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From New Bruuswick, nothing but the Acts passed since Confederation; of the laws of the latter Province I had a perfect set of my own, which obviated the difficulty; and of those of Nova Scotia, I obtained the use of the Revised Statutes belonging to the Secretary of State for the Provinces.
Fourthly.—The Statutory Laws of Ontario, irrespective of auy made by the Dominion Parliament, are found in the Consolidated Statutes of Canada, up to 1859; the Statutes passed by the United Parliament of Canada, from 1850 to 1867; the Consolidated Statutes applicable to Upper Canada alone, passed by the United Parliament up to 1859, and similar Statutes passed by the same Parliament from that period to 1867, and the Statutes passed by the Legislature of Ontario since 1867, making an approximate total, in round numbers of 1,600 Acts or chapters; but omitting those subjects that come exclusively within the scope of the Dominion Parliament, and have been legislated upon, and such Acts as were applicable to Quebec alone, about 1,100.
Fifthly.—The Statutory Laws of Nova Scotia will bo found in one volume. The Revised Statutes, 3rd series, up to 1864, and in the Acts of the Local Legislature from that period, passed annually, comprising as above, about 700 Acts or chapters.
Sixthly.—In New Brunswick, the Statutory Law will be found in the 1st and 2nd volumns of the Revised Statutes up to 1854, and in the several Acts of the Local Legislature, annually passed since that period, comprising, excluding as above, and also those in the third volume, which are called private and local Acts, and which have not been at all referred to, about 1,200 Acts or chapters.
Seventhly.—Thus, in order to determine the Legislation on anyparticular point in Ontario, the search extends over a period of eleven years; in Nova Scotia of six years, and in New Brunswick of sixteen years, and for the purpose of determining the entire uniformity or differences between them on matters coming within the jurisdiction of their Local Legislatures, an examination of upwards of 3,000 Acts.
Eighthly.—The laws of Nova Scotia, as found in the Revised Statutes, are the simplest, best arranged and most easily understood. Those in Ontario, from the past position and history of that Province, as a part of old Canada, and the general and separate special local legislation that was necessary, and the changes that have been made by its Legislature since Confederation, are necessarily the most complicated and difficult to arrive at, assuming that information of the law on any subject is sought by one who, from previous knowledge, is not familiar with the legislation affecting that Province. In New Brunswick, the absence of any revision for sixteen years renders the search more intricate than in Nova Scotia, though less than in Ontario.
Ninthly.—The re-enactment in the Provinces of New Brunswick and Nova Scotia of many of the old English Statute? affecting the ordinary relations of life, such, for instance, as the Statute of Frauds, 29 Charles 2, chap. 3, and adaptation of others, with special alterations, suited to the local wants and habite of the country, such, for instance, as with reference to distresses for rent, the recovery of rents by an action for use and occupation, &c., make a knowledge of the remedies within their power, attainable by the people, and by the local magistrates who administer justice in the rural districts.
In Ontario—while as in the other two Provinces—those parts of the 9th Geo. 4, chap. 14, rendering a "written memorandum "necessary to the validity of certain promises and undertakings," which relate to taking a case out of the Statute of Limitations, the ratification of an infant's promise after coming of age, representations as to the character and credit of a third party, being in writing, are specifically re-enacted; and a special reference is made to the Statutes of Frauds, for the purpose of extending the 17th Section, which relates to the sale of goods of the value of £10 and upwards; yet the provisions of the Statute of Frauds, with reference to promises for the debts or defaults of another, or in consideration of marriage, or on the sale of an interest in lands, or as to an agreement not to be performed within a year, &c., &c., do not appear to have been legislated upon, and the law in regard thereto must be sought for under the authority of chap. 9, of the Consolidated Statutes of Upper Canada, "An Act respecting property and civil rights," which declares, "that in all matters of "controversy relative to property and civil rights, resort shall be "had to the Laws of England, as they stood on the 15th October "1792, as the rule of decision." So also with reference to distresses for rent, or actions for use and occupation, &c., &c.
Teuthly.—In some cases the Legislation on particular subjects appears to be more limited in some Provinces than in others, probably from inadvertence, perhaps from the nature of trade. For instance, in Ontario, with reference to Bills of Exchange, there is no provision whatever for the damages, interests, costs or protests on bills drawn on persons in Asia, Africa, Australia, New Zealand, Japan, Java, the Mauritius, Sandwich Islands, Cape of Good Hope; the East Indies with their great marts of trade, Bombay, Calcutta, Madras; or China, or Smyrna, or the other parts of the Eastern Mediterranean, or any places not coming under the designation of Europe, the West Indies, the United States, or other parts of America.
This omission, no doubt accidental, does not exist in the other two Provinces.
Eleventhly.—While New Brunswick and Nova Scotia long preceded Ontario in the adoption of that great legal reform which abolished the objection to witnesses on the ground of incapacity from crime or interest, and allowed parties to be witnesses in there own causes, leaving the question to be as to their credibility not their competency. (In New Brunswick as far back as 1856. In Ontario only iu 1869). Yet, in several respects, the law in Ontario is in advance of New Brunswick, and in some degree of Nova Scotia, such, for instance as relates to imprisonment for debt, to recovery of landed property; to the discouragement of litigation by the difficulties thrown in the way of speculators in flaws in titles; by the powers that the courts and judges have of compelling a reference to arbitration in suits involving long and intricate accounts, the time occupied in the trial of which would operate as a denial of justice to other parties; by the clear and specific manner in which it disposes of the real estate of intestates, and others to which it is not necessary here to allude.
In many of these respects, the provisions of the law in Nova Scotia are equally excellent.
In New Brunswick, the law and its provisions relating to juries, both for its simplicity, its economy, and the finality resulting from the delivery of the verdict by a majority after due time for consideration,—the law relating to absconding debtors in dividing the estate fairly among the Creditors—instead of securing an absolute preference to the party who puts the process of the law in motion—and some of the provisions of the laws both in Nova Scotia and New Brunswick relating to partnerships, executors and trustees, to seamen, to wills, to the property of married women, &c., might judiciously be imported into the law of Ontario.
Twelfthly.—With reference to the Courts, while an Admiralty jurisdiction aDd Court exist iu each of the other Provinces, and under the extended powers given by a late act of the Imperial Parliament, 26 and 27 Vic, chap. 24, is influencing the administration of justice in a vast number of cases of constant occurrence in a trading and maritime community, which were almost without remedy before, and the benefit of which, under that Act, can be indefinitely extended to any of the Provinces,—Ontario with its vast lake trade is entirely without any such tribunal.
Thirteenthly.—In the Supreme Courts of the three Provinces, the jurisdiction is to the same extent; but in the Maritime Provinces, the Court of Chancery has been nominally amalgamated with the Courts of Common Law, and its existence as a distinct tribunal abolished. In New Brunswick its principles and mode of procedure remain as distinct as before the amalgamation with the Courts of Common Law, the change simply being that the Supreme Court has a Common Law side, and an Equity side. The same Judge may sit in Equity to-day and at Common Law to-morrow, and his decision at Common Law of to-day be restrained by his decision in Equity to-morrow.
He has no power, if in the progress of the cause at Common Law, it is found that the party would have a remedy or relief in Equity, to apply the remedy or give the relief, it must be sought for on the Equity side of the Court.
But though equitable defences in actions at Common Law are not provided for as in Ontario and Nova Scotia, yet, by Section 26 of the same Act, it is declared, " That whenever a demurrer "will lie to a Bill for want of equity, the Judge on the argument "may, if the facts warrant, instead of dismissing the Bill, order "the remedy as at Common Law, or he may make such other "order as to proceeding therein on the Common Law side of the "Supreme Court, and for the trial of the same on such terms as "to payments of costs or otherwise, as may appear to him just." "—Sub. chap. 2, 2nd vol. Revd. Stats, page 83.
In Nova Scotia the fusion was more complete. By chap. 123, Revd. Stats, of Nova Scotia, 3rd series, it is enacted that the Supreme Court shall have, within the Province, the same powers as are exercised by the Courts of Queen's Bench, Common Pleas. Chancery and Exchequer in England. By chap. 124, "Of proceedings in Equity," it was enacted—Revd. Stat. 431, Sect. 1— that in that chapter the term " Supreme Court" should " include the Equity Judge and his Courts; the term " the Court," "means "the Court of the Equity Judge, except otherwise expressed or "clearly indicated; and jurisdiction expressed to be transferred "to and to be exercised by the Supreme Court means the jurisdic"tion and powers of the Judge in Equity, alone, or with the associated Judges, and of the Judges of the Supreme Court on "Circuit, and of the Supreme Court Bench on appeals."
"In the illness or absence of the Equity Judge, or in cases "requiring attention in the country, the duties imposed on him "shall be exercised by the other Judges, as the case may require. —Sect. 2.
"The Supreme Court has jurisdiction in all cases formerly "cognizable by the Court of Chancery, and exercises the like "powers and applies the same principles of equity as justice may "require, and as has formerly been administered in that Court. "In all cases in the Supreme Court in which matters of Law and "Equity arise, the Court before which they come for consider"ation, trial, or hearing, shall have power to investigate and de"termine both the matters of Law and Equity, or either, as may "be necessary for the complete adjudication and decision of the "whole matter according to right and justice, and to order such "proceedings as may be expedient and proper; and all writs is"suable out of Chancery now issue out of the Supreme Court.— Sect. 3.
"The plaintiff may unite several causes of action iu the same "writ, whether they be such as have heretofore been denominated "legal or equitable, or both. The causes of action so united "must accrue in the same right, and affect all the parties to the '•' action, and must not require different places of trial."—Sect. 7.
When applicable, the practice of the Supreme Court was to be observed, when not, the practice of the English Court of Chancery, and by Section 10, "In the final decision of cases on equity prin"ciples, the Court shall give judgment according as the very right "of the cause and matter in Law shall appear to them, so as to "afford a complete remedy ' upon equitable principles applicable' "to the case. And in Sect. 43, it is declared lawful for the "plaintiff in replevin or a defendant in any cause in the Supreme Court, iu which, if judgment were obtained, he would be •' entitled to relief against such judgment, on equitable grounds, "to plead the facts which would entitle him to such relief." And the plaintiff may reply an avoidance of those facts on equitable grounds. And in ejectment, an equitable defence may be set up.