Immediately following this Act (by chapter 125), provision was, notwithstanding, made for a distinct Equity Judge, who was to make rules to govern the practice in equity before him, and to hear and determine all matters of equity jurisdiction, and to preside in the Court when business required, and in the absence of the Judges of the Supreme Court from Halifax, to perform all the duties there that might be required of a Judge of the Supreme Court.

There was to be an appeal from his decisions to the Supreme Court, in which he was to sit as one of the Judges of Appeal. He was also to sit in Supreme Court in Banc., and at Chambers, but not to preside at trials or on circuit, except in case of illness of a Judge, or other sufficient cause.

In full Bench, in cases civil or criminal, legal or equitable, the Chief Justice was to preside; the Judge in Equity next to him, and, in case of the Chief Justice's absence, to preside.

6

Two years afterwards, in 1866, by 29 Vic., chap. 11, amending chapters 124 and 125, the above four sections, 1, 2, 3, 7, of chapter 124 were repealed, and the Equity Court and jurisdiction again re-established. Sec. 7 enacts, "That the Supreme Court,' "and 'the Court,' and the 'Judges' or 'Judge,' in such chapter, "except when herein otherwise expressed, or when inconsistent "with the enactments hereof, are confined, in all cases of exclus "ive chancery jurisdiction, to the Court of the Equity Judge, "or the Court or Judge occasionally exercising the equity juris"diction; and in all cases of concurrent jurisdiction, those terms "apply alike to such Court and Judge, and to the Supreme Court "and its Judges; and in all cases purely at Common Law, con"tradistinguished from Chancery jurisdiction, those terms mean "the Supreme Court and its Judges alone: and all suits or other "proceedings for the redemption or the foreclosure of mortgages "under the 24th section, and for specific preformance under the "25th section; and in relation to real estates of infants, under "the sections from the 51st to the 55th, both inclusive, of said "chap. (124); and all proceedings, matters and things relating "to the custody, care, and disposal of persons of unsound mind, "and there estate and effects, under the sections from 2 to 9, both "inclusive, of chap. 152 of the Revd. Statutes; and also, all "proceedings under chap. 131 of the Revd. Statutes, third series,

of 'trusts and trustees,' are under the equity jurisdiction only, "and shall be prosecuted and conducted accordingly; and the

"terms, the Supreme Court,' and the Court,' and the 'Judges' "used in the said sections and chapter, mean the Equity Judge,

or the Equity Court, or the Court or Judge occasionally exer"cising the equity jurisdiction.

"But nothing in either of the said chapters 124 or 125, applies "to or affects chapter 114 of the Revised Statutes, third series, "Of the sale of lands under foreclosure of mortgages,' the pro"ceedings under which may continue to be in the Supreme Court "and before the Judges thereof.

"In case of the illness of the Equity Judge, or in case of his "absence from Halifax, either within the Province on judicial "duty, or for other cause, or abroad, and also in cases requiring "attention in the country or circuit, and when the Equity Judge "does not preside, the duties imposed on him may be exercised "by the other Judges, or any of them as the cases may require." -Sect. 8.

"The Equity Judge has jurisdiction in all cases formerly cog"nizable by the Court of Chancery, and exercises the like powers, "and applies the same principles of equity as justice may require, "which were formerly administered in that Court."-Sect. 9.

Section 6 of chapter 124, which provided, that in the absence of the Judges of the Supreme Court from Halifax, the Equity Judge should perform all the duties of a Judge of the Superme Court, was repealed; and in place of it, it was enacted in section. 3 of said chapter 11, 29 Vic., that the Court of the Equity Judge should be always open, and the other Judges of the "Supreme Court or any of them, in cases where empowered, to "exercise the functions of the Equity Judge, should have the full " powers of the Court."

The right of the Supreme Court to admit of equitable defences, was still retained, section 10 says:

Section 10. "But nevertheless in all actions at law in the Su"preme Court, on the trial or argument of which matters of equi“table jurisdiction arise, that Court has power to investigate and "determine both the matters of law and of equity, or either, as "as may be necessary for the complete adjudication and decision of "the whole matter; and also, all actions at law, to which equitable "defences shall be set up in virtue of the sections of this chapter, "under the head Equitable Defences,' from sect. 43 to sect. 50, "both inclusive, are, and shall continue to be tried, considered, "and adjudicated by the Supreme Court and its Judges in the

66

same manner as regards the said several cases respectively, as "the Supreme Court or the Judges thereof had power to do when "the Act for appointing a Judge in Equity was passed."

"But it shall be lawful for the Supreme Court, or any Judge of that Court, before whom the consideration, trial, or hearing "of any question of equitable jurisdiction, or any such mixed "questions of law or equity may come, if they or he shall deem "it expedient and conducive to the ends of justice to do so, to "order the case, or any subject matter arising thereon, to be trans"ferred to the jurisdiction of the equity Judge, 'to be dealt with "according to the principles of equitable jurisprudence, and the "exigencies of the case."

By an Act passed, chap. 2, 1870, "To improve the Adminis tration of Justice," it is enacted that the Supreme Court should hereafter be composed of a Chief Justice, a Judge in Equity, and five other puisne Judges, and that the Judge in Equity should not be required to attend the Circuits, or sit in Banc. to hear arguments, except on appeals from the Equity Court, when he shall sit with the others; and further, that in case of his continued absence from the Supreme Court sitting in Banc., from illness or other cause, appeals from his decisions may be heard, and judg. ment pronounced as if he were present.

In Ontario the court and judges of common law and chancery, with their principles and practice remain as separate and distinct as they ever were, save that, as in Nova Scotia, there is a provision that a defendant or plaintiff in replevin, in any case may plead or reply the facts, that on equitable grounds would afford relief in equity against the judgment at law if obtained, subject to the opinion and action of the judge, whether the same can or cannot be dealt with by a court of law so as to do justice between the parties.

Thus, in the absence of any knowledge as to what construction may have been put or may yet be put upon the first part of Section 10, 29 Vic., chap. 11, Nova Scotia Act of 1866, it would seem that Nova Scotia in this respect has come back to where Upper Canada had remained, except as to the sale of lands under the foreclosure of mortgages, chap. 114, Revised Statutes 403, and it is thought, that in New Brunswick some material modification of the present system will at an early day have to be adop ted, either by a more complete separation or by a more complete fusion of the courts of common law and equity.

The latter, if judiciously accomplished, would probaly be the most desirable, as those who are compelled to seek redress in litigation, expect to obtain, and ought to obtain justice full and complete, when it is admitted they are entitled to it, without being sent at great expense from law to equity, and from equity to law, to find it.

Fourteenthly. In the Courts of limited jurisdiction the distinction is more nominal than real. Those in Ontario are the Country Courts and the Division Courts, the former having jurisdiction, subject to certain exceptions, over personal actions not exceeding $200 unliquidated damages, and $400 when the damages are liquidated, and by 23 Vic., chap. 43, in actions of ejectment where the annual value of the premises does not exceed $200. The latter being sub-divisions of the country with certain exceptions to personal actions of $40, and money demands of $100.

In New Brunswick they are the Country Courts and the Magistrates' Courts; the former having jurisdiction, subject to certain exceptions similar to those in Ontario, in actions ex contractu to $200, in torts to $100, but no right to try ejectment; the latter, or Magistrates' Courts, in actions ex contractu to $20, torts to $8. The City Court of St. John has an exceptional jurisdiction of its

own

In Nova Scotia there are no Country Courts, but the Magistrates' Courts have jurisdiction for the recovery of debts-one Justice when the dealings do not exceed $20, two Justices when the whole does not exceed $80. The jurisdiction being confined to the country where the debt was contracted, or the defendant resides.

"Court

In both Nova Scotia and New Brunswick there is a of Divorce and Matrimonial Causes," with full powers to dissolve marriages a vinculo matrimonii, to declare the same null and void, and to hear and determine all causes, suits, controversies, matters and questions touching and concerning marriages.

that

In both Provinces the Court is a branch of the Supreme Court and presided over by one of its Judges, specially appointed for purpose in New Brunswick by commission under the Great Seal of the Province, and in Nova Scotia, ex officio by the Judge in Equity for the time being, who is for that purpose termed "the Judge Ordinary." A difficulty has arisen in New Brunswick from the Act constituting this Court, making no provision

for the substitution or appointment of another Judge to act pro hac vice in case of the illness or absence of the Judge so appointed by commission, or his being prevented by other causes from presiding.

In Nova Scotia, the Act passed in 1866 with referenee to this Court, provided that during the illness or temporary absence of the Judge Ordinary, the Governor in Council might appoint the Chief Justice or one of the Judges of the Supreme Court to act as Judge Ordinary, and by an Act passed in 1870, this last power was further extended to meet the case of his being prevented from presiding by any disqualifying cause. If this latter Act does not come within section 91 of the British North America Act, 1867, the difficulty in New Brunswick can be removed by local legislation. This difference, therefore, at present exists between those two Provinces on that subject. In both Provinces, powers are given to the Court to enforce its decreees, and in case of divorce on the ground of adultery, to determine whether the wife's right of dower, or the husband's tenancy by the courtesy shall be divested or not.

In New Brunswick the grounds of divorce, a vinculo, are limited to impotence, adultery, and consanguinity within the degrees prohibited by the 32 Henry VIII., touching marriages and pre-contracts.

In Nova Scotia they are extended to include cruelty and pre

contract.

In New Brunswick there is an express provision that the divorce a vinculo on the ground of adultery, shall not in any way affect the legitimacy of the issue. In Nova Scotia there is no such provision, perhaps not deemed necessary. In both Provinces provisions are made for appeal from the decision of the Judge to the Supreme Court, and in New Brunswick from the Supreme Court to the Privy Council in England.

In Ontario there is no statute constituting a Court of marriage and divorce.

In New Brunswick and Nova Scotia the Supreme Court being the sole Superior Court, there is no Court of appeal from its decisions, except to the Judicial Committee of the Privy Council in England, which, owing to the great expense attending any appellate proceedings therein, is practically of no avail to the great mass of the people in those two Provinces.

In Ontario a Court of Appeal is constituted, composed of the