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Lorsque le document est trop grand pour dtre reproduit en un seul cliche, il est film6 d partir de i'angle sup6rieur gauche, de gauche d droite, et de haut en bes, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la m^thode. 1 2 3 1 2 3 4 5 6 in I ^; ^'77 MR. HALrBURTONS PENSION. ^ Copies of the opinions of the Ju^ices of tlie Supreme Court, on the question raised by the a])plieation of J. C. Haliburton, Esq., for a pension as one of the Judges of the Court of Common Pleas, abolished in 1841 : OPINION OF CHIEF JUSTICE HALLIBURTON. (Copy) This is a motion made on behalf of Judge Haliburton, for a mandamus on the Receiver Cfeneral, to pay him a pension granted to him by the 7th section of the Act of the General Assembly, 4th Victoria, chapter 3. It is resisted on two grounds. 1st. That the right to the pension granted by the Act is taken away by the proviso in the 8th section of the Act ; he having accepted of an office under Government of equal or greater value, than the pension granted in the 7th section. 2nd. That whether entitled to the pension or not, no mandamus can be granted to compel the Receiver General to pay, he being bound by law not to pay any such sums without a warrant from the Lieutenant Governor or Commander-in-Chief. If this were a question between private parties, standing upon their re- spective rights, I appi'ehend that the second objection would raise great difficulties on the part of the applicant, and if a clear claim was established to the pe, ~ion, I should feel reluctantly compelled to decide that i le P'^iount of it was not payable upon a ground that did not at all aifect the . ; ^is of the case, and which arose from an enactment passed to prevent the misap- plication of the public money where it is not due, and not where the sole question v.'as due or not. But^I cannot, for a moment, suppose that where the Government was a party to the cause, they would de.sire to resist the payment of the pension, if it is really due, and that the objection is made more to show that it hai| not been overlooked by their Counsel, than with any intention of urging it upon the serious consideration of the Court. In the case of the Queen vs. the Commissioners of the Land Tax (16th 2 Bench Reports, 381) there was a motion for a mandamus, which the Court held could not be sustained ; but as there was evidently a misunderstanding of the Act under which the Magistrates had proceeded, the Court discharg- ed the rule without costs, and Sir F. Thesiger (of counsel for the magis- trates) said, that his clients (in the discharge of their duty as such) Avould be satisfied with the expression of opinion lay the Court, although it was in opposition to the course they had pursued, and would act accordingly. The Government here will, I am sure, act upon the same principle in « discharge of their duty, and acquiese in the opinion of the Court, if it should be in favour of the party, unless they thinii it wrong, in which case they will of course feel it their duty to appeal from it. The main question, therefore, to be decided upon the motion, is, whether the language of the proviso, taking away the pension granted for life, is equally strong and clear with that of the enacting clause which grants it. In the latter the grant is clearly " during the term of their natural lives." In the proviso it states that in the event of their " accepting any appoint- ment, place, or office of equal or greater value than the aforesaid sum of £300 a year, then, and in such case, the said sum shall ceast? to be payable, MR. HALIBURTON'S PENSION, and from thenceforth shall no lonpr bo prnd *« ^ho Ch of Just,^^^^^ ^ao shall so respectively accept such 'M'l^'"^^"*^'"*:.^^^?' ^^.."^^V.id "" the Legislature \'"« '^"f , /^^^^ J^:^'^^ ^ office "no question could be raised against the removal of the pension, upon res g^ation'of such office, on the oneliand or ^^V h^'eleen 'eau'^\- S " and shall in no case revive," their inten ion would 1;«^;« .^^^^.J^ 'anclTt airainst the anplication. Unfortunately they have not done either, ami it Jfrfns for the^Court to uecide whether the words " and trom thencefc>rth Zn no longer be paid to the person who shall '-'^^P -/j^ Jf'.^ ^^^^^^ sh ill receive that extensive construction. If we «re£U led by the bUer of the Act, the bare acceptance of any office of equal ^"i"^"/"^"*' !"^.T;\]fe short a time, would deprive the party of his pension for the rest on'j^;if«. even if he h^d not pertbrmod any of Its duties, or .enjoyed any « ^ ^molu- ments So that if the Judge had accepted the office oftored to him by Lord Falkfand and had on tluf next day liter receiving ns -mm-i^^^^^^^^^^^ seized wi h a paralytic stroke, which utterly disabled him, he ^^ou tlareby, under the strict adherence to the language of the Ac , have ^ «" f fP^^^^^J^^^ his pension. He had accepted it, and the words of the Act ^ ouM liav e been complied with. I think this could never have ^J^^'V ^^^^ J"^.^,f ,f .^.V^,^ Letrfslature Let us turn our attention to the object they had in view in pas^siiirthe pro4o, that evidently was to «-^.^,^^P,f ^^^^.^^^^^^^^^ paving the pensions in cases where the persons entitled to them should hold ,. tndeniov any office under Government of equal or greater amount. Men ?ond bU ness and of an activ. turn of mind, might fre The gentlemen pensioned n.ight be elected "'™^«" °f *^,S,''"(7'A; .emblv three of them, at the time the Act passed, were st 11 ot age, to rall'thrm?oti%ctive members of that bodv-^asthp^h^^^^^^^^^^ Sle^le'^r :^ of the pensions, b,t no man u, his. ns» ^:ertThfeo1.sSionVvert:>' tW Foviso was 7ucf> as' is no» contend- HZ hi Z g»Sl fo' &* Oovww^ti mi thu,, parties »h. might b. V t s 1 ? I r ( { i well qunlified tor such offices, might be prevented from accepting them, and the Government be prevented from saving the expense of pacing the pen- sion, if they had accepted of them to the injury of both parties. But another c.ise may be put, 4n which the construction sought by the opponents of the application would be injurious to themselves alone. Suppose an office whoso emolument consisted of fees alone ; these natural- ly incrense with the business, and the business generally increases with the growth of the country. Such an office might bo accepted by one of the pensioners, when its emoluments were less than £300 per annum. In the next yoftr it might bo more, and steadily advance until it amounted to double the amount of the pension ; yrived of the pension granted to him for life, while those who had received the amount of their pensions during that long period should still enjoy them. . i. • i.- -i. -n V. To avoid a construction so repugnant to our ideas of justice, it will bo found that the following cases, which were cited at the argument, lay down rules for the construction of Statutes, by which much greater liberties are taken with the words used in them than it is necessary for us to take in this case. The following authorities furnish rules for expounding Statutes : Hawkins vs. Gathercole— 31 Law and Equity Reports, p. 305. This case before the Lords Justices, turned upon the construction of the 13th section of 1 and 2 Vict., chap^ 16, which makes a judgment ip West- minster Hall a charge upon all lands, tenemeats, rectories, advow •^, &c. The important question involved was, whether such judgment bound .'.ccle- siastical Benefices by force of the word " Rectories." , It involred, also, most important considerations as to the true principles of interpreting Statutes. • In this case, Lord Cranworth, when Vice Chanceller, standing on the literal moaning of the word " Rectories, " held Ecclesiastical Benefices bound by the Judgment ; but his order was reversed by the Lords Justices on appeal, because they were of opinion that, though Rectories and lithes,^ constituting Ecclesiastical Benefices, were within the words ot the Act, it literally construed, they were not within the intent and meaning ot the Le- gislature. , ^ , 1 J 1 ■ i. Lord Justice Turner's judgment, taking this view of the case, led him to cont^idor tlie rules for construing Statutes, which will be found admirably stated in his judgment. 'Vhiii learned Judge thus expresses himself : , ^ .u a ^ That Ecclesiastical Rectories and Tithes are within the words ot the Act, if literally construed, cannot, of course, be disputed ; but in construing A -i.. ..i- i»„„i:..^ — .4- *u^ ,..f>vfi° "'ViioVi nv« iiaorl nrA not fllonc to DO rcffarded ; rogoi'd must also be had to the intent and meaning of the Legislature. Ihe MR. IIALiniTRTON'S PEXSTOX. rule upon this subject is well expressed in Stradlinj? vs. Morgan, in IMow- den's Reports, in whieli it is stnted (p. 201)—" The Judges of the law, in all time past, have so far pursued [he intent of the makers of Statutes, that they have expounded the Acts, whu-h were general, in words to be put par- ticularly where the intent wa^ particular;" and after referring to several cases, the Report contains the following reniarkal)lo passage, at p. i-'Oo : — " From which cases, it appears that the Sages of the Law have construed Sta- tutes quite contrary to the letter, in sonie appearance ; and those Statutes which comprehend* all things in the letter, they have expounded to extend to but some things ; and those which generally prohibit all people frym doing such an act, tiiev have interpreted to permit some people to doit; and those which include evei'y jierson in the letter, they have adjudged to reach to some persons only : which expositions have always been founded on the intent of the Legislature, which they have collected sometimes by consider- ing the cause and necessity of making the Act; .sometimes by comparing one part of the Act with another ; and sometimes by foreign circumstances. The same doctrine is to he found in Eyston vs. Studd, in the same Re- ports, page 465. The passages to which! have referred 1 have selected, as containing the best summary, with which 1 am acquainted of the law on the subject. In determining this question, we are, therefore, to consider not merely the words of the Act, but the intent of the Legislature, to be collected from the cause and necessity of the Act being made from a comp.xrison of its several parts, and from foreign meaning and extraneous circumstances, so far as they can justly be considered to throw light on the subject. United States vs.*Fisher and al. ; 1 Curtis 4%, 2 Crauch, 3o8. The question in this case was, whether tlio United States, under the 5th section of their Statute, of the 3rd March, 1707, had a preference in all cases of insolvency, or whether it was confined to persons accountable for public money. The following principles, applicable to the construction of Statutes, were stated by Chief Justice Marshall thus : " It is undoubtedly a well established principle in the exposition of Sta- tutes, that every part is to bo considered, and the intention of the Legisla- ture to be extracted from tlie whtde." Again, "where the mind labours to discover the intention of the Legisla- ture, it seizes everything from which aid can be derived." Again, "the mischiefs to result from the construction on which the United iStates insist, have been stated as strong motives for overruling that construction. That the con.se(]uenco3 are to be considered in expounding laws where the intent is doubtful, is a principle wliich must be applied with caution, and which has a degree of iniluencc dependent on the nature of the case to which it is applied. Where rights arc infringed — where fundamental principles are over- thrown — where the general system of laws is d. This was also a question on a Stiitute as to amount of compensation duo to a public oflicer. Patterson, J., says : " In cases of the present kind the words of a Statute, if dubious, ought to bo taken most strongly against the law-makers. »5o per Juiinsou, J : " If it be necessary that the Court sliould make an election betweeo these . MR. II ALI BURTON'S PENSION. two words, in order to comploto tho acnso, its jhoice will bo immodiately dt'torniincd. hv rocurring to two well known rules of construction, viz: that t ought to bo consistent with the suggestions of natural justice, and that the words should be 'aken most strongly contra proferentum'^ United States vs. Bissett, 2 Storey, p. 389: Storey, J., in pronouncing judgment, thus states the question, and an- nounces the principles of statutable construction, which governed his'deci- sion. The learned Judge says, — "The question arises, whether Mr. Bissett is entitled, upon tho true interpretatiing void, being made a wrong-door by relation. That is an etfect tho law will not give to an Act of Parliament, unless the Avords are luanifost ami plain. '\Vi} must engraft, thcrofove, a niodilication upon tho words of the Act, in this case, for tho purposes of its construction, and read it as though it had been " shall be deemed and taken as part of the said letters jjatent &c., from thenceforth," so as not to make tho Defendant a \Vrong-doer. The only doubt arising, in this case, is from the words of the proviso; but we cannot think the Legislature meant to do so unjust a thing as to restrict a party from doing that which he has a lawful right to do ; and though there is some obscurity in tho words of the Act, we are bound to put a peasonftble construction on them. In this case, the Court, in order to MR. IIALTBrUTON'S PEXSTOX. avoid the ahsimlitv and inju^tioe which wouhl anso from u litcrnl con.tr ic- JonJtl word, o.' tho proviso, intc-rpolat-l th. wonh •' tro.a H'^'"';;^';'-* . See u . the cn.o of tho Uvorsoors of Wigton vs. tho()vcr8oer. ot Sna.th, IrtQuccnV^^^J^^^^^ i" >>l'i^-1' '''^' (^.urt umM-tod words .Hto a n.; ot"a s". U^^^ >vh'ich u'Mvn a diflVrtMit moaning to that chui.e. m or.hj l^Sct what tia^colloctod to be the ge..eral .noaning of the Statute itselt, ftnd of other Statutes uiatU- in pan mnten-i. . , ,, v For these reasons, then, 1 eon.ider the api.lieant entitled to h.« pension, ""l' Because' the plain and express lanjrnngo of the Act pives it f<>r life ; and the language of the proviso does not as r>la.nly and expressly state tlmt it shall not revive upon the resignation ot the otlice. 2 That a ^on.fruetion that it should not revive would defeat the ol^,ect of the proviso, by preventing men of cmiuon prudence trom accepting offices ..f equal or"little greater amount than the pension. 3 Tluvt such construction might be injurious to both parties, and in the latter case to the Government alone. . 4 That common sense and common justice require a construction that will not place a man who has servt^d the Province for litteen or sixteen years IZ therebv saved it nearly tive thousand pounds, in a worse situation than those who have done neither. ♦ OPINION OF CHIEF JUSTICE YOUNG. In the Supreme Court, 23rd December, 1861. In re Thomas C. Ilali- burton, Esq. The question in this case has arisen out of the Provincial Act, -4th \ ict rhan 3 which abolished tho Inferior Courts of Common Pleas, and by he^Tth,' se ton granted retiring pensions of Three llun.lred Pounds currincV per annum, to the four Judges then l•^^s.dlng in snid C ourts M^jScrHaliburton had been appointed to the Mi. He Division in 182 , and had presided therein for twelve years, when the ( 'ourts were abolished. The additional labour cast upon the Suj.reme Court ...duced the Legisla- ture to authorize the appointment of a tifth Judge, and on the same day ha? the A^ pa«^ed the new office was tendered to Mr. ah burton, w-^io accep ed it, and was Gazetted 31st March, 1841 By the 8th section of t^io Act it was provided, that in the event of the Judges so pensione.l accept- kig any appointment, place, or office under Government ot equal or greater "due than the aforesaid sum of Three Hundred Pounds 1'^"^ a.'"""'' ^ lu."' and in such case, the said sum should cease to be payable, and from thcnce- ?oit rd shidd o longer be paid to the Judges who should so respectively accept such appointment, placl. or office." Judge Ha iburton in Vo^nioiiaci nevir drew the pension which was merged in his salary ot heven Hundred pounds a year as Judge of the Supreme Court. He continued to discharge the duties of his office till August. iSoG. when he sent in his resignation, ha - ing p>-eViouslv endeavoured, but without success to induce the LegislaUirc to pals a special Act, reviving the pension on his ^^'tire.nent In 18^jJ he applied to this Court for a mandamus to the Il-cciver General, whuh tl. . durt refused; and the Provincial Government having now concurred with Mr Haliburton in the statement of a case, it has b.-en argued before us with a view to obtain an authoritative decision of this ( ourt, as to his riglit to the pension of Three Hundred Pounds a year, fr..m tlie date of his resig- nation in August, 1850. The question t-irns upon the construction ot the 7th and 8th sections of the Act of 1841, whi.-h ailords a wide ticld tor subtle :,„ .i and in-enious speculation. On the one hand the meaning is said tote perfectlv clear and obvious ; no language, it is said, could have been used W thc'Legialuturo more plainly cvinciug ita micut and purpose, MR. TIALIBTinTON'S PENBIOX. while; on tlif foiitt iiiplati'd othor airou8 decisions, aiiJ have tanked tne intellect of Lawyers from the ear' 'est time. Some nf these, it will be proper to re- view, but liofore we touch upon the cases, let U3 consider the object and intent of the Act of 1841. The Lcfjislature had seen fit to inaui^urate a new judicial policy, and to transfer the whole common law >)usine9s, except the rcovery of small debts before Justices of the I'eace, from the Inferior to tho Supreui'* Court, — the four Judges who had been appointed to the former, and had .'^everallv abandoned their eTiiployment us practising; lawyers, for n scat on the bencn at a very moderate salary, were thus superceded without any fault of theirs, and lost at once their position and their income. It was an act of simple justice, therefore, to <;rant them pensions, which, although bv no means extravagant, bore a fair ])roportion to their salaries while employed. The Legislature in granting these pensions naturally contemplated the chance of the pensioners bein;. :ipp(»inted to some other office, or place under Govern- ment, of equal or greater value, on the acceptance of whicl they directed the pensions to cease. It is probable that the sections on this point were framed without much consideration, and that but little thought was bestow- ed on a multitude of contingencies that might possibly arise, and which have been put in all varieties of shape in the course of this discussion. If we give the Legislature credit for acting in good faith and with good sense, as wo certainly ought to do, most of these cases might be answered without much difficulty. It has been urged, for example, that one of the Judges might have accept- ed a Commissionership or any other temporary office under Government yielding him three hundred pounds, for perhaps a single year, or that ho might have accepted a permanent office, and the week after been struck with paralysis, and been obliged to resign, and it is asked whether his accept- ance of otifice in either of these cases should put an end to his pension. Now I can have no doubt, that if the question had been put to the Legislature in either of these cases, they would have said — no, and I have as little doubt that in a number of the other cases that have been suggested, they would have given the same answer. On the other hand, if one of the pensioners accepted a permanent office of much greater value, and of higher dignity, to which no puuf^ion was attached, and the question had been put whether he should occupy a more advantageous position than any oi his brethren, and, on his voluntary retirement, should en- joy a pension which was denied to them, I have as little doubt that the Legisla- ture would have said, no — as their action on this pension sufficiently evinces. The.sc. however, are matters of opinion and of conjecture ; and with a con- sciousness that we are aiming at the intent of the Legislature without any cer- tainty of arriving at their real meaning, we must content ourselves with weigh- ing probabilities, first of all ascertaining the extent of our authority in con- Btruing the act. In the course of the argument, the Imperial Act of 18.34, 4th and 5th, Wm. 4th, chap. 24, amending .ind consolidating the law for regulating pensions in the Mother country, was pressed upon our notice. It will be found, however, widely different ft'om our Act of 1841. The 19th section of the English Act provides, that every pensioner shall be liable, at all times, when called upon, to fill, in any part of the Queen's dominions in which he shall have al- ready served, any public office or situation under the Crown, for which his pre- vious public services may render him eligible; and that he shall forfeit his pen- sion If he shall decline to ttike office and execute the duties tliePeof satLsfuc- torily, being in a competent state of health. The 2{)th section provides, that, in case the pensioner nhall be appointed to fill any office, in any public department, his pension shall cease to be paid for uiiy period subscqueuL to suclt appointment, if the profits of the ncvv office shall be equal t© those of kis farmer ofl&c« ; and if not equal, then no mor« of MR. HALIBURTON'S PENSION. his pension shall be paid to him than ^hat, with the salary of his new appoint- ^"\ttorS:;\l?vt to ttt:;d: :?Dopartments their power and an- thJ-JtviodistntsanTpe^^^^ the public service, without compensat.on ; Ind by he XeSrihe Act does not extend to any offices m the Courte ot Justice Here is a well-digested and perfect system, dispomng of many of the Sons that were urged upon our attention at the argument. Under our Z^^;J:J^:^\^^^;r. ou. ; and i" oti.r rej,ec^ tl. ^ fl,P nlainlv distinguishable. I do not observe any provision in the JLnglisti Aci L a rS of the old pension on the new appointment ceasing, by resigna- tion or otherwise : and. although I have sought it, 1 have not been able to ob- tain any iSmat on of the usfge on this head, except in the two opinions from vi^hsh lawvers which were read at the argument by consent. \V e are remit- ^d^backTerto the terms of our own Act, and the rules of construction that ;re to be found n the books. It is not necessary, I think, to ravel through the Numerous c^es upon the construction of Statutes; to reconcile them with each X, wouUbe n^o easy task. Judges of the greatest name have sometimes SenTnnd sometimes relaxed the rule : their views have been modified by Lfparticular cas. they were deciding, and, occasionally, it must be confessed ntheTr anxiety to escape from some obvious mischiet or "'^^"^.^"^^"P^'^^hey have assumed the office more of legislators than of udges. ^oth.ng is more common" Tn their decisions, than complaints of the hasty and careless manner rXel Acts of Parliament are framed, and "ecessitatmg a looseness of con- struction from which the Courts would have otherwise reframed Several of the tr^ cUedlt the argument ;.rose out of this necessity, and do not profess *^'n%'nfof tSsHi^^M^^^^^^ -Hart, 14 C. B 357, Chief Justice Jar^is had recourse to what is called the grammatical or golden ru e of construc- tion viz " " to give to the words their plain, natural meaning, unless it is mani- fSt'from the general scope and int«ntW of the statute that injustice or aD- anrditv would result from so construing them." .„ ^ , .• n„ fioTmuch to be said in favor of this rule, which we will find continually cited aln fundamental maxim, applicable to all sorts of instruments as well fus ?lL?/of Parliament Yet, in the most recmt case, that of Heugh vs. Es- combe 4th Sw Tmes EeporL, N. S., 518, tlie present Chief Bai-on of the Exchequer, while inquiring into the meaning of a contract of a very doubtful compSn, and weildiing'the arguments, on the "- -^--i^Vwlu^^^^^^^ nresses himself in these terms : " I disclaim being at all bound by what 's caucu ti eTaturTl and ordinary meaning of words. There is a case of Rex vs. Ha U, 1 B and C where I^rd Tenterden, 1 think, very properly laid down a very d^c en rule from that which some people have called the Golden Rule of g"vmmatioa constrSon I think the gold is oRen of such impurity, that the rule is not wo" th a Earthing, for the gr^ammar which people frequently use, '"deed the rules rcrammar thf^selves, i'n my opinion are far less <^«^^-^ -" ^'^'^^^^^^^^^^^ called the common sense construction that Lawyers would put upon an instru m nt of this sort, in endeavoring to get at what was f^^, 'T -^""^f^^^ ,^t parties." Now, it i.. obvious that the same principle of «^" f,/'^"^? ™ ^^^ Lstrue an instrument, must be applied in construing a statute. Sk Fredendc Pollock whom 1 have inst cited, is a lawyer of no mean repute, and be speaks The sentiment of modern times.' Let us contrast his opinions now, w.th thoso of other Judges, older, but equally eminent, which were pressed ui>on - " th^ argument on the part of the Crown. "I am rcadv to declare, ha.d Lord Den man, 4 Neville vs.' Manning, 427, « that where I find the words ofj^ 'Statute perfectly cle^r, I shidl adhere to those words, and shall not allow "'y^elt to bo SfvTrted from the appHoation of them by any supposed ^^^]''^'^ZZ''Th^s kind or other, as to ihich Courts of Justice are very often much deceived. T us urincinie la flaopica ny auiuoniy ct^iiunv i:--^-.^ ••• . ' KVhief Justice Parker, must not do v olence to l/"«."«g^.' ^"^ev ,nav Lo meaning, where no doubt or ambiguity exists m the Act itself. They inav use a sensible and reasonable interpretation to legislative expressions, which are MR. HALlBrRTON'S PENSION. arc obscure, but they have no right to disturb those which are clear and intelligible." These are authoritative expositions, and pointedly given ; j'et, it is undeniable that several of the cases violate the plain meaning of the words out of regard to the intent of the Ixjgislature. An example of this is to be found in the Court of highest resort in these Colonies, in the case of Calder vs. Halkett, 3 ' Moore's P. C. C. 74. The Imperial Act 21 Geo. '6, ch. 70 sect. 24, for the pro- tection of Provincial Magistrates in India enacts, " that no action for wrong or injury shall lie in the Supreme Court against any person, whatsoever, exercising n judicial office in the Country Courts lor any judgment, decree, or order of the eaid Court ; nor against any per.son for any act done by or in virtue of the or- der of the said Court." It will be observed that this ei.actment is subject to no limitation whatever. Whether the Magistrate had jurisdiction or no — whether he acted in good or bad faith the words of the section equally protected him from an action. Accordingly, this is one of the meanings which, as the Court admitted, may be atlributed to this clause, but which they rejected as inadmis- sible, and iiiey decreed that the true meaning was to put the Judges of native Courts of Justice on the sjime looting as those of English Courts of similar ju- risdiction. It is obvious, therefore, that the Courts have taken libertiorary appointment, and on its termiuiition his pension had been withhold, I think this Court would have been justified in dedarhig that such a construction of the Act of 1841, in the words of the rule I have al- ready cited, led to a manifest repugnance, and was at variance with the inten- tion of the Legislature. But is the same principle to be applied to every ai> pointment that may be accepted, and to extend to all cases that may possibly arise? Is it not to vary with varying circumstances, and if held to be inflexible, w.ould it not involve a repugnance, equally nmuifest on the other feide ? Let us not forget the basis of the maxim, that we are to adhere to the ordinary meaning of the words used in the Act, unless, in the particular case, some inconvenience or injustice is to follow, which the Legislature cannot be supposed to have Ibresceii. And who are the judges of that inconvenience and injustice? who are to interpret the will of tho Legislature, and collect from the Statute it8 true meaning ? There can be no other but the Court, who aT« called ! J MR. HAUBURTOX'S rENSIPy. * . \, This ia a responsible, nnd it may be, a very delicate task ; upon to construe it. Ihis w "■'^p"?""^ " ' . ^- submitted to them. hit it is a duty they cannot shrmk !'?» '^^ '\\'^'''^i^ inferior Courts, with a One of these gentlemen then, ^/J" « pre^^^^^^^^^^^ .^ ,^,.,,,1 , seat salary of £400 a year, and bema «"'''".y"e,Xf "''*'", He nay, or may not, on th"^ Bench of the Supreme ^^-^-^^^-^^^Jj (^ j " p "^on, '.^ it would in accept the olfice ; a retusal w 11 n no way ««^"^^ ' P^,^ ,^5^ '„„.„ ,,i,i. Bat England ; in«^ acceptance '^^"^."'^^y *^ "''^^'^[^o'^S^" ^^^ more than doubles his he does accept it, and thereby J^P^^^*^^^, '^i ^^ '"^"^ that moment to the income. What relation, then, 1 .v^k, ought 'f ^^ ^J .,,^ „f j^,^ , ,vho, for Government and to Im colleague "•- « ^^j'^;^!; X^^^^ the ornaments of the a quarter, or, it may be, or a h«l^ ,«^" "'/'J ";^, an advantage and a privilego Bench. Is he, who has just ««c«»de'» ^tj ° "Z,Tr.r.y moment, to resign vvithheld from them? =hall ^^ *'«'" '''P'^;''; n-is Court, and, ns ft matter his office, which he holds durmg K-ocl ^ '^J^i no c ^ ^^^^ „..^ ,„. ot right, to resume or to enjoy a pension to w Inch »' « » j, ^j j^ (j„u,.t tUled^ To me, this would seem a most '";»^-. ^''^^^"^^^^^^^^^^ ^^to correct it. to saaction it, would be, m my f'^^^:^.^^^ ^^ ^Ch.'.. plainly expres- Here is a case where the w. 1 ot the ^ej,"«l|^ture, a.^ i ^bsirdity, nor re- sed, may be obeyed without any wrong en F;^.;'^^ ^j,^ ^J,^, ^f the pugnance, nor inconvenience, justif^mg us n "J* "S ^^,,^», ^1,^ letter, faw, where its internal sense as I ^^j;"""^.^ ^'^.^ t-^a sTatute, it is a rule We are told in Bacon's Abridgement that, ^^ ' Xt he intended, and then to suppose the law-maker !--« ; an^ ^a'orble ana up 'g?;^ man, might have to give such an answer as he ^^^ "« ''//"^Ycannot but believe that it the have been, that he ought not. ^ Judges, not as it I have considered this n.x er, as it bea « ^'PO ^ «'j \ g ,^^^, j,,,^ bears upon any one >fl'^'';i"'*>' ,^"\Xeor'hi Court lor fifteen years, ha Haliburton,inholdingtheolhccofa J d^^^^^^^^ j- ^^ saved the Province £4,o00, I «;;"^«^,.,^" ^/^^/oO a vear more than h. would drew for the same period from the lea .^> *f ^^^^J.^^^^f j,,,iei«l labours not otherwiHO have been «"^'^»^;1. ^^' "" * ' ^ m re a u^^^ charms of intellectual -^^:t^^^S^ r r r!n r = i:r^\;;t^;:;srss:r=;iisr;i;r;;^r^ Revised Statutes. OPINION OF MR. JUSTICE BLISS. The Queen, vs. i The Receiveu Geseual. ) 1 Ex parte Ilaiiburton. Pleas, and I'lesiaent of bes»ion. '^''f^ •■--■;;•- . 3 .^..^ passed. granted for life to the first Justices thereof, and an additional Juug MR. HALIBTTRTOX'S PENSI0T7. 11 Supreme Court was provided for. This office was iminet'intely after offered to and vms accepted by, Mr. Haliburton, who continued to hold the same until the month of Augu.'^t, 1806, when he resigned it from ill-health. The question now submitted to us, is, whether he is entitled to the pension, ;inder the above Act, from time of his resignation of the last office. The claim i.s resisted, on the part of the Officers of the Government, on the ground, that, by the acceptar 'of the office of a Judge of the Supreme Court, being one of greater vaiuii '; .n the pension, this pension ceased from that period, absolutely and for e'-,, . The Courts of Common Pleas had been one of the ea.liest institutions of the country ; but they had not been filled nor presided over by professional men. The evils and inconveniences arising from this, gave rise to the Provincial Statutes 4 and 5 Geo. 4, pas.sed in 1824, by which the Province was divided into three Districts, for each of which a first Justice of the Court of Co-nmon Pleas and President of the iSes.sions was to be appointed, who had been regu- larly admitted, and en.olled as an Attorney of the Supreme Court, and had practised in hi,s profession for at least ten years after his admission. The salary provided by this Act for these Judges was £400 u year, with travelling fees to the amount of .£50 more. This Statute continued in force unlil 1841, when the Legislature, considering that the administration of justice by two diflierent Courts of Common Law — that of the Supreme Court and of the Court of Comn\on Pleas — was inexpe- pedient,-and attended with injurious consequences, as is stated in the preamble of the Stat 4, Vic. c. 3, by that Act abolished the latter Courts, and the office of First Justice of them. To pass suc.i a meas\jre, by which those learned gentlemen, who had relin- quished the practice of their profession and taken office under an act perma- nent on the face of it, would be deprived of their situations without pr viding them with an adequate compensation for the lo.ss and injury which they thereby sustained, would have been a great and manifest injustice. The Legislature, therefore, provided, by the 7th Sec. of the Stat., that they should receive from the Public Treasury, during the term of their natural live?, respectively, the sum of £300 a year. The ne.vt Section, the 8th, contained the following proviso — "That in the event of any of the said Firt.t Justices accepting any appointment, place, or office, under Government, of equal or greater value than the aforesaid sum of £300 a year, then, and in said case, the said bum shall cease to be pay- able, and from theucefoiward shall no longer be paid to any of the said First Justices who shall so respectively accept such appointment, place, or office." In resisting then this claim, the Government rely on the words of the Statute, and their strict literal interpretation ; and, no doubt, it is a sound rule of con- struction — a rule of practical common sense, applicable alike to Acts of Parlia- ment and to all other written instruments, to collect, if we can, the meaning from the language which is used, and to give to words their plain, obvious, and ordinary signification, luiless it clearly appears, or can be fairly inferred, that the literal meaning could not have been that which was intended. But to get at the true intent and meaning of the Legislature, not the words of one section only, but the whole Act, a.s far as it is necessary, must be regard- ed. ^Ve must look further to the circumstances under which it Avap passed, to the object which they had in view, the motive which was likely to have govern- ed them, and the particular matter or thing, against which such a proviso Avas meant to guard. We are also, when there is any doubt or obscurity in the lan- guage used, to look at the consequences to which a strict, literal interpretation would lead ; and if we find that tliese would be absurd, unjust, or unreasonable, we nuiy fairly conclude that such interpretation could not have been intended, and cannot be the correct one. Thus it is said in Fulmerston vs. Steward, Plowd. 109, a.: "The Judges who were our predecessors have sometimes expounded the words quite contrary to the text, and have sometimes taken things by equity quite contrary to the text, in order to make them agree with reason and equity." Thecase of Eyston vs. Studd, Plowd. 4G3, is an instance of this. The Statute of 11 Hell. 7th, chap. 20, had enacted thrii if any woman who had an estate in dower, or for term of life, or in tail, jointly wilh her huaband, in any lands of the pur- chase or inheritance of her husband, should alienate them, it shQuld be void. ^ earned wean, h^in, land, in ^- --^j^l^Jrhev lu^SS t^St a fine under ^vbich the lands ^^^^ ,^' '^l" Xtook a ceond husband, and they special tail. The husband died, »"^V„^ tlTe lust Is no Ibrleiture. though by too also levied a fine. It ^^'as held ^l^f t^« J^« J^ "j^^ j,, i,„«bnnd and Avife, force of the first fine the l^n^Yv^re ^^ted .1°'^^^^^^^ "\.p^,. ,^^^ ^onrt took it and so came directly withu. the ^^"^^J " the b^atntc. ^^^^^^^^^^^^ ^j^^ ■,, that the intent ot Statute, ks "'ll'^j-^X.ch are within the words of Statutes are letter of them: for o'Jent.mes th mgs w u^^^^^^^ , ^,^„,, ^i,, i„,ent out of the purview of then,, ^^' "^ ' /^^^ \^,,^ ^^ "^„,truo an Act of Parliament of the makers of the Act; and he '^^f^^S ArtheTords, and the intent of is according to the intent rather ^^^'^^"^^Zny^ho had jointures the Statute of U Hen < h chap, f"'.^' J;;;^,,'?"^^ from the executors of their which proceeded origina ly from ^h'-''^ hu W^; t^ rLirs oi their husbands," husbands,fromdismheritmgordouigo herujuo to^^ ^^ j^^^^..,^^^ has the law on his side ni all cases. comnared the letter of the Plowden himself commentng on this case, co^P^rej ^^^^ ^^^^^^^^ Act somewhat q-'"^^-, to the sije of a n t ar^^^d^^^^^^^^^^^ - ^^^. ^,^^ ^^.^^^^^ ^^ "and as you wui be no ^f/^J f^^'^/^;" Vou re y on^^ "pon the letter, and as yon will receive no bencht of the law it .^«" ^uy " •> ,,^. .ij^i,, go the fruit (he fruit and profit of the nut lies m the kernel . d ) o , n 1 1 ^^ , . ^ ^^,^^^ and profit of the law con^stsin he sens^ ^^^^^ ^ ^^^ ,,,,. happens that, when you know the »^ttci, }ou ki .1,^ utter, and sometiines tii the sense is more -"t j-d -ul -^^^^^^^^^^^ letter accord- more large and extensive ; "^"^^^^^^^f^ ^"^''^^^ o , 5^,^ ^he sense was more ing to its discretion. The '^ase just ^'t^^ ««"«!" ^ ^ 3,-7 j, ,, ,,ite one, in contracted than the letter. Ma th.son v^. Har^, \t ^j.f .^^d s, and other words .vhich a more enlarged construction ^^^^^ ^«'T\^^ J^i^/;^ J'e^^e, y by distress was supplied, in order to give that .^^^^JJ ; ' ,^^ ^.^^^ me viThin^the letter of the ext;ndedagain.stanoccup.erof landj^vlodu notc^^ p^^^^^^^^ 2^g^ Statute. 1 will cite one «ther pas^^ige, to the am^^ approbation by Stradling vs. Morgan, because it l^«« X^^ol" 'il L EH. HUD, as'the best sum- Lord .3 ustice Turner in Hawkins vs. Gatheicol* ,6li^. r.. u. , mary of the law upon thid point. „„i.,„«,q ^hitntes ouitc contrary to " ^rhe sagas of the law, heretofore ^^^J;,:;^!'^^ ,thtm^^ all things in the letter in some appearance and ^ ^^^^^^^^^^^^^^^^^^^^^^ and those which ,he letter they have expounded to f ^^"\' " /'^^'''"^^t^'tiuVhave interpreted generally pro' ibit all people from doing ch "» ^^^' ^1^/ ;„ the let- fo permit 'some people to do it, and those ^ "^^^ "»; ';^ ^ Ixpositions have ter" they have adjudged to reach to some F'7« J, f^/^^^^ , i,;,!, hey have col- always been founded upon the >»t«;;t " the Leg. to, ^^ J ^^^ ^^^^ lected sometimes by considering the ^-^"^^ The oth^r, and sometimes by sometimes by comparing one P;^; "^^^'^i\,*,^ '' JiJed by tlie intent of the Le- foreign circumstances,— so that they haxt l>^^".f;"7^^°. /^^cessity of the mat- gisature, which they have always t«l^e" «^^°rdn g to^^^^^^ fer, and according to that which is ««"'^°";" ^ I^r I 'justke^urner, I need not After the commendation of this passage ^^^ f^[ \^f, f ^^^^ ' ' ,„eh there are. cite any further authority to the same ^^^^^'^^SuSerpretation, which These rules bring, as Kent says ol them, "^^^^T^ ^''^^l " Zbation of ages." has been accumulated by the experience, and V^^f Ti^l'Umers of this statutt"had Let us then enquire what the object was w Inch t^^^e tac.s oMl s in view, and agains'. which they me>^nt to ^^a'rn ifsC.ming aid construction, standing the cause and necessity of it we shall lea n ' « "\'^'"'" ^ , j ^^ ^^„,q The/had granted, as we 1-- seen a pension or hu.t^^^ >- compensation for the larger official ^«^1'"T ° ;vhi<^h tiie> lad dep ^^ ^^^^.^ *^. I... c ii,„;.. ,^n\r,r, Thpsft crentlemen were siiu >" i"'^ ' b , , , me uuoiiiioH ui t"^M ••"•••• : ~^ , ;,;.„ ^j,n niitfht well look lorwara lu lives-they were men of learning anc '^'^'l^*^' ^j'^JXcl7their now reduced fill other oftices of the highest emolument, and ^o.^J^'"^' "*^". ,? 4^0 miiht S^come. might perhaps of itself create some necei.«ty. Th« P^Wm? too m ijp MR. HALIBURTON'S PENSION. 13 require their .services in Fonie new situations wliich Avould be for its further benelil, if the Pahirien of oili.-o were substituted for these pen-sions, and the public treasury thereby relieved. Did the Legi^^lature, then, desire to prevent this, or to throw anv obstacle in the way, by anv harsh or uunccossarv restriction or condition ? Ihe bene- fit to be derived uiider the Statute, bv which one Court only was to be upheld, had been purchased at the expense of these Judp;es alone, whose situation had been sacriticed for the public good. Surely they were deserving of every favourable consideration. Could the Legislature, then, have intended, when they were but di)ing a bare act of justice, in granting ihein this compensa- tion, to make it almost penal if they accepted another office of equal value, and subjoct them to a forfeiture of their allowance, though the equivalent office mk'ht also cease? Yet this would really bo the ettect of the lit^-nl construction of the proviso as contended for. These Judges, whose office was then abolished, might emplnv their time, aild industry, and talents, in any private undertaking, however lucrative, and hold any office, ot any va- lue, in any other colony, I take it, without undergoing the loss ot their pensions. ^ ^ i. i ^ Why was it, then, that a situation under Government, of an equal or greater value, was to deprive them of it. The only fair, legitimate, reason- able ground which cnn be suoo-ested or conceived for this restriction is, that the L-!U-ty. The Statute had pas^iod in invitos; and \hether wo view it as a benrlicial one, so far as respects the ganting of the pension, or penal, as respects the forfeiture or determination of it, we are alike bound to construe it most favorably for the Judges, The proviso, too, which, is to defeat a right already created, requires to be construed strictly, so as to give it no further effect than appears be- vund a doubt, to have been intended to be given to it. This, says Storv, J., 14 Curtis, 61, "is a rule of law which has always prevailed, and become consecrated almost as a maxim in the iuterjiretation of Statutes." (See also the judgmt. of Abbot Ch. J, in Luscombe vs. Yates, 5 IJ.and A. I3o4). With these doubts springing out of the Statute itself, let us see to what consecjueMces a strict and literal interpretation of this proviso would lead. If the mere acceptance of the ottiee of equal or greater value is to put an end forever to the pension, then, as was init at the argument, if an office bo accepted, of equal value at the time, but which was reduced subsequently below £300 a vear, the pension should still cease. So, on the other hand, if the office Avhich was accepted was. at the time, below £3()t), and afterwards was increased, as where it depended on tecs, the pension would still be on- joyed, which was obviously never intended l)y the maker of this law. 'Again, if the acceptance of the office is to work the forfeiture of the pon- sion, then it would be lost, however short the term of the office accepted might be. and in whatever way occasioned. Ill-health might incapacitate thi?^ officer for the discharge of his duties; he might be removed even without any fault, or the office itself might be abolished, just as that of the First Judges of the Court of Common Pleas had been by this Statute. The situations of Provincial Secretary, of Treasurer of the Province, and that of Collector of Excise, were, at tlie time of passing the Act of 4 Vic, all, in efi'ect, permanent life situations, or so considered. They were all of greater value than £3(X) a year, and to any of them these ex-Judges might possibly have been appointed. Since that "period the political changes which have taken place, and which could hanlly then have been foreseen, have entirely altered their character. One has been abolished, another re-modelled, and the tenure of it, as well as that of the third is no longer permanent, but transitorv and .shifting with the fluctuations of party, like the flux and reflux of the tide. Can it be that the acceptance of any of these offices, now so evanescent, but then little likely to l)e so, shouhr deprive the Judge of his pension after he had ceased to hold the equivalent office, from causes over which he had no control ; and can we suppose that the Legislature intended anything so unjust? It is answered that the Judj2;e accepts the subsequent oflice at his ])eril. and takes the risk of any contingency on himself. But why should we suppose that the Legislature impo.sed on him such a risk, or offered him the harsh alternative of remaining inactive on his diminished income, or of accepting an office which woidd relieve the public purse, on the condition of forfeiting therel)y his pension f(»r ever. It has, however, been further argued against the present claimant, that if he can now have his pension he will be in a better condition than the other Judges of tho Supreme Court, and that it never could have been the intention of the Legis- lature to give him this advantage. It might be sufficient to reply that the two stand in a dill'erent situation, — the other Judges having had no pension when they accepteil oflice, had none on which they could fall back. But because tney would have none it does not follow that the Legislature meant to take it a»vay from him who had, after he should cease to enjoy the equi- valent salary.' But the proviso was not made to meet the case, only of an acceptance df a Judgeship of the Supreme Court. There were four gentle- nieii who are the special ol>ject of the (Statute which had reference to all alike, and to the acceptance by any of theni of any offices in the Province which were of e(|ual or greater value than the ]MMision, asul it is with refer- once to it.s general and more extensive application that its meaning is to be gathered, and not to be limited to the accidental circumstances of any of tho Much .stress was laid by the Attorney General at the argument on tho force of the word " cease " in tho proviso, as ainouuting to au absolute final MR. HALIBURTON'S PENSION. 15 terini\iation of the pension upon the acceptance of the office. Uncloubtedly it has all that force when the senne requirca it, but that isen.se must not be looked for wholly in the word itself, and we are still thrown back to enquire what was the whole meaning of tiie Lemislaturo. If they had said that the pension should cease to be pay.iltle during the enjoyment of anotlior office of c(|ual value, the word "cease" would clearly have a meaning limited to the enjoyment of the office. So if it could be fairly .seen that this was the meaning of the Legislature, the word " cease " would in like manner be restricted to that sense. It is observable that there are no words which e.v- pressly declare that in case of such acceptance of office the pension which was for life should forever cease and determine, none that unequivocally express that;— the Avords are, that "it should cease to be payable, and be no longer paid," which would be quite consistent with its ceasing, and being no longer paid whilst the said office was held. And here one cannot fail to notice the striking diffi^rence in the language of this very Act, when the absolute permanent cessation of a thing is intend- ed to be expressed. The Act begins by putting an end to the Court of Common Pleas. That was the main olijoct of the Act. All else was subor- dinate to and arose out of it, nor could it have been doubted that such was the intention of the Legislature, however losely or obscurely they might have expressed that intention, for it runs through the whole Act, and is the verv substratum of it. Suppose, for instance, that they had said that this Court of Common Pleas should cease and be no longer in force, using much the same words as are in this ])roviso, that would have been quite sufficient there, because it is beyond a doubt apparent from the whole Act that a perpetual abolition was' intended. Yet in such a case as that, how have they expressed themselves? By the 2nd section it is enacted, " tluit hereafter the Inferior Courts of Comiiion Pleas shall be abolished, and their jurisdiction and authority entirely cease and determine, and that the office of tirst Justice shall be abolished and cease. Now here ag«in I may remark, that if the moaning of the proviso in question was as dearly'^to be collected from the Act, as is the meatiing of the second chiu.^e of it, I should consider it of little moment that more words or more forcible ones \u\d not been used in this case as in the other. But when as I view it, the literal meaning of the proviso is opposed to the spirit and sense of it, 1 think it of some moment to compare the language of the two sections, and the al)sence of the more forcible and emphatic expres- sion in the i)rcviso, " entirely cease and determine," which were niade use of in the 2nd section, would "tend also to induce me to put less reliance on the literal construction of this proviso. 1 cannot therefore give to it that meaning which would entirely abolish and put an end tor ever to a ]»ension already granted for life, upon the mere acceptance of an office of equal value 'alone, pregnant as it would be with results so opposed to one's sense of justice, and without adequate motive or . cause, or necessity for its adoption by the Legislature. The acceptance which the proviso speaks of is not the acceptance of the offer of the situation, but the acceptance of the office itself which clearly implies the possession and eni<»ynu'nt of the office. What the proviso then intended was, that with that the ])en3ion should cease to be payable, and be thenceforward no longer paid during such possession of the office of that equivalent value. So T understand it, and to effect this construction, I would supply any words, if such were necessary for that purpose, as the Court supplied them in Mattison vs. Hart, to carry out the meaning of the Statute there. I have already referred "to the Statute of 4 and 5, (ieo. 4, by which these First Justices of the Common Pleas were originally called into being. That Statute provided " that it should not be lawful for any person appointed to these situations to have a .seat in the House of Assembly, nor to have a vote, nor interfere ii. any election, nor to practice as any Attorney, Solicitor, or Proctor, in any Court of Law or Equity within the Province, nor to hold any other place, appointment, or situation of profit under Government." Here are terms of absolute, unqualitied prohibition, without limit as to time or circumstance ; and if the letter of the Act is alouo to be regarded, 16 MR. HALIBURTOTS ^EXSION". H w^uUl exduac these Jud,e«, not only dnrin, their tenun. of ^^^ but htrt ami privileges thoro men. .„. .,.. «... - exercise ot Ihesc ^'''Who can clnnbt that sneh a literal constnu-ti.ni was never intended and that he Leuislature meant ..nly to restr,..., these . udRe. l.y this proh.bi- ,„ lilsttlH.v l.eld the othc-eofa J.ul.^o; that, when that .eased, the re- «ti-ktion ceased also ? Yet the prohibition there, is as positive as the proh.- lotion here; and if the w.rds had been "shall cease to vo e, and shal no lon-er vote &c..'-whiel, certainly are not stronA'cr than the w.-rds vv ich tev have used, the two cases would have been ident.cal m the letter as hey ar?in substance at.tl'^"^'; ^^ * was of equal amount with the pension. There is added in the Kngli.>h Sta- tute a further clause, that if the new office should be ot less amount than the o'd one, the eomnuitation should no further be paul than wouhl make up the ditVerence between the two. This Statute also makes it o»>l'g«f<;[y on all officers who receive such commutation or allowance on account ot tlie abolition of their office, to serve again in any office for which their previous services mav have rendered them eligible; but 1 do not consider that these matters at all aflect the (piestion : so that the proviso in the two Statutes . mav be looked uiwn as. in all respects, substantially the same. V'e are told, then, that under this proviso, so similar to our own. this commutation or allowance, which ceases upon the pensioner being appoint- ed to a subsequent office, aaain becomes payable wh.-n that subse.iucnt offi.-e ceases to be held, that i. t.. say. that the English Treasury recognizes that ri'dit and adopts that rule of .-onstruction of the Statute (>n which Mr. Ualibm-ton founds his claim, if this be so, it wouhl. no doubt, ''-'ve nuich weiL'ht upon the present .[uestion ; but in that case, we ought to have the fullest assurance that such is the rule and practical acceptance of the meaning ot the Statute bv the English Treasury. The mere assertion that such is the case, is far from sutficient for this Court to act on, even if we could then look upon such usage as an established exposition of the otatute But the statute of 4 and 5, Win. 4, was passed to alter, amend and con- Bolidatethe laws for regulating ponaions, and one of thew) laws mentioned MR. nALIBURTOX'S PENSIO:Pf. 17 in the preamble of the Statute was the 57, tico. 3, c 65. By this (Sect. 8), the i^raiit of any pension was to contain a proviso for the snspension of the pension during the period in which the pensioner slioukl hold any office of double the anion'/ of the pension, and for the su.spension of one half of the pension whilst ' eld an oHite of e([ual or greater amount than the pen- sion. Construii.j,-, then, the Stat, of 4 and 5, VVm. 4, by the light and aid of the 57 (leo., c. (5.'), it might fairly be considered that the suspension of the p(>nsion during the subs(<(|ueiit "tenure of office — not its total and entire extinction upon the appointment to office, — was intended by the Stat, of 4 and 5, \Vm. 4. 1 do not venture, therefore, to claim for my argument any nssistance, to bo derived from the alledged jmictico and usage of the Eng- lish Treasury under the existing Tension Act, though I humbly conceive that, wholly irrespective of that, the fair and necessary construction of our Statute leads to the same conclusion. If this opinion should be erroneous, I hope, at least, to be pardoned for supposing that the Legislature here has not been hss generous — less just, let me rather say — when providing for these pv.ldic servants whom it has deprived of their situation, than the Im- peri-.i Parliament has been in this particular. It remains that 1 should notice a further objection to the claim which was taken by the learned counsel who opposed it. And first, the 34th chapter of the lie vised Statutes of 1855 was referred to, in which provision was made for the ])avment of pensions theretofore granted, including those of tlie three other Judges under this Act of 4 Vict., but omitting altogetlier to provide for, or even to notice, tiiat of the present claimant. At the time of passing these Revised Statutes, Mr. Justice Haliburton still occupied a seat on tlie Rcncli of the Supreme Court, and was in the en- joyment of a salary greater in value than his pension, which, therefore, at that time, ceased to be payable. The Legislature, it may be, did not advert to the possibility of his ceasing to hold this situation, and may, on that ac- count, have maiie no niention of it, and no provision for its future payment. But if the pension granted by the 4 Vict, was still a subsisting right, liable to bo reclaimcHl when ho ceased to hold tlie new appointment, such an omission in the Revised Statutes could certainly not deprive him of it. The 170 chap, of the same Revised Statutes repeals, it is true, the Stat, of 4 Vic. and would, therefore, put an end to all the pensions which were not provided for by the preceding 34 chap. But the Legislature, as if fore- seeing that, in the'extensive repeals of Statutes, and the substitution of a new and condensed code in their place, which this volume of the Revised Statutes h.-ul made, some omissions had taken place and some things over- looked, very properly and justlv provided by the 3 Sect, of chap. 170, that the repeal of those Statutes, wh'ich was about to be made, " should not affect any Act don(^ or anv right accruing, accrued or established before such re- peiil," and this as fully reserved and protected the claim of Mr. Halibur- ton to his pension, if it existed, leaving it just as it stood before, as if it had l>een especially, and by name, included in this clause of the Repeal- ing Statute. 'a similar remark may be apjdied to the second scries of Revised Sta- tutes of 1858, which, by' its preliminarv act, repealed all Statutes then in force, but, by the 4th Sect., reserved all right, accruing or accrued, under any of the Statutes so repealed. This left the rights of all parties just as they were under the 3rd Sect, of the 170 chap, of the Revised Statutes of 185'l, and brings us back to the original question with which we set out. After the fullest consideration of the whole case, I have thus, according to the best of my imperfect judgment, arrived at the conclusion, that Mr. Hali- burton is entitled to the pension which ho claims. When this matter, on a former occasion, was brought before the Court, on a rule for a mandamus to the Receiver Cieneral, 1 declined, myself, to express any opinion upon the right of Mr. Haliburton to the pension. A preliminary objection had been taken to the writ of mandamus being granted in such a case, and Ave all held that it would not lie. I thought, therefore, that it would be useless, and scarcely proper, to determine the main que "on when our Judgiiient could not possibly be enforced, and against wl the Governmci! ; if they de- 18 MR. HALIHURTONS PKN'SION. sirod it, couia not nppeal. That .lUru-ulty will no Uv-ov st.n.l in tl o ^^ny and a-iWin-. as, 1 an. «l.l.' t.. say. 1 now do, witl. tlK- opinion Nvhn-l. tl.o lato ('l,ior.lnslic;>.anan.v l.rotlu.rs Do.M ami DosHarrcs then pronounml, I feel happv to know that this opinion may he reviewed, and, it wrung, set .lappv - right by the highest tribunal of the euuutry. DKCiWiiKR 23rd, 18(>l. OriMON OF MR. JUSTICE DODD. Tliis ease has been twice argued })efore this Court. Upon the first argument it went oiV upon a p- ■liminary point, the Court l)eing unanimous that a man- damus would not lie against the Receiver General. It now comes belore the Court upon the main and unportant point upon a case agreed upon between the Attorney General, on behalf of the Defendant, and the Provincial Goycrtv. ment and the Counsel of the Plaintifl' in the cause, on the part of the llamtitt. The case is reduced to the single question— what is the right ot Mr. Justico Haliburton to the pension which he claims under the Provincial Statute, 4 \ ic, chap 3 It is not necessary 1 should state all the facts of this case, as they are fully set out in the opinions that precede mine Although this case was decid- ed after the lirst argument upon the question as to whether a mandamus would lie acainst the Defendant, as the Receiver General of the Province still our ever to be respected and esteemed late Chief Justice, Sir Rrenton Halliburton, m civiuK his opinion upon a preliminary point also, with that clearness ot judg- ment and legal precision, for which he was always conspicuous, gave it as his decided opinion that the claimant in this case was entitled to his pension ; to that opinion when it was delivered I gave my entire concurrence and the second argument, although ably conducted upon the part of the Provincial Government, has not induced any change upon my part. In considering this case we must look at it upon a broader ground, and apply to it principles that would be equally applicable if Judge Haliburton had accepted any other situa- tion besides that of a Judge of the Supreme Court. In the arguinent much stress was laid upon the livct of his having taken the oflice which he did, and liav- incr done so and become associated with his brother Judges in the Supreme Court, it could not be supposed that the Legislature intended to give inn any advantage over them, by allowing him to retire upon a pension when ill health prevented him performing the duties of a Judge, which wouh not be the case with his associates, if from the same cause they were compelled to relinquish ottice— the law making no provision as respects pensions lor them, under such circumstances. This is a narrow view of the case, as the Judge under the Act was not conlincd to taking a seat on the Supreme Court Bencli, but the whole ortices of the Province were open to him, and upon the acceptance ot any or either of them of greater value than his pension, then it ceased to be payab e to him I admit that if the Act had confined the forfeiture of the pension to the acceptance of a seat on the Supreme Court Bench, then in that case much of the ar^rument used on the part of the Government would have greater lorce and reason on its side than under the existing state of facts it presents its-li to my mind. In the first place the pension is a life pension, .and for services pre- viously performed by the pensioner, the payment of which to him under the Act grantin-- the pension could cease only upon one of two events : death or the acceptance of an oflice by him of equal or greater value than his pension. The Act evidently while intending to do justice to the Judges of the Inferior Courts for their past service.^, when presiding over those Courts, by granting them suitable life pensions upon tlieir abolition, also had a proper regard to the general interests of the Province, and th.-efore declared upon their acceptance of any office of equal or greater value than the amount of their pension, then and in such case such pension should cease to be ])ayai)ie, and fioiu thenccior- ward should no longer be paid to them upon their so respectively accepting such appointment, place, or office. Judge Haliburton immediately after the MR. IIALimiHTOXH I'KNSIOX, 19 pitHwing of tho Act, ilid iicoopt the oHicu of n Jiulgt; of the Supieiufi Court* witli ft Hillary attnche«l to it of groftter value than Iuh pension, tliereby forfeiting hin pension, hut ut tlie siinii! time promoting tho ijitcrests of the ['rovinee, by u miving to the Province ot several thousand pounds, during the time he held tho necepted ottiee. If the office lind been held by him but lor u day and then he had ceaseil to hold it, from no fault of his, but from the fact of it having been abolishe. Those rules bv which the sages of the law, according to I'lowden, 205, have over been guided in seeking for the interformed the unds. A con- struction (d'tlie Act, acc(»rding to the strict letter of the law. would certainly in this <-ase lead to injustice, if not to contradiction and .•il)surdity,_and como within the meaning of the case 1 have referred t(». The proviso in the Act having reference to tho acceptance of office, should be tree friun doubt and ambiguity, before construing it into an absolute forfeiture of the pen- sion. The language of tho Act I admit is strong, but looking at the whole Act and thereby arriving at tho intention of the Legislature, 1 cannot other- wise conclude than that tho int<>ntion was to create a temporary suspension of tho pension upon tho acce])tance of office, and not an absolute one — that the acceptance of office ni'.'st be taken in connection with tho continuance in office, and that when such continuance ceased then tho pension revives. If an office had been accepted by Judge Haliburton, d(>pending upon fees, and those fluctuating, and upon 'his lirst taking such an office the foes had amounted to a sum eipial in value to his pension, but immediately after- wards l»ad been reduced below that sum, then tho princii)le contended for of the absoluto forfeiture Mould apply, and the Judge compelled to perform fn MR. TIAT-inrUTONft I'KXSIOX. aUmv • - It mnv l;'' '-nn.H tl ♦!<• ^i in«r|.r..tM»io„. N. ! tl ink tli.« At under con.suunuiun .»Trvimr out th' Mitorif on ot tin' Lcj^is- consoiinnt with ju^tur ;u(^i in ^.-iToci ^tryinK oui in '"^ • ' ,l..„iiviti(.n of r." kW, in." «-J «r *,. abs<.lute inrt.ituro. Th. Art t«k. .HIut oa.»- ot nv .inioM »M« Tr«.l without loavintr nc^riou. .louhtH m-on i M' .nnnl .« tl e i UM, ion of tb.' Uui.: 'M.ro. a.ul thcnf.ro we are m.^titicl u. .VHort- .0 a those aid. thuo: the prUM-ipU.. of h»w .r.-o^MU/,e, or tho purpose ot niteltaininK that intenn.-r, One ofthe o. cn.s <.i , he Art r^i;;;''^;::;; ,^ its titU', was to diniini>»h ihe < .|y nihture ot tho juduiarN tin- t '"•^"^«^• ana the appointment of Mr. Juiu .' Jlalilu.rton t.. a Heat ou the IJeneh .. i^^^^lonrt, has larK^ly tended to that ol.Jeet a., hv hi. 'UM-;-; "-.if nn.l uerfonnin- the duties* <«f the ortiee for tittee.. vear-s h.^ saved the i..- vineM ri r '^su.a .>f .i'4.-,(H). and onlv wlu-n ill health prevented nu. tron. fur 1 er diselmrL-ins; those duties ho resigned the ottiee. and now dam.s the ieirenut S^^ »'V the A.t for the residue of his hte. In u.v in . te^Uention of the Le^^islature wa^ that lus hte pension w«« en Iv cm e durin.' the holding' of an ot«.-e of j^reafr value than the pension, an I that eonslnieth.n ..f the Art hein- consonant to reason and p.ue and reason, and there oie .annot bring my mind to the eo.ulusion that .t would be 'Y;;';'-^ ;;!''• / have already said I agreed in tlie opinion delivered by he late t h et Ju.- icu^n whieh he l.asT-iled most of the authorities apphe.ble o the ease and to that opinion I now refer f..r those authorities whieh have laigelv inrtueneed my judgment in the oi)inion I now give. The a.lditional ease of ;)oe vs. ^ ates and oth.-rs. o B. \ Aid. o44 I shortly refer to for the purpose of showing how a provisy is treated «u» used ^>r the purpose of defeating an estate vested ''^/'^i;;!;';'',^;";'; ,;^ will. It is true the ease aris, . upon the e.mstruetion of a nmII. but 1 kn..NN of no distim-tion in the eonstruetion of a will from the euustruetnm o an Act of Parliament, where it is necessary to look to the intention of the la v- Kiver or th.' testator for the ].urpose of carrying ont that intention. I he marginal note in the ca..e r.-fernsl to is as follows -. ••Devise o 'v ;■'.«..•;:;! ' hou.sl-, &e., to trustees u,.on tr-ist until 1, Luscombe Manning, should attain the a.'e of 21 years, and thei, ■' him fur life, he taking and using the testa- tor's surname 'of [Aisn.mbe in,- : 4 ■ Mils own surname, with ""itations over to his tirst and other SOI .. ; .l-ict . itlement, they severally bikmg and using tho testator's surn-UHe ;• .t. • of their own I ho will then con- tained a proviso that when ary ->; v e ..remises U:< rebv d.-yise,l shouh vi^t in anv person not bearing the surna:ae of Luscombe, that person should, as .,y,n n- I"' "honbl i... in i.ossession of the estate, take upon himself the namo of Luscoml..e, and use th'e same as and for and instead of hi.s own surnan.e, and should, within three years then next after, procure his own name to bo MR. TTAT.TRTTRTOX'S PKXSTOX. 21 nUcrt'il til tlic ti'.Ht!iti>r'.s Huniariu' of LuH(;(mil)c, liy Artnf i'Hrlinment o >' tue otln'r ctVcctuiil wftv for timt p»riMw«>; niid in cimo of fuilurc in tlins luivinu; th(i Hurminu* of liUsconilh', «.Sc<'., tlicii tlif cMtatf ilcvisnl for tin* bciicrit of Huch pcrMoii HO iu'j?l('<*tin^ to ,t;ot «urh Art of I'lirliaiiKMit or othrr autlioritv, nli.Mild cenHo and beconio void, a» if no »u<'h uj^o or ostato had liwn tlioreby dcviMi'd, and the samo .should, iniiui'diiitfly upon the «'xpiration of th«' tlin-o years, j^o over and \ci*{ next in ri-niaindcr <'f ri'\(d, took upon himsrlf, used and bore tin- nanto uf IiU.scondK>, and no other; hut no Act of I'arl inient had ever been ohtaitH'd to authorize him to ehan^'e hi.s name, nor was the King's liccii?*'" for that nurpo.se id)tained, M'ithin three years after he so entered into possession : held that, inasuuicli n.s h(* bore tlie surname of Luscombo at lie time v\i, n the estate came to him, he liant or other autiiority. Alibott, ('. J., i i deliverinj,' the judg- ment of the Court, after argunuMit, «aid in the coiir.'^e of his judgment: " VVe are to consider this is a proviso introduceil to defeat an estate alrea defeat the previous grant for any period beyond the time the otKce of ecpial or greater value was held in' the pensioners, then they should have used such language as the Chief Justice refers to. and not leave it in doubt and uncertainly as to what their intention was ; and not having done so, then the principle eunciated by Abbott, C. Justice, applies, and the proviso in the Act only i perated during the tinu? Jiulge llaliburton held an othce of e(|ual or greater value than his pension, and when he ceased to hold that oHice then his pension revived. Su, li is tin* view I have taken of this case, and this view has heen strengthened and continued by the elaborate opinion 1 have just heard delivered by my brother JJliss. OPINION OF MR. JUSTICE DESBARRES. 'h: Haliburton. This cfiso turn.s on the construction of the provi.so in the 8th section of the Act of 4 Vict., cluip. .'5, and tlio (jncstion i.«, wlietiicr Jiulgo IlaUhurton having, on the jiassagc of that Act, accf|)toil the utlicc <>{ ;i Jud^'e of tliis (^)l^•t, and alter di^charijing itn dutie.'j f'lr a nnniliiT of year.'!, resign. 'd it, i.s now entitled to receive from the Provincial Trea- tiury the j)en«ion gi'tinted to liini by tli'- 7th section of that Act, from the time of sm'h resigna^'on ? We are called iqion to ilecide whether the acceptance of this office operated n.s a BUBpension only of tlie pi^nnion during actnal enjoyment ot the office, or a.^ an abso- lute extinguishment of liie pcri.sion, a» contended for on the part of the Government. Taking the wovda of the |)rovi.s<> in their strict literal sense, tlie construction put upon them by the (iovernment would seem to tic the right construction, but as that would be inconsistent with the positive enai'tmont of the Tth section of the Act granting a life p(>nsion, the fpiestion naturally arises wlietlier th. Legislaau'c really intended them to be so read ami unujust,co or ■ ' --^ > ^^1 ^ j!^,^ ;,, ,,,„,,i, to ingthonu .Nowtho mtcn^o - A^^,^ ^^n^Stion ol'tho law hy r!:ducing i^.. havp .en in the hr^t pla.A. to i. o o ^ eaiahlishing a moro uniiorm prartico number of Courts thou existing n. tlu^ i ^"^ "^^ '"/ , Judiciary. Tho first ohject was therein, and secondly to ;l-'';i;;:':;,,J^^^j;^ S.m o OoinmJn Tlea^ in ^^^ meant to be acoon.,. -^hed .v he ^^^^^J^"^ ^ ,,, .fVeeted by granting ren.ion.s to Judge Hal.l-rton lien r egd^ a d^ u^^^^ ^^^^^ ^^^ ^^^ _^^ .. ^^^ ^^^^ ^^^ the hr.t Ju-t.ees tlK^c^^^^^^^^^ ^^^^.^^^ ,^^^^^ Logi.httnre having huH 8unis than the sal, lus "'.> ,' j, 1- _ ... .. time of life wlien it was well known retire- deprived these geuteineij^o ^eu^t^ ^ £j':::;,l,ired by the,n,.t ... thought right meno trom active -lutits was "^'^'^\' ;» ..^ ,v,.ll it inav bo assumed, w th the view ot giving to r.iake them eligible to other ofhe. as ;; ;/t\ ^'^ ,ie n to eliw't a stiil further diminu- them useful and V^^iaMe ou^^^y^^^^^^^^^^ ^^ ^,,,^ i, ,,,t obiect. tion of the expense ot '^'f^^^l^^^^^^^L^^ them to take ulliee, Init the »th ofthe Act it wasno,^ sjm n^lem^^ any appointment, place or office pcction provided tliat in ine <-V""/^' , ' the uensiou of £300 a vear, that sum T^'Tl^^rbrAai; amSHhlnl^L™^^^ 1-ger be paid." And liere should, from tl..t moment, ^.revc eeye to U aid oi ^ x J ^^ ^^^ ^ ^^,^„„t, time as he might continue o ho .1 an l loy J '■ '^'" , ^^. accepting office shouhl had a perfect right ,1 at all ^-"^^"n'l/^^l. ^^^V'™ii i' o'heliWe tl'.at %o harsh and absolutely forfeit his li''^i\';''r'«"' '^^ ,/.'^"' ;, " '' „ i^. i,u,,osed, particularlv as that unrea.sonable a condition as this was '^\«^ ' ^ ' 'J.J ., "t^.u as I right to tlxke office, usefully employing their tune they ;-.-..ted o t^ ,;^ > ..^f^.t, t,„ ,,u,,,i, service of Government, that for accepting such othce a. ag.c n < » ^ ^-; ^J ^^„,, i,,,ohuely extin- the country their life pensions were '" ";^-[. j" , ^•^,;; ' , ^ ^^onor and sensf. of jus- puished. Such an ^'^^-'■'^''^''i?^^^^^^;^S\,^Ln inlluenced towards a clas,s V >.y which 'tjqT-- t'; J , -^ -«^^^ ^:^X 5 public policy alone, and tor no other t:":: £rt::^.T;:iu a H^i- m--- ^i-'-' "-^--••^- '- "■'^'•■'^^■^ ^'^ ''"""""" tion of the laws and lessen pul>hc expens. accomplishment There wns no necessity, and tl-^e eouW me b«m o don (^ L^^^^ of these ol.jects to subi^ct ^1'^^'' ^""1'^ "^" ' "^i^^ .^ " / ,„i iuaclivitv bv making tho there have becu any intention to ''"J^ "J .1'';-', ° ,, ,' ,^the forfeiture of their bfo pen- - 1--^ -'■'''- -J Si ; M;:r f r H ;Zl' !.ru 1 me to ^.k IVu- and ,Mit some fii.,ns. Impressed ^^ itli this tx ii. i, i ,lus Act than that given to them bv other constru,-tKm on the word '^^ '^ f^'V X,^^ ,,,,. l,e nn-re in accrdance with the learned Cn.wn C)ti,,-ers Buch an ;PP.^^ ^ ^^ .^^^,_^,^,,, ,.,^ xv-luitwouldsee.ntohave KMUtle U .m 'I n^^ . ^^_^ J^^i,,,;^,,! ,,.,. them thrown out of eniplovn.ent under cucu.n^t...^^ i^^^^^ ^l^,, ^^1,,,,, strong claims to legis lUve T- ---.^^.J' > ;^-;;- .i\,:. h,. .Jilioiis, which ought not scoi-e and tenor of the Act, wt < "'"''';,.„,.,. . _ ^,,ol en a langui.g.! not to be misap- th,',-elore to be taken away unless the ^'g^^' ,^ '^;,;^;;^ ,. ,r ::,H,i was ivally meant ,„vhended. showing m the most explicit tems hat a^ q n ^ ^^^ ,^^ ^^^^_^^^ I an absolute torleiture oi^ the pensions Ihec^ ^^;";;: ,^,; ' ^,,,1 i„ the absence of any ,„v such ,u..^tion as is ^'^ ,^J '" '^i,. :, ^^/'J^.f' u.l^ient as to the etlVct to bo -:!^i;Z ?;^';:;:; s;^^:::;;:^ u thf A c b,;.nng „,' mind .,. o,,octs .. wmch . ... ^ \ .,,,,1 th,. iu^l rliuins ,.f tlioso to bo etiecieil by jt. ^ • , i passed, ali'l tin. jii. i i i.u.n i- , i .,, .),,, ■n-riinieiit fiinii.-h rules ' The American cases to winch our f t-:^;'- -;>;,;;;;■;,': t.^: ,; " "I'lJliou. arising for the cunstruction ul Statutes which ^ \V ,,.'". v,,,' and atiect.ng the rights of as they do out of Statutes containing a^ ;^;"; '/j .j^'o .i, ' ,;17, 8. cTs franc^i. im, public officers. In the ca.se of In, ted ^''.'f ^\^., /,'.'.,',; ,,,, Uie am.nint of compeiisa- the question turned on the construction ol a Statute ' ' ^^" -/^ ,^,^^ import .1 in!., tlio . n to be paid to be l^i Per c.-it. on the ^^'l^^'"'' "' ' ^^ ^i"/, t^' ^ a the col'...ctor, Vni-d Stfites and on t'l.e tonnage ot vessoh. Iho ^|^^;' "^^J"^^^^^^^ ■ ,,,,^ „„ ,,hich c'aimed 3 per cent., the sum al owed F--) «. J^^ ^,^ . S^«.l icl until after tlic the bonds were taken by him, ^'"l '''''l^V^r- ^l.' ' t h« was onlv entitled to 2.i per MR. HALIBURTON'S PENSION. 23 l)y tlio Govornment constniotion. .lolinston, J., there .says: "The words of the Acj — 'arising on goodn imported' — altliougli in thcmselve.s indetinito in point of time, wir iH'Ocivo a precise Hignilication in this respoet by supplying tlio word.s 'heretofore ' to give them a p" may bo read as if the word "temporarily" immediately precolcd them, or as if to the words " from thenceforward shall no longer bo paid," the wonls " while ho sh.all continue to hold such ofhce" were added. Either of these interpolations, which under the authority of the pre<'eding cases, and of Wyton vs. Snaith, Ki Q. B. 4'.1G, and Perry vs. Skinner, 2 Ma. & Wils. 470, we are at liberty to make, will give the [iroviso its proper etl'ect, and make it consistent with tho preceding clause granting a lif" pension, which, in that case would not bo payable during .actual enjoyment of an C(piivalent offic(>, and revive on resignation, or when tkc emoluments or salary of the new office became less than the })ension. This modification of the words of tho proviso, while it will do justice to the j)ublic servant, will, it apjiecrs to me, at the same time carry out tho apparent intention of the Legislature by relieving the public Treasury to the full extent that was intended, and ought fairly to be done. Ill forming my opinion of this case, t have assumed that it was clearly the intention of the Legislature to give tho retired Judges pensions for life, as a compensation for 24 MR. HALIBURTON'S PENSIOX. ,,.t service, and lo. of oJHj., sul^ect only to tl.o ^.n poravy ce^^Oion ^f^^^;!^ If payment in the evc^t o^^^^^^^^^^Z^ci T. 't t 4 V>ct. chap. 3^i th a tiew of valuo. Look n. at h^ tU^ .1 ^^ ^^^^^_^ ^^^^ L..i„lntivo intont, and giv.ng a iva- office of a Judge of this Court. m ? i I