the Lieiilciumt-CJoveriun" aetiu}; as the t^ueen" representativi' for tho provinc. . .Se<' sees. rA> ami !)0. By see. oO, the dis'dlowance of Canadian statutes is vested in the Queen in Council. By sec. !)() tliis provision is extended to each |)rovince, with t he substitution of the Governor-(}eii>'ral for the Queen, tiierefore the jjovver of disallowanci' of provincial statutes is vested in the (iovermir-CJeneral in Council, a phrase which under this .section means the (it veriior-Clenend acting by ami with the advice of the Queen's I'rivy Council for Canada ; so argued the Minister of .luslice in 1875 (Prov. Leg., 18H(!, p. 17) in his contest with Earl Carnnrvon that the (iovernor shoidd act under Att.-Okn. op Canada c. Att.-Okn. or Ontario. nature or (padity. Of just the the advice of his Privy Cnuucil in sami" nature m that possessed by allowing or disallowing proviuciul the (^lu'en's direct irptpsontative Acts. (6VfSoc. li) r 10 B.N.A. ACT, H. 15.— GOVERNOR-GENERAL. Command of armed forces to coiitinuc^ to be vested in the Queen. General, such of the powers, authorities and functions of the Governor-General as the Governor- General deems it necessary or expedient to assign to him or them, suhject to any limitations or directions expressed or given hy the Queen; hut the appointment of sucli deputy or deputies shall not affect the exercise by the Governor-General himself of any power, authority or function.^ 15. The command-in-chief of the land ai'l naval militia, and of all naval and military forces, of and MUSOBAVE V. PULIDO. ' See sec. Go as to the Provinces. Does Ihi.s mean that there may l»e two persons with jjower to exer- cise one function ? 'J'he clause proridcs the Governor-Genera! may appoint a deputy and may at the same time reserve the power of him- self exercising the functions. (Att.- Genl. Canada r. Att.-CJeid. Ontario, 1H92, 3 O. A. R. 6; 19 0. R. i7. Sec wiiere a Deputy - Governor acted, Rej;. r. the Amers, Felt. 2'3, 1H7H, -12 U. V. Q. B. at p. 40H.) In MrsiSRAVE r. Puudo, Decem- ber 13, 1H79, 5 App. Ca,s. 102; 49 L. .J. P. C. 20 ; 41 L. T. 629 ; 28 W. R. 373. There it wa.s held that a governor of u colony [.Jamaica] does not j)ossess sovercif!;n power. His authority is derived from his commission, and is limited to the power thereby, expressly or by im- plication, entrusted to him. And he may sue in the courts of the colony of which he is governor. That a governor of a colony is in the nature of a viceroy was said to be laid down by Lord Mansfield in Mostvn 1'. Fabrigas, 27 January 1775," 1 Cowp. 161-172; 2 W. Bl. 929. But this was declared to be without legal foundation in H!l! v. Bigge, 4 December 1841, 3 Moo. P. C. 46.5. By Lord Brougham, who also snid Mostyn r. Frubrigas WH.S only a decision that Governor Mostyn was liable to 1)e sued in England for personal wrongs done bj him while Governor of Minorca. In Hill r. Bigge, counsel for Gover- nor, Sir G. F. Hill, the appellant, said the point had been expressly de- cided in Canada in Harvey v. Lord Aylmer, 1 Stuart, K. B. L. (J. 542 ; that there an action of debt was brought against the governor by a servant f-^r wages. The governor j)leadcd in. governorship and the exception was allowed. But it is to be observed Sewell, C.J., in giving this judgment, relied on Mostyn v. Fabrigas, Lord Broug- iiam in Hill c. Bigge cited Dutton r. Howell, executor of Sir John Wvtham, in the House of Lords, 27" January 1693 (Shower 24), and .stiid that the acquittal of the gover- nor there went upon the ground that the governor and his council had acted judiciously. It ajjpears from the printed papers of Dutton r. Howell in the House of Lords tliat Sir Richard Dutton, going on leave t)f absence from Barbados, appointed Sir .John Wytham Deputy-CJovernor ; that Sir Richard Dutton on his return received complaints against Sir John. He and his Council there- upon ordered the connnittal of Sir .John Wythnm. On Sir Richard Dufton's return to England, Sir .Joiin Wytham raised this action in Enghind against Sir Richard Dut- ton and five other tlefendants, his Council. The jury gave £500 for the imprisonment, and the Exche- quer Chamber affirmed this decision, but the House of Lords reversed it. B.N.A. ACT, s. 16.— PRIVILEGES OF PARLIAMENT. 11 in Canada, is hereby declared to continue and be vested in the Queen. 16. Until the Queen otherwise directs, the seat of ^ZlilF^''"" irovcrnmcnt of Canada sliall be Ottawa. Canada. IV. — Legislative Power.^ 17. There shall be one Parliament for Canada, con- Constitution of *' • ' Pari lament of sisting of the Queen, an upper house styled the Senate, Canada, and the House of Commons. 18.'^ The privileges, immunities, and powers to be If^]^^^^ *'^" held, enjoyed, and exercised by the Senate and by tlic House of Commons, and by the members thereof respectively, shall be such as are from time to time (Ictined by Act of the Parliament of Canada, but so that any i\ct of Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by tiu' Commons House of Parliament of the United King- dom of Great Britain and Ireland, and by the members thereof. ' Coinpnif this language with the langiiagc of .sec. .58 ct seq,, giving power of legi.shition to the provinces. Sea Uiol r. the Qiicon, October 22, 1885, 10 App. Ca.s.675. The prisoner was tried under pro- visions of the Dominion Act, 43 Viet. 0. 25., autliorised by the Ini- l)erial Act, SI & 35 Vict. c. 28., proviihng a mode of criminal trial for the N(irth-West Territories different from Knglish criminal pro- cedure. The trial was held good. [See .sec. i»2, sub-sec. 27.] See for ipiestion of precedence between Queen's Counsel appointed pealed, without prejudice to any by the (Jovernor-Geueral and the tiling done under that sectiou, provinces, Lenoir c. Ivitchie, and the following sectiou shall 1k' November 1, 1879, .3 S. C. R 575. substituted for the section so re- Sw.sees. 9, G4,and ()5. This case pealed." deciiled tlmt Lieutenant-dlovernors After tleclaring there shall be coidil appoint Queen's Coun.s«d, but one Parliament of Canada, this it was ultra rircs to give them pre- .section provides for Parliament's ^dence over previously appointed privileges. (See Valin r. Langlois, Dominion Queen's Counsel. 3 S. C. R. 1. In P. C. December 13, The Mini.ster of .Justice, 21 Feb- ruary 1874, as regards a Mani- toba Act which used the word " parliamentary," and as regards an Ontario Act, 31 Vict. c. .'UK sec. 12, in which the same word was u.sed, recommended that the word shovdd be explained as metuit to signify only the local asseniblv. (Prov. Leg'., 1886, p. 591.) ~ The original section was re- pcah'd by 38 & 39 Vict. c. 38. (1875) s.'l:— " Section 18 of the British North American Act, 18G7, is heieby re- 12 B.N. A. ACT, s. 19.— PROVmCIAL PRIVILEGES. First session of \Q^ ^lie Parliament of Canada shall be called to- tho Parliament of Canada. E:ether not later than six mouths after the Union. Yearly session of the Parlia- ment of Canada. Number of Senators. 20. There shall be a session of the Parliament of Canada once at least in every year, so that twelve months shall not intervene between the last sitting of the Parliament in one session and its first sitting in the next session. The Senate. 21. The Senate shall, subject to the provisions of this Act, consist of seventy-two members, who shall be stvled Senators. 1879; 5 App. Cas. 115; 49 L. J. P. C.37; 41 L. T. U(i2 ; amlDo- ininion Act 37 Vict. c. 10. RiEL V. The In Riel r. Thk Qukkn, Oct. QuHBN. 22, 1885, 10 App. Ciis. G75, the Doininiou tried Kiel for high treason under iin Act constituting a different criminal proce(hne than that estahlislicd in England. The Minister of Justice (J. A. M'.cdonald) reported, 3 November .809, that the Quebec Act, 32 Vict, c. t., to define the privileges and immunitii's of the Legislative Council and Legislative A.ssend)ly of Quebec, was nltni rircs , no power being given to the i)rovin- cial legislature to i'«'' » J 1 HI Scimtr. Act, hold his place m the Senate for lire. 30. A Senator mav, bv writing under his hand, K<-sif;nation of addressed to the Governor-General, resign his place in the Senate, and thereupon the same shall be vacant. 31. The place of a Senator shall become vacant in Di.s.|Uiiiifica- any of the following cases : — .Seimtors. (1.) If, for two consecutive sessions of the Parliament, he fails to give his attendance in the Senate ; (2.) If he takes an oath or makes a declaration or acknowledgment of allegiance, obedience, or adherence to a foreign power, or does an act Avhereby he becomes a subject or citizen, or entitled to the rights or privileges of a subject or citizen, of a foreign power ; (3.) If he is adjudged bankrupt or insolvent, or apphes for the l)enefit of any law relating to insolvent debtors, or becomes a public de- faulter ; (1.) If he is attainted of treason or convicted of felony or of any infamous crime ; (5.) If he ceases to be qualified in respect of property or of residence : provided, that a Senator shall I I' ':9 t Hiiiiiinoiis on vaciinoy in Sfimlc. Questions as to qiialifioations 1111(1 vacani'iis in Senate. Appointment of Speaker of Senate. Quorum of .Senate. Voting in Senate. Constitution of Ilonoc of Commons in Canada. 10 B.N.A. ACT, s. 32.— THE COMMONS. not be deemed to liave ceased to be qualified in respect of residence by reason only of his resid- ing at the seat of the Government of Canada, wliih; holding an office under that Government requiring his presence there. 32. Wh(in a A'acancy happens in the Senate by resig- nation, death, or otherwise, the Governor- General shall by summons to a lit and qualitied person, fill the A^acancy. 33. If any question arises respecting the qualification of a Senator or a vacancy in the Senate, the same shall be heard and determined l)y the Senate. 34. The Governor-Gencn-al may, from time to time, by instrument under the great seal of Canada, appoint a Senator to bo Speaker of the Senate, and may remove him and appoint another in his stead. 35. Until the Parliament of Canada otherwise pro- vides, the prc^sence of at least fifteen Senators, including the Speaker, shall be necessary to constitute a meeting of the Senate for the exercise of its powers. 36. Questions arising in the Senate shall be decided by a majority of voices, and the Speaker shall in all cases have a vote, and when the voices are equal tho decision shall be deemed to be in the negative. The House of Commons. 37. The House of Commons shall, subject to the pro- visions of this Act, consist of one liundred and eighty- one members,^ of whom eighty-two shall be elected for Ontario, sixty-five for Quebec, nineteen for Nova Scotia and fifteen for Netc Brnnsicick. ' Tncroased by tlie addition, iiiidor soe. 51, of the extra provincfB which have joiued the Union. B.N. A. ACT, s. 3S.— PARLIAMENTARY ELECTORS. 17 lalified in his resid- Canada, vernment hy rosiw- eral shall , fill thp ilification amc shall B to time, t, appoint ly remove wise pro- including \ meetinj; )o decided lall in all equal tho the pro- d eighty- ilected for )va Scotia in provmcuB 38. Tlu> Governor-General shall from time to time, SummoniDg ..f " Hou.se of in tlu> QiiccMi's name, hy instrument imder the great Commons, seal ol" Canada, summon and call together the House of Commons. 39. A Senator shall not ho capahle of being elected Seniitors not to "*^ _ . sit in the House or of sitting or voting as a member of the House of of Commons. Commons. 40. Until the Parliament of Canada otherwise pro- KiMtorai dis- ^^' ^ triets of the vidcs, Ontario, Quebec, Noca Scotia, and New Brunstoick I'our Provinces. shall, for the purposes of the election of members to servo in the House of Commons, be divided into elec- toral districts as follows : — 1. — Ontario. Ontario shall be divided into the counties, ridings of counties, cities, parts of cities, and towns enumerated ill the First Schedule to this Act, each whereof shall be , an electoral district, (nich such district as numbered in that Scheduh; being entitled to return one member. 2. — Quebec. Qnet)ec shall be divided into sixty-five electoral [districts, composed of the sixty-fiv(5 electoral divisions [into which Lower Canada is at the passing of this Act [divided under Chapter tvvo of the Consolidated Statutes tof Canada, Chapter seventy-five of the Consolidated iStatutes for Loirer Canada, and the Act of the province |of Canada of the twenty-third year of the Queen, !Ilui])ter one, or any other Act amending the same in force at the Union, so that each such electoral division fchall be for the purposes of this Act an electoral istrict entitled to return one member. 3. — Nova Scotia. Each of the eighteen counties of Noca Scotia shall 1)6 an electoral district. The county of Halifax shall >e entitled to return two members, and each of the ther counties one member. S 2340. B ' I 18 BN.A, ACT, H. 41— ELECTION PETITIONS. i'} 4. — New Brunswick. Eiich of the fourt(>on counties into whicli Noir Brunswick is divided, including" the eitv and county of *S7. John, shall be an electoral disti-ict. Tlu^ city of St, John shall also be a sej)arate electoral district. Each of those lifteen electoral districts shall l)e en- titled to return one member. continuanc. of ^j Until the Parliament of Cawrt^/^^ otherwise lu'o- cxifiting clip- _ _ ' twn laws until vidcs, all laws in forc(^ in the several provinces at th(> Canada other- Uuion relative to the folloAving matters or any of tluMu, wise provKies. j^jj^j^^^^jy^ — ^\y^ (jualitlcations and disqualifications of persons to l)e elected or to sit or vote as members of the House of Assembly or Legislative Asseml)y in the several provinces, the voters at elections of sucli mem- bers, the oaths to be taken by voters, the returniiiif officers, their powers and duties, the proceedings at elections, the periods during which elections may bo continued, the trial of controverted elections, and pro- ceedings incident thereto, the vacating of seats of mem- bers, and the execution of new writs in case of seats vacated otherwise than by dissoluticm, — shall rc^spcctively apply to elections of members to serve in tlu; House of Commons for the same several [)r()vinces.' Provided that, imtil the Parliament of Cmuida othcM'- wise provides, at any election foi' a member of the House of Commons for the disti-ict of Jhfoniu, in addition to persons qualified by the law of the jjroviiur of Canada to vote, evei'y male British subject, aged twenty-one years or upwards, being a householder, shall have a vote. Vauk I'. Lano- Lois, 1879. 'VAr,iN<-.LANGi.(»is,2H Oct. 1870, 3 S. V. K. I. In v. V. 13 I).c. 1H79 [pie.seiit. Lord St'lborno, Sir J. W. Colvile, Sir Barnes Pcaeocix, Sir M.E.Sniith.und Sir 1{. Collier], 5 App. Cas. 1 15; IS) L. J. P. C. 37 ; 4 1 L. T. (562. This was an applica- tion for special leave to appeal, luul an attack upon the Dominion Act, 37 Vict. c. 10., Trial of Election Petitions, which Act, inter alia, conferred power upon the Quelico Supci'ior Court to hear an election petition. Lord Selborne said : '* Their Lonl- shii>s liave carefully consi;isiati(Ui [.38 Vict. e. H."] which lias taken place in the colonv to uiakc a special ap[)lication to the Crown in such a ca.se for leave to ii[ipt'al ; and their Lordships have (k'cided on a former occasion [Min- ister of St. Andrews r. Johnston, \)w. U), 1H77, where all the ca.ses arc noted. See Wheeler's P. C. Law, !).J7 ; 3 Ap|). Cas. 15f); 37 L. T. ooG ; 20 W. «. 35!)] that a siHcial application of that kind should not be lightly or very easily <:iantc(l ; and that it is necessary to show both that the matter is one of iiiiportancc, and also that there is loaily n substantial question to be ilctcruiined. It has been aheadv said that their Lordships have no Vai.in v. Lano- doiilit about the importance of this '•'*"*' '^"'''• question, but tlie consideration of its importance and the natiu'e of tin.' question tell both ways. On the one hand, those considerations would undoubtedly make it right to permit an a{ipeal, if it were shown to their Loi-dshi|)S, prima facie, at all events, that there was a serious and a substantial question, re(iuiring to be di'termined. On the other hand, the .same considerations make it unfit and ine.vpedient to throw doubt upon a great (pu'stion of con- stitutional law in Canada, and ui)on a decision in the Court of Ap- peal there, uidess their Lordships are satislied that there is pritnd /(trie a serious and a suksttintial (piestion requiring to i»e determined. Their Lordships are not .satislied in this case that ther(> is any such (|uestion, inasmuch as they entertain no doubt that the decisions of the lower courts were correct. " It is not to be [)resunied that the Legislature of the Dominion lias exceeded it powers, unless upon grounds of a serious nature. In the present case, their Loi'dships find that the subject matter of this controver.sy, that is, the determina- tion of the way in which cpiestions of this nature are to be decich'd as to the \ali(lity of the returns of members to the (^anadian Parlia- ment, is, beyond all doui)t, placed within the authority and the legis- lative power of the Dominion Par- liament by the 41st section of the Act of 1H()7 ; iqion that point no controver.sy is raised. The contro- ver.sy is .solely whether the power which that Parliament possesses of making provision for the mode of determining such questions has been conn>etently or incompetently exercised. The only ground on which it is alleged to have been in- competently e.verci.sed is that by the 91st and 5)Und sections of the Act of 1807, which distribute legislative powers between the provincial and the dominion legi'^latures, the Do- minion Parliament is exclude»l B 2 U.N.A, ACT, H. 41— COURTS AND NEW DUTIES. ! • Valin v. Lanroccdure of the courts — shows that tli(> Dominion Legislature was throughout deuling with this as a new jurisdiction created by itself, although in many ca.ses adopting, as it wasconvtMiient that it should adopt, existing ina- ehinery. Therefore, their Lordshij)s see nothing but a nominal, a verbal, and an unsubstantial distinction between this latter Act, as to its principles, and those provisions of the former Act, which all the judges of all the courts in Canada, appa- rently without ditliculty, held to be hiwfiil and constitutional." His Lordship then referred to the allegation that some of the judges had declined to exercise this jurisdiction, and said nothing had been stated to lead their Lordships to apprehend that there is any real probidtility that any judge of the inferior courts will hereafter dis[)Ute their obligation to follow the ruling of the Supreme Court, unless and until it shall be reversed by Her Majesty in Council. " Under thcst- circumstances, their Lordships are not persuiuh'd that there is any reason to apprehend ditliculty or disturliance from leavinguntouehed the decision of the Court of Appeal. Their Lordships are not convinced that there is any reason to expect that any of the judges of the court Ik'Iow will act otherwise than in due subordination to the; appellate jin'isdiction, or refuse to follow the law as laid down by it." If, in- deed, there had been " produced in :|:l SI! m 22 B.N.A. ACT, ». 42— VACANCY IN UKPKESENTATION. Vaun r laso- llic iiiiiitis of iiny of their Lordships 1m' fjii'iiicd, mul that the |K'titioii 1.0IS, 1879. thmbtsof tiu'soutif Appciii, tlu'ir Lordships would lunc felt it tlicir (hity to advise Her Majesty to fjiaiit the leave wliieh is now asked for; liiit, on the eoiitiary, tile result of the whole arfjuuient has heeri to leave their Lordships under the impression that thei'e i« here no sulistantial stion at all to Ih' determined, and that it would he nnieh more likely to unsettle theniindsof Iler Majesty's sidijeels in the Dominion, and to distnri) in an inconvenient nnuuier the h><;is- lalixe and other jtroeeedinj^s there. Scr ('ana(l at the Union by the ollicers char<]fed w ith the returning? of writs for the election of members to serve in the same respective J louse of Assembly or Lei^islntivo Assembly. 43. In cas«' ji vacancy in the representation in /'c ] louse of Commons of any electoral district liaj)- j)ens before the meetinji; of the l*arlianu'nt, or after the meeting of the rarliament before provision is made by the i'arlijinient in tliis beliall', the provisions I I B.N.A. AC'l', s. 44.— THE SPEAKER. 23 of the last foregoing section of this Act shall extend and iipply to the issuing and returning of a writ in respect of such vacant district. 44. The House of Commons, on its first assembling after :i general election, shall proceed with all practicable speed to elect one of its members to be Speaker. 45. in case of a vacancy happening in the office of S])Oiiker by death, resignation or otherwise, the House of Coininons shall, with all practicable speed, proceed to elect another of its members to be Speaker. 46. Tlie Speaker shall preside ut all meetings of the llou.se of Commons. 47. Until tlie Parliament of Canada otherwise pro- vides, in cas(« of the absence for any reason of the Speaker from tiie chair of the House of Commons, for a piriod of forty-eight consecutive hours, the House may elect another of its members to act as Speaker, and the member so elected shall, during the con- tinuance of such absence of the Speaker, have and exeenU' all the powers, privileges and duties of Speaker. 48. The presence of at leart twenty members of the House of Commons shall be necessary to constitute a meeting of the House for the exercise of its powers ; and for that pur])ose the Speaker shall be reckoned as a memher. 49. Questions arisin;.- in the House of Commons shall be (l('ci(U'(l by a majority of voices other thjin that of the Speaker, and when the voices an? equal, but not other- wise, the Sj)eaker shall have a vote. 50. Every House of Commons shall continue for five U'ars from the day of the return of the writs for choos- iiii? the House (subject to be sooner dissolved by the Governor-General), and no longer. 51. On the completion of the census in the year om^ thoiisiind eight hniuhrd and seventy-one, and of each As to election of Speaker of House of CommuiiN. A.M to filling np Vftcaney in oflieo of 8^eiiker. Speaker to preside. Provisioi' ' 1 ease of :ivsoiice of .Speukf : . Quorum of House of CommonN. Voting in House c' Commons. Duration of House of Commons. Decennial re- a(\}U8tment of ropreflentatioD. 24 B.N.A. ACT, b. 52.— INCREASE OF MEMBERS. ■ii Increneo of number of llsuso of CommoiiH. subsequent decennial census, the representation of the four i)rovinccs shall be readjusted hy such authority, in such manner and from such time as the I'arlianuMit of Canada, from time to time, provides, subject and according to the following rules : — (1.) Quebec shall have the fixed number of sixty-five members ; (2.) There shall be assigned to eacli of the other })rovinces, such a number of members as will bear the same proportion to the numbcn" of its population (ascertained at su to the number of the aggregate population of Canada at the then last preceding re-adjustment of the num- ber of members for the })rovince is ascertained at the then latest census to be diminished l)y one-twentieth part or upwards ; (5.) 8uch re-adjustment shall not take effect until the termination of the then existing Parlia- ment. 52. The number of nuMnl)ers of the House of Com- mons may be, from time to time, increased by tin' l*arliament of Ganaila, provided the proiiortionate representation of the Provinces prescribed by this Act is not thereby disturbed. B.N.A. ACT, s. 53.— MONEY BILLS. 26 Money Votes. — Royal Assent. 53. Bills for aijuropriatins' any part of the public AppropriHtion „ . . r> J 1 ^ , „ and tux liills. revoiiue, or lor iniposing any tax or impost, shall originate in the House of Comiiious.' 54. It shall not bo lawful lor the House of Commons Rcoommendiv- to adopt or pass any vote, resolution, address or bill for vot"s? """"^ the api)ropriation of any i)Mrt of the public revenue, or of any tax or impost, to any jjurpose that has not been first recommended that House by message of the ' For the House of C'oimuous of tlic I'nitcil Kiiif^doni, it is flinincd Money Bills must ori<;iniite tliere- iii, iUHJ further, it is stiiee Sir Henea^e Fini-h's iin- xwcr, Com. .Jour., 22nd April U)71 ; 1 Han.sard, 4H0], wherein he thinks the Lords may alter a Money Bill; and that is, if tlu' Com- mons fjrant n tax for four years, and the Lonls alter it to less time, II!* for two years ; here, he says, the Bill need not lie sent back to the (.'onniions for their eoneiwreuce, liiit niny receive the Koynl Assent witlmiit further ceremony ; for this altcratiiiu of the Lords is consistent with the ffiiint of vhe Commons." Now the siune learned author says, " In any case where a Money Bill is reumuded to the Commons, nil amendments in the mode of taxation are sure to he rejected," and the Bill woidd 1m' introduced aj^ain in the Hou.se of Commons. But whether the Commons have this cxtrenu- [)rerojj;ative or not, the making of anu-nv till' (^iicell, tile Lieilteliaiit-Ciover- iior of a |)i-()viiiee is a|)[)(>iiite(!, not liy Her Majesty, hut hy tlie Gover- iioi'-(reiiefal, wlio has also the |)o\ver 111' (lisiiiissal, eaiiiiut he siieeesst'nlly iiscil lis an inference that tlie Ini- |ifriiil Legislature meant to vest in the piovinees of Canada the rifjlit uf rxcreisinj; supreme h'f^ishitive powers, in whleli the British sove- iviiin was to liave no share. Hut till' ai-t of the Governor-Cieiieral unit his Council in makin<; tlie ap- |Kiintnii-nt is, within the meanin<; lit' tilt' statute, the act of the Crown, and a Lieutenant-(io\t'rnor, wiien a|iiKpinte(l, is as much the fcpre- M'titalive of llei- Majesty, for ail |iuriK)scs of |trovincial j;ovei-nnient, as tlu' Uo\ernor-{ieneral himself is for nil pui'poses of Dominion <;o- vcrnuicnt. Maritime Hank of Canada r. Xew JJnmswii^k He- (civir-General, .July 2ml, 1H'.»2, [1H92] A.C. at p. 4i;{; ami helow, 17 & 20 S. C. H. ()57, G!)5. Sw sec. 61. ■SVf \otes to sees. 90 ami SKi hi a (|uestioii of precetleiiee of •imnrs Coiinwd, held the provinces wntd not fjive pi-eccdence over Queen's Counsel already appointed I'v the (iovernor-General. Lenoir '•■ Ritchie, Nov. 4th, 1S71>, ^^ S, C. R. 575. hiAii.ticii.of Canada i-.Att -Gen of Ontario [1H92],:U). A. H.O; 10 () \\. 17, it was aif^ned that a simi- lar jdirase was used, <;ivin statute, is to ajtpoint to tlic otlice, who thus liecomes the hentenant of the representative of tlie (^neen, and so may l)e said to lie an appiopriate holder of such prei'oj^atixe power as, in order to make tlie const itnt ion effieient, shouKI he exercised by the executive head of the pi'o\incc. And sec. (il oi-dains him to take- and snliserihe an oatli of allegiance similar to that taken hy the Goveriior-Goiieral. And hy sec. (tli, the Lieutenant-Goveinor is carry- ing on the government of a pro\ ince. ' See the case of Letelliei". Leggo'.s Lord Dufferin, [>. Go."}, states: "The Hon. Luc Letcllier tie St. Just, a member of the Senate, and a .strong supporter of Mackenzie's Government, was ap- pointed Lieutenant - Go\ernor of Quebec in 1H7(). The Legislative Assembly, Legislative Council, and the Ministry of that province were theu in antagonism to the l)o- nnnion Government. Mr. Letcllier thus found himself without any political sympathy either with the ministers or the representatives of the people, lu 187H he di»mibe>ed his advisers, thou<^h the nuijority of the Assembly was 20 in a Iiouh' of (J5, and in the upper house; two to one. 11 April, 1H7H, Sir Jolm Macdonald brought the niattt-r he- fore the Dominion I'arliament. lie said that the Lieutenant -tioxcr- nors of the different pro\ inces slodd precisely in the same position willi respect to the Governor-Generiii and his Cabinet as th(; Governor- General stands in respect to thi' Queen and her Cabinet, and if that he admitted tiien it must ln' held the I'arliament of the Do- minion of Canada has a super\ i.siuii of the ..cts of the Lieutenant- Governors Every Governor of a colony in tiie J3ritish Empire was liable to have his conduct discussed in the liriti.sh I'arliament. Gover- nor Eyre, 181 Hansard lOCit, 17G3, 'we his trial, 18GH, iuid charge of Black burn, J . ; GoveiiKir Darling's case, 191 Hansard 1!)0.3; and the case of Mr. I'ope lleii- ncsay. Governor of Mauritius. Eiul Grey, on Representative Govern- ments, said, p. 340: "But there was this most important differencr between a colonial Governor and an English sovereign of the houses of Plant«genet or Tudor, that llio former was lesponsible to a distant and generally impaitial authority, to which the colonists could always appeal to relieve them from a B.N.A. ACT, s. 59— VIEWS OF LIErT.-GOVERNOR. 29 ffovt'vnor wlio nliuscd liis power. Till' ("I'own could rooiill iiny};ovor- nor wlio fiiilcd in the dischiirffi' of his duties, and if it rofusod to do so on ii \vfll-<('(l except for {^rave causes, but tliat llic fact lliat the [lolitical opinions of a Ijieiilenant-dovcrnor had not lieen (hn'in<; his former career in accordance with tliose hehl by any Dominion ministiy wlio mi<;iit lia,/pen to succeed tt) ])ower (luriiifi; his term of office wouhl afford no reason for its exerci.se." The Dominion Ministry retained tlieir ori><;inial opinion, and l>y Onh-r in Coinieii, 25 July 1H7!», it was rcsolxed tiiat it was expedient Ml'. Ijcteilier siioidd lie removed, tile cau.se assijjiied lieiiif; lliat after tile Notes of tlie I (oust! of Com- mons diiriii}^ tlie last session, and tliat of till' Senate diirinjf the prt'.sent, his usefulness as a liieii- tenant-(io\('riiorwas of my ollieial relations with your pulilie men is the ]'arlinniciit of Canada. ! be- lieve in Parliament, no matter which way it votes ; and to those men alone wlinni the deliberiile will of tlu! Confederate Parliament of Ciinada may assifjii to nie as my responsible advi.sers, can I give mv Cdiilideiice. Whether they aio heads of this party, or of that parly, must be a matter of iiidifrerenee in the (Jovernor-tieiieral ; so loiii; as they are niaiiit4iiiiewi,k. Act, continue as it exists at the Union, until altered under the authority of this Act.' 1 Till' Dominion and provinces liiivr ('o-i>r(linat(> aiitliority within tlii'ir ii'siH'ctivcsplicrcs, liotli Itcinf^ Milijt'cl Idtiic Impel iiil Parliament. 'I'lii' (|U('sti(>n in Maritime Hani^ of ('aMiidii /•. New hrunswiek Ke- (rivcr (icneral, Julv 2, [18!)2] A. ('. 1:57; (il L. .i. P. C. 7o ; ()7 L. T. 12(i ; reported lielow 17 iV 2(1 S. C. U. ()57, (I!)."). wiictiici' the Provineial (lov- ciiiiafiit were eutith'd to pavmeiit III lull over the oilier depositors and >iiiiple eoiitraet ei'editors of the liiiiik. When the hank slo|)pe(l pay- iiiciil, 1S!^7, the I'rovineiid Goverii- iiii'iit was a simple eoiilraet ereditor lor S.'io.lMK), heiiijr piihlie money ol" llic IHovilice deposited in the name of till' l!irciver-({eiierid. Tiie l{c- cfivi'i-lieiieral claimed payment in lull as icpn'senting Jler Miijesty. 'I'lic Jiidieinl (."omniitleo (tltroiij;ii hold Watson) held that the effect of the Doiniiiion Ai-t was not to sever all coiiiiection l)etwe«'n the Crown iiiiil the piovineos. 'J'he Act of lHti7 nowhere professes "to curtail ill anv respect the ri<;hts and privi- Ifjics of the Crown, or to disturl> ibc lelatioiis then siiiisistino; hc- iwoi'ii tile so\erei<;ii and the pro- \im.rs. Tile oliject of the Act was iii-itlier to weld the provinces into line, nor to suhordinate i)roviiiciul },'ovpriiiiiciits to a central authority, liiit to create u federal government m which they sbouhl all he repre- sented, enlrnsted with the exclusive Maiotimf. administiaiion of affairs in which I>^^k "' v e. Xkav they had a common interest, each province retaining its independence and autonomy." '• The prerogative of the C^ueeii, when it has not heen expressly limited hy local law or statute, is as extensive in Her Majesty's Colonial possessions as in (ilrcat Hritain. And the Crown as a simple contract crediloi' for puhlic moneys of the province de- posited with the hank was entitled to priority o\er other creditors of cipial degree." 'J'liis decision allirmed Heg v. Hank of Nova Scotia [11 S. C. K. IJ. In K.xciiANdK U.vNK (U' Canada r. TiiK QiKKX [from (^). H. Qnehcc] Fel.riiary IS, issti, U App. 157; 00 L. .1. P. Co, 54 L. T. H()2; and Ih'Iow, 1 Mon. li. H. ;i02, the result was diffe- rent, hccaii.se in the province of Quebec the prerogative of the Crown is limited liy the two Codes (the Civil Protediirt; Code and the Civil Code) to the case of the com- mon deiilor lieing an officer liahle to account to tln^ Crown for puhlic moneys collected oi' held \>\ him. And therefore, in that case, the Privy Council reversed the judg- ment of the Court below, and negatived the preference claimed by the Dominion Cio\ernment. Sie sub-sec. 13, sec. 92, tor full report. JtlUNSWUK JU'.C. (iF.NKIIAl.. Kxi II VNOK 1!ank or Canada c. Tin: (ill'.KN. h '1 mmm t-'tr'ii'mtfHf'fi ;i Poweru lo bo ex«rci8('il liy Liutitciimit- Ouvonior of Oiitiii'io or (JulIji'C witli mlvice or alone. Att.Oen. OK Ql-F.IIKC V. Rred. 32 UNA. ACT, s. f.o— PREROGATIVE OF THE CROWN 65. All i)o\V(M's, autlioritios, and I'linctions wliioli, under any Act of the rai-lianicnt of (Irpnf lirifoin, or ol' the Parliament of Hit* U/ii/ctf /\iii(/ctivt ly with the advice, or with the advice and consent of, or in conjunction with, the resjiective Executive Councils or anv members thereof, or by the Lieutenant-Govi'rnor individuallv, as the case requires, subject, neverthekss (except with respect to such as exist under Acts of the ParHament of ( I root Britain, or of th'' Parliament of the United Kingdom of Great Britain and Ireland), to be abolished or altered by the respective Legislatures of Ontario and Quet)ec. ' Sec spc's. II, G5. The Doiiiiiiioii Aft iliil not liiko awiiy the |)r('ro;^ntivf ul' the Crown in any of tlie in'ovinccs. ^Iiiiitinic Wank of Canailii r. New Hnniswiek Receiver-General, Jiiiv 2, [1S!)2] A. C. 437; (Jl L. J. P. C. 75; 07 L. T. 120; anil below 17 & 20 S. C. R. 057,0{)5. But in tlie proviiico of Qiiebee the prerogative of tiie Crown to ineferahle puynient out of common debtors' estate is limi- ted bv the olil French law in that province to thecnse of the common debtor bein|iiioii or iilteration liv tlie lt'>|)eeli\(' le<;islatnres of (ilitiirio mill (^ilel)ee, with the ex- (•(•pliitli, iif eoiirse, of wliiit (le[H'n- (IciliHi liiiperiiil leirislalioii. \\ hnl- I'M'i' ji'ivvei's of that kind existed, till' Act with which their Lordships iiiiM'tii deal neither aholislies nor iilici's tlieiii. it does not refer to tiii'iii in any manner whatever. It i^ s.iiil that, anionjjst those powers , ihcif was a power, not taken away, t(i liiy ta\is ol this \ery kind npon liiriij |pr(ieeediiii^s in the Conrts, iiot for the {{enei'ai revenne piir- piises (il the jiroN iiiee, lint for liie |iiii'|ii>'-i' iif loriniiji; a special fund, (ullril 'The |{iiil ciinnected with the ad- liiiliiisti'iition of jnsliee. What has |1m'('I1 done liere in quite u ditt'erent ftliiiif;. 1 1 is not hy the authority of (till' Liciiicnant-Oovei-nor in ("onn- 1 I It is mil in aid of the ]inildin<; iiii'l .liny I'liiid. It is a lej^isla- l.i act without any reference iwliMiivcr ti) those powers, if they ktill exist, ipuie eoUateral to them ; IriiiI it' tlie\ still exist, and if it still gliil I'xi-tN itself, c;i|)alile of lieinjj xiicImiI concurrently with thein; Lixlortliep-neral pnrpusesof the nniiire, and in aid of the ;reneral vi'iiiic, iliese Icf^al pnu'ccdini^s. t ai)|Kiirs to their Lordships that iili^^ i( can he jnstitied under r. 1)2 of the H. M A. Act, 1HU7, it riiiiiiol he justilied under the "olli." [For lirst part of this iiiljliiii'iit sec suh.-sec. 1-1, see. !)2.J t IS III he presumed that the L»!- iiturc iliHis not intend to deprive ifl'iowii of any prerogutivt! uidess I'xprtsses its intention to do .so ixplicif terms, or nmkes the fi'iciice invsistilile. Wilson r. Itrkley, l>low, 223 ; Hex r. Cook, T. K. 519; Att.-Gen. c. New- 8 2340. iniin, 1 Frioe 1,3H ; Att.-Oen. i*. Arr.-Qm. or Mertiimd, L. U. i P. (!. 520; Quebec v. Hej:. r. David.son, Ul V. V. (j. U. '*"'°' 11 i Ue},'. r. Anars, 12 U.C. t^. B. 'Aitl. Seetion 1 of (^iiehce Act, IHHU, e. S)H., declared that "The Fiieuleiiant-tiovernor, or person ad- ininisleriiifj the ^;o\ernment of the province, was a eiu-poratinn sole." The Minislei-of .Instiee, 22 March 1HH7, reported this .section is tuKen from the Con. Sta. Canada c. 10. s. 1, which may possilily be untler sec. (m of the" H. N. A. Act in force in (JucImc in respect of the ollice of Lieutenant - Uoveruor. The provision is clearly one that relates to the ollice of Lienteinint- tiovernor, and as such is with- drawn from the lefi;islative author- ity of the Le}j;islature of (^uehec liy the {)2nd section. In .Janmiry lHiS7, an Act passed by the pro- vince! of Manitol a respectinj; the (!o\ernor-(ieneral and hisdejiuties was disallowiMl on tlui groiiml that it was not within the legislative authority of the Manitoba Legis- lature. AVrProv. Leg. 1887, p. 25. Ill IlEii. r. TiiK Amkhs, Feb. Reo. u. The 2;{, 1878, 12 V. C. Q. U. 3i>l, '^*"'"^- where minierous cases are cited on the [iierogative of the Crown, Harrison, CI., said: "The pre- rogative as to the issue of special commissions of Oyer and Terminer anddeneral liaol Delivery exists iu all its integrity in the ca.se of what aie now known as the unorgani.sed tracks m- provisional judicial dis- tricts. The exercise of the |)ower by the tiovcrnor-tjieneral of the iJominion, or by the Lieutenant- (Jovernor of the provinces, is not in- consistent either witli suli-see. 27, .sec. 91, or sub-sec. 11 of .sec. 92 of the H. N. A. Act. 1 he lirst em- powers the Legislati.re of the Do- minion to imike law.-* in relation to the criminal law, except the con- stitution of the courts of criminal jurisdiction, but iiu'ludiii{; the pro- cedure in crimii;al matters. The second empowers the Legislature of the province to uuko lawa iu fi 34 B.N.A. ACT, s. 06— DEPUTY GOVTiRNOR. Rdo. v. Tub relation to thu udiiiiiiistrutiun ul' '^•'■**- justict' ill thu pidx iiici's, iiicliulinj^ tli(> i-uiiHtitiitioii, inaiiitt>iiiiti<'<>, ami (ii'^niiisiitiuii of |)r(j\ iiirial cuiirts, liolli (if civil and criminal jiiiiMlic- linn, and iiiclndin<; iH'oi-rdnrc in civil matters in llicsc i-onrts. iint nt'itlu'i' Ijcffislalnrc has as yet ut- tcmptt'd to intrrlt'iv with the |>n!- i'(><;ati\c as tu special commissions in the cas4' ol' the nnoi'pinised Ir.utis of eonntry or provisional jndicial districts, and when eithei' Legislatnrt! shall attempt to do so it will hi' tinu' enonj^h to decide which, under the IJ. N. A. Acl,iias the power to do so. There still of remains tht (pjeslion as to where, since confedeiatinn, the preroj^ative power exists. [His Loi'dship read sec. 5) of the B. N. A. Act.] The power, hciiif^a prert)<;alive one, can only he exercised by tlu' (^ueen or her representatives. The Go- vernor- (J enend of Canachi is the only executive ollicer provided for liy the Act who answers this de- scription. The Act, however, hy sec. 14, makes it lawful for the Queen, if she sees tit, to auth(H'i7.(! the Governor-(ien»'ral from time to time to appoint any pcM'sou or persons, jointly or severally, to he licr de|>ufv or deputies within anv •|> part or pa that capacity to exerei.se duriu": the I'rivv C'oinicil cannot 'I ts of C'anndii, ami in nor-General of Canada, and us llaii is no statement to the contrary in the case, [ must assiune that llic (jueen has autliori/ed the appoint- ment of a l)e|iuty Governor, luuj that the prcroer autlioritv " And his liordsliip held that tin' Crown by prero<;ative ri};ht could issue a commi.ssion to a jiiil<;i' of the provisional judicial district of .VI<;onia to hold a court of Oyer and Terminer and (ierunil Gaol Delivery for trial of felonies It is said the CaiUMliau Act, .')! Vict. c. t.S.s. "} — " Xotwithstandih;' any prero<^afive, or anythin<; con- tained in 'The Interpretation Ail' or in ' The Supreme and Kx- che(pier Coints Act,' no ajUKal shall h(^ brou<;ht in any eriminiil case from any judf;ment or ordir of any court in Canada to anv coiut of ap|)eal or authority, 1» which iu the United Kin<;doin )i|i- peals or petitions to Her Majcslv | in Council may be heard," — iIih> away with any appeal to the I'livi Council in criminal cases, luit ii | does iu)t seem quite correct to siv ipac the pleasure of the (Jovernor- (ienerid such of the |)owers, author- ities, and functions of the Gover- nor-(ieneral as the Governor- General deems it necessarv or )r expedient to assign to him < them, sid>jeet to any limitations or directions expresslv j;iven by the I Tl H> connmsMon issuei Queen by the Dominion (lovernment is tested in the name of the Hon. W. J}. Richards, Deputy of the Gover- hear an appeal from a coin ictidn | in Canada for iniirder. Can tinv Act but an Imperial Act take nvvjy the preropointinc," Jle there- fore reconnncinlei', 'J2 March 1HH7; that the lOth section of the (Quebec Act, 1!) Vict. c. .'{I., be auiended so as to shew clearly that the IjCj^islature intendid the eiiai Inient to be " subject to the exercise by tilt (iovernor-dcneral of the Koyal |)reroj;alivc." I'rovini'ial Iji'uis- latioh, 1HS^<. pj). lio-.'iti. Ibil on a reconsideration, )(> Jidy 1SH7. the Minister of Justice | TiiouipsouJ ullo\';'d the Act to bc.oinc opera- tive, tho.;e members of ihc llai nho I'll a^jjjrii veil to seek their remedy at law. ['<(■(' Note. pp. 7, 11.] ' Svf sec. II. In c.r juirlv ('. A. Dansrreau, 17 Feb. 1H7.'), 11) L. ('. J. 210, it was hchl (1) that the Li j^islative As.senibly of the proviiicc of Quebec has power to co'upel the attendance of witnesses b -for ■ ii, ;\!id nui\ order a witness t(i Im taki 'i into <'Uslody by tl abandoricd that they could slill commit for contempt, Sanborn, .1 , in that ca.se said (p. 23H) : " Wliiii. (ver |>owers and innnunities nt- laclied to the Iie;;islative Asscm. biy of tla' late province' of Lower Canada and the !jef^islati\e Asscm. Illy of the late province of CaimiLi a.s were necessarily incident to ilir proi)ei' exercise of thcii" fuiiciion- as le<;islative bodies, attach to til'' liC ;;islative Asvcnibly of the piv- sent prov ince of Quclwc. 'I'liv .Senate of the Dominion or tin- Legislative Council of thepr<)\iiii> cannot claim the judicial powcix.: the liiiuseof liords, and yet tlni. aie uiany judicial powers In l> cxcrciseil in cuiiiie<'lion with li;'.i- tion, the depository of which tiiiM be .sona'where. Fo: example, jiri- diction o\cr divorce is j;iven In il« Feileral Parliament. It lao Imvii thought necessary to assume jMiwir , to examine witr « i Imp. 31 & ;{.■) Vicl. c. K\.\ iUiJ determine the matter jud'iiiiil). thou;;li neither House h:id j,'iiiil'r powers than the ( 'ommoii^ lhiii>< of ;hc I'niled Kin;ryi • lit gif-lativa l)v instrument under the gnuit seal oi Quebec, appoint coimcii. a member of the Legislative Council of Quebec to be Speaker thereof, and may remove him and appoint another in his stead. 78. Until the Legislaturt; of Quebec otb«'r\vise i)ro- 1^ ""■"»" "' , , Lc gi-lativo vides, the presence ol at l(>ast ten meml)ers ol the council. Lei voices, and < "imcii. the Speaker sha'l in all ca.ses have a vote, and when lalioii. It liiis l)y implicati;)ii, liy iiNipc, Mild h\ II I'oiistitiitioti iuo(ii4ic,l upon the KiihIImIi II(iii>-<' I ul Cuinnioiis, aJKo an iii(|iiisiti)i'iai I power to nmUi' it.sclt' ac(|uaiiitei! i tn iiicims ol' I'onituittt ON of tin- I nwls of iheprovinctMind tin- cvIIh ihiit I'xi.'it in fUK'ii'lv ov«'r wliirli it fill" loiitrol, in ordoi to l»>ji;islatr I mldli^'piiU^ and ndmininter wiwiy. Till' appointiiHiit of < oiniiiitttH's of iiKpiiry lor purposes of lliis natun> is iiu'iilriit to till' cxistciuT and pi()|M'i" woikiiifi; of t\( iv ligi~lali\t' i»od_v. It is a.s.sofiiit<' Hiitisli pysteiu, i>nd lias lieeu exer- cised without (]iiestion in all our Purlianieutftrx liiHtory as a pro- viuce." .1 1 1 i1 li m I 1 1 III 1 1 • i i ■ 1 Constitution of LcgislHtiTc Asfiembly (if Quoboc, First session of Legiglature8. Summoning of Legislittiru Assemblies. Restriction on elootiop of hnldcpH of offices. 88 B.N.A. ACT, s. 80.— iHE LEGISLATURES. the voices ar(^ equal the decision shall be deemed to be in the negative. 80. The Legislative Assembly of Quebec shall be C()mpos(>(l of sixty- live members, to be elected to repro- sent the .sixty-five electcn'al divi.sions or district^ of Lower Canada in this Act referred to, subject to altemtion thenM)f by the Legislature of Quohec : Pro. vided that it shall not be lawful to i)resent to tlic Lieutenant-Ciovernor of Qttrhfo for assent any Bill for altering the limits of any of tin* (electoral divisions or districts mentioned in the Second Schedule to this Act, unless the second and third readings of such Hill have been passed in the liCgislative A.ssembly with the concurrence of the majority of the members repre- senting all those electoral divisiojis or districts, and the assent shall not be given to such liill unless an address has been presented bv the Legislative Assemhlv to the Lieutenant-Governor stating that it has been so passed. 3. — Ontario and Quebec. 81. The Legislatures of Ontario and Quebec respec- tively shall be ttillcd together not hiter than six months after the Union. 82. The Licnitenant-Governor of Ontario and of Quebec shall from time to time, in the Queen's na'.nc, by instrument under the great seal of the province, summon and call together the Legislativt; A8send)ly of the province. 83. Until the Legislature of Ontario or of Queltec otherwis(« providers, a persor. accepting or noMing in Ontario or in Quebec any oHic«', commission, or cm- pIoym-Mit, permanent or temporary, at the nomination of the Lieutenant-Governor, to which an animal salary, or any lee, allowance, emolument, or jirolit of any kind or amount whatever from the province is at- tached, shall not be eligible as a member of the Legis- lative Assembly of the respective^ province, nor shall he sit or vote as .such ; but iiMlhing in this section B.N,A. ACT, w. 84— RE-ELECTION. 39 shall make ineligible any person being a member of he Executive Council of the resjx'ctive province, or hol(linf5 any of the following ofhces tliat is to say, the ollicos of .Vttorney-Goneral, Seeretiiry antl Eeyistrar of the province, Treasurer of the province, Commissione'- of Crown Lands, and Conunis.sioner of Agriculture and Pul)lie Works, and in Quebec Solicitor-General, or shall disqualify liini to sit or vote in the House for M'liich he is elected, provided he is elected while holding such ofhce. 84. Until the Legislatures of Ontario and Quebec Continuance of respectively otherwise provide, all laws, which at the Uon laws, 'nil are in force in those ])rovinces respectively, ivtative to the following matters or any of them, imiuely, — the qualilieations and discjualifications of per- sons to he <'leoi(>d (U' to sit ov vote as members of the Assembly of Ctniada, the qualifications or disqualifica- tions ' '■ voters, the oaths to be taken ])y voters, the ivturniu;. ^,flic(*rs, their powers and duties, the pro- ceed ii 4s a: elections, the periods during which such elections is. ly be continued, and the trial of contro- verted elections and the })roceedii.gs incident theretc, the vacating of the seats of nunubers, and the issuing and I'xecution of lu'w writs in case of seats vacated otherwise than by dissolution — shall respectively apply to elections of members to serve in the respective Legislative Assemblies of Ontario and Qnebec :^ Provided that, until the Legislature of Ontario other- wise ])rovi(les, at any election for a member cf the Legislative Asscmblv of Ontario for the district of AUjoiiHi, in ydJitioJi to persons qualified by the law of the province of Canada to vote, every male British suhject, aged tw(Mity-one years or upwards, being a householder, shall have a vote. 85. Every Ledslative Assembly of Ontario nmX every puntionof Lcuislative Assembly of Quel)ec shall contmue for tour A«sembiie8. ' In 'I'liKBRitoE c. Lanpky, ^111'. ('. (i., 20 Mitv IS7«; Nov. ". lH7fi. 2 App. Cflf.. 102 ; 4(i Ii. J. P. C. I ; an L. T. 640. nil Thkbkww f. np)M>nl Ironi tm- dtuision ot the pm- [MTior <'Ourt holding the npiu'lUnl ' Yearly session of LegiHiature. Speaker, Quorum, &,>', r 'I i i IIEDEaOK t'. Landrt. 40 B.N.A. ACT, 8. 86— CORRUPT PRACTICES. vears from the dav of the return of the writs for choosing the same, (suhjoct ncn'crthelcss to either the Legislative AssiMnl)ly of Ontario or the Legislative Assembly of Qiiobec Iv'ing sooner dissolved by the Lieutenant-Governor of the province), and no longer. 86. There shall l)e « session of the Legislature of Ontario and of that of Quebec once at least in evciT year, so that twelve months shall not intervene be- tween the last sitting of the Legislature in each pro- vince in one session and its iirst sitting in the next session. 87. Th(» following provisions of this Act respcictiiig the House of Ccmmons of (kiuada shall extend and apply to the lu^gislative Assemblies ol" Ontario and Quebec, tliac is to say, — tlie provisions relating to the election of a Speaker originally, and on vacancies, tiie duties of the Speaker, the absence of the Speaker, the quornm, and tue mode of voting, as if tliose pro- visions W(;re Jiero re-enacted and made applicable in terms to eacii such Legislative Assembly. guilty of ccrniptioii, and in wliidi tlio Juiiici.il C'oininittct' [Loi'd Cairns, L.V., pii'sidiiig] thai tin y liad no |)(>\V(>i- to^^ranl an ii|)|H'al,as in suuli an action as an i-lt'ction peti- tion tliciT was no prerogative ol' the Crown to allow an appeal, it was, however, .'ii-gned liy Air. Heri- janiin. that inasniiu,-li as the jndge had found the ap|)ellaiit persimally guilty of eorrupl practices, and that SPc. 2(57 of the t^uel)ec Controverted Elections Act [.'JH Vict. e. 8. Quebec Stjitules]|)n)videdthHt,if il is proved that I'orrupt practices have heen committed hy, or wi\\\ the actual knowledge or consent of, any candi- date, not only the election shall l)e void, hut the candidate shall, during the Hcven year.s next alter the dale of .such decision, l>c ineapahle of heiug elected to and of sitting in the Legislative Assembly, of voting at any 'flection of a meui- her of the House, or holding nri otlice in the nominationof theCoiiii. cil of the Lieutenant - (lovenuir of the province ; and that tht' .\(i ()f I'arliainenl, so far as it engrjiftol on the decision of the judge tlii> declaration of incapacity, was iilln vires of the powers of the legi^lii- tiu-e of the province. Lord Ciiirn< .sail! : "Upon that point their IjohI- ships do not think il n( cessarv Id express any opinion whatever, if the Act of Parliament was iii tlii> respect, as contended, tif/ra rirff thi' provincial legislature, the milv r.'sult will he that the consi'- TT TO PKOVMNCIAL BILLS. " 41 4. — Nova Scotia and Neio Brunsicick. 88. The constitution of the Legislature of each of Constitutions ° , of Legisliitures the provinces of Nova Scotia and New Brunswick of Novh stotia shall, subject to the provisioiis of this Act, continue Wunswick. as it exists at the Union until altered under the autho- rity of this Act; and the House of Assembly ui New Brunswick existini^ at the passing of this Act shall, unless sooner dissolved, continue for the period for which it was elected. 5. — Ontario, Qnehec, and Nova Scotia. 89. Each cf the Lieutenant-Governors of Ontario, i irst elections. Quebec, and Nova Scotia shall cause writs to be issued for the first election of members of the Legislative Assembly thereof, in such form and by sucK person as he think? fit and at such time and address to such returning officer as the Governor-General directs, and so that the first election of member of Assembly for any electoral district or any subdivision thereof, shall be held at the i,ame time and at the same places as the election for a member to serve in the House of Commons of Canada for that electoral district. 6. — The Four Provinces. 90. The following: provisions of this Act respecting ArrHofttion to ' ' . . Legislatures of the I'arlianuMit of Canada, namely, — the provisions re- vroviMons lating to a})proj)riati()n and tax bills, the reconimenda- money votes, tion of money votes, the assent to bills, the disallowance; *"^' of Acts, and the sij^nitieation of pleasure on bills re- served — shall extend and ajiply to the Legislatures of the several provinces, as if those provisions were here re-enacted ard made api)licablt; in terms to the respec- tive provinces and the Legislatures thereof, with the substitution of tlu' Lieutenant-Governor of the province for the Governor-General, of the Governor-General' for ' The tiowor f>f iliwillowimct' is vested in Her Mujosty 1))' Sfca. i> here votoil in the Governor- 56 and 57, that Ih, in tlie Queen in Oencral, ir the same mHnn'»ra.s the (^ouneil. p^wer (if aiwent or disttUowance urn . Ui lui m p il 42 B.N. A. ACT, K. 90.— DISALLOWING BILLS. !l the Queen and for a ^ecrjtary of State, of one year ' for two years, and of the Province for Canada. ' If notice of Govpinor-Ocnc- rnl's n.ssont to a provincial Act i.s not received witliin a year of its pre- sentation, and the Iiientenant-(}o- vcrnor's aMseiit is also not received, the Attorne_v-(lencral of Prince Edward Island was ;a pro- vincial oliject, the Acts arc within the competence and jurisdiction of the iirovincial lejjinlatnrcs. Snch beinj^ the ca.se, the Lieutenant- Governor oujjht not to have rcser- vrfl these Acts. Under the system of goveriiincnt that olilains in Kiif^- Innd, as well as in the Dominion nnd its several provinces, it is the duty of the advisers of the e.\ecnfi\( to recommend every measure that has passed the le<;islature for t' ;> executive a.ssent. 'I'lie ])r;u tii' accept the decision of the Icitisln- ture, and adxise the passjif^e of tlii' Bill." " It then rests with the (io- xcrnor-Genernl or the Lientenaiit- (fovernor, as the case may lie, tn consider whether tie Vet contlicts with his instruc '■ IS or his diifyns an ImpiM'ial or a Dominion otlicer, and if it docs so conflict he is hoiuKl to reserve it,whaleverthead\ iceteii- dered to him may he, liut if not, he will doulitless feel it his duty to give hisas.sent in accordance with ad\icc to that effect, which it was the duly of his Ministers to give." He then .said the Acts were within the coiii- petence of the Ontario Legislature. Prov. Leg., 188(5, p. !)()7. On 11th March 18(>}), theGover- nor-OeiHM'id wrote to Lord Grati- ville. Secretary of State : " Previous to the union of the pro\ inces, the Ciovernor ol each pro\ince either assented to or withheld Her Majes- t\'snss«M(l to, or rescr\ed for Hei Majesty's asst-nt, such Bills passed liy the legislnlurc as he thought jiro- per, and he was especially enjoined liy the H( \al instru<'tions to reserve certain classes of BilK therein speci- fied. The same jiracticc is .ontiiuied liy the I'^nion Act with i-cspect to legishition of the Parliament of Canada. The Act pio\ ides tliai the Licutenant-GoNernor of encli pro\inec may reser\c Bills foi' the consideration of the Goveriwir- Oeneral, lint there in no pro\ i-ioii l>y which the lattei' is to lake Her Majesty's pleasuie on such Icgislii tion. The Royal instruciions ao- silent on this jmint. In I'.ie ahsoncr of instructions, I a.ssinne tlint I sbouiti exercise the power of assent B.N.A. ACT, B. 91. -DOMINION POWERS. 43 to, or reservation of, Bills under the advice of the Privy Council of tiiis Dominion." On 8th May 1S(>!), Earl Gran- ville wrote to the Governor-Genoral of Ciiimda (Sir John Yonni;) : " The |)ruliii)itions in the seviuitii para- gnipli of the Royal instructions, with one quaiiticafion, rest on grounds of Imperial poli('y, and, therefore, the Governor-Oencral of tiie Dominion is not at liberty, oven (III the ad\ ice of his Ministers, to sjiiietioii or assent to any proxincial liiw in violation of them. He would, imleed, he hound to instruct the Lieutenant-Governor ot the pro- vince not to {jive such as.st-nt. "With rcfjard to the -ecoiul point, if tiie Governor-Ciriieral were advised hy his Ministers to distdlow niiy provincial Act a.s iHcgid or un- constitutional, it would in general li(> Ills duty to follow that advice, whether or not he concurrt'd in their opinion. If he were advis«'d hv his Ministers to .sanction any Act wiiich appearetl to him illegal, it would he his duty to withhoM his sanction and refer the question to the Secretary of Stiite for instruc- tions. The .same course might he tjiken if the Act recommended for sanction hy his Ministers ap- peared gravely unconstitutional, lint it is inipossilde to relieve the (Jovcrnor-General from the duty of judging, with respect to each par- ticular case, whether tlie objection to an Act, not of doubtful legality, is sutliciently gra\»' as, undei- all circumstiuices, to warrant a refu.sal to act at once on the advice ten- dered to him. W ith regard to your riMuark tiiat it is wortiiy of consider- ation whether it would not Im' exp«'- dient to establish a tribunal for the decision of all questions of constitu- tionaUawandcoidlict of jurisdiction, I see no reason for the c.stal)lishmeut of such a tribunal. Any (pie.stion of this kind could lH'enterti>"ned and decided by the local courts, subject to an appeal to tlu* .lutlicial Com- mittee of the Privy Council, and It does not aj)pear in what re- spect this mo;iil)jcct -matter is of come w'thin one or more of the L'Ukiok St. ''"■«' or piivnle nature, " the «««» classes of the subjects specially Jacques e. ■' on the" prrson ..llepii.g the pro- ••■""'"^••"t';-src. 29 is hero printed. L'Uniok St. Jacques v. Belisle. B.N. A. ACT, s. 91.— THE SCHEME OF a..s. 91, 92. section, it is horoby doclanHl that (notwithstanding anytlnng in this Act) ' the exclusive leglshitivc uu- thority of the; Parliament oi' Canada (extends to all matters comini^ within tlu; classes oF subjc^cls next hereinafter enumt!rat(Hl ; that is to say, — [see page 52.] [Sub-sec. 2J). — Such classes of subjects as an; expressly excepted in the enumeration of the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces. And any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within tlie class of matters of a loctil or private naturt; comprised in the; enumeration of tlu; classes of subjects by this Act assigned exclusively to the Legisla- tures of the provinces.] L. U. (5 P. V. 31; 31 L. T. Ill; 22 W. R. 933. Hix Lonlslii|) also suit! tlicrc, " Tiu' sciiciiif ol' the 91st aiiii 92ii(l sees, is tliis. By tlif 91st sec. some uiuttor.s — and tlu'ir Iior ('(im|)i'll>tl tt) at't't'pt a I't'tliit't'il pay- iiit'iit],^l'<"iltl tiu'n'iipoii,«7«w_/«('/f), fall luiiliT tlii^ Ifgal udiiiini.stration ill limii{i'iiptcy or insolvt'iiey, Lt)rtl Si|l)i)nie saitl, in ri'l^iiioti St. ,lm'i|iii's dt' Montreal c. Helisle, in court i)t'lt)w liO L. C. J. 21), in P. 0. .IiilyS.lH7i,L.H.(JP.('.;}7,"Tlu'ir Loiilsliips are not prepiirctl tt» say, if liny siit'li law as that hiul httcii |)ass(Ml l>y (he Dominion lii'f^islatiire, il wdiilil have been lieyonti tiieir i''iin|ii'teiicy ; iitir that, it' il hatl heen rsonally guilty of eor- rii|il practices ; hut Mr. Beiijaiiiin iir;^iii'(l, .sccontllv, even if an appeal -liiiiiM not Im' adinittetl <;enera!ly, iliat the Act in que.'«tioii, the 'AH Vict. c. H. [Quebec .statute], so fur Hs it by .sfc, 2t)7 eii<^rai'ted on lilt' tlccisitin t)t the jiulf^e a tleelara- liuii of int!apacity for seven year.s ti) Ik- elt'ctetl or to \ ote, etc., ftir a iiicmiici of the Lff^islalivt' Asseni- lily, was ultra rinx tiie Quebec Lcf^islatiire. Tiit! Quebec Legisla- Iiiic have no power to pass any |ii'ovision relatinj; to ipialilication liei'pi what wa.s bestowed by sec. f^lof the 13. N. A. Act, lH(i7. Hut their Lordships declineil in that TuRnBRdB i'. action to givti any decision on this biNDiiv. point. See sec. 84. Tilt? Dominion Parliament pii.M.sed an Act, 43 Vii;t.tt.25.8. 70[untler the Imperial Act ,'M . I'lis. 1,'»7 ; 53 L. .). I'. ('. 27; IJ) I.. I". 7H!). Till' Couit oi' IJi'ncli, (.^ucIkm-, lit'lil liy II iimJDiity llml tlif (' of opinion that, inasmuch iis the legislature of the provin«'e Imil pa.s.sed Ai'ls I'clating to such sm-'w- ties, and delined and limited tlicir operations, the Dominion Parliii- inent was incompetent to incorjio- rate the piesent a.ssoeiation, having proved its objects the erection of buildings throiigliont the Dominion. Their Lordships at present fail to see how the existence of tliese pro- B.N.A. ACT, s. ni.— INSURANCE ACTS. 47 viiii'inl Acts if comiM'tciitly passfd III!' liM'iil (il)jfi'ts, ciiii intci'lVrf witli i|ii> |i(i\vi'i' of till- l)i)iiiiiii()ii Parlia- iinrit lnH ims I'callv inlViiiifcd (III' Uiiil'liiiv; •'^"I'tflicH Ai'ls, a pio- |Hrn'iiii'il\ may (1(>uI)|I)'h.>4 Iii> ritiitiil, iiihi|)ti'ii." i[is lioi'dsiiip thru went iiiliiwhiit the petition really alleged, ami said iiapiiiies were* mainly ijircclrd in this case to the alle;;a- liiiii tliMt the company's operations liiiil lieeii limited to the province of (^iii'Ihi', and then continued : " It w'liiiiil In- a violation not only of the iii'iliritii'v rules of pr(N-edurc, hut of iiiii' ti'iid, to decide this appeal on a iiiw CISC, which, assuniin^ja lawful inr|Kinition, rests on the siipftitsnl iiilViii;;! mcnt of the laws of the {imviiM'c hy the company in con- iliii'tiii;; its o|M>rations.'' llis Lonl- >lii|i I'ltntinned to say: It was quite plMiii that under the i'ivil Cixh-, art. litis, tlie conclusions of the petition tti'if not ada|)ted to the case now ivIicdoM. [.SV'f suh-sec. I l,s«'c.SH!.] Kiiii ScllKMnc, li.C, said, in Ait.-Oeii. of Ontario r. Mercer, Julv IS, \HH:\, H a pp. ('as. at P 77('.; .J2 L..I. 1'. V.H\; JllL.T. ;;i:!; nnd l.eh.w, .-) S. ('. |{. .WH, iImiI the extent of the provincial |i(i\vcr(if le;j;i"*l"tm'e oxer " pro|M'rtv mill civil i'i<;hts in the province- ' I'.iniiiit lie a.scertained without at the siiiic lime ascerlainin<; the power iiiiil ri;;liis of the Dominion niulcr «ns ill nnd 102. .V(( sec. 10!) for full rejiort. In ('rri/.i:Ns' iNsrn.wt"!-: Co. r. l'.\H.soxs, U(i Nov. 1H81, 7 A|)p.C'as. !*i;.)lL.J.I'.C'. 11 ; |-)Ii. r..2l; aiiillHlow, I S. ('. H. 215, which wiiMiiitiction furdechiration thatthu lliiiaiii) Act, ."{!» Vict. c. 24., which iliaiswiih policies of insurunce in j t'livi ill the pruvincc, was »///«/ f)//r». Sir .Montague Smith, delivering the Citixbns' Im. judj;meut, holding that the Act "<"»>"-« t"o. « was valid, said : " 'I'he scheme of the B. iV. A. legislation, as ex- pres.sed in lirst hranch of sec. S)l, is to give to the Dominion I'arliament authority to make laws for the good govcriuucnl of ('ana la in all malt<-r.s not couiing within the classes of sulijects a.ssigned exclnsixcly to tlio provincial h'gislatnre. If the Wist sec. had slop|H>d here, and if the classes of suhjects enumerated in sec. !)2 ha| >arcnt con- tlict ; and it would ,sc«'m tlmt with this object it was dechired in the second hranch of the !)lst sei-. 'for grcatci' certainty, hut not so as to restrict the geia-rality of the fore- going terms of this section,' that (notwithstanding anything in the Act), the exclusive legislative au- thority of the Parliana-nt of C'anutia shoidd extend to all mut- ters couMUg within the classes of sul>j«'ctsi'nnmerated in that section. With the same object, ajjparently, the paragiaph at the end of si>c. !)1 was introduce. 1% IMAGE EVALUATION TEST TARGET (MT-3) // 1.0 I.I 1.25 ■ 4 5 ■ 50 I— IM ■^ 1^ 12.2 t 1^ 12.0 1.8 1.4 u V] <^ ^;. y /A Photographic Sdences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 d-^ \ ;\ \ M ^^ V ^ \ ^ •«v ■J^ Jr,'^ ,. '"'^s « ^ ^ <\ IIIIUUU'.I!»"»WWW ■^T^vmmiinfPPiHpiim n 1 1 : il ■ J Ml M 1; U XI ill 48 B.N.A. ACT, s. 91 —TESTING VALIDITY OF ACT. Citizens' In- surance Co. V. Parsons. Valin v. Lanolois. some cases wiiere this apparent conflict exists, the legislature could not have intended that the powers exclusively assigned to the provin- cial legislatures should be al)Sorl)ed in those given to tlie Dominion Parliament. Take as one instance the subject of ' Marriage and ')i- vorce,' contained in the enumera- tion of .subjects in sec. 91. It is evi- dent that solemnization of marriage would come witiiin this general description, yet ' solemnization of marriage in tiie province ' is enu- merated among the classes of sub- jects (sub-sec. 12) in sec. 92, and no one can doubt, notwitlistauding th's general language of sec. 91, sub-si'C. 26, that tliis subject is still within the exclusive authority of the leg' latures of the provinces. So 'i",„ raising of money by any mode or system of taxation ' is enumerated among the classes of subjects (sub- sec. 3) in sec. 91 ; but though the description is sutKciently large and general to incluile ' direct taxation within the province, in oi'der to th(^ raising of a revenue for provincial purposes,' assigned to the provin- cial legislatures by sec. 92 (sub-sec. 2), it obviously could not have hi en intended that, in this instanc also, the general power should override the particular one. With regard to certain classes of subjects generally described in sec. 91, legislative power may reside, as to some mat- ters falling within the general des- cription of these subjects, in the legislatures of the provinces. In these ca.ses it is the duty of the courts to ascertain in what flegree and to what extent authoiity to deal with matters falling within these classes of subjects exist in each legislature, and to define in the particular case before them the limits of their respective powers. It could not have been the intention that a conflict should exist ; and, in order to prevent such a restdt the two sections must be read together, and the language of one interpreted and, where necessary, modified by thdt of theother. In this way it may, in most cases, be found possible to arrive at a reasonable and practical construction of the language of the sections, so as to reconcile the re- spective powers they contain, and give effect to them all." " In per- forming this difficult duty it will be a wise course for those on whom it is thrown to decide each case which ari.ses as best he can, without entering more largely tipon an in- terpretation of tiie statute tlian is ne- cessary for the particular question in hand." See sub-sec. 13 sec. 92. Lord Selborne said, in Valin v. L.\NGLf)i.<, in the Court below, 3 S. C. R. 1, in P. C. Dec. 13, 18^9, 5 App. Cas. 115; 49 L. J. P. C. 37 ; 41 L. T. 6G2, that " if ilie subject-matter is within the •^"rl.^diction of the Dominion Par- iv'.it it is not within the juris- (lic*inn of the provincial Parlia- .ent.. and that which is excluded by the Olst .sec. from the jurisdic- tion of the Dominion Parliament is not anything else than matters coming within the classes of sub- jects assigned exclusively to the legislatures of the provinces." That ca.se decided that the Dominion Act, 37 Vict. c. 10., created a new juris- diction for the trial of election pe- titions in delegating to the existing courts of the different provinces,and was valid under sec. 41 [which see]. By that section it is enacted that the old mode of deciding certain questions was to continue until the Parliament of Canada should other- wise provide. Therefore it was the Parliament of Canada which was to provide. {Ibid.) " The first step to be taken [see sub-sec. 13, sec. 92, Note] with the view to test the validity of an Act of the provincial legislature is to consider whether the subject-matter of the Act falls within any of the classes of subjects in sub.-sec. 92. If it does not, then the Act is of no validity. If it does, then these further questions may arise, namely, 'whether notwithstanding that it is so the subject of the Act does not fa enumerated .section 91,' « of the prov: is not thercl; Watson in Di ities Board, ii 19, 1880, 20 •hin. 21, 1H8I 51 L. J. P. c. In tlie I'i, i S. C. R. the Dominion establishing a jurisdiction f( Ontario, was minion Parlian The 40 Vic persons the lik dies in all matt of contract and in rem and in outofor connec .shipping, or t on any river, , whole or part of Onttirio as s have in any exi; Admiralty Couii ■■^iich court ext province. Kitchie, C.J "'i'''f'B.N.A.i the Dominion Pj sive Iegi.slative a several subjects, estjil)lish courts ministration of t I liave not heard •lie slightest dou of this Act." 'Vee, for cond Reg. r. Burah, . t'as.I)p. 889-905 Law, 55. There t '^ml in Council det and ordinary cour' Act 22 of 1869 to 'ictilar district frc uf the ordinary coi 'oplaceit(s.5)uu( oflices to be app( sponsible to, the I "or of Bengal, ijieutenant-Gover what time that B.N. A. ACT, s. 91.— DOM. ACT dealing with ONE PROV. 49 does not fall within one of the enumerated classes of subjects in section 91,' and whether the power of the provincial legislature is or is not ihorchy overborne." Lord Watson in Dobie v. The Temporal- ities Board, in Q. B. Quebec, June li), 1H80, 26 L. C. J. 170 ; in P. C. Jan. 21, 1882,7 App. Cas. p. 149; 51 L.J. P.O. 26; 46 L. T. 1. In till' Picton, Dec. 13, 1879, 4 S. C. R. 648, it was held that the Dominion Act 40 Vict. c. 21., establishing a court of maritine jurisdiction for the province of Ontario, was intra vires the Do- minion Parliament. The 40 Vict. c. 21. gave to all persons the like rights and reme- dies in all matters (including cases of contract and tort, and proceedings in rem and in personam) arising out of or connected with navigation, shipping, or trade or commerce on any river, Ac, of which the whole or part is in the province of Ontario as such persons would have in any existing British Vice- Admiralty Court ii the process of such court extended to the said province. Ritchie, C.J., said in that case : " The B. N. A. Act, sec. 91, gives to the Dominion Parliament the exclu- sive legislative authority over these several subjects, and also j)ower to establish courts for the better ad- ministration of the law of Canada. I have not heard a word which casts the slightest doubt on the validity of this Act." iS'ee, for conditional legislation, Rec. r. BuRAH, June o, 1878,3 Ap. Ciis. pp. 889-905 ; Wheeler's P. C. Law, 55. There the Governor-Gen- iTal in Council determined, in the due iiiul ordinary course of legislation, by Act 22 of 1869 to remove (s. 4) a par- ticular district from the juriscUction of theordinarycourtsand offices, and lo place it (s, 5) u uder new courts and offices to be appointed by, and re- sponsible to, the Lieutenant-Gover- nor of Bengal, leaving it to the uieutenant-Governor (s. 8) to say at what time that change shall take S 9840. place, and also enabling him, not I^obib v. to make what laws he pleases for Tempobalitim thf t or any other district, but to ■"°*"°- apply by public notification to that district any law or part of a law which either always was, or from time to time might be, in force, by proper legislative authority. And by sec. 9 he might extend these pro- visions to another district. Lord Selborne, after saying the The Picton. giounds of the decision of the High Court was that what the Governor- General in Council had done was a delegation of legislative power, " In the leading judgment of Markby, J., the principles of the doctrine of agency are relied on ; and the Lidian Legislature seems to be regarded as in effect an agent or delegate, acting under a man- date from the Imperial Parliament, which must in all cases be exercised directly by itself. Their Lordships cannot but observe that, if the principle thus suggested were cor- rect and justified the conclusion drawn from it, they would be un- able to follow the distinction made by the majority of the judges be- tween power conferred upon the Lieutenant-Governor of Bengal by the 2nd and that conferred on him by the 9th section. If by the 9th section it is left to the Lieutenant- Governor to determine whether the Act, or any part of it, shall be applied to a certain district, by the 2nd section it is also left to him to determine at what time that Act shall take effect as law anywhere. Legislation which does not directly Rbo. i-. Buuah. fix the period for its own com- mencement, but leaves that to be done by an external authority, may with quite as much reason be called incomplete as that which does not itself immediately deter- mine the whole area to which it is to be applied, but leaves this to be done by the same external authority. If it is an act of legislation on the part of the ex- ternal authority so trusted to en- large the area within which a law actually in operation is to be 1 1 1- f tl i 60 !l I B.N.A. ACT, s. 91— DOUBLE LEGISLATION. Kbo. v. BiTKAH. applied, it would seem a fortiori to be an act of legislation to bring the law originally into operation by fixing the time for its commencp- ment. But their Lordships are of opinion that the doctrine of the majority of the Court is erroneous, and that it rests on a mistaken view of the powers of the Indian Legislature, and, indeed, of the nature and principles of legislation. The Indinn Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can do nothing beyond the limits which circum- scribe these powers. But, when acting within these limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large and of the same nature as those of Parliament itself. " The established courts of jus- tice, when a question arises whether the prescribed limits have been ex- ceeded, must of necessity determine that question ; and the only way in which they can properly do so is by looking to the terms of the in- strument by which, affirmatively, the legislative powers were created, and b a hich, negatively, they are restricied. If what has been done is legislation within the general scope of the affirmative words which give tlie power, and if it violates no express condition or restriction by which that power is limited (in which category wo>ild, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any court of justice to inquire further or to enlarge constructively those condi- tions and restrictions." See sec. 41 . Double LEGisr.AxiON. — It ap- pears by Hodge v. Reg., and Par- sons V. The Citizens' Insurance Co., that there may be Acts both of the Dominion Parliament and provincial legislatures dealing with the same subject-matter. But in the New Brunswick Act, 40 Vict., 1H77, sec. 19, it was provided that Ex parte Pillow. no dealer should, inter alia, per- mit any Indian to drink on the premises, and a penalty was im- posed for disobeying this enact- ment. The Deputy Minister of Justice referred to the fact tlmt among the subjects specially le- served for the exclusive legislation of the Parliament of Canada is that of the Indians, and alluded to the opinion of the Minister of Justice, 20 Oct. 1876, upon the statutes of the Legislature of Prince Edward Island, sec. 16, cap. 2., which pro- vided no liquor should be sold to any Indian ; and pointed out tlint these provisions are in direct con- flict with those of the Dominion Act of 187C, 39 Vict. c. 18. .sec. 79., both as regards the amount of the penalty and its disposition, and that it seemed clear that the loeiti legislature, either in Prince Edward Island or elsewhere, legislating on matters relating to the Indians could not fail but to cause confn- sion, and that there ought not to be double legislation on the sub- •ect. Prov. Leg., 188G, p. 527. Where similar provisions are made in a provincial Act as in a Dominion Parliament Act about the .same date, the Minister of .Jus- tice reported that as no public in- convenience could arise, the pro- vincial Act might be left to its operation. These Acts referred to Insolvent Banks, Insurance Com- IJanic*, Loiui Companies, Building Societies, and Tiwling Corporii- tions. An Act of the Dominion Parlia- ment (31 Vict. c. 70.) providing for the taking of evidence in tiio provincial court to be used outside the province is valid. Wetlierell V. Jones, Sept. 15, 1883, 1 On- tario R. 713. See sec. 92, snb- sees. 13, 14, 16. Torrance, .1., .said in e.r parte Pillow, July 5, 1883, 27 L. C. Jurist, 216: "The power of tliP Dominion Parliament to pass a general law of nuisances as inci- dent to its right to legislate ns to public wrongs is not incompatible II I B.N. A. ACT, s. 91 .— PBOCEDURE IN SANCTIONING ACTS. 51 as in n about ol' Jus- hlic in- le pvii- ft 10 its [■(MMVll to Colli- Biiiltliiig Corpoiii- 11 Piirliii- M'oviiling cp ill till' (\ outside tVotliPi't'll 3, 1 Oii- 92, suh- e.i i?i' paH( :7 L, C. of the |o pi*'*' f as inf- late as to lompatiljlf with a right in the provincial legis- Ifitiires to pas.s " a law authorizing tlie municipal corporation.s to pass l)V('-laws dealing with nuisances as incidental to legislation for iniini- lipal institutions. On the 9th June 1868, the Cana- dian Privy Council receivedamenio- niiiiluin from the Minister of Justice idative to tlie course to be pursued witli respect to the Acts passed by the provincial legislatures before thoiii. The memorandum said : "The same powers of di.sallowancc lis have alwr.ys belonged to the Imperial Government with respect to the Acts pa,s.sed by colonial K'Sjislatures have been conferred by the Union Act on the CTOverniuent of Canada. Of late years Her Majesty's Government hiis not, as ii general rule, interfered with the legislation of the Colonies havins; repi'oseiitativc institutions and res- ponsible government, except in the cases specially mentioned in the instruction to the Governors, or in mutters of Imperial and not merely local interest. "Under the present constitution of Canada, the Governor-General will be called upon to consider the propriety of allowance or disallow- ance of provincial Acts much more frequently than Her ^Nlajes- ty's Government has lieen with respect to colonial enactments. In deciding whetlier any Acts of a provincial legislature should be disallowed or sanctioned, the Go- vi'i'nnient must not only consider wlietlier it affects the interests of the whole Dominion or not, but iiko whether it be unconstitutional — wiieti er it exceeds the jurisdic- tion con. 'erred on the local legis- liitiircs — and in cases where the jurisdiction is convenient, whether it dashes with the legislation of thi' General Parliament. " As it is of importance that the eourse of local legislation should lie interfered with as little as pos- sible, and the power of disnllow- ance exercised with great caution, and only in cases where the law and the general interests of the Do- minion imperatively deinaads it, the undersigned recommends that the following course be pursued : — " Tliat on receipt by Your Ex- cellency of the Acts passed in any province, they be referred to the Minister of Justice for report, and that he, with all convenient speed, do report as to those Acts which he considers free from objec- tion of any kind, and if such report be ajjpi'oved by Your Excellency in Council, that such approval be forthwith communicated to the provincial government. " That he makes a separate Rules to be report, or reports, on those Acts observed in which lie may consider— &r''rovmcial " (1) As being altogether illegal j^gjg, or unconstitutional ; " (2) As illegal or unconstitu- tional in part ; " (3) In cases of concurrent jurisdiction, as clashing with the legislation of the General Parlia- ment ; " (4) As affecting the interests of the Dominion generally. "And that in such report, or reports, he gives his reasons for his opinions. " That where a measure is con- sidered only partially defective, or where objectionable as being pre- judicial to the general interests of the Dominion, or as clashing with its legislation, communication should be had with the provincial government with respect to such measure, and that, in such cases, the Act should not be disallowed, if the general interests permit such a course, until the local go^■ern• ment has an opportunity of con- sidering and discussing the objec- tions tnken, and the local legisla- ture.-i have also had an opportunity of remedying the defects found to exist." — Signed by John A. Mac- donald. This recommendation has been, with one or two exceptions, acted on. Prov. Leg., 1886, p. 1. D 2 lifl I ! 52 B.N.A. ACT, s. 91 (2).— LIQUOR : BHEWERS. (1.) The public debt and property. (2.) The regulation of trade and commerce.^ The Brewer's Case. Severn v. The Queen. I Read with this sub-sec. 3 and paragraph termination, the sub- sees, post sub-sec. 29. Also see AmericaD Const. Act, articles 1, 2 and 3, and sub-sec. 9, sec. 92. In Severn's case, Jan. 28, 1877, 2 S. C. R. 70, a tax was required by the 37 Vict. c. .32. s. 24 [see Reg. v. Taylor, p. 55] of Ontario for dealing in liquors to be consumed in the province. The Supreme Court held the law to be ultra vires, on the ground that it was in conflict with sec. 91, 8ub-.sec. 2, in that it imposed a license duty on wholesale sales. That case was an appeal taken into the Supreme Court u:.der section 27, Supreme Court Act, 38 Vict. c. 11., from a judgment of Q. B. Ontario, overruling a demurrer of John Severn, brewer, to a criminal information filed against him by Att.-Gen. of Ontario. Richards, C J. : " I consider under the B. N. A. Act power to regulate trade and commerce rests exclusively with the Supreme Court Dominion Parliament, as also the right to raise money by the mode of indirect taxation, except so far as the same may be expressly gi\en to the local legislatures. Making it necessary to take out and pay n license to sell by wholesale or retail manufactured liquors, is raising money by the indirect mode of taxation." Ritchie, J. [who was of opinion with Strong, J., that the Legisla- ture of Ontario had the power to pass the law in question], said [p. 99 of R.] : " I cannot think it was intended to confine the powers of the local legislature for the raising of a revenue for provincial purposes to licenses of a purely municipal character, granted, most frequently, rather with a view to police regula- tion than for purposes of revenue, and which, when granted for the lat- ter object, could hardly be s\ipposed Act, 38 Vict. c. 11. s. 27. to be more than adequate for local and municipal purposes. I think the power given under sub-sec. 9, sec. 92, should be construed as intended to furnish the local legislatures with the means of raising a substantial reveniie for provincial purposes from all such licenses as at the time of con federation were granted in the new Dominion, either by provincial or municipal authority. The ilcenses named are not rjnstkm generis, for certainly auctioneer licenses are not ejusdem generis with tavern licenses, nor always granted by the same authority, for in New Brunswick, while tavern H.ienses were granted by the municipal authority, auctioneer licenses were granted by the Lieutenant-Gover- nor; and so with respect to dis- tillers an annual license had to be obtained from the provincial Trea- surer; so also formerly with re- spect to hawkers, pedlers, and petty chapmen, a provincial duty was imposed, and they were required to take a license from the Treasurer of the province [9 & 10 Geo. 4. c. 27.] ; and again, in New Bruns- wick, licenses other than those of a police or municipal (character were granted by municipal authority as licenses for the sale of liquors In- wholesale, no person being allowed to sell any liquors by wholesale without license, which liquors the statute declared inter alia to be ale, porter, strong beer, or any other fermented or intoxicating liquor. From this brewers were not exempt, there being no exemp- tion in their favour. [His Lord- ship read sec. 3 of 6 Vict. c. 35. (New Brunswick).] Therefore 1 know the rtde noscilur a sociis cannot apply in this case. It is said this construction conflicts with the power of the Dominion Govern- ment to regulate trade and com- B.N.A. ACT, s. 91 (2).— DIRECT TAXATION BY DOMINION. 63 merce and the raising of money by any niorle or system of taxation. All I can say in answer to tliat is, so t'nr, and to far only, as tlu; ruisiag of a revenue for provincial, municipal, and local purposes is concerned, the B. N. A. Add not .sell by wholesale in New Brunswick at the time of confederation without a license, and I do not think he can do so now in Ontario. It may be right for me to say that it is only under the words ' and other licenses,' and solely in order to the raising of a re\enue for the purposes named in sub-sec. 9, sec. 92, that in my opinion the local legislatures have the right of imposing this burden or tax on brewers." T-.sehereau ("after difficulty], Fournier, and Henry [but see his opinion post, sub-sec. 9, sec. 92, Att.-Gon. On- tario V. Att.-Gen. Canada, that he was wrong], JJ., were of opinion the Act was ultra vires, Fournier for the reasons that (1) because it comes in conflict with the power of the Federal Government to regulate trade and commerce ; (2) because the terms " and other licenses " in sub-sec. 9, sec. 92, are limited by the interpretation given to sub- sec. 2, sec. 91. In order to con- ciliate these two provisions the words "other license" must be read as if they were followed by these words — " not incom- patible Avith the power of regulat- ing trade and commerce; (3) be- cause the tax imposed was an in- direct tux, which the local govern- '-r'1 54 B.N.A. ACT, s. 91 (2).— RESTRICTION OF SEC. 01. Severn v. The mont hns no right to impose ; QuBEN. ^4j liecnusc it fomos in direct conflict with 31 Vict. c. 8. (I)oin. Act), relating to excise." Henry, J. : From a review of all the ciises cited and others, he was ohhged to conclude that the words " and other licenses " must he restricted r/its- liem generis^ p. of R. 138. "Every constituent of trade and commerce, and the subject of indirect taxation, is withdrawn from the consideration of the local legislatures, even if it should otherwise he apparently in- cluded. The Impei'ial Act fences in those 28 subjects [sec. 91] wholeside and in detail, and the local legislatures were intended to be, and are, kept out of the inclosure, and where authorised to deal willi the subject of 'direct taxi'tion ' within the province, as ir. sub- sees. 2 and 9, sec. 92, they are commanded by the concluding Bank of words of sub-sec. 29, sec. 91, not ToBONTo V. to interfere by measures, for what Lambb. they may call ' direct taxation,' or in regard at least to ' other licenses ' or in reference to ' municipal in- stitutions,' with the prerogati\e of the Dominion Parliament as to the ' regulation of trade and com- merce,' including ' customs and excise hiws,' and 'the raising of money by any mode or system of taxation.' The exercise of the power contended for by the Legis- lature of Ontario is incompatible with the full exercise of that of the Dominion Parliament, and might be used to its total destruc- tion. Tlu> object of the Imperial Act was clearly to give plen.'iry powers of legislation to the Do- minion Parliament with the excep- tion before stated, and just as clearly to restrict local legislation so as to prevent any conflict with that of the former in regard to the subject with which it was given power to deal." "The 'excise Co. laws' of the Dominion must be aFected by an additional license fee being exacted by the local govern- ment. The 'excise' revenue be- longs solely to the Dominion Citizens' iNSCnANCE V. Parsons, Government, The Dominion Par- liament having imposed a license fee of ^b() on a brewer of fer- mented li(|uors, might at an early date desii'e to impose, for rcieniic, a higher fee. It hi.s the ac- knowledged right to do so; but in the meantime the local legis- lature has fully weighted the enter- priser of brewing; and the result becomes, therefore, a transfer from the resources of the Dominion revenue to the coffers of the lociil government. AV^ho can say, then, there is not an attempt to collect provincial revenues from a source clearly appertaining to the Do- minion ?" His Lordship then said, from a re\iew of all the cases, iip concluded the words " and other licenses" in sub-see. 0, .see. 92, must be restricted ej'istlem f/entris. [See Taylor v. 'Reg,, post , p. 55.] Severn's case was explained in B.VNK OF TOKONTO V. LaMBE, iu Q. B., Quebec, 23 Jan. 1885, 29 L. C. J. 77 ; 1 Mon. Q. B. 122 ; in P. C. Julv9, 1887, 12 App. Cas. pp. 575, 58(); 56 L. J. P. C. 87; 57 L. T. 377 [see sub-sec. 13 of .sec. 92]. In that case the Judicial Com- mittee decided that a pro^■ince could impose direct taxation on commer- cial corporations carrying on their business in the province. Lorii Hobhouse stiid: "Since the Severn case was decided the question litis been more completely sifted." His Lordship said : " The words ' regulation of trade and commerce ' are indeed very wide, and in Severn's ease [ibid.] it was the view of the Supreme Court that they operated to invaliilate the license duty which was there in question. But since that case was decided the question has been more completely sifted liefore the Committee in Citizens' Insurance Co. V. Parsons [in Courts below, 43 U. C. Q. B. 261 ; 4 O. A. R. 96; 4 S. C. R. 215; in P. C. Nov. 26, 1881, 7 App. Cas. pp. 96, 108; 51 L. J. P. C. 11 ; 45 L. T. 721 ; pest, sub-sec. 13], and it was B.N.A. ACT, H. 91 (2)— "TRADE AND COMMERCE." 55 t'oiiud al)Holutely necessiiry that the literal meauiiig of the words should \x ri'stricted in order to afford scope jr powers which are given exclusively to the proviucial legis- tures. It was there thrown out that ihe power of regulation given to the Parliament meant some general or inter-provineial reguhi- tioDS. No further attempt to de- liiie the subject need now be made, because their Lordships are clearly of opinion that if they were to hold that the power of regulation prohiliited any provincial taxation on the persons or tilings regulated, so far from restricting the expres- sions, as was found necessary in Citizens' Insurance Co. v Parsons [ibid.], they would be straining them to their widest conceivable extent." In Citizens^' Insurance Co. v. Parsons, the Ontario Act, 39 Vict, e. 21.. R. S. O. c. 167. s. 8, provided that the Insurance Co. were not to be liable for damage by tiro if there was an exist- ing prior insurance, unless it was disclosed to the Insurance Co. This was held valid. There existed a Dominion Parliament Act, 38 Vict. c. 20., recpiiring all insiu'ance companies to obtain a license. The Insurance Co. in question had its head office in i\Iontreal [see for this case, " Civil Rights," sec. 92, sub-sec. 13]. It UKiy be noted here that in Parson's ease, Sir Montague E. Smith, in delivering judgment, said: "Con- struing the words ' regulation of trade and commerce ' by the vari- ous aids to their interpretation above suggested, they would in- clude political arrangements in re- gard to trade requiring the sanc- tion of Parliament, regulation of trade in matters of inter-provincial concern, and it may be that they would include general regulation of trade affecting the whole Domi- uion. Their Lordships abstain on the present occasion from any at- tempt to define the limits of the authority of the Domiuion Parlia- It is Att.-Gen. of the Qdbdec v. Thk Qdeen Insuoancb Co. ment in this direction, enough lor the decision present case to .say that, in then* view, its authority to legislate for the regulation of trade and com- merce does not comprehend the power to regulate by legislation the contracts of a particular busi- ness or trade, such as the business of a fire insurance in a single pro- vince, and therefore that its legis- lative authority does not, in the present oise, conflict or compete with the power over property and civil rights assigned to the legisla- tiu'e of Ontario by sub-sec. 13, sec. 92." Compare with that case Att.-Gen. for Quebec r. The Queen Insurance Co., in Q. B. Quebec, Dec. 11, 1877, affirming Supt. Ct., 21 L. C. J. 77 ; in P. C. July 5, 1878, 3 App. Cas. 1090 ; 38 L. T. 897. It was held that the Quebec Act, 39 Vict. c. 7., was ultra vires. This Quebec Act enacted that every assurer [except marine] should be boiuid to take out a license. By sec. 2 the price of the license was to be an adhesive stiimp affixed to the policy or re- ceipt or renewal ; in case of fire, 3 per cent., and 1 per cent, for other assurances, on the premiums paid. See post, p. 12(3, Severn's case [p. 52], which was in reality an ap- peal from Reg. v. Taylor. That case the Supreme Court refused to decide, inasmuch as it wa.s prior to the institution of the Supieme Court, 1 S. C. R. 65, 38 Vict. (Dom.) c. 11. s. 26. In Reg. i-. Taylor, 25 Sept. Reo. y. Taylor, 1875, Queen's Bench, App. Side, 36 U. C. Q. B. 218, it was held that the restriction im- posed by the Ontario Act, 37 Vict, c. 32., on brewers not to sell by retail as defined by that Act was not tdtra vires, it being a men^ . repetition and renewal of the legis- lation which was in force in On- tario before and at the time of the Confederation. Sees. 4 and 21 of the statute in question showed what wholesale was. Sees. 24, 26, lr:im I :M' 66 B.N.A. ACT, s. 91 (2) —"EXCLUSIVE AUTHORITY." ! I Hi li Rwi. f . Tavlob. prohibit the sale of liquor without a license first ol)tiiined under the Act, which covers the sale by ii brewer of his own uiiuiufacture. The fee for the license, sec. 22, was $50 for sellinj? by wholesale. Sec. 35 imposes the penalties for .selling without such license. Sec. 53, burden of proving license rests on the party prosecuted. The defendant was a l)rewer of St. Catherine's, licen.sed by the Domi- nion Government for the manufac- ture of spirituous and other liquors, and sold by wholesale beer for con- sumption within the province of Ontario, without first obtaining a licen.se as required by the On- tario Act, J 874, 37 Vict. e. 32, an Act expressly imposing thi license on a brewer under provin- cial authority. The clause said to be contravened was see. 24 : " No person shall sell by wholesale or retail any spirituous, fermented, or other manufactured liquors within the province of Ontario, without having first obtained a license un- der this Act authorizing him so to do : provided that this section shall not apply to sales under legal pro- cess, &c." Sec. 21 included brewers and distillers. Sec. 22 for license by wholesale a duty of $50. All duties under this section are for provincial revenue. Sec. 4, a license by wholesale was a license for selling by wholesale only in places other than inns, &c., in quantities five gallons in each ca.sk, and where bottled not less than one dozen bottles, of at least three half- pints each, at any one time [see sec. 12, sub-sec. 3, Temperance Act, 1864]. Sec. 35 subjects any person selling such liquors without a license for first offence to a penalty of not less than 320 ; for the second offence imprisonment in the county gaol with hard labour for not exceeding three months ; for the third offence to imprisonment with hard labour for not less than one or more than three months. Sept. 25, 1875, Draper, C. J. : " The power to make laws which is conferred by the first part of tlii.s section [s. 91] on Her Majesty mul the Senate and tlx' House of Com. mons for the peace, order, and ijdoil government of Canada is (substi- tuting ' welfai-e ' for ' order ') ii re- petition of the language u.sed in the 12 sec. of \^ Geo. 3. c. H3., mid again in sees. 1 and 2 of 31 Geo. .'{ c. 31. But for greater certainty— not to restrict what had just been conferred — it is declared that (not- withstanding this Act) the c.irlii- sive legislative authority of tlic Parliament of Canada extends to all matters coming within tlic clas.ses of enumerated siibietts thereinafter set forth. Exclusivf of what ? Surely not of the siili- ordinate provincial legislatuies, who.so I jwers had yet to be con- ferred, and who would have no al)solute power until they were in .some form defined and granted. Would not this declaration .«eeui rather intended as a more definite or extended renunciation on tin part of the Parliament of Greiii Britain of its powers over the iii- ternal affairs of the new Dominion than was contained in the Imperinl statute, 18 Geo. 3. c. 12., and tiif 28 & 29 Vict. c. 63. ss. 3, 1, 5.' In somewhat different terms, by sec. 92 the legislature of eiieli province has powers conferred npon it to ' exclusively make law.s in relation to matters coming within the cla.sses of subjects . . . oim- merated ' in that section. Now it appears to me that sec. 91 does mention some classes of subjects as belonging to the 'exchi.sive legis- lative authority ' of tlie Parliiinunt of the Dominion, which in part at knst form part of matters coming within some class or classes of .snli- jects enumerated in sec. 92. For example, the second class of subjects mentioned in sec. 91 is ' the legii- lation of trade and commerce ' (two words which, in their present loca- tion, appear to me to be almost, it not entirely, synonymous) ; and next, * the raising of money by fl»y mode or system of taxation ; while BN.A. ACT, H. 91 (2).— MEANING OF "OTHER LICENSES." 67 in !s(i . 02 w«' fiiul in tlic ciniincni- tion oi clasMt's of Miilijpct.s williiii the ' exclusive powcis of proviiiuial legisliitiircs,' ' diiwt taxation within th(? jji-ovinoc in oi'('t'r to the riiisin}; o^' a rfvi'niic for provincial IMirposi'H ' ; ant! * slioj), saloon, tavern, auctioneiT, and other iieenses, in order to tlie raisini; of a revenue for ^ rovineial, local, or nmiiicipal purposes,' and ' pro- perly »nd civil li/^hts in the jjro- viuce.' Now it will, in my opinion, be (litllcult to maintain that the regulation of trade and conunercc even alone, and a mnltu fortiori in conjunction with a power to raise money by any mode or system of taxation, if cxclusivclij ^este(l in the Dominion, arc not at variance with pow(!rs in the provincial legis- latures excltisively to make laws respecting shop, saloon, tavern, iiuctioneer, and other licenses, in order to raise a revenue for provin- cial and other piuposes, and to re- sort to direct taxation for |)rovincial purposes. As to direct taxation, while there is some difl'erence of expression in defining it, the dif- IVience appears to me to be more verbal than sidistantial. [His Lordship citetl Encyc. Brit., title "Taxation,"] In "England the rates of duties on licenses are in- cluded under the head ' Excise' I entertain no doubt that a duty to be paid for a license to brew or to sell beer by wholcsdeis an indirect tax. But it is further contended that the words ' shop, stdoon, tavern, auctioneer, and other licenses,' do not include a license to a brewer to brew beer, or to sell the .sjinu^ by wholesale, and there- fore the Ontario Legislature could not lawfully pass an Act to compel a brewer to take out such a license ; that the words ' other license ' are limited by the preceding words, and that the maxim noscitur a sociis must be applied. This objection i' founded on the rule that 'a general word following specific words must be tuken to mean some- thing of the same kind ' ; or, as is elsewhere stated, ' when u word of Rko. wide signification follows others lesa wide, it must be interpreted as having a nu>aning bringing it with- in the same class as those others.' Head i\ Ingram, 3 E, & B. l». 001. 'J'herefore 'other licenses' means licenses of the same charac- ter as those just previously men- tioned, namely, shop, tavern, and auctioneer, which are licen.ses to carry on a particidar business, or to exerci.se a particular vocation ; and it is urged that the licen.ses thus spccificfl are commonly men- tioned with, and seem to have an attinuy to, tho.se licenses which are chiefly contained in the Municipal Act, as for example, licenses on billiard tables, ordinary houses where fruit, &c., are .sold, huck- sters and pedlers, &c. The aflinity in some of these cases seems to me rather remote, and the objections appear to me to be answered by the consideration of the object, ' raising a revenue for provincial as well as for local or municipal pur- poses.' With the sincerest respect for the learned judge [Wilson, J.] who has put forward this objection, I cannot yield to it. I think we should not look out of the Imperial Act for the socii whose character is to aflix a mean- ing on ' other licenses ' ; and grant- ing that the four named occupa- tions have got into low company in the Ontario Municipal Act, they are lifted out of it in sec. 92. To be .serious, I tlo not find in the objection, or the illustration of it, any suflicient ground for holding that the license to a brewer, as provided for in the Ontario Act, is not within the words ' other licenses,' as u.sed in the Imperial Act. It is quite true that the business of a brewer has been gene- rally , perhaps always, dealt with as a nuitter of excise, but I do not see the inconvenience, though there is incongruity between the two pro- -visions, nor that there will any difficulty arise in the brewer's busi- ness, or his relations with the . Taylok. ,t L.^ • i' i i III 1 58 B.N.A. ACT, H. 01 (2),— LICENSES BY DOM. AND PROVS. 'Ml fill I! 11) Bbo. V. Tavi.oh. oHiccrH ol' cxfiHc, by his bei.i}^ re- (l tu l4ikf out lliiH pro\iiieiul license. VV^e must, liow(ner, eon- Hider what is the eflVct of the ujjpii- I'ent iiitei'loreiife or iiifoiisisteney between sees. J)l iinil !)'J. [His Lordship eited Dvviirris, j). 513] I may liere piopeily apply the lan- }^uii;j;e ol' UesI, ('..I., in Churehill r. Ci'ease, 5 Bing., p. IHl), and say I slionld have thought the language oi' sec. t)l, ' iiw ny Illation of trade ami coiinntrcc,' ' eonelusive, il' there had been no eonilicting intention to be coUeeti^il IVom the Act ; but the i'ul(! is that where a general in- tention is exi)resse(l, and tin; Act expresses also a particulai' intention incompatible with the general inten tion, the particular intention is to be considered in the nature of an exception.' This appears to nie to .settle any cpiestion as to inconsis- tency between tlie two sections, and to leave the whole question to turn upon the effect of the words ' other licensee.' Upon this I ha\ e already expressed my opinion. Assuming this conclusion to be L-orrect in l)oth respects, there is no ground for holiliug the Act of Ontario, 37 Vict. c. 32., to be ultra vires , and whether it touches several or only one of the classes of subjects euu- mernted in sec. 91, it does not go beyond the exceptions contained in sec. 92, and if so, there should bt judguieut against defendant on the demurrer. And this makes it im- necessary to consider antl observe upon the American cases that were referred to in the judgment deli- vered in the Court bplow [Brown V. State Maryland, 12 S. C. R. U. S. (12 Wheat.), 419; the License Cases, 46 S. C. R. U. S. (5 How.), 504— Prohibition of sales, except in large quantities. Held did not interfere with power of Congress to regulate commerce because acted wholly on the traffic within the States borders. Almy V. State California, 65 S. C. R. U. S. (24 How.), 169— Require- ment of a stamp on bills of lading on the export of gold was held to 1m' a regulation of ti'ade a Stat« could not legislate onj, because tlicy do not touch thv points on which I rest my decision as lu'ing sustniiicd by English authority. 1 cauiiot forbear adding that 1 see no inevit- able ineon\enience to arise froui each government possessing tlu^ power of granting a license in tiiis matter. It might certainly be said that tilt? Legislature of Ontario might make an injui'ious use of it, as by inq)osing a tax for the license unreasonable in amount, wliicli would prevent the exercise of the trade ; but I cainiot believe that the most /ealou.s advocate of prohibition as to spirituous or fei'mented licpiors would prevail on the As.sembly to pass such a law, and if it hapixMiwi otherwise, the power of disallow- ance is ample to prevent such an interference' with the policy of the Dominion Government. This power would pre\ent any mischief from hasty or unwise legislation, which could not well be justified tis actuated by a tiesire to ' raise a revenue for either provincial, lociii, or municipal purposes.' " Queen's Bench reversed, and judgment on demurrer entered for he Crown. Strong, J., concurred. " I only desire to add that I am of opinion that a license which would amount to a prohibition would be an inidne interference with the exclusive powers of the Dominion as to trade and commerce, as has been in effect lately decided by the S. C. of New Brunswick." [See next case.] In Reg. v. Justices of King's County, February 1875, Kit- chie, C.J., 2 Pugs. pp. 535-539: "This was an application for a mandamus to the justices to com- pel them to grant a tavern license to one M. McManus. Application had been made by McManus to the sessions for a license in February 1874, and the usual fee tendered, The sessions refused to grant a license, alleging as a reason that they did not intend to grant any B.N.A. ACT,s.91. (2)— PROHIBN. OF ALL LIQ. TRAFFIC. 59 license to sell spirituous licpiors for lliiil vt'iir. McMimiis was sliortly niter lined I'or selliii}^ witiioiit ii I'a'iise. Ill siiowiiij^ cause aj^ainst ihciipiilieation, it was objected (1) lliiil tlie power {^ivi'ii to llie i'arlia- incnt ol' Canada by tlie 15. N. A. Ad, 1S07, see. iil, sub-see. 2, iiiwint tratle and eonuuereu witii I'orci'n eoiintries, and tiiat liie iiuwci' to make laws respecting lavciii liecnsi's Iteion^ed e.\clusi\ely to tlie |)rovineial lej^islalures by sec. \Y1\ (li) tliat l)y the Act of A.s.seud)ly, ,'i(i Vict. c. 10. H. 2, it wa.s entirely ill the (li.scretiou t>f sessions wlietiier liiiv l^iantcd licenses or not; that it wasan arbitrary discretion, wliicii could not be cpicstioned. 'i'o the Dciiiiien of t.'ana the FKEntiiicTON r. Dominion Parliament, which, as ^"*' hdeen. has been stated, is authorized ' to make laws for the peace, order, and good government of Canada in re- lation to all matters not coming within the classes of subjects by the Act assigned exclusively to the legislatures of the provinces ' ; and that ' any matter coming within any of the classes of subjects enumerated shall not l)e deemed to come within the class of matters of a local or private nature com- prised in the enumeration of the classes of subjects assigned ex- clusively to the legislatures of the provinces.' Therefore 'the regu- lation of trade and commerce ' being one of the classes of sub- jects enumerated in .sec. 91, is not to be deemed to come within any of the classes of a local or private nature assigned to the legislatures of the provinces. To my mind it seems very clear that the general jurisdiction or sovereignty which is thus conferred emphatically negatives the idea that there is not within the Dominion Legislature power or authority to deal with the question of prohibition in respect to the sale or traffic in intoxicating liquors or any other article of trade or commerce. It is said a power to regulate does not include a power to prohibit. Apart from the general legislative power which I think belongs to the Dominion Parliament, I do not entertain the .slightest doubt that the power to prohibit is within the power to regulate. It would be strange in- deed that, having the .sole legis- lative power over trade and com- merce, the Dominion Parlian-ent coid; to the class of subjects, ' Pro- perty and Civil Rights,' within the meaning of sub-sec. 13. Their Lordships having come to the con- clusion that the Act in qnestion does not fall within any of the classes of subjects assigned ex- clusively to the provincial legis- lature, it becomes uiuiecessjiry to disctiss the further question whether its provisions also fell within any of the classes of subjects cnnme rated in sec. 91. In abstaining from this discussion, they must not be understood as intimating any dissent from the opinion of the Cliicf Justice of the Supreme Court of Canada and the other judges, who held that the Act, as a general regidation of the traffic in intoxicating liquors throughout the Dominion, fell within the class of subjects. ' The Regulation of Trade and Connncrce ' enumerated in tliat section, and wa.s, on that giound, a valid exercise of the legislative power of the Parliament of Canada." Appeal dismissed. So the (piestion whether it came under the sub-sec. 2 of sec. 01 was left undecided. Sec dis- i cussion in Donnnion v. Four Pro- (vmccs, the Dominion Liquor Licence Acts, 1HH3-4. [See sub- jsec. t), see. 92. j In Hodge v. Tim Qu&en, in the [Court of Appeal, Ontario, 7 O. A. R. 217, Dec. U, 1883 ; 9 App. Cas. 117; 5! L.J. P. C. 1; 50L. T. jSOl, where the Ontario Legisla- Iture passed an Act, the Liquor "iccn.se Act of 1877, Revised Statutes, c. 181, confined in its operation to municipalities in the province of Ontario, by which the legislature appointed license commissioners to meet in each municipality, and empowered them to pass, uiitler the name of reso- lutions, bye-laws or rules to define the conditions and qualifications re- quisite for obtaining tavern or shop licenses for sale by retail of spiri- tuous liquors within the muni- cipality, for limiting the nundjer of licen.ses, and to impose penalties for infraction of their resolutions, it was held these were matters of a mere local nature in the province, and to be similar to powers then belonging to municipal institutions under the previous exi.sting law passed by the local parliament, and did not interfeie with the general regulation of " Trade and Com- merce " which belongs to the Do- minion Parliament, or with the provisions of the Dominion Tem- perance Act, 1878. Biitisli Columbia had passed in 1884 a bill to restrict the immigra- tion of Chinese, and the fine in- flicted on one Wing Chong by the magisti-ate was qua.shed on the issue of a writ of certiorari by Crease, J. Her Majesty's Privy Council gave special leave to ap- peal, but the appeal was eventually withdrawn. See U. S. Law, Liii- Sing i\ Washburn, 20 Cal. 531. On the.se Chinese exclusion bills the Minister of Justice (A. Camp- bell) for the Dominion reported that they were objectionable as an infringement on the above sub- section. He cited 2 Story's Com., sec. 1061, "Commerce undoubt- edly is traffic, but it is something more. It is intercourse. It de- scribes the commercial intercourse between nations, and parts of nations, in all its branches ; and is regulated by prescribed rules for carrying on that intercourse." Sec. 1064, " It may, therefore, be safely affirmed that the terms of the Con- stitution have at all times been iinderstood to include a power over HODOB V. Queen. TlIK ■■'■ m Chine.se Case of Wing Chong. 4 !: It : 64 B.N.A. ACT, s. 91. -DOM. ACT ULTRA VIRES. HoooB V. Thh navigation, as well as trade ; over Queen. intercourse, as well as traffic, and that, in the practice of other coun- tries, and especially in our own, there has been no diversity of judgment or opinion. During our whole colonial history, this was acted upon by the liritish Par- liament MS an uncoutestable doc- trine. That Government regu- lated not only oiir traffic with foreign nations, but our navigation and intercourse as unquestioned functions of the power to regulate commerce." Sec. 1065, "This power of the Constitution extends to corimerco with foreign nations, and among the several States, and with the Indian tribes. In regard to foreign nations, it is univer-sally admitted that the words compre- hend every species of commercial intercourse. No sort of trade or intercourse can be carried on be- tween this country and another to which rhey do not extend. Com- merce as used in the Constitution is a unit every part of which is indicated by the terra." Pas- senger cases, 46 S. C. U. S. (7 How, 283). The Canadian Min- ister of .Justice, considering the Act an interference with the powers of Parliament to regulate trade and commerce, recommended their disallowance. During 18Ho the Parliament of Canada passed an Act restricting and regulating the Chinese immigration into Canada, 48 & 49 Vict. c. 7. See Prov. Leg. 1887, 286. TiiEGovEnNOR- Following Hodge i'. The Queen GENER.ir. i'. came the petition of the Governor- The I'ouii General of Canada on the Liquor P110VINCE.S. License Acts of 1883 and 1884, the case being a reference to the Privy Council, heard 11 and 12 Nov. 1885, to determine whether or not the Liquor Licensing Act of 1883, and an Act of 1884 amending that Act, were intra vires the powers of the Doir'nion Parliament. The Dominion had passed in 1878 the Canada Tem- perance Act, which in Russell v. The Queen was decided as valid. Following upon that the Acts of 1883 and 1884 were passed, but suspended in their operation until it should be determined by the Supreme Court whether they were valid. Under 47 Vict. (Dom.) c. 32. s. 2(5, the Liquor License Acts, 1883 and 1884, were referred by the Governor-General in Council to the Supreme Court, to answer the questions whether the Acts were in whole or in part withiu the legislative authority of the ]*arliament of Canada ; and, if in part, what parts are within sucli legislative authority. The judges' opinion was that the Acts referred to are, and each of them is, ultra vires of the legislative authority of the Pai-liament of Canada, ex- cept in so far as the said Acts respectively purport to legislate respecting those licenses mentioned in sec. 7 of the said "Liquor Iiicense Act, 1883," which are there denominated ves.sel licenses and wholesale licenses, and except also in so far as the said Acts respectively relate to the carrying into effect of the provisions of "The Canada Temperance Act, 1878," Henry, .J., being of opinion the said Acts were nltra vires in whole. Dig. S. C. R. 509 ; (5 Can. Gaz. 152, 265. See arguinent given in note, [). 144, the result being the Privy Council reported the whole Act ultra vires, 12 Dee. 1885. In his argument in that case Sir Farrer Herschell said the pro\incial Act in question in Citizens' Insurance Co. v. Parsons was held not ultra vires because it was not a matter relating to trade and commerce, beciiuse certain implied conditions in tiiiit particular province relating to the property in that province was a m. tter dealing with civil '-•ights in that province, and was not a matter overborne by the provision as to the regulation ot trade and commerce. That what- ever limitation was to be p>it upon " regulation of trade and commerce" you ought not to limit it so as to B.?f.A. ACT, s. 91 (2).— BANKING FACILITIES. 65 excImJe from the power of the Dominion Parliament any law re- lating io trade and coninierce which the Uominion considered nucesstiiy for the "peace, order, and good (Tovernnient of the country." It was unfortunate, hut the judges in Citizens' lustu'nnce Co. v. Parsons, wiien (ieiiling with the words " re- I'liliition of trade and commerce," only said, " It iiiai/ be they would incinde regulations of trade affect- iiiir the whole Dominion " ; there- fore what was of very considerable iiuportanee was left undecided. In Merchants' Bank of Can- ada r. Smith, Jan. 16, IHH3, 8 S. ('. 11. 512, held that the Domi- nion Act, 35 Vict. e. 5., which en- iipteil that hanks may takecertainn;- eeipts as collateral security for pay- ment of any debt which may be- come due to the hank under credit iipened hy the bank for the holder of such receipts, was infra rircs of the Dominion, as coming under liiinking and facilitating commerce, I iind (lid not constitute an inter- ferenee with the functions of the local legislature inider sub-sec. 13, i sec. 92, " property and civil rights in the province." By the New Brunswick Act, 1 50 Vict. c. 4. ss. 141, 144, provision I was made for the appointment and payment of inspectors whose special I duty it was io search out and prose- Icute all offenders against the Can- pin Temperance Act, 1H78. In e.r parte Whai.en, Tuck, J., iSIay 9, 1891, 30 S. C. N. B. 580, Ithe argument was, that the power Ito pass the Canada Temperance lAct, 1878, rested alone with the JPiirliament of Canada, as that Act laffects trade and commerce, and Itiiat the Legislature of New Bruns- jwiek had no power to puss an Act pliereby the people may be taxed |to carry into effect some of the provisions of a statute which is intra vires of the Dominion Par- UHment only. In other words, ptiflt to this Parliament is given m power to legislate exclusively Ttn "the regulation of trade and S 2340. commerce," and the " raising of *-^' /""'« money by any mode or system of ''"'^'''^• taxation," and that legislation which authorizes the appointment and paym(>nt of inspectors is in conflict with the exclusive rights of the Parliament of Canada, be- cause such legislation has relation to, and affects " trade and commerc*;." "The authorities who administer justice in the different provinces of Canada are charged to carry into effect the provisions of the Canaihi Temperance Act. Therearefinesand imprisonment for violation of the Act, and in that respect it is part of the criminal co(le of Canada. Police magistrates and police con- stables, appointed and paid by the local authorities, administer this law as they do the other criminal law of Canada ; and no one for a moment supposes that local legis- latures acted beyond their powers when they authorized the appoint- ment and payment of such officers. This Liquor License Act has been attacked l)efore, notablv in Danaher r. Peters, 14 June 1889, 27 N. B. Rep. 554; 17 S. C. B. 44, as being beyond the jurisdiction of the local legislature ; but both this Court and the Supreme Court of Canada on appeal liav(> affirmed the right of the Legislature to pass 50 Vict. c. 4., not on thi? point now under consich'ration, but upon otheis where it seems much more open to atta(!k. It seems to me that the only object of this Legis lature is to carry into effect and ensure the enforcement of the Canada Tempeiance Act. For this purpose inspectors are to be appointed and paid." His Lord- ship continued that it required a good deal of straining to con- strue that as an interference with Canada's exclrsive right to legis- late upon "tratle and commerce." And he cited Sir Montague Smith's definition of this sub-.sec. in Citizens' Insurance Co. r. Par- sons [see sub-sec. 13, sec. 92], that the words "include political ar- rangements in regard to trade re- E V i \l L 66 li.NA. AC'I', s. 91 (3).— BKKWEKS IX QUEBEC. Ex parte Whalen. Daxaher I'. Peters. ill s MOLSON I'. Lambg. LoNuuEir, Navigation Co, V. City or Montreal. quiring the sanction of Parliament, regulation of triulo in matter.s of in- ter-provincial concerns, and it may be that they would include general regulation of trade affecting the whole Dominion " ; and held that the Act under consideration did not conflict with the power of the Do- minion Parliament to legislate upon the subject of sub-sec. 2. In Daxahek /•. Peteks, 27 S. C. N. B. 554, June 14, 1889, 17 S. C. K. 44, it was held that the Legisla- ture of N(!W Brunswick, by the New Brunswick Liquor License Act, 1887, 50 Vict. c. 4., could pro- perly impose the conditions that applications for licenses must be en- dorsed by the certificate of one-third of the ratepayers of the di.strict for which the license was asked, and that no holder of a license should be a member of the municipal council, a justice of the peace, or a public school teacher, and that the Act was not ultra vires the local legis- lature as being a jjrohibitory mea- sure by reason of the ratepayers being able to pievent any licenses being issued, nor was it a measure in restraint of trade by atHxing a stigma to the selling of liquor. In MoLsoN (". Lambe, 1 ilon. Sup. C. 264; 2 Mon. Q. B. 381 ; in S. C. March 15, 1888, 15 S. C. R. 253, Severn's case \_see. p. 52] was not followed, and it was held that brewers must take out a license in Quebec under the provincial Act, 41 Vict. c. 3., although duly licen- sed as a brewer under the Dominion Parliament Act, 43 Vict. c. 19. In LoMJUETL Navigation Co. r. City oe Montreal, Dec. 15, 1888, 15 S. C. R. 566 ; reported below, 3 Mon. Q. B. 172, it M-as held that the provincial Act of Quebec, 39 Vict. c. 52., imposing a tax on ferry (3.) The raising of money by any mode or system of taxation.^ ' >S of opinion that no ob- jection to the validity of the Act is to bo found in the sub-section in question " ; sub-see. 10 (o) see. 92]. "Another question has been laispil for tlio first time at this Bar (for the olijecioi. ri .,..■ ^ot apijcar toliavo h'kv, ■■■ Court), vi'het', ■ the p''oviii jui' if Act hy wliicc, f as this could i ':>■ .ue Colonial i- was power in ii urc to pass ar. fin assessment nviiiosed on the town of St. Stephen." " It has been argued that whereas die 91st section reserves to the Par- liament of Canada exclusive power ot legislation in respect of, amongst other subjects, ' the raising of i>ow v. Black. money by any mode or system of taxation,' the only qualifications im- posed on that general reservation are to be found in the 2nd and 9th suli-secs of sec. 92. The latter has obviously no bearing on the present question. As to the former, it was eontt^nded that it authorizes direct taxation only for the purpose of raising a revenue for general pro- vincial purijoses, that is, taxation incident on the wl ole province for the general purposes of the whole province. Their Lordships see no reason for giving so linnted a con- struction to this elau.se of the sta- tute. They think it nnist be taken to enable the provincial legislature, wdienever it shall .see fit, to impose direct taxation for a local purpose upon a p.articular locality within the [jrovince. They conceive that the sub-see. 3 of sec. 91 is to be reeoncile E. Smith, in giving judgment in Citizens' Insurance Co. r. Parsons, in courts below, 43U.C.Q. B. 261; 4(). A.K.96; 4 S. C. K. 215 ; in 1>. C. Nov. 2(5, 1881, 7 App. Cas. pp. 96, 108; 51 L. J. P. C. 11; 45 L. T. 721 [post, sub-see. 13]. .said: "So 'the raising of money by any modt; or system of taxaiion' is enumerated among the classes of subjects in sec. 91 ; but, though the description is sufficiently large and general to include ' direct taxation within the province, in order to the raising of a revenue for provincial purposes,' assigned to the provincial legisla- tures by [sub-sec. 2] sec. 92, it ob- viously could not have been intended that in this in.stance also the general power should override the parti- cular one. With regard to certain classes of subjects, therefore, gene- rally described in sec. 91, legislative power may I'eside as to some matters within the general description of these subjects in the legislatures of the provinces." In Toronto B.\nk and the other three cases r. L.vmbe, in Q. B., Quebec, 23 Jan. 1885; in P. {'. July 9, 1887, 12 App. Cas. pp. 575, 585; 56 L. J. P. C, 87; 57 L. T. 377 [see post, sec. 92, sub-sec. 2], the Quebec Legislature had taxed every bank, insurance company, and incorporated company carrying on business, accepting risks, or trad- ing, &c., respectively in the pro- vince of Quebec, banks paying a tax on the paid-up capital, and an udditional sum for each place of bu.siness. Insurance companies were taxed in a sum specified in the Act. The Judicial Committee held this Act was within the power of sub- sec. 2, sec. 92, and was intra vires. Lord Hobhouse, in giving judg- ment, said : " It is impossible to give exclusively to the Dominion Toronto Bank and the other three cases I). Lambk. the whole subject of raising nionnv by any mode of taxation, and at the same time to give to the pro- vincial legislatui'cs, exclusively or at all, the power of direct taxation for [)rovincial or any other pur- |)oses. Tiiis very conflict Ijctwecn the two sections was noticed l)v way of illustration in the case of Parsons " [and his Lordship quotpil the passage from Parsons' case given al)oye] ; and said their Lordships " adhere to that view, and held flint as regards direct taxation within the province to rai.se revenue for pro- vincial ptu'poses, that subject i'lills wholly within the jurisdiction of the provincial legislatures." The Judicial Committee, July 5. 1878, in Attorney-General for Quebec v. Queen Insur.vnce Co., in Q. B., Quebec, 14 Dec. 1877, 27 L. C. .1. 77; in P. C. July 5,1878, 3 App. Cas. 1090; 38 L. T. 897 [see post, sec. 92, sub-sees. 2 and 9, pp. 119, 126], held that tlie Quebec Act, 1875, 39 Vict. c. 7,, which merely provided that the price of a license, which all assurci'.* except marine must take out, should be an adhesive stamp affixed to tlie policy or receipt or renewal — tlie amount of the stamp to be in «iso of fire ? i)er cent., and 1 per cent, for other assurances, on the pre- miunis paid — was not within ti:e ))ower of the provincial legislatnre under sub-sees. 2 and 9 of sec. 92. Inland Revenue. — Hehl tlmt the 156th .section of the Dominion Inland Revenue Act, 31 Vict. c. 8, by which the Dominion Parliament conferred jurisdiction on the Vice- Admiralty Court, N. S., in proseeu- tions for penalties and forfeitures incurred thereunder, was intra vires the Dominion, notwithstand- ing such court is established in Canatla by Imperial authority, Attoi'nev - General of Canada r, Flint, 3 S. C. N. S. 453, in S. C. Jan. 16, 1884, 16 S. C. K. 707 ; sec also Valin r. Langlois. 3 S. C, R. 1 ; 5 App. Cns. 115; B.N. A. ACT, s. 91 (4)-(7).— MILITARY DEFENCE. 69 49 L. J. P. C. 37 ; 41 L. T. (502 [ante, .sec. 41]. Hcniv, J., said : " Although tlu; Vic'e-A(hnimlty Court is p.'itiiblishcd by tiic authority of Euyhind, still I SCO nothing to ])revcnt the Par- linmciit of Canada, inasnuich as tlint Court sits witliin the jurisdic- tion of that Parliament, to giw it powir and authority to try Inland Ki'Vi'iuif cases or cases connected with tiic Customs. I would say, liowovcr, I do not think that Court coiilil lie obliged to perform such (lutv, and that it i.s a Court which might very well wrap itself up in its authority, and say, ' Our other duties prevent us from a.ssuming tiic functions a.ssigned to us hy the Pni'liiuncnt of Canada ' ; but it is reailv to ado])t the duty, and I see no reason why the Parliament of Canada should not have the power to impose it." See Imperial Colo- nial Courts of Admiralty Act, 1890, 53 & 51 Vict. e. 27. s. 3. Reference may be made to the United States Constitution. There Congress has special and enume- rated powers. In the Dominion Inland Constitution it is the provinces Kevenui that have special and enumerated powers. For instance, the U.S. Congress has not an unlimited power of taxation. It has been held to be limited to .sjiecific ob- jects. No doubt, to nuike grnm- nuir of the 1st ehuise of the 8th section of the U.S. Constitution, aiul to give it at the sanu- time a (pudifying .sense, the words " in order " have to be inserted in that section. See vStory, Const. U. S. 908. A .sample of this limited power was given on 21 May 1895, when the Supreme Court, U. S., by the majority, composed of Ful- ler, Field, Gray, Brewer, and Shiras, JJ., were against the legal- ity of the income-ta.\ on rent and personal property imposed by the Tariff Act, 1894, .ss. 27 to 37, on the ground that it was a direci, tax and therefore unconstitutional. The judges in favour of the mea- sure were Harlan, White, Brown, and Jackson, JJ. (4.) The borrowing of money on the public credit.^ (5.) Postal service.'^ (6.) The census and statistics.'^ (7.) Militia, military and naval service, and defence.^ ' Sec American Constitution, i art. 1. s. 2. - Sec American Constitution, ml 1. s. 7. The Minister of Justice, 2 Jan. 1873, while allowing a British I Columbia Act respecting registra- Ition of births, deaths, and mar- jiiii^'esin that province, desired to Icall attention to the fact that the jAct might be questioned as being Iconncctedwith "statistics." Prov. |Lig„186G, p. 715. ' See American Constitution, |«rt. l.ss. 12 (Army), 13 (Navy), |l5 (Militia). The Dominion having the ex- clusive right of legislating as to all matters coming under this head, and any part of the land in a province, might be taken by the Dominion Legishiture for the pur- pose of military defence. But be- cause this jjossibly might be done is no reason for holding that an Act of the provincial h'gislature whore the land is situated, dealing with the land in a local and private manner, is ultra vires. See Lord Selbornc in L'Union St. Jacques de Mon- treal V. BMisle, 15 L. C. J. 212, in Q. B. Quebec, 20 Sept. 1872; in P. C. July 8, 1874, L. R. G P. C. p. 37; 31 L. T. Ill; 22 W. R, 933 [post, sec. 91, sub-sec. 21]. M 70 B.N.A, ACT, s. 01 (S)-( 10).— NAVIGATION & SHIPPING. Rbo. t'. CoLLEdE OK Physicians. liKVnOlION V. CoilPOHATION OF Ottawa. ■i" ii;; In Reg. v. Com-ege ok Physi- cians, Ontario, Dec 27, 1879, 41 U. C. Q. B. p. 57fi, Hiisiirty. C\J., heldtlint tho B. N. A. Act, when il speaks of any ('xclusivi' right, it means exclusive as opposed to iinv attempt to legislate by the Donii- nioii PniTiament. And see Note, sul)-sec. 23, sec. 91. (8.) Tli(3 tixiiig of and providiiiij,' for the salaries and allowance's of ciA'il and other officers of the Governmenv' ol' Canada,^ (9.) Beacons, buoys, lighthouses, and Sable Island." (10.) Navigation and shipping.' 1 Compare \vithsul)-sec.-l,sc'e.92. A tax by or through a pro- vincial legislature upon the means by which the Dominion Govci'ii- nient is carried on is Mltra vires. In Leprohon i'. Corporation oi^ tlie Citv of Ottawa, 30 March 187H, 2 6. A. K. [Tapper] 522 ; lower court, 40 U. C. Q. B. 478, reversed, held that a provincial legislature has no power to impose a tax upon the official income of an officer of the Dominion Government or to confer such a jiowei- on tho nnnii- cipalities. Spragge, J. : The raising of money is necessary for the ilue and effectual working of municipal institutions, and tlie giving to them the j)ower to raise money liy taxing inhabitants of the municipality foi' municipal purposes would .seem to he within the power of the pro- vincial legislature. "There is at the same time an implied limita- tion upon every power confei-red, wliether conferred in terms or l>y implication, that it must not encroach upon or interfere with the powers conferred idsewhere." " What the Legislature of Ontario has done has been to declare in- come to be personal pio])erty and to make land and personal propeity liable to taxation for municipal purpo.se8; at first continuing an exemption then upon the statute lx)ok, and then by a subsequent Act of 1871 abolishing that ex- emption, leaving incomes of Do- minion as well as provincial officers liable to taxation as a spetiies of personal property." " I premise if tiie i)rovincial legislature caiuiot do indirectly what it cannot do directly, if it cannot impose ii direct tax upon public salaries, Dominion as well as provincial, it cannot empower municipalities in do so." It would l)e within tin competency of a j)rovincial Icpi^- lature under sub-sec. 2, sec. [)'l [Direct Taxation], to impose ny;m rata tax upon all salaries given to prochicial officers. It would bo hi because it would lie acting on thoM' over whose .salary they have coii- tiol. But suppo.se such a tax im- posed u[)on the ,'ialaries of .'ill otlicei's of Government, Doniiiiioii as Well as [)rovincial, it woulil niix' a Aery different (piestion. It would impose a bui'den upon the .saliirv of the Dominion officer. It was hehl in Evans r. Hiidnn, 29 Dec. 1877, 22 L. C. J. 26s, that a local Act of Quebec Legis- lature was unconstitutional, wiiicli declared seizable the salaries of em- ^ ployees of the Federal Goveriinient. 2 Keferrcd to in L'Uniou Si, Jacques ile Montreal r. Belislc, 15 L. C. J. 212, in Q. B. Qnelm, 20 Sei)t. 1872; in P. C. Jnlv .S 1874, L. K. 6P. C. p. 37; 3i L. J. Ill; 22 W. B. 933 [poiit,m. 92, sub-sec. 16]. '■^ This conferred on the Parlia- ment of Canada lcgislati\eauthoriK over all matters occurring in Gana- B.X.A. ACT, s. Ul (11), (12).— DOMINION & FISHERIES. 71 (linn wnlei's within tli(> siilijcct N'nvi^atioii inni Siii|i|)iii^, iiiid its ro-o[)onition wa.s rciiiiirctl to i;i\c eti'ect to liie saini- riiU's of ntivifjii- tioii ns liiis lipon ii.sed in Eiijflimd. Sfc " EiizH Kfitli," April 1H77 ; ?^ Q. L. R. I4;5. Tiierc the Ciiriii- (iiiin Act ol' 1S(5H, HI Vict. c. 58., wiiicli provided tiiiil wiiere two siiips were each to hlanie for u eol- lisidii ill Ciniadian waters hotii were prccliidcd I'loin reeovei'ing its dani- i[i'c to coiitiniie until altcicd B. N. A. Act, sect. 129. Kildiir, C..I. said (p. of 11. 126) : "Tliem,. gra"'ed lands in the province di Nn • Mrunswiek lieing in the Crown for the lieiieiit of the people of Xcw Brunswick, the cxclusi\f right l(, fish follows as an incident, unit it in the Crown as a trustee for the benefit of the people of the ])ro- viiice exclusively, and thereioif u license by the ilinister of Mariin' and Fisheries to fi.sh in streiiiib running through provincial pni- perty or private lands is illegnl, and conseipiently the lease or liceiiw issued to the suppliant is null and void." (p. 119) "To all general ln\\> pas.sed by the Dominion of Camulu regulating 'sea coasts and inland fisheries' all nmst submit, but siicJi laws must not conflict or eonipetc with the legislative power of the local legislatures over property unii civil rights beyond what may be necessary for legislating gene- rally and effeetiially for the regu- lation, protection, and jjreservation of the fisheries in the interests of the public at large. TherefoiT, while the local legislatures have nn right to pass any laws interfcriii;; with the regulation and protection of the fisheries as they might Imvc passed before confedei'ation, tliev clearly have a right to pass any Inws affei'ting the pro))erty in those fish- eries. " In this opinion Stronj;, J,, eonciuring, said (p. 133) : "By sub- sec. 13 of s(;c. 92, the exclusive rifrlii to legislate concerning property i> conferred upon the local legisla- tures, to whom also by the 16tlisuli- section are granted similar powi-is concerning matters of a local iiml private nature. These provisions must necessarily exclude the right of the Parliament of the Doniinioii to legislate to the prejudice of tlio rights of fi.shiug vestefl in the pro- prietors of beds of rivers and streams, unless we find in sec. 91. BN.A. aCT, s. 91 (12).— CJUEAT LAKE FISHERIES. 73 ilt'iiiiii"}; tlic powrr.s ol' tlu' Parliii- ini'iil.^oiiic »'.\i'<'|)ti(>ii to tile jjciicnil i.|Tci'f III' llu' \V(inl ' pi^opcrtv' m.h iii- cliidiiij; Micli II pnipricttirv rijilit." I'll,, suli-s.'c. 11>, svr. in, "l.y the siiifilc t'xpn'ssidii * inliinil fish- eries,' coiifcrrcd upon tlic I'lirlia- iiieiit of C'aiiiula no power ol" tiiiiiiin iiway c.xi'lnsivc rij^lits ol' tislierv vi'sU'il in pi'ivatc proprii-- tni> dl' n()n-navi<;al)!(' rivers, ami Miciii'.xfiii.'iive ri;;litM, Ix^infj; in everv seu.'ic of t lie word 'properly,' can only lie interfered with i)y tlie prdviiiciiil lej^islatnres in exercise (if the powers fjiven to tlieni liy llie provisions of see. !)2." "This lines not by any means leave the .>iiil)-i'lniise referred to in sec. 91 witlioni ell'ect, for it may well he idiisiderod as anthori/inn; Parlia- ment to pass laws for refjnlatinf; and (•onser\ation of all lislierie.s, inland as well as seu-eoast, liy enact- ing, for instance, that Hsh shall not lie taken dnrin<^ particular seasons, in order that protection may lie afforded whilst hrecdiny; prohiliiting ohstructions in asccnd- ini; rivers from the sea ; prevent- in;; the undne ilestrnction of fi.sli liy tnkinj; them in a. particnlur mannei', or with forliidih-n enrovineesas an incident of the ownership of the public domain, just as the timber and all other profits of the land ai'e so vested. These fisheries, although often in practice not eon- servi'd by the provinces, are cer- tainly not public fisheries open of common right to all who may choose to avail thenistdves of them, as is the cnse with regard to fisheries in tidal waters and the great lakes, but the provincial governments may, without special legislation anil in exercise of their right of jiroperty, restrict their use in any manner which may .seem expedient, just as freely as private owners might do. In short, the public have no more right in law to lake fish in uon-navigable rivers belonging to the province than they have to fell and carry away trees growing on the public hinds ; in the one instance, as in the other, such iiiterfercnces with provincial rights of proiicrty arc neither more nor less than illegal act.s of tres- pass." " The Crown lands are expressly a.ssurcd to the provinces, and these include the licds of all .streains as that now in question. Where it was intended to make an exception to the general terms of sec. 109, as in the case of property reserved to Canada by the 108th sec, and the power to assume lands or public i)roperty for the purpose of defence, sec. 117, we find such exceptions expressed in dear and distinct enactments. How, then, can it b(! jiresumed, in view not only of the 109th sec. but also of the 5th sub-sec. of .sec. 92, giving the provinces exclusive legislative powers respecting tlu! public lands, and that as to property generally in sub-sec. 13., sec. 92, that the Do- minion has the power to legislate respecting these fisheries incidental to the owner.ship of the provincial lands, or respecting any other dis- memberment of the right of pro- ,1 ' r 4 > ■ i -I I'S 74 B.N. A. \VT, s. 91 (1.3)-(lo).— PARAMOUNT ACTS. Rku. I'. KonERTSON. 8. i: perty in such Iiuids, if it is not conferred by tlu' clause in .sec. 91 respecting seu-coast and inland fisheries ? Not a single provision of the B. N. A. Act can be pointed to as conferring such powers of legislation except thftt just men- tioned, which, for the reasons al- ready given in c(jnsidering the i-ase of private owners, must be held in- applicable." "There are, of course, Hsherics of a different character from those in non-navigable waters to be founil within the limits of all the pi'ovinces — public fisheries, such as those in tidal rivers and in the great lakes of the western pro- vinces A question may arise whethe'- the provisions contained in sec. !)1 authorizes Parliament to empower the Crown to grant the ex(dusive rights in respect to such fisliories." But his Lordship did not decide that question. A like view of the !nw was taken by Fi.sher, J., in Stciidman v. ]{obertson, 1879, S. C. N. B., 2 Pugs. & Bur. p. 598. See Direct United States Cable Co. V. Anglo-American Telegra})li Co., Feb. 14, 1877, 2 App. Cas. at p. 116 ; IG L. J. P. C. 71 ; 3G L. T. 265, where Lord Blackburn held that th(^ Legislature of Newfound- land had the right derived from the Crown to give the use of a spot in C'onception Bay (a l)ay a\eraging 15 miles wide and about -10 miles from its head to the ]»romontory of Cape St. Francis) as if it were a .spot of dr} land of the island of Newfoun(iland. See the case of fi.shiug for salmon in the Bay of Chaleurs, more than three miles from shore. Mowat v. McFee, Junp 10 1880, 5 S. C. li. m. Prince Edward Island Legisla- ture, proposing to pass an Act for the preservation of the Alewives fisheries, the Mini.ster of Justice objected that the province could not now pass such an Act, nor poe- tinue the old Act in force, as itwns a matter delegated to the Dominion Parliament. Prov. Leg., 1886, 9lH. No restraint upon the ordinnrv rights of property, no tlerogiitioii from the fullest enjoyment of these right.s, can be inipo.sed l)y statute, <;xcept by express words. There- fore, where an inspector of fisheries acting under the Dominion Order in Council, 11 .fmie 1879, piis.sed in pursuance of sec. 19 of tlic Fisheries Act, 31 Vict. (Doui.) c. 60., in these words, " Fisiiini; for salmon in the Dondnion of Canada, excejjt under the authority of leases or licenses from the De- ])artnient of Marine and Fisheries, is hereby ])rohibited," went on tiie pro.sccutor's land .-ittiatod above the flow of the tide and seized his rod for fishing for salmon without a licen.se, it was held a trespass had been comndtted. Strong, J., saying, "Granting the Dondnion could make police regulations for preservation of salmon in the puldic interest and for preservation of fisheries, thiit neither explicitly nor by implication is the requirement of a license niiiile applicable to riparian owners i\> reganls hi.Mng in private streams." Venning v. Steadnian, March S, 1884, 9 S. C. R. p. 215. Tennant v. UNioy Ba.vk or Canada. (13.) Eerries between a province and any British or foreign country or between two provinces. (14.) Currency and coinage.* (15.) Banking, incorporation of banks,^ and tbe issue of paper money. ^ See American Constitution, provincial legislatures, yet the art. 1. s. 10. Dominion Act is the paramount - Although a Dominion Act may authority (Tennant v. Unmon clash with matter assigned to the Bank of Canada, in Ct. App. BXA. ACT, s. 91 (15).— ASSESSMENT on BANK NOTES. 75 Out., 8 Jan. 1892, 19 O. A. R. 1 ; in PC. Doe. 9, 189;^, P.O. [1891] A. C. 31 ; 03 L. J. P. V. 25 ; 09 L.T. 77-1) [sec sub-.sec. 13,.sef. 92] ; and warehouse receipt.s taken in security by a bank in tho course of the biisiuoss of banking arc matters coming witliin tlie class of subjects dei^cribed in sec. 91, sub-see. 15, and provisions made by the Domi- iiiuii Bank Act, R. S. C. c. 120. uliject of banking, or with the [lower of incorporating banks. In Mkhciiaxts' Bank v. Smith, Jan. 11), 1S84, 8 O. A. R. 15 ; 8 S. C. H. 512, 28 Grant, G29, affirmed hv Tennant v. Union Bank, it was hild tluil a receipt given l)y a ware- li'iiiM'uiaii was a valid receipt within ilit'DoniiuionAct,34Vict.c.5.s.40, iiiid that tlmt Act was intra vires til'' Dominion Parliament under -uli sees.2iuid 15, sec. !)1 — Regula- 'ion of tnidc and eonnuerve ; and liaiiking, ttc. hi the Town ok Windsor v. t'oMMKRciAi, Bank ov Winujok, •J S. C. N. S. (3 Russ. and dcl- 'lert). 420, Weatherbe, J., held Thk Town or Windsor v. Commercial Bank of WiNDSOB. that "all property, except that of the Dominion or the pro- vinces (see .sec. 125) may be made eipially liable to assessment for munici]ial purpo.ses by provincial legislation," and therefore, in the case of a bank doing business under the General Banking Act of the Dominion of ('anada in the town of Windsor, which ludd, in addition to real and oth ^jersonal property, notes of the Dominion of Canada as a portion of its cash reserve as required l)y the Act relating to banks and i>anking, it was decided the assessors for the town of Wind- sor were ri";ht in assessing; on the Domunon Canada notes, th<'y not being the property of the Dominion. See Lawless v. Sullivan, 3 S. C.R. 117, March 22, 1881; Wheeler's P. C. Law, 958 ; ^^ Apj). Cas. 50; L. J. P. C. 33 ; 44 L. T. 897, which was a tax by the legislature of New Brunswick on the amount of income received, whether by foreign companies or not, doing business in the city of St. John. It was held, reversing the S'lpreme Court, that the tax Avas payable on the income after deducting los.ses for the fiscal year ; that income, when apj)lied to a commercial business for a year, meant its natural and com- monly accepted sonse, the balance of gain over loss; and, consequent- ly, where no such gain had been made in the iiscal year, there was no income ca])able of being asses.sed. Li QuiuT r. The Queen, Nov. Qvirt v. Thk 16, 1891, 19 S. C. R. 510 ; 17 Out. ^^'•''''''■ App. R. 421 ; 17 Ont. R. G15, the Sui)remc C'ourt held valid two Acts of the Dominion Parlianu-nt. The first Act incorporated trustees to carry on the business of the Upper Canada Bank — then insolvent — ,so far as necessary for win("iiig it up ; and the second Act transferred to the Dominion Government all the property of the bank vested in the trustees'. Sir W. Ritchie, C.J., held the Acts were valid as coming inider sub-sec. 15, sec. 91. Strong, J., held they were valid as coming t Mi >; h Lynch v. Thk Canada N. W. Land Co. 76 B.N.A. ACT, s. ni (16)-(19).— TAXATION OR INTEREST. QviRT V. The under sub-sec. 21, sec. 91, nnd his Lordship distinguished the judg- ment of the P. C. in Union St. Jacques r. Belisle, 15 L.C. J. 212, in Q. B. Quebec, 20 Sept. 1872; in P. C. July 8, 1874, 6 L. R. P. C. 31; 31 L. T. Ill; 22 W R. 933 [see Note, sub-.sec. 16, sec. 5)2], on the ground that the Act of the Quebec Legislature in that case was held valid upon the distinction expressly taken in the judgment that it was not an Act providing for a winding-up, as in the case of bankruptcy or insol- vency, but was rather an enactment designed to a\oid such a result. And his Lordship, while saying the Dominion Acts in question might be said to be special and not general laws, and therefore were to he con- sidered as assigned to the provincinl legislature, under sub-sec. 16, sec. 92, the answer to that was that niiv matter coming within the sulijecis enumerated in sec. 91, although in other respects it might be clns?«l under the head of local and private legislation, was expressly excepted from the powers of the provincial legislatures by the last sub-cl«usf (29) of ,sec. 91. (16.) Savings banks. (17.) Weights and measures.* (18.) Bills of exchange and promissory notes.^ (19.) Interest.'^ 1 A section of a Manitobia Act provided for bye-laws appointing inspectors for visiting places where weights and measures were used, and for seizing and destroying those not according to the standard. It was doubted whether this legis- lation eouhl be passed l)y the legis- lature of a juovince. Pro\ . Leg., 1886, p. 605. " It would have been unnecessjuy to specify this class of contracts if authority over all contracts, and the rights arising from them, had be- longe interest for delay, and consequently ultra vires of the provincial legis- lature. On the other hand, it was maintained "interest" in sub-set'. 19, sec. 91, as to which the Do- minion Act can only legislate, i< intf'rest on commercial matters auJ meant merely the rate of interest, and sub-sec. 19 could not lie held to apply to municipalities denliiig with taxes, the additional tiix not lieing interest, but a penalty iu the way of an increased tax. Sir W. Ritchie, C.J., said, reversing tbe decision of Q. B. Man. [Taylor, C.J., Killam and Bain, JJ.J; B.X.A. ACT. s. 91 (19) -TAX FO« DELAY 77 i'lt is obvious that the matter of interest which was intended to be (Ipiilt with liv the Uouiinion Parlia- ment [K. S.C. <•. 127. P. 2], was in I tonncction with debts originating ill pontrnet, and tliat it was never intended in any way to confliet [with tlie right of the local legis- liitiire to deal with uiunicipal in- Istitiitions in the matter of assess- ments or taxation, either in the nianner or extent to which the local legislature should iinthorize such assessments to be made, but the intention was to prevetit in- dividuals under certain circum- htances from contracting for more than a certain rate of interest, and fixing a certain rate when interest was pavnblo by law without a rate I having been named. [Reads B. S. JC. e. 127. s. 1.] It is abundantly Iclear that taxes are not contracts Ibetween i)arty and party, either [express or implied, but they are Ipaiitive acts of the Government |through its \ arious agents binding Qpon the inhabitants, and to the Imaking and enforcing of which Itlieir personal consent, individually, ps not required. [Cites Meriwether Garrett, 102 .S. C. U. S. 472, 573 ; Lane Countv r. Oregon, 71 S.C. r. S. (7 Wall) 71, 80]. In liis case I can see no linutation vith respect to nmnicipal matters, vhich necessarily embraces the lewiug of taxes for municipal pur- oses and therefore falls within bne of the classes of subjects enu- nerated in sec. 92, and assigned lxelusi\ely to the legislature of he [)rovinees. Does not the coUo- atiou of sub-see. 19 ' interest ' with he classes of subjects as nund)ered, |8 M)ills of exchange,' and 20 [legal tender,' afford a strong indi- Btion that the interest referred to •connected in the mind of the fegislatnre with regulations as to y rate of interest in mercantile nnsaetions and other dealings lid contracts between individuals, |>'l not with taxation under muni- pnl institutions and matters in- dent thereto ? The present case Land Co. does not dcjal directly or indirectly Lynch c. Thk with matters of contract. The Do- Canada N. W. minion Act expressly deals with interest on contracts and agree- nu-nts, as the lirst section con- clusively shows." The Manitoba " Legislature was not dealing, or professing to deal, \vith the question of interest, but was dealing exclu- sively with taxation under muni- cipal in.stitutions, and the extra tax which the court below has chosen to call interest the legi.shittu'e has not so denominated, but which the legislature imposed, no doubt, as I have said before, as a means of securing payment, and also of ap- proximately equalizing the rate be- tween defaulters and those paying promptly. How can this be con- sidered in any other light than as incidental to the power to le\y the assessment as authorized by law, the principal nmtter of this Act being municipal taxation and not interest, and so prevent the defaulter from gaining an undue advantage o\er the ratepayer who pavs promptly ? And who more com- petent to apportion this than the local legislature, and who more iiicom[)eteut to deal with tins purely municipal matter than the Dominion Parliament, charged with the affairs affecting the peace, order, and good government of the Dominion ? Tiie B. N. A. Act giving the power of legislation over direct taxation within the provinces in order to the raising of a revenue for provincial purposes, and over municipal insti- tutions in the provinces, exclusiv ely to the provincial legislatures, why should tho.se bodies be restricted or limited as to the manner or extent to which those powers should be exer- cised ? Why should they not be al- lowed to provide for the contingency of a failure to pay the taxes on the (hiys and times ti.xed, and to make pro\ ision in such an «'vent for an a(Ulitional rate or tax." Appeal al- lowed. Strong, Fournicr, Tascher- eau, and Patterson, JJ., concurred. Gwynne dissented. Ross !•. Tor- rance overruled. 2 Legal News, 186. 78 B.N. A. ACT, s. 91 (20), (21).— PROV. BANKRUPTCY ACTS B BX.A. (20.) Legal tender.! (21.) Eanki'uptcy and insolvency.^ Att.-Gen. of Ontario v. Att.-Oen. ok Dominion. 1 The snb-seetion following sub- sections 18 and 19 shows that the mind of the legislature in placing these under the direction of the Dominion Pnrlininent, intended to give that parliament power to regu- late them as to dealing and contracts between individuals and not under nuinicipal institutions. Sec ahorr, Ritchie, C.J., in Lynch v. I'he Canada N. W. Land'Co. ^ See Constitution of Aineiica, art. 1. s. 4. A Dominion Parliament Act re- hiting to bankruptcy is intrn vires, although it may interfere with pro- perty and civil rights in the pro- vinces, inasnmch as bankruptcy and insolvency form one of the classes of matters eniunerated in this sub-sec. Cushing r. Dupiiy (see p. 80) ; followed in Tennant r. Union Bank of (^uiada, in C. App., Out., Jan. 8, 1802, 10 (). A. R. 1; in P. C. Dec. 9, 1893, [1894] A. C. 31 ; 03 L. J. P. V. 25; 69 L. T. 77). Where there is no Act of the Do- minion Parliament in existence as regards banki'uptcy and insolvency, the provincial legislatures may deal with ancillary provisions to i)revent the scheme of a provincial .system of bankruptcy legislation being de- feated ; and it may be necessary to deal with the effect of executions and other matters,andthepi'o\ incial Icgislat ures have f ul 1 power t o do this until a Dominion Act is in existence dealing with such matters as part of a bankruptcy law ; and on that taking place, the provincial legis- lature would be precluded from interfering with that legislation, in- asmuch as such legislation would affect the Bankruptcy Law of the Dominion. See Att.-Gen. of On- tario v. Att.-Gen. for Dominion of Canada, in Ct. App., Ont., 9 May 1893,20 0. A R. 480; in P. C. February 24, [1894] A. V. ISO; 63 L. j; P. C. 59 ; 70 L. T. 538, in which case the validity of B, S O., 1887, c. 124., 'An Act respect- ing assignments and preferences bv insoh ent persons,' was raised. Sec- tion 9 enacted that 'an assignmeui for the general benefit of creditor? under this Act shall take precLMlenw of all judgmentsandof all executions not completed by j)ayment, subject to the lien, if any, of an execution creditor for his costs, where tlicn is but one execution in the sheriff. hands, or to the lien, if any, of tin creditor for his costs, who has tlii lirst execution in the sheiiU'j hands.' In the Ontario Court ii was held by Hagarty, C.J., ami Burton, J. A., that the Act w> ultra vires. MacLennan dis.sented, and 0.sler, .IJ.A., gave no opinion. Lord Hei-schell, L.V., in deliver- ing a reversing judgment [at wliicli w<'re also present Lords Watson, Macnaghten, and Shand, and S\t \ Richard Couch], and after (leniin» with the history of the legislation in relation to this and cognate niattii- both in the provinces and in tlie Dominion, said : " Their Lor(lsLi|i! j proceed uow to consider the inituiv of the enactment said to lie iillni vires. It postpones judgments ami executions not completely execiiteJ by payment to an assignment lor benefit of creditors under the Act Now there can be no doubt tiiat the effect to l)e given to judginent* and executions and the manneiiiuil extent to which they may be made axailalile lor the recovery of debts are prima facie within the legis- lative powt'i'ofthe provincial pmiia- nient. Executions are a part of the machinery by which debts are reco\ ered, and are subject to regu- lations by Parliament. A creditor has no iidierent light to have lii< debt sjitisfied by means of a levj by the sheriff, or to any priority in respect of such levy. Tiie exe- cution is ii mere creature of tlif law which may determine ami BX.A. ACT, s 91 (21).— WHERE NO DOMINION ACT. 79 irgiiliitt! the rights to which it crivcsrise. The Act of 1887, which abolisliPil priority hs niiioiij^st exe- cution creditors, provided ii simple means by whicli cNory creditor niidit ohtaiii a share in the distri- |)iition of moneys levied under an execution by any particular (rredi- tor. The other Act of the same year, containing the section which is impeached, goes a step further, and ffivcs to all creditors under an assignment for their general benefit a right to a rateable share of the assets of the debtor, including tliose which have been seized in execution. But it is argued inas- much as this a.ssignment contem- plates the insolvency of the debtor, and would only be made if he were insolvent, such a provision purports to ileal with insolvency, and there- fore is a matter exclusively within the juri.sdiction of the Dominion Parliament. Now it is to be ob- served that an assignment for the general benefit of creditors has long been known to the juris])i-udenceof this country and also of Canada, and has its force and effect at com- mon law (juitc independently of any sy.stoni of bankruptcy or insol- vency or any legislation relating thereto. So far from being re- ^'arded as an essential part of the liankruptcy law, snch an assign- ment was made an act of bank- ruptcy on which an adjudication might be formed, and by the law of the province of Canada which prevailed at the linn, when the Dominion Act was passed, it was one of the grounds of an adjudica- tion of insolvency. It is to l)e ioliserved that the word ' bank- Iruptcy' was apparently not used I in Canadian legislation, but the I insolvency law of the province of I Canada was precisely analagous to jwhat was known in England as jthe bankruptcy law. Moreover, the operation of an assignment jtiir the henefit of creditors was Ipreeisely the same, whether the l«s«ignor was or was not in fact linsolvent. It was open to any debtor who might deem his insol- Att.-Gen. of vency doubtful, or who desired in "^'tabio v. that ca.se that his creditors should i\";i^,y^." *"' lie equitably dealt with, to make an assignment for their benefit. The validity of the a.ssignment and its effect would in no way depend on the insolvency of the assignor, and their Lordshii)s think it clear that the 9th section would equally apply whether the assignor was or was not insolvent. Stress was laid on the fact that the enact- ment relates only to an assignment under the Act containing the sec- tion, and that the Act prescribes that the sheriff of the county is to be the assignee unless a majority of the creditors consent to some other assignee being named. This does not appear to their Lordships to be material. If the enactment would have been intni vires s\ip- posiug section 9 hail applied to all assignments without these re- strictiou.s, it seems difficult to con- tend that it becomes tiltrn vires by rea.son of them. Moreov<'r,it istobe observed that by sub-sec. 2 of sec. 3, assignment for the benefit of creditors not made to the sheriff or to other persons with the prescribed consent, although they are rendered void as against assignments so made, are nevertheless, unless and until so avoided, to be ' subject in other respects to the provisions of the Act'.' At the tinie when the B. N. A. Act was pas.sed bank- ruptcy and insolvency legislation existed, and was based on very similar provisions both in Great Britain and the province of Canada. The English Act then in force was that of 1861. That Act applied to traders and non-traders alike. Prior to that date the operation of the Bankruptcy Acts had been confined to traders. The statute relating to insolvent debtor.^ other than traders had been designed to proiide for their release from cus- tody on their making an assign- ment of the whole of their estate for the benefit of their creditors. It is not necessary to refer in de- Att.-Gf.n. op Ontario v. Att.-Gkn. cii- uomisiox. i! :? ! S CUSIIIN'U I'. Di-pcY. 80 B.N.A. ACT. s. 91 (21) —APPEALS TO P. tail lo tlio piovisioiiH of the Act of 18G1. Tt is enough to say that it ])rovi(l<'(l for a logai adjudication in bankruptcy, with the consequence that tlic hanki'upt was divested of all liis property and its distrihntion anionjjst his creditors was provided for. It is not necessary in their Lordships' oi)inion, nor would it lie expedient, to attempt to define what is covered by the words ' hank- riiptcv' and ' insolvency ' in section 91 of the B. N". A. Act. But it will be seen that it is a feature com- mon to all the systems of l)aid{- ruptcy and insolvency to which reference has been made, that the enactments are designed to secure that in the case of an insolvent person his assets shall be rateably distributed amongst his creditors, whether he is willing that they .shall be so distributed or not. Al- though i)rovision may be made for a voluntary assignment as an alternative, it is only as an alter- native. Tn reply to a (piestion put by their Lordsni])s, the learned counsel for tb(! respondent were unable to point to any scheme of bankruptcy or insolvency legisla- tion which did not involve .some power of compulsion by process of law to secure to the creditors the di.stribntion amongst them of the insolvent debtor's estate. In their Lor 'ships' opinion these con- siderations must be borne in mind when interpreting the words 'bank- ruptcy ' and ' insolvency ' in the B. N. A. Act. It appears to their Lordships that such ])rovisions as are found in the enactment in question, relating as they do to assignments purely volinitary, do not infringe on the exclusive legis- lative power conferred on the Do- minion Parliament. They would observe that a system of bank- ruptcy legislation may frequently require various ancillary provisions for th^ . •'• of preventing the scbv, '1 • <■ vxi being de- fe I . id '. necessary for th: ;> > ; O'- i ■ .....1 vith the effect of ciie' u'': : . • fher matters which wouhl otherwise be within the legislative competence of the provincial legislature. Their Lord- ships do not doubt it would Iw open to the Dominion Parliauiont to (leal with such matters as pint of a bankruptcy law, and the pio. \incial legislatures wotdd dou'llpss lie then precluded from interferiiif; with this legislation, inasmuch us such interference would affect tlio bankruptcy law of the Dominion Parliament. But it does not fol- low that such subjects as might properly be treated as ancillary to such a law, and therefore within the {)owers of the Dominion Pnr- liament, are excluded from tlu' legislative authority of the pro- \incial legislatiire when there is no bankruptcy or insolvency Ipgis- lation of the Dominion Parliaiiioni in existence." Decision appciilcii from reversed. [Sfc full r('|)oit, sub-sec. .'?, .see. 92.] CisirixG V. DiTPUY, in (^. B (Quebec, 22 Mar. 1878, 22 L. C. J. 201 ; in P. C. April 1.3, im\ o App. Cas. 409 ; 49 L. J. P. (.'. ().■? ; 42 L. T. 445, was an nppo.il from a judgment of the Quoon'* Bench, Quebec, revei'sing a judg- ment of the superior court, whicli had been given in the jippel- hint's favour, in certain in.sol- \ ency proceedings instituted imdir the Dominion Ac', respecting insol- vency, 38 Vict. c. 16. In these the appellant sought to obtain an order that the respondent, the official receiver on the estate of the insolvent Hrm, should deliver up certain pi'operty seized by him as such assignee under a writ of attachment, on the ground tlint it had been sold to the appellant by the insolvents before their insol- vency. The appellant made nii application to the Queen's Bench for leave to appeal to Her Majesty in Council, which was refused on the ground that under the Insol- vency Act its judgment was final. Bv the 1 28th sec. of the Insolvency Act," 38 Vict. (Dom.) c. 16., "In B.N.A. ACT, 9. 91 (21) —APPEALS BY PREROGATIVE. 81 the province of Quebec all decisions by a judge in chambers in matters of insolvency shall be considered as judgments of the superior court ; and any final order or judgment rendered by such judge or court may be mscribed for revision, or may he appealed from by the parties aggrieved, in the same cases and in the same manner as they might inscribe for revision or appeal from a final judgment of the superior court in ordinary cases under the laws in force when such decision shall be rendered." By the 28th section of the 40 Vict. (Dom.) c. 41 ., it is enacted that the 128th section shall be amended by adding thereto, " The judgment of the court to which under this section the appeal can be made shall be final." The court in the province of Quebec is the Queen's Bench. Sir Montague E. Smith, who delivered the judgment of the Privy Council [there being also present Sir James Colvile, Sir Barnes Peacock, and Sir Robert Collier] said : " An application to the Court of Q. B. Ontario for leave to appeal to Her Majesty in Coun- cil was rofused on the ground that under the Insolvency Act its judg- ment was final. The appellant . then presented a petition to Her Majesty for special lea^•e to appeal, which Her Majesty was advised by their Lordships to grant, reserving to the respondent power to raise at [the hearing the question of her jui'isdiction to enterttiin the appeal. I Tliat question, which has been i fully argued at the Bar, raises two I points : first, whether the Court of Queen's Bench Avas right in holding [that the appeal to Her Majesty in I Council, given rfe 7«re by art. 1178 of the Code of Civil Procedure, I from final judgments rendered on [appeal by that court is taken away jby the Insolvency Act; and, Isecondly, if that be so, whether Ithe power of the Crown by virtue lot its prerogative to admit the pppeal is affected by that Act." S 2340. [Reads 128th sec. Insolvency Act, Ccshino v. 38 Vict. (Dom.) c. 16., and sec. Dcpoy. 28 of the amending Act, 40 Vict. c. 41.] " The latter is, 'The judg- ment of the court to which, under this section, the appeal can be made shall be final.' This court in the province of Quebec is the Court of Queen's Bench. The whole , question turns on these added words, and in considering their effect on the right of appeal to the Crown given de jure by the Code, two things are to be regarded — (1) The power of the Dominion Parliament to abrogate this right ; and (2) if it had the power, whether it intended to exercise it. The first of these questions depends upon the con- struction of the B. N. A. Act, 1867, which confers and distributes legis- lative powers. By section 91 of that Act, exclusive legislative authority in certain matters is conferred upon the Parliament of Canada ; and by section 92 exclusive authority in certain others upon the provnncial legislatures. [Reads sec. 91 and sub-sec. 21 ; sec. 92 and sub-sees. 13, 14.] It was contended for the appellants that the provisions of the Insolvency Act interfered with pro- perty and civil rights, and was therefore ultra vires. This objec- tion was very faintly argued, but it was strongly contended that the Parliament of Canada could not take away the right of appeal to the Queen from final judgments of the Court of Queen's Bench, which, it was said, was part of the procedure in civil matters exclusively assigned to the legislature of the province. The answer to these objections is obvious. It would be impossible to advance a step in the construc- tion of a scheme for the adminis- tration of insolvent estates without interfering with and modifying some of the ordinary rights of property and other civil rights, nor without providing some mode of special procedure for the vesting, realization, and the distribution of the estate, and the settlement of the liabilities of the insolvent. Pro- ^1! 82 B.N.A. ACT, 8. 91 (21).— THE WOBD "FINAL." CUSHINO V. DUPCY. cedure must necessarily form nn essential part of any law dealing with insolvency. It is therefore to be presumed, indeed it is a neces- sary implication, that the Imperial .statute, in assigning to the Do- minion Parliament the subject of bankruptcy and insolvency, inten- ded to confer on it legislative power to interfere with property, civil rights, and procedure within the provinces so far as a general law relating to those subjects might affect them. Their Lordships therefore think that the Parlia- ment of Canada would not infringe the exclusive powers given to the provincial legislatures, by enacting that the judgment of th,e Court of Queen's Bench in matters of insolvency should be final, and not subject to the appeal as of right to Her Majesty in Coun- cil allowed by article 1178 of the Code of Civil Procedure. Nor, in their Lordships' opinion, woulil such an enactment infringe the Queen's prerogative, since it only provides that the appeal to Her Majesty given by the Code, framed under the authority of the pro- vincial legislature, as part of the civil procedure of the province, shall not be applicable to judg- ments in the new proceedings in insolvency which the Dominion Act creates. Such a provision in no way trenches on the Koyal pre- rogative." " Then it was contended that if the Parliament of Canada had the power, it did not intend to abolish the right of appeal to the Crown. It was said that the word ' final ' would be satisfied by holding that it prohibited an appeal to the Supreme Court of Canada estab- lished by the Dominion Act of 38 Vict. c. 11. Their Lordships think the effect of the word cannot be so confined. It is not reasonable to suppose that the Parliament of Canada intended to prohibit an appeal to the Supreme Court of Ap- peal recently established by its own legislation, and to allow the right of immediate appeal from the Court of Queen's Bench to the Queeu to remain. Besides, the word 'final' has been before used in colonial legislation as an apt word to ex- clude in certain cases appeals as of right to Her Majesty. [See Lower Canada Act, 3-1 Geo. 3. c. 6. s. 30] Such an effect may, no doubt, be excluded by the context, but tliere is none in the enactment in ques- tion to limit the meaning of the word. For these reasons their Lordships think that the judges below were right in holding that they had no power to grant leave to appeal. The question of the power of the Queen to admit the appeal as an act of grace, gives rise to different considerations. It is, in their Lordships' view, im- necessary to consider what powers may be possessed by the Pnrlia- ment of Canada to interfere with the royal prerogative, since the 28tli section of the Insolvency Act does not profess to touch it ; and thev think, upon the general principle that the rights of the Crown can only be taken away by express words, that the power of the Queen to allow this appeal is not affected bv that enactment. In consequence, however, of the decision in Cuvillier V. Aylwin, 29 Nov. 1832, 2 Knnpp'> P. C. 72, which has been relied on as an authority opposed to this view, it became necessary to review that case in connection with subse- quent decisions on the subject, The question in Cuvillier v. Ayl- win arose upon the Lower Canada Colonial Act, 34 Geo. 3. c. G. s.30, which enacted that the judgment of the Court of Appeal shoidd be final in all Cases under the value at £500, and an application for special leave to appeal in a case under that value was refused bv a Committee of the Privy Council. The remarki) attributed to the Master of the Rolls [Leach] in his judgment rejecting the petition are directed to one aspect only of the question, namely, the power of the Crown with the other BX.A. ACT, s. 91 (21) —CAIRNS, L.C., on PREROGATIVE. 83 ;he Court ^ueeu to ■d 'final' colonial rd to ex- eals as of Jee Lowfv . 6. s. 30.] doubt, lie , but there t in ques- ng of the isons their [be judges Dlding that ^rant leave ion of the J admit the rrace, gives ■rations. It ' view, iin- vhat powers the Pnrlia- itpvfere with incethe28tli icy Act does it; and they ,ral principle p Crown can by express of the Queen otaffectedhy consequence, n in Cuvillier ;2, 2 Knapp's een relied on osed to this iary to review 1 with subse- the subject, illier v. Ayl- ower Canada 3. c.G. 5.30, he judgment eal should be the value af dication for sal in n case refused by a •ivy Council tted to tbe each] in his [e petition are )ect only o! the pow« the other brandies of the legislature to de- prive tbe subject of one of his rights. No allusion was made to the principle that express words are necessary to take away the prerogative rights of the Crown, nor to the provision contained in tiic statute itself that nothing therein contained shall derogate from any right or prerogative of the Crown. This case, moreover, it' not expressly overruled, has not been followed, and later decisions are opposed to it. [See post, s.lOl.} "In re Louis Marois, 8 Feb. 1862, 15 Moore's P. C. 189, upon tin application for leave to appeal from a judgment of the Court of Queen's Bench for Lower Canada, Lord Chelmsford, in giving tlic judgment of this Committee, after stating that in Cuvillier v. Aylwin the very point was de- cided against the petitioner, said : ' If the question is , to be concluded by that decision, this petition must be at once dismissed; but upon turning to the report of the case, their Lordships are not satisfied that the subject received that full and deliberate consideration which the gi-eat importance of it deman- ded. The report of the judgment of the Master of the Rolls is con- tinued in a few lines, and he does not appear to have directly adverted to the effect of the proviso contain- ed in the 43rd section of the Act on the prerogative of the Crown.' Leave to appeal was granted in that caise, subject to the risk of a petition being presented to dismiss the appeal as incompetent. Al- though their Lordships, in granting this leave, said that they desired to intimate no opinion whether the decision in Cuvillier v. Aylwin could lie sustained or not, it is obvious that at the least they re- garded it as being open to review. Ill Johnston v. the Ministers of St. Andrew's Church, in the courts below, 18 L. J. C. 113; 1 S. C.R.235; in P. C.Dec. 10,1877, 3App. 159; 37 L. J. P. C. 557; 26 W. R. 359 ; upon an appli- cation for special leave to appeal Cushinq f. against a judgment of the .Supreme Dupijt. Court of Canada, the effect of the 47th section of the Act establishing that court, which enacted that its judgment should be final and con- clusive, saving any right which Her Majesty may be graciously pleased to exercise by virtue of her Royal prerogative, came in question, and the Lord Chancellor [Cairns], in giving the judgment of this Com- mittee, said : • Their Lordships have no doubt whatever that, as- suming, as the petitioners do assume, that their power of appeal as a matter of right is not con- tinued, still that Her Majesty's prerogative to allow an ajipeal if so advised is left entirely un- touched and preserved by this sec- tion.' Although leave to appeal was in this instance refused, on the ground that the case was not a proper one for the exercise of the prerogative, the opinion cited above is virtually opposed to the decision in Cuvillier v. Aylwin, where, it is to be remembered, the action in question likewise contained a saving of the prerogative of the Crown. Another case lately before the Committee requires consideration. Theberge and another v. Landry, in Superior Court, Quebec, 29 May 1876, in P. C. 7 Nov. 1876, 2 App. Cas. 102 ; 40 L. J. P. C. 1 : 35 L. T. 640. It was an application for special leave to appeal against a judgment of the Superior Court of Quebec upon an election pe- tition, by which the applicant had been unseated for corrupt practices. By the Quebec Controverted Elections Act, 1875, 38 Vict. c. 8., the decision of controvered elec- tions, which formerly belonged to the legislative assembly itself, Avas conferred upon the superior court, and by sec. 90 of the Act it was enacted that the judgment of that court sitting in review should not be susceptible of appeal. It was held by this Committee that there was no prerogative right in the Crown to review the judgment of F 2 I I! Cdshimo V, DOPOT. I illll L'Union St. Jacques db montbeal ('. Uelisle. i 84 B.N.A. ACT, s. 91 (21). -INSOLVENCY OF LOCALS, the superior court upon an election petition, and the application was refused. This decision turned on the peculiar nature of the jurisdic- tion delegated to the superior court, and not merely on the prohibitory words of the statute. It was dis- tinctly and carefully rested on the ground of the peculiarity of tho 8ubject-matter, which concerned not mere ordinary civil rights, but lights and privileges always regard- ed as pertaining to the legislative assembly in complete independence of the Crown, so far as they proper- ly exist ; and consequently, it was held that, in transferring the de- cision of these rights from the assembly to the superior ,court it could not have been intended that the determination in the last resort should belong to the Queen in Council. But whilst coming to this decision, the Lord Chancellor [Cairns], in giving the judgment of the Committee, affirmed tlie general principle as to the preroga- tive of the Crown. ♦ Their Lord- ships wish to state distinctly that they do not desire to imply any doubt whatever as to the general principle that the prerogative of the Crown cannot be taken away ex- cept by express words; and they would be prepared to hold, as often a& has been held before, that in any case where the prerogative of the Crown has existed, precise words must be shown to take away that prerogative.' It was not suggested that an appeal would not have lain to the Queen in Council under the Insolvency Act, 1875, and it was not until two years afterwards that the amending Act of 1877, which is said to have taken it away, was passed. The learned counsel for the appellant drew attention to the Act of the Parliament of Canada, 31 Vict. c. 1., which enacts rules of interpretation to be applied to all future legislation, when not inconsis- tent with the intent of the Act or the context. Sub-sec. 33 of sec. 7 of that Act is as follows : — * No pro- vision or enactment in any Act shall affect in any manner or way what- ever the rights of Her Majesty, her heirs or successors, unle.is it is expressly stated therein that Her Majesty shall be bound thereby,' The Insolvent Acts are to be con- strued with reference to this pro. vision, which is substantially an affirmance of the general principle of law already adverted to. Ap- plying that principle to the enact- ment in question, their Lordships are of opinion that, as it contains no words which purport to derogate from the prerogative of the Crown to allow as an act of grace appeals from the Court of Queen's Bench in matters of insolvency, her au- thority in that respect is unaffec- ted by it. The order for leave to appeal granted in the present case will consequently stand." His Lordship then went into the merits of the case, the result being the affirmance of the decision ap- pealed from. In L'Union St. Jacques de Montreal v. Belisle, 15 L. C. .7. 212, in Quebec Q. B. 20 Sept. 1872; in P. C. July 8, 1874, L. E. 6 P. C. 31 ; 31 L. T HI; 22 W. R. 933, it was held by the Judicial Committee, revers- ing the Court of Queen's Bench, appeal side, in Lower Canada, that the Act of the provincial legisla- ture of Quebec, 33 Vict. c. 58., to relieve the financial embarrassment of a local society, related to "a matter merely of a local or private nature in the province" within sec. 92 of the B. N. A. Act, 1867, and as such was within the legisla- tive capacity of the Quebec Pro- vincial Legislature, and did not fall within sec. 91 — Bankruptcy and insolvency. There the respondent sued the appellant society to recover an in- stalment of an annuity to which she was admittedly entitled under the rules of the society. The ap- pellant pleaded the provincial Act, m which the society was authomed to pay the respondent $200 in heu B.N.A. ACT, 8. 91 (21).— WINDING UP BY DOM. 85 of all benefits, and if she refused to iiccept it, to place it on deposit and |m,v the respondent the interest. The respondent contended that the Act was unconstitutional. Lord Selborne, in delivering the judgment of the Committee, said (p. 37 of L. R.) : " The fact that this particular society appears, upon the face of the Act, to have bten in a state of embarrassment, aud in such a financial condition that, unless rel'" ved by legislation it might have been likely to come to ruin, does not prove it was in any legal sense within the category of insolvency ; and, in point of fact, the whole tendency of the Act is to keep it out of that category, and not to bring it into it. The Act does not terminate the company, it does not propose a final distribution of its iissi is on the footing of insol- vency or bankruptcy ; it does not wind it up. On the contrary, it contemplates its going on, and possibly, at some future time, re- covering its prosperity, and then these creditors, who seem on the face of the Act to be somewhat summarily interfered with, are to be reinstated." On sec. 92, Lord Selborne said (p. 35): "The scheme of the 91st and 92nd sees, is this. By the 91st sec. some matters — and their Lord- ships may do well to assume, for the argument's sake, that they are all matters except those afterwards dealt with by the 92nd section — their Lordships do not decide it — certain matters, being upon that as- sumption all those which are not mentioned in the 92nd section, are reserved for the exclusive legislation of the parliament of Canada, called the Dominion Parliament ; but be- yond controversy there are certain other matters, not only not reser- ved for the Dominion Parliament, but assigned to the exclusive power and competency of the provincial legislature in each province. Among those the last is thus ex- pressed— ' generally all matters of R merely local or private nature in the province.' If there is nothing L'Uiiioii St. to control that in the 9l8t section, JAfocw db it wo)dd seem manifest that the 5°^"!™"'' *'* subject-matter of this Act, 3.3 Vict, c. 68., is a matter of mere local or private nature in the province, be- cause it relates to a benevolent or benefit society incorporated in the city of Montreal, within the pro- vince, which appears to consist exclusively of members who would be sahjectprimd facie to the control of the provincial legislature." . . . "Clearly this matter is private; clearly it is local, so far as locality is to be considered. . . . And unless, therefore, the general eflfect of that head of sec. 92 is for this purjxyse qualified by something in sec. 91, it is a matter not only within the competency, but within the exclusive competency of the provincial legislature. Now sec. 91 qualifies it undoubtedly, if it be within one of the different classes of subjects there specially enume- rated, because the last concluding words of sec. 91 — [reads the end of sub-sec. 29, sec. 91]. But the onus is on the respondent to show that this, being of itself of a local or private nature, does also come within one or more of the classes of subjects specially enumerated in the 91st section." See this case ap- proved in Dow V. Black, ante, p. 67. In Quirt v. The Queen, Nov. Qciht v. The 16, 1891, 19 S. C. R. 510, see 17 ^^^• O. A. R. 421 ; 17 O. R. 615, it was held the Dominion Parlia- ment was within its rights in pass- ing Acts (1) incorporating trustees and giving them (31 Vict. c. 17.) authority, so far as necessary for the winding-up, to carry on the Bank of Upper Canada, then insol- vent; and (2) transferring (33 Vict. c. 40.) to the Dominion Go- vernment all the property of the bank vested in the trustees. It was held, secondly, that after the property of this bank became vested in the DominioD Govern- ment, a piece of land included there- ij I 86 B.N.A. ACT, H. 91 (21).— WINDING-UP BY LEGHS. I Quirt v. The in wna not liable to taxes, it having QuBBN, become Crown land. Sir W. Ritchie, C.J., said : "I cannot see how it can be con- tended that an Act i'or the settle- ment of the affairs of the Bank of upper Canada, an insolvent insti- tution, is ultra vires of the Parlia- ment of Canada, to which body is confided the exclusive authority to deal with and legislate on banking, incorporations of banks and bank- ruptcy, and in.solvency. If this is so, I think it e«iually clear that the legislature of Ontario could pass no Act repealing, al- tering, or interfering with the pro- visions of the Act, and so could not have passed an Act similar in its terms to the 33 Vict. c. 40., ' An Act to vest in the Dominion, for the purpcses therein mentioned, the property and powers now ves- ted in the trustees of the Bank of Upper Canada.' Therefore, it necessarily follows that the legisla- tive power to do so belongs to the Dominion Parliament alone." Strong, J., rested his opinion on the 21.st sub-sec, see. 91. That sub-section " gives to Parlia- ment the exclusive power to pass laws relating to bankruptcy and insolvency. That the Acts of Parliament in question come within the literal meaning of these terms appears to me very plain. The bank was insolvent, and the realization and distribution of its assets was a matter consequent upon that insolvency. The only reasonable ground upon which such enactments as the.se under con- sideration could be rejected from the category of bankruptcy and insolvency statutes authorized by sec. 91, sub-sec. 21, would be that they were special and not general laws, and therefore were to be considered as assigned to the pro- vincial legislature under the 16th sub-sec, sec. 92, which authorizes legislation on matters of a local and private nature within the pro- vince. The answer to this, how- ever, is that any matter which comes wiwhin the terms of any of the subjects enumerated in sec. 91, although in other respects it iiiiglit be claased under the head of loiul and private legislation, is expressly ixcepted from the powers ol' tlii provincial legislatures by tin l;i:; sub-section of sec. 91. [Reads it] Then it is said this ela.ss of lo>;islii. tion is appropriated to tlie pro- vinces under tlie head of ' proporty and civil rights.' This argunu'iit, however, would prove too nuuli, since general legislation in matlci^ of bankrupty and insolvency, wiiitji .sub-sec. 21 undoubtedly confers on the Dominion, uuist always be nn interference with property, then it can hardly be said that such spttinl legislation as this respecting a Imnk incorporated under the statutes of the Dominion would be within the competency of a provincial legisla- ture ; the incongruity of such a construction, when we consider that the right to incorporate banks is exclusively in the Dominion, would alone be fatid to such con- tention, more especially as the Ail of Incorporation itself might will provide for the winding-up of n particular bank in cose of insol- vency." As to the case of Union St. Jacques v. Belisle [see above], his Lordship said : " So far from that being an authority for the appellant, it supports the conclUciion I have reached. The Act of the Quebec Legislature questioned in that case was held to be intra viret upon the distinction expressly taken in the judgment that it was not an Act providing for a winding- up as in the case of bankruptcy or insolvency, but was rather an enactment designed for the pur- poses of avoiding such a result. I therefore consider the Privy Coun- cil as indicating that a special stiitute providing for the winding- up of an incorporated company would be bankruptcy or insolvencj | legislation. Next it is said the in- terest vested in the Crown under | the mortgage made by Anderson is hable to taxation under the Ontario i;- ii i' IGIS. I of any oi in Bfc. 91, itH it uiiglit id of locul s expressly 'ers ol' tile Dy lu< ill;; [Rends it.] s of lp;iisln- the pio- E ' proi)tM'ty i urguuu'iit, too niiu'li, 1 in miittei> ency, wliicli y coufei's on ways be nn erty, then it such spi'ciiil icting a Imnk ! statutes of le within the ncial legisla- f of such a ,ve consider porate banks ! Dominion, to such con- ,y i\8 the Alt ' might wi'll liug-up of a (ise of insol- se of Union [see above], So far from rity for the he conclusion e Act of the questioned in be intra vim spressly taken it it was not r a winding- bankruptcy or ,8 rather an for the pur- h a result. I e Privy Coun- [lat a special the winding- ited company or insolvencj , is said the in- Crown tindei ay Anderson is der the Ontario B,N.A. ACT, 8. 01 (21).— INSOLVENT FOREIGNERS. 87 Assossiiieiit Act." His Lordship agreed it was not liable, and coii- tinuiMl: "All property vested in the Crown is exempt from taxation un- lcs.s made liable by some express en- iiclnicnt. Ncstatiite can be pointed to making the beneficial interest, which tbe Crown, as mortgagees, undoubt- ciliy had in these lands, liable to assessment for taxes, and that is suffi- cient to dispose of the case, I am also of opiniou, in the absence of express enactment, no difference ought to l)e made between property vested in the Crown as a trustee and that in which it had a beneficial iuterest. The Crown is entitled to tlip prerogative of priority of pay- me"* out of assets, even though it sues as n mere trustee, as in the case of an action on a recognisance given for the benefit of subj?cts, and I can see no reason why the analogy should not prevail in the present case. However, the Crown is fur from being a mere trustee in this case. The statute of 1870 (33 Vict. c. 40.) I'ecites that it is the largest creditor ; it therefore has a heneficial interest in the assets of the bank." In Allen v. Hanson, Dec. 11, 1890, ap[)ciil iVom Q. B., Quebec, 16Q.L.R.7!); lHS.C.R.667,itwas held the Dom. Winding-up Act, R. S. C. c. 129. (47 Vict. c. 39.), which provides that the Act " shall apply to incorporated trading companies doing business in Canada whereso- ever incorporated," and •' which are insolvent," was intra vires of the Dominion ; and that a winding-up order of the Scottish Canadian Asbestos Co. under the provision of the above Act was good. The company in question was incorpo- riUed under the Imperial Companies . Acts, 1862-7, having its head office , m Glasgow, Scotland, but its chief I business was carried on at Artha- I taska, in Canada. Proceedings I had been taken in Scotland for the [ winding-up of its affairs. Sir W. Ritchie, C. J., after citing I Matheson Bros., 27 Ch. D. 225, and was In re Commercial Bank of South Australia, 33 Ch. D. 174, said: "There is jurisdiction to make this winding-up order, which would be ancillary to the winding-up in Scot- land, for the purpose of getting in the Canadian assets and settling the list of Canadian creditors, as in re Corsellis, 33 Ch. D. 160, the wind- ing-up in England was ancillary to winding-up in Australia for the .same purpose, and there need not be, and should not be, any conflict between the two courts." His Lordship then distinguished the case of Merchants' Bank of Halifax v. Gillespie, 10 March, 1884, 10 S. C. R. 312, a case arising under the Dominion Wind- ing-up Act of 1882, 45 Vict.c. 23., which Act did not contain the above words. Those words were added by the 47 Vict. c. 39. s. 1, which repealed the 1st section of 45 Vict. c. 23., but re-enacted the with the added words, held there that the Do- Parliament Act, 45 Vict, was not intended to ap- a company incorporated under the Imperial Joint Stock Companies Acts, although holding its chief [)roperty in Canada. Con- tinuing, his Lordship said : " Inas- much, then, as the Dominion statute declares that the Winding- up Act now applies to all com- panies which are doing busiiiess in Canada, and no matter where in- corporated, there can be no doubt of the intention of Parliament to apply the Winding-up Act to foreign as well as domestic incor- porated companies, and as I think such an enactment is within the legislative power of the Dominion Parliament, and it l)eing admitted that this company was cjirrying on its business and held valuable lands in Canada, and was insolvent, and as the provisions of tLe English Companies Act, 1862, are held to apply to foreign companies carrying on business in England, and are •worked out as nearly as may be, or left not worked out, as the exigen- At.I.KN V. Hanson. section It minion c. 23., ply to 88 H.N.A. ACT, s. 01 (22).— DOM. PATENT LAW. Allen v. Hanson. ri l^filP SCBOOLBRED f. Clabse. cies of the c(.se dealt with require; and innsmuch ns the greater part of the assets of this company would seem to be in Canada, there is more reason why the property within the territorial limits of the jurisdiction of the Courts of Canada should be dealt with under the provisions of the Canadian Act; in fact, it is diflicult to see how such property could be dealt Avith by the English liquidators; and inasmuch as in this case it appears the liquidators under the English A-)t are acting in concert with the liquidators under the Canadian Act, I can see no reason for supposing that any con- flict can possibly arise whereby this stockbroker can be in any way damnified. On the contrary, it appears to me that this is the most satisfactory way by which the com- pany can be wound up, and its assets realised for the benefit of the company and all the parties inter- ested. . . It by no means follows thatbecau.se all the provisions of the Act may not be applicable to foreign cases that those portions which are should not be acted on." It was held in Sciioolbred v. Clarke, June 12, 1890, 17 S. C. K. 265 ; and below 16 O. A. E. 161 ; 14 O.R.618; that a company incorpc- rated by the Ontario Legislatiu-e niny be put into compulsory liquidation under the Dominion Winding-up Act, 1887, R. S. C. c. 129., which consolidated and amended the 45 Vict. c. 23. and 47 Vict. c. 39. The question was raised in Shields V. Peak, May 1, 1882, 8 S. C. E, 579, whether the Dominion Parlia- ment could attach a penalty to traders and domiciled inhabitants of Canada making purchases, with in- tent to defraud, outside the Domi- nion. Votes equal. There Ritchie, C. J., said : " So soon as a debtor be- comes insolvent and s.ibject to anv bankrupt or insolvent law passed by the Dominion Parliament, ami proceedings are taken against bim and his estate, under the provisions of such enactments, the pro^•ineilll legislature ceases to have jurisdic- tion over his civil rights, either in relation to the disposition of his in- solvent estate or in relation to his dealings with his creditors, or theii' rights or remedies against his per- son or estate." (22.) Patents of invention and discovery.^ Smith v. GOLCIE. ' See American Constitution, art. 1. s. 8. See Tenuant v. Union Bank of Cpnada, P. C. Dec. 9, 1893, [1894] A. C. 31; 63 L. J. P. C. 25; 69 L. T. 774. That laws made by the Dominion Parliament on these subjects are paramount, "and it would be practically impossible for the Doninion Parliament to legis- late upon eithei of these bjects without affecting the prop ■ y and civil rights of individuals in the provinces." See Lord Watson [ibid.; see also sec. 91, sub-sec 14], In Smith r. Goldie, June 19, 1882, 9 S. C. R. 46, reversing 7 O. A. R. 628, it was held a patent for u continuation of known inven- f : tions, the continuation being novel and useful, was valid. It was theiv also held that to be entitled to a patent in Cannda, the patentee must be the first inventor in Can- ada or elsewhere. Sec. 28 of the Dominion Patent Act, 35 Vict c. 26., provided that every jiateni .shall be subject to the condition thai at the end of two years from its date it shall be null and void unless the patentee shall within thai period have commenced and thence continuously carried on the manu- facture of tlie invention in Canada, and should also be void if, after the expiration of 12 years from tiie patent's date, the jjatentee imports the indention into Canada, "Pro- Aided always that in case disputes arliament, aud B.N.A. ACT, 8. 91 (22).— DECISION OF PAT. COM. 89 fhoiild nrise ns to wliether a patent has or lias not become null and void under the provisions of this >t'etion, such disputes shall be settled by the Minister of Agricul- tiiiT or his deputy, whose decision shall be final." Henry, J., said : "After n lengthened and exhaustive iuvestigntion, in which both parties were represented by very able coun- sel before Mr. Tache, the Deputy Minister of Agriculture, he, in a very logical and sound judgment, JD which he reviewed the law and commented on the evidence, deci- ded tliat Smith had not forfeited liis patent rights or any of them in auv of the three patents. Tiio statute makes his decision final ; and, in \ lew of the whole subject, I have arrived at the conclusion that Parliament intended that it shoidd be so ; and that it was in- tended solely as a matter for minis- terial and not for judicial deter- mination. But in case of any doubt, on that subject, I will add that, having well considered the iiije as presented before him, I would ha\e come to the same con- elusion as he did." In re Bell Telephone Co., Xov. 21, 1884, 7 O. R. G05, the questiou was raised whether section 28 of the Dominion Patent Act, ^j Vict. c. 26., was ultra vires as creating a court of justice of civil jurisdiction, infringing sub-sees. 13 and 14, sec. 92, B. N. A. Act. Osier, J.A., said : " If the duties ('I the minister are executive merely, then beyond questiou pro- hibition does not lie; Chabot r. Lord Morpeth, 15 Q. B. 446-450. . On the other hand, if the minister Iwsljoeu legally constituted a forum iir tribunal for determining these iiuestion.s, and he is not exceeding hi> jurisdiction, I have nothing to dowith the nature of its constitu- I tion, nor am 1 at liberty to say that I it is less a court or tribunal because ^'fflo of the powers usually con- forred upon a court arc wanting, or bwause the machinery is defec- tive (if it be so), or its modes of ascertaining and acting upon facts different from those em- ployed in the ordinary tribunals of the country. Therefore it is be- side the question to urge that there is no power to summon witnesses or to examine them on oath, or that the court is one of original jurisdiction from which there is no appeal, and thus in its very consti- tution foreign to the spirt of our laws, as Lord Abinger observed in ea- parte Smyth, 2 C. M. & K. 748 ; Lord Camden v. Home, 4 T.R. 382. If the tribunal and the power to constitute it exist, then so long as it is acting within its jurisdiction there is no ground for prohibition. " It appears to me that the minis- ter has been constituted a judicial tribunal empowered to decide in rei i upon the status of the patent. There are found the three constitutional elements of a court — The plaintiff, the party who asserts the nullity ; the defendant, the patentee who affirms the validity of the patent ; and the judge in the person of the minister empowered to inquire into the facts to determine the law, and to de- clare the result by n definite decree." Then, after quoting an opinion of a former Minister of Agricul- ture, J. C. Tache, that the con- stitution of this tribunal is not of an unknown character, such juris- diction being given in many coun- tries, and that notwithstanding tin- tribunal was not restricted by strict rules of practice, yet it was never- theless bound to abide the rules of common iustice, the learned judge continued : " It is not for me to ex- press an opinion ns to the wisdom of the policy which dictates the formation of such a tribunal in a country and among a people like ours, accustomed to yield obedience to laws administered through known forms and by courts having powers to compel the attendance and to sift the evidence of witnesses. . . On this branch of the case I have no doubt that, as the ministers' pro- ceedings are of a judicial chni, 'ter. In re Bell TllLEFHONB Co. 1 u 90 B.N. A. ACT, s. 91 (22).— MINISTERIAL or JUDICIAL. Jn re Bell Telephone Co. I ! !^ i '! i prohibition will lie, if the section is ultra vires, or if he is exceeding the jurisdiction conferred upon him thereby." Warwick Canal Co. v. Birmingham Canal Co., 5 Ex. D. 1; 48 L. J. Ex. 550;' 40 L. T. 846. South Eastern Railway Co. V. Railway Commissioners, 1881, 6 Q. B. D. 586; 50 L. J. Q. B. 201; 44 L. T. 203. North L. Railway Co. v. Great Northern Railway Co., 22 Feb. 1883, 11 Q. B. D. 30; 52 L. J. Q. B. 380; 48 L. T. 695; 31 W. R. 490. Reg. V. Local Government Board, Nov. 6, 1882, 10 Q. B. D. 309; 52L. J. M. C. 4; 48 L. T. 173; 31 W. R. 72. Cote v. Morgan, 7 S. C. R. 1. Poulin V. Corporation of Quebec, 9 S. C. R. 185. "The next question is whether the sec- tion under consideration is ultra vires the Parliament of Canada. Under the B. N. A. Act, section 91, the exclusive authority of the Parliament of Canada extends to all matters coming within the classes of subjects, inter alia, sub- sec. 22, * patents,' &c." " Property and civil rights with- in the province, and the ad- ministration of justice, includ- ing the establishment, &c., of provincial courts, are the matters assigned exclusively to the pro- vincial legislatures. Nevertheless, as regards property and civil rights, it is settled that the parliament may legislate where it becomes necessary to do so for the purpose of legislating generally and effect- ually in relation to matters within their own legislative authority. Cushmg V. Dupuy, 5 App. Cas. 409-415 [see sub-sec. 21, sec. 91] ; Valin V. Langlois, 3 S. C. R. 1, 5 App. Cas. 115 [see sec. 41]; Citizens' Insurance Co. v. Parsons, 7 App. Cas. 96, 107, 108, 109 [see sec. 92, sub-sec. 13]. Patents of invention, &c., though property and civil rights in the province in which the holder may be domiciled, yet confer rights exercisable in any province of the Dominion, and all legislation on the subject is from its very nature, in a high degree, a matter of policy of the general Government." And his Lordsbii) quoted Mr. Tach6 — ' The intention of the legislature, as shown by the policy of the legislation, is evidently to guard against the danger of Canadian patents granted to aliens, being made instrumental to secure the Canadian market in favour of foreign patents to the detriment of Canadian industry, for, in the mea- sure that the right of taking patents was extended, the remedy against the dreaded danger was made more ample, but at the same time the jurisdiction over such cases of disputes as might arise, was transferred from judicial tribunals to the administrative tribunal.' His Lordship continued : " This, I think, is what Henry, J., is re- ferring to, when in Smith v. Goldie, 9 S. C. R. p. 68 [see above], he speaks of the matter being solely a matter of ministerial and not judi- cial determination — 'evidently for the purpose of avoiding an over- strict application of the provisions made against the possible evil of a patent being taken for the sole pur- pose of depri\ ing Canada from the use of a useful invention. The 28th section is also intended as a sort of protective policy in favour of Can- adian labour. The legislature has certainly not without intention pro- vided for a kind of paternal tri- bunal formed by the Commissioner of Patents, the natural protector of patentees, which intention can be no other than that every case should be adjudicated upon in a liberal manner.' Upon the best considerations I have been able to give to the subject, I am of opinion that the .section [28] is not ultra vires, or in conflict with the powers assigned to the proviucial legislatures. Though property and civil rights, it is yet one of parlia- mentary creation, and I see no rea- son why the same power which gave it birth and limits the term of its existence should not also, as a matter of policy, and for the purpose ^ B.N.A. ACT, 8. 91 (23).— ENGLISH AUTHOR. 91 of effectual legislation on the sub- ject, also provide a special mode of inquiring into and deciding upon the question whether the conditions upon which it was granted, to which it was expressly to be sub- ject, and on which its existence depends, have been complied ^vith. I cannot on principle distinguish this legislation from many of the instances referred to by Ritchie, C.J., in Valin v. Langlois, 3 S. C. R. 1, in which judicial powers are conferred, in some cases on individual judges, in others on pro\ incial courts, to administer re- lief arising under Dominion Acts. I mnv refer, inter alia, to the follow- ing :— The Public Works Act, 31 Vict. c. 12. s. 48, provides that the costs in awards under that Act shall be taxed in some caaes by the pro- per officer of certain named courts, in others by a judge of the supreme courts. The Act for the settlement of the affairs of the Bank of Upper Canada, 31 Vict. c. 17., gives au- thority to the Court of Chancery or a judge thereof to make orders and directions with reference to the trust therein mentioned [see this Act, sub-sec. 21]. The 31 Vict. c. 23., an Act to define the privi- leges of the House of Commons, &c., makes provision for the immediate stay of, and putting an end to, all proceedings, civil or criminal, upon the certificate of the Speaker in cer- tain cases. The Act relating to banks and banking, 34 Vict. c. 5., enables the superior courts of law and equity to adjudicate in a sum- mary manner upon the right of imrties legally entitled to shares, &c. See Re Bank of Ontario, 44 U. C. Q. B. 247. The Public Lauds Act, 35 Vict. c. 23., pro- vides for a summary remedy on application to a judge of any court having competent jurisdiction, in cases respecting real estate, for the delivery of laad on proof to his satisfaction that land forfeited should properly revert to the Crown. So in the very Act in ques- tion we find provisions made with regard to actions for the infringe- ment of patents, and impeaching them by sci. fa., &c., in the pro- vincial courts and the powers of such courts, and the procedure in the action. See Aitcheson v. Mann, 9 Prac. R. 253. Except that the power has been conferred upon the Minister of Agriculture instead of a judge or a court eo nomine, and that no mode of procedure has been provided, I do not see any real dis- tinction between this case and many others of which the foregoing are examples. . . I have considered whether section 28 could be re- stricted to cases where parties go tefore the minister by consent; I do not see my way to so holding. . The jurisdiction of the minister is concluded, so far as I am concerned, by the decision of the Supreme Court in Smith v. Goldie, 9 S. C. R. p. 68." Am Bell Tklepiione Co. (23.) Copyrights.^ ' -See American Constitution, iirt. 1. 8. In Smiles v. Belfobd, March 1877, 1 O. A. R. 436, it was held, affirming the judgment of Proudfoot, V.C., 23 Grant, 590, that it is not necessary for the author of a British book who has duly copyrighted the work in Eng- land under 5 & 6 Vict. c. 45., to copyright it again in Canada under the Copyright Act, 1875, with a Smilm v. Bbl- view of restraining a reprint of it ^ovx>. there ; but if he desires to prevent the importation into Canada of printed copies from a foreign country, he must copyright the book in Canada. The respondent published in England the work "Thrift," of which he was the author, and claimed the sole and exclusive right of printing, Ac, throughout !' 'I 'T'W, 92 B.N.A. ACT, s. 91 (23).— IMP. COPYRIGHT ACTS. Shilu v. FORD. Biu- Great Britain and Ireland and all the Colonies, 5 & 6 Vict. c. 45. ss. 2, 29. By virtue of certain Canadian statutes passed under authority of the Imperial Act, 10 & 11 Vict. c. 95., the respondent's rights were less in Canada than in England, in that foreign reprints of his book were, under authority of the Canadian Acts, permitted to be imported into Canada without the consent of the respondent, upon pay- ment of a certain duty for his bene- fit. The appellant contended that the Imperial "Canada Copyright Act, 1875 " (38 &39 Viet. c. 53.), and the Queen's Proclamation gave the "Canadian Copyright Act," 38 Vict. c. 88., the force of law in Can- ada, notwithstanding the " Colonial Laws Validity Act" (28 & 29 Vict. c. 63.), or the "Imperial Copyright Act," 5 & 6 Vict. c. 45., and to the extent of the Canadian "Copyright Act," superseded the Imperial Copyright Act of 1842 in Canada from 11 Dec. 1875, or at all events, that the legislation Mas cumulative, and if the Im- perial Act is in force in Canada, the provisions of the Canadian Act are superadded, and must be complied with to give copyright in Canada, 38 & 39 Vict. c. 53. s. 3. Dow V. Black, 5 March 1875, 6 L. R. P. C. 272 ; 44 L. J. P. C. 52; 32 L". T. 274. [See sub- sees. 10 and 3, sec. 91.] L'Union Jacques de Montreal v. Belisle, 8 July 1874, L. R. 6 P. C. 31 ; 31 L! T. Ill; 22 W. R. 933. [See sub-sec. 21, sec. 91.] Burton, J. A., referring to the B. N. A. Act, said : "It is clear that all the Imperial Act intended to effect wa-s to place the right of dealing with colonial copyright within the Dominion under the exclusive control of the Parliament of Canada, as distinguished from the provincial legislatures, in the same way as it has transferred the power to deal with banking, bank- ruptcy, and insolveacy, and other specific subjects from the local legislatures, and placed them under the exclusive jurisdiction and con- trol of the Dominion. I entirely agree with the learned V.O. in the opinion which he has expressed that under that Act no greater powers were conferred upon the Parliament of the Dominion to deal with this subject than had been previously enjoyed by the local legislatures. By the 29th sec. of the Imperial Act, 5 & 6 Vict. c. 45., that Act is extended to every part of the British domi- nions, and it was unsuccessfully contended in Routledge v. Low, L. R. 3 H. L. 100, that Canada, having a legislature of her own, and not being directly governed by legislation from England, was not included in these general words. The 15th section of that Act prohibits Her Majesty's colo- nial subjects from printing or pub- lishing in the colonies without the consent of the author (whatever may be their colonial laws) anv work in which there is copyright in the United Kingdom. The same Act prohibitfi the importing into any part of the British pos- sessions any foreign reprint of any book first written or published in the United Kingdom entitled to copyright there. This Act was subsequently amended by the 10 (fell Vict. c. 95., and it was there provided that in case the legis- lature of any British possession should be disposed to make due provision for securing or protect- ing the rights of British authors in such possession, and should pass an Act for that purpose, and trans- mit the same to the Secretary of State, and in case Her Majesty should be of opinion that such Act was sufficient for the purpose of securing to British authors reason- able protection within such pos- session, it should be lawful for Her Majesty to express her royal ap- proval of such Act, and therefore, by Order in Council, to suspend, so long as the provisions of such Act should continue in force in such colonies, the provisions of the B.N.A. ACT, s. 91 (23).— CAN. COPYRIGHT ACTS. 93 5&6Vict.c.45.,a5rains<J, 14 App. Cas. 46; 58 L. J. P. C. 54 ; 60 L. T. 197, the Dominion claimed that the Act of 1867 transferred to the Do- minion all interest in Indian lands which previously belonged to the province. Lord Watson delivered the judgment, there being also present, Earl of Selbome, Lord Hobhouse, Sir Barnes Peacock, Sir Montague E. Smith, and Sir R. Couch. Lord Watson said : " It appears that, on 3 Oct. 1873, a formal treaty or contract was concluded between Commissioners appointed by the Go\ernment of the Dominion, on behalf of Her Majesty the Queen, of the one part, and. a number of chiefs and headmen duly chosen to represent the Satleaux tribe of Ojibbeway Indians, of the other part, by which the latter, for certain considera- liois, leloascd and surrendered to the Government of the Dominion, for Her Majesty and her successors, the whole right and title of the Indian inhabitants whom they re- presented to a tract of coimtrj upwards of 50,000 square miles in extent. By an article of the treaty it was stipulated that, subject to such regulations as may be made by the Dominion Government, the Indians are to have the right to pursue their avocations of hunting and fishing throughout the sur- rendered territory, with the excep- tion of those portions of it which may from time to time be required or taken up for settlement, iiiin- ing, lumbering, or other pur- poses. Of the territory thus ceded to the Crown an area of not less than 32,000 square miles is situated within the boundaries of the province of Ontario ; and, with respect to that area, a controversv has arisen between the Dominion and Ontario, each of them main- taining that the legal effect of ex- tinguishing the Indian title has B.N.A. ACT, s. 91 (24).— QUEBEC JUDICIAL HISTORY. 95 been to transmit to itself the entire beneficial interest of the lands as now vested in the Crown, freed from incumbrance of any kind, save the qualified privilege of hunting and fishing mentioned in the treaty. Acting on the assump- tion that the beneficial interest in these lands had passed to the Do- minion Government, their Crown timber agent, on 1st of May 1883, issued to the appellants, the St. Catherine's Milling and Lumber Co., a permit to cut and carry away 1,000,000 feet of lumber from a specified portion of the dis- puted areas. The appellants having availed themselves of that license, a writ was filed against them in the Chancery Division of the High Court of Ontario, at the instance of the Queen on the information of the Attorney-General of the pro- vince, praying (1) a declaration that the appellants have no right in respect of the timber cut by them upon the lands specified in their permit; (2) an injunction re- straining them from trespassing on the premises and from cutting any timber thereon ; (3) an injunction against the removal of timber a&eacly cut ; and (4) decree for the damage occasioned by their wrongful acts. The Chancellor of Ontario, on 10 June 1885, de- cerned with costs against the ap- pellants, in terms of the first three conclusions, and referred the amount of damage to the Master in Ordinary. The judgment of the learned Chancellor was unani- mously alfirmed on the 20th April 1886 by the Court of Appeal for Ontario, and an appeal taken from their decision to the Supreme Court of Canada was dismissed on 20th June 1887 by a majority of four of the six judges constituting the Court." * " Although the present case re- lates exclusively to the right of the Government of Canada to dispose of the timber in question to the appellant company, yet its de- cision necessarily involves the de- AND Lumber Co. V. Thk QUBEN. termination of the larger question St. Cathb- between that Government and the fine's Milling province of Ontario with respect to the legal consequence of the treaty of 1873. In these circum- stances Her Majesty, by the same order which gave the appellants leave to bring the judgment of the court below under the review of this Board, was pleased to direct that the Government of the Do- minion of Canada should be at liberty to intervene in this appeal, or to argue the same upon a special case raising the legal question in dispute. The Dominion Govern- ment elected to take the first of these courses, and their Lordships have had the advantage of hearing from their counsel an able and ex- haustive argument in support of their claim to that part of the ceded territory which lies between the provincial boundaries of Ontario. " The capture of Quebec in 1759, and the capitulation of Mon- treal in 1760, were followed in 1763 by the cession to Great Britain of Canada and all its de- pendencies, with the sovereignty, property and possession, and all other rights which had at any pre- vious time been held or acquired ))y the Crown of France. A Royal Proclamation was issued on the 7th October 1763, shortly after the Treaty of Paris, by which His Ma- jesty King George (the 3rd) erected four distinct and separate govern- ments, styled respectively, Quebec, East Florida, West Florida, and Grenada, specific boundaries being assigned to each of them. Upon the narrative that it was just and reasonable that the several nations and tribes of Indians who lived >inder British protection should not be molested or disturbed in the ' poHsesssion of such parts of Our dominions and territories as, not having been c eded to or purchased by us, are reserved to them or any of them as their hunting ground,' it is declared that no Governor or Commander-in-Chief in any of the new Colonies of Quebec, East 1^ ^. >n ^1 96 B.N. A. ACT, s. 91 (24).— WASTE LANDS. St. Cathe- binb's Milling AND Lumber Co. V. The Queen. Florida, or West Florida, do pre- sume on any pretence to grant warrants of survey or pass any jmtents for lands beyond the bounds of their respective govern- ments, or * until Our further pleasure be known' upon any lands what- ever which, not having been ceded or purchased as aforesaid, are re- served to the said Indians or any of them. It was further declared ' to be Our Koyal will, for the pre- sent as aforesaid, to reserve under our sovereignty, protection and dominion, for the use of the said Indians, all the land and territories not included within the limits of our said three governments or within the limits of the territory granted to the Hudson's Bay Com- pany.* The proclamation also enacts that no private person shall make any purchase from the In- dians of lands reserved to them within those colonies where settle- ment was permitted, and that all purchases must be on behalf of the Crown in a public assembly of the Indians, by the Governor or Com- mander-in-Chief of the Colony in which the lands lie. " The territory in dispute has been in Indian occupation from the date of the proclamation until 1873. During that interval of time Indian affairs have been ad- ministered successively by the Crown, by the provincial govern- ments, and since the passing of the B. N. A. Act, 1867, by the Go- vernment of the Dominion. The policy of these administrations has been all along the same in this re- spect, that the Indian inhabitants have been precluded from entering into any transaction with a subject for the sale o"" transfer of their in- terest in the land, and have only been permitted to surrender their rights to the Crown by a formal contract duly ratified in a meeting of their chiefs or headmen con- vened for the purpose. Whilst there have been changes in the ad- ministrative authority, there has been no change since the year 1763 in the character of the interest which its Indian inhabitants had in the lands surrendered by the treaty. Their possession, such as it was, can only be ascribed to the general provisions made by the lloyal Pi'oclamation in favour of all Indian tribeo then living under the sovereignty und protection of the British Crown. It was suggested, in the course of the argument for the Dominion, that inasmuch as the proclamation recites that the territories thereby preserved for In- dians had never been ' ceded to or purchased by ' the Crown, the entire property of the land remained with them. That inference is, however, at variance with the terms of this instrument, which show that the tenure of the Indians was a per- sonal and usufructuary right, de- pendent upon the good will of the sovereign. The lands reserved are expressly stated to be 'parts Our dominions and territories,' and it is declared to be the will and pleasure of the sovereign that ' for the pre- .sent ' they shall be reserved for the use of the Indians as their huntiug grounds under his protection and dominion. There was a great deal of learned discussion at the Bir with respect to the precise quality of the Indian right, but their Lordships do not consider it neces- sary to express any opinion upon the point. It appears to them to he sufficient for the purposes of this case, that there has been all along vested in the Crown a substantial and paramount estate underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished. By an Imperial sta- tute passed in 1840 (3 & 4 Vict. c. 35.), the provinces of Ontario and Quebec, then known as Upper and Lower Canada, were united under the name of the province of Canada, and it was, inter alia, enacted that in consideration of certain annual payments which Her Majesty had agreed to accept by way of Civil List, the produce of all B.N.A ACT, s. 91 (24).— DOM. TIMBER CLAIMS. 97 tenitorial and other reveuues at tbo (lisposiil of the Crown arising in either of tlie united provinces should 1h! I'lii'l iuto the eonsoli- iliited fund "f t'>f 'iPW province. There was no tran.sfer of nnv le<;;«l cstiite iu the Crown hinds, which cuntinned to be vested in the sove- reign ; but all moneys realized bv sales or in any other manner be- cjiiiie the property of the province. Ill otiier words, nil beneficial in- kiest ill sucii lands within the jiro- viueial boundaries Ijelonging to tiie Ijiiei'u, a IK 1 either producing or capable of producing revenue, |)iisseil to the province, the title CI «till reranining iu the Crown. That ontiinu'd to be the right of the liroviiice until the passing of the li. y. A. Act, IHG7. Had the in- habitants of the area in question iileased their interest in it to the Crown at any time lietween 1840 ami the date of that Act, it does uot seem to admit of doubt, and it was not disputed by the learned counsel for the Dominion, that all reveunes derived from its l)eiug taken up for settlement, mining, lumbering, and other purposes, wouhl liiuc been the property of the province of Canada. The ease im\iutaini'(l for the appellants is that tlie Act of 1867 transferred to the Dominion all interest in Indian hiuds which previously belonged to the province. The Act of 1867, which eroated the Federal Goveru- meut, repealed the 3 & 4 Vict. c. 35., and restored the Upper and Lower Caiuidas to the condition of ^paiiite provinces under the titles of Ontario and Quebec, due pro- vision being made (sec. 142) for the division between them of the property and assets of the united province, with the exception of certain items specified in the fourth sihi'dule which are still held by iliem jointly. " The Act also contains careful pro\isions for the distribution of legislative powers and of revenues and assets between the respective provinces included in the Union, S 2340. AND LuMnEB Co. V. TiiK Queen. on the one hand, and the Do- '^t. Cathe- niinion, on the other. The con- *'"■> ^l"'!"" dieting claims to the ceded terri- tory maintained by the Dominion and the province of Ontiuio are wholly dependent on these statu- tory provisions. In construing these enactments, it must always be kept iu view that, wherever |)ublic land with its incidents is described as ' the property of ' or as ' belonging to ' the Do- minion or a j)rovince, these ex- pressions merely import that the right to its beneficial use, or to its proceeds, has l)een appropriated to the Dominion or the province as the case may be, and is subject to the control of its legishitine, the land it.self being vested in the Crown. Sec. 108 enacts that the public works and undertakings enumerated iu Schedule 3 shall be the property of Canada as specified iu the .schedule ; these consist of public imdertakings which might be fairly considered to exist for the benefit of all the provinces fedeiully united, of lands and buihlings necessiuT for carrying on the Cus- toms oi' postal service of the Do- minion or required for the purpose of natioiud defence, and of ' lands set apart for general pid)lic pur- poses.' It is obvious that the enti- meration cannot be rea.sonably held to include Crown lands which are reser\ ed foi- Indian use. The only other clause iu the Act by which a share of what previously constituted pro\'incial revenues and assets is directly assigned to the Dominion is sec. 102. It enacts that all ' duties and revenues ' over which the respective legislatures of the United Province iuid and have power of appropriation, ' except such portions thereof as are by this Act reserved to the respective legis- latures of the provinces, or are raised by them in accordance with the special powers conferred upon them by this Act,' shall form one consolidated fund to l)e appropri- ated for the public service of Canada. The extent to which Q m m Jii! i ; m •: I! St. Catiik- niNR's MlI.I.INO AND LUMIIFH (^0. r. TlIK (Jt'KKN. 98 B.N.A. ACT, s. 91 (24).— ESCHEATS PROVINCIAL. duties and rpveimoH iiriwinfr within tiio limits of (Intario, iind o\»'r whit'li tho li'fjisliitnic of tlio old proviiico of Citiiiida pos.scssml the ])()\v«'r of iippropiiation before the passing of the Aet, have been transferred to the Dominion by this elause, ejin only be ascertained by reference to the two exception.') which it makes in favour of the new provincial legislatiu'es. The .second of these exceptions has really no beaiing on the present case, because it comprises nothing beyond the revenues which pro- vincial legislatures are empowered to raise by means of direct taxation for provincial purposes in terms of sec. 92, sub-sec. 2. The first of them, which appears to compre- hend the whole sources of revenue reserved to the provinces by sec. 109, is of nuiterial consequence. Sec. 109 jnovides that 'all lands, mines, minerals, and royalties be- longing to the .several provinces of Canada, Nova Scotia, and New Brunswick, at the Union, and all sums then due or payable for such lands, mines, minerals, or royalties, shall belong to the several jaovinces of Ontario, Quebec, Nova Scotia, and New Brunswick, in which the same are situate or arise, subject to any trusts existing in respect thereof, anome provision of the Act of 1 867 other tJian those already noticed. " In tile course of the argument ilie claim of the Dominion to the ceded territory was rested upon the provisions of sec. 91, sub- sec. 24, which in express terms confers upon the Parliament of Canada |)ower to make laws for 'Indians and lands reserved for Indians.' It was urged that the I exclusive power of legislation and administration carried Avith it, by necessary implication, any patri- monial interest which the Crown [might have had in the i-eserved s. In reply to that reasoning, j counsel for Ontario referred ns to I a series of provincial statutes prior J in date to the Act of 1867, for the [purpose of showing that the ex- Ipression 'Indian Reserves' was liised in legislative language to jdesignate certain lands in which jllie Indians had, after the Royal jProclamation of 1763, acquired a I special interest, by treaty or other* TlIK wise, and did uot apply to hind '^r. Catiik- occupied by them in virtue of "«"»«» Millimi th not tlic natut'til iniporl nl' tlw liiii;;iiii Dominion upon this l^oint, it is ahiindantly eleitr that the eonimissioners who represented Her Majesty, whilst they hud full uuthorily to aeeejit a siiireiider to the Crown, had neither authority nor power to take away from On- tario the interest wliieli had iK'en iissipnod to that provinet! liy the Imperial statute of IHG7. these considenilions iijipear to their Lord, ships to lie suflieient for th") dis- posil of this appeal. The treaty leaves the Indians no rij^ht what- ever to the tiiiiher {^rowinj; upon the hinds whieli they <;a\e up, which is now fully vested in the Crown, all revenues derivnlile from the Side of such portions of it as are situated within the boundaries of Ontario l)ein<5 the projierty of that province. The fact, that it still i)ossesses exclusive ])ower to iciruiatc the Indian privih'ge of liuntini:; and fishing, cannot confer ii|)oii the J3oni;'iion power to dis- pose, by issninjj; permits or other- wise, of that beneficial interest in the fiiiilii'r which has now passed to Ontario. Scein right in respect of Indian votes, and had excepted from the right In franchise Indians belongiiifj tn tribes and Indians in receipt dI f}overnment aid or bounty. See 33 Vict. c. 25. s. 34 ; Prov. Lt;;, 18(!(5, p. 710. 28 U.C.C. r. 384, 391) ; 1 Ont. App. B. 159, a case uf provincial taxation, that sub-sec. 24 applied only to Indian huuLs not surrendered antl still reserved for their use. (25). Naturalization and aliens.^ ' See the Imperial Naturalization Act of 1870,33 & 34 Vict. c. 14. s. 16, which gives power to Colonies to legislate with respect to naturali- zatiou of persons who are to have that privilege within the limits of such possessions. The 35 & 36 Vict. c. 39., which amended the previous Act only as to renunciation by the citizens of the United States aud by British subjects of their resp«c- tive original nationality, in accor- dance with the Convention with the United States, 23 February 1871. said CliiiM (•-' \VI the iiiiiloi'i Wllflv powpr they argiime preocdi the inv undor solely the ('„ the M rrepeale B.\.A. ACT, H. 01 (20).— NATUltALIZATION. 101 Iii'<,'i?>liitiim with rof^anl to nlit-ns i>i cntni^ti'il to the Doiiiiiiioii I'lir- liiiini'iit. TIk' Maiiitol»ii Assfint)l_v pasM'd Mil Art (Icaliii^ with the lididin^' of Iniiii ; ami dcclart'd tliiil tli('Cxi.stiii;iilis(|iialill('atioiisiipiiiist aliens (IcIpmitciI tliciii IVom st'r>iii>;' (isjiiiors. Tlu' Minister ol' Justice, 21 FclinmiT 1874, t'ollo\viii>; the niliii;,' ol' the C'liief ' ■Hee uuder till' Mii^'lisli laws ii in Mani- toliM, iiM'oiiiiiieinlea uie Act lie siiiii'lioiieil. I'rov. Tjey., 1HH7. If the provinces atteinpt to effect till' iiiiliiraliziilioii of a person who is a cili/i'ii of a foi»'i<;n state, this would lie olijci'ted to, as this is one of tile siilijects left exidlisively to the Doiiiiiiioii l'iirliaiiient,iiii(l Acts havclu'eii passed acconlinj^h . full power to [wss an Act (the Canada Temperance Act, 1878) to prevent the side of liquor, e.xeejit in whole.sde (juantities, wherever put in force by the municipality, and may attach to the side of liquor fine or punishment of a criniiual nature. See Ktissell v. The Queen, in S. C. N. B. 1881 ; in P. C, June 23, 1882; 7 Ajjp. Ca.s. 829; 51 J. L. P. C. 77; 4{) L. T. 88!) [sec sec. 92, sid)-sec. 9], aHirniing the City of Fredericton v, the Queen, 1879, 19 S. C. N. R (li Pugs. & B.) 139, April 13, 1880; 3 S. C. 11. 505 [see ante, p. 60], By a provincial Act in force ev erv debtor imprisoned under |)iot'ess from any court was entitled to apply for his discharge, and when the county courts were establi.^iied it was held competent for the pro- vincial legislatire to provide; liy lui Act that prisoners arrested uudir process issuing from them should Ix' entitled to their dischargt; as in other cases, and siu'h an Act is noi ultra vires. Johnston v. I'ovnt/. April 5, 1881 ; 14 N. S. R. (2 Uh*.<. & Geldert) 193. The Dominion Act, 32 & 33 Viot c. 31. s. 78, inter alia, provided that in case a justice before whom any conviction t N OF LAW B.N A. ACT, 8. 91 (27).— ADOPTION OF LOCAL LAW. 103 or refuses to make the return of the conviction to the next general or quarter sessions, he should forfeit the sum of ?80, to be recovered in any court of record in the pro- vince. An action was brought for the penalty in the Westmoreland county court. New Brunswick. The Provincial C. S. c. 51. enacts that the county courts shtill not ha\e jurisdiction over actions against jus- tices of the peace. It was held the Dominion Act overrode the pro- vincial Act. Ward v. Reed, Nov. 1882; 22 S. C. N. B. (I Pugs. & T.) 279. Alien, C.J., said : " I think there is no doubt about the power of the Dominion Parliament to autiiorizp any court in this pro- vince to try such an actioa as this. It is a matter connected with th(! achninistration of the criminal law, which Wlongs exclusively to the Dominion Parliament, which has the right, in legislating upon a luiitter within its control, to give authority to the existing courts in the provinces to try such matters. This principle was e.st4iblished in Vaiin ('. Langlois [,9CP ante, p. 18], 13 S, C. 11. 1, where (jues- tion arose as to the right of Parlia- ment to imposts on tlie judges of the superior courts of the sevend IHovinces in the Dominion the duty of trying petitions respecting controverted elections of uuunbers of the House of Commons. Rit- cliie, I'.J.. in that case, V.i S. C U. p. 20, says ; ♦ Whether liiis Act (the Controverted Elections Act) is to \w treated asih'daring the courts named Dominion Election Courts, ";• "ui'i'n.i it is to Ik' treated as merely conferring on iHirticulai- t'ourts already organized n new and iwnliar jurisdiction, is a matter to my mind of no great importjince, I «s I think while they clearly ha\ e ' the power of estro\ision in- consistent therewith." It was held iv re Boucher, 1.3 Nov. 1879, that tlie 38 Viet. c. 17., giving- power to the police magis- trate to try in a summary manner felonies and misdemeanours, wns intra vir/'s of tlie Dominion Par- liam(>nt. In that case, on an appeal from Coiu't of Appeal, Ontiuio, against a conviction by the police magis- tmte for nidawfuU}* wounding, it was .held no appeal lay to the Supreme Coin-t. llitchie, C.J. : " As regai'ds habeas corpus in criminal matter.^, the Court has oidy a concurrent jiu'isdiction with the judges of the superior courts of the vnrious province.s, and not an ap- pellate jurisdiction, and there is no necessity for an appeal from the judgment of any judge or coint or any appellate court, becjiuse the prisoner can come ilirect to any judge of the Supreme Court in- dividually, and ujion that judge refusing the writ or remanding the prisoner, he could take his appeal from that judgment to the full comt." Dig. 8. C. R., 1893, 327. Eeu. r.I'mrTiK. The (puistiou was raised in Ueo. f. Prittie, March 15, 1878, 42 U. C. y. B. G12, whether liny license under a provincial Act could issue in a place where the Dominion Temperance Act, 18G1, was adopted, and Wilson, J., was of opiuioii the Ontario Legislature had not the power to nuike the provisions of the licensing Acts have the full force • nd effect in a municipality where the Temperance Act is in force, so as to make an offence against the one (the " keeping " for sale under the Domiuiou Act) au offence against the other Act. " That is direct legislation upon criminal law and procedure in criminal matters which is nol in any way ut'cesstiry for the due exei'cise of their own proper power. Why is not the piuty to Id- convicted under the statute and for the violation of tiie statute he has contravened ? Why is lie, because he has done an act afiniiw one statute, to be proseeutf a matter of criminal law, and f lieiv fore assigned exclusively to tlu' Dominion Parliament, but siuli [ilea was not ".plield. In Keg. v. Stone, Dee. 23, 1892, 23 O. R. 46, it was held the Act 'f. Viet. c. 43.of the Dominion Pariin- ment to provide against frauds in tiic supply of milk to cheese factories, &^\,-V!as intra vire», although there was an Act of the Ont^uio Lrgislu- up B.N.A. ACT, s. 91 (27) — OVERLArPING LEOrSLATION. 105 I) tiiiv, 51 Vict. c. 32., for the siiine |im|xw. Rose, .1., siiid : The tirst objcc- tidii WH.S supported by fin aigiunciit on the decision in llcg. v. VViison, 17 0. A. li. 221, wImto u .sonu'what similar Act of the Ontario Lcgis- liitiue, 51 Vict. c. 32., was con- sidered, and hehl to be intra rire^ the Oiitin-io Legislature, the opinion ill that ca.se being that the Act of thi' i^islatnre merely protected piivctc rights. That case was con- sidered by tliis Court in Ueg. r. Hart, 20 O. R. Gil, where the nsiilt of the decision in Rig. r. Vfamn was stated to be that the provincial Act was not a criminal cimctiiient, although its provisions wore ciif )rceable by fine and im- piiiwiiuient. As has beeii pointed out in Reg. v. Wa.son, the Act of tiie legislature differs in form frf)m tiie Act of Parliament, in that mider the former the offence con - sists in doing certain things with- out notifying in writing the owner or manager of the cheese oi- butter iimnul'iictory. The Act in question forbids all persons doing tlie acts therein stated; and is in form simi- lar to other Acts found upon the |mges of the R. S. of Canada creat- ing crimes. It was urged upon ns that if the legislature hatl power to deal with the subject, it followed that it wasnot within the jurisdiction of Parliament. I think this is not ^. In my opinion, Mr. Edward Blake in his argument in Keg. v. W'asou correctly stjited the law as follows: — 'The jurisdiction of the provinces and the Dominion over- liip. The Dominion can declare anything a crime, but this only so IIS not to interfere with or exclude the |)()\vers of thi- i)rovince of deal- ing with the same thing in its civil ii.''pect and of imposing sjinctions for the observance of t he law ; so that though the result might be an intouvenient exposure to a double liability, that possibility is no argu- ment against the right to exercise the power ; ' or as put by Osier, J. [in the .same case, Reg. i'. Wnson, 17 O. A. R.], p. 241: 'I sup- Reo. w. Stonk. po.se it will not he denied that the latter, namely, the I'arliament, may draw into the domaii\ of crim- inal law an act which has hitherto been punishable only under a pro- vincial statute.' MacLennan, J., in the .siuiie case, p. 248, referring to the Adulteration Act, R. S. C. c. 107. s. 15, used language which I think is apposite. ' The Act in question seems to me to be very different from the Dominion Act. The latter is universal in its scope and application, and prohibits the forbidden acts by all persons whom- soevvi, under all circum.stances, and in all places through the Dominion, while the provincial Act is continecl to dealing lietween these two par- ticular kinds of manufacturers and their customers. The one has all the features of a i)ublic criminal law passed in the interest of the general public ; the other is merely the regulation of the mode of ean-y- ing on a particular trade or busi- ness within the province, so as to secure fair and honest dealing be- tween the parties concerned.' Had there been no provincial statute, I do not think it could have been argued that the Act in question did not cieate a crime, ar.d was not within the power of Parliament. A|)art from any distinction l)etween the two Acts as to the provisions and enactments, I am of opinion the passing of a provincial statute within the powers of the legislature cannot in anywise take away from Parliament the right to legislate Inspecting the same matters and to prohibit them, and to enforce the prohibition by such punishment by way of fine or imprisonment as may be deemed best. . . I think the quotations I have made so com- pletely cover the ground, and so clearly and distinctly express the conclusions at which I have arrived fronx a perusal of the arguments and opinions in that ca.se, that I cannot hope to express more clearly the re.tult." ftalt, C.J,, and Mac Mahon, J,, concurred. !li fi'j; f ! ^ m 106 B N.A. ACT, s. 91 (27).— QUASI-NATIONAL SENSE. Niii The Ontiuio Acts, 51 Vict. c. 32., providing against frauds in selling milk, cheese, and butter; and 52 Vict. c. 15., providing for ap- peals on prosecutions to enforce penalties and punish ofl'ences under provincial Acts, were both held intra vires. Reo. v. Wason, In Heo. v. Wason, March 4, 1890, 17 O. A. E. 221, Hagarty, C.J.O., said: "If it be an Act merely to oreate offences in the in- terest of public morality, it may be argued tliat it is trenching on the forbidden ground of ' criminal law.' If it l)e, as I think it is, an Act to regulate the business carried ou at these cheese factories, with reason- able penalties to ensure obedience to its regulations, I consider it to be within the powers given by the Constitution to the provincial legis- lature. Burton, J. : " The words used both in sections 91 and 92 are ne- cessarily very general, but those in 91 were intended to apply to sub- jects of national and geuerp'. con- cern. We are all aware ihat for many years after confederation, dis- cussions were constantly arising as to the scope of the words, * Regu- lation of trade and commerce,' it being frequently contended that they were sufficiently general to include even minute rules for regu- lating a particular trade or business, a contention not only frequently urged, but found not to be without support in judicial dicta. [See Citizens' Insurance Co. v. Par- sons, 4 S. C. K. 294, 341 ; Beg. v. Lawrence, 43 U. C. Q. B. 176.] But it has long since been authoi itu- tively decided that, reatl in connec- tion with other portions of the Act, those words must l»e held to r(>fer to regulations relating to trade and commerce in their general anil quasi-national sense, and not to the contracts or conduct of particular trades. So in reference to the words found in sec. 91, * criminal law, including procedure,' read in connection with the powers grante. See Prov. Leg., 1880, p;.. Wo, 715. Anything trenching upon the cri- Criminal Law. minal law so far as it relates to general matters is not passed by the Minister of Justice ; for instance, in the Registration of Electors and Ballot Act of Prince Edward Island, 1877, sec. 101, which provided that whoever at any time before, during, Reo. v. or after the polling " forge or Toland. counterfeit, or fraudulently alter, deface, or destroy any ballot paper or the initials of the sheriff." The Minister of Justice, T. A. Lash, 2 May, 1878 : So far as it relates to the coimtei-feiting or fraudulent- ly altering any ballot paper, the Act clearly entrenched on the criminal law, and he recommended its repeal or araeudmeut so as to obviate this objection. So also where the Ontario Legislature passed an Act, 31 Vict. c. 6., sec. 2., which dechir- ed that any wilfully false statement made before conmiissioners autho- rized to be appointed under the Act should lie a misdemeanour pimish- ablein the .same manner as wilfuland corrupt perjiiry. The Minister of Justice, John A. Macdonald, held this was legislation respecting the criminal law, which appertains solely to the Dominion Parliament, and ho recommended it \k re- l)ealed. And so it was. 32 Vict. (Out.) c. 27. 18(59. With regard to an Act of the New Brunswick Legislature, 19 Vict. c. 25., sec. 52, which provided, inter alia, that all fines, penalties, or forfeitures recovered before the police magistrate of the town of Marysville for any violation of any statute or common law shall (.xo far as the .same shall not be in conflict with any existing law) W' paid to the town treasurer. The Minister of Jiistice reported, 28 March 1887: ''In view of the suunnary jurisdiction exercised by police magistrates under the criminal law of Canatla [11. S. C. c. 157. c. 174], it is desirable that in all such cases as this the langTiage of the statute should show dearly that there was no intention to attempt to ihspose of fines. I: ■ 108 «.N.A. ACT, s. !»1 (28), (29).— RELIEF BY COURT, Okimiwal Law. penalties, or I'orfeitiu'cs I'ecovpi'od or enforced under the laws oi' C'aniida eontnuT to anv disposition thereof from time to time made by the Parliament of Canada." Prov. Leg., 1887, 1()5. The Legi.slatnre of Ontario passed un Act, 38 & 39 Vict. c. 1(5., which provided, inter alia, that the High Court shall have power to relievo against all penalties, rorfeiture.s, and agreements for li(piidated damages, and in granting such relief to impose such terms as to costs, expenses, damages, comi)en,sation, and all other nuitlers as the cotn-t think> fit. The county courts ami divj. sion courts .shall have like pnwr (subject t(t appeal) in remind to cHuses of action witiiin their jmiv diction. 'J'he Minister of .Tiisticc, J. S. O. Thomson, considered tlp> applied only to matters within t!ic jurisdiction of the provincial Ipijis. lature, and left the Act to it> operation. (28.) The establisliment, maintenance, and manage- ment of penitentiaries. (29.) Such classes of subjects as are expressly ex- cepted in the enumeration of the classes of suhjcets by this Act assigned exclusively to the loi^islatures of the j)rovinces. ^ And any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclusively to the legislatures of the provinces. ' Retid this with conimenceuient of sec. 91. B.N.A. AC'T, s. 92.— PLENARY POWER. 109 Exclusive Powers of Provincial Legislatures. 92. In eflOth section, which says thattlic judgment shall not be susceplilile of appeal, is an enactment wliici: indicates clearly the intention nf the legislature under this Act— an Act which is assented to on the part of the (^own and to which the Crown therefore is a party— to create this tribunal for the pnr- pose of trying election petitions in a nuuiner which shouUI nnike its decision linal to all ])urposes, nnil should not amiex to it the incident of its judgment being reviewed hy the Crown under its prerogative." " There is not in this case the prerogativ*! right to admit an ap- peid." But their Lordships held that even if there had been the po\v(;i' of admitting an appeal, this was not a case in which an appeal ought to Ik> admitted. On the question whether, not ]>eing an appeal generally, "tlieii> was in the finding of the judge a subordinate part which ought to be brought by way of review liefoiv this tribunal, it was said the jiidfre had found the petitioner was person- ally guilty of corrupt practices," and then that the Quebec Act, liy sec. 267, provided that if it was proved l)efore the Court that cor- rupt practices have l)eencounnittcd by or with the actual knowledge of any candidate, the candidate slionhl be incapable of lieing eleetedand sit- B.X.A. ACT, s. 92 (I).— NO PREROGATIVE. Ill ting in, or voting for a member of, thelpgislativeassembly, "Mr. Ben- jamin conitndf'd that the Aet of Parliament, so far as it engrafted on (lie decision of tiie judge thi.s deela- nition of ineapneity, was tiltm vires tiip power of the legislature of the provinee. Upon that point their Lordships did not think it neces- sary to express any opinion wluit- ever." The first step to be taken with a view to test the validity of an Art of the provincial legislature is to consider whether the subject- matter of the Act falls within any class of subjects enumerated in sec. 92. If it does not, then the Act is of no validity; if it does, then these further questions nuiy arise, namely : " Whether, notwith- standing that it is so, the subject of I lie Act does not also fall within one of the enumerated classes of .subject ill sec. 91, and whether the power of the provincial legislature is or is not thereby overborne ? " See Lord AVat.sou delivering judgment in Dobie v. the Temporalities U().ird, in Quebec Q. B. June IJ), 1SS0,2G L. C. J. 170; in P. C. Jan. 21, 1882, 7 App. Cas. p. U9; 51 L.J. P. C. 26; 4G L.T.I. Where the subject - matter of a provincial Act is not divisible according to tht^ limits of the pro- Boukooin'! viiicial authority, a Dominion Act f'**"- \H required to deal with the whole subject-matter. Eut where by a single Act of the Dominion Parlia- ment there had been constituted two separate corporations for the purpo.se of working a mine within the province of Upper Canada, and the other a mine in the province of Lower Canada, the legislature of (Quebec would clearly have luul authority to repeal the Act so far as it related to the latter mine and the corporation by which it was worked. Ibid. Where a railway is made a federal affair and deemed to l)e constructed under a special Act of the Dominion Parliament, al- though previously a railway incor- porated by a proviiu'ial Act, a pro- vincial Act athrming the transfer of the whole railway, with all its rights and property, to the pro- vincial government, is not sutK- cient to ija.s.s even some inchoate rights. There nnist be an Act of the Dominion Parliament. Bourgoin V. La Compagnie du Chemin de Per de Montreal, Ottawa, et Occi- dental, 23 L. C. J. DO; in P. C. Feb. 26, 1880, 5 App. Cas. 381 ; 49 L. J. P. C. 62; 42 L. T. 414. (1.) The amendment from time to time, notwith- standing anything in this Act, of the con- stitution of the province, except as regards the office of Lieutenant- Ciovernor.' 'Att. -Gen-, ok Canada v. Att.-Gk.n. of Ontario, 1892, 1!) O. A. R. 222; 20 O. R. 31, was an action seeking a de- claration that the Ontario Act, 51 Viet. c. 5., respecting the execu- tive administration of the laws of Ontario was ultra vires of the pro- vincial legislature. The (Miancery Division [Boyd, C, Ferguson, Ro- bertson, JJ.] decided in favour of Att.-Gen. op its validity ; and an appeal argued Canada v. iMjfore Hngarty, C.J.O., and Bur- Att.-Gen. op ton. Osier, and MacLenuan, J J. A., Ontario. was dismissed. Edward Blake, Q.C., in his argument for the respondents, said : " Then when you come to 92 — ' Exclusive powers of pro- visional legislatures,' you find ' tli(» amendment of the Constitu- tion,' a power of the very highest 112 B.N.A. ACT, s 92 (1).— AMENDING CONSTTTr TION, Att.-Gri». o» Canada r. Att.-Okn. (V Ontario. Qi'iRT r. Reci. and most sovproipii cliiirnctfr. The B. N. A. Act, llifrt't'on", niiiy lio ninoii(k'(l liy tlic proviia-iiil lt'<;is- liitiirt> in tiiis most vilnl point, a |K)wer wliic'ii tin- ('uninliiiii I'lirlia- mi'Ut (Iocs not cnjov ii.s to its coii- stitntion, a power wliicli imlcoil could not there subsist without certain safefjuai-ds, (Iipcks and limitations, else the IVdcnd I'oi-m of the Constitution and tlic com- pact on wImcIi it was liascd would l)c imperilled. The Canadian Pai'- liamcnt has at present no power of amending the ('onstitiiliou of Can- ada ; while the |>ro\incial le;fis- latures ha\e power to amend their constitutions, except with rejjard to the Lieutenant-Governor. Hut for tliut limitiition, us alieadv ex- plained, they ndf^hl break the link alto<;ether; they ndf^ht forbid his conununicatinj; with tlie Govi-rnor- Gcneral ; they mi}i;ht alter the tenure of his otlice; they mij;lit abolish it altogether. To axoid such possibilities was the i>ini)ose of the exception. But inasmuch iw they have power to amend the Constitution, except as rej;ards the LieiUeimnt-Governor's otliee, and also, by the 61th section, have power to abolish or alter his func- tions and authorities, it is clear that in all thin<;s, with the exce))- fion of a con^^titnti()nal amendment affectiufj his ofllce, they ha\e power to deal even with the Ijieutenant- Govcrnor. "It is, as I havesaid, ///c r'o«.s7/- tiition itself which is in this respect not ameiulable. 'The amendment of the Constitution of tiie pro- vince.' There is no lindt as to the amendability or repeal of Acts existent at the date of, or which might be passed thereafter under the Constitution. The unity of the executive authority woidd be im- perilled, and the ver> object which was coutemplated by the reserva- tion impaired by any other view. The province can add to the exe- cutive powers of the Lieutenant- (lovernor in provincial affiiirs, when necessary, in order to reiulci' more ellieient the administration of those affairs ; when retpiired in order to effectuate legislati\e pni- visions; and in all respects, j;ir mane to his ofhce, in which fnrtlii r grants of ex(>eutive power may Ih' usefidly given to that ofHcer. It is impossible that by such action the Dominion authority of his position can he alTeeted; on the contrary, the pro\ince thus magnilies his place. There is in clause !)2 a whole .series of what may be caliiHl sovereign powers in the matter of liiw making. "Laws which are 'in rclatiim to matters coming irithiii the niii- mcrafcti r/axsex of subjects ' im l;iws within the exclusive power (if the legislature. The phrase is one the terms of which are |)crha|)s im- possible of enlargement. It .sei'ius to me that a legislature which iniiv make laws ' in relation to matter connng within the classes of oiiii- merated sid)jects ' may make a law to supply any defect, and to grant l)ower to deal with any phase of any matter involving administrative action, for the more perfect oik'hi- tion of exi.sting laws, or the inoiv complete execution of the will uf the legislature, as defined in iiny existing law, as well as in conntH- tion with contemporaneous orfiiiinv legislation." In ilvun r. Beg, 1H!)1, Ifl S. C. B. p. 51(5, the Dominion Parliament pas.sed an Act tninv ft iriiig t6 trustees all the as.^'t.s nf the I'pper Canada Bank, it lieirig in.solvi-nt, for the purpo.se of wimi- ing u|), and then passed anotber Act transferring the assets from the trustees to the Dominion (iovtin- ment. Strong, J., sjiid this might be sjud to be a sjncial and nut a yenertil law ; Init it was, for all that, intra vires of the Douiiuion under sub-sec. 21, sec. 91. [^Sff Note, mite, p. 85.] B.N.A. ACT, 8. 92 (2).— DIRECT TAXATION. 113 (2.) Diroct taxation witl tlio raisinp^ of a poses.* ' III D(»\v V. JJLACK.in S. C. N. B. 22 Fi'l). 1H73, lliU'hii', C.J., Allen iiml Weldoii, JJ., I'or invalidity, Fislier, J., for viilidity, li S. C. X. B, (1 I'ligs.) 300; in P. C. Mmcli 5, 1875, L. 11. 6 P. C. 272; 41 L. J. P. C. 52; 32 li, T. 274, the Judicial Com- mitter, rcvcrsiiif^ the decision (if the Supreme Coint of New Bniiiswiek, held that the pro- vincial Act, 3:5 Viet. c. 47., enal)lin date, and North British Mercantile Insur- ance Co. V. Lamlu'. Bam.say, Tes- sier, and Baby, JJ., Dorion, C.J., and Cro.s.s, J., dissenting, reversed Sup. Ct. of 12 May 1SH3, and ainrmed Sup. Ct. of 2.3 May IHHI (Jette, J.). The Judicial Com- mittee heard all these ciis«'s to- gether, and on .luly 0, 1HS7, atlirnu'd the i'i!ii!? Ill n.X.A. ACT, H. 92 (2).— TAXATION DIFFERENTIATKD fliis Rt4ifiitt', Ik'Ciiiisc they Hnid tlic tax WHS (111 indirect one. Lnnl Ifolilionsc, dclivoring the jiidpiiicnt of tin' C'oiiimittct', lit wliicli wt'i>' prcNciil also Lord Mac- iiajjlitt'ii. Sir Hai'iK's I'cacocrk, Sir Kicliard JJa;j;j;allay, and Sir Hicliard Couch, said : "These appeals raise one of the many (Unieiilt (piestions whieh have ciuiie np for judicial decision under those provisions of the Britisli .Vtirth America Act, 1H07, whieli apportion legislative powers l>e- tween the Parliament of the Uo- iiiinion and the legislatures of the provinces. It is undoubtedly ii case of great constitutional import- ance, as the appellants* counsel have earnestly impressed upon their fiordships. But questions of this class have been left for the decision of the ordinary courts of law, who must treat the provisions of the Act in question by the same methods of construction and exposition which they a[)ply to other statutes. A iimidK'r of incorporated companies arc resisting payment of a tax im- posed by the Legislature of Quebec, and f(Mir of them are the present appellants. It will lie convenient (list to deal with the case of the itaiik of Toronto, which was argued iirst. " In the year 1HH2 the Queliec Legislature passed a statute en- titiiled 'An Act to impose certain direct taxes on certain commercial cor])orations.' It is thereby en- acted that every bank carrying on the business of banking in this jirovince; every insurance company accepting risks and transacting the business of insurance in this pro- vince ; every incorporated company carrying on any labour, trade, or business in this province ; and a nmul)er of other specified com- panies, shall annually pay the several taxes thereby imposed upon them. In the case of banks, the tax imposed is a sum varying witli the paid-up capital, and an addi- tional sum for each office or place of business. " The ap|)ellaut bank was incor- porated in the year IH!')[) by «„ Act of the then Parliaiiieiit of Canada. Its principal \yh\rv of liiisincss is at Toronto, but it 1ms an agency at Montreal. Its ( ii[iit«| is said to lie kept at Toronto, from whence are transmitted the fiimls necessary to carry on the biisiiipss ut Montreal. The amount of it, (•oi)ital at present belonging to \m- sons resident in the proviiui. of Quebec, and the amount dis|)osiil)lf for the Montreal agency, aic ro- si)ectively much less than the amount belonging to other persons and the amount disposable vW- where, " The bank resists payment of tlic tax in question on the grouiul tlim the Quebec Legislature liail nn power to pass the statute wliicJi imposes it. Mr. Justice J{aiiivillc, sitting in the superior court, tooic that view, and cUsmissed nn action brought by the Government oflTiter, who is the respondent. The Court of Queen's Bench, by a majority of three judges to two, took tlie con- trary view, and gave the ])lniiitiil a decree. The ca.se comes lu'ic uu apjieal from that decree of tiie Coiiil of Queen's Bench. " The principal gromidsoii whiili the superior court rested its jiidg- meut were as follows : — Tliat tin' tax is an indirect one; that itisimt imposed within the limits of tlu' jirovince ; that the parliament Iw- exclusive power to regulate Imnii*; that the provincial legislature can tax only that which exists by tliiir authority or is introduced by tiuir permission ; and that if the powvr to tax such banks as this exists, they may be crushed out by it, iirni so the power of the parliaimiit to create them may be nullified. Tiie grounds stated in the clecree of tlic Queen's Bench are two, namely, that the tax is a direct tax, and that it is also a matter of a merely local or private natire in the province, niul so falls within class 16 of the mat- ters of provincial legislation. It has not been contended at the !«" h din TIATKI) H.X.A. ACT, s. 02 (2).— MILL'S DEFINITIONS. lir. , wiiR iiicnr- 855 l,_v nil rliiiiiii'iit ol , liul it 1ms Its ciiiiital )roiit(), t'l'diii (1 tlic fiiiuU the ImsineRs iiounl of its iging to [ifr- proviiu'c of it (lis|insiil)le ncy, iiic re- tlmii tlio ithor iM'i'snns (osnlile cK'- lyiiiPiit of tlip ground tlwi lire linil no fntnti' wliich ice Haiiiviilf, ir (,'ourt, tooii ^d nil action nment officer, , Tlit< Court 11 majority of ook tlic con- he plaintiff a mit's luTc oil pof tln' Court iiulsoii wliicli itod its juilg- s : — 'I'luil tlic ; that it is mil limits of tlip iirliaincnt lia< Tulntc hanks •irislatiirc I'aii xists h_v tlifir hici'il In tiiiir if thi- power IS this oxists, out hy it, 1111(1 pnrliaiiii'iit to ullifiod. The (lot'ire of th( o,n«in<'ly,thiit and tbnt it ncrely locnl or province, m\ 10 of the Hint- ogislation. It lod at the l«f tliat till' |)r(iviiic-iul logi» can tax onlv that whieh exiMs on their authority or permission. And wiien liie a|)|H'liaiitH' counsel were pro- cciMliiii.r til ar|{ue that the tax did not fail within class 1(», their Lord- «lii|)s iiitiiiiated that they would [infer to hear (list what could he said in fa\ imr of the opposite view. All the other {{rounds have lieen argued \riv fully, and their Lord- >.lii|)s must add very ahly, at the liiir. "To ascertain whether or no the tax is lawfully imposed, it will be lii'st to follow the method of inipiiry adopted ill other cases. First, does it fall within the description of taxation allowed hy class 2 of sec. !)',!oftlie Federation Act, namely, 'Direct taxation within the pro- vince ill order to the raising of a revenue for pro\incial purposes'? Secondly, if it does, are we coiii- pelliil liy anything in sec. 01, or in the other parts of the Act, so to cat down the full meaning of the words of see. 02 that they shall not eo\cr this tax? " First, is the tax a direct tax? V n is illustrated "very the quotntior from a ' and clear tl er, the Ir. Fawceft. who, after giving i"'s of inirt and indirect toatioii, mi s remarks to the effect that a tax niav lie ma«le direct or imlirect hy the position of the taxjinyers or hy private liar- T"" ''Ami'I". gains ahont its payment. Donht- * *''^''' less, such remarks lia\c their \alue in an economical discussion. I'ro- hahly it is true of cNcry indirect tax that some persons are hoth the first and the final payers of it ; and (if e\cry dii'cet tax that it atfects persons other than the first payers; and the excidleiice of an econo- mist's definition will he measured liy the accuracy with which it con- leniplat*\s and finhraces every iind- (h'lit of the thing detim^d. Hut that very excelh'ii"(( impairs its \aliie for the purposes of the law- yei'. The legislature cannot possi- bly ha\e meant to give a power of taxation valid or iinalid according to its actual lesults in particular cases. It must lia\e contemplated some tangible di\ iding line refer- able to and asceitainaldc by the general tendencies of the tax and the common understanding of men as to those tendencies. "After some consideration, Mr. Kerr I counsel for appeUant | chose the definition of John Stuart Mill as the one he would prefer toabiile by. That (h*finition is as follows; — " ' Taxes are either dhrtf or huHrect. A liircrt tfi.v is one which is (h'luanded from the very |)erso!i9 who, it is intcndvd or tU- sired, should pay it. Indircrt ta.ren are thos(! which are demand- ed from one person in the expecta- tion and intention that he .shall iiKh'mnify himsidf at the expen.se of another : such are the excise or customs. [Italics by their Lonl- .ships.] '"The producer or importer of a commodity is called upon to pay a tax on it, not with the intention to levy a peculiar contribution npon him, but to tax through him the consumers of the commodity, frfim whom it is snjiposed that he will recover the amount by mejins of an advance in price.' — B. 5, ch. 3. " It is .saul that Mill adds a term — that to be strictly direct a tax nin.st bi- general; and this condition was 1 x'h pressed at the bar. Their H 2 ll; TilK liAMnB Cases. m mi' t i \ I i 1 1 1 116 B.N.A. ACT, s. 92 (2).— INCOME TAX " DIRECT." Lordships liavc not thought it necessjiry to oxumiup Mill's works for the purpose of asfertjuninfj pre- cisely what he does say on thi.s point ; nor wo)dd they presume to say whether for eeononiical ]nu'- pose.s sneh a condition is sound or unsound ; hut they have no hesi- tation in rejectinfi; it for le<;al ptir- |)oses. It would deny the charac- ter of a direct tax to the income- tax of this country, which is idways spoken of as sucii, and is generally looked upon as a direct tax of the most ohvious kind; and it would run counter to the connuon under- standing of men on this subject, which is one main clue to the meaning of the legislature. " Their Lordships, then, take Mill's definition above quoted as a fair basis for testing the character of the tax in ipiestion, n )t only he- canst^ it is chosen by the appellants' counsel, nor only because it is that of an eminent writer, nor with the intention that it should be con- sidered a binding h>gal di^linition, but because it .seems to them to em- body with sidlicient accuracy for this purpose an understanding of the most obvious indicia of direct and indirect taxation, which is a coii'mon understanding, and is likely to have been present to the minds of tiiose who passed the Fedeii'^ion Act. "Now whether the probabilities of the ease or the fiame of the Quebec Act are consideivd, it ap- jKiurs to tlu'ir Lord.ships that the Quebec Legislature must lia\c in- tended and desired that the very corporations from whom the tax is demanded should pay and fuially hear it. It is carefully designed for that purpose. It is not like a custom's duty, which enters at once into the price of the taxed com- mo intricacies nf the bank may ip itself out of Qnebcc eustn- ,y must lie an itouti .)ne, tlic ent onnnot liear to the anuimit the bank tU's lit will not im- t the iiitciitidii Quebec Govern- reasons tlifir tax to be (liivrt IS 2 ofsec. O'iiif ing in the pre- the qnestiou "f i;h is adverse to of the (iuei'ii y, 3 App. CV. •il Uxx wiis im- of a license tn insuivis. But paid directly en vas any penalty re to take one. icense was tu 1"' le preniiuius iv- ;'s, each of wliii'l' icd aoconliiijlly. 1 fall within any ■ct taxation, ftH'l it was appiu't'nily B.N.A. ACT, s. 92 (2).— TAXATION & DOMICILE. 117 u . with the view of bringing it under class 9 of sec. 92, which relates to licenses. In Reed's case, 10 App. Cas. in, the tax was a stamp duty on exhibits produced in courts of law, which in a great many, per- haps most, instances would eer-- taiiily not he paid by the per- sdh first chargeable with it. In S.'vei:>'s case, 2 S. C. E. p. 7C\ tile tax in (piestion was one foi lieenses which, by a hiw of the legislature of Ontario, were re- (piireil to he taken for dealing in lii|nors. The Supreme Cotu't held the law to be ultra vires, mainly uii the grounds that such licenses dill not fall within ehiss 9 of sec. !):2, and that they were in comliet with the powi'rs of parliament under chiss 2 of see. 91. It is true that all the judges expressed opinions that the tax, being a license duty, was not a direct t«x. Their reasons do not clearly appear, Imt, as the tax now in (jiier-tion is nut either in substance or in form I' lieensi' duty, further examination of that point is unnecessary. " The next question is, whether the tax is taxation within the pro- vince. It is urged that the bank is ,' Toronto corporation, having its doinieile there, and having its capital phiced there; that the tax is on the capital of the bank ; that it must therefore fall on a jier- soii or persons, or on property, not within (iueliec. The answer to this argument is that (dass 2 of see. 92 does not reipiire that the persons to he taxed by (iuebec are to lie domiciled or even resident in (^ndiec. Any person found within the province "niiiv legally be taxed there if taxed directly. 'This bank is I'oniul to he carryii'ig on business there, ain' on that" ground alone it IS taxed. There is no attempt to tnx the capital of the Imnk, any niore ihiiii its profits. 'J'he Imnk ilstdf is directly onU'ivd to pay a sum of money ; hut the legislature has not chosen to tax every bank, small or large, alike, nor to leave the amount of tax to he nscer'nined by variable accounts or any uncer- The Lambr tain standard. It has adopted its Casks. own measure, either of that which it is just the banks .shotdd pay, or of that which they have means to pay, and these things it ascertains by reference to facts which can lie verified without doubt or delay. The banks are to pay so much, not according to their capit4d, but ac- cording to their paid-up capital, and so much on their places of busine.ss. Whether this metho'.I of assessing a tax is sound or unsound, wi.se or unwise, is a point on which their Lord.ships have no opinion, and are not called on to form one, for as it does not carry the taxation out of the province, it is for the legislature and not for courts of hiw to judge of its expediency. "Then is there anything in sec. 91 which operates to restrict the meaning above ascribed to sec. 92 ? Class ,'J certainly is in literal conflict with it. It is im- possible to give exclusively to the Dominion the whole subject of niising money by any mode of taxation, and at the same time to give to the provincial legislatures, exclu,si\ » ly or at all, the power of tlircct taxation for provincial or any other purposes. This very conflict between the two sections was noticed by way of illustration in the case of Parsons, 9 App. Cas. p. 108. Their Lordships there .said : — ' So " the raising of money by aif mode or system of taxation " is t numerated among the hai,i , I '..I 118 B.N.A. ACT, s. 92 (2).— POWER UNWISELY USED. poses, that subject i'alls wholly within tho jurisdiction of the pro- vincial led by an Act of the QucIk'c Legisla- ture, 43 Sc 44 Vict. c. 9., tipon ex- hibits used in the courts of justice of the province, be justified inuier this sul»-sec 2 ? Earl ScdlKU-ue, L.C., adojited what Mill on Politi- cal Economy sjiid — that a direct tax is " one which is demanded from the very ixn'sons who it is inleniled or desired should \my it." And then the converse defiuition of indirect taxes is, '• Thost- which QUKHKC V. Rkki). Att.-Oen. fob QCEBKC t'. Refj). I i; !i^ 120 B.N.A. AC'J', s. 92 (2).— TEST OF TAXA TJON. arc (Icinandctl from one person ill the «'.\|n'ctation and intention tliat he shall indemnity liimself at the expense of another." Can it lie said " A stamp duty in tlie nature of a fee payalile upon a step of u proeeedinjj; in the administra- tion of justiee is one whieh is de- maiidetl from the very persons who it is intended or desiivd should pay it ? It must lie ]iaid in the course of thele^al proceeding, whether that is of a friendly or of a litigious na- ture, . . and from the very nature of sueli proceedings, until they ter- minate, as a rule, and S|)eaking generally, the ultimate incidence of of such a payment cannot be ascer- tained. . . In most proceedings of a contentious character the person wild pays it is a litigant expecting (>i' hoping for success in the suit ; Hid, whether he or his adversary will have t' iK'cn so generally exercised by tlu provincial legislatures, that it is dc sirable to give the legislature nl New Brunswick every opporliiiiilv to amend the Act so that it may, il that is po.ssible, Ik* brought within the legislative authority of tliatle^'is- hiture. Prov. Leg., 18H0, p. 571. In Att.-Oen. foij Qitkhkc r. Tut Queen Ixsuk.vnck Co., in Sup. C. M tluMlceisioiKif f V. Hi'cd, iind p L'onsiik'nitidii ml. The niiii- rdships dill ikiI lis to wlictlicr Ipfji.sliiturf cm tioii of IVcs ill [n-ofccdiii^s ill for tlH'pcncnil ■oviiici', Imt ill uiid or of till JHstit'c in till' tor is, however, IICC to tllC pi'D- wcr to iiiipoM' tlit'i' i'Mscs lia.'> xerci.st'd liy tin vs, tliiit it is tie- l<'};isliitiii'e (i[ ■y opportiiiiilv i» that it may, il liroujjht witliiii rityof thatiejfis- , 1880,1). 571. tQuKHKCcTlIF. Co., ill Hup. C. 877, 21 L. ('. .1. iilfiriiU'd by (^lu ■ 1877 [Doridii, Monk, Tc.xsier, dissenting], 22 ill P. C. Julv Cas. lono, .Vh V Geo. Je.'isel, iidgiiient Till on was whetliiT If Queht'c Aet. 'h imposed a tiix es of iissiiraiice, Its or renewals, I'd by the H. N. .•r see. 02 Tiie t, 2 and J) " iiinv lowers font'crreii if tlie Doiuiiiien on. Assumin;; (lie (lue.stioii is s Imhmi (lone is e powi'is." Hi" hord.ship (p. 1100), after finding it (lid not come under .sub-see. 9, see. 92 [ifpthat M-etion, j). 127],eonliiiued: The siiiflle point to be ileeided on this [sub-sec. 2] is whether u Stump Act— an Act imposinj,' a, .xtaiup ou policies, renewals, and receipts, with provisions for av()id- iiif? the [Milicy, renewal, or receipt, iiMi court of law, if the stanip is not atli.Ncd,— is or is not direct tJixatioii? . . ■ Wimt is tiie iiieaniu"; of the words as words of the article? We may consich'r tlieir nieiiuiuix as words used in the .sense (if political ccoiuiniy, or as words used ill jurisprudence in the courts (if law. Taken in either way, there is a muUitude of authorities to slidw that such a stamj) imposed liy the lefjislatiire is not direct tii.xatiou. TIk' political economists are all agreed. There is not ft sinjrle instance produced on the other side The number of in- '^taiices cited by Taschereaii, J., ill his eliitidrate judf^meiit it is not neeessmy here to do more than refer to." "As regards judicial in- terpretation, there arc some English ilecisidiis and sevcnil American de- cisidiis on tile subject, many of wliieli are referred to in the judg- ment of Tasehcreaii, J. There, again, they are all one way. They all treat .stamps either as indirei't ta.xation, or as not being ilirect taxation." " Lastly, as regards the piipulnr use of the v ords, two cyeldimMlias at least have been pro- duced, sluiwiiig that the popular use (if ilic words is entirely the same in this ropeet as the technical Use (if the words. And here, again, there is ail utter (h'licieiicy on the Itarl (if the appellant in producing a_ single instance to the contrary. That iieing so, it is not necessary io consider the seicntilic detinitioii of direct or indirect ta.xat ion. All that it is neeessiry for them to siiy is, that (inding 'these words used in an Act of Parlianieiit, and finding that all the then known definitions, whether technical or general, would exclude this kind of taxation from I ■ I . f (|UEEN In6IJI> legLslature of *^^,^ ^^ the entegory of direct taxation, Att.-Gbn. ror. they must consider it was not the 'i"™"*^ ''• intention of the KiKjltind to include it in the; terms ' direct taxation,' and therefore that thn imposition of this st4imp duty is not warranted by the terms of the 2nd sub-sec ion of section 92 of the ])( •union Act. That being so, the appeal fails." The cases cited by Ta.scliereau were LoiighlMirongh v. Blake, 1820, 18 S. C. v. S. (5 Wheat.) ;{17; Vea- zie Bank v. Fenno, 18(51), 75 S. C. U. S. (8 Wall) 5;«; raeifie In- surance Co, V. Soide, 18G8, 74 S. C. U. S. (7 W^ill) 433 ; and 2 Mill's r. E., B. 5, decision of Crea.se, J., to tlie Supreme Court of British Columbia sitting as a full court ; that al- though the amount of the fine im- posed by the conviction is sniiiil, the question in issue is of ^rciit l)iiblic imporlauee, involving as it does the power of the provincin! legislature under the B. N. A. Act to discriminate in the imposi- tion of direct taxation for purpose.^ of revenue and police; the ])io- ceedings against the respondent, and this api)eal, having been under- taken by the petitioner by the direction of the Government of the province of Briti.sh Columbia ; and the petitioner asked for t^[)Qm\ leave to ap[)eal. By Order in Council dated 3rd April 1886, and on the report of the Judicial Connnittee tlated 20 March 1886, who, having heard couiLsel for th" |k- titioner, reported their opinion that leave ought to be granteil to W. K. Bull to enter into and prosecute his appeal from the order of Crea.xe, J., of 21 Aug. 1885, upon depositing in the Privy Council the siiin of .?300 as security for costs, order accordingly. On 13 Aug. ISHO, the Regi.strar of the Privy Council writes that as no steps were taken for the prosecution of this appeal, ami as on 22 July that (h'part- nu'nt was informeenvil liuids belong to the Crown for llRk'uetit of the jiroviiu-es in which ilieyiire situate [see ante, p. 94]. .SVf also Att.-Gen. of Ontario r. Jleiwr, 18 .Julv 1HS3, 8 App. Cas. ;i)7; iJ2L. J. P. C. 84; 49 L. T. 312; 5 S, C. 1{. 538 [sec fully ir. 10!) J. Ami ill Attounev-Genkual of Biiirisu CoLUMUiA V, Atxobney- Gi;nei{al ok Canada, April 3, St. Cathe- 1889, 14 App. Ca,s. 295; 58 L. J. «-£„^— " r. C. 88 ; GO L. 'J". 712, and in Co. v. The court below 14 S. C. 11. 315, it was Qc"""- held that "public lauds" in this section included mines and mim-rals upon such lands, although the lands had been granted for a railway, Columbian Railway Acts, 43 Vict. c. II. and 47 Viet. e. 14. No transfer of the prerogative right theie took i»lace, the grant not l)eiiig to the Dominion l)ut to the Canadian Pacific Railway. [Hee sec. 109 for full report.] (G.) Tlic establishment, maintenance, and manage- ment of public and reformatory prisons in and for the province.' ' By llio Dominion TemiK-rancc Ad. 1S7H, a punishment of im- liriMimiicnt was ordered on all who i!>oM li(|ii()r after third offence I vilmvwY in the Dominion the Act Iwij Ikvu mloptctl by the uuiuivi- palitie.s, aud the Judicial Committee field the Act valiil. Sec Russell c. The Queen, 1882, 7 App. Cas. 829; 51 L. .1. P. C. 77; 4G L. T. 889 [post, sub-sec. 9J. -fe 124 B.N.A. ACT, s. 'Jl! (7), (H).— CIIAiaTIES, WHAT? DoniE V. TiiK, t11mpora1.itik8 Board. Ru.ssEi.1. 1'. The QCEEN. Rk(i. r. Wason. (7.) Tlio ostahlishmont, maintenance, and maiiatfc. mcnt of hospitals, asylums, cliarities, and eleemosynary institutions in and Tor the pro. vince, other than marine hospitals.* ' In DouiK r. Tiik Tkmi'ouam- TiKs UoAuu, Jim. 121, 1H82, 7 App. C'as. i;W; 51 L. J. P. C. 20; 10 L. T. 1 ; ami in tin- i-onrt lu'low 2() L. C. J. 170 [see full report, suli-soi'. 13], tlu' Jiulic'ial Coni- niiltrc lu'ld that tlu- Qiicl)tr Act, .'W Vict. V. {51., wliicli was an attempt to rc[ioal an Act (tf tlic province ol' Canada, 22 Vict. G(i., cieatin<; a trust corporation of tlic funds of the Presbyterian Church of Canada in connection with the Church of Scothuul, and which had its sphere of location and duty in OnliU'loiiiiil t^uehcc, was not valid under iliis sub-section. Held al.so tliiit nn] a.ssuniinf? the temporalities I'lmil niif^ht be correctly descrilnMl il^ " charity," or as an " eU'eniosyiiiu v institution," it is not in any s('1im< <>slabli.shed, maintained, or ni;uiii(rri| " in or for " the province of QikIkc, an the Dominion Act, have (halt with this (piestion of the liqiwr Irallic, and that, therefore, when tlu^ provinces were given exclusive powers to make laws in relation to nninicipal institution.s, they wcrv givt'U the exclusive jxiwcr to iniiki^ these lifpior laws. But the virv object of the Dominion Act was lu take away from the provincial legislatures some of the powers they (Kisscs.scd, and ccnifer thn* lowers on a central authority, mid therefore it could not be saitl thcv had all the |)owers of legislation which before they could excrtio' through their nnuiicipal bodies." [.S'laleil on tliis liead liy wlmt is iimv H. S. C. 173, l>y tlie 2.)tli xrtiiiii of wliieli it was provided lliat every will'nl violation of any Ai't of the rarHainenl of Canachi, (ir (if any h'fjislatnre of any pro- vince of' Canada, wiiieli is not iiimte an olTenee of soine other kind, shall he a misdenieauour and IMMiishahle aceordingly. I'arlia- lit tliMS, so far as it eoiild, re- iDfjniseil the power of the provin- cial leijislatures to make hiws, the violation of wliieli slionhl be erini- inal; tuid without interfering \\itli cases in wliieh a speeial sanetiou had Ik'cii ajiplied, fjave, as far as it eoiild, a criminal aspect to the will'nl la'eaeh r)f ])rovincial Acts. I'l-olialily the attention of the I'livy Council was not, in Ki'sskm- V. Uku. [see next sub-soc], ath'- qnately directed to important eon- siderat ions which would have affec- ted |K)ssilily its decision, and al- most certainly its reasonin<^. For example, stress was not hiid on the great division of provincial juris- diction involved in "Municipal Instiimions," or on the vital but sometimes neglected principle that neither tile jieiieral nor the local leirislature can attract to itsjdf a jnrisdiction, in matters assigiunl exclusively to the other power, by the device of, ill the one cas<', en- : lai'Jlinj;, or, in the other, restricting I the f,'eoi,'niphieal urea or conditions 1 in respect of which it proposes to legislate ; and that we must recog- nise, as iin ineonveiiience insepar- ' able from the fech-ral system, a lack of power anywhere to make uni- form regidafi()ns,eo-extensive with the whole Dominion, on certain subjects relegated to provincial aiitiiority. A fuller .K-velopment of these consich'iations in that case would have i»rcveiited serious em- barra.ssnicuts in dealing satisfac- torily with Ho S. (". H. 185, was a case in which un(UT the Quebec Act, 42 .t b'l Vict. c. I. s. I, a penal suit was instituted against tlio defendant for not (dos- ing on Sunday his public house, and it was there held by Hitchie, C..I., Str«»ng and Fournier, .J.I., that these were police regulations within the power of the legislature of the province. lEeiny, Tascdierean and Gwynne, J.I., were of opinion that a prohibition to have the con- viction revised was rightly granted, being of opinion there must be both the keeping open and sidling to constitute an oil'enee, and .he ,; 'ualty was for an infringement of both, and that the writ against the defendant (diarged no complete oifence but inei|>ini(>n. Then I think this api)eal must be dispo.seil of without pronouncing any opinion upon the question of statutory interpretation wlii(di was .•irgned iiefore us, for it is plain, as 1 read the authorities, that this is not a ca.se in which the writ of pndiibition will lie." See City of Frederieton, 3 S. C. R. ')().') [sir N[ote,sec.{)l, p. GO] ; .Jonas r. Gil- bert, Feb. 1 1, IHSI, 5 S. C. U.35G. The loealh'gishiture have the cU-ar 1 i^ht to make hiws respecting tavern Poui.iN I'. Con- I'OKATION OK (JUEIIKC. HussKi.i. r, •it:; 1 2(5 n.N.A. ACT, H. 02 (0).— MERGED RIGHTS, Hwi. V. KlIAWI.KV. I I Doyle v. duffbhin-. licenst^s, and to iin|)otio fliios, |)cnnl- fii's, i';(.'., for riil'orcinji; siidi liiws : lllmiin r. ('orji. (,'etors to earry out Canadif Temperance Act, ex parte Wbi'lau, May J), 1M!)1, 30 S. C. N. B. 5SG. T.vxES. — Munic'iiMiliMes can in- eivaso tbe tax payable for dclav in piiyin<; (be orif;inal demand, hihI the additional tax will not In' hdii as interest, but as an extra biirdii, imposed for delay. Lyneh r. Canadian N. W . Land Co., m S. ('. R. 201 [see Note, sec in', sub- sec. 10]. Where a municipality possos.«(< a local 'option bye-law, and is i|. self afterwards joined to aiiotlur luuuiciimlity, tlic newnninici|mlitv, inider the Muuici|Ntl Act, 1H!», s. 390, R. S. M. c. 1000. .s. 3;!il, nuiy repeal tliis bve-luw. DovIh V. Duffcrin, 1S92, 's Man. R.g, R. 28(5. (0.) Shop, saloon, tavern, auctioneer, and otlicr licenses, in order to the raising of a revenue for provincial, local, or municipal pvu'posos.' ! I In re Nova Scotia Lu^uoit Act. ! I ' III re TiiK N(»v.\ Scotia Liquor Act, 1H80, c 3., Att.- Gen. Longley reported : " Tlie interpretation of this clau.se has elicited endless controversy by the best legal miuds of the king- no limit to tlii> authority, and the same objei'tiiiii> which are oih'ii to the severity of the conditions iq)on which liccnsf's are granted udght U' urged agaiu*! the severity of tlw penalties im- jiosed." Rut in l(l to cla.sh with sub-see. 3 of sec. i)l), would clearly he a law relating to a matter of a merely local or pri- vate natui*e within the meaning of this sub-section, and therefore one ITS. B.y.A. ACT, s. 9L' (9).— LICENSE ON INST'RANCKS. 127 Ic for (IpIbv in •k'lnitud, iui,l ill not 1h' liHil j'Xtni liiinliii Lj'iic'li r, iiiiid Co., 19 Note, sec jii, vlity possoitM iiw, ami is i|. P(l to unoilur kriniiniei|mlity, il Act, isoil, UKX). s. 3;ll), •-lnw. Dovlf 1 Man. R.Q. and otlicr a rcviMnic purposes o limit to this iiu' ol)jtrli(iii» lie severity of which licenses ' iirgetlagaiurt penalties iiii- h cases lie was limit. I'lw. \f arch 5, 1873, , a case of nn paiish of St. l1 Oi tlie pro- swick, to niis' ing a rnilwiiy L^forc the l)u- ito opeinlion ittee, in rewr- the Sn|iiviiiP iwick ami up- jf the proviii- latter, decidi'ii question, evfii in sub-.-^c. 2, ore argued to 3 of sec. 91), iw relating to Y local or pri- 10 meaning of then'fore one wiiicli the provincial legislature VIM coniiM'l. nl to pass unless its siilijcet-inatlcr could he distinctly siinwn to lait within cue or (tther (if til"" <'l;is^cs of suhject.s specially fiiiiaierated in the Dlst section. Ser li'Union St. •Iuc(|ues de Montreal r. Uoli.sh-, H .lulv 1W71, L. 11. « I'- I'- 31 [scenntr, p.H4]. In Severn's east-, Jan. 2S, 1H77, 2 S C. U. 70 [sec Hcc. 5)1, suli-sec. 2], the tax in (picstion wiis one for liceu.ses which by the law of the Legislature of Ontario wi'ie re(|uired U> In- t4ikoii for (li'iiling in li(pn)rs. In the ease of II hnwer the Supreme Court held llic law ultra rires, nminly on the grounds that such licenses «li7], after reiuhng sub-see. Ix-fon- the 1st May in »'ach year, from the revenue officer of the dis- liict, and to lemain continimlly AKca Co. under lieeuM*. Tt then, hy the 2n(l Att.-Okn. fok section, cnact.s what the pri<'e of Qckhkc v, the Iicens4' is to Im-. And reudinsr ^'^''•''" ""i'"- it shortly, it anxMints to this, that the price of the license shall consist of an adhesive stamp atlixed to the policy, or receipt, or renewal, as the case nmy Ik*. The amount of the adhesive stamp is to U", in ca.se of fire, ■'{ (K-r cent., and 1 jm-i- cent, for other assurances on the pre- miums |Niid. Then the 4th s<>ction enacts that anyl)ody who, on U'lialf of an assurer, slndl deliver any policy, or renewal, or receipt with- out the stamp shall 1h> liable for such contravention to a |H>nalty of .*<50. The 5th section .says that every assurer iMmnd to take out a license shall In< liable in such a case to H |M'nalty not exceeding .■^50 if it has Ih-cu delivei'ed with- out an adhesive stamp. The (Jth s«'ction says that every in-rson who atli.xes the .stamp shall Im> Im>uu(I to cancel it, .so as to obliterate it and prevent its In-ing us«'d again. And the 7th s«'ction makes all |)olicies, pieniiiinis, receipts, or ivnewals not staiii|H'd as requireor)ited, and the Act is not toapply tonssnr- anees not within the jirovince. The only provision of the QneU'(! Licens4' Act which it is neecssarv to refer to is the 121th section-^ ' For every licen.se issued by a revenue oflicer then^ shall be |)aid to such i-e\('Uiie oHicer, over ami above the duty payalde tlniei'or, ii fee of i^l by tlie pei-.son to whom '"; is issued.' Xow the tirst point whieii struck their Lord.sliips, and will strike everyone, as regards this licensing Act, is that it is a complete novelty. No such licens- ing Act has ever iK'en seen In-fore. It pur|)ort.s to Ite a licensing Act, but the licen.s«'e is not com|)elled to |)ay anything for the license, an is no immiiiIIv at all u|hiii iIio li('ciis<>c for not takiii;; It up ; and, i'lntlirr lliiMi that, if iIm- policit's ai'c issurd with the Ntiini|> they a|i|M'ai' to In> valid, alllioM;;h no license has U'eii taken out at all. The restdt, theiffoie, is, (hat a lieeii.s*' is •;i'aiited which there ai'e no means of coni|)ellin<; the lieens)>e to take, and which he pnvs nothing for if he (i(N's take ; which is certainly a sin; to In- stated of a license. They say, (mi the face of that statute, 'The |ii-ice of each licens<> shall consist,' and so on. Mut it is not a pi'i<'e to In' paid liy till' liccns«'e. It is a price to l>e paid hy anylMidy who wants a policy, lH>cause without that no policy can Ih' obtained. It may In; that the company huysthe ndhesiM! stamps and allixes them, or it may he thai theassincd laiys thendhcsixe stamps and ai1i.\es them, or pays an ollicer of the company the money ncccssai-y to purchase them and adix them ; hut wIkm'xci' does it complies with the Act. "Another oliser\ation which imiy Ih> made on tlu' Act is this, that if you leave out the clauses ahout the liccns' the efTect of tht^ Act remains the same. Il is icidly not Inn;; more nor less than a Stamp Act if you leavt! out tho.se clauses. If you leave' out every direction for taking out a license, and every tiiin;^ saiti ahout the price of a licens<', and na'rely leave the rest o!' the Act in, the (Jovernmeut of the pro- vince of t^uehe<' olilaiiiM exactly the .Sana- amount, hy virtue of the statute, as it does with the licen.se clau.s«'s remaining in the statute. The penalty is on the i.ssniu;^ of the policy, receipt, or renewal; it is not a penalty for nt)t taking out the license. The result, therefore, is this, that it is not in suhstance a license Act at all. It is nothing naire or less t!ian a simple Stam[> Act on |K)licies, with provisions re- ferring to a liccn.s*', iM'caus*- it must 1)«> |)resunH'il the framers of the statute' thought it was necessary, in order to cover the kind of tax in ipa'stion with le;rid sanction, ilm| it should he nnule in the slia|H' nf the price paid for a license. ||' that is so, it is no use considerin;; how far, independently of |||i>m. considerations, the !)th sul>-seclioii, section !I'J, would authoii/.e a siim of moiK'y from an iiisurjiuce cmii. pany in i-cs|h'cI of a licence. Wi|l| rej^ai'd to the precedents citcil, ii was (dieted on U'half of ilie iip. pcllaiits that tlids, as regarcially, sold by the trader in •he previous year. They vvciv all ca.ses in which the price liclunllv paid by the trader for the licriis' at the time of granting il vviisn.s'cr- tainud by these consideralions. It was a license paid for by thelnilii|i llu'ii fDiisidfrcd wlictlicr it cmiin iindcr siili-sce. 2 («(' tlmt s<'('tii)n for tin- (•oiiiplc- tioM of his jmlj.'nn'iit, p. 120 1, and iitliniicd llic dccisii)ii ol' til*' Ct. (-1. H. I'cir (^iirlwi', and disuiisst'd Ilic ii|)|irjii, Tlmt ciisc was examined in Hank of Toidiito v, riiiinlx', in q. II, (iiifliir, .Ian. 211, IHH.j, 2!) L. I', .r. 78; in V. V. July 1), 1,SH7, 12 App. ('as. at p. 5HI ; ")ti !,. ,1. r. C. 87 ; .')7 L. T. 377 [vrt- tinti;\i. II.'I]. Alt. -(It'll, of Qnclicc r. Uccil, ill court lirlow H S. V. 1{. 40S; ill 1», ('. Xov. 2(1, 1HS4, 10 A|ip.Cils. Ill; -)l L..J. 1». V. 12; 52 L. T. ,'!!»;{; ;{;{ \V. I{. V>\H [.sec Biili-scc. 2, (inir, J). Hi)]. T\\r (|ii('stioii ill llic latter ea.Hc was us to tlie Milidily of a stamp duty on t'xiiiliits pi'Dcliiccd in courts of law, wliicli ill n <;n'at many instances wciiilil not 1)1' paid by the person first cliai'fjcil with it. Ill 1K7H till' Dominion iMis.si'd I till' 'r('iii|M'rjiii('(' Act. This Act I WHS jii'lil to Ik' valid in 1HH2 l>y I tlif I'rivy Coimcil in Eiij^land. |Rrssi;i.i. r. Tin; (^i'KKN, in S. ('. jN. H. Maicii ISSl, 20 S. (\ N. B. (l I'li-s. mid n.) -).•{(! [Allen, jC.J , W.ldoii, Wclmoic, and Dnll', J.I J; in 1». ('. .Inn,. 2;j, 1H82, Mr .Vlip. Ciis. 82i); -)! L. .J. IP. (". 77; K; L. T. SH{). .Sir IMniiiiijru.. K. Smith (K-livercd judgment, ihciv Itcinir also present Harn.'s Peiu'ock, Sir UoU'rt [Jollier, Sir .liimes llaunen, and Sir Hiehard Coiieh. .Sir :M. K. Siiiiili siid : "This is appi'iil from an order of the Su- eiiie ("(.iiri of the province of New Brunswick, di.se|iiir<;iii}; a rii/r nisi ehich had Ik'cii i^ranted on the lapiilication of the appellant for a teerfiomri to remove a conviction jmaih' Uy the poji,.,. ma-ristrule of jthe city of Fredericton against Ihmi for unlawfully .selliug jutoxi- S 2310, cutinR liy the .Snprtuiie Court of Cannda, which held, Mr. .Inst ice lleiiry dissenting, that the Act was valid. (The ea.sc is rc|iorte(l in .'{ ,S. C. 11. .W').) 'I'll*' present appeal to Her Majesty is hroiiglit, in elTcct, to re- view the last-mentioned decision. " The preamlile of the Act in (piestion states that ' it is very de- sirahle to promolo temperance in the Dominion, and that there should 1m> uniform legislation in all the ))rovinces respecting the Irailii' in into.vieating liipiors.' The Act is (liviy not less than one-foni'lh in numlier of the electors (i{ any connty or city in the Domi- nion ror >i;;ainst llie 'idoplion of the |,efiiion, the (}o\t'rn(a- <}ene:ai, after certjiin prcseilicd notices and evidence, may issue a proclamation, "mhodyiny such |m'- lilion, with a view to a poll of the electors heiiif.; taken for or agaiii>t its ivloplion. When any petition has Imh'U adopted by the electors of the county or city named in it, the (Jover'ior-trcneiid in Council may, after the exjtiration of 60 days from the day on which the [ictition was adopteil, I y Order in Council pub- lished in the Uazelte, declare that the second part of the Act shall Im- in force and take effect in such county or city, and the siuueis then to become of force and take effect accordiiiffly. Such Order in Coun- «'il is not to 1k' rexoked for three years, and only on like |)etition and proccdui'e. "'I'he most im|>orlant of the prohibitory enactni ■ contained in llu? second pc : of the Acl is see.')!), « licli iiiac'is that, from the day on which thi-i part oi this Acl comes into for^'e and tnkcs ertect in any county or "-ity, and for so lon<; thereafter is the same continues in f( rce therein, no \m- son, u'llcss It Im' I'o" exclusnvly sacramental or niedicina! purposes, or for hond Jidv use in some ail. traile, or nmiiiifactiire, under I'.ie regulation contained in the fc>urth sub-section of this section, or as hereinafter anthori/.ed by one of the four next .sub-sections of ihis section, shall, within such coiintv or city, by himself, his clerk, servant, or ajjent, expose or kcfii for .sjile, or directly or indirectly on any pretence or ii|ion imv di'. vice, sell or bart«'r, v.. 'ii considci-. ation of the puicha.se of any other projH'rty jrive, to any other pcr.son, any spiritnons or other into.xicatini; liquor, or any mixed liquor, ('ii|iiilj|e of liein;; used as a iH'verap', nnij part of whi<-li is spirituous or otiier- wise intoxicating.' "Sub-sec. 2 provides that 'iieitlier any license issued to any distiller or brewer ' (and after (■niiiiirnitjii.; other licenses), 'nor yet ary diher description of liceiis*' wliiitever, shall in anywise avail to render legal any act done in violatiiniof til's section.' "Snb-sec. .S provides fcrtliesile of wine for sacramental jmiiimws, and snb-.st'c. 4 for the side ef intoxicating liquors for incdieiuiil and manufacturing purposes, iIkm' .siK's being made subject to piv- scrilMHl conditions. "Other sub-s(ctions provide tljal producers of cider, ami distiilei> and browei'.s, may s«>ll li(|ii(Pi's ef their own uianiifaclure in cei'lnin (piantities, whi(di may be teiiiieil wholesale qiiantilicH, or for cxiiort, subject to prescriU'd colHliti(j|i.>, and thcic are provisions ol a like nature with respect to vine-^ji'dwiiij; companies and manufactinvis uf native wines. "The third part of the Acl iiiiiei. (sec. KM)) thai whoever expos'* for .sale or sells intoxicating li(|ii(ii« in violation of the second |Mirt of the Act, should be liiilile, en summary conviction, to n |Kimliv ;.i not less than flU dollnis ioi the tii'st offence, and not less tliiiii 1(H) dollars for the sei-ond (ifteiKr, and to Ih- iiiiprisoned for ii terin not cNcc'ding two nionllis ti . tli'' iliird and every sub.sccpiciit (illt'iiee; i,'i inloyicaling liquors in ivs|)tft to which 'iny such ott'cnce Im- Iktii committed to Ik; forfeited. "The effect ot the Acl vvliHi brought into force in uny cuiiiii; )N. such ciMinlv f, liis clerk, ;|)()S(' or kci']i or iiuliri'ctly, upon liny tie- . ',11 I'onsidci-. • of any (illur OtlllT iHTSdll, I'V iiitiixicatitiij; liquor, ('ii|hi)iIi' iK'Vcrap', and tuous or iitlicr- I'SthntMu'itlicr o liny ilistilltr ir <'iuinicraliiis; yi't ary (iIIht iis«' wliatcvcr, vail to ri'ihliT ill violatioii of idfs for tlu'siile I'lital jmrpos's, ir till' sale I'f i for iiii'iliciiiul purposes, llif* iulijiH;! to pri'- nns provide that , iiiul disliili'i* s»dl liijiKirs lit •tun' ill eerliiin uav '«' terniet'i 8, or for cxiiiirt, M'd ('(iiiditiiiih, sioiis ol' a iiki' to vinc-trniwiii;' iiniil'ai'liirer>i of •f tlif Act ciwcls liocvcr cx|Mix'< ixicatiiiff li(|iiii.- sfi'oiiil im'l t'l U' linlde, I'li u, to M iH'iialu ) ilolliirs tor thr not Ics- tlw.i second (dlelin, )iii'il for a t''i" IllOlltllS iV. till' (sccpli'llt (iHi'llif; ipiors ill iV!.|Hrt oiTi'lu'C lia- Ih'iII rft'itt'il. the Act will" ■ ill any eouni; B.>r.A. ACT, s. 92 (!)).— T)ELEG>TIOX OF POWETIS. I'M or town within the Dominion is, dcscriliiii',' it f;enenilly, tf. prohiliit the sale of intoxieatir^ liipiors, (xcepl in whcdcsale ipmnlities, or for I'Oitaiii siM'cilied purposes to rf'<;iil«te the trallie in the excepted cases, and to make sales of liquors in violation of the prohibition and remilatiims contained in the Act eriniinal olfcnces, punishalile by fine, nnil for the third or siihse- i|iicnt ofFcnct! hy iniprisoiiniont. "It was ill the first /..

lalive powers whatcxer. Jl contains within its(df the wliide Icfjislalion on the nialler.s with wliicli it (h'ais. 'Pile pi'ovisiou thai ccitain parts of the Act shall come into (iiH'iation only on the l)etitioii of a iimjoiily of eh'ctors does not confer on these persons IH.wcr to Icf^ishit ', Parliament it- I wdf enacts the condition and evi-ry- I thiiii; which is to loUow upon the jcnndilienied to conic within the y this Hoard in the case (d' till' (.'ili/.eiis' Insiirauee Co. r. P.iisoiis, Nov. 2(5, IHHl, 7 App. ('as !)(5; 5\ h. .1. P. C. 11; 45 L. T. 721. [Ser siili-sic. '3, s'\'. 1)2. J Aeconling to the prn.eiple of construction there pointed out, the first ipiestimi to Ih> determineil is, whether the Act now in ipics- tioii falls within inn (A' the classes I '>. 1b * >\ ■ ; : i " 132 n.X.A. ACT, s. 92 (9).-.L0CAL INVASION. UrssKLi, V. Tub <,f subjects oiiiiin.iatod in wc. 92, Qi'KKN. „mj n.ssifjnrd cxclnsiM'ly to tin- Irflisliitiircs ol' flic |>i'ti\ iiict-s. !l' it (i(H's, tlu'ii lh<- further (|ii('sti( ii would iiris,', ii.imfly, wliftlii'i' llic .subject ol' tiif A<-l d(M'S iKi! also I'idl witliiii OIK- of tlif ciMiiiiiniled cliisses ol' suiijccts in see. 5)1, inul su diM-M not still In-Iou^ to ill)' Dominion Piitlinnicnt. Mnt it' ilie At't d(N'.s not I'miI within any ol' the elass<'s ol' .sulijcct>> in see. f)2, iio I'nrtlit'i' i|ni>stioii will remain, I'oi' it eaimol l>e contended, and inileed was not contendetl at tiicii' Lordships' har, that, if the Act d(H-s not come within one of the (.'lasses of snlije<'ts assif^ned to the |ii'o\inciid legislatures, the I'ailia- ol' Canada had not, hv its general |M)W«'r 'to make laws for the |Hacc, ord'v. and };ood <;overnment of Cai.ima,' full le<;islati\(' authority to |».iss it. " 'J'hrec cla.sses of sulijeets enu- merated in .see. 92 were referred to, under each of which, it was contended Ity the a|i|M'llanl's coini- sel, the present lef;i,slation fell. These wei'c : — "9. Shop, sidoon, ta\ern, ane- tioncer,and other lu'cnses in order to the raising; of a revenue for provin- fial, local, or nnuiicipal purposes. " i;{. Ptopeity iind ci\il rifj;hts in the proviiuc. " Ki. (icnerally all matters of a merely lin-al or private nature in the provime. *' With ref^ard to the lirst of these classes. No. 9, it is to lie oliservcd that the power of fjrant- iiifi li<'ei- les is not n.ssif^ned to the |n(»\incial Icfjislatiues for the purpose of v:<^- -...iiifi trade, lint 'in order to the raisiuf^ of a rexfuue ior provincial, local, or municipal purposes.' "The A«'t in (ptestion is not a liseal law ; it is not a law for raising revcinic; on the contrary, the ell'eet ok' it may In- to destroy or diminish rcvemie ; imieed it was a main ohjeetion to the Act that in the city of Frederieton it did in |toint ol fa I diminish the souicis of mniiici|>al revenue. It is cvi- dent, therefore, that the matter nf the Act is not within theii the municipality of Frederieton to rais<- money for nnuiicipal piii'|iii.'ii> liy }j;rantiii<; licenses of the iiiitiiiv of tlio.s*' dcserilH'd in No. 9 of sr. 92, and that licenses ^riuitcil to ta\criis for the sale of into.\ieiitiii|; liipnirs Were a profitahh* .suincf nf revenue to the municipality. I: was contended by the ap|Kllam'. counsel, and it was their iimiii arfjuinent on this part of tliecas', that the 'l'cni|M'rance Act inter- fered prejudicially with the tnillii' I'ldiii which this revenue was dr- rived, and thus invaded a sulijiit assifiiied I'.xclusively to the pro- vincial le[>;islatui'e. But, siip- posinji the cllect (if the Acttnln' prejudicial to the revenue deriviil liy the municipality from licciiMs it does not follow that llic |)ii- minion Parliament mi<;ht imt jmss it liy virtue of its fieiicral autlidiilv t' latin}; with ivf^ird to any iirtiili or commodity which was iit'<'ri't'(l ii|Hiii 'n'dfiiflon lu I'ipal |nir|i(i,*i> oi' the IllltUI't' No. J) of ST. {^ri'lllrd to if illtoxlcatiii;; nhli' siiiucf 111' lii'ilialil). 1'. Iu> a|i|K'llunt'.s IS tlicir iimiii rt (if till' fiW', • Aft iiiliT- til the triiflii: \ ciiuo was (Ic- l(l«'(l a sulijirl to till- |i|i)- Hut, su|i- tin- Ai't ti) In' nciim^ iliTivt'il from lii('iiN<, tliat tlic Ui- luiflllt lint |iJl*s lUTal aiitlKiiiir !(• [icacf, (iiilcr, ■lit (if CiiMiiiln matter nf ili' illiiii tlir (111" I in No. i», tliii' no way iiiiii. i-al mitlidiiiv I'l (leal with ilial '•^lllllflll of till' |towcr f;i\in '" ■- ic fjood or ill' not lie cllilili'l were tleeliiol I qM'ilienl I'll !''■ B.X A. ACT, s. 92 (9).— ABUNDANT CAUTION. 133 national safely, or for iwliticnl reason!', to proliibit tlic sale of amis, or the earr/ii;; of arm.s, it cniilil not 1 (iiiteiiiled that a |ir(>- vineial le};islatiire would havo aiitliority, liy virtue of snb-.see. 5) (wliic!' alone is now under dis- cussion), Id pass any .such law, nor, if the appellant's urfjument were to prevail, woidd tlu- Do- minion I'nrlinnient 1m' competent to pass it, since such u law would interfere prejiidieially with the revenue lierixcd from licon.scs granted nnder tin- authority of tlie pi-ovineial leji;islatiire I'or the sal(> or the earryin<; of nrm . 'riieir Lorilships tliiiil thir I lie right eonslnietion oi (lie eiiiietmcnt.'' iloi's not lead to any such incon- venient e(inse(pience. It appears to tiieni that le;;islation of the kind lefernd to, tiion<;h it n i^rl ' iiiterlVrc with the sale or use m nii article ineliKh'd in a lice'ise granted iinder snli-see. 1), m n( ' itself ie-jislation upon or witliin ..le .- jeet of tlial siili-seelion se- (liirntly is not liv reasoi! .icii out of the (general poW(-r oi the Parliament of the Dominion. It is Id Im' oliserved that the e.\ press pidviMoii (if |||(> Act in (piestion that no lieniM's sl..ill avail to leiidrr ieiral any act (huie in \iola- lion (if it, is ((Illy the expixissioii, iiiMiied pidlialily from aliuudant eiiiKion. of what would U' neccs- siiiily implied from the legislation iNell. iissiinii;if; it to he valid, " Ne-;.. their iiordships eannnt think tlinl the 'reinperance Act in (iieslidn properly lielongs \n the clas^ (,f si|l,j,.,.|s ' i»n)|K'rtv and Civil Ki-hts.' ll l„is in it.; l,.fr,d ns,Hct 111 to piil.lic sjifelv. and making it a oriraimil oiTcnco Krssr.i i, e, rm punishiible hy fine or imprisonment Q'*-'^^- to violate these restrictions, cannot jiroperly he deemed n law in reln- tioii to property in the use in wliitdi those words are ii.scd in the i)2nd .section. What I'arlia- ment is dealing with in legislation of this kind is not a matter in relation to property and it.s rights, hut one relating to jmhlic order and safety. 'I'liat is th- claring and enacting eerUiin n.ses of pioperty, and certain acts in relation to property, to Ik; criminiil and wrongful. Laws which make it a criminal oifence for a man wilfully to set (ire to hi own hoiiso on the grmiiid that such an act endangers the piililic safety, or to oM'rwork his horse on the ground of crii(!dy to the animal, though alTectinj; in some sense properly and tlie right of a man to do es he pleases with his own, cannot iiro- perlv lie regarded as lcgislati( ii in relation to property or to civil rights. Nor eoidd a hiw which prohiliit(Hl or restricted the .■(ale or exposure of catthi having ft conta- gious disease Im' so rt'garded. Jiiiws (if this nature, designed for the |)roiiii)lio!i of pnlilie order, .•afety, or morals, and which siih- ject those who eontnncnc them to criminal procedure ni id puiiishinent, liidong to tiie siilijeci of pulilic wrongs rather tlmu to thai of civil rights. They are of a imtiiri' •.vhicli fall within the general autlioritv of I'arliaiuciit to make laws for tlie order and good goverii nient of Canndu, and have direct m 131- n.X.A. ACT, s. !)2 (5)).— CUIM. LICiUOR LAWS. Hi'ssrxi. «'. Thk rcliitioii to irimiiinl law, which is "^'■*'"'' one ol' tlio ('iimni'rat(';iven, that the inattii' of tin Act in ([iicstion does iiol properly Ih-- loll<; to the class of slllijecls ' I'ro- periy and ("ivil Itij^lits' within tin- iiieaiiin.|i|. tare of New Brunswick could lia\i' passed the Act in ipieslion, wliidi eiuhraces in its enactnients all ilir provinces : nor was it denied, with respect to this last contention, that the I'arliiiinent of Canada iiii<;lii have passed i\\\ Act of tlie natiniol that under dis<'Ussion, to takcclTtit at the same time throughout tlir whole Dominion. Their Ijoi'dslii|i> understand the <-outentioii to Ih' that, at U'list in the aliseiiee of ii general '.iiw of the I'arliameiii nf ('aiiiiil:i, the provinces might liau' p:issed a lnvii province, ami lliiil, Us the prohiliitory and penal paih of the Act in question were locniiir into fi.rci' in those counties and cities (»nly in which it was adopttd in the iwiiiner prescriln'd, or, as it wius .siiiii, ' hy l(K'al option,' nw legislation was iii effect, and on it> fiK'c, ii|Miii a matter of a iiierrly local naliire. The judgna lit i>l Allen, C.l., delivered in the .Sii- preine t'ourt of (he province of New Brnnswick in the ea-e nf Uaiker V. The Citvof Krederietcii, IS) S. ('. X. H. (."{ l'"^'>- '^ »l. 1 ■'{!), which was mlverse to tin validity of the Act in ipiestion, ap|H'ai's to have Im-cii founded iijii'i: this view of its eliaetmellts. Tlli learned ( 'liief .Justice sivs:— • Had this Act prohiliili-d the Nile >>l liipior, instead of merely rest liilin;; and legiilating it, I should have had no doiilit alNiiit the power of tin I'arlianienl to pass such an Ad: hill I think an Act, which in elTiri aiitiiori/.es the inhahitaiits of eiicli town or parish t of H merely 1o«'h1 nature, whieli, In the H'linsdf the lOlh suli-ectiini : i H ws. UNA. ACT, s. i/2 00— l^Nn<'()HMITY OF LAWS. 135 Ii'IhIciI iIdh li-scc. Mi (if I iniitti'i'v iif 'Oiiiil nntiiiv ', «'i)lltcli(lnl lif Lt'<;i>.lii- • imld li!i\r *lilii|i» ntidii to Ih' lllS'llCf of II arliaini'iil nf ini^^lit liiiM' a like kind, lice, ami tliui, . [K'nal |iai'i< Were ti> I'diiic i' of a iiU'i'i'ly jiid uf I lie cnx' nf t' Fi'cdt'iictdi, Pu-;s. .^ B.). Imtsc to till ill (iiicstioii, I'liiiiidcd u|ii. Till' siy> : — ' Hail (lie Nilf iii cly rt'stiicliii;; IIMlId llllM' llllil IMiwcr III' till Mich ail Acl : liiicii ill tiriti taiits (if cmli lllutc lilt' Nlll fct for wliiiin. id iiiidcr wliiii li(]>ioi's mil) with niatli'i' ire, wliicli, '» ill >lll)-M'Ctillll of s(H'. !••_' (if the Uritish North A'Mcrica Act, arc within the cxclii- fivc cciiitrol of the local Icfjislaturc' " Tlicir Ijonlsliips cannot, concur ill ilii^ \ii'\v. The declared ohjcct of I'arliainciit in ,)assiiifi; the Act is thai there siioiild he iiniforni l(';;islaliini in all the |iro\iiices ivs|icciiii;r the traffic in intoxicatinj; li(|iiiiis, with a view to |>r()iiiotc ti'iii|ii'i'aiii'e in the Doniinioii. Par- liaiiieiit d(M-s not treat tlie proinotioii (if t('iii|ieraiic(' as desiralile in one |ii'(i\ iiice iiioie than in another, liiit axli'siriilile everywhere thi'(Mi<;lionl till' i)iiiiiiiiioii. 'I'lie Act as soon as it was passed U'ciinie a law for till- \vliiil(> Doiiiiiiion, and lht> ciiai'tiiieiilsof the lirst par!, relating to ihe iiiacliinery for lirin^in;; ilie scniiid pari into force, took elVcei Hill! iiii<;hl Ih' |iiit in motion at onci^ anil everywhere within it. It is true that the prohihitory and penal parts (if the Acts are only to come iiilii I'lirce ill iiiiv county or city ipiiM the adiiption of ii petition to that I'Ifi'cl liy a inn jorily of electors, hill this conilitional application of thcM' parls of the Act (hn-s not coii- viil the Act itself into le;i;islatuiii ill nialidii to ii merely local mailer. The (ilijfcts and scope of the Icfiis- latiiiii are still ;;eiiellil, viz., to pi'iiiiiiite tein])eriiiice liy ineaiis of a miifiiiiii law tliroiii(h(iiit the Do- mini. in. "The manlier of liriiij;iii}i the pmhiliitiiiiis and penalties of the Act iiiiii force, which Pnrliameiit iiiix ihim-iht lit to aihipt, (hies not alter its ^.reiieial and iinifonii cliiiiaiter. Pailiament (hvils with the snlijeei as one (if f;eiieral con- oeiii to the Diiiiiiniiin, upon which unifiiriiiityiif li.jrislalion is dcsirablo, and Ihe I'arliaineiit alone cat. so deal with it. There is no frrouiid or preleiice for sayiiifr that the vil or xiee siinck at" hy the Act in 'piestion is local Of exists only in one proxinee, and that I'ailian'ient, nnder cohiur of f.">iieiiil h'-rislatioi:,, is (lealiiifr with a provii.cial matter only. If is therefore iitmcct ssary to di.sciiss the considdiiiioiiM which a .state of cinnunstjiiiccs of this Kussfxi, i». Tiik kind nii{(ht present. The |tresent 'i""*'"' le<;ishiti(>ii i.s clearly meant to apply a remedy to an evil which is as- sumed to exi-' tliroiiir|ioiit the Dominion, and the local option, as it is ciiHed, nu more localises the siihjeet and seo|)e of the Act than a provision in an Act for the pre- M'litioii of contagions diseases in ciittli! that a pulili(^ otlicer siionld |iroch(ini in what district.s it should come into elTc"', would M»>ke the statute itsrity to enact such rf<;iilations as were t'liat'tctl l>y the Mtiaril ol' ('oiiiinis- sionc!'. , aiitl to iitatt' olTciiccs ami niiiu'x penalties I'or their iniVaelion ; mill, set'ttiitlly, that if the le^jislature » liatl siieh aiitliiM'ity, eoulil it dele- gate it to the Hoard ori'oniinission- ers or any tither aulliority ontsiile their own ie^rislalixc ImmIv ? As in llussejl J'. The (^neeii, ho in this case the jiiilgnient is jjivcn fully anil eoiitains all the facts. The jiuljinieiit was delivered hy liord l''it/.d to keep a hillianl saloon, was summoned heforc the police magistrate of 'I'oronto for iv breach of the resolutions of the Liceiin' Commissioners of Toronto, and v.as convicted on evidence sntlit'ient to sustain the conviction if the magistrate hail authority in law to make it. '• The conviction is as follow.s, namely : — « Convicmon. — Can- aila: Province of Ontaiio, County of York, City of 'I'oronto, to wit : — lie i( remomhertd, that on the lOtli May 1881, at llie city of 'I'tuimto, in the counlv of York, Aivhibaltl G. Iloilge, of the saiil city, is con- vi«'teil iM'I'ore me, (Jeorge Tavlor Denison, Ksquiie, police magislrate in ami for tlu' siiid city of Toronto, for that he, (he sjiid Archibald (i. Jfoilge, bein^ n person who, after the passing of the resolution liel'O- inafter mentioned, received, and who, at tin- time of the committing of the offence hereinafter nien- tiuneil, heltl a li'/ensc umlor the Liquor Licen.* Act, for and iu respect o' «he tavern kimwn a> the St. James Hotel, situate on mrk Street, within the city of 'I'imdiiIo, on the 7th May in the year iifoir. .said, at the said city of Toronto, did unlawfully permit, allow, ami suffer a hillianl taldc to be mhiI, and a game of billiards to be plnynl thereon in the sniil tavern, iliirin;; the time prohibited by tin- Iiii|iiiir License Act for the sah^ of lii|iiiir therein, to wit, after the hour of seven o'chx'k at night or. the siiil 7th May, In-ing .Saturtlay, agiiiiiM the form of the resolution of tlif Lieen.se Conniiissioners for the lity of Toronto for regulating taverns and shops, passeil on the ^'iili April, in the year afore.said, in siitli ca.se nuiile and pro\ ideil. 'Thomas De.xter, of saiti city, License Inspector of the i-ity ii[ Toronto, being tlie com|)lainaiit. 'Ami I ailjuilge the .saitl Aiclii- baltl (}. Hoilge, for his said nlTfiiif, to forfeit ami pay the sum of Iweiily dollars, to be paid :iil applii'il nccoriling to law ; ami also to |p;iy to the said Thomas l)e.\t«'r the sum of two dollars and eighty-tive ciiits for his costs in this behalf; anil if the said .s«'veral sums be not |.,iiii forthwith, th •» I order that llic same 1m' levietl by distress and .silc of giKiils and chattels of the .siiil Archibaltl G. Hoilge ; and in ilermill of sufficient distriss, I ailjiidgf tin- said Archibald (i. HiH'ge to \risoneil in the commtn gaol of iIh' .said city of Toronto and comity (»!' York, at Toronto, in the counlv nl York, and there be kv\)i at Imnl labt'tir for the space of lifteeii tliiys, unless the .said sums, ami the costs mill charges of conxi-ying of tlif .said ArchibalilCl. Hodge to the saitl gaol, shall be sooner paid.' "On the l>7th May 1881, a niK »/i.vi was obtained to removetliat ivm- vietion into the Court of Ciiiirii'> JJeiich for Ontario, in order iluil il sliouid Ih' illegal, on llif grounds, iM, that the sjiid re.sola- tion of the said Licet' ^-Commisioa- ers i> illegal .ml luiauthori/.iil ; 2ntl, th I the »«tid License Coui- I3.N.A. ACT, !*. 02 (0).— NKW OFKKNCKS. 137 missioiicis liml no nuthority to puss ilie ivsoliitioii |)rohil)itin<; tlit- ^iiiiic (if hilliiinlsiis in tlic sniil resolution, nor liiul iIk'v power to antliori/.e tlie imiK)siti()ii of 11 fine, or, in (lefinilt iif |)!ivment tiiereof, iinprisonnieiit for a vidliition of tlu' siiid resoln- lioiij ;{rtl, tin- Liipior Meenw Act, miller wliieli the siiid (Ntnnnissioii- iTs linve Mssunienlly di.scussed Im-- t"H' their Lordships. The Chief ■luMiee, in the course of his jiid^tnient, says; — ' It was stntevioncr> or an\ other authority iiut«idc tlicir own lcji;ishiti\(' ImmIn.' " And, a;iain, he aihls : — ' We re tlnis hroii^jht i- face of a \ cry ■rioMS(|ii..(iiin, nanu'ly, the power I'f the Oiiiiuio heirislatuin' to \est 1 1 the LnciiM' Hoai'd the power of 'ciitin^ new offeiu-es and nnne.\- "in'<""lli''s tW theircommissi'ui.' Aiidconeliiden his jndnniont ilius, I'h rrinj; to tlu' resolutions ;— ' The le;;islature lias not eiinrted any of HrnxJi ». Thh these, hut lias merely aulhori/,ed ^'■'s■'•• each Hoard in its lature alone. In all these ipiestions of ultra virrs the jiowers of our lc}j;islature, we consider it our wisest course not to widen the discussion liy considerations not necessarily inv(d\cd in the decision of tin 1 toiiit in eoiitrover.sy. We, iherelore, enti-r into no ^^em-ral consideratiiui of the powers of the leirislatni'e to legislate on this siiliject ; hilt, assumiiifi this ri;;ht so to do, we feel constrained to llidd that they cannot devolve or didepite these powers to the tli.seretion id' a local Hoai'd cd' Comiiii.ssioiiers, " ' We think the deft>n(hint Iuih the ri<{lit to .say that ho has not otreiided against any law of the province, and that the convictions cannot he supported.' "The case was taken iVoin tlie (Queen's Heiich on aii|N-al to the Court of (\p|»eal for (Ontario, under the Ontario Act, 1 1 Vi<'t. e. 27. (s. 17), and on the ItOtli June 1HH2 that Court reversed the decision id' the Q tl ileei, Heiud I, and aflirmed le conviction '•Two (piesti'.us . nly ap|M'ar to have Ihi'ii di.scii.ssed in the Court id' Ap|H'al, 1st, that ilie Jjc^^isia- ture of Ontario had not authority to eiiai't sii.di regulations as were eiiai 'leil liv the Hoard of Coiiiiu sioiK !.-;, and to create ofTeiices and annex |K'iiltit.< for their iiifr •d, 2nd, that if the h ■ac- 'is- tion iatiiri' hud such iiiithoritv, i' could hot dele<;ate it to the Hoard of Com- missioiieis, or any other authority outside their own lej;i.slntive IhhIv. " This w^-oiul ground was tliat on wliii li the judfimont of the Court of Colleen's Hciii h rested. If % :\ iJiH |{.N.A. ACT, s. !»2 (!»).— KXCISK COMMISSIONKKS. ( I. IpH^qjj IIoiwB V. Thb "'rbp judfjincnts dclivrivil in *^"*'"'" the Coiiit of A|i|N-al l»y S|ini};nt', (/.J., iiikI Itiii'toii, J. A., iii'f able iiikI t'liilMinitc, iiiitl wfi'i' iiiliipti'il Ji_v i'atlfi'Sdii iinti ISIdrrisMiii, .Iil., and their liordsliips have dri'JM'd considt-niblc aid t'roni a caiitid considorntion of tlu' reasons jjiM-n in lM)tli «'ourts. " Tlie iv|i]H'llant now seeks Ut reverse llie decision of the Coinl of A]>|M'al, both on the two };roiinen tailed the resohitionsof the Lieense Connnissiuiiers. "The Aet in (|iiestion is e. IKI of the Hevis«'d Slalntes of Ontario, 1H77, and is eited as'tlie Liquor liieeuse Aet.' " See. '.i of tills Aet |iro\ides for the appointment of a Doard of liieeuse Connnissioners for each eitv, county, union of counties, (»r electoral district as the Lienleiiaiit- (}o\eriior may tliink tit, and sees. 4 and ■'} are as follow : — 'Sec. 1. Licenst' Commissioners may, at any tina- In'fore the lirsi day in each year, |iass a resolution, or resolutions, for rej^ulatin^; and determining tlie matters following, that is to say ; — ' (1.) For ileiinin;; the conditions andtpialilicationsreipiisite to obtain tavern licenses for the retail, within the miMiicipality, of spirit- nous, fermented, or other manufactured li(pu)rs, and also shop licens<'s for the m\v )>y retail, within the nunii<'i|Mdity, of such liipiors in shops or places other titan taverns, inns, nleiiouses, iHt'rlionses, or places of public entei- tiiinmeiit. ' (2.) For limiting the mnnlN'r of iHvern and sboiilicensi's respectixely, and for tic liuinji the res|ieeti\e linics and localities witliin which, anil the persons in whom, such liniitt, or lil'li'fii (lavs iiii|iris<)iiiin'nt witli Imril liilioiir, iiikI with iii- cn'ii^inj; |ifimltifs I'or .•^•(•oiul, lliinl, mill Idiirlli (ilVfiict's; anti st-c. 70 |in)\iili'- lliat wlicrc tlif rcsidiilioM ol' llic liiiciisc ('ominissioiifi's iiii- |K»c> ;i |H'liiilt_v it inav 1h' rrcoxcivd luiil I'lil'iiro'd lii't'orc a iiia<;istratc in tilt' niiiiiiit'i- and to till- extent that hvc-liiws of inunieiiMil corporations iiiav Ih- eiiforeeil iiiider the antlin- riiy (if the Miiniei|ial Act. " Licfiise ('oimnissioiiers were iliily ii|p|Hiintcd under this statutj', wliit, on 2')th Ajiril IHHl, in pin- Miiinee of its prox isions, made the rocpiiilioii Ol' re<{iilatioii now qiies- tiulinl ill reliitioii to licensed taxel'lis or shops ill the cily of Toronti), which coiiliiins, inter alia, the fol- lowiii}; piii'ii^^riiphs, \ iz. : — ' N'oi' shnll any such licen.sed |MiMiii, directly or indirectly as iifoi'csiid, |M'i'iiiit, allow, or siilVer liny liowliiij; alley, liilliard or ltaf,',a- Icllc trthle to Ih' iisciI, or any panics Ol niiiiisciiiciits of the like deserip- litiii 111 In' ;iliiycil in sni'li tavern or sliiip, 1)1- ill or upon nny premises ciiiiiii'i'ti'il therewith, diirini^ the time proliiliii mI hy the liiipior l/iceiis' Act, or liy this resohition, lor the sile of liipior therein. 'Any jici'son or |)er.so!is {^nilty ol .my iiitriietioii of nny of the pro- \isioii- of iliis resolution shall, upon coliviclioii tllil'iof U't'ore the police lii.i^i>ll'iite of the city of Toronto, forfeit .mil jmy n peiinlly of twenty doUiiis Mild co>|>; iuid ill defiiuil t>f iiiiMiiiiit tlii'ivof furtliwilii, the Niiil police iiin^ivtriiic sliall issue his wiuninl to levy the slid penalty hy iliMrcss iinil sde of the floods and ehiittelN of the offemler; and in defiiiilt of siitllcient distress ill that iH'liiilf, the Miid police inii«,Ms- triite >|iidl liy wari'imt coiiunit the (lUi iider to the coimiK.n jjaol of tiie city of 'roroiito, with or without hard laltonr, for the period of iit'teen days, unless the siid iHiialty and <'osts, and nil co.sts of distress and fonmiiiineiit, lie sooner paid.' "I'hc a|i|H'lliiiit was the hoUler of a I'ctail license for his t4ivern, and iiad si}{ned an undertaking, a.s follows : — ' We, the undersigned iiohlers of licens«>s for tavt-rns uiid sh()|is in the city of Toronto, respectively acknowledge that we liiuo .severally and respect ivt'ly received n copy of the rt'soliition of the License ('oin- missioiiers of the city of 'I'oronto to regulate taverns an 25th day of April last, hercniito annexed, upon the sevei'iil (hites set op|)osite to onr respective signatures hei'eiinder written, and we severally and re- spectively proiiii.se, iindei'take, and agree to oliserve and perform the conditions and provisions of such resolution. — A. (1. liouciK. '2nd May, Tavern.' " He was also the hohh'r of a bil- liard license for the city of Toronto to keep a billiard .siloon with one tabh; for the year IHHl, and, ninler it, had a billiard table in his tavern. " He did permit this billiard table to be ii.scd as such within the period prohibited by the resolution of the Licen.se C'oniinissioner.s, and it was for that infraction of theii' rules he was prosecuted and con- victed. "The lu'eccding sfateineiitof the I'lH'ts is suHicient to enable their Lordships to determine the ques- tion raised on the appeal. "Mr. Kcrr,(^('.,andMr. Jenne, in their full and very able argn- nii'iit I'or the ap|H'llant, informed their Lordships that the lirst and principal i|Uestioii in the caii.so was whether ' The Liqii )r Licc-nse Act of 1877,' in its 1th and otli sections, was II lira vira of the Ontario Legislature, and properly said that it was a matter of iin[)orfunee as iH'twcen the Dominion Parlia- ment and the legishiture of the [)roviiice. " Their Lordship.s do not think it necessary in the jircsent case to lay down any general rule or rules for the construction of the Briti.sh North America Act. They are llomir, V. Tmb QUBB.N. ' I ■ S •''■ : " I ■ I M til 140 B.N.A. ACT, s. 02 (9).— Ul'SSELL KXl'LAINEl). HnDOB V, Tui QUKKN. iinproN8(>(l with tlw JuHtifP of iiii ohsorviition liy Iliifjiiitv, C'.J.,' thai ill all flK's«> ({lU'stioiis of ultra virm it is tlio wisest course not to widen tlie (iisciission bveoiisiilerntions not iieeessnrily involveil in tlie division of the point in controversy.' Tiiey do not forget tliat in a previous decision on this siune statute (I'arsons v. The Citizens' Ct)ni- |mnv, Nov. 1»(J, \HHl, 7 A pp. Cas'. 9(5; 51 L. J. P. C, 11; l') L. T. 721 [src sul.-se.'. i:{./w7]), tlieir liordships recoiuuiended that, 'in |M'i'i'oriuin<; the diilieuh (hity of (h'terniiniu}; sueli tpieslions, it will U' a wis*' cours*' for those on whom it is tlirown to deeiih- ciirh ease ■wliieh ai-ises as Ih'sI tiiey can, with- out entering more largely upon the interpretation of tlie statute tlian is necessary for tlie decision of the ]tarticular ipiestion in hand.' "Tile appellants contended that the Ii(>gislature of Ontario had no I«>wer to pass anv Act to regulate the liipior traflic; that the whole power to jMiss such an Act was ciuiferred on the Dominion I'arlia- nieiit, and c(>ii.sc(pienlly taken from the pru\iiicial legislature, l>y sec. 91 of the Urilish North America Act, IMti?; ami that it did not come within any of the ••la.s.ses of sulijecis assigned ex- clusively to the provincial legisla- tures l>y sec. U'2. The cla.ss in see. 91 which the hitpior Tjicen.se Act, 1H77, was .Slid to infringe was No. 2, 'The Ucgulalion of Ti'ade nnd Commen'c,' anil it was urged that the decision of tiiis Hoard ill Kii.s.sell v. Uegina [x.-r previous ca.se] was conchisi\(? that the whole suhject of tll(> liiplor tratlic was given to the Doniinion 1'arliiuiient,and conseipieiitly taken itway from the proxincial Icgisla- luii". It ii|)peais to their Lord- sllips, liowe\er, that the decision of this trihiinal in that ca.se has not the effect supposed, an gciici'iil powi'rs to make law.v for the peace, (M'der, and good go\ei'ii. mciit of tiie Dominion, to pass III,. Caiiada Temperance Act, 1H7H, which was inlcnded to U'lipplii'iiiiji' |o the several provinces of the Do- million or to such parts of the jini. viiices as hIkmiIiI locally adopt it. It wasnotdoiilitcdtliattlieDoiiiiiiiiin I'arliainent had such nut hority un- der .sec. 91, unless the sulijcet fell within some one or more of ilii> clas.ses of siilijects which liy .see. 02 were assigned exclusively to tin' legislatures of the provinces. *'lt was in that ca.s<> conti'iidcil ihal the suhject of the 'I'eniperiiiKT ,\ct properly Inloliged to No. l.'tnf sec. i)2, ' I'roperty and Civil KigliN in the I'rov iiici-,' which it was siiiil iH'longed eXelusively to the pro- \iiicial h'gislatiire, and it wiis on what .seems to lie a misapplji'iitiiin of sonic of the rea.sons of this iinnid in oh.serving on that conti'iitinn that tile ap|H-lliint's counsel pilii- cipally relied. These oliservatidiis should 1m' interpreted nccordiii;; U> the suhject -matter to which tiny were intended to apply. "Their Lordships, in thai cii'*, after comparing the Teiiipcnimv Act with laws relating to the sale of jMiisons, observe that, — 'Laws of this nature, desigmd for the |)romotioii of ])uhlic (inlcr, safety, or morals, and which sub- jeet those who contravene tlirin In criniinal proecdiiri'and punishiiipnt, iH'long to the suhject of imliiic wrongs rathe;' tliim to that of civil rights. They are of a nature wliicli fall within the general authority uf I'arlianicnt to make laws Inr tin order and gcHxl governiiieiit df (^iiiada.' "And again : — 'What I'arliainent is dcalin; with in legislation of this kind i> not a nialler in relation to pi-ii|ii'H.^ and its rights, hut one relalinj; t" piihlio order and safety. 'Jhnt i< the primary matter dcjill with, mid IKl). tluTO Wlis, l-llt til tllc iiiKlcr ii> If lii\v> for mmI p)\('ni. I to |PI1>'« till' Aft, 1H7S. H'M|l|llit'llll|l' I of till- l)l|. I of tllC |llll- ly ailo|ii it. lu-l)oiiiiniiiii iitliority nil- sulijfct fell iioiH' of the h Ity wc.ll'j vcly to till' iiicfs. ii> colitiiiili'il 'r»'in|n'riiii(T to No. lit of Civil lli;;lil. Ii it WHS stiiil to tilt' \m- \ it wiis (in isti|i|ilii'iiliiiii i)f tliis Itiiiuii I (Minti'iiliiiii I'oiiiiscl |iriii- ol)sri'viiliiin> lU'conliiij; to wliifh they y. in timt iiw, 'rt'iiiiMiiiiiii' i ion to pniiMVlv )nf rf latin}; tn ifety. 'I'lint i^ (Iwilt with, mill B.N.A. ACT, s. 02 (9).— PUBLIC SAFETY. 141 tlii>u;;h iiK'iiifiitally tlit> fit^t* ntM' of iliiii;{-« in wliifli iiirn may lia\f |)i(i|H"rly is intfrfcrfd witli, tiiat iiicidiiiliil iiiti'ilVrfni'f dofs not alltr till' cliinaftfi- of tin- law.* "Ami tlifir Iioi'il.slii|>s' I'fuson.s (III that |>iirt of liu> casf ai'c thus (•(inrlildrd : — ''I'lic Hue natuii' ami flnifactfr (if the li';;islation in the iiaiticular instiinn' untlfi' iliscnssion must alwavs In' (htfiiniiuMl, in oi-dci' to asci'itniii the idass of .sniijrfl to which it ivally licloii<;s. In tin- lucsciil case it a|i|M'ins to thfir hdi'dsliips, for the I'ca.sons aln-aily >^\\vi\, that tlif lualtff of the Aft iiHiiicsliiiii (ItM'S not |ii'o|K'rly Udon^ t(i the class of siilijcfts " l*id|H'ity and Civil l{i<;lits" within the niran- in;; nf siili-scclion 1,'{.' "It ainicais to tlicif Loi(lshi|is that Uiisx'U r. Tin' (^Uff u [xrc \»v- \ inns case], wlicii pro|K'rly nnilff- stddil, is not an authority in sup- pdit df the apiHdlunt's contfution, and tlicii' lidi'dsliips do not intend Id VHiy (If (h'|iart from the reasons expressed fdi' their judf^ment in that case. The prineiplf which that case and the ea.sf of The Citizens' Insurance Company illus- trate is, that sidijeets whiidi in om- as|iect aiul for one purjiose fall •within s«r. J»2, iiaiy in another asiiect and for lumther pnrpo.sc fall within see. ill. "Their Lordshiiis proeeed now to cdusiih'r the sulijeet-nmtter ami leHi.dalive (diariicter of sees. 4 and o •if 'The ]/uiu(ir License Aft of 1H77, c. 181, llexised Statutes of Ontiirid.' That Act is so far con - lined in its (ipeiatidii to muniei- iHililiesia the province of Ontario, and is entirely hical in its (diaractcr and operation. It authori/.cs thi- appointment of License Commis- su.ners toa(t in eaidi muincipalit v, ami einiKiwers them to pass, umhT the name of resolutions, what wv know as hyeduws.dr rides to delino the conditions and (pndirieations retpusite for (ditainiiij; tavern or shop lie. ii.ses for sde liv retail of Spirituous Ihpn.rs within 'th,. ,„uni- ciiNilitv; for linntin;; tho nnmlKT Hownit r. Taie of lif<'n.s4'S ; for ileidariiifj that a 'l*""""' limited mnnUr d taverns and shops, for detiinn<; the duties and powers of license ins|M'etors, and to inipo.se penalties for infrac- tion of their resolutions. These M'em to Ih- all matters of a nu-rcly local nature in the {irovince, ami to In- sinuhu' to, thou;!h mit identi<'al in all r('s|M'fts with, the powers then lNdona.ss4-d hy the KkiiI parliaineiits. "'i'heir liordships consider that the iMiwers intended to In- conferrt'd liy the Act in (piestion, when pro- perly iimlcrst(MMJ, are to make re;;u- lations in the nature of |N)lice or iniinici|ial re<{nlations of a merely local character for tin- ;;(hnI •;o\i-rii- meiit of taveriKs, &c., lic»'n.s*-d for the stile of liquors hy retail, and such as are calcidat«-d to i)ri-.s»'rve, in the municipality, |N>a(-e and puhlic decency, and repress drunk- enness and disorderly and riotous conduct. As such they cannot he said to interf(-re with tin- j^eneral r(-};iiliition of trade ami comim-rce wliicli lieloiiirs to the Dondnion Parliament, and do not contlict with provisions of the Canada Tcmpcriince Act, which does not ii|>pear to have as yet liuen locnily adopted. "The sulije(-ts of le;{ishition in the Ontario Act of 1M77, se(-s, 4 and >'), sci-m to come within the heads XoH. S, 1 "), and 1(5 of sec. 1)2 of Mritish North America Statute, 18(57. " '''lu-ir Lordships are, therefore, of opinion that, in relation to s(-cs. I and 5 of the Act in in no .sense (h-legaies of or acting under any manchite from the Im- perial Parliament. When the British North America Act enacted that thei'c should be a legislature for Ont'M'io, and that its legislative assembly should have I'xclusive authority to make laws for the province' and for provincial pur- poses in relation to the matters enumerated in sec. 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but atithority as plenary and as ample within the limits prescribed by sec. 92 as the Imperial Parlia- ment in the plenitude of its power possessed and could bestow. Within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial Parliament, or the Parlia- ment of the Dominion, would have had under like circumstances to confide to a municipal institution or body of its own creation autho- rity to make bye-laws or resolutions as to subjects specified in the enact- uieut, and with the object of carry- ing the enactment into operation and effect. " It is obvious that such an authority is ancillary to legislation, and without it an attempt to pro- vide for varying details and ma- chinery to carry them out might become opj)ressive, or absolutely fail. The very full and very elaborate judgment of the Court of Appeal contains abundance of pre- cedents for this legislation, entrust- ing a limited discretionary autho- rity to others, and has many illus- trations of its necessity and con- venience. It was argued at the bar ihat a legislature committin"; important regulations to agents or delegates effaces itself. That is not so. It retains its powers in- tact, and can, whenever it jileases, destroy the agency it has created and set up another, or take the matter directly into its own hands. How far it shall seek the aid of sul)ordinate ager.eies, and how long it shall continue them, are matters for each legislature, and not for courts of law, to decide. "Their Lordships do not think it necessu'y to piirsue this sub- ject further, save to add that, if bye-laws or resolutions are war- ranted, [)Ower to enforce them seems necessary and equally law- ful. Their Lordships have now dis- posed of the real questions in the cau.se. " Many other objections were raised on the j)art of the a|)i)ellant as to the mode in which the License Commissioners exercised the autho- rity conferred on them, some of which do not apjiear to have been raised in the court below, and others were disposed of in the course of the argument, their Lord- ships being clearly of ojtinion that the resolutions were merely in the nature of munici|>al or i)olice regu- lations in relation to licen.sed houses, and interfering with lilx^rty of action to the extent only that was necessary to prevent disorder and the abuses of licpuir licenses. Uiit it was contended that the pro- B.N.A. ACT, s. 92 (9).— Ml^NICIPAL COUNCILS. 143 \ inciiil lef^islatnre had no |)ower to impose imin'isonmoiit orhfiril liiboiir for broac'li of iiowly-crcMtfd rules or Inn-laws, and could conftsr no mitliority to do so. The argument was i)i'inci|)ally directed a<;ainst hard labour. It is not unworthy of observation that this [)oint, as to the power to impose hard labour, was not raised on the rule nisi for the certiorari, nor is it to be found amongst th(^ reasons against the apijcal to the A])i)ellate Co>irt in ( )ntario. "It seeins to have been either overlooked or advisedly omitted. " If, as their Lordships have de- cided, the subjects of legislation come within the powers of the pro- vincial legislature, then No. 1") of sec. !)2 of the Eritish Noith America Act, which jn-ovides for 'the imposition of ])iuiishment by tine, penalty, or imprisonment, for enforcing any law of the jn'ovince made in relation to any matter coming within any of the classes of subjt^cts enumerated in this section,' is applicable to the case before us, and is not in conflict with No. 27 of .sec. 91 ; under these very general terms, ' the im- position of puni.'ihment by im|)rison- iiient for enforcing any hiw,' it seems to their Lordships that there is imported an authority to add to the confinement or restraint in ])nson that which is generally in- cident to it, — ' hard labour ' ; in other word.s, that * imju'lsoinnent ' tlieri! means restraint oy confine- ment in a prison, with or without its usual accompaniment, 'hard illllOlU'.' " The provincial legislatin'e hav- ing thus the authority to impose imprisonment, with or without hard lahoiu', had also power to delegate siniiliu' authority to the nuuiicipal body which it "created, culled the License Commissioners. *' It is siu well ftut.iSN. founded. " In the first place, by sec. 5 of the Liquor License A<'t, the Com- missioners may ini])ose penalties. Whether the wonl ' penalty ' is well adapted to include imprison- ment may l)e questioned, but in this Act it is so used, for sec. 52 inipo.ses on offend:'rs against the provisions of sec. 43 a [wnalty of 20 dollars or fifteen days' imprison- ment, and for u fourth offence a penalty of imprisonment with hard labour only. ' Penalty ' here seems to be used in its wider .sen.se as e([uivalent to punishment. It is observable that in sec. 59, where recovery of penalties is dealt with, tlu! Act speaks of ' penalties in money.' But, supjrasing that the ' penalty ' is to 1h' confined to pecuniary penalties, those penalties may, by .sec. 70, Ix? recovered and enforced in the manner, and to the extent, that bye-laws of municii)al councils may be enforced under the authority of the Mnnici[)al Act. The word ' recover ' is an apt word for pecuniary remeilies, and the word 'enforce' for remedies against the person. " Turning to the Municipal Act, we find that, by sec. 454, muni- cipal councils may puss bye-laws for inficting reu.sonable fines and lienalties for the breach of any bye- laws, and for inflicting reasonable punishment by imprisonment, with or without hard labour, for the breach of any bye-laws in case the fine cannot Ik- recovereani( Wliic oft I, it as '"I B.X.A. ACT, s. 92 (9) —DOM. * PKOV. AS OCCT^PIEH. 1 I" is first A\\cv it clauses it (Iocs . to \\w the px- ivo-.iin'c. sec. '.V2, . 9\ mill I sw, 91, , tlK'll -^11 1(1 lii\iits uei'ii {see V of tllL' ct, 1H7H. net iiutlin- le iigi-lii- climiuisli oiU'V ln'iii;; liicll down i-t'ceivt'il, is >n(li»S' '' '^ srs t>t' '^'^' Siiiil>i>se i pvoliiltitetl. inrer, !•> i>"y ii" eiisf from ■mm'ut, the oovprnment ~Everyl)0(ly iiiiU piiy »* i-lp our V(»vf- Act nii^lfr consideration in llnsscirs Hrises from the macliinery of the Icfisliition iisdistin;j;nislie(l from the jjiu'j'.isc Mild oliject of the Icf^isin- tion. Tlic iiiachinerv of tliis l('j)osp tlipy ileiil with it iiR'on- sistt'iitly ?] Tlieii tin- Dominion MarliaUH'iit iiroviiiis. [ Loril FTnls- liiiiT, L.C ; Siipjiosc pi'oviiiciiil rcjjnliitioiis tiliowod only twchc piililic lioiist'S in a partivnlnr dis- trict, mid tiie wordiiiw ol' tho Do- minion Act allowed less or twice iis iiiiiny ?] Hnssell /•. The Queen decides that the Dominion must prevail, lieeause in Ontario the local legislatnre had said any |)er- son nj) to a certain iiiiniV)er may obtain licenses ; then came the Dominion statute, which allowed nobody, v.hether licensed or not, to carry on the trafWc, and that was held as ; all the |iro\ inees, and we will pass a law which will in- clude (^nehee as well as Ontario. J That is our content ion. Now in The Citizens' Insuraiu.'c (.'o. i\ Parsons [.IPC suli-.sec. 13, .see. !)2], the (|ues- tion was the validity of a law passed In' the province of Ontario (icalinj; with policies of insurance cntcivd into or in force in the province of Ontario for insuring- property situated therein against tire, and it prescribed certain con- ditions which were to form part of such contracts, and the (pie.stion was whethei' it was an Act the local legislature had power to pass; or whether it was an Act ' regu- iating trade and eonnnerec ' which they had no powei' to pa.ss. Se- coiidly, was it inconsistent with an Act of the Donnnion Parliament which retpiired all insp.rance com- (lanies, whether incoi[torated hy Doniinit)n or provincial authority, to ohtain a license to Iw granted only u[)on eomi)liaat'e with the Act ? It was a case in which the Dominion had legislated with re- jiiwd to all insurance companies thioiighout the Dominion. It was argued the provincial Act was iiltni rircs hecause it was a matter ivlating to 'trade and commerce.' it was held it was not. Thai the creation of certain im|>lied con- ditions in that particular province, .iiiil relating to the property in that province, was a matter dealing with civil rights in that province, and was not a matter overborne by the lirovisions as to the regulation of "trade and ooinmeree.' " ITnfortiinately, in the judgmcid there, in dealing with the words * regulation of trade and commerce,' it was .said : ' It mai/ lie they woidd include general regulations of trade affecting the whole Do- minion.' So what is of very con- siderable importance in this ca.se was left undecided. Tlie question thcrv was, whether the whole matter being within sec. 92, it was over- ridden by sec. 91 In that case; C'ushing v. Du|)uy was referred to. " Xow, considering the two sec- tions, 91 and 92, and, first, whether this is legislation e.\clnsiv(dy I'on- fei'rcd on the |irovincial legislatine. Its aim and object, obviously, is the promotion of temperance and the checking of the evils of intem- perance throtighout the Donnnion. It se(dcs to accom|)li.sh that object in tho.se districts which were not pre- pared absolutely to ])rohibit the sale of intoxicating licpiors. In- limiting the extent of their .sjde, l)y limiting the nund)erof places where they could be .sold, and also 1)V en- abling smaller districts than tho.se whicii weie dealt with by the Act Of' 1H7S to effect that prohibition within their area which, under the Act of 187H. larger di.stricts could effect. Such an Act a]iplying to the Donnnion thi'oughout, and having such an object, is not with- in any of the sub-.sectious of .sec. 92. If it is to be found in any of them, it is overridden by the pro- visions of sec. 91 It has lieen decided that sec. 92 does not ex- clusively comnnt to the provincial legi.shitnres all the regidations and limitations of the liquoi- frailic in their provinces. Kus.sell r The Queen. I .shall contend there is no distinction between an Act having the same ultimate object which enables or com|>els restric- tion and limitation; that in each case the purpose and object is the promotion of temperance, and the consequent re[)ressiou within the Dominion of the evils which in- temperance causes ; that there is no distinction for that purpose hc- Odvkumik- •iKNEUAL JJoMINIOS V. The Four I'hovinces. p \ (tOVERNOB- Oenerai I'. The I'orii Ptiovincer. f : w r i I n^ ; . 150 B.N.A. ACT, s. 92 (0).— I'UKVIOLS POVVKRS. twppii prohibition mid liinitiilinn wlifii yoii lire considcriiijf sec. 02. " It WHS rciicil on in the i-oiirt tic- low tlint snli-scf. H, sec. i)2, a;i|ili- •'fl. But if ' iniMiiciiial iiistif iitioiis ' iMiJililcs till' csliililislnnciit liy flic local Ic^rislatiircor iiiunicijial liodics witli some powers, it docs not mean von can jfivc tliciii every power wliieli lia\e ever liecii exer- cised Itv niniiicipal liodics in Can- ada. 'I'iic ai'.Linniciit in the court lielow was that yr the 9th sub-sec, but under the 8th, ISlli, 16th — 15 being merely the imposi- tion of penalties for carrying out any of the others. Then it is eerliiiii 10, 11, 12 would not be material. Now I apprehend the .sa'e of intoxi- cating liquors and its restrietinn anr siil>-st'c. l.'{. To prohibit H iniiii t'ldiii sfliiiij; II iiiiilter that does. "Those who iiii|ieacli this Act ol' the Douiiiiion must not only show lliiil it comes within sec. !I12, lint tliiit it is not within sec. 91. [Lord iriil-liury, li.(". : Take tile case ol' ' Miiiriii^c anil Divorce,' siili-sec. lit), Ml', '.tl, and the ' Soiemnj/ation III' Miiniage,' siih-scc, 12, sec. !)2. | ■ Minii;ij;e and Divorce' in .sec. ()1 wiiiild clearly override the ■ Soluiiniizulion of Marriage,' sec. O'J, except so far as related to tiie Hilciiiiii/.ation of niarriaj;c. if tliere i-^ iiiiy inconsistency hetween .see. 02 iiial sec. i)l, the latli'r section iiveridile t\w former, tor it says : ' It i-; liiii'hy declared tliat notwith- >liiiuliM"- aiivthiiiir in this Act ' — iliiit n\\\>\ inehiile the words in sec. I'2 — Mile exclusive lej^islativc ati- llmrily iif the J'arlianicnt of Canada cxleiiils to all matters comin;.!; with- in the class of siihjects next Iierein- iiflii' eiiiuiierated. Then we place ivliiiiici' 1,11 suli-sec, 2, .see. 91. Yon laws for the jieacc, jrood govrrnnient of limy make iiriler. and Caiiiiilii 'in leyiilatioii of tradi' mill loiiiiuoice,' and this is a matter vvliieli comes distinctly within that siih-*c. 2 of sec. 91. And it is only in that way that you can mulcr^itaiid the 'Supreme Court holding that those provisions of this Act which have relation to wholi'sil,. licen.ses were within the coiii|icteiicy of the Dominion Par- 'i'liiii'Mt, althonjih it relates to all tlie pi-oviiices and contains Mipiiliitioiis takiiijr ,.£ft.i.t in ,ill. 'I'he Act is held valid as to whole- Nile licenses and not with regard to tlie retail trade, hut to say the legisliitive power of the Dominion larliaiiienl extends to wholesale iind not to retail is a distinction which does not Hnd any warrant in sec. 91, and it would Ix^ imprac- Ohvehvob- ticalilc in its working. Tliev have Q^•''E"*'' ill 1 .1 i 1- ■ 1 Dominion held also that licensing Ncssels j, .^-^^^ Yovu comes also within the power of the PunviNcRS. Dominion Parliament, prolmhly putting it under the lOtli siih-sec, • Xuvigiition and Shipping.' Cer- tainly, to .say that a liipior law passed with such an oliject as pro- moting temperance can he main- tained in respect of a vessel, although that vessel's trading is en- tirely provincial, and entii-ely with- in one province; and that yon may not restrict the sale of liipior in hnildiiigs in the province, appears a distinction veiy difticnlt to follow. It wa.s not necessary for the decision of this case to contend that the regulation of trade or commerce had so wide an effect that every regulation of trade and commerce, however local and limited in its operation and scope, would come within these words, hut that it would he eiifiiigh to show a power in thi> Dominion I^irliamenl to regulate any and eviu'y trade where the object and |iui'pose of that regulation was the peace, order, and <;'ood government of the Do- minion at large. Now that is the power which is in the Dominion l^irlianient, and it would put all the decisions on a sound and intelligible basis. Whatever limitation yon put upon the regulation of trade anil cominerce, you ought not to limit it so as to exclude from the power of the Dominion Parliament any law relating to trader or commerce which it considers necessary for the ' peace, order, and good govern- ment' of the country. Suppose a local legislature made a law for a railway where it passed through a town, such limitation being limited to the safety of the town or a part of it, ami yet the general legislation as to the railway would be left throughout the whole Dominion to the Dominion Parliament. One might put cases in which a matter might in one respect be a merely local matter, and which in another aspect might Ix' a matter of general H ', I It Hrf; r? OoVKIINOII- Oknkkai. Dominion I'. 'I'lIK I'oDIl Provinces. ir)2 UNA. ACT, s. 02 (!)).— 1)1 KKcr TAXATION. Iiiilicy mill of ilil|)iil'tlllli'(' to tlir wholt! ('(iiiiitry. Tlicri- iiiiiy Itc a nniiiii'ijial rt'^^iilalioii llial noliody shall sell anus witliniil a lirciiso froiii till' lural aiilliDi'ily. Sii|i|insi' tlir Doiiiiiiiiiii (ioM'i'iiiiiiMil liiiiiks it so iiiii)iii'tarit I'm' tlir salVty ol' tlu' coiiiiti'v to limit till' list' mill pos- si'ssioii of lire arms that it says iioliDily shall si-ll arms without a liri'lisi' iiliiirl' ihr liallil of till' (iovi'iiioi'-(Ji'iirial, llii'ii ir that ivijii- lalioii of IIk; trailc in •;iiiis was a iv<;iilatioii I'oi' the ' pcari', onli'i', anil oiHiil ri'o;ulatcil niinntcly in a sort of local way a ri'tail ti'ailc] When a rrfrri'nri' is made to llii' prarr, orili'i', anil good goNJ'i'ninrnt of Canada, as in IJns.si'll c. Till' (2"*'''"' ^vhat is pointi'd at is that tlir si'lii'inc, in- ti'iition, and piivposi- of thr powri's foniniitted to tlii' Doniinion GoviTii- nit'iit were the gt'iu'i'al good goviTii- inent, so to .speak, of the whole Dominion, except so far as it had been exclusively coniniitted lO the ))ro\inees. As to he payment of the offieials, tho.se that are paid are paid out of the licen.sc fund, if enough, and the residue of the fund is paid hack to the various provinces. It is not direct taxation under sub- see. 2, sec, i)2, but e\eii if it were direct taxation it is for Dominion purposes, and the Doniinion Par- liament under sub-sec. 3, sec. 91, can raise money by 'any mode or system of taxation.' If it is com- Jietent to enforce thi.s Act, then it is competent to raise the necessary money." Sir Horace Da\ey, Q.C, for LieutcMant-Govcrnors of Ontario, Quebec, Nova Scotia, and New Brunswick : The Act of 1883 i.s wholly idtra vires. All the en- umerated matters in see. 91 are .suhject to the words ' In relation to all matters not coming within the classes of .subjects by this Act assigned exclusively to the legis- latures of the proxinces.' Tin whole section is goM'rned b\ tliosi' words, and the enunierati'd 'iitirli- in sec. 91 are only an iliiistraticni inserted foi' gi'catcr cerlaintv 'I'herefori! if the Dominion I'iu- liamcnt make regulations for traili' and coiiimeree, they must umk,. such regulations as will not iiifriii;;c n|)oii the exclusive power of legis- lation over the matters in sec. \)'2. Now how an- the enumerated siili. jeets in sec. 91 introduced? ' F.n greater certainty,' Scv. Ihil lln' most inipoitant words are tlioM. above given, ' In all matters,' .^c. [Sir Montague Smith: There i^ another proviso which is to be icnil with it.] Yes, the la.st 'Muds ol the section (91, sub-.sec. 29)—' Ami any matter coming within anv of the classes of subjects eiiunieiiiti'il ill this section shall not be deeiiiod to come within the class of matti'i> of a local or private nature coiii- pri.sed in the eniinieration of tlic clas.ses of subjects by this Art assigned exclusively to the legis- latures of the provinces.' That means the provinces cannot legis- late on any of the enumeiiitril matters, on the \m fence that tlicy are local. It is also true that tln' Dominion Parliament cannot legis- lati! on matters which are iiielinlcil in sec. 92, on the snggestiuii tlwi they legislate for the whole (it Canada. If the matter is i'.v- chisively assigned to the pro\ iariiil legislatures by sec. 92, then tlir Dominion Parliament has no jiiii« diction to legislate on tho.seniattiT?. Now the subjects dealt with in iIm' Dominion Licensing Act, 1HH3, liiivi' been decided by thi.s Board to full within sec. 92 : Hodge c. Tin' (^ueen. That decision was tlml the Ontario Act — a licensing .Ail through the means of local lici'ib- ing hoards invested with the powtr of passing regulations and issuing licenses for the regulation of tin' liquor traflBc — falls within siili sees. 8 and 16, sec. 92. But tlu' Dominion Act, 1883, is ideiiliciilin B.NA. ACT, s. 02 (!)).— rUOV. Sc RITSSRLL'S CASE. 153 iiiiicliiiici'y, 1111(1 tlic iiicaiis l>y wliii'li thi' ir^iilMlioiis III')' iiilciiilcil to Ix' ciiM'icil niit,\vitli the Ontiifii) Act ; ill t'lll't, till' llnillstiiiic(' iM'iii}^ tiiiit tlic /\cl (>r \Hr<',i lipplics In tlic wllolc of Cii mil 111, mill I lie Oiitiirio Act, which WHS ill (iiiestioii in lloiif^e c. 'I'lie Qiici'li, il|>|tlies ol' eoiii'se only to the province ol Onlai'io. I'liere- t'oip the Dominion Act is ulim riri's, liecaiisf! it is a matter whicli "(iiiii's within the class of Hiilijects iiv-ii};!!!'!! liy see. !)'J, to the ler II merely local eharaeler, yon (III Mill make it Dominion matter liv piissinj; a fi'eneral Act for the wlidle province on those "^roniids. Tlii'ii we do not (piarrel with Kiissell r. The Queen. Tile de- cisiiiii there was that the prohibition (if the li(|ii(ir traffic throiiifhoiit ; he Ddiiiiiiioii was a inatter whicli \\,i.s not exclusively assitrneil to liie pro- viiiciiil li' "I iiipior or of poisons thronghont Dominion ''. Tub I'ouK Provincbs. the Dominion was not one of ihe <>oveiin(ir. matters exclusively as.sigred to the '•►-""■'. 11 a 1. provincial legislaliires by sec. il2. There was no ipiestion in that case uboiit tli(^ regulation of the licpior trallic through the niachinery or by means of local licensing bodies, which in l!o(lg(( r. The (^iieen was decided to c(aiie within mnnicipal instiliitions. And the objttciion to this Act of iHH'.i is that niKhu' the guise of passing a general Act for the whole of Ciiuada it attempts to legislate by the creation of local or mnnicipal licensing bodies, giving them restricted local jurisdiction. All the Temperance Act of IH7H did was to prohibit the sale of li(|uor except for sacraineiital and medical purposes, and it provided ma- I'hincry for carrying that into effect. Hut that is a totally different class and charactor of legislation. In all the cases this question is asked, Is the character of the legislation local oi' not? Does it purport oi' does it affect to create luniiicipal institutions? Is not the princi[)le of sec. 92 this — that as regards all local matters, police, decency, and order — as re- gards those matters, each province is left to legislate for itself. Giv- ing the full effect to every word in Russell ('. The Queen, there is nothing in that case inconsistent with what was held in Hodge v. The (.ineeii, that is, that the regu- lation of the licpior trallic by means of local licensing bodies, empowered to pass I'egulations, come within the class of subjects referred to as niiinicipal institutions. This legis- lation is no novelty in Canada. Hefore the L^nion a large number of Acts were in force in all tlu; jirovinces for this very purpose of regulating the liquor traffic through the means of the different muni- cipal bodies in the different pro- vinces. There was a system of granting licenses at the time of passing the B. N. A. Act, and there are various statutes passed by different provinces since confede ration. I|f|i liii ilililj h\ 1 ; (rovenNOR- (tKNBRAT, Dominion V. Thb Focr Provinces. 15i B N.A. ACT, s. 92 (0).— HODGK EXAMINFI). ' Mimicipiil Institutions' is iiol confined to the creation of niunici- [Militics, but it extends to the delin- in<^ the rights, powei ^^ duties, and privileges of bodies created for what is called nuniicipal |)ui'p()ses, that is to say, the local regulation of decency, order, n .'. so forth. In Slavin r. Corporation of Orillia, 30 IT. C.Q.B. 159, p. 175, 1 Cartwright Cases, 688, it was said by llichards, C. J., that it must be assumed that the Imperial Legislature in pa.ssi ig the B. N. A. Act of 1867 intro- duced tlie various provisions on suggestions of the delegates from the various provinces ; and the delegates of the united province of Canada probably well knew of the Ai't of that in'ovince, 15 August 1H06, respecting the municipal in- stitutions of Upper Canada, 29 i*t 30 Vict. c. 51., in which power was granted to the municipalities in I'pper Canada, mider certain con- ditions, to limit the lunubei' of taverns and to prohibit the license of shop.s for the .sale of s[)irituous liquors in the several municipalities ; and that when the Imperial Act uses the very words of the title of this Act as one of the classes of subjects on which the provincial legislature may pass laws, namely, '^lunicipal institutions in the pro- vince,' there was no reasonable doubt that it was intended that the ' muni- cipal institutions' which were to be constituted luuler that authority were to [wssess the same powers as those which were then in existenci, under the same name, in the [trovince. Their being followed by sub-.sec. 9 dill not show an intention to limit the oxercis€' of the powers which municipal institutions ought to have, and which they had, of limit- ing thesale by ri'tail in inns, or pro- liibiting the side in .shops, but rather tore'uovealldoubtsas to tlieir right to raise a revenue, either for provin- cial, local, or municipal purposes, by the issuing of these and other licen- ses : The Queen r. Frawlev, 46 U. C. Q. B. 153; 7 O. A.R. 246 (Modge'.s case), 2 Cartwright, 576. 'The appellant's argument is that there is no ])ower luuler sid)-see. 9 tn grant licenses except for raising a reveinie. But Hodge r. The Queen decided that a provincial legislatnrc was comi)eteut to create licensing; bodies for the purpose of licensing piM'sons X) carry on the liipinr tratiic as a matter of police and nninicipal regulation, anil that suli- sec. 9 is cunndative and not i-e- strictive. It was to remove doubts, lender sid)-sce. 2, sec. 92, the pro- vince has the |)ower of direct taxation within the [)rovinces in order to raise a revenue, and it nnght have been suggested tliiit raising money by means of licenses was not direct taxation but indirect taxation, and it therefore gixcs them the ex])ress power of grantini; licenses for the jmrpose of i-aising :\ reveinie as an express power, not i-e.sti'icti\e .so as to prohi' it them from granting licen.ses exce])t Inv the pur[)ose of rai.sing revenue, lint really cumulative, ami to remove doubts whether they might grant licenses for that purpose, as being a direct taxation. Indirect ta^ati()ll being contiued to the Dominiiin. [Lord iMonkswell : If the section is taken by itself, it appears very ditlicult to say that it would ex- clude the power of imposing sonir condition — .sucli as, if the owner of a public house keeps his Iioum' open l)eyond 12 he shall not have u lieen.se.] Yes. Now this Act of 1H83 does interfere with that wliieli must be admitted to be within the exclusive inri.sdiction of the \ni.)- vincial legislature, the i.-.-ue of licenses in order to rai.se a reveiHie. The appellant founded on thechniN' of this 18S;{ Act which .sived tlic payment of any duty fixed liy tiu' provincial legislalni'e, and heseenu'il to think that prevented the Act their exelnsi\i' sec. 9. But the license issued under this Act of 1883 licensed a person to sell liquor. Is not that inconsistci.t with the power conferred on \\w provincial legislature of grinitii:;; interfering with power undei '44.'' B.N.A. ACT, s. 92 (1»)— VESSEL LICENSES, 155 licoii-i's witii a view t(i raising I'i'vi'uiif.-? Tilt' words of siil)-sw. 9, ^w. i>2, j^ivos the cxcliisivi' powiT 111' tiixiitum l)_v iiicaiis of licenses tor pniNJneiai, local, or nninicii)al niirposi's, and this Act of lHi-t3 is a liixiition of Her Majesty's snl)jects witliiii the province for niiinicipal |iiiriK).-c'>, l)ecaiise the halance, .ifter |iiiviin lit of the inspector's salary iiiul the expenses of the connnis- ^illm■l•s, goes into the nuinicii)al iR'iisiny. The Dominion actually li.ws the taxation to be paid by IxTSOiis taking ont licenses, &c., for till' boiiefit of the mnnicipality ; and tliiit is ii most clear infringement of Mill-see. !), sec. 92. The regnlation III' tiiide and connnerce cannot be liikcii in tlie wide, extended, and iin- liinitoil sense the ai)pellants desire loMiiply to it. The sec. 91 it.self -hows that cininot be so, for in sub- Mr. 15, relating to * baidviiig,' to be this, that the Tcniperaiicf Aut rendered thv sjile of liquor unlawful, .speaking broadly, '['his Act iis- sumes the sale of liquors to h' law- ful, and the (inestioii is whetlicr tlic power to liceii.se the sale resides in llic Dominion.] Or in other W(ircl>, to provide municipal institutions for the purpose of regulaliiig ii. [Sir Barnes Peacock : The ililli- ciilty I feel is this, whether tiun may not prohibit conditioiifiiiy, iinil if they prohibit conditionally, whether they may not pro\i(le a means for ijerformiug that con- dition.] It is too late to argue that after Hodge v. The Queen. We do not argue, on the one hand, that the provincial legislatures haw exclusive jurisdiction over temper- ance legislation, nor, on the otiur hand, is it competent, after Hodge /■. The Queen, to argue the DoiiiiiiioM Parliament l;;.ve exclusive legisla- tion over temperance. Mr. Haldane followed. Sir Farrer Herschell, Q.C., re- plied. [Lord Halsbury, L.l'.; "'Marriage and Divorce,' see. 91, and ' Solemnization of ^huriafre,' ,sec. 92. Would you sjiy, witli tiienli- ject of promoting morality uiidgeoil government, the Dominion I'ailia- ment woul-. Hodfic r Tlie Queen may Ix' reconciled in tliis way — that a provincial Act may deal with a matter of that sort, nHinicipally anil loeally, without preventing at aiiv time the Dominion Parliament dealing with the same suhject- niatter for <;eneral [lurposes in the Duminion. A thin;^- may W at a ijiven time a local matter, which niav lie dcidt with locally within tile peil'ei't jHiwers of the provinces, wlliell lleverllleless may have to he dealt with hy the Dominion as a wliiile for the whole Domiiuon at •<(iiiie other time. As to re<^ulation iif trade, what was left to the ceii- tiiil legislature in the Ignited States— which Constitution was no dimlit considered in drawiureine Court of Canada upon the same, with reference to the com[)e- tence of the Canadian Parliament to pass the Acts 40 Vict. c. 30. and 47 Vict. c. 32., in whole or in part, Eeo. v. Hami- may be referred by Your Majesty "'^^ • to this Coumiittee to report thereon, the Lords of the C'immittee, in obedience to Youi- Majesty's sjjccial order of reference, have taken the said luHuble petition into considerit- tiun, and having iieard counsel lliereupon for the Dominion of Canada, and likewise^ for the Lieu- tenant-Govei'uors of the respective provinces of Ontaria, Quebec, Nova Scotia, and New Brunswick, and having been attended by the agents f(n' the province of British Colum- l)ia, their Lordships do this day agree humbly to report to Your Maje.sty as their opinion, in reply to the two questions which have been referred to them by Your Majesty, that the Liquor Liceu.se Act, 18H3, and the Act of 1884 amending the same, are not within the legislative au- thority of the Parliament of Can- ada. The provisions relating to adulteration, if separated in their operation from the rest of the Acts, wouhl l)e witliin the authority of the Parliament, but as, in tlicir Lordships' opinion, they cannot Ix" so separated, tlunr Lordshi|)s are not prepared to report to Your Majesty that any part of the.se Acts is within such authority.' " Her Majesty having tjiken the said report into consideration, was l)leased, by and with the advice of her Privy Council, to apjuovu thereof and to order accordingly. Whereof the Governor-General ot the Dominion of Canada, the Coni- mander-in-Chief, and the Lieu- tenant-Governors of the resiiectivf jn'ovinces of the Dominion for tlic time being, and all othei' per.sons whom it may concern, are to take notice ami govern themselve> ac- I'ordinglv. "C. L. Pkki." A brewer allowed beer to lie consunu'd in a cellar attached td the l)re\very. He had a Domiiiinii license ami also a pi'ovincial licciix'; by tlu' hitter he was not to sell any liquor on the premises. Thus :— Keg. r. H.vllid.w, Dec. 22, 1893, 21 O. A. R. 42, was an appeal by the Attorney-Genei'al for Ontario from the judgment of the County Court of Wellington. Sit. (II of the (Ontario Licen.se Act, H. S. O. c. 194., is identical with .sec. 70 of the Lifjuor Jjicense Ai't of Canada, 1883 [10 Vict. c. .'10,]. Boyd, C, said: "That whole Act of the Dominion, a.ssuming to regulate the li(pior trallic, was de- clared II It 1(1 rire.s by the Privv Council upon a statutory case sub- mitted [xce a hove]. It follows that the regulation of the li(pi()r traific is a matter of provincial conse- quence. To this effect both Ritchie, C.J., and Fournier, J., expressed themselves, that since Severn r, Reg., 2 S. C. R. 70, the course of decision in the Privy Council has renu)\ed any doubt as to tht! [)ower of provincial Itgis- latmvs to pass laws regulalinf; the sale of liquors (whetiier wlioli B.X.A. AC r, s. 92 (9).— BREWERS' LICENSE. 1 r)9 sale or ivtail), in Molson v. Lambc, 15 S. C. R. 253. This was a liivwcr's ease, tlic (lufstion IxMiif^ as ti)tlu'nii)acity of tlic Ciiicbcc Lcgis- tiirc to require a licensf to be laki'ii out by brewers duly licensed to inaniit'acture by the Dominion. Uanisay, J., in the court below, s)ii(l: 'This was to be defended under tlie B.N. A. Act, see. i)2, .sub- >t'c. 9, and amounted to an impost liV way of license for the pm'pose oi' riiisinn; revenue on the ordinary tnulc of a brewer. He referred to Severn f. Roj^. as an isolated and (■oini)rouiised judgment of adivided cdiu't, and the majority of thecoui't lifld, MS did the Su]ireme Court, tliiit the Act was constitutional.' Strong, J., now C..I. of S.C.. looiv snlistimtiidly tlie same \ iew in Se\-- crn r. l{eg.. and I tliink the course lif decision lias been lo andic, Mai'cii !.•), IHHfi, 15 S. C. |{. 253. So ilie Coiu't of (}. B. in (Quebec, in :ili|M'ai, held in 1H9() that tiie local li'f,'isiatnre might authorize muuici- |jaiitips to levy a tax for local pur- poses oil w'holesale li(pu)r dealer's. McMaiiauiy r. Shcrbrooke, G Mon. li. B. 109. R. S. O. c. 19t. s. ")1 requires brewers, distillers, &(.'., t(i otitain a license to sell by wliolesale, treating them, though luamifai'turers, as also wholesMl" ilenlers. To this no valid objec- tion ciin now be raist'd, it appears to iiie, because of its being an i'\ter- teivnce with trade. In one respect it may be so, but in another respect it is a means of raising revenue for local and provincial purposes, and of ]Milice regulation for the piesei'- \n\m\ of order. Tile legislation is ju.stiHcd, under B. N. A. Act., sec. Kku. v. Hai.m- '92, siib-secs. 8, 9. Tl.e Liquor "a^- Liceii.se Act is properly classified in tbe statutes under the liead of 'nninici|)al matters,' and the whole object of the enactment in question is to e.verci.se supervision over the sale and consumi)tioii of spirituons and fermented liipioi's, imposing license fees for the |)urpose of de- fraying the expense of such local government, with a sni'plus for other niuniei|)aland jirovincial |)nr- poses [,see. 45]." Osh-r, J.A., said: "The aj)- peal derives any imporljince solely from the objection, fii'st raised by the respondent in this Court, that sees. 51 (2) and 61 of the lii(pior License Act are ulfro rirt'.i the provincial legislature, the de- I'eiidant being ;i brewer, and the holder of a licen.>ie lo manufacture lieer, Ac., from the Doniinicni (io- Ni'rninent. He relies on .Se\ern v. I{eg., and certainly if we could now act on that case without regard to more recent decisions, we should have no dillieulty in upholding the judgment by which the conviction has been quashed. It has not been, in terms, oxcrruled by the Judicial Committee of the Privy Council, and it may be said that, although it could be explained or distinguished, it could not be ovi-rruled by the court which decided it. Nevertheles.s, the gr(ani(ls on whicli it rested appear tolia\c been considerably weakened, if not entirely demolished, as the Federal Act has become more ex- tensively discussed and, perhajjs, better undi'i'stood. These grounds were : (1) That the imposition of a license by the local goxcrnmcnt uix)n a person carrying on the trade of a brewer and the manufacture of beer, and who already held an excise license from the Dominion CTOverninent, was an interference with the exclusive powers of Parlia- ment as to the regulation of trade and commerce under .sec. 91, clause 2, of the B. N. A. Act, and could not be regarded merely as the exercise of a police power; (2) r:f ■;! ! ;l ii« Rw}. V. Hai-ij- DAY. TiiunLow 1'. AlAssAcirr- 8BTTS, &L'. 160 B.N.A. ACT, s. 92 (9).— I'. S. LICENSE CASES. That the right eontVrred upon the lootil U'gissliitinvs hy see. 92, climsc 9, to deal exeUisively witli shop, tavern, auctioneer, and other licenses, did not extend to licenses to brewers, or other licenses which were not of a Icx'al or municipal character; and (3), — which is, per- haps, included in or co\ercd liv tiie last ground — that such licenses were not aut.liori/ed Iiy sec. 92, clause 2, as an exercise ol' a power of' direct taxation within the jn'ovince in order to the raising of a rcxcnue for j)rovincial pui'po.scs — in short, that they were indirect taxation. The tlrst grotuid seems no longer sustainalile in the face of Hodge /•. Reg., 9 App. Cas. 117 [vcc dhorc], which affirms the i>ower of the local legislatures to regulate the sale and disposal of intoxicating liipiors, and the later case of Bank of Toronto -r. Lanihe, Julv 9, 1887, 12 Apj). Cas. 57o [aee ante, p. 113]; which IS also directly opposed to the view that a local license fee, whether upon hi'ewers or upon hankers, woidd he an interference with trade and com- merce. As to the other grounds, the last-mentioned case affirms the power of the legislature to iinpo.se a direct tax upon a hank or other commercial corporation, carrying on business within the pi'ovince, and inferentially, therefore, that a license fee imposed upon a person carrying on tlie trade of a brewer and wholesale vendoi' of ale is not indirect faixntion, but conies within the 2nd clause of the 92n(l sec- tion of the Act, and is intrn vires provincial legislation. Further, this view of the effect of these de- cisions is taken by the Supreme Court itself in Molson v. Lambs, 16 S. C. R. 253 ; and no one can read the report of the argument and discussion before the Judicial Coniniittee upon the question of the validity of the Dominion Li- censing Acts, 1S83-4, which were ultimately declared by that body to be tiltrft vires the Dominion Par- liament, without seeing that the legitiniale consccpience of their dc I'ision is to ailii'iii I he power of the piovincial authority to impose a license or tax upon a brewer or manufacturer of beer, and to regu late the mode of carrying on tlie business or trade. I think, there- fore, that the sections in tpiestion ar(^ infra vires." Hagarty, (\J.()., and MacLennan, J. A., concuired. In the license cases in the United States, Tiii'KLOW v. Ma.ssaciiu- sKTT.s, Ac, Jan. 1847, 4(5 S.C. I'.S. (") How.) 58ti, Taney, C.J., said, dealing with the law of New Hampshire : " The law of New irainpsliire is in my judgment m Niilid one. Foi- although the gin sold was an import from another State, and Congress have clearlv tlie power to regulate such impor- tations, under the grant of power to regulate commerce among the .several States, yet, as Congress has made no regulation on the subject, the traffic in the article mav lie lawfully regulated by the State as soon as it is landed in its territorv, and a tax imposed upon it, or a license required, or the .sale alto- gether prohibited, a<'Cording to the policy which the State may siip- jiose to be its interest or duty to pursue." HK(i. r. Justices of Ki:,g's Cor.NTV, Feb. 1875, 15 S. C. N. B. (2 Pugs. Rep.) 535. 'I'he New Brunswick Act, 3G Vict. c. 10., enacted that "the general session of the peace for the several counties in this provini'o are hereby empowered to grant wholesale ami tavern licenses to such and so many persons of gooi! character as they in their discre- tion shall think proper, to sell liquor by Avhole.sale, or keep n tavern within their respective coun- ties, demanding and receiving for everv such license a sum not ex- ceeding .SlOO, nor less than «20." One McManus tendered the money for a license and was refused, the Justices of King's t" ■ BN.A. ACT, s. 92 (9).— LOCAL OPTION ACT. 161 ';«s- County absolutely declining to grnnt a license to any person. Ritchie, t'.J., Allen, Weldon, Fisher, and Wetiuoiv,JJ., granted a niandannis, Imldinfr the i)rovisions of the Act were ultra vires the powers of the provincial legislature. [See Note, sub-sec. 2, sec. 91.] In Reg. v. Prittie, 1878, 42 U. C. Q. B. 612, it was held to be ultra vires of the Ontario Legisla- ture to make the provisions of the Ontario Licensing Acts have full force and effect in a municipality where the Canadian Temix^irance Act of 1864 was also in force, the effect being to make an offence against the one an offence against the other ; the reason given against the local Act having such an effect being that that would be direct legislation on criminal law and procedure in a criminal matter, which was not in any way neces- sary for the due exercise of the provincial legi.slature's own proper power. See Suite v. Corporation of City of Three Rivers, Jan. 12, 1883, 11 S. C. R. 25, in Q. B. Quebec, 5 Legal News, 331, which follow- ed Hodge V. The Queen, and decided that a bye-law passed by the City of Three Rivers, imposing a duty of 8200 on issuing a license tosell intoxicating liquors, was goo ., following o\it his opinion in eg. I'. Justices of King's County, io S. C. N. B. (2 Pugs.) 535, held the Quebec Act, 42 & 43 ^'ct. c. 4., which ordered the closing of saloons or taverns on S 3340. Sunday and at special times, as Poulin v. Cor- valid; it being simply a local police poration of regulation and incident to the local Q'"^'**'^'- legislature's power to legislate in rehjtion to municipal institutions. Meredith, C.J., in Br.ofm v. Blouin v. Corporation of Quebec, 18 Dec. Cori-oratioh 1880, 7 q. L. R. 18 (and his judg- °^ '^"™^''- ment was sustained on appeal, 9 S. C. R. 185), having cited Frederic- ton V. The Queen and like cases, siiid : " The foregoing citations art' given as showing that although the Parliament of Canada, untler its power to regulate trade and com- merce, alone has the power to prohibit the trade in intoxicating liquors, yet that the provincial legislatures, under the powers given to them, may for the preservation of good order in the municipalities specially under their control (sub- .sec. 8), make reasonable police regulations, although such regula- tions to some extent affect the sale of spirituous liquors, provided they do not improperly interfere with trade and commerce And Ramsay, J., concurred. In Pigeon v. City of Mon- Pioeon i-. City TREAL, from Q. B. Quebec, 33 "^ ^lo^TREAr- L. C. J. 221 ; in S. C. March 10, 1889, 17 S. C. R. 495, there was a proceeding in prohibition to restrain the Recorder's Court from proceeding to hear and (h'termine an action instituted by the City of Montreal against Pigeon to recover a fine imposed for an infraction of a bye-law of the city, which required all ])ersons exposing meat foi- .sale in any private stall or shop outside of the public meat markets to take out a licen.se, for which license the sum of .S200 was to be paid. The Quebec Act, 37 Vict. c. 51. s. 123, sub-sec. 31, authorized the city of Montreal to |)ass bye-laws and to impose a duty on the .sale be- yond the limits of the market of, inter alia, meat. It was held this provincial Act and bye - law were valid. [.See Note, sub-sec. 2, ■ 1 ■ c 1] ;:i ! ; nn ! i RH^'* lisii Danaher t'. Peters. i!i 162 B.N.A. ACT, 9. 92 (9). -WHISKY PROHIBITION. Case submitted by Governor- General in Council. Att.-Gen. of Ontario v. Att.-Gen. of THE Dominion, &c. ProhiViitory Liquor Laws. sec. 91.] Suppose the provincial legislature enacted that the sale of liquor also should only be carried on in certain specified spots in the city, would such an Act or bye-law be valid ? In Danaheb v. Peters, and O'REdAN V. Peters, June 14, 1889, 17 S. C. R. 41, one of the questions was, Whether the New Brunswick Liquor License Act, 1887, 50 Vict, (N. B.) c. 4. s. 10, which provided that applications for licenses tinder the Act must he en- dorsed by the certificate of one-third of the ratepayers of the district for which the license is asked, was valid ? It was contended this was a prohibi- tory measure, inasmuch as the rate- payers were able to prevent the carrying on of the trade by refusing to sign the certificate. The case came to the Dominion S. C. from S. C. N. B., which refused a Avrit of prohibition restraining the en- forcement of a conviction under the Act. The S. C. of the Dominion [Strong, Fouinier, Taschereau, and Patterson, JJ.] held that the Act was not m/i ra vires, [See Note, ante, sub-sec. 2.] The Minister of Justice, 5 Jan. 1875, doubted whether it was with- in the competency of a ijrovincial legislature to pass a law which absolutely prohibits the sale of liquor, as being an interference with the parliamentary power of Canada to legislate in respect to the regulation of trade and com- merce. Prov. Leg., 1886, 604. Case Submitted by Gover- nor-General IN Council. — Att.- Gen. OF Ontario v. Att.-Gen. of the Dominion and the Dis- tillers' AND Brewers' Associa- tion, which was decided by the Supreme Court, 15 Jan. 1895, and has been appealed to Her Majesty's Privy Council in England, raised the important question of provin- cial jurisdiction over the liquor laws of the province. The 1 8th section of the Ontario Local Option Act, 1890, 53 Vict. c. 56., was as follows : — " Whereas the following pro- vision of this section was, at the date of confederation, in force as a part of the Consolidated Muni- cipal Act, 29 & 30 Vict. c. 51. s. 249, sub-sec. 9, and was after- wards re-enacted as sub-sec. 7 of sec. 6 of 32 Vict. c. 32., being the Tavern and Shop License Act of 1868, but was afterwards omitted in subsequent consolidations of the Municipal and the Liquor LiceiiHe Acts, similar provisions as to locnl prohibition being contained in Tiie Temperance Act of 1864, 27 & 28 Vict. c. 18.; and the said last-men- tioned Act having been repealed in municipalities where not in force by The Canada Temperance Act, it is expedient that municipalities should have the powers by them formerly possessed ; it is hereby en- acted as follows : — The council of every township, city, town and in- corporated village may pass bye-laws for i)rohibiting the sale by retail of spirituous, fermented or other manufactured liquors, in any tavern, inn or other house or place of public entertainment, and for pro- hibiting altogether the sale thereof in shops and places other than houses of public entertainment: Provided that the bye-law, before the final passing thereof, has been duly approved of by the electors of the municipality in the manner pro- vided by the sections in that behalf of the Municipal Act : Provided further that nothing in this section contained shall be construed into an exercise of jurisdiction by the legislature of the province of On- tario beyond the .revival of pro- visions of law which were in forte at the date of the passing of The B. N. A. Act, and which the sub- sequent legislation of this province purported to repeal." The amend- ing Act of 1891, 54 Vict. (Ont.) c. 46., was passed to put it be- yond doubt that the Act of 1890 was intended to prohibit the sale by retail only, as was the case BN.A. ACT, 8. 92 (9).— WHOLESALE AN^D RETAIL. 163 under tlio Act of 180G [29 & 30 Vict. c. 51. 8. 252]. The cor- responding! provisions for Lower Canadii, al)Ovo given, were snb- stantiiiily re-enacted in the Quebec Municipal Code, nrt. 571. The va- lidity of these enactments has been upheld by unanimous judgments of the Court of Appeal of Ontario. See In re Local Option Act before Hngartv, C. J., and Burton and Mac- lennan," JJ.A., Sept. 23, 1891, 18 0. A. R. 572 ; and upheld in Que- kc, in Corporation of Hiintingdon V. Moir, :\Iarch 21, 1891, 7 Mon. Q. B. 281, by Dorion, C.J., Baby, Bosse, Doherty, and Cimon, JJ., reversing B^langcr, J. On 20 Oct. 1893, the tollowing questions were referred by the Governor-General in Council to the S. C. under the R. S. C. c. 135., Supreme and Exchequer Courts Act, as amended bv sec. 4 [see post, sec. 101] of 54 & 55 Vict, c. 25 :— (1) Has a provincial legislature jurisdiction to prohibit thesalewith- intheprovinceofspirituous,ferment- ed, or other intoxicating liquors ? (2) Or has the legislature such jurisdiction regarding such portions of the province as to which the Canada Temperance Act is not in operation ? (3) Has a provincial legislature jurisdiction to prohibit the manu- facture of such liquors within the province ? (4) Has a provincial legislature jurisdiction to prohibit the impor- tation of such liquors into the pro- vince ? (5) If a provincial legislature has not jurisdiction to prohibit the sale of such liquors irrespective of quantity, has such legislature juris- diction to prohibit the sale, by retail, according to the definition of a sale by retail either in statutes in force in the province at the time of the confederation, or any other defin- ition thereof ? (6) If a provincial legislature has a limited jurisdiction only as regards the prohibition of sales, has the legislature jurisdiction to pro- hibit sales subject to the the si'Vi of the 99tli .section of " The Canada limits ATT.-nr.N. ok OnTAKIO 1', Att.-Oen. (11- |)rovided by the .S'veiid sub-sections "''''''^"'" ' TME DOMI.N'IDN, I emperance Act, or anv of them, &c. R S C c. 106.S.99? ■ ProhiLltory (7) Had the Ontario Legislature Liquor Laws, jurisdiction to enact the 18th section of the 53 Vict. (Out.) c. 50., in- tituled " An Act to improve the Liquor License Acts," as said .sec- tion is explained bv the 54 Vict. (Ont.) c. 40., intituled "An Act res|)ecting local option in the matter of liquor selling" ? The case was argued before Sir Henry Strong, C.J., Fournier, Gwynne, Sedgewick, and King, J J. The three latter answered all the questions in the negative. The Chief Justice and Fournier, J., dissented from that view, being of 0])inion the questions should be answered in tlie affirnintive, with the excep- tions o. questions 3 and 4, which they considered should be answered in the negative. The case was heard on 1, 2, 4 May 1894. The Att.-CTcn. for Ontario sub- mitted the first four questions shoidd be answered in the affirm- ative. Cited, to show could pro- hibit before confederation, C. S. L. C, 1801, c. 24. .s. 20; as to Three Rivers, 20 Vict. c. 129. s. 37; as to I^])per Canada, 22 Vict. c. 99. s. 245, sub-s. ; C. S. 29 & 30 Vict. c. 51. s. 249; as to r. C, 1859, c. 51., s. 246, sub-s. 6; Nova Scotia, 21 V^ict. c. 47., and R. S. N. S. 3 Series, c. 19. ; as to " municii)al resolutions," Quebec Resolutions, No. 43 ; Lepine v. Lau- rent, 17 Que. L. R. 226; 14 Q. Legal News, 369, where Lynch, J., upheld the right of the town of Magog to prohibit the sjile by wholesale as well as retail under a Quelwc statute. And the cases given above. The Dominion counsel answered to the 1st and 2nd questions, by retail, in the aifirmative ; to the 3rd and 4th in the negative ; and to the 5th, 6th, and 7th in the affirmative. At^.-Gen. for Manitoba agreed with Att.-Gen. for Ontario. L 2 Att.-Gih. or Ontabio v. Att.-Oen. of TUB Dominion Prohibitory Liquor Laws iii i M ii 164 B.iJT A. ACT, s. 92 (9).— DEFINITION OF WHOLESALE. Tho Att.-Gen. for Quebec, to questioiiH I and 5, answered that provincial legislatures have no juris- diction to totally prohibit the sale within the province of spirituous, fermented, or other intoxicating liquors, as this would be inter- fering with the regulation of " trade and cotnmerce," over which the Parliament alone has jurisdiction. But under tlie exclusive legi.slative authority given to the provincial legislatures with regard to " munici- pal institutions," and to "matters of a merely local or private nature within the province" [sub-sees. 8 and 16, sec. 92], provincial legisla- tures can confer on municipal cor- porations power to jMiss bye-laws prohibiting the sale of spirituous liquor by retail in shops and places of public entertainment, and limiting the number of tavern licenses with- in the province. To the 2nd (ex- cepting as above), 3rd, 4th, and 6th questions, in the negative. The Brewers' and Distillers' As- sociation, that a negative answer ought to be given to all the questions. After the decision of In re the Local Option Act, 18 O. A. R. 572, the same question was raised in Huson V. South Norwich. It in- volved the validity of a bye-law prohibiting the retail sale of liquor within the township under the au- thority of the same Ontario Local Option Act. Hagarty, O.J., Bur- ton, Osier, and Maclennan, May 20, 1892, 19 O. A. E. 343, held the bye-law valiil. Huson, represent- ing the liquor dealers, apjjealed to the S. C, and on 15 Jan. 1895, Sir Henry Strong, C.J., Fournier, and Taschereau, JJ. (Gwynne and Sedgewick, JJ., dissenting), hehl the Act valid. As will be seen be- low, in The Att.-Gen. of Ontario v. The Att.-Gen. for the Dominion, the Ontario Act was held to be ultra vires by Gwynne, Sedgewick, and King, JJ. (Sir Henry Strong, C. J., andFournierdissenting). Therefore on the same day there were conflict- ing decisions on the same question. [The following judgments his Lordship, the Chief Justice, kindly returne(l to me in proof corrected. His Lord.ship also sui)plied me with the judgments in Huson v. South Norwich; see post, p. 195.] Judgment in Att.-Gen. of Ontario V. Att.-Gen. for the Dominion, 15 Jan. 1895:— Sir Henry Strong, C.J. : " My reasons for the foregoing answers will appear from my judgment in Huson ». South Norwich" [acpies- tion on the same Act, reported on the validity of the publication of the bye-laws in 21 S. C. R. 669]. *' I have only to add that I do not think any statutory detinition of the terms ' wholeside ' and ■ retail ' is requisite, but if legislation is required for such purpose it is vested in the Dominion as apper- taining to the regulation of trade and commerce. I answer the 3r(l and 4th (luestions in the negative, because the prohibition of manufac- ture and importation wouh. affptt trade and commerce, and so must belong to the Dominion ; and fur- ther, for the reason that prohi- bition to that extent would affect the revenue of the Dominion de- rived from the customs and excise duties." His Lordship's judgment in Huson V South Norwich was: " All questions involved in this appeal, save that relating to the constitutional validity of the 18th section of the Ontario statute, 53 Vict. c. 56., entituled ' An Act to improve the Liquor License Laws,' as explained and limited by the On- tario statute, 54 Vict. c. 46. s. 1, have been already disposed of. [21 S. C. R. 669.] This remaining point we have now to determine. " I am of opinion that these en- actments were intra vires of the provincial legislature. The learned judges of the Court of Appeal, in the case of the Local Option Act [18 O. A. R. 572], have dealt fully with this identical question, and I so entirely agree with botli their reasons and conclusions that I might well have contented myself B.N.A. ACT, 8. 92 (9).— DOM. INCOMPETENCY. 165 with n reference to that case with- iiiit adding to the mntss of judicial decisions already accumulated on the subject. There ai)[)ears to nie, iiiiwever, to be some additional iviisoiis, which I will state as suc- cinctly as possible. We are pre- clmled by the decision of the Privy Council in the case of Kussell V. The Queen, 7 App. Cas. 829 [see Note, above], and by that of this Court in the Citv of Frederic- ton V. The Queen [3 S. C. R. 505], IVoin holdiuf^f that under sub-sec. 8 of sec. 92 of the B. N. A. Act, the cxclusixe power of prohibiting the sjilc of liquor by retail, including tlie enactment of what are called Local Option Laws, was given to the provinces as an inciilent of the liolice i)Ower conferred by the words 'Municipal institiitions.' 'J'hat those words do confer a police power to the extent of licensing and regulat- ing was decided by the Privy Coun- cil in the case of Hodge v. The Queen, 9 App. Cas. 117 [see Note, above]. The question then is nar- rowed to this : Have the provinces, under this sub-sec. 8, a power con- current with that of the Dominion to enact prohibitory legislation, to lie carried into effect through the instrumentality of the municipal- ities or otherwise, either generally or to the extent of the power of prohibiting which had been con- ferred on municipal bodies by legislation enacted prior to con- federation and in force at that date ? It is established by Russell V. The Queen that the Dominion, being invested with authority by sec. 91 to make laws for the peace, order, and good government of Canada, nuiy pass what have been denominated local option laws. But as I understand that decision, such Dominion laws must be general linvs, not limited to any particular province. It is not competent to Parliament to draw to itself the right to legislate on any subject which by sec. 92 is assigned to the pro\-inces by legislating on that Bubject generally for the whole Dominion, but this is, of course, not done where in the execution of a power expressly given to it by .sec. 91, the Federal Legislature makes laws similar to tho.se which a provincial legislature may make in executing other powers expressly given to the provinces by see. 92, Therefore, it appears to me that there are in the Dominion and the provinces, iesi)ectively, .several and di.stinct powers, authorizing each, within its own sphere, to enact the same legislation on this subject of prohibitory liquor laws, r ■- straining sale by retail ; that is to say, the Dominion may, as hat, already been conclusively decifk-d, enact a prohibitory law for the whole Dominion, whilst the pro- vincial legislatures may also enact -iiniilar laws, restricted, of course, to their own jurisdictions. Such jirovincial legislation cannot, how- ever, be extended so as to prohibit importation or manufacture, for the reason that these subjects belong exclusively to the Dominion under the head of ' trade and coiumerce,' and also for the additional reason that the revenue of the Dominion derived from customs and exci.se duties would be thereby affected. That there may be, in respect of other STibjects, such concurrent powers of legislation has already been decided by the Privy Council in the case of the Att.-Gen. of Ontario v. Att.-Gen. of Canada, [1894] A. C. 189, where this ques- tion arose with respect to insolvency legislation. I venture to think the present even a stronger case for the application of such a construction than that referred to. To neither of the legislatures is the subject of prohibitory liquor laws in terms assigned. Then what reason is there why a local legislature in execution of the police power con- ferred by sub-sec. 8 of sec. 92, may not, so long as it does not conflict with the legislation of the Dominion, adopt any appropriate means of executing that power, merely because the same means AtT.-GeK. IIF O.NTARIO V. Att.-Obw. or THE D0MIIII0!«, &c. Prohibitory Liquor Laws. Slit JIrnry Strono, C.J., for validity. Inl Ir ijiii' ,1 ■ 'i i H |: 166 B.N.A. ACT, s. 02 (0).— RETAIL ANT) " C0MM15RCE." Att.-Gk;*, or 0:«rAHlo r, Ari'.-dKN. or TUB Dominion, I'mhibitory Liijuor Ijiiwk. Sill Heniiv Stuo.no, C.J. iniiy lie mloptt'd by the Dominion I'liriiaincnt under tlu- iiiitliority of SCI'. !)l ill cxt'cntin;; ii power specitieally <;iveii to it ? It Ims been decided liy tlie iiigliest antliority tliiit tlierc are no reasons against such a construction This is, in- deed, even n slioiif', case for rc- eognisiii}; such a concurrent power than tile case of tlic Att.-Gcn. of Ontario r. Att.-dcn. of Canada, Ix'cause liankruplcy and insolvency laws arc, hy sec. 01, expressly attributed to the exclusive juris- diction of tho Dominion. In the event of legislation providing for prohibition enacted by the Do- minion anroviiues forming the confederation and the ImiK?rial Go- vernment, as .such terms and pro- visions are expressed in the reso- lutions adopted by the framers of the Constitution, and by the respec- tive legislatures of the jtrovinccs ofi Canada, Nova Scotia, and New Brun.swick, and by the Imperial Government. So likewise must we keep ever present to our minds the fact that the main object of these provincial statesmen, who were the authors and founders of our new Constitution, in fra.ning their project of confederation, was to devise a scheme by which the best features of tiie United States of America, rejecting the bad, should l)e grafted upon the British Con- stitution, and to vest in the pro- vincial legislatures exclusive juris- diction over all matters of a purely ]»rovincial, local, municipal, ami domestic character, and in the general or central legislature ex- clusive jurisdiction over all matters over which, as being of a general, quasi-national, and sovereign charac- ter, the inhabitants of the several provinces might be said to have a common interest distinct from the particular interest they would have in matters offecting the local, municipol. and domestic affairs of the particular province in which each should reside. That this was the main design of the scheme of confederation proposed by the framers of our Constitution, and as intended by the resolutions adopted by them, is abundantly apparent from the speeches accompanying the submission of the resolutions to the legislatures of the provinces for Att.-Ob!*, of Ontahio I'. Att.-Okn. or TIIK DOMI.NKIN, Proliiliitory Liquor LawM. FounjiiEB, J., for validity. GWYNNB, J.| against validity. ,5 ' i I r^m Att.-Gen. of Ontario v. Att.-Gen. of THE Dominion &c. Prohibitory Liquor Laws. G-WYNNE, J. ,1 I i 168 B.N.A. ACT, 8. 92 (9).— LORD DURHAM'S REPORT. their adoption. The late Sir John Macdonald, the chief of the pro- vincial statesmen eni^ajjed in fram- ing the resolutions, when present- ing them to the legislature of the province of Canada f(jr their adop- tion, says : ' We nnist consider the scheme in the light of a treaty ; the whole scheme of contV'deration, as propounded by the Conference, as agreed to and sanctioned by the Canadian Goverinnent, and as now presented for the consideration of the peoi)le and the legislature, l)ears upon its face the marks of compromise.' And again, ' In the l)ropose(! Constitution all matters of general interest are to be dealt with by the general legislature, while the local legislature will deal with matters of local interest.' Again, referring to the Constitution of the United States of America, he says : ' We can take advantage of the last 78 years during which the Con.sti- tution of the United Staies has existed, and I am strongly of opinion that we have in a great measure avoided in this system which we propose for the adoption of the people of Canada, the defects which time and events have shown to exist in the American Consti- tution.' And again, 'We have strengthened the general govern- ment, we have given the general legislature all the great subjects of legislature, Ave have confp -red on them not only specifically and in detail all the powers which are in- cident to so\ ereignty, but we have expressly declared that all subjects of general interest not distinctly and exclusively conferred upon the local government and local legisla- tures shall be conferred upon the general government and legisla- ture.' And, ' I .shall not detain the House by entering into a con- sideration at any length of the diflPerent powers conferred upon the general Parliament as contra- distinguished from those reserved to the local legislatures, but any honourable meml)er, in examining the list of different subjects which are to be assigned to the general and local legislatures respectively, will see that all the great questions which affe','t the general interests of the confcfleracy as a whole are confided to the Federal Parliament, while the local interests and local laws of each section are entrusted to the care of the local legislatures.' The late Mr. Geo. Brown, then President of the Executive Council of the province of Canada, and also one of the delegates who framed the Constitution, said: ' All matters of trade and commerce, banking and currency, and all questions common to the whole people, we have vested fully and unrestrictedly in the general go- vernment.' And, 'the Crown authorized ns specially to make this compact, and has heartily ap- proved of what we did.' And he described the terms of the scheme of confederation as embodied in the resolutions to Lord Durham's : ?port, wherein he suggested a imion of the provinces 'upon a plan of local government by elec- tive bodies subordinate to the general legislature, and exorcising complete control over such local matters as do not come within the province of general legislation, and that a general executive upon an improved principle ' should be esta- blished, together with a supreme court of appeal for all the North American Colonies.' And, again, he said that 'No higher eulogy could be pronounced upon the scheme produced than that which he had heard from one of the fore- most of British statesmen, namely, that the system of government which we pro[)ose seemed to him a happy compound of the best fea- tures of the British and American Constitutions.' Sir Geo. Etienne Cartier, then Attorney-General of Canachi East, and another of the framers of the Constitution for the j)roposed confederacy, said as to the general scheme, in advocacy of its adoption by the Canadian Legis- lature, ' Questions of commerce, of B.N.A. ACT, s 92 (9).— LORD CARNARVON'S SPEECH. 169 international communication, and all matters of general interest, would Ix" discussed and determined in the general legislature.' And, again, he said that in all their proceedings the trainers of the Constitution had the aijprobat ion of the Imperial Government, and in fine he said, 'I have already declared in our own name, and on behalf j,. the Government, that all the delegates that go to England will acce[)t from the Imi)erial Government no Act but one based upon the reso- lutions if adoi)ted by the House, and will not bring hack any other.' The resolutions having beenadojjted by the lej^islatures of Canada, Nova Scot..!, and New Brunswick, were transmitted to the Imperial Go- vernment, and, at the request of that Government, a conference was held upon them in Englanil be- tween delegates from those i)ro- vinces ami the Imperial Govern- ment, at which conference the resc- lutions were adopted almost verba- tim, with a slight modifi'-ation as to the power of the executive go- vernment of the confederacy, intro- duced at the suggestion of the Imperial Government for the pur- l)ose of still further strengthening the central executive of the pro- posed confederacy,' such modifica- tion consisting in expunging the •14th resolution, which proposed to vest in the provincial executive the [lower of pardon of criminal ofFen- e'e,s, as to which resolution Sir J. Macdonald had siud, when sub- mitting the resolutions to the Cana- dian Legislature, that this was a subject of Imperial interest, and that if the Imperial Government should not be convinced by the argument they would be able to press upon them for the continu- ance of the clause (1 tth resolution) they could, of course, as the over- I'uling power, set it aside. Accord- ingly, at the conference in England it was, v,I:h the assent of the pro- vincial uelegates, set aside and ex- punged, and that power of pardon was vested in the central or general government, and in other respects Att.-Gen. of the language of the resolutions Ontawo v. was not only substantially, but ^^H^ZZ^, almost verbatim et literatim, em- ^^ bodied in a Bill agreetl upon by Prohibitory the provincial delegates and the Liquor Laws. Imperial Government as the Bill co Gwtnne J. be presented to Parliament to be passed into an Act. In Her Majesty's A: IM;*' !l IP I 176 B.N.A. ACT, 9. 92 (9).— SULTE : RE-EXAMINED. :| I! Att.-Gbn. of Ontauio v. Att.-Qkn. of TUB Dominion, &f. Prohibitory Liquor Laws. G WYNNE, J. > l':im II i ill by sec. 92 under the exclusive jurisdiction of the proviiK-ial ie{;is- liitures by assuinin}i; to legislate upon such subject lor the wholt; Dominion. So lu'ither could a provincial lej^islatuie ac(iuire juris- diction over a subject coiiiin<; within any oiu^ of the classes of subjects enumeratetl in sec. !)1 by restricting the ap[)licntion of an Act of the ])rovincial legislature upon such subject to the limits of the province. But it is argued that neither in Fredericton nor in Russell was sub-sec. H of sec. 92 re- ferred to or con.sidered, aiul that, therefore, their Lordships' judg- ment in Russell and that of this Court iu Fredericton are open to review upon the question of ])rohi- bition now under consideration. From the fact that this item was not relied upon in those cases, it may fairly be inferred that it ne\er was considered by the courts or the bar to be applicable. The jurisdiction conferred by this sub-section seems to be that of establishing and main- taining municipal institutions. When the ])0vvers of our Constitu- tion were conferring \ipon the pro- vincial legislatures exclusive juris- diction to make laws in relation to ' municipal institutions in the pro- vinces,' they had no doubt in view municipal institutions such as existed at the time of the Federa- tion. But this sub-.sec. 8, sec. 92, says nothing as to the powers with which such municipal institutions may l)e invested; that seems to have been left to the discretion of the provincial legislatures to be exercised within the limits of their own jurisdiction, and would reason- ably comprehend within such limits all such powers as were then [)os- sessed by such municipalities, and which were essentially necessary to the good working of such institu- tions, as had already been possessed by all such institutions, a-;, for ex- ample, the power of issuing licenses to the persons to be engaged in the traific of intoxicating liquors, and the power of regulating the manner in which sudi persons should carry on tli(! trade in shops, saloons, hotels, or taverns, which, as Ijcinf; matters of a purely provincial, municipal, and domesti(r character, were subject to the jurisdiction over which was intende(l to be exclusive- ly vested in the provincial legisla- tures; and this is wliat Suite v. Three Rivers decides, and what was intended to be conveyed by the passage from my judgment in that case [11 S. C. R. at p. 43], which was cited by the learned counsel who argued the case upon behalf of the province of Ontario. But a special power only then recently for the first time conferred upon municipalities in the province of Canada, and which had never been conferred on municipalities in any of the other jjrovinces, could never be .said to be a ])Ower essentially necessary to the good working of such institutions; such power there- fore cannot be held to be compre- hended in sub-sec. 8 of that .sec- tion. In this subject is involved the particular consideration of the last of the questions submitted to us, namely, whether the IHth sec- tion of the Act of the Legislature of Ontario, 53 Vict. c. 56., is or is not tiltra vires. The jurisdiction assumed to be exercised by the Ontario Legislature in this section is not a jurisdiction which is claimed to be conferred upon pro- vincial legislatures by anything expressed in sec. 92 of the B. N. A. Act, but a jurisdiction which is contended to be impliedly vested in the Ontario Legislature, arising from the fact that municii)alities in the late province of Canada had at the time of confederation, by virtue of special Acts of the legislature of that province, power to prohibit, by bye-laws to be passed and adopted in the manner prescribed by the special Act, the sale by retail of spirituous liquors within the limits of the municipality passing such bye-laws, a power which was not possessed by municipalities in the province of Nova Scotia or in that J Hill B.N. A. ACT, s. 92 (9).— ONTARIO'S POWERS. 177 of New Brunswick ; and .such Acts iH'ing rei)Oivlc(l, it is contended that tlicLt'gisliiturc of Ontiirio has juri.s- iliition to revive their provisions. That the legishiture of the late nrovinw; of Cana(hi had juriscHction to [MisH ft" Act in prolubition of nil trnflie in intoxicating liquors or in any otlier article of trade niav lie admitted to be unque.stion- ftljfp, but I ai)i)rehend it cannot ftilniit of doubt that unless the pro- vincial legislatures have, all of them, under their newConstitution.s, juris- diction to pass an Act de novo for tjio purpose of prohibiting absolutely within their respective provinces the snie of intoxicating liquors, the Legislature of Ontario lias no special jurisdiction to invest nnuiicipalities with .such a power by passing an Act purporting to revive the pro- visions of an Act passed by the legislature of the late province of t'anadii within its jurisdiction, and which conferred such a power upon municii)alitie.s of the said late [)ro- vincc of Canada. The qnestion, therefore, involved in the 7th ques- tion is precisely the siune as that involved in the 1st and subsequent fiuestions, namely — have pro\in- cial legislatures of the Confederacy, under their new Constitution, juris- diction to make laws in prohibition of the trades of numufacturing, of imijorting, or of selling spirituous li(inors by wholesivle or by retail. The precise history of the legisla- tion recited in the 18th .section of the 53 Vict. c. 50. (Ont.), and niwn which the legislature of that province rest the jurisdiction as- sumed by them in enacting the provisions of that section, is as follows:— The legislature of the late province of Canada, by a special Act i)as:3ed in 1864, 27 [ & 28 Vict. c. 18., conferred power i upon the councils of municipalities jtoj)ass bye-laws in prohibition of the sale of intoxicating liquors prithin the limits of the munici- ility, subject to certain conditions I involving the adoption of the prin- jciple of what is called local option. S 2340. In the consolidation of the statutes Att.-Gen. op of the late j)rovince of Canada, the Ontahio v. provisions of the said Act 27 & 28 J^DoMiMOK. Vict. c. 18., were consolidated in ^f.^ one of the chapters of the con.soli- Pi-ohibitory dated statutes as sec. 249, sub-sec. Liquor Ijxwh. 9, of the Consolidiited Miinici- Owvnne .1, pal Act, namely, 29 & 30 Vict, c. 51. The whole of this section 249 was expressly reiiealed by an Act of the Ontario Legislature passed in 18G9, 32 Vict. c. 32., but its terms were inadvertently or by design repealed in .sub-sec. 7 of sec. 6 of the latter Act. In 1874 the Legislature of Ontario passed another Act, 37 Vict. c. 32., enti- tuled 'An Act to amend and con- soli(hite the law for the side of fermented and sjiirituous litpiors,' and thereby the said Act, 32 Vict. c. 32., and another Act, 32 Viet. c. 28., and also an Act, 36 Vict, c. 48., entituled ' An Act to amend the Acts resiiecting tavern and .shop licenses,' were wholly repealed, and new pro\isions were enacted ; but among such provisions there was nothing of the nature of the pro- visions which had been in sub-sec. 7 of sec. 6 of the repealed Act, 32 Vict. c. 32., but in lieu thereof pro- vision was made for regulating the issue of licenses for the sale of in- toxicating licpiors in each muni- cipality by an officer to be ap- pointed by the Lieutenant-Gover- nor, to be called • The Issuer of Licenses.' Now upon, and from and after tlie passing of this Act, the only authority, if there was any, which municipalities in the province of Ontario had, or could claim to have, to pass a bye-law in prohibition of the .^ale of intoxica- ting liquors, was in virtue of the provisions of the above recited Act of the legislature of the late pro- vince of Canada, 27 & 28 Vict, c. 18. of 1864, and of sec. 129 of the B. N. A. Act, which enacts — [reads it; see post^. It being, then, only in virtue of this Act, 27 & 28 Vict. c. 18., that mnniciiiali- ties in the province of Ontario possessed the power to pass bye- M i\ '■ i !! 1 : i' ■ '■ i- ' i ^i ! :! 178 B.N.A. ACT, 8. 92 (0) —DOM. LEGISLATION. Att.-Gi». ok Ontario v. Att.-Gkn. o» TUB Dominion, Prohibitory Liquor Laws. GWVNNE, J. laws in prohibition of the sale of intoxicatinn licniors, such iiower nui.st neccssiiriiy absolutely cease upon the repeal of that Act. But in 1878 the Dominion Parliament, regarding jjrohibition of the sale of intoxicating licjuors to Ik; a subject over which exclusive jurisdiction was conferred upon the Purliument, and in exercise of the right re- served to Parliament by said sec. 120 of the B. N. A. Act, passed the Canadian Temperance Act, 1878, whereby, as it is recited in the said 18th section of the On- tario Act, 53 Vict. c. 56., the above Act of 1864, 27 & 28 Vict. c. 18., was absolutely repealed save as re- gards localities where the Act had then alremly l)een acted upon, and power is conferred by the Act of 1878 upon all electors in every municipality in everj' jiroviuce of the Dominion, qualified and compe- tent to \ ote at the election of mem- bers of the House of Commons, upon certain conditions, and in adoption of the principle of local option, to prohibit the side of in- toxicating liquors in ever}- munici- pality adopting the provisions of the Act. This Act as an Act in prohibition has l)een held by the Judicial Committee of the Privy Council in England in Russell v. The Queen, and in this Coiu't in Fredericton v. The Queen, to have been within the jurisdiction of the Dominion Parliament, and not to have been within the jurisdiction of a provincial legislature. The object sought to be obtained by the said 18th section of the Ontario statute, 53 Vict. c. 56, would seem to be to re-open the question adju- dicated upon in those cases, and mainly upon the suggestion that sub-sec. 8 of sec. 82 of the B. N. A. Act was not considered by the Judicial Committee of the Privy Council, or by this Court, in those cases. In my opinion, there is no- thing in this sub-sec. 8, sec. 92, or in any [mrt of the B. N. A. Act, which calls for or justifies any qualification of the language of their Lordshijis of the Privy Couii- cil, as above cited from their jiidjr. ment in Russell v. The Qiiccii; and the principle established In that judgiui-nt is, in my opinion, that jurisdiction over the jiPdliilii. tion of the trade in intoxicatiii" liquors, whether it be in the iiiiiun. facture thereof, or in the importa- tion thereof, or tiie sale tluMvof, either by wholesale or retail, is not vested in the provincial legislatuivs, but is exclusively vested in tlie Dd. minion Parliament. If the [n- ,in- cial legislatures have jurisdictidii to prohibit absolutely the sale of intoxicating liquors, it must, I think, be aortation, and sale of any article of trade, and so, in fact, they would have that sovereign legislative jurisdiction over every trade, and over those general subjects in which the people of the contVdi- racy as a whole are interested, and thus the main object which tlif authors and founders of tiie con- federacy had in view in IVaiiiiii^' the terms and the pro\isions of our Constitution as to the distiilui- tion of legislative jurisdiction over the Dominion Parliament and tin legislatures of the provinces wouM lie defeated. In addition to tlu' ground ujion which their Lord- ships of the Privy Council pi" ceeded in Russell v. Tiie Quieii, this Court held, as already obser- ved, in Fredericton v. The Qhwd that exclusive jurisdiction over the prohibition of the sale of spirituous liquors, which was the subject- matter of legislation in the Cauada Temperance Act, 1878, was a sub- ject placed expressly under the exclusive jurisdiction of the Do- B.N. A. ACT, 8. 92 (9).— MARRIAGE, Ac. 179 minion Purliament bv sec. 91, siib- sec. 2, "f till' B. N. "a. Aft. TImt juilHiiii'iit Ims never been reversed, nor, in my opinion, simken, nnd wiiiii' it xtimd.s nnreversed l)V Ini- |it>rial Jiiitliority, I cDnsidei- tliis ('oiiit to be l)()iind by it. II' e\'er it sliould be reversed, it will, in my (ipiiiidu, be a mutter of deep ref^ret, lis (Ict'eiiting the plain intent of the traniorsof our Constitution andim- |K'riilin<; the suceess of the scheme (if cenfederation. I'^pon the whoU', then, ill answer to the several cpies- tions sulimitted to us, I am, for the icasous above stated, of the opinion that upon principle — that is to say, upon the true con.struetion of the B. X. A. Act apart from all aii- thoiity — and upon authority, that is to say, u])on the authority of the jiidjiment of the Privy Council in Ibissoll r. The Queen, apart from Fmlericton v. The Queen, and upon the authority of the judgment (if this Court in Fredericton r. The Queen, apart from Rus.sell v. The tiie Queen, several tpiestions sub- mitted to us must be all answered ill the negative." Sedgewiek, J. : " A studv of sec- tions 91 and 92 of the B". N. A. Act leads one to th«' conclusion tiiiit the following proposition may 1h' safely ado[)ted as a canon of cunstniction, namely, when a gen- iTtil subject is assigned to one iegislaliire, whether federal or pro- vineial, and a [larticiilur subject forming part or carved out of that SJenerul subject is assigned to the other legislatures, the exclusive right of legislation, in respect to the particular subject is with the liitter h'gislature. For example, Parliament has ' niprriage,' but the legislatures have the ' solemnization of marriage.' On that subject they are paramount and supreme. So, too, the legislatures have ' [jrojierty and civil rights,' words in them- selves as wide almost as the whole tieid of legislation ; but imrcelled out from that wir of particular and ^Iteeitie subjects where it likewise is paramount and supreme. Among Att.-Obn. oi' them is the • regulation of trade and Cntakio v. .■omnjeive.' So far, Parliament has i^^^^ZZ.. complete and e.vclusive jurisdiction ^1;.^., as to that. But we have to go fur- „ , •, ■. th((r. We have to turn again to [,i,.,ior Li,ws. .sec. 92, and wo find that shop, saloon, tavern, auctioneer, and other licenses, a subject carved out of ' trade and commen'e,' is given to the legislatures. If the principle above enunciated is sound, then Parliament can only regulate the liipior trade, or legislate in resiiect to it, subject to the paramount and controlling right of the local legis- latures in respect to liquor licenses for revenue purposes. The enu- meration and assigning of the par- ticular subject to the one ])ody over- rides and controls the other Inxly, although charged with the general subject, and that, too, without refer- ence to the question of subordina- tion or co-ordination Iwtween the two bodies. Another principle of eonstructionin regard totheB. N. A. Act must be stated, namely, it l)eing in effect a constitutional agreement or compact or treaty between three independent communities or com- SEnoEwicK.J., monwealths, each with its own jmr- ^°^ invHlidity. liamentarv institutions and govern- ments, effect must, as far as possibh', be given to the intention of these communities when entering into the compact to the words used as they understood them, and to the ob- jects they had in view when they asked the Imi)erial Parliament to pass the Act. In other words, it mu.st lie viewed from a Canailian standpoint. Although an Imperial Act, to interpret it correctly refer- ence may be had to the phrase- ology and nomenclature of precon- federation, Cana wide enoii<;ii to iiiclnde tlie liipior trallie is uniinestioned. Tlu> iniik- in<{ ol' li(|noi', its sale, that is a trade fir hnsincss; thedealinjis in it, the linyiiif; and .selling of it for pur- poses of protit, that is conunerci'. JJiit was this particular trade, the lifpior liiisincss, intended to he in- cluded in the general words ? That is the (|nestion. And, as I liiive already siiggestoil, the true answer is to he sought not so much from the rules of statutory construc- tion laid down in the text-hooks in regard to ordinary enactments, as hy reference to provincial statutes and jurisprudence at the tinu! of the I^nion, and to the circiuiistances under which that Union, as well as its ])urticular character, took shnix! and form. It was in IHG-l the Que- hcc Corventioii was held ; l^pper and Lower Canada, Novii Scotia, Ncnv Brunswick, Prince Edward Is- land, and Newfoundland, were repre- sented. TheQuehec re.solutionswere jiassed, and these resolutions hav- ing lieen ndojitcd hy the three legislatures of Canada, Nova Scotia, and New Uriniswick, formed the hasis of the Union Act, 1H67. The l^nion was a federal, not a legisla- tive l^nion. The English sjieak- iiig jirovinees (considering Uiiper Canada as a province) were in the main iu favour of a legislative Union, but Lower Canada, pro- perly tenacious of ' its language, its institutions, aud its laws,' secured as they had been by international treaty and Imperial enactment, desired a provincial legislature in onler to the perpetuity of these rights, rights which it was thought niii;lit heinvaded were they to he left to the mercy of a sovereign and untriiin. iiielled legislature, the large majoiitv of which would necessarily heloni; to the English-s|H'aking race. And .so the ipiestion was a federal Union or none at all. That being deciilnl, the <|iiestion of distribution of jiowers arose. To what powiiN shall the Federal Parliament sue- ceeil ? what powers shall the |ii'ii- vincial legislatures retain ? Tlu' American Civil War was just clns- ing, a conllict which, from a le^^al standpoint, had its origin in a ilis- piite as to the Constitution of tiii> United States, the (pu-stioii of Stiit(^ rights ; that controversy was not to be a ground ol . may ami must be had to [jfovincial statute law rather than to Im|)erial statute law, and that where, as in the pre- s(>nt case, the constitutional Att uses a phrase which for years had had a well-defiued meaning iu Cona- B.N. A. ACT, ». 92 (9).—" COMMERCIAL," WHAT ? 183 (lifin IcgLilntion, that i.s th(.' mean- ing which shonhl be given to it wlieu used in that Act. And I liavc this further observation to maice. The judgment referred to contains the following: 'If the words (trade and commerce) had Uen intended to have the full scoije of which, in their literal meaning, they are susceptible, the speiifif mention of several of the rither classes of subjects enume- rated in sec. 91 would have l)een unnecessary; as 15 banking, 17 weigiits and measures, 18 bills of ixeliange and promissory notes, 19 interest, and even 21 bank- niptcy and insolvency.' Now cir- cumstances existing in Canada, the tiien state of jurisprudence, tor example, rendered it wise, if not absolutely necessary, that the classes just referred to should l)e specifically mentioned. The pro- vinces had ' property and civil lights' given to them. In one phase or another almost every cnaetuient in some way affects pro- [lerty and civil rights ; the raison d'etre of constitutional society, the motif of the social coutiuct, is tlie protection of property and civil lights. Criminal law, fiscal law, commercial law, in fact, all law at some point or in some way, touches ir affects property and civil rights. Leave out several of the stibjects mentioned in sec. 92 and there would iiave been a perpetual con- flict between 'property and civil lights ' on the one hand, and many "f the enumerated sidijects of sec. 1)1 on the other ; so wisdom sug- gested ex abundanti caiitela what was done. " Besides, in Lower Canada there 'litd been a long course of juris- prudence as to what constituted ' a lommercial matter.' Some business transactions were held to lie com- iiiercial matters, others not. In a ilispute between an officer of the Britili Army and his wine mer- 'liant, a promissory note given for II wine bill was held to be a non- commercial matter. So, I suppose, interest on such a note would be Att.-Gen. of held to be non-commercial. Nor ^'niarjo v. would the case be altered if the ZZ'^^' ""* . 4 1 i u I ^"*' Dominion, note were discounted at a bank. ^-^. All these questions, and difficult ProbiMtorv and important many of them have Liquor Laws. been, were wisely ended, so far as sr,m ewick, J. the Constitution was concerne smuch, First there is * Direct ., j ' ■-] .i ■ 184 B.N. A. ACT, s. 92 (9).— A FALLACIOUS THEORY. t i'- 1 ! ATT.-CrEN. OF Ont.vkio V, Att.-Gkn. of THE Dominion, &c. Prohibitory Liquor Liiws. .Seugewick, J. il tiixiitioii within the province in order to the raising of a revenue for provincial purposes.' That in- volves the right of taxing, even unto (letith, institutions incorporated under Dominion law (as was decided by the Privy Council in Bank of Toronto v. Lanibe, 12 App. Cas. 575) [see ante, sub-sec. 2], .such in- stitutions obtaining corporate rights in all cases excepting banks, not bccan.se of any express powiu's given to Parliament, but either under 'trade and commerce' or under its general authority to legis- late in respect to ' jjcace, order, and good government,' it being clear that the legislatures may incorporate such companies us are formed for provincial objeetsonly [sub-sec. 11]. Secondly, there is sub-sec. 9. ' Sho[), saloon, tavern, auctioneer, and other licenses, in order to the raising of u n!\'enue for provincial, local, or municipal purposes.' The effect of this sub-sectiou is practically to give the regulation of the liquor traffic to the legislatures. vSo long as such regulating legislation has as its main object the raising of revenue, it may contain all po.ssible safeguards and restrictions as ancillary to the main object, the effect of Avhich may be to repress drunkenness and promote peace, order, and good government gene- rally. If, however, a fair examina- tion of an Act purporting to be of this kind leads inevitably to the coi elusion that the object of the legishitnre in passing it was not the raising of revenue and the licensing and regulating of the traffic for that i)urp()se, but the "'inuression of the traffic altogether, in other words, that it was intemleil to be not regulative but prohibitory, such an Act will find no support for its validity from this sub-section, — I will presently incpiire whether that support can be found else- where—and, a fortiori, the legis- latures umnot uiiiler this article pass an Act of absolute prohibition, for that woidd Ik; in direct conflict with the expressed object for which the power was solely given. The destruction of the traffic would en- tail the destruction of the revenue, not the raising of it. "Except for the decision of the Judicial Connnittee in Russell V. The Queen, 7 App. Cas. H2J) [see ante, p. 129] — the Scott Act cn.se — much might be said to favour the view that the right of the legis- latures to regulate the liquor traffic for revenue purpo.ses was unlimited, and could not be taken away hy virtue of anything in sec. 91, whether ' peac«', order, and gixxl govermnent,' or 'trade and coiii- meice,' or even 'the criminal law'; that the central Parliament could not by virtiie of any of its powers destroy a si)ecial power given to tlic local legislatin-es for a siH'cial and particular piu'pose, and that the Scott Act (Russell v. The Qneeu) itself was an infringement of the provincial rights. It might lie urged that neither body could of itself, by virtue of its given powers, pass a pi'ohibitory law, but that in- dependent legishition on the piirt of both would be neces.sary, the Dominion passing an Act prohibitinji; the traffic in so far only as it had right to prohibit it, but reserving to the provinces the fullest aud freest right under sid)-sec. 9 to raise revenue from it, and the provinces thereon passing legislation abro- gating the license system, and sur- rendering their right to revenue from it. The theory that if, under our Constittition, one body cannot pass an Act upon any given sulijeet the other necessarily can, is a fallacy. A subject may 1h' so com- posite in its character, may be formed of one or more elements as- signed to the one legislature, and of one or more elements assigned to the other, that neither one can effectually deal with the couihiim- tion. For example, neither h'gis- latme t-ould pass an Act abolishiuft the direct taxation for muuiciiwl [uuposes and authorizing the raising of re\ enue by nieiuis of octroi, or imposts, upon all goods coming iu § B.N.A. ACT, s. 92 (9).— PUBLIC MIND AT UNION. 185 through the city gtites, or iiii Act mithoriziiig a proviuee to raise aud t'oUei't its reveuue by iudireet taxa- tion, riiis disability is a necessary iucidi'iit of the feileral system, and, if it is to l)e got rid of, that can only b*! ctfected by abolishing the s\stcm itself. The \iew which has |iivsst'(l itself npou my mind is that prohibition may be a, (jnestion of tiiat character, but a.s it was not so held in llussell v. The Qufi'U, and as it does not subshm- tiiilly affect the result of this refer- eiicr, I take it for granted that the fullacy to which I ha\e referred is not an element in the [)resent case. The (luestion now arises : Is the general right of the Federal Parliament to legislatt! in regard to the liquor traffic further re- strained by sub-sec. 8 of sec. 92, 'municipal institutions in the pro- vince ' ? In other words, can a provincial legislature, by virtue of that sub-section, absolutely prohibit tile tratru! ? At the time of the Union, the province of Cana(hi had given to municipalities in both sections the right of pa.ssing bye- laws prohibiting the sale of litpior. In that province there was also then in force an Act known as the ' Uunkiii Act,' an enactment similar in scoik; and object to the present Canada Ti'mperance Act, the prin- ciiiie of local option being allowed til operat(! to its fullest extent. Hut ncitli'.T in Nova Scotia nor in New B:i):'s\ick (as I understand tlie facts) did local oi)tion i)revail. It is true that an a[)j)licant for license lii.d to comply with certain conditions, one of them, in Nova Scotia, Uuug that his aijplication liad to be accompanied by a [jctition liom a tixcd proportion of tlut rate- payers of the locality. To that ex- tent only did local ojjtion (if that is local option) exist. Such was then the state of the hiw; but some historical facts may also be nu-n- tioned as having rehition to the matter. The (piestion of prohibition liiul then for years been u vital liolitieul question iu the maritime Vtt.-Gen. op THE Dominion, &c. Prohibitory Liquor Laws. provinces ; the [mblic mind had Att.-Gen. op been in a perpetual state of turmoil Ontauio v. 1 • rill 11 ■»'»"»'-*»«'" about It. 1 he ablest statesmen oi the time had been in public anta- gonism over it. Elections had been won and lost upon it. For two suc- cessive years prohil)itory legislation .Seboewick J had been introduced in the Nova Scotia Legislature, and a Bill of that character was on one occasion suc- cessfully carried through the Lower House. In New Brunswick a prohibitory law had actually passed, and remaiueil in oi>eration for a year. It was then repealed, with a ri'ver- sion to license law. Such, then, was the attitude of the public mintl in two of the three confederating i)ro- vinces at the time of the Union, What meaning, then, is to be given to 'municipal institutions in the pro- vince ' ? Three answers may be advanced. First, it may mean that a legislature has power to dix'ide its territory into defined areas, con- stitute the inhabitants a municipal corporation or community, give to the governing bodies of officers of such corporations or connnunities all such i)owers as are inherently incident to or essentially necessary for their existence, growth, and de- velo[)ment, and confer upon them as well all such anthority and jurisdiction as it may lawfidly do under any of the enumerated sub- sections of sec. 92. That is the narrowest view. Or, secondly, it may mean that a legislature may also confer upon municii)alities, in addition to these powers, all (hose powers that were possessed orenjoycd in common by the municipalities or municipal comnumities of all the confederated [)roviuces at the time of the Union, the Jus (/entiidu of Canadian municipal law ; or, finally, it may mean that a legisla- ture may confer upon munici[)alitii's all those powers which in any province, or in any i)lace in a pro- vince, any municipality at the time of the L^nion, as a nuitter of fact, possessed by virtue of U'gislative or other authority. And the argument iu the present case is, that because •^ , ' Wf J I ! N 186 B.N.A. ACT, s. 92 (9).— SPECIAL PROVISIONS. Att.'Gen. of Ontario v. Att.-Gen. or TUB Dominion, Prohiliitory Liquor I*iw.s. Skdoewick, J. at the tiiui- of tlu^ Union one of the three provinces had given the right of local prohibition to muni- cii)alities, it must be assumed that the franiers of the Act, and all the provincial legi^iliitiires as well as the Imperial Parliament itself, must have intended by the use of the phrase ' inunicii)al institutions ' to give to the local legislatures the right to pass prohibitory K'gisla- tion, and that, too, without refer- ence to municipalities at all. I dis- sent from this wide proposition. The first view, in my judgment, is the i)roper one, a view which gives scojH' for libi-ral inter[)reta- tion as to what may constitute tlie essence of the municipal system, and give due effect in that direction to the municipal Jits f/ciitiiiiii of the three old provinces ; and I entertain the strongest doubt if it ever was contemplated, by the use of the words ' muni<'ii)al insti- tutions,' to mak(> any particidar reference to the licpior traflic at all. The following considerations point, I think, in that dire«'tion. " (ft) The question of licpiortrallic was dealt with,anr were of the less moment. In the Municipal Act of Upppr Canada (1866), at p. 583, tliero is a sub-tith', ' Shop and tavern licenses,' and in the same section, and on the .same page, tlu're is another sub-t'lle, 'Prohiliited .sale of .spirituous liquors.' May it not be projK'rly suggested that this particular subject was designedly omitted ? " (f) Considering that the ques- tion of prohibition was a vital social and political question (nnn the pre- siiit case may be questioned. It was there decided that the Ontario Legislature, having under *pro- |Krty au expression of the control- ling legislative will ? In my view, the provincial legislatures do not l)ossess the right to piohibit the liquor traffic. deferring now to the si)ecific questions .set out in the reference, I have but few obser- vations to make. I cannot, in the absence of a specific enactment on the subject, recognise any distinc- tion from a constitutional point of \ iew between the selling of liquor and its manufacture or inq)ortation. If it is admitted that a provincial legislature under 'nuniicii)al in.sti- tutions ' has power to absolutely prohibit the .selling of liquor, it nnist have incidentally the right of prohibiting the having of it, and, as incidental to that right, the right as well of making or im- porting it. Neither can I, in the ab.senee of a specific enactment on the subject, recognise any consti- tutional distinction between .sale by wholeside and sale by retail, notwithstanding the case of Slavin I'. Orillia; that, apparently, was sub- .sequently concededwiththefull con- currence and approval of the Privy Council in 'the Dominion Licpior License Act ca.sc ' (the case on the McCarthy Act). In the light of which particular provincial candle are we to investigate the question ? In Upper Canada a sale of liquor to the extent of five gallons, or one dozen )ottles, was considered a whole.sjil '■ transaction, the question as to the origin of the package Iwing of vital moment, but the capacity of each bottle immaterial. In Lower Canada there was no question an to ' original packages, Att.-Gen. ok ONTAnio V. Att.-Gen. of the dominio!*, &c. ri'ohibitory Liquor Law.s. Sedqewick, J. i,; : - m 'i ■. I? f- t J^ \\l H! i! ih' 1 190 B.N. A. ACT, ,«. 92 (n).-WHIM OF THE PUBLIC. ih I ' At'J.-Qen. of Ontario i'. . Att.-Oen. ok TUB Dominion, &c. Prohibitory Liquor Laws. Kino, J., for invalidity. but it was doiil)tleMs the cn.se that a .sule of three f^allons or upwards wa.s ' wliolcsale,' the cliaracter of a sale between three {gallons and three half-i)ints being left doubt- ful. In No\a Scotia tlie line was api)arently drawn at ten gal- lons, but inasmuch as ' slioj) ' li- censes could not sell in quanti'ies less than one gallon, and as the distinction between ' wholesale ' and 'retJtir did not there receive express statutory recognition, it is h'ft an open (piestion whether the constitutional line between whole- sale and retail was of one gallon or ten. In New Brunswick the niininium amount that a wholesale license might sell was one jant. Now, in view c*" this diverse legis- lation in tlie .several provinces, the five gallons of Ontario, the three gallons of Quel)ec, the ten gallons of Nova Scotia, and the pint of New Brunswick, how can this Court arbitrarily define the line or fix the limit between a whole.sjde and a retail tran.saction ? How can we, in the exercise of judicial oflice, determine the de- limitating boundary? The Con- stitutional Act, in my view, im- l)oses npon us no such duty. It does not give colour even to the idea that the right of legislation in either body is to be determined by such questions as quantity or (jua- lity ; and, in my view, no such distinction exists. Neither, in my view, is there any distinction be- tween those places in Canada wlierc! the Canada Temperance Act has iH'en put in force, as the phrase is, and those places where it has not. The whole Act is an Act api)licable to all Canada. Cer- tain cities or nuinicii)alities may take advantage of it.s provisions to .secure the kind of prohibition therein contemplated, but it is a law providing for prohibition every- where. To admit the right of a U^gislature to enact a law for the same purpose applicable only to localities that have failed to place themselves under Canadian prohi- bition, is to make the constitutiouul authority of a legislature dependent on the whim or fancy for the time being of tlie public .sentiment, u principle in support of which 1 can find neither authority or rea- son. For th(' reasons stated, I think the seventh question must be answered in the negative, and, in my judgment, an affirnuitive an- swer can be given to none." King, J. : " Upon this continent there are two methods of dealing with the liquor traifie, namely, Ijy licence, and by prohibition. The latter may be general, or exercised through what is called local option. The licensing system is one of re- gidation, with only so much of suj)pression as is ini.'idental to re- gulation. Prohibition has sup- pression as its primary and distinct object. No one is likely to con- fu.se the two things. The licensing .system is exclusively within pro- vincial powers. All that is fairly incident to its effectual working goes with it as a branch of local l>olice power. In Hodge v. the Queen their Lordships, after sum- marising the clauses of the Ontario License Act then in question, sjiy of them — [reads sentence com- mencing " Theis** seem " down to "B. N. A. Act, 1867," ante, J). 141]. The Dominion Parliii- ment having in 1883 passed a general Licensing Act applicable to the entire country, this, with an amending Act of 1884, was held ultra rires ujmju a refereiu'c of the subject to the Judicial Committee of the Privy Council. Then, with re- gard to prohibition, the Cana adopted. These clanses prohibit (with some exceptions not material to l)e now stated) the sale of intoxicating ml MM if- I.N.A. ACT, s. 92 (9).— HODGE RE-AFFIRMED. 191 liquors entirely. When loeuUy adopted they continue in opera- tion for three yeiirs, and thereafter until withdrawn upon like vote. On the otiier hand, a vote adverse to local atioption l)ars the subjeet for a like period. In The City of Frediricton v. The Queen the Act wiis held valid chiefly as relating to trade and conunerce. In Russell V. The Queen it was sus- tained on other grounds. Their Lortlships, approaching the subject from th(! side of provincial powers, lu'ld that the provisions of the Act (lid not fall within any of the classes of subjects assigned ex- clusively to the provincial legisla- tures. It was therefore, in their opinion, at least within the general uneniunerated and residual powers of the general Parliament to make laws for the peace, order, and good government of Canada in re- lation to all matters not coming within the classes of subjects as- signed exclusively to the provincial Icgislatiu'es. It was not doubted, say their Lordships in Hodge r. The Queen, referring to their de- cision in Russell v. The Queen, 'that the Dominion Parliament had such authority tmder sec. 91, unless the subject fell within some one or more of the classes of sub- jects which by sec. 92 were as- signed exclusively to the legisla- tures of the provinces.' Referring to the grounds of decision in City of Fredericton v. The Queen, their Lordships, who had shortly before, iu Citizens' Insurance Co. v. Par- sons, 7 App. Cas. 96 [see Note, sub-sec. 2], referred to the words 'trade and commerce' in a way that is sometimqs sought to be put in opjiositioni to the views of this Court in The City of Fre- dericton V. The Queen, say, ' We must not be understood as in- timating any dissent from the opinion of the Chief Justice (Ritchie) of the Supreme Court of Canada and the other judges who held that the Act fell within that section.' In treating of the TMK Dominion,'' lVc. I'roliiliitory KlNU, J. exclusive powers of the provincial Att.-Gbh, of legislatures, sub-.sec. 8 of sec. 92, O"'*"*",'" "• , ' ..•#•• Att (jtEN of respectnig nuuiunpal institutions, was not iu terms referred to in llussell V. The Queen, and this fact has sometimes been made use l,i(|uor i^jiw of in the way of criticism of that case. Indeed, in the argument of the Dominion Licen.se Act, one of th(ur Lordships expressed the opi- nion that clause 8 of sec. 92 hiul not been argued in Russell v. The Queen, but the counsel then argu- ing [the present Lord Chancelloi-, Lord Herschell, see ante, p. 157], stated that it appeared from a shorthand note of the argument that the point had l)een distinctly argued. When City of Fredericton I'. The Queen (which is known to be substantially the same case) was before this Court the point was argued. Lash, Q.C., one of the counsel for the Act, thus alludes to the argument as adduced 'oy the other sitle : ' It is also contended that this law, having for its object the suppression of drunkenness, is a police regulation, and so within the powers of municipalities,' &c. In Reg. V. Justices of Kings, 2 Pugs. 535, Ritchie, C.J., had pre viously dealt with the like conten- tion, and iu City of Fredericton v. The Queen adhered to that decision. To that case I beg to refer. But what is more pertinent is the fact that after sub-sec. 8 of .sec. 92 had been fully considered and given effect to in Hodge v. The Queen, their Lordship.*, as though it might be thought to make a difference with Ru.s.sell v. The Queen, took occasion to re-allinu that decision : ' W: Jo not intend to \ ary or de- part from the reasons expressed for our judgment iu that case.' Now it is important to note that the substantial thing effected by the Canada Temperance Act is the suppression of the liquor trade in municipalities severally by a sepa- rate vote of each. What is effected is local prohibition in all its local aspects. It could not have been really meant by their Lordships H SI If ili ;li:i ! m i I ill Att.-Okn, of Ontabio r. Att.-Okn. ok TiiE Dominion, I'ri)liil)itory Liciuor Liiwy, KiNd, .1, r! i t i i I: 102 n.N.A. ACT, 8. 92 (0).— DOMINION OVERHIDES. that this was ontsiilc of tho cliisacs of snhjcclH I»y sec. 92 assigned to the |)roviiiciiil legislatures simply l>y reason of tlie Act having operated as a local option Act tlirongliont Canada, while a pro- vincial Act is necessarily liinitcd to the province ; that would in- deed have been a short road to a conclusion, but it would have con- fused tlie l)oundaries of every sub- ject of legislation, besides render- ing unnecessary th(i particular provisions of the B. N. A. Act [sec. 95] respecting concurrent legislation on certain specilicd sub- jects. This was recognised in the decision uiwn the Dominion Li- cense Act, wlieie it was held that wliore a subject, such as the licens- ing system, is within a chvss of subjects assigned exchisively to the provinces, the Dominion does not, by legislative provisions re- specting it applicable to the entire Dominion, draw it at all within their ])roi)er .sphere of legislation. But it is argued that prohibition may in one aspect, and for one purpose, fall within sec. 91, and for an- other jmrpose and in another aspect fall within sec. 92. And inasmuch as it is not possibles for general words to enter into the complexities of transjictions, and distinguish entirely one subject i'lom another in all its relations, the cases clearly establish that legislative provisions may l)e with- in one or other of these sections, according as, in one aspect or another, they may be incidenfad to the effectual exercise of the de- lined powers of Parliament or legislature. In the effectual ex- ercise of an enumerated power it may Ije reasonably neces.sary to deal with a matter which, apart from its connection with such sub- ject, would a[)pear to fall within a class of subjects within the exclu- sive authority of the other legisla- ture, and in such case there is the ancillary power of dealing with such subject for such purpose, a.s explained and illustrated in Att.- Gen. of Ontario v. Att.-Qcn. of Canada, [IH04] A. C. 200. In the application of this princijile the Dominion L(!gislature over- rides wliero the same subject is (h'alt witli through ancillary powers, and j)ending the existence of Do- minion legislation, the provisionul legislation, if previou.sly passed, is in abeyance. If subsequently pass- ed it is ultra vires. In all such ca.ses regard is to be had to the primary purpose and object of tho legislation, and (except in the few cases where concurrent legislation is authorized, of which tliis is not one) the primary object is to he obtained through one of the legis- lative authorities, and not indiffiT- ently through either. Now, prohi- bitory Acts are very simple in their aim. Those who favour them may !)e influenced by varied motives, although probably these vary but little, but the direct, well-under- stood, and plain purpo.se is the suppression of the licpior trade. This is accustomed to be effected, not incidentally in the effectual carrying out of some larger [M-oject of legisla- tion, or as ancillary to something else, but as a princi})al political ob- ject itself. If this power exist in the provinces, it mu.st be found either in the enumeration of .sec. 92, or in what is reasonably and practically neces.sary for the efficient exercise of such enumerated powers (sub- ject to the provisions of .sec. 91), otherwise it can in no aspect Ix" within the sphere of provincial legislation. The grower in ques- tion is not an enumerated one. On the contrary, what indirect re- ference there is to the liquor traffic is made in connection witli the license system, and licensing does not import suppression, ex- cept, at most, as incidental and sub- ordinate to it. Then is the power to prohibit reasonably or prac- tically necessary to the efficient exercise by the province of an enumerated power? It is urged that this is so with regard to sub- sec. 8 respecting municipal insti- m B.N. A. ACT, .s. 02 (0).— SUPPRESSION OF A TRADE. 193 liilioiiH. The lircnsinf; systom is nnliniirilv assoi'iiilt'il witli fliat siib- ji'il, iiiiii lii'ciisiiif^ i.s iilso pointed III in siilt-sce. !), I»iit tlicrc in no in- lii'ii'iit or onliimry iis.sociation of |ir(iiiilii.'''ii with nniiii<'i|)al institu- limis. Nfitlicr in Enj^iaud nor the Uiiiti'il Stales is lliis .so. The siiilc oMiiinf,'s in the eont'ederatetl IHOvinccs at the time of the Union will Ik' referred to hereafter. What. is rcnsonaiily incidental to the ex- ercise (if <;enei'al powers is often ii iiriutical (|uestion nion^ or less tle- |ieniii'iit npon considerations of e.vpedieiiey. The .several jiidj^- iiu'iits of tlie Privy Conneil have plaeeil the respective powers of the Doininiiin and provinces npon the subjwt on a wise and practical woikiiif; liasis ; allirniin^ on the one iiiuul the excln.sive ri}i;ht of the lirnvinces to deal with license and kinilreil subject."*, and aflirming on llie other hand the right of the Doniinioii to jirohihit, either directly (ir tiirougli tlie method of endow- iiii; tilt' .s(!veral provincial mnnici- palities with a facnlty of accepting prohibition or retaining license. Wherein is it reasonably necessnry for purposes of municipal in.stitu- tions that the provinoos should liiivo like power of suppression, to he exereised eitlier directly upon the entire province, or, through the iH'stowuient of a like faculty, upon the municipalities ? Why (in any j ]iro[)er eoiistitution) .'should a cou- Lsidcrable trade be subject to pro- hiliition emanating from different I l('i;islative authorities in the one 1 touiitry ? The supi)ression of a I lawful trade impair.s the value of I till' [lower to rai.se revenue by in- jdirpct taxation. Primd facie, the Ipowcr which levies indire(!t taxa- Ition has the power to protect trade Ifrom sujipression, and the sole rjower of suppression. And in a leystom of government where the Iprnvinces receive annual subsidies out of the Dominion Treasury, it »'('ms repugnant that the provinces phoulil, tlirough mere implications, es|)eeting municipal institutions S 2340. possess the jtower to destroy large reveniie-liearing trade for the Dominion to determine for roy a It is Att.-Oiw. or Ontario v. Att.-Oen. ok TMB Dominion, it.>ielf whether or not such a trade &c. shall be .•,uppressed, and if .so, how, Prohibitory and to what extent. The Dominion Liquor Laws, has so expres.'sed itself. It has King J. entered every municipality, an''" '•"'>'» iu qui'stion and the bye-iaw as.sa-'^l by the a|)pellant are intrn vires. As said in The Queen v. Taylor, 10 March 1875, 3(5 U. C. Q. B. 183, 1). 212, by Wilsmi, J., whose langiuige I cannot do better than boirow : ' The act of the Ontario Legislature in imposing a tax for a license on .shopkeepers and tavern-keepers, and others of the like cla.ss, for .selling by retail, or for continuing the power to municipalities to prohibit the retail of spirituous liquors, is not in excess of the provincial jtower, although I conceivi' it to be [lartly a regulation of trade and conunerce, because before and at the time of the confederation of the provinces the; different numici- j)alities in this province po.s.sessed that power and privilege, and it was not taken away or qualified in any way by the Coid'ccU'ration Act. 'I'hat Act, too, was in fact pas.sed, and must be presumed to have been passed, by the rnq)erial Go- vernment with a fidl knowledge at the time of the sh\to of our law, which was affected by the Lnperial Act, then under consideration, and, among other matters, that part of our law which related and relates to municii)al instittitions, as they existed at that time, becau.se over ' Municipal institutions in the province ' exclusive power was then conferred by it upon the pro- vincial legislature. . . And I am of N 2 HcsoN ('. Tub TowNsaiH 01' HoDTa Nonwicii. TASCUBREAr, J. for validity. • f\ m 196 B.N.A. ACT, s. 92 (9).— UNFETTERED BY DECISION. HusoN V. The Township op Sooth Norwich. TA8CIIEnE.\U, J. mk ri I 5 opinion tlie rififht to regulate the .sale of .>«iieh liquors by retail, and also the entire prohibition of their sale iu any inunicipality, relates to a matter of a merely loeal or jH'ivate natiu'e in the provinee. . . It partakes largely of a police re- gulation.' These remarks of Wil- son, J., are in no way affeeted by the deeision of this Court in Severn r. The Queen, 2 S. C. R. 70, where that ease of The Queen v. Taylor was under review. A \aluable opinion by Richards, C.J., in the sense of Mr. Justice Wilson's aforesaiil remarks, is to be found in lie Slavin v. Corporation of Orillia, 36 IT. C. Q. B. 159 ; and later in this Court, in Suite v. Corporation of Three Rivers, 11 S. C. R. 25, p. 43, Gwynne, J., said : ' I cannot doubt that by item No. 8 of .sec. 92, which vests in the provincial legislatures the exclusive power of making laws in relation to municipal institutions, the authors of the .scheme of con- federation had in view muni- cipal institutions ivs tliey had al- ready been organized in some of these provinces, and that the term as used in the IJ. N. A. Act, unless there Ik? some provision to the contniry in sec. 91 of the Act, comprehends the powers with which nmnicipal in.stitutions, as consti- tuted by Acts then in force iu the resju'ctive provinces, were al- ready invested for regulating the trailic in intoxicating li in that any incon- sistency with the power of the pro- vince to i)ass it as long as the Act of 1878 is not acted upon, and re- vive it when the other one ceases to oi)erate where it has been put in operation. The Federal Act can- not at all be considered as legisla- tion over the powers of the munici- palities. It does not purport to be pnything of the kind. It has no connection whatever, and could have none with the municipal ,'*ystem of the different provinces. It is controlled altogether by a majority of federal electors, Init that, it is obvious, may not be at all the majority of municipal electors III BJf.A ACT, 8. 92 (9).— CLAIM LIMITED tc OWN PROV. 199 ill II mnnicipiility, when that is re- quired as in the province of Quebec, mill, in fact, cannot be under the statutes at present in force in some (if tlie provinces, whereby women, I'lir instance, are entitled to vote at municipal, but not at federal elec- tions. Likewise for the provincial doctors, where, as in Ontario, these lut-laws under the provincial Act (lq)oiiil on tiieir votes. The majority (if them nuiy not l)e at all a majority (if federal electors, or rice versa. Aiul the respondents, I assume, would not liave any objection to Mibmit to the Temperance Act of 1878, if itwa'; put into force in the county of which they form pirt. All that they chiim is home rule, the light to ])iit a stop to drinking and to taverns within their own territorial limits. Even if the rest of the pro- vince, or all the other municipalities of their own county, choo.se to ilo otherwise for their own jMiople, tiiey should be as free to do so now iis they were bisforo coufedcmtion, tluiugh tlie provinces of British I'olunibia, Prince Edward Island, (Quebec, or all of them, and all the other mnnicipalities of Ontario, may tiivour within their territorial limits II different policy. Whenever the Federal Parliament prohibits en- tirelv the liipior traffic in the Do- minion, assuming always for the |iin|)o, municipal system in f^eneral, is t'xclusive. The Federal Parliament cannot in any way touch them. On the appellant's contention that such a prohibition by the municipalities is a icyu- lation of trade and commerce, and therefor*' ultra t'ircs of the pro- vincial legislature, I need not dwell. It is settled that these words, 'regulation of trade and commerce,' in the British North Auu'rica Act, do not bear the wide construction that the appellant would hero con- tend for." Citizens' In.snranc(f Co. v. Par- Hon.s, 7 App. Cas, 90. Hodge '.. Thii Queen, 9 App. Cfus. 90. Bar'K of Toronto v. Lauibe, 12 App. Cas. 575. Bennett v. The Pharmaceutical Assoc, of Quebec, I. Dor. Q. B. .330. Pillow r. Thu Citv of Montreal, 27L. C. .1. 210; 3t)L. C. .lur. I. " It was likewi.se held by the United States Siiprt'iiie Court, in Coolev r. 'i'he Board of War- dens, 53 S. C. U. S. (12 Howard) 319, that ii State law, estab- lishing ceitiiin pilotnge regula- tions conceded to be regulations of commerce, was valid until su|)er- sedeil by the fedend legislative power. And, as said by Field, J., in Sherlock r. Ailing, 9'3 S. C. V. S. 99, ' Legislation in a great \ariety of ways may affect commerce an[ spirituous litpiors within the eouiily. And by see. 11 the local councils were authorized to pass such a bve-law for their own niuniei|»alities whene\er the county council had allowed the montli of March to expire without having pas.'ied one for the county. In 1800, by 23 Viet. c. 01., the municipal Act was consolidateil, but the above pi'ovisions (if the statute of 1850 were h'ft intiict. Also in the Cunsoli(hiled Statutes of 1801, e. 24., these enactments are re- enacted without any alterations, us see. 20, suli-.secs. 10 and 11, sec. 27, sub-sec. 16, resiK'ctively. The H > ]'? ■f'l ; ^'^ii 202 B.N.A. ACT, R. 92 (9).— MUNICIPAL LIQUOR LAWS. HnsoN V. Tub Township op South Norwich. Tabciiereau, J. terms are unequivocal. ' Every municipal county (or local) council may Hiak(! l>yc-laws tor proliiltitin^r and |»revcntiii^ (to prevent or i)ro- liibit) the sale of anv spirituou.s liquors.' In IHOC. (29 & 30 Vict, c. 32. ), sul)-sec. 16 ol' sec. 27 of the Con.solidated Municipal Act of 1801, c. 21. above referred to, was repealed and rcfilaced by a i)ro- visior giving to local councils, l)efore the .second Wednesday of March of each }ear, the i)ower to prohibit the .sale of any spirituou.s liquors. This Act, piis.scd only two years tifter the Temperance Act of 1HG4, mu.st be taken as another imeciuivocal declaration of the legishtture of the late [a-ovince of Canada that the power of the nuinicipal authorities had not been, in any way, diminished or restricted by the said Temperance Act, and , that these powers were not incon- sistent with or repugnant to tho.se conferred by the said Act. " Such was, in the province of Quebec, the state of the .'Statutory law on the subject at confedera- tion. I need hardly siy that it Jesuits clearly from it, whalc\er its consequences nuiy be on the ques- tion now under consideration, that the whole .system of legislative supervision over the litpior trallic was so closely identified with the municipal .system of the province, and .so blended witli it, that they formed only one. The ' constitu- tional connection ' betwet'ii the two, to u.seMr. Justice liurton's expres- sion, was eomi)lete. Atitl up to the present day the two are so worked and pnt in ojieration as one that every year, in a laige number of the municipalities, the only, or at least the principal, question at the election for councillors is ])rohibi- tiou or no prohibition. Tliis is a mutter of public notoriety in the province. Now, not long after the coming into force of the B. N. A. Act, the Quebec Legishiture, in 1S7C^ enacted a Municipal CotU-, and, in continuance of the policy that }:awl theretofore prevailed in the province of treating the control over the liquor traffic as a part of the nninicipal institutions, and lea\ing it to be as theretofore a marked feature of the power vested in the municipal authorities, it con- ferred iq)on each local council, hy sec. 501 thereof, the power to ]iro- hiliit, and this, by extension of tlip power, 'at any time' diu'ing the municipal year the retail side of in- t'Jiieating licpiors. " And tliat enactment, with slight amendments (art. 0118, 11. S. of 1888), has remained in force up to the present day unchallenged by the federal authority, and has betn acted upon through the province in a number of municipalities. And at this very moment then' are no less than 158 localities in the pro- vince, as I gather from i,.Iieiid somri's, where the retail sale of liquors is entirely i)rohibited luidcr that .statute. That has been in the province theaverag*! yearly number of such bye-laws since 1807. And, as in Ontario, I may remark, the enforcement of all such regulations, restrictions, and prohibitions is per- formed by the police force of the locality wh«Te such force exists, and forms a part of tlu; policeduties, umU'r thecontrolof thepolicecourts andpoliceconnnissioner. In fact, in many of the rural municipalities, the only annual |)olice regulatioii is a prohibitory bye-law. If the appellant's contentions were to |>revail, all this legislation, all these hundreds of bye-laws pa.xsed every year since 1807, were, and are, each and every one of them, perfect nullities, not worth the paper they were written on. Tiie Leghslature of Quebec, besides the statutes I lia\e referred to, has since the Municipal Code, and after the passing of the Feileral Tem- perance Act, re-enacte(', in lfH, as law enforced in th«! province, the Temperance Act o'. 1801, hy art. 1095 of the II. S., which reads as follows : — " ' The municipal council of every city, town, township, parish, B.N. A. ACT, s. 92 (9).— CONSTITUTNLTY. & OLD ACTS. 203 or incoriwnited village, shall liavo ilie power, under the authority and for the enforcement of this seetion, ami snhjeet to the provisions and limitation.s, at any time, to pass a liyc-law prohibiting the .sde oi' iiitoxieating liquors, without sub- mitting it to the eleetors.' The Legislatin-eof Ontario, in 1887, by the R. S., likewise considered the Temperance Act of 18(M as still in force within that province. "Now, what is the jurisprudence on the question in the province of Qiicliee ? I will refer, of coin-se, only to the Court of Api)cid. I fiml oidy two cases in that court on the (picstion, but they are l)oth « exi)rcss anil dear that, unre- versed as they stand, they settle, iH'vond doubt, the jurisprudence as far as the province goes. "In Suite r. The Corporation of Three llivers [1882], 5 Legid News, 331 ; 2 Cartwright 280 [in 11 S. C. 11. 25], the Court of Appeal in Montreal nuaniiuously held that, at the time of confedera- tion, the right to prohibit the sale of intoxicalingli(piorswasi»os.se,xsedl>y tile municipal authorities, and con- sequently is to be deemed included in tile powers vested in the provin- eiiil legislatures, under the wonls 'provincial institutions' of sub-sec. .Ssee.!)2 of the 13. N. A. Act, and this in no e(iuivocal terms. ' VVe hold, liien,' said IJani.say, J., for the (-'oiirt, 'that the right to pass a prohiliitory litpior hiw for the imr- lK)ses of municipal institutions has lieeu reserved to the local legisla- tures by the B. N. A. Act.' T'hat ease was airnincd in this Court, 11 S. C. K. 25, though not upon the ;troinul taken by the Montreal t'ourt of Appeal; the point was not •lealt with one way oi another. In lfr()vineial legislature, and that a bye-law passed luiderthe provisions to prohibit such traffic is in all respects legal and binding. It is im]iossible to get two decisions more directly in point. This Court has never had occasion to pass a juilgment on the (pieslion, but in the ease of Bergeron v. Lassalle, Cas. Dig. 2 ed. 495, it nuiy not l)e amiss to remark the power of the Legislature of Quebec to pro- hibit the sjile of li(piors in Three Bivers and other cities of that class, relied upon by the responcU'iit, was not questioned either at bar or on the bench, and the court gave due effect to such a [)rohibition. "The a[)peal should, in my opinion, be tli.smissed with costs. 1 have only to add that, in my view of the ca.se, the ap|M'al must fail, even if the appellant's conten- tions as to the unconstitntionaiity of the Ontario legislation in tlm matter wimc to prevail. For, if th(^ province of Ontario luul not the povvi'r to re-enact the sections in (piestion of the Municipal Act, it cannot have had the power to repeal them e.vpressly or impliedly ; and, consequently, they are now in force as they stood at confederation in the ISIunieipal Act of 18UG. '* No reasons to (|uash the bye- law of the municipality-respondi'ut, as Inung against the provisions of the sliitute as it then was, have been assigned by the api)ellant. As I conclude this opinion, I am in- formed by the Begistrar that the reference to this Court, which will probably involve the (luestion in issue in this case, has been ordered by the federal authorities. I think, however, that the parties here should not be prejiuliced by this action of the federal power, and that they are entitled to a judgment on the ca.se submitted to us." Gwyune, J. : " After the argu- ment of this case, upon the tirst of >> Kl r 1 t! ^11 I ' n i ; HDBON v. Till! Town 811 1 r op Sooth Norwich. QWYMNB, J. 3 M* The ConroRA- TioH OF Hunt- ingdon V. MoiR. 204 B.N.A. ACT, s. 92 (5)).— INCIDNTS. to MUNICIPALITIES. U llic (pioviioiis iiiv(il\«'l>()lli Oct. IHSK'i, in llic iiiiitlt'i- (if |)i'(ilii1iili(in of tlic trade in int()\ieatin<; Ii(|ii(ii's under tlie itrovisions ol' tiie statute in that lieliali', vliieii <|iiestiiins fontaiii one wliieli raised the pre- cise point in issue in tliis ease, and in eonseqiienee all t'liitlier net ion ill this ease \vas delerred until the lu'iiriiif; and ar<;uiiieiil oi' the (|ues- tioiis siiliiiiitted liy the Order in Coiineil. The ar^uiiieiit, there- fore, ii[ion the (|Uesli(in so siili- iiiitted eonstitiited in ell'eet, in my opinion, u reeonsideralioii, and, as it were, a relieariiij; of tlie (piestions involved in this ease. 1 haM' (Al- tered fully, in my judfjinent on the (piestions so siihmitted, into my reasons for my eonelusions ti]i(»ii the said ipiestions, which include lliiit in this case, which judgment contains the only jiidgnient J have to deliver upon every one of the questions llieiein involvi'd, namely, that they all iini.st he answered in the negative [xcc aiwrc]." Apjienl dismis.sed with costs. Thk Coui'ohation oi' Hunt- ingdon V. Moii{, 21 March IHOl, 7 Mon. Q. B. 281, was nn ap- peal from a judgment of the Cir- cuit Court (Belanger, J.), dated 2G May 1890, which held n/tra vires, and (piashed, a bye-law of the Corporation of Huntingdon pro- liihitiiig the sah' of less than two gallons of intoxicating liquors at one and the same tiiiie. This live- law was passed by virtue of Article 561 of the Muiiici])al Code as amended by 51 & 52 Viet, c 29. s. 6, K. S. Quebec, GllH. Tht^ Corporation appealed. The Quebec Municiiml Code of 21 Dec. 1870, M Vict. c. G8., by Article 525, gave jiowi'r to every local council to make, anicnd, or rejieal bye-laws for each of the objects mentioned in that chapter (sub-ch. 1), and Article 501 was " To prohibit tliesaleof intoxicating liquors in quantities le.«s than tliree gallons, or one dozen botthsofat least three half-pints each, at (uic and the same time, and the grant- ing of licenses therefor, within |||(< limitsof the municipalityand on tlic ferries which are dependencies of such municipality." 'I'liis Aiticlc was, 12 duly 1888. altered by 51 & 52 Viet, c! 2!>. s. 0., by deleting the words " three gallons, or it dozen bottles of at least three luilf- piiils each," and reading lliercror "two gallons imperial iiieasiire, or one dozen bottles of not less I ban one pint each imperial measure." See B. S. Quebec, 1888, s. 0118. Tlio Court [Dorion, V.J., Uaby, Bosst', Doherty, and Ciiiion, .IJ.] allowed the appeal. Doherty, J., said; " The right of the provincial legislii- ture to pass prohibitory litpior laws exi.sts as incidental to munieipnl in.stitiitions." The local legi.slatiiro had authority to enact Article 5G1 of the Municipal Code, and tlic CoriKiration of Huntingdon liiid the right to pa.ss the bye-law in (lue.stion. It was not neces.sary to enter into u h-ngthy examination of the case, as the (jiH'.stion liad lueii settled by the highest couils Judgment of tin- court lielow, which quashed the bye-law, was reversed, and appeal allowed. The order of the Court was: "Considering that Article 501 of the Municipal Code and the matters thereby provided for are within the comjieteney nnd powers of the legislature of this jirovince, and not ultra vires there- of, as in this cause pretended iind pleaded by the respondent, by Ids petition ill this ln'half produced; and considering therefore that the Municipal Council of the Coipoi'n- tion, appeUant to this Court, in passing and enacting the bye-hiw aiipealetl again.st by respondent to the Ciriuit Court, from the jml^'- iiicnt of which this appeal hath Ih'cii taken, was competent, innl acted itifra rires under said artiiie in passing said bye-law, and thiit the siiiie is ill all respects legal and binding for all th»' purposes ibeiv- of, and of the said article; nnd B.N.A, ACT, s. 02 (0).— OLD LIQUOR LAWS. 205 consiili'iiiij» tlint thern is orror in the jiidilint'iit ii quo, to wit, llif jiiilgmiMit rt'iulcivd on flic 2l5tli Miiy \m) hy tlic CJireiiit Court, for tlif t'oiintv 1)1" IIiinlinf^doM in tlic dis- trii't ol' ni'tiuiitii'iiois in this, tlmt it iu'iil anil iioi(U tlio contrary, ami tlmt said artielc and hyi'-iaw were so ultra vires, and tlio oon- {•jusions of tlic Att.-Ocn. un- foiiudfd ; doth ri'vcrsc and niako void till- said judj^nicnt ; and rcn- (ii'niigtlii' jiidj^incntwliiclitluM.'ourt Ih'Iow on<;iit to have rendered, us well on tiio respondent's said peti- tion lus on the intervention in this cause pled l>y the Att.-Gen., doth dismiss the said petition, with costs as well as in tiu^ court below lis ia this Court, in favour of the Corporation appellant, and H<{ainst tiip said James Moir, the respon- dent, and niaintuin the said inter- vention without costs." Noveinher 11, 1S91, Moir apjtealed ajjuinst this judn;nH'nt to tlui Supreme Court, Canada, and counsel for the Corporation having stfiteil that sinen the above judfrinent the hyi^- hiw ill rior other spirituous liquors, ale or beer, or any of them, by retail within the municipality,' with a .saving clause! as to .sales in original packages containing not less than live gallons [see Mow]. In 1858, 22 Vict. c. 9!). s. 245, sub-s. 6, there is a clause, identical with that re- enacted in the statute on which our opinion is sought, for prohibition subjwt to t\w approval of the ('Uictors. This is re|H'aled in C. S. U. C. c. 54. s. 24(5 (1850), autho- rizing the prohibition of sale by retail. Then 23 Viet. c. 3 (18G0) limited the numlK>r of licenses to Ite granted in municipalities, s. 5 de- claring that it was not to restrict nui- nicipal councils from further limit- ing the number or j)assing any other bye-law muh'r sec. 24G of C. S. U. C. c. 51. In 18G4 the legislature passed the Act 27 & 28 Vict. c. 18. (commonly called the Dunkin Act). Sec. 1 provided that tht! munici- pal oouncil of every county, city, town, township, &c., should have jMiwer to pass a bye-law for pro- iiibiting the sale of liipior and the issuing of licenses within such Ontario Locai, Optioh Act. 1^:^ i '■ i 206 B.N.A. ACT, s. 02 (n).— EXPRESSLY TRANSPERRTNO In re Thk Ontario I^ocal Option Act. ) ! I,! \-' "ill m \\\\- Hi \ III county, Ac, niul full provision wns iuikIc as lo its Itrinfif nppnivod liy tlii> elt'ctoi's. Sec. 2, siili-scc. ,'{, ailowt'd (listiilcrs iiml liicwcrs to hu'll in not less llum ctTlain nanii'tl (|uantiti<'s. 'I'lic brewers' ami dis- tillers' ciiHise still appears in R. S. O. (lHS7),e. lOJ. In IHfJ.}, in 1»0 .t ;{() Viet. <•. Til. s. 2 1!), Hnl)-see. !) is llie clause allo\vin<; a bye-law for proliiliitin<; the sale in taverns by retail, mid I'or |."oliibitin<; totally tlu> sale lliereol' in [ilaces other than houses of jiublic enter- tainment, and this clause is identi- cal with the clause now in (piestion. See. 252 declares that no license shall be necessary I'or sellinn; licpior in oi'i 18, restoring the olil powers to the municipality, lo apply only to jdaces wlu'ic neither of these Acts is in force, ami to apply only so long as the ])ominioii Act shall not beajiplied to it. Tlui liM'al legislature specially distaiiis any exercise of jurisdiction iM'yoiid the revival of provisions in force at coid'ederation. As I nnderslainl the various interpretations given to the Confederation Act in its distri- bution of legislative jiowers in the Privy Council and iu the Supreme Court, and without attcnqjting to cite from the voluminous authorities on the subject, I arrive at the con- chisiou that the Legislature of On- '! ! BN.A. ACT, 9. 92 (0).— PRECONFEDERATION POWERS. 207 tiirio liml jurisdiction to pnss the IStli w'i'tioii. Tiicffft'ct is to li'iivi' till' iiiiwcr of proliiliition in tiii! iiinnii'i|ialilit's us it wiis for so iniiny vein's iM'forc, iiiiil at tilt' tiiiit^ of tliu iiiilH'iiiil si'ttlciiu'iitof llic Constitii- lioii iif our Dominion. I do not ()V(rlt">l< tiic i|iH'stion niiscd as to tills licin;; an alleged intt'rfci'cnct' wiili 'Iradf and coninu'rci'.' Riis- mH c. Tlic Qufcn [see above]. Till' (ii)inion of tlic Suprcnu; Court ill ilmt case, tliat a <;i'n(M'al law likt; llic Ciinada 'rcniiM'raiK'o Act canio witliiii llit^ I'.vclnsivc power of tho PiiiliiMiit'nt of Canada, is thus iiotift'il, the Privy Council dcclar- iiij; tlmt tlu'V must not \k uiK'.cr- Modil IIS intimatin<; any dissent iroiii tiie opinion of the (.'liief .Iiislii't' of the Supreme Court of ('aimilii, and the otiier jiidfre.s, who iijso licid tlmt the Act as a jjjeneral i('f;iiliiti(in of the trallie in intoxi- cating; li(|Uors llirou<;hout the I)o- niiiiioii fell within the class of siilijcct, ' 'l"he regulation of trade ami (■oiiuuerce,' eninneriited in that scitioii, iiud was on that <;round a valid exercise of the legislative limvcrs (if the Parliament of Canada. Tlii'l'rivy Council decided the case (111 (itlicr grouiuls. I am wholly I'liiilile to see how the power gi'iiiitcd to township ninnicipalities to jinthihit the retail sale of liquor liy any reasonaltle construction ionics within the words ' trade ami coiimuM'ce,' as used in the. Fcdcratidu Act. The power, as already pointed out, had hoen for many yciirs vested in the townsliips. If siKJi a construction prevail, it would seem to me to interfere most extensively with many powers granted by our Municipal Acts. They are full of provision.s, not only for licensln'', i»ut for regula- lilting, goveining, and in many cases preventing, acts locally aft'ect- liig trade and couimen'c in the locality, such as auction sales of gocds; Imwkers and pedlars; regii- liiting ferries; for preventing exhi- liltions held or kept for hire or luiwling allevs and other IH'Otlt places of Huuiseinent ; limiting the ^>* >"" Tiiii nnmher of victualling houses ; regii- Ontario Local , ,. ,. 1 , 1 »i 11' Option Act. lalion of nuirkets and the .sale of certain goods therein and on tho streets — most extensively inter- fering with the rights of sale and trading in cities and towns-; for regiiiatlng and preventing various luannfactories ; preventing danger- ous triules ; forestalling and re- grating, Sn'. All these powers existed at the confederation, and 1 am of o|)inion that there can lie no interference with such power by any fair interpretation of the words ' trade and commerce.' I arrive at these conclusions in my view of this prohibition clause. I read it as it stands in the Act of 18()H, and in connection with the rest of that Ai't, and especially with the 2o2nd section. Although it uses the words 'prohibiting totally the sale thereof,' I think these words must refer to the preceding words, which deal with the selling by retail, and merely prohibit such selling in every place. Tlie sub- ject of legislation in the Act was tho granting of shop and tavern licenses, for limiting their number, &e., and councils are allowed to pr(diibit the sale by retail in inns or hou.si^s of entertainment, and wholly to prohibit the sale thereof in shops and places other than houses of public entertainment. I read this as necessarily confined to the retail trade, which is the subject dealt with, and for which a license is re(piired. Then, when sec. 252 declared the general law to lie that no licen.se should be rcipiired to sell in packages of not less than five gallons, it coidd not Ik' intended that such rights should be destroyed under tlu! wording of the ))rohibi- tory clause, or, in other words, that such clause extended to the sale of liquors in manufactories within the municipality in the specified larger quantities. I think the general wording of the Act and its general clau.ses clearly indicate that this prohibitory clause is dealing solely with the retail business. The >l .M :. ' M f : rl I ; t! I I I I 'I ' Ml '■• i i , LI In re Tiik Ontario-Locai. Option Act. 208 B.N.A. ACT, H. 02 (9).— OLD LAWS im re BREWErtw. piacticc of ' drinkiiifj,' iim •jcncnilly iiiiilor.Mtodil in tlir coiinli'V, is iiiini'il at, wlit'tlirr it limy occur in taxciii, shop, or liny other place. I tliiiik it to 111' a slrainctl nnil iiiinccc.>n by tin; Execu- tiv(! Government, but it rcfcr.s wholly to the course to be lulopted by the municipal authorities in the introduction and pasHinp; of their bye-laws. It is in effect the same as asking a delinition of the powers of assignees in insolvifncy, or of sheriffs, registrars, or of rail- way or other companies chartered by the province. 1 think, with much respect, that a perusal of the Act of 1H«)0, c. 5:}.. would not lead ordinary minds to the opinion that, although the latter authorizes tho submission of 'any matters which he (the Lieutenant-Governor) thinks (it to refer,' it would lii> reasonalile to expect thisaiiplication of the general language to ipics. tions, not as to the validity of ncl.s of the legislature or the execuli\c, liiit as to the acts of municipal ai trading corporations, or of any cliiss of oHicials. 'I"he legislature in tlic late Act, Tji Vict. c. KJ., dischiims nil inlerfereiice with the Uo'Jml section of the Municipal Act, 2!) it ;U) Vict, c. ')!., passed by ('aimdii, as to tavern or shop lii'cnses being ic- ipiircfl for the sale of liipiors in tlu> original packages of not less tlmii live gallons or one dozen bottles, .save in so far as modified by sub- sec, J) of .see. 2 10, being the section as to bye-laws for pi <)hii)itiou. No notice is taken of the repeal by tli(> local legislatui'c of this 25211(1 clause, and a large number of others by the statute 32 Vict. e. 32. This leaves it, as I understand, conceded that the brewers' and distillers' clause remains still tin? law of the land. If so, I consider that tiny may .sell the ([iiantities mentioned in the original packages; in other words, that the municipality cannot interfere with their action. After .so selling, it would then seem to follow that the puri'hascr coiihl not retail the contents or sell after bulk broken. But the words of the sec. 252 go further, and appear to authorize u .sale of the original jiackages as received from the manufacturers, that is, the dis- tillers. If this section be held to govern, it will have this eonstruc- tion. I think the intention of the legislatures, both federal and pro- vincial, has been throughout to preserve the trade interests of brewers and distillers as distinet from the retail di-alers. I therefore answer the 3rd question in the negative. As to the 4th question ( ' Is a bye-law in terms of .sec. 18. 53 Viet. c. 56., or as explained bj .see. 1, 5t Viet. c. 46., invalid, where die bye-law does not provide a fine or iM'iialty for sales contrary to its provisious ? ' ) I answer it iu the n.N.A. A(T, s, 02 (0).— OXrs ON DOMIVION. 200 iii'i'iilivc. I ilo Mill coMsidcr lliiit a livc-law omitting to prov idf ii pcii- iijiv i« iii'cosni'ily bud. It iiiiiy l)c in,i|rirli\(', liiit 1 dii nut tliiiik any I. lint uould ([iia'^li it dm any >n('li ;.'iiiniiil. Hoiilo.tln'i'i' lai^lit lu'sonic i'liiii'iil law ill fxistcMcc |ir(>\idiM}^ fill' |H'iialli('s Milder all l>yc-la\v^<." TliijilioM' isa iicarly full jiid^nu'iit ; ihc I'dllipwiiijj is an extract : — jiiatoii. J. A., said (p. oSo, IS 0. A. If.) : " It does Mot sM}i- :.'i>t it^ell' to my iiiiiid as at all niiu'iiisive ill favour of tlic |M)\ver (if llic local lef;islatiire to deal with till' saliject of pniliiliitioM under till' words ' iiuiiiici|(al institutions,' iliiit iirovisions in reference to that «ul)j('('t were at the lime of the |i;i-MM;;of the Confederation Act to 111' t'oinid ill our own Miiniciiial Alts, and had been so for many wars. It must not he forj^otten iliiit the h'j^islatiire of the old |iro- vimv of Canada, which imsscd ilinse Acts, had. plenary powers of liu'isliition, ini'lndin;^ the power to n'L'iiJiiti' trade and comiiicree, to ili'.'ii with the criminal law, and in till! nil the powers which arc now iliMiilinted Itetweeii the J'arliament 111 till' DoniiMion and the Icf^isla- •iins of the provinces. Having lliiit power, it was clearly conipctcMt 111 the legislature to coiitido to a iiiiiiiicipal council or any other liiiily of its owM creation, or to iinliviiliials of its .selection, author- ity to laako byo-laws or resolutions as 111 siilijects specified in the oiiact- iiii'iit, with the ol)j(H't of carrying it into effect ; and the provision in qiii'stioii being fouml therefore within a Municipal Act in one of till' provinces, furnishes no con- liusivt' evideni^e that by the words 'niniiii'iim! ''istiliitioii^ ' it was iu- tt'in' >1 to conli I every power which * he contained in .such an Act n ihe legisi ''ires of the pro- wiiivs." "It ,y, not without MiiiH' reason, lie conteudt-d that tliciv no inherent connection be- twc' the liquor traffii- and mniii- cipui institutions, which i.s perfectly tnie, bnt there wns n eonstitir niil S 2340. coiniectioll. Ill, I lielieve, all the provinces the power to regulate by the granting licenses tosell iiitoxica- tiiig liijMois existed; whilst ill many the power to regulate e\eM to the extent III prohibiting it altogether existed as a matter of police or niunieipal regulation, so that we have to regard it in the view that at that lime the regulation and pro- hibition had I'onie to lie rcganled as niMiiicipal regulations, which were guaranteed to the provinces Milder coiifederat ion, and made part of their rights liy sec. !)2. I come, therefore, individually, to the con- clusion, although this point has not yet been pas.sed U|ioii by the Judicial Committee, that under the term 'niunieipal institutions' the local legislatures' power to iii'ohibil was included, and if the [lower, the ex- elusive power to (h'al 'Witli this (piestiou." " Ueiiigtheiia matterof that kind, and one of a merely hical nature, that i.s to say, coniined to the [iroviiiees, the onus is on those who contend that it is ultra riics to show that it comes within llic )ii>wers granted to the Dominion in fn re Tun (Intviiiii LiiC.'.I. Optiiin Ait. the !)lst sec. "'i'lie ratio (Uri- (/riiili in HiisscU v. The (Jiiccii in the I'rivy Council proceeded, as 1 UMilerstaiiil it, upon this principh-. The .ludicial Couimittee then> held that the ea.se M\ jiriiiidfurie within sec. 01, under the general power (in aihlitioM to the enumerated powers) to make laws for the ' Peace, Order, and CJood Go\('in- ment of Canada ' ; and it became necessary, therefore, to ascertain whether it also fell within the eimnierated cla.sses of subjects in .sec. 92 assigned excilusivcly to the provincial h'gislatuies. It appears upon the face of the judgment that there were only three classes of subjects under which the appel- lants' counsel contended that the case came under sec. 02, namely : - (1) Shop and Tavern licenses for raising of a revenue. (2) Proi)erty and Civil Rights in the province. (.3) Matters of a local and private nature within the province. It is O I 210 li.N.A. ACT, s. i)2 (n).— OVEHnORXK BY DOMINION. In re TilK Ontmiiii Locai, (M'Tio.N Act. ? II perfectly clenr ihnt it did not i'liil witliiii iitiy (>r tliese. I liiiNe j^mie to (lie tniiilileolObttiiiiiii,' tile ease |ire- ^led in the iludicial Conuniltee (althou< h I ha\f seen some such opinion expressed ill other remarked Ity Strong, J., the Dd- minion Parliament, hy jieneralizinj; a law and niakin<; it applicahlc u, the whoU> Dominion, coidd nul- lify the i>owers reserveil to ttic provinces under the Conslitutieiiiil Act. And 111' ipioles in conlir'iiii- tiou of his o|iiuion a ijuestion |iiii to counsel hy the Piesident of tin I'rivy Council. 'Do you niciiii that hy freuerulizin}j; the ]M)Wti< contained in .sec. 02 the Domiiiidii Parliament can take away tin' powers of the local legislature-' A moment's eonsideralion will sIkiw that they possess no .such |.<)W(r. I think tl.e principle nnist he clem, that neither the Dominion Piuiiii- meut nor the local le<];is'-'tui'e ciin attract to itself a jurisdiction in matters assijjued exclusively to tin olhel" Jtower hy the men' device dl (•nlai-d^ing the \ restrietinji the area within which the power is to Im> exorcist'd. Ami 1 wish to add that thei'e is iiosiuii thing as overlappir^ conteiupliilx! in the A<'t, nor any .such principli as '. :al Icfjislation fjiving way h- or heing overhorne hy Doaiinioii legislation, as would ap|M'ar sonir times to occur in the courts of iln I'nited Slates, <'Xeept in the l«" cases pro\i(led hy sec. J),). Willi the exception of th(!se two ciiss the disti'ihutioii of legislative hint lions is of an exelusixe charjiclir, ami heing exclusive, if it falls willim the juri.sdiction of one parliMiiiiii;. it is necessarily excluded from lliiii of the oilier. Once we tind litf the power to regulate or proliili: the Nile of infoxicatin/ licpiei-s m l! B.X.A. ACT, s. n2 (f)) — FUEDERTCTOX V. BINDING. 211 pvcniiniltTscc. !)12, it iiiusl lie rcjiil ,i> nil i'.\<'i'|)tion 1(» si'c. Ill, whicli wiuilil llit'ii rend : Tlic Piirliiiniciit iiuiv iiiiikf laws tor llic pfiu't', (irdcr, and <;(mh1 jjovcrimicnt of Ciiiiiulii, lull lliis is not to interfere witli llie riglit "iriiiiled e.\<'liisis('ly to tlie loi'ill le^isliltnres to )'e<;illiile llie iii|ii(ir triillic. 'I'liiit lliis i^ ilu- view tiiki'ii by Lord IIo))lioiisi> in ilii' I'rivv ( v.nni'i! ii,>i>eiirs, wliere hi' siiys lliiit Uiissell r. Tlie Queen (loi's not intend todeeide tliiit if tlie !.'d to it, and it was assumed in till' Iiii|M'rii!l Act that there eoiild li.' no eoiilliet exeept ili the two ('imiiierated eases [see. !)').] If for till' reasons I liave mentioned this sllliject does fall within suli-see. S, iis ii portion of the mnnieipal iii-li- inliiiiis owers as- si;.'iieil eNchisively to the I'arliament "ICiiiiaila to conflict with it? The only one which can l)y any stretch of interpretation lie held to do so is llial rilaliiij; to the rc^julalion of trade mill coimiierce, and many of the nniiirks I Imve made will c(piany apply to this lirancli of the case. Il I iM,i correct in assumin;; that till' n;;lit to pass a prohiliitory law exists ill the local le<;i>lal lire," even if it (loi's incidentally atVeci trade "iiil coiihiierce, it must Ih- hehl, in tlie IniiMjiiacre of that eniiiieiil and l'";niri| jiidjr,,, Dorion, (■..(., that lI'N iiiiidciiial |)ower is incliided in III'' lifilil to deal with it ; in other «|'i'ls, the rijjlit so to deal with li'iiile and coiaiuerce iiiiist he re- pi-ileil lis an cNccption to the ■« Tin? pinl the Words *re!.;iilatioii of trade anil com nierce,' ill their unlimited sense, e\»li if illicolit rolled l»y the (diitext ill .sec. !)2 and other parts of the Act, as e.vtcndiniif to xiicli a rcfjiilation as a prohibitory li(|Uor Ontario Locai, Option Act. aw III a |i roxiiK'c: but, read in coii- neetioii with siil)-sec. S of sec. !)2, they must, I think, be r(>adasif it had contained a proviso to this effect — ' but so as not to interfere with the ri^ilit reserved exclusively to the provincial le<;isliifiire to prohibit the sale of iiitoxieatiii}^ liquors.' That th llie ( f interpretation laid down by the I'rivy (.'oiincil in a M'fv early case, namely, that sees. !)1 and 02 are to 1m' read to- {jether, and tlie lan;lit of the jirovin- I 1 ! '' i 1' ' '.I ' \$»: 212 B.N.A. ACT, s. fl2 (9).— SUMMATIY OF OLD ACTS. OiTioN Act. 1 •-:; i •^' 2 . ' ■ f f. :'h iti /« re The cial l('<:;i.sliiturt's to p.-iss a iirobilti- ()NTAiiio LocAt ,, ij . j.,^^ I ^|,„„i,i |,.,v,. )„.i.n rii>Tmv Ar-T •' », 111 I I • I • ('unsti'iliiii'il to IkiIiI Mich U-^^islation, contniry to my own opinion, ultra vires; l»ut tlic question is fonliiicd, ns I iindcistand it, to the power of tln" lojiislatiirc to rc-cnai-t sub-sec. J), controilcii at tlic time of confcdci'- ation Ity sec. 2")2. Sub-sec. is not very clearly exi)n'ssed, and \ must confess my first readiii}: of it led me to the conclusion that it referred to two distinct matters, 1st, the prohibitinj; the sale by retail in any inn ; and, 2n(l, tlu> prohibition alto^etiier, whether by wholesale or retail, in any place; but upon further readin<; the various Acts then in force relating to fer- mented or other mamil'a<'tureil li- quor, andsec. 252, 1 am satisfied that the, whole section was intended ta be confined to sales by retail in inns, and such sales as were authorized by shop licenses, and I adopt my brother IMaelemian's reasoning upon this branch of the case. 13eing, thcrtiforc, a mere polic<' regulation for the sale by retail, the (Miactment is not open to the possible ob- jection to whicli I have referred. I answer the two first cpiestions ((1) Had thcLcgislature of Ontario jurisdiction to enact the IHtli S(>('tiou of the 53 Viet. e. 50., and oiitituled ' An Act to improve the fAqiior License Laws ? ' (2) Or had the legislature jurisdiction to enact the said section as e.\- l)lained by .sec. 1 of 5t Vict. v. !().) in the affirmative. Question .'{ [see df/ore] I answer in the nega- tive, assunn'ng as [ do that the question is condned to the power of those bodies under the enactments referred to in the two previous questions now reviewed. As to question I [see ti/xire], \ do not consider a bye-law under these sections necessarily invalid l)ecause it omits to provide a penalty." Maclennan, .I.A., said (18 O. A. n, pp. 5!)0-7) : "Coming to the couelusiou that the enactment in (iiieslion is confined in both its luembeis to sales by retail, I think if follows clearly that it was com. peleut to the Legislatui'eof Ont.iiio to re enact it as falling within ilic class of subjects ' Miuiicipal insti- tutions in the province,' midcr sid) ;"C. H, s.'c. !)2." . . " f ,s not necessary for the pm'po>e nf answering the qia-sticuis bihuo us to determine how far, hy reason of the existence at tlic time of coid'ederation of tjii' Dunkin Act [1801], the provinces may under sid)-sec. 8 of see. 02 have the power of absolute pio- hibition, and I desire to express nn opinion on that point one way or the other. It is enough to s-ty tlmi I think it clear that under tliiit section the pro\ince has the power to revive the enactment in (|U('s- tion, and that our answer to the first two questions ought to be in the aflirmative. With regard to the third question, I am of o(tinion, as incidental to the jjowcr to pro- hibit the retail traffic in li(|uor, tlio province must have the power, nct- ing hoiid fiile, to define from tiiiic to time what constitutes rctiiil trallic. We have seen what tln' definition was in the Act of IS"),'! [see below, 1(5 Vict. c. 183. see..!, sub-sec. 2, original packages con- taining not less than five gallons]. It was substantially the .same umlcr the Acts of 1858 and 18GG. Tills has been changed, luid is now iv- gulatiMl by the K. S. O. (ISS7) c. 19-1, se('. 2, sub-sees. 2, 3, aniN. In my opinion, the mimicipaiitii'« nanicil in the 3rd question cannot at present prohibit under tin' iv- vive(l enactment such sales as mv described in sub-sec. 4 " (Wlioii'- sale Licenses). Osier, .I.A. , declined to give inn o[iinion. Sr.AviN V. Vonv. (»k Ohim.h, March 2, 1875, 30 V. C. (I D p Kto, raised the question of tin' MuniciiMil CoriKiration of Orillia to wholly prohibit the sale f.A. ACT, s. \)'2 («.)).— MOUK OF LlCENblNU. 2lo I to "iVf iii:v miiubcr of tavern licenses to nine. Anil Kielmnls, V.J., held this to Im' within the power of the Cor|K)- nitioii. under 82 Viet. e. .'52., and imth section of that Act, ''The couneil of every township, town, iuid ineorporate & 'M Vict. c. 51., in nlation to the gi'antingof lieense.s,and introdiiced snnii.tr piuvisioMs into the statute which was th' i jxi.ssed." |Ilis liorilship then icad .see. (I, .>.ul>- sees. 4, 7, S, !•, of ;i2 Vict. <•. .■i2., and contimied.] "It is sjiid that tlie local legislature of the pro- vince of Ontario hi.d no autho- rity to pass the last statute of ;J2" Vict. e. .'$2., or at all events tlie poll ions of the Stat lite wbiili authori/.ed the nnniicipality to piis^ bye-laws to limit the nund)ci- of laveiii liccns»'S to Ik- granted, and to prohibit the granting of diop . :! 1 ! t ■ ) i 1 : ■ •: :l 1 : 'ij 1 1 1 i ^ .t i '■ ■' i ' !i ! ij 214 B.N.A. ACT, 8. 92 (9).— NOT COMMEllCE. im. (M' iH ,1:1 j*H1 Si,AviN V. CoKP. licousps. If the Lpjjislnturo of OF UttiLLiA. Ontario Imd no powtT to make thoHi' provisions in llicir stiitutf, lind they power to re|H'iil those pro- visions in the Act of the Piirhanient of Ciinada ? And if tlu-y liad no power to repeal these sections tliey must now 1k' in force, the liiiJth section of the IJ. X. A. Act directing tliat ' All laws in force in Canada . at the Union . . shall continue ... as if the Union had not been made ; sid)ject . to be repealed, abolished, or altered by the Parliament of Canada, or by the legislature of the res|>ective province, according to •« the authority of the Parliament, or of that legislature, or under this Act.' Under the head of ' Distri- bution of legislative powers,' * Powers of the Parliament,' bv sec. 1)1 of the 13. \. A. Act it is provided that." [His Lordship read the beij-innin^ of sec ))1 ; sub-sees. 2 ; it 3 ; and sec. U'2 ; and sub-sees. H; J); 15; & 16; aud continued,] " It is contended that the limiting the inimber of licenses to Ikj granted to taverns in a munici- pality, or prcM'uting the i.ssuing o\l shoj) licenses, is interfering with the exclusive right of the legisla- ture to pa.ss laws for the regulation of connnerce, and that the statute of the Ontario Iji-gislature autho- rizing this to be done is uttrn vires. On the other hand, it is urged that the regulating of taverns, the limiting the numlM'r of liceus<'s, and the dealing with the subject of keejiing untl re- tailing of certain cla.ssi's of articles nnist Iw, in the nature of police niatter.s, |»roi)erly j)ertaining to the powers of nnuiicipalities, and nmst lie 'matters of a merely hx-al aud pri\ate nature in tiie province.' In Januaiy Teini, 1H17, in the Supreme Court of the United States, judguu'llts were pronounced in what are there .stylcil the liiiense Cases, If. S. C. U. S. (5 lIow):)(H. The cases were argued by some of the most di,stingui.sher, or it is ail iiii>|K'rativ(' rij^lit. My treaty witli Friiiico tlii'ir wines are ad- iiiitted to o(iiisiiiii|itii>n in the miiikcls ol" tlie U. S. TJK! law iriia|ilaiii('(l (>r stints the markets of IJU' States against tiie fair and just (i|HTation of tliosi' laws and ti-'aties (jf the IT. S., and renders tla-in so far iiKiiierative. 'I'he Act hlends t«() powers to hi> exercised at iiiiMsure under the statute — the one li';,'itiliiate, to l'ejj;nlate ; tlie otlier iiiu'oustitiitioiial, to proliihit when- ever public .sentiuu'iit of the State (•unit's up to that point. If oiu- State can exelude one or more articles of iiniiort, she pays so iiiiieh le.ss revenue than other States that admit all, iiml in this way the 'duties are not uniform tlir'()iij;liout the U. S.' If a State >liuts its markets aj^aiust one or iiioiv articles admitted under a reciprocal treaty with a foreign iiaticiii by denyinj^a sale of it, then till' U. S. cannot, in good faith, IM'itoriu its reciprocal eugagenients. "Tlie line of argument in favour of the ooiistitntioiiality of the law was after this .sort : — The State li;is a rif^lit to provitilutioiial, and are maintained as public regulations on thegi-ound llij'.t the public health, morals, and property, demand pro- tection. The legal [irovisiou in tli.it behalf must he such as to meet the emergency. If excessive 'i^M 1 II ; ■ ! ..■ ,'ii 1 !l ' it . . 1 !:;' ■• I : I ■) 216 13.N.A. ACT, fs. 92 (9).— AMERICAN DICTA. m I t;'1 i \ ; . ■t ! ^?' 9i,AviN f. Cow. iiuhilp;onoo in intoxicntiiif^ drinks ot'OiiiLUA. i„. ,j„ ^,y•^\^ i( slioiild hi" guarded against \>y wise and |niidi'nt ic- };ulatioiis. If tilt' t'vil lio of such uiiif;nitud»' as to doiiiaiul stringent provisions rcufiiinj; to exclusion, tlu're is no constitutional olijcction to such Ifj^isiation. The rcason- iiif^ I'or till' law it was contended, estahlislied, auu)n<;st otliei's, these propositions: — 'I'hat the trallic in wines and spirituous lifjuors Las, in the public judfjiucnt, as ex- pressed tiuoufih aij;es aiid(v'iituries, deuianded a restraint and re<;ula- tion ; that it' the ri<;lit of ii State to niaintain police laws is coni[)lete and uncpialilied, there can he no conslilulionnl conlliet with the laws of the I'.S., as thi- |)ower is jili.-o- liilc and .-uprenie; xit; (i/so 2.") S. ('. r. S. (12 Wheat.), pp. oil), out), 571, as to admitted police [loWers. The license system was adoi»ted in Enj^land at a verT early peiiod of iiei' history, and has c\er since composed a part of the [lolicc sys- tem of that kin;i;dom : Crabh's History of the En;;. Law, 177. License rej^nlations wci'c adojited hy the proxincial Icfiislature of Xcw Hampshire: Provincial Laws of Kew Hampshire, ed. 17t!l, pp. Gl, 113. " In givinj; judj;mcnt, Tanev, J., stated, U; S. C. l^ S. (.j How), p. 57.'{, that 'the validity of cai'h of them (the law.s) has been tlrawn intpiestion upon the ground that it is repugnant to tluit clausi' of the constitution of the U. S. which oonfcr.s ui)ou Congress the power to n'gulate connnercc with foreign nations and among tlic seveial .States.' And at p. 677, ' The.se laws may, indeed, dis- ciiinagr inijiorls and diminish the price which anient spirits would iiliierwise bring. IJut although a State is bound to receive and to i)er- init the side by the importer of any article of merchandise which Con- gress authorises to he uuported, it is not bound to furnish a market for it, nor to abstain from the pas- Nige of any law which it nuiv deem necessary or advi.snble to guard ihe health or morals of its citizens, although such law mav discourage importation, or diiiiiiii>ii the profits of the iin[)orter,or lessen the revenue of the general (jo\itii meiit. And if any State deems ihi. retail and internal trallic in arileni spirits injurious to its citizens, and calculated to product' idleness, vice, or debauchery, I .see nothing in the constitution of the U. S. to i)revciii it regulating and restraining the tratlii', or from prohibiting it iil- togcther, if it thinks [)i()|«'n ^McLean, J., in his judgment, oi> ser\es, at p. 589, ' A license to sell an article, foreign or dou:csti(\ as a merchant, or innk'"'|v, ;, (U' victualler, is a matter '.•[ police nml of re\cnue within liic jiower ri' n State. It is strictly an inteiiiiil iv- gnlation, and cainiot come in con- lliet, .saving the rights of the im- porter to sell, with any [lowci [losscssed by Congress.' And m p. 5!K): 'The license .system, a^ adopted in all the Stjites, restrain.'* [M'rsons from selling by retail who have not taken a license; and a license to retail spirits is griuili'il by the court, or some other bodv, at itsili.scretion and on certain con- ditions. The applicant to obtain a lici'usc nuist 1k' recommended Uv a majority of the select men of tln' town, as 11 pc'iion of good moral character. . . . Tlic necessity of n licen.se presup[)oses a [irohihilion of the right to sell to those whu have no licen.se. For if a .State may retpiirea license tosell, it niav, in tlic I'xercise of a proju'r disciv- tion, limit the number of sncli licen.ses as the public good nia) .seem to reipiire,' And at p. .Vll, 'A discretion on this subject inii>i be exerci.sed .sonu'where, and it laii lie exercised nowhere but under tlu State authority. The State niiiv regulate the side of foreign spiriis and such regulation is valid, tliun>!li it reduces the (plant ity of spiiib consumed.' And at [). 5!)2, 'In all matters of government, ami i'."- jH'cially of iM)licc. a wide dii^civtioii B.N.A. ACT, 8. 92 (9).— HtOVlNC'ES WEST JUDGES. 217 is necessary. It is not susccptihle (,[ an cxjiL-t iJtnitjitioii, but uiiist Im (Xciei.si'd uiuUt the clmiif^iiin I'xi I'ciieii'S of socii'ty. In tin- jtioj^rcss of population, oi" wcaltli, andi-ivili- siilidM, new and vicious iii in the province? I should think not. I think we may pro[rerly hohl that the powers now con- tPuded for were intended to he, and were, vested in the provincial legislature by these very words. Their being followeil by 'Shoji, stdoou, tavern, auctioiu'cr, and <»thcr lieense.s, in order to the raising of a rcfvniie for jirovincial, local, or municipal purposes' — (h)es not, iu our opiuioi), .show it was the inten- tion to limit the exercise of the jHiwcrs which municipal institutions ought to have, and which tluy lmro\ incrs, there is no doubt that such inti'ii- tion woidd have been ex|)resscd in the Act. " And when woids and expns- sions are imported into that .Vet which ha\e been in eommou nse in legislating for these' provinco. \w nnisl continiH' interpreting these Words in tlu^ same manner and to mean the .sanu* thing as we decidt'd they ua'ant in the statutes passed i)y our own legislatures. It would create great dilliculties and inciiii- venience if we did not act on this rule. " VwdvT the 25l*nd section of the Afunicipal Act of 1HG(5, it was de- (dared that no tavern or .shop liceiisc should Ik' necessary for s»dliiig li([uors in the original packages in which the siune have bei-n received from the importer or mainifaeturer, provided such jMickages contain respectividy not h'ss than five giil- lons, or one dozen bottles. Tiic shop, .saliMtn, and tavern licenses, I think we may assinue, were for the puriHtse of allowing the parlies to sell by retail, and the prohihiloiy ])ower, under the Municipal Act ef IH(K), was to prohibit the sale !))• retail— .sec. 24<.>, No. 9. '* The reference to selling spirit- uous licpior by retail was made at a very early period, in re- lation to the sale of .spiritiiDiis liipiors in Canada. By the Im- perial statute, 11 Geo. III. e. SR, .sec. o, a duty of t'l Ki.v. ior tinv license to any person i'or keeping; a house or any other [dace of piililie entertainment, or for the retailing' of wine, brandy, lum, or any otlier spirituous liipiors, was imposed. And by the provincial .st4itule of U. C, ;{7 (Jeo. III.c. 12., .s.r. 1, e\ery shopkeeper who sidls wine, brandy, rum, or other s[)iriliit' till' proviiii-cs, vriiis to liiivc liniitt'd tin- y retail, ami iliii iii>t make it iieeessai'v for ilie imiiorler or niaiiiifaeturer to lake nut a license to sell wlien sell- in.; ii_v wliolesde, whieli, at iifst, was liniiti'd to ipiantities not less t!iaii three iralloiis, and latterly to IJM' ffnllons. 'I'lie lej^islation as to liii' excise on the niannfaetiire of lii|uiiis and the lieensine; of those I iipi;,'i'(l in that business, seeniw to have lii'eii kept separate from tlit; li'i;islation as to nrantin<^ licenses III shopkeepers and tavern kt'ppers. W'v think, looking at the lej^islatioii liv the province of Oiitariu as ap- |iiii'alili' to the fiivinfjf the jiowers of liiiiitiiif; the nnndier of ta\('riis in a iiiMiiicipality, or prohibit in<; the silf liy retail of spirituous liipiors liy shupkecpers in such niiniiei- I'lility, tiiat this is a power which may lie properly ex«'rcised by the liical h'f^islatiire as a matter chiefly 111' piilice, of a merely local and [iri- vaif iiiLiiire, when it does not inter- t'lr wiili the sde of imported or iiiaiiiit'iictiu-ed liipiors otherwisethaii US liy retail. " We further think that the [lower may Ik- exercisnl, lookin;? at the nature of the lej^islation on the sub- ject, under the power <^iveu to the liicjil iejiislature to le^ishito exclu- |sivi>ly in relation to aiuiiicipal iusti- [tutions, and that the |K)wer toh'gis- Ittte as to shop and other licenses, in order to the raising of a revenue, does not limit such power, but was so jilaced there rather with n view of rcniovinj; all doidtts as to the riijiit of the provincial le""■"'*• the jiarty who apjily to (juasli these bye-laws have failed to shew that the lej;islature of the province of Ontario had not a ri<^ht to pass the statute un disposetl of as the sjiiil corporation may con- sider lulvisuble. The preamble of 13 & 14 Viet. e. 05., 10 August 1850, an Ad to amend the laws relative to taMin licences in I'ppei' Catiadn, was; " Whereas it is c.xpediiiit to Vest in municipal authorities in rpiKt Ciiiiiida the power of iixiii',' |||,. innnbcr of tavj-rns, beer-shops, (md other iioiiscs and places of piililji' cnlertiiinment where wines and spirituous or i'erniented li(piiir> tnv sold, or of pi'ohibiling such lii.iiv. or places in the .sai respectively, and of prescriliinij th,. conditions on which licenses tokirij the .same shall be obtained aiid iicjii, antl tlu^ duty which shall lie paiij thereon over and above that impuMil on persons keeping such Iuhim.!, ami retailing wiues and spiritiams liquors therein by the (linpiiiul) Act 14 Geo. 3. e. 88., an Act tu establish a fund towards further dt • fraying thi- charges of the ailiiiini- st ration of justice and the siippurt of tho civil government within tin province of (Quebec : He it llienliM. ciuicted by the Queen's ^Insi Kx- cellent Majesty, &<•. 'I'li.it mi much of the Act of Tapper Caiiaila of T)',) (ieo. .'{. c. 2., an Act toalltr the liws now in force for graiilin;; licen.ses to iinikeepers, and to p\r to the justii'cof the peace in gi'iiinil quarter session authority to re;.;iiliiif the duties hereafter to be paid uu such licenses; or of the Act Will. 4. c. t., an Act to repeal certain por- tions of 30 Geo. 3. c. 3., inlit liciian Act to itiiiend the manner ol' lin ii- ing i)ublic hou.ses and lor tlie inmv ea.sy convicting of p'^rsons selling spirituous liquors without a liiviisc, &c. ; or of the Act 3 Viet. c. 20., an Act for further regulaliiii: lii' manner of granting licenses tli('(' 111' till' prllff ilii> ixtwcr «)l' uniiitiii}; rcilincatrs ciitilliii.L' tli<' party to wlmin they jiiv "•iiiIiIimI to oliliiill licenses to kirii Inns or Houses of PiiMie lOii- tirliiiniiii'iit.oror tiinkiiiji I'liles iind ivMiiatiims I'or tho eoniliict of siieli liinktrpei-s, or of repeiiliii^' siieli lilies ainl refjiilations, or of lixiii^ ilic (liitv 1)1' Slim wliicli any person i, n'i|iiiii'il to pay for Hiicli lieensc nr Ix'tore lie can obtain the saiiie, (ir of re|iealin<; or alteriii<; any duly (ir Mini so (Ixed or as may lit! incoii- Msiciit witli any provision of tliis Art, wliieli is to 1k> actod on liefoiv till' 1 -I III' March next, — shall he and i* licrclpy repealed, except the 7th mill Sill sections of tho provincial Alt tliinlly above citcil. Section 2 : NiitliiT the repeal of the said Alts nor anythiiif; in this Act coii- liiiiii'il slmll lie constriu'd to repeal or affect any duty or sum imyahle on licenses to vend wine, hrandy, mill s|iiiitiioiis liquors hy retail to he ;;i;iiiteil or issiieil ill Upper Canada to -liopkeepers or others not Ivcep- iii;: inns or places of pulilic enter- tiiiiiiiii'iil, or any provision for pre- vnilin^' the veiidiii"; or imposiii<; any |)i'iiiilty for the vcndiii}; of the siiiiie hy such p(!rs()ns, or in any •"lianilioiit or vesstfl, without a license, or for the recovery and distrihution of any such penalty. Section 4 : Tiiiit the niiinicipality of each tnwn^iiip or incorporatod villaj^p, till' Town Council of each incor- liDiatcd town, and the c'<)mn»)n I'oiiiicil of each city of Upper Caiiiiila, shall have power . to make liyi'-laws, for liinitin<^ the nunilier of inns or houses of piihlie enler- tiiinincnt in such township, villa;;e, town, or city for which licenses to I'ltail spirituous liipiors to he drunk tiii'i-ciii shall 1)0 issued, to lie in force iiftir the last day of Fehruary lS.")l (or for piohihitiiifj theissuiuf^ ol any such licenses, for any house in their rosjioetive luunieipalities) ; mill for fixing tho terms and con- ilitions which shall be previously complied with by any person de- siriiifi such liceiis(>, the drsoription Lmron of house and ncconimodation ho ' "akkic Acth. shall have and constiintly ninintain, and the security he shall give for oliscrvin'; all the bye-laws of the municipality, and the sum he shall pay for such license over and above the duty imposed by the Act afore- said of the Parliament of (rreat Mritain. For regulating all such inns Mild houses of public entertain- ment, and for imposing i'or any contravention of such bye-law any penally nv punishment which they may lawfully impose for any con- travention of other bye-luws. For similar purposes with resjioet to ale and Iw^er houses, and other houses for the reception and ontertaiument of tho jiublic where fernujiited or other maniifactunMl li(piors are sold and drunk therein. Provided always, that nothing herein con- tained shall be construed to relievo any [lorson keeping a houscuif piiblie entertainment and retailing wine anil spirituous licpiors therein without a license, from the penalty imposed for such otVeiice by the Act of Parlia- ment of Cireat Mritain aforesaid." 'I'lio Canadian Act, 1(» Vict. e. ISI,, II .lime IHi'i.'J.entitulod" An Act to repeal certain duties of excise so far as regards l^pper Canada, and to vest certain powoi'S in tho munieipal authorities of that part of tho provinct!"; gives many of the old Acts on this subject which may b(> valuable to refer to. Tho pre- amble is : " Whereas it i.s expe- dient to repeal all provincial Acts and jinrts of Acts imposing duties in Upper Canaihi on licenses to ,s<>ll spirituous liipiors in any quantity or in any place, or to ke(^|) bouses of imblio entertaim ■ 'lit, or on licenses to hawkers and pedlars, or on koe|)ors of billiard tables, or on auctioneers, or on the siiI,. of goods by auction, and generally all duties commonly called excise duties ex- cept only those impos«'d on dis- tillers and the spirituous liquors distilled by them, and nil enact- ments providing for the collection of such duties, and to vest certain I I »:■':> 1' li'ii 'H ;* i' ^ i ! ! ! I j:ii |i : J. 000 :i'j:i H X A. ACT, H. 02 (9).--AnSOLT^TETiY PnEVKNTlVr; liKjron powcis wiili ri'piiil to tilt' iimlti IS I iiA»Tic A( TM. ariiliMiid in llic iiiiiiiiri|>al niillin- ritit'H III' l'|i|H-r ('iiniiilii, Ih> ii tliiri' I ! I !' fore cimctcd, lliiit lh*> Ai't of the l,(;;isliiliirc ol' l'|i|)i r ('iiiiikIii, rWJ (let.. ;i. c. ;M., ciltilMinl An Act lor •,'niiilin<^ lo Hi.s Mnji'sty (Inlics on iicinscs loliawkt IS, iii'iiini'.s, iinil |i«'lty «'li)i|tin('n, iiiiii other tiinlin^ pt'i'soMM tlii't'cin incniiont'd ; anti liio Ai't ol' llif sail! irfiisiatuic, U. (". oH Ch'o. ;{. c, .">., an Act to con- tinue anil le I tea I pa It of, anil ainciiil the Act 51$ (}eo. ;{. c. .'{■l. ; anil the Act of the saiil legislature,}) (leo. 1. V. S., an Act to continue an Act eiitiliilcil nil Act to continue for a liniiteil time an Act passed in 5H (ico. .'{., an Act to continue and repeal part of and amend an Act passed ')() (Jeo. .'{., an Act for •rriiiit- in<^ to His Majesty duties on licen- ses to hawkers, pedlars and petty chapmen, ami other ti'adin^ persons therein mentioned, ami toextemi the provisions of the same; and the Act of the said legislature, 2 \'iet. ;{., an Act to continue mid make per maneiit an Act passed in .'{Will. I. an Act to euntiniie the duty iipi )ii 11 to I lawkers and jiei dill ami the Act of the said le>;islalnie, M (leo. ;{. e. ()., an Act for fjriint- in<; to His Majesty a duty upon liilliard tallies; and the 8tli)ind!)th sections of the Act of the said U"'is- latui'i ;{ Vict. c. S)., an Act ti {lulale the timo of inakinj; returns ami payment of i-olleclors, A;c. ; and the lOth section (\ couxiction of persipu. selling spirituous liipiors witlioui license, and also for regiilntin;; iii,, duty lo lie lexied on lieeii^i'^ id sliopkeeiicrs ; and the Act ol ilic |iro\inee, 13 it II \'iet. e, 7. ill! Alt to amend the law reliiiiM- td hawkers and pedlars; and so laiirli of the Act of the province, I i\, ') Vict. c. 21., an Act to iiinke ( pi'iain allcriitions in the laws rehiliM' in the duly upon stiles of pi'ii|iertv liv auction as imposes or eontimies nnv duly on nuelioneers or on gixnl'-, wares or merchandise sold li\ niii'. tiori in r|i|M'r Canada; — sliall Ih' repealed, with all other Acts iir|ijiriN of Acts, whether of the I'arliiiiiiini of this pro\ ince or of the Legislniiuv of Upper Canada, iinposiiig or cun- tinning any duty in I'pper Camilla on aiictioiieers or on the sale nl goods and wares or mereliiiinli-i' liy auction, or on hawkers, trii(l(i\ or jM'tly ciiapinen, or on keeper* n! liilliard tallies, or on persons scllin;; wine, lirandy or spirituous li(|ii()i>, ale or lieer, liy retail in any plmr, or on keepers of houses of pulilii' entertainment, or reipiiring tlmi any person shall take out any lieciiM' in order to eiialile him to lawfully sell good.s, wari's, or nu'rehandiM' liy auction, or to act as a hawker m pedlar, trader or petty chapiiiiui, or to keep any billiard table for hire or othei'wisi', or to sell wine, liiiiiuly or spirituous liipiors, ale or iH'cr, by retail, except only as regiinN any jienalty already inciirreil. Pro- vided that nothing herein eontiiiiiiil Bhall affect any duty or sum [iiiv- abin under any liye-law of iiiiy uiunicipality in t^iiper Cmiaili niado under authority of the Art ol I'arliainent of the province, 13 \ H Vict. c. (>')., or in any way to im- pair the effect of any bye-law iiimli' under the authority of the saiilAii. or to repeal, alter, or idfect any Ail or law concerning distilleries or di.stillers, or any iluties imiioscil upon spirituous liquors distilleil or made by tliein. Section 3 enacted that muui- UX.A. ACT, J.. fC (9) — ISSURH OF LK^KVSES. 22.T ciimlitM"* niiplit iiiMki- l>yi'-lii\\> for (.iili-sci' I) it'jriiliiliii;; iiiiil piMTii jii,' iiiiciioiiccrs, i^c. ; siili-«i'f. 2, I'di' ri';r'i'"li"rt '""' jioMTiiiii;; nil ,|iii|iki'f|»'i's, >l()rfk('('|M'rs, niiil i,ili(.i> M'lliiifj wine, lii'iimlv or iillii'i' '•|iii'ituoiiH li(|ii()is, file III' Imti, liv rcttiil, in |iliifi's (itlirr iliiiii lidii-c^ iir pliK'i's (if imlilic ciilcr- i;iiiiim'iil,aii(l l'(irn'(iiiii'iii;^iiiiv sik'Ii iii'iMiM to ttikc nut II lirciist' from Jim iiiiiiiii'i|iiil olliccr to ln' (loi;;- iiiilrd in '-ncli live-law, iM-forc it .|mll Ih' liiwfnl for liiiii to sell iiny wine, iiniiiilv or otlit'r sjiiritnons lii|ii(ir, lilt' or lit'cr, iis aforcsniii, wiiliia tlic iniinii'i|iaiity, anil for ri\in)rllu' sum wliifli sliall In- pay- ;ili|i' fill' rai'li siii'ii liccnsi', anil liic !iiiii> iliiriii}{ wliicli it sliall l>o in lin'i'i', mill for liinitini; tiu- imnilu'r iif |H'i'Mins to wiu>iii,an(l tiic Iioiim's 01' pliu'i's for wliicli siicii licenses >luill Ik' frriinled witliin tlie lunni- ii|ijilit_v ; or for preventin;^ aliso- liiti'k till' Hale of wine or liramly 111' nllier spiritiutns liipiors, ale or Imit, or any of tlieiii, liy retail williiii the mnnieipality ; ami for iiinkiiii; siieh further enaetinents II- iiiiiy lie emeil necessary for pviii;,' full effect to any such liye- l;i\v, mill for imposini; [lenalties for ill iitraxcntioii tliereof. Pro- \iili'il always that tlieselliiifj of any wiiir, liramly or other spiritmuis li|iiiii'>, ale or lieer, in the ori^^inal ]iiii'kiif;cs in which tlu' sune were ivirivcil from the importer or nianu- fin'tiii'cr, ami not containinfi re- «|H't'tively less than live i;i(llons or oiii'tliizcn liottles, shall not lie lu'lil to he selling; Ity retail within the iiii'iiiiiiij,' of the Act. Sul»-see. .'} pnividi'il for refiulatiny the keepiiif^ liiiliiinl tallies. Sec. 1 containeil till' proviso that no liye-laws «iiiili shall 1m' intemled aliso- liiti'ly til prevent the .sale of spirit- iiiiiis ii(|iiors, Ac., within any niniii- lipiilily, or at any jilace other than II lioiise of pulilie entertainment, liuul(l Im" valid unless previously ap- |ii'ovi'il liy n tunjority of the quali- eleetors of the (ii'd municipal miiiiicipiilit\ , liy Ihc I'mperial Act 1 t Oeo. .'{. c. HH., a tax was plnced on all wine, rum, and luanily, imperted into the pro\in<'e of C^ueliee, to otiililish a fimil towiii'ds defray- inil the chiir;rcs of the iidminis- tiatinii (if justice iiml the civil ;;o\ciumcnt of the province; and liy sec. .'i there was to Ik* paid to His Miijesty's l{eceiver-(ieneral of the said province a duty of .L'l l(i.v, for every licen.sc" that shall Im f^ranted hy the pivernor, Siv., to any per.son or ])er.sons for keeping a house or any other placu of piililie ent(>i'taimnent, or for the rv- tn'\V\\\ n ccitili- ciitr I'roMi tl;r('«' liousfliolilri's dl' tin- ]Hii'i>li, oiii' of vvliicli sliiill lit' a <'liiircli\viiril('ii, ('crlil'viii}; the appli- i-ant was n proiii'i" |mts(iii. It may )>c ol' value to iioti* that, on' til)' 2!)tli Man li 1777, 17 (li'o. 3. ('. 5., then* was pass- ed uiidiT tlic {^I'l'at seal of llii' |iro- viii«'4' ( f (^ui'Im'c ail oriliiiaiicc proliiiiitii)* wliat«-oe', ("• shall sell, dis- 'I'ihute, or otherwise dispose of, to any Indian or Indians wiliiin this provinc*', or to any t olTeiice was fi), and iniprisdiiiiunt notexceediiii; one month ; forsi'i'nii I ofreiice i'lO, and imprisoninen; iim i'xi'ei'iliiif^ two months, '' If n pii'. son so olTendin<^ Ih' a piilillran, innkit'iM'r, or retailer of stnuii; liipiors, he shall over and alMne lliu said penalty and imprisoniiieiit In- reiiderei' iiieapalile, from the ilav of his conviction, of selling; iiml retailing; liipiors to any per-^m whatsoever, iiotwithstandiiif; iiiiy license that he may have Imil I'm' that purpose, which iicciisi' is Iu'it- iiy decliircd to lie mill or void fnnii the day of his conxiction." Svi' 1 liois (III Das Canada, 12. Ill (i\iii)Ni:u ». I'viut, ■.') A|iiil iSHl, U N. S. L. |{. (-J lliiss. iiiul Oel.), 22.'), Smith, .1. : " Kxcepl in the city of Halifax, there are fiw, if any, cities in the provinces whnv sueli liipior licenses ure jj;mut(tl." (10.) .^ocal works and iin(lertivkiuu:s other than such n.s arc of the following classes : — (a.) Linos of sioam or other ships, milways, canals, tele«^mphs, and othe woiks and un(h'rtakini?s conneotini< the pro- vince with any other or others of tlic l)r,)vin('e, or ext'^'ivdini:? 1)eyoii(l tin- limits of the province.' ' See Note 1, [>. 22 j. RN.A. ACT, s. 92(10).— PUOVINCIAL RAILWAY. 225 in sucli ilwiiys, \v()rk» he ])ni- (.r tlif 1(1 tilt (b.) Lines of stcaiu ships l)etween tho pro- vince and any British or foreign country. {c.) Such Avorks as, altliougli wholly situate within the province, are he fore or after their execution declared hy the Par- liament of Ctniada to he for the general advantage of Cttnailo, or for the advan- tage of two or nifM't' of the [)roviuces.' I Dow i: Hi.\i»iii<; Itc};. r. ('Iiaiuilfi', 1 Han- i,,iv, .•»4K (.lum- 11, IHGS), S. C. .\; H., Hit.-hif, CI.), that tlic N'lw niiiii>*\vi(k Aft, 3.3 Vk-i. <•. 17., imlluiri/.iiif; tlu' is.-siu' ol" tlc- Uiiiiiii'S to tlif lloiiltoii firaiicli llailway to aid in tlio const i'n<-t ion m| II milway tVoni Honlton, in tlit- Mali' (if Maine, to thf New Hrnn.s- »iik iiik! Canada railway in New ilniii-wii'k, wa.s iM'Vontl the [M)werM n! iIh liical legiNlatni'e nnder tlie li X. A. Act. Tliis wa.s rexersetl 111 !'ii\y Council [nee fnlow]. On iJie loth .lune 1H07, iN'foie ili'B X.A .Aet came intooiM'iation, ill' iliiii legislatnn- ol' New iirnns- «iik iMi'sed an Act, I y sec. (5 of »lm'li it was |iiuns«>d constitu ; ii;; ;i JHnly i'iir|>onit<- under naiin "I iIk Iliiulton Branch Hi'ilwa\ •"iiil'iuiy, and they were aiitho- li'iil lo niiike (his ridlway, ruiuiiu}; timu the iulerHcetinh ol' the \ViM)d I'tkiiiic with th. New Urun^wiik Hamicla niilway, iM'inj; n |ilace called DeU'ck, to the Inanidary line of the State of Maine and the province of New Hrnns- wick. The preainlile to the Act, ;{;{ Vicl. c. 17., in ipiestion. set out that the town of Uoullon, Slate of Maine, had otTered the Iloulton Draneh Uailway Cuni- pariy a l>onus of S.S0,(KM), upon condition that the sikiil coin|>aiiy siionld construct and eipiip a rail- way f'om the town of Honlton to the line of the New Bi'unswick and Canatia railway at DeU-ek heforc 1 .Ian. 1S72. That the Houltun Branch Uailway Coin- |iany were willin({ to undertake the construction of :n condition that the town of St. Stephen, in the pi-oviuce of New Brunswick, hhonld ^iw to the Honlton Branch Uailway a Iniiius of Sl,3,(KX), and tiiat the iiihaliitants of that |K)rtion of the town of St. Slephen called Jic Tower district were williug to ^ive the -lid sum, and that such siiiu shoiil' ' raisi-d u|Min I he credit of till leal and |H>rsoiial pro|M'rty of the inlwlti- taiils The Act of Assembly pro- vi.led that the .S1.),(KXJ sliould lie rai.sed liy the issue of de- lientures to that amount. Fnr- Mier. that the real and personal prii|H'rty of all p«'rsons resident or iion-resident in th>' low<'r dis tri'i of St Stephen should In- assessed in order to ni' the int'r- est on such delH-utiires, and ihe l)rinci|ial when I he hitter whould iH'comc due. which was iu twenty years. The .\cl was not lo Iw cn- Diiw r. Hi.AiK. '! Pit': U ' 1! '.1 220 B.N.A. ACT, s. 92 (10).— RULE OF CONSTRUCTION. it a ■. II Dow V. Br.ACK. forced until np^iroved bv two-thirds of till' rjiti'imycrs liiilijc to 1»c nss*'s>i('(l tlu'rcnndcr, whose iiHseiit was to Im- ccrtilied '> tlie (TO\cr- nor-Oencral in ('ipiiiicii in (.^inuu a. All the fornmlitic^ «)f tiie Act wt re eoiniiliMl with. Tile ?iiii\ority of tiie rat(-|itu('rs dissented from the tirraii^enicnt, and th!> lU'lion was raised. Allen, J., who delivered thn jiid{;inent of the majority, said : " It wa.s eontended this Act was iiUfd rirrs of the local lef^islature, and therefore void; that, under B. N. A. Act, see. !)2, snh-see. 10, paraf^iaph (ti), it was withdrawn from the ela.ss of suhjeefs on whieh the provincial le};;ishitiii(^ mi};ht le<;islato ; and that liy force of sec, 91, whieh declares the matters over whieh the Parliament of Canada should have exclusive' legis- lative authority, it Indonged exclu- sively to that Parliament. I'nder see. 92, whieh enumerates the matters confided to the local legis- lature wc have hy snh-see. 10 ' local works and undertakings other than such as are of the fol- lowing elass«^s.' Then follow three paragra|)hs, {a),(h),{c), of excepted classes. Paragraph (a) is the only one that liears on the subject l)efore us, and it reads thus — [rends it]. Cnder .sec. 91, which s|MMifies tin' classes of suhjects assigned exclusively to the Parliament ■■( Canada, liy sub-sec. 29 we have — [reads it.] It was contended that the subject-matter of 3H Viet c. 17. came within one of such excep- tions, and was therefore iH'yond the iKJWer of the provincial as- seiiib'. Ill the case of Reg. r. Chandler, II June 1H(}9, 1 Han- nay, S. C. N. B. 548, this Court very clearly enunciated the priii- cijilcs by Avhich it should be gov- erned, in deteiinining cases where local legislation was attempted on matters express'y withdrawn from the ])roviiicial legislatures and vested exclusively ia the Parlia- ment of Canada; and in the case of the European and North Aiiicrican R4iilwav r. Thomas, IIIImin Tiiin 1872, 14 S.C.N. B. (I Pugs) !•/ decided a short time ago, wc ex. amined those jiortions of the !l|si and 92nd sections by which ih,. question now under discussion iiiiisi U' detennined. In tliat case uc decided that where the riiiiwiiv, the immediate subject of Ic^ji^ln. tion. was to be; constructed clcmlv within the limits of the pioviinv, and not connecting the proviiicc with any other or otiiers ol' ||||. provinces, and no |Hiwer \vii< iii- tempted to be given to extcin'i If. yoiid into the United States „{ America, it was pr.tperly the siili- jcct of legislation by the provin- cial assenihly." " It is a cleiii iiihI well-established rule of constniclioii, that where the words of an Act dl Parliament are plain and niijini- biguous, and without anything' in the Act to limit or control tluiii, courts are lioiind to construe tlicin in their jilaiii and ordinary m'ii'm' In such a eas4', we can look to im thing but the language of the Ad, giving the words of the statute their ordinary meaning, to cam out what the legislature in \viiiil« enacts. We have eitf <1 eiiinii;|i i.l the Act to show the snbject-iiiiltiT legislated iii)on, and the general in tei i-on of the legislature relntiiij; thereto. The other provisions iv late only to the Act not coiiiin;: into o|M>ratioii without thevoleaml assent of tsvi (thirds oV the rati'- payers of the district, and to the means by which the object (oiilcni- plate(i is to be elTeeted. Ii: ih Kiiroi."aii and North Aii^eiiiin Railway r. Thomas we shownl that the right t«i legislate rehiliv •■ inter (ilia, to railways and otlifr works and undertakings coinu'cliiiL' the province with any oilni- m other of til-' provinces or "Nlinilin)! iH'yond the limits of the pio\iiMf helonged bv expivss terms of ibi' B.N A Ai't excju-ively to the Pnr lianient of Camula If that Ih' s', how can this 33 Vict. c. 47 1* \alid ? The railway, witli a vii'Wto B X.A. ACT, s. 02 (10).— OBJECTS OF GEN. NATURE. 227 ihc coiistnu'tion of whieli tho Act Hiis I'lssi'd. nifisf iinriiu'Mtionnhly t'xtcml: bevond the liuiils nl" tliis iiidviiMM'. It is H (■(>iiiii>i'tin<; liiii' 111 riiilwiiy IVnin flic town of Hiiiilton ill tlic United Stntrs of Aiiicrii!! to tlic line of the Nt'W iii'iiiiswii'k mid Ciiniidii Utiiiwiiy ;iii(l liiuid Coiiipiiiiy (a itiiiway loiislnii'tt'd witliin tliis proxincc liv \irtiic of divers Acts of tiic I'roviiiciid As.seiiildy) nt or ncnr DclHM'k station so called in this Mi'iuiiice, for llie |Mir|>ii'c, as tlie All declares, of iiiectiitf; (lie de- siit's (if the inlialtitaiits of tin town oi' St. plicn in llic eoiinty (if Clint lotti , mid to cnali'e iheiii to lia\r (.1- -tated in the A(!t) direct niiiwiiy coiiiiii'MiicMlion iM-tween iroiiltdii ill tlie Stale of Maine, I'.S., iiml tile St. ''idiv Valley in the comity of (."liirlin.e in this |iioviiicc. How then can anyone wild lends ill ' *et, cscniK' the con- (•lii>ii(iii that ii \ "tly eoiitravcnes the letter and "pirit of the B.N. A. ,Vrt ill this, ;!«t it r, it could more •'H'caiiously le^jislate on the siiliject (if iiiihvays cxteiidiii}? Iteyond the liiiiit> (if the |ir(i\ iiiec, or secure the cxistoiice (ir eompletion of siieh niidcitiikiii^js, than by providiiifj till' IiiihIs necessary for llieir con- Mniitidii, and that, loo, in a case likr lliis, where, from the Act, it Wduld seem that llie fiivintj of the ililMiiliiies to lie issued (hrrellll(h'r wiisiiM express eiinditidii mi whicli liif idid WHS to he liiiilt, and wilii- nreessary consequence, any assess- Dow v. Ui..vi k. nienl made under if must likewiMO lie of no lelled." Fisher, J., who dissented, and with wlios(> dc'jision the .ludicinl Coinniittei siiliseipienlly agn-cfl (.vcr /iiloir] said: "If the words 'or extend In-yoiid tin; limits of the province,' in the tirst para- d;riiph of the Idlli suh-scctioii of sec. ft'2 of the D. N. A. Act, arc to Ik> taken in tiiidr literal sense, then in one view of the (piestion ,'{.'{ Viet. «•. 47. is t//fni rirt'.s; as it authorizes the granting of dehcntures to aid in liuilding a railway from Iloiilton, wliiih is in the State of Maine, to the New Hruiiswick and Canada Wail- way in this province, uiil(\ss a fair ci instruct ion of the Act may show a dilTcient intention, f liave never Im-cii aide to .satisfy my mind that this was the true meaning of tin «» words. Itefore the union of the provinces, the lefjislntive powers of eiM h province were conflned to the limits of the province. It was the olijeet of the H. N. A. Act to pro- vide for a P.. 1 lament having legis- lative powers ovi'r the whole Do- minion, whudi was constituted liy the united provinces, and a legis- lature for each province. The powers of legislation were distri- lillted lietweell thes4MlilTcreli< ImmUcs. Olijecis of a gcneial or natural (diaracter, such as iiiide and com mere, railway, and works running over the wludc Dominion, wrc (•X( lu'-ivc suh.jects of legislati( 11 liy tile rarliameiit of Caiiiula ; w lilsl the power 111 legislale upon I muI matters and the •■onstructioii td' local works was eoiiferred upon the dilVereiil legislaluies. IVfoH' the r.ii.in, the legislatures of the re- speelive pro\iiiees were us incom- petent 1(1 eiiiicl a law exieiiding diit wliiih. (he fair iiiference in the iK'yund their limitsas dieyaii' imw idiid cdiilil not, or woiil I not, Im- The I'lnliaineiit of Caniula has now iMiilt." "The local hgislatnre, no power of legisliitioii Iteymid this llirii, linving, HI our opinion, ex- pnivince into the Slate of Maine. I'ldiil its niithority, the Act in It has authority to iiass liiws upon '|Mis|iii|| is mill Mini M.id; and, a- H Miriniis -ulijeils atl'i i| in;,' the whole p 2 IBHII i ■ iHil: 228 HN.A. ACT, H. 92 (10)._WORKS WITHIN DOMINION I > ' );! !'m! I'll hi il !| Dow t Ulack J)oininion, nnd which nre in force in every province. Il nmy incor- jiorate a rnilway company or autho- rize the construt'tion of a rnilway throufjh tlie \vlir)le Dominion, or a line of telejiraph, or other siicli puliiie work. Its le}(ishiti\e power is {general, e.\'enilin.• othcis of the provinces, or (extending Ih*- yond the limits ;if tht? provincf', I think must nece.ssjirily mean works within tlie Dominion of Car - ada, liecause iiy extending la^yond the limits of the |»rovince iitosjme other of tlie provinces, t' ) autho- rity of the Parliament of Canada could Im- coutraveia-d ; whilst the extension into the StJite of Maine would have no sucli effect, as the Parliament is a.s powerless to legis- late there as the local legislature, and there would In- no ohji'ct for such limit4ition of power. The next paragraph expressly refers to foreign countries; and if the first jmragraph wr.s intended to include a foreign country, il would not hav«' Ik-cu necessary to nuike s|M'cial provision therefor in the cas' of a line of steamships in the second. By cdustruing the Act in this way, each {Miragraph of the clause has a 4li.stinct meaning, indicating the (jhject of the different (miiigraphs and provisions ; and if this Ik> not tiie construction the .second para- graph is useless, for, if the words ' extending U-yond the limits of the province' in the ftist iMuagraph mean a foreign country, it includes, not oidy the railways imd telej;iii|i|| lines, but lines of steamships, iinil the latter are the subject of a dis- tinct eneetment in the sj'coml |iiiiii. graph, which could only have Immh ii\serted to provide for a state dl things not in contemplation of t[|,> first. I cannot reconcile these cs- ceptions with the gi;neral object lunl piirpos*' of the Act by any otliii' construction. As the authuritv conferred by the 30 Vict, c, 'ti, ini-orporuting the Hoiilton Hraiuli Kailway Company, to build a rnil- way is coniinentemplated by the Act of iiicdr- poration, especially as the town (if Houlton is by the statute, 'Mi Vict. <•, 17., stJitttl to have contributed towards thi- construction of this road. The legislatiu'e was cleiiilv uuthori/.ed, in iny vj- w of the hiw, to enable the jM-ople of St, Steplin to contribute towards the constriir- tion of that |)ortion of the liiii' within the province, and the most reasonabh' presumption is that ilu'v did .so. If there was anything in the .SO Viet. i-. 54. which woidil come within ihe exdusive powers of the Parliament, it is .sjived by tin- 12!»th section, B. N. A. Act, imd ncNcr having Im-cu repealetl, altered, or amended in any way, is still in force. It also ap|H>ars to me tlmt the li'.i Vict. c. 17. comes witliin the category of jKiwers provid:^d for in the lOth sub-s«'ction of .tee J>2, l)eing purtdy a matter of locid nature. It is diffleidt to discover any provision in the exclii.sivc powers of the Parliament that iiniy ix- fairly construed to meet this case; and it cannot l)e <'onteiiiled that the B. N. A. Act is so con- strue (U)).— PUKFOSK ..i DOM. TAXATION. 220 in this iv.spect ap|waiN to Imj, that die uiilhority oonferretl upon tlifi Pailiauu'ut to rais*- inoiicy by any luwlt* or sy»teui of taxation was i'oi' tilt' piirposi's of the general Uov- ciniiit'iil or oi tlie whole Dominion, til I'l.alih* the Parliament ami (xtivt'ruiuent toiliseharge thediitit-s iiiiil oliligations vast upon tlie l)o- iiiiiiion, anil that taxation tor loeal [Mirpows i.s eontiueil to the legisla- ture (il eaeli province. " Nothing can lie more local than till- Act 33 Vict. c. 47., for its cnmlMiciits are made contingent ii|Kiii II I'uvourahle vote of the rate- imycrs of the locality desiring the railwny. The whole subject is as lociil as can well ht; conceived." '' I have not adverted to the 13th sill i-scrt ion of sec. 02, which gives the local legiwlatitres exclusive jKiwcr to legislate upon property Hiiil civil rights, wliieh must coui- |in>lu'tul a case of the kind under I'diisidei'ution, iK-cau.se it does not npiK'ur to nu! to Ik; of the class of ('ii.ses referred to in the 10th sub- .HHtioii of sec. 92, and it does not iipiHar to me to come under the piiicral authority to tax for local liiir|Mwes, the local legislatures Laving granted aiil to objects of a local nature. For these reasons I Ilia of opinion the rule should be (liscliiu'ged." Dow V. Black was considered in the I'livy Council 5 March 1875, L H. (I P. C. 272 ; 44L.J., P. V. 52 ; 32 L. T. 274. [The iiwU^ arc (jivcii above, and the uaiues of the judges [iresent ante. Note, y. 07.] Sir James Col vile sai.l (L. U. 6P. C. ji. LHO) : " The grounds on which the Su|ireuiu Court has pronounced llii."* Act to be ultrii vires of the local legislature are entirely deriveil from sub-sec. 10 («) of sec. 02 of llic B. N. A. Act. Sees. 91 and 92 jiurport to make a distribution of ligiHinlive (towers IwtW; en the Par- liament of Canada and the provin- -section has been rai.sed both here ami in the court below. 'l"he respondents in- sist that the line of railways which are thereby put within the exclusive jurisdiction of the Parliament of Canada are all rainv.iys which extend either beyond the limits of the province into other provinces within the Dttminioiior into foreign countries. On the other hand, the apjM'llants conli'iid that a nioi'e limited constr'uction is to prevail, anp"nd on the sub-section in (pies- tion. They are of o[)inion that thi! ....-i-i-— r-^r j ( S.I ! l| . r 1 k. k i Hi it 280 B.N.A. ACT, s. !»2 (10).— LOCAL WANTS. Rio. i>. Chandlkr ii 'till 1 9 • 1 1 ; j '1 1 1 1 r > . • I Dow V. Black. Aot I'linuot Ihj wiid to he ti law in ic- latiuii to a lucul work or tiiidi rtakiii^ within the lair and ivasonalile mean- ing of tliese word.**. Tiu' incorpora- tion of the eonipany with its powers, and the coustrnetion of the railway np to the frontier, and therefore so far a.s any lej;islative jiower within the Britisli dominions eould determine that eonstrnetion, liad iM'cn already authorizedhy llie Ails passed In-fore the Ini|K'rial statute eanie into operation. The Act now in (piestion did not purport to <-n- large tin' powers of tlie railway eonii)any, nor e mM it give them povk'crs to he exercised otx the foreign .soil of Maine. Their Lord- ships consider that if the railway company had chosen to make an arrnng<>nient with the iidialiilants of llonlton, in the Slate of Maine, for the const rnel ion of the railway on the terms of the tionns of {nllon, there would hi.ve Iteen no legal ohjei'liuh to iheii' carrying out ilud aiiange- menl. The Act was merely one which enabled the majority of the inhahitimts of the parish of St. Stephen to raise hy local ta.xation a s\disidy designed to promote a work which they considered to lie for the iH-iielit of tlieir town, and to phice the inhahitants in such a position tu Itargain and lo act for their comnu)ii heneli!, in the same mimner as a prival(< person niiglil liavi' thoughl it for his iMiielil to do. In sulistance and in principle it d(M-s not differ from a jirixate act nutliori/.ing the (I'iistees or guardian ol a minor to let H warchoUM- lo Muh a com- pany. Suppose the work, instcr.d of U-ing ti railway, had heen a caual, and the inhahitants had lieen authorized to maki' a iMiinidn of water t7. | The question in Reo. v. Cii.wn. i.ioii, 11 June ISGJ), 12 S. C.N.I! (1 Hannay) 5-lH, was an appliciitidii for a prohibition to restrain our of the county court judges fiom acting under an Act passed liy the local legislature of New Bruns- wick, 23 March IHtJS, entitulcd An Act in Amendnu'Ut of c. I'JI tith- 34 of 11. S. of insolviLi f'oidiiicd debtors. The Act pro- vided for the examination of n debtor iH'fore the county conn judge as to liis ability to \m his debts, ami for his diseliiui;i' from ga(d where his inability i> shown, and where he has made no fraudulent transfer. Hitchie, ('..I , delivering judgment, held this iiii insolvency law, which the Le^js l.iture of New Brunswick liad iin p.)Wer to pass since the B. N. A. / ct, and prohibited the county '.'(Mirt jn';e from proceeding ur acting uutler the Acts passed hy the local 'eg' lature subsi.'umiil to the connng into operation nl the B. N. A. Act, altering, aineml- ing, or repealing tb<' laws relalinj; to insolvent eoiitined debtors, but only so far as they legislate mi the nnilter of insoUcncy, the juris- diction, however, of the I'oiinty courts and their res))ective jn(l;:l•^ renn!init'>; unimpaired under tli< laws o) this pro\inei' relating in insoKi'ncy as existing wlu'ii ilir li. N. A. Alt came into i'orci'. Jh' lited ill his judgment the various provincial laws on the subject ol liaiikiuptcy and insolvency. He also said: "The fad of il.- Act having Im'cii confirmed by ilu Oovernor-lleneral was much rejitd on as giving it a binding force inul efft'cl, but wi' iail to see how tin- can he. No power is given to lin (iovernor-Oeneral lo extend llic aiitliority of the local legislatiiitdi' enable it to override the Impciinl statute, which would l)e the iiitiv sary result if the local legislalim could, by ossumiug the right i" UNA. ACT, s. »2 (10).— RAILWAY TO U. S. 2.'n ! 1 Ifgishitc oil a |)roliil»it»>}); 70 L. T. .■),'{(<; in t lie court helow 20 O. A. It. 4S'.) ; and uiili, p. 7H. ElIKOl'KAN AND NoKTH A.MICKI- ( AN H Air.WAY Co.MPANV V. TllO.MA.H, liihuv 'IVnn, 1H72, 14 S. C. N. 13. (1 Pilffs.) 12 [Ritehie, C. J., Allen, Wcldfiii, and Fisher, J.I.], wn^ an iictiuii ii<;aiust the defendant as >liiuvIiuldL'r in the E. & N. A. ilailwiiy for certain calls. The liliintiffs were incorporated by (he 'J7 Vict. c. 43., the object beinjj; Id tniible them to construct a liiilwiiy from the city of St. John ill N'cw Brunswick westward to ilic lioiuidary of the Unitetl States. I'll.' m Vict. e. «. and 30 Vict. f. I'j. were subsequently juis-setl 111 aid (if this undertaking. Then ill IHG'J the 32 Vict. e. 54. \im passed to remove doubt.s, iianiciy, whether the subscribers liir >liiU('s were liable lor the sums liy liiciu uiiderwrittfii, by rea.son of tlic whole capital stwk not liaviiij,' lieen subscribed, and oth»'r i|m'stion.«. It, ititcr alia, enactetl timt the subscriliers should hv held lialilc in the same manner as if the wiioli' ea;)ital had lieen subscribed. It was conlt-nded that this Act, ;i2 Vict. f. 51., v.as nltra viris (he litcai Icj^isladire, and therefore ^"iil— that under the B. N A. Alt, SIT. 1)2. sub-sec. iO (//),it was "ithilinwn Irom the ciusi of sub- i" !•< oil which the provincial 1 -^^is- latures inijiht Ugislate, and that by fom- of s.t . ,11) ameiiibnciit, i> no NoKTii Amrhi- CAS lUlLWAV Co. V. TuouAs. Act to incorporate the E. & N. A. Ecuoi-ean .inu Railway L'ompany for extension from St. John westward, anti au- thorizes the company so incor- porated to locate and con.stnict anil linally complete a railway 'from tlu' city of Si. .lohii in this (iro- vince westward to the boiimliiry of the I'liited States.' Such a rail- way, if constructed, clearly does not connect this province with any other or others t)f the provinces ; and without stop|iing to notice the marked diflerence of the language 'connecting the province with any other or others of the provinces' and ^c.itvndhiff bci/ohtl the limits of t/ir provinrr,' can we .say a rail- way extends beyond the limits of lh<' iirovince when its location, construction, and completion is actuidly confined within the pro- vince, and when it is limited in ts extent ' to (he boundary of the Tnited Stales' but not authorized to go one inch beyond ? But it was claimed to have lieeii shown, by evidence outside the Act, that at tli(^ lime it was pa.s.sed, and also at the time of the [Missing of the 32 Vict. c. T)!., it was contemplated and intended by the promoters of the undi'iiaking to connect with a lino of railway to ' be built in the State of Maine, in the United States, to meet the E. & N. A. Railway for exttusion from St. John westward' at thel oundaryof the United States, and, therefore, it is contended it was a railway ex- t' uding beyond the limits of the province. But we think we have no right to lo<>k to intentions or anticipi'tion or doings of parties outside iiie provincial legislature, eidier in the Slate of Maine or in the priivince of New Briin.swick, a'.id that the intention of the legis- lature, as expressed in tlie Act, alone can control us — that the fact of the State of Maine authorizing, or ii.s|H'opli'inlciiiliiig, loconstruc(, III actually constructing, ii line of railway in that cmintiy i annol in any way affect the authority of our own l.jiislalure to le^islHte on. imd i I iiii I :i u:' hi t (try ! I, :■ 232 H \.A. ACr. s. 91» (10). — I'UOVINCIAIi UAlliWAY. i " KltROPBAIf AND NOBTII Amkhi- ( A!» Railway Co. V. TllOMAB. 1 Ddbib II. Tem- I'OBALITI^W Fimo BoAHii. i I •!) (lonl witli, niilwny uiiilcrtnkiiins, provided alwiiys such niilways do not coiUH'ct the province with any other or others of the province, nor extend lieyond tlie limits of tlie province. 'Iliis is the simple <|nestion, and all we have to con- sider in determininfjon tile validitv of the Act." " We therefore think tliis is a local work and under- takiii); other than such as arc of the classes einimerated in para- graphs (d). (/>), (r) to snii-sec. 10 of sec. \)'2, and in relation to which tiie lejxislaturc of this province may exi'hisively make laws. The H'2 Vict. c. ,">). hein^. Iheicforc, in our opinifin, valid, that Act dispose*; of tlie l,'2. ;{,«,!>, and 10 olijcctions." It wasai';;ned in DoiiiK r. 'I'km roiiM.rriKs Ki-nd M(i\iti>. in (/uc- liee il H. .Iiinc 1!», IHHO, and in V. r. .Ian. 21, 1SH2, 7 App. ('as. I.'IO; 'y\ L. .r. I>. C. 2(5; 4(! Tj. T. I ; and x(T 2(! L. ('. .Iiir. p. 170, that the Imperial Parliament liaviiifj expressly excluded, l>y siih- sec. 10, sec. 1)2 of til.' M. N. A. Act, IVuin the jurisdiction of the local h'fii.slatiire all " Lines of steam or other ships, \c.," has shown its intention of conferrinfi; on the I'ar- liament of Canada |)owers of le<;is- lation in all matters afrectin<; iiinrf than one province, and alth(ai\ the old |ini\ince of i anada in resiK-ct to cleiffy funds •>f and in both Ontario and (iueltec, was in- valid, and that an Act hy hotli Ontario and (^iicIm'c could not ilo what the (^uehcc Act att(>niptcd to do, which cfinid only he done liy a Dominion ,\ct. [.SVr Note, siih-scc. l.'{. sec. '.>2. 1 Cowan /•. \Vri;;ht, 1H70, 23 (Irani (O. C. U.) OKi. on the Ontario Ad, .'{H Vict. c. 75., nnd re (loodhiic, lit Grant, 366. In BdiTuooiN r. La CoMi-xiiMi. Dp ('iikmin in: Pkij dk Mo.,- TitKM.. Ottawa, kt Occ idkntm., consolidated appeals, in tjinlicc q. M. 14 Dec. IH7S, ill p. (' l''el». 2(5, IHHO, ;') App. Cas. .JHI ; 111 L. .1. P. C. (52; 42 L. T. 111. the railway compiiny in that msr liad been oriffiiially ineor|M)nitf'i| under a (Jiielii-c Act, .'{2 Vict. c.V) My the Canadian Act, ;<6 Vict. « 82., the railway was declnrod to Ih' a work for the p>neral adviiii- taf^e of Canada, and sec. ,5 tliiil it shonlil Ih> deemed a railway to W constructed iinih'r the authority of a spi iai Act of the Parliainenl of Canada, in accordnnco with tlic Dominion KaiI'vay Act, IHtSK, niul that Act was made to apply ; ami it was provided that no part of tlii' (Juchec Uailway Act, 1H(5!», slionM apply to the snid railway, and tlini no part of the Quebec Haihviiy Act, 1H(50, should be iiicor|H)nili(i Then, by a deed, in 1875 the cdin paiiv purjioscd to convey the wliulc railway to the Quebec Ciovermmnt, ■ind by the (Juobec Act, 30 Vict c. 2., such transfer was conlirincil The Privy Council la-Id lliitt iIm provisions of the Dominion Ad, read with the sub-.sec. 10 of sec. 02 of the Hritish North Amcricii Act, 18(57, establislied that llir tran.siclion betwetdi the coiiipiinv and the Government of (^iiclitc could not be validated by an Ad nl the provincial lejjislature. It \vii» belli, Sir James ('olvilc <,'iviii}.' jud;;nu'nt \ser .') App. Cas. nl p. 10 1 |,tlial "tlietnin.saetion bctw n the comiMiny and the Goveiiiint'iii of (jiielicc could not )h^ valiiiiilrii to all intents and purposes by an Ail of the provincial le}»islnturp,biil tlinl an Act of the Parlinment of Canailii was essential in order to {five it full force and cfTect. Thii^ propo- sition was finally Imrdly disputoii by tlie ler.rned counsel for the n- spondciit, but they relied upon tlw Hlh chuise of the deed and the Kith section of the Quebec xVct (3fl Viet. c. 2.) ns showing that if HN'.A. ACT, H. »2 (10).— CHOSSFNCJ DOM. UAILWAY. 2JW cniiix* toihc I'arliniiiiMit of i'HniMlii lor Hi* siiiit'tinn wiis williin tli<> loiili'iiiplHtioti of til)' parties, and .'iiiitt'iiili'tl lliiit lii-roi'c lliat .sanction \\'i» (iltiiiini'd tile (nui.>«ai'tion wrn* Miliil l<'i' soint' |iin'|M)s<'s, anil ^iivc iviliiin int'lioafc I'i^flits wliicli were ia|iiilp|t' III' Ix'in;; a.sscrlcd." 'I'ln* iuilmiii-nl llii'ii |iro<'('cdcd, after (li^tin^ruisliinK (l^n-at Wcstfrn Hiiilway Company *•. 'Tiu' Hir- iniii<;iiaiii and O.xford .innetion Kiiiiway, 2 I'hill. Railway Ca-scs, .■)!I7. (Iiat in the Canadian oa.st' in <|iii'^li(in tlif pultlicand crttditors of ilic coiiipany wcio no parties to tin- iiaiisiiction, aixl coidd not lit- Mtficti'd l)y it nntil it was fully Miliiliitcd l»y an Ai't of the I'arlia- iiiint iif Canada, to obtain which no iitl^ni|il wcins ever to Imvi' been iimdc, llirroforo the whole trunsac- tiiiii, considered as a whole, was of III! force or validity im against the n|i|ioliants. Where a provincial railway is ili.xjroiis of cruMsing a Dominion milway, it ap|H'ars, by Chedit Vm,i,ky C(». v. Ghkat VVestkun Kaimvav Co., 1H7S, 25 Grant 507, iliat the approval of the Dominion I'ri\, Council Railway CoininitttN', Mild also, if an Ontario railway, llic approval of the Com'nissioner el' I'liltiic Works for Ontario, uuist Ik' olitaint'd. And the .•ifjreenient III the companies to waive the.xe riiiiaitions was iield in tliat case to I"' of no use. Nor will the aj^rce- iiu'hl alone of all the committee ilii. Tiiere mn.st be both consents. i'louilloot, V.C., siiid: "The ili'iniiirci' raises the fpiestion wliilliir, where a provincial rail- WHv in Ontario cros.ses a Dominion niilwny, it is necessary to procui-e till' approval of the Commissioner of Piihlic Works for Ontario as Will as the approval of the Rail- way Cniiimittec of the Privy Coun- liiof the Dominion— and also, if timt be so, whether the comimiiies I'au waive this provision." " Hv the Dominion Act of 1872 [35 Vict. c. 05. s. 5], the Great Western Railway works w«'re de- Cbbdm Vallkt dared to be for the fjeneral advan- Co. r. (Ikkat ta^e of Canada, and subject to sec. Wf.wehn H.ui,- l.'iO of c. (5(). of C. S. of C, which *' *^' ' prohibited it from availing itself of crossinfj powers over ot her railways without };ettin;; the approval of tlie Hoard of the Hallway Commis- sioners, for whom the Hiiilwny Committee of the I'rivy Coinicil was subsliluted, IH08, "lil Vict. V. (W. s. 2;{. Hy an Act of 1H77 (40 Vict. c. 15.) the powers as to crossini^s in the Act of ISOS were extended to I'ailwavs incorporated under pi'o\ineial Acts, in any ea.se in whicli it is propo.si-d that they shoidd cross a railway inider the lejjislalive control of Canada. I apprehend there can lie no question that this Act of 1877(10 Viet. c.l.'i.) is ipiile within the conipeteni'v of the Dominion Parliament, as necessaiy and essential for the pi'olec-tion of the Dominion rail- ways within their control : so that the approval of the Railway Com- mittee is reipiisite liefore such a crossinfj can Im' enforced, Hv R. S. O. c. I(i5. s. 5), sub-sec. l("i, no railway company shall avail itself of the crossiu}; |iowcrs (in sub-sec. 15) without the api)roval of the Commissionei' of Public Works; and by .see. 1 the Act api)lies to any railway subject to the le npprovnl of tlic C'oin- Co. V. GiiLAT ,„i^^i,„„,,. „1' I'ul.li,. Works raniiol VVB8TBRN IvAlL* , ,, , . . • ■ WAY Co. ''*' •'"*l»i''"*"'<' With, llicrc iH no in-cd to oxaininp wliotlior tlin nets of ili< colli I III 11 ios iiiiioiiiit tu a waiver." (11.) The iiicoi'i)()mti«)u of objects.' Coi..il!DILIilN(i ' Coi.ONl.M, Hl'll.niNIl AND In- andInvestmknt vi.;s|mkm' Awsoci ation r. Att.- (Ikn. ok (Ji'kbkc, in (iiU'lHc Q. M. 21 Mairii 1HH2, 27 L. V. .1. 'J'.)") |.v»r, for jiulp's, |». 21()|; in 1*. C Drc. 1, 188.3; !) Api.. ("as. I'»7; companies with provincial Asso. c. All' Ohn. oi" .{ I.. J. V. (' 1!) ii. I'. 78S>, (li-cidcd tliiit till- Dominion can in- corporate a coiiipany lo earrv on its o|M>riil ions lliron<;lioiit tlie l)o- niiiiion, Inil llie capacity to so carry on its laisiiiess only cnaliles it lo (III so consistently willi the law liieh it is •I' the lirovinee 111 W opcnilinj;. Hiit a clear case must Ik' shown that it has acted iilcfially. Sec (.'haiidieredold Miiiiii}^ Co. r. Dcsliarats (an American incorpor- iiled companv), in Q. B. C^nclicc, 10 Dec. 1870, l"5 L. C..J. 11; in V.C. .Iiilv 2i), 187;{, L. U. 5 V. C. I> 2!)0; IJ L. J. I'. C 7.'J, putlin;;; little \\ci};lit on Kierzkowski v. (iriiiid .Iiinetion Bailwav Co., Nov. T.i, 1857, 4 L. C. .J. 80; 8 L. C. 1{. 3. The worth ol' the opinions ill that case iM'iiij; to|>iH'd liy tin- fiicatcr authority of the Code [ur- ticleSGlJ. At the heariii}; of the Colonial BriLDiMi and Invest.mknt Asho- < lATlO.N f. AtT.-GkN. ok t^UKIlEC, there were [trcscnt Lord Fil/f^criild, Sir Jiiirnes I'eaeock, Sir Moiitafjne E. Smith, Sir Moliert Collier, Sir K. Couch, and Sir A. Iloldioiisc. Sir Montafinc E. Smith, in dc- liveiinij jiidfinient, said: "'i'his is an appeal from a jiidfjnicnt of the Ciairt of Queen's IJciich of the province of QucIm'c I'cvcrsiui" u jud<;ment of the Sii[Krior Court, which dismissed the petition of t!ic of the province i»ruyiug that it be declared that the appel- lant company had iieeii iUcgally in- Att.-«ei corporatcil, and that it lie ordeinl lo In- dissolved and prohiliitcd I'loni aclin^^as a corporation. 'I'lie jiid^'- meiil now iip|M>alcd from did imt fjraiit the prayer of the pctitidii, lull , and to sell or let the same; iiiiil for the purpose of cstahlishiiif; ii liiiildiii}; or subscription fiiiul In which [M'rsoiis may sub.scrilHMirpiiy in money for invest mentor for biiiiii- \u^ piiriKises, and from which |iiiy- iiients may 1h' miule for said |mii- |»'jsc, and also to act as an a'^ency.' Sec. 1 incorporates the sociely. Sec 1 enacts that the a.s.socialiiui shall have [Kiwer to acipiire mid hold by i»iircha.se, lease, or othii legal tith", any real estate uecessmy for the carrying out of its iiiulii- taking; to construct and maintain bouses or other buildings ; lo lit. s«'ll, convey, uud dispose of tbt .sail! proiK'rty ; to uccpiire and uh' or dispose of every description of materials for building puriwses ; to lend money on .security, by uioil- H.N.A. ACT, H. llj (U).— til'KUKC LAWS. 235 _r||j,r|' (III I'Cnl I'Statc, (»!• fill l)o- iiiiiiiiiii or |ii'(i\ inriiil pivi'i'iiinriil Ml iiiilii"*, CI' "II till' slocks (if iliiirli'i'i'il liiiiik^ ill till' Doiiiiiiiiiii : ;l|l(l III Ill'l|llil'(', IkiIiI, IIIhI llis|IIIS<> ,,t imlilic scciiritit's, sliKjks, ImukIs, ,,i (IclKiiiiirt'H dl' iiiiv <'(ii|i(inilr l», mikI iillici'(lftiiit'il st'ciiritics. rill' clilllSC lU'ON idl'S llllll (III' llS.Sd- liiiiiiiii simll sell llic |ii(i|M'rly s(» ,i(i|iiin'il williiii li\t' )ciiis rroni the ,|;ilr of I lie iiiiri'lius«' ihcn'ol'. Sec. ,j iiialilcs llic iissocicfioii to net iim ,111 apiii'y iind trust fomiMinv. Sir. 11 inovidcs that tin- cliicr nllici' 111' llif association sliall lie III ilu' city of Moiitical, hikI that liiMiicli (l(licl'^ or ap'iicics may Im- i-ialili>lu'il ill London, >]n<;land, 111 New York, in the I'nilcd Sllll^^ of America, and in any city III lown in the Dominion of C'an- iiihi, f(ir sikIi |)iirjK).s»'s as tiie ilinciois may determine, in accor- (l;iiKV wiih the Act; and tlial liiiiuls, c of the a.ssociation may Ih' iniiilc luiyablo at any of tlio caid iilliies or a^^encies. The secr(>tary n| the iisMieiation, the only witness I'iillcd in siipiiort of the iietition, |iiiiv('il that the association had lKui;jiit lands, erected houses on Mnii lands, and .sold them, and llllll also liuilt lioii.ses on the lands if olliirs, and lent money on real iMiite. He stated that these oi)era- limisliad liiiherto lieen confined to ilii' province of Quclu'c, though ilfiiits had In-en made to extend ihc liiisiiiess of the comiMiny to I'lhiT |imvinces, and to estalilish iip'iiiifs in Gla.sgow and New York, which had failed in conse- i|miitr of tlu! inability of the ^i^Miriation to rai.se snllicieiit capi- liil III order to iiuderstand tlie Miii'-tion which ultimately became ihi' principal one to lie considered ill this ap[)eal, namely, whethci till' ju(l};nient of the Court of tiut'cn's Bench is i)roiH'rly founded ujHjn the Att.-Gen.'s iietition, it in uiTis.sary to refer to the Code of (-'ivil Procedure of Lower Cnuadu, "u which the proceedings are Ok.v. or based, llie sco|m> and prayer of the Col. Uiildino petition, and the natiiie'and form AiinlNNKsiMKNi of the jiidiinicnt appeah'd from. A"""- •' \" - The heading.; of c. 10. s. 1 of the code is, 'Of corporations 11- le^^ally formed, or violating or e\- cecdinij their powers.' All. !(}>7 is as follows: — 'In the I'ollow- in<; cases: (I) Whenever any iis- sociation or niimlM-r of jiersons acts as a corporation wilhoiit Immii;; legally incorporated or recognised; (li) Whenever any corporation, public body, or board violates any of the provisions of (ho Acts by wliieli it is i^ovcrneil, or lM'<'omes liable to a forfeiture of its rights, or ilcM's, or omits to do, acts the doing or omission of which amounts lo a surrender of its cor- jioiiile rights, privileges, and fran- chises, or e.vercises any [Miwer, fianclii.s*', or privilege which does hot belong to il,oris not conferred upon il by law: — it is the duty of Her Majesly's Alt. -(Jen. for Lower Canada to prosecute, in l[er Majes- ty's name, such violations of the law whenever he has g(M>d reason to believe that such fm-fs can be established by proof in every case of public general int«'rest ; but he is not bound to do so in any other ca.se unless sullicient security i» given to indemnify the CJovern- nient against all costs to be in- curied upon such priM-eeding. And in such case the s|)ecial informa- tion must mention tluMiamesof the jierson who has solicited th«' Atl.- (ien. to Inki- such legal proceed- ings and of the person who has beconu! security for costs.' [C. S. L. C. c. HH. s. !»; 11 Vict, (il), IH7H, c. i;i. s. l.| Art.9!)H,asanieiuled, reads: 'The summons for that purpose must be jirect'dcd by the presenting to the su[H'rior court, or to a judge, of a special information containing con- clusions adapted to the nature of the contravention, and sujiported by an utlidavit to the satisfaction of the court or judge, and the writ of suuimunH cauuot issue upon such informuliou without the uutborixa- .rx'-' f ! ^ 1 'i f I. V IMAGE EVALUATION TEST TARGET (MT-3) // ^ .:^4i. 1.0 !f "ss I I.I 1.25 Hi Uk ^1 l£ 1.4 2.5 22 1.6 ^ <^ /2 ^7;. '>:> y -^ Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 '^V &< % I T-?«P III* Col. BuiLuiN-a AND Investment Asso. V, Att.- Gen. of Quebec, iiil! Nil i ■•( i 236 B.N.A. ACT, H. 92 (11).— DOMINION COMPANIES. tion of the court or judge.' [See 35 Vict. (Q.) c. 6. s. 21.] The materiiil allegutions of the petition filed by the Att.-Gen. are the following : ' That the Colonial Building and Investment Associa- tion for years past have been, and still are, acting as a corporation in the city of Montreal, and else- where in the province of Quebec, exclusively anu as such, ever since the date of its existence herein- after mentioned, have been buying, leasing, and selling landed pro- perty, buildings and ap])iirtenances thereto, constructing viHas, home- steads, cottages, and other build- ings, and selling and letting the same, and have already been lend- ing money on .security by mort- ■^age or hy[)othec on real estate in this province, the whole, without '. eing legally incorporated or recog- lised.' 'That the operations and I 'isiness of the said association lave been limited to the province of Quebec, and being, moreover, of a merely local or private nature in the .said province, and having pro- vincial objects affecting projierty and civil rights in the said pro- vince, the said association could not lawfully be incorporated ex- cept by or with the authority of the legislature of the pro- vince of Quebec' 'That the said association was incorporated by the Parliament of Canada in the year 1874, 37 Vict. c. 103., and has ever since been in opera- tion under the said Act of incor- poration, which, for reasons above alleged, is null and void and of no effect, the said Act of incorporation being ultra vires. Wherefore your petitioner prays that a writ of summons upon the affidavit hereto annexed be ordered to issue in due course of law, and that the ■said defendants be adjudged and declared to have In'en and to be illegally formed and incori)orated, an I that the said illegal association may be ordereil to be dissolved and be declared dissolved, and, finally, that the defendants be prohibited from acting in future as such corporation, the whole with costs, distraits to the under- signed attorneys.' The petition was verified by affidavit as required by the code, and thereupon mi order for a writ of surauions against the company was issued by a judge. The i)etition also alleges it was presented at the solicitation of John Fletcher, a shareholder of the company, who had become security for costs. It appears that Fletcher was in de- fault in payment of his calls, but in the view their Lordships take of the case, further reference to this relator becomes immaterial. The l)road objection taken by the Att.- tren. in the petition is that the asisociation was not legally incor- [lorated, the statute incorporating it being ultra vires of the Par- liament of the Dominion. The judgment of the Superior Court, given by Caron, J., distinctly over- ruled this objection. Te.ssier, J., is the only judge of the Court of Queen's Bench who aflBrmed il. Dorion, C.J., in a judgment which received the concin-rence of two other judges, acknowledged that, having regard to the observations of this board in the case of The Citizens' Insurance Co. v. Parsons [see sub-.sec. 13, sec. 92], it could not be held that the incorporation of the association was beyond tlie l)owers of the Dominion Parlia- ment, and illegal ; and the majority of the court gave judgment upon the assumption, as their Lordships understand the reasons of the judges, that the association was lawfully incorporated. The con- clusion of the formal judgment of the court is as follows : — ' That the stiid company, respondents, had and have no right to act as a corjwra- tion for or in respect of any of the said oijerations of buying, leasing, or selling of landed proijerty, build- ings, and appurtenances thereof, or the purchase of building mate- rials to construct villas, homesteads, cottages, or other buildings ami B.N.A. ACT, s. 92 (11).— LAND COMPANIES, QUET - '" 237 niomise.s or the soiling or letting of till? same, or the e.stnblishincnt of a building or subscription fund for investment or building pur- |)Oses, or the acting as agents in connection with such operations as the aforesaid or any like afFairs, or any matter of jjroporty and civil ligiitsi, or any objects of n purely local or i)rovincial nature, in any manner or way within the said pro- vince of Quebec, and doth prohibit the said company, respondents, from acting ns a corporation within the saiil province of Quebec for any of the ends or purposes aforesaid.' Monk, J., in a short but clear judgment, dissented from his col- leagues, and agreed with Mr. Jus- tice Caron's judgment. Their Lordships cannot doubt that the majority of the court was right in refusing to hold that the associa- tion was not lawfully incorporated. Altliough the okservations of this hoard in The Citizens' Insurance Co. V. Parsons referred to by the Chief Justice, put a hypothetical case by way of illustration only, and cannot be regarded as a de- cision on the case there supposed, their Lordships adhere to the view then entertained by them as to the lesjiective powers of the Dominion and provincial legislatures in regaid to the incorporation of companies. It is asserted in the petition, .:nd was argued in the courts below and at this bar, that inasmuch ns the association had confined its ojiera- tions to the province of Quebec, and its business had been of a local and private nature, it followed that its objects were local and pro- vincial, and consequently that its incorporation belonged exclusively to the provincial legislature. But surely the fact that the association has hitherto thought fit to confine tlie exercise of its powers to one province cannot affect its status or capacity as a corporation, if the Act incorporating the association was originally within the legislative power of the Dominion Parliament. The company was incorporated with the powers to carry -; its busi- ness, consisr'' ; of various kinds, throughout th Dominion. The Parliament of Janada could alone constitute a corporation with these powers ; and the fact that the exer- cise of them has not been co-exten- sive with the grant cannot operate to repeal the Act of incorporation, nor warrant the judgment prayed for, namely, that the company be do- einred to be illegally constituted. It is (mnecessary to consider what somedy, if any, could be resorted to if the incorporation had been obtained from Parliament with a fraudulent object, for the only evidence given in the case discloses no ground for suggesting fraud in obtaining the Act. Their Lord- ships therefore think that the courts in Canada were right in holding that it was not competent to them to declare, in accordance with the prayer of the petition, that the as- sociation was illegally incorporated, and ought to be dissolved. "There remains the question which was mainly argued at the bai', whether the judgment of the Court of Q. B., which, shoitly stated, declares that the association has no right lo act ns a corjioration in resiK^ct of its most important oi)erations within the ])rovince of Qiiebec, and prohibiting it from so acting within the province, can be sustained. It was not disputed by the coun.sel for the Attorney- General that, on the assumption that the corporation was duly con- istituted, the i>rohibition was too wide, and embraced some matters which might be lawfully tlone in the iH'ovince, but it was urged that the operations of the company contravened the provincial law at the least in two respects, namely, in the dealing in land, and in acting in contravention of the Building Acts of the province. It may be granted that by the law of Quebec corporations cannot acquire or hold lands without the consent of the Crown. This law was recog- nised bv this Board and held to COIv. BDH-DIUfl AND Investment Asso. V. Att.- Gbn. op QnEHEC. I i i^ El I 238 Cor,. BniLDiNo AND Investment Asso. V. Att.- Gen. op Quebec. B.T^.A. ACT, s. 92 (11).— MOETMATN ACTS. ; 42 L. 377; ,r. I lie law •. 92 npply in the onse of the Chniidiere Gold Mininp; Co. v. Dosharats. [In Queliee Q. B. 10 Dee. 1870, 15 L. C. J. 44; in P. C. .Tnlv 20, 1H73, L. E. 5P.C. 277 P. C. 73; 20 L. T. "It may also heaspnmed, I'oi purpose of this ap])eal, that ])owei' to I'epeal or modify tli falls within sub-see. 13 of si of the B. N. A. Aet, namely, ' Pro- peity and civil rights within the provinces,' and belongs exclusively to the provincial legislature ; .so thai the Domini')n Government could not confer power.s on the company to override it. But the powers found in the Act of incorporation are not necesisarily inconsistent with the provincial law of niortmain, which does not absolutely ])rohibit corporations from acquiring or holding lands, but only requires as a condition of their doing so that they should have the consent of the Crown. If that consent be obtained, a corporation docs not in- fringe the provincial law of mort- main by acquiring and holding lands. What the Act of iucorjio- ration has done is to create a legal and artificial person with a capacity to carry on certain kinds of busi- ness, which are defined within a defined area, namely, through the Dominion. Among other things, it has given to the association power to deal in land and build- ing,s, bnt the capacity so given only enables it to acquire and hold land in any province consistently with the laws of the province relating to the acquisition and tenure of land. If the company can so ac(|uire and hold it, the Act of incorporation gives it capacity to do so. It is said, however, that the company has, in fact, violated the law of the province by acquiring and holding land without having obtained the consent of the Crown. It may be so, but this is not the case made by the jietition. Proceedings founded on the alleged violation by a corpo- ration of the mortmain laws would involve an inquiry opening ques- tions (some of which were toncliod ujion in the arguments at the bar) regarding the scope and effect of these laws, the fact of the Crown's consent, the nature and sufficiency of the evidence of it, the con>;p- (pience of a violation of the laws, and the ))roper parties to tak(> advantage of it; questions wliioli are certainly not raised by tlic allegations and conclusions of this petition. So with resjject to thi' ob- j(H'tions founded on the Acts of the |)rovince with regard to buildiu"; societies. Doron, C.J., appears to be of oi)inir remedy may doubtless be foinid, adapted to such a violation of the |)rovincial law; but, as their Lord- ships have just observed with reference to the supposed contra- vention of the Mortmain Acts, that is not the case made by the petition. It now becomes material to examine more closely than has hitherto been done the allegations and conclusions the jictition really contains. The first paragraph, after stating that the corporation carried on its opera- tions in Quebec exclusively, con- cludes thus : ' The whole without being legally incorporated or recog- nised.' The second paragraph avers that the oi^rations of the company being confined to Quebec, nnd being of a merely local nature, affecting property and civil vifiht'^ B.N.A. ACT,H. 92 (11)— DICTA IN PARSONS. 239 ill the province, ' could not lawfully he incoporated except by tlio au- tliority of the lef^islature of the province.' 'iho tliird paragraph alleges that for these reasou.s'the Act of incorporation is null and void,' the said Act of incorporation being ultra vires. The conclusion iiiid |)rayer based on the.so allega- tions arc, ' That the; association be declared to be illegally incorporated, lie declared dis.solved, and pro- iiibited from acting in the future as a corjiorntion.' It .seems to their Lordships it would bo a violation not only of the ordinary ruU's of procedure but of fair trial to decide tliis ajipeal upon a new case, which, a.nt in the Court of Q. B. is not an injunction limited to restraining the company from doing siJeeified acts in violation of particular laws of the province, but is a general jn'ohibition founded on a declaration introduced by the court, other than those prayed for, that the company has no right to act as a corporation in dealing with lands and buildings, and certain other matters witl.in the province. This declaration, with the prohi- bition founded on it, is obviously t ': ■f 11 il » f ': ■ i m K !i Hi tllijliti 240 B.N.A. ACT, s. 92 (11).— BOTH ALTERING ACT. Asso. V. Att Gbn. op Quebec. Coi„ Bnn.PiNG too oxtensivp. A prohibition in andInvestmrnt tlif'so wido nnd swooi)inK tonns would prohibit the conipiiny from acquiring or doahng in lands, though it had the Crown's consont, nnd could only b»> warranted bv affirming the invalidity oi^ th(> Act of incorporation, which would be opposed to what has been stated in the previous part of this judgnient to l)e their Lordships" view ; or at least by affirming that the company, in exercising its powers in the province, must necessarily violate the provincial law, which, as already .shown, is not a necessary consequence. In the result th(Mr Lordships will humbly advise TJer Majesty to reverse the judgment under appeal, and to order that the judgment of the superior courf. be affirmed, and that the present i'.ppellants' costs of the appeal to the Court of Q. B. in Canada be paid by the prer.ent respondent. The appelliints must also have the costs of the appeal to Her Majesty." In the judgment in Q. B. Quebec in this case, 27 L. J. C. 2!)5, in which Dorio 1, C. J., Tessier, Cross, and Baby, .T.T. [Monk, ,T.. dis- senting], took i)art. Sir A. Dorion, C.J., said: "Before the B. N. A. Act was passed the organi- zation . of building societies was considered as so intimately con- nected with the different systems of Ltws in force in each of the two provinces of Upper and Lower Canada, that although under the union which then <>xisted all the laws aflTecting them were enacted by one nnd the same legislative body, it was found necessary to have on this suliject a separate legislation for each pro\ince. The dispositions applicable to Lower Canada were contained in the L. C. C. S. c. 69., and those applicable to Upper Canada in the U. C. C. S. c. 53. Since the union of the provinces under the B. N. A. Act, the e. 69. of the L. C. C. S. has been twice amended nnd partly repealed by the legislature of the province of Quebec, first in 1875 by the 39 Viet. c. 61, and sec- ondly in 1878 by the II Vict. c. 20. In 1878 the Parliament of Canada, by the 40 Vict, c. 50., also amended and partly repealed the same c. G5). of the L". C. C. S., and in 187f) both the Parliament of Canada and the legislature of the [)rovince of Quebec, the firstby the42 Vict. c. 48. and the second by the 43 Vict. c. 32., made provision for the voluntary liquidation of building societies in the province of Quebec. Chapter 69 of the C. S. of L. C. has there- fore been considered by tlie Parlia- ment of Canada as being a Domi- nion law, and has been twice dealt with as such, while it has been three times amended by the legislature of (Quebec as a pi'ovincial law. The provincial legislatures have the same exclusive right, under sec. 92 of the B. N". A. Act, to pass laws ' 'lating to the .subject.s therein lentioned as the Parliament of Janada has, under .sec. 91, to pass laws on subjects not expressly assigned to the former. It seems, theriifore, impossible that both legis- lative bodies .should have had the right to amend and repeal, in whole or in part, the provisions of c. 69. of C. S. L. C. The question was submitted to us in the case of McClanagan and the St. Ann's Mutual Building Society, 24 L.C.J. 162, and we there decided, on the authority of L'Union St. Jacques v. Belisle, 20 L. C. J. 29 [see Notes, .sec. 91 and .sec. 92, sub-sec. 21], that c. 69. of the C. S. of L. C, having a provincial object and affecting civil rights, came within the exclusive jurisdiction of the provincial legislature under sub- .secs. 10, 11, 13, 16, of sec. 92 of the B. N. A. Act, and that the Act, 42 Vict. c. 48., passed by the Par- liament of Canada to provide for the liquidation of building societies in the province of Canada, was ultra vires. We, at the same time, maintained the Act of the Quebec Legislature, 43 Vict. c. 32., wliieli had the .same object as the Domi- B.N.A. ACT, 8. 92 (11),— INCOJTVENTENCE of DOM. ACT. 241 nion Act. We thereby held that tlie provincial legislatures had ex- (iliisivo control over tlio Acts nutliori/.inf^ the estahlishinont of hnililinjj; societies in the pro\inceof Qik'Ih'c. It is, however, ar<;u('d tliiit tlie coini)any responden* is not incdiporated for the pin'[)ose of (loiuji business in the province of Quebec only, but in all the pro- vinces of the Dominion, and that as none of the provinces could pass such an Act, the authority to do so vested in the Dominion Parlia- ment, the subject not coming witliiu any of the classes of sub- jects assigned exclusively to the provincial legislatures by see. 92 of the Imperial Act. In the case of the Queen v. Mohr, 8 Juno ISSl, 7 Q. L. R. 183, this Court iield that a company incorporated by an Act of Parliament of Canada, •13 Vict. c. G7., to establish tele- plione lines in the several provinces of tlio Dominion had no right to establish an iudeiM'udent lino of telephones wholly within the pro- vince of Quebec, and not connect- ing this province with any other of tlie provinces, or not being extend- pil beyond the limits of the pro- vince, as such iudepemlent tele- phone line did not come Avidrinany of the exceptions contenr^ !af rd in panignii)hs (o), (b), (r) of sul) sec. 10 of sec. 92 of the 13. N. A. Act. Our judgment in that case was based on an express provision of the Act applying to lines of stoan)shi])s, railways, telegraphs, and other similar undertakings. Buihling societies are not expressly men- tioned in that sub-section, and their object is not of the same character as the works and under- takings to which it refers. Al- though it is difficult to understand why a different rule should prevail, )X't it cannot be said that building societies come within the express provision of sub-sec. 10, and that decision is not therefore incon- sistent with the opinion express- (■(1 by the Judicial Committee of the Privy Council in the case tj 2.340. AND Investment Asso. t'. Att.- Gen. op Quebec. of the Citizens' In.surance Co. v. Col. Bcildino Parsons [.see sub-.sec. 13, and ex- plained «)i/'c, p. 239], 7 App. Cas. 96. In that case, their Lordships, in their observations on the jiulgment of Taschereau, J., of the Sui)nune Court, expressed themselvt'S to the effect that the power to incori)orate an insurance company to carry on business in one of the provinces of the Dominion, lay M'ith the legisla- ture of that province ; while the incorporation of companies to carry on business throughout the ■whole Dominion or in more pro- vinces than one, was vested in the Parliament of Canada, as not coming within the chisses of sub- j(.'cts, exclusively assigned to the ])rovincial legislatures. Although the question alluded to was not si)ecially raised in the case of the Citizens' Insurance Co. v. Parsons, yet the opinions expressed were so directly to the [)oint, that we do not feel it would be competent for us to consider the question as being now an open one. We do not, however, consider that the opinion so expressed covers the present case. Here we hav(> a company incorpo- rated to carry on its operations throughout the whole Dominion, wdiich assumes to do business in one province only, that is, in the province of Quebec. The exclu- sive right of the legislature of that province to regulate the establish- ment of building societi'js within its own limits, would be destroyed if the Parliament of Canada coidd, by granting general powers, autho- rize a company to act within one province only. The inconvenience resulting from the exercise of .such a power is well exemplified in the present case. If the company, re- spondent, had been incorporated under the Acts in force in the pro- vince of Quebec relating to building societies, it would only have ob- tained the limited powers conferred upon such societies by c. G9. of the C. S. of L. C. and its amend- ments, but by going to the Parlia- ment of Canada for a special Act of 1^ '■ 'i- 1 1 HI 2t2 B.N.A. ACT, >. f)2 (11).— DOM. ANTI) ONE PROVrNCE. i Asso. V. Att Gen. op QUKIIEC. fifif I I ill! IM. ii; m C'oi.. Bni.DiNO incorporation, it liiisolitiiiiiod jjowors ani)Invk.stmknt ,,|' ., 1,1, 1,. ii ,|„,|.,. ,.xi,.|„l(.,l cliiiriic- tcr, mill sncii iis are not conl'iT- ivd on otiior bnildin}^ societies in the province of Qnebcc. As tlio Dominion Parliament conld not (lirocty incorporate a buililin;;; so- ciety to do bnsiness exclusively in tlie pi'ovinceot' Quebec, it would seem that a company incori)orated to do business throu com- panie.s to do business tlirc.;ghout the whole Dominion, has no rigiit to alter or repeal the general speci- fic law.s of the several provinces affecting the tenure of lands, or the right to acquire and hold lands therein. This question was for- mally decided in the case of Citizen Insurance Co. v. Parsons, 7 App. Cas. 96, at p. 11 7 [see below, and sub- sec. 13], and apart from the general rule there laid down, we find in the exhaustive judgment of their Lord- ships the following passage. [Reads passage comnieucing 'But it by no moans follows,' down to 'thon;;li liie coriioralion would still e\ist and prcservt .is statnsasa coi'porate body,' jwsf, ]). 2()7.] "Thesupposed case commentedon by their liordships is exactly the one we have to deal with. The Civil Code, in the articles already cited, prohiliits the acipiisition of im- movable property by corporations without the pre\ious permission (if the Crown, and c. 6)1. C. S. L. ('. sees. 13, 23, has especially gniir- ded against the accumulation n|' landed estates, in the hands (if building societies, by providing; that they could only hold roil estate as security lor loans niiidc by such societies, or for moneys (hii^ for the payment of stock ; the only power to hold real estate absolutely being limited to an amount of 86,000. Yet the Do- minion Parliament, in coiiti'avon- tion to both general laws of the j)rovince and the special laws enacted in reference to buildiiij; societies, has incorporated the com- [)aiiy, res])ondent, for the very pnr- ))ose, as stated in the preainble (if the Act, of buying, leasing, and selling landed [trojierty, buildin;,fs and appurtenances, 37 Vict. c. 10.'!. sec. I, and it is in evidence tliiii, acting under this Act, the resp(in- deut company lias already ac(piir('(l larg(> tracts of land in the city of iVIontreal, and its iuinie(liat(> vicinity. Wiiatcver, therefore, may be the ultimate decision as to tlio right of a company to do business in one province only when tlio company is incorporated by the Parliament of Canada to do busi- ness throughout the whole Do- minion, it is clear, from the opinion expressed by the Judicial Comniit- tee of the Privy Council [see this o])inion, p. 267], that thocompanv, respondent, liad no power to deal in the purchase, lea.se, and side of real estate, &c., in the province of Quebec. We, therefore, considiY the judgment of the Superior Court to have been erroneous, and, acting on the .suggestion contained in the right tended to 3.X.A. ACT, s.n2 (11).— PROV. AND LAND ("OMPANTES. 213 iihiivc t'Xtnict I'l'oni llic jiidifmcnl in Citi/t'iis' lusiininc'c Co. r. I'lir- soiis, witliont (Iccidinjf tliat tlic wliolc Act iiR'or[)oratinj.; tlic coiii- IKiiiy rcs|)(»n(l('nt i.s ultra riris, we luilil that the company lias no rif;lit to exercise in the [H'ovince of QiU'hec tiio powers conferred by its Act of incorporation, to buy, lease, and .sell lands, &c., in the |pi()viiice of Queltcc, and it is by (.ur jii(l;;inent forbidden to do so." McCtANAG.AN C. St. Ann's ^Mu- TIAI, BriLDINO SoriKTY, 21 L. V. ,]. 102, was a case in which ]Mc- Claimgan, 20 Aug. 1879, applied for an injunction against the defen- ders, a building society incori)ora- twl under C S. L. 0. e. 69., going into li(iuidiition under the pro- visions of the Dominion Act, 42 Vict. c. 8. While the proceedings were pending, the Quebec Legisla- ture passed a statute, the 43 Vict, c. 32., re-enacting as to the pro- vince, all the provisions of the Do- minion Act, and it also passed the 43 Vict. e. 33., ratifying all proceedings adopted under the [irovisions of the Doniiuiou Act. The last Act was not to affect pending cases. These Acts were ratified 31 Oct. 1879. Oa 1 Dee. 1879, the Sup. Ct. [Torrance, J.] held the Dominion Act not ultra vires, and refused the injunction. On 4 Feb. 1880, the Q.B.Quebec, 24 L. C. J. 1G2 [Sir A. Dorion, C.J., Monk, Eaniwiy, iind Cross, JJ.], held the Dominion Aft ultra vires ; but as the defen- ders' proceedings had been ren- dered valid by the Quebec Legisla- ture, there was now no ground, when the judgment below was l^iven, or this ap^ieal instituted, on wliich to I'estrain the society from proceeding to licpiidation. Ai)peal ilisniissed with costs. Sir A. Doriou, C.J., said: "We cannot agree with tlu; court below that the Dominion Parliament had the right to pass the Act 42 Vict. c. 8. This Act is not in tlie nature of an insolvency law, for it is in- tended to apply to all building societies, whelher solvent or not. It is. therefore, essentially an Act affecting civil I'ights, which, under the provisions of llie B. X. A. Act, comes within the exclusive juris- diction of the local or provincial legislatures." CiiAUDiiinE Gold Mining Co. [a Boston comiiany] v. Deshahats was an apjx'al from the Quebec Q. C. 10 Dec. 1870, 15 L. C. J. 44, in which Caron, Badgley, Monk, JJ. , [Duval, C..r., and Loranger, .T., dissenting], held, allirming a judg- ment given on demurrer by Tor- rance, J., in the Suf). Ct., Montreal, 31 May 1869 [13 L. C.J. 182], that by the law of the province of Que- bec, Civil Code, arts. 364, 365, cor- [)orat ions are under a disability toac- (piire lands without the permission of the Orown or the authority of the legislature, and that a foreign cor[)oration which hail purcha.sed lands in the said province without such authority, and was evicted, had no action of damages against the vendor. Caron, J., said: "La question decidee par le jugement est de savoir si les corporations do la nature de celle qui porte la presente action, ont ilroit, d'apres notre loi, d'acipierir des biens iinmeubles dans la province, sans la permission de la Couroune on I'autorite de la legislature. Le juge- ment qui nous est soumis a decide la (piestion dans la negative, et a renvoyd Taction des appelants. L'intime pour soutenir le bien jugf till' (loinnrrcr in, llicrct'i )!•(', iilso iihsoliitc iii;iiiiist tins corporation iiiidcr tlic [ji'ovisions of our locnl liiw." That case wnsdllirMHMlin llic I'ri\v Council Jnlv 20, IHT.i, \j. H. r, V. V. 277. Tiicrc Sir Monla^ruc E. Smith, in (Iclivorin;^ the 'illinninfj judi^uicnt, saiil, alter cilin;^ in I'ull tlic Edits of 17i;J [srv 1 Code (»vt'ii'i;;ii williiii I lie limits ol' tlu'ir ri's|H'ctiv(' ft'rritdi'ics.' 1 (Stdry's Const., -i Kil., s. 171. 'Tlu; l(';iisliitivo liodics in tlic dc- lii'iidciicit'N of tlic Ci'own liiuc, sith moth), the siiini' powers ol' Ii'l^isljilion IIS tlu'ir i)rotoly|>t' in Kii;,'iiiii(I, siiliji'ct, liowi'VLT, to tlic liiiiil iii'ji;ativ(^ ol' I lie sovcrci;;!!.' 1 Hiooiii's Com. Vl[\. 'I'lic term ' liu'(ii|ioriition of coiiiiMiiiii's with pidviiiciiil olijfcts' in tlic 11. N. A. Act ik'lincs tiic diis.scs of corpor- iitimis witliiii tli(^ legislative iiuliioi'ity of the provinces ; and its iiicaniiif; must be <;athei'ed I'idiii iiiiiiloi:;oiis clauses, cmpowcr- iii<; tlu'in to make laws in relation to 'local works and niideitakinj;s ' (siili-scc. 10) and ' mattersof a mere- ly Idciil or private natnri' in tiic pro- vince' (snb-see. 10), and nndi'r which it is obvious the legislature uiiiy incoruonri' companies for like purposes. '1 ii se references show tliHt the terms 'proviucial' and 'nicnl' are interchangeable, and imist be construed to mean ' local objects' within a province, in eon- trndistiiiction to objects common to the several provinces in their collective or Dominion quality, and wliicli are within Dominion legisla- tive jurisdiction. This power to incorporate companies is incidental to a .sovereignty, though siidi power may be delegated. 'Tiie sovereign, it is said, may grant to ji .subject the power of erecting corporations' (Dro. Abr., tit. 'I'rorog'; Viner Prerog. 88, pi. l(i), but it is really the Crown that erects, and the subject is but the iiLstriiuieut.' 1 Bl.' Com., 4 Ed., p. 4.i2. Corporations may be erected by charter or by Act of Parliament, 'of which the royal assent is a necessary ingredient.' /4(V/., p. 151. This assent of the Crown, as essential to the validity of the Acts of the provincial legis- latures, has been questional by the obiter dicta of some learned judges, who siiy that Her Majesty forms no constituent part of the pro- C'i.abkb c. vinciiil legislatures iis she (bes „f ^nion Piub Ik- ., I, " • ,, I- . '1-1 • BU1U.NCE Co. the Doiiiiiiion I'lirliament. J Ins denial of (he legisliiti\e authority of the Crown in pi'ovincial legis- lation toiiclies the validity of all pi()\iiicial Acts since <'onfe(lera- tion, as the usual form of tiie pro- vincial statutes is, ' Her Majesty, by and with tiie advice, &e., enacts.' ' 'i"h(! Icgishitive power,' says Lord Hale, ' is lodged in the king, with the assent of the two Houses ol' I'arliiimcnt.' 1 Hale's Juris. Hs. liords, t: 'The making of statutes i(i by tiie king, with the as.sent of I'arli.iinent.' I White- hicke, King's Writ, ITdU.-lUG: 'The king has the prerogiitivi^ of giving assent to such Hills us hi il)jects, legally eonvcned, present I > him, that is of gi\ing ihem the force and sanction of kiw.' IJacon Abr., tit. 'Prerog.' 489; Co. Iiirance entered into or in force in On- tario, wlietlier the companies wei-e foreign or colonial. There already existed a Dominion Act, 38 Vict, e. 20., requiring all insurance companies to ol)tain a license. The Ontario Act was held valid. Sir Montague E. Smith, in de- livering judgment, .said : " It is enongh for the decision of the pre- sent case to say that the Dominion Parliament's authority to legislate for the 'regulation of traile and commerce' does not comi)rehend the power to regulate by legislation the contracts of a particular busi- ness or trade, such as the business of fire insurance in p. single pro- vince; and, therefore, that its S 2340. legislative authority does not in Citizens' In- the present case conflict or com- scbance Co. op pete with the power over ])roperty ^fJL'^"^ ' " ' and civil rights assigned to the Legislature of Ontario by sTib-sec. 3, sec. 92." SONS. Loi'd AVatson, in judgment in Tennant v. Union Bank of Canada, in Ct. App. Ontario, Jan. 8, 1892, 19 O. A. R. 1; in P. C. Dec. 9, 1893, P. C. [1891] A. C. 31, p. 45; 63 L. J. P. C. 25 ; 69 L. T. 25 [see full report below], said : " Section 91 expressly declares that, ' notwith- standing anything in this Act,' the exclusive legislative authority of the Parliament of Canada shall extend to all matters coming within the ennnierated classes; which plainly indicates that the legislation of that Parliamcuit, so long as it strictly relates to these matters, is to be of jjaramoHnt aiithoriti/. For example, among the enumerated classes of subjects in section 91 are, ' Patents of in- vention and discovery,' and ' Copy- rights.' It would be practically impossible for the Dominion Par- delivering Tennant v. Union Bank OP Canada. 258 B.N.A. ACT, s. 92 (13).— DOM. Si CIVTL TUaHTS Tbnnant v. Union Bank OF Canada, Citizens' In- fcURANCE Co, OF C.VNADAli.TAB- sors, &c. Col. Building AND Investment Asso, V. Att.- Oen. op Quebec, liainont to Icjjtisl.'itc iijioii citlicr ol' tlii'so siilijt't't.s witlidiit aiT('Ctiiij4 the ])r(>|icrty iiiiil civil rifilits of iii- (lividiinls in tlu; provinces." ,SVi' also C'nsliinfj r. Oiipnv, in (}. H. QnclM'c, 22 March 1H7'h, 22 L. V. J. 201 ; in P. V. April lo, IHSO, 5 A))]), ("as. -100; 10 L. J. P. (\ on the provisions of The British North America Act, 1807, relating to the distribution of legislative powers between tlip Parliament of Canada and tlio legislatures of the provinces, ami, owing to the very general language in which some of those jiowers are described, the question is one of considerable difficidty. Their Lordships propose to deal with it before approaching the facts on which the particular questions in the actions depend. It will only be necessary to premise that ' The Citizens' Insurance ('ompnny of Canada,' the defendants in the first action, were originally '-^ TJ.X.A. ACT, s. 02 (13).— FIRE INSURANCE TOYS. 259 iiii'i niiioDitf'd liy nil Act of tlic Into piovince of Ciinudii, 11) & 20 Vit-t. c. 124., 1»y tin; nanm dI' ' Tlio C'aniiilii Marine Insuraiico Com- pany.' Bv anotlier Act of the late province, 27 & 28 Viet. e. 98., fiirtlicf powers, includinji tin; power of effecting eontraets of insurance iicrninst lire, were conferred on the company, and its name eiiiinj;ed to 'Tiic Citizens' Insurance and In- vestment Company ' ; and, finally, l)y mi Act of the Dominion Par- liament, its name was again eiianged to the present title, and it was enacted, that, by its new mime, it should enjoy all the franeliises, privileges, and I'ights, mill be subject to all the lia- bilities of the company under its former name. " The Queen Insurance com- pany is ar English fire and life iusurance company incorporated under the provisions of the Joint Stock Companies Act of the Im- perial Parliament, 7 & 8 Vict. c. 110. It has its princijial ollice in England, and carries on business in Canada. " The defendant company iu caeh of the actions is the ap- pellant. " The statute impeached by the appellants, as being an excess of legislative power, is an Act of the legislature of the province of Outnrio (39 Vict. c. 21.), intituled 'All Act to secure uniform Con- ditions in Policies of Fire In- surance.' " The preamble of the Act is as follows : — " ' Whereas under the provisions of an Act passed in the 38th year of the reign of Her Majesty, in- tituled ' An Act to amend the Laws relating to Fire Insurances,' the Lieutenant-Governor issued a coin- luission to certain commissioners therein named, requiring them to consider and report what conditions are just and reasonable conditions to be inserted in fire insurance policies on real or personal property in this province : And whereas a Canada v. I'An- SONS, &C, majority of (he said commissioners Citizkkb' !»- have, in pursuance of tiie re(piiro- s»"'An<'K <'"• op nicnts of tlu! said Act, settled and ajiproved of the conditions set forth in the .schedule to this Act ; and it is advisable that the same should be expressly adopted by the legi.slature as the statutory con- ditions to be contained in policies of fire insurance entered into or in force in this jirovince : ' " It enacts as follows : — " ' 1, The conditions set foith in the scli.Hlule to this Act shall, as against ti ■ insurers, be deemed to be pari '^f every policy of lli'e insurance hereafter entered into, or rcnev'.'d, or otherwise in force in Ontario, with respect to any pro- perty therein, and shall lie printed on every such policy with the heading ' Statutory Conditions,' and if a company (or other insurer) desire to vary the said conditions, or to omit any of them or to add new conditions, there shall be added in conspicuous type, and in ink of different colour, words to the following effect : — Variations in Conditions. " ' This policy is issued on the above statutory conditions, with the following variations and ad- ditions : — " ' These variations {or as the case may he) are, by virtue of the Ontario statute in that behalf, in force so far as, by the court or judge before whom a question is tried relating thereto, they shall be held to be just and reasonable to be exacted by the company. '"2. Unless the same is dis- tiuctly indicated and set forth in the manner or to the effect afore- said, no such variation, addition, or omission shall be legal and binding on the insured : and no question shall be considered as to whether any such variation, ad- dition, or omission is, under the circumstances, just and reasonable, and on the contrary the policy shall, as against the insurers, be subject to the statutory conditions R 2 ■i.i , \\ i li r ij If it it 260 B.N. A. ACT, b. 92 (13).— "GOOD GOVERNMENT OP." CiTizKNs' In- only, unlesH the vnriationR, ad- BUHANCB Co, Canada i BUN8, &C, ^i' ,, °' (lilions, or omiK.sionH luc (Imtiiictly Canada «. Pah- • ■■ . ■ i » r .i • .i iiKlicatcd iiiitl set tortli in tlu> ninniifr or to tlic t'ITc<'t iifon'saiil. ''','}. A (l('fi>ion of ii court or jiulfjo nndor tlii.s Act .slmll lio s' ' ject to rovicw or appeal to tlio nje(,'ts eniiinerated ill si'ction U'2 had liceii altoj;L'tlier (lisliiict and dill'ereiit front tlioso in section 01, no conflict of Icfjisla- tive anthority coidd liave arisen. Tlic provincial legislatures would have had exclusive lej^isliitive [)ower over the 10 classes of suhjects as- sii;iied to them, and the lioniinion I'ariianient exclusive power over all other matters relatin<>; to the o;o(i(l jjovernmcnt of Canada. Hut it must have lieen foreseen that this siiar|) and deliiiite distinction had not hceu and could not bo attained, ami that some of the das.so.s of siilijects assigned to the provincial legislatures unavoidably rail into and were embraced by some of the I'liiiiiierated classes of subjects iu section 91 ; hence an endeavour appears to have been made to pro- vide for cases of apparent conflict ; and it would seem that with this object it was declared in the .second liranch of the 01st section, 'for greater certainty, but not so as to restrict the generality of the fore- going terms of this section,' that (notwithstanding anything in the Act), the exclusive^ legislative au- tbnrity of the Parliament of Canada should extend to all matters coming within the classes of subjects enu- merated in that section. With the same object, apparently, the j)ara- graph at the end of section 01 was introduced, though it may be ob- .served that this paragraph applies in its grammatical construction only to No. 16 of section 92. " Notwithstanding this endea- vour to give pre-eminence to the Dominion Parliament in cases of a conflict of powers, it is obvious that iu some cases where this apparent conflict exists, the legislature could not have intended that the powers excliisivelv assigned to the provin- fiTizRNH' In- cial legislature should be absorbed hcha.sck (',.. mp 111 those given to the Doliiinioll j^^j^j, ^p I'Mi'liameiit. Take as one instiiiiec the •^iibjecl ' marriage and divorce,' contained in the eiiiiiucration ol subjects in see. 91 ; it is evident that soleiiiniy;ation of niarriago would come within this general description; yet ' solciiiniziilion of marriage in the province' is eiiii- , iiierated among the class(>s of sub- jects in sec. 02, and no one can doubt, notwithstanding the general languag(( of .sec. 01, that tiiis sub- ject is still within the exclusive authority of'tlie legislatures of the provinces. So ' the raising of money l»y any mode or .system of t4ixation ' is eniinicrat'j'd among the classt>s of sul»jtM'ts in sec. 01 ; but, though the de.scripti(jn is siiniciently larg(! and general to imdude ' direct taxa- tion within the i)rovince, in order to the raising of a revenue for pro- vincial purposes,' assigned to tlM provincial legislatures by sec. 02, it obviously could not have been intended that, in this instance also, the general ]iowcr should override the particular one. With regard to certain tdasses of subjects, there- fore, geneially described in sec. 01, legislative power may reside as to solium matters falling within the general description of these sub- jects in the legislatures of the pro- vinces. Ill these cases it is the duty of the Courts, however dilli- cult it may be, to ascertain in what degre(>, and to what extent, autho- rity to deal with matters falling within these classes of subjects exists in each legislature, and to define in the particular case before them the limits of their respective powers. It could not have been the intention that a conflict should exist; and, in order to prevent such a result, the language of the two sections must l)e read together, and that of one interpreted, and, where necessary, niodilied, by that of the other. In this way it may, in most cases, be found possible to arrive at a reasonable and practical 262 B.N.A. ACT, s. 92 (13).— NARROW INTERPRETATION. ■IINi^l'i ■t". I Citizens" In- construction of the language of the 8URANCB Co. OF gpctions, so as to reconcile the re- CANADAt). Par- ,. ' ., , . , SONS &c I spcctive powers they contain, and give effect to all of them. In per- forming this (litRcult duty, it will 1)6 i; wise course for those on whom it is thrown to decide each case which arises as best they can, with- out entering more largely upon an interpretation of the statute than is necessary for the decision of the particular question in hand. " The first question to be de- cided is, whether the Act impeach- ed in the pi-csent appeals falls within any of the classes of sub- jects cnumei'atcd in sec. 91?, and assigned exclusively to the legisla- tures of the provinces; for if it does not, it can be of no validity, and no other question would then arise. It is only when an Act of the provincial legislature prima facie falls within one of these classes of subjects that the further questions arise, viz., whether, not- withstanding this is so, the subject of the Act does not also fall within one of the enumerated classes of subjects in sec. 01, and whether the power of the provincial legisla- ture is or is not thereby overborne. " The main contention on the part of the .'cspondent was that the Ontario Act in question had rela- tion to matters coming within the class of subjects described in No. 13 of owili'r i>< (Icjiositoil or ki';)t im t"lic prc'inisi's, unless tlic sniiic is (.s|H'ciiill_v iillowcd in tlic hody ol' till' [idlii'v, iind suitiihlo oxtni \m'.- miiim piiitl. This qwiintity ol' friin- nowilcr is sniiillcr tlitin tlifit incn- tioiicil in tlic stiitntorv condition ,,l,„v(. set out (."Ji) Vict. (Ont.) f. 21. s. 10 {(/) ), wliicli provides tlmt tlio imiipiniy is not litd)li' for loss or (laniii^'e" oeciuTinj; while, ninonji; utlicr tilings, more tlinn 25 lbs. weight of gunpowder are stored or kept in the liuilding eontiiiniiig the property insured. " It is adiuittod that at tlie time of the fire gunpowder exceeding 10 lbs. in weight was kept in the linililiiig destroyed by the; fire, and the jury have found that the (pinn- titv so kept was less than 25 lbs. " It is contended on the part of the respondent that the contract must, by force of the Ontario Act ill rpiestion, be treated as being without any conditions ; or, if siib- jeet to any, to the statutory condi- tions only. "The judgment of their Lord- ships in the other action has dis- posed of the first of these conten- tions. The second raises the (juos- tion, whether the company's own eonditions or tlie statutory condi- tions arc to be regarded as forniing part of the contract, and its answer depends npon a consideration of tlie further question, whether the interim note is a [lolicy of insurance within the meaning of that term in the Ontario Act. "This note is not a policy of in- surance in the common understand- ing of that word, and was certainly not understood to be so by the parties to it. It is expressly a contract for a policy, making in- terim provision until a policy is prepared and delivered. It contains a [iroposal for insurance, which, if accepted by the company, would result in a policy to be based on the terms of the proposal, and issued by the company to the re- spondent ; the company having an option to decline the jiroposjil, in wliich case no ])olicy would be de- Citizens' In- livered. The iiroiiosal tiius offered 8p«ance Co. op .. , . .' i.. . Canada f. l'.\i!- lor accehtance is 'toeftect an iiisiir- ^„„„ o „ 1 • III I Dur*s, vK-i • anee sul»ject to all the usual terms Mild conditions of this com|)any,' and pending tlie acceptance or refusal of the company, and until the policy is delivered or notice given that the insurance! is de- clined, the property is 'held as- sured under •' these conditions." ' No doubt this last stipulation forms a contract of insurance dur- ing this interval ; but tlie whole agreement is preliminary only, and, in substance^ the not(f is a propos,- ' for a policy to be carried into effect, if accepted, by the delivery of a policy ; as subsidiary thereto, and for the convenience of the person proposing to insure, im- mediate [irotection is granted to him. The practice of issuing in- terim notes mu.'t have been well known, and apt words might have Vieen found by the legislature to describe them if they had been in- tended to be included in the Act. It may have been thought that it would be a clog upon the business of insurance, and would place difli- eulties in the way of obtaining these interim protection notes, if companies were obliged to prejiare them with all the fulness and for- malities which the Act requires in the case of policies. " Their Lordships, therefore, are dispo.sed to come to the conclusion that the interim note in question is not a policy of insurance within the meaning of the Act. If in any case it should appear tiiat an in- terim note or any like instrument was intended by the parties to bo the complete and final contract of insurance, and that this shape was given to the instrument for the purpose of evading the Act, the present decision would not be op- posed to the instrument being treated as a policy of insurance ; the ground of their present decision being that the interim note in this ease is what it professes to be, pre- liminary only to the issuing of ■t ; •^ t! 272 B.N.A. ACT, s. 92 (13).— TIEMITTIN"G ACTTOX. '^ ■ ti 1' H s I i I 6 i i II i > i;; 1 i i CiTizBNs' In- another instrument, viz., a policy, suRANCB Co. OP which tho partifs bond Hdc inti-n- Canada 11. Par- i i u 1 1 i • i 80N8,&c. dc. .shouhl be issno(l. " 1 he.se iiitermi prnteetion notes, given by lire insiirnnee eoniiianies, lu'iir nn ftnnlo;j;y to the ' slips,' eoninionly n.sed in eases of marine insurance, preliminary to the issu- ing of policies. The slip contains the heads of the contract, and is in itself a contract of insurance, though by the statute law of Eng- land, passed for revenue purposes, it could not, until the recent Act of 23 Vict. c. 23., be looked at by n court of law for any purpo.se. Since that Act, it may, for some jnirposes, be given in evilow [there were also pivM'nt Loid Blnekhurn, Sir Bnrnes Peacock, Sir Montague Smith, Sir Robert P. Collier, Sir Richard Coiieli, Sir Arthnr Hobhouse] : "The first qnestion raised in thi.s iiplH'id is, whether the legislature (if till' pi'ovince of Quebec had \n\WY, in tiie year 1875, to modify or i'i|x'iil the enactments of a -tatnte passed by the Parliament of till' province of Canada in the year \m (22 Vict. c. 66.), intituleil • kn Act to incorpoi-ate the Board for the management of the Teui- jioraiities Fund of the Presbyterian L'imreh of Canada in connection witli tiie Church of Scotland.' "The fund, subject to the ad- iiiinistmtion of the Board consti- tiitod by the Act of 1858, con,sisted of a capital sum of £127,448 5s. ^loriing, which was paid by the (iovoinment of Canada under the following circum.stances. Theniin- i^tors of the Pre.sbytcrian Church if Canada, in connection with the Cli'irch of Scotland, were entitled. In virtue of certain Imperial stat- utes, to an endowment or annual Mihsidy out of the revenues derived from colonial lands, termed clergy roserves, and from moneys obtained liy the sale of portions of these liiiiils, supplemented, when neces- sary, from the Exchequer of Great Britain. But thi.s connection be- twoon the Presbyterian Church and the State was at length dissolved. Ill 1853, an Act was passed by the British Parliament (16 Vict. c. 21.), aiitiiorizing the legislature of the province of Canada to dispose of tlie clergy resCiVes, and invest- lueuts arising from sales thereof, S 2340. but reserving to the clergy the annual sti|M'nds then enjoyed by them, and that during the jxriod of their natural lives or incum- bencies. Ill 1855, the legislature of Canada, in exercise of the jKJwer thus conferred, enacted that all union between Church aiui State should cease, and that those ministers who were admitted to office after the 9th May 1853, being the date of the Act, 16 Vict. c. 21., should receive no allow- ance from the Government. It was, however, provided that the rights of ministers entitled, at that date, to participate in the State subsidy, should Ixs reserved entire, power being given to the Governor- General in Council to commute the annual stipend payable to each in- dividual so entitled for the capital value of such stipend, calculated at six per cent, on the probable life of the onnuitant. "All the ministers interested consented to accei)t the statutory terms of commutation, and agreed to bring the amounts .severally payable to them into one common fund, to be settled for behoof of the Presbyterian Church of Canada in connection with the Church of Scotland. In accordance with re- solutions unanimously adopted by the Church in Synod assembled on the 11th January 1855, they fur- ther agreed that the interest of the fund shouhl be devoted, in the first instance, to the payment of an annual stipend of £112 10s. to each commutor, and that the claim next in order of preference should be that of ministers then on the roll, who had been admitted since the 9th May 1853. The arrange- ment thus effected was carried out by eight commissioners duly ap- pointed for that purpose, of whom three were ministers and five were laymen. They received iMiyment of the commutation moneys, to the amount already stated ; and in order to provide for the management of the fund thus obtained, the legisla- ture of the province of Canada, upon Rrv. RonenT DOBIK I'. KOART) OF Phrsiiv- TBRIA.N ClIUHCII. If ' A Ill I i I ' i 274 B.N.A. ACT, R. 92 (13).— UNION OF CHURCHES. I '■f Rbv. HonFKT IlonlR V. ItllARD OF i'llKHIIY- TRIIIAN ClU'RCII. ! iliijiii llio ivpplicntionof tho oominiHsioiiprH, |)iissf(l the Act 22 Vict. c. 00. " By tlio first clnn.' time been abolished, aiul its i(.(ri<. Intive power had been distrilmtcil between the two provincial lo<,'isli|. tures of Ontario and Quebec, umi the new Parliiunent of the Dcmij. nion of Canada, untU'r the piovi- sions of the ' Briti.sh North Anic rica Act, 1867.' With the \n of facilitating the conteni|ilati'(i union of the Chtu'ches, an Act (i[ the legishiture of Quebec waspasscil in Fel»ruary 1875 (38 Vict. e. 02.), in order to remove any obstiuctidii which might arise from the form and designation of the sevcnil trusts or acts of incorporation liv which the ja-operty of the chuidus was held and administered. Bv the 11th section of that Act, it wns provided that, in the event of uninii taking jdace, the members then constituting the Board for nianiigc. ment of the Temi)oralities FiuhI, under the Act of 1858, should lo- uuiin in office, and imy oxer the revenue to the i)ersons itreviousiy entitled to it ; that any revenue not recpiired for that purpose slimiid pass to and be subject to the (lis- l)osal of the united church ; niul that any part of the fund reuminin|; after satisfying the claim of tiic last survivor of those entitled slioiilil belong to the Supreme Court of tlic United Church, and be applied to the aid of weak congregations. It was by the same clause eiinctcd that vacancies occurringin the Teiu- ])oralities Fund Board should not be filled up in the manner theretofoiv observed, but shouhl be filled up in the manner provided by aiiotbcr Act of the Quebec Legislature. " This last-mentioned .stntiite (38 Vict. c. 64.), which received the assent of the Governor-General in Council upon the same day as the preceding, was passed with tiie professed object of amending tlie Act of the Parliament of the pro- ny..\. nV.A. ACT s. 02 (13).— ONTARIO & QUEBEC CLEKGY. 275 !"■ viiiot> of Cnnn Ti'in- [Kiialitics Boai'tl to ininistcrs ami iiliiitioiu'i's tlicn on tlic loll of tlif i'ivitnl of tlic fund, and that any «nr|ilns of revenue or cajiital, after Mitisfvinjj these charj^es, shoidd he lit till' (lisiio.sjil of the united ehureli. Ministers and probationers of the cliiircli, interested in the temporali- tii's fund, who mi^lit deeline to luwme [mrties to the union, were, linwever, to retain all rijjhts pre- \i(iiis!y eomiieteiit to them until the same lapsed or were ex- tiiiiruislied. The constitution of of management was the third and eijjhth the Aet. The third in these terms : — ' As l)ene(leiaries is rediieod below ^B*'- Ronr.BT I to A lit) tile honrd iiiti'i'cd by ciimscs of clause is Ditcn lis any vaeauey in the board I'lir tiif management of the said tf'iiipoialities fund occurs, by death, rcsi^niation, or otherwise, the benc- ficiiirios entitled to the benefit of ihi' said fund may each uominnte a ]iirsoii, being a minister or member of tilt' said united church, or, in the I'vent of there being more than one viiciincy, then one person for each viK'iincy, and the remanent inem- lii'i's of the said board shall there- upon, from among the persons so noininnted ns aforesaid, elect the liiisou or number of persons iK'W'ssary to fill sncli \acancy or viicaiicies, selecting the person or pi'isoiis who may be nominate.' by till' largest number of beneficial ies, l)iit in the event of failure on the part of the beneficiaries to nominate iis aforesaid, *he remanent members (if tlie hoard shall fill up the vacancy nr vacancies from among the miuis- tirs or memlKM's of the said united fliuieh.' The eighth clause enacts tlint tlio third section shall con- tinue in force until the number of fifteen, upon which occurrence the i'"""'- ''• ""ahi , 1 • , 1 .• II »1 IH' J IIKSIIV- board is to lie continued Ity tlie Tj.„nji d,, |„„ remanent nieiiiiiers rilling up vacan- cios from iiiiiong the ministers or members of the united churidi. By the teiilli section it was declared that the Act should come into force as soon as a notice was published in the Quebec Ollieial Gazette to the efl'eet that the union had been coiisiimiiiiited, and that the artichvs of union had been signed by the nioderiitors of the respective churches. "Oil the 14fh day of June 1875 the Synods of the four churches met at Montreal, and in each a resolution was curried in favour of union. In the Synod of the Pres- byterian Church of Canada in con- nection with the Church of Scot- laml it was restih ed, by a very large majority of its members, that tlie four cliurelies should be united and form one assembly, to be known as 'The GeiU'ial Assembly of the Presbyterian Church in Caniuhi,' and that the united church shouhl possess the siime authorities, rights, privileges, and benefits to which the Presbyterian Church in Canada in connection with the Church of Scotland was then entitled, except- ing such as had been reserve 1 by Acts of Parliament. The minority, which consisted of the a|)pellant,tlie Rev. Robert Dobie, and nine other members, dissented from the action of the Synod, ami protested that they, and those who might choose to adhere to them, remained and still constituted the Presbyterian Church of Canada in connection with the Church of Scotland. "On the loth June 1875 the majority of the Synod of the Pres- byterian Church of Canada in con- nt'ctiou with the Church of Scot- land, and the Synods of the other uniting churches, met in general assenil)ly, when the Articles of Union were signed by the modera- tors of each of the four churches ; and thereupon one of the modera- tors, with the con.sent and concur- s 2 276 B.N.A. ACT, s. 92 (13).— COMPETENCY OF PROV. ACT, Rev. Robeht renco of the rost, declared the four DoBiE V. Board ehurches to lie united in one church, TERuTclI'uRfii. represented by that its first general assembly, to be designated and known as * The General Assembly of the Presbyterian Cinirch in Canada.' Notice of the tinion liaving been thus consummated was duly published in the Quebec Official Gazette. " After publication of the notice the constitution of the board for managing the temporalities fund was altered, and the fund adminis- tered, in conformity with the pro- visions of the Quebec Act, 38 Vict, c. 64. In December 1878 tlie Rev. Robert Dobie, who, with the other members of tie protesting minority of 1875, and their adherents, main- tains tiiat they alone represent and constitute the Presbyterian Churcli of Canada in connection with the Church of Scotland, insti- tuted, by ix'tition to the Superior Court for Lower Canada, the pro- ceedings in which the present ap- peal has been taken. Tiie leading conclusions of the petition are to have it adjudged and declared (1) that the Legislature of Quebec had no power to alter the constitution of the board or the purposes of the trust created by the Canadian Act, 22 Vict. c. 66., and consequently that the Administration of the trust as carried on in terms of the pro- vincial Act of 1875 is illegal; (2) that the protesting minority cf the Synod of 1875, and its adherents, are now the Presbyterian Church of Canada in connection with the Church of Scotland, and that cer- tain ministers of the united churcli who were members of the majority had, by reason of the luiion, for- feited all right to iwrticipate in the benefits of the temporalities fund ; and (3), to have an injunction against the board, as then consti- tuted, acting in prejudice of the rights of the api)ellant, and others beneficially interested in the .statu- tory tr)ist of 1858. Ui)on the 31st Dec. 1878 the appellant's apjdi- cation was heard before Mr. Justice .Tette, Avho mi,de an order for sum- moning the respondents, and also issued an tH^mwt injunction, which the learned judge dissolved, nfter fully hearing both parties, on the 31st Dec. 1879, and at the same time dismissed the appellant's pcti- tion, with costs. This decisior. was, on appeal to the Court of Queen's Bench for Lower Canada, affirmed, in accordance with the o])iiiions of the majority of the judges. " The judgments of Mr. Justice Jette in the court of first instance [Superior Court, 27 L. C. J. 170 et seq.], and of Chief Justice Dorion and Mr. Justice Monk in the Court of Queen's Be>>.*ec. 129, to sustain its right to rejieal or alter an old law of the Parliament of the province of Canada, is in this case wanting, and that the Act, 38 Vict. c. 64., was not intra vires of the legisla- ture by which it was passed. " The general scheme of the B. N. A. Act, 1867, and, in par- ticular, the general scope and effect of sees. 91 and 92 ha\e been so fully coumiented upon by this board in the recent ca.ses of The Citizens' Insurance Company of Canada v. Parsons, and The Queen Insurance Company r. Par- sons [4 S. C. E. 215 ; in P. C. 26 Nov. 18S1, 7 App. Cas. 96; 51 L. J. P. C. 11; 15 L. T. 721; see above], that it is unnecessary to sjiy anything further upon that subject. Their Lordships see no reason to modify in any respect the princi- ples of law upon which they pro- ceeded in deciding those cases ; but ri.'Ui . 278 B.N.A. ACT, s. 92 (13).— INTERFERING WITH DOM. TBUIAN CUURCII. Jl, J Eev. Rodert in determining how fur thesi- prin- DoDiB V. 130AUD (.jpigg ,^ppiy to ti,(> present cjise, it oi iiESD\- jg necessiuy to couniclerto wbut ex- tent the circumsttiuces of each case are identical or similar. " The case of The Citizens' In- surance Company of Canada r. Parsons comes nearest in its cir- cumstances to the present, as in that case the ap[)ellaut company was in- corporated by, and deri\cd all its stiitutory rights and i)rivileges from, an Act of the province of Canada, whereas The Queen Insurance Com[)any was incorporated under the i)rovisions of the British Joint Stock Companies Act, 7 and 8 Vict, c. 110. In both cases the validity of an Act of the Legislature of Ontario was impeached on the ground that its provisions were ultra vires of a provincial legisla- ture, and were not binding unless enacted by the Parliament of Canada. It was contended on behalf of the Citizens' Insurance Company that the statute com- plained of Wiis invalid in res[)ect that it virtually repealed certain rights and privileges which they enjoyed by virtue of their Act of incorporation. That contention was rejected, and the decision in that case would be a precedent fatal to the contention of the appel- lant, if the provisions of the Ontario Act, 39 Vict. c. 2L,and the Quebec Act, 38 Vict. c. G4., were of the same or substantially the same character. But upon an examina- tion of these two statutes, it be- comes at once apparent that tiiere is a marked difference in the character of their respective enact- ments. The Ontario Act merely l)rescribed that certain conditions should attach to every i)olicy, entered into or in force, for insuring property situate within the pro- vince against the risk of fire. It dealt with all corporations, com- panies, and individuals alike who might choose to insure pro[)erty in Ontario — it did not interfere with their constitution or status, but retpiiied that curtain reasonable conditiuus should be held as iu.ser- ted in every contract made bvtln'in. The Quebec Act, 38 Vict.'c. Ul.| on the contrary, deals with a single statutory trust, and interferes di- rectly with the constitution uiul privileges of a corporation crciitcd by an Act of the province of Canada, and having its corponiti' existence and corporate rights in the i)rovnice of Ontario as well ii.>5 in the province of Quebec. Tiic l)rofessed object of the Act, and the effect of its provisions, is not to iiii- l)ose conditions on the dealings of the corporation with its tuiids within the pro\ince of Quebec, but to destroy, in the first place, the old corporation, and create a new one, and, in the second jdaw, to alter materially the class of persons interested in the funds of the eoi- 2)oration. " According to the principles established by the judgment of this board in the cases already referred to, the first step to be taken with a view to test the validity of an Aei of the provincial legislature is to consider whether the subject-mutter of the Act falls within any of the classes of subjects enumerate. ^4-rg' !vr 1m,9tMwm* * M t ^ \ >» 1*1 " ■* B,N".A. ACT, «. 92 (13).— CHURCHMEN & PRECEDENTS. 281 by its provisions. But the appel- lant is not u mere annuitant, and bis right to an annual allowance does not constitute h's only con- nection with the fuml. He is like- wise one of the cominutors, — one of the persons by whom the fund was contributed for the purjwses of the Act 22 Vict. c. 66.— and in that capacity he has a plain inte- rest, and consequent right, to insist that the fund shall be administered in strict accordance with law. " The second objection is deriveil from the resolutions in favour of union carried by the majority of tlie Synod of the Presbyterian Church of Canada, in connevbo retain their connec- tion therewith, and who have not ceased to be ministers thereof, and \Qi ;io other l)"v•^ose whatever.' It is obv. tsly J ,wj.()edi>mt to make any declaratio'i i,f that kind. It would be a mere repetition of the language of the Act of 185S, by which the trust is regulated, and would decide nothing as between the parties to the present suit. " The appellant also seeks to liaxe it declared that six reverend gentle- men who, at and prior to the Union of 18-75 were members of the Presbyterian Church of Canada iu connection with the Church of Scotland, have ceased to possess that character, and that they have no right to the benefits of the teui- poralties fund ; and he concludes for an injunction against the re- spondent corporation making any payment to them. Their Lordships are of opinion that these are matters which cannot be compe- tently decided in the present action. Their decision depends upon the answer to be given to the question, which church or aggregate of churches is now to be considered as being or representing the Presby- terian Church of Canada in con- nection with the Church of Scot- land, within the meaning of tiie Act 22 Vict. c. (50 ? But the two churches which appear from tlic record to have rival claims to that position are not represented in this action ; and, of the six ministers whose pecuniai'y interests are as- sailed by the appellant, he has only called one, the Reverend Dr. Cook, as a respondent. That question between the churches must be du- iermined somehow before a consti- tutional board can be elected ; and, unless the Dominion Pailiameut intervenes, there will be ample opportunity for new and protnictcl litigation. It cannot be determined now, because the appellant has not asked any order from the Court in regard to the formation of the now board, and has not made the indi- viduals and religious bodies in- terested parties to this cause. " Substantial success being witii the appellant, he must have his costs as again.' Code of Civil Procedure, but also those of the Civil Code, by an addition made under these circum- stances, nnd of which it knew nothing, nor is it conceivable that the commissioners themselves, in direct contravention of the instruc- tions they had received, not only to alter the effect of the code us ado])teper Ciumda, and in that respect placed tlic claims of the Crown on the sainc footing as these of private individuals. This i.s, perhaps, an unimportant circumstance, but still it is another instance that the h'gis- lature coidd have no intention to extend by the Code of Civil Proce- dure the privileged claims of the Crown established by the Civil Coile." His Lordship then said tlirre were several articles in both codes on this very cpiestion of privilege which bore intrinsic evi- dence that there was no intention of limiting or extending by the Code of Civil Procedure the privi- leges established bv the Civil Code, and referred to art. 2008 of Cnil Code and art. 605 of the Code of Civil Procedure. " Apart from the question of intention, which, ac- cording to our art. 12. C. C, is the primary and controlling rule of interpretation of our laws, is there anything in art. 611 to repeal or supersede the privileges of the Crown against its Comptables, and to substitute another and more ex- tended principle in its place ? As we have already seen, the two codes nuist be construed together, and by pliicing in juxtaposition the several articU'S of both referring to the pri\ileged claims of the Crowu, we siiall be able to arrive at their exact meaning. The first of these articles is 1980, which, in general terms, refers to statutes creating special privileges in favour of the Crown. Art. 607 of the Code of Civil Pro- cedure completes the article by eniunerating the subjects to which the.se statutes refer. Then art. 1994 C. C. confers on the Crown a general privilege over all the pro- perty of the Comptables. By adding to this article the provi- sions of art. 611 of the Code of Civil Procedure, the two will read as follows :— Art. 1991. C. C. ' The claims which carry a privilege upon moveable property are the I'ollowing, and when several of them e(un(> together they take precedence in the following order, &c. : — 10. Tiu^ chiims of the C^rown against persons accountable for its moneys.' Art. Oil. C. C. P. 'In the absence of any special privi- lege the Crown has a preference over chirographic creditors for sums due to it by the defendant.' The meaning of these two .several arti- cles is that the Crown, by art. 1989, ha., special privileges aftecting par- t.'. .ar property, whi(di, according to art. 607, are to be paid by |)reference over all other creditors on the property subject to them. The art. 1989 establishes the riglit, and art. 607 the rank. Then art. 1994 gives to the Crown a general privilege against its Comp- tables, that is a i)rivilege attaching to all the proi)erty of its Comptables, which in its order comes after all the other privileged claims; and art. 611, which is a mere rule of procedure, a direction to the officers of the court how to distribute the moneys levied (see title of the .sec- tion and paragraph in which it is placed), says : ' In the absence of any sjiecial privileges (that is in the case that the Crowu has no special privilege, for if it had any its claim shoidd, according to arts. 1989 and 607, be paid out of the proceeds of the property, subject to such special privileges in preference to all other creditors) the Crown has no prefer- ence over chirographic creditois (that is the ordinary chirographic creditors) for sums due to it by the defendant' (that is by the debtor of a privileged debt under art 1994). My reading of these com- bined articles concerning the privi- leged claims of the Crown is that, when the Crown has a special privilege, its claim shall, according to art. 607, be paid by preference to all other creditors (which terms ExCUASflE IUnk ok Can- ada l\ TUK QlKKN. ■t^o-i it II I 288 KN.\. ACT, s. 02 (13) —FRENCH LAW. i I KxCIIANdK Hank ok I'aM" ADA c. TlIK Ql-KKN. H' niny hnvo agnin to ho limited in cfitMin ('ontiiigt'iK'ios not ot'curriiig in tilt' proscnt cnso), and tliat wlicn tlic Crown Ims no special prixilegt', its otluM' |)ii\ilt'<;e(l claims, tliat is those mentioned in art. IftOJ, shall Ih" paid in i>i'eference to flio.se •? tlie ordinary ehiiographie creditors. Effect is thus given to tlie provi- sions of l)oth codes according to tlieir respective objects and to tlie intention of the legislatnre." His Lordshij) then cited, Troplong, Des Prixilcges an except in such special cases as inn, be shown to fall under some otIuV law. Probably such was the true effect of the 'statute 1 1 Geo. .3. c. 83., but at all events there Inis been an uniform current of deci- sion to that effect in the colonv, dating back forty years or so be- fore the date of the codes, which ought not now to be questioned. "The next (luestion is whether the French law gave to the king a priority in respect of all his debts, or in respect only of tho.se due from ' Coniptables.' There dtn's not seem to have been any difference of opinion on the point in the colony. The three judges who de cided for the Crown upon the ul mate (juestion, and the two jiidj' who decided the other way, all thought that the priority given by the French law extended only to ' Coniptables.' And in the appel- lants' case filed on the appeal from Mr. Justice Mntliieu it is elabor- ately argued that the English law and not the French prevailed in Lower Canada, but it is never suggested that the priority now eliiiincd coidd be claimed under the French law. That suggestion, however, has been made upon this appeal to Her Majesty, and has been strongly contended for at the bar. *' The matter rests wholly upon the French authorities, and it ap- pears to their Lordships that the passage cited from Pothier {sec Record, pp. 82, 83) is conclusive of the question unless it can be con- tradicted or explained away. It is not conceivable that the advisers of Louis XIV. should, if an unlimited priority existed, address themselves B.N.A. ACT, s. 02 (13).— BASIS OF CODES. 289 III till' c.viii't (lotlnition l>y odict of M limitctl priority, or that Potliicr .JiDiilil coinincnt on timt oilict, nil wiilii'iit liny rcforoncc to tlic more >«-i't'pinjj; iii!t>. But so t'lir from lieiii^ contradicted or cxpiiiined iiwin, till' passage in cpicstion is Mijiportcd and cuipliasi/.cd l>y later itiiilioritit's. Tiii'rc is tin- case ro- |,„,i,.(l l.y Sircy, IHV.i, p. 3(50 (Hi'i'dni, p. Xli) sjiowinj; one lin\it of till' icing's priority, nnincly, tImt iiis rigiit against '(.^onipt- iililcs ' did not cxfciid even to piir- vi'vors wiio luigiit liavc liccn paid ill lulviiiicc. 'I'licrc arc tiic iintlio- litii's cited in tlic note to that ease, who all draw the distinction be- twi'cn the one kinil of Crown (Iciitor mid the other. There is the iiiitliiiiity of the Nonvean Deni.sart, \'(i. t'oiii|)tal)les, e.\[)ressly drawing llic distinction between the oilicial (liiits of the 'Coniptalde' and his pi'ivat" dcl)ts tine to the king, and till' case of the Sieiir Bonvelais, It May 17 IS, which illnslrates that (li^tiiution (Kecord, p. KJO). "If the priority contended for exited in the French law, there (MiiM be no dilliciilty in producing iintliority to that eilVct. English tixt-books and ivports abound with iissfi'tions of the king's prerogative IIS we know it. But absolutely no iiiitlioiity wa.s produced in ' the colony in opposition to the decision (if Mr. Justice Mathieu, and now nothing is jjroduued except the work of u Counsellor of State wiiting in the year 1(532. "Taking the French law to be a- laid down by the whole of the juilfjt's below, tlie next question is, what is the proper construction of Hit. 191)t of the Civil Co.le ? And the only difficulty in it when con- -iilered alone arises from the use of the expressions 'ses comptubles* "lul 'persons accouutable for its moneys.' Here again we ha\e TOiiiplete accord among the judges in the colony, that the expressions inilicatc not'all the debtor.s of the Crown, but a limited cla.ss of such liebtors, known to French lawyers S 2340. Ql'KR.N. under the name of ' Comjitables.' Ex< iuxue The stit)rige>.t expression of oiiinion *'"' ".' ' *^" to tliiit etll'ct is uttered by the judges who decide(,o resjM iisible,' It stands in t le code as it is likely u term of art would M.iiid, as a noun sub- stantive, which explains itself to lawyers liy itself, and does not re- ([iiire the addition of any explana- tory words, such as in the English version are found nccessiuy because there is no corresponding English subslantixc. The draftsnien of the code were working on le existing basis of French law. I'hey Wi're in the nmin niiip[)iug out a system of French law. Jt would be a marvellous thing indeed if persons st» engaged were to use a technical term with a di linjte meaning well known to Freiii'h lawyers, mid pre- cisely adajited to the po.sitiou it occupies in the code, and yet should intend to use it in some other sense, which is not its technical .sense, for which it is not shown to be ever used, ami for which other words are used. " Even the general dictionnrie.s, five or six of which their Lordships have consulted, do not lend any eountenaiice to the respondent's argument. *' The Academic first speaks of the word as a noun adjecti\ c thus : — ' Qui est assnjetti a reiidrecompte; ofHcier; agent coini)tuble; les re- ceveurs sout coniptables. Je ne veux point de phiee d'emploi comp- tablc,' which Tarver translates, ' I don't want a place where accounts are kept.' " As a substantive it is said to be thus used : — ' Les comutubles T 290 B.N.A. ACT, s. 92 (13).— CONFLICT BETWEEN CODES. I" I J ;i| ExcHANOB sont s>ij(>ts a etro roclicirhi^s. Cost ll.VNK Of Can- m, i,qjj eoiiiptiihlt',' i.e., a good f"-^ '■• '''"-^ nccoiintnut. " Livvwiux siiy.s very iimeli tlic .'iaiuc as tho Acadt'inie. Both show tliat tho word is used uictapliori- cally, as * Nous soinuR's couiptalilos di' nos taluiis.' " Littiv defines thf adji-ctivc thus: — ' Qui a lics conipti's a tcnir et a rench'i'. OUificr, a<;ciit conip- talile'; and lie gives the metapho- rical use. Of the substantive lie siys, ' Celni qui est tenu de rendre c'ouipte de deiiiers et de leur eniploi.' " Bouillet, in his ' Dictionary of Conmieree,' says of the word as a substantive, ' Le mot s'ai)i)li(iue a toute personne cpii est assnjettie a rendre compte des affaires qu'elle a ger^e.' " Coutanseau and Sjiiers render it in English, 'An accountant. A responsible agent.' " Their Lordships ha\t' not found anv trace of its being used in the general sense of a debtor or person under liability except in metai)lior. " Tarver and Spiers render ' debtor ' simply by tlie word ' de- biteur.' "Coming down to its special use in th*' instrument now being con- strued, their Lordships have found many i)assages in the Civil Code whoi'c the words ' comptable ' and 'compte 'are used .strictly of those who are bound to account for par- ticular transactions : — "As of a tutor, ai't. .'iOS ct .srq. of an heritier bencKciere, art. ()77. ofanexecutor,art.J)I3('^.v('«/. of a husband for his wile's goods, art. liUo. of an agent, an. 1713. of partners, art. IHOH. "They have not been referred to, and they have not found any pas- sage in the Ci\il Code where these words are used to denote generally a debtor or person inider lial)ility. " For creditors and delitors the word.''- used are 'creanciers' and •debiteurs': .srr Tit. IIF. through- out, and particulaily caj), 7. " To express general liabilitv the code u.ses such verbs as 'tenir,' ' repondre,' ' charger,' and their in- flexions or derixatives. " If there be any difference be- tween the French and English ver- sions, their Lordships think that in a matter which is evidently one ui French law, the French version using a French technical term should be the leading one. There might be cases in which such u (|uesti()U would ai-ise. But it does not arise here. The expression 'per- sons accountable for its monev> ' is not calculated to convey to the mind of an English lawyer the no- tion of 'in ordinary debtoi' or of a banker. As between a banker anil his customers, he, by English law, is an ordinary debtor, and the amount which he owes them is not ' their' money, nor is he 'account- able' for it in any but a populi'v sense. Arts. 1778 and 177!* of the Civil Code seem to be foinideil on the same view. Mr. Justiei' l{ainsay says that to call a debtor accountable to his creditor woiilil be a perversion of language. Their Lordships, without going so far, cannot see why, if the (h'aftsinen of the English version intended to speak of debtors, they should not have used the common term for llie |»urpose. Or rather they woulil liave used no term at all, but would simply have mentioned the claims of the Crown as tliey have mentioned the claims of the \('nilor and the lessor. In fiic* the terms used are strong evidi'nee that the English m this passage xcrsion is really a translation from thi' French, and that in translatiii;; a French, technical term for which there is no English equivalent, the draftsmen have used the best peri- phrasis they could think of. 'I'heir words are (piite applicable to a ' Comptal)le,' i.e., an officer collect- ing revemie, bound to earmark the fuinls, to account for them, and not to use them as his own. Such is the position of tin officer under the Act 31 Vict. c. 3. s. 18, as .set out in B.N.A. ACT, s. 02 (13).— PURPOSE OF PRE. CODE. 291 eonfliet of (ill with lOJ)! or tlio Exciianoe iiocessity ol' iiuxlifyinjj; tlio con- struction of one or tiic other. But tlio (hity of the jud^o is, if pos- sil)l(', to roconeilc the two, and for that i)ui|)oso to look iit nil relcviint circunistiincos. ■•ippcllants lit the bar hav(! 'Hi pres.sod somewhat too alisohitelv the "luincnt that a Proccduro till' Record, p. GH. Thoy may pos- silily include some other cases, l)ut tlicv an? not applicable to a hank iv(rivin<; money on deposit or cur- iviit account. "('oustruing the words accord- inir to the technical sense of 'C'oniptahles,' we come to tlie last (iiu'stion ; which is the construction of alt. Gil of the Procedure Code. "Ill this aiticU', the word 'de- fcnilimt ' is used with strict nc- ciiiiii'V in reference to the subject mutter of the tith- under which it i« found, but must receive a rea- xiimble latitude of construction in ii|i]ilviiij; the article to cases M'her(> tlii'ic is no defendant. And it would seem that the words ' in the iilisciice of woidd reipiire to be ii'ikI in the meaning of ' subject til"; *or it can hardly have been iiu'iint that the rule was not to iip[)lv !:: any case where there were some special [)rivilegcs to be iiiiswered. When construed in all oiliiT respects literally, the article (•(■rtiiinly gives to (he Crown tlu> into di'tail the i)riiiei|)les laid do ]Unk ok Can- ada /'. Ql'KKN. be construed to"('ther in this part le man priiPiity claimed for it in this suit. Hill then it comes into contlict witii art. 1994 of the Civil Code. " In the tirst place, by giving to till' frown a priority for all its cliiinis, it swamps the limited |iii(irity given by the 10th head of int. 199J, and renilers that head iiiiiiioaiiing. Rut beyond (his (h(>re i-iictual iiiconsis(ency between the hvii articles. According to the liti'ral construction of till, the Crown has priority over funeral I'Xlii'iiscs and f>(her classes of ilcl its which by 1991 have priority oviT tlie Crown. " It would seem tha( (he majority 111 tile (Queen's Rench paifl no iiiii'iilion (() (his conflict. They Niy they are asked to ' set aside ' lill on (lie grouiiil that it got into ilii' code in some wrongful way. llii'v were asked to do so, and wiiv (jiiite right in their n'fusal. Hut they were also asked to con- Miiic tile codes as they stand, iiiiil us Mr, .lustiec Matliieii had 'I'liit'. Thev do not notice the tie; ord mate •hi 1 contravene th' 1> iriiiciples o ('111 .f th f roin Ci\il Code, and it is c art. (i05 that the two were be- lieved to be working in harmony. And when the Procediin? CoiU' is found to ovcrlai) the Civil Code, am UK that the function of the Procedure Code is in this par( of it a siibor- ilinate one favours (he conclusion tha( it is (he one (o b- dified. HK Code is not inteiideil to enact sub- stantive law. and that this [lart of the Procedure Code is only in- tended (o gi\(' directions to the courts how fo carry the rules of the Civil Code into effect. Some of the articles of the Procedure Code {e.f/., ar(. GIO) do create or establish rights r,(>t touched by the Ci\il Code. The (wo codes should just ns if the articles of the Pro- cedure Code followed the coi're- s[)onding articles of the Ci\il Code. " So reading them, we iind that tl 1 purpose of this part of the Procedure Code is (o carry wn in (he Ci\il Code, whi<'li are re- peated in the form of directions how money is to be distributed. And where fresh classes of [iriori- ire established, thev are sub- not in(erferiii"r widi the largt'i' classitication of the Civil Code. Of course it could he no part of the Procedure Code to 1 so it becomes necessary to xlifv (he one or (he otlier, the fact •' 'I'hal (here shoulil hiive been any delibera(e in(eii(ion of giving a large e.\(ensioii of privilege to the Crown by the indir(!ct metluxl of inser(ing a provision in a group of clauses relating to a judicial dis- tribiUion of [)roper(y taken in exe- T 2 iVif 1 ,' iS B' m 1 fi ; .<;iei 1 fill?' .11 i!:!:i uv : 1:: ! sf: • P ' llv ,■ 292 B.N.A. ACT, s. 92 (13).— LTMITN. OF PREROGATIVE. exciianoe IUnk op Can- AD.V r. TlIK UUEEX. M.VUITIMF. BA-NK of ('.\X- AD-V r, l\y\.- Gen. di- Nkw liRfN.'iWICK. cutioii, i.s a fhiiif^ liiy tiio fact that at tlio same instant tho legislature was «'niia<{e(l in cutting down throughout Upper Canada the vorv .same privilege whieli it is held to ha\e lioen setting up tlu'oughout Lower Canada. " The foregoing are their Lord- ship.s' reasons for eoneluding that full effect should he given to art. li)i)l, and that art. till should consecjuently he nioditied .so as to he reail in harmony with the other. There i.s (litiieulty ahout it, as tliere always is in these cases of inconsistency. Follo\vin''^^ "J^ t.'AN- although their Lordships reversed ^"^.'ofNew the judgiuent of the court below, ISku.nswick! and negatived the preference claim - elration of affairs in which they had a common interi'st, each province retaining its independence and autonomy. TMiat object was ac- complished by dislriimting, iM^tween m^ !'-.'-m f f H \\f. I* Maritime Bank op Can- ada I'. Rec- Gbn. op Nkw Brunswick. 294 B.N.A. ACT, s. 92 (13).— PROVINCIAL INDEPENDENCE. the Dominion iind llic ])ioviiiTOS, all powers I'xi'cutivt! and lc the the passiny the Goveriior- Ceneral, who has also the power of dismissal. If the Act had not com- mitted to the Governor-General the jxiwer of appointing and removing Lieutenant-Governors, there would base iteen no room for the argu- ment, which, if pushed to its logical conclusion, wouUl prove that the Governoi'-Gcneral, and not tlu' (^ueen, whose Viceroy he is, became the sovereign authority of the pro- vince whenever the Act of 1S()7 came into o[)eration. Buttheaigii- ment ignores the fact that, by sec. 58, the appointment of a jjrovincial (Joveruor is made by the * Gover- nor-(Jeneral in Council by instru- na'Ut under the great .seal of Canada,' or, in other words, by the ExecutJM' (}o\t'rument of tlie Do- minion, which is, by sec. 9, ex- pressly declared 'to continue anil be vested in the t^neen.' There is no constitutional anonudy in an executive officer of the Crown re- B.N.A. ACT, s. 92 (13).— LT.-GOV. AND THE CROWN. 295 ceiving his nppoiiitmoiit at the liands of a {governing body who liavi' no powers and no functions ixccpt as representatives of the Crown. The aet of the Governor- (ii'iii'iiil and his Council in niakin<; ihe appointment is, within the iiR'aning of the statute, the act of the Clown ; and a Lieutenant-Go- vernor, when tti)pointed, is as much the representative of Her Majesty, lor all purposes of provincial go- vernment, as the Governor-General liiiuself is, for all pui'poses of Do- minion fjovernnieiit. "The point raised in thisajjpeal, as to the vestin}^ or uon-vestin<>; of the public property and re\enues of each province in the sovereign as to be manufactured from them.' 'The intention was to give the security of the logs and of the lumber as it was manufactured.' ' We were to give them a receipt at once upon the whole of the logs, and as the logs progressed we uuule a continuation to where they were. ' * Warehouse receipts were to l>e furnished until the debt was ixiid.' " 'J'here was not, as in the ease of the Federal Bank, any a.ssign- raeiit to the respondents of Petei' Christie's rights under the agree- ment of October 1887. It is clear, from the account which he gives ol the transiiction, that Alexander Christie deilt with the respondents, as the rep.'esentative of his firm. and also as representing his son Peter, from whom he held a power of attorney. Peter Christie took no part personally in any of the tran.sactions, either with the Federal BXA. ACT, s. 92 (13).— NEGOTIABLE INvSTRUMEXTS. 297 Bank or witli the respondents. From tirst to last, so far as his interests were couceriied, all ar- nui"enients were made, and all (loi'iwnents connected with them, whether promissory notes or ware- house receipts, were executed and snbseiibed by his father on his iH'half. " Upon the faith of the agree- ment the respondents madi' advances to the amount of I5o2,()00 upon promissory notes of Peter Christie, in(h)rsed to them by his attorney iUHJ also by the lirm. On the 20tli June 1888, they received a warehouse receipt for seventy thou- sand |)ine saw logs marked 'C.K.,' which were described as then stored in the hikes St. Jean and Couclii- liiing, cii route to Bradford mill. These logs represented the whole pine timber which had been cut for tiiuisportation to Bradford during the season of 1888 ; and as they arrived at their destination, and were siwn ui), fresh receipts were given to the respondents, contain- ing a description of the timber in its manufactured state. Portions of the lumber were from time to time .sold by the tirm, with the consent of the respondents, and the proceeds applied in reduction of their advances. '• The last of the series of receipts (le|iosited as security with the re- spon(h'nts is dated the 1st January 1H89, l)y which time all the logs covered by the first receipt of the 20th June 1888 had reached Brad- ford, and hud been converted into lumber. It includes the whole of the timber forming the original subject of the security which then remained un.sold, and in the posses- sion or custody of tht^ firm. Though not in precisely the stime form as the rest, it may be t^dcen as a specimen, becau.se it was not contended that the differences of form were material. It runs thus :— " ' The undersigned acknowledges to have received from Christie Kerr & Co., owners of the goods. wares, and merchandise herein Tesnast u. mentioned, and to have now stored ^'•J^" Bask in the premises known as the Brad- "^ Canada. ford sawmill yard, adjoining the Warehouse % illage of Bradford, in the county Receipts Case. of Simcoe, the following goods wares, and merchandise, viz. : — Five millions eight hundred and fifty-three thousand nine humlred and twenty-four feet of lumber, one hundred and ninety -three thousand of shingles, all marked ' C. K.,' and manufactured during season 1888 out of saw logs cut in the townshii)s of Oakley and Hin- ilon, and transported to Bradford mill and cut there, which goods, wares, and merchandise are to be delivered pursuant to the order of the .said Peter Christie to be in- dorsetl hereon, and are to be kept in store till delivered pursuant to such order.' " ' Tins is intended as a ware- house receipt within the meaning of the .statute of Canada, intituU'd ' An Act relating to Banks and Banking,' and tlu; amendments thereto, and within the meaning of all other Acts and laws under which a bank of Canada may aetiuire a warehouse receipt as a .security.' " This receipt was, like its prede- ci'ssois, signed by the firm, and by them iiulorsed to Peter Christie, and was tlien indorsed on his be- half by Alexander Christie, and delivered to the respondents. " It is not matter of dispute that the timber of which the n'spon- dents took po.sst^ssion, after the in- solvency of the firm, was included, either as saw logs or as lundier, in all the receipts which they rectMved as security. But it does not appear to their Lordships that tliese receipts could be regarded as ne- gotiable instruments carrying the property of the timber, if their efiPect depended upon the provisions of the Mercantile Code which is contained in the Revised Statutes of Ontario, 1887. " The Mercantile Amendmeut Act (c. 122. of R. S.) deals with it Ml l:i' «''■ ;'in ! ! Thnsant I'. Union JUnk OP Canada. AViirt'liousf Receipts C'tuse. 298 B.N.A. ACT, s. 02 (13).— PROPERTY v. POSSESSION. w. Wiircliousc icct'ipts and (itluT nicr- t'lintilo (loeiiuu'Uts, wliicli arc riW-r- liml to triiiismit tlic property ol' floods without iictiiiil (Iclivci'v. 'I'liiit stututf not only rccojiniscs till' nt'f^otiahility of warchoust' iv- t'cipts by custodiers wlio are not tlie owners of tlie f.;ooils ; it extends the privilep' to receipts liy one wlio is botli owner and eus'odier, but tliat only in eases where the jjrantor of the receipt is, from the natiuc of his ti'aile or callin<^, a custodiei- for others as well as himself, and there- fore in a position to {jive receipts to third parties. 'J"he receipts in (piestion do not comj)ly with the lecjiiirenients of the Act, because it is neither averred nor proved, that the firm, in the course of their business, had the custody of any ffoods except tlieir own. "It may also be notict'd that c. 125 of the Revised Statutes enacts that when goods are transferred by way of conveyance or mort- gage, possession iK'ing retained by the transferor, the deed of convey- ance or mortgage, if not didy regi.stered, shall be absolutely null and void as against creditors of tin- grantor or mortgagor. " In these circumstances, certain l)rovisions of ' The Bank Act ' which was passed by the Legisla- ture of the Dominion (4G Vict, e. 120.), and is specially referred to in the receipts held by the respon- dents, become important. Although now repealed, the Act was in force during tiie whole period of these transactions; ani| vests in the bank 'all tin.' right .ind title of the previous holder i,y owner thereof, or of the peixm from whom such goods, ware>, or merchandise were received or m-- (piired by the bank, if the wniv- house receipt or bill of lading is made directly in favour of tin- bank, instead of to the jirevious holder or owner of such goods, wares, or merchandise.' ,Sub-scc. 3 of the .same clause provides that if the previous holder of siicji warehouse receipt or bill of ladiii).' is the agent of the owner, the bank shall be vested with all the right and title of the owner, subject to his right to have the goods retransferri'd to him, updii l)ayment of tins \viirr, that ill,' ti'iiili' or I'allint; in wliirli lir is ii.lcii.-iililv cnjiaf^i'd inu.st lu' niii! whii'li mliiiits oi iiis il out, the airiiii<;t'- iiicnt tiiade iu JiitU' 18HH, liy Ali^xaiicU'r Cliristie aiul Mr. liiieliaiian, was ono lu'twcen tlic rospondents aiul the liiiii, as wi'll as between tbeiu and Peter Chri.stie. " It does not admit of doubt that the advauees obtained from I lie bank were intended to be for tile n.sc and benefit of tlie linn. Although the promissory notes were signed by his father as re- presenting Peter Ciiristii", it is elear tiiat they were signed for the accoinuiodation of tlie linn, and that, in any ipiestion Ix'twecn him and the firm, Peter Christie was a mere surety. In a (juestion with the respondents he was no doubt the primary debtor, but the linn, as indorsers of the |>roinissory notes, were ai.so under a direet liability to the respondents, for whieh seeurity might Ih" given. And it is a material eirennistance that the evideiiee of Alexander Christie, whieh has already lieeu eited, is only eonsistent with the view that the firm undertook to give the respondents the security of the timber. The whole eoiirse of dealing between the parties is also con.sistent with that view. The advances appear to have been paid over to the fiini, and the warehouse receipts for tiie timber to have been delivered by the linn to the respondents; and it does not appear that either the money or the receipts ever passed or were intended to pass into the possession of Peter Chri.stie. "Their Lordships also came to the same conclusion with the ma- jority of the learned judges, that, jussuming the provisions of the Bank Act to Ih' intra vires, the rec«'ipts in question were such as the firm could give and the re- s|K)ndeuts could lawfully receive. The obvious effect of sec. 54 is that, for the purposes of the Bank Act, a warehouse receipt by an owner of goods who carries on, as the firm did, the trade of a aaw- iniller, is to lie as ellVctual ns il it had been granted \ty Ids Imilc,. although his business iiitiv lie coii. lined to the maiiufaeture uf hj^ own timber. That enactnicnt plainly implies that such a nciihi is to be valid not only iu the liniids of the bank, but in the hands dt „ borrower who gives it to the liaiiii in .security of a loan. Their Lord- ships do not think that the provi- sions of sec. 53, sub-.sec. 2, which are somewhat obscure, can be iiijij to cut down the phiin enact men ts(,f see. 5-i, cspwially in a ease wiii'ic the grantor of tlie receipt ImmimIi delivers it to the bank as a seciiiitv for his own debt. " It seems clear that the linn, so long as they were solvent, eoulil not have refused to make delivciv of all the tinilH'r in their [tossessioii to the resjiondeiits, allhougli liic legal ownership was still with tiii' linn. But on that assiiniptiun, and a.ssumiiig also that their tiiiv tee had no higher right than the insolvents, the (piestion reiimius whether a creditor having an ii>i- signment from the trustee loiild plead the nullity enacted by cap. 125 of the Revised Statutes. Their Lordships, before dealing with these ([uestions, thought it expe- dient to deteniiine for themselves whether the provisions of the Bank Act to which the appellant take.- exception, were comix'tently eii- actecl. "The appellant's plea against the legislative power of the Domi- nion Parliament was accordingly made the .subject of further argu- ment ; and, the point being one of general importance, their Lordships had the advantage of being assi.sted in the hearing and consideration of it by the Lord Chancellor [Lord HerschellJ and Lord Macnaghteu. The question turns upon the eoii- striiction of two clauses in the British North America Act, 1807. Sec. 91 gives the Parliament of Canada power to make laws in re- lation to all matters not coming within the classes of subjects by the B.N.A. ACT, H. 92 (13).— BANKING v. CIVIL RIGHTS. 301 Act t'XfluHivcly iissif^iifd to the l,.iiisliilnrt's of tlif provinces, and iiKo exclusive iejjisltilive aiitliol'ity ill rcliitinn to certiiin eninnerated ^iilijecls, tlie lil'teentli of wliieli is ■Hanking, incorporation of banks, mill lilt' issue of pajuT money.' Sec. U'2 assigns to each provincial Ic'lsliiture the exclusive right to iimkc laws in relation to the classes of siihjects 1 herein cnnniorated; and liif thirteenth of the enumerated ciiisscs is ' Property and civil rights in the province.' "Statutory regulations with re- >|Mrt to the foi-ni and legal effect, in Ontario, of warehouse rccei[)ts, and other negotial)le docinnents, which pass the property of goods without delivery, nnquestionahly relate to property and civil rights in that province; and the objection taken hy the appellant to the pro- visions of the Bank Act would lie nnanswerahle if it couhl he shown that, hy the Act of 1HG7, tin," I'ar- lianieiit of Canada is ab.solutely de- liarred from trenching to any ex- tent upon the matters assigned to the provincial legislatnre liy sec. 912. Jhit sec. 91 expressly declares that, 'notwithstanding anvthing in this Aft,' the exclusive legislative au- thority of the Parliament of Ca- nada shall exfeml to all matters eoniing within the enumerated classes J which plainly indicates that the legislation of that Parlia- ment, so long as it .strictly rt'lates to tlies(( matters, is to he of j)ara- inount authority. To refuse effect to the declaration wonld reinler nugatory some of the legislative powers specially assigned to the Canadian Parliament. For ex- ample, among the einimerated classes of subjects in .sec. 91, are 'patents of invention and dis- covery,' and ' copyrights.' It would Im' practically inipossiblo for the Dominion Parliament to legis- late tipon either of these subjects withoiit affecting the property and civil rights of individuals in the provinces. "This is not the lirst occasion on which the legislative limits laid down by sees. 91 and 92 have been consichu'ecliiy this Board. In Cnshing r. Dupuy [5 App. ('as. 409; xpe aiitt; p. 80], their Lordships had before them the \ery same (piestion of statutory construction whi<'h has been raised in this appeal. An Act relating to l)ankruptcy, passed i)y the Parlia- ment of Canada, was objected to as iieing tiltrn vires, in so far as it interfered with property and civil rights in the province ; but, injis- mucli as ' bankruptcy and insol- vency ' form one of the classes of matters ennmerated in sec. 91, their Lordships u])held the validity of the statute. In delivering the judgment of the Board, Sir Mon- tague Smith pointed out that it would be iin]»ossible to advance a step in the construction of a scheme for the administration of insolvent estates without interfering with and modifying some of the ordi- nary rights of property. " The law being so far .settled by j)recedent, it only remains for consideration whethe:- ware- house i('cei|)ts, taken in security by a bank, in the cour.se of the business of banking, are matters coming within the class of subjects described in .sec. 91, sub-sec. 15, as ' banking, incorporation of banks, and the issue of paper money.' If they are, the provisions made by the Bank Act with respect to such rectipts are intra vires. Upon that point their Lordships do not entertain any doubt. The legis- lative authority conferred by these words is not confined to the mere constitution of corporate Tiodies with the privilege of carrying on the business of tmnkers. It ex- tends to the issue of paper cur- rency, which necessarily means the creation of a species of per- sonal proiierty carrying with it rights and privileges which the law of the provmce does not, and can- not, attach to it. It also compre- hends 'banking,' an expression which is wiile enough to embrace Tenwant c. L'nio.v Hank or (JANAUA. Wariliouse Heoeipts Case. w^ 1 I, 302 B.N.A. ACT, M. 02 (13)._BANK PUrVILEGKS. TrnnA!«t V, I'nikn Hank (If Canada. AVnrchoiiHc Uci'L'ijltS Vl\S Att.-Of.n. (Out.) Art. fvcrv trimsiiL'tioii {■oiiiiiif; within tile li'jj;itiiimti' liiisincss of m liankcr. "'I'lu' npppliniit's coniiM'l iiiti'illy vriitiirctl tit (lis|)iitt> tlmt the it'iid- iiij; of money on tlio security of pioils, or of (lociiincnts I'cprt'scnt- 'u\'fi till' |ii'o|icrty of l;oo(|s, whs ii |pr(t|H'i'lmiikinfi ti'iinsiiction. Tiicir chief t'onlc'iition WHS that, whilst the Lejlisliitiiic of Caiiiitla had power to deprive its own creature, the l)ank, of privilcf^cs enjoyed l>y olhei' lenders luider the provincial law, it had no |»owcr to cotd'er upon the hank any j)rivilc};o as a lender, wliich the i)ro\ini;ial law does not recof^nise. It inie;hl enact that a scein'ity, valid in the case of anntiiei' lender, should lie invalid in the iiands of the ))ank ; hut could not enact that a seciu'ity should lie availahle to the hank, which wouhl not have heen enee- tual in the hands of another lender. Jt was said, in support of the arfiunient, that tlie first of the^e thin<;s did, and the second did not, constitute an interference with property and civil rights in the province. It is not easy to follow the ilistinction thus su<;j;ested. There niu.st ho two parties to a transaction of loan; and if n security, valid according; to pro- vincial law, was made invalid in the liands of the lendei' l)y a Dominion statute, the civil rij^hts of the horrower would he ail'ected. l)ecansc lie could not avail himself of his pro[)erty in his dealinfjs with a hank. "Hut the arffument, even if well founded, can nft'ord no test of the lejiislative ])owers of the I'arlia- ment of Canada. These depend upon sec. 01, and the power to leii(in littni rins: In V. V. Feh. 2+, ( IHOI] A, C. IHO; (i:{ L. J. I'. C. .■)0: 70 Ii. T. i);iH. The followinj: judgment, reversing the court Im'- low. was delivered hy Lord Iler- sehell. L.C. [there heing also pre- sent Loi'ds Watson, Macnagliten, and Shanil,and Sir KichardCoueli] : " Tiiis appeal i^ prcsenteil hv the Attorney-(}encral of Ontnrie against the decision of the Coiul of Appeal of that province, "The decision complained of was an answer given to a question referred to that court hy the Lieii- tenant-trovernor of the piovinei' in pursuance of an Order in Council. " The ipiestion was as follows : — "' Had the Legislature of On- tario jurisdiction to enact the 0th section of the Heviscd .Statutc-i of Ontario, cliai)ter llil, and eri- titnlcd "An Act respecting Assigii- ineiits and Preferences hv In<"l vent Persons?"' " The majority o tli couit answered this o m tlu' negative; hut on ,iie judges who formed tin iority only concurred with hi- '■•threit in- cau.se he thought the cast was governed hy a previous decision of the same court ; had he con- sidered the matter res ititegra he would have decidcil the other B.N.A. ACT, H. 92 (13). -DEFEAT OF ("IlEDITOUS. 303 ttiiv. Till' coiirt WHS tims (■(iniilly divided in opinion. •• It is not contcslrd that the , iiiii'tiucnt, tliu validity ol' wliicli is ill iliicstion, is williin the Icffisla- \\\f [lowi'i's conl'ffn'd on the pm- viiiciid k'ljisjatun' li\- si'C. ))2 of the IJiitisli N'ortli Aniciica Aft, IHti". wliicli ciialilcs tiiat lt'<:;isiatnn' to iiiiiki' laws in relation to i>i'opcily iiiMJ civil rijflitH in tlic province unless it is withdrawn IVoni tlicir |i'i'i»lMti\e conipt'lcncy l>y the |>in- vi«ioiis of the iJlst scit'>n of thai All. which confers upon the l)o- iiiiiiidn Parlianu'iit tlie ext'hisi\i' |i()\ver of leffislation with reference to lumkniptey and insolvency. "'{'he point to he detei'inincd, llii'ii'fia'e, is the ineanini; of those wiiiils in see. ill of the Hritish Xi)ilh America Act, 1HG7, and whitliei' they render the eiiaetnieiil iiiipeiic'lieil ii/tra i'ires of the pro- viiiciid lcjj;islatni'e. That cnact- ini'iit is sec. 9 of tlie J{evised .Sljitutes of Ontario of 18S7, c. 121, entitnied ' An Act respeetiiij;' .\->.i;,'iiincnts anil Preferences i)y lii^dlveiit Persons.' 'J'hc section i« IIS follows : — •" An nssif^nincnt for tho f^cne- liil liencfif of crcilitors nnder this .\ii shall take precedcnoe of all jiiil<,';aii'nts and of all executions not eoin|)letely oxecntcd l»y pay- iiii'Mt, suhject to the lien, if any, of an exeentiou creditor for his costs, where there is but one execution in the sheriff's liands, or to the lion, if any, of the creditor for his iiists, who has the first exocution in the sheriff's hands.' "In order to umlerstand the effect of this enaetnient, it isneces- siiry to have i-ecourse to other sections of th(> Act to sec what is meant liy the words ' nn assij;;n- inent for the geia'ral henelit of creditors nnder this Act.' " 'I'he first section enacts that if any person in insolvent circum- stances, or knowing himself to he on the eve of insolvency, volun- tarily infesses jndfjment, or gives a warulut of uttorney to cout'ess judgment, with intent to defeat or .ATT.-Or-e. or Ih'lav his creditors, or to give anv """",'" '• ,-., ,, ' " , .• .\TT.-(iKN. I)F creditor a prelerenec* over his i>^^^„^ other credilois, everv such eon- , , lession or warrant ot attorney sliall ,„|,|,ts ami he \oiil as against the creditors of I'ritui'cin'cs the party gi\iiig it. ^Ont.; .Ait. "'I'he second section avoids as against the other creditors any gift or assignment of goods or other properly made hy a person al a lime when he is in insohent cireiimsiaiices, or knows that he is on the e\(' of insohi'iicy, with intent to defeat, delay, or prejudice his creditors (H' give any of them a la'cfel'ence. "Then follows section three, which i> important : — '' Its first Huh-section proviiles that nothing in the preceding section shall apply to an assign- ment made to the sheritl' of I'lamty in which the dehtor i-esides or carries on husiness, or to iiiiy assignee resident within the pro- vince with the consent of liis creditors as thereinafter provided for the purpose of paying, rateahly and proportionately, and without ])reference or priority, all the creditors of tlie dehtor their just (h'hts. "The second suh-section enacts that every assignment for the general heiiefit of creo coiivo- iiiciit to <;liin('(' !it tlic C'oiiistf ot lof^ishition in relation to this iind (•ojjnate nialtt'is both in the pio- viiice anil in the Dominion. The enact nient.s of the iirst and seeond scetions of the Aet of 18S7 are to lie found in suhstaiiee in .see.s. 18 and 1!) of the Aet of the (irovinee iifCanai'a passed in 1 HoH for the U'tler jtrevention of fraud. There is a proviso io the latter section which excepts from its oi>eration any assij^nment made for the pur- pose of payinj; all the creditf)i's of the debtor rateably without piefer- euee. These ])rovisions were I'e- peafed in the Revised Statutes of Ontario, 1H77, c. 118. A sli-jiht amendment was made by the Aet of 1881. and it was as thus amended that they were re-enaeted in 1887. At the time when the .statute of 18.58 was passed theie was no bank- rujitcy law in force in tla' pio- vinee of Canathi. In the year 18(51 an Aet re.siHutinu: insolvency was enacted. It applied in Lower Canada to traders only; in l'|iper Canada to all persons, whether traders or non-traders. It pro- vided that a debtor should be deemed insolvent and his estat*^ shonhl iMfome subject to com- pulsory Ucpiidation if he eom- luitted certain acts similar to those which hail for a Ion;; period U-eii nuide acts of bankruptcy in this country. Amonji these act:> "re the assignment or the proeir ■■;: of his property to be seized in execu- tion with inte;it to defeat or ilelay his creditors, and al.so a jceneral assignment of his pro[)e!ty for the iM-nefit of his creditor.-i otherwise thr.n in manner provid"pcah'v! by a new Iiiso]. vcney Act of 1875, which, ;ifi,.r being twice amended, vas, toj;eili(.|' with the amending Aet.s, repealed in 1880. " In 1887, the same y.• I ankruptey ' and ' insolvency ' in see. 91 ol" the British North America Act. But it will Iw seen that it ifl a feature common to all the systems of bankruptcy and in- solvency to which reference has been made, that the enactments are designe(l to .secui'c that in the cnse of an insolvent pcr.son his as.sets shall be rateably di.stributed amongst his creditors, whether he is willing that tliey shall be so di.stributed or not. Although pro- vision may be made for a voluntary assignment as an alternative, it is only as an alternative. In reply to a (luestion put by their LiinU ship.s, the leii'iied eoun.sel for the responde.-.t were unable to point to any scheme of bankru|)tcy or in- solvency legislation which did nut involve some power of compulsion by process of law to secure to the crcihtors the distribution amongst them of . the insob nt debtor's estate. " In their Lordships' opinion, these considerations unist be borne in mind when interpreting the words 'bankruptcy' and 'insol- vency ' in the British North America Act. It appesirs to their Lordships that such provisions as are fouiul in the enactment in (piestion, relating as they do to assignuM'Uts purely volinifauy, do not infringe on the exclusive legis- lative [)ower conferred upon the Dominion Parliament. They would ob.serve that a system of bank- ruptcy legislation may frequently recpiire various ancillary provisions for the puriHjse of preventing the scheme ot the Act from being de- feated. It mav lie neeessai'v for this purpose to deal with the effect of executions and other mattois which wotdd otherwise be within the legislative competence of the provincial lej 'ature. Their Lord- ships do not tioubt that it would bo open to the Dominion Parliamont to deal with such matteis as [)iiit of a bankruptcy law, and the pro- vincial legislature would doubtless be then prechuh'd from interfering with this Icgi.slation, iuasnnieli sis such interference would affect tlio bankruptcy law of the Dominion Parliament. But it "P"y» '» Q' J^-. Qe also Tenrant v. Union Bank of Canada, Oiitario C. A., 8 Jan. 1892, 19 O. A. R. 1, Dec. 9, 1893, [1891] A. r. 31 ; 03 L. J. P. C. 2.); G9 L. T. 774 [see suli-s.c. 13]. The rorvM is, the Dominion Parliament can tai:e away leave to appeal as of right, but not tiie pre- riig'itive of the Queen to grant leave, unless it is done by express wonls. And thcv is a tiiird cnsc where no right to appeal ever did exist ; in that cnso it is doubtful if the Queen can give leave. Tiii^:nEiuiE r.LAynnv, in Sup.C. Queliec, 29 May 1870; in P. V. 7 Nov. 187(5, 2 App. v'as. 102; 10 L. J. P. C. 1; .35 L. T. (540; 25 W. K. 21G ; 3 Q. L. R. 202, was a cnso where tlie provincial legislature as- signed to file provincii'l couit con- troverted election p'.aitions. Lord Cairns, L.C. [there lM>ing also present Sir Barnes Peacock, Sir Robert Collier, and Sir Henry Keating], delivered the following judgment on the |M'tition for leave to appeal : — "The petitioner in this cn.se states that he was a candidate at an election held in July 1875, in the province of Quebec, for tiie "^f •4-l«**44>r»*»# »n* B.XA. ACT, s. 92(14).— THE QUEEN'S PUEROaATIVE. 309 offict' of mtJinbor to reprt'sent the tlectonil district of Montiimnii'i- in the Icgisliitive assembly of the pro- viufO, and that hy was dochircMl (luiv elictod ; but that after the liectioii a petition wax presented |)V c'crtiiin electors uf^ai'.ist the ri'tiuu of the ;x'titioncr, alleging that lie had been gnilty of corrupt imictices by himself and his agents, ami praying that the seat might be (litlari'd \acaut, and the i)etitioner (Ict'lari'd dis(pialified, in accordance with the provisions of the Quebec Controverted Elections Ac't. He thtu states that the iK'tition was tried according to the Act before the court, and that the court pro- nounced a M-ntence against the jK'titioner, declaring the eU-ction null and void, and declaring him f!;uilty of corrupt practices, lioth liersoiiaiiy and by his agents. The l)etition states certain objections which the ix'titioner nuikes to the decision of the court, and prays tiiat Her Majesty in Council will lie graciously pleased to order that the petitioner shall have special leave to «|>peal from the judgment of tiic Su|M'rior Court for the pro- \ iuee of (2u<72 and 1875, in Quebec, as in this country, the decision of TuiSnBttuK (juestions of that kind has now I'*"""^- become vested in the Supreme Court. The 89th .section of the hiter of these two Acts, the Act of 1875, provides that the sujxjrior court sitting in review shall deter- mine, — first, whether the member whose election or return is com- plained of has been tluly elected or dt'chired elected; second, whether any other person, and who, has Ijeen duly elected; third, whether the election was void ; and fourth, all other matters arising out of the petition or reqtilring its determina- tion. Then the 90th section en- acts, ' Such judgment shall not be susceptible of a[)peal.' '♦ Now, upon that JX)th section it is contended on behalf of the peti- tioner that it jloes not take away any prerogative right of the Crown ; that tlu! Crown and the preroga- tive of the Crown is not sjiocially or particularly mentioned ; and that the general rule is, that the pre- rogative of the Crown cannot be taken away exceiit l)y a siKicific enactment. It is said that this section may be satisfied by holding that the intention of the legislature was that there should be no api)eal from a sujierior court to the Court of Queen's IJench in the colony, which was tin- kind of appeal that exi.sted in civil ca.ses in the colony, and that the prerogative of the Crown is ncc in any way affected. " Their Lordships wish to stiite distinctly, that they do not desire to imply any doubt whatever as to the general principle, that the pre- rogative of the Crown cannot be taken uway except by express words; and they would lie pre- [Mired to hold, as often has been held l)efore, that in any case where the prerogative of the Crown has existed, preci.se words must be shown to take away that preroga- tive. But, in the opinion of their Lordships, a somewhat different question arises in the present case. These two Acts of Parliament, the Acts of 1872 and 1875, are Acts * 310 B.N.A. ACT, s. 92 (11) —UNCOMMON LEGISLATION. Th^-beroe v. peculiar in their chnractcr. Tiioy Laudky. any not Acts constituting or pro- viding for the decision of iiu'ie ordinary civil rights ; tiiey are Acts creating an entirely new, and up to that time iniknown, jtuis- diction in a jiartieular court of the colony for the purpose of taking out, with its own consent, of the legislative assembly, and vesting in that court, that very peculiar juris- diction ,■ hieh, up to that time, had existed in the legislative assemhly of deciding election petitions, and determining the status of those who claimed to Im' members of the legis- lative? assembly. A jiu'isdiction of that kind is extremely special, and one of the obvious incidents or consecpiences of such a jurisdiction must be that the jurisdiction, by whomsoever it is to be exeicisecl, should be exercised in a way that should as soon as jjossible become conclusive, and enable the con- stitution of the legislative as,senibly to be distinctly and speedily known. Accordingly we find, on looking at the Act of Parliament, that after providing by the H9th section as to the matters which the superior court is authorized to determine, the 91st section deehnt's that a certified copy of the judgment .«hall be transmitted without dehiy to the Si»caker, and another to the pro- thonotary in the district in which the petition was presented, and then the 118th section [irovides : — * The SiK-aker shall, at the earliest practical moment after having re- ceived the judgments and reports, adopt all the proceedings necessary for confirming or altering the re- turn of the returning officer, or for the issuing of a new writ for a new •'lection within .30 day.s, or for otherwise carrying the final jutlg- nient into execution, as circum- stances may recpiire, lie may, for the issuing of such writ of election, aderior court should not be cou- (•lusive, of cotu'ise the argument is that the power which is to Im- brought to bear to review the judgment is the power of the Crown in Council. " Now, the subject-matter, as has iK'cn .sud, of the legislation is extremely peculiar. It concerns the rights and the privileges of the I'lectors and of the legi.shitive H.ssembly to which they elect meui- l)ers. Those rights and privileges have always in every colony, fol- lowing the example of the mother country, been jealously maintained and guarded by the legislative assembly. Above all, they have been looked upon as rights and privileges which iMTtuin to the legislative assembly, iu complete ►•x nin'»hMintT«»* 1h' found that in the la.-st resr of admitting an appeal, this i.s not a case in which an ajipeal ought to lie ad- mitted ; but, in their opinion, it is not a case in which it wa.s ever contemplated or intended that there should be a jiower to admit an ap- peal on the part of the legislature. " Their Lordships were in one part of Mr. Benjamin's argument pressed with another matter, that even if an appeal should not be here admitted generally, yet that there was in the finding of the judge a subordinate part, which ought to be brought byway of review bflore this tribunal. Mr. Benjamin said that the judgo had found that the petitioner was personally guilty of corrupt practices ; and then he said that the (Quebec Eh'ction Act, by a particular section, the 267th, provided that if it is proved before the court that corrupt practices have been committed by or with the actual knowledge or consent of any candidate, not only the election shall be void, but the candidate shall, during the seven years next after the date of such decision, be incap- able of being elected to and of sitting in the legislative assembly, of \ oting at any election of a mem- ber of the House, or holding an office in the nomination of the council of the Lieutenant-Governor '!' 312 B.N.A. ACT, s. 92 (14).— "CIVIL JURISDICTION." Tiir^;DBRnB v. La.nduy. Valin t'. Lano- LOIS. i of till' proN iiioe. Mr. Uonjiiuiin c'tiiitt'iulfd that the Act of I'ariiii- nu'iit, so far as it cii^raflcd on the decision of the jmlt^f this di'ciara- tion of incapufity, was iiffra vires the power of (he h'ii;isiatiiie of the |irovince. Upon that point tiieir Lordships do not tiiinii it neeissary to express any opinion whatever. If the Act of Parliament was in this respect, as contended, ultra vires the provincial lejfi.slature, the only resnlt will 1h' that the eon- s<'qnenee declared liy this section of the Act of Parliament will not ennre a<;ainst and will not allect the petitioner ; bnl it is not a subject \»hich should lead to any different determination with ref^ard to that part of the case. " Upon the whole, their Lord- ships will humbly advise Her Ma- jesty that this petition be dis- missed." In Vai.i.n r. L.\Miu»is, in S. C, Quebec, Jan. 1H7S), 5 Q. L. 11. 1, the (piestion was whether the court could legally dischargi! the duties assigned to it by the Dominion Controverted Elections Act, 1H74. Meredith, C.J., said: "The answer to that cpiestion must de- {wnd on the right of the Dominion to legislate on the subject, and upon the ('Xtent of the powers of this Court considered in relation to the (lutii'S thus u.ssigned to it " l)y tlie Act. . . " 1 may at once admit, although the adnii.ssion by some may be deemed to go too fai", that in my opinion the ' con- stitution ' of provincial courts, which i.s exclusively within the power of the provincial legislature, includes the power to determine the jurisdiction of those courts; and |>laces that jiu'i.sdictiou beyond the control of the Dominion Parlia- ment. If that opinion be w»'ll foundwl, then the [towers of this Court could not be enlarged by the Controverted Elections Act of 1H74 ; and, therefore, according to luy views, it becomes necessary to inquire wluit are the powers of this Court according to its constitution.'' Reads sec. 2, c, 7H. of C. S. L. C, us follows, '"The Superior (*ourl Ims original civiljurisdict ion througlidiit Lower Canada, with fidl power iiiul authority to takecogiii/.anee of, hear, try, and TOi;/«t7'«/ statutes respecting provincial courts ; there being no question as to the power of the provincial legislatures to pass such statutes. He then passed to the objection that, not- withstanding the provision of the Imperial Act, declaring that the provincial legislature has exclusive power to legislate as to procedure in civil matters in provincial courts, the Domiuiou Parliament, by the statute impugned, has de- clared what shall be from be- giuuiug to end the i)rocedure in l\ni provincial court, in this civil mutter, and continucil : " In order (p. 14) to arrive ut the true mean- ing of the section respecting pro- mluie in civil matters in the pro- vincial courts, it is necessary to vv- collect that although very much the fiicater part of the civil matters in tlic provincial courts are matters couiph'tely within the powers of the provincial legislatures, yet that there are some of these matters — for instance, the present mutter, uud, I think I may add, matters in insol- vency — wholly beyond the powers Vai.in v. Laro- of the provincial legishiture [but '-'^"*- si'cCushing v. \h\\)\\\,antv, p. 7H] ; aiul, bearing this in mind, 1 think the provisions of I lie Imperial Act, giving the i>rovinci«l legislature exclusiv(! power to make laws re- specting proceedings in 'civil mat- ters' in provincial courts, may from the nature of the subject be under- stood as meaning 'civil matters' nit kin the power of those Ivijislu- tiirvs, and not as giving, as is con- tended, to the provincial legisla- tures power to establish the pro- cedure ill civil matters, in other res[)ects, utterly beyond their power, and completely under the control of the IJominion Parlia- ment. Now if the exclusive power of the provincial regislatures as to the regulation of procedure does not extend to matters, as to which, in other respects, they have no control, and which in no respect concern them, then such inat- ter.s, even as to procedure, would I)e within the general powers of the Dominion Parliament, and the dilliculty as to procedure would disappear." Anirmedin 3 S.Cll. 1, by Sir Wm. Kitchie, CJ., Foiirnier, Henry, Taschereau, and Gwyuue, JJ. Valix v. Lanolois was heard and decided in the Privj- Council on a motion for special lea\e to apiieal, Dec. 13, 1879, i App. Cas. 115; 49 L. J. P. C. 37 ; 41 L. T. GG2. Lord Selboiiic, delivering judg- iiunt, dealing with sub-sec. 11, .sec. S)'J, said [:, Ai)[). Cas. p. 11!); .sec, for full judgment, ante, p. IH] : " Even if sec. 41 were not in tin-. Act, it would not be (piite plain that the transfer of the jurisdic- tion to determine upon the right to seats in the Canadian Legis- hiture — a thing which had been always done not by courts of justice but otherwi.se — would come within the natural import of those general words, ' the administration of jus- tice in the province, and the con- stitution, maintenance, and organi- I ' ' > I ii 31 1 B.N.A. ACr, > 02 (1 1),— SUBJECT-MATTER A DOM. iv'iii; Vamn i\ Lano- /atioii (if proviiK-ial courts, iiixl '•""*• procedure in civil iiiiitterH in those courts.' Hut one tliiiif; lit lensl is dear, tliat llio.xe words do not point expressly, or Ity any necesMiry iin- pliciition, to tlie particular subject of ele<'tion petitions ; and when we find in the .same Act another elau.se which ileids expressly with tho.se petitions, there is not the snistent construction. That other clause, the list, ex- pressly says that the olil mode of detciininin^ this class of (|ucstions was to continue until the I'lnlia- UHMit of Canada should otheiwi.M' pi'o\ ide. It was, therefore, the .('arliament of Canada which was ofhcrwise to proviile." .... '• Ev»'n supposing that this wei'<' not in truth and in sid)stanee the creation of a new couit. If the sulijeet-matter is withid the juris- diction of the Dominion Parlia- ment it is not within the jurisdic- tion of the provincial parliament, and that which is excluded hy the 5>lst section from the jurisdiction of the Dominion Parliament is not anything else than inatter.s coming within the classes of xulijects assigned exclusixcly to tlu' legisla- tuH's of the i)rovinces. The only material class of sulijects relates to the administration of justice in the provinces, which, read with tlu' 41st section, cannot Im' rca.'^onably taken to have anything to do with election petitions. There is, there- fore, nothing here to raise a doubt about the |)ower of the Dominion I'arliament to impose new duties upon the existing provincial courts, or to give them n«'W powers as to matters which . 1)2 (1 4).— TIlfiBEKGE EXAMINED. KE!t!«r.DY ('. Justiro H(i>c, wliodcolaivd tliat tlu" ruinELi.. election oi' Mr. I'mrrll wiis void, und tliat lie had liccii guilty of coi- nipt pnieficis. JIc appealed to tlu' Supreme ("oml, wiio, on the lilllli Mareli IHHH, reversed tile de<'isioii of Mr. Justice l{ose, and disiiiis.sed tile petition. '• It appear?) tiiut the (lecision of the Supreme Court did not turn on tlie nieritrt of tlie ease, lint entii'ely on (|ueslioiis of procedure, which Were tliree in numlier. First, whether the time dinin;; wliicli Parliament wast siltin-i' sliould Ik- computed as part of the six montiis allowed for the connnenceuient of the trial, Secondly, whether after the expiry of the six months the court has power to extend the time for tiial. Thirdly, whether the apiM'llanI, not oNjectin;; to the enlar;;;einent when the order was made, was entitlcil to object after- wards. On all or some of these questions, two out of the live judfjes who heard tlio appeal were in favour of the petitioner, liiit the other three .judfjes ilecided in favour of Mr. Pureell on all of them. " It is now urged by the petitioner that inasmuch as the questions de- cided are important ([uestions of law uffecting the construction of the election statutes, and there is good ground for doubts as to the soundness of- the decisions, Her Majesty in Council should enter- tain an appeal. On the other side the importance of the (piestions is not denied, nor is it denied that the decisions on them are fairly open to argument. Eut it is contended, first, that the subject-matter is not one with respect to which the pre- rogative of the Crown exists; und, secondly, that if the prerogative does exist, it is not proper to exercise it. " To support the liist proposition, the case of Tbeberge v. Landry [Sup. C. Quebec, 29 May 187G; in r. C. Nov. 7, 1876, 2 App. Cas. 102 ; 46 L. J. P. C. 1 ; .35 L. T. 640] is relied on. That case arose uuder the Quebec Elections Act of lH7o, by which the jurisdiction to try election petitions was given to the Superior Court, whose decisioii> were declared * not susceptible of appeal.' The petitioner sought tn appeal on the merits of the election. The decision of thisCouimilteewus, not that the prerogative of the Crown was taken uway l)y the general prohibition of appeal, but that the whole scheme of handing' over to coiuts of law disputes which the legislative assemiily had pre- viously (U'ciiled for itself, showed no intention of creating tribunals with the ordinary incident of an a}>peal to the Crown. " In the case of Valin v. Laii},'- lois [in court below, 3 S. C. 11. 1 ; in P. C. Dec. 13, 1879, 5 App. Cas. 115; 49 L. J. P. C. 37; 11 L. T. 002 ; and ante, p. 18], the petitioner asked for leave to appeal Irom u decision of the Supreme Court of Canada under the Contro- verted Elections Act of 1874, which is one of the statutes consolidated by the Act now in (piestion. The gronntl of appeal was that the Ael, being a Dominion Act, was uUru vires of the Dominion, in assuming to give the courts in Quebec juris- diction over elections in Quebec to the Canadian IIou.se of Commons. This Committee, behl that there was no ground for any such contention, and dismissed the petition. But it was said that if they had doubted the soundness of the decision below they would have advised Her Majesty to grant leave to apiMJul. That opinion is now relied on as limiting or contravening the etfect of the decision in Tbeberge v. Landry. "Their Lordships do tiot think that for the present purpose any useful or substantial distinction can be taken between the statute which was the subject of decision in Tbeberge v. Landry, that which was the subject of decision in Valin V. Langlois, and those which are now iu question In all three cases there is the broad conside- ration of the inconvenience of the RN.A. ACT, R. 62 (H).-CTOWN TNTEPFTinma. 31 7 Oown intorfcriiipf in cloction mnt- ti>rs, iinii tli<> iinlikfliliDod tliiit tliu coloiiiiil lt'Ki>*liitiiro should liivv(> iiitoiKli'il niiy SMcli result. In all tluec tluTc is tlio ori'iitioii of n •i|K'i'iiil tribiinitl for tlio trial of tH'titions, III tlio spiiso tliiit the lili- iratioii is not left to follow llic coiirsi! of nil ordiiiiiry lawsuit, iuit ix suli.ji'Ctoil to a special proeediirc ftiid limitations of its own. And ill nil llirep tlicro is the same '.;x- pri'ssion of the intention to iniiko llic colonial deciision final. Hut such vni'ianco as there is hetwcon the two cited cases is only to this oxtcnt, that the Comniitteo in the latter case must have thou<,'ht that the question of the existenei^ of the jtrerogative was .still susceptiiile of argument, wlien the dispute went to the very root of the validity of a liiw imsscd by I'nilininent to take ctrcct in a province. Their opinion on nil ex parte hearing, mid on the sole question whether or no there should be any further nrgninent on the matter at all, cannot be put jiifjlicr than that. " Their Lordships do not find it iiece.ssary to give any decision on the abstract question of the existence of the prerogative in this case, becnu.se they arc satisfied that if it exists it ought not to be exerted in the ease before them. " It is true that the questions are very debntenble, and that they affect the admiiiistrntion of the whole law on this subject. But the range of cases affected by them must 1)6 very narrow. It is not suggested that in the present Par- liament there is a single case except the one under appeal. There enii be no other case till fresh elections take place ; and if the decisions now given have really misinterpreted the mind of the legislature, and are cnleidated to establish ruh-s of procedure less convenient than those intended, the legislature can nt once set the matter right. This peculiarity of the subjeot matter largely diminishes the foro« of the con- sideration, usually a ntrong one, Kfnnf.dt r that the decision eoinplained of ' cik m.i,. ad'ects general questions of law. "The next observation is that the statutes show throughout a desire to have these matters deciilcd •piickly. There are tli(> most obvious reasons for such a desire. The legal duiiitioii of a Parliament is, as their Lordships understand, live ycfirs, and its usual duration four years. It is most iniportnnt thnt no long time should elapse before the coiistiliition of the body is known. And yet if the t'rowii is to enlertnin njipeals in such cases, the necessary delays attending such appeals would gn-atly extend the time of uncertiiinty which the legis- lature has striven to limit. "Again, the intention to confine the decision locally within the colony itself is just as clear as the intention to get it passed speedily, because it is expressed that the decision of the Supreme Court shall be final. And it seems to their Lordsdi[)s that there are strong rea.soiis why such matters should bo decided within the colony, and why the prerogative of the Crown should not, even if it legally can, be ex- tended to matters ()\er which it had no power, and with whi<'h it had no concern, until the legislative bodies chose to hand over to judicial functionaries that which was for- merly settled by themselves. Before advising such an exertion of the prerogative, their Lordships would i'c(]uire to find indications of an iiitcnlion that tli ' new jiroceedings should so follow the cour.se of ordinary law as to attract the pre- rogative. But the indications they do find arc of the contrary ten- dency. " The result is that their Lord- ships cannot advise llcr Majesty to grant the leave asked, anil that the petition must be dismissed with costs." In Ryan v. Devlin, 5 Nov. Rvas v. 1S75, Q. B. Qm'l)ec, 20 L. C. J. 77, ^^^''"^■ before Johnson ,Torrftneo, and Beau- [• 318 B.N. A. ACT, s. 02 (1 4).— PROVINCES AND COURTS. RvAN V. Devlin. (Irv, JJ. [tho iiittor di.ssentinp], Johnson, J., dealing witli thi- Do- minion Controv«'rt«Ml Kloctions Aot of 1873-74, said: Parliuint'nt hy tlio carliiT Act " did fontcinplate tlio creation of an additional v iirt called an 'election court,' lait that has not lioon done in the sfatnfc of 1S74." And Meredith, C.J., deal- ing with the same Dominion Acts in Valin v. Langlois, IHiO, 5 Q. L. 1{. p. 1."?, says: There cannot lie any " doulit that the framers of the Act of 1873 thou;,'ht the creation of u new conrt, lor the trial of election [M-litions, a wise precau- tion; and prol>,ilily it was so, as tentling to prevent controversy ; hut it (Uh's not I'o'.low that they deemed that precaution alt.so- Intely necessary ; and the Act of 1874 shows that Parliament, upon further consideration, came to the conclusion that .some of the duties connected with the trial of election petitions, coidd he assi^rned to the ordinary ci>il tribunals." The pas- sage of .fohnson, J., in Hyan v. Devlin, 20 L. C. J. p. 82, is: "It is not an Act [the Act of 1H74] for the 'constitution, umint«>Mance, and organization of a supreme court,' m-iliu'r is it an Act i'.)r the estab- lishment of 'any additional coiict,' See. 101 of the H. N. A. Act may, theivl'ore, lie treat 'd as inapplic- al>lp. [Heads that .section.] These |!owers have not been exercised by this statute in a scM'ved that the local legislature oin only create provincial courts." He goes on to .say : " If the Dominion Parliament lias disregarded the provisions of sec. 101, and ajjpar- ently, at lirst sight, overridden the rights reserve*' to the provincial I>arliament.s, t lero mu.st lie .some presumable rea.son for what they have done. Courts of justice are not to look at tatutes with a view to defeat them, lail with a view to give them effect. We must not presume that the Canadian Parlia- ment has proceedetiinilin;,' that we have enutnerated till' most salient snhjeets on whieh ihc Doiaiiiion Le<;ishiture may make laws, it mist 1)0 clearly nnderstood that tliire is nothin<; at all to pre- Miit ilii'iu from lej;;:4aling for the uiuilc Dominion in matters not to III' found in the list of those {jiven 1(1 ihcni, and not a.ssij^iied to the |ir(iviiices.' " Sec itlsn Owens r. ('nshin;^, .') N()\. 1875, 20 L. C. J. HO, wlieie Muikay and Torrane", J J. [Reau. (Irv, J. (dissent in<;],allirmin^. John- >oii, J., held there was jnrisdietion in tiif Dominion topH.s.s the 37 Viet. (• 10. In the Ni.voAitv Election Cask. 11 Dec. 1H7H, lliJ U. C. C. P. 2GI. |i, 2W), in whieh Gait and Chvyniie, .[.[. (Wilson, J., dissent ill},'), held till' Dominion Controverteil Elec- tions Act oi' 1874 valid, IFod^^iiiS, (JIV, in ar;;iiiii}; ajiainsl the validity of the Act, cited I'; American cases };ivcn liehjw, some of which are |)ii)Iiiiliiy those referred to liy Mere- ili;li, C.fl., ill Lan;;lois r. Valin, 5 Q.L H.p. 11: "The lOlsi section of the H. N. A. Ael empowers li.e I'cdciid I'arliiimcnt to cstaiilish I'oiirts. A similar authority is vpstiil in the Coiif^rcss of tli rnitcil States : ' The judicial powi ol the United .Stales shall lie \c-t- cil ill o'le -upreme court, and in *U(li inferior courts as Coiij^rcss .xlmll I'rom time to tiiiie estahlish ' (art. .1, sec. 1). The value of .Vmeriean ('ecisions as to the li'<;i-'lalive antlu^rity of a dual ■K)V('rei;j;uty like ours was ap- proved in Loprohon r. Corpora- tion of Ot*.«wn, 2 O. A. R. rv]r», 532. In the United States, wldeh |Mi«ess«'s a system of dual jjovcrn- iiii'til like ours, the Federal and SiBte court.s, since If 12, liavo held that Congress cnnnot vest N'rvo.iRA Ei.m- jiirisdict ion in a State court. 'Con- tio.s Casb. press cannot vest any portion of tlu' judicial power except in coe.rts ordaiiH'd and estahlished liy itself : Martin r. Hunter, IHIC, 11 S. C. U. S. (1 Wheat.) ;iOl ; Houston r. Mooiv, 1820, 18 S. C. U. S. (5 Wheat.) p. 27; Ely r. Peck, 1828, 7 Conn, at p. 242; United States c. Hiulson, 1812, II S. C. U. S. (7 Craiich) 32; The Wave, Rhitcli and Howl., 23") ; Ignited States v. Hudson, ISli), 17 dohns., p. 1. A Federal court cannot enj(»iii pro- ceedings in a State couit : Diggs c. Wolcott,8S.C.U.S.(4Craneh)17J». In that casetfwvnne, J., said [20 U. C. C. r. p. 27!)] : " Much was said about the constitution, nmin- tenanee, and organ i/.at ion of our courts being exclusively under tne control of the proxiiici.d iegisla- tiires, including the ^jiocedure in civil mat ters in tho.se courts. These lattc'r words, in the 1 Ith paragia|)li of sec. J)2, iihiiiily apply to the pro- cedure in tho.se ci\il matters over which the iirecediog paragraph, the sub-sec. 13, ga\e to the pro\ incial legislature exclusive control, name- ly, 'property and ci\il I'ights in the pro\ inces," .uid do not iifTeet procedure in the case before us, which, being a nialter over which the provinciid legislature has no jiirisdiciion, it could not assume to prescribe a procedure relating tlier"- to ; but the perfect llccii ley of the proposition that the constitution and oiganiz'X '.'■ if our courts are exclusively ( Pflc, the jurisdictioi! i)f the pro\ incial legislatures, al- though the determination of the point before us does not retpiire its discussion, may, as it a|ipears to me, well be ipicstionrd. 'i'lie con- stitution of the old courts in exis- leiiee at the time of confcd riilion caniiiii be abolished r altered without the assent of t'.c Dominion Ooveriimeiit to the Act passed for the purpose by the provinci;il legis- lature. No new courts (.in be con- stituted, or when constituted be alx)li»he(l or tdtered, without the >Mir n I (':! I 320 B.K.A. ACT, ■>. 92 (1 1).— PROVS. CBEATINft COURTS, ':• If NiAoARA Er.m- like nssont. No doubt tho right to Tio.N Cask. coiistitufo and orn;aiii7,o courts of jus;i('(' is, liy lu> B. N. A. Act, voHl.'d in til"' povincial Icgisliiturc except in so iir as participation m such or^ini/atioii is hy llicsiiuc Act reserved lo the Doniiiiion aii- thoi'ities. Now, coiu'ts i'or tlie ad- miiii^lialioii of justice would Ik very iuijM'rfectiy ()r}j;aui/.cil witiiout judijes. Tiiey form a vory iui- portant constituent iu tiio orp;ani/.a- tiou of courts, and, until their ap- pointment, it cannot he said witii accm'ucy that the courts are com- pletcdy constituted and organizi'd. As the a|)pointmcnt then of tiic judges I'ots in the Dominion (lovernmcnl, and tiie power to re- move tiiein is \('sled in llie Domi- nion I'arlianicnt, and as no altera- tion in tlu'ir constitution vr.n he cITectcd without the assent of the Dominion (lovernment to tlie Act of the provincial IcfjisiatiU'e passed for tile piu'pose, it would l)e mori- consistent witli the i'ranu^ of our constitution to sjieak of all newly- creale(l co irts as Ix'inj; constituted ni\d or>rani/.e for gcnt>ral provincial par- poses, in that cas(> the lin:itation to direct taxation woidd still have been ap[)lieahle. That may lie an important (piestion which will lie consi'l;^rc(l in any case in which it may arise ; but it does not arl.se in this ease. This Act does lait relate to the aihiiii:i'.ii"ition of justice in the pi'ovin-e : it (h)es not iirovide in any way, directly or indirectly, for the maintenance of the pro\ incial court.^ ; it diK's not pur|)ort to he made under that power, or for the |ierl'ormance of ijiat «luty. Tiie subject of taxation, iiuh'cd, i.-a mat- ter of procedure in the provimiai courts, lint that is nil. The fund to Ik' raised by that taxation is car- I led lo the purposes mentioni'd in the 2iid ,sub-,s«'c,, sec. 92. it is made part of the general consoli- ilated revenue of the province It ^ ac:i^[iftiiE«fc4A»_-w^l B.N.A. ACT, s. OL (14).— STAHTINO PROPOSITION. 321 ^ tliprofon' is pivciscly within tlio words 'taxation in order to (lie iMJsiii" lit' II rcvcnui' for provincial niiriKWs.' It it slionid {^really i \- cri'tl till- cost of till' aiiniinistrai . 11 (if jii>itin', still it is to he I'ai.M'il ami apiilii'il t" {ji'iH-nil pnivini'ial |iiii'|Mis('s, anil it is not niorr ■.[K'ciHllv appliniliU- for the ail- riiinistnitiini "f jiistifi' tliaii any iitiii'i' part of till' m'lioral provinciiil vcvciiui'." [Tilt' aliov*' is tlie st-conil imrt ; tor first part of this jiid<>;in('nt «(««/(•, p. lli>; and for third [Mirt, s. (15, p. 32.] I'ntti'r.son, J., s«id, in SciiooL- ii.iKi) V. CI..VKKK, June 12, IH'.H), 17 S. ('. U. p. 277 : " The stiirtiiifi; |)i()positioii, to the ovt'rl(Hikin<; of wliicli I iittriliiitr much, if not all, '111' ililliriilty that to some judjrrs si'tMiu'd to attend the workin<; lit ;lii' Aft, is that by the H. N. A. A'c't till' constitution and orfjani- zjitioii ')f provincial coiiits, liotli lit' civii tiiiil criminal jnriMliction, ami iiu'liiiliiif; procedure in civil iimlti'i's in those coiirt.s, is a func- tion of the provincial le So lon^f ,'i> there is m, legislation of the Domiiiioii rarlinmeiit in existence, the pro\ iiicial legislatures nay legislate on subjects which might I'ome under sec. !)l. Att,- (icii. of Ontario r. Att.-den. '>)r till !)oiiiiiii(>n oi Canada, ii C. A. Out . !» VIiiv 1H!):<. '20 O. A. U. IH9: in P. C, reversing the de- •l 1] *!!! : Ii m^ i 5 «:■ Poi'B i: GlIIKPITII. 322 B.N.A. ACT, ». 92 (14) —PENAL LAWS OF DOM. cision Iwlow, Fob. 24, [1894] A. ('. 189; (W L.J. P. t\ 5!); 70 L. T. 538. [See mh-tn-v. 13, see. 92.] In Poi'K r. (}itii-.'i ,11, II Mairh 1872, l(i L. C. J. 171, Ititiiisiiy, J. A., .said — »lf«liii<; with 11 coiivictitiri uiidtT .sec. 4 of llu' QhcIh'c LicciLsc Ait, 31 Vifl. »•. 2., uiid the const it lit ioiiiilitv of the Act in that it prcsciilics ciiniinal procedure: — " Wiiatcvcr may 1h' the delinition of a crime, I wonld remind thos<> who h>an too nuK'h npon dctinitions, of tiioir dan<;cr; it will not he denied that, in one wnHC of the word, the Act of which appellant i.s accust'd is a crime; hut it is equally plain that it is not a crime in the soimc of siih-sec. 27, sec. 91, of the K N. A. Act. Now if the si^inilicatiou attached to the word ' criminal ' is restricted, when referring; to law in thisstdi-section, why shouhl it he used in a different sense when ai;»li"d to proiedine I* It cannot he ])resumed that in one short iNira^rap! ,j>articnlarly a para- graph '»f an ennui'-nU'onof powers, the U-^'datuieshonid Have intended to api)l, two different meaninfjs to the same word, especially when liy doing so they woid, to the effect timt the legislature had po\ter to legis- late in regard to tlu> proce hin ^^9»^.> m B\.A. APT, s. 02 (11).— PT^OVINCrAL JUmOATUT^K. 323 ill tliocoiirtH of tliiit province, nini roiiM iimkf nilis to fjovcrn flif nriKcdiiiv in nil nmttcrs wliidi (•iiiiir williiii tilt' li"risiiitivc ,jnri«i- ilirlimi of tlic|>i'<)Vin<-inl l('<;isiiitMr<', mill rollM (Iclr^'lltc this powtT to tlic Liciiti'imrit-(Jov<'rnor in ('(»uii- (11; mill timt tlic Jndioiiil Distrirf Art, 1H7!>, 1- Vict. c. 12., imliratin^r thcsi'i'iidiisof llic provincf wlicn-in • 111' juil},'i's should ri'sidi', wii.s valid, tiiiil did iipply to tlic judjjcs iip- IKiintt'il hi'fon' 1M75). See The Alt.-(i('ii. of Ciinada v. Flint, 12 S.C. N'.S. (.'} Huss. &. field.), 4W; Jim. Hi, 1H8 1, 1() S. ('. H. 707. Kko. v. Was.i.v, Mareh 4, 1H90, 17 (). A. !{. 221 [liefore Ha^irly, ('..I., Hiii'lon, (Wer, and Maelen- imii, .IJ.A.], was an appeal under ."il Viet. (Ont.) e. ."{2., which cimcli'd that persons supplyin^j skiiiiiiii'il milk, &.i'., to a butter iimiiiifiii'tMrcr willudit notilyinj; the siiiic wiiiild 1m' lialdc on convi<'- limi III III' lined or imprisoned v. ith limil liilionr. 'l was arf^iied foi' llirCiowii lliiil if Ihi'olijection heli! ;:ipiiil lliiil I he Act was iiUrii tires III r.'iii>i- it li'i'iiclii'il on the ei'iniiiial i;i\v, iiiilliiii;; whalt'MT eouhi he iliiiii' lowiirds the e.xeention of the Irtw iiiili'<-i till' Dominion choose lo proviili' inoreilure ; and thus the iii- riTililili'ii'Mili Would lie 'cached tlml ii siiviTi'ijjii Icfjislative power mijjhl III' lift iilis'.ilulely impotent, heiii;^ ilrnriidf,!! upon anotlier legislative [iiiwir ior iiic niaehinery willionf which iis law iiiust remain ino[>ei'a- livi'. A conclusion so nionstnuH slumlil !,■• rejected. [Kxtnicis from till' jiiil'.'iiiciils are given fiut(, || 10(1.] In Ut Cm MY CoiuTs ok iJiii- TIMI foi.l MIllA, Dee. l.'J, 1H})2, '^\ S. I'. |{. I |(i, it was held l.y .'^Iroii-r, (iwyiuie, Pattersoii (and THSclieicaii wilh some donlil), •M., lliiit the Acts of Ihe Leiri.s- liilnii' or Hiiiish Coliimhia, ('. S. " ('■ c. 25. s. 11, autlio'i/iii}; "iiy coiuity coiut judfje to act as >iu'li ill cci'iain ea.scs in a ili.stricl liiriTigii Co- I.I'MIIIA. other thnn that for whieh he wn.s Hf County ap|>ointed, and the .l.'l Viet. e. H. <'wnt8 op s. J), which provides that iiiitil a <'oniily court Judaic of Kootciiay is appointed the juilj;c of the county (•(MHt of Yale shall act as such, were Infra rtrrs of the Hiitish ''oluniliia lii'ifislalure. This was a sju'cial ease referred to S. ('. uiiiler see. -1, 51 & ')') Viet. e. 25. Strong, .1., after saying these Acts were iiitru lires, .said : " My reasons for this opinion are that such legislation was a valid exercise of the |K»wei <'>.nferred upon the provinces l>v .snl)-see. 1-1,' see. 02." . . " The powers of the Fedc al llf>verniuent j^k,,. «. Wason, respecting jirovineial eonrt.s are limited to the appointment and payment of the judges of those c. 'rtsand to the regulation of tln-ir procedm-e in criminal matters. 'J'he jurisdiction of Parliament to legis- late as regards the jurisdiction of the pi'oviiicial courts is, I consider, excluded liy snli-sce. 11, .«ec. 02, ina.smuch as the constitution, main- tenance, and organi/alion of pro- vincial eonrts i)lainly includes the power to deiiiie the jiirisdidion of .such couils territorially as well as in other resiteefs. This siH'ins to me too plain lo reipiire demonstra- tion, i'licn, if the jurisdiclinii ol' the couils is to 'te delined liy the proxiiicial legislatures, that must nceessiuily also involve thi' jiiris- tliclioii of the judges who constitute such courts. If this were not so, it would he neces.sary, whenever the teiriloriiil jurisdiction of a countv court was altered or eiilarged, thai recourse should l>e had to federal legishitioii under the general re- served powers of Parliament, to sand ion the change, or that the judges should lie re-appoiiiled liy a n»'W coiiiuiissioii. 1 think il clear that I'arliiiiuenl in such a niatter eonld not legislate without infring- ing the exclusive powers of the ]i!'(i\ ineial legislature, and the notion that a new commission would he reipiisite in every car-e of an cnlingeiuent of the territcni'.!! in!'i.s«liction ot ain' of the courts le X 2 JM I tf I'! lie CofNTv CdUUTS OK Dkitirii Citi M'MIIIA. 324 B.N.A. ACT, s. 02 (15).— PUNISHMENT AND CRIME. (|iifsti(>ii is tass su<-h a law [an Act of On- tario };ivin{» power to the \Avn tenant-Go\ernor to appoint polico inaiiistrates] must r»'st exchisiveK with the local le<;islature. , . The ollice of police ma;;isti'aie is the si/nple creation of an Act ii|' the le<;islature, and in crcatiii;r tlu' otiice it hn appointment should he made. The power of appointment mnler the Act in question is <;iven to tlic Lieutenant-dovernor in ('oimuII. as the power was };iven under c. U)l. of the C. S. C. to tlu' (Jovcrnor- (loneral in C'oiuicil to np|Hmit nuifjistrates or justices of the |K>ac(' under that Act. . . In nivopinien, justices of the |M'ace are part of tiic .system of tlu- administratinii of justice in the province, and, tliere- fore, undef suh-sec. 14, sec. !lli, the rif^ht to Icfjislate as to their up- pointment is expressly coiiferrcd u])on the Icfri.^lature of tlu' province, and, therefore, Mr. Younj; wiis duly appoint<'d police niai;istriiti' for the county of llaltc;." ; '' lIoiK^K V. Tun Ql KO. (15,) The imposition of punislnncMit, hy fino, penalty, tn* iin])ris()nni('nt, lor ('nl'orcini!; any hiw of the ju'ovinct' nnulc in ivhition to any nitittcv coniinij wiiltin atiy of tlu' classes of snbjects cnuinorated in tliis section.' ' A local le<;islature can enforce laws h> ruie, penalty, or iniprison- uieiit, witliont dci'larin;; any lircach of thiJx' laws a crime. Minister of .Just ice. 2 .Ian. lH7;i. Pro\. Iic<;. 1S77. p. 715. In 11oi«;k r. Tin. (^ii-:i:n, in ("t. App.. Out., ."{O.lunc 1SS1», 7 (). A. 1{. 2I(;; in P.C. !).<■. 15. IMHIJ, !>App.('as. 117; .i.'J L. .1 P.C. 1; .")(» L. Y. 'M)\ [suh-sec », s^e. 1)2], the .ludieial Cunimittee uplielil the \;di(lil\ of the liicpior liicense Act, U. .S (). 1H77. c. IHI.. Iiy which the Ontario lie);islature appoin'cd license eommissioia'rs to act in ei.'li nninicipality. mii>1 dclei« within tile iimnieipalilN ; for limit- Jno; tile numher t licenses; for decliirin|)<'(ts with, tlic jiowcrs then li('i(iii;.'iM;; to innnicipiil institutions iiiKJiT tlic previously existing; liiws passcii li.v tlic local parliiiniciit," iinil thai it iliil not interfere with the Caiimla Tcm|)erance Act, 1S7H, the valitlitv of which was atnniied in KiisscllV. Tile Queen, S. C. N . H., ISSl; ill I'. ('. .Mine '_>.'{, lH,s2, 7 App.Cas. 82i); 51 L.J. !».(' 77; Iti I. T. S8!) [suh-^e(•. S), sec. '.)'>]. The Judicial Coniniittee said [!) App. <"as. p. I'M)] the principle wliicli iliat case [HusseH's] and tlie ease of the Citi/eiis' Insurance t'o. r. I'arsdiis, in courts helow, 4.'} V . i\ li R2(il; 4 (). A. K. 90; 4 S. ('. H. 21"); in I'. ('. Nov. L>(;, IHHI, 7 App. Cas. 9(!; 51 L.J. P. ('. 11; »oL. T. 721 [suh-sec. l.S,se<'. !)2], "illustrate is, that subjects which in one aspect and for one pur|)oso lull within sec. !)2, may in another iis|H'ct and for another purjiose fall within see. ill." [Srr antt; \'. 111.] Anil they Itcing eh'arly (if opinion {ante, p. 112) "that the rcsohititui.s wore merely in the nature ot iniinicipal or police rcfjii- lations ill relation to licens.d l!(ai.>^'s. and inlerferin}; witii liberty (if action to the extent only that was necess'iry to prevent disorder and the ahu.scs (>f licpior licenses."' . . '* If, lis their Lorilships lia\<' 'Iccidcd, the sillijects of le<;islation iiMie within tile ]iowcrs "•' the prijvincial lefjislature, ''ic ; sub-sec. lo of s«'e. *>2 is applicalile to the cns' liefore us, and is not in eoitflict with suIkscc. 27 of .sec. f)l. Uiidr-r liu'Hcv-rvjrene'Vii terin.s, 'the inipo- "ilidii of i.,i!i'' liment by iniprison- laent I'or enforcin<; any law,' it wnist.i their Lordshi])s th .1 there i" iiiilKirteil an »u:hority to add to 'he conriiieiiH'iii or restraint in jTixm timl which is fioiiendlv incident to it— 'hard Inbcair'; in I'lher words, that ' imprisonment, ' there uicHiis restraint by cuiilinc- IiK(i. i.rv. I'UAW- ment in n prison, with or without IIowk c Tub its usual accomiianiineiit 'hard '^"•'^'■'< hibour.' " The Minister of Justice con- sidered. H May lHHO,thal the Hritish Coliimbiii Lcfjislature was within its rights in passiniKisite totiiiscase. The first and I i.e one material quest ion as bearin<; on this case, was, whether it was in the jiowerof ('on<;resstoesta- blisli a national bank, the Constitu- tion, in the pow^ers eu'iiiurnted, not {jiviiifj authority to do so. 'I'iie learned Chief .Justice also, in the words of Vattel, says : * In consider- inj; this cpie.stion, then, we must never forp-t that it is a constitu- tion we are ex|)Oiindinp."' His Lorilship then said there is much more in tliat jud;;ineiit beariiif; on sub-see. 1.'), sec. 92, and con- liiiued : "The point, sluutly, is iliat the provincial legislatures had, as incident to their constitution, the power of enforpiuf; the laws niade iiy them in relation to any matter comii!('ct to the obji'cts coin- niittcni}i<;f coiitiniicil : '* 'I'lio powers iissie • nocessai'v and proper ' for carryiuj^ them into execution. After com- nientinst beiH'licial to the peoi)le. I.ct the end l)e K'gitimatc ; let it lie within the scope of the Consiiiu- tion,and all na-ans which are ap|irii- priate, which are plainly ad.ipleil to that end, which are not prohiliitnl, but consist with the letter ami spirit of the Constitution, are (•on>ii- tiUional.' I make no apology for (|noliug so largely from the jadg- nient of Chief Justice Marshall. It eiiunciiites clearly aial forcilily con- stitutional itoctrines which, fruui the miture of the Constitutina ol the United States, have been la'ces- sarily presented to the consideration of the judges of that counti'v more than has becu the case in Kuglaml, and which, since eonie*oii- iiiriil with liiinl liiliuiir." Ill Uv.u. r. ]l»)i)(iK, 7 (). A. ]{ |). li7H, Hiiiloii, ,I.A., siiid : ••It is tnu' lliiit J'lirliaiiiciil — till- I'liiicil lviii;i;(l Ijdth Id tlic Doiniiiioii and id till' iiroviiift's tlic coiistilii- lioiis iiiKlcr wliu-li we live; liolli liuiitcd ill I'.vtciit, but Itolli };iviii}; iv|ii'('S(>iitativ<' institutions, and I'iviii);: I" lilt' li'f^isiaturfs clcclfd in the iiiniiiu'i' tlicri'iii pdintt'd out, |ilciiiiiv |)o\vcrs of lej^islatioii witliin liirir icspcctivo .splicrcs m lari^c ami as ainplc as tliosc of the linix'i'ial I'ai'liaint'iit itself. [^rSir liiiacs I'cacock in lIod;ic r. The timrii, (iiitr. \>. 14'2.] The h'j^isla- lui'c so electetl lias a deh'^jated iiutlKirity it is true, but it is of the siiiicciianieterastlmt of the Imperial riiiliaiiii'iit, who are eoUectively the iliKpitcs of the whole people. If tiicscaie iHiwers whieli the lni[)enal rmiiaiaent eould have .T 1 I .1 •! -i-x !• Att.-CIkn. OF p. l.i.)J, precludes the possibility ol ().,t.akio. any doubt as to the rifjlit of the provincial legislatures to impose piiiiishim^nt liy line ami imprisuii- meiit as sanctions for laws which they had power to enact. The c«s« of the Hcceiver-Gciiond of Nt-w Urunswick r. The Maiiiimo Bank [see snli-scc. 13, s«'c. 92] definitive- ly establishes that the provincial Licuteiiant-Goveriior appointed by the {Joveiiior-tJcneral under the great seal of the Dominion, pur- suant lo the i>rovisions of tlu! B.X.A. Act, reiiresciits the Queen." He continued: Had he been coiu- pellctl to decide it, he wuidd have iield *' the jiowcr of cumniuting scfitcnccs" was nothing h'ss than the power to pardon. "By the law of the Constitntioii,or, iu other words, by the common law of England, the prerogative of mercy is vested in the Crown not merely as regards the territorial limits of the United Kingdom, but through- out the whole of Her Majesty's dominions. The authority to exercise the prerogative may be delegated to Viceroys and colonial Uovernors representing the Crown. Such delegation, whatever may be the conventional u.sage establi.'*heH [Act in (piesiion there liiin^r ;{| (ieo. .'{. c. (5. of li. C.,ap|Miiinli|r Mihu'l, ilecided hy the .liiiljiial Committee with refereliee In tlir jurisdiction of a eolonial li-;;islniiirr to limit appeals to the Cjiiei'ii in Council, would, if not direct authorities, have had at least a \{'\\ material application to the iin'stiit ipicstion. The jud;;iuciits delivcmj ill the S. C. of Victoria in the nise of Chun Tcon, ini)jht also jmvc alToidcd us fjieat iissistanie " ; Init lhes4- ipie.'-tions his riordshipdid not decide. Chun Tconj; Toy r. Miisfirovc was appealed to the .liidicial ('(iiii- mittcc, and it was there held that in such ii cas4> it was not neecssiiry to decide the f|iie>ii(iii what ri^rhts the Victorian (loxerii- mcnt had under its const itiitinn derived from the Crown, it liiiiij; siifncieiit for tlic decision of the case that an alien had no le<;nl i'i;,'lit eiiforceahle Ity action to enter llriti.sh territory. [Sec March 18, [1801] A. C. p. 28.'}; 00 L.J. I'. C. 28 ; 04 I,. T. 378.] ill lloiiiK ''. 'I'll I-: 'i'KMi'ciiiAi.nir.H lluAUII. (1(5.) Goiiomlly, all iniitter.s of a imnvly lociil or private iiaturo in the province.' ' All Act of I'arliament created for two provinces and for ad- vantage to both, such an Act can only Im- idt«>red hy a parliament liavinOMINIOX 11AII(|iiii'('il a Doiiiiiiioii Art. Scr A li'i'iil Act I'Miiiiot lniii>r('r to iiiKillii'i' ('()iii|itiiiy tlit^ |>i'(i|ifi't y i>t' 11 iiiilwiiy coinimny innir|«>iiii( S. C. N. ». (.'{ I'llJiS. mill Hiir.) 1:J0, Allen, C.J., siiid : "Hiiil tliis Act [tlic C'luimlii 'IViupcraiicc Act, 1H7HJ proliiliitcil the sale ol' liquor, iiistcatl ol' iiiiTcly icslrictiii;.; and ic};iilatiii}i it, I should have had no doiilit alioiit tlic power of Parlianu'iil to puss such an Act ; liiit I think an Ai-t, which in elTcct aiitlKii'ixi's the iiihahitants ul' cacli tdwii or parish to rcf^ulate the sale (if liipior, and to direct by whom, for what pui'i><>se, and under what c'oiiiiitioiis spiritiiou.s lirpiors may Im- sold therein, deal.s with matters of II merely local imture, which hy the terms of the 16th siih-.sce., see. 02, of the H. X. A. Act, are witliiii the e.veliisive control of the local Icjrislatin-c." Hut in HussELi, r. Tiik C^itickn, inS.C. Jf. B. 1HH1,20S. C. N. 13. (ll'ii'rs.audB.)53(l; in P. (.'.June 2:{, 1SS2,7 App. Cas. 820, p. 811 ; 51 L. -I. J>. V. 77; 1(5 L. T. HHO [see siih-sec. 0], the Judicial Committee said tiiey coidd not concur in that view ; that in slalut»'s of that kind the h'^jisla- tioa is general, and the provi- sions for the special tipplieatioii of it to particiihir places docs not alter its character [.v^r end of jml<;- miiit ;;iveu sub-sec. 0, «»»/<■, p. 13oJ; that it did not convert the Act itself into legisktiuii in relation to local matters. OK l'"PKDKIIIC- TUN. In IfoiMii-: c. Tiik (-Ivr.r.y, llm-'tK n. Tan ;ioJuiic 1HH2. 7 (). A. U. 2J«5; '^'"'''• ill I'. ('. Dec. 1.), 1,S8:{. App. Cms. 117; .").» li. J. I'. ('. 1 ; oO L. T. \W\ [.v«T siili-scc. 0, sec. 02], t'le .liidicial ('omiiiittce upheld the power of the provincial leroviiicial Act, the 33 Vict. c. 08., is one of those which by the 01st scetioii of the Doiuinion Act are reserved exclusively for legishition by the Dominion Legishiture. The .seheme of the 01st and 92nd Si>c- tions is this. Ry the 01st .section some matters, — and their Lordships may do well to a.ssume, for the argument's sake, that they are all mati -rs except those nfterward.s doilt witli by the 02nd sec-tion^ their Lordships do not deuide it, IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I hitgB |2.5 1^ 2.0 1.8 1.25 1.4 1.6 — — — = < 6" ► V] vQ ^M ■w/ /a '/ /A Hiotographic Sdences Corporation '4^^^^ 23 WEST MAIN STREET WEBSTER, N.Y. MS80 (716)872-4503 'v- €- 1^ in ii:i;| i :ii h L'Union St. Jacques j>" montheai- v. 1)AMK JUME liELItiLE. 330 B.N.A. ACT, s. 92 (16). -RESERVATION FOR DOM. but for the iu'<;niiu'nt'.s tuxkv they will ii.'isuiiio if, — certain matters, being iiiuni that assumption all those which are not mentioned in the 92n(l section, arc reserved for the exclusive legislation of the Parliament of Canada, calle.' Jf there is no- thing to control that in the Ulst section, it would seem manifest that the subje- e '^cr-jf this Act, the 33 Vict. e. ;'>,, is -i matter of ii merely local or y, .'e nature in the province, bee; "tt- ., relates to a benevolent or biU' tit .society in- eorpomt"d in the "ly oi Montreal within the province, •.vlnch appears to consist exclusively of mendiers who would be subject y;;7"y« «_/ that the reforencp Iiere to soparato and dissentient schools is specially to schools of the Pro- testant and Catholic; and it is t'lliially clear siib-sec. 3 applies only to schools oi' a like character exist- ing in any of the four provinces. But be was at a loss to understand why sul)-secs. 2 and 3 should be held to control or in any way limit or affect 11 previous distinct enactment — sub-sec. 1 — couched in plain and unambiguous language. Mahek v. Town of poiitland. (3.) Where in ai^y province a system of separate or dissentient schools exists bv lav/" ^ at the Union c or is thereafter established by the lecjislatiire of the province, an appeal shall lie to the Governor- General in Council^ from any act or decision of any provincial authority affect- ing any right or privilege of the Protestant or Roman Catholic minority of the Queen's sub- jects in relation to education. !if I In the Act of 1870, 33 Vict. (Doin.) c. 3. (affirmed bv Imperial Act, 34 & 35 Viet. c. 28."), creating the province of Manitoba, the only iinportiuit difference between the iibove section and that in the Mani- toba Act [see p. 3G9, pnsfl is that in sub-sec. 1 (which is a similar section to the above) the words " by law " are followed by the words "or practice." Manitoba before the Union was not an inde- pendent province with a constitu- tion and a legislature of its own. It formed part of the vast territories which belonged to the Hudson Bay Company, antl was administered by their agents. The po[)ulation ohhe whole of Manitoba in 1870 was I8,ni)5, including (5,767 In- ilians. and in 1870 Winnipeg, a city containing 25,042 in 181)1, coutained only 203 inhabitants. The .ludicial Connnittee held, in Barrett's case, that the Manitoba provincial legislature Avas within its powers in passing the Public Schools Act of lb90, which schools City of Win- siPEO t'. ]}aii- BETT AND Loo AN. were to be entirely non-sectarian an, 1' '' ;S : ' 'M .* ■:■ '.■'■ \ i ■ ■ t ; ) i y. i ;if : i 1 Protestfint Universities. Schools. Opi- nion of Minis- ter of Justice. 334 B.N.A. ACT, 8. 93 (4).— THE PROVINCIAL BAR. testant universities and schools of Quebec in respect to tlie admis- sion of students to the .study of the hiw. The piijjers, howevei', showed that tlie present (leneral Council of the Bar consisted of seven Konuin Catholics ;in new Act, 34 Viet. e. 21., provided that any sum required for any dis- trict above the sums provided by the province and county .should be a charge upon the district and raised on an assessment. Sec. 00 ])rovi(Ie(l that all schools conducted under the provisions of the Act should be non-.sectarian. This Act was considered to injuriously affect the rights of the Roman Catholic commiuiity, and the action of Henry Maher v. Town of Portland was raised by an ex parte application I 1 B.N. A. ACT, s. 93 (4).— DENOMINATIONAL. ^35 to require the Town of Portland to show cause why a writ of cor- tiorai'i slionld not is.sno to (luasli an Older of assessment made under the Act. See post. 'I'iic law ollieors of tiie Crown, Cdlrridjre and Jessel, 2i) Nov. 1S72, fjave it as tlieir opinion "Tiiat wliatever may have heen tiic practical working of the annual ciliication <,'rant in the province of Xi'W Brunswick, the Roman Catlio- lics of that province liad no sndi ri^lits, priviietjes, or schools as are tiic subject of enactments in the B. X. A. Act, 1HG7, sec. 93. It is of course quite iossihle that the new statute of i le provinces may work in practice nnfa\oural>ly to this or that denomination therein, nnil therefore to the Roman Catho- lics, Imt we do not think that such a state of thinjjs is enough to hring into operation tiie restraining powers, or the powers of appeal to the Governor-General in Coun- cil, and the powers of remedial lc;;islation in the Parliament of the Uoniiuion contained in the 03rd section." On 20 Jan. 1872 the Minister of Justice [John Macdonald] gave it as ills opinion that as the Act iijiplied to the whole school sy.stem iif Xow Brunswick and Avas not specially apphcid)le to denomi- national schools, the Governor- (Tcnond had no right to intervene. Prov. Leg. 153. On I March 1871 it was resolved by the New Rnuiswick Legisbiture : — " Where- iis petitions numerously signed have heen presented to this House pray- ing that such amendnuMit may be made in the Common School Act, 1871, as will sectu-e to Her Ma- jesty's Roman Catliolic subjects of this province schools generally ■gislatur(( to inter- fere with or repeal the Acts creat- ing sw\\ a system. And whereas certain ((.\clusive rights have been vested in the legislature of this province, guaranteed to it by the terms and provisions of the British North America Act, 18(57, the en- joyment of which is essential to the welfare of this province and the harmonious working of the Constitution. "Resolved, that after careful consideration of the said petitions, and while ailirming that various im- portant changes may advantageously 1)0 made from time to time in the Acts I'elating to education whereby the burdens imposed by the .said Acts may be lightened or made to fall more equitably, this House is of opinion that no change in the said Acts should be nnide whereby special |)rivileges in respect of denominational education shall he grant(>d to any class of persons in this province. Resolved, that in the opiuion of this House no Acts should V": done or passed whereby the jurisdiction ancl powers of the legislature established by the British North America Actj 1867, shall be impaired or curtailed without the sanction of the people of this province previously ex- pressed at the polls, and, therefore, resolv(>d that this House regrets it cannot comply with the prayer of the .said petitions; and further re- .solved, that this House most re- spectfully but firndy maintains and submits that no Acts should be done or passed at any time by the Parliament of the United Kingdom of Great Britain and Ireland, or by the Parliament of the Dominion of Canada, to impair, curtail, alter, or withdraw the said rights, powers, and juri.sdiction.s, or any of them, without the requisition or consent of this legislatui'c for that purpose :i 31!. ! i i UK! ' I < Address vote nio.st humbly pray that your Majesty M'ill be graciously pleased to use the influt'uee of your !Majest_\ with the Legislature of New Brunswick to procure such a moditication of the said Act as shall remove such grounds of discontent." This address was foi'warded to Her Majesty, ami the Eai'l of Car- narvon, 18 Oct. 1875, after stating this addi'ess was receivi'd liy Her Majesty, but he was not able to advise Her Majt'sty to take any iic- tion respecting it, said : " (2) 1 con- cur that legislation by the Imperial Parliament curtailing the powers vesti'd in a province by the British North America Act, 18(57, woulil be an undue interference with the provincial constitutions, and with the terms on which the provinces con.sented to become members of the Dominion. And holding as I do this opinion, while I cannot hut feel that if I were to recommp'd the Queen to intervene direc^tly in this mr.tter by advising that Icgis- latuiv to legislate in any particular direction, I might be deemed to counsel an interference with tho .system of govermneiit establislipd by the Act of I'nion not grentlv differing from that which the ad- dress deprecates. (3) For tills reason I have not felt myself at liberty to advise Her Majesty to take any action. At the snme time, there can be no impropriety in my expressing the strong hope which I entertain that, as in other British comnumities, the majority of tlie population in New BrunswicI;, whi"h through its representatives controls the educational sy.stem of the province, may be disposed to adopt such modifications of the existing rules as may render tiiom less unacceptable to those who from conscientious reasons have felt themselves obliged to contest against the system now in force. I cannot, in conclusion, consistiMitly with my duty, refrain from observ- ing that as education is one of tiie subjects expressly and exclusively reserved to the provincial legisla- ture by the British North America Act, 18G7, it is for the serious con- sideration of those in New Brun.s- wick who take an active part in ndation to it, whether there can lie any advantage, and whether there must not be .serious inconvenience, in bringing under public discussion in the Dominion Legislature a con- troverte a virtual repeal of the .section of the Act of 18G7, B.'N'.A. ACT, s. 93 (4).— MTNISTET^S OX ACTS. 337 whii'li ^ivcs the oxohisivp right of It'cisliition in tlicso matters to the provincial logisliitures. Prov. Leg., 1886, p. 12. This (lid noc end the mutter, l)ecnus(' the question was then raised, Conld the Governor-Generiil act on his own individiinl dis- cretion in deciding whether a pro- vincial Act should be disallowed, or was he to he guided hy the advice of hi.s responsible ministers ? Lord Carnarvon suggested that the question was not one on whieh a rigid rule of action .should be e.stablished. The IMinistcr ot Justice, Edward Blake, in a report 22 Dec. 1875, said, inter alia, "The power of (iisallowance of Canadian st^itutes is, by sec. 56 of the British North America Act, 1867, vested in the Queen in Council. By see. 90 of the same Act this provision is ex- tended and applied to each pro- vince as if it were re-euacted, and is so made applicable in terms thereto with the substitution, among other things, of the Gover- aor-Gcneral for the Queen. The result is that, by the express words ',if the Act, the power of disallow- iince of provincial statutes is vested in the Governor-General in Coun- cil, a phrase which, under the 13th section of the Act, means tlie Governor- Gencrfil acting by anil W'tli the advice of the Queen's Privy ("ouncil of Canada. Sup- li(i>inj; that the Act had vested the |)ower of disallowance of Canadian statutes in Her IMajesty, not adding the words ' in Council,' it will not he contended that the power so given conli! he constitutionally exercised otlierwise than under the advice of Her JIajesty's ministers who would 111' responsiide for Her Majesty's iii'tion, and, by ])arity of reasoning, a ixmer of disallowance of provin- Ciil statutes given to the Governor toiild he exercised only under the mhice of liis ministers wlio would ho responsible for his action. It results from the preceding observa- tions that the only contingencies which can arise are': (1) That the S 2340. Governor should propose to dis- DutyofQoTef- allow a i)rovincial statute without "°'' '" Council, or against the advice of his min- isters. (2) That nnnisters .should pr()])ose to di.sallow a provincial statute without tlu; assent of tho Governor. The position taken by the Council is that neither of these things can be done ; tliat the power being vested in the Gover- nor in Council, any action taken must be accomplished by Order in Council, and that a Governor who thinks it necessary that a provin- cial Act should be disallowed must find ministers who will take the responsibility of advising its dis- allowance, while ministers who think it necessary that a provincial Act should be disallowed must resign unless they can secure the assent of the Governor to its dis- allowance, ministers being in every ease responsible to Parliament for the course taken." The Minister of Justice goes on to show that the question is not the same as the exercise of the prerogative of par- don, because there the Governor, to whom personally the Queen delegates a very high prerogative, that of pardon, cannot in any way be relie\ed of the duty of judging for himself in every case in which that prerogative is proposed to be exercised. On 31 Oct. 1876 Lord Carnar- von said his view was not one he was prepared to insist strongly. Sec Prov. Leg., 1886.. Reform.\toby Schools in Pro- vinces. — New Brunswick passed an Act, 38 Vict. c. 11, for the es- tablishment of reformatory and in- dustrial s(diools united under one management. The Minister of Justice (Edward Blake), 5 Dec. 1876, reported that the Act pro- viding that the reformatory school, when established, .shall be a re- formatory prison, and the B. N. A. Act authorizing the establishment of reformatory prisons bj the pro- vinces, this subject would appear within the provincial jurisdiction. ■1 •,;.l : I Schools. Further opinion. 338 n.N.A. ACT, s. 03 (i).—r. E. I. SCHOOLS. Princp Edwnrd Tslnnd Legisla- tiiro passed the Publii; School Act ol' 1H77. Tliis Act rcpcidod nil previous existing laws on the snine snlijeet, and appointed a Board of Education and inspectors. The Act provided tliat the support ol" the scliools should come from locid assessment, and from assistance provided by the provincial trea- sury. Sec. 02 enacted that all schools conducted under the pro- visions of this Act shall be non-sec- tarian, and " the Bible may In.' read in all such schools, and is hereby authorized, anil the teachers hcreliy required to open the .school on each school day with the reading of sacred scripture by those children wliose parents or guardians de.sire it, Avith- out comment, explanation, or re- mark thereupon by the teacher; but no children shall be required to attend during such rending as aforesaid unless desired by their parents or guardians." After the pas.sing of the Bill the Bishop of Charlottetown presented to the Lieu- tenant-Governor a memorial re- questing him to withhold his assent, on the ground that it interfered with the rights of the Roman Catholic conununity of the pro- vince, as secured to them by the 0.3rd section of the B. X. A. Act. in a The Minister of Justice, long rei)ort [which will be fcmndin Prov. Leg., 18HG, p. 880], said: The provision of the Constitu- tional Act which .secures to any pro\ince a system of separate or tlii».sentient schools rc(iuire.s, as a condition of interference by the Federal authority to maintain that privilege, that these schools shotdd be separate or dissentient in their nature by virtue of the law exist- ing at the date which the province joined the Union. And that it was not contended that there was any provision in any of the previous Acts of the Legislature of Prince Edward Island Avhich secured to any sect the right of establishing an independent school. That the argu- ment of the bishops seemed to be that although there was not in existence any statutory ])rovision empowering the Catholic conunu- nity to establish an<1 lu' re- be U'ftto nister of \e. HE Tows the Judi- n's Order ,)(irt from the Jutlicinl Coinniitteo, nffirmed the judgnioMt of tlic Supremo Court of New Brunswick, (luted 17 June 1873,1 IS. C.N.B.(iruf,'s.), 273, wiiifli court refused to ^nint a rule to roiiuire the Town of Portland to show eai'so w'ly a writ of eer- tiorari slioulil not lie issued to quash nii order of assessment nuule liV the respondents under llu^ Connnon Schools Act, 1871, 31 Vict. (N. B.) c. 21. The Supreme Court y iiis parents or fjnai'dians ; and the Uoiinl of I'Mueation sliall, l)y T'^h- liitioii, secure to ail cliildi'en wlujse liarciits or fjiairdians do not ohjeet to it tlie reading of tin- Uihl.' in l>iiri>li sdiools, and the JJiMes, wlii'ii read in parish schools liy KiiMian Catholic children, shaii, if i'i'(|aired hy their parents or ^dnr- (lians, he the Doiiui/ version, ^vith- (iiit note or comment." Sec. 11 and I'ciilowing section made [)rovisions for assessment wherever any county, parish, district, or innnicipality de- tiTuiiiied to i)ro\ido for the snpport of schools therein by assessment "Such asses.sniont to he le\ieu ruii I'oilf'cted in the same manner, iu all rcsiiccts, as other cou:'i . or pari.sh rates." Sees. It, 15. A public meet- ing of till.' rateable inhabitants of any parish or district might be called by till' trustees for the purpose of de- tei'Miining upon the propriety of raising the necessary amount re- quiroil for school purpo.ses by as- sessment. If a majority of the ratepayers present should agree to raise a sum by assessment either for the support of the teacher or oi'rtaiii other purposes specified in tlu' Act, the chairman of the meeting was to transmit the \ote or resolu- tion specifying the sum to be raised to the assessors of rates for the parish, and the assessors were to make out the assessment list as near as might be in the form pre- scribed for county or parish rates, and deliver the list to the collector of rates with a precept endorsed tliereon. Sec. 24 provided tliat any ilistriet school supported by assess- ment should 1)e free to all the chil- ilreii residing therein. Se-i. 27. Tiio Governor in Council was to issue warrants on the Province trea- sury for the payment of the several allowances and salaries provided in Maiikiu'. Town the Act. This Act was anuMided <>r 1'outi.and. (2(5 Viet. c. 7.), which mci'cly gave power to the Hoard of Kdiicatioi to order a redivision of districts. The respoiulents observed in their case that the parish .schools con- templated by the Act, of which the main proxisions have been above set forth, in substance were of two kinds; iirst, .schools supported by an as- sessment on the ratepayers and also receiving grants from tlu' provincial treasury, and, second, .schools not supported by assessment and re- ceiving grants from the i)rovincial treasury to an amount less by 10 per cent, than in the case of schools in which the principle of assessment should be carried out. And they submitted, as regards as well the pari.'ised it in a popular or more enlarged . sense, courts will so construe the language used. We are at a loss to discover anything in the B. IS'. A. Act, 1867, indicating a legislativie intention of using the words other- wise than in their ordinary mean- ing. It is clear enough that the reference in sub-s.c. 2 to .separate and dissentient .schools in Ontario and Quebec is especially to schools of Protestants and Catholics ; and it is, perhaps, equally clear that sub-sec, 3 applies only to schools of a like character existing in any of the four provinces. But we are at a loss to understand why sub. .sees. 2 and 3 .should be held to control or in any way limit or affect u previous distinct enact- ment, couched in plain and lumin- biguous language, and whicli, liy (piit(^ as clear and uneipiivociil terms, has relation to all classes nf persons or denominations, and toiiil the provinces of the Dominion ; or why, because separate and dissen- tient .schools as between Protestants and Roman Catholics, not only in Ontario and Quebec but in any pro- vince in which they may exist at the Union, or be thereafter estab- lished, are provided for and pro- tected, therefore we must necessaiily infer therefrom that in using the term 'denominational schools,' in sub-sec. 1, the legislature inteiidfd to legislate only as between Eonian Catholics and Protestants, and then also as to schools not ne( ssarily denominational in the ordinary iic- ceptation of the term. We think that the term ' denomination,' or ' denominational,' as generally used, is in its popular sense more frequently applied to the different (h'uominatious of Protestants than to the Church of Home ; and that the most reasonable inference is that sub-sec. 1 was intended to mean just what it expresses, viz. : that 'any,' that is, 'every,' class of persons having any rights or privileges with respect to deno- minational schools, whether such class should be one of the nume- rous denominations of Protestants or Roman Catholics, should he protected in such rights. If it had been intended that the clause should have been limited in its apphcation to Roman Catholics and Protestants only as dissentient one from the other, and apply to schools otlier than those usual- ly understood as denominational schools, is it not fair to assume that the legislature would have used some expression in the sub- section itself indicating such a par- ticular sense, especially as we have seen there were at the Union, in BN.A. ACT, s. 03 (4).— NON-SECTARIAN SCHOOLS. 3S8 this province ut iiuy rati', strictly ili'iioininiitioiml schools, both Pro- ti'stiiiit iind Roman Catholic, to which such u (•Iniisc would ho ap- nlictililt' ; iiii'l for the vpit reason also that when dcalinfj with schools ii< hctwccn Protestant and Roman Ciitholic in sub-sccs. 2 and 3, the liiii?naI;;y it not still evi-f, pro- vided alwrys it is a ri},'ht wliich legitimatel" comes under sub-sec. l,see. 9,'}? Because that .section declares that notl'iii;^' in any such law shall prejudicially affect any such rifjht ; and, in such case, readinfj thn common school law by the lif^ht of this s«'ction, woidd it not bo the duty of the JJoard of Education under the Common Schools Act, instead of makinf» regulation 21 declaring as fol- lows : — ' That it shall be the privilege of every teacher to open and close the daily exerci.ses of the school by reading a portion of scripture (out of tho connnon or Douay version, as ho may prefer), and by offering the Lord's [)rayer — any other prayer may be used by permission of the Board of Trus- tees — but no teacher may compel any pupil to be present at those exercises, against tho wishes of his parents or guardians, expressed in writing to the Board of Trustees,' to secure by regulation just what the Board of Education were bound to secure unarents nuiy choose, Init as tlu' teacher may prefer, IImiu^'Ii h(! cannot comiiel tho atlemliuici' of the pupils, is not for us t') at- tempt to explain ; wo simply pdint out tho fad. But if the liglit secured by the Parish Schools Act is |)rotecto(l by tho B. N. A. Act, wv fail to see, because tiie Bdunl of Education may not have luiulc such a rognlotion as they ought in such a case to have made, or have made a regulation they ought not to have made, that the action of tho Board, or its non-act i(m, can render the Act of the h'gislature in- operative, ir the right and privi- lege! fall under sec. 93, and il' tlicrc is no power to compel the Hoard of Education to makt* such a regu- lation, or tho legislature tiiiould have inserted a clause in thi^ t'oni- mon Schools Act requiring tlicin to do it, is not this ju.st such a case where sub-sec. 4, sec. 9,3 of tho B. N. A. Act applies? [Heads sub-sec. 4.] In this connection we may refer also to the 20tli re- gulation, which, it has been con- tended, prejudicially affects the rights and privileges which tlie lloman Catholics had under the Parish School Act. This regula- tion declares that 'Symbols or emblems distinctive of any national or other society, political party or religious organization, shall not be exhibited or employed in the schoolroom, either in its general arrangement or exercise, or on the person of any teacher or pupil.' BN.A. ACT, H. 98 (4).— WHAT LEGAL RIGHT. 365 It may l'** •'m' 'l'^ nonnl of Edii- ciitiim liiivo (lisrcj^iirilt'il tlm general iiolicy of tlui t'oiiimoii Si'liools Act, 1111(1 iiiti'H't'i'ed with tlie rij^lits of teiu'lu'i'.x, parents, and cliildrei-, in ixc'liidiii^' I'ntin the seliools uMko tem'lici's and pnpils who nniy ex- liihit on tiifir |)(U"Hon, in (h'ess or orniiinciit, s_vndK)ls or enddeuis dis- tinctive of any initional or other society, political party or religious nijpiiii/.ation ; for however clear tiii'rifjlit of tlie Hoard of Education iiiuv lie to niakt^ regulations neces- siiry for tiie f^ood government and liiH'ipline of the schools, to make niliitniry restrictivo regulations as In the dress or personal adornment (if the teaeliersand pupils, or which aivcaicidated unnecessarily to intor- feic witli tlieir feelings, national, sociiil, religious, in matters not calcuhited to give any such cause (if (iH'eiiee to others, or to interfere with {;ood order in the schools, is ([iiite another question. And while it is by no means clear to us that any power exists in the Board of Education under the Common Schools Act hy regulation, to de- IH'ive teiiehers, parents, and chil- dren of their i-ight of access to the tree schools of the country to the support of which they and all others are forced to contribute uidcss they sulmiit to such regula- tions, and though the assumption of such a power of practical expul- sion by the Board of Education raises a question involving im- portant and delicate rights — rights wiiich in this laud of civil and re- ligious freedom few may be will- ing to see infringed — or, at any iiite, raising discussions which uuist 1)0 impleasaut to those en- giiged in them, and calculated to result iu cousequeaces which can scarcely fail to produce acrimoni- ous f(jeliugs, and in the end be iujurious to the cause of free educa- tion, which, we must presume, the leguiution objected to <^as intended to further ; all we can say is, as the case stands, the regulations "re not before us in such a way that we can deal with them, and Mahrbw.Towm therefore we are not called upon "*' Po'itlank. to express any decided opinion as Ritchie, C.J. to their validity, because! the con- stitutionality of the Act cannot, in our opinion, bo alTectcMl by any re- gulation made under it, there b(»ing nothing unconstitutional in the Act itself that we can discover. The second objection is ejisily an- swered. The provision in sec. 58, sub-sec. 12, of the Common Schools Act, declaring that no public funds shall be granted, would seem to apply to the schools particularly referred to in the preceding part of that section, and not to all schools. But if it was intended to apply generally to all schools, as [the counsel for Maher] Mr. Dun's argument assumes, what does it amount to ? It cannot take from the legislature the right to make such grants. Thus we see in the estimates of the year 1872 grants were recommended by the Lieutenant-Governor, and no doubt nuide, for all the denominational schools befoic! specified referred to [*ee Journal of House of As- sembly, p. 124] ; and if such clause was itltra vires, and we de- chired it void, cui bono, it would not affect the other parts of the Act ; and what wouUl practiwdly be attained ? The legislature could, whether the clause stands or is declared void, do just as it pleases about granting or withholding the public funds. But it was contend- ed sec. 60, declaring 'That all schools conducted under the pro- visions of this Act shall be non- sectJirian,' prejudically affects the rights and privileges which the Roman Catholics as a class had in the parish schools at the time of the Union. It cannot be denied that to the provincial legislature is con- fided the exclusive right of making laws in relation to education, and that they, and they only, have the t ijtht to establish a general system of '-ducrtion applicable to the whole : -IT ince and all classes of denomina- tion^, provided always they have due z 2 (in fl 356 B.N.A. ACT, 8. 93 (4).—" LEGAL RIGHTS.' Maher f. Town regard to the rights and privileges OF PoKTLAND. prot^^cted by sec. 93 of the B. N . A. Ritchie, C.J. Act, 1867. Now what in this case is the right or privilege claimed to have been prejndically affected ? Is it a legal right that could have lieeu put forward and enforced by the Roman Catholics as a class under all circumstances, and in every parish or common school, or is it a legal right confined to the Roman Catholics as a l)ody, or does it belong equally to all and every of the other denominations of Chris- tians in this province, and capable by them of enforcement ; or, on the con- trary, was it not the mere possible chance of having religious denomi- national teaching in certain schools, depending entirely on accidental circumstances, or on what might happen to lie the religious views of a majority in a parish, and then on the accidental result of the election of the trustees and school com- mittee, and on the views of the parties so elected as to religious denominational teaching and their willingness to jiermit it in the schools (admitting that the trustees or committee had any discretion in the matter, which perhaps is more than doubtful) ; was it not also dependent on the Board of Edtication, who had the general controlling power ? If dei)endent on circumstances such u,:, these, how can it be considered such a legal right as could ha\ e l)een con- templated by the Imperial Parlia- ment in passing the 93r(l section of the B. N. A. Act, 1867 ? Where is there anything that can with any propriety be termed a legal right ? Surely the legislature must have intended to deal with legal rights and privileges? How is it to be define(l — how enforced ? It by no means follows as a neces- sary legal consequence, that because a majority of the inhabitants of a parish or school district may be- long to a particular persuasion tiiey would necessiuily vote for trustees favourable to denominational teacli- ing, nor could they I'c compalled by any legal process so to vote, nor does it follow that trustees, when ekcted even by a majority of onedenouiination, would neeessiirilv prove favourable to denominatiomil teaching ; and by what legal pro. cess could they be constrained to assent to its introduction in tlic schools? And again, suppose uji to this point all were favouniblo, might not the whole scheme be ignored by the Board of Edueation, and how then could any class of liersons as such, no matter to what denomination they may belong, claim of right to control oi- direct the acts or doings of any of these parties; or how could electors, trustees, school committees, or the Board of Education, be comiiellcd to make any school in any sciiso denominational, or, in other words, to confer on any such class do- nominational rights ? Surely the rights contemplateil miist have been legal rights, in other words, rights secured by law, or which they had under the law at the time of the Union. If any such existed, they must have been cii- pable of lieing clearly and legally defined, and there must ha\e ex- isted legal means for their enforce- ment or legal remedies for their infringement, for it is a dear maxim of law that tibi jus, ibi remedittm. It was said long ago in a celebrated case, that if a niaii has a right he must have .i means to vindicate and maintain it, and a remedy if he is aggrieved in the exercise and enjoyment of it ; and that it was indeed a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal. \f\\ai pos- .sible legal means could any denomi- nation ha\e invoked under the old Parish School Act, to comjiel any one school to l)e made denomina- tional, or to require and insist that in any one school denominational tenets, doctrines, precepts, or prac- tices should be taught or tised? But then it was repeatedly urged upon us that under the Parish h!^ B.X.A. ACT, s. 93 (4).— DEXOMINATIONAL RIGHT. 367 - ■■{■■ -i, Scliool Aft circumstances might, anil voiT often did, concur wlu'ic the schools might, and in numerous ciisos dill, become denominational ; l)iit that by reason of s€'c. 60 of tlie Common Schools Act such was not now possible. The answer is simply this : — The inability of a I'liiss of iK'isons to ha\ e under the Couuiion Schools Act that which possiihly they might, under certain except ii>nal and accidental circuui- stmices, hasH' liad under the Parish Seliool Act of 1858, but which thev had no right to insist on Imving, is r, damage not occasioned 1,1 iu.ything which the law esteems an injury — a kind of damage teiiueil iu law damiinm absque injuria, and for Avhich ihere is no remedy. And so in this case, as tiiero was no legal right to have ilenouiinational schools or denomi- imtioiif'.l teaching, there is no injiu'y in legal contemplation co'aimitted by the legislature dealing with the iiuestion in such a manner as to prevent the possibility arising, and e( • sequently no right to have the iictiou of the legislature abrogated. It ui.iy be a very great hardship that a large class of persons should he forced to contribute to the siiiiport of the schools to which tiiey are conscientiously opposed, 01' to be shut out from what they Imve hitherto under certain circum- stances enjoyed, and be without ii'iuedy, but by any such cousulera- tions courts of justice ought not to 1» influenced. ' Hartl cases, it has luen repeatedly sjud, are apt to make bad law, and it has also been justly remarked that if there is a jrineral hardship affecting a general elass of cases or persons, it is a consideration for the legislaturt, uot for a court of justice." Fisher, J. : "I concur in the jmlgment of my brethren as to the I'onstitutionality of the Common hIiooIs Act, 1871, but as there are some sentiments in it in which I don't agree, I have thought in a uuitter of so much delicacy and impor^auce it was better to read the judgment which I had written Maheru. Towk than to attempt to qualify opi- ^^ Poktland. nions which my brethren have I'lJ^her, J. so fully considered The right to impose this assessment is ob- jected to on the ground that it in- cludes a sum for the support of schools under the authority of the Act rehiting to common schools, 34 Vict. c. 21., which it is con- tended is unconstitutional, that the legislature have no power to pass it because it contravenes the exception in the Act of Union. [His Lord- ship read the 93rd section and its sub-section.] The exclusive power of legislating upon the subject of education is thus conferred upon the legislature of each province, subject to the reser\ation of the right of any class of persons with respect to denominatioiud .schools. Everyone acquainted with the his- tory of the province which comprised Canada before the Union, knows the reason for the insertion of some of the provisions of this section. It was found to be the only mode of solving a (juestiou that had caused serious difficulty with the Government and legisla- tui'e of that province. Paragraphs 2 and 3 were constructed to solve and settle these difficulties, and at present only apply to that province no^\ consisting of Ontario and Quebec, where schools were iu operation at the Union answering the descP'^Mon given them iu these paragraphs. Whether the 4ih paragraph applies to any other I'lW than such as is referred to iu the 3rd paragraph it is not necessary to consider, as the constitutionality of the Common School Act depends entirely upon the meaning of the 1st paragraph. The simple question for solution is, c adopted than by reading l)ortions of the Bible ? It certainly is not a 'denominational book.' It is the common standard of faith and practice to all Christians, to it they all ap^x-al. Where arc such ennobling tiioughts as in the Bible ? It is said to be an historical fact, that when the (juestion of reat cpu'.stion is. What is meant by ' do- nominational ' .schools ? S 'condly, Whether the Act of 1871 pivjiidil cially affected any right or ])ri\i. lege with respect to denoniiniitionai schools which the Roman Ciilliolics had by law in the province at flip time of the Union, and the rate being made alike on Roman Catho- lics and Protestants, and the foniUT being deprived of the application of any portion of the funds raised, to denominational .schools which were the privileges they enjoyed at the time of the Act of Union, [Mellish, L.J. : Do you nieiin to ,siy they could not i)ass an Aet creating common schools and mak- ing a rate ? If they have inter- fered with your schools, so much as interferes with denominational schools will be void, but the rest creating common schools and mak- ing a rate will be perfectly good. James, L.J. : Have you any lef;ai vested right in them ? What ri^iit was then existing had this Act not passed ?] The right was gi\en by the Parish Schools Act, IHoS. By that Act they could give funds, and did, to the denominational schools, and we are deprived of that. The Ronum Catholics are compelled to [)ay taxation for the support of schools where it is lu'ohibited to give that religious instruction to their children which they had u right to uiuUt the previous Parish Schools Act. Now, a denoaii- national school is a school iu which the religious branch of the teaching represents the tenets of some religious body. [Sir K. Collier : ' Denominational ' is n term of recent introduction in a great measure (the English School Act, 1870, 33 & 34 Vict. c. 75.). It is not found in Johnson's Dic- tionary, nor the edition by Todd, 1827. But in Webster, of 18GI, it is described * a class, a sect, par- ticularly of Christians,' citing * philosophy dividing it into sects and denominations,' Southey. Then be gives ' deuominationul' us re- B.N.A. ACT, s. 93 (i.)— APPROPRIATE TERMS. 363 lating to denominations or sects of religion. Latham, 18G5, ' denomi- imtion ' as nieiining ' seet, class, or division, especially of Christians.' [James, hJ. : a ' denominational s.'liool must e.v vi termini mean a school est4il)lished by and cxchi- sivt'ly lielongin;; to ii [)articular ile- iiomiiiiilioii. There might be a (k'uoiniiiiitional school for Mahom- uiedaiis or I'arsees. Mellish, L.J. : A sebool where the peculiar tenets of a particular sect are t^iught, and the tenets of no other sect are taiiglit, because if you allow all sods to come at their own hours and toacli their own tenets that would not mnke it a denomina- tional school.] It means a school where the religious teaching is that of a particular denomination. It is used in the same sense in C. S. L. C. c. 15. s. 103. Now, the schools existing in New Brunswick at the time of the Union were governed In the Pari.sh Schools Act, 2 1 Vict. c." 9. [reads the Act]. [Mellish, L.J.: Has each school a district of its own, or might the parish say we will have one Ronuin Catholic school, one episcopal school, and two schools of other tlenominations in our parish ?] 1 should think so. They are to divide their parishes into oonveuient school districts, and may have one school or several in a district. [Mellish, L.J. : They sjiy school-house ; that rather looks as if there Avere not to be two schools in one district. [Mr. Brown muls ,sec. 8 of the Parish School Act.] James, L.J. : I should have tlioaglit if I wanted terms to express schools which are not denouiina- tional I should have chosen such terms as are in clause 8. Sir M. Smith ! Surely this is a jmrish school in which there may be all denomi- nations — those who do not read the Bible at all ; those who read the Bible in its entirety ; and tiiose who rend only the Douay version.] In eei'tain parts of the province |lie Roman Catholics form the ma- jority, in other districts the Pro- testants are in the »scendancy, and in others these are equal. The re- thcir Lonl( of the majority, that change would affect the character of the stiKJoi. Is 'it possible to say these .schools should not be deuomiiiatioiinl, having regard to the way in which the Act was worked ? [James, L.J.; I do not think we can look at tlmt ; we have a plain Act of Pailiiinicnt to construe, and Ave have iiotliimr to do with the mode in wliidi it is worked.] The legislature in pussiiiB this Act of Union nuiy be sup- posed to have had regard to the state of the religious teacliinj; at the time, and the wishes of tlif majority. [James, L.J. : They knew what the law was.] They must he taken to have knowledge of the stiitc of things, that there were a givat number of districts in this proviiiw where Roman Catholic teaclieis were elected, Roman Catholic ente- chisnis and books were used. Thiii state of things is distinctly [iro- hibited by the new Act, 1871, which says in terms the schools shall not be sectarian. [Mellish, L.J. : Must not a ' denominiitioiiiil school' within the meaning of the 1st sub-sec, sec. 93, be a school which is to be always denominatioual? Would a school which may be de- nominational one year and belong to a particular sect, ami then the next year to another sect, according to the majority of the inhabitauts iu its favour, be a denominatioual school which any particuhir class have by law ?] I cannot say thev were denominational in perpetuity. I am compelled to admit they might cease to be .so, but still they would be so as long as the majority of the inhabitauts of a district con- tinued in the same faith, as they do for generations in these parts. Siih- sec. 2, sec. 93, is intended to apph to the separate and the dis.sentieiit schools of U. C. and L. C, establish- ed for the Roman Catholic and Pro- testants by Acts of Parliament, there being in those Acts of Piirlin- ment express provision for the esta- blishment of these schools [see C. t). B.TJA. ACT, 8. 93 (4).— VOTES CHANGE SCHOOL. 365 nntsintoa iinl a Mill, ioii^vit'ws >g<' would JO Sfhdol. i^e schools niimtioiml, y ill wliidi mil's, L,J„. k at tiiat ; 'ai'liaiiM'iit nothing whic'li it is ill pussing lie sup- rd to the eac'liiiif; at lies of tliu rbev knew f\ must lie of the stiitc ■re a "iwit L.C. 18(il,c. 15.; C.S. 1^0.1859, a: Gl. 05], and, therefore, snb- m: - was not intended to apply to the schools of New Brunswick or XovM Scotia. [See R. S. N. S., Si'd series, e. 58. ; 28 Viet. co. 28. 29. ; soviet, e. 30.] Therefore, by in- feivnce, siih-see. 1 was intended to ajiply to the parliamentary .schools in Xovii Scotia. That is, these parish .schools which in Protestant districts were Protestant schools, ami in Catholic districts were Ca- tiiolic schools. [Mellish, L.J. : Sub- sec. I. would clearly ap|)ly to l\o- niaii Catholic schools t-stablished bv Roman Catholic money.] It is not very likely the Legislature had that case before them. I am com- pelled to admit what is a Roman Catholic school this year may be- come a Protestant school the next. Still, what the legislature had iu view was the state of things existing, and the privileges enjoyed by either I'rotPstants or Roman Catholics nt the time of the Act of Union." Mr. Duff, Q.C. : " The ijeoplo of this s ill P. C. s. 15. [Mellish, L..I. : Were there Maheu i'. Town any schools (dearly denominational """ Pouti.anh. schools, Roman Catholic; or Pro- Comments of testa nt, in any one of the four laovinces which were supported by rates on all the Queen's subjoct.s, without reference to their religion ?] No. The language of sub-sec. 1 is capable of being applied to a right such as this — a right to call into existence schools exclusively of any particular denomination umler certain conditions of time and phtce. The right would exist even if those schools themselves did not exist. The language is different from the other sub-sections. It is not a system of separate schools, it is n(jt a sy.stem of denominational schools, but it is a right in respect of denominational schools. That right might exi.st, capable of being called into existence by right ot' the law under load circumstances, and it was called into existence. [James, L.J. : That is to say, that if a school might fall into the hands of persons entirely Roman Catholic or entirely Protestant, there would be Roman Catholic electors and Protestant electors, and a Roman Catholic master and a Protestant master appointed. The .school might be .so worked as to give it a denominational character, Imt to .say that because it has assumed that character it is therefore a denominational school, any injury to which would be unconstitutional, is monstrous.] The 8th sec. of the Act of 1858 authorizes re- ligious books to be used ; they have their Douay Bible, they practise their acts of tlexotion. A school so constituted wouUl be legally con- stituted under the Act. The right to constitute such a .school is a right secured to them by law in respect of a denominational school. [James, L.J. : It is a right to the ratepayers of a district to establish a school, but it is not a right to a denomina- tion. It is a right to the ratepayers, to whatever denomination they be- long, but because the ratepayers may belong to one denomination by an overwhelming majority', that does 366 B.N.A. ACT, 8. 93 (4).— POWER TO REPEAL ACT. Judgment of P.O. m y Maiibh r. Toww not make the school denomi'na- op Portland, tionnl.] Tlie 93r(l see. seenis to secure some sucli rifjlit, iH'cniise the other rights, the riji;hts of the sy.stem of separate schoohs in Upper and Lower Cunathi, were .secured by the otlier sections. [Meilish, L.J. : I do not agree with you there, he- eau.se I can find iiotliing in tlio 1st sub-sec. which i)re vented the legis- lature of Ui)pi'r Canada repealing the peculiar laws by which the Roman Catholic .schools in Upix-r Canada were established. The 2nd sub-sec. assumes that by the Istsub- ,sec. that has been [jreventcd, but it does not itself enact it. [His Lord- ship read the 2nd sub-sec] Tlau'e is nothing to i)revent the legis- lature in Upper Canada repealing all the powers, privileges, and duties conferred on separat*^ schools for the Queen's subjects in Ui)per Canada except the 1st suh-sec ] The 3rd .sub-sec. has some bearinjr. [Meilish, L.J. : If yon are right that the parish schools in New Brunswick were denominational schools, that would be a system of dissentient separate schools in New Brunswick, and the Srd sub-sec. would apply to it.] That is not my contention. [James, L.J. : Do you really go so far as to .say that the Act establishing parish schools has never been rejjealed ? Was there any Act that could not be repealed by the legislature ?] If they simply repealed the Act and went no fur- ther, we .should not be injured. [James, L.J. : If they simply re- jiealed the Act, there would be no privilege interfered with.] We should not then be supporting schools of other denominations. [James, L.J. : It seems idle to say they cannot repeal the Act.] " 17th July 1874. James, L.J. [there being also present Sir J. W. Colvile, Meilish, L.J., Sir Mon- taigne E. Smith, and Sir R. Collier] delivered the following judgment : "Their Lordships have l)een unable to entertain any doubt whatever upon this question. The point is a very short point, and depends up- on the construction of a very few words in the Act constituting the Dominion of Canada. The ques- tion alone to which we desired counsel to coidine them.sclves, as lying at the root of the whole tiiiii>r^ is wlietlier the schools whicli exist- ed in New Brunswick under tlic Public Schools Act, which (^xistwl there before the new Act, were dp. noniinatioual .schools or not. I think the Council would find • im- l)0ssil)l(( to exjjress their view.s on the subject in any better or more forcible language than that wliicii is found in the judgment of Fisher, J., which is probably the more valuable upon these points, l)ecimse, as far as their Lord.shii)s are able to gather, Fi.sher, J., per.sonally ex- presstnl some doubt as to the |K)liev of the new system. Mr. Jus- tico Fisher's language, after giving some other description of the old Schools Act, is — ' It provided for a school library in each district l)y a money grant in aid of the amount raised in the locality for that pur- pose, and placed the .selection of l)ooks under the control of the Board of Education, l)ut expressly excluded works of a licentious, vicious, or innnoral tendency, or hostile to the Christian rehgion, or works on controversial theology. This is the only part of the law in which anything of a denominational chai-acter is referred to in anyway, and it .shows how zealous the legLs- hiture Avas in guarding the law and in preserving the schools from any denominational or sectarian ten- dency. Provision was made for the education of the children of the whole ijeople in sciiools of every grade, and by teachers of both sexes, and by the superior school the wants of higher education were provided for. The whole machinery of the Act is designed to make the schools common to the children of every man, irresiJective of his reli- gious opinions. The Act recognises the agreement of the inhabitants of any locality with a teacher licensed by the Board of Education, when they have provided *a sufficient school house' and secured the B.N.A. ACT, 9. 93 (4).— NO PECULIAR RIGHT. 367 necessary salary, raised by volun- tiiry contnl)iitious or tuition fee. It (.'ontains provisions for voluntary iissessiiiont in the district, parish, or c'oiiiitv wiiere the ratepayers (h'ter- iiiinc to adopt tliat mode of sup- ijoitinjj the sehools, and in sueli case tlio seliools are deehired to he five to tlio eliildren of all tlu; in- liabitants The system is preserih- ed hy the Board of Education ; the localities take an active part in the cstalilisliinent and government of the schools, subject to the general control of the Government. Tlie local afjciicy is exercised, and the locnl otlicers appointed in the same iiiiiuner as for the government and support of the poor, the highways, or aiiv other local or parochial objects. Neither class, creed, nor colour affect or iidhieiice the one more tlian llie other. Thc! only (pialifi- cation for the electors of any officer is that they are to be ratepayers upon real or personal property, or income. No class or creed had under the Act any peculiar right, either in the general government of the whole i)rovince or in any parish or school. Now, when all the niaehinery for working the Acts relating to [jarish .schools had lieen made, is it not a striking proof of tiie determination of the legisla- ture to avoid the very thing which it is contended the Act authorizes, by restrictin fee (if aiiv) rc- (|uired for such registration; ami the definition of ' colony ' cleaily in. eludes Canada." Mandanni.s gnnit- ed to admit the apitlicant. In Xova Scotia and New Briniswick, Killam, J., said in Barrett's caw, 7 Man. L. 1{. 201 : " All cfudd 1m' compelled to contribute to the support of the public schools by direct taxntioii, without reference to religious licljct' or the existence of denominational schools, and ther was no recognis- able right to have the latter main- tained in any way at the pulilio exix>nse, or by any system of taxa- tion." Free schools were introdncrd in Nova Scotia in 1865, which in- ^•olved the levying of an assessnioni upon the inhabitants of the .several .school si'Ctions of the townships for the erection of school-hou.ses and payment of teachers. Att.-Gen.of Nova Scotia v. Axford, 17 N. S. L. R., p. 113. North-West Territories— It was i)i-o\idection of the IJ. N. A. Act, and piu'tly on the " AFanitoba Act " passed by the Dominion I'arliament 1870, 33 Vict. c. 3., which was coiiliniied by the Imperial Act 34 &, 35 Vict. c. 28., it is considered ini])ortant to i?ive here the .sections of tho Maintoha Act which were cited in tlie Manitoba school cases. '■ I ^1^ FHE MANITOBA ACT. STATUTE or CANADA— 33 VICT. (1870) c. 3. An Act to amend and continue tlie Act 32 & 33 Vict. [Dom.] c. 3. ; and to establish and pro- vide for the Government of the Province of Manitoba. [Assented to 12th May 1870.] WHEKEAS it is probable that Her Majesty the Preamble. Qneen may, pursuant to the British North Ame- rica Act, 18G7, be pleased to admit Rupert^s Land and the Nortli-Western territorv into the Union or Dominion « of Canada, b(;fore the next session of the Parliament of Canada. 2. On, from, and after the said dav on which the 9"'^*'" p?°^'". ' ' • sions of B.N.A. Order of the Queen in Council shall take eifect as afore- -^ct, isct, to said, the provisions of the British North America Act, toba. 1867, shall, except those parts thereoL Avhich are in terms made or, by reasonable intendment, may be hold to 1)0 specially applicable to, or only to affect one or more, Init not the whole, of the provinces now com- posing the Dominion, and except so far as the same may bo varied by this Act, be applicable to the pro- vince of Manitoba, in the same way and to the like extent as they apply to the several provinces of Canada, a 2340. A A I i i i 370 B.N.A. ACT, s. 93.— MANITOBA ACT. and as if the province of Manitoba had been one of the provinces originally united by the said Act. ': i\\] I :;il! m Certain piori- 21. The foUowiug provisions of the British Xovtli Act, 18G7, to iVmerica Act, 1807, respoctini>- th(; IIous(; of Coinmons »ppy- ^^ Canada, shall extend and api)ly to the legislative assembly, that is to say : — Provisions relating to the election of a Speaker, originally and on vacancies, — the duties of the Speaker, — the absence of the Speaker, and the mode of voting, as if those provisions Avere lierc re-enacted and made applicable in terms to the legis- lative asseniblv. Legislation 22. In and for the province, the said legislature iiiuv touching 1.1 • !• !• ,.' schools >ubjict exclusively make laws m relation to education, siil)](ct to certain pro- , \. . .1 i; n • visions. «^nd according to tlie toUowing provisions : — Denominational (1.) Notliiiig in ally sucli laAV sliall prejudicially allVct any right or privilege with respect to denonii- national schools, -which any class of persons have by law or practice in the province at the Union : [see ante p. 332.] Appeal to Gov.- (2.) All aoiieal shall lie to the Governor-General in tien. in C. /-IMP . .L 1 • • ,. , Council from any Act or decision ol tlie h^gislatiire of the province, or of any jjio- vincial authority, affecting any right or pri- vilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education : Power reserved (3 ) 1,^ (jaso aiiv sucli proviiicial law, as from time to Parliai c t. V / _ . 1 ' to time seems to the Governor - General in Council requisite for the due execution of the provisions of this section, is not made, or in case any decision of the Governor-General in Council on any appeal under this section is not duly executed by the jiroper pro\incial authority in that behalf, then, and in even such case, and as far oulv as the circum- B.N.A. ACT, s. 93.— MANITOBA SCHOOL CASES. 371 ;oiiiin()ns stances of each case require, the Parliament of Canada may make remedial laws for the due execution of the provisions of this section, and of any decision of the Governor-General in Council under this section. Tn The City ok Winnipeg v. Hahhett, in S. C. Oct. 28, 1H91, lict'oiv Hitcliip, C..I., and Stronj;, Foiirnu'i', TiiscliPi-cau, ami Patter- son, .1.1., 10 S. C. R. .374,i'ov(Tsiiio- Tiivltir, C..T., and Bain, .T., Dnbuc, ,T.,"(lissfntintj, 7 Man. L. E. 27.3, iiinl Tin; City of Winnipeg v. Lo(;.\x, i'roni the Ct. Q. B., Mani- tdlm, before the last three jiulj^es, 11 Die. 1891, 8 Man. L. R. 3, whicli followed the former ease 1111(1 which were heard together in P. ('. -M .fulv, [1892] A. C. J4.5; 01 L. .1. P. ('..58; (57L. T. 429, Lord MMcnajihten delivered the Idllmviiijr judgnuMit [|)resent also honlsAVatson, Morris, Haniieii, Sir \\. ("ouch, Mild Lord Shand] : — •' Those two ajipeals were heard tiis;ctiicr. In tin- one ease the City of Wiiini[)e<; appeals from a iiuluinciit of the Supreme Court of Ciiiiitiin icvcrsinji; a judgment of the Couit of (Queen's Bench for Mani- toljM — in the other from a snbse- (jiii'iit jiKluiiient of the Court of Qiuen's Meiich for Manitoba fol- iowiiif; tile judgment of tlie Supiciue Court. 'I'he judgments iiiider niipeiil (jiiashed eertuin l)ve- l:iws of the n\\- of Winnipeg which iiuiiiori/.cMl assessments for school pui'iioses in [)ursuance of ' The l'ul)lic Schoi)ls Act, 1890' [53 Vict. c. 38.], ji statute of Manitoba to which Hoinan Catholics and uuMiilit'is of the Church of England :iiii. i)\it i'diwanl by Mr. Logan. Mr. Lnjiaii was content to rely on till' aifimiieiits advanced on behiii "1 Mr.Biurett, while Mr. Barrett's advisers were not prepared to make City op Winni- coinmon cau.se with Mr. Logan, ^^-^^ ''• ^arrftt. and naturally would have been better jtleased to stand alone. '* The controversy which has given rise to the present litigation is, no doubt, beset with ;ation to, and did nut eontrihute to the support of iinv oilier schools.' "Xow, if the .state of things which the ArchbLshop describes as I'.xistinj; iiefore the Union had been a system established by law, what would hiive been the ri<:;hts and privileges of the Roman Catholics with lespeet to denominational schools? They would have had by law the right to establish schools at their own expense, to maintain ihcii' schools l)y school fees or vcluut;.;y coiitriimtions, and to coiuluet tiiem in accorilauce with their own religious tenets. Every other religious body which was i'iin;agcd in a similar work at the tiuiv of the Union would have had precisely the same right with re- spect to their denominational schools. Possibly this I'ight, if it liiul heeu defined or recognised by positive enuctment, might have had attached to it as a necessary or iippropriate incident the right of raemptiou from any contribution imder any circumstances to schools of a different denomination. But, I" their Lordships' opinion, it would be going much too far to hold that the esiablishnient of a City ofWinni- national .system of education upon peo i'. Bauhbtt. an unsectarian basis is .so inconsis- tent with the right to set up and maintain denonunational schools that the two things cannot exist together, or that the existence of the one necessarily implies or in- volves immunity from taxation for the purpose of the other. It has been objected that if the rights of Roman Catholics, and of other re- ligious bodies, in respect of their denominational schools, are to be so .strictly measured and limite(,l by the practice which actually pre- vailed at the time of the Union, they will be reduced to the con- dition of a ' natural right ' which ' does not want any legislation to protect it.' Such a right, it was said, cannot be called a privilege in any proper sense of the word. If that be so, the only result is that the protection which the Act pur- ports to extend to rights and privi- leges existing ' by practice ' has no more operation than the protection which it purports to afford to rights and privileges existing ' by hiw.' It can hardly be contended that, in order to give a substantial operation and effect to a saving clause exi)resseil in general terms, it is incumbent upon the Court to discover privileges which are not apparent of themselves, or to as- cribe distinctive and peculiar fea- tures to rights which seem to be of such a common type as not to deserve si)ecial notice or require special protection. " Manitoba having l)een consti- tuted a province of the Dominion in 1870, the provincial legislature lost no time in dealing with the ()uestion of education. In 1871 a hiw was passed which established a system of denominational educa- tion in the common schools as they were then called. A Boanl of Education was formed, which was to be divided into two sections, Protestant and Roman Catholic. Each section was to have under its control and management the dis- il: Mi! I ; i ! ' I 'iiiii i' i 1 If II : I ii f f i 371 B.N.A. ACT, s. 93.— DENOMINATIONAL. CiTv ofWinni- oipliiip of the schools of tlio sectiou. m. i-. liARuETT. ;t,„|pj. ^i,j. Manitoba Aft the pro- vince hiid been diviilcd into 21 oleo- toral divisions, for tiie jjnrpose of electing nieud)ers to serve in the letjislative assembly. By the Act of 1H71 each electoral division was constitnted a school district in the first instance. Twelve electoral divisions, ' comprising mainly ii Protestant population,' were to ))e considered Protestant school dis- tricts ; twelve, ' comprising mainly a Koman Catholic population,' were to be considered Konian Catholic school districts. Without the s[)ecial sanction t)f the section there \vas not to be more tlian one school in any school district. The male inhabitants of each school district, assembled at an aimual meeting, were to decide in what manner they should raise their contributions towards tlie sujtport of the school, in addition to what was derived from public funds. It is perhaps not ouf of place to observe that one of the modes prescribed was 'assess- ment on the [)roperty of the school district,' which must have involved, in some cases at any rate, an assess- ment on Eoman Catholics for the support of a Protestant school, and an assessment on Protestants for the support of a Roman Catholic school. In the event of an assess- ment, there was no provision for exemption, except in the case of the father oi' guardian of a school child — a Protestant in a Roman Catholic school district or a Ilouian Catholic in a Protestant school dis- trict — who might escape by sending the child to the school of the nearest district of the other section, and conti'ibnting to it an amount e'.[ual to Avhat he Avould have [)aid if he had belonged to that district. '* The laws relating to education were modified from time to time. But tile system of denominational education was maintained in full vigour until lSt)0. An Act passed in IHHl, following an Act of 1875, provided among other things that the establishment of a school dis- trict of one denomination should not prevent the establislnnent of a school district of the other denomi- nation in the same i)lace, and llmt a Protestant and a Koman Catlioiic district might include the siiiic teri'itory in whole or in part. Frdin the year 1870 until 180U enact- ments were in force declaring liint in no ca.se should a ProtestiuU rale- payer be obliged to pay for a Ko- nian Catholic school, or a Kouian Catholic ratepayer for a Protestant school. "In 1890 the policy of the pa-t 19 years was reversed ; thedenumi- national system of public educa- tion was entirely swcjjt away. Two Acts in relation to eilueation wcic passed. Tile iirst (53 Vict. c. ;}7,) established a Department of Edu- cation, and a board eonsistiiii; ut' se\en members known as tiic ' Aihisory Board.' Four mciiilx'rs of the board were to l)c ai)[ioiutcd by the Dei)artmenl of E(lucatiuii, two were to be elected by the pub- lic atid high school teachers, and the seventh member was to be apiiointed by the University Coun- cil. One of the powers of tlip Advisory Board was to prcsi'iibe the forms of religious exercises to be tiseil in the .scliools. " The Public Schools Act, iSiW (53 Vict. c. 38.), enacted that all Protestant and Roman Catlioiie school districts should be subject to the provisions of the Act, ami that all public schools should lie free schools. The provisions of the Act with regartl to religious exercises are as follows : — " ' G. Religious exerci.ses in the public schools shall be conducted according to the regulations of the Advisory Board. The time for such religious exerci.ses shall be just before the closing hour in tlie afternoon. In ease the [lareni or guardian of any pupil notifies the teacher that he does not wish such jiupil to attend stich religious exercises, then such pupil shall Ik' disniisseil before such religious exercises take place. B.N.A. ACT, s. 93.— PREJUDICIALLY AFFECTED. 375 " ' 7. Religious exercises shall he held in a piiblie sehool entirely at llic option of the sehool trustees I'm' the (listriet, iiuil upon receiving written authority from the trustees, it shall lie the duty of the teachers to hold such religious exercises. " ' 8. The [)ublic schools shall be entirely non-sectarian, and no re- ligious exercises shall be allowed therein except as above provided.' " The Act then provides for the formation, alteration, and union of school districts, for the election of school trustees, and for levying a rate on the taxable property in each school district for school purposes. In cities the Municipal Cotnicil is required to levy and collect U[)on the taxable property within the nitniiciiiality such sums as the school trustees nniy re(|uire for school purposes. A poi'tion of the Ipsrislative «»" position than Protestants. Certain exemptions were to be nia(h' in their favour if the as.si'ts of their tlistrict exceeded its liabili- ties, or if the liabilities of the Protestant sehool district exceeded its assets. But no corresponding exemptions were to be made in the cas*' of Protestants. " Such being the main provisions of the Public Schools Act, 1890, their Lordships have to determine whether that Act prejudicially affects auy right or privilege with respect to denominational schools which any class of persons had by law or practice in the province at the Union. " Notwithstanding the Public Schools Act, 1890, Ronmn Catho- lics and members of every other religious body in jNIanitoba are free to establish schools throughout the province ; they are free to maintain their schools by school fees or voluntary subscriptions; they are free to conduct their schools according to their own re- ligious tenets without molestation or interference. No child is coin- |)elled to attend a public school. No special advantage other than the advantage of a free education in schools conducted under public management is held out to those who do attend. But then it is said that it is impossible for Roman Catholics, or for members of the Church of England (if their views are correctly represented by the Bishop of Rupert's Laud, who has given evidence in Logan's case), to send their children to public schools where the education is not superintended and directed by the authorities of their church, and that, therefore, Roman Catholics aiul members of the Church of England who are taxed for public schools, and at the same time feel themselves compelled to support their own schools, arc in a less favourable position than those who can take advantage of the free education provided by thi^ Act of 1890. That may be so. But what right or privilege is violated or CrrY or Winni- I'EO V. Baukett. ii;!;? i'i 376 B.N.A. ACT, 8. 93 — BROPHY'S CASE. I'i :d 1 I ■ " ' ( . : CiTv OK WiNNi- pn'jndifmlly nffeeted by the law? PEf) V. IJaTUIKTT. H \^ ,,Qt ^Y^^ ,,^^^, j,,yj ij, i„ j-,j„u It is owing to religious eoiivictions which evfi yhody must resi)et't, and to the teaching of their chiii'ch, that Itonian Catholics and nicinbcrs of the Church of En<;]and find thcui- selves unable to pai'take of advan- tages which the law offers to ail alike. " Their Lordships are sensible of the weight which nuist attach to the unanimous decision of the Supreme Court. They have anxiously considered the able and elaborate judgments by which that decision has been supported. But they are unable to agree with the opinion whic'.i tlii of the .Svpreni pressed as to t: leges of Bomii ^. toba at the time Thev doubt v,l ah ' arned judges . . have ex- 'lU ad i)rivi- ■ao.ic' iu Mani- of the Union. T it is [iei inissi- ble to refer to the <'o -e of i- tion between 1H71 and 1890 rs a means of throwing light on the previous practice or on the con- struction of the saving clause in the Manitoba Act. They cannot a.sseut to the view, which seems to be indicated by one of the members of the Supreme Court, that public schools under the Act of 1890 are in reality Protestant schools. The legislature has declared in .so many words that ' the public schools shall be entirely unsectarian,' and that principle is carried out throughout the Act. " With the policy of the Act of 1890 their Lordships are not con- cerned. But they cannot help observing that, if the views of the respondents were to i)revail, it would be extremely difficult for the provincial legislature, which has been entrusted with the exclusive power of making laws relating to education, to provide for the edu- cational wants of the more sparsely inhabited districts of a country almost as large as Great Britain, and that the powers of the legisla- ture, which on the face of the Act appear .^^o large, would be limitetl to the useful but somewhat hunihle office of making regulations I'e" the sanitary conditions of sehool-hoiiM's, imi)Osing rates for the suppcjrt of denominational .schools, enfoicin" the com|)ulsory attendance of sciio- lars, and matters of that soif. " In the result their Lordships will humbly advise Her Majesty that these appeals ought to lie allowed with co.sts. In the ("ityof Winnipeg v. Barrett it will be pro- per to rever.se the order of tlie Suprenie Court with co.sts, and to restore the jiulgment of the Court of Qiteen's Bench for ^laiiitohn. In the City of Winnipeg v. Logiiii the order will be to reverse the judgment of the Court of (Queen's Bench, and to dismiss Mr. Logiin'^ a]»plication, and discharge the niii' nisi and the rule absolute, with co.sts." Bkoi'Hy f. The Att.-Gex. oi M.vxiTOUA, from the S. C. of Canada, before Strong, C.J., Four- nier, Ta.schereau, Gwynne, and King, JJ., Feb. 20," 1894, 2'J S. C. R. 577, a special case referred bv the Governor-General in Coun- cil to the Sup. Ct. ; in P. C. 29 Jan., [1895] A. C. 202; G3 L. J. P. C. U; G2 L. T. 10. Lord Her.schell, L.C., delivered the fol- lowing judgment of the Honid [present also. Lords AVatsoii, Mac- uaghten, and Shand] : — "In the year 1890 two Aets were passed by the Legislatiiiv of Manitoba relating to education. One of these created a Departnieiit of Education and an ' Ailvisorv Board.' The board was to eousist of seven members, four of whom were to be appointed by the De- partment of Education, two to he elected by the public and hiffli .school teachers of the provinee, and one to be a[)l)ointed by the University Council. The Advi.soiy Board were empowered (amongst other things) to authori7,e text books for the use of pupils and to |>re.seribe the form of religious exercises to be used in schools. B.N.A. ACT, s. 93.— APPEALS TO GOV. 377 " The other Act, which was termed 'The Puhlic Schools Act,' islablislicil a system of imhlic c(hi- ciilioii 'entirely iioii- sectarian,' no ivlii'iuiis exei'cises lieing allowed fXtrpt those conihicted accordiii}; to tlie vej;ulatioiis of the Advisory Boaid. It will be necessary hcrc- iiftiT Id rel'er somewhat more in de- tiiil to tile provisions of this Act. "The Act came into force on til,. 1st of May 1H90. By virtue (if its provisions, bye-law.s were imidi' liy the iminicipal corporation 111' AVMiiiiipeg, imder which a rate was to he levied upon Protestant iiiul Koiuan Catholic ratepayers alike for school purpo.ses. An appliciitioii was thereupon made to tiic Court of Queen's Bench of Maiiitolia to quash these bye-laws oil the giouud that the Public St'iiools Act, 1890, was ultra fires of the prox iiicial legislature, inas- iimch iis it prejudicially affecti'd a i'ij;lit or iiiivilege with respect to lieuoiiiiiiutional schools which the Koiiiaii Catholics had by law or piaetice in the province at the Union. The Court of Queen's Bi'Ut'li refused the application, lioiiig of oiiiiiiou that the Act was intra rircs. The Supreme Court of Canada took a difEerent view, liiit upon appeal this Board reversed tiu'ir decision, and restored the judg- luciit of the Court of Queen's Bench. " Memorials and petitions were afterwards presented to the Gover- nor-General ill Council on behalf of the Hoinan Catholic minority of Manitoba hy way of appeal against till' Education Acts of 1890. These memorials and petitions having Iktu taken into consideration, a ease in relation thereto was, in [lur- simnee of tlie provisions of the Su- preme and Exchequer Courts Act, referred by the Governoi--Gcncral in Councii to the Supreme Court of Canada. The questions referred for hearing and consideration were the following : — '"(I) Is the appeal referred to in tlie suid memorials and petitions, and assorted thereby, such an appeal as is admissible bv sub-sec. .3 of sec. '.)3 of the British Xorth America Act, 18ti7, or by sub-sec. 2 of sec. 122 of the Manitoba Act, 33 Viet. (1870) c. 3., Canada ? '" (2) Are the grounds set forth in the petitions and nu'iuorials such as may be tlu' subject of appeal under the authority of the sub- sections above referred to or either of them ? '"(3) Does the decision of tiie Judicial Connnittee of the Privy Council in the ca.ses of Barrett v. The City of AVinnipeg and Logan V. The City of Winnipeg [previous case, [1H92] A. C. 145; HI L. J. P. C. 58 ; ()7 L. T. 429] dispose of or comdude the application for re Ir.'ss based on the contention that the rights of the Roman Catholic minority which accrued to them after the L'liion under the statutes of the jirovince have been interfered with by the two statutes of 1890 complained of in the said petitions and memorials? " < (4) Does sub-sec. 3 of sec. 93 of the British North America Act, 1867, apply to Manitoba ? " ' (5) Has His Excellency the Governor-General in Council power to make the declarations or reme- dial orders which are asked for in the said memorials and ])etitions, assuming the matenal facts to be jus stated therein, or has His Excel- lency the Governor-General in Council any other jurisdiction in the premises ? " ' (6) Did the Acts of Manitoba relating to education, [lassed prior to the session of 1890, confer on or continue to the minority " a right or privilege in relation to education " within the meaning of sub-sec. 2 of sec. 22 of the Manitoba Act, or establish a system of separate or dissentient schools " within the meaning of siib-.sec. 3 of sec. 93 of the British North America Act, 1867," if said sec. 93 be found applicable to Manitoba ; and if so, did the two Acts of 1890 com- plained of, or either of them, affect any right or pri\ilege of the Hiioniv V. Att.-Ge.n. or .Manitoiia. i' i! 1:1 i i I ifll i i ■BiioriiY V, Att.-Okn. 01' Manitoha. 378 B.N.A ACT, s. 93.— COMPARISON OF HCH. ACTS. minority in such a niaiincr tlmt )iii apiK'jii will lit' tlicnMiiidcr Id the (lOViTnor-Ot'iicral in Coinicil ;■ ' "The Icarnetl jiidj^cs of tlic Snpri'iiu; Court were divided in o[)inioii \i\MU I'ac'li oF tlip (jucstious siiliinittfd. 'riicy wci'c all, how- ever, by a majority ol' thice judf^cs out ol' tive, answered in the nega- tive. "The appeal to the CJoveruoi"- (Jeneral in Council was founded ujion the 2'Jnd section of tiie Mani- toba Act, 1870, and the O.'h'd sec- tion of the British North Anu'rica Act, 1H67. By the fori.U'r of the.se .statutes (which was confirmed and declared to he \a!i(l and effectual hy an lmi)erial statute) ^lauitoha was created a pr,jvinee of the Do- minion. "The2n(l section of the Manitoba Act enacts that after the prescribed (hiy the British North America Act ."^hall— [reads it, ncr [>. 'MM)]. It cannot be (piestioned, therefoie, that sec. 93 of tlie British North America Act (save such jiarts of it as are specially ajtplicable to .some only of the provinces of which the Dominion was in 1870 composed) is made applicable to the [)rovince of Manitoba except in so far as it is varied by the Manitoba Act. The 22n(l section of that statute deals with the same subject-matter as sec. 93 of the British N(jrth America Act. The 2nd sub-section of this latter section may 1)e dis- carded from consideiation, as it is manifestly a|)plicable only to the provinces of Ontario and Quebec. The renuiiniu};; provisions closely correspond with those of see. 22 of the Manitoba Act. The only difference between the introductory l)art and the 1st sub-section of the two sections is that in the Manitoba Act the words 'or practice' are added after the word ' law ' in the l.st sub-section. The 3rd sub-sec- tion of sec. 22 of the Manitoba Act is identical with the 4th sub-section of sec. 93 of the British North America Act. The 2nd and 3rd sub-sections, respectively, are the same, except that in the 2ud Mih- section of the Manitoba Act the words 'of the h'fjislatui'e nT ihc ])roviuce or' are inserted luldiv the words 'any jjrovincial aullid- rity,' and that the 3rd sub-scciion tif the British North America Act comnu'nces with the words ' wlicic in any j)ro\ince a system of .sc|ij|. I'ate or dissentient schools exists liv law at the Union or is tluTeiilti>r established by the lejfislature ol' ijic j)ro\ince.' In view of this coiii- l)arison, it api)ears to their Lonl- ships impossible to come to imv other conclusion than that the '2'2\h\ .section of the ^lanitoba Act wiis intended to be a substitute for tlir 93rd section of the Bi'itisli Xoitli America Act. Obviously, all tlwt was intended to be identical lias been repeated, and in so far as ilic provisions of the Manitijbn Act differ from those of the earlier statute, they nnist be I'egardiMJ as indicating the variations from tliusc provisions intended to be intro- duced in the province of !Manitolia. "In their Lordships' opinion, thert'fore, it is the 22nd seel ion of the Manitoba Act which lias to be construed in the present ea.se, though it is, of course, U'g'itiniate to consider the terms of the cailier Act, and to take achautage of any assistance they may afford in the c(mstruction of enactments with which they so closely correspond, and which have been subslitiitcd for them. " Before entering upon a critical examination of the important sec- tion of the Manitoba Act, it will lie convenient to state tlu' ciicuni- stances under which that Act was j)assed, and also the exact .scope of the deci.sion uf this Board in tlie case of Barrett r. The City of Winnipeg, which seems to have given rise to some misai)prelu'n.sion. In 18G7 the luiiou of the provinces of Canada, Nova Scotia, and New Brimswick took place. Among the obstacles which had to be over- come in order to bring about that union, none perhaps presented n.N.A. ACT, s. 93.— HISTORY OP :S[AX. SCHOOLS. 379 cR'iiti'i' (lilHculty tlmii tlic ditt'cr- iwt'sol' ()])inioii wliicli existed witli rt'iriinl to tluMiiiestioii of eiliieatioii. It liiid liecii t!ic sid)jeet of much (■(iiilrovrrsy in Upprr and Ijowi-r (.'aiiiiilii. Ill Ui)i)i'i Ciuuidii a <'oiu'iid system of undenominational (■(liiciitiou Imd lieeu established, hut witii ]iro\ ision foi' si'i)arate schools to sii|i[)ly the wants of the Catiu)lie iiiliiibiliials of that [H'ovince. The 2nd s(il)-seetion of sec. i).'i of the Briti.di Xoi'th America Act ex- tfiided all the powers, jirivileges, 1111(1 duties which were then by law coiit'ti'i'i'il and imi)oscd in Ui)i»er Canadii i)ii thesepai'ate schools and si'hool trustees of the Uonuin Catholic inhabitants of that pro- vince to the dissentient schools of the Piototant and Koman Catholic iiibiiliitinits of (.Quebec. Tlierecan be iioilouht that the viewsof the Homan t'litholic inhabitants of Quebec and Oiitaiio with regard to education weiv shared by the mend)ers of the >am(' coiiMuunion in the territory which afterwards bi'canu' the pro- \ iiiw of Manitoba. They regarded it as essential that the education of their children should be in accoril- aiice widi the teaching of their I'limeh, and considered that such :iii education could not be obtained i» laililic schools designed for all the meml)crs of the community alike, whatever their creed, but eoiihl only be secured in schools I'omhieted under the influence and guiilaiiee of the authorities of their eluireh. At the time when the province of ^Manitoba bi'came jjai-t lit the Douiinion of Canada, the Roman Catholic and Protestant populations in thc^ province were' aliout e(|ual in nundxn-. Prior to Ihiit time there did not exist in the lenitory then incorporated any pulilie system of education. The ■several religious denominations had 'stahlished such .schools as they ilwaght til. and maintained them hv means of fuiuls voluntarily con- tributed liy the members of their own comn)uuion. None of them received nuy Stole aid. . . - . "The tei'nis upon which Maui- Huophy y tolia was to become a province t)f VrT.-fiKN. or the Dominion were matter of nego- •"•^^''™»-^- tiation between re[)resentatives of tlu' inhaliitants of Manitoba and of the Donnnion Uovernnient. Tla^ tei'uis agreed upon, so far as edu- cation wasconcci'ned, must be taken to be embodied in the 22nd section of the Act of 1S70. Their Lord- shi[)s do not think that anything is to be gained by the inquiry liow far the [)rovisions of this section phiceil the province of Manitoba in a difi"erent position from the other pi'ovinces, or whethei' it was one more or less advantageous. There can be no presumption as to the extent to which a varhition was in- t.' id ',1. This can only be deter- nnned by construing the words of the section according to their natural signilication. "■ Among the very lirst measures pas.sed by the Legislature of Mani- toba was an Act to establish a system of education in the province, 'i'lie provisions of that Act will re([iure exanunation. It is sufficient for the present to .say that the systt'ui established was di.stinctly denominational. 'J'his system, with some niodiiications of the original scheme, the fruit of later legislation, remained in foi'ce until it was put an end to by the Acts which have given rise to the present contro- \ersy. " In Barrett's case the sole ques- tion raised was, whether the Public Schools Act of 1890 prejudicially affected any right t)r privilege which the Roman Catholics, by law or practice, had in the province at the Union. Their Lordships ar- rived at the conclusion that this (piestion nnist be answered in the negative. The only right or privi- lege which the lioman Catholics then possessed, either by law or in jiractice, was the right or privilege of establishing and maintaining, for the use of niendiers of their own church, such schools as they pleased. It appeared to their Lordships that this right or privilege remained i it h ill :;( i t f il !il! I Hi i -It:' III J i.:i! tf i; Mil I Mill '\\:-i\ ■ i t 1 i ;!: 1 1 .| ;;: :ll T?linpiiv ('. Att.-Ukn. oi' Manitoba. 380 B.N.A. ACT, s. 93— FUNCTIONS OF A TRIBUNAL. iintouchi'd, 1111(1, tluTcforc, coiilil iKtt lie said to In- atVcctiMl liy tlic lof,'isliitioii of IHiK). It was not (!oiibt»'(l tliat the olijcct of tlic 1st sub-section of sec. 22 was to afford i>rot)'('ti(>n to dcnoniinutional schools, or that it was proper to ha\i' refjai'd to the intent of the lefjislatiife and the sinronndinj; eireninstances in interjiretinfjj tiie enaelnient. But the (luestion whieh had to he determined was the ti'iie eonstruetion of the laiif^uago usetion presents it.-iclf. Are the 2nd imd .'Ird sub-.sections, as contended by the respondent, and affirmed liv some of the judges of the Su|ircnic Court, (h'si^ned onlv to enforce the ]>rohil)ition contained in the 1>I sidi- .secfion ? The arguments agiiiii.xt this contention appear to their Lordships coiu-hisive. In the first place, that sub-section needs no further provision to enforc(^ it. It imposes a limitation on the legislu- tivt; powers conferred. Anyennct- nient contravening its provisions is beyond the coniiR'tency of the pio- vincial legislature, and, theiel'orc, null and void. It was so decided by this Board in Barrett's east' [previous C4ise]. A doubt was then' suggested whether that appeal wus competent, in consequence of the provisions of the 2nd .sub-section, but their Lordships were satisfied that the provisions of sub-sees, l! anil 3 did not ' oix'rate to withdraw such a question as that involved in the ca.se from the jurisdiction of the ordinary tribunals of the country.' It is hardly necessju-y to point out how inq)robable it is that it shonid have been intended to give a con- current remedy by appeal to the Governor-General in Council. The inconveniences and difficulties likely to arise, if this double remedy were o[)en, are obvious. If, lor example, the Supreme Coiut ol B.N. A. ACT, s. 93.~APP. TO GOVERNOR. 381 Caiiiulii. niul this Coiiimittco on iiM|iral, ilcclaii'd ail ciuictniciit of till' Li';;isliiluri' (if Miiiiitolia rclat iii ititra rirvs, and till' (rdvcriiDi'-Cii'ni'nil in ("omicil, on nil iipiii'iil to liiiii, considiTcd it tiltm riir.s; wliaf would lia|)p('ii ? Iftlii'piiivincial Ic^islatiirrdccliiicd III yield to liis \ i(nv, as would iiliiiost ciM'tiiiidv and most naturally 1)1. till' ciisc, rocoursc could only lie liiiil t(i tile I'ai'iiauii'Ut of tlu? l)o- iiiiiiion. Hut the J'arliauicnt of C'limida is only cuipowt'it'd to li'j;is- liiti' as fni' as tlic circunistann's of llu' casi' ro(|uiiv ' for llic due execution of flic provisions' of the 2:!iiil section. If it were to Icgislat*? ill siicli a case as has been suppo.sed, its le<;isliition woidd necessarily be (leeliircd iilfni rirex by tlie courts which liad decided that the pi'o\i- siiiiis of the section had not been violated by the lefiislature of the province. If, on the other hiiiid, llie (Tdvernor-deneral declared a [iioviiicial law to l)e iiifnt rircs, it would be an ineffectual declaration. It could only be made I'fl'ectual by llie action of the courts, which would have for themselves to deter- iiiinetliei[iiestion which he decided, and if they arrived at a different louehisiiiii, and pronounced the iiiactnient iiltni rirrx, it would be none the less null and \oid because the Oovernor-tteneral in Council liiul declared it infra vires. These cnnsidei'atioiis are of themselves most coij;eiit to show that the L'lul siili-section ought not to be con- troiiorlv coiitirnis this view. That iTinedy is either a provincial law or 1 law passed l)y the Parliament of (.'aiiada. What would be the utility of passing a law for the pni'pose merely of annulling an enactment which the or'V.uaiy tribunals would without legislation declare to be null, and to which they would re fiis(! to iiive effect ? Such legisla- lation would indeed be futile. " So far the matter has been dealt with apart from an examina- tion of the terms u\' the 2nd siib- .sectiou itself. The considerations adverted to would siicm to justify any possible construction of that sul)-section which would a\oid the conseipieiK.'cs pointed out. But when its language is exam.ned, so far from presenting any d.'. ulties, it greatlv strengthens the co.:(dusion suggested by the other parts of the section. The first sub-section is confined to a right or jirivilege of a 'class of persons' with respect to denoniinational education ' at the rnion,' the 2nd sub-section >\[>- jilies to laws aft'ecting a right or ))ri\ilege ' of the Protestant or iloiiian Catholic minority ' in rela- tion to education. If the object of the 2n(l sub-section had been that contended for by the respondent, the natural and obvious mode of exjiressing such intention would have been to authori/e an ai)peal from any Act of the provincial h^gislatnre affecting ' any such right or privilege as afor(\sHid.' The limiting words ' at the Union ' are, Iiowe\-er, omitted ; for the expres- sion ' any class of persons ' there is substituted ' the Protestant or Roman Catholic minority of the Queen's subjects ' ; and, instead of the words ' with respect to de- nominational schools,' the wider term ' in relati(Ui to education ' is used. " The 1st sub-section invalidates a law affecting pn^judicially the right or ])rivilege of ' any cla.ss ' of persons, the 2nd snb-s(>ction gives an appeal only where the right or privilege affected is that of the ' Protestant or Roman Catholic minority.' Any class of the majority is clearly within the pin-- view of the 1st sub-.sectiou, but it liiiopTiv i: .Att.-Gkn. (jk Manitoiia. ti I' f; ?!i t ■:> Unopiiv I'. Att.-Okn. of Manitoiia. i \m li'i 1 1 i, ; i ■j : ' ■ l i \i 3fi2 B.N.A. ACT, s. 03.— PERILS APPREHENDED. .Kcpins cqiiiilly I'lciir tliiit no cliiss of the Profcstiiiit or Calliolic iiinjofity would lin\(! II lonts sttnidi loii|)|ii'iil under tlit> 2n(l suit-section, liecanse its rifjiits or |iri\ile^es liiul Iteen affected. MoieoNcr, to lirin^ n cn.se witliin that snh-section, it wonld l>e essential to show tliat a rif^lit oi' |tri\ile;nrd niei'ely as ;\ nienns of enforeinj^ the provision which precedes it. The (juestion then arises, does the sub- section extend to i'itest;mi> in the province were about e(|!iiil in number. It was impossible at thiit time for either ])arly to ohtiiin legislative sanction to a sclieinc of education obnoxious to the oilier, The estalilishnu'nt of a system cil public education in which lujih parties would concur was pniliiiMv then in immediate prospect. Tlie Legislature of Manitobn lii.st met on the 15th of March 1S71. Ontlir .'{rd of Ma\ following the Kiliini- tion Act of 1871 received the roviil asM'iit. IJut the future was luiccr- tain. Either Roman (^itholics or Protestants might become the prc- liondeiiiting power in the lejjisla- ture, and it might under such conditions be impossible for the minority to prevent the creation iil the public cost of schotils, wliicli, though acceptable to the iiiajoiitv, could only l)e taken advantage nf by the minority on tiie terms of sacriiicing their I'herished convic- tions. Tla- change to a Romiiii Catholic system of ]iulilic scliools would have been regarded with as much distaste by the ProtestiMit<(if the pro\ ince as the change to an unseetarian system was by tlic Catholics. " Whether this explanation he llic correct one or not, their Lordsliiiis do not think that the diflicnlly suggested is a sufficient warrant fur departing from the plain iiuaninj; of the words of the enaetnu'iit, or for refusing to adopt the construc- tion which apart from this objeetiou wouUl .seem to be the right one. B.N. A. ACT, s. 03,— LIMITED I'OWKRS. 383 "Tlii'ii' L()i'(lslii|is Iwiiifj; of opi- nion tliat the t>iiii('tiii('iil wiiii'li I'ovcrns tilt' prcsKiit cast' is I lie •J2ml si'clioii <)t' till- Muiiitoha Act, il is uiiiii'<'<'s^ til'' ai'j;miu'iils di'iivcd Irmii till' provisions of sec. !i;{ of till' Urilisji N'oilii Aini'i'i<'ii Act. Hm il ''t as thcv tliiow lif,'itl (III til. .', tlii'V tlo not in tlicii' Liinl^liips opinion weaken, Inil iiillic r sti'cnjitlicn, tlu' views derived IVoiu il sillily of the latcreiiactinent. it is admitted tliat the lird ami llli sul)-seclions of sec. !).'{ (the latti'f of which is, as lias lieeii oli- M'l'vcil, identical willi snl)-sec. li ul' sec. :ili of tlie Manitoba Ael) wi'i'f not intended to lia\c etfect iiii'ivlv when a proviiu^ial le<;isla liiiv had exceeded the limit im- |iiinmI DM its powers l)y sidi-.scc. 1. iiir sah-sec. .'i ^i\cs an appeal lo till' (TOMTiior-Ueneial, in it only wiiia'c a system of separate or dis- Miiliciit schools existed in a pro- vince ;■ the time of the ITiiion, liiit ;■' hero ill any province Mlrli tern was 'thereafter iMiil... oy the legislature of till' |iriivinee.' It is manifest that this relates to a state of thinjj;s nnwA hy iiost-lTnioii lejjjislation. II WHS said it refers only to acts or ilit'isioas of a ' provincial antho- iliy,' and not to acts of ii |iro- vincial Icjiisliitnre. It is nniiecessiiry III ili'teriiiine this point, but their liDidsliips nmst exjiress their dis- Miit fnim the ai'f^niiit'iif that the iiKi'ition of the words ' of the li'iislatare of the province' in the Manitolia Act show that in the liiitish \orth America Act it could ii»l Iwvt! licen intended to coiiii)re- !ii'iiil tile le<:!ishitnres under the ^vonls • liny provincial authority.' Wlictlicr they he so coniprehended "!■ not has no bearing on the point iiiiiiK'diately under diseiission. " It was argued that the omission fwiiitbe 2nd .sub-sec. of sec. 22 of lliL' Manitoba Act of any reference 'u II system of separate or dissen- tient schools ' thereafter established i)v the legislature of the province ' .Manitiiiia. wus unfavoiiriible to the contention Miimin r. of the appellants. This argument Att.-Okm. of met with some favour in the coni't below. If the words with which tin; .'{rd sub section of sec. *X\ colll- incnces had been found in sui>- sec. 2 of sec. 22 of the ManitoiNt A<'t, the iiinission of the following words would no doubt have been important. Ihit the reason for the (liU'erence between the sub-sectioilS is manifest. At the time the Do- minion Act was passed a svsumu of denominational schools adapted to the demands of the ininoi'iv ex- isted in some provinces, in otiiers it might thereafter Im" cstablishc i by legislation, whilst in ^lanitobii in 1870 no such .system was in operatiiai, and it could only come into existence by being 'thereafter established.' The words which preface the light of appeal in tl • ,\ct creating the Dominion woiih therefore have been ([iiite inappro- priate in tlie Act by which Mani- toba became a jirovince of the Dominion. Unt the terms of the critical sub-section of that Act an;, as has been shown, (|uite general, and not made sulijcet to any con- dition or limitation. " Uefore leaving this part of the case, it may be well to notice the argument urged by the respondent that the construction which their Lordships ha\e [)ut ii))on the 2nd and .'{rd sub-sections of sec. 22 of the Manitoba Act is inconsistent with the power confi'rrcd upon the legislature of the province to ' ex- clusively make laws in relation to education.' The argnnient is falla- cious. The power confcrretl is not absolute but limited, ft is (;xer- ciseable only 'subject and accord- ing to the following provisions.' The sub-sections whii^li follow, therefore, whatever be their true construction, (h-line the conditions under which alone the provincial legislature inav legislate in relation to education, and indicate the limi- tation.s imposed on, and the excep- tions from, their power of exclusive legislation. Their right to legis- i til !■ M I I' !1 i N Uropiiy f. Att.-Gen. or .A[AN'1T011A. hm ! si > 384 B.N A. ACT, s. 93 —POWER TO REPEAL. late is not iiuleod, properly spenk- iiifi;, exrlusivp, for in tlie case s[)ot'ifi('(i in sub-Sfc. .3 the Pnrlia- nicnt of Canada is authorized to legislate on the .same subject. There is therefore no siieh ineon- sistencv as was sun;p;e.sted. " The learned Chief Justice of the Supreme Court was much pressed by the consich ration that there is an iidierent lifjht in a lefjislature to repeal its own legis- lative acts, and that 'every pre- sumption nnist be made in favour of the constitutional right of a legislative body to repeal the laws which it has itself enacted.' He returns to this point more than once in the course of his judgment, and lays down as a maxim of con- stitutional construction that an in- heivnt right to do so cannot Im" tleemed to In- withheld from a legislative body having its origin in a written constitution, unless tl"^ constitution in express words takes away the right, and he states it as his opinion that in 'on- stnnng the Manitoba Act the Conit ought to procei'd on this principle, and to hold the legis- lature of that provini'e to have aV)solute powers over its own legis- lation, untrammelled by an_\ appeal t J federal authority, unless it could find some restriction of its rights in that respect in express terms in the Constitutional Act. "Their Lord.ships are unable to conciu' in the view that there is any pivsnmption which ought to influence the mind one way or the other. It must 1h' iemenil)«'re absolute. But this is not so as re- gards education, which is sepiuatc- ly dealt with and has its own cddi. both in the British Xorth Anu'ijca Act and in the Manitol)a Act. It may be .said to be anomalous tlmt such a restriction as that in (|ui's- tion slumid be imposed on tlic free action of a legislature, but is it more anomalous than to grant to a minority who are aggrieved hv legislation an a])peal from the legis- lature to the executive autiioritv.'' And yet this right is expressly anil Iteyond all controversy conl'cii'cd. If, upon the natural eonstinetlon of the language used, it slmnid appear that an appeal was pei'. niitted under eireumstanccs in- volving a fetter upon the power of a i)rovincial legislature to re|)eal its own enactments, their Lonl- shij)s .s'c no justification for a leaning against that construction. nor do they think it makes any difference whether the feltcr is imposed by express words or liv lU'cessfU'y iinplicatiini. " In truth, however, to deter- mine that an ap)>eiil lies to the (loveruor-fieneral in Council in such a ca.se as the present, does mil involve the proposition that the [)rovincial legislature w;is unable to repeal laws which it had |)assed. The validity of the repealing Aet is not now in question, nor tliat it was effectual. If the deeision Ite favourable to the appellants the consequence, as will be jiointed out presently, will by no incan- !»' -essarily be the rep-al '■' iln A(ts of 1890 or the le .•inictntrnl of the prior legislation. " Bearing in mind the eirouni- stances which existed in 1S70, it does not api)ear to their Lordships an extravagant notion that in cre- ating a legislature for the province with limited powers it should have lieen thought exjx'dient, in eas<' either Catholics or Protestants 1h • came i»reponderant, and rights B.N.A. ACT, 8. 93.— SUMMARY OF SCHOOL ACTS. 385 ol' t'tliuration so iicccssiirv to pi./toct the wliit'li lintl oonip into existence undiT different circnnistances were iiiterffivd witii, to jjive the Do- minion I'iirliiiinent power to lejji ■ ];lt(' I1|I()M iiiiitte I'lir as wa^ I'rott'stant or Catiiolic minority ns the case ini^^ht be. " Takin<; it then to bo established tliiit tlic 2n(i sub-section of sec. 22 of tlic r^IiinitolMi Act extends to Hsrlits and privileges of the Koniiin Ciitluilic iiiiiiorityiiequired by legis- lation i;i the province after the I'nion. the next question is whe- ilii r any such right or privilege has iH'on affected by the Acts of IS!tO ? In order to answer this (|ni'stioii, it will be necessary to oxaininc soniewlmt more closely limn has iiitherto 1h.hmi done the svstPin established by the ei rlier li'ljislatiou as well as the chaufje clfirted I)y those Acts. " Tiie Manitoba School Act of 1>*71 pnnided for a Board of Ediii'atidii of not less than 10 nor iiiorc than it niendiers, of whom out' half were to be Protestants and the other half Catholics. The tun sections of the Board nn'ght luwt at any time separately. Each Nction was to choose a chairman, ami to have under its control and iiiaiiii;.'cin('nt the discipline of the ^iliiKiJs of tiie section. One of the I'mlistaiit members was to bi' ap- Ihiintcil su|)erintendent of the Pro- liMaiit schools, and one of the Cailiolic iiK'iubers superintendent nl tlif t'atliolic schools, and these uvo Were to be the joint sec- ivtaiics of the Boaril, which was to v'kvt the books to be used ill till' seiiools, except those having ivtVivncc to religion or morals, wliidi were to be prescribed by the >"tions respect ively. The legis- laiui' grant for common school "Imation was to Im? appropriated, "ii'iiiniety to support the Protes- tiiiit. the other moiety the Catholic ■^lioiils. Certain districts in which ill'' iHiinilation was mainly Catholic »|iv to l)e considered Catholic *liiiol districts, and certain other ti 3340, Manitob.\. districts where the population was Brophy i>. nniinly Protestant were to bo eon- ^'"'•-C^en. of sidered Protestant school districts. Every year a meeting of th(' nude iidiabitants of each district, sum- moned l)y the su]»erintenilent of the S(!ction to which the district be- longed, was to a|)point trustees, and to decide whether their contri- butions to the stipport of the school were to be rai.sed by subscription, by a collection of a rate |)ei' scholar, or by assessment on the pro|)erty of the district. They might also decide to erect a school house, and that the cost of it should be raised by assessment. In case the father or guardian of a school chiltl was a Protestant in a Catholic district, or vice versa, he might send the child to the school of the nearest district of the other section, and in case he contributed to the school the child attended a sum eipml to what he would have been bound to ])ay if he had l)elonged to that district, he was exempt from payment to the school of the dis- trict ill which he lived. " Acts amending the education hiw in some res])ects were passed in subsetpient years, but it is aot neces.sjiry to refer to thei-., as in 1881 the Act of 1871 and these amending Acts were repealed. The Manitoba School Act, 1881, fol- lowed the sanu! general lines as that of 1871. The number of the iJoard of Education was fi.ved at not niore than 21, of whom )2 were to W Protestants and 9 Catholics. If a h'ss nund)er were api)ointed the same ndative pro- portion was 1h' observed. The Board, as liefore, was to res(dve itself into iwo sections, Protestant and Catholic, each of which was to luui" the control of the schools of its section, and a// the books to l)e used in the schools under its con- trol were now to 1«' selected by each section. There w«'re to be, as iH'fore, a Protestant and a Ca- tholic .superintendent. It was pro- vide;is- latnre for connnon school purposes was to he divided between the Pro- testant and Roman Catholic sec- tions of the Board in proportion to the number of children between the ages of tive and fifteen residing in the various Protestant and Roman Catholic school districts in the province where schools were in 0[)eration. With regai-il to local assessments for school purposes, it was i)ro\id(>d that the ratepayers of a school district should pay their respective assessments to the schools of their respective denominations, and in no cast^ was a Protestant ratei)ayer to lie obliged to ])ay for a Catholic school, or a Catholic ratepayer for a Protestant school. " The scheme emlKwlied in this Act was modified in some of its details by later Acts of the legis- lature, but they tlid not affect in substance the main features, to which attention has lu'en called. AVhile traces of the increase of the Protestant relatively to the Catholic po|)idation may be seen in the course which legislation took, the position of the Catholic and Protestant portions of the comnnniity in relatiooks for the use of pupils and to prescril)e the forms of religions exercises to im' used in schools. All I'rotestant and C^Jtholie sihoo! districts Avere to be subject to the provisions of the Public Scliool> Act. The public schools weiv nil to be free, and to be entirely iion- sectarian. No religious exercises were to be allowed unless con- ducted according to the regulntions of the Advisory Board, a-id vvjt' the authority of the school trustees for the district. It was made tlie duty of the trustees to take pes- session of all public school pro. ])erty which had l)een acquircil or given for public school purposes in the district. The nuniicipal conn- cil means of maintaining sciiools wliieli tliey regard as no more siiit- ■Mi- for the e liiiil siib-seetion of sec. 22 of the ^Manitoba Act is the governing emu'tment. and that the appeal to the flovernur-General in Council was admissii)le by virtue of that enactment, on the grounds BB 2 I!-' ' ♦!■». !■ :i ! i 388 B.N.A. ACT, s. 93.— JFTMSDICTION' OF. GOV.-GEir Bropiiy !'. Att.-Gev. op Manitoba. I n I vv i: , set forth in the memorials and petitions, inasmuch us the Acts of 1890 affected rights or privileges of the Kouiun Catholic; minority in relation to ces mentioned in .sec. 95 are ai;nenltnre and inimigrntion where the powers are concurrent, and iieif, of eouise, [)rovision had to lie made i'or one or other giving way in the event f)f their dashing, and so it is espe<'ially provided that the local legislation in these Local Optioh two cases shall be valid only so far Act Cask. as it does not conflict with that of the Parliament of Canada." And he goes on to say this is the only sec- tion where such provision is made. [See Note, sub-sec. 9, sec. 92.] Aliens have no legal right to 1m^ allowed to hind in the c(donies. l^Sce Notes, p. 03, and sub-sec. 14, sec. 92.] VII. — Judicature. 96. The Governor-General shall appoint the judges ^Vj"]^*^*"* of the superior, district, and county courts in each province, except those of the courts of probate in Nova Scotia and A^ew Brunswick} ' Sre American Constitution, The Minister of Justice, John iirt. 3. s. 1. Macdonald, concurred in a report Rend with this section the sec- made by his deputy, 14 June 1879, tious 97, 98. 99, and 100. that it was beyond the powers of S 2340. *" 390 B.N.A. ACT, B. 96.— DUTY OP JUDGBS. m\ p i 'Wil 1 ' : i>' i • • ■ i'l ' ' !* ■ ;ii. V [niii. : ji ' ! r ■Mr ' r i':; ! r i: ■,• ^ | it 1 ! I'l' M 111 . . ' P' 'ii jilt ii; N, i'-iiii! Ill III : the local legislature to allow to the jiulfjes of the county court fees for Ijerfonning their duties as such judfjes while they at the same time received a fixed salary from the Dominion Governmeut for the jjer- formancc of those :e further, or to enlarge con- sti'uctively those conditions and re- strictions." In Marbuby v. Madison, Fob 180.3,5S.C.R.(U.S.)(lCrancl,), p. 177, it was said, \)er Curiam : " It is em|)hatically the province and duty of the judicial department to sjiy what the law is [see ^•.n^.^' given, sec. 41]. Those who apply the rule to particular ca.ses, must of ncccssitv e-ipound and inter|)ret that rule. If two laws conflict with each othor the courts must decide on the operation of each. .So if a law bo in opposition to the Constitution ; if l)oth the law and the Constitution apply to a particular case, so tbnt the court must either decide tiiiit ca.se conformably to the law, disiv- garding the Constittitioii, or c ,ii- formably to the C^onstitution, dis- regarding the law ; the court must determine which of those confliutinf; rules governs the ca.se. Thi.sistlic very essence of judicial duty. If, then, the courts are to regard tlie Constitution, and the Constitution is suiH'rior to any ordinary Act of the legislature, the Constitution and not such ordinary Act nnist govern the case to which they both ai)|)ly." And again, " The judicial power of the United States is extenclcd to all ca.ses arisnig under the Constitution, ('oidd it be the intention oi' tlioso who gave this [rawer, to .sjiy tbat in using it the Con.stitution should not be looked into ? That a case aris- ing under the Constitution .should l)e decided without examining the instrument under which it arises?" In Reg. v, Bennett, 20 Oct, 1882, 1 O. R. p. 462, Cameron, J„ held that the legislature of the province of Ontario had power to (R. S. O. c. 71) provide for the qualification and appointment of justices of the peace. That learnid judge said : " Justices of the \wm are [mrt of the system of the ad ministration of justice in the pro vince, and therefore under sub-SR' 14, sec. 92, of the B. N. A. Ad, the right to legislate as to their appointment is expressly confernnl upon the legislature of the pro- B.N. A. ACT, s. 96.— CONST. OP LOWER COURTS. 391 vince." " This view is supported by tlie provision contnined in sec. 96, giving the appointment of judges of the superior, district, and coiinty courts to the Governor-General, and no provision being niatle for tlie appointmr nt of any sul)ordinate officer or authority in connection with the arlministration, indicating the intention of the Imperial Par- iinmeut, under the assignment of the |K)wer to make laws i-elating to the luhninistration of justice to the local legislature, was to give .such legislature full power to legislate as to the appointment of all otficers connected with the administration, except tlu^ judges, in respect to whose a])pointmunt the appointing power was expressly indicated." In Wilson v. McGciue, Feb. 3, 1883, 2 0. R. 118, the question arose, Could the Ontario Legisla- tnre authorize a county court judge to act in any county other than that he was appointed for. It was held it could. The Local Courts Act, R S. 0. 1877, c. 42. s. 16, allowed any |)art of Ontario to be divided into districts or groups of counties by proclamation of the Lieutenant- Governor. Sec. 17. After the crcntion of a district, the several connty courts, courts of general session, division courts, &c., and all other courts which a county court may hold in each county, shall be held by the judges in the district in rotation. Sec. 18. The judges shall meet and arrange which of tlie said courts in a district shall be held by each judge throughout the year. The judges so arranged, and the county court judge of Lambton inider such arrangement held a Middlesex Division Court, and made an order which gave rise to the case, it l)eing alleged it was ultra vires in that the judge ivcted out of Lamb- ton. Held by Hagarty, C J., and Uimerou, .J. (Armour, J., dissent- '"g), that, as the load legislature had power to abolish such courts and to establish others for the dis- pos(d of the like or other classes of business, it had the right to apjioint Wilsor v. officers to preside over them, and McGuibb. the order was not ultra vires. Hagarty, C.J. , .s»«d : "The Legis- lature of Ontario has complete power over the division courts as to their existence, constitution, re- arrangement, &c. In the case of the superior and county courts, the general Government interpose in the power of appointing the judges. The county judges appointt^l by the Crown have presided o^■er these division courts from their estab- lishment. Tlie provincial legisla- ture, since its e.stnblishnient, has made many changes in those coiuts, enlarging their jurisdiction and making provisions for enforcing their process over projjerty and [htsous outside their ordinary boundaries, but have never interfered with the principle of having them presided over by a county court judge, and even before confederation (C. S. U. C. c. 19. ss. 16, 17) the judge of another county court could act in the case of illness or unavoidable absence." *' 1 do not feel that in the case liefore us any difficulty is created by the fact of the judge of Lambton being an officer appointed by the Dominion expressly for that county. It was urged be could not i)erform judicial duties beyond its limits. It is sufficient here to say that he has in fact performed them inider the authority of the provincial legislature, and that the latter, having complete power over the division courts, have designated him, amongst other named function- aries, to preside in the court." In Ganong v. Bayley, May 1877, 17 S. C. N. B. (1 Pugs, and B.) 325, it was heltl by Weldon, Fisher, and Wetmore, JJ. (Allen, C.J , and Duff, J., dissenting), that sec. 1 of the New Bnniswick Act, 39 Viet. c. 8., establishing parish courts, which authorized the Lieu- tenant-Governor to appoint a com- missioner to try causes in the court established, was not ultra vires. Weldon, J., said : " At the ! ; I Oanono V, IUylbv. m^ ii!!' ill. ,ii W ' ■: I II .'ii i; Oj-.c, and there were Division Courts in On- tario. No referency the pass- ing of Acts by the local legislatiu'cs, as.sentcd to by the Governor-Gene- ral, and any Act creating an office, and veMing the appointment in the Qovornor and Executive Council, would l)e valid, if not ilisaliowed by the Governor- General." 'J'his principle has been recognised by the Colonial Secretary in 1872, and carried out in various Acts. "And tiie power of ai)poinfuient wiiicii was in tlu; Crown, to be exercised by the representative of the (^lU'cn, has been transferred to the Lieu- tenant-Governor. See 31 Viet, c, .'}(). for appointment of nicnilii'is of tiie h'gisiative council ; ',i'2 Viet. c. 92. for ai)pointment of jiistiecs of the [teace; 32 Vict. c. !).'{. re- lating to marriage licenses; ,'5(1 Viet, c. 3. respecting appointment (if Notaries Public ; .'JG Vict. e. 21. re- specting theappointmentof (Queen's Coinisel ; 32 Vict. c. (5. relating to the [>r(!.sentation of Rectors of tlie Ciuu'ch of England in tlie pr(i\ inee; 31 Vict. c. 1. appointment of iwiiec magistrate in and for the city of Fredericton, and giving liim jnris- diction in civil suits to the extent of S 10. Some of these Acts are .'pe- cially ap|)roved of by the Governor- General, others left to their opera- tion. As the Act establishing parisii courts has not been disallowed liy the Governor-General as direeted under the 90th section of the Union Act, I am of opinion it was within the power of the legislature to pass the Act." Fisher, J., said : Sub-section 14 " of .section 92 of the B. N .A. Act confers upon the locid legislatiire.s the power of providing for the con- stitution, maintenance, and organi- zation of pro\incial courts, so tiiat the authority to legislate upon tlie subject is clear. Having so legis- lated, had the local legislature |)ower to give the appointment of tiic persons who are to try the causes or administer ju.stice in the courts to the Lieutenant-Governor, or must such appointments vest in the CJovernor-General ? This depends npon the meaning of sections 96, 97, 98, 99, and 100 of the B. N. A. Act, and con.striiing all these sec- tions together — and in that way they explain themselves. It is obvious that it was the intention of the Act lli > B.N.A. ACT, 9. 07.— HIGHER CLASS JUDGES. 393 !»• to vest in the Goveriior-Genoral oiilv the appointniont of the .jiitlg«'s of till! county courts, mid those of a more extensive orCiiiiadiiin juris- iideiiee. At tile time of tiie Union, tiiere were in existence courtsaiid judj^esof courts, answer- iiit' tlie description given in tiiese sretions, having both civil and criminiil jurisdiction, ft bi'ing re- (IniredtlmttheysliouidbeapiHiinted from till' bar, sliowing that tiii'v must liiive received a professional I'llacation, evidences the mind of the lef^islature as referring only to jiidijes of tiic liigiier class. Then tlie eliarging the revenues of Caiiiuia with their .salaries and pen- sions of itself shows that the sec- tions all refer to a higher class. When tlie B. N. A. Act came into o|»eration, there were in Novii Scotia and Xew Brunswick courts for the trial of small causes in the (liifereiit localities, similar to those antiiorized by the Act of 39 Vict. e, 0., presided over by justices of the iieace, the (dass of persons who Ganoho i-. are now appointed ; and the only ^A^f-^if' difference is, that instead of every justice of tli(! jieaci- having power to try, it is now restricteil to such of the justices as the Lieiitenant- (Jovenior shall siieeiallv apiioint therefor, and they have jnrisdietiou to a larger amount. In Nova .Scotia the Act that gave one justice power to try causes not exceeding S2t), authorized any two justices to try to the amount of Jeal to the l^rnotico. SupriMue Court, and it appearing that oiK^ really represented the Oo- verniiieiit of Nova Scotia, a special agreenient was niadi^ whereby that (JoverniiKMit wert^ to come in and be a party to the cause, and 1m' bound liy it. The agreement finally said : " Tiie order to 1m' made pur- suant to this agreement shall Ih' consiih-red a final disposition of nil contentions, whether now in litiga- tion or not," arising under the artiicles which are the subject of dispute. The Privy Council re- fiisi'd to give siM'ciiil leave to ap- peal, such reference to the S. C. liiing in this nature of an arbitra- tion, and that the S. C. was not acting in its ordinary jurisdiction as a court of appeal. Att.-Oen. of Nova Scotia v. Oregorv, Cassels' S. C. J). 727; in P. C. April 3, 188(5, 11 App. Cas. 225); 55 L. .J. P. C. 10 ; 55 L. T. 270. The Exchecpier Court is presided over by a single judge, and can sit any.vhere in Canada. It is also a Colonial Court of Admiralty [51 & 55 Vict. (I)om.) c. 2!).], hav- ing such jurisdiction throughout Canada and its waters, whether tidal or non-tidal, or luiturally navigabh' or artificially made .so, and all per.sons shall haviiall rights and remedies in all matters con- nected with navigation, shiiiping, tnule, or commerce, as may be had or (enforced in any Colonial Court of Admiralty under the Imi>crial Colonial Court of Admimlty Act, 185)0, 53 Si 5t Vict. c. 27. [see post, Appendi.v A]. LiM-al Courts of Ad- miralty have been est4iblished in ncconlance with the Dominion Act in QuelHH', Nova Scotia, New Brunswick, British Columbia, Prince Edward Island, and To- ronto district, the limits of which are elastic and may Ik; altered by the Governor in Council. By Crim. Pro. Act [see R. S. of C. c. 174.] provision is iiuule for the reservation of Crown cases. It is important to st^ite that 396 B.N. A. ACT, s. 101.— PROVINOTAL OOTTRTS. i i> ;M ! i- I? Direct Hight of AH the provinco.s onn nppoiil fo ^Pl*"'' tlio Pi'ivv ('ouiu'il witluiiit f;oiii}i throii};!! the S. C. ot'C. — F()rni)|i»iil fi'oin Oiitiii'io, .ire hcfoir ; Trom Qiu'hcc, below; from Nova Scolin, liidox to Loii. (3az., " papi-r printed l>y P. V. 20 ISIaich \H(V,\ " ; IVoiii New Urimswick, Oiiici' in ("ouncil, lion. Gaz., 7 Dt'c IHoL', p. 3o7') ; Manitolta, Order in ('imnell, OIT. Can. (Jaz., A|'ril .W, 181I2, p. 20 II ; North-West Territories, Order in Couneil, ihuL, Mareli 5, lHi)L», ]). 1(51(5; and Prinee Edward Is- land, In- Poyal Instruetions, l.'{ Dec. IH.'JH; see fn re Monckton, 22 June 1H;}7. 1 Moo. 1'. V. 455; fn re raml.ridfje, 11 Feb. 1811, 3 Moo. P. V. 175, and Kelly r. Snlivan. From Newi'oinulland, 1)V Chiirtor of Justice; nvc .'51 (leo.".'?. (1701) e. 20., ante, p. 6. Tile Supreme Court of Ontaiio consists of Sni)reme Court of Judi- cature, two division.s, called irif;;li Court of Justice for Ontario, and Court of Appeal for Ontario. The first division is composed of Q. U., C. P., and Chancery. Q. 11. and C. P. have each a C. J. and twoJTid<;cs. 'J'he Chancery Court \» presided ovei' by a Chancellor ami three judjjes. Th<> jud<;es of On- tario, as well as tho.se of (juehec, Nova Scotia, and New Brunswick, are selected from the liar of their own province. Special questions are also re- ferred to the Court of A|)peal, On- tario, under 53 Vict. (Ont.) c. 13.; see Att.-Gen. of Ontario v. Att.- Gen. of Dominion, in re a,ssi};n- ment.s and i)rcferences, Mav 1803, 20 O. A. K. 480; in P. C. Feb. 21, [180-1] 5 A. C. 180; 03 L. J. P. C. 50 ; 70 li. T. 538. And In re the Local Oi)tion Act, 1801, 18 O. A. K. 573, ante, p. 205. The rif^ht of appeal straight to P. C. from Ontario is ; — In a case where the matter in controversy exceeds the sum or value of S4,000, as well as in a ease where the matter in question relates to the taking of any anniuil or other rent, customary, or other fluty or fec>, or any like deninnd of a general and public nature ntT(H't- ing future rights, of wlmt viiliic and auutunt soever the stune miiv be, an appeal shall lie to Ilcr .Ma- jesty in her Privy Council; aiiij except as aforesaity, itc. Till' Legislati\r Council and As- sembly of Lower Canada passed iIh'.'H (tee. :]., I7\y.i, c. ()., an Act fur the division of the province of Lower Canada, for amending the jiiilicature thereof, and for repeal- in;; certain laws therein men- tiimcd. Sec. 30 linntcd aj)peals to His M.'ijcstx III Council from the judg- iil ol provincial courts of i|M'al to ciTtain cases. [Sec "W,C.ofC P.] •'And 1m' ■ urther emieted by tlic authoriii aforesaid, that the " :iacnt of "the said Court of Ap- '~ of this province shall be 1 in all eases where the matter lii dispute shall not e.veeed t" ■ sum w value of £500 .sterhng ; nit in cases exceeding that sum or value, ''"■ W'll as ill all east's where the matter in (pa^stion shall relate to any fee of olliee, duty, rent, revenue, or any sinn or sums pavable to His Majesty, titles to lands or tene- ments, annual rents, oi' suidi like matttfrs or things where the rights in future may Ih' bound, an appeal shall lie to His Majesty in His Privy Council, though the imme- diate sum or value appealed for be less than .t'jOO stei'ling, provided security be iirst duly given by the ap])ellai.(. that be will elfeetually prosecute his appeal and answer the condtunnation, and also pa\ such costs and damages as shall be awarded I)y His Majesty in His Privy Council, in ease the judg- ment of the said Court of Appeals of this [irovinee be allirmed," i\Lc. The section then proviih's that in <'ase of reversal the respondent shall not be called upon to retiu'ii more than the net i)roceeds of the execution, Ac. Sec. 43. "Provuled always, ami it is declared and enacted by tho authority aforesaid, that nothing herein contained shal' be construed in any manner to derogate from the rights of the Crown to erect, constitute, and appoint courts of civil or criminal jurisdiction within this province, and to appoint, from time to time, the judges and ollicers thereof, a.s His Maj«'sty, his heirs and successors, shall think neces- sary or i)roper for tho eircumstjinces of this province, or to derogate from any other right or preroga- tive of tho Crown whatsoever." [See below, Cuvillier v. Aylwin, Nov. 21, 1832, 2 Knapp, 72.'] The Code of Civil Procedure, article 1178, provided: — An ap|)eal lies to Her Majesty in her Privy Council from final judgments ren- dered in ap|)eal or error by the Court of Queen's Hench : (1) In idl cases where the nuitter in dispute relates to any fee of office, duty, rents, revenue, or any ■sum of money payable to Her Majesty ; (2) In cases concerning titks to lands or tenements, annual rent.s, Appiid friiiii (iilel.ec. ■ t • ! I I ! « ■ ^'1 II': mm >i j ! _ j ■1 1 m 1 . 1 f % \<' I'll iS, IS i 1 ii If ! Coile 111 iiiidcr of J'ri). '0. 398 B.N. A. ACT, H. 101.— AMENDMENTS TO CODE. nnd (itlicr iiinttt'rs by wliicli tho ii<];hts in fiituro of jmrtu's may bn Hffci'tPtl ; C.i) In all ciiscs wlierein tho matter in dispute exceeds the sum or value of live hnudrod pounds sterlin}: [C. S. L. C. 1H(51, e. 77 8. 52]. Art. 6(X)9 of R. S. Q., IHHS. "Tlie foliowinj; artiele is added after art. 117H:— 117HA. Causes adjudicated upon in review, wliieh are susceptible of ap|«'al to Her Majesty in Iler Privy Council, but the ap[)eal whereof to the Court of Queen's Bench is taken away by arts. 1115a and 11 12a, may never- theless be ajjpealed to Her Majesty by observing the .same formalities and provisi<;ns, and subject to the sjune conditions, as in tlie ca.se of jud<;nient> rendered by the Court of Queen's Bench (appeal sitle), and with the same effect, as if every provi.xion of law, in relation to apjK'als to Her Majesty from jutlgments of the Court «>f Queen's Bench, was enacted in this article with respect to the Superior Court sitting in review, its judges, its ortitrei'.s, or their ofilce. Arts, nil, 1115, 111.5a, as amended by 51 Vict, (t^.) c. IH., run as follows : — Error may be brought against any jue entitled to iipix-a! to the Ct.of Queen's Bench In:,, tn, jutlgment of the Superior Court sitting in review, if si.ch judguieut confirms that rendered in tiie fir>t instance. Art. 1112 was substantially to the sinne effect as the latter part of art. 11 15a, "Circuit Cotirt" k'inj; substituted for " Superior Court." 1179. Nev«'rtheless, the execu- tion of a judgment of the Court of Queen's Bench cannot Ix- prevcutcd or stayed, unless the party agf^ricv- e|M>al, satisfy the coii- dennuition, and pay such costs and damages as may Im? awarded In Her Majesty, in the ^vent of tlii' judgment being confirmed. The secin'ity nniy be received "oefoic one of the judges of the Court of Queen's Bench. The sureties justify their sol- vency upon the real estate wliiiii is descriU'd in the bail bond. One surety suffices if the real estate which he descrilM's is e(|ual to the amount of the security 'iver and above all charges and hvpotliecs. The judge who ii'ceives .sncli secui- may order, "ither on de- man s /•■ otherwise, the iiroilui'lion of the registrar's certifieate, the valuations rolls, ;»nd any other doci'inents for the pnrpo.s' of the .security, and is b;mnil to put snili questions as he deems advisihlc to the sureties, nnd such (pieslion^ and answers then-to may be taken down in writing. TIh' party appellant nuiy. Iiov- (^ver, exempt him.vlf from liuiii.'*li- ing .such security by depositing nii amount ecpinl to that required for tlie security, either in money, in l)onds of the Dominion o.- of tlii" province, or in municipal dclnMi- B.N.A. ACT, 9. 101.— ONT. JURISPRUDENCE. 399 tuifs; tunl s"**'* moneys, hoiiilrt, or ilclK'Hturi's arc (Icnosilod oitlicr with till- clerk of the C'oiirt ot (JiU'i'u's Bench, or with the sheriff, as till' jiidjjc may direct. R. S. Q., ISSS, !irt. tJOlO. Ontario Jurisprudence. — After till' passing of 31 Geo. 3. e. 31., dividing Ul)[)er and Lower ('iiimila, the Le<^!slati;re of I'pper (.'iinailii, or, as it is now, Ontario, ,«i>M'.l the 32 Geo. 3. c. 1., 15 Ort. 1702, which repealed U Geo. 3. c. 83., in so far as that Act ((instituted the laws of Canada a lull' tii' decision in matters of con- iiowrsy relating to pro])erty and civil lights; and '>y sec. 3 enac- uA tiiat in all matters of contro- wisv relative to property and civil riijlits roort should he had to the liiH-s of Pjigland as the rule for the ilci'isioii of the same. By see. 4, no- iliiiig ill the Act was to 1h' con- -tnicdto vary any of the ordinances lKhM(l liy the Governor and Li'irisli'.tive Council of Quehec [ivo- vioiis to the division of the pro- viiiifs otiierwise than as tluy are ;iH'(>ssarily varied hy the Act. Sec. 5. All matters relating to testimony andlcgal proof in the investigation (i| fai't and the forms thereof in tile yvi'i'al courts of law and eipiity within the province shall he regu- lated liytlie rules of evidence estali- li«hcd ill Kngland. Sec. (5 provith-d iliiit 11(1 alteration was to he made in tlit'siiltsistiiig provisions respecting i'iiluitical rights or dues within llii' pidvinces, or with the forms iif iiroccciling in civil actions, or to till' iiirisdiciion of the C(>nrt already oliihlished, or lo introihice any of ilic laws of England res|H'ctiiig the maiiiji'iiancc of the |K)oror n's|)ect- iiii: liaiiknipts. By 32 Geo. 3. '■2., all and every issue and issues "t fiK't should Im" tried and doter- '"'"'d l)v tile unanimous vertliet ' 1' jiiiors. 3.'J Geo. 3. c. 5. ili'idt witii s(deinni/,ation of inar- lii'lli'. 33 Geo. 3. e. H. estah- H4'd the Court of ProlMite. 34 ^''■'1 3. c. 2., 1704, »>stal)lished a >'i|K'ii(ir court of t'vil Hud erimimil jurisdiction, called the Com-t of Append from King's Bench for Upper Cana of the Ex- ecutive Council of the province. Sec. 35 provided that an appeal should lie tr sums above U).v. and unpcal shidl lie thereto from all judgments of the Court of (Queen's Bench and Conuiion Pleas, and from all judgments, orders, and decrees of the Court of Chancery. 12 Vict. c. O.J. .s. 10. IJy sec. "57, C. S. U. C. c. 13., appeals to Her Majesty in Her I'rivy Council. The judgment of the Court of Error and ApjH'al shall be tinal where the nuitter in controversy does not exceed the sum or value of 84,000. Sec. 5H. In a case exceeding that amount, as well as in a ca.se where the matter in (piestion relates to the tiiking of any annual or other rent, customary or other duty, or fee, or any like demand of a general and public nature affecting future rights, of what value or anu>unt soe\«'r the same may 1n', an ap;ieal shall lie to Her Majotv in Her I'rivy Council. 12 Vici. c. 03. s. 10. Then by .sec. 59 the security for costs to be proviiletl is .S2,()0(). Sec. 61 provided that sec. 10 shall apply to appeals, that is, ilr • execution should not ' ;> slayiMJ ,., such cases witliout cfunpliaiuc with the provisions set out in tlnii section. K. S. O. 1877, <•. 37. s. 1, pro. vided that the Supreme Court jukI Exchecpier Court of Canada, ( r the Suiirenu- Court of Canada iilouc, according to the provisions of the Act of the Parlianu-nt of Cnniula known as the Supreme ami K.\- che- vince. (2.) Of controversies bciwccn any other proviiu-eof tiie Doniiiiioii which may have pa.s.sed an Ad similar to this present Act and this province. (3.) Of suits, actions, or pro- ceedings in which the pnrtio thereto by their pleadings Imvi' raised the cpu'stion of the valiilitv of an Act of the Parliament of Canada, or of an Act of the lujiiv hiture of this province, when, in tlir opinion of a jiulge of the court i' which the .sime are pciiilins:. such (piestion is material; and in such ca.se the .said judge siiiill, al the requiNst of the parties, and nmv without such recpu-st, if he tliink> fit, order the ca.se to Ik- remoyetl to the Supreme Coiu't in order to tlic decision of such question. [StT R. S. O. 1887, c. 42.] The Ontario Illicit Licpior SVIl- ing Act, 1881, 44 Vict, c.27.s. 17. gave a right of apjjcal fntma jml;'- ment or decision of any of lln' su|«'rior court.s, or any juil<;i' thereof, upon any application to (puish a conviction made nmlir <•. 181. of R. S. O. 1877, orumlir this Act, or to di.scliarge a prisoner who is held in custo«ly under iiny such conviction. But no gmli apjH-ul lay from a single jut|n;(', or if thi' court was umuiimous, mi- ■m B.N.A. ACT, s. 101— CONSTITUTIONAL POINTS. 401 less the Att.-Gen. for Ontario shall ccrtifv tlio point in (iisputc is of suffii'it'Mt iniportanco to justify the case l)fin<; appenlod. Bv U. S. O., 1HH7, <•. 41. s. 52, s.-s.'2, "The Hif^li Court shall have jiiralittioii to entertain an action, at the instant'o of either the Attor- lU'v-Geiieral for the Dominion or the Attorney-General of this pro- ving, tor a (leelai-ation as to the viilidity of any statute or any pro- vision in any statute of this legis- lature, though no further relief shouhl 1h! prayed or sought; and till' action shall Ik; dwnied suflici- iiitly constituted if the two officers al'orcsiid an' parties thereto. A jiiilgiiieiit in the action shall be aiipealiiblc liiic other judgments of till' Court." Tims the question as to the iwwcr conrcrred on the Ontario Liiuteiiuiit-dovernor of jmrdoning, nistil ill the Att.-Gen. for the Dominion r. Att.-Gen. of Ontario, 23 S. C. U. 45^ ; 19 O. II. 31 ; 20 0. R 222, was heard. And under the following Act the ipiestion of till' LiM'al Option Law was placed Ulorc tile judges for tluur ojunion, H 0. A. U. 572, miff p. 205. Refinmr to Court Authorizetl. The Ontario Act, IHSK) (assen- itil to 7 April), 53 Vict, c, 13., intituled '• An Act for expediting till' ikrisions of constitutional and iitlier provincial (piestions," Hy sr. 1 the Lieutenant-Governor in l-'ouiicil may refer to the Higli Oiuil, ora l)i visional Court there- (il, ui' to the Court of Apjieal, for liniiiiig or considering any matter whiili 111' thinks lit to refer, and ihf Court shall thereupon hear or •'iiisidei' the same. Cmrt to Cvrtif'jj Opinion. ^■v. 2. The Court is to certify 'II the Licuti'uant-Governor in '"iimil it>i opinion on the question "tiin'd, with the reasons tiierefor, «lii(li aiv to 1m' given in like 'iiHiiiior lis in the cas«' of a judg- iwMit in an ordinary action ; and ""} judge who differs from the "I'inion of the majority may in S 2140. UonH, notifica- tion of Att.-Gen. like manner certify his opinion. In Constitu with liis reasons therefor, to the 'l"""' 1"^ Lieutenant-Governor in (.'ouncil. Notice to Att.-Gen. of Canada. Sec. 3. J;i case the matter re- lates to the constitutional valitlity of any Act which has heretofore Ihh'u or shall hereafter l)e passed by the legislature of this province, or of some provision in any such Act, the Attorney-General of '^'■inada shall Ik* notified of the i 'aring in order to be heard if e sees fit. Notice to Persons Interested. Sw. 4. The Court shall have |)ower to direct that any jierson interested, or where there is a class of persons interested, any one or more |)ersons as repre- sentatives of such class, shall be notified of the he.nring, and such persons shall 1h^ entitled to be heard. Appointment of Counsel t.. Argue the Case. Sec. 5. Where any interest affected is not reiirescnted by counsel, the Court may, in its discretion, recjucst .•*onie counsel to argue the case in such interest, and the rcnsoiiable expense there- of shall be paitl out of the Suitors' Fw Fund or otherwise. Sec. t). The opinion of the Court .shall be deemed n judgment of the Court, and an appeal shall lie therefrom as in the case of a judgment in an action. Enactments appi, .'hie to Appeals. Sec. 7. In case of the matter iH'ing apjicaled from the High Court, or a Divisional Court there- of, to the Court of Apjieal, sees. 2, 3, I, 5, <>, shall apply in like manner as if the originnl reference had iMfii to the Court of Appeal. An apiM'id to Her Majesty in Her Privy Council from a judgment of any court on a reference under this Act shall not lie subject to the restrictions <'ontained in the K. S. of this province res|HH'ting ap^ieals to Her Majesty in Council. C I ii 402 B.N.A. ACT, s. 101— OTHER PROVINCIAL COURTS. Nova Scotia. I'l I i ^ll 1 ; ! ■ i S. C.S, New [These restrictions were : R. S. O. Brunswick and iHS7,o. 41. In a i-n.se where tlieniut- ter HI controver.sy i-xceeds the .sinn or viihie of 84,000, ns well ns in the ease where the nmttor in (inestion relates to the takin<; of any annual or other rent, enstoniary, or other duty or fee, or any like demand of a general and i)ul)lie nature affecting future rights, of what value or amount soever the same may be, an appeal shall lie to Her Majesty in Her Privy Council ; and exeei)t as aforesaid no ajJiM-nl shall lie to Her Majestv in Her Privv Council. [See C.'S. U. C. 1859, c. 13. ss. 57, 58 ; 34 Geo. 3. U. C. c. 2.] By sec. 2 .security was to Ik! given in 82,000 to the sjitisfaction of the court ai)pealed from. By sec. 3, on security being perfected, ext'cution to be stayed. Sec. 4, jiractice ai)plieable to stay- ing execution on appeals to Court of Appeal to be ai)i)lical)le to appeals to Her Majesty in Her Privy Council. Sec. o dealt with approval of security, an ogreeable to the rules and orders of our Courts of King's Bench, Common Pleas, and Exchoqmr in England. To have, hold, exi rcisi., and enjoy the said oifice and |(]iicc of Chief Justice of our Supicnu' Court of Judicature of and in our said provmce of New Brunswick, with all," &v., rights and pri\ ilcjfcs. [Sec Att.-Gen. i: I'.aillie, Fell. M. 1H12, 3 S. C. N. B. (1 K.it). p. 453]. Nova Scotia was the siinic n^ New Bnniswick. R. S. X. .S„ 1873, 4th series, c. 89. s. 1 cimctci th(! Supreme Coiut shall iiiivc ihc sauu^ powers as are excirix'd liv the Courts of Queen Bench. Coni- mon Pleas, Chani'ery, and V.s- chequer in England. Sec 5. Tlir E(|uity judge .shall ha\e jurisdic- tion in all cases formerly cogniznlilc by the Court of Chancery, and sii.ill exercise the like powers, ami iijiiilv the same principles of cfjuitv, lor- merly administei'cd in tlml (iiinl. In Uniacki! v. Dickson. Feb, 1)1, 1S48, 2 N. S. R. 287, Sir ,1. Harvey, Ch., Hallibiuton, ('.J.,iuiil Hill, J., it was held the still ntcs of 33 H. 8. e. .39. and 13 Eli/, c. I., which gave the Crown a lien u|iiiii real estate of certain public nHlciiils as a .security for their Uiiids to faithfidly discharge their diilv, were not in force in Nova Scotin. Prince Edward Island.— Acts were passed in 13 Geo. 3. c. ,'!. ; 2(5 Geo. 3. c. 11.; .35 (ho. ;i. c. 7.; 59 Geo. 3. c. 3.: 3 Will. I. c. 12. ; and were re^iealed liv \'l Vict., 1849, c. 9., Laws P. K. 1.. Vol. 1, p. 573. The Act of 111 Geo. 3. c. 3., 1773, established ih.' times and places of the Sii(iiviiii' Court ; SIC IG Geo. 3., 1770, c 1 . Laws P. E. I.,Vol. 1, p. 17. That lust Act narrated that wlieivtis in Novendter last the capitiil ct tin island was invaded by twn provin- cial privateers, who carried off lln' commander-in-chief, the suivcvoi- general, together with manv ivconl- of the S. C, the public seal of lln' island, and His MajestyV com- mission, by riasoii of wiiich lli' new C. J. could not procinc hi« commi.ssion, nor the 8. C. sit until ?•!'. ■ii B.N. A ACT, 8. 101 —PROVINCIAL COURTS. 403 25 .Time, when it oiipht to hnvo sat on tilt' tliird Tuesday in Febniai-y, tlirit'foif it enacted that all judg- iiiciits (iciivered hy the caid court sjioiild 1)0 deemed valid. See p. 396. British Columbia. — Biiti>tiatc, who hiid, subject to the N.W. Territories Act.'^, 1875, 1877, juiisdiction over all matters of tivil law and eipiity, all matters of will", and inlcstacy." By the N. W. Territories Act, 3n Vi.t. (I).), 1875, c. 19. s. 59, » tonrt of civil and criminal jiirisdiition shall Ik- held in the '^'id territories. By the N . W. Ter- ritories Consolidation Act, 1880, <3 Vict. (D) c. 26. 8. 70, each Bti- jiendiary magistrate could exercise Courts of all magisterial finictious apiwrtain- J^fs'i'toba. ing to a justice of the peace or any two justices; and shall also have power to hear and determine any charg against any person for any crin;iiial offence alleged to have been committed in the N. W. T., if in territory eastwards of the Rocky Mountains, in territory not officially ascertained u]) to British Columbia. Sub-sees. 1 to 4 deals with larceny, embezzlement, and assaults, which are to be tned with- out a jury. Sub-,sec. 5 was: " In all other criminal cases the stijH'n- diary magistrate and a justice of the peace, with the intervention of a jury of six, may try any charge against any person or iK>rson8 for any crime." By sub-sec. 7 the sti|M'iuliary magistmte was to take, or cau.se to be taken, in writing, fidl notes of the evidence ; which by sub-sec. 8, in a case of capital conviction, are to be forwarded to the Minister of Justice. By .sub- sec. 10, any [M-rson arraigned for trea.son or felony might challenge six jurors. By sec. 77, a jMirson conviet«'d of any offence punishable by death may ai)peal to the Q. B. Manitoba, which court shall have jurisdiction to coidirm the con- viction or order a new trial. [See Riel r. The Queen, 10 Ai>p. Cjw, C75.] By sec. 85, every sti[K>ndiary magistrate shall have [wwer to hear any claim, dispute, or dennmd, as follows: — Sub-sec. 1. Where the claim or demand is for a tort, wrong, or grievance, in which the amount claimed iloes iu)t exceed i^odO, or if for a dtdit, iir on a con- tract, in which the amount (daimed does not exceed .*<1,(MK), in a sum- mary way, and without the inter- vention of a jury. Sub-sec. 2 : In all other claims, disputes, or demands than those abuve men- tioncil, or for the recovery of the possciision of real estate, if neither party th-maud a jury, in a sinnmary way ; but if either party demand a jury, then with a jury not exceed- ing six. The section went on to say there was to be no hearing of CC 2 '(■■' •\]\ t' 'i 404 B.N. A. ACT, s. 101.— SUPREME COURT & APPS. r'< p[ Canada's Sii- premc Court. ; h ! ! I !r ! ■ I • . I ■ I an action for any gambling debt or for any «l»*bt for intoxicating liquor. By «cc. HH, apical from the decision of any stipcndiiiry or presiding judge in a cinini under sub-sec. 2, sec. 85, may be to Q. B. Manitoba. By R. O. N. W. T. 1H88, c. 58. p. 406, sec. 4.35 : No appeal shall lie from the judgment or order of the court preside;! over by a single judge, or a judg» of the court to the court in Imuic without the s|wcial leave of the judge or court whose judgment or order is in (piestion, unless the title to real estate, or some inteivst therein, or the validity of a patent, is affected, or unless the matter in controver.sy on the apfieal, in mat- ters of contract i.vcveils the sum of $500, and in matters of torts e.v- ceeds the sum of 8200, exclusive of co.sts; or unless the matter in question relates lo the taking of an annual or other rent, customary or other duty or fee, or a like demand of a general or public nature affecting future rights. [The words in italics rej)caled by Ordin- ance No. 21 of 181)0, sec. 7.] Supreme Court of Canada.— .38 Vict. c. 11. established tiie Su- prenu! Court as a court of common law and equity. Sec. 17. Subject to the limita- tion and provisions hereinafter made, an appeal shall lie to the Supreme Court from all final judg- ments of the highc.'it court of linal resort, whether such court Im' a court of appeal or of original juri.sdictiou, now or hereafter es- tablished in any province of Can- ada, in cases in which the court of original jurisdiction is a sujH'iior court : Provided that no ap|M>al shall 1)6 allowed from any judg- ment rendered in the provin«'e of Quebec, in any ca.^e wherein the sum or value of the matter iu dis- pute does not amount to 82,000; and tlu! right to appeal in civil case.', given by this Act shall be un- derstood to Ih' given in such cases only as are mentioned in this .sec- tion, except Exchequer cases, ca.ses of mandamus, habeas corpus, or municii>al byc-law.s, as hereiiinftei' l)rovide«l. [Amended bv R. S. (.",, 188G., c. I'At). s. 24 ; 51 Vict. (I).), c. 37. ; 54 & 55 Vict. (Dom.) c. 2.5., and other Acts.] By R. S. (C), 188G, c. 135. sec. 20. Except as otherwi.sc pro- vided in this Act, -jr in the Ad pro- vided for the Hp|H'al, no appeal shall he to the Supremo Court Init from t'lie highest court of last re- sort having juri.sdietion in the pro- vince in which tht^ action, suit, or cause, n.atter (tr other judicial pro- ceeding, was originally constituted, whether the judgment or dec!;!^;, in such action, suit, cans-, , luattcf or other judicial preceeding was or was not a proper subject ot appeal to such highest court of last resort. (2.) Provided that an ap|H'al shall lie directly to the .Siijircini' Court from the judgment of tJic court of original jurisdiction, by consent of j)arties. (3.) Provided al.so,that an appeal shall lie to the Supn-ine Court liy leave of .such court, or a judge thereof, from any judgment, decree, or decretal order, or order made and pronounced by a superior court of e(piity, or made or pro- nounced by any judge in eipiity, or by any superier court in any action, cause, or matter or other judicial proceeding in theinitiire of a suit or prci'eeding in ecpiity, ami from the linal judgment of any suiM'rior court of any province other than the province of (.^ihIht, in any action, suit, cause, matter, or other judicial proceeding origi- nally commenced in su<'li sii|Hrior court, without any intermediate appeal iHiing had to any intenne- diate court of appeal in tlie pro- vince. [The above is taken from 38 Vict. c. 11.S.S. 11,27; 12 Vid. c. 30. ss. 5, 0, 7.] Sec. 29. Noajjpeal shall lie nndor this iVct from any judgment ren- <' in any action, suit, cause, matter, or other judicial proceeding, wlieiv- in the matter in controversy does not amount to the sum or value of f!f "t% B.N.A. ACT. 8. 101.— APPEALS IN HABEAS CORPUS, &o. 405 S2,()00, unless such matter, if less tlinii tliat nmount — (rt) Involves the question of the valiility of an Aet of the Purlin- im'iit of Ciiniula, or of the legisla- tiiri' <>t any of tlu' [)rovinees of Caimdii, or of an onlinant-e or Act of any of the eoinieils or lej^isla- tivc liudies of anv of the territories ordistriets of Canada; or (A) Relates to any fee of office, (liitv, rent, revenue, or any sum of iiiorify payahle to Her Majesty, or to any title to lanils or tenements, annual rents, or such like matters or tliiiifis where the rights in future mi>;lit he Imund. [.'JH Viet. e. 11. s. 17; 42 Viet. e. 30. s. S.] (2.) Provided that sueh apjH'als sliall lie only from the Court of Qupcn's Bench. [This suh-see. 2, was amended hy 51 & 55 Vict. c, 25. s. 3 ; see fte/oir.] See. 71. The jiidfiment of the Supreme Coiut shall, in all ca.ses, Ih' final and conclusive, and no ii|)|H'al shall he hrought from any iii(l<;niont or order of the Supreme (.'omt to any court of appeal estah- iislicd by the Parliament of Great Biitflin and IrelanUate jurisdiction as to educational matters vested in the Governor in Council by the B. N. A. Act, 1967, or by any other 11 i| i ; lu ri liiijMii li i.i^ui l| !■ .::: ^^ i 1 1 \] ( :| r ' ■i: 1' i ' t ! I ; 40A B.N.A. ACT, 8. 101.— FINAL JUDGMENTS. CtJviM.iKR V. Act or Inw, or toucliing thf consti- Aylwin. tntionnlitv of any lo^^islation of tlin Pnrlinment of Caiiiidn, or toncliiuf^ any oth;'r .ijatter witli roforonco to which he sees fit to cx«'rcisc this power, may 1m> referi-ed, hy th(' Go- vernor in Council, to the Supreme Court for hearing; or consideration; and the court shall thereupon hear and consider the siinie. " (2.) The Court shall certify to the Governor in Council, for his information, its opinion on ques- tions so reserved, with the reasons therefor, which shall he given in like manner as in the case of a judgment upon an appeal to the said court ; and any judge who differs from the opinion of the majority shall in like manner certify his opinion and his reasons. " (.S.) In case any such question relates to the constitutional validity of any Act which has hitherto heen or shall hereafter he piusswl hy the lepfislature of any province, or of any provision in any such Act, or in case for any rea.son the Govern- ment of any province has any special interest in any such ques- tion, the Attorney-General of such province, or, in the case of the North-West Territories the Lieu- tenant-Governor thereof, shall \w notified of the hearing, in order that he may lie heard if he thinks fit. " (4.) The Court .shall have power to direct that any person interested, or, where there is a class of i)ersons interested, any one or more jiersons as representatives of such class, shall be notified of the hearing uj)on any reference under this section, and such persons shall l)e entitled to Iw heanl thereon. " (5.) The Court may, iu its dis- cretion, request any cotinsel to argue the case as to any interest which is affected, and as to which conn.sel does not ap|iear [see On- tJirio Act, p. 401], and the reasonable ox])enses thereby occasioned may be paid by the Minister of Finance anl\ WHS piwisctl to order I lie iictilioiier should lie allowed to Ciller Mild pioseeiitii nil iippeul lioiii the sitid jiulj;iiieiit of the ,{()tii .liilv 1H121 (witliout prejudice tollie (plestioll wlH'ther the li])peid liecoiniM'teiit or not), nju)!! security lit'iiif; niveii liei'e in the sum ol' tlOO to prosecute the said appeal 1(1 fllirt williin the s|mce of one Mill' and a day tVom the date of this Order in (.'oiiiieil. Tin- apiM'l- hiiit not prosecutinji his appeal, iv!-ip()ii(leiit in Dec. 181'<» i>rescnted a pt'tilioii that the appeid lu' dis- iiiisscil. On <)Oth .Jan. and 2nd Fell. 1S27 tlu! matter came on lid'div the Hoard of the Privy ('(iiiiiiil. when theii' Lorilships, coiisidcriiij; the question affected iiiipoilaiit interests of a larp- lias- of His Majesty's subjects, wi'iv pleased to order that cases >liuiii(l lie ])iinti'd, conllned to the (|iicsti(p|i, whether the nforcsiud iipiM'sil was or was not competent. Tile ivspondeut urgued the ap- peal was ineoiiipetent, and cited :!1 ({.■(., ;5. c. \n. ss. 2, 30, 31, 31, mill the Act of the legislature for lilt' tlivi>iiiii of the province of Ltiwt'f t'anathi, connnonly culled lilt' .lutlicature Act, 34 Geo. 3. c. tis. 30, which Act was transmitted Id Eiijjliiiitl and received the Royal Asst'iit. Tilt' appellant contended that lilt' jiitl|;iiieiil had lieen recovcretl iil'li'i' the tlissolution of the appel- lant's co-partnership, and that the tlfht hail iK'cn siitislied. The lij^ht of His Majesty an- It'iior to the passing of the statute |>I' 31 Geo. 3. c. 31. and the pro- vincial Act of the 34 Geo. 3. c. 6. Ill I'littTtaiii and determine in His Privy (.'iiinicil any case on apiieal tnnii the juilginent of the Court of Apiwil in Lower Canada isunt|ues- tiouahle. The right is not abro- gtttwl by the last-meutioueil sUituto, and it is not within the competence Ouvilmkr i'. of the proxineial legislatiu'e to Avlwin. abridfje, much less abrogate, any prorogati\(' right of the Crown. ^'et, even if it were competent for the provincial legislature to pass an Act to that ett'iict, the right of His Majesty tti receive and hear the a|iiM'al in the case s]H'ciiied is not taken away by the provincial Act of 34 Geo. 3. c. 0., as there is an ex[)rc,ss sjiving of all rights and prerogatives of the Crowu, sec. 43 [i'ce ubove^. His reasons were : Becaust^ His Majesty's prerogative rights, es- pecially such as concern the adminisliiition oi' justice, cannot, it is conceiveil, be abridged, much less abrogated, except by the most direct anti express words of an Act of the general legishiture. (2) Hecause there are no words in the .statute 31 Geo. 3. c. 31. which take away the right of appeal ; although the words of the pro- vincial statute of 34 Geo. 3. c. 6. are more extensive, yet there is an express saving of all prerogatives of the Crown ; and if the Act is to \)Q con.strued as intending to take away the right of His Majesty to receive and hear an appeal in the case specified, it was not within the competence of the legislatur*' to pass such an Act. — Signed Henry Brougham, for aji- jiellant, antl for re.spomlent, Stephen Lushington. The date of the judgment ought to 1h' 24 Nov. 1H32. Present, Sir John Leach, M.R., Sir Chris- topher llobinson, aiitl Mr. Henry Ellis. Sir John Leach, MR., is re- ported to have said : " It is not necessary to hear counsel on the other side. 'I'he king has no power to (h'lirive the subject of any of his rights ; but the king, acting with the other branches of the legislature, as one of the branches of the legislature, has the powt-r to deprive any of his sub- ji'cts, in any of the countries under his ilomiuiou, of any of his rights. ' r • ! i I !|:! CnviiUBB V. AVLWIN. 408 B.N.A. ACT, H. 101.— BROUGHAM'S OPINION. Tlu' petition must, tlit'n'l'on-, bi- ilimiiif^Md." Thu report of C'livillicr r. Aylwiii in Stuiirt'.s ]{., p. 527, contiiins u uotc of Lord Uroiij^liani'.s opinion, while still Mr. Broii^'lmni. His opinion wiis : " 1 am clriirly of opinion tliiit no such limitation is valid to bur itn appeal to the Kiufjin t'oiincil. 1 shoidd {greatly doubt if any (Hilonial Aet, t/ioiu/h alloirvd by the t'rosvn, if uneon- llrnied bv Aet of Parliament, has power to taki' from tliu subject this ri<;ht. But a colonial Act uever allowed, can ch'arly have no effect. Kvt'ii in cases where u liinittition has been validly intro- duced by law, the Privy Council have Im'cu in the practice of allow- ing ap])eul.s almost tis a matter of course. " Such petitions are termed pe- titions of doleance, and, I l)elieve, never refused, although the law may have excluded appeals under a certain amount, or after a certain time." Lincoln's Inn, '1\ June 1823. The note in Stuart go«>s on to say : " It woidd seem that where the question arising upon appeal from a colonial court to His Majesty in his Council, is one of ordinary municipal reguhition, re- lating to the credibility or com- petency of particular witnesses, or to the weight of evidence, or to the regnliuity in point of form of the proceedings in the cauw, or generally wherein the grievance complained of is appliad)le to the party ajjpellant and confined to Lis ca\ise, then the limitation of the right of appeal to certain eases in amount would l)e followed by His Majesty iu his Privy Council. Ancau.se such limitation is convenient, and sanc- tioned by long usage, and the court of the King in Council itself. Such a limitation has at all times existed iu relation to ap^Kials from the French islands of (Jueniscv, &c.,and in olil liritish colonies ; hikI as to the latter, it would prolMd)ly Ih> found that the limitation had Im-cm evteiuled to theiu by analoijy from the practic»' which had long ob- tained as to the former, and to Ik> traeeil to the power of euteitMiniii}; or rejecting apju^als from tlic colonies, according to a eertniii known practice which the Suprcnic Court of ApiH'llate .lurisdictioiiliiis at all times exercised, and wliicli, being the practice of that court, is the law of it. It is difficult to conceive any other reason wliv appeals from interlocutors rendcrcil in the courts of the French islniMls and of the colonies have iH'cn luii- versally disidlowed by the Privy Ct>uneil, whilst apiwals from inter- lix'utors rendered in the Scotili courts have, in the cases ])erniilt('(l by law, lieeii allowed by the House of Lords. Apj)eals from ttuenisey, &.V., to the King in Coimcil hiive in all cases exceeding t"{(K) Imcii allowed, and a like rule obtained in all the British Colonies. In this vi»!W our provincial statute, then, in enacting that appeals to the Kiii); in Council shall lie oidy in eases above £500, cannot Ik' said to liiive abridgetl, or attempted to abridjje, the apiH'llate jurisdiction of thai court. " At the same time that such, it is apprehended, is the general rule, there is a class of eases wliieh may perhaps not be comprised within it : — " It seems to l)e e,s.sential to the maintenance of the imperiuni of ii metropolitan State over its siilwr- dinate possessions, that the judicial pre-eminence shouUl reside in the metropolitan State, and, therefore, that the right of judging iu the last resoit, as well iu criminal us in civil matters arising in the colony, or HulMirdinate State, should 1k' ht'ld by the parent or metropolitan State : otherwise it would be in the power of the subordinate State, liv jiuUcial decisions, to undermine and ultimately to absorb the authorit; B.N.A. ACT, s. lOl.-QUKSTIONS FOll I'. C. 100 of thr mclnipolilaii Stalf. It is in niU'stiiiMs t()ucliiii}{ tlie rcliitioiis, howeviT iciiHitt', Iwtwt'fii tli»' two Siulfs— mitl tlu! (i|ii'ratiiu> williiii tlic limits of ihc iitliiT, ami «-oiictriiinp; in any w»v, lutwcMT indirccllv, the .so\f- reji'iit* iif tln' oiii' over tlio otlicr — ihul tilt' Acts of till' colonial Icfjisla- imvs must hv int('r|>n'tt'il, or, if iiit'd Ik', iKnlrolliMl liy the antlio- ritv I'f the inflro|K>lit4in Statf. Aiitl witli rcspfct to this class of nix's, tilt' Iviii^ in Council conld mill oii}.'lil. it is coni'civt'd, to tMitcr- l.iiii a|iiKiiis — howcvtT small the «umiiu'oiitr(ivfrsv mi}i;ht Im- — if tlu- (;iM'» wrrc such as called for the iiiii'r[Kisition of the jiiilicial antho- ritv. Tliiis, in the eas«> of a decision ill till' I'lilonial conrts concerninj; ilii' ii|H'nitii)n of the Kiitiiliilt' of Geor;;e II. enaetinjj tliiit liinils ill the colonies shonld lie '«i^i'il mill taken in execution as I'liiittr'^, and that exaniinations taken U'fiire Lonl Mayors of towns ill Uri'iit Britain shall in cases lie ivfcivtil lis eviilence in the colonies — iir loiicliiiig the prero<;ative, the ctclfsiusticiil establishments, or loiiiifclfil in any other way with imlilie liiws — a|i|M*als wonlil prob- iiliiy Ih' I'liltTiaineil by the Kiiifr in Vniiiu'il from the ctilonies. 'I'he aliove tlistincliou ap|)ears siilK- litiitly I'lcur, anil accordin<; to it till imlilif convenience is consulted wiiiioiit any infringement of the right of the parent State. Hi'ld in C'ushiug v. Dnpny [see ""'(. p. 83] that Cnvillier v. Aylwiii WHS open to review. See din Lord Cairns, L.C., in The- luTfje r. Laiidrv, in Snp. Ct. (jne- 1«, 29 Mav IH7G ; in P. C. 7 Nov. b:i); 2 App. Ca.s. 102, 10 L. J. 1' ('■ 1 ; 35 L T. 640, and ante, \> 15. Sec Christian v. Corren, Miiii. Term. 17U5, 1 P. Will. 3.1!';'JEq. Cus. Ab. 81, where ut It ( ouiuil held nt the Cockpit, it «a-liol(l that the Subject cannot be ilt|.rivtHl of his right to iip|)eal by '"J words iu the king's grant to much less if the ill that particular. Cl'VIM.IKII c. .\V I.WIN. that purpose, grant In- silent 'I'hat ca.se was ilisapproveil in The Queen r. Alloo Paroo, from S. C. Honibay, 'JU .lune 1SI7, ") Moo. P. C. 2J>(».' There a statute, 1 Ueo. I. c. 71. ss. 7, 17, gave the Crown power to grant a charter to n court of justice at Hombay, with the same powers, iinmuiiities, jurisdiction, anil authority as were vesteil in the I'ourt at Fort William by 1!J (leo. 3. c. (i3. and amending Acts. The statute 13 (leo. 3. c. (13. . s. 18, contained a {Kiwer to appeal to His ^lajesty in Council in such manner and in such cases and on such security as to His Majesty .should .Si-em meet to prescriln' in the charter. The charter, grantcal shall be allowed. [See 5 Moo. P. C. p. 2J)9, and The (^ueen r. Ediiljee IJyramjee, 5 Moo. P. C. p. 27S). In Reg. r. Alloo Paroo (cited above), Lor«l Brougham .s:iid, in refusing leave to ap|)oid in a criminal suit from India: "'Ihe Crown may almmlon a prerogative, however high anti es.stuitial to pub- lic justice ami valuable to the sub- ject, if it is authorize*! by .statute to abandon it," and held the court l)elow had an absolute al in criminal ca.ses. His Lordship then referred to Cnvillier v. Aylwin. In the case of 'I'hk Qitken v. ■[•„r, Qcebji ». EnuLUKKBYUAM.iEic, 8 April 1846, Bykamjkk. 5 Moo. P. C. 27U, 28U, a case in which lenve to appeal was rt^fiised by the S. C, Dr. Lushiugtou said : "Nor are we aware that in anyone single instance the Crown has ever, by exercise of its prerogative, granted leave to ap[)eal in any such case" [appeal in felonies], and 'fi 1^ H 1 f ■ |M::,r i ; [^v '•. ' 1- • ' -i 1 ' ■ i, IM il Redi'Atii I'. Al.I.KN. HO H.>f.A. ACT, s. 101— llATIFICATION OF COL. ACTS 1)«' coiitiiincd (|). t2!M)»"It «i»"*t Ito rtH'ollccit'il ilint this is a ciiso in wiiic'ii tin' Crown uninls n clunlt'r liy vii'tiif of lui Act ol' I'miiiiiut'iil, niitl timl clmiti'i' must lie con- t siiipowiitT was not to lie iiahlc for (hiiiia;>;<- ocni^ioiit'tl \iy tlu- fault of .such pih.t), Dec. .'}, 1H72, 4 L. ]{. V. C. oil ; 12 L. J. Aihii. H; 27 L. T. 725; 21 W. U. 27(!, it was ai'f^iicd tlmt tlic n<;lits of Hiiitors in the V'icc-Adiiiirahy Court of Lower Canada cannot lie affected or taken away liy a Cana- tlian statute. IJut .Sir Holiert I'hilliniore, in deliverinj^ the jiidfj;- nieiit of the P. C, said : ''It lias Ih-cii contended liy the appellant that the ' Ililiernian ' is not re- lieved from her linliility.. This contention is founded on this posi- tion, that the general and maritime law is alone applicalile to the case, liy which law the wrong-doing vessi'l is bound to make full coni- pensition to the suffering vessel for the dainag(> inflicted upon her. In order to sustain this position, it has been asserted — first, that the Canadian statutes [27 & 2H Vict, c. 5H. s. 10, and 27 & 28 Vict. c. 13.] on which the learned judge relied are without authority in the Vice- Admiralty Court. It bus been said at the bar that this .suit might, an. u, the partial, or entire, iulii|iii(iii ui rejection of the law of ii t(iii'i"ii country. In the present ihm'. ih, law involv(>d is coi.i; iiied in iiii Ait of the legislature of n colonv belonging to the Crown, ami nititltil by the express sanction df H,.| Majesty. Their Lordslii|iH Inn, no doiilit whatever that this Ihw, in every case to which it isapiiiiriililc, is of binding authority i(|uiilly in the Ciueen'> High Court of .Vdmi- rnlty and in the Vice-Adniiraliv Coiii't of Canada, as a court of ap])eal from which, it is to he i>ii. served, their Lordships mi! now sitting." As to the Rig^ht of Appeal.- Hiirge on Colonial Law, vol. 1, p. xlvii., .says that the Govprnor's in- striictions wereto allowanapiM'iilto His Majesty in his Privy I'oiiiuil. " where the sum appeiiled for iiiitii us" exceed 500/., that the iipiH'!- hint gives good .security, and tluMi, " Providctl, nevertheles>, wlitif till' matter in (piestion reliiti's tu the taking or demanding any duty to us, or to any fee of nllici', or annual rent, or other siicli likr matter or thing, where the rij;lit iii futinv may be bound ; in nil smii cases you are to ailmit the ii|i|Knl to us in our Privy Council, tbdiijjli the innnediatc sum or value ap- pealeil from be of less viilm." Her Majesty can, therefoiv, iipou a petition, allow an appeal in on*- of any value. Sec lid parte Jmoli de Pariente, Nov. 21, IS't', 2 Kuapp, p. 70, quoting an oiiiniuii of Northey in a case in 1717. *'« Forsyth's Const. Law, 37G. In OnpiiAN Board v. Va\ Kkenen, July 17, 1S29, 1 Knnpii, 853, the Court of Appeal, Cape Colony, refused to gi\e leave to appeal, 9 Oct. 1823, from a ikw made on 18 Sept. of the same year. Lord Wynford said : " There is an established rule that if an appeal be granted, the party nws bring that appeal to u beariij B.N.A. ACT, X. 101.— H. OF L. & COL, API'KALS. Hi williiii iiiit' yi-'iii". iii>l*'Ns lie olilaiii tiiillH r tiini' liir tin- prosi'dition of ii fniiii tlii-- lioiird, aiul llu' rcs|K)n- ,|,nt iimv a\\\ updii lis to ilisiiiiss \\{f ttiipcal oil airoimt of the ,|,.|,iv ill prt'sciitiiif,' it. Tliis rule Ii:i> lU'ViT Vi't U'cn cxtt'iidcd to ;i ciiMc where the aitpeal lias hccn ntusiMl bv the eoloniiil court. It ;. Id he hoped that appeals will nin-h', if ever, lie refiix'd to parties wild iiiivc any preteiu'o of interest. Till' kiiij; is anxious that complete jiiMio' .>>hoiild Ik* done to all the iiiiialiittiiits of the province heloii};- iiiL' til his empire, and has directed ill, I'owrnors of those provinces to allow npiH'als to himself in council. Sliiiulil, however, a ca.se occur in which nil api>eal has lieen refii.scd, and the party has neglect<'«l to fiilliiw 111) ''"' "PP*'"' ("llowed on {H'titiiiii to the king) for an iiii- i>ii>oiiiiliie time, we shall fet-l it our iliilv III I'eeoiiimeiid His Majesty to lli^llli^s it." lint as that partii'iilar Ms'ivtVirrd to the rights of infuuls, am! the respondent had only taken ilic olijwtidii at the bearing, the :i|i|H'iil \riis heard, notwithstanding an iiiu'eiisdiinlile delay. See also Lid Brougham in Reteuiever v. ONrimillcr, 2 Moo. P. C. "p. m. Tliiw is a precedent for the House iif Liii'ils ediisiiU'i'ing the constitu- limiiility of an Act of a colonial |;i>liitiire. In 1S40 the tpiestion I'l tlu' validity of an Act of the liniviiici' of Upi)or Canada was I onliivil to lie propounded in cpies- liuiL-to the ju(lg«'s of Fnglund, and jUilMniisiield, 1 May IHIO, de- livi'ivil the iiuauimous deci.sion of jilltiu,' judges, except Lords Den- jiiiai: imil Ahiiiger, that the Act pas Hltru vires [.see House of jLonls' .rounials, vol. 72, pp. 224, |2'4 ; tee ante, p. 3 10] . The Act iu lqiif dt'igy hinds, and cau.sed Ipvai I'xoitement in Cuiiuda at the l''""' .Should an occasion of such I'llnr ('.xcitement occur again, I«tl«r from a provincial legishitiire ■*«.'5iiiH a Inw, and refusing to alter . »liii:h the Dominion Pftriiument and Privy Council hold unreason- al. It is UH(icr.-tood this practice of special reference was origiuateil by I ■ ■ i :;l^ V * n:Mii- mi 1 412 B.N. A. ACT, s. 101.— WTDK POWER OF P. C. /m r« STROMAdi. .| fx'o. 2') H, H. <•. 10 (Petitions to thi' C'oi.rt of Dt'lfgntt'S to hear an iippt'iil.) See Mnlliows v. WurniT, 4 & 5 Vasoy, pp. 103 and 2.'{, rcMpt'ctivcIy. After the ha'ttle of Waterloo, the claini.s of Britisii .>je(.vs for in- demnity for tlieir los.ses (hiring the Freneli revohilion aiine in. These chiinis were (lir»'ct4'il to \h' con- sidered Ity Hi.s Majesty's Privy Coiineil \sce 2 Knapp, p. 7]. Wliere no ri<;ht of appeal hy law P-xi^ls, the proper eoiirse is to l«Mi};e II |Htitioii, stating shortly, hut » siieiiiictly, all the facts and material circumstances, and i)raying the griiiiling i.f special leave. Or a petition to the Secretary of StnU' for the Colonics, praying Ilcr Majesty to refer the .samn to ller Majesty's Judicial Committee for hearing, under the provisions of 3 & I Will. 4. c. H. s. 4. Ill IV Haji-sav. /„ i.f, Ramsay was such a ca.se. In Q. U. (iiiehcc, March 1H07, 11 L. C. J.I.jS; in P. C. Nov. 20, 1870, 3 L. U. P. C. 427 ; 7 Moo. P. C. X. S 203. Drnmiuond, J., fined Hainsay, a counsel, for alleged contempt of court. Kainsay brought a writ of error to the Ct. of Q. H., hut the court, Duval, C.J., Aylwin, Badgley, and Drummond, •)•!., Moiuh'lc*, .1., Jisenting, held that no writ of er r lav. Sir Williu . Erie (late C.r.C.P.) wiid: "Tlici Lordships have con- sidered tlm;, hy tlic 3 & 4 Will. 4. c. 41 s. 4, there may be a wide jK)wer vested in ihc Judicial Coin- inittee of rhe Pri\y Council. That section enacts tlint it .shall Ih' lawful for the Crown to n'f<'r to the Judi- cial Coniniiitce for hearing or con- sit'cration any matter whatever which Her Majesty may think tit, and such Cor.imitte'.' shall tlierciijHin hear and consider th ■ stiii:e, and shall advise Her M-.jesty tlicreon. Tlial s«'ction Ivih lieeii acu- 1 on i'> se\('ral ca.ses, and this ConiinitU'c have had then to advi.se Her Majesty as to what i.> the best course to be pursued. It van the coufhu that was taken in Bniny r. Jnstiro of Sierra Leone. I am (lireotcil by their Lordships to ask von wliether, if you prefer that conrM', you WG..' '. Ix' content witliom pressing for a judgment on tlic point resjMJcting the writ of error or the right of apiM-al from ti ? order made thereon ; and on tla' lUHier.standing that you assent to that course the judgment of tin- court will Im', that in the ciiiiim- stances disclosed by your ]Mtitio!i, if upon your ap|>licatioii to the Crown Her Majesty's Secretary of .Slate thinks lit to refer tin- iaiitl( r of the petition to the Judicial Committee, we will hear it and advi.sc Her Majesty thereon, in tlic same manner as was done in Hiiinv's case. This course will icJicM' us from con.sidering wiictlu-r s|HHial leave to appotd should be granted." The cour.se ;tition, if Her Majesty's Scj-retary of State tliink fit to refer the matter to us we will lie«r it, and advise Hit Majesty on tlu ca.se." CoiisJa'jesty through tlie Colonial Oflice.Ht'tting forth the nliove i'mts »!id praying tluit such petition B.N.A. ACT, 8. 10).— CRIMINAL APPEALS. 413 iiiigat Im' icferi'nl to ths Jiiilieial ('ouuiiittft', niul that the onlcrs ob- iivti'il to, uihI tln! coinliMrt of tho I'liiif .riistu'i' in till- triul, mij;hl 1h^ inqiiireil into Tlie mutter was siKviiilly rt'tVrn'd hy tlu- Colonial Otlict' for the coiLsiihTatioii of the .luilitiiil Coniinittit' to aclvisM' the Crown. Xo formal upinioii was ilcliviivil hy the Committee, Dr. Liisliiiifiton stating it was not iiisioumrv until tlieir n-port luul Uvii appjovet' Her Majwiy Ipiit see Smith r. Ju.stice of Sierru Leone]. The report of tht^ Com- luiiltf nromuiendeil that the lines U' rctiuoed. /» re McDki,.«<)tt, in P. C. Nov.3, 1S(56, 1 L. H. P. C, 1200, was ;i|H'titi()M forleavc to ap|>eal from an i.nlcrof llie .S. C, British Oiiiana, cuimiiittinf; the pnhlislier r.f a lival journal to prison for six moiitlis for alleged eontempt in riiiiinii'iits made on the administra- tion of j...stiee. Lord Westbnry : ■'Tlicir liin'dships regard this ca.se of jrn'nt iui|K)rlanee, and one that iiiii\ li'udto important eonseipuMiees. Oil I III' one hand, it is essential to [iivstrven court from all ohstruetion h: till' I'ourse of jiistiee ; on the "ilii r hand, it is very desiralde that ilniv should he a check upon any iirliilnny exercise of the powers of iIktoiii'I. Hut at present, having I'pird to tlic distinction between iliiii;;s ildiif liy prai'titioners of niloiiial court-i, and things ih)ne in tiirla; tliiims t'.(Uic direct Iv leading loinii'ifi'iciii'c with the ailministra- I'oiiof ju.stiic, and things whiciido iiol collie within either o. tl ese 'aii';;orics, their liordshijis are dis- |»'vilti) jjive leave to appeal, bi;t "iiliuiit iiiejiidice to the question "liiiher tbeiv is a right of appeal '"■ iioi." And by an order the pe- i:'>oai'r WU.S idhiwed to p\it in his i'l'M, 'Sllhjeet to its CiUnpctcllcy '•■iui; iini'Miiiiicd, and notice of the i'l'ixiil was to lie given to the ju their eirenmstances, and in which leave was given owing to .some peculiar objection to the conmiittiils for contempt. In the case of Mag- nus Smith r. Tlie .Inst ices Sierra Leone, H Jan. 18 II, I] Mo... P. C. ■'{01, there was an orde.- of the Ue- (•(U'der's Court of .Sierra Leone, disbarring and strikii.goff from the rolls a priictitioucr ol that court for alleged contumelious conduct. Hut, in addition to this order, there was a distinct and scparnle oiu", ordering Mr. .Smith to be lined and impri- soned for the same allegctl con- tem[)t. Now, the mthU- in which the Comn; .tee tleidt v'h these orders bi'ings out the di ''tion as to the r'lihl to app«'al in ilese ca.ses in the clearest nninuer. Mr. Smith's petition was presented through the Secretary of .State, and, after con- siih-rable delay, it was, by an Order in Council, referred to the Judicial ConunitttH'. Their Lordships, in ti'iil ease, entertained the |H'tilion aguinst an oriler for disbarring Mr. Smith and striking him oft' the Kill, because they ! ,ld lliiit that was not an appropriate punishment for eontempt of court. I'hey took no notice of the order for imprison- ment, which they seemed to consider ^- 1 ■ . 1 i I ii'- 'fir 411 B.N.A. ACT, s. 101— DISBARRING BARRISTERS. U\ M '!'! Ill IT M(I)wt- to U' in tin- siiiiu' niti'^foiy with the ""'■'^ fiiif ; liiit witli i»';iai(l to the fine iiii|Hi>«'ii liv tlic roiiii lor coiiti'iii'it, fii ,;■ DrmsiK ,1,,.^ i„,i,| Uii.y i„„| ;,„ jmi>.ii.-t)(>ii an.lA..H.M.Kl.l.. ^,^^-. i,^ ,„„|-,l,,„ ,1,,.,. ,.„„,,, „„ ciiti-rUiiii till- it|>|i«'ul. Ill tlif <.'as<- ot' Dtrtriiic iiiul Arriiidcll, 121 •liiiii' IHIl, :< Moo. I'. C. Ill, tli.Tf wiis nil ii|>|ilii'atioii, Iip4 of all, and ^|x■l■ial IcuNC <;iiiiitf rcvorwd n|M>ii tlu' hiiiiu' <;r .Jan. iHll, ,'{ Moo. 1*. ('. p. ."Hi", delivered an opinion, ill which he said : Their Lord- xhip >.;e clearly of opinion that '.he onlei for strikiii;^ off the rolls was without any foiiiidatioi! what- ever, oiijjht not to have Im'cii mad", and must be rescinded. Thev are, however, of opinitiii that they can make no order nspeetinn tlie line ilii|Hi.sed hy the court helow u|X)ll Mr Smith, hut their Lordships ute In r» roLi.Aiiii. «'learly of opinion, on the whoh' of the e\ideiice in this euiise, that there is nothing whatever to uffi-t't, in iinv resp«'ct, the chnnieter „| Mr. Smith." //I rv DowNiK and ARHisnEii. That was acase of two a|)i)(iil.sfi„||, two orders of the S. C. of Biiii-li (iuiaiia,sii>pendiii>;froiiipiiii'tic'i'|'i,i si.\ months two coun.sel. Leave to np|M'alwasfria;ited. Lord Hioiinlmni delivered the jiid};meiit of tlicCdUi. initte<>, holding the order of >iis|hiii. sioii ought not to have heen iiitii|<'; that it was not such a coiii<'iii|il n- to wariimt the orders ininli' ii|h>ii them, and Her Majesty wmilil U advised to reverse them. And sec Mathews /■. Wiinin, 179H, I & 5 Ves«'y, ISC. iiiul 'IW rcspcctixi'ly. Appeal where the Wrong Pnnish ment is Inflicted. In re Wallace, Nov. 'l^ IHOC, 1 L.U. P.c. i»h;{; ;|(5L..l immi [present. Lord Westhiiry, Sir .1 I'olvih', nnd Sir E. V. Wiiiiinih , decided that where an iittoiin'V ami liarrister acting not in iii'* indlo- sional character, hut as a |iri\iiir suitor, commits cr>ntenipl of cipiiii, the court [in this case the S. (' ..i \ovii Scotia, consisting nf fm' judges] ought not to iiillict 11 |iin- fessioiial punishment of iinli'lln'i' suspension for an act whicli.yifr «', did not render him for tlmt iici,/)i.- sc, unlit to remain a priui it inner. The N'ova Scotia judges I'olinwnl Lechmere ('harlton's ciik', 2 My .*^ Vr. .'IK!; hut instead el iiitlie'l ing 'he ordinary and loiig-iiailixil [King r. Clement, 1 H, \ .'li'l 'ilSj kind of iMinishiiieiit, iii.i.;. I'. niicand imprisonment, for Wiilliiii'- contcin|)t, committed in hi>cii|iiifiiv as a suitor, tliev siihstiliited luiiffir- cut kind of punishment Iroin ili' ordinary, iiamciy, siis|H'iiile(l iiiii! from itrr.iiicc for an act wliiili, /*' »!•, did not render him iinproiieri" remain us a iiriK'titioiier of ill'' court. Ih re Poi I.ARI) (h Iwrrister ami Quwn's c.)uiis«'l nl Hong K^fl .luiiel(l,lHOH I pri'W'ni,Sii \V Kiii. B.N.A. ACT, 8. 101.— DISREGARD OF LEGAL PROCESS. 415 Wood, Sl\vTn,L.JJ.,Sirtl. Col vile, iml Sir K. Vaiinlmn Williiims], 2 L. H. I'. C. 10(5; 5 Moo. j> ('. v. S. 111. I'ollaitl's |H'ti- imn \vii> l(HWiii tiic Jiiiliciiil ('oiniiiittff lor tlit'ii' opinion. Tin- ]M'litioii ;i.k((l till' M'ltiiifi iisidc ol" an ordci- tiiiiiii.'. Ill- in llif altfrnativf siispcii- .idii t'oi' 1 1 days, tim |M-titioiuT l'«ir all(j.'cil <'iintt'm|it. TIk- iM'tiliuni'i- had n'c<'iv<'d no notice of the s|M'- citii' oiTfiKv cliai-'ifd, iiur had any (,|i|K>rlniiity of •rotcstin^' Ih'cii I'iu'ii ' ■ ' ill) III'" allt'ficil con- ii'iii|>i \viix in diM'i's|ici'l fully ad- iliv-.«iii',' llif Cliit'f .lu.stii f (.Sinnlc) uliilr cciiiiliii'linn a cau.M'. Tlicii' !,iii(lslii|i>* in tlu'ir report to Her Miijc-ly, l!' .lunr 1>"K). dvised the ii'iiii--ioii (»f the line of .s'J(M) (III the ^.Tdiind ; '^ that in their iiicl;;m('iil no [h , should Im- |iiiiii'^ln'd for eorifoii>!tt of <'0urt, Hhicii is a eriiu:' .A \|H'cilic olTeU'i' ' !i Sijfetl a ilii'ir Lonlships were not saiis- liiil that a distinct clinrp' of the "Ifiiirc was siatelii|i« wiTi' not sitisticd that each of llii' >ix aiiiciuilted to a contempt of I'liiii'i, di' was lei;ally an , liy Lord Hlacklinrn, Lord Moiikswel!, Lord iloldion-e, and Sir U. (iMich. Di; I was a harristcr praeii>inj; in Hritish Honduras. He apjiealed a^jaiiist a xerdii't of a jury Ihalin^ him j;uiliy j: the appellant to lie struck olT the roll Hy Onler in Council 12 i»iij;. IHSi"), Dillet's |M'tition ;.nd e.vtracts were ref'-rred to the ('hief Jiistieo to make such vdiservatioiis he tlu)u;;hl lit, and to 1h' at liUrty t > ap|H'ar. The Chief .Instice for' warded his oliserxations to the Hef^istrar, hut did not apinar. These (diMl'Mllions Mere suluililted to the |{)iaid, ami, upon their rejiori, l)v Oi'di'i- in Ciiiineil. date was so at th«> time when he made th(> afVultivit to the contrary. Their Lordshi|)s found that the remarks uukIc by the Chief Justice to the jury grossly misrei>resentejl the real issue, and was most nid'air to the accused — [theChief Justice told the jury if they accpiitted Dillet they would l)rand the Attorney-General of the colony, a nuigist"!(te, and others, as perjurors, and, without iM'ing sujiported, nuule state- ments of a visit of the .lecused to his, the Chief Justice's, private house] — and that a conviction ob- tained by such unworthy mean.s could not Ix' permitted to stand. And their Lordships directed acf)py of their judgment to be forwarded to one of Her Majesty's Secretaries (»f State. On tlie hearing of the op- jieal, Lord Watson gave utterance to the (Missage given in Lop's case, that " Where substjuitial and grave in. jnsticti has lieen done, there is n reason for inU-rfering with tbe course of criminal procedure."' In Dekmino's Case, [1H!)2] A.C. 422, leave was refused Present, Lord llalsliury, L.C, Lord Hir- sclicU, Lord Watson, Lord Miic- naghten. Lord Morris, Lmd Ilannen, Lord Sh.md, and Sir llichard Con-ii. The petitioner lmd iM-en sentenced to death in Mel- bourne for the murder of Kiiiilv Mather, at Windsor, Vietoriii, It was alleged the prisoner was in.siuie that no time had Ixen given for u fair trial, and that medical evidoncf of insanity ha\eciition by siniplv st'iid- ing over such material as !ment until tin' papers arrived. Leave to Appeal in a Divorce Action. — Allowed in Le .Meiinii'rr. Le Meuiiier, 17 March, [1H91]A. C. 2H:\ [pre.sent. Lord Wat s'Ui, Lord Maenaglitcn, and Sir 11. ("(uulil. The case was from S. C. Ceylon, Tliea|)pealable amount fixed liytlio Charter of Justice is Bs. .'i.OCKi, Imt by the Code Civil rrweduie. m9, a certificate of fitness of a|i|K'al, it would ap|K'ar, might b- gniiili'iiifi iIk' i«'fitioni'r's nction, wliicli w* '""' '^ i'<'t' '>>■ ri'iisoii cii lii.'* wilV's •illegt'tl luliiltfry. lit- ■innici! tli:il trcpdoin IVom liiihility i,isii|iji()rl II witV must Iw of imire tiiliif lliiin tilt' iippeiiliihit' iiiiioiiiit. S|K'(iiil li'iivc {;raiitt'(l. Ill F.i ptirle Macuea, Miiy l.'l, iiso;t| A. (". .iM); (5!) L. T."7;n, ill,' |H'titii>m'i' was coiiviclod Itv a jiin, miller the Indian Penal Code, 1,1 iiii iillfiiipf lo ''lit-nt. Ili'ld IK) ,iis'l'iir sjicciiil Icaxf. Lonl ITi-r- V hrll, li.C. 1 lliJTc licinj; also pivst-nf |,i,iil WalMiii, liord Munis, Sii' W. 1'i,iu1i,iiimI till' Hon. Clfo. Di-ruiian] Slid; "Tliin- arc, no doiihl, very >|Kriiil luiil I'xcfptional c-ircuni- 'i:iiurs in wl.icli leave to appeal is ;;riiiitnl in rriuunal eases; lint it \\„iilil 1m' (onliary to the |)nu'liee of ilii' Hoaiil, and very iniscliiovoiis, ii ,iiiv I'liiinli'imnee were {^ivt-n to ill. \ii'\v lliiit an appeal would Ix' ;ill,iwc(l ia every t'lise in which it ,,.iilil U> shown that the learned jiiilp' hml iiiisdireeleil the jury." WliiTc there is no jurisdiction In In llie |ietitionei' I'or the allef^ed liffiiiir, siiecial leave will he grunted. ViuIiimI r. Att.-deii, ol' New S„Mlli Wiile., July '1\\, [1H01| A, 1. i.m; m L. .1. 1'. ('. W; n.j 1, r '.Vl\ liHi'M'nt, Lord Halsliury, 1,1', Liiiii Watson, Lonl lloli lii'iN', Liiiil Maenaf^hten, and Sir II Cimrh]. in tliiit ruse Maeleod niarriud, '■' ihr niliiiiy of New South ^^ili'S one y\. ^L, ami in her iiliiiiiic he was married at St. I'liiis, in the United States, to ^1 K t'. He was ai'terwards tried ''"I iiiiiviiicil in the eolory ol' New ^"iili Wales lor Iti^^amy, under the I ^itioii id' the C'liminal Law . Amiiiiliiient Act, 1HH;{, K! Viet. P S.W.) N'o. 17:— "WhosiM'ver luiiij; umirii'd marries another ,l'r»nn iliirini; the life of the p'Tiiinr InisiMiiid or wife, where- ["^w such .second marriap' j''*'^ liliue, shall Ik" Uahle to iiul scrvitiiile f(,r seven years." |"l»ri' v.as nil allcjrntiiiii that the ;< !!340. first nuirriage had Ikh-u dissolved Eje parte in the rnited States. Lonl *'Iac"R^- Halsle .y, L.C, said: "'Whereso- ever ' may Im' read, ' wheresotiver in this colony the offenue is com- mitted. . . Upon the face of this record the offence is cha;'(»e leirislatiirc had intended the wider constriu-tion to he applit>d to the statute, it woidd have heen he- jond the jurisdiction of the cohmy to enact such a law. Their juris- diction is contined within their own territories. ' Kxtra territorinm jus dicenti impune u.ni pirctur' Would lie applicalile to such a case. The jurisdiction over the crime he- longs to the country where the crime is committed, and, except over her own subjects, Her Majesty and the Imperial Legislature have no power whatever." in Lkvien r. Rko., July W, lS(i7, Lkvien i: Hwi. 1 L. U. r. C. 530; .30 L.' J. T. ('. 02; 10 W. R. loP, there was a petition for special leave to ap|>eal from a conviction of a Jamaica court, whereby the appellant was sentenced to imprisonment for piiblishiiifj a seditious liU'l. Leave was granted, without prejuilice to any objection which might Ih* taken thereaffer on the part of the Crown to the jurisdiction of Her Majesty in Council in the nnitter. At the time of the petition, which was grauicd by Lonl Wensleydale, Sir J. T. Coleridge, and Sir E. Vaughan Williams, July ISOO, the pri.soner WMf" in prison under the sentence of v/hich he complainetl. .11! :!i'ii r- ill Lkvibr I). Rko. Ki:(i. r. MlHI'llV. AlB B.N.A ACT, s. 1(H.— ll..SrT/rLESS LITIOATIOX. Since llicii lu! Iiiiil Im'cm rclciist'd iijion liis own iiiciiinrial, iind liixl iccciM'd all tlic siilislmitiiil hciicCils f)!' ti IVcc piiiilon. Stopping the I'lisc, Lord Ciiirns siiid : " Now, Inn in>r lizard to tlic princi|ilt's upon tt'liicli flit'v have always actt'd wln'ii lfa\(> to appt'al iii a criiniinal cast' has listMi jjiaycil lor, princiiilcs wiiicli wcrt- I'nlly rccoj;'iscd in tin" case ol' till" Falkland Islu.idfi t'o. r. Tlir qwvu, I Moo. IV ('. X. S. 2Slit, tiiiir Lordsliips liav«' no lit'sitatioii ill saying that if at till' time when tlii' petition of t!ui appellant for leave to n|)|M'al was lieanl the liicls wliieh now apiM'ar eoillii have heeli iiuide known to their li(ii'dslii|is, tile leave loappeal, whifli was j;i\eii, would not liave lieeii ;iraiited," Appeal dismissed ; no ^ood purpose eonid lie answered l>y eiiicrljiiihiiji it further. Where the tpiestioii was one as to the rij;lil of .•Iiallen;;e of the jury, speriiil leave to ajipeal was •'ranted, lievinp'r V. \U-)i. (from S. ('. Vietoria), .Jiilv L'o, 1S70; .'J h. K. r. C. L'n2; ■{'.) I,. J. I'. C. »!»; 'J.'{ li. T. .'{(!2 [present, Lord Cairns, Sir .1. CoMIe, Sir .fosepli NapierJ. Or ini|irisoiimeiit of a IMT.son on the "iroiind of alle^^ed in- siiiitv, .Sinclair /•. Hroiij;hion, .lime" :>:i ISS'J; WheehM's I'. ('. La«, IHI, 111 Ur.n. r. Miiii'iiv, Feh. (», iHc.H, 12 L. u. IV (V .T); ;w L. r. IV C. .).{; :>l L. T. :)!)N. In N.w South Walesa verdiet of (guilty for iniirdei had lieen s» t, as'de liy the S. ('. N. S. W., and ii vrnirr ile HiH'o for u now trial f^ranted. Special leave to appeal was <;runted liy Lord Westl.iirs, Sir J. Cohile, and .Sji H. Kindeisley, n|)on the same I'onditions as in l{e<^. r. Hert rand,.) line 2«, lHV>i, 1 L. H. IV r.r)2()i:mL.J. ivc. r)i; kil.t. T.I'J, which wen that the prist)ner re- main in prisfi'i iinlil he Im- delivered liy (hie ■■onise of law. That was a ea.se in wliicli, in the lir.st trial of the reH|)ondent Dertrand in Nev/ South Wah's for iillerr,.d niiinh'i, the jury disagreed. On the .^ecoiKl trial the Chief .In.stice, instead df having Piieh witness exaiiiinod nj;aiii at lengtli, read over to each oik'. Ijj^ evidence in tlie former trial, ninl asked him if it were true, 'I'li,, Chief Justice also allowed tliecliiim of the Crown to reply. 'I'll,. |,.. spoiident was found guilty. On apiK-al to the S. C. N. S. \V. tlie court ordered a new trial. Tln' Att.-(Jeii. of New South Wiijis applied for leave to a]ipeal, uiiich was heard by Lord Wenslcviliiii-, Sir. J. T. Coh'ridt!:e, and Sir K Vaiighan Williams, and iillowid At the hearing, the alnive l)(iiii,| was joined liy Sir W. Erie, Kdlv, (Ml, and Sir 11. T. Kiudeisl..;, (ihe iiresent Lord Clianeellor, Linj iralsiiiiry, and Sir K. Clarke Uin;; eonnscl for the resjiondeiil). Sir i . T. Coleridge, liav iiif,' slalnl the ..iiove facts, said ; " I'lioii ilii- statement 't \ -is eonteiided, iir>i,i,ii iH-half of the res|Hindent, that llicir Lordships ought not to eiitcitain the ap|K>al ; hut they ihi nut iiccnlr tothis. I^jK)nprinei|)le,andonivlVr- eiiee to the decisions of this ('wii- inittee, it seems nndeniahic lliiiliii all cases, criininal as well as civil, arising in places from wliidi nn appeal would lie, and wlieii', liilur liy ile teine^of a charter or ^llllll^, the authority has not U'eii |iiiiti''l with, it i,< tlu> inherent prercifpiliii right, and, on all proper (wcii^inD", the tliity, of the Colleen in ('iiiiiuilii exercise nii a|i|Mdlate juiistliclMi, witlia\iew not onlv i^i ell^M^ >i) far as may 1»" tliediieainiliiKi of justice in the iiidividtiid cas.k; i\]sit tc preserve the due cnurN : procedure generally. Tin' inll•^^' of the Crown, duly considi riil,i< * ha-^t as great in these ri>|»il< i: , criminal as ki civil eases; liiiliM exereis«> of this prerogfttive i-ii"** n'giilated iiy a consiih-ialion il cuiD'^tancesnnd coiis»-<|ueii(TSi «i- interference hy Her Miijc"') - criminal ea.ses is likely in ^n i»^i instances to lend to mixliii'f i«l inconvenience, that in iIh''" *I Clown will he \ery ,-j;ory, on the aUe^i- liiiiis (if liotli parties; oji the one [ Imiiil, it is dear that the eoiu't be- liiw has I'.iiccied a new trial in a I <■!-<■ (if felony ; it is ftlle^fed !io siieh jtiialinn 'iH' had aceordin;!; to the juiiifiiriii pne'iice i i our eriniiiial IJHw ; if tills ailepit'.on 1»e correct, it IJ" I'liviou.s iliui an innoviiiioii !ias jbiii) iniidi without niithority, one |J>I .;ieal iiii|iortance, and establish- [lli^'a iireced.iit wliicJi may be e.ic- icilod to I* livipicntly acted or.." ■w en.se.s cited above 'vero In re ^MKSUMnv IStl, 3MfK). PC. r.y There Ames and others were Bed for illciriilly taking oysters. "'Mxtitioiicd fxjiiirtr for special •vetnnpiipni from the RovnlCouils of .Tei*ey atf!rinin(; the fine. Sjiecial ^^ '"« Aaw. leavt' was (^ranted by Queen's Order, IH July IH.'JS. In 18 II the Att.-Oen. of .Jersey petitioned that the Qint'ii's Oidcr allowing:; the appeal should lie reseindeplicjilion slu)uld l)e made to the constitutn. authorities who have the power to afford a remedy. In TiiK FAr.Kr.AND Islands Co. 1'ai.ki.ani. 1». V. I UK QPKKN, 13 June 1803, Tiib QirK.'i 1 Moo. P. C. N. S. 299, leave wre. granted U'cause the (piestions v, ised, although in form criminal, were in substance rather of a civil nature, uamtd , the right to kill wdd animals, a question of proprty iuNolving the rights of the Ciown tuA its grantees lliroughout the Isdkland Islands. Lord Kings- down, after (Stating the sentence given aboM', jmp' 11(1, that Her Majesty has authority by virtue of Iter prtMMigative to review the DD 2 I ! Mji UJ Fai.ki.anp Is- I.VNUH Co. ('. TlIK (Jl'KKN. I ma J{Kil. I'. C'oiilK. I.iiiiH hi: Son /A. 420 n.N.A. ACT, s. 101— ENOIilSH HAllRISTKIfS. MAIKAItl.ANK ('. l,Kt I.AIIIK. iliM-isiiMi of III! t'dliiniitl courts, \\'lii>tli*T tile prot'i-cilin^s In- of a cixil or criiiiiiiiil I'Imiiu'tcr, iiiiIosm Jlcr Majt'slv 1ms jNirlfd with such uutliority, siiiil : *' It is olivioiis tliiit tliisi|iiostion isol' too ^rciit iin|iort- aiiccto iiiiikc it lit tlint it sliouiii Ik> iiniilly coiicliKlcd hy ii suiiiiiiiiiy conviction in n jioiicc coni't. Stro/so Ksnonf r. Att.-Cicn. of Jersey, .'{ March 1HH.<, H A|i|>. ("as. .'{(II ; iVJ L. J. I'. ('. '2l\i aiul WIiccI.t's IV V. Law, 2(M, III I{i:rdered ti new trial, and refused leave to a|»|ieal. The I'rivv Council }i;rantcd leave i(» May' 1S72; and IH March IH".'}, I Ii". U. 1'. C. .-)!«»; fj Ii. J. ]'. C. If); 2!) h. T. Ill ; !) Moo. T. C. N. S. I().'{, reversed the decision of the (j. M., and directed the projaM' sentence to Im' passed. In the case of liOt'Is I)k Sol'ZA, Dec. 1, IHSH, AVhceler's l». C. Law, ')2!), special lea\e to apjwal was allowed from an order of the Liiiish (4uiana Court, imprisoning the p«'titioner, a barrister, (ininjj him, iind depriving him from pnic- tising for a year for all 'ged con- tem)it in certain letters to a ncws- impcv. Tint In-fore it was IichimI J)e Souza die of an Knjjli^ji doctor practising m Canadn, Him-. r. College of I'hysicians, 1 1 l'.('.() H. 5(1 1 ; mill note, sec. i)',\. | Sipal,,,, Dow'iie r. Arrindell, aiitr, p. |l|, ami /m rr Justices of C. |'. at An- tigua, (i Ajiril IS2!), 1 Kiiiipp.'Jd; III the latter case the |H'titioiicr, ImiiIi an attorney and advocate, hail Inih flisbarred for various acts (if |i|„. fc.ssionid and general miscuniliiit in Antigua, and he prayed the I *ii\t Coinicil to restore him .o ilic Ilu Lortl Wynford, after saying ilir English courts were relii-vcd of ihi, nnplwi.mmt duty, said: " NowikImi elites and attorneys have iilwiiv« been admitted in the colollilllnlnl'l^ by the judges, and the jiicl;;('« only. The power of siis|H'ii(liii;,' from practice must, we think, lie im'idental to that of andeal to his MiijiMv, the power to remove tlicin fimii practice! can never 1h' ahiis M(Mi. P.C. 181, 1>7; 10 W. H. .'{24, the (piesliiMi m"' as to how the iipiR'alnhh' viihii' i- to 1m' (K'tcrtnined. L. liroii;,'lil :iii action against I), in iiie Sii|Hwr Court, M(sin notes, with interest, niiioinili"!.' in the whole to less tlinn ('**' [the np]K-aluble amount I'f .'{4 Geo. ;{. c. 0.] L. issnci ii!* writ called sfii-iip iirrr', ultiuli }IN \. ACT. s. 1(»1.— AIM'KAL VALl'E. 121 ii'iit licfoi'i' jii(l;;iii('iit, on tlic ^ooils (if 1). ill tlic liaiiils of M., anil olilaiiicil jn(l>;nu'nt tlit'icon iipiinst till' j,'tKxl.s of M,, wliicli wiTc „t the viiliit! of i;i,(»12. M. Slid till' goods wviv Ills, lliionf;li nil iu>si};miii'iit from oiii- IVovo.sl. Ijiiivi' liia|)|M'al was gnmleil to M. Iiv the 1^. JJ. Qiu'Ik'c. On |M'tilion tiin'sciiiil till' It'iivi' (u a|i|H-al Loril ('iii'liihfoiii said: *' In di'tfriiiiniiig llii' iim'stiim of the valiii' of tin- niatti'i' ill dis|iiit(>, upon wliirli tin- lilllil III a|i|M'aldt'|)t'iids, tlicir lionl- >iii|is coiisidrr tln' correct coiirs*! Id iiil(i|it is to look at till' jiidg- iiiciil (IN it iilfccts tlic interests of till' imilies wlio arc |trcjiidice(l liy it, mid who seek to rcliexe ilii'iiist'lv(!s of it liy an a|i|H>al. If liii'ii' liiiliility ii|Hin tlic Jiidginent iMjI'aii iiiiiiiiiiil siitlu-ieni to entitle ilii'iii ti)ii|i|H'al, llicy cannot 1m' de- |iiiv('(l (if tlicir right lieeaiise the iiiiitlt'i' ill dis|iiit«> liapiieiis not to Ik' III' I'lpiiil value to hotli parties; aiiij therefore, if the judgment had Ixrii ill their favour, their advcr- sirv iiiifihl possihly have had no |»i\vtr to i|iie>tion it I»y an appeal. hi liii-i case the elTcct of the jiulg- iiiiiil WHS to plut't' iu jeopardy the wliulc of tile goods contained in the iMpiiut'iii from I'rovoht, for which ii >"i'i of £1,{H'2 currency had Itt'cn i«iii ' [.«■(■ p. 4;}2]. That case also decided that where till' juilgniciit ap|H'aled from is iiiliTlwiitdiy in form merely, hut liiml ill its effect as regards the ■li'li'llaiil, it must Ik- treated as a liiiiii jiuifiiiu'iit. The pomis which 'III' a|i|ielhiiits claimed as their fwii Wi'i'c "finally and eoncln- ^i^t'ly fixed hy the judgment to Ik- till' |ii'oiK'rly of the original delitor, ■mil must Im' applied in sutisfaetion "I liijiililils.aml there was no mode I'y whidi the apiM'llant could he ftlii'\?(l from that judgment except ''vimupijcal." ■''AL'VAc.EA ' r. Gaiithier, Q. B. ei', 18 March 1871, in P. C. Mayr,, 1S7,, 5 L. 1{. 1». V. 4!)J ; 30L.T.5iO;2l>W. K. 007. The ilelit in ipicstion was payahle l»y Sauvahkai' v, instalments, and it was aigned UAuraiitii. that it was a " matter in which the rights in future of" the i»artie.s might III' affecfed, and, therefore, under art. 1 17H of the Code of Pro- eediire [.vrr ti/iorr, p. .'{f)7 ), there wiiH a right of ap|K-al to Her Majesty in hi'r Privy Council. The q. H. (iiieliec had grunted, 1!) .Iiine 1K71, leave to ap|H'al to the Jiidiciul Committee. On the apiH'iil coming on to Im; heard the respo'ident raist-d the pre- liminary point that the miitter in dis- pute was lielow the appealahle miIik* of L°.')(K>,iiiid neither did theipicstion conic witliii' the exceptions which allowed an ap|ie!il for les.>. value. Sir .1. Colvile | there lieiiig also picscnt Sir IJ. I'eai'ock, Sir M. Smith, and Sir |{. Collierj stated the facts as follows: It apjH'ars that one Martcl was iiidclitcd to the insolvent Senecal in a certain sum of inoiicy [considciiihle arrears of a ipiit rent of .sll.'JHj for which a rent charge [of .SloO] had Iteeu commuted. That hiiiii of money I namely, the S|')(>{ was payiilile liy instalnici'ts, and it was also secured by hypothccatioii upon the land upon which the rent had originally Ik-cii charged. The in- solvent Sencciil,a eoiisideralilc time iM'fore his insolvency, assigned thi.s, with other choscs in action, to (hiiithier, the i'cs|)ondent, for \aliie. hut notice oi the assigiimiLt wa.s not given to Martcl until Sciiecal was in insolvent circumstances | in fact, notice was not given within ,'{() days of the dati- of the assign- iiieiil to the ollicial receiver, Saii- viigeau{. (iiiiithicr sued Martcl, the original dclitoi, for certain instalments of I hat sum ; thewhole value of the particidai' dcht so assigned lieiiig considerably below the app«'ahible amount of £500. Ill that state of things the appel- lant, who was the general assignee of the insolvent estate of Senceal, intervened, and there remained no ipicstion as to the liability of ihe original debtor; but the simple iM 122 U.N.A. ACT, s. KU.-VALUEOF INSTALMKN'IS. S\rvA(ir.AU I'. OaI'TIIIKR. ' '■ I (|iit'stioii Iricil in llu> Hiiit, nml Wiiich is MOW lnoiifiht Im-Foic thi-ir LoKlships (III iipiM'iil, WHS wlictlitT tlu> |iartii'iiliir Mssi<:ii('«- (oiild cliiim tiif siiiii sued for, or wli«!tli(>i' it hail |NiH8Ptl by the p>ii<>iiil iissi^iiiiiciit of t]w insolvciil's elTccts to his ^ciH'nil iisHi^iii>c. 'I'lic solution of thiit qiK'Hiioii, of foiirsf, iI<>|iimi(Is on the further (|ucslion whcth»'i' 'sig- nilkiition' or nolicc was m'rcssary to conipU'lf the title of the [mitieii- lar assif^iu'c, and whether that iiotiee had In-eii fi'ivvu in pro|M'r time. }Iis Lordship, eontiiniing, Niid ; " It has been arrised in the as- signments to (lauthier, and that the decision in this case would govern the rights of the [Nn'ties as to all thos«' assets. Miit their Lord- .sliips have not the nie.ins of know- ing whether the title to those other choses in action would stand upon precisely the same ground a.s the title to that in iiuestion in this suit ; some of them may have been reali.sed, and as to sonit of them notice may have been given long Ijoforo the insolvency. Their Lordships cannot a.ssiimc thai the facts touching these other debts were before the judges in (.'aiiada ; and, even if they were, their Lord- Rhips, cousideriug the wo, namely, by the intervention of the general assignee in a suit brought by the particular assignee to reuliHe u small sum as against one ot tlm^,. ih-btors, and not in a suit bmii^lit by the geiierul assignee to iiii|H'a<'li the whole transaction, are luit satistieil that it was a case in wliiih th' Court of IJueen's Ueiicli wmild have jurisdiction to allow the appeal. The power of the Coini of (^ueeii's Bench to alhiw m apiM'iil is clearly limited by ihi' Code; it has no |Hiwer, ii|him special grounds not provided lor by the Code, to grant s|ieciiri Kiim' to ap|)eal. The question, ihriv- fore, is, what ought now Id lie done. Now, their Lordships mic df opinion this case very much lesiin- bles the case of HeteiiicM-r r. OlM-rinuller, Feb. H, IHliH, 2 M(,(.. 1'. C $).'{, in which it HjiiHiiivd that the appeal had been in'i'i;!!- larly allowed in the colony, iIh' security not having Ix'eii coiiiiiictid within the pro|M-r lime, lii ilmt ca.se Lortl Brougham, having sitiitcij that the irregularity was tntni In the appeal as it .stootl, said this: ' The res|M)iident has, liowcvcr, ap|M-ared to the npiK-al hcrt', iiiid IcMlged his case. It is clear, llitiv. fore, that the appellant must ]mv Im-cii KhI to suppose that any idijii- tion ou the scoie of ine<,'uliiiilv was waived ; and though tlitir Lonlships are of opinion thai tlic order made by the court InldW. al- lowing the up)H'al, was, for waul d the .security iK'ing eomiiletcd, inv- gular, and could not be cured liv any waiveror implied consent on tlii'iNiit of the respomlent, yet they think it would be a fit case to recdiiiiiU'iiil the allowance of the a|)|K'al iiimhi a petition presented for that par|M)M'. 'i"he result will 1m' that the in."^' must stand over for such applica- tion.' In that ca.s»' it was lii'ld that the irregularity was laliil to the apjK'al as it stood; and I lie Committee though it thoii;,'lil thai there might be ground for allow- ing u Hpeciul appeal, directed tbo ease to stand over in order tbat there should be an api)licatioii for 8|iecial leave to ainieal. It hIso pointed out that the respondent, in UN'. A. \C1". s lul _IMI'|{()IM:U LKAVK. t2*l illitwiii;,' till' ciw lo lie l()(I caiiniti liiit (ilisci'Vf tliat tiir |,r(i|K'r <'oiiisf, wlifii Miicli a (jiics- lidii n-i this arisi's, Im to foiiii' licrc In iN'lilion as curly as |M)ssilil(>, mill iH'I'iiri' till' cases are lodged, iiiid llif t .\|)eiise oi' |tn'|iHriiij; tlmse iiws is iiiciirreil, in order to liriiij; liii' iHjiiit liel'ore their Lordships, Mini to p't the appeal disiiiiss«-d. Il is llirii (i|M'n to their Lordships Id nriiiniiu'iid Jler Majesty either I.I iiismiss tlio appeal, in which I'liM' tlu' pint ies are not put to tlii^ I \|H'iise ul' piepariii}; for the liear- iii|j; or III jiriint special leave to :i|i|i('jil. Their lioi'dships, if they wi'i'i' to ilisiiiiss this appeal upon liic olijirliiiii now taken for the liN time, would l)i> disposed to iliMiiiss il without suhjeetiiij; the ii|i|K'lliiiit Id the costs, which have Imii so iiimecessirily incurred. On till' oihir hand, they are not im'imriMl lo say that if a petition liml Ihi'Ii |)resi'iited to them for >|ifciiil K'live to appeal, there may not Ik' riiruinstunces in this ease wliicli Would have induced them to nroimiicml Her Majesty to •(rant >iiili hive to iiiipcal. They liy no im:iiis invite such an application, I'Ut Iwivf il for the consideration of llie apinHiint whether he would lui'tVi- to have the appeal now dis- iiii>H'il without costs, or whether 1k' would wish the c«w» to stand OMI, ill Older that he may jireseiit il in'titioii for special leave'to apiieal "jKiu Mifh },'roumls hh he thinks i"i;:lit iiuhice their Loi'dships to nvdiniiK'iul Her Majesty to give tliiil leavi'. "It in iilso to be considered that m lliosf cases in which an appeal '"'^iiij; Ih-'cu iiregularly allowed in "if t'olony, special leuve lo appeal ''"* bit>n gninted here, their Lord- ^liips have always required fresh wirity for costs to be given." Time whs ^rjvcn until the 15th Jiint; to lodge a iK-tition for siR'cial leave; if the petition ^yus not lodged i^vivAiiKAt' r. by that ihile. the appeal to .stand ^'-^'•'T'"'"- disiiiisM'd, without costs. hi Lamiikin r. Sorr.t Ka.st L.vmiikin »■, IJwi.wAV Co., in an "•Pl'''i'"''<»'' '^".\.".'..!!'l'^^ Dec. 1877 to the I'rivy siilisecpicnt priH'ecdings miah> 1'2 Council reported H.\II.WAV (' J-'eb. ;{, IHHO, 5 A pp. Cas. ;{.VJ; 2H W. U. h;{71 for special lea\<' to appeal, it appeared that Lambkin obtained, \',i Sept. 1H7.'), H verdict [from Mondeley, J., and a special jury) for 87,000 against the South Eastern Hail- way Co. of Canada. The ground of the decision was pure negligence on the part of the defendants' .s«'r- vants in not taking instant pre- cautions when there was warning of a storm. The Court of ]{eview (Monile- ley, Torrance, and Ueaiulry, J.I.] entered judgment for the phiintitl', and rejected the motion for a new trial. 'l(J March IH77, t^. IJ. Que- bee [Monk, Kainsay, Sanborn, and Tessier, J.l . I .set aside the vt-rdict and allowed a new trial, on the .sole ground of e.\c»'ssive damages. On 1.") .Iiim' 1H77, the Q. B. (^Uel)ee (present the hist-imiued judges and Diuion, C..I.] refused leave ti) appeal to the Privy Council on the ground that it was an inter- locutory judgnu'iit. 10 Dec. 1H77, the Judicial Committee ie[K)rte(i as their opinion that the apiiel- lant ought to have s|)ecial leave to enter and jirosecute his ap- peal against the order granting the new trial, niion depo.siting i,"JOO as seeurity for costs. The record of the ease does not contain the reasons for allowing the a|)|H'al ; but Doutro, Q.C., who was in the case, .says [Doutre's Constitution, p. 311] : It was on the ground (1) That a judgment setting aside a verdict is not interlocutory and (2) If the verdiet of the jury hail been sustained, the defendant had a right to appeal, and then ■ fore if the verdict should be sot aside the plaintiff must have the same right. In the sequel to th« I -I 1 i IMAGE EVALUATION TEST TARGET (MT-3) 1.0 !!■- i 2.5 22 I.I ^ tiS, 12.0 11.25 1.8 U 1111.6 % V] /: Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ■5 If Init M . Ji hJ; 1 i Lambkin v. r'l ■llli Southeast j ; || l|fli Railway Co 1 ; .'1 i ! 1 ■ > ; ■ CosSETTE f. 1 • '1 ! 1 ! Dun. i :' i i' • ' ': 1 : ■ ■ , : 1: ; 1 : f: H 1 ; ' M '■ ! ( M ^ ■ ' ' '!■""*■ II ; [iji i' 1 j ■ ., : i-^ Brown r. ^ ^ |1f ' ' ' : :; Mr' ■■viiAN. .n i ■ ' ;■ ■ ^ i ■( • ■ 9 ! '111. 11-,, ■ I i i . ■ 1 ■ i ■ ^ , •■ ' !: : : ' j Ko KuiNE V. 1 ! , Snadden. u ■ •1 tiiiiL 421. B.N. A. ACT, f^. 101.— TEST OF VALUE. c'lisp their Lonlsliiiis [Sir James Colvile> Sir Biune.s Peacock, Sir Montngue E. Smith, and Sir Robert Collier] reversed the deci- .sion of the Q. B. Quebec. In CossETTE I'. Din, Dee. 9, 1890, 18 S. C. R. 222, it was held that the tirst court's award was the test of appealable amount. Tliere tlie plaintiff claimed $10,000 against amereantileagency for slander. The Snj)erior Court, Montreal, gave judgment for .S2,000 ; an appeal to the Q. B. reduced the damages to 8500. Held there was a right of appeal to tlie Sii[)erior Court. Sir W. Ritchie, C.J., said: " The question before us is not as to the ,S1,5(M), but simply whether the plaintiff lias a right to have the judgment obtained by him in the Supeiior Coint for S2,000 restored. 'I'herefore the (jiiestion we have to determine is; Did the Court of Q. B. do right in inter- fering with the judgment of the Superior Court, which awarded 82,000. And therefore the riglit of the plaintiff to hold his judgment in the Superioi' Court for .S2,0()0 was the (piestion before the Court of Q. B., and is the matter now in controversy before us in this court. ITnder these circiinisUmces the case is clearly a])pealable." See also Prannatli Roy Chowdry v. Ranee Surnomoyee, 7 Dec. 1859, 7 Moo. Ind. App. 553. Interest on flamages was allow- ed to be added to the damages, tiuis raising the appealable value. Thus in New South Wales in- terest on damages is given by the Act 24 Vict. No. 8., therefore ap- peal allowed. Bank of New Sontii Wales V. Ow.ston, 18 Feb. 1879, 4 App. Cas. 270; 48 L. J. P. C. 25. See that case also, that costs cannot be added in estimating the appealable value. In Ko Khine v. Snadden, an Indian api)eal, Feb. 6, 18G8, 2 L. R. P. C. 50, special leave was granted on the ground that al- though the amount involved in this one cas(( was below the iciinisii,. amount, there were othi'p ac- tions, involving the same evidence and concluded by the same jud"- nient, which, all added togctlicr raised the amount far abo\c tlu. ai)[)ealable value. Sec also Bii'ifio Gopal Lall Thakoor v. Teliik Chmider Rai, 7 Moo. Ind. App. 518. But where there arc two di.stinct causes and two scpanitc judgments they cannot be eonsnli- dated for the piu'pose of riiisiiifr the appealable amount. Moofti Mohunimud Ubdoollali v, llaiKKj Mooteehund, 10 Feb. 1H37, 1 Moo. Ind. App. 363. In Brown v. McLAiMiiiAX, Dec. 12, 1870,3 L. R. P. C. IjS; 7 Moo. P. C. N. S. ;506, tlu. amount was below the iip])caliili||. value, but leave was given. Sir J. Colvile .said : " Their Loi'dsLips are disposed to grant leave to ap- peal, on the ground that it is ;i <]uestion on the constructidii of an Act, and one of general int('ii'>t in South Australia. T» being niidci- slood that the appeal is to lie con- fined to the merits of the dcci.sion, namely, whether tlu- South Aih- traliau Fencing Act a|ipiics to fences erected liy holders of lca>c« under the Crown for pastoral pur- poses." Also where the question is of gen»'ral Importance to insuraiKr comi»anies, leave; has been allowed. Sun Fire Office v. Hart, Feli. 1(1, 1889, 14 App. Cas. 98, i). lUo; 58 L. J. P. C. 69. In Santacana v. AifiiKvoi,. M;iv 8, 1830, 1 Knapp, 269, an ap jteal from Gibraltar, Leach, Jl.l!,, .said: "'J'his Board never Iicind of an apj)eal l)eing instituted on tlu' ground that the witnesses had k'eii discredited. The covirt lielow woif aware of the character of tbcsc witnesses ; and Ix'sides the know- ledge of their character, bud tlif advantage of seeing their di'- meanour and behaviour, of wbidi Ave on written e\idenee have m IJ.N.A. ACT, s. 101,— JUDGE OF EVIDENCE. 125 V('(llllSllc tlicr lie- cvidciiee, 111'' jiitlj,'- togi'tluT, ibovc tlic 'so Bii'inci v. 'I'eliik lul. Aii|). ' iiri' two si'iKiriitc H' fimsoli- Of I'ilisillir MoMfti ('. Ikliod 37, 1 Moo. j,ow,T of juilgiiig. We feel it our (lutv, therefore, to decide this ease oi; tiie general principle, that no jipjicil will lie from the judgment of ii court below on the; ground thiit flie coinr discredited the wit- ness's produced to them by either uiuty." But in Canepa v. Larios, Feb" 17, 1834, 2 Knapp, 270, Lord Wvnford .said the rule in Santacinia v. Ardevol "should be soniewliat qualitied, or it would prevent us from protecting colo- nists iigiiinst the effect of local prcjudircs." . . . . "In all cases ill which the court sees no cogent reason for .saying that the court in wlio.se presence the evidence was given have taken a wrong view of it, the safest cour,s(! is to adhere to its determination. Kilt a case may be so unsatisfactory as to require further explanation ; or so improbable as to be manifestly Minvortliy of credit; or may ex- liibit circumstances which .should (.'iinvince any impartial or judicious mind of its truth. In .such cases the Court of Ai)peal should not be concludeil by the judgment of the couit below, but exercise its power of sending a case back for further iii([iiiry, with such directions as it may think [iroper to give." This would be the course followed in the House of Lords. Or it might Ix' sent back to take an account. Even 'u a new |ioint of law was raised in the .Indii'ial Committee, say depend- ing on French law anil from Quebec, their Lordships would mo.st laotiably not allow the point to be aigiiod, or, if important, would remit thu case to Quebec for disposal of the point. In the House of Lords, if a point of Scotch or Irish law was not raised or argued in a case onai)|i(>al from Ireland or Scotland, the House would not send the case back, as their Lordships sit as Hu English, Scotch, and Irish Ap- pellate Court, and are supposed to lie acquainted with these laws." Cooper c. Cooper, 13 App. Cas. 8H. Ill a matter of fact, unless there is some ; . wrong, -^""kvoi,. even thoujufli doubts i... y be enter- tained by , >eir Lordshi|)s of its correctness, tl e Judicial Committee, under its .standing custom, will probably not entertain the appeal. See post, p. 429. In BiCHEB V. VoYKU, 13L.C. J. Ricmkh v. 213; 15 L. C. J. 122; in P. C. ^'"'''>"- May 2, 1874, 5 L. R. P. C. 4U1 ; 30 L. T. 506; 22 W. R. 849, the J-dicial Committee allowed leave, to appeal where the action was to recover a sum of 32,000, one ques- tion there being the true nature of the receipt given by the bank, in fact, whether it was a negotiable, instrument or not. That ca.se al.so decided that the notes of a judge who .simply concurs, and which are not communicated to both sides, will not be looked at by their Lordships of the Privy Council. In Abbotts r. Macuonald, AnBoiTs v. 24 Oct. 1877, 21 L. C. J. 311, ''^I'^t»o^A!.i.. Johnson, Belanger, and Bain- viHe, JJ., lield that where the judgment of the Superior Court had been confirmed in review against the defentlant, tb i party inscribing, the defendant, al- though precluded by the local Act from appealing direct to the Court of Queen's Bench, could, under the Dominion Act 38 Vict, c. 11. s. 17, appeal to the Supreme Court of the Dominion. .SVe 54 & 55 Vict. (Dom.) c. 25. .s. 3, s.-s. 3, ante, p. 405. Thecourt below granting or refus- ing leave to appeal cannot bind the Privy Council, and therefore where the cotut below refuses li'ave, thinking it ha,s no power to grant leave, the Judicial Committee will grant leave, if the amount involved is large or the question is one of imporUmce. Ong Cheng Neo v. Yeap Cheah Neo, Jan. 31, 1874, 5 L. R. P. C. 89. Ill Boston v. LELiivuE, the Boston v. upiiellaut sought to obtain a decision I'*'''^vbe, ^ l.i ! i i ! 12G B.N.A. ACT, s. 101.— ARGUMENT ON LEAVi:. Boston v. Lelievrk. > li-s j ! i.'j ' i ill I \\ I 1 .SlIENTIIN ('. Smith. that the Q. B., Quebec, were bound to entert^iin au appeal in a case of certiorari from the order made by the Superior Court, dated 27 June 1862. Cap. 77. H. 23; e. 88. s. 17, and c. 89. s. (5, C. S. L. C. 1861, providing for general appeals, ex- cepted ca.ses of certiorari. Lord Westbury, Jan. 25, 1870, 3 L. R. P. C. 157; 18 W. 11. 408 [Sir W. Colvile and Sir Joseph Napier being also [)resent], saiil : " Their Lordships are not insensible to the importance of this ease. At the same time they feel they would not act rightly if they were to over- rule the uncuimous jtidgment of the court below, upon a question of this nature, unless they weiepeifect- ly satisfied that the judges Iiad com- mitted an error in refusing the ex- ercise of their appeliat*^ juris(hction. " The (piestion is governed en- tirely by the language of the co- lonial statutes. The Court of Ap- pesU in Lower Canada is the creation of statute, and the subjects upon which appeal lies to that court are defined with reasonable clearness." Argument where Special Leave. — Argument on a case allowed by special leave because of a special point of law ought, if possible, to be confined to the ([uestion of general importance, and ought not to delve into the question of fact. See Cori)oration of St. John v. Central Vermont Kail, 14 S. C. K. 288; in P. C. 25 July 1889, 14 App. Cas. 590; 59 L. J. P. C. 15 ; anil post. Appeal on Conditions. Shenton v. Smith, Feb. 2, 1894, [1895] A. C. 229. In this case the amount was £200, and therefore under the a[)pealable value, being from the S. C. Western Australia. On account of the si)ecial nature of the question si>ecial leave was granted ; but as the Judicial Com- mittee considered it hard on the individual suitor to Lear the cost-s of an appeal admitted (;ii siuib ground, the upi)ellant was put under the obligation to jiav tlu' costs in any event. The question was whether Dr. Smith could 1)0 dismissed by the Governor of AVcs- teru Australia, whom the apiu'llimt represented at the trial. l)i'. Smith took the duty as nieili«il otticei- of health of another doclur, Dr. Rogers, [on lea\e of absence, and was gazetted as such. Latoi' the Governor declined to make tlio appointment permanent. lihune was attached to the respondent al an inquest, and an order was passed by the Governor that the respon- dent .should be informed that his tenure of office would cease at the close of the year. All the papers were sent to the Secretary of State, who declined to interfere. In 188'J Ur. Smith presented a petition of right. After an abortive trial, be- fore Stone, J., and n jury, inwhieh Stone, J., thought the respondent ought to have been nonsuited, another trial was held before On- slow, C. J., and a jury. The latter answered the question, whether the, repondent was led to believe lie would hold the office during good behaviour so long as it existed,in the affirmative. They went on to find that the Government had not given reasonable notice and had no reason- able cause to dismiss him, and they assessed the damage at £200. The appellant moved for a new trial or to have judgment entered up in his favour. That motion was refused, subject to the reservation jf a question to the full court; Whether the respondent, though appointed temporarily, was still entitled to be treated in accordance with the procedure laid down in the Council Office Regulations with regard to the dismissid of public servants? It was agreed that such procedure was not fol- lowed. Before the full court, Onslow, C.J., took a view adverse to the apijellant and Stone, J., the only other judge in his favour, so the judgment stood. Lord Hobhouse delivered the ! i B.N.A. ACT, H. 101.— REMEDIKS EXHAUSTED. t27 jiidgim'nt of tlie Board [there being also present Lortl Hersehell, L.C., Ijonl AViitson, Lord Mac- iHigbteii, and Lord Shand.] After stating that in the opinion of their Lordships the respondent (lid not occnpy so strong a posi- tion as Dr. Rogers, bnt that they did not dwell upon that, be- c'linse they preferred to rest their judgment on a broader ground, lie saiil: "It has been argued at the bar that a eolonial Govern- nieut stands on a different footing from the Crown in England, with respect to obligations towards per- sons with whom it has dealings. Tlieir Lordships do not go into the cases eite i : J' : n 1 m ill fal /» re SiBNARAiN awn nled in case the appwil be dis- inisspd. See also Monirain Koiita v. KeiTv KolitHiiv, 13 Miiicli 1875, Wheeler's P. C". Law HI. Sjiecial leave to appeal was allowed, on con- dition of j.i)p;'l]ant payin<; respon- dent eosts in any event. And INIain and others v. Stark, 15 ISIiiy 1890, Wheeler's P. C. Law, p. 721 ; 15 App. Cas. p. 390 ; r)9 L. J. P. C. (58. The Qneen's Order, 17 Nov. 1888, allowed the appeal " npon eondition thiitthey (the ])etitioners) nndertwke to pay all the "osts of the res|)ondents inenrred in the .said appeal in any event, liofh in tlu; eolony of Victoria and in En^jjliind, to he taxeil as between solicitor and client." Tn FouGETi'. OsTiCNV, 18 Nov. 1893, the Jndicial Committee directed that the petitioner for leave to appeal shonld midertake " to pay the eosts of f;ueh apjjcal on both sides in any event, if i shall a])|tear advisable to the Lords of the Committee so to order when the said appeal comes on for hearing." (.TOr.DKlN'i v. D'HOCHELAGA, 5 App. Cas., 371 82, Avas an a])pHcation by the bank to rescind an onler of the (^. B. Qnebec, 24 .Inne 1879, giving leave, nnder art. 1178 of the Code of Civil Procedure, to the appellant to api)eal to the Jiulicial Committee against a writ of capias ad respon- dendum issued against him, under arts. 798 and 801. Sir J. Col vile, Sir B. Peacock, Sir M. E. Smith, and Sir K. Collier, held it was not com- petent to the Court of (J. B. Quebec to grant leave to appeal to Her Majesty, the writ capias adrespon- flendum not being a final judgment. Leave refjised. But see next case. The following case illustrates re fu.sal of leave on a question of fact in a question of the validity of u writ of capias ; and the granting of special leave where there is no Goi.DHINfi V. La H.vn()uk D'lIucaEr.AdA. La Banquk Feb. V, 1880, 49 L. J. P. C Mp[)eal of right nnder the I'dije of Civil Procedure, art. 1178, and where the question is a difficult point of law or creates a conllid between the two codes. INIoLSON V. Carter was an iip. peal fiom an order of Q. B., Qudnc, 22 June 1880, 25 L. C. J. G.J [Dorion, C..T., Ramsay, Tcssicr, J.T., Cross and Monk, JJ., dis- senting], which affirmed an order of Pa])ineau, J., in the Su|». Ct. I( appears that on 17 April 1877, Carter obtained a judgment against Molson, by which tlie latter was ordered to pay costs, and about 332,000. On 2 June 1877, Carl.T prayed the Sup. Ct. for a writ of capias ad rcspondendnm against Molson. Mol.^ion was arrested, and on bail released from custody. Mol- son commenced proceedings undci' articles 819, 823, of the Code of Procedure to set aside the writ of capias, and the above judgment was given. Molson then petitioned the judicial Committee to grant special leave to appeal. On 27 Nov. 1880, the Judicial Committee. Sir J. Colvile, Sir B. Peacock, Sir M. E. Smith, and Sir II. Collier, refused leave to appeal. Sii' 11. Colvile, delivering judgment, said (25 L. C. J. p. 99) : "It is obvious their Lordshijis wonid not, according to their usual practice, nor could they with [ii'o- priety, grant special Icjive to \\\)\v\\\ upon a question ul this kind, un- less they saw clearly that there bad been some miscarriage in [)oint of law or very gross miscarriage in the two cnnrl;;, whose concurrent judgments are nnder appeid, on the matters of fact. Now, with- out going into the complicated proceedings that have been com- mented on in this case, it is suUi- cient to state that the judguieuts of the court below may be taken to have proceeded almost exclu- sively uj)on the act of the petitioner, in altering the deposit account of a certain sum of money in the Me- chanics' Bank, and the facts whieli B.^.A. ACT, s. 101— MATTERS OF FACT. 429 1,m1 to tliiit wciv simply tlii'sc : tlio dc- teiKiiiut borrowed t'roui the plaintiff a Miui of about 332,000 ostensibly oil the security of certuiu property. Hi- iMiitl tbat sum into this bank in his own name, with a sort of special mark. As found in July 1874, he altered the heading of that deposit account so as to nmke it ti|)|ii>ar that the money was hi.; wile's. The bank beeimo insol- vent a month or two later, but just when it was on the eve of insol- vency he drew out the 832,000 npoii a receipt .signed by him for iind as agent of his wife ; and it is apou that transaction that the ennits below have principally pro- ceeded." . . " There was abun- dant evidence from which Papi- neau, .)., and the majority of the indges of the Appellate Court nii'dit eoine to the conclusion that the transiction was really one of tile nature described by Monk, J., and tliat it was a case of actual sceivtion or the making away of limpei'ty of the (hditor within the nieiiningcif tlie Code of Procedure." Molsoii r. Carter e me again tu the Privy Council. On H July 1880, Torrance, J., Sup. Ct., de- elmed the cupias take out against Molsou good, and ordered him to pay the judgment debt ,";f 17 July 1877, with costs and intere.st. On the 3rd Sept. 18H0, Carter filed a petition in the Sup. Ct. reciting the above judgment, and alleging it was wholly unsatisfied, and al- leging that Molson had neglected to lilt! a statement within 30 days. C.C.P.nrt.766; c. 87.C. S.L.'C. s. 12, sub-sec. 2. On 17 Sept. 1880, Torrance, J., ordered that Molson lie iinprismied in the common gaol of the di.striet for the space of one year. From this judgment MoLson iip|K'aled to the Q. B. Quebec. On C March 1882, 26 L. C. J. 15!) [Dorion, C.J., Monk and Tessier, JJ., Eauisay and Baby, J J. dissent- ing], reversing Sup. Ct., held that inusiuueh as the Code of Civil Pro- oediire failed to attach any penalty whatever for not filling up the statement required by art. 7G6, the Moi.son v. l)enalty provided by" art. 2,27i of Cabtkh. the Civil Code [a year's imprison- ment], and by e. 87. of C. S. of L C. .s. 12, sub-s(!e. 2, could not be enforct'd. In the Privy Council, 10 March 1883, 8 App. "Cas. 530, on it being urged no ap[)eal was given to the Privy Coiincil by art. 1,178 of the Code for Lower C'anada [see Gold- ri.ring the judgment aflarming the decision of the court below, .said (p. 535) : — "The question, which their Lord- ships have foinitl to be one of con- siderable difficulty, depends on the true construction of the two codes of Lower Canada, the Civil Code, more particularly art. 2,274 and arts. 2,(513 and 2^614, and the Code of Civil Procedure, more parti- cuhirly art. 76G and those follow- ing it, and art. I,3ti0. There were careful and elaborate provisions for framing the two codes in question; but, notwithstanding all the pre- cautions taken, there may be, and in fact in the present ca.se there are, doubts as to the meaning of the language employed. And the !',! ^■'1 I '■ 1-30 B.N'.A. ACT, 8. 101.— CODES CLASHING. 1 i Moi,soN r. Cabteh. ■ ' " M 111 MCSSOOillK Bank v. Raynoh. :!.|t1 ■SlBNARIAK GlIOSF. !'. Hui,- LoniiUB Doss. Wilson v. Callendrr.i r l|;i' 'I Civil Code of Lower Ciinndn, art. 12, is : ' That when a law is (loui)t- fiil or auibiguons it is to be inter- preted so as to fnlfil tbe intention of the legislature, and to obtain the object for which it was passed.' It is, therefore, material to enquire how and why the two codes were enacted, so as to ascertain what was the intention of the legislature and what the object for which they were enacted." Carter r. Molson came a third time on another point to the P. C, July 1, 1885, 10 App. Cas. GG4. Misstatements or concealments of facts, and objections thereto. In MussooRiE Bank v. Eayxor, an appeal from India, March 21, 1882, 7 App. Cas. 321 ; 51 L. J. P. C. 72 ; 46 L. T. 033, the petition for special leave con- tained misstatements of fact affect- ing the third ground relied on l)y the petitioner. Sir Arthur Hob- house, delivering judgment, said : — " Their Lordships desire it to be distinctly understood that an Order in Council granting leave to appeal is liable at any time to be rescinded with co.sts, if it appear that the peti- tion upon which the order was grant- ed contains any misstatement, or any concealment of facts which ought to be disclosed." Then his Lord- ship con.sidered (1) that there was no intention to mislead; and (2) he said the quesvion then was, fol- lowing Lord Kingsdown in Mohun Lali ftpookul V. Berbee Doss, 1861, 8 Moo. Ind. App. p. 195, whether the order in questioii was one which they might not hav^' been induced to make if the facts aad been fully and truly stated," and he came to the opinion that no oifferent con- clusion would or coula have been arrived at if the strictebt accuracy had been observed. But in re- versing the court below thi ir Lord- ships, be(«iuse of the misstivtement, gave no costs of the appeal, fol- lowing Tlam Sabuk Bose v. Mon- mohini Possee, 1874, 2 L. B.. Ind. App. 71. In the last case objection Avas only taken during the argunipnt to the misstatement. Sir M. E, Smith .said : " In their Lonlslijps' opinion an objection of this jjind ought to be taken by the rospon- dents as early as the ninttor is brought to their notice, for tlio plain reason that if the lea\(' to appeal is on that ground rescindci] no further costs are incurred, mi(l it is wrong to leave the objoction until the hearing of the appeal, when the record has been sent from India, and when all the costs attending the hearing have been iu. curred." There their Lordships punished both parties, for Sir M. E, Smith .said • " If the objection had been made by a preliminary motion their Lordships have little doulit that the motion would have Iwn successful," but as it had not, and the arguments had been heard for the appellant, their Lordships wont on with the appeal, rcverseil it, bnt gave the a[)pellant no costs of the appeal. SiBNARiAx Ghose v. Hui.i.on- HUB Doss, 30 Nov. 1854, 9 Moo. P. C. Cas. 354. There the petition had stated that certain exceptions taken iu the court below to the retiu'u made by the Partition Commissioners had been overruled, as, of course, in consequence of the absence of the petititioner's counsel, whereas the fact was the counsel of hotli sides were present, and the judges in India certified the petitioner's counsel was present and declined to argue the exceptions. Turner, L. J., in dismissing the appeal witli costs, said : " We consider it a matter of the utmost importance that parties w!io come here for an indulgence upon an ex parte appli- cation should take care and speak the truth." Wilson v. Callendeb, 20 July 1855, 9 Moo. P. C. 100, wn.s a similar case. There the pe- titioner stated that the accounts n.X.A. ACT, s. 101— MISSTATEMENTS. 131 and sof'iiritios in qupstion were of tlie viiliie of £.'500, tho sum limited livthe royal iustru'-tions rpfrnlntiiig iijipeiiis from tiie Island of Barbii- (loos. On this allp<^tion spocial loavclind Itnon granted. But wIkmi til appeal came on it appeared that tlip scouritie.s, &c,, had been proved lit tiio trial to be not of the value (if a single shilling. Case stopped anil (lisuiissed with eo.sts. In Bl^LKELEY V. ScuTZ, Feb. 28, 1870, 3 L. R. P C. 196, it appeared that special leave to appeal had been gi\en on a mis- statement of fact. The petitions, slated the petitioner, had inadvert- ently omitted to apply to the S. C for leave to appeal, whereas it ap- jN-ared tiiat he had applied and had obtained leave, but tho ai)peal had not lieen duly prosecuted. Their Lonlsiiips refused to hear the appeal. On the other hand, the respon- dent ought to petition the Privy Council as .soon as he has know- ledge that a petition for special leave has been improperly granted. He ought not to wait until the hearing. r stating that in consequence of I.I Si 'I! ill i I MAvon OK MONTRKAI. ANI> Sl"RIN(il.K I'. UllOWN. 1 H ; if 'iili 1 .1 1 I ■ i im AlJ.AN V, Pratt. i^iil-: 432 IVX.A. ACT, H. 101— MEASTT-RE OF VALT'K. the rapid cxtciisioii ol' llic <'ity <»t' Moiitrotil if becnino nccossmy to lay out streets and iimkc otliiT arranpcnionts for the piiliHc <'(tn- vcnit'iu'o, <:;()('s on to '^Wc vai'ions ways of inaking the improvcincnts, and directs 111, t tliey ai'e to be paid out of the funds of tlie city. If the city cannot afj;reo with the owner as to price, application is to he niaile lo the Superior Court, or n jud^e of that court, in chamber, to .select three persons to act as coni- nn'ssioners to fix the pi'ice. These coinnii.'.siouers coidd examine wit- nesses, call for deeds, &c. Then in sul)-sec. !), if otm or more of -ho conniiissionei's shall fail in his duties and .shall not fulfil them in a faithful, diligent, and impartial manner, it shall he lawful to ap[»ly to the Supei'ior Court to stay pro- ceedinjis, Sn'. Then it goes on, that as soon ns the conunissioners shall ha\(' conii)leled their valu- ation, the corporation are to give notice for any parties to come in and ol)j<'ct to the valuation. Then the corporation were to submit to the court their report, containing the a|)praisenient of the commis- sioners, for the purpost> of being confirmed. Allan i'. Pratt, in Sup. Ct., Tori'ance, J., Dec. ,S0, 1884, main- taining I'ratt's action for damages for iH'rsonal injtu'ies, in which he was awarded .SI, 100 against Allan, in whose employ he was. Pratt claimed 85,000 damages. Allan appealed. Dorion, C..T., Tessier Cross, and Babv, JJ., 18 March 1887, 3 Mon. Q. B. 7, held they •would not modify the amount measured by the discretion of a competent tribunal. Cross, T., gave these facts. Two squads of men were employed in discharging the steamer " Canadian," of the Allan Line. The squad Pratt was in had been dismis.sed for lunch, the other was removing a heavy iron girder mounted on a low truck. The girder was long and about 1^ tons, and it was ditlicult to move it owing to the soft glii:i:i I. 'I'l,,, foreman of this sfpiad callnl („|. \ohniteers from the dispcisjni' gang; the respondent answcmf, and jdaced himself to tiiilnnec the girder. The truck stnick the rails of the G. T. Rnilwav and the gii'dcr rolled ou I'luit |)erman(!nlly ciippliug him. Tlii' Q. B. gave leave to appeal -Ji) March 1887,;} Mon. Q H. :\2-2' in 1». C. .Tnlv 2(i, 188S, i;{ App. ('„. 780; 57L.J. p. C. 104;.5i) L. T «74; 15 Q. L. II. 18. Eiul S.l- borne deli\ered judgment, iit wliicli were also present Lords Wiitsoa and Tlobhouse and Sir Hariic-i J'eaeock : — " Their Lordships ai'e of opinldii that the appeal is inconipetcnt, The proper mea.sure of vnliic lor determining the question of the right of appeal is, in their jndj;- ment, the amount which h.is lucn recovered by th«> plaintiff in tlio action and against which the !i|iiii;il could be brought. Their bonl- ships, even if they were not IkmiikI by it, would agree in principle willi the ride laid down in tin' jiidf;- nu'iit of this tribunal deli\ero(l hv Lord Chelmsford in the case of Jlnc- farlane r. Leclairi' CIS ]\Ioo. I*. (', 181 ; 10 W. R. 32l'; 8 Jur. \. .S, 2()7, ante, p. 420), that is, that tlir judgment is to be looked at as it affects the interests of the party who is prejtidiced by it, and who seeks to relieve himself from it by a[)i)oal, If there is to be a limit of value at all, that seems e\idently the riglit principle on which to measure it. The person against whom the judgment is passed has either lost what he demanded as plaintiff or has been adjudged to pay some- thing or to do something as de- fendant. It may be that the value to the defendant of an adverse judgment is greater than the value laid by the plaintiff in his claim. If so, which was thc! case in Macfarlane v. Ledaire, it would Ih' very unjust that he should l.e bound, not by the value to hiniself. but by the value originally assigned B.N. A. ACT, 8. 101.— VALUE OF APPEAL. 433 to the suliject-nmtter of the action by his oniioncnt. The prcsinit is the c'ljiiviTso case. A man makes a chiini for miu-h larger dainaf^es tiiaii iu' is likely to recover. The iiijiirv ti) tiie defendant, if he is wic>iij;ly adjud;;ed to [)ay damages, is nifiisui'cil liy the amount of dam- af;<'s wliieh he is adjudged to j)ay. Tiiat is not iu the least eidianeed to him by the fact that some greater 811I1I laid been claimed on the other side. " Therefore in principle their Lordships think the ca.se is governed by Maelailane r. Leelaire upon the q lestion of value, and they do not think it is at all affected by the cir- eiiiiistaiice that the court below did not give effect to that objection, but gave leave to appeal. It has been decided in former cases that leave so gi\en does not make the thing right, if it ought not to have been done. "Then it is submitted by the learned eoniisel that their Lordships onght to give an opportunity for an aii[)lieation to be made for speeial leave to appeal on the <;ronnd that not only questions of tiiet, bat also, as bearing on those facts, questions of law, and par- tiuuiarly a (piestion of law which may be important, upon article Klot " [master's liability for fault of fellow servant] " of the Civil Code, are involved in the case. Of course their Lordships wdl not at present go into the merits of the case at all, and they will assume that there may be such a question and that It may be important ; but the present question is, whether, this "Ppeal being incompetent, they oiijiht to give, under the circum- stances of the case, an opportunity of asking for special leave to ap- peal. No doubt there may be cases in which the importance of the general question of law in- volved may induce their Lordships '0 give leave to appeal, though the value of the matter in dispute is not suflicient ; but their Lordships must be governed in the exercise S 2340. of that di.screfion by a consider- Ar.r.Aii t. ation of all the circumstances of P***"' each particular case. In this case they .see from the manner in which it comes before them that tiiis general (piestion of law, if allowed to be argued on appeal, would be argued at the expense, if he did appear and go to any expense, of a man evidently too poor to under- take it. And, .secondly, they see that thi^re would bo no probability whatever, if they permitted such an appeal, of their Lordships having the assistance which they must necessarily desire, whenever an im- portant question as to ihe con- struction of an article of the Civil Code, having so large a bearing as this is suggested to have, may re- quire to l)e considered and de- termined by them. If in any future case a similar question .should arise, and should be competently brought before their Lordships, no doubt it will be decided upon its merits and not held to be linally concluded by the judgment given iu this particular action. Their Lordships do not think it would be at all a Siitisfaetory thing to allow an appeal not otherwise competent for the sake of raising in those circimistances and in that manner a question of the importance which this question is said to have. Therefore the appeal will be dis- missed, but, as nobody has ap- peared to ojjpose it, there will lie no costs. [Pratt did not appear]. In BoswELL V. KiLBOBN in P. C. nosWEI.L V, 1 Feb. 185!), 12 Moo. P. C. 4G7, Kilboun. an action had been brought against Boswell for £600 currency for au alleged breach of contract. The Sup. Ct. Quebec dismissed the action, but the Q. B. Quebec re- versed that judgment and awarded the sum claimed. Boswell asked for leave to appeal, but the Q. B. Que- bec refused it, the £600 currency being below the appealable amount, £500. The Judicial Committee granted leave to appeal because, by the law of Canada (22 Vict. c. 85 .), £ E '\\ ,,x 431 B.I^.A. ACT, s. 101.— AMOUNT DEMANDED. HoSWRI.I. V. KlI.UUllN. I ii !i: I , ■M Joyce v. Hart. D'OnLiAr V. D'OULIAC. Mi mmWi- ,;! n !'! interest, nm with tlio, jiul;;m('iit, which wouM liiiiifi llicsultjfi'l iimt- ter within the iippctihilih' niiioiiiit ; mill, M'ccdiilly, l)i'caiiw iiiipor- tmit (incstioiiM of iiu'rcniililu law appwii'C'd to he, iiivolxi'd, and nn- otlit'P action WHS ul)out to Ik- raised on the sunu! (picstion. Hut their Lordships iri'iintcd tlic application on the terms tliat £100 was iodjji'd in the I'rivy ("onncil as sccnrity for costH. Sec Qiit'cn's Order, 2 Felt. 1H")!>. Tht; result was, 5 March lS(i2, that a new triid wa.s orderer (iiicstioii to, or rv- spccliiif.', proiicrty or any civil rif lit ninnMiiliiif; to, or of, tlu" value of i,'l,(H)il sicrlinf^.' Snrcly tlii' valid- ilvdt'tlii' iiiarriaj^i', lillc to (lower, oi- ii(|iiistion of Icffilinuu-y, are all civil rii'litH. And went thero no otlief rcnicilv it would IxMiuite inon.strouH til sav, thill you niii.;lit apjjeal for £1,(HH), and not for a case where ii';.'iliiimcy in involved. But the cliai'tii', we think, has omitted cases of (livorce, and the ('our l)'A|)|)fl \vas,tlu'rer(>re,wi'on>i;in<;rantin;!;tlie Hlipcai. TiuTe should have been a ,s|it'cial a|i|iii('ation hero for leave to iilipcal, under the <:;eneral powers ivsirvcd by lliu charter to llu^ Cniwn, which may, if it think lit, i;niiit leave to appeal. Their Lord- sliilis will exercise their discretion ill so advising Her Majesty if a proper case is hroufiht before them, but this pctitioM must be granted, and tlie .ipjn i! granted by the I'oiu' D'Appel dismissed." Una sul)se(pient date, 13 June, till' a[ip('l!iiut presented a petition for special leave to appeal, whicli WHS allowed, but on terms of his loi|i;iii<; hi.s ca.se on or before the :'"th I luic and paying the costs of the (lay, the appeal to stand dis- missed if the case was not lodged wiiliiu the time limited without fiirtlRT application to the court. It iipi)earod that the decree of the Cour D'Appel had been pronounced on 16 Sept. 1811, and the appellant liail delayed in his appeal. Even- tually the appeal became dismissed. So also in an appeal from the Island of Mauritius, Shire v. Shire [present, the Lord President, Lord l^rongham, Dr. Lushington, and Pimbei'tou Leigh], 12 Feb. 1815, 5 Moo. P. C. 81. The (piestion «rose in an appeal by the husband trom a judgment of the Court of Appeal for the Island of Mauritius, wlmh granted the wife a decree of ri'stitution of conjugal rights with alimony. When the appeal was about to be Iienrd, tlie objection Simub e. Sumn. was made thai I he ("hiirterof justice of the island did not provide lor appeals in matrimonial cases. Loid ISrougham said: " Every marriage involves the liabilities insisted on by the appellant, the status of the issue of the marriage; and thai is a right which may be said to ' ,! beyond pecuniaiy value. Tln^ point was very cai'efullv considered in D'Orliae i\ D'Orliac, Mav 1811, 1 Moo. P. C. a71, anil though there was no (diarler right of appeal in matrimonial causes, we reconuuended the ('rown to grant leave to ajipeal, on a special application for that pur- pose. . . . Their LonNhiiis will re- commend the allowance ,if nil api)eal, \\w case to stand o^ r for the ai)i)ellant to present u petition for such purpose." Leave where Ch' len art) concernea. In Ca.mili.i:ui v. Flkim, "lO.'ine rAMii.i.Eiii v. 1815, 5 Moo. P. C. H;1, special Fleui'. leave to appeal was allowed from a decision of the Court of St lond Instance of Malta, from which court, by order in council f)f 18 Dee. 1831, an appeal is allowed where the matter of issue involves any civil right amounting to the value of £1,000. "In any judg- ment, decree, order, or sentence for or in respect of any sum or matter at issue, above the amount or value of £1,000 sterling, or in case such judgment, decree, order, or sentence shall involve, directly or indirectly, any claim, dcman(i, or question to or respecting pro- perty, or any civil rights amount- iug to or of the value of £1,000 sterling." The Court of Second Instance had affirmed the decision of the Court of First Instauce, ordering the petitioner, the mother of two children by her iiist mar- riage, to deliver them up to the custody of their giandniother. It appeared that the children's father and the mother, the petitioner, had been Boman Catholics, and that m E E 2 ^1 I! 11 i 436 B.N.A. ACT, s. 101.— STAYING EXECUTION. ! M ■ f ^ 1 •' Camii.leri v. I'LKUI, III re Victoria Ski.n'nkb. f I ill! ClIUTRAPUT SlNT.ll DdlllKiA i'. DwAliKANATII Stack v. GiiU'ir'n. iJiiUi ill the niohtor, after the father's death, hail beeoiue a Protest aiit aud had married a Koniau Catholie priest who had joined the com- ui union of the Protestant Chureh. Pending the hearing of an Appeal, the Judicial Committee may make an interim order. //* re Victoria Skinnek, Dee. 5, 1870, 3 L. R. P. C. 451 [present, Sir R. Vliilliniore, James, and Mellijh, L.JJ.], the Judieial Com- mittee, lijiving jfiven spieial leave to api)eal, gave also liberty, i)endiiig the luaring, for the mother of an iul'ant, the eustoily of whieh was the question iti issue, to apply to the llijuh Court to have aeecss at suitable times to her daugliter. In fa;.'t, the Board repeatedly make in- terim orders of revivor, &{.'. ; and see Maharani Iiidar Kunwar r. Maharani .laipal Kumvar, poxf, p. 426, L. 11. 15, Iiul. App. Cas. 127. In CnuTK.\puT Singh Doorga V. DwAitKAXATii GiiosE, July 28, 1874, 21 L. R. Ind. App. 170: I. L. II. 22 Villa. 1, a stay of exe- cution liad been refu.sed by the High Court, Hengid, the two judges tlitt'ering in opinion. The Board of the JudieiaK^onmiittee [Lord Wat- ton, Lord Mai'uaghteu, Lord Mor- ris, and Sir R. Coueh] held that OS the two judges in the High Court had differed in opinion, the discretion d' (he Court under see. GU8, sub-see. (c.) of tlie C. of C. P. (Act xiv. of 1882) had not been ex- ercised, and granted a st^iy of execu- tion. And it seems their Lordships were also of opinion that in such a case there need not be an appli- cation for special huive to appeal from the order complained of as well as for stay of execution ; that is, tliut tf there is a right of appeal, or leave to appeal, the petition need only ask for stay of execu- tion. The facts were these : The action was for a certjiia chur of laud. The whole of the land was awarded to the plaintiff. On 5 July 1892 the High Court allowed m ai)i)eal under sec. G03, C. of C P. An order was then made in the Court of First Instance for exoeu- tion, whereon the defendant up- plied to the High Court under sec. G()8, C. of C. P. for an onier staying execution on the grouud that the land might detei ioratc, landmarks might be removed, ami mesne profits be dithcuh. to get back. This was refused, 27 Apiil 1894, the judges differing, lleuee the application. This latter c:ise ai)pears rather to alter the pnietice. i>ec Wheeler's 1'. C. Law, p. 41(i. Where property is traiisfcPRd to one claimant pending tiie heiuing of the appeal to the Judicial Com- mittee, and the property ni ly lie wasted or become dilap. dated, and si'curity has not been taken, tlie Jiu''cial Committee will order the court b(dow to take propir sci'ii- I'ity. In re Rajah Vassuivddy Lutchmeputty Naidoo, July o, L'-o2, 5 Moo. Ind. App. Cas.'.'JOl). In Stage v. Griffith, Feb. (<, 18()9, G Moo. P. C. N. S. 18, fmm S. C. St. Helena, the judge di- rected the jury in a case of alleged libel tliat they had to lind wlidhir a certain letter was a privileged communication. On the prtiliun for special have, the iipjieidaMi' value being under £oOi>, Lonl Cairns said [there being also [hv- sent Sir James Colvile, ISir E. Vaiighan Williams, and 8ir 1{. T. Kiiidersley] : " A ipr ^tioii of con- siderable importance arises on this application, namely, whethera litter written by the petitioner to the Colonial Secretary was a privilegid document. That point seems tu have been utterly overlooked liy the judge, who left the whole ea^^e Vj the jury. Their Lordsliii;;: are ol' opinion that leave to appeal oiiglil to be granted that this qiiesliou may bepropiTly deternuned. Leave will, hosvever, be granted upon special ti'rm.s, namely, that the pe- titioner give the usual security tor the respondent's costs of appeal, B.X.A. ACT, s. 101.— PROTECTING SUB.J.-MATTER. 437 nnd also deposit with the registrar the amount of the (Inmiitjes awarded ; the pliiintilT (ri'spoiideiit) to enter into an im{lei't4il\a KiNWAa ''. Mahahani jAWAI.IvLNWAn. JlrssrxrAT jARIUTOOri liCTOOl, I'. JIl'SSlMAT IIOSKIVEB IJEUl'M. !! i ! I if! Hi;" [ill ■f i 438 i:)' i' ! TfARAOUNTY LuTCItMEEDA- VAMAII I'. A'kN- OAHA NaIDOO. MONTAIGNAC r, SUITTA. B.N. A. ACT, 8. 101.— QUESTION OF FACT. JIaiiaham Indau Kunwar V. Mahatiani JaipalKunwah. Tareest Churn HoNNEr. JEB V. MAIT- LAND. moneys paid in. The Order in Council giving leave to appeal, dated 26 Nov. 1880, was :" That leave ought to lie granted to the petitioner to enter and prosecute her said apjieal from the order of the Judicial Couunissioner of Oudh of the 22 June last, and their Lordships do further report to Her Majesty that it appears to be the reasonable course that the plainlift' (respondent) should not, pending the principal appeal, be put into the possession of the large sums in dispute, and tliat she should not receive more tlian the annuity of 25,000 rupees which was decreed tc her by the iirst court; and with this intimation of advice their Lordships reconnnend that the petitioner be at liberty to apply to the pro|)er court in India for the due security of all money paid into the Treasury in obedience to t!ie decree of the Judicial Com- missioner of Oudh." [ Times news- paper, 1886, Nov. lo, 36.] Sub- sequently decided, 10 March 1888, L. R. 15 Ind. App. 127, that the jimior widow was only entitled to an annuity of 25,000 rupees, payable out of the entirety of the lestator'.s estate, MoNTAICyAC V. SlUTT.A, on appeal from the S. C. Lagos and C. of App. for the colony of Lagos. The latter court ordered the peti- tioners to pay in £4,928 19.9. 6rf. within a week, and refused leave to appeal to the Judicial Committee, although the petitioner olfered to find responsible persons to become SLCi.'rity for this £4,928 19s. 6d. 188!), 29 June. The petitioner asked for special leave to appeal, and deposited in the Regi.stry of the Privy Coimcil, to the satisfac- tion of the Registrar, Treasury bills to the amount of £5,000. Lord Watson, Sir Barnes Peacock, and Sir R. Couch granted leave to appeal. The Order in Council, dated 5 July 1889, contained the following : — The petitioner to pay Ju £300 as to costs, &c. " Fur- ther, that execution ought to be stayed pending the hearing of tlie appeal, and that the Treasiuy bills to the amount of £5,000 so deposited as aforesaid in the Treasiu-y of the Privy Council, ought to lie bclil as having been t due from Obhoyehnrn, and it wcdd be far from eonsistent with the rides whieh their Lordships have nlwavs laid down in dealing with eases of this kind for them to reverse a decision upon a question (if fact thus unanimously arrived at by five judges, unless the very cienrest proof were addi.eed to their Lcirdsliips that that decision was erroneous. It is true that oidy the two primary judges had before them the witnesses, or the witness, who were or was examined ; but tiie three judges of the Court of Appeal, conversant with testimony of the kind whieh has to be dealt with in this ease, were of npiiiion tiiat the two judges of the court lielow liad arrived at a just coneliisioi) upon the evidence that was ever adduced." Ai,LES V. Qi'KBKC Warehouse Co., from Q. B. Quebec, 8 Oct. 1884, atiirming Sup. Ct. In P. C. IS Xov. 1886, 12 App. Cas. 101; 56L. J.P. C. 6. The appel- lant lirought the action against the respondent for damages for breach of warranty as public wharfingers. They stated tliey were the owners or the " Bridgewater," of 1 ,556 tons, that on 21 Nov. 1880 she was moored by her bow to a post and mooring block on the wharf of the respondents; that owing to the post bein- decayed tlie ship broke fuvay. Lord Herschell said [there lieing also present Lord Fitzgerald nnd Sir Barnes Peacock] : " Their Lordships having arrived at the conelnsion that there has been no error in point of law, the sole HOUSE Co. que.stion that remains for deter- Allen v. Qitb- mination is, whether tlie judgment ^^'^ '^"^* of tlie court below ought to be reversed on liie ground that the judges have taken an erroneous view of the fads. Now, it has always Im-cii the view taken by this Connnittee in advising Her Ma- jesty, when the (piestion for de- termination has been whether the concurrent judgment of the judges who have been unanimous below should be supported or lever.sed, that unless it be shown with abso- lute clearness that some bhmder o^* error is apparent in the way in which the learned judges below have dealt with the facts, this Committee would not advise Her Majesty that the judgment should be reversed. 'J'hat jjrinciple has been laid down in many eases." [His Lordship then read the pus- sages given above from the judg- ments of Lord Kingsdown and Lord Cairns in Naragunty Lutch- meedavamah r. Vengama Naidoo, and Tareeny Churn Bonnerjee v, Maitlnnd respectively, and con- tinued] : " Their Lonlships entirely adhere to the views thus expressed, and therefore they dp not consider that the question they have to determine is, what conclu.sion they would liave arrived at if the matter had for the first time come lx>fore (hem, but whether it had been established the judgments of the courts below were clearly wrong." His Lordship then con- sideied the evidence as to con- tinuing to moor to one post (whicli post tlu> judges below had exa- mined) when a gale arose and the tide was forcing the ship away ffoni tlie post, and found tliat it could not be said that the judgments "ere wrong, and therefore they ought not to be disturbed. A prelimiiniry application was made in the above ease that the rotten post in question should be ordered to be sent from 'Quebec for the inspection of the Judicial Committee, but the application was refused. 1 ll J .: .- \ ' '.'In 1i \f m m \i ! i in t 11 Hi ,i^:i!i I . ■ '■ 'I m im mm I 1 ! ! ! ;i n Mi fljil^ ll ,J Dill TnEBERGE V, Landky. 440 B.N.A. ACT, 8. 101.— PREROGATIVE PRESERVED, Fixing the Quantum of Damage. — The Judicial Coinmittee may thi-mselvcs fix the quantum of diuuaj^e where it will avoid further litiijation. The Windsor and Annapolis Railway Co. v. The Queen, in P. C. 21 June 188G, 55 L. J. P. C. 41; 55 L. T. 271 [see post, sec. 1U8J, reversing on the iioint of damages the judgment of the S. C. of IG Feb. 1885, 10 S. C. II. 335. It appears from the City of Win- nipeg V. Logan, 19 March 18S)2, where special leave was asked to appeal from the decision of the Q. B. Manitoba, — the school case — that where no order has been made for recei>'ing appeals from a new dis- trict or country, special leave must always be obtained. In Theberge v. Landry, Nov. 7, 1876, 2 App. Cas. 102 ; 46 L. J. P. C. 1; 35 L. T. 640, a case dealing with a controverted election petition under Quebec Act of 1875, Lord Cairns, L.C., delivering the judgment, said : " Their Lordships wish to state distinctly, that they do not desire to imply any doubt '^'hatever as to the general princi|ile that the prerogative of the Crown cannot be taken away exce})t by express words ; and they would be prepared to hold, as often as has been held before, that in any case where the prerogative of the Crown has existed, precise words must be shown to take away that preroga- tive." [See ante, p. 308.] One of the first cases on appeal from the S. C. in which special leave to appeal was refused, was Johnston v. The Minister and Trustees of St. Andrew's Church, a petition on the part of the minister, &c., to appeal. • The cause of action was a disturbance in the occupation of a pew, and the action was raised by Johnston to obtain damages for that. The Sup. Ct. Montreal dismissed the action with costs. On 3 Feb. 1876 the Q. B. Quebec affirmed that decision [Monk, Sanborn, and Tessier, JJ., Dorion, C.J., nnd Riimsay, J., dissenting], 18 L. C J 113; 1 S. C. R. 235. The S. c", 28 June 1877 [Ritchie, Tuscjipiwui, K()urnier,an(l Henry,.JJ., Kiihanis, C.J., and Strong, J., dissent iii^r], allowed the appeal, and ordered tlio minister, &c., to pay Johnston §3oO and costs in all the courts. In P. C. Dec. 10, 1877, 3 Ajip, Cas. 159 ; 37 L. T. 556 ; 2G W. R, 359, Lord Cairns, L.C. [there be- ing present also Sir J. Coiviie, Sir Barnes Peacock, Sir M. E. .Sinilh, and Sir R. Collier], delivered the judgment refusing special leave. His Lordship, after reading the 'i;th sec. of the Supreme Court Art, 38 Vict. c. 11. [see ante, p. 105], said : " That section consists of three parts; the second or inter- mediate part of the section contains the negcitive words, ' No appeal shall be brought,' &c. Those words their Lordships may leiive out of consideration, because they refer to what may be called the hypothetical establishment of a court by tiie Parliament of Great Britain and Ireland [Judicature Act, 1873], by which court appeals from the colonies are supposed to be ordered to be heard, and, inasmuch as no court of that kind has been estab- lisheil, that part of the section may be omitted from our consideration. I will read it, therefore, as if the section ran thus: 'The ju(l;^meiit of the Supreme Court shall in all CMses be final and conclusive, sav- ing any right which Her Majesty may be graciously pleased to ex- ercise by virtue of her royal pre- rogative.' " Now, their Lordships have no doubt whatever, that assuminj;, as the petitioners do assume, that their power of appeal as a matter of rijiht is not continued, still that Her Ma- jesty's prerogative to allo.v au ap- peal, if so advised, is left entirely untojiched and preserved by this section. Therefore their Lordships would have no hesitation in a proper case in advising Her Majestj to m B.N.A. ACT, 9. 101.— GUIDING PRINCIPLES. 441 allow an appeal upon a judgment of this court. "But the question remains, as- suming that there is tb*^ power to allow iin iippeal, is tiii.s a ease in which tlif special prei'ogative of Her Majesty should be exercised ? " Upon that ground their Lord- ships have been unable to discover nnv a(l('(iu,ite grounds for the special exercise of the prerogative." . . . "If the particular value alone is looked to (8300), there is not that amount of injury which would justify any special interposition of the prerogative. ..." But whether right or wrong, it is not a decision which can have any bearing, or which can occas.on any inconvenience, with respect to a large number of other cases. . . " It would be a departure from the principles which should guide " their Lordships, " when advising Her Majesty as to when nn appeal should be allowed, to advise that an appeal should be allowed merely fur the purpose of testing the ac- curacy of the construition put upon a particular document, which (locnnient, if it affects any number of other cases, can be altei-ed at the will of the party who asks for the exercise of the prerogative." During the argument. Lord Cairns L.C., asked why should not the (liiriculty be .•'olvetl by altering the form of the contract, and Dr. Ijeaue, for the petitioner, admitted that might be ilone. Times, 1 1 Dec. 1877, ll«. Then in Valin v. Langlois, 1879 [nee ante, p. 18], Lord Sclborne Slid that it was necessary to show loth that the matter was one of importance and also that there was really a substantial question to be determined. Therefore these cases decided : — (1) Is the case one in which the prerogative should be exercised — namely, is it one of gravity in- volving matter of public interest or law? (2) The value or stake ought to be considered ; that is, is it of considerable amount, or affecting TiifBEROK f, property of large amount ? (3) Has Landey. the decision any bear ng on a large number of other cases? (i) is there a substantial question to be decide 1 ? (o) There may be addiul the case of Taxation. Thus in Law- less V. Sullivan, in S, C. 15 April 187!), 3 S. C. li. 117, allirming S. C. N. B. June 30, 1877 i in P. C. 22 Feb. 1881, 6 App. Cas. 373; 50 L. J. P. 0. 33; 44 L. T, 897 [where the decision of the courts brflow was reversed], an appeal was allowed, the question being whether the Bank of British North America, a corporation established in London and out of the limits of the pro- vince, was liable to be assessed under the local Acts of New Bruns- wick on its gross income within the city of St. John, without taking into account its losses [this had been held to be the construction of the Acts by Ritchie, CJ., Strong and Taschereau, JJ., Henry, J., dissenting]. Leave to appeal allowed. Order in Council, 29 Nov. 1879. In Prince v. Gagnon, nn appeal Priwce i<, from a judgment of the Supreme Ctagnon. Court, 22 Jane 1882, 7 S. C. R. 386 [Sir W. Ritchie, C.J., Strong, Fournier, Henry, Taschereau, and Gwynne, JJ.], which reversed a decision Q. B. Quebec of Sept. 18, 1881, 2 Dor. Q. B. 74, which had re- versed the Sup.Ct. of Athabaska; in P.C.Nov. 25, 1882, 8 App, Cas.103. Lord Fitzgerald, in delivering judg- ment [at which were present also Sir Barnes Peaitock, Sir R. Couch, and Sir A. Hobhouse], said : — '• The suit involved a question of a sum of about £1,000. On one side it was alleged that this sum ought to be taken into account, as it represented goods which were given upon a contract of sale by the father to the sun on the occa- sion of the father relinquishing business in favour of the sou at the time of the son's marriage. On the other hand, it was alleged that the transaction in question was not M:' pRINCK I'. (jAONON. i ' I hI ■iH iS mil l! mH II 442 B.N. A. ACT, s. 101.— NO GRAVE QUESTION. a sale, and that it was a gift from the father to the son, executed by delivery of the goods in question to the son. There was no doubt the goods were nianually delivered to the son, and if it was intended to be a gift, the fact of that exe- cuted delivery, though without any writing, would be quite sufficient to vest the property in the son." [This was the same result as had been come to by the S. C] His Lordship continued : — " Their Lordships having looked into the case, see that it involves no thing whatever beyond this £1,000. There is no grave question of law or of public interest involved in its decision that carries with it any after consequences, nor is it clear that beyond the litigants there are any parties interested in it. The question for their Lordships to de- tei'inine is whether under such cir- cumstances they will recommend Her Majesty to grant to the peti- tioners special leave to appeal. Before the constitution of the Su- preme Court of the Dominion of Canada there was a right to appeal from the courts then in existence where the value of the matter in controversy was beyond £500, but that does not apply to the Su- preme Court. The language of the legislature of the Dominion is : — * The judgment of the Supreme Court shall, in all cases, be final and conclusive, saving any right which Her Mfijesty may be gra- ciously pleased to exercise by virtue of her royal prerogative " ; ami their Lordships are not prepared to advise Her Majesty to exercise her prerogative by admitting an appeal to Her Majesty in Council from the Supreme Court of the Dominion, sa\e where the case is of gravity involving matter of public interest or some important question of law, or affecting property of considerable amount, or where the case is other- wise of some public importance or or a very substantial character." And applying the principles laid down in Johnston v. Minister of St. Andrew's and Vaiin v. Langlois, refused the petition. City of Mostreai, v. Le< ECCLESIASTIQUES DE St. SlM.PICE. In Q. B. Quebec, 27 Jan. IHHS, 4Mon. Q. B. 1; :i2 L.C.J. 13, which was rever.sed by S. C, 19 March 1889, 16 S. c' H. 39!)' 33L. C. J. 197; in P. C. Julyii;,' 1889, 14 App. Cas. (JOO; 59 L. J. P. C. 20; Gl L. T. 053. This was a petition for s])ecinl leave to appeal. The action whs to recover $361.90, the amount of a special assessment for a drain made along the property of the de- fendants, who contended that thpjr property, being an educational in- stitution, was exempt from taxation under 41 Vict. c. G. s. 2(). The defendants maintained lu'tore tln' Supreme Court that they lind a right to appetd to that court, the matter coming under the words, "Where tV ' rights in future niav be bound," uprenie and Excheqner Court Act, s. 29. The ai)[)eal of the defendants to the S. C. being .suc- cessful, the City of Montreal applied to the Judicial Committee for s]h'- cial leave .o appeal. Lord Watson said [there being also present Lunl Hobhouse, Sir Barnes Peacock,anil Sir K. Couch] :— " In considering applications of this kind, it is necessary to keep in view that the statute of Canada 38 Vict. c. 11., which established the Supreme Courtof the Dominion, floes not give to unsucces.stnl liti- gants a direct right, either absolnte or conditional, to appeal from the decisions of that tribunal. Sec. 4" expressly uic^'res v>iat no apiwl ; i'l-nn any jndg- '■ .Supreme Court tJ'.vblishe.l by tlu> Ireat Britain ami a appeals or peti shall b( hi ment or on to f^ny CO- Ptvrliam.t'ni o Ireland by v. it tions to Her Majesty in Council may be ordered to be heard; but saves any right which Her Majesty may be graciously pleased to exer- cise by virtue of her royal preroga- tive. It is the duty of "their Lord- B.N.A. ACT, s. 101.— APPEARING llIGHT. 443 ships to advise Her Majesty in the exercise of her prerogative, and in tlie (lisfliarge of that (hity they are Imiiiid to a|)ply their jtidicial dis- cretion to the ])articuhir facts and eiiciimstaiK'es ol; each case as pre- sented to them. In forming an opinion as to the propriety of allow- ing an a])i)f'al, they must necessarily relv to a \ ei y great extent npon the ftntemeiits contained in the petition with regard to the import and effect of the jiidgnicnt complained of, and the reasons therein alleged for treat- ing it as an exceptional one and jicrmitting it to brought under re- view. Ex[)erience has shown that great caution is required in accept- ing these reasons when they are not fully substantiated, or do not n])[iear to be prima facie estab- lished by reference to the peti- tioner's statement of the main facts of the case, and the qtiestions of law to which these give rise. Cases vary so widely in their circum- Ktanoes that the principles upon which an appeal ought to be al- lowed do not admit of anything approaching to exhaustive defini- tion. No rule can be laid down which would not necessarily be siihject to future qualification, and an attempt to formulate any such rule might therefore prove mis- leading. In some cases, as in Prince v. Gagnon, 8 App. Cas. 103, their Lordships have had occasion to indicate certain particulars, the ahsence of which will have a strong influence in inducing them to ad- 1 ise that leave should not be given, lint it by no means follows that leave will be recommended in all cases ni which those features occur. A 'Mse may be of a substantial cha- racter, may involve matter of great public interest, and may raise an important question of law, and yet the judgment from which leave to nppeal is sought may appear to be plainly right, or at least to be un- attended with sufficient doubt to jjistity their Lordships in advising Her Maje-sty to grant leave to apiieaJ. The exemption which the Su- City of Mow preme Court has sustained in the present instance is a stiitutory one. The petitioners narrate the 77th section of the Consolidated Statutes of Lower Canada, cap. 15, and then proceed to allege that the effect of the judgment will be ' to deteruiine the future liability (meaning, appa- rently, non-liability) of buildings set a[)art for purposes of education, or of religious worship, parsonage- houses, and charitable and educa- tional institutions and hospitals, to contribute to local improvements carried out in their interests and for th(! benefit of their properties.' Had that statement been well founded, it might have been an importiint element in con.sidering whether leave ought to be given. But it is plainly erroneous. The statute in question, which relates to ' public education,' exempts the properties al)ovo enumerateil from educational rates levied for the purposes of the Act, and from no other rates. " The clause upon which the jud^ lit of the Supreme Court proceeded is .sec. 26 of the Statute of the Province of Quebec, 41 Vict, c. 6., which is an Act to amend the laws respecting public instruction. It enacts that 'every educational institution receiving no grant from the corporation or municipality in which they are situated, and the land on which they are erected, and its deiiendencies, shall be exempt from municipal and school taxes, whatever may be the Act or charter under which such taxes are imposed, notwithstanding all provisions to the contrary.' The seminary of St. Sulpice admittedly does not re- ceive any grant from the corpora- tion of the city of Montreal, and is therefore within the benefit of the exemption created by sec. 6, and the only issue raised between the parties is. Whether a district rate for drainage improvements, levied from that i)ortion of the municipal area which directly benefits by its expenditure, is or is not a municipal tax within the TRE.Mi I'. Le8 ECCLESIAS- TIQCKS DB St, SULPICB. of thQ ■i::|j ffiifl plifflp m Um i! 'I M ill :! ill ; ; i m City op Mow- trbal v. Les EcCLESIAS- TKJUES DE St. SULPICE. 1 I i 'HI! GnAND Trunk Eailwav Co. v. JJeckett. 444 B.N A ACT, s 101.— DECISIONS ON TAXICS. clause ? The pptition does not .set forth the source from which the petitioners derive their nuthoritv to execute su<'hiinpro\pmonts as (Irain- a<;o, and to assess for their cost. Powers of that descriptioH are en- trusted to municipal bodies, pre- sumably in the interest of the pub- lic, and not for the interest of private owners, although the latter may be benefited by their exercise. J'rhnd facie, their Lordships see no reason to suppose that rates levied for im* provements of that kind are not municipal taxes, and at the he,. ring of the petition their impression was confirmed by a rererence to the general municii)al Acts for Lower Canada. The counsel who appeared for the petitioners stated, however, that their powers are derived, not from the general Acts, but from a charter, the terms of which were neither refi-rrcd to nor explained. If the terms of the charter materi- ally differ from those of the general Acts, that deprives the case of any general importance. But it is quite possible that the concluding words of see. 6 may have been purjjosely introduced by the legislature in order to secure uniformity of ex- emption, whatever might be the teri)-:; in which the power to assess was conferred; and that conse- quently, in construing the clause, the expression ' municipal taxes ' ought to be interpreted according to its general acceptation, and not according to the meaning which it might be held to bear in some charter or statutes applicable to particular mtmicipalities. In these circumstances, their Lordships are not prepared to advise Hei' Ma- jesty that the petitioners ought to have leave to appeal. If such questions are, as they say, of fre- quent occTirrence in the city of Montreal, they may have the oppor- tunity of obtaining the decision of this Board in another case, upon appeal from the Court of Queen's Bench for the province. The petition, therefore, must be dis- missed." St. Lawrence and Ottawa Railway Co. v. Lett, U .S. C. R 422. and n. p. 449 ; in P. C. 20 March 1880 [|)resent Lonl \\\m\. burn. Lord Monkswfll, and .Slf ]{ Couch]. An application IVir s|H.tini leave to appeal from the decision of the S. C. was made. The nctioii was raised by the husband and children for damages for tlie lo-s of his wife and their mother nt a level crossing. The jury nwnnlHl 85,800, which were divided lictwiin the husband and five of \\w d;;!. dren. The eldest child licuii; 3o, and second child over 21, got no- thing. The petitioners, the railway company, contended that tlie plain- tiff mnst show pecimiary rlamacp resulting from tlie death of the por- son killed, or loss of roasonalile expectation of benefit, and this rnt having been shown no damuirp.s ought to have been given. That actions of this kind were of con- stant occurrence, and it was of great importance to obtain a de- cision from the highest trihunnl. Lord Blackburn said : 'I'hpir Lordships did not grant leave simplv because there was a difference of opinion among the judges. The majority of the judges of the Court below had decided there was sutli- cient evidence of loss to sustain the action. The question now was whether the present case was of such gravity or importance as to justify the Court breaking through the ordinary rules. Their Lord- ships did not think so. Applica- tion refused. 6 Can. Gaz. 583. Grand Trunk Railway Co. c. Beckett, 8 O. R. GOl ; 13 0. A. E. 174; 16 S. C. R. 713; in P. C, 22 July 1887 [present Lord Hob- house, Sir Barnes Peacock, Sir J. Hannen, and Sir R. Crouch], In this case Beckett's executor bronght an action for the death of Beckett while driving a wagon over the Grand Trunk Railway track. The Railway Act of the Dommion pro- vides that a bell shall lie rung B.N. A. ACT, 8. 101.— JURY DECISION". 445 and a whistle sonniled on approaoh- in<' a levul track. Some of the 'phM lii'l'l ihiii^e were statutory (]l)lii;iitioiis and ought to have been tomplifil With. Eeekett's life was insiufd, and the jiidjje directed the jiiiy to take that into consideration, uiul they deducted the amount of the policy, 8-,500, from their awunl. This direction was overruled by the Court of Appeal and the S. C. See Lord Watson's opinion in the uext case, where his Lordship gives the facts. Application was made by the Grand Trunk Railway to the Judi- cial Coininittce for special leave to a|ipeii', stating the above facts, and that xdur other actions depended oil tliis case. Lord HoV)house, in delivering the judgment of the Board refusing lea\e, said the case was not of suflicient public im- portance to warrant lea' ;. See 9 Can. Gaz. 3i)l. Grand Tuunk Railw.w Co. v. Jenxinos, an appeal from Ct. of Ontario, G Sept. 1887, 15 O. A. R. 477, alfirniing a decision of the Q. B. Out.; in P.O. Aug. 4, 1HH8, 13App. Cas. 8'.0; 58 L. J. P. C. ! ; 59 L. r. G7i) [present, Earl of Selborne, Lord Watson, Lord Hob- iioii^e, and Sir Barnes Peacock]. In this case the C J. and a jury in Q. B. Ontario had awarded $(),UllO for the man's death, not- withstanding he had insured for S2,000, of which the widow got the benefit. That decision had been affirmed by the Ontario Court of Appeal. Lord Watson said (13 App. Cas. 802) : " The learned j udges of the Conrts of Ont.ario considered them- selves bound by the authority of Beckett v. The Grand Trunk Rail- \yay Co. [see above], which was finally deciiled, on appeal from Ontario, by the Supreme Court of Canada. In that case, which was very similar in its circumstances to the present, the judge presiding at tlie tnal directed the jury to deduct S2,50O, the amount of au insurance policy on the life of the deceased, Ghand Trunk from the sum at which they esti- Railway Co. v. mated the pecuniary loss sustained by his wife and children through his death, and the jury, follow- ing the direction, assessed damages at §3,250. An order olitained by the plaintiffs to show cause why the verdict should not be increased by the sum of §2,500 so deducted was made absolute by a Divisional Court of the Queen s Bench, and judgment entered for the plaintiffs for the sum of §5,750 with costs. In the Court of Appeal for Ontario, and also in the i'ourt of Appeal for Canada, the case gave rise to much diffeience of judicial opinion ; but, in lioth, the decision of the Divisional Court was upheld. " In this appeal the appellants have raised precisely the same [joint which they unsuccessfully pressed in Beckett's case. They have never in the courts below sujisrested that the receipt of the insurance money by the widow was merely one of the circumstances which ought to be taken into account by the jury in estimating her pecuniary loss ; their contention has all along bet^n, that the primary duty of the jury is to assess damages, irresiiective of any such consideration, and that the court or the jury are then bound, as matter of law, to deduct from the damages asses.sed on that footing the full amount paid to the widow under the policy. It is trui^ that, in the reasons of appeal appended to their case, the appellants plead alternatively that the jury ought at least, in awarding such damages, to take the receipt of the said insurance money by the respondent into their consideration ; but liti- gants who have accepted the pre- siding judge's refusal to give a direction in law, which, if given, would practically have withdrawn the insurance money from the con- sideration of the jury, cannot be permitted to impeach their verdi(!t for the first time in a court of review, on the ground that the judge ought to have given a direc- ■irv 440 B.N.A. ACT, s. 101.— ARGUMENTS REVKRSEI). Grand Trunk Railway Co. t: Jbnninqb. f i ;'•; !M ' I 'I'"!!?; !:i! tioii the very revorse of that for wliicli they insisted at the trial. Uuiorts, tluTcforo, it can be .sliown that every eeiit of the §2,000 puiil to the resi)on(lent on aeeount of tlu! noliey upon her hnsl)an(rM life nuist, as matter of law, be de- ducted from the S(5,0U0 found by the verdict of the jury, the present appeal must fail." The above wonld lie sullicient for the purposes of this section, but as thest; two cases of Beckett and Jenninj^s jjave rise to nuich ditt'erence of juclieial opinion in Canada, the following part of the judf^ment, as lo the correct mode of calculating the wife and children's pecuniary loss, is given ; — Lord Watson continued : " In Beckett's case, as well as in the present, all the courts bellow have justly held that the right conferred by statute to recover damages in respect of death occasioned by wrongful act, neglect, or default, is restricted to the actual pecuniary loss sustained by each individual entitled to sue. In some circum- stances, that princiitle admits of easy application ; but in others, the extent of the loss depends upon data which cannot be ascertained with certainty, and must necessarily be mutter of estimate, and, it may be, partly of conjecture. When a man has no means of his own and earns nothing, it is obvious that his wife or children cannot be pecu- niaiy lo.^ers by his decease. In like manner, when by his death the whole estate from which he derived his income passes to his widow or to his chiki (as was the case in I'ym V. Great Northern Railwa\', June 15, 180;}, 2 B. & S. T59; 4 B. & iS. 396), no statutory claim Avill lie at their instance. A very different case arises when the means of the deceased have been exclu- sively derived from his own exer- tions, whether physical or intel- lectual. It then becomes necessary to consider what, but for the acci- dent which terminated his existence, would have been his reasonable prospects in lif«, work, nml iv. muneration ; and also how fur ilics", if n^alised, would have eoudiiccd to the benefit of the individuiil claim. ing comiK'nsation. 'i'luir Lord- ships are of opinion that iil! cir. cumstances which, though insiilii- cient to exclude a statutory clniiii, may be legitimately pleaded in diminution of it, ought to he sub- niitted to the jury, whose sppciul function it is to assess duiiiii'.'c with such observations from iIh' presiding judge as may be snjigcstid by the facts in evidence. It appi'ins to their Lordships that nioiicv pio- visions made by a husband for tho maintenance of his widow, in wlmt- ever form, are nuitters proper to lio considered by the jiu'v in estiiimtiiii; her loss ; but the extent, if iiiiy, to which these ought to be im[)iit('il in reduction of damages, must di'- pend on the nature of the provision ant' the po.sition and means of tlic deceased. When the deceased did not earn his own living, but liad an annual income from properly, om' half of which has been settled upon his widow, a jury iniirlii reasonably come to the conclusion that, to the extent of that half, the widow was not a loser by his death, and might confine their es- timate of her loss to the interest which she might probably have bad in the other half. Very diffeieiit considerations occur when tin' widow's provision takes the sliapi' of a policy on his own life, effected and kept up by a man in the posi- tion of the deceased William Jen- nings. The pecuniary benetit which accrued to the respondent from his premature death, consisted in the accelerated receipt of a snni of money, the consideration lor which had already been paid by him out of his earnings. In such a case the extent of benefit may fairly be taken to be rejireseated by the use or interest of the money during the period of acceleration, and it was upon that footing that Lord Campbell, in Hicks v. Newport Railway Co.,1 7 Feb. 1857,4B.&S, B.!^.A. ACT, s. 101.— LEAVE GIVEN BELOW. 417 note, I), lo;!, .su}.'St'»ted to the jury llmt, in otiiimting tho widow's Idss.'tho bciu'lit which she derived Iriiiii iieci'leriitiou ini<;iit be eoui- u'lisiited l)y de(hictin<; from their isiimate ol' tiie future eiiniiiigs of the deci'iised the nmouut of the piimiiims wliich, if he hud Uved, hf would iiave had to pay out of bis earnings for the maiiitenunce of the policy. For these reasons their Lonlsbip.s are unable to ntfirm that the exri'ption taken by the appel- lants to the riding of the presiding juiif^e is well founded. They are not "disposed to regret the result, hwiiuse it appears that the learned juiigu exeliuled from the consiiler- iitiou of the jury all chances of the deceased having obtained a rise of wages, or of his having been able to iimke some further provision for his widow." Appeal dismissed. Tiie above two cases show the extremely favourable position Cana- liian litigants are in. For if an appeal on a vexed question coming from the Supreme Court of Canada is not entertained by the Judicial C'ouanittee, the same question, if of the appealable value, can be iieani by the Judicial Committee if it comes from the minor courts direct. McDouGALL V. McGrkevy, see 14Q.L. E. 30. InP. C. 21Ju]y 1888, present Lord Hobhouse, Lord Macnaghten, Sir E. Couch, and Sir Barnes Peacock. Tiiis was an application to the Judicial Counnittee to rescind an order of the Q. B. Quebec giving leave to appeal in an action brought bv the pluintiti' to recover damages for the profit made on the sale of IjUOU shares in the North Shore Raihviiy. Judgment in the Sup. Ct. was given in favour of the plaintiff McGreevy. The Q. n. affirmed the liability of the defendant, but varied the Sup. Ct. judgment, and directed a reference to experts to ascertain and certify to the Sup. Ct. as to 10 Aug certain transactions alleged to have McDouoALr, v. taken place in resfjcct to the shares. McGueevy. On McDougall lodging his appeal, McOreevy petitioned for its dis- nussiU. lie contended there was no right of appeal, the matter being an aj)peal from an interlocutory judgment. Lord Hobhouse, in re- fusing to rescind the order, said the objection could be raised on the liearing of the appeal, though their Lordships at the i)resent stage must assume the judges were right in giving leave to appeal. Petition (iisnnssed v'th costs, Queen's Order, 18b; 11 Can. Gaz. 35)1. Sub.seipiePfiy, 20 Julv 1889, see 15 Q. L. it. 198, and Queen's Order, ?j July 1889, the Judicial Committee [Lord Watson, Lord Hobhouse, and Sir R. Couch] re- versed the judgments of both courts below, and dismissed the plaintiff's action, McClreevy to pay the costs of the appeal to the P. C. In Maguka v. Maguba, Dec. Maocra t'. 12, 1885, 6 Can. Gaz. 248; Queen's MAauR.t. Order, 29 Dec. 1885, the husband had secured a divorce in America for desertion, and the wife had obtained against the husband ali- mony in the Canadian court. The husband asked leave to appeal. The amount in question was above the amount given in the Ontario Act. The action was brought in the Chancery Court, Ontario, by Mrs. Magura, and the defence set up was that the husband had been divorced in America and had mar- ried again. The domicile of the husband was Canadian, but thi? American court of St. Louis had found an equiv. lent to domicile and had dissolved the marriage. The respondent maintained leave ought not to be granted, as the question in the Canadian courts had pro- ceeded on a question of fact. 'J'he CO irt in Ontario held that, inas- much as there was no bond Jide residence by thehusbanilin America, the decision of the American court had been obtained by fraud. The husband's counsel said there 1 1 i ■ I ! I Maoura v. JSiIauuiia. !' I i ! !.H: 418 B.N.A. ACT, 8. 101.— ALTHOUGH JUDGES DlFFLR. niicht be a reMidfiicti in Americiv wliic'h would give the Aiiu'riciiii courts jurisdiction, ulthough tlw parti(^s .still retiiiiicd their Cuiiiidiaii domicile. The Ainericuri judg- ment was u judgment within its juri.sdiclion, and to these pintles not a foreign judgment, therei'ore it cannot be (examined on tlu; grounc' ot I'raud, and could not be inquired iiito. Lord Monkswell said their Lord- ships felt so much doubt and diili- culty about the easi^ that they were not prepared to difl'er fioni the court below. It had been sug- gested that an important and diili- cult question aro.se, namely, that there miyrht be u residence of parties sulficient to support the jurisdiction in u case of this kind which would not amount to domi- cile, liut this (piestion did not arise;, inasmuch as both courts had found on the pr(diminary question of fraud that the decree wu.s invalid. I'nder these circumstances, it ap- peared to their Loidshi[)S that there was not sullicient ground to grant leave to appeal. To obtain leave to appeal in a question of fact it is very important that their Lordships should have uU the materials before the!;i. See Canada Central Railway v. Murrav, in S. C. May 1, 1882; 8 S. C. K. 313 ; in P. C. June 30, 1883,8 A pp. Cas. 574, an action on account brought by the respondent against the railway company to recover money due for fencing along the line. In the S. C. it was held by Fournier, Henry, and Gwynne, JJ., allirmiug the Out. Ct,, where the judges being equally divided the verdict in favour of the plaintiffs stood, that a new trial ought not to be granted, the decision not being against the weight of tividence. Kitcbie, C.J., and Tascbereau, J. were of a different opnion, and that there was no evidence that Foster (a person appearing to act as manager) had authority to bind the railway company in the con- tract be made. Lord Watson [there bein" nlit a contractor wiiji the comi)any, dealing with them us nn independent contractor. Tlif judge put the question to the jiin, Whether they were siit'slicd tlwt the pluintifl contracted in the be- lief that he was dealing with llu' company ; and further put tliiM|iics- tion to them. Whether tlii'('oni|i!iiiv had fostered that be iel', anil (Icait with the plaintiff on the iontiii;; that they liad contracted wilii iiiiii; and in the event of the jnry com- ing in point of fact to the con- clusion that both those (lucstioiis should be answered in the airiiinii- tive, he directed them tluit a ver- dict should follow for tlu; pliiiiitill', The jury found for the plaiutiff. The questions that seem to have been discussed in the courts below may be said to be two: first, whether there was evidence to go to the jury at all, making the peti- tioners parties to the contract bv adoption or recognition ; and, in the second place, whether the evi- dence was sutlicient to establisli the fact that they had recogniseil or adopted the contract, which was admittedly made by Foster with the plaintiff. There has been a difference of opinion in the court below. The majority of the judj'S were of opinion that the verdict was warranted by the evidence be fore the jury, and the couri^e taken by the judge was consequently not only justifiable, but right. The view taken by the minority of the court was that there was no evi- 'M B.N, A. ACT, R. 101— PULE LATT) DOWN. 449 ilenop to po to the jury n[)on tlmt iKiiiit— lit It'n^t, no cvidciico of a Mitisfiictdry ili'scripfioii — and tliat, ilirritorp, 111" vcnlict of tlic jury „ii' niio Andrew Mercer, of Toronto, who (liedin 1871, the province of Ontario became entitled to his • state as Icffislative assignee of the t-'rown. The respondent claimed the Dominion was entitled. Proud- f'>ot, V.C, decided an escheat iifiTiied for the benefit of the pro- I vinee and not for the Dominion. S 2340. MRRrTR. The Ap|)oal Coiut ofOnturionfflrm- Att.-Okn. or ed this, but the S. V. reversed, •,VL?."'r *'' giving judgment for the Dominion as against the province. 'I'he ni»- ])(dlant contended tlmt lands in Ontario weie granted and are held in fee and common socage, and that an escheat was an incident of tenure in socage, as it was of tenure bv knight service before tho 12Chas.'lI.c.2l. Tlmt before con- federation, property of this nature did not belong to Her Majesty personally and for her private use, nor to llie empire at large, but, like ungranted and unappropriated wild lands, belonged to the pro\ ince, which still had all rights not ex- |)ressly taken from them. The B. N. A. Act did not repeal the old eonslilntional Acts, or (K'clare that all enumerated rights possessed by the province were to cease. Tho right to lands escheated for want of heirs was intended to be h'ft to the provinces. .SVe sees. 109, 117, post. Lands, mines, minerals, royalties, and other [>roperty Ik'- longing to each province was declared to be continued to belong to them. All lands in Ontario were held of the Crown, and not of a mesne lord, and the Crown re- tained in them the right of escheat. If such escheats were prerogatives of the Crown, then they belonged to the proxiiice as royalties. The respondent maintained that tho onus was on the province to show escheats belonged to it, and that they had failed to do. Real pro- perty of subjects dying without heirs escheated to the Crown jure coroniv. Since the passing or the B. N. A. Act, the right of the province cordd only Ije determined by reference to the i)rovisions of that Act, and either the right to escheats was giv«'n expressly to the Dominion, or, not being given ex- preprsly to the province, belongeil for that reason to the Dominion. If lands in Ontario escheated to Her Majesty in right of her royal prerogative, the Att.-Gen. >* the Dominion, and not the Att.-C5m. F F H I ' ■lii d Att,-Oir. of Oktabio v. Mbbcbr. tHt Nasmitk v. Marninq. Caldwull v. McLabbk. i;i' 460 B.N.A. ACT, 8. 101— REASONS FOR SP. LEAVE. of the province, was the proper person to represent Her Majesty. The lands and minerals assigned to the several provinces were such as then belonged to the several pro- vinces. Escheated lands could not be regarded as "royalties," and Her Majesty formed no part in the provincial legislature, as she did in the Dominion. 1883, 28 Jan. Lord Blackburn, Lord Watson, Sir Barnes Peacock, Sir R. Collier, and Sir R. Couch, granted leave to appeal. 18 July 1883, additional documents were allowed to be lodged. July 18, 1883, 8 App. Cas. 767, Earl of Selborne, L.C., gave the judg- ment, reversing the S. C, and said it was some satisfaction the courts of Ontario and Quebec agreed on this question. His Lordship re- ferred to Att.-Gen. of Quebec v. Att.-Gen. of the Dominion, 8 Sept. 1876, Q. B. Quebec, 2 Q. L. K. 236, where Dorion, C.J., Monk, Ramsay, Scnborn, and Tessier, JJ., were unanimous in holding that the Dominion Government had no claim to the escheats there in ques- tion, and reversed Sup. Ct. 29 Jan. 1876, 1 Q. L, R. 177 (Taschereau, J.). See sec. 109, post. In Nasmith v. Manning, Feb. 12, 1881, 5 S. C. R. 417, aflimiing 5 O. A. R. 126, reversing 29 U. C C. P. 34, the appellant was a judgment creditor of a railway in Canada, and he sued the respon- dent as a shareholder therein for calls. The S. C. held that the document relied upon and signed by the respondent was only an application for shares, and that it was necessary fo" the appellant to have shown notice of allotment of the shares to the respondent, which he had not done. 1881, July 2. Allowed— but the case was subsequently settled. See Cassel's Digest, 1893, 890. In Caldwell v. McLaren, Nov. 28, 1882, 8 S. C. R. 435, reversing 5 O. A. R. 363, and re- storing the judgment of the Court of Chancery, Ontario. In tiiis case the respondent claimed to pip. vent the iloating of tiuilK-r down n stream, the stream not bcini' siioli a stream as would float tiuilnr without the artificial improveiucnts which the respondent liml erected, and that such a stream did not come within the Canadian Act 12 Vict. c. 87. s. 5; C. S. U.C. c. 4H .s. 15; R. S. O. c. 115. s. 1; and, secondly, that Boale v. Dickson wa.s in point. 1883, March 6. [Present Sir Barnes Peacock, Sir R. (Collier, Sir R. Couch, and Sir A. Hobhonsp.] It was stated the question affected the navigation of near'yailtiie rivers and streams of Canada, besides various matters of revenue. Tlieir Lordships, considering tlu; great public interest the case involved, granted leave. Times, 7 Marcii, ia. The judgment allowing special leave was as follows : — " Tu the case of Prince v. Gagnon, from the S. C. of the Dominion oi: Canada, their Lonlships said they were not prepared to advise Her ilajesty to exercise her prerogatiw or ailmit an appeal to Her Majesty in Coun- cil from the S. C. of the Domin- ion, save where the case was of gravity involving matters of publie interest or some important question of law, or ailecting property of con- siderable amount, or where tlie case was otherwise of some public importance or of a very substantial character. Their Lordships think this case falls entirely within the rule there laid down. The ques- tion for their Lordships to consider is: Is there a prima facie case made to induce their Lonlsliips to grant leave to appeal from the de- cision of the S. C. in this ease? The judges of the S. C. [Sir W, Ritchie, C.J., and Strong, Henry, Taschereau, and Gwynne, JJ] were unanimous; but they over- ruled the decision of 0\o Appellate Court of the provn.ce, in which the judges were almost unauinious [Spragge, C.J.A., and Patterson I It B.N.A. ACT, s. 101.— ARGUABLE CASE. 451 and Morrison, JJ. \., Burton, J. A,, Jissentinff], there being only one who dissented. Looking at all the drcumstances of the case, their Lordships think this is a case wiiicli may he said to be arguable, without expressing the slightest opinion as to what may be the re- suit of tliis decision. Their Lord- i^iiips have also taken into con- lijdpiaiion the fact that in this case the rigiits of parties will not be dekved. The [jlaintiff has got his injunction, and the only difficulty is witli reference to the expen.ses of this appeal. The appellants are willing to bear that expense, and they come to ask Her Majesty to exercise her prerogative. Their Lordships think that, under all the circumstances, it would be right to advise Kor Majesty to admit this appeal; but that is u|)on condition of a sutiicipnt sum being deposited to bear tlie expenses. Looking to the immeiisi' mass of i)aper here, their Lc.Iships think that the or- dinary sum of £300 is hardly suffi- cient to cover tlie expense ; they therefore tliink that it ought to be upon the deposit of tlie sum of £500. There is one other point to which their Lordships wish to idliide; that is, the objection which has been made to the jurisdiction of the Dominion Parliament to pass the law with reference to the .S. C. of Canada, and also the power of the Supreme Court of Canada to entortain such an appeal as this, which involves a question of ihe construction of the Acts of the provincial Parlia-nent. Their Lordships do not tbmk there is any ground for allowing that ques- tion to be raised on the hearing of llie appeal." Subsequently in P. C, April 7, 1S84, 9 App. f IS. 392 ; 53 L. J. P. C. 33, reversing S. C, held that the right to float timber down streams extended to all streams, even when such streams would [lot be floatable without artificial 'iiiprovement, Roale v. Dickson 1W3. 13 U. C, C. P. 337 [where a person was held entitled to charge a toll for use of a slide in running timl)er where there was not sufficient water to pass timber without his dam and slide], overruled. MooDYViLLE Saw Mill Co. AND British Columbia Towing Co. V. Sewell, 9 S. C. R. 527. This was a suit brought by Sewell, the owner of the sailing boat the " Thrasher," against the above ap- pellants, who are the OAvners of the tugs "Etta, White" and "Beaver" respectively, which were emi)loy- ed in towing the " Thrasher " with a cargo of coal. The suit was brought by Sewell for .S80,000 damages for negligence in running the " 'J'hrasher " on to a rock in the Gulf of Georgia. The ship arrived in ballast at Royal Roads, British Columbia, 22 May 18H0. The nms- ter thereupon entered into a con- tract with the agents of the " Bea- ver " to tow the vessel to Nanainio, and from thence to Cape Flattery with coal, for .'^GOO. Arriving at Xanaimo aiul loaded with coal 14 July 18 HO, the master of the " Beaver " engaged the " Etta White " to assist in the towing. On the 14th July they started, the two tugs towing. The same night the "Thrasher" struck on an unmark- ed rock 1,200 yards outside rocks marked on tiie chart as Gabriola reef. The several owners of the tugs, though pleading separately, both contended that, in accordance with the Canadian Act, 31 Vict. c. 58. s. 12 (see also ')1 & 58 Vict. (Imp.) c. (iO. s. 503), they were not liable ri>r an aggregate exceeding 838.92 per ton of tlieir tug's tonnage where the loss has occurred without their actual fault or privity. Begbie, C. J., discharged the jury before they had given any verdict lor either party, lait (hey answered several questions put by the; judge. On a motion for judgment, the judge found for the defendants. S. C. B. C. affirmed the decision. F F 2 Caldwbll v. McLaren. moodyvillb Saw Mill Co, AND British Columbia TowiNO Co. V. Sewell. '"' 1 f i 1 ■,i iS , 462 B.N.A. ACT, H. 101.— WHERE ACT IN QUES, V Jl ! t.A. moodtville Saw Mill Co. AND Britis^h Columbia TowiNo Co. V, Sewell. CORl'ORATIOX OF City of Quebec v, Quebec Cex- TiiAL Eailway. Lewin I'. Wilson. On 16th Jan, 1884, S. C. set aside the decision of S. C. B. C. and gave judgment for S80,000. Defendants a])pealcd, and alleged that the decision was contrary to Smitn V. St. Lawrence Tow Boat Co., March 24, 1873, o L. K. P. C. 308. 1884, 14 June. Leave granted. Cohpokation ok the City OF Ql'EBEC V. QnEBEO CeNTHAL Railway, .Tinip 23, 1884, 10 S. C. R. 503, reversing Q. B., Quebec. This Avas a claim on the part of the Corporation of Quebec to rank pari passu with the Quebec Cen- tral Railway on the proceeds of the judicial sale of the Levis and Ken- nebec Railway, of which 43^ miles were completed. The respondents contended that they were not enti- tled to this as 45 miles of the rail- way had not been completed, a con- dition precedent specified in the Quelle Act 37 Vict. c. 23., and necessary to legalise the issue of the bonds of which the eor[)oration Avere the holders. A subsequent statute, 39 Viet. c. 57., the S. C. held, had rendered these, the bonds in (]uestion, valid, altho\igh the conditions in 37 Vict. c. 23. might not have been fidfiUed. Tliis agreed with the corporation con- tention that the legislature, which in 1874 had authorized the issue of the l)onds only after 45 miles were completed, had the right to declare in 1875 that those bonds were valid, though issued before tlie comple- tion of 45 miles. 1884, Leave granted to the Central Railway Co, of Quebec to api^eal. In Lewix v. Wilson, 9 S. C. R, 637, aifirming the judge in Equity, S. C. N, B,, in a suit for- the fore- closure of a mortgage, the ques tion related to the construction and application of sec. 40 of the Imperial Statute of Limitations. 3 & 4 Will. 4. c. 27., and 7 Will. 4. & I Viet, c, 28., which had been adopted and re-enacted in New Brunswick, and are respectively sees. 29 & 30 c 84. of the C. S. of N. B., intitul«i "An Act relating to the limitntions of real actions," 1885, 13 June, Speciul loaw allowed, Subsequentlv, .Tune 2.") 1886, 11 App, Cas, 639; oo L. J P, C, 75 ; 55 L. T. 410, reversed. In Windsor and Annapolis Railway v. The Qikkn a.nd Western Counties Railway, Feb. 16, 1885, 10 S. V. \\. 33i{ reversing Gwynne, J., in Ex- chequer, the appellants cliiimcd, liv means of a petition of lij^lit, diuu- ages against the Dominion for do- priving them of the possession of a railw.ay. One of the questions was whether an action for dmnages for a tortious act did lie by petition nf right against the Crown. The S. C. held the Crown liable. 1885, 4 July, Special leave to appeal was granted to the itppcl- lants, on the ground that there was involved the question whether effectual relief by way of specific performance was not awarded to them ; inasmuch as the amount awarded to them by the .Snprenie Court, namely, .S9589'7, was wlioilv inadequate for the damage caused to them by being put out of pos- session of the railway in question; secondly, that it was awarded on an erroneous principle, nnmeiv, that the appellants might recovir damages against the respondents, the Western Counties Railway Company, in respect of the period that that railway company wore in possession of the line, 14 Nov,, cross appeal allowed to be presented. In the cross appeal [present Lord Monkswell, Lord Hobhouse, Sir B. Pencoek, and Sir R. Couch], the Attorney. General for the Dominion set out in his petition that the Windsor and Annapolis Railway Company raised this action against tlii' Canadian Government, citiuJ also the Western Counties Rnl- way Company, l.y petition o( right ; that in the S. C Ritd'ift BSA. ACT, s. 101.— LEAVE FOR CROSS APP. 153 C'.J., Fournier, Henry, and Tiischeivau, J. J. [Gwynno and Strong:, JJ., dissenting], held that lb iietition of right lay against the L'rowu, tint the judges disagreed as to the measure of damages — Ritchie, C.J., and Taschereau, J., liokling that the Windsor and An- napolis IJaihvay Company were only entitled to damages for the pcrioil tluy were out of possession prior to the Western Counties Railway being put into possession, Henry and Fournier, J.f., holding that the Crown was liable for the ic/io/c perioil of the exclusion of the Windsor and Annapolis Rail- way Company out of possession ; that the (hunages of 8t)589.7 were a-sessed on the footing of the find- ing of Ritchie, C.J., and Tasche- reaii, J.; that as leave to ajjpeal had been grunted to the Windsor and Annapolis Railway Company, it wonhl be of importance to have also decided the question raioi'i!il. The privilege ^vould be worth very little if a person making 11 (■ouiiiiuuication on a privileged uecasioii were to be required in the lirst plaee, and as a eondition of iiuniunity, to [irove affirmatively tliiit he honestly believed the state- ment to tie true. In sucb a ea.se bona Jidcs is always to be pre- siiuied." His Lordship then eited the following;; passage from Cotton, L..T., ill Clark v. Molyneux, 3 (i. B. I). 2.'i7 (a ease not of master and servant, but of a eoniinnnieation vo- lunteered from a .sense of r the ii])|)('iliiiits were liable to the re- int in controversy was under $1,000. Sir W. Ritchie, C J., said : " The matter has been before this court more than once, appeals from Ontario being ob- jected to on the ground that leave lias not been granted under the Ontario Act, and it has been stated most unequivocally that this court is not bound by the Act. If it is, B.N.A. ACT, 9. 101 .—CASES OF ASSESSMENT. 461 then oncli province could loerior Court. 1887, 22 July. [I'resout, Lord Hol)h()nse, Sir James Haunen, Sir R. Coneli, and Sir Barnes Peacock.] Leave granted. It' the order in Canada is not drawn up, and it is necessiu-y to oljtain special leave to appeal on the ground that such special leave will stay execution in a similar ease in Cana(hi, their Lordships may, in refusing leave nntil the formal order is drawn up (as in this case they did), make a minute to the effect that the peti- tion should stand over, with leave to amend after the formalities had been gone through in Canada, a copy being supplied to th(^ peti- tioners, which they could show those concerned in Canada that such appeal had been presented. Can. Gaz. 391. Ultiniatidy the Judicial Com- mittee, 1 Aiig. 1889, 1-1 App. Cas, 612; 59L. J. p. C. 25; Gl L. T. 525, affirmed the S. C. In Corporation of St. John's r. Central Vermont Railway Co., June 20, 1887, 11 S. C. R. 288, Ritchie, C.J., Strong, Henry, and Qwynne, JJ., against Fournier and Taschereaii, JJ., reversing Q. B. Quebec, 27 March, 1886, and Sup. Ct., 10 March 1885. The S. C. found the assessment void. The question concerned an assessment made by the Cor[iorfttion of St. John on the railway [)roperty of the Central Vermont Railway, es- pecially as to the assessment on the railway tracks and pari of n railway ))ridge within the limits of St. John's. This bridge ero.ssed the navigable river Richelieu and connected the town of St. John's and the town of IlK'rville. 'I'he railway comjjany submitted that as the bridge crossed a navigable river under the sole <'()ntrol of the Do- minion nn(h'r the B. N. A. Act, it was not sid)jeet to taxation by the nuuiieipality, the real point being whether or not anything more of the land on which tin; sui)erstrnc- ture of the railway is placed can bo assessed in addition to the land it- self. Ritchie. C.J., htdd that the legislatiu'c had carefully protected railways from any local assessment beyond the mere value of the land ai)art from, ami independent of, the roadway with its superstriuitnre. The (piestion thus invohed tho construction of the 98th section of •11 Vict. (Quebec) c. (52.,M'hich con- solidates the Acts ineor[)orating the town of St. John's, and which im- ported certain soctioiisof tho " Town Corporation General Clauses Act, 187G," 10 Vict. 0. GO. ss. 32G, 327, 370. 1887, Dec. 17. [Present, Lord Fitzgerald, Lord Hobhouse, Sir Barnes Peacock, and Sir R. Conch.] According to the order giving special leave to appeal, the peti- tioners, the Corporation of St. John's, stated that "If the judg- nient of tho S. C, contrary to the view of both courts in the province, and to that of the two French judges in the S. C. (Fournier and Tascheroau,JJ.)iscorrect, the power of taxation of the municipalities in tho province of Quebec is greatly limited, and that whether it is by law so limited is a question of great and general impoi'tance." July 25, 1889, 11 App. Cas. 590; 59 L. J. P. C. 15; Gl L. T. 441, Lord Watson, delivering ti judgment affirming the decision of NoiiTii Siionis U AM, WAY I'. I'lOM. i ConponATioN 01' St. .Iohn'» V. Central Vebmont Railway Co. !■ 1 i; OOBPOBATION or St. John's V. Centiiai. VnnMONT Railway Co. il Sheo Sinoh Eai v. Mussu- MUT Dakho. 462 B.N.A. ACT, 9. 101.— ARGUING ON FACTS. the S. C [there In'ing nlso prosent Lord Bminwcll, Lord Ilolihousd, Sir Unrnes Peacock, and Sir II. Couch], after ri'lVrriii}^ to the above extract Iroiii the onlci-, said : " Tiicir Lordships woidd not liavc nuuUMiny reference to these initial procecd- injfH had it not been that, at the liearin}; of the appeal, their time was cliiefl}' occupied by an eiidea- vonr on the part of ai)pellant cor- poration to ivr<;ne that, as matter of fact, they had not, in any of the yearly rolls upon which these assess- ments were made, valued au<;ht be- yond the land occupied by the railway, and that they did not de- sire to incluile, and had not in- cluded, the bridge or other super- structures in the estimate. Tlieir Lordships pur[)o.sely abstain from laving down any rule as to the points which an appellant may com- petently raise under an ai)i)eal 1»y leave from the Supreme (.^ourt of Canada. That must depend upon the special circiunstances of each case. " But it must be under.stood that parties who get such hnivo, upon the distinct representation that they desire to raise a particular que.stion of law of great and general im- portance, cannot be permitted, at the hearing of the appeal, to change front and say that no such (piestiou arises, and to argue that the case turns upon a question of fact which the Supreme Court has wrongly assumed or decided. If the apel- lant corporation, in petitioning for the exercise of Her Majesty's pre- rogative, had stated the same case which they attempted to present in argument, it is almost matter of certainty that leave to appeal would have been refusid." In reference to the above, in Sheo Singh Rai v. Mussdmux Dakho, April 13, 1878, L. R. 5 Ind. App. p. 114, Sir M. E. Smith [there being also present Sir James Colvile, Sir Barnes Peacock, and Sir R. Collier], in delivering the judgment, and after stating the facts fully, saitl : " Under tho cir- cumstances in which this apiniil to Her Majesty conies on to be hianl the ap[K'llunt ought to be prirlml,.,! from insisting on his oljjectiou to tile decree on the grounil of jts being declaratory only, fa lii,, petition to the High Court for leave to appeal to Her Majeslv.thc a[)pellant made no reference in the groumis of appeal to this objection to the decri'e. The leave ;;raiitp(l by the High Court having lieeoiiU! abortive, in consequence of tlie deposit for costs not having licpii made in due time, application to this Board for special leave to ap- peal was made. Jn the petition for this leave again no reference was made to this objection, but the np- plication was based on the gronml that iniportant questions alfectinf,' a large community were in\olvu(l in the decision sought to be np- pealed from. This petition, after fully stating the conclusions of the High Court upon the evidence as to Jain customs, contains the follow- ing passage : • The petitioner now humbly submits that the suit is one concerning ])roperties of large value, and involving tpiestions of great importance to the sect of the Jain couuuunity to which the petitioner belongs.' Their Lord.ships having on this groimd advised Her Ma- jesty to grant special leave to ap- peal, they are incited, when the appeal comes on to be heanl, not to examine or consider the im- portant questions thus indicatt'd, but to reverse the judgment on a ground which altogether excludes their discussion. 'J'heir Lordships do not by any means intend to lay down, as a rule, that no ([uestious can be raised a., the hearing which are not indicated in the petition for special leave to appeal ; but in the present case, considering the whole course of the proceedings in the court below, to which tbey have fully adverted, the importance of the questions upon which the appellant obtained special leave to appeal, and the somewhat technical 1 B.N.A. ACT, s, 101.~BYE-LAW CASE. 463 character of the objections rnisod to the iniiintennnce of tlio Hiiit, they think tilt' apijelliint ought not at this Ktiifjo to bt! allowed to insist that by rciisoii of these ol)jectioiis the (lec'ree npijcaled from should bo revcrsetl." Canada Atlantic Rau-way Co. AND Daniel C. Linsley v. The CoiieouATioN of the Citi,- OF Ottawa, May 17, 1880, ll! S. C. B. 365, nfflrining 12 O. A, R. 234 and 8 O. R. 201, and the same appellants v. The Cor- poration of Cambridge, June 11, 1887, lo S. C. R. 219, affirming 14 0. A. R. 299, reversing C. P. 110. B. 392. 1888,21 .liily. [Present, Lord Mnfiingliten, Sir James Ilannen, Sir Barnes Peaeock, and Sir R. Couch.] Leave was granted. The qwestion in both eases appeared to be the validity of a bye-law passed by the respective nnniicipalities for granting a bonus to the appellant railway company in the form of debentures. Sec 11 Can. Gaz. 394. The appeals were ultimately aban- doned. Uassels' Digest, 1893,p.888. In Clark v. Carson, April 30, 1889, 20 S. C. R. 034, affirmed S. C. B. C. 20 Aug. 1885, reversing a decision of the Chief Justice, the question referred to the B. C. Land Ordinance, 1805, with re- spect to tlie diversion of unoccu- pied water. 1889, Dee. 14. [Present, Lord Halsbury, L.C., Lord Hobhouse, SirRanies Peacock, and Sir M. E. Smith.] Leave was granted. The appeal was abandoned 7 April 1891. In M'Laren on Shields v. Leacock, S. C. 30 April 1889, Cassels' Digest (1893), p. 004, the question was a complicated one as ' to a paituersliip of lumber millers and saw millers carried on in diffe- rent names. There was a difference of opinion in all the courts. 1890, April 20. Leave to appeal granted. Case compromised. RoniNsoN V. Canadian Pacific Railway, July 23, [1892] A. C. 481, reversing in part the do- ci.sion of the Supremo Court of Canada, 14 S. C. R. 105. Lord Watson, in delivering judg- ment [there being also present Lords Maenaghlen, Morris, Han- nen, Sliand, and Sir R. Couch], said : " This action of damages was brought by the a[)pellant . . . the widow of Patrick Flynn, on her own behalf, and as tutrix of their minor child, upon the allega- tion that the death of her husband, which occurred (m the 13th Nov. 1883, was the result of bodily in- juries sustained by him on 27th Aug. 1882, whilst he was in the service of the respondents, through the negligence of their employes. The case was tried in April 1885, before Mr. Justice Uoherty and a jury, who found for the appellant and assessed the damages at .'i?2,000 to herself and 31,000 to her child. The appellant then applied to the Superior Court, sitting in review, to have judgment entered in terms of the verdict, and the respondents moved for a new trial. The Court rejected the appellant's application, and allowed the respondents a new trial, upon payment of the costs of the motion, upon the grourd that the presiding judge had wrongly directed the jury that, in estimating damages, they were entitled to con- sider the anguish and mental suf- fering of the widowed mother and orphan child. That decision was, on appeal, set aside by the Q. B. Quebec, who gave effect to the ver- dict with costs of suit. On appeal from the Q. B. Quebec, the Su- preme Com-t of Canada reversed their decision, restored the judg- . ment of the Superior Court in re- view, and condemned the ai)pellant in the costs of the appeals to the Q. B. and to the Supreme Court of Canada. On a second trial in Nov. 1888, before Mr. Justice Davidson, the jury again found for the appel- lant with $4,600 damages to ber< ROIIINSON V, CaNAOIANj Pacific Railway. Canada Atlantic Uah.way Co. AND Daniel C. LiNSLBY V. C'OBPORATION OP City oif Ottawa. n> !i Clark t*. Carson. M'Laren ob Shields v. Leacock. V\\ i\ < ■' f 1 yi 'v (1)1 Robinson v. Canadian Pacific Railway. i h hi m 1 .1 : , i ': 464 B.N. A. ACT, s. 101.— LORD CAMPBELL'S ACT. self and 82,000 to lier child ; and thoroiipon the appcUant moved the Superior Court in review lor judj^- inent. 'I'he resjiondents moved in the same court for (1) a new trial ; (2) arrest of judgment ; and (.3) judgment in tlieir favour tioii ob- stante veredicto. The second and third of these motions were rested on a plea, tJien |)ut forward for the first time bv the respondents, to the effect that more tlian 12 months liaving elapsed between the death of Patrick Flynn and the date of the injin'ies which are said to hav(> occasioned it, all right of action com- petent to him had been extinguish- ed by prescription ; and that by law the right of the apjiellant to recover damages for such bodily injuries was also extinguished be- fore his di'iith. The court, as its decree bears, heard parties upon nil of these motions, and by a majoiity of two to one dismissed the respon- dents' motions, and gianted that of the appellant, with all costs of suit not i)revionsly adjudicated U[)on. On appeal by the respondents, the Court of Queen's Pencil, consisting of five judges, unanimously allirm- ed the judgment of the court below on all points with costs. " The case was then carried by appeal to the Supreme Court of Canada, who, on the 22nd June 1801, by a majority of four to one, reversed the decisions of 1 he Queen's Bench in appeal and of the .Sujjerior Court in review ; the pevson injured by tlio commission of an offence or a quasi-offenee dies in e(>iisei|ucii(v, without having obtained indeniiiily oi' sati; faction, his consort and lii'i ascendant and descendant rclntioib have a right, luit oidy within a year after his death, t(> rccimr from the person who eoinniittiil the offence or (piasi-offence, or his rei)reseiitatives, all damages owi- sioned by sucli death." By <^->.: 22(52 of" the Code, actions U " bodily injuries " ai'e pr<'sciilieil by oiU' year, " sa\ ing the sptTial provisions contained in art. 10511 and cases regulate Jiulicial Committee did not doubt, i^ 2.110 that resort must be had to the pre- Robinson v. exi.sting hiw m all instances where ^anadian »i ri 1 i ■ • • 1! "acipic kail- the Code contains provisions ot ^^^ doubtful imjiort, or u.si^s language ■which had previously acquired a technical inc^aning. JJut an appeal to earlier law and decisions for the purpose of interpreting a statutory code, can only be jxistiHed on some .special ground. " The respondent? argued, that in the event of judgment being against them upon the question of the widow's title to sue, the case ought to be sent back to the S. C. of Canada in order that they may be heard upon their motion for a n<'w trial. Having now the record • before them, their Lordships are of opinion that the coiir.se thus sugg(^ste(l was no longer o[)en. The judgment appealed frcnn bears, mfcr alia, ' that the motion by the appellants (mimely, the jiresent re- spondents) for a new trial and in arrest of judgment should be, and the same were, respectively refused and dismissed.' As it st-inds, that was an cxi)ress adjudication upon the very point wliicdi the respon- dents desired to have ndieard, and the S. C. of Canada can have no jurisdiction to review it. In order to meet that dilliculty, the nspoiidents suggc^stcd that the de- ccrniture was inserted /icr incii- riain, and that the S. i). might strike it out upon a motion to correct their judguKMit." But Lonl Wat- .son .said : " Without clear grounds for doing so, their Lordships are not inclined to protract litigation ali-eady excessive, considering that all the judges — seven in number — wdio heard the motion in the courts of Quebec Province were of opinion that the evidence warranted a ver- dict against tiie respondents; that one of them only thought the ver- dict ought to 1)(! disturbed ; and that, upon the single ground that the damages awarded were too large, their Lordships .see no rea- son to sujipose that the judgment of the S. C. was incorrectly framed, or that any injustice will be done G G ■100 B.N.A. ACT, s. 101.— MUNICIPAL DUTIES. KoniNSON V, Canadian Pacific Eail- WAY. !'H ii?l1; ■\ M lil i!:i. lil! Corporation OF Rai.eioh V, "WlLlAAMS. HofiOAN V, ksqi'imai.t am) Nanaimo Ram.- WAY Co. by their finally disposing of the case at this stajie." " Their Lordships will therefore mlvise Her Majesty to discharge the judgment appealed from ; to restore the judgment of the. Su- perior Court in review, dated 31st Jan. 18H9, and the judgment of the Q. B. in appeal, dated 19th June 1890; and to order the re- spondents to pay to the appellant her costs of the appeal to the Su- l)reme Court in the second trial. The respondents must also pay to the appellant her costs of this ap- peal." In Corporation of Raleigh v. Wir.r.iAM.s, June 28, 1892, 21 S. C. R. 103, reversing the Ct. of App. Ont. and restoring Fergu- son, J., Williams sued the town- ship of Raleigh for damages for injury caused by flooding, caused by (1) neglect of the municipality, in breach of (heir statutory duty, torepnir a drain known as Govern- ment No. 1 dr.'liM; (2) the negli- gent construction by the corpora- tion of another drain, known as the Bell drain No. 1. The judge of first in.stance gave judgment for the j)laintiff, confirm- ing the findings of fact of the re- feree and granted a mandamus On 30 June 18^1, the Court of Appeal reversed this decision. On 28 June 1892, the Supreme Court, 21 Can. S. <. . R. 103, restored the order of f!ie judge of first instance, except af to a mandamus. 1892, 3 Dec. Special leave was grnnted to ai)peal to Her jNIajesty on the ground that the appeal in- volved serious (|ue,stions of ])ubli(! imi)ortance depending on the true construction of the Ontario statutes relating to the powei's and duties of municipalities. 3 Aug., [1893] A. C. 5 JO; (i3 L. J. P. C. 1; (59 L. T. 500, the Judicial Committee discharged the order of the Supreme Court and lower courts holding that the case should be ref<>rred back to the county court judge to determine the damage caused by the ovcitlow from Government drain No. 1, on the ground that the IMunici|iiil Act R S. O. c. 184, ss. o83, oMJ, .isT^ 589, imposes upon every miniici- pality the duty of preserving jind repairing drainage works within its own limits, whether the dniinni'e work is a work constructed bv the municipality or a work constriictcd by the Government before the mnni- cipality was incorporated; and that having regard to the purview of tiie legislature of Ontario in the Muni- cii)al Act, an action lies at the suit of any person who can .^liow he has sustained injury from tiie nou- performance of this statutory (hitv: i)utthat it was most reasoniibletiiat no action should be brought forj* lUiUKlamusto compel a mimicipalitv to execute rei)airs until nfter iioliro in writing has been given to thcni. Yet sub-see. 2 of see. ')S'^ did imt take away the right to hring ini action for damages if no notice was given. Secondly, as to the Bell (iniin,tii:it the action must be dismissed witii- otit prejudice to any (dnini on tiic part of the plaintiffs to have the amount of damage to tiieir pro- perty determined by arliitration. For any damage " neeessni-ily ic- sulting" from the exercise of tln' .-^tatiiiory powers of tlie mnniui- pality (sec. 483), and for anv damage tlone to the plaintiff's pro- perty " in the consti iictiou of drain- age works or conS'\,'i,'ie thereon" (see. 591), the plaiui ill's must seek their remedy by arbidation, which was not done here. In HOGOAN V. ESQUIMAI.T AMI Nan.aimo Railw.vy Co., April il, 1892, 20 S. C. R. 23-}, alllrniinj;. Dec. 13, 1890, S. C. B. C. alRrniiii:; Walkcm,J.,the question wasastotli.' construction of the Agrienilurd Sit- tiers Act of British Coluinltia, 17 Vict. c. 14. Ti:e ai)pelhuit elaiimil, as an actual settler for ngricultiiriil purposes, that he was entith'dtoJ right of pre-emption over ei'rtiiiii lands included in a Government B.N. A. ACT, 8. 101. -PUBLIC ROAD CASE. 107 crant for tlie jjiirpose cif the re- spondent-s' niilwiiy. 1SS)3, . . Special leave granted. May :\, [1891] A. C. 429; 63 L. J. P. C. 97 ; 70 L T, 888. Jiulguicnt appealed from affirmed with costs. In Un'iox Bank of Canada v. O'fiAUA, 22 S. C. R. 101, 20 Nov. 189.3, the point was whether evi- (Ipnceof the contract was admissible. The nction was brought by tlie Bank ngainst O'Gara as endorser of promissory notes. I8i)J, lo March. Special leave allowed. 22 Can. Gaz. 567. 8 Dec. 189 1. Compromised, and appeal disuiisst'd. In Cas(;rai\ v. Axr-AXTic and Xokth-Westeun Railway Co., appeal from a decree of the Q. B. Quebec, 2.3 Dec. 1892, which re- versed a decree of the Sup. C, Jlav 16, 1891, the allegation was that the railway comi)any had violated the provisions of their Act in stopping up a lane called Blache Lane, city of Montreal. A ques- tion WHS, whether the Attonioy- (ieneral of Quebec had power to discontinue the action : also, whether the lane was a public lane. 1891, 23 Can. Uaz. 202. Appeal allowed. Feb. 9, [189.J] A. C. 282, 72 h. T. 309. Judgment of the court below varied as to costs ; Otherwise iillinned. AjJiielhints to pay the costs of the ai)i)eal. Att.-Gex. of Ontario v. Att.- fifx, OF Dominion and Distil- IKRS' AXn BliKWERs' ASSOCIATION, ^IS. C. 11. 170. On special re- ference to the Supreme Court by the Governor in Council In re the validity of Ontario Liquor Prohibi- tion Enactment. 1895, 10 ;Mav. Special leave fininted. Secante,p. 102, audposf, Appendix ('. Ill ToitoNTo Bank Co. t-. The Qlken, the question concerned a 'liity on steel rails. 1895, 20 July, was granted. Special leave TTnion Bank op Maclean v. Stewart (Smith Maclean niis-en-cause) was an appeal from ''"*^^^'**'''- S. C. 26June 1895, in which Pour- nier, King, Sedgewick, JJ., Sir Henry Strong, C.J., and Tasche rean, J., dissenting, reversed the Canada v. judgment of the Q. B. Quebec (.Sir O'Oaua. A. Lacoste and four judges) and the judgment of the Sup. Court (.letto), which latter judgments condemned the defendant Maclean to pay Stewart 810,261 in the following circumstances : — The petitioner Stewart, Macle.-in, and Smith were partners in a com- mercial firm at Montreal. Under the articles of partnership each C\s(in\iN v partner was entitled to tli(> interest Atlantic a.nu on his ca|»ital at the rate of 7 per Noinii- cent. IMaelean's cai)ital was ^Vkstkrn .M,180, Stewart's .S25,292, and I^ailwav Co. Smith's .'?30,350. There was a clause giving power to Maclean to withdraw .SO.OOO anuiiallv, and Stewart and Smith 83,000. The term of partnership was five years. At the end of U years the three partners abandoned the property to the creditors of the coin|)any. To Stewart's credit there was 817,185, to Smith's credit §27,329, iind Maclean's account .showeil a del)it of 829,079. Maclean made an oflEer to the creditors to purchase the estate and assets of the firm by paying the privileged creditors and the insolvency expenses in full, and tlie ordinary creditors at the rate of 50 cents in the dollar (10s. in Att.-Gkn op the pound), on the condition that Ontario v. the assets were transferred to him •^tt.-Gkn. op 1, 1 il 1 J- 1 i)0.«INION AND personally, anil that a (Ii.seharge, Dig,,,, ,g„j,- should be given to him Stewart, ^nd Hukwkrs' and Smith. The creditors accepted Assocmtion. the offer and executecl a discharge. Neither Stewart noi- Smith were parties to the negotiations or con- veyance from the creditors' curator to Mmdean, but they knew Macdeai- had made the offer. Subsequently the petitioner Stewart sued Maclean for his overdraft, 829 O^O. Jette, Qp,.;,;,' J., held that the drawings made by GO 2 Toronto ISank Co. I'. Tub i ll I 'j\ 468 B.N. A. ACT, s. 101.— TRUSTEE AND COSTS. Maclean v. Stewabt. 'i i I 51) )•]' ' ;»: H I ! Venkata Narasimiia Appa Row v. The Court of ■\Vards. Maclean and the other partners were advances properly debited to each partner's capital account, and that, apart from the right of the creditors, they were entitled to an adjustment of account inter se. He also held that Stewart, by the abandoinneut to creditors, did not divest himself of all rights which were personal to him to call upon his partners to equalise the loss between them. The entire capital being lost, Jette, J., decreed Maclean to pay one half, and Stewart and Smith one quarter, which woiked out that Stewart should be paid 810,201 by Maclean. 1805, August 5. [Present, Lord Watson, Lord Davey, and Sir R. Couch.] Specitd leave to ap- peal was allowed, after hearing the petitioner and respondent. Finality of Decisions of the Judicial Committee. When a decision of the Judicial Committee has been I'epor^ed to the Queen, and embodied in an Order of Council, it becomes a de- cree or order of iha iinul Court of Aj)pcal ; and it is the duty of every suborilinate tribunal to whom the order is addressed to carrv it into execution. See Pitts 1'. La Fontaine, Nov. 20, 1880, G App. Cas. 482 ; 50 L. J. P. C. 8 ; 43 L. T. 510. 'J'his was a case in which the respondent Fontaine, trustee in liquiilation of the affairs of Morton & Co., contended he was not liable for costs beyond the assets in his liands. He was di- rected to ])ay the costs by an order of the Judicial Commiltee, 19 May 1880, 5 App. Cas. 50 1. The order was, " That the respondent shouhl pay the appellant Pitts and his wife all such costs as were incurred by him or his wife in the consular courts of and incidental to the orders under ap[]eal, and the costs of opposing the rules on which Buch orders were made, &c., and the respondent is likewise to pay the appellant the sum of £411 2*. 4y the stjitntesol' amendment. The House of Lords exereise.s a similar power of rectifyin}^ mislakes made in draw- ing up its own jnd;j;nients, ami tiiis court must jh>hsoss the .same autho- rity." After (.itiiif; the eases in the House of liortls, liis Lordship con- tinued : " It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being tlone by a court of last resort, where by some accident, without any blame, tjie party has not been heard, and au order lias been inadvertently made ns if the ]iarty had been heard.". His Lordship then .'aid the appellant not appearing the judgment should liave been (lis niissid [sec Lord Clare, L.C., in Goodwin r. Uie.sler, I7!)4, Ridg. L. and Sch. Rep. p. 381], for if in the courts of last resort judg- ment of atlirmaiice be pronounced, " the matter is iiiial, and that judg- ment stands as a pivcedent in what- ever points were raised in the case." And although in this ca.se the ob- jectional form iini)uting ailirniance •was followed, yet in the circum- stances their Lordshii)s advised the appeal being restored, amending the order of the 16th April 1834 to that effect. In Hebbert v. Pukchas, 20 April 1871, 3 L. R. P. C. GCl, p. 671 {see above), petitions were specially referred to the Privy Council, on the averment of the petitioner that in a former hearing of his ease by the Privy Council, the judgment had been given ex parte by reason of his want of IMicuniary means, and the decision was at variance with foriner deci- sionsof the Committee. Their Lord- ships declined to hear the petition. See also eu parte Kisto Nauth Boy, Feb. 2, 1869, 2 L. K. P. C. 271. There the agents of the n- spondent neglc(;ted to appeiir.aml the appeal c.v parte was reversed. On the respondent petitioning for h rehearing, the .Judicial Ci)iiunittcc refu.sed, after the Order in ('(mncil had been drawn up, to relunr ihe appi'al. Refused in such cases as the following ; — CuBHY V. CuuuY, in S. C. 13 IMarch 1880, Cassels' Digest, 77s. The Ct. of Appeal, Ontario, 1 0. A, R. ()3, held, aflirining Spraggc,("|i.| 2() CJ rant 1 8, that money reeeiviid for .sale of land was received for the joint benelit of two brothers. The S. C. were equally divided. 1880, June 18. Special Itwe refused. Special leave refused in DuMoi:- i,iN I". Langtuey, S. C. Nov. 8, 1880, 13 S. C. R. 2oH, nppeai brought per Saltnm under S. ('. A. A., 187S), s. 0, to the S. C. Ironi judgment of Chancery l)iv,, On. tario, 19 Dec., 7 O. R. ■»!)!), (ill, 1884, which the S. C. aflirined [Sir W. Ritchie, C.l., Fournier, Ilcniy, Tascliereau, and Gwyniie. J.I.]. An action was brought hv Laiif;- trey and others against Duinoiilin, the incumbent of the rectorv u/ St. James in the city of Toronto, to have certain lands deeLircd to bo held by him not only for him- self, but for the benelit of the other rectories in the city of To- ronto. Ferguson, J. decided in favour of the claim, which decision was aflirined by the Chancery Di- vision. An ai)peal was taken in the name of the defendant, but in the interest of the vestry, parishioner.'!, and churchwardens of St. James' Church, who, as the rector de- clined instituting on his own \x- half an appeal from the judgment, obtJiined an order from the S. C. enabling them to apjieal in the name of the rector upon tlieir iu- deninifying him against ail costs. The claim of the vestry and ehiiich- wardens was, that they and the parishioners of the said rectory are U.N.A. ACT, K 101.— REVIEW OF NINE .IliDfJES. 173 the f «(•/"" que hustciit of the lands iiu'iitupiii'il in llic plaintiff's stute- inont of claini, iind that the rci'tor of St. JaiiU'S iiolds till' same nicroly as a triistt'f to their use, and that, thficforc, the lands in rcsjifct of wliitli llif suit has been instituted do iKit I'oiiie within tiio ()[)erution of the statutes, chap. 10., ns amended livciiap. 17. of tile statutes of tiie hUe piovime of Canada, [jassed in the M, Htiiruiinf? [Gwynne, J., (lissi'iitiiif:;] I lie t'h. D. Ontario [Fer- (.'iison, J.J, 5 0. 11. 122. LiNvvc to iiplK'al direct to the S. 0. was given iiiidci' see. (5, 8up. Ct. Amendment Aft, IH"!), 12 V^ict., on the ground tiiat till' Ct. of App. woidd be bonud liv tile case of Cameron v. Kerr, 3 0. A. U. .'}t). Ferguson, J., gives tlic faiLs thus: Tlie bank held the t'oininert'iid [)ap('r of the firm Lew'i Motfatt i'or advances. The firm njipiii'il for further advances for a liuiitcd period, and it was agreed s\k\\ additional advances should be made upon the bank receiving security for the indebtedness of the linn, which was 8153,011, A mortgage on land and premises was executed by the firm. On the same day an agreement was exe- euted betWeou Lewis Moffatt, K. M. Moifatt, and George Moffatt, the defender of the 1, 2, and 3 pai-ts resi)ectively, and the bank. This recited the iuilebtediiess of the firm, and tlie throats to clo.se the ac- count unless the bank received further secuiity. This agreement contained a covenant by whi(.'h the parties of the 1, 2, 3 parts declared tiieniselves jointly and severally in- debted to the l)ank in the sum of •'^10,000, to be well and truly paid nitbin uiue months as secured by a money bond of exen date. The firmwns declared insolvent 12 Aug. 11^75, nnd the bank declared there Was u deficiency in the property mortgaged to the extent of 850,00 and that they were bound to bo paid the 810,001) by the defendant George Molfatt. Tlu; defendant alleged he was induced to sign on misrepresentation made to him by one of his co-obligors, that it was to secure the hank against any loss which might arise by reason of the bunk nd'raining from tin; rcigistra- tion of the mortgage, or by reason of any over valuation oftheprop'rty embraced in it. 'I'he S. C. [(hvynne, J., dissenting] held the defendant bound by the bond. 18H5, .Vov. 1 1. [LordMonkswell, Lord Hobhoust^, Sir Barnes Pea- cock, and Sir 11. Conch.] Special leave to appeal refused, on thegronnd that the appeal involved only the qu' lion of the construction of an agreement between the parties, and was not of sulHeient public interest or importance to warrant leave. Grand Trunk Railway v. Beckett. Special leave refused. [See ante, p. '111.] Montreal Passenger Rail- way Co. V. Parker, 22 June 1885, S. C, Ca,ssels' Dig. (1893) 731. Claim for damages for in- juries incurred by being thrown out of a waggon crossing a railway track. Plaintiff alleged faulty con- struction of the track. Sup. Ct. [Torrance, .T.], found that the track was in bad order, and gave S2,oOO damages. The Q. B. Quebec reversed that find- ing. The S. C. reversed the Q. B. Quebec, Strong, J., dissenting. In the Privy Council, it was urged that the question involved a question of law of importance, namely, whether the bye-laws of the city of Montreal making the railway company liable for damage, however caused, were valid. This construction was upheld by the judge of first instance. The intermediate court and the S. C. decideil the matter, not on the law, but on the question of negligence in allowing the track to be in a faulty condition. MOPFATT V. MuRCH ants' Dank of Canada. Grand Trunk Railwat v. Beckett. montrkat. FASBENaRR Railway Co, V, Parker, l'7fl UNA. ACT, s. lol— niOWNS llUiUT OF AIM' ;i ■ I I i MnSTKRAf, Pabbknukr Ram-wav Co. Parken. Att.-(}rn. oi- Nova Scotia t'. CiKiidonv. I '1 1HH5, II Nov. [LonlMonkswi'II, liurd l[()l)li()iisi', Sir Hiirncs I'oii- ■ cork, 1111(1 Sir H. Coiicli. j Spt'cml It'iivc to a]>|>(Ml rt'l'iiscil l»v the Jii- (liciiil roiniuiltt'i>, it ii|)|itMriii<; tliiit the qiiostioii liiid bi'cii (Iwidcd on II piiif (iiicstioii of t'lU't. Att.-Gen. of Nova Schiia c. OuKLioitv, t'liMsels' Diji., 727. fn tlii.s case (!n'<;ory olitiiiiicd ii ver- dict ugiiiii.st tho llulit'ax {'oiiipaii}' for SHt),()UO, 8. C. N. S. IHHH, April 3. [Lord JJlack- liiirn, Lord Hol)lioii.'iirn said lie did not know that the Crown had any prerogative to appeal from a judf^nieiil against it.self any more than anybody else ; that tluire had been many instances in wliicli parlies repre-^enting the Crown have asked lor and obtained special leave, but his Lordship %vas not awair of any instance in which it has been asserted thai merely be- cause the party desii'ing to appeal liai)peneil to be the Crown there was a right to ap[)i'al. [^S^ce Can. (Ja/,.1 Lord Hobhoiise stated the facts as follows (11 App. Cas. 229; f).-) L. J. P. C. 40; 55 L. T. 270) : — The I'ompany appealed to the S. C. Canada, and the only real (juestion was whether §40,000 of the 880,000 should be paid to one Hill instead of being paid to Gi'egory. It was a matter of indifference to the Halifax Com- pany whether they jiaid Hill or Gregory, therefore the comiiany appealing were acting on behalf of liill, and it was agreed Hill really rejiresented the Government of Nova Scotia, who now ai)peai' by their Attornev-General. Gregory obtained §40,000 out of the §80,000 from another source ; he could not obtain that over again under his verdict from the Halifax Company, so the ca.se was confined to the § 10,001) left, and which ih,. G„v,.in. nieiil of XovH Scotia \vii> nlim,, interested in. When iln' r;,^^ came itel'ore the S. {'. it wm tlioiight better to have tlic iva] parties face to face ; a sjH'ci.il u^riv,,. merit was made for liiat pur hm. in the, presence of StrniiL'. J., iiml with the .sanction of the court upon that agreement the .Vttonicv- (ieneral for Nova Seotii ■.. Ji, and cojistMited that the p „|' No\a Scotia should be aii liv tlieoi'der to be made on the n|i|ii'ai. Then the agreement gois on tusiiv what the court is to do, and it i, the form common to arliitnitiun agreements. It does not say tliiii when the Attoiney-deiunii of Nova Scotia has Im-cu siiiistitiitcd lor the Hidifa.v Coiiipany as a IHiity the court is to exei<'iseiill it^i ordinary juriscliction in iippeal, liiii it goes on to give the court a num- ber of spei'ia! [lowers, and to restrict its powers in .sonic icsppci'. The respondent's right (that is Gregory's right) is to he iimitwl tu a claim for damage'* oi' ciTtiiiii grounds that are mentio The court receives special p dc- termining the quesfioi iv- gard to all eipiitableiis well aslcnjil rights of the parties arisiiii; fniiii tlu! facts and documents in cviilonii' without reference to the piwiiiin^'s or the jiresent state of the rwoiil. Well, that obviously point.s to ii question referred tout considcialiie length, namely, the question of the validity of an agreeuient hutweeii Gregory and Hill, under wliicli Hill claimed the S40,0J0, and oinvliieh an opinion has been exprc.s.'t to iniliK'if tin-Ill to di;|);irt fiiiiiillie oniiimry nilc, tbiit pi-rsoiis wiio liuvo gone to tin- Sii|)n'iii'.i I'liiiit of I'iiiiiida, and iiavo tlu'n^ failiil. sliiiU not |).'oi:0L'(l to apiii'al 10 llci' M iji'sty in Council ; but tlicv ilo not };o into lint, bi'iMUsc they oonsi ii'r tluit in tliis (rasiMiii iipiK'iii ilo.'s not lie t) tlii; (^uccii ill CoiiiiL'il." A[ipi'al disuiissod with ciists. KkaUN'KV r. ("llEIOI.MAX, Fell. 17. Hsd, 11 S. C. 11. Xi, atlirinin-^ 1't point. [5 Oi'o. 2. c. 7. is repealed by S L. 11. Act, IHS7.1 IHS(5, Nov. i;{. Special leiivo Kkarnby ii. Clli!KI,.\IAN. refused. AuiMV r. Till; (^iii:i;v, 17 D'c, .Vbpin v. Tub 1HS7, 11 S. C 11. 7;U!, which (4UBKN allirnied (}. 1). {^) „'l)ue. A ipiestioti of I'iK't wbelber tbo Oovernnieiit had iiiidoit;ikeii a contract to siipjdy waggons to carry bay. The court of first instllllet^ held the (Jovenunent had so <'oii*racted. The t^. B. (Jiiehei! reversed tliiit decision, and the .S. (?., without onterin" m, otheinerit.s,followcdtlio riiliiiL; ol' !b' (I H., the jiidginont h.'iiig wliollv founded upon (pies- tious of fact". [See 10 C.in. (laz. 27.1.1 1MS7, D.v. 2!). [Present, Lord Fit/.gcraid, Lord Ilobbouse, Sir Hai'iies Peacock, and Sir K. Couch.] Sp.'cial lea\(' to apiieal refused. Kx( iiANGE Bank ok Canada i\ Ban-que uii Peijpi,e,2J .funo 18H7, S. C; Cas.sels' Di-., 1H!);{, 70. Tbo Snpreiii.' Court was e(|iially divided [Hilcdiio, C.J., Foiiniier and Henry, .i.J., for allirinance, Strong, Tuseboreaii, and (Jwynne, JJ., for revelling] as to wb 'tiier Craig, lb;' 111 loager ami pi'.sidciit of tbo lOxchaiige Hank, bad authority, and was acting within the scop;; of his duties in aeeopting fourehiMpics of tr. which were not to bo paid until a siibse(|iieiit date, and which the BaiKino dii I'eiiph^ had dis- coiinteil. The Q. B. Quidiec lidd tht^ Kxtdiange Bank liable. Tiio S. C being erpially divided, this decision stood. 1HS7, July 22. [Presont, Lord Ilolihoiise, Sir Barnes Peacock, Sir .lames lliinnen, and Sir 11. Couch.] Spiioial leave refused. Lucy MacQi:ee.v v. The QuEEX, Dec. i;{, 1887, 10 S. C. 11. 1. The judgment of Gwynne, J., in the Exchecpier Court, Ontario, stood; the S. C, composed of llilcliie, C.J., Strong, Fournior, K.XCH.\N(1R JVVNK OF C.\NAI).\ V. Uanijue UU Peuplb. Lucv Mac- Queen V. Tub QCEEN. •I '■I II 'i II iiliki ^iil! ,p , Lucv Mac- QUKKN V. The Quebn. Beaudet v. North SiioitB Railway Company. FonsvTH I'. Bunr. 47H H.N.A. ACT, s. 101.— AWARD CASK. Hciirv, Tasfhcrcau, and Gwyniic, JJ., bein* equally divulod. 1888, Jidy 14. Lord Hob- luniso, Sir. K. Coiicli, Sir Barnes Peaeoc'k. IJefused special leave to appeal, as it appeared to their Lordships the proper person did not seoui to be appealinf!;, the MacCineens havinfT conveyed the whole of the lands to the oirieer appointed to aeipiire the lands for the Hideau Canal, in fee, for £1,200. IJeaudkt r. Xoirnr Shohk Railway Company, Uce. 11, 1887, 15 S. C. E. 41, reversing Q. B. Quebee, restoring judg- ment of the Suj). Ct., holding that the arbitration was ipiito regular, and the awanl perfectly good anil binding on the parties. The railway company applieil for special leave to appeal. Their contentions were: (1) That the arbitrators did not at their first meeting ajjpoint a time f(ir a final meeting; and (2) That the description of the land differs from that in the submission. it was argued that the Q. U. Quebec! had found that there was a fatal discrei)ancy between the terms of the notice and the award, the material thing being the cor- rect desci'iption of the land. 1888, 11th Feb. The Judicial Committee [Lord TTobhouse, Lord Macnaghten, Sir Rarnes Peacock, and Sir \l. Couch] were of opinion this was an appropriate case for the Supreme Court to settle, and their judgment ought to 1h' final, [Sre iO Can. Ga/,. Ki.J. | It may be noted that if the parties had <'onu) straight from the Q. IJ. Quebec to the Juilicial Committee, t icy would have had a Privy Council decision. FoHsvTii r. lUiHY, June 14, 1888, 15 S. C. 1{. 543 [Strong, Fonrnier, and Taseherean, J J., Ititchie, C. J., and Owynne, J., dis- senting], afTirining Q. IJ. Quebec, which had re\ tTsed the Sup. Ct. The question raised was as to the sale of the Island of Anficosti. Stroiic J., gave the following as tli!' facts:— This action was institiitiMl liy th,. respondent as one of s.'viraj cn- owiu'rs of the Island of .Anlicdsii f(tr the licitation of tiie pi(i|H.|tv, and the appellant, iieing also owium' of a share in the islam!, w;is a ij'. feudant in the action. The npi);'!. hint pleaded no plea or (Icrcnci' raising any (piestion as to tlii'vnli. dity of the plaintiffs title, eitlurliv challenging the constitiKioMiil ili;i. raeter of the charter giaiiti'd (hv the Dominion) to the Aiitimsii Conqiany (tlu^ plaintilfs iiiiiiicdiiiti. niifrnrx), or by inipeaciiiiii; tlic legality of the company iiiiilcr ilii' provisions of the charter, Imt al- lowed a judgment onleriiig thii licitation of the property to h;' nii dered siifi silcntio. I'insiiaiit fn judgment thus rendei'ed, the piu- perty was sohl an jjordship was convinced that lln' charter of the Anticosli ('(iiii|i;inv was liltrii vires the Douiiniiin.aiiil also that the company h:el iina'illio- rity to acquire the properly el' tli'' respondent until the anioiinl nf share ca|)ital provideil for hy lli'' Act of incorporation had !)eiii in good faith suliseribcd fia-, uiui 10 jxrcent. thereon bond^fiifv paid up. B.N. A. ACT, s. 101.— IIY. COY'S CONTRACT. 479 neither of which pre-reqiiisites hiul lipcn I'Oinplicd with. 18S8, J Illy 28. Sir Barnes Pcn- cwk [there beinji^ also present Lord Hohhouso and Lf)rd Maenaghten], in refusing,' special leave to appeal, saitl : If tin; np]>ellant had oppo.sed tlic graii; of the deeree on the (rrouiiil that the sale to Bury was not viiliil, the constitutional ques- tion mi<;ht have been argued, but tlmt opportunity not having been tiiiien the (piestion could not be re- oiicneil. 11 Can. Gaz. 418. McMiLf.AN (phiintiff) v. The Gkaxo TiurxK B.mlw.vy, March IS. 1889, 1(5 S. C. 1{. 513, reversing 15 0. A. 1{. U anil 12 O. 11. ID.'J. This was a claim for (hiniagc to ptoiisscjit from Toronto to the town of Jk'(ii('j;or (I'oi'tage La Prai- rie iH'iii}; afterwards stibstitutcd), Miii'itoha. The action was rai.sed a^';;:i;t'. the Grand Trunk Railway Co. and the Canadian I'acific Hail- way jointly. 'I'lie goods were foinid in iKJSscssioii of the latter line wiicn (iiiMinged, and the plaintiff liad accepted a sum of nioiu-y from tlieni as to his claim again.st them. The (trnnd Trinik IJaihvay Co. pleaded a special claiisi^ in their eonfraet that they were not liable fur any damage occurring outside liieir limits. In the S.C.,Strongand T.iMJierean, J.I.. ladd tlmt the loss iia\ini; occurred after tlie transit was over, the condition reduced tlie loiitract looiieof mere bailment, and tile railway was not liable. Fournier fiiiii (Iwynne, .1,1., ludd the com- piiiiy liahle. ]{i|, [18!M] A. C. ;}18; 71 I'. T. 1(53.] 1889, May 17. [Lord Hobhouse, Lord Mncnaghten, and Sir R. Couch.] Special leave to appeal refused. Ale.\.vnder (defendant) v. Vye, April 30, 1889, 10 S. C. R. 501, affirming 28 S. C. N. B. 89. The action was one of libel. The defendant jjleaded not guilty, and the sole (juestion was as to the admissibility of evidence by which it was sought to establish that the defendant was the author of the newspajier article containing th(! libel. The eviy the defendant. 1889, Nov. 9. Special leave re- fused. [ Present, Lord Hobhouse, Lord Mai'uaghten, Sir B. Peacock, and Sir R. Couch.] BiOKFonn AND The Erie and IIuHON Railway Co. v. Corpora- tion OK Chatham, Jan. 15, 1889, K! S. C. R. 235, p. 29(5. Owing to the dilTereiice between the judges of the S. C., the ap[i*'al and cross appeal fioin 11 O. A. R. 32, which varii'd 10 O. R. 257, were dismissed without costs. The action was brought by Bickford and others to compel th«> delivery by the whether they had fullllh (1 certain conditions binding tin I hem as to the erection of a .station. 1889, 9 Nov. [Lord Hobhouse, Lord Macnaghten, Sir Barnes Pea- cock, and Sir R. Couch]. Special leave refused on the grouiul that the appcid involved no question of gicat |)ublic importance. McMillan v. Grand Trunk Railway. Alexander f. VVK. fi'i Bickford and Krib & IIunoN Kailwat Co. V. Cori'drathin OF Chatiiau. 480 IVN.A. ACT, s. 101.— PRIORITY OF CREDITORS. Corporation of pontiac ('. Ross. 1 1 ■•! I I Tub Queen >\ The Mahitimk IUnk. Grand Trunk Kaii.way v. cocnty of IIalten. f I CJonronATioN OK Toronto v. Att.-Okn. 01' Dominion. COIIPOUATION OF PONTIAC V. Ross, Marcli 10, 1890, 17 S. C. R. lOG, !imrininvithstanding sec. 75), R. S. C. (1880) c. 120., and, se- condly, was the deposit of $45,000 a Crown debt at all. The S. C. he'd, reversing S. C. N. B. [Sir Henry Strong, C.J., di.ssciitin Corporation of IIalten were ui- titled to recover the whole auiuiiiit of a bonus paid to the llaniilton aiul North-Western Railway in uiil of the road; the condition of tin' bond being that if the raihviiv ceased to lie an independent runl within twenty-one years the t)onu< was to be repaid. The railway liail l)ecome merged in thetirandTniiik Railway within the twenfy-unc years. 'The S. C. held llie Ih)iiii< repayable. 1893, 25 March. Special leiivi' refu.sed. CoRI'OKATION Ol- TollOXTO i: Att.-(Sev. of Dominion. Feli. i'. 1893, 23 S. C. R. 514, reversing a BlfA. ACT, s. 101.— WHERE PLAINLY RiaHT. 481 ,leeision,lS().A.K.(!L"2;20(). K. lil, in fiivdiir of tlie city of Toi'onto. The fiK'ts Miv thus piveii by Sir ITcniv Stioiij;, C..T. : Tlio qupstion iv|)ivs('iitoil for decision involves llic viilidity, as applied to the Ciowii representing the Dominion (ioveininent, of a Ine-law of the litv of Toronto, dated 23 April ISSH. Bv the bye-law it was (iiiutcd tliat all half-yearly water iiitcs paiil within the first two iiiuiilhs of the half year for which tiicv luv due shall be subject to a ivilliction of ')0 per cent., save and ixwpt i'l the cases of Goverinnent (ir iitlier institutions which are ixcuipt from city taxes, in which casts the said provisions as to dis- (niiiit sliall not apply. The Crown in ligiit of the Dominion has vested ill it certain public property in tiic tit} of Toronto — namely, the Ciisttim House and the Customs Wai'cliou.'ie, the Po.st Office and ilii' liiland Kevenue, and Receiver- (iciiciars Office, and for seveml wars past, prior to the institution 111 this action, water had been supplied to these buildings by the WiiltTWtirks Department of the lily of Toronto. From the (hite 111 the bve-law the Waterworks De- piiitiiierit refused to make any re- liiili' on the payment by the Do- iiiiiiiou Uo\ermiient of its water nili'S within the time prcscrilH'il by till' Ine-law, and the full amount iif tiifse rates have been paid under prntf'St. This action was brought liy the Dominion to recover back iliiiiiiioimt of the di.scount or re- hiilf, equal to one half of the whole .uiuiunt paid. By the B. N. A. Act, till' properly of 'the Dominion is I xi'iiipt from taxation. l>*93,Jnly20. [Present: Earl of Sillioine, Lord Hobhouse, Lord Maeiiaf^hteii, Lord Morris, and Sir H.l'oiieh.] Their Lordships refu.sed -pirial leave, consitlcring the judg- iiiint of the S. C. so plainly right. ^■fc21('nn.Gaz. 414.] Boi'LTON .VND AlGOMA TrAD- iMi Co. V. Shea, March 13, 1894, « 2a40. 22 S. C. 11. 742, atHrming Q. B. Boultok a»b ^"|""0- ,. , , , Trading Co. A question between lessor and „_ Shea. lessee, wherein the .S. C. held the lessor was not entitled to bring an action for arrears of rent, })ayment of- us»( and occupation, damage for bi'each t)f covenant in removing gravel, &c., again.st the lessee until he was paitl for his improvements. It appeared that the Algoma Trading Co. had leased certain Crown lamls to .Shea. The lease contained a covenant by Sheii not to remove gravel, &c. Shtm ascertained no Crown patent had i.ssued to the company, and thenmpon solil gravel, and asketl for a [)atent for himself. But the Crown granted a patent to tlie company on con- dition thtsy [)aid Shea for his im- proxements. Tiiere was an award iis to these, but it was not t^ikeu ui). The company afterwards a.s- signed their patent to Boulton, who thereupon brought this action against Shea for rent, &c. Held by the S. C. that he was not entitled to do so, until he hatl paid Shea for his improvements. 1894, June 23. [Present: Lord AVatson, Lord Hobhouse, Lord Morris, anil Sir 11. Couch.] Special leave to appeal refu.sed. Coni'ouATioN OF Vancouver j* Canadian Pa<'ikic Railway, Feb 20, 185)4, 23 S. C. R. 1, affirming Pacific 2 S. C. B. C. 30(5, 12 Dec. 1892, Railway, which had allowed the ekiin of the Canadian Pacific Railway to a man- datory injunction onlering the city to remove emlmnkments and works, ami to restrain the city from con- tinuing to commit any trespass ou a certain |)ortion of the foreshore of Burrard Inlet. The petitioners stated that the line of the Canadian Pacific Railway nui along nearly the wlude foreshore of Burrard Inlet, and formed an obstacle to the free use of thewatersof the harbour; that ♦he petitioners therefore constructed an embankment to carry a street, known as Gore Avenue, to the waters of the iidet, and they claimed H H COEPOHATION OP Vancouvkk f. Canadian ,■: r i. ii ; 482 B.N.A. ACT, s. 101.— ARBITRATION CASE. I ! !! ; HJ7J li Hi Corporation OP Vakcouvkr V. Canadian I'acikic 1{aii,way. Lemoink I'. City ok !>[0NTHKAI.. Nohtii-AVkst TllANsl'DliTA- TlllN Cil, It, >IA( KF.NZIF. AtT. CiKN. OK MUIIBAV. n ii<;;lit to cross tlio railwjiy line l>v a level crossiiijj. Tliis wns tlie emliaiikineiit file iiijiiuetion was directed against. Tile petitioner!-' eoiiteiided that tlie railway was a pulilie niiisanee, and that the i)oint was of enornions iinporlance to the fit V, and, if the eontention of tlie rail- way conipany was correct, the ineaiis of coninmuication with the waters of the harbour woidd bo cut off. 1894, Jidy 11. [Present : Lord Watson, Lord ITobhouse, Lord MacnafJlhton, Lord INIorris, and Sir H. Couch.] Special leave refused. LicMoiNK V. City ov Montkeal, .•?! May 18!) I, 2:5 S. C. R. .390, Sir Henry Stronj;, C.J., Fournier, Taschereau, Sedf>;t>wiek, and King, .T..r.,aHirining Q. R. Quebec. The <] nest ion was as to the valiility of an award lor certain lands taken by the city of Mont- real under sec. 7 of 35 Vict. (Q.) e. 32. Taschereau, J., .said : In ca.ses of this nalui'c, the court, as in reviewinfj; the tinding of a jiny, or a report of referees, n|)on ques- tions of l'a<'t cannot revci'se un- less there is such a ])lain and decided preponderance of evidence against the finding of the arbitra- tors or coniinissioners as to border strongly on the conclusive ; or some wrong priiu'iplc acted on ; or soinelhinji overlooked which ought to have been considered. 180'), jVIay 18. [rrcseni : Lord Watson, Lord Ilobhouse, Lord Maenaghten, and Sir R, Couch.] Special leave refu.scd. NoUTH-WksT TnANSPORTATtON C(t. V. MArKENziK. Appeal from a judgment of S. C. of 2(5 .Fune, 18:»"), aflirming Ct. of App. Out. of 13 Nov. 1801. The (lucstion arose out of ac- counts ill re the movenu'iit of grain. 18!)5, July 20. [Present: Lord Watson, Lord Maenaghten, and Sir J\. Couch.] S|)ecial leave refused. Appeals from Courts other than S. C. refused. Att.-Oknkkal 7 ; 52 L. .1. !'. ('. HI; 4!)li. T. ;}12 [see post], ii was (ioeideil lands in Canada, wliicli esclicaled for want of heirs, l»li>n{;c(l, notwithstanding tiie sec- limi, to the province in which tliey iiiv situate, and not to tl'.o Domin- ion. In that ease, Earl of Selborne, !..('.. ill delivering judgment, said : '• II tiicre had lieen nothing in the .\it Iviuling to a contrary coneln- Mdii, their Lordships might have I'mnd it dillieidt to hohl that the word "revenues" in tliis section ili'l not iuehide territorial as well II- titlifr reveiiuos ; or that a title 111 the Dominion to the revenues iirisiiifr from public hinds did not eiiiiy with it u right of dispo.sjil "i"l appropriation over the lands lliHiiselves. Unless, thei-efore, the iiiMiftl revenue arising from lands enhented to the Crown after the I iiioii is exeepU'd and reserved to Mebcer, the provincial legislatures, within Att.-Gkv. ok the meaning (tf this section, it ^/U^*"'" '" would seem to follow that it be- longs to the Consolidated Revenue Fund of the Dominion. If it is so excepted and reserved, it falls within sec. 120 of the Act " [which his Lordship reuro(lnee. 77(! of S App. Cas.] : " Their Lordships are not satistied that sec. 102, when it speaks of certain portions of the then existing duties and revenues as ' reserved to the respective legislatures of the |)rovinces,' ought to he understood as referring to the powers of provincial legisla- tion conferred by sec. 02. Kxcn, nowever, if this were so held, the fact that exclusive powers of legis- lation were given to the provinces as to ' the management and sale of the public lands hcloni/itif/ to the pi-ovince ' would still lea\ <• it necessary to resoi't to sec. 109 in order to determine what those public lands were. The extent of the provincial powi'r of legislation over ' property and ci\ il rights in the province ' cannot be a.scer- tained without at the .same time ascertaining the powtns and rights of the Dominion under sees. 91 and 102, and therefon- cannot throw much light iipou the extent of the exceptions and reservatimis nmv in ipiestion." Then in a QucIm'c case it was held that this section and sec. 117 are to be reconciled liy (Iccidinif that forfeitures, or esclicnls, IhH to the provinces. Att.-Gcii. of Qu,.. bee V. Att.-Gen. of the Di.ininion 8 Sept. 1H7(!, 2 Q. L. ]{. 231) [sec post]. Nor does the section IimikI over Crown lands which arc usuiviil for the n.se of the liidiims. Jn St. Catherine's Milling and buiiilnr Co. r. The Queen, the Att.-Gen. of the Dominion intervciiim' .June 20, 1887, 13 S. V. ]{. f,;;', affirming 13 O. A. R. 1 18, iillinii- ing lOO. R. 19G; in P. C. Dw. 12, 1888, 14 Ai)p. Cas. 1(1; 58 L. .1 P. C. 51; 00 L. T. 197, Loi,i AVatson, in delivering an aiiinniii;' judgment, said [11 App. ('as. p. 56] as to sec. 102 :— "It enacts that all ' duties ami revenues ' over which the respec- tive legislatiu'es of the united pin- vinces had and hav(! power of ap- propriation, ' yxcei)t such poitimis thereof as arc by this Act rosei\ei| to the res|HK'tive legislatures of the provinces, or are raised by them in accordance with the si)ecial poweis conferred upon them by this Ad, ' shall form oiu' con.soliiluted i'nini, to lie appropriated for the piililic service of Canada.' The extent lo which duties an one of the public railways of \h pro\"ince, and was intended to '»' part of H general system eoiiucct- ing Halifax and other towns of importance with the fionticr of the province of New Brunswick. UNA. ACT, s. lOH.-lJOM. AND RAILWAYS. 1.87 .U'ttr till' paisHiii^ of tliu IJritisli >'(]rtli Aint'iica Act, 1HU7, aiul in iiifdidiinco with its provisions, all railwiivs licionj^infj to tlm province of Nova Scotia, including tiio liiH' in (|iicstion, passed to and iKriiine vested in the Dominion of I'aumlu. "The Chief Coinniissioner of liiiilways for Nova Scotia, acting iiiidfr aiitiiority couferreil upon liiin I)}' the provincial Act, 28 Vid. c. 23., entered, in November lt<(iO, iuto an agreement with iltScsrs. I'unclmrd, Barry, and Cliirk, of London, whereby those fti'iitleiiien beeauie bound to make II liiilway, which was to be their own jjroperty, from Windsor, one of the termini of the branch in i|iii'stion, to Annapolis. By that iii:n'unu'nt it was inter alia pro- vidwi that, before the new line from Windsor to Annapolis was opi'iicd by Messrs. Punchard, Biiiry, and Clark, a traffic arrange- ment was to be muile between tlii'in and the provincial Govern- nitiit 'for the mutual use and cnjuvnient of their respective lines of iiiihvay between Halifax and WiutLsor, and Windsor and An- napolis, including running powers, or for the joint operation thereof, on i'(|iiitulile terms to be settled by two arliitrators, to be chosen by the parties in case of ilifl'ereuce.' " By an Act of the Legislature of Xova Seotia, passed upon the "th May 18G7 (30 Vict. e. 36.), Jlissrsi. Punchard, Barry, and Clark were constituted a body C'or|)orate, by the name of the Windsor and Annapolis Railway Company; and the agreement of November 18(j« between them ami tlie Chief Conmiissioner of Kail- ways was, by the same Act, adop- ted aud confirmed. " The AVindsor Branch Railway Wame the property of the Do- minion upon the 1st July 18«7, ''wng the day appointed by Her 5J'i.iesty, iu terms of sec. 4 of the British Nortii America Act, for tne provisions of that Act coming Kailway Co. >• Windsor and Annapolis Railway Co. into operation. And, on the 22nd Tiih Wksteiin September 1871, the (lovi'rnment Counties of C'anaihi, as then owiu'rs of the railway, and in implement of the obligation to make a ' trallie ar- rangement ' which is contained in the agreement of NoNcmber IHOtJ, entereil into a new agreement with the respoinh-nts, the Wind- sor and Annapolis Railway Com- pany. " It is unnecessary to consider in detail tlu; whole terms of the agreement of 1871. Its provi- sions, so far as bearing upon the present case, are in sulistaiice these. The exclusive use and possession of the Windsor Branch Railway was made over to the respondent company, with running powers over the trunk line, also Ix'loiigiiig to the Dominion Crovernmeiit, which connects tlu? Windsor Branch with Halifax. The Do- minion Government was to main- tain the Windsor Branch as well as the trunk line in workalile condition, whilst the respondent company undertook to render and adjust regular monthly accounts of all traffic carried by them over these lines, and to pay to the Govern- ment, not later than twenty-one days from the end of (!aeh month, one third of their gross earnings from such traffic. The company also undertook to j)rovide rolling stock, and to run a certain number of trains «laily, with stated hours of deiiarture and arrival, and to conduct their business and traffic with impartiality and fairness. No right of re-entry was reserveil in case of the company's failure (lunctually to make payment of one third of their earnings, but it was stipulated (art. 19) that ' iu the event of the company failing to operate the railways betwetm Halifax and Annapolis, then this agreement shall terminate, and the authorities may immediately pio- ceetl to operate the railway between Halifax and Windsor as they may deem profwr and expedient.' Last of uU, it was provided that the " 488 B.N.A. ACT, 8. lOS.-DOM. AND RAILWAYS. !if im . :ii: i :^fM|n The Wbstkhn countiks Haii.wav Co. ti. Windsor akd Annapolis Kaii.way Co, aj^rci'muiit should tiikc t'ttVct upon tlic 1st (lay of Jiuiiiiuy 1H72, and coiitiiiuc for twcntv-ouc years, ami 1)«! tlu'ii renewed on tlie same eon- ls and charges, collecting, reeeiviiij;, and appropriating to their own iisr all the tolls and earnings uf tlie .same. '"2nd. That on the (•oiiipjetioii of the Western Counties Uailwav from Yarmouth to Aniiapoiis (ihiw in course of construction), the siiil railway and appurtenanees, liuiii Wind.sor to the trunk line, slmll he tiiid become absolutely the pi'o|HMtv of the said Western Counties Kali- way Company. " ' 3rd. That, in coiisidenitioii of the premises, the said coiiipuny hereby engage to prosiriite the work of building the railwiiy I'ldin Yarmouth to Annapolis, and eoiii- plete the same with all rensoinililc tlespatch.' "On the 30th October 1^7.!, the Governor-General in Coiiiieil approved, subject as before to par- liamentary siuK'tion, of a fmtlui proj)o.sal made by the appellant company in tlie.se terms : — '" 1st. That the Western Omii- ties Railway Com|)any shall ciiin, free of charge, all passengers IkiW- ing Government tickets, on all tluir pjissenger trains running iii'twwii Halifax and Windsor .1 unction. "'2nd. That the said compiim. or their agents or assigns, j^IwH have running powers over tlie Intercolonial Railway, between Halifax and Windsor Junctiou. with such privileges as luive Imn hitherto granted in the agreeiiieiit with the Windsor and Annapolis Railway.' " On the 26th May 1874, au IJ.N.A. ACT, s. lUS.— DOM. & WINDSOR UAILVVAV. IH'.) Act was piisscd by the Piirliamcnt ote'aim(lii(;57 Vii't.c. l(i.),<'ntitlf(l, 'All All to iiiitlioiize tilt' tianst'ur 111 ilic Windsor Unuicli of tlu^ Nnvii Swilia Railway to tlu' Wcst- ,111 C'ouiitifs l{4iil\vay Company.' I'lie proposals ol' tlu- appi-llant coiii|iiiriy, which were jji-ovision- iillv ajtivi'd to by the Orders in (.'uiiiu'il of the 22nd and .{(Jth October W.i respectively, were sd forth at length in Seheftnles A mill B appended to the Act, and iiri' ri'tVrred to and sanctioned by till' (■iiacting clauses. Jt will be iitvi'SMirv, licieat'tcr, to (ixaniine. lliis stilt iiti' more closely, l)eeanse till' appellant's ea.se is mainly toiimli'il upon its provisions, and lliL' parties are widely at varitmec iis to tiieir true import and effect. " Upon the 22nd .June 1875, the ii'spoiiilcnt company entered into 1111 aifret'iuent with the Minister of Public Works of Oannda, by which the eouipany, on the one hand, uuilertook to alter the gauge of the Windsor and Annapolis Railway tiuiii live feet six inches to the sianilanl gauge of four feet eight mill one half inches, to deliver to the Minister a certain quantity of liicoiiiotives and other broad-gange |iliiiil, anil to release all claims and ilemumls against the Government lit' Ciiniula u[) to the 1st day of •Inly 187-5. On the other hand it Wiis agreed that, upon the change of ifimge being effected, all arrears of tiailic receipts, due by the com- pany to the Government, which liiiil aecnied up to 1st January iH'o, should be discharged, and that the Minister of Public Works should then deliver to the com- pany a like quantity of narrow- gauge engines and rolling stock. It was further stipulated that the t'ompimy should, on or before the iilstJuly 1875, make payment of the third of gross earnings which had accrued after the 1st January IH75, and that the proportion of such traffic earnings due to the Government, and thereafter aecru- iug, should ' be paid monthly, as provided in the .said agreement '''an Wkstkhn under which the company hold ^olntiks , 1 .1 1 11 • I IlAll.WAV ( (). V. an.l work the branch us alore.saul, .^v„„,.„. ,,,„ winch (except as alorcsaid) is Annai'iii.is herel)y (lechircd in all respects in Kailway (.'o. fidl force and effect.' In puisu- ancH of this agreenu-nt the re- spondent company altered tlu; gaugt! of their line, and regularly nnule the payments therein stipu- lated, and an exchange of engines and rolling stock was also nuidc in terms thereof. " The respondent company re- nniined in full [)o.s,scssion of the Winil.siu' Branch line, and con- tinued to work the same from the beginning of the year 1872 until the l.st day of Augii.st 1877. On that datt! the Donunion Govcrii- nu'Ut took i)o.s,session of the Wind- sor liranch line ; and on the 21tli September following, trans- ferred the possession of it to the appellant company, under the agreement scheduled to the C'ami- tlian Act of the 2Gth May 1871. " The respondent company, upon tlu' 10th October 1877, tiled a bill in the Supreme Court of Nova Scotia against the appellant com- pany, wherein it was pi'ayed, inter nliti, that the latter company should be ordered to deliver up pos.se.ssion to them of the Windsor Branch Railway. 'I'he appellant company appeared and dennirred to the bill, but their demurrer was, on the Utli March 1878, overruled by the judge in Etjuity, and an appeal taken against that juilgment was dismi.s.sed by the Supreme Court sitting in Banco, upon the 2!)th August 1878, James, J., alone di.s.senting. The cau.se then leturned to the judge in Equity, and after the appellant company had put in their answer, and evidence had V)een adduced by both parties, Mr. Jn.stice Ritchie, upon the 1st March 1880, gave judgment in favour of the re- spondent company with costs ; and his judgment was affirmed with costs by the Supreme Court of Nova Scotia, ou the (ith April I >' tDO n.N.A. AC'I", s. 1(W.— THIS SKCTIOX KXA MIN R|). t'! ThB Wr,8TER!» COUNTIKH Raii.way t'o. V, WiNDSOH AND Annapolis lUlLWAY Co. { I iMKJItIt IHHl, .Iiimcs, J., iM'ili;!; iifjaiii the only (li!SNi'iiti(>iit ,in(l<;i-. " Some of tilt' poiiit.x, uiisiici't'ss- I'ully iniiiiitiiiiK-il by tlu> ii|i|M-llMiit (•oinpiiiiy in the coiiiIm of Xomi Scotiii, wt'i'c not prt'sscd in tlm ar^iiiiM'iit uildntsscd to tills liourd. The two proposilloiis sprioiisly iniiliitniiird by the tippi'lliinls were these : — (I) 'riiaMlic Act piisscd by th<> I'arlianii-nt of Canada upon the 2()th May 1H7I (M7 Vict. c. It).) c\tlii;;iilshcd all ri<>;lit and interest which the respondent eoinpany hud in the Windsor Ui-anch Hivilway, by virtue of the nfjreeiiient of 22nd September 1H71, and transfeired to the ap- |)ellant company a present riijlit to the exclusive possession, and a future rif^ht to the exclusnc pro- perty, of I le said railway ; and (2) that the I'arliament of Caiiadu harniinated by the delault nt' the respondent I'oinpany, by tlie mutual con.sent of parties, or hv the action of a. competent lei'is. liiture. " As already stated, (he appclliint com|)any maintains that tiu' a;;m'- meiit in question has been put an end to by the Act of ti com. jietent legislature. In (IcMliiif; with that contention, it will lie convenient to consider, in the IIm place, whether, on the assiiiiiptidii that the Dominion I'ariiaiiit'iit had authority to enact the ;i7lli Vict. c. 10., the provisions of tlwt Act do extinguish those rights In lelation to the Wind.sor Bnimli, which are conferred upon the rc- siKindent company by the iigive- ment of 1871. " 'l"he pr(i|)osals, or pro\ isioiuil agreements, which are scliediilid to the Act .'57 Viet. c. 1(5., coiitiilii two distinct .sti|iulatioiis, the i>\v relating to the possession and iim', and tlie other to the propeitv, nl' the Windsor Branch l^iihvay. li) the lirst, the appellant c()iii|mii) ' undertake to receive the siid rail- way and appurtenances on the first day of December, Anno Uomiiii eight«H.Mi hundred and seveutv- three,' and to work it ellicieiitly thereafter. Although t)i. cfUM jiany undertake to n- eive, no correspoi upon the ' ■ligation bi 111 lo givelbci .1 raihv!i\. I'it' leeemlx'i' lH7;i, 111 itied diiie. By the second of these sti; lations it is provided that, upon im i (Hiiplftion of the West^-rn Counties HiiilwHv, then in course of coustruLtiou, pos.sessioi Upon the any other spi ■ UNA, ACT, s. lOH— DOM. &■ I'lTHhIC INIKKKSTS M)l frmii Vniiiiimtli to Aiimipolis, tin- Wiiiilscjr Hiiiiich lliiihva)' ami its ;i|l|llll'll-lllllll'i'S sllall l)C llllll biM'UIlK! ihf iiltsidiitf pntpcrty of tlio iippt'l- liint cciiapaiiy. Tlit! (iovcnior- (ii'iicnil, with advii'o of h'\>^ Coun- cil, winilil pi'olialtly Imw l»ffii 1 iilillcd, liy virtiio ot' tlid udmiiiis- liiilivc powers coiitViTcd upon liiui liv till' l-tli si'ctiou ol' till! Hi'itisli Ndilli Aincrifa Act, 18157, to iiiiiki' a viiiiil af^rccmcut in I'fjjard III till' |lllssl'^'sillu and working of iIh' iiiif; Imt it is, at h-nst, very iluiililfiil wlictluT 111' wonlil liavt! Iiiiil till' I'i^iil to alii-nato the pni- |)iity of the line, without th»! siiiitiou of the Doniiniun I'urlia- iiii'iit. lie that as it may, the I'iiiliiiiui'iit did interpose upon thu I'tith May 1H74, to the eiiVet, thi! ii|)|)i'lliiiits say, of destroyinfj; the |iivvii)iisly Hubsistinj; agreement lii'twi'i'ii the Uovernnieiit and the ivspoiiileiit eouipany. "Xi.Mtlier in the Act 37 Viet. 1. 10., nor in the schedules ap- |ii'iiili(l to it, is mention inmle of llii' a^jri'finent of 22nd .Septeiidior ls71, or indeed of any right or iiiliiost of the respondent eonipany ill till' Windsor Branch Railway. Tliii canon of construction applic- iibli' to such a statute is that it must not lie deemed to take iiway IT i'Xtinj,'iiisli the right of the re- -|Hinik'nt conijiany, unless it np- piiii', liy e.vpii'ss words, or by plain iiiiplinition, that it was the inten- •iun of the legislature to do so. Tliiit principle was allirmed in Bamiif.'ton's case (H Coke, I'SHa) tlTlioums' Ed. p. 417], and was riTojinised in th(! recent case of lliu Uiver Wear Comniissionors !•• Adiuuson, 2 App. Cas. 743. Till' I'niuuiation of the principle IN 110 doubt, much easier than its iipplication. Thus fur, however, tlic law appears to be plain — that, in order to take away the right, it 1* not sullicient to show that the tiling saniJtioued by the Act, if done, will of sheer i)hysical necessity put ail ■ ■ 1 to the right; it must also be sill II that the legislature have au- thorised the thing t(» be doiu', at Thb Wkhtkrn all event,s, and incspeetive of its ''"I'-'^i''*-'' possible interfereiic.. with existing w/J'dI'oI. and' ' '■'^'''•«- .\NNAPOI,W ' "It appears to their liordships Railway Co. that thcrtt is nothing in tint provi- sions of the Dominion Act, 37 Viet, c. 1({., to warrant the inference that the l'arliam(!iit of Canada must liave intended thereby to eiiiutthat immediate possession of tlu^ Wind- sor liranch, for the purpose of working it, was to be given to the a|ipellant company, under tli(> agree- ments .scheduled, even though there should be a subsisting arrangeiix^nt for the working of the line, in- ileed, the contrary appears from the 2iid section of the Act, to which reference will be made hereafter. " The preambUi of the Act recites the propo.sed transfer of the rail- way to the appellant coin[>aiiy, and also a resolution of the Canadian House of Commons, of date the 23rd of iVlay 1873, to the effect that the Government should be authorized to enter into negotia- tions for the transfer of the Wind- sor Branch to .some reliable asso- ciation or company, ' upon condi- tion that such company extend the railway from Annapolis to Yar- mouth ' It makes no reference to any right Ixdonging to or asserted l)y tho respondent company, nor does it refer to that |iart of the .scheduled agreement which relates to the willingness of the apjiellant company to undertake to receive the railway and ap|)iiiteimnces uj)on the 1st December 1873. it is impossible, tbcri'lore, to gather from the terms of the; preamble an intention to terniinati! at once any temporary right of possession which might belong to the respondent company. The transfer of the railway was obviously not expected to take plact! at once. It was tle- I)endent upon a condition which might never be f iiltilled, and whicli admittedly has not yet been ful- filled, viz., the completion of tho line from Yarmouth to Annapolis by the apiK-llant comijany. Be- ',i|ii ;i I 1J)2 H.N.A. ACT, s. l()rt-l)(^M. AND NOVA SCO'I'IA. ■ :■ U i>j TiiK Wbbtkhn COUNTIKS 1{aii.way Co. i'. WiNllKOIl AM) Annai'oms Kaii.wav Co. , ■»■'> ;, i ll' sidfs, the transtVr ol tin; proi/crty of till' I'ailwiiy is nowise im'oiisist- i'Ul wiiii tlu- t'iut of woikiii}; lUTMii'^ciiifiils iifft'(iiii<; tin- tntiis fcfoi-'s lijrlit continiiiii'; to iiHV-rt tin- rifjlit of the tiiiiisfvrot'. " 'riitn coiiK'S llic Ic'iidiiif; eiiaot- niciit of tlu stiilntr, IIS coiitaiiicil in scf. 1, wliich is ill tiicsc terms : — ' Till' )i;ements ns niav be necessary, ' by contimiiiij; the working of the same by the Wlmi- sor and Aiuia|K)!is liaihvtiv Coin- pany, or otherwise.' These |ini- visions certainly do not sn;:;;e>-t that it was in the couteni|ihitioii el' Parliament that immediate |io>m's sion of the Windsor Hraiicli Hail- way was to be jiiveu to the appel- hint com]' my for the purpose ef operatiiif; it ; on the contriiiT, tiiey are apparently intended to meet the ca.se of the (■Jovcrmiit'iil ili- dining to give possession of tin- line to the app llaiit coinpHiiy nl the time when the latter had nmlei taken to rec«'ive it. Nor do these pnivisions necessarily indinitethiK, if then! should be a siilisistiiij; working agreement with the i>- spondeiit company, or any other coiiilMiiiy, that agreement wiis in be s('t aside, in order to ii'W which thi-ir Lord ships tfikc of the import and (HFcct of tliu Cimiidiiiii Act, ."J? Vict. c. 1(>., it ln'coint's iiiinecessjiry to ilccidc wliftiuT, if it IiimI chosen to do so. the I'mlianit'iit of Cnntidii wduld Imvf had the power to ex- tiii;;iiisli till' rifjlits of the respond- fiit niiiiimiiy inider the afireuinent ot':i2iid Septeliiher 1H71. WhetluT llml power is jjiveii by the provi- Mons (if llie Biitish North Aineric;i Act to tlie Dominion Parliament, or to the lii'fiislature of Nova Scotia, is a (pu'stiou of dilliculty and ini- portaiifi' ; hut weiiifj; that it dites nut arise for (h'cision iu the i)re- Miil ease, their Lordships express no opinion whati'ver in refi;ard to it. '• Their Lordships will, therefore, hiinildy iulvise I[er Majesty that till' jiiil;;iiients of the courts liolow (iii;;lit to he ullirmed and tlie ap- |Ha! liisniised 'J'lie appellants must pay the costs of the appeal." TlIK WlXDSOIl AND AnNAI'OI.IS Kaii.way ('(imi'Any »". Tiik Qi;kkn AMI 'I'lIK Wk.STKUN COUNTIICS l!\ii.\VAV. it c. ronfrii. Iu S. ('. 1-Vh. 1(1, iss.-), 10 s. ('. K. :\:\o Sir W. Ritchie, VJ , t'ournier, lli'iiry, TiLsehereau, J.l., Stroii<;, Mild Gwyniie, ,1,1., dissentinj;], wliicli reversed ttwvnne, .1., in K.u'h. ("I. Mav IH, 1HS.'{; in P. C. •lime LV). ISHti, 11 A pp. CVs. 007; mL. J. P. C. 41; 5.-) L. T. U71. Lord Watsor [there lieinff also pivsciit lionl rialsiiiiry, L.C, Lord lloiilioiise, Sir Barnes Peacock, Sir Moiitajrii,. .Smith, and Sir Hiehard ( ouch 1 Slid: ♦' The Uovernment ot Caiiaila, l>y an a<;reenieiit daied tlic l!;iiiil Septendier 1871, uiuh'r- liiok to ;;i\(' the appellant company till' I'xcliisivi. use of the Windsor liiaiiil. liailway, and also running [lowirs over the trunk line, from Windsor .function to Halifax, for the term of '2\ years, from tho l>t .laniiary IS72." The appellant wuipiiuy, iu pmsuiince of that afjreement, enteifd upon and 'I'uk Wixd.soii winked the Windsor Branch Hail- f ' Annacoi.is way until the 1st August 1H77, "IkQikjL"" "' when Mr. Brydgcs, the Govern- and AVkstkiin ment Superintendent of Hallways, Counties look po.sscssioii of the line, and put Kaii.way. ail end to the occupation of the company. On the 24th Septem- ber 1877, the same otlieial gave po.ssessioii of the line to the Western Counties Itjiilway Com- pany, undci' an arrangiunent, the terms of whicii ai'c to lie found in Scheiliiles A and B of the Act of the Dominion Parliament, 37 Vict, c. l(i. " The appellant company, on the 10th OctolK'r 1877, tiled a hill, ou the Eiiuity side of the Supreme Court of Nova Scotia, against the Western Counties Railway C a- puny, in which they soughi to obtain a declaration of their riglits under the agreement of September 1H71, to recover possession of the Windsor Branch, and to have an account taken of the receipts of the defendant company, from freight and |)assenger tradic. On the IJllh SeittemlKT 1878, the ap|M'llant company presented a petition of right to the Kxcheipier Court of Canada, under the pro- visions of the Dominion Act, ;{!) Vict. c. 27., in which they liumbly prayed that the agreemeiit of 1871 should 1k' s|»ecilically per- formed, and also ' that the sum of L'1,'50,(HM) sterling, or such sum as may be reasonable, may be paid to your suppliants in compensation and by way of damages for the injuries and losses which have been occasioned to them by the lu'caeh and failure of Her Majesty's (iovernmeiit of Canada \i perform the .said agreement of the 2-ud .Septeinbei 1871.' " In the Ki|uitysuit, Mr. . Justice Ritchie, on tlielsl March 1880, (lecided that the plaintilfs were 'entitled to the jiidgmeiit of the C(uirt in tluir favour, with cos;.*.' Th.it decision was utUrmed by the Supreme Court of Nova Scotia, on the 6th April 1881 ; utid ou Rp|M>aI mm 11 . >^ 4^ 494 B.N.A. ACT, 8. loH— DOM. AND PROV. niOTTTS. Thb Wijcdsor AND AnNAIMiMS Railway Co. v. TlIK QURKN AND AVESTKRy Counties JUll.WAV. f I to tliis Bniird, tlic jiulgmonts of Iwitli courl.s Inflow \Vi!ii' iiiriiiiUMl, with costs, on the 22ntl Fdbninry 1HH2 [see tihovt-]. Thi'ir Lordships held tiuit tho af^rconieiit of 22nd Si'ptfinlicr 1H71 wn.s valid and siihsistiiifj; and tliat the rijfhts of tho Windsor and Anniipolis Jiail- way C'onijMiiiy under that agiee- iiicnt were not affoctcd by tlio Canadian Aft, 37 Vict. c. 10. " Dininn; the depeiideiieo of these proeeedin<;a tho Government of C'anaihi put an end to their arianj^enient with tlie Western Counties IJjiilway Coini)any, and, on the 1st Deeond)or lS7n, they allowed the ap])ellant eom|)any to resume possession of the Windsor Branch, and to exercise runninp powers over the trunk line, but that without prejndictf to the rights or liabilities of H«'r Majesty, or the a])pellaiit company, except in so far as the question of damages might be thereby affected. " Her Majesty's Attorney- General for the Dominion of Canada apin-ared in the iK?tition of right, twA lodged a .statement in deft lice on behalf of Her Majesty, on the 18th October 18H0, but no further proceeding.^ were taken in the eaii.se until the judgment of this Board had been gisen in the Kijuity suit. On the ISth May INH.'i, Mr. Just'.e Owynne ih-cided that damages were not, in the eir- cumstjinees of ease, recoverable from Her Majesty, and dismissed the petition with costs, ' leaving the suppliants to pursue their remedy, for such compensation iigainst the AVestern Counties Bail- way Comi)any, under their jiulg- uient already recovered against that company." A motion for a rule to sliow cause why the judgment of Mr. .luNtice G Wynne should not 1m! 8«!t aside wius refused by the Court of Exchequer on the 2(ith .liiiin 1HH3. Upon an appeal against thatf Canada, Sir W. J. Bitchie, t'.I., and Taschereau, .f ., held lliat a petition of right lay iigainst the Crown, but tlmt ilio damages recoveialile imist Ik. limited to the period of the down's pos.s«'Ssion of the Windsor niiinih from 1st August to 2ltli .Si'iitcm. ber 187" These learned yuh^vs were of v.pinioii that the iipjxllinit company, by their ])r(icec(liiigs in Eipiity against \\w Western C(nin- ties Railway Company, had elcctcil to take that company as tlieir debtors for all claims of danuic'L' arising after tho 24th SepteiuUr 1877, and were con.s«>quently hnricd from jireferring the.se claims ii^'ain>t the Crown. Fournier and lliniv, J.T., whilst agreeing that (lie pcij. tion of right lay, held that the Crown was liable for diimajrcs suffered by the ni)iKdlnnt comiiiniy after its possession Imd cciiNd. Gwynne, J., adhered to his fornicr dec ision, and Strong, .T., eiuienrnd with him. The Supreme ("ouit, accordingly, on the Kith Felnniin 1885, reversi'd the judgment of the court below, and ordered nnd ad- judged that the BU|>p!iants Miccn- titled to recover from Her Mnjistv the Queen the prolits of the C'luwii from the Windsor Braneli IJailwav from the 1st August to the 2ltii Septendter 1877, which llnv llxcd at the sum of j<9o89.7. "The |)rincipalai)peal i'roni lliiit jiidgtnent is taken by the ii|i|hI- lanl.s, the Wiud.«or and AnnniKjIis Bailway Company, who oiijcct to it, in so far as it excdudes tluir claim of damages after the I'ttli Sept<'mber 1877. The respondiiit, Her Majesty's Attorney-Oontiiii for the ]3ominion of Canada, liii> brought a cross appeal, in nliiili lie seeks to have the jiuigiiicnt el' the Sujueme Court s«t aside, and to have the judgments of .Mr. Justice Gwynne and of tiic Coiirt of Exche(|uer restorwi. " The responih'Ut has not, in llif courts below, or at their Lonl shijis' Imr, imjuigned the dtcisiuii of this Board in the Ki|Mitv "•nil between the apptdlaiit coiiiixniv and the Western Connlies Hidlwuv Company, He has coiieiiied flmi i -'rm B.N. A. ACT, s. 108.— PETITION OF RIGHTS. 495 the nppt'Uant company Imvo still till' li^lit t" possess and use the Wiiulsor Uraufli line, under the a^rnruicnt of 1871 ; and, seeing tiiiit the company was restored to possession in the year 1879, the courts below have not thought it lu'ct'ssary to disjwse ii those pints of the prayer of the petition ot' ri"lit which relate to perform- ance ot the agreement of Septem- kT 1871. » Their Lord.ships are of opiinon tlmt it must now Ik; regarded as s.ttled lii\ "jat, wheniiver a viiliil I'oul has been i.UMle be- tween the .)wn and a subject, a IKtitioii of right will lie for damages resulting from a breach of that (Miitiwt by the Crown. Section 8 (if the C'aimdian Petition of Right .\et (;«) Vict. c. 27, Dom. Parlt.), iiiiiteiiiiiliites that damages may be leeoveiiilite from tiie Crown by iiiciins of such a petition ; and the leiisims assigned by Lord Rlack- Imiii for the decision of the Court (il Queen's Rench in Thomas v. The Queen, L. R. 10 Q. B. .SI, iipiHiu' to their Lordships neces- siiiily to lead to the conclusion tiiiit (liiiiuinres arisinj' from broach (if eoiitnu't are so recoverable. A Mill for (liuiiiiges, in respe(!t of tlm \iiilation of contract, is as nmch an iiiliuu upon the contract as a suit fur iH'rforinaiiee ; it is the only iiviiilable means of enforcing the eiiiitriiet in cases wheiv, through tile act or omission of one of the eiiiitmctiiig parties, specilie per- fiiriimnee lias become impossible. Ill Tobiii r. T\w qwm, 1(5 C. R (X. S.) ;{.',-), Chief Justice Kyre, whilst alUruiiiig the doctrine that the siivereij;n cimnot be sued in a |H'litii)n dl' right, for a wrong doin> liv the executive, took caro to iM'l'iiii that Sluims founded on eiiuliiiets and grants matle on be- lii'h of the Crown are within u ilass l(M,mlly distinct from wrongs.' " It WHS III giied for the re8|>on- •I'lil that, ill Thomas r. The Queen, tin. (hiiiii of the suppliant was not for duinogeu, but f«)r u AND ANNAI'OI.IS Rau.way Co. r. TllR Ql'KKN AND Wk.STKU.S CoUNTIKS Railway. pecuniary con.sideration alleged to Tin? Winh-sor have been due in terms of the con- tract ; and conseipuMitly that it was unnecessary for the Court to de- ci(hi anything as to the liability of the Crown for miliqnidated tition is to obtain restitution, or if restitution cannot Im- given, compensation in mon(>y, or when a claim ari.ses out of a contract, a.s for goods supplier posscs.sion of till- Windsor Hranch Uailway on till' 1st Aii'just 1K77 was simply tlic tortious ai't of Mr. Urytlj^cs. Tilt' ar<;iinit>Mt fails because it has nofoiiiHlation in fact. The respon- dent, in his statt^inent of defence, aile piis.sc.ssion of tlu' line to the Wes- tern Counties Kailway Company. It is plain, therefore, that I^Ir. Ihydgcs acted with the full au- thority of till' (lovernnicnt, and merely earried out their instruc- tions, which were issued in the iM'lief that it was within their legal right to put an end to their agree- ment with the appellant company. "Anothcrargunu'nt suhmitted on liehalf of the rcspoiulent was to the effect that the Crown is oidy liable in respect of brenclics of contract occasioned by the omi.ssions of Crown oliicials, and is not liable in respect of breaches due to their positive acts, even when these acts aredonc uiuier direct iiuthority from the Crown. Ujion thi.s point it is siifricieiit to say that, in the opinion of their Lordsliips, there is neither authority nor principle for recog- nising any siicli distinction. " It was hImi argued for the re- spondent that the Crown ca t be held liable a.'' fiij- liicnli (i|\(,||. tract, inasnuu'h as all tiie nets of the (iovernment of Canadii, iii|)ii|. ting nn end to the |)ossessioii i,\ tlic appellant company, were (lom. (t„ use the language of Mr. .luMic,. Strong), 'c.vpressly with tin. i,,. ttuition of acting in puisiiiiiicc of the statute of 1874, and lor tlu' purpose of carrying out the pio- visions of that .statute, a dpitvwlmli I'arliamont had imjiosed nii tln' Executive Govermueut.' If tlic cfFect of the Canadian Act u( 1871 (;J7 Vict. c. l(i.) had been to mak,. it the im|M'!ative duty of the (io. vernnu'iit to terminate their hjjih'. ment with the appellants. iukI to give possession of the Windsor Mranch to the Western t'oiintiis Hallway Company, the down would have incurred no lijiliilitv to the appellants by performing tlmt statutory duly. But the decision of this Board in the i)revions suit was given in favour of the ]m'.stiii appellants, on the very groiiiid llml the Act of 1871 did not iiilVct tin- Milidity or subsisteiu'c of lln'ajjnv- ment of Septend)er 1871, iiml im- posed no obligation on the (iovnn- ment to interfere with tlie ii|)|nI- hint's possession of the Wiinkir Branch Bailway, or to tnuisfir ii to the Western Counties llaihv;iy Company. "The only matters reinaiiiiiiirtiir consideration arc the extint tu wiiich the Crown is linhii' It damages, and the anioiiiit il damages which ought to W awariled to the appellants. Tlifir Lordships are of opinion tliiit, on the 1st August 1871, wlu'ii llnv were ousted by the act of iW Crown, there arose fotheti|)|)i'liiiiii> a claim of damages, for los* nl |K)S8essioii, during the whole n- mainder of the term s|ii'tilii'il in the agreement of 1871; iiml ll'si their sid)secpient restoration, in Ueeember 187!>, had im ri'lv tin effect of reducing the iiinomil of that claim. They are iiimMi' w assent to the view taken Itv Mr B.N.A. ACT, 9. 108.—TORT FEASORS. 497 Justice Henry, who was of opinion lliftt (laiiin^t's must he restricted to the ptiiinl bttwTen 1st Aiifjust 1H77 uiitl r.)th St'pteiiilMT 1H7H, tile (liitc when the petition of ri siiid tiiat the appellants ar(> cslopjM'd from preferring any claim a<,'aiust the Crown, after the 2ltli Scpteuilx-r 1S77, by reason of their Laving clecteil to accept the Wes- tern Counties Railway Company as tbi'ir sole debtors for damages aucriiing subsequently to that (hite. Ill the opinion of their Lordships, ilie |)lett thus advanced by the nsiKindent is without foundation either in fact or law, and must tlieri'fore l)e rejected. "The respondent's statement in liefenee coutains no plea of estoppel, ami no aUegiition of fact, upon wiiieh such a plea could be founded. file argument has been lm.sed upon ilie print (iC proceedings in the Eiiuity suit, which was tendered liv the res(H)ndent, at the trial of the present cause In-fore Mr, Justice • iwvnue, and received dr henv esse. Kven if it were eompet<'nt in these cireuiu^tJinces to entertidn the plea ||fe>t()|>pel, their Lordships would lie (if (ipniinn that ro case of elec- •ioii lia-s I n miul(> out. Both >uils were dipending long before "II o|MTative judgment was pro- I'ouneed in eitlier of them. In the Miil directed against the Western Counties Railway Company, which piaved inter itli'u f„r an account of jTi'tits, allhongh the appellants «eie found to be entitled to the judgment of the court in tht-ir favoiu-, there has l»een no onler directing an account to be taken, imne has Ucn taken, and no decree has In-eii made ordaining the do- S 2»40. fendant company to make a money Thb Windsor payment to the appellants. Had *"" Annapolis there been such a decree, any pay- ,p "'q** ^°" "' ment mad and tifleeii thousand dol- lars (81 15,000), as the damages suffered by them by rejvson of their having Wvn deprivetl of the |K>ssession and ust; of the Wintlsor Branch Railway from the 1st August 1877 to the Ist December I I r' > Ifilfi'f'n I? ' I !,]; rf I" i f. 498 B.N.A. ACT, s. lOS.— RIGHT TO FORESHORE. North Shobb Railway v. PlOM. HOLUAN V, Gbrgn. ^ mm Lvo!« II. Fisii- MONOKRS' Co. 1879. Their Lonlships ttlso find that tho appellant coni[)any are entitled to receive the costs in- curred by them, in the principal and cross appeals. G. was in possession of a part of the foreshore of the piibl" '. haiboiir of Suininerside, and had erected thereon a wharf iM'tween hiatent under the fj;''*'"^ seal of Prince Edward Island, 30 Aiijr. 1877, by which the Crown, in rijjlit of the island, and assumin>r to act under a provincial Act, 25 Vict. c. 19., purported to grant H. a fee simpli; to the land. Held that under this section of the B. N. A. Act tlie soil and bed of the foreshore in the harbour of Suinmerside Iwlongs to the Crown as re])resentinK the Dominion of Cana8 J 36 L. T, 5U0, will iu reason and on principle apply, and in. demnity is due. Jn tlie Xoitli Shore Railway Co. r. Pidii, in S. (' 20 June 1887, 11 S. C. 1{. 07i which reversed Q. B, (^ii,.!,m' 4 Feb. 1880. In P. C.Aug. 1, 1HH!», HApn. Cas. 012; 59 L. J. ]'. ('. 05. 01 L. T. o25, Earl Sclbdi-iui stiii(.< the facts : •' The respondent^, tin- Pions, carried on their lnisinc* (of tanners) npow riparian land, belonging to them, wiiieh Imd a frontage of considerable Icnj.'!!! to the ' St. Charles,' a tidal niiMVahli. river within the limits of tlic lur hour of Quebec. 'I'lic appfllaiil-, thu IVorth Siiore llailwnv (Vmi- pany, in 1883 made tlicir niihva\ upon t le foreshore of tiiiit riv. I'liv means of an embankint'Ht cxti mj. ing along the entire lenjiiii ul' iln- resiMjndents' frontage, not, how- ever, taking any part of llic if. spondent.s' land, and in tills ein- bankment they left one; o|ti'niiii.', 15 feet wide and 12 or 1,'i I'tii high, opposite to the tHMiii'iy, through which the rivtr was ac- cessible at low tides and at sonu' (but not all) high tides. AVilli that exception they cut off all awiss tn the water from the n'>|)onili'nt-«' land, which, before tliosi: work" were executed, was always acwssi- ble for boats at high water alon;- its whole frontage. The apiH'l- lants also made another o|KMiiii;' just outside! tin; boundary ul' tlic respondents' land, ami o|i|)ositi' lu the end of a jjublic street tlii(Mi;'li which the respondents mi i.'lit,t'xcr|it at certain high tides, have found no- | cess by means of that stn-et tdtlu' water. No compensation or iiidiiu- nity was paid or offered liy the up- pellants to the respondents, wlui brought their action eoniphiinii:;' that they had been unlawfully shut out from Hm'w access to the livii, and asking for tlamages, and ibi the company might be coniiiflW to demolish and remove the u\<- Mtruction." His Lordship then coiisidinil uU the authorities, and beld ttai B.N.A. ACT, s. 108.— QUEBEC & LXG. LAW 499 the case of Lyon v. Fishmongers' Co. [•<«'' n't'crence above] wiis iis altplinil)li' at Quebec as in Eng- land. Tliiit none of tht; authori- ties rciii'il on l>y the uppciiants ■tiiitl to establish the non-exist- iiiwof riparian riglits upon navi- ^'.iliic or tidal rivers in Lower (.'aimila, or to show that tiie ob- •iniftiou of such rights without ]i!irliauR'iittuy authority woukl not be an actionable wrong, or that if, North Shore in a casi! like the present, the Ka'^-way v. riparian owner wouhl be entitled to indemnity under a statute au- thorizing the works on condition of indemnity, tiie substituted access by openings such as those which the appellants in this ca.^e have left, wouM be an answer to a claim for indemnity." 109. All lands, mines, minerals and royalties helong- Property in ing to the several provinces of Canada, Nova Scotia, &" *' """**' ami Xew Branswick at the Union, and all sums then due or payable for such lands, mines, minerals or royalties, shall belong to the several provinces of Ontario, Quebec, Nova Scotia, and New Bnmswick in which the same are situate or arise, subject to any trusts existing in respect thereof and to any interest other than that of the province in the same.* ' Construing the word " royalties " ill this section with sees. 102, 117, iiiul siili-sic. 18 (property and civil rifiht.s), sec. 1)2, it has been iield that when a person died wiihout iiciivs and intesttite, leaving leal as well as ijer.fonal property, iliat escheat fell into the revenue uf the pro\ince and not into the revenue of the Dominion. See .\tt.-Gen. of Quebec v, Att.-Gen. of the Dominion, in Q. B. Quebec ^ Sept. 1876, 2 Q. L. R. 236, re- wsing H. E. Taschereau, J., 1 Q. L. K. 177 [see below], ii question concerning the pro- perty of n person dying without lieirs and intestate in the province "f Qneliec. In that ca.se the judges ^f 'lie Q. B. Quebec rested their jiidiruient, firstly, on the ground that "> the provinces under sub -.sec. 14, *'e. 1)2, could deal with the descent »f property and could pass a law truing illejjitiinate chihlren a right to udierit, therefore the provinces were invested with jjower to appro- P'H'te this psclieat to themselves; i"id secondly, on the word « royal- ties,' in sec. 109. Taschereau, J., who presided in the court of first instance in that case, and formed one of the majority in Att.-Gen. of Ontjirio v. Mercer in the S. C, Imsed his decisions against the right of the provinces on the 102nd sec- tion. Att.-Gen. of Ontario v. Mercer, 5 S. C. R. .'iSH, reversing O. A. R. o7t; and Proudfoot, V.C., 2G Grant 120 ; in P. C, .July 18, 1H83, 8 App. Cas. 767 ; 52 L. J. P. C. 84; 49 L. T. .312 [see 6e/ow], was a question as to the right to lands situate in the province of Ontario. The lands in question belonged to a [)erson who had died without heirs and intestate. The •ludieial Committ«!e decided, re- versing the S. C, that such es- cheats fell to the province ami not to the Dominion, under .«ec8. 109 and 126. In Mercer's ca.se. Earl of Selborne, in giving judgment, aflSrmed the result of the decision in the ca.se of Eraser's estate, Att.-Gen. of Quebec v. Att.-Gen. of the Dominion. 2 Q. L. «. 236 ; IQ. L.R. 177. II 2 500 B.N.A. ACT, s. ion— PROVmCTAL PROPERTY. il ' ii Co. I'. The QUKEN, St. Catiib- The right to Tndinn hinds sur- Pn ",'* Thk"""*" ''•'"'lered to the Crown, the bcne- ficinl interest therein wns hIho dc- elnriHl to ho in the provinces and not in tlip Dominion. See St. Catherine's Milling? Co. r. The Queen, 20 June 1887, 13 S. C. U. 577; 13 O. A. R. 148: 10 O. R. 196; in P. C. Dec. 12, 1888, 14 App. Ciis. 40 ; 58 L. J. P. C. 54 ; 60 L. T. 197 [see ante, p. 94]. Att.-Oen. op British Co- lumbia V. Att.-Oen. op Canada. Att.-Oen. op QCEBRC V. Att.-Gen. op DoMimoif. As TO Minks and Minerals. — The provincial h'jjislatures have a ripht to the.sc. In Att.-Gen. of British Cohimhia r. Att.-Gen. of Canathi, tlie Judicial Coinniittee aflirinod decision of the Exch. Ct., 14 S. C. R. 345 ; in P. C. 3 April 1889, 14 App. Cas. 295 ; 58 L. J. P, C. 88; 00 L. T. 712 [see belowj. The Judicial Committee held, reversing the decision of the Supreme Court of Canada, that the precious meUds within the Canadian Pacific Railway Iwlt within British Columbia were vested in the Crown, subject to the control and disposal of the Government of British Columbia. The main point there was — by British Columbia Acts, 43 Vict. No. 11. and 47 Vict, c. 14., settling an arrangement by arbitration in terms of tlie lltii arti- cle of Union between Columbia and the Dominion, British Columltia agreed to convey to the Dominion a certain extent of land in aid of the construction of the railway. Tlie precious metals under this railway belt were claimed by the Dominion as having passed to it. On the other hand, the i)rovinco contendwl no transfer of the pre- rogative! right was effected, nor was there any grant of these mines and minerals to the Dominion Go- vernment. In tliis ease there were pivsent Lord Hal.sbury, L.C., and Lords Wat.son, Fitzgerald, Hob- house, and Macnaghten. Att.-Gkn. of Queukc v. Att.- Gkn. of thk Douimon, 8 Sept. 1876, reportetl under the name of " Church r. Blake," 2 q. L. R. 236, [Dorion, C.J., Monk, Sanborn, and Tessier, JJ.],rev(rs.' iiig H. E. Taschereau, J., 2!) .Jim 1870, 1 Q.L. R. 177, and tl„. result of wliich ease was appiowd of by the Earl of Selboino, L.C , in Att.-Gen. of Ontario c. .Mcrnr. Thefactsare thus given liy Dorion, C.J. : " Edouard Fraser (lied .n' Fi-aserville, in the iiroviiuc of Quebec, on 2 Feb, 1874. He w.is not married, he left no lii'irs tind no will. Under art. ()37 of tliu Civil Coile his estate devolved to the Crown. However, shortly after his death, one Daniase Camii was appointed curator to his vaoml estate, »nider art. 317 of the Code, and took possession of his proinrtv [which comprised both persmml us well as reid estate]. The Att- Gen. for the province of Qiu'Ihc then in.stituted this action to ri- cover from this curator the pro- \wrty composing the estate. Aflir the return of the action, the Att - Gen. for the Dominion, acting iiImi on l)ehalf of Her Majesty, |K'ti- tioned to be permittcid to inti ivein" in the cause to chtini the estuto. This petition being eontisttil In the plaintiff, the parties were liiani, and by the judgnient of tliccdiirt below, the Att.-Gen. for tlic ]h- minion was delartMl to be eiitilleil to claim thcestate, and wusallnwnl to intervene. The present apimil is from this judgment, and r;iis< the important (piestion whitliT escheats belong to the I)i)inini"ii or to the province wheniii lliy arise ; for, although both |>.iili- claim the Fraser estate on litliall' of Her Majesty, they in reality iln so on behalf and in the intrivMif their respective governmetits. In l)Oth in.stanees they use the nniiie of Her Majesty, but only as npr ■ senting the public domain, tbif the Dominion in the one ca-si lul that of the province of (Jnelw in the other. The contcstntioii lieins thus submitted by the parties ii ^ unnecessary to eu(|uiro Will'lllft they are both right in a.*sulilln^' ''' proceed as they have doi"' '^ BN A. ACT, ». 109.— I'UWEll OVER INHABITANTS. 601 Itelialf of Her Majesty, and the only (lucstioii which by the plead- iii<'s is siil)iiiitto(l to us, is whether the Att.-Ueii. lor the Doiiiiiiioii has shown any ri^ht to this estate, fur if lie luis no ri{^ht to it lie bus no rif;ht to intervene in the taiiscs. J'iie title of the Att.-Ueu. fur tilt' province of Quebec is not now in ((iK'.stion." His Lortlsiiip then continueil : " h is unnecessary for the purpose (if this eiiiise to entpiire into the uri;.'iii of this right to escheats. It is siitlic'ient that at the time the B. X. A. Act, l(Sl)7, was passed tlipy bclonjjcd to the Crown, as (ietlared by our Code, or more pruperiy to the Uoverunient of the late pruviucf of Canada, in whose favour lli-r Majesty had released tliat i)ortiou of her revenue arising ill the province, in consideration of till' civil list {^ranted to Her Majesty i)y the Act of 9 Vict. c. 1)1. I'he rij^ht of the late pro- viiRc of Canada to these escheats lieiiii; undoubted, it only remains to ascertain whether it was re- .*rve(l hy the Confetleratiou Act to the jiroviuces of Quebec and On- tario, or attributed to the Dominion Government. "lulhc distril)ulion of powers made by the Confederation Act lictween the Dominion and the ^e^)aratu provinces, the Dominion I'arliaineiit has the control of all matters of a general character affeitiiig the wholu Dominion. The provincial legislatures exercise their authority over matters atfect- iugtlie inhuiiitunts of their respec- tive provintcs only, and among the subjects to which their au- thority extends is the jrower of legislation as to the rights of pro- jurty uud civil rights in general LHuli-sec. 13,sec. J)2, sec ante, p. 257 ] . The right to regulate the trans- mission of property by inheritance 'alls within the powers of the legisltttuiis of the several pro- vmees, iw uflecting rights of pro- perly and civil rights. For in- siauee, the provincial legislatures Att.-Oen. or INION. may restrict or extend the degrees Att.-Gbn. of of relationship beyond which Qcbmc v parties will ct-ase to inherit ; they ^"' may, as is the case in France, decree that, in defuidt of legitimate heirs, the estate of the tieceased shall descend to his iUegitimat« offspring, or they nuiy order that it shall revert to some educational or charitabU- institution, and by their legislation they nuiy nutterially affect or destroy altogether the right of escheats. " Under sec. 102 of the Con- federation Act, all the rights and revenues which the legislatures of the several provinces had a right to appropriate (except such as are by the Act re.servetl for the re- spective provinces, or which are received under the special powers conferred upon them by the Act) form part of the consolidated reve- nue of Canada ; and by sec. 12U all the rights and revenues reserved to the governments or legislatures of the several provinces, and all the rights and revenues received by them under the special powers conferretl upon them, form part of the consolidated revenue fund of Ciich province. The property d«'- rived from the exercise of th". right of escheat constituted a revenue which, before confeilera- tion, the several provinces had a right to appropriate. It would, therefore, belong to the Dominion Government, unless specially re- served to the provinces, or uidess it came within the category of tho.se rights which are received in virtue of the special iK)wers con- ferred by the Act upon the several provinces. The only other .sec- tions of the Act having reference ti) the distribution of the assets of the several provinces are sees. 107, 108, 109, 113, and 117, together with schedides 3 and 4 annexed to the Act. In none of these do 1 tind that the right to escheats is s|)ecially reserved to the pro- vinces, but, from what 1 have already said, escheats seem to come within that class of rev«aues which m I .;; 'Ii I M ^ Att.-Oki». op QUKIIBC t', Att.-(>k!», of Dominion. i I 502 B.N.A. ACT, H. 109.-PROV. ESCHEATS. Hie derived from the exereise of the itowers ^'p(•(•ially conferred on tlie proviiuial lej;ishitiiros. "If these lejjisliiliires lliive the power to enliirne oi eiirtail to the extent of tliis li^ht hy (^xltuidiii^ e transmitted, or if llieyean aholisli it aitop'ther, tiii'n tlie existenei' of lliis rij^iit to escheats is sidiji'ct to tiie authority of the [irovineiai h';;islalm'es, and the revenni' derived from it is col- lected in virtue of the powers speeiidly conferred on them hy tlu; Act, since it depends on their French. TewHier, J. : 11 s'ugit d'une question do ddshercnee. A tpii les hiens d'nn individn deci'de sans h^ritiers, dans lu province (h> C^uehec, oii il avait son domicile, et oQ il est dccede, et oii se tn)nvcnt ces hiens, retonrnent-iKs ? Est-C(? ail Gouvernement de liv l)rovince de Quebec, ou an Gou- vernement de la puissance dii Canadu ? II est hon de reinonter iiux sources des loisdedeshcreiice pour en faire rapplication. C<'s lois formcnt j)artie dii droit civil, et ce n'est (lu'un iikmIc de transmission institute iioiir ceiix qui ne lai-ssent |>as d'heritiers, on qui en laissent qui tons repiidient la succession, c'e.st la mome chosen ; en ce ens, " cette succession, est acipiise an soiiverain," siiivant I'expiH'ssion do I'urticle (j;37 iir hii douucr deM uttributiuus difiei-eutes. iictiou whether this source of rcvc line shall be maintained, and to what extent, or whether it >liiill Ik. abolished altogether. TIumv i> liere no (iiiestion of pnMojfnliu' or of sovereignty, but a iinre i|iit>ti(,ii of interpretation of tlu! 15. X, \ Act. The Court is niiaiiiinuiis in saying that the Doiiiinioii iiovtrii- incut has no claim to the e>ttii(' in - sion instituted for those who Icavi' no heirs, or who leave heirs all of whom repudiate the succession. It is the same thing. In this i'as(, " this sill-cession reverts to tlu' sovereign," following the imaniiifi of the article (537 of onr t'ivii Code, or these estates bcloiii; to the Crown, following the uiuauiiig contained in tht; article 101. One can under.stand that in our coiie and in our judicial hiiifjuagc one makes sometimes a stnuige abuse of the words the Sovereign, the State Domain, the Crown, Her Majesty the Queen, the rif,'hts cif the Stiite, as if the.se words wen.' synonymous. Nevertheless, tliev are not ; aud very often they make use of the name of Her Majesty to give differaut prerogative!}. B.N.A. ACT, H. 109.— I'RlOU RIGH'I'S OF ESCHEAT. S03 Lc droit (If (I(?8h^rpnce n'a ete, et nVst cncori', (lu'im droit do rcvcr- sidii jiimr i'iiii'L' rctoiiriuT Ics liit'iis i\ raiitoi'iti' i|iii l(^■4 aviiit fait Korlir (III (liiiimiiif |nililic. (.'fttf aiitorito rsl liit'ii ri'itn'SciitT'c, priiiiitivciiu'iit, {larlcHuiivt'raiii; iiiais lesoiivcmiii, iivcc ill saiietiou dii I'urieiiituit iiii|ii''riiil, u-t-il coiifpro w. droit a iliiiitivs? I! I'st ailinis i|iif Ich (|rciil> ill' (ieshen'iRr apjMirti'iiaiiMil nil C'liDiuia avant Tat'to de la coii- lAJiiiitioii; s.i Majt'sto hi Keino et li' rarli'iui'iit Jiu|iei'ial avaioiit done (Icjii I'liit aiiaiidoii dc fcs droits h la (■iiloiiic, ct il s'afjit do savoir >iiii|ilciiu'iit, aiKiiU'l dos deux {joii- vcriu'im'iils — k-jjoiiveriU'iiK'nt lede- ral 111! ii'fjoiivfriieinciit provincial — a|ii)aititnt il! revenii provenant de (V limit (!(' dosliereuce. Cette iint'stioii doit etre deoidee par 1 iiileriHvtiitioii do I'Acte Imperial ik' la L'oiil'ederatiun du Canada, liDi't 31 Viet. I'Impitre 3. La stiction Id'J (lit : — •' 'I'oiis le.s droits et nn ('Mils que Ics K'-gislatures respw- livcs (111 Canada, de la Nouvelle Kcds*', ft du Nouvean Brunswick, avant ut a I'epoque de 1' Union, a\aicnt lu pouxoir d'approprier, mii/ceii.v reserves par le present Itch' aii.v Ivifislatnrcs respectivcs (lex l)ivviiicn; on qui scront perfiis f)iir dies (iiiijormement aux pou- vdirs spcx'iuiLv (jui lenr sont con- fiii's pur le present acte, fornieront nil i'oiiils cdu.-solide de reveuu pour I'tiv approprie au service public en (-'aiiada." Voihi (loiic une exception dans III clause preci'dente, et le revenii prnvi'uniit do la desherence, n'est-il pas iwrmi ceux conipris dans cette exception, .savoir, parnii ccux re- ferves aiix ligislutitres des pro- vinces el i)en;mpareUes confarme- nitnt aii.r pouvoirs speciaiix qui leiir sont coiiferes par cet arte ? II me scinhle ((ue cette exception >« tionvc parfaitenient etablie par 1"^ sections 92, 109, et 117. La ■•^^^lii)!! 92 porte en tete " iwuvoirs Pxeliisifs des Legislatures provin- cittles," et puruii ces pouvuirs ex- The right of escheat has only Att.-Gbn. or been, and is still, only the right of <;'»"'bkc v. • 1 ATr-lfFN OF ivvi'i'sion, to rotiirn the ostiitfs to \. *„. * * the authority which had given them fniin tlu; Domain of the State. I'his authority is well re|)resi'nted, ori- ginally,by the sovereign ; but iiiis the sovttreign, with the sanction of the Imperial Parliament, conferred this rigid on others ? It is ay this Act f It api)ear8 to me that this ex- ception is perfectly esbiblishetl by the sections 92, 109, and 117. Section 92 has for its title "ex- clusive powers of the Provincial Legislatures," and uinongBt these I > ! I ■ \r\v !': j ; 1 i ■!!' Att.-Obn. of QusniH' t'. Att.-Okn. or Dominion. 504 B.N.A. ACT, ^-. 109— COUTUMK OF PAIUS. cliiHifs il ost Htiit\i<5 (|iu' "dans t'luKiiif ProviiK'f In Lc'^^iMliituiH' |), ct [woiis-s('<'ti()ii 14] u tiKlniinistt'iilioH ilv Injnstivv i/niis III Proviiiri', 1/ compri.i In rrnitioii, Iv miiintirii, rt rn i/v triltHnaii.v ilv Jiisfipv pour In province, in/iiiit jurisiliction virile et rriiiiiitelle." Iji loi dc lU's- lu'renci' ii'cst (Ih'iiih' ivfjlc dii droit civil ; lit lo^islatiin: di- Qiieixr a it; droit oxfliisil' dc Hfatiii-r sur Ic (U'^rt3 de sufi'cs.sibiiiti' vl sur lo inud«> df Hiicecssiliiliti; ; iiiiisi rim no r<'iii|iL'ch('rait il't'tt'iidrcpar uiu' loi fe dt'fjre dc siu'ci'ssihiliti'' aiix ciifaiits oil paroiits illuuiliiues on inc'iin's aux iiistitiitions ({iii so char^cnt (|iicl<]iii-loi.s di' rfdiicatioi) (k'M inifaiits ilK'iritiiiifs. Ct'tti' loi de desiionMiiM' nous a efe traivsiniso |»ar rarticic 1(57 dc la (,'oiitiniH'df I'aris, i|ui sc lit coiiinu' suit : " Qiiand U' propriolairc pos- scssiMir (riiiieun lierita<;(' va do vit- a tropas, sans heirs iip|Min'iis, li- Hant-Jiisticicr t-n la Justice diupu-l Ics hcrita^rcs sunt tissis, pent et, liii est loisibU; iceiix lieritages vaeans et nun occiip^s, saisir el nii'ttri' en sa main." Si Ton considcre ci' droit do difsheronce eoninio iin int;idoiit des droits do la lianto justice, l'articleS)2 a doiiiio exclusivoniont radniinis- tration do la justice aux provinces, et le rovonu du droit do deslieronce lui apfNirtiendrait. Ki Ton considfere le droit do des h6rence coinme uii accessoire do revenu territorial, los sections 109 pt 117 |)articiilarisent et ^jonorali- sont lo poiivoir des lofjislatiiros provinciales sur les terres piih- liques, et tons les accessories »)t ncidents du revenu territorial. En elTet, In section 109 (lit : "Toutes los terros, mines, inino- rniixet reserves royalesuppurtouunt mix difTcreiitps provinces lors do I'uuiou, et toutes Ich somnies il'ur- exclusivo powerH it is cimetcd thm "In each province the le^risliiti,,.,. limy exclusively make laws in rdu. tioii [ under siili-seot ion l.'{|(i)"|i|„. jierty and civil ri;i;litH in th,. p,.,,. vince," and (under suiiwilinii !(' to "the iidniinistratiouiir jnstici' in tile I'rovince, including t he ediisiitii. tioii, niainteiianco, and oi'irjinistition of the courts ol' justice lor tin. I'rovinco, both ol" civil and <'riiniiiiil jurisdiction," The law of esi||,.|ii is only a rule of civil ri^rjit. Th,. Ijo;jislatureof liiieliec has tlieexi'lu. sive rif;ht to lei,'islate as to llic ili.. ffreo (»l succession and the iiiihIm nf succession; thus not liiiij; can |,iv. vent it from exteiidin^j hy c. luwtlii* dejjfree «»f successioii to illcjfiiiiniiic children or relations, or even to ilic institutions soiiu!tiiiieseliai'- diction the estates are situnteti, \m ]iower and it is lawful for him to sci/x' and take into his own liiimN those vacant and imocciiiniil e>- tatcs." [See Coutunie de Paris, li) Laurioro, vol. 2, p. l.'lo.J if this rifjht of eseheal i> considered as an incident uf llir ri}j;lit8 of lii<>;li justice, the arliiic'JL' has given the admiiiistriitioii of justice exclusively to the provimw, and the income th-rivod from the right of escheat woiilil belong to il. If tliis right of escheat is ion- sidored as an accessory of the ter- ritorial revenue, the sections llW and 117 particularise and gencrali><' the power of the Provincial Lt'f,'i<- latiires over the puldie hnids.Hiulnll the accessories and incidents of the territorial revenue. In effect, the 109th section sap i " All lands, mines, minerals and royalties belonging to ditFereni Provinces attlie time of the I'nion, and all sums of money then due or n.N.A. ACT, H. KW— POSITION OK LT-OOV. 505 ffciit lilors tliii'f* |M(iticiiilr(>iit imv (lilli'iviiti'x proviiicc.M," t-ti-. Kt lii*''tioii liT.j,'"''"*'''''''^""' '■•' pouvoir, ajiHitf : " Li's divcrsos iiriiviniTS conwrviTiiut ri'spcctivc- iiM'iit toiili's Icurs pn)|)ricti''s piili- li(|iics (lout il n'fst pus Miitrcinciit ,li,|HiM'' (Inns le piVHciit iicti', siijotii's nil ilioit (111 Caiimlu i|iii''s ell vert u l)iirliciiiii'iit a la C'ouroniic, ou Niiivci'iiiii, c'cst-a-tlirc au ^jdUvcriK'- iiii'ht fiMlt'ial tlu (.'annda, ciiiilnili'dii principal; nuiis IcsdlVls Milt's noli reclaim's, ct vciidiis par 'Hilivdc raiilorile jiidiciairc, appar- liciiniMit iiussi II la C'uiiroiiiic, on Miiivciiiiii, c'cst-a-ilii'c ail ^oiivcriic- iiicnt JiKiil, ct Ic [iriKluit n'cst |»as iviiii> u la caissc dc co dernier. Lis ti'i'i'iiiiis rcpris sur la iik^' par mwstioii, oil Ics isles sc foriiiaiit linns Ics ticiivus dans les liinitcs des |iruviiat's, iippartiennciit aiissi h iliiii|m' province. ("est (lone en vain ipie Ton I'liililit nil ralsoiinciiiciit sur cc ipie il' liit'iiti'iiiiiit-Uouverneiir iic rc- |iri'sciiic |uis la Heine, ni:iis quo i'i«t Ic li(pii\eriieur-(Jent'ral ; oiii, l"Mir Ics iittriimfs speeiaux qui iq)- liiiiticimcnt a la royauto, ef (pic an Mnjcstc pent dclefjiier ot roiiferer \m,H en vcrtii dc, Sa Prero;];alivi' Kovalc ct (Ic scs instructions, inais linn |>ii,s pour les clioses sur les- (|iii'llcs sii MajcHte la Uciiic ii'u jiliis imciin pouvoir direct, conimu «)nt Ics tcrres du donmiiic piililie, lis liioits lie propricte, ct droits 'i^ils lie eha(pi(> Province. On |Ktit sc scrvii- du noin dc sn Ma- jcstt' \mr lendre la justice, pour siiivrc Ics (lioits de propricte du fi'mvcriicineiii Vvi>\ ineial. jmitcc ipic ^■wl nne portiou de I'autorito payiililc for siieli lands, mines, ATT.-dRN. or niincriils and roval n-scrvatioiis, Qi'rnitc v. sliikll hcloiiK to ilic several Pro- Att.-crties which are not otherwise dis|H)se(l of in this A»'t, siilijecl to the rij^llt of Canada to assume any lands or piiidic properties required for forti- ticatioiis or for tlu; defence of the count ly." This distriliiition of powers has its application for several other siiiijccts. Thus, clfi'cts coiiliscaled liy virtue of the customs laws licloii;; to the Crown or sovcrci^^ii, that is to say, to the Kedcral (Go- vernment of Canada, wliicli has the control of the principal ; iiiit <(o(mIs stolen 1111*1 not rcclainicil, and sold liy order of the judicial authority, lieloniralso to the Crown or soverei|jii, that is to sjiy, to the local ^rovcrnment, and (he proceeds are not j^ivcii over to the treasury of the latter. [iSVf. Itou|;litto lie tli(^ former, meaiiin<; the Dominion]. Ucehiimed lands recovered from the sea hy accession, or islands forineiis In iioin de sii Miiji'sti'', Si roil voyait If (lonvfiiii- iiu'iit I'roviiifial on \v.s anloriti's indviiu'ialf.x, oil Ics tin. .lum.x, ela- micr Ic iioiii (If s« Majt'sti", ilans If.s iioursiiitfs uu'iiif civiles, an iioiii till (Joiivcriifiiifiit Local, (|Ufl<|UfS- uiis ,sf ri'crifraiciil iwiit-ftrc foiitro cf s\\U', (|iii sfiait pfUt-i'trc plus <"oir"ft fii iait, iiiais |)oiiirait eUv foiisiilfru foiiiiuf iiii)>li(|uaiit iiiiu iiin^. piir- tieulifi' dfs attrilmtions (pii lui sont doniifCN |)ar Tactf iinpt>i-iul; dans ffs actfs pnrtioiilifis il ost aussi Itii-n If ri'pri'M'iitapt dii Sou- vfiaiii (pif I'f^it If (louvfiiifur- (li'iu'nd iliins Ifs sifiiiifs. A <'0 ••oiuptf-la, Ifs consfillfis U-^islatit's .'fniifiit dfs pfisonnafU's plus iin- portants ft plip. pi'fs df la rovaute (pif iif If Sfi'uifiit Ifs liifutfiiant- (iouvfiiifurs, parcf ipic la sfctioii 71i (lit, '• :•((• rout noniiiifs par In liif iitcnant-douMTiu ur ail noni )l>; .Sa Majfsto," "t Ofux (|iii sciairnt aiiisi iKUiinit's sc trouMTaient aii- dfssiis (111 poiivoir (;iii fii ivaliti'' Ifs flioisit. Cf sfiait uiif >inf;u- lif !'(> anoiiiiiiif. Dans If preninliulf dd'ac'tf dc In fonifdt^'ration il est df f lari' ipic Ifs proviiuvs out (k'sire i'oriiu'r uiif union Ifdfralf, Ce noni snppost! nil" I'odfration df poiivoirs, iiiu! dis- triliution dfs pouvoiis cntri! di- vfi'sfs pro\ iiiffs fiifr'f lies, ft un fonsfi'vation dc ffi'tjiins droits chiupif proviiiff (;onlfd('rff ; c'est la coiilrf-partif d"uiif union li-jjis- lati\t', dans la(pifll(! tons Ic pouvoirs ^oiit iviinis dans iinf sfiile li'^fisla- t ire oil parlfnifut. L'Vsl cii vfitii (It VA' t.j.itf iedfiutil' epic duKpif proviiu'f a eonrfrvt'' d.'s droits pi'o]irfs, ft pariii' ces droits se trouvu If droit fXf lu8il' dii doujuiiif authority conferral on the Pro- viiuial Qovf rinncnts, wliivl, il,. y havf thf rifilit to u>f uiKJcr |.|',. naiuf ol' Her Majfsly. ji mir mhv the I'roviufial (iovcniuunt oriln. provincial aittlioriiics, or ihi. tiji,,,. mils, suliordinaliii}j; Jlcr .Mnjoi; ■„ naiiif, fxcn in civil ]ir(i('('i'(liiiit«,'t„ the nan l* of the ].iocal (iommiiiiiciii, soiiif would cry out pci'liii|isnpiiii).t this style, which would !»• pcrlnips niorc corifct in fact, Imt iiiij.'|ii h,. considered as iinplyiiij; an iiidijMii. dfiicf which oiu I'roviiuiiiKn , nifiits do not possfssaii} iiicirctlinii our Federal Uoverniiifnt. It is said that the {.iiiitiimiii- (•lovernor does not rfpicscni l|,r IMajcsty in the saiiif iiiaiiiici' us i>i' (iovfrnor-Cifiifiid ; this i> triii> m a fifiif nil sense, Inil not in tlir |uir. tieuhir sense of the powci> wliiiL arc jjiveu hy the Iniiteriiil Act; in these particular Ads la- is ib iniich the reprcscntatiM' df thr Soverei};!! as is the (iovciiini-- tieiieral. Accordiiif; to tliisna^. onin;;, the legislati\c ('(luncilidis would 1k> more iniporliini |h'ix>ii. a;;es, an;l nearer to roMilly, liwu the Iiieiiteiiant-(i' !i|>- pointed would lind tlii'iiiN'l\i> aliovc the power which reiilh i'Iu'H' them. This wouM ne u sinjjuliir anomaly. In the |iroainl>lf of t'le Act of Conffderation, it is dccliiicil llml the I*ro\inces desire tiv Imm a Ffdeiul rnioii. Tlii^'lcrm mi|i- poses a Icdfiatioii of piiwcis, a distriliiitioii of iHJWeis lii'twciii dilTfrent provinces aiiioiiji lliciii' .vfhfs, and a prfsfrvatioiml ciTliiiii ri;.dits to etu'li conffdcinli'il I'l"- vince ; it is a couniei|iiirt nl •' legislative union in which iili iW powi'rs arc rf-nnitfd into n "inillf Ifi^lshitui'f or pailiaiiieiit. Il imd virtue of this federal livaly ibl fiicli I'roviiiff has piociviil ii> own right.*, and among tlui*' luIiU are to be found thi- cxcIii.-im rigiil B.N.A. ACT, s. 109— MEANING OF CllOWN. 507 iiiililii' I't '111 (ionmincdorKtiit ilaiis cliiuiiii' imivinco, ct imrini Ics ac- ccssoinv- il 'If ili'-lii'ifiifo sujt't an ('oiitn'ilf jiidiciairf, li'';,'islatir ft iM'cnlil', lit' la I'roviiK'i' (li'(>ii(''lic<\ ,IVii coni'liis i\\\u dans la [Jirsi'iitc? iii«l;iui't' It's liifiis dc la Hiii-ci'ssioii v.iciiiitt! tl'^ IVii J|M('tiii'iix, ([noiiin'il n(! suit |)as |iliis coini't, par Ic profuiviir- ^'i'lieml tl'" Sa .Majt-sto jK)iir la Province di' C^iir'lH'f. of the publit! donmin and the do- Arr.-OKK. or main of tho Stat*- in fach provinw, 9''''^^"^ "• ami anion;^ I no accfssoiu's ol the i>„.,,.., pnldii- domain is found tli<- riiclit of csfhcat, sulijci't to judicial, \vji- islatiM' and rxn-nliM' ron'rol, ol thf l'io\inci' of (^iicipfc. I conclndo in lht> pit'scnt instance that the property of the vacnit succession of the late Kdward Fraser. nio^calde a:id imnioveaiile, silimte in the Pioxince of (^uelicc, lielon;;s to the Province of t^ueliec, repri'sentcd in this cause liy tins Attorney-deneial of this I'roxince, or, what is the same tliini;, liut in tone more n'spectful, alth()U;;h it may not lie more accurate, l>y the Atloinoy-deneral of Her Majesty I'dl' llie i'ro\ince of (^ueliee. [I'lie translation is the joint work of M. I. Morley antl 10. Jai'kHon. (leo. J*. Whct'ler, Ksij., Iiarrister-at-law, of Her M.ijesly's Department of the ..' d'cial I'rivy Conned, has kindly vcritied I'otli French iind Knglish.J Hiiiiisiy, .1.: "If till' technical (|m'>ti()n iii>isted on nt the arfj'i- iiii'iit wi'ic the oidy one in the ease, ii rniijil ^circclv <;i\e ri>e to .'iny liilliciiliy. In delinin^i the eXi'cn- liw piiwcr. (he U. N. A. Act, -'•c. H, ilcilares it to \est in the 'inivii, iMid when we c(Hne to the li'^'i-bilivf power in see. oS it is ilirliircil to lie vested in lhclati\e power of the pro- vince of (^iu'Ih-c is deehired to lie ^'•>te(l i'l th,. Lieincnant-tJovernor, 'lie he^i-liidve Council, auil the H"|i>e of Asseudilv. This dis- 'intlion i,i kejit up, and the ollieers "' the pp '.inies are so desijje.,ieil is''<>. |ii ^n. tatixe le;fislatiircs, Im cm, , , Milijirt to local legislation. Sw Cliittv, I'rerog. p. 27. The sovercjijirs individual prerogative is siilididi. nated to his power a,s exciriwil :, Parliament. This estate would uii- doubtedly have fallen intu !' ' consolidated revenue liiiil it . come open before the coiil'edcniildii (tf the ]>rovinces. See (". ,* c. 10. H. 5, al.so c. 111. •■. 1. (piestion here is, (Uies it IipIuiijl' in the provinci! of Ciiiebec or ic llu' J)oiiiinion of Canada? 'I'lii' Hn thing to be noticed is tlint llii< minor prerogative came iiii.lfr iln control of th»! late iMovimc of Canada by virtue of the iiowr conferred on that proNinceovvrilic subject of properly and I'ivii rij;lii- within the province. The iHiMiual prerogative of the so\ei(i;;n «;i> yiehled np to the proviiuc wli.ii tie royid as.seiit was given to iIk Avi '.) * ict c. IM., which dwlurK thi't ". civil list is airepled li} IIt Majesty instead n, lire siitijci't to the control of the |iro\iiuial le^jislatiires. It is coiii- |i(>teiit fertile I'arliiiiiient of Quebec 1,1 cstnlilisli the law relatinj; to (Icseciits, and it may amend, iiiotlily, or repeal the art. (i;J7 ol' till' r'i\il Cede. It Miav be said limt there 's n limit to t''is power of provincial legislatioi, jver pro- prty; tlmt it cannot Ciiaet tiiat l)iower to lcj;i>ilate, liiit as liaviiifj the jiower le l(';;ishite coneernin^j; property, tlmt is private property, and civil ii;.'iits within the i)ro\inee. The riirlit tti (leterinine to whom the pniHMty of II persun dyin;; intes- lale without lieir.H shall fjo, is of ilie wine nature iw the law of •i'scent, ill faet it is a part of the law of (le>eent, whiili I presume 110 one (jdiilits, |M'rtaiiis to the jiirisiiietion of the provincial letfi^- latiir»j!;ati\es of the kiii^': 1 Hlaek 211. " In the case of Dyker. Walford, ilecided in the I*ri\y Council, from till! Clianccrv Court, York, Dec. 11, IHKi, 5 Moo. T. C. VM, it was held tliat Jiiin ref/ii/iii in- cluded personal e'Tects of a bastard dyiii<5 intestate, and fjo to the kinj^. It may bo .said that the word royaltii's in this section is used in a more restricted s.'use, tind by it are intended rents or dues pavalile for the ri^ilit of miniii;; for the precious metals. I see no reason so to restrict it, particularly as the same rer^oii that would i;ive a cl'iss of royal peripiisites to the provinces wlieretheyarise wouldyi- 1 all. And it is more rea.sonable to interpret the wii d in its inimary than in its .secoii lary and limited sense, whi di is a nu'aiiinjf j^iveii to these rr.ai rents by miners, tbini the true sense of ilie word. I n connection with the reason i ii{.' liefore adopted, .see. 117 has force, wiiicli says : ' The severiil provinces ^hidl retain all their respectixe piiiilic propertv not otherwise disposed of in this Act, subject to tile rifjht of Caiiadu to Hssiime any lands or puhli'j pro- perty re(piired for fort iflcat ions or for the defence of the country.* This, in connection with st-;!. lOtt ;;.! 'i WW, 'Ml **!! 1 W. I\V' i*:| ii' :!li;!i ! I'll HNiP Att.-Oks. op queiikc v. Ati'.-Cien. op Dominion, Att.-Gkn. or OnTAKIO II. Mkiicku. 610 B.N. A. ACT, s. 109.— FEUDAL LORD & ESCIIKATS. and sdit'dnlf 3, stlunvs what hoi* of pulilif property is {riven to tlin Doiiiinioii, ami for whnt piii'poses. "For these reasons tlic Court •■oiisiders tliat tlie estate of Frasei', if siiliject to eselieat, falls to the l)r'>vim'e of (^iieliec. 'I'lH-rc is t'V.MT reason why it should he so; these e.selieats are of feiaial orijjin, and the land re\erted to the feudal lord or to the Crown, and, as Urown in his Le^ial Maxims, p. .'{17, ex- presses it, ' this is in acordanee with the spii'it of the a;ieient feuilal doetrine expressed in the maxim ijifdif nulliiis <'.st,(.\f iloiiiiiii rci/i.i.' All power which miftht at any time have existed in the si-i{jnior or ."overeijxii over lands iir reversion of lands is now vested in the pro- \in<-; where they U'e sitimte. 'I'his points to the ri'Versiol: in ease of lands; as respeets moveahle.s, it is rea.sonahle tliat the same result should he. It harmoni/.es with 'he jiurpo'cs and olijeets of llu^ law as indiealed hy the Aet ereatiiifj; the two ,, irisdielioiis. 'J"he {general jw»\vers anil revenues inid pulilie [irojierty id' the Dominion have iiiueli the same relation to those of the |)ro\inees that the I'nited Stall's lieai' to the several .States, and it hus never heen jjretendul that the eseheats pro (hftvto sniii/iiiiiis lieeanie the pro|perty of the I'nited States. The reversion, as Well in personal as real estate, lias Ireen always f^iven to the .Stale within which the eselieat ari.ses. This is assumed as law in the ease of Cross f. I)e Valle, Dee. 1H(!;!, tW S. C. V. S. (1 Wall) 1. It will lie seen that the same reiison- inj; has led to this eoneluKion as has heen adopted in this ease. Coi ley on Const. Lim. j). 52'), s))eakiu<; ( f eminent domain, says : ' I'nder the peculiar American system, the protection and ref^u- lation of jirivate ri;ihls, privile;ics, and immunit ies, in fienend, [/roperly pertain to the .Stale governments, and tho.se ijjovernments are expected to r.'.nke |U'ov isioii for these eircum- stuncos and necessities, winch are usually proviiUid for their titizciis throujih the exercivt of (iiiimiit domain ; the riv:ht itself, it w„i,l,l seem, nnist pertain to tho^e ;;n\(.||i. men' also, rather than lo ||„. •rovcrnment of the nalidii, nnd siudi lias heen the coiiehision dI' the authorities.' The Coiiil (|i.t,.r. mines this (luestion as one Ikivvi'im the jirovince and the Dniniiiidn although it is .souiewlml eiiiiuibiv pre.-^ented, oiio Attorney -ticmial claiming on behalf of the (^iiicn against another Attornev (icin'riil <'liiiming on liehalf of liic (jiiciu. We must understand this iis a claim for the respective guvciii meiit.i, and we must under^lainl )iv the Queen what art. li.'ij (if tli.- Code means \>y the Crown, nut tin. t^ueeii of the Crown, Imt mic lU' other of the governments vvliich we decide to h(! tliat of tlii' pid. \ ince. In doing this we do ikiI liml it necessary to detertniiie vvliieli government lias the right tniift|'„r .'he l^ueeii, or whether liolii liinc It is a (piestion as todi>triliiili(iniit' rights and privileges hytiicH. X. A. Act, and, from careful stiwly of that Act, we think this iniiKir im- rogative lielongs to tlie |iii)\iiiic where it arises." Mis hiinislii]i then gave the formal jiKl^nmit of the Court. Att. -(Ikn. ok Ontaiuo '■. MKiirEit, in S. C. 14 Nov. IsM, T) S. C. H. .VtH [roninier. Tnsdi,.. reau, and (Iwynne, .1.1., Sir W, llitehio, C..J., and Strong, .!, ilissi'iiting], reversed Ct. of A|iiNiil, Ontario [Mos.s, C. .1. A., liiirlun, I'atterson, and !\Ioriison, .l.l..\. , (i (). A. II. .YiCt, aiitl I'roiKlfiKii, V.C., 20 (Irani I'JO; in 1'. Cliily IH, ISH.'t, S App. Cas. 7(17; M I.. .1. P. C.HI; •ur|>osc of olitairiinf>: psscssioii of luii'l ill llif city of Toronto, w'licli was tlio property (if Amlrcw McrciT, wlio is now ,1, astd. 'riic facts witii wliic'i \w imvc to tlciil art', thtTcforc, those stntt'il ill tilt' iiifoiniatioM : — Aiiilivw Mi'iccrdii'd in liiiif 1H71, iiiti'stair, ami witlioiit li'aviii<; any liiir or iii'.vt of iviii. Ilo was at ihi' limi' of Ills di'atli seized in IVi- >iiii|>l(' ol iIk' land. liiiin(>diate!y atlfr ills dcii'll the defeiidiints en- ti'i'cil into posM'ssion of tliu land wiilioiit tile iMTinission or assent (pf Ilir Maji'^fy, ami refused (o ;.'ivi' up possessiipii to Her Majesty (ji' to till' inforioant aeiin;r on Iter Irliair 'li tills pro\inee. In 1H7') lilt.' (li'fi'iidniit, Andrew F. Mercer, iii>liliited a suit ill ( 'iiancery a<;ainst the Alloriiey-tieiieral, in wiiich a ihcii'c was pronounced in accor (lame with the prayer of his l>il!, ri'1'irriiii.nt to llie .Master to iinpiire whctlicr the late Andrew Mereer Icll any licirsat law or next of kin iiliii siir\iviii<;. IN'iidin^ tiiat in- (|iiiry, »n issue was trietl at the iiMaiiie of A. F. Mercer, which ivMiltcd in Ii decree that A. 1"'. Miicer was not the lawful son and Liir at law or next of kin of Aiiilrw Mercer, and that the de- fendant, Mridfjet O'Heilly, tiie iiioilicr ol A. F. .Mi'irer, was ne\er iiiii ricd to Andrew Merct-r; i iid iliivitiii;;' the inipiiry fornierly di- nricd to lie proceeded with. Tlmt ";(•* (|(j|ii., and a decree was ninde, "tier ii hcaiiu;,' on further ..irec- lioiis (Ice'iiriii;; that Andrew Mer- wrdied intestate and w'thont heirs or next 111 kill, and that liy reason tliiicol' his real and personal estate imil Iteconic vested ill lier Majesty 111 ri^'hi of her royal pivrof^ativo. Ilio (leiauirer was overruled liy I'ldiiilloLt, V.C., u,„l il„, (lefen- il'iuljA. F. Mvrc'.r, appuuliid troiu th(Mlocish)n. IleciaiuuMl, 1st, tlmt Att.-Ukn. of the application of tho law of cm- Ontauioii. cheat to lands in this province is ^"•"^''«' disputed; 2ud, that if the rijjht exists it l>(doiiji>ed to the Duniiiiion anil not to tlu^ province; Hid, that tiie Crown can only j)r(>eeed Ity coinnion law process of inipiisition of oillce ; -Itli, that if in<[uisition of ollicehiis hiHii rendered inineee.ssary by the Ontario Act of 1S77, H.S.O. c. !)l.,the onlv sulistitiited remedy is an action ot ejeetini>nt, and the Court of Chancery had therefore no jurisdiction." The secoinl (pie -tioii seemed the iiii'ioi'tant one ; and his liordsliij) said he had little to add to what was s: id in Attorney- (ielieri.i of l^Uelie(! r. Attoriley- (ieiieral of the Dominion, Church v. Uhil .-,2 (l Ii. H. 2;MJ [.v«r ttf".i \. niirton, .I.A., said lie found no warrant in the H. N. A. Act for the assertion so frequently inadi- that all ri<;htM or property not expressly <;iven t(j the pros iiico passed to the Doininion. "On the contrary, 1 take it to be clear that the provinces retaine(l all property and rijjhts whi(di were previously vested in theiii under the coimti- tulioiial .Vc's ihcn in force, except those whiel, by the Ciiufederation .Vet are taken fioin tlieiii and trans- ferred to the l>ominioii. . . In the first place the provinces al- reaiiy existed with a constitution of llu'ir own, with certain propertius, rifihts, assets, and revenues, and these could only be taken from them liy their own «im.sent. or by the le<;ishition of a superior nii- thorily. All lands bclon^in;; to the several prov iliees were, previous to conl'edei'Mtidii, under our form or system of jfovcrnmeiit, vested in the' soveni^jn as a mere matter of form, it lieinir a -Iniple trust for thu beiielit of tiie provinces, lint were then <:raiite(l in the (.jueen's name by the scii'ial liieuteiiant-Uover- nors of the provinces (with the exception of (.'anada, which was then under the immediate froverii- nieiit of the OoveriKii-'feneral), uud uiucc cuufuderutioii, iu u!i the Ml HI rWNi' I .,.Ay '*' '^iR^ 1 jUSI'* •'rm 11 !' 'ii It^': •r:i': iii ilii; Att.-Gen. or Omtabio v. Mbbccr. M':i 512 B.N.A. ACT, ». 100— MEANING OF " ALL LANDS," provincfs, ^ ruuts from the Crown of public laiuls nro iiiviuinbly iimdc by the Lii'utenniit-Qovt rnors in ILt Majesty's iiaim-, t-xccpt in the caso of Indian lands, which, iK>in iili'.'cts, what do we lind ? Jly see. lOU, all lands belon<;in;; to the pro\iiu-e of Canada, and all sums then due and payable for such lands, shall belonfi to the several i)ro\ inccs of Ontaiio and CJiubcc, in whieh the sjime an- situate, sidijt'cl lo any interest other than that of the pro- vince in the same. The term 'all lands' must be held to include iiny interest which the pr<>\iiiee then iield or was entitled to in the lauds, iii'-liidin^ any reversionary interest or interest incident to the tcnuix'. If not, nodisposiliop what- ever is nuuh-of such .•ntercst,and it will remain in Her Majesty, not iniprcs.sd with any tiiist, a result wliich Would be too absurd to suppose; but yt't that would be the result, treat inj; it as a reversionary interest or mere iiuident to the tcnwrc, for in no portion of tln^ {.'on- fcderation Aci iv it j^iven li the Dominion 'I'h. ri);bt can iie n;- garderui of govcruiutnt tLut the whoUi domain should be vested in Her Majesty, but purely and .solely for the benelit of the nio. vincc. The land is under the sole control of the I)ominit)uaulli(iriii(s. Her Majesty's name is used ly them iti every grant from the Crown in the S4iine way as in muny other matters, as, for instance, in every writ which under provineiul legislation issues from the cimrt.sdf hiw, . . . Neither, then, le. » prerogative (d' the soverei;,ni iionn an incident to the temu'e has the Do- minion, in my opinion, been >liuvvn lo be entitled. I prefer to |(la«! my judgnu'Ut on the grouml I inu,. indicated idxive rallicr tliiui tjiat adopted by the Court i'eitls fiom the dispi.siiii)n lliciv- of, should lu' ntaiiied bv tlie |iio- vinces, and they .so continue lo retain the position ociiiitietl !« I In- surrender to I hem ol llm Crown rigbfx, that on esclieiitlhe escheated hinds should nri>\iiic('H, aiiihcftcil in llif I'arlianii'nt (ti' tln! Dmiiiiiion. Willi Sir \V. ISitfliic, l'..l., SlriiM^'. .I.,ii;;ifcd. FonrniiT, Tii-i'li('iviiM,iin(l(Jwvnnt',.l.l.,i»'«l<'d ilu'ir (iiiinion on tlif ^^ronnd lliiit aiivivMiiiic (h'rlM'd from osi-liojils In SIC'. ll»2 wcrt' pliiffd under I lie imiliol 1)1' ilii- rarliiiinont of Caimdii lis |mrl of tlie consiili- lialcil ivuniic I if ("aiuida . 1MS3, .Iiilv IH. In Jilt' l'ri\.v ('(iiiiicil, Karl of Selliornc, li.C, wiiiMMivciiil llif jiidfinu'iit [lliiMo lii'iiiL' alsd iircsfiit Sir U. Peacock, Sir M K. Sniilli, Sir It. (."oilier, .*»ir K. Coiicli, and Sir A. Holi- liciiisi,'], sail I : " The (inestioii to l)e iliti'iiiiiiH d in lliis ease, is wliotiier laiiil< ill till' |irii\ince of Ontario, ivlifatiil til the Crown for defect nt lii'ii'.s, 'lielDiig' (in till* sense ill wliicli the \erl> is nsed in till' Ifiilish Nortli Anierieu Act, hii?) Ill the province of Ontario III III tlu! Doniinii'ii of Ciuuuhi. "By the !iii|ierial Statute 31 (ii(ir<.'i' IlI.e. ,'U. s. 13, it was pro- viiiiij tliat all hinds whieli shiiiild !»■ llitri'iirier ;;ianttd, within thi! IHiiviiin I't' rpper Canada (now "niarid), siumlit lie <;ranled in free ami ('iMiiiiiiiii s(i('a;{e, in likir manner a- laiiils were then holilen in free iiimI ciiiiiiaiin soeti^re in Kn<;land. rill' iii'ijiii.ieiit liefore their hord- 'lci|is, III! liiiili sides, proceeih-'" i.|mii the a.ssniiiption that the hi ii 'i"« ill (|iie.sti(.n were so liolih'n. "All land in Kn^hmd, in the ImiiiN of luiy snlijeet, was holden "I •unit' Idi'd liy some kind of ser- >i". and wii'. deemed in law to '■::■" I'lrii (iri;;inilly derived from 'III I' i.wii. • ill', I therefore the kinjj ««> si.vcrcifii. lord, or hird para- i""iMil.''illier iiiei!;ateor immediate, "I nil mid iviTV parcel of land W|ili;iitlM. iviilin' (Co. hitt. (!").\). •Ill' kin;; had ' iloiiiiuiidn liirnl- "III,' llu' siil,|,.,'( • citminium ntiU " ('4'i/', Ia|. Ihe word ' tenure' sij^nilietl this rohition of tenant to Att.-Ubv. op lord. Free or common socnsie V'tabioi'. c .1 • . in Mkuckb. was one ot the ancient modes ot tenure (' A man may hold of liis loril by fealty only, and such tenure is tenure in soeajfe,' Litt, sec. 118), which liy the statnto 12 Ch. Il.e. 'Jl. was siih.stitufed throu '\\\-- i w< m 511 n.N.A. ACT, s. 109.— CIVIL LIST ACTS. Att.-0«n. of Ontario c. Mkiic-kii. M: !:'! . ! I i ■!•< lis it' fi'din llif Icniuil, wliirli is ccr- tiiiiiiy not lU'ciinitf. 'I'lu* truant's cstntc (siilijcct to miv cliarfjos ii|i(tii it wliicii lie iimv Imvi' ci-fiittMl) liiis cDiiii' to nil ciiil, mill tlif lord is in ]>\ liis own ri(l to tlit! Crown, wore in Enpiland p«ut of till' casual lii-r .litary ri'Vi'iiiics of till' Crown, ami (siilijfcf to tliosi' |MiW('rs of ilisposilion wliicli were icsi'ivi'il to tlifi sovoiH'i;;!! I»y tlin Ui'strainiii}^ ami Civil List Acts) tlicv were aiiion;^ tlic lici'crial .StJitntc (10 & 11 Vict. c. 71), conlirmiiij^ the Canaihi Ci\il List .\et, passed in I8M) after the iinioii of l'p|M'rai)d Lower Canada, liy which Act the provision made liy the CohaiiiU Le;;islaliirt for the I'harfjes of the Koyal (ioxeriiment ill Canada was accepted and taken, instead of ' all territorial ai.d other revenues,' then at the disposal of the Crown, arisiiiji in that province; over which (as to three-tlfths |ierina- neiitly, ami us to two-lifths diiriii;^ the life of the (^iiecn, ami fill' live years afterwards) the lef^jislatnrc of the province was to have full power of api :;'opriati(Hi. It may lilt remarked that the Civil List Acts of the province of Canada «'oiitaiiied no reservation of ew- cheals, similar to m-c. I'J of each of till! lni|M'rial Ci\il List Acts above referred to. It mii.st have hceii purposely omitted, in (uder that esi'lieats iiii';;lit lie dealt with liy the Uovernment ur LegiHiature of Caiiadi! and not liv tin' ('i ■own, ill whose disposition i|„.v „|||_| have? remained if they lutij i,„t In,.,, in that of the IJidted I'lovincc i)f Canada. "When, therefore, the Hiiti,|| North America Act of |M(i7 |iii>si| the revenue arising fiuni all cs. clients to the Crown, within thr then province of Canada, was* luli. jcct to the disposal and ap|ii()|iiia- tion of the Canadian lie^rislatuiv. " That Act united into on,. ' Dominion,' iimler the lunni' i.| ' Canada,' the former proviiicrs nf Camiihi (which it siihdiviiliil jm,, till two iii'W provinces of OiUdiid and t^neliec, correspondiiij,' wiili what had lieen Itefore IMK) rpiNr and Lower Canada), N'uvu Svnuu^ and New Brunswick. It isIhI,. lisheil a Dominion (inveriiiiu'ntiiiKl Legislature and provincinl (inMin ments and Legislatures, iiiakiii<.' such n division ami it|)|iiii'tioiiiiii'iii lietween them of powers. ns|n]ii.i hilities, and rights as was t!i(iii;'lii expedient. In particular, it im po.sed u|K)n the Doiuiiiioii tin' chargfi of the general piiMir debts of the several prc-exi-liii;' provinces, and ve.ted in tin' lli minion (subject to excepliiiii«, m which the present ipiesiion inniiilv turns) the general piiMic ri'Mniii", as then existing, of those pnivimrv This was done by sec. lOlJ nf ilir Act, ective Iiegisiatiiii'> if Canatla, Nova .Scotia, and .Vm Hriinswiek, ln'fore and iit iW Union, had and have iHwtr of appro] iriat ion, except such |)iiiiiiiii< thi'reof as are by this Act ic^'mil to the respective legislnliircsdl'lln- provinces, or are raisi'd liy llnni in accordance with the s|K(i.il |m«if< coid'erred upon them hy tiii- A'l, shall form one eonsoruialiil n'>f line fund, to be appiopiialiil fiT the public service of ("miiuiii, m the manner, and siibjtrt t.i ib- charges, in this Act previdni.' " If there had been i ■.liiiii'- in th" Act leading to a ciipii,llii'ir li'irtMiip"^ iiii<,'lit lm\c 1,11111(1 it iliniciilt to liiilil that tlic rtdiil 'ri'viiiii'H.' ill this M'ction, ,|i,| nut iiii'ltiili- tcrritiirial as well ,i> iiliitT icMMHU's ; or lliiit a title j„ till- Diiiiiinion to tlif ivvciiiics iiiisin^' t'i'oiii piililic laiiilH did not lairv with it a rifjlit of disposal 1111(1 ii|ipr(>pi'iMtioii over tlio lands tli('iiiM'l\c>. I'lih-ss, tlu'ivl'oev, tiic iiiMiiil rcvciiiu', arising from lands rH'licatcd to the Crown iiflcr the riiidii. is ('xc(»pt*'d and rcscrvrd to ihr proNiiiciiil l('<;islatinvs, within ihc mcaiiin;.' of this section, it would sccin to follow that it lie- |iiiii;> to the eoiisoli(lat«'d leveiiiie liiiiil 1)1' the Doiiiinion. If it is so i\uc|it('(l and reserved, it falls ttilliiii >(•(•. rJCi of the Act, whicli 'iiovidcd tliiil ' siieli portions of the ilulics and ic\etnies, over which ill- r(>p('cti\e Icfiislatiires of t'aimdii, Nova Scotia, and New ltriiii>wick had, licl'ore the I'liion, li.iHiT of appropriation, as are hy ilii» Act icx'ived to the respective iioMiniiicnIs or le;;islatiires of tlie |iiiiviiit't's, iiiid all (hities and reve- imcs raised liy them in accordance «iili the special powers conf(>rred ii|«iii tliciii liy this Act, shall, in i:iili pidviiicc, I'oi'iii one consoli- Jiili'd icvciMic fund, to iie appro- priated i'or the piihlic service of ilic province.' " riicir lionlships, for the KiiMiiis alidvc -tatcd, assume the liiinlcii of pi-Dvinji that escheats, "iilccMiuciil Id the Tnioii, are «iliiiii the sdiirccs of rev(Mme ex- '■i|itcd and reserved to tlie pro- unc("*, td rest u|>oii the provinces. Hilt, if all didiiiary territorial re- ^'iiiics arising; within tiie pro- viiHcsuiv so excepted and reserved, II is not (/ /irlori prohalile that 'liis particular kind of casnul I'lTilorial revenue (luit heiiij^ ex- I'lO'lv pi-dvidcMl for) woidd lia\»( '"■'•". ""less l,y accident and over- ;-ii'lit, transferred to the Dominion, lilt' words df the statute n.ust "■'■I'lve their proper con.stnictitm, «lialcvei thai may Im- ; hut, if tliis '- d(ail,ili,l. ,i„. ,„„r^. fonsisteiit and in-ol>ahle construction oiiglit, Arr.-UKN.or in their liordsliips' opinion, to he "''taiiio i'. prelerrcd. And it is a cireuni- staiice not without wei;r|it in the same direction, that, while ' diitii'.x and r(!\ ('lines ' only are appro- priated to the Dominion, the puhli«; pro|M'rty its(df, hy which territorial reveim<»s are produced (as distinct from the n-veiiiies arising from it), is found to In* appropriated to the proxinecH "Tlie words of exception in sec. 102 refer to revenues of two kinds: (I) such portions of the pre-exisliny 'duties and revenues' as were by the Act ' reservetl to the H'spective lejjislatures of the provinces'; and (li) such duties and revenues as nii^lit he ' raised liy them, in a* rdaiice with tlu> H|N'cial powers conferred on them hyliie A<'l.' It is with the former only of these two kinds of rev»!- niies that their liordships art> now eoncerned ; the latter hein^ the produce of that jhiwiM' of 'direct taxation within the provinces, in ordi'r to the raisino; of u reveinie for provincial purposes,' whidi is conferred upon the provincial lcj;islaturt\s hy .sec. It'J of tlie At;t. " 'I'here is only one clause in the Act l>y whi<'h any sources of reve- nue ap|M'ar to lie distinctly re- served to the provinces, viz., the KMMh section : — ' Ail hinds, mines, miiKials, and royalties lK'hm;.'inj» to the several provinces of Canada, Nova Scotia, and New IJrunswick, at the rnioii, and all sums then due or payahle for such lands, mines, minerals, or royalties, shall hcdoiiK to the several provinces of Ontario, (iuulH'c, Nova Scotia, and New Hrunswick, in which the same are silnat(^ or arise, suhject to any trusts existiii^j; in res|R'ct thereof, and to any interest other than that of the judvincc in the same.' The provincial h'fiislaturcs are not, in terms, here mentioned ; hut the words 'shall lndc.it; to the several provinces' arc olivioiisly Kjuivah'iit tothor^' used in see. 126, ' are by this Act reserved to the K K 2 •:'!i ')H) UNA. ACT, H 100 — lERRlTORIAL Uf^VP^M'K, Arr.-aKN. OP Ontahio c. Mkkl'kk, It !,,: !|i i'iy i(S|n'ctivo ^ovcrniiK'iit.M or li';'islii- liiiTH (if the iddvinccM." 'I'liiil lliry (III not n|>|ily to nil lands liclil us pi'ixatc |ii'(i|i<'rly at the time of tlu< Union seems clear from the corre- HIMindin^ lan;;ua<;e of see. 12^), ' no lanils or properly livlonijiny to Canada, or any province, shall lie liiilile to ta.xatioii ' ; where |Mtl>liu pro|H'rty oidy must lie intended. They evidently mean lands, ite., which were, at the time of the I'niiin, in .some sense, and to some e.xlent, piihlici juris : and, in this respect, they rc('ei\«' illustration from another section, the 117th (which their Fiordships do not re- ;fard as otherwise very material), ' the several provint'cs shall letain all their rcs|M'ctivey>«/rwer and rights of the Dominion under s(;cs. !)1 and 102, and therefore cannot throw much light upon the extent of tlio cxccjitions and reservations now in question. "It wa.s not di.sputed, iu the argument for the Dominion at tbu luir, that nil territorial reveDues arising within each proviiicc fmui 'lands' (in which term muyt U' coin|iruhended all estates in land) which, at the time of the Cnidn, lielonged to the Crown, were rf- served to tiie respective iprnvinccs liy see, lt>9; and it was ii(ltiiittc,| that no distinction could, in t|,at res|H'ct, lie nnule lu'twcen Crown huids then nngranted and lamN which had previously rc\ cried lo the Crown hy escheat, lint it was insi.sted that a line wiis drawn at the date of the Union, and ihiil tln' word.s were not siillicicnl in ic serve any lands id'tervvnrds rs. cheated, which, at the linn; of tlic Union, were in private liiuuls, and did not then lielong to the Ciovvn. " If the word ' lands ' li.nl .stood idone, it might have hecn (lilllvnit to resist tlie force of this aifjii. nienl. It would have liecn (lilliculi to say that the right of tliu lonl paramount to future esclieuts was ' land helonging tu him ' nt a tinic when the fee simple was .still in tlie freeholder. If capable of W\u<^ de.scrilHid as an interest in land, it was cerUiinly not a |ircsont piu- priet4U'y right to the land ilsi'll'. 'i'lu; word ' lands,' however, docs not here stjind alone. Tlic rial ((uestion is as to the eilVct ot ilir words ' lands, mines, minerals, ainl royalties' taken together. In iln' Court of ApiM'al in the province uf (Quebec it has been held lliat tiasc words ar(! sullicient to puss sulist- (pieiit escheats ; and for this |)iir- pos(! stress was laid by .some a! bast of the learned judges of tiait court (the others not dissenliii);) on the particular word 'royaltiis' in this context. If 'lands and royalties ' oidy had Iiih-ii niL-ntieiini (vvithout ' nunes ' and ' minerals'), it would have been dear that liie right of escheats (whenever tiny might fall), incident at the liuieuf the Union to the tenure of all sue- age lands held from the (.'i'o«'ii, was a * royalty ' then bel()Mj;iug ti^ the Crown within the proviiRO, so as to be reserved to the province hy this section and excepted t'ruui H.\.A. ACT, s. lOJ).— MKAMINJi OF " MOVAI/riKS." 517 srciii(' Coni't of (iiiiiiilii) that lliis word 'royalties,' ill iiiiiiiii}; jiraiits or leases (wlirt her i;niiiii'il liy the Crown or liy a siiliit'cl), liMS often a s|H'eial sense, •■i;;iiii'viii;; that |iart of the rril- ilimliim which is varialile, and (ii'lM'iiils ii|Kiii the qiiantity of iiiiiii'iiils •{otteii, [t is also true lliiit ill Ci'iiwii ;ri'aiits of iiiiid in iii'ilisli Xdi'tli Ainei'iea the prae- lici' liiis ;;('iieriilly lieen to reservti to till' Crown, not only royal mines, |irii|H'ily so called, Itut minerals P'lii'nilly; aiiii that mining grants (ii- liases had, iiefore the Union, Iki'ii iiiikIc liy the Crown liotii in N'livH Sc'iilia and in New Uriiiis- wick; and that in two Acts of tho pidviiicc of NTova Seotia (one as liM'iiiil iiiiiies and the other lis to iniiii's mid minerals generally) the word ' royiiltii;s ' had lieen used in its siH'ciiil sense as a|>|ilicalde to till' variulile reddcnda in mininw jinints or leases. Another Nova Si'iilia Act of IHH), siirrench'rinfr til tlip |)ioviiicial K'gisltttim' the tirritorial and casual revenues of till' Crown arising within the pro- viuet', wius also referrwl to by Mr. .Fiistice Gwynne. But the iL'niis of that Aet were very i'iiiiilar to tluise now under con- fix ifration ; and if « royalties,' in llio context which we have here to lonsider, do not neoe.ssarily and Nilfly uionn reddendo in mining gniiiLs or leases, neither may they '"' that statute. " It apiiears, however, to their I'Ordshiiis to he u fallacy to assnme inat, because the word ' royalties ' "'this context would not he in- uBioioiis or insensible, if it were '■•'pirded as having reference to mines and iniiiends, it ought, there- fore, to be limited to those sub- jects. They see no reason why it should not have its primary and appropriate sense, as to (at all events) (ill the subjects with which it is here found assiKiiated — lands, as well as mines and minerals. Even as to mines and minerals, it here necessarily signidcs rights be- longing to the Crown, ^M/c vDioHtr. The general subject of the whole Hection is of a high political nature ; it is the attriliiition of royal terri- torial rights, for piirpo.ses of reve- nue and government, to the pro- vinces in which they are situate or arise. It is a sound iiiaxim of law, that every word ought, priiiid ftiric, to be construed in its pri- mary and naturiil sense, unless a secondary or more limited sense is reipiircd liy the subject or the conte.xt. In its primary and Miitiiral sen.se, ' royalties' is merely the Knglish translation or eqiiiMi- leiit of ' rif/'tlif lifts,' \/nrii rrt/ii- lid.'' \jiirason of till' rotorentitli'il te or without [i beeaine for- for any I'aiijf Minister nf lev-Ueiieral of ill. Thcriglit 3ntario to itu! ,s establislii'il. ,11(1 yet l'^'''" r the' proviiKv y is situate, or ■l,,,lt()i)erM)iial for war.t of ..neral of CJu^ ■neral of the U. 2;U), wib liat as regiinl> liecauie a pro- ,ssesseil of an; lerals, anil the let. c. 3. s. 30 uu^ranted or .roviuce should late of traujfir be vpstoil in tho Crown, and ad- ministered by tlio (Toverntnont of Canada for the pnrpose of the Dominion, from whieli, the Minister arirucd, it appeared clear that the 109th section was not applicable to the provinre, and the Act was (lisnllowed. i;i April 1HH7, Prov. Lejj. p. 210. Att.-Gkn. of British Colum- bia V. Att.-Gen. ok Can.vd.a, in S. C. Dec. la, 1887, 14 S.C. R. 345 [Sir W. l^itchie, C.J., Taschereau and Gwynne, J.J., Fonrnier and Henry, J.I., dis-senting], affirming the decision of Exeheqner Court, taken without argninent, which ili'i'ision adjudged that the precion.s metals in, upon, and under the pulilic lauds granted to the do- minion (Toverninent under the Act 47 Vict. (B.C.) c. 14. s. 2, for the purpose of constructing the I'anadiau Pacific Railway, were vested in the Crown as represented liy the Government of Canada, and not as represented by the Govern- ment of British Columbia. Henry, , J., had given judgments in TheQueenv.Farwell.HS.C.R. •^92, and four other cases tried before himat Victoria in 1886, by which he found that the title to the landi comprised in what was called the railway belt of the Canadian Pacitie Railway in British Colum- hia was not vested in Her Majesty the Queen for the use and benefit of Canada, but in Her Majesty for the use and benefit of British Columbia. The case of The Queen I' Farwell had been argued and stood for judgment, and on Dee. 14, 1887, 14 S. C. R. 392, ms reversed by Sir W. Ritchie, C.J., Strong, Fonrnier, and fiwynne, .1.1., flenry, J., dissent- ing. The question was as to the lights of Farwell to " lot 6 " in the district of Kootcnay. He •liiimed the lands in question by virtue of a grant from the British Columbia Government, dated I3th Jan. 1885. Ho made the applica- tion in October, and it wn,s received T"e Qpei bv the Survev()r-(Jeiieral 1!) Nov. Fabwem.. 1883. By tile 47 Vict. (B. C; c. 14., passed 19 J)ec. 1883, amend- ing an Act of 1880, there was ap- propriated in trust to the IJoniinion tlu^ public land.s along the line of the Canadian Railway, wherever it may lie finally located, to a width of 20 inih;s on each sitle. On 19 April 1884, the Dominion passed a simihu' Act. It appears that a portion of tlu; roi/'j of the railway going through Yellow Head Pa.ss wa.s abandoned, and a route going through the How River Pass was adopted. Farwell's claim was situate on the Bow ]{iver Pass. On 20 Nov. 1883, by public notice, the Government of British Columbia reserv ed a belt of land on the Bow River Pass. The Do- minion contended that the Govern- ment of British Columbia had no right to make the grant to Farwell. Fonrnier, J., retained his opinion as to the precious metals, but as re- gards the construction put upon the statute granting provincial lands in aid of the railway, he thought the expressions used were sufficient to convey the lands to the Dominion. Att.-Gen. of British Co- lumbia V. Att.-Gen. of Canada [see above] finally decided these (luestions. In P. C. April 3, 1889, Canad.v 14 App. Cas. 295; 58 L. J. P. C. 88; 60 L. T. 712. Lord Watson, delivering judgment, reversing the S. C. [jiresent also. Lord tfals- Imry, L.C., Lord Fitzgerald, Lord liobhouse, and Lord Macnaghten], said : — " The (piestion involved in this appeal is one of considerable in- terest to the parties, but it will be found to lie within a very narrow compass, when the facts, as to which there is no dispute, are ex[)lained. "By an Order in Council, dated the 16th May 1871, Her Majesty, in pursuance of the enactments of sec. 116 of tiie British North America Act, 1867, was plea.sed to I i Att.-Gen. op British Co- LU.MnlA ('. Att.-Gen. op i ! Att.-Gew. of British Co- LCMBIA V. Att.-Gem. of Canada. I I U ! ?■/ ■! '■■< i i liil 1^':' !lli! 11^ 9 a i 111 9 i 520 B.N.A. ACT, s. 109.— CAN. PAC. RAILWAY. ordnin thnt the provii.i'c of Brilisli Coliiniliia sliould, from tlic '2!)th day of July followiiijj, lie iidiiiitttMl into luul form part of the Dominion of Canada, .sulijcctto tiic provisions of that Act, and to cortain Articles of Union wliich had been (hdy sanctioned by the Parliaments of Canada and by the Le differences arose between tlie two Governments, and these weie iilti- nialely settled, in the yciM' IS.s.'j, by a provisional agreement, wliidi Avas sul'setpiently I'atilieil liv the respective legislatures of Ciinail;! an(l the province. Part of tlio agreement had reference to tlic eleventh Article of Union, wliiili it modified to the following; extern. The Government of British l.'u- lumbia agreed to convey to the Goverinnent of the Dominion, iis therein provided, the piiblie Iniul- along the railway, wherever it might be finally located, to a width of 20 miles on either side of the line, and, in addition, to coiivevtH the Dominion Go\ ■ nuneut tliw aiul a half millions of acies ut land in the Peace River Distiiit, in one rectangular block, east ol the Rocky Mountains, iiiid joining' the North - West Territory of Canada. On the other liaud, tln' Dominion Government undei'tooh, with all convenient speed, to offt'i for sale the lands within tiie rail- way belt, on liberal terms, to actual settlers ; and also to give to persons who had squatted on tliefi' lands a prior right of purchasing the lands improved, at the rate* charged to settlers generally. I" )\viiij; to I'li- B.N.A. ACT, !.. 109.— lUGHT TO GOLD MINES. 521 iKK'onliiiic.' with this uj^reenieut, the iiiixls t'onniiif; the niihviiy belt woiv giaiiti'd to the Doiiiiiiion Govcriiniciit, ill terms of tlu' ek'venth Ai'tiele of Union, by an Act of the Legislutiire of Jiritish L'dluiiilMii, 47 Viet. o. 14. s. 2. •' In IXH-i a controversy arose k'twpeii the Dominion and the proviuciiil Governnumt in regard to the gol, judgment of the Board, said (s App. Cas. 778, and 'io(ive,p 517) : 'It appears, however, to their Lordships to be a fallacy Canada, to a.SHume that because the word Att.-Gen. of ♦' royalties " in this context would '^"'tis" Co- . , , , • If • LUMBIA v. not be regarded as inomcioua or .._ r.„„ „„ iuseusu)le, it it were regarded as having reference to mines and min- erals, it ought, therefore, to be limited to tlio.sc! subjects. They see no reason why it shoidd not have its primary and appropriate sense, as to (at all events) nil the subjects with which it is here found associated — lands as well as mines and minerals. Even as to mines and minerals, it here niices- sarily signities rights belonging to the Crown Jure corome.' " It is not necessary, for the piirpo.ses of this appeal, to consider whether the expression ' royalties,' as used in sec. 109, includes jiivd rcijalia other than those connected with lands, mines, and minerals. Attorney-General of Ontario <■. Mercer is an authority to tiie effect that, within the meaning of the clause, the word ' royalties ' comprehends, at least, all revenues arising from the prerogative rights of the Crov n in connection with ' lands,' ' mines,' and ' minerals.' The exception created by the eleventh Article of Union, from the rights - ;)ecially assigned to the province by sec. 109, is of ' lands ' merely. Tlu' expression 'lands' in that Article admittedly carries with it the baser metals, that is to say, ' mines ' and ' minerals,' in the sense of sec. 109. Mines and minerals, in that sense, are inci- dents of land, and, as such, have been invariably granted, in ac- cordance with the uniform course of provincial legislation, to settlers who purchased land in British Columbia. But jura reijalia are not accessories of land ; and their Lordships are of opinion that the rights to which the Dominion Government becjime entitled under the eleventh Article did not, to any extent, derogate from the provin- cial right to * royalties ' connected with mines and minerals, under sec. 109 of the British North America Act. 521 B.N. A. ACT, s. 10}).— KIGHT TO WAS'I'E SL()l'|.:s. 'I 1 i!i W- s Att.-Gbn. op "Their Lonlsliii'S do not doubt Bhitish Co- that thn eleventh Article of Union Arrl'-GEN. or ""gl't b'"'^'' l>«i'i> so expre.>ni not in contemplation. It is right, howe\er, to notice that the Niagara Falls learned Chief Justice refers to a Park v. minute of the Council of British Howard. Columbia containing the recom- mendation of a committee, which was communicated to the Govern- ment of Canada, as evidencing an understanding on the part of the provincial Government, that mines of gold and other precious met^ils were to be conveyed along with the belt lands. The passage upon which the learned Chief Justice relies is in these terms : ' That it be one of the conditions that the Dominion Government, in dealing with lands in the province, shall esttiblish a land system equally as liberal, both as to mining and agricultural industries, as that in force in this pro\ ince at the pre- sent time, and that no delay shall tjike place in throwing open the land for settlement.' The words ' mining and agricultural indus- tries,' taken per se, might be of dubious import, because they would not disclose whether gold digging was referred to as as one of the mining industries. But these in- dustries are described as an inte- gral part of the ' land system ' : and, when it is considered that at the (hile of the report the svslom of land settlement in the piovinci. which inclu'led the ba.sn' metals was regulated by s|)ecial statnto,' and that gold mines, wliidi were not given off to settlers, were ikjI treated as part of that svsteiii, Imt were the subject of .separjitc lc<;is- lation, it becomes appnicnt that th(^ committe" did not iiiaku luiv reference to gold in their rccoiii- mendation. " Their Lordships arc for tbeso reasons of opinion that the jiulcr. ment appealed from iiiust Im re- V( rsed, and that it ought to hf declared that the precious iiictals within the railway belt are vcsti'il in the Crown, subject to the con- ti'ol and disposal of the Govern- ment of British Columhin, and th(!y will humbly advise Her Majesty to that efiEect. There will be no order as to costs." In Niagara Falls Pahk c, Howard, Dec. 12, 1892, Bovd, Ch., 23 O. K. 1, decitled that" a part of the slopes from the to|i of the bank to the water ednc, on the west side of the Nia<;ani river, from the Railway Suspen- sion Bridge to the ferry at Clifton Hou.se, was wa.ste huid of the Crown held for public purposes. Secondly, that there was no evi- dence this slope or " chain reserve' was ever u.sed, or controlled, or set apart for military purposes ; and, thirdly, this being the result of the evidence, the portion in question vested, not in the Dominion, but in the province of Ontario. The ques- tion was rai.sed by the Commis- sioners of the Queen Victoria Niagara Falls Park and the At- torney-General of Ontario against Howard and another to tiy the right to the piece of land in (|iies- tion. Howard hud obtained in 1887 from the Doniinion Govern- ment a lease of the land as forniin;; part of the military or ordnaiiop lands. Subsequently the Cominis- sioners had obtained a giunt of ttf same land from the Ontario Go- I , •! i KS. B.X.A. ACT, s. 109.— GRANT SILENT AS TO GOLD. 525 It' system lirovincc •r metals, il statiitp, liirli Weil' , were iKit vsti'in, but iriitc Ic^is- nvctit that niiike Hiiy cir I'ccoiii- 1' f(ir thi'so ; tho jiulg- ust li(> ri'- ight to lie ous mi'tiils :, an" vi'sti'il 10 till' I'on- Ik' Govorn- imliiii, auil idvisc ITor ct. Thiw osts." :,s Fakk r. 1892, Bind, ■iiled that ii oin the top wiiter eilgt', the Niapmi xa\ Suspen- r_v"iit Clifton ii'iul of tlic lie purposes. WHS no evi- mill reserve" :rollc(l, or set irposes; and, result of the in question iiinion, hut in 0. ThequeS' the Commis- i,.,.n Victoviii ami the At- iitario against ir to try the lanil in art for a iiublic racecourse. It was a chiini for exemption from taxation, and the Eoard hehl that to bring the case within the exemption it must be shown that the land was used solely for public purposes, without any beneficial occupation by individuals, which there was in this case. WooLr.Kv ('. Att.-Okn. or ViCTOIlIA. I -I Mayoh op essendon ii. Blackwood. CI ■ P I < i 1 lij: m t • I Assots coii- iiicteil willi in'oviiiciiil (1(0 its. Ciiimda tn lie liiilile for pro viiiL'iiil debts. TlIK QUKKN r. liELI.EAU. ill I: :l i ,:; 626 RN.A. ACT, .s. 111.— PIIOVINCIAL DEBTS. 110. All assots coiinrctod witli sut^h portions of the public dcht of each province as are assuiucd In that l)roviiico shall bolonj^ to that province. 111. Canada shall he liable for the debts and lia])ili. ties of each province existing at the Union.' • By this section the Dominion becanic rcsponsilile for the di'lita of wicli province. In The Qitkkn V. Beli.K.U', in S. C". 10 Feb. IHSl, 7 S. L\ 11. 5.'}, Fonrnier, Henry, and Ta.sehereaii, J.I., Sir W. Bitchie, CJ.,an(l Gwynne, J.,(lis- sentinfj, aHirininp Fonrnier,.!., in the E.xche(]ner Court, held the Dominion were iial)l(> for certain debentures (and interest from the date of the petition of right), issued under the authority of tlie pro- vince of Canada Act, 1(5 Vict, c. 2.35., by the 'J'rustees of the Quebec Turnjnke Roads. But this decision was reversed by the Judicial Committee, June 20, 1882, 7 App. Cas. 473, on the ground that whatever coustrnction was to be put on the jirovince pay- ing off in 1850-.3 debentures of £25,000 and £8,885, which had been issued under provision.s of an ordinance, 4 Vict. c. 17., and an Act of 8 Vict. c. 55., the deben- tures in question were issued under the 1() Yict. c. 235., and by that Act were given no provincial guaranty, though they had a pre- ference given to them over all that had such guaranty. It appeared that in 1795 it was provided by 36 Geo. 3. c. !)., that all occu- ])iers of lands adjoining the king's highway should keep the same for the breadth of their lands in good repair. In 1841 an ordinance, 4 Vict. c. 17., was passed, and pro- vided that trustees might be ap- pointed for keeping in repair cer- tain roads leading into the city of Quebec, and might raise a fund for that purpose on the security of the tolls [see sec. 21 in judgment be- low]. By sec. 27 of the onliuance, if the money in the hands of the trustees was insuHicicnt to pay tlic interest on the debentures,' tlw Governor of the province mijjlit by his warrant order the Hccciwr- General to jk. ■ it. By ,s Vict. c. 45. £8,882 'in debci'itiircs was raised, and these debcntiu'es tor £25,000 and £8,882 were paid otf (1850 to 18,'>3) out of the general revenue of the province. Then liv Hi Vict. (1853) c. 235. the power's of the tru.stees were extended to other roads, and th(;y were pwn power to issue debentures to a certain amount. Sec. 7 contaiiuHl a proviso that the interest was not to exceed six per cent., and no money was to be advnneed out of provincial f imds for the piiyinoiit of the said interest, and all delicii- tures which were issued under the Act, so far as related to the interest payable, were to have a ])rivile;;o of priority of lien upon all tlie tolls and other moneys at the disposal of the trustees, in preference to the interest imyable upon all deben- tures which ha^l been issued luider the ])rovincial guaranty. These Acts wei'c passed through the legislature of the province of Canada by some one of the re- sponsible ministers of the provincial Government. Following on this Act the trustees raised in deben- tures £30,000 and £40,000. Sec. 13 contained also: "Provided always that the province shall not guarantee or be liable for the priu- cipal or interest of any debentiiies issued under this Act, nor shall any money be advance! or iwid therefor out of the provincial funds." The respondents repie- RN.A. ACT, H. Ill— TiTAB. FOR DEBENTURES. 627 Srlltt'il liol'li'is <'l •!" ■ illi()\(' (IcIm'II- tiiivs, issiii'il for the loans of t'lUM""' "'"' iilU.OlH). 'riiL'y foii- tfiiilcil that l)y sues. Ill, 112, and ji;{ of till' R.N. A. Act, all (lolits iiul lialiilities exi.stinj;; at the I'liioii, wlii'tlier due in eoiinectiou with tuiiipike trusts or of any (itlicr kiiiil, were imposed on the Ddiiiiiiioii Government. Secondly, lliiit the province ))y paying off t:i!5,()(«) and tlH.HHiJ in lH5(.)-53, ■.Imwt'd that Hie province considertid tiny were lialile for the principal. The appelhmts, representin<; the Dumiiiioii, eontended that the tiirn- ]iiki' trustees were never agents of till' Crown. They were trustees with siieh powers in the public in- terest as are vested in a corpora- tion. That the effect of li, 10, 18, •>\. 22, 2;i, 2(>, and 27 sections of the ordiiiaiiee, T Vict. c. 17., was to iivate a trust for the working and repiiiiiug of roads, and to authorize siieli tni-sts to borrow on the sioiirity uf the tolls for tho.se pur- poses, Imt not to impose any lia- iiility whatever in respect of sums so borrowed by the trust in the luovinee. Leave to api)eal was ^rrmitod 12 Nov. 1 881, as the ques- tion involved other turnpike trusts to the extent of £200,01)0, and the iiuestion was of pid)lie interest to till' taxpayer of the Dominion. The respondents were allowed to io(l;,'e !i cross appeal against that liiut of the judgment giving in- terest only from the period of lodging the petition of right. Sir .faine.s Hanneu said [there lieinj; also present Sir B. Peacock, Sir M. E. Smith, Sir R. Collier, iiiul Sir 11. Couch] :— "T'his is a petition of right "gainst the Crown by the hohlers of eertain debentures issued by ' The Trustees of the Quebec Turn- pike Roads,' for payment of the liriueipal and interest of their ilebentures. " No (juestion has been raised as to 'he form in which the suppliants seek to have the cpiestion in dis- pute determined, which is, whether the hile provim-e of Canada was The Qlkkn v. liaide to pay the principal and Hki.i.kah. inttirest of the delxMitures sued on. My the Mritish North America Act, 18(»7, the debts and liabilities of each province existing at the Union were transferred to the Dominion of Canada, and it is coneedeil by the Crown that if the debentures i-reated a debt on the part of the |)rovin('e, the suppliants an? entitled to a decision in their favour. "The delmntures purport on their face to be, and were in fael, i.Hsued under the authority of an Act of Parliament of the province of Canada (Hi Vict. c. 2.'15.), intitided, ' An Act to authorize the trustees of the Quebec Turnpike Roads to issue diibentines to a certain amount, and to place certain roads under their control.' " The debentures are in form certificates by the trustees, that under the authority of the said Act therti had been borrowed ami re- ceived from the holder a certain sum bearing interest from the date of the certificate, which sum was reimbursable to the holder or bearer on a day named. "The Act, after reciting that it was expedient to extend the pro- visions of a eertiiin ordinance (4 Viet. c. 17.) to certain roads other than those to which they then extended, and to such further improvements through the trustees of the roads established under the .said ordinance, and that in order to the construction and completion of the roads then undertaken by the trustees, it was expedient to provide for the raising of the necessary funds by the issue of debentures by the said trustees, enacted that the provisions of the said ordinance, and the provisions of all Acts and statutes in force amending the said ordinance, and the powers of the trustees appointed under the said ordinance, should extend or ai)ply to the road in the said Act mentioned, in the same manner as if the said roads had ;|i WJ 528 B.NA. ACT, s 111 —TOLLS AS SKCURIPV : i; ,:M I TiiR QnKRN I'. JM-cii inciitiiii.i'il iind (IcHcriljcd in Hrixkau. t|„. ^„i,i onlinaiicc. " Hv tln' -11(1 1111(1 SllllS('(|ll('llt, .scctioiiH (Idwn to 1111(1 inclusive of tli(! (itli, tlio tniMtccH wore rc- qnii'cd to cxccMitc certain works, and were untliorized to execiito otluM's, and the roads are eiiuiiie- ratod to which the ^)rovisions of the ordinnnce wtire to lie ext('nde(l. "Bytlie 7th section it isenact((l that, in or(l(>r to the nuikiiifj and completion of certnin roads de- scribed in a previous Act, and the making of the various improve- ments above mentioned, ' it siioidd be lawful for the trnstecH to raise by loan a sum not excee(lin management, making, and n'|iiiiiii)" of the said roads, and the piivnicirt of the interest on tlic miiiciiml of the delientures theieinal'tir iiii.n. ti(>n(td. "Tiie 21st section is the iii,,.st important, and is as i'oilows ;— ♦ 21. And be it further (inlaiiicd and enacted, that it shall lie liiwl'nl for the said ti'ustees, as soon alter the passing of this ordiiifiiRc us nmy be expedient, to raise liv wiiv of loan, on tlu' credit and siriiiilv of the tolls hereby autliiiiizcd tu hi' imposed, and of other inom-vs which may come into the p(iss« i-iidn and be at the disixisal of the siiii! trn.stees, under and by \irti:,' ul' this ordinance, and not to he pjiiil out of or chargeable against tiir general revenue of this provinoi', any sum or sums of nioia'y imt exceeding in the whole £2r),(lO() currency.' " l^nless, therefore, il ciiii lie shown that some (pialillciitidii (j1' tho.se words is to he found cx- prcs.sed or implied in the oniiuiiin'c or the stjitutes amending il, it is clear that the sujjpliants lent tbcir money on the credit and sccMrityol the tolls, 'and not to be paid (iiit of or chargeable against tiic reve- nues of the province.' " Their contention is that, ikjI- withstiuuling these words, the pm- vince was bound to pay the delien- tures. The trustees, it is said, weiv the agents of the province, and in that character they boriowiHl iiiouiv for the province to be; applied tu provincial purposes ; thus the pm- vince became the principal debtof, and the tolls are to he ivganled only as a first source of repayiuout of the debt of the province. The.* general propositions ciiiinot affonl assistance in the consideration ot the question we have to (letcrniiiu'. It is of no avail to call the trustees agents of the province, if it is ai'- nutted, as it mu.st be, tLnt tiie H B.N. A. APT, s. 111.— LTIMTTED AGENTS. 529 1(1 I pxlont mill limits of tbfir nponov iii„st be s()Uf,'lit ill tlu' Act of tlic lit'isliitiirc wliifli },'ivfrt llit'iii cxist- iimkc till' trii.stccs llic iwiits of the province, it inii.st lie Jm\,\ tlmt l>y tlicir ooiLstitiitidii ilu'v liiivc aiitiiority to act for tlic proVimr, iiiid to create ohii^'iitions liimlin;: iil»i" it; '""' f'''^ '"'^ "ot l,rii siiiiwii. Tlie trustees are a ciirporatc liedy, the ivb.soliite crea- liim (if tiic legislature, aiul their ri^iits duties, and powers are ex- iliisivi'iv contained and defined in ihc instnuaent iiy which they were iiinii'iKinitcd. Such corporations ;iiv well known to the law as well III' this nmntry as of Canada. They art' created for a ^i^vvtit variety (if |mi'|ios('s, some of local, others of neiicral importance. In tht- prpsMit instance the corporation is cmitwl for the local object of ini- pving the roads round Quebec, iiiiii to this end the trustees are niiiiowercd to borrow money on (vitiiin spccitic terms for the |)iu'- lidscs of the trust as defined in the (inliniiiicc. 'I'lie benefit whu li the lirri\iii('(' niav be supposed to de- rive from the expenditure of the iiioiicv hon'owed, no more imposes II liiiiiility on the province to re|)ay it tlinii it imposes such a liability im the adjoining landowners, the Value of whose property may be in- (Tiiised liy the construction of the roaijs authorized to be made. "In order to ascertain the |io\vf'r.«of the trustees, we niu.st ex- iimiiie the provisions of the ordi- nance. "By the 21st section it appears lliat the loan is to be raised on the ii'Cflit and security of the tolls iiiithoiiml to be imposed, and other iimiieys which may come into their liii>ses.sion, and be at the disposal (if tlie trustees under and by virtue (if the ordinance. On tliis it is oliserved that it does not say the; '^ole' credit and .security of the tolls, &c., but, in the absence of any other credit or security defined [•'v the ordinance, those onlv can lie looke{l to which are expressly S 2340. mentioned. It is, however, evident Titp. Quekn w, that it was for the very purpose of 1'k''-«au. j;uardii! passing of the ordinance, and not afterwards, out of any unappro- priated public moneys in his hands, to purchase for the public uses of the province, and from the said trustees, debentures to an amount not exceeding £10,000 currency, the interest and principal of and on which shall be paid to the Keceiver-General by the said trus- LL M !:'!■! i The QrEKir v. Belleau. I ! 530 B.TTA. ACT, s. 111.— AUTHORIZING LOANS. tees, in the same manner and imder the same provisions as are provided Avith regard to such payments to any lawful holder ■ " such deben- tures. Thus the Governor is enabled to purchase, on behalf of the province, debentures, and so to become thp cred' ^r of the trustees, but this power is limited to three years. "This is wholly inconsistent with the idea that the province was already the debtor for the vhole amount of the loan. The province cnnuot stand in the relation both of debtor and ci'cditor to itself ; and if the process be regarded as a means of redeeming the debt of the province, no reason can be sug- gested why this power of purchas- ing debentures should be limited in amount, and to a period of three years. "The 23rd .section enacts that the debentures shall bear interest, and concludes thus : — * Such in- terest to be paid out of the tolls upon the roads, or out of any other moneys at the disposal of the trus- tees for the purposes of this ordi- nance.' " Here there are not negative words excluding the liability of the province, but the obligation to pay interest primarily follows that of paying the principal, and it lies upon the pa-ty asserting that it is imposed elsewhere to establish it. " So far from there being any- thing in the ordinance to support the contention that the interesi is to be paid by the province, every- thing on the subject of interest tends strongly in the opposite direction. " By the 27th section it is enacted that all arrears of interest shall be paid before any part of the princi- pal sum, ' and if tlie deficiency be sv.2\\ that the funds then at the disposal of the tru.stees shall not be sutficient to pay such arrears, it shall be lawful for the Governor, for the time being, by warrant under his hand, to authorize the Receiver-General to advance to the trustees, out of any nnappro- priated moneys in his hands, s\k'1i sura of money as may, with the funds then at the disposal of the trustees, be sufficient to pay such arrears of interest as aforesaid, ami the amount so advanced shall bo repaid by the trustees to the Receiver-General.' " This provision, enipoweriii<;tli(> Governor-General to authorize a loan to the trustees to eimble them to pay interest, is inconsistent with the idea that the province aviis already under an obligation to pay the interest. " If then the case had rested upon the effect of the ordinance alone, their Lordships are of opinion that no liability on the part of the [)ro- vince for payment of either tlio principal or interest could !je esta- blished ; but it has been argned that by subsequent legislation and ecu. duct the province of Canada has recognised its liability to pay tlio principal and interest of the deben- tures issued under the nnthority of the ordinance of 4 Vict. c. 17. " The first Act which is reliwl on is 12 Vict. c. 5., by which it was provided that it * should be lawful for the Governor to redeem or pur- chase on account of the province all or any of the debentures constitu- ting the public debt of the provinw of Canada, or such or any of the debentures issued by commissioners or other public officers under the authority of the Legislatuiv of Canada, or of the late province of Canada, the interest c principal of which debentures is made a tliurge on the consolidated revenue fund of the province.' It is said that the Government, under thenuthorityof this Act, paid off the debentures issued under the ordinance. " It appears highly i)robabIe,asis stated in the very able judgment of Mr. Justice Gwynne, that the \)om given to tiie Governor by the 2Jtb section of the ordinance to advance, by Avay of loan, money to the irus tees to pay arrears of interest, did, in fact, lead to the idea that the B.N. A. ACT, s. 111.— GOVERNOR'S POWERS. 531 nrovinoe was under a legal liability to pay tiie interest, and it would seem, though the manner in which the transaction was carried out is very ob.scnre, that the debentures issued nndor the ordinance were, in fact, redeemed imder the powers supposed to be conferred by the 12 Vict. c. 5. " All that need be said upon this subject is that, if the Governor did suppose himself to he acting under the authority of this statute, he mistook his powers. The deben- tures issued under the ordinance Jill not constitute part of tl:e public debt of the province, and neither the interest nor principal of them was made a charge on the consoli- dated revenue fund of the proxince. "But, whatever considerations may have led to the redemption by the Government of the debenttires issued under the ordinance, it is clear that they cannot affect the construc- tion of the 16 Viet. c. 235., under which the debentures now in suit were issued. " The 7th section of that Act au- thorized the trustees to raise a loan, which Moan, and the debentures which shall be issued to effect the Nime, and all matters having re- ference to the said loan, shall l)e subject to the provisions of the ordinance with resi)ect to the loan authorized under it ' ; but this ini- [lortaiit proviso is added — * provided nevertheless that the rate of interest shall not exceeit of provincial funds for payment of interest which was given by the '27th section of the ordinance as to the debentures is- sued under it, and which had possi- bly led to misconception as to the liability of the province, is expn r.sly taken away by the 10 Vict. c. 235. astothedeb(mturesnow in question. They must, therefore, be treated as 'ssued not merely on the express enndition that they were not to be paid out of or chargeable against the general revenues of the pro- vince, but with the further ex- press condition that no moneys should be advanced out of provincial funds for the payment of interest. "And again, as though for the purpose of guarding against the possibility of the debenture holders contending that the debentures is- sued under the 16 Vict. c. 235. had the [)ro\ incial guarantee, the proviso to the.7th section enacts that ' all the debentures which shall be issued under this Act, so far as relates to the interest payable thereupon, shall have a privilege of priority of lien upon the tolls, itc, in preference to the interest payable upon all del)en- tiuvs which shall liavc been issued under the [)rovincial guarantee, or which shall hereafter be issued by the said tru.stees iinder the provin- cial guarantee. " What tlebentures liad been or could be issued under the provincial guarantee does nota])pear ; but this at least is cleiU',that the debentures issued under the Act, and now sued on, have no provincial guarantee, since they have a preference given to them over all that have, and are thus distinguished from thorn. " It remains only to consider some general arguments which have been advanced on behalf of the suppli- ants. It has been urged that the Government of the proviace, by redeeming the debentures issued under the ordinance, iiuluced the belief that the same course would be pursued with regard to the de- bentures issued under the Act 16 Vict. c. 235., and that without such belief the debi'uturc holders would not have lent their money on the security of the tolls, &c., which had proved entirely ins.ifHcient even to pay the interest of the former loan. Their Lordships do not desire, by any observations, to diminish the force of these arginnents, if ad- dressed to the proper tribunal. It may be that the Legislature of the province of Caiuida, or that of the Dominion, may see reason to listen to the prayer of the suppliants to LL 2 The Queen v, Belleau. !'■ I hi m The Queen v. Bkm.kac. Debts of On- tario and Quebec. Assets of On- tario and Quebec. :| lif.j 1 h ■* 532 B.N, A. ACT, s. 112— LENDERS AND PKOVINOE. lip relieved in whole or in part from the loss of their money, Avhich has been expended for the benefit of the province. But this tribunal eannot allow itself to be influenced by feelings of sympathy with the in- dividuals affected. Its duty is limited to expressing its opinion upon the legal question submitted to it, and upon that their Lordships entertain no doubt. " Another argument of a similar kind has been based upon a sub- sequent statute of the province of Canada, 20 Vict. c. 125., by which the Quebec turnpike roads were divided into two parts, and by which it is contended some of the deben- ture holders have been deprived of a part of the special fund created for the payment of their loan. As- suming the correctness of this con- tention, it might have been made a ground for opposing the later enactment, or it may now be used by way of appeal to the legislature for redress, but it cannot supply a reason for putting a construction on the obligations created bv the l(i Vict. c. 235., different "from that which must have been put \q)on them immediately after the pas.sing of that statute. " Some minor points have been relied on by the learned judges who have held that the suppliants were entitled to succeed on this petition. It is from no disrespect to those learned judges that these points have not been particularly dealt with, but from a lielifif that, however they may tend to fortify the general argument in support of which they arc used they do not by themselves iiffonl ii basis upon which their L(ir(lslii|is' judgment can be foimded. " For these reasons, their Lord- ships are of opinion that the jiulcr. ment of the Exchequer Court of Canada, as well as the judcrment of the Supreme Court confirniinc the judgment of the Exchequer Court so far as it decided that tlip respondents were entitled to tiie principal of their debentures, liut varying the same by declaring tluit the respondents were entitled, in addition to the principal, to interest from the date of filing the petition of right, are erroneous, and their Lordships will humbly advise Her Majesty that they should be re- versed and judgment entered for the Crown. " Their Lordships are ftu-ther nf opinion, and will advise Her Ma- jesty, that the cross api)eal of the respondents asserting tlie liahiHty of the Crown to [)ay interest on the debentures from tiie al, to interest g the petition 3US, and tlieir ily advise Her diotild lie re- it entered for are further nf .vise Her Ma- , apjienl of tlie (ova Sew Brunswick do not at the Union amount to f^cotia and Now eight million and seven million dollars respectively, they shall respectively receive, by half-yearly payments in advance from the Government of Canada, interest at five per centum per annum on the ditference between the actual amounts of their respective debts and such stipulated amounts. 117. The several provinces shall retain all their ^^bit""rd. respective public property not otherwise disposed of in perty. this Act, subject to the right of Canada to assume any lands or public property required for fortifications or for the defence of the country.^ ' Each province is entitle I to re- tain its own waste lands: St. Cittherine's Milling and Lnmber Company v. The Queen, Dee. 12 1888, 14 App. Cas. 4G. and ante, p. 94; Att.-Gen. of Ontario r. Mercer, Julv 18, 1883, 8 App. Cas. "6"; 52L. J, P. C. 84; 49 L. T. 312; mdante, p. 510. Seeexami- nation of sees. 102, 109, and 1 17, by Lord Watson in the first of the above oases, and in the latter case by Earl Selborne, and com- pare sees. 109, 126, and 125. Sees. 102 and 117 are reconciled by holding that forfeitures and escheats fall into the treasury of the provinces, and not into that of the Dominion : Att.-Gen. of Quebec v. Att.-Qen. of Doniinion, 1876, 2 Mon. Q. B. 236, and ante, p. 500. 118. The following sums shall be paid yearly by ^i^"/,^*°P''°- ';;! 'i.l: ■ i;;- !3 :i n • 1 l( Further grant to New Bruns- wick. iimm Form of pay- ments. 534 B.N. A. ACT, ,s. 118.— PAYMENTS TO PROVINCES. Canada to the several provinces for the support of their governments and legislatures : — DoUnrs. - 80,000 Ontario Quebec Nova Scotia - New Brunswick 70,000 60,000 50,000 260,000 ; and an annual grant in aid of each province shall bo made, equal to eighty cents per head of the population as ascertained bv the census of one thousand cislit hundred and sixty-one, and in the case of Not-a Scotia and New Brunsioick, by each subsequent decennial census until the population of each of those two pro- A'inccs amounts to four hundred thousand souls, at which rate such grant shall thereafter remain. Such grants shall be in full settlement of all future demands on Canada, and shall be paid half-yearly in advance to each province ; but the Government of Canada shall deduct from such grants, as against any province, all sums chargeable as interest on the public debt of that province in excess of the several amounts stipulated in this Act. 119. New Brumtolck shall receive by half-yearly payments in advance from Canada for the period of ten years from the Union an additional alloAvance of sixty-three thousand dollars jier annum ; but as long as the public debt of that province remains under seven million dollars, a deduction equal to the interest at five per centum per annum on such deficiency shall be made from that allowance of sixty-three thousand dollars. 120. All payments to be made under this Act, or in discharge of liabilities created under any Act of the provinces of Canada, Nova Scotia, and New Brunswick respectively, and assumed by Canada, shall, until the Parliament of Canada otherwise directs, be made in B.X.A, ACT, s. 121— FREEDOM OF TRANSIT. 535 such form and manner as may from time to time be ordered by the Governor- General ''n Council. 121. AH articles of the growth, produce, or manu- Canadian ma- facture of any one oi tlie provinces shall, irom and after the Union, be admitted free into each ' of the other provinces. 122. The customs and excise laws of each province Continuance of . . '- customs and shall, subject to the provisions of this Act, continue in excise laws, force until altered by the Parliament of Canada. 123. Where customs duties are, at the Union, Exportation . and importation leviahle on any goods, wares, or merchandises in any as between two two provinces, those goods, wares, and merchandises ^'°^""'*^" may, from and after the Union, be imported from one of those provinces into the other of them on proof of payment of the customs duty leviable thereon in the province of exportation, and on payment of such further amount (if any) of customs duty as is leviable thereon in the province of importation. 124. Nothing in this Act shall affect the right of Lumiier dues ITT. .Tj-1 ill 1 1 -IT.'" ^'-'^ Bruns- New Brunswick to levy the lumber dues provided m wick, chapter fifteen of title three of the Revised Statutes of New Brunswick, or in any Act amending that Act before or after the Union, and not increasing the amount of such dues ; but the lumber of any of the provinces other than Neio Brunswick shall not be subject to such dues.^ ' See Treaty of Washington, 1872, arts. 30, 31, 33 ; Dom. Act, 36 Vict. c. 41. 125. No lands or property belonging to Canada or Exemption of 1 11 -1 t. •. , , ' i ,. 1 public lands, auy province shall be liable to taxation.^ &c. ' No lands belonging to Canade w any province shall be liable to [Miition. Here public lands must Ik intended. They evidently mean lands which were, at the time of ™ Union, in some sense publici pm, and in this respect they re- wive illustration from another section (117) ; see also the corres- ponding section, 125, and sec. 109, where equivalent words are used. Earl Selborne in Att.-Gen. of Ontario v. Mercer, July 18, 1883, 8 App. Cas. 767 ; 52 L. J. P. C. 84 ; 49 L. T. 312; and ante, p. 516: Leprohon v. City of Ottawa, 40 U. C. Q. B. 478; 2 O. A. B. 522. Provincial con- solidated re- venue fund. il : i * I Quirt v, Beo, Att.-Gen. of Ontario v. Mercer. 536 B.TSr.A. ACT, s. 12G.— CONTRAST WITH s. 102. 126. Such portions of the duties and rcA'cmies over which the respective Legislatures of Canada, Nova Scotia, and New Brunsicick had, hefore the Union, power of appro^jvialion as are hy this Act reserved to tlie respective (lOA'erunients or Legislatures of the Provinces, and all duties and revenues raised by them in accordance with the special poAvers confei'red upon them by this Act, shall in each Province foini one consolidated K-evenue Eund, to be appropriated for the Public Service of the province.^ 1 Reed v. Moussemi, 8 S. C. R. 408. This eml)races provincial i-c\t'- mies other than those arising from territorial sonrces, and includes all duties and revenues raised l)y the provinces in accordance with the provisions of the Act, and favours the right of the Crown for the benefit of the province, because it describes the interest of the pro- vinces as a right of appropriation to the public service; and seeing the successive decisions of the Judicial Counnittee, Att.-Gen. of Ontario f. Mcrcei', 8 Apj). Cas. 7U7 ; St. Catherine's ^lilling anil Lum- ber Co. V. The Queen, 14 App. Cas. 4G; Att.-Gen. of British Columbia V. Att.-Gen. of Canada, 14 App. Cas. 295, in the case of territorial revenues, are based on the general recognition of Her Majesty's con- tinued sovereignty under the Act of 1867, so far as regards \e.sting in the Crpvvn, the siune conse- (juence must follow in the ca.se of provincial revenues which are not territorial : IMaritime Bank of Canada v. New Brunswick Re- ceiver-General, [1892] A. C. at p. 444. Sec ante, p. 29<5. Earl Selborne, in Att.-Gen. OF Ontario v. Mehcer, Julv 18, 1883, 8 App. Cas. 767 ; 52 L. J. P. C. 84; 49 L. T. 312; ante, p. 515, held that the words in sec. 102, "shall belong to the several provinces," were equiva- lent to those ujed iu this Section (126), and "are by this Act rcspncd to the respective govenimciits or legislatiu'es of the provinces," Ami his Lordship coiitinuLMl— " Tliiit they do not apply to all lands licM as private property at the time of the Union seems clear from the cor- responding language of sec. 12.5, " No lands or property helongiii;; to Canada or any province shall be liable to taxation," wluM'e public property only nmst be intemlcd. They evidently mean hauls, kv., which were at the time of tlu' Union in .some sense and to soi. ^ extent piiblici juris; and in this respect they receive illiistriitions from another section, the 117th.'' In Quirt v. Rec, 'Nov. Ki, 1891, 19 S. C. R. oIO, the Do- minion Parliament incorporateil trustees, giving them power, so hir as was neces.sary for the wincliug up of the U])per Canadian Bank, which was insolvent, to cany on the same. By a snbseiincnt Act they transferred to the Dominion Government all the property of the bank vested in the trustet-v Amongst the assets was a piece of mortgaged land, and this was sold to pay the Ontario assessment tai The ' Dominion claimed it wfl'^ Crown property and was not sub- ject to taxntion.'TheSii])rcuie Court held the Acts above meiitioneihvero valid and intra vires, and that tlie land was not subject to taxation, Sec a note of this case, mite, sub- .sec. 21, .sec. 91, ante, !>. 85. S:^^ B.N.A. ACT, H. 129.— POWER TO ALTER LAWS. 537 lines over d((, Nova le Union, rosevA'cd 'OS of the L by them v\v(\ upon t'oi'in one ed for tlic 5 Act rt'Sfrvcil vi'niuionts or viiiw's." Ami uicd— " Tliiit alllmuls kid t the time of from tlm coi'- ot sec 125, I'ty helonginj; irovinee shall ' whcru public lit" inteudcd. II huuls, itc, tiino of till' and to SOI. " ; and in this illiistnitiiins the 117th.'' Nov. u;, 510, the Do- ineorporateil power, so tar the windiug nadian Bank, to carry ou bscqiient Act he Dominion iroperty of the the trustet.*. vas a piece of this was soli! isessment tax iuied ii w!!^ \v!is not sii'^- upreme Court entionedwei'i; and that the t to taxation. ISP, ante, sub- p. 85. S/>S^ IX. — Miscellaneous Provisions. Geno'ftl. 127. H' any person, beini? at the passing of this Act ^^o'c^ncniors a member of the Legislative Council of Canada, Nova hoing Senators. l^cotia, or New Brunswick, to whom a place in the Senate is offered, docs not within thirty days thereafter, bv writing under his hand, addressed to the Governor- General of the province of Canada or to the Lieutenant- Governor of Nova Scotia or New Brunswick (as the ctise may be), accept the same, he shall he deemed to have declined the same; and any person avIio, being at the passing of this Act a member of the Legislative Cowicil of Nova Scotia or New Brunswick, accepts a place in the Senate, shall thereby vacate his seat in !il. snch Legislative Council. 128. Everv memher of the Senate or House of Oath of aiie- . gianco, &c. Commons of Canada shall, before taking his seat therein, take and subscribe before the Governor- General, or some person authorized by him, ant, every member of a Legislative Council or Legislative Assemhly of any province shall, before taking his seat therein, take and subscribe before the Lieutenant-Governor of tlie province, or some person authorized by him, the oath of allegiance contained in tlie Fifth Schedvile to tliis Act ; and every member of the Senate of Canada and every member of the Legislative Council of Quebec shall also, before taking his scat therein, take and sul)scril)c before the Governor-General, or some person authorized by him, the declaration of quahfication contained in the same schedule. 129. Except as otherwise provided bv this Act, all Continuance of I . „ , _.,. existing laws, iaws m force in Canada, Nova Scotia, or New Brans- courts, officers, wick at the Union, and all courts of civil and criminal jurisdiction, and all legal commissions, powers, and authorities, and all officers, judicial, administrative, and ministerial, existing therein at the Union, shall con- tinue in Ontario, Quebec, Nova Scotia, and New Brum- !: li ii! ! ;! Vm II I : i;:; iiili ': 1 \ '■■. - ^ lllH- 5'; I! If" q B38 B.N. A. ACT, s. 120— DEATH SENTENCE, RESPITE. wick respectively, as if the Union had not heen made • subject, nevertheless (except with respect to such as are enacted hy or exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland), to be repealed, abolished, or altered by the Parliament of Canada, or by the legislature of the respective province, according to the authority of the Parliament or of that legislature under this Act.^ dobie v. thk Temporalities Board, EiEL V. The Queen. 1 See Valin v. Lnnglois, 3 Can. S. C. 1, and ante, p. 18. In I)(iniK V. TiiE Temi'ORAli- TiEs Board, 21 Jan. 1882, 1 App. Cas. 13G; 51 L. J. P. C. 2() ; 46 L. T. 1, on ajjpi-al from Queen's Bench, Lower Canada, the question was whether the Legislature of Quebec had power by its Act in 1875, 38 Vict. c. 64., to niodifv or re])eal enactments of a statute passed by the province of Canada in 1858, 22 Vict. c. 66., for tlie purpose of incorjioratinfj a Board of Management of the funds (.9127,448.5) '>f the Presbyterian Chtu'ch of Canada in connection with the Church of Scotland. The Judicial Committee held that siich an Act was ultra vires, and 'Lat an Act of the Dominion was necessary. [(Sec full report of this case, ante, p. 272,] The Dominion Act 43 Vict, c. 25. provided for criminal trials before two magistrates and six jurymen instead of, as in England, a judge and 12 jurymen. By Imperial Act 34 & 35 Vict. c. 28., the Dominion was given ]iower to pass any Act for the administration, peace, order, and good government of any territory not for the time being included in any province. Held that under 43 Vict, c, 25, the prisoner was properly tried, the words of the imperial statute being apt to authorize the utmost discre- tion of enactment for the attain- ment of the objects pointed to. Kiel V. The Queen, Oct. 22, 1885, 10 App. Cas. 675. 13 Oct. 1885. An applicntioii was made this day to grant an ad- journment of the hearing of Ricl's petition for leave to appeal from Q. B. Manitoba. The grounds for the application were that the Ca- nadian coinisel with the full facts and documents had not airivtd. That with the information to iiaiid it would be utterly impos^s^ible to state the grounds of appeal: (1) The evidence was not taken down in wi'iting, as shorthand notes cannot be called taking in writing ; (2) ou appeal to Ct. of Q. B. Kiel wa« not permitted to be present ; (3) tliat the stipendiary magistrate who took the evidence had no jurisdiction to try the prisoner. Lord Halsbury, L.C., said: It is impossible to conjecture a case in which there was less substantial material afforded for delay. But looking to the extreme gravity of the issue involved, their Lordships are compelled to come to the con- clusion that they ought to yield the delay. During these proceed- ings Kiel was granted a further respite. Ou 21 Oct. 1885 [present Hals- bury, L.C., Lord Fitzgerald, Lord Monkswell, Lord Hobhousc, Lord Esher, M.E., and Sir Barnes Pea- cock], the application came on to be heard. It appeared liiel had been sentenced to death in the North-West Territories of Canada, and tliat sentence had been con- firmed on appeal by the Q. B., Manitoba. By the B. N. A. Act, 1871, the North- West Territo- ries became part of the Dominion. B.N.A. ACT, H. 129.— CRIMINAL CASE. 539 The Domiuiou passed tlio North- West Territories Act, 1880, which I'ave power to try "all criminal luses" liy a tribunal of two magis- trates (one a stipendiary magistrate iiml tlie other a justice of the peace) and a jury of six, instead of a judge nnd 12 jurymen, as in Eng- land. Kiel's counsel contended that it WIS not competent for the Dominion Parliament under the Act of 1871 to enact a law wliicli toolv away from a person cliarged witli treason tiie right to he tried liya jury of 12, and whose ver(Uct must be unanimous. [Sir Barnes IVaeock : Tlie same words occur in tlie Act relating to Ind' i under which the Penal Code and the Code of Criminal Procedure had Ihtu passed, and if they had the effect eontundcd for, no trial could take [ilaco in India. Lord Hals- liuiy: What arc the authorities for appeal in a criminal case ?] New South AValcs v. liertrand, 1 L. E. P. C. 520 ; The Queen i: Coote, 1 L. 11. P. C. 599. [*Ve (iiite, p. 118, for other cases.] Lord ]Moukswell : Their Lord- ships have stated on one or two (iccasious that they had jurisdiction to admit a criminal appeal, hut as a rule they never did except under yvry particular circumstances. If the prisoner had been tried without n jury, that would have been a ground of appeal. Lord Fitzgerald: There is no- thing iu the Act of 1880 making the decision of the Q. B. of Mani- toba final. There was only a limited appeal to that Court, and therefore the inference from the Act rather was that the larger light of ap[)cal to the Queen had not been abandoned. 22 Oct. 1885. 10 App. Cas. 675; 55 L. J. P. C. 28 ; 54 L. T. 339. Judgment refusing leave to apiKal was delivered by Lord Hals- bury, L.C, :— "This i.s a petition of Louis Kiel, tried in July last at Regina, in the Nortb-West Territories of Canada, and convicted of high treason, and sentenced to death, for leave to ^'"'' *•• Thb appeal against an order of the '*''^*''' Queen's Bench of Manitoba con- firming that conviction. "It is the usual rule of this Committee not to grant leave to appeal in criminal cases, except where some clear departure from the requirements of justice is al- leged to have taken place. Whether in this case the prerogative to grant an aijpeal still exists, as their Lord- ships have not heard that question argued, they desire neither to affirm nor to deny, but they are clearly of opinion that in this case leave should not be given. The peti- tioner was tried inider the pro- visions of an Act passed by the Canadian Legislature, providing for the administration of criminal jus- tice for those portions of the Nortli- West Ter itory of Canada in which the offence charged against the peti- tioner is alh-ired to have been com- mitted. No question has been raised that the facts as alleged were not proved to have taken place, nor was it denied before the origjnal tribunal, or before the Court of Appeal in Manitoba, that the acts attributed to the petitioner amount- ed to the crime of high treason. "The defence upon the facts sought to be established before the jury was, that the petitioner was not responsible for his acts by reason of mental infirmity. Tlie jury before whom the petitioner was tried negatived that defence, and no argument has been pre- sented to their Lordships directed to show that that finding was otherwise than correct. Of the ob- ji'ctions raised on the face of the petition two points only seem to be capable of plausible or, indeed, in- telligible expression, and they have been urgtnl before their Lordships with as much force as was possible, and as fully and completely in their Lordships' opinion as it would have been if leave to appeal had been granted, and they have been dealt with by the judgments of the Court of Apjical in Manitoba i 11^ '.I 'I''lii :i'->\ !:l Ilii !i ! t'(f Kiel v. Tim Queen. 'I I 540 B.N'.A. ACT, s. 129.— ENGLISH AND DOM. LAW. witli a patience, |puniin<;, niul ability that leav«'s very little to be said upon them. "The first point is tliat the Act itself under which the petitioner was tried was ii/tro viris the Do- minion Parliament to enact. That Parliament derived its authority for tlie pj ssint^ of that statute from the Imperial Statute .'11 & 3.i Vict. c. 2S., which enacted that the Parliament of Canada may from time to time make provision for the administration, peace, order, and }^ood government of any territory not for the time bcMUg included in any province. It is not denied that the place in (piestion was one in respect of whicli the Pin'liament of Canada was authori/.t'd to make such provision, but it appears to be suggested that any provision differing from the provisions which in this country have been made for administration, jieace, order, and good government cannot, as mat- ters of law, be provisions for peace, order, and good government in the territories to which the statute re- lates, and further that, if a coiu't of law should come to the conclusion that a particular enactment was not calcidated as matter of fact and [lolicy to secure peace, ordei', and good government, that they would be entitled to regard any statute directed to those objects, but which a court should think likely to fail of that effect, as ultra vires and beyond the competency of the Do- minion Parliament to enact. " Their Lordships are of opinion that there is not the least colour for such a contention. The words of the statute are apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to. They are words under which the widest departure from criminal procedure us it is known and practised in this country have been authorized in Her Majesty's Indian Empire. Forms of proce- dure unknown to the English com- mon law have there been esta- blished and acted upon, and to throw the least doubt upon thfi validity of pow(!rs convcvcd In- those words would be of widdv mischie\ous conseipuMicc. Tlicri' was indeed a cfjutcntion npon tlio construction of the CaiiadiaiiStatiiti' 43 Vict. c. 25., that liigh tivasun was not incUulcd in the words 'any other crimes,' but it is ton clear for argiunent, even witliont the assistance affonlcd by tlic lOth sub-section, that the Dominion Legislature contempliited high ticii- .son as comprehended witliin tin; language employed. " The second point suggested ns- sumes the validity of the Act, hut is founded upon the nssiiniption that the Act has not been com- plied with. By the 7th sub-scctiou of the 76th section, it is pnnidwl that the nuigistrate shall take or cause to be taken in wrilinj; full notes of the evidence and otlior proceedings thereat, and ' is su;;- gested that this ])rovision has not been complied with, because, tlioiif;li no complaint is made of iiiiiccuiiKv or mistake, it is .said that tlu^ nnics were taken by a shorthand writer under the authority of the nuigis- trate, and by a std)seqncnt ])rn- cess extended into ordinarv writ- ing intelligible to all. Their Lonl- ships desire to exjircss no opinion what woidd have been the efFect if the provision of the statnte liiul not been complied with, liecanse it is unneces.sary to consider whether the provision is directory oidy, or whether the failure to (!oini)ly with it would be ground for error, inns- much as they are of opinion thiit the taking full notes of the evidcmr in shorthand was a causing to lie taken in writing fidl notes of the evidence, and a literal conii)liauee therefore with the statute. " Their Lordships will, tlieiefore, humbly advi.se Her Majesty thiit leave should not be granted to prosecute this appeal." The first step to be taken with a A-iew to test the validity oi an Act of the provincial legislature, is to consider whether the subjert-mBtter B.N.A. ACT, s. 120— REPEAL BY PROVTNCE. 641 of tlip Act falls within any of till' i'liis.'«'s of subjects fniiniemtcd ill sec. 92. If it "iocs not, then the Ai't is of IK) validity. If it tloes, then tlu'sc further (lue.stions may arise, iiiimcly, •' whether, notwithstuntlin;; tlmt it is so, the subject of the Act does nut also fall within one of till' I'liuuit'i'ateil classes of subjects in sir. 01, anil whether the [)ower of the iiiovincial legislature is or is not thereby overborne." [Sra Ldiil Watson" in Dobie c, Tennjo- nilitii's Boanl, 21 Jan. 18H2 ; 7 Apii. Cas. i;}6 ; 51 L. J. P. 0. 20 ; ■10 L. T, 1 ; anil ante, p. 278.] In GiMi'FiTir r. Kioux, .Tune 21). 1H83, <> Legal News, 21 1, it was lielil that the Ontario Legislaturi^ coiilil nut repeal the Tcmix'ranee Act of 1804, 27 & 28 Viet. (Ontario) c. 18., by a provincial Act passed after confederation, on the ground that the province could not repeal what they could not re- enact [See also Hart v. Corp. of Missisiiuoi, 3 Q. L. U. 180; Cooey I". Miniicipality of Bronie, 21 h. 0. J. 182 ; Cowan r. Wright, 1870, 23 Grant (ilO ; lie Goodhue, 19 (rrant 30() ; Bourgoln i*. La Coinpagnia Du Cheinin de Fer do Montreal, &v., 5 App. Cas. oSl,4J) L. .1. P. C. 08 ; Evans r. Hud-n, 22 L. C. J. 2()8 ; Leprohon i-. Cor;, of Ottawa, 2 Tupp. 522, 10 U. C. !!. 478; and the Att.-Gen. of Ontavio i: Att.-Gen. of Canada (Tie Pro- hibition Liquor Case), post, Ap- pendix C. Oripfitii t; U10U.X. 130. Until the Parliamont of Canada otherwise Transfer of , - . . ofncors to provides, all officers or the several provinces having Canada, duties to discharge, in relation to matters other than those coming within the classes of suhjccts hy this Act assigned exclusively to the legislatures of the pro- vinces, shall he officers of Canada, and shall continue to discharge the duties of their respective offices under the same liahilities, responsihilities, and penalties as if tlie Union had not been made. 131. Until the Parliament of Canada otherwise Appointment of provides, the Governor-General in Council may from '"'^^ '^ time to time appoint such officers as the Governor- General in Council deems necessary or proper for the effectual execution of this Act. 132. The Parliament and Government of Canada '^J'^'^^y °^''e*" shall have all powers necessary or proper for performing the obligations of Canada or of any province thereof, as part of the British Empire, towards foreign countries, arising under treaties between the Empire and such foreign countries.^ ^It was held In re Charles dition Act, 1870 (32 & 33 Vict. /» r« Chablbs Worms, writ of Habeas Corpus, c. 52.), Imperial, applied to Canada^ '^^•"""• 22 L, C. J. 109, that the Extra, and was not inconsistent with this Tl M: I I 'II J!! 1. 1 ' I 1 1 542 RN.A. ACT, s. 132— EXTUADITIOX ACTS. In rt Charlesi AVOHMS. Hoction. And the Caniuliiin Extra- dition Act, lH(!n (;U Vict. c. 94.), acconlin}^ to Doiion, ('..!., niM,'*t ho. taken as part of tlif Act of 1H70. See Inipciial Act 3(5 & 37 Vict. f. fiO, [post, ScluMJlllc A.]; Hll,l Dominion Acts -K) Vict c 2') 4r) Vict. cc. lit). 21. J aii.l Itisf' IHHO.c. 142. ' ■ Use of English and French languages. ■HI Appointment of executive oflBcers for Ontario and Quebec. I 133. Eithe th(? English or Eroncli langimafc ninv 1)0 used by any person in the (lcl)at(«s of the Houses of the rarliament of Canada, and of the Houses of the Legislature of Quohpc ; and hoth those languages sliall Ijo used in the resj^ective records and journals of those Houses ; and either of those languages may ho used by any person or in any pleading or process In or is.suing from any court of Canada established uiuler this Act, and in or from all or any of the courts of Quebec. The Acts of the Parliament of Canada and of iho Legislature of Qnchec shall be printed and piihlislied in both those languages. Ontario and Quebec. 134. Until the Legislature of Ontario or of Quehc otherAvise provides, the Lieutenant-Governors of Ontario and Quebec may each appoint under the great seal of the province the following officers, to hold office durinj,' pleasure, that is to say, — the Attorney-General, the Secretary and Registrar of the province, the Treasurer of the province, the Commissioner of Crown Ltiuls, and the Commissioner of Agriculture and Public "Works, and in the case of Quebec the Solicitor-General, and may, by order of the Lieutenant-Governor in Couucil, from time to time prescribe the duties of those oflBcers, and of the several departments over -which thoy shall preside or to which they shall belong, and of the officers and clerks thereof, and may also appoint other and additional officers to hold office during pleasure, and may from time to time prescribe the duties of those officers, and of the several departments over n.N.A. ACT, 8. 135— PROVINCIAL SEALS. 648 ■ ■■« which thoy shall preside or to which they shall belong, and of the ofTiccrs and clerks thereof.^ 1 xiie {^reat hphI of each pro- was Htill to bo used notwlth- vince lis lioiii^ the iiioilo in wliich stundiuf^ (.-oiifederntion. the .soviTfif,'!! i)o\ver is Hi",'uilletl, 135. Until the Legislature of Ontario or Quebec Powew, dutio otherwise provides, all rights, powers, duties, lunctions, tivoofflcew. rospoiisibilities, or autiioritios at the passing of this Act vested in or imposed on the Attorney-General, Sohcitor-Genoral, Secretary and R{»gistrar of the Pro- vinco of Canada, Minister of Finance, Commissioner of Crown Lands, Comraission(n' of Public Works, and Mniister of iVgriculture and Receiver-General, by any law, statute, or ordinance of Upper Canada, Lower Ciinada, or Canada, and not repugnant to this Act, shall be vested in or imposed on any officer to be appointed by the Lieutenant-Governor for the dis- charge of the same or any of them; and tlie Com- missioner of Agriculture and Public Works shall per- form the duties and functions of the office of Minister of Agriculture at the passing of this Act imposed by the law of the province of Canada, as well as those of the Commissioner of Public Works. 136. Until altered by the Lieutenant-Governor in Great acais. Council, the great seals of Ontario and Quebec re- spectively shall be the same, or of the same design, as those used in the Provinces of Upper Canada and Lower Canada respectively before their Union as the Province of Canada} il 'ill 1(1 ' Shortly after confeileration, seals were designed for all four pro- vinces and for the Dominion. A combination of those seals which ^eie accepted by the provinces formed the seal of Canada. Off. Can. Gaz., 20 Nov. 1M69. Nova Scotia neglected to use the new seal, but continued to use its old of the Queen and said to be formed of arms granted to it in the time of Charles I. As to the validity of acts done under the old seal of Nova Scotia, see Ritchie v, Lenoir, 11 S. C. N. S. (2 Russ. & G.) 450. 3 S. C. R. 575, and for the con- lirmation of all acts done under the old seal, see 40 Vict. (Doni.) c. 3. seal, transmitted on the accession and 40 Vict. (N.S.) c. 2. 137. The words '* and from thence to the end of Construction of the then next ensuing session of the Legislature," or ^^^p""*^ "*"• Mi il I M 544 BN.A. ACT, s. I3M.— PT^OCLAMATTONS. words to the same effect, used in any temporary Act of the province of Canada not expired before the Union, shall be construed to extend and apply to the next session of the Parliament ot Canada if the sub- ject-matter of the Act is within the powers of the same as defined by this Act, or to the next sessions of the Legislatures of Ontario and Quebec respectively if the subject-matter of the Act is within the powers of the same as defined by this Act.^ * Reg. V. Reno and Anderson, where an old Act of Caiiiula was continued. 4 Practice Repts. of Justice, 281. ^«n!°/"°''^ '° 138. From and after the Union the use of the words " Tipper Canada " instead of " Ontario^^ or " Lower Canada " instead of " Quebec," in any deed, writ, process, pleading, document, matter, or tliinf», shall not invalidate the same. names. As to issue of proclamations before Union to commence after Union. At> to issue of proclamations after Union. 139. Any proclamation under the great seal of the province of Canada issued before the Union to take effect at a time Avliich is subsequent to the Union, whether relating to that province, or to Zipper Canada, or to Lower Canada, and the several matters and things therein proclaimed, shall bo and continue of like force and effect as if the Union had not been made. 140. Any procla nation which is authorized by any Act of the Legislature of the province of Canada to be issued under the great seal of the province of Canada, whether relating to that province or to Upper Canada or to Lower Canada, and which is not issued before the Union, may be issued by the Lieutenant- Governor of Onia7'io or of Quebec, as its subject- matter requires, under the great seal thereof; and from and after the issue of such proclamation, the same and the several matters and things therein pro- claimed shall be and continue of the like force and effect in Ontario or Quebec as if the Union had not been made. •avy Act Eoro the V to the tho suh- ^ of the ; sessions pectively, e powers Caniida was le of the o;'/o," or any deed, or thill!?, B.N.A. ACT, s. 141.— ARBITRATION. 545 141. The penitentiary of the province of Canada Penitentiary, shall, until the Parliament of Canada otherwise pro- vides, be and continue the penitentiary of Ontario and of Quebec. 142. The division and adiustment of the debts, Arbitration rt- , . •' specting debti, credits, liabilities, jjroperties and assets of Upper &c. Canada and Lower Canada shall be referred to the arbitmment of three arbitrators, one chosen by the Government of Ontario, one by the Government of Quebec, and one by the Government of Canada, and the selection of the arbitmtors shall not be made until tiie Parliament of Canada and the Legislatures of Ontario and Quebec have met; and the arbitrator chosen by the Government of Canada shall not be a resident either in Ontario or in Quebec} i ! ;oal of the (U to take 10 Union, ?r Canada, ittors and ontinue of not been ed by any Canacla to ovince of to Upper not issued lieutonant- ; subject" cof; and nation, the levein pro- force and ■on had not ' The case of The Province of Court of Lower Canada has juris- Ontario v. The Province of Quebec di-tion over an arbitrator appointed was in the P. C. March 1 1, 1878. by the Government of the Dorai- In Att.-Gen. of Quebec v. nion, under this section, while such Gray, 31 Oct. 1871, 15 L. C. J. arbitrator was acting within the 306, it was held the Superior province of Quebec. 143. The Governor-General in Council mav, from Division of *„, records. tune to time, order that such and so many or the records, books, and documents of the province of Canada as ho thinks fit shall be ai^^ropriated and delivered either to Ontario or to Quebec, and the same shall thenceforth be the property of that province; or any copy thereof or extract therefrom, duly certi- fied by the officer having charge of the original thereof, shall be admitted as evidence. 144. The Lieutenant-Governor of Quebec may from Constitution of i; i. i- , , . , , townships in lime to time, by proclamation under the great seal Quebec-, f"* the province, to take effect from a day to be ap- pomted therein, constitute townships in those parts of the province of Quebec in which townships are not ¥:\ \ 9 23^'^. M M iT. 546 B.N. A. ACT, s. 146.— ADMISSION OF COLOXTES. ![ !1 ■ilUil IT H ' ! Hi 1 H. rf f if then already constituted, and fix the metes and hounds thereof. X. — Inier-Colonial Railway. Duty of Go- 145. Inasmuch as the provinces of Caiiado, Xoca Ternment and ... -^'"tii Parliament of ScoUtt, and Ncio Bvunsioick have joined in a doclava- railway herein tiou that the constructiou of the luter-Colonial Rail- described. ^^^ j^ esscutial to the consolidation of the Union of British North America, and to the assent thereto of Nova Scotia and Neto Brunsimck, and have conse- quently agreed that provision should he made for its immediate construction by the Government of Canada ; therefore, in order to give effect to that agreement, it shall he the duty of the Government and Parlia- ment of Canada to provide for the cominoncement within six months after the Union of a i-aihvay con- necting the river St. Lawrence with the city of Salifax in Nova Scotia, and for the construction thereof without intermission and the completion thereof with all practicable speed. XI. — Admission of Othek Coloxies. Power to admit 146. It shall bo lawful for the Queen, l)v and Newfoundland, > ■, t t > o -r -«r- tt'ii &c. into the With tlic advico of Her Majesty s most Ilonourablo Privy Council, on addresses from the Houses of tho Parliament of Canada, and from the Houses of tlio respective Legislatures of the colonies or provinces of Netofontidland, Prince Edward Island, and Britkh Columbia, to admit those colonies or provinces, or any of them, into the Union, and, on address from tlio Houses of the Parliament of Canada, to admit Btiperfs Land and the North -Western Territory, or either of them, into the Union, on such terms and conditions in each case as are in the addresses ex- pressed and as the Queen thinks fit to approve, sub- ject to the provisions of this Act; and the provisions of any Order in Council in that behalf shall Iwvo '■'.' if iES. I bounds B.N.A. ACT, s. 147.— NEW PROVINCES. 547 1(1, Novo (loclava- lial Rail- Union of hereto of ie conso- le for its Canada; greemcnt, id Parlia- lencement hvay con- } city of instruction on thereof ])\ and onouvablo ses of tlio t?es of the ovincos of ul British 2CS, or any I'vnm the to admit rritory, or :erms and resses ex* t)rove, sub- provisions shall Iwv'' effect, as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland.^ ! 1 Rupert's Land [see 31 & 32 Vide. 105., .'J2 & 33 Vict. e. 101., and 32 & 33 Vict. (Dom.) c. 3.] iind tlie North-West Territory [,vee Note, ante, p. 5] were admitted into the Union by Order of Her Maje.stv in Council dated 23 Juno 1870. ■ Tiio Imperial Act, 1871, 34 & 35 Vict. e. 28. s. 4, enacted that tlio Dominion Parliament might from time to time provide for the "iuiministration, peace, order, and (.'00(1 go\('rnnient of any territory uot for the time l)eiD^ included in any province. The Dominion Parliament, hy Act 13 Vict. c. 2o. (ISSO), imiilc provision for trial of ciiminals differing from the pro- visions for sue]) trials in England, niinii'ly, that the accused might be trii'd hy two magistrates and a jury i4 i-ix, instead of, as in England, a judjjc ami twelve jurymen. Hchl cnmpetent of the Dominion to so enact. Riel v. The Queen, Oct. 22, ls85,10App.Cas. 675, ante, p.o3H. Dritish Columbia was admitted into the Union by Order in Coun- cil dated 16 May 1871. Prince Edward Island by Order of Her Majesty in Council 26 June 1873. [See 38 Viet. (D.) p. ix.] Gwynne, J., describes the efifect of this section in Att.-Gen. of British Cohunbia v. Att.-Gen. of Canada, 1887, 14 S. C. U. at p. 372, as constituting the provinces wish- ing to enter the Union as inde- pendent powers to the extent of enabling Ihem to negntiate a treaty with the Dominion of Canada, represented by the two Houses of Parliament, as another independent power, and together to agree upon terms upon which the particular province will be received into and lieeome part of the Dominion, " which treat)/, if and when ap- proved of and ratified by Her Majesty in her Privy Council, should have the force and effect of an Act of the Imperial Parliament." [.See also The Manitol)a School Case.«, ante, sec. 93, p. 371]. il:: I' IX' 147. In ease of the admission of Newfoundland and Astorepre- ^ ^ . *' .sentation of Prmcp Edicard Island, or either of them, each shall be Newfoundland f'lititled to a representation in the Senate of Canada of lidward island four incml)crs, and (notwithstanding anything in this '" ^''""*^'" Act) in case of the admission of Newfoundland the normal number of senators shall be seventy-six, and tlicii' maximum number shall be eighty-two ; but Vvince Edicard Island, -when admitted, shall be deemed to l)c comprised in the third of the three divisions into which Canada is, in relatioii to th<^ constitution of tlie '^('iiate, divided by this Act, and accordingly, after the admission of Prince Edicard Island, Avhether New- yoitiidland is admitted or not, the representation of Nova ^cotia and New Bransvlck in the Senate shall, as vaciincies occur, be reduced from twelve to ten mem- 1)1 IS respectively, and the rei)resentation of each of W • h.i 1 J ' i ! 548 B.N.A. ACT, sch. 1.— OLD ELECTORALS. those provinces shall not be increased at any time beyond ten, except under the provisions of this Act for the appointment of three or six additional senators under the direction of the Queen. SCHEDULES. (The first and second schedules, dealing with (A) the electoral dis- trict of Ontario and (B) with the electoral district of Queliee, are now, for the purpose of representa- tion in the House of Commons, as given in Revised Statutes of Ca- nada, c. 6. See that Act nlso for electoral districts of tlie other provinces. The provincial legislatures have provincial statutes fixing their elec- toral districts.) 1. Prescott. 2. Glengarry. 3. Stormont. 4. Dundas. 5. Russell. The first SCHEDULE. Electoral Districts of Ontario. A. Existing Electorat. Divisions. Counties. . 6. Carleton. I 7. Prince Edward. j 8. Halton. 9. Essex. Ridings of Counties. 10. North Riding of Lanark. 22. 11. South Riding of Lanark. j 23. 12. North Riding of Leeds and 24. North Riding of Grenville. worth 13. South Hiding of Leeds. 25. 14. South Riding of Grenvillo. worth 15. East Riding of Northum- 26. berland. 27. 16. West Riding of Northum- 28. berland (excepting therefrom the 29. Township of South Monaghan). 30. 17. East Riding of Durham. 31. 18. West Riding of Durham. 32. 19. North Riding of Ontario. 33. 20. South Riding of Ontario. 34. 21. East Riding of York. West Riding of York. North Riding of York. North Riding of Went- South Riding of ^\'m\■ East Riding of Elgin. West Riding of Elgin. North Riding of Waterloo. South Riding of Waterloo. North Riding of Brant. South Riding of Brant. North Riding of Oxford. South Riding of O-xford. East Riding of Middlesei. Cities, Parts of Cities, and Towns. 35. West Toronto. 36. East Toronto. 37. Hamilton. 38. Ottawa. 39. Kingston. 40. London. 41. Town of Brockvillo, with the Township of Elizabethton thereto attached. 42. Town of Niagara, witl the Township of Niagara thereto attached. 43. Town of Cornwall, vi\l the Township of Cornwall thereto nttnched, B.N.A. ACT, sth. 1.— ELECTORAL DISTRICTS. 549 my time s Act for senators Act also for t' tl\e other islatuves have ins their elec- m\. of York, jg of Yort ling of Went- in: linfl of Vi'iit- of Elgin- g of Elgin. ng of WftteiloO' mg of Waterloo. ig of Brant, ng of Braut. ing of Oxford. ng of Oxford. of Middlesex. ;8. pf ElizabethtoOT Niagara, mtl f Niagara tbertW Cornwall, wit Cornwall tberew 50. B. New Elbctoral Divisions. 44. The Provisional Judicial District of Alooha. The County of Bruce, divided into Two Ridings, to be called respec- tively the North and South Ridings : — 45. The North Riding of Bruce to consist of the Townships of Bury, Lindsay, Eastnor, Albemarle, Amabel, Arran, Bruce, Elderslie, and Langeen, and the Village of Southampton. 46. The South Riding of Bruce to consist of the Townships of Kincardine (including the Village of Kincardine), Greenock, Brant, Huron, Kinross, Culross, and Carrick. The County of Huron, divided into Two Ridings, to be called re- spectively the North and South Ridings : — 47. The North Riding to consist of the Townships of Asbfield, Wawanosh, Turnberry, Howick, Morris, Grey, Colborne, Hullett, including Village of Clinton, and McKillop. 48. The South Riding to consist of the Town of Goderich and the Townships of Goderich, Tuckersniith, Stanley, Hay, Usborne, and Stephen. The County of IVIiddlksex, divided into Ridings, to be called respec- tively the North, West, and East Ridings : — 49. The North Riding to consist of the Townships of McGillivray and Biddulph (taken from the Coui.:^ of Huron), and Williams East, Williams West, Adelaide, and Lobo. The West Riding to consist of the Townships of Delaware, ("arradoc, Metcalfe, Mosa, and Ekfrid, and the Village of Strathroy. [The East Riding to consist of the Townships now embraced therein, and be bounded as it is at present.] The County of Lambton to consist of the Townships of Bosanquet, Warwick, Plympton, Sarnia, Moore, Enniskillen, and Brooke, and the Town of Sarnia. The County of Kent to consist of the Townships of Chatham, Dover, East Tilbury, Romney, Raleigh, and Harwich, and the Town of Chatham. The County of Bothwkll to consist of the Townships of Sonibra, Dawn, and Euphemia (taken from the County of Lambton), and the Townships of Zone, Camden with the Gore thereof, Orford, and Howard (taken from the County of Kent). The County of Grey, divided into Two Ridings, to be called respec- tively the South and North Ridings :— 54. The South Riding to consist of the Townships of Bentinck, Glenelg, Artemesia, Osprey, Normanby, Egremont, Proton, and Melancthon. 55. The North Riding to consist of the Townships of Colliugwood, Euphrasia, Holland, Saint-Vincent, Sydenham, Sullivan, Derby, and Keppel, Sarawak and Brooke, and the Town of Owen Sound. The County of Perth, divided into Two Ridings, to be called re- spectively the South and North Ridings :— '^" The North Riding to consist of the Townships of Wallace, Elma, Logan, Ellice, Mornington, and North Easthoiie, and the Town of Stratford. 53. 56. Ill' lilMl: t 1 550 B.N.A. ACT, sfli. 1— ELECTORAL DISTRICTS. 57. The South Ri(liuf>' to consist of the Townships of BliincharH Downic, South Easthope, Fulhirton, Hiltberl, mui the Viliiiges of Mitchell and Ste. Marys. The County of Wellington, divided into Three Ridiiifj;s, to l)c inUci ivs[)eeti\i'ly North, South, and Centre Ridings: — 58. The North Riding to consist of the Townships of Aiuaniiitii Arthur, Luther, ^linto, Maryborough, Peel, and tlu; Villii(ri. of Mount Forest. 59. The Centre Riding to consist of the Townships of GariitVaxii Erin, Eramosa, Nichoi, and Pilkington, and the Vilhigos ol Fergus and Elora. 00. The South Riding to consist of the Town of Cluelpli, and tlic Townships of Guelph and Puslinch. Tlu' County of Norfolk, divided into 'I'wo Ridings, to Ik^ calkd respectively the South and North Ridings : — Gl. The South Riding to consist of the Townsiiipsof Charlottcvillr, Houghton, Walsingluun, and Woodhousc, and with tlic Goio thereof. ()2. The North Riding to consist of the Townships of ^liildlftoii, ■ Townsend, and Windham, and the Toun of Sinicoc. ().'3. The County of Haldimaxd to consist of the Townslii]i>. oi Oneida, Seneca, Caguya Nortii, Caguya South, Kayulunn, Walpole, and Dunn. 'U. The County of Monck to consist of the Townsliips of ('an- borough and Moultoii, and Sherbrooite, and the Villii'ii' of Dunville (taken from the County of Halilimand),tli(' 'J'ciwn- ships of Caistor and Clainsborough (t^iken from tlio County of Lincoln), and the 'J'ownshii)s of Pelham and WaiiilliTt (taken from the County of Welland). U5. The County of LiNCt)LN to consist of the Towiisliiih ui Clinton, Grantham, Grimsby, and Louth, and the Town ot St. Catherines. 66. The County of Welland to consi;er Canada Building Fund. Lunatic Asylums. Normal School. Court Houses m I Lower Canada. Aylmer, Montreal, Kamouraska, Law Society, Upi^er Canada. Montreal Turnpike Trust. University Permanent Fund. Royal Institution. Consolidated Municipal Loan Fu ud. Upper Canada. Ontario and Quebec conjointly. Consolidated Municipal Loan Fuml, Lower Canada. Agricultural Society, Upper Ca- nada. Lower Canada Legislative Grant, Quebec Fire Loan. Tamisconata Advance Account. Quebec Turnpike Trust. Education — East. Building and Jury Fund, Lower Canada. Municipalities Fund. Lower Canada Suijerior Education Income Fund. t The wIFTH SCHEDULE. Oath of Allegiance. I A.B. do swear, that I will be faithful and bear true allegiance to Her Majesty Queen Victoria. Note. — The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time^ with proper terms of reference thereto. ^m B.Jf.A. ACTS OF 1868, 1871.— RUPERT'S LAND. 668 Deolabatioit or Qualification. « I A.B. do declare and testify, that I am by law duly qualified to be appointed a member of the Senate of Canada [or as the case may 6e], and that I am legally or equitably seised as of freehold for my own use and benefit of lands or tenements held in free and common socage [or seised or possessed for my own use and benefit of lands or tene- ments held in franc-alleu or in roture (as the cane may be),'] in the province of Nova Scotia [or as the case may be] of the value of four thousand dollars over and above all rents, dues, debts, mortgages, charges, and incumbrances due or payable out of or charged on or affecting the same, and that I have not collusively or colourably obtained a title to or become possessed of the said lands and tenements or any part thereof for the purpose of enabling me to become a member of the Senate of Canada [or as the case may be], and that my real and per- sonal property are together worth four thousand dollars over and above my debts and liabilities. For the following Acta see Appendix A. BRITISH NORTH AMERICA ACTS. 31 & 32 Vict. (1868) c. 105. was an Act enabling Her Majesty to accept a surrender upon terms of the lands, privileges, and rights of the Hudson Bay Com- pany in " Eupert's Land." And sec. 5 declared it was competent to Her Majesty by Order in Council, on address from the Houses of Parliament of Canada, to declare that RuperVs Land should be admitted into the Dominion, and thereupon it should be lawful for the Parliament of Canada to establish, &c., within said land all such laws, insti- tutions, and ordinances, and to constitute such courts and officers, as may be necessary for the peace, order, and good government of Her Majesty's subjects and others therein. See the Act in full, post, Appendix A. B. N. A. ACT, 1871. The 34 & 35 Vict. (1871) c. 28. was an Imperial Act confiiming the Manitoba Acts, 1870, 32 & 33 Vict. c. 3. and 33 Vict. c. 3. (two Dominion Acts), (1) providing for the temporary government of Buperfa Xffwrf and the North-Westem Territory; and (2) creating the province of Manitoba out of Rupert's Land. It was intituled *• An Act respecting the establishment of Provinces in the Dominion of Canada,'' u ! ii, i l! 'i 'I I .^! ' ''1 ' M^ ■ ! 1 ■ : 1 1 ^ 1: 654 R.N.A. ACT OP 1871 — ESTABLISHING I'HOVS. " Wliorojis doubts have l)ccn entertained rcspcctiiv^ the powers of the Parliament of Canada to estahlisli provinces in territories admitted, or which may h(>i'e. after be admitted, into the Dominion of Canada, and to provide for the representation of such provinces iu the said Parliament, and it is expedient to remove such doubts and to vest such poAvers in the said Pavlianicnt." Then by sec. 2 it was enacted that the Pavlianient of Canada might from time to time establisli new provinces ^ in any territories forming for the time being part of the Dominion of Canada, but not in- eluded in any province thereof, and may at tlic time of such establishment make provision for the constitu. tion and administration of any such provinc(; and for the l)assing of laws for the peace, order, and good govoiii- ment of such province, and for its representation in Parliament. By sec. 3 poAver Avas giA^en to the Parliament of Canada, Avitli the consent of the legislature of any province, to increase, diminish, or otherAvise alter the limits of such province ; and by sec. 1 poAver to niako provision for the administration, peace, order, and good government of any territory not for tlic timo included iu any proA^nce.^ Then sec. 5 aflfirmed tlio above cited Acts ; and sec. 6 enacted that, except as provided for in sec. 3, it Avas not to be \\\\\\m the competency of the Parliament of Canada to alter the provisions of the 33 Vict. (D.) c. 3. in so far as it related to the province of Manitoba, or of any other Act 1 The Dominion bus this year (1895) set apart the unorgan- ised and unnamed portion of the Dominion into provincial dis- tricts. The territory east of Hud- son Bay, having the province of Quebec on the south and the At- lantic on the east, is to be hereafter known as " Ungava." The terri- torj' embi-aced in the islands of the Arctic Sea is to be known as "Franklin." The Mackenirie river region is to be known as " Macken- zie," covering a spai-e of 538,000 square miles. The Pacific Coa«t territory, lying north of Britisli Columbia and west of Mackenzie, is to be " Yukon," covering 225,000 square miles. In addi- tion to this, Athabasca has been increased by 143,500 square miles, and Keewatin by 470,000 square miles. U,N.A. ACTS OP 1H75, IHHO, 1895.— POWERS OF CA. H.C. S56 hereaftci* establishing new provinces, subject always to the I'iglit of the 3Ianitoba Leg'islature to alter any law respecting the qualification of electors and niem- 1)018 of the Legislative Assembly and to make election laws. , ■• . . 1 See Kiel's fuso, Oct. 22, IHHo, lO App. Ciis. 675, ami itiih', p. 53H. B. N. A. ACT, 1875. 38 & 30 Vict. (1875) c. 38. was an Act to remove certain doubts with respect to the powers of the Parliament of Canada under sec. 18 of the 13. N. A. Act, 1867. After citing that section it proceeded : Wlioi'oas doubts haAc arisen with regard to the power of do tilling by an ^\.ct of the Parliament of Canada, in pui'siiance of the said section, the said privileges, powers, or immunities, and it is expedient to re- move such doubts. Sec. 1 repealed the 18tli section of the B. N. A. Act, 1867, and substituted for it anothei' enactment. See ante, p. 11. B. N. A. ACT, 1886. 19 & 50 Vict. (1886) c. 35. gave the Parliament of Conodd power to make provision for the represen- tation in the Senate and House of Commons of C'onada, or either of them, of any territory which for the time being forms part of the Dominion, but is not included in any province ; and sec. 2 declared any Act passed by the Parliament of Canada, whether before or after this Act, and notwithstanding anything in the B. N. A. Act, 1867, was to have effect! See the Act, jwst. Appendix A. In 1895 was passed the 59 Vict. (2nd sess.) c. 3., which confirmed an Act of the Dominion of Canada providing for the appointment of a Deputy Speaker to the Canadian House of Commons. Ill^ !' 1 H ^: 1 \ H 1 III ! n H III t ' 1 ' ' ' ; ■ l::.ii ? ■ 1 'i ■ i ; j 1 ■ ■ . '; I i i ' - ■:j 1 -1!^ 1 ' ;:i ■ -Hi ■ i ' I' \ i, '. n 1 1 ' ■ 1 \1 3 1 . ». , : ; '■■ i ■ ill Preamble. 1 '' ii'i' ■ :: J ::' ' , i ! 1 ^ ■ ! '■'■'( = |i:lNiiii ;^,^, H li 1 ;:j : fi56 14 GEO. 3. (. S3.-THK "Qt'EHKC ACT." [1774. APPENDIX A. IMPERIAL STATUTES AFFECTING CANADA. IJ; GEO. 3. (]774) c. 83. Of this Act, sees. 3, 1, 6, 7, and sec. 11 lioui the word " subject " to the end, and sees. 1*., 13, li, 15, 16, and 17, were repealed by 35 & 36 Vict. (1872) c. 63., S. L. R. Act. The 31 Geo. 3. (1791) c. 31. had repealed so much of this Act as related to tiie ap- pointment of a Council for Quebec and its powers. An Act for the more eflfectual provision for the Government of the Province of Quebec in North America. WHEREAS His Majesty, by his royal proclama- tion bearing date the 7th day of October, in the third year of his reign, thought fit to declare the pro- visions which had been made in respect to certain counties, territories, and islands in America, ceded to His Majesty by the definitive treaty of peace, con- eluded at Paris on the 10th day of February 1703 ; And whereas, by the arrangements made by the said royal proclamation, a very large extent of country, within which there were several colonies and settlements of the subjects of France, who claimed to remain therein under the faith of the said treaty, was left, without any provision being made for the administration of tbe civil government therein ; and certain parts of the territory of Canada, where sedentary fisheries had been established and carried on by the subjects of France, inhabitants of the said province of Canada, under v\ I 1771.] It (JKO. 3. 0. (^3- OLD TIOT^NDARIES. 557 r^mnts and conc«vssions from tho GovcmTncnt thereof, were annoxcd to tho Gov(M'nment of Newfoundland, and tlun'(d)y 8ul)joct to rogulatious inconsistont with tlip Tiaturo of such fisheries : May it theroforo please T''" '♦'"i'o""''. ' , * , * iNiiinax, Hiiil Your Most Excellent Majesty that it may be enacted ; countrieg in and be it enacted by the King's Most Excellent Ma- belongin^t""* jcsty, by and with the advice and consent of the Lords ,i'„'"^ied"?tho Spiritual and Temporal, and Commons, in this present K"'J^^* °' Parliament assembled, and by the authority of tho same, That all the t(M'ritories, islands, and countries in North America, belonj^inj? to the Crown of Great Britain, bounded on the south by a line from the Bay of Clialcurs, along the high lands which divide tho rivei's that empty themselves into the lliver Saint Lawrence from those which fall into the sea, to a point in 16 degrees of northern latitude, on the eastern bank of the River Connecticut, keeping the same lati- tude directly west, through the Lake Champlain, until, in the same latitude, it meets the lliver Saint Law- rence; from thence up the eastern bank of the said liver to the Lake Ontario; thence through the Lake Ontario, and the river commonly called Niagara ; and thence along bv the eastern and south-eastern bank of Lake Erie, following the said bank, until the same shall be intersected by the northern boundary, granted by the charter of the province of Pensylvania, in case the same shall be so intersected; and from thence along the said northern and western boundaries of the said province, until the said western boundary strike the Ohio: But in case the said bank of the said lake shall not be found to be so intersected, then following the said bank until it shall arrive at that point of the said bank which shall be nearest to the north-western angle of the said province of Fensylvania, and thence by a right line to the said north-western angle of the said province ; and thence along the western boundary of the said province, until it strike the River Ohio; and along the bank of the said river, westward, to the banks of the Mississippi, and northward to the Ui TTT ; : (H vA\ I T Mitji!, t Not to iiffi'Ot till" lioumliivios of any other colony. 55S II ftEO.S.p.sa.— CATIIOTJrSit r«OTKSTA\Ts ri77t southovn boundavy of tho tovritory Sfvantod to tuo ^Movc'hants Adventurers of Eiighttui, trading to llml. son's Hay ; and also all such territories, islands, and counties, which have, since the 10th Eehruary 17(i3, bcoii made part of the (lovernnient of Netrfoinnlldnd, bo and they are hereby, durinti: His ]\raj(>sty's ])l('asmv annex(Ml to, and made i)art and parcel of, th(> pioviiu't" ol' Qiichcc, as created and established by the said royal proclamation ol' the 7th October ITtJ.'J. 2. Provided always, That nothing* herein eoiitaincd, relative to the boundary of the provinct> ol' Quebec, shall in anywise alVect the boundaries ol' any otliov colonv. 3. Provided always, and be it (Miacted, That notl iiiiii Not to miiki> liV'iits t'orin.ii.v in this Act shall extend, or be construed to exttMul, granto.. ^^ mako void or to vary or alter any right, title, or possession, derived under any grant, convtnaiuc, ov otherwise howsoever, of or to any lands witliiii ilic said province, or the provinces thereto adjoining'; l)iit that the same shall remain an?) be in force, and li.ive etfect as if this ..Vet had never been mad(\ Fomor pio- ^^ "And wlicrcas the i)rovisions, madi» bv tlie said 9 visions tuado . . ' _ • 'M lor tiu-iudvi 1100 proclamation, in respect to the civil govcM'mnont ol' voi.i iitt.r ' the said i)rovince of QiicbfO, and the ])owors and May I, i,,.>. jmtiiorities given to the Governor and other civil olllcvrs of tho said province, by the grants and conuuissioib issued in consecpunice thereof. hav«^ been I'omid, \\\)m experience, to be inapi)licable to the state and circuin- stauces of the said province, tlie iuliabitants whtnvot unounted, at the conipiest, to al)ove 05,000 persons professing the religion of the Church of Homo, ami enjoying an established form of constitution and systoin of laws, by which their persons and property had Ihcii l)rotected, governed, and ordennl, for a long series ol years,, from tho first establishnuMit of tlie said I'm- vincc of Camnhi'' ; be it therefore further enacted by the authority aforesaid. That ihe said proclamation, f -I 1774.1 14 GEO. 3. c. S.l — THE PROTESTANTS. 559 so far as tho same relates to the said province ol" Quebec, and the commission nnder the authority wluMvol" the Government of the said province is at presotit administered, and all and every the ordinance and ordinances made by the (U)vernor and Council of Quebec for the time beiui?, relative to the civil i;-overn- moiit and administration of justice in the said pro- vinci', and all commissions to judi>:es and other otficers tlioi'oof, 1)0, and the sanu' an* hereby, rinokt'd. nmuilled, and made void, from and aftcn* the 1st ^fay 1775. 5 " And, for the more perfect si>curitv and ease of i"'";'''""''""' "• ' ' , . ' . , . Qiii'lxv limy tbo minds of the inhabitants of the said ]>roviiice,' it piotvss tii.« IS luTt'by declared, that Ills Jlajesty s subjects, pro- sui.j.itt.. tiu- iVssiiii^ the religion of the Ch'irch of Home of and in m'"yiri!y'.u.t tlu> said province of Quebec, mav have, hold, and "' | 'J'"^y '■^• 1 1/ ' , ■ ' 11^,1 dm clergy iMiiov, tlie free exercise of the rtdii>'ion of the Church •".i".v •'"'■• 'i^- ,' ' T . , ,1 ,^- , ' 111 ''iisti'meil iliiw. Ill Rome, subject to the King's su])remacy, declared :iiul established bv an Act, made in the first vear of dio ivigii of Queen Elizabeth, over all tlu> dominions and oomitries, Avhich then did or ther(>after should be- long;, to the Imperial Cnnvn of this ri>alm ; and that tlio clergy of the said church may hold, ri>ceive, and oujoy, their accustomed dues and rights, with respect to such persons only as shall profess the said religion. 6. Provided nevertheless. That it shall be lawful for iV"visioii may Ills .Majesty, lus heirs or successors, to make such M:ij.My tmiiu- ■ „....; : 2. p ii i. !■ 1 1 • 1 i 11 Mipimrl of tlio proMsnm out oi tiie rest ol the said accustomed dues i>,.„t,.stMnt and rights, fov the encouragement of the Trotestant '■'''''^'•^' ivlii^'ion, and \'oy the maintenance and support of a Protestant clergy within tlH» said province, as h(» or diey sjiajl, from time to time, think necessary and ' Mpedient . No lioi'aoll pro- 7. Provided alwavs, and be it enacted. That no per- f.-*"'.'*- "";. ">on, protessiiig the religion of the Church of Rome, «'"" "''liR''' t" .nw" ... •!■ • .1 •\ . , 11 1 1 1. 1 , tiiki- the onfliot luu ies\(lmg in the said province, shall be obliged to i kiiz.. but lu take the oath requiivd by the said statute passed in [utnuu.?;^'!'! '1h> lim year of the reign* of Queen Klizabeth, or any l^';;,/;""*"'*-' ' ■' r 660 14 GEO. 3. c. 83.— LAWS OF CANADA. [1774. other oath suhstitutecl by any other Act in the place tliereof ; but that every such person who, by the said statute, is required to take the oath therein meutioued shall be obliged, and is hereby required, to take and subscribe the following oath before the Governor, or such other person in such court of record as His Majesty shall appoint, who are hereby authorized to administer the same, videlicet : — " I A.B. do sincerely promise and swear, that I will be faithful and bear true allegiance to His Majesty King George, and him will defend to the utmost of my power, against all traitorous conspiracies, and attempts whatsoever, which shall be made against his person, crown, and dignity, and I will do my utmost endeavour to disclose and make known to His Majesty, his heirs and successors, all treasons and traitorous conspiracies, and attempts, which I shall know to be against him, or any of them; and all this I do swear without any equivoca- tion, mental evasion, or secret reservation, and re- nouncing all pardons and dispensations from any power or person whomsoever to the contrary. So help nic f ^"^"uie oath Grod." And cvcry such person, who shall neglect or to be subject to ref usc to take the said oath before-mentioned, shall Act 1 Eiiz. incur and be liable to the same penalties, forfeitures, disabilities and incapacities, as he would have incurred and been liable to for neglecting or refusing to take the oath required by the said statute passed in the first year of the reign of Queen Elizabeth. 8. And be it further enacted by the authority aforesaid, That all His Majesty's Canadian subjects within the province of Quebec, the religious orders and communities only excepted, may also hold and enjoy their property and possessions, together with all customs and usages relative thereto, and all other their civil rights, in as large, ample, and beneficial manner, as if the said proclamation, commissions, ordinances, and other Acts and instruments had not been made, and as may consist with their allegiance His Mnjcsty's Canadian sub- jects (reiifeious orders ex- cepted) may hold nil their possessions, &c., and in matters of con- troversy resort may be iiad to the laws of Canada for the decision. 177J.1 U OEO. 3. c. S3-rROPERTY & CIVIL RIGHTS, ^fil to His Majosty, and subjection to tlio CroAvn and Par- liainont of Great Brifain; and that in all matters of controversy relative to pro])orty and civil rights,^ resort shall be had to the laws of Canada as the rule for the decision of the same : and all cause? Avhicli slmll hereafter be instituted in any of the courts of justice to he appointed Avithin and for the said pro- vince hy His Majesty, bis heirs and successors, shall, with respect to such property and rights, be deter- mined agreeably to the said laws and customs of GiiMilo, until they shall be varied or altered by any ordinance that shall, from time to time, be passed in tlie said province by the Governor, Lieutenant-Governor, or Commander-in-Chief for the time being, by and with the advice and consent of the Legislative^ Council (tf the same, to l)e api)ointed in manner herein-after montioned.- ' Hvcante,lA. N. A. Act, st'c. f)2, where nil the old French edits con- ^uli-<0('. l.'i. c'prning Cnnnda, nnd which were • See Donegaui v. IJoiiegani, in published in Quebec in 1803, arc I' ('. 2 Feb, 183.5, 3 Knapp 63, i-eferred to. 9. Provided ahvavs, That nothing in this Act con- Not to ixtwia • ^ tolniulsgniiitcil turned snail extend, or be; construed to extend, to any i.y His Miijoty kinds which have been granted by His ^Majesty, or r.KMg''.' ' ' shall hereafter be granted by His Majesty, bis heirs nil successors, to be holden in free and common socage. 10. Provided also. That it shall and mav be lawful 'j^?^^,::', to and for everv person that is owner of any lands, iiii'Matr tin; ;,'oo(ls ov credits, in the said province, and that has a \.v-if'xi- light to alienate the said lands, goods or credits, in l,''tiln"inws'i!i'" his or her lifetime, by deed of sale, gift, or otherwise, '■"""'" to devise ov be(|iieath the same at his or her death, hy liis or 1i(>r last will and testament ; any law, nsnge. or custom heretofore or now pr(>vailing in the i)ro- vince to the contrary hereof in anywis(> notwith- standing; such will being executed either according to S2340. \ X ' ^j HI r -: i; I :il 5G2 It GEO. 3. c. 83 —CRIMINAL LAWS. [1771. the laws of Canada, or according to the forms pre. scribed by the laws of England. I liir ISsli li I ; :ii) ' ' Ms I:! \m '" ■J >\ i ) o/K,;;ill„dTo 11. '^^nd whereas the certainty and lenity of the be contitnud in criminal law of England, and the benefits and advaii. tages resulting from the use of it, have boon sensil)ly felt by the inhabitants, from an experience of nioie than nine years, during which it has been uniformly administered ' ; be it therefore further enacted l)v tlip authority aforesaid. That the same shall continue to bo administered, and shall be observed as law in tlie province of Quebec, as well in the descri[)tion and quality of the offence as in the method of prosecution and trial, and the punishments and forfeiture's tlioreljv inflicted, to the exclusion of every other rule of criiuiiial law, or mode of proceeding thereon, which did or might prevail in the said province before the yoar of our Lord 1764, anything in this Act to the coutrarv thereof in any respect notwithstanding ; sul)joct uovor- theless to such alterations and amendments as the GoA'ornor, Lieutenant-Governor, or Commaudor-in- Chief for the time being, by and with the advice and consent of the Legislative Council of the said |)vovinc(', hereafter to be appointed, shall, from tinio to [\m\ cause to bo made therein, in manner hoiriii-aftcr directed. His Majisty J2. * And wliorcas it mav be necessary to ordain may iipiioint a _ • • CouiKii for the niauy regulations for the future welfare and good province, '' government of the province of Quebec, the occasions of which cannot now be foreseen, nor, without mncli delay and inconvenience, be provided fov, without in- trusting that authority, for a certain time aud under proper restrictions, to persons resident there ; And Avhereas it is at present inexpedient to call an Assem- bly ' ; be it therefore enacted by the authority aforesaid. That it shall and may be lawful for His ]\[ajesty, !ii>' heirs and successors, by warrant under his or their signet or sign manual, and with the advice of the 1774] 14 GEO. 3. o. 8.'?.—" WELFARE & GOOD GOVT." 563 Piivy Council, to constitute and appoint a Council for tho affairs of the province of Quebec, to consist of sucli persons resident there, not exceeding twenty-three nor less than seventeen, as His Majesty, his heirs and successors, shall he pleased to appoint ; and upon the (loath, removal, or ahsence of any of the memhers of ^■'"'''> Council ' .... . lUiiy make or- tho said Council, m like manner to constitute and dinnmcs with , , , , ,, onnsciit of the appoint such and so many other person or persons as Governor, shall 1)0 necessary to supply the vacancy or vacancies ; which Council so appointed and nominated, or the major part thereof, shall have power and authority to make ordinances for the peace, welfare, and good j^ovcrinnent ^ of the said province, with the consent of His Majesty's Governor, or, in his ahsence, of the Lieutenant-Governor or Commander-in-Chief, for the S 1 I M 1 tune Ixnng. Ill) 1 Sec B. iSr. A. Act, 1867, sec. 91, ante, p. 43. 13. Provided always, That nothing in this Act con- The Council trtiued shall extend or authorize or empower the said powered to i^y Legislative Council to lay any taxes or duties within r'Sor'imii.i- the said province, such rates and taxes only excepted ^"^^ txcei>t.d. as tlie inhahitants of any town or district within the said province may he authorized hy the said Council to assess, levy, and apply within the said town or district, for the purpose of making roads, erecting and ropaiiinflf puhlic huildings, or for any other purpose respecting the local convenience and economy of such town or district. '(! 14. Provided also, and he it enacted hy the authority ordinani'.Mna.v al'oresaid, That every ordinance so to he made, shall, His Maj.st.v within six months, he transmitted by the Governor, or, JitiSir'^'^"" ill his ahsence, hy the Lieutenant-Governor or Com- mander-in-Chief, for the time heing, and laid before His Majesty for his royal approbation ; and if His ^lajesty shall think fit to disallow thereof, the same shall cease and he void from the time that His N N 2 II 11 56 1 n GEO. 3. 0. 83.— TN'STTTrTTOX OF rOURTS. [-1774 Majesty's Order in Council thereupon shall ho pro- mulgated at Quebec. ro- Ordinances ^5^ Provided also, That no ordinance touclnnn- touching rt'li- . ,3 gion sot to bo ligiou, or by which any punishment may he iiiflictod ill foivo without j_ J.^ n 1 • • j. x- xi , His Majisty's greater than tine and imprisonment tor throe montli.s approbation. g|jj^|i ^^^ ^^ .^^^ ^-^j.^g q^. pg-ggj.^ yj^^jj ^j^^ ^^^^^^ ^j^.^jj have received His Majesty's approhation. in^ority. When ordin- \Q^ Provided also, That no ordinance shall ho Dassed ances are to bo • n i m passed by u at any meeting of the Council where less than a majority of the whole Council is present, or at any time except between the 1st day of January and 1st da\ .i*" ^'"ay, unless upon some urgent occasion, in whicj .■ .. '"ry member thereof resident at Qiiehcc, or withlit iiLi^' miles thereof, shall be personally sum- moned b^'^ the Governor, or, in his absence, hy the Lieiitenai't-G "ern ^r Commander-in-Chief, for the time being, to attcid t]ie same. Nothing to liinder His Majesty to con- stitute courts of criminal, civil, and eccle- siastical juris- diction. All Acts for- merly made are hereby enforced within the province. 17. And be it further enacted by the authority aforesaid, That nothing herein contained shall extend. or b(^ construed to extend, to prevent or hiiidov His Majesty, his heirs and successors, by his or their lotlovs patent under the great seal of Great Britain, from erecting, constituting, and appointing such cmivts of criminal, civil, and ecclesiastical jurisdiction within and for the said province of Quebec, and appnintiiiir, from time to time, the judges and officers thereof, as His Majesty, his heirs ant' successors, shall think necessary and proper for the circumstances of the said province. 18. Provided ahvays, and it is hereby enacted, That nothing in this Act contained shall extend, ov he con- strued to extend, to repeal or make void, Avitliin tho said province of Quebec, any Act or Acts of the Parliament of Gi'eat Britain heretofore made, for prohibiting, restraining, or regulating the trade ni' commerce of His Majesty's colonies and plantations 1774.J 14 GEO. 3. e. 88.— PUBLIC-HOUSK XVT. JO.) in America : but that all and eveiy the said Acts, and also all Acts of Parliament heretofore made concerning 01- respecting the said colonies and plantations, shall Ije, and are hereby declared to be, in force within the said province of Quebec and every part thereof. 14 GEO. 3. (1774) c. 88. Of this Act the whole except sec. o was repealed by S. L. 11. Act, 1872, 35 & 36 Vict. c. 63. ; and see l'& 2 Will, k c. 23. This was an Act to establish a fund towards further defraying the charges of administration of justice and support of the civil government within the province of Quebec in America. The preamble and section 1 are given anie, \). 220. Sec. 2 enacted that the rates and duties charged by the Act were declared to be sterling money of Great Britain, and were to l)e paid to the amount of the value such nominal sums bear in Great Britain^ and that such moneys might be received according to the proportion and value of 5s. Qd. the ounce in silver. The section then dealt with how the duties are to be levied ; to whom paid ; and how to be applied. Sec. 3 con- tained regulations as to the route goods chargeable with duty should be brought into the province. 8ec. 1 enacted that the penalties and forfeitures inflicted might he sued for in any Court of Admiralty or Vice- Admiralty having jurisdiction within the said province. Sec. 5. " And be it further enacted by the authority Any pirson e • mi 1 Pill keeijing ii house atorosaul, That there shall from and after the 5th day of public enter- of April 1775, be raised, levied, collected, and paid, £i"i™rfor°r^ unto His Majesty's Receiver-General of the said pro- ''^'^^"'"'• vince, for the use of His Majesty, his heirs and suc- cessors, a duty of one pound sixteen shillings, sterling money of Great Britain, for every license that shall Ix' gmnted by the Governor, Lieutenant-Governor, or Coiuuuuider-in-Chief of the said province to any person or persons for keeping a house or any other place of t> 566 31 GEO. 3. c. !!1.— CANADA'S CHARTEK. [17fll. "!i Hi' * ■' n^ I'reiiiiiblc. UGio. 3. rec'itud. 83. ])ul)lic ont(n'tainmcnt, or for the retailing wino, l)mn(lv rum, or any other spirituous hquors, within the said provhice ; and any person keeping any sueli liouse ov phice of entertainment, or retailint^- any such hijuovs, Avithout a license, shall forfeit and pay the sum of £10 for every such offence, upon conviction thoreor; one moiety to such person as shall inform or prosocute for the same, and the other moiety shall he i)ai(l into the hands of the lleceiver-General of the province lor the use of His Majesty." Sec. 6 enacted that nothing contained in tlio Act A\as to make Aoid any part of the territorial or casual revenues, iinco, rents, or profits reserved to the rrcncli King and surrendered at the conquest to the King of Great Britain. Sec. 7 contained an indemnity against anything done in pursuance of the Act. 31 GEO. 3. (1701) c. 31. The Avhole Act Avas repealed except sees. 38, 30, 10, 43, 11, and 15, hy S. L. E. Act, 1872, 35 & 30 Vict, c. 63. ; and see 3 & 4 Vict. c. 35. s. 2. By sec. 11 of 3 & 1 Vict. c. 78., so much of this Act as relates to any reserA'ation of land hereafter to he made in Upper or Lower Canada for the support and maintenance of a Protestant clergy Avas repealed. This Act has Ijceu called the Constitutional Charter of the Canadus. It is giA'en in full : — An A(!t to repeal certaia parts of an Act, passed in the fourteenth year of His Majesty's reign, intituled, " An Act for making more eftectual provision for the Government of the Province of Quebec in North America," and to make fur- ther provision for the Government of the said Province. WHEllEAS an Act Avas passed in the fourteenth year of the reign of His present Majesty, intituled, ".Vu Act for making more effectual provision for the Goveiu- 1791. :n GEO. 3. f. 31.— PEACE & GOOD GOV I' 567 nu'nt of the Province of Quebec in North America" ; Aiid whereas the said ^Vct is in many resjiects inapplicable to the present condition and circumstances of the said province ; ^Vnd whereas it is expedient and necessary that further provision should now be made for the fjood government and prosperity thereof ' : May it there- foie please Your most Excellent Majesty that it may be enacted; and be it enacted by the King's most Excellent Majesty, by and Avith the advice and consent of tlie Lords Spiritual and Temporal, and Comnions, in this present Parliament assembled, and by the authority of tlie same, That so much of the said Act as in any -so much of re- 1 • 1 J I' /-I •^ p cited Act US lUiinner relates to the ai)i)omtment oi a Council lor relates to the the affairs of the said province of Quebec, or to the a^'cwdi'for" power i!;iAen by the said Act to the said Council, or ^",^|'j.^' ^^1'" to the major part of them, to make ordinances for pcaied. the peace, A\elfare, and g'ood government of the said province, with the consent of His Majesty's Governor, Lieutenant-Governor, or Commander-in-Chief for the time lieing', shall be, and the same is hereby repealed. 2. 'And Avhereas His Majesty has been pleased to si2:mfy, l)y his message to both Houses of Parliament, his royal intention to divide his province of Quebec into hvo separate provinces, to be called The Province i)f Upper Cakcida and The Province of Lower Canada^: 1)0 it enacted by the authority aforesaid, That there ^^■itllin each of 1111 •!• ii'i ' ^'^ • i'l ^'^^ intended shall be withm each oi the said provinces respectively a provinces n Legislative Council, and an Assembly, to be severally council imd As- composed and constituted in the manner heremafter f.'™',''i[,,tcd,V described ; and that in each of the said provinces re- Mhosi- advice ■*• His Majesty spoctivoly His Majesty, his heirs or successors, shall may make laws liave poA\er, during the continuance of this Act, by and ,n'ent ofTC" with the advice and consent of the Legislative Council p'' iind Assembly of such provinces respectively, to make laws for the peace, welfare, and good government tlioi'eof, such laws not being repugnant to this Act; aiul that all such laws, being passed by the Legislative Council and Assembly of either of the said provinces jvince. ! i lili ;' 1 5G8 ;ii (iKo. ;i.o.;n.— LK(JISLATIVK cou^'CIL. [17!/1. m ' vv»[)vct\yo\y , and assented to by llis Majesty, his lieiis or successors, or assent (kI to in His Majesty's naiiio, by such i)orson as His Majesty, liis lieirs or successors, shall from time to time appoint to be the Governor, or Lieutenant-Governor, of sucli province, or hy such person as His Majesty, his heirs or successors, shall tVom time to time appoint to administer the j^overnuioiit ■within tlie same, shall he, and the same are lierchv de dared to he, hy virtue of and under the autlioritv ol this Act, \ah"(l and hindinj;^ to all intents and purposes whatever, Avithi)i the province in Avhich the same shall haA'c heen so passed. II HM!!^ ills Majf.st.y 3. And he it further enacted hv the antlioritv ai'oiv. may authoiiit . pi » * . . ' the Governor, saul, Hiat Tov the purposc of constitutini^; such Li'i,qs- or Lieutenant- , . ^^ .•■ ,. . -, . i c i.i ' • i (Jovernor, of uitive Louncil as atorcsaid m each or the said provmcis triummoir' i'''^'P<'f'tivoly. it shall and niay l)e laAvful for His Majesty, members to tho Jij^ Jieirs or succcssors, hv an instrument under his or Legislfttivc _ ^ ■ _ Council. their siy-n manual, to authorize and direct the Governor or Lieutenant-Governoi", or person administerinn' the govern m(Mit in each of the said ])rovinces respectively, Avithin the time herein-after mentioned, in His Majesty's name, and hv an instrument under the oreat seal of such province^ to sinnmon to the said Legislative Coun- cil, to 1)0 estahlished in each of the said pi'ovinccs lo- spectively, a sufficient number of discreet and proper persons, heing not fewtn* than seven to the Legislative C-.iuncil for the province of Upper Canada, and not f(Mver than fifteen to the LegislatiA'e Council for the province of JjOirfr Canada ; and that it shall also j)e lawful for His 3[ajesty, his heirs or successors from time to time, hy an instrument under his or their si";!! manual, to authorize and direct the Governor or Lieu- tenant-Governor, or person administering tht; govern- ment in each of the said provinces respectively, tu summon to the Legislative Council of such province, in like manner, such other person or j)ersons as His Ma- jesty, his heirs or successors, shall think fit ; and that every person who shall he so summoned to the Legis- .M 1791.] M GKO. 3. c. ;jl.— JIKHKDirAia' SKATS, 569 liitivc Council of citlici' i)f the said provinces respectively, shall tlun'cl)^ become a member of such Le<^'islative Council to which he shall have l)eeii so j'vmmoiied. 4 Pi'()\ ided alwavs, and be it enacted by the authoritv >"" person * 1 11 1 ' 1 I ■*! "nilui" 21 }-cnrs afon'said, That no person shall l)0 snmmoned to the said otMgo, &o. to Lo;?islative Council, m either ot tlie said provinces, who shall not lie of the full age of twenty-one years, and a iiatuml-born subject of ilis ^lajesty, or a subject of His Majesty naturalized by Act of the BrUish Parliament, or a subject of His Majesty, having become such by the conquest and cession of the province of Canada. 5. And be it further enacted bv tlie author;; v afore- Memiitis to '.'.,. hoi'l "itir scats said, That e\ cry meml>er of each of the said Legislative for litv. Councils shall hold his seat therein for the term of his lii'c, hut subject nevertheless to the provisions herein- at'tiT coutained for vacjitirig the same, in the cases liereuia ftcr specitied . 6. And be it further enacted hy the authority afore- Hi^^-^I'l.ie!^t.v said, That AvluMiever Hw Majesty, his heirs or successors, lanaituiytitks sliall think proper to confer upon any subject of the right'of'bLin'g Cvown of Gmtt livllaln, by letters patent under the tX'Lrgisi!.-" 1,'iTat seal of either of the said provinces, any hereditary tivc Council, title of honour, rank, or dignity of such province, de- scendible according to any course of descent limited in such letters patent, it shall and may be lawful for His Majesty, his heirs or successors, to annex thereto, hy the said letters patent, if His Majesty, his heirs or suc- c(^soi's, shall so think tit, an hereditary right of being sninmoned to the Legislative Council of such province, descendible according to the course of descent so limited with respect to such title, rank, or dignity ; and that every person on whom such right shall he so conferred, or to whom such right sliall severally so descend, shall thereupon be entitled to demand from the Governor, Lieutenant-Governor, or person administering the go- veniment of such province, his writ of summons to such Legislative Council, at any time after he shall iiiii''>r ,1 ' ', I i in 11^ 1 r)7o .{1 OEO. .S. I. ;n.— VACANCIKS IN COVNflL. [1701. m ■I". ■ ■ iji'i Im Such (Ifsptiiil- iblo right fur- fi'itod, unci seats in Coun- cil vacated in certain caBeti. have attained tlic acje ol" tAvcnty-one years, siil)i(.(.t nevertheless to the i)rovisioiis herein-after eontaiiicd. 7. Provided always, and he it further enaetcd hv the authority aforesaid, That when and so often as any person to whom such hereditary riylit shall have dc scended shall, without the permission of His Alajcstv, his heirs or successors, sii^nitied to the Legislative Council of the 2)i*ovince hy the Governor, Lieutenant- Governor, or person administering the government tiiere, have heen ahsent from the said i)rovince for the space of four years continually, at any time hetween the date (it his succeeding to such right aiul the time of his apply, ing foi such -writ of sunnnons, if he shall have hecn ol the age of twenty-one years or upwards at the time ol h s so succeeding, or at any time hetween the date of attamnig the said ay-e and the time of hh s so his applying, if he shall not have heen of the said ai;v at the time of liis so succeeding; and also when and so often as any such person shall at any time, hei'oiv his applying for such writ of summons, have taken any oath of allegiance or ohedience to any foreign prince or power, in every such case such person shall not hr entitled to receive any writ of summons to the Logis- iative Council hy virtue of such hereditary right, iniless His Majesty, his heirs or successors, shall at any time think fit, hy instrument under his or their sign manual, to direct that such person shall he summoned to the said Council; and the Governor, Lieutenant-Govcrnoi', or person administering the government in the said provinces respectively, is lierehy authorized and required, previous to granting such Avrit of summons to any person so applying for the same, to interrogate such person upon oath touching the said several particulais, before such Executive Council as shall have heen ap- pointed by His Majesty, his heirs or successors, within such province, for the affairs thereof. 8. Provided also, and be it further enacted hy the au- thority aforesaid, That if any member of the Legislative W] 1701. ,11 GKO. .{. f. :U.— ALIEN LEOISLATOUS. 571 Councils of cltlu'i' of tlio siiid provinces respect ivel;' shall Iciive sucii province, and shall resich; out of the same for the space of four ,vears continually, without the niM'iiiis'iion of His Majesty, his lieirs or successors, sig- iiiticd to such liCgislative Council by tlie Governor or LiiHiteimiit-Governor, or person adininisleriny His Ma- jost ' '•'overnnient there, or for the space of two years LDi 'ly» without the like permission, or the per- mission of the Governor, Lieutenant-Governor, or person adiuinistcrini'' the government of such province, signified to Mich Legislntive Council in the manner afore»;i:'d; 111' if any such memher shall take any oath of aPeguu.ce or obedience to any foreiy,'n prince or power; his scat iu such Council shall ther(>by become vacant. 9. Provided also, and be it further enacted by the imthority aforesaid, Thai in every case Avhere a Avrit of summons to such Legislative Council shall have been lawfully withheld from any person to whom such herc- dita ight as aforesaid shall ha>'c descended, by reason of hsence from the province as aforesaid, or of his liavnii;; i.iken an oath of allegiance or obedience to any toroiu:n prince or power, and also in every case Avhere the scat in such Council of any member thereof, having such hereditary right as aforesaid, shall have been vacated l)y reason of any of the causes herein-before spocitied, such hereditary right shall remain suspended during the life of such person, unless His Majesty, his iioii's or successors, shall afterwards think fit to direct that ho be summoned to such Council ; but that on the death of such person such right, subject to the provi- sions herein contained, shall descend to the person who shall next l)e entitled thereto, according to the course of descent limited in the letters patent by which the same shall have been originally conferred. 10. Provided also, and be it further enacted by the luithority aforesaid. That if any member of either of the said Legislative Councils shall be attainted for treason lIii'Lilitiiry riplit.s iuiJ H'iits no foi'fiiti'd ui" viii'iitid to ru- iiiiiiii sti^i'iiuli'il duriii;,' t! livi's of tln' |iiii'ti('», but oil tlicir deaths to go to tlKqK'ivonsiioxt iiititludtlicrt'to, Seats in Coun- cil forfeited, and hereditary rights extin- guishnd for tr^asou. )i ;!■ '! . 1^ i i i i ifilll'M 1 ■ 572 31 GEO. 3. f. 31.— APPEAL TO ENG. PARL. [1791. Questions re- specting the right to bo summoned to Council, &e. to be lU'ter- niined as here- in mentioned. The Governor of the province inftj' appoint find remove the Speaker. His Miijcsty may authorize the Governor to call together the Assembly, in any conrt of law within any of His Majesty's domi- nions, his seat in such Council shall therehy become vacant, and any such horeditavy rii^lit as aforesaid then vested in such person, or to he derived to any other persons throuj^li him, shall he utterly forfeited and extinguished. 11. Provided also, and he it further enacted hv the authority aforesaid. That whenever any question shall arise respecthig the right of any person to he summoned to either of the said Legislative Councils respectiveh-, or respecting the vacancy of the seat in such Legislative Council of any person having heen siunmoned thereto, every such question shall, hy the Governor or Lieu- tenant-Governor of the province, or hy the ])ersoii ad- ministering the government there, l)e referred to siieh Legislative Council, to l)e hy the said Council heard and determined ; and that it shall and may be lawful either for the person desiring such writ of summons, or re- specting whose seat such question shall have arisen, or for His Majesty's Attorney-General of such province in Uis Majesty's name, to appeal from the determinatiou of the said Council, in such case, to Uis Majesty iu hb Parliament of Great Britain; and that the judi,nueut thereon of His Majesty in his said Parliament shall be final and conclusive to all intents and purposes what- ever. 12. xind he it further enacted hy the authority al'oie- said, That the Governor or Lieutenant-Governoi' of tlie said provinces respectively, or the person administering His Majesty's government therein respectively, shall have power and authority from time to time, l)y an instrument under the great seal of such province, tn constitute, appoint, and remove the Speakers of tlie Legislative Councils of such provinces respectively. 13. And be it further enacted by the authority afore- said, That, for the purpose of constituting such Assem- bly as aforesaid, in each of the said provinces rospec- ill ii 1-01] 31 GEO. 3. c. 31.— SUMMONING .\SSEMBLY. ')1^ tivolv, it shall and may ho lawful for His Majesty, his heirs or successors, by an instrument under his or their sio^n manual, to authorize and direct the Governor or Lieutenant-Governor, or person administering the go- vernment in each of tin; said provinces respectively, vitliin the time herein-after mentioned, and thereafter from time to time, as occasion shall require, in His Majesty's name, and hy an instrumcmt nnder the great seal of such province, to summon and call together an Ars(Mul)ly in and for such province. 14. And he it further enacted hv the authoritv afore- nnd, forthe said, Tliat, for the purpose ot electing the memhers of Hectinp the sucli Assemhlies res])ectively, it shall and may he lawful "mu' a 'imMhi- for His :N[ajesty, his heirs or successors, hy an instru- [^f j'-'o'IS"^ ment under his or their si<;'n manual, to authorize the '"''^ '''^t'''"'*> ^ tec. Governor or Lieutei.aut-Governor of each of the said jii'ovinces respectively, or the person administei'ing the i;overnment thereiu, Avithin the time herein -after men- tioned, to issue a proclauiation dividing such province into districts, or counties, ov circles, and towns ov to\vnshii)s, and ai)i)ointiug the limits thereof, and de- claruiiif and appointing the numher of representatives to l)e chosen hy each of such districts, or counties, or circles, and towns or townships resj)ectively ; and that it shall also he lawful for His ^lajesty, his heirs or successors, to authorize such Governor or Lieutenant- Governor, or person administering the government, from time to tiiue to nominate and api)oiiit p^-oper persons to execute the office of returuing officer iu each of the said districts, or counties, or circles, and towns or townships respectively ; and that such division of the said ])rovinces into districts, or countii's, or circles, and towns or townships, and such (h'daration aud ai)])oint- ment of the numher of repres(Mitatives to he chosen hy each of the said districts, or counties, or cireh^s, and toMus or townships respectively, aud also such nomi- nation aud appointment of rc^turning officers in the . same, shall he valid and effectual to all the purposes i ■ ■1^ P """ 1 aMBWi ' ' ^ ^ ^y f: ' 1- ' [IH H ii : li ' 1 11 ' i ' B ! 1 1 9h I'lwl^l IN H ' ' ' i n ' i; f H |;M 1:; : r I 1 ^ n W ' ! i 1 ,' : ; ' H P M ' ' ' ■ : > H 1 1 : Power of the H 1 ; : i Goveriiur to H { f ( : 1 i ;! \ ajuioiiit retiiru- 1 j iiif? offieei'9, to 1 1 f ! i ; , j eoiitinue two 1 ; i; ; i ' i 1 years from the commeneemcnt 1 f 1 i : M j of this Aet. 1 ; ■ ! : " . * ; !<^ " T i 1 •: : "- ■ ' '■■ : . \ . ■ ■ •! ; ■ \ ■ : : 1 ■ >■ ■ ■ ■ .} , i\i\ : H . r 1 i • ■ i i |I 1 ;■ : ' ':■ . 1 II '' ■ >.• ; ! : u) :\J k ^ ' : R K ^ 1 ' ■ ■ ■ ■ 1 ^n^ , 1 IH' ;■;;",: J i 1 ^jijH! ^ ^ If ., 1 1 ; ' (i j No person ob- il 1, i i , ' ! H 1 liged to serve i^ ' j : i 1 ■ '"' '■^'*"*'""'P ji j H ' H officer mure li' 1 Hj 1' less otherwix' K^ P 1 ; ' : 1 B provided liy iin K : : ! : j i ' ' 1 1 Act of the ' !ij; . 1 '\ 1 3 : 1 ; province. 1 j i A i ■ ' J i| ) : 1 r [1; , ' 1 Number oi rill meral)ers in ; , |l| j ! ' each province. pi ■ ! ii a- i|i 1 1 > I ! nli Wi Jt In i\: mm 1 Bfcif ' Rc;^hitions for Wat ' ^El i ' is.' uing writ8 Wm ■ , \, ^^■1 i i 1 ^ ^'^ *'^" election ;: I^H 1 ' U 1 ' of mcmhcrs to i nP* ' r 1 : i^etvo in the wM. Bnl Im j^ ■ ! K Assemblies. ^m i i auU i "^ ■H IJIhbij ' ^ 1 ' H ^bH i ' 1 BI^PBBff 1 IWi 571 31 GEO. 3. o. 31.— RETURNING OFFICERS. [1791. of tliis Act, unless it shall at any time be otherwise provided hy any Act of the Legislative Council and Assembly of the province, assented to by Ilis Majesty his heirs or successors. 15. Provided nevertheless, and be it further enacted by the authority aforesaid. That the provision horoiii. before contained, for empowering the Governor, Lieu. tenant-Governor, or person administering the cjovorn. ment of the said provinces respectively, under sp.cii authority as aforesaid from His Majesty, his li(>irs or successors, from time to time, to nominate and appoint proper persons to execute the office of returning officev in the said districts, counties, circles, and toAvns ov town.shijis, shall remain and continue in force in each of the said provinces respectively, for the term of two years, from and after the commencem ^t of thi.s Aet, Avithin such province, and no longer ; but sul)ject, nevertheless, to be sooner repealed or varied In any Act of the Legislative Council and Asseml)ly ol' tlio province, as.sented to by His Majesty, his jieiis or succe.ssors. 16. Providcnl always, and be it further enacted In the authority afor(^sai(l. That no jjerson shall be ol)li!.'o(l to execute the said office of returning offiC(n' lor any longer time than one year, or oftencr than once, unless it .shall at any time be otherwise provided by any Act nt the Legislative Council and .Vssembly of the province, assented to by His ]\rajesty, liis heirs or .successors. 17. Provided also, and l>e it enacted by the autliority aforesaid, That the whole number of members to lie chosen in the province of V^ppop Conada shall not Iw less than sixteen, and that the Avliole number of mem- bers to 1)(> chosen in th(» province of Loit't'r C'diKKln shall not be less than fifty. 18. And be it further enacted by the authority afon- said, That writs for the election of members to serve in the said Assemblies respectively shall be issued by tlic r^Wl 1791.] 31 GEO. 3. c. 31.— WRITS. 575 Govovnor, Lioutcnant-Govcrnor, or poivson administering His !>[aj('stj''s government within the said provinces respectively, within fourteen days after the scaling of such instrument as aforesaid for summoning and call- in" toi^ethcr snch Assemhly, and that such writs shall be directed to tlu^ respective retimiing officers of the said districts, or counties, or circles, and towns or town- cjiips, and that such writs shall he made returnahle within fifty days at farthest from the day on Avliich they sliall hear date, unless it .shall at any time he otherwise provided hy any Act of the Legislative Council and Assomhl;. of the province, assented to hy llis Majesty, his heirs or successors ; and that writs sliall in like manner and form he issued for the election of memhei's in the case of any vacancy which shall happen hy the death of the person chosen, or liy his heing summoned to the Legislative Council of either province, and that such Avrits shall he made* returnahle within fifty days at tartliest from th<^ day on ^^■hich they shall hear date, unless it shall at any time he otherAvise provided hy any Act of the Legislative Council .and Assemhly of the pro- vinco, assented to hy llis Majesty, his heirs or suc- cessors; and that in tiie case of any such vacancy Avhich shall happen hy the death of the person chosen, or by reason of his heing so summoned as aforesaid, the writ for the election of a new member shall be issued within six davs after the same shall be made known to the proper office for issuing such writs of election. 19. And be it further enacted bv the authoritv R;,t"»i'i"g , * , ' omcers tf> aforesaid, That all and every the returning oflBcers so .xociitu Mrfts. iippointod as aforesaid, to Avhom any such writs as aforesaid shall be directed, shall, and they arc hereby authorizcMl and required duly to execute such writs. 20. And be it further enacted by the authority afore- I'y ^iiom the ■ 1 mi 1 o 1 1 T i • J members are to ^m, lliat the members for the several districts, or be chosen, counties, or circles of the said provinces respectively, shall be chosen by the majority of votes of such persons Hi I 1 liiii i iii| I \ i 57n ni OEO 3. 0. 31— XOX-ELIGTBLE PETISON'S. '1791. I as shall soverally ho. possossod, foi* tlioir own nso and benefit, of hands or tcnomonts witliin snch district, or county, or circle, as the cas(^ shall l)e, such lands heiuiif hy them held in freehold, or in fief, or in roturo or hy certificate derived luider the authority ol' the (Jo- vernor and Council of the province of Quebec, and beinf? of the yearly Aaluc of forty shilliniifs stcrliii;^, ov upwards, over and ahove all rents and chai'i;(>s i)aval)lo out of or in respect of the same ; and that tlu; ineni. bers for the several towns or townships within the sjiid provinces respectively shall he chosen hy the inajoritv of votes of such ])ers()ns as either shall severally lie ]wss(^ssed, for their own us(; and benefit, of a (Iwcllin;; house and lot of i;Tound in such town or towuslii)), such (hvelliuii' house and lot of ii;r(mnd heini;- hy tiicni held in like manner as afon'said, and beini*- of the yoailv value of fiA'e pounds sterliui;-, or upAvards, or, as liaviiii,' been resident Avithin the said town or townshi]) lor the s])ace of tweh'e calen(hir months next before tli(> date of the AVi-it of summons for the election, shall Imm JUIc I'.ciA^e paid one year's rent for the dAvellini;' lioiisi' in ',»liich they shall have so resided, at the rate of teu pounds sterlini^ pen' annum, or upAvards. Certiiin iipisoMs 21. I'rovided alwavs, and he it further enactod liv not eligible to ' ' the Assciiiiiiic^. the authority aforesaid, That no person shall he ('apal)l(' of bein£? elected a memlxM" to serA'e in eitlier oF tlu' said Assemblies, or of sittina^ or voting therein, avIio shall be a member of either of the said L(>Lcislativo Coimcils to he established as aforesaid in the said two ]m)vinces, or Avho shall be a minister of the ("liiiiclint' Englatnl, or a minister, priest, ecclesiastic, or toaelici', either according- to the rites of the Church of Rome, or under any other form or profession of religious faith or Avorship. 22. Provided also, and be it further enacted by the authority aforesaid. That no person shall be capable ol capable of ," t ,• n ii •! Toting or being votiug at any election ot a member to serAe in sucii ^^^ ' Assembly, in either of the said provinct^s, or of beniir No person under 2 1 year< of age, &c. ^i ■ " V"" jr 1791.] 31 GEO. 3. c. 31— AGE OF VOTER. )77 elected at any such election, Avho shall not he of the full ii<'c of twenty-one years, and a natural-horn suhject of His Majesty, or a suhject of Ilis Majesty naturalized 1)V Act of the British Parliament, or a suhject of His Majesty, having heconie such hy the conquest and ces- sion of the province of Canada. 23 And he it also enacted hy the authority afore- ""•■ »"y ri-'s^n said, Tliat no person shall he capahle of voting at any treason or election of a mcmher to serve in such Asscnihly, in ''""^' either of the said provinces, or of hcing elected at any such election, who shall have heen attainted for treason or felony in any court of law within any of His Majesty's dominions, or wdio shall he wdthin any de- scription of persons disqualified hy any Act of the Legis- lative Council and Assemhly of the province, assented to hy His Majesty, his heirs or successors. 24. Provided also, and he it further enacted hv the Voters, if rc- *' quirpd, to tHKO authority aforesaid. That every voter, hefore he is ad- tho foUowing mitted to give his vote at any such election, shall, if required by any of the candidates, or hy the returning oillcer, take the following oath, which shall he admin- istered in the English or French language, as the case may require : "lA.B. do declare and testify, in the presence of ^"'^''• Ahnii^hty God, that I am, to tho best of my knowledge and Ijoliel', of the full age of twenty-one years, and that I liave not voted hefore at this election." And that every such person shall also, if so required ""{Vtoth(^''>!ir- as aforesaid, make oath, previous to his hcing admitted tiiuiars htivin siii'cilicd. to vote, that he is, to the host of his knowledge and belief, duly possessed of such lands and tenements, or of such a dwelling house and lot of ground, or that he \m bona fide heen so resident, and paid such rent for his dwelling house, as entitles him, according to the provisions of this Act, to give his vote at such election for the county, or district, or circle, or for the town or townsJiip for which he shall offer the same. S'jiuo, Ir' I 578 31 GEO. 3. c. 31.— ELECTIONS. [1701. Si it n!.; lii f i His Miij<>sty may iiuthorizo tlu! (jDVcnior to fix tlu^ time mill iiliice of lioliliiig I'lic- tiuiis, niul of holding the sessions of the Council anil Assembly, &e. Council and Assembly to bo called togethiT once in I'i montlhs, &c., and all ques- tions therein to be decided by the majority of rotes. 25. And 1)0 it further enacted by the authorily nfoiv- said, That it sliall and may be lawful Tor llis ^Majesty his heirs or successors, to authorize the (Joveviior or Lieutenant-Governor, or person administeriui? the 50. vernment ■within each oF the said provinces respect ivdv to fix the time and place of holding such elections, g-iving not less than eight days' notice of such tiiiio, sul.j(^ct nevertheless to such provisions as may hereafter be made in these respects by any Act of the Lc^^islativo Council and Assembly of the province, assented to bv His Majesty, his heirs or successors. 26. And be it further enacted by the autlioijty aforesaid, That it shall and may be laAvful for His ^la- jesty, his heirs or successors, to authorize llu^ (Joveriioi' or Lieutenant-Governor of each of the said proN iiices ro. spectively, or the person administering the govevinnent therein, to fix the places and times of holding the ih'st and every other session of the Legislative Council and Assembly of such province, giving due and sufliciont notice thereof, and to prorogue the same from time to time, and to dissolve the same, by proclamation or otherwise, Avhcucver he shall judge it necessary or expedient. 27. Provided always, and be it enacted l)y tlic authority aforesaid, That the said Legislative Council and Asstnnbly, in each of the said provinces, shall bo called together once at the least in every tMolvc cal- endar months, and that ev(U'y Assembly shall coiitiidio for four vears from the dav of the return of the writs for choosing the same, and no longer, subject iievortlii'- less to be sooner prorogued or dissolved by the Covcrnur or Lieutenant-Governor of the province, or person ad- ministering lEis ^Majesty's government therein. 28. And be it further enacted bv the authoi',tv afore- said. That all questions which shall aris(^ in tlio said Legislative Councils or Assemblies respectively shall ho decided by the majority of voices of such menihois as ! ii' 1791.] 31 GEO. 3. c. 31.— CONSENT TO BILLS. 579 slmll be present ; and that in all cases Avlierc tlic voices slialilx' ecpial, tlie Speaktu* of sucli Council or Assembly, iis the case sball be, shall have a casting voice. 29. Provided always, and be it enacted by the ^° member to authority aforesaid. That no member, cither of the iie has taken Loi^islative Council or Assembly, in either of the said*''' " """"^ iivovinces, shall be- permitted to sit or to vote therein until he .shall have taken and subscribed the following oath, either before the Governor or Lieutenant-Governor of such province, or person administering the govern- mont therein, or before some person or persons autho- rized by the said Governor or Lieutenant-Governor, or other person as aforesaid, to administer such oath, and that the same shall be administered in the Eiiyrmh or Tfoncli language, as the case shall require. [Then follows the same oath as contained in 11 Geo. 3. f^'i'h. c. 8:?., ante p. 500, exee])t that there was added after the Avords "King George" thcAVords "as lawful sovereini()i' and Council of the province of Quebec; hut suhject, nevertheless, to such furtlun* or other provisions as mav he made in this behalf, by any Act of the Lef,nslative Council and Assembly of either of the said provinces respectively, assented to by Uis Majesty, his heirs or successors. 35. And AvluM'eas, by the above-mentioned Act, passed in the fourt(!onth year of tlu^ reii^n of His present ^Fajesty, it was declared. That the clerij:y of th(; Chureh of lioiiie, in the provinces of Quebec, mi^lit hold, receive, and enjoy their accustomed dues and rii^'lits, with respect to such persons only as slioiilil profess the said relii^'iim ; provided, nevertheless, tliat it should be lawful for His Majesty, his heirs or suc- cessors, to make such provision out of the rest of the said accustomed dues and rij^'hts for the eiicourai,'eiii('iit of the Protestant relisj^icm, and f(n' tin; maintenanc(' ami support of a Protestant clergy^ withhi the said province, as he or they should from time to time think neccssaiT and expedient : And whereas by His Majesty's roval instruotionsof instructious, i^iveu imder Ills Majesty's roval si!,'ii .Jan. 3, 1775,10 /i ^i • i i p t • /l ' C Sir Guy Carle- manual ou tlic tliu'd day oi January, in the year ol our on, c, an j^^^y,([ q,^q tliousand scvou liundrcd and seventy-five, to Guy Carleton, Esquire, noAV Lord Dorchester, at Hint time His Majesty's Captain-General and Govenior-in- Chief in and over His ]\[ajesty's province of Quebec, His Majesty was pleased, amongst other things, to direct *' That no incumbent professing the religion of the ' See Lord Mansticld on tliis section, &.v. r)3, Hnnsard (.'J »-m>\ 1 April and 1 May 1810; 72 Lords' Journals, 221, 251. 1791.] .il (iEO. 3. 0. 31.— GOVEUNOU'S IXSTllUCTIOXS. 583 Cliui'cli ol' Homo, apijointed to any parish in tlio said iiioviiicc, sliould 1)0 entitled to receive any tithes for l;iu(ls or possessions occujjied l)y a Protestant, but that such tithes shouhl ho received l)y such j)ers()ns as tho siiid (iiiy Carleton, Esc^uiro, His Majesty's Captain- GciK'i'al iind CJovernor-in-Chief in and over His ^Majesty's siiid province oT Qia'hcc, shouhl appoint, and shouhl ho reserved in the hands of His ]\[ajesty's lleceiver-General of the said province, for the support of a Protestant clorary in His Majesty's said province, to ho actually ivsidoiit Avithin tho same, and not otlierwiso, accordin;^ to such directions as tho said Guy Caideton, Esquire, His ]\Iajesty's Captain-General and Governor-in-Chiel' in iiiul over His Majesty's said province, should receive I'lom His Majesty in that behalf ; and that in like manner all f^rowinjjf rents and profits of a vacant benefice should, (luring such vacancy, bo reserved for and api)li(Hl to the like uses " : And whereas His ;>rajesty's pleasure lias likewise been signifunl to the same elVect in His Maiestv's roval instructions, I'iven in like manner to inMiiutions to 8iv Frederick llaldimand, kni!i;ht of the most honourable Uauiiman,! mui Oi'dei'of the Bath, lato His Majesty's Captain-General ,.'h,.sh!r, re- '^' and Governor-in-Chief in and over His Majesty's said '^"^''^' province of Quebec ; and also in His Majesty's royal in- structions, given in like manner to the said llight Honourable Guy Lord Dorchester, now His Majesty's Captain-General and GoA-ernor-in-Chief in and over His Mni(>stv's said nrovinco of Quebec ; bo it enacted by the and the deda- ' * *■ . , . ration nml ju'o- authority aforesaid, That the said declaration and provi- visions iiunin s^ion contained in tho said above-mentioned Act, and ^'of^y I.^iJ'' also the said provision so made by His iSIajesty in con- j{',l"i^'''t',"',jn. sequence thereof, by his instructions above recited, shall »'»"^ •" '"'•^'•^• I'ouain and continue to bo of full force and effect in each "I the said two provinces of Upper Cdiuufa and Lower C'diKiild i'(>spectively, except in st) far as tho said declara- tion and [)i'ovisions respectively, or any jiart thereof, shall he expressly varied or repealed by any Act or Acts which may he passed by the Legislative Council and Assembly f^t the said provinces respectively, and assented to by His 681 .31 GKO. ;{. c. .-{l.— PROTESTANT CLKllOY. 17!)1 1 ■ Mr 4 i > His Miiji'sty'i mi'SHiigc til I'ai'liiiiiK'iit rui'itrd, His Mnjesty m.iy auiliDrize tho Oovcrnor to miiko allot- ments of lands for the support of a Protestant clergy in each province ; Miijosty, liis heirs or siiccrssovs, ini(l<>r ihv restriction licrciii-at'tcr provided. 36. And wlujreas His !^^Jlj('sty lias hecu ^nicioiislv pleased, l)y message to both I louses of Parliament, to express his royal desire to ho enahled to make a per- manent appropriation of lands in tho said provinces, I'oi' tho snpport and maintenance of a Protestant cl('ri;v ■within tho same, in proportion to such lands as Imve hoen already granted withhi tho same hy His Majesty: And whereas llis ^^faji'sty lias heon f^raeiousjy ])l(>asi'(l, hy his said messajj^e, further to signify his royal desiiv that such provision may he made, with respect to ail future grants of land within tln^ said proxinces respcc- tively, as may hest conduce to the du(^ and siillicitMit support and maintenance of a Protestant clergy witliiii the said provinces, in proportion to such increasi^ as may happen in the population and cultivation thereof : Thoiv- fore, for the purpose of more elfectually fuUilliiig His Majesty's gracious intentions as aforesaid, and of pro- viding for tho duo execution of the same in all time to come, he it enacted hy the authority aforesaid, Tliat it sliall and may he Liwful for His Majesty, his heirs w successors, to authorize the Governor or Lieitteiiaiit- Governor of each of the said provinces respectively, or the person administ(M'ing tho government therein, to make, from and out of the Lmds of the Crown Avitliiii such provinces, such allotment and appropriation (if lands, for the support and maintenance of a I'rotestitnt clergy "within tho same, as may l)oar a due proportion to the amount of such lands within the same as have at any time hoen granted hy or under tlie authority of His ]\rajesty^: And that whenever any grant of lands witliiii either of tho said provinces shall hereafter he made, by oi imder the authority of His Majesty, liis heirs or suco sors, there shall at the same time he made, in respect < the same, a proportionable allotment and appropriation ol lands for the above-mentioned purpose, within the to«ii- ' Bepealcd by sec. 11, 3 & 1 Vict. e. 78. See 16 & 17 Yid. c. L'l. l"!ll.] nl GEO. 3. c. 31.— CLEROY LANDS. 585 ship or |)!Vi'isli to Avhich such lands so to bo granted shall aiipcrtaiii or he aniicxod, or as nearly adjacent thereto as c'irc'imistances will admit; and that no such i?rant sliiiil l)e valid or ctrectual unh;ss the sanu; shall contain a s|i('cilicatioii of the lands so allotted and appropriated, in ivspoct of the lands to he therehy j^rantcnl; and that such laiulH, so allotted and approi)riate(l, shall he, as nearly as the circunisranccs and nature of the case Avill admit, of tlio like (juality as the lands in respect of which the sjinio arc so allotted and appi'opriatcd, and shall he, as nearly as tlio same can he estimated at the time of making* such iiniiit, (M[ual in value to the seventh part of the lauds so !,'niiitt'(l. 37. And 1)(! it furtlun- enacted hy the authority afore- 'i''.'i.«''o !<'nt^ said, That all and every the rents, profits or emoluments, "uh iiiii.iimtits which may at any time arise from such lands so allotted to thn7|ni'i|lose niul appropriatcul as aforesaid, shall he appliciiblo solely *" "^'^^ to the maintenance and support of a Protestant clergy within the province in Avhicli the same shall he situated, and to 110 other use or purpose Avhatever. 38/ And he it further enacted hy the authority afore- "'« ^f"J>'.Y •' •' ^ may milhonzo said, That it shall and may l)e lawful for His Majesty, tho Goverm.i;, ,, , . . ii • 11 /-I with tho mlvico Ins heirs or successors, to authorize the Ciovcrnor or of tho Execu- Lioutenant-( Jovernor of each of the said provinces respcc- InrecTparwm- tivelv, or the person administering the government "p^ "^"'^ ""''"^ '_ 1 . P tnem J tliorcin, from time to time, with the advice of such Executive Council as shall have been appointed by His Majesty, his heirs or successors, within such province, for the affairs thereof, to constitute and erect, within every township or parish which now is or hereafter may '" lu '. constituted, or erected within such province, one or more parsonage or rectory, or parsonages or rec- tories, nc iding to the establishment of the Church of J^iighanl ; and from time to time, by an instrument iiuler the great seal of such province, to endow every ueh parsonage or rectory with so much or such part of ' See 3 & 1 \ ict. c. 78. and IG & 17 Vict. c. 21. Ih I '! ; I . , ■ ■ ' / 1 1 1 ' '■ \: 1 ■ i i ■' 1 ^;l '' i 586 and tiio Oovor- iior ti) j)r(ni'iit ini'iiiiiU'iiUs to tlioni, wlio are to enjoy tlio tiiuiic, as iiu'iim- bunts ill Ihig- luiid. 31 GEO. c. 31.— ENG. & CAN. CLEIJGY. [1791. rrf-s('iitatii)iis to pirsoiinms, and tlio t'lijoy- incnt of tlitiii, to Ik' snliji'ct to tlio jni'iMlii'lioii Uraiiliil to till' llisliii|i of Nova iScolia, iSci.'. the lands so allotted and appropriated as afofosaid, in respect of any lands M'itliin such t()Avnshi[) or parisli which shall have been granted suhseqiioiit to the com- mencement of this Act, or of such lands as may have heen allotted and appropriated for the same purpose, liy or in virtue of any instruction which may h(> i;iv( p. 1)\ His Majesty, in respect of any lands i^rantod hv J I is Majesty before the commencement of this Act, as such Governor, Lieutenant-Governor, or person a(hiiinis((>nii;' the s^overnment, sliall, witli the advice of the said E.KCcutive Council, judge to be expedient iuid(>r the thni existing circumstances of such township or parish. 39. And be it further enacted by the autliorily afore- said. That it shall and may be lawful for His ^iajcstv, his JKnrs or successors, to authorize the (iovonior, Lieutenant-Governor, or person admiiiisteriiiij^ tli(> ;,'()- vernment of each of tlie said provinces rcsj)t>ctiv(«|y, to present to every such parsonages or rectory an incum- bent or minister of tlie Church of England, who shall have been duly ordained according to the rites of tli(> said church, and to supply from time; to time such vacancies as may happen tlierein ; and tliat evei y jiersin so i)resented to any such parsonage or rectoiy, shall liolil and enjoy the sanu% and all rights, profits, and enioju. ments thereunto btdonging or granted, as ftilly ami amply, and in the sam(» maimer, and ca the same terms and conditions, aiul liabh; to ^'>e perftu'mance of llic same duties, as the iiicumben! t,i a parsonag(» or rectory in England. 40. Provided always, and be it further enacted In the authority aforesaid, That every such presentatiou of an incumbejit or minister to any such | \rsona;,'(' or rector}, and also the enjoyment of any such ])ars()ua;'i' or rectory, and of i\w rights, profits, nnd emoliimeiils thereof, by any such incumbent or minister, shall In' subject and liable to all rights of institution, aiul all other spiritual and ecclesiastical jurisdiction and autlio- ,;01.] 31 GEO. 3. c. 31.-BISIIOP OF NOVA SCOTIA. 587 i-itv, Mhicli have hcon lawfully cfrantcd by I lis ^fajcsty's loval letters patent to the lilshop of Nova Scotia, or wliii'li may hereafter, by llis ^[ajesty's royal autho- litv, 1)'' laurully u^ranted or appointi'd to be administenMl and executed within the said provinces, or either of lliem res|)eetively, by the said J5ishf)p of Nora Scotia, or 1)V aiiv other person or [jorsons, aecordin;islative Council and Asscnihly of th(> said provinces res]»ectively,and assented t(i liy llis Majesty, his heirs or successors, under the icsti'iction herein-after provided. 42. Provided nevertheless, and be it further enacted A't^: I'liu- l)v the authority aforesaid, 'Xliat Arhenever anv Act or eomuii im.i .\i'ts shall b(» passed by the Legislative Council and taiiiii'iV piilvi-' .\sMMnhly of either of the said ])rovinces, containing; any ^)11"'J y,|.J'i',', in'ovisions to varv or rei)eal the above-recited declaration i";iitioiiidi|>i.() iiid provision contained in the said Act passed iji liu> liMUMut, pn- liMirtccnth year of the reign of llis ])resent ^lajesty ; or 1,,'^ nis m.'i- tit vary or repeal the ab)ve-recite(l provision contained in J^^'J""'*'*''"'' Mis ijajcsty's royal instructions, given on the third day of January, in the year of our Lord one thousan»l seven limidred aiul seventy. live, to the said CJuy Carletou • Miuire, now Lord Dorchester ; or to vary or repeal tho 1 - i i' \\\\ B!j| I * i J.: li ( I i ' i 1 f: \ ilk ■ i 688 31 GKO. 3. c. 31.— TO BE LAID BEFORE IMP. I'AIJ. [lyr,, provisions horcin-boforc containod for contiimincF tli(> iorec^ and cll'oct of the said declaration and ])rovisi()iis' or to vary or n'poal any of tlu^ several i)rovisi()iis licicjn! before contaijied respecting the allotment and j\"mo. prialion of lands for the snppovt of a Proiestaiit cicnpy M illiin the said provinces ; or respectiiii^ the consljtiitiii'' erectin<>:, or endowini,' parsonajifes or rectories Mitliiu the said provinces ; or respectincf the presentation of iiicuni. hents or ministers to the same; or respectiiii,' llu; man. ner in which snch incnnihents or ministers shall hold and enjoy the same : And also that whenever aiiv Act or Acts shall he so passed, containini^' any ])r()visi()iis which shall in any manner ndate to or allect tlio cnjov. nuint or exercise of any religions form or mode of Avcu'ship; or shall impose or create any penalties, hur. tliens, (lisal)ililies, or disqualilications in res[)ect of flic same; or shall in any manner relate to or allect tin' payment, recov(M"y, or enjoyment of any of the accus. tomed dues or rii>hts herein -hefcn-e mentioned ; or sliajl in any manner relate to the grantinii^, imposiiii,', or iv. covering any other Jnes, or sti|)ends, or einoltiincnts whatever, to he ])aid to or for the use of any niiiiistcr, priest, (ecclesiastic, or teacher, according to any ivli- gious form or mod(^ of worship, in respect of liis saiil ollicc or function ; or shall in any manner relate to or allect the estahlishment or discipline of the Cliurdi of I'j II If I (I II (I, amongst the ministers and members tlinvnl Mitliin the said provinces; or shall in any iiianiKt relate to or alVeet the King's prerogative toueliiiii,' the granting \\\o waste lands of the Crown within tlic siiid ])rovinces ; every such Act or Acts shall, ])r('vi(nis tn anv declaration or signification of the King's aosciit thereto, he laid before both IFouses of Parliaiiu'iit in Croat Jiritftiii ; ami that it shall not be law fnl for lib ^Majesty, his heirs or successors, to signify his or tlicir assent to any snch .Vet ov Acts, until thirty (liu" after tlu^ same shall have been laid before llic sjiid Houses, or to assent to any such Act or Acts, in ojih' cither House of Tarlianient shall, within the said tliiri.' ' Mm ;j,l.] 31 CiKO. 3. c. 31.— FREE & COMMON SOCAGE. 589 (lavs, iV(l(lro.'[)(cilyinu: tliat such Act f"*Hains provisions for some of the said purposes herein fore specially descrilxul, and (k'siiin^: that, in order to j,'ive ettect to the same, such Act slioidd he transmitted to Enyland without delay, fitr the i)urpose of being laid before Parliament previous tu the sigiiilication of Uis Majesty's assent thereto. 43. And be it further enacted by the authority afore- said, That all lands which shall be hereafter granted witliin the said province of Vpper Canada shall be irniiitcd in free and common socage, in like manner as lands ar(> now holden in free and common socage, in tliat part of (Iroat Britain callinl Bur/land ; and that in (ncrv cas(» \\ here lands slmll be hereaft(»r granted within llif said province of Lower Canada, and where the L'raiitco thereof shall desire the same to be granted in lire and eonimon socage, the stime shall be so granted ; Imt siihjoc't ne\ertheless to such alterations, with respec?^ to tho nature and coiLsequences of such teiuire of free and conmion socage, as may be established by any law or liuvs which may be made by His Majest \ , his heirs or successors, by and with the advice and consent of the 1'1'1,'islative Council and Assembly of the province. 44. And be it further enacted by the authority iitoro.siid, That if any person or persons holding any lands in the said province of Upper Canada, hy virtue "1 any ccrtilicjitc of occupation derived under the au- 'liority of the Governor and Council of the province of Qxebcc, and having power and authority to alienate tho Lands in I'ppcr Ciinada to liu prnntc'd in free and common Nociigu, and also in Lower C'anadii if ile- birud. Persons hoiil- iiiK land.s in I'pper Canada may liuvc frcvh granttt. 590 31 GEO. 3. 0. 31. -TEA ACT EXPLAINED. ;iT!11, iiM W sanio, sliall at any tinio, from and aft(M' ilio ooininciicc nicnt. of this Act, siiiTcndor tlu* samo into the Imiids of J I is Majesty, liis Ijcmts (u* successors, by petition iu tlic Governor, or Lieutenant-Governor, or per.son adniiiiis. terinL^ tlie j^overnment of the said province, setting' foiUi thiit lie, she, or they is or are d(»sir()us of holdjn^^ tlic same in free and common socni^c;, siicli Clovcnior or Lieut(Miant-Govern()r, or per.son administerinu; the ;;(). vernment, shall thereupon cause a fresh urant to be made to such per.son or persons of such lauds, to h liolden in free and common socaji^e. Ss^n'I'to 45. Provided never! liele.ss, and he it further eiiaclcd i..ir any riuht ])y {]iq authcu'itv aforcsaid, That such surrender and or titlo to iho * *" . iiiiids. grant shall not avoid or har any riglit or title to am such lands so surrendered, or any inter(>st in iIh' same, to Avhich any person or p(»r.sons, other tlian the person or persons surreiuh'rinti; the same, sliall liaw heen entith'd, cith(>r in possession, remainder, or rovcr- sion, or otherwise, at the time of such surrender; lint that every such surrender and grant shall he niadr suhject to every such right, title, and interest, and lli;it every such right, title, or interest shall he as valid and etfcctual as if such surrender and grant had ncviT been made. 18 Hoc. X e. 12. ri'ci'.cd. 46. Alul Avhereas by an Act passed in the (M^'litccntli year of the I'eign of llis ]n'esent INFajesty, intitnlcd, ".\n Act for removing all doubts and a])prehensi(iiis con- cerning Taxation bv the Parliament of Grcaf Jirilcin, in any of the Colonics, Provinces, and Plant il ions in North Amc)''ic(t,nm\ the H'cst Indies; and for repcaliinr so much of an Act, made in the seventh year ol' tlic reign of Ifis ])re.sent ^fajesty, as imposes a Duty m Tea imported from Great Bi'itohi into any C()l<»ny ur Plantation iu At)if'rlc!' riii«in): 177S. c. I'J.. wiis : " Wliorcns lux- a rcvfiiiu' in His Miijcsty's coiii- atioii liv lilt! I'lirliainoiit of Onut iiii'.s, proviiu'cs, and |i!iimI ilion> iii r-'l 1701] 31GE0. 3. c. 31— "REGULTN. OF COMMERCE." 501 Brildiii uill not ini])ose any duty, tax, or assessment wliiitt'vcr, payable in any of His Majesty's coloin'«'s, iiiovinces, and plantations in North Anwr'ica or the ]]'(>sl Indies, excei)t only such duties as it may he ex- iHHliont to impose for the regulation of commerce,* the net produce of such dities to he always paid and iinpliod to and for the use of the colony, i)r<)vince, or ]iliintatioii in Avhich the same shall he resi)ectively levied, ill such manner as other duties collected hy the iuitlioiity of the resj)ectivo general Courts, or ircnoral Assemhlies, of such colonies, provinces, or plan- tations arc ordinarily i)aid and applied " : And whereas it is necessary, for the general hencfit of the lirilish Empire, that such power of regulation of commerce slidiild continue to he exercised hy His Majesty, his lii'iis or successors, and tlie Parliament of Great Br'Uain, snl)ject nevertheless to the condition herein-hefore re- cited, with respect to the application of any duties which may he imposed for that purpose: lie it there- This Act not to tore enacted hy the authority aforesaid. That nothing oixiMiion of ill this Act contained shall extend, or he construed to I'luiia'n'ent extend, to prev(mt or affect tlio execution of any law '■^••'''.''':''.'"« which liath heen or shall at any time he made hy imi"'*'"Kiiii'ss iiiid (lis(>nl(U's ainoiii; His .M.ilist\ s I'liilhliil Hiil)joc'ts, wlio iiiiiy iii'viTlliclcss !)(« (lispo.Hcd to :iikii(i\vlcc|;r,. tilt! jiistict! of con- iriKiilinir td tlu" coiiiinon dcfciico "I '111' iMiiiiiic. provided such coii- tiilintii.il siioiild Im" niisi'd uiitler tlii'initJKiiity of ti>o p'ueral Court, iif (icncrii! Asseiul)ly of oacli ro- >lh'<'tivi'eol()iiy, province, or plantu- tiim; And wiicreas, in onler as "I'll to remove llie said uneivsiness "ii'l I" iiuifl the minds of Ili.s Mujrslj's siil.jeets wlio may be disposed to return to their nlle- giiiuee [th(' idea was entertained hnijj after this tliat the revolted coU>nies of America woidd yet re- turn] as to r<'store fho peaeo anil welfare of all His Majesty's do- minions, it is expedient to declare." ite., as {ifiven in the text. This Act rt'pealed so much of iho 7 (leo. 3. f. 1(5. as imposed a duly on tea. ' " Rcfjulalion of eommorce " used in an impirial sense. See see. ill, snii-see. 2, B. N. A. Act, 1H157, ante p. 52. ? » i! ill T-'\' ,1 ' \ ■ ii 592 31 OEO. 3. c. 31.— DUTIES TO PllOV. [17D1, rcLi^uIalion of tli(^ coinincvce to be carriod on l)('t\vc(>ii llio sjiid two provinces, or between eitber of the siiid l)rovinces and any otber part of His Maj(>sty's do. minions, or between eitber of tbe said provinces jiud any forei^-n country or state, or for appoint jnrp and directini,' tlic payment of drawbacks of such dutiis so imposed, or to i,nvc to His Majesty, liis liojrs oi- successors, any power or autbority, by and with i]i,. advice and consent of sucb Lej^isUitive Councils and AssembUes respectively, to vary or r(>peal any such law or laws, or any i)art thereof, or iu any luaiuior to prevent or obstruct tbe execution thereof. Suoh .lutu's to 47^ Provided always, and be? it enacted i)v tlio IK' Hppllul to 1 • n . I J >'" tho list, oi' the authority aforesaid, That the net produce of all ilutics rt>.|H. i\c pio- ^^,]jjg]j shall be so imposed shall at all times villous. Jll'lV. after be aj)plied to and for tbe vise of each of tin- said ])rovinccs respectively, and in sucb mannor only as shall be directed by any law or laws mIucIi iiiuy be made by His ^Majesty, bis heirs or successors, by and with the advice and consent of the Lourislativc Council and Assembly of sucb province. HiH Maj.'sty in 4.Q ^„(| -^vbercas, by reason of tbe distance of tlic ( oiiiicil to n.t —■>-■• J ^^ and lU.iiiiv till' said provinces from this country, and of the cluuii;o rcinimfiU'onifiit , -, ji.«i. ji jii of this Aot, &c. to be made l)y this Act in the government tlioivol, it may be necessary that there should be some inteniil of time between the notificjition of this Act to the said l)r<)vinces resj)ectively, and the day of its comnicncc- nient within the said provinces resi^ectively : be it therefore enacted by tbe authority aforesaid, That it shall and may be lawful for His Majesty, with the advice of bis Privy Council, to fix and declare, or to authorize tbe Governor or Lieutenant-Governor of tlu' province of Quebec, or the person administoriiii,' tlic government th(M*e, to lix and declare the day ol' the commenci'inent of this Act within the said proviiicis resp(?ctively, provided that sucb day sliall not he later than the thirty-first day of December in the year of our Lord one thousand seven hundred and niiu'ty-onc, 1791] 31 GEO. 3. c. 31.— Isr MEETINa OF COUNCIL. 593 49 And 1)0 it further (MiacttMl bv tho authoritv ''''"'^^';'''- .. *«'• "••"" ^ « • siiiii){ till- writs •it'orcsjvid, That tho timo to ho fixed hv His Maiostv, <-• sii"""'<>i.s . 1 1 • li . .1 ' •/ "'"' '•i''''t""i. his lions or succossors, or under his or tlieir authority, &c. not to Ik. 1)V tlio Governor, LieutcMiant-Govcrnor, or person ad- i).c!;ti',"i7!)2. ininistorini^ the f^overnnient in each ol" the said pro- vinces vosiM'ctivoly, for issuini^ the writs of summons and election, and callinc^ tot^ethor the Legislative Coun- cils and Assemblies of (nich of the sjiid provinces respec- tively, shall not be later than the thirty-first day of December in the year of our Lord one thousand seven hundred and ninety-two. 50. Provided always, and be it further enacted by «<'t''«"Mtho the authority aforesaid. That during such interval as "'••>'" ^'t-'""' may happon between the comnnmcemont of tins Act, intjottiu- within tho said provinces resiJoctively, and the; first c'!iu',ioVmia meetiuii; of the Legislative Council and Assembly of ^^|!^i"'''{;^;,*'''"' pacli of the siid provinces respectively, it shall and may '""y ^<' """'«• 1)0 lawful for the Governor or Lieutenant-Governor of such province, or for the jjorson administering the Ifoverinuont therein, Avith the constMit of the major part of such Kxoeutive Council as shall be appointed by His Majesty for the affairs of such province, to make tem- ponuy laws and ordinances for the good government, peace, and Avelfare of such province,' in the same man- ner, and luidor the same restrictions, as such laws or ordinances might have been made by the Council for the atVairs of the province of Quebec, constituted by virtue of the above-mentioned Act of the fovn'teenth year of the reign of His present Majesty ; and that such temporary hiM's or ordinances shall be valid and binding ^vithin such province, until the expiration of six months after the Legislative Council and Assembly of such i)rovince shall have been first assembled by virtue of and under the authority of this Act ; subject, never- theless, to he sooner repealed or varied by any law or laws which may be made by His Majesty, liis heirs or ; • i i i ! » See sec. 91, B. N. A. Act, 1807, ante. S 2340. P P 51)1 \:\ i;ko. ;{. »•. i;{s.— norNDAiiY okfkncks. ^i«i,;j I ii II.' successors, by and willi the advice and consrni of ||„. said lie'j'islalivc^ Council and Ass(Mnl)ly. 33 GEO. 3. (1793) c. 70. Determined hy 19 Geo, 3. c. 27. 33 Geo. 3. c. 70. -was entituled, "An Act to ('stiil)lish Courts ol" Judicature in tlu^ Island of NoirfoniiilUmd and the islands adjac«Mit." This Act was, in cllVct, a continuation of the 32 Geo. 3. c. 10., which had in its turn re-esnacted 31 Geo. 3. c. 29., which n^ciled l."i (Ico, 3. c. 31. and 2(5 Geo. 3. c. 2(5., Acts providini-' lor llic decision of qm^stions concerninst;i- hlished, this Act was re})ealed so far as it alVeclcd that province {see 1 & 2 Geo. 1. c. 00., 21 & 22 Vict. c. {)!).), and totally repealed by S. L. R. Act, 1872, 35 & 30 Vict. c. 03. 13 Geo. 3. c. 138. was intituled, " An Act for cv- tending the Jurisdiction of tin; Courts of Justice in the Provinces of Lowe)" and Upper Couoda to the trial ami punishment of persons guilty of crimes and ollVnci's w ithin certain parts of North America adjoining to tlu' said provinces." The preamble was: Whereas crimes andolVencos haw been committed in the Indian territories, and otlicr parts of America, not within the limits of the proviucis of Lower or Zipper Canada, or cither of tiiem, or of the jurisdiction of any of the courts establislicd in those jirovinccs, or within the limits of any civil GovernniPiit of the United States of America, and an; tliorefore not cognizable by any jurisdiction whatever, and by reason thereof great crimes and olfcnccs have gone ami may hereafter go unpunished, and greatly iucrca^^t^ 1H09.] 40 OEO. ;{. c. 27— TIUAL OF OFFKNDKUS. 595 fi)T remedy the Act tlion prococMled to onact section 1 , That all ollences coinniitted within any ol' the Judhni, tcnitoi'i(!s, or parts of America not within the limits of citlier of th(i said provinces of Lower or Upper I'liiiddo, or of any civil Government of the Uiiiled Sl(t(('8, niij,'lil ho tried and snhjcMjt to the same j)unish- iiicnts as if tho same had Imhmi committed in Lower or V])\)C)' Comtda. By sec. 2, The (Jovcrnor of Lower Ctiiwda niiu;ht empower persons to act as justiccvs for any of tho Indian territories or parts of America at'oiosjiid for hearinpf crimes and offences and com- iiiittini,' to safe custody any olfendor for conveyance to Lower Ctinada for trial. ]?y sec. JJ, Offenders mit^ht be tried in the courts of Lower or Upper Canada, and were to he liahle to the same punishment awarded as if such crime had been really committed within the juris- diction of the court of the province where tried. ]iy soc. K If the offence charfifed unchn* this Act was prov(Hl to have hecn committed by a person not a suhjc^ct of His Maj(>sty, and also within tin? limits of any colony, sintleinont, or territory helonijfin^ to any Europwin Stiite, the court was to forthwith acquit such person or jiersons. ]Jy sec. 5, It was provided that the trial (il a siil)ject of His Maj(vsty sliould proceed, althoui^h il should a|)|)ear that the alles?(Hl offence had been ciiiiiiiiitted within the limits of any colony, settlement, or territory JH'lonj^ing to any European State. 40 GEO. 3. (1809) c. 27. hi part repealed by C Geo. 4. c. 59. s. 9, and wholly ivpoalcd, except sec. 14, by S. L. li. (No. 2), 1872, :5.) & 30 Vict. c. 97. The 19 Geo. 3. c. 27. Act determined 33 Geo. 3. c. 70., an Act for establishing? courts of judicature in New- foundland, hut re-enacted, with amendments, its pro- visions. The 14th section of this Act recited 14 Geo. 3. c. 83. awl 31 Geo. 3. c. 31., aud then enacted that, notwith- p p 2 t: \ii\l ' ' I , : ■ < 5J)0 1 & 2 OEO. 1. C-. GO.— IiriKSON'S HAY CO. [iso. I I .;'! stfindinp; anyfliini,' in tlio latter Act, tho coast of l„i,. radar and tlu; adjacent islands (('xc('i>t the islands of Mailelaino) should be iv-anncvc'd to tho (lovcniinciit of NeirfouniUand. The Goo, l, c. 59. s. D ro-amicxcd to Lower Caiioda part of tho coast of Labrador, nainch so much of the coast as " lios to tho westward of a line to bo drawn duo north and south from the hay or liar. hour of Ance Sabloti, inclusive, as far as the 52iul dc. gree of north latitude, with tho island of Aiidcosli and all other islands adjacent to such part as last aforesaid of tlu; coast of Labrador.'* This latter Act, therefore, as ref^ards tho said j)ortion of tho coast of Ltibrador, repealed, in part, 11) Goo. 3. c. 27. and 5 Geo. 1. c. 07. ''> ■'! I t\' IP 1 il ■ I : ■ 1 & 2 GEO. 1. (1821) 0. CO. Certain Avords ; and Sec. !• repealed by 53 & 51 Vict. c. 33. Sec. 5 repealed altogether, and sees. 0, 7, 8, 9, 10, 11, 12, 13, so far as they relate to lirilhli Columbia and Vancouver's Inland, by S. L. E. (187 ll, 37 & 38 Vict. c. 35. See for surrender of rights h\ Hudson Bay Company, 31 & 32 Vict. c. 105. An Act for regulating the Fur Trado, and c«cifio(l in any such grants or licenses respectively, ""t being part of the lands or territori(»s heretofor*; wmted to the said Governor and Company of Adven- turoi-sof Ktigland trading to Ilnchoti's Bai/,mu\ not being part of any of His Majesty's provinces in North America, "I' f>f any lands or territories behmging to the United "states of America ; and all such grants and licenses shall ^1^^ : I : iU\h 'I i Limitinf; the poriolH tor which Hiic'h fiirantf) may bo matlo. Persons to whom 8iu'h griiiitH Hhitll lo miulo to piitor into security. h 598 1 & 2 QKO. I. c 00.— LICENSES TO TllADK [ihji bo pfood, valid, and ofTectual for tho purpose of scciiiiii" to all such bodies corjiorate, or companies, or persons the sole and exclusive privileijfc; of tradiuij; willi iIk- Indians in all such parts of Norlfi America (execpt as herein-after excepted), as shall be spec! lied in siioh {^mnts or licenses; anylhiny; contained in any Act (if Acts of L'arlianuMit, or any law to the contrary not with. staiuling. 2. Provided always, and be it further enacted. That no such {;rant or license, made or j^iven by 1 lis .Majesty, his heirs or successors, of any such exclusive |»ri\ih';,'(s of tradinij Avith the Indians in such parts of Norlh America as aforesaid, shall be made or given lor any longer period than twenty-(nie years ; and no rent shall be recpiired or demanded for or in respect of any such j;rant or license, or any privil<\[,'es sty, his heirs and successors, and be applicMl and accoiintid for as the other land revenues of His !^[ajesty, liis liciis or successors, shall, at tho time of payment of any siicli rent being made, ])c Jipplicd and accounted for. 3. And be it further enacted, That from and after the passing of this Act, the Governor and Company of Ad- venturers trading to ITtulsou's Bay, and every body cor- porate and company and person to whom every siicli grnnt or license shall be made or given as aforesaid, shiiH respectively keep accurate registers of all persons in their employ in any parts of North America, and shall, once in each year, return to His Majesty's Secretaries of State, accurate duplicates of sucli registers, and sliiill also enter iuto such security as shall be re(j[uired by His I '\ :'f 1H21.] 1 A 2 OKO. I. 0. OC— U. S. ( OXVEN'TIOX. noo ^^ajt's(y for tlic st coast of America, to tho westward of tho Stony ;^[ounta^ns, should ho free and open to tho citizens and subjects of tho two powers for the term of ten years from the date of tho signature of that convention ; lie it tli(>reforo enacted. That nothing in this Act con- tained shall ho doomed or construed to authorize any body corporate, company, or person, to whom His Majesty may have, under the provisions of this Act, made a grant or given a license of exclusive trade with the Indians in such parts of North America as aforesaid, to claim or exercise any such exclusive trade within the limits specified in the said article, to tho prejudice or exclusion of anv citizens of tho said United States of Amo'icd, Avho may ho engaged in tho said trade : Pro- vided always, that no British subject shall trade with the Indians within such limits, a\ ithout such grant or license as is by this Act required. 5. And be it declared and enacted. That the said Act passed in the forty-third year of the reign of llis late Such (»rnnt of cxc'luNivo trmlo not to iiilcrfiTo with citizi'iM of tlie I'liitcd States iK-yond till! Stony Mountiiins. 43 Ofo. 3. c. 138.ixlcnclLHl to the trrri- torifts griint^'d to the IIudson'R Bay Coniiwny. »■ 1 1 ■ , 1 1 1 1 ! ) t 1 :j i' Courts of jmli- pal iiro cstii- (if ciiuws in 1 11(1 inn teiri lories 600 1 & 2 GEO. 1. c. GO.— INDIAN TERUITOPIES. [IS21. Majesty , intituled "An Vet for extendinf; tlie Tiu'isdiction of the Courts of Justice in tlie Provinces of Loire/- and Zipper Canada, to the Trial and Punishment of I'crsons guilty ot Crimes and Offences within certain Parts of North America mljoininii; to Hiesjiid Provinces," and all the clauses and provisoes therein contained, slia!! he deemed and construed, and it is and are herehy respcc. tively declared, to extend to and over, and to he \n full force in and throui^li all the territories herctoforo granted to the Company of Adventurers of J'Jmj/ond trading to Hudson s Bay ; anything in any Act or Acts of Parliament, or this Act, or in any grant or cluirtor to the company, to the c(mt"jiry notwithstanding. 6. And he it further enacted. That from and al'fci' Wisii":al)h^ hy the same courts, ina^'i- trates, or jl(sti^;e;" of the peace, and he tried in thesann' manner, and suh;ect to the same conse » •■ ^ to liiiiiU not •iiul actions rclatiiu? to lands, or to any claims in respect «iihin ih. pm- (»f land, not heuig within the iirovince ot Upper Cfniach, cnm.iai.. u sliail 1"' decided according to the laws of that part of ll',7i"'i'' i'«w the United Kin«?(U))n willed EiiyUnnl, and shall not he "' 1'-"k'"'''- siibioct to or alVected hy any local Acts, statutes, or laws of the Legislature of Upper Canada. 7 1 1(1 he it further enacted, That all process, writs, ^'•" 'i'"p "f » • * * coiir's to 1 1' orders, indu'inents, decrees and Acts Avhatsoever, to he is>n<.i intii. issiunl, made, delivered, given, and done hy or under the luntoioru. authority of the said courts, or either of them, shall liavt' llie same force, authority, and elVeet within tlie Slid Inil'idii territory and other parts of Jmcrica as afore- siiid, as the wmio now have within the said province of rppcr Oiiidda. S And ])e it fiirther enacted, That it shall he lawful Air-i'.""""^ ** ^ ol JUSlllTf! Oi for the Governor or Licnitenant-Ciovernor or ])erson I'taco, adiniiiistering the gov(»rnment for the tim»' heiiig of Loin'f Cdiioda, hy commission under his liand and seal, to aiithoii/.e all pers(ms who shall he appointed justices of the peaee uiuh'r the provisions of this Act, within tin? siiid Iiidioii territories, or other parts of America as at'oresvid, or any other ])erson who shall he specially named in any such commission, to act as a commissioner Avi!hiiithe sjune, for the jmrpose of executi'g, enl'orcing, and cuTying into elVect all such ])rocess, writs, orch'v ;. jud;,'nieiits, decreis, and Acts, which shall hc^ issued, math', delivered, given, or done ])y th(» said courts of judicature, and which may recpiin' to he enforced and executed within the said Indian territories, or such otlier parts of North America as aforesaiil ; and in cast; any peison or ])ersoiis whatsoever residing or heing within the said Indian t«'rritori«'s, or such ';ther jiarts of America as aforesjiid, shall refuse to oiiey or perform any such process, writ, order, judgment, decree, or Act ft the said courts, or shall resist or oppose the execution h 002 1 k 2 (JKO. I. c. «G.— CONVEYING rKISOXKi{S. [isji .ri!' !>;;l , I'll ll^'lli/.IIIICCM iwilU'll. tlioroof, it shall and may bo lawful for tlu; said jiisficNs of the peace or coininissioncrs, and they or any ol" tliciu are and is lierehy required, on the same heiii;; piovcil before him, by tlie oath or alUdavit of one credibK' witness, to commit t'lc said person or persous so oUVmU ins; as af(n'<>sjiid to custody, in order to his or their hcinir conveyed to Vppor Canada; and that it shall he liuvful i'or any such justic(» of the ])eace or cotnmissioiKM*, nr any person or piM'sons actini; under his aulliorjty, to convey or cause to be conveyed such person or [htsoiis so olfendiiii^ as afore«iid to Ujtpt'i' Caiuuln, in pursii- aiu'j' of such process, writ, order, decree, judirnieiit, (ir acl, and such person and ])ers(nis shall be conimittcd to <;aol by the said court, on his, her, ov their hciii^' so brouL!;ht into the sjiid province of Upijcr ('inio(hi,\\\ Avhich such process, writ, onh'r, decree, judi^iuciit. m' act was issued, made, delivered, i^iven, ..c done, until a linal judj^ment or decree shall liave been proiioiiiiciMl in such suit, and shall have been duly pen concrluded, in case* such person (ir ])(>rsons shall be a witness or witnesses therein: I'm- vided always, that if any j)erson or persons so appn- bended as aforesaid shall enter into a bond reci)i,'ni/.ini(v to any such justice of Ihe peace or commissioniM', mIiIi two sufllcient sur<>ties, to the sitisfaction of such justitv of the peace or commissioner, or the sjiid courts, cim- ditioned to obey aiul perforu) such ])rocess, writ, onlri', judi;nu'nt, decree or act as aforesaid, then .-uui in • inli case it shall ainl mav be lawful for tlie said insticciil liic peace or commissioner, or the said courts, to (lis- charii;e such ])erson or ])ersons out of custody. 9. And be it further eriactrd, That in case Midi person or persons shall not perforin and fulfil thefim- ditii))) Oi" conditions of such reco^'ui/anee, tlien and in such cas(> it shall and may be lawful for any sucli justice or c(»mmissioner, and he is hereby re(|uirod, to ^slii^'ij iill H21.] 1 & 2 GEO. 4. c. CO.— JUSTICES IN HUD. B.VY. 603 nssii,'!! such recognizance to the plaintiff or plaintiffs, in niv suit in ^hich such process, writ, order, decree, jii(lu;inent, or act shall have been issued, made, de- livered, given, or done, who may maintain an action ill ;lu! said courts in his own name against the said sureties, and recover against such sureties the full amount ol' such loss or daiiuige as such idaintill' shall i)iove to have been sustaiiu'd by him, by reason of the oriu'inal cause of action in respect of which such jiro- ccss, writ, order, (U'cree, judgnitnt, or act of the said courts were issued, made, delivered, given, or done as il'ore^i '. notw'tlistaiuling anything contained in any uiciiUT granted to the .said (Jovern(>r and Couipany ol' Adventurers of Einjhind tmding to IIii(l,son\s liny, 10. And be '♦ further enacted, That it shall be lawful Apji^ininiont .«, 1111 •. -i of |llslii'('s to for Ills .Majesty, ii he snail deem it convenient so to d.i.pmino (jo, to . ^; a commission or eominissions to any person or pei-s'^us to be luul act as ju.stices of the peace within such I "^ '■ America as aforesaid, as well within any territiiries iieretofon; granted to the Company of Ad- ventuicrs of EiKjltind trading to Jlinlnou's Jbay, a,s within the Indian territories of such other parts of Jmericd as aforesaid ; and it shall be lawful for the court in the ])rovince of Vpper Canada, in any ease; in which it shall appear expedient to Inueany evidenc«^ taken hv eonnnission. or anv facts or issu<'. or anv cause or suit ascertained, to issue a commission to any ihwii or more ol" such justices to take such evidence, and return the same, or try such issue uru\ for that j urpose to hold courts, and to issue rtub])ainas or other processes to compel attendance of phiiiitill's, d.-IVndants, jurcu's, witnesses, and all other persons re(|uisite and essential to the evecuttDU of the several purposes fur \vliie!i such ctninuission or commissions had issued, and with the like power and authority as are vesti'd in the com-is of the Krtid province of Up/tcr Canada ; and amy order, Vvrdiet, judgment, or decree that shall be made, found, declared, or published by or before any c(nirt or courts I. ,' i if I ; ir cot 1 & 2 GKO. 1. c. GO.— COURTS IN INI). TKIl. [1821. h .1 Kl { ; hn 1 hold under and by virtue; of such fjuiniission or eoni- missions, shall he considered to he of as full elVcct, and enforced in lik(; manner, as if the wmu; had hccMi inadc found, declared, ov jMihlished within the jurisdiction of the court of the .said province; and at llie linic ol' i.ssuinij; such commissi(m or commissions sliail he dr. dared tin; place or ])laces where such connnis> lawful may \*»\u- rnm- mi»Ni..iis iitiiiir for l[is ^^lajcsty, notwithsta'.dinijf anylhini^ C()ntain(M| t.ini.n»viiiil,'' i'^ t'ds Act, or in any charter i^ranted to the said i?Mlrtr..t"iv' ' (Jovernor and Company of Adventurers of EiKjlaml ;".'■')''"■'.'"'. , tradinu: to I[i(s witliin the said territories^ of the said comjtauy, or any /»(/'"« ti'rritories, or otiu'r parts of North AnH'ricit as nfoiv- sjud. atul th(; times and manner of holdini? tl"' '^*""'' as His ^lajestv shall from time to time onlcr and jlirect ; hut shall not try any olfender upon ;ui} cliaii,'!' w^^y^ I i 1H21.] 1 & 2 GEO. 1. V. CO.— APPEAL TO P. C. COS or iiKlic'tiiicnt for any IV'lony miulo llic suhjt^ct of capital ,!,|,'*| '„',',' l,,",',^. miiiwhmcnt, or for anv offouco or i)assiiit' scntcuco ''"'"'"'"I'i'"' iifl'cdini,' llio hlo ol any olioiuu'r, or adjudi^o or cause s, authorities, and jurisdictions shall renuiin in as full force, virtue, and effect, tis if this Act had never heen made; anything in this Act to the contrary notwithstanding. 3 GEO. 4. (1S22) c. Hi). Kepealcd excejjt sees. Jil and 82, S. L. E. Act, 1874, 37 & ;{8 Vict. c. :}5. AW' (i C5eo. 4. c. 51). An Act to regulate tlie Trade of tlie Provinces of LowiT and Upper Canada, and for otlier purposes relating to the said Provinces [:jAu(/K8t 1822.] ! »i I ! I • I 1 M 'ilV: i"i'l*?pl! GOO .3 GEO. 1. (>. 119— IXTKR IMIOV. TllADE. [I Hi!; WIIEKEAS it is ovi)(»(li(Mil to make rurllKM- ro'^n. latioii ivs|H'clinii; Ww trade ol' the inovinccs of Vppo' and Lowor Canada, in North yliucricK: IJc it thorcfoiv enacted by the Kinji^'s most Excellent IVfajesty, by and with the advice and consent of the Lords spiritual and temporal, and commons, in (his juvsent i*arliament assembled, and by the authority of GoDasoftiin the same, That fron\ and after the passim^ of this Act i>r(nliiiv of the .,,,,, . iii'i' ' ifiiina siai.s it shall he lawlul to import by land or inland iiavi;,Mtioii ■sriuMiuir (A.) HI iviiy Brtlmh or American vessel or vessels, boat or pI'rhli'iliTo boats, carriai^^e or ttirriaijjes, the ^'oods, wares, and iiiii.ioiiiu> commodities the u-rowth, i)roduce, or mannfaeture of provmoi's ot " 1 i:pi..raii(i the United States of ylmrrica, enumerated in the schedule or table annexed to tins Act marked (A.), from any port or place in tlu; United States of Amonat, into any port or phice of entry at whicli a oiistmn liouse now is or hereafter may be lawfully established, in either of the provinces of Upper and Lower Canado -. Powortoiho Provided always nevertheless, that it shall and mav (limiiiisii or in- l)e lawtul tor the lioverntn", Lieutenant-doviM-nor, or crriiM' I he ports i ' • i. • j i x. e ' i\ e ji ol iiiiiy. person administenn«jj the f;ovcrnment ot eitlier oi the said provinces respectively, by and wi'h tlie adviee and consent of the Ivxecutive Council thereof lor the time beinjjf, from time to time to diminish or iiurease by ])roelamation, the numln'r of })orts or ])laces wliieh nre or hereafter may be ai»point(>(l in such ])r<)v!nc« for the entry of j'dods, Avan's, and commodities imported from (he United States o!" America, l)iitit'« to Iw )>iiiil on rlu< 2. And be it further enacted, That from and after tlio jrooiixnu- ])assinf? of this Act, there shall be raised, levied, col- ini'mttil in i . ■ i • i i ii* mr • j i • i • i Sthfduic (H.) ; lect(>tl, and paid unto llis Alajesty, ins heu-s and sue- cessors, for and upon such of the ij;oods, wa)'es, and commoditi(»s which shall be so imported, as are eiuune- rated in tin; scIkmIuIc or tablt annexed to this Act markcMi (13.), the sevtM-al dutu^s of customs as the same are respectively inserted or described and set forth in tigures in the siiid sc ledule. ! ' I ll'T 1S22.] 3 GFJO. I. c. 119— TIIADK WITH IT. S. 007 lint. 3 I'rovidcd aUvavs, and l)o it fiirilior onacted, ^^''!'!' ,""y ,, "• ^ • ^ iirlli'lr IS liablu Tlmt iT uj);)ii the importation of any article chavi^cd lo a loi.mmi with duty l)y this Act, tho said article sliall also he iiu.om'im- liiiblc to the payniMit of duty undei- the authority Ki.'simii ol' any colonial law, equal to or excecdint^ in ain()unt ]j[|'||'|^'j*'''''.'*'''' the duty charijred by this Act, then and in such Ciise the duty cliari,'(!d n]} n such article by this Act shall not 1),' (loinanded or paid upon the inipr)rtation of such arlicK': Provided also, that if the duty i)avable under J'" •'"''>■ I'o i.-^^ • 11 111-11 • »i« llic clirtlrciu'i! such C()h)mal law shall be less in amount than the oniv simu i»! ihity payable hy this Act, tlwMi and in such case Viw '*" ■ (lilTcrcnce only hetw(HMi the amount of ihv. duty ])ayahle liy this Act, and the duty payable under the authority ol' such colonial laws, siiall be deemed to })e tlic duty ])ayal)l(' by this Act ; and the same shall be collected and paid in sucli and the like nianner, ami appro- priated and aj)plied to such and the lik(i uses, as tho duties siH'cilied in the said schedule annexed to this Act marked (IJ.) are directed to be collected, paid, ap- propriated, and ai)plied. li ■ I 4. And be it further enacted. That the same ton- T.mimKo duii.s 1 • 1 11 1 • 1 Hi • *'"■ Anicnniii naije duties snail be paid upim all Amcncan vessels or v.^mIhioIkiIu! Imats, import inu; any fifoods into either of f'.o sjiid pro- siauJTmi.u"i'' viiices, as are or may be for the time beiny jjayabh^ 'v"J'k'^'' ill the United States of yluierica, on lirU'iiih v'ess(ds uv lifiats entering; the harbours of the State from whence such goods shall have been ip.iported. 5. And be it further enacted, That in all aises in Vatnoof^'oodrf wliich the duties imposed by this Act upon the im- tain,,ihi'iii.. l»">rtal!on ol articles into the said provinces, or either i.y 3 o.o. j. "t th(>m, arc clunjjjed, not accordinu;' to the Avcii^-ht, ''■^^' wnife, (»!• measure, hut acjordint,' to the value thereof, such value shall be ascertained in the mode in-escribed hy an Act passed in this j)res(Mit scission of I'arliament, "itituled "An Act to rej^ulate the Trtule between lEis Majesty's Possessions in America and the Wo8t Indies, and other Places in America and the West Indiea." hi It i. }■ i mi till' MtllU.' Wlllllll ao iliiys. 008 3GEO.i. I. 110.— IMPORTATION OFSPIHITS. [ih^o it|.a.v.mntof Q ^,,,1 ]„. j^ fuHlior t'nactcd, Tliiit if the iiin„„.j,„. iliii ii's In' ri'- !"" " I * iiiiiv Mvmv llii' , ,7 , , . , ,, ■11. • jtimmIn ,111,1 s, II (lutics Juu'oby iinjM)si'(l tlu'ivon, ii shall an 1 niav !)(■ lawful for the collector or other chief oflic'ci of tin- customs wh(»re such articles shall he iinj)<)rlt'(l, nnd hr is hereby resi)ective]y requin'd, to take ami scciu'c tlic saiiK?, with the casks or other i)acka<;;e thereof, and to cause the same to he puhlic'ly sohl, within the space of twenty days at the most after such refusal made, aiid at such time and place as such ofBcer shall, l)y four or more days' public notice, ajjpoint for that |)mj)()sc; Avhich articles shall be sold to tlu» hii^'hest bidder, i.nd Afiiriuiym.iit {\iq, monev arisinf' from the sale thereof sliall be annlinl of lint V, over- * i. I -ii-i i-iiis to Ih- |.,ii.i to the payment or the said duties, tormiuia into the Province o^ Lon-cv Coimla. without Payment of Duty, on the same 'J'eriiis Jiiul Conditions, as such Imjiortation may he made dirccily from His Majesty's Suj^ar Colonies in the Jf'esf Indies," might not still remain in force, notwithstr.iidini,' flu' repeal of the said first-menticmed Act; be it there foiv enacted and declared. That tlie said last-mentioned Act shall be and the same is hereby repealed. 1822] 3 GEO. 4. c. 119.— APPLICATION OF DUTIES. 009 8. And Avhoroas it is oxpcdicnt to alTord protection to the trade l)otwe(Mi tho said colonics and plantations iiiul tho province of Lotccr Canuifa, by iniposiiii;; tlu^ siime duty npon rum or other spirits, the produce or mimufacture of the said colonies, imported from Great Britain into the said province, as is now payable upon till' same articles when imported from His ^[ajesty's siiid colonies or plantiitions in the JFcui Indies ; he it therefore enacted. That from and after the passini^ of this Ai't, there shall be raised, levied, collected, and paid unto ifis Majesty, his heirs or successors, for and upon every f^al Ion of rum or other spirits, the produce w manufacture of any of His ^[ajesty's islands, colonies, or plantations in tin; tf^etil Indies, which shall be im- ])oi'ted or brought into any part of the said province^ of Lotw CaiKula from Great Britain or Ireland, ovimyoi' tho lirilisli dominions in I'Jurope, the sum of sixpence, over and above all other duties now or hereafter to bo iimdo payable therecm in the said province. 9. And be it further enacted, That the rates and duties chart;eable by this Act shall be decMiicd, and are hereby declared to be sterlin*^ money of Great Britain^ •m\ shall be collected, recovered, and paid to the anwunt of the value which such nominal sums bear in Great Britain ; and that such sums may be received and taken aceordini,' to the proportion and value of live sliillin<,'s and sixpeiKH^ to the ounce in silver; and that tlio sjiid duties herein-before granted shall be received, levied, collected, paid, and recovered in the same man- iiirand form, and by such rules, ways and menus, and iiiuior such penalties and forfeitures as any other duties imahlc to His Majesty upon goods import<»d into the siud provinces of Uiyper and Lower Canada, or into 'itlicr of them respectively, ar(! or shall be raised, I'vied, collected, ])aid, and recovered by any Act or \ets of I'arliament, as fully and effectimlly to all '"tt'iits and purposes, as if the several clauses, powers, •I'leetioi.s, penalties, and forfeitures relating thereto S 2340. Q Q Ai)ilitionnl (Inly of (■>(/. per KhIIdii im Wcat India rum iiu- Iioiti'il into .iiwcr CiiniKla from tliiN king- tlum, iic. m Value of duties and iipplication of the money nrising tiierohy. ';■*'•■ I'*; I i |i • m i M 1 il| i 1 t 1 1 1 II u GIO ;j fJKO. 4. c. 11!).— INLAND XAVIOATIOX. [ISL'i! wvYo particularly rcpcatrd and aj^^ain onaolcd in tlic body of this Act; and that all the moneys uliich sliail arise ])y the said duties (except the necessary cliart^cs ot raising, coUectintf, levying, recovering, answerini,', pay. ing, and accouiiting for tlu; same) shall he paid hy the collector of ]fis ]\rajesty's cnstoms, into the liands of His ^Fajesty's Ueceiver-deneral in the said jnoviiurs rcsp(»ctively for th<^ tinu^ l)cing, and shall he applied t(» and for the use of the provinces of Upper nwd Loin'r Caiuuld respectively, in such manner only as sliall Ih; directed hy any law or laws which may he made In Jlis Majesty, his heirs or successors, hy and with the advicr and consent of the Legislative Council and Assembly ol' each of the stiid provinces respectively. Oo(k1s the 1.10. 10. And bo it further enacted, That it shall be iluc6 of His , MiytotyVdo- lawtul to cxport HI any British or Amencati vossol or niiniuns may i i i i j • • i> i» exporter to vessels, boat or boats, carnago or carriages, troiu any ol u^t!d''.sti;hl'r the ports or places of entry now or hereafti'i' to he "" '"■ established in the said provinces, to any port or plaoo in the United States of A.nerica, any article of tlio growth, produce, or manufacture of any of His ^ia- jesty's dominions, or any other article legally imi)orff(l into the said provinces: i'rovided always, that iiotliiii;' herein contained shall bo construed to permit or allow the exportation of any arms or naval stores, unless ;i license shall have been obtained for that pur[)()so from His ^lajesty's Secretary of Stat<»; and in case any sucli articles shall be shipped or Avaterborm^ for the purpose of being exported contrary to this Act, the sanu! shall be forfeited, and shall and may be seized and prosecuted as herein-after directed. but no iiriii naval ston Ik) ('X|i<>r((Ml williout a liconi>«. ! I i; M ; i : • Not to affcft inlaixl naviga- tion of tho provinces. 11. And be it further enact«ul. That nothing in this .Vet contained sha'l be construed to interfen^ with or repeal, as respects tho inland navigation of the siiid provinces, any of the provisions contained in a cortaiu Act pass(Ml in the seventh and eighth years of the ivi;,''! of King William, intituled, "An Act for provontiii^' T*T^i^ IS22.] ;J0E0. 4. c. 111).— WKSr iXIHA TIIADK. I'miuN. and ivi^iiliitini? Abuses in tljr Tmli'"; cxt't'pt ill so fur as tlu; saiiK* arc iviiciilcd by this Act. Oil Plantation 7&8Wiii.3. 0. 22, altrrod or 12. And I)(; it further enacted, That all i)enalties and ^««'<"7«"'l ^ ^ njiplicatioii ot t'lirtVitures incurred in either of the said provinces under pumiitics. this Act (('XC(![)t where it is otherwise provided), sliall and may h(; su(«d For and prosecuted in any court liaving coin|M't('iit jurisdiction within such province respec- tively; and the same shall and may l)e recovered, (lividi'd, and account(Ml for in the same manner and lorm, and hy the same rules and regulations in all ivspccts, as other penalties and forfeitures for olfences a;';iinst th(5 laws relatinj^ to the customs and trade of the said provinces r(!spoctiv«dy, shall or may hy any Act or A(!ts of the legislatures of such provinces ho ilircctpd to ho sued for, prosecutcul, recovered, divided, and accounted for within the same respectively. 13. And whennis it is expedient to encourage the trade PrawiAckon lictwcon Cdiinthf and llis Majesty s colonies ot jycw- ofrnmnud l'(iiiii(ll((iiil, Nora Scollo, New Brunsirick, and Prince Nt'wfoumihnii, Eihcanl /v/^ IMAGE EVALUATION TEST TARGET (MT-3) iJ" *?, : 1.0 I.I 1.25 ^ b£ li£ 00 1 1.4 J4 V] v^ A '/ /A Hiotpgraphic Sciences Corporation 23 WEST M»IN STREET WEBSTER, N.Y. 14580 (716) 872-4503 £?. i I 012 3 GEO. 4. c. 119.— PKOV. CANADA TRADE. [1822. !!! 1 ! Conditions on ■\vhicli the JrawUic'k sliuU be paid. Drawlvick how payable. may have been i)ai(l upon the importation tliorcof from any of the j)lacos Jast aforesaid, into any or either ot tlio said colonies of NcirfoiDHlland, Noca Scotia, New Bnnis- wick, or l^rhice Edward Island, upon a certiticateboiiic produced, mider the hands and seals of the collector and comptroller of His Majesty's customs at Quebec, certi- fying that the said rum or otlier spirits have h'HMi dulv landed in Canada. 14. And he it further enacted, That no entry shall pass, nor any drawback be jiaid or allowed, upon the ex- portation of rum or other spirits from any or either of the said colonies of Neicjmndland, Nova Scotia, Xl'k Brunswick, or Frince Edward Island, into Canada, v'lf'ss such entry be made in the name of the real owner o." owners, proprietor or proprietors of t\m said goods; and . :■■'<: before sucli owner or owners, proprietor or pro- priv-U IT, shall receive the said drawback so allowed as afo? jr-ai(t, one or more of them shall verity upon oath, upon the debenture to be made out for the payment of such drawback, that he or they is or are the real owner or owners of the said goods ; nor unless proof on oath shall be made to the satisfaction of the collector and comptroller of His Majesty's customs at the port from whence the said goods shall be so imported into Canada, that the full duties due upon the imi)ortation of the said goods at the said port had been paid and discharged: Provided always, that in cases where the owners of the said goods are resident in any other part of the liritisli dominions, it shall be lawful for tlieir known and estali- lished agents in the colonies from whence the said good< shall be so imported into Canada, to take tlie necessary oaths on belialf of the said owners. 15. And be it fiu'ther enacted, That the said dmwbaek shall be paid by the collector of His Majesty's customs at the port from whence the said goods shall he so im- ported into Canada, with the consent of tliecoin))ti'oll('r there, out of any moneys in liis hands arising from the duties of customs. ' *l |.! 1S22.] 3 GEO. 1. c, 1 19.— REGULATION OF DUTIES. G13 16 And be it further enacted, That no drawback ^ ;oi.opx- *"• , : red from sliall be paid and allowed as aforesaid, unless th i said >i wfouiKiiund rum or otlicr spirits shall be duly entered for expor ation after first '^im-"'^ with the proper officers of the customs, and actually f°'''"^'""' shipped on board the ship or vessel in which the said ijoods arc intended to be exported, A\'ithin the space of one year from the time such rum or other spirits were originally Inijiorted into the colony from Aviience it is intended to export them to Canada, nor unless such drawljack shall be claimed within one year after the if()0(ls arc; so shipped for exjiortatiou, 17. And Avhereas since the division of the province of Kpg"i;^tions as A to settling tho Quebec into the provinces of Lower and Upper Canada, proportions of divers regulations have from time to time been made, by dniwUuks bc- agreenients concluded under the authority of Acts passed ^^-^co^ by '"^°' by tho legislatures of the said two provinces respectively, arbitrators, concerning the imposing of duties upon articles imported into the province of Lower Canada, and the payment of drawbacks of such duties to the jirovince of Tipper Canada, on account of the proi)ortion of goods so im- ])ortcd into Lower Canada, and passing from thence into tho said province of Up)per Canada, and consumed there- in; the last of which agreements expired on the first day of July one thousand eight hundred and nineteen : And whereas it appears by the report of the commissioners last appointed for the purposes aforesaid, that the pro- vince of Upper Canada claims certain arrearages from tlie province of Lower Canada, on account of such draw- backs, which claims arc not admitted on the part of the province of Lower Canada ; and it further appears by the report of the said commissioners, appointed on behalf of l)oth provinces for the purposes aforesaid, that they liavc failed to establish any regulation for the period beyond the first day of July one thousand eight hundred and nineteen, by reason that they could not agree upon tlie proportion of duties to be paid to Tipper Canada by "ay of drawbacks : Por remedy of the inconvenience occasioned by the suspension of the said agreement, and U 01 i 8 GKO. 4. c. 119.— DISPUTE AS TO DUTIES. [1822, IS Mir ilM^iiii I •-■ for the satisfactory invest ipjation and adjustment of tlio said claims, be it enacted, That it shall and may l)e law. ful for the Governor, Lieutenant-Governor, or por,son administering the government of each of the said jn-o- vinces of Tipper and Lower Canada, so soon as coiivo. niently may be after the passing of this Act, to a])poiiit, by commission under the great seal of his ros])(>ctivo province, one arbitrator ; and that the said arbitiators.so appointed shall have po^er, by an instrument imdor their hands and seals, to appoint a third arbitrator ; and in case of their not agreeing in such appointment witliin one month from the date of the appointment of the arbitrators so directed to be made on the part of tlie respective provinces, or the last thereof if the said ap- pointments shall not be made on the same day. His Majesty, his heirs or successors, shall have power, by an instrument under his sign manual, to appoint sucli tliird arbitrator, Avho (if appointed in manner last mentioned) shall not be an inhabitant of either of the said provinces ; and that the three arbitrators so aj)pointed as aforesaid, shall have power to hear and determine all claims of the province of l^pper Canada upon the province of Loim Canada, on account of draAvbacks or proportion of duties under a2,"reements made and ratified bv the autlioritv of the legislatures of the said two provinces, according to the fair understanding and construction of the said agreements ; and also to hear any claim Avhicli may he advanced on the part of the province of Tipper Caimk, to a pi'oportion of duties heretofore levied in Lom' Canada under British Acts of Parliament, the division of which duties shall not have been embraced within the terms of any provisional agreement, and to report the i)articulars of any such claim, with the evidence thereupon, to the Lords Commissioners of His Majesty's Treasury for the time being ; and if it shall appear to the Commissioners of His Majesty's Treasury that any sum is justly due from the province of Loiccr Canada to the province of Tipper Canada on account of such last-mentioned claim, they shall signify the same, to- i i"; 1S22.] 3 GEO. 4. c. 119.— PENALTIES. G15 "cihav with the amount, to the Governor or person administering the government of the province of Lower Cmado for the tine being, who shall thereupon issue his Avarraut n[)on the lieceiver - General of Lower Canada, to pay such amount to the lleceiver- General of Vpper Canada, in full discharge of any such claims. 18. And be it further enacted, That the said arbitra- Power of mbi- , trators to suiid tors shall have po\^■er to send for and examine such for persons and persons, papers, and records as they shall judge ''"^° "*" necessary for their information in the matters referred to tliem; and that if any person or persons shall refuse Penalty on per- .,■,., .-, I'lj 1 1 ^'ons refusing, or neglect to attend the said arbitrators, or to produce £.m. Ijcfore them any papers or documents, having been duly served in either province with reasonable notice in writing for that purpose, he, she, or they shall forfeit and pay tlie sum of fifty pounds, to be recovered by bill, plaint, or information, in any court having competent jurisdiction within the province in Avhich such person usually resides, to be applied towards the support of the civil government of the said province, and to be accounted for to His Majesty, through the Lords Com- missioners of His Majesty's Treasury for the time being, in such manner and form as * shall please His Majesty to direct. 19. And be it further enacted. That the witnesses to witnesses to be be produced before the said arbitrators, if it is desired l)y either of the said arbitrators, shall and may be sworn before any of His Majesty's justices of the peace within cither of the said provinces, or before any one of the said arbitrators, who are hereby empowered jointly or severally to administer such oath; and that if any per- Penalty for son shall, in any such oath so taken as aforesaid, wilfully " ^'^ ^^'^' forswear himself, he shall be deemed guilty of wilful and corrupt perjury. 20. And be it further enacted. That in case of flie Appointing , . _ ' arbitrators on ueath, removal, or incapacity of either of the said arbi- vacancies, trators hefore making an aw^ard, or in case the third 'I'M' Ml: ! ! i in ill ; -i 1 I I h: i i ! I' i /, ." ! I :t i! H\ » ' ' ' 1 ■ , ii 1 J ■ 1 if . ; \ \ 1 i > ■ • ' ! . ! i 1 jj ;i Award of arbi- trators to be final. Award to bo certified to the Treasury and the Governor, &c. of the provinces. Payment of Bum awarded. 616 3 GEO. 4. c. 119.— AKBITRATORS. [1822. arbitrator chosen or appointed as aforesaid sluill refuse to act, another shall be appointed in his stead, in the same manner as such arbitrator so dead, removed, or become incapable or refusing to act as aforesaid, was originally appointed ; and that in case a third arbitra- tor shall be appointed by His Majesty as lierein-bet'ore nientio7ied, it shall and may bo lawful for the Governor- in-Chicf in and over the said provinces, to determine the amoimt of remuneration to be paid to such arl)iti'a- tor, which amount shall be defrayed in equal proportions by each province, and shall be paid by warrants, to h issued for that purpose by the Governor, Lieutenant- Go venior, or person administering the government of each province, upon the Uecciver-General thereof re- spectively. 21. And be it further enacted. That the award of the majority of the said arl)itrators, so f ; as the same sliall be authorized by this Act, shall be iiual and conclusive as to all matters therein contained ; and that if eitlier of the arbitrators nominated by the Governor, Lieu- tenant-Governor, or person administering the govern- ment of either of the said provinces, shall refuse or neglect to attend, on due notice being given, the two remaining arbitrators may proceed to hear and determine the matters referred to them, in the same manner as if he were present. 22. And be it further enacted. That the said arl)itra- tors, or a majority of them as herein-before meuticned, shall certify the award to be made by them in the premises, under their hands and seals, to the Com- missioners of His Majesty's Treasury of the Unied Kingdom of Great Britain and Ireland, and to the Governor, Lieutenant-Governor, or person administerin!; the government of eacli of the said provinces ; and that if any sum be directed by the said award to be paid to the province of Upper Canada by the province of Lower Canada, it shall and may be lawful for the Governor, 1S22.] 3 GEO. 4. c. 119.— L. & U. CANADA TAXES. 617 Lieutenant - Governor, or person administering the government of the said province of Lower Canada, and he is herehy required to issue his warrant upon the lleeeiver-General of the province of Lower Canada, in favour of the Keceiver-Gcncral of tlie province of Upper Canada, for the sum so awarded ; Avhich sum shall he accordingly paid by the Receiver-General of Lower Canada, in discharge of such warrant, and shall be iiccounted for by him to the Lords Commissioners of His Majesty's Treasury for the time being, in such inannor and form as His Majesty, his heirs and success'^ s, shall be graciously pleased to direct. 23. And be it further enacted, That the arbitrators Power to arW- 1 ji-iiini ji trators to detei'- to be appomtcd uuaer this Act shall have power to hear mine claims and determine any claim which may be advanced on LoweTcanada the part of the province of Lower Canada, upon the can^dr"^ province of Upper Canada, being of the same descrip- tion as those which by this Act may be preferred to the same avl)itrators on the part of ZTpper Canada ; and that their award thereupon shf .11 be final and conclusive, and shall be carried into eif ect if the same be made in favour of the province of Lower Canada, in the same manner as is herein directed with respect to any award which may be made in favour of the province of Upper Canada. 24. And be it further enacted, That of all duties p^ jportion of which have been levied in the province of Loiver L iTwer Can- Canada since the first day of July one thousand eight Sh t'upp^r hundred and nineteen, under any Act passed in the said ^anatia. province, upon any goods, wares, merchandise, or com- modities imported by sea into the province of Loiver Canada, and also of all duties which after the passing of this Act, and before the first day of July one thousand eight hundred and twenty-four, shall be levied ui the province of Lower Canada, under any Act passed in the said province, upon any goods, wares, merchan- dises, or commodities imported by sea into the said province of Lower Canada, the province of Upper ili : i J r t rmTnjT w li m r. 1 1 '■■' i ' ii! lilti ^iiil ^ J, itlti! t After July 1 , 1824, divisions of duties shall be awarded by arbitrators as herein-before mentioned. Award to be made every four years. G18 a GEO. 4. c. 119.— PAYMENT OF DUTIES. [1H22. Canada shall be entitled to have and receive ono-fifth part as the proportion of duties arising and c* to to tlie said province of Tapper Canada upon sucli importations- and that the Governor, Lieutenant-Governor, or person administering the government of the province of Lower Canada, shall and may issue his warrant forthwith upon the lieceiver-General o^ Lower Canada, in favour of the Receiver-General of the province of Upper Canada, for such proportion of the duties as shall have been received in the province of Lower Canada before the passin"' of this Act, and shall and may on the first day of Januaiv and the first day of July, in each and every year there. after, issue his Avarrant upon the Receiver-General of Lower Canada in like manner, for the payment to the Receiver-General of Tipper Canada, of such sum as may be then ascertained to be due on account of the said proportion, according to the provisions of this iVct. 25. And be it further enacted, That immediately after the said first day of July one thousand eight hun- dred and twenty-four, the proportion to be paid to {};/;/:>;• Canada for the four years next succeeding, of duties levied in the province of Lower Canada, under the authority of any Act or Acts passed or to bo passed therein, upon goods, wares, and commodities imported therein by sea, shall and may be ascertained by the award of arbitrators, to be appointed in the same manner and with the same powers as herein-before provided with respect to the arbitrators to w^iom the question of arrears is to be referred, and that arbitrators shall in like man- ner be appointed, and an award made once after every four years thereafter, for the purpose of establishing such proj)ortion from time to time ; and all and every the pro- visions contained in this Act, respecting the appointment, powers, and remuneration of the arbitrators to be first appointed after the passing thereof, and regarding the execution of their duty, shall apply and extend to the arbitrators to be appointed for the purpose3 last herein mentioned. 1«2.] 3 OKO. 1. c. 110.— EXPENSES OF JUSTICE. 010 paid until a new one m made. 26 And 1)0 it further enacted, That after the said Proporfion I'll 11 hcreliyesta- first day oF 'Tuly one tiiousand eight hundred and tvA'ontv- wished to u four, and until a new proportion of duties, to ho ])aid to Vpper CiDUtcla, shall be established, as heroin-bofore provided, and also at all times hereafter, in default of iinv suoli proportion being appointed, the proportion of duties last assigned to be paid to Ujyper Canada under tlic authority of this Act, shall continue to be paid by the province of Lower Canada, and warrants shall issue for tlio payment of the same, in the same manner as for tlie period before the same first day of July one thousand eiglit hundred and twenty-four : Provided always, that it shall ho in the power of the arbitrators nevertheless, by their subsequent award, to alter such proportion from the period for which it was last established, if it shall appear to them just so to do. 27. And whereas by a certain Act of the Parhament f'rojportion of ' 1 • 1 p p Ti • t'Uties now to of Grmt Britain passed in the fourteenth year of IJis !« aiiotced be- lato Majesty's reign, intituled " An Act to establish a provinces^. *° Fiuul towards farther defraying the Charges of the Ad- 1 4 Geo. 3. c. 88. luinistration of Justice and Support of the Civil Govern- ment within the Province of Quebec in America," certain duties Avere imposed upon goods and commodities im- ])ortcd into the said province, Avhicli duties are by the said Act directed to be applied, under the authority of tlie Lord High Treasurer, or Commissioners of His Majesty's Treasury, in making a more certain and adequate provision towards defraying the expense of the administration of justice, and the support of the civil Go- vernment in the said province of Quebec ; and since the division of the said province of Q?^e&e Majesty's reign, since the expiratioii of the last provincial agreemeiit heretofore ratified between the said two provinces, or which may hci'(>aftoi' be levied under the authority of the said Act, upon goods and commodities imported into Lower Canada, and to report the same, with the evidence thereon, to the Lords Commissioners of His Majesty's Treasury for the United Kingdom of Great Brilaiu and L'eland for the time being, in order that they may make such order rcspectiiif,' the proportion in which the same shall be expended within each of the said provinces respectively, for the purposes mentioned in the said Act, as to them shall seem meet: Provided always nevertheless, that nntil such order shall be made by the Lords Commissioners of His Majesty's Treasury as aforesaid, the proceeds of such duties shall be distributed in the same proportion he- tween the said two provinces, as the duties levied under the provincial Acts of the province of Lower Canmk •within the same period, subject nevertheless to be in- creased or diminished, as respects either of the said provinces, by any subsequent order of the said Lords Commissioners, extending to the period for which no such order had before been made. 28. And whereas the division of the province of Quebec, into the two provinces of Upper and LoKcr Canada, was intended for the common benefit of His Majesty's subjects residing within both of the newly constituted provinces, and not in any manner to obstruct the intercourse or prejudice the trade to be carried ou 1H22.] 3 GEO. 4. c. 110.— COMMON BENEFITS. 621 1)V the inliabitants of any part of the said late province of Quebec with Great Jiviluin, or with other countries ; and it lias accordingly been made a subject of mutual stipulation between the said two provinces, in the several acioemcuts which have heretofore subsisted, that tlie iii'oviuc'o ol' Cpper Canada shouhl not impose any duties upon articles imported from Lowe)' Canada, but would permit and allow the province of Lower Canada to impose such duties as they might think fit, upon articles imported into the said province of Lower Canada; of ffhioli duties a certain proportion was by the said agree- ments appointed to be paid to the i)rovince of Upper Canada; And Avhereas in consequence of the incon- veniences arising from the cessation of such agreements as above recited, it has been found expedient to remedy the evils now experienced in the province of Zipper Canada, and to guai'd against such as might in future arise from the exercise of an exclusive control, by the Legislature of Lower Canada, OA^er the imports and experts into and out of the port of Quebec ; and it is furtiicr expedient, in order to enable the said province of Up2)er Canada to meet the necessary cbarges upon its ordinary revenue, and to provide with sufficient cer- tainty for the support of its civil government, to estiib- lish such control as may prevent the evils which have arisen or may arise from the Legislature of Lower Canada suffering to expire unexpectedly, or repealing suddenly, and without affording to Upper Canada an opportunity of remonstrance, existing duties, upon which the principal part of its revenue, and the neces- sary maintenance of its Government may depend ; be it therefore enacted, That all and every the duties which, at the time of the expiration of the last agreement be- tween the said provinces of Zipper and Lower Canada, were payable under any Act or Acts of the province of Lower Canada, on the importation of any goods, wares, or commodities into the said province of Lower Canada (except such as may have been imposed for the regula- tion of the trade by land or inland navigation, between •I' M «'ni h : • : 1 i' €3 ' ■■■■■? i .... Mii J Sii. I > II M, !■, h I i I (522 3GEO. I.e. 119.— ENCOURAGEMENT OF THADK. [I82j. thf said |)i'ovinco and tlic United States of Ainoricd) sh.'ill be payable and sball be levied accord in;^ to the provisions contained in any such Acts, until any Act or Acts for repealing or altering the said duties, or any part thereof respectively, shall bo par-^ed by the Lofis- lativ(» Council and Assembly of the said province of Lowcv Canada, and until such Act or Acts, reiiealiiv'' or altering such duties, shall, after a copy tlicroof has been transmitted to the Governor, Lioutenant-Govornor or person administering the government of the ;)rovince of Tipper Canada^ bo laid before both houses of the Imperial Parliament, according to the forms and pro. visions contained in a certain Act of the Parliament of Great Britain, passed in the thirty-first year of the 3iGco. 3..'. 31. reign of His said late Majesty, intituled "An Act to repeal certain parts of an Act passed in the fourteenth year of His ]\1ajesty's reign, intituled 'An Act for making more effectual Provision for the Government of the Province of Quebec, in North America' and to make further Provision for the Government of the said Province," and the royal assent thereto proclaimed within the province of Lower Canada, according to the provisions of the said last -mentioned Act. |'( 'hi ii I ' i No Act y>( Legislature ini- posinpr duties whi'ivliy llu! province of Upper Oiiuiidii may lie nffceled to be valid until laid before Parliament. 29. And be it further enacted, That from and after the passing of this Act, no Act of the Legislature of the province of Loicer Canada, whereby any additional or other duties shall or may be imposed on articles im- ported by sea into the said province of Zoicer Canada, and whereby the province of Upper Canada shall or may in any respect be directly or indirectly affected, shall have the force of law until the same shall have been laid before the Imperial Parliament, as provided in certain cases by the said Act passed in the thirty-first year of His said late Majesty's reign, and tlic royal assent thereto published by proclamation in the said province of Louder Canada^ a copy of such Act having, within ono month from the time of presenting the same for the royal assent in the said province, been trans- 1 \ H-j; ;i(IK(). I.e. lin.— INTKH. PUOV. TllAFFIU. r>'2l^ mittod I)y tUo CJovtM'nor, Licutciuiiit-dovcrnor, or person ;((li;iinist< ring tlu"! ^'ovcrninoiit of tho provinco of Loirrr CdiKulii, to tho Governor, Lieut(miint-Goveriior, or jicrsoii julministoring the government of the proviDCo of Upix'i' Cdiidda : Provided always nevertheless, that it shall not ho necessary to transmit any such Act to 1)0 laid hcl'oro tho Imperial Parliament, if, before the same shall have been presented for the royal assent witliin the said province of Loiver Canada, the Legis- lative Council and Itoiiso of Assembly of the said province of TIppov Canada shall, by address to tho (rovcmor, Lieutenant-Governor, or person administer- ing tho government of the said province of Upper C'aiKidd, pray that their concurrence in the imposition of the duties intended to be imposed by such Act may be signified to the Governor, Lieutenant-Governor, or person administering the government of the said pro- vince of Lover Canada. ■W 30. And 'A ^.erea8 it is expedient that the productions of the province of Upper Canada should be permitted to be exported witliout being made subject by any Act of the province of Lower Canada, either directly or in- directly, to duties or impositions on their ai'rival in that province, or in passing through the waters thereof: Be it onacted. That from and after the passing of this Act, all and every the boats, scows, rafts, cribs, and other craft l)el()n;,nng to any of His jNtajesty's subjects, and coming from the province of Upper Canada into the province of Lower Canada, not laden with the produc- tions of any foreign country, shall be allowed freely to pass into and through the said province, and shall not be subject to any rate, tax, duty, or imposition, other than any charge which may now exist for pilotage, or which may now be established for toll at any lock or other work now actually erected on the navigable waters thereof; any law, statute, or usage of the pro- vmce of Lower Canada to the contrary notwithstand- iug ; and that tho expense of improving the navigation Loats nnd other craft liolongiii{5 to His :r:i- jcsty's sulijt'cts may go from Upper Camilla into Lowor Canada, not laden with foreign produc- tions, without being suliject to any duty. ' 5i I M im. iiii- !i!::i: If il How expenses of iniproviiiK the navigatioM shuU be paiil. Lnnds held in fief and soijj;- nory may, on petition of the owners to His Majesty, &c., be changed to the tjnure of free and com- mon socage. 021 3 GEO. 4. c. 119.— ALIENATION OF FIEFS. [ih22 of the waters of the river Saint Lawrence almll in future be defrayed by such measures and in such pro. j)ortions as the arbitrators to be appointed under the provisions of this Act shall determine, upon tlie praver of either province: Provided always, that no such de- terminn+ion shall be carried into effect until sanctioned and enacted by the legislatures of both of the said provinces. 31. And whereas doubts have been entertained whether the tenures of lands within the said province.s of Zipper and Loiccr Canada holden in fief and soignoiy can legally be changed : And whereas it may materiahv tend to the improvement of such lands, and to tlie general advantage of the said provinces, that such ten. ares may henceforth be changed in manner herein-after mentioned : Be it therefore further enaeted and de- clared, That if any person or persons holding any lands in the said provinces of Lower and Upper Cauailo, or either of them, in fief and seignory, and liavini,' legal power and authority to alienate the same, shall at any time from and after the commencement of this Act, surrender the same into the hands of Ilis Majesty, his heirs or successors, and shall by petition to His Majesty, or to the Governor, Lieutenant-Governor, or person ad- ministering the government of the province in whieli the lands so holden shall be situated, set forth that lie, she, or they is or are desirous of holding the same in free and common aocage, such Governor, Lieutenant- Governor, or person administering the government of such province as aforesaid in pursuance of His Majesty's instructions, transmitted through his principal Secre- tary of State for Colonial Affairs, and by and Avith the advice and consent of the Executive Council of such province, shall cause a fresh grant to be made to such person or persons of such lands to be holden in free and common socagt; in like manner as lands are now holden in free and common socage in that part of Great Britain called England ; subject nevertheless to payment to Ilis -:.i; 1822] 3 GEO. t. c. 119.— ABOLISHING OF TENURES. 625 Maiesty, 1).V such grantee or grantees, of such sum or sums of money as and for a commutation for the fines and other (hies which wouhl have heen payahle to His Majesty under the original tenures, and to such condi- tioi.s as to Ills Majesty, or to the said Governor, Lieutenant-Governor, or person administering the go- Tornment as afores'iid, shall seem just and reasonahle : Provided always, that on any such fresh grant heing made as aforesaid, no allotment or appropriation of lands for the support and maintenance of a Protestant clergy shall be necessary ; but every such fresh grant shall be valid and effectual without any specification of lands for the purpose aforesaid ; any law or statute to the contrary thereof in anywise notwithstanding. 32. And be it further enacted, That it shall and may His Majesty be lawful for His Majesty, his heirs and successors, to with p°ore^L* commute with any person holding lands at Cem et H^cenf et"'^* ^ctdes in any censive or fief of His Majesty within Rentes, either of the said provinces, and such person may obtain a release from His Majesty of all feudal rights arising by reason of such tenure, and receive a grant from His ^Majesty, liis heirs or successors, in free and common socage, upon payment to His Majesty of such sum of money as His Majesty, his heirs or successors, may deem to be just and reasonahle, hy reason of the release and grant aforesaid ; and all such sums of money as shall be paid upon any comm.utations made by virtue of this Act shall he applied towards the administration of justice and the support of the civil government of the said province. 33. And he it further enacted, That if any person or General issue, persons shall be sued or prosecuted for anything done or to be done in pursuance of this Act, such person or persons may plead the general issue, and give this Act and the special matter in evidence ; and if the plaintiff or plaintiffs, prosecutor or prosecutors, shall become non-suit, oi forbear the prosecution, or discontinue his, S23iO. E B "1 ^ 1 V. \ ■ ! \ f '! 1 1 1 . hd u , i mi Treble costs. 626 3 GEO. 4. c. 119.— SCHEDULES. [1822. her, or their action, or if a verdict shall pass against him, her, or them, the defendants shall have tiel)lo costs, and shall have the like remedy for the same as in cases where costs are by law ^iven to defendants. 4 :l jUM m m I J SCHEDULES TO WHICH THIS ACT REFERS, SCHEDULE (A.) Asses. Live Stock of iiny sort Lumber. Barley. 1 Logwood. Boans. Biscuit. Mahogany and other Wood li Bread. Cabinet Wares. Beaver, and all sorts of Fur. < Masts. Bowsprits. Mules. Calavances. Neat Cattle. Cocoa. Cattle. Oats. Cochineal. Coin and Bullion. Pease. Cotton Wool. Potatoes. Poultry. Drugs of all sorts. Pitch." Diamonds and I'recious Stones. Rye. Flax. Kice. Frnit and Veofetnbles. Fustick, and all sorts of Wood Staves. for Dvcrs' use. Skins. Flour. Shingles. Grain of any sort. Siicei). Garden Seeds. Tar. Hemp. Tallovy. m 1 Heading Bonrds. robacco. Horsos. Tiu'pentine. Hoi^s. Timber. Hides. Tortoise-shell. Hay. Hoops. Wool. Hardwood or Mill 'rind>er. Wheat. Indigo, Yards. SCHEUl JLE (B.) £ s. i Barrel of Wheat Flour, not weighing more than IJ)6 lbs. net Storlini weight - - - - . . . ,; (I Barrel of Biscuit, not weighing more than 196 lbs. net weight !' C For every cwt. of Biscuit - - - . -Old For every 100 lbs. of Bread, made from wheat or other griiiii, imported in bags or packages - - - - 2 li 1 I82t.] -^ &150- 4- c. 67.— JUSTICE IN NEWFOUNDLAND. 627 £ s. m the said d Suprcaie tion of the i ; and that huiuistered iand, place, lit thereof, "been duly m all cases ill in Ncu:- ipon 1)cing out ■ I'ohato 11 1)^ ahsent ic deceased be exposed )v the said lie reg'istvai' and prtjper or deposit. Lce, or upon d directions •t in respect i'ects. id Suvirome to im.] 5 GEO. 4. c. 67.— CIRCUIT COURTS. 631 affairs, which the said Supreme Court shall have power and authority to enquire of and determine, by inspection of the person, or by such other ways and means as to qich Supreme Court shall seem best for ascertaining the truth. 7 And be it further enact(Hl, That it shall and may Ooyemor may ',„,-, y~, J- /-I i> J^ divide colony 1)0 lawtul for the Governor or acting Governor tor the into three dis- tinie being of Newfoundland, by any proclamation or *"'^'*' proclamations to be by him for that purpose issued, to apportion and divide the said colony into three several districts, and to fix and ascertain the boundaries and limits of every such district, and such boundaries or limits from time to time to alter as occasion may rc(piire : Provided always, that such apportionment of the said colony into such districts as aforesaid, be made in sucli manner as to such Governor or acting Governor may appear to be best adapted for ena1)ling the inhabi- tants of the said colony to resort Avith ease and con- venience to the circuit covirts to be therein "stablished as after mentioned. 8. And be it further enacted. That it shall and may His Majesty *- • 1 1 ™'^y institute be lawful for His Majesty, by any such charter or circuit courts. letters patent as aforesaid, to institute circuit courts in each of the three districts in which the said colony may be so divided as aforesaid ; and each of the said circuit courts shall be holden once at least in each year by the stud chief judge, or by one of the said assistant judges of the said Supreme Court of Neivfoundland, at such times, and at such one or more place or places Avitliiu each of the said districts, as the Governor or acting Gover.ior for the time being of Newfoundland shall from time to time direct and appoint. 9, And he it further enacted, That the said circuit circuit courts courts shall be respectively courts of record, and shall, rcconrcxer-"' within the district in wliicli it may be holden, have and -^frisdiclionr' exercise all such and the same jurisdiction, powers, anrl the Supreme authority, as is hereby vested in the said Supreme Court iu the' cases of ill Vi u :i' \i\' hr-l t ! i:l 632 5 GEO. 4. c. 67— TRIAL OF CRIMES. [1S21. trcn.soii niul felonies, not within iKMieflt of clergy, &e. Crimes cogniz- able in circuit courts nnd civil actions to bo tried by jury according to the law of England. But M'here a jury shall not be formed, trials for crimes shall be hiul bj' the circuit judge and three assessors, being justices of peace, and no- minated by the Governor. Such assessors liable to be challenged. of Newfoundland tliroucjliout tlio whole of tlu; said colony ; saving and excepting the trying and dctci. mining of treasons, or misprisions of trc^ason, and felonies not Avithin the benefit of clergy, and Ww \u'i\m„ or determining of any information, suit, or action, for the breach or violation of any Act of Parlianiont iv. lating to the trade and revenue of the British colonics in America ; all which said crimes and otfoncos, inl'or. mations, suits, and actions, shall he tried, en(]uii'ed of, heard, and determined in the said Supreme Court of Newfoundland, and not elsewhere within the said colony. 10. And he it further enacted, That all crimes and misdemeanors, cognizable in the said circuit courts, and all issues of fact which may be joined botwooii tlie parties in any civil action, depending in the said ciiciiit courts, shall be enquired of, heard, and determined by the said circuit judge, and a jury of twelve men, accord- ing to the rules and course of the law of Emjhiml, us far as the situation and circumstances of the said colonv t will permit. 11, Provided nevertheless, and be it further enacted, That if upon the trial of any crimes or misdeuieaiiors before any of the said circuit courts, twelve good and lawful men shall not appear to form a jury, then and in all such cases such trial shall be had bv the circuit judge and three assessors, being justices of the peace in and for the said colony, or for some district thereof; and the said justices shall be nominated from time Id time to serve as such assessors as aforesaid by tlic Governor or acting Governor for the time being of tlic said colony, and shall severally be liable to be clialleng:ed or objected to upon the special ground of direct interest or affection, to be specified in open court at the time of challenge ; and in case of such challenge or objection being allowed by the judge of the said circuit court, tlie justice of the peace so challenged or objected to sliall be succeeded by another such justice of the peace, fflio 1H21.] 5 GP:0. 1. c. 07.— EVIDENCE IN WRITING. (533 sluill in like inauncr bo nomiricatcd l)y the Govonioi' or acting (lovornor for tlic time beini? as aforesaid, and be liable in the same manner to challenge or objection, until three such justices of the peace shall appear duly qualilied for the trial of any offender in the said circuit courts respectively ; and the said justices of the peace shall thereupon severally take and repeat in open court [he same oath as is taken by pcitit jiu'ors impanrelled for the trial of any crime or misd(Mneanor in a court of Yword in Btif/land ; and the judges of the said circuit courts respectively shall, togetluH' with the said three assessors, give their verdict upon every such trial in open court ; but no person shall be found guilty by any such verdict unless the judge of the said court, and two at the least of his said assessors, shall concur in such verdict ; and the pr*^ 3cedings in the said circuit courts respectively shall be under tiie control and direction of the respective judges thereof, and all matters of law arising in the course of any trial shall be determined by such judges respectively. 12. Provided also, and be it further enacted, That if upon the trial of any issue or issues of fact joined between the parties in any civil suit or action depend- 'ng in any of the said circuit courts, twelve good and lawful men shall not appear to form a jury, all riich issues of fact shall be tried and decided by the judge of such court alone, and without a jury ; and that in all cases where the sum or matter at issue in any such suit or action shall exceed or be of the value of more than fifty pounds sterling British money, the judges of the said courts respectively shall cause the evidence on any such hearing or trial as aforesaid to be taken down in writing by the clerk, or other proper ofl&cer, in open court, in the presence of the witnesses respectively giving the same, and the evidence so taken shall be entered upon the proceedings of the said courts respec- tively, and be of record ; and in every case in which any appeal shall be made and allowed under the pro- Civil iictioiis to Ix) (I'ieil liy tho judge of tho court aloiio whore jury shaU not bo formed. Evidence, •ttliere tlio nnitler at iwuo is aliovc tlie value of £50, to be ill writing. On appeal, documents to be produced. Ife i! 1 IJI II i r*! 5 GEO. 1. c, 07.— PROCEDURE. [1824. ' ■ . lis '■ Ul m-l M: A i> '! On application of cither of the parties before trial, though the sum docs not amount to £60, the judge inaj permit the evidence lo Ix) recorded. fi ' I Appeal to the Saprenie Court may be made on giving notice. visions of tliis Act, from any jiulgmont of tlio said circuit courts, not foiuided on iho verdict of a juw. copies of all documents and papers which sliall have lieen produced and j^iven in evidence, sliall he certified by the said clerk, or other proper officer, as autlicntic ; and also copies of any documents and papers wliich shall have; been produced and tendered in evid(nic(> and r» jectcd, shall, if required by the party produciiiL;' tlic same, be in like manner authenticated, but marked 1)y such officer as aforesaid as rejected, in order that all such copies may be annexed to the record, as part thereof, in case of appeal. 13. And be it further enacted, That it shall he laAvfiil for the judges of the said circuit courts respectively, on the application of either of the parties, plaintill' or defendant, at or before the trial of any issue of fact joined in any civil suit or action commenced in the said circuit courts respectively, in case such issue is not trietl by a jury, to permit the evidence on such trial to be recorded and certified as aforesaid, although the sum or matter at issue mav be less in value than flt'tv jjounds sterling, provided it shall be made to appear to such judge that the judgment, decree, order, or sentence, which may be given, made, or pronounced in such suit or action, may be of such importance as to render it proper that an ajipeal should be permitted; and if, after giving or i^ronouncing such judgment, decree, or order, the said judge shall be of opinion that such judgment, decree, or order is of such, importance as to make it proper that an appeal should he per- mitted, it shall be lawful for the said judge to allow either of the said parties, plaintiff or defendant, to appeal to the Supreme Court, in like manner, and under and subject to the like rules and regulations, as in and by this Act directed in other cases of appeal. 14. And be it further enacted. That it shall be lawful for the plaintiff or plaintiffs, defendant or 1824; T) GEO. 1. e. 07.— VERDICT OF JURY. 635 (lofeudfints, acfainst whom any jud^-mont, docvrc, or nrder of tli(5 said circuit courts respectively shall bo (piveii, I'oi- oi' in respect of any sum or matter at issue above or exceedini? the value of fifty pounds sterlinj^, to appeal therefrom to the said Supreme Court, and the party or parties appealing from such judgment, decree, or order, shall, within foiu-teen days from the passing thereof, give notice to the adverse party or parties of such appeal, and within fourteen days from and after such jiuli^ment, decree, or order, enter into sufficient security, to he aj)proved by the judges of t^> said circuit courts resp(ictively, to satisfy or perfo/;m the slid jiul^'niont, decree, or order, in case the «;ame shall liL' aflh-med, or the appeal dismissed, together Avitli such further costs as shall be awarded thereon ; and in all cases of appeal, where notice shall be given and secu- rity perfecied as aforesaid, execution shall be stayed, and not otherwise ; and the said Supreme Court shall and may enquire into, hear, and decide all questions, whether of law or of fact, arising upon any such appeal, hut shall not admit or receive any evidence which A\as not tendei'cd to the Circuit Court from which such app(\al may be brought on the hearing or trial of any such suit or action therein : Provided always, that the A'tiiiict of jmy said Supreme Court shall not reverse, alter, or enquire qUirdi imc' into any judgment of the said circuit courts, founded on the verdict of a jury, except only for error of law apparent upon the record. 15. And be it further enacted. That as often as any Actions may action or suit shall be brought in the Supreme Court, from ono court or in either of the said circuit courts jespectively, and it sliall 1)0 made to appear to the court before which siicli action or suit may be pending, that such action or suit may be more conveniently heard and determined either in the said Supreme Court or in some other of the said circuit courts, it shall be lawful for such court to permit and allow such action or suit to be removed to such other court, and such allowance shall be cer- f I i l" y\i i . s i ; i ]' A |.H : !! C53fl 6 GEO. 4. c, 67— SECURITY. flH2l. iWmX by the jiidn'c, t()i;'<'tli(M' uitli \]\o writ or pi-oecss and proceed! 11 i^s in .siicli action or .suit, lo tli(» court into which such iictioii or suit, shall be iiiteiKlcd to Iii> removed; and tIu'reu])on it .sliali be lawi'iil I'or siuh last-iueMtioued court, and such court is hereby iv(|iiiiv(l to prouv'ed in such action or suit in like niaiiiicr as if the same liad been orij^-inally commenced and |)iom.. cuted in such last-mentioned coiu't. 16. And bo it further enacted, That in all actions at Di'foiulanis not U|l|"'lirill^r (111 smiim.ins lliiir Jji^y o^. suits ill CCIuitV, wllich sliall 1)0 brOUi-llt ill tile (j;i)oils lo Ik' at- ' ' 111 tachwi or 1.11'. .said courts re.sj)ectiv«My, where the debt or .siini dc Hoiw arri'stt'il, i i i ii x i i t ' m • . &c. ■ nianded sliail not l)c sworn to as nereni-aiter mentioned, the defendant or defendants in such action or suit slmll be made to appear to such action or suit by sunnuons, to be issued by the chief judye of the said Sujiiviiic Court or by the jiulges ol" the .said circuit courts resi)ectively, and served by the proper officer on the said defendant or del'oiidants personally, or left at his, her, or their usual place of abode ; and in all cases where such summons shall be disobeyed, or Avhere the debt, damages, or thing demanded shall exceed ten pounds sterling money, and shall be sworn to in an afiGdavit made by the plaintifV or plaintiffs, or liis, her, or their lawful attorney, then the said defendant or defendants shall be made to api)ear by attachment of his, her, or their goods, debts, or effects, or by arrest of the jiorson of the said defendant or defendants ; and in case of his, her, or their goods, debts, or eifects being attached as aforesaid, such goods, debts, or effects, or so much thereof as shall be judged by the said court sufficient to satisfy the debt or damages, shall be held as security for such debt or damages, and shall abide the order, judgment, or decree of the court issuing such attach- ment, unless the defendant or defendants, or some person on his, her, or their behalf, shall appear and give good and sufficient bail, to be approved by such court, to satisfy such judgment, decree, or order; and where the defendant or defendants has or have been !"'-i TTTni m.] 5 GEO. t. c. 07.— MAKING RULES. 687 am'stt'd, Ik', she, or they slmll not Ix; (liscl»ai'<^r(i out of custodv, until h(>, .she, or they slmll in like nmnm'r Imvo irjvcn !,'0(t(l and sufricicnt bail to be approved by such court, to s,itisl'y the ju(l<^inent, decree, or order of the court ill the causes in wliicli such arrest was made; and it slmll also bo lawful Tor the said courts res[)ectively, when any such action or suit as aforesaid shall bo (IcpciKlint,' therein, to cause to appear from (hiy to day 111! parties interested therein, and to examine upon oath anv of such parties in case; such examination shall appear to the .said court necessary for the discovery of the truth, but not otherwise ; and thereupon, and after due consideration of all circumstances of the case, to make such order, judgment, or d(;cree therein, and award such damages and costs, as shall be just and i'qiiital)le ; and such order, judgment, or decree shall be enforced by attachment and .sale of the goods, debts, and effects, or by arrest of the person or p.^rsons against whom such order, judgment, or decree .shall bo made, and iuipi'isonmcnt of such per.son or persons until such order, judgment, or decree shall bo performed and SiUistied. 17. And be it further enacted. That it shall be law- row.rs given ful for His Majesty, his heirs and successors, by such mies ami orders charter or letters patent as aforesaid, or by any order Ings i\'i nTsul' or orders to be hcu'eaf ter issued bv and with the advice ^'^T"- ^ "■?'' nnil circuit of his or thoir Privy Council, to make find prescribe, or courts, &c. to authorize and empower the said Supreme Court of yewfoundland, under such limitations as His Majesty shall deem proper, to make and prescribe such rules and orders touching and concerning the forms and manner of proceeding in the said Supreme Court and circuit courts respectively, and the practice and plead- ings upon all indictments, informations, actions, suits, and other matters to be therein brought ; or touching or concerniug the appointing of commissioners to take hail, and (>xamine witnesses ; the taking examinations of witnesses de bene esse, and allowing the same as iHf! !i! :li im ; I 1 - ' I |:i; I; IH . 1, s I! n:'! lU i'S"; i*>; iii^ '1 638 Power to tho Governor to institute ii court of civil jurisiliotion on thu const of Labnulor, &0. 51 Geo. 3. c. 45. Court to be hold by one judge, nnd to liciir and detcr- inino com ■ plaints of a civil nature. 5 GEO. 4. c. 67.— COAST OF LABRADOR. Ll!>2t, evidence ; the granting of probates of wills and l(>ttoi<« of administration ; the proceedings of the slionff and his deputies, and other ministerial officers ; the sum. moning of assessors for the trial of crimes and mis- demeanors in the said circuit courts ; the [)iocoss of the said court, and the mode of executing the same- the impannelling of juries ; the admission of l)iiiristors attorneys, and solicitors; the fees, poundage, or m: quisites to he lawfully demanded by any officer, attorney, or solicitor in the said courts respectively and all other matters and things whatsoever toucliiiii; the practice of the said courts, as to His jMajestv, his heirs and successors, shall seem meet for the propoi' conduct of business in the said courts ; and snch rules and orders from time to time to alter, amend, or revoke. as to His Majesty, his heirs and successors, shall seem requisite. 18. And whereas it is expedient to make fiivtlier provision for the administration of justice on the coast of Labrador ; be it further enacted, That so much of an Act passed in tho fifty-first year of the reij^ni of His said Majesty George the Third, intituled " An Act for taking away the Public Use of certain Ships Rooms, in the ToAvn of Saint John's in the Island of yewfoiinl land, and for establishing Surrogate Courts on tlie coast of Labrador, and in certain islands adjacent thereto," as relates to the institution of surrogate 001111*, shall be, and the same is hereby repealed ; and that it shall and may be laAvful for the Govcn-nor or actin? Governor of Neiqfoundland for tho time hmv^, to institute a court of civil jurisdiction at any siuli parts or places on the coast of Labrador, or tlie islands adjacent thereto, which, in and by the said Act passed in the fifty-first year of the reign of His ^lajtsty George the Third, ai-e re-annexed to the Govciniiuiit of Newfoundland, as occasion shall require ; and sucli court shall be held by one judge, and shall he a court of record, and shall have jurisdiction, power, and lDOR. [Ib2l. ills and lottovs ■ho shci'iiT mid ;crs ; the sum- 'imcs and mis- thc i)i'()cess of ing the same; 11 of bavristoi's, ndage, or per- ^ any oflicer, s respectively; 5oevev toucliiii!; [is ^tajesty, his for the proper and snch rales lend, or revoke, soi's, shall seem 1824.] 5 GEO. 4. c. 67.— APPEALS TO S. C. 639 authority to hear and determine all suits and complaints of a civil nature arising within any of the said parts and places on the coast of Labrador, or the islands adjacent thereto ; and the said court shall be holden 1)V a judge, who shall he appointed from time to time bv the Governor or acting Governor of Neiofoimdland, and shall have a clerk and such other ministerial officers as tUe Governor or acting Governor shall appoint; and the proceedings of the said court shall l)c summary, and ?ucli forms of process, and such rules of practice and proceeding as shall he settled by the chief judge of the said Supreme Court, shall be fol- lowed Iw the said court, and no other. 19. And be it further enacted, That it shall and may Appeal to Su- be lawful for the plaintiff or plaintiffs, defendant (jr Shi cases. '" defendants, against Avhom any judgment, decree, or order of the said court shall be given, for or in respect of any sum or matter at issue above fifty pounds sterling, or where the matter in dispute shall relate to the title to any lands, tenements, right of fishery, annual rent, or other matter, where, in the judgment of the said court, rights in future may be bound, to appeal there- from to the said Supreme Court ; and the party or parties appealing from such judgment, decree, or order, shall, within seven days from the passing tliereof, give notice to the adverse party or parties of such appeal, and within fourteen days fro' - and after such judg- ment, decree, or order, enter into sufficient security, to he approved, by the judge of the said court, or some person to be appointed by him for that purpose in his absence, to satisfy or perform the said judgment, decree, or order, in case the same shall be affirmed, or the appeal dismissed, together with such further costs as shall be awarded thereon ; and in all cases of appeal, where notice shall be given and security perfected as aforesaid, execution shall be stayed, and not other- wise. \\\ i u uf I- 1 1 1 nlll 640 5 GEO. 4. c. 67— APPEALS TO P. C. [1824. ^S,?'(":urt 20. And 1)0 it further enacted. That it shall ami to iiis Miijcsty may bo lawful for Hi.s Maiesty, by his said cliartor nr in Council. j #/ ' i/ mv i m letters patent, to allow any person or persons, fooUno aggrieved by any judgment, decree, order or soiitonco of the said Supreiin; Court, to appeal thorcfroiiv to His Majesty in Council, in such manner, within such time and under and subject to such rules, reguLitions, and limitations, as His Majesty, by such charter or letters patent respectively, shall appoint and direct. Governor, on 21. And bo it furthor enacted. That the GoAfM-iiov or arrival of Ilis n ht f Majesty's actuig (iovernor or Jyewjounalana, upon the ai'nval in notiVWo- ^^^^ ^^^^ colony of His Majesty's charter or letters the™ ourt" shall P'^t^nt for tho ostabli-shmont of the said courts by 1)6 opened, and yirtuc of tliis Act, sliall l)v proclamation notifv to the thereupon so • i \ ^ . i much of inhabitants of the said colony, tho time when the .said asrehitostotho courts rospoctivoly shall 1)0 intended to bo o])oiio(l; and Stut^rshaii ^^^ ^oow as the judges of the said Supremo Court shall ih. repealed, and havc assuiiied and entered upon tho exercise of their proceeUingsand .... , . roeonis of those jurisdiction therein, then and from thenceforth so much over to tho of tho Act passed in the forty-ninth year of the rciijn of His late Majesty George tho Third, intituled "An Act for establishing of Courts of Judicature in the Island courts insti- tuted under this Act. of Newfoundland, and in the Island adjacent ; and for re-annexing Part of tho Coast of Labrador, and tlip Islands lying on tho said Coast, to tho Government of Newfoundland," as relates to the courts therel)y insti- tuted, and respectively called the Suj)romo Court of Judicature of the island of Newfoundland, and surro- gate courts, shall cease to be in force and determine; and every suit, action, complaint, matter, or thine:, which shall bo depending in such last-mentioned courts respectively, shall and may be proceeded u])()n In the Supreme Court instituted under and by virtue of this Act, or either of the said circuit courts which shall have jurisdiction within the district or place in New- foundland where such action or suit respectively was depending ; and all proceedings which shall thereafter 1824] 5 GEO. 4. c. 67.— NEWFOUNDLD. INSOLVENTS. 641 1)P had in such action or suit respectively, shall be conducted in like manner as if such action or suit had been orii^inally commenced in one or other of the said courts instituted under this Act ; and all the records, muniments, and proceedings whatsoever, of and be- iDui'in" to the said courts instituted under the said recited Act respectively, shall, from and immediately ;iftoi' the opening of the said courts respectively insti- tuted under this Act, be delivered over and deposited lor safe custody in such of the said courts respectively instituted under this Act as shall be fovmd most con- venient, and all parties concerned shall and may have recourse to the said records and proceedings, as to any other records and proceedings of the said courts respec- tively. 22. Aiul be it further enacted, That courts of S"uui°I.Mvto"r "cnoral and (luarter sessions shall be holden at New- sessions shiiii foundland and its dependencies at such times and places timusand us the Governor or Acting Governor of Newfoimdland\u!s^„Zrs\vM shall 1)v his i)roclamation appoint: and the said courts''^'".'"" i)f session respectively shall have power and authority, ill a summary way, to take cognizance of all suits for the payment of debts not exceeding forty shillings, I'xcept the matter in dispute shall relate to the title to any lands or tenements, or to the taking or demanding of any fee of office or annual rent, and to award costs tiicrein ; and also to hear and determine all disputes, to ;uiy amount, which may arise in Newfoundland con- cerning tlie wages of seamen or fishermen, the supply of halt, tile hiring of boats for the fishery, and all dis- putes arising in Netofoundland aforesaid concerning the cming or drying of fish, where the sum or matter in question does not exceed or is not of the value of more than five pounds sterling ; and the judgiiK^nt, deter- mination, or award of the said courts of sessions or justices respectively, in all such cases, shall be final. 23. And whereas it is expedient to make provision Proceedings in tor declaring insolvencies in Newfoundland ; be it fur- solvency. s 2m. s s i1 r ii i V'^' it J \ , t ' 1 1 I • ! 11 'I l< HB IIHiliilHiil P l^^mw ilii^Bo'l ^ ' '' ilf'V'' 'if 1 1 1 wfP'S ^'^^' ^ ^1 Hi i'j 'M h\v • 11 i i ' ''' 1^ i^ i ' ■ n W : '1 'l|j| ' 1 ;i it ]r: ' : n M i ' ' mI ll uH 1 H 11 ' ffl ii mil 1 n' ' llu ' ' m ll a^^^^H V W ' ' 1 IH^^^H i ' 'h- ' ^ 1 Himn 'V' >j1i]!iIR 11 lilyilllljl lillllil '■ 'iMIIiiiil ^ 'ilil i iUlilllit , 'i'l 1 j, , . llllllBaSsKl 1 ' III lIlillilHli 1 1 1 iiillilllnii ni llllliilililllii i iliillllllllliil 1 1 iilllilllliiliii ! Milllillt ^■■^■HI>1SI.IM IIIHIIiiiiiii 1 1 < ' iiiniiiiiiiiii 1 ^ ^ illllnllllllliii 1 ! I|||||i|]|ji||||| lillliiiliilllii ;; j| ; IlilllllllP ' ' ' ' '' lliilliiiflliili I IllllalnilallsS f 1 jl 'lllll 1 : [III ; ! njm]!: ! 'l' -W-^ ' v|im||ili| t '^ }'j j 'll.lf jtflll^ll'lllf 1 '*-' *' ;■ '■ i ■ ■ . ;'jf'' !■'■■■•■«¥■' ' ii : ' [ 11 lii lUSIfll S 1 ' ''V' ll t Jliiiilll \ ii'j jl i IJljjjjWfn"?^" II |! i ijirj' IIIIJIIIJ III : |j!:ji jlllll ' M 'i' "1 flllll ^ 11^ li ■^1 - ' i 1 ! 1 ^>'iiil nf ^fill iJi' ll iil^^M' Ml' ^ rlr Mill ' %T ' Jlslmi irai uJ'Mi^si i i ■«' iMin^^^ni |p| , ^ {!|j|IS 1 {|i| jil iHMi mXu ' tiiiillflil ll^i 13 '^^^Bl; ^m llll jl|i(f{ II' If II' ll jffirf . Pit irnfli li* jfl Ifl' li m iM|^M')i li' ll li 1' B nmUnHlll li i if 1 lilHi 1 ]' iM 642 5 GEO. 4. c. 67.— NEWFOUNDLD. INSOLVENTS. [I824 thcr enacted, Tluit as often as any writ of altaclunciit or other process for the recovery of any debt or sum due, sliall be issued by the said Supreme or Circuit Courts respectively, against any person or persons re- siding or having a house of trade, or carrvin" on business in Newfmmdlmid, or any place Avitliiu tho government thereof, and it shall be made to appear to the said court out of which such writ or process sliall have issued, at the return thereof, that the person or persons against whom such writ or process liath issued is or are unable to pay twenty shillings in the pound to all his, her, or their creditors, it shall be lawful for such court to cause the person or persons against whom such process shall have issued, together with all his, her, or their creditors, to be summoned by public notice to attend the said court on a certain day, and in the meantime, if it shall appear necessary to th(» said court, to appoint one or more of the said creditors as provi- sional trustee or trustees, to discover, collect, and receive the estates and effects of such person or persons so appearing to be insolvent, subject to the oiders ai\d directions of the said court ; and if after due examinii- tion of the person or persons against whom process shall have issued as aforesaid, or his, her, or their lawful agent or agents, or if such person or persons shall abscond, or fail to attend the said court pursuant to summons as aforesaid, it shall be made to appear to the satisfaction of the said court, that such person or persons is or are insolvent, it shall be lawful for the siiid court to declare such person or persons insolvent accord- ingly, and immediately to take order for discovering, collecting, and selling the estates, debts, and effects of such insolvent, and distributing the produce thereof amongst all his, her, or their creditors, and for that purpose to authorize any two or more creditors of the said insolvent or insolvents, who shall be chosen by the major part in value of such creditors, as their agents duly authorized in such behalf, whose debts amount respectively to the sum of twenty pounds and upwards, ■ ;■ 1824,] 5 GEO. 4. c. 07.— COMPOUNDING. 643 to act as trustpcs of such insolvent estate ; and such court shall from time to time make such orders as it shall deem proper, for better discovering, collecting, realising, and distributing the estates, debts, and eifects of the person or persons so declared insolvent, and, as often as occasion shall require, for vesting the same, or any part thereof, in the public funds or securiti(;s in England, in the name or names of such person or persons as shall for that purpose bo appointed by the said court, until distribution can be made, as hereafter mentioned. ,M\ 24. And be it further enacted. That if such insolvent insolvents, on person or persons shall make a full and true disclosure, dosuro ' '*K« i 1 II' 1, i llt Ml; 1 4 ' ' 1 1 ini - 1 1 1 li ii ' > ' 1 ' i N 1 ^ li i' R ' ■ ' H 1 i.i K \' H r ■ • \ ' i ■■ 5 1 '■' ■ : I'l : ! 1, 1 ; 1 1 ' ■J- ] 1 f ' ■ . . ■ ! I ft. ■ n ; ■ !' ■ ' ■ '. i: ^' li: li' ■!: i 1 ,' 1 ■ ' ■ 1 'W \ I \ ■■ ' ■ ■ i '■ ■; 'Ini M /f i i I ■ ; ' ''-] J 1 ■ I I '. ' \ '■ • ;i ■ ' 1 ■!• i • [ I; i ■ 1^ T I " , i ' 1 1 i \: -.vi ' ; i ■ i . -/ • •!' 'i! 1 ' 's ■ i: '•':: 1 \-'.> ; 1 1 ■ 1 ■ ' ' ■ I :j 1 ■ 1 ■ ^ '11 ;-■ '1 lii 1 ■■ 11 i.; ■ i ' i ,j j ' '■ . i ! '^ . ' : ■ 1] ; i ■ ■ 1 ' i i j'. ¥.■■'. ; ■ m \ ' ' ] i i^ ■' ■ i ii IP , \ 1 || '■ i! 11 , ,; i j . ' ' ,- ■ ^ \ •; ^i k ;''!■ ■ ' j' ! ■ 'i i ( ! ■ ' i i-i ,i : \ if : : i :.; .;' i ■ 1 '^ 1' In '^ 1 I if; ill, 1 i ^ 3 ^ i il '- h ■ ;! il il ' '1 : ■ 1 ' ■i'l i ■: i' :' ' ■' ' 1;' il ' i |. J) 1 j- ; ; ;. . 1 ■. \. ': '■( ■■' III ^1 1 -t 1 ■■ ' 1 ! 1 ;: M ' ■Ml 1 1 1 Hn i 1 ^ ml ' 1' i' ! ra * ■1 ''H 1 i 8*' ' ' Il i ' ffii m i: i'H 1 K^^HHHn IBll'^liiJ i|h| 1 i ■ ^^^■^■M^^hIjjI B i ^^hI fl 646 5 GEO. 4. c. 07.— VERIB'ICATION OF DEEDS. [ih24. may he hereafter granted, conveyed, devised, mortgaged, . charged, or otherAvise atfected or intended so to be, shall be registered at the office of registration Avithin the district or circuit in which such lands may be situate ; and that all such deeds, conveyances, and otlior assur- ances as aforesaid, shall be left for registration at such office within six months next after the execution thereof, by the party or parties from Avhom any interest mav pass, in case such party or parties may, at the time of such execution thereof by him, her, or them, be resident within the said colony or its dependencies, or within twelve months in case such party or parties may at that time be resident elscAvhere ; and all such wills as afore- said shall be left for registration at such office twelve months next after the death of the testator or testatrix, How deeds 29. And be it further enacted, That some or one of snau l)e veri- . , i i i fled before the the parties executiiig any such deed, conveyance, or other registrar. assuraucc as aforesaid, shall appear before the registrar of deeds, and acknowledge the execution thereof hy them, him, or her, or in case none of the parties to any such deed, conveyance, or assurance shall be resident in the said colony, then the same shall be acknowledged before the said registrar of deeds, by some person duly ajipointed for that purpose as the attorney of such par- ties ; and in that case the execution of every such deed, conveyance, or other assurance shall be further verified by an affidavit to be sworn before the mayor or other principal magistrate of any city, town, or place in or near to which such parties respectively may be resident; and such aflB davit shall also be preserved and registered at the office of the said registrar of deeds. Registrar to indorse on the deed n cer- tificate of registry. 30. And be it further enacted. That the registrar of deeds shall and he is hereby required to indorse and subscribe, on every such deed, conveyance, or other as- surance, a certificate, in which shall be expressed the day or time when the same was so acknowledged before him, and the names of the person or persons by whom 1824.] 5 GEO. 4. c. 67.— REGISTRATION OF DEEDS. 647 such acknowledgment was made, and the time when the same was actually registered, and the volume and page in which the registry thereof is entered ; and every such certificate so indorsed or suhsci^ibed shall be taken and allowed as evidence of the due registration of any such deed, conveyance, or assurance. 31. And be it further enacted, That the registrar Registrar to . . ° . enter in the of deeds shall and he is hereby required to enter in a bookofrogis- lwokof registry, to be by him regularly kept for that SheS""" purpose, a memorial of every deed, conveyance, or as- f,efo"rSmf'' surance which shall be so acknowledged before . him ; and every such memorial shall contain a statement of the year and day of the month on which such deed, con- veyance, or assurance shall bear date, the names and ad- ditions of all and every the parties, as well as the names and additions, if any, of the several subscribing witnesses thereto, the descriptions at length of the lands or tene- ments conveyed or intended to be conveyed, charged, or affected by such deed, conveyance, or assurance, as the same are therein described, and the consideration of every such deed, conveyance, or assurance, as the same mav he therein stated ; all which memorials shall be entered and recorded in the said book of registry with all convenient dispatch, in the order of time in which the same may have been acknowledged before the said registrar, 32. And be it further enacted. That every deed, con- Deeds hereafter veyance, or assurance hereafter to be made, whereby conveying ' any lands or tenements situate in Newfoundland, or the no" duly' dependencies thereof, shall be granted, conveyed, re- deciami'void. leased, charged, or incumbered, or intended so to be, \^hich shall not be registered within the time and in the manner herein-before mentioned, shall be absolutely null and void to all intents and purposes : Provided always, that every such deed, conveyance, or assurance shall be deemed and taken to be a registered deed, con- veyance, or assurance within the meaning of this Act, i 1 ■ ' ■ 1 :| 1 * 1 '' ' i ■ i , 1 ' lu 1 848 5 GEO. 4. c. 07.— CHARTERS FOR TOW^JS. [1824 I I I I I from the time when the execution thereof shall bo acknowledged in manner aforesaid, heforo such rogistrav of deeds as aforesaid. auThoHze.f't'r 33. And be it furthei- enacted, That the iudgcs of make rules thc Siipremc Court of Newfoundland shall he and th(«v mill orders for , j i • i i i the repistry of are hereby authorized to make any general rulo.s and oc(s, &c. orders of court for maintaining order and v(>gulavitv in the mode of taking snch acknowled*^ moiits, and registering such deeds, wills, conveyances, and other assurances as aforesaid, and for executing thc duties of said office of registrar of deeds; provided that such rules and orders be not in anywise repugnant to the provisions of this present Act in that behalf. OoNTrnormay 3^ ^j^^j whcrcas the lusticcs of the peace in Nmr. iiiuices for the foundlctnd liavc been used to grant licenses for the licenses for retail of ale and spirituous liquors, and it is proper to lie amrspirits, Tcgulate tlic sunis to bc demanded upon such liccn.ses, ami as to the ^^-^^ ^^^ make provisiou for the appropriation thereof, and sums to bo -i 111 ' paid and the for preventing abuses in the granting of such licenses, and in the sale of spirits by unlicensed persons in thc said colony ; be it therefore enacted, That it shall and may be lawful for the Governor or Acting Governor of Newfoundland to make, establish, and ordain such rules and ordinances as to him may seem meet, respecting the granting of such licenses, and the recalling the same, and the amount of the sums to be demanded and taken for every such license, and the appropriation of such sums to His Majesty's service in the said colony, and for preventing the retail of ale and spirituous liquors by persons not duly licensed, and to impose such pecuniary fines or other penalties as may be necessary for en- forcing obedience to any such rules or ordinances as aforesaid. m^f^l^ 35. And be it further enacted. That it shaU and charters for may bc lawful for His Maiestv, by charter or letters establishing "^ . J J' J -i - I, corporations patent uudcr the great seal, to constitute and erect sucn ment o'f town" pcrsous as to His Majcsty shall seem meet a body or 1H24.] .'. r.EO. 4. c. 67.— REGULATION OF POLICE. 619 bodies corporate and politic, lor tlio govoriimoiit of any town or towns situato Avitbin the said colony of New- foundlcnd or its dependencies, and to <^rant to such bodv or bodies politic and corporate, power to make l)ve-lfuvs for regulating the police of any such town or towns, and for the prevention or abatement of nui.sances therein, and for the pr(;vention of accidents by tin; ; and also to grant to any such body or bodies politic and coi'jjoratc as aforesaid, the jjower to impose and levy .such reasonable and moderate rates and assessments upon the inhabitants and householders in such town or towns, as may be necessary lor carrying into effect the several i)urposes aforesaid, or any of them ; and it shall also 1)0 lawful for His Majesty, his heirs and successors, by any order or orders to be made by or with the advic(5 of his or their Privy Council, to dis.solve any such cor- poration or corporations as aforesaid, upon and subj(!ct to such conditions and regulations as may be made in and by any such order or orders in that behalf. 36. And be it further enacted, That this Act shall ^'j of continue and be in force for live years from the passing thereof, and no longer. 5 GEO. 4. c. 68. Was an Act passed to repeal the 57 Geo. 3. c. 51., rpQ;ulating the celebration of marriages in Newfound- land, and making further provision for the celebration of marriages therein. This Act Avas continued by 2 & 3 Will. 4. (1832) c. 78, until repealed, &c. by the Government of Newfoundland [see post, p. 654, and C. S. Newfoundland (1872) c. 105]. Now S. L. R. (1873), 36 &37 Vict. c. 91. repeals 6 Geo. 4. c. 68. sec. 1 to word " repealed," and sec. 2 to end of the Act. lltlllllMIII'C AH. 6 GEO. 4. (1825) c. 59. Sec. 9. Prom " and so much " to the end of that sec- tion repealed by S. L. R. (1874), 37 & 38 Vict. c. 35. 1 '■r im\ mm i ; 050 OEO. 4. V. 30.— FEUDALITY & EXTINCTION, [ih25 [See ante, 49 Crco. JJ. c. 27. J Tho whol(> A( 1 r('i)(>alo{l except sec. i), l).v 8. L. U. (1888, No. 2), 51 & 52 Vict! c. 57. This was "An Act to provide for the oxdnctioii of feudal and scignioml rights and hardens on lany or consideration, and upon such terms and conditions, as to His Majesty, or to such Governor, &c. shall appear expedient ; and thereupon to release the person, &c. so ajjplying, his, &c., heirs and assigns, and all and every the lands comjjrised in such fief or seigniory from the said droit de quint, droit do relief, and all other feudal hurdens due or to grow due thereupon to His Majesty, &c., and cause a fresh grant to he made to the person, &c. so applying of all such parts and ])arcels of such fief or seigniory as shall as aforesaid remain and he in his, &c. possession ungrantod, and Avhich shall not he held k titre de fief, in arriere fief, as aforesaid, or a titre de cens, to he hence- forth holden in free and common socage {see sec. IS of 31 Geo. 3. c. 31.) in like manner as lands are noAV holden in free and common socage in England, without it lieing necessary for the validity of such grant that any allotment or appropriation of lands for the sup- port, &c. of a Protestant clergy should he therein made. Sec. 2 provided that where such fresh grant was made nothing was to take away the feudal, seigniory rights, and other rights, of the seignior or person in whose favour such grants shall he made upon or in respect of all lands held of him a titre de cens, &c., until a com- mutation release or extinguishment thereof shall have been ohtained in the manner herein-after mentioned. By sec. 8, persons holding lands in fief and obtaining a commutation were bound to grant like commutation to those holding under them, for such price or indemnity as should he fixed by experts. Py sec. 4 this latter right might be enforced in a court of law. By sec. 5, commutation having been voluntarily agreed upou or awarded by a court of law, all feudal rights \ I %'\ ijll i! I ! 11 \, llMf \V 652 « GEO. 4. c. 59.- COMMON SOCAGE. [1825. and hurdens to cease upon lands for which tho same shall have heen agreed upon or granted, and the tenurp of the lands thenceforth be converted into free and common soaige. By sec. 6, nothing in the Act was to he a discharge of arrears, or deprive the seignior to Avhom such arrears, lods et ventes, or Eights, shall bo due, of his right to recover the same. By sec. 7, persons applying for commutation or oxtin- guishment of feudal rights in resjjcct of lauds hold of the Crown, or as an arriere fief, puhlic advertisement for three months in the Quebec Gazette and two other news- papers published in Montreal and Quebec resj)octivcly, giving notice to mortgagees and other incumbrancers, whose consent, if any, must be shown. By sec. 8 it was enacted that all lands previously granted by His Majesty, &c., or which might hereafter be so granted by the same, in free and common socage, may and shall be by such grantees, their heirs and assigns, held, sold, and con- veyed, &c., and may pass by descent, under such rules and restrictions as are by the lawof JiV/^/ftwr/estahlished and in force Avith reference to the grant, sale, conveyance, and descent of lands held by the like tenure therein situate, or to the doAver or other rights of married AA'omen in such lands, and not otherwise. Provided no- tiling Avas to prevent His Majesty, with the advice, kc. of the Legislative Council and Assembly of the province of Lower Canada, from enacting any laws for tho lietter adapting the rules of the law of Eriyland to the local circujnstiinces and condition of the said province. [For sec. 9 see ante, p. 596, 49 Geo. 3. c. 27.] By sec. 10, courts of escheat might be established in Loioer Catiada to try forfeitures of uncultivated lands, and new grants of escheated lands made. By sec. 11, notice of inquiry as to escheat was to be advertised, Parties interested to appear, and judgment of the court was to be final. By sec. 12, parts of the clergy rcserAes necessary for securing and quieting the title of any person to lands claimed by occupancy, lawful prescrip- tiou, or by doubtful titles, or convenient for the carry- TTWI IH27.] 7 & 8 GEO. 4. c. 62.— CIVIL GOV. CHARGES. 653 intr on of any pu])lic Iniilding or works, or for more effectual settlement of any district, it was lawful for the Bishop of Quebec, on behalf of the Protestant clergy, and on requisition of the Governor, &c., by deed, to convey the l^-nds comprised in such requisition in exchange for other lands situated in the province. 6 GEO. 4. (1825) c. 75. This Act established the Canada Company for, among other tilings, clearing and cultivating the " Cro>vn reserves" and parts of the " clergy reserves." This Act Avas amended by 9 Geo. 4. (1828) c. 51., and bv 19 & 20 Vict. (1856) c. 23. granted additional powers to the Company, with the power of Avinding up by special resolutions. 7 & 8 GEO. 1. (1827) c. 62. See 3 & t Vict. c. 78. and 16 & 17 Vict. c. 21., post, repealed 1)y S. L. E. Act, 1874, 37 & 38 Vict. c. 35. This Act recited 31 Geo. 3. c. 31. [seei^cQ. 36 of that Act, (tnte\ and then goes on to give the Governor, &c. of the said provinces, or either of them, w^ith the consent of the Executive Council, power to sell and convey in fee simple, or for any less estate, a part of the said clergy reserves in each of the provinces, not exceeding in either province one-fourth, the quantity to be sold in one year not to exceed 100,000 acres, and the money received for this land was to be handed over to His Majesty's reveiuie, to be invested in the public funds of the United Kingdom and Ireland. Provided also that the dividends ai'ising from such funds so purchased should he applied for the improv(!ment of the remain- mg part of the clergy reserves, or otherwise, for the purposes for which the said lands were so reserved as aforesaid, and for no other purpose whatsoever except the expenses of sale. By clause 2, the Governor may grant or accept lands in exchange for clergy reserve lands, [^See above, 6 Geo. 4. c. 59. s. 2.] :' ' ■ ■. ; a !•! '\\ 654 1 VICT. c. 9.— SUSPENSION OF GOV. [1S37. 1 & 2 Will, k (1831) c. 23. (Civil Govornmont Charges). This Act was repealed by 3 & i Vict. c. 35 It was an Act amending 14 Geo. 3. c. 88., and "■ivm power to the provinces of Tipper and Lower Canada bv any Acts passed for that purpose to appropriate, in sucii manner and to such purposes as to them ro.spectivelv appeared meet, the moneys produced from the dutios raised under 14 Geo. 3. c. 88. s. 1., except .so favastlio charges of raising and collecting the same. 2 & 3 WILL. 4. (1832) c. 78. Sec. 2 was repealed by S. L. R. Act (187 1), 37 & 38 Vict. c. 35. The Act continued in force 5 Geo. 4. c. 67., and 5 Geo. 4. c. 68., until the same shall he repealed, altcml, or amended, hy any Act or Acts M'hich may for that purpose be made by His Majesty, with the advice and consent of any house or houses of General Assembly of Newfoundland. \_See nowC. S. Newfoundland (1872) c. 105.] By sec. 2, all duties levied within the colony were to be appropriated in such manner as His Majesty, with the advice and consent of the House of General As- sembly, should direct. But of these duties an annual sum not (exceeding £6,550 was to be set apart for tho maintenance of the Governor, the Judges, Attorney. Geiun-al, and Colonial Secretary. 1 VICT. (1837) c. 9. Repealed by 3 & 4 Vict. c. 35. s. 2. .An Act to make temporary Provision for the Government of Lower Canada. [10 Fel>. 1838. WHEREAS in the present state of the province of Lower Canada the House of Assembly of the said province, constituted under the Act passed in the thirty.first year of His Majesty King George the Third, i\ 1837.] 1 VICT. c. 9 —SPECIAL COUNCIL. 655 intituled, an Act to repeal certain parts of an Act passed s' Geo. 3. ill the fourteenth year of His Majesty's reign, intituled, " An Act for making more effectual provision for the Government of the Province of Quebec m North America,''* and to make further provision for the government of the said province, cannot be called together without serious detriment to the interests of the said province, by reason whereof the government of the said province cannot be (lulv administered according to the provisions of the said Act: And Avhereas it is expedient to make tem- jwrary provision for the government of Lower Canada, in order that Parliament may be enabled, after mature (lelil)eration, to make permanent arrangements for the constitution and government of the said province, upon such a basis as may best secure the rights and liberties and promote the interests of all classes of Her Majesty's sulyjects in the said province : Be it therefore enacted l)y the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Tem- poral, and Commons, in this present Parliament assem- bled, and by the authority of the same, That from the The powers of proclamation of this Act in the said province as herein- Logmioture of after provided, until the first day of November in the J;,"^nS'^'' year one thousand eight hundred and forty, so much of the said Act of the thirty-first year of King George the Third, and of any other Act or Acts of Parliament, as constitutes or provides for the constitution or CfiUing of a Legislative Council or Legislative Assembly for the province of Lower Canada, or as confers any powers or functions upon the said Legislative Council and Legis- lative Assembly, or either of those bodies, shall cease and 1)6 of no force. 2. And 1)0 it enacted, That it shall be laAvful for Her Her Mujesty Majesty, by any commission or commissions to be from "peciaUoinci'i time to time issued under the great seal of the United o^l^w*^'" Kingdom, or by any instructions under Her Majesty's Canada. signet and sign manual, and with the advice of her Privy Council, to constitute a special council for the I ': 1 1 ' ,1 i i 1 i k . ■ i ^1 i iiii. 056 1 VTCT. c. n.-SANOTION OF LAWS. [1837. ^[t'llllK'l'S 111' till' comicil to tllko III! until. afl'airsof Lower Cat/ruht, and for tliat purpose toaijijoint or autlioriijo the (Jovornor of tlio province of Loircr Canada to appoint such and so many s])('cial coimcillois as to Ilor Majesty shall sooin nioct, and to make .sucli provision as to Hor Majesty shall soem meet loi- the ronioval, suspcMision, or rcsij^'nation of all or any such councillors : Provided always, that no meinher of the said special council sliall he i)ermitted to sit or Jo vote therein until h(» shall have laken aiul suhscrilxMl Ijol'oir the (Jovernor of the ])r<)vinc(^ of Lower iUiiimUi, or hefore scmie p«M'son authorized hy the said Governor to administer such oath, the sani(> oath which is now re- quired to he taken hy the uKMuhers of the Lei;islativ(> Council and Assomhly hefore sitting or voting' therein respectively. 3. And he it enacted, That from and after such pro- clamation as aforesaid, and until the said tirst day of Novemher in the year one thou.sand eight hunth'cd and forty, it shall he lawful for (!ie Governor of the province of Lower Canada, with tlie advice and consent of the majority of the said council h)rs present at a nuH'lini,' or meetings to he for that purpose from time to time; con- vened hy the Governor of the said province, to make such laws or ordinances for the peace, welfare^ and j^ood governnient of the said province of Lower Caiunla a.s the legislature of 7yO/o^'r Canada as now consli(ut(>(l is empowered to niake ; and that all hiws or oi'diuances so made, suhject to the provisions herein-after contained for disallowance thereof hy Her Majesty, shall Innc the like force and elfect as law s passcxl hefon? the ])assiii|jr of this Act hy the Legislativ*' Council and Assembly of the said province of Loirer Camula, and assented to hy Her Maiestv, or in Her Maiestv's name hv the Governor Such laws to of tjie said province: Provided always, that mo sucii be proposal by ^ * ,. the Governor, law or Ordinance shall ho made unless the same shall have been first proposed hy the said Governor for adoii- tion hv the council, nor unless the said Governor and five at least of the said cimncillors shall he actually Tho Oovt'vimr anil I'niiiu'il may iii.iki' laws in- ofiii- iiaiu'i's tor till' gOVl'I'llMll'llI (if Lowoi' t'.iiiaila. im.] I VIOT. c. f> — ALTERTNO LAWS nroscnt whon such law or ordinanco shall ho mado : Provided also, that no laAV or ordinanco so mado shall i'i'"it.ii'B their continue in force h(;yond tlu; first day of Novonilxn" in the year ono thousand oight hundnnl and 1'orty-two, unless continued hy comp(;tont authority: Provided r'""^'^"')'* '" also, that it shall not he lawful hy any such law or laxus. ordinance to iniposcj any tax, duty, rat(5, or impost save only in so far as any Uix, duty, rat(;, or impost, which at tlu5 passinj^ of this Act is payahlo within the 'inid in'ovinco mav l)(^ thorohv continuod : Provided also, Ijiwh or ordi- "^ " niiiiecis not to that it shall not l)o lawful, hy any sucli law or ordmance, affect the to alter in any rosp(;ct the; laAV now existing in the said rcsnoct'fng^'' [U'ovince r(\s])octinjj the constitution or compositii J ri'oliiliiting passed in tlie last session oi Parliament as provides that taxation; but it shall not be lawful, by any such law or ordinance as ^ ievld'cxcept therein mentioned, to impose any tax, duty, rate, or im- ^^j.^"|^',JJj post, save only in so far as any tax, duty, rate, or impost "'jfC'; of , . , , . 1. ji.r 11 'ji'ji municipal which at the passing oi tjiat Act Mas payable withm the government said province of Loiver Canada might be continued, "ot t*" be ap-^^ shall be and the same is hereby repealed : Provided ^"^Xnment^ always, that it shall not be lawful for the said Governor, with such advice and consent as aforesaid, to make any law or ordinance imposing or authorizing the imposition of any new tax, duty, rate, or impost, except for carry- ing into effect local improvements within the said pro- vince of Loicer Canada, or any district or other local division thereof, or for the establishment or mainten- ance of police, or other objects of municipal govern- ment, within any city or town or district or other local division of the said province: Provided also, that in every law or ordinance imposing or authorizing the im- position of any such new tax, duty, rate, or impost, provision shall be made for the levying, receipt, and appropriation thereof by such person or jiersons as shall be thereby appointed or designated for that purpose, hut that no such new tax, rate, duty, or impost shall be levied by or made payable to the Receiver-General or any other pubhc officer employed in the receipt of Her Majesty's ordinary revenue in the said province; nor shall any such law or ordinance as aforesaid provide for '■ ■ '', < : I- ;l ' 1 li i I! . V 1 J ■ ■ 1 yi* { i. if ■ 1 H H i B H , '■ ~ "' A 1 mi Is ■I %i H ' ' ' ' 1! H ' ■'] i i 1 H ! : n ' i ii V y ' ■ il 1 B lilljiitl L. yi 1 H 662 2 & 3 VICT. c. 35.— REPEALING BRIT. ACTS. [iH3n. the appropriation of any such new tax, duty, rate, or impost by the said Governor, either witli or without the advice of the Executive Council of the said province or by the Commissioners of Her Majesty's Treasury, or by any other officer of the Crown employed in the receipt of Her Majesty's ordinary revenue. or the law of tenure Repeal of th« 4 x^([ |3e it enacted, That from and after the pa«. provision of 1 ^ 1 & 2 Vict. c. 9. ing of this Act so much of the said recited Act passed aitemtion of '^ iu tlic last scssiou of Parliament as provides that it shall mentf biTno ^^^ ^^6 lawful for any such law or ordinance as tlierciii afficti'n'"'thr^" mentioned to repeal, suspend, or alter any provision of temporal or any Act of the Parliament of Great Britain, or of tlio of ecclesiastics Parliament of the United Kingdom, or of any Act of the Legislature of Lower Canada, as then constituted, repealing or altering any such Act of Parliament, shall be and the same is hereby repealed : Provided always, that it shall not be lawful for the said Governor, with such advice and consent as aforesaid, to make any law or ordinance altering or affecting the temporal or spi- ritual rights of the clergy of the United Church of England and Ireland, or of the ministers of any other religious communion, or altering or affecting the tenure of land within the said province of Lower Canada, or any part thereof, save so far as the tenure of land may be altered or aflFected by any law or ordinance which may be made by the said Governor, with such advice and consent as aforesaid, to provide for the extinction of any seignorial rights and dues now vested in or claimed by the ecclesiastics of the seminary of Saint Sulpice of Montreal within the said province, or to provide for the extinction of any seignorial rights and dues vested in or claimed by any other person or persons, or body or bodies corporate or politic, within the island of llontml, or the island called lie Jems, within the said province, ij bfpuktshed in ^' -^^^ ^^ ^* enacted, That every law or ordinance to Gazette be- he madc by the said Governor, with such advice and consent as aforesaid, shall, before the passing or enact- fore passing. 1840] 3 & 4 VICT. c. 36.— RIGHTS AND LIBERTIES. 663 ment thereof, bo published at length in the public Gazette of the said province of Lower Canada. 6. And be it enacted, That for the purposes of this f£"|J.^^i;'" °'' Act the person authorized to execute the commission of Ooveinor. Governor of the province of Lower Canada shall be taken to be the Governor thereof. 7. ^\jul be it enacted, That this Act may be amended '^^' '""y ''« '• ' *' amended. or repealed by any Act to be passed during the present session of Parliament. 3 & 1 VICT. (1840) c. 35. Repealed, except sees. 28, 29, 60, by ^ L. R. No. 2 (1874), 37 & 38 Vict. c. 96. The preamble and sec. 60 to the words " enacted that " repealed by S. L. R. No. 2, Part 2 (1890), 53 & 54 Vict. c. 51. See two previous Acts, and 17 & 18 Vict. (1854) c. 118. An Act to re-unite the Provinces of Upper and Lower Canada, and for the Government of Canada. [23 Jidy 1840.] WHEREAS it is necessary that provision be made for the good government of the provinces of Tipper Canada and Lower Canada, in such manner as may secure the rights and liberties and promote the interests of all classes of Her Majesty's subjects within the same : x\.nd whereas to this end it is expedient that the said provinces be re-united and form one province for the purposes of executive government and legislation : Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parhament assembled, and by the authority of the same, That it shall be lawful for Her Majesty, }5^'>™*'°" "' with the advice of her Privy Council, to declare, or to authorize the Governor-General of the said two pro- vinces of Upper and Lower Canada to declare, by pro- clamation, that the said provinces, upon, from, and after 1- !'! Ml '« mM- i ■ 'I 661 3 & 4 VICT. c. 36.— AVELFARE AND GOOD GOV. [Ir 10. 4\\' (IH '■\\ . s n a certain clay in such proclamation to ho appointed which (lay shall he within lil'teen calendar mouths uoxt after the passing of this Act, shall foi-m and he uuo pio. vince, under the name of the province of Coiunlu, and thenceforth the said provinces shall constitute and h one province, under the name aforesaid, upon, i'lom and after the day so appointed as aforesaid. Repeal of Acts. 2. And bo it cnactcd, That so much of an Act passed in the; session of Parliament held in the thirty-first year 3i^Geo. 3. Qf ^Ijp reign of King George the Third, intituled "An Act to repeal certain Parts of an Act passed in the Fourteenth Year of His Majesty's Eeign, intituled 'An Act for making more effectual Provision for theCovein- ment of the Province of Quebec in North Amci-im,' and to malce further Provision for the Government of tlie said Province," as provides for constituting and compos- ing a L(^gislative Council and Assembly within each of the said provinces resi)ectivcly, and for the making of laus; and also the whole of an Act j)asscd in the session of Parlia- ment held in the first and second years of the reign of Her i&2Viet.c. 0. pre.sent Majesty, intituled " An Act to make temporary Provision for the Government of Lower Canada ; " and also the whole of an Act passed in the session of Parlia- ment held in the second and third years of the reign of Her present Majesty, intituled " An Act to amend an Act of the last session of Parliament, for making temporary Provision for the Government of Lower Canada " ; and also the whole of an Act passed in the session of Parlia- ment held in the first and second years of the reign of His late Majesty King William the Fourth, intituled " An Act to amend an Act of the Fourteenth Year of His Majesty King George the Third, for establishing a Fund towards defraying the Charges of the Administra- tion of Justice and the Support of Civil Government in the Province of Quebec in America,''^ shall continue and remain in force until the day on which it shall be de- clared, by proclamation as aforesaid, that the said two provinces shall constitute and be one province as afore- 2 & 3 Vii't. c. 53. 1 & 2 Will. 4. c. 23. U Geo. 3. c. 88. r: 1 islativ(> Council of the said province such persons, Ijciut^ not feAver than twenty, as ITer Majesty shall think fit- and that it shall also he lawful for Her Maji^sty from time to time to authorize the Governor in like niannor to summon to the said Lej^islative Council such other person or persons as Her Majesty shall think tit, and that evory person who shall he so summoned shall tlierehy hecome a niemher of the Lei^islative Council of the province of Canada : Provided always, that no person shall he siunmoned to the said Legislative Coun- cil of the i)rovince of Canada Avho shall not he of the full age of twenty-one years, and a natural-born sii])ject of Her ^lajesty, or a subject of Hcu- Majesty naturalized hy Act of the Parliament of Great Jirilain, or hy Act of the Parliament of the United Kingdom of Great Britain and Ireland, or by an Act of the Lesris- lature of either of the provinces of Upper or Lower Canada, or by an Act of the Legislature of the pro- vince of Canada. 5. -Ind be it enacted, That every member of tbo Legislative Council of the province of Canada shall hold his seat therein for the term of his life, but subject nevertheless to the provisions herein-after contained lor vacating the same. 6. And be it enacted. That it shall be lawfiU for any member of the Legislative Council of the province of Canada to resign his seat in the said Legislative Viicatiiip scut by absence. Council, and ui)on such resignation the seat of sucli Legislative Councillor shall become vacant. 7. And be it enacted, That if any Legislative Coun- cillor of the province of Canada shall for two successive sessions of the Legislature of the said province fail tn give his attendance in the said Legislative Council, without the permission of Her Majesty or of the Governor of the said province, signified by the said Governor to the Legislative Council, or shall take any Umi itiiiil I n im 1S40.] 3 & 4 VICT. e. 3.5.— APPEALS AS TO SEATS. 667 oath or make any declaration or acknowledgment of allegiance, obedience, or adherence to any foreign prince or power, or shall do, concur in, or adopt any act Avhcrel)y he may become a subject or citizen of any foreign stat(; or power, or whereby he may become entitled to the rightt;, privileges, or immunities of a subject or citizen of any foreign state or power, or shall become bankrupt, or take the beneiit of any law relating to insolvent debtors, or become a public defaulter, or be attainted of treason, or be convicted of felony or of any infamous crime, his seat in such Council shall thereby become vacant. 8. And be it enacted. That any question which shall I'l-''! "« ... . qiioiiiiMs. arise respecting any vacancy in the Legislative Council of the province of Canada, on occasion of any of the matters aforesaid, shall be; referred by the Clovernor of the province of Canada to the said Legislative Council, to be by the said Legislative Council heard and deter- inined : Provided always, that it shall be lawful, either for the person respecting whose seat such question shall have arisen, or for Her Majesty's Attorney -General for the said province on Her IVIajesty's behalf, to appeal from the determination of the said Council in such case to Her Majesty, and that the judgment of Her Majesty given with the advice of Her Privy Coiuicil thereon shall be final and conclusive to all intents and purjjoses. 9. And b(? it eimcted. That the Governor of the App..inimf.nt province of Canada shall have jwwer and authority from time to time, by an instrument imder the great seal of the said province, tc appoint one membc^r of the sjiid Legislative Council to be Speaker of the said Legis- lative Council, and to remove him, and appoint another in his stead. 10. And be it enacted. That the presence of at least Q'^um. ten members of the said Legislative Council, including the Speaker, shall be necessary to constitute a meeting lor the exorcise of its powers ; and that all questions Division. ^, u ? I 1:1 m' h'\ "'! ►I J r ! 668 3 A 4 VICT. c. 33.— CALLING ASSEMBLY. [1H40. Casting vote. Con VI iking the Assembly. Reprc.H'ntntives for fiich pro- vince. County of Hiiltou. County of Northumber- which shall aviso in the said Legislative Council shall be decided by a majority of voices of the members present other than the Speaker, and when the voices shall be equal the Speaker shall have the casting vote. 11. And be it enacted, That for the purpose of eonsti. tuting the Legislative Assembly of the province of Canada it shall be lawful for the Governor of the said province, within the time herein-after mentioned, and thereafter from time to time as occasion shall i\;qiiii'e, in Her Majesty's name, and by an instrument or instrimients imder the great seal of the said province, to summon and call together a Legislative Assembly in and for the said province. 12. And be it enacted, That in the Legisktive Assembly of the province of Canada to be constituted as aforesaid the parts of the said ^ ^ovince which now constitute the provinces of Lpper and Loicer Canada resi)ectively shall, subject to the provisions herein-after contained, be represented by an equal number of representatives, to be elected for the places and in the manner herein-after mentioned. 13. And be it enacted, That the county of Ealion in the province of Upper Canada shall be divided into two ridings, to be called respectively the East Eiding and the West Riding ; and that the East Eiding of the said county shall consist of the following townships, namely, Trafalgar, Nelson, Esquesing, Nassagaicega, East Flamhorotigh, West Flaniborough, Ering, Beverley; and that the West Riding of the said county shall consist of the following townships, namely, Garafraxa, Nichol, Woolwich, Giielph, Waterloo, Wilniot, Dum- fries, Fuslinch, Eramosa ; and that the East Riding ard West Riding of the said county shall each be repre- sented by one member of the Legislative Assembly of the province of Canada. 14. And be it enacted, That the county of North- ttmberland in the province of Upper Canada shall be 1840,] 3 & 4 VICT. p. 35— BEPRESENTATION OF U. C. 669 divided into two ridings, to be called vespectiA'ely the North Hiding and the South Eiding ; and that the; North Riding of the last-mentioned county shall consist oftlic following townships, namely, 3Ionaghan, Otonahee, Asphodel, Smith, Bouro, Bummer, Belmont, 3Iethuen, Burleigh, Harvey, Emily, Gore, Mmismore ; and that the South Hiding of the last-mentioned county shall consist of the following townships, namely, Hamilton, Riddbnand, Cramak, JInrray, Seymour, Percy; and that the North Riding and South Riding of the last- lupntioned coimty shall each he represented by one ivionibov of the Legislative Assembly of the province of Conada. il: I un 15. And he it enacted. That the county of Lincoln in ?:'""'7 "*■ •■ ^ lilllCDlll. the province of Upper Canada shall be divided into two ridings, to be called respectively the North Riding and the South Riding ; and that the North Riding shall he formed by uniting the first riding and second riding of the said county, and the South Riding by uniting the third riding and fourth riding of the said county ; and that the North and South Riding of the last-mentioned county shall each be represented by one meml)er in the Legislative Assembly of the province of Canada. 16. And be it enacted. That every countv and riding, *^"""': "^"""^v other than those herein-before specified, which at the «>f Upper time of tlie passing of this Act was by law entitled to he represented in the Assembly of the province of Vpper Canada, shall be represented by one member in the Legislative Assembly of the province of Canada. 17. And be it enacted. That the city of Toronto T'wh cou- 1 11 1 1*11 slitiiuiioy of shall b(; represented by two members, and the towns ippor cnnada. of Kingston, Brockville, Hamilton, Cornwall, Niagara, London, and By town, shall each be represented by one member in the Legislative Assembly of the province of Canada, si ?ii ; 5 1 m ■ i K'l- :i =. I '! i 1 County con- stituency of Lower Canadii. 1 & 2 Vict. c. 9. Further pro- vision as to constituenej- of Lower Ciiniida. 670 3 & 4 VICT. c. 35.— REPRESENTATION OF L. C. [I840 18. And be it enacted, That every coanty which before and at the time of the passing of the said Act of Parliament, intituled " An Act to make temporan- Provision for the Government of Lower Canada," was entitled to be represented in the Assembly of the province of Lower Canada, except the counties of Montmorency, Orleans, V Assomption, La Chesnaye, L'Acadie, Laprairie, Dorchester, and Beaiice, herein- after mentioned, shall be represented by one member in the Legislative Assembly of the province of Canada, 19. And be it enacted, That the said counties of Mo7itmorency and Orleans shall be united into and form one county, to be called the county of 3Iont- morency ; and that the said counties of L'Assomptm and La Chesnaye shall be united into and form one county, to be called the county of Leinster ; and that the said counties of L'Acadie and Laprairie shall l)e united into and form one county, to be called the comity of Huntingdon ; and that the counties of Dorchester p/iid Beauce shall be united into and form one county, to be called the county of Dorchester ; and that each of the said counties of Montmorency, Leinster, Hunting- don, and Dorchester shall be represented by one member in the Legislative Assembly of the said province of Canada. Town con- 20. And be it enacted. That the cities of Quebec and i^wer Canada. Montreal shall each be represented by two members, and the towns of Three Rivers and Shevbrooke shall each be represented l^y one member in the Legislative Assembly of the province of Canada. 21. And be it enacted, That for the purpose of electing their several representatives to the said Legislative Assembly, the cities and towns herein-before mentioned shall be deemed to be bounded and limited in sucli manner as the Governor of the province of Canada, by letters patent under the great seal of the province, to be issued within thirty days after the union of the Boundaries of cities and towns to be settled by Governor. 1840.] 3 & 4 VICT. c. 35. -WRITS OF ELECTION. 671 said provinces of Upper Canada and Lower Canada, shall set forth and describe; and such parts of any such city or town (if any) which shall not he included within the boundary of such city or town respectively 1)V such letters patent, for the purposes of this Act sliall he taken to be a part of the adjoining county or riding, for the purpose of lieing represented in the said Legislative Assembly. 22. And be it enacted, That for the purpose of ^^"'^"'';^''"g electing the members of the Legislative Assembly of the province of Canada, it shall be lawful for the Governor of the said province, from time to time, to nominate proper persons to execute the office of re- tiiwiing offic^ in each of the counties, ridings, cities, and towns which shall be represented in the Legislative Assembly of the province of Canada, subject never- theless to the provisions herein-after contained. 23. And be it enacted. That no person shall be obliged T^im of offiou , ^ i)f rotunnng to execute the said office or returnmg officer for any "ffl.or. longer term than one year, or oftencr than once, unless it shall l)e at any time otherwise provided by some Act or Acts of the Legislature of the province of Canada. 24. And be it enacted, that writs for the election of Writs of memhers to serve in the Legislative Assembly of the province of Canada shall be issued by the Governor of the said province, within fourteen days after the sealing of such instrument as aforesaid, for summoning and calling together such Legislative Assembly; and that such writs shall 1)e directed to the returning officers of the said counties, riding, cities, and towns respectively ; and that such writs shall be made returnable Avithin fifty days at farthest from the day on Avhich they shall bear date, unless it shall at any time be otherwise pro- vided hy any Act of the Legislature of the said province ; and that writs shall in like manner and form be issued for the election of members in the case of any vacancy which shall happen by the death or resignation of the 072 3 & 4 VICT. c. 35— T^EPT^ESENTATTON, ris4o. \ t Time and jilapo of holding elections. Power to niter syMtcm of represoMtntion. person chosen, or by his being summoned to the Lp»is. lative Council of the said province, or from any otlipv legal cause ; and that such writs shall be made roturn- able within fifty days at farthest from the day on which they shall bear date, imless it shall be at any time otherwise provided by any Act of the Legislature of th(( said province ; and that in any case of any such vacancy which shall happen by the death of the person chosen, or by reason of his being so summoned as aforesaid, the writ lor the election of a new member shall bo issued within six days after notice thereof shall have l)cen delivered to or left at the office of the proper olTicor for issuing such writs of election. 25. And be it enacted. That it shall be lawful for the Governor of the province of Canada for the time being to fix the time and place of holding elections of members to serve in the Legislative vlssembly of the said province, until otherwise provided for as herein- after is mentioned, giving not less than eight days' notice of such time and place. 26. And be it enacted. That it shall be lawful for the Legislature of the province of Canada, by any Act or Acts to be hereafter passed, to alter the divisions and extent of the several counties, ridings, cities, and towns which shall be represented in the Legislative Assoml)ly of the proA'ince of Canada, and to establisli now and other divisions of the same, and to alter the apportion- ment of representatives to be chosen by the said counties, ridings, cities, and towns respectively, and make a new and different apportionment of the number of representatives to be chosen in and for those parts or the province of Canada wliicli now constitute the said provinces of Up])ei' and Lower Canada respectively, and in and for the several districts, counties, ridings, and towns in the same, and to alter and regulate the appointment of returning officors in and for the same, and make provision in such manner as they may deem iji 1840.] 3 & 4 VICT. c. 35.— RBPRESENTATION. 673 oxpodient, for the issuing and return of Avrits for the oloction of members to serve in the said Legislative Assembly, and the time and place of holding such elections : Provided always, that it shall not be lawful ^''oviso. to present to the Governor of the province of Canada for Her Majesty's assent any Bill of the Legislative Council and Assembly of the said province by which the number of representatives in the Legislative Assembly may be altered, unless the second and third roiuUng of such Bill in the Legislative Council and the Legislative ^Vssembly shall bavc been passed with the concurrence of two thirds of the members for the time being of the said Legislative Council and of two thirds of the members for the time being of the said Legisla- tive Assembly resi)ectively, and the assent of Her Majesty shall not be given to any such Bill unless addresses shall have been presented by the Legislative Council and the Legislative Assembly respectively to the Governor, stating that such Bill has been so passed. 27. And be it enacted, That until provisions shall The present p 1 -r ' ^ election liiws otherwise be made by an Act or Acts of the Legislature of the two of the province of Canada all the laws which at the apply"imdi time of the passing of this Act are in force in the pro- "'*'''^«'^' viucc of I'pper Canada, and all the laws which at the time of the passing of the said Act of Parliament, intituled "An Act to make temporary Provision for the i&2Viet.c.9. Government of Lower Canada,''^ were in force in the pro- vince of Loioer Canada, relating to the qualification and disqualification of any person to be elected or to sit or vote as a member of the Assembly in the said provinces respectively (except those Avliich require a qualification of property in candidates for election, for which provision is herein-after made), and relating to tlie qualification and disqualification of voters at the election of members to serve in the Assemblies of the said provinces respectively, and to the oaths to l)e taken hy any such voters, and to the powers and duties of returning officers, and the proceedings at such elections, S2340. U U 'I, i Ml 674 3 & 4 VICT. c. 35.— QUALIPICATIOXS. [\M(\. Qualiticntion of memlxjM. Declaration of candidiitcs for election. and the period during which such elections may be law. fully continued, and relating to the trial of controverted elections, and the proceedings incident thorc^to, and to the vacating of seats of members, and the issuins? and execution of new writs in case of any seat bein» vacated otherwise than by a dissolution of the Assembly, shall respectively be applied to (elections of members to serve in the Legislative Assomblv of tlio province of Canada for places situated in tbosc parts of the province of Canada for which such laws were passed. 28. And be it enacted, That no person sball be cap. able of being elected a member of the Legislative Assembly of the province of Canada who sball not be legally or equitably seised as of freehold, for his own use and benefit, of lands or tenements held in free and common socage, or seised or possessed, for his own use and benefit, of lands or tenements held in fief or in roture, within the said province of Canada, of the value of five hundred pounds of sterling money of Great Britain, over and above all rents, charges, mortgages, and incumbrances charged upon and due and payable out of or affecting the same : and that every candidate at such election, before he shall be capable of beins elected, shall, if required by any other candidate, or by any elector, or by the returning officer, make the following declaration : " ~W A.B. do declare and testify. That I am duly seised -i- at law or in equity, as of freehold, for my own use and benefit, of lands or tenements held in free and common socage, [or duly seised possessed, for my own use and benefit, of lands or tenements, held in fief or in roture {as the ease may 6e)] in the province of Canada, of the value of five hundred pounds of sterlini: money of Great Britain, over and above all rents, mort- gages, charges, and incumbrances charged upon or due and payable out of or attecting the same ; and that I have not coUusively or colourably obtained a title to ii \ IS 10.] 3 8. 4 VICT. 0. 35— DURATION OF PARL. 675 or become possessed of the said lands and tenements, or any part thereof, for the purpose of qualifying or enabling me to l)e returned a member of the Legislative Assembly of the province of Canada^ 29. And be it enacted, That if any person shall Persons mak- 1 •!/! 11 1 Pill . ing false (leola- knowingly and wilrully make a false declaration ration liable to ,. , . T/i ,. T1 i i 1 the penalties respecting Ins qualincation as a candidate at any elec- ofpuijury. tion as aforesaid, such person shall be deemed to be guilty of a misdemeanor, and being thereof lawfully convicted shall suffer the like pains and penalties as by law are inciivrcd l»y ])ersons guilty of wilful and corrupt pei-jury ill the place in which such false declaration shall have been made. 30. And be it enacted, That it shall be lawful for I'lneo and times tlie Governor of the province of Canada for the time 'r,,rnnment. being to fix such place or places within any part of the province of Canada, and such times for holding the first and every other session of the Legislative Council and Assembly of the said province as he may think fit, such times and places to be afterwards changed or varied as the Governor may judge advisable and most consistent with general convenience and the public welfare, giving sufficient notice thereof ; and also to prorogue the said Legislative Council and Assembly from time to time, and dissolve the same, by proclamation or otherwise, whenever he shall deem it expedient. 3L And be it enacted. That there shall be a session Dm-ation of of the Legislative Council and Assembly of the province of Canada, once at least in every year, so that a period of twelve ciilendar months shall not intervene l)etween the last sitting of the Legislative Council and ^Vssemblv in one session and the first sitting of the Legislative Comicil and Assembly in the next session ; and that . every Legislative Assembly of the said province here- after to be summoned and chosen shall continue for four years from the day of the return of the writs for choosing the same, and no longer, subject nevertheless UU 2 I t . i i •It u ',;i. .■) Ai : ' W I iii'! I , Fiwt calling togi'thor of the Legislature. Election of the Speaker. Quorum. Division. Casting vote. No member to sit or vote until he has taken the following Oath of Alle- giance, 676 3 & 4 VICT. c. 35.— ELECTION OF SPEAKEl^. [mo. to be sooner prorogued or dissolved by the Governor of the said province. 32. And be it enacted, That the Legislative Council and Assembly of the province of Canada shall Ix; called together for tlie first time at some period not later than six calendar months after the time at which the pro. vinces of ITpper and Lownr Canada shall hccomc re-united as aforesaid. 33. And be it enacted, That the members of tlio Legislative Assembly of the province of Canada shall, upon the first assembling after every general election, proceed forthwith to elect one of their number to ho Speaker; and in case of his death, resignation, or removal by a vote of the said Legislative Assembly, tho said members shall forthwith proceed to elect another of such members to be such Speaker ; and tho Speaker so elected shall preside at all meetings of the said Legislative Assembly. 34. And be it enacted, That the presence of at least twenty members of the Legislative Assembly of the province of Canada, including the Speaker, shall he necessary to constitute a meeting of the said Legislative Assembly for the exercise of its powers ; and that all questions which shall arise in the said Assembly shall be decided by the majority of voices of such niemhers as shall be present, other than the Speaker, and when the voices shall be equal the Speaker shall have the casting voice. 35. And be it enacted, That no member, either of the Legislative Council or of the Legislative Assembly of the province of Canada, shall be permitted to sit or vote therein until he shall have taken and subscribed the following oath before the Governor of the said province, or before some person or persons authorized by such Governor to administer such oath ; \m] .1 & 4 VICT. t. 35.— ASSENT TO BtLLS. 67? " r A.B. do sincerely promise and swear, That I will Oathof Alio- J- be faitliful and bear triu; allegiance to Her Majesty Queen Victoria, as lawful sovereign of the United King- dom of Great Britain and Ireland, and of this province of Canada, dependent on and belonging to the said United Kingdom ; and that I will defend her to the utmost of my power against all traitorous conspiracies and attempts whatever which shall be made against her person, crown, and dignity ; and that I will do my utmost endeavour to disclose and make known to her Majesty, her heirs and successors, all treasons and traitorous conspiracies and attempts which I shall know to be against her or any of them ; and all this I do swear without any equivocation, mental evasion, or secret reservation, and renouncing all pardons and dis- pensations from any person or persons whatever to the contrary. So help me God." 36. And be it enacted. That every person authorized Affirmation . IP 1 • instead ot oath. l)y laAv to make an affirmation mstead of taking an oath may make such affirmation in evory case in which an oath is herein-before required to be taken. 37. And be it enacted. That whenever any Bill Giving or with- *' hoklnig assent which has been passed by the Legislative Council and to buis. Assembly of the province of Canada shall be presented for Her Majesty's assent to the Governor of the said province, such Governor shall declare, according to his discretion, but subject nevertheless to the provisions con- tained in this Act, and to such instructions as may from time to time be given in that behalf by Her Majesty, her heirs or successors, that he assents to such Bill in Her Majesty's name, or that he withholds Her Majesty's assent, or that he reserves such Bill for the signification of Her Majesty's pleasure thereon. 38. And be it enacted, That whenever any Bill which Disallowance shall have been presented for Her Majesty's assent to sentcd to. the Governor of the said province of Canada shall by such Governor have been assented to in Her Majesty's name, such Governor shall by the first convenient : 1 i i ;' f ,1 . 5 1 H lii 078 ;i & 4 VICT. c. 35.— DISALJ-OVVANCE OF BILLS. [IH4U, Assent to ]5ill» reserved. Anthiirity of the Governor. opportunity transmit to one of Her Majesty's pvincipal Secretaries of State an authentic copy of such Hill so assented to; and that it shall be lawful, iit an\ tiiiic within two years after such Bill shall have hocii so received hy such Secretary of State, for Her .Majt-stv hy Order in Council, to declare her disallowance of such Bill ; and that such disallowance, toj^etlier with a ci'vtifi. Gate under the hand and seal of such S(?cretary of State, certifying the day on which such Bill was received as aforesaid, being signitied by such Governor to the Legislative Council and Assembly of CaiKida, hy spcocli or message to the Legislative Council and Asscmhly of the said province, or by proclamation, shall make void and annul the same from and after the day of such signification. 39. And be it enacted, That no Bill Avliieli shall he reserved for the signitiaition of Her ^lajesty's ploasiuc thereon shall have any force or authority within the province of Canada until the Governor of the said pro. vincc shall signify, either by speech or mes.saj,'*' to the Legislative Council and Assembly of the said proviiico, or by proclamation, that such Bill has l)een laid hefoiv Her Majesty in Council and that Her ^Eajesty has heeii pleased to assent to the same ; and that an entry shall be made in the journals of the said Legislative Council of every such speech, message, or proclamation, and a duplicate thereof, duly attested, shall be delivered to the proper officer, to be kept among the records of the said province ; and that no Bill which shall be so reserved as aforesaid shall have any force or authority in the said province unless Her Majesty's assent thereto shall have been so signified as aforesaid within the spac<^ of tw years from the day on which such Bill shal' presented for Her Majesty's assent to the ( .aoras aforesaid. 40. Provided always, and be it enacted, That nothui. hereiu contained shall be construed to limit or restrain the exercise of Her Majesty's prerogative iu autho- \m] 3 4 4 VICT. 0. 3i>.— GOVERNOR & LIEUT.-GOV. 679 ri/.in!,', and that notwithstandinsf this Act, and any other Act or Acts passed in the Parliament of Great liritnin, or in the I'arliauiont of the United Kingdom of Great Bi'ifain and Ire/and, or of the Legislature of the province; of Quebec, or of the provinces of l/^pper or Lnircr Catiadn respectively, it shall be lawful for Her Majpsty 10 authorize the Lieutenant-Governor of the province of Canada to exercise and execute, within such parts of the said province as Her Majesty shall tliink tit, notwithstanding the presence of the Gov- ernor within the province, such of the powers, functions, and authority, as well judicial as other, which before and at the time of passing of this Act were and are vested in the Governor, Lieutenant-Governor, or person administering the government of the provinces of Upper Canada and Loioer Canada respectively, or of either of them, and which from and after the said re-union of the said two provinces shall become vested in the Governor of the province of Canada; and to authorize the Governor of the province of Canada to assign, depute, substitute, and appoint any person or persons, jointly or severally, to be bis deputy or depu- ties within any part or parts of the province of Canada, and in that capacity to exercise, perform, and execute durins,' the pleasure of the said Governor such of the powers, functions, and authorities, as well judicial as other, as before and at the time of the passing of this Act were and are vested in the Governor, Lieutenant- Governor, or person administering the government of the provinces of Tipper and Lotcer Canada respectively, and which from and after the union of the said pro- ices shall become vested in the Governor of the province of Canada, as the Governor of the province of >ada shall deem to be necessary or expedient : Pro- \ ided always, that by the appointment of a deputy or deputies as aforesaid the power and authority of the Governor of the province of Canada shall not be abridged, al: red, or in any way affected otherwise than as Ilor Majesty shall think proper to direct. ill U:. 680 3 & 4 VICT. c. 35.— CROWN RIGHTS. [1840. (!,' 1 i Langunge of legislative records. 41. And be it enacted, That from and after tlic said re-union of th'^ said two provinces all writs, proclama- tions, instruments for summoning and callins: toTothor the Legislative Council and Legislative Assembly of the province of Canada, and for proroguing and dissolvin'r the same, and all writs of summons and election, and all writs and imblic instruments Avhatsocver nlatinr; to the said Legislative Council and Legislative As.seinl)lv, or either of them, and all returns to such writs and instruments, and all journals, entries, and AM-ittou or printed proceedings, of what nature soever, of the said Legislative Coimcil and Legislative Assembly, and ot each of them respectively, and all written or printed proceedings and reports of committees of the sfud LegisUtive Council and Legislative Assembly respec- tively, shall be in the English language only : Provided always, that this enactment shall not be construed to prevent translated copies of any such documents heini,' made, but no such cojjy shall be kept among the record!) of the Legislative Council or Legislative ^Vssembly, or be deemed in any case to have the force of au original record. m II ! I, Ecclesiastical and Crown rights. 14 Geo. 3. c 83. 42. Vnd be it enacted. That whenever any Bill or Bills shall be passed by the Legislative Ct)iincil ami Assembly of the province of Canada, containing am provisions to vary or repeal any of the provisions now in force contained in an Act ot the Parliament of Gmi\ Britain i)assed in the s :/urteentli year of the reign of His late Majesty King George the Third, intitided " An Act for making more effectual Provision for tlie Govern- ment of the Province of Quebec in North America" or in the aforesaid Acts of Parliament passed in the thirty-first year of the same re -^n, resi)ecting the accustomed dues and rights of the clergy of the Churcli of Borne ; or to vary or repeal any of the several pro- visions contained in the said last-mentioned Act, respect- ing the allotment and appropriation of lands for the support of the Protestant clergy within the province of i l\ 1840.] 3 A 4 VICT. f. 35.— CHURCH RIGHTS. 681 Cmada, or respecting the constituting, erecting, or endowing of parsonages or rectories within the province of Canada, or respecting the presentation of incumbents or ministers of the same, or respecting the tenure on which such incural)ents or ministers shall hold or enjoy the same ; and also that Avhenever any Bill or Bills shall be passed containing any provisions Avhich shall in any niiinne?' relate to or affect the enjoyment or exercise of anv form or mode of religious worship, or shall impose or create any penalties, burdens, disabilities, or disqualifi- cations in respect of the same, or shall in any manner relate to or affect the payment, recovery, or enjoyment of anv of the accustomed dues or rights herein-before meniioned, or shall in any manner relate to the grant- ing, imposing, or recovering of any other dues, or stipends, or emoluments, to be paid to or for the use of any minister, priest, ecclesiastic, or teacher, according to any form or mode of religious worship, in respect of his said office or function ; or shall in any manner relate to or affect the establishment or discipline of the United Church of England and Ireland among the members thereof within the said province ; cr shall in any manner relate to or affect Her Majesty's prerogative touching the gmnting of waste lands of the CroAvn within the said province : every such Bill or Bills shall, previously to any declaration or signification of Her Majesty's assent thereto, be laid before both Houses of Parliament of the United Kingdom of Great Britain and Ireland ; and that it shall not be lawful for Her Majesty to signify her assent to any such Bill or Bills until thirty days after the same shall have been laid Ijefore the said Houses, or to assent to any such Bill or Bills in case either House of Parliament shall, within the said thirty days, address Her Majesty to withold her assent from any such Bill jr Bills ; and that no such Bill shall be valid or effectual to any of the said purposes witliin the said province of Canada unless the Legislative Council and Assembly of such province shall, in the session in which the same shall have been passed by them, have pre- 682 3 & 4 VICT. f. 35.—" REG. OF COMMEllCE." [1840. RititiJi r ^■ ('(iloiiial taxation, IS Geo. 3. f. 12. sented to the Governor of the said province an address or addresses specifying that such Bill or Bills contains provisions for some of the pnrposes herein-bef'orc spcci. ally descril)ed, and desirini^ that, in order to ""ve effect to the same, such Bills or Bills may be tninsniitted to England without delay, for tlie purpose of its hoiii;,' laid before Parliament previously to the sij^nificatiou of Her Majesty's assent thereto. 43. ^Vnd whereas by an Act passed in the ei;,'lit('eiitli year of the reign of His late Majesty King Geor;;e the Third, intituled " An Act for removing all doubts and aj)prehensions concerning Taxation by the Parliament of Great Brilaln in any of the Colonies, Provinces, and Plan- tations in North Anienca and the West Iiulien ; and for rei)ealing so much of an Act made in thi; seventh year of the reign of His present ^Majesty as imposes a Duty on Tea imjwrted from Great Britain into anv Colony or Plantation in America, or relating thereto," it was declared, that •' the King and Parliament of Great Britain \'Ould not impose any duty, tax, or assessment whattner, payable in any of His Majesty's colonies, provinces, and plantations in North Amerko or the West Indies, exce[)t only such duties as it niij;ht be expcidient to impose for the regulation of commerce, the net produce of such duties to ])e always paid and apj)lied to and for the use of the colony, province, or plantation in wliich the same shall be respectively levied, in such manner as other duties collected by the authority of the respective; general courts or 5,'eneral assemblies of such colonies, provinces, or plantations were ordinarily paid and applied": And whereas it is necessary, for the general benefit of the empire, that such ])ower of regulation of commerce should continue to be exercised by Her Majesty and the Parliament of the United Kingdom of Great Britain and Ireland, subject nevertheless to the conditions herein-befori' recited with respect to the application of any duties wliich may be imposed for that purpose ; be it therefore 1840.] .•? & i VICT. c. 35. APPKAL CO [HITS. 683 enacted, That nothing in this Act contained shall pre- vent or affect the execution of any hiw which hath been or shall be made in the Parliament of the said United Kingdom for establishing regulations and pro- hibitions, or for the imposing, levying, or collecting duties for the regulation ol navigation, or for the regulation of the commerce bet\\een the province of Canada and any other part of Her Majesty's domi- nions, or between the said province of Canada or any part thereof and >y^^y foreign country or state, or for appointing and di ting the payment of drawbacks of such duties so imp.ocd, or to give to Her Majesty any power or authority, by and with the advice and consent of such Losjislative Council and Assemblv of the said province of Canada, to vary or repeal any such law or laws, or any part thereof, or in any manner to prevent or obstruct the execution thereof : Provided always, that the net produce of all duties Avliich shall be so imposed shall at all times hereafter be ajjplied to and for the use of the said province of Canada, and (except as herein-after provided) in such manner only as shall I'e directed by any law or laws which may be made by Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of such province. 44. And wOiereas bv the laws no>v in force in the ^'""'•'* "/ •■ 1 y-, T • Appciii, Pro- saul provnice of Upper Canada, the Govern* n*, Lieu- uw. Qmin's tenant-Governor, or person administering the govern- (hancoryjii mentof the said province, or the Chief Justice of +he ;i»'^:;,|;i" J' said ijrovince, together with an', two or more of the Ai.pei.i in ^ p * Ix)wer CanadH. meml)ers of the ExecutiA'e Council of the said province, constitute and are a Court of Appeal for heaving and detoruiiuing all appeals from such judgments or sentences as may lawfully be brought before them : And whereas by an Act of the Legislature of the said province of Vpper Canada, passed in the thirty-third year of the reign of His late Majesty King George the Third, f'^/c'^^^^^ intituled " An Act to establish a Coui-t of Probate in the 33 oeo. 3. baid Proviuce, and also a Surrogate Court iu every "'"'" ! f' TOU t>i Hf »M» ^M *»-t*l»g'T*W*|ft*W"*'<^M*tn' •«*.• ' •• II ^i; !t :; ( 11 3 'i I; i I 684 3 & 4 VICT. c. 35.— COURTS OP U. C. [1840. (IjIIWS of I'ppcr CHiiadn 2 Will. 4. District thcveof," there Avas and is cstahli.«hc(l a Court ol' Probate in the said province, in which Act it was ciiactod that the Governor, Lieutenant-Governor, or ix'vson ad. ministering the government of the said last-montioned province should preside, and that he should have tho powers and authorities in the .said Act specilicd ; And 8) whereas by an Act of the Legislature of the said province of Upper Canada, passed in the second year of the reign of His late Majesty King William tho Fourth, intitided " An Act respecting the Time and Place of Sitting of the Court of King's Bench," it was amoiii; other things enacted, that His Majesty's Court of King's Bench in that province should be holden in a place certain ; that is, in the city, town, or place wliicli should be for the time being the seat of tho civil government of the said province or within oue mile therefrom : And whereas by an Act of the Lcgislatnic of the said province of Vpper Canada, passed in tlio seventh year of tho reign of His late Majesty King William the Foui'th, intituled " An Act to estaldisha Court of Chancery in this Province," it was enacted, that there should be constituted and established a Court of Chancery, to be called and known by the name and style of " The Court of Chancery for the province of Upper Canada," of which Court the Governor, Lieu- tenant-Governor, or person administering the govern- ment of the said province should be Chancellor; and which court, it Avas also enacted, should be holden at the seat of government in the said province, or in such other place as should be appointed by proclamation of the Governor, Lieutenant-Governor, or person adminis- tering the government of the said proAince: And 34 oio. 3. c. 6.) whereas by an Act of tlie Legislature oi the provmce or Loicer Canada, passed in the thirty -fourth year of the reign of His late Majesty King George the Third, intituled " An Act for the Division of the Province of Lower Canada, for amending the Judicature thereof, and for repealing certain Laws therein mentioned," it was enacted, that the Governor, Lieuteuaut-Guvcruoi'i (Laws of jjowor Ciiiindii, \m.] 3 & 4 VICT. c. 35. -COURTS OF L. C. 685 or the person administoririjaf the government, the members of the Executive Council of the said province, the Chief Justice thereof, and the Chief Justice to he appointed for the Court of King's Bench at Montreal, or any five of them, the judges of the court of the district wherein the iudgmenv appealed from Avas given excepted, should constitute a Superior Court of Civil Jurisdiction, or provincial Court of Appeals, and should take cognizance of, hear, try, and determine all causes, matters, and things appealed from all civil jurisdictions and courts wherein an appeal is by law allowed ; he it enacted, That until otherwise provided by an Act of the Legislature of the province of Canada, all judicial and ministerial authority which before and at the time of passing this Act was vested in or might be exercised by the Governor, Lieutenant-Governor, or person adminis- tering the government of the said province of Upper Cdiioda, or the members or any number of the members of the Executive Council of the same province, or was vest(Hl in or might be exercised by the Governor, Lieutenant-Governor, or the person administering the government of the province of Lower Canada, and the members of the Executive Council of that province, shall be vested in and may be exercised by the Governor, Lieutenant-Governor, or person administering the gov- ernment of the province of Canada, and in the meml)er8 ov the like number of the members of the Executive Coimcil of the province of Canada respectively ; and that, until otherwise provided by Act or Acts of the Legislature of the province of Canada, the said Court of King's Bench, now called the Court of Queen's Bench of Upper Canada, shall from and after the union of the provinces of Upper and Lower Canada be holden at the city of Toronto, or within one mile fi'om the nnmicipal boundary of the said citv of Toronto : Provided alwavs, that, until otherwise provided by Act or Acts of the Legislature of the province of Canada, it shall be lawful for the Governor of the province of Canada, by and with the advice and consent of the Executive Council of II' 't ! i ! ) w )t tiM m I ii n |M|in/'l 686 3*4 VrCT. c. 35.— POWERS OF GOVERXOR. riH40, Powers to be t'xorcised by the same province, hy his proclamation to fix and appoint such other place as he may think fit within tliat part of the last-mentioned proA'ince Avhich now consti. tutes the province of Tipper Canada for the lioldiiv^ of the said Court of Queen's Bench. 45. And he it enacted, That all powers, aiitlioritios Governor with and fuuctious wliicli hv tho said Act passed in tliothii the Executivo Council or nlono. Elxisling liiW'i siavcil. first year of the rei*?n of His late Majesty Kinsj ( Jcov^o tiie Third, or hy any other Act of T»arliament, or hy anv Act of the Legislature of the provMices of Upper and Loicer Canada respectively, are vested in or are authorized or required to he exercised hy the respective Governors or Lieutenant-Governors of the said province.-, with the advipe or with the advice and consent of the Exocutive Council of such provinces respectively, or in conjunction Avitli such Executive Council, or with any nuinl)er of the raemhers thereof, or hy the said Governors or Lieu- tenant-Governors individually and alone, shall, in so far as the same are not repugnant to or inconsistent with the provision of this Act, he vested in and may ho exercised by the Governor of the province of Canada, with tlie advice or with the advice and consent of, or in conjunction, as the case may require, with such Executive Ci)nncil, or any memhers thereof, as maj be appointed by Her Majesty for the affairs of the province of Canada, or by the said Governor of the province of Canada individu- ally and alone in cases where the advice, consent, or concurrence of the Executive Council is not required, 46. And he it enacted. That all laws, statutes, or ordinances, which at the time of the union of the provinces of Upper Canada and Loicer Canada ^\\i\\\\i^'vi\ force within the said provinces, or either of them, or any part of the said provinces respectively, shall remain and continue to be of the same force, authority, and eifect in those parts of the province of Canada which now constitute the said provinces respectively as if this Act had not been made, and as if the said two provinces had 1840.] 3 & 4 VICT. e. 35. SAVED LAWS & COURTS. ^^7 not been united as aforesaid, except in so far as the same are repealed or varied by this Act, or in so far as the same shall or may heri^after, hy virtue and under the authority of this Act, he repealed or varied by any Act or Acts of the Legislature of the province of Canada. 47. And be it enacted. That all tlio courts of civil Courts of and criminal jurisdiction within the provinces of Tipper missions, and Lower Conada at the time of the union of the said " '^'"^'*' "' provinces, and all legal commis-sions, powers, and autho- rities, and all officers, judicial, administrative, or minis- terial, within the said pro^anccs respectively, except in so far as tlie same may be abolished, altered, or varied by or may be inconsistent with the provisions of this Act, or shall be abolished, altered, or varied by any Act or Acts of tlie Legislature of the province of Canada, shall continue to subsist Avithin those parts of the province of Canada whicli now con.stitute the said tAVO provinces re.s]>ectively, in the same form and with the same effect as if this Act had not been made, and as if the said two l)rovinces had not been re-united as aforesaid. respecting teni- poniry Aet.s. 48. And Avhereas the Legislatures of the said pro- Provision vinecs of Zipper and Lower Canada have from time to time passed enactments, which enactments Avere to continue in force for a certain numl)er of years after the passing thereof, " and from thence to the end of the tiien next ensuing session of the Legislature of the province in which the same were passed ;" be it therefore enacted, That Avhenever the words " and from thence to the end of the then next ensuing session of the Les^islature," or words to the same effect, have been used in any temporary Act of either of the said two pro- vinces whieh shall not have exjnred before the re-union of the said t^^o provinces, the said AA^ords shall be construed to extend and apply to the next session of the Legislature of the province of Canada. \ ' I » ■ -tnmmg»?my w *^«**^ i i ! , i ^ . I l! ! i 1 i i 1 i I I ! r >' 688 8 A 4 VICT. c. 35.— CONSOLIDATED FX^ND. [1840, Eepeal of part of 3 Geo. 4. c. 119. 49. And whereas l)y a certain Act passed in the third year of the reign of His late Majesty King George the Fourth, intituled •' An Act to regulate the Trade of the Provinces of Lower and Upper Canada and for other Purposes relating to the said Provinces," certain provisions were made for appointing arhitratovs, with power to hear and determine certain claims of the province of ZTpper Camidn upon the province of Zoicer Canada, and to hear any claim which might he advanced on the part of the province of Upper Canada to a pro. portion of certain duties therein mentioned, and for prescrihing the course of proceeding to he pursued l)y such arbitrators; be it enacted, That the said recited provisions of the said last-mentioned Act, and all matters in the same Act contained which arc conse- quent to or dependent upon the said provisions or auv of them, shall he repealed. uro'™^- ^^- ^"^ ^^ ^^ enacted, That upon the union of the vinccs to form proviucos of Zipper and Lower Canada all duties and ft Consolidated * i . • ■ i j • t • i i « , Revenue Fund rcvonups ovcr which tlic rcspcctivc Legislatures of tho ofcamuia?""^" Said provinccs bcforc aud at tho time of the passing of this ^Vct had and have power of appropriation shall form one Consolidated Revenue Fund, to ho appropriated for the public service of the province of CoikkJo, in the manner and subject to the charges herein-after mentioned. Consolidated Revenue I'und to be charjjed with expense of collection and manage- ment. 51. And be it enacted, That the baid Consolidated Revenue Fund of the province of Canada shall bt^ permanently charged with all the costs, charges, and expenses incident to the collection, management, and receipt thereof, such costs, charges, and expenses hein;,' subject nevertheless to be reviewed and audited in sucli manner as shall be directed by any Act of the Legis- lature of the province of Canada. £46,000 to be 52. And be it enacted, Tliat out of the Consolidated nontiy, for the Rovenuc Fuud of tlic proviucc of Canada there shall be ^^w'j^Ic'a., payable in ev(M'y year to Hor Majesty, her heii-s and lim ^i 1S40.] 3 & 4 VICT. c. 35.— CIVIL LIST. G89 successors, the sum of forty-fivo thousand pounds, for f"r\ho n'fo^oi (Iffmvini? th(' (»\'[)onso of tlic several services and i)ur- i'*'' ^I'ljesty, '•• 1 CI 111 111 !•» '""^ ''^''-' yi""'* noses named ni the .Schediue marked A. to this Act following, for annexed ; and durins? th(^ life of Her Majesty, and for L'lu'iuL u. five years alter the demise of Her Maj(;sty, ther(? shall be payalih* to Her Maj(?sty, her lieirs aud successors, out of the said Consolidated llevenue Fund, a further sum of tliirty thousand pounds, for defrayini>; the expense of the several services and {)ur[)()ses named in the Scluidulc marked B. to this Act aiuunxed ; the said sums of forty- tive thousand |)ounds and thirty thousand pounds to be issued by the Receive r-General in discharge of such waiTiUit or warrants as shall he from time to time directed to him under the hand aud seal of the Governor ; and tlie said lleceiver-General shall account to Her Majesty for the same, throiijj;h the Lord High Treasurer or Lords Conunissioners of Her ^lajesty's 'J'reasury, in such manner and form as JI(M' ^Fajesty shall he i;raciously iileavd to direct. •I ! 1 53. And he it enacted. That, until altered hv any How the appm- iT'i •! • -y i' prmt 11)11 of Act of the Legislature of the province of CdixKhi, the sums ciMntcd siilaries of the Governor and of the Judges shall he those '""'^ respectively set against tluMr several offices in the said Schedule A.; hut that it shall he lawful for the (Jovernor toali(dish nnv of the offices named in the said Schedule H.. or to vary the sums appro])riated to any of the services or |)urposes nanuvl in the said Schedule JJ.; and tliMt the a:noiiiit of saving which may aeenic from any such alteration iii eitlu'r of the said Sclu'dulo shall he iiljpi'opriated to such purposes connected with the aihninisti'ation <)f the government of th(> said i)rovince as to Her Majesty shall seem lit; and that accounts in detail of the expenditure of the several sums of forty- five thousand pounds and thirty thousand pounds hcrein- liel'ore i;i;mti'd, and of every |)art thereof, shall he laid heiitre the Legislative Council and Legislative Assembly ol the said provuice within thirty days next after the beginning of the session after such expenditure shall S 2340. X X 690 3 & 4 VICT, c, 35.— CROWN REVENUES ST^TIRT). \\m. Surronder of hcri'ilitiiry rcvcmu's of I ho Crown. liavo l)oon made : Provided ahvays, that not more tlian two thousand pounds sliall l)o payahle at tlio same tinK. for ])('nsions to the Judi?os out of tho said sum of forty. tivc thousand pounds, and that not more than liif. thousand pounds sliall ho payahle at the same time tor pensions out of the said sum of thirty thousand ijomids^ and that a list of all such pensions, and of tli(> persons to Avhoni the same shall have heen granted, shall l)c laid in every year hcfore the said Legislative Council and Legislative Assemhly. 54. And he it enacted, Tliat during tlu^ time for which the said several sums of forty-five thousand pounds and thirty thousand pounds are severally pavalilc the same; shall he accepted and taken hy ITer ^lujcstv hy way of civil list, instead of all territorial and otlior revenues now at the tlisposal of the Crown, avisin;; in either of the said provinces of Z^ppcv Cdnmhi or Lowi' Canada, or in the province of Canada, and that tluvc tiftlis of the net produce of the said territorial and other revenues uoav at the disposal of the CroM ii u ithin tlio province of Canada shall he paid over to the account of the said Consolidated R(n'enu(5 Fund ; and also duriii!; the life of Her Majesty, and for tive y(>ars after the demise of Her ^Eajesty, the remaining two fifths of tin' net produce of the said territorial and other rcvoiuics now at the disjiosal of the Crown Avithin flu; provincoof Canada shall he also paid over in like manner to the account of the said Consolidated Revenue Fund. Charges nlreacly created ir. I'ilhrr pro- vince. 55. And he it enacted. That the consolidation of tlio duties and reA'onues of the said province shall not 1)0 taken to alVect the payment out of the said Consolidated Revenue Fund of any sum or sums heretofore cliars:!'*! upon the rates and duties already raised, levied, and collected, or to be raised, levied and collected, to and for the use of either of the said provinces of Vppci' C'diioik or Lower Canada or of the province of Caiiodo, for such time as shall have heen ajjpointed hy fhe sevend 1K40.] 1 A ^ VICT. c. 33— CHARGES OX CONS. FUND. 001 Acts of tlio Lopfislatnrri of tho provinco by whicli such clijirijos wore scvemlly authorized. 56 And bo it onactod, That tlio rxp(>nsrs of fhp t'" "•.i.-vof collection, nianagemciit, and receipt of the sjiid Con- <;Mi^..ii.iaua solidiitcd Rcnenuo Fund shall forni tlie first cliari^e i..,. |.;x,„.„,c. tlioivon ; and that tlie annual interest of tlie ])iiblic "''""" ^""'' (l('l)t of the provinces or ipper and IjOWCv OhkuIo, uy 'A'\\vM<\\ of cither of them, at the time of the re-union of tlie .said •'''''• '''.vnuiits provinces, shall form the second char«?e thereon; and m, ,„„i sih that tli(> payments to be made to the cler<:?y of the ^"'' ^'** ' I'nitod Church of England and Ireland, and to clerf^y of tlie Cliurcli of Scotland, and to ministers of other Christian denominations, pursuant to any law or usaii^e whcrehy such payments, before or at th(^ time of passiui;? this Act, were or are lei^ally or usually i)ai(l out of the I'lihlic or Crown llovonue of (<.ither of the provinc(^s of Vppor and Lower Canada, shall form the third charge iipou the said Consoli(hite(l Revenue {•'iind ; and that the said sum of forty-five thousand pounds shall form the fourth chari^e thereon ; and that tlu> said sum of thirty thousand pounds, so long as the same shall con- tinue to he payable, shall form the fifth charg(^ tlu'reon ; and that the other charges upon the rates and duties <"'''>• oiiur levied withm the said province of Canada herein-l)(?fore mmic on thr resevved shall form the sixth charge tlier(>on, so long as ]{"v'i.lmo. such charges shall continue to be payable. 57. And be it enacted, That, snbiect to the several s>''j'" t-tiio , .■llinvc cllillVcs, payments hereby charged on the said Consolidated the lonsnii- lleveiiue I'und, the same shall be appropriated by the I'lmii to ixs Lcijislature of the province of Canada for the public "J'ZS,!'^ service, in such manner as they shall think proiMU-: '''"'"'.^"'fn'; rroviiled always, that all Bills for appro^jriating any "|•'^'i"i"'"t-' '" part of the surplus of the said Consolidated Ke\ enue A>s(mi,iy tor riind, or for imposing any new tax or impost, shall ',Iu'.','i!!r,ri'y 'tli,- originate in the Legislative; Assembly of the said pro- ""^"•""'' vince of Canada: Provided also, that it shall not bo law! Ill for the said Legislative Assembly to originate or XX 2 i;!l! ' V; ) : I .!• -i « ! i !!( H*'!' !'i 'fj-I Townsliips to })e cijii'stitutol 002 3 k 1 VICT. p. 35— POWET^S OF GOVKllNOR [lam ])ass any vot(\ ivsoliition, or Bill I'ov tlic appropriation of any i)art of the surplus of the said Coiisolidati.d U(»vonuo Fund, or of any otiior tnx or ini|)ost, to miv j)urposo which shall not hav it «'nactod, That it shall he huvful lor the Gov(M'nor, hy an instrument or instruments to he issued hy him for that i)ur))ose under the u;r('at seal of the jn'ovince, to constitute townships in those parts of the province of Cdinnfa in Avhich townships arc not alrejuly constituted, and to fix the metes mid hounds thereof, and to provide for the election and appointment of toAvnshij) officers therein, who shall have and exercise the like powers as are ("xercised hy the like olllccrs in the townships already constituted in that part of tlic province of Cinwda now called Vpppr Ctniddn ; ami every such Instrument shall he published hy jjroclama- tion, and shall have the fore*' ot law from a day to l)e named in each case in such proclamation. 59. And he it enacted, That all powers and authorities Powers of OoVlTIlDf to 1)0 1 . 1 • 1 . oxoniscd suii- expressed in this Act to he •?iven to the (Joveriior of tlie jwt to ill-true- . ,. , I 1 11 1 ' • 1 1 1/1 tionsof ii.r province ot t (111(1(1(1 sliail he (vxercised hy such dovcrnov Vi.j.sty. jj^ conformity with and subject to such orders, instruc- tions, and directions as Iler Majesty shall from lime t(t time see fit to make or issue. MapciaUn gQ. And wlieivas TTis late Maiestv Kim? (icori>c tlie Isliiiids limy lx> ^ _ j . ^r-' niimxdi loth,. Third, by his royal proclamation, hearint? date tlie I'riiae K.iwimi. scvontli (lay of Octohcr in the third year of his reign. Avas pleased to declare that he had put the coast of Labrador, from tlu^ River Saint John to lliulson's Straits, with the islands of Aiiticosti and Madelaiiio, and all other smaller islands Ivinj; on tlie said coast, under the care and inspection of the Governor of Xcirfouiirajesty's ]»leasiire anncx(?d to and made j)art and |)iucel of tlu^ proviuct; of Q/tcbcc, as created and estah- iislu'd by the said royal prochimation ; he it dcchired aiul cuact(Hl, That nothinf]^ in this or any other Act contained shall he construed to restain Her Majesty, if she shall he so i)h'ased, from annexing? the Magdalen Inlands in the Gulf of Saint Lawrence to Her Majesty's island of Prince J£dward. }i 61. And he it enacted, That in this Act, unless i»t»rpn;tation otherwise; expressed therem, the words •' Act of the Legislature of the ])rovince of Canada" are to ho understood to mean "Act of ller Majesty, her heirs or successors, enacted hy Her Majesty, or hy the Governor on behalf of Her Majesty, with the advice and consent of the Legislative Council and Asscmhly of the province of Canoda"', and the words " Governor of the province of Canada " are to he understood as comi)rehendiug the Governor, Lieutenant-Governor, or person authorized to execute the ofiice or the functions of Governor of the said province. 62. And he it enacted. That this Act may he Ait nmy u J, 111 4 1 ^ • it altiTi'il this aniendeu or repealed hy any Act to be passed in the scsnIoh, present session of Parliament. SCHEDULES. SCHEDULE A. Governor Lieutenuut-Qovernor £ 7,000 1,000 ■J C91 3 & 1 VICT. c. 78.— CLERGY RESERVES. [1810. Upper Canad.\. 1 Chii-f Jiistiir '1 I'lii.siie Jiulion and the tulvauce- ment i)f Christian knowlclj^e within tlie province. Aiul that it should be lawful for the Governor of the pro- [IHIU. £ 1, .)()() 1,1:!.) l..')(H( 2.7(HI I.IOII -',7(xi <)(H) .")(I0 1S40.] 3 & 1 VICT. c. 78.- CLERGY FUNDS. 695 c'ltms LV of - 2(),,s:.-, i'l.J,0(JU ■ S.()(KI - .'i,(l(K) - ;i,(Ktfl - 2.000 - :\,m ■ i,(H)ll 700 - .).(KKI ."^..'ioo f.'JO.OOO S^o. 2, 1871, i the words (I high " to iiU'doni " to 2, 58 & 51 & 17 Vict. disposition d'.i, and I'or sill!;' tiiorc- (' advance- inc(>. And j1" the pro- vince of Canada, with the advice of the Executive Council, iiiidei' such regulatioiLS made ^y him in Coun- cil and approved l)y the Queen in Council, to .sell and convoy in fee sim^de all or any of the said Clergy llosorves. The quantity sold in any one year not to exceed 100,000 acres. By sec. 2, thf^ proceeds of all past sales which had })ecn invested under 7 & 8 Geo. 4. c. (52. Avere to he suhject to the Older of the Governor in Council, either i'or invest- ing in public funds in Hie jirovince of Conada .secured on the con.solidated fund of the province, or in the puhlic funds of Great Britain. Bv sec. 3, the interest and dividends accruinj^ on such investment, &.C., were to he paid to the Receiver- General of the province of Canad((, and were together to^foriii an annual fund in the first place to satisfy all annual ..tii)enils and allowances as liad been hitherto nssigned and given to the clergy of the Churches of KmjJond and Scol/and, or to any other religious bodies or denominations of Christians in Canada, and to which the faith of the Crown was pledged, during the lives of the per-sons leceiving the same. The section then pro- vided that until the annual fund so created and de- posited should suffice to nie(;t the above stipends and allowances, so much as the fund might be insufTicient was to 1)0 paid out of the casual and territorial revenue of the Crown in the province of Canada. By sec. i, wIkmi the fund ceeded the several siiponds and allowances, and subject to the lit-' v satis- faction ol them, the annual fund was to be appro- priated as f(dlows. The net interest accruing upon invest- ments of the proceeds of all .sal(>s of nvserves .sold under 7 (.t 8 Geo. l-. c. 02. were to be divided into three i'(pial parts, of which two were to be ap])i'0])riated to the Church of J'j'iiylandmnl one to the Chureli of S'cof/and ir CdiKidii ; and the net inti'iest, (.V'.'.. aceruiug ui)oii invest- ments of the jiroceeds of all .sales of reserves sold under authority ol this Act were to be divided into six ecj^ual u ^ ^'ii 'iraiii n^ ffl [ I 11 i i m^ : i ' i !' h ■ " i ' ^' 1 lij, ■ 1 i jlj ., 1 i : i i 1 i ! » ' 1 g ; ' ; ■ ' ■■ i i ■ 1 , i • ' ! ' nil ' \'A i 1 i 1 i J, f Ml ' i; iiii> j 696 .{ & I VICT. *•. 7W.— CLKTtGYFUNDSrul'M'S. [m 10. parts, of Avhich two were to ))(>api)ro))riato(l to the Cluirdi ol' Iut(// that neither of th»* said Churclies sliould reeeivi an\ further or other sum beyond such respective sti)n'ii(ls and aUowances until the [troportion of the said aiiniml fund allotted to them resj)ectively in manner aloicsiiil should exceed the annual aiuoiiiic of such stipends ainl allowances. liy sec. 5, it was enacted that the share ap^jropriatcd to each of the said Churches shoidd be expended lor tin sup[)ort and uniintenance ol" public worshij) and tin propagation of religi share ol tlir Church of Enyhanl being so exju'uded uiuh-r tlic aiitlid- rity of the " Society for the Propagation of the (i()s|i('l in Foreign I'arts," ?'.iul the share of the Church of Sajtliiml under the authn'its of a board of nine comniissiom'is, to !)<• eh!Cte(l by the Synod of tlu; I'reshyterian C'lurli of C('H(t, tlu' share of «'acli Church waK to he paid on warrant of the Governor. Jiy sec. 7, it was provided that the residue of tln' aniuial fund should be applied by the Governor nt Cn/uuht, \\'\tU th(> advice of the Kxecutive Cunncil, lor purposes of public worship and religious instruction in ('(inada. By sec. 8, the Heceiver-tieneral was, on or hct'orc tin 15th January in every year, to didiver to the tiovenioi 1H42.] & Virr. <•. V20.- CONSTITUTION OF NFL. 697 a cortitk'iitr of tlir not aiuount vvliich in that yoar would be appliwxbli" to the s(!Voral Churches of HugUind and Sroll(iii(f out of the fund. And that whenever the sum applicable was loss than £7,700 iu ease of the Church [){ England in Uppii' Cmunht, awA C1,5H() in the; case of the Cliurch of Scolhnid in CpiH'i' Canada, the de- ficiency iu <*acli wis(; was to he made j^ood out of the consolidated I'uiid of the United Kingdom. Hv sec. !), accounts were to he rendered to the (iovLTiioi' ill Council. Sec. 10 lyave the Governor a summarv remedy in ISO of any misapplication of the fiuuls. By sec. 11, so much of \\\ (Jeo. IJ, c. \\\. as related to am reservations of laiul hereaftiu* to he uiade in rppi't' and Lun-cr Cunoda for the support and maintenance of a Pi ti uit clerj^y was repealed. E} sec. 12, "Province of Canada" was to mean '■ United Provinces under li & 1 Vict. c. 35., and '"; vernor," Ciovernor, or Lieutenant-Governor, &c. 5 & (J VICT, a 842) c. 15. Imperial Co))yrisi;lit Act. Scfi post, Copyrifjfht Acts. 5 & VICT. (1842) c. 120. Sees. 5, 6, 8, 9, 10, 11, repealei hy S. L. R., 1871, Xo. 2, 37 & '^8 Vict. c. 9(). Vr 'amine, sec. 1 to the words " of the sjime, that," re[)ealed S. L. M., 1 890, No. 2, 5:i&r)l Vict. c. 51. An Act for amending the Constitution of the (iroveninient o^ Newfoandland. [VI Aug. 1842.] lATlII'lUKAS hy a commission under the jj;reat seal ' * ot the United Kiu«i;dom of Great Britain and IreliiuJ, bearinj^ date at Westminster the second day of Ali'.nli ill the year one thousand eight hundn'd and tliirty4v«ro, llis late Majesty King William the Fourth did ^Mve and grant unto the then (Jovernor of the island of Aen^'oundland full power aud authority, with the llilf<: M • , ,' i • ' ! 1 E '4 m .«<-»wirjyt»tt«Ma»tf,a;ia^wH»m-iaWWrii« .- •,• 698 5 & (J VICT. c. 120.— TOWNSHIPS IN N.F.L. [i.s^j advice and consent of the Council of the said island, from time to time, as need should require, to siiimnon and call i^eneral assemhlies of the freeholders and liousc holders within the said island and its dejxMidcneics, in such manner and form, and according? to such powcis instructions, and authorities as were £;:ranted or appointed hy certain instrvu'tions under His said late ]\laj('stv's sifj^n manual and signet accompanyins^ the said c(nn- mission ; and His said late Majesty did by the said commission declare, that the jiersons so elected, liavin;,' taken certain oaths therein mentioned, should he railed and decMued th(^ General Asscnnhly of the said island of Kewfoiindlond ; and tlie sjiid Governor, hy and with tiie mlvicu and consent of the said Council and Assciuhlv or the major part of them respectively, was hy the sjiid commission empowered and authorized to make, consti- tute, and ordain laws, statutes, and ordinances for the public peace, welfare, and good governnu'nt of the sjiid island and its de londencies, and the peoph? and iidiabi- tants there )f, and such others as should resort thereto, and for tlu benefit of His late Majesty, his heirs and successors : And whereas bv the before-mentioned instrj;ctions so referred to as aforesaid in the said com- mission the said Governor was authorized to issue a proclamation dividing the sjiid island into distiicts or counties, towns or townships, and ajjpointiui; the limits thereof, and declaring and apjjointing i\w nunibev of rei)resentatives to be chosen l)y each of such distiicts or counties, towns or townshijjs res})ectively ; And whereas the proclan ation referred to in the said last-nn'iitioned instructions was accordingly issiu'd by the said (iovernoi' in the nann^ and on the behalf of His said late Majesty, whereby the said ishind was divided into niii*: districts for the i)urpose of the election of the nunnhers of the said Assembly ; and it was ])y the said proelaniatioii, amongst other things, declared, that every man hcin^' ul the full age of twenty-one years and upwards, and hein;: of sound understanding, and being a natural- horn .sub- jcct of J.is said late Majesty, or having iieuu luwliiU) liiiliiiH 1812.] 5 & VICT. c. 120.— LEGISLATORS. 099 iiiitunilizcd, and never haviiii^ been convicted in due coiivscM)!' law ol" any infamous erinie, and havini^ for two veal's next immediately precedinsjf the day of election ()ccu|)ii'(l a dwellinif house within the said island, as ouiuT or tenant thereof, should he eligible to he a mciiibcr ol" the said JCouse of Assembly ; and it was l)y till' siiid proclamation further d«'clared, that every man who for one year next immediately precedinj^ the day of (lection had occupied a dwellin<^ house within the said islaiul, as owner or tenant thereof, and Avho in other ivspects niii^ht l)e elii^ible, accordini^ t) the rei^uhitions iiloresaiil, to be a jnember of the said lIou.se of Assembly sliould l)e competent and entitled to vote for the election of incnihers of the said Assembly in and for the district witliiii which the dwelliui^ house so occu[)ied as afore- siidlnhini niiii;ht be situated: And whereas, in pur- Miancf of the said commission, instruction, and pro- clamation, (Jeneial .Vssemblies have since been elected and lioldcn in and lor the said ishmd of Newfoundland ill the maimer therein prescribed ; and the sjiid com- mission and in.struclions have from time to time been renewed on the appointment of the successive Governors of the said island, and divers laws have been made in |)iii'siiaiice thereof by the said Governor, Councii, and Asseiuhly : ^\.nd wlnu'eas it is expedient that the changes iieicin-aftcr mentioned should be made in the constitu- tion of tli(^ ( lOvernnuMit of the siiid island ; be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present I'arliament assembled, and by the authority of th<^ same. That it ^'«^I»j'^|,v l ,. , , , * , " , , cinpDWi'iHHl to ^iiall he law! Ill to- iUiv ;^[aJesty in or by any commission riistiucjimii- •T coiinnissions under the i,'reat seal of the United mTni'i'.!^rs*of lviM!:(l.)in, to he hereafter IssikmI for the Government of -^'"^"'^^y- ^''irfotiudlitiul, and in and by any iiistructions under Her Mnjcsty's signet and sign manual accompanying find relerred to in any such commission or commissions, 'oestuhUsh a qualification in respect of income or pro- perty in right of which any person may be hereafter i • I !' • H\lik t 'i'. > fiiil: ;j; ' IrM- ) ' 700 5 «t 6 VICT. f. 120.- EXECUTIVE COUNCIL. [1H4'.>. elected to serve jts a member cf the sjiid Assembly provided that no such qualification shall Ix; H.xcd at more than a net annual income, arisinj^ from aiiv source whatsoever, of (me hundred pounds, or the ])()ss('ssion of prop(M'ty, clear of all incumbrances, exceeding live liundrcd pounds in amount or value. iierMHJ.st.v 2. And be it enacted, That it shall he lawful for l[(.v mipuwurfil to . . . . 1 . lengthen ixiio.! Majesty, in manner aforesaid, to lix and detenuiut' tlif cieitow. leiif^th oi tlu! period of residence AVitlun any oloctoral district in the said island Avhich shall he rcciuircd iji addition to any other (|ualific{ition for voting' at elections Avithin such district, or for heiiif? elected to serve as u member of the Assembly ; provided that such period shall not extend beyond the period of two years ne.vt precedinjj any such election. H. r Majesty 3^ ^11(1 be it cmicted, That it shall he lawful for llcr rnipowercil to , , . • 1 restrain appro- Majesty, ill manner aforesaid, to restrain the said m"ime. Assembly from appropriating to the jjiiblic service within the said island any part of tlie public reveiuK? tlicr<'of, in cases where such services shall not have bi-oii previously recommended, or such grants of money shall not have ])een previously asked, by or on the behalf ol Her Majesty. 4. And be it enacted, That it shall be lawful for Her to be simu taiicou: Hm' Miye!-tv enipuwprcil to . , . ,, . direct elections Majesty, ill manner aforesaid, to restrain and piohibit the election of members to serve in the said Assembly, in dilferent districts, on successive or ditlerent days, and to require that all such elections «hall he siiiuil- taneous, and shall be completed within a time to hi limited. Her Mi\jesty may HpjH)iiit an Executive Council. 6. And be it enacted, That it shall be eompetent to Her Majesty, in manner aforesaid, to establish an Exe- cutive Council for advising the Governor of t\w smmI island, apart and distinct from the Legislative Council thereof. 1H42.] 5 & 6 VICT. c. 120.— PREKOGATIVE SAVED. 701 A \n(l be it onactod, Tlmt it shall Ix; laAvfnl for Her ^^''' ^^"i'"'\y Afiiiestv, in manner aforesaid, to al)olisli the Lcirishitivo aiMiiishthc {'ouncil ol tn(» said island as a distinct house or orancli .list irRtiiiiimh nf the Lof^islaturc thereof, and to authorize and oinj)()\ver ',1',,','^ ^b""*- thc members of the said Legislative Council to sit and voto in the House of Assembly as members theniof, as fullv ill all resjiects as the elected members of th(» said House: Provi(h'd always, that the number of members so to 1)0 authorized to sit and vole in the said llcnise of Assembly shall never be more than two-lifths ol' th«' wliole number of the members of such llons«» of Assem- l)lv : Provided also, that it shall be competent to Her ""'i •" '••- • , . . • 1 i 1 !• 1 1 «stiibli

  • "u.s. time than tln^ Him dav of Seiitember oiu; thousand eiirht i''"''""""* . liimdred and forty-six, unless ParMfUient shall otherwise 'i'": in^o the United Kiiii,'(lnin, (i vice VfVfia into the colonies. See II iV I.") Vict. c. (1!). 7 & 8 ^ICT. (ISU) c. 12. [See Copyri<;ht Acts, posl.] U s ^1* i ' 7 & 8 VICT. (1811) c. (){). Repealed as to certain M(nds ])y S. L. ]{. Atl. 1801, c. 07. Tliis Act enacted tbat it should be competent to Hrr Majesty in Council to provide for the ailiiiission "I ,glO.] \'J & 13 VICT. c. 90.— POWER OF ADMIRALS. 703 iinpoals to iiersolf in Council from any court within aiiv llritish colony or jtosscs.sion abroad. Seo AppiMi- (lix li., Judicial Conunittoi' Acts. 10 & n VICT. (1817) c. 05. l^Sffi Copyriig'ht Acts, posf.'] 12 Si 13 VICT. (1819) c. 90. Sec. ') was, as rocjards the oxco])tion of tho possessions oftlicEasl India Coini)aiiy fronithcojxn'ationof the Act, ropilrd by 23 & 21. Vict. c. 88. s. 1. Sec. (i was ro- l)(.al.'(l by S. L. II. Act, 1878, H Si 12 Vict. c. 79. Sec. 6 iVoin "and the word '(Jovernor'" to the end of the s.-clion. repealed by S. L. 11. Act, 1881, Lt & 45 Vict. I'. .'»!). j'reainble, and sec. 1 to " same that"; sec. 2; sec. ;{ to "enacted, that," and tho word "that" before "if any"; see. !• to "enacted that"; see. 5 to "en- aelod, tliitt," repealed by S. L. 11. Act, 1891, 6t & 55 Vict. c. 07. This was " An .Vet to provich* for tho IVosecutijm and Trial ill Her ^lajesty's Colonies of OlVences committed witliin the .lurisdiction of the Admiralty." [1 Aug. 1819.] TT"^II KIIEAS by an Act passed in the eleventh year ' * of Hie reign of Kinj^ William the Third, inti- tuled "Am Act for the more elVeetiial suppression of nwiii. 3. I'iracy," it is enacted that all piracies, felonies, and roh- liiTios eonunitted on the sea or in any haven, river, cTcek, or placo where the admiral or admirals lur. v i)ower, nitlioiity, or jurisdiction, may be examined, inquired of, ti'it'd, lieai'd, aiul determined and adjudijed, in any place at sea, or upon the land in any of His Majesty's Inlands, plantations, colonies, dominions, forts, or factories, t'» he appointed for that purpose by tho King's commis- 11 -i ■ I , :i \ { ■ ' iili 1]; >|fffiJt>l« fWl i m >l J HIl ' l* W Ttitrv n 9^tkm M * w *t^*. 704 12 & 13 VICT. c. on— riUME n\ the ska finif in. 'f(i 4n Geo. 3. c. 64. sion, in tli(> niamuM" thrrcin diroctoi!,' and accui'liii" to tli«' civil law and tlio method and rules ol' (Im! Adminiltv and whereas by an Act passed in the lorty-sistji v(.„i- of the reign of fJeorge tlu' Third, inlilnled " \n Ah for the speedy TrinI of OlVenees committed in (lislant pnrtsupon the Sea," it is enacted, that all treasons, pjia- cies, felonies, robberies, mui'ders, conspiiM('i(»s, and other ofl'ences of what nature or kind so(?vei' committed upon the sea, or in any haven, river, cr(»ek, or place wliciv the Jidmiial or admirals have power, authority, or jmis. diction, may he incpiired of, tried, heard, deternjiiied ami adjudt^ed, according to the common course of the laws of this realm used for olVenccs connnitted upon IIm' land within this realm, and not oth(«rwise in any of his Maj^sty'8 islands, plantations, colonies, dominions, forts. or factories, under and by virtue of the King's eoniuiis. sion or commissions under the great seal of Grcnl Britain to ho directed to cojnmissioiu'rs in the nianiior and with the powers and nuthoi-ities therein provided: And wluM'eas it is expedient to make further and licttcr provision for the ai)prehension, custody, an jirciit M'lil of Kiii;liiiiil, or tlir >v\\\ of tilt' Adiniriilty of Kii^liind, nii of them, to commit to safe ciistodv any per- son against whom imformiition of piracy, robU'iy, or felony upon the 8en shall be ^i veil upon oath (which oath tbey or any one of them were to have the I'ldl pttwcr iiinl win reqiiiriMl to lulniinister), timl wviv to call and iisseinble ii ciiiiil nl' nil- mindly on shipboniil ni' ii|ii>ii ilir iniid. which colli I niiisl ciiii^i^l nl seven persons al the leiisl. Thill any three ol the iiroicsiiiil ikmmii:- (whereoi' the president, Majesty's ships was iihviivs loir one) mi;j;ht call any |hisoii . i"i|i- tains, lieiiteiiantH, or \\aiTiuitolliiti< of His Majesty's ships of wiii.nr cajitains, masler.s, and iimti'snfsoiin' Euglish shii). 7^ isio] 12 A 13 VrCT. <•. on— CRIME OX THE SEA. 705 of such otVencos upon tlu* sea, <>!• in any such liavon, livoi', creek, or place as nlortisaid : He it therefore cnactf'd l>y the QuecMi's most Kx(H'llent Majesty, hy and wifli tilt' advice and consent of the Lords Spiritual and T('in|Mtr.il, and Ciininions, in this present Parliament .i^scmliN'd. and hy the authority ol" the same, That if aiiv iHTson within any c(dony shall he charij^tul wilh the coiiimission of any treason, piracy, lelony, rohhery, iiimdci', conspiracy, or other olVencc, of what natun; or kind soever, ci^mmitted upon the sea or in any haven, liver, creek, or place wheni the admiral or admii-als liiivc power, authority, or jurisdiction, or if any person tlmri^cd with the commission of any such olTence upon lilt' sea, or in any such haven, river, creek, or plnce, shall he hrouj^ht for trial to any colony, then, and in every such case, all magistrates, justic<'s of the peace, ))iil(lic prosecutors, juries, judges, coiu'ts, puhlic oHicers All porMms and other persons in sucii colonv, snail nave and exercise onionv wiiii ' (I' the same jurisdiction and authorities for in(|uiring of, ",,i','||!,'|'',,','''I','', tr\iiii,',licaring, determining and adjudgmgsuch (dVeiices and tliey ar<' hert'hy resjx'ctively authori/ed, emj)owere(l iii''^.iiii( and re(piired to institute and carry on all such pro- iiir,.ii;n..\ imd eeediiigs for the hringing of such persons so charged as ,,'i'w',[',",s""""' aliti-esaid to trial, aiul for and auxiliarv to and consc- ,""'l''."!"',. (|iient upon the trial of any such person for any such iill'eiiee wlierewith he may he charged as aforesaid, ashy ,,,iui,y. the law (if such colonv would and ouyht to have Ixmmi li.uland exercised or instituted and carried on hy them respectively, if such olVence had heen committed and sueli |iers(in had heen cliarged uith having committed fill' same upon any waters situated within the limits of aiiv such colonv, and within the limits of the local jurisdiction of the courts of criminal justice of such colonv, 2. Provided always, and he it enacted. That if any r">oiisc..n. liei'son sliall he convicted hefore any such <'ourt of any ««.iu.> shiiii such olVence, such jH'rson so convicted shall he suhject pmiisinmn'ts' "lid liahle to, and shall sulVer all such and the s^une "'"' ''"«'""'• S 2340. Y Y Mil IMIIV I HI ' (liiilt with ill I lull III till' iiiiii'K 111' ihu I I I I \. ) I I II ' If 1 ' I ^m^ UMPli IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1^ IM "^iiia 12.0 1.8 1.25 1.4 1.6 < 6" — ► f^.'^? < "*•* '> y Photographic Sciences Corporation 93 WIST MAIW STRUT WEBSTER, N.Y. 14SS0 (716) S73-4S03 V ^. I II 706 12 & 13 VICT. c. 96.— SEA & LOCAL JURISDIC. [1849, Provision for the trial of murder and manslaughter ■where the death only happens in the colony or upon the sea. pains, penalties, and forfeitures as by any law or laws now in force, persons convicted of the same rcspoctivelv would be subject and liable to, in case such oifence liad been committed and Avere inquired of, tried, heard, determined, and adjudged in Englcmd, any law, statute, or usage to the contrary notwithstanding. 3. And be it enacted, That where any person shall die in any colony of any stroke, poisoning, or hurt, such person having been feloniously stricken, poisoned, or hurt upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, autho- rity, or jurisdiction, or at any place out of such coloiiv, f vpry offence committed in respect of any such case, V nether the same shall amount to the offence of murder or • 'T anslaughter, or of being accessory before the faij' to murder, or after the fact to murder or man- slai ,s;,'ht(;r, may be dealt with, inquired of, tried, deter- mined, and punished in such colony in the same manner in all respects as if such offence had been wholly coin- mitted in that colony ; and that if any person in any colony shall be charged with any such offence as afore- said iu respect of the death of any person Avho, haviiig been feloniously stricken, poisoned, or otherwise hurt, shall have died of such stroke, poisoning, or hurt up(jn the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or juris- diction, such offence shall be held for the purpose of this Act to have been wholly committed upon the sea. Jurisdiction of By scc. 4 it was provided that nothing in the Act Court of New should in any way abridge the jurisdiction of the Sii- preserved" ^^ prcmc Court of Ncw Soutli Wales and Van Diemea's 9 Geo. 4. c. 83.; j^^^ ^s established by 9 Geo. 4. c. 83. Interpretation of terms. 5. And be it enacted. That for the purposes of this Act the word " colony " shall mean any island, planta- tion, colony, dominion, fort, or factory vjf Her Majesty, except any island witliin the United Kingdom, and the 1851.] 14 & 15 VICT. c. 03.— BOUNDARIES OF CAN. &N-.B. 7'^' islands of Man, Guernsey, Jersey, Aklerney, and Sar:., and the islands adjacent thereto respectively, ai. I except also all parts and places as are under the government of the East India Company [see above'], and the word " Governor " shall mean the officer for the time being administering the government of any colony. Sec. G only contained a power to amend the Act. 14 & 15 VICT. (1851) c. 63. Preamble and to "as follows " repealed by S. L. R. Act, 1892. Explained by 20 & 21 Vict. c. 34. post. An Act for the Settlement of the Boundaries between the Provinces of Canada and New Brunswick. [7 Aug. 1851.] WHEREAS certain disputes have existed respecting the boundary line between the provinces of Conoda and New Brunswick in North America ; and pending such disputes certain funds liave arisen from tlio disputed territory, and have been received 1)y the Governments of such provinces respectively : And whereas, with a view to the settlement of such disputes, the Governor-General of Canada and the Lieutenant- Governor of New Brunswick, by the advice of their respective Councils, agreed that the matter in dispute sjioiild he referred to arbitrators, who should be directed to report to Her Majesty '.s Government, and that such Governor-General and Lieutenant-Governor should each name an arbitrator on behalf of the .said respective provinces, and that such arbitrators should name a third arbitrator, the award to be made by the three arbitrators or any two of them ; and it was also agreed by such Governor-General and Lieutenant-Gov(;rnor, with the advice aforesaid, that the not proceeds of the funds in the hands of the said Governments arising from the disputed territory should be applied, first, to defray the expenses of the arbitration, second, to defray the ne- cessary expenses of running the (boundary) line as Y Y 2 Act may be amended. mv \. 708 14 & 15 VICT. c. 63.— FIXING BOUNDARIES. [1851. Appointment of arbitrators between Canada and New Bruns- wick. Award of Dr. Lushington and Dr. Twiss, 17th April 1851. settled, (in case such funds should prove insufficient the expenses to be borne equally by the respective Governments,) and, third, the balance of such funds to the improvement of the land and water communication between the great falls of the Saint John and the Saint Lawrence : And whereas, in pursuance of the agreement in this behalf, the Governor-General of Canada named Thomas Falconer, Esquire, to be one of the said ai'l)i. trators, and the Lieutenant-Governor of New Brnnsirici named Travers Twiss, Doctor of Laws, to l)e another of the said arbitrators, and the said Thomas Palconcr and Travers Twiss named the Right Honouraljle Stephen Lushington, Judge of the Admiralty Court, to act as the third arbitrator : And whereas on the seventeenth day of April, one thousand eight hundred and fifty-one, the said Stephen Liishington and Travers Twiss made an award concerning the said boundary, and transmitted the same, together with a plan therein referred to, to the Right Honoui'able Earl Grey, one of Her Majesty's principal Secretaries of State, and such award is in the following terms : " That Neiv Brunsioich shall be bounded on the Avest by the boundary of tlie United States, as traced by the Commissioners of Boundary under the Treaty of JFaskington dated August 1842, from the source of the Saint Croix to a point near the outlet of Lake Pech-la- Avee-kaa-co-nies or Lake Beau, marked A in the accom- panying copy of a part of plan 17 of the survey of the boundary under the above treaty ; thence by a straight line connecting that point Avith another point to be determined at the distance of one mile due south from the southernmost point of Long Lake ; thence by a straight line drawn to the southernmost point of the fiefs Madawaska and Temiscouata, and along the soutii- eastern boundary of those fiefs to the south-east angle of the same ; thence by a meridional line northwards till it meets a line running east and west, and tangent to the height of land dividing the waters flowing into the River Rimouski from those tributary to the Saiiit 1851.] 14 & 15 VICT. c. 63.— BOUNDARY LANDS. 709 i .if John ; thence along this tangent line eastward until it meets another meridional line tangent to the height of land dividing waters flo\Wng into the River Rimouski from those flowing into the Restigouche River ; thence along this meridional line to the 48th parallel of latitude; thence along that parallel to the Mistouche River; and thence down the centre of the stream of that river to the Restigouche ; thence down the centre of the stream of the Restigouche to its mouth in the Bay of Chaleurs ; and thence through the middle of that Bay to the gulf of the Saint Lawrence ; the islands in the said rivers Mistouche and Restigouche to the mouth of the latter river at Dalhousie being given to New Brunswick": And whereas it is expedient that the said hotmdary should be settled in conformity with the said award : nov/, therefore, be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. New Brunstoick shall be bounded -as in the said '^^% i'"« <^t 1 > T scribed in the award mentioned ; and it shall be lawful for one of Her award to be Majesty's principal Secretaries of State to appoint such andtTbeset' person or persons as he may think fit to ascertain, define, °ngiy^'^°'^'^" and mark the boundary line between the said province of New Brunswick and the said province of Canada^ according to the intent of the said award. 2. The net proceeds of the funds in the hands of the The funds 11 .1 . p y-v 7 1 *<^crued from local governments of the said provinces of Canada and the dkpmcd New Briinstcick respectively arising from the territory be™pphed° heretofore in dispute between such provinces shall be ^hragiement. applied according to the terms herein-before mentioned of the said agreement concerning the same.^ ' Held that the whole Bay of (Dom.) c. 60., although the offence Chaleurs is within the boundaries complained of — drifting for ml' of the provinces of Quebec and New mon — took place more than three Brunswick, and within the Do- miles from either shore. See minion of Canada, and the opera- Mowat «. McFee, 5 S. C. R. 66; tions of the Fisheries Act, 31 Vict. 19 S. C. N. B. (3 P. & B.) 252. I ' »■ i J •t i ! i / 3 & 4 Vict. c, 78. 710 IG & 17 VICT. c. 21.— CLERGY RESERVES. [1^53 16 & 17 VICT. (1853) c. 21. An Act to authorize the Legislature of the Pro- vince of Canada to make Provision ccncerninff the Clergy Reserves in that Province, and the Proceeds thereof. [9 May 1853.] [See 3 & 4 Vict. c. 78.] " TTTHEREAS the Act of the session of Pavliamont ' » liolden in the tliird and fourth years of Hoi- Majesty, chapter seventy-eight, provides for the sale of the lands called Clergy Reserves in the proAincc of Canada, and for the distribution of the proceeds thereof ; and it is expedient that the Legislature of the said pro- vince should he enabled to make further provisions in relation to such Reserves and proceeds :" Be it enacted by the Queen's most Excellent Majesty, by and Avitli the advice and consent of the Lor(' Spiritual and Tem- poral, and Commons, in this present Parliament assem- bled, and by the authority of the same, as follows : 1. It shall be lawful for the Legislature of the Power to tae Lefjislaturo of 7 n • ■ 1 Canada to alter proviuco of Canada, f rom time to time, by any Act or tion onhe"^'*" Acts to be for that purpose made and enacted in tlie ferTe^and tho uaauucr and subject to the conditions required by tlie proceeds ^q^ of tlic Said scssiou of Parliament holden in the third thoreof, and to make such aud fourth ycars of Her Majesty, chapter thirty-live, visions a°s shall scctious tliii'ty-seven, thirty-eight, and thirty-niue, in seem meet. respcct of Acts made and enacted by such Legislatnre, to vary or repeal all or any of the provisions of the mA first-mentioned Act of Parhament for or concerning the sale, ahenation, and disposal of the said Clergy Reserves, and for or concerning the investment of the proceeds of all sales then made or thereafter to be made of such reserves, and for or concerning the appropriation and application of such proceeds and investments, and the interest and dividends thereof, the interest accruing on sales on credit of such reserves, the rent of such reserves for the time being unsold, aud all other the proHts of or 1H54.] 17 & IS VICT. c. 118.— ALTERING CONSTITUTE. 711 accruing from such reserves, and (notwithstanding the siiid lirsl-mentioned Act of Parliament) to make such other provisions for or concerning the sale, alienation, or disposal of the said Clergy Reserves and such in- vestments as aforesaid, and for or concerning the appropriation and application of such Clergy Reserves, proceeds, investments, interest, dividends, rents, and proiits, as to the said Legislature may seem meet. 2. Provided, That it shall not he lawful for the said ^ho said Legis- lature not Legislature, hy any Act or Acts thereof as aforesaid, to authorized to 1 1 •. e ±1 1 J.' 1 interfere with annu^ suspend, or retiuce any oi the annual stipends or existing in- allowances which have heen already assigned and given '""''*'''■ to the clergy of the Churches of England and Scotland, or to any other religious bodies or denominations of Christians, in Canada, (and to which the faith of the Crown is pledged,) during \h.e natural lives or incumbencies of the parties now receiving the same, or to appropriate or apply to any other purposes such part of the said proceeds, investments, interest, dividends, rents, and profits as may be required to provide for the payment of such stipends and allowances during such lives and incumbencies. i^ it M i 17 & 18 VICT. (1854) c. 118. \See B. N. A. Act, 1867, which apparently repeals this Act.] An Act to empower the Legislature of Canada to alter the Constitution of the Legislative Council for that Province, and for other Purposes. [11 Aug. 1854.] WHEREAS an Act of the session of Parliament holden in the third and fourth years of Her Majesty, chapter thirty-five, ' to reunite the provinces of Upper and Lower Canada, and for the Go- veraient of Canada,' provides amongst other things for the establish- ment of a Legislative Council in the province of Canada, consisting of members summoned thereto by the Governor, under the authority of Her Miijesty as therein specified : And whereas it is expedient that the Legis- lature of the said province should b(! empowered to niter the constitution of the said Legislative Council : And whereas the said Act requires amendment in other respect : " Be it enacted by the Queen's most Excel- lent Majesty, by and with the advice and consent of the Lords Spiritual l. 712 17 & 18 VICT. o. 118.— rOWER TO ALTER ACTS \m Power to he Lcgislaturo of Canada to alter tho con- ■titution of the Li'gisliitive Council. Provisions of former Acts of Parliament to apply to the new I-egislative Council. Power to the Legislature of Canada to vary the provisions of the Act or Acts consti- tuting the new Legislative Council ; and to vary, &c. the pro- perty qualift- cation of mem- bers of Assem- bly. Proviso in Section 26 of 3 & 4 Vict. c. 36. repealed. and Temponil, and Coimnoiis, in tbi.s prewnt Parliament assi'inlilcd iimi by the authority of the Hame, as foUow.s ; 1, It shall lie lawful for (he Le<;ishitnre of Canada by aiiv Act m Acts to be luTcnfter for tliat [lurpost i>as.'*('(l, to alter the manner ot coniposiii" the Legislative C'ouneil of the sai!' such untnber of members a;)i)ointed or to be appointed or elected liv siuli persona and in sneh manner as to the said Legislaturt; niiiy s'cm lit ainl to fix the fpialifieations of the persons capable of being so uppdintcd or elected, and by sneh Act or Acts to make provision, if they shall tliiuk fit, for the separate dissolntion by the Governor of the said Lcgisiiitivi' Council and Legislative Asseud)ly respectively, anil for the pm'iwsc- aforesaid to vary and repeal in such manner as to them amy seem fit all or any of the sections and provisions of the said recited Act, KikI oCanv other Act of Parliament now in force which relat(^ to the eoiistitiitinii of the Legislative Conncril of Canada : Provided always, that any Bill or Bills which shall be passed by the pr(>sent Legislative Council and A.ssciuIjIv of Canada for all or any of the purposes aforesaid shall l)e reserved bv the said Governor, unless he think fit to withhold Her Majesty's a' given to any siieli Bill uiiIo.hs U'ldiVHses .shall have been pivsciited by the Le^isliitive Couueil and the Legislative Assembly respee- tivclvtothe Governor stating that such Bill has been so passed, is hereby repealed. 6, The forty-second seetion of the .said recited Act of Parliament, Section 42 of niovidiiig that in certain cases Bills of the Legislative Council and 3 & 4 Vict. Assembly of Canada shall he laid before both Hon.ses of Parliament of ^- '^''- ^'^P"'"'"!. the United Kingdom, is hereby repealed ; and, notwithstanding any- lliing in the said Act of Parliament or in any other Act of Parliament coiitaiui'il, it diall be lawful for the Governor to declare that he assents in Her Majesty's name to any Bill of the Legislature of Canada, or for Her Majesty to assent to any such Bill if reserved for the significa- tion of her pleasure thereon, although such Bill .shall not have been laid iuioie the .said Hon.ses of Parliament ; and no Act lieretofore pas.sed or to lie pa.ssed by the Legislature of Canada tihall be held invalid or ineffectual l)y reason of the same not having been laid before the said HoiLses, or by reason of the Legislatix (i Council and Assembly not having piesented to ♦he Governor such address as by the .said Act of Parlia- ment is required. 7. That in this Aiit the word " Governor " is to be understood as Interpretation comprehending the Governor, and in his ab.senee the Lieutenant-Go- of terms, vernor, or person authorized to execute the office or the functions of the Governor of Canada. 18 & 19 VICT. (1855) c. 91. Sec. 16 amended l)y 25 & 26 Vict. c. 63. s. 22. Sec. 13 repealed by 34 & 35 Vict. c. 110. s. 12. Sec. 11 amended by 35 & 36 Vict. c. 73. s. 3, and as regards a few words by S. L. II. Act, 1892, c. 19. An Act to facilitate the erection and maintenance of Colonial Lighthouses, and otherwise to amend the Merchant Shipping Act, 1854. [14th Aug. 1855.] This Act was repealed and embodied in the Merchant Shipping Act, 1894, 57 & 58 Vict. c. 60. As to colonial lighthouses, see ss. 670 to 675 inclusive. [aS'^^ post.] 19 & 20 VICT. (1856) c. 23. An Act for granting certain Additional Powers and Authorities to the Canada Company. [23rd June 1856,] WHEREAS by an Act of Parliament passed in the sixth year of the reign of his late Majesty King George the Fourth, intituled, ' An Act to enable His Majesty to grant to a Company, to be incoi-porated 6 G. 4. c. 75. hy Charter, to be called " The Canada Company," certain Lauds in the ■'I '! [;• t. h\ i 711 in & 20 VICT. c. 23.r-CHARTER OF CAN. CO, [IHSO. ("hartiT, (lilted 19 August. (7 O. 4.) Proviiiff ol' I'jtper Cunatia, and to invcMt the wnid Company with ecitain Powers and Privileges, anaud province, and for the other purposes therein- after mentioned, and that the present capital or joint stock of the (i(||.|.. alilc portion ol' .hik'Ii Iniids Imvc liccii sold iit pi'it't'sconsidciiililvi'x li,,,, tlic moneys expended in pureimsinjjj tind impidvin;; di,. mh",,,, i^h ||^^ vulno of tlie unsold portion of siieii liinds vei'v fnr exceeds the nniiiiini ,,f the paid-np eiipital of the eompnny, and of idl the lial(ilities df t'lc ((nii. pany, ani' the expression, " The Canada Company's Amendment Act, IH.JG." 2. For the purpose of ascertaining; the funds ai>plicable to be tjiviiliij among the proprietors of the company as and by way of dividend, iiinlir tlie provisions of the said charter of incorporation, it shall be Inwriii |i,r the coiu-t of directoi's of the said company from time to time to set ii|iiiii or reserve such part or parts of the lands of the said comiHuiy, wlutlur contracted to be sold or not, and such part or parts of the ni()rl<;ii(;iN uml other securities for money for the time being held by the siiid coniiiiiiiv, a.s they in their judgment shall deem to be sulHciont, having rt'f,'iinl io th(! val'ie of the said lands, mortgages, and other securities, to hv nsiir- tained by such estimates or valuations as to the said court of diivcKn* shnll be satisfactory, to answer the said sum of two hundred imd cIl'IiIv- nine thousand seven hnndred and thirty-seven [)onnds ten sliiliings. nnJ from time to time to altei- and vary the lands, mortgages, and sci'iiritirs so set apart, for others, and without prejudice to the right of the criiii- pany to realh^e and sell the same or any part thereof, and tin- liiiiJ, mortgages, atid other seciu-ities, for the time being remaining so set iiiMit and reserved, and the proceeds thereof, shnll for the })urpos('s iifoivjiiid be deemed to be and to represent the capital of the company. 3. All moneys to nrise from the annual rents and profits of the lauJ*, and from the interest and profits of the mortgages and other sciuiitie* of the company, inchuling the lauds, mortgages, and securities, for tlic time being so set apart and reserved, and all the moneys to arise and lie received by sale or otherwise for and in respect of all other the laiid>, property, and effects of the company, other than and except wliut iiiidir the provisions of this Act shall for the time being be set apart as rcpie- senting the capital of the company, shall for all intents and ])iHpo«e< t»' treated as gains and profits of the company, and, after deducting and n- tjiining thereout so much as may be necessary to meet the debts iiiiJ liabilities of the company, the residue thereof shall be applicable towiirl' payment of interest on the paid-up capital of the company, lunl tk dividends from time to time to be declared on the shares therein. 4. It shall not be lawful for the directors to call up any further pm of the subscribed capital of the company. ip any further pan 18,',(],] 10 & 20 VICT. i'eti\eiy, III iici'onlniice wilii the provisions of tlie said charter, to direct that the iillairs of the said company sIimI! lie wound uji, and that the coin[)aiiy >li,'ill III' inssiilv('(l, whicii resolution shall he suhiiiitted to tiie pi'oprietors 111 a siihseipieat special jj;eneral court to he also speciidly called fur the piiilidsc, Mild iield lit tin interval of not less than one calendar month nor iimrc tliiiii tun cideiidiii' months fiom the special ;.;oneral court at which llh- ii'siihilion shall hvne passed ; and such second spei''al fjeneral court sliiili, if rcipiired hy any nine [iroiirictors present thereat, he adjourneil Inn time Mild place to he then appointed hy the ehiiirni'in, for the piir- iiiisi' riiilv di' tiikiiij; the votes of the priiprietors on such resolution ; ami ill ciisc the siiid resolution shall lie coidirmed hy a miijority of the votes ilivt'ii lit siicli second special <^enei'id court or adjuuriied f^eiierid court, as the iiN' iniiv lie, hy proprietors duly (pialiiieil as aforesiiid, the directors of lliiiiiiiipiiiiy sliiill with all convenient .speod [jiiy anil discharge all deht.s ami iiiiliilities of the eomiiany, and sell and convert into money the land ami otlicr pi'n|ierty of the conipHuy then i'emaininrest and dividends shall l)o liayalile, imil tli'^ directors and other otficers of the company .shall con- tinuo to he appointed, until the passing such resolution as after men- tioned. 7, In ease any resolution for winding up the affairs of the company Diroctors to siiaii Ik' [iiissed tit such two general courts as aforesaid, then and in that '''''"•or final mse, wiii'ii and .so soon as all the debts and liabilities of the company ''|.""'? .'1'')!''''' shall liiive heen paid and satisfied, and all the assets thereof shall have ^ Ik'i'ii I'dilizcil, and divided aniong.st the shiireholders in the compuny, the (liieetors .shiill make out a final bahince sheet of the affairs of the company, anil suhniit the same for the approval of a general court of proprietors specially culled for the purpose of considering and approving such lialauce sheet, and for authorizing the final dissolution of the comi)any ; iinil if such general court shall, by a resolution passed thereat by a iiiiijmity of votes given in accordance with the provisions of the said cliart(M', approve of the said balance sheet, and authorize the final dis- solution of the company, the company shall as on the day after the pass- ing; of such resolution be dissolved. 8, This Act shall extend to and l)e in force in the said province.s Public Act. of Upper Canada and Lower Canada, as well as in the United King- [ :'S f P ' m ■ ^ IN''. 1 1 — ■ '1; . i il ((liliil: ; TO rnn a H w i>t»«.inmiTO»i-nt..^. Kxpenso.s of Act. 718 20 & 21 VICT. c. 31.— (1AN. & N. B. BOI^NDARY. [185; (loin of Great Britain iind Ireland, mid sliiill be jiidiciiillv taken ii()ti((, of as such by all jiidgt's, justices, and others, in the siiid provinces a- well as ill pleaded. the United Kingdom aforesaid, without pioiiiiccs as 9. The costs, charges, and expenses of and incident to tlic olitainin" and pa nig of this Act shall be [laid by the company. '' ]l !! I' < ' llli W \\ 1 1 1 ' I ' llli' '-l;,' I .i I ft 14 & 15 Viot. c. 63. 20 & 21 VICT. (1857) c. 3 k Proamhlo and to "of the f fiftocMith year of the rois^n of Her Majesty, intitiily these societies and by the provin- cial legislatures. In every case it is uecessiu'y to obtain authority to practise from the local society. The formalities to be observed, and tiie fees to be paid (which are moderate), may be ascertained on arrival, Where not otherwise men- tioned, n barrister wishing to be- come a solicitor, and vice versa, must follow the usual conditions prescribed for residents in the va- rious provinces. Quebec. — The difference be- tween the English law and the old French law prevailing in Quebec ohviously precludes any British legal practitioner being admitted to practise in this province without having passed through the usual course of study and examination provided by the Quebec Law So- ciety. Ontario. — A British barrister may be called, upon furnishing proof of his call and good stand- ing, and upon passing sueli ex- aminations as may be prescribed. If in actual practice in Ontario for three years, he may be admitted as a solicitor. A solicitor nuiy be called to the bar if he has had actual practice in Great Britain, upon passing certain examinations, varying with the length of time he has been in practice ; and if he has had five years' practice, or lias served one year with an Ontario solicitor, he may be admitted as a solicitor upon passing the usual final examination. Nova Scotia. — Barristers are admitted to practise in Nova Scotia upon filing satisfactory certificates of status, and solicitors upon filing certificates and passing an exami- nation. New Brunswick. — Solicitors must serve for one year before being admitted as attorneys, and at the end of an additional year may be called to the bar. Prince Edward Island. — Barristers and solicitors may he admitted after twelve months' resi- dence previous to filing an appli- cation for permission to practise in Prince Edward Island. Manitoba. — Barristers may be called in Manitoba upon producing evidence of call and .stiuiding. So- licitors are admitted to practise on passing an examination on the statute law of the province and practice of the provincial courts. North-West Territories. — Barristers and solicitors are permit- ted to practise on becoming resi- dents in the territories. British Coltmbia. — Barristers may be called to the bar, and so- licitors admitted to practise as such, after a residence of twelve months in the province, and parsing an ex- amination upon the statute law of the province and the practice of the provincial courts. [»See Official Handbook.] 'I ■ ! i; I ' I hi 21 & 22 VICT. (]858) c. 99. Sec. 1 repealed by 26 & 27 Vict. c. 83., and Act con- tinued; whole Act repealed by 29 & 30 Vict. c. 67. s. 9 ; (tnd S.L.ll. Act, 1878 ; and see 33 & U Vict. c. 66. S 2340. z z 1 m 'Vt*f*!^*•^^!t^<|*o » ^vatttm*'.f*.^^ *^m tm^t*it\t'•t^'ntrfiit*^r:lZ(^^nt^i*:^^ 1 1 11 J III HM M\ HSlli ■IHm ffiwi IIhI nffl 11 Boundaries of lii'itisli Columbia. Her Majesty by Order in Council may make or pro- viiK' for the making of laws for tho goverinni'nt of Ilor Majesty's subjects and others in British Columbia. 722 21 & 22 VICT. c. 90.— B. C, GOA^EENMENT OF. [isjn An Act to provide for the Government of British Columbia. [2nd Aug. 1858.] " T"17 IIEREAS divers of Her Majesty's sul)jocts and * * others heave, hy the hcense and consont of Hoi- Majesty, resorted to and settled on certain wM and unoccnpied territories on the north-west coast of Noiik America, commonly known hy the desif^nation of Xew Caledonia, and from and after the passing of this Act to he named British Columhia, and the islands adjacent. for mining and other purposes ; and it is desiraljle to make some temporary provision for the ci\il govern- ment of such territories, vmtil permanent sottloraents shall he thereupon established, and the iuiinl)ci' of colonists increased:" Be it therefore enacted l)y tlic Queen's most Excellent Majesty, hy and Avith the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. British Columhia shall, for the purposes of this Act, be held to comprise all such territories within the dominions of Her Majesty as are bounded to tho south bv the frontier of the United States of Americo. to the cast by the main chain of the llocky ^loimtains, to the north by Simpson's Uiver and the Einlay Branch of the Peace lliver, and to the west by the Pacitic Ocean, and shall include Queen Charlotte's Island, and all other islands adjacent to the said territories, except as herein-after excepted. 2. It shall be lawful for Her Majesty, by any order or orders to be by her from time to time made, with tho advice of her Privy Council, to make, ordain, and establish, and (subject to such conditions or restrictions as to her shall seem meet) to authorize and empower such officer as she may from time to time api)oint as Governor of British Columbia, to make pro^"ision for the administration of justice therein, and generally to 1858.] 21 & 22 VICT. c. Of) -CRIME TTST INDIAN" TER. 723 make, ordain, and establish all such laws, institutions, and ordinances as may be necessary for the peace, order, and ffood government of Her Majesty's subjects and others therein ; provided that all such Orders in Council, and all laws and ordinances so to be made as aforesiiid, slmll be laid before both Houses of Parliament as soon as conveniently may ])c after the makincf and enact- ment thereof respectively. 3. Provided always, That it shall be lawful for Her "'''• Majesty "• •' , , may establish a Majesty, so soon as she may deem it convenient, by any locni Legisia- sucli Order in Council as aforesaid to constitute or to Columbia, authorize and empower such officer to constitute a Legislature to make laws for the peace, order, and good government of British Columbia, such Legislature to consist of the Governor and a Council, or Council and Asseml)ly, to be composed of such and so many persons, and to he appointed, or elected in such manner and for such periods, and subject to such regulations, as to Her Majesty may seem expedient. 4. " And whereas an Act was passed in the Certain pro- ^ visions of forty -third year of King George the Third, intituled 43 Geo. 3. 'An Act for extending the Jurisdiction of the Courts i"&2'glo. 4. of Justice in the Provinces of Lower and Upper Bridshcdum! Canada to the Trial and Punishment of Persons guilty ^''* "i"^"'"'- of Crimes and OfEences Avithin certain Parts of North America adjoining to the said Provinces :' And whereas by an Act passed in the second, year of King George the Fourth, intituled * An Act for regulating the Fur Trade, and establishing a Criminal and Civil Juris- diction within certain parts of North America,'' it was enacted, that from and after the passing of that Act the vJourts of Judicature then existing or which might be thereafter established in the province of Tipper Canada should have the same civil jurisdiction, power, and authority, within the Indian territories and other parts of America, not within the limits of either of the j)rovinces of Lower or Tipper Canada, or of any z z 2 ^ ii H U\ •t!«t«(»(*™M»f«»««'W»'*«»«<'"«''''^ '><«>•■♦»«••'«»*'+«'-'' WW I' I 5 n i 72 1 21 .^ 22 VICT. 0. 99.— TRIAL OF MURDER CASES, [igg^ civil £?oA-(>rnmont of tlio United States, as the s '■ ■ "1 * '1 '. . . t '' ' i ! 1 :! ■■ 1 ii : \ i ■ i':r , I 1 f . : Mi 1 i ' M ii ^ : t ■ ) 1 i ' ^ M 1 ' li 1.1 :lMi|| 1 Hi i--i ; . ■- •1:';.'' : : i .' 1 \- . 1 Ill V r : Ju!«tici'a of the jiuncc in tin.' ilritish Amorifim Indiiin Torrito- rios authorized to try offincus summarily, nnd punish liy fine or imprison- nu'nt. 7.*iO 22 >\L 2.{ VICT. c. 2(5.— J.P.'s IN HHITISH AM EH. [i«5o ill tlic said Indian territories, and such other parts us al'ovesaid ol' America, and also to make ])r()vision foi- better rejjidatin^ trade with the Indians in the tciritorjcs and j)P"t.s aforesaid :" Bo it therefore enacted l)v the Queen .-^ most ExceUent Majesty, hy and witli thcadvico and con.sent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and l)v the authority of the same, as follows : 1. It shall ])e laAvful for Iler Majesty, by the com. mission by Avhich any justices of the peace are appointed under the said Act of Kint? Georc^o the ]ject to all enactments and regulations for the time being in force for the discipline of the Royal Navy. Volunteers to form part of Koyiil Niiviil Reserve. 4. Volunteers raised as aforesaid in any colony shall form part of the Royal Naval Reserve, in addition to the volunteers who may be raised under the Act of 1859, but, except as in this Act expressly provided, shall he subject exclusively to the provisions made as aforesaid, by the proper legislative authority of the colony. Power to Admiralty to issue special commissions. 5. It shall be lawful for Her Majesty in Council from time to time as occasion requires, and on such conditions as seem fit, to auth .ize the Admiralty to 1^65] 28 & 29 VICT, c 1 ^.— COL. WAll SHIPS. 737 issue to any officer of the Royal Navy volunteering for the purpose a special commission for service in accord- ance with the provisions of this Act. 6. It shall he lawful for Her Majesty in Council from time to time as occasion requires, and on such conditions as seem fit, to authorize the Admiralty to accept any offer for the time heing made or to he mad(; bvthe Government of a colony, to place at Her Majesty's disposal any vessel of war provided hy that Government and the men and officers from time to time serving therein; and while any vessel accepted hy the Admiralty under such authority is at the disposal of Her ]\rajesty, sncli vessel shall he deemed to all intents a vessel of war of tlie Royal Navy, and the men and officers from tim(» to time serving in such vessel .shall he deemed to all intents men and officers of the Royal Navy, and shall accordingly he sid)ject to all enao*"*ents and regulations tor the time heing in force for the discipline of the Royal Navy. 7. It shall he lawful for Iler Maj(^sty in Council from time to time as occasion requires, and on such conditions as seem fit, to authorize the Admiralty to accept any offer for the time heing made or to be mado by the Government of a colony, to ])laceat Her Majesty's disposal for g(!neral service in the Royal Navy the whole or any part of the body of volunteers with all or any of the officers raised and appointed by that Government in accordance a\ ith the provisions of this Act ; aiid when any such oft'er is accepted such of the provisions of the Act of 1859 as relate to men of the Royal Naval Reserve raised in the United Kingdom when in actual service shall extend and apply to the voliuiteers whose services are so accepted. 8. The Admiralty may, if they think fit, from time to time by warrant authorize any officer of Her^rajesty's Navy of the rank of captain or of a highcn' rank to exercise, in the name and on behalf of the Admiralty, » 2340. 3 ▲ Placing of colonial vessel with men aiid officers at Her Majesty's dis- l"lSill. As to services of volunteers and officers in Navy. Delegation of Admiralty powers to naval officer. i I ' i !'^1 II I I ' I' I I ' f I I! 3 n i f I' MHilfl'l I'tm ',> n"-ji«'e. 3. No colonial law shall be or be deemed to have Coioniaiiaw been void or inoperative on the ground of repugnancy forrep^ugnlncy to the law of England, unless the same shall be repug- nant to the provisions of some such Act of Parliament, order, or regulation as aforesaid. 3 A 2 "Legislature," " Colonial Legislature :" " Representa- tive Lccis- lature :' " Coloniii! Law :" Act of Pur- liument, &c. to extend to colony when made appli- cable to such colony ; "Governor:" " Letters Patent." \W. M :i 4 I' i II i it 1 ;■ 1 ll' ■ ;■ - ■ i ■ ! I 1 ;i If 740 28 & 20 VICT. p. «3.— CERT. COPIES OF LAWS. riHt!5. fr^fi Colonial luw not void for iiK'unsisU'iR'y with in- t^tructiuns. Colonial Legis- lature may establish, &c. courts of law. Kepresentative liegislature may alter con- stitution. Certified copies of laws to bo evidence that they are properly passed. 4. Xo colonial law, passed with the concuvvence of or assented to by the Governor of any colony, or to l)e hereafter so passed or assented to, shall be or be deemed to have been void or inoperative by reason only of anv instructions Avith reference to such law or the subject thereof which may have beer, given to such Governor by or on behalf of Her Majesty, by any instrument other than the letters patent or instrument authorizing such Governor to concur in passing or to assent to laws for the peace, order, and good government of such colony even though such instructions may be referred to in such letters patent or last-mentioned instrument. 5. Every Colonial Legislature shall have, and be deemed at all times to have had, full power within its jurisdiction to establish courts of judicature, ard to abolish and reconstitute the same, and to alter the con- stitution thereof, and to make provision for the adminis- tration of justice therein; and every representative Legislature shall, in respect to the colony under its jurisdiction, liaA'e, and bo deemed at all times to have bad, full power to make laws respecting tlie constitution. powers, and procedure of such Legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent. Order in Council, or colonial law for the time being in force in the said colony. 6. The certificate of the clerk or other proper officer of a legislative body in any colony to the effect that the document to which it is attached is a true copy of any colonial law assented to by the Governor of such colony, or of any Bill reserved for the signification of Her Ma- jesty's pleasure by the said Governor, shall be prima facie evidence that the document so certified is a true copy of such law or Bill, and, as the case may be, that such law has been duly and properly passed and assented to, or that such Bill has been duly and properly passed and presented to the Governor ; and any proclamation mh.] 28 & 29 VICT. c. 64 —MARRIAGE LAWS. 741 nurporting to be published by authority of the Governor P'^'-i'ini'ition ill any newspaper in the colony to which such law or of As-sintunJ bill shall relate, and signifying Her Majesty's disallow- ance of any such colonial law, or Her Majesty's assent to any sucli reserved Bill as aforesaid, shall be prima facie evidence of such disallowance or assent. " And whereas doubts are entertained respecting the validity of eci'tain .Vets enacted or reputed to be enacted by the Legislature of South Australia:'' Be it further enacted as follows : 7. All laws or reinited laws enacted or purporting to certain A(•t^' liave been enacted by the said Legislature, or by persons Lcg^sllniro or bodies of persons for the time being acting as such Australia to Legislature, which have received the assent of Her ^^ovniid. Majesty in Council, or Avhich have received the assent of the Governor of the said colony in the name and on behalf of Her Majesty, shall be and be deemed to have been valid and effectual from the date of such assent for all purposes whatever ; provided that nothing herein contained shall be deemed to give effect to any law or reputed law which has been disallowed by Her Majesty, or has expired, or has been lawfully repealed, or to pre- vent the lawful disallowance or repeal of any law.^ * See for definition of Colonial Legislature, Long i-. The Bishop of Cape Town, 1 Moo. P.C. N.S. 411 ; [n re Bishop of Natal, 3 Moo. P.C. N^S. 115; Keg. v. Burah, 3 App. t'as. 889 J Hodge v. Reg., 9 App. Cas. 117 ; Powell v. Apollo Cau- dle Coy, 10 App. Cas. 282; and Strong, J., in Merchants' Bank of Halifax v. Gillespie, 10 S.C.R. p. 324 ; Att.-Geu. of Canada r. Flint, 16 S.C.R. 707. i M 28 & 29 VICT. c. 64. Preamble and to " same as follows " repealed by S. L. R. Act, 1893, 56 Vict. c. 14. An Act to remove Doubts respecting the Validity of certain Marriages contracted in Her Majesty's possessions abroad. [29th June 1865.] WHEREAS laws have from time to time been made by the legislatures of divers of Her I :» Mt ^1 "fW«>fi«ii«n»rT55,r»»;mi»M4f4Si. ! i Colonial laws establishiiifr Tnliility of miiiTiiiReH to hiivo cffoct throufrhout Hit Majesty's (lomiiiioiis. Dofinitioii H 31. The Qt'neral Parlmment may also, from time to time, estnhlish additional courts, and the General Government may appoint judircs and officers thereof, when the same shall appear necessary or for tbe^iniblic advantage, in order to the due execution of the laws of Parliament. 32. All courts, judges, and officers of the several provinces shall aid assist, and obey the General Government in the exercise of its rights aiui powers, and for such purposes shall be held to be courts, judges and officers of the General Government. 33. The General Government shall appoint and pay the ju(lnre.s of the superior courts in each province, and of the County Courts of Uiiix-r Canada, and Parliament shall fix their salaries. 34. Until the consolidation of the laws of Upper Canada, A^etr Bruu^. wick, Nova Scotia, Neivfoundland, and Prince Ednard Fshmd the judges of these provinces appointed by the General Government shall lie selected from their respective bars. 35. The judges of the courts of Lower Canada shall be selected from the bar of Lower Canada. 36. The judges of the Court of Admiralty now receiving snlaries .slinll be paid by the General Government. 37. The judges of the .superior courts shall hold their oflicps diirin" good behaviour, and shall be removable only on the address of both Houses of Parliament. Local Government. 38. For each of the provinces there shall be an executive officer styled the Lieutenant-Governor who shall bo nj)pointed by the Governor- General in Council, under the great seal of the federated province!!, dminir pleasure ; such pleasure not tc Oe exercised before the e.xjjiration of tiie first five years, except for (ause; such cause to be coiiimnnicnted in writing to the Lieutenant-Governor immediately after the exercise of the pleasure as aforesaid, and also by messages to both Houses of Pariia- ment, within the first week of the first session afterwards. 39. The Lieutenant-Governor of each province shall be paid by the General Government. 40. In imdertaking to pay the .salaries of the Lieutenant-Governors, the Conference does not desire to prejudice the claim of Prince Eduard Island upon the Imperial Government for the amount now paid fortiic salary of the Lieutenunt-Cirovernor thereof. 41. The local Government and Legislature of each province shall lie constructed in such manner as the existing Legislature of such inovince shall provide. 42. The local Legislatures shall have power to alter or amend tlieir constitution from time to time. 43. The local Legislatures shall have power to make laws respecting the following subjects : 1. Direct taxation and the imposition of duties on the export of timber, logs, masts, spars, deals, and sawn lumber, and of coals and other minerals. 2. Borrowing money on the creilit of the province. 3. The establishment and tenure of local offices, and the apiwint- ment and payment of local officers. 4. Agriculture. 6. Immigration. 6. Education ; saving the rights ami privileges which the Protestant or Catholic minority in both Canadas may possess as to their denominational schools, at the time when the union goes into operation. or iiniend their Besl. 1864] 30 & 31 VICT. c. 3.— POWER OF PARDON. 751 7. The sale and management of public lands, excepting lands belonging to the General Government. 8. Sea-coast and inland fisheries. 9. The establishment, maintenance, and management of peni- tentiaries, and of public and reformatory prisons. 10. The establishment, maintenance, and management of hospitals, asylums, charities, and eleemosynary institutions. 11. Municipal institutions. 12. Shop, saloon, tavern, auctioneer, and other licences. 13. Local works. 14. The incorporation of private or local companies, except such as relate to matters assigned to the General Parliament. 15. Property and civil rights, excepting those portions thereof assigned to the General Parliament. 16. Inflicting punishment by fine, penalties, imprisonment or otherwise, for the breach of laws passed in relation to any subject within their jurisdiction. 17. The administration of justice, including the constitution, maintenance, and organization of the courts — both of civil and criminal jurisdiction, and including also the procedure in civil matters. 18. And generally all matters of a private or local nature, not assigned to the General Parliament. 44. Tae power of respiting, reprieving, and pardoning prisoners convicted of crimes, and of commuting and remitting of sentences in wliole or in part, which belongs of right to the Crown, shall be admi- nistered by the Lieutenant-Governor of each province in Council, subject to any instructions he may from time to time receive from the General Government, and subject to any provisions that may be made in this behalf by the General Parliament. Miscellaneous. 45. In regard to all subjects over which jurisdiction belongs to both the general and local Legislatures, the laws of the General Parliament shall control and supersede those made by the local Legislature, and the latter shall be void as far as they are repugnant to or inconsistent with the former. 46. Both the English and French languages may be employed in the General Parliament and in its proceedings, and in the local Legislature of Lower Canada, and also in the federal courts and in the courts of Loioer Canada. 47. No lands or property belonging to the general or local Govern- ment shall be liable to taxation. 48. All Bills for appropriating any part of the public revenue, or for imposing any new tax or impost, shall originate in the House of Commons or the House of Assembly, as the case may be. 49. The House of Commons or House of Assembly shall not ori- ginate or pass any vote, resolution, address or Bill for the appropriation of any part of the public revenue, or of any tax or impost to any purpose, not first recommended by message of the Governor-General, or the Lieutenant-Governor, as the case may be, during the session in which such vote, resolution, address, or Bill is passed. 50. Any Bill of the General Parliament may be reserved in the usual manner for Her Majesty's assent, and any Bill of the local Legislatures may iu like manner be reserved for the consideration of the Governor- General. ft i 'i \ !■ I M i^ iw»t9Wiwww»wtwi4H»»w«imi«wt«a«(iBBi*q»i^^ 1 M ! 11 1 1 ;! ilil \ '•^ ill 3 1 I I i i iTI?'! 752 30 & 31 VlfT. c. 3— MINES & MINERALS. [Resl. mi 51. Any Bill passed by the Gonerul Parliumcnt slinll be subject to disallowance by Her Majesty within two years, as in the caso of Billii passed by the Legishitures of the said provinces jitiurto, and in like manner any Bill passed by a local Legislature shall be .subject to (lis- allowance by the Governor-General within one year after the passing thereof. 52. The seat of government of the federated provinces shall he Ottawa, subject to tlie Koyal Prerogative. 53. Subject to any future action of tlie respective local Governments, the seat of the local Government in Upper Canada shall be Toronto ; of Lower Canada, Quebec; and the beats of the local Governments in the other provinces shall be as at present. Property and Liabilities. 54. All stocks, cash, barkers' balances and securities for money belonging to each province, at the time of the union, except as herein- afttr naentioned, shall belong to the General Government. The following public works and property of each province slinll ^ *o the General Government j to wit : — 6 9 10 1 . Canals ; 2. Public harbours ; 3. Lif;hthouses and piers ; Ste.' ' .\ts, dredges, and public ves.sels ; 5. Riv. r iird lake improvements; Railway anil railway stocks, mortgages, and other debts due liv railway companies ; 7. Military roads ; 8. Custom houses, post offices, and other public buildings, execiit such as may be set aside by the General Government for the use of the local Legislatures and Governments; Property transferred by the Imperial Government, and known as Ordnance property ; Armouries, drill sheds, militju-y clothing, and muuitious of war; and Lands set apart for public purposes. 11 36. All lands, mines, minerals, and royalties vested in Her Majesty in the provinces of Upper Canada, Lower Canada, Nova Scotia, New Brunswick, and Prince Eduard Island, for the use of such provinces, shall belong to the local Government of the territory in which the .«ame are so situate ; subject to any trusts that may exist in respect to any of such lands, or to any interest of other persons in respect of the same. 57. All sums due from purchasers or lessees of such lands, mines, or minerals, at the time of the union, shall also belong to the local Governments. 58. All assets connected with such portions of the public debt of any province as are assumed by the local Governments, shall also belong to those Governments respectively. 59. The several provinces shall retain nil other public property therein, subject to the right of the General Government to assume any lands or public property required for fortifications or the defence of the country. . 60. The General Government shall assume all the debts and liabilities of each province. sr debts due bv I munitions of blic debt of anr Resl. 1864] 30 8t 31 VICT. c. 3.— DEBTS OF PROVS. 763 61. The debt of Canada not specially assumed by Upper and Lower Canada resi)ectively, shall not exceed at the time of the union .'«62,500,000 Nova Scotia shall enter the union with a debt not pxccedinK 8,(K)0,000 And Neio Brunswick, with a debt not exceeding - 7,000,000 62. In case Xova Scotia or New Brunswick do not incur liabilities beyond tiiose for which their Governments are now bound, and which shall maki) their debts at the date of union less than .'?8,000,000 and S7 000,000, respectively, they shall be entitled to interest at 5 per cent. on the amount not so incurred, in like manner as is herein-after provided for XenJoioKlland and Prince Edward Island ; the foregoing resolution Ijoiii" in no respect intended to limit the powers given to the respective Governments of those provinces by legislative authority, but only to limit the miixinnini amount of charge to be assumed by the General Government, irovided always that the powers so conferred by the lespectivt' Legislatures shall be exercised within five years from this ilatp, or the .'^ame shall tlion lapse. 0.3. Xewfoundland and Prince Edward Island, not having incurred (lelits eqiiiil to those of the other provinces, shall be entitled to receive, liv Imlf-vi'iuiy payments in advance from the General Government, the interest nt five per cent, on the difiference between the actual amount of tlieir respective debts at the time of the union, and the average amount of indebtedness per head of the i)opulation of Canada, Nova Scotia, and ycu- Brunswick. (il. In consideration of the transfer to the General Parlinment of the powers of ta.\ation, an annual grant in aid of each province shall be made, equal to 80 cents per head of the population, as e.stabiislied l)y the census of IH61, the population of Newfoundland being estimated at 130,000. Such aid shall be in full settlement of all future demands upon tlie Goneial Government for local purposes, and shall be paid half- yearly in advance to each province. 65. The pfisition of New Brunstoick being such as to entail large immediate eharges upon her local revenues, it is agreed that for the period of 10 years from the time when the union takes effect, an addi- tional allowance of 363,000 per annum shall be made to timt province. But that so long as the liability of that province I'cnmins under $7,000,000, a deduction equal to the interest on such deficiency shall be made from tiie S(j3,000. 66. Ill consideration of the sunvnder to the General Government by XewfoiDidlaud of all its rights in mines and minerals, and of all the uDgranted and unoccupied lands of the Crown, it is agreed that the sum of 8150,000 shall each year be paid to that province by semi-annual piiymcnts. Provided that that colony shall retain the right of opening, constructing, and controlling roads and bridges through any of the saicl lands, subject to any laws which the General Parliament nmy pass in respect of the same.' 67. All engagements that may, before the union, be entered into witli tlie Imperial Government for the defence of the country, shall be assumed by the General Government. 68. The General Government shall secure, without delay, the com- pletion of the Inter-colonial Railway from Jiivi^re-dn-Loup through New Brunswick to Truro in N^ova Scotia. 69. The communications with the North-western Territory, and the improvements required for the dexelopraent of the trade of the Great West with tile seaboard, are regarded by this Conference as subjects of S2310. 3 B m > i i M ■ I i I ' !'3 ..' iT 1 ' :>•■*.* rH*r^^A^t.h,jil'lit m«(»'»Kwmii+vni..Mt« Medical upon proof, in sucli mnnner as tlie said Colonial Legislatiiie shall direct, ■^*^'* of his registration un into effect the provisions of the said British North America Act, 1867, and of admitting Rupert's Land into the said dominion as aforesaid upon such terms as Ihn' Miijestv thinks fit to approve, it is expedient that tlio said lands, territories, rights, privileges, liherties, francliises, ])o\veis, and authorities, so far as the same hav(^ been laAvt'nlly granted to the said Company, shouhl be surrendtned to Her Majesty, her heirs and successors, upon such teims and conditions as may be agreed upon by and l)etweeu Her Majesty and the said Governor and Company as herein-after mentioned :" Be it therefore enacted by the Queen's most Excelbnt Majesty, 1)y and Avith the advice and consent of the Lords Spintual and Temporal, and Commons, in this present Parliament assembled, and by the autliovity ol' the same, as follows : 1. This Act may be cited as " Bupert's Land Act, 1868." Definition of 2. For the purposes of this Act the term " Bujmi'n Land." Land " shall include the whole of the lands and tovvi- tories held or claimed to be held by the said Govevnov and Company. Power to H. r 3^ It shall he competent for the said (Tovornor and Majesty to ^ icceptsur- Company to surreiuler to Her Majestv, and lor ITev i-ender of land.-i, -.yr • , 1 • , j i i '• 11 &c. of the Com Majesty by any uistrument under her sign manual and {nin"*^trrm9! *^'^" siguct to acccpt a Surrender of all or any of the lands, territories, rights, privileges, liberties, franchises, powers, and authorities Avhatsoever granted or purported to he granted by the said Letters Patent to the said Governor and Company within Rupert's Land, upon such terms and conditions as shall be agreed upon by and between Her Majesty and the said Governor and Company ; provided, however, that such surrender shall not he accepted by Her Majesty until the terms and conditions upon which Rupert's Land shall be admitted into the said Dominion of Canada shall have been approved of ^^ 1808] 31 & 32 VICT. c. 106.—" TUADE AND COMMERCE." 767 bv Her Majesty, and embodied in an address to Her Majesty from both the Houses of the Parliament of Canada in pursuance of the one hundred and forty- sixth section of the British North America Act, 1867 ; aud that the said surrender and acceptance thereof shall l)e null and void vuiless within a month from the date of such acceptance Her Majesty does by order in Council under the provisions of the said last-recited Act admit Eupeit'sLand into the said Dominion ; provided further, that no charge shall be imposed by such terms upon the Consolidated Tund of the United Kingdom. 4. Upon the acceptance by H- ;• Majesty of such jf,^^"f"if^" surrender, all rights of government and proprietary jights of the rights, and all other privileges, liberties, franchises, powers, and authorities whatsoever, granted or purported to])e granted by the said Letters Patent to the said Gov- ernor and Company within MuperVs Land, and which shall have been so surrendered, shall be absolutely ex- tinguished; provided that nothing herein contained shall prevent the said Governor and Company from con- tinuing to carry on in JRupert^s Land or elsewhere trade and commerce. Company. 3. It shall be competent to Her Majesty by any such order or orders in Council as aforesaid, on address from the Houses of the Parliament of Canada, to declare that Rtq)ert^ s Land shall, from. 8l date to be therein mentioned, he admitted into and become part of the Dominion of Canada; and thereupon it shall be lawful for the Par- liament of Canada from the date aforesaid to make, ordain, and establish within the land and territory so admitted as aforesaid all such laws, institutions, and ordinances, and to constitute such courts and ofl&cers, as may be necessary for the peace, order, and good government of Her Majesty's subjects and others therein : Provided that, until otherwise enacted by the said Par- liament of Canada, all the powers, authorities, and juris- diction of the several Courts of Justice now established Power to Her Majesty by order in Coun- cil to admit Rupert s Land into iind form part of the Dominion of Canada. Jurisdiction of present courts and oflBcei-s continued. 1 i I nt iii' I! ¥• 3 ( ' ll :i hi I i i''^ s}K»wq»a»af5n«»fan»«!Ji«tttiw»wjtm«»«B'«w»nm«}«H«' If Shoit title. 768 31 & 32 VICT. c. 129.— COL. SURVEYORS. [i^es. in Rupert's Land, and of the several officcr.s thereof, and. of all magistrates and justices now actini? within the said limits, shall continue in full force and effect therein. iSee 32 k 33 Vict. c. 101 .] 31 & 32 VICT. (1868) c. 129. [From "Be it enacted" to "same as follows" repealed by S. L. R. Act, 1893, 66 Vict. c. 11.] Repealed hy Merchant Shipping Act, 1891-, 57 &o8 A'^ict. c. 60., 22 sehedulo ; hut see sees. 90 & 727 <>f that Act, post, where this Act is in effect re-cnact(Ml. This was an Act to am(>nd the law relating to the registration of ships in Briti.sh possessions, and the appointment of surveyors in the colonies. 32 & 33 VICT. (1869) c. 10. Sees. 3 & 8 repealed by S. L. R. Act, 1883 (No. 1), & 47 Vict. c. 39. Amended by 47 & 48 Vict. c. 31, Preamble and to " same, as foUows " repealed by S. L. E. Act, 1893 (No. 2), 56 & 57 Vict. c. 54. An Act for authorizing the Kemoval of Prisoners from one Colony to another for the purposes of Punishment. \\'dth May 1869.] WHEREAS it is expedient to amend the law re- lating to the removal of prisoners from one colony to another for the purposes of punishment : Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Tempoml, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: 1. This Act may be cited for all purposes as "The Colonial Prisoners Removal Act, 1869." I860.] ;»2 & 33 VKT. «•. 10— REMOVAL OF I'RISONRHS. 7^9 2. For the purposes of this Act — The term " colony " shall not includt^ any place Uifiiiitiou of within the United Kingdom, the lale of Man, or ..'cobny:" the Channel Islands, or within such territories as may for the time heing be vested in Her Majesty by virtue of any Act of Parliament for the govern- ment of India, but shall include any plantation, territory, or settlement situate elsewhere within Her Majesty's dominions, and subi(;ct to the same local government ; and for the purposes of this Act all plantations, territories, and settlements under a central legislature shall j . deericd to be one colony under the same local govc.nment: Tiio term "governor" shall include the officer for "Oovcmor:" the time being administering the government of any colony : The term "legislative body" shall mean any house " Legisi'itivc of assembly or other body of persons having legis- lative powers in the colony, and where such ')ody of persons consists of two separate houses it shall include both houses, and where there are local le- gislative bodies as well as a central legislative body shall mean the central legislative body only. 3. The foui-th section of the Act passed in the sixth ^^'■'- ^ "^ year of the reign of His late Majesty King George the repetiiod. Fourth, intituled " An Act for punishing offences com- mitted by transports kept to labour in the colonies, and better regulating the powers of justices of the peace in New South Wales," is hereby repealed, except so far as may be necessary for supporting or continuing any pro- ceedings taken thereunder. 4. Any two colonies may, with the sanction of an Pri^ollcri< mny Order of Her Majesty in Council, agree for the removal from one of any prisoners under sentence or order of transporta- Unou'ur for tion, imprisonment, or penal servitude from one of such ^^n^g^^cnt colonies to the other for the purpose of their undergoing in such other colony the whole or any part of their i| I ! HtJ}BR(H»BWw;w«i'w«ittafR!t?»riit«sM(i«mw««^ i m j^fr: ■ 1 760 32 & 33 VICT. c. 10.— REMOVAL OF PRISONERS. [1^69 Removal of prisoners to 1 • by warrant. Prisoner in legal custody during re- moval. punlshnieut, and for the return of such prisoners to the former colony at the exj)iration of their punishnient, ov at such other period as may he agreed upon, upon such terms and suhject to such conditions as may seem oootl to the said colonies. The sanction of the Order of Her Majesty in Council may he ohtained, in the case of a colony havinn; a lewis. lative hody, on an address of such hody to llev Majesty. and in the case of any colony not having a legislative hody, on an addw^ss of the Governor of such colony ; and such sanction shall he in force as soon as such Oidorin Council has heen published in the colony to which it relates. The agreement of any one colony with anotliev shall for the purposes o^ tliis Act he testified by a Avriting imder the hand of the Governor of such colony. 5. Where the sanction of Her Majesty has hon\ given to any siu'h agreement as aforesaid relating to the re- moval of prisoners from one colony to another for the purpose of undergoing their punishment, any prisouei's under sentence or order of transportation, imprisonment, or penal servitude may be removed from such one colony to tlie other under the authority of a warrant signed hy the Governor, and addressed to the master of any ship, or any other person or persons ; and the person or per- sons to whom such warrant is addressed shall have power to convey the prisoner therein named to such other colony, and to deliver him when there into the custody of any authority designated in such warrant, or em- powered by the Governor of such last-mentioned colony to receive such prisoner. 6. Every prisoner shall, from the time of his leaving his prison in one colony to ihe time of his reaching liis })rison in the other colony, be deemed to be in the legal custody of the person or persons empowered to remove him, and to be subject to the same restraint, and, in the event of misbeha>iour, to the same punishment, as 18«9.] 32 & 33 VIOT. 0. 10.— '< LEGAL " CUSTODY. 761 if he had continued in prison, and as if the person or persons empowered to remove him were the gaoler or gaolers of such prison ; and if he escape or attempt to escape from such custody, such i)risoiier and every per- son aiding or attempting to aid him in such escape, sliall he subject to the same punishment as if such escape or attempt to escape were an escape or attempt to escjipe from prison. A prison shall mean any place of confinement or any place where the prisoners undergo i)unishment. Any person punishable uiuler this section may be tried and punished either in the colony from Avhich the prisoner is being removed, or in the colony to which he is being removed ; and the law applicable to such per- son shall be the law of the colony in which he is tried. 7. Every prisoner shall, upon his delivery to the Li«wiityof I'.ip , .,.. , prisoner in person having lawful authority to receive; him in the colony to which colony to wliich he is removed, be subjc^ct witliin such colony to the same laws and regidations, and shall be dealt with in all respects in the same manner, as if he had been tried and received the same sentence in such colony as the sentence which has been passed on him in the colony from which he is removed. 8. And Avhereas from time to time divers prisoners Removals here- , „ -rr tr ' »i« tofore Blade to nave been removed from one of Her Majesty s colonies be valid for all to another, and doubts have been entertained whether p"^"*** • . such removals were legal, and how far such prisoners could be legally dealt with in the colonies to which they have been removed, and it is expedient that such doubts should be removed : Be it enacted as follows : The removal of any prisoner heretofore made from one colony to another by or under the authority of the Governor of either of such colonies, and any act done in relation to such removal by or under such authority, and the detention, custody, and treatment in either colony of the prisoner so removed, shall be deemed to have been as lawful and effectual for all pui'poses what- III If |vM' ■i f it 81 & 32 Vict. e. lOo. 762 32 & 33 VICT. c. 101.— RUPERT'S LAND LOAN. [1869. soever as if this Act had been passed at the time of such removal, and had been in force in respect of both the colonies referred to in this section, and such removal had been duly made in pursuance of this Act. [liSeepost, 47 & 48 Vict. c. 31.] 32 & 33 VICT. (1869) c. 11. Amended by 46 & 47 Vict. c. 41. Sec. 6 repealed by S. L. R. 1883, and certain Avords repealed by S. L. E. Act No. 2, 1893, c. 54. Finally whole Act re- pealed by Merchant Shipping Act, 1894, 57 & 58 Vict. c. 60. This was an Act for amending the LaAV relating to the Coasting Trade and Merchant Shipping in British Possessions, and its chief enactr"^nts were re-enacted in the Merchant Shipping Act of 1894, sees. 736 and 102. 32 & 33 VICT. (1869) c. 101. Preamble and to "same as follows" repealed by S. L. R. Act No. 2, 1893, 56 & 57 Vict. c. 54. An Act for authorizing a Guarantee of a Loan to bo raised by Canada for a payment in respect of the transfer of Rupert's Land. [11th Any, 1869.] WHEREAS by the Eiijjert's Zand Act, 1868, power wiis },'iveii for the GoMTUor and Company of A(lventurer.>s of Engluiid tnuliii;; into Hudson's Hay (in this Act referred to as the Hudson's Buy Com- pany) to surrender, and for Her Majesty to accept a surrcuik'r of Jtupert's Land (as therein defined) for the purpose of admitting the same into the dominion of Canada : And wliereas an arrangement has been made for the surrender b) the Hudson's Bay Company of Ruperfs Land and for the admission thereof into the dominion of Canada : And whereas part of the terms of the said armngeuieut were the payment of three hun(hed thousand pounds to the Hudson's Bay Company by the Government of Canada: And whereas the Government of Canada propose to raise the said sum of three hundred thousand pounds by way of loan, and it is exiiedient to authorize the Commissioners of Her Majesty's Treasury, in this Act referred to as the Treasury, to guarantee the interest of such loan : Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spii'itual and Temporal, and Couimons, ] 32 & 33 VICT. c. 101.— GUARANTY OF LOAN. 763 in this present Parliament assembled, anil by the authority of the same, as follows : 1. Tliis Act may be cited as " The Canada {Rupert's Land) Loan short title. ' Act! 1869." 2. The Treasury may guarantee, in such manner and form as they power to think fit, the payment of the interest, at a rate not exceeding four per Treasury to cent., on any principal money not exceeding the sum of three hundred guarantee loan, thousand pounds sterling to be raised by way of loan by the Government of Canada for the purpose of the said payment to the Hudson's Bay Company. 3. The Treasury shall not give any guarantee under this Act unless Conditions of luul until provision is made by an Act of the Parliament of Canada or guarantee, otherwise to the sjitisfaction of the Treasury — (1.) For raising and appropriating the said loan : (2.) For charging the consolidated revenu'; fund of Canada with the payment of the princip-il and iiiterest of the said loan imme- diately after the charge of the loan for fortifications created by au Act of the Parliament of Canada of the year one thousand eight hundred and sixty-eight, chapter forty-one, or to be created by any subsequent Act in respect of sums paid out of the Consolidated Fund of the United Kingdom on account of such last-mentioned loan : (3.) For payment by the Government of Canada of a sinking fund at the rate of one jjer centum per annum on the entire amount of the said loan, and for charging the consolidated revenue fund of Canada with the payment of such sinking fund immediately after the principal and interest of the said loan : (4.) For charging the consolidated revenue fund of Canada with any sum issued out of the Consolidated Fund of the United Kingdom under this Act, with interest thereon at the rate of five per centum per annum, immediately after the sinking fund of the said loan : (5.) For payment of the money raised by the said loan to four trustees, nominated from time to time, two by the Treasury and two by the Government of Canada, and for the application of such money under the direction of those trustees : (6.) For remitting to the Treasury the annual sums for the sinking fund by equal half-yearly payments, in such manner as they from time to time direct, and for the investment and accumula- tion thereof under their direction in the names of four trustees nominated from time to time, two by the Treasury and two by the Government of Canada. 4. The said sinking fund may be invested only in such securities as Application of the Government of Canada and the Treasury from time to time agree sinking fund, upon, and shall be applied from time to time, under the direction of the Treasury, in discharging the principal of the said loan and the interest arising from such securities, and the resulting income thereof shall be invested and applied an part of such sinking fund. 5. Every Act passed by the Parliament of Canada which in any way Alteration of impairs the priority of the charge upon the consolidated revenue fund of Act relating to Canada created by that Parliament of the said loan and the interest annme, us follows : 1. The Act may be cited for all purposes as " The Naturalization Aft, 1870." Status of Aliens in the United Kingdom. 2. Real and personal property of every description may be taken, ae- quired^ held, and disposed of by an alien in the same manner in all reelects »s by a natmal-boru British subject; and a title to real AHd 1870.] 33 & 34 VICT, c 14.— BRT. STTBJ. AS ALIEN. 765 iralizatioii Act, personal property of every description may be derived through, from, or in succession to an alien, in the same manner in nil re.si)ect3 as through. from, or in succession to a natural-born British subject : Provided, — (I.) Tliat this section shall not confer any right on an alien to hold real pro[)erty situate out of the United Kingdom, and shall not ([ualify an alien for any office or for any municipal, parliamen- tary, or other franchise : (1) Tliatthis section shall not entitle an alien to any right or privilege as a British subject, except s\ich rights and privileges in res|)ect of pro[)erty as are hereby expressly given to him : (3.) That this section shall not afPect any estnte or interest in real or per.sonal property to which any person has or may l)ecome en- titled, either mediately or immediately, in possession or expect- ancy, in pursuance of any disposition made before the passing of this Act, or in j)ursuauce of any devolution by law on the death of any person tlying before the passing of this Act. 3. Where Her Majesty has entered into a convention with any foreign state to tiic effect that the subjects or citizens of that state who have been natunilized as British subjects may divest themselves of their status as such sul),!' *s, it shall be lawful for Her Majesty, by Order in Council, to declare tiiat such convention has been entered into by Her Majesty ; niul from and after the date of such Order in Council, any person being originally a sul)ject or citizen of the state referred to in such Order, who has been naturalized as a British subject, may, within such limit of time ax amy lie provided in the convention, make a declaration of alienage, and from and after the date of his so making such declaration such person siiall he legarded as an alien, and as a subject of the state to which he originally belonged as aforesaid. A declaration of alienage may be made as follows ; that is to .say, — If the declarant be in the United Kingdom in the presence of any justice of the peace, if elsewhere in Her Majesty's dominions in the presence of any judge of any court of civil or criminal jurisdiction, of any justice of the peace, or of any other ofiicor for the time being authorised by law in the |)lace in which the declarant is to administer an oath for any judicial orother h'gal purpose. If out of Her Majesty's dominions in the presence of any olliccr in the diplomatic or considar service of Her Majesty. 4. Any person who by reason of his having been born within the dominions of Her ^lajcsty is a natinal-born subject, but who also at the time ( f his birth l)ecaine under the law of any foreign state a subject of sucii state, and is still such subject, may, if of full age and not under any disithiiity, make a Tii, \ 768 33 * 34 VTCT. c. 11— KEG. BY SEC. OF STATE. [1S70 to be n Htfttiitorv alien, and may as siicli at any time iliirin» \vitlicr hciiicra IMirsuiincc (if wliii (liu'irif; • 111' riillicror liiws of siioli iiii'il to lie a liiis Ih'coiiic a IS 'ilitiiiiifd a , t'viMv child liJls licconic IT 111' Iiiollici', I'f a Hi'iti..h IS olitaiiipil a igiliiin, every Y lias lit'i'oini' )f till' I'liilcd tisli siilijcct. >tiil(' may l>v I Act ]J. S. 0. •fiiliitioiis.] uatiuiiality : lizutiun ill the -ailniissioii tn iiisulai' service I subjects who Ills, and of the ;ty's eiiiliassii's re imrjiosc of '•) The followiii}; rej^iilations shall be made with respect to evidence Regulations this Act : — '"* •" evideni'c, Anv (Icclai-ation authorised to b(> made under this y\ct may be proved in any le;^al prod by i-egulations of one of Her Majesty's l'i'iiici|ial Secretaries of State to gi\e certilled copies of such eertilicatc. Knli'ies in any register aiilhorized to be nwuh' in iiursuance of this Act shall be proved by such copies and c»'rtified in such manner as may be directed by one of Her Majesty's Principal Secretaries of State, and the c(H»ics of such culrics shall be evidence of any matters by this Act or by any regulation of the .said Secretary of StJtte authorized to Imj inserted in thn register. The Documentary Evi cniovcii liy snrli iH'rson within tiic limits of such possession, shall within siicfi limit. hnve the authority of law, but shall be subject to be fontinnid or dis. allowed by Her Majesty in the same manner, and subject to tlip sflm,, ndes in and subject to which Her Majesty has |)ower to eoiifinn or ili>. allow any other laws, statutes, or ordinances in that possession. ' No question of nntm-alization arises in connection with the emi- gration of British subjects to Can- ada. Settling in the dominion makes no more change in this re- spect than a removal fioni York, Gla.sgow, Swansea, or Dublin, to London, and a new arrival has all the privileges (if a C'anndiiin-born fellow-subject. This is very im- jrortant when compared with the position of a ])crson who contem- plates emigration from the United Kingdom to the Ignited Stat«'s. For example; — It is riMpiired that every- one from the British Islands who desires to become an American citi- zen shall take two oaths, one of in- tention and one of fact, the lattei- after five years' residenc*'. The ctTect of these oaths is pointedly and specifically to renounce alle- giance to the Queen, to give np one's British birthright, and, in the event of war, to beeomc nn enoniv to the land of one's liirth. In soini' of the States— the great Stnte (if New York, for instance— n Uritisli subject cannot hold rwil cMiiir without taking such oaths, ami can- not in any of the States cxereise any of the political rights of Auicri- can citizenship witiiont so dnin;;. On tho other hand, for I'oreigncis the Canadian naturalization laws are marked by a spirit of iilieraliiv, and such jK-rsous can transn.ct aiiv business and hold real estate with- out being naturalized. Jly residin;; three years and taking the ontji df allegiance they beccnne naturnliziil British .subjects. The oath is oin' of simple allegiance, and does ndt require any offensive n'iunieiatifin«. Natuiidization confers |»olitieal ami all other rights. — Official Html hook, |). 7. Definition of 17. In this Act, if not inconsistent with the context or subject-mattpi terms. thereof, — " i)isability " .shall nu'an the status of ))eing an infant, lunntic, idiot, or married woman. " British pos.scssion " shall mean any colony, plantation, island, territory, or setthMuent within Her Majesty's dominions, and not within the United Kingdom, and all territories and plates tnider one legislature aie deemed to be one British possession for the purposes of this Act. •' The Governor of any British possession " .shall include any jjorson exercising the chief authority in such [wssession. " OHicer in the di[tlomatic service of Her Majesty " shall mean any and)assador, minister, charge d'affaires, or .seci-etary of legjitioii, or any person ai)pointed by such ambas.sador, nunister, eliarnu d'affaires, or secretary of legation to execute any duties im- posed by this Act on an officer in the diplonuitic .scrrice of Her Majesty. " Officer in the consular service of Her Majesty " shall mean ami include consul-genend, consul, vice-consul, and consular agent, and any jx-rson for the time being discharging the duties ol constd-genend, consul, vice-consul, and consular agent, I or subjcct-ninltw' ant, liimitic, idiot, 1870.] 33 & 34 VICT. 0. 14.— NATURALIZATION. 771 Repeal of Acta mentioned in Schedule. 18. The sevprnl Acts set forth in the first and seoom' parts of tlio JUpcnl nf .\v\». scIiiMliilt' niiiu'Xt'd hereto shiill he wholly repealed, and the Acts set forth ill tilt' tliinl ]>iirt of the .naid seliednle shall he rei)ealed to the extent tiicrcin mentioned; provided that the repeal enacted in this Act .shall not affwl— (1.) Any ri<;ht aeqnired or thin}^ done heforu the pn,'ility neeniing liefore the passin"; of this Aei. (.'(.) Any iH'Malty, forfeiture, or other puni.shnient inenrred or to he incnrred in resi^ct of any offence conunitted hf^fore the piissinji; of this Act. (1.) The institution of any investigation or legal proceeding or any other remedy for ascertaining or enforcing any such liahility, penalty, forfeitiu'e, or puni.shinent as aforesaid. SCHEDULE. XdTE. — Ih'ferenee is made to the rei)eal of the "whole Act" where jwrtions have lieen reiHjaled hefore, in order to preclude henceforth the necessity of looking hack to previous Acts. This Schedule, so far as resiiects Acts prior to the reign of George the Second, other than Acts of the Irish Parliament, refers to the edition prepared under the direction of the Record Commission, intitided "The Statutes of tlu! Realm; printed hy coniuumd of His Miijesty King George the Third, in pnrsiuuice of an A(hlrcss of tile House of Commons of Great Britain. Prom original records tuid iiiithentic manuscripts." PART r. Acts wholly rki'EAi.kd, other than Acts of tiik Ikisii Parliament. Date. 7.1ns. I.e. 2. 11 Will. .1 e. G.; 11 k r2Wm. 3. (HufF.) 13 Geo. 2. e. /. iO Geo. 2. c. 44. Title. An Act that all such as are to he natumli/.ed or rc.stoi"cd in blood shall first receive the sacra- ment of the Lord's Supi)er, and the oath of allegiance, and the oath of su[)remacy. An Act to enable His Majesty's natural born sub- jects to inherit the estate of their ancestors, either lineal or collateral, notwithstanding their father or mother were aliens. - An Act for naturalizing such foreign Protestants and others therein mentioned, as are settled or shall settle in any of His Majesty's colonies in America. - An Act to cxttMid the provisions of an Act made in the thirteenth year of His present Majesty's reign, intituled " An Act for naturalizing foreign Protestants and others therein mentioned, as are settled or shall settU" in any of His Majesty's colonies in America, to other foi-eign Protestants who conscientiously scruple the taking of an oath." 3c 2 H^ ! i' 1 \ M \\t I oil.'] I ^!; I M 772 33 & 31 VrOT. 0. U. -NATURALIZATION. [im. 13 G«'o. 3. f. 25. 14 Geo. 3. r 10 Goo. 3. <• HI. r.2. 7 & S Virt. c. U)& 11 Vict. - An Aft to ox|>liiin two Acts of Piiilinmpnt, dm. of the tliirtcciitli year of tlic ninn of His i,,!,. Majesty, " for imturali/.in;; siicli foivii^n I'n,. tcstaiits and otlicrs as arc settled or slnill sctili. ill any of Ills Majesty's colonics in Amvriai" and the other of the .second year of the icifr'n of His |»reseiit Majesty, "for natiinilizin;; m\\ foreign Protestants as have scimmI or slmll serve ns oflicers or soldiers in J lis Jhijcslv's lloyal American re<.'iiiient, or ns en^jiiu'crs in America." - An Act to prevent certain iiicoiivciiicii(T« iji.ii may happen by hills of naturalization. - An Act to declare His Majesty's imturiil-lidrii .-•iiltjccts inheritahle to the estates of tiicir nn. ccHtons, whether lineal or collateral, in tliiit |imi of Great Britain called KAi.i':i>. I (lio. I.o. 1). All Aft lor icviviii}^, (•oiitimiiii'j, mill (Alt ut' Iri>li aiiiciuliii}; scvcial ^latiitcs iiiailf in I'uiliiiiiH'iit.) tliis kiii}:;(loiii hi-rt'tolon- Iciniio- rary. tiUi'O 1 ^' ^0. - All Act t'orfoiisoliilatiii;; aii(laiii*>iid in British pos.sessions arc :o lie un tliu same I'uotiiigasaiicus naturalized in Great Britain.] 33 & 31 VICT. (1870) c. 102. I'muiiblc repealed by S.L.lt. Act, 1893 (Xo. 2), u() *fc 57 Vict, c. 51. All Act to amend the Law relatiiii^ to the taking of Oaths of Allegiance on Naturalization. [10th Aiuj. 1870.] WHEREAS it is expedient to anienil the law reUiting to tlie taking 3^ iV ol Viit. ol' oatlis of allegiance under the Naturalization Aet, 1870: '"• '■*• lie it ciiaeted by the Queen's most Excellent Majesty, by and witb the a(l\i(ciiiiil consent of the Lords Siiiritual and Temporal, and Common.s, ill iliis iiieseiit Parliaimnit assembled, and by the authority of the same, ih follows: 1. The power of making regulations vestetl iu one of Her Majesty's J^'nalinixii^ m I'liniipiil Secretaries of State by the Naturalization Aet, 1H70, .shall "'"•"''•*"»■ cxtciiil to i)ie.scribing as lollows : (1.) The persons by whom the oaths of ullegiauec may Ik; admin- istered under that Aet : (-.) Whether or not such oaths are to be sub.scrilM'd as well as taken, and the form in which sueh taking and snbscriiition are to lie attestetl : (3.) The registration of such oaths : (1 ) The persons by whom certified copies of such oaths may bo given: (5.) The transiiiis.siou to the United Kingdom for the lairpose of registration or safe keeping or of being pro:ijir^fiOrf'>1>'-^'~t'^ -I 774 33 & 34 VICT. c. 52.— EXTRADITION. [1S7U. J (7.) With the t-onsont of tlio TrtMsiiry, the iiupo.sitiou and (i|iiili(ii. tioii of foes in respi'Ct of tlic adiuiiisirntion or rc'lstriilioii of any sncli oath : The two hi.st i)aragrai>ns in the t'lcvoath soi-tion of tlic Xatuializii- tion Act, 1870, shall apiily to legnlations iiiadc inidcr this Art. 2. Any iK'ison wilfnlly and corruptly inakinfj; or suhsc ril)in>' anv dcL-lisration under the Natiu'alization Act, 1870, knowins^ tin; same to lil. untrue in any material partieular, shall hi- guilty of auii.'<(leim'aiK)r, amllii. liable to imprisonment with or without hard labour fo;- anv term noi exceeding twelve months. 3. This Act shall be termed the Naturalization Oatli Act, 1n7o and bliorl titlo ,„ni gimH he construed as one with the Naturalization Act, 1870, nMd ot Act. jjjjj,^. 1^ ^,^^^^,^^ together with that Act as the Naturalization Actv, 1H70. I'cMiilty on making i'n\>e docl.iration. Construction ' Short title. WlKit' iir- ranncnic t for humiu'iei of criminals made, Order in Conncii to ai)i)ly Aft. 33 & 31 VICT. (1870) c. 52. Amended by 36 & 37 Vict. c. GO. [ichichst'e]. Tiist Schedule extended to Slave Trade by 36 & '61 Vitt. c. 88., sec. 27. Sec. 27, the last par., repealed h\ S.L.E. Act, 1883, 16 & 17 Vict. c. 39. Preamble and to "same as follows"; Sec. 26, so far as it deiiiies Soctc- tary of State ; Third Scbedide, so far as it relates to 6 & 7 Vict, c 75. and 25 & 26 Vict. c. 70., vepv.H by S.L.ll. Act (No. 2), 189S, c. 61. [See Extmdition Aet of Canada, 11. S. C, 1886, c. 1 12.] An Act for amending the Law relatins^ to the Extm- dition of Criminals. [Wi :Liig. 1870.] liriiEREAS it is expedient to amend the law rclatiii;.' to tin V V surrender to foreign states of [tersons accused or coiivielcd of the commission of certain crimes within the jinisdicliou ol such ftalcs, niul to the trial of criminals surrendered by foreign states to llii> country : Be it eni'cted by the Q". mi's most Excellent Majesty, by and with the advice and conseni of tlu; Lords Spiritual and Temporal, ami Conunons, in this [iresent Parliament as.sembled, ami by the aiitliorilv of the same, as follows: I'liliminary, 1. This Act may Ite cited as "The Extradition Act, 1870" 2. Where an arrangement has been with ny foreign state wiili respc'". to the surrentler to such stale of any fugitive ( riniinals Ih r Majesty nuiy, by Order in Council, direiiiii> uf lurcij'n state shall not be made unless the arrangement — arningriiiciit «.,,,. tVir surrcaiUr. (I) provides for the determination of it by either party to it alter the expiration of a notice not exceeding one year ; and, (-) is in conformity with the [irovisions of this Act, and in particular with the restrictions on the surrender of fugitive ei ii.iinalsctm- tained in thi.-i Act. 5. When an order applying this Act in the case of any foreign state I'liMicatic isIkh'ji published in the London Gazette, this Act (after the date sjieci- 'i"'! >'tti''t ■il ill the order, or if no date is .sjM'cilied, after the date of the publica- '"''''■''• ,i,\ .,l...ii .... I .1 1 :.. , :.. 1' 1.... ... .!.:....» ... •!.. hn lii linn) >ihiill, .so long as the ortU'r remains in force, but subject to the liiiiiliitioiis, restrictions, conditions, exceptions, and (lualilicalioiis. if any, I'Diiliiined in the order, apply in the ca.se of such foreign state. An Onit'i' ill I'ouucil .shall be conclusive evidence that the arran<;ement liiiniii rel'err"d to complies with the recinisitions of this Act, and that tlii^ A't applies in the ca.se of \\w foreign state mentioned in the order, iiiiil tlif validity of such order shall not be (pieslioiied in iiny legal pro- vifilings whatever. 6. Where this Act applies in the ease of any foreign stale, I'very fngi- Liability of 'ivi' ciiniinal of that state who is iu or sns|iected of being in any part of t""^'!"''!!!! fn Ihi Xliijesty's dominions, or that jMirt which is sitettilied in the ortler ""''''"" '""■ > ■' ! ' ! t ii ■ 776 33 & H VICT. c. 52 —EXAM. BEFORE P. M. LIH70. Ordoi- i(t' Sccrt'tiiry of StHtf for issuu of wiirniiit in riiitecl King- dom if iTiniu is not of a political clm- rucUir. Issue of war- I'luit liy jjolifu niiigisitrato, ju-stiw, &f. Hearing of case anil ovi- tlcnce of poli- tical character of crime. ^* i4»|)lyiu<; this Aot (us thi; nise jiiay be), shall hv. liabU' to \>r iiiJprclicndLiI and siirreiKlt'ii'd in iiiaiiniT provided by this Act, whether tlic ciinK. in lespeet of whieh the surrender is sought was eoinuiitte 1 bdoic or ai'tci the date of the order, and whether there is or is not any etMiciincnt jmi.>.- ihetion in any court of Her Majesty's dominions over 'it ( rinic. 7. A requisition for the si^rrender of a fuj^itive eriniinal ol' miv foitji'ii state, who i.s in or susiK-efed of iM'isig in the United Kinj^doni, shall ?«• made to a Secretary of State by some per.son recognised l)v the Sccrctai'v of State as a diplomatic representative of that foreign state. A Sccrctai v of State may, by order under his hand and seal, signify to a nolici. magistrate that such recpiisition has l)een made, and reiiuiie iiini to i^sur his warrujit for the api)rehension of the fugitive criminal. If the Secretary of St4ite is of opinion that the offence is one of a political character, he may, if he tliink fit, refuse to .send any muIi onli t. and may also at any time order a fugitive criminal accu.sed or coiividcd of such offence to bi' discharged from custody. 8. A warrant for tiie apprehension of u fugitive criminal, wlictlifi accuseil or convicted of crime, who is in or susjR'cted of being in tin United Kingdom, may b;- issued — (1) by a i)olice magistrate o'l the receipt of the said order of the Scnv- tary of State, and on such evidence as would in his opinion jnslilV the issue of the warrant if t\u' crime had been couunitted or tlir criminal convicted in Enylund; and (2) by a police magi:-;trate or any justice of the peace in any part of iln United Kingdom, on sm-h information or coniplaint and mhIi evidence or after such jn'oceedings as would in the opinion of tiii> person issuing tlu' warnuit justify the issue of a warrant if tlir crime had i)een committed or the crimimd convicted in that pan of 'he United Kingdom in which he cxt'rci.ses jurisdiction. Any jR-rson issuing a warrant uncU'r this section without an order from a SecreUu-y of State shall forthwith send a reitoi't of the fact of such issiu', together with the evith-nce and information or comi)hiint, or ccrliliiil copies th 'reof, to a Secretary of Stat*', who may if he think iit order tin warrant to be cancelled, and the jR'r.son who has been npprclicndcd (jii the warrant to be distargetl. A fugitive criminal, when apia'eheiided (Ui a warrant issued willmiii the ord-r of a Secretary of State, shall be brought befori' sonic p, imhi having power to issue a warrant under this section, who shn'l by warrant onler him to be brought and the prisoner shall accordingly be liroujilit before a |)olice magistrate. A fugitive criminal apprehended on a warrant issued without the onlii of a Secretary of State shall be discharged by the |»()li('e niagistrali. unless tile [lolice magi.strate, within such reasonable time as, wiili referenc*' to the circiiinstances of the ea.se. In- may lix, receives Ikmii a Secretary of State an order signifying that a reipiisition lias lieeii niadi' for the surrender of such «'riininal. 9. When a fugitive criminal is brought before the p(dice niagistniti', the police magistrate! shall liear the case in tlie same nuuiiiei', and Iiiim' the sjiiiio jurisdiction and powers, .is near as may Ik-, as if the prisonn were brought before him charged wit'i an indictable offence eoniuiittd in England. The police nnigistrate shall receive any evidence whieh may l* tendered to show that the crime of which the prisoner is accused nr alleged to have Iri-j convicted in au offence of a political charaeter or is not un extradition crime. 1870.] 33 & 3^ VICT. c. 52— HABEAS CORPUS. 777 10. i" •''*-' ^'"'*^' "'^ " t'ligitivf criuiiual accnsed of an i-xtimlitioii friiiii-, if the foreign warrant authorizing th.- arrest of such criminal i.s duly autlu'iiticated, and such evidonco is prodiifi'd as (subject to the laovisions of this Act) would, according to the law of Etir/land, justify the coni- iiiittiil fur trial of the prisoner if the crime of which he is accused }*charged. In the ease of a fugitive criminal alleged to liuve been convicted of an txtiiidition crime, if such evidence is produced as (subject to the pio- visioiis of tliis Act) would, acconling to the law of Englauil, prove that tlie prisoner was convicted of such crime, the police magistrate shall toiuniit him to prison, but otherwi.se shall order him to Ik? discharged. [.SVcsec. U.K. S. Cell. 142.] If he coinuiitt i: h criminal to prison, he shall commit him to the Middlesex Hor -f Detention, or to some other pri.^on in MuM/vsej; then' to await tl- arrant of a Secn-tary of State for his surrender, and simll forthwith send to a Secretary of State a certilicate of the committal, aiul sueii report upon the case as he may think lit. 11. If tiie police magistratcf eonnnits a fugitive criminal to [)rison, he slmll iuform such cu-iminal that he will not be surrendered until after the expiration of fifteen days, and that he has a right to apply for a writ of Mms corpus. [See sec. 12 R. S. C. ch. 112.] Upon the expiration of tiu! said liftcen days, or, if a writ of habeas torpus is i.ssued, after the decision of the court upon the return to the writ, as tht; ca.se may be, or after such further period as may lie allowed in either case by a Secretary of State, it shall Ik- lawful for a Secretary of State, by warrant under his hand and .ser", to order the fugitive crimi- nal (if not delivered on the es may l»e retaken ujion an e.scajjc. 12. li tile fugitive criminal who li. s b«'en connnitted to prison is iu)t xuivndered and conveyed out of I • United Kingdom within two niontiis after such connnittal, or, if a writ of habi-as corpus is issut.-d, after tiie (h'cision of tin." court upon the return to the writ, it shall l)e iinvfnl for any judge of one of Her Majesty's su|H'rior courts at West- minster, upon application matle to him by or on iM-half of the criminal, iind upon proof that rea.sonable notice of the intention to make such u|)piiciition has iK'en given to a Secretary of State, to order the criminal to 1k' discharged out of custody, iinless sullicient cause is shown to the eontrary. 13. i'lie warrant of the police nnigistrale issued in pursuance of this Act nniy be executed in any part of the United Kingdom in the same iiiunner as if the same had lieen originally issued or sub.sccpiently iiulorsed by a justice of the jK'ace having jurisdiction in the place where the siune is executed. Cuuimitlul ur discharge of prisoner. Surrender of fugitive to foreif^n state by warrant of Seeretary of State. J)ise!mrgi' of persons appre- lieiulcd if not conveyed out of United Kingdom within two months. Kxecution of warrant of police magis- trate. I ; I * ! (,i M I ] 778 33 & 34 VICT. c. 52.— CRIMES ON THE SEA. iJcpi)>itii)ii.s to lie uviik'ncu. & 7 Viut. c. "6. Aiitlitntiriitiiin of iltiiositioiis iiiul waiTiUits. 2'J & 30 Viot. c. 121. ■Illl'iMlirtiiiii ;!.■< ti) I'l'illir.- I'oin- niitti'tl at Mil. Proctcdiug> tui tu fufiritivc criiiiiimlH in Kritibh pu8- 8USHiull8. [1870. 14. l)i'iX)sitions or .statements on outli, tiiken in a foroi<;ii .state niul copies of such original depo.sitions or statements, and loreijin (•(■itili<)it,. of or judicial documents .stating the fact of conviction, innv if duly authenticated, ho received in evidence in proc»'evitli the following inotliliaitioiis ; namely, (1.) The requisition for the surrender of a fui^itive criiuiiml who is in or suspected of l)ein<^ in a British posse'^sion may be made to the Gover- nor of that J3ritish possession by any person recognised by that Governor as a consul- general, consul, or vice-consul, or (if the fugi- tive criminal has escaped from a colony or dependency of the foreign state on behalf of Avhich the requisition is made) as the Gover- nor of such colony or deiwndency : (2.) No warrant of a Secretarv of State shall be re- quired, and all powers vested in or acts autho- rized or required to be done under this .Vet by the j)olice magistrate and the Secretary of State, or either of them, in relation to the surrender of a fugitive criminal, may be done by the Governor of the British possession alone : [\i.) Any ])rison in the British possession nmy be substituted for a prison in Miihllescd' : (1.) A judge of any court exercising in the British possession the like powers as the Court of Queen's Bench exercises in HiiyUnul may exercise the power of discharging a criminal when not conveyed within two months out of such British possession. 18. If by any law or ordinance, made before or suvin^'of iii«s alter the passing of this Act by the Legislature of any po..bi>Mons. British possession, provision is made for cju'rying into I'll'ect within such possession the surrender of fugitive crimiimls who are in or suspected of being in such British posses.sion. Her ^lajesty may, by the Order in Council applying this Act in the ciise of any foreign state, or by any subsequent order, either suspend the operation Avithiu any such British possession of this Act, or of any part thereof, so I i :i i • i i ! ! i 1 M '!'■ • 780 33 & 31 VICT. c. 52.— TRIAL OF OFFENDERS, [lyjy * far as it relates to such foreij^n state, and so hw as such law or oi'ilinauce continues in Wnxr tliciv and no longer; or direct that such law or ordinance, or ai^y part thereof, shall have effect in such ]iritisli posses. sion, Avith or without modifications and altorutioiis, as if it Avere part of this Act. General Prorisioiis, 19. Wlicrc, in ptusuance of aiiyaiTiiiif^cnu'iit with a t'orcij^n stiitv,iiiiv person aceiisctl or eouvicted of any crime which, if coniinitted in EmjUiMl, would he one of tlie crimes descrihed in the first .schedule tu tiiis Art i> surrciidi'icd by that foreign state, such person «h:i;l not, uiilil he In,,; hi'cn restored or liad an opportunity of retniiiing to sueli I'oi'eif^u sia(i>, bo triable or tried for any ofiPencc connnitted prior 'o the sum nih r in any part of Her Majesty's dominions other than such of the siid ciinus as may be provetl by the facts ou which the surrender is grounded. 20. riic forms sot forth in the second schedule to this Act, or forms ll^ iii'ar thereto as circumstances admit, nuiy be used in all matters in wliich such forms refer, and in the case of a British possession may he so used nuitatis mutandis, and when used .shall be deemed to be valid anil sulli- cicnt in hiw. 21. Her I^ajesty nuiy, by Order in C'otnicil, revoke or alter, snlijwt to the restrictions of this Act, any Order in Council made in puisuiuicc of this Act, and all the provisions of this Act with respect to the ori^;iii;il order shall (so far as applicable) apply, mutatis mutandis, to any siuii new order. 22. This Act (e.\cept .so fur as relates to the execution of wmiiimiIs in the Channel Islaiuh) shall extend tj the C/iannel Islands »\n\ Islvnf Man in the .same manner as if they were i)art of tin; I'nited Kinj;(l(jiii; and the royal courts of tin; Channel Islands arc hereby resiHttivily authorised and required to register this Act. 23. Nothing in this Act shall affect the hiwful powers of ller .Majisiv or of the (Jovernor-ticneral of India in Council to nnike treaties fui' lliu extradition of criminals with Indian native .states, or with other Asiatic states conterminous with British India, or to carry into exeeiitioii tiu' provisions of any such treaties made either before or after the passiiijjol this Act. I'owcr of 24. The testimony of any witness may be obtained in relation toiiiiy t'oii'i};!! state to criminal naitter ponding in any court or tribunal in a foreign statf in ol)tiiiii ividciiie li|^^. jnanuer as it may lu; obtiiined in relation to any civil nuitter uiuiir the Act of the ses.sion of the nineteenth and twentieth years of the ni;;i: of Her present Majesty, chapter one hundred and thirteen, intitiiliil " An Act to provide for Taking Evidence in Hei' Majesty's iJoniiiiidiK in relation to civil and conimorciul matters ponding hi'fore i'on'i<,'ii tribunals; " and al'. the provisions of that Act shall be construed as if the term civil matter inchided a criiuinul matter, and the term cause iat'lnilcil a proceeding against a criminal : Provided that nothing in this .swtiuu shall upply in the <-us(> of any criminal matter of ii politicid cbaructer. Ci'iiiLiiiiil sur- roiKlcrud by t'ori'ij!;n state not ti'iiiblu for jiiX'vious criniu. As to use of forms in se- eond seliedule Kevoiatioli, i^e of Order in I'ouneil. Ap|)lieiitioii of Act ill CliaiiiU'l I>lniids and Isle of Ma: . .•Saviii}; fur In- diau treaties. ill I'liited Kiiigduin. ^m 1S70.] 33 & 34 VICT. c. 52.— DEFINITION OF TERMS. 781 25 For tlic purposes of this Act, every colony, aled) shall apply (as rpgnrds crimes committed either iM'fore or after the passing of this Act), ill the case of the foreign states with which those treaties an> nutde, in the same manner as if an Order in Council referring to such treaties had iM'cn made in pursuance of this Act, and as if such order had directed tmit every law and ordinance which is in force in any British [losscssion \vitli respect to such treaties shoidd have effect as part of this Act. " Legislnture ;" ' (iovernnr " K.\lriidition crime ;" " Coiivielion :" " Fuftitivo eriininiil :" " Knjiitive eriniiniil of a t'oreif;!! slate:'' " .S'eretnrv of State:" " Pi>li(v nia- gistnito :" " .Justice of tlie peace :" '• Waniint. " •» m % !lll il 1 f ' ■! i -•i'if+***'M>*^*i»'.fiir,Titj»?r,r#^:, KB w 'f 782 3.3 & M VICT. 0. 52.— EXTRADITION CRIMES. [1H70, I'roviilcrl that if nny proceedings for or in relation to tii.i sinicndi r of a fugitive eriniinal have been conuneneed un(h'r tht^ saiil Acts pii'vioiish to ilie repeal thereof, such proceedings may he completed, and llic fniritiy,, sinrenilered, in the sjinie manner as if this Act had not iias.srtl. SCHEDULES. FIRST SCHEDULE. Ll.ST OK CUIMKS. The following list of crimes is to ha constriutd according to the law existing in En(fl(tn(1, or in a British possession (as the ease nmv In), at the date of the alleged crime, whether by common law or liy stntutr made l)efore or after the passing of this Act : [Numbered as in Canadian Act, R. S. C, 18.S0, c. 112., 1st Scli. The brackets denote the additions in the Canadian Act.] (1) Murder, and attempt and conispirucy to murder. (2) Manslaughter. (3) Counterfeiting and altering money, and uttering coiniforfcit uv altered money. (4) F(a'gery, counterfeiting, and altering and uttering what i^ forged or counterfeited or altered. (.5 & (5) Embezzlement and larceny. (7) OKJJaining money or goods by false pretences. (Hj Crimes by bankrupts against bankruptcy [or insolvency (Can.)] law. (9) Fraud by u bailee, banker, agi-nt, factor, trustee, or (lii'ccler, or pid)lic officer of any company [to wliicli iiiind !•; {CaH.)'\ made criminal by any Act for the time being in foirc. (10) RajK'. (11) Abduction. (12) Chihl stealing. (l.'{) [Kidnapping in Canadian Act, sec 30 & 37 Vict. (Inii).) c. GO.] (11) [False imprisonment in Canadian Act.] (15) Burglary and housebreaking [or shop breaking.] (1(5) Arscm. (17) Robbery with violence [with violence not in Canadian Act]. (18) Threats by hitter or otherwise with intent to extort. (1!)) [Perjury or Subordination of i)erjury in Canadian Act.] (20) Piracy by law of nations [or in Canadian Act, I'inuy liy Municipal law or law of Nations committed on bonnl of nr against a vessel of a foreign state], (21) Sinking or destroying a vessel at sea, or altemi)ting or con- spiring to do so. [This runs in the Canadian Act :— "Criminal .scuttling or destroying such a vessel at sen, whether on tho high seas or on the great lakes of North Amciica, or attempting or conspiring to do so."] (22) Assaults on l)oaril a ship on the high sea.s with intent to destroy life or to do grievous bodily harm. [In the Canadian Act, " Assault on board such vessel at sea, whether on tiic lii;;li seas or on the great lakes of North America, with intent to destroy life or do grievous bodily harm."] fW ■ 1870.] 33 & 34 VICT. c. 52.— MUTINY. 783 (23) llevolt or conspimoy to revolt by two or nioro persons on board ft ship on the \\\^\ seas against the iiulhority of the muster. ['Pile Canadian Act is, " llevolt or conspiraey to revolt by two or nioro persons on board siieli a vessel at sea, wlietlier (111 the high sens or on the great lakes of North America against the authority of the master."] [See the following Imperial Act, 3« & 37 Vict., 1873, c. 00., for the following additions nundiered ns follows in the Caiinilian.] (21) [Pl'c Canadian A<'t proceeds, "Any offence under either of the following Acts, and not included in any foregoing portion of this schednle. (rt) " An Act respecting offences against the person." (h) " The Larceny Act." (e) " An Act n^specting forgery." (d) "An Act respecting offences relating to the coin." (e) "An Act resp<'cting malicious injuries to i>roi)erty."] (2')) [Any offence which is, in the case of tlu^ principal offender, " iiicludetl ill any foregoing iK)rlion of this sehccluie, and for which the fugitive eriniinal, though not the principal, is liable to be tried or imnished as if he were the principal,] SECOND SCHEDULE. Form of Order of Secretary of State to the Police Magistrate. To the chief magistrate of the metropolitan police courts or other magistrate of the metropoliian police court in Bow Street [or the stii)endiary magistrate at ]. Whereas, in pursuance of an arrangement with , rcfcricd to in an Order of Her Majesty's Council dated the (lay of , a reqni.sition has been made to me, , one of Her Majesty's Principal Secretaries of State, by , the diplomatic representative of , for the surrender of , late of , accused [or convicted] of the commission of the crime of within the jurisdiction of : Now I hereby, by this my iirdcr under my hand and seal, signify to you that such requisition has been made, ami retiuirc you to issue your warrant for the apprehension of such liigitixc. provided that the coiidhions of The Extradition Act, 1870, rehiting tn the issue of such warrant, are in your judgment coin|)lied with Given under the hand and seal of the undersigned, one of Uvv Majesty's Prineiiial Secretaries of State, this day of 18 . Form of Warrant of Api>rehension by Order of Secretary of State. Melroiuilitan r'or'l.NMmr''^*' l'^'" "" "'"' ^'"^'^' °^ *'•'' constables of the metropolitan hnroiiEl Of ^""^11 police force [or of the county or borough of ]. to wit. NVheukas the Right Honourable one of Her >hiji stv \ Principal SecretJiries of State, by order under his hand and ■'•■al, hath signitied to me that requisition hath been duly made to him for the surrender of late of accused [or 1 1 ; 1 , ij. Ij Iff 1 1 1 1 : 1 M ! I! ']■ I I 784 33 k 34 VICT. o. 52.— ENO. * CAN. : TOmiS [i«7n. I . <'onvicte(l] of the coininission of the crime of within the jiirisilictioii of : This is tliercforo to roiiiimmd vim ill Her Mivjcsty's imiiic fortliwitli to iipprcliciul tlit- siiid imrsiiiint to The Extrndition Act, 1H70, wlicrc\cr lie iniiy 1)0 fdiind jn I lie I'liitcil Kiiifidoin or J.\/c of Man, mid liriiij; liiiii In-fore \w' „|. ji,,,,,,. other [iiKifjistrute sitliii<; in this court {alter as required)], to n!i(i\v<.„ii„, why 1h' slioiild not 1)0 .surrendered in iiiirsimnce of the said Kxtiwlition Act, for which this f»linll be your wnrrunt. Given under my hand nnd seal at [How Street {alter as renuind) one of the jiolico courts of the metropolis) this dav of , A.I). J. IV imd 3," iiiul tlicv To all and each of the eonstahles of {\w mclroiiojiiiin police force [or of the county or l)orouludl lio yonr warrant. Given under my hand and seal at borough] aforesaid, this day of in tlie ooiintv [or A.D." J. V. Mctropnlitaii polii'i! district, [or I'ounty »r lHirou){h of ] To irit. (Form 2 in Canadian Act.) Fonii of IVarrnnt of Committal. To one of the constables of the metro- politan police force [or of the police force of the county or borough of ], and to the keeper of the at Be it remembered, that on this da;/ of in llie i/ear of our Lord late of is brought before me [In Canadian Act, a judge under " The Extretdition Act"] [The Canadian Act goes on, teho has been apprehended under till' said Act to he dealt with according to law, and forasmuch lis I hare determined that he should be surrendered in pursuance of the said Act on the ground of his being accused [or convicted iiftlie crime of within the jurisdiction of —instead of the above words in italics the Kngli.sh form continues after till' words " lyefore me " : — the chief magistrate of the nu'tropolitan police loiirts [or one of the police magistrates of the metropolis] sitting at the IKilice court in Bow Street, within the metropolitan police district [or n ^tiiK'ndiary iiingistrate for ,] to show cau.se why he should not iit'sniTeiidei'ed in pursuance of The Extradition Act, 1870, on the ground (jf lii.s being accused [or convicted] of the commission of the crime (if within the jurisdiction of , and foras- iiiiicii as no snlTicient cau.sc has been .shown to me why he shoidd not Iw "Uirendered in pursuance of the said Act : [TlKn tlie following so /«>• as is common to l)Oth forms] This is there- fore In command i/oH the said constable in Her Majesty's name f'orfh- uilh to conrcy and deliver the body of the said info thceiistodi/ of the said keeper of the at , (111(1 ynii the said keeper to receive the said into your nstodij, and him there safely to keep until he is thence delivered pur- smnit to the provisions of the said Extradition .let, for which this shall lie i/oiir warrant. (iiveii under my hand and .teal at Bow Street, one of tlie police coints of the metropolis, [or nt the said ] fhi-1 day of A.D. J. P. (Form 3 in Canadian Act.) Form of Warrant of [Order of Minister of Justice] Secretary of State for Surrender of Fugitive. To the keeper of [the] [at] and to JVhercas late of accused [or cmi- rktcd] of the commission of the crime of within the jurisdiction of , was delivered into the custody of you the keeper of [the] [at] h mrrant dated pursmnt to The Extradition Act, 1870 : iVow / do hereby, in pursuance of the .said Act, order yon the .said S 2340. 3 D ! !! ' i'M ill;' I 11; I i ;i li II M I I I t I 780 33 & 34 VICT. c. 00— niUTISH COLUMBIA. [1«"0, keeper to deliver the body of tlio said into the cuitodu of the stiiU , and I command you the said to rcreire the said ^ into your custody, and lit ronvn/ him within the jurisdiction of the said , and t/nre ptui'r him in the custody of any person or persons [or o/" ] apfminted by the said to receive him,Jor which this shall he i/imr war ran'. Given under the hand and seal of the undersiyned [in Cnnailian Act, ^Minister of Justice of Canada], one of Her AInjcslv's Principal Secrefnrii'M of Stiite, this day of . Year (iiid Cliapf it. THIRD SCIIEDULK. Title. & 7 Vict. c. 75. i^ 7 Viet. c. 70. S Si 1) Viet. e. 120. 25 k 20 Viet. <•. 70. 29&30 ViF tlic Frciicli for th(^ apiirelieiiHion of eertiiin oiretHJiTs, An Aet forgiving elFeet to a treaty iMtwccn llir Majesty and tlie United States iif A morion for tlie a|)|irelien.sion of certain (ilfeiiders. An A(!t for facilitating eveention of tlic tmatios wifli France and the United .Statos nf Aniericii for the apprehension of ccrtaiii offenth'rs. An Aet for giving effect to a convention biiwcca Her Majesty and the King of Denmark for the inntnal .snrrender of criminals. An Aet for the ainen(hnent of the law rolntin;; to treaties of extradition. ; i ■ t 33 & 3 V VICT. (1870) c. 66. "Ropoalod l)y S. L. R. (1891) 57 & 58 Vict. c. 50. An Act to make further provision for the GoAeriimcnt of British Cohimhia. [9/// Aug. 1870.] Proiinibio. TTTHEIIEAS in pursuance of the powers vested in llor JIajcsty VV by an Aet ijas.-^ed in the .session liohlen in the twenty-first and 21 & 22 Vii't. twenty-second years of Her Majesty's reign, intituled " An Aet to pro- y tlie Authority „f ilip Mnnu', an follows : 1, This Act inny Imi citod ns " Tin' Hiitish Colnniliia Oovornniont Act,' IH-O." 2. For tilt- pur|iost'H of this Act, th«> term " Oovornor " shall nn>an tlie ofliwr for the time licing lulininisturing the govcriiniont of Hiitish I'oliiinliia. 3, Her Majesty may, by any Order or Orders in Council, revoke the snid rocited Order iu Council, and may from time to time make, and wlicn made revoke or ftlt<'r. Orders in Council for <'onstitutin, 11! t! Mr 788 33 & 34 VICT. c. 82.— LOAN FOR DEFENCFi. [1870. iiii.iiiiti J. uim wi I Hiiniia next 'or tho construction of tlio Intorcoloninl Tlailway • spcdicn* to authorise tho TronMury to };ivi> such Short titli'. Power to I liP Ti'cnsiiry to gua'iinti't' loiin Coiulitions of gimmiitrc. Aii|ilioation of Hiiikiii^' fund. Altcriition of Act n latiiig to guamnticd loan. I»sur out of Consolidiitod ?und. CiTtiflcntp of amount paid out of Coimor ilatcd Fund. one per cent., or in such other way and subject to stieh conditions as the Governor in Council, with the assent of the Treasury, might detor- niine, were charged on the Consolidated Revenue Fund of Canada next after the appropriation for And whereas it is cxj gtiarantee : Be it enacted by the Queen's most Excellent Majesty, l)y and wifii the advice and consent of the Lonis Spirittial and Tcnporni, mik! Com. mons, in this present Parliament assembled, and by tl;e authority of th« same, as follows : 1. Tliis Act may l»e lited as "the Canada Defence"" Loan Act, 1S70." 2. Tlie Treasury may guarantee, in such manner and form as tliov think fit, the payment of tlie principal of any loan raised by liii- Govern. ■ ment of Canada'iu pm-.suauce of 'he .said Act, and of interest tiiereon at a rate not exceeding four per cent. 3. Th(^ Treasury shall not give any guarantee under this Act unless and until provision is made to the satisfaction of the Treasury — (1.) For the due payment, custody, and ai)plication of the nunev rai.sed liy the loan, in such manner as the Treasury from time to time direct: (2.) For remitting to the Treasury the annual sums for the sinliin;; fund by ecpial half-yearly payments in such nnuuicr as tlu' Treasury from time to time tlirect, ami for the iiivcstniciii and accumtdation thereof, under their direction, in tiic nanii"^ of four tru.ste<'s nominated from time to time, two l)y tlic Treasury and two l>y the (lovernment of Canada. 4. T^'i<^ ^*"i the (loverinnent of Canada and the Treasury from time to time njjrcc upon, and shall, whel'.ier invest<'(i or not, Im^ applied from time to tinn., undi r the direction of the 'IVeasnry, in di.sch.irging the prin(i|.al ot the said ioa'i ; and tlie interest arising from s.ich securities (inclinlinf; tln' interest aeerning in resju'ct of any part of the loan di.schargi'd by nicaiis of file sinking fnr.il), aiui the resulting income thereof, shnli 1h> investnl ai-'l applied as part of such sinking fund. 5. Every A|K<' ei'.her of principal or interest. 7. The Treasury may from time to time certify to oii' of Hit ]S[i;jesty's Principal Secrete.ries of Stale the amount which lias Ihtii pai(l out oi the < ,)ns«)lidated Fund of the; Unitt'd Kingdom to iiiHil tin giaraiitee under this Act, and the date of sucli payment ; such cert it; M'' shell be communicated to tliodovernor of Canmla, and shall 1hm'oiiiIii>h ' evi('enee of the amount hnving Imm-u so paid and of the time when llu' sitine was so |Miid. ■j. [1870. 1S70.] 33 & 34 VICT. f. 90— FOR. ENLIST. ACT. 789 conditions us inii^lit (lotcr- Cnnaila next ninl Raihviiy ; to givp .such liy and witli )ml, iind Com- ithority of tht> nil Aft, 1870." form ns tlicy )y tlic Govd'ii- •«'st thereon m 8. The Trea.sury shall cause to Ik- prppuivd, and laid before lioth Houses of Parliament, a .stisteinent of any jjuarantee {jiveii under tiiis Act, and an aceount of all sums i.s.sned out of the Coiisididated Fund of tiie United Kingdom for tlie pui'iKJses of this Act within one niontii after the siune are so given or issued, if Pariiiunent lie tiien sitting, or, if Parliainent be not sitting, then within fourteen days after the then next meeting of Parliament. 33 & 31 VICT. (1870) c. 90. Sec. 31 rcpealetl by S. L. li. Act, iS.S3, 1(> & 17 Vict, c. 39. Preamble; Sec. 3, from " sbtill come," whtuv those words first occur, to " tliereof and " ; Sec. 23, i\m vords " Commissioners of " ; Sec. 2G, from " or other " to "time being," and the words "to the liord Lieu- tenant " ; Sec. 30, so far as relates to the term " Thi; Secretary of State," repealed by S. L. K. Act, 1893 (No. 2), 5G & 57 Vict. c. 51. An Act to Kegiilate the Conduct of Her ^lajesty's .sub- jects (liiritit; the Existence of Hostilities bv 'ween ioieiixn State-s with wdiich Her Majesiy is at Aocmints to 1« l.'iiil N't'oru I'^uliiiincMt. l\'!ice. [9//. Aiiliiilies between foreign .stJites witli which I lei .Majesty is at iK'ili'e ; lie it enacted by the Quwn's most Excelhnt Majesty. l»y and willi the iiihice and eoUM'iit of tlu- Lords S|iiritUMl and 'I'einporai, and ('iiuuu(in>, iii tliis jiri'sent Parliament a.ssembletl, and by tin- authority of the sitiiie, ih follows : I^rcliiniiKir 1, 'I ills Aet nniy be cited fv)r all pinposes as'*TIie Foreign V'nlist slidit litK' .it imnl Act, 1870." -^i'' 2, This Act shall extend io all the dominioiLs of llei 1 lii'sty, iuclud- /ii>iilicaiioiiof iiig tlie udjneeiit territorial waters. ^'^^• 3, Tiii'^ Act siudl come into openitiuu in tlie I'uited Kingdom imme- ('(iiiiiucmi'l'- cliately (11! the passing thereof, and sliall 1m' proclainu-d in every Uritish nuntufAct. IKisse.xsion by the Ooveruor thereof as .soon as may be after in- reet-ixcs niitice of tliis Act, and shall come into openition in that Ibitisli posses- ^i- luiiiion.-' with intent to .wrw II foreign tstalu. Penalty on ciiiliarkinfT jHTsoiis under false rejireseli- tationi as to >crviec. [1H70. aiiv I'oivigii stiito at war with any I'oivigu hUHv at [tfai-i' witli IK.,. Majesty, ami in this Act rcfenvd to as a trii-iully state, or wlictliei' a Urilish suhjei't or not within Her Majesty's (loniinions, inchiecs anv other I erson to a( cept or agree to accept any couiniission or cnfii'ri". nieiit in the mihtaiy or naval servic ■ of any such foreign .state as al'ore- said. — Ho sliall Ik- guilty of an offence against this Act, anil shall l)e pnni>hal)le by lino ami iinprisonmont, or either of sudi imnisli- niont.s, at the di.scretion of tlie court before wiiich the oileiidei is convicted ; and iinprisoninenl, if awarcU'd, may be eilliir with or without hard laboiu-. 5. II any per.sou, without the licence of Her Majest\, being a Bi'iish .snbji'ct, »inits or goes on board any ship With a \ iew of tiuitting Her Majesty's dominions, witii intent to aecept any comiuission or eii<'a"e- mont in the military or naval service of any foreign state at war wiili a friendly st4ite, or, whotiier a Eritisii subject or not, witliin Her .\hijeslv' dominions, induces any other person to (juit or to go on board ii, shi[> with a view of ijuitting Her Majesty's dominions with the like intent, — Ho shall be guilty of an offence against this Act, and shall 1m' pinii.shable by fine and im|)risonment, or either of such i)iini-li meats, at llie discretion of the court before which the otJemler is <'onvictetl ; and imprisonment, it' awarded, may bo either with or without hard lal)0-.r. 6. If any iH-rson induces any other person to (|uit Her Majesiv's dominions or to etnl)ark on any ship within Her Majesty's (louiiiiioiis under » misreprosentation or false repre.si-ntation of the service in which such |H'rson is to be engaged, with the intent or in order that such persoi; may acceiit or agree to accept any commission or cngageinent in the military or naval si'rvioe of any foreign state at war with ;i friomlly state, — III' shall be guilty of an offence against this Act, and shall he puuLshable by line and imprisonment, or eitlier of such iiuiii^li- ments, at the discretion of the court before which 'he offendir is convicted ; and imprisonment, if awarded, may he eiiher with or V iihout hard laboui'. (1 to as illegdly eulisted iK'rsoib; Penalty on 7. If ''"^' 'na.ster or owner of any ship, witiicuit the licence nf Ifii taking ille(,'ally Majesty, knowingly either takes on board, or engaj;cs to take on hdind, enlisted persons ^^^. \^^^^ q„ i,oj,i.,1 sni^h ship within Her Majesty's doniini' ns, anv of the on board ship, loijowing per.sou.s, in this Act rel'envd that is to sjiy, (1.) Any jM'rson who, being a British subject within (?r witlidiil the dominions of Her Majesty, has, without the licence of Her Majesty, accepted or agreed to accept any connnission or engagement in the military or naval .servic*; of any foreijrii statt! at win- with any friendly state ; (2.) Any person, l)eing a Brit-.^u sujjject, who, without the lieciiee of Her Majesty, is about to (|ui* Her Majesty's doininions wiili intent to accept any <'omm'.ssio!i or engagement in tin' niiliian or na\al service of any foreign st4ite at war with a frieinlly state ; (3.) Any person who has Ix'on induced to end)ark inider ,i uii.Mepn sentation or false represent4ition of the service in which .'■ikIi |R»rson is to 1h' engaged, with the iuteut or in order that smli 1870] 33&3i VICT. c. 90.— ILLEGAL SHIPBUILDING. 791 person may accept or agree to accept any conunission or eiiiliall be guilty I' an offence against this Act, and till' following consequences shall ensue ; tliat is to say, (1.) The offender shall be punishable by fine and inii>ri.sonnient, or either of such punishuicnts, at the discretion of the court before which the offender is convicted ; and iniprisoniuent, if awaiiled, may be either with or without hard labour; and ('!.) Such ship shall be detained until the trial and conviction or acipiitlal of tiie master or owner, and until all penalties intlictcd (III the master or owner have been paid, or tlas master oi "Wiier has given security for the payment of such iM'iialties to the .satisfaction of two justices of the peace, or other nuigistrate or magistrates having the authority of two justices of the peace ; and (a.) .111 illegally enlisted persons shall immediately on the discovery of the ott'eiice be taken on shore, and shall not be allowed to return to the ship. Illegal Shipbuilding and Illegal Expeditions. 8, 11 iiiiy person within Her Majesty's dominions, without the licence 'if ller Majesty, does any of thf following acts ; that is to siy, (1.) Builds or agrees to build, or causes to be built any ship with intent or knowledge, or having reasonable cause to believe that the same shall or will Ik* employed in the military or naval service of any foreign state at war with any friendly state; or ('!.) Issues or delivers uuy coiuuiission for any ship witn intent or knowledge, or having rea.sonable cause to believe tliiit the .same shall or will be employed in the military or naval ser-.ice of any foreign state at war with any friendly state ; or (3.) E(iuips any ship with intent or knowledge, or having reasonalile cause to believe that the same shall or will be employed in the military or naval service of any foreign state at war with any friendly state ; or (4.) IJespatches, or causes or allows lo be despatched, any ship with intent or knowi;'dge, or having reasonable cause to believe tliat the .same shall or will l)e employed in the military or naval .service of any foreign state at war with ai v friendly state ; SiK'li [H'fsen shall be tleemed to have committed an otTeiiee against this .\it, mill the following coiise(piences shall ensue : (I.) The oil'eiider shall be punishalilc by fine and iiii|)ri'.oiinient, or either of such punishments, at the di.seretion of the court before which the otleiKh'i is coii\ i Ih* built, or e<|iiip[)ing a shi|t ill iiiiv iif the cases aforesaid, in pursuance of a contract made before the comiiii'iii t'inent of such war as aforesaitl, shall not Ite lial)le to any of tlio [K'nalties impo.sed by this section in respect oi such building or e(piii>|iiig if ho satisfies the eoiiditions following ; that is to Miy, (1 ) If forthwith upon a piwlamati*)n of neutrality U'iiig i^slled by Her Majesty, hi' gives noti«H' to the >Secrftarv of Statr that he I'l'iiulty nil illciriil sliip- )iuilall, nntil the •ontniry is |)i-o\((|. I, deemed to lia\e been built with a view to bein;; so eiiiploNiij, iim! tin burden shall lie on the builder of sueh ship of proving llini he iliil mi,i know that the ship was intended to be so employed in the niililtirv m naval s»-r\ iee of sueh forei};n state. 10. 11 i>'iy person within the dominions of Her ^^lje^ty, iiii,| wjiIkmh the lieenee of Her Majesty, — My addino to the numbei- of the o;uns, or by ehanoinjr (how on ],„;».] for other };nns, oi' by the addition of any e(piipinent for \v,ir, im'reiiMx.i an<;mi 'its, or i-roeurcs to 1k' inerease'.l nv anj^mented, or i> knowiin;!'. eoneerned in increa offender is roii\ ieted ; and imprisonment, if awanleil, niiiy \>^ either with or without hard labour. 11. If any |K'rson within the limits of Her Majesty's (loiiiinioii> .mil without the licence of Hei' Majesty, — l'repai'«'s or lits ont any luual or military expediliuii to [nwA a;;ainst the doniiniu'js of any friendly state, the followinjj euiiH'(iiniiri- .shall ensue : (1.) Kvery person on<;ali inents, ai the discretion of the court before which tlie olTiinl'i is com ieted; and imprisonment, if awarded, may he eitlnrwiili or without hard laliour (\1.) All ship^, and theii' ecpiipnients and all anus and niiiiiitiiniMil war, used in or forming part of such expedition, sliall l» torfeited to Her Majisty. I'uiiiiihiiii'iit of 12. Any [M^rson who aids, abets, coinisels, oi' procures the coniiniv:"ii iu'cig.-suric.>^. of any olVence apiinst this Act shall be lialiK- to Ik- tried and |Mini«liiil "' a jirincipal oiTender. I'elKilty Mil IIUIii);oiil naval or Mili- tary I'.Xpl.li- tionn witboiii lieoiKV. ijiniitation of tiTiii uf iin- prlHutnni'iit. 13. The ierni of imprisomnenf to be awarded in res[R'et of any nffiua iguinst this Act shall not exceed two yeurs. If f \m. Xi & 31 VICT. f. !)().— ILLEOATi PUIZK. VM 'Mv, 1111(1 wiilidiii Jllct/al Prize. 14, If. iliiiiiiti tilt' colli immiicc of iiiiy war in wliidi Iftr iMaji'.sty iniiy ' lie iiciili'ill, iiiiy ship, floods, or iiu'rcliitiKlisc ciijitiii't'd as prize of war wiiliiii till' icrrilorial jurisdiction of Her .Majesty, in violation of liie iii'Mtralitv of tliis retdiii, or t'aptured li\ any siiip wliieli may liave lieeii liiiiit, opiipi**')!, eoininissioned, or despatched, or tlie force of wiiich iiiiiy liiivi' Ih'cii mi<;iiiented, contrary to tlie provisions of this Act, are liroiijihl witiiiii till' limits of Her Majesty's duniinions hy the captor, or any a;;ent ol the I'liptor, or l»y any jteison havin;; ci.iiie into possession thereof with kiiip«lt'ilf,'<' that the same was priie of war so eaptun'd as afoiesnid, it slmll lie lawful for the orif^inal owner of such laize, or his ap-nt or lor iiiiv [KTsdii authorized in that hehalf liy the (lovernnient if the 1'oreij.ni >liili' til which sMcli owner lielonirs, to make application to the ("oiii't of Ailiniraltv for '.eizure and detention ol such prize, and the court shall, on ilnr iii'oiif of the facts, order such prize to lie restored, IviTv such order slia'l lie executed and carried into eil'ect in the saiiK^ iiiuiii.t'i', and siiltjecf to the same rijjiil of ap|M'al, as in <'asc of ai.y oi-iler iiiiiilr ill the exei-cise of the ordinary jurisdiction o*' such court ; and in thr iiKiiiitiiiie a III until a iiiial order has lieen made on such ii|)plicatioii till' CDiiit shall nave power to make all such provi; 'luial and other orders »> III the cure or custody of such captured shij), ifoods, or merehandise, mill (if till' sinie 1m' of perishalilc nature, or liicurrin;; risk of dcterioia- li(iii) fur the sale tlier 'of, and with res|>ect to tlie deposit or iiivestmeiit III' the pi'iiceeds of any such sile, as iniiy lie made liy such court in the ixi'ivisc of its ordinary jiirisdietion. 1 \|)(C't lit" iiUriii'is hy IHi-^ons ii^iiiiiN Aft. Lri/ttl Pi'uecdiire, 16. All} otVenee a(;ainst this Act shall, for all purposes ot mid incidental I III ilii' liiiil iiiid punishment of any [lerson f;iiilly of any siu'li oll'eiice, he ilrriiiiMl III liaM' U'cn committed either in the place in whicn the olVeiiee wiis wliiiliv iir partly eoinmitled, or in any place within Her Maji'sty's iliiiiiiiiioiis ill which the person who committed such olTencL' may lie. 17. Any elVcni c iii^aiust thi.s Act may lie descrilied in any indictment Vinue in iiintlu'r ilivilliieiit relatill}; to such oireliee, in cases where the mode of I'l ;-l><'i't h court of justice, such court, or, if there are more courts tliiiii oiii', till' court ha\ in;; the highest criminal jurisdiction in that place, limy, hy warrant or inslrument in the nature of a wai-raiil in this section iiieliiilcil in the term " warrant," direct that any olVciidcr cliarp'd with .iiHilIciiii' apiinst this Act sliiill lie r»'moved to sonlic'tiuii in ivspc'ct of i'orffiturc of sliips for offi'tic'os iigainbt Aef. I{uf{uliitiuiis IIH to ]irocir(liiigs anaiiist tla^ otil'iulvr iiiul H{;aiii«t tliu bhip. OffiiTrs autho- rize! to l<'iZ0 ot)riiiliii(; fcliips. Powers of oft'i- ctTH authorized U) suizc »hip!i. 794 33 & 34 VICT. c. 90.— LEGAL PROCEDURE. [1n7o. liitilile 111 the plaoc to wliifli Uv is rcmovcti, in llu' .s«im' inaDiicr as if liis offence had been comniitted at such phiee. Any winnint for the pinposes of this section may Im nddresiscd lo iji,. iniistcf of any ship or to any other person or pei-sons, and the pcisoii or pefsons to whom such warrant is nd(hessed siiall liave power to convcv th(^ prisoner therein named to any places or phiees iiaiiied iti mhIi warrant, and to (Udiver him, when arrived at such place or phiccs Jnti, the cu.stotly of any authority designated by sncli wtniant. Every prisoner shall, diiriiifj the time of his removal lUKhr uriv mkIi wiirrant as aforesaid, he deemed to he in the lej^al custody ol' the jxiMui or per.>*ons eni[iowered to remove him. 19. All iiroccediiif^s for the conth-mntition and forfeittnc of a ship, i,i ship :ind (Mpiipment, or arms and miniitions of war, in piiisiiaiici' of this Act shall require tlie sanction of the Secretary of State or such chid executive authority as is in this Act mentioned, and shall he had in thi' Court of Admiralty, and not in any other court : and the Coint of Admiralty shall, in addition to any power given to the court iiy this Aci, have in respect of any ship or other matti'r brought before it in piusii- aiice of this Act all powers which it has in the case of a ship or luattci brought before it in the exercise of its ordinary jurisdiction. 20. AVhcre any offence against this Act has been coiniiiittcd liv anv person by reason whereof a ship, or ship and «-(iuipm('iit, or aims imd ininiitions of war, has or have become liable to forfeiture, |)roc('('(lin;:-- may be institute to aii_\ special or genersd instructions I'loni the JJoard of Trade ; (2.) Any olliccr of customs or public officer in any Uritisli possession. subject nevertheU'ss to any sjHvial or general instructicns from the CJovernor of such possession ; (3.) An\ commissiom'd ofTicer on full pay in the loditarv st'r\iic of the Crown, sid)ject nevertheless to an\ special or ;;rnrriil instructions from his commanding oflicer ; (I.) Any eommissioiu'd olliccr on fidl pay in the naval wrviccof tin Crown, sidtject nevertheless to any special or geiiciid instruc- tions from the Admiralty or his superior otiicer, may seize or detain any ship liable to be seized or detained in pursuaiar of this A.ct, .'ind such officers arc in this Act referred to ii tln'"io«il authority"; but nothing in this Act contained shall derogate from ihc l)ower of the Court of / duiiralty t w) seized or f within Her Majesty'.s !iall have power to i.ssiie a win-rimt stating that there is reasomdile and IHolmlile cause for belit^ving as id'oresaid, and upon such warrant the local iiiitliority shall have iH)wer to seize and search such .-^hip, and to detain the sjiine imtil it has Im-cii either condemned or released hy process of law, or in manner herein-id'ter mentioned. Tile owner of th(! .shii» so detained, or his agent, may apply to the Court of Adniiridty for its release, and the court shall as soidi as possible put the matter of such seizure and detention in course of trial between the apiilieaiit and the Crown. If the applicant establish to the sitisl'action of the court that the .ship was not aiul is not lM>ing built, conninssioned, or e(piiii[)ed, or intended to k' despatched contrary to this Act, the sliip shall he jclea.sed and restoivd. If the applicant fail to establish to the satisfaction of the court that the siiip was not and is not bjing built, conunissioncd, or ecpiipped, or inteiiiled to 1h' despatched contrary to this Act, then the ship shall Ik; detained till ndeased by order of the Secretary of State or chief executive authority. riie court may "u ca.s«>s where no procecdii.gs arc pending for its con- (h'liinalioii release any "hip detained undi.' t.is section on the owner jjiviiij; security to the .satisfaction of tin '■ tnrt that the ship .shall not Im- I .aplove 1 .oiitrary to this Act, notwithstanding that the applicant may have failed to establish to the satisfaction of the coint that the ship was ii"t and is not being built, connni.ssioued, or inteiuled to 1)0 despatched wiitraiT t(, this Act. The Secretary of StaU- or tin? chief executiv'5 luthority may likewise release any ship detained under this section on tiio owner giving .swurity to the satisfaction of such Secretary of State or ihiet eM-eutiv author'ty that the .ship shall not 1h' employed contrary to ilii .Vet or ;iiiiy r-di use the ship without such .secinity if the Secretary "I State or ehi'f executive authority think lit ,so to release the same. It the court 1h! of opinion that 'her*; was not rca.sonahle and probable laise for the detention, r.nd if no such causi; appear in the eoiu'se of the piixir(lin2;'., the court shall haxc power to declare that the owner is to be iiideiiiiiilied hy the jxiyment of costs and (hnuages in respect of the detention, the •nnount thereof to In; assesstd hy the court, and any aiuoiuit so assessed .shall be payable hy the (.'ommissioiu'rs of the fntuMiry out of any moneys legally ai)piicahle for that purpo.se. The Court of Admimlty shall also have poNver to nuike u like order for the i, !! li; M iiiilii H , !i ' 1 1 u li 1 J 1 1 1 H i ill iW M p (: Spi'ciiil powii- of lllClll lltltllO- I'iiy l<> ililiiiii bhip. 796 33 & 34 VlCr. I'. 90.— FOREIGN SHIPS. [1H70. iinlfmuily of tin- owm-r, on the iiii|>licatioii of .•iiu-h owner to tin. ,.„||,| ill a summary way, in cases wliere tlie ship i.s released liv tlic oi-,|,.|. ,,1 llie Secretary of State or tlie eliief exeeiifive aiitliority, l)ei(.re ai.v ii|,h|i. eatioii is inadt- liy tlie owner or his a<;ent to tlie court for siuli iclcnM'. Nothing in tliis section eontaiiietl shall uifect aiiyproeeeiliii that the own«'r is to be i.ideniuilied by the payment of costs and diinmvrcs for tlu' det.iiner, all costs, charges, nnd e.\[)ensos incurred liv muIi own,;- in or about any proceedings for the condcmnution of sneli ^hip slmll lie added to the co.sts and daiuages iMiyable to him in respect of the (leiintiijii of the ship. Nothing in this section contained shall apply to any foreign noii-cuni- missioned ship desimtched from any part of Her i\Iajes-'s doiiiiiii(iii> after having come within them under stress of weather or in tiic coiiix' of a peaceful voyage, and u|)On which ship no litting out or e(|uip|iin<.' ui a warlike character has taken place in this country. 24. Where it is representt'd to any local authority, as dcliiud liv tin- Act, and such local authority believes the i'ei)resentalion, that tiiciv is n reasonable and probalile cause for believing that a ship within JItr Majesty's dominions has been or is lieing built, commissioned, (ii'('i|iii{i|H'i| contrary to this Act, and is about to be taken la^yond the limits ol' mkIi dominions, or that a shi|) is about to be (h'spatched contrary to this .\(i, it shall be the duty of such local authority to detain such shi|), iiml I'diiii- with to communicate the fact of such detention to the Secretiny of Statf or chief executive luithority. I'^pou the receipt of .such commuuicatioii the Secretary oi State (ir chief e.vccutive authority may order the ship to be released if lii' tli'iik- there is no cause for detaining her, but if siitistied that there is iviiviiialiii' and probable cause for belie\ ing that such shii) was built, emniiiissionid, or (Mpiipped or intended to be despatched in contravention of this Act, lie shall issue his warrant stjiting that there is reasonable and pro! lalilr tails' for belicv ing as aforesaid, and upon such warrant lieing issued I'lirllKr |iroceedings shall be bati as in cases when; the seizure or di'teiilioii liiis taken place on a warrant issued by the Secretary of State witlioiit aiiv communication from the local ;i'.;t'.iority. Where the Secretary of State or chief executive authoiily onlcis tlir .ship to be released on the receipt of a connnunicatioii fidiii the iiKai authority without issuing his warrant, the owner of the ship sluill 1m' in- demnilied by the payment of costs and damage's in respect of tlu' detention upon application to the Court of Admiralty in a siniiiiuiiy wny in like mamieras he is entitled to be indemnitied where the Secietiin ol State having issued his warrant under this Act relea.ses the ship Ix'lon any application is niiuh' by the owner or his agent to the court for ^^lali relei se. 25. The Secretary of Stiite or the chief executive authority iimy. liv other pliiif pure as to tlie (lestiiiatioM nt' iinv eiiiiiloved till' Exi'ivist' of powers of warrant, empower any person to enter any dockyard or within Her Majesty's dominions and intpiire as to the ch'stii ship which may appear to him to be intended to be eiii|i. _ naval or military s«'rvice of any foreign state at war with a friemlly stiilo, and to search such ship. 26. Any powers or jurisdiction by this Act given to the Seiivtiuv ol State may be exerciseil by him throughout the douiinious of Her Jhiji'^tv, in IS70.] 33 & 34 VICT. c. 90.— INTERPRET ATN". CLAUSE. 707 iind siieli powors nnd jurisdicition may nl«o lie oxorcisod by nny of tlxf following olficors, in this Act referred to iih the chief exceutive authority, Avilliiii tlipir res|)C(!ti'e jurisdictions; that is to say, (1.) In fnldiul l»y the Lord Lieutenant or othei- tiie chief governor or governors of Ireland for the time In-in};, or tiie Chief Secretary to the Lord Lieutenant : {"!.) In Jersey by the Lieutenant flovcrnor : (.1) In Guernsey, Aliicriiey, and Snrk, nnd the deiiendent islands by the Lieutenant Governor : (I.) in tiie Isle of Man by the Lieutenant Governor : (5.) In any British possession by tho Governor. A copy of any warrant issued by a Secretary of State or by any officer imtliori/Hl in pursuance of this Act to issue such warrant in Ireland, the Channel Islands, or the Isle of Man shall be laid before Parliament. 27. An appeal may 1m' had from any decision of a Court of Admindty under tills Act to the same tribunal, and in the sunc manner to and in wliicii an ai)pi'al may be had in cases within the ordinary jurisdiction of tlif court MS a Court of Admimlty. 28. Subject to the provisioi's of this Act, providing for the award of (liiiiia^i's in certain cases, in respect of the seizure or detention of a >lii|i liy the Court of Admiralty no danuiges shall be payable, and no (iHicir Df local authority shall be responsible, either civilly or criminally, ill ri'SiKiit of the seizure or detention of any ship in pursuance of this .\cl, 29. Ill" Secretary of State shall not, nor shall the chief executive iiiitliorily he responsible in any action or other legal pnx'ecdings wliat- sni'vor for any warrant issued by him in pinsuancc of this Act, or be ixaiiiinnlile as a witness, »'xcept at his own request, in any comt of jibtico in respect of the circumstances whicii led to the issue of llu; warrant. hiterpretatic.i ( Uaiise. 30. In this Act, if not inconsistent with the context, the following Icniis have the meanings herein-after respectively assigned to them ; I hat is to siy, " B'oicigii state " includes any foreign prince, colony, jirovince, or part of any pro\ inco or peo|)le, or any person or persons exer- cising or assuming to exercise the ])owers of government in or over any foreign country, colony, province, or part of any iMovince or ])i'ople: "Military service" shall include military telegraphy, nnd any other em- ployment whatever, in or in connexion with any military operation : " Xiival .service" shall, as resjiects a jierson, include service as a marine, t'in[)loymcnt as a pilot in piloting or directing the course of a ship of war or other ship, when such ship of war or other ship is iM'ingused in any military or naval operation, and <.ny employment whatever on board a shi[) of war, transport, store ship, privateer or ship under letters of manpie ; and as respects a shifi, include any user of a ship as a transport, store ship, privateer or ship under letters of marque : '' United Kingdom " includes the Isle of Man, the Channel Islai-ds, ami other adjacent islands : " British posse.ssion " means any territory, colony, or jilace being part of Her Majesty's dominions, and not part of the I'nited Kingdom as defined by this Act : Secretary of Statfi or ehiof excciitivH autlioritv. Appeal from Court of Ailini- ni'.ty. Indfninily to officer-'. Inilemiiity to JSeeretiiry or" Stale or ellief ixeciilive authority. Iiiterprotntioii of tenil'i. " l'orei(,'ii state :" " Militjiry service :" " Naval service :" " Uuited Kiugdoni :" " Uritish possession ;" 'i ( I r I'M f ■" 1 iiill' 11 798 " Court of Admiriilty :" " Shi]. :■• " Duiltling :'' "Kquii-piiig; " Ship mill t'qiiijmu'iit :' " MllsttT." Rppoiil of Fon-igii Jln- liNtmi'iit Apt. SO (ioi). 3. 0. OS). Sftvinp as to ootnniiso'ioncd foreign ships. Penalties not to extend to persons en- tering into niilitJiry service in Asia. 69 Geo. 3. c. 69. s. 12. 33 & 34 VICT. c. 90.— REPLAL OF ACTS. [1«70. " The Secretary of Htato :" " Oovenior :" " The Secretary of State" sliall mean any ono of Her Majesty's Principal Secretaries of State : " The Governor " uliall as res|)e('tH finfin mean tlie Onvernor Oeiiomj or the Governor of any presidency, and wliere a Hritisli possessidn consists of several constituent colonies, mean the Governor (ieneii,! of the whole possession, or tlu! Governor of anv of tlie ecu. stitnent colonies, and a.s respect.s any other Hritisli possession it shall mean the olKcer for the time lieinj; adniinisferiiifj (lie L'ovein. ment of such possession ; also any (H-rson aetinf; for or in the capacity of a Governor shall lie included tinder the term " Cm. vernor " : "Court of Ailniiraity " shall mean the High Court of Adniirnlivnf ICiif/lnml or Ireland, the Court of Session of Srotlmid, or nm Vice- Admiralty Court within Her Majesty's dominions; "Ship" shall include any ilescription of lioat, vessel, tloatin;; Imttcrv, or Hoatin;; craft ; also any description of lioat, vessel, or other erntt or Imttery, made to move either on the surface of or muler waicr, or sometimes on the smfaee of and sometimes under water: "Buildinfi;" in relation to a sliij) shall incliah' the doinj; aiiviui towards or incidental to the construction of a shin, ami all wnnN having relation to huilding shall he construed aecor(lin<;ly : " Eciuipping " in relation to a ship shall include the fiiriiishin<{ a s\m\ with any tackle, apparel, furniture, provisions, arms, nnmitions, m stores, or any other thing which is n.scd in or alioiit a siiip for iln' purpose of fitting or adapting her for the sea or for naval service, and all words relating to ecptipping shall lie construed accordingiv : " Ship and equipment " shall include a ship and eveiytliing in nr la-longing to a .ship: " Master " shall include any person having the charge or (•oniniiiiul of a sliii). Repeal of Aets, ami Saviiu/ Clauses. 31. From and after the commencement of this Act, an Act passed in the fifty-ninth year of the reign of His late Majesty King (leorf;e the Third, chapter .sixty-nine, intituled "An Act to prevent tiio enlistirif; or engagement of His Majesty's siilijecls to serve in foreign service iiini the fitting out or eipiipping, in His Majesty's dominions, vessels fm warlike piU'poses, without His Majesty's licen.se," shall he re|Kalnl : Provided that such repeal shall not affect any penalty, forfeiture, oi' other jHinishment incurred or to be incurre ^ A \ N> "% \ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 873-4503 i\ 'i' > 800 35 & 36 VICT. c. 29.— LIM. ON POWEES OF CAN. [ 1 8T2 Parliament of Canafla may logislnto for any territory not included in a province. Confirmation of Acts of Parlia- ment of Ca- nada. 32 & 33 Viet. (Canadi.in) cap. 3. 33 Viet. (Canadian , cap. 3. Lirr^itation of powers of Par- liament of Canada to legislate for an established province. ditions as may be agreed to by the said Legislature, and may, with the like consent, make provision respectiri"' the effect and operation of any such increase or diminu- tion or alteration of territory in relation to any province afPected thereby. 4. The Parliament of Canada may from time to timo make provision for the administration, peace, order, and good government of any territory not for the time boino- included in any province. 5. The following Acts passed by the said Parhamcnt of Canada, and intituled respectively, — " An Act for the temporary government of Rupert's Land and the North Western Territory when united with Canada;" and " An Act to amend and continue the Act thirty-tAvo and thirty-three Victoria, chapter three, and to establish and provide for the government of the province of Manitoba," shall be and be deemed to have been valid and effectual for all purposes whatsoever from the date at Avhicli they respectively received the assent, in the Queen's namo, of the Governor-General of the said Dominion of Canada, 6. Except as provided by the third section of tlii,s Act, it shall not be competent for the Parliament of Canada to alter the provisions of the last-mentioned Act of the said Parliament in so far as it relates to the Province of Manitoba, or of any other Act hereafter establishing new provinces in the said Dominion, subject always to the right of the Legislature of the Provinct^ of Manitoba to alter from time to time the provisions of any law respecting the qualification of electors and members of the Legislative Assembly and to make laws respecting elections in the said province. 35 & 36 VICT. (1872) c. 29. Amended by 39 &40 VICT. c. 43., 50 &51 VICT. e. LT An Act to amend the Act of the Session of the twenty-eighth and twenty-ninth years of the 1872.] 35 & 36 VICT. c. 39.-~NATU3ALIZATION. 801 reign of Her present Majesty, chapter . hun- dred {ind thirteen., intituled " An Act i autho- rize the Payment of Retirin/ Pensions to Colonial Governors." This Act was amended by 39 & 40 Vict. c. 43 [Me of Mm Act], and 50 & 61 Vict. c. 13. Part of preamble repealed by S. L. R. Act, 1893 (No. 2), c. 54. 35 & 36 VICT. (1872) c. 39. Preamble, and to " same as follows," repealed by S. L. R. Act, 1893 (No. 2), c. 54. [^See ante, p. 764, 33 & 34 Vict. c. 14.] An Act for amending the Law in certain cases in rela- tion to NaturaHzation. [25^A July 1872.] Tl ' HEIIEAS by a Convention between Her Majesty and the United VV Utates of America, supplementary to the Convention of the thir- teoiith (lay of May one thousand eight hundred and seventy, respecting imtuializiition, and signed at Washington on the twenty-third day of February one thousand eight huntlred and seventy-one, and a copy of wliicli is contained in the schedule to this Act, provision is made in relation to the renunciation by the citizens and subjects therein men- tioned of naturalization or nationality in the presence of the officers therein mentioned : And whereas doubts are entertained whether such provisions are alto- gether in accordance with the Naturalization Act, 1870 : And wiicreas other doubts have arisen with respect to the effect of " The Naturaliza- tion Act, 1870," on the rights of women married before the passing of that Act ; and it is expedient to remove such doubts : Be it emicted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited for all purposes as the Naturalization Act, Short title. 1872, and this Act and "The Naturalization Act, 1870," may be cited togpthpr as " The Naturalization Acts, 1870 and 1872." 2. Any renunciation of naturalization or of nationality made in Confirniniiim nianucr provided by the stvid supplementary Convention by the persons of renunc'i.ition and under the circumstances in tlie said Convention in that behalf men- of ""iti'inali'v tioned shall be valid to all intents, and shall be tleemed to be authorized yrntJon *^ """ by the said Naturalization Act, 1870. This section shall be deemed to take pfFect from the date at which the said supplementnry Convention took effect. 3. Nothing contained in " The Naturalization Act, 1870," shall i^iiving clauso deprive any married woman of any estate or interest in real or personal '*** •" I'loperty proix-rty to which she may have lieeome entitled ])reviously to the iwissing "' """'''"'d •if that Act, or affect sncli estate or interest to her prejudice. S 2840. 3 ID Ji .'Ml '■tM$J>i*f *^'"*'' '*^"*'*"^ * , 3 802 35 & 36 VICT. c. 39.— U.S. & ENG. CITIZENS. [1872. SCHEDULE. Convention between Her Majesty and the United States of America supplementary to the Convention of May 13, 1870, respecting XatuiHli- zation. Signed at Washington, 2Srd February 1871. [^Ratificatio7is exchanged at Washington, May 4, 1871.] Whereas by the second article of the Convention between Her Miiipsty the Queen of the United Kingdom of Great Britain and IreLind and the United States of America for regulating the citizenship of subjcots and citizens of the contracting parties who have emigrated or may emigrate from the dominions of the one to tiiose of the otlier paitv signed at London, on the 13th of May 1870, it was stipulated tliat the manner in which the renunciation by such subjects and citizens of their naturalization, and the resumption of their native allegiance, may Ic made and publicly declared, should be agreed upon by the goxci-nniciits of the resi)ective countries; Her Majesty the Queen of th(» United Kingdom of Great Britain and /re/awrf and the President of the United States of America, for the purpose of effecting such agicenient, Inuc resolved to conclude a supplemental Convention, and have named as their plenipotentiaries, that is to say ; Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, Sir Edward Tliornton, Knight Commander of the Most Honourable Order of the Bath, oikI Her Envoy Extraordinary and Minister Plenipotentiary to the Uniled States of America; and the President of the United States of America, Hamilton Fish, Secretary of State ; who have agreed as follows ; Article I. Any person being originally a citizen of the United States who had, previously to May 13, 1870, been naturalized as a British subject, mav at any time before August 10, 1872, and any British subject who, at the date first aforesuid, had been naturalized as a citizen within the United States, may at any time before May 12, 1872, publicly declare his renun- ciation of such naturalization by subscribing an instrument in writing, substantially in the form hereunto appended, md designated as Anuc.\ A. Such renunciation by an original citizen of the United States, of British nationality, shall, within the territories and jurisdiction of tiie United States, be made in duplicate, in the presence of any couit authorized by law for the time being to admit aliens to naturalization, or before the clerk or prothonotary of any such court : if the (hiclarant l)e beyond the territories of the United States, it shall be made in duplicate, before any diplomatic or consular officer of the United States. One of such duplicates shall remain of record in the custody of tlu; court or officer in whose presence it was ma<^le ; the other shall be, without delay, transmitted to the department of State. Such renunciation, if declared by an original British subject, of his acquired nationality as a citizen of the United States, shall, if the declarant be in the United Kingdom of Great Britain and Ireland, be made in duplicate, in the presence of a justice of the peace; if elsewhere in Her Britannic Majesty's dominions, in triplicate, in the presence of any judge of civil or criminal jurisdiction, of any justice of the peace, or of any other officer for the time being authorized by law, in the place in which the declarant is, to administer an oath for any judicial or other legal purpose ; if out of Her Majesty's dominions, in triplicate, in the presence of any officer in the diplomatic or consular serxice of Her Majesty. 1872.] 35 & 3(J VICT. c. 45.— TEEATY OF WASHINGTON. 803 AnTICLE II. Tlie contracting i^rties hereby engage to communicate each to the other, from time to time, lists of the persons who, within their re.spective dominions and territories, or before their diplomatic and consular officers, linvp dec-vred their renunciation of naturalization, with the dates and places of making such declarations, and such information as to the abode of the declarants, and the times an(l places of their naturalization, as they may have furnished. ARTICr.E III. The present Convention shall be ratified by Her Britannic Majesty, and by the President of the United Stales by and with the advice and consent of the Senate thereof, and the ratifications shall be exchanged at Washington as soon as may be convenient. ANNEX A. I, A.B.,of [insert abode], Imag originally a citizen of the United States of America [or a British subject], and having become naturalized within the dominions of Her Britannic Majesty as a British subject [or as a citizen within the United States fl/'^wjer/ca], do hereby renounce my naturalization as a British subject [or citizen of the United States], and declare that it is my desire to resume my nationality as a citizen of the United States [or British subject], {Signed) A. B. JIade and subscribed before me . . . .in \_insert country or other sub-division, and state province, colony, lei/ation or consulate] this. . . dav of . . 18 . {Signed) E. F., Justice of the Peace [or other title]. i li i L.S. L.S. 35 & 36 VICT. (1872) c. 45. Preamble, and to "same, as follows" repealed by S. L. R. Act, 1893 (No. 2), c. 54. See 38 & 39 Vict. c. 52. An Act to carry into effect a Treaty between Her Majesty and the United States of America. [6th Aug. 1872.] WHEREAS a treaty between Her IMajesty and the United States of America was signed at Wash- ington on the eighth day of IVIay one thousand eight hundred and seventy-one, and was duly ratified on the seventeenth day of June of that year, which, amongst other things, contained the articles set out in the sche- dule to this Act : And whereas an Act intituled " An Act relating to the Treaty of JVaahington, 1871," has been passed by 3 B 2 f 804 35 & 36 VIOT. c. 45.— TREATY OF WASHINGTON. [1872. Suspension of Acts at variance with articles. Provision for extension of articles to Newfoundland. the Parliament of Canada for the purpose of carrviii"- into operation the said articles : And whereas an Act intituled " An Act relatiii"- to the Treaty of Washington, 1871," has been passed by the Legislature of Prince Edward's Island foi- tbe pur- pose of carrying into operation the said articles : And whereas the Congress of the United States of America have not as yet passed any Act for carrying into operation on the part of the United States the said articles [but see 38 & 39 Vict. c. 52. Awarded sum paid, and a balance of nearly 12,000^. paid into tlio Bri. Ct. Ch. to await distribution] : And whereas it is expedient to make provision by Act of Parliament for carrying into operation the said articles : Be it enacted by the Queen's most Excellent Majesty, by and Avith the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the autho^-ity of the same, as follows : 1. As soon as the law re.^ dred to carry into operation, on the part of the United States of America, the articles set out in the schedule to this Act has been passed by the Congress of the United States, and come into force, all Acts of Parliament and laws which operate to pre- vent the said articles from taking full effect shall, so far as they so operate, be suspended and have no cfPcct during the period mentioned in the article numbered thirty-three in the schedule to this Act. 2. Wlienever the necessary laws have been passed by the Legislature of Newfoundland and approved by Her Majesty for carrying into operation the articles in the schedide to this Act so far as they relate to Neicfound- land, it shall be lawful for the oflBcer administering the government of Newfoundland, at any time during the suspension, in pursuance of this Act, of the above-men- tioned Acts of Parliament and laws, by his proclamation, to declare that, after a time fixed in such proclamation for that purpose, this Act and the articles in the schedule to this Act shall extend, and the same accordingly shall 1872,] 35 & 36 VICT. c. 45.— LIBERTIES TO FISHERMEN. 805 extend to Newfoundland, so far as they are applicable thereto. 3. This Act may be cited as " The Treaty of Wash- short title, iiigton Act, 1872." SCHEDULE. Articles of the Treaty of Washington of the 8th May 1871 which are referred to in the foregoing Act. Akticle XVIII, It is ugi'eed by the High Contrncting Parties that, in addition to the lilKTty secured to the United States fishermen by the Convention between Great Britain and the United States, signetl at London on the 20th iliiy of October 1818, of taking, curing, and drying fish on certain feasts of the British North American colonies therein defined, the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty, for the term of years mentioned ill Article XXXIII. of this treaty, to take fish of every kind, except shellfish, on the sea coasts and shores, and in the bays, harbours, and creeks of the provinces of Quebec, Nova Scotia, and New Brunswick, and the colony of Prince Juiward's Island, and of the several i.slands thereunto adjacent, without being restricted to any distance from the shore, with permission to land upon the said coasts and shores and islands, and a'so upon the Magdalen Islands, for the purpose of drying their nets and curing their fish ; provided that, in so doing, they do not interfere with the rights of private property, or with British fishermen, iu the peaceable use of any part of the said coasts in their occupancy for the same purpose. It is understood that the above-mentioned liberty applies solely to the sea fishery, and that the salmon and shail fisheries, and all other fisheries in rivers and the mouths of rivers, are hereby reserved exclusive/y for British fishermen. Akticle XIX. It is agreed by the High Contracting Parties that British subjects shall have, in common with the citizens of the United States, the liberty, for the tei-m of years mentioned in Article XXXIII. of this treaty, to take fish of e^ery kind, except shell-fish, on the eiistern sea-coasts and shores of the United States north of the thirty-ninth parallel of north latitude, and on the shores of the several islands thereunto adjacent, and in the bays, harbours, and creeks of the said sea-coasts and shores of the United States and of the said islands, without being restricted to any distance from the shore, with permission to land upon the said coasts of the United Stales and of the islands aforesaid, for the purpose of drying their nets and curing their fish ; provided that, in so doing, they do not interfere with the rights of private property, or with the fishermen of the United States, in the peaceable use of any part of the said coasts in their occupancy for the same purpose. It is understood that the above-mentioned liberty applies solely to the sea fishery, and that salmon and shad fisheries, and all other fisheries, in rivers and mouth of rivers are hereby reserved exclusively for fisher- men of the United States. Article XX. It is agreed that the places designated by the Commissioners appointed under the first article of the Tx-eaty between Great Britain and the 806 35 & 36 VTCT. e. 45.— PRIVILEGES TO U.S.'s CITS. [1H72. 3 United States, coucliuled at IfVushinytvn on X\w otli of Juno 1851, iipon the coasts of Her Britannic Majesty's dominions and the Uuited States or places reserved from the common right of ''shing under that ticntv shall be regarded as in like manner reserved from the period timt such duties are imposed, the right ol' carrying granted luider this Aitiele in favour of the subjects of Her Britunnic Majesty. The Government of the United States may suspend the right of carrying granted in favour of the subjects of Her Britannic Majesty under this Article, in case the Dominion of Canada should at any tiiiu! deprive the citizens of the United States of the u.se of tlie canals in tlie said Dominion on terms of equality with the inhabit4ints of the Do- minion, as provided in Article XXVII. Article XXXI. The Go\ernment of Her Britannic Majesty further engages to uiop upon the Parliament of the Dominion of Canada, and the Legishituic of New Brunswick, that no export duty, or other duty, shall l)e levied on lumber or timber of any kind cut on that portion of the Anieiieim territory in the State of Maine watered by the river St. JoJin iind its tributarie.s, and floated down that river to the sea, when the sniiie is shipjied to the United States from the province of Xcw Jlnnisnicli. And, in case any such export or other duty continues to be levied nfiei' the expiration of one year from the date of the exch,;ng(^ of the ratili- cations of this Treaty, it is agreed that the Government of the riiitrd States may su.spend the right of carrying herein-before granted niider Article XXX. of this Treaty, for such period as such export or (jtliei' duty may be levied. Akticle XXXll. It is further agreed that the provisions anil stipulations of Artielos XVIII. to XXV. of this Treaty, inclusive, shall extend to the Colony of Newfoundland, so far as they are applicable. But if the Inipeiiiil Parliament, the Legislature of Newfoundland, or tlu; Congress of the TTnited States »\ia\\ not embrace the Colony of Newfoundland mXXww laws enacted for carrying the foregoing Articles into effect, then tliis Article shall be of no effect, but the omission to make provision by law to give it effect, by either of the Legislative Bodies afore.sjiid, .shall not in '.ny way impair any other Articles of this Treaty. Article XXXIII. The foregoing Articles XVIII. to XXV. inclusive, and Article XXX, of this Treaty, shall take effect as soon as the laws required to carry them into operation shall have been passed by the Imperial Parliament of Great Britain, by the Parliament of Canada, and by the Legislature of Frince Edward's Island on the one hand, and by the Congress of the United States on the other. Such assent having been given, the said Articles shall remain in force for the period of ten years from the date at which they may come iuto operation, and further, until the expiration of 1873,] 36 & 37 VICT. c. 15.— PUBLIC WORKS LOAN. 809 two years after cither of the High Contriictiiig Piirties shall have given notice to the ntlier of its wish to torininiite the same ; each of the High Coutructing Parties being at liberty to give .such notice to the other at the cud of the .said period of ten years or at any time afterwards. 36 & 37 VICT. (1873) c. 15. Sec. 9 repealed by S. L. R. Act, 1883. In the Title, the words " Commissioners of Her Majesty's," and from "and to repeal," to end of title; Preamble, and to " same as follows " repealed by S. L. R. Act, 1893 (No. 2), c. 54. An Act to authorise the Commissioners of Her Majesty's Treasury to guarantee the payment of a loan to be raised by the Government of Canada for the con- struction of public works in that country, and to repeal the Canada Defences Loan Act, 1870. [21s/ J}(li/ 1873.] WHEREAS one of the terms and conditions on wliieh the colony of British Columbia was admitted into union with the Dominion oi Canada, by an order in Council of the I6th day of May 1871, was that the Government of the Dominion should secure the construction of a railway) (in this Ac^ referred to as the Pacific Railway) to connect the scaboar(i of British Columbia with the Railway system of Canada, in maunur more particularly mentioned in the schedules to such Order : And whereas the Govei-nment of the Dominion of Canada propose to laisc l)y way of loan for the purpose of the construction of the Pacific Waihviiy, and also for the improvement and enlargement of the Canadian cauals, a smn of money not exceeding eight million pounds : And whereas by an Act of the Parliament of Canada oi the year 18G8, chapter forty-one, the Governor in Council was authorised to raise by way of loan upon the guarantee of the Commissioners of Her Majesty's Treasury (in this Act referred to as "the Treasury"), for the purpose of the construction of the fortifiwitions therein mentioned, sums not exceeding one million one hundred thousand pounds : And whereas by the Canada Defences Loan Act, 1870, the Treasury 33 & 34 vict. were authorised to guarantee the payment, of the principal of such loan c. 82. and of interest thereon at a rate not exceeding four per cent. : And whereas no portion of the last-mentioned loan has been raised, and no such guarantee has been given : And whereas it is expedient to authorise the Treasury to guarantee a portion, not exceeding two millions five hundred thousand pounds, of snch loan of eight million pounds for the above-mentioned purposes, and to gnarnntee a further portion of the said loan not exceeding one million one hundred thousand pounds in substitution for a guarantee of a loan under the Canada Defences Loan Act, 1870: Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, 810 30 & 37 VICT. c. 45.— PUBLIC WORKS LOAN. [1H73. Short title. Power tn Trea- sury to gimriui- too luun. O'DiulitioiiH of guiiruntte. Application of sinking fund. niid Commons, in tl'.is picsciit lWliar.H'nt iiHscmhK'd, und liy flic aiitho- rity of Iho .sauio, us follows : 1. Thi.s Act may be cited as " The Canada (Public Works) Loim Act," 1 873." 2. riic Treasury may jfuarantce, in such manner and lorn iind o:, such conditions as thoy think fit, the nayment of the i)rinci|)al of inid interest (at a rate not exceedinj; foiu- per cent, per annum) on all or any [)art of any loan raised by tlu- Government of Canada iuv llie |)iir|i(jM. of tho consti'uction of the I'aciiie llailway, and the iniprovcmciit mid enlargement of tho Canadian canals, .so that the total amount so jruii- rantee« invested and iipplicd as part of nucIi Mnkinn fund. 6, Evi ry Act passed by the Pailiamont of Canada whicdi in any way iiiiniiiis the priority of tins chargo npon the consolidated revenue fund of r(//irt^/« created by that Parliament of tlu! loan guarantccnl under this Alt, mid the interest and Minkin>r fund thereof, and tho sums paid out of the I'diisolidated Fund of the United Kingdom and the interest thef-jn, slmll, so I'ur only as it impairs such pi-iority, be void, uidess such Act has k't'U reserved for the siguilication of' Her Majesty's pleasure. 0, 'J'he Treasury are hereby authorised to cause to be issued from time to time, out of the growing produce of the Consolidated Funil of ihc United Kingdom, such sums of money as nuiy at any time be required to be paid to fulfil the guarantee under this Act in respect litlitT of principal or interest. 7, The Treasury may from time to time certify to one; of Her Majesty's Principal Secretaries of State tho amonnt whi(!li has been piiid out of the Consolidated Fund of the LJniteil Kingdom t'> fulfil the j;iuiiiuitee under this Act, and the date of such payment ; such . i itilicale shall hoeoinmuniented to the Oovernor of Canada, and shall be conclusive evidence of the amount having been so paid and of the tim( when tho sime wai so paid. 8. The Treasury shall cause to be prepared and Imd before hot'; llonsos t' "^ I'liament a statement of any gimrantie givcm un '>'• this Aet, and an account of all sums issued «ut of the Cons()lidati'd Fund of t'le United Kingdom for the purposes of this Act, within one month ;ilter the same are so given or issued, if Parliament be then sitting, or if ParliauKMit bo not sitting, then within fourteen days after tho then ue.\t meeting of Parliament. 9. The Canada Defences Loan Act, 1870, is hereby repealed. 37 & 38 VICT. (1871) c. 20. Sec. 4j amended by 43 & 4i4< Vict. c. 20. s. 54, and by 15 & 46 Vict. c. 72. s. 17. An Act to make provision respecting the Stamp Duty on Transfers of Stock of the Government of Canada. \3Qth June 1874.] WHEREAS certain stock of the Government of Canada, known by the name of Cana dealt with through the medium of the register. A coupon so issued shall be deemed to be a cheque on t banker within the meaning of any law or enactment for the time beinf, in force relatinn; to cheques other than any enactment relating to stamp duties. Stamp duty on 8. Where a composition has not been paid in respect of th(> stamp stock certificate duty chargeable on the transfer of any stock to whir'h this Act api)lies, a to bearer. stock certificate to bearer issuetl in respect of that .stock shall be clanged with a stamp duty of two shillings and sixpence for every full snm of one hundred pounds, and also for every fraction less than one hundred pounds, or over and above one hundred pounds or a multiple of one hundred pounds, of the nominal amount of stock described in such certificate. Renewal of 9. On the expiration of the period for which the coupons attached to coupons or a stock certificate to bearer have been issued under this Act, the certificntc. certificate may be exchanged for another certificate with coupons for n 5RTS. [1874-7. of stock in certificate to bearer. Conversion of stock certificate to bearer into nominal certifi- cate. 1874-7] 37 & 38 c. 26., 40 & 41 VICT. c. 59.— BOND REG. 815 further period : Provided, that the certificate i-ssued in exchange, if the stamp duty has not been compounded, shall be duly stamped, but in such caso the Commissioners of Inland Revenue shall on production to them of both certificates duly stamped, and subject to such regulations as thpy may from time to time make, grant allor/ance for the stamp on the former certificate. 10. On delivery to the registrar of a stock certificate to bearer issued Conversion into under this Act, and of all unpaid coupons belonging thereto, the nominal stock registrar .sliall enter the bearer in the register as proprietor of the stock described in the certificate, and thereupon that stock shall become transferable and the dividends thereon payable ns if no stock certificate to bearer had been issued in respect of that stock. 11. If the bearer of a stock certificate to bearer issued under this Act insert therein the name, address, and (juality of some person, such certificfitfl shall cease to be transferable, and the person so named, or some person deriving title from him by devolution in law, shall alone be recognised by the registrar as entitled to the stock described in the certificate, and shall be entitled to be entered in the register as proprietor of tliat stock in like manner as if he were the bearer of a stock certificate to bearer, but if deriving his title by devolution in law he shall produce such evidence of his title as the registrar may reasonably require. 12. A trustee shall not apply for or hold a stock certificate to bearer Trustee not to issued under this Act, unless expressly authorised to do so by the terms *PP|y ^or stock of his trust. But this provision shall not impose on the registrar an certificate to obligation to inquire whether a person applying for a stock certificate to hearer is or is not a trustee, or subject the registrar to any liability in the event of his issuing a stock certificate to bearer to a trustee, or invaliih'.to any stock certificate to bearer issued. 13. If any stock certificate to bearer issued under this Act is lost. Loss of stock mishiid, or destroyed, the registrar shall, on such indemnity being given certificate to as he may reasonably require, and on payment of the expense of the Nearer, issue, issue a fresh stock certificate to bearer in the place of the certificiite so lost, mislaid, or destroyed. 14. Stock described in a stock certificate to bearer issued under this Stock in cert-"- Aet shall, save as relates to the mode of transfer and payment of divi- cate to bearer (lends, be subject to the same incidents in all respects as if it had continued to be transferable in the register. to have inci- dents of other stock, except a.s to transfer, &c. Register. 15. No notice of any trust in respect of any colonial stock, or of any Notice of trust, certificate thereof, or of any coupon annexed to such certificate, shall be entered in the register or receivable by the registrar or by the govern- ment of the colony. 16. The registrar may, before the inscription of any stock, make with Entry in re- resiHict to the transfer of such stock, or otherwise in relation to such gistor of con- stock, reasonable regulations not inconsistent with the provisions of this <^'*'o"8 ."■id j^g^ regulations. A printed copy of the documents containing the authority for and conditions of the issue of stock to which this Act applies, a ad of all regulations with respect to the transfer of gnch stock or otherwise iu relation to such stock, shall be entered in the register of the stock. \ \ Register to bo evidence. Information to be given re- specting regis- ter. 816 37 & 38 c. 26., 40 & 41 VICT. c. 59.— BOND RlilG. [1874-7. 17. The register kept in pursuance of this Act shall on its mere production from the custody of the registrar be evidence of all matters entered therein, and, as regards persons entered therein as proijijctois of colo'iial stock to which this Act applies, of the title of those pi'isons to to that stock. 18. The registrar shall keep in a separate book a list of the stock- holders on whose stock the dividends have been unclaimed for ten years together with their registered twldresses and description, and such list shall be open for inspection at the ustial hours of transfer tipon payment of such fee, not exceeding two shillings and sixpence, as may bo fixed bv the regulations. The registrar shall give within a reasonable time after application a certificate stating the following particulars in relation to any colonial stock of which he is registrar, or any part of such stock, or such of those jjarticulars as may be required by the applicant, namely, — (a.) The total amount issued by the colony, and the total in.scribed in the register; and (6.) The total number of the persons in whose names the stock or part is originally inscribed, or after the register of such stock or part has been once closed as regards transfers, the total number of the stockholders at the last preceding date at which the transfer books were closed ; and (c.) The total number of each class of persons in whose names the stock or part is originally inscriliod, or after the register of tlie stock or part has been once closed as regards transfers of eiuii class of stockholders at the last preceding date at wliicli tlio transfer books were closed, the classification being accordini' to the amount held, omitting fractions of two hundred pounds; and (rf.) A copy or extract certified by the registrar or by some officer • appointed for the purpose to be a true copy or extract of anv conditions or regulations required by this Act to be enteriil in the register. Provided that the registrar shall not be required to give any such cer- tificate in relation to any colonial stock, or part of such stock, until after the expiration of one month after the stock or part of the stock to which the certificate relates has been inscril)ed. Within a reasonable time after the application of any person who is n stockholder of any colonial stock to which this Act applies, the registrar shall give him a list of the registered names and addresses of tlu' stock- holders of such stock at the last preceding ilate at whicii the register was closed as regards transfers. The registrar before giving a certificate or list under this section may require payment of sucli fee not exceeding five shillings and a further sum of twopence for every folio of seventy-two wortls, or in tlu' case of a list of names and addresses of sixpence for each name and address, as the registrar may from time to time fix. Any ("irtificate or li.st given nn» » 1878-9 £ 1,831,200 500,000 1,088,000 2,279,700 Leaving in the hands of the public with option of inscription .... £5,698,900 £6,301,100 37 & 38 VICT. (1874) c. 27. Preamble repealed by S. L. R. Act, 1893 (No. 2), c. 54. An Act to regulate the Sentences imposed by Colonial Courts where jurisdiction to try is conferred by Imperial Acts. [30^^ June 1874.] WHEREAS by certain Acts of Parliament juris- diction is conferred on courts in Her Majesty's colonies to try persons charged with certain crimes or ofPences, and doubts have arisen as to the proper sen- tences to be imposed upon conviction of such persons; and it is expedient to remove such doubts : Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spirit- ual and Temporal, and Commons, in this present Parlia- ment assembled, and by the authority of the same, as follows : 1. This Act may be cited for all purposes as The Courts (Colonial) Jurisdiction Act, 1874. 2. Eor the purposes of this Act — The term " colony " shall not include any places within 1874,] 37 & 38 VICT. c. 41.— COL. ATTORNIES. 821 the United Kingdom, the Isle of Man, or the Channel Islands, but shall include such territories as may for the time being be vested in Her Majesty by virtue of an Act of Parliament for the Govern- ment of India, and any plantation, territory, or settlement situate elsewhere within Her Majesty's dominions, and subject to the same local govern- ment ; and for the purposes of this let, all planta- tions, territories, and settlements under a central legislature shall be deemed to be one colony under the same local government. ?,. When, by virtue of any Act of Parliament now or At triM« in any hereafter to be passed, a person is tried in a court of any hy virtue of colony for any crime or offence committed upon the cOTrts'oni^"'^' liisrh seas or elsewhere out of the territorial limits of po^^rcd to o .... P"*** sentences sucli colony ^ and c I the local jurisdiction of such court, as if crimes .,, ..1. 11 !• .1... 1 liail been coni- 01' if committed withm such local jurisdiction made mittedintho punishable by that Act, such person shall, upon con- viction, be Hable to such punishment as might have been inflicted upon him if the crime or offence had been com- mitted within the limits of such colony and of the local jurisdiction of the court, and to no other, anything in any Act to the contrary notwithstanding : Provided always that if the crime or offence is a crime or offence not punishable by the law of the colony in which the trial takes place, the person shall, on conviction, be liable to such punishment (other than capital punishment) as shall seem to the court most nearly to correspond to the punishment to which such person would have been liable in case such crime or offence had been tried in England. ' SeeMacleodv. Att.-Gen. of New South Wales ante, sec. 101, p. 417. colony. i : I I 'I 37&38VICT. (1874)c. 41. Preamble repealed by S. L. R. Act, 1893 (No. 2), c. 64. An Act to amend " The Colonial Attornies Relief Act." [30^ July 1874.] WHEREAS by the Colonial Attornies Relief Act certain provisions 20 & 21 Vict, are made for regulating the admission of attornies and solicitors c. 39. ! i 822 38 & 39 VICT. c. 38.— POWE«S OF CAN. H.C. [1875. I'iXamination and ceiising to practiB3 di ..penst'd with where colonial attorney and solicitor has actually practised for seven years, and passed examination previous to admission. Short title. •10 At 31 Vict. 0. 3. of Colonial Courts in Her Majesty's Siipi-rior Courts of Law and Eiiuitv in Enf^land in certain ca.ses, and it is considered just and (Mjuitalilf to amend the said Act : Be it therefore enacted by the Queen's most Excellent Majestv hy and with the advice and consent of the Lords Spiritual and 'IViinmnii and Commons, in this present Parliament as.sembled, and liy tlic aiitlKi-' rity of the same, as follows : 1. So much of the Colonial Attornies Relief Act as enacts that no person shall be deemed (jualified to be admitted as attorney or solicitor under the provisions of the said Act unless he shall pass an e.vauiination to test his fitness and capacity, and shall further make afR(ln\ it that lie has ceased for the space of twelve calendar months at the least to inaitisc as attorney or solicitor in any colonial (!Ourt of law, and also so mucli of the said Act and of any orders and regulations made thereunder as relate to such examination, shall not apply to nor shall compliance; therewith respectively be required of any person seeking to be admitted us attorney or solicitor under the provisions of the said Act who shall have been in actual practice for the {Ksriod of seven years at the least as attorniv and solicitor in any colony or dependency as to which an Order in Council has been or may be made as mentioned in the said Act, and who shall have served under articles and passed an examination [jrcvioiislv to his admission as attorney and solicitor in any such colony or dependcnev. 2. The expression " The Colonial Attornies Relief Act " shall hence- forth be deemed to include this Act. 37 c& 38 VICT. (1874) c. 77. This Act referred to colonial aud other clergy : Init it is not considered of sufficient importance to give it. 38 & 39 VICT. (1876) c. 38. Preamble and to " same as follows " and see. 1 to " so repealed" repealed by S. L. E. Act (No. 2), 1893, 56 & 57 Vict. c. 54. An Act to remove certain doubts with respect to the powers of the Parliament of Canada under section eighteen of the British North America Act, 1867. [19«A July 1875.] WHEEEAS by section eighteen of the Jiritish North America Act, 1867, it is provided as follows : " The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof re- spectively, shall be such as are from time to time defined ^wn 1875.] 38 & 39 VICT. c. 38.— POWERS OF CAN. H.C. 823 by Act of the Parliament of Canada, but so that the same shall never exceed those at the; passing of this Act held, enjoyed, and exercised hy the Commons House of Parliament of the United Kingdom of Greai Britain and Ireland, and by the members thereof;" And whereas doubts have arisen with regard to the power of defining by an Act of the Parliament of Canada, in pursuance of the said section, the said privileges, powers or immunities, and it is expedient to remove such doubts ; Be it therefore enacted by the Qveen's most Excellent Majesty, by and with the advice ;nd consent of the Lords Spiritual and Temporal, and Commons, in this present ParUament assembled, and by the authority of the same, as follows : — 1. Section eighteen of the British North America suijstitution of Act, 1867, is hereby repealed, without prejudice to any- salion I's " f °' thing done under that section, and the following section '^^^ ^' ^ "'' shall be substituted for the section so repealed : — [See for this ante p. 11, where the new section is set out in place of the section repealed.] 2. The Act of the Parliament of Canada passed in Confinnution the thirty-first year of the reign of Her present Majesty, iiament°of "' chapter twenty-four, intituled " An Act to provide for gf^^^j vict. oaths to witnesses being administered in certain cases <'• 24. for the purposes of either House of Parliament," shall he deemed to be valid, and to have been valid as from the date at which the royal assent was given thereto by ; the Governor-General of the Dominion of Canada. 3. This Act may be cited as the Parliament of Canada short titi.. Act, 1875. 38 & 39 VICT. (1875) c. 53. An Act giving effect to the Canadian Copyright Act of 1875, 38 Vict. c. 88. ^See International Copyright Act of 1886, po8t.'\ 824 40 & 41 VIOT. c. 23.— FORTIFICATIONS. 40 & 41 VICT. (1877) c. 23. [1H77, In sec. 1 the words, " Commissioners of H^r Majesty's," repealed by 8. L. E. Act, 189 1-, c. 66. An Act to make bettor provision respecting lortificii. tions, works, buildings, and land situate in a Colony and held for the defence of the Colony. [2Srd July 1877.] BE it enacted by the Queen's most Excellent Majesty, by uiul with the advice and consent of the Lords Spiritual and Temporal, imd Commons, in this present Parliament assembled, and by the authoritv of the same, as follows : 1, It shall be lawful for Her Majesty, on the representation of one of Her Majesty's Principal Secretaries of State and of the Conimissioiiprs of Her Majesty's Treasury that it is expedient so to do, by Order in Council to vest any fortifications, worlss, buildings, or Ifind in am colony held in trust for the defence of that said offence, then if that [lait is ijiu United Kingdom a Secretary of State, and if that part is a ]5iitisli posses.sion the governor of that possession, may, if he think fif, on tlie request of such person, cause hira to be sent back free of cost and with as little delay as possible to the part of Her Majesty's dominions in oi' on his way to which he was apprehended. 9. This part of this Act shall apply to the following offences, nnmciv, to treason and piracy, and to every offence, whether called felony, mis- demeanor, crime, or by any other name, which is for the tinic lieing punishable in the part of Her Majesty's dominions in which it wn- committed, either on indictment or information, by imprisonment with hard labour for a term of twi'he months or more, or by any gieater punishment; and for the purposes of this section, rigorous imi)risnnnient, and any confinement in a prison combined with labour, by whatevci' name it is called, shall be deemed to be imprisonment with lianl hdwuv. This part of this Act shall apply to an offence notwithstandinj; that by the law of the part of Her Majesty's dominions in or on his way 'o which the fugitive is or is suspected of being it is not an offence, or not an offence to which this part of this Act applies ; and all tlie provisions of this i)art of this Act, including tho.se relating to a j)ro\ isionai wanniit and to a committal to ])rison, shall be construed as if the offence were in such last-mentioned part of Her Majesty's dominions an ofleiue to which this [)art of this Act applies. 10. Where it is made to appear to a superior court that by reason of the tri\ ial nature of the case, or by reason of the application for the rettu'u of a fugitive not being made in good faith in the interests of justice or otherwise, it would, having regard to the distance, to the facilities for communication, and to all the circum.stanees of the case, be unjust or oppressive or too severe a punishment to return the fugitive either at all or until the expiration of a certain period, such court may discharge the fugitive, either absolutely or on bail, or order that lie shnli not l)e returnee dealt with according to law .as if lie iiad been there apprehended. Such order for retiu'n may be made by warrant mider the hand of the magistrate making it, and may be executed according to the tenor thereof. A magistrate .shall, so far as is requisite for the exercise of the powers of this section, have the same power, including the power to remand and admit to bail a prisoner, as he has in the case of a person apprehended under a warrant issued by him. 15. Where a person required to give evidence on behalf of the prosecutor or defendant on a charge for an offence punishable by law in a British possession of a group to which thi.s imrt of this Act applie,'^, is or is suspected of being in or on his way to any other British posses- sion of the same group, a judge, magistrate, or other officer who would Application of part of Act to Ki'oup of British pos- sessions. Jacking in one British possession of warrant issued in another of same group, Rfturn of prisoner apprehended under backed warrant. Backing in one British possession of summons, &c. of witness issued in » I ' !l -mmif»«»«<«»iis^ on service in that possession of the summons, so endorsed, and on nav' ment or tender of a reasonable amount for his expenses, shall obey the summons, and in default shall be liable to be tried and punished either in the possession in which he is served or in the pos.session in which tiie summons was issued, and shall be liable to the punishment imposed hy the law of the possession in which he is tried for the failure of a witiess to obey such a summons. The expression " summons " in this .section includes any subpoena or other process for requiring the attendance of a witness. 16. A magistrate in a British possession of a group to which this part of this Act applies, before the endorsement in pursuance of this part of this Act of a warrant for the apprehension of any person, may issue a provisional warrant for the apprehension of that person, on such infor- mation and under such circumstances as would in his opinion justify the issue of a warrant if the offence of which such person is acensoll were an offence punishable by the law of the said possession, and lunl been committed within his jurisdiction, and such warrant may lie backed and executed accordingly ; provided that a person arrested under such provisional warrant shall be discharged unless the original warrant is produced and endorsed within such reasonable time as may under the circumstances seem requisite. 17. If a prisoner in a British possession whose return is authorised in pursuance of this part of this Act is not conveyed out of that posses- sion within one month after the date of the warrant ordering his return, a magistrate or a superior court, upon iipplication by or on l)(dialf of the prisoner, and upon proof that reasonable notice of the intention to make such application has been given to the person holding the warrant and to the chief officer of the police of such possession or of the pi-ovince or town where the prisoner is in custody, may, unless sufficient cause is shown to the contrary, order such prisoner custody. Any ordei' or refusal to make an order of discharge by a luiigistrate under this section shall be subject to appeal to a superior court. to be discharged out of Sending back of prisoner not prosecuted or acquitted to British pos- session of same group. Refusal to return prisoner ■where offence too trivial. 18. Where a prisoner accused of an offence is returned in pursuance of this part of this Act to a British possession, and either is not prose- cuted for the said offence within six months after his arrival in that possession or is acquitted of the .said offence, the governor of that posses- .sion, if he thinks fit, may, on the requisition of such pcr.son, cause him to be sent back, free of cost, and with as little delay as i)ossible, to the British possession in or on his way to which he was apprehended. 19. Where the return of a prisoner is sought or ordered under this part of this Act, and it is made to appear to a magistrate or to a superior court that by reason of the trivial nature of the case, or by reason of ll\' application for the return of such prisoner not being made in good frith in the interests of justice or otherwise, it would, having regard to the distance, to the facilities of communication, and to all the circumstances of the case, be unjust or oppressive, or too severe a punishment, to return the prisoner either at all or until the expiration of a certain 1881] 44 A 45 VICT. c. 69.— ADJOINING POSSESSIONS. 831 ixriod, tlie court or magi.strate may discharge the prisoner either absoiiiti'iy or on hail, or order that he sliall not he returned until after tlie expiration of the period named in the order, or may make sucli other order in the premises as to the magistrate or court seems just. Any order or refusal to make an order of discharge by a magistrate under this section shall be subject to an appeal to a superior court. PAET III. Trial, Sfc. of Offences. 20. Where two British possessions adjoin, a person accused of an offence committed on or within the distance of five hundred j'ards from the common boundary of such possessions may be apprehended, tried, and punished in either of such possessions. 21. Where an offence is committed on any person or in respect of any property in or upon any carriage, cart, or vehicle whatsoever employed in a journey, or on board any vessel whatsoever employed in a navigable river, lake, canal, or inland navigation, the person accused of such offence may be tried in any British possession through a part of which such carriage, cart, vehicle, or vessel passed in the course of the journey or voyage during whicdi the offence was committed ; and where the side, bank, centre, or other part of the road, river, lake, canal, or inland navigation along which the carriage, cart, vehicle, or vessel passed in the course of such journey or voyage is the boundary of any British posses- sion, a person may be tried '" such offence in any British possession of which it is the boundary : Provided that nothing in this section shall authorise the trial for such offence of a person who is not a British subject, Avhere it is not shown that the offence was committed in a British possession. 22. A. person accused of the offence (under whatever name it is known) of swearing or making any false deposition, or of giving or faliriciitiug any false evidence, for the purposes of this Act, may be tried either in the part of Her Majesty's dominions in which such deposition or evidence is used, or in tiie part in which the same was sworn, made, given, or fabricated, as the justice of the case may require. 23. AVhere any part of this Act provides for the place of trial of a pei'son accused of an offence, that offence shall, for all purposes of and inci- dental to the apprehension, trial, and punishment of such person, and of and incidental to any proceedings and matters preliminary, incidental to, or consequential thereon, and of and incidental to tlic jurisdiction of any court, constable, or oflScer with reference to such offence, and to any per- «on accused of such offence, be deemed to have been committed in any place in which the person accused of the offence can be tried for it ; and sueli person may be punished in accordance with the Courts (Colonial) Jurisdiction Act, 1874. 24. Where a warrant for the apprehension of a person accused of an offence has been endorsed in pursuance of any part of this Act in any part of Her Majesty's dominions, or where any part or the Act provides for the place of trial of a person accused of an offence, e\ ery court and magistrate of the part in which the warrant is endorsed or the person nccused of the offence can be tried shall have the same power of issuing a warrant to search for any property alleged to be stolen or to be other- wise unlawfully taken or obtained by such person, or otherwise to lie the OfFonccs com- mitted on boundary of two adjoining Uritish pos- sessions. Olfeiioes eora- mittod on journey be- tween two British possessions. Trial of rffenco of falso swear- ing or plying falso evidence. Supplemental provision as to trial of person in any place. 37 & 38 Vict, c. 27. Issno of scarcli warrant. ,; il : t i I ii i Kcraoval of prisoner by sea from on» jilaco to another. Endorsement of warrant. Conveyance of fugitives and witnesses. 832 44 & 45 VICT. c. 69— SHIP AND PRISONER, [1881, ,snbject of such offence, ns that court or magistrate would have if the iiro. perty had been stolen or otherwise unlawfully Uiken or obtained, or tlie offence had been committed wholly within the jurisdiction of ,such coiut or magistrate. 25^ Where a person is in legal custody in a British possession cither in pursuance of this Act or otherwise, and such person is required to lie removed in custody to another place in or belonging to the sanK! British pos.session, such person, if removed by sea in a vessel belonging to Her Majesty or any of Her Majesty's subjects, shall be deemed to continue in legal custody until he reaches the place to which he is reiniired to he removed ; and the provisions of this Act with respect to the retakin" of a prisoner who has escaped, and with respect to the trial and j)niiishracnt of a person guilty of the offence of escaping or attempting to escape, or aiding or attempting to aid a prisoner to escape, shall apply to the case of a prisoner escaping while being lawfully removed as aforesaid, in like manner as if he were being removed in pursuance of a warrant (lulorseii in pursuance of this Act. PART IV. Supplemental. Warrants and Escape. 26. An endorsement of a warrant in pursuance of this Act shall ho signed by the authority endorsing the same, and shall authorize all or am of the persons named in the endorsement, and of the persons to wlioiii the warrant was originally directed, and also every constable, to execiiti! the warrant within the part of Her Majesty's dominions or place witliin which such endorsement is by this Act made a sufficient authoiitv, hv apprehending the person named in it, and bringing him before some magistrate in the .said part or place, whether the magistrate named in the endorsement or some other. For the purposes of this Act every warrant, summons, subpccna, ami process, and every endorsement made in pursuance of this Act thereon, .shall remain in force, notwithstanding that the person signing the war- rant or such endorsement dies or ceases to hold office, 27. Where a fugitive or prisoner is authorized to be returned to any part of Her Majesty's dominions in pursuance of Part One or Part Twn of this Act, such fugitive or prisoner may be sent thither in any siiip belonging to Her Majesty or to any of her subjects. For the purpose aforesaid, tiie authority signing the warrant for the return may order the master of any ship belonging to any subject of Hit Majesty bound to the said part of Her Majesty's dominions to receive and afford a passage and sid)sistence during the voyage to such fugitive or ])nsoner, and to the person having him in custody, and to the witnesses, so that such master be not required to receive more than one fugitive or prisoner for every hundred tons of his ship's registered ton- nage, or more than one witness for every fifty tons of such tonnage. The said authority shall endorse or cause to be endorsed upon the agreement of the ship such particulars with respect to any fugitive prisoner or witness sent in her as the Board of Trade from time to time require. Every such master shall, on his ship's arrival in the said part of Her Majesty's dominions, cause such fugitive or prisoner, if he is not in the custody of any person, to be given into the custody of .some constable, tiiere to be dealt with according to law. m ! EE, [1881, have if the pro- )l)tninc(l, or the n of such coni't ossessioii either required to l)c le same British longing to Her (1 to eontiiine in i re(iiiire(l to he lie retaiiing of a md jMinishment ng to escape, or )ply to the case ioresaid, in WVc I'iirrant eiidorseil this Act shall ho thorize all or any persons to wiioni ;tuble, to executd s or place within fnt authority, hy liin before some ate named in the Qs, subpoena, anil lis Act thereon, signing the war- returned to any 3nt' 01- Part Two ther in any ship IV ( s ■warrant for the subject of Hit inions to receivii to such fugitive 3(ly, and to the more than one registered ton- uch tonnage. dorsed ujjon the to any fugitive roui time to time said part of Her he is not in the some coustahle. ![ 1881] 44 & 45 VICT. c. 69.— FINE ON CAPTAIN. 833 17 & 18 Vict. c. 104. Every master who fails on payment or tender of a reasonable amount for expenses to comply with an order made in pursuance of this section, or to cause a fugitive or prisoner committed to his charge to be given into custody as required by this section, shall be liable on summary con- viction to a fine not exceeding fifty pounds, which may be recovered in anv part of Her Majesty's dominions in like manner as a penalty of the same amount under the Merchant Shipping Act, 1H54, and tlie Acts iiuit^iiling the .same. [See Act of \H9i, post.] 28. If fi prisoner e.scajjc, by lireach of prison or otherwise, out of the Escape of eustoily of a person acting under a warrant issued or endorsed in pursu- Flltoj^J '°^ an(!e of this Act, he may be retaken in the same manner as a person nci.'used of a crime against the law of that part of Her Majesty's dominions to which he escapes may be retaken upon an escape. A i)ersou guilty of the offence of escaping or of attempting to escape, or of aiding or attempting to aid a prisoner to escape, by breach of pri.son or otherwise, from custody under any warrant issued or endorsed in pur- suance of this Act, may be tried in any of the following jMtrts of Her Majesty's dominions, namely, the part to which and the part from which the prisoner is being removed, anil the part in which the prisoner escapes and the part in whi('h the ofTender is found. Evidence. 29. A magi.strate may take depositions for the purposes of this Act Depositions to in the absence of a person accused of an offence in like manner as he ^^^ fi"f^'-. might take the same if such person were present and accused of the g^tjo,, of (ifEenee before him. deposiiions and Depositions (whether taken in the absence of the fugitive or otherwise) warrants, and copies thereof, and otficial certificates of or judicial documents stating facts, may, if iluly authenticated, be received in eviilence in proceedings under tiiis Act. Provided that nothing in this Act shall authorize the reception of any such depositions, copies, certificates, or ('ocunients in evidence against a person upon his trial for an offence. Warrants and depositions, and coj)ies thereof, and othcial certificates of or judicial documents stating facts shall be deemed duly authenticated for the purposes of this Act if they are authenticated in manner provided tor the time being by law, or if they purport to be signed by or authenti- eated hy the signature of a judge, magistrate or officer of the part of Her Majesty's dominions in which the same are issued, taken, or made, and are authenticated either by the oath of some witness, or by being sealed with the oifieial seal of a Secretary of State, or with the public seal of a British possession, or with the official seal of a Governor of a Britisii possession, or of a Colonial Secretary, or of some secretary or minister administering a department of the Government of a British possession. Ami all courts and magistrates shall take judicial notice of every such seal as is in this section mentioned, and shall admit in evidence without further proof the documents authenticated by it. Miscellaneous. 30. The jurisdiction under Part One of this Act to hear a case and com- Provision as mit a fugitive to prison to await his return shall be exercised, — to «;xorcise of (1.) In England, by a chief magistrate of the metropolitan police ^^^''^'^trats ^^ courts or of one of the other magistrates of tlie metropolitan police ™"^'*' court at Bow Street ; and S 2340. . ■ 1 ! I MM' ill, ^■.^«v-..unu.L...K.L!i^ii»J.UiMLi 834 44 & 45 VICT. c. 69.— TRIAL ANYWHERE. [1881, (2.) In Scotland, by the sheriff or sheriff substitute of the county of Edinburgh ; and (3.) In Ireland, by one of the poli(.'e magistrates of the Dublin metro- politan police district ; and (4.) In a British possession, by any judge, justice of the piwe, or other officer having the like jurisdiction as one of the ina"i.stratpg of the metropolitan police court in Bow Street, or by such other court, judge, or magistrate as maybe from time to time provided by an Act or ordinance passed by the legislature of that possession. If a fugitive is apprehended and brought before a magistrate who has no power to exercise the jurisdiction under this Act in respect of that fugitive, that magistrate shall order the fugiti\e to be brought before some magistrate having that jurisdiction, and such order shall be obeyed. 31. It shall be lawful for Her Majesty in Council from time to time to make Orders for the purposes of this Act, and to revoke am! vary anv Order so raudo, and every Order so made .shall while it is in force Imvo the same ei?eet as if it were enacted in this Act. An Order in Council made for the purposes of this Act shall be l«i(! before Parliament as soon as may be after it is made if Parliaincnt is then in session, or if not, as soon as may lie after the commencement of the then next session of Parliament. 32. If the legislature of a British possession pass any Act or ordinance — (1.) For defining the offences committed in that possession to which this Act or any part thereof is to apply ; or (2.) For determining the court, judge, magistrate, officer, or person by whom and the manner in which any jurisdiction or power under this Act is to be exercised ; or (3.) For payment of the costs incurred in returning a fugitive or o prisoner, or in sending him back if not prosecuted or if acquitted, or otherwise in the execution of this Act ; or (4.) In any manner for the carrying of this Act or any part thereof into effect in that possession, it shall be lawful for Her Majesty by Order in Council to direct, if it seems to Her Majesty in Council necessary or proper for carrying into effect the objects of this Act, that such Act or ordinance, or any part thereof, shall, with or without modification or alteration, be recognised and given effect to throughout Her Majesty's dominions and on the higli seas as if it were part of this Act. Application of Act. Application of 33. Where a person accused of an offence can, by reason of the Act to offences nature of the offence, or of the place in which it was conunittcd, or at sea or otherwise, be, under this Act, or otherwise, tried for or in respect of the several imrts of offence in more than one part of Her Majesty's dominions, a warrant Her Majesty's f"i" tl^^ apprehension of such person may be issued in any part of Her dominions. Majesty's dominions in which he can, if he happens to be there, be tried; and each part of this Act shall apply as if the offence had been committed in the part of Her Majesty's dominions where such warrant is issued, and such person may be apprehended and returned in pursuance of tiiij Act, notwithstanding that in the place in which he is apprehended a court has jurisdiction to try him : Provided that if such person is apprehended in the United Kingdom ft Secretary of State, and if he is apprehended in a British possession, Power as to m.aking and revociition of Orders in Council. Power of legislature of British pos- session to pass laws for parrying into effect this Act. ERE, [1881. 1881.] 44 & 45 VICT. c. 69.— REMOVAL FOR TRIAL. 835 the Governor of siicli possession, may, if satisfied that, having regard to the place where the witnes.ses for the prosecution and for the defence are to he found, and to all the circunist^mcus of the case, it woidd he con- ducive to tlie interests of justice so to do, order such person to he tried ill the part of Her Majesty's dominions in which he is ai)prehended, and in such ciuse any warrant previously issued for liis return shall not bo executed. 34. Where a person convicted by a court in any part of Her Majesty's dominions of an offence committed either in Her Majesty's dominions or elsewhere, is unlawfully at large before the expiration of his sentence, wich part of this Act shall apply to such person, so far as is consistent with the tenor thereof, in like manner as it applies to a person accused of the like offence committed in the part of Her Majesty's dominions in which such person was convicted. 35. Where a person accused of an offence is in custody in some 'lart of Her Majesty's dominions, and the offence is one for or in respect of which, by reason of the nature thereof or of the place in which it was eouunitted or otherwise, a person may iinder this Act or otherwise be tried in some other part of Her Majesty's dominions, in such case a sui«rior court, and also if such person is in the United Kingdom a Secretary of State, and if he is in a British possession the Governor of that possession, if satisfied that, having regard to the place where the witnesses for the prosecution and for the defence are (o be found, and to all the circumstances of the case, it would be cond .icive to the interests of justice so to do, may by warrant direct the removal of sucii offender to some other part of Her Majesty's dominions in which he can be tried, and the offender may he returned, and, if not prosecuted or accpiitted, .*nt back free of cost in like manner as if he were a fugitive returned in pursuance of Part One of this Act, and the warrant were a warrant for the return of such fugitive, and the provisions of this Act shall apply accordingly. 36. It shall be lawful for Her Majesty from time to time by Order in Council to direct that this Act shall apply as if, subject to the con- ditions, exceptions, and qualifications (if any) contained in the Order, any place out of Her Majesty's dominions in which Her Majesty has jurisdiction, and which is named in the Order, were a British possession, and to provide for carrying into effect such application. 37. This Act shall extend to the Channel Islands and Isle of Man as if they were part of England and of the United Kingdom, and the United Kingdom and those islands shall be deemed for the purpose of thi.s Act to be one part of Her Majesty's dominions ; and a warrant endorsed in pursuance of Part One of this Act may be executed in every place in the United Kingdom and the said islands accordingly. 38. This Act shall apply where an offence is committed before the commencement of this Act, or, in the case of Part Two of this Act, before the application of that part to a British possession or to the offence, in like manner as if such offence had been committed after such commencement or application. Application of Act to con- victs. Application of Act to removal of person triable in more than ont part of Iler Majesty's dominions. Application of Act to foreign jurisdiction. Application of Act to, and execution of warrant in United King- dom, Channel Isliiiiils, and Isle of Man. Application of Act to past offences. Definitions and Repeal. In this Act, nnless the context otherwise requires,— ^rms'*'°" °^ The expression " Secretary of State " means one of Her Majesty's « g *„ c 39 Principal Secretaries of State : 3g 2 state: P ; : i ! ■n . li ! ! flB»«WwMWi«»o!m«*W»W«»«»a«'*««»W"Wfi^^ 836 44 & 45 VICT. c. 60— TERMS USED. [18R1. " Uritish pos- Hcssion : " '' Lcgislnturii : " " Governor : " " Constable : " " Magistrate : " " Offence punishable on indictment : "' " Oath ; " " Deposition : " " Superior court." Commence- ment of Act. Bepeal of Act in Schedule. I Tho pxprpssion " British possession " means nny part of Hop Ma. jesty's dominions, cxcliisivo of the United Kinjjdoni, tiie Channel Islands, niid Tsle of Afan ; nil territories iiiid pluccs within Her Majesty's dominions whieli lire ni\(ler one le<^islatin-(> slmjl l)o deemed to he one Uritish j)ossession and onc^ part oi' Her Majostv's dominions : Tho expression "legislatnre," where there are local legislatures as well as n central leofislatnre, means the central le^jislature onlv : The expression " Governor " means any person or persons ndniinistor- inji; the government of a British pos.session, and iiicliuics Hn. Governor and Lientenant-Cxovcrnor of any part of fiidia : 'I'lie expression " constable " means, 'int of fuif/l(ind, any |ioliivnmii or ollicer having th«' lik(! powt.J and duties as a eonstjible in £ii(/l(iiid : The expression " magistrate " means, except in Scollaivl, any jiistiiv of the peace, and in Scntlntul means a sheriff or sheriff siihstitiiic and in the Cliannvl Inlands, hie of Man, and a JJritisli possession means any jx-rson having aiithoritv to issue a warrant for the a|)|)iv- hension of persons accused of offences and to commit siiih persdiis for trial : The expression " offence jninishahle on indictment " means, as rogHrds India, an otfence punishable on a charge or otherwise : The expression " oath " includes affirmation or declaration in tiic chsc of persons allowed by law to atiirm or declare instead of sweiuini;, ant('rs of member.s resident in such colony. (2.) The company .shall give to the registrar of joint stock couiimiiiis notice of the situation of the otfice where any such branch registir (in this Act called a colonial registt^r) is kci)t, and of any change tlicivin and of the discontinuance of any .nich otfice in the event of the same being discontinued. (3.) A colonial register shall, us regards the particulars entered tiuTtin be deemed to be a part of the company's register of members, and slmll be primft facie evidence of all particulars entered thertMii. Any suili register shall be kept in the manner provided by the Companies Acts 1802 to 1880, with this qualification, that the advertisement ineiitioncii in section thirty-three of the Companies Act, 1862, shall be inserted in some newspaper circulating .u the district wherein the register to k' clo.sed is kept, and that any competent court in the colony wlieru such register is kept .shall be entitled to exercise the wime jurisdiction of rectifying the .same a.s is by section thirty-live of the Companies Act, 18(32, vested, as respects a register, in Euflland and Ireland iu Her Majesty's superior coin-ts of law or e(piity, and that all offences under .section thirty-two of the Companies Act, 18()2, may, as regards a colonial re;;istcr, be prosecuted Bummarily before any tribunal in the colony where such register is kept having summary criminal jurisdiction. (4.) The company shall transmit to its registered office a copv nf every entry in its colonial register or registers as soon as may lie lil'iit such entry is made, and the company shall cause to be kept at its rcjjis- tercd ollice, duly entered up from time to time, a duplicate or (hi|ilic!il(s of its colonial register or registers. The provisions of section thirty- two of the Companies Act, 1862, shall apply to every such duplicalc, and every such (luplicate shall, for all the purposes of the Coniiiaiiic- Acts, 1802 to 1880, be deemed to be part of the register of members of the company. (5.) Subject to the provisions of this Act with respect to the (lupli- cate register, the shares regist(Ted in a colonial regL'tcr shall be dis- tinguished from the shares registered in the principal register, and no transaction with respect to any shares registered in a colonial register shall, during the continuance of the registration of such shares in such colonial register, be registered in any other register. (6.) The company may discontinue to keep any colonial register, and thereupon all entries in that register shall be transferred to some otlier colonial register kept by the company in the .same colony, or to the register of members kept at the registered office of the company. (7.) In relation to stamp duties the following provisions shall have effect : — (a.) An instrument of transfer of a share registered in a colonial register under this Act shall be deemed to be a transfer of property situated out of the United Kingdom, anil unless executed in any part of the United Kingdom shall be exempt from British stamp duty. (6.) Upon the death of a member registered in a colonial register under this Act, the share or other interest of the dece&'cd member shall for the purposes of this Act so far as relates to DENCE. [188;{. 188,1] 46 A 47 VICT. c. 30.— COL. CONFERENCE. 839 hritish (lut.ios Iw (iTOUietl to be part of hiw cMtufu nml t'tYcils situuted iu the United Kinj^doin, lor or in rcspt'ct ol" wliich proliiito or letters of udiiiiiiiHtriition is or are to lie limited, or whereof an inventory is to be exhibited and recorded in like manner as if ho were rej^istered in the register ol uienibers kept ut the regi.stered olHee of the company. (H.) Subject to the provisions of this Act, any eompiiny may, by its icfjuifttions as originally framed, or as altered by special resolution, miike such provisions as it may ihink lit respecting tiie keeping ol' colonial rt'gist«'rs. See letter of Lord Knutsford, 13th Sept. 1889, as follows: — " I liuve the honour to transmit to yoii a eopv of the Imperial Act 4 im\ (52 & 53 Vict. c. 42.), and lorwiue.st that you will cause sees. 18 and 1'^ to be published for in- foruiution in your colony under your Government. During the sit tiiij,' of the Colonial Conference iu 1887, tlie attention of H.M.'s gov- ernmeut was called to the Companies ((blouiul llegisters) Act, 1883 (40 Si 17 Vict. 0. 30.), which had the effect of requiring probate or letters of administration to be t»iken out bothin thecolony and inthiscountry in respect of the willo or estates of colonial shareholders holding shares on the colonial registers of banks and other companies. The proceed- ings ou the subject at pp. 76-107 of Par. Paper C. 5091, vol. l,and the \M\ieTs then laid before the confer- ence, are printed on pp. 47, 48, 49 of the Par. Paper C. 5091, vol. 2. The promise given in the former that this grievance should be reme- died has now been redeemed by the pa.x.singof sec. 18 (of 52 & 53 Vict, c. 42) for the purpose. A somewhat similar complaint was brought to the notiet* of Her Majesty's Government in connec- tion with policies of life insurance issued in the colonies by insurance companies carrying on business in the colonies, but having their head olHce iu the United Kingdom. Tho sums recovered under such policies were held to be assets situated in the United Kingdom, and under sec. 11 of the Imi)erial llevcnue Act, 1884(47 &48 Vict. c. 02, scehelow) the production of u grant of repre- sentation from thecourt in theUnited Kingdom, by probate, or letters of administration, or confirmation, was ne(!essary to establish the right to recover or receive these amounts. The hardship of this provision upon persons who had do real con- nection with the United Kingiloin has been recognised, and sec. 19 has beeu passed to reniovti it. See therefore Ileveuue Act, 1889, 52 & 63 Vict. c. 42. ; sees. 18, 19. Sees. 18 and 19 of 62 & 63 Vict. (1889) c. 42. were as follows : — 18. Notwithstanding provision (b) in section seven of the Companies Amendment of (Colonial Registers) Act, 1883, the share or other interest of a deceased -46 & 47 Vict. member.registeredinacolonialregisterunderthat Act, who shall have died "• ^'^- ^' "^f domiciled elsewhere than in the United Kingdom, shall, so far as relates ?^ 2010^11^ to British duties, not be deemed to be part of his estate and effects registers, situated in the United Kingdom, for or in respect of which probate or letters of administration is d NDITI0NS. 843 concurrence of or requisition by the Government of the British posses- sion has been duly given or made according to law ; and any writing puriiorting to be under the hand of a Secretary oi' State, and to order the reuio\al of a prisoner from a British possession, shall be conclusive evidence that such order has been duly given by the Secretary of State, and every such writing as above in this section mentioned shall be admissible in evidence in any court in Her Majesty's dominions without further proof. 7. — (1.) Where the removal of a prisoner from a British possession Warrant for is ordered in pursuance of this Act, a Secretary of State or the Governor removal of of the British possession may by warrant under his hand direct the pnsoner. prisoner to be removed to the part of Her Majesty's dominions men- tioned in the said order, and for that purpose to be delivered into the custody of the persons named or described in the warrant or some one or more of them, and to be held in custody and conveyed by sea or otherwise to the said part of Her Majesty's dominions, there to undergo his sentence, or the residue thensof, until returned in pursuance of this Act or discharged, and such warrant shall be forthwith executed accord- ing to the tenor thereof. (2.) Where a prisoner is to be returned to a British possession, a Secretary of State, or the Governor of the possession in which he has been undergoing his sentence, shall issue a like warrant, which shall be duly executed according to the tenor thereof. (3.) Every warrant purporting to be issued in pursuance of this Avt, and to Ik under the hanil of a Secretary of State or Governor ol' a British possession, shall be received in evidence in every court of justice iu Her Majesty's dominions without further proof, and shall be evidence of the facts therein stated, and all acts done in pursuance of such warrant shall be deemed to have been authorized by law. 8. — (1.) Every pri.soner removed in pursuance of this Act shall, until Dealing with he is returned in pursuance of this Act, be dealt with in the part of Her removed Majesty's dominions to which he is removed, in like manner as if his P'^"*°°*''- sentence (with such variation, if any, of the conditions thereof as may have been duly made in pursuance of regulations under this Act) had been (lidy awarded in that part, and shall be subject accordingly to all laws and regulations in force in that part, with the folic ing qualifica- tions, that his conviction, judgment, and sentence may be questioned in the part of Her Majesty's dominions from which he has been removed in the siime manner as if he had not been removed, and that his sentence may be remitted and his discharge ordered in the same manner and by the same authority as if he had not been removed. (2.) The officer in charge of any prison, on request by any person having the custody of a prisoner under a warrant issued in pursuance of this Act, and on payment or tender of a reasonable amount lor expenses, shall receive such prisoner and detain him for such reasonable time as may be requested by the said person for the purpose of the proper execution of the warrant. 9. — (1.) If a prisoner while in custody in pursuance o^ this Act, or Escape of under a warrant i.ssued in pursuance of this Act, escapes, by breach of prisoner from prison or otherwi.se, out of custody, he may be retaken in the same manner as a person convicted of a crime against the law of the place to which he escapes may be retaken upon an escape. (2.) A person guilty of the offence of so escaping or of attempting so to escape, or of aiding or attempting to aid any such prisoner so to escape, may be tried in any of the following parts of Iler Majesty's > i i! f i I custody. \\':l 'KHMMfiMWfttiii.tml I ; I i 1 ri :: 1 : I i ^ 1 t ' f 1 •.tviuanmf-mtvm.- 37 & 38 Vict. C.27. Application of Act to re- moval of criminal luna- tics. Cost of 1 moval. 844 47 & 48 VICT. c. 31.— CRIM. LUNATICS. [1884. Power of legis- lature of British pos- session to pass laws for carrying Act into effect. dominions, namely, the part to which and the part from whicli the prisoner is being removed or returned, and tlie part in which the prisonpr escapes, and the part in which the offender is found, and sueli ofFciiei' shall be deemed to be an offence against the law of the part of Her ilajesty's dominions in which he may be so tried, and for all ])urposes of and incidental to the apprehension, trial, and punishment of the person accused of such offence, and of and incidental to any procppdin<'s and matters preliminary, incidental to, or consequential thereon, and of and incidental to the jurisdiction of any court, constable, or officer with reference to siich offence, and to the person accused thereof, such offeiuc shall be deemed to have been committed in the said part, and suoh person may be punished In accordance with the Courts (Colonial) Juris- diction Act, 1874. Criminal Lunatics, 10. — (!■) The pro\ isions of this Act shall apply to a person in custody as a criminal lunatic m like manner, so far as consistent with tlir tenor thereof, as they apply to a prisoner undergoing sentence of imprison- ment ; and separate regulations may be made by Her Majesty in Council under this Act in relation to criminal lunatics, and (subject to tliose regulations) all laws and regulations in force in the part of Iler Majesty's dominions in which a criminal lunatic removed or returned is for the time being in custody under a warrant issued in pursuance of this Act shall apply to such criminal lunatic as if he had become a criminal lunatic in that part. (2.) Where a person who is a criminal lunatic by reason of heinir unfit to be tried for an offence is removed in pursuance of this Act, ami a Secretary of State or the Government of the British possession to or from which such person was removed considers that such peison has become sufficiently sane to be tried for the said offence, and requires him to be returned for trial to the British possession from which he was removed, he shall, in accordance with the regulations under this Act, \k returned as a prisoner to the said British po.ssession for the pinjose of being there tried for the said offence, and shall be removed thither in custody in like manner as if he had been arrested under a warrant on a charge for the said offence. Miscellaneous. 11. — (1.) Tlie cost of the removal of any prisoner or criminal lunatic under this Act and of his maintenance while in confinement, and of his return, and of his being sent after discharge to any place, sliall lie puiil in such manner as may be arranged between the Governments of the British [jos.sessions concerned and the Secretary of State, subject, as regards any cost to be paid out of moneys provided by Parliament, to the consent of the Commissioners of Her Majesty's Treasurv. (2.) Nothing in this Act shall affect any power to recover the ex])enses of removing or returning any prisoner or criminal limatic from the pro- perty of such prisoner or criminal lunatic or otherwise. 12. If the legislature of a British possession pass any law — (a) for determining the authority by whom and the manner in which any jurisdiction, power, or concurrence under this Act is to be exercised or given ; or (b) for pa\ment of the costs incurred in the removal, maintemuur, return, or sending back after discharge of a piisouer or crimintU lunatic ; or 1884.] 47 & 48 VICT. c. 31.— TERMS USED. 845 (c) for dealing in such possession with prisoiiors or criniiniil luna- tics removed thereto in pursuance of this Act ; or (f/) for making any class of prisoners subject to removal under this Act ; or (e) otherwise in any manner for the carrying of this Act or any part thereof into effect as regards tlie said possession, it shall be lawful for Her Majesty in Council to direct that such law or any part thereof shall with or without modification or alteration be recoguised and given effect to throughout Her Majesty's dominions and on tlie liigh seas as if it were part of this Act. 13, — (1-) It shall be lawful for Her Majesty in Council from time Power us to to time to make Orders for the purposes of this Act, and to revoke and makitif; and vary any Order so made, and every Order so made sliall while it is in J'^'vociitioii of force have the same effect as if it were enacted in this Act. Coun ■ll ' (2.) An Order in Council made for the purposes of this Act shall be kill before Parliament as soon as may be after it is made if Parliament is then in session, or, if not, as .soon as may be after the commencement of the then next session of Parliament. Application of Act to Channel Islands and Isle of Man. Application of Act to place under foreign jurisdiction Acts. See 41 &42 Vict. c. 67. 14. This Act shall extend to the Channel Islands and Isle of Man as if they were part of England and the United Kingdom. 15. It shall be lawful for Her Majesty in Council from time to time to direct that this Act shall api)ly as if, subject to the conditions, excep- tions, and qualifications (if any) contained in the Order, any place out of Her Majesty's dominions in which Her Majesty has jurisdiction, and which is named in the Order, were a British possession and part of Her Majesty's dominions, and to provide for carrying into effect such uppliciition. 16. — ( 1 .) Nothing in this Act shall affect the provisions of the Army Savings. Act, 18H1. 44 & 45 Vict. (2.) Tliis Act shall not affect any agreement made either before or "• ^^• after the passing of this Act under the Colonial Prisoners Removal Act, 32 & 33 Vict. 18G9, nor any provisions contained in the Act of the session of tlie c. 10. fourteenth and fifteenth years of the reign of Her present Majesty, chapter eighty-one, intituled " An Act to authorize the Removal from India of Insane Persons charged with Offences, and to give better effect to inquisitions of lunacy taken in India." 17. This Act shall apply to a prisoner who has been convicted, and to Application of a criminal lunatic who has become a criminal lunatic before the passing Act to existing of this Act, in like manner as if he had been convicted and become a prisoners and <..• rti ni»» rtWi»v\iTinl lima crimmal lunatic after the commencement or this Act. criminal luna- tics. 18. In this Act, unless the context otherwise requires, the following Definitions, expressions have the following meanings ; that is to .say, The expression "British possession" does not include any place within the United Kingdom, the Isle of Man, or the Channel Islands, but includes all other territories anil places being part of Her Majesty's dominions, and idl territories and places within Her Majesty's dominions which are not part of India and are under one legislature shall be deemed to he one British possession, and any part of India under a Governor or Lieutenant-Governor shall be deemed to be one British possession. Tlie expression " India " means all territories and places within Her Majesty's dominions which are subject to the Governor-General of India in Council. i! , I ^M wmt nmnf^ WairffMW-WWW*CTtnMm\».i4',JJ^»tB»WrtW*..»tM' iil f , ( ; 846 1 & 2 VICT. c. 59.— COPYRIGHT ACTS. [1834. The expression " legislature," where there are local legislatures as well as a central legislature, means the central legislature only, and in eviry part of India means the Governor-General in Council. The expression "Secretary of State' means one of Her Majesty's Principal Secretaries of State. The expression "Governor" means any person or i)ersons ndminis- tering the government of a British possession, and includes the Governor- General of India and also the Governor and Lieutenant-Governor of any part of India. The expression "Colonial Secretary" includes a person pprformin" the like duties as a Colonial Secretary, whether known as GoviTiiment Secretary, Chief Secretary tc the Government, or by any other title. The expression " prison " includes any place for the confinement or detention of prisoners whether convicted or unconvicted. The expression " sentence of imprisonment " means any sentence involving confinement in a prison, whether combined or not witii labour and whether known as penal servitude, imprisonment with hard labour rigorous imprisonment, imprisonment, or otherwise, and includes a sen- tence awarded by way of commutation as well as an original sentence passed by the court. The expression "criminal lunatic" means a person detained in custody by reason of his having been charged with an offence, and either found 10 have been insane at the time of such offence, or found or certified or otherwise lawfully proved to be unfit on the ground of his insanity to l)e tried for the same, and includes a person convicted of an offence and afi«i""irds certified or otherwise lawfully proved to be insane. ["l^c- 43 and 49 Vict. (1885) c. 49., Protection of Submarine Telegraph, and 50 & 51 Vict. c. 3., see Dom. Acts 48 & 50 Vict, respectively.] THE COPYRIGHT ACTS. 1 & 2 VICT. (1834) c. 59. Repealed by 7 & 8 Vict. c. 12. [which see]. This Act was intituled "An Act for Securing to Authors in certain cases the Benefit of International Copyright," 5 & 6 VICT. (1842) c. 45. Sees. I and 30 repealed by S. L. R. Act, 1874 (No. 2), 37 A 38 Vict. c. 96. ; and S. L. 11. 1888 (No. 2), 51 & 62 Vict. c. 57., repealed the following parts, namely, the words " And be it enacted that " wliereyer they occur (except in sees. 9, 27, and 28), and the word " that," wherever it occurs with reference to the introductory words so repealed. The words " And be it enacted," in sees. 9, 27, and 28 ; sec. 13 to " pas-^ing of this Act " ; Sec. 16 to " this Act" ; Sec. 17 to " passing of tliis Act." Preamble ; Sec. 1 to " enact that " ; Sec. 5 to " enact that," and the ^m 1842] 5 & 6 VICT. c. 45.— COPYRIGHT IN THE COLS. 847 word " tUnt " before " it sliall " ; Sec. 20 to " enact that " and the word "that" before "the .sole," repealed by S. L. R. (No. 2) 1890, 53 & 51 Vict. c. 51. Sec. 14 from " Court of Common " to " vacation," from "by a motion" to "as aforesaid," and the words "or judge," oct'urrin" twice; Sec. 15, the words "after the passing of this Act" repealed1)y S. L. R. Act, 1893, 56 Vict. c. 14. This was an Act to amend the law of copyright. The preamble repealed 8 Anne, c. 19. ; 41 Geo. 3. c. 107. and 54 Geo. 3. c. 156. By sec. 2 it was enacted that in the construction of the Act the word " book " should include every volume, part or division of a volume, pamplilet, sheet of letter-press, sheet of music, map, chart, or plan separately published : That the words " dramatic piece " should include every tragedy, comedy, play, opera, farce, or other scenic, musical, or dramatic entertainment ; that the word " copyright " should mean " the sole and exclusive liberty of printing or otherwise multiplying copies of any subject to which the said word is herein applied." That " personal representative " should mean and include every executor, administrator, and next-of- kin entitled to administration. That " assigns " should mean every person in whom the interest of an author in copyright shall be vested, whether derived from such autiior before or after the publication of any book, and whether acquired by sale, gift, bequest, or by operation of law or otherwise. That the words " British domi- nions " should be construed to mean and include all parts of the United Kingdom of Great Britain and Ire- land, the islands of Jersey and Guernsey, all parts of the East and West Indies, and all the colonies, settle- ments, and possessions of the Crown which now are, or hereafter may be, acquired. Sees. 3 and 4 provided for the endurance of the copyright. Sec. 6, that the Privy Council might license the re-publication of books which the proprietor of the copyright refused to re-publish or to allow the re-publication of after the death of the author. Sees. 6, 7, 8, 9, 10, 11, 12, 13, 14, referred to delivery of copies to the libraries entitled to them, and for registration of copyright, and sees. 15 and 16 for remedy for piracy. i^ ' \ . i 'i? I 1 ;< hi t:r*-(-My.*ii.«uJrci 848 & 6 VICT. c. 45— IMPORTED BOOKS. [1842. t ■ No person') except the pro- prietor, &c. shall import in- to the IJritiah Dominions, for sale or hire, any book first composed, &c., within the United King- dom and ro- printod elso- whoro, under penalty of forfeiture and also £10 and double the value ; and books may bo seized by officers of cus- toms or excise. Sec. 17 was as follows : " And he it enacted, that aftor the passing of this Act it shall not he lawful for any person not heinj^ the proprietor of tlie copyright, or sonic person authorised hy him, to import into any part of the United Kingdom, or into any other part of the liritish do- minions, for sale or hire, any printed hook first composed or written or printed and published in any part of the said United Kingdom, wherein there shall he copyrio-lit and re-printed in any country or place whatsoever out of the British dominions, or if any person, not heing sucli proprietor or person authorized as aforesaid, shall import or hring, or cause to he imported or brought for sale or hire, any such printed hook into any part of the British dominions conti*ary to the true intent and meaning of this Act, or shall knowingly sell, publish, or expose to sale, or let to hire, or have in his possession for sale or hire any such book, then every such book shall he for- feited, and shall be seized by any officer of customs or excise, and the same shall be destroyed by such officer ; and every person so offending, being duly convicted thereof before two justices of the peace for the county or place in which such book shall be found, shall also for every such offence forfeit the sum of £10, and double the value of every copy of such book which he shall so import or cause to be imported into any part of the British dominions ; or shall knowingly sell, publish, or expose to sale or let to hire, or shall cause to he sold, published, or expensed to sale or let to hire, or shall have in his possession for sale or biro contrary to the true intent and meaning of this Act £5 to the use of such ofiScer of customs or excise, and the remainder of the penalty to the use of the proprietor of the copyright in such book." Sees. 18, 19, 20, 21, 22 dealt with the right of copy, right in encyclopaedias, periodicals, reviews or magazines, special arrangements between publisher of articles and writer; and with music compositioDS and dramatic pieces and assignment thereof. wSi 1844] 7&H VICT. c. 12.— INTERNATIONAL COPYRIGHT. 849 Sees. 23 and 21 dealt with the property in pirated copies and condition precedent to suing, namely, registration of copyright. Sec. 25, " And be it enacted that all copyright shall be copyright deemed personal property, and shall be transmissible by ai'prop^crty.'°"' l)equest, or in case of intestacy shall be subject to the same law of distribution as other personal property, and in Scotland shall be deemed to be personal and moveable estate." Sees. 26, 27, and 28 dealt with the general issue and limitation of actions saving the rights of the British Museum and the other libraries entitled to copies. Sec. 29, " And be it enacted that this Act shall extend t:*'^"* of ^ci. to the United Kingdom of Great Britain and Ireland, and to every part of the British dominions." ^ By sec. 30 the Act might be amended in that session. [See ante, p. 91.] 1 See the Canadian Acts with reference to copyright, 4 & .'S Vict. (1841) c. 61; 10 & 11 Vict. (1847) 0.28; C. S. C. (1859) c. 81; the Copyright Act, 31 Vict. (1868) c. 54 [this Act was reserved for and obtained the assent of Her Majesty in Council before it be- came law] ; the Copyright Act, 38 Vict (1875) c. 88 [the ori- ginal Act is c. 88 of the Canadian Statutes of 1875, although there is another Act passed in the same year also called c. 88]. See this Act in R. S. C. c. 62, vol. i., p. 925, and given as a note to 38 & 39 Vict. c. 53, which Imperial Act gave effect to the 38 Vict. (1875) c. 88. 7 & 8 VICT. (1844) c. 12. Sections 1 and 21 repealed by S. L. R. Act, 1874 (No. 2), 37 & 38 Vict.c. 96; sections 14, 17, and 18 repealed by 49 & 50 Vict. (1886) c. 33. s. 12, tohich see. Preamble, the words " And be it enacted that" wherever they occur, except in sees. 6, 7, and 12. The words " And be it enacted," in sees. 6, 7, and 12 ; sec. 13 the word " that " before " the times " ; sec. 20 from " and the expression Her Majesty " to " Majesty," where it next occurs, repealed by S. L. R. Act, 1891, 54 & 55 Vict. c. 57. This was an Act relating to International Copyright. The preamble and first section after citing the Acts 1 & 2 Vict, c. 59. ; 5 & 6 Vict. c. 45. ; 4 Will. 4. c. 15. ; 8 Geo. 2. c. 13. ; 7 Geo. 3. e. 38. ; 17 Geo. 3. c. 57. ; 6 & 7 Will. 4. c 59. ; 38 Geo. 3. c. 71. ; and 54 Geo. 3. c. 56. continued " And whereas the powers vested in Her Majesty by the said International Copyright Act [1 & 2 Vict. c. 69 ] are insufficient to enable Her Majesty to confer upon authors of books S 2340. 3 H 1 ' ! ii !] ^ii : , 11 ;! jj|jll j; ^9 i HI ^\ KB Hi ,«WH(Bg(!aw»et»«w««!«*wB»!a*^ 850 7 & H VICT, c 12— FOREIGN COPYRIGHTS. [IS44 first published in foreign countries copyright of like duration, imd ^yio, the like remedies for tlie infringement thereof, whieli arc conlcircd ami piovid(Hl by tlie saiil Copyright Amendment Act witii re.Kpcut f5.— COLONIAL PKOTKCTIOX 853 All Act to amend the Law relating to the Pro- tection in the Colonies of Works entitled to Copyright in the United Kingdom. WHEREAS l)y an Act passed in the session of Par- liament holdcn in the fifth and sixth years of Her Majesty, intituled " An Aot to amend the Law of Copy- right," it is amongst other things enacted that it shall not 1)0 lawful for any person not heing the proprietor of the copyright, or some person authorized hy him, to im- port into any part of the Unitefl Kingdom, or into any other part of the British dominioiis, fcr sale or hire, any printed book first composed or writun or printed or pub- lishtnl in any part of the United Kingdom wherein there shall bo copyright, and reprinting in any country or place whatsoever out of the British dominions : And whereas by an Act passed in the session of Parliament holden in the eighth and ninth years of the reign of Her present Majesty, intituled " An Act to liegulate the Trade of the British Possessions abroad," books wherein the copyright is subsisting, first composed, or written or printed in the United Kingdom, and printed or re- printed in any other country, are a])solutely prohibited to he imported into the British possessions abroad : And whereas l)y the said last recited Act it is enacted [see sec. 63], that "all laws, bye-laws, usages or customs [at this time or which hereafter shall be] in practice, or endeavoured or pretended to be in force or practice in any of the British possessions in America, which are in any wise repugnant to the said Act [8 & 9 Vict. c. 93.], or to any Act of Parliament made or [hereafter] to he made in the Unit(!d Kingdom, so far as such Act shall relate to and mentioE the said possessions, are and shall be null and void to all intents and purposes what- soever." Now be it enacted by the Queen's most Excel- lent Majesty, by and with the advice of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same 5 & 6 Vict, c. 45. 8 & 9 Vict, c. 93. Her Majesty may suspend in certain cases the prohibition against the ad- mission of books into the colonics. !i iii iittiiiiiiiiiililiii^ lii :J J : M- M Orders in Council to lie publisheil in the Gazette and to be laid before Par- liament. 85i 10 & 1 1 VICT. c. 95.— PI?OHIBlTIONS SUSPENDED. [1S17 that in case the legislature or proper legislative autlio- rity in any British possession shall he disposed to make due provision for securing or protecting the Rights of British authors in such possession, and shall pass an Act or make an ordinance for that purpose, and shall trans- mit the same in the proper manner to the Secretary of State, in oi'der that it may he submitted to Her ^ilajesty, and in case Her Majesty shall be of opinion tliat such Act or ordinance is sufl&cient for the purpose of securing to British authors reasonable protection v.ithin such possession, it shall be lawful for Her Majesty, if she think fit so to do, to express her royal approval of such Act or ordinance, and thereupon to issue an Order in Council declaring that so long as the provisions of such Act or ordinance continue in force within such colony the prohibitions contained in the aforesaid Acts and herein-bef ore recited, and any prohibitions contained in the said Acts or in any other Acts, against the importing, selling, letting out to hire, exposing for sale or hire, or possessing foreign reprints of books first composed, written, printed, or published in the United Kingdom, and entitled to copyright therein, shall be suspended so far as regards such colony, and thereupon such Act or ordinance shall come into operation, except so far as may be otherwise provided therein, or as may bo other- wise directed by such Order in Council, anything in tlio said last recited Act or in any other Act to the contrary notwithstanding. 2, And be it enacted. That every such Order inCoim- cil shall within one week after the issuing thereof he published in the London Gazette, and that a copy thereof and of every such Colonial Act or ordinance so approyed as aforesaid by Her Majesty shall be laid before both Houses of Parliament within six weeks after the issuing of such order, if Parliament be then sitting, or if Par- liament be not then sitting, then within six weeks after the opening of the next session of Parliament. SPENDEl). [1M7 1S75 j .{H & -.id VICT. c. 53.— COPYRIftHT AND CAN. LEO. 855 3. And be it enacted, That this Act may be amended ^^,^^^7 '^ "" or repealed by any Act to be passed in the present session of Parliament. ^See the next Act and 19 & 50 Vict, c. 33.] 38 & 39 VICT. (1875) c. 53. Preamble, and to " same as follows " repealed by S. L. 11. Act 1893 (No. 2) e. 54. An Act to give effect to an Act of Parliament of the Dominion of Canada respecting Copyright. [2nd Aug. 1875.] WHEREAS by an Order of Her Majesty in Council, dated the 7th day of July 1868, it was ordered that all prohibitions contained in Acts of the Imperial Parliament against the importing into the Province of Canada, or against the selling, letting out to hire, ex- posing for sale or hire, or possessing therein foreign reprints of books first composed, written, printed, or published in the United Kingdom, and entitled to copy- right therein, should be suspended so far as regarded Canada : And whereas the Senate and House of Commons of Canada did, in the second session of the third Parliament of the Dominion of Canada, held in the thirty-eighth year of Her Majesty's reign, pass a Hill intituled " An Act respecting Copyrights," which Bill has been re- served by the Governor-General for the signification of Her Majesty's pleasure thereon : And whereas by the said reserved Bill provision is made, subject to such conditions as in the said Bill are mentioned, for securing in Canada the rimhts of authors in respect of matters of copyright, and for prohibiting the importation into Canada of any work for which copyright under the said reserved Bill has been secured ; and whereas doubts have arisen whether the said re- served Bill may not be repugnant to the said Order in 1 1 Short title of Act. Definition of terms. Her Majesty may assent to the Bill in schedule. Colonial re- prints not to be imported into United Kingdom. 856 38 & 39 VICT. c. 53.— AUTHORIZED CAN. ACT. [1875. Council, and it is expedient to remove such doubts and to confirm the said Bill : Be it enacted hy the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited for ali purposes as " The Canada Copyright Act, 1875." 2. In the construction of this Act the words " l)ook " and *• copyright " shall have respectively the same mean- ing as in the Act of the fifth and sixth years of Her Majesty's reign, chapter forty-five, intituled " An Act to amend the Law of Cr'uy right." 3. It shall be lawful for Her Majesty in Council to assent to the said reserved Bill, as contained in the schedule to this Act annexed, and if Her Majesty shall be pleased to signify her assent thereto, the said Bill shall come into operation at such time and in such manner as Her Majesty may by Order in Council direct ; anything in the Act of the twenty-eighth and twenty- ninth years of the reign of Her Majesty, chapter ninety-three, or in any other Act to the contrary not- mthstanding. 4. Where any book in which, at the time when the said reserved Bill comes into operation, there is copy- right in the United Kingdom, or any book in which thereafter there shall be such copyright, becomes en- titled to copyright in Canada in pursuance of the pro- visions of the said reserved Bill, it shall be unlawful for any person, not being the owner, in the United Kingdom, of the copyright in such book, or some person authorized by him, to import into the United Kingdom any copies of such book reprinted or republished in Canada ; and for the purposes of sucli importation tlic seventeenth section of the said Act of the fifth and sixth OSes as " The 1875.] 38 & 39 VICT. c. 53.— CANADIAN ACT. 657 vears of the reign of Her Majesty, chapter forty-five, shall apply to all such books in the same manner as if they had been reprinted out of the British dominions. 5. The said Order in Council, dated the seventh day order in ^ of July one thousand eight hundred and sixty-eight, 7th July ms shall continue in force so far as relates to books which forc8°subjecuo are not entitled to copyright for the time being, in pur- '^'* ^''** suance of the said reserved Bill. See sub.-sec. 23, sec. 91, B. N. A. Act, ante p. 91. SCHEDULE. An Act respecting Copp'ights. Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows : — 1. The Minister of Agriculture shall cause to be kept in his oiBice books to be called the " Registers of Copy- rights," in which proprietors of literary, scientific, and artistic Avorks or compositions may have the same regis- tered in accordance Avith the provisions of this Act. 2. The Minister of Agriculture may, from time to time, subject to the approval of the Governor in Council, make such rules and regulations and prescribe such forms as may appear to him necessary and expedient for the purposes of this Act ; such regulations and forms, being circulated in print for the use of the public, shall be deemed to be correct for the purposes of this Act, and all documents executed and accepted by the said Minister of Agriculture shaU be held valid so far as relates to all ofiicial proceedings under this Act. 3. If any person prints or publishes, or causes to be printed or published, any manuscript whatever, the said manuscript having not yet been printed in Canada or elsewhere, without the consent of the author or legal proprietor first obtained, such person shall be liable to the author or proprietor foi all damages occasioned by :i .jAj^kM^h^ -fl !l ! .; 858 38 .t 30 VICT. c. 53.— CANADIAN COPYRIGHT. [IK 10. such publication, to be recovered in any court of com- petent jurisdiction. 4. .A.ny i)erson domiciled in Canada, or in any part of the British possessions, or being a citizen of any country having an international copyright treaty with tlio United Kingdom, who is the author of any book, map, chart, or musical composition, or of any original painting, drawing, statue, sculpture, or photograph, or who invents, designs, etches, engraves, or causes to be engraved, etched, or made from his own design, any print or engraving, and the legal representatives of such person, shall have the sole right and liberty of printing, reprinting, publishin", reproducing, and vending such literary, scientific, or artistic works or compositions, in whole or in part, and of allowing translations to be printed or reprinted and sold, of such literary works from one language into other languages, for the term of twenty-eight years from the time of recording the copyright thereof in the manner herein-after directed ; (2.) The condition for obtaining such copyright shall be that the said literary, scientific, or artistic works be printed and published, or reprinted or republished in Canada, or in the case of works of art that it be produced or reproduced in Canada, whether they be so published or produced for the first time or contempora- neously with or subsequently to publication or production elsewhere : provided that in no case the exclusive privilege in Canada shall continue to exist after it has expired any- where else. (3.) No immoral, or licentious, or irreligious, or treasonable, or seditious literary, scientific, or artistic work shall be the legitimate subject of such registration or copyright. 5. If at the expiration of the aforesaid term of twenty- eight years, such author, or any of the authors when the work has been originally composed and made by more 1? IH75.] 38 & 39 VICT. c. 53.-l{ENEWAL IN CANADA. 859 than one person, be still living, or being dead li^is left a widow or a child or children living, the same exoiusive right shall be continued to such author, or, if dead, then to such Avidow and child or children (as the case may be) for the further term of fourteen years ; but in such case within one year after the expiration of the first term the title of the work secured shall be a second time recorded, and all other regulations herein required to be observed in regard to original copyrights shall be complied with in respect to such renewed copyright. 6. In all cases of renewal of copyright under this Act the author or proprietor shall, within two months from the date of si;ch renewal, cause a copy of the record thereof to be published once in the " Canada Gazette." 7. No person shall be entitled to the benefit of this Act unless he has deposited in the oflBce of the Minister of Agriculture tAvo copies of such book, map, chart, musicjil composition, photograph, print, cut, or engraving, and in case of paintings, drawings, statuary, and sculp- ture, unless he has furnished a written description of such A\orks of art, and the Minister of Agriculture shall cause the copyright of the same to be recorded forthwith in a book to be kept for that purpose, in the manner adopted by the Minister of Agriculture, or prescribed by the rules and forms wliich may be made from time to time as herein-before provided. 8. The Minister of Agriculture shall cause one of the two copies of such book, map, chart, musical composi- tion, photogmph, print, cut, or engraving aforesaid, to he deposited in the Library of the Parliament of Canada. 9. Xo person shall be entitled to the benefit of this Act, unless he gives information of the copyright being secured, by causing to be inserted in the several copies of every edition published during the term secured, on the title page, or the page immediately following, if it be a book, or if a map, chart, musical composition, print, cut, engraving, or photogmph, by causing to be im- pressed on the face thereof, or if a volume of maps, , f 860 3S & 39 VICT. V. 53.— INTERIM COPYRIGHT. [1h7o. charts, music, engravings, or photographs, upon the title page or frontispiece thereof, the following words, that is to say : " Entered according to Act of Parliament of Canada, in the year , hy A.B., in the office of the Minister of Agriculture." But as re- gards paintings, drawings, statuary, and sculptures, the signature of the artist shall he deemed a sufficient notice of such proprietorship. 10. Pending the puhlication or republication in Canada of a literary, scientific, or artistic work, the author, or his legal representatives or assigns, may obtain an interim copyright by depositing in the office of the Minister of Agriculture a copy of the title, or a designation of such work intended for publication or republication in Canada, the said title or designation to be registered in an interim copyright register in the said office, to secure to the author aforesaid, or his legal representatives or assigns, the exclusive rights recognised by this Act, previous to publication or repubhcation in Canada ; the said interim registration, hoAvever, not to endure for more than one month from the date of the original publication else- where, within which period the work shall be printed or reprinted and published in Canada. (2.) In all cases of interim registration under this Act, the author or proprietor shall cause notice of such registration to be inserted once in the " Canada Gazette. " (3.) A literary work intended to be published m pamphlet or book form, but which is first pub- lished in separate articles in a newspaper or periodical, may be the subject of registration within the meaning of this Act while it is so preliminarily published, provided that the title of the manuscript and a short analysis of the work are deposited in the office of the Minister of Agriculture, and that every separate article so published is preceded hy the words *' llegist«'red in accordance A\ith the T^f 1873.] 38 & 39 VICT. c. 53.— MAOAZINES FREE. 861 Copyriprht Act of 1875 : " but the work when published in book or pamphlet form shall be subject, besides, to the other requirements of this Act. (•t.) The importation of newspapers and magazines published in foreign countries, and containing, together with foreign original matter, portions of British copyright works republished with the consent of the author or his assigns or under the law of the country where such copy- right exists, shall not be prohibited. 11. If any other person after the interim registration of the title of any book according to this Act within the term herein limited, or after the copyright is secured, and for the term or terms of its duration, prints, pub- lishes, or reprints or republishes, or imports, or causes to be so printed, published, or imported, any copy or any translation of such book without the consent of the person legally entitled to the copyright thereof first had and obtained by assignment, or knowing the same to be so printed or imported publishes, sells, or exposes for sale, or causes to be published, sold, or exposed for sale, any copy of such book without such consent, such offen- der shall forfeit every copy of such book to the person then legally entitled to the copyright thereof ; and shall forfeit and pay for every such copy which may be found in iiis possession, either printed or printing, published, imported, or exposed for sale, contrary to the intent of this Act, such sum not being less than ten cents nor more than one dollar as the court shall determine ; of wliich penalty one moiety shall be to the use of Her Majesty, and the other to the legal owner of such copy- right, and such penalty may be recovered in any court of competent jurisdiction, 12. If any person after the recording of any painting, dramng, statue, or other work of art within the term or terms limited by this Act, reproduces in any manner, or causes to be reproduced, made, or sold, in whole or ! i I i i ;i i I .! ■' 862 38 & 39 VrCT. c. 33.— EVASION. [iH-o. i in part, copies of the said works of art without the con- sent of the proprietor or proprietors, such offeiidor or offenders shall forfeit the plate or plates on which such reproduction has been made, and also every sheet thereof so copied, printed, or photographed, to the proprietor or proprietors of the copyright thereof, and shall further forfeit for every sheet of tlie same reproduction so puh. lished or exposed for sale, contrary to the true intent and meaning of this Act, such sum, not being less than ten cents nor more than one dollar, as the coiu't shall determine ; and one moiety of such forfeiture shall go to the proprietor or proprietors, and the other moiety to the use of Her Majesty, and such forfeiture may he recovered in any court of competent jurisdiction. 13. If any person, after the recording of any print, cut, or engraving, map, chart, musical composition, or photograph, according to the provisions of this Act, within the term or terms limited by this Act, engraves, etches, or works, sells or copies, or causes to be engraved, etched, or copied, made or sold, either in the whole or by varying, adding to, or diminishing the main design with intent to evade the law, or prints, or reprints, or imports for sale, or causes to be so printed or imported for sale, any such map, chart, musical composition, print, cut, or engraving, or any part thereof, Avithout the con- sent of the proprietor or proprietors of the copyright thereof first obtained as aforesaid, or knowing the same to be so printed or imported without such consent, pub- lishes, sells, or exposes for sale, or in any manner disposes of any such map, chart, musical composition, engraving, cut, photograph, or print without such consent as afore- said, such offender or offenders, shall forfeit the plate or plates on which such map, chart, musical composition, engraving, cut, photograph, or print has been copied, and also every sheet thereof so copied or printed as aforesaid, to the proprietor or proprietors of the copy- right thereof, and shall further forfeit for every sheet of sueh map, musical composition, print, cut, or engraving 1875.] 38 & 39 VICT. c. 63.— PIRACY PENALTY 863 , or engravms; which may be found, in his or their possession, printed or published or exposed for sah> contrary to the tiue intent and meaning of this Act, such sum not being less than ten cents nor more than one dollar as the court shall determine ; and one moiety of such forfeiture shall ffo to the proprietor or proprietors, and the other moiety to the use of Her Majesty, and such forfeiture may be recovered in any court of competent jurisdiction. 14. Nothing herein contained shall prejudice the right of any person to represent any scene or object, notwith- standing that there may be copyright in some other re- presentation of such scene or object. 15. Works of which the copyright has been granted and is subsisting in the United Kingdom, and copyright of which is not secured or subsisting in Canada under any Canadian or Provincial Act, shall, upon being printed and published or reprinted and republished in Canada, be entitled to copyright under this Act ; but nothing in this Act shall be held to prohibit the importation from the United Kingdom of copies of such works legally printed there. \^See Smiles v. Belfordy ante, p. 91.] (2.) In the case of the reprinting of any such copy- right work subsequent to its publication in the United Kingdom, any person who may have previous to the date of entry of such work upon the registers of copyright imported any foreign reprints, shall have the privilege of disposing of such reprints by sale or otherwise ; the burden of proof, however, in such a case will lie with such person to establish the extent and regularity of the transaction, 16. Whenever the author of a literary, scientific, or artistic work or composition which may be the subject of copyright has executed the same for another person or has sold the same to another person for due consider- ation, such author shall not be entitled to obtain or to retain the proprietorship of such copyright, which is l)y the said transaction virtually transferred to the pur- r ) !' , I I 864 38 & 39 VICT. 0. 53.— FALSE ASSERTIONS. fiH75 chaser who may avail himself of such privile»e, unless a reserve of the said privilege is specially made hv tlic author or artist in a deed duly executed. 17. If any person, not having legally acquired the copyright of a literary, scientific, or artistic work, inserts in any copy thereof printed, produced, reproduced, or imported, or impresses on any such copy that the same hath been entered according to this Act, or words pur. porting to assert the existence of a Canadian Copyriwlit in relation thereto, every person so offending shall incur a penalty not exceeding three liundred dollars (one moietv whereof sliall be paid to the person who sues for the same, and the other moiety to the use of Her Majesty), to be recovered in any court of competent jurisdiction. (2.) If any person causes any work to be inserted in the Register of Interim Copyright and fails to print and publish or reprint and republish the same within the time prescribed, he shall incur a penalty not exceeding one hundred dollars (one moiety whereof shall be paid to the per- son who sueth for the same, and the other moiety to the use of Her Majesty), to be re- covered in any court of competent jurisdiction, 18. The right of an author of a literary, scientific, or artistic work to obtain a copyright, and the copyriglit when obtained shall be assignable in law, either as to the whole interest or any part thereof, by an instrument in writing made in duplicate, and to be recorded in the office of the Minister of Agriculture, on production of both duplicates and payment of the fee herein-after pro- vided. One of the duplicates shall be retained in the office of the Minister of Agriculture, and the other re- turned, with the certificate of registration, to tlie party depositing it. 19. In case of any person making application to register as liis own the copyright of a literary, scientific, or artistic work already registered in another person's name, or in case of simultaneous conflicting applications 1875.] 3ft & 39 VICT. c. 53.— PROOF OF COPIES. 865 or of an application made by any person other than the person ontored as proprietor of a rejijistered copyright, to cancel the said copyrii.^ht, the party so applying shall he notlliod that the ([uestion is to be settled before a court of competent jurisdiction, and no further proceed- ings shall be had concerning the subject before a judg- iiieiit is produced, maintaining, cancelling, or otherwise settling the matter ; and this registration, or cancellation, or adjnstnKMit of the said right shall then Ix; made by tli(> Minister of Agriculture in accordance with such decision. 20. Clerical errors happening in tlu^ framing or copy- in;; of any instrument drawn in the office of the Minister of Agricultun; shall not be construed as invalidating the same, hut when discoA'cred they may be corrected under the authority of the Minister of Agriculture. 21. All C()i)ies or extracts certified from the officer of the ^linister of Agriculture shall be received in evidence without further proof, and without production of the i)nn;inals. 22. Sliould a work copyrighted in Cci )i ad a ]mcomc out of print, a complaint may be lodged by any person with the ^liuister of Agriculture, Avho, on the fact being as- certained to his satisfaction, shall notify the copyright owner of the complaint and of the fact ; and if, wdthin a reasonable time, no remedy is applied by such owner, the Minister of Agriculture may grant a license to any person to publish a new edition or to import the work, specifying the number of copies, and the royalty to be paid on each to the copyright owner. 23. The application for the registration of an interim copyri;,fht, of a temporary co])j right, and of a copyright may he made in the name of the author or of his legal rejjrcsentative by any ])erson purporting to be the agent of the said author, and any fraudulent assumption of such authority shall be a misdemeanor, and shall be punished by fine and imprisonment accordingly ; and any damage caused by a fraudulent or an erroneous S 2340 - 3 I ', iJ, : ) 1 li 1 I . '■ ■ l 866 38 & 30 VICT. c. 63— FALSE ENTRIES. [1H73. assumption of sucli authority shall ho recovcniljlc before any court of competent jurisdiction. 24. If any person shall wilfully make or cause to bo made any false entry hi the repjistry hooks ol" the Min- ister of Agriculture, or shall wilfully produce or caiiso to he tendered in evidence any paper Talsely pmpnrtini,' to he a copy of an entry in the said hooks, li(> shall he guilty of a misdemeanor, and shall he punislicd accor- dingly. 25. If a hook he puhlishcd anonymously it shall \w sufficient to enter it in the name of the lirst piihlishcr thereof, either on hshalf of the unnamed anthororou hehalf of such first publisher, as the case may he. 26. It shall not ho requisite to deliver any printed copy of the second or of any suhsequent (Mlition of any hook or hooks unless the same shall contain very iin})or. tant alterations or additioiis. 27. No act or prosecution for the recovery of any penalty under this Act shall he commenced mon; than two years after the cjuise of action arose. The following fees shall he payable to the Minister ol Agriculture before an application for any of the pmposcs herein-after mentioned shall he entertained ; that is to say, Dol. On registering a copyright - - 1 On registering an interim copyright - On registering a temporary copy ri ght - On recording an assignment - - 1 On certified copy of registration - On registering any decision of a f'ourt of justice, for every folio • c. no 50 00 r.o i)0 On office copies of documents the following charges shall he made above n\eiit. Dol. c. For every single or first folio certified copy 50 ^1 ^ 1875, 38 k 39 VICT. c. 33. -CANADIAN PEES. Dol. 867 ('. For every suhsoquent one hundred words (fraction.s from and under fifty IxMiiLf not counted, and over tlfty being counted for one liundr liich they now extend, and shall be assign- able and rencAvable, and all penalties and forfeitures in- clined and to be incurred under the same may be sued for and (niforced, and all prosecutions commenced before the passing of this Act for any such penalties or for- I'eituivs already incurred may be continued and com- pleted as if such Acts were not repealed. 30. In citing this Act it shall be sufficient to call it "The Copyright Act of 1875." [See International copyright Act, 49 & 50 Vict. c. 33. post.] 3i 2 li r •i\ ' i' I 868 49 & 50 VICT. c. 33.— INTER. COL. COPYRIGHT. [im. 49 & 50 VICT. c. 33. Short titles iilld coiistriR'tion. Aniendnit'iit tis to extent anil I'tfect ot'oi'ilel' uniler Intei'- natidnal Copyrijilil Act*. An Act to aineiul the Law respecting International and Colonial Co])yriglit. [25 June IbSO.] WHICUEAS hy tlui Inti^rimtiomil Copyrigh* Acts Her ^lajcsty is autliori/,»'(l hy Order in Council to (lireet tin.t ns regards litcriiiv iind artistic works livst published iu ti foreign country the aulhnr sli.'.fl have copyriglit therein during the period specilied in the onlcf, not exceednig tlie period (hiring which authors of the like works liist |iiili. lisheii in the I'nited Kingdom have copyright : And wlieieas at an international conference held at Ihrnr in tlio month of Septeml)er one thousand eight hundred and eighty-li\c a diiil't of a convention was agreed to for giving to authors of liier.uy ami artistic works lirst published in one of the countries parties to the emi- veiition copyright in such works throughout the otlier countries parties to the convention : Ami wluMcas, without the authority of Parliament, such conveiiiiuu cannot lie carried into effect in Her Majesty's dominions and coiim;- (piently Her Majesty cannot become a party theicto, and it is ex|ii'(iiii.t to cnaidi' Her Majesty to accede to the convention : He it tlierefore enacted by the Queen's most Excellent Majesty. Lr aiul with the advice iiiid consent of tlie Lords Spiritual and 'reiii|H)iai, and (."onunons, in this present Parliament assembled, and hy the auliie rity of the same, as follows: 1. — (1.) This Act mav be cited as the Interuatiomd Copyriglit Aet. 18S(5. (2.) The Acts specified in the first part of the First Schedule tdtliis Act are in this Act rcferr«'d to and may be cited by the short titles in that schedule meu'ioned, and those A' ts, together with liie eiiaeiiiieiii specilied in the second pari of the s^aid schedule, arc in this .\el eollee tively referred to as the International Cojiyriglil Acts. TIic Ads s|)ecilicd in the Second Schcyright, to hav«' been first produced, and for I'll' imrposes of this section " country " means the Ignited Kingdom and a country to which an order under the said Acts applies. (2.) Where a work produced simullam ously in tlu' United Kingdom, and ill soiiii' foreign country or countries is by virtue t f an Orth'r in Coniicil under the Interimtionid Copyright Acts deemed for ihe purpose (if coiiyiighf to be first produced in one of the sjiid foreign {"^Miitries, mill nut ill the Uniteil Kingdom, the copyright in the I'nited >».iigdom .'ijiall lie such only as exists by virtue of production in the said loreign ('(iiiiitry, and shall not be such \isions (if nil}) ii.- it appeals to Her Maje.sty expedient to reipiiie for tlie protcc- lion ol authors of works first produced in the I'nited Kingdom. 5,~(1.) Were a work being a Itook or dramatic piece is first pro- Rcstriotion on dnted ill a foreign country to wliieli an Order in Council under the trmisliitiDM, liiteiimtidiial Copyright Acts apjdies, the author or publisher, as the case imiy be, shall, tiiiless otherwise directed by the order, have the same lifllit (pI jueventing the production in and importatii.!! into the I'nited Kingdom of any translation not authorised by him ol the said work as lie has of pi'e\entiiig the production and importation of the original work. {2.) Provided that if after the expiration of ten years, or any other term pieseribed by the onU-r, next alter the eiul of the year in which the Work, or in the case of a book ]iul)lished in iiiimbei's each iiiiniber of the Itook, was first produced, an authorised translation in the Ki gli>li laii;nii;;i' of such Work or iiumber has not U-en prodiiceil, the said njjht to |ii(>V)'ni tl'.e prodiietioii in and importation into the I'nited Kingdom 0- an iiiiaiithorisid translation of such work shall cease. (.1) 'ihe law relating to copyright, iiieliidiiig this Ael, siiall ni)|)ly to a lawliijly produced trnnslation of a work in like manner as if it were an original work. (4./ Such of the provisions of the International Copyright Act, 1852, relating to translutions as are unrepealed by this Act shall apply in like nmuuer as if they were re-enacted in this section. it 870 49 & 50 VK'T. c. ;i;i.— EVIDENCE OF FOREIGN. isso, Application of Q^ Where an Order in Council is uiude under the Interniitional Vom- Act to existing right Acts with respect to any foreign country, the author and imlilisher ^"^ "■ of any literary or artistic work first prothiced Iwfore the date at wliith such order comes into operation shall be entitled to the Rauif rii'hts find rcjiiedic s as if the said Acts and this Ant and the said onKr liml ap[)lie(i to the said foreifjn country at the ds . of the said production : Provided that where any i)erson has before the date of the i)ul)lication of an Order in Council lawfidly j)rofluced any work in the United Kinfjdoni, nothing in this section shall diminish or prejudice any rights or interests arising from or in connexion with such production wbicii are subsisting and valuable at the said date. Evidence of foreign copy- right. to coloiiien. 7. Where it is necessary to prove the existence or proprietorsliip of the copyrigiit of any work lirst produced in a foreign country to wliiili an Order in Council under the International Copyrigiit Acts a|i[)liis, mi extract from a register, or a certificate, or other do- ' sessiot: in like nnmner as they apply to a work first produced in the UJted Kingdom : Provided that — (rt) the enactments respecting the registry of the copyright in such work shall not apply if the law of such po.s.se.ssion provide> for the registration of such copyright ; and (6) where such work is a book the delivery to any persons or ijodv of j»er,sons of a copy of any such work shall not be iviiuired, (2.) Where a register of co|>yright in books is kept under the aiitliority of the government of a British possession, an extract from tiial register purporting to \)c certified as a friu- copy by the ollicer keeping it, and a)itlienli«uited by the public seal of the British possession, or by tlie otiiciid seal or the signatm-e of a governor of a Britisii jKi.sses.siuii, of of II ((donial secretar}, or of some secretary or minister ndniinisteiing a de|)ai'lnient of tlu' government of a British pos.>^.se.ssion respecting coi)yrigiit in any literary or artistic works. Her Majesty in Council nuiy make an Order niuilifyiiif; the Copyright Acts and this Act, so far as they apply to such British posses>ion, and to literary and artistic works lirst produced llu'ieiu, iu such manner as to Her Majesty in Council seems expedient. (1.) Nothing in the Copyright Acts or this Act shall prevent the jMiKsing in a British possession of any Act or ordinance respect in}; the copyright within the limits of such possespion if works first produced in that possession w EIGN. rissfi. 1886] 49 & 50 VICT. c. 33.— MEANING OF WORDS. 871 1 9, Where it appears to Her Majesty expedient that an Order in Coiincil under the International Copyright Acts made after tlie passing of this Act as respects any foreign country, should not apply to any British possession, it shall be lawful for Her Majesty l>y the same or any other Order in Council to declare that such Order and the International Copyri^iits Act and this Act shall not, and the same shall not, apply to such British possession , except so far as is necessary for preventing any prejudice to any ri-ly to carry into effect a con\ tji- tion \\i\h France on tliesuh- ject of copyright, to e.vteiid and explain the Interna- tional Copyright Acts, and to explain the Acts rehiting to copyright in engravings. An Act to amend tlie law re- lating tolnternational Copy- right. .Short Tillo, The Inleniatimiiil Cop>i-iH;|il Alt, 1811. The Inleiiiiitidiiiil Copvri^'lit Aft, 1H52. The Interniilioii:il C(ipMii,'lit Alt, 187^ Part II. iSeesinn niul Chapter. Title. Enactment referrt-d to. 25 & 26 Vict. c. 68. An Act for amending the law relating to copyright in works of t!ie fine arts, and for repressing the commis- sion of fraud in the pimliic- tioii and sale of such works. Section twelve. -i IjtSG.] 49 & 50 VICT. c. 33— OLD COPYRIGHT ACTS. 873 If! jiij II SECOND SCHEDULE. Coi'YKKiiiT Acts. .Sossion am' Chapter. Title. () Geo. 2. c. 13. - An Act for tlic i'iicoiir»}!;('iiU'nt i of tlic arts of (Icsif^iiiiii;, en- gniviiifj;, and clcliiu};, histo- rical, and other prints by v«'stin}^ tiu' proiHTtics there- of in ihc inventors and en- {jravers diu'in;; tiie time tlicrein mentioned. Geo. 3. c. 38. - An Act to amend and render ' more effectual an Act made I in tlie eiglith yeai- of tlie reign of Kinjr (Jeorge tiie Second, for encourajiement of the arts of designinfi, en- graving, and et<'iiing, histo- ri<-al and other prints, and for vesting in and secnring to .lane Hogarth, widow, I tlu' pro|)erty in certain ! ptints. IJ Geo. 3, c. 53. An Act for enahh'ng the two Universities in ICiiijl Copyrijiht Aci, IH.'io. Thel'rintsniidEii- gravings Copy- right Ad, LS3G, The ('ii|>\Tij;lii Act, 1830. The t'()|i\lin;lit Act, isi:'". The Cdioniiil Copvriglit, Alt, 1847. 'J"he Fine Aii« Copyright Act, 1802. ACTS. [i«sr,. ■ i^t,!,] AMER. COPYRT.—LIBRAltlAX OF COiSGRESS. 875 nt Short Title. The Scnlpturp Copyright Act, 1814. Tlic Dliiiiialii' C'opyi-iglit Act. ih;{;{. The Li'ctllli". C()IiYri>,'lit Aci, Thc'l'i-imsniidEii. {jruviiigs Copy- right Act, l((3t). Till? C'(i|tvriglii Act, 183G. The Copvriglit Act, isr/. The Coloniiil Copvi-iglit, Ad, 1847. Th*' Fine Ari« Cojivrigbt All, 1862. SeMion and Chapter. riSVict. «■. 12. l,)vt 11) Vict. C-. 12. 2.j\2a Vii't.c.US. THIRD SCHEDULE. Acts Repealkd. Titlf. An Act to nmend the kw re- lating to intermitioniil copy- right. All Act to eiitihii' Her .Miijesty to carry into elfcct ii con- vention with France on tlie ."sul)jcct ol' copyright, to ex- tend unci exphiin tlie Inter- mit loniil Copyright Act s, c nd to explain tlit^ Act.'< relating to copyright engra\ ingH. An Act I'or amending tlie liiw relating to copyright in works ol" the fine arts, iind i'or reiires.sing the ceininis- sion of Ifaiid in the i)rodiic- tionand sale of such works. Usti'iil ut liopcal. Sections fom-teen, seventeen, and eighteen. Sections one to live both inclusive, and sections I'ijlhtand eleven. So much of section twelve as incor- porates any en- actment repeal- ed by this Act. AMEllICVN COPY IIIG LIT. TITLE GO. c. \i. U.S. U.S. (IS7H) U57., and 26 U.S. S. at L. p. 1107. As it .stands amended by Act of 8 March 185)1, Scss. 2. c. 505., for the piu-poso of givins^ effect to the Berne Internatiomil Copyright Convention. 4948. All records and otiier thing.s relating to copy- copyrights to i'ii,'lits iiud required by law to be pre.served, shall be under cimrge*of the control of the Librarian of Congress, and kept and J^,!^''""^''*" "^ preserved in the Library of Congress ; and the Librarian of Congress shall have the immediate wire and super- vision thereof, and, under the supervision of the Joint Committee of Congress on the Library, shall perform all acts and duties required by law touching copyrights. n ,;ongreM. ! '') • .i1 _1Ll. M iTsntft'l S' f -'^ . J*itl' llI^HV «W *• *1 tl . ■f Seal of offlop. JJond of I imdc witliiii the limits ol' tlio Vnitcd S/atrn, or from Inuist'crs mado tluM'ofrom. Duriniu^ the oxisionce of sucli copvriulit tho importation into tho Unilcil Stales of any hook. chromo, lithoiijraph, or ])hotos?rapli so copyrinhlcd, or any edition or editions thoroof, or any i)latos of ih(> same not mado from typo set, n(^^'ativos, or drawinii^s on .sfonc mado Avithin tho limits of tho United Slates, shall he, and it is horohy, prohihitod, oxcopt in the cas(>s s|)('ci(k'(l in paraijraphs 512 to 510 inclnsivo in soc. 2 of Iho .Vet entitled "An Act to Rednc«^ the lleveinio and iMiualizo the Duties on Imports, and for other purposes," approved October 1st, 181)0 [see Uevenue Act, Sess. 1. c. 12H ; 26 U.S. Statutes at Laro^e, 188(liiii,' ij;5 ])('raiimmi ; and tin; Secretary and tlic l'()stinaster-(ieneral ar*^ lier(d»y (Mnpowen^d and r('(|iiiici| to make and enl'orce siieli rnh'sand rei^nlatioiis as shall Units to i-r.;- pn'vent tlie importation into tlie United Stales, cvcnit iinpoiiiiiioMH. upon the conditions above specified, of all articlts proliil)ited l)y tliis Act. 4959. The j)roprietor of every copyright hook or other art ich; sliall deliver at the oHice of the Lihrannn of Coni^n^ss, or dei)osit in the mail, address(»(l to IJic Librarian of Coni^ress at jraf ])r{)vi(led for in this Act, unless they j'orni a part ol' the series in course of l)ublication at the tinn* this Act shall take olTect. 4960. •"'or every failure on tlu' part of the pro- prictor of any copyri^:ht to d(diver or deposit in tlic mail either of the published copies, or descrijjtions, or ])hotoiJfraph, required by sections lOoG and 4!)')'.), the projn'ietor of the copyrii^ht shall be liable to a peiialtv of $25, to bo recovered by the Librarian of Coii!i;r(ss, in rhe name of the Vnitcd Slotos, in an action in the natnre of an action of debt, in any district court of the United States within the jurisdiction of which tlic delinquent may reside or hi; found. 4961. The postmaster to whom snch co])yriu:lit book, title, or other article is didiA'ored shall, if n- quested, give a receipt therefor; and when so ilo- livered he shall mail it to its destination. A.ldii foivii'iiMiitliora. I mils \iy Piimlly ft II' iiiiii>siiin. PostmastiTs to give ivciiiits. Piililioatioii of notice t)f 4962. No person shall maintain an action for tiic t'ntrytbr copy, infringement of his copyright nnless he shall irivo scriUtr' notice thereof by inserting iu the several copies of every IHf)!.] AMERICAN COPYRIGHT.— FALSE NOTICEH. 881 edition |)ul)liHh('(l, on tlin titlo papfo or tlio pas^o immo- (liati'ly follonini,', if it Im; a l)ook ; or il' a map, cliart, iDiisicjiI composition, print, ent, eni^ravini?, pliotoj^raph, |)aiiitiMi>;, diawinjj;, chronio, statue, statuary, ov model or (l('si,i,'n intended to Ix? [X'riected and completed as a work of the I'nuj arts, by inscribini; upon some j)ortion of tlii^ face or front thereof, or on th(i face; of th(! substance on \vhi(rh tlu^ same; shall he mounted, tlu; I'oliowint,' words : " KntertMl accordin*^ to Act of C()n<,'ress, in the yem* , hy A. \i., in the odice of ilio Ijibrarian of Congress, at WoHhlngtoti.'" 4963. Kvory person who shall insert or impress ivimiiy (..r such notice, or words of the same import, in or npon ,,'tHiny. any hook, maj), chart, di'amatic or musical composi- tion, print, cut engraving, or jdiotograph, or other article, for which he lias not ohtaincvl a copyright, shall liciiahie to a juMialty of $100, recoverable oncshalf for llic person who shall sue for such penalty and one-half to the use of the United StatoH. 4964. Every person, Avho, after the recording of the vi..iaiio..sof * . . , . coiiyriglit (if titlt! of any book and the de])ositing of two copies of i-'okx. such book, as provided by this Act, shall contrary to the provisions of this Act, within the term liniited, and without the consent of the jjrojjrietor of the copyright lirst ol)tained in writing, signed in presence of two or iiior(5 witnesses, print, i)nblish, dramatize, translate, or import, or knowing the same to bo so printed, luihlished, dramatized, translated, or imported shall sell or expose to sale any copy of such book, shall forfi'it every copy thereof to such proprietor, and shall also foilcit and pav such damages as may be recovered i'""''"''''"^— in a civil action by such proprietor in any court of competent jurisdiction. 4965. If any person after the recording of the titlo violations of f . , . . cnpynt^nt of 01 any map, chart, dramatic or musical composition, ini>i.s,ciuiriH, pi'iiit, cut, engmving, or photograph, or cliromo, or of the p'^"'"' ' '^'"8"'> 'li'sci'iption of any painting, drawing, statue, stntuary, or model or design intended to be perfected and executed as S 2310. 3 & 1 ; i \ i i! J i!!r i 'm B 1 1 1 if 882 A^rERTCAN rOPYRTnilT.— FOTlFTaTURES. ;isoi. a work ol' tin' (inp arts as j)rovi(l(Ml by this Act, sliall, Avitliin tho torin limited, contrary to tl«o ])rovisi(>;isor this Act, and Avithoiit tho consent of tlie ])ro[)rietor of |||(> copyriufht lirst obtitinod in Avritini^, siii;ne(l in vrcsciicc of two or more .itnesses, engrave, et eh or work, eopy. print, publish, dramatize, translate, or import, either in whole or in part, or by varying the main design with intent to C7adc the law, or, knowing the same to iic so i)rinted, ])iiblished, dramati/'vl, translated, or 'm. ported, shall sell or (»xj)Ose to sale any co|)y of such •■ up or otlier article as aforesaid, he shall forfeit to th('i)r(i. pri(>tor all tlu; ))lates on which the sanie shall be copicil and every sheet thereof, either copied or printed, ami Money luniiity. shall furtlicr I'orl'cit .fl forev(n'y sheet of the sani(> foimd in his possession, eitlun- printing, printed, copied, puh- lished, imported, or exposed for sah», and in cascola painting, stj\tue, or statuary, he shall forfeit !J;1() tor every copy of the same in his j)ossession, or by him sold or exposed for sale ; one half thereof to the proprietor. and the other half to the use of the Vuitod Stales. I'lirfuiluif cpf pliilos, sluTls, (id. I)ispositii)ii lit' [H'OCfCtls. I'\)r violiiliiiK (•i)|iyri);lil of ■ Iraiiiatii- I'ljinixciliniis, I)Mniiit;(s I'cir jii'inl'ii)i 111' imlilMiiii;.' iiiiy iniiii\i-rri|il williDUi run- si'iil lit' iiiitiior. Tiitnifal liiM > ( art inn ill npy- riglit Ci-cH. 4966. Any person publicly performinL,' or represent- ing any dramatic composition for which a eopyriii'ht h.h been obtained, without t!i<' consent of the proprietor thereof, or his heirs or assigns, shall be liahle for damages therefor; such damages in all cases to be assessed at such sum, not less than $100 fen- the llr>t and $50 for every subsequent pi'rformanc(», as to lite court shall appear to be just. [Houcicault v. l'o\. 5 lilatch 87. The Sam(> v. Hait, 1.'5 HIatch 1.7. | 4967. Every person who shall print or publish any rnanuscript Avhatever witl out the consent of tlieautlioi or proprietor iirst obtaine.i shall be liable to the aiitlior or proprietor for all damages occasioned by such injury. 4968. No action shall he maintained in any caseol' forfeiture or penalty under the Copyright Laws luiloss the sjimc is commenced within two years after the cause of action has arisen. 'm TREs. ;iHni. lis Act, slmll, fvisi(»;>s ol' this prietor of the i>(l in i)n'si'iici> II' work, oo|n, |M)rt, ('itiier in 11 (losigii with LO Rllino to iii' iliited, or 'in- y of suc1> '•HI) ('it to tlic pni- hall !)(' coijicil ii* printed, ami lio same found il, copiinl, pul)- id in case of ii orlVit $10 fur or bv liini suU t tho proprictdv, ?il Stolen. ijf or rcprcst'iii- i <.•(>l>yri^•lll liib the proprietor !)«' lial)li' fur 11 cases to 1m' )() for tlio liiM mce, as to llic jicault V. i'<>\, tch 17.] or i)id)lisli any t of theaiitliov lo to the aiitlKii- by sucli iiijiii'v. I in any case ol" hi Ljvws inilesx rafter the cause 1801] AMERICAJf COPYRIGHT.— INJUNCTIONS. 883 4969. In all actions arising under the laws rospoct- i><"f"ru m- 11 ,. •!. 1 •!• • ' I' •! I ill I trie- i.<'niiilliii>r state or natu)n permits to citizens ';: -.i.e ( niti'd StatcH m,„iIi.i' rigiiu, of America the benefit of copyright on substantially the same basis as its own citizens; or when such foreign state or naticm is a party to an int!»t, by the ttM'nis of which agreement Ww. I'nilcd Sliit:;i of America may, at its ph>asure, b(!ce..u» a i)arty to such agreem'Mit. The existence of < itlnM* of (ho iVooi,iiiviii..iiM. condn ions aforesaid shall be (h'termined by the I'lesich'nt '>!" the United States, by Proclamation nuuh' from lime '"time as the purposes of this Act may require. a K 2 ■i ' 884 40 & riO VICT. c. 4S.- MEDICAL ACTS. \\m. By U.S. Act. .T March 1893, Soss. 2.c. 215., an oxton- .sion of time to 1 March 1893 was gi.rntcd for dclivcrv of copies to tlie Lil)rarian of Conj^ress Avhcre th(M(> had hee?i a faihir*^ to (leliv^n* c(>i)iea. And ill 27 U.S. Si.i. at Lari^e p. 981 Is given a rroHa. niation hy the U.S. oxtcndinjif tlie privileges of the Act to citizens of BeUjiiim, Franco, and (Iroat Bnto'in and Sii'itzerlunil, on the ground " that satisfactory official assunmeehave been given that in Belgium, France, (1 root Britain, and the British possessions and Siinhcrldiid. the law jierniits to citizens of tlie U.S. the henellt of copyright on siihstantially the same hasis as thc^ citi/i of those conntries." The benefits are also ev dr id Gennanji, ibid. p. 1021 ; and Italy, ibid. p. 1013. 19 VICT. (18S3) c. 13. Cape Ilace Lightho.i e, Nctrfonndland, ti-ansfeiTcd ' Canada. ' Rcgistnition of c'olciriiiil priictiliimcr willi ri 1 c 1)^1 li sill (li|('o<;nis('(l coloiiiiil iiii'diral ili|iloina or iliploiiiiis (as l.-.-rciii-iiflci' ililiiiiih •^rartiMl to liiin in a Uiitisli pos«'ssion lo wiiicli this Act applio. iin'l tliiit he JH of when hi' was not domiciled in the United Kiiijiiieiii, cir;!i the course of a period of not less than live years iluriM;,'tlie wiiuli' of whiili he resided out of the ITnited Kin lll)lil< Siilllc rciii-iifti'i' ilrliiiiil) I Act ii|i|i!i('-. mill lllillcil III |il;iiliv' 'ssidii, III' sliiill, nil ell I'ct' not cxci'cil- to tiiii(> (Iclci'iiiini', III, to lie ri'iji-l.'ivil irislriir iiin of tin' 188G.] iO & 60 VICT. c. 48.— MEDICAL DIPLOMAS. 885 scribed day, and that ho has continuously practised the same either in the United Kingdom or elsewhere for a jjoriod of not less than ten years iinmediatt'ly preceding the said prescribed (hiy. 12. ^^11 iiii'l after the lid prescribed diiy where a person shows tc tlic siilisl'iiction of th e registrar of the General Conneil that he holds soiiif recognised foreign medical diiilonia or diplomas (as herein-after ilfliiM'ii) granted in a foreign country to which this Act ap|»lies, and that lie is of good eliai'iictcr, and that he is by law entitled to i)ractise iiHMlicine. surgery, and niidwifer'y in such foreign country, he shall, on Rcpisti-ntion of forrign prnp- titioicr with rcoopiniscd (li|ili)niii. ii|i|: linitMili to th d ristrar and pay nient of such fee not t'xceed- livc pounds as the (Jeneral C'oiineil may from time to time determine, «■ ciilillcd, without examination in the United Kingdom, to be registered Ml I'dieign praetit'oner in the medical register; Provided that he proves to the satisfaction of the registrar any of the ullowiiig circumstances : — (1.) That he is not a Hiitish subject ; or (•J.) i'liiit, being a Urilish subject, the said iliploma or tliplomas was or were granted to him at a time when lie was not loni)is as mav be- leciiirnised for tin- time Mirll llli'ilica I diph ln'iiig by the (Jciieral Council as furnishing a siillicieiit guarantee of the |iosM'ssiiiii of tile reipiisile knowledge mid skill for the e(licjeiit practice of 1 liciiie, siirgt'ry, and midwifery. ('2.) Whei'c tlie (ieneriil C •iincil haxc refused to lecognise as iii'oie- il diplonia, the Prixv Coiineil, on Miilioal ilijiliiniii of ciiloiiial ami fiircinn iH'ao- lilioin'r wlien ili'cmril Id Iio ri'i'oftiiisuil. (I iiiiv colonial oi- i'oreijiii ni apjilieatidii being made to tlieui, iiiiiy, if they think lit, after considering Mii'li applicati>>n, and after eomieiinication with the Cien(>ral Council, iii'drr the (ieneral Council to retogiiise tl"' said diploma, and such onh-r >liall lie iliilv obeyed. (;i.) If person IS !'( fused i'e<;istiatioii as a colonial or i'< oreiifii iHiiililiniier on any ullier ground thai that the medical diploma or liliioiiiM.' held by such person is or arc not sii.li recognised nitMliciil, liliiciim or diplomas as above (h'lined, the registrar of the Oemral Coiiiiiil shall, if reipiiri'd, stat(! in writing the reason for such refiisd, ■iini llie |ieisc- 7 i i \m I il ii )sl Siii ?' ■ ill i^iii IVn i|9 ilil .ijiii \M£j M 886 11) . •iUiIo (iiit ul|iliiilM-licully accoi'dinir to tlic swy. iiitiiii's; mill tlic provisiiiiis ol' tlic Mitdiciil Act, IH.'iS, nlatiii;; In ihixius i'c^istci-ciiiii> apply in the ease of persons ieession of or llierenfiir olitains any rei'o<{iiised eolonitil or forei re;;istereil liiedical praclilioner who, Im-Iiij^ on the iiiedieal n'};isti'r liv \irtiie of Kii^xlish, Scotch, or Irish (|nalilicalions, is in possission of ii forcijjii ilejjree Vi inediciiie, to caiisi' a description of siieli foiri;jii niediial de<;i'ee to In' adiled to his name as an additioni.l litle in ilii' medical ie;;ister, proxided he shall satisfy the (leiieial (Joiiliril limt In I'litaiiicd such de<{ree after pro|M'r exumimitioii mid prior lo llie pno^in;' of this Act. Mi'ilir.'il lilies III' I'liliiiii.il mill Ion i;,'ii IM'Itl'llholliMS. lu'lil \<\ ri'iii.N ti'l'i'il iiirilifil |iriicUliuiit'i'K, I'oWlT of Ih r Maji'sty ill t'oiiiiril to ill liiic ('oloiiir- mill foreign foiiiilrii- to wliirli tliin |>art of llif Alt ii|«lilir>. 17. — (I) "''I' Majesty may froii. time to time liy Order in Coiniiil declare tliat this part of this Act sliall lie deemed on and aftir u ilii\ in lie iiameii in sueh Order to apply to any Uritish pnsscssinn or ioiii;;ii coiiiiiiy which in the opinion of Her Majesty alTonls to the ir^'i-lnni •iieilical practitioners of the I'liited Kinploiii such pri\ ileoiN of pnuti.Mii^' in the said Uritish possession or forei<;ii country as to Her Miijr>iy iimy seem just ; and from and after the day named in such Onhr in Coiiiiril such Uritish posM'ssion or foreijiii eountry shall In deeniicl to Ih' ,i Ih'itisli possession or forei^^ii country to which this Act applii'> wiiiiin the meaning of this part thereof; iiiii .mill such Order in ('oiincil liii< lieeii made in re-^|M'cl ol any Uritish possession or forci};n connliy. llii- {Nirt of this Act shall not lie deemed to apply to any such pi»M'»iiiii nr country, and the expression "the presi'i ilicii day" as used in llii« |piiil of this Aei ineaiis, as res|i«'cls an\ Uritish posscssiiui or foreign loiiiiiiy the day on and after which this part of this Act is ilci-lareil liy Onln in Couiieil to aiiiilv to such Itritish iiosscssioii or foreiun eouiilr\ ■ipi ('J.) Her Majesty may from time to time liv Order in Coii iin iiid renew aii\ Order Hide III pursuance o f I hi 1 ICMlivi I s section ; llliil en llu OIVI"ll re\'icatioii of such Ordi r as respects niiv Uritish imssi'ssion or f coiiniry, such possession or foreign country shall cease to he a posH'-inii or eountry to which this part of this Act iip|ilies, without |iiijiiclin nevortheless to the ri^ht of any |K'rsoiis wIiomo names have liein iilriiulv entered on the lej^ister. AiiiPiiilmciil of 21 iV; 22 Vi.i, e. !»». I., aii,, ns to nieilical ottictTi ill ifhipa. 18. Nulhinj; in the Mediial Act, \H!)H, shall pri'Mitl a |m holding a luedieal diploma entilliiifr him to practise meiliciiie or m pry ill n Uritish possession to wli'i-h this Act applies from Imliliii;,' appointment iis a medieal ollieer in any vess4-l I'c^istered in tliiil |« I'M III »j«s«ion. He<". 27 contained the iisud th-flnition ol IJOHsession." f th e c\pri>ssion Ul•ili^ IHSG. IS) & M VlCr. c. 35— NEW CAN. IM.l'VS. bb7 ii|| 49 & 50 VICT. (1B80) c. :jr>. All Act respcctini^ flic Hcurcscnlution in the Parliji- I'.M'iit ol" Canada of Territories whicli I'or the time Immii^: I'orni part of the Doniiiiioii ol' Canada, but arc not included in any Province. | 25/// June 1880.] U' II KKKAS it is i'\|M'(licnt l\ iiiiii l.y I'm- the representation !•> llie Senate ami Ilonse of Comriions of Canada, l|ii"liiii"i m "f or ill either III' ilieni, of iinv territories whieii for the time liein-' form "i""'" J'"' |iiirt ol till- I'oniinioii ol ( aiiada, Iml are not ineliideil in any pro\ mee ,,|- 1,.,.,-!!,,,.;,., tilc'I'lKlf. 2. Aiiv Aet pa'-sed liy the i'liriiiimeiit of Canadii liefore the passini: itf KtTni ol' Ac(> ilii» Ac! i'nr the piirpoN' nieiilioiieil in this Aet shall, if not disallowed "f I'iU'liniH iii In the (^iieeii, lie, alld shall lie deemed to ha\e lieeii, \iilid and eirectlial "' •'"■"'"• IrcHii till date at which it leceixed the assent, in Her Mujesty's minie, oi ilic (i(i\eriior-(ienerid of Canada. ll is hereliy declared that any Aet passed liy tiic I'arli' .iieiit of t'liiiiiila, whether liefore or after the passing; of this Act, for the |iii|ii)'.e iiieiitioiied ill this Act or in the Hritish S'ortli Am rica Aet, .'it iV H.) Vni. h7l, has effect, notwithstanding anvthii'^ in the Mritish North ''• '''"'• AiiiiMKii Act, IH(J7, ami tlic nmiilM'r of .si nators or liie niimlier ,,|' ••''''^ •" *"'■ iiiniiliers ol' till' lloii.sc of Commons >pe"-"•'"■"""• liiiiiMi North America Act, 1H71. shall he « sfiicd to;;ether, and |f".j^ '" ^ "'' luiiv Ih' cited to;;eiher as the Urili-h Norlh America Act.s, 1HU7 '" 'aViV ■(> \ ni l""^"- v.M," I ' I ! 50 & 51 VICT. (1SH7) c. v.). This Act Cf)ntj\ine(l provisions wliieli inii^lii lie held h) extend to all Ctdonial (lovernors. It was I'or the I'lirposc of extendini,' the 2S .t 20 Vict. c. llv'J., and •i'' vt ;Uj c. 20. (Colonial (ioverntn-s Pensions Acts, and 1872), to th(> llij;h Coinnjissioner of Cyprus. ! sss 51 & 52 VICT. c. G5.— COL. ATTOKNKY.S. [\HW, ol ct 52 VICT. (1888) c. 65. An Act to provide for the custody of tli(» lioH of ^Solicitors. liy «L'c. 20 of (his Act and tlio sclictluhj to ilicAci, tlui Colonial Attorneys Koliof Act, 1857, 20 & 21 Vici c. J}1). [((ufc ]). 710] Avas ropealcd as follows. Sec. 5 from the words " for the jiidi^cs" to " solicitor also and," ami from " and not as an attorney " to the first " reciiiircd " ; and fnnn " an attornev or solicitor" to " attonicv mid solicitor"; and from "and if bv any such" to liist "after mentioned"; and from tlu* second "to ad- minister" to "taken and"; and the words "and thev," and "or th(^v," and " (u- them," wherever tlicv occur, and the Avords "in the Court of Cliaiiccrv" and " o!" such court." 51 VICT. (1888) c. 70. ApjH'llate Jurisdiction Act. See AiJjx'ndix W. For Merchant Sliii)|)ini,^ .Vets, 51 Vict. c. (;2. ; 52 it :.:! V^ict. c. 10. (tonna^«^), and c. 08., rilotJij;e; and c. ?•)., use of tlags in l^ritish Merchant service, ace .")7 k .> Vict. c. 00. posi. r>:\ .Si 5t VICT. (1890) c, 27. [This Act repeaU'd the pievious Vice-Admiralty Courts Acts. See Seh. 2., and as to l*rize Courts, .see 57 & 58 Vict. c. .*«). po.sf. ] An Act to amend the Law rospectinj;' the oxercisc of Admiralty Jurisdiction in Her Maje.sty's D(miinions and elsewhere out of the Tiiited Kingdom. [25/// Jnl>i 18!H).. BE it (Miacted hy the Queen's mo.st Excellent .Maj(">i}. hv and witli the advice and consent '>f the Lord:< Spiritual and Tempornl, and Common-s. in this present Parliament assembled, and by the authority of tliesaiui', as I(>''.oWB : -rrm im.] 63 & 54 VICT. c. 27— COLllTS OF ADM. 889 1. Tliis Act may be cited as the Colonial Courts of Admiralty Act, 1890. 2. -(1.) Every court of law in a liritisli possession, wliicli is for tlie Wnur beiiiu; declan'd in pursuance ol" tliis Act to be a court of Admiralty, or whieb, if no such (Icclarafion is in fonu' in the possession, has therein oiiirinal unliniit(Hl civil jurisdiction, shall be a court of Admiralty, Avitb the jurisdiction in this Act mentioned, and may lor the purpose of that jurisdiction exercise all the powers wdnch it ])oss(!sses for the ])urposeof its other civil jurisdiction, and such court in reftruncc^ to the jurisdiction conferred by this Act is in this Act referred loasaColoiual Court of Admiralty. When? in a JJritish possession the (Jovernor is tlu; sole judicial authority, till' expression " court of law " for the purposes of this section includes such (Jovernor. (2.) Tlu^ jurisdiction of a Colonial C\)urt of Admiralty sliall, subject to tin; j)rovisions of tliis Act, bo ovim* tlu^ like places, persons, matters, and thijii^s, as the Admiralty jurisdiction of the IIii,di Court in J'hirein substituted for " ViccsAdmi- valty Court" or for other expressions respectively r'fcrrin^' to sue)' Vice-Admiralty Courts or the judj'e thereof, and the Colonial Court of Admiralty shall have jurisdiction accord inj^ly. I'rovided as follows : (".) Any enactment in an Act of the Ini]>erial I'ar- liament referring; to the Admiralty jurisdiction Shurt title Colipiiial Ciiiirtw of Ailniiralty. : 9 i f- ' • 1 \ \ ( i j ': y 1 ! 1 1 ' ! ! . M 27 & :iH Vict. »•. 2.>. JJfi iSt a? Vict, 0. 88. Power cif roliiiiial IcBifilatiin' iis to .\ ccdiire ni any court or such possession m respect oi the iis>".iit.' jurisdiction conferred by this Act, or alters any such Colonial law as above in this section mentioned, which lias Ih'cu i)reviously passed, shall, unless previously approved by J [or ^Majesty throui^h a Secretary of State, (•ithcr be reserved for the sii^nitication of Her ^lajesty's pleasure thereon, or contain a suspendin<^ clause pro- vidiiii,' tliat such law shall not come into operation until llcr Majesty's pleasure thereon has been publicly sij^ni- licdintlie British })ossession in which it has been i)asse(l. 5. Subject to rules of court under this Act, iudi'inents ''".""'' -^''I'i- ol'a court m a British jjossossion given or nuule in the exorcise of the jurisdiction conferred on it l)y this Act, shall be subject to the like local aj)peal, if any, as judu;- ments of the court in the exercisj' of its ordinary civil jurisdiction, and the court having cogiii/anee of such appeal shall for the purpose thereof possess all the ju- risdiction by this Act conferred uprn a Colonial Court of Admiralty. 6.--(l.) The a|)i)eal from a judgment of any court A.irniiMit.N lua Jintish possession m tlio exercise ol the jurisdiction (jiu.n in conferred by this Act, either whore there is as of right * """"'''' no local appeal or after a decision on local appoiil, lies to llcr Majesty the Queen in CouikuI. ; :i i 892 53 .t r,i VICT. c. 27.— API'. FROM ADM. CIS [i HIK), (2.) Save as may bo otherwise .specially allowed in n particular cnse by J[er Majesty the (^iiecn In Coiimil, an apjieal under this section shall not be allowed — {(t) I'roiu any judi^inent not havini; the cllcct of ,i definitive judgment unless tln^ court a]>|ii'ali'il from has <;ivon leave for siu;ii app<'al, nor {h) from any judi;in«Mit unhiss tin; [M'tition orapiKul has been lo(l ncccssarv, or as wer(5 possessed by the lliu;h Court of 1 )t'l('i,'at('s before the i)assin^ of the Act transferring the powers df such court to ILer ^fajcvsty in Council, or as arc for the tinu; beinu; possessed by thi5 J I igh Court in KiKjIoiulm by the court appealed from in relation to the like iiiatliis as tho.se forming the subject of appeals un(U'r this .Vet. (t.) All Orders of the Queen in Council or the Jmli- cial Committee; of the Privy Council for the piirinNs aforesaid «n' otherwise in relation to apjx'als imdcrtlii'' Act shall liave full elVect throughout Jfer ^lajcsty's (h)minions, and in all phices where Jler ^lajcsty li;i» jurisdiction. (5.) This section shall be in addition to and not in derogation of the authority of Tier ^Fajesty in Council cr th(« Judicial Committee of the Privy Council nrisin: otherwise than under this Act, ami all enactments re- lating to appeals to lEer Majesty in Council or to the powers of Her IVfajesty in Council or the Judicial Com- mittee of the Privy Council in relation to those a])itt'iils DM. CTS. [iHfl,, I'uiirt. IHOO] ■').'} & 54 VKT. c. 27— RULKS OF ADM. CT.S. 893 whether for inakinj^ rules and orders or otherwise, shall cxfciid, save as otlier\vis(? directed hy I[(»r Ataj(!sty in OniiK'il, to ajjpeals to Her Majesty in Council undei' this Act . 7.— (1.) Kuh's of court lor rei^ulatinii; tlie procedure Ruii-oC nnd lU'iU'tict^ (includini; I'ees and costs) in a court in a Hritisli |)os.sessi()n in the; e.vercise of the jurisdiction con- iVricd hy this Act, whether ori<.;;inal or appellat<', may lie iimde hy the same authority and in thc^ same maiuier as rides toucliinsj; the practice, procivlure, iWs, and costs ill the siiid court in the exercise of its ordinary civil jiiiisdietion respectively are made: l'i()vid(Ml that the rules unih'r this section shall not, siwoas providcMl hy this Act, extend to matters relating to the slav(» tiiidi;, and shall not (save as provided hy this section) com«^ into operation until they have heen iipprovcd hy Her ^raje.sty in Council, hut on cojniui^ into operation shall hav(; full elVect as if enact(Ml in this .Vet, and any enactment inconsistent therewith shall, so far as it is so inconsistent, he n'pealed. (2.) It shall he lawful for iler Majesty in Council, in a|)|tr()viii<; rules made und(;i' this section, to declare that the rules so nuule with respect to any matters which appear to I Ter !>rajesty to he mattcn-s of detail or of local concern may he revoked, varied, or added to without the? approval recpiired hy this s(;ction. {'].) Such rules may provide for the ex(U'ci.se of any jurisdiction conferred hy this Act hy the full court, or hy any judg(! or judges ther(H)f, and suhject to any rules, Avliere the ordinary civil jurisdiction of the court can ill any case he exercised hy a single judge, and jurisdiction conferred hy this Act may in the like case he ('X(>rcised hy a single judge. 8.— (1.) Suhject to the provisions of this section Droits of plication of any andoftho Crown. nothin droits of Admiraltv or droits of or forfeitures to the Crow n in a British possession ; and such droits and for- i n 1 I M IMAGE EVALUATION TEST TARGET (MT-3) 1.0 LI IM IIM ^ Itt 1112.2 1.8 1.25 1.4 1.6 = -4 6" — ► Hiotographic Sdences Corporation 23 WIST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ^^ 'o" ^ '4"^ -""^ ^' ■ s Power to t'stuMish Vice- Ailniiralty Court. 894 53 & 54 VICT. c. 27.— VICE-ADM. CTS. [1890, feitiircs, when condemned by a court of a British pos. session in the exercise of the jurisdiction conferred by this Act, shall, save as is otherwise provided by any other Act, be notified, accounted for, and dealt Avitli in such manner as the Treasury from time to time direct and tlie officers of every Colonial Court of Admiralty and of every other court in a British possession exor- cising Admiralty jurisdiction shall obey such directions in resp(;ct of the said droits and forfeitures as may lie from lime to time given by the Treasury. (2.) It shall be lawful for Her Majesty the Queen in Council by Order to direct that, subject to any conditions, exceptions, reservations, and regulations contained In the Order, the said droits and forfeitures condemned hy a court in a British possession shall form part of the revenues of that possession cither for ever or for such limited term or subject to such revocation as may be specified in the Order. (3.) If and so long as any of such droits or forfeiture's by virtue of this or any other Act form part of the revenues of the said possession the same shall, subject to the provisions of any law for the time being applicable thereto, be notified, accounted for, and dealt with in manner directed by the Government of the possession, and the Treasury shall not have any power in relation thereto. 9. — (1.) It shall be lawful for Her Majesty, by com- mission under the Great Seal, to empo^Aer the Admiralty to establish in a British possession any Vice- Admiralty Court or Courts. (2.) Upon the establishment of a Vice-Admiralty Court in a British possession, the Admiralty, l)y writini? under their hands and the seal of the office of Admiralty, in such form as the Admiralty direct, may appoint a judge, registrar, marshal, and other officers of the court, and may cancel any such appointment ; and in addition to any other jurisdiction of such court, may (subject to the limits imposed by this Act or the said connnission -11 f ■r 1890.] 53 & 54 VICT. c. 27.-RULES OF V.-ADM. CTS. 895 fiom Her Majesty) vest in such court 1. vliolc or any part of the jurisdiction by or by virtue i iiiis Act con- ferred upon any courts of thai. British possession, and may vary or revoke such vesting, { nd while such vesting is in force the poAver of such last-mentioned courts to exercise the jurisdiction so vested shall be suspended. Provided that — {(i) nothing in this section shall authorise a Vice-Ad- miralty Court so established in India or in any British possession having a representative legislature, to exercise any jurisdiction, except for some purpose relating to prize, to Iler JVIajesty's Navy, to the slave trade, to the matters dealt Avith by the Foreign Enlistment 33 & 34 vict. c. 90. Act, 1870, or the Pacific Islanders Protection 35 & 36 vict. Acts, 1872 and 1875, or to matters in which 38& soviet. questions arise relating to treaties or conven- "■ ^^' tions with foreign countries, or to international law; and (h) in the event of a vacancy in the office of judge, registrar, marshal, or other officer of any Vice- Admiralty Court in a British possession, the Governor of that possession may a^ipoint a fit person to fill the vacancy until an appointment to the office is made by the Admiralty. (3.) The provisions of this Act with respect to appeals to Ilcr Majesty in Council from courts in British pos- sessions in the exercise of the jurisdiction conferred by this Act shall apply to appeals from Vice-Admiralty Courts, but the rules and orders made in relation to appeals from Vice-Admiralty Courts may differ from tlie rules made in relation to appeals from the said courts in British possessions. (4.) If Her Majesty at any time by commission under tlie Great Seal so directs, the Admiralty shall by writing under their hands and the seal of the ofiice of Admiralty abolish a Vice- Admiralty Court established in any British possession under this section, and upon such ,• abolition the jurisdiction of any Colonial Court of •i ! if I ? !i li w Hi' f pr 1 jj i ■in A Power to appoint ii vice- mlmiral. Exception of Channel Islands and other pos- Application of Act to courts under Foreign Jurisdiction Acts. Kules for procedure in slave trade matters. 36 & 37 Vict. c. 60. 42 & 43 Vict, e. 38. S9G 53 & 54 VICT. c. 27.— WHO VICE-ADMIRAL. [i89o. Admiralty in that possession which was previously suspended shall he revived. 10. Nothing in this Act shall affect any power of appointing a vice-admiral in and for any British posses- sion or any j)lace therein ; and whenever there is not a formally appointed vice-admiral in a British possession or any place therein, the Governor of the possession shall he ex-officio vice-admiral thereof. 11. — (1.) The provisions of this Act with respect to Colonial Courts of Admiralty shall not apply to the Channel Islands. (2.) It shall 1)0 lawful for the Queen in Council l)y Order to declare, with respect to any British possession wliich has not a representative legislature, that tiie jurisdiction conferred hy this Act on Colonial Courts of Admiralty shall not he vested in any court of such possession, or shall he vested only to the partial or limited extent specified in the Order. 12. It shall he lawful for Her Majesty the Queen in Council hy Order to direct that this Act shall, subject to the conditions, exceptions, and qualifications (if am) contained in the Order, apply to any Court estalilislied hy Her Majesty for the exercise of jurisdiction in any place out of Her Majesty's dominions which is named in the Order as if that Court were a Colonial Court of Admiralty, and to provide for carrying into effect sucli application. 13.— (1.) It shall he lawful for Her Majesty tlio Queen in Council hy Order to make rules as to tlic practice and procedure (including fees and costs) to lie observed in and tlic returns to be made from Colonial Courts of Admiralty and Vice- Admiralty Courts in the exercise of their jurisdiction in matters relating to the slave trade, and in and from East African Courts as defined hy the Slave Trade (East African Courts) Acts, 1873 and 1879. 'm 1890.] 63 & 64 VICT. c. 27.— SLAVE TRADE. 897 (2.) Except when inconsistent Avith such Order in Council, the rules of court for the time heing in force in a Colonial Court of Admiralty or Vice- Admiralty Court shall, so far as applicable, extend to proceedings in such court in matters relating to the slave trade. (3.) The provisions of this Act Avitli respect to appeals to Her Majesty in Council, from courts in British possessions in the exercise of the jurisdiction conferred by this Act, shall apply, with the necessary raodificjitions to appeals from judgments of any East African Court made or purjiorting to he made in exercise of the juris- diction under the Slave Trade (East African Courts) Acts, 1873 and 1879. 14. It shall he lawful for Her Majesty in Council gotd/' from time to time to make Orders for the purposes authorised hy this Act, and to revoke and vary such Orders, and every such Order while in o])eration shall have effect as if it were part of this Act. [See for old rules m re Admiralty appejils, &c., O. in C. 11 Dec. 1865; TFeekli/ Notes, 27 Jan. 18(56, p. U.] 15. In the construction of thi** Act, unless the context interpretmion. otherwise req ires, — The expression " representative legislature " means, in relation to a British possession, a legislature comprising a legislative body of which at least ou(» half are elected by inhabitants of the British pos- session. The expression " unlimited civil jurisdiction " means civil jurisdiction unlimited as to the value of the subject-matter at issue, or as to the amount that may be claimed or recovered. The expression •' judgment " includes a decree, order, and sentence. Tile expression ** appeal " means any appeal, rehearing, or review ; and the expression " local appeal " means an appeal to any court inferior to Her Majesty in Council. a 3840, 3 L Hi >\< 898 53 & 64 VICT. c. 27.— IN FORCE FROM. [1890. Commence- snent of Act. 26 & 27 Viet, c. 24. The expression " Colonial law " means any Act, ordi. nance, or other law having the force of legislative enactment in a British possession and made by any authority, other than the Imperial Parliament or Her Majesty in Council, competent to make laws for such possession. 16. — (1.) This Act shall, save as otherwise in this Act provided, come into force in every British possession on the first day of July one thousand eight hundred and ninety-one. Provided that — («.) This Act shall not come into force in any ,)f the British possessions named in the Eirst Schedule to tliis Act iintil Her Majesty so directs l)y Order in Council, and until the day named in that behalf in such Order ; and (fi ) If before ly day above mentioned rules of court for the Colonial Court of Admiralty in anv British possession have been approved hy Her Majesty in Council, this Act may be pro- claimed in that possession by the Governor thereof, and on such proclamation shall come into force on the day named in the procla- mation. (2.) Tlie day upon which this Act comes into force in any British possession shall, as regards that British pos- session, be deemed to be tlie commencement of this Act, (3.) If, on the commencement of this Act in anj j British possession, rules of court have not been approved I by Her Majesty in pursuance of this Act, the rules in force at such commencement under the Vice- Admiralty Courts Act, 1863, and in India the rules in force at | such commencement regulating the respective Vice- Admiralty Courts or Courts of Admiralty in Inilio, including any rules made with reference to proceedings I instituted on behalf of Her Majesty's sliips, shall, so far! as applicable, have effect in the Colonial Court or Courts j of Admiralty of such possession, and in any Vice- 1891).] 53 & 54 VICT. 0. 27— COL. CT. FEES, 809 Admiralty Court established under this Act in that possession, as rules of court under this Act, and may be revoked and varied accordingly ; and all fees payable under such rules may be taken in such manner as the Colonial Court may direct, so however that the amount of each such fee shall so nearly as practicable be paid to the same officer or person who but for the passing of this Act would have been entitled to receive the same in respect of like business. So far as any such rules are inapplicable or do not extend, the rules of court for the exercise by a court of its ordinary civil jurisdiction shall have effect as rules for the exercise by the same court of the jurisdiction conferred by this Act. (4.) At any time after the passing of this Act any Colonial law may be passed, and any Vice- Admiralty Court may be established and jurisdiction vested in such Court, but any such law, establishment, or vesting shall not come into effect until the commencement of this Act. 17. On the commencement of this Act in any British Abolition of " Vice-Adniiralty possession, buu subject to the provisions of this Act, Courts. eveiy Vice- Admiralty Court in that possession shall be aboUshed ; subject as follows, — (1.) All judgments of such Vice- Admiralty Court shall be executed and may be appealed from in like manner as if this Act had not passed, and all appeals from any Vice-Admiralty Court pending at the commencement of this Act shall be heard and determined, and the judg- ment thereon executed as nearly as may be in like manner as if this Act had not passed : (2.) All proceedings pending in the Vice-Admiralty Court in any British possession at the com- mencement of this Act shall, notwithstanding the repeal of any enactment by this Act, be continued in a Colonial Court of Admiralty of the possession in manner directed by rules of court, and, so far as no such rule extends, 3 L 2 'fi: ' M'M ^ /' ;' '-1 : '■ ' ; ' , ; 1 1 ■:. ' ' ( ■ ; ■- ^ '■ ■ 'i t 1 ' ' - > ■ Ml ■ t '■ ■ 1 •) ' 1 h i " ■' • 1 • 1 ^ i ^ 1 ' 1 ■ i , i • \ 1 : 1 H 1 "^ 1 lit Ih !mj^ '•' ■' Vl- ! n i ^ ^ ^ ' i ■ . ; ; '.1 'r i ■ ; r . hi 1 '■ ■ ' \ ' ^ . :!' 1 j ,: 1 ■ ■ ! ' ■ 1, il ■ : 1 ■ \\ ' \ - ■ :^! ^-L ■ ' ■ V "- \' ; n \. • ' : ! • ^ ^ V ^ '^ ^ ' ; i iiii ;' :iirii 1H Ihi [i \ In mt 1 ail 1 900 63 & 54 VICT. c. 27.— COMPENSATION. [1890. in like manner, as nearly as may bo, as if tliey had been originally, begun in such court : (3.) Where any person holding an office, Avhothcr tliat of judge, registrar, or mor.shal, or any other office in any such Vice- Admiralty Court in a British possession, suffers any pecuniavy loss in consequence of the abolition of such court, the Government of the British possession, on complaint of such person, shall provide that such person shall receive reasonable compensa- tion (by Avay of an increase of salary or a capital sum, or otherwise) in respect of liis loss, subject nevertheless to the performance, if required by the said Government, of the like duties as before such abolition : (4.) All books, papers, documents, office furniture, and other things at the commencement of this Act belonging, or appertaining to any Vice- Admiralty Court, shall be delivercrl over to the proper officer of the Colonial Court of Ad- miralty or be otherwise dealt Avith in such manner as, subject to any directions from Her Majesty, the Governor may direct : (5.) Where, at the commencement of this Act in a British possession, any person holds a commis- sion to act as advocate in any Vice- Admiralty Court abolished by this Act, either for Her Majesty or for the Admiralty, such commission shall be of the same avail in every com't of the same British possession exercising jurisdic- tion under this Act, as if such court were the court mentioned or referred to in such com- mission. Repeal. 18. The Acts Specified in the Second Schedule to this Act shall, to the extent mentioned in the third column of that schedule, be repealed as respects any British possession as from the commencement of this Act in that possession, and as respects any courts out of Her 1890.] 53 A 54 VICT. u. 27.— REPEALS. 901 Majesty's dominions as from tho date of any Order applying this Act : Provided that— [a.) Any appeal against a judgment made before the commencement of this Act may be bron^jht and any such appeal and any proceedings or appeals pending at the commencement of tliis Act may be carried on and completed and carried into effect as if such repeal had not been enacted ; and [b.) All enactments and rules at the passing of this Act in force touching the practice, procedure, fees, costs, and returns in matters relating to the slave trade in Vice-Admiralty courts and in East African courts shall have effect as rules made in pursuance of this Act, and shall apply to Colonial Courts of Admiralty, and may be altered and revoked accordingly. SCHEDULES. I FIRST SCHEDULE. British Possessions in which Operation of Act is delated. Section lo. New South Wiiles. Victoria. St. Helena. British Hondtirafi. ' • SECOND SCHEDULE. Section 18. Enactments Repealed. Sepsion and Chapter. Title of Act. Extent of Repeal. 56 Geo. 3. c. 82. An Act to render valid the judicial Acts of Surrogates of Vice- Ad- miralty Courts abroad, during vacancies in office of Judges of such courts. The whole Act. n i-. 'I 1 V r PI ' . 1; I: ■! f !; 1 ,■ ! '. ■ Hi 602 63 it 54 VICT. c. 27.— Acts REPEALED. [i89o, Second Schedule— Enactinonts Repealed — tout. Session and Chapter. Title of Act. Extent of Report. 2&3Will.4. 0.51. 3&4Will.4. C.41. 6 & 7 Vict. c. 38. I ■ ■ I 7 & 8 Vict. 0. 69. i 'I An Act to regiilute the practice and the fees in the Vice-Admiralty Courts abroad, and to obviate doubts ns to their jurisdiction. An Act for the better ad- ministration of justice in His Majesty's Privy Council. An Act to make further rejyulations for facili- tating the hearing ap- peals and other matters by the Judicial Com- mittee of the Privy Council. The whole Act. An Act for amending an Act passed in the fourth year of the reign of His late Majesty, intituled, " An Act for the bet- " ter administration of " justice in His Ma- " jesty's Privy Coun- " oil," and to extend its jurisidiction and powers, Section two, In .section two, the wonls " or from any .\ilniii'- " alty or Vicc-Adniir- " alty Court," anil tlie words "or the Lmls " Couiuiis.'iioiiprs nf " Appeals in prize " causes or their siir- " rogutes." In section tiirei', the words " and tho lli|rh " Court (if Admiralty " of England," and tlie words " and fi'oin any " Admiralty or Vice- " Admiralty Court." In section live, from the first " the High Court " of A(lniiralty,"tolhe end of the section. In section seven, tlie words "and from Ail- " miralty or Vice-Ad- " miralty Courts," Sections nine and ten, so far as relates to maritnue causes. In section twelve, the words " or maritime." In section fifteen, the words "and Admiralty and Vice-Admiralty.'' In section twelve, the words " and from Ad- " miralty and Vice- " Admiralty Courts," and so much of the rest of the section as relates to uiaritiiue csiuses. n [jff fiET). [1890. Jxtent of Ri'port. whole Act. iou two. ec'tion two, thowonb or from iniy Admir- ttlty or Vici'-Adiiiir- alty Court," and the rords "or the Lrrds ' CouiinissioiiPi's nt ' Apiiculs in prize ' causes or their sur- ' rogatt'S." section tliret', tlie Yords " and tho Hijjii ' Court of Admiralty ' of England," and tlie ivords " and from iiiiy « AdniiraUy or Vice- ' AdmiraUy Court." section live, from tlie [irst " the High Camt " of A years, and the interest 30 added in each year shall be deemed thereafter to form part of the advance, but to be in addition to the maximum advanc(! authorised by this Act. 3^ — (1.) The said loan shall be advanced in instalments of not more Conditions of than fifty thousand pounds each. advance. (2.) Before advancing the first instalment the Treasmy .shall he satis- tied, by such evidence as they require, that suitable arrangements are made for the said purpose. (3.) Before advancing any instalments after the first the Treasury shall be siitisfied by such evidence as they require that the i)rior instal- ment or instalments have been duly expended for the said purpose, and that suitable arrangements have been made or are continued for the said purpose. (4.) An advance in pursuance of this Act shall not be made until the Government of the Pronnce of British Columbia has deposited in such manner as the Treasury require such number of the «lebentures herein- after mentioned as in nominal amount are eqnid to the amount of the advance, inclusive of any interest which is likely to be added to the iidvance. (5.) The del)ent»n'es shall ho del»entures of the said Go\ernment issued in pursuance of Act numl)er sixty-one of 1892 passed by the Legislative Assembly of the said Province, or of an Act to be hereafter passed by the said Legislative Assembly, and shall bear interest at the rate of three lier cent, per atmuni, and have coupons atttiched for such interest for not le:.-ithan thirty years: Provided that the Treasury shall not dispose of Huy such debenture or coupon otherwise than by returning the same to the said Governuient until default is made in payment of any principal or interest for the time being due from that Government in respect of the advance. i ! 908 Law of the Province not to impair validity of charge. Issue and raising of advances and application of sums repaid. ^ ; Extension of 29 & 30 Vict. e. 26. to bonds. Count of advances. 65 & 56 VICT. c. 35.— COL. STOCK. V^n^. (6.) If it appears to the Treasury that the purposes of this Act have been abandoned before the whole of an advance or any part thereof has been expended, they may require the Government of the Province to repay the amount not so expended, and that Government shall repay the same. 4. Every Act hereafter passed by the Legislature of the Province of British Columbia which in any way impairs the validity or prioritv of the charge upon the revenues of the Province of the principal or interest of any advance made or debenture deposited in pursuance of this Act shall so far as it impairs such validity or priority, be void unleds the previous consent of the Treasury has been obtained. 5. — (1) Every advance under this Act shall be charged on and issued out of the Consolidated Fund of the United Kingdom or the growing produce thereof. (2.) For the purpose of borrowing the amount of the advance, or money to repay to the Consolidated Fund the advance, or of paying olf any money borrowed or security issued under this section, the Treasury may, if they think fit, issue exchequer bonds, or exchequer bills, or treasury bills, or otherwise borrow on the credit of the charge created by this Act on the Consolidated Fund, or do all of such things, and the sum arising from such issue or borrowing shall be paid into the Ex- chequer. (3.) The principal and interest of all securities issued or suras hor- rowed under this section shall be charged upon and issued out of the Consolidated Fund of the United Kingdom or out of the growing produce thereof. (4.) Every exchequer bond issued in pursuance of this Act shall be for a sum of not less than one hundred pounds, and shall provide for the paying off of such bond at par at any period not exceeding five years nor less than twelve months from the date of such bond. (5.) All sums paid by the Government of the Province in respect of the principal of or intertst on any advance under this Act, and all sums arising from the disposal of any debentures deposited in pursuance of this Act or of the coupons thereof shall be paid into the Exchequev. 6. Section fifteen of the Fxcheqtier Bills and Bonds Act, 1866 (which section relates to the forgery ol" exchequer bills) shall apply to all exchequer bonds issued in pursuance of this Act in like manner as if it were herein enacted with the substitution of exchequer bond for ex- chequer bill. 7. An account of all sums issued out of the Consolidated Fund in pursuance of this Act, and of all sums paid by the Government of the Province of British Columbia in respect of the interest or principal of any advance in pursuance of this Act, shall be annually laid before Parliament in such form as the Treasury direct, so long as any such advance remains outstanding. 55 & 56 VICT. (1892) c. 36. An Act to amend the Colonial Stock Act, 1877, so far as regards the mode of transfer of Stock to which that Act applies. [21 th June 1892.] E it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, aud B 1892.] 55 & 56 VICT. c. 3d.— STOCK TRANSFERRED. 909 Commons, in tliis present Parliament assembled, and by the authority of the same, as follows : 1, '•"liis Act may be cited as the Colonial Stock Act, 1892, and this Short title. Act and the Colonial Stock Act, 1877, may be cited together as the 40 & 41 Vict. Colonial Stock Acts, 1877 and 1892. *=• ^^• 2. — (I.) Any stock issued after the passing of this Act to which the Amendment of Colonial Stock Act, 1877, applies may, if so provided by regulations 4o & 41 Vict, under section sixteen of that Act (which regulations the registrar is ''• ^^- "* hereby authorised to make), be transferred by (leed according to the form ortmnsf^^o/ in the schedule to this Act, or to the like effect, and such deed, when stock, duly executed by all parties, shall be delivered to the registrar and kept bv iiim, and a memorial thereof shall be entered in the register. (2.) On demand of the holder of any stock transferable by d'-ed the registrar shall cause a certificate of the proprietorship thereof to be delivered to each holder, and such certificate shall be prima facie evi- dence of the title of the holder to the stock therein specified ; neverthe- less the want of such certificate shall not prevent the holder of any stock from disposing thereof. (3.) Where stock of a colony has been issued before the passing of this Act, and the regulations for the transfer of such stock provide for its transfer in like manner as is authorised by this Act, the Government of the colony, if desirous that the Colonial Stock Act, 1877, as amended by this Act, should ajjply to the said stock, may, by declaration made, deposited, and recorded in like manner as a declaration adopting that Act, declare such desire, and identify the stock with reference to which the declaration is made and thereupon this Act shall apply as if it had been enacted before the issue of the stock and the said regulations had been made in pursuance of section sixteen of the Colonial Stock Act, 1877. (4.) Section nineteen of the Colonial Stock Act, 1877, shall not apply to any stock in I'espect to which the provisions of that section have not been ol)served before the passing of that Act. (5.) A declaration under this Act may be made whether there has or has not been a prior declaration applying to the stock the Colonial Stock Act, 1877. 3. This Act shall apply to the Isle of Man in like manner as if section Application of six of tlie Isle of Man Loans Act, 1880, referred to the Colonial Stock Act to Isle of Act, 1877, as amended by this Act, and that section shall be deemed to ^g ^" . , y. have authorised the Government of the Isle of Man to provide for the ^ 3^ transfer of stock in manner provided by this Act, lii I, or we, SCHEDULE. \^Here identify $tock.'\ Stock Seller. of in consideration of the sum of £ paid by being the consideration money for pounds stock Money, do hereby transfer the said stock [together with the ii:tere.st accrued thereon since the last half-yearly payment of such interest] to the said transferee. And the said transferee hereby accepts the transfer of the same Buyer, subject to the conditions on which the transferor held the same. ! ifi ,■ I a n I I :. I lltfl !' }' i I I 1 f !i II \ 910 57 VICT, c, 2.— BEHEING ACT. [IK!)4. Witnes.s our hnnds and .seals this day of eight hundred and ninety Signed, sealed, and delivered hy the above-named in the presence oF Signature of ]^ witness - j Aildress OIli' tlliiils: mil Occupation Signed, sealed, and delivered by the above-named in the presence of Signature of witness Address Occupation_ 67 VICT. (1894) c. 2. Behring Sea Award Act. An Act to provide for carrying into eftect the Award of tlie Tribunal of Arbitration cou- stituted under a Treaty between Her Majesty the Queen and the United SMcs of America. [23rd April 1894. WHEREAS by a treaty between Her :Majo.sty the Queen and the Government of the rniled States of America various questions which had arisen respecting the taking and preservation of the fiu* seal in the North Pacific were referred to Arbitrators as men- tioned in the treaty : And whereas the award of such arbitrators (in tliis Act referred to as the Behring Sea Arbitration A\\m\) dated the fifteenth day of August one thousand eiglit hundred and ninety-three, contained the provisions set out in the First Schedule to this Act ; and it is ex- pedient to provide for carrying the same into effect : !" ' f ' in IT 1894.] 57 VICT. c. 2.— ACT KEPT ALIVE. 011 Be it therefore enacted, by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. — (1.) The provisions of the Behring Sea Arbitra- Enaetmentof tlon Award set out in the First Schedule to this Act arbitrators* shall have effect as if those provisions (in this Act re- s.,ectlng°the fei'i'cd to as the scheduled provisions) were enacted by this ''^^ '*'"'■ Act, and the acts directed by Articles one and two there- of to be forbidden were expressly forbidden by this Act. (2.) If there is any contravention of this Act, any person committing, procuring, aiding, or abetting such contravention shall be guilty of a misdemeanor within the meaning of the Merchant Shijiping ^Lct, 1854 (^), and n & is vict. the ship employed in such contravention and her equip- ment, and everything on board thereof, shall be liable to he forfeited to Her Majesty as if an offence had been committed under section one hundred and three (^) of the said Act ; Provided that the court, without prejudice to any other power, may release the ship, equipment, or thing, on payment of a fine not exceeding five hundred pounds. (3.) The provisions of the Merchant Shipping Act, 1851, with respect to official logs(*) (including the penal provisions) shall apply to every vessel engaged in fur seal fishing. (4.) Every person who forges or fraudulently alters any hcence or other document issued for the purpose of Article four or of Article seven in the First Schedule to this Act, or who procures any such licence or document to be forged or fraudulently altered, or who knowing any such licence or document to be forged or fraudu- lently altered uses the same, or who aids in forging or fraudulently altering any such licence or document, (') So far as necessary the Act of 1854 is kept alive by s. 74.5 (/) of 67 & 58 Vict, c. 60. (') See sees. 69 to 71 ; 67 (2) & 76 of 67 & 68 Vict. c. 60. (') .Ss. 280 & 284 uf ubove cited Act, ami nee ss. 239, 2U of J7 & 58 \'iet. c. 60. ! ! ! i; lllil ' I [1 ¥\i\ 11 912 17 & 18 Vict. c. 104. 39 & 40 Viet, e. 80. 11 Provision as to ship's papers. I Orders in Council. 57 VICT. c. 2.— SEIZURE OF SHIP. [1894. shall bo guilty of a misdemeanor within the moaning of the Merchant Shipping Act, 1854, (5.) Subject to this Act, the provisions of sections one hundred and threo(') and one hundred and four and Part Teni^) of the Merchant Shipping Act, 1851<, and of section thirty-i'our('') of tlie Merchant Ship])ing Act, 1 87(5, which are set out in the Second Schedule to this Act, shall apply as if they were heroin re-enacted, and in terms made applicable to an offence and forfeiture under this Act ; and any commissioned officer on full pay in the naval service of Her Majesty the Queen may seize the ship's certificate of registry. 2. — (1.) Where an officer seizes, under this Act, a ship's certificate of registry, he shall either retain the certificate and give a provisional certificate in lieu thereof, or return the certificate with an indorsement of the grounds on Avhich it was seized, and in either case shall direct the ship, by an at lition to the provisional certificate or to the indorsement, to proceed forthwith to a sj)ecified port, being a port where there is a British court having authority to adjudicate in the matter, and if this direction is not complied with, the owner and master of the ship shall, without prejudice to any other liability, each be liable to a fine not exceedinj? one hundred pounds. (2.) Where in pursuance of this section a provisional certificate is given to a ship, or the sliij)'s certiticato is indorsed, any officer of customs in Her Majesty's dominions or British consular officer may detain the ship until satisfactory security is given for her appear- ance in any legal proceedings • ''ulj may he taken against her in pursuance of tlii;^ • 3. — (1) Her Majesty the 0; a in Council may make, revoke, and alter orders for carrying into effect the scheduled provisions, and this Act, and every such (') S. 76 of 57 & 58 Vict. e. 60. (-') Part 13 ibid. (») S. 692 ihid. tiP- [1894. he mpaning of ins of s(^ctions (I and four and :t, 1851, and of l)in;jfActJ87(), lo to this Act, macted, and in brfeitui'e under on full pay in leen may seize ler tins Act, a thor retain the ificato in lieu indorsement of . in cither case the provisional ;ed forthwith to sre is a British ;he matter, and the owner and ce to any other exceedini? one on a i)rovisioiial )'s certiticate is Her Majesty's may detain the for her appear- may bo taken 1 CoiDicil mav ying into effect and every such 1H94.] 57 VICT, c, 2.— U.S. & BRIT. SUBJECTS. 913 Order shall bo forthwith laid before both Houses of Parliament and published in the London Gazette, and shall have effect as if enacted in this Act. (2.) If there is any contravention of any regulation made by any such Order, any person committing, procm-ing, aiding, or abetting such contravention shall he liable to a penalty not exceeding one hundred pounds. (;}.) An Order in Council und(n* this Act may provide, that such officers of the United States of America as are specified in tlic Order may, in rc^spect of offences under this Act, exercise tlio like powers under this Act as may be exercised by a commissioned officer of Her llajcsty in relation to a British ship, and the equipment and certificate thereof, or such of those powers as appear to Her Majesty in Council to be exerciseablc under the law of the United States of America against \ hips of the United States; and that such British officers as are specified in the Order may exercise the powers conferred by this Act, with any lecessary modifications speci- fied in the Order, in relation to a ship of the United Stoles of America, and the equipment and certificate thereof. 4.— (1.) Where any offence under this Act has been Liability of committed by some person l)elonging to a sliip, or by inuiishmcnt. means of a ship, or the equipment of a ship, tlie master of the ship shall be deemed guilty of such offence, and the ship and lier eqviipment shall be liable to forfeiture under this Act ; (2.) Provided that if it is proved that the master issued proper orders for the observance, and used due diligence to enforce the observance of this Act, and the regulations in force thereunder, and that the offence in question was actually committed by some other person without his connivance, and that the actual offender lias been convicted, or that he has taken all proper means in his power to prosecute such offender, if alive, to con- viction, the master or the ship shall not be liable to any M i ■ ii It S 2340. 3 M ll QSCSnii'' L'SilSiSTI '-• I i: !.lil ' r W. I-: i 5 I ; Dt'fliiilioiiH, Short title. Commence- ment of Act. Duration of Act. 914 67 VICT. c. 2.— DURATION OF ACT. [1894. penalty or forfeiture other than such sum as will pvoA-ont any profit accruing by reason of the offence to the master or crew or owner of the ship. 5. The expression ** equipment" in this Act incliulcs any hoat, tackle, fishinsf or shooting instrumtMits, aiid other things belonging to a ship. 6. This Act may he citetl as the Behring Sea Award Act, 1894. 7. — (1.) This Act shall come into operation on tlie first (lay of May one thousand eight hundred and ninety- four, provided that Her Majesty in Council, if at aiiv time it appears expedient so to do, having regard to the circumstances Avliich have then arisen in relation to the scheduled provisions or to the enforcement thereof, may suspend the operation of this Act or any part thereof during the period mentioned in the Order, and the .same shall he suspended accordingly. (2.) "Where on any proceeding in any court against a person or ship in respect of any offence under thi.s Act it is proved that the ship sailed from its port of de. parture before the provisions of the award mentioned in the First Schedule to this Act Avere knoMii there, and that such person or the master of the ship did not, after such sailing and before the alleged offence, become aware of those provisions, such person shall l)o acquitted, and the ship shall l)e released and not for- 8. This Act shall remain in force so long as the scheduled provisions remain in force and no longer ; Provided that if by agreement between Her Majesty the Queen and the Government of the Vnited States of America, the scheduled provisions are modifiod, then Her Majesty in Council may order that this Act shall, rl!! l^nW ' I'ing Soa Award 'ce so long as force and no 18^t,] 57 VICT. c. 2.— LICENCE TO KILL SEALS. 915 subject to any modifications specified in tho order, apply, and the same shall accordingly apply, to the modified provisions in like manner as if they were set out in the First Schedule to this Act. SCHEDULES. FIRST SCHEDULE. Provisions in AwAitn of tlio TninnxAL of AnniTRATiON constitiitPd imdor till' Troaty coiicliKlcd nt Washingfon on flio 20th of Fi'bniiiry 1802, iM'tsvoon Hkr Ma.iksty thk (^rnKx and the rMTKn States of America. And wlioroas the aforesaid doterinination of the foregoing qnestlons ss to the exchi.sive jurisdiction of the United States mentioned in .illicit' VI. leaves' the subject in such a position that the concurrence of (rrffl< Britain is necessary to the esUiblishnient of Regulations for the proper protection and preservation of the fur-seal in or habitually n'sortiiig to the Behring Sea, the Tribunal having decided by a majority ;i< to ciidi Article of the following Reguhitions, we, the said Baron de Couiwi, Loi'd Hannen, Marqtiis Viseonti Venosta, and Mi". (Iregers (iniiii, assenting to the whole of tht; nine Articles of the following Regii- liitioiis, iiud being a majority of the said arbitrators, do decide and iletM'iniiie, in the mode provided by the Tr(>aty that tlu> following con- imrent Kegulations outside the jurisdictional limits of the respective Govcrnnionts are necessiu'y, and that they should extend over tlie waters liPivin-nftcr mentioned ; that is to SJiy : — Article I. The Governments of the United States and of Great 5/iVfli« shall forbid their citizens and subjects respect i\ely to kill, eapturo, or pursue at any time and in any manner whatever, the aiiinmls coinmonly called fur-seals, within a zone of GO miles around \h Pribilqff' Islands, inclusive of the territorial waters. The miles mentioned in the preceding paragraph are geographical uiilps, of GO to a degree of latitude. Article 2. The two Governments shall forbid their citizens and sub- jects respectively to kill, capture, or pursue, in any manner whatever, iliiring the season extending each year from the 1st May to the 31st July, l)oth inclusive, the fur-seals on the high sea in the part of the Pacilie Ocean, inclusive of the Behring Sea, which is situated to the noi'tli of the 35th degree of north latitude, and eastward of the 180th ilegree of longitude from Greenwich till it strikes the water boundaiy ilescribed in Article I. of the Treaty of 1867 between the United States anil Russia, and following that line up to Behring Straits. Article 3. During the period of time and in the waters in which the fur-seal fishing is allowed, only sailing vessels shall be permitted to rarry on or take part in fur-seal lishing operations. They will, liowevcr, he at liberty to avail themselves of the use of such canoes or undecked boats, propelled by paddles, oars, or sails, as are in common use as fishing boats. 3 M 2 ^ i Ji ' . nl'^Kj^u^', ■• i ! *i 1 . ii J if •' f ■■ i f ill 916 01 VICT. c. 2.— EXEMPTION. [ism. Article 4. Eiit'li snilinj^ vcssol anthorisod to fish for fiir-scnls must lie provided with a si)ocial liconco is.siiod for that purpose hy its Government, and shall !« required to carry a distinguishing flag to Ik; [jrcscrihed liv its Government. Article 5. The ninstors of the vessels engaged in fnr-senl fishing sluill enter accurately in their oflRcial log-book the date and place of each fm- seal fishing operation, and also the nundKT and sex of the seals cnptuivil upon each day. These entries shall be commnnicate himself aggrieved by such conviction may ap[ieal to llii' ir\I court of general or ijuarter sessions : (."),) All oft'ences under this Act shall in any Uritisli posse^^iun lo punishable in any court or by any justice of the jiwiul' di magistrate in v hich or by whom olfences of a like I'lmiailn are ordinarily punishable, or in such other mauiier, or liy mrIi other courts, justices, or magistrates, as may from time lutiiue be di't«'rmiued by any Act or Ordinance duly iiiiidi' in muIi possession in such manner as Acts and Ordiiuuices in siiili |iossession are reipiircd to lie made in oriler to lia\e tliu force of Idw. Section 519.(1) Any stijicudiary magistrate shall have full power to do alone wliatevn' two justices of the peace are by this Act authorized to do. Section 520. (-) For the purpose of giving jurisdiction under this Act, vwvs offimi' shall be deemed to have been committed, and every cause of couiplaiul (') See sec. 681, 67 & 58 Vict. c. 60. («) Sec. 684, ibid. 1H91.J ■)7 VICT, f. 2.-l'ENALTlE.S. 910 inlmvi- nriw'ii, cither in (lie pliici" in wliifli llir .siinic Hctimlly \vii> <'(iin- luillcd or lU'osc, or in uuy [>Unjv in wliifh the oflViulLT or ^ii'ison t'oun>lttiui'il flgiiiiist uiity 1k'. Skction olil.(') in all ciisfs wliPiX' any dintrii't witiiin which iiny court or justice ol' liie Jurisdiction IKiice or other niH};i,stratt' has jurisdiction, citliur under this Act or under ''\'^f„^''j|'^ II nv l)-ing utt tlio ly oilier Act or at common law, for any purpose whatever, is situate on • , IlicmiHt of any sea, or ahutting on or projectinj^ into any Imy, channel, lake, river, or other na\i};al)lc wat<'r, every such eouit, justice of the |«i('(', or natgistrate .shall have jurisdiction over any ship or hoat heiuj; on or lyinj; or |Mis.sin^ olf siicli coast, or heinj; in o.' near sue h liay, (liiiniit'l, lake, I'iver, or navi;^al»le watei' as aforesaid, and over all persons nil iiuiad such ship or lioator for the time heinj^ l»elon;;inj; thereto, in the siiiii' manner as if such shi|), boat, or ixnsons wtie within the limits of liio original jurisdiction of such court, justice, or niaj,'istratc. Ski'Tion 522. (-) Sirvice of any summons or otluT nniller in any le^al procet'din}^ undei' lliiiAi't shall he good service, if nnule personally on the person 'o Ik; HTvwl, or at his lust place of aboiirt, justice, or justices of the peace, or other f^mns (U'dert'd iiinnistrate, has or ha\c ]>o\ver to make an older directing i)aynu'nt to be !" '."'. l'"'.'' iiiiiilcol' any seanuiii's wages, penalties, or othei- sums of money, then, if I 111' party ^o directed to [)ay the same is the master or owner of a ship, and llic sauie is not paid at the time and in manner prescribed in the order, the loiirt, justice, or justices, or other magistrate, who made the order, may, iiimidition to any other powers they or he may have for the pur|)ose of louiiM'lliug payment, direct the amount remaining un[)aid to be levied In- ilirfroHs or poinding and sale of the said .ship, her tackle, fiuniture, anil .iiprel. Section 524. (') Any court, justice, or magistrate inijjosing any penalty under this Act, •M^p'^at'on of for which no specific application is herein provided, may, if it or he 1'^"^""^'- tbinks fit, direct the whole or any pait thereof to he ajjplied in couipcn- sating any person for any wrong or (hunage which he may have sustained by the act or default in respect of which suelr penalty is imposed, or to If applied in or towards payment of the expenses of tlie procecilings ; and, subject to such directions or specific application as aforesaid, all penalties recovered in the United Kingdom shall be paid into the receipt of Her Majesty's Exchequer in such manner as the Treasury may direct, and shall be carried to and form part of the Consolidated Fund of the (') Sue. 685, 67 & »58 Viet. c. GO. (») Sec. 696 (h), ibid. (3) Sec. 693, ibid. (*) Sec. 699, ibid. '{ : i li 1 n 920 57 VICT. c. 2.— EVIDENCE. [1894. Unitt'd Kiiip;(loiii ; ami all iK-imltics iveoviTi'd in any ]Jrilisli posM'ssiim shall 1)0 paid ovit into tlie public treasury of such possession, ami foim part of the public revenue thereof. f : m\ Section 525.C) Limitation of The time for instituting summary proceedings under this Act sliiili lie time ill sum- limited as follows; (that is to say,) mary procced- iiigs. (1.) No conviction for any offence sliall be made under this Act iiuinv summary proceeding instituted in the United Kingdom, uiilos such proceeding is commenced within si.\ montiis iiftcr tin' commission of the offence ; or, if both or either of the imrtics to such jHocccding happen during such time to bo out of tliu United Kingdom, unless tlic same is conmieneed witiiiii two months after they both first hapiien to r.iii.e or to be I'.t one time within the .same : (2.) No conviction for any offence shall be uuule under this Act in am proceeding instituted in any British possession, unless siuii proceeding is commenced witliin six months after the com- mission of the offence ; or if both or either of tlie parties tu the proceeding happen during such time not to bt; within tlif jurisdiction of any court capable of dealing with the ease, unless the .same is eounnenced within two months after they both tirst ha[)pen to arrive or to bo at one time within sucii juris diction : (.'3.) No order for the payment of money sliall be Miade under this Ait in any sunmiary proceeding instituted in the United Kin;;(loiii, tinlosssuch proceeding is eounnenced within six nioiitlisiirteitk' cause of complaint ari.ses ; or, if both or either of the imitiis happen during such time to be out of tlic United Kiiigiioiii, unless the siime is commenced within six months after tliiv both first happen to arrive or to be at one tiuii' within tlic same : (4.^ No order for the payment of money shall be made under this Act in any summary proceeding instituted in any British possession, unless such proceethng is commenced within six iiioiitlis iiild- the cause of complaint arises; or, if both or either of tlie]iintii> to the proceeding liappen during such time not to he witliiii the jurisdiction of any court capable of dealing with the him, unless the same is commenced within six mouths after tiny Ijoth first happen to arrive or be at one time withiu such jurisdiction. And uo provision contained in any other Act or Acts, Onliminee ur Ordinances for limiting the time withiu which summary proeeeiiiiig« may be instituted shall affect any summary proceeding under this Act. Section 526. (-) Document Any document required by this Act to be executed in tlio pieseiKcdt proved witiiout or to be attested by any witness or witnesses, may be pro\e(l hy ihc calling attest* ing witness. (<) Pec. 683, 67 & 68 Vict. c. CO. («) Sec. 694, ibid. iilor this Act sliall lie 1894.] 57 VICT. c. 2.— DETAINING SHIP. 921 Power of judge of court of record or Adniimlty to urrt'st forci(i;n ship tluit has occasioned damage. evidence of any person who is able to boar witness to the reqnisite facts, without calling the attesting witness or witnesses or any of them. Section 527.(1) Whenever any injury has, in any part of the world, been euuscd to iinv property l)elongiii<; to Her Majesty or to any of Her Majesty's sub- jects by any foreign ship, if at any time thereafter such ship is found in any port or river of the United King, and to 1)0 hnal. ^jytTees, and sentences .so pronounced shall l)e final and conclusive, ami not subject to suspension, advocation, reduction, or to any form of ivvicw or slay of execution, except on the giound of corruptioi or miilirc on tue part of the sheriff or justices, in which casi* the suspension, iiiKota- tlon, or reduction must he brought within fourteen days of the date ol (') .Sc 708, 57 & ySVict. c. 60. (») .Sc 706, ihul. (•') vc. 703, ihid. I I ' M I P fl| mfj \m.] 57 & 58 VICT. c. 30.— DETENTION OF SHIP. 925 the order, flecroo, or sontence cnmplnined of: Provided nlways, that no stnyof execution .shall bo competent to the ofToctof preventing immediate execution of sneli order, decree, or sentence. Section 543. (i) Such of the general provisions with respect to jurisdiction, procedure Gencrnl rules, and ptMialties contained in this Act as are not inconsistent with the **" ^'"' "" »ri''i- ^necial rules herein-beforo laid down for the conduct of legal ijroceedings f ' '? .'"'"'''"' and tnc recovery oi penalties in ScottniKl, shall, so tar as the same are and proeicilings applicable, extend to such last-mentioned proceedings and penalties : in Scntlaml. Provided always, that nothing in this Act contained shall be held in any way to annul or restrict the common law of Scotland with regard to the prosecution or puni.shment of offences at the instance or by the direction of tlie Lord Advocate, or the rights of owners or creditors in regard to onforeing a judicial .sjile of any ship and tackle, or to give to the High Court of Admiralty of England any jurisdiction in respect of salvage in Scotland which it ha.s not heretofore had or exercised. ENACTMENT OP MERCHANT SHIPPING ACT, 1876 (39 & 40 Vict. c. 80.), APPLIED. [Note. — The whole Act v/as repealed by Merchant Shipping Act, passetl 2') Aug. 1894, 57 & 58 Vict. e. (iO. ; but nothing in that Act was to affect the Behring Sea Award Act : sec. 745 (./')]. Section 34.(2) Where under the Merchant Shipping Acts, 1854 to 187G, or any of Enforiing' them, a ship is authorized or ordered to l)e detained, any commissioned ^1*;^^"'"*" " nflieer on full pay in the naval or militnry service of Her Majesty, or any officer of the Board of Trade or Customs, or any British consular oflieer may detain the .ship, and if the shij) after such detention or after service on the master of any notice of or order for such detention proceeds to sen before it is relea,sed by compt'tent authority, the master of the ship, and also the owner, anil any i)erson who sends the ship to sea, if siuli owner or person be party or privy to the offence, shall forfeit and jMiy to Her Majesty a penalty not exceeding one hundred pounds. Where n ship so proceeding to sea takes to sea when on board thereof in the execution of his duty any officer authorized to det4iin the ship, or any surveyor or officer of the Board of Trade or Customs, the owiicr and master of the si.^) shall each be liable to pay all expenses of and incidental to the officer or surveyor being so taken to sea, and also a l)ennlty not exceeding one hundred pounds, or, if the offence is not prosecuted in a summary manner, not exceeding ten pounds for every (lay until the officer or surveyor returns, or until such time as would enable him after leaving the ship to return to the i)ort from which lie is taken, and such expenses may lie recovered in like manner as the penalty. I{; .ship. (•) Sec. 710, 67 & 58 Vict. e. 60. (») Sec. 692, ibid. i fi i':|i 926 57 & 58 VICT. 0. .19.— PRIZE COURTS. [1894. ! t Exception as to property in Briti.sh possessions, 67 & 58 VICT. (1891) c. 30. THE FINANCE ACT. [Slst July 1891.] British Possessions. 20.- — ('•) Wlicro the commissioners are satisfied that in a Rrjtisli possession to which thi.s section applies, dnty is payable by rciison of a death in i-espeet of any property situate in such possession, and passin" on such death, they shall allow a sum equal to the amount of flmt duty to b(! deducted from the estate duty payable in respect of that propeitv on the same death. (2.) Nothing in this Act .shall be held to create a charge for estate duty on any property situate in a British possession, while so situate or to authorize the commissioners to take any proceedings in a Brltisii possession for the recovery of any estate duty. (3.) Her Majesty the Queen may, by Order in Council, apply this .section to any Briti.sh possession where IFer Majesty is .satisfied tJiat, by the law of such jjos.session, either no duty is leviable in respect of property situate in the Unitetl Kingdom when passing on death, or tiiat the law of such possession as respects any duty so leviable is to the like effect as the foregoing pro\ isions of this section. (1.) Her Majesty in Council may revoke any such order, where it api^ears that the law of the British possession has been so altered that it would not authorize the making of an order under this section. Stc L.R. Dig. 1891-5, 255. 67 & 68 VICT. (1894) c. 39. An Act to make further provision for the estahlisli- raent of Prize Courts, and for other purpo.scs con- nected therewith. [17^// Aug. 1891] BE it enacted by the Queen's most Excellent Majesty, by and with the advice an a British ship tinless owned Qualifteation wholly by persons of the following description : for owning («.) Natural-born British subjects : ^'■"'^'•» "•"P'*- ' [Proposed by Bill in 1896 to be amended by applying to all contracts made for the carriage of animals by sea, sect. 7 of the Railway Canal TrafBc Regulation Act 1854, 17 & 18 Vict. c. 81. " . n^nm nil ! t l! ! |:| m • ■ ' B !: ' I " ■' !| '; I : ■ '• t i( ii 1 H !! rl \ ■ I i:Hll 928 57 & o8 VICT. p. 60.— REGISTRATION. [i89i. »• (6.) Persons naturnlizou by or in pnrsuancn of nn Act of Pniliamcnt of tho United Kinj^doni, or hy or in pnrsunnce of an Act or ordinance of the proper legislative antliority in a Briti.sli pos- session : (c.) Persons made denizens by letters of denization ; and (ir principal place of business in those dominions : Provided that any person who either — (i) being a natural-born British subject has taken the ofttli of allegiance to a foreign sovereign or state or has othorwisi' become a citizen or subject of a foreign state ; or (ii) has been naturalized or nimle a denizen as aforesaid ; shall not be (pialified to be owner of a British ship unless, after tnklii" the said oath, or becoming a citizen or subject of a foreign state, or on or after being naturalized or made denizen as aforesaid, he has takon tlic oath of allegiance to Her Majesty the Queen, and is during tlio tinio lio is owner of the ship either resident in Her Majesty's dominions, or partner in a firm actually carrying on business in Her Majesty's dominions. 2, 3. Every Briti.sh shi[) nuist be registered (except exonipted), otherwise not recognised as a British ship, and nuiy be detained until certificate of registration is produced. The exempted ships were .ships of 15 tons employed solely on rivers or coasc of the United Kingdom or on the rivers or coasts of some British possession within wliidi tlic managing owners are resident, and (2) ships not exceeding 30 tons and not having a whole deck, and employe(l solely in fishing and trading coastwist' on the shores of Newfoundland or adjacent parts, or in the Gulf of Si. Lawrence or adjacent coasts of Canada. 17 & IH Vict. c. 104, s. 19. 4. The procedui-e for regi.stration is given. This Sec. provi situate, or any officer appointed for the purpose by the Governor." (G.) At a port of registry establi.>-hed by Order in Council persons of tho descrip- tion declared by the order. (2.) " Notwithstanding anything in this section Her Majesty may by Order in Council declare with respect to any British possession named in the Order, not being the Channel Islands or the Isle of Mnn, tliedeserip- tion of persons who are to be registrars of British .ships in tinit possession." A registrar is not to be liable for any damages unless he is in wilful default. 5. A register book is to be kept. The ship shall be divided into 64 shares : and not more than 61 individuals shall be entitled to be regis- tered except where the Act provides for joint owners or owners h\ transmission : that this rule was not to affect the beneficial title of any number of persons or of any company claiming through any registered or joint owner. No one can lie registered as owner of a fractional part of a .share, but any number of persons up to five may lie registered as joint owners of a ship or of any share or shares therein. Joint owners arc to be considered as constituting one iierson only as regards registration, and cannot dispose in severalty of any interest in a ship, or in any share therein. A corporation may be registered as owner in its;corponite name. 1894.] «7 & 58 VIOT. c. 60.— CERT. OF REGISTER. 929 6. Every British ship shall before registry, be surveyed by a surveyor of ship.s and her tonnage iiscertained. For above, see 17 nand where the ship was built, &e. : the master's name : the niunlKn of .-hares hililbv him or tiie corporation : and a declarutiou that to the best of his belief no unqualified person or body of persons is entitled as owner to any legal or beneficial right therein. 17 & 18 Vict. c. 104. s. 38. 10. On the first registry, the following evidence is to be produced : — If a British-built ship, a builder's certificate containing a true account of the proper denomination and tonnage as estimated by him, and where and on whose account .she was built; ;.nd if there has been any sale, the bill of sale. In the case of a foreign-built shij), the above [larticulars so far as known. If a condemned ship, an ollicial copy of the condemnation. And if a person in granting a builder's certificate wilfully nmkesa false statement he is liable to a penalty up to 100/. 17 & 18 Vict. c. 104. ss. 10, -41. 11. All the above evidence is to be entered in the register book. 17 & 18 Vict. c. 104. s. 42. 12. On the registry of a ship, the registrar is to retain the sur- veyor's certificate, the builder's certificate, any bill of sale previously umde, the copv of the condemnation (if any), and all declarations of owuership. 17 & 18 Vict. c. 104. s. (>]. 13. The port at which a British ship is registered for the time being shall be deemed her port of registry and to which she belongs. 14. On completion of registration the registrar is to giant a certificate of rejiistry, comprising the entries on the register and the name of the master. 15. The certificate of register is to be used only for the lawful navigation of the ship, and is not to be sid)ject to detention by reason of any title, lien, charge, or interest whate\ei'. (2) If any person, whether interested in the ship or not, refu.ies to deliver up the certificate to the person entitled to its custody for the lawfid navigation of the ship or to any registrar, officer of customs, or oilier person entitled by law to require such delivery, any justice or any co\ut capable of taknig cognizance of the matter may summon such" person, and unless he .shows there was reasonable cause for such refusal the offender shall be liable to a fine not exceeding 100/. (3) Or if the person so refusing absconds or persists in his refnsal to give up the certificate, the justice or the court shall certify the fact, and proceedings may then be tnken ns, for a certificate mislaid, lost, or destroyed, 17 & 18 Vict. c. 104. ss. 50, 51. S 2340. 3n ' 'n 'i i m ; i ' ft .4 i ( I 930 57 & 68 VICT. c. 60.— TRANS. OF PROPERTY. [IHS)|. 16. A penalty is iinposeil on wrongful use of the eertificiitc. 1" ,t 1m Vict. V. 104. s. 52. 17, 18. Powers nre given with the approvtvl of tlie Commis^iiimi j of Customs to the registrar of the ship's port to grant a new iciiilicai,. on delivery \ip of the old in lieu of an oi'igiual certifieiite losl or (Ii'sIicjmiI. If the ship is not at her port of registry, tliiiu the master or smiic piismi having knowlwlge of th(^ faets, is to makeadeelaralioii, and tlu'iij^isiuv or eonsidar oilieer at that port is to grant a provisional e('rtiliriil<', whidi is to 1h! within 10 days after the ariival of the ship at her port, in tin United Kingdom, if the port of registry is there, or in a British |)()ss(s>i(iii, or Order in Coiuieil port of registry, delivered n|) to the regisinip dl' Wv port of registry, and a new certi eate ohtained. 17&1H Vict. c. lOl.ss. I7 48. 19, 20. An endorsement is to he made on th(> rcgislrv nf tin' last a|)pointetl master or any change of ownership. 17 & IH Vict, c Kil, •ss. 45, IG. 21. Notice that a ship is lost or when .she ceases to h > Ihitifili-dwnci! is to he given at her port of registry, and her certificate ddivcivd iij); if such event happens away from her port, then within 10 diivs of ilic master's arrival in port he is to deliver the certificate to tlui rcj^istnir, or if none there, then to I'le British consular otlicer. And these pcisons are to forward it to the registrar of the ship's port. 17 it l.s Viil, c. 101. s. 53. 22. A provisional certificate for a .ship on her heconiing British- owned nuiy he granted hy British consular oHiccr if the port is not wiiliiii Her Majesty's dominions nor a port of registry hy Order in (Jdiiiicil. 17 & 18 Vict. c. 104. s. 54. 23. Commissioners of Customs or Governor of a Britisli pnsscssiini may for special reasons grant a temporary i)ass from one port to iiiidtluT without the ship being previously registered. 17 & 18 Vict. c. 10 l.s. !)s, 24-26. Transfer of ship or shares shall be by bill of sale contiiiniiif,' a description of the ship; and transferee shall make a declaration of iiis qualification to own a British ship ; and every bill of sale shall bo rt'gistiivd in the register book of the ship's port. 17 & 18 Vict. c. 104. ss. bb, 50. 67. 27 deals with transmission of property in ship on death, liniik- ruptcy, marriage, of registered owner. 17 & 18 Vict. c. 10 1, ss. oH, 5il,(!0, 28. Where the property or a share in a British ship is transferreil liv such cause as in s. 27 to a person not qualified as owner. If the ship is registered in England the High Court, in Scotland the Court of Sossimi, and in any British possession the principal civil jurisdiction, niiiy, oiitho application of the unqualified person, order a sale and direct that llic proceeds be paid to the person entitled. Application for sale must lie made within four weeks after the event of transmission ; if not made, tlic ship or share may be forfeited. 17 & 18 Vict. c. 104. ss. 62, 04. 29. Where the court orders the sale of the ship or share the order of court shall contain a declaration vesting in some person named by the court the right to transfer that ship or share. 17 & 18 Vict. c. 104. s. 63. 30. The court having the principal jurisdiction in the United Kingdom or any British possession may prohibit transfer. 17 & 18 Vict, c. 104. s. 65. " . lOPERTY. [ifii,i > (vrtiiiculo. 17 it Is 5 18 Vict.c. lUl.ss, 17. 1804.] 57 h 5H VICT. c. 60.— ALTERATIONS IN SHIP. 931 31, 32. A mortgage of n ship or slinro may be made security for II loan, mill is to be in a eortaiu form and rt'gi.stered. A note in the ic^jistor, wiiort' the mortgage is di.scharged, is also to bo made. 17 & 18 Vid. c. 104. ss. (Hi, 07, OH. 33. If more tlian one, tlion priority of registration of mortgages to pivvnii. 17 & IH Viet. e. 104. s. GO. 34, 35. Mortgagee is not to be treated as owner ; but to hav«' power of siiie. 17 & 18 Viet. c. 104. ss. 70, 71. 36, A mortgage is not to be affected by the bankruptcy of the mort- gagor niter the date of the record of the mortgage. 17 & 18 Vict. c, lot. s. 72. 37, 38. A registered mortgage in a ship or share can be transferred, and I lie transfer is to be recorded in the register book, and the mortgage luiiv be transmitted by marriage, death, or bankruptcy, &c. 17 & 18 Vict. c. 104. ss. 73, 74, 75. 39. Powers of mortgage and sale at any phice out of the coimtry in wiiicli tlie port of register of the ship is, may be conferred by certilicate fjraiittid by the registrar. 17 & 18 Vict c. 104. s. 70. 40, 41. Before u certificate of mortgage is granted the applicant must stnti'totlie registrar the name of the person to txercise the powers, and the aniomit of the cliarge to be created, &e., tlie place and limit of time ; liiit (tl) a certilicate of mortgage shall not be grunted " so as to authorise liny mortgage or sale to be nuuie — If the port of registry of the ship is stimtc'il in the United Kingdom, at any place within the United Kingdom, or, if the port of registry is situate within a British possession, at any pliKc within the same British possession : " or at an Order^iu Council port, lU,, "Hv any person not named in the certificate." 17 & 18 Vict. !■. 104. !ilii|), an.lun^ iin.siitif'ficd mortgiigc or existing ccrtificutes of sale or mortgage ciitcml thereon shiill l»e entered on the new register. 17 «i 18 Vict, c, lOi. m.hh. 53. Registry of any ship may Ihj transferred from one |)()rt lo aiiotiicr, and the registrar of tiie ols 8il. 90, 01. 54. When a ship has ceased to be a British ship she is noi in In. re-registered until surveyed. 'M\ & H7 Vict. c. 85. s. fi, 55 dealt with incapacitated persons, such as infants and gavt' powei' lo the guardian i>r eonunittee of such persons to nuike declarations, &c. 17 & 18 V^ict. c. 104. s. anil liniiitiiN, iucii[iarit!ilcil 56> 57 '••■'dt with ..usts and equitable 4;{ ; 25 & 20 Vict. c. Oil. s. 3. rights. 17 & 18 Vict. c. 101, 58 made the beneficial owners lus well as the registered owiitMcitlur jointly or separately liable. 17 & 18 Vict. c. 104. s. 101). 59. Ship's managing owner, or if none the .ship's hus!)au(l, e.g. uumagei', is to be registered. 39 & 40 Vict. c. 80. s. 315. 60. Power is given to the registrar, with the approval of the Com- missioners of Customs, to dispense with dodaiations. 17 & 18 Viit. c. 104. s. 97. 61. Dechuations were to be made before a registrar of Hiiiisli ships, or a justice of the peace, or a commissioner for oiitiis, m ii British consular officer, and may be made on the part of a curpoiatiuii by the secretary or other officer. 62. Fees taken imder this part of the .Act in the I'nitod Kinj;- dom were to be towards the expense of carrying into effect this part of tiw Act. Fees taken in a British possession are to be dispo.sed of as the E.\wu- tivo Government there direct, and if at an Order in Council poit as tliat order directs. 17 & 18 Vict. c. 104. s. 95. 63-65 dealt with returns to be made by registrars in the United Kingdom. Register books may be inspected for a fee of one siiilliiif;,or less. Register books were to be admissible as evidence The forms in the 2nd part of the 1st Schedule were to be used. The Coininiv sioners of Customs, with the consent of the Board of Trade, may giw instructions to their officers as to making entries, attestation of powiis of attorney, &c. 17 & 18 Vict. c. 104. '% 92, 94. 35 & 30 Vict c 7.'!. 8.4. 66, 67. Forgery of the register book, &c., declaration, bill of salu, instrument of mortgage, certificate of mortgage, &c., was niude t'cloiiv i and making a false statement concerning the title to a sliip, ic, knowing it to be false, a misdemeanor. 17 & 18 Vict. c. 104. ss. 101, 103 (4). 68-73 provides that an officer of cutitoms shall not grant a clearunci' until the master declares the nation to which the ship belongs. Ilieii there are penalties for assuming the character of a British ship, or concealing the British character or assumption of a foieign clianicter, iOOKS, [1894. slu! is not (() III' & 18 Viet, c. lOl, 1894.] 67 A 68 VICT. o. 00,— TONNAGE. 933 Tlmt tilt' i'«l onsign, witlioiit any dt'faceinont, is the propor imtionnl colours lor all ships hcloiigiiig to any British siil)jpc't, except in the case of Hi r Majesty'H shijis. If any eolours usually worn hy Her Majesty's ships or pendant are hoisted on hoard any Hriti.sh .ship without authority, a liuf up to 500/. may he incurred, and the colours may be seized, the fine lieiiig recoverable in the High Court, in the Court of Sc^^sion, Scotland, or ia any Colonial Court of Admiralty or Vice- Admiralty within Her Mnjcsty's dominions : but if prosecute performance of anything relating to the registry of a slii[) or ot' anv interest in a ship registered in that possession, and shall have power to approve a port within the possession for the registry of ships. 17 ift ifj Vict. c. 104. 8.31. 90. — (1-) The Governor of ii British posses.sion may, witli the approval of a Secretary of State, make regulations providing that, on an application for the registry under this Act in that possession of any sliip which does not exceed sixty tons burden, the registrar may grant, in lien of a certificate of registry as required by this Act, a certificate of icifjstrv to be terminable at the end of six months or any longer jieriod fioni the graniing thereof, and all certificates of registry granted under any such regulations shall be in such form and have effect subject to such cdndi- tions as the regulations provide. (2) Any ship to which a certificate is granted under any such r('<,nilii- tions .shall, while that certificaie is in force, and in relation to all tliini^s done or omitted dining that period, be deemed to be a registered J5riiisli ['lip. 31 & 32 Vict. c. 129. S.S. 1, 2. 91. This part of the Act shall apply to the whole of Her Majesty's dominions, and to all places where Her Majesty has jurisdiction. Part 2 (sees. 92 to 266) of the Act answers to Part 3 of 17 & 18 Vict, c 104., and by sec. 264 may be made applicable to a British pus- session by colonial legislative enactment. 92. Every British foreign-going and home trade passenger siiip when going to sea, and every foreign steanishii) carrying passengers between places in the United Kingdom, shall be provided with ollicers duly certified as competent. Then it gives a list of the.se. See 17 & IH Viet. c. 104. s. 136. 93. Grades of certificates of competency .shall be granted to the master, first mate, second mate, and only mate of a foreign-goinj^ ship; master and mate of a home-trade pas.senger ship. First-class engineer, second-class engineer. The certificate for foreign-going ship to be deemed the higher grade. 94. 95. Examinations for certificates to be held by local marine boards, &c. 17 & 18 Vict, c, 104. s. 131. 96. For the purpose of obtaining engineers' certificates of com- petency, examinations may be held as the Board of Trade directs. 97 directed fees to be paid on examinations. 25 & 26 Vict. c. 63. s. 6. 98. Grant of certificates on passing examinations, and giving evidcuce of sobriety, experience, ability, and general good conduct. 99. Certificates of service to be given to Her ISIajesty's naval officers, lieutenants, &c., and officers of Indian Marine without examination, also to engineers of tht Royal Navy or Indian Marine. iiDiy, with till' enger slii]) wlioii )y local marine 1894] 57 & 58 Vict. c. 60.— CteilTS. OF COMPETENCY. 936 100, 101. Certificates of competency to be made in duplicate, and a RH'oi'il liept of them, and if a master, mate, or engineer proves lie has lust ills certificate, a coi^y may be supplied to him. 17 & 18 Vict. c. 104. ss. 138, 139. 102. Where the legislature of any British possession provides for the Coloninl cer- examiiiiifion of and grant of certificates of competency to persons tificates of iiitomlinf;- to act as masters, mates, or engineers on bi ard ships, and the competency. Boaid of Trade re[)ort to Her Majesty that they are satisfied that the ixaiiiiniUions are so conducted as to be ecpially etticientwith theexamina- liniis for the same purjwse in the United Kingdom under this Act, and timt till' certificates are granted on such principles as to show the Yike i|iialific'fitions and competency as those granted under this Act, and are lialilc to be forfeited for the like reasons and in the like manner, Her Majesty may 1\v Order in Council — (i) declare that the said certificates shall be of the same force as if they had been granted under this Act : and (ii) declare that all or any of the provisions of this Act, which relate to certificates of competency granted under this Act, shall apply to the certificates referred to in the Order : and (iii) in nose such conditions and make such regulations with resjiect to the certificates, and to the use, issue, delivery, cancellation, and suspension thereof, as Her Majesty may think fit, and impose fines not exceeding fifty pounds for the breach of those conditions and regulations. 32 Vict. c. 11. s. 8. 103. 1 he master of a foreign-going ship on signing the agieeraent wiiii the crew before a superintendent shall produce the certificates of com- licleiicy, also in the case of a running agreement. And such certificates as the Act directs to be held shall be produced to some superintendent wiiliiii 21 days after 30 June and 31 December in every year, by the iiiastt'i' or owner of every home-trade pas.senger ship over 80 tons burden. And the superintendent's certificate that this has been done is, on the ship inoceeding to sea, to be shown to the ofiicer of customs. 104. Forgery, &c., of certificate of competency. 105. Assistance is to be given by superintendents as to persons liisiiiiig to apprentice boys to, or requiring apprentices for, the sea senite. 17 & 18 Vict. c. 104. s. 141. 106 dealt with apprenticeship of paupers in Great Britain and hdand. 17 & 18 Vict. e. 104. s. 144. 107. Attestation of pauper apprenticeship is to be before two justices of tlic peace, who shall ascertain the consent of the boy and that he is over 12. 108. ^- nprenticeship to the sea service to be in duplicate, and steps be takeij to record it within seven ilays of its execution. 109. The master of a foreign-going shiii shall, before carrying an apinvnticc to sea, proiluce the boy and indenture before the .superinten- ileiit, and the apprentice's name is to be entered on the agreement with the crew 17 & 18 Vict. c. 104. s. 145. 110. The Board of Trade may grant licences to persons to supply seanip- and apprentices. 17 &, 18 Vict. c. 104. s. 146. HI deplt with penalty for engaging seamen without licence. 17 & 18 Vict. c. 104. s. 147. ! :|! !. I I } J, (1 i i ■ 1 i . !! - 'i ; 7'K?TItT!ni"'>»^r!I-l w il f Engagement of senmen in colonial and foreign ports 936 57 & 58 VICT. c. 60.— ENGAGEMENT OF SEAMEN. [1894 112. Penalty for receiving remuneration other than fees under the Ad from seaman for finding hiui employment. 17 & 18 Vict. c. 104. s. 14H 113. The master of every ship, except ships of less than 80 tons, shall make an agreement with everv seaman carried to sea as one of bis crew. 17 & 18 Vict. c. 101. ss. 149, 157. 114 dealt with the form, period, and conditions of agreements with the crew. 36 & 37 Vict. c. 85. s. 7 ; 17 & 18 Vict c. 104. s. 149. 115, 116. Special provision.s in case of foreign-going ship and honip- trade ships, as to agreements with crew, e.ff., as to the signing liy eacii sejiman, and reading over hy .sn4)erintendent to the crew. They dealt also with rnnning agreements, and agreements for service in two or more ships. 17 & 18 Vict. c. 104. s.s. 150, 151, 155, 156. 117. Changes in crew of foreign-going ships before finally sailing to be sent to the nearest superintendent. 17 & 18 Vict. c. 104. s. loH. 118, 119 tlealt with certificates to be granted by the superintenili>iit to the master, as to agreements with crew of foreign-going and liouie- trade ships : 1 st, that -lucli agreements have been made •. 2nd, tliat iiotici' ul agreemenis has been given within 21 days after 30 June and 31 Dec. ir & 18 Vict. c. 104. S.S. 161, 102. 120. A copy of agreement with the crew was to be posted up in the ship where the crew could see it. 17 & 18 Vict c. 104. s. 166. 121, 122 dealt with forgery, &c., of, and alterations, witliout consent, made in the agreements witli the crew. 17& 18 Vict. c. 104. ,ss. 161,11)3. 123. Seamen can in any proceedings prove the agreement witiiout producing it. 17 & 18 Vict. c. 104. s. 165. 124. — (!•) Witli respect to the engagement of seamen abroad, tlu' following i)rovisions shall have effect : — Where tin- master of a sliip engages a sejiman in any British po.s.si'ssioii other than that in which the ship is registered or at a port in which tiuiv is a British consular officer, the provisions of this Act respecting agiee- ments with the crew nmde in the United Kingdom shall apply suhjeot tn the following modifications : — («.) In any such Briti.sh pos.session the master shall engage tlu' seaman before some officer being either a superir.Uitdent or, if there is no such superintenden' an officer of cu.stoms : (6.) At any such port having a i ntish consular officer, the muster siiall, before carrying the seaman to sea, procure the sanction of the consular officer, and shall engage the seaman before that officer : (c.) The officer shall endorse upon the agreement an attestation to the effect that the agreement ha*i l)een signed in his pre.sence and otherwise nuule as required by this Act, and also, if the officer is a British consular officer, that it has his sanction, and if the attestation is not made the burden of j)roving tiiat the engagement was made as required by this Act shall lie upon the master. (2) If a master fails to comply with this section he shall be liable for each offence to a fine not exceeding five pounds. 17 & 18 Vict. v. 104. ss. 159, 160. 125 dealt with agreements with lascars. 18 & 19 Vict. c. 91. s. 23; 17 & 18 Vict. c. 104. s. 544. 126. The Bating of Seamen as A.B. 43 & 44 Vict. c. 16. s. 7. F SEAMEN. [1894 | 1894.] 57 & 68 VICT. c. 60.— ALLOTMENT OP WAGES. 937 127-130 dealt with the discharge of seamen, where they were (lischar<;ed in the presence of a superintendent, and the master shall give a discharge, and return tlie seaman's certificate of competency if he bad received it. And the master is also to sign a report of the seaman's conduct and qualifications — in fact, give him a character. Giving a false character is to be punished. 17 & 18 Vict. c. 104. ss. 172, 176. 131. Where a seaman is discharged before a superintendent he shall receive his wages through or in the presence of the latter. 17 & 18 Vict, c. 104. 8. 170. 132. The master is to deliver a full account of wages before he pays off a seaman, and to state all deductions whatever. 17 & 18 Vict. e. 104. s. 171, and 43 & 44 Vict. c. 16. s. 4. fore finally sailing to ct. c. 104. "s. 158. e agi'eemeut without seamen abroad, tln' 19 Vict. c. 91. s. 23; Vict. c. 16. 8. 7. 133. Deductions from wages of seamen shall not be allowed unless included in the account, except they arise after the account is delivered ; iiml the deductions are to be entered in a book during the voyage. 17&18 Vict. c. 104. s. 171. 134, 135 dealt with time of payment of wages for foreign-going and home-trade ships, and was in effect that the whole was to be paid within two clear davs after the seaman leaves the ship. For sec. 134 see 43 & 44 Vict. c. 16. s. 4; and for sec. 135 see 17 & 18 Vict. c. 104. s. 187. 136. Where a seaman is discharged, and the settlement of his wages is completed before a superintendent, he shall sign a receipt in release of all claims. 17 & 18 Vict. c. 104. s. 175 ; 43 & 44 Vict. c. 16. s. 4. 137. If a dispute as to wages totalling under 5/., the decision of the questions may be left to the superintendent. 43 & 44 Vict. c. 16. s. 4 (o) ; 17 & 18 Vict. c. 104. s. 173. 138. In any proceedings re wages claims or discharges before a superintendent, the superintendent may require the production of the ship's papers, &c. 17 & 18 Vict. c. 104. s. 174. 139. Where a seaman has agreed for payment in British sterling, or any other money, any payment on account of his wages 'f made in any other currency than that stated in the agreement, shall, notwithstanding anything in the agreement, l)e made at the rate of exchange for the money stated in the agreement for the time current at the place where the payment is made. 52 & 53 Vict. c. 46. s. 4. 140 s of savings banks may be paid out of interest received from National Debt Commissioners. 152 provides that annual accounts and copy of regulations of Board of Trade be laid before Parliament. 153. Board of 'i'rade officers to be exempt from legal proceedings, except in case of wilful default. 154 enacted that forgery of documents, &c., for the purpose of olitain- ing money in seaman's savings bank shall be punished with penal servi- tude. 17 & 18 Vict. c. 104. s 203. 155. Bight to wages, &c., shall be taken to begin either at the time the seaman, &c., commences work, or at the time specified in liis agree- ment. 17 & 18 Vict. c. 104. s. 181. 156 provides that a seaman shall not by any agreement forfeit liis lien on the ship, or be deprived of any remedy for the recovery of iiis wages, nor by agreement abandon his right to wages in the event of the loss of the ship, or abandon any right he may have or obtain in the nature of .salvage; but nothing in the section was to apply to a sti[)nhition made bv seamen belonging to a .shij) emploved on salvage serviee, 17 & 18 Vict. c. 104. s. 182 ; 25 & 26 Vict. c. 63. s. 18. 157- I'hc right to wages shall not de|)cnd on earning freight ; but in idl cases of wreck or loss of the ship, proof that the seaman has not exerted himself to save the same shall bar his claim to wages. Deceased .sen- man's wages are to be paid as if he died during a voyage. 17 & 18 Vict. c. 104. 88. 183, 184. 158. Wages on termination of service by wreck or illness of senman, or his being left abroad under a certificate of his unfitness to proceed on the voyage, &m only due to such time. 17 & 18 Vict. c. 104, s. 185. f interest veceivi'd ■Illations of Board legal proceedings, purpose of olitaiii- . with peniil scrvi- 1894.] -7 & 5R VICT. c. 60.— RECOVERY OF WAGES. 939 159 i)rovi(le8 that wages are not to accrue during any time a seaman untov fully refuses to work, or during imprisonment, unless the court otknviso" orders. 17 & 18 Vict. c. 101. s. IHd. 160. If " seaman's illness incapacitating him from work is proved to liavebeen (Niused by his own default, he shall not lie cntitleil to wages for the time he was injap.ible of performing his duty. 30 & 31 Vict. C.124. s. H. 161. riie costs of procuring the punishment by a competent tribunal uf It seiiuiau may be deducted fro.n wages. 17 & 18 Vict. c. 104. S.251. 162 provides that where a saaman has signed an agreement, but is Jiv'hirged otherwise than in the terms thereof before the commencement of the vovage, or before one month's wages are earned, without fault on his part, and without his consjnt, he shall hv entitled, in addition to i1k' wages he has earned, to due compensation, not exceeding one month's wages, and may recover it in the same way as if it wore wages duly earned. 17 & 18 Vict. c. lOt. s. 107. 163 provides that wages due to a seaman or apprentice to the sea service >hiill not he subject to attachment or arrestment from any court. That all iissigninent of the .same made prior to tlu; accruing thereof shall not he hiiuling. A power of attorney to receive the same shall not be irre- vot';il)le, and a payment of wages to the seaman or apprentice shall be valiil, notwithstanding any previous sale, assignment, attachment, incum- brance, or arrestment thereof. 17 & 18 Vict. c. 101. s. 233. 164. Wages not exceeding 50/. may be obtained by proceedings iKtme any court of summary jurisdiction in or near the place where the ilist'harge took place, or at any place where the i)erson on whom the claim i United Kingdom, or the said officers do not require deli\ery of the property, ihen within 48 hours of the ship's arrival in the United Kingilom the ^nopiTty is to be delivered or paid to the sujierintendent at tiiat port, with an account of the property, and no deduction is to be allowed unless entered in the official log book. 17 & 18 Vict. c. 104. s. 195. 171. If the master does not do the above things he is liable for the property of the deceased seaman, and liable to a fine not exceeding; treble the value of the property not accounted for, and if the master does not deliver or account for the [jroperty the owner is liable in the same wiiy and to the same penalty, and the property may be recovered in the same way as seaman's wages. 17 & 18 Vict. c. 104. s. 196. 172 provides that if property of a deceased seaman is loft abroad but not on board ship, the chief officer of customs, in the case of a British possession, and in other cases the British consular officer, shall take charge of the property. 17 & 18 Vict. c. 104. s. 197; 25 & 26 Viit. c. 63. s, 20. 173. A chief officer of customs in a British possession may sell any of the property of a deceased seaman delivered to him, and .shall render accounts thereof quarterly, or as required, to the Board of Trade. 17 k 18 Vict. c. 104. s. 197. 174 dealt with the recovery of wages, Ac, of seamen lost with their ships. 25 & 26 Vict. c. 63. s. 21. 175 dealt with property of seamen dying at home. 17 & 18 Vict, c. 104. s. 198. 176 dealt with the payment over of property of deceased seamen by Board of Trade. 17 & 18 Vict. c. 104. s. 199. 177 provided for the dealing with deceased seaman's property when he leaves a will. 17 & 18 Vict. c. 104. s. 200. 178. Claims by creditors. 17 & 18 Vict. c. 104. s. 201. f'FlM™?!" T ABT^OAT). [iHOj. leamen lost with their 1IJ94.] 57 Ite 58 VICT o. 60 —SEAMEN LEFT ABROAD. 941 179. Dealing with uncluiined proiierty of deceased seaman after sis vears, where no claim to it. 17 »& 18 Vict. c. 101. a. 202. 180 dealt with the case of forgery of documents, «fcc., for the [mr- poseof obtaining property of deceased seamen. 17 «& 18 Vict. c. 104. 181 dealt with property of seamen discharged from Royal Navy and living on their wav home in a merchant ship. 17 & 18 Vict. c. 104. i.m. 182 Helief to seamen's families, to I)e chargeahlo on a certain pro- puilion of their wages. 17 & 18 V^ict. c. 104. s. 11)2. 183. Boards of guardians may give notice to owner of ship whereon jtiiinan is serving of any i-laim, and may enforce the charge on seaman's ivtiiiii. 17 & 18 Viet. c. 104. s. 193. 184 sums received towards those expenses shall be cari'ied to the credit (if tlmt fund. 15 & 4G Vict. c. 55. s, 3 (e.). 195, 196. 197 dealt with .seamen and their rights on leaving their sliip to forthwith enter the Royal Navy. 17 & 18 Viet. c. 104. ss. 214, :il5, 211), 217, 218, 210, 220. 198 provides for the complaints of three or more of the crew of a British ship who consider the water for the use of the crew unfit for iisi' or (lelicient in quantity : — That they might complain to either an (ilKt'cr in command of one of Her Majesty's ships, a British consuhir ollicer, a superintendent or a chief officer of customs : and if the person maiiini; the examination finds that the provisions or water arc unfit for iisi' or ileiicient in quantity, he shall signify it in writing to the nuister ; and if the master does not provide other proper provisions or water (ir uses any provisions or water so stated to la; unfit for u.se, he shall be lialilc to a fine not exceeding 20/. The person making the examination sliail enter his report in the otlicial log book ; an taken before some court lapable of hearing the matter, and if such coiu't thinks that the st^aman i< being conveyed on board on insullicient gi'ounds it may fine up to 20/. the person guilty. 13 & 41 Vict. e. 10. s. 10. 223 provided for tho case of a t .iman out of tho United Kingdom iliiiinga voyage being guilty of desertion or absence without leave, and gave |iiiHcrt() the nutster, &c., in any place in Her Maj(!sty's dominion.s, with (ir without the assistance of the local police, and ul.so out of Her .Majesty's dominions in and so far as the laws in that place will admit, to iirrc-t iiiin without first procuring a warrant. He may be taken before a court J or, if he does not desire it, or if there is no court, he can be conveyed direct on board. If the .jurt considers the arrest improper it can impose a fine np to 20/., which fine is to bo a bar to any action for false imprisonment. If out of the United Kingdom a .se^iman is suffer- ing imprisonment for desertion or breach of discipline, and his services are required on board ship, a .I.P. may, on the ap[)lication of the master, owner, or agent, notwithstanding the term of imprisonment is not at an end, cause the seaman «&c. to be conveved on board his .ship. i;&18 Viet. c. 104. ,ss. 148,210. 224. Where a seaman is brought before a court out of the United Kingdom for desertion, the court in lieu of imprisonment may cause the (lifender to be conveyed on board ship for the puri)ose of proceeding ou his voyage. But if in the United Kingdom, a seaman intending to absent himself from his duty may give the master notice, not less than 18 bom'S before he ought to be on board, and tlu^n the court is not to exereise any of the powers given of having him conveyed on board. 17 & 18 Vict. c. 104. s. 247 ; 43 & 44 Vict. c. 10. part s. 10. 225 provides for the [umishment of seamen &c. lawfully engaged to the sea service committing any offences against discipline. 17 & 18 Vict, c. 104. s, 2 13 (3) to end. 226. Summary remedies of master are not to affect his remedies for breach of contract. 227 provides for penalty for false statement by a seaman as to his last ship or her name. 17 & 18 Vict. c. 104. s. 255. 228. AH offences are to be entered in official log-book, a copy being furnished to the accused seaman, and produced in any future legal pro- teediug. 17 & 18 Vict. c. 104. s. 244. 229. If a seaman deserts his ship abrornl, the master is to produce the entry of the desertion to the person authorized to grant certificates S 2430. 3 O FT I' 1 lii ill \ . V I 1 i ;-""5<.-t!«8Hm^!i ^"iSWiiai4y;"itWfi'ii!t!}«lK;iti!'.-':'Ii'iH'iti'jni'ovidrd that a .snporiiitondfnt .sliall kocj) a n^gistcr of (lixritTs 231. The entry in tho ofllciiil log-hook is gcod to provt? dcscilion in proceedings for forfeiture of waires. 17 & IH Vict. e. 101. s. 250. 232. Forfeitures of wages and eff«'ets for desertion are to go towards reiudiur.sing expen.ses caused by tlie desertion, and ihc Ipiiliiiicc hi l,,. paid into the exchequer. In any otlier case other tlian Ion, in th,. absences of specilic provision to the contrary, tiie furl , arc to hu for the benefit of tlie nuister or owner. 17 & IH Viet. c. lOI, s. '2o',i, 233. Any questions of forfeiture or deductions f rum the wages of a seaman may be determined in any proceeding.s instituted witii nspcct to these wages. 17 & 1« Vict. e. lOt. s. 25 1. 234. Where the seaman contracts for wages by the voyiig(>, run, or share, the amount of forfeiture out of wages shall be an aniount licaiini' the same proportion to the whole wages or share, as a month or any other period fixed bears to the whole time spent in the voyai'c 17 & IH Vict. c. 101. s. 252. 235 dealt with deduction from wages : and payments to supeiinten- dents of fines. 17 & 18 Vict. c. lOt. s. 250. 236 'lealt with penalities for enticing to desert and luirbomiiii' deserters. 17 & 18 Vict. c. lOi. s. 257. 237. Penalties on stowaways : the discipline of stowaways : niiil seamen carried under compulsion. 17 & 18 Vict. c. 10 "J. 258. 238. Where facilities are given by foreign goverr for ivcovciy of seamen who desert from British merchant ships, .ajesty niav, by Order in Council, declare this section to apply ; and where it ap|)iies in the case of any foreign country, and a seaman or apprentice not being a slave deserts when within any of Her Majesty's dominions from a nuTchaiit ship belonging to a subject of that foreign country, any court, &.Q., that would have cogni.sance of the matter if the seaman had deserted from a British ship, shall, on application of a consular otiiccr of tln^ foreign country, aid in the apprehension of the deserter, and may, on information given on oath, issue a warrant, and on proof of the desertion order the seaman to bo conveyed on board the foreign ship. 15 & 10 Vict. c. 20, s. 1. 239-243 dealt with otficial logs and the keeping of the samo, 17 & 18 Vict. c. 104. ss. 280, 281, 282, 283, 281, 285, 280, 287. 244, 245 dealt with Local Marine Boards. 17 & 18 Vict. c. 101. ss. 110, 119. 246-250. Mercantile marine officers. 17 & 18 Vict. c. 104. ss. Ii2, 123, 124, 127; 30 & 37 Vict. c. 85. s. 10; 25 & 20 Vict. c. 03. s. IG. 251. Establishment in the port of London, under the control of the Board of Trade, of a general register and record office of seameu. 17 & 18 Vict. c. 104. s. 271. 252, 253. Register of seamen; lists of crew. 17 & 18 Vict,c.l04, ss. 272 273, 274, 275. 254. Return of births and deaths in British ships. 17 & IB Vict. c. 104. s. 273 (8) (9) ; Registration of births and deaths at sea, 37 & 38 Vict. c. 88. s. 37. TERS. [1H04. (mil II ('(ipy to tlin i 18 Vict. c. 104. j»istcr of dcscrtiTH. l)rovt' (k'sortion in 101. s. 250. I lire to <^o towards ihi' lillllllU't' Id Ii(> II 'nil, ill till' rl . till' ti) III' ;. e. 10 1, s. 2o;{. lum tlic wap's (if II itcd witli rr>|H'cl ti) (lii> voyajjc, run, m- nil iiiiioiiiit liciiriiii; as a iiioiitli or any ;ut in till' voyaj,'!'. iicnts to supciiiiten- ;rt and harbouring of stowaways : nivl 1(1 '^. 258. •E for ivcoverv I, .ajt'sty limy, III where it aiiplies iu iprunticc not I icing a icnsfroinamcrchiiiit any court, &.C., tliut had (k'St'itcd fnnii a ll'icer of the. foreign may, on iuforiiiiitioii (lesei'tion order tlio 15 & 10 Vict. c. 20. eping of the snmo. :85, 28G, 287. L7 & IH Vict. c. 101. ? Viet. c. 104. ss. 1-22, 20 Vict. e. 63. s, 10. H' the control of the rd office of seauieu. 17 & 18 Vict. c. 104. diips. 17 (fc 18 Viet, eaths at sea, 37 (fc 38 ,^9t,] .j7 & 38 VICT. c. 00.— OOL. APPLICATION. 947 256. ll('t'>rn as to list of crow in cnso of transfer or loss of ship. 17 i 18 Vict. c. 101. s. 27(J. Sec also 'Mi & ;17 Vi(;t. c. H.j. s. 22. 256. 'rrunsnussion of (hjcumonts to registrar by superintendents and other oHiccrs. 17 »t IK Vict. e. lOi. s. 277. 257. Whenever a ship, in whatever part of Ilor Majesty's do- iiiiniiins it is n!gist(!i'e(l (e.\.ci'[)t a passmigor ship), iirrivivs at a port in a lirilisli possession, or at a port (dsewhcit- at which there is a IJritish rtibular otllcer, and remains thereat for 18 hours, the master shall, ffithin IS hours of tho ship's arrival, deliver to tlu^ chief officer of customs urBiilish consular oHicer the agreement with the cr 'w, &c., or if the ship i< n'l'istored in a British [losscssioii such of these ([o(!Uiniu»t3 as tho ship i< provided witli, which are to Ito ri'tiuiKid to the master on departure of theslii[i \Tith an endor.semont of the time when delivered and returned, and if it apiiears tho laws have bec.i irausgressed the officer is to iLikoim endorsemeni to tiiat effect, 'uid tmnsmitacopy to the llegistrar- litnenil of Shipping and Seamen. 17 & 18 V'mt. c. 101. s. 279. 258. If II master is removed or superseded during tin; progress of a voyiigo lie is to deliver to his successor the various documents relating 10 the navigation of the ship and crew. 17 & 18 Vict. c. 104. s. 259. 259. Corporations, &c., may grant sites for sailors' homos. 17 & 18 Vid. c. 540. 260. 261 provided that Part 2 of the Act shall apply to ships ngistered iu tho United Kingdom and elsewhere. 17 \ 18 Vict. c. 10 1. s.iOO. 262, 263. Partial application of Part 2 to ships of lighthouse authorities and pleasure yachts, and to fishing boats. 264. If the legislature of a British possession by any law apply or Applicntion of adapt to any British ship registered at, trading with, or being at any port I''""! 2 to in that possession, and to the ownei.s, masters, and crews uf those ships, eolony by au) provisions of this part of this Act which do not otherwise so apply, J^' 'ylj'mn. iiith law shall have eltect throughout Her Majesty's dominions, and in all pbces where Her Majesty has jurisdiction, in the same manner as if it were enacted in this Act. 17 & 18 Vict. c. 104. s. 288. 265. Where in any matter relating to a ship or to a person belonging Conflict of lawn, to n ship there appears to bo a conflict of laws, then, it' there is in this part of this Act any provision on the subject which is hereby expressly made to extend to that ship, the case shall be governed by that i)ro\'i- sion, but if there is no such provision the case shall be go\ erned by the law of the port at which the ship is registered. 17 & 18 Vict. c. 104. 8.290, 266. Unregistered British ship ileemed to be registered in the United Kingdom for Part 2 purposes. 46 & 47 Vict. c. 41. s. 49. PART 3 (sees. 267 to 368) accords with Parts 3 and 4 of 17 & 18 Vict. 0. 104. and 18 & 19 V'.ct. c. 119. And sees. .365 and 306 show how far the Act is or may be applied to the colonics ; and sec. 735 how far this part of the Act may be repealed by the same. 287 gives the definition of " passenger " and " pas.senger steamer." IS & 19 Vict. c. 119. s. 3; 26 & 27 Vict. c. 51. s. 3 ; 52 & 53 Vict. C.29.S.2. 3o 2 m HL 94)8 57 & 58 VICT. c. 60.— COL. CERTIFICATES. [im. 268 gives the meaning of " emigrant .ship " ; e.g., if it carry more than 50 steerage passengers or a greiiter number of steerage passciigtMs tlimiin the proportion, if a sailing vessel, of one ailult to 33 tons of ship's rcfistfiod tonnage : if a steamship, one a(hilt to every 20 tons. And " cmitrrant ship " includes a ship which, having proceeded from a port oiitsido tin' British Islands, takes on board at any port in the British Islands sutli number of steerage passengers, whether British subjects or aliens resident in the British Islands, as wouUl with or without the steern"i' passengers she has already on board constitute her an emigrant ship. The .section then .set out how to distinguish "cabin" from "steeriifi" passenger. 26 & 27 Vict. c. 51. s. 3 ; 18 & 19 Vict. c. 1 19. s. .3. " 269. The scale for determining length of voyage may bo one of the Board of Trade's scales. 18 & 19 Vict. c. 119. s. 3U. Definition of 270. For the purposes of this part of the Act a coloninl vovii^t. coloniiil voyngp. means a voyage from any port in a British possession, other tiinii Jiriifd India and Hong Kong, to any port whatcve'-, where tlie distance lutwiHn such ports exceeds four hundred miles, or the duration of the vovai'c, uv determined under this Part of this Act, exceeds three days. 18 it li) \k\ c. 119. s. 95. 271. An annual survey of passenger steamers which carried more than 12 passengers was provided for. 18 & 19 Vict. e. 119. s. li), 272, 273 give the mode of survey and declaration of snrviv, and transmission of declaration, &c. 17 & 18 Vict. c. 104. ss. 309, 3lil. 274. Issue of passenger steamer's certificate. 17 it 18 Viet, c 1C4 s. 312. 275 gives an appeal to a court of survey if any owner of a stcanKt feels himself aggrieved by a survey by a shipwright or engineer surveyor 39 & 40 Vict. c. 80. s. 1-4 (1). 276 'leals with transmission by Board of Trade of ccrtificatp in duplicate to the port of the owner or where the steamer is Iviii". 17 & 18 Vict. c. 101. 8. 313. 277, 278 tleal with fees for certificate and duration of eortifiwiti'. 17 & 18 Vict. c. 101. .s. 31 1, 315. 279-281. Cancellation, delivery, and posting ui) of cortiCcate. 17 & 18 Vict. c. 101. s. 316. 282. Penalty for forgeiy of certificate. 17 & 18 Vict. c. 101 e. 320. 283. Penalty on carrying |)assengers in excess of numl)er nllowtd by certificate. 17 & 18 Vi<;i. c. 101. s. 319. 284. Where the legi.slature of any British i)ossc.ssion provides for tlw survi'y of, and grant of certificates for, passenger steamers, and the Bwmluf j Trade report to Her Majesty the Queen that they are satisfied tliat ilie certificates are to the like effect and are granted after a likpsnrvpy,nniliii i such manner as to be equally cflicient with the certificates granted for iLe I same purpose in the U.K. under this Act, Her Majesty in Council nuiv ;- (1) declare that the certificates granted in the said Briti.sli posi*>siun | .shall be of the same force as if gi-anted under this Act ; and | declare that all or any of the provisions of this part of this Aet wliiili j relate to passenger .steamers' certificates shall, either without niodifi«iti»n | or with such modifications as to Her Majesty may seem uecessarv, Colonial certi- ficates for passenger steamers. Wff [CATES. [1891, m.] 57 & 58 VICT. e. 60.— EMIGRANT SHIP. 919 duration of ccrtiCwiti', apply to the eortificatos gmntod in tho said British possfssioii ; and (.'}) imiioso isuch conditions and uiaki- such regulations with respect to the ffrtilicatos and to the use, dclivciy, and cancclhition thereof as to Her Majesty may seem fit, and impose fines not exceeding 50/. for llie breacli of those conditions and regnhitions. 39 & 10 Vict, c, 80. s. 17. 285 fleals with equipment of passenger .steamers; tliat they should have compasses properly adjusted, hose, deck shelters, and safety valve on well l)oiler out of the control of the engineer when steam is up. The lioniilty for not having these things may be 100/. 17 & 18 Vict, c 101 s3Ul. 286 prohibited increasing the weight on the safety val\e beyond the limits fixed by the surveyor, ^ee s. 433. 17 & 18 Vict. c. 101. s. 302. 287 li'iim('r's ccrtilieate is not in force, shall nt)t clear outwards or proceed survey of loHfl on any voyage unless she has been surveyed under the direction of emigrant ships, tbi' I'lnigration officer at the [wrt of clearance, but at the expense of the owner or chiirterer thereof, by two or more comiietent surveyors to l)e appointod at any port in the British Islantls where there is an emigration iittieir by the Board of Trade, and at other ports by the Counnissioners of CiKstonis, and has been leported by such surveyors to be in their "piiiitm seaworthy and lit for her intended voyage. " (i.) The siu'vey shall be made before any portion of the cargo is taken on Ixwnl, except so much as may be necessary for ballasting the ship, and >iidi portion of cargo if huleii on board shall be shifted, if reipiired by llip emigration officer or the siu'veyors, .so as to expose to ^ iew succes- >iv('ly every part of the frame of the ship. " (3.) If any such surveyors report that the ship is not .seaworthy, or not fit for her intendeil voyage, the owner or charterer may, if he thinks tit, by writing under his hand require the emigration officer to appoint three other competent surveyors (of whom two at least must be ship- wTights) to survey the ship at the exiK'nse of the owner or chaiterer, and the said officer shall thereupon ai)point such surveyors, and they shall Jiii'vey the ship ; and if by unanimous report under their hands, Ixit not otherwise, thoy declare the shii* to be .seaworthy and lit for her intended voyage, the ^liip shall for the pur^)oses of this Part of the Act be deemed H'nworthy and iv i'cv that voyage. "(1.) If any reqimement of this .section is not complied with in the ease of any eniigiimt ship, the owner, charterer, or master of the .ship or niiy jf (hern shall f( r each offence be liable to a line not exceeding one hundrec pounds." 18 & 19 Vict. c. 119. s. 19. ^ ■! ^% "pWil! ■ m 950 57 & 58 VICT, c, 60.—NECESSARY FURNISHINGS. [1894. inetcr.s, fire engine, anchors, &c Equipments. Equipment 290. — " (1) Every emigrant ship sball, in addition to any other with com- requirement under this Act, be provided with the following; articles ■ passes, chrono- namely,— " (a.) With at least three steering compasses, and one azimntli compass; and " (i.) If proceeding to any place north of the Equator, with at least one chronometer ; and " (c.) If proceeding to any place south of the Eriuator, with at least two chronometers ; and " (d) With a fire-engine in proper working order and of siicli description and power, and either with or without such other apparatus for extinguishing fire as the emigratiou officer may approve ; and " (e.) With three bower anchors of such weight, and with cal)le.s of such length, size, and material, as in the judgment of the emigiation officer are sufficient for the size of the shipj and " {J\) If a foreign ship, with four properly fitted lifebuoys kept readv at all times for iunnediate use ; and " {g.) Adequate ; -ins, to be approved by the emigration officer nt the port ot cleaiance, of making signals by night. '* (2.) If any requirement of this section is not complied with in the case of any emigrant shij), tlu^ master of that ship shall for each offence be liable to a fine not exceeding fifty pounds." IH & 19 Vict. c. 119. s. 27 ; 39 & 40 Vict. c. 80. s. 21. !■;, lU'gulations an to carrying of p;U!.sengers gcucrally. Limit of miniber of steerage pas- sengers to lie e irried on emigrant ships. Kegulations as to accommoda* Number of, and Accommodation for, PasseiHjcrs. {See sec. 365.) 291. — "(^O A ship shall not carry passengers, whether cul)in or steerage passi'ngers, on more than two decks, except that cabin pas- sengers not exceeding one for every hundred tons of the .ship's regislercil tonnage, and sick persons placed in hosi)ital as hereinafter i)ro\i(le(l, iniiy be carried in a pool) "'" deck-house, although passengers are carried on two other tlecks. " (2.) If steerage passi-ngers are carried under the poop, or in aroiiini- house, or deck-hou.se, the poop, round-hou.se, or deck-house shall 1k' pro- l»erly built and secured to the satisfaction of the emigration ollicer at the port of clearance. "(3.) If any rele amount of wholesome ju'ovisions and |)ure water, not inferior in (juality to the i)rovisions antl water provided for the ste-rage passengers. "(4.) All such water and ])rovisions shall be provided ami stowed away by and at the expense of the owner, charterer, or n:aster of the ship. " (5.) If any emigrant ship obtains a clearance without being provided with the requisite cpiantities of water and provisions in accordance with tliis section, the owner, charterer, or master of that ship, or any of them, shall for each offence be liable to a fine not exceeding three hundred pounds. " (G.) Before an emigrant ship is cleared outwards, the eun'gration officer at the i)ort of clearance shall survey or cause to be surveyed by some competent person the provisions and water by this Act required to be placed on board for the steerage pns.'-engers, and shall satisfy himself that the same are of good antl wholesome (piality luul in sweet and good eoudition, and in the quantities required by this Act. mm 952 57 & 58 VICT. c. GO.— WATER ON EMIG. SHU'S, [isoi 11! 3[ode of carrying •water, Provision for touching i\t inteniiLJiatL' ports to tiiku in wiiti'r. " (7.) If the einigration oHiem- cousiilers that any part of the piovisicMh or water is not of ii good and whole.sonu- (luality, or is not in swcii and good condition, he may ri'ji'ct and mark the same, or the p,ickii;;(s or vessels in whieli it is contained, and direct the same to be fortinvitli huuled or emptied. *' (8.) If the same are not forthwith hmded or emptied, or if iiftorbfiii" landed the same or any part thereof are reshipi)ed in the ship, tiic owner, charterer, or master of the shiit or any of theui, or, it' tiio same arc shipped in any other emigrant ship, then the person eaiisinir the Siunc to be so sliipped, .shall for each offence be liable to a lint' luit exceeding one hnndred ponnds." IS & 15) Vict. c. 119. s.s. 31, 32. 296. — " ( 1 ■) 'I"he water to be placed on board emigrant ships as horoiii- before provided shall be carried in tanks or casks approved by tJm einigration ofticer at the port of clearance, and the casks siiall bu swi"i and tight, of snllicient strength, and if of wood projjcrly charred inside, and the staves shall not be made of (ir, pine, or soft wood, and cnch cask .xhall not be capable of containing more than three hundred gidloib. " (2.) If any retpnrenicnt of this section is not complied with in tiic case of any emigrant .ship, the owner, charterer, or master of tlie slii|i, or any of them, shall for each offence be liable to a line not excmlin;,' lifty ponnds." 297. " If «" emigrant ship is intended to call at any intcriiH'diiiteporl during the voyage for the pnrpo.se of taking in water, and if an en},'aj;c- ment to that ell'ect is inserted in the nnister's bond herein-aftei uii'n- tioned, it shall be snllieient to place on board at the port of elwiraiiiv such supply of water as is reipiired by tiii.s Part of tiiis Act for tlii' voyage to the intermediate port, subject to the following conditions; (that is to say,) " (i.) The emigration officer at the port of clearance shall apiiiovciii writing the arrangeiueid, and (lui approval .Khidllicciiniud among the ship's papers, and shall be e.xhibiteil at tlii; intermediate port, and delivered on the arrival of the sliiji at her final port of discharge to the chief oiUccr of cibtuin>, or British consular officer, as the case may he : " (ii.) If the K'ngth of either j)ortion of the voyage, whellicr to ihe intermediat*' port, or from the iiitermeiliiite port totlu' linal port of discharge, is not determined under tlii> Part of lhi.s Act, the emigration offici^r at tlu' port of cluuiaiiir shall declare the .sune in writing, as part of his said aji- jtroval of the arrangement " (iii.) The shij) shall have on board at the tinu' of elearaniTsuih tanks and water casks, of the description by this Fart of tliis Act recjuired, as are sufficient for stowing the (iiiaiility of water recpiired for the longest of the aforesaid poitioib of the voyage." IS & I!) Vict. c. Hi), s. HI. Issuo of water 298. — " (1-) 'l"l»e master of every emigrant ship shall duiin<; tlu' or provisions voyage, including tiie lime of detention at any place before the tcnniiiii- diiring voyage, tion thereof, issue to each steerage passenger, or where the steeru^f pas- sengers are (livided into messe.s, to the iiead man for the time being of wiili nu'ss, on behalf and for the use of all ihemendters thereof, an allowanwof piu'e water [3 (luarls tlaily], and sweet and \viiole.'*ome provisions [Set Bee. 365 (3)] of good quality, in accordance with the dietary scidis in tlu' Twelfth Schedule to this Act [taken from sec. (pioted bclowj, whidi ahull have effect us if they were cuutuiued iu this bectiuii. WT 1891.] 57 & 58 VICT. c. GO.— DIETARY SCALE. 953 "(2.) Tlie Boju'il of Tnule iniiy, 1)y notice jmMisliod in ,iio London Gazette, iidil to tlio dietury scales in tiio said schcdnle any dietary scale wbii'li in their opinion contains in the whole the same amount of wholesome nutriment as any scale in that schedule, aiul any dietary scale 50 added, inclusive of any rej^ulations relatinj^ thereto, shall have effect as if they were containcMl in the said sche'lule as an alternative of the ilietmy scales therein contained, and accordinj^ly a master of a ship may isiiue provisions according to the latter scales or to any scale .so addecl, wiiichever is mentioned in the contract ticket of the steerage passengers. " (3.) If any requirement of this section is not complied with in the tasL' of any emigrant ship the master of the ship shall for each offence be lialiie to a fine not exceeding fifty pounds." 18 & 19 Vict. c. 119. s. .35. 299. "The Board of Trade, if .satisfied th.at the food, space, accommo- Power of Board (lation, or any other particular or thing provided in an emigrant ship for of Trade to any cla.ss of passengers, whether cabin or steerage, is su[)crior to the food, exempt sliips. s|KicP, accounnodation, or other particidar or thing retpiired by this Part of this Act, may exempt that ship from any reipiirement of this Part of this Act with r<>spect to food, space, or accommodation, or other par- ticular or thing, in such manner and upon such conditions as the Board think fit " 300. — "(!•) '^''f owner or charterer of every emigrant ship shall Medical stores. |rtovide for the use of the steerage [)assengers a supply of the following things (in this Part of this Act referred to as medical .stores), namely, medicines, medical comforts, instrunu'uts disinfectants, and other things proper and necessary for disaises and accidents incident to sea voyages and for the medical treatment of the steerage j)assengers during the voyage, with written directions for the use of su(di medical stores. " (2.) The medical stores shall, in the judgment of the emigration ollieer at the port of clearance, be good in e duly autho- rized for the purposes of this Act unless — " (a) he is authorized by hiw to [a-acti-ie as a legally qualified medical practitioner in .some part of Her Majesty's dominions, or, in the ca.se of a foreign ship, in the coimtry to which that ship Iwlongs : and " (ft) his name has been notifitd to the emigration officer at the port of clearance, and has not been objected to by him : anil " (c) he is provided with proper surgical instruments to the !«atisfac- tion of that officer. " (3.) When the majority of the steerage passengers in any euiigraiit ship, or as many as three hundred of them, are foreigners, any medical practitioner whether authorized or not may, if approved by the emigra- tion officer, l)e carried therein. " (4.) Where a medical practitioner is carried on board an emigrant ship he shall be rated on the ship's articles. Wf T 1 boiinl exi'oi'ils lurd un cniignmt I89i.] 57 & 58 VICT. c. 60.— STEWARDS AND CREW. 955 "(5.) If any requiremeut of this section is not complied with in the case of any eniigiunt ship, the master of the ship shall for each offence be liable to a fine not exceeding one Imndred ponnds. "(G.) If any person proceeds or attempts to proceed as medical practitioner in any emigrant ship without being duly authorized, or contrary to the ree provided, to the safisi'action of the emigration officer ,it the port of clearance, together with ;i projx'r supply of fuel adequate, in iiis opinion, for the intended voyage. " (4.) Every foreign emigrant ship in whi<'h as many as one half of tlie steerage pas.sengers are British subjects, shall, unless the master and (illicers or not less than three* of them understand and speak intelligibly the English language, carry, if the number of steerage passengers does not exceed two hundreil and fifty, one person, and if it exceeds two hundred and fifty, two persons, who imderstand and si)eak intelligibly the language spoken by the master and crew and also the English language : those persons shall act as interpreters, and be employed exclusively in attendance on the steerage passengesrs, and not in working tiie ship ; and any such ship shall not clear outwards or proceed to sea without having such interpreter on board. " (5.) If any requirement of this section is not complied with in the case of !'iiy emigrant ship, the master of the ship shall for each offence Ik' liable to a flue not exceeding fifty pounds." 18 & 19 Vict. c. 119. ss. 38, 39, 40. 305. — "(1) Every emigrant ship shall be manned with an efficient Crow of crew for her intended voyage, to the .satisfaction of the emigration officer emigrant ship, from whom a certificate for clearance for such ship is demanded : after the ticw have been passed by the emigration officer, the strength of the crew shall not be diminished nor any of the men changed without the consent in writing either of that emigration officer or of the auperinten- dent at the i)ort of clearance. " (2.) Where the consent of a superintendent 1ms been obtained, it shall, within twenty-foiu- hours thereafter, be lodged with the said cniigi-ation officer. " (3.) If the emigration oflieer considers the crew inefficient, the owner or charterer of the ship may appeal in writing to the Board of Trade, and the Board shall, at the exiMjnse of the apiiellant, apiroint two other emigration officers or two comjieteut parsons to examine into the matter, iit ^j'.iissitfi'tyj Hi' I Medical in- spection of stpcrnge pas- sengers uuel crew. Evidence of bond. 956 57 & 58 VICT. c. GO.—INSl'ECTION BY DOCTOH. [1891. iiikI till) unaiiiinous oi»iiiioii of tlic ihthoii so iiiipoiutod, I'xpivsstd iiiKJir Ihi'ir liunds, Hball Ito (•onclusivo on the point. " (1.) If any requirement of this section is not complied wilii in llic ea.se of any emif^rant ship, the master of that .ship shall for each oiR'ncc be liable to u fine not exceeding fifty pounds." 18 & 19 Viet. e. 119 s. 28. Medical Inspection. [See ,sec. 3G5.] 306. — "(I) An emigrant ship shall not clear outwards or proicwl to sea until — "(«) either a medical practitioner, appointed by the emigration officer at the port of cleanmce, has inspected all tliestociagc passengers and crew about to proceed in the ship, ami lias certified to the emigration oflBcer, and that ollicci' is satisfied, that none of the steerage [Missengers or ciuw appear to be by reason of any bodily or mental disease unfit to proceed, or likely to endanger the health or safety of the other persons about to proceed in the ship ; or " (b) the emigration officer, if lie cannot on any particular occasion obtain the attendance of a medical practitioner, grants written permission for the purpose. " (2.) The inspection shall take place either on board the shij), or, in the di.scretion of the emigration oificer, at such convenient place on shoi'e before embarkation, as he appoints, and the master, owner, or chnrterer of the ship shall pay to the emigration officer in respect of the in.spection such fee not exceeding twenty shillings for every hundred persons or fraction of a hundred persons inspected, as the Board of Trade determine. "(3.) If this section is not complied with in the case of any eniigi'ant ship, the master of the ship shall for each offence be lialjie to a fine not exceeding one hundred pounds." 18 «& 19 Vict. e. 119. s. il. 307. Persons for medical reasons may be relandeil. 18 & 19 Viit. e. 119. ss. 15, 47. 308. Passage money to per.sons relanded for meilieal reasons niav be returned. 18 & 19 Vict. c. 119. s. IG; 2G & 27 Vict. e. 51. s. 11. ' 309. Before an emigrant ship clears outwards or proceeds to sea, the master, together with the owner or charterer, shidl enter into a joint and several bond (in the Act referred to as the master's bond) in the sum of two thousjind pounds (five thousand if non-resident in the British Islands) to the Crown, to si\feguard the Crown from any expenses in rescuing ships wrecked or distressed steerage pas.sengers. IH & 19 Viet. c. 119. s. 63 ; 2G & 27 Vict. c. 51. s. 17. 310. Where an emigrant ship is bound to a British possession tiio chief officer of customs at the port of clearance shall certify on one part of the master's bond that it has been duly executed, and shall for- ward the same to the Governor of the said possession, and the certificate shall, in any court of a British possession in which the bond may 1)0 put in suit, be conclusive evidence of the due execution of the bond ; but any such bond shall not be put in suit in a British possession after the expiration of three months next after the arrival of the ship in that possession, nor in the British Islands after the expiration of twelve months next after the return of the ship. 18 & 19 Vict. c. 119. s. 01. w Ixpiv^^scd under iLspected, as the IT 1894.] 57 & 58 VICT. c. 00.— PUTTING BACK. 957 311. Passengers list.*! are to bo mndc out before clearance. 18 & 19 Vict. c. 119. 8. 10. 312. Lists of additional passengers embarked after clearance are to be made out. 18 & 19 Vict. c. 119. s. 17. 313. A penalty of 20/. was imposed on anyone attempting to gain passage without payment, aiul any such person may be taken before a istice, 18 & 19 Vict. e. 119. s, 18. justi Certificate for Clearance. 314. A ship fitted or intended for the carriage of steerage passen- gers as an emigrant .ship shall not clear outwards or proceed to sea until the :naster has obtained from the emigration officer at the port of cirarance a certificate that all the requirements of this Part of the Act linve been complied with. And if refused such certificate the owner or charterer may appeal to the Board of Trade. 18 & 19 Vict, c. 119. s. 11. 315. — " (!•) The master of every .ship, whether an emigrant ship or Fnciliticsto not, which is fitting or intended for the carriage of steerage passengers, or be given fur which carries steerage passengers on a voyage from the British Islan'* of api)eal to a couit of survey for the port or district where the ship for ^^^'^'^i'- the time being is in manner directed by the rules of that court. " (2.) The judge of the court of survey shall report to the Board of Trade on the question raised by the appeal, and that Board, if satisfied tiiat the requirements of the report and of this Part of this Act have been complied with, may grant or direct the emigration officer to grant a certificate for clearance. " (3.) Subject to any order made by the judge of the conrt of survey, the costs of and incidental to the appeal shall follow the event, " (4.) Where a survey of a ship is made for the purpose of a certi- ficate for clearance, the person so appointed to mak«' the survey shall, if so required by the owner, he accompanied on the survey by some person appointed by the owner, and in such case if the said two persons agree i ; !i : -I 1 i i t' '*' Lr£uijiti.i;r.K.v,if;ii.Sf^ 958 57 & 58 VICT. c. 00.— STEERAGE O. IN V. [mi I 11 Discipline on board. W-'i Sale of spirits prohibited on emigrant shipfl. ,!• there shall bo no appeal to the court of survey in pursuance of this sec- tion. 39 & 40 Vict. c. HO. s. 14. 319. — (1) If iny emigrant shi[) proceiul to sea without the ccrtificato for clearance ; or (A) put into port tlauiaged, and leave with stccmuo pa.ssengcrs without a proper certilieate, the shiii may lie forfeited if I'onnJ within two years. (2) The Board of Trade may release such forfeited ship on piiymiiu of not more than two thousand pounds. 26 & 27 Vict. col. s. l;j, 320. Contract tickets for pas.sengers proceeding from the Hiitlsli Islands are to bo in the form approved by the Board of Trade. IS A 1!) Vict. c. 119. s. 71. 321 gives a summary remedy for breach of any stipulation ia a contract ticket. 18 & 19 Viet. c. 119. s. 73. 322 imposed a penalty for failure to produce contract ticket. IS &, li) Vict. c. 119. s. 74. 323. Penalty for altering or rendering useless a contract ticket whitli is evidence. 18 & 19 Vict. c. 119. s. 72. Reyulations as to Steerage Passengers. [See sec. 365 (1) (c).] 324 gftve power to Her Majesty by Orders in Council to make regulations for preserving order, promoting health, &c., on lioani emigrant ships proceeding from the British Islands to any port in a British possession ; forbidding emigration during cholera or any epiileiiiic disease ; reducing the number of steerage passengers allowed ; and pci- mitting the use on board of water-distilling apparatus. 18 & 19 Vict. c. 119. s. 59. 325. — " (1) Ii every emigrant ship the medical practitioner aidodbv the master or, in the absence of the medical pmctitioner, tiie muster, shall exact obedience to all regulations made by any such Onler in Council as aforesaid. '* (2.) If any person on board — " (rt) fails without reasonable cause to obey, or offends against, any such regulation or any provision of this Part of this Act, or " (6) obstructs the master or medical practitioner in the ext'ciitiunof any duty imposed upon him by any such regulation, or " (c) is guilty of riotous or insubordinate conduct, that iMjrson shall for each offence be liable to a fine not exccetliu<; two pounds, and in addition to imprisonment for any period not exceeding one month." 18 & 19 Vict. c. 119. s. 60. 326. — " (1 •) Spirits shall not during the voyage be sold directly or in- directly in any emigrant ship to any steerage passenger. " (2.) If any person acts in contravention of this section, he sliall for each offence be liable to a fine not exceeding twenty pounds." 18 A 19 Vict. c. 119. s. 62. 327 provides for maintenance of steerage passengers after arrival of emigrant ship. [See sec. 365 (2) (c).] 328 provided for return of passage money and compensation to passengers when passage not provided according to contract. 18 & 19 Vict. c. 119. s. 48. 329. Subsistence in case of detention is provided for. 18 & 10 Vict. c. 119. s. 49. sold directly or in- gers after arrival of for. 18 & 10 Vict. 1894] 57 & 58 VICT. c. 60.— WRECKED PASSENGERS. 959 330. A penalty for landing steerage passengers at a wrong place was imposL'tl. Tlie liuo not to bo under 10/. or exceeding 60/. 18 &, 10 Vict. (.. 119. H. 50. 331. Provisions in case of an emigrant .sliip being wrecked or damaged ill or neur British Islands. 18 & 19 Vict. c. 119. s. 51 ; iiO & 27 Vict. C.51.S. 11. 332. " If i"y passenger, whether a enhin or a steerage passenger, is eithor taken off any ship which is carrying any steerage pa.s.senger on a voyngf from any part of Her Majesty's dominions and is damaged, wn'okcd, sunk, or otherwise destroyed, or if any such pas.senger is picked lip at, sea from any boat, raft, or otherwise, it shall be lawful — " (o) if the port to which such pa.ssenger (in this Act referred to as a * wrecked passenger ') is conveyed is in the United King- dom, for a Secretary of State ; and " (h) if the port is in a Briti.sh i)Ossession for the Governor of that pos.session, or any person authorized by him for the pur- pose ; and " (c) if the ijort is elsewhere, for the British consular officer there ; to defray all or any part of the exiwnses thereby incurred." 18 & 19 Vict. 1. 119. H. 52. 333. — " (!•) If ftny passenger, whether a cabin or a steerage passenger, from any ship which is carrying any steerage passenger on a voyage from any port in Her Majesty's dominions finds himself without any iitgk'ct or default of his own at any port outside the British Islands other than the port for which the ship was originally hound, or at which he, or the Board of Tra. eoniluct. 18 & 19 Viet. c. 119. s. 78. 352. Emigrant runner's coinmission.s and fees. Ibid. s. 80. 353 deals with frauds inducing any person to engage a steerage [wissni'o. 354. Penalty on person falsely assuming to act as agent of the lidnnl of Trade in connection with assisted emigration. Emigration otflct'i's n.'d assistants. EmhjratloH OJfierrs. 355— "(1.) In the British Islands the Uoard of Trade, and in ii British possession the Governor of that possession, may apjioiiit iiiiil iv- move such emigration oHieers and assistant emigration oilicers as sciin necessary for carrying this Part of this Act into execution, uinlcr iln' direction of (he Uoard or Governor, as the case may be. " (2.) All powers, funetion.s, and duties to be exercised or pcrl'oriiind, and anything to be done in pursuance of this Part of this Act liv, tn, (ir liefore an emigration oflicer, may Ix' exercised, iierformed, and (iimc liv, to, or l)efore hi.s assistant, or, at any port where there is no eiiii^'tntidn oliicer or assistant, or in their absence, by, to, or before the chief olliccr of customs for the time being at such port, and in any such ease it sliiiil Ik? the duty of the chief oUicer of customs to do anything which it is tlu' duty of the emigration olliccr or bis assistant to do. " (.3.) A person hiwfnlly acting as an emigration officer under tliis Ait shall in no case be ])ersonally liabU^ for the payment of any iiioiicy m- costs or otherwise in respect of any contract made, or of any legal [im ceedings for anything done, by him in his official capacity as an tniijjiii- tion officer and on the public service." 18 & 19 Vict ■ " Hi) ss. 7. s, [I. } Miill'f uh Legal Procrni, Recovery of 356. " All fines and forfeitures un( .novisions of th' 'irtoftiiis fines. Act (other than the provisions relating; |ia.s.senger .steana i imly) slmll be sued for by the following officers ; (lii.d is to s. v.) [emigration oificcr and chief officer of customs.] " {d) In a British possession any person authorizeil by the Governoiol that possession, or any officer of customs authorized hy tlu' Government department regulating the customs in thai possession." 18 & 19 Vict. c. 119. s. 84. 'ICEUK, [1801, t,L' if lost. 18 He 19 ecrtiiiii nets of ini> 1894 ] 57 * SB VICT. t>. 60— COLONIAL VOYAGES. 961 357. " ^^" ^'""^ "' """'*'>■ •""<'»' >vcct (if im.Hsiigc iikhicn , siilisistpiicc niomy, (iiiiimp'.s, c'()iii|H'ii.«iiition, or I'liNwage ""•• ,o«is limy lit' fOK'il for iimi recovered hel'orc ii coiiit of .smiiinary jnri.s- "»''"'''''■"'•'' .lictioiiliy liny person entitled thereto, or In iiny of tlie oflleeis in'llie Inst ir,',saH\',r"i,,l |,rrtt'(iinj,' seetioii mentioned on belinlf of nny one or more of siieh diinm^'ei. i^erstiiis ">"' '" ""y <''i^e either l>v one or .leveral i)roee(^dingH." IsilOViet. c. 111). H.Hi. 358 K'veH proteetion to person e.xeeutinfj tiie Act. Siip/tlriiieiifnl. 359. ''1"' owner, in the iihsence of ii<;reenient, shall lie ullimiitely re- .[KMisible as U'tween himself and tiie other persons rendered lialile for ninicompliance with this I'art of the Act. 360 deals with the forms to he used and rate of fee.s for survey of -:iiii;niiil siiips. 361 pi'ovides thnt the Hoard of Trade shall prepare alistracts of this i'ml iif tlie Act to he supplied to th(^ masters of emifjrant Hhi|)s, who me to lilw till 111 in n conH[)ieuous place between decks. 18 Si 1!) Vict. e. 119. .s. 61. 362 fj'^''" »'ff«'t't to hyelawH by ImrboiM' authorities of any jiort in the Brilisb Islands from which emif^rant ships f;o. IHSi 19 Vict. c. 1 19. s. 82. 363 Jirovides I'or the exemption from survey of foreign passenger •iiaiiicr (ir emigrant ship when the Hoard of Trade are satisfied the pro- iwdiis of the Act have been substantially coniiilied with by an ofliciul [orcign ."^nrvey. 39 & 40 Vict. c. 80. s. 19. Application of Part .S. as regards Emigrant Ships. 364. "The provisions of this Part of this Act resjx'cting emigrant ^hijisslmll apply to all voyages from the Ilritish Islands to any port out III f wro/jc and not within the Mediternineari Sea." 365, — "(1) This Part of this Act, so far as the same is applicable, Limited appl >W1 apply to every .ship carrying steerage passengers on a coloniaj vova;;eus defined by this Part of this Act, provided that the enactments itiiivof relating to — "(a) master's bond ; "(A) .steerage passengers contract tickets; "(f) Orders in Council regulating emigration from the British Islands, or prescribing rules for promoting health, clean line.ss, order, and ventilation ; " (rf) passage brokers ; " (e) emigrant runners ; and "(./) posting of abstracts, and production of a copy of this Part of this Act, Wl not apply. "(2.) Where the duration of a colonial voyage (as determined under 'liis Part of this Act) is less than three weeks, the enactments relating "(a) the regulations scheduled to this Act as to the accommodation for steerage passengers ; " (4) medical practitioner, stewards, cooks, cooking apparatus, and manning with an efficient crew ; and " (c) maintenance of steerage passengers after arrival, also not apply. (3.) Where the duration of a colonial voyage (as determined under this " is Act) is less than three weeks, the enactments relating to at ion of Part .3. of .\et to I'uloiiial voyages. |!i IPI I : I! ■ m m ii'i Put sauo. 3 p 962 57 & 58 VICT. c. 60.— REGS. BY GOVERXOE. [1894 Modification of pnivisions of Titrt ;J. in their ii|i|ili(>ii- tioii to Hiitish possussioiiH. the issue of provisioos shall not, except as to the issue of wntcr, ii])])lv to any steoni^c pas.scnjrer who has contracted to furnish his own piovisioiis '' IM & W Vict. c. ll'J. s. 9o. 366. — " ( I •) The Governor of a British possession may by proulauia- tion — " (ti) (Iclennine what shall be ('"emed, for the purposes of this Part of this Act, to be t'.ie lengti: of the voyage of any ship carry- ing steemge passengers frt.tiliition as resjiects the said ships i'or the Tenth Schuliilc Id this Act." Sub-sec. (1) refers to steerage passengers from C(i/loii. 368 'f. ^''^^ powei' to the legislature of India to applv Pint .'t. In Jiiilinh India. 17 .*t 18 Vict. c. 101. s. 288. Fishing Boats. PABT 4. is the merging of Mercliant Shipping "Fishing Boats" Ad, (10 A: 17 Vict. c. 41), and Part 4. of 17 & 18 Vict. c. 104. By .sec. ;i72, this Part v" the Act is not ajt|>licalile to the colonies nr Svotlaiid. 369- Application of Part 4. is — («) to nil fi.shing Ijonts ami to the whole lishiiig service; and partly [b) to all ti.liiiif; lionise! 2o tons tiinu'ige and upwards ; and partly (r) to fishing ImiiiIs iK'iiig trawlers of the same tonnage and ujiwards, and where so i .vpressly pre- \ ided, to fishing boats being trawlers of whatever tonnage. 40 iV: -17 Virt. e. 4 i . s. ;i. 370 gives the definition of " fishing bout," " second ' iimnt back to their boats. 46 4 47 Vict. c. 41. s. .31. 380. Appi-ehension of stamen guilty of desertion, absence without kve, wiii'nl disobedience, continued brei'ch of duty and unlawful com- bination. 40 & 47 Vict. c. 41. s. 'A2. 381. Suiierintendent or |)rincipiil Board of Trade oflicer jan deal mth^'anien who refuses to j):()eeed to sea. 40 it 47 Vict. c. 41. s. 32. 382. A .seaman who intends to ab.sent himself is to give notice to nticed : or to have proper sgwmi'nls iM'fore iK'ing taken to sen. See 46 it 47 Vict. c. 41. s. 8. 394 orders all suiK'rintendents to give assi.stnnce in making inden- tunsol' apprenticeships. 46 it 47 Vict. c. 41. s. 11. 395. Ai)prentieeships and agreements with boys to the sea-fishing *rv; (■ lire to Im- made before superintendent, who is to .sitisl'y himself tliat the Act is fuUilh'd : that the master is a lit person : that the Iwy i» not luidcr 13, is of suiHcient health, itc., and ihat the nearest ^■latil)ll!^ or guardians of the boy assent. 46 it 47 Vict, c 41. s. 4. 3f 2 I! ill'! 964 57 & 58 VICT. 0. 60.— SKIPPER'S CERTS. If V' [1894. 396, 397 give powers to siiiMTiiiteiKlcnt in his own nivnie tn cnfdicc by proper lej^al proceedings sea-fisliing l»oys' indentinvs or ii. 46 & 47 Vict. c. 41. H. 10. 398 prohibits any persi^n from t; '.ng money for ai)prentic('siiii)s iiml boys' agreements. 46 & 47 Vict. c. 41. s. 7. 399 deals with agreement witii seamen on trawlers of 2o tons ami upwards. 4(5 & 47 Viet. c. 41. s. 13. 400, 401 deals with the form, |)erioil, condition, ami niode df entering into agreements. /6/rf. and s. 11. 402 agreements bv owner, or for service of two or more fisiiiiiglionts 46 & 47 Vict. c. 41. s. 15. 403 deals with " running agreements," where the voyage averagis less than six months. 46 & 47 Vict. c. 41. .s. 16. 404. Endorsement of engagements and discharge on running Hgrec- ment. 46 & 47 Vict. c. 41. s. 17. 405, 406 provides for a rei)ort hehig made l)y the skipjx'i' an to tlie Boanl of Trade he has l)cen well conducted on lioard liie lioats lie has served. Sec 46 & 47 Vict. c. 41. s. 40. 416. A register of certificated skippers and second himds to lie icept by Board of Trade and admis.sjble in evidence. 46 it 47 Vict. e. 41. s. 41. 417 provides for Board of Trade regulations as to coiivcvanee of fish from trawlers. :t!''i!i- PART 5. (sees. 418 to 463) is a commingling of the I'lisscnfjcrs Ait (18 & 19 Vict. c. 119); Merciiant Shipping Acts, 18(12 {'Jo iV.'6 Vict. c. 63), 1871 (34 & 35 Vict. c. 110), 1^73 (3(i it 37 Vict. c. 85.), 187(i (39 it 40 Vict. c. 80.), and 1890 (53 Viet. c. !>.). As to application to colonies, str .sees. 418 (2), 467 (5), 458 (li). Collision reg«lation». Safety — Prevention of Collisions. 418. — "(1) Her Majesty may, on the joint recominimiation of the Admiralty and the Board of Trade, by Order in Council, make If !M! I 1894.] 57 & .'58 VICT. c. fiO.— REPT. OP COLLISIONS. 965 regulations for the prevention of eoUisions at sea, and may thereby regulate the li};hts to l>e carried and exhibited, the fog siornnls to be rtirried and used, and the steering and sailing rules to he observed by ships, and those regulations (in this Act referred to as the collision regu- lations) shall have effect as if enacted in this Act. "(2) The collis an regulations, together with the provisions of this Part (if this Ac< relating thereto, or otherwise relating to collisions, ih;)li lie observed by all foreign ships within Biitish jurisdiction, and in anv case arising in a Hritish court concerning matters arising within Bi'itii'h jurisdiction, foreign ships shall, so far as respects the col- lision regulations and the saiil provisions of this Act, be treated as if they wp-o British ships." 25 & 26 Vily to the ships of that country when beyond the limits of Biitisli jurisdii'tion. Her Majesty may, by Order in Council, dire(;t that those regulations an(' provisions shall, subject to any limitation of time conditions, and quali;' itions containeil in the order, apply to the 'iiipsof the said foreign country, whether within British juiisdiction or not, and that such ships .shall, for the purpose of such regulations and provisions, be treated as if thev were British ships. 25 & 26 Vict. c. 63. s. 5H. 425. A report is to be sent within 24 hours of the occurrence to the Board of Tnide of accidents involving loss of life or of serious personal injury, cr of injury affecting the .steamship's seaworthiness. 17 & 18 Vict. c. 104. s. 326. 426. Notice of the loss of any British ship is to be given to the Board of Trade, 17 & 18 Vict. c. 104. s. 327; 3(5 & 37, c. 85. s. 22. 1427 deals with life-saving appliances and rules to be made by the Board of Trade, which are to be laid before Parliament. But thes« rulen are not to apply to Ashing boats registered under Part 4. i^!! !l 'i i ti: II- fir III iiilh 'MM IS:> Marking of deck-lines. 966 57 & 58 VICT. c. GO.— DISTRESS SIGNALS. [1894. 428 provides it shall be the duty of the owner or master ol' nvpiv British ship to see that his ship is provided, iu accordance witii tiie rules for life-saving appliances, with such of those apiiliances as luiviiig icgiird to the nature of the service ou which the ship is employed are best ailapted for securing tlie safety of crew and passengers. 429. A consultative couuuittee, to be appointed iu accordance wjtii the 17 Sch., is to advise on the rules of life-saving appliances. 430 provided for non-compliance with the rides, the penalty being a fine up to 100/. 431. A siuveyor of ships may inspect life-saving appliances on any ship. 51 & 52 Vict. c. 21. ss. 3, 1, 5. 432 deals with adjiistmeut of compasses 'Vom time to time, ami supply of hose. 17 & IS Vict. c. 104. s. 301 (2), (3). 433. No one shall place uudue weight on safety valve. 17A1> Vict. c. 104. s. 302. See ante, s. 28G. 434 deals with signals of distress. Her Majesty in ("oiineil niiiy make rules as to what -signals shall be signals of distress, and the sigmiis fixed by those rules shall be deemed to be signals of distress. By mi)}- sec. (2), any master or other person displaying signals of distress e.\(i|it when the vessel is in distress shall pay comix-nsation for iiny lalniiir, risk incurred or loss sustained by that signal being taken as a sijrnal ui distress, e.ff., that help was reipiired. 3G & 37 Vict. c. ^5. ss. 20, 18. 435. Where a ship is a sea-going passenger steamer or eniignuil >lii|i witiiin the meaning of the third Part of this Act, tlie sliij) sinill he piii- vided to the satisfaction of the Boai'd of Trade {a) with means lor making the said signals of distress at night, inchuling means of making flames on the .ship which are inextinguishalde in water, or siieii otlur means of making signals of distress as the Boartl of Trade may previoiislv approve; and (b) with a [)roper supply of lights inextingui.siialili' in water ami fitted for attachment to life-buoys. Sec. 2 imposes n \wm\\\ of 100/. ou the owner, and 50/. on the master, of any such ship going to sea from the United Kingdom without being pi'ovided as above, 3'J k 40 Vict. e. HO. s. 21 ; nnd nee 18 & 19 Vict. c. 119. s. 2' . 436. The Board of Trade may direct any person appointed by tbeiii to record any sea going ship's draught of water : and the master of evin British sea-going ship shall upon her leaving ilock, port or liurlionr, eV( , for the purpose of proceeding to sea, record the ship's drauglit of \fatfr, and extent (jf her clear side in tlie oflicial log-book, and prodiiw tlio record when called ou to any chief officer of customs : He simll aL<« permit the person appointed to recortl the ship's draught to enter the ship. Sub-sec. (5) defines " clear side " as the height from the water to the upper side of the plank of the deck, from which the deptli of Ml as stated in the register is measured, and the measurement of the eliw side is to be taken at the lowest part of the side. 34 & 35 Viet. c. 110. 8. 5 ; 36 & 37 Vict. c. 85. a. 4. Marking of Deck and Load Lines. 437. " Every British ship (except ships under 80 tons register, w- ployed solely in the coasting-trade, ships employed solely in fishing, and I pleasure yachts, and ships employed exclusively in trading or going fi place to place in any river or inland water, the whole or part of *' I t I,, mm. 1H94,] 57 & 58 VICT. c. 60.--DECK-LTNES DEFINED. 9G7 is in miy British possession), siiall bo i)orninnently nnd conspiciionsly marked with lines (in this Act culled deck-lines), of nol less limn I'J indies in length, nnd one inch in breadth, painted lonfiitiidinidly on eacii side aoii(lsliii)s, or as near thereto as is practicable, and iiidiciitinjr tlu^ jiosition of each deck which is above water. "(2.) The ^)per edge of each of the deck-lines must be level with the apjie. side ot the deck plank ne.\t the water way at tiie place of marking. " (.3.) The deck-lines must be white or yellow on a ilark register, t'liiploycd solely in the coasting-trade, ships employed solely in lishiiig,imd |ili'asiiio yachts) shall, before the time heiein-al'ter mentioned, mark upon eacli of her sides aniid.>rovides a |>eiialty for olfeiices in rehit'.jn to innrking of NkkI- line. If the disc is not marked, or if the ship is so lonch'tl as to siihuuMiri. the centre of the disc in salt water, or if the disc is conccalcil, removiil altereil or defaced, except lawfully done, or to escape capture hv mm cih'Iiiv, the tine on the niasti-r of a British ship may he up to l(J()/,, and on ijic owner a like tine. ;{}) iV; 40 Viet. ( . HO. s. 28. 443- 'lie Board of 'rra'Ie shall appoint the coiniuittee of Lloyd's Register of British and F'./reign Shipping, or, at the option of the (mm r f>£ the ship, any other eorjiorat ion foi the siu'vey or registry of sliippinir, or any otiici'r of the Hoard of Trade speciidly selected hy the Hoard in approve and certify on their liehalf from time to time the position of nnv disc indicating the load-line, iV;e., and may appoint fees to he taken. Anil the Boaril may make regulations determining the lines or marks to lie used in connection with the di.sc, in order to indicate the ina.xinnia) hmil line under different circumstances and at different sea.son.s, and flecliiriiii' that this part of this Act is to lia\e effect as if any such line were drawn through the centre of the disc, (ft) As to the mode of marking tlie disc. (c) As to the mode of a|)plying for certiticutes. (tl) Re([niriiig eiitties in log-book and copies of such entries. 53 Vict. c. H. s. 2. Provision as to colonial ships with respect to load-linps. Colonial S/iiji with respect to Load Lines. 444. "Where the legislature of any British pos.session by any iiiiici- ment pro\ ides for th" iixing, marking, and certifying of load-lines on siiips registered in thid possession, and it appears to Her Majesty the Qiiwn that that enactment is based on the same principles as the [jiovisionsdl' this Fart of this Act rtdating to load-lines, and is equally ell'ectivo I'm Hscertnining and determining the maximum load-lines to which those slii|is can l)e safely loaded in salt water, and for giving notice of the loiul-linc to persons interested. Her Majesty in Coiuicil may declare that any load- line fixed and marked, and any certificate given in pursuance of that enactment, shall, with res]}ect to ships so registered, have the snnw effivi as if it had In-eii fi.ved, marked or given in pursimnee of this Part of llii.« Act." 53 Vict. c. n. s. 3, 445 provided that where the Board of Trade certify the laws nnd regulations for the time l)eing in force in a foreign country ami relating to overloading and improper loading are ei|ually effective with the provi sions of this Act relating thereto, Her Majesty in Council may iluvii that on a proof of a .ship of that country having coniidied with those Inwsi and regulations, she shall not when in a port in the IJniU'd Kiiigiioui Ih> liable to be detained for non-compliance with the «iid provii'ions of this A "A, nor l)e liable to any fine which would otherwise arise for non- compliance with those provisions. (2.) provided that this .section was not to apply in the ca,se of ship^ of any foreign cotuitry in which it appears to Her Majesty that correspond ing provisions are not extended to British ships. 53 Vict. c. 9. s. 4. -LINKS, fis94. 1894.] 57 A 58 VICT, c GO.— DANGEKOITS GOODS. 969 446. Diuigerous goods lire not to be iitttMiiiited to be trausiiiitted by any ves.sel, British or foreign, without being distinctly labelled and the natiirt' of the goods notified to the ma-tter, " dangerous goods " being detiiieilas "aquafortis," "vitriol," " napiithii," "benzine," "gunpowder," ■ liicil'iM' iniitehos," "nitro-glyoi-rine," " pi'troleuiu," and any explosives irithin tiif meaning of tiie Explosives Art, 1875 (38 & 39 Vict. c. 17.). [The term " explosive " is said to nu-an gunpowder, nitro glycerine, rlvnaiuitt', gun-cotton, blasting powders, fulminate of mercury or of other iiietais coloured fires, and every other substance used or manufactured with flvimv to produce a |)ractical effect by ex[)losion, or a pyrotechnic effect. (2.) It includes fog-signals, fireworks, fuzes, rockets, ix-rciission caps, .leioniitors, cartridge:! and ammunition of all dcscrijitions, and every adiiptiitiou of an explosive, as defined, and any other goods of a dangerous iiaiiuc] 36 & 37 Vict. c. 85. ss. 23, '2J> 25, 26, 27, 28. 447 deals with jK-nalty for misdescription of dangerous goods; iliH line may be up to 500/. /(till. 448 gives powei's to master or owner of any vessel, British or forei"!!, to refuse to take on board any package he suspects to cont. in diingeroiis goods ; and if brought on board without being properly iiuirked, aD(l without notice of their contents, they may be thrown overboard without incurring liability. Ibid. 449. Dangerous goods not properly sent may be forfeited, and that, lilt hough the owner is not before the court decreeing the forfeiture. 450. N^one to be punished twice for the same offence. Ibid. fMadirig of Timber. 451. 1'" ship, British or foreign, arrives between the last day of Loading of 0(tol)er and the 16th day of April in any year at any port in the •'ni''^'r. I'liited Kingdom from any port out of the United Kingdom carrying as (kk cargo— that is to say in any uncovered space on deck, or in any covered «[HK'e not included in the cubical contents forming the ship's registered lonimge — auy wood goods as hereinafter defined, the master of that ship, aiulalso the owner if he is privy to the offence, shall be liable to a fine not (■.weeding hi. for every hundred cubic feet of wood goods carried in con- Iravention of this .-icetion. Provided that a master or owner shall not be liable to any fine under this section («) in respect of any wood goods which tlie iimster has consideretl it necessary to i)lace or keep on deck during the voyage on the account of the springing of any leak, or of any other (laiiiuge to the ship receivt-d or apprehended : or (A) if he proves that tlw- siiip snilt'd from the port at which the wooNl \\■\t\^■[^ comes into any port of tlie United Kingdom under stress of ucathiT or for re[)airs, or for any other purpose than the delivery of litr chito 39 & 10 Vict. 80. s. 24. '' ' Carriage of Grain. 452. Where a gniiii cargo is laden on hoard any British siiip nil necessary and rcasomihle precautions (whether menlioned in tliis I'art nf this Act or not) shall lie taken in order to prevent the eari,'o Iroin sliil'tlnn. (2.) Jf those i)recautions have not lieen taken in the case nf ni"y Brifisli sliip, the master of the ^hip and any agent of the owiilt who was charged with the loading of (he shi)t, or the .sending her to .-iwi shall each lie liable to a line not exceeding 'M){,)1., and the ownei' of the sliip shall also be liabli' to the same line, unless lie shows I hat he took nil reasonable means to enforce the observance of this section, ami was luit privy to the breach thereof. \',\ &. 11 Vict. c. 1."}. s. 3. 453. Where a British ship laden with a grain cargo at any jioit in the Mediterranean or Hlack Sea is bound to ports outside the Stiaits ot (.iibraltar, or where a Jh'itish shi|) is hiden with a grain cargo (in the coast of North Ainvrica, the precautions to prevent the grain cargo fmni shifting, set out in the IHlh Schedule to this Act [also m 13 iV ■< I Vict, e. 43. s. 4] shall be adopted, unless the ship is loaded in accordance with regulations for Ihe time being approved by the JJoard of 'i'rade, or is constructed anil loaded in accordance with any plan ap[irovc(l liy the Board of Trade. (2.) If this section is not complied with in the case of any sliip, reasonable precautions to prevent the grain cargo of that ship from Jliiftiu" shall lie deemed not to have been taken, and the owner and niaster of \\w ship, and any agent charged with loading her or sending her to swi, shall be liable accordingly to a line under tiiis i'art of this Act. (3.) Nothing in this section shall exempt a person from any liabiiitv, civil or criminal, to which he would otheiwise be subjecl for failing to adopt any reasonable precautions which, although not mentioned iu this section, are reasonably re(piired to prevent grain caigo from shifting. 454. — " (f •) B<*fore a British shiji laden with grain cargo nt any port in the Mediterranean or Black Sea, and bound to ports outside llie ^itraits of Gibraltar, or laden with grain cargo on the coast of North America, leaves her final port of loading, or within forty-eight hours after leaving that port, the master .shall deliver or cause to be delivered to the British consular officer, or, if the port is in a British possession, to the chief officer of customs, at that port, u notice stating — " (a) the draught of water and clear side, as defined by this Partof this Act, of the said .ship after the loading of her cargo hns been completed at the said final port of loading; and " (/>) the following particulars in respect to the grain cargo: namely, — " (i) the kind of grain and the quantity thereof, wlmii quantity may be stated in cubic feet, or in quarters, or bushels, or in tons weight ; and .... *' (ii) the mode in which the grain cargo is stowed; .' . ". and " (iii) the preuuutiuutt taken agaiiist 8hii'uug. ' ' ' f 1894.] 57 & 58 ViCT. c. 60.— UI^SEAWORTIIY SHIP. 971 T I " (2.) Tlie lua.stcr shall also delivtaii similar iu)ti<'ttto tlin proix-r offlci-r of ciistonis ill tlu' Uiiitwl Kingdom, togotlu-r with tin- rcjiort rt!(|iiirf(l to iH'umdf hy the Ciistoiiis Coiisolidutioii Act, 187(>, on the airival of the 39 & 40 Vict. shii) in the Uiiiteil Kingdom. >■'• ^ItJ- '«'• oO, 51 . " (;{,) Every such notiei' shall be .sent to the Hoard of Trade, as soon as prai'tii'ahle, hy the olHeer receiving the .same. "(1.) If the master fails to deliver any notice recjuired hy this section, or if in any such notice he wilfully makes a false statement or wilfully omits 11 material particular, he shall for each offence he liahle to a line not exceeding one hundred pounds. "(.x) The lioard of Trade may, hy notice published in the Lniulon Oazcltr, 0" in any such other way as the Hoard think e.vpcdient, exempt sliips huleii at any particular port or any class of those shii>s from thi.s section." l.i & 11 Vict. e. 13. s. 0. 455. " For .securing the observance of the provisions of this Part of Power of Board this Act with respect to grain cargo, any ollicer having authority in "'.".'^ "' tiwt iH'li.ilf from tlu^ Boanl of 'I'radc, either general or special, shall ha\e ,,r,jvisi()ns a.s l«wt'r to insi)ect any grain cargo, and the mode in which the .same is to ciirriagu of stowed, and for that purpose shall ha\e all the powers of a Hoard of gruin. Tmdi' inspector under this Act." 43 & 11 Vict. c. 13. s. 8. 456. " F*'r tilt' purpose of the provisions of this I'arl of this Act with Dpllnition of rp.*|)i'ct to grain cargo — g'"'"". ^^• "The expression 'grain' means any corn, rice, paddy, pulse, seeds, nuts, or nut kernels. " The expression ' .ship laden with j^rain cargo' means a ship carrying a cargo of which the portion consisting of gi'ain is more than one third of the registered tonnage of the shij), and that third shall be • computed, where the grain is reckoned in measures of r ipacity, at the rate of out! hundred cubic feet for each ton of registered tonnage, and where the grain is rcekoiu'd in measures of weight, at the rate of two tons weight for each ton of registered tonnage." 43 & 44 Viet. c. 43. s. 10. Unseaioorthy Ships. 457. — " (1.) If nny person sends or attempts to send, or is party to S«ndmg un- bending or atteini)ting to send, a British ship to sea in hucIi an ""sea- ^f'|^°' ^^ ^ worthy state that the life of any person i> likcdy tobe thereby endangered, misdemeanor, W shall in respect of each ulVcnce be guilty iii a misdemeanor, unless he proves either that he used all reasonable means to ensure her being sent to sea in a seawoithy state, or that her going to .sea in such an unseu- worthy .state was, iimh'r the circumstaiu'es, reasonable and ju-itifiable, and for the purpose of giving that proof he may gi\i' evidence in the same manner as any other witness. "(2.) If the inastei' of a Uritish ship knowingly takes the same to sea ia such an unseaworthy state that the life of any person is likely to be tiii'R'by endangered, he .shall in respect of each offence be guilty of a mi,s(lemeauor, unless he proves that her going to sea in such an unsea- worthy state was, under the circumstances, reasonable and justifiable, and for the puriMJse of giving such proof he may give evidence in the same manner as any other witness. " (3.) A prosecution under this section sliall not, except in Scotland, be instituted otherwise than by, or with the consent of, the Board of Trade, or of the Governor of the British possession in which the prosecution takes place. i|, i ■ f :i I ill lli 1 I 972 .•57 & 58 ViCT. c. 60.— DETAININT, SHIP, [1S94. " (4.) A iiiisdrini'iinoi' iiiidi'i- lliis s»>ctioii simll not In- piniislinblc upon smninnry ronviction. "(5.) This sfdioii sliiill not ujiply to any sliip fin|)loyi'(l cxclibivelv in trading; or goiii}; from placf to plact' in any y'wcv or inlniiil water df which the wholo or partis in any JJritisii possession, " •< I iV ,'{,j \ k t c. 110 s. 11 ; 3J) it 10 Vict. c. HO. s. 4. 458. An olilifjation was placed on the shipowner ami crew to use nil reasonable (dl'orts to secure scawortliiness. {It) Same as {'>) hIkivc, 459. Wliert; a Miilisli ship liein,'.^ in any port in the I'niiid Kini'ddni is an unsafe, ship hy r<'asoii ol the del»!cti\c eonthtion of her luill, I'liiiji,. ments, nineliinery, or iieeause of impro]ier loadinj; or o\crl(i!i(liii(r, mhl therefore unlit to |)roceed to sea without > 'rions li;ill he ^iivcd on the nuister a written statement of the ^^rounds of deienlion. (c) Tlic EoHi'd of 'I'rade on receiviiif;' the report may order the, vessel in 1,,. relen.sed, or finally iletaineil, r)r detained only until I he ii.'ci»;iiv remedies are carried out, or tlu^ carj^o uidoaded or icNiiiilcd. (rf) Before the order for final detention is made, a copy ni' the updri is to he served on master of ship, who within .seven days alier tlmt service may ap|>eal to the conrt «( survey for the port or disirici where the shi|» is (h'tained. (<•) Before the survey is mach' the \msWr may require that a person .seh'cted out of the list of assessors should actompauy the surveyor, and if they a<;ree, the shij) shall he re!ea>eil or detained aeeordin};ly ; if they dill'er, the Board of Ti.ide niav net RS if the recpiisition had not been math', the .same riffhl of iip|)eiil jigainst the report of the surveyor remainiufj. (f) Wheie a ship I,'* pro- visionally detained, the Boaid of Trade naiy at any time refer tlie iiiiilter to the conrt of survey. (//) 'J'he Board of Trade, if sati.-licd ilwt the .ship is not unsafe, uuiy order hei' to be I'cleased. (12.) Aiiv pei-oii appointed by the Board of Trade as a detainino; oflieer shall Imve same power as the Board of Trade has of provisionally detaininf; ii ship and a])pointing a peison to survey her; and if he thinks she is not niisal'e, he may order her ndease. (',].) A detainin"; ollicev is to report to ilie Board of 'I'l-ade any onler made by him for detention or r(dea>e. (I.) ,\n order detaining; the ship, provisional or linal, is to be served ns soon iis niivy be. (5.) A detained ship is not to be released by reason of her British register beinfjl snbsccpiently clo.sed. (G. ) Board of Trade iiiav, with the consent of the Treasmy, appoint detaininj; olliceis, and miiv remove the same, itc, and (7.) cletaining otticers are to have the ."uiiie power as a person appointed by a court of survey to surxcv a ship. 39 & 40 Vict. c. 80. s. (>. 460 deals with liability for costs and danuiffcs, c.f/. costs lollowiiif; the result. If there was no reasonable cause for the detenlion, ilien costs and eompen.sat ion are to be paid to the sliipowuer; if il appears thiit the ship was unsafe at the time of detention, the owner of the ship !.•* liable to the Board of Trade for Iheii- costs incidental to the survey, '.vhich nuiy be recovered as .salvage is. 39 &. 40 Vict. c. HO. s. 10. Stv also 33 & 34 Vict. c. 90. s. 23. 461 gives power to Board of Trade to require from persons complain- ing that the ship was unsafe security for costs, except where complaint i« made by one-fourth (being not less than three) of the seamen of ilip ship and is not a frivolous complaint. 39 & 40 Vict. c. 80. s. 11. 1H94.] 57 & 5H VICT. v. 00.— SPECIAL SHTPPFNG IVQS. 973 462. The nbovp prDvL^ions as to detention, iiic nppliciihio to foreign ,ihi|is l();iilin<; iit ii IJnittMl lvin;{\\i\ shippinj; casualty may he held in h'ni/ldiit/, not only when llu^ casualty takes place on the coast iifllie United Kiiifjdoni, hut also where a sliij) is lost in any part of tlie world, and a witness is found in the United Kingdom. 17 & IH Viet. c, 104. s. 432; IVJ Si 40 Vict. c. 80. s. 2!). 465, 466 deal with preliminary iiupiiry info and formal investigntioii of sihiiiping casualties, 17 «& 18' Vict. c. 101. ss. 432-448 ; 39 &, 40 Vict. e. 80. s. 30. 467 deals with iip]iointment of assessors foi' investigating shipping casualties and their removal finm otlice. Ibid. 468 deals with inquiry in cases of loss of life happening to or on board any boat htdonging to a iishing vessel. And that Hoard of Tnulf may order inquiry. Scr Ki it 47 V'^icL. e. 41. s. 45. 469. Power of Board of Trad(> to suspend or caiiccd the certificate of Hiiy master, mate, or engineer convicted for unv olfcnce. 17 it 18 Viet. I'. 104. s. 242 ; 25 & 26 Vict. c. (J3. s. 23. 470 gives power to the court of investigation, with tlie eon.sent of Olio assessor, to cancel or susjiend the certificate of a master, mate, or engineer. The decision to be statc consent of that owner, aj;ent,or eousii;nce. (1.) 'I'lie court may also make such order and retinire siieli Mciuiiv in respect of the costs of the mailer as the court thinks lit. Srr 17 Si. IN Vict. c. KM. H. 210; 25 & 20 Vict. c. 03. ». 23. 473. A master, male, oi' enfjineer whose ecrliticale is cm lied oi' suspeiuh'd hy any court t>v hy the Hoard of Trade shall diiivtr lijs ccrtilicntc — («) if cancelled or suspended liy a court to that couit, on (liiiiiirid; (b) if not so demanded, or if it is (iincelicd or suspcndid hy ilie Boaril of 'i'rnde, to that Hoard, or as that Hoard dinct (2.) If a nuistei', mate, or cnpiuecr fail to comply wilh this vertjdii, lir Hhnll for each offence be liable to a fine not excecdinji ol)/. 2.') & 20 Viit c 03. s. 24. 474. Tlio Boaril of Trade may, if they tliiiih that the justice of the casi' rccpiircs if, reissue and reliirii the cerlilicale of a mii>l('r, male, or ongineer which has been cancelled or siisp'tided whether in llir I'liiicd Kinplom or in a Briti.sh possession, or shorten the ♦imu for wliicli it is suspended, or grant in place thereof a certificate of the same or iinv lower praile. 25 & 20 Vict. c. 03. s. 23 (4). 475 gives jiower to the Board of 'J'raile in any case where luidir tlii.s Part of this Act a formal investigation into a shi|)ping easnally or ini inquiry into the coiidiiet of n master, mate, or engineer has been licid, to order a rc-hearing on fiesh and important evidence, or if they siis|H'(t tluiv has been a miscarriage of justice. (2.) The Board of Trade may order the ca.se to be re heard eillicr liy the court or authority by whom the case was heard in the tirsi iiislmuc, or by the wreck commissioner, or in Iviuilautl ami Irtlitm! by tlie lli};ii Court, or in Scot/and by the .scnioi' Lord Ordinary or any oilier jii(lf;eiii theCoiirt of Session whom the Lord J'resident of that court nmy iipiioiiit. (3.) Where on any such iincsligation or in(|iiiry a decision lias iit'cii given with respect to the cancelling or susiiension of the certiiicate of u inas;er, nuite, or engineer, and an application for a re-hearing midiT tliis section has not been made or has bei-n refu.sed, an appeal sliiill lie from the decision to the following courts: (a) If given in /jii/luml or by a naval court, to the High Court ; (h) if the decision is given in *9<"0ncy or niiscondiu't to mnke on thf I'lut <»1" miislcis, iimlfs, or cn^jiiiccrM of slii|is, in tin- lollowiii;! iiii|uiru'>< into (^■t^; llltlllfly, "[(t.) Wlifrc a >lii|>wrt'('k or ciiMiiilly ucciirs to a Hritisli Mliip on or lU'ar the coasts of tlu' IJiilisli |>(i>Ms«.ion or ton Hritish sliip nUictrs. in the course ol' a vovaj^c lu a port within tlic Ilriti.sl) pos- session : " (A.) Where a shipwreck or cusiialty occurs in any part of th(! worhl to u Hrili^ii siiip rej;islercil in the Hiilish possession: " (c.) Wheresonieof Ihecrewdf a Hritish sliip wliicli hasln'en wreeketl or to which a casualty liiis occiirreil, and who an; competent witnesses to the I'acis, are found in llie Hrilisli possession : " ((/.) Wlicre tlie inconipetcncy or misconduct has oceuri'ed on hoard n ISritisli sliip on or near tlie coasts of the liritisli posses- sion, or on lioard a Mritish sliip in the course of a V(>ya<;«^ to a port within the Hi-itisli possession : " (r.) Where the inconi|ietcncy or miscondni'l luis occurred on hoard n IJritish ship rc;.''istcrcd in the Hritish possession : " (/•) When the masler, mate, or cnv triliunal soauthori/.ed shall lane the sana' jin'isdiction uvi'i' the matter in ijUestion as if it hail occui'rcd within their ordinary juiiMliction, Itut suliject to all provisi(uis, restrictions, and conditions wliieli would ini\t' heen applicable if it iiad so oeeuricd. "(It.) An iiKpiiry shall not he held under tiiis sin-tion into any nmttcr wliicli has once heen the suliject of an investipition or incpiiry and has liw'ii reported on hy a competent «'ourt or trihuiail in any part of Her Miijcsty's dominions, or in respect of whi<'h the ccrtincat*- of a master, matt', (ir en;iineer has liceii cancelled or suspended liy a mual court, "(4.) ^^'her(Mln investijjation or imiuiry has heen connuenced in tlu? I'liitcd Kingdom with reference to any matter, an in(piiry witli refer- (Miue til the same matter shall not lie held, under this section, in a Hritisli |)osst'ssion. '' (.).) The court or trihnnal Imldin/jan inquiry under tliis section shall have the same (lowcrs of cancellin;^ and suspendin;j ccrtilicatcs, and shall cxiTcise those powers in the same maniu'r as a couit holdin;; a similar iiivcstijjation or inipiiry in the I'nitcd Kinploni. " (li.) 'I'lu' Hoard of Trade may order the re-hearinjj of any inquiry luuler this section in like nanincr as they may ordci" the rc-hcarin) from a decision affectin^j the I'ertiticate of a master, mate, or enfjineer if that certilicatc has not heen fjranted either in the United Kin};dom or in a Hritish possession, umler the authority of this Act. "(7 ) The appeal shall lie conducted in accordance with such conditions and rci;uhitions as may from time to time lie prescrihed by rules nnule ill rt'liition thereto under the powers contained in this Part of this Act." 45 & 4(5 Vict. c. 7G. .ss. 3, 5, 0. Sic ante, 53 & 5i Vict. c. 27. s. G. 479. The Lord Chancellor may with the consent of the Treasury (as to fees) make general rules for carrying into effect the enactments m mm^ if m I III! I . I iini II ■ 976 ru «c 5S VTCT. c. no.— NAVAL CTS. OF TNQUmY. [1894, 11 It relntiiig to fonniil invostiwutioiis aiul to tho ro-liciirinj; of, or an npixal fi-om any invostigiitioii, wuU'V this Part ol' tlic Act, and in itiuilculiif with resppot to tliC appointinont of asst's.sors, procoilurc, iunl plncc wlioro thfsfi iiivcstifriitions arc to lie held. 3i) it 40 V^ict. c, HO. s. ;(() 480 K'^*-'S tliP ('a.ses in wliich naval courts nmy bo sumniontd on flic liifjli seas or abroad, cr/. tliat flicy may bo -iininnonod by nnv olliici' jn ooniinand of any of Her Majosty's y'lip.s on any foroipciis to require inmu'diate inv.'^ti^'ation is made by the master, ccrtilicated mot)-, or o\w or more scinicn of a British ship; whenever the interest of the owner of the ship or (nrfjoscfin to require it; whenever any British ship is wrecked, alia" i' ..cd, or lost at or neai- the place where that ollicer may bo; or whenever anv of the crew of anv Ibitish ship which has been wrecked, abandoned.Or U,k{ nrriv«" at that place 17 .t IS Vict. c. 104. s. 200. 481 gives the constitution of na\al courts as not inoie tliaii live, nor less than three mcndiers. If possilile one to be an ollicer m tjie naval service of Her Majesty not below the rank of lieutenant, one a con^iiliii' officer, and one a umster of a ihitish merchant ship. Hut the (ourt i^ not to include the umster or consij^nee of the >*hip to wliicli the partii- coinjilained of or comjdainini; lielong. 17 i^ IH Vict. c. lol. s. 2t)l. 482. The functions of a naval <'onrt are to investijiate the iiimm- of the wreck, ubundonment, or loss. And a naval court may administer an oath. 17 & 18 Vict. c. 104. s. 2fl2. 483. The powers of the navid court are set out. It can remove liie uinster : or ennctd the certiticate of any master, mate, or enf;ineer ; (li>. charge s seaman ; decide any question as to waives, or lines, or forfeiiiucs It maj exercise the powers 1. s. 18 ;'34 .( IW} Vict. c. 110. s. K. 484. A re])ort of all |iroceediuys f)f naval courts is to be miiI liuiiu' to tiie Boi-,rd of Trade. 17 X 18 Viet. c. 101. s. 2«5. 485. A penalty is inqiosed on all picventing couq)lainl or obstniit- inp; investigation to or by any na\al courts. 17 S: 18 Vict.c. lOl.s.'JCli. Application of 486. "The provisions of this Part of this Act with regard to iiaviil provisioHH a8 lo courts on the high .seas and abroad shall apply to all .«ea-j;oinf; ship- imval pourtH. registered in the I'nitcd Kingdom (with the except iuu in tlieinijipiiciitidn, elsewhere than in Srotfinn/, ol tishing boats excliisi\cly enqiloyeil on tin' coasts of the I'nitcd Kingdoin) ami to all ships registcrt(l in n Uril'^L posseshion when those ships are out of the jurisdiction cf their ns|H'ctivt' GovermiuMits, and wher.' tb"y apjily to a shi)), shall apply to the o\vik'I>, master, and crew of that snip." (2.) For the pur|iose of the said |)rovisions an nnregistt red Hiiii>li ship shall be deemed to have been regi.-lered in the I'nitcd Kingiloni. 487-489 ifi^c the conslitnticui of courts of snrxcv. r.;/. u jiuijic twitting willi two assessors. 'I'he judge, any as^o^sor ol the court, iiinl i"iy jM'rson appuinled by the judge may survey a ship or appoint iiin comjM'tent per.son to do it; and report, and the jmlg<' is to Imvc the same powi r as the Board of Trade ha\(' to order a vessel t(. 1n' relea.sed or detained with concurrence of one as.s<'.ssor, and tlii' Lunl Chuncellor raav make general rides to carry into effect this provijiioii and as to fees, \to. .')» ^ 10 Vict. e. 80. S8. 7, 8, 9. ?i QUIRY. [1894 is tl> ll(^ >iClll llDIIIC \m.] 57 A .W V!CT. (!. HI) — DLVttY. GOODS : FKEIQHT. 977 490. Scientific referees. If tin- Houi'd of Trudo ooiiHidcr au Hp|)tiul iiiiiLOiui of Hurvfty involvo.s ii <|ii(>stioii of const nictiou or doHigii or of ^iciitilii' ower to shi])owner to enter and land goods on default by «mvv of goods to do so. 25 & 20 Vict. c. 63. s. 67. 494. I !■*' g<>o to continue subject to a lien for might if shiitowncr gives notice to that effect to warehous<'man. 25 & 26 Vict. c. «3. ». 68. 496 provides for discharge of lien. 25 &. 26 Vict. c. 63. ss. 69, ''0. 496 gives provisions as to deiKi.sits by owners of goods of the sum ilaiiiuKl by the shipownei, and us to notice within 15 davs to retain it. 25&26 Vict. c. 63. 88. 71, 72. 197, 498 •'<"«• with sale of goods by wareliousemen and application III pMHtrds. 25 it 26 Vict. c. 03. ss. 73, 71, 75. 499 gives to the warehousenuin a right to rent : aiul also at the n\n\>f. (if the owner to do a things necessary for pro[H'r custody and I'rcscrvation of the goods. : \ 20 Vict. c. 03. s. 70. 500 cxoiicnitcd warehouseman from taking chaige of any goolii' iMiuiid t" see to the validitv of any l:-i ulnied by any .shiiK)wner iinilir ilijs Part of the Act. 25 \ 2(5 Vi-.-t. ■:■. 'j3. s. 77. 501 ^av'.d the powers given under local Acts toany harbour authority, to 2') A 2(i Vict. c. 63. s. 7H. I'AR'I' S (sees. 502 to 5(tt»). See Part 9 of 17 & 1« Vict. c. 101. Hv sec, 509 this Pari of this Act cvtends to the whole of Her Miijcsty's dominions unless the context otherwise rv ,uM'es. lAnhiliti/ of Shipowners. "•02. liiniitation ot shipowner's liability for damage to goo«ls; e.g. fhirt'it lii;p|)eus without his actual fault or privity, where lost by fire; I where the gojils are gold, silver, diamouds, Sic, the tru»' nature of "liicli have not been declareil to the owner or shipiwr, ai'c lost or ilnnmgoil by robWry, embozzleineut, or secreting thereof. 17 & IH Vict. ' 101, s. 503. S 2340. 3 Q m'\ m I! iiiiii HI i: 978 57 A 5H VH'T. e. OO.— LIAHILITY OF ()W\E1{ , iss of iji,, injnr}, or (Ininngt'. 17 tt IH Viol. <•. i(H. ss. oOJ, TjOCi ; 2") iV 25 Vict l'i(Wt'rnfCour,8 to CDUMillilnto (■iHiniH iiji;nii)St owners. c. 03. s. 51. 504. " Wl ro nny liability is nllogo'l to have boon inctnicd liy ti„, owiior of a Urilisli or i'oroif^n Hliip in nsiwct of loss n'" litV, piiMPiini injury, or loss of or damage to vc^ssi'l or goods, and scvcnil cljiiiav. ,,1,. mndo and npprehondcd in resj)oct of that liability, then the owik r niav apply in Enqland and Ireland to the High ('onrt, or in Scotlaiid Ut the Conrt of Session, or in a TJritish possession to nny ooniiM'tont ((nut, iiii<| that eoin-t niny doterniino the amount of the owner's liability, and in;iv distribute that amount ratoably among the sevenU clainianis, juid niav stay any prooeetlings ponding in any other conrt in rehition to the siiiur matter, and may proceed in such manner and subject to such r('j:iiliitiiiiih as to making persons interested parlies to the proceed iii;:s, iiml us i,, the exclusion of any claimants who do not come v.-itliii Minin tiis'p and as to re(|uiring security from the ;:■.". ner, niul is |i ,.;imii(>iiI (irim costs, a.s the court thinks jus;." 1/ Si 18 Vict.c KM. s. 51 1. 505. All sums paid on account of damages in respect of \vlii( h ilio liability of owners is iimit<>d, and all costs in relation fluM-eto, niav !»■ brought into account among part owners of the s.'une slii|), I7 ,1 n Vict. c. 104. s. 515. 25 1^ :•(! . I'of tlio 506. Insurance against liability of owner not to be inv. Vict. c. G3. 8. 55. 507. J'l'*' iiassongers li.st, in respect of lo.ss of life (fee pa.ssengers on l)oard ship. 25 & 26 Vict. c. 63. s. 50. 508. Nothing in this Part of the Act waste lessen the iialiilitvof tlic master, &c., he being also part owner ; or to extend to any Hrilish ship which is not recogni.sed as such within the moaning of the Act. 509- This Part of this Act shall, unless the context othcrwi.sc re- quires, extend to the whole of Her Majebty's dominions. PART n (sees. 510 to 571) is taken from 17 i^ IS Vict. c. 101. (I'ait s,, 18 & in Vict. c. 91 ; 25 &. 20 Vict. c. 03. ; 35) it 10 Vict. c. SO. ; am! 40 and 41 Vict. c. K]. Wreck and Salrage. — Vessels in Distress. 510. The definition f)f ** wreck ' and "sahage" is given. 511. Designates the duty of the receiver of wreck where the \csmI i> wreckocii, stranded, or in distress on or noiu- the coasts of the I'liitiil Kingdom. 17 »t 18 Vict. c. 104. s. 441. 512. Power is given to the receiver of wreck in case of vessels in distress to denu»nd a.'-sixtancc from any person.^' or master of any ve-.*! or carts, Ac, near at hand. 17 it 18 Vict. c. 104. s. 112. 513. Power is given to all persons to pass over adjoinin;: land* tr the purpose of rendering assistance. 17 A 18 Vict. c. 101. >. IKi. 514. Power is given to the receiver of wreck to suppress |iliui(leiaiiii disorder by force. 17 & 18 Vict. c. 104. s, 144. 515. Liability of inhabitants for damage in case of a vessel piiMidnHi 'llie IJiot (Damages) A« I, 188(1, .s. 0; 1 7 A' IS Vict. c. 101. s (77 1 1)0 inv, ■ 25 & :'(! to su|)|)ri'>siilnnilii'aiiii IS94.] 37 A 58 VICT. e. (50— CLAIMS TO WRECKS. 979 516. J ''*^ l)owor.s of roccivcr of wrock in hisiibsenceiiiftj' beexei'ci.SiHl hy tluMiliief olHcor of (Mistom.s, prinuipal olllecr of coastguard, officer of ii'ilttiKl rcveinio, sliorir J.l*., or commis.sioiitHl ollicer, imvui or inilitury ; ami tLey becoinu agent or agents for the receiver. 17 & 18 Vict. c. 101. s. 445. 517 jirovides for examination in re.'^pect of ships in distress by ni'oivt r of wreck or other per.son acting for liiui us soon as may bo after tliecasimlty and making a rei)ort to the Hoard of Trtule ami Lloyd's. i; A 18 Vict. c. 104. s. 448 ; 39 & -40 Vict. c. 80. s. 31. 518 pronsion as to dealing with wreck uiund iu the United Kingdom. IJ & 18 Vict. c. 101. s. 450. 519. A. |M'nalty for taking wreck at time of ca.sualty is im^Kised. \lk 18 Vict. c. 104. s. 44:{. 520. Whoii a receiver takes possession of any wrecik he shall, within ifi Immiis, give notict! of wrtick at tlu; nearest custom house, and the viilucol' the wreck. 17 h 18 Vict. e. 104. s. 452. 521. The owner of wreck is entitled to have it delivered to Inm, on liiviiig silvage fiH»s, &c. ; and in the ease of a foreign ship, in absenc*; of till' mviier, i^c, the consular officer of that country is, as to custoily of ihe ^'ooiis, to be deemed the owner. 1 7 & 18 Vict. c. 104. s. 470 ; 18 & 19 Vide. 91. s. 19. 522. hnmediiite sale of wreck by ivceiver in ci-rtain cases allowed miliT,*'.//., if unart of Her Majesty's dominions, except Crown to iiiplacis w.'re Her . 'ajesty or any of Her Royt.l predecessors has guiuted liiimy other person this right to that wreck, 524. Notice of unclaimed wreck is to Im' given to admirals, lonis of ill'- inuiior, and other jjcrsous entitled. 17 & 18 Vict. c. 104. s. 471. 525. If not claimed within one year, the unclaimed wreck is to 1h) ilis|K)s('(l of; if claimed Iv admiral, vice-admir.-il, lord of the manor, kt\, mill the title is proved, it is 1>) be delivered to that person. If not (liiimcd as al)OVe, then it h to Ik* .sold, and the proceeds after jmying all vliiiins liiereon paid over for the benetit of the Crown, either to the Diit'liy of Lancaster or IJuchy of Cornwall, or, if nut claimed i)y tlicse ilmliics, (luring life of Her Majestv, to Men-antile Marine Fund. 17 & 18 Viet. e. 10-4. s. 475 ; '25 A 'id Viet. c. (ili. s. .W. 526 ^ives tlu> mode by which di.>.put«s as to the title to unclaime(' witrk limy be settled, either in a sununarv wa}, as in the cas(> of sidvage, will the ('ourts. 17 & 18 Vict. c. 104. ss. 47-^ 47:1. 527 provides that (lelivcry of unclaimed wreck by receiver is lu.t to |iivjiiiliic liny other jHrson's title. 25 & 2G Vict. c. 03. s. 52. 528 {jives power to the B I ! \^ t ( I iur I if IPs if. llli ' « '• Mi- 980 57 A 5S VICT. c. tH).— REWARDS SAVINW l.IFK [mi these aiitlioritiPH (sec. 533) tlio Bonnl of Trade i-* to diKjidc. And tlicsc jiowcrs nn> to lie in ndilition to nnv otiior iiowors {{ivcii lor ti iike dliitct l.y till- Act, 40 ir hereinaftii mentioned. " (2.) Salvage in resiiect of th(^ preservation of life, when payable hvthe owners of the vessel, shall l>e payable in priority to all other claims lor salvage. " (3.) Where the ves.s*-!, cargo, and apparel arc destroyed, or the value thereof is insuificient after payment of the actual expenses ini'iirnd tn pay the amotuit of sjilvage payable in respect of the prtscrvation nf life, the Board of 'I'rade may, in their discretion, award to the salvor (ml of the Mercantile Marine FuikI such sum as they think lit in whole or part satisfacition of any amount of salvage so left uni»aid." [ 1 7 & 18 Vid. c. 104. ss. 458, 459. ' Extended by 24 & 25 Vict. c. 10. s. 9 to salvage from any British ship or boat tcheresoever rendered ; and if salvage from foreign vessels a reward is to l)e given, if service performed in Britiih waters.] Salvigeof lite 545, "When it is made to apjM'ar to Her Majesty that the from foreign government of any foreign country is willing that salvage shoiihi !»' voKsels. awarded by British courts for services rendered in saviuf,' life from ships belonging to that country, when the ship is Iwyoiid the limits of British jurisdiction. Her Majesty may, by Order 'n Council, ilireet lliat the provisions of this Part of tlie Act with reference to salvage of lile shall, subject to any conditions and qualifications contained in the onKr, apply ; and tho.se provisions shall accordingly apply to those services as if they were rendered in saving life from ships within British juiisilie- tion." 25 & 26 Vict. c. 63. s. 69. INU l.IFK. [1894, the llmhl, if fn li^flj ] 57 * 38 VKT. c. «().— CLAIMS TO SALVAGK. 9S1 546 I'rovides on salvnj^e of cargo or wreck, for compensation to nny iiersoii rendeinng assistance other tlian the receiver. 17 & 18 Vict. c. 104. 5. 458. 547 provitles for determination of .salvajje disputes, whether of life iriiroperty. That if not .settled by agreement, arbitration, or otherwise jhiill bt-' determined summarily in c^Lse.s — (a) where [mrties consent; (6) tthcre the \ahie of proptM-ty does not exceed 1,(XX)/. ; (c) in any case where tlie amount claimed does not exceed in Great Hritain 300/., and in Ireland 200/. Subject as aforesaid such disputes shall 1ki determined liy the High Coint in {"hufland m\i\ Ireland, or in Scotland the Court of Session; but if the claimant do«'s not recover moiv than 300/. in CiTtat Britain anil 200/. in freland, then hi; is not to have his costs, iinles.s the court certifies for them. (4) If the dispute is determined Miiimarily in England i; is to be determined by a county court having .iilminilty juris liction, in Scotland by the sheriff's court, in Ireland hv two justices, or a stii^ndiary niagistnite or recorder of any borough hiiving a recorder, or the chairman of quarter sessions in any county. 1/& !H Vict. c. 104. ". 40C. 548, Disputes as to salvage which ute to be deteriuineil summarily shall— (rt) where the disputi- refers to ..alvage of wreck, be referred to a toiirt of nrl)itrators having jurisdiction near the pliice where the wreck is fuuiul; (6) where the dispute' relates to sah age in case of services rendered luanv ves.sol, or to the cargo, or apparel, or in '..iving life therefrom, be refeired to a court or arbitrators at or near tin- place wlic-re tlie vessel is iving, or at or near the port in the United Kingdom into whicli the vessel is first brought after the occurrence. 17 & 18 Vict. c. 104. s. 4'".'). 549 provides for a right of ap[)eal to any jjcrson hips, or of any other ship, and the salvor voluntarily agrees to abarulou Wslieii ui)on the ship, cargo, and proiM-rty alleged to l»e sidved, then upon the master enteiing into a wi'itten agri-cment, attested by two witnes.ses, to aliide the decision of the High Court in England, or of a Vice- .Vdmlnilty Court or Colonial Court of Admiralty, and thereby giving i^^^^ > i * 1 \ i ! ' , ' i ..iJrauciuM!, .■ M'; ll!' t \ ^H2 57 & 6H VICT. C-. 60.— SALVACE BY H.M.'s SH I l>S. | is!)|, Bcciirity in that bohalf to an amount ngrood on hv the |mrtics to ii,,, agrci'nicnt, that agrccnu-nt shall bind the ship, ami tlic cariio mikI Ini-rlit re»|K»etively, and the n'S|Krtivi' owners of the ship, vnvfii), ami licii'lu und tlu'ir rospcotivi' heirs, executors, and atlininislrators I'ur ilnsih,,,,,! which may be adjudged to Itc jmyai)le in res[M'et ol' tlic siiip, imijo and freight resiwetivly to the extent of the security given. " (2.) Any agreement made untlerthis section may l)e mijudie.ilcd on ^uhI enforced in the same manner as a bond executed under tlic |iniM>.i,,i|s ,,1 this Part of this Act relating to sjdvage by Her Majesty's siiip> ; iiiul on any such agreement In-ing made tin; salvor and llie nin^ttr sli.iH res|)ectively nuike the statements rerson liable to pay, may pay the sum to the receiver, who wiil <;ivi' him a certificate of discharge, and the receiver shall distribute auonj; iln' persons entitled to the same on such evidence and in such sinnc^ as |||. thinks fit, or retain any money to which any ab.sent person appinrcil to be entitled : and the receiver's decision is to Ik- tiiuil and conclusive. 17 & IH Vict. c. 101. sw. mi, 407. 556. " Whenever the aggregate amount of sidvage payable in rcsiHit of sidvage s«'rvi«'e renden-d in the Ui»iled Kingdom has Ihcii llimilv ascertained and exceeds 200/., ?nd whenever the aggregate nnionnt nf salvage payable in res|M'ct of stdvage services rendered elsewhere lidslicfM Anally ascertained whatever that amoimt nm;. b«', then, if any (liiny or dispute arises as to the apportionment thereof, any court having Admiralty jurisdiction may cause the sanu- to Im- apportioned amongst the |Mis(in> entitled thereto in such nuimier as it thinks jtist, and nniy tor tiint pur|)0.se, if it thinks fit, appoint any jKrson to carry that apportionimnt into efifect, and may ompel any person in whose hands or under ^\•lu)^;■ control the amount may 1)e to distribute tlu' same or to bring tlie siiiiie into court, to Ih- there tiealt with as the court may direct, and nniy lui' the pnrj)o.>»e8 aforesaid issue such proces.st-s as it thinks tit." 17 & if* Viit. c. 498. Salvage by Her 557. Where salvage services are rendered by any siiiji lieioii;;iii;; ii' Migesty 8 Bhipb. jj^^ Majesty no claim shall be allowed for any "loss caused to t!mt siiip or her stores, &c., by reason of th<\s»' .services, und no claim lor silMi^t services by the commander or c"»'W shall 1h' linally adjutlica cil iipoii unless the consent of the Admiralty to the piusecution is provei . 558. "Where services are rendered at any placo out of ili<' limit-ot the United Kingdom or the four seas adjoining thereto, by tin- <'r(y alleged to Ix stived shall, if the sid\or is juslitie!'Lii !7 & 18 Vict. c. lOt. *«. 487-18!). 560. 'I'l'*! consular officer or judge, on fixing the sum to be inserted Execution of Ml lilt' bond, shall send notice thereof to the sal\\)r and ma.ster, and on llic execution of the l)ond by the niast»'r in the sum fixed in the presence of the coii.sular officer or judge (who shall attest the saiiu!) and upon delivery thereof fo the salvor, ami in cas«'s where security is to be lodged, on that security lieingduly lodged, the right of the salvor to detain the vesH'l, caigo, or projM'rty shall ceas«'. (2.) The l)ond .shall bind the respi^ctive Miers of the vessel, cjirgo, iiml lieifrht, i.ul their heirs, executors, and administrators, for the salvage ;iiiiii(l;;i (1 to 1h? pavable in respect of the vessel, cargo, and freight le- j|wtively. 17 t the riglitof the Nulvor whore Hulviigu services have heen rendered l)v one of Her Majesty's ships or by the cuninianiler or any of the crew tliVieof to proceed for the enforcement of the salvtige chiiin otherwise tlmn in tlic manner provided by this Act, but the sidvor shall have i\(> riirht to ilctnin the vessel, cargo, or property savetl nidess he elects to proceed under this Part of the Act. " (2> Nothing contained in this Part of this Act siiall attVet llic ii"iii of the Midvor where sidvage s<'r\icc has heen rendered liv one of Hii Majesty's ships, or by the conunander or any of the crew thcicof in miv case which is not provided for therein." 17 & IH Vict.c. 101. s, HM. 563. The Itond, stjitement, agreement, oi' oth«-r (lociinienl itlntin" i« salvage by Her Majctsty's ships is to be exempt from stamp diit\ , if niiidc or executi'd out of the United Kingdom. 564. Punishment for forgery and false representation in uny iirocccd- ings under this Part of this Act relating to salvage by Her Majesty's ■hips. Jurisdiction of Hir/h Court in Salvngv. 565. " Subject to the provisions of this Act, the High Couil, ami in Scotland the Court of Session, shall have jurisdiction to decide u|K)n nil claims whatsoever relating to salvage, whether the services in respect of which salvage is claimed were performed on the high seas oi' within thf bovj the Act to n J. P. or court of summary juris4. s. .331. 575. Board of Trade may constitute new pilotage authorities; and by (>) there is to be no compulsory pilotage and no restriction on the powers (if (liilv (pialitied |)er.sons to obtain licences as pilots in any new pilotage torii'ts. 25 and '20 Vict. c. (53. s. .39 (3) ; 52 & 53 Vict. V. 68. s. 2 (A). 576 deals with the transfer of pilot4ige jurisdiction to local jurisdic- lion. 25 & 26 Vict, c. 63. s. 3». 577 clueM; mid piovidi's ilmi ikischs liiililc for thoin may Ik* tlio owiut or inaslcr, or coiisij^nccs or in'cni. who huve inailis theinselves liable to pay any other cliarffts mi accdiint of the ship ill the port of her arrival or (liseharf^e if piloln^fc iiiinirdii niul in port from which she eloars out if pilotage oiilutinl\. i; I 18 Vict. c. 104. ss. 303, 3(54. [See .wc. G19 post.] 592. I'ilotaije rate.M e.stnltli.shed hy law are only to In- puid m- ,|,,. iimiKled under a |K'iialty of 10/. 17 r qualified |iilot is on boaril. 17 .^ IH Vict. c. 104. s. 3.jO. 594. E.xtra allowance of 10.y. (Ul. a day to pilot taken to .sea tiiroiiirh necessity or without his consent out of his pilota<;e iii;n{il that hiMvill lake cliargi! of the ship; (b) when a siii[> is iiuli.stresxn when master must .secure the best assistance that he can ; and (c) for the purpose of changing the moorings of any ship in port, or lakin;; im into or out of any (lock where that can be done by an iiiipuililifd |iili>i under the bvedaws or orders of the harboiu' master of such i»oit ordoik. 17 & 18 Vict. c. 104. s. 3G2. 597. A qualified pilot may, at any time, siqierscde an uiiiinalifiKJ pilot, the latter being paid out of the qualified pilot's duos. J/nd. s. 36(1. 598 lenders liable to a jMjnalty of 50/. any umpialified pilot who takes charge of a ship after a (pialifled pilot has oilered to ilo su. 17 1^ 1^ Vict. c. 104. s. 301 ; 52 & 53 Vict. c. 08. s. G. 599. Pilotage authority may grant a pilotiige certificate to a iiinsttror mate of any shi]) on payment of f(>ea and exaiuiiiation as to coin|K-ti'iu'v 17 & 18 Vict. c. 104. ss. 340, 341. 600 gives an appeal by master or nuite to the Hoard of 'IVadi il a pilotage authority, without reasonable cau.se, refu.se an cxamiuatidii : or if the examination is unfairly conducted : or the conditions iiiipsi! are unfair : or if the pilotage certificate has been iuipropi'ilv witlnlniwu 17&18 Vict, c, 104.8.342. 601. The Board of Trade or any pilot^ige authority may witlulmw any pilotage certificate for misconduct or incompetency. 17 h nut hold a piloltt^f ciTtillciitt-, if he pilol> IiIm ,lii|i wiliiiii a foiupiilsory itilolagt- district at'lcr a (lualiiiwl pilot has offered III sigual or otliLTwiso to take Chinee of the ship, is double the pilotjige lilies tliut could he deiuauded for the couduct of the ship. 17 & IH Vict. f. 104. 8. 353. 604. PusHenger ships to or from any i>laee in the British Ishuuls to (lurv a |>>lot while within u pilot district. Masters of such ships amy obluiu [)ilot«ge certilicates. 17 «.t IH Vict. c. 104. ss. 354, 335. 605. Ships [tassing through a pilotage district on a voyage i)etweeu pliiiT.'i lioth situate out of that district neetl not have a pilot, hut the t'M'iupliun does not apply to ships loading or discharging at any [)h>ce tviliiiii pilotage tlistrict or in a river situate abo\e that district. 25 & 2«Vii't. c. 03. 8. 41. 606-61O ilots; ami iippeals of pilots. 17 and 18 Vict. c. 104. ss. 3U5, 300, o07 ; and ,VJ k "»;! Vict. c. OH. hh. 3, 4. 611. I'ilot boats to bo approved i>y pilotage authority, who may remove the master if necessary. 17 & IH Vict. c. 101. s. 315. 612. (-'haracteristics of pilot boats : All pilot boats are to have the uiiiiii' of the owner and [tort .she Ijelongs to painted on the stern, with the numk-r of her licence painted in white letters on each bow : and when iiHuut to have at each masthead u large lUig of two colours, the upper horizontal half white, and the lower red. Name, uimiber, and tlag are at 111! times to be kept clean, luicovered, and . 317 ; 62 & 53 Vict. c. OH. s. 0. 614. A |)cnttlty is imposef \- > USH: LIGHTS. 989 ! f '■ I ijliy ■ 1 ^1 '--ll"^ ot offering. 17 & 18 isliimls iind at Gihrallur, to he inTrinit) Hous» a .irouglioiit Sootlauil 1111(1 adjacent sca.santl islands and the tile of Ma,,, .n tin- Northern Light- houses C'oinniissionei'H; Throughout 1, . 'atitlaiul adjacent sea.s and islands, iatbe ('ommissioners of Irish Lights. 17 & 18 Vict. c. 101. s. 389. 635. ^^^ general lighthouse authorities are to give at all times to the Board of Trade returns, explanations, and information as to all lifflitiiouses, buoys, or beacons within their respective areas. 636 gives power to the Board of Trade to inspect and cause inquiry to be made on complaint of any lighthouse, buoy, or beacon, &c. 17 & 18 Vict. c. 104. s. 393. 637 gives power of inspection by Trinity House. 17 & 18 Vict. c, 104. s. 392. 638 deals with the general power of lighthouse authorities to erect, add to, or vary any lighthouse, buoy, or beacon. 17 & 18 Vict. c. 104. s. 404. 639. A. general lighthouse authority may take and purchase land or ir.ay sell land. 17 & 18 Vict. c. 104. s. 412. 640. When the Northern Lighthouses or Irish Lights Commissioners propose to execute any of their lighthouse powers they are to submit their scheme to Trinity House, who are to forward their report thereon to the Board of Trade. 17 & 18 Vict. c. 104. .ss. 405-407. 841. Trinity House may, with the sanction of the Board of Trade, ilirett tlie Northern Lighthouses and Irish Lights Commissioners to have certain works done in continuing a lighthouse, buoy, or beacon, to erect or alter or remove any such existing, or to vary the character of or mode of exhibiting lights therein. But before a decision is come to, a written report is to be sent to the Board of Trade, and the Northern and Irish Commissioners are to have an opportunity of making any representation theyehoose. 17 & 18 Vict. c. 104. ss. 408,409. 642. Additions to lighthouses in the way of fog signals or light sirens may be treated as a separate lighthouse. 50 & 51 Vict. c. G2. s. 5. 643. Light dues are continued. 17 & 18 Vict. c. 104. s. 396. 644. On completion of a lighthouse, buoy, or beacon, an Order in Council may fix the dues to be paid in respect thereof in the case of Hiiy shii) which passes the same or derives l)enefit therefrom. 'J'hese dues are to be deeine rade. 17 .*^ 18 Vict. Lighthouses, S)-c., in Colonies. 670. — "(!•) Where any lighthouse, buoy, or beacon has, either before or after the ))assing of this Act, been erected or placed on or near the coasts of any British possession by or with the consent of the legis- lature of that possession, Her Majesty may by Order in Council fix such dues (in thi" i.ct referred to as colonial light dues) to be paid in respect of that Hglithouse, buoy, or beacon by the owner or master of every ship which passes the same and derives benefit therefrom, as Her Majesty may deem reasonable, and may by like order increase, diminish, or repeal such dues, and those dues shall from the time mentioned in the order be leviable throughout Her Majesty's dominions." For this ami following sections see 18 & 19 Vict. c. 91. ss. 2, 3, 4, 5, G, 7, 8. "(2.) Colonial light dues shall not be levied in any British possession unless the legislature of that possession has by address to the Crown, or by Act or ordinance duly passed, signified its opinion that the dues ought to be levied." 671. — "(1.) Colonial light dues shall in the United Kingdom be col- lected niul recovered so far as possible as light dues are collected and recovered under this Part of this Act. "(2.) Colonial light dues shall in each British possession be collected liy such persons as the Governor of that possession may appoint for the purpose, and shall be collected by the same means, in the same manner, and subject to the same conditions so far as circumstances permit, as liglit dues under this Part of this Act, or by such other means, in such other manner, and subject to such other conditions as the legislature of the possession direct." 672. " Colonial light dues levied under this Act shall be paid over to Her Majesty's Paymaster-General at such times and in such manner as Dues for colonial light- houses, &c. Collection and recovery of colonial light (lues. Payment of colonial light liiii,. lines to Pay- iiiiister- Cii'iienil, Application of colonial light dui'S. Adra!nces for construction und repair of colonial light- houses, &c. Accounts of colonial light dues. 992 57X-5hVI(T c. ($0.— B()AHl)THAF)E,('OL(>NriES. [\h{)\. tlie Boanl ol 'I'rude dirt'Pt, und shall lie applii'd, |)nid, iiiul dcidt with hv liim i'or the purposes aiithori/ed by this Aof, in snoh nunincr as ihut Hoard dirt'ct." 673. "Colonial light dnes siiall, after dodnctinfj; the expenses of col- lection, be applied in payment of the expenses incurred in erecting und maintaining the lighthouse, buoy, or beacon in respect of which tiiev are levied, and for no other purpose." 674. — " (1.) The Board of Trade may raise such sums as they think fit for the purpose of constructing or repairing any lighthouse, buoy, or beacon in respect of which colonial light dues are levied or are to be levied on the security of those dues so levied or to be levied. " (2.) Any sums so to be raised may be advanced by the Treasury out of moneys provided by Parliament, or by the Public Works Loan Com- missioners, or by any other peicons, but any such advances shall be made and secured in the sf.mo manner and subject to the same provisions as similar advances for the purpose of lighthouses in the United Kingdom under this part of this Act." 675. — " (1.) Accounts shall be kept of all colonial light dues received under this Act and of all sums exj^ended in the construction, repair, oi' maintenance of the lighthouse, btioy, or beacon in respect of which those dues are received. " (2) These accounts shall be kept in such manner as the Board of Trade direct, and s'' ill be laid annually liefore Parliament and nuditod in such manner as ly be directed by Order in Council." .ifl PART 12 (sees. 67G to 679). See Part 7 of 17 & 18 Vict. c. 104. Mercantile Marine Fund. 676, 677. Sums payable to the Mercantile Marine Fund ; and the application of the fund. 17 & 18 Vict. c. 104. ss. 417, 418 ; 45 &40 Vict. e. 55. s. 3. 678 grants a subsidy from moneys provided by Parliament to the Mercantile Marine Fund. 45 & 4fi Vict. c. 55. s. 5. 679. Mercantile Marine Fund accounts to be public accounts, ami to l)e audited. 4o & 46 Vict. c. 55. s. 7. SI:,!! ){( PART 13 (sees. 680 to 712), trom Part 10, 17 & 18 Vict. c. m. As to application to the colonies, see sec. 711. Legal Proceedings. — Prosecution of Offences. Prosecution of 680. " (!•) Subject to any special provisions of this Act and to the offences. provisions hereinafter contained with respect to Scotland — " (a) An offence under this Act declared to be a misdemeanor shall be punishable by fine or by imprisonment not exceeding two years, with or without hard labour, but may, instead of being prosecuted as a misdemeanor, be prosecuted summarily in manner provided by the Summary Jurisdiction Acts, and if so prosecuted shall be punishable only with iniprisonnieiit for a term not exceeding six months with or witliont haiil labour, or with a fine not exceeding 100/. TT wmmmm^ 'OLONIES. [isiu. nial light dues received 17 & 18 Vict, c. 104. i by Pai'lianient to tlie s. 5. he pnblie accounts, and 1894.] 57 & 58 VICT. c. 60.— LIMITATION OF ACTIONS. 993 " {b.) An offence under this Act made punishable with imprisonment for any term not exceeding six months, with or without hard labour, or by a fine not exceeding]; 100/., shall be pro.secuted sununarily in nuuiner provided by the Sinimuiry Jurisdiction Acts. " (2.) Any offence committed, or fine recoverable under a bye-law made in pursuance ot" this Act, may be prosecuted or recovered in the same manner as an offence or fine under this Act." 17 & 18 Vict. c. 101. s. 518. 681. The Summary Jurisdiction Acts shall, so far as applicable, apply to any proceeding under this Act before a court of suunnary jurisdiction, ffiiether connected with an offence punishable on sunmiary conviction or not, and to th'i trial of any case before cue J. P. where under this Act such J. P. may try the case. (2.) Where under this Act any sum may be recovered as a fine, tjiat sum, if recovered before a court of summary jurisdiction, shall ia England be recovered as a civil debt in manner provided by the Summary Jurisdiction Acts. 682. Where a person is convicted summarily in Enf/land of an Appeal on offence under this Act, and the fine inflicted or the sum ordered to be summary con- paid exceeds five pounds in amount, that person may appeal to quarter ^"^*'°"' sessions against the conviction in manner provided by the Summary Jurisdiction Acts. 683. — "(^O Subject to any special provisions of this Act neither a Limitation of couviction for an offence nor an order for payment of money shall be '^'^^ for iiiailL' under this Act in any summary proceeding instituted in the United ='"'""'"''/ Kingdom, unless that proceeding is commenced Avithin six months after P'^°'^''^ '"fe'**' llie commission of the offence, or after the cause of complaint arises as the case may je ; or, if both or either of the parties to the proceeding linppen during that time to be out of the United Kingdom, unless the same is couunenced, in the case of a summary conviction within two ii'onths, nn('. in the case of a nummary order within six months, after they l)oth first happen to arrive, or be at one time, within the United Kingdom. " [2.) Subject to any special provisions of this Act neither a conviction for an offence nor an order for payment of money shall be made under this Act in any summary proceeding instituted in any British possession, unless that proceeding is commenced v. ithiu six months after the commission of the offence, or after the cause of complaint arises as the case may be ; or if both or either of the parties to the proceeding liappen during that time not to be within the jurisdiction of any court capable of dealing with the case." "Unless the same is commenced iu tliG case of a summary conviction within two months, and in the case of a summary order within six months after they both first happen to arrive or to be at one time within that jurisdiction." " (3.) No law for the time being in force, under any Act, ordinance, or otherwise, which limits the time within which summary proceedings may l)e instituted shall affect any sunnuary proceeding under this Act." (4.^ Saves proceedings under Public Authorities Protection xVct, 1893. 1"&'18 Vict. c. 101. s. 525. 684. '' For the purpose of giving jurisdiction under this Act, every Provisions ns offence shall he deemed to have been committed, and every cause of to jurisdiction complaint to have arisen, either in the place in which the same actually '"> cnso of was committed or arose, or in any place in which the offender or ''"'=""^***- person complained against may be." 17 & 18 Vict. c. 104. s. 520. '. 'it I li H S 2340. 3 R M \ m^ • * * ii 1 li I M' r 994 57 & 58 VICT. 0. 00.— JURISDICTION. [1894. If. ! M Jurisdiction over ships lying off tho const. 685. — (!•) Where any district within whidi any court, justice of tiu; peace, or other magistrate, hf • JMrisdiction, either under this Act or under any other Act or at common hiw, for any purpose wiiatcvi r, is situat>-'d on the coast of any sea, or abuttinn; on or projeetiiif,' into niiv bay, channel, lake, river, or other navigable water, every such conrt, justice, or magistrate, shall have jurisdiction over any vessel bping ,n or lying or passing off, that coast, or being in or near that bay, cliaiiml, lake, river, or navigable water, and over all persons on board timt vessel or for the time being belonging thereto, in the same manner as if tho vessel or persons were within the limits of the original jurisdiction of tho coiiit justice, or magistrate. (2.) The jurisdiction under this section shall be in addition to, nud not in derogation of, any jurisdiction or power of a court under the iSuinmarv Jurisdiction Acts. 17 & 18 Vict. c. 101. s. 521. Juri.sdiction in 686. — " (1-) Wiiere any person, being a British subject, is charjroil case of oflfences ^»ith having committed any offence on board any British ship on tho lii;;h ou board ship, g^j^^^ ^j, jjj j^^y foreign port or harbour or on board any forci<;n ship to which bo does not belong, or, not being a British subject, is cliiirpil with having committed any otTence on board any British ship ou the Iiii;li seas, and that person is found within the jurisdiction of any court in Her Majesty's dominions which would have had cogninance of the offence if it had been committed on board a British ship within tho limits of its orilinary jurisdiction, that court shall have jurisdiction to try tlie offence as if it had been so committed. " (2.) Nothing in this section shall affect the Admiralty Offences Colonial Act, 18-19." [12 & 13 Vict. c. 90. An Act for the suppressiou of piracies and treasons, &c., and that all persons accused of offcncvs tommitted on the high seas might be tried in any colony in the saiin' manner as if the oH'ence had been conmiitted on the waters within the local juri.sdiction of the court.] 18 & 19 Vict. c. 91. s. 21 ; 30 & 31 Vict. c. 124. s. 11. 687 provides that all offences committed by British seamen aflont out of Her Majesty's dominions, who at the time of the offonco wiv employed on any British ship, or within three months previously, shall lie tried in the same manner as if those offences were committed within the jurisdiction of Her Majesty's Admiralty. 688 gives power to arrest any foreign ship that has occnsiouod damage to any property belonging to Her Majesty or to any of Hit Majesty's subjects. Conveyanco of offenders and ■witnesses to the United Kingdom or British possession, 689. — " AVhenever any complaint is made to any British consular officer (a.) That any offence against i)roperty or person has been coinmitipil at any place either ashore or afloat out of Ilor I\Iajosty's dominions, by any master, seama.-; or apprentice wiioattlie time when the offence was commi. od, or within three montlis before that time, was employed in a British ship ; or ((0.) That any offence on tho high seas has been conmiitted liviniv master, seaman, or apprentice belonging to any Ihitisli ship, that considar ollleer may incpiire into tlu! case upon oath, and iiiiiv, if the case so requires, take any steps in his power for the |)urposi' of placing the offender under the neces.sary restraint, and of sending liini a.< soon as practicable in safe custody to the United Kingdom or to imy British possession in which there is a court capable of taking cognizance of the offence, in any ship belonging to Her Majesty or to any of lier subjects, to be there proceeded against according to law. )y B^iti^'h scaiiien afloat ;iinc of the offence wciv iiblo of taking coguiziiiuo 1894] 57 & 58 VICT. c. 00.— PT^ODUCTION OF EVIDENCE. 996 (2.) The consular officer may order tlie muster of any sliip belonjifing to any subject of Hor Majesty, boiin any such offender as aforesaid and to the ivimcsses, so tiiat the master I)o not retpiired to receive more than one oEfcader for every 100 tons of the ship's registered tonnage, or more than one witness for every 50 tons of that tonnage; and the consular officer >li:ill endorse upon the agreement of the ship such partietdars with ^'S|)ect to any offenders sent in her as the IJoard oC Trad(! require." Tiien, by sub-sec. (.3), on arrival of the shi}) in the United Kingdom or any such aforesaid British possession the offender is to be given into the lastody of some police officer, who shall take the offender before some J,P. or magistrate capable of dealing with the matter, and such J.P. or iiiaj;iptratc shall deal with the matter as in cases of offences committed on tlie high seas. (1.) If a master when required does not receive the offender and witnesses, and does not deliver the offender as afoi'csoid, lie is liable to a oO/. fine, 17 , or any ofiiccr nf customs, or any British consular officer, may detnin the ship ; and if after detention the ship goes to sea before it is released by competent authority, the master, as also the owner, or any person who sends tho ship to sea, if privy to the offence, shall be liable to a fine of 100/. (2.) Where a ship so proceeding to sea takes to sea, when on board in the execution of his duty, any officer authorized to detain the slii[), or any surveyor, &c., the owner and master shall each l)e liable to pay all the expenses of and incident to the oflicer or surveyor being taken to sea, and also a fine not exceeding 100/. ; or, if the offence is not prosecuted in a summary manner, not exc( eding 10/. per diem mitil tho officer, &c., returns, or until he can leave the ship to return; and the expenses may be recovered in the same manner as the fine. (3.) Where under this Act a ship is detained, an olFicer of cnstoms shall, and where she may be detained an officer of ciistoms may, refuse to (dear that ship outwards or to grant a transire to that ship. (4.) Where any provision of this Act provides that a ship may bn detained luitil any document is produced by tho proper officer, " proper officer " shall mean, unless the context otherwise requires, the officer able to grant a clearance or transire to such ship. 39 & 40 Vict. c. 80. s. 34. 693. Where any court, J.P., or other magistrate has power to make an order directing payment to be made of any seaman's wages, fines, or other sums of money, then, if the party so directed to pay the same is the master or owner of a ship, and the same is not paid at the time and in the manner prescribed in the order, the court, J.P., or magistrate who made the order may, in addition to any other powers they may have for the purpose of compelling payment, direct the amount remaining unpaid to be levied by distress, or poinding, and sale of the ship, her tackle, furniture, and apparel. See 17 Jic 18 Vict. c. 104. ss. 400, 401. 694. Where a document is required to be attested the docnment may be proved by the evidence of any person able to bear witup«s to the requisite facts without calling the attesting witness. 3id. s. 526. 695. Where a document by this Act in declared to be admissible in evidence, production from the proper custody is sufficient, and the dc'":.iient is to be admissible in evidence in any court or before any person having by law or consent authority to receive evidence, and^ nTfTTf^^ [N SHIP, [1891. I89t.] 57 & 58 VICT. c. 60.— PENALTIES AND COSTS. 997 subject to nil just exceptions, sbuH be evidcuce of the matters stated ihiTcin. (2.) A ('0])y of niiy .siieli (loeuiiK'iit or extract therefrom slinll )>e ii(liiii.ssil)le if it purported to lie ii siffued and certified or true copy Ity the ollicer to whose custody the original ikuMunent was entrusted, and lliiit (illleer .shall, on payment of not exeeedinjj Id. for i;very folio of iiiiii'ty words, fui'nish u certiiied copy ; but on payment of l.v. a person iiiii hiive n eertilled eojiy of the particnhu-s entried liy the rej^istrar in lilt! i'i';;i.ster book on the rej^istry uf the .ship, toj;ether with a .statement .-liowing the ownership of the ship at the time being; and (fj) a eertilied {•(ipy of any deelaration or document a copy of which is nuule evidence Ulh\ti Act. See ante, see. (ii, and 17 !k 18 Viet. c. 104. s. 107 ; 18 & 19 Vict. c. 91. s. 15. The section continues : (3.) — If any ollicer wilfully certifies any (locumeut as being a true copy or extract, knowing the same not to be a true copy, such offence is a misdemeanor punishable with 18 months' imprisonment; and (4.) If any person forges the .seal, stamp, or signature of any document to Avhicli this section applies, or tenders in evidence any such document with a false or counterfeit seal, stamp, or signature knowing the same to be false, he shall for each offence be guilty of felony. Punishment, not exceeding seven years' penal servitude, or imprisonment for two years with ( ir without bard labour. 696 deals with service of docimients, and imposes a penalty of 10/. ou any person obstructing the service of any document relating to the detention of any ship as unseaworthy, and if the owner or master is privy to the obstruction he is guilty of a misdemeanor. 39 & 40 Viet. c, 80. s. 35. 697. Any exception, exemption, proviso, excuse, or qualification in rela- tion to any offence under the Act may be proved by the defendant, but need not be specified or negatived in any information or complaint. 698. Any declaration required to be taken before a J.P. or any piirticular officer may be taken before a commi.ssioner for oaths. 699 provides for the ajjplication of penalties and costs of prosecution. Where any court, J.P., or other magistrate impo.ses a fine under this Act, for which no specific application is herein provided, that court J.P., or magistrate may, if they think fit, direct the whole or any part nf the fine to be applied in compensating any person for any wrong or damage which he may have sustained by the act or default in respect of which the fine is imposed, or to be applied in or towards tlie expenses of the proceedings. (2) Subject to any directions under this section, or to any specific application provided under this Act, all fines under this Act shall, notwithstanding anything in any other Act — (ff) If recovered in the United Kingdom be paid into the Exchequer in such manner as the Treasury may direct, and be carried to and form part of the consolidated fund. (6) If recovered in any British possession, be paid over into the Colony. public treasury of thiit possession, and form part of the public revenue thereof. 700. Where an offence under this Act is prosecuted as a misdemeanor Expenses of the court before whom the offence is prosecuted may in England make prosecution of the same allowances and order payment of the samt! costs and expenses misdemeiinor. US if the offence were a felony. And in any other part of Her Majesty's dominions may make such Hllowuuces and order payment of such costs and expenses as are payable •»l i mw i 1 i 1 , 1 ' i 1 1 1 ■ 1 998 67 & 68 VICT. 0. 00.— UOAUl) OF TllADH. [INOI. or allownhle iipou tho trial of any mis(lL'i.'ioiitK,r or iiiidcr miiv liiw [ur tho tiuii! Ix'iiig ill fbrc'o therein, 701. ^ueh costs incident/.! to any prosecution for felony ov nilsdeniciiiKiv as are l)y liiw payable out of any county or local rale slmll, where the I'elom- or misdemeanor Inis lieeii committed within the jiirisdietion of tlm Admiralty of Eih/Ih, ,/, he paid in the sanii; ir.anner and siilijict lu the same rcf^ulatioiis as if liiese erinies had been commitled ip the (.•(ninty wliere the same is iieard, or if heaiii at the Central t'riiniiiid Cuiiri, as if the sanu^ had been committed in the County of lionih)ii, and all sums l)roperly paid out of any county or other local rate in respect of ihusc coms and oxpeusts shall be repaid out of the nujney provided by I'iuliaiiicnt, 702-710 ^It'al with the procedure in ScotlumL 17 & is Vici c. 10-1. .ss. 530 to 543. Prosecution of offences in British possessions. ApplicRtion of Part 13. Returns as to merchant shipping to Board of Trade. Prosecution of Offences in the Colonics. 711. ■A-"y offence under this Act shall, in any IJritish possession, ln> punishable by any court or magistrate by whom mi offence of a like character is ordinarily [mnish.ible, or in such otlier manner as may lie determined by tmy Act or ordinance having the force of law in that possession. 712. This Part of the Act shall, except where otherwise provided, apply to the whole of Her Majesty's dominions. PART M (sees. 713 to 718) follows closely Part I of 17 & 18 Viet. c. lO'l. The powers of the colonies are dealt with in sees. 735, 7''' General Control of Board of Trade. 713. The Uoard of Trade, except where otherwise provided in llii> Act or other Acts in foicc, or so far as those Acts relate to revenue, aivlcj have the general superintendence of all matters relating to nieivhaiit shipping and seamen. 17 & 18 Vict. c. 104. s. G. 714. All consular officers and officers of customs abroad, and all local marine boards and superintendents, shall make and send to the Board of Trade such returns or reports on any matter relatini; to British merchant shipping or seamen as the Board may recjuire. 715. All superintendents, when required, are to produce to the lioaid of Trade all official log-books and other documents which are delivered to them. 716. All fees, &c., under 2nd, 4th, and 5th Parts are to he carried to the account of the Mercantile Marine Fund. (2) All iines coming into the hands of the Board of Trade are to be paid into the excliequei' of the Treasury. 717. Tlie Board may take any legal i)i'oceedings in the name of ;\u} of their officers. 718. Expense.? incurred by Commissioners of Customs in conducting suits or prosecutions are to be paid out of the revenues of customs, but the Board of Trade may, with the consent of the Treasury, repay out of the Mercantile Marine Fund all or any part of such expenses so paid as are under this Act chargeable on that fund. 719. 720 deal with the proof of Board of Trade documents ; i.e., that they be admissible in evidence ; and with the power of the Board of Trade to prescribe the forms to be used. 17 & 18 Vict, c, 104 ss. 7, 8. i^'Jl] 57 & 58 VICT, c 00.— ENFORCING ACT. 999 e otherwise iirovidwl, t I of 17 ct IHViut. a;s in the name of ;iuj 721 enacts that tho following in.strnments shall bo exempt from stamp ilutv : Instminenls to carry intoclTect the 1st Part of tlie Act ; those used livilic Hoard of Trade to carry into ell'eetlind, oth, 11th, and 112th Parts; jiiil liny instrnmenth wiiieh are rciinired to he iu a form a|)proved by thuBoiirdof Trade, if made in that form. 17 & 18 Viet. c. 101. ss. 9, 10. 722 pi'ovidrs for olTenees as to use of fornis; i.e., tliat if any person ivrjivfi: assists in : or procures to lie forged, the seal, or any other dis- liiiiruisliiiig mark of tlie Board of Xnule on any form issued by the Uoiinl of Trade ; or (A) fraiuhdcjntiy alteis : or procures to be altered any Micii form, tiuit person is {guilty of a misdemeanor. (1) If a person, (a) when a form approved by the Uoord of Trade iimler the 2nd Part of this Act, rccpiired to be usetl, uses without reason- nlile cause a form not purporting to be a form so approved : or (A) iniiits, sells, or uses any document i)urporting to be a form a|)proved liy tlie Board of Trade, knowing the same not to be tho form approved for llie time being, or not having been prepared or issued by the Board of Trade, that person shall bo liable to a fine of 10/. 723. Where any of the following officers, nanulv, — Po\ver.i for Any oilicer of tho Board of Trade, scoing Hint Act Any conimissicmed officer of any of Her .Majesty's ships on '^'oi'Tl'i^il full pay, ^ J ^ 1 ^.th. Any British consular ofliccr, The Registrar-General of Shiii^' ing and Seamen or his assistant, Any chief officer of customs in any pl.i'.' n Her Majesty's (lominions, or Any superintendent lias reason to suspect that the provisions of this Act, or any law for tiio liiiu' Ijoiiig in force relating to merchant seamen or navigation, is not iiiiii|)lie(l with, tiiiit officer may (a) reipiire tlu! owner or master or any of tlie crew of any British ship to produce any official log-books or oilier documents relating to the crew or any member th(;reof in tlieir resptctive po.s.session or control ; (f/) require any such master to pro- duce a list of all persons on l;oard his shii), and take copies of the official log-books or documents or of any i)art thereof j (c) iuuster the irew of any ship ; and (d) sununon the master to appear and give any cxjilnuation concerning the ship or her crew, or the official log- liuoks or documents produced or required to be produced. (2.) If any person, on being duly required by an officer authorized under this section, fails, without reasonable cause, to produce to that officer any such official log-book or document as he is required to produce under this section, or refuses to allow the same to be inspected or copied, or impedes any muster of the crew required under this section, or refuses or neglects to give any explanation which he is required under this section to give, or knowingly misleads or deceives any officer authorized under this section to demand any such explanation, that person shall for each offence be liable to a fine not exceeding 20/. 17 & 18 Vict. c. 104. s. 13. 724. Board of Trade may, at such ports as they think fit, appoint cither generally or for special purposes a snr\eyor of ships, who may be appointed either as a shipwriglit surveyor, or as an engineer surveyor, or Bsboth. [^S'ee Ord. Louis XIV., 1081, translated in "Treatise of Sea Laws," or " Dominion of the Sea," at p. 297.] (2.) Board of Trade may appoint a Surveyor-General of ships for the United Kingdom, and (3) may remove any surveyors of ships : fix their remuneration ; and make regulations as to their duties. I I vu i 1 i I'm- jKK(.uj;!atm(t!?»f(i>'ji*;iui.iK!(!( k-1 1000 57 & 68 VICT. c. GO.— POWER TO ALTER ACT. [1891. i' surveyor in colonies. (4.) A .surveyor of ships demanding or receiviufj any fee or gratnitv otherwise than by direction of tlie Board of Tiwie is liable to u iin,; of 50/. 17 & 18 Vict. c. 104. ss. 305-8. 725. Power is given to surveyors for i)nr[)ose of survcyin,;;; sliiiis to go on board any steauisliipatall reasonable times. 17 & 18 Vict. c. loi s. 30G, and ss. 15, 16. 726. Surveyors of ships are to make retin-ns to tlie Boiinl of Tnuk' as to the build, dimensions, draiiglit, burden, rate of sailing, room lor fuel, and the nature and particulars of machinery and iMiuiimients uf ships surveyed by them ; and (2) the owner, master, and engineer of the ship so surveyed shall, on demand, give to the surveyors all sucli infor- mation and assistance within his power as they recpiire for the piiriioso of those returns : the penalty for failing to give information and iissi.stanif being (.'^) a line of 5/. for each offence. 17 & 18 Vict. c. 101. s. 321. Appointment of 727. The Governor of a Bi-itish possession may appoint and remove surveyors of ships within the limits of the possession, for any purpose-s of this Act to be carried into effect in that possession. 728. Board of Trade may appoint any person as an inspi'ctor to miike a report (a) as to accident or damage to a ship : (i) whether the pro- visions of the Act have been complied with : (c) whether the hull ami machinery of any steamship are sufficient and in good condition. 729 deals with the powers of such insi)ectors. 730. Penalty for obstructing inspectors in the exectition of iLcir duty. 731. " All liglithouses, buoys, beacons, and all light duos anil otbcr rates, fees, or payments accruing to or forming part of the Moreaniile Marine Fund, and all premises or property belonging to or oci'upioil In any of the General Lighthouse Authorities or by the Board of Traik', which are used or applied for the i)urposes of any of the services for wliicli those dues, rates, fees and payments are received, and all iiistni- nients or writings used by or under the direction of any of the General Lighthouse Authorities or of the Board of Trade in carrying on tbosi' services, shall be exempt from all public, parochial, and local taxes, duties, and rates of every kind." 732. All vessels used by any of the General Lighthcuise Authorities or the Board of Trade are to be exempt in the United Kingdom from harbour dues. 733 deals with registiaticr. of private code of signals. 734. An Order in Council may, when any foreign country (ic-ires it, direct any provisions of this Act to apply to tlie ships of thateoinitry,iiiiil to the owners, masters, seamen, and apprentices of those ships, wlien nut locally within their own Government's jurisdiction, in the stnne mnnmr as if those ships were British ships. Exemption from rates. Power of Colonial Legislatures, Power of 735. " The legislature of any British possession ma}', by any Act or colonial Icgis- ordinance coniirmed by Her ]\Ii;jesty in Council, repeal wliollv or in piiit latures toa'ier any provisions of this Act (other than those of the 3rd Pint tlieiwf provisions ot ^\^\f.\^ ,.j.i,it,, to emigrant ships), relating to ships registercil in that ! possession ; but any such Act or ordinance shall not take eflect until tlic approval of Her Majesty has been proclaimed in the possessiou, or until LTER ACT. [1891. the execution of tlieir liy colonial legislature. 1894.] 57 & 58 VICT. c. 60.— COL. COASTING REGS. 1001 such time thereafter as may be fixed by the Act or ordinance for the purpose. " (2.) Where any Act or ordinance of the Icgi.slature of a British iwsses.siou has n'j)oali'd in whole or in part, as rospccts that possession, auv provision of the Acts roptialcd by this Act, that Act or ordinance sliiill have tlie same effect in relation to the corresponding provisions of tliis Act as it had in relation to the provision repealed by this Act." 17 & 18 Vict. c. 101. s. 517. 736. " The legislature of a British possession may by any Act or Rcgalution of oidinaiice regulate the coasting tra(le of that British possession, coasting tmdo subject in every case to the following conditions : — " (a.) The Act or ordinance shall contain a susi)ending clause pro- viding that the Act or ordinance shall not come into operation imtil Her Majesty's pleasure thereon har been publicly signified in the British possession in which it has been passed. " (b.) The Act or ordinance shall treat all British ships (including the ships of any other British possession) in exactly the same manner as ships of the British possession, in which it is made. " (c.) Where by treaty made before the passing of the Merchant 32 & 33 Vict. Shipping (Colonial) Act, 1869 (that is to say before the *'• ^'• 13th ]\Iay, 1869), Her Majesty has agreed to grant to any ships of any foreign state any rights or privileges in reapect of the coasting trade of any British possession, those rights and privileges shall be enjoyed by those ships for so long as Her Majesty has alreatly agreed or may hereafter agree to grant the same, anything in the Act or ordinance to the contrary notwithstanding." 32 & 33 Vict, c. II. s. 4. 737 deals with foreign places where Her Majesty has jurisdiction, aud provides that where there is no consular olEcer, then such things as may be done by, to, or before a consular officer, may be done, &c.. by Hich oflicer as an Order in Council may direct. 738 gives power to alter Orders in Council made under this or any ameiuling Act ; the new Order in Council being laid before Parliament within one month, and published in London Gazette. 739. Where by this Act any notice, authority, order, direction or otlicr communication is required or authorized to be given or made by the Board of Trade or the Commissioners of Customs or the Gover.".';r of ii British possession, or to any person not being an oflicer of su(!h Hoard, or Commissioners, or Governor, the siuiie shall be given or made iu writing. And (2) such notice may be transmitted by post. 740. Where a document is required to be published in the London Gazette, it will suflicc if notice of it is published in accordance with the (Statutory) Rules Publication Act, 1893, 56 & 57 Vict. c. 66. [i.e., that a notice in the Gazette of the document having been made and Avhere copies of it can be obtained is to be a sufficient compliance with the Act.] 741. " This Act shall not, except wliere specially provided, apply to ships belonging to Her Maj(!sty." 742. The terms usetl in this Act are defined, and inter alia " a Colonial Court of Admiralty " is to have the same meaning as in the Colonial Courts of Admirahy Act, 1890, 53 & 54 Vict. c. 27 ; " chief officer of I ! l\m m iiilp'^ 1002 58 & 59 VICT. c. 34.— COL. BOUNDARIES. [1895. Application of Act to certain fishing vessels. customs " includes the collector, superintendent, principal const ofliccr or other chief oUicer of customs at each port; and " superintendent" siiail so far as respects a British possession, include any shipping master or other officer discharging in that possession the duties of a supeiintenckiit, 743. The Act extends to ships propelled by electricity or otlioi' mechanical power, with such niodilicatioiis as tlie Board of Trade iiiav prescribe. 744. Ships engaged in the -vvhale, seal, walrus, or Xewfoinidland end fisheries .'ihall be deemed to lie foreign-going ships for tlie |)ui'pose of this Act, and not fishing boats, with the e.\cci»tion of ships fiigaGii'd in the Nenfoundland cod fisheries which belong to ports in Catmla tn- Xewfoundland. 745 repealed certain Acts, the repealed Acts 1)eing given in Scbcdiilc 22, But sub-sec. (/) provided that " Nothing in this Act shallaffct tlic Behriug Sea Award Act, 1891, and that Act shall have effect as if this Act bad not passed." 746 saved the Chinese Passengers Act, 1855. 747 gives the title, i.e., " Merchant Shipping Act, 1891." 748. The Act came into operation on 1st January 1895. The Schedules contain rules and regulations, as: 1st Schedule, furn:suf mortgages, &c.; 2nd, rules for measurement of tonnage ; .'hd, fees for measurement ; 4th, fees for examination ; 5th, regulations to be observed re anti-scorbutics ; 0th, regulations to be observed as to aceoiuniodatiou on board ship ; 7th, constitution of local marine boards ; 8th, re Idrth iit sea ; 9th, fees for passenger steamer certifie.'ite ; 10th, regulations iis to imniber of passengers on emigrant ships ; 11th, aceonuiiotlation of steerage passengers ; 12th, water and provisi )ns ; 13tii, carriage cd'horsis and cattle in enn'grant ships; 11th, forms under Part 3 (Piissciigcr inid Emigrant Ship>) ; 15th, form for entry of fishing boats in register; 16th, fees for inspection of lights and fog signals; 17th, life-sav inj: appliances — c^u-.r^Mttee ; 18th, precaution as to grain cargo ; IDtli, state- ments in salvage by Her Majesty's ships ; 20th, fees and reuiuuLTation of receivers; 21st, pilotagb rates ; 22nd, Acts repealed. Alteration of lx)undnries of colony. 58 & 59 Vict. c. 34. An Act to provide in certain cases for tlie Alteration of the Boundaries of Colonies. [6th July 189o ] BE it enacted by tlie Queen's most Excellent Majesty, by and with the advice and consent of tlie Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : — • 1, — (1.) Where the boundaries of a colony have either before cr ueeii after the passing of this Act been altered by Her Majesty the Q by Order in Council or letters ))atent, the boundaries as so altered sbnll be, and be deemed to have been from the date of the alteration, ibc boundaries of the colony. (2.) Provided that the consent of a self-governing colony sball !«■ required for the alteration of the boundaries thereof. f,:, 1895,] 59 VICT. Sess. 2. c. 3.— CANADIAN SENATE. 1003 (3.) In this Act " self-governing colony " means any of the colonies spfcilied in the schedule to this Act. 2. This Act may be cited as the Colonial Boundaries Act, 1895. Short title. S C H E D U L E. Self-Govekning Cotoxiics. Canada. Newfoundland. New South Wales. Victoria, South Australia. Queensland. Western Australia. Tasmania. New Zealand. Cape of Good Hope. Natal. 59 VICT. (1895) Scss. 2. c. 3. An Act for removing Doubts as to the Validity of an Act passed by the Parliament of the Dominion of Canada respecting the Deputy- Speaker of the Senate. [pth September 1895.] WHEREAS the Pavlianicnt of Canada have passed an Act intituled " An Act respecting the Speaker of the Senate," and providing for the appointment of a deputy during" the illness or absence of the Sjieaker of the Senate, and containing a suspending clause to the effect that the Act should not come into force until Her Majesty's pleasure thereon has been signified by procla- mation in the Canada Gazette : And Avhereas doubts have arisen as to the poAver of the Parliament of Canada to pass that Act, and it is expedient to remove those doubts. Be it therefore enacted hy the Queen's most Excel- lent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. Tlie Act of the Parliament of Canada passed in the Confimmtion session held in the fifty-seventh and fifty-eighth years of Act with Her Majesty's reign, entituled *' An Act respecting the spTaker'of Senats. i ; |i M ' .. !' I II in 1004 59 VICT. Sess. 2. c. 3.— DEPUTY SPEAKER. [1895 Short title. Speaker of the Senate," shall be deemed to he valid, and to have been valid, as from the date at which tlic royal assent was given thereto by the Governor- General of the Dominion of Canada. 2. This Act may be cited as the Canadian Speaker (Appointment of Deputy) Act, 1895, Session 2. ( 1005 ) APPENDIX B. THE JUDICIAL COMMITTEE. [The Acts compared with tho Revised Statutes.] 2 & 3 WILL. 4. (1832) c. 92. [The whole Act, except sec. 3, repealed by S. L. R. Act, 1874, c. 35. Sec. 3 to " thirty-three," and the word " that " wherever it occurs, re- pled by S. L. R. Act, 1888, c. 57.] An Act ^ for Transferring the Powers of the High Court of Delegates, both in Ecclesiastical and Maritime Causes, to Her Majesty in Council. [7th Aug. 1832.] 3, It shall be lawful to and for every person who might heretofore, br virtue of either of the said recited Acts [25 H. 8. c. 19. ; 8 Eliz. c. 5.], have appealed or nuide suit to His Majesty in his High Court of Chancery, to appeal or make suit to the King's Majesty, his heirs or successors, in Council, within such time, in such manner, and subject to such rules, orders, and regulations for the due and more couvenient proceeding, as shall seem meet and necessary, and upon siicli security, if any, as His Majesty, his heirs and successors, shall from time to time by Order in Council direct ; and the King's Majesty, Ills heirs and successors, in Council, shall thereupon have power to proceed to hear and determine every appeal and suit so to be made by virtue of this Act, and to make all such judgments, orders, and decrees in the matter of such appeal or suit as might heretofore have been made by His Majesty's commissioners appointed by virtue of either of the herein- lufore recited Acts, if this Act had not been passed ; and every such judgment, order, and decree so to be made by the King's Majesty, his lieirs and successors, shall have such and the like force and effect in all respects whatsoever as the same respectively would have had if made and |)ronounced by the foresaid High Court of Delegates ; and every such judgment, order, and decree shall be final and definitive, and no com- luission siiall hereafter be granted or authorized to review any judgment or decree to be made by virtue of this Act. Powers of the High Court of Delegates transferred to tho King in Council from 1st February 1833. 1, i\im ' This Act repealed 25 H. 8. c. 19. and 8 Eliz. c. 5., the former of which established the High Court of Dele- gates. During the first age of the colonies, 1606 to 1610, the Privy Council both legislatively and execu- tively .suijerintended the colonies. Ill 1G40 an age of reform began, and Parliament exercised Privy Council jurisdiction (16 Cha. 1. c. 10. ; I Chalmers' Opns. v. ; Scobell's Acts, 1649,c.21.p. 13). In 1660 [O. in C. 4 Jidy and Ls.P. 1 Dec] the king's ancient jurisdiction was restored, and a Council of Trade and Plantations was established. This Council was abolished in 1674 [or 21 Dec. 1677], when the whole affairs of trade and the colonies were placed under a Committee of the :i il 1006 2 & 3 WILL. 4. c. 92 —EARLY CASES IN P.C [1832, Privy Council. In 1G96 a Board of Trade and Plantations was ap- pointed to deal with the distress of British Commerce ; and distress in the colonies. Soon after I714 the colonial Acts to be sanctioned be- came very numerous, and a Standing Committee was appointed. About this time attacks were commenced on the colonial charters. In IGOOthe charter of Maryland was assailed. In 1711 the Pennsylvania charter was attacked. In 1717 the charter of the Bahamas was questioned. In 1752 the charter of Georgia was surrendered. By O.in C. 11 March 1752, the Lords Commissioners were directed to be careful in the selection of Governors, &c., and to draw up draft Commissions, War- rants, and Instructions for the same. [Col. Off. Lib.] In 1770, on the loss of the 13 American colonies, the Board of Trade and Plantations was abolished (1 Chalmers' Opns. xiv. ; 22 Geo. 3. c. 82.). In 1786 [O. in C. 21 and 25 Aug.] a Com- mittee of the Privy Council was appointed to consider all matters relating to trade and foreign planta- tions. It ai)peared that the best men would not act, and therefore petitions to review the decisions of this Committee were frequent. Going back to the earliest period, the jurisdiction of the Privy Council seems to have commenced by Admiralty cau.ses (17 Rich. 2. 1393-4; 3 Rot. Pari. No. 49, p. 322) and also by prize appeals under treaties, such as that between Henry 7. and Louis 12. in 1498. See 12 Rymor G90 ; Liiido v. Itodnev 2 Douglas 01.3-010 ; The rnhiuV 2 C. Rob. 245. The Privy Council also dealt with qiiostioiis of boundaries [as in a ciis(; liko the claim to the Marches of AValfsJ ; the limits of the fens of Suttonj parcel of the possessions of thi' Bishop of Ely: tlie Queen of Swts' design : the Essex disaster ; (uid claims to an island, as the Earl of Derby's claim to tlie Isle of Man. A controversy between two pro- vinces : and claims to a proviiu'e [Lord Baltimore's in 1090], also came before it: New Haaipsliire case [Livius v. Wentworth], Bel- knap's Hist. New Hamp. 347. This case is said to have been heard before the Lords of Trade 10 Ma\-, and reheard before the Lords of Committee of the Privy Coinieil, 29 July ; reported 20 Aug. ; O. in C. 8 Oct. 1773: and that the judg- nent was printed. Otlier early .•uses wei'C an appeal from .lersev, 13 May 1572, Maeq. H. L. 080: Gordon v. Lowther, from Barbados, 1720, 2 Ld. Raym. 1447 : Miigooiis V. Dumaresque, ibid. 1448. Sve also Lord Hardwicke, L.C, in Penu V. Lord Baltimore, 1750, 1 Ves. Sr. 446 ; and the cases Xew York V. New Hampshire, 20 July 1704, Belknap's New Hamp. 3:25: Earl Cardigan's claim to the Island of St. Vincent, 1704: The Jbissa- chusetts Bay Co. v. The King, 1704 [the charter is to be seen at Colonial Office Library], and Beck- ford V. Wade, 1805, 17 Vesey 87. 3 & 4 WII-L. -i c, 41. Preamble and sec. 1, to the worr'..- o ;!.:^ same that," repealed hv S. L. R. Act, 1890 (53 & 54 Vict. c. ..<3.' S. L. R. Act (No. 2), 1888 (51 & 52 Vict. c. 57.), repealed in sec. ;he words "the Lord Hij;h Chancellor of Great liritain for the time being." And from "Lord Chief Justice," where those words fir.st occur, to " bankruptcy." And from " or held " to " Britain." And the words " and be it fuitlicr enacted that," and "And be it enacted that," wherever they occur (except in sec. 31), and the word "that" wherever it occurs with reference to the introductory words so repealed. And, in sec. 31, the words "and l)e it enacted." Sees. 1 and 30 amended l)y 50 & 51 Vict, 7TT 'rr 2 & 3 W. 1. c. 92. 25 II. 8. f. 19. 8 Eliz. c. 5. Iji33.] 3 & 4 WILL. 4. c. 41.— JUD. COMMITTEE ACT. 1007 f "0. MS. 3, 4. Soc. 2 was repcnied by 53 & 54 Vict. e. 27. [ante, p.902]. Sec. 5 was amended and repealed in part by 14 & 15 Vict. ( 83. s. 10, which made the qiionnn 3. Sees. 22, 25, 2(5, and 27 repealed KS. L. R. Act, 18G1 (24 & 25 Vict. c. 101.). Sec. 28 repealed in part K 6 & 7 Vict. c. 38. s. (i. Sec. 29 repealed by S. L. R. Act, 1875 i3S&39 Viet. 0. 6G). iu Act for the better Administration of Justice in His " The Judicial Majesty's Privy Council. [Ut/i Auffust ISSn.] fg^?'^" '^''' TTTHEREAS by virtue of an Act passed In a session of Parliament \y of the second and third years of the reign of His present Majesty, intituled " An Act for transferring the Powers of the High Court ot Delegates, both in Ecclesiastical and Maritime Causes, to His Majesty iu Council," it was enacted, that from and after the first day of February one thousand eight hundred and thirty-three it should be lawful for every iierson who miglit theretofore, by virtue either of an Act passed in the twenty-fifth year of the reign of King Henry the Eighth, intituled "The Submission of the Clergy and Restraint of Appeals," or of an Act passed in the eighth year of the reign of Queen Elizabeth, intituled "For the avoiding of tedious Suits in Civil and Marine Causes," have appealed or mnile suit to His Majesty in his High Court of Chancery, to appeal or make suit to the King's Majesty, his heirs or successors, in Council, within such time, in such manner, and subject to such rules, oi'ders, and rfgiilations for the due and more convenient proceeding, as should seem imetnnd necessary, and iijwn such security, if any, as His Majesty, his lieiis and successors, should from time to time by Order in Council direct : And whereas, by letter- ))atput under the Greiit Seal of Great Britain, certain persons, ni. hers of His Majesty's Privy Council, together with others, being judges and Barons of His Majesty's courts of Record at Westminster, have been from time to time appointed to be His Majesty's Commissioners for receiving, hearing, and determining appeals from His Majesty's Courts of Admiralty in causes of prize : And wlieieas, from the decisions of various Courts of Judicature in the J^ast Jiulies, and in the plantations, colonies, and other dominions of His Majesty abroad, an appeal lies to His Majesty in Council : And whereas matters of appeal or petition to His Majesty in Council have usually been lieard before a Committee of the whole of His Majesty's Privy Council, wiio have made a report to His Majesty in Council, whereupon the final jiiilginont or determination hath been given by His Majesty : And whereas it is expedient to make certain provisions for the more effectual hearing and reporting on appeals to His Majesty in Council and on other matters, and to give such powers and jurisdiction to His Majesty in Council as herein-after mentioned : Be it therefore enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament as- iombh'd, and by the authority of the same. [Tlie above repealed ; also tiie following words in brackets.] Tiie President for the time being of His Majesty's Privy Council, [the Lord High Chancellor of Great liritain for the time being], and such of tlio meuibers of His jNIajesty's Privy Council as shall from time to time hold any of the offices fcdlowing, that is to say, the office of Loril Keeper or First Lord Commissioner of the (ireat Seal of Great Britain, [Lord Chief Justice or Judge of the Court of King's Bench, Master of the Rolls, Vice- Ciianeellor of Eiif/lanrf, Lord Chief Justice or Judge of the Court of Com- nioii Pleas, Lord Chief Baron or Baron of the Court of Exchequer, Judge of the Prerogative Court of the Lord Archbishop of Cante^'bury, Judge of ! ! WT ' ' £ ■ I Certain per- sons to form a committee, to lie styled "The .TudiclQl Committee of the Privy Couneil," i;*;^'rT»Mfrifii'iiiii(|jip;¥jiiji'UrM*.r!«i';j;ifffl 1008 3 & 1 WILL. i. c. 11.— PRELIM. REQUISITES. [1833. I Court of Admiralty, and Cliief Judge of the Court in Bnnkrnptevl all persona, members of Hi.s Majesty's Privy Coinicil who e been President thereof [or held the oOiee of Lord Chuncollor All appeals from sont6iico of any judge, &c. to Ix) referred by His Majesty to the Committee, to report thereon. the High ( and also shall have neen i'resKieni tnereoi [or neid tne ouiee of Lord Chuncollor of Great Jhitain], or shall have held any of the other olUccs hcnin- before mentioned, shall form a Committee of His Majesty's said I'rivv Couneil, and shall be styled " The .Judieial Conunittce of the Privy Couneil " : Provided nevertheless, that it shall bo lawful for Ills Majesty from time to time, as and Avheii he shall think (it, by liis sji'ii manual, to appoint any two other persons, being Privy Couiicillors "to be members of the .said Connnittee. [50 & 51 Viet. (1887) e. 70., by see. 3, provides that the Judieial Com- mittee " Shall inelude sueh meml)ers of Her Majesty's Privy CoiirKii as are for the time being holding or have held any of thi; ollieos in flu. Appellate Jurisdiction Act, 1876, and this Act described as liiirh judicial offices." See these Acts, jooif.] 2, Repealed by the Colonial Courts of Admiralty Act, 1890. Sec proviso to repeal mite, pp. 900-902. 3. All appeals' or complaints in the nature of appeals wlmtpvor which either by virtue of this Act, or of any l»w, statute, or custom, may 1)6 brought before His Majesty or His Majesty in Council from or in respect of the determination, sentencic, rule, or oi'der of any coiut, juil"(', or judicial officer, and all such appeals as are now pending and uniieanl, shall from and after the piussing of this Act be referred by His Mnjistv to the .said Judicial Committee of his Privy Council, and sueh appeals, causes, and matters shall be heard by the said Judieial Committee, and a report or recommendation thereon .shall be made to His Majesty in Council for his decision thereon as heretofore, in the .siuno maiuai und form as has been heretofore the custom with res[)eet to nmtters ntVirod by His Majesty to the whole of his Privy Couneil or a eommittci' thereof (the nature of such report or recommendation being alwnys stated in open court). I' irj ' The time for an application to be mode to the colonial court for leave to appeal from a final judg- ment is regulatt'd in every colony by the charter of their coiu-ts of justice : instructions to the Gover- nor : Orders of Her Majesty in Council : orby the colony'sown ordi- nances. The limit of time ranges from 14 days [West India Islands] to six months [India], counted from the day the judgment or the decree complained of was pro- nounced. (2) The subject-matter of the appeal must be of a certain value, running from 300/. in Bar- bados, to, as in India, 10,000 rupees ; or concern some Civil Right, Duty, or Fee. (3) Seciuity to the satisfaction of the colonial court must be given for the due prosecution of the appeal; and to meet any costs ordered by the Judicial Committee. (4) E.xppn- tion may be stayed on terms: or the respondent may be onleivd to give .security. (5) The appeal nubt be prosecuted within a yo.'U'. (()) WHien any colonial court allows ,nii ap[)eal to the Privy Coiuicil, tiic registrar or officer having tiio custody of the records of tho colo- nial court is to seiul with all df- spatch one certified eoi)y of the record in each cause to the rrgistnir of Her Majesty's Pi'ivy Conncil. Regidationsas to this are printed, it length in the London G(izette,Ms 8, 1853, p, 1911, and 31 .Alaicii 1855 ; and (7) on .special gromuls leave nuiy I)e given to appeiil from interlocutory jmlgment.s. (8) The Judicial Committee may give special leave to ajjpeal. See such cases, ante, p. 410 e/ seq. I have looked up the lustriic- ISITES. [1833. 3urt in Bankruptcy] 'rivy Council, who of Lord Chancellor )tlu'r offices hereiii- lajosty's sail! Privy iiittee of the Privy )0 lawful for His link tit, hy his sif;u I'ivy Councillors, to at the. Judicial Com- y's Privy Council ns af the, olVices in the described as high ilty Act, 1890. Sec )f appeals whatever, ituto, or custom, may 1 Council from or in of any court, judge, [)ending and unheard, srred by His Majesty :!il, and such appeals, licial Committee, and a to His Majesty in the same manner iiiid ;ct to matters referred nicil or a conunittec idation bcinj,' always umittee. (4) Exccu- staycd on terms: or int may be ordered to . (5) The appeal must d within a year, (0) olonial court allows an 10 Privy Council, the • officer having tlio he records of the colo- < to send with all do- certified copy of tiic ill cause to the registrar ijesty's Privy Council. as to this are printed at e London Gazette,M\ 1911, and 31 March (7) on special grouwls be given to apiieal acutorv judgments. (8) al Coinmittce may give e to appeal. See such p. 410 et scq. looked up the Instruc- 1833.] 3 & 4 WILL. 4. c. 41.— APPEALS FROM COLS. 1009 tionstoGovrnors: Chnrter.s: Ordi- nances : and Orders in Council ref<[)cctively of the following colo- nies, and '* P." means that a peti- tion for leave to aj)peal must be presented to the colonial court within the time given : and " V." means that the value of the subj(>ct- niattcr of the nj^peal must be o\er the amount given. [The following are notes which may be useful in ])utting enquirers on the track ; but in any question of difficulty it would be well to personally see Mr. George Pearson Whoeler, of the Judicial Depart- ment of the Privy Council, Down- ing Street, who has been there for just twenty years, and has the practice by heart.] Aden, Gulf of, through Bombay. See Bengal. Africa (Co.itinent and Islands), V. 100/., or Secretary of State's order. Appeal may be to any prescribed S. C. of any African [wssession of H. M. and S. C. of Bombay [but not Cape Colony nor Xatfll until provision is made by the legislatures], and thence on •«me conditions and amount as any other decision of the same court to the Judicial Commit- tee. Consular Courts O. in C. 15 Oct. 1889, ss. 21, 82, Lou. Gaz. ooo"; 18 H.'s T. 1. This O. in C, excludes any place within the territorial jurisdiction of the courts of any African possession of H. M., or of the courts of any possession of any other non- African [lower, and the territories of Morocco, Tunis, Liberia, Zanzibar, South African Re[)ublic, Orange Free State, and places controlled by Egypt, and any place in v.'hieh any other O. in C. under the Foreign Jurisdiction Act is in force. But may extend to H. M. Protectorate of Niger Districts, or future protectorate, or to territories under the International Association of the Congo, and under the Oovernment of the Free States 5«hject to the Berlin Convention of IG Bee. 1884. See therefore as S 2340. to P. and V. West African Settle- ments {Sierra Leone), Gold Coast, and Bombay {Bengal) ; also O. in C. 17 July 189;j, St. R. 308: "Natives of any protectorate of H. M. which is outside any local jurisdiction constituted under the Order of 1889 .shall, when within that local jurisdiction, be deemed to be British protected persons within the r caning of that Order." Sec O. in C. 28 June 1892, ForL: latter, ■" Clir.rtiTs li. ft, Mnd," pp. 109, 1 iO, and as to the lornioi' it is as near as may lie a tninscripi of the charter of U'^nuial. Scu also Code of C. P. xiv. of 'l8S'J,ss 595- 599; 21 Geo. 3. c. 70., and Regu- lations xvi. s. 1797; 37 (reo. ;i c. 112; 21 & 25 Vict. c. It) I; Linii- tation Act xv. of 1877, s. (i : C'iiow- dry I'. Mullick, 1 Moo. Ind, Ai)|i, p. 3(51 : Nathoobhoy Raiadass c. Mooljce Madowdass, 2 ISloo. Jnil, Ap|). p. 177; East India Coy. r. Syed Ally, 7 Moo. Ind. A pp. bfiS, Berbice. See British (iniami. Bermuda, P. 20 davs, V. fiom Ct. Error oOO/., from Clmii, Ct. P. 14 days, 300/. Beruitula Laws, Act 1814, s. 9, and Act 1870, Xo, 382, respectively. Bombay, P. 6 months, V. 10,000 Rs. Charter and Letters hit. 28 Dec. 1805. See Beng(d. Borneo. See Straits Settle- ments. British Bechnanaland. Ap- ])eals direct from Chief Magi.*., P. 14 days, V. 500/. 50, 51, ami 52 of Cape Ch. of Jns. to ajiply, Appeals to he allowed to H. M. in C. in all cases in which appeals arc allowed from S. C. Cape of Good Hope. B. B. Procl. 1885, 1889, l)p. 15, 43. Laws in force in Cape Colonv proclaimed in H. B, 6 Oct.' 1885. Ibid. No. 2, 1885. and No. 9, 1886. B. B. aniie-^ed to Cape Colony, 9 Nov. 1S95. British Central Africa Pro- tectorate (late Nyas.salan(l).— Xew name, F. O. letter 22 Feb. 1893, 19 H.'s T. 8. British Columbia. V. Probabiv 300/., same as Vancouver. British Gniana, inelndos Ber- bice, Demerara, Esseqnvlio, P. M days, V. 500/. O. in C. 23 April r'' p 1833. 3 & i WILL. 4. c. 41 —APPEALS TO P. C. 1011 m \ \s one fit for iiu n criiniiiiil iqipuuls if law liiid liccii re- e Uifjli Ciiiirt ('(Jii- liiit .viis tiiii' lit Uiv tlii's* Lctlfis I'ati'ni I8(ii3," ill till' Inner to ihc cliiirtcrs of TJmlnis, see for tlw tcrs H. ("t. Mail." nnd as to llu' former s may lie a tnmscript of li'Mijial. See also xiv. of 18S2,ss.5!)5- . 8. ('. '()., and l{ei;ii- ». 1797 ; .'57 (too. I). 25 Vi«'t.c. 101; Limi- . of 1877,s. ():Cliow- k, 1 Moo. Ind. App. hool>hoy Ranidass i: ilowdass, 2 Moo. liid. ; East India Coy. r. ■ Moo. Ind. A\)\). 5(i8. Sec British (Iniaiia. , P. 20 davs, V. from )()/., from Clmn. Ct. P. 00/. Bermuda Laws, 9, and Act 187(), Nu, P. o'lnonths.V. 10,000 >r and Letters Pat, 28 See Bengal. See Straits Settle- BechiiaualaiKl. Ap- (t from Chief Magis,, s, V. 500/. 50, 51, ami > Ch. of Jns. to apply. bo allowed to H. M. in sps in which appeals me om S. C. Cape of Good B. Procl. 1885, 1889, Laws in force in Cape iroclaiuied in H. B. ^5. Ibid. No. 2, 1885, I, 1886. B. B. anne-d olonv, 9 N"ov. 1895. Central Africa Pro- late Nvassaland).— ^ew O. letter 22 Feb. 1893, a 'Columbia. V. ProbaWv le as Vancouver. Guiana, includes Bet- erara, Essequcbo, P. H 500/. O. in C. 23 April ami 20 June, 183) ; CI. Col. Law, 271, 280 ; 1 Laws B, G. 35. British Hontluras. See Iloii- (hiras. British New Guinea, in civil actions V. 100/,; in Admiralty actions irrespective of vahu? ; an iippeal is {^iven to S. C. Queens- liiiul, Brislmne, and thence to P. C. in the same manner as any otiier decision ot such Court. O.s ill ('. 1888, Par. Pap. [C. 5664] ; IHH.'s T. G97; 21 Nov. IHiil St. K. 23. See Australia. British North Borneo. S'c Sirait Settlements. liriniei {Borneo), P. 15 dnvs, V. 500/. from S. C. Straits Settle- ments. O. in C. 22 Nov. 1890, art. 64 ; St. R. 685. Burmnh, appeals from lion- ijoon, V, 10,000 Bs. See Benr/al. (Vit. from Recorder that s. 596 of C.ofC. of P. xiv. 1H82 complied with. Canuda. .Sj). leave See the Piwiiices. 54 Vict. (Can.) e, 6., appeal allowed to P. C. on finnn- liiil awards. Cape of Good Hope, P, 14 da^ s. V, 50(1/.' CI, Col. Law, 487; St, Liw Cape, 1714 to 1853, [). 220. Ceylon, P, 14 days, V, 500/, (.'liarter of tlu.stice ; CI, Col, Law. 503. i'hina, Japan, and Corca, tlinuigli S. C. Shanghai, whicli see. Constantinople, S. C. C, See Tiirkei/. Consular Courts, generallv P, 15 (lays, V. 500/. O, in C. 27 January 1860, See infra and Foreign Juri.'idiction Act, 1890, post. Cored, through S, C. Shanghai. O.iuC. 26 June 1884, 17 H.'sT. 2H2| 0. in C. 3 April 1886, Lon. Gaz. 1655. Clients, P. 14 days, V, 500/. O.inC, 15 July, 1881, Lon, Gaz. 3589; O. in C. 30 Nov. 1882, art. 41,18 H.'sT. 327. See CO. ami Laws, 1878-92, p. 42. Dominica. See Leetcard Islands, or may be direct. See Antigua M>^, 1864, p, 284, £ast Indies. See Bengal. Egypt, P, 15 days, V. 500/,, from H, B, M, C. C, to S. C. C. C'onstantinojjh', and after a hearing liefore the jiidfiv ami additional judge an appeal lies to P. C, O. in C, 10 Nov, 1866; O, in C. 12 Dee. 1873; 14 11, 's T,, 561, 617; and O. in C, 8 March 1895, No, 139, See Turkey. Falhlund Islands. Appeal from Magis. Ct, to Governor in C, ; P. 14 days, nnd V. 100/, Ord, 1853, No, 7 ; F, Islands Laws, 1884. ////, P, 14 days, V, 500/, O, in C. 22 February 1878 ; Fiji Ord. 1877-8, See also'o, in C, 15 March, 1893; St. R, 312. Fort JVilliani. See Bengal. Fort St. George, Madras. See Bengal and A/adras. Gambia, through App. Ct, Sierra Leone. O, in C-, 24 Nov, 1891, St, B, 21. See H'esl African Settlements. Gambia Territories, adjacent. See (), in V. 23 Nov. 1893, St. B. 311, Gibraltar, P, within 14 days, V. 7,500 pesetas, or 300/,, or, if less, leave is in the discretion of the Court. Ch, of Justice, 1 Sept, 1830; CI. Col. Law 688 ; Gib. Laws 1888, ss, 40-45. p. 512; and O, in C. 17 Nov. 1888, art, 42. Gold Coast, P, 14 days, V. 500/, 0. in C, Oct, 23, 1877,' Lon. Gaz,, 5850, Gold Coast Territories, adja- cent to, O, in C, 29 Dec, 1887 ; 17 H.'s T. 127. Appeal to Gold Coa.st, which see. Grenada. See Windward Is- lands. Grenadines. See Ibifl. Griqualand West. Appeal direct from High Court, Ordinance No. 9 of 1875,'or through theS, C, Ca^je, whicli see. Gri. West Laws 1. vol, 13. ; 2, vol. 163, Annexed to the Cape, 1880, by Act 1877, No. 39. But Van Zy'l, J.P, Cape, p. 527, says there is only one appeal, i.e., through the S, C, Cape Colony. Guernsey, V. land 10/, a ^ear, 3s 2 ■' 1012 3 & 4 WILL. 4. f. 41.— APPEALS TO P, C. [1H33. or peiHOualty of 200/. O. in C. 13 May 1S23; CI. Col. Law, 70«. Honduras, British, P. within H (lays, V. 500/., tlirough Iho S. Ct. Jamaica, but may a|i|)i'al direct. Briti.sh Honduras Laws, pp. 26, 671; CI. Col. Law 3*^7; 44 & 45 Vict. c. 30. O. in C. 30 Nov. 1HH2. Halifax'. Vieo-Admiraltv Court. 43 Geo. 3. 1813, c. 00. Honq Kong. lastruction.s to Lt.-Gol-., 23 Dec. 1H45 ; .fur. (for C. and J.) to cea.st>. O. in C. March 1S65, 8. 100; 12 H.'.s T. 310. Isle of Man, P. inontlw. Lox Scriptn, 270; Mill. 245 ; L M. St. 130, 107. Jamaica, P. within 14 ()H. \\ within 14 days, \. ;U)0/. Mashonaland, sanu^ as next. Matabeleland.~-U V. 100/, can appeal to High Coin-t, and from H. C. to S. C. Cap(. Culou)', Thence to P. C. in the .siimc manner and on thesuine conditions as S. C. appeals. O. in C. 18 Jiilv 1891, St. R. 1.33. Mauritius, V. 14 diivs, V. 1,000 piastres, or 1,000/. "t'li. of ,J 13 April 1831; CI. Col. Law. 580, 594. Monserrat. See Leeward Is- lands. Morocco, through S. C". (iilnal- tar. O. in C. 28 Nov. lS8i). art. 105. No Crini. App. witiiout leave, art. 44; 18 H.'s T. 871, Lon. Gaz., 7103. Muscat, through S. C. Bombay. See Bengal. Natal, V. 14 days, V. 500/. Natal Laws, 1843-70, Vol. 1. p. 220 ; Vol. 2 p. 1358 ; 0. in C. 19 July 1870. Nevis. See Leeward Islands. New Brunswick, P. 14 davs, V. 300/. O. in C. 27 Nov. 1852 ; Lon. Gaz., p. 3575. Newfoundland, V. 500/, Ct. of Jus., 19 Sept. 1825 ; 5 Ooo. I. s. 20. V Guinea. See British N. G. New South Wales. See Aus- tralia. New Zealand. P. within 14cl«ir days, V. 500/. O. in C. Nov. 30. 1804; O. in C 10 May 1871; N. Z. S. Ct. Practice, p. 204. Niger Protectorate. F. 0. Letter, Lon. Gaz., June 5, 1858, p. 2581. See Africa. North-West Territories {Can). O. in C. Can. Gaz. xAIarcii 5, 1892, p. 1040. P. within 14 days, V. 300/. North- Western Provinces {In- c. 07. 'TffPT I833.J 3 & \ WILL. t. 0. tl.— APPEALS TO P. C. 1013 i "lays, V. I,(HH1/, , IH Di'c. 1821. '. Sen fs/v, ,\;(!. O. in (". ; OIV. (■„„, 1H!)2, p. 20 n. 1'. , V. ;u)0/. (I, snww UH iic.\t. i0. Ordinnnco No. 12 of 1879, 8. 41. They include Singapore, Malacca, Labuan, liorneo [British North Borneo, Brunei', and Saratcah], Prince of Jf'ales Island. [See 37 & 38 Vict. f. 38.; 28 & 29 Vict. c. 115.; and 21 & 22 Vict. c. 106.]; Siam included by Foreign Juris- diction Act, 185G (19 and 20 Vict. c. 113.) and Chiengmai, Lakon, and Lambouchi included by O. in C. Lon. Gaz., 4 July 1884, p. .3049. Tasmania. See Australia, Tonga. See Western Pacific Islands, and Fiji. Trinidad and Tobago, V. 500/. [Pro. 19 June 1813] ; O.'s in C. April 23 and June 30, 1831. Turkey. — Constantinople is the S. C. C, and under Foreign Juris- diction Act, P. within 15 day.s, V. 500/. O. in C. 30 Nov. 1864 ; O. in C Dec. 12, 1873 ; 14 H.'sT. 557. Security for costs to be given within one month from the filing of the motion paper for leave to appeal ; then, and not otherwise, the S. Consular Ct. shall give leave to appeal. In other cases the Court may give leave to appeal if it con- siders it just and expedient to do so. The Order of 1873 includes Adrianople, Brussa, Burgas, umii Lr.fj:!?,^!?^^ 1014 3 4 4 WILL. 4 c. 41.— APPEALS TO P. C. [IH33. Dardanelles, Enos, GalUpoli, Ghio, Ineboli, Lemnos, Panorma, Rhofies, Ro^^osto, Egypt, and ex- tended by O. in C.'.3 May 1882, Lon. Giiz. 2209, to seas of AzofF, Adriatic, Ejjcan, or Black Seas, and Mediterranean. Tiie Otto- man Dominions (Courts) Order (O. in C. 8 March 1805, ?fo. 1.30, Lon. Gaz. 151.5) gives si i-ehearing before a judgi^ and additional judge, except for Egyptian cases, and then an appeal to P. C. Egyjrtian a]) pea Is are to be heard before the judge and additional judge, and then<.'e to P. C. See Egypt. Turks and Critcos Islcnids were severed from the Hahaman and given to Jainaicd. Charter, 1848 ; O. in C. 187.S, and .36 Vict. c. 0. P. within .30 days. Laws of Turks and Caieos Fslands, p. 80. Uganda ProtectovKte, com- prising Vsoga, Uiiyoro, Ankolt, ilohi. r. O. L. 18 June 1804. Vniiconrcr Island, now part of Britixh Columbia. By O. in C. 4 April 185(5, it was P. 21 days, V. 300/. Van Dieiiicii's Land. See Aus- tralia, Ta.^mania, and CI. Col. Law, 653, 661. Victoria. See Australia. Virgin Islands. See Leeward Islands. West African Settlements. — Sierra Leone and Gambia. As to Sierra Leone, P. within 1 1 days, V. 300/. J Ch. of J. Oct. 1821 gives V. as 400/. See O. in C. 26 Feb. 1867. Territory adjacent to: O. in C. 24 Aug. 1895; St. R. No. 397; Laws of Gambia, pp. 308, 310; and O. in C. 24 Nov. 1891, St. R. 24 ; African Order, 15 Oct. 1889, Lon. Gaz. 5557. Application of FinvUrn Jurisdiction Act to Old Cal'dmr Bonny, Cameroons, Nf.w Cidahar, Brass, Opnro, New Bnnim, imii Benin Rivers. See Africa. West India Islands. See fVmdward and Leeward Idanih. f'Vestern Australia. .See .Ins- tralia. Western Pacific, J' V. 500/., througii S. C 11 Fiii. :iy>, , O.s in C. 1877, 1870, 1880; 14 \{\ T. 871, 1245; 15 H.'s T. 752. The.se O.s in C. are consolidnted in O. in C. 15 March 1893, St. \\ 312, 341; 38 & 39 Viet, c 51, 'J'hey inclu'lo Friendly, Naviga- tors [^ul>ject to Samoa Herliii Order, 14 June 1889], f';i(()/(, P/aeni.v, Ellice, Gilberts, SoIohkih [parts not within German jurisdic- tion], and Santa Cruz Islands. Windward Islands inelmle Barbados, Grenada, Grenadines, St. Lucia, and St. Vincent. P. 14 days, V. 500/. (! .<;: 7 AVill. 4. c. 17. s. 12. S-e Tar. Pap. 23 April and 20 June 1S,32. No. 432. ^7. Lucia, V. 300/. Code of Civil Procedure of St. Lucia, 1881, p. 166. The right has been given to appeal from S. C. »S^/. Vincent in a case dealing with land taken by the AVar Dept. St. Vincent Laws, 18GI, 398. Ct. of Appeal establishwl by 52 & 53 Vict. c. 33. Witu Protectorate. Adin. by Sultan of Zanzibar. O. in C. 31 July 1893; 19 H.'s T. 14. Zanzibar. See Bengal (Bom- bay). Ind. law in force. O. in C. 29 Nov. 1884 ; 17 H.'s T. 1092, Lou. Gaz. 5649. Zululand, from Chief Magis. to P. C. Pro. 21 June 1887, art. 30; 18 H.'.s T. 778. His Maje.sty may refer any other matters to Committco. 4. It shall be lawful for His Majesty to refer to the said Juilicial Committee for hearing or consideration any such other matters whatso- ever as His Maje.sty shall think fit, and such Coii.mittee shall thereupon hear or consider the same, and .shall advise His Majesty thereon in manner aforesaid. No matter to 5. ^o matter shall be heard, nor shall any order, report, or recomuien- be heard unless dation be made, by the said Judicial Committee, in puvniance of this Act, . c. [1H33. )n ol Forciirii o Old Cnlulmr, .V, Ne.w Cntafifir, 'cw Bninro, jiiul ee Africa, hlmiils. S(.'e ■ccivard hlniids. aha. Sir .\its- *'C, P. It (lay,, S- C. Fiji, 6.S JHHO; 14 \\.\ D H.'s T. 7oL>. ■<• coiisolidiitcd in •ell 1H!)3, St. K .39 Vict. c. 51. vcndly, Xai'iga- 3 Siiinoii Hcrliii ■^18891, f'''iw//, Tilbtrts^ Solomon Gcrniaii jiirisdif- Criiz f.slands. Islands iiicJiKJe dda, Grciuidini'S, I St. Vinreiit. 500/. G & 7 12. S"o nil'. Ill 20 Juno 1S32. Li(cia, V. 300/. L^roeedure of St. 166. The right to appeal from t in H case dealing n h\ the "War :ent Laws, 18Gt, Lppeal estalilished c. 33. 'orate. Adiu. by ibar. O. in C. a H.'s T. 11. fe Bengal {Bom- \n force. O. in 17H.'sT. 1092, u Chief Magis. to .ne 1H87, art. 30; the said Jiidiciid ■ matters wliatso- se shall thereupon ijcsty thereon in )rt, or reconinicu- lance of this Act, 183^.1 3 A 4 WILL. 4. c. 41.— EVIDENCE. 1016 unless in the presence of at least tour members of the .said Com- mittee; and No I'eport or recommendation shall be made to His Majesty unless 11 majority of thi^ members of such Judicial Committee present at the hearing shall concur in such i-cport or recommendation : Provided always, that nothing herein cor.tained shall prevent IIi< Majesty, if he shall think fit, from summoning any other of the members of his said Privy Council to attend the meetings of the said Committee. [fee 14 & 15 Vict. c. 83. s. 10, which made the quorum three.] 6, In case His Majesty shall be pleased, by directions under his Sign Manual, to require the attendance at the said Committee for the piu'poses of this Act of any member or members of the said Privy Council who shall l)e a judge or judges of the Court of King's Bench, or of the Court of Common Pleas, or of the Court of Exchequer, such arrangements for dispensing with the attend- ance of such judge or judges upon his or their ordinary duties during the tiuie of such attendance at the Privy Council as aforesaid shall be made bv the judges of the court or courts to which such judge or judges shall belong respectively in regard to the business of the court and by the judges of the said three courts, or by any eight or more of such judges, iuchuling the chiefs of the scmtuI courts, in regard to all other duties, as may be necessary and consistent with the public service. in presence of four [now three] membeni of the Com- mittee, nor report to \» made unless with concur- rence of majority pre.sent. In case the King directs the attendance nf any judge, a member of the Committee, the other judges of the court to •which he be- longs to make arrangements with regard to the business of the court. , in any Evidence may to examine '"-' t'llte" v:v4 voce, or upon written de- positions. 7, It shall be lawful for the said Judicial Committee matte" which shall be referred to such Committee, witnesses by word of mouth (and either before or after examination by deposition), or to endents, and things Powers of the "djoined to, arising out of, or connected witli api)eals from any Judicial Com- Ecdesittstical Court, [or from any Admiralty or Vice-Admiralty Court] J^'gJ*^*",,^ (save in giving a definitive sentence, or any interlocwtory decree 1020 6 & 7 VICT. c. 38.— PROCEDURE. [1«43. H .''V. ..' : gates in respect to nppfals from Ecclesias- ticnl nncl Ad- miralty Courts, 2 & 3 W. 4. c. 91. 3 & 4 W. 4. 0. 41. Who to bo surrogates and examiners of the Judicial Committee in Ecclesiastical and Admiralty appeals. Manner of conducting appeals before the Judicial Committee. Punishing contempts, compelling appearances, enforcing judgments, &c. in causes of appeal. having the forco and effect of a definitive sentence), the said Judicinil Committee and their surrogates shall have full power, snliicut to such I rules, orders, and regulations as shall from time to timo W made hvl the said Juclicial Committee (with the approval of Her Maicstv inl Council), to make all such interlocutory orders and decrees mid to! administer all such oaths and affirmations, and to do all such tiiini's asl may be necessary, or tlie judges of the courts below apiK'nled froni or| their surrogates in the cases appealed, or the judges of the comtsl appealed to or their surrogates, [or the Lords Couunissioiu'rs of Anpenlsl in Prize Causes or their surrogates,] and the judges delegate or tlieirl condelegates under commissions of appeal under the great soal iii| ecclesiastical and maritime causes of appeal, would respectively havo had! Iwfore an Act passed in the third year of the reigu of his latel Majesty, intituled " An Act for transferring the Powers of the Hifhl Court of Delegates, both in ecclesiastical and maritinw causes, to His! Majesty in Council," and another Act passed in the following Session ofl Parliament, intituled "An Act for the better administration of Justice! in His Majesty's Privy Council," were passed. [Words repcnlud in brackets, see ante, p. 902.] 3. The surrogates and examiners of the Arches Court of Canterlmni \ [and tlie High Court of Admiralty of Enyland], and such persons 1 as shall from time to time be appointed surrogates or examiners ofl the said Courts, shall be by virtue of this Act surrogates and exaiiiimTs j respectively of the Judicial Committee of the Privy Council in ail causes I of appeal from Ecclesiastical Courts [and from any Admiralty or Vice- Admiralty Court.] [Words repealed, p. 902.] 4. Repealed. 5. Subject to such rules and regulations as may from time to time be made by the said Judicial Committee with the approval of Her! Majesty in Council, and save and in so much as the practice tborcof I may be varied by the said Acts of the reign of his late Majesty or] by this Act, the said causes of appeal to Her Majesty in Council 'shall be commenced within the same times, and conducted in the same form and manner, and by the same persons and officers, as if ajipenls in the same causes had been made to the Queen in Chancery, [the Higii j Court of Admirrlty of En ff land, or the Lonls Couimissiouers I of Appeals in Prize Causes respectively ; and all things otherwise I lawfully done and expedited in the said causes of appeal by the registrar! of the High Court of Admiralty of England, his tleputy or deputies, in j consequence of the passing of the said Acts of the reign of bis latel Majesty, shall be deemed to be valid to all intents whatsoever.] [Words j repealed, p. 902.] 6. Repealed. 7. For better punishing contempts, compelling appearances, ami enforcing judgments of Her Majesty in Council, and all orders amlj decrees of the said Judicial Committee or their surrogates, in causes of appeal from Ecclesiastical Courts [and from Adminiltv or j Vice- Admiralty Courts,] Her ^lajesty in Council and the said Judicial! Committee and their surrogates shall have the same powers, In! attachment and committal of the person to any of Her Majesty's! gaols, and subsequent discharge of any person so committed, ns by any | statute, custom, or usage belong to the Judge of the High Court ofl Admiralty of jExflf/awt/; and the said Judicial Commhtee shall have the j same immunities and privileges as are conferred on the Judge of the j mm 1843.] 6 & 7 VICT. c. 38.— COSTS AND TAXATION. 1021 Hidi Court of Admiralty of England iiiidor an Act psisscd in the fourth I vear of the reign of Her Miijesty, intitnled " An Act to improve the 3 & 4 v pMCtice and extend the jnrisdietion of the Hi[ieal, wiiicji slmll b] taxed by the rejjistrar herein-after named, or his assistant ivi^triiil [See av'te, \\ 902.] Appointmciil 13. ['i'hat the registrar of the High Court of Admiralty of KunX of registrar nnd /^,„^/ for the time being may be appointed hy Her Majl'stv to Im assistant rt'fiis- recristrar of Her Majesty in ecclesiastical and maritime causes, aiii siusticnl and' '^''"'^ \m\i.' power to appoint an assistant registrai', as provided bv ad maritime Act passed in the fourth year of the reign of Her Majesty, intituici causos. " An Act to make Provision for the Judge. Registrar, and ]\lMislMii o] 3 &• 4 Vict. llie Jligh Court of Admiralty of E)i(ila)iitt; |). 902.] jiii Act for amcmding an Act passed in the Fourth Year of the Reii^ii of His hite Majesty, intituled " An Act For the better Administration of Justice in His Majesty's Privy Council " ; and to extend its Juris- diction and Powers. [6fh August 1844.] Preumblc! and sec. 1. This i)art of the Act narrated: — That by Jirrtiiiii " laws now in force in certain of Her Majesty's colonics and l»«ossions abroad no appeal can be brought to Her Majesty in Council ■if the reversal of the judguient.s, sentences, decrees, and orders of anv iMits of justice within .such colonic-, save only of the courts of Jrrror or courts of appeal within the same, and it is expedient that I Her Majesty in Council should be authorized to provide for the admis- ot appeals from other courts of justice within such colonies or Ipsessions." The Act then provided: — It siiall be competent to Her Majesty, by any Order or Orders to be lltiini time to time for that purpose made with the advice of Her Privy Council, to provide for the admission of any ai)|)eal or appeals hoHiT Majesty in Council from any judgments, sentences, decrees, or ci's of any court of justice within any British colony or possession I iliroad, although such court shall not be a court of errors or a court o[ nppeal within such colony or possession ; and it shall also be tompeteut to Her Majesty, by any such Order or Orders as aforesaid, to make all such provisions as to Her Majesty in Council shall seem meet (or the institutinj;; and prosecuting any such appeals, and for carrying into effect any such decisions or sentences as Her Majesty in Council 1 pronounce thereon : Provided always, th.at it .shall be competent holler Majesty in Council to revoke, alter, and amend any such Order or Orders as aforesaid, as to Her Majesty in Council shall seem meet: Provided also, that any such Order as aforesaid may be either general ind uxtcniling to all appeals to be brought from any such court of I justice as aforesaid, or special and extending only to any appeal to be Ironglit in any particidar case : Provided also, that every such general Order in Council as aforesaid shall be i)ublished in the London Gazette within one calendar month next after the uuiking thereof : Provided «l.«o, that nothing herein contained shall be construed to extend to take wiiy or diminish any power now by law vested in Her Majesty for regulating appeals to Her Majesty in Council from the judgments, SDtences, decrees, or orders of any courts of justice within any of Her Majesty's colonies or possessions abroad. Sees. 2, 3, 4, 5, 6, 7, dealing with extension of letters pat«nt, &c., repealed. [See head-notes.] Her Majesty, liy Order in Council, may provide for the adnii.'ision of nn appeal from any colony, although there .slmll not be a court of error or of appeal in such colony ; and niu}' re- voke such orders. Orders may be cither general or special. General orders to be pub- lished. Nothing herein to affect the present powers for regulating appeals from the colonies. i' m it !: \Wi \ M i-'f iintmpj M«iW 1024. 7 A 8 VICT. c. 69.— SPECIAL REFERENCE. [1R44, Judicifll Com- tnitteo mny appoint clerk of Privy Coun- cil to tnko proofs in mnttors ro- forrod to them. Judicial Com- mittee mny proceed to hearing of appeals with- out kpcciul order of reference. 8. Provided always, and be it Pimotcd, that in the enso of nny nintter or tliin;^ ivfoirpd to the Judicial Committee, it shall lie Inwfnl for the said Committee to apijoint one or other of the clerks of tln' Privy Council to talio any formal proofs re(|uired lo he taken in (Icalini' with the matter or tliiniliall lip duly lodged with the clerk o" the Privy Council, it shall he lawful for the said Judicial Comm^itee to proceed in hearing and reporting upon such appeal, without any special Order in Council referring the same to them, provided that Her Majesty in Council shall have, liy au Order in Council in the month of November, directed that all appeals shall be referred to the said Judicial Committee, on which petitions may bo presented to Her Majesty in Council dining the twelve months next after the making of such Order; and the said Judicial Connuitteo shall proceed to hear and report tipon all such apjieals in like manner as if each such apjieal bad been refeircd to the said Judicial Committe • by a special Order of Her Majesty in Council; Provided always, that it shall be lawful for Her Majesty in Countii at any time to rescind any general order .so made ; and in case of sudi Order being so rescincled, all petitions of appeals shall in the first instance be preferred to Her Majesty in Council, and shall not lie }>roceeded with by the said Judicial Committee without a special order of reference. 10. It shall be lawful for the said Judicial Committee to make an order or orders on any cotirt in any colony or foreign settlement, or foreign dominion of the Crown, requiring the judge or judges of such court to transmit to the clerk of the Privy Council a copy of the notes of evidence in any cause tried before such court, and of the reasons given by the judge or judges for the jiulgment pronounced in any case brought by appeal or by writ of error before the said Judicitd Committee. 11. It shall and may be lawful for the said Judicial (" immittee to make any general rule or regulation, to be binding upon all eomtii in the colonies and other foreign settlements of the Crown, requiring the judges' notes of the evidence taken before such court on any cause appealed, and of the reasons given by the judges of such court, or by any of them, for or against the judgment pronounced by sudi court ; which notes of evidence and reasons shall by such court be transmitted to the clerk of the Privy Council within one calendar montii next after the leave given by such court to prosecute any appeiii to Her Majesty in Council ; and such order of the said Committee shall be binding upon all judges of such courts in the colonies or foreign settle- ments of the Crown, 12. In all causes of appeal to Her Majesty in Coimcil from Ecclesi- astical Courts, [and from Admiralty or Vice-Admiralty Courts], which now are or may hereafter be depending, in which any person duly monished or cited or requested to comply vnth any lawful order or decree of Her Majesty in Council, or of the .ludicial Coniniittee of the Privy Council or their surrogates, made before or after the passing of this Act, shall neglect or refuse to pay obedience to such lawful order or decree, or shall commit any contempt of the process mfm ' TERENCE. [1S44. ; in the onso of any tteft, it shall ln' lawful I to he tiiken in (Icaliiif; ' they so think fit, pro- formal proofs luul been or shall he prosonted, itieh petition shall be icil, it shall he lawful hiMiring and reporting 1 Conncil referring the Council shall have, by oveniher, tlireetcd that a\ Conunittee, on which in Council timing the 1 Order; and the suiil i report iipon all such lad heen referred to the -ler Majesty in Council: !• Majesty in Comicil at e ; and in case of sudi ipeals shall in the first iincil, and shall not lie 3 witliout a special order I Committee to make an ■ or foreign settlement, the judge or judges of :>rivy Council a copy of e siich court, and of the judgment pronounced in before the said Judiciiil ;aid Judicial ('Miumittee binding upon alt comts of the Crown, requiring ore such covut on any the judges of such court, ent pronounced by such s shall by siKdi court ncil within one calendar , to prosecute any appeal the said Committee shall colonies or foreign settle- in Council from Ecclesi- Vice-Adrairaltv Courts], ig, in which any per«)n ly Avith any lawful order the Judicial Committee lade before or after the ) pay obedience to such contempt of the process lj5l.] H & 15 VICT. c. 83.— QUORUM OF J. C. 1026 under the seal of Her Majesty in ecclesiastical [and maritinio] causes, it shall be lawfid for the said Judicial Committee or tiieir surrogates to pronoiuice .such pers').i to be contuuiacious and in contempt, and, after he or she shall have been so pronounced contumacious and in contempt, to cause process of setpu'stnition to issue under the said seal of Her Majesty against the real and personal estate, fjoods, chattels, and effects, wheresoever lying within the dominions of Her Majesty, of the person against or upon whom such order or decree shall have been maile, in order to enforce obedience to the same and payment of the expenses attending such setpiestration, and all proceedings consetpient thereon, nnd to nuike such fiu'ther order in respect of or consetiuent on such sequestration, and in respect to such real and personal estates, goods, chattels, and effects sequestrated thereby , as nniy be neee.ssary, or for pavment of moneys arising from the same to the person to whom the siune amy be due, or into the registry of the High Coiut of Admiralty and Appeals, for the benefit of those wiio may he ultimately entitled liiereto. [See words repealed, ante, p. S)02.] 13. Repealed. 14 & 15 VICT. (1851) c. 88. Amending 3 & 4 Will. 4. c. 11. as to the quorum of the Judicial Committee. See. 16 provided : " JiTo matter shall be heard, nor shall any order, re[)ort, or recommendation be nnide by the Judicial Committee in piu'suance of any Act, unless in the presence of at least three members of the said Committee, exclusive of the Lor t 1026 30 & 40 VICT. c. 69.— APPELLATE ACT. [\m. Where any person was appointe of Lords, and repealing sees. 20 and 21 of the Judicature Act of 1S73.] Sec note, ante, p. 10.5. 39 & 40 VICT. (1876) c. 59. Appellate Jurisdiction Act, 1876. Appointment of Q, For the purpose of aiding the House of Lords in the hearing and ^ n^''^^^''^''' determination of appeals Her Majesty may at any time . . , hv H Maiestv letters patent appoint two (jualified persons to be Lords of Appeal iu Ordinary. A person shall not be qualified to bo appointed by Her Majcstv a Lord of Appeal in Ordinary unless he has been at or iiufoic tliotiiuc of his appointment the holder for a period of not less than two U'liis of some one or more of the oiriees in this Act described as lii(;li jndiciiil offices, or has been at or before such time as aforesaid for not Ic.^s tliiin fifteen years a practising bai'rister in Eiir/land or Ireland, or n praetisini,' advocate in Scotland. Every Lord of Appeal in Ordinary shall hold his office (liirinjj gond behaviour, and shall continue to hold the same notwithstanding tin' dcnii^i' of the Crown, but he may be removed from such office on the address of both Houses of Parliament. There shall be paid to every Lord of Appeal in Ordinary a salary of 6,000/. a year. Every Lord of Appeal in Ordinary, unless he is otherwise entitled to sit as a member of the House of Lords, shall by virtue and according to the date of his appointment be entitled during his life to rank as a baron by such style as Her Majesty may be pleased to appoint, and shall ... be entitled to a writ of summons to attend and to sit and vote in the House of Lords ; his dignity of a Lord of Parlimnent shall not descend to his heirs. [Sec 50 & 51 Vict. c. 70. s. 2, a rightgiveuto sit and vote in the House of Lords during life.] On any Lord of Appeal in Ordmary vacating his ollice In- death, resignation, or otherwise, Her Majesty may fill up the vacancv bv the appointment of another qualified person. A Lord of Appeal in Ordinary shall, if a Privy Coiuicillor, be a member of the Judicial Committee of the Pri\y Council, and, subject to >al in Ordiimi'V » saliiry of f !' I T 1S76.] .19 A 40 VICT. o. SO— LORDS IN ORDINARY. 1027 the (iiio pprformanco !)v n Lord of Appnal in Onliniiry of his duties as tn tiiP liearinf: iind dt'to-ininiuK of appciil.s in tho Mouse of Lonis, it jliiillhe his duty, b(i:i;,'ii Privy Councillor, to sit and act as a nienihtT oi tlio .Juiliciul Committtu' of tlic I'rivy Council. 9. For preventing diday in tlio administration of justifu- tho llonse llenring and of Lords may sit and act for the pui-prjso of hearing luid detcTmining dpterminfttion BpiK^ftls, and also for tlx' purpose of Lords of Appcid in Ordiiiarv taking ?f i^PP"-'*'* Jur- ilioir .seats and the o; :lis, during any prorogation of I'arliaiuent at llJ^iifiXmunt''' idi tinio and in such nuvrnusr as may he ap[)ointed by order of the Hdiise of Lords made during the preceding session of Parliament ; and all orders and i)rocce(lings of the .said House in relation to appeals ami iiiiittcrs connected tiierewith during such prorogation shall l)e as valid iisif Parliament lia.l heon then sitting; hut no husines.s other than the liiiiriiif,' antl determination of appeals and the matters connected there- witli, and Lords of Appeal in Ordinary taking their seat.s and the oaths as . ''ore.'faid, shall he transacted by such House during .such prorogation, Wonls repealed by S. L. R. Act liave been deleted, 57 & oH Vict, c. 56.] Sec. provided for the hearing and determination of appeals diu'ing ailissolution of Parliament, and that " It .shall be lawful for Her Majesty, l)v writing under her sign manual, to authorize the Lords of Appeal in the iinine of the Hou.se of Lords to hear and determine appeals during the liissolution of Parliament, and for that purpose to .sit in the House of Lords at such times as maybe thought expedient; ond upon such (lutlinrity as aforesaid being given by Her Majesty, the Lords of Appeal ffliv, during such dissolution, hear imd determine appeals and act in all mttcrs in relation thereto in the .same manner in all respects as if their iiilinj;s were a continuation of the sittings of the House of Lords, and my ill tlie name of the House of Lords exer -iso the juri.sdiction of the House of Lords accordingly." 14. [Whereas by the Act of the ses.sion of the thirty-fourth and Ainondment of lirtytirtli years of the reign of her present Majesty, chapter ninety- tho Act of 34 & le, intituled " An Act to make further ))ro\ision for the desijatch of ''S V"'*'''' **'•• _ __ . _ - _ ^. . .... .... * _ -nitlntinrr Trt till* I'lie, iiisiness by the .Tiulicial Committee of the Privy Council," Her Majesty "„','jjti"tuti was empowered to appoint and did appoint fo\ir persons qualified as in the Privy iliat Act mentioned to act as members of the Judicial Committee of the Council Privy Council at such salaries as are in the said Act mentioned, in this Act referred to as paid judges of the Judicial Committee of the Privy I Council : And whereas the power given by the said Act of filling any vacancies I ooca,«ioned by death, or otherwise, in the offices of the persons so appointed, has lapsed by efHux of time, and Her Majesty has no power I to fill any such vacancies : it enacted, That whenever any two of the paid judges of the I Judicial Committee of the Privy Council have died or resigned], Her Majesty may appoint a third [Lord of Appeal in Ordinary in addition to the Lords of Appeal in Ordinary herein-before authorized to be ippointed,] and [on the death or resignation of the remaining two paid judges of the Judicial Committee of the Privy Coimcil Her Majesty may appoint] a fourth L—d of Appeal in Ordinary, in addition to the Lords of Appeal in Ordinary aforesaid ; and may from time to time fill up any vacancies occurring in the offices of such third ond fourth Lord of Appeal in Ordinary. [Within brackets repealed by S. L. R. Act, W,c. 56.] Any Lord of Appeal in Ordinary appointed in -pursuance of this I section shall be appointed in the same manner, hold his office by the 3t 2 to the ion of II! ■; ! 1 1028 44 & 45 VICT. V. 3. -LORD JUS TICES. [18S1. same tenure, be entitled to the siunc siilary and pension, miuI In .,111 respects he in the same position as if he were a Lord of Apponl in I OnUnary appointed in pursuance of the power in this Act before given I to Her Majesty. j Her Majesty may by Order in Council, with the advice of tliel Judicial Committee of Her Majesty's Privy Council or any live of them k of wliom the Lord Chancellor shall be one, and of the archbishops andl bishops beinfi members of Her Majesty's Privy Council, or iiny two ofl them, make rides for the attendai'.ce, on the hearinj; of t'cclcsiiisticall cases, as assossoi's of the said Connnittee, of such number of tlie mvli.| bishops and bishops of the Church of England as may be di'turniiiu'd livf such rides. The rules may provide for the assessors beiny Order in (\»uncil annul the same, and the rule so annulled slialll thenceforth beconu^ void, but without i)rejudiee nevertheless to tliel making of any other rule in its place, or to the validity of anyfliiiii; wliiehf nuiv in the nu>antime have Ihmmi done under any such ride. i}y sec. 24, sees. 2l) and 21 of .S6 ii^: ."{7 Yict. (187.'{) c. G6.. whicii attempfed to abolish the House of Lords anil the Judicial Coinuiitteei supreme and ultimate appeal courts, were rei)eale(l. By sec. 25, " high judicial office " means any of the follow ingofliees; The ofliee of Lord Chancellor of Great Britain or Irrhinil or olj paid Judge of the .ludicial Connnittee of the Privy Council, or of jiidi.'*^ of one of Her Majesty's superior courts of Great Uri/aiii iind IrehiiidM And in till' latter e\|)ression, " Superior courts" means, ns to l-jii/ldiidl Hei Majesty's Higli Court of Justice and Her Majesty's Court of Appeal, itc. ; as to Ireland, the superior courts of l.nv and ei[nity iijj Dul)lin ; as to Scotland, the Court of Session. This was antendcnl by 50 & 51 Vict. c. 70., which see l)elo\v. 4J. & 15 VICT. (1881) c. 3. 1. Every person holding or who has held in /i«7/(/»r/ the ofliee ut' i Lord Justici' of Appeal shall, if a member of Her Mnjesty's I'mj Council in Kiif/laiid, be a member of the Judicial Couiniiltee of i Privy Council. 46 & 47 VICT. (1883) c. 67. Patents, Bosij^ns, and Trade Marks Act. Hy see. 25, th« term of a patent may be extended by tiie Mm Committee, :icEs. llHHl, 50 & 51 VICT. c. 70— APPELLATE JUU. 1029 1(1 ppusioii, iiiul in all I a Lord of Appeal in I in this Act before given! ith the advice of thel >ieil or any live of them,| of the archlii^^Uops aiuil ■ Council, or any two ofl hearinj; of eci'lesiiistioill I'll iiiiiiilH'r of the urch.p IS may be detenuineil liv| n' the prorogation of Parliament: Be it enacted that, notwithstanding anything in the eighth section of the said Act contained, every Lord of Appeal shall be einpowei'ed to take his .seat and the oaths at any such sitting of the House ol Lords during prorogation. 2. The sixth section of the Appellate .Turi.sdiction Act, 1S7G, shall he ("onstrued and take effect, as well in i'es|)ect of any Lord of Appeal in Ordinary heretofore appointed under that Act, as of any such Lord kwafter api)ointed, so as to entitle any person so appointed to sit and vote as a member of the House of Lords during his life as fully as if the words '' during the time that he continues in his ollice as a Lord of .\ppenl in Orilinary, and no longer" had been omitted from the said section. 3. The Judicial Committee of the Privy Council as formed under the provisions of the first section of the Act of the third and fourth William llio Fourth, chapter forty-one, intituled " An Act for the better adniiiiis- tmtion of Justice in His Majesty's Privy Council," shall include such uuMuliers of Her Majesty's Privy Council as are for the time being holding or have held any of the oilices in the Appellate Jurisdiction Act, 1876, and this Act, described as high judicial oilices. 4. Any person who shall in virtue of the thirtieth section of the Act of the third and fourth William the Fourth, chaj»ter forty-one, attend the sittings of the Judicial Coininittee of the Privy Council, shall be liecnieii to lie included as a member of the said Coininittee for all purposes, and shall, if there be only one such person, be entitled to receive the whole amount of the siiiiis by the .said section providwl, that is to sny, eight hundred pounds for every year during which he shall so attend ; but if there shall at any time lie two such persons, they shall severally be entitled to the sums provided in the sjiid section. 5. The expres.sioii " high judicial ollice " as defined in the twenty- lifth section of the Appellate jurisdiction Act, 1876, shall be deemed to include the office of a Lord of Appeal in Ordinary and the office of a Member of the Judicial Committee of the Privy Council. 6. This Act may be cited as the Appellate Jurisdictiou Act, 1887. 57 & 58 VICT. c. 39. The " Trize Courts " Act, 1894, ante, p. 926. 39 & 40 Vict, c. 5f>. Lord of Appeal may take his seat (luring prorogation. Retired Lord of Appeal in Ordinary amy sit in House of Lords. Amendment of 3&- 4AV. 4. c, 41. Kemuneration in Judicial Committoo. Amendment of 39 & 40 Vict, c. 69. s. 2fi. Short titla. gBKntaaniHiUMia 1030 68 & 59 VICT. c. 44.— COL. MEM. OF P. C. [1895. 68 & 59 VICT. (1895) c. 44 An Act to amend the Law relating to the -ludicial Committee of her Majesty's Privy Council. [Qth July 1895.] BE it enacted by the Queen's most Excellent Majesty, by aiul with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the autliority of the same, as follows : — Provision as to 1. — (!•) ^^ '^'^.V person being or having been Chief Justice or a judge persons licing of the Supreme Court of the Dominion of Canada, or of a superior or haying liion court in any province of Canada, of any of the Australasian colonies colonial Chief mentioned in the schedule to this Act, or of cither of the Soutii African Justices or colonies mentioned in the said schedule, or of any other Superior Court in Her ^Majesty's dominions named in tliat behalf by Her Majesty in Council, is a member of Her Majesty's Privy Council, he shall i)e a member of the Judicial Committee of the Privy Council. (2.) The number of persons being members of the Judicial Com- mittee by reason of this Act shall not exceed five at any one time. (3.) The provisions of this Act shall be in addition to, and shall not affect, any other enactment for the appointment of or relating to memhers of the Judicial Committee. Short title 2. This Act may be cited as the Judicial Committee Ameudnicnt Act, 1895. ;: • ; ■ SCHEDULE. A ustralasian Colonies. New South Wales ; Xew Zealand ; Queensland ; South Australia ; Tasmania; Victoria; Western Australia. South African Colonies, Cape of Good Hope ; Natal. [The Lords of Appeal in Ord. ary are: — Lord Watson, Lord Mac- naghten. Lord Morris, and Lord Davey. The salary paid to each Lord of Appeal in Ordinary is (>,(X)0/. The following frequently attend the meetings of the Judicial Commit- tee when colonial, Indian, and Ecclesiastical appeals ; Patent extensions and Special Keferences are heard: Lord Halsbury, Lord Ciiancellor ; Lord Her.schell, ex-Lord Chancellor ; Lord Penzance ; Lord Hohiiouse ; Lord Ashbourne, Lord Chancellor of Ireland, Avhen not engaged in Ireland ; Lord Shand, retired Lord of Session, Scotland [a court answering to the Court of Appeal in England] ; Sir Richard Couch, retired Indian judge ; Lord Field ; Hon. George Denman ; the Master of the Rolls ; the Lord Chief Justice ; and the President of the Divorce Court; and lately Lord James of Hereford has sat. The Lord Justiiis who are P. C.s can also be summoned. The majority of these Lords also sit in tlie House of Lords on the hearing of appeals, Judges, therefore, who decide linally tiio law for England, Ireland, and Scotland; also, more or less, decide the law finally for all the colonies, India, &c.] * ; 1^:: ittee Ameudiiu'iit Act, 1890] 53 & 51 VICT. c. 37.— FOR. JURISDICTION ACT. 1031 53 & 5i VICT. (1890) c. 37. An Act to consolidate the Foreign Jurisdiction Acta. [4th Auyufit 1890.] [Authority exorcised, see n., p. 1041.] WHEREiVS by treaty,^ capitulation, grant, usage, sufferance, and other lawful means. Her Majesty the Queen has jurisdiction within divers foreign coun- tries, and it is expedient to consolidate the Acts re- lating to the exercise of Her Majesty's jurisdiction out of her dominions : Be it therefore enacted by the Queen's most Excellent JIajcsty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. It is and shall be lawful for Her Majesty the Exercise of Queen to hold, exercise, and enjoy any jurisdiction 'in"or!i^gir which Her Majesty now has or may at any time here- •^"^"''y- I f ! i d ; South Australin ; vhen not ('nmigcd in ^Seo Imperial Japanese Go- vernment V. P. Sf O. St. Xai-i- gatioii Coif. [1895], A. C. 641; where tlio Judiciul Committee bekl, that as by treaty a Japimese can only sue a British subject in the Britisli Consular Courts in Japan, so also a eounterclaini by a British subject nguinst a Japanese can only be heard in the Territorial Courts of Japan. Nor can a Japanese or Chinese siitiject when sued by a British Mihjwt in u Japanese or Chinese Court claim to have his counter- claim adjudicated upon in that Court and in that action. But the question depends on the construction to be put on each particular treaty which may be in qtiostion. The above case was one of collision, in which, shortly, both parties alleged that the other was to blame. The British subject was sued in Her Majesty's Court for Japan, and in reply lodged a coun- terclaim, and asked that security should he given by the Japanese litigant to abide the result. Lord Hersch"ll, L.C., in giving judgment, said: "The defendant [the British subject] has obtained, by virtue of a treaty made with his Sovereign, complete immunity from process in the Territorial Courts, which would otherwise be open to the plaintiff. It is difficult to see on what grouT\ds a British subject can insist, when sued in his own Consular Court, that the Court shall take cognizance of, and adjudicate n|)on, a claim which he makes against a Jaiuinesr. It appears to their lordships that it would be in violation of the treaty, and in e.\cess of the jurisdiction which the sovereign power of Japan, in derogation of its own sovereign rights, hfM granted to the British Consular Courts, if it were to yield to such a contention," tf I il u m il ll m! 1032 53 & 54 VICT. c. 37.— FOB. JURISDICTION ACT. [1890. after have within a foreign country in the same and as ample a manner as if Her Majesty had acquired that jurisdiction by the cession or conquest of territory. 2. Where a foreign country is not subject to any Exercise of jurisdiction i. i r • i over British government from whom Her Majesty the Queen might couiiTrits" obtuiu jurisdiction in the manner recited by this Act, goverleX"' Her Majesty shall by virtue of this Act have jurisdiction over Her Majesty's subjects for the time being resident in or resorting to that country, and that jurisdiction ^ shall be jurisdiction of Her Majesty in a foreign countrv within the meaning of th(; other provisions of this Act. ;-J Validity of Acts done in pursuance of jurisdiction. Evidence as to existence or extent of juris- diction in foreign country. 3. Every act and thing done in pursuance of any jurisdiction of Her Majesty in a foreign country shall be as valid as if it had been done according to the locrl law then in force in that country. 4. If in any proceeding, civil or criminal, in a court in Her Majesty's dominions or held under the authority of Her Majesty any question arises as to the existence or extent of any jurisdiction of Her Majesty in a foreign country, a Secretary of State shall, on the application of the court, seiid to the court within a reasonable time his decision on the question, and his decision shall for the purposes of the proceeding be final. (2.) The court shall send to the Secretary of State, in a document under the seal of the court, or signed hy a judge of the court, questions framed so as properly to raise the question, and suflScient answers to those ques- tions shall be returned by the Secretary of State to the court, and those answers shall, on production thereof, be conclusive evidence of the matters therein contained. Power to 5. — (1.) It shall bc lawful for Her Majesty the ments in First Quccu in Couucil, if shc thiuks tit, by Order to direct '^ that all or any of the enactments described in the First Schedule to this Act, or any enactments for the time being in force amending or substituted for the same, shall extend, with or without any exceptions, Schedule. i in rF r TION ACT. [1890. 1890.] 53 & 54 VICT. c. 37.— TRIAL OF ACCUSED. 1033 tions, or modifications in the Order mentioned, to any foreign country in which for tlie time being Her ilajesty has jurisdiction. (2.) Thereupon those enactments shall, to the extent of that jurisdiction, operate as if that country were a British possession, and as if Her Majesty in Council were the Legislature of that possession. 6.— (1.) Where a person is charged with an offence Power to send cognizable by a British court in a foreign country, any with offences person having authority derived from Her Majesty in a°Br™sh*'' that behalf may, by warrant, cause the person so possession, charged to be sent for trial to any British possession for the time being appointed in that behalf by Order in Council, and upon the arrival of the person so charged in that British possession, such criminal court of that possession as is authoirzed in that behalf by Order in Council, or if no court is so authorized, the supreme criminal court of that possession, may cause him to be kept in safe and proper custody, and so soon as con- veniently may be may inquire of, try, and determine the offence, and on conviction punish the offender according to the laws in force in that behalf within that possession in the same manner as if the offence had been committed within the jurisdiction of that criminal court. Provided that — (fl.) A person so charged may, before being so sent for trial, tender for examination to a British court in the foreign country where the offence is alleged to have been committed any competent Avitness whose evidence he deems material for his defence and whom he alleges himself unable to produce at the trial in the British possession : {!).) In such case the British court in the foreign country shall proceed in the examination and cross-examination of the witness as though he had been tendered at a trial III f 1034 53 &■ 54 VICT. c. 37.— PUNISHMENT. [1890. before tha< court, and shall cause the evi- dence so taken to be reduced into writing, and shall transmit to the criminal court of the British possession by which the person charged is to be tried a copy of the evidence, certified as correct under the seal of tie court before which the evidence was taken, or the signature of a judge of that court : (c.) Thereupon the court of the British possession before which the trial takes place shall allow so much of the evidence so taken as Avould have been admissible according to the law and practice of that court, had the witness been produced and examined at the trial, to be read and received as legal evi- dence at the trial : {(l.) The court of the British possession shall admit and give effect to the law by which the alleged offender would have been tried l)y the British court in the foreign country in which his offence is alleged to have been committed, so far as that law relates to the criminality of the act alleged to have been committed, or the nature or degree of the offence, or the punishment thereof, if the law differs in those respects from the law in force in that British possession. (2.) Nothing in this section shall alter or repeal any law, statute, or usage by virtue of which any offence committed out of Her Majesty's dominions may, irre- spectively of this Act, be inquired of, tried, determined, and punished within Her Majesty's dominions, or any part thereof. Provision as to 7. Whcrc an offender convicted before a punTshment court in a forcigu country has been sentenced l)y that llmicted. court to suffcr death, penal servitude, imprisonment, or any other punishment, the sentence shall be carried into efEect in such place as may be directed by Order in 1890.] 53& 54 VICT. c. 37.— VALIDITY OF ACTS DONE. 1035 Council or be determined in accordance with directions given by Order in Council, and the conviction and sen- tence shall be of the same force in the place in which the sentence is so carried into effect as if the conviction had been made and the sentence passed by a competent court in that place. 8. Where, by Order in Council made in pursuance of Validity of this Act, any British court in a foreign country is under order authorized to order the removal or deportation of any '" """'^' ' person from that country, that removal or deportation, and any detention for the purposes thereof, according to the provisions of the Order in Council, shall be as lawful as if the order of the court were to have effect wholly within that country. 9. It shall be lawful for Her Maiesty the Queen in Poww to assign juris- Council, by Order, to assign to or confer on any court diction to in any British possession, or held under the authority of incises wl'thfn Her Majesty, any jurisdiction, civil or criminal, original J°risdi"tion or appellate, which may lawfully by Order in Council ^^'• be assigned to or conferred on any British court in any foreign country, and to make such provisions and regulations as to Her Majesty in Council seem meet respecting the exercise of the jurisdiction so assigned or conferred, and respecting the enforcement and execution of the judgments, decrees, orders, and sentences of any such court, and respecting appeals therefrom. ! I ■ t 10. It shall be lawful for Her Majesty the Queen in Po^'^p to Council to revoke or vary any Order in Council made in in Council, pursuance of this Act. 11. Every Order in Council made in pursuance of tliis ^^y^ps before Act shall be laid before both Houses of Parliament and effect of forthwith after it is made, if Parliament be then in coundil" session, and if not, forthwith after the commencement of the then next session of Parliament, and shall have effect as if it were enacted in this Act, ' i' In what cases Orders in Council void for repug- nancy. Provisions for protection of persons acting under Foreign Jurisdiction Acts. 1036 53 & 54 VICT. c. 37.— REPUGNANCY OF O. IN C. [l89o. 12. — (1.) If any Order in Council made in pursuance of this Act as respects any foreign country is in any respect repugnant to the provisions of any Act of Parlia- ment extending to Her Majesty's subjects in that country, or repugnant to any order or regulation made under the authority of any such Act of Pailiamont, or having in that country the force and effect of any sucli Act, it shall he read subject to that Act, order, or regu- lation, and shall, to the extent of such repugnancy, hut not otherwise, be void. (2.) An Order in Council made in pursuance of this Act shall not be, or be deemed to have been, void on the ground of repugnancy to the law of England unless it is repugnant to the provisions of some such Act of Parliament, order, or regulation as aforesaid. 13. — (1.) An action, suit, prosecution, or proceeding against any person for any act done in pursuance or execution or intended execution of this Act, or of auy enactment repealed by this Act, or of any Order in Council made under this Act, or of any such jurisdiction of Her Majesty as is mentioned in this Act, or in respect of any alleged neglect or default in the execution of this Act, or of any such enactment. Order in Council, or jurisdiction as aforesaid, shall not lie or be instituted— («) in any court within Her Majesty's dominions, unless it is commenced within six months next after the act, neglect, or default complained of, or in case of a continuance of injury or damage, within six months next after the ceasing there- of, or where the cause of action arose out of Her Majesty's dominions, witliin six months after the parties to the action, suit, prosecution, or proceeding have been within the juris- diction of the court in which the same is in- stituted ; nor (6) in any of Her Majesty's courts without Herj Majesty's dominions, unless the cause of action arose witliin the jurisdiction of that court, "T WW F O. IN C. [1890. 1890.] 53 & 54 VICT. c. 37.— PROTECTED PERSONS. 1037 and the action is oommenced within six months next after the act, neglect, or default com- plained of, or in case of a continuance of in- jury or damage, within six months next after the ceasing thereof. (2.) In any such action, suit, or proceeding, tender of amends before the same was commenced may he pleaded ia lieu of or in addition to any other plea. If the ac- tion, suit, or proceeding was commenced after such tender, or is proceeded with after payment into court of auy money in satisfaction of the plaintiff's claim, and the plaintiff does not recover more than the sum tendered or paid, he shall not recover any costs incurred after such tender or payment, and the defendant shall be entitled to costs, to be taxed as between solicitor and client, as from the time of such tender or payment ; but this provision shall not affect costs on any injunction in the action, suit, or proceeding. 14. It shall be lawful for Her Majesty the Queen in Jurisdiction Council to make any law that may seem meet for the cortai* "ILtem government of Her Majesty's subjects being in any ''®"^" vessel at a distance of not more than one hundred miles from the coast of China or Japan, as f idly and effectually as any such law might bo made by Her Majesty in Council for the government of Her Majesty's subjects being in China or in Japan. 15. Where any Order in Council made in pursuance Provision a.s to of this Act extends to persons enjoying Her Majesty's Indian princes, protection, that expression shall include all subjects of the several princes and states in India. 16. In this Act, Definitions. The expression " foreign country " means any country or place out of Her Majesty's dominions : The expression " British court in a foreign country " means any British court having jurisdiction out of J i 1 ii' i ■V' '■ -f i ;3 tk, i ■ 1038 S3 & 54 VTCT. o. 37.— ACTS IN AID, [1800. Her Majesty's dominions in pursuance of an Order in Council whether made under any A ^^t or otlier- wise : The expression "jurisdiction" includes power. ^pTaUrvury 17. The Acts mentioned in the Second Schedule to Aotg in Second tliis Act mav 1)0 revoked or varied by Her Maiestv l)v Schedule. /^i./-..i >' J J Order m Council. Repeal. js. Tlio Acts mentioned in the Third Schedule to this Act are hereby repealed to the extent in tlio tliird column of that schedule mentioned : Provided tliat, — (1) Any Order in Council, commission, or instruc- tions made or issued in pursuance ol any enact- ment repealed by this Act shall, if in force at the passing of this Act, continue in force, until altered or revoked by Her Majesty, as if made in pursuance of this Act ; and shall, for the purposes of this Act, be deemed to have been made or issued under and in pursuance of this Act; and (2.) Any enactment. Order in Council, or document referring to any enactment repealed l)y this Act shall be construed to refer to the cor- responding enactment of this Act. Short title. \Q^ — (1.) This Act may be cited as the Eoreign Juris- diction Act, 1890. (2.) The Acts whereof the short titles are given in the First Schedule to this Act may be cited by the respective short titles given in that schedule. 1890,] 53 * 54 VICT. c. 37.— ACTS IN AID. 1039 ICC of an Order ly A t^i or otlier- )nd Schedule to Her Majesty by ird Schedule to tent in the third •ovided that, — ion, or instruc- ice ol any enact- 11, if ill force at lie in force, until jesty, as if made id shall, for the ed to have been iirsuaiicc of this cil, or document •opoalod hv this 3ler to the cor- Act. le Toreign Juris- SCHEDULES. FIRST SCHEDULE. Sections 5, 10. Sossinii mid CImptcr. IJiW Vict. c. Ofl. • ItJklSVii't. 0. O^- KllsVic't. c. 104. lJJt20Viof. 0.118. HVictf. 'iO.- HiaSViot. e. CS.- StilViot. c. 122. itii", Vk'l. c. 11.- Title. Enaotmpnts whirl! may be (ixtonded by Order I in OouMoil. Short Title. 00431 Vict. e. 124. 3;i38Vlct.c. 9^.- Hi45Vlct. e. Oa.- tStlllVict. c. 74." An Ant to prnvidn for thu Pro- secution nnd Trial in Hur Majesty's tJolonics of Ollnnciis committed within the jnris- diction of till' Admiralty. An Act to ainciiil the law of ovidcncc. The Morclianl Sh'-ipinK Act, An Act to provit' for takiiiK evidence in Hor ..lajcsty's Do- millions in iTlation to civil and cniiiinercial matter!! pciidiiiK before ForeiKii Irilmnals. An Ant to provide for takiiii? evidenco in Suits and Proceed- ings puniliiiK before Triliiiimis in Her Majesty's Dominions, in places ont of the jurisdic- tion of such trilninals. All Act to all'ord Facilities for the in...'e certain Ascertain- nicnt of the Law administered ill one iiart of Hor Majesty's Dominions, when pleaded in the Courts of another part thereof. An .\ct to oiiablo the I.egisla- turcs of Her .Majesty's Posses- sions Abroad to make eiiiict- inoiits similar to the Eiiact- niciit of the Act ninth GoorKe the Fourth, chapter thirty-one, section eiitht. An Act to all'ord facilities for the better ascerlaiiiiiient of the Law of FoieiKii Ooiiiitries when pleadeil in Courts within Her Majesty's Doiniiiioiis. The Merchnnl Shipping Act, 18«7. The Conveyancing (Scotland) Act, 1874. The Fugitive Offenders Act, 1881. The Evidenco by Commission Act, 1885. The whole Act ' - Admiralty Of- fences (Colonial) Act, 1840. .Sections seven and Evidence Act, 1851. eleven.' Part X.> Tho whole Act * Tlio whole Act ' Tho whole Act « The whole .\ct " Foreign Tribunals Hvidciice .\ct, 18:.t). Evidenco by Com- mission Act, 1859. British Law Ascer- tainment Act, 18311. Admiralty Of- fences( Colonial) Act, 18H0. The whole Act * - , Foreign Law As- I oerlainnient.\ct, 1801. Section eleven.' Section fifty-one "> , The whole Act." i The whole Act." ' See ante, p. 703. ■ Proof of Foreign Statutes nn 1 Juflp;mont8. ' .Sec Part 8 of Act of 1894, ante, p. 977. * Citiition of witnesses. '' Sec. t; extended by 48 & 49 Vict. c. 74. s. 5. ' One court can remit a case to another court for its opinion aa to tLe iaw applicable to the facts, but neither the P.O. nor the H.L. need adopt that opinion. '9 Goo. 4. c. 31. offences against the person; see 24 & 25 Vict. o. 100. and Miendiiifr Acts. ' Power given to Sup. British Court by convention with foreign state to remit a case with queries to a foreign court for its opinion, and vice versd. » See ante, p. 994, sec. 686, 57 & 58 Vict. c. 60. '" Production of the probate of a will granted in any British colony or depen- dency to be as effectual as production of the will. " Anti; p. 826. " Amend. 22 Vict. c. 20. Power to nominate a fit person to take evidence outside the jurisdiction. 1040 .53 & i54 VTCT. o. 37— ACTS REPEALED r 181)0. Section 17. SECOND SCHEDULE. Acts whii'h may be revoked or varied hy Order in f'oiinril. Seuion mill Clmpter, 24 & 25 Vict. c. 31. 26 & 27 Vict. c. 35. Title. ' Kttcnl nf lU'iieal. All Aft for tho prevention 'Die whole Act. iind piinishnii'nt of offences eoininitted liy Her Ma- I jesty's snhjeets within eer- ' tain territories adjueent to the colony of Sierra | Leone' An Act for the prevention > The whole Act. and punishment of offences committed hy Her Ma- jesty's subjects in South Africa.2 Section 18. Sesiion nnil Chapter. THIRD SCHEDULE. Enactments repealed. Title or Short Title. Extent o( Repeal, & 7 Vict. c. 91. - The Foreign Jurisdiction Act, The whole Act 1843.3 20 & 21 Vict. c. 75.- An Act to confirm an Order in Cotincil concerning the exercise of jurisdiction in matters arising within the kingdom of Sinni.* 28 & 29 Vict. c. 116. The Foreign Jurisdiction Act Amendment Act, 1865.^ 29 & 30 Vict. c. 87. - The Foreign Jurisdiction Act Amendment Act, 1866.6 The whole Act. Tlie whole Act. Tlio whole Act. ' West African Settlements Act. Power to appoint magistrates in territorv adjacent to Sierra Leone, &c. ^ Power to punish crimes committed to the southward of 25 deg. of S, I.o!. nod outside the jurisdiction of apy civilized government in South Africa. 3 See p. 825. * Extending 6 & 7 Vict. c. 94. to Siam, with power to British consul to hear civil and criminal suit with au appeal to Siu. m iu South Afrien. er to British consnl to hear civil p. 1013 and n. ' on next page. in any of Her Majesty's fom- 1 nal, original or appellate, *lii« iiy court in any country out ol | jurisdiction. 1890.] 83 & M VrCT. c. 37.— ACTS TIEPEALED. 1041 Third Scheihilt — Euactnieiits repeuliil — com. Si'!iitiun mill t'lmiiler. Title or Short Title. ;« it ;i I Vict. V. 55,. The Slam iiml Strnits Setllo- nu'iits Jiiiisdictioii Act, 1S7(».' Ss ,^ 31) Vict. 0. 85.- 'I'lic i''i)ieignJnrisdictionAct, 1S75.2 .IflA 10 Vict. 0. 4(i. - An Act lor more effectually |)nnisln'iig otU'iiccs against the laws relating to the I slave t ,i<1.'.'' \] & 42 Vict. c. 67.- TheF( '•<'ign .) uristiietion Act, Extent ot Kepeiil. The whoh. Act. The whole Act. .•Sections I'onr and six. The whole Act. I Kxplnining 20 & 21 Vict. o. 75. and giviiijj appeal to S.C. of Strnits Settlements iiiplaee of old S.C. of Singnpore. ■ Validity of acts of mnpistrnte, &c., exercising jurisdiction under (). in C". out of Her Majesty's dominions, removing or deiiorling or ilefaining any persdu from or in !liiit country. See 44 & -15 Vict. c. 6!)., aiih; ]). H-2G. •' India. ' A note of this Act is given ante, p. 82."). Note. — Atithority exercised in Africa (continent and .Madagascar), Ilrunei, Ihina, .lapnn, and Corea, Cjprus, Kgypt, (io!d t'na.st (territories adjacent to), l.stros (territories a.ljacent to), Morocco, Muscat, Persia, Persian coasts and i-lands, Siam, Somali coast of the (rulf '. Temporalities Board, 272. ( 1042 ) APPENDIX C. ATT.-GEN. OF ONTABIO Appellant. ATT.-GEN. OE THE DOMINION. .^ AND THE DISTILLERS' AND BIIEWERS' ASSOCIATION Respondeufs. Constitutional Law — Prohibition — Liquor Traffic — Conjiict of Tmws — Relative Positions of Laws by Parliament of Canadc and Provincial Assemblies — Canada Temperance Act 1880 [R.S.C. 188G, c. lOG. p. HO]]— Ontario Licence Laws, 5,) Vict. c. 56. s. 18, explained by 54 Vict. c. 4G. Held .— j (1.) "That Russell v. The Queen, in so far as it decided that the Canada Temperance Act of 1878, which had been adopted by a district of the province of New Brunswick, wa.s within the competency of tlio Dominion Parliament — as being an Act passed " for the peace, order, and good government of Canada," within the meaning of the goneral and introductory enactments of sec. 91, B.N.A. Act, 1867 — aud eou- stituted the paramount law within such district, is a precedent applicaljli' to the Canada Temperance Act of 1886. (2.) That the Canada Temperance Act of 1886, not having been adopted by any district of the province of Ontario, was not in fon within that province. (3.) That the provincial legislature of Ontario, tlH!rc being no eiiint ments of the Dominion Parliament upon the same subject in Force within the province, had authority under sec. 92 of B.N.A. Act, IHGI, to pass a prohibitory liquor lav.', the scope and objects of wliich werei their nature local ant! niovincial. (4.) That the enactments of sec. 18 of 5.3 Vict. c. 56. and of tlif explanatory Act, 54 Vict. c. 46. were, in these circumsUinues, witliin the competency of the legislature of Ontario. Among the rea.sons assigned for these conclusions, the following pro positions were stated : — It is settled law, that according to the scheme of the B.N.A, Act, tbi enactments of the Parliament of Canada, in .so far as they are withiu i competency, must o\erride provincial legislation. But that Parliamen has no authority conferred upon it to repeal directly any provincia statute, whether it does or does not come within the limits of jurisdiciioi prescribed by sec. 92. B.N.A, ACT, s. 92 (9)— LIQUOR PROHIBITION. 1013 VERS' I -Kespo«rfe«/s. Ontario, there bi-ing uo eiiud- ,n the same sHbject in lour sec 92 of B.N.A. Act, 18b,, nnii objects of whiclnveioinl ;onclusions, the following pro- The repeal of a provincial Act by the Parliament of Canada can only Att.-Gen-. oi lie effected by repugnancy between its provisions and the enactments of O-^'tahio !'■ till' Dominion ; and if the existence of such repugnancy should become ■'^"•-Gen'- oi matter of dispute, the controversy cannot be settled by the action of ™^ omimon either the Dominion or the provincial legislature, but must be sub- mitted to the judicial tribunals of the coimtry. Neither the Parliament of Canada nor the provincial legislatures have authority to repeal stJitutes which they cannot directly enact. Nor can the Piuiianient of Canada pass a prohibitory liquor hiw which does not apply to the whole realm. The exception at the end of sec. 91, B.N.A. Act, 1867, includes all the matters in the 16 sub-sections of sec. 92 : but it does not derogate from tiie legislative powers given to provincial legislatives by tliosc sub-sectious, .save to the extent of enabling the Parliament of Canada to (leal with matters, local or private, in those ca.ses where such legislation is necessarily incidental to the exercise of the powers conferred upon it bv the sub-sections of sec. 91. The introductory enactment of sec. 91 relating to laws for the i)eace, order, and good government of Canada not coming within the classes of subjects assigned exclusively to the legislatures of the i)rovinces, may imbrace matters not included in the sub-sections of sec. 91, upon which the Parliament of Canada has power to legislate, l)ecause they concern the peace, order, and good government of Canada. But in legislating on these matters tlu; Parliament of Canada has no uutliority to «'ncroiicli upon any cla.ss of subjects which is exclusively assigned to the provincial Icjrislatnres by sec. 92 ; therefore, the exercise of legislative [)owei' by tlu' Parliament of Canada in relation to all matters not enumerated in sec. 91 ought to be strictly confined to such matters as are umpiestion- ably of Canadian interest and importance, anil ought not to trench upon prorincial legislation with respect to any of the chisses of subjects enumerated in sec. 92. The Parliament of Canada derives no authority from the introductory euiictment of sec. 91 to deal with any nuitter which is in substance locid or provincial, and which does not truly affect the Dominion as a whole. Sub-sec. 8 sec. 92 onl) gives a provincial legi.slature the right to iTiate a legal body for the management of municipal affairs. Since the date of the confederation a provini'ial legislature cannot (lelefiate any power which it does not possess. Sub-sec. 9 sec. 92 does not give provincial legishitures any right to luaet laws for the abolition of tlie liquor traffic Sub-sec. 10 .sec. 92 has the same office which tiu^ general enactment, with respect to matters concerning the peac*-, order, and good govern- ment of Canada, so far as supplementary of the einnnerated subjects, tiillils in .sec. 91. A power to regulate a trade, under sub-sec. 2 sec. 91 B.N.A. Act, implies the continued existence of that which is to be regulated or jovpined; power 'o pass a prohibitory Act is not given by thai sub wtion. When the adoption of a Dominion Act is left to the option of a pro- vince, or of a provincial district, until that option is exercised, there can W no repugnancy between its provisions and those of a provincial Act with the same objects. The vice of intemperance may prevail in jjarticular localities within » province to such an extent as to constitute its cure by restricting or prohibiting the sale of liquor a matter of a merely local and private Wure, falling />nV/i5/acj'e within sub-sec. 16 of sec. 92. 3u 2 ! i Att.-Gf.n. of Ontahio c. Att.-Oek. ok THE Dominion. 1044 B.N. A. ACT, s. 92 (9).— LIQUOR PROHIBITION. Some matters in their origin local and provincial may attain such dimensions as to affect the body politic of the Dominion, and to justify tlie Ciinadian Parliainont in passing laws for their regulation or aholitioii. But great caution must he observed in distinguishing Ijctween tliat whicli is local and provincial, and that which has ceased to be merelv locul and provincial, and has become matter of national concern. The general scheme of the Canada Temperance Law of 188fi, wliicli is applicable to all the provinces ol Canada, is to give to the electors of every county or city the oiition of adopting or declining to adopt tlip prohibitions of the second part of the Act. If a majority of tlie cloctois of the county or city are against the adoption, the question is not to ho introduced during the next three years. The second part, whoii adopted, makes it unlawful for any person, or his agent, on any prctcuco whatever, to sell any intoxicating liipior. In effect the Act, if ami when adopted, superseded the liquor-piohibiting clauses of the Act nf 1804, passed by the old province of Upper Cannda, now Ontario. The IHth .section ..f the Ontario Act, 5.'} Vict. c. 56., after reciting' previous legislation, and that the Temperance Act of 1801 liml been repealed in innnieipalities where not in force by the Caiwila Temperance Act, and that it was expedient that municipalities should have the powers by them formerly possessed, re-enacts the provision* of the consolidated Municipal Act of 29 & 30 Vict. c. 51. s. 219, sub-s. 9, which were similar to tho.se of the Act of 1864, and wliicli pro- vided, inter alia, that, "The Council of e\ery township, city, towu, nml incorporated village, may pass by-laws for prohibiting the sale liy retail of spirituous, fermented, or other manufactured liquors, in iiiiv tavern, inn or other house or place of public entertainment, ami for I prohibiting altogether the sale thereof in shops and places other lliaii i houses of public entertainment ; provided that the by-law before the final jiassing thereof has been duly approved of by the electors of tlie I municipality." 54 Vict. c. 4(5. explained that 53 Vict. c. oH. wii only intended to apply to retail tran.sactions. Held, as above directly decided — That sec. 18 of the Ontario .\el, 53 Vict. c. 50., is valid, subject to the qualification that its provision*! are or will become inoperative in any district of the province whiclil has already adopted or may subsecpieiitly adopt the second part of tliel Canada Temperance Act of 1880. For the facts and opinions of the judges in the SupieiiK! Court, see ante, p. 102. The appeal was heard before the Judicial Committee, coiu- po.sed of Lord Halsbury, L.C., Lord Herscliell, Lord Watson, Lord Duvey, and Sir 11. Couch ; Lord Morris did not attend after tho second day. Maclellan and Barton,! JJ. (Ontario), being present inj court, the Lord Chancellor senil round Mr. Geo. Pi'arsou Wli«kr to invite their Lordships to sat'j within the Bar; ami tlicy ntteiiiWf every dav. Machiren, Q.C. (of the Caiiadtinj 'IIP OHIBITION. incial may attain sueli lomiuion, ami to jiislify • ro"ulatiou oraliolition. liiiir liotwwn thiit wluch I to 1>P merely lociil aud icern. ice Law of 188(), which to <»ive to the eh-ctors of declining to adopt tho I majority of the clei'tors le (luestion is not to ho Che second part, wlion is agent, on any prcteuw 1 effect the Act, it iiiul ec. 18 of the Ontario .Ut,| lification that its provision* :rict of the province v\w\ dopt tlu' second part of tfel Idav. MaclellananaHavioD. (()ntario\ being piw""»l the Lord Chancdlor *nl| 1 Mr. Geo. Pearson ^Mh*I vite their Lordships to >rti| n the Bar; and they attei..W| in,Q.O.(ottlieC«nadJ B.N.A. ACT, 8. 92 (9).— LIQUOR PROHIBITION. 1045 Bar), and Haldane, Q.C., were for the Att.-Gen. of Ontario, the for- mer also being for the Att.-Gen. of Manitoba. Newcome, Q.C. (of jthe Canadian Bar), and H. W.Loeluiis for the Att.-Gen. of the Dominion. The Hon. Edward Blake, Q.C, ami Nesbitt (both of the Canadian Bar) appeared for the Distillers' and Brewers' Association. Tlie two leaders for the respondents only lieing heard. Solicitors for Ontario, Fresh- tields aud Williams ; for the Do- minion of Canada, Eompas, Bis- ohoff, Dodgson, and Co ; for the Distillers' and Brewers' Association of Ontario, Linklater and Co. Maclaren, Q.C. : There were contrary decisions on the same day in the S. C. on this question [see ante, p. 162-4], and we say the Act is valid, and that the decision of Sir Henry Strong, C.J., Four- nier and Taschercau, JJ., was right, and the decision of Gwynne, Sedgewick, and King, JJ., was wrong. We ask from this Board an affirmative answer to all the ([iiestions [sec ante, p. 163]. The tirst six are general, ami do not refer to any existing legislation. The seventh is the important query. It refers to the 18tli section otthe Ontario Act of 1890 [seeante, p. 1G2], which is an independent piece of legislation, distinct from the rest of that Act. That legis- lation is comprised within the term " Municipal Institutions," sub- see. 8, sec. 92. The B. N. A. Act is hn.sed almost exclusively upon the Quebec Resolutions {see parti- cidarly No. 43, ante, p. 750), and in inter[)retatiug particulai- expressions embodied in the Act. Canadian legislation is useftd in deciding what these particidar ex- pressions mean. Now the term "Municipal Institutions" is used in the B. N. A. Act in the sense in whieh those words were understood in Canadian legislation existing at the date of the B. N. A. Act. And "Municiiial Institutions" involves not only the right to create these corporations, but also to give them siich powers as were understood to have iK'en within the meaning of the phrase " Municipal Institutions," The term was, .so to .speak, l;o: ro-.v- ed from the legislation of Canada, it not being used in the legislation of Nova Scotia or New Brunswick, so that it would be the powers which were enjoyed in Canada : and 1 say these powers were given to the legislation of Nova Scotia and New Brunswick if tiiey saw fit to exercise them. There is no doubt that out of the powers con- ferred on municipal institutions pre\iotis to confederation must be taken, so far as local legislation is concerned, all those subjects assigned to the Dominion in sec. 91. Citizens' Insurance Co. v. Parsons [see ante, p. 262, line 14; in P. C. 26 Nov. 1881, 7 App. Cas. 96; 51 L.J. P. C. 11; 45L. T. 721]; Shivin V. Corp. of Orillia (1874) [36 U C. Q. B. 175 ; ante, p. 213], where Richards, C.J., was of opinion the words " Municipal In- stitutions " were u.sed in a general sense, and included su('h powers €'>8 had hitherto been luiderstood in Canatia to belong to such institutions prior to 1867, namely, pow<'rs with respect to the tratfic in intoxicating liquors. The word " municipality " is not mentioned in sec. 91. [Lord Watson : Practically, the whole power of legislation is divide regulated acconlinfr to general orders throughout tlie whole Dominion.] Yes. [Lord Watson : In that view the question will come to be whether tho Pro- vincial Government have exceeded their powers of regtdatior. in ])ass- ing that Act, whether it is regula- tion at all or is in efPect prohibi- tion. Lord Hersehell: If it is within the .specified subjects nien- tione i I 1048 B.N.A. ACT, s. 92 (9).— LIQUOR PROHIBITIOX. li iufliKlcHl iu sub-see. 16, sec. 92 ? Dealinji; with the liquor traffic, might not both the IJomiuiou aiul the jjro\iuces deal with it ? No doubt the Dominion legislation must override the provincial li'gis- lation, but iu a matter of this kin«l this Board has evidently left open the question whether the liquor traffic coulil be dealt with by the provinces in a manner not inconsistent with Dominion legislation. UusseU's ease [ante, p. 129, full reference above] did not decide that the province might not legislate within the province for a thing which affected only tla? province.] Yes. .S'ce L' Union St. .Facques de Montreal r. IJame Julie Belisle [ante, p. 329; in 1*. C. July 8, 1871, L. K. 6 P. C. .'U ; 31 L. T. HI; 22 W. K, 9;«; and Att.-Geu. of Ontario v. Att.- Gen. of the Dominion, atife,[). ,'{1)2]. This Board has hiiil down the rule that it is necesfiary to look at ihc nature and character of the legisla- tion in order to determine which authority has the jurisdictioti. Now the difference between tills legis- lation and the Canada Temper- ance Act is very marked. The latter had nothing to do with muni- cipal institutions, and it does not cover the wholi^ liquor traihc ground, and, although on the statute book, it does not practically exist or possess the force vi law until the district has adopteil it. No doubt if the Canada Temper- ance Act were put in force by Act and Proclamation, in such a case this legislation would be inopera- tive. This is a mere local matter simply n.'gulating a matter of u local and private nature in the province, which the provincj may legislate upon umler sec. 9i until that is overridden by Dominion legislation which comes actively into force. And this is very much like the legislation con- sidered in the two cases cited above, namely that it was gootl legislation on its own ground, so lo.ig us there was no Dominion legislation of a genend nature over- riding it. That is all I would claim for this law in the present wiSf. Then, as I have said, the luitiire of the Act in UusseU's case — the Canada Temperance Act — was entirely different. [Lord Hcr- schell : In Russell's case it was belli not to be excluded fioni tlic Dominion jurisdiction as a local matter, becau.se the Dduiiuioii Parliament might deal tlirouj,'lii)iit the whole of Canada with any sub- jeet that was not si)eciHcaUy ile- scribed in the heads of 92, wliercwr lliey thought it was for the <;()(mI of th(( country there should l>f siifh legislation, anil then each province could not .say, " You cannot do that because it applies to us, and is therefore a local matter." 'i'liat i.s all that Rus-sell's ca.se decided.] That is the effect of the decision. [Lord Herschell ; Russell's case was an atteuqit to i)revent the Dominion legislature dealing with a matter not within any of the headings in sec. 92, because it wa.s a local matter. But their Loiilships said it was not a local matter. They stiid, " Their Lordships eau- not concur in this view. The de- clared object of Parliament iu passing the Act is that there should be uniform legislation in all the provinces respecting the tratiic in intoxicating liquor.s, with a view to promote temperance in the Do- minion. Parliament does not treat the promotion of teuiiierauee as desirable in one province uiuie than in another, but as desiralile everywhere throughout the Do- minion. The Act, as soon as it was passed, became a law for the whoU^ Dominion, and the euaet- uients of the first part, relating to the machinery for bringing the second part into force, took eileet and might be put iu motion atonee and everywhere within ii. h i^ true that'the prohibitory and ptual parts of the Act are only to eoiiie into force in any county or city upon the adoption of a petitiou lu IIBITION. 1 general nature over- I would claim for the present case, iiive said, the natnie I Kussell's ease — the iiperanee Aet — was erent. [Lord Hcr- lussell's ease it was )() excluded from tliu irisdiction as a lowii vuse the Douiiuiou night deal ihroiigliuut Canada with any sub- s not si)eeilieally de- i heads of 92, whcrcvi'r it was for the j^ooil of there should 1"' such ml then each ijroviiice ay, " You eaiiuot do it applies to us, and is oeal matter." 'J'hat is issell's case deeidwl.] effect of the decision. schell : Russell's case enipt to prevent the egislature dealing with ot within any of the sec. 92, hecause it was er. But their Lordsiiips i not a local niatter. 'Their Lordships cau- in this view. The de- ■ct of Parliament iu Act is that there should legislation iu all the especting the trallic in ; liipiors, with a view to ■mperanee iu tlic Do- nrliauient does not treat ion of teniiierauce as II one province mure other, hut as (h.'siralile throughout the Uo- he Act, as soon as it became a law for the iiinion, and the eiiact- iie tirst i)art, relating to uery for bringing the ■t into force, took ciled l)e put in motion at oiiee ,vhere within it. It '* le prohibitorv and peual le Act are only to cowe in any county or city idoptiou of a petition to B.N.A. ACT, ». 92 (9).— LIQUOR PROHIBITION. 1049 that effect by a majority of electors, but this concUtional application of tliese parts of the Act does not con- vert the Act itself into legislation in relation to a merely local matter. Tiie objects and scope of the legis- lation are still general, viz., to promote tem[)erance by means of a imiform law throughout the Do- minion.] That is the extent of tiiat case. It was explained in Hodge V. The Queen. '* It aj)- penrs to their Lordships tiiat llusseil V. The Queen when pro- [leiiy understood is not an authority in sup[)ort of the ai)pellants' con- tention, and their Lordships do not intend to vary or depart from the reasons expressed for their judg- ment in that case. The principle which that ca.se and the case of the Citizens' Insurance Company illus- trates is, that subjects which in one aspect and for one ptu'pose fall within se(!. 92, nuiy in another aspect and for another [mrpose fall within see. 91." Now I claim the Iienelit of that. They are dis- tussiug Kussell v. The Queen aud tlii'y say that the subject- matter of Rus,sell v. The Queen is oue which in one aspect might fall under Dounnion authority, aud in the otiier aspect may fall umUir provincial authority. So that llussell I'. The Queen as explained ijy Hodge v. The Queen goes to support our contention that there way be on the same subject valid Dominioii legislation and valid [iruviucial legislation. [Lord Her- sehell: Suppose the I3onnnion Legislature had not passed any legislation, wouhl it be within the power of the provinces to pass legislation on such things as poi- sons?] The provinces are in the siiuie i)ositiou as before the Union, and until the Dominion legislates the provinces can. Att.-Gen. of Outurio I'. Att.-Gen. of the Do- uiiuiou [ante, p. 302; in P. C. Feh. 24, [189-1] A. C. 189; 03 L. J. P. C. 59]. [Lord Herschell : The provision that poisons shall not be sold except uuuer certain restrictions is a regulation with re- gard to that particular trade, and it is hardly conceivable that that should be intended to be taken away from the provinces and that there siiould be nothing at all done except by an Act dealing with the wiiole Dominion. Many other in- stances couUl be put. The ques- tion is, where is the line of demar- cation between these matters of local and general regulation to be drawn ?] We claim this is a valid regulation; a regulation so well known that there is no conflict with the Dominion legi.slation. [Lord Watson : Sir Montague Smith said, in Par.sons' case [ante, pp. 258, 2G3, full reference above], that there may be three kinds of regulation. It may belong exclu- sively to the provinces. It nmy lie that the Dominion can exclude the provinces from exercising some statutory power, and it may also be that the Douniuon have the power to override entirely the provincial legislation. [Lord Herschell : What this Board said in Russell v. The Queen [ante, pp. 129, 133, full citation above] was that, although it may be a local matter exclusively within the province's jurisdiction, when legislating for its own pro- vince, and the local legislation is confined to that, the legislation be- comes a ilifferent matter, and not merely a local matter — aud, there- fore, not excluded from the Do- uniuon Parliament when it is dealt with as a matter essentiidly with regard to the i)eace, order, and gooil government of the Dominion, aud therefore to be treated through- out the Dominion alike. For in- stance, a local Act with reference to carrying firearms might l)e pure- ly local, and that would Ihj exclu- sively for the local legislature. On the other hand, you coidd not ex- clude, nor coukl it be intended to exclude, the right of the Dominion Parliament, if it thought fit and necessary to t not include the whole of tf regulation of the liquor traffic. The Gov.-Geu.'of the Dominion v. The Four Provinces [ante, p. 144] and Hodge v. The Queen [ante, pp. 135, 130], which make it clear that certain things — at all events, in connection with the liquor traffic- are reserved to the provincial Par- liaments ; for instance, Sunday clos- ing, regulation of the time of open- ing ; and stoppage of sale altogether on election days. In Att.Gen. of Ontario v. Att.-Qen. of the Do- minion [ante, p. 302] it was found that there were a ntuul)er of provi- sions passed by the province which were ai)]uopriate to a general Bankruptcy Statute ; and it was said on behalf of the Dominion that these provisions ought not to be pa.ssed by one province, but this Board said ; " It is true these arc appropriate provisions for a general Bankruptcy Act, but they are also appropriate provisions with regard to civil rights, and, in the absence of special Dominion legislation, they are proper to be included in dealing with property and civil rights." So it may be here that there are provisions which on general application woidd be applicable to a general prohibition law. [Lord Watson mentioned Tennant v. The Union Bank of Caiuula (ante, p. 295) as a case in which the Do- minion had also legislated, and the validity of the Dominion Act was sustained.] In that state of the law it is well to see exactly what has been decided with regard to the liquor trade, and we find that not only has the " regulation " of it l)een decided to be in some as- pects and for some purposes within the provincial competence, but even qualified prohibition has been de- cided to be intra vires of the pro- vince. [Lord Herschell : Say that it was thought that for the good of Canada Ontario ought to be sober, that would be legislation which coula be a good deal questioned. But it is putting it too narrowly to sjiy the Dominion law m»ist extend to every province.] [See discus- sion, ante, p. 148, on Acts of I t 1 1 f 1 ' I i I ! ■; i' I i ! I ( \ ■ I If 1052 B.N.A. ACT, 8. 92 (9).— LIQUOR PROHIBITION. 1883—1.] Strong, J., in this ca.se, 8ui(l : To neither of the h'<;islntnros is the subject of [)rohil)itoi\v li(|uor \a\vn in terni.s as.Higiied. The ques- tion is, have they eoneunent power? [See ante, p. 165.] Neweonie, Q.C, for the Do- minion : Tiie subject of the refer- ence mu.st he regiiriU'd as " piohi- bition," but this Board in Russell V. The Queen exchuU'd the subject of i)rohibition, ns dealt with by the Canada Ten)i)erance Act, from provincial competency. [Lord Herschell : This Board ex[)ressed no opinion as to its coming within the two. It founded its judgment entirely upon the earlier part of the section — its coming within the general power to legislate for all Canada. Now the provision at the end of sec. 91 is to the effect that the power of the provincial legis- lature to legislate on matters of a merely local chai'acter shall be ex- cluded and shall not be takeir to extend, where the limits of the legislation be local only, to matters coming within the enumerated pro- visions of sec. 91. This Board did not decide that the prohibition of licpior came within any of those enumerated sections. It decided it upon the giound that it wune with- in the first provision. Now if you read the words at the end of sec. 91, they imply that so far as their limit is merely local and the effects are merely local, the provincial legislature may legislate on matters with which nevei'thele.«s the Do- minion Parliament may have power to legislate generally as being a matter for the peace or good government of Canada. The veiy express words at the end of sec. 91 appear to me to imply that there may be cases in which, you may legislate locally by provincial legis- lative authority, and nevertheless the Parliament of Canada may legis- late generally. Of course if they had decided it on the ground that it came within the regulation of trade and commerce, one of the enumerated thiugs, theu no doubt that would have been u stroii" lioint, but I am only s|)ciikiiij; df tlie scope of Russell /•. The Qiurii. That case dot's not seem to jjo fm'. Iherthau that. Tluu is wliv it duw not appeal- to me that tlio },'ioiiiHi upon which the decision in 1{iish.|| V. The Queen is bused cxi'IikIis 1 the provincial pover lidin dwilin" with the matter locally.] The main ; part of sec. 99 of the Ciiiindii Tem- perance Act is generally prdliiliitivi', i and really prohibits tlie snle in those localities into which it is limiif;lit into force, with certain exceptiiuw, i.e., in (piautities of l-;.,^ uniii 10 galls, [reads the y^'v\\un,sveaiile,\ p. 130.] [Lord Her.schell: Take sanitation for example; sii[ii)osiii;,' that the Dominion raiiiiuiRiit liiul, with a view to the lifidlii ol' tlici whole Dominion, passed lertiiiii n-I gidations, and suj)posiiig iu a paiij. eular province a contagidiis discaM' was raging which reiuKifdit iii'ccvj sary for the safety of all tliuse wiili- 1 in the province that iiuicli iiioiul .stringent regulations as to tbr in habititnts of the hou.ses should coniel into force. Why should uot tbtl be considered a merely local niattfi'.'I If it is so, and you limit your legu-f lations to the locality, wiiy is tliatl inconsistent with the legislatidiil which is on the same liiics a.s thatf which is in force in the J)oiiiiimiii| at large.] Where Doniiuion Icj; lation has intended to oceiiin i field and cover the whole groiiiiJ with respect to a ceitain su ject, it would be iniiiropei' toj allow the provinces to iatcriVra also in the matter. [Lord Hei'j schell : One cannot help liavii certain doubts whether the Pfiiliiil ment of Caiiale ; supposing )niiiiion I'arhiinient liii(i,| w to th»' heiihli of lilt' linion, passed eertaiii iv- md supposinjf iu a paiti-| inee a contafjious disciiM' which rendere s intended to oeciipy ilia cover the whole gi'Dimil pect to H ceitain sn would be inii)roiH?r iq e provinces to intcriVrd he matter. [Lord IM One cannot help having oubts whether the Failing Canmlii could legislate say, sanitary arrangeiiieiitj luses of a 'particular towT ivince under this gemnJ )r the " peace, order, m ivernment of Canada"- lust mean Canada nt t be a temporary uie«si"t to meet a local exigtuc]! ticular time and iu a parlij ivn in a province. Andr for such the Dominion Parliament onnnot legislate, it is very dillioult tosii|)poa(( that the provincial Par- liament cannot.] [Mr. Neweome read whot was said in Itussell r. The tiueen as to sub-sec. 10, see. 02 ; see ante, p. 13 1, line 7 {/>), anil also read the quotations from .illen, C.J.] Whatever is con- ferred by the words in sub-sec. IG, is a general grant which woulil enable the proviuce.s to deal with matters which are merely local and 'irivate. The word " merely " ac- centuating the limited character of the legislation. In the ca.se of LTniou St. Jacques de Montreal f. Belisle, a question was raisetl a.s to legislation with regard to merely local and private matters [reads line 22 {a), ante, p. 330]. 'J'hat i.s an illustration of what would be a private or local matter. As to municipal institutions the exehisive power of the provincial lepslatures was not intended to go further than to constitute or estab- lish them ; and any authority which they may validly confer upon ninnicipal in.stitutions must be de- rived through, or have regard to, the other subjects enumerated in w. 02, which do not include the power to prohibit. [See King, J., m>tc,\). 191, last line(rt).] Then ffe sny tliat the subject of prohibi- tion comes within the scoi)e of the Dominion authority as legi.slating tor the peace, order, and good go- vernment of Canada, having regard to the criminal law [reads Russell i: The Queen, ante, p. 133, line 42 («).] See also Tennant r. The Union Bank [ante, p. 301, line 32 (rt)]. [Lord Watson: Do yon maintain that the terms of sub- sec, 2, .sec. 91, give to the Domi- nion legislative power to prohibit oraholish a particular trade ?] Yes; because it refers to all subjects of trade and commerce. In dealing with a general subject, " Regulation of Trade and Commerce " involves abolition. [Lord Watson : If it had lieen "Trade and Commerce," those words might imply abolition a,s well as regulation, but where the power given is expressly con- fined to " regulation " of the liquor trade, could they al)olish it? [The learned coun.sel referretl to the re- marks of Ritchie, C.J., in Reg. v. .fustiees of Kings, ante, p. 59, line 20 (a), as to " Regulation of Trade and Commerce " ; to the same judge in the City of Fredericton's case, and to Citizens' Insurance Co. v. Par.sons, ante, p. 2G3, line 41 (6).] Now, leaving the subject of Trade and Commerce, we say, there being Dominion legislation, the field is not open to the provinces. Since the Union, part of the Dominion revenue is derived from the customs and excise duty on alcoholic liipiors. The Dominion assumed the public debt and ex- penses of the public services, beside undertaking to pay large subsidies to the provinces. If the provinces have the right to pro- Inbit the liipior traffic, the Domi- nion as to customs and exci.se would be affectoy side without any conflict of the one with the other, how can their legis- lative i)owcr have been taken away by the Dominion passing theCanadn 'lempenincc Act ?] The Hon. Kdward Blake, Q.C., for the Distillers' and Brewers' As- sociation : The (picstion is not sp»'culative, as the plebiscite car- ried out uuih'r the Ontario Act of 1893 lias resulted in a large ma- jority in favour of immediate pro- hibition. A similar result has l)een arrived at in Manitoba. One might suggest an Act in terms of the questions, and then the same difficulty would arise. [Lord Watson : The first (juestion in- volves a substantial issue, is abso- lute prohibition within the com- petence of the provinces ? The next raises the question, does the legislation of the Canadian Par- liament oust the jurisdiction of the provincial legislature in those parts of a province wh«'re the Canada Temperance Act has not been adopted and is not in force ? 'I'he next two qtiestions are quite clear. The fifth is, if it has not power to enact a total prohibition, lias the provincial legislature jurisdic- tion to regulate retail sales so as to prohibit liquor being sold by re- tail in quantities less than those specified in the statutes in force at the time of confederation? The sixth question, I understand to be, if they are possessed of a limited jurisdiction such as is indicated in question five, have the provinces power, within those districts where the Canada Temperance Act is not iu force, to enact a law which will practically imfwse the provi- sions of the Canada Tfin|K'rnm.e Act uiwn that part of the provinci-, observing the limits of the Ciuiada Temperance Act, but merely upplv- iiig that Act without its heliig adopted iu tlie manner spocjliiil in the Act itself i* Then comes ilio seventh and most importniit qiips- ti(m relating to the iHtii section, which gives rise to this coiitrovpisv. One |)oint which must iieconsMciiMl is, whether the legislntioii on these matters — the ilrliik trnllic prohibitions — enacted by tlie Do minion of Canada are in milltv and substance enactments for llic purpose of "Reguliitiiig Trade and (.'ommerce," or are they cniict- ments passed for the " welfare of the inhabitants " and witii a view- to stqipressing drimken iiatilts, imder the first general part of see. 91 which precedes the speeial sub-sections. The ilistinctlnii is impoiiant, whether it is lf<;islatloii uiuler the general part nf sec. 91, or under sub-sec. 2, sec. 91, as viewed in the light of theeoiiciiuiiii),' exception of sec. 91]. The legisla- ture may treat a trade by prohibition, because on social or moral {jroiimls it is bad for public mniais, onler, or .safety, which are all incntioneil in Russell v. Tlie Queen [ante, p. 133, line 42 («), full reference above], or, secondly, itecaiise of some fiscal, economic, or political — including treaty — reasons. We say that, Imth under the general and under the enuniemted powers of the Dominion, the jurisdiction to prohibit on ii"v of these grounds rests sf ly w lie Diminiou. 'I md mode of treating a ,my be by opl'M-ing it -as a intended to ' t— on any of ose grounds whi> li have Iwn nii'iitionei' Then there is a dis- triliutioi if power. There may be, to quote the language used in Citizens' Insurance Co. v. l'«i'- sons [ante, p. 203, line 50 (b)]. " minute rules for regulating pr ticular trades " ; or, as said in Hodge V. The Queen [ante, p. Hi, miBITION. B.N.A. ACT, s. 02 (9).— LIQUOR PROHIBITION. 1066 lly impose the provi- C'umula Tt'iiiiK.TniRo t. jmrt of Ww provinci', 1 liniitH of the t'miadn Act, hut niprely upplv. •t witlioiit its ln'iiig tilt' numiior six'tMlicd ii'lf ? Tlit'ii comes tlio most important quos- ; to the IHth seel ion, iseto this coiitrovpisv. nchiimst be I'oiisidurt'd tlio legislnlion on rs — tlin (Iriiiii tiaflif — onnc'ted liy tiie Do- 'niiiula arc in it'iiiity [•o enactments for lln' " Regulating Trado •ce," or are they oniict- il for the " welfare of nts " and with a vii'w ing tlrunkcu habits, first general part of ■h precedes the spwiid The distinction is iTJiother it is legislation ;eneral part of sec. 91, ub-sec. 2, sec, 91, a,< 3 light of the conciiidini; sec, 91]. 'riielegisla- it n trade by prohibition, lociul or moral groMn'iminion. 1 mode of treating a )C by or-ieriug it - as a icd to f ^t— on any of nds whiJi have ten Then there is a dis- power. There may be, lie language used in nsurance Co. c. Pa'- , p. 2G3, line 50 {b)]. des for regulating par des"; or, as said in he Queen [ante, p. Ml, line 24 (A)],h police power varying according to the condition of the locality ; and although it is very ilifficult in each case to (h-aw the line (wiien it comes to be drawn) under Parsons' case [ante, p. 258], Hodgt^'s (!asc [untc, p. I'Ao], and Ihe Litpior License Acts, IKH.S-l [antr, p. 144], I sidnnit that the power has Ix'cn determined to be exclusively provincial. In the case in which this Board shall adjudicate ibat il is a minute regulation affect- ing a paHiculur trade, there Par- sons' case says that it is local. In die case in which it .shall be decided that it is within '* the police power," ihen in Hodge's cn.se your Lord- >liips have held that it is exclusively liMol. Then, chawing that line which is to be '9)— LIQUOR PROHIBITION. upon tlie province. As I under- stand the words conci rrent legi.slii- tion — the legishition to be effective must he by one orthe other. I do not think the}' are joined together, but the result of i-eceut judgin;ats ^/ this IJonrd linve been to establish that there are some x wersof legis- lation which may be exercised by the provincial legislatures, and so long as not interfered with by the Dominion Parliament their exer- cise will be effectual. This Hoard has held that these enactments may be overridden by an Act of the Dominion Parliament, competently legislating within its own field ; but while that Parliament cotdd override by an enactment that comes into collision with the pro- vincial enactment, the matter might not be so exclusively within the jurisdiction of the Dominion Pailia- ment as to enable that Parliiiment to repeal tlie provincial hiw. It might overpower it, but not rep^'al it. Again, the subjects which give rise to very difficult questions are those which are assigned to the pro- vinces under sub-S((s. 13 and 1(5. [Lord Herscliell : " Police regu- lation " is a very vague te.ni. It wa« used in Hodge's case, but it only means something conducive to the good order of the Domi- nion.] And when you come to draw the line, vou would find it very diff5c 'Mo find what is "Police "': ann vaat is not "Police" within the sense in which that term is used in Hodge's case ; and there- fore rind it difficult to determine what is merely local : and what is beyond it. [Lord Davey : In Webster's Dictionary •' Police " is said to be a French word, and to mepn regulation and government of a city or county or union as re- gards the inhabitants, That does not carry one very far. Lord Herschell. Supposing it was not necessary as to the peace, oidei-, and good government of Canada, but it was necessary for lo« al piu-- poses that you should prohibit the sale or the carrying of firearms, or anything you please with regard to them. It is difficult to sco why the provincial Parliament slionlll not deal with it, if it was n imrclv local matter ; but it is dilliciilt, oii the other haml, to see wliv, bccmso they have dealt with it sis ;i iiicrciv local matter, when it wmn ji lociil mutter, the Dominion (Jovciiiinciit, when some provision with ri'tcnMu,' to firearms became necessary for tlie pe.'U'e, order, and good govcriinii'iit of the whole Dominion, slioiild h,. thereby precluded from dcalincr with it, or shoidd l)e unalilc to iIkiI with it in that way. I cnn con- ceive both dealing wi'.l' it in tliat way. A matter may be a inrrdv local question at one time, Imt tlii> state of the Dominion may maki' it sonu'thing much more than a local matter at another time.] It niav be suggested that there are tinliii- lent spii'its in particular ijortions of the Dominion, that there is a ivcii- les^ habir of carrying firearms, tlwt there have Ik'cu criminal oil'cncos committed by the wanton nsp of them, all these things point to tlif conclusion that it is a matter for Canadian acfion. [Limi Her- schell : 1 do not see, ii' tliat i< the cn.se, why the }U'o\isi<)ns iliv cussed in Hodge v. 'i'lic Qnciii were not Canadian.] The dilliciiltv IS in adopting the proposition, tliiit if your transaction is mcich' KkhI in its natui'e, and if llicii' is tin' exclusive power, if the fact tliiit it is local in Province A gives that I j)rovince the exclusive power of dealing with it, is changed In tin' fact that it turns out it exists al> [ necessary to have some genpralj legislation for the whole of t'nnaJil for its i)eace, order, iind g««i| government.] May it not l»| mrpj I niBITION. B.N.A. ACT, s, 92 (9) —LIQUOR PROHIBITION. 1057 plonsp with repffird to (litflciilt to see why 111 Ptu'lianipnt shduM I it, if it was a merely ; but it is (litl'iciilt, oil ml, to soo wliy, licc.iiiso 'alt with it lis ii iiieivly , wlu'ii it WHS n loinl )oiuiniou lioveriiiueiit, )rovisioii with reference ecnuie necessary for tln' iintl gooil }:o\eriiiiiem (' Domiiiio'N shniilil W pcluded from dealiiij; ihovihl he nnahle to deiil that way. I eim emi- (U'aling'wi'.h it in tliiit latter may he a merely on at one time, Imt llie Dominion may iiuike it much more than a loonl imother time.] It uiiiy id that there are tnrlMi. in partieiilariiortionsef '.on, that there is a reck- )f earryinp; firearms, tliiit :? iK'cn eriminal offenecs hv the wanton nse of these thinjrs point totlic tliat it is a imitter for action. [I'onl Hei- do not see, if that i< whv the jn-ovisions di-- Hodf^e V. The Queni :'nnadian.] The diflkuliy ting the iiroposition, that ■iinsuetion is merely 1(ki\! tnre, and if there is tl«> nower, if the faet tlint it n Province A gives that I the exclusive power of | vith :t, is chansicd hy lb- it turns out it exists nis- , Province B, and tlinl l')' I rrenee it ceases to lie Im-al mes general. [Lord IhT- 'his Board said sonietk'! V that in Russell's m.\ licat.il there liiat lhnii?l| might he merely W n relation to one particular ■ nevertheless it might M V to have sonu- gcnml ,n for the whole of CiinaJi i)eaee, order, and p^\ lent.] May it "ot ^^l Slid to be general where tliere is Slid to he u .sort of danger of contagion or disturliance spreading over tiie whole Dominion ? But if the matter l)e merely local iind private, and the condition wliicii recpiires legi.shition exists in one [irovince only, it is conteniU'd that the Dominion would not have [lowor to legislate. [Lord Her- sfhcll : Sanitary arrangements primii facie would ho a nuitter merely local, for which the pro- viiiees would ha\e power to legis- late, and yet there might he a condition of things which rendered mcdy to the whol(!. Lord Hei'schell : .\s to the prohihition of carrying liivarms. I d.) not think it has lieen iiggesteil that it could not Im^ ileidt with hy a general law if liiuiij^ht iiect'ssary foi' the safet\- of ilip Dominion ; Itut licy, that they ought not to legis- liite, that does not differentiate the nises. 'I'hoy may prefer that (.'aimda shovdd be friHj ratlier than S 2340, solier. [Lord Her.schell : Does not sec. 91 iioint to this, that if it can lie brought within any of the enumerated clauses, and it is legis- lation confined to the locality — it is priiiin facie within the provincial powers ? At the end of the clause a distinction is drawn between those enumemted clauses and the ;.>eneral words at the beginning.] Whei'(! there is a distinct loc^il aspect, in which the local legisla- ture deals with the subject, I agree the local legislature has the juris- diction. The difiiculty I feel is that where the asiiect is the same there is a double jurisdiction. [Lord Hersdudl : ^ " , cannot in this ca.se lay down ai. . [iroposition in such terms as to cover all cases and settle the confines of .sees. 91 and 92.] The express object of the last paragraph of sec. 91 is to deal with the effect of enumeration, and not to deal impliedly or indi- rectly with the effect of that which is outside of enumeration, and within the general powers. The very jiurpo.se for which enumera- tion took phice was to avoid doubt and conflict on certain subjects as to whether they fell within the one or the other, and that purpose would not he fully accomi)li.shed without an express provision taking the ont! set of specified iirovisions out of the operation of the otiier. [Lord liL.'rschell : Take the case of a postal service strictly confined within the limits of the province from house to house. That would he a mei(dy local matter if anythiug was; but, being a postal .service, it is not to he rleeiued to W' merely confined to that. The object of the paragraph at the end of .sec. 91 was to exclude from sub-see. 10 of sec. 92 certain things that other- wise would distinctly have been within it.] My argiKiicnt d(K>s not go so far that Canada could, by legislating for all or more than one province, th'al with strictly provin- cial topics, lH>caii.s<< that would he absolutely deslruciive of the pro- vincial powers. The principle is 3x i! «l i; il 1 1058 B.N.A. ACT, s. 92 (9).— LIQUOK PROHIBITIOX. tlint tliPiv nio two nspocts iind two piirpnscs of lof^islatioii. Ilodffd v. Tht' Qiioeii [aiitc, p. Ill, lino .321. For oxiMiiplo, tako tho ciises oi lic'onsos fo'" revenue. The express power of sub-sec. 9 is for raisinj^ a reveiiiK!, and it has Ijeeu de- cided that limits the power j^rauted in respect of licenses in that aspect — that umler sub-.sec. 9 it must be for the piu-pose of raisiii<>f a revenue. But that leaves that same subject-matter to be dealt witli under police power: and leaves it to be dealt with uialer a still different as|K'ct by the Donn- nion, either inider the {general or under the eiunnerated powers. How widely to be dealt with by the Dominion is one of the points to be disposed of. Ihit the same subject cannot bo dealt with by both under tlie same aspect. Under sec. 95 a concurrent jjower is "liven, but nowhere else in the Act. [Lord llerscheli: At present tlie Dominion Parliament has power to make laws for the piupose of tlie " order and nitiMl powers that it shall iireiloiiiiiiate; but there is no provision tliiit if it is within the general |mi\vci> it shall predominate, and tliiivfoiv you find, and must grai)|)lc witli the fact that there is then a coiitliii. If you grant the premiso, ilmt ilic subject is within llie jurisdiction i.j' the Dominion, the Doniiiiioii nnn is not so shortened but that it is entitled to look at the eonditieii and circumstances of the people throughout the whole or in anv part of the country, and if vaiyinji circumstances exist with icIVivncc to the evil requiring var^•ing legis- lation in different parts, it is en- titled and bound to apply tlie pro|Mi' legislation for the reni('r the ro{»iiliition of the traffic oiti'iiile i'l connection with liccnseil houses. Tiie generally e.xchisive ihanuter of th< jjrovincial i)()wer must l)e rccogi'ized and npiield by ffpudiating tlie doctrine of double jiirisvides tliat until the Parliament of Canaila alter if, the provincial law shall Muiiin. 'I'hcn there always was a law; hut by whom could that law lie elianp'd : by whom could it be niKuliMl: l)y whom couhl it be Mi|i|)leiniiited ? By the Parliament 'if (.'anada, and it alone. This iliwv of construction is not iilfirted by such decisions as C-ush- iiig r Diipuy [ante, p. SO], and ilie later insolvency cases. [Lord iMvey nicnticmod L'Union St, ■liie(|iies de Montreal v. Belish; as l«iug a case where it was held tho province could pass a law winding up a particular com|)any.] Yes, then Hussell r. I'lu! (iueen [ante, p. l'2[)\ gives us the concrete case and the principle. There the validity of the Canada Tem{)erauce Act was established. It was held that the subject did not fall with- in any subjects assigned cxclu- si\t'ly to the jtrovincial legislatures. [See (lute, \t. 131, line 5 from bot- tom (/;), and pp. 132, 133.] [Lorrl Ilersclicll: Suppose that in a [)articu- lar province there was a provision that contagioiis-diseas«id am'mals should not go to a ]«irticular market, woidd that be extra-provincial be- yond the power of the [)rovince?] There is a general law on the sub- ject ; but, if there were not, there might be many of these to[)ics dealt with within the |)ro|)er limits of locid regulation. 'I'hc lin(> in each case is drawn with reference to the principh' laid down in Hodge v. The (^ueen, and, when once drawn, you lind a purpo.»e and as|K!ct local which gives jiu'isdiction exclusively to the pro\ince, and beyond that j)urpose an there was more urgent need ?] What this Board has decided (by Russell r. The Queen) is, that the law which is piussed is II general law, notwith- standing its adoptive nature; that the opportjuiity of uniformity it gives by making a provision under which in various local conununities all through Canada it might be i)ut in force is a suificient geneiality and uniformity if generality and imiformity are required in order to the exercise of Canadian legisla- tive power. Tiie Canadian 'I'em- l)erance Act is general and uni- form, although it merely provides a machineiy by which different locidities withiri the Dominion nifiy at tJieir option and election put the provisions into force. It is a(h'quately general and uniform, though c.r facie it con- templates that it will not be luii- versally a[)|»lied. Again, it is adequately general and uniform although it provides that unless the test was successfully applied of a local demand supported by a nuijority at an election there ought not to be this prohibition which on the.se conditions, and on these alone, it was intended .should !)<> applied. Russell's ca.se dix's not decide that the power of I'arliament is limited. That point is expressly reserved : but what is decided i.>; that the jwwer of ''arliament to bo com|)etenlly ordain«'d nnist l)e cap- nble of operation generally all over the Dominion : yet that this law, whose practical and contenipl.tto,! operation was not general nor iinj. form in api)lication and in opoiii. tion, was a competent exci-cis.. „{ that power. [Lord Hersehell : Docs the fact that the Parliani..|it (,f Canada has .said that whcipvcr people want to prohibit bva ccitHin majority there shall Ikj proliiliitidn; render, in every f)lace where flnn- do not adopt the Act, the Idciil legislature powerless to make regulations of the liquor tiallii' short of i)/ohil)ition ? Lord Wat- son : The question then uriscs. Is supplemental legislation a prac- tical repeal of the option given In the general law?] The Act is a decision of the Parliament of Canada to take up a question ami legislate ni)on it. [ Lord Ilerschrll : Has not Hodge r. The Qiupm decided they have not done that, becaus(> Hodge r. The Queen 1ms siiid that in districts where tin- .Vet has never Ikm'u adopted, and wliciv there is, therefore, not i>r()lnl)ition. it is still competent for the provin- cial legislature to enact rc;,'Mlati(.ns as to lime and idaccs within which drink may be supjilied ? That in fact, where the Act has not Wvn adopted, has it not left open tu the local legislature cveivliiin;: short of prohibition?] Tlnit Mia\ 1m> so within certain limits. But I contend that the i'arlianiont of Canada has tlone this ;is ctl'eetuall\ as if it had said : " Tiieiv sliail b(' no other interference anf revenue to llu^ counti'v. It is iei.'ulale(l in the liscal sense; and a ^t'l" siibslanlial |)Mrtion ol the imlilic reveiuic in the provinces Ipel'oi'c confederated, and in the Douiinion since, was and is derivcil froir this source. C'anada was j:i'en a power to raise money by luy mode or system of taxation, Aiiii she mnlertook to pay the interest on the public debt of the provinces, and also to pay yeiu'ly ii sulisidy to the provinces, and this she had to do out of these means nf raising revenue. Can it be Niid then to be a merely local or lirivate matter within the province to prohibit the .sjile or the mannfac- turi' (M' the importation of a sub- jw't which is one of the principal purees of re\ enue ? That view, "IKiit Ironranything else, «'xcludes tills particular subject from the genei'al phrase a matter of " merely local or private " importance. Sup- pose this was done in each province anil to other sources of revenue, 'i'lie i)ower of the Parliament of Canada to procure its revenue might be fatnlly crippled. The circumstances of the country are such that no man can foresee the time at which revenue can bo raised otherwise than indirectly, that is, by duties of customs and excise. It is of the most .serious inq)ort to the whole of the fiscal system of Canada. If there be a defeasible power in the j)rovincial legislature of dealing with the matter locally, that power has Ijcen (h'feated, because the Dominion has acted. It has decided that the proper way is to provide for pro- hibition, and for a repeal of it, and for a re-enactment of it, at intervals. Tho.se are the methods the legi.sla- ture considered competent to deid with the general evil. It has not deemed it to l»e the In'st way that greater areas like a whole province should by one act of the legislatiue, or by a plebiscite, Im^ subjected to total [trohibition. It has obviously decich'd the political (jue.stion of which it was sole and sovereign ju residts by such an Act would work for bad instead of good. Competent au- thorities must be taken to have deci(le), for the way in which the words " Tratle and Connncrce " are used in contemporaneous Acts.] [Lord Her.schcll : One cannot doubt that great power of regulation (jf trade must Ix- included in " Trade and Commerce," but it is another (jnes- tion as to whether '.he local legisla- ture camiof impose any restriction upon the dealing in any particular goodswithout infringing tliat power of the Dominion Parliament. Lord Wat.son : Remend)er, in framing that section, they iiad not smaller and j.'urely local things in view. Take, for instance, u dairy in a province, and milk pi'odnci'd at that dairy ; tudess it is iiitenpeetor to look after that ndlk before it is consumed by the inhabitants. Lord Halsbiny : Suppose the wii.shing of butter in a particular .stream nuide it unlit for human food, surely there is a provincial right to prohibit its .sale.] The Dominion Government is not to be deprived of its authorilv t„ legislate in larger matters liirmis,. it is extremely hard to dijiw il,,, line betw<'en local and lluisc liirT,.,. matters. Kvery eniiefnieut wimli says you shall not carry on mh,,. trade in a |)aitieidar way .iiid luidir paiticular conditions iind loiii,.. tions regulates the trade, j jlin,!, from Citizens' Insiuanee ("n. ,-. I'ar.-^ons, the 2nd par., «///<, p, :;(;i_ as to " Pegulation of Trade,"' .ivc.j Now what are the pdints iju's,. words, it is suggested, avouIiI in. elude? They would iiu-iiide |i(ili. tical ari'angements with iv^^mhI t(, trade retpiiring the sanction of Par- liament, but then that is exprcs>!v [irovided for by .s'c. 1;J2, wlii,); gives to the Parliament aiiil (in- vernment of Canada all tln' peucrs neces.saiy for perfonniug Ihr (iMi- giitions of Canada, or any [irevincc or part towards foreign eonnliiis. No political arrangement cm lie nuide, except through the iiieiliiini of the supreme authority. 'I'lir local authority may be, mid has been of late years, recogni.-ed in the making of these arrangeiiiciits, but for all that it is alwa\>a ticaiv nuide by the supreme goveriiiiieiii. which aloiui is a political .inaii;;('- ment. [Lord Ilerselull : Tlic Board .say distinctly they do ikiI include every particular (Iciilinj,' with trade.] All that Cili/ciis' In- surance Co. v. Parsons ileciilcd, was that sul) .see. 2 .sec. 01 did not comprehend a particular trnde in n particuliir jjrovince. Then thai case and Hodge's case dd (lecidc, first, that some things aic t(Ki minute, and secondly, that .-ipnie things are too local to coiac witiiin the |)hrase " regulation of trade," The crucial \)i\v{ of llie jiid^nicnt in Hodge v. The (Jueen is liiat the power *)f the proxiiicc- \f to make restrictions in tlie iiattirc id' |)()lice and nnuiicipal regniatidii- id' a meridy local character I'ei' the good government of taverns licensed for the sale of liipair and so l'(trt!i. [See ante, p. 141, 2nil pnr. {b)]. Tliere it was not a general Ad mwi' IBITION. f its authorilv lo K'-r iimttcrs Ixrnns,. ■ Imnl to (liiiw tlic cal and tliosc \■,\^■^^^',• y ciiMctinciit wliich not cany on ym inlar wavinid uiidcr ililioiis ami ii>iric- IIk' tnidr. 1 l!,,i,u liisinancf Co. ,• nd par., (ui/t,\,.-H\\, lion of 'IVadr,"' S.t:] till' |)(iiiits llicsc ii;cst('d, Woiilil in. wouly sf<'. 1 ;{•_», wliicii Parliament and (id- 'anada all llic powiis pfiroi-niinj; till' (ilili- lada, or any inoviiifc ds t'oifijrn couMliics. arran'^cnu'nt Ciin liv tliron;r|i tlio lucdiiiiM inc authority. Tiu' y may be, and has years, reco^^nisid in tlu'se arranfjeincMis, U it is al\vay>a liciiiy supreme f;oveiiMniiit. is a political arraii;;!'- •d ller.s(dull: The listinclly they do not y jiarticular dcidiii;^ All that Citiziiis' Jii- V. I'arsons dccidrd, see. 2 see. IH did iiiit I particular Iraili' in :i I'ovince. Then thiit dfje's case do decide, ume things are tee seeondiv, that t-umi' J local to come within I'ejrulation ol' Inidc" [)arl ol' tin- jud<;iiiint . T'lic Queen is that (if the pro\iiici'» is I'ietions in the natiiiv municipal re;.nil;iti(iii- ot'al character- I'ei' tin' ic'iitol' taverns lie('ii.>i((l i" liipior and so I'orlli. >. 141, 2nd i)iir. (A)J ^ not a ficnend Ait M.N.A.ACT, s !)2 (9).— LIQUOH I'UOHIHITTON. 10()8 iliulinj; with llie wholo province, liiit an Act rcnutting to the nnuii- tiimlity certain powers to he exer- cised locally, it is an entirely ilijfercnt pi'oposition to say that ihiit involves neccssai'ily or pro- lialdy the view that they have the riidil lofjivc a powerol' prohihition liM'iilh . Is it not clear that where all Act more seriously att'eets those lar"er considerations, ol' iin[ioi-ta- lidM, sale, and taxation, it i^4 u ilirper intert'erenee with trade and innimerce than this local I'fijulationr Tlion it has been adjudj^ed that to |ir(iliihit n[)on .social and moral, or <;ioands of safety, order, and peace, i. within the Dominion Parliament : mid I maintain that that power of ilialin^ for that piu'pose is within llic " |{e};ulalion of Trade and I'nianierci' " just as much as il is within the general powers. 'J'hal. ilicii! is no reason why you should nut ii'^ulale trade and commerce \v!th these ohjects which lU'c hif.;her lliaii tiseal : economic : or political iilijects. Then on tiseal {^rounds ymi may prohibit i»roduetion and Kill may prohibit nianufaclure, as i« shown in the instance of tobacco ill Kni^land, and which exists ttitii ie<,'ard to methylated spirits ill Canada. Then there are so- i.illnl economic ^oods, upon which, under the powers of taxation, some iiiipdiis are pi'etly well taxed to ili'atli, There is a conceivable |)ro- liihiiiiin of a paiticuhir trade on the '.'iiiiind of a irreater ireneral interest ill lo>tering somel hill"; else to which •hi' existence of the jjeiieral trade i- ilijiliidus. Therefore rej^iilatioli II' trade and commerce does and iiiiist include {ii'ohibition : and that ih'.'re is no inference ajjainst the IH'ohihition of a particular trade to lii'dniwn from the use of the word iV'j;ulation. It cannot be altogether iftnoied what the Great Federal t'onstitiitiou of the United States has for a long time discussed with reference to this regulating jtowcr, «eeUileliie, CI., in City of Krede- rii'tdii r. 'I'he tiueen [niitr, at p. 'il, line 27 {/>)]. It wouhl be stiange, indeed, that having the sole legislative power over trade and commerce, the Dominion I'ar- liameiit could not prohibit the im- portation or exportation of aiiv article of trade or commerce; or, having the j)o\ver, could not jiro- hiliit till? sale and tratKc, if they deemed such |irohibition I'oudiicive to the |M'aee, order, and go\-eru- nieiit of Canaihi. There seems no d(Mibt on the point in the I'nited States, see Story on the U. S. Consti., 1 ed., s. 1071. After Ifodge r. T'he Q'"'*'" [•«'« iiij'rii] came the Lirpior Licenses Acts, IHH.'}-!, ease (argmncid (liid,, p. Ill), and though we 1 ;ive no judgment to enlighten us as to the grounds of decision, yet it seems plain from the proceedings in that case that the Dominion could not generali.se in a matter which was purely local — purely local, as had been decided by Ilodge r. T'he Queen. That their attempting to deal with that sul)jeet, to appro- jtriate il to Ihemselves, it being a local subject, by acting for the whole Dominion and appointing their own oflieers, did not alter the character of the Act or deprive the provinco of that power which they had under '' mei'cly local oi' pri- \ate," thai it remained a local and private subject, and therefore the Doiuiniou liiccnse Acts were void while the local license Act was maintained. There again you Ihid another instance of there being no concurrent jurisdiction. It was the same thing in the same aspect, and therefore the power did not exist in iioth. Ilodge /'. Thet^ueen had decided tlie power was in the pro- \ince, ami therefore it could not be grasped by the Dominion by an enlargement of the area. The ISth section is practically prohibi- tion to those persons who freipieut public houses; for although by subtle means the section may be got round bv clubl)in"r tosrether to buy a dozen bottles, yet for all the |Mir- poses with which the Domiiiiun is concerned it i> prohibiiion. ' .;, ■ t- ' 9 ■ ■i f J ,<. ■ ilil,.. 1064 I3.N.A. ACT, H. 92 ({)).— LIQUOR PROHIBITION. Att.-Okn. ok Ontario i'. Att.-Gbn. of THB Dominion. Judgment. JajtA AVatsun. MtJiUrcii, CJ.C, in reply : Tlu; provinces have a ii<;lit to lf};islate oil any and all of llii; matters in- trusted to tliPin so long as they do not all'eet sul)joii tlir inunici|ial council of every eimiitv, town, townsiiip, or inedrponitnl village, 'besides the [lowtis iii present conferred (^n it bv law,' power at any time to puss a liv-lmv prohibiting the sidi- of iiiloNJijiiiii.r liquors, and tin issue of lici'ii>(> therefor, within the liiiiils ol' ili,. municipality. Such liy-lnw was not to take effect until siilniiittcd to and ajiprovcd by a inajorily of the (pialilied electors; and provi- sion was made for its subscuMcnt repeal, in |iii.-siil by the Parliament of Ciiiiinbi.tlhr' was no provincial law aiitlion/m^' the prohibition of ]i(pior sides in Ontario, save the Temperance Ad. 1864. ipi.APiWIiWW rpm " IIIBITION. , wi'i'i' in Mili>iiiiu.'(' rt'cont oi' these ciiiR't- nliodicd in liie 'rem- \mi (27 >t -JS Vi,:t. c'onlVrivd ii|iiin the iicil of nvcry county, lip, or ineDi'iHii'iiteil di's tlic powers lit ricd (;u it liy hnv,' tinit' to puss a liy-law V sidi^ of intoxieiiliii;; tin- issue of licenses liii tho limits of tiie Such liy-iiiw wiis ffcct until suliniitteil wl by a majority of electors; and provi- le for its subseipient ercncc, to an adverse I'Ctors. ious eiiactmenlsrelat- H' subject, wliieli were 10 time of the Union, 'd in the Consoli(liiri>(l ct, 29 it ;{() Viet. e. upowei'cd the CoiMU'il iiship, town, and iii- illii^e, uiid the Com- Police ill cities to 's for pi'oliibitinj,' the il of spirituous, t'ei- ;lu!r iiiaiiiifactined 11- ■ iiin or other house of iiiiiiiieiil ; and for pro- Uy the sah' thereol' ill iices other than hoiisos tertaiuiiicnt ; providcil lefore the iinal passing' lieeii iliily approved hy of the iiiniiieipality in prescribed by the Aet. ruion, the le<,'islntiire inserted these eiiiiet- 10 Tavern and Shop 32 Vict. c. :V2. Tiny tdy omitted from siili- olulationsof theJIiini- jifpior License Aeis year 1886, when I lie peraiice Aet wa> juisseil amontof Canada, tluiv •incial hiw aiithori/iiij; ion of liper Canada Aet of I8G4in municipalities where not in force, and concludes thus, — ' it is expedient thatmunicipalities should have the powers by them formerly [Missessed.' The enacting words of I i i f sfo? v.- f •« h*' »t*^" iij^KW^ifi^ RtiiiiUSUinKiin 1066 B.N.A. ACT, s. 02 (0).— MQroH riioiimri'ioNr, Arr.-dKV. OK Ontario i'. Att.-Okn. ov TiiR Dominion. Jiulgmi^iit. Loril WiitMoii. flic clmiHo, with tlic exception of one or two cliiiiifjcM (»!' expression wliieli ilo not atTect its snlisliince, n\v a mere reinodnetion of tlie pro- visions, not ol I lie 'rcniperaiice Act of lH(!l,lMit of llie ixiiidred pro- visions ol tlie Mnnieipai Act, L'it \- 30 Vict. c. 51., wiiich linil liein oinitteil from tiie consolidated st4itiites of file pro\iiice. A new proviso is added, to flic eifect tlial, ' nofliiii};; in this .>s( s of siibjccis wliiiji niv placed under the exc|iisi\,. jn,.;,. diction of ||i(. I'edeial I'liiliilm,,,! by that section. Tlie>c sonici^ dt jurisdiction are in llniii-ciw-. distinct ; and are to lir IuuikI in dilVerenl enactmeiifs. " It wasappiiri'iitly com. iii|ilii|,.,| by the fiiiniers of the liii|iti'iiil ,\,t of 1H()7, tliiif the due exeicis,. i,!' the enniiieiiifed powers eoiilViii'il upon the I'arliaiiii'iit of CmujiiIh by sec. !)I mi<,dif, occasiniiiillv and iiicideiitally, inxiKc le^ivlnijuJi upon matters which an. priuin fiirii' coniinitted excliisivelv to tin. pro\incial legislatures b\ sec. !I'J. In order to provide aij;iiiiiM timi colli iiigeiicy, the coiiclndin;; |kii| of >ec. J)l enacts iIimI ';mi\ matter comiii;;- within any of thV class<'s of sulije(!ts emiiiiciiileil in this section shall not be dccnuMi lo come within the .lass of mnttcis of a local or private nature eoni|iiisi.(| in the eiinmeralioii of the classis,]!' subjects by this Act assigned cn- clusively to tlu' K-gislMlurcs of \\w pro\inces.' It was obseiveil bv this Hoard in C'iti/eiis' ln>ni:iii('i' ('oiii|>Miiy of Canada /•. l'ais()n> (7 Ap. Ca. lOS), that llie paiiiL;r;i|pli jiisl (inoted 'applies in its ginm niatical <'onsfruefion only lo .\o It! of sec. J)2.' The obscrviition was not material to the (|ni'.iilijccts by this Act assigneil I'x- I'iiisivcly to the legislatiu'cs of the inoviiices ; ' and it is declared, lait mil so as to ri'strict the generality (•f tlicse words, that the exclusive authority of the I'ai'liamcnt of Ca- iiiiiia extends to all naitters coming within the classes of suhjects which arr enumerated in tlie clause. There may, therefore, he matters iiul included in the enumeration, ii|Hin which the Camidian ParUa- iiiiiil has power to legislate, liecause lliry concern tlie j)eace, order and ;!(|(hI government ot the Dominion. lint to those matters which are not >|Nrilird among the eninuerated Milijccis of legislation, the e.\ce[)- liuii IVom .see. !t2, which is en- iiititl liy the c(. ought to he strictly contlra-d to such -^'^•-^•''>- "••■ ", •' -111. TUB IJOMINION. matters as are nncpu'stionalily or JudiTnicnt. Canadian interest and importance, lionl Watson, and ought not to ti'cnch upon pio- vincial legislation, with respect to any o f thi clas.ses o d)ject.s (innneraled in see. 92. To attach any <,;her construction to tin; 'Ueral power which, in siippl(>nu'nt .f it s enuuHT aled (low rs, IS con- ferred upon the Parlianu'ut of Canada liy sec. 91, would, in thou" Lordships' opinion, not only lie contrary to the intendment of the Act, hut would practically destroy the autonomy of the provinces. If it were once conceded that the Parliament of Canada has authority to make laws applicalile to the whole Dominion, in relati concern tl le peace, order and gooiii|)s to indicate, that the exercise "1 lt'j,'islative power by the Parlia- nntil it has been adopted and en- acted by the provincial legislature. These enactments would be idle and abortive, if it were held that the Parliament of Canada NTANln V. ATT.-dKN. OK Tim Dominion. JudKmi'iit. Ijom Wiitsuii. Uh'uI or prnviiwiiil, anil i1(m\s nnt truly afTcct tins interest of tin; Doiiiinion lis ii whole. 'I'lieir Lonl- ships (Id not (loiil)t ilint some nmtters, in their ori(;in loeai anil ])roviiu-iiii, iiii;;lit attain hiicIi ili- niensions as to iilTeet tiie hodv jiolitic of the Doniiiiioii, ami to jiislil'v the Canat of the Dominion. But great eiiutioii must heohserveil, in (listingiiisiiing lietween tiiiit which is local and provimial and therefore within tlic jurisdiction of the provincial le^rislatiircs, and that which has ceased to 1h' merely local or provincial, and has liccoine matter of national concern, in such sense as to Itrin}^ it within the juris- diction of till* Parliament of Canada. An Act restricting the right to carry wcaiions of oil'enee, or their .sale to young persons, within the province, would he within the authority of the pro- vincial legislature. But trallic in arms, or the poss»'ssion of them under such circumstances as to raise a suspicion that they were to l)P u.-H'd for seilitious purposes, or against a foreign state, are matters wliicli, their Lordships conceive, might 1r' competently ilealt with hy the Parliament of the Dominion. "Th«' judgment of this Board in llussell i: The (iiieen (7 Ap. Ca. S29) lia.s relii'viHl their Lordships from the ditlicult duty of consider- ing whether the Canada Temper- ance Act of 18HG relates to the peace, order and good government of Canada, in such sense as to bring its ))rovisions within the com- petency of the Caiuidian Parlia- ment. In that case the controversy related to the validity of the Canoilu Temjierance Act of 1878 : and neither the Dominion nor the provinces were repri'sented in the argument. It arose between a private prosecutor iiiul a person wlio had been convicted, at his instance, of violating the provisions of the Canadian Act, within a district of New Brunswick in which the pro- hibitory clauses of the Ad ||,i,| been adopted. Hut tin- |>ii(visi(,iis of the Act of 187H were, jn „|| malerijd respects, the snnir wjtli those which are now einlMidicd ji, tiie Canada 'I'einpenincc Ait nl IHHti; and the I'ciisoiis wliicii wci,. assigned for sustaining the viiiiditv of the earlier, are, in liicir Lonj. ships' opinion, etpialiy applicnlijc to the latter Act. It therefore ii|)iN.|||'« to them that thederi>i already been noticed, be iil lilii'ri\ to exercise its legislati\e aiilliorilv. although, in .so doing, it siioiiiil interfere with the jurisdiction ol the provinces. The scope ami elTect of No. 2 of sec. 01 weit discussed by this Boiu'd nl xouic length, in Citizens' InsuraneeCom- |)any v. Parsons (7 Ap. I'.i. 96), wheri' it was decided that, in tin- absence of legislation iipini tiic sub- ject by the Canadian Parliament, the legislature of Ontario liiui authority to impose coinlilions, n- lieing matters of civil ri^jlif, npon the business of fire insurnntc. which was admitted to be a tnuii . so long as tho.se conditions oniv affected provincial trade. Tlicii' Lordships do not find it ra'ccssniv to re-oiH'ii that di.scussiou in tln' present case. The object of llu' Canada Temperance Act of 18HI1 1 province, neces.si n.X.A. ACT, s. 02 (0).— LIQl^OR PHOHiniTION. 1009 ^YTT i«, not to rcgiilati- rctiiil tnuisuc- lioiis lictwrni those wliK ti'iidc in |ii|iini' iuhI tlicii' nistoiiKM'H, lint to iibolisli till siicli tniiisiu'tidiis williiii (VciT provinciiil iifca in which its eniu'lnu'nts Imvc \»-vn M(l(i|)t<'il \>y a mnji'iity "I" the local diM-tors. A IHiwcr to ri'^^iilafc, natnrnliy, il' not nwpssai-ily, assnnics, nnlcss it is cnlnri^i'd by the context, the con- •frviitioii of tile thing which is to lio miuk' the snbjcct of lef^iilation. ill liiat view, their Lonlsliip.s are iiimlple to regard the prohibitive inni'tnients of the Canadian statnte of IHhO as rcgnlations of trado and cominerct'. 'J'hey see no reason to modify the opinion which was re- (ciilly expressed,on their behalf, by Lord l)avey,in Municipal Corpora- tion of the Citv of Toronto r. Virgo ([1H!I6] A. C.'93, and see post), in liicsc terms: — « Their Lordships liiiiik there is iinirked distinction to liedniwn In^tween tho prohibition or |)i'evention of a trade and the r»nnlation or go\ ernance of it, and indeed a power to rogidate and ;;ov('rn seems to imply th(> con- liniitMl existence of tinit which is to 1h' regulated or governeil.' "I'he authority of the legislature lit Ontario to enact see. 18 of !)',i Vict. e. 5G. was ass(!it«'d by the Appillant on various grounds. Tile first of those, which was very •tiongly insi.sted on, was to the clfeet that the power given to each province by No. H of sec. 02, to creiite municipal institutions in the provinoe, necessarily implies the right to endow these institutions with all the administrative func- tions which had l)oen ordinarily imsse.sscd and exercised by them ln'foie the tinio of the Union. Their Lordships can tlnd nothing to siip|)oit that contention in the limH, entrust to u Att.-Qkh. ok miincipality the execution of powers "'''•'Anio v. which now belong exclusively to ■^^:'iyZ'Zs. the rariiameiit (d Canada. Since Judgniont. its date, a provincial legislature Lord Wntnon. cannot delegate any power which it does not poss<'ss ; and the exti'Ut and nature of the functions which it can commit to a municipal body of its own creation must ilepeiul upon the legislative authority which it d'rives from the provisions of sec. 02 other than No. S. " Their Lordships are likewise of opinion that sec. 02, No, 0, does not give provincial legislatures any right to make laws for the abolition of tlu' liipior traffic. It assigns to them 'shoj), sjdoon, tavern, auc- tioneer ami other licenses, in order to tho raising of a revenue for provincial, hx-al or municipal pur[)oses.' It was ludd by this Board, in Hodge v. The Queen (9 Ai). Ca. 117), to include the right to im|)ose reasonable conditions upon tlu' licensees, which are in the nature of reguhition ; but it cannot, with any sliow of reason, be con- strued as authorizing the abolition of the .sources from which revenue is to be I'ai.sed. " The only enactments of sec. 92 which appear to their Lordships to have any relation to the authority of provincial legislatures to make laws for the suppression of the licpior traffic! are to be found iu Nos. 13 and 10, which a.ssign to their extdiisive jurisdiction, (1) ' proiierty and civil riglits in the province,' and (2) 'generally all matters of a merely local or j)rivate nature in the province.' A law which prohibits retail tran.s- a(!fions, and restricts the con- sumption of liquor within the ambit of the province, and does not affect tran.snctions in liquor between persons in tho province and persons in other provinces or in foreign countries, concerns proj)erty in the province which wouhl be the subject matter of the tran.sjictions, if tliey were not pro- hibited, and also the civil rights of 1070 B.N.A. ACT, s. 02 (})).— LIQUDR PHOHIBITION' Att.-Oev. ni- iHTHons iu the province. It i.s not Ontaiiio 17. iin|)(»ssililp tlmt tlio vico of iiitcni- .\n'.- iKN. OK jH-i-iiiicc luav pifvail in iMirliculHr TUB UOSIINION. { ... .;, .' . ' , , lociililU's witiini a pi'dviiicc, to siieli ■onstitiiti' its cure Judgment. I,onl Watson. Hii c.'cti'iit as ipS.viil by rest rid in;; or proliiliitin}; {Iw suit' of li(inor a iiiiittcr of a mi-rely local or private nature, and there- fore falling; priind faeiv witliin No. 1(5. Jn tiiat state of matters, it is conectled that the Parliament of Canada conld not im|U'ratively enact a i)roliil)itory law adapted nud eoidined to the re(|niremeiits of localities within the |)ro\inec, where prnhihition was ni'ficnily needed. "It is not necessary, for the an pnrpo.ses ol the present appeal, to determine whether provincial Icfjis- latioii for the snppivssictn of the li(pior tiidlic, coidlned to matters which arc pro\ ineial or local within the mcaninj; of Nos. l.'i and Hi, is thoi-i/.cil liy the one or hy the other of these heads. It cannot, in tlii'ir Lorilships' opinion, he lojiicaily hehl to fai! within i)(>tli of them. In sec. 02, No. 16 appears to them to ha\c the smne ollice whit'h the general enaclinent, with respect to matters concern in<; the peai'c, o; de, , and j^ood }j;ovei nmeiit of Canada, so far as supplementary of the eniinicrated sntijccts, fullils in sec, 01. It to \\v pn 'ial lefj;islatni'e all matters in a jirox in- eial seii.se local or private, which have hceii ouiitteil from tlu* pre- eediniiips on liclialf of tlu^ Hespnadents, it was pi'aetieally cont-eded that a pin- \ ineial lefjislatiu'c must ha\t' power to (l-.-al with the restriction of the liiiu-*" trallic from a Incal and pro- vincial point of vii'W, unless it he held that the whole suliject of re- sti'iction or alidlition is e.\clusi\i'ly committed to the Parliament of Canada, as lH>in<; within the w. j;ulation of tratle and eiMuMKrcc In that ease, tlic snlijeci, in s,, f,,,', at lea.st as it had been ri'^nilalcd liv Canadian leij;islation, would, liv \\{: tne of till) concludinf; enact nicnt of sec. 01, 1m.' excepted Injni tlic ;natters committi'd to priniiiciaj Ici^islatures by sec. 02. I'linn liu. assumption that see. 01 (2) ddcs "lot embrace the rif^ht te Mippnss a trade, Mr. Illake maintaiucij, tii.n, whilst the restrii'iion ^>i ihr ii({ii,i|' trallic may be competenlh m^il,. matter of le\in('i;i| as w;'ll as a Canadian aspcci. \|.t the Parliament of (,'aiiada Ims. liv cnaetinj; the 'renipcrancc Act lif ISSG, occnpic:! the whole imssililc Hold of lc<;islation in cither M>|iiit, so as comph'tely to exclude Icjiisi:!. tion by a province. That a|)|ii'ms to their lioi'dships to he the rcul |)oint of controversy raise aiv within its comiietcney, nuisl evii'- ridc provincial legislation. Hut tin' Dominion Parliament li:is n.)aiiiliii- rity eonferi'cd noon it by t!ic .\(t to ri'itcal directly any pio\,iicial statute, whelher it does (a' doe-; imi come within tlic limits of jurixlic- tion prescriU'd by sec. 02. 'I'iir i('|ieal of a provincial Ai't l>y tin' Parliament of Canada can mily I*' ciVeeted bv repu;.'naney between it- provisions and the enacliiient> i.f the Doiuiidon ; and if the evistcmv of siu'h repugnancy shonM iiccoiiii' matter of dispute, the eoiitinvilsv cannot be .settled bv the ;i(ti"ii eithei ol the Dominion or ut' liic provincial le;;islaturc, 1 ut nai't Ik' submitted to the judicial irilMiiiiii" B.N.A. ACT, s. i)'2 (})). -LIQUOR I'llOIIimTION. 1071 • r i' !r of lilt' cininlrv. In flu'ir Lord- slii|)s' <>|tini(>ii, IIh' cxpross rcpt'iil of llio old provincial Act of IHfJl liv llic Cm lilt la 'IVinpcraiicc Acl ol' |!e, the l(';;islatnre of C^ucIkm' hail n'|icaled ;i statute continued in lorce 'd'tcr llu' I'nion by see l'2U, which had iliis pccidiai'ity, that its provisions ;i{)|ilicd lioth to (jnchec /Mid to lliiliii'io, and were incapalilc of ln'iii^f scNcred so as to make them ;i|)|)licalile lo one (tf these provinces mily. Their liordships held (7 Ap. Cil. 117) thai the powers conferred 'ii|i(iii the provincia' Icj^ishr ■< iif Ontario and (^iieliec to I'l .d and alter the statutes of tlle (dd |«iilii!iiicnl of the province of I'liiiada are made preei.sely co- extensive with the powers of I'.ii'wt lej^islaiion with which tiiese IhhIIi's are iiiNcstcd Itv the other iliiiisis of till' Acl of 1HI»7'; and ili.it it was licyond the authority of 'lit' It'iiislatiirt^ of C^uelice lo repeal -lii'iiltiry eiiaclnienis which affected IniiIi (^iieliec and Ontario The Mint' principle oii^^hl, in the opinion "I ill' ir !iordshi|)s, to he applictl I" tile pn. sent ciise. Tl." oh' 'i'cni- licmiict Act of lH(»!r was passed till' rpper Caniida, or in other «"iils for the province of Ontario; iiil its provisions, being coufined lo tliat proviiiet' only, could not IIB Do.'kllNION-. .Fudgnu'iit. Lonl Wutson. have hoen directly enacted by the Att. Okn. m Parliament of Canachi. In the «lvrA ro- vince. In like manner, the c.\pre.s.s re|»eal, in the Canada 'l'em|)eiimce Act of lHiS(), of litpior prohibitions adopted by a municipality in the proxincc (»f Ontario iiiiiler the sanction of provincial le<;islation, does not appear to their Ijonlships to be within the aiilliority ot the Dominion Parliament. "The ipiest ion must iit'xt be con- sidered, whclhci' Ihe provincial cii- aetmeiils ol .sec. IS, lo any, anil if so lo what c.slcnt, come into col- lision with the provisions of the Canadian Act ol IHHU ? In so far as they do, pro\incial must yield III Dominion legislation, and must remain in abeyance unless and iiiilil the A< ! of ISS(? is repealed by the parliament which pa.s.scd it. "The prohibitions of llie Do minion Acl have in .some respects an ctVect nhich may exlenil be- yond the limits of a province; and they arc all of a \ery slrin<^ent character. 'I'hey draw an arbitrary line, III cif.'jht f^allons in the ca.se of luH-r, and at ten "gallons in the caso of other inloxicat'!"j; rK;iioi'H, with the view of discriminating iM'twccn wholcsa^i .;d retail transactions. Hclow >!.. iimit, siile.s witliin a disti'iet wiiich has lulopteii the A^' iiindo in an adioinin<7 district wIiiMi! tlic Ai't is in force. If tlio adjoiniiijj district liapiK-ncd to Im; in a different province, it appears to tiieir Lorilsliips to be doiilitfnl, whether, even in tlio al)sence of Dominion lejjislntion, a restriction of that l,, which fixes the line lietwcen wholesale sind retail at one do/en of liipiia' in bottles, and the jiallops if sold in other receptacles. The importer or inanufactnrer can sell any (pianlity a!io\(' that limit ; and any retail trader niii\ do the same, proNided that he sells the liipior in the ori^^inal paeka;;es in which it was received by him from the imjiorti'r or maini- faetiirer. " It thus appears that, in th'ir l that theii provisions could not Ih' in force within the same district or province at one and the same time. In the opinion of their Lordships, tlie ipiestion of eoidliet between their provisions which arisc'^ in this case doi's not de|K.-ml u[miii their iviol B.N.A. ACT, 8. 92 (n).~LIQlTOR PROHIBITION. 1073 the Act of 1SH() Iiiivo bpon ndnptetl llivtlmt (listrii't. Hut t!ii '■• Ldid- sliips can discover no ail(M|Miit<' I jroiimls for holdiiifj limt tlirrc cx- l-is rcpuKimncy lK'tw( fii the two laws in the districts of the |ii'(>vinc(> of Ontario where the prohiliitions oftiie Caiiadiiin Aef are not, and niiiyni'\er be, in force. In a dis- irk't wiiieh lias, by the votes of ii< electors, rejected the second part i the Cunacban Act, the option is I ilHiiisihed for tlnce years from the toe of the jjoll ; and it liardly Limits of doubt, that th«-re coidd 1 1*110 repugnancy whilst the option •ivi'M by the Canadian Act was Uvjiended. The Parliament of I'lmada has not, cither expressly (.r liv IniplicatitMi, enacted, that so Itaifras any district delays or refuses IliiiKTept the prohibitions which it lb authorized, tlu- provincial par- (liamcnt is to be dcbai icd from ex- hiviMn;; the h'<;islati\e autlau'lty IlivcM it by sec. 5)2, for the suppres- •imi iif tlic drink trallic as a local Ifvil. Any such Icfjislation would j ic unexampled , and it a <;ravc hiKslion whcthci- it woidd be law- iiil. Even if the jirovisions of sec. Mmil been imperative, they wriis 111! y can ascertain from tiu' jBiwiil, tlicse diiTer from the ipus- ti 2a(o. tion which has nlready Injon an- Att.-Orjj. or swered, in this res|M'et, that they Ontario v. relate to mutters which nniy pos- -^TT--f«>' 'u' sil.ly become litigious in tlm future, J"l"^^^^^^^^^^^ but have not as yet r in the province. "Answer to (»^uesf ion IV^. Their Lordships ansvi'cr this (picstion in the ne;;ative. !t appears to them that the exercise by the provim-ial le;.>;islnture of such jurisdiction, in the wide and {lencral terms in whicli it is cxpres.-icil, would i)roba!)ly trench upon th(> cxcluHive autho- rity of the Dominion Parliament. *' .Answeis to (.Questions V. ami VI.— Their Lordships conmd:"' it unneci 's.saiy to ^ivv a categorical I'cply to Cither of these questions. Tluir opinion upon the |ioinls ) 4 107 t B.N. A. ACT, s. 02 (9).— LIQUOR PROHIBITFON. Att.-Ohn. op ONTAIIItt V. ATT.-'iK.y. OF TUB Dominion, Orilcr in Council. '.*, ' t which the (|iie.stions involve liiis been sufTicieiitly explained in tlu-ir answer to tlic seventh question. "Their Lonl.ships will Iniinlily advise Her Majesty to discluir^e the order of the Supreme i^oiirt ot' Canada, dated the 15 .lanuHry, 1895, and *o substitute therefor I the .several answers to flic seveal (piestions submitteil by the (rover- nor-deiieral of Caii'idi, \viiicli| have been already iutlieateil. "There will be no eiots of \\m\ a|)peal." The Order in Council i^ivuii;.^ effect to the al)i)vo| iu(li»ineiit, after veeitiiiL^ the facts, was in/cr (tllu as| follows : — .lud^^ment of the Suprenu; Court of Canada, dated 15th .lanuirv |S!),i oujiht to 1m' diseharjied ; and in litMi thereof there ouj;ht t( suhsli tuted the following; ausweis to the s.iid seven (piestions ' liereinliifi set forth, that is to stiy : — " 1. In answer to the 1st (Question : — That a provincial lejrisintiimj has jurisdietion to restrict the salt; within the Provin-e ofl intovicatin^ liquors .so loin; as its le^^isiation ilo.'s not ennllictl with any lejj;islative provision wliii'h may be e(Mupeleiitlv iiiiula l»y the I'arliament of (Canada and which may be in force witliiiij the province or any tlistri'/l lli "2. In iinswer to the 2nd Qnesti ■That ll lose portion- of tlu ice (11 coll Province as to which the Canada Temperance Act 180(1 is nol in operation the i)r()vineial lc<;islaiure has such juri.-idietiiin A is indii-tited in the answer to the 1st (Question. '3. Ill answer to the .'Jrd Ciuestion : — That in tlu; abse Hictin;^ lej^islatioii by the Parliament of Canada, a [iroviiu'iul le!'ohil)it the inanufactiire ol intoxicalini^ li([Uors within the provinei; if such ni:iiiiif:ieliiit be carried on iindtu" sucii eircumsttmces and coiidilions us to make its prohibition a merely local matter in the province. 'I. In answer to the llh (Question: — No useful answer can he j;iv( to this (picstion in the absence of a pre'.'i.se stateiiient of tli( facts to which it is intended to apply. There may Im' .som^ cireumstances in which a provincial le{;isliiture will and othei'S in which if will not have such jurisdiction. '5 and (5. In an.swer to the otli and Otli Questions: — The leplit fallinjj to bi' made to these questions are sullicieiilly iiiiliciiliil in the answers to the 1st and 7tli Qiiestioi IS. '7. In answer to the 7lh (Question: — I'liat the h';;ishitiiie of Oiiliiiid had jurisdiction to enact .section IH of the Act .");{ Vicioii^ cap. 5(i., as explained by see. 1 of the Aiii Bt/la'w 2153. sec. 12; Bi/-law 293'1. s. 12. 2a. A ninrke«l distinction is to be drawn between the prohibition or pre- vention of u trade and tiie regulation or govrnance of it, and indeed a |H)wer to regulate and govern .seems to imply the continued existence of that which is to he regulated or governed. The Municipal Act of Ontario, e. IHl. s. 11)5, sub-s. (3), provides that municipalities may make by-luws for " li ensing, regulating, and govern- ing hawkers or |)etty chapi.ii'n and oiher persons carrying on petty tniiles who go from place to [lace or to other men's houses on foot or with any animal bearing or dm wing any goods," S:r. In 181)0 the Corporation of Toronto made a by- law enacting that licTUces should be taken out by hawker.'^, petty c'lapnieu,* and other ix>rs()ns carrying on petty trades. in 1891 an amending by-law was passed whir-h in effect provided tbitf no hawkers, petty chapmen, &e., slioidd after i certain date pro- sit'iite tlieir calling in substiuitially the leading thoroughfares of Torinito which extended to ten miles. Held that the by-law was ultra vires, b'cause a power to make laws to regulate, without express wovds of i)rohibition, gives no authority to a iiiunieipality to make it unlawful to carry on a lawful trade in a lawful nmiiner. AjJiK-al from the Supreme Court, Canada [see 22 S. C. 447], revers- ing u decision of the Ontario Coint of Appeal [20 O. A. 1, '55], and the JlH,•i^!on of Gait, C.J. of the C P., Ontario. The Municipality Act of Ontario, ll.S.O., c. 184. s. 495,sub-.s. i3), (Hissed in 1880; 43 Viet. (().) c. 24. s. 13, and re-enacted in the Muni- ii|ud Act of 1882-3 (16 Viet. e. 18. s. 45)5. sub-s.) (3) ga.e power inter (ilia to the Council of a city to pass by-laws for licensing, regulating, aiid governing hawkers or petty cha])men and other persons carrying m petty trades who go from place to place or to other men's houses on fiiot or with an_ animal bearing or draw ing any goods. {See the full ^it'tion given Inflow in the judgment expresseil by fjord l)a\ey.) Uy the by-law No. 2153, s. 12, subs. (2) pas.sed by the Municipal ('(luncil of Toronto on 13 January, 18!)0, as amended, it was ordained liiat licences should 1k' taken out by hawkers, petty chapmen, or other iKisiiiis carrying on petty trades. On 2(i (ictolier, ISiH, the same numieipality passed the by-law No. 2!)34, which amended sec. 12. of by-law No. 2453 by adding tluii to sub-.sec. 2a., which enacted that no jter.son named and specifier in sub-sec. 2 of that section, i.e., 12 of No. 2153, whether a licensee or ii"t shall after the 1st .July 18!t2 prosecute his calling or tnuh- in any III the following streets and portions of streets in the City of Toronto. Then followed an eimmeration of the leading thoroughfares in Toronto, and which covered, in th(^ aggregate, 10 miles. An application to tpiash the by-law sub-see. 2a. was made, with the ultimate residt (as set out above), that the Supreme Court held the by- law til be ultra vires, a Y 2 'I t MUNICII'AL CoUPOriATlON OK ToUONTO f. Vmoo. Judgment. Lord Diivoy. T^76 REGULATION OF TRADES. On apiM^iil to the .Tiulicial Committoo [IG Novomlwr ISO')] : — Juilfjinont was delivt'ivil by Lord Davoy as follows [tliorc liciii}; also present Lords Watson, Ma<'na};li- teu, Morris, and Sir 11. Coneli]: — This is an ap|)eal from a judiec. 12 of by-law 20.'M, in amendment of sec. 12 of by-law 215.'$. Tlie last;mentioned section as amen'rchandisc for ^ale; exc(4)t that no such license shal; be requii'ed for hawking, peddling, or selling from any vehicle or other convey- nnee good; , wares, or m«'rcliandisc to any retail tiealer, or for hawking or peddling gocnls, wares, or mer- chandise tlie growth, produce, or manufacture of this province, not being liijuors within the i.' aning of tlie law relating to taveri .•< .u tavern licenses, if the same are being hawked or ]ieddlcy his hon 'Jide servants or employees, having written authority in that behalf, and such s'l \ant or eiu- plovee siuiU ])r()iluce and cxhiliit iiis written autiiority when i{'i|;iircurpo.sps " 'For licensing, rpgulaiin(;, nml governing hawkers or petty clia|)- men, an houses, on foot or with nny nniniiil, j bearing oi- drawing any jiimth war»'s, or merchandise fo." side, or I in or with any Umt, vc.ss«'i, or I other craft, or otherwise ('.irryin;; j goods, wans, or luerchandi !■ furl sale, .•«ntl for fixing the sum I" '«' l)ai(l tor a licen.M- for cveni-iiiiSl such calling within the coinitv.l city, or town, and the timr ;l)f| licen.sc Hhall be in force: " ' In <-Jise of counties, fjr jho- ' ! r iF REGITLATION OF TRADES. 1077 vkliiif;, at the discretion of the coiiiK'il, either tlie troiisurer or elork of the comity, or tlio clerk of any luiiuiciimlity within the county, witii licenses, in tliis and the previous «iil)-scction mentioned, lor side to |i.irties a|)))lyiny Ills bonAJidc servants or omployees Iwving written authority in that iM'hall'; and such servant or ein- ployee shall produce luid exhibit his written authority when reipiired so to do hy any municipal or iieaee officer: .... " (rt) The word 'hawkers' in this sub-section shall include all persons who, being agents for per- Mins not rcsidei;? within the county, s'll or offer for .side tea, dry goods, or jewellery, or carry and expose wuiples or pattern.s of any of such poods to be afterwards delivered within the county to any person not being a wholesale or retail dealer in such goods, wares, or iner- cimndisc!." Keference was also madt? to sec. 503 of the same Act, whi( h occurs iimlir tl 1- rubric " Markets." This sectiiii: em|M)Wcr8 the council of ?very city, lown, and incorporitfed village subject to t'le restrictions «ii(l exreptions contained in the last IHtreding six sections to pass l>y- liiwsfor; — 1. Establishing markets. '. Uegulating markets. 3. " Pre- venting or regulating the sale i)y retail in the public streets, or vucHut lots udjaccut thereto, of any meat, vegetables, grain, hay, fruit, Municipai, beverages, smallware, anil other Cobcohatiow articles offered for sale." P,"" Toiionto v. I licir Lordships are not reipiired Jufjgnient. lo construe this .section, or to fiay Lord l)avoy. whether the words "adjacent there- to " do not refer to liotli public streets and vacant lots and mean adjacent to a market. Having n^- gard to the previou.s .sections under the .same rubric they think the clause is one for thi- protii'tion of the market only, and of limited ai>plication. Ill the opinion of their Lordships it cannot be relied on in jiistitica- tioii of the section now in (piestion, and indeed tli(> point was not pressed by the learned counsel for the appellants. It appears to their Lordships that the vi'w\ (pu'.stion is whether under a power to pa.ss by-laws " for re- gulating and governing" liawk«'rs, r. It is argued that tlie i)y-law impugned does not amount to prohibition, becau,s(> iiawkers and cluipinen may still e.irry on their business in cc-rtain streets of tiie city. Their Lordships cannot ac- cede to this argument. The (juos- tion is one of substance, and siutiiM be regarded from the point of view as well of the jmblie as of tin. iiawkers. The effect of tiie hy. law is practically to deprive tiiv residents oi wiiat is aduiitteiilv iln. most im[)ortant part of tiie citvut' buying their goods of or (»1 tiaiiiii" with the class of trach-rs in (|iit.s. tion. And this ob.servation nccivos additional foretf from the very wide delinition given to " hawkers " in the Act. At the same time tho *' hawkers," itc, are excluded I'loin exercising their trade in t|j.at imrl of tlie city. There was no evi. dence, and it is scarcely conceivaliie that the trade cannot be carrioil on without occasioning a nuisance. The appellants in their priiitiii case wisely disclaim any intention on the part of the council to dis criminate against hawkers and jiediars in favour of perniiuitMit sliopkeepers. No other explaiiii- tion of th" object of the by-laws is offered. The (juestion therefore is reduced to a bare question of l)ower. Tiieir Lordships on tht' wlnlc have come to the conclusion tliatii was not the intention of the Ad to give this power to the Corporation. They therefore agree witii tlio majority af the judges of ih. Supreme Court, and will liuinli advi.se Her Majesty tiiat this appiiil be ilismis.sed with costs. " U "U w< T \I)ES. liis urKunu'iit. Tlic (|uos- (> of rsiihstaiicc, iiiid slioiiM led Inmi the point of view of tlu! |ml>li(' as of tlir The ftrt'ct of tli(> l,y- )rartit'ully to (l('|tii\c tiic I oi w'uat is atlinittcilly ilic portaiit part of llic city (if lu'ir fjoods of or of tnuliiii; class of tradiTS in (lucs- lid this oliscrvatiou nccivcs al forcK fronj tlic very wiilc II givtMi to " hawkers " in At th(^ saiiu' time tin- I's," ifcc, an'fxehidcd from iir Ihoir trade in tUat imii uity. Tliere was no evi- iul it is scarcely conceivalili' I tiaih' cannot he canioil on , occasioning a nuisanci'. )polhints ill their inintnl sfiy disehiiiii any intention part of the council to (lis ite against hawkers and in favour of pennaiiiMit I'pers. No other explana- th" ohjcct of the hy-laws ed. The (jiiestion therefori' iced to a Imre question (it ir Lordships on the Vil-nlc ome to the conclusion tliat it )t the intention of the Ait to j lis power to the Corporation therefore agree witii tlu' | ity of the judges of me Court, and will Immlily I Her Majesty that this a\)[K»\ missed with costs. PRIVILEGES OF PROVINCIAL PARLIAMENTS. 1079 IIELUING AND OTHERS AND Appellants. Judnment ill I'.C. Ill- 28 July, 1806. Kurilutt t'. .Abbot, ™MAS AV«7;o«./..^ „ ,,, „„, n • •/ II A' I I I ^, . Sberiff (it J'nnlvf/cs — //(iiisr oj Asxdiiliti/ — ( imtciiipt coiiiiiut/til iii Jaw of the M\M\estx, House — I'ower to puiiish by tiiifn-'mmmoU — Anvst of Member — II Adol. nnd The House of Asscmhlij us a Court of llevord — // A'. A. Art, ''''• ^73, 1807, *. 5)2, sub-s. 1 : '1h\\ 2!) Vict. r. (iiJ. .v. T) : .'{8 .y ;«» Hi I. c. 3rt. *■»"'"""'• .«. I : Ji. S. A'. »S'. (5//* Ser.) c. 3. *,y. •>(), L'O, 2!), .'ill, M. 'i'lie iiide|)eiiden(e of a Colonial Li'gislature from outside inteiferen v. iind the protection of memhers from insult while in the di.scliarge of their duties, are matteis part of the conslitnlion of the province. A Provincial House of Assembly can he a court of record for the imiiisliuient of contempt committed in the face; of the House; and the exercise of such jurisdiction does not enter the department of .state known as the criminal law. A Colonial liCgislalnre cannot «'oiifer on itself the priviU-ges of the House of Cominons of llu^ United Kingdom without express authority Iniiii the Imperial Parliament This ant horily is given liys. .')of2H & 2'.) Vict. c. 0.'i., Imt a further step is ictpiircd to give the right — namely, that the provincial legislature should pass a law giving its own legishiture tiiose privileges, immunities, and powers, &c. It must now he admitted that the law has heeii laid down differently fioia \\w d«!cisions of Ministers of ./iistice [»SVr ante, p. 11'], and that Ihi; provinces of Cdtiiida rt'tain their independence, exce|>t as regards mi. Iters aiTccting the Pe.iec, Order, and (iood (iovernment of ('anntia. Uy sec. 92 of the Uritish North America Act, 18(57, powers to alter their eonstitntions are conferred on the provincial legislatures of CaiKtda ; tills iiicluis Acts detining the privileges, iininuiiitii>.s, and powers of their respective legislaliiics, and to exempt the memhers I'roin all actions for petitions, bills, or resolutions before either Ifon.se of jjegi.sjature. The Nota Scotia Legislature having passed such an Act, a mcniher of the House of Assembly committed contempt in wilfully disobeying an order of the IIou.se to attend at the Bar to be icpiiinnnded. The IIou.se by resolution ordered him to be Uikeii into cii.stody by the sergeant-at-arnis, nnd commitled under the Speaker's waniint to the common jail. Thereupon the offend«'r brought an action lor false impri.sounient against the I'rcmicr and otliers who votetl lor the I't'solution, and obtuined diimages. Held, by the Judicial Committee, reversing the judgment of the Supreme Court of Xora Scotia [20. N.S. 55J, that the Legishit ure of Nora Sailia had power to pass the Act, nnd the Hou.se of A.sseinbly to coininil ami punish such an otfender, and that the plea of indemnity against any action at law for things done in the Provincial Legislature, relied on by tlie Premier nnd other members of the House, was valid. Ihirdrtt v. Abbot, 14 Ea.sl, \). 0") ; and The Sheriff of Middlesex, 11 Adol. & El. 273, held to apply: Barton v. Taylor, 11 App Cas. 107, (listiuguisbed. This was an action brought against the Hon. W. S. I'iehling, Premier, and other members of the House of Assembly of Nova Scotia for votes given by them in the House to take the respondent David J. Thomas, 1080 CONTEMPT OF PARLTAMENT. ViKtDINri V. Thomas. Mayor of tho town of Truro, niiil a iiu'inlicr of the lloiisr, into umihIv of the S4-rg<>ant-at-arins for refusing to oln-y an order of tlic House, anil Hnbseqnently for eonnnittin<; liini to the eonnnon jail of the comity uf Halifax for 4S lionrn. It a]i|K'are(l tliat the respondent at tlio time of tlie tiansaetimis jn question was Mayor (tf tlio town of Truro, in llie eonnty of f'oAV/M/,.;., Nova Scotia. Krederiek A. Lanrenet-, one of tlie appellants, wiis He. eorder and Stipt-ndiary Alagiwtratc of the town of Truro and also a niendter of the House of Assendiiy for the county of Cohhestir. A liilj entitled "An Act to enahle the town of Truro to borrow certain nioiuy" was |)reparcd hy the Town ("onncil of Truro early in the session of IS'.)], and forwanlcd to Ijaiu'cnce to 1n> introtlnced liy him to the IIoum' oi' Assembly. It was aUefore introducing tiiis Dill to tiir Assembly, Laurence inst-rted two clauses therein increasing liis own wdary as said Stipendiary Magistrate. Tlie Dill was enacted as ol Viit., Chapter Hi). IJuring the M'ssion of the h'gishiture in IH'd'J, tlie Town Council prepared and foiwaiiled to fleorge Clark<', a sci-ond mcinlicr of the House of Assembly for the county of Colrhistcr, a jM-tition si};iiiil by the rcsjiondent as Mayor, and by the other members of the said Town CoiMM'il, praying lor the repeal by the legislature of the eiaiLst's of the said Act which they alleged liati iM'cn inserted tiiercin without tluir knowledge iuifore the said Kill was introduced to tile House, 'i'iicic was attached as an exhibit to tiiis petition a copy of certain articles ot com- plaint preferred against Laurence in certain proceedings then pending, for the removal of the said liaurence from his olliee as Heeonh-r of Truro. It wati further alleged that subse(|ucnt to its transmission, l resiiouih'nt, ami he thereupon ri- quested Clarke to return the |H-lilion. Instead of complying with tlii> rcque.st, Clarke gave the petition to Laurence, who laid it upon tiie tjililc of the House of A.ssembly. Tiiereupon the House of Assembly in ilic abs<'nce of the respondent passed a resolution ststting fortii that llir respondent, having caused a libel reflecting u|)on a niendier of llic House to be printed and didivered to a nu'inber of the House, for the jmrpose of being read in or presented to tiie House, was guilty of a brendi of the privileges of the House, and the res|)ondent was thereupon simniioiiiil to appear at the 13a r of the House. Tlie I'c.spondent accordingly iiji- jiearcd ut the Uar of the House on April IHtii, 1H!)2, and having a.sivcd tliat tlie consideration of the case should lie postponed until he had tiii' ausistance of co\in.sel, was directed to appear at (lu^ Ikr of the House uii April 20th. The rcsponilent did appear ut the Bur of the House on April 2()th, and tiiereupon demurred to tia- juri.sdictiou of the House, and stated that the acts which formed the subject of tiie complaint agniiiM Iiim were done by him in good faith in his capacity as Mayor of Tnnv, and were not libellous, and tiiat on Ixing informed that there wii doubt whether the petition, witii the dociimeMt attached thereto, con- formed with the rules of the House or parliamentary practice, he iiad caused it to lie witlidrawn. He then re(pie.sted to be cxcu.sed from furtiier attendance. Tlie n'spondent was then orally recpiested by the Speaker to with- draw, and remain in attendance, and he withdrew. The H0U.SI' then pas.sed the following resolution : — " That this Hous«', wiiile fully cognizant of its own authority, uiiiicr wliich David J. Thomas has appeared at the Bar of tho House, iwul prepared on all [iroiwr occasions to exercise it, does not deem the offunte AllllEST OP MKMBEU. 1081 U«c, iiUo liWdtIv c Speaker to witli- committud by Mr. ThoinnH of Hullu-ieiit gravity to call for niiy large I'ikldis" », cxi'ri'ist' of authority ; that, tluTrforc, Mr. Tiioiuns lie rciiriiiiaiidcil for Thomas. tii(< l)rcai-li of |)rivilcg(^ wliicli he lias ('(Uniiiittcil, iiitd tliut siieli n>))riiiiHiul l)(> given liy tlic rean a fiirtlier resohition of the said House, the Speaker then ordered tliiit the respondent nhould Ite again ealh'd in by tiie sergeant-at arniH (Ilaliburton). The sergeant-at-arnis accordingly <'oinininiieated such order to the i-p.s|ionde!it, who Htill remained in atlentlanee, but lie refused to o)M-y such onler, and h-ft the preeiiietH of the Ilou.se. Upon the re.spondent's said refusal and leaving being eoinniunieated to the S|)eaker by the sergeant-at -arms, the House resolved and onh'ietl that the respondent should be taken into tlu; eiistoily of tlit! .sergeant -at- iiriiis, and that the Speaker should issue his warrant accordingly, which tiie SiM'iiker diil. Oil the 22nd April the res[»ondent was arrested by the scrgeant-at- iirins at Tniro, and was thence taken to tlie Har of the House, when (vrtain (piestions were put and answers made by him. I'ltimateiy the House resolved that the respon was then asked whether he had liny st^itenient to make before the Hon.sc proceeded to adjudicate upon till' charge of contempt against him then pending before the Uou.si>, and rt'plied in the negative. He was then onlered to withdraw, and the Hous«t resolved "'('hat the Hiiid David J. Thomas for his .said oifi'iice be coniiiiltted to the common jiiil of the county of 7/a/i/ti.r, in the city of llalifuA\ for the space of forty-eight hours. " Provided, however, that in the event of this legislature In-iiig |iiorogued prior to tlu^ exi»iration of .said term of forty-eight hours, the Slid term of imprisonment shall on such prorogation forthwith de- tiTiiiino. " That Mr. Sju-aker do forthwith issue his warrant accordingly; and in the meantime the said David J. Thomas remaiu in the custody of the scrge4vnt-at-arms." The respondent was then again brought to the Uar of the Hoii.se by the sergeant-at-arms, and such resolution was read to him, and ho was then ordered to withilraw in custody of the sergeant-at-arms. The Sjieaker on the same day issued, pursuant to the said resolution, another wnrrant under his hand and seal connnauding the .sergeant-at-arms to convey the respondent to the .said prison, and commanding the keeiwr thereof to receive him. This was done, and on 25th April the re- spondent was discharged upon a writ of Habeas Corpus issued by the Supreme Court of Nova Scotia. The writ of summons in this action was i.ssued 27 April. On 30 April 1892 an Act (c. 42.) was passed to indemnify the Speaker and other officers of the House of Assembly who assisted in preparing and executing the warrants of April 20 and 23. The ease was tried at Truro 15 June and three following days, 1802, before Towusheiid, J.,' and a jury. The ' From printed liccord, p. 66. M :i!^liqi;' IMAGE EVALUATION TEST TARGET (MT-S) ^\e V.x 1.0 [Sl^ IIM I.I Z. lift '""^ lA^ 111112.0 1.8 1.25 1.4 1.6 ■• 6" ► y] :>:> /a /A // ^^ y Photographic Sdences Corporation 23 WIST MAIN STREET WEBSTER, N.Y. MS80 (716)872-4503 \ \ l\ > 1082 PRIVILEGES OF PARLIAMENT. FiEIjDIIIO v. Thomas. respondent claimed damages in respect of trespass, assault, and unlawful imprisonment. The main defence of the appellants was that by virtue of the R.S.N.S. (5 ser.) c. 3. s. 20 [see the Judgment below], the House of Assembly held, enjoyed, and exercised the like privileges, iunnunitics and powers as were enjoyed by the House of Commons of Cauadu, and h\ the House of Commons of the United Kingdom. Secondly, that b'v virtue of sees. 29, 30, and 31 [see the Judgment below], the House of Assembly was a Court of Record, and had the rights and privileges of a Conrt of Record to punish insults to, or libels upon, members of the House (luriii" the session of the legislature, and that the acts complained of were don" by the House in the exercise of such rights. Thirdly, they relied on their privileges as judges of the said Court of Record so constituted under the statute ; and foui'thly they relied on the 2Gth section of the statute, wheivbv a member of the said Hou.se is exempt from, inter alia, any civil actioii or damages for any mutter or thing brought by him by petition, bill or resolution, motion or otherwise, before such House. The respondent pleaded that the several sections of the statute relied on were ultra vires ; that the summons of 14 A]jril and warrants of 20 and 23 April were insufficient in law, and irregular and void, and issued • 'b ''t jurisdiction; that the warrants did not disclo.se the oifenee for - i>,ch the respondent was arrested; that the House acted without juris- dictii 'cc'uise the respondent was prevented from making a full answer and '^ii^L. having counsel to assist him; and that the House had no jurit J .tio-: to adjudicate upon the said libel or to commit the respondent to t) r coir.non jail. He further denied that the House was sitting or acting as a Court of Record. Townsiiend, J., ruled that the action nuist be dismissed as against llip officers of the House under the late Act. As against the appellants he directed the jury that the provisions of the statute, R. S. N. S. e. 3., were not within the competency of the legislature of Nova Scotia. Tlie jury assessed the damages at 3200, and judgment was entered for the respondent for that sum and costs. The appellants appealed to the Supreme Court to set aside the verdict and judgment and enter it for them ; and the res])ondent appealed from the judgment dismissing the action against the officers of thi^ House and moved for a new trial on the ground of misdirection of the jury by the judge on the question of damages. The appeal to the S. C. N. S. was argued on 7. 8, 9, 10, and II February 1893. On 2 Dec. 1803 Graham, E. J., McDonald, C.J., concurring, held that the sections in question of R. S. N. S. c. 3. were ultra vires of the local legislature, and that the House of Assembly were not indenniified against the action by sec. 26. Ritchie, J., was for allowing the appellants' appeal on the ground that the statute was not ultra vires ; and further that the House was sitting as a Court of Record trying v matter within its jurisdiction, and that the members accordingly could not be sued for acts done by them in their judicial capacity. Weatherbe, J., was of opinion that the statute shoidd be construed as empowering the House to deal with charges of crime only as an incident of protecting members in the proceedings in question.' The judges being equal in opinion, the verdict and judgment stood. On August 7, 1894, the Judicial Committee, on the petition of the appellants, recommended that sjjecial leave to prosecute the apical be allowed. The appeal was heard on 26 July 1895, Arthur Cohen, Q.C. ; Hon. J. W. Lucgley, Att.-Gen. for Nova Scotia ; R. L. Borden, Q.C. (N. S. Bar) ; ■ lU'ported under the name of Thomas v. Haliburton, 26 N.S. 5.'>. S. C. N. S.'Avn.s PRIVILEGES OF PARLIAMENT. 108H and J. C. Lewis Coward, were for the appellants ; the solicitors bein, Hill, Son, and Rickards. Hon. Ed. Blake, Q.C., and T. T, Paine wer. for the respondent, the solicitors being Paines, Blythe, and H> House of Commons of the United Kingdom [31 Vict. (D.) 22]. if it was within tlie powers of tlie Nova Scotia Legislature to enact the provisions contained in Sec. 20, and the privileges of the Nova Scotia Legislature are the same as those of the House of Commons of the United Kingdom ns they existed at the date of the passing of the British North America Act, 1867, there can be no doubt that the House of Assem- bly had complete power to adjudi- cate that the respondent had been guilty of a breach of privilege and contempt, and to punish that breach by imprisonment. The contempt complained of was » wilful disobedience to a law .1 order of the House to attend. The authorities summed up in Burdett v. Abbot, It East 1, and followed in the case of the Sheriff of Middlesex, 11 Adol. and Ellis 273, establish beyond all [)ossibility of controversy the right of the House of Commons of the United Kingdom to protect itself against insult and violence by its own pro- cess without appealing to the ordi- nary courts of law, and without having its process interfered with by those courts. The respondent, however, ar- gues that the Act of the provin- cial legislatiire, which undoubtedly creates the jurisdiction and further indemnified members of it against any proceedings for their conduct or votes in the House by the; ordi- nary courts of law, is ultra vires. According to the decisions which have been given by this F'eldisq v. Board, there is now no doubt that J"'?"'**- the provincial legislature could not j^^j.^ confer on it.self the privileges of Halsbury, L.C. th(^ House of Connnons of the United Kingdom, or the power to punish the breach of those privi- • leges l)y imprisonment or conx mittal for contempt without ex- press authority from the imperial legislature. By sec. 1 of 38 & 35) Vict. c. 38., which was substituted for sec. 18 of the British North America Act, 1807, it was enacted that the privileges, immunities, and powers to be held, enjoyed, and exerci3?d by the Dominion House of Commons should be such as should be from time to time defined by the Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, or powers should not confer any privileges, immunities, or powers (exceeding those at the passing of such Act, held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof. There is no similar enactment in the British North America Act, 18G7, relating to the House of Assembly of Nova Scotia, and it was argued therefore that it was not the intention of the Im- periid Parliament to confer such a power on that legislature. But it is to 1)0 observed that the House of Commons of Canada was a legisla- tive body, created for the first time by the British North America Act, and it may have been thought ex- pedient to make express jjrovision for the privileges, immunities, and powers of the body so created, which was not necessary in the case of the existing legislature of Nova Scotia. By sec. 88 [of the B.N.A. Act, 1867] the constitu- tion of the legislature of the province of Nova Scotia was, sub- ject to the provisions of the Act, to continue as it existed at the Union until altered by authority of the Act. It was therefore aa I ! I 1086 POWERS OF PROVINCIAL PARLIAMENTS. FlBLDlNO V. Thomas. .Tudgment. Lord Halsbury, L.C. existing legi.'ec and Ontario Absorb, Dominion not to, Powers of Provinces , ,. Academic Questions and ii Court of Law Access to Tidiil Navigable Eiver Accounts of Colonial Lighthouse Dues Act pviiig Power to Appeal ... Acting by and with Advice of Privy Council Acts of Provinces declared ultra vires ... ... ... ... Additional f'eiiators may be summoned Additions to Act of 1867 made in London Aden, Kigbt of Appeal from ... Adjacent Territories added ... Adjustment of Representation every Ten Years Administration, Letters of, Etcoenition of ... ., of Indian Aflfairs ... ... ,, of Justice „ ,, in the Provinces, and Validity of Commissions „ of Law by the Courts Admiralty Courts, Canada ... Jurisdiction Act ... ,, Local Courts ,, Courts in British Possessions Adrianople, Eight of Appeal from Advances for Repair and Construction of Colonial Lighthouses, ... Advice, Governor-General ought to defer to, of his Minister „ of Ministers, Lieutenant-Governor must act by ... Advocates fti'l Appeal to P. C. Africa, Right of Appeal from Age of Senator Agreement with Canada as to Copyright Agriculture «nJ Immigration Alien »"S«(! AlphalKJtical List „ „ Special reference through a Secretary of State „ „ Wide Diseretion in Committee .. „ under Insolvency Law „ value of Subject Matter, Ontario ,, where Advocate DisUirred ,, whoro Bar suspended from Practising „ where Jury's verdict of wilful murder was set aside ,, where special leave granted, sample of cases ,, where Witnesses discredited ... „ word "Final" „ wrong punishment inflicted AppealaWe amount, Interest added ... „ value, adding costs „ „ amount claimed ... „ „ and construction of Act „ ,, and Taxation „ ,, cases summarized ... „ „ demanded, sum „ „ French .Jurisprudence „ ,, other actions involved „ „ Sec 1009 ct seq. „ ,, sum recovered Application of Colonial Lighthouse dues Appointment of Administrator when Lieutenant-Governor absent or ill „ of Canadian oificors „ of Governor-General „ of Judges ,, of Legislative Council of Quebec... Appropriation Bin find Governor-General ,, in Provinces Arbitration « debts Argument in Governor-General v. Four Provinces, Acts of 1883-4 „ in Liquor Prohibition Case Armed Forces of Canada vested in the Queen Arms, Carriage of, in time of public danger fMff ... 401 ... 436 ... 482 ... 1009 ... 410 ... 333,377,384 Old Appeal as to right to be sum- 57-2 307,400 ... 409 416,417 ... 1041 ... 1009 ... 411 ... 412 ... 80 ... 396 ... 420 ... 420 ... 418 ... 440 ... 424 ... 82 ... 414 424, 433 ... 424 ... 424 ... 424 ... 122 ... 420 405,411,421 ... 434 ... 424 prohibiting sale of Arrest of M.P. ... Arson, appeal from question of Aspect of each case considered Assemblies, Constitution of Nova Scotia and New Brunswick „ Provincial, and Appropriation, Money, Tax, and other Bills ,, Quebec, Constitution of Legislative Assembly, membership and holder of ofiBce of emolument 3z 2 424, 432 ... 992 ... 35 ... 641 3 ... 389 ... 36 ... 26 ... 41 ... 616 ... 145 ... 1044 ... 10 146, 1068 133, 151, 152, 1068 1079 420 161,174 ... 41 41 38 39 I .1 ! i: t:i: ii ' ^i if I ■\ «< 'i I 1092 INDEX. Assembly— ''o'*^. »aoi ,, of Novft Scotia nnil Contempt ... ... ... ... 107H ,. of QiioU'C nnd Coiitcniiit ... ... ... ... ... 30 „ Numnioniiip! of ... ... ... ... ... .i. 38 Assent to BIIIh in ProvineoH ... ... ... ... ... ... 41 Assessment of Piiri.sh for Hallway Compiiiy ... ... ... 120,22.5 Assets, prior claim of Crown to be paid out of ... ... ... 288,292 ,. QiuOiic and Ontario ... ... ... ... ... ... fi32 Assignability of American Copyrifrht ... ... ... ... 877 Assignment and Hankniptey diiTurcniiatcd ... ... ... ... 305 Assignments Act of Ontario, validity of ... ... ... 2i)8, 302 „ for ln'miflt of Croditorn, cffui;t of ... ... ... ... 79 Associations, I.'OChI, Act dealing with . ... ... ... 44,329 ,. Powers of, and I'rovineiid riHht.K ... ... ... ... 40 „ Provincial, Hill crcatinf? ... ... ... ... ... 42 „ with Dominion powers, hut only currying on business in a Province 46, 358 Assurance I'acts in Queen's insurance Company c. Parsons ... 270, 3.J8 Assurer, Tax on ... ... ... ... ... 127 Asylums... ... .•• ... ... ... ••• '24 Athabasca, Inereaso to ... ... ... ... ... ... 654 Attorneys and Appeal to P.C. ... ... ... ... ... 420 KeliefAct ... ... .. ... ... 719,821 Auctioneer License ... ... ... ... ... 52,120 Australia, Jii^ht of Appeal from ... ... ... ... ... 1009 Authority conferred on License Commi.ssioner.s ... ... ... ... 136 ,, External and Legishitivi! ... .. ... ... ... 49 ,, for Local Adniinistrution ... . . ... ... 1, 142 ,, of Governor-General ... ... ... ... ... 8 „ of Governor, Lis Commission ... ... ... ... 10 „ of Government of Canada and Provincial Legislatures ... 1, 294 ,1079 ,, of Lieutenant-Governor ... ... ... ... 33,34 „ Paramount ... ... ... ... ... ... 74 „ Plenary, Ije.stowed on Provincial Legislatui-es .. . ... ... 142 Author's Copyright Ca.se in Canada ... ... ... ... ... 91 Autonomy of each Province ... ... ... ... ... 1,31,294 Azoff, Sea of, .Appeal and Foreign Jurisdiction Act ... ... .. 1014 B Bahamas, night of Appeal from Ballot Paper, Forgery of Bank, Insolvent, and Dominion ,, Notes Taxed by a Municipality ... ,, Trustees appointed by Dominion Act to wind up Banks and Insurance Companies, Tax on „ Capital Taxed by Province ,, Savings Banking ■■■ „ as against Civil Eights „ Power to Legislate for, in Dominion ... „ Provincial Tax on Capital ... Bankruptcy and Act to avoid that result „ and Lisolvency... ,, Law by both Dominion and Legislature ... 1009 ... 107 75, 332 ... 75 75, 332 68, 113 68,75, 113 ... 76 ... 74 ... 3U1 ...66,74 7o, 113 ... 76 75, 78, 330 78, 1043 > ''" 'II' ... 107« ... 30 ... 38 ... 41 120, 22.") 288, 202 ... M2 ... 877 ... .lOfl 2.)8, ,102 ... 70 44, 320 ... 46 ... 42 'riivince 46, 3S8 270, 3.08 ... 127 ... 124 ... 654 ... 420 710,821 52, 126 ... 1000 ... 130 40 1, 1 12 8 10 1,294 ,1070 33, 34 ... 74 ... 142 ... 91 1,31,294 .. 1014 ... 1009 ... 107 75, 332 ... 75 76, 332 68, 113 68,75, 113 ... 76 ... 74 ... 3U1 ...65,74 76, 113 ... 76 75, 78, 330 . 78, 1043 ;ndex. 1093 Bankruptcy— <'''»'^ paob ,, IjIiw of Englnnd exiiminofl ... ... ... ... 70 ,, of .Sc'iiiitor ... ... ... ... ... .,. 15 ,, Old Liiw cxamitK^d ... ... ... ... ... 304 ., Provincinl I.AV on snme Hulijui't ... ... ... ... 303 Baptist .School ... ... ... ... ... ... 348 Barbados, KiRli' "f'^ppoal from ... ... ... ... ... idOO Baronets of Nova .''cotm ... ... ... ... .. ... 5 Barristers and Aiiiiofti to p.c. ... ... ... ... 420 ,, mid Knpli.sli mid French LiiiimiHgi! ... .. ... ... 393 ., or Advociitci, Htrikiiig off tho Roll in Colonics ... ... 414 ,, Refusal of Court to nllow, to Practise ... ... ... 420 Bars of Ontario, Nova Scotiii, and Now Brunswick ,. ... ... 393 Basis of the C'jdcs ... ... ... ... ... ... ... 289 Basntoland ... ... . . . . ... ... loio Batonnier, the, and Provinciiil liar. Precedence... ... ... ... 35 Beacons and Lighthouses ... ... ... ... ... ... 70 Bechuanaland, British, Appeal from... ... ... ... ... 1010 ,, Protoctorato, Aiipcftl from ... ... ... ... 1010 Behring Sea .\ ward Act ... ... ... ... ... ... 910 „ Tribunal, argument before ... ... ... ... 200 Beneficial interest of the Crown in all Lands within Provincial B<'i idarics . . 98 Bengal, Right of Appeal from ... ... ... ... 1010 Benin Rivers, A ppcal from ... ... ... ... ... ... lol4 Berbice .. ... ... ... ... lOio Bermuda, Riglit of Appeal trom ... ... ... ... ... 1010 Lome Convention Copyright Act ... ... ... ... ... 868 Bible, the, and .Schools ... ... ... ... ... :tfll, 364 Bill, Copy of, to lio sent to England ... ... ... ... ... 26 Reserved for Assent, Limit of Time for Di.sallowaiice ... ... 26 Altering Limits of Electoral Divisions, Refjuisitcs ... ... ... 38 Disallowance by Lieutenant-Governor ... ... ... ... 41 Lieutenant-Governor reserving Consent to ... ... ... ... 42 Money, to originate in H. of C. ... ... ... ... ... 25 not a.s.sented to , . . ... ... ... ... ... ... 42 of Appropriation, Money Votes, in tlio Provinces ... ... ... 41 of Exclinngo and Promissory Notes ... ... ... ... 76 of Provinces and Dissent by Oovornor-Ocneral ... ... ... 42 Old Right of Governor Refusing A.ssent to ... ... ... ... 579 Royal Assent to ... ... ... ... ... ... 26 Bombay, Right of Appeal from ... ... ... ... ... 1010 ,, .Suspension of Bar, Appeal ... ... ... ... ... 420 Bonny, Appeal from ... ... ... ... ... ... 1014 Book, Meaning of, in Copyright Act ... ... ... ... ... 847 Books, English Reprint of, in Canada ... ... ...- ... ... 91 ,, how to obtair Copyright in America ... ... ... ... 876 „ Importing i'.ito U.K. ... ... ... ... ... ... 848 Boom in River, and Local Undertaking ■,.. ... ... ... 66 Borneo, Appeal from ... ... ... ... ... .. 1010 Borrowing Monej ... ... ... ... ... ... C9, 123 Boundaries betwcsn Canada ami New Brunswick, GUI Act ... 707, 718 „ of Briiish Columbia, Old Act ... ... ... ... 733 „ of Colonies, Alteration of... ... ... ... ... 1002 Boyd, C, on Provinciil Liquor Question ... ... ... ... 168 Brass, Appeal from ... ... ... ... ... ... ... 1014 Breeding Fish, Frotei;tiou of... ... ... ..• ... ... 73 Brewers' Licenses ... ... ..• ••• ••• «n 52, 63, 127 BH^,^f.«, 1075 „ Repeal of ... ... ... ... ... ... ... 126 „ requiring Power to Enforce .. ... ... ... ... 142 ,, Validity of, in question of Special Leave tu Appeal ... ... 4C3 Cairns, Lord, on Applications for Special Leave to Appeal „ on Prerogative of Crown, followed Calabar, Old, Appeal from ... Canada, Appeal from ,, and English Criminal Law „ and Liiibility for Provincial Debts 431, 441 ... 83 ... 1014 ... 1011 4 ... 626 INDEX. Canada— <'o« I". „ Company Old Acts ... ... „ Federal Government of, meaning of „ Siock, Transfer of, and Stamp Duty „ Temperance Act, scheme of ... II I, and Ontario Act in the same Province » „ and Provincial Act II M 1878, not a Fiscal Law... » „ 1886, scheme of Canadian Act sanctioned by Imperial Act „ Census, when to be taken „ Copyright Act )> ,, Agreement with the Govornmeut I. ,, English Authors' case >> „ Imperial Acts ,, Extradition Act ... ,, H. C. Members, Number of ... „ Judges, List of ,, Liquor Acts „ Naturalization ,, Naturalization Act .. . ,, Pacific Riiilway ,, Pacific Eailway and Mines and Minerals ,, Parliament and Exclusive Powers over Timperanco ,, Kebellion, Lower ... ,, Union, Act of Cape of Good Hope, Right of Appeal from Carnarvon, Earl, on School Question of New lirunswick ... ,, on Governor-General acting on advice of Privy Carrying of Arms, Prohibition of Cases, Printing, denote Catholics and Protestants, old privileges Cattle and Contagious Disease, Eight to legislate on Ceding Territory for Settlement, meaning of Census and Statistics „ of Canada, when to bo taken ... Central Authority, none created „ Government of Canada, meaning of „ Power and Municipal Institutions Certificates of Competency of Master of Ship, &c., grunted in the Certified Copy of Record to bo sent to P.C. Certiorari Appeal ... „ or Prohibition Appeals „ Writ, Chinese License Cession of Livnd for Settlement, &c., meaning of... Ceylon, Right of Appeal from Character of Legislation, true motive of „ in which Lieutenant-Governor reserves Kill Charities. ■• Charter of the Canadas „ of Fort William (Bengal) Charters and Appeals. See lOOd et seq. ,, of Bengal, Bombay, and Madras Cheese and Supply of Milk, Laws of Dominicn and I'rovincis Chief Executor, Officer, or Administrator and Lieutenant-Governor „ Officer of Canada Children, Custody of, Special Leave where concerned 1095 Council PAGE 663, 713 1 ... 812 ... 1044 161, 1042 103, 104, 129 ... 32 1044, 1064 ... 93 7 ... 867 ... 92 ... 91 846 et seq. ... 642 ... 16 ... 396 ... 220 ... 770 ... 764 ... 546 123,519.520 156, 1042 4 1 ... 1011 .. 336 8,9 .. 133 .. 1041 .. 658 .. 133 .. 99 .. 69 7 31,293 ..1,293 .. 150 .. 936 ... 1008 122, 426 ... 405 122, 426 ... 99 ... 1011 ... 134 ... 42 ... 124 397, 566 409, 1010 ... 1010 104, 106 ... 30 7 ... 436 Colonies ;: J ij ; j lirl m I ' I in" 1096 INDKX. PAGB China, Appeal from ... ... ... ... ... ... ... lOU Chinese and Indians Electoral r^rauchise ... ... ... ... 100 „, , Immigration Restriction ... ,. ... ... ... 63 „ Taxation ... ... ... ... ... ... ... 122 Christopher, St., Right of Appeal from ... ... ... ... 1013 Civil Action, Exemption from, of Members of Parliament ... ... ... 1088 ., and Criminal Codes may 1)6 altered ... ... ... ... 4 „ Matters in the Courts ... ... ... ... ... ... 308 „ . , Code of Procedure, Arts. 605, 607, 61 1, 1989, 1994, 2008, ".032, 2086 284, 397 ' „ „ Art. 998... ... ... ... ... ... ... 47 ,, „ of Procedure, object of ... ... ... ... ... 286 „ Courts, old, establishment of ... .. ... ... ... 581 „ List of H.M. in Canada... ... .. ... ... 96,97 ,, Rights and Property ... ... ... ... ... ... 257 „ „ in the Provinces... ... ... ... ... ... 257 ,, „ moaning of, examined ... ... ... ... 62,133,262 ,, Servants' Salary in Canada ... ... ... ... ... 70 Claim of Crown y. Creditor ... ... ... ... ... 284,294 Clashing of Powers discussed ... ... ... ... ... 199 ,, of Provincial Parliament and General Parliament ... ... 61 Clergfy Lands, Final Act ... ... ... ... ... ... C94 Sale of ... .. ... . ... ... 653 „ of Quelle and accustomed Dues ... ... -.. ... 559 „ Reserves old .Vet and Proceeds ... ... ... ... ... 710 ,, „ History of ... ... ... ... ... ... 4 Coasting Trade, in British Possession and Merchant Shipping Act ... ... 1 00 1 Old Act ... ... ... ... ... ... 762 Code of Civil Procedure, Arts. 1124, 1178 ... ... ... 397, 434 „ of Procedure, Art. 1178 ... ... ... ... 397,421 „ ofQuebec ... ... ... ... ... .. ... 244 Codes, Conflict between ... ... ... .. ... ... 291 „ ,, and Special Leave to Appeal . . ... ... ... 428 Co-ezisting Powers ... ... .. ... ... 60,120 Coinage ■■• ... ... ... ... ... ••• ••• 74 Coleridge, sir J. T., on right of P.C. in all cases Criirinal and Civil to allow Appeal ... ... ... ... ... ... ... 418 Collection of Consolidated Revenue Fund, Expenses of Collection ... ... 485 Colonial Acts and interference by Imperial Parliament ... ... ... 61 „ ,, ratified by Queen, force of ... ... ... ... 410 „ Advocates and Appeal to P.C... ... ... ... ... 420 ,, Appeals and Prerogative ... ... ... ... 411,1009 ,, „ Special Court contemplated ... ... ... ... 405 ,, Building and Investment Association v. Att.-Oen. ofQuebec 234, 268 „ Court Sentences ... ... ... ... ... ... 820 „ Doctors practising in England ... ... ... ... 884 ,, Governor's Commission ... ... ... ... ... 10 „ „ Pensions... ... ... ... ... 801,887 „ Laws ... ... ... ... ... , . 409 „ „ Validity of ... ... .. ... ... ... 738 ,, Legislature and exclusive and ancient Powers of H. C. England ... 12 „ „ Definition of ... ... ... ... ... 741 „ ,, and Rights of English Authors ... ... ... 94 „ Lighthouses ... ... ... ... ... ... 713 „ Mints, old Act ... .. ... ... ... ... 743 „ Possession and Prerogative of Queen ... ... ... ... 31 Colonies, Admission of Now, into Union ... ... ... ... 646 . INDEX. 1097 PAOR ... 1011 ... 100 ... 63 ... 122 ... 1013 ... 1088 4 ... 308 !, 2086 284, 397 47 ... 286 ... 581 96,97 257 257 ... 62, 133, 262 70 284,294 ... 199 ;.. 51 ... G94 ... 653 ... 559 710 4 ... 1001 ... 762 397,434 397,421 ... 244 ... 291 ... 428 60, 120 74 md Civil to ... 418 ... 485 ... 51 ... 410 ... 420 411, 1009 ... 405 234, 258 ... 820 ... 884 ... 10 801, 887 . . 409 ... 738 ... 12 ... 741 ... 94 ... 713 ... 743 ... 31 ... 646 )ec igland Colonist, Appeal by, to British Parliament Coming within sec. 91, what to prove Commander in Chief, the Queen Commerce and Navigation ... Regulation of, in U.S. Regulation of, "Warehouse receipts ... Retail Sales and Trade considered ,, and Incorporation of Companies ,, Regulation with Indian Tribes Commercial Corporations and Provincial Taxation ,, Law in Canada ... „ System of U.S., what it has been employed for Commission Governor's Authority Commissioner, Appointment of Commissioners of the P.C. and instructions to Governors Commissions of inquiry appointed by Quebec Assembly ... „ of Oyer and Terminer, and the Prerogative ... Committal for Contempt, Power of Parliament Committee, Judicial, and Election Petitions, hefiring Committees appointed by Quebec Legislature ... Common Defence of the Empire, Contribution from Canada „ Interest of each Province „ School Acts of New Brunswick „ „ ». Epitome of „ Socage Commons of Canada, how summoned ... „ Canada, Act to put an end to certain Proceedings Community of Goods, Husband and Wife Companies, incorporation of, and Trade and Commerce ... „ „ by Provinces „ with Provincial Objects ... Company, Canadian Act giving Power to summarily dispose of Right to Shi „ Incorporated by Dominion, Acting in one Province only ... ,, Wound up in Canada, Incorporated by Imperial Statute ... Comparison of sees. 17 and 68 Competency and Validity of Dominion Act „ of Parliament to Legislate on Trial of Election Petitions ,, of Provinces, exclusive Powerf! Composition of Legislative Council of Quebec ... ComptaWeS, meaning of Concealment of Facts on Appeal Conception Bay, Right to ... Concurrent Judgments on Facts and Appeal ... „ Legislation as to Criminal Laws „ Powers in Dominion and Provinces ,, „ in Provinces as to Taxation,.. Conditional Fi^ohibition Conditions, Appeal allowed on Confederation and Opinion of Statesmen „ Anti, Ontario... ,., „ EiFect on connection between Crown and Provinces... , _ ,,,,( , Laws before ... ,.,„ , of Canada and U.S. compared ... ... ... 60, ,,,1, ., to be viewed as a Treaty ... , .... .„ 165, 426, 427, 429, 434, FAOB ■ ■• 29 ... 43 ... 10 ... 691 68, 160 76, 295 ... 166 ... 151 2 ... 51 ... 62 ... 6i ... 181 ... 62 ... 10 ... 391 ... 1006 ... 36 ... 33 ... 12 40, 311 ... 36 590, 591 1 ... 334 ... 342 ... 661 17,28 ... 91 ... 257 2 45, 234 2 irus 91 ... 45 ... 87 ... U ... '.9 18,20 44, 1042 ... 36 ... 289 ... 430 ... 74 438,439 106, 156 166, 389 ... 63 ... 156 436, 461 ... 168 ... 56 ... 31 .., 73 119, 173 ... 168 1. I 1098 INDEX. PAQB Conflict lietwcen Provincial and Dominion interests ,,, ... ... 42 „ of Laws of Quebec and other Provinces ... ... 31, 293 „ of Legislation ... ... ... ... ... 48,1042 „ of Laws or Codes ... ... ... ... ... ... 428 „ of Laws ... ... ... ... 46,1042 „ to prevent, Act took a certain form ... ... ... ... 64 Congress and states compared with Dominion and Provinces ... 119,173 ,, Power of U.S. ... ... ... ... ... ... 69 „ ,, as against Powers of States ... ... ... 61 Connection between Crown and Provinces ... ... ... ... 31 Conquest of Quebec ... ... ... ... ... 4 Consents requisite to Provincial Railway crossing a Dominion Kailway ... 233 Conservation of Fish, inland and Sea, by Dominion Parliament ... ... 73 Consolidated Fund of Canada ... ... ... ... 483 Consolidation of Quebec and Ontario... ... ... ... ... 4 Constantinople, -Appeal from. Sec Turkey ... ... ... ... 1013 Constituted Authority for Local Administration ... ... ... 1,27 Constitution of Canada compared with Constitution of the U.K. ... ... 27 „ „ similar to U.K. ... ... ... 1,294 „ of a Province, power to alter ... ... ... 100,1086 „ of Offence, keeping open and selling ... ... ... 125 „ of Legislative Assembly... ... ... ... ... 38 „ of Parliament of Canada ... ... ... ... 11 „ of States of U.S. and Provinces of Canada ... ... ... 61 „ Power to Amend that of Provinces ... ... ... Ill „ Provincial, meaning of, examined ... ... ... ... 27 „ Suspended ... ... ... ... ... ... 4 Constitutional Charter of the Canadas ... ... ... ... 566 „ Functions and Dominion Powers ... ... ... 1 „ Law ... ... ... ... ... ... 1042 „ ,, of U.S. and Canada just the reverse ... 61,118 „ Questions and Appeals to P.C. ... ... .. ... 406 . „ Question lapsing ... ... ... ... ... 308 „ Rightof Lieutenant-Governor to dismiss Minister ... ... 29 Construction of an Imperial Act, Special Leave granted ... ... ... 452 ,, of ss. 91, 92, Principle of, pointed out in Parsons' Case ... 131 Consular Court and Treaty Rights ... ... ... ... ..1031 „ Courts, Appeal from ... ... ... ... ... 1011 Contempt, Committing for. Power of Local Parliament ... ... ... 1079 of Court, Appeal to P.C. ... ... ... ... 414,420 „ of Parliament ... ... ... ... ... 36,1079 „ „ Quebec ... ... ... ... ... 36 Continuance of Legislatures of Nova Scotia and New Brunswick ... ... 31 Contracts, all Legislation as to, not in the Dominion ... ... ...76,77 Contrast between English H.C. and Quebec Assembly ... ... ... 36 Controversies between Dominion and Provinces, Appeal to P.C. ... 400, 401 Controverted Election Petitions and Dominion ... ... 46,308 Convention as to Naturalization with U.S. ... ... .,. ... 802 Con'^eyance of offender on High Seas to British Possession ... ... 994 Conviction in Hodge's Case ... .. ... ... ... ... 136 Co-ordinate Authority of Dominion and Provinces ... ... ... 31 Copies of Printed Cases to be lodged. iS«« note ... ... ... 1041 Copyright 9i „ International ... ... ... ... ... ... 868 „ Burton, J., on ... ... ... ... ... ... 92 '•■ „ English, extended to every part of H.M. PosseMions ... .,. 94 ! INDE^. 1099 FAQE ... 42 31, 293 48, 1042 ... 428 46, 1042 ... 64 119,173 ... 69 ... 61 ... 31 4 ... 233 ... 73 ... 483 4 ... 1013 ... 1,27 ... 27 1,294 100, 1086 ... 125 ... 38 ... 11 ... 61 ... Ill ... 27 4 ... 566 1 ... 1042 61,118 ... 405 ... 308 ... 29 ... 452 ... 131 .. 1031 ... 1011 ... 1079 414, 420 36, 1079 ... 36 ... 31 ...76,77 ... 36 400, 401 45, 308 ... 802 ... 994 ... 136 ... 31 ... 1041 ... 91 94 Copyright— co«'. ,, in America „ in Canada, Fees ... ,, I, Interim Old Acts Coreai Appeal from... Corporation, Ontario and Quelle Taxes „ and Direct Taxation „ Commercial, and Provincial Taxation Corrupt Practices and hearing Election Petitions Costs, Appealable Value, Costs not to l)e added ... I, ,, ,, Interest on Damages may bo ,, Deposit, Appeal becoming abortive from not lodging ,, Irregular Appeal „ Security for, ordered by P. C. ,, when mis-statement, concealment, or inaccuracy in facts Council, Old, for Quebec „ to aid ond advise Councillor of Quebec, Vacancy in place of „ ,, Qualifications of Counsel, Queen's, Appointment of ,, selection of Judges from cacli Bar ,, to argue Special Keference Cases Court below and P.O. Appeal... „ Created without the incidence of Appeal to the Queen ,, Established in Canada by Imperial Authority, Dominion conferring Jurisdiction on ... „ Martial in the Colonies „ of Appeal, Canada „ of Record, New, what necessary to Croute... „ „ Parliament as „ Supreme, Established .. „ to Decide Constitutional Questions Courts, Civil and Criminal, Old „ Dominion Parliament and Uniformity of Laws ... „ Generally ... „ in Canada ... „ New Jurisdiction Committed to ,, of Admiralty in the Colonics ... „ Organization of ,, Prize, Establishment of Creating Municipalities Credit, Power of Province to Borrow Money on Creditor, Crown as... „ and Provincial Bankruptcy Law „ Provincial Government as ... „ Bight of ... Crime and Power of Dominion Crimes Commit*«d at Sea „ List of, in Extradition Act Criminal Case, Postponement of Execution of Convict Appellant , „ ,, and Judicial Committee ,, Jurisdiction in the Province, ,. „ Law „ „ and insult to House of Assembly „ ' ' „ and Liquor Laws ... ... ... „ • ,, and Ontario Licenses ... ... ... FAGB 875 867 860 .. 846, 872, 873 1011 ... 122 ... 116 54, 113 40,311 ... 424 424 462 423 122 f.. ... 430 662 8 37 37 36 ... 393 ... 401 426 311 Parliament 68 826 394 21 1079 3, 394 ... 406 637 ... 388 395 et scq 396 ... 20 ... 888 ... 308 ... 926 ... 142 123 284, 294 302 31, 294 ... 78 106 778 782 ... 416 34 308 M 102 1079, 1087 1«1 104 ^ i 'I i| liiiiiliiiiiiiiiii 1100 .INDEX. Criminal lAV'-eont, n , „ and Power of Dominion „ ., and Sale of Gunpowder „ ,, and Trial of Prisoners in Canada (I ,, by Dominion and Provinces ,,,.. ., in Canada and England „ ., in «ec. 91 means General Public Criminal Law I, ,, of England in Canada... I, ,, of England to be in force, old Act „ „ Provincial, Canadian Temperance Act not within sec. 15. s. 92 „ Suit, Appeal to P.C., Lord Brougham ,, Trial in Canada, and Dom, Act Croftera Loan to British Columbia Cross Appeal, allowed to lie presentefl ... Crown and Dominion Eight to Fish in Harbours „ and Liability for seizing Railway ,, Cases in Canada ,, Preference of, in Bankruptcy ... „ and Preference Payment ,, and Provinces, Confederation did not sever Connection „ can Recall any Governor who fails in his duty „ Lands in New Brunswick Crown's Prerogative Power to hear Election Petition „ Prerogative and Commissions of Oyer and Terminer „ Prerogative Examined Currency... Custom Duty and Direct Taxation Customs and Dominion Excise „ and Vice-Admiralty Courts ... Cyprus, Appeal from ... ... PAGg 62 ,102 104 ... 547 33, 1087 .. 12 ... 106 ... 4 all 661 134 ... 409 ... 4a ... 906 ... 4.52 ... 73 ... 496 ... 395 288 ,292 31 ,292 ... 31 . . 29 ... 72 ... 308 ... 33 309 409 74 ... 116 ... !>3S ... 69 ... 1011 D Damage, Quantum of. Judicial Committee may fix ... ... 440,497 Dangerous Establishments, power in Province to Regulate by Law ... 104 ,, to Public, example ... ... ... ... ... 133 Dardanelles, Appeal from, through Consular Court ... ... ... 1014 Debt, Action of, against Governor ... ... ... ... ... 10 of New Brunswick ... ... ... ... ... ... 533 of Nova Scotia ... ... ... ... ... ... 533 of Ontario and Quebec ... ... ... ... ... ... 632 Public, and Property .. ... ... ... ... ... 5I of Canada ... ... ... ... ... ... .. 483 of Provinces and Assets ... ... ... .., 526 „ Interest on ... ... ... ,. .. 485 Debtor and Assignment for Benefit of Creditor ... ... ., -9,302 Decision of the House of Lords on a Colonial Question ... ,,, ... 346 Declaration of Union ... ... ... ... ... ... 3 „ of Qualification of Senator ... ... ... ... 13 Defence of the Country, Dominion's Right to take Land ... ... ... 533 Definition, Mill's, Examined... ... ... ... ... ... 116 „. of Privilege*, Powers, and Immunities of Senato, and Members of Pailiament of Canada and Provincial ParliamentB 1 1, 1079 Delegates, High Court of ... ... ... ,„ ... ,..1005 „, , FrovincisI Legislatures not ... ... ,„ ... 143 -"?=iTP n INDEX. 1101 PAGE 62, 102 ... 104 ... 547 33, 1087 .. 12 ... 108 4 ... 661 within sub- ... 134 ... 409 ... 45 ... 900 ... 4,52 ... 73 ... 496 ... 395 288, 292 31, 292 ... 31 . . 29 ... 72 ... 308 ... 33 309, 409 ... 74 ... 116 ... 535 ... 69 ... 1011 440, 497 ... 104 ... 133 ... 1014 ... 10 ... 533 ... 533 ... 532 ... 51 ., 483 „ 526 .. 485 ■,:9, 302 ... 341) iia ••• 13 ... 533 ... 116 and Members nentB 11, 1079 ... 1005 ■ftft ••• "• Law noil 103, 131, 142, 1042 357 332 341 374 ... 338 ... 31,283,292 9 Dolegjation. of Canadian Parliament's Powers ... DenOQlinational Hights and Education „ Schools ., „ in Canada ... „ „ in Manitoba „ „ in Now Brunswick Depositor, Crown as, Payment of Deputy Grovernor, Appointment of „ „ General, constituting Courts ... „ ,, „ and Governor-General, Exorcise of Power always can be by the latter „ Speaker of Parliament of Canada „ Lieutenant-Governor Derivatioa of Authority of Provincial Legislatures „ of Governor's Authority ... Derogation from Rights require express words... Desertion and Divorce Destroying Municipalities ... Destruction of Fish, undue ... Detention of Ship under Behring Sea Award ... Diplomas, Medical, Colonial... Direct and Indirect Taxation... „ Tax, meaning of „ „ Person first Charged with it to pay it ,, Taxation ,, ,, Dominion and Provinces „ „ and Corporations „ ,, in both Dominion and Provinces Directions for Printing Appeal Cases. /Sec note Disallowance of Acts, Ritchie, C.J., on the Power of of Bills ... „ of Provincial Acts ,, „ „ should be exercised with caution Disbarring Advocate, Appeal Discovery, Patents of Invention and ... Discretion of Governor-General in Assent to Bills Discrimination in impo.sit ion of Taxes Discussion as to Powers of Lieutenant-Governor and Governor-General ,, as to Qualification or Vacancy to bo heard by Senate ... Dismissal of Lieutenant-Governor by Governor-General ... „ of Ministry by Lieutenant-Governor... Disqualification of Senator Dissentient Schools Distinction between Dominion and Provincial Powers ,, „ Limitation and Prohibition „ ,, Property in, and Regulation of Distressed Seamen, Relief of Distribution of Powers between Provinces and Dominion ,, of Legislative Powers ... District not prepared to absolutely Prohibit Division of Canada... Divorce Appeals, Leave to Appeal „ from Husband for Accusation of a Capital Crime „ in Canada... „ in Manitoba „ in New Brunswick ... ... ... ... ... 34 10 ... 1003 ... 35 1 ... 10 ... 74 ... 250 ... 142 ... 73 ... 925 ... 884 ... 67 ... 114 127, 129 113, 119 ... 48 ... 116 ... 53 ... 1041 ... 63 ... 41 8, 9, 26 ... 51 ... 420 ... 88 ... 26 ... 122 9 16 28,29 ... 28 ... 16 ... 333 ... 72 ... 149 ... 72 ... 942 1,292 .. 43 149, 1042 3 ... 416 ... 260 ... 101 ... 250 ... 261 I 1^ I J I \ ' -i r 1 : , ! i ! ( \- t\ 8 j i II Ij H > pi i ¥■ II I I i ■ r iilm ill 1 1103 INDEX. BiVOrCB—cont. TAOE in North-Wt'st Territories .., ... ... ... ,,, 250 in Nova Scotia ... ... ... ... ... ... 2a0 in Prince Edward Islnnd ... ... ... ... ... 252 in Quebec ... ... ... ... ... ... ... 250 Special Leave ... ... ... ... ... ... 431 Docks, Loan to Construct, Act ... ... ... ... ... 743 Doctors, English, Practising in Canada ... ... ... ... 420 Documents, usu of Old Namos of Upper and Lower Canada in ... ... 644 Doherty, Jm on Prohil)itinpt Liquor Laws ... ... ... ... 204 Doleance Petitions... ... ... ... ... ... ... 408 Domicile for Divorce, &c. ... .. ... ... ... 253,257,447 Dominica, Eight of Appeal from ... ... ... ... ... 1011 Dominion Act, additions made in London ... ... ... ... 186 „ ,, and Provincial Act to give effect to it ... ... ... 65 „ „ „ „ Adaptation ... ... ... ... 124 „ „ authorising Company to Purchase Island .. . ... ... 307 „ „ conferring Jurisdiction on Imperial Vice-Admiralty Court. ... 894 „ „ Disallowance of ... ... ... ... ... 9 „ „ for one Province ... ... .. ... ... 242 „ „ for two Provinces, Alteration of... ... ... 273,328 „ „ making Decisions in Q.B. Quebec final ... ... ... 81 „ „ Object of ... ... ... ... ... 31,292 „ „ of Union ... ... ... ... ... ... 1 „ „ Preliminary ... ... ... ... ... ... 2 „ ,, Provisions as to Queen... ... ... ... ... 2 „ „ Validity of ... ... ... ... ... ... 300 „ and Crown Lands... ... ... ... ... ... 97 „ „ General Power ... ... ... ... ... 2 „ „ Incorporation of Companies ... ... ... ... 2 „ „ Insolvent Bank ... ... ... ... ... 332 „ „ Lieutenant-Governor ... ... ... ... ... 42 „ „ Legislation as to Perjury ... ... ... ... 107 „ „ ,, on Marriage Licenses ... ... ... 256 „ „ Naturalization ... ... ... ... ... 770 „ ,, Penalties and Foifciiures Legislation ... ... ... 107 „ „ Postiil Service, Railways, National Defences ... ... 486 „■ „ Provinces and Raising Money ... ... ... ... 48 „ „ ,, Distribution of all Powers between ... ... 43 „ „ Provincial Acts ... ... . . ... ... 258 „ „ „ Bankruptcy Law ... ... ... ... 302 „ „ „ Double Legislation ... ... ., ... 50 „ „ ,, Laws as to Frauds in supplying Milk ... ... 106 „ ,, ,, Powers under sees. 13-92 ... ... ... 46 „ „ „ Power of making Criminal Laws compared ... 33 „ „ „ Rights 494 „ „ Remedial Education Acts ... ... ... ... 334 „ „ Sale of Gunpowder ... ... ... ... ... 104 „ „ Tax in Provinces ... ... ... ... ... 155 „■ Bank Notes, Taxed by a Municipality ... ... ... 75 „ Bankruptcy Act overriding Provincial ... ... ... 78 ,, Companies and Provincial Laws ... ... ... ... 235 „ can deal generally with the whole matter ... ... ... 147 „ can declare anything a Crime ... ... ... ... lOo „ Company, Validity of, and Questions to be raised ... ... 40 „ enacting that Decrees of Courts should be final ... ... 308 „ Excluded from Provincial Powers ... ... ... „, 152 rAOE ... 250 ... 250 ... 252 ... 250 ... 131 ... 743 ... 420 ... 644 ... 204 ... 408 253, 257, 447 ... 1011 ... 186 ... 65 ... 124 ... 307 ... 894 9 ... 242 273, 328 ... 81 31,292 1 ty Court. ipared 2 2 300 97 2 2 332 42 107 256 770 107 486 48 43 258 302 60 106 46 , 33 494 . 334 . 104 . lao . 7o . 78 . 235 . 147 . 105 .. 46 .. 308 .. 152 INDEX. Dominion — "ont. „ Ezclugive Authority of „ extending Jurisdiction of a Court „ first Occupying the Ground „ first Provinces forming „ Government and Provincial Acts of Prohibition „ House of Commons, Members of „ Hudson Bay Territory added „ in 1896 ... „ Insolvency Law ... „ Laws overriding Provincial Laws „ Law for one Province „ Law must bo General Law ... „ Legislation and Fish „ „ and all Contracts re Bills of Exehniige „ „ and Property ... „ „ and Provincial Tax on Capital of Banks „ „ as compared with Provincial „ „ overlapping „ „ Value of, in Interpreting Act of 1867 „ „ and Fines „ Licensing Acts, 1883-4 „ License for Carrj . ig Gun ... „ Parliament and Mining Companies in two Provinces „ „ and Power to Alter its Constitution „ ,, and use of French and English Language Legislation and Property 1103 PAOB ... 44 ... 312 ... 147 3 58, 1042 ... 16 3 3 ... 78 ... 1042 ... 1042 166, 1042 73 ... 76 ... 73 ... 75 131, 132 ... 210 2 ... 107 145, 158 ... 146 ... Ill ... Ill .. 542 ... 99 passing Laws overriding and inconsistent with Provincial Laws 148, 1042 Phrase " Property of" or " belong to " explained ... ... 97 Power for Constitutional Functions ... ... ... ... 1 „ to Enact General Nuisance Law ... ... ... 104 „ to Prohibit Sale of Intoxicating Liquors ... .. 161 not to Absorb Provincial Powers ... ... ... ... 48 Object of ... ... ... ... ... ... 150 Objects, how accomplished ... ... ... ... 1,292 Officers and Taxation .. ... ... ... ... 70 Officials and Provincial Tax ... ... ... ... 123 passing Law and Local Association ... ... ... ... 45 Parliament Act putting an end to all Proceedings in certain Cases 91 „ Address re Imperial Legislation ... ... ... 336 „ and Insolvent Hank ... ... ... ... 75 „ and Queen's Prerogative ... ... ... ... 82 „ and Uniformity of Laws ... ... ... ... 388 „ and AVarehouse Receipts ... .. ... 75,296 „ and Western Provinces Fishing ... ... ... 74 „ has full Control over the Election of Members 18, 19 „ Imposing now Duties on Existing Provincial Courts ... 20 „ Paramount ... ... ... ... 74,301 „ Powers of . . ... ... ... U, 822 „ no Exclusive Legislation over Temperance ... ... 166 Penal Laws ... ... ... ... ... ... 322 and Provinces and Co-ordinate Authority ... ... ... 31 Railways and Provincial Railways ... ... ... ... 233 Repeal of Provincial Act ... ... ... ... 1043,1070 Supreme Court Act Reviewed ... ... ... ... 19 to decide how far a Trade maybe Suppressed ... ... ... 193 Trenching on Matters assigned to Provinces ... ... 44,1043 III |i I 1104 INDEX. Dominion— con^ paob „ Winding-up Act Examined.,. ... ... ... ... 321 DonationB l)<*fore Birth of Children ... ... ... ... ... 257 Double I^giilutiun .. . ... ... ... ... ... ... 60 „ Licenses ... ... ... ... ... ... ... 221 „ „ Provi.sion for ... ... ... ... ... 146 „ Offences ... ... ... ... .. ... ... 161 Doubt Entertained of Soundness of Doeision Appealed from, and Special Leave ... ... ... ... ••. ... ... 22 r)r.lgS, f'lilfi of. considered ... ... ... ... . ... 133 Dues for Colonial Lighthouses ... ... .. ... ... 992 „ Lumber, New Brunswick ... ... ... ... ... 535 Duflforin, Ijord, on Parliaments ... ... ... ... ... 30 Duration of House of Commons ... ... ... ... ... 23 „ of Legislative Assembly ... ... ... ... ... 39 Duties ar"! Kevenues ... ... ... ... ... 483,484 „ Levied in Newfoundland, Old Act ... ... ... ... 654 ,, New, Imposed on E.\isting Courts by Dominion Parliament ... ... 20 Duty of Rxceutivo and Bills ... ... ... ... ... ... 42 „ of Governor Genernl and Assent to Bills ... ... ... ... 26 ,, „ ,, as Head of a Constitutional State ... ... 30 „ „ „ in all Cases to Protect Imperial Policy ... ... 42 „ of Judges ... ... ... ... ... ... ... 390 „ of Judicial Committee on Advising Special Leave ... ... ... 443 „ „ ,, to Grant Leave if a Doubt of Soundness of the Decision Appealed from ... ... ... ... ... 22 „ of Lower Court on Leave to Appeal being Granted ... ... ... 1008 ,, oflVtinistry ... ... ... ... ... ... ... 42 ,, of Minister, when duties are Executive merely ... ... ... 89 E Early Cases in P.C. ... ... ... ... ... ... 1006 East Florida, Appeal from ... ... ... ... ... ... 95 „ Indies, Right of Appeal from. &e Bengal ... ... ... 1010 Edicts, French, of 1743, Examined ... ... ... ... ... 246 Education 332 and Sectarian majority ... ... .. ... 363,364 „ Manitoba School cases ... ... ... ... 371-376 in Prince Edward Island ... ... ... ... ... 338 „ Laws prior to Union ... ... ... . ., 365 „ Questions and Appeal ... ... ... ... ... 406 EflTect of Canadian Temperance Act ... ... ... ... ... 130 Ejrypt, Appeal from ... ... ... . . ... ... 1011 Election and Corrupt Practices, and Hearing in P.C. ... ... ... 40 ,, Courts ... ... ... ... ... ... 312 et seq. ,, First, of Ontario, Quebec, and Nova Scotia Assemblies ... 22,41 of Holders of Office... ... ... ... ... ... 38 „ of Speaker of Legislative Assembly, and ofll.C. Canada on same lines 40 „ Petitions and Leave to Appeal ... ... 45,314,414,449 „ „ and Prerogative of the Crown ... 40,314,408,449 Elective Legislature constituted Electoral District of New Brunswick ... „ Divisions, ,. „ Law to apply, until altered by Dominion, to Election of M.P. or M.H.C. „ Limits, Bill altering, requisites SleemoBynary £^stabiishmentB 16 18 548 18 39 124 •Special I'AdB 321 257 60 221 146 161 22 ... 133 ... 902 ... 535 ... 30 ... 23 ... 39 483, 484 ... 654 ... 20 ... 42 ... 26 ... 30 ... 42 ... 390 ... 443 of the 22 1008 42 89 ... 1006 ... 95 ... 1010 ... 246 ... 332 363, 364 371-376 ... 338 .. 365 ... 405 ... 130 ... 1011 ... 40 S\2 et seq. 22,41 ... 38 me lines 40 il4, 414, 449 !14, 408, 449 16 18 548 18 39 124 :M.H.C, INDEX. 1106 499 Ellice Inland Emolnmeilt, Office of, and Mcrabomhip of AssomWy Empire, Ifnity of, List Encroachment i^y Dominion Enforcing Licence whtre no Penalty ... „ Temperance Act, 2nd Part... English and Foreign LangimgoH „ bankruptcy Acts Examined ... ,, Companies in Canada, Winding up ,, Copyright in Canada ,, Criminal Law obtains in Canadiv ... ... ... „ Liquidation in Canada Enlistment Act, Foreign EnOB, Appeal from ... Enumerated Powers, Provinces Error, Court of (Ontario) Escheats... „ and sec. 102 „ and Provincial Rights Establishment of Now Province „ of Supremo Court (C.) Evidence, Dominion Act „ same in two Actions, Appeal Evil Existing in Society, can bo inquired into by Quebec Li'gislaturo ,, growing into National Danger ... Examination of Powers by Strong, C.J. „ of Witnesses on Oath by Assembly Exemption of M.P.'8 from Civil Actions for Votes Excepted Classes Clause Exception from Legislation of House of Commons Exchequer Court, Canada ... Excise and Customs are Indirect Taxes „ and Provincial Taxes ... „ Laws ... ,, „ and Provincial Legislation Exclusion of Parliament of Canada ... Exclusive and Ancient Powers of H.C. of England not in Provincial Parliaments \2 „ Authority of Parliament, meaning of ... ... ... 155 „ Legislative Authority of Parliament Examined ... ... 44 „ Legislative Authority of Dominion ... ... ... ... 66 ,, Powers of Provincial Legislatures ... ... ... 44,109 " Exclusively," Word Examined ... ... ... 67,199,1043 Execution Pending Appeal ... ... ... .. ... ... 438 Executive Authority of Quebec, Ontario, Nova Scotia, and New Brunswick 27-31 „ „ possessed by Lieutenant-Governors... ... ... 9 „ Council... ... ... ... ... ... ... 34 ,, „ and holding office of Emolument ... ... ...38,39 „ „ of Quebec ... ... ... ... ... 30 „ „ of Ontario ... ... ... ... ... 30 ,, Duty, gives no Authority to Prohibit ... ... ... 89 „ Government, Seats of ... ... ... ... ... 35 „ Officers, Duties and Powers of ... ... ... ... 643 „ Power ... ... .. ... ... ... ... 7 „ Power of each Province ... ... ... ... ... 27 Exhibits in Court, Tax on ... ... ... ... ... ... 32 Existing Courts and New Duties .. ... ... ... ... 20 8 3340. 4 A I'ACIK .. 1014 .. 38 4 .. 1043 .. 127 .. 130 .. 642 79, 306 ,. 87 ,. 91 4 .. 88 .. 780 .. 1014 .. 109 .. 400 .. 08 .. 484 613 3 304 60 457 36 1044 166 36 1088 108 43 396 115 67 636 64 72 f^f I 1 1 Ilii 'I A i \m 1106 INDEX. Existing r^iw Expatriation of the Fronoh in Arcndift ,, of Soniitor Expenses "f rnllwtiiig ronHoliduttd Itovemie I'lind ExplOSiV ''^'i'«t'"ifi'H Sftlo cijiiKidiTod .. Export ty on Ijinib(!r, 1111(1 Tniity with U.S. ... Exportation from Provinpcs Express WordH nuiuin^d to tiik<; iiwiiy Qtiui'ii's I'rcroRntivo "Extend 'K'yond tho liinitH of tlui Provinrp," Examined ... Extent of ExclnHivu Autliority of Parliiimont ... External .'\utliority putting Law in force Extinction of a Trade, Effect of Extra Tax imposed for Delay Extradition of rriminaiH ... I'AflK ... .■»;:" ... 1.) .. iNr, ... KK! i)3'), SOS .. r,:h') .. 82 ... 'J'.;; II I!) ... I!M .. 1'2(; ... 774 F Facts, and appealing to P.C — „ in Hodge's Case „ in RuBBell's Case „ mis-statements on appeal " Fair Trial," Earl Selborne on Falkland Islands, Right of Appeal from False Statement, Punishment for Federal Authority and Municipal Institutions ... „ Government described „ „ meaning of „ „ and Provincial Judicature ... „ Parliament and Divorce, Jurisdiction over „ Power and Liquor Traffic ,, Purposes and Navigation „ Unity, Act of Fees for Canadian Copyright... „ in Colonial Admiralty Courts Felonies, Appeal in... Felony of Senator ... Ferries ••• Fief and Seignory Lands may be charged to Common Socage tenure Field not occupied, phrase Fiji, Eight of Appeal from FillinST Vaciuicy in place of Councillor of Quebec Final decision as to Patentji in Canada... „ is an apt word to exclude certain appeals ... ,, Judgments, Appeal Finality of P.C. Judgments ... Finance Act, Exception of Property „ Provincial Assembly Money Bills Fine and Imprisonment, where given to Provincial Parliament ,, and Dominion Legislation „ for breach of Liquor Laws Fining a Barrister, Appeal ... „ Judges Fire Insurance Companies First PTl'iraent of Dominion „ Provinces forming Dominion „ step to be taken in deciding subject-matter falls within sub-sections 425, 438 ... llifi ... 129 ... 4.30 ... 47 ... 1011 ... 107 ... l.iO ... 31 I ... 323 36. 2fi0 ... 107 fiO 1 ... 806 ... 899 .. 409 ... 15 ... 74 624, O.'iO , . inc. ... 1011 ... 3- ... 89 ... 82 ... 421 12, 468 ... 926 ... 41 ... l')5 107, 324 ... 102 ... 414 ... 394 66, 259 3 •\ of 92 262 T INOFX 1107 PAflR ... '):','! ... .1 ... 15 .. m ... \:n 635, nm „ liU ... 82 ... 227 ... It . . tn ... mi ... 12B ... 774 42fi, 438 ... i;io ... 129 ... 4.30 ... 47 ... 1011 ... 107 ... l.iO ... .31 1 ... 323 30, 250 ... 197 fid 1 ... 8G6 ... 899 .. 409 15 ... 74 024, OoO . 100 ... 1011 ... ;t7 ... 89 ... 82 ... 421 12, 408 ... 920 ... 41 ... l')5 107, 324 ... 102 ... 414 ... 394 65, 259 3 •\ 0D8 of 92 262 Fiscal I-iiw, Ciinadiiui Tumponincc Act net Fish, (^'l"i(i 'i'imo !.<>^iNlati<)M ill |iiiiiiitiii>ii ... ,., ,, in I'lililic lliii'lioiir'*, I'rotcctiuii of Fisher, •'•. "" .'^I'lmolM (iuchtion of Nnw Hriinswick „ (III tliu riiioii Fisheries and Provincial I^igiHlation ... ,, Inland ... ... ... ... „ I'otieo KoguIationN... ,, TroHpiiHS ... Fishing by Indiann, Regulation of Treaty with U.S. ... Florida, Kant and Went, in Oanaila Old rrovincos Force "f IJilla roHorvi'd for Uoyal AHBont Foreign CompanicH in Canada, winding up ,, Country and Printing English Books ... „ „ and Treaties ,, Corporations and Provincial Laws „ Enlistment Act „ Jurisdiction Act Actions, Limitation of Amends, Tender of ... China and .Japan, coast of Costs Death .Sentences Definitions ... ... ... Evidence may be tendered by accused Examination uf Witnesses Extent of Jurisdiction, ascertaining Foreign Law and British Court Indian Princes and subjects thereof Jurisdiction over Ships in Eastern Seas . Jurisdiction in a Foreign Country Limitation of Actions... Parliament and 0. Jn C. Power to send Person for Trial Protection of Persons acting under Act , Punishment of I'ersons convicted Repealed Acts Ilepugnant 0. in C. ... Revoking 0. in C. Sea Limit, China and Japan Ships in Eastern Seas Trial of Offences committed outside H.M. Trial of Person accused Validity of Acts done under 0. in C. Warrant to Arrest „ „ Witnesses, Examining of „ Piracy of American Copyright „ Protection to Copyrighted Book „ Snbject or Citizen as Senator ... Foreshore and Dominion Legislation ... „ Property in Forgery and Provincial Legislation ... „ Case, Appeal in Forms, Extradition Fort St. George » II N II » II It It » II II •1 II II II ti II » II it II •1 II 11 11 II M It II II l> II It II II II II ti II If II II II » fl It n » It It It tt It II PAfll .. 132 ... 7." . . 7!i ... 3.n .. 72 ... 72 TI ( 1 ... 73 ... 74 100,910 ... 805 ... 00 ... 26 ... 87 ... 91 .. 541 ... 244 ... 78'J ... 1031 ... 1030 ... 1030 ... 1037 ... 1037 ... 1034 ... 1037 ... 1033 ... 1033 ... 1032 .. 1034 ... 1037 ... 1037 ... 1031 ... 1036 ... 1035 1033 1030 ... 1034 ... 1038 ... 1035 ... 1035 ... 1037 ... 1037 Dominions 1034 ... 1033 ... 1035 ... 1033 ... 1033 ... 878 ... 869 ... 15 ... 306 ... 498 ... 107 ... 419 ... 784 ... 1010 rJ I 4a 2 1108 INDEX. PAOE Port William ... ... ... ... ... ... ... 1010 Fortifications nnd Provincial Propertv ... ... ... ... 533 „ ic Colonies ... ... ... ... ... ... 824 „ Loan for ... ... ... ... ... ... 787 Franchise of Indians iind Chinese ... ... ... ... ... 100 Franklin, Now Provincial District ... ... ... ... ... 554 Fraud, Acts in Canada to prevent ... .. ... ... 304 Frederickton Roman Catholic School ... ... ,,. ... 348 Free Schools in Nova Scotia ... ... ... ... ... ... 3Gt; „ The New Brunswick ... ... ... ... ... 348 Freedom of Produce Travelling from Province to Province ... ... 635 Freight, Responsibility for ... ... ... ... ... ... 977 French and English Languages used in Dom. H. C. ... ... ...4, 542 „ Edicts ... ... ... ... ... ... ... 661 „ Law Examined ... ... ... ... ... ... 280 „ „ in Privy Council ... ... ... ... ... 425 „ „ in Quebec and Preference Payment* to the Crown ...31, 32, 288, 4J2 „ „ prevails in Quebec ... ... ... ... ... 4 „ Revolution, Claims by British Subjects and P.O. ... ... ... 412 „ Tax on Trades ... ... ... ... ... ... 119 Friendly Islands, Appeal from ... ... ... ... ... 1014 Fugitive Criminals in British Possessions ... ... ... ... 778 „ Ofifenders... ... ... ... ... ... ... 826 Funds of Ontario Coporation taxed in Quelxjc ... ... ... ... 122 Fur Trade Act ... ... ... ... ... ... ... 6i)6 G Gallipoli, Appeal from ... ... ... ... ... ... 1014 Gambia, Right of Appeal from ... ... ... ... ... 1011 „ Territories, Appeal from ... ... ... ... ... 1011 General Authority of Parliament ... ... ... ... ... 62 ,, Court of Appeal, Canada ... ... ... ... ... 394 ,, Law by Dominion must not be limited to any particular Province ... 168 „ Power giv n to Dominion ... ... ... ... ... 2 „ ,, overriding the Provincml ... ... ... ... 48 „ Rirpose of Act by Dominion ... ... ... ... ... 157 Scheme of B.N.A. Act ... ... ... ... 1043,1070 Generality of Terms not to be restricted ... ... ... ... .13 Generally 1" matters of a Local or Private Nature discussed ... 44, 86 „ matters merely Local, &c. ... ... ... ... ... 328 GhiO, Appeal from ... ... ... ... ... ... ... 1014 Gibraltar, Right of Appeal from ... ... ... ... ... ton Gilberts Island, Appeal from ... ... ... ... ... 1014 Gold Coast, Right of Appeal from ... ... ... ... ... loil Ctold Minos in Provinces ... ... ... ... ... 519,520,621 Government, Executive, Seats of ... ... ... ... ... 35 „ Federal, meaning ... ... ... ... ... 1 „ Lower Canada, Temporary Act of 1837 . ... 664,069 „ Office and Membership of Assembly ... ... ... .id „ Quebec, first Act ... ... ... ... ... 556 „ Kepresentative, Earl Grey on ... ... ... .,, 28 „ Seat of ... ... ... ... ... ... II „ to be carried OD in name of the Queen ... ... ... 7 PAOK ... 1010 ... 533 ... 824 787 ... 100 ... OOi ... 304 ... 348 ... 3Gg ... 348 ... o3o 977 ...4,542 ... 661 ... 289 ... 425 ..31,32, 288, iJ2 4 ... 412 ... 119 ... 1014 778 ... 826 ... 122 ... 590 E^ovince 1014 1011 1011 02 394 168 2 ... 48 ... 157 1043, 1070 ... 43 44, 85 ... 328 ... 1014 ... 1011 ... 1014 ... 1011 619, 520, 521 ... 35 1 664, 659 ^'^ ... 6!}G ... 28 ... 11 7 INDEX. 1109 I'AOK Governor and Council, acting judicially, cannot be sued ... ... ... 10 .. » „ Appeal to ... ... ... ... 333,377,384 „ and Sovereign Power ... ... ... ... ... 10 „ Colonial, and English Sovereign Compared ... ... ... 28 „ in Council, meaning of ... ... ... ... ... 9 „ Lieutenant, Appointment of... ... ... ... ... 27 ,1 may be sued in this Country ... ... ... ... 10 „ of British Colony and British Parliament ... ... ... 28 „ of Colony suing therein ... ... ... ... ... 10 „ old Eight of refusing consent to Bills ... ... ... 579 „ General bound to t).ke Advice of Ministers in Office ... ... 8, 9 I, ,1 and A.ssent to Bills ... ... ... ... ... 26 I, „ and Appointment of Deputy ... ... ... ... 9 II ,1 and Deputy of Lieutenant-Governor ... ... ... 36 I) II and Lieutenant-Governor's Authority, Antiquity of thi! latter 9 II ,1 and Loyal Assistance by his Counsels to his Ministers ... 30 i> I, and New Officers ... ... ... ... ... 641 II ,1 and Ofnce of Lieutenant-Governor ... ... ... 28 i> II and Provincial Acts... ... ... ... ... 61 II ,1 and Provincial Law... ... ... ... ... 334 » .| and Unconstitutional Measures ... ... ... 43 » I, appointed by the Crown ... ... .. ... 7 » II appointing Queen's Counsel ... ... ... ... 7 ,1 „ Deputy, and Commissions of Oyer and Trrminer... ... 34 M i> dissent to Provincial Bills and Imperial Instruetion.s ... 42 » I, h'.s general supervision over acts of Lieutenant-Governor ... 28 II I, may summon additional Senators ... ... ... 14 » I, must first recommend appropriation of Public Kuvenue before vote passed ... ... ... ... 25 w II paid by Canada ... ... ... ... ... 485 II ,1 Power, Authority, and Function of ... ... ... 8 II ,, Power in Crown to recall ... ... ... ... 29 u II Power to dissolve ... ... ... ... ... 23 II „ Salaryof ... ... ... ... ... ... 486 II „ should have no Political Friends ... ... ... 30 ,1 „ Summons Senators ... ... ... ... ... 14 ,1 ,1 to be guided by Advice of Ministers ... ... ... 30 GoVOrnor't' Authority derived from his Commission ... ... ... 10 Governors, Instructions to ... ... ... ... ... ... 1006 Grammatical Construction of sub-sec. 16 of sec. 92 (LiquorCase) ... 47, 1066 Grant of Letters of Representation in England where Probate in the Colonies 839, 840 Grants to Provinces ... ... ... ... ... ... 633 „ to Schools ... ... ... ... ... ... ... 345 Granville, Earl, on Duty of Governor-General ... ... ... ... 42 „ „ on Power to Legislate as to Marriage Licenses ... ... 256 Grave Question, and Special Leave to Appeal ... ... ... 441,442 „ „ withholding Sanction to Bill ... ... ... ... 43 Great Seal of Provinces ... ... ... ... ... ... 643 Grenada, Right of Appeal from ... ... ... ... ... 1011 „ in Canada ... ... ... ... ... ... 96 Grenadines, Appeal from ... ... ... ... ... ... loii Griqualand West, Appeal from ... ... ... ... ... loii Guernsey, Appeal from ... ... ... ... ... ... lOU Guiana, British, Right of Appeal from ... ... ... ... 1010 Guidance of Governor-General ... ... ... ... ... 8, 9 Guiding St.ar in Canadian Politics ... ... ... ... ... 30 i ! ii 1110 INDKX. Gucpowder, Salo of, and Provincial Laws Guns, Trado in Gwynue, J-, on the Decision in Hodge v. Kog. rA(iE 10 1 lu2 I'j; 101, H Habeas Corpus iuiil Extradition „ „ Appeal in ... , „ reintroduced into Canada Hagarty, C.J.O., on Dominion Liiw exemplifying Provincial Law .., , „ on Power of Municipalities ... Halifax, Appeal from Harbour, Property in Soil ... Hard Labour for Breach of Lienor Laws Harmless, Double Legislation Hasty and Unwise Legislation and Dominion Power Head of Constitutional State, Governor-General ... Hereditary Titles to Legislative Councillors Herschell, Lord, Quoted „ „ on Manitoba School Acts H^fh Court of Delegates „ Trcison, Appeal to P.C. History, Brief, of Canada „ of British Columbia „ of Clergy Eeserves ... „ of Ro.ian Catholic Rights „ of Quebec „ of the Civil Code ... „ of the Union Home Kule claimed Honduras, British Appeal from Hong Kong, Appeal from Hospitals in Canada Hotel Licenses by Dominion ... House of Assembly and Contempt „ of Commons, Canada, and Dismissal of Lieutenant-Governor ... ,, and Laws for Peace, Order, and Good Government „ and Provincial Representation, Adjustment of ... „ and Senator sitting therein ... „ Duration of „ First Election „ how Summoned „ Increase of Representation ... „ Number of Members „ Number of Representatives ... British Columbia. Nova Scotia. Manitoba. Ontario. New B'unswick. Prince Edward Island. North-West Territories. Quebec. „ Provincial Districts for ... ... ... 17 „ Quorum of ... ... ... ... '2'i ,, Speaker, Election of ... ... ... '23 ,, when Voices e II » II •• II II W w (I It l» M II II II •» II o41 lor, i ... in;i ... 1!0.-) ... 1012 ... 198 102,135 ... .52 58, 1070 ... ;io ... ofl'J ... 187 ... .m ... 1005 ... 538 3 5 4 4 ... 95 ... 290 ... 181 ... 199 ... 1012 .. 1012 ... 124 ... 146 36, 1079 ... 28 43 24 17 23 22 17 24 16 4 II l» II 11 w M II •1 i; i 1 ... 541 104 , 105 1 103 205 1012 ■198 102, 13o .•• 5U 58, 1070 ;io 509 187 378 1005 538 3 5 4 4 95 290 181 199 1012 1012 124 145 36, 1079 28 overnmeiit 43 lent of 24 17 23 22 17 24 4,16 4 ird Island. 17 23 , 23 k^ote 23 41 346,411 INDEX. Hudson Buy Company cut up into Provinces „ „ Surrender of Rights, (fee, of „ „ Territory added to Dominion Himting and Fishing by Indians, Regulation of Illegal Measures, Duty of Governor-General „ Provincial License ... Illtreatmeilt of Horses, Example Immigration, Concurrent Povfers ,, of Chinese Immunities of Canadian House of Commons ... „ of Nova Scotia Assembly „ of Quebec A.-N5Bmbiy Imperial Acts, Not to be Altered by Provincial Act ,, Interests, and Assent to Bills,., ,, Legislation and Provincial liCgislation ,, Parliament and Colonial Legislature, Powers of Latter ... „ ,, and Privileges Given „ „ and Quebec Assembly „ „ Interference by, Becoming Rare „ Power and Provincial Legislatures ,, Question, Direction to Crown to Intervene Importance of Question in Special Leave to Appeal Important Part of Canadian Temperance Act set out Importation from Provinces „ into Canada of Printed Copies of English Works from Country Impost and Taxes, to originate in H. of C. Imprisonment. False, Liquor Laws ... „ Imposition of „ „ for Contempt of Parliament Income Tax compared with License Tax on Insurance „ ,, in the U.S. ,, Meaning of... Incorporated Company Acting for one Province only Incorporation of Banks „ ,, Provincial Tax on ,, of Companies „ ,, with Provincial Objects Increase of Members of House of Commons of Canada ... Indemnity, Contract* of, Not a Trade Independence and Autonomy of each Province India, Appeal from, in Criminal Suit ... „ Acts and Appeal. See Bengal ... Indian and Chinese Electoral Franchise ,, Lands „ „ and Provincial Right „ „ Purchase of, Requisite .. „ Reserves „ Trade Act ... „ Tribes and U.S. Indians, Prohibiting Selling of Liquor to Indirect Tax, Converse of ... nil I'AGB 5 ... 755 3 ... 100 ... 43 ... 127 ... 133 ... 380 G3, 122 11 ... 1079 ... 36 ... 32 42 ... 336 ... 22 ... 118 ... 36 . . 51 ... 142 ... 95 19 ... 130 535 a Foreign 91 ... 26 66, 102 ... 324 36, 1079 ... 127 69 ... 76 45 ... 74 ... 75 ... 234 2 ...16,24 ... 263 1,31,293 ... 409 . . 1010 ... 100 ... 94 500,619 ... 96 ... 123 ... 729 ... 62 ... 224 ... 119 I ; i ( I II 1112 INDEX. TAdK InfaiiiOUS Crime coramittod by Sunator ... ... ... ... IS Infringement of sub-sec. 9, sec. 92 ... ... ... ... ... 165 Inland T"i«horios ... ... , . ... ... ... ... 71 „ Navigation ... ... ... ... ... ... ... 610 „ Revenue Cases, Canadian tried, Court Established by Imperial Authority ... ... ... ... ... 59, 09 Inquiry, Commissions for, by Quebec Legislature ... ... ... 37 Inquisitorial Power of Quebec House of Assembly ... ... ... 36 Insalubrious Kstablishments, Power in Province to Pass Laws ... ... 104 Insanity, Imprisonment for. Right to Appeal ... ... ... ... 4)8 Insolvency ... ... ... ... ... .•• ••• 78 „ and Bankruptcy ... ... ... ... ... ... 330 ,, Law in Canada Analagous to English Law ... ... ■■■ 79 „ Law Quoted ... ... ... ... ... ... 165 ,, Quebec and Final Judgments ... ... ... ... 80 Insolvents, Assignments by ... ... ... ... ... 78 Inspector of Fisheries going on Private Land ... ., ... ... 74 Inspectors, Raising Money to Pay ... ... ... ... ... 65 Institutions, Municipal, Examined ... ... ... 64,124,150,1043 „ ,, and Provincial Legislatures ... ... 1,293 Instructions to Governor-General, and Provincial Bills ... ... 42,1006 „ to Lieutenant-Governor, and Bills Passed .. ... ... 42 Instrument under Great Seal, Appointment of Lieutenant-Governor ... 27 Insurance in the Colonies and Probates ... ... ... ... 839 Intention of Statute as to sub-sec. 9, see. 92 ... ... ... ... 53 Inter-Colonial Railway ... ... ... ... ... ... 546 Interest ... ... ... ... ... ... ... ... 76 and Appealable Value ... ... ... ... ... 424 and Penalty for Non-payment of Tax ... ... ... ... 76 Imperial, Protecting ... ... ... ... ... 42 of Provincial Debts ... ... ... ... ... 486 Payable to Nova Scotia and New Brunswick ... ... ... 633 Interference with Dominion Law ... ... ... ... ... 65 Interim Notes of Insurance not a Policy of Insurance ... ... ... 271 ,, Order pending Hearing of Appeal ... ... ... ... 436 Interlocutory Judgments ... ... ... ... ... 421, 423, 428 International Copyright ... ... ... ... ... 849,868 Interpretation of Act of 1867 by Dominion Legislation ,.. 2 Intestates Dying without Heirs, and Right of Provinces ... .. 499 Introductory Enactment of sec. 91 Examined ... ... 56,1060 Inventions ... — ... ... ... ... ... 88 Irregular Appeals... .. ... ... ... ... 422,423 lale of Man, Right of Appeal from ... ... ... ... ,,. 1012 Jamaica, Right of Appeal from ... ... ... ... 1012 Japan, Appeal from ... ... .. ... ... ... 1012 „ and Consular Courts, Action against British Subject ... ... 1031 Jersey, Right of Appeal fi'om ... ... ... ... ... 1012 Judges, Appointment of ... ... ... ... ... ... 380 Attendance in P.C. ... ... ... ... ... ... 1026 „ Duty of ... ... ... ... ... ... ... 390 „ Grossly Abusing Position, Appeal to P.C. .. ... 414,415,416 „ in Canada ... ... ... ... ... ... ... 396 INDEX. 1113 I'AIIR 15 ... 165 ... 71 ... 610 Imperial 69, G9 ... 37 ... 36 ... 104 ... 4)8 ... 78 ... 330 ... 79 ... 166 ... 80 ... 78 ... 74 ... 65 I, 124, 160,1043 1,293 42, 1006 ... 42 ... 27 ... 839 ... 53 ... 646 ... 76 ... 424 ... 76 ... 42 ... 486 ... 633 ... 65 ... 271 ... 436 421, 423, 428 849, 868 2 .. 499 66,1066 ... 88 422, 423 ... 1012 ... 1012 ... 1012 ... 1031 ... 1012 ... 389 ... 1026 ... 390 414,415.416 ... 306 Judges— co»<. I'AOE tt New Powers to .. 312 ft Removability of ... 394 it Salary, &c ..of ... 394 Jadgfment on the Liquor Law, 1883-4 ... 167 II in Liquor Prohibition Case... ... 1064 II Right, Special Leave refused ... 481 Judicature Act of Newfoundland ( 1 793) ... 694 II Appointment of Judges . . ... 389 II Provincial, and Dominion Legislation ... 323 Judicial Committee of the Privy Council, Acts in force ... ... 1005 ti II and Admiralty Courts ... 1019 II II and Admission of Evidence ... 1015 » 1} and Power to Hear Election Petitions ... 40 If II and Questions between Governor-General and Lieu- tenant-Governor ... 29 II ,, and Security for Costs ... 438 If if and Trial of Criminal Cases 34,409,413 » »» Appeal from any Colony may be provided for ... ... 1023 II If Appealing, Time for ... 1008 >• ,, Appointment of Members of ... 1026 11 it Assistant Registrar ... 1025 II •t Colonial Judges Sitting 1019, 1030 II II Compelling Appearances ... • ... 1016-10)7 II II Contempt, P— ■ 'ling ... ... lOlC , 1020, 1024 II »i Costs 1017, 1021 II II Custody of Records of High Court of Delegates ... 1022 »> 11 Death of Parties ... ... 1018 II II Decrees to be carried into eifect by Colonial Court ... 1018 II II Definition of Terms ... 1022 II ,, Depositions may be Ordered 1016, 1016 11 II Enforcing Decrees ... 1020 » l» Evidence ... 1016 if fi „ taken in Court below ... 1024 » If Facts may be Remitted to Court in Colonies ... 1016,1016 II »> Finality of Decisions ... 468 » »l Fixing Quantum of Damages ... 440 •9 3* Foreign Jurisdiction Act ... ... 1031 » t> Hearing of Appeal ... 1024 II If " High Judicial Office," meaning of ,. ... 1028 II >t Inhibitions ... 1021 II « Indian Judges Sitting ... 1019 II ff Issue may l)e directed to be tried ... 1016 II II Judgments, enforcing 1020, 1024 it »f Judicature ' ';t, 1873 ... 1026 H 1* 1876 ... 1026 II II Lords of Appeal in Ordinary (Present) 1026, 1030 i» II Maritime Causes .. . ... 1026 >9 If Monitions ... 1021 >l »> Neglect to Obey Orders ... 1024 II If New Trial ... 1016 »» i; Orders made on Appeal and Death of Party ... ... 1018 n ij Practice... 394, 1005 M ff Prize Appiiils ... 927 II II Proceedings in Appeals ... 1018 M If Production of Papjrs 1008, 1017 » II Proofs, taken by Clerk to P.C ... 1024 ll • - 'J n III uu INDKX. Judicial Cummiueo— fo«^ |.^„j, •> >i Qualiflcrttion of a Lord of Appeal in Ordinary... ... 1028 »f .. Quorum ... ... ... ... .,, 1025 « .. ReferoncG by (). in C. ... ... ... ... loig It ,1 Reference to Kogistrar ... ... ... ... 1017 n » Registrar, Appointment of ... ... ... ... 1017 » » Rules, Power to make ... ... ... ... 1022 n » Salary of Lords of Appeal in Ordinary ... 1020,1030 » .. Surrogates ... ... .., ... ... 1020 » „ Terms, Definition of .. ... ... ... 1022 n » Time for Appealing ... ... ... ., 1017 ,, „ Witnesses may be Punished for Perjury ... ... loifi ,, Triljunwl for Patents in Canada, Minister of Agriculture ... . 8!) Jure Corona' ... ... ... ... ... ... ... 523 Jurisdiction, New, thrown on Old Coui-ts, Competency of ... ... 20 „ of British Court ... ... ... ... ... 4 1 7 „ of Governor-General ... ... ... ... ... 388 „ of Judicial Committee ... ... ... ... ... 1005 „ of various Courts in Canada, Glance at ... ... ... 306 „ of High Court in Salvage ... ... ... ... 984 Jury L*ecision ... ... ... ... ... ... ... 446 „ ,, and Special Leave . ... ... ... ... 440 „ Right to Challenge, Appeal ... ... ... .. ... 418 Justice, Administration of, Old Act ... ... ... ... ... 565 „ in the Province ... ... ... ... ... ... 308 Justices, Appointment Jof, in'Indian Territories... ... ... ... 601 „ in Newfoundland, Act of 1824 ... ... ... ... 627 „ in North-Wesf Ter-itories, Old Act ... ... ... ... 729 „ of the Peace, and Legislation therefor ... ... ... 390 K Keeping open on Sunday ... ... ... ... ... ... 125 Keewatin, Increase of Territory to ... ... ... ... ... 554 Kimberley, Earl, on Lieutenant-Governor Appointing Queen's Counsel 35, 36 „ „ on New Brunswick School Question ... ... ... 337 King, J., on Different Aspects of Subjects ... ... ... ... 192 King's Commission to Admirals to try Offenders in any of the Plantations ... 704 Kingsdown, Lord, on Criminal Appeals ... ... ... ... 415 Knutsford'S, Lord, Letters on Production of Probate in England ... ... 839 '■■v.' s Labour, Hard, under Liquor Laws Labrador, lUsiimi of History of Labuan, Appeal from Lagos, Appeal from Lakes, Great, Property of Fish in Lambe Cases Land, Aliens, and Provincial Laws „ and Provincial Legislation „ and Provincial Property „ Allotted for Protestant Clergy ... 135 6 ... 1012 ... 1012 ... 73 ... 113 ... 307 ... 71 499, 513 ... 584 T 102G, I'AUK 1028 1025 1018 1017 1017 1022 1030 1020 1022 1017 1016 80 523 20 417 388 1005 396 984 446 449 418 565 308 601 627 729 390 . 126 . 554 35, 36 , 337 ,. 192 ,. 704 . 415 ,. 839 ... 136 6 ... 1012 ... 1012 ... 73 ... 113 ... 307 ... 71 499, 513 ... 584 INDEX. 1115 Land — aont. „ Held FAUE Socngo 624, 660 46 in Fief and Seignory may be changed to Common Tenure „ „ in ft Province by a Dominion Company Lands, Indian, Requisite to Purchase of „ Public Management and Sale of Language of Journals of H.C. of Canada Law by Province to carry into effect Act of Dominion, Validity of „ Constitutional Powers of U.S. contrasted with Dominion and Provinces „ Criminal „ correctly decided, chance of Appeal ,, Limiting Liquor Licenses „ re Liquor „ Restriction on sale for sake of public safety is not a Law in relation to Property ... „ Society of Manitoba „ Validity of Colonial Laws Laws, Continuance of Existing „ of Canada, Old ,, on same subject by Dominion and Province ... Leave to Appeal, Cases » >, ., Allowed » „ „ Refused M „ Colonies, alphabetically arranged u „ Election Cases, none to be granted „ „ if a doubt of the soundness of the decision, duty to grant Power of Queen to grant Question and Test on which granted Special to Crown Leeward Islands, Right of Appeal from Legal Estate in Crown Lands „ Proceedings under Merchant Shipping Act „ Rights and Schools „ Tender Legfislate, Power to, does not prove Property in the subject Legislation, Ancillary Power „ and the Prerogative of the Crown .. . „ by both Dominion and Provinces ... „ by either Dominion or Province ... „ by Dominion, Limit on ... „ by Provinces, &c., extent of their power „ Conflict of „ Double „ Imperial „ of Dominion modifying Provincial Legislation „ Provincial „ of Canadian Parliament, source of, as compared with Legislation „ Uniform Legislative Afsemblies, Meeting of ... „ Assembly and Elections ... „ ,, of Ontario „ „ Quebec, Constitution of ...• „ „ „ and Punit^hnient of Contempt „ Authority of Parliament of Canada „ Council of Quebec, Composition uf n » •I 96 123 542 65 61 12 438 66 129, 140, 1064 ... 133 ... 393 738, 1079 ... 637 ... 566 ... 78 ... 406 ... 449 ... 472 ... 1009 19,46,308,314 22 ... 82 441, 447 122, 410 e« seq. 476 1012 97 992 356 78 99 142 33 104 1064 1043 142 48 60 33 1070 132 44 302 Provincial 132 136 40 31U 36 36,38 36 43 36 f ; :[ii I iSM Hi I 1116 INDEX. Legislative — <^ont. vrnv. „ Council of Quebec, Quorum of ... ... ... ••. 37 „ „ Speaker of ,.. ... ... ... 37 „ „ Old ... ... ... ... ... 568 „ LawH, Continuance of ... ... ... ... ... 30 „ Power, Ontario ... ... ... ... ... 35 „ „ and Appointment of Lieutenant-Governors ... ... 27 „ „ and phrase used ... ,. ... ... .. 27 „ „ of Dominion Examined ... ... ... ... 56 „• „ of Provinces strictly limited ... ... ... 384 „ Privileges jealously guarded ... ... ... ... 109 Legislature ftcting by niiii"lftto from Imperial ... ... ... ... 49 „ Colonial, powers of ... ... ... ... ... 22 „ in Colonies, Power of, to alter Merchant Shipping Act ... 1000 ,,: of Nova Scotia, Continuance of ,.. ... ... ... 41 „ of Nova Scotia and New Brunswick, Continuance of , . . ... 41 „ Provincial, and derivation of authority ... ... ...1,293 „ Provincial, not Delegates ... ... ... 1,142,293 LemnOS, Appeal from ... ... ... ... ... ... 1014 Lengfth of Office of Lieutenant-Governor ... ... ... ... 28 Letters Patent and revoking ... ... ... ... ... ... 460 „ „ in the Colonies, Old Act ... ... ... ... 732 Libel ftid Parliamentary Privilege ... ... ... ... 12,36,1079 ,, Case, Appeal ... ... ... ,.. ... ... ... 417 ,, Letters to Colonial Secretary ... ... ... ... ... 436 „ Privileged Communications ... ... ... ... ... 456 Liberties to Fishermen by Treaty with U.S. ... ... ... ... 805 License by Dominion and Provinces ... ... ... ... ... 56 „ Burden of Proving ... ... ... ... ... ... 66 ,, Cases ... ... ... ... ... ... ... 68 „ Commissioners and Authority from Provincial Legislatures ... 137 „ for Exposing Meat ... ... ... ... ... ... 161 „ for Vessels ... ... ... ... ... ... ... 161 „ is the machinery used to restrict ... ... ... 146,1075 „ Liquor, U.S. ... ... ... ... ... ... 160 „ on Selling Intoxicating Liquor ... ... ... ... 161 ,, to Brew, indirect Taxation ... ... ... .. ... 57 ,, to Brewers ... ... ... ... ,., 67,127 „ to Fish and Legislature's Powers ... ... ... ... 72 „ where no penalty on not taking it out ... ... ... ... 127 „ which would amount to a prohibition, Validity of ... ... 58 Licensee not bound to pay for the License ... ... ... ... 127 Licenses by Dominion ., ... ... ... ... ... 146 „ for Guns from both Dominion and Provinces ... ... ... 146 „ Liquor, Nova Scotia Act ... ... ... ... ... 126 „ Marriage, Legislation as to ... ... ... ... ... 266 „ Shop, Tavern, and Petty Hawkers ... ... ... 52,1075 Licensing and Prohibition, meaning of ... ... ... ... 190 „ Chines'-.. . ... ... ... ... ... ... 122 ,, not Commerce ... ... ... ... ... ... 214 „ Power ... ... ... ... ... ... ... 197 „ Sale of Meat ... ... ... ... ... ... 161 Lieutenant-Governor Acting wftra t'trcs ... ... ... ... 28 „ „ and Dissolution of Legislative Assembly ... ... 40 „ „ and Deputy ... ... ... ... ... 36 „ „ and Higher Authority ... ... ... ... 9 It „ and Bemoval from Office ... ... ... ... 20 I INDEX. 1117 LiOUtonaJlt-Oovemor — cont. „ „ and Salary PAOK 30 ... 28 7,11,36 ... 27 ... 36 ... 33 ... 28 ... 28 „ „ and Supervision „ „ Appointing Queen's Counsel I, „ Appointment of „ „ Appoints Councillors for Quebec ... „ „ as ti Corporation Sole „ ,, Dismissal of ... „ „ Holds the Queen's Prerogative Power „ „ in Council and Lieutenant-Governor acting with Advice of Executive Council the Same ... ... 34 „ „ Office by Pleasure of Governor-General ... ... 28 „ „ Represents the Queen ... ... ... ... 7 „ „ Paid by Canada ... ... ,,. ... 30 „ „ Reserves Bill in Capacity of Officer of Dominion ... 42 „ „ Term of Service ... ... ... ... 28 „ „ to Summon Legislative Assembly ... ... ... 38 Life of Canadian H. of C. ... ... ... ... ... ... 23 „ and Property, Provinces can Legislate to Protect ... ... 106,1043 Lighthouses in the Colonies ... ... ... ... ... 991 Limit of Prerogative of Queen ... ... ... ... ... 31 „ of Time within which Bill to be Disallowed ... ... ... 26 „ on Dominion Power Limitation and Prohibition, Distinction between of Provincial Powers, Tax on Dominion Officer on Issue of Licenses . . on Powers of Congress on Prerogative of Queen in Quebec ... on the Power of Parliament of Canada Limits of New Brunswick „ of Nova Scotia „ ofOntario ... „ of Quebec ... Line of Railway to a State in U.S. „ of Steamers between Provinces Liquor Act, Nova Scotia „ ,, Old, Examined ... „ Laws „ „ Attempt by Dominion to Institute Liquor Licences ... „ „ Brewer Selling on the Premises ... „ „ Cases. Hodge's „ „ „ Russell's ,, „ „ Prohibition Case „ „ of 1883-4. Judgment „ „ of New Brunswick „ „ of Ontario, 1877, in Hodge's Case ... „ „ Provisions of Ontario License Acts and Canadian Temperance Act ... ... ... ... ... 161, 1064 „ Repeal of ... ... ... ... 1042,1064,1070 „ License, and Sanction of, by Ratepayers,.. ... ... ... 162 „ „ Limitation on Issue of ... ... ... ... ... 65 „ Prohibition and Special Leave to Appeal ... ... ... 467 „ Prohibition Case, 1896-6. Argument in P.C. ... ... ... 1044 „ „ .,„ Judgment in Canada ... ... ... 164 „ „ » .. in P.C 1064 „ Selling to Indians ... ... .. ... ... 62,224 „ Traffic ... ... ... ■•■ 102, 161, 1042 ... 61,119,140 149, 1075 70 ... 65 ... 61 ... 31 ... 800 7 7 6 6 ... 225 ... 224 ... 126 ... 218, 220, 1066 129, 140 ... 145 ... 158 ... 135 ... 129 ... 1042 157 ... 162 ... 138 1118 INDEX. Liquor— co»'. Trnfflp and Abolition undor suli-HPO, 0, sec 92 „ unci OnHolidnt ion of Laws ,, Keopinp; Oppn on Sunday „ Provincial Delegation to CommisNioners to Regulate, Valid ... Tax, Old (Imperial) ... ,, on Wholeialo Literal Moaning of the words " Regulation of Trade and Commoreo " must Iweutdown Loan for Purchase of Rupert's Iiand ,, to Canada „ to Province of British Columliia ... Local Administration, Authority fur ... „ Acts and Imperial Acts „ and Dominion liUgislation „ and Personal, Examined „ and Private Railway to U.S. Territory ... „ and Provincial, and Power of Canadian Parliament ... „ Assembly and use of the word " Parliament" „ „ Protection of Members „ Courts of Admiralty ... „ Law and Corporations ... „ Licenses, Imperial ,, Legislature, Power incidentnl to Close Public Houses on Sunday „ Matter may become a General Matter „ Municipal Revenue and Canadian Temperance Act ... „ Option ..'. ... ... ... ... 134, „ „ Law compared with Law for Sick Animals ... „ „ Law Repealed by New Municipality „ or Private Matters „ Purposes, Provinces cnn always impose Direct 'J'axation „ Revenue, raising „ Societies „ Wants ^, Works „ Undertaking, what Lodging Printed Appeal Cases. jSe« Note Lower and Upper Canada United „ „ „ Severed „ Canada, Marriage Laws Lumber Dues, New Brunswick „ in Province „ Security ... Lunatics, Removal of Criminal PAdP. ■ nci!) 125 ... 118 ... 7fi2 ... 8n<) ... one 1 ... :i2 ... l.J2 ... 134 ... 07 ... 1042 11, 1070 ... 1070 395, 888 ... 244 ... 220 ... 161 ... 157 ... 132 163, 1042, 1064 ... 136 ... 126 ... 328 ... 67 ... 126 ... 331 ... 230 ... 224 ... 66 ... 1041 5 ... 4,6 ... 264 ... A35 ... 73 ... 296 ... 841 M U achinery of Limitation and Restriction is License Macnaghten, Lord, on Manitoba Schools Acts ... Madelaine Island ... Madras, Appeal from. See Bengal ... „ School Magazines and Copyright in Canada ... Maintenance of Prisons and Reformatories Majority necessary in any Bill altering Electoral Limits ... 140 ... 371 6 1010, 1014 ... 347 ... 861 ... 123 ... 38 Tr INDEX. Malacca, Appeal from Male liritish Sulijiict in Canada, Voto given to, in Algomn Malta, A piuMil from Man, Iflu of, Appoftl from Management of Cimsolidatwl Fund ... II Ri'fiirmatorios and Prisons « Pulilic Lands Mandamus in Liquor Case ... Manitoba Act „ Aliens holding Lands „ and liarristiTs and Solicitors ,, and Dominion Parliament ... „ and Escheats ... ... ... „ Appeal from „ History of „ Judicature „ Representatives in H.C, „ yunators „ Schools ... I, „ Act „ „ Catholic and Protestants Cases „ State before Union Manufactares in Canada ... Marine Hospitals ... Maritime Provinces, Senators Marriage Acts ,, and Divorce, Expression as to „ „ Snbjeois Examined ,. Licenses, Provincial Kills for „ Solemnization of ... „ Validity Act Marshall, C.J., on Constitution of the U.S. Matabeleland, Appeal from Matrimonial Causes, Appeal to P.C. ... Matter within exclusive competency of Provincial Legislature MauritinS, Appeal from Maximum Number of Senators McCarthy Acts, 1883-4 Measures and Weights Meat, Sale of, to be Licensed Medical Act, Colonials Practising in England ... „ Inspector on British Ship „ Practitioners in Canada „ „ Colonies Meeting of Dominion Parliament „ Legislatures of Ontario and Quebec ... Members of H.C. Canada for New Brunswick ... „ of H.C. Canada „ of Legislative Assembly, Ontario ,, „ „ Quebec „ „ „ Question of Privilege Mercantile Law Question, Appeal allowed Merchant shipping Act, 1894 : — Accidents, Report of Admiralty Jurisdiction over British Seamen in Foreign Advance ofWages ... 1119 Port ... 1012 ... 30 ... 1012 ... 1012 ... 486 . 123 . . 12» ... 161 360, 653 ... 101 ... 721 . 800 ... 518 396, 1012 6 ... 403 4 ... 13 ... 372 ... 333 ... 371 ... 373 ... 635 ... 71 ... 13 249, 2.'j6 .,. 260 48, 156 ... 254 ... 2J0 ... 741 ... 118 ... 1012 ... 435 ... 85 ... 1012 ... 15 ... 188 ... 76 ... 161 ... 884 ... 943 ... 368 764, 884 ... 12 ... 38 ... 18 16 ... 35 ... 36 36, 1079, 1088 ... 433 ... 966 ... 994 ... 937 il'i V- ! U^ 1120 INDEX. M<'r('hrtnt 8hippinp[ Act, 1894— fow/, Agrecmt'iit with Crow, AltornlioiiH in „ Condition w M N. N If >• W Copy of Foreign-going Ship Vorgery of Form ,., Home-going Ship need not produce Period of „ with LascnrH AUotmont Notes, Payment of WngDB „ „ Suing on Alterations to Ship, Kvidoncc of „ ReturnH as to Anti-Sforbutics, supply of, in Colonies ... Appeal on Summary Conviction „ Court of Survey Apprentice.,. „ Pauper ... Apprenticeship of PauperH AmjHt of Foreign Ship occasioning damngi' „ Deserter Assignment of Salvage Rights ... Bank, Savings, Allotment of Wages Bankruptcy of Owner and Mortgagee ... Beneficial Owner Births and Deaths, Registration Board of Trade and Harbour Dues „ and Savings Banks „ General Control of „ Inspectors „ Purchasing Wreck British Ship, ceasing to be, delivery up of CortiAcate „ Prosecution of Offences „ Seaman in Foreign Land „ Ship, qualification of Owner, Registry Cancellation of Passenger Steamer Certificate Cargo, Deck, Dues ... „ Salvage of Civsualties, Inquiry Courts „ Certificate of Officer „ Removal of Master Certificate, Colonial ... „ Delivery up, when Ship lost „ Endorsement on ... „ Grant of „ Loss of, of Competency ... ... „ New, Power to grant „ of Competency ... Fees Forgery of... Form „ Production of of Mortgage, Contents „ Loss of „ Revocation of >» 1, »» » f> » VAOK ... ll.'Ki ... 030 ... 036 ... 030 ... 036 ... 930 ... 036 ... 936 ... 030 ... O.-JO ... 037 ... 038 031,032 ... 032 ... 9»3 ... 993 ... 948 ... 93.5 ... 930 ... 935 ... 994 ... 945 ... 944 ... 937 ... 931 ... 932 946, 960 ... 1000 ... 938 ... 998 ... 1000 ... 979 ... 930 ... 998 ... 937 ... 927 ... 948 ... 933 ... 981 ... 973 ... 973 ... 973 ... 935 ... 930 ... 930 ... 934 ... 936 ... 930 ... 934 ... 934 ... 935 ... 936 ... 935 ... 931 ... 931 ... 931 Tir^l INDFX. 1121 Mcrchimt Hhippinp; Aot, 1894— co«<. PAflK Ourtillciito i)f Movt){iiK<', Huliw as to 031 >1 II Ntilo of 031 „ of PiiHHongor Htoamor'H Survuy 048 „ of Itogistry 920 ,1 of DiNohargu of Seaman Abroad ,,. .. 941 „ ProviHiimal 931 ,1 to Eiij^iiiecrH 034 „ using Improper (irtiflcato ... 930 Change of OwnerHhip, Rpgiblrv anew ... 032 .Charge on Owner, Relief of Heaman'n Family 041 „ on Wagon ... 03.sit „ „ I'lMjitTty of ... IVok CurRii Oinvs |)i'fk-limw, Marking... Ooolaratioiis, Kalso, mt to U(>niHtry of Allorations ... „ i-t'spivtiiig .AltonitioiiH, I'Vi'N, Ki'fiistoi' DiHluotioiiN from Wiigos „ in asorrtniiiin)!; 'I'oiiiiafri" Dofliiitioii, riVi.M'iiH[or Ship „ 'IVriUN „ of I'rloiiial VoyHjJti' ... DiJivory up of t'oriitlonto ,, of Acoomit ... PoHorl, Knticinp; to ... Dosortw, Anvdt of ... „ ( iiivcyain'o on llonnl „ I'orfoitiiri' of Wa^iw ... „ from foreign Ship ... „ linpri.sonmont of DoNiTtioiiH .Miroail ni'stituto SivimtMi DotiMition of I'rojH'rIy for Salvagi' „ of Sliip for Pani.im's Pi.slmi'Nc'mtMit.M of \Va){os Disi'harno of Stvinii'ii .Miroail ... „ Impi-opcr SiMunan Mort(j;a);i-, Kiitry of „ SiMimoii Pisciplino ... „ of Stowaway H ... ... ... HiHlivss on Ship for I'MMiam' ... PiNliv.ssi'il Soainoii Docnmoiit.t. anil KiirniH ., 'I'ninsmission of, l>y pchf i)niii(jlil of Ship, Si'ttli'mciit of ll'spntc as to PiU's, Dwk ('ar)j;o Local Iiinht I.ijjhthouso .. . . Kli'i'lrii'ily, Ship I'roiH'lloil liy ... Kiainranl ShipH „ „ Al».lraot of Part ;t „ ,, .\iToiumoilaiioii of Sirrrani) PiiHNi'ti({i>rH ,, .\ppoal to Courl of Snrvoy „ Application of Part U ... ,. I'onvoyanw WrwkiMl Pa.sKunpfiTN ... ,, Carriani' of PaNHi'njJUM-H ... ,, Cloarani'i' ... ... ,, DangMrouH (hxHU II » 11 II II II r.Mir ... 'J'.!'.) ... »7s ... '.»(•>;) ... or.n ... Ulli ... nil .. '.no ... nil) ... i>;is ... ttio ... \r.\:\ '.•(if), uii: •.i;u , '.iM'j ... 'XVI ... ".>:i7 ... '.);i;i ,' 1 1 .. 1001 ... '.U,S . . . lliiO ... '.i:i7 ... !M(1 ... '.ll.'l ... \i\;< ... '.)I0 ... oio ... ii-i'> oiri, '.M(i ... '.Ill ... '.LSI ... ii'.n; ... i»:i'.i ... nil ... ',i:iii ... '.i.'ii ... il.'Ui ... '.ii.'i ... !l|(i . . . '.I'.n; ... '.MJ ... '.I'.I.S ... 100! ... !).S,S ... i);i;i ... imo 081), '.I'.Ml ... 1 00 J 1)17.010 ... Oi°>l ... ll.'iO ... it,)7 1)01,0(12 ... D.V.) ... OAO ... !l,')7 ... DM r 'I! i. r.Mii' ... It'J'.i ... »iS ... SllUt ... wn ... '.»i(i ... nil .. !"ll> ... ".>tn ... '.';is ... 010 ... !»;i:i i):ll.'.t!i'2 ... '.'!!'2 ... i>:i7 ... \m ... fiij .. 1001 ... yis ... i>;io ... «;!7 ... uir. ... Ol.i ... ".>i.^ ... i)i. iMO ... '.Ill ... '.IS! ... il'.ll' ... ".i:!'.' ... on ... o:tii ... o;n ... o;u5 ... Ol.'i ... OKI . . . O'.lO ... or.! . . . oos ... 1001 ... OSS ... o;i;i ... 000 081), 000 ... 100 J 017.010 ... w\ ... 0,')0 ... 0,i7 001, 002 ... o.v.) ... 0.')0 ... 0,i7 ... 043 INOFX. MiMflmiil .'^liiiipiiig Ai'l, 1804 rout. Kniiitnnil .'^liil's. Iti.MiMjiliiu' on llounl ,, ,, KxiMiipt fiHMii Hiirvi'V ... ., ., I'oi'lVitHri' of . . ,, ,. l'"orm.'< utnl l''iM's ,, (ioviTiu)!'.") forwiitiling I'ltsson^orN ., .. lliirlumr Hy-liiwN ,, liinpoi'tiiiii of ... ,, liisuniiuMi of I'liKsonjfi'f Moiii'v ,, ,, Uiiuliiiff I'lUMSi'iijiiTs lit Wrong I'liioo ,, ., liisl iif l'iiK.sonp'rs „ ,, Miiintt'iuuioc of .'iiigi> l'ii.s«(iiij{orN „ ,, MiisIim-'n Hoiul „ Mi'ilifiil lii.-fiHvtor of Stwinigo I'liNNoiinurs ami Mi'ilii-nl .stivll... ,. Militiivy SloivH Ntimln'i' of I'as.'KMip'i's ... ., l'im.si'iij{i'r ("oiilrai'ts ,, ,, riivmi'iil of I'iuv „ .. Provision.-*, Wiili'i". ami Moitioal .Stmv.s |{i>-liimlin)j; of l'a.>iMMijp>r!* Ki'triitalion of ."^tocrago Pa-s-songi^i-N „ .. lu'poii of Ki'lnrn „ ,. Uolnrn of Punsjigo-iiioiioy .., „ „ .'^alo of .* Stowage of (IooiIn „ „ .SiiKsistom'o of PiLwongoro ,. Wm-k.>.l Kniigration Knuul.s ... Kmloi-NonioMt on t'ortillcnti' Kiigagoniont iif SwmuMi Kngini>or'.H ('crliflmto of Compotoni'v Kniioing Smincn to Dosovt ICntrv of Pi.si'hai'go of Ship l"wm Mortgago Kipiipniont, Kniignuif Sliip'n ... ,, Ooui'i'al ... of PiitwiMigm' Slmmor I'lipiilaMo Kiglit.s Kviilom'o ami Wi-ivk ... „ UrtnriiN of AlliTation „ wlicn Ship I'an.scs Patnagi- Kxainination I'Vos „ of Mastrr.s anil Si'anicn Kxrtw* Pa.>iHi'ng(>r. Penalty l''alsi> Name of Ship, Srainan giving l''aniily ii!' Seaman ami Ut'lii'f ... I'Vi'H on Kxivniinalioii tor I'lilitleale of Conipeteney „ t'or Mea.snremenl ,, PaHNonger Sli'anier Certilli'ate „ PitotJige I'ertitU'Hten ,, UiKviviTN of Wnvk KiNliing Ikxktti „ „ Applientioii of Aet to ... ... ,, I'V' .ml Light Signals I'or^ory of Agrwinoiit with ('ri>w *^''"itteiit« of CompoloMcy ... (^rt«\v 112a I'AlIK ... O.'.S ... 1)(U ... 0.')8 ... OtU ... nw) .. Ofil ... \K,: ... 060 ... M9 ... I)fl7 ... l)/i8 .. o.'>n ... \m\ U.Vi, \iiV> ... Ofil ... »/•)() ... !)ri8 ... »/)7 0.')I-0/5» ... O.'Ki ... \)M ... 067 ... i)6« ... 068 ... 0'>7 ... 1)61 ... 068 . 060 ... 0(10 ... «;to ... o:u» ... o;u ... 1)10 ... o;ii ... 060 ... 000 ... oil) ... OH'i ... 071) ... «;ii 000, 007 ... o:n ... o;t4 ... 018 ... 016 ... 041 .. OiM ... o;t!i ... 048 ... \m\ ... 084 Mi m* .. 1002 ... 000 ... 9:io ... 0.1S 4 1) 2 ! > 1124 IVDEX. Merchant Shipping? Act, 1894— eo»<. rAfiK Forgery of Passenger Stenmor Curtiflcnto ... ... ... i'fS Transfer 932 „ Siivings Bank Documents ... ... ... ... 938 Foreign-going Ship, Agreement with Crew ... ... ... 936 „ „ Payment ofWages ... ... ... 937 ,, „ Production of Apprentice's Indentures ... 935 „ Ships and Load Line ... ... .,. ... ... 967 „ „ and Collision Regulations ... ... ... 96.5 „ „ and Application of Act ... .. ... ••• 1900 „ „ Desertion from ... ... ... ... ... 946 „ „ Load Line ... ... ... ... ... 968 „ „ Occaaioning Damage ... ... ... ... 994 „ „ Pilotage Dues ... ... ... ... ■•• 988 „ „ Unsafe, Detention ... ... ... ... 973 „ Countries, leaving Seamen in ... ... ... ... 941 „ Money, Payment of Wages in ... ... ... ... 937 „ Places where H.M. has Jurisdiction ... ... ... 1001 „ Ports, Engagement of Seamen in ... ... ... 936 „ „ Deposit of Documents ... ... ... ... 947 „ „ of Registry, Measurement ... ... ... 934 Foreigner and Certificates of Mortgage ... ... ... ... 931 Forfeiture of Wages, Illness of Seamen ... ... ... ... 939 „ of Wages and Desertion ... ... ... ... 946 ofShip ... ... ... ... ... ... 933 Frauds in Procuring Emigration ,,, ... ... ... 960 Freight, Lien for ... ... ... ... ... ... 977 Grant of Certificate of Competency ... ... ... ... 934 Grades of Certificate of Competency ... ... ... ... 934 Grain Carriage ... ... ... ... ... 970,971 Goods and Lien for Freight, Definition ... ... ... ... 977 „ Discharge of Lien ... ... ... ... ... 977 „ Lien for Freight ... ... ... ... ... 977 „ Provisions as to Deposits ... ... ... ... 977 „ Warehousemen selling ... ... ... ... ... 977 Home-going Ship, Agreement with Crew ... ... ... 936 Payment of Wages ... ... ... ... 937 Harbour, Local Rules and Collisions ... ... ... ... 965 H.M.'s ships. Exemption of ... ... ... .. ... 1001 Illness of Seamen, Wages ... ... ... . ... 938 Imprisonment, Wages of Seamen ... ... ... ... 939 Incapacitated Persons ... ... ... ... ... 932 Indentures of Apprenticeship, Production of ... ... ... 936 Inquiry Courts in Shipping Casualties ... ... ... ... 973 Inspectors of Board of Trade ... ... ... ... ... 1000 Insurance of certain Risks ... ... ... ... ... 978 Interest in Mortgage, Transfer of ... ... ... ... 931 Jurisdiction of Admiralty over Hritish Seamen in Foreign Parts ... 994 „ Provision as to, in case of Offence .. ... ... 993 ,, Offence on Board Ship ... ... ... ... 994 Lascars, Agreement with ... ... ... ... ... 936 „ Relief of Destitute ... ... ... ... ... 941 Last Ship or Name, Penalty for giving False ... ... ... 946 Legislatures, Colonial, Power of ... ... ... 1000,1001 Legal Proceedings ... ... ... ... ... ... 992 „ Emigrants ... ... ... ... 060, 961 I^iability of Beneficial Owner .,. .,. „. ,., ... 937 irts PAOR ... iM8 ... 932 ... 938 ... 936 ... 937 ... 935 ... 967 ... 965 ... 1000 ... 946 ... 968 ... 994 ... 988 ... 973 ... 941 ... 937 ... 1001 ... 936 ... 947 ... 934 ... 931 ... 939 ... 946 ... 933 ... 960 ... 977 ... 934 ... 934 970,971 ... 977 ... 977 ... 977 ... 977 ... 977 ... 936 ... 937 ... 965 ... 1001 ... 938 ... 9.39 ... 932 ... 935 ... 973 ... 1000 ... 978 ... 931 ... 994 ... 993 ... 994 ... 936 ... 941 ... 946 1000, 1001 ... 992 960, 961 ... 937 INDEX. 1125 Merchant Shipping Act, 1894— co»<. I'AOB License to Supply Seamen 960 Life Buoys ... 966 „ Loss of, Liability of Shipowner 978 „ -saving Appliances 966 Lighthou.se Authorities, Expenses, Estiiblishment, Estimate, Mort- gages ... 988, 990, 991 „ Construction, and Powers as to Land, &c 989 „ Duos 989, 990 „ in the Colonies 991 ,, Offences ... 991 Limitation on Shipowner's liability 978 . List of Crew .. 946 Load-line and Deck-lines 966,968 „ Eegulations 966,968 Loading Timber 969 Local Acts and Tonnage Rates ... 933 Lodging-houso Keepers and Seamen ... 944 Logs, Official ... 946 Loss of Certificate of Mortgage 931 „ of Certificate 930 „ of Ship, Eeport of 966 Lost Ship, Seaman's Wages ... 940 Managing Owner, Registration of 932 Marine Boards, Local 946 Marine Store Dealers ... 980 Master and Mate, Grant of Pilotage Certificates ... 986 „ and Pilot, Liability ... 988 „ Certificate of Competency 934 „ Change of 917 „ Penalty on leaving Destitute Seamen 941 „ Remedy for Wages ... 939 „ Removal of ... 973,976 „ to deliver Account 937 Measurement, Surveyor's 933 Medical Attendance, Expenses of ... 944 „ Expenses, Recovery from Owner ... 944 Medicines, Inspection of 943 Medical Inspectors, Appointment of 943 „ Inspection ... ... 943 ,, Practitioner to be carried 944 Medicine, Regulations as to ... 943 Measurement 933 „ Fees ... ... 933 Mercantile Marine Fund 992 Misconduct endangering Life or Ship ... 946 Money, Foreign, Payment of Wages 939 „ Order, Fraudulent 9.38 „ Orders to Seamen 938 Mortgagee not treated as Owner 931 ,, Entry of Discharge ... 931 „ Priority... 931 Mortgage, Certificate of, contents ... 931 „ Loss of Certificate of ... 931 „ not aflfectod by Bankruptcy ... ... 931 ,, of Ship or Share ... ... 931 „ Restriction on Certificates of 931 I ' i ' :h I 5: 1126 INDEX. Merchant Shipping Act, 1894 — cont. PAriK Mortgage, Revocation of Certiflciito of ... ... ... ... 931 „ Rules as to Certificate of ... ... ... ... 931 „ Transfer of Interest in ... ... ... ... 931 Name of Ship, Rules as to ... ... ... ... ... 931 National Character ... ... ... ... ... ... 932 „ Debt Commissioners and Savings Banks ... ... 938 Naval Court Abroad, Constitution of ... ... .., ... 976 „ „ Olwtrueting Investigation ... ... ... 970 „ „ Officers' Payment... ... ... ... 977 „ „ Provisions applicable ... ... ... 976 „ ■ „ Referees ... ... ... ... 977 „■ ■ „ Report of Proceedings ... ... ... 976 „ „ Summoning Court ... ... ... 976 „ „ Survey . ... ... ... ... 976 „ OflRcer's Certificate ... ... ... ... ... 934 Navy, Volunteering into ... ... ... ... ... 943 New Certificate, Power to Grant ... ... ... ... 930 „ Registry, Ship altered ... ... ... ... ... 931 „ Registration on Change in Ship ... ... ... ,.. 93'2 Notes, Advance, Payment of Wages ... ... ... ... 937 Oflfence, Abroad ... ... ... ... ... 994,995 „ Entry in Log ... ... ... ... ... 945 ,, Prosecution of, in British Possession ... ... ... 998 Offences on Board ... ... ... .,, ... ... 945 Officer, Certificate of Competency ... ... ... ... 934 „ Public, and Legal Proceedinj,s ... ... ... ... 938 Officers, Naval, Certificate of Comjjetency ... ... ... 934 OflSeial Log ... ... ... ... ... ... 946 „ Entry of Collision ... ... ... ... 906 0. in C, Alteration of ... ... ... ... ... 1001 „ and Application of Act to Foreign Ships ... ... 1000 Order for Sale of Ship ... ... ... ... ... 930 „ in Passenger Steamer ... ... ... ... ... 949 „ of Court Transferring Ship ... ... ... ... 930 Owner's Claim to Wreck ... ... ... ... ... 979 Owner and Pilot, Liability ... ... ... ... ... 988 ,, Bankruptcy and Mortgage ... ... .. ... 931 „ Beneficial ... ... ... .. ... ... 932 „ British Ship, Qualification of ... ... ... ... 927 936 It . 931 • *• 932 • 1* 939 • •• 935 t • ■ 930 • •■ 978 .11 992 930 , 931 943 , 951 ,,, 936 • 1 . 944 • II 940 • •* 940 1 .* 940 • •1 940 .11 940 • •• 941 • • . 941 , , , 931 1000, 1001 ... 930 ... 931 • *> 937 ... 1001 ... 930 ... 971 ... 988 ... 933 ... 936 ... 984 ... 984 ..> 978 i , 1128 INDEX. Morchant Shipping Act, \89i—co>it. Recovery of Pilot Duos „ of Wages ... Refusal to Work, Wages Register British Ship, Obligation to „ of Deserters „ of Seamen ... „ Transferof ... ,, Tonnagf, Rules for ascertaining Registered Tonnage r.nd Rates Registration Procedure „ of Alterations in Ship Registry Anew when Ship Altered „ Certificate ... „ Custody of Certificate „ in Colonics... „ of Transfer of Ship or Share ... „ on Change of Ownership Reeulation as to Load Line for Measurement of Ship ,, New Registry on Alteration to Avoid Collisions... Ke-hearing of Inquiries Relief to yeaiian's Family, Reimbursement ivelll'^tance >r ""'^^es by Money Order ... Rent, "arehok.' omen's Repeal of Ac tt- Requisites for Certificates of Mortgage ... Re- registration of Abandoned Ship Return of Master's Certificate .. . ,, or register of Seamen .. . Returns, Evidence of Alteration „ Forms of Master's Restriction on Certificates of Mortgage .. Revocation of Certificate of Mortgage ... Royal Navy and Property of Seaman Rules for ascertaining Measurement of Tonnage ... „ as to Certificate of Mortgage ,, ivs to Foreign Money ,, as to Name of Ship Safety, Collisions „ Valve Sale by Mortgagee ... „ Order of Court ... ,, Order for, on Transmission to Unqualified Person „ Revocation of Certificate of Sailors' Home and Site Salvage, Agreement as to „ Appeal ,, Apportionment of „ Arbitrators in „ Assignment of, Sale of „ Coast Guard Remuneration „ by H.M.'s Ships It >, Abroad .) .1 Bond ,, ,, Enforcement of Bond ... ... 980 ... 939 ... 939 .. 928 ... 940 ... 946 ... 932 ... 933 ... 933 ... 928 .. 931 ... 931 ... 929 ... 929 ... 934 ... 930 ... 932 ... 968 ... 933 ... 931 ... 965 974, 975 ... 941 ... 938 ... 977 ... 1002 ... 931 ... 932 ... 974 ... 946 ... 932 ... 932 ... 931 ... 931 ... 941 ... 933 ... 931 ... 937 ... 931 ... 964 949, 966 ... 931 ... 930 ... 930 ... 931 .. 947 ... 981 ... 981 ... 982 ... 981 ... 944 ... 984 ... 982 ... 983 ... 983 ... 983 INDEX, 1129 Merchiint Shipping Act, 1894— WH^ Salvage by H.M.'s Ships, False Eepresontations , Forgery ,, Detention of Property „ Disputes ,, Exemption from Stamp Duty ... ,, Jurisdiction of High Court „ of Cargo or Wreck „ of Life „ Receivers of Wreck, Appointment of ,, Sale of Detained Property by Eeceiver ,, Saving Salvage Rights „ Seaman's Right to Receive „ Valuation of Property Savings Bank Accounts ,, Allotment of Wages „ Expenses of „ Forgery of Documents ,., „ Board of Trade ... Schedules of Act ... ... ... Scorbutics, Anti, Supply of, in Colonies... Seamen, Accommodation Sea Service, Apprenticeship Regulations Seamen Carried under Compulsion, Discipline of , „ Certificate of Competency ,, Colonial Porta „ Debt of, Recovery of ... ., Deceased, Deposit Property of .. „ Discharge of „ Discharged Abroad, Certificate ... ,, Destitute, Penalty on Master ... „ Forcing on Shore ,, Forfeiture of Wages ... „ Left Abroad „ License to Supply ,, Lost with Ship, Recovery of Wages ,, Medical Inspection of .. . „ Money Orders ,, Protection of „ Rating of ,, Registration of ,, Right to recover Wages and Salvage „ Wages, Right to, Commences ... Sea Service Apprenticeship Share, Transfer of ... Settlement of Wages ... Ship, Transfer of, or Share „ Papers and Payment of W^nges ... Shipowner, Consolidation of Claim „ Landing Goods „ Liability of Signals of Distress ... „ Private Solicitation of Lodging-house Keepers ... Steerage Passengers, Regulations as to ... „ „ Right of Contract ... I'AOB 984 984 981 981 984 984 981 980 984 981 983 938 981 938 937 938 938 938 1002 943 944 935 946 934 936 944 938 940 936 941 941 941 939 941 935 940 943 938 944 936 946 938 938 935 930 937 930 937 978 977 977 966 1000 944 958 960 1130 INDEX. Murchant Sliipping Act, 1894 — cntit. I'Aob Stowaways, Penalty on ... ... ... ... ... 946 Suing as to Allotment ofWagcs ... ... ... ... 937 Suits for Wages ... ... ... ... ... ... 939 Summary Conviction, Appeal ... ... ... ... ... 993 „ Jurisdiction Acts ... ... ... ... ... 002 „ Proceedings for Wages ... ... ... ... 939 „ ,, ^limitation of Time ... ... ... 903 ,, Remwlies against Deserters ... ... ... ... 945 Superintendents and Payment of Wages ... ... ... 937 ,, Assistanco to Apprentice .., ... ... 935 Supplying Seamen, I/iccnso for ... ... ... ... 935 Surveyors ... ... ... ... ... ... ... 933 Survey Court, Appeal to ... ... ... ... ... 048 „ of Emigrant Ship ... ... ... ... ... 949 „ of Passenger Ship — Colonial ... ... ... ... 048 Surveyors of Ships ... ... ... ... ... ... 999 Ti-')er Loading ... ... ... ... ... ... 969 Terms used, Definitions ... ... ... ... ... 1001 Temporary Passes ... ... ... ... ... ... 930 Tonnage Deductions Allowed ... ... ... ... ... 933 „ Levy of Bates ... ... ... ... ... 933 „ Measurement ... ... ... ... ... 933 of Ships, Fixed ... ... ... ... ... 933 Transfer of Interest in Mortgage ... ... ... ... 931 „ of Registry ... ... ... ... ... 932 „ of Ship by Order of Court ... ... ... ... 930 „ „ or Share ... ... ... ... ... 930 „ „ Power of Court to Prohibit ... ... ... 930 Transmission of Certificate of Survey of Passenger Ship ... ... 948 ,, of Documents to Registrar by Superintendents ... 947 „ of Property in Ship ... ... ... ... 930 ,, and Publication of Documents ... ... ... 1001 Trinity House ... ... ... ... ... ... 987 Trawlers ... ... ... ... ... ... ... 904 Trusts ... ... ... ... ... ... ... 932 Unclaimed Property of Seamen ... ... ... ... 941 „ Wreck, Notice of ... ... ... ... .. 979 Unqualified Person, Transmission to ... ... ... ... 930 Unsafe Ships ... ... ... ... ,., ... 967 „ „ Costs and Damages ... ... ... ,,. 972 „ „ Detaining ... ... ... ... ... 972 Unregistered Ship ... ... ... ... ... ... 928 Unseaworthy Ship, Sending to Sea ... ... ... ... 971 „ „ Survey of ... ... ,.. ... 973 Volunteering into Navy ... ... ... ... ... 943 Voyage, Colonial ... ... ... ... ... ... 948 „ Length ... ... ... ... ... ... 948 Wages, Account of ... ... ... ... ... ... 937 ,, Accruing, Imprisonment of Seamen ... .. ... 939 „ Advance Notes ... ... ... ... ... 937 „ Allotment Notes ... ... ... ... ... 937 „ Ascertaining Amount of Forfeiture ... ... ... 946 „ Charge on ... ... ... ... ... ... 939 ,, Commencement of Right ... ... ... ... 938 „ Costs ... ... ... ... ... ... 939 „ Deductions from ... ... ... ... ... 937 INDEX. 1131 Merchant Sliipp iiig Act, \8di~ vont. I"A(!K Wmrcs , Deductions, Payment to Superintendent ... ... 946 »» Foreign-going Ship ... ... 937 l» Forfeited for Desertion ... 946 »» Freight ... 938 it Homo-going Ship ... 937 )J Master's Remedy ... 939 »» Payment ... 937 »» ,, before Superintendent ... ... 937 It „ Ship Papers ... ... 937 i» Questions aeffeting Forfeiture ... ... 946 »f Uecovery of, Seaman Lost with Ship ... 940 ,, Romittanee by Money Order ... 938 ») Restriction on Sale of ... ... 939 »» Right to Recover ... 938 *» Seamen Discharged Abroad ... 941 )» Settlement of... ... 937 1) Suing on Allotment Note ... 937 » Suits for, Restriction on ... 939 •» Summary Proceedings for ... 939 ft Superintendent and Payment of ... 937 }} Time of Payment ... 937 )» Wreck ... 938 Warehousemen's Protection ... ... 977 „ Rent .. 977 „ ■ Sale of Goods ... 977 Water, Provisions, as to ... 943 Weights and Measures on Board ... 943 Will of Deceased Seaman ... 940 Witnesses and Wreck ... 979 Wreck , Admiral Interfering ... ... 979 » and Salvage ... 978 If „ Definition of ... 978 )» „ Duty of Receiver ... 978 t> Board of Trade Purchasing ... 979 i> Claim of Owner ... 979 i> Dealing with ... 979 >» Delivery of Unclaimed ... 979 n Disputed Title to Unclaimed ... ... 979 ») Disposal of Unclaimed ... 979 * . ' »i Fixamination of Witnesses ... 979 >9 Money Order, Payment Lost Order ... 938 » Notice of Unclaimed ... ... 979 fl Notice to Receiver ... 979 l> OiFences in Connection with ... 980 II Passage over Land to Reach or Assist ... ... 978 II Penalty on Taking ... 979 II Powers of Receiver ... 978 II Provisions as to ... 984 II Receiver Absent, Exercise of Power ... 979 II Right of Crown ... 979 II Sale of, by Receiver ... ... 979 II Salvage of ... ... 981 II Suppressing Plunder ... ... 978 II Valuation of Salvage ... ... 981 II Wages of Seamen ... 938 Merchant Shipping Act and Behring Sea Award ... al7 1^: lit ■ 1132 INDEX. Meredith, C. J., on the Power to Prohibit Sale of Intoxienting Liquors Message to H. C. of Cnnadii on Dismiswil of Licuteimnt-Guvurnor ... Military Forces, CommHnd of, in Queoii „ Services ... Militia. See Military Forces. Milk, Frauds in the Supply of, Dominion and Provincial Acts Mill, John Stuart, quoted Minerals and Railway Land ... Mines nnd Minerals l)clonging to Provinces ,, „ and Public Lands Minister, Duty of, when Executive ... „ of Agriculture and Patents ... „ of Finance „ of Justice and Provincial Acts „ „ Opinion on Provincial Acts „. „ of Ontario and Quebec Ministry and Passing of Disapproved Bin „ Illegally Dismissed by Lieutenant-Governor ... Minute liegulations of Trade Miramichi River Salmon Fishery Miscellaneous Provisions ... Misdemeanor, Offence created by Provincial Legislature, a Protest by Dominion Mis-statements uf FactM on Appeal ... Money Bill^* and House of Lords in England „ „ Senate of U.S. ... ,, „ to Originate in House of Commons „ Borrowing ... „ Paper, &c. ... „ Penalty for Selling Liquor „ Vote, before Passed must be Recommended by Governor-General „ „ in Provincial ABsenblies ... Monkswell, Lord, on Dominion Occupying the Ground First Montserrat, Appeal from ... Morality, 0£fences against, Enacting Laws as to Morocco, Appeal from Mortmain Law of Quebec ... Municipal Acts, Old „ By-Laws, force of „ Institutions and Tax on Dominion, Official ... ,, „ Provincial Ijegislatures, Not ,» „ Sedgewick, J., OP „ „ Strong,J., on ... „ „ sub.-sec. 8, sec. 92 „ Law of Quebec ... „ „ Closing Public Houses on Sunday „ Prohibition of Sale of Liquor „ Revenue and Legislation by Canadian Parliament „ Right to Impose Penalty for Delay ... „ Revenue, Raising „ Taxation Municipalities in Quebec ... „ Merged, Repeal of By-laws Municipality, Adopting Canadian Temperance Act „ Clause Examined by Gwynne, J. S. C, Murder, Appeal from Conviction for ... Muscat, Appeal from I'AdK , IRl , 28 \t) . GO , 32a 11-) 123 . 409 12!i 89 80 543 51 33 543 42 28, 29 . 152 72 637 107 .. 430 .. 25 .. 25 .. 25 69, 123 .. 74 .. 144 .. 25 41 .. 147 ... 1012 ... 106 ... 1012 46,238 ... 218 ... 1075 70 1,293 ... 187 ... 166 54, 124, 142, 150, 1069 .., 245 161 ... 162 .. 132 77, 126 .. 126 ,. 75 .. 201 .. 126 ,. 123 ,. 178 ,. 418 . 1012 INDEX. 1133 N PA(1K Napoleon Coilc in Quebec ... 4 Natal, Appeal from ... 1012 National Hnd General Concern, Hflo. 01 applies to ... lOf. „ Defence Works and Dominion ... 486 Naturalization ... ... 100 » Act . 100, 764, 801 „ and Treaty with U.S. ... 802 n American Cases ... 101 „ by the Provinces ... 101 „ in Canada ... ... 770 Naval Defence, Colonial Act of 1866 ... ... 734 „ Force, Command of, in the Queen 11 „ Volunteers in the Colonies ... 734 Navigation and Commerce, Old Law ... ... 091 „ and Shipping ... 70 ,, and Trade, Power over, and Chincso Immigration ... 64 „ Laws of Great Britain and the American Colonies ... 64 „ Obstruction to, and Dominion 66 Negative Decision where Senators Equal ... 16 Negligence of Railway Company a..d Appeal ... 423 Negotiable Instruments, Timber Receipts ... 297 Nevis, Appeal from ... 1012 New Dominion Court, Power to Establish 103 „ Provinces, Forming . . 3 „ Territory and Senate 665 „ Trial 466, 466 „ „ Ordered in Canada ... 434 New BrnnSWick, and Money Bills 41 „ „ and Solicitors 721 „ „ Appeal from 396, 1012 „ „ Continuance of Legislature of ... 41 „ „ District for returning M.P.s for H.C. Canada . 18 „ „ Electoral District ... 18 „ „ Executive Authority 31 „ „ Grant to... 634 „ „ Judges and Judicature ... 402 „ „ Lands ... 72 „ „ Limits and Boundary 7 „ ,, Liquor Legislation Examined ... 194 „ „ ,, License Conviction (Russell's case) 129, 162 „ „ Lumlier Dues ... 536 „ „ Memliers for, in H.C. Canada 16 „ „ Payment of Interest to ... 633 ,, „ Representation in H.C. 4 „ ,, Seat of Executive Government ... 36 „ „ School Case, Judgment of James, L.J. ... 366 „ „ School Question, Lord Carnarvon ... 336 „ „ Separated from Nova Scotia... 6 „ „ Senators... ... 13 „ „ Tax on Income ... 75 New Borneo, Appeal from ... ... lOlO 1134 INDFX. Newfoundland, Appeal from „ ftiyn „ Constitutioniil Act, 1842 M Entry into Union „ History of ... ,,, ,,, ,,. „ Judicature Act New Guinea, Appeal from ... New Hampshire T-aw as to llrcwer'N Liconso ... Now South Wales, Appoal from New Zealand, Appeal to P.c. from ... Niagara Waste Landw, Property in iV^iger Protectorate, Appeal from Non- Attendance of Senator Non-Sectarian 'Schools North-West Territories (Can.), Appeal to J.C. from „ „ Jlarrister and SolicitorH „ „ History of ... „ „ Justice in. Old Act „ „ Power to make Ordinances „ „ Repro.sontatives in H.C. „ „ Senators North- Western Provinces (India), Appeal from NOSCitur a Soeiis Rule Notes Promissory ... Notice of Dismissal of Lieutenant-Qovornor ,, of Appeal „ to various Persons in Special Refcrcnco Cases " Notwithstanding anything in, &c.," the Phrase Nova Scotia, Appeal to P.O. „ Assembly and Punishment for Contempt ... „ Barristers and Solicitors „ Baronets „ Constitution of Legislature of „ Debt... „ Districts for returning M.P. for H.C. Canada „ Executive Authority , „ B^patriation of Inhabitants „ Grant to „ History of . „ Judicature „ Limits of „ Liquor Act „ Money Bills ... „ Payment of Interest to ... „ Prohibition of Liquor Sales „ Province of the Union ... „ Representatives in H.C. ... „ Seal, the „ Seat of Executive Government „ Senators „ Shipping Acts ... Nuisance, General Law, Power to pass by Dominion Nyassaland, New Name ... VMIV nofi, 1(11 J ... 74 ... 00" ...3, 540 (1 ... TjOI ... 1012 ... 1(10 ... 1009 ... 1012 ... fi24 ... 1012 1.^ 338-;M2 390, 1012 ... 721 r, ... 72i) ... 368 \ i;t ... 1013 ...62,57 ... 70 ... 2» 482, 1008 ... 401 ... 44 396, 1013 ... 1070 ... 721 5 ... 41 ... 533 ... 17 ... 31 6 ... 534 5 ... 402 7 ... 120 41 ... 533 ... 103 3 4 ... 543 ... 3.5 ... 13 ... 71 ... 104 ... 1013 • " INDEX. 1135 Apt PAOR Oath of Allogianco ... ... ... ... ... ... .,, /i37 .. 1. ,. Act ... ... ... ... ... ... 773 I, „ Lieuton.int-Uovol'tiors ... ... ... ... ... 30 Object of 11.N. A. Act ,,. ... ... ... ...1,31,150,203 Obatructiou ill Rivom ... ... ... ... ... ... 73 Occupation of liftndH by Indians ... ... ... ,., ... 100 Offence aguinHt Dominion and Provincial Temperance Acts ... 123, 101 » „ Public Morality ... ... ... ... ... lOO Offences in the Colonics, Prosecution of, under TVTerchant Shipping „ on the High Meas, tried under Mereh i.' .'ihipping /ict tried within Jurisdiction of Admi' My, Oul Act ... Offender under Behring Sea Award, Arrest of ... Offenders and King's Commission Office of Lieutenant-Governor, Dismissal from ... Officers Appointed by Ontario and Quebec ,, Executive Powers of ... „ New ,, (Provincial) Salaries ... „ Transfer of, to Canada Old Act, Power of Province as to „ Acts, Appendix A „ „ Summary of ,, Bankruptcy Livws Examined „ Boundaries of Quebec „ Calabar, Appeal to Privy Council ... „ Provinces of Canada Ontario, Act imposing Ro'itriction r-n Brewers not ultra vires „ and Money Bills „ „ Quebec Clergy Case „ „ „ Consolidation of ,.. „ „ „ First Meeting of Legislatures „ „ „ Debt« ... „ Appeal from „ Appointment of Att.-General for „ Assemblies, Yearly Sesfiion of „ Assets „ Assignment and Insolvency Act „ Barrister refused to bti allowed to Practise „ Company in Liquidation „ Districts returning M.P. H.C. Canada ... „ English Solicitors ... „ Executive Council „ Grant to ,., „ Jurisprudence „ Legislative Power ... „ Legislature, Continuance of Laws „ License Laws „ Limits „ Liquor Law of 1890 Examined „ Members of H.C. Canada „ Number of Legislative Members ... 998 ... 901 ... 703 ... 023 ... 704 28 ... S42 ... 643 ... 641 ... 123 ... 641 74,637,1043 ... 666 ... 212 ... 304 ... 666 ... 1014 4 ... 65 ... 41 ... 275 4 ... 38 ... 632 3C6, 1013 ... 542 ... 40 ... 532 ... 78 ... 420 ... 88 ... 17 ... 721 ... 30 ... 534 ... 309 ... 35 ... 39 ... 1042 6 ... 1064 ... 16 ... 35 i\ f ( i. i i 1 L L 1136 INDEX. Ontario — coiu. vmiv. „ IVnitontiary ... ... ... ... ,. ... ol.') „ lioprcsentAtives in Dominion II.C. ... ... ... ... 4 „ Right to Timber growing on Indian Roservos ... ... ... 100 „ Seat of Executive Government ... ... ... ... .35 „ Senators ... ... ... ... ... ... ... 13 „ 8p )> »» u 129, Pagodas, Value of ... Panorn" a, Appeal from Paper Money Paragraph i" citizens' insurance Company v. Parsons dissented from Pardon, I'owor of, Reference to, liy Gwynne, J.... Paris, Treaty of ... Parisli Courts „ Schools of New Brunswick Parliament as a Court of Record „ of Canada and Deputy Speaker „ Appropriation of Public Funds ... .. Composition of „ Dufferin, Ijord, and „ Exclusive Authority of ... „ Laws for Agriculture and Immigration „ Lieutenant-Governor's Salary „ Limitation of the Power of „ „ Payment of Judges „ •, Privileges, Powers, and Immunities of „ „ Protection of Fisheries ... „ I, Provincial Liquor I^iivws „ ,. liepresentation of New Territories in „ „ Seiseil of the Jurisdiction ,, „ Western Lakes and „ „ Yearly Session of „ Delegation of Powers „ Kxisting, and Adjustment of Representation ... „ How Fii'sl Called Together „ of Ontario, Fii-st „ of Paris, Jurisprudence of I, Powers of „ I'rotuclioii of Persons Publishing Proceedings Parliamentary Privilege and Libel ... Parsonages to be Erected, Old Law ... Particulars absent, doubtful if Leave granted to Appeal ... Parties, Judicial Committee may direct other I'artius to intervene ... Party in Power, to them (Joveruor-Ueneral is bound to give his Confidence Patent Laws a Matter of Policy Patents ... Patterson, J., on Parliament of Canada Legislation Payment of Oovernor-Genenil „ to Provinces, Form of Payment Peace, Order, and Good Government, Phrase exiunined ... 61, 151, 10-12, 1007 „ » ,< Competency of Dom. to alter Criminal Liw IT) II >, ,. Laws for ... ... ... 129,110,1043 a 2340. 4 G 1010 1014 74 10G(i l(i9 4 301 347 1079 1003 4HI) II 30 44 389 30 800 394 11 72 140 ... 799 ... 189 ... 74 ... 12 ... 131 . 24 ... 22 4 ... 206 ... 43 12 30, 1079 ... iiHr, 443, 444 y0,4()« 30 90 ... 88 ... 321 3 ... 534 1138 INDEX. Peacock, f iv Bnmos, on tho I'hrnso commoncing '•' Notwithstanding ' Pedlars iii'l nnwkcrs. Prohibition of ... Penalties find Dominion Legislation ... „ and I'orfoiturcs, British Court and Dominion Act „ Hard Labour for Soiling Liquor vitliout Liconso „ for Piraey of Copyright „ for Soiling Liquor without a License ... „ Imprisonment, &c., Imposition of Penalty nddcd to Tax not Interest „ on Fraudulent Traders in Canada Penitentiaries Pensions to Colonial Governors Perjury, Appeal from Finding of „ Punishment for, in Dominion Persia, Appeal from Persian Gulf. Appe.Tl from ... Petition, Election, and .ludicinl Coramitteo „ ofDoleanco „ of Rights ... „ Petition to Appeal, Time Phoenix Ifilind, Appeal from ... Phrase " All matters," &c., sec. 91 B.N.A. Act, Expla . ' ,, commencing "Notwithstanding anything," &c., Sir U. on ... ... ... ... ,, Dominion Parliament first occupying the ground „ Dominion's inclosure fenced in „ Federation Act exhausts whole range of legislative power ... „ General scheme of the B.N.A. Act „ In or for a province ... „ Language read together and modified to agree ,, of Selborno, Lord, on Jurisdiction of Dominion and Peovinces ,, „ on whi\t was clearly local and private ,, Peiice, order, and good government ,, Promotion of public order, safety, anl morals „ Property of the Dominion „ Raising of money by any system of taxation, direct or indirect ,, Settlement and Immigration of Land ,, Straining them to their widest conceivable extent ,, Trench upon the exclusive authority of Parliament Physicians, KnglLsh, in Canada Pilotage, ''^''i' Merchant Shipping Act. Plenary Authority bestowed on Provincial Legislatures ... „ Powers of Ix'gislatures „ ,, of Provinces Plenum Dominium in Crown in Indian Ijvnds ... Poison, T'o'^^er to I'roliibit Sale of Poisonous l^rugx. Sale of, Consi''.ire0 ... 112 22, 50 109, 1071) ... 96 ... 199 ... 133 ... 73 ... 324 ... 188 ... 104 ... 125 ... 8.'i9 ... 271 68 ... 64 Political Armngements included in Trade and Commerce „ Friends and Gnvcrnor-Ocncrnl „ Organization and Sovereignty Poor Kate, Special Leave allowed Population and Represcntjition in H. of C. Port Phillip, Old Possessions of the Queen and her Prerogative ... Postal Service „ „ in the Dominion Power Distrilnition of „ Executive, of Canada ... ,, Legislative, Ontario ... „ ,, Quebec ... ,, Negative Restriction „ of Canadian Parliament „ of Colonial Legislatures „ of Dominion „ ,, and Provinces Prohibiting a Trade ... „ of Parliament „ of Governor-General ... „ of H.C. England and Colonial Ijcgislaturcs „ of Lieutenant-Governors of Quebec and Ontiirio ... „ of Municipalities „ of Provinces, Lord Selborne on „ of Provincial Hailway to Cro.is Dominion Railway „ „ Legislature „ of Quebec Legislatare, not merely a nudo Power .. „ of Sovereign and Governor „ Regulation and Prohibition Practice, Canadian Solicitors Practising in England „ Suspending from, Advocates ... ,, Words as to Education Precedence of Counsel, The Bitonnier „ of Queen's Counsel Pre-eminance of Dominion ... Pre-existing Powers of Governor and Ontario Pa'scrved Preference by Insolvents, Act as to ... „ Payments to Crown and l-'rcnch Law Prerogative and C'ommissions of Oyer and Terminer ,, Allowing an Appeal of Crown of the Crown and Election Petitions „ and Criminal Ca.ses ... „ to Appeal ... ofMercy of the Queen in each Province „ when not Limited ... Power and Lieutenant-Governor ... to Deprive the Crown of its, the Legislation must bo Irrc sistiblo Preservation of Good Order, Provinces may make Reasonable Police Regu- lations 161, 1043 Presumptions, none that Dom. Leg. has Exceeded its Powers ... ... 19 Princo Edward ii Local Act, what necessary to show by Dominion „ Land and Inspector of Fishing Privileged Communications, Special Lciive to Appeal Privileges as Regards Education I'AflE Rivers, Upper Prohibition— co»<. '"' „ Crtses in U.S. ... „ „ no Guide for Canada .. . „ Catching Seals, Argument Conditional Liquor Case of all Liquor Traffic of Manufacture, Strong, C..J. of Printing English Copyright Books in Canada ,, of Sale of Goods Prohibitory Mejisures, Ratepayers deciding Promissory Notes... Promotion of Eailway ... ... ... ... ... 126, ,, of Temperance ... Proof >^' J'rovincinl Tax Properties, Assets lietween Upper and Lower Canada Settled by Arliitnitiou Property and Civil Rights, sec. 92 „ „ „ and Sale of Liquor ... „ „ „ Contrast with Patent Legislation „ „ „ Controlled by Regulation of Commerce „ „ ,, Examined .. ... ••■ 63, „ „ „ Explained ... ... ••• '33, „ „ „ in Queliec, Rules of French Law ,, and Dominion Legislation ... ,j and Life, Provinces can Legislate to Protect „ as Distinct from Regulation of Fishing „ Disqualification of Senator ... „ in British Possession and Finance Act „ in Subject, and Power to liegislate for „ of Fish in Great Lakes „ of. Phrase Explained „ Public Debt and ... „ Taxation by Municipalities ... „ Transferred from Provinces to Canada Propositions of Confederation Prosecuting Appeal, Time ... Prosecution of Oflfences under Merchant Shipping Act iu the Colonies Protection of Salmon Fishings „ in the Colonies of Copyrighted AVorks Protestant Clergy, Support of Protestants and Education ... Province and Turnpike Road Trust ... Provinces and Crown „ „ Dominion, Beneficial Interest of the Crown in all Lands within its Boundaries „ ,, „ Co-ordinate Authority ... .., 1, „ „ ,, Distribution of Powers between „ ,, „ Double Legislation ... ... ... 60, ,, ,, Incorporating the same kind of Company „ „ Marriage and Divorce „ Land Companies „ Land for Agriculture and Immigration „ Liquor Licenses, Nova Scotia Act ,, Prerogative of Queen ... ... ... ... 1. „ Naturalizjition Autonomy of .. ... . . ... ... 1, 31; Census of, to be distinguished »» It » It II II 11 68 61 200 166 162 69 164 93 178 66 76 225 149 156 545 257 151 90 183 238 140 4 73 106 72 16 926 99 73 97 52 75 486 321 410 998 72 863 559 332 529 31 98 ,293 43 165 46 48 243 389 126 293 101 293 7 PipfPOTW 1142 INDEX. Provinces— fow'. '■^'"■' „ Common Interest ... ... ,,. ... ... 1> '-iuy „ Creiiting Courts ... ... ... ... ... ... li-'* Credit of ... 1^3 „ Disullowance of Acts .. ... ... ... ... ^ „ Dominion and Municipiil Institutions, Rights debated ... ... I'iS „ Executive Power ... ... ... ... ... •■• '■^7 „ Exelusivi! Powers in, Lord Selborne ... ... ... ... tl „ Fidonited with Common Independent Interest ... ... 1, 29;{ „ Forming New ... ... ... ... ... ••■ 3 „ in Canada, Esttiblishnient of ... ... . . ... 701) „ Independence of ... ... ... ... .. 1,2!)3 „ Legi.slate as to Dangerous Establisliment ... ... ... 104 „ Legislative Assembly, Summoning ... ... ... ... 38 „ Legislature, Power to Amend ... ... ... ... Ill „ Privileges of Assembly ... ' ... ... ... 36,1079 „ " Property of," Explained ... ... ... ... ... 97 „ Eepealing Act affecting two ... ... ... ... 273 „ Territories outside ... ... ... ... ... 3 Provincial .'^ct and Dominion Repeal of same ... .. .. ... 1070 „ and Dominion Character of Lieutenant-Governor clashing ... 42 „ Act and a Local matter ... ... ... ... ... 157 „ „ and Local Associations ... ... ... 44,330 ,1 „ to carry out Dominion Act, Validity of .. ... ... G.5 ,1 „ and Obstruction to Navigation ... ... ... ... 06 „ ,, as to Rivilway beyond Boundary ... ... 67,22;') „ „ Repeal of ... ... ... ... .. 1042, 1070 „ Acts and Imperial Acts ... ... ... .., ... 32 „ ,, and Governor-General ... ... . . ... 51 I, „ declared ultra vires ... ... ... ... ... 33 „ „ Validity of ... ... ... ... ... ... 48 I, Bankruptcy Law... ... ... ... ... ... 78 „ Bar ... ... ... ... ... ... ... 393 „ Bills, Provincial Associations created by ... ... ... 42 '„ Bills and non-assent ... ... ... ... ...41,42 „ Company, Incorporated by Dominion ... ... ... 45 „ Companies, Incorporation of ... ... ... ... 234 „ Consolidated Revenue Fund ... ... ... ... 536 „ Constitutions ... ... ... ... ... ... 27 „ Courts ... ... ... ... ... ... .. 308 „ Criminal Law and Liquor Law.s ... ... ... ... 134 „ Debts and Assets ,. . ... ... ... ... ... 520 „ Districts for Election of Members of H.C. ... ... ... 17 „ Ferries ... ... ... ... ... ... ... 74 „ Governments not subordinate to Dominion .. ... 31,293 I, „ Right of Payment before other Creditors ... 31, 293 ,1 Jurisdiction, exclusively assigned ... ... ... ... 20 I, „ over Liquor Laws ... ... ... 162,1042 „ Laws and Dominion Laws ... ... ... 235,1042,1064 >i ,, „ ,, Remedial Acts ... ... ... ... 334 ,1 „ „ Election Petitions, Hearing ... ... 40,308 I, „ „ Insult to Members of House of Assembly ... ... 1079 >t )i » Sale or Storage of Gunpowder ... ... ... 104 „ „ Insalubrious Establishment, Power to Regulate ... ... 104 II „ of Bankruptcy, Validity of ... ... ... ... 303 ,. ,, Limiting Licenses ... ... ... ... ... 00 „ „ Marriage Licenses ... ... ... ... ... 256 nijHiiiiMytfHMi ■MM INDEX. 1143 Provincial— co»i!. „ Laws, Obstruction of River... I, ,, Protection of Fisheries ,t „ Riiilway Company PAGE GO, 71 .. 74 225,329 „ Sanctioned by Dominion Law, not a Delegation of Powers ... 103 Legislation ... ... ... ... .. 104, 132 II „ and Appeal II „ ,, creating Offences Mi.sdenieanor8 „ ,, „ Criminul Law ... ... ... ••• „ ,, ,, Dominion ... ... ... . . „ ,, „ Forgery ... „ „ „ Imperial Legislation „ „ „ Prohibition of Sale of Liquor ... „ „ „ Salmon Fishing „ „ as to Fines and Forfeitures ., „ for Education ... „ ,, to Prevent Fraud in Trade, and Danger to Life or Property ... ,, „ where no Dominion Legislation ... „ Legislative Power strictly Limited ... „ Legislatures and French and English Languages „ „ ,, Imperial Power „ „ „ Mandates from Imperial Parliament ... „ „ „ Eecovory of Debts ... „ „ Delegating Authority to Commissioners ,, ,, „ ,, Municipalities „ „ have a concurrent Power in Taxation ,, „ Sale of Arms ... „ „ Status of „ „ Their True Character ... ,, License for Gun ... „ Liquor Law and Canadian Temperance Act, in same Province „ Olyects, Boom in Kiver ,, ,, and Incorporation of Companies „ Officers' Salary ... „ Plenary Powers ... „ Power of Taxing Deeds ,, ,, to Repeal Acts ,, ,, to Tax Capital of Biinks „ Powers, How to Examine ... „ „ not to bo Absorbed by Dominion „ „ to Revive Old Acts... under .sees. 13 & 10, 92 „ Property „ Public Debts, Interest on ... „ Purposes, Taxation „ Railway „ „ becoming a Dominion Railway „ Revenues, Riisiug „ Reformatories and Prisons ... „ Representation in H. of C, Adjusted every Ten Years .. „ Reptal of Old Act •„ Revenue „ Right to Crown Lands in Province ... „ Tax on Dominion Officer ... Provision "f Parliament of Canaila apiilyiiig to Legislatures of the Provinces ,, made for Admitting other Provinces... 405 108 107 210 107 330 IGl 72 108 832 lOG 44 ... 384 ... 542 ... 50 ... 142 ... 78 ... 138 ... 70 ... 53 ... 133 1, 21)3 ... 112 ... 11(1 ... 101 CO 2 ... 123 ... 293 ... 120 384, 1043 ... 75 ... 50 ... 48 74, 1042 4G, 1069 ... 533 ... 485 ... 113 ... 225 ... Ill ... 126 ... 123 ... 23 ... 280 ... 122 ... 94 ... 70 41 2, 799 jjik«jVW?«8»Wt?Ji«HW«»!«i5iitii;»5mj«Hf! 111.4 INDEX. Provision— to«<. „ SimilHr, in Provincial nnd Dominion Act Proviso waving I'rorogative ... Public and Uight to Fish „ Danger and Carriage of Arms ... „ Debt and Property „ Funds and Appropriation by Parliament,.. „ Harbonrs, Fish in „ Lands, Management and .Sale of ,f „ of Canada and Taxation „ „ .Sale of „ Legitilation and Provincial distinguished... „ Money in Banks „ Morality, General Laws on this subject in Dominion ,, School Act of Manitoba „ , „ analysed „ Service, Provincial Revenue Fund „ Works Loan of Canada „ Wrongs and Nuistinees, Power to pass Laws Punishineilt by Fine, Penalty, or Imprisonment for Contempt by Assembly for Selling without License of a Criminal Nature for Breach of Liquor Laws on Prisoners tried in Colonial Courts Wrong, inflicted. Appeal Purchase uf >>» island. Provincial or Dominion Act „ of Indians' Land, Requisites... I'AdK 50 • .. ... 83 . .. ... 73 . .. ... 146 . .. ... 52 . . . ... 486 ... 73 . . . ... 123 ... 535 . «. ... 123 . .. ... 72 31, 283, 293 n ... 106 . .. ... 333 ... 380 . •» ... 530 • •• ... 809 . I . 62, 104 .. ... 324 36, 1079 . .. ... 120 aws ... 102 ... 820 .. ... 414 ... 307 ... 90 Q Qualifications of Legislative Councilloi-s of Quebec 37 „ of Senator ... ... 13 Quarantine and Marine Hospitals ... 71 Quebec ii I'i'ovi nee ... ... 3 >» and English Solicitors , . ... 721 » and Ontario Records ... .. 545 » „ Consolidation of ... ... 1 . 4 » „ Use of Old Names in Documents ... 544 It Debt ... .. ... 632 II Appointment of Att.-Gen. for ... 542 n Appeal to P.C. from ... ... 397, 1013 II Assets ... .. .532 II Assembly, Constitution of ... .. 38 >i „ and Punishment for Contempt 36 »i Continuance of I^ogislative Lvws ... 39 ti Conquest of... ... .. 4 » Counsel, the BAtonnior ... 35 II District for returning M.P., H.C. Canada 17 II Duration of Legislative Assembly of ... 39 n Election of Speaker of liCgislative Assembly ... 40 II Executive Council ... ... .. ... 30 »> First Meeting of Legislature of ... 38 ^Ma MMM iriril S^ INDEX. 111.5 ftuebec— p"»'. „ French Languago „ History of ... ,, Judges „ Ijftw and Company Incorporation „ „ of Municipalities „ „ Prerogative Questions ... „ Legislative Council of „ ,, Councillors, Qualifications of „ Legislature, Voting in ,, ,, Power ... „ Limits „ Liquor Laws „ Local and Private Act „ Money Bills „ Penitentiary „ Priority of Crown in, as to Simple Contract ]Jobts „ Prohibition of Liquor Sales „ Quorumof Legislative Council... „ Representatives in Dom. H.C. .. ... ... ... „ Resolutions... „ Seat of Executive Government... „ Senators „ Speaker of Ijegislative Council... „ Tax on Bank's Goods ,, Taxes „ „ Ontario Funds .. . „ Townships ... „ Vacancy in place of Councillor of „ Voting in Legislature „ Yearly Assembly Queen and Governor-General „ and Her Heirs, Act extends to ... „ and Lieutenant-Governor „ Provisions as to, in Dominion Act „ Senate, and House of Commons, Canada, to make Laws for Peace, Order, and Good Government „ the. Executive Authority over Canada Queen's Counsel and Precedence „ Direction Necessary to the Summoning of Additional Senators „ Privy Council of Canada „ Representative, the Lieutenant-Governor is Queensland ioo9- Question as to Qualifications or Vacancy in Office of a Quebec Councillor to bo heard by Legislative Council ... „ between Governor-General and Lieutenant-Governor, Proper Tribunal to Decide „ to be considered l)etween Dominion and Provincial Acts , „ to Judges in Liqucr Prohibition Case and Answers of P.C, Quorum of House of Commons „ Legislative Council, Quebec ... „ of Senate... PAUB 4 ... 06 ... 3!)3 ... 233 ... 201 ... 40 ... 36 ... 37 .. 37 ... 35 6 ... 163 ... 43 ... 41 ... 51.') 31,283,203 ... 163 ... 37 ... 4, 16 ... 746 ... 36 ... 13 ... 37 ... 68 ... 32 ... 122 ... 646 ... 37 ... 37 ... 40 7 2 7 2 43 7 7,36 14 8 27 1013 37 29 132, 136 163, 1074 ... 23 ... 37 ... 16 ^tiiitNi;i$^M««WWiW«< 1116 INDEX. U I'AdK Railways, Mines, and Minerals ... ... ... ... ... 123 „ and Steamships ... ... ... ... ... ... 221 „ becoming Dominion's ... ... ... ... ... HI „ on Foreshore ... ... ... ... ... ... 300 „ beyond Province .. ... ... .., .., 67,225 Raising Money by any Means ... ... ... ... ... 06 ,, of Money in Dominion and Provinces ... ... ... ... 48 ,, Revenue by Licenses ... ... ... .. ... 126 ,, „ Provincial Powers ... ... ... ... 67,225 Rangoon, Appeal from. ,Sc," Burmnh ... ... ... ... 1011 Ratepayers '"^rtnctioning License ... ... ... ... ... 102 Ratification of Colonial Act ... ... ,.. ... ... 410 Rebellion in Lower Canada ... ... ... ... ... ... 4 Recall of Governor by the Crown ... ... ... ... ... 28 Receipts, Warehouse, see. 19, sub-sec. 15 ... ... ... 73, 290 Record, Court of, Parliament ... ... ... ... 36,107!) Records, Delivery to Quebec or Onttirio .. ... ... ... 545 „ of Canada and Reserved Bills ... ... ... ... 27 Red River Settlement, Rupert's Land .. . ... ... ... ... 5 Reduction of Representation in H. of C. ... ... ... ... 24 Reference, Special, to Courts ... ... ... ... ... 401 „ of Constitutional Questions, Supremo Court ... ... ... 31)5 Referring Case back to Court below ... .. ... ... ... 40(i Reformatories iind Prisons ... ... ... ... ... 123 Register of Members of Companies in British Colonies ... ... ... 837 Registrar of Colonial Court, Duty to send Record on Appeal ... ... 1008 Registration of Foreign Degrees ... ... ... ... ... 880 „ Paper, Defacing, Provincial Law... ... ... ... 107 Registry of ships in the Colonics. See Merchant Shipping Act. Regulate 11 Trade, Extent of Power ... ... ... ... ... 1075 Regfulation of Dominion Licenses ... ... ... .,, ... 145 „ and Acts, 1883-4 ... ... ... ... ... 148 „ assumes Conservation ... ... ... ... 1069,1075 „ and Prohibition Cases in U.S. ... ... ... ... 58 „ ,, not Synonymous ... ... ... ... 55 „ of Commerce, used Imperially ... ... ... ... 591 „ of Trade and Commerce ... ... ... ... 52,151 „ „ and Commerce, Warehouse Receipts ... ... 75 „ „ and Shop Licenses ... ... ... ... 150 I, Provincial Taxation ... .., ... ... ... 53 „ Sale of Intoxicating Liquors, 2nd Part of Canadian Act ... 130 U.S. ... ... ... ... ... ... ... 66 Rejected liills, Re-introduction of ... ... ... ... ... 42 Religious Kights, History of ... ... ... 4,569,685,695,710 „ Teaching and Denominational ... ... ... ... 303 Remedial Laws, in Education Questions, by Dominion Parliament ... 334 Removal from Office of Lieutenant Qovprnor ... ... ... ... 29 ,, of Criminal Lunatics ... ... ... ... ... 841 „ of a Member by the Legislature of New Brunswick ... ... 5 „ of Prisoner ... ... ... ... .. ... 758 INDEX. 1117 I'AdK ... 123 ... 221 ... Ill ... 300 67, 22.5 ... 06 ... 48 ... 120 67, 22.5 ... 1011 ... 162 ... 410 4 ... 28 75, 206 36, 1070 ... 545 ... 27 5 ... 24 ... 401 ... 305 ... 400 ... 123 ... 837 ... 1008 ... 880 ... 107 ... 1075 ... 145 ... 148 1069, 1075 ... 58 ... 55 ... 591 52, 151 ... 75 ... 150 55 ... 130 ... 66 ... 42 585,695,710 ... 303 ... 334 ... 29 ... 841 5 ... 758 Removal— t'u/t^ „ of Privy Councillor „ of .Spoivker of II.U. Ciiimilii Renunciation i^'f (->i'>K>iial Nutioiiaiity Repeal of Acts by I'roviiiciiil Lugl.sliituro „ of Acts, Strong, J., oil ,, „ KtHjuisite „ of lty-liiw8 ... of I'liit-iof U.N.A. Act, 1807 ... ,, of Provincial Act ,, of Provincial Acts by Dominion Representation H- of C. Ailjustwl every 'I'cn Years ), IncrciLso of, in 11. of U. „ of Now Territories in I'arliamcnt of Caimila , of the Provinces in tlio Senate Representative Government, Earl Grey on ... ,, of the Crown, Lieutenant Governor Reprint of English Books in Canada ... Repugnancy of Provincial Act ReC[Uisite8 for Dismissal of Jjieutenant-Oovornor Rescinding O. in C. allowing Appeal ... „ Order for Special Leave when Appeal not procc^eded Reserved Kill, Old Procedure „ Bills for Queen's Assent Reserves, Indian ... Residence constituting Domicile for Divorce ... Residential Disqualilication of Senator Resignation of Ministry if Disapprove of Bill ,, ot Senator Respondents, Direction that Others may Interveiio Restraint on Sale of Liquor Restrictioa of the Liquor Traffic ,, on Brewers „ of Chinese Immigration ... „ on Generality of Terras ... Retail and Commerce License, &c. „ and Wholesale Returning Pugitive Reunited Canada ... Revenue and Appropriation .. . ,, and Duties ,, Canadian Temperance Act not a Piscal Law „ from Saloons „ Fund, Creation of ... ,, ,, of Provinces ... „■ Eaising, for Provincial Purposes „ Vested in Crown Rights and Privileges as regards Education „ „ of Denominational Schools at the Union „ Immunities, and Privileges of Assembly ... ,, in Schools prejudicially Atfoctcd „ of Appeal, Summary of Cases ... ,, of Indians ... „ of Unity of Empire Children ... Ritchie, C.J., Contrasts Federation of Canaelu with U.S. ... „ in Severn y. The Queen „ ou Interest rAciE 8 10 ... 100 ... 360, 384, 1043 ... 100 93, 1043 ... 120 745 739, 1013 ... 1070 ... 23 ... 24 13 ... 28 27 91 ... 198, 739, 1043 ... 28 ... 430 with ... 122 ... 580 ... 20 94 ... 448 15 ... 42 ... 15 ... 95 ... 102 ... 100 •Jo ... 03 43 ... 160 ... 151 ... 828 ... 003 ... 25 483,484 ... 132 .. 150 .. 483 636 ... 113 ... 295 ... 332 ... 347 36, 1079 375 ... 410 96 4 ... 60 ... 52 76 jjpwi^tJPifeHPTOffwwiispjsaww'P^ 1148 INDEX. Ritchie, ('.F.—whc. i-auh ,, on liiuuls Proporty of Province ,. ... ... ... Ti II on PuwoFN of Dominion to iScttlu Atliiira uf Initulvcnt liiink ... 86 II on Prohiiiition ... ... ,,. ... ... ;J07 River Act iiilowinp Obsfniction to Niiviffiition ... ., ,,, ... 66 Rivers ill Provinces imd Fish ... ... ... ... ... 72 ,, 01)8triiotii)ii ill ... ... ... ... ... ... 73 Rod '''ixhiiig and Dominion License ... ... .,, ... ... 74 RodOStO, Appixil from ... ... ... ... ... ... lOU Rodrignes .■ ... ... ... .■• ... ... 1013 Roman Ciitliolio and Kilucntion ... ... ... ... ... 3.'I2 ,, ,, and Nfw Jtruiiswii'k School Act ... ... ... 338 M ., from tho Con(|iii'8t of Qiif'l)ce Free ... ... ... 4 M „ Iteligious Rights, History of ... ... ... ... 4 ., ., Scliool in St. John's ... ... ... ... ... 318 Royal Assent and Reserved Hills ... ... ... ... ... 26 „ to Hills ... ... ... ... ... ... 26 „ to II. of C. Money Votes ... ... ... ... 23 Royalist ill Caiiadu ... ... ... ... ... ... 4 Royalties and Escheats ... ... ... ... ... ... 99 „ and Provincial Right ... ... ... ... 409, 613, al7 Rule Ejusdem Generis ... ... ... ... ... ... 32 Rules of Colonial Admiralty Courts ... ... ... ... ... 803 „ to bo oliserved in Sanctioning Provincial Acts ... ... ... 31 Rupert's Land lioan ... ... .. ... ... ... 7C2 „ into Union ... ... ... ... ... ... 547 ,, Part of North- West Territories ... ... ... ... 5 Revoking Letters Patent ... ... ... ... ... ... 4G0 s Safety ftnd Order St. Andrew Roman Catholic School ... St. Christopher, Appeal from St. Helena, Appeal from St. John's Ronian Catholic School St. Lucia, Appeal from St. Stephen's Roman Catholic School... St. Vincent, Appeal from ... Salary of Governor-Genoinil ... „ of Judges ... „ „ Additions to ,, of Lieutenant- Governor „ of Provincial Officers Sale of Arms, Prohil'iting „ of Goods, Prohibiting ... „ of Liquor, Provincial Prohibition ... „ or Storage of Gunpowder, and Provincial Livw Salmon Fishing ... Saloon, Hec. 92 „ Licenses by Dominion Salvage for Saving Life ... 133 ... 348 ... 1013 ... 1013 ... 348 ... 1013 ... 348 ... 1013 ... 485 ... 394 ... ;>••;) •i ... i7H 162, 1042 ... 104 ... 72 ... 126 ... 145 ... 980 INDEX. 1119 I'AlIK 72 H6 ;i07 G6 72 73 74 lOU 1013 3S2 338 ( 4 318 20 2G ■25 4 i>'J ,517 92 803 I'll 762 .347 5 4G0 133 348 1013 1013 348 1013 348 1013 485 ;i'i4 IS ,.. t7l» 32, 1042 ... 104 ... 72 ,.. 126 .. 14a .. 980 Sanction, Inux'i'iiilt tf) (^'linnilii Act „ of OrdinancuH „ of Uovenior-Oenorul to UHIh he CoimiiltTd UncoiiKititutioDitl Sanctioning Provincial Acts. Huleo ... Santa Cruz iHliitid, Appuiii from Sarawak (Hornco) Ai>|il'h1 from Saving I 'ifi', Hal VHgu for Scheme of K'N.A. Act ... ... ... ... 168, lo „ of Canada Ti'iiiperanco Act, 1880 „ of Nocs. 91 & 92, Lord Hfllxjrtiuon ... ... ... Schools ActN of Manitoba Compared ... „ and the JSlblo „ Prott'Htant, Roman Catholic, and UiHMcntiunt Scott Act, UuNHcU's CaHo Sea ('•»uitH Seal, flroat, of Qiiobec, when UHcd ,, „ of Canada „ ,, of Four ProvinccH ,, „ of Nova Hcotift ... Seamen, I^'nga^emunt of, in Colonial I'ortH Seas, Azoff, Adriatic, Kguan or lilack Sua, Mediterranean, Appeal from Seat of Uovornment, Canada ... Seats of Executive UovernmentN Secretary of State, and Advice to Governor-General Sectarian Majority „ >SchoolH, Iliiitory of, in Canada „ Teaching Security for Costs in I'.C. ... „ „ in Indian Courts ... „ „ in Uutario „ „ in Quebec „ ,, in the Court below and Appeal Sedgewick, J'> on Hcope of Words "Municipal Institutions " „ on the Union ... ... ... Seignorial Tenures Abolished Seizing Salaries of Dominion UlHcials ... Seizure of Ship under Ifchring Sea Award Selbom^, Earl, on Direct and Indirect Taxation „ ,, on Duty of Judges I, ,, on Jurisdiction of Dominion and Provincial „ „ on sec. 92, sub. -sec. 16 „ „ on sees. 102 and 126 ... „ „ on Phrase, Generally all matters of a local or priviito nature „ „ on sees. 91 and 92 Selection of Judges... Self Government and Sovereignty Selling i"'d Keeping Open ... „ Liquor without a Liconfse „ Liquor on the Premises Senate and Money Bills „ and New Territory ... „ H.C. and Members, Privileges, Powers, and Immunities Defined „ Representatives in, from Ontario, Quebec, and Maritime Provinces „ Questions oh to Qualification of Senator, or as to Vacancy ... „ Quorum „ Vacancy in, how filled r PAdK ... 03 4 ... 43 ... r,\ .. 1014 ... 1013 ... 980 42, 1070 ... 1004 ... 44 ... 377 3/) I,. 354 ... 333 ... 188 ... 71 36, 37 ... 543 ... 643 ... 543 ... 930 ... 1014 11 ... 35 ... 43 ... 363 ... 341 ... 350 ... 122 ... 436 ... 400 ... 397 ... 436 ... 187 ... 180 4 ... 70 ... 912 ... 119 ... 390 48 85, 330 ... 636 44 ...19,43 391, 393 ... 27 ... 125 ... 123 ... 158 ... 25 ... 555 11, 1079 13 16 16 ... 16 lHi;i;iii':!Tri3"-;'''i"--''i-'!-i*i 1150 INDEX. Senate — ^"w'- t»aok ,, Voting in ... .,, ... ... ... ... ... 10 Senator Ago of ... ... ... ... ... ... ... is „ Appointed for Life ... ... ... ... ... ... lH Senators mu\ legislative Councillors of Queboc, Samo Qunliflcntion ... 37 „ and Legislative Councillors, Nova Scotia and Now Brunswick ... 6.17 „ Disqualification of ... ... ... ... ... ... 1.5 „ First, were Summoned by Queen's Warrant ... ... ... 14 „ for Qucl)ec, Property Qunlirication ... ... ... ... 14 „ How Summoned ... ... ... .. ... ... 14 „ Nominated for Life ... ... ... ... ... 15 „ Numl)erof... ... ... ... ... ... ... 12 „ of British Columbia ... ... ... ... ... 13 „ of Manitoba ... ... ... ... ... ... 13 ,. of New Brunswick ... ... ... ... ,.. ... 13 „ of Nova Scotia ... ... ... ... ... ... 13 of North- West Territories ... ... ... ... ... 13 „ of Prince Edward Island ... ... ... ... ... 13 ,, of Cluelwc, how Appointed ... ... ... ... ... 13 „ Property Requisite ... ... ... ... ... 13 „ Resignation of ... ... ... ... ... ... l.'i „ Qualification of ... .. ... ... ... ... 13 „ Sitting in Canadian H. of C. ... ... ... ... 17 „ Summoning Additional ... ... ... ... ... 14 ,, Votes Equal, Negative has it .. ... ... ... 10 Sentences imposed by Colonial Courts ... ... ... ... 820 Separate Schools ... ... ... ... ... ... ... 333 Service of Lieutenant-Oovcrnors, Jjcngth of ... ... ... ... 4,28 Session of Canadian Parliament a Yearly one ... ... ... ... 12 ,, of Ix'gislative Assemblies, Yearly ... ... ... ... 40 Sessional Papers, Publication of, and Protection of Persons ... ... 12 Settlement of Crofter Loan ... ... ... ... .,. ... 900 „ of Country, Land Ceiled for Settlement, Meaning of ... ... 99 Severing of Quebec and Ontario ... ... ... ... ...4,0 Severn's Case ... ... ... ... ... ... 52, 12; Seychelles, Appeal from ... ... ... ... ... ... 1013 Shanghai. Appad fvom ... ... ... ... .. ... loi" Sheriff, Right of 78 Ship, &e. See " Merchant Shipping Act." Shipping and Navigation ... ... ... ... ... ... 70 Merchant, Act, Summarized ... ... ... ... (f>l Shop, liaising a Revenue from ... ... ... ... ... i;,() „ License by Dominion ... ... ... ... ... ... 14,-, „ Saloon, Difference b;'tween Licenses ... ... ... ... | i-j Siam, Appeal from ... ... ... ... ... ... ... ini3 Sierra Leone, Appeal from ... ... ... ... ... ...1013 Singapore, Appeal from. .SW' straits Settlements ... ... ... 1013 Sittings ''f Supreme Court ... ... ... ... ... ... 31)-, Skimmed -Milk and Dominion Legislation ... ... ... ... a23 Slave l'ra» , » tl » VA(iF. 48, 151 ... 420 ... 721 ... 840 ,.. 888 ... 1014 . . 1009 10 .. 27 ... 23 ... 10 555, 1003 ... 23 ... 23 ... 727 ... 40 ... 37 16 ... 112 ... 474 430,431 ... 445 ... 420 ... 449 463,481 ... 426 ... 418 ... 404 ... 431 ... 403 ... 434 ... 428 ... 478 ... 414 ... 415 ... 428 . . 412 ... 476 435, 430 ... 480 ... 458 ... 434 ... 459 ... 423 22 18 464 449 414 460 449 452 474 459 472 nmMnnnwi mm 1152 INDEX. Special— ''"»^ '"*"" „ Leave ti) Aiipciil, Lilx-l Cnso ... ... ... ... ... "7 „ „ „ Manager's Duty ... ... ... ... 477 „ „ „ Matrimonial Questions ... ... ... 436 „ „ „ New Districts ... ... ... ... 440 „ „ „ not to lie lightly granted ... ... ... 10 „ „ „ Obstruction of Way ... .,. ... ... 464 „ Ontario Statutes ... ... ... 460, 467 Peril of the Sea ... ... ... ... 468 „ „ „ Point of Law : cannot Change Front and Rely on Facts only „ PoorllAte ... „ Privilege ... „ „ „ Proper Person not Appealing ... „ „ „ Question of Access to Harbour, Kofused ... liifuscd „ „ ,, Kiel's Giise ... ,1 „ „ llulos of Court below ... „ „ „ Suggested Application for Leave „ Facts, Roman Catholic Schools „ Reference to S.C.Ontario „ „ through a .Secretary of State ... Speedy 'f'"''*''' Act ... stamp Act, Pure and Simple, by Provincial Legislature ... „ Duty on Canadian Stock Stamps not Direct Taxation ... State, meaning of ... Statement, False ... statistics and Census Status of Kxecutor pending Appeal „ of Provincial Legislatures 462 431 436 478 481 472 538 431 423 348 300 411 324 127 811 121 27 107 60 436 1 Statutes cited :— PAGE Statutes cited — con t. 25H. 8.C. 10. .•• i006 14 O. 3. c. 83. ... 4, 6, 56 33 H. 8. c. 30. ... 402 c. 84. ... ... 772 8 El. c. 6. ,,, ... 1005 „ e. 88. ... 218, 654 13 El. c. 4. • • • • <• 402 15 O. 3.e. 31. ... ... .504 7 Jas. 1. c. 2. ... 771 „ c. 63. ... ... 873 14 & 15 Ch. 2 c. 13. • •• 772 16 O. 3.C. 4. ... ... 402 10& n W. 3. c. 25. ... 6 „ c. 62. ... .. 772 1 1 W. 3. e. 6. .•1 ... 771 17 O. 3. c. 67. ... 849, 873 1 1 W. 3. c. 7. ,, ... 704 18 0. 3. c. 12. ... ... 56 11 & 12 W. 3. (Ruff.) 771 19 & 20 G. 3. c. 20. ... 772 2 Ann. c. 14. ... 772 21 G. 3. c. 70. ... ... 1010 8 Ann. c. 10. ■ •♦ 847 22 G. 3. c. 82. ... ... 1006 4G. I.e. 0. • • * • • . 773 23 & 24 G 3. c 38. ... 772 6 O. 2. c. 7. • t > 477 20 G. 3. c. 11. ... 402 8 G. 2. c. 13. ,,, «4l ,873 „ c. 20. ... ... 694 13 0. 2. c. 7. ,,, .. . 771 31 G. 3.C. 29. ... ... 694 20 O. 2. c. 44. *■> ... 771 „ c. 31.. .4, 56, 397.407,513, 7 O. 3. e. 38. • •• 849, 873 661, 697 7 O. 3. c. 46. *• t . >. 601 32 0. 3. c. 2. ... ... 399 13 0. 3.C. 3. <•• • •• 402 „ c. 46. ... 6, 604 „ p. 2». ... ... 772 33 0. 3. c. 6. ... ... 309 „ c. 63. ... M)0, 1010 „ c. 70. ... 6, 604, 596 INDEX. 1163 Statntes cited— cont. PAOB Statutes cited— con/. PAGE 34 G. 3. c. 2. (U.C.) 399, 402 4 & 6 W. 4. 0. 95. . ... 1009 ,. c. 3. ... 400 5 & 6 W. 4. c. 65. . 874 c. 6. 82, 397, 399, 6 & 7 W. 4. 0. 59. . ... 849 407, 420 „ c. 69. . 874 35 G. 3. (P.E.I.) c. 7. ... 402 c. 110 ... 874 „ (C.)c.8. ... 201, 223 7 W. 4. & 1 V. 0. 28. ... 462 36 G. 3. (U.C.) c. 3. 212, 222 1 & 2 V. e. 9. 4 „ (C.)c. 9. ... ... 526 „ c. 69. . .. 840,849,850 „ 0.48. ... 772 2 & 3 V. c. 63. ... 059 37 G. 3. (U.C.) c. 6. ... 400 3 V. (U.C.) c. 9. . ... 222 „ .. e. 12. ... 218 „ „ 0. 20. 212, 222 ■). ... ... 1010 » „ 0. 21. ... 222 38G. 3. . 849,851 „ c. 22. 222 • 39 & 40 G. 3. c. 79. ... 927 „ „ 0. 23. 222 40 G. 3. (U.C.) c. 1. ... 400 3 & 4 V. c. 35. .. 4,94,566,654, 41 G. 3. c. 107. ... ... 847 059, 663, 097 43G. 3. c. 138. ... ... 694 „ 0. 78. ... 585,053, 710 49G. 3.C. 27. ... 6, 594, 696, 660, 4 V. (C.) c. 17. 526 627, 652 4 & 5 V. (U.C.) c. 21. ... 222 60 G. 3. (U.C.) c. 6. ... 222 „ c. 61. ... 849 64 G. 3. c. 156. ... ... 847 5 & 6 V. 0. 36. ... 525 66 G. 3. (U.C.) c. 34. ... 222 0.45... 91 , 92, 93, 697, 840, „ c. 82. ... 901 849, 850, 853, 874 67G. 3.C. 61. 6 „ P. 61. 1009 68 G. 3. (U.C.) c. 6. ... 222 c. 120. 69 0. 3. (U.C.) c. 2. ... 212 6 & 7 V. 0. 34. .. 702, 82.'-., 826 „ (P.E.I.) c. 3. ... 402 0. 38. 902, 1007 „ c. 38. ... 6 0. 75. 774, 780 8G. 4.C. 119. 605, 650 „ 0. 76. 778,780 4 0. 4. c. 71. ... 409 0. 94. .. 743, 825, 1010 6 G. 4. c. 67. ... 594 596, 627, 654, 7&8V. 0. 12. . . 840, 849, 872 1012 c. 60. 772 „ 0. 68. 6, 649, 654 0. 69. 702, 902 6G. 4.0. 60. ... 773 c, 110. 278 „ 0. 69. ... 695, 696, 605, 627, 8 V. (C.) 45. 520 649, 653 „ „ c. 55. .. i>-)n „ c. 67. ... 772 8 & 9 V. 0. 93. 851 „ 0. 75. ... 65.T „ 0. 120. ... "80 7G. 4.C. 64. ... 917 9 V. c. 93. 852, 85;i 7&8G. 4. 0. 62 ... 346, 663, 69i „ 0.114. ... 508 696 9 & 10 V. 0. 3. &10 V. 0. l.(Nf.) (i 9G. 4.0. 61. ... 662 0. 9.S. . ... 404 „ 0.83. 706, 1009 10.lt 11 V. 0. 28. ... 819 9& 10 G. 4.0. 27.... ... 62 0. 71. 514 lOG. 4.0. 17. 6,627 0. 83. 772 1 &2 W. 4.0. 23. ... ... 566 .-.95... .92,94,703,851, 2&3 W. 4. 0. 51.... ... 902 852, S7I 0.78. 6 627, 649, 654 12 V. (r.)o. 5. 630,531 0.93.... ... 1018 „ (P.E.I.) c. 9. .. 402 0.92.... 1006, 1007 „ (I'.C.) 0. 03. H. 40 ... 100 3 W. 4. (P.E.I.) 0. 1 1 ... 402 „ (N.IJ.) 0. 05. ... 311 „ c. 15. ... ... 874 „ (C.) 0.81, 206,212,220, 1017 8 & 4 W. 4. 0. 27 ... ... 462 ,. 0. 87. s. 5 ... 450 0.41.... 411, 416. 902, 12 & 13 V. c. 21. 1000, 1022 0. 96. ... 703,82.5,901, 0.91.... a 09An ... 77-1 1039 i 1) 1164 JNDEX. St&rtntes fitcil ~eo7it. I'AOE 13 V. (N.B.) c. 2. ... ... 341 13&14V. (U.C.)o. 7. ... 222 c. 15. ... ... 1012 (C.) e. 27. ... 201 c. 69. ... . . 1009 (C.) c. OS. . . 222 14 & 15 V. c. 63. ... 707,718 C.83. ... ... 1007 „ c. 99. ... 825, 1039 15 & 16 V. c. 12. ... ... 875 c. 26. ... ... 946 c. 39. ... ... 514 16 V. c. 21. ... 273 „ c. 183. ... 212 „ (C.)c. 184. . ... 221 „ (C.) c. 235. ... ... 526 16 & 17 V. c. 21. 4,585, 653,694, 710 „ c. 85. ... ... 1025 e. 107. ... 85,862 17 V. c. 15. ... ... 161 17 & 18 V. c. 104. Merchant Ship- ping Act (See Act, p. 927)... ss. 6, 7, 8, p. 998; ss. 9, 10, 13, p. 999 ; BH. 21, 26, p. 933 ; 8. 31, p. 034; ss. 35, 38, 40, 41, 42, p. 929; B. 43, p. 932 ; ss. 45, 46, p. 930 ; s.s. 47, 48, 49, p. 930; ss. 50, 51, p. 929; s. 52, p. 930; 88. 53, 54, p. 930; ss. 65, 50, 57, p. 930 ; ss. 58, 59, 60, p. 930; ss. 60,67, 68, p. 931 ; ss. 62, 63, 64, 65, p. 930 ; ss. 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 77,78,79, 80, 81, 82, 8.3, 84, p. 931 ; s.s. 85, 86, 88, 89, 90, 91, 92, 94, 95, 97, 99, 100, p. 932 ; s. 98, p. 930; ss. 101, 103(4), p. 932 ; ss. 102, 103, 104, 106, 106, p. 933 ; s. 107, p. 997 ; 8. 109, p. 947 ; ss. 110, 119, 122 to 127, p. 946; ss, 131,136, p. 934; ss. 138, 139, 141, 144, 145, 146, 147, p. 936; s.s. 148, 149, 151, pp. 936, 937; ss. 150, 151, 165, 156, p. 936; as. 158, 160, 161, 162, 163, '64, 165, 166, p. 936 ; s. 167, p. 939 ; s.s. 168, 169, p. 937; ss. 170, 171, 173, 174, p. 937; 8. 177, p. 938; 88. 178, 179, 180, 181, 182, 183, 184, 185, p. 938; B. 180, p. 939; s. 187, p. 937; BS. 188, 189, 190, p. 039 ; s. 191, p. 940; 88. 102, 193, p. 941; 88. 194 to 199, p. 940; h. 199, p. 938 ; ss. 200, 201, p. 940 ; 8. 202, p. 941 ; s. 203, p. 938 ; ss. 203 to 207, p. 041 ; ss. 209 to Statutes citwi — cvnt. 17 & 18 V. e. lOi.—cont. 211, p. 942; 88. 212, ;213, 221, 222, 223, 224, 225, p. 943 ; s. 226, p. 943; ss. 228, 229, 230, 231, 232, 234, 235, p. 944; s. 233, p. 939 ; s. 237, p. 946 ; ss. 236, 238, p. 944 ; s. 239, p. 946; B. 242, p. 973 ; ss. 243, 244, 246, 247, p. 945; s. 251, p. 939; ss. 249, 250, 262, 253, 254, p. 946 ; s. 265, p. 946 ; ss. 256, ;367, 268, p. 946 ; s. 259, p. 947 ; ss. 260, 261, 262, 263, 264, 265, p. 976 ; ss. 268, 269, p. 995 ; s. 270, p. 096 ; ss. 271, 272, 273, 274, 275, p. 946 ; ss. 276, 277, 279, p. 947; ss. 280, 281, 282, 284, 286, 287, p. 046; s. 288, p. 947 ; s. 288, p. 962 ; s. 290, p. 947 ; ss. 301, ."202 (2), p. 966 ; ss. 301, 302, p. 949; ss. 305-8, 321, p. 1000; ss. 309, 310, 312, 313, 314, 315, 316, 319, 320, p. 948 ; ss. 320, 327, 328, p. 905 ; ss. 330, 331, 337, 338, p. 985; ss. 340 to 344, p. 980 ; ss. 345, 310, p. 987 ; s. 349, p. 986 ; ss. 350, 361, 352, p. 986; ss. 363, 354, 355, p. 987 ; bs. 356 to 364, p. 986 ; s. 368, p. 987 ; ss. 3C6, 366, 367, p. 987 ; ss. 375 to 388, p. 988 ; s. 389, p. 989 ; s. 390, p. 091 ; ss. 392, 393, 396, :<97, 398, 399, p. 989 ; ss. 391, 395, 413, p. 990; ss. 400, 401, p. 990; ss. 404 to 410, p. 989; ss. 41 1,414, 415, 416, p. 991; ss. 417, 418, p. 992 ; ss. 418, 420, p. 990; S.S. 421 to 427, p. 991 ; ss. 432, 437 to 448, p. 973 ; s. 435, p. 974 ; s. 439, p. 984 ; ss. 441, 442, p. 978; s. 443, p. 979; s. 444, p. 978; s. 445, p. 979; s. 446, p. 978 ; ss. 448, 450, 452, 463, p. 979; F. 461, p. 980; ss. 468, 459, p. 980; .ss. 456, 456, 467, p. 984; .ss. 466, 407, p, 982; ss. 458, 460, 404, 468, 470, p. 981 ; ss. 471, 472, 473, p. 979; ss. 470, 471, 475, p. 979; s. 476, p. 984 ; s. 477, p. 978 ; s. 474, p. 979 ; ss. 478 (2), (3), 479, 480. 481, 482, 483, p. 980; 8. 603, p. 977; ss. 486, 487, 488, 489, 490, 491, 492, 493, p. 983 ; s. 494, p. 984 ; ss. 497, 498, p. 982 ; ss. 499, 501, p. INDEX. 1166 p. 978; s. 646, .. 711 .. 19J .. 201 12, '>->r, Statntes c\tei\—coHt. 17 & 18 V. c. lOi.—conf. 984; ss. 504, 500, 514, ss. 618, 520, 525, p. 993 p. 947; i. 647, p. 1001. i' & 18 V. c. 118. 18 V. (N.IJ.) c. 36. „ (0.) e. 100. H. 23. 18 & 19 V. (Vic.)c. 55. 18 & 19 V. c. 9I.S.S. 2, 3,4,5, 6, 7, 8, p. 991 ; 8. 15, 11. 997 ; s. 10, pp. 942, 943; s. 17, p. 938; s. 20, p. 984; s. 22, p. 941 ; s. 23, p. 93G. 18 & 19 V. c. 119. .1. 3, p. 948; s. 8, p. 960; ss. 10, 11, p. 957; s. 14, p. 950 ; s. 16, ]>[>. 95", 978; as. 16, 17, 18, p. 057; s. 19, pp. 948, 949 ; ss. 20, 26, p. 951 ; s. 27, pp. 950, 966 ; s. 28, p. 956 ; h. 29, p. 951 ; ss. 31, 32, 33, 34, p. 952; s. 35, p. 953; ss. 38, .39, 40, 41, 43, 44, p. 955 ; ss. 44, 45, 46, 47, p. 956; ss. 48, 49, p. 958; 8. 50, p. 957 ; m: 51, 52, 53, 56, p. 959; S.S. 59, 60, p. 958 , s. 61, p. 961 ; s. 62, p. 958 ; ss. 63, 64, p. 956 ; ss. 66, 67, p. 960 ; ss. 71, 72, 73, 74, p. 958 ; ss. 75 to 80, p. 960 ; s. 82, p. 961 ; s. 84, p. 960 ; ss. 90, 97, 98, p. 962. 19 V. c. 65. ... 347 19 iV 20 V. c. 23. ... 713 c. 113. ... 825 20 V. (N.B.)c. 1. ... ... 194 „ (C.) c. 125. ... 532 „ c. 129. .. 163 20 & 21 V. c. 34. 707,718 c. 39.... 719, 840 „ c. 75. ... 1040 21 V. (N.B.)c. 9. ... 334, 339, 342, 34 1 317 , 348, 363 „ (N.S.) <■. 47. ... 163 „ (N.ll.) c. 57. 315, 347 21 & 22 V. c. 90... 368 , 765, 8«6 c. 91... 6, 721 22V^c. 20. 825, 1039 „ c. 26. ... 726 „ (C.) 0. 66. .. 125,273 „ c. 85, ... 433 „ (U.C.)c. 99. .1.245... 103, 206 22&23 V. c. 26. ... ... 728 . „ 0. 10 727 c. 63. ... 825, 1039 23&24 V. c. 89. ... ... 726 „ V. c. 122.... 826, 1030 Statutes cited— coiit. 24 V. No. 8 „ No. 16. 3. 29 24 &25 V. c. 10. s. 9. c. U. ... ... 424 ... 1009 ... 980 826, 1039 ... 1040 . „ c. 31. ... c. 97. ». 47 ... 991 c. 100.... ... 1039 „ c. 101.... ... 1007 c. 104. ... 1010 25 V. c. 19. ... ... 498 25 & 26 V. c. 63. a. 4, p. 933 ; s. 6, p. 9.34; ss. 18, 19, p. 942; ss. 20, 21, pp. 938, 940; «. 22, pp. 713, 942 ; s. 23, p. 973 ; s. 24, p. 974 ; 8S. 25, 27, 30, 58, p. 965 ; ss. .35, 37, p. 949 ; s.s. 43, 44, 46, 46, 47, p. 990 ; ss. 52, 63, p. 979 ; ss. 39, 40, p. 985 ; ss. 64 to 66, p. 978 ; ss. 66 to 78, p. 977. 25 & 26 V. c. 68. ... 872, 874, 875 c. 70. ... 774, 786 26 V. (N.l{.)c. 7. ... ... 341 „ (U.C.)c. 44 103 26 & 27 V. c. 24. ... 898, 903, 1021 c. 35. ... ... 1040 c. 51. s. 3 947, 948 c. 51. s. 11 ... 966 c. 51.S. 13 ... 958 e. 61.8. 14 ... 969 c. 76. ... ... 732 c. 83. 5, 721, 7.33, 746 27 V. (N.15.)o. 43. ... ... 231 27 & 28 V. (0.) c. 3. ... 213 „ c. 13. ... 410 (U.C.)c. 18. ... 162, 177, 206,641, 1064 c. 25. ... 890, 927 (U.C.)c. 68. ... 410 „ c. 60. ... 431 ... 366 28 V. cc. 28, 29. 28 & 2'J V. c. 14 e. 63 6 c. 63. s c. 64. ... 0. 106.... c. 11.3.... c. 116.... 29 V. (N.S.)c. 30. ... „ {C.)c. 34. ... 29 & 30 V. c. 26. ... (Q.) c. 32. ... 734 92, 738, 1079 ... 346 ... 741 ... 742 743, 887 743, 1040 ... 365 ... 368 ... 908 202, 1047 (U.C.)c. 61.... 164, 163, 177,208,210, 1044, 1064 c. 65 743 p. 67. ... 6,721,743 4 D 2 1156 INDEX. Statutes cited— «o»/. PA(IB Statutes citoA—cont. PAOB 29 & .30 V. c. 87. ... ... 1040 M V. (N.H.) c. 47.. .. 67.113,226 c. 121.... 778, 786 „ (Q.)c.68 . 84, 86, 329 30 V . c. 3 3 33 & 34 V. c. 10. 8. 20 ... 743 »» (N.B.)o. 6. ... ... 231 c. 14. . .. 100,764,773, » „ 0.12.... ... 231 801 1> „ C.27.... ... 342 c. 62. 774 tl (N..S.) c. 36, ... ... 487 „ c. 66. . ... 1041 30 & 31 V. c. 3. 603, 746,823, 887 c. 68. . 817 c. 16. ... ... 989 c. 66. . .. 721,745,786 c. 46. ... ... 903 c. 75. .362 c. 124. 826, 1039 c. 82. . .. 787,809,811 8.4, p. 943 ; 88. 6, c. 90. . „ 789, 895, 972 7, p. 944; 8. 8, p. e. 95. . 964 939; s. 9, p. 944 ; c. 102. .. '64,773,799 N. 10 p.943;s. 11, 34 V. (N.B.) 0. 1. . ... 392 p. 904. „ (Q.) c. 2. . 322 31 V .(D.)c. 1. ... ... 84 „ (D.) c. 6. 75,91 » (0.)c. 6. s. 2 .. ... 107 „ (N.B.) e. 21.. .. 3.'i4, 339, 342, tt (D.)c. 8. ...64,69,68,144 367, 360 tl C. 12. ... 91 „ (D.)c. 22. . 101 i* (D.) 0. 17. ... 86,91 „ (0.)('. 38. . ... 233 »» c. 23. ... 91 „ (Q.) 0. 68. ... 204 1* c. 29. ... 367 34 & 35 V. e. 28. .. 3, 11,46, 369, tl (0.) c. 30. ... 11, 392 538, 640, 547, » (Queenl.) No. 38. ... 1009 553, 887 It c. 64. ... 849 c. 83. . 36 M (D.)c. 56. ... ... 93 c. 91. . ... 1025 >l „ e. 58. ... ... 451 0. 110. .. 713,064,966, It ., c. 60. ... 72,74 973, 976 ,, „ c 66. ... ... 101 c. 107.. ... 1012 J, .. 0. 70. ... ... 50 35 V. (D.) 0. 5. 65 „ c. 94. . 31 & 32 V. c. 29. , „ • p. 101., 0. 106. c. 129., 32 V. (Q.) c. 4. . (O.) c. 6. c. n. (0.)c. 22. ... (O.) c. 27. ... „ <■. 32. ... (N.B.) c. ,i4. ... («.)c. 65. ... (O.) c. 92. ... 32 & 3.'t V. m.> c. 3. p. 10. c. 11. e. 31. p. 52. c. 101. ... 642 754, 755 ... 647 ... 553 758, 934 12 103, 392 ... 935 ... 390 ... 107 162,177,208, 1064 231, 232 ... 232 ... 392 ... 333, 369, .547, 553, 800 758, 845 702,963, 100! ... 102 ... 541 547, 762 „ c. 23. „ (D.) p. 26. „ „ p. 65. s 35 & 36 V. p. 19. p. 29. p. 39. p. 45. p. 63. p. 73. p. 97. (]).)p. 115. 33 V. (Clin.) 0. 3. 618, 553, 554, 800 36 V. (O.) p. 3. „ P. 0. „ c. 10. „ (0.)p. 21. „ (D.) c. 28. „ (O.) e. 48. „ (D.) p. 82. 36 & 37 V. p. 45. p. 69. p. 00. p. 66. „ p. 86. 91 88,89 ... 233 ... 895 743, 887 100,764,801 ... 803 556, 565, 566 713,932,985 ... 696 .. 307 ... 392 ... 1014 ... 68 ... 392 ... 312 ... 177 ... 232 787, 809 896, 903 642, 774, 783 ... 1026 ... 964 C. 26. (D.) c. 40. ... 100 85, 86, 332 8. 3, p. 929; 8. 7, p. 936 ; 8. 0, p. 973 ; INDKX. 1167 Statutes cited— eo«/. I'AOB Statutes cited— c«»»/. PAOH 36 & 37 V. c. 85.- -COIlt, 38 & 39 V. c. 51. ... 895, 903 SH . 12, 16, p. 965; „ c. 52. ... 803, 804 SS .4, 18, 20, p. 966; (D.) c. 53 ...92, 93, 823, SS . 19, 20, p. 987; 849, 856 s. 22, pp. 947, 965 ; n. 66. ... 852, 1007 ss . 23-28, p. 969; c. 77. ... ... 1026 s. 29, p. 934 ; s. 30, „ c. 85. . . ... 1041 p. 933. 39 V. (Q.) c. 2. ... ... 232 c. 88. ... 774,890,903 ■ (Q.) c. 7. ... 120, 127 c. 91. ... 649 1 (N.B.) c. 8. ... ... 391 37 V. (0.) c. 7. S8. 32, 32 ... 463 * (D.) c. 18. ... ... 50 „ (D.) e. 10. 8,20,48,313,394 » (0.)c. 24. ...47,56,278,459 ., c. 16. 489,490,491,494, > c. 27. ... 493 406 > , (Q.)c. 52. ... ... 66 „ c. 20. 7 1 „ c. 57. ... ... 452 „ e. 21. 7 I „ c. 61. ... ... 240 „ (Q.) c. 23. 452 t , (0.) c. 93. ... ... CIO „ (0.) c. 30. ... 308 > „ c. 109. ... ... 473 „ c. 32. ... 52,55, 56,58, 39&40 V. c. 36. ... 852, 971 144, 158, 177 c. 43. ... ... 801 „ (Q.) I'. 51. 161 C.46. ... ... 1041 „ (D.) 103. 234,236 c. 69. ... 1026, 1029 37 & 38 V. e. 26. ... 811,818,819 c. 80. 912,925,964,078 c. 27. ... 820, 831, 844 ss. 4, 6, 10, 11, p. „ c. 35. ... 596, 605,649, 972, 8.S. 7, 8, 9, 653, 654 p. 976; ss. 11, 13, c. 41. 719,720,821,840 p. 973; 8. 14, pp. c. 77. ... 822 948, 957, 958; 8. 15, „ c. 83. 1026 p. 977; s. 17, p. e. 85. ... 1021 949; s. 19, p. 961 ; c. 88. 946 H. 21 pp. 960, 966 ; c. 94. 825,1039 8. 24 , p. 970; s. c. 96. ... 663, 694, 697, 25, \ . 967 ; .S.S. 27, 846,849,1019,1023 28, p 968 ; s. 29, p. 38 V. (D.) p. ix. 347 973- 1; 8. 30, pp. „ (Q.) 0. 8. ... 40,45,83, 109 973, 976; 8. 31, p. „ (D.)o. 11. ... 19,52,82,304, 979; 8. 34, pp. 933, 395, 404, 405, 906; 8. 36, p. 932 ; 442, 4.54 s. 39, p. 977. „ (M.) e. 12. 403 40Vic. (N.S.) c. 2. ... 543 „ (D.) e. 10. 80,81,307 , (D.)c. 3. ... ... 543 „ c. 20. 65, 266 „ c. 21. ... ... 49 ., c. 49. 403 c. 26. ... 542 .. (D.) c. 47. ... 104 (D.) c. 41. ... 81,308 „ c. 40. 6, 403 „ c. 46. ... ... 233 „ (Q.) c. 62. 274,278 „ e. 60. ... ... 240 ,. >, c. 64. ... 124, 232,274, c. 60. ss. 326, 327, 370 461 328, .538 40 & 41 V. c. 16. .. ... 978 „ (0.) c. 75. ... 232 „ „ 8.S. 4, 5, 6, 7, 8 980 ,. (I).) c. 88. ... 92,93,94,849 c. 23. ... ... 824 38 & 39 V. c. 12. 872 C.69. ... 812,818,819, (0.) 16. ... 108 909 c. 17. ... 963,954,969 41 V. c. 6. B. 26 ... 442, 443 c. 38. ... 11,566,746, , , (Q.) c. 13. 8. 1 ... 236 822, 1079 , , „ c. 20. ... ... 240 c. 30. 773 } , (0.) c. 69. ... ... 473 ■»«m iT fT» — wig»«« j | »fg r(ft^«» H H > H it M >» !■ fiif t Wf iW III 1168 INDEX. Statutes cited— co»^ paoi Statutes cited— ('o;l^ PAQE 41 & 42 V. c. 67. ... 738, 826, '041 40&47.V. c. 41— t•o»^ c. 79. ... 703, 743 17, 19, p. 964; 8. 18, . 42 V. (D.)c. 8 243 11.962; KH. 21 to 24, „ (B.C.) c. 12 322 27, p. 964 ; 88. 28, „ (D) c. 14 103 29, 3Uo35, p.963; „ c. 39. ... 404, 506 88. 37, 40, p. 964 ; „ (D.)c. 48 240 88. 43 to 45, p. 963 ; „ c. 07. s. 41 846 H. 46, p. 973 ; 8. 48, 42&43 V. c. 38 896 p. 944. „ c. 72. 8s. 2, 4 ... 074 c. 57. ... 1023, 1028 43 V. (D.;c. 19 66 47 V. (H.C.)c. 14.... 500, 619,621 „ „ c. 22 283 „ (N.li.)e. 19 120 „ (0.)c. 24 1075 „ {M.)c. 26. ... ... 618 „ (D.)c. 25. ... 5,11, 46, 403, „ (D.)c. 32. ... 04,144,158 638, 540, 547 „ „ e. 39. ... 87.88 43 V. (Q.) c. 32. ... 240,243 47&48 V. c. 24. ... 719,840 „ „ c. 33. ... ... 243 „ c. 31. ... 758, 841 „ (D.) c. 34 466 „ c. 57 726 „ c. 67. ... 241,249 „ c, 62. ... 839, 840 43 & 44 V. c. 8 009 48 & 49 V. (D.) c. 7. ... 64 (Q.)c. 9. 32,119 c. 49 846 43 & 44 V. c. 16. s. 3, pp. 937, 938 ; „ c. 74. ... ... 1039 8. 4, p. 937; ss. 5, 6, pp. 946, 49 V. c. 4. ... ... 71 971; 8. 7, p. 936; s. 8, p. 971; „ (D.)c. 9. ... ... 315 8. 10, pp. 945, 971 ; 8. 16, p. 938. „ c. 13. ... ... 884 43&44V.C. 20. 811,812,818,819 „ c. 18. ... .. 1075 c. 43. 8. 3 ... 970 „ (N.B.) c. 25 107 44 V. (0.)c. 6 103 „ (Q.) c. 34. ... 35, 36 ., (D).c. 14 5 „ (M.)c. 52 76 „ (0.)c. 27. ... 137,400 „ (N.S.)c. 56 71 „ (Q.) c. 62 461 „ (D.) c. 100 1066 44 & 46 V. c. 3 1028 49 & 50 V. c. 33. 849, 855, 867, 868 „ c. 68. ... 825, 845 c. 35. ... 3, 655, 790 „ c. 69 703 c. 48. ... 755, 884 C.69. 702,820, 1039,1041 50 V.c. 4. 88. 141, 144 ...65,60 46 V. cc. 20.&21.... ... 542 „ (N.B.) c. 4 102 „ (Q.)c. 22 113 „ 8C88. 2.C. 4. 8.S. 2, 6 ... 903 „ (D.)c. 23. ... 87.88 ., (M.)c.lO 70 „ (N.B.) c. 100. 66, 71 50&51V. e. 3 840 46 & 46 V. c. 56. ... 943, 992 c. 13. 743,800,801,887 „ e. 72. ... 811,819 c. 67 726 c. 76. ... 837, 973, 975 c. 70. 1008, 1026, 1029 46 V. (N.S.W.) No. 17 ... 417 61 V. (0.) c. 32. ... 106, 106, 323 „ (D.) c. 24 459 „ (D.)c. 37 404 „ (0.)c. 46 469 ., C.47 324 „ (D.)c. 120 298 „ c. 62 888 46 & 47 V. (D.) c. 30. ... 144, 158, „ c. 70. ... ... 888 837, 839 61 &52 V. c. 24. ... ... 966 0,39. ... 768,764,774, c. 57. ... 650, 846, 1006 787, 789 c. 05 719 c. 41 762 62 V. (0.) c. 15 106 8. 3, p. 962 ; 88. 4, 6, „ (D.)c. 43 104 p. 963 ; 8. 7, p. 964 ; 52 & 63 V. c. 29 947 8. 8, p. 963 ; 8. 10, c. 42. ... 837, 839, 862 p. 964; 8. 11, p. c. 43. 88. 1 to 6 ... 933 ... 963; s». 13, 16, 16, „ c. 46. ... 888, 037. 040 MitaMaata IKDEX. ii5d PAOB )23, 1028 519,621 ... 120 ... 518 144, 158 87,88 719,840 758, 841 ... 726 839, 840 ... 64 ... 846 ... 1030 ... 71 ... 315 ... 884 .. 1075 ... 107 35,36 ... 76 ... 71 ... 1065 867, 868 555, 799 755, 884 ...65,66 ... 102 ... 963 ... 76 ... 840 801,887 ... 726 26, 1029 106, 323 ... 404 ... 324 ... 888 ... 888 ... 966 46, 1006 ... 719 ... 106 ... 104 ... 947 839, 852 ... 033 037. 040 Statutes cited— cow^ i-aob Statutes ^'itcd — cont. PAOI 62 & 53 V. c. 68 888 64 & 66 V. e. 67. 849 s. 2 (A), p. 085; c. 67. 852, 1010 ss. 6, 7, p. 986 ; ss. „ c. 69. 396, 938 3, 4, 9, 10, p. 987. 66 & 66 V. c. 19. ... 718,719,727, c. 73 933 728 53 V. (IU".)c. 8 323 ,, c. 35. 008 „ c. 9. ... 961,967,068 „ c. 52. 906 „ (0.)c. 13. ... 395,396,401 66 V. c. 14. 734, 738, 743, 746, „ 0. 18. ... 107, 162 768, 847 „ (M.)c. 38. ... 371,374 56&57V.C.54. ...768, 762, 764, „ ((».;c. 66.. ..164, 176, 196,208, 773, 789, 709, 212,1042, 1065, 822 1060, 1073 c. 66. 1001 63 & 64 V. c. 27.. ..60,395, 888, 927, 67 V. f. 2. 910 973, 976, 1007, 57 & 68 V. c. 30. 926 1019 c. 39. 926 c. 33. ... 696 c. 56. ... 743,786,812 c. 37. 374,934,1031 C.60.. ..71,451,713,768. c. 51. ... 603,694,697, 762,911,912,916, 847 917,918,920,921, 54 V. (0.)c. 2 1013 922,923,924,926, „ c. 46. . 163, 194, 208, 927, 1039 212,1042 58 & 60 V. c. 34. 411, 1002 54 & 55 V. (D.)c. 25....29, 163,323, c. 44. 1030 395, 404, 405, 434 60 V. (2nd scbs.) c. 3. 666, 1003 c. 29 395 liPAisBD Acts Uekehued to. c. S. B. C. c. 26. ... ... 323 R. S. C. (1886)0.175. ... 324 It c. 124.... ... 230 R. S.N. S. (3ra .scr.) c. 19. ... 163 c. s. c. e. 66. ... 233 I» (4th ser.) c. 89. ... 402 tt c. 101. ... ... 324 n (6th scr.) c. 3. ... 1079 c. S. L. C. c. 24. ... ... 163 U. S. 0. (1877)0.37. ... 400 »» c. 69. ... ... 240 „ c. 42. ... 391 »» (1861) c. 77. ... 398 „ 0. 142. ... 368 ■ tt „ e. 88. ... 235 „ 0. 167. ... 66 c. 8. IJ C. (1869)0. 13. ... 402 „ 0. 181. .. 138,324, tl „ c. 19. ... 391 400 l» „ 0. 63. ... 240 (1887) 0. 41. ... 390, 402 „ „ c. 54. ... 206 „ c. 42. ... 400 R s. c. (1886) c. 9. ... 314 „ c. 44. ... 401 II • • „ c. 106. ,. c. 135. .. ... 190 395, 404, „ c. 124. ... 302 „ c. 194. ... 158, 212 405 R s. « .(1888) ... m. 1114, 1116, „ c. 167. ... 107 lll.-ia, 1142«. 1178, 1178a, t» „ c. 167. ... 107 6009, p. 398. n „ c. 174. ... 107 Statutory Caso ... „ CondilioiiN iind limumncu ('.jmpftuie.s Construction of sees. 91 iind 02 Exiiniincd Steamers, Intor-Provinciul ... Stock, Colonial, Transfer of ... „ Holders, Register in Colonitw ... ... 144 ... 268 ... 301 66, 224 ... 908 ... 837 m m vt t vm mmmfm 1160 INDEX. PAOB Stocks lit Tinif of tho Union ... ... ... ... ... 488 Straits Settlements, Appoui from ... ... ... ... ... ioi3 Streams nnd Floating Timbur ... ... ... ... ... 461 „ in Provinces iind FiHh thoroin ... ... ... ... 72 Strong, C'.J., Exnminntion of RusmcII c. Reg., llodgu r. Keg., and City of Fredoricton i . livif..,, ... ... ... ... 165 ,, „ on License which would amount to a Prohibition ... ... 68 ,, ., on Prohibition of Manufacture ... ... ... ... 164 „ „ on sub-see. 2 1 , sec. ... ... ... ... ... 86 Subsidy t" Kiiilway ... ... ... ... ... 126,220 Suing Governor of Colony ... .. ... ... ... ... 10 Sum I>i'niiinde. Laml)e ... 114 ,, extended so far as to cause Suspension of Business ... ... 118 ,, of Public Lands in Canada ... ... ... ... ... 636 ,, Point of, and Special Leave... ... ... ... ... 122 Power of, in U.S ... ... ... ... C9 „ Stamps not Direct ... ... ... ... ... 121 „ under Municipal Institutions ... ... ... ... 77 INDEX. 1161 Taxes, DiNcrimiimtion in ... ... Teaching, Hrctiiriiin Telegn^aph und BixIh uf lliiyH Telegraphs, ill sw. a 1 Temperance Acts, 1883-4, KcHult of Argumi'nt. „ „ of Ciiimdii and Ontrtrio Act Term of Lieuteiiiint-Oovernor... Terms, I'mm, Onlor, mid Good Government not to bo Hestrictcd .. Territorial <'ourt!j of Julian, CounttTflaim Territories outside a Province, Incorponition of Territory CV'ded for Settlement, moaning of Test of Appeal „ Appealable Amount ... Three Kivors, Prohil)ition of Liquor Sales Tidal Navigable River, Power to Obstruct Timber and Streams in Canada „ on Lands occupied by Lulians... Time, Limit of, between Meetings of Purliumcnt Tobago, Appeal from Tonga, App il from Trade ttud Commorcc in sec. 01 „ „ Considered ,j „ includes, in Ijiiws of Canada ^ ,, Incorporiition of Companies ,, „ include Political Arrangements „ „ Power to Municipalities ... „ „ Question left by J.C. undecided „ Rcgulat ion of, Examined by Kitchic, C.J. „ Act of Old Provinces ... „ Case on Interference with „ Katepayors ... „ Sale or Storage ofUunpowdor ... „ Shop Licenses ,, in Guns „ Navigation, and Immigration of Chinese ... „ of British Possessions, Kegulation Act ... „ Provinces can Legislate to Prevent Fraud in „ Eliminating Subject Matter from „ Kegulation of „ Suppression of „ Regulated throughout the whole Dominion may be within power ... „ Regulation of, and Commerce ... „ What is Trader, Tax on amount of Trade done Traders and Non- Traders: Bankruptcy Act „ in Cannda defending Outside Creditors „ Regulated iu U.S. ... ... ••• ••• '• Trading Rights and Treaty with U.S. Transfer of Colonial Stock ... of High Court of Delegates to King in Council ... „ of Property in British Ship ... „ of Stock and Transfer Duty ... Treason of Senator... Treasury of Provinces Provincial, and Product of Tax I'AdB ... 122 ... SAG ... 74 ... 224 ... 168 162, 1042, 1064 ...4,28 ... 43 ... 1031 3 ... 00 ... 441 ... 424 ... 163 ... 71 ... 461 ... 100 ... 12 ... 1013 ... 1013 167, 1043, 1076 \o\, 1068 ... 181 2, 263 ... 68 207 ... 63 62 ... 605 66, 1076 ... 162 ... 104 ... 160 ... 162 ... 64 ... 861 ... 106 ... 176 1043, 1076 ... 103 Dominion ... 167 ... 62 ... 263 ... 127 ... 79 ... 88 ... 66 ... 807 ... 008 ... 1006 ... 030 811,812 ... 16 ... 633 ... 166 I l4M|*uilMKlii*t""»"nwn wmmmm 1162 INUKX. I'AdK Treaty riMlin^ Lmul for Suttlomont iiiiil Ininiigriitiun, moaning of ... ... 09 „ ObligiitionN... ... ... ... ... ... 541, 1031 ,, ofPftrii! ... ... ... ... ... ... ... 4 ofUtrocht ... ... ... ... ... ... ... 5 of Wiuthingtoii, 1872... ... ... ... ... 636,803 with V.H. as to Kisliing ... ... .. ... ... 808 ,, Schemi" of f'oiiffdoriition to lio VicwcKl iw ... ... ... 108 TrOeB i" I'roviiiPi', Kight to ... ... ... ... ... ... 73 Trenching on Hroviiieinl .Miilt>rs ... ... ... ...44,1043,1007 Trespass 'ly I'" 28 ... 45 40 30H ■ ** 32 ... 127 ... 554 ... 73 13d, 388 ... 218 «*. 12 ... 72 ... 365 ... 274 ,, , 3 3, 544 *•• 663 ... 2 • ** 1 ... 26 .• • 27 .>• 160 ... 62 60 ,173 .•• 118 il^.MM^J^^MIite^d^*a*^MM INDEX. 1163 I'AriK ... 00 6il, 1031 4 5 635, 803 ... 805 ... 108 ... 73 1043, 1067 ... 74 ... 73 ... 43 ... 831 ... 004 12 ... 62 ... 380 ... 80 ... 1070 16 ... 332 7<5 ... 1013 ... 1014 ... 520 • •* 28 ... 45 4(1 ,308 *.. 32 *•* 127 *•« 554 ... 73 135 388 ... 218 ... 12 ... 72 ... 365 ... 274 .. • 3 3 544 ... 663 tt . 2 ... 1 ... 25 .• • 27 160 ... 62 60 173 ■ ■• 118 United stiitoM — cnnt. ,, „ (,'iiiistiliitiuii Kxiiiiiinuil by Juiliciul Coinmittoo „ ,, Iiii'onio 'I'lix . . ... ... ... ■•• ••• ,, ,, I'l'Kviiu'iiil FrrricH .,, ... ... ... „ UitilwayH frcmi Ciiimilii ... „ ,, Suimtiwiiid MoiiBy IJills ... „ ,, 'IViTitiiry, lliiilwiiy to, iimtliT iiiuroly Loeiil iiiiil Priviitc within Hul)-Kuc. 10 iif me. 21) ... ... ••• ••• Unlimited l'"Wi'rM of Stiitf.s of AmeriiM Unorganised Tnu'ls of Country mill AilmiiiUlnitioii of iho Iiiiw ... Upper L'liimda Miirriagu Ijiws ,, ,, Old t'orniiitiou ,, „ Old I'roviiioi' of „ „ rrohiliitioii of Lii|Uor Hale „ and Lower Canada, L'liilfd „ „ „ .Sovuivd ... Hvn\ Vancouver Island, History of ,, ,, I'nitod to Ilriti.'sli Columbia ,, ,, Appeal from Vacancy i'l 1'^"^'" "1 tlouncillor of Quelifi! ,, in Suniito by Ueath, &c., how llllod Van Diemen's Land, Appeal from ... Value of Subject Matter of Appeal. See 1000 e/ unj. „ „ DelmteJ Question ... ,, Raised by Interest ... ,, ,, Uuestion of Taxation Varley Sehoji ... ... ... ... Verdict f^et Aside, not an Interlocutory Decision Vessel, I'lijuor License to Vice-Admiralty Court and Jurisdiction _, „ Conferred by Dominion Act Newfoundland, Old Act Viceroy, wlictlior the Oovemor of a Colony is ... Victoria I'll ''!''""«"'. I'l'ivi'i'S^'* "f „ Appeal from Virgin Islands, Appeaifrom Vote of (Speaker of II, of C. ... Votes, Money, by H. of C. ... Voting in H. of C. Canada ... „ in Seimtu ... w Seamen's. See " Merchant Shipping." Warehouse Koceipts Case ... Warrant for Arrest of Fugitives „ Extradition ... .•• TAIK lid 60 74 226 2.) 67 61 34 254 4,6 4 103 4,6 543 o ... 744 ... 1014 ... 37 ... 16 ... 1000 ... 432 ... 433 ... 122 ... 347 ... 423 140, 151 ... 888 ... 60 ... 620 ... 10 ... 12 ... 1000 ... 1014 ... 23 ... 25 ... 23 ... 16 75, 206 ... 827 ... 784 Mm i' t»Mwnin i inmi i |ipui i iiimn i; f i i i H«ii i im iii M iiiiiiw i i»i i i i | ' 1164 INDKX. PAOA Washington, Treaty of, B8 to Fishing.., ... ... ... ... 805 Waste I^aiuls in Provinces ... ... ... ., ... 519,524 Watson, I' „ soc. 91. ... ... ... ... ... 76 " Welfare " of Dominion ... ... ... ... ... ... 2 Wesleyan Academy nnd Scliool ... ... ... ... ... 347 West African f'tttlcnunt.M, .Appial fit.m ... ... ... ... 1C14 West Florida, Old ... ... 95 West India TkkIc, Old ... ... ... ... ... ... eu Westbury, I'Ord, on ]{i),'lit of Appeal toP.C. ... ... ... ... 413 Western Austmliii, Appeal from ... ... ... ... ... 1009 „ Pacific Islands, Appcid from ... .. ... ... ... 1014 ,, Provinces, (ircat Likes, and Fish therein ... ... ... 74 Wetmore, J., on New Urunswick Scliool Question .. ... ... 301 Wholesale and Hetail ... ... ... ... ... 161 „ Licenses ... ... ... ... ... ... 50 „ „ Acts of 1883, 1884 ... ... ... ... 140 „ LiipiDr Dealers taxed ... ... ... ... ... 150 Wild Animals, Killinff, Appealable Value ... ... ... ... 419 Wilful Hreaeh of Provincial Act ... ... ... ... ... 126 Wills to lie executed according to I.11WS of Canada, Olil Act ,.. ... 561 ,, Proluifo of, in the Ci>lonies to lie recognised in U.K... . ... ... 903 Winding n|' of Lisolvent liank, Trustees for ... ... ... ... 75 Windward Islands, Appeal from ... .. ... ... ... 1014 Witnesses discredited, No ]{eason for Appeal ... ... ... ... 424 Words, " Look,'' me-.ming of ... ... ... ... ... ... 847 „ " Jly Practice " in regard to Education ... ... ... ... 370 „ "Civii KiphtH'' ... ... ... ... ... 133,257 „ " Colonial Legislation ... ... ... ... ... 733 „ "Coinptnbles" ... ... ... ... ... .,. 284 „ "Denominatic '" ... ... ... ... ... ... 363 ., "Direct Tax" ... ... ... ... ... ... 115 „ " Exclusive " as regards Kducation ... ... ,.. ... 332 „ „ „ Liquor ... ... ... 67, 165, 199 ,, '' Executive Power '' ... ... ... ... ... ... 7 „ -'Extend Hi ;xnd," sec. 02, .sub-sec. 10, Examined ... ... ... 227 „ General Power overriding particular Power ... ... ... 48 „ "(foo