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Cornell University Library 
 KEN7935.6.T75 1900 
 
 History of the Court of chancery in Nova 
 
 3 1924 017 737 655 
 
E ^ Cornell University 
 wM Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017737655 
 
HISTORY 
 
 OF THE 
 
 Court of Chancery 
 IN Nova Scotia 
 
 BY 
 
 Hon. Charles J. Townshend, 
 
 One of the Judges of the Supreme Court of Nova Scotia. 
 
 TORONTO : 
 
 THE CARSWELL CO., LIMITED, 
 1900. 
 
(S^d^(^6 
 
HISTORICAL ACCOUNT 
 
 OF THE 
 
 COURTS OF JUDICATURE IN NOVA SCOTIA. 
 
 rn HE object of this paper is to present an outline of the 
 -*- history of the several courts of justice both civil and 
 criminal which have administered the laws of this Province 
 from its earliest settlement to the present day — to trace the 
 origin of their jurisdiction — to follow in historical sequence 
 their growth and development; to mark the various changes 
 and modifications in their constitution and procedure, and 
 to note some of the peculiarities of our judicial system. This 
 information is to be found principally in the archives of the 
 Province, which, owing to the care of the late Dr. Aikins 
 have been preserved and arranged in an accessible form. 
 Too much ci-edit cannot be given to that learned and hon- 
 oured Nova Scotian for the zeal and fidelity with which he 
 performed that useful work. 
 
 I take more pleasure in publicly bearing testimony to his 
 honourable character, and accurate work, because not long 
 since both were violently assailed in a work which largely 
 dealt with his labour in connection with the Provincial 
 Archives. Wo one who knew that venerable and highly 
 esteemed gentleman would for a moment credit such asper- 
 sions, but with the outside world such slanders uncontra- 
 dicted might have some weight. 
 
 In these archives are to be found the Royal Commissions 
 to our early Governors, the Royal Instructions under which 
 they acted, their voluminous correspondence with the Lords 
 
Historical Account of the Courts 
 
 of Trade, at that period in charge of colonial affairs in Eng- 
 land, the Statutes, Orders and Regulations passed before 
 the Legislature was first convened by the Governor and 
 Council in carrying out these instructions. All these must be 
 consulted, and, lastly, the many volumes of statutes enacted 
 by the first and succeeding Legislatures in order to obtain 
 a clear and connected view of the origin and evolution of our 
 Courts of Justice. For these reasons it is not possible to 
 vouch for the absolute accuracy in all details of the account 
 I have ventured to give in these pages. I trust at least 
 material has been brought together which may aid some 
 future student of the subject in pursuing his investigations. 
 Prior to the landing of Cornwallis and his band of im- 
 migrants, the seat of government was the ancient town of 
 Annapolis Eoyal, then garrisoned by British soldiers under 
 Paul Mascarene. The executive government, both civil and 
 military, was administered by him in conjunction with a 
 council composed of officers of the army then on the station. 
 Murdoch in his Epitome of the Laws of Nova Scotia tells 
 us : "From the acquisition of Nova Scotia in 1713 till 1749 
 a kind of civil government existed at Annapolis in the title 
 of Governor held by the commanding officer of a regiment 
 stationed there. He had also a few councillors, such as his 
 major and senior captain to assist him, but his post was a 
 little village, and the French Acadians allowed all their 
 affairs to be managed by their cures, having among them 
 neither magistrates, lawyers, nor any kinfd of civil officers. 
 The English did not attempt colonization here till 1749, 
 when the appointments of Governor, Lieutenant-Governor 
 and Councillors were conferred on the commander of the 
 troops, and principal colonists at Halifax, who erected Courts 
 of Justice, and passed ordinances, and under their rule the 
 colony was managed until 1758 " (a). 
 
 This statement is not quite accurate, perhaps I should 
 say does not fully present the position of matters. On ts- 
 ference to Calnek's History of the County of Annapolis at 
 
 («) Vol. I, p. 59. 
 
of Judicature in Nova Scotia. 
 
 page 69, I find the following : "The year 1721 was marked 
 by the establishment of a Court of Judicature at Annapolis. 
 At a meeting of the Council held oh the 10th day of April 
 it was resolved ' That the Governor and Council do sit as a 
 General Court or Court of Judicature four times a year.' 
 They then appointed the first Tuesdays in February, May, 
 August and November for the sittings of the Court. It like- 
 wise appears that in March, 1727, they issued the first com- 
 mission of peace in this province, by which Adams, Skeene 
 and ShirefE were appointed Justices of the Peace to form a 
 civil court, their judgment to be reported to the Lieutenant- 
 Governor for confirmation." 
 
 The Court so constituted exercised both Civil and Crim- 
 inal jurisdiction, as we find reports of several cases heard 
 and decided by them. One is so curious and interesting 
 that I extract from the same volume an account of the trial 
 and punishment. "It was in this year, also," says the 
 author, "that a Council was held in the house of John 
 Adams to consider a complaint made by Governor Arm- 
 strong against Robert Nichols, his servant, for an assault 
 upon him made at Canso nearly a year before. He was 
 found guilty and sentenced as follows: ' You, Robert 
 Nichols, being found guilty of the crime wherewith thou 
 art charged by the Honourable Lavs^rence Armstrong, Lieu- 
 tenant-Governor and Commander-in-Chief of this His 
 Majesty's province of Nova Scotia, the punishment therefor 
 inflicted on thee is to sit upon a gallows three days, half an 
 hour each day, with a rope about thy neck and a paper on 
 your head whereon shall be wrote in capital letters ' Au- 
 dacious villian,' and afterwards thou are to be whipped at 
 a cart tail from the prison to the uppermost house on the 
 cape and from thence back again to the prison house, re- 
 ceiving each hundred paces five stripes upon your bare back 
 with a cat o' nine tails, and then thou art to be turned over 
 for a soldier." 
 
 In 1733 the same Court tried and decided a suit be- 
 tween Joseph Jennings and William Winnett respecting the 
 ownership of a house and premises. At this trial we have 
 
Historical Account of the Courts 
 
 the first instance of a lawyer practising his profession in the 
 province, by the name of Eoss. In all probability this gen- 
 tleman was the progenitor of the many distinguished law- 
 yers who have adorned our judicial annals. 
 
 In August, 1734, an action for slander was tried in which 
 Mary Davis was plaintiff and Jane Picot, wife of Louis 
 Thibault, was defendant. The decision was in plaintiff's 
 favour, and the unfortunate defendant was sentenced " to he 
 
 ducked on Saturday next, 10th inst. at high water," no 
 
 light punishment in view of the muddy waters of Ann- 
 apolis. At the instance, however, of the plaintiff, this pun- 
 ishment was commuted to publicly asking her pardon at the 
 church door. 
 
 Matthew Henry was convicted before this Court of lar- 
 ceny and sentenced to receive fifty lashes on his bare back 
 and to return the money. 
 
 Among the magistrates and officers appointed to conduct 
 the proceedings of this Court I find the names of several 
 French Acadians, which would indicate that the quarrels 
 and htigation between these people were not exclusively 
 settled by their cures. Early accounts represent them to 
 have been of a very litigious character, and not that sweet 
 peace-loving people so celebrated in modern literature. 
 
 The foregoing is sufficient authority for the statement 
 that Courts of Judicature of some description existed at the 
 date of Cornwallis' arrival in June, 1749. From that 
 time all jurisdiction so exercised must have ceased, and for 
 the foundation of our judicial system we must look to the 
 commission of Cornwallis and tlie acts and ordinances of his 
 Council passed before the first House of Assembly met, 
 1758, and the Royal Instructions conveyed to him and his 
 successors. 
 
 The commission appointing the Hon. Edward Cornwallis, 
 Governor of JSTova Scotia bears date 6th May, 1749 He 
 arrived in Halifax on June 21st following in the sloop of 
 war "Sphinx," and immediately summoned Colonel JI-is- 
 carene from Annapolis with five of his Council to meet at 
 
of Jud%cature in Nova Scotia. 
 
 Halifax for the purpose of constituting the government of 
 the colony. On Friday, July 14th, the new Council were 
 appointed and sworn into office, and a Council was for the 
 first time held on board the transport " Beaufort." Their 
 names were Paul Mascai-ene, John Gorham, Benjamin Green, 
 John Salisbury and Hugh Daudin, and on the 17th July, at 
 another meeting, Wm. Steele was appointed and sworn in 
 on the 27th July, Peregrine Thomas Hopson; on the 28tli 
 July, Robert Ellison and James Frances Mercer were added, 
 and on the 31st July John Horneman and Charles Law- 
 rence. Edward How was also sworn in on the 13th of Au- 
 gust. These were the men in conjunction with Cornwallis 
 who took the first steps in the formation of the judicial sys- 
 tem of our province. 
 
 On the 18th of July the Governor-in-Council made the 
 first appointment of Justices of the Peace for the township 
 of Halifax as follows: John Brewse, Eohert Ewer, John 
 Collier and John Duport. 
 
 Cornwallis' commission conferred very extensive and 
 necessary powers. We are not at present concerned with any 
 except those relating to the administration of justice and the 
 making of laws. That part reads as follows: " And for the 
 better administration of justice and the management of the 
 public affairs of our said province, we hereby give and grant 
 unto you the said Edward Cornwallis full power and au- 
 thority to choosy, nominate, and appoint such fitting and 
 discreet persons as you shall either find there or carry along 
 with you, not exceeding the number of twelve, to be our 
 Council in said province — as also to nominate and appoint 
 under your hand and seal all and such other officers and 
 ministers as you shall judge proper and necessary for our 
 service and the good of the people whom we shall settle in 
 said province until our future will and pleasure shall be 
 known. . . . 
 
 " And likewise that you take the usual oath for the due 
 execution of the office and trust of our Captain General and 
 
Historical Account of the Courts 
 
 Governor-in-Chief of our said Province for the due and im- 
 partial administration of Justice. . . . 
 
 • " And we do give and grant unto yen full power and 
 authority, with the advice and consent of our said Council 
 from time to time, as need shall require, to summon and 
 call general assemblies of the freeholders and planters within 
 your government according to the usage of the rest of our 
 colonies and plantations in America, and we do by these 
 presents give and grant unto you the said Edward Corn- 
 wallis full power and authority, with the advice and counsel 
 of our said council, to erect, constitute and establish such 
 and so many courts of Judicature and public justice within 
 our said province and dominion as you and they shall think 
 fit and necessary for the hearing and determining of causes 
 as well criminal as civil according to law and equity and for 
 the awarding of execution thereupon with all reasonable 
 and necessary power, authorities, fees and privileges be- 
 longing thereunto, as also to appoint and commission fit per- 
 sons in the several parts of your government to administer 
 the oaths mentioned in the aforesaid Act entitled ' An Act 
 for the Security of His Majesty's Person and Government, 
 and the succession of the Crown in the heirs of the late 
 Princess Sophia being Protestants, and for extinguishing the 
 hopes of the pretended Prince of Wales and his open and 
 secret abettors,' as also to tender and administer the afore- 
 said declaration unto such persons belonging to the said 
 Court as shall be obliged to take the same. 
 
 " And we do hereby authorize and empower you to con- 
 stitute and appoint Judges, and in cases requisite, com- 
 missioners of Oyer and Terminer, Justices of the Peace, and 
 other necessary of&cers and ministers in our said Province 
 for the better administration of Justice and putting the law 
 in execution, to administer or cause to be administered imto 
 them such oath or oaths as are usually given for the due 
 execution and performance of offices and places and for the 
 clearing of truth in judicial cases. . . . 
 
of Judicature in Nova Scotia. 
 
 And that you the said Edward Cornwallis, with the ad- 
 vice and consent of our said Council and assembly, or the 
 major part of them respectively, shall have full power and 
 authority to make, constitute and order laws, statutes and 
 ordinances for the public peace, welfare and good government 
 of our said province, and the people and inhabitants thereof, 
 end such others as shall resort thereto, and for the benefit 
 of us, our heirs and successors, which said laws, statutes and 
 ordinances are not to be repugnant, but as near as may be 
 agreeable to the laws and statutes of this country of Great 
 Britain." 
 
 From the language of this commission the full and ex- 
 tensive powers conferred upon the Governor and Council are 
 easily gathered. Such wide and plenary jurisdiction was a 
 necessary incident to the founding of a new colony, which 
 Nova Scotia was, so far as the English settlement was con- 
 cerned. It is further to be borne in mind that, with the 
 exception of the garrison at Annapolis, no English settle- 
 ment then existed, and that the population of other parts of 
 the province consisted of French Acadians and Indians. No 
 division of the province into districts or counties had taken 
 place, and such ordinances and regulations as were made, 
 referred principally to the town of Halifax, although the 
 jurisdiction extended to the whole province. 
 
 The next branch of our enquiry is to ascertain how these 
 powers were exercised. At the first meeting of Council on 
 July 14th, 1749, his Excellency and the Councillors took and 
 subscribed the following oath, which is termed on the record 
 of the Council, " An Oath for the Impartial Administration 
 of Justice " — " I , do swear that as a member of 
 
 the Supreme Court of Jurisdiction, I will always give my 
 judgment impartially, and to the utmost of my skill and 
 knowledge according to justice, right and equity, so help 
 me God." 
 
 Such was the first Court of Judicature in this province, 
 the powers of which were exercised by the Governor-in- 
 Council under the title of the "General Court." Of the 
 
10 Historical Account of the Courts 
 
 gentlemen who composed this Court, some were eminent in 
 the early settlement of the province, but, so far as my en- 
 quiries have gone, I have not found that any of them were 
 trained lawyers except Duport. 
 
 Having assumed the functions of a tribunal of Civil and 
 Criminal Jurisdiction, they were soon called upon to act. 
 The first trial which took place before the Court was that of 
 Peter Cartell for murder. On the 28th August, 1749, at a 
 meeting of the Council, his Excellency read to the Council 
 that article of His Majesty's Instructions relating to the 
 general Court, and proposed that the same be held as soon 
 as possible for the trial of all persons in custody, and par- 
 ticularly Peter Cartell for the murder of Abraham Goodside 
 on the 26th inst. Ordered that the Secretary publish an 
 advertisement that the General Court will assemble on Thurs- 
 day morning at ten o'clock at the Storehouse to try and 
 determine all causes, civil or criminal, that shall be brought 
 before them. 
 
 Ordered that the Provost Marshall be required to sum- 
 mon twelve from each quarter of the town of Halifax to at- 
 tend the General Court as jurymen. 
 
 As this was a trial of some importance and the first one 
 in our annals, I give some further details taken from Mur- 
 doch's History, Volume II., page 156. He says: " One 
 Peter Cartell had killed Abraham Goodside, the boatswain's 
 mate of the ' Beaufort ' by stabbing him, and had also 
 wounded two other men. The Governor-in-Council sat as a 
 General Court to try him. On 31st August, 0. S., a grand 
 jury found a bill against him, a petit jury found him guilty 
 of murder and he was hanged under warrant from the Gov- 
 ernor, 13th September, 1749. There was a tradition that a 
 large tree was used instead of a gallows in the earliest years 
 of Halifax. This unhappy child of the forest stood near 
 the market square." 
 
 Governor Cornwallis in a letter to the Duke of Bedford, 
 dated 11th Sept., 1749, says: "A general Court was held 
 the 31st August in one of the storehouses for the trial of 
 
of Judicature in Nova Scotia. 11 
 
 one Peter Cartell for murder. The Saturday before he had 
 stabbed the boatswain's mate of the ' Beaufort,' who died 
 upon the spot, and woiinded two men that endeavoured to 
 seize him. I enclose an account of the trial, having en- 
 deavoured to keep as near the English custom as possible." 
 Archives, page 587. 
 
 The Lords of Trade in acknowledging this letter, 16th 
 Oct., 1749, say: " Your method of proceeding in the trial of 
 Peter Cartell for murder was very regular and proper, and 
 will have a good effect, as it will convince the settlers of the 
 intention of conforming to the laws and constitution of the 
 mother country in every point/' 
 
 This trial, as stated by Cornwallis, appears to have been 
 conducted in accordance with English law and to have pro- 
 ceeded on the well-known principle that the colonists take 
 with them so much of the common law of England as is suit- 
 able to their condition and circumstances. Up to this date 
 no laws or ordinances appear to have been enacted or made 
 by the Governor and Council. 
 
 I append hereto the indictment in this case, which 
 minutely follows the old form then used in such matters: 
 
 The King 
 
 against 
 Peter Cartelf,. 
 The Town of Halifax in Nova Scotia, to witt, 
 The Jurors for the Lord our King upon their oath do 
 present that Peter Cartell of sd. town of Halifax, settler, not 
 having the fear of God before his eyes, but moved and se- 
 duced by the Instigation of the Devil on the twenty-sixth 
 day of August and in the twenty-third year of the reign of 
 the sd. Lord the King about five of the clock in the after- 
 noon of the same day at Halifax afforsd. with Torce and 
 Arms in and upon one Abraham Goodsides, mariner ia the 
 Peace of God and of the Lord our King then and there 
 being, made an assault and most traytorously, feloniously 
 and voluntarily and of his malice forethought, struck and 
 
12 Historical Account of the Courts 
 
 wounded the said Abraham Goodsides at Halifax afforsd. 
 with a knife the value of twopence, which the said Peter 
 Cartell then and there had and held in his hand and feloni- 
 ously and of his malice forethought gave the sd. Abraham 
 Goodsides one mortal wound with the knife afforsd, and 
 upon the left side under the lays of the Depth of four inches 
 and of the Breadth of one inch, of which said mortal wound 
 the sd. Abraham Goodsides instantly dyed, and so the said 
 jurors and on their oath say that the said Peter Cartell the 
 Day and Year afforsd. the said Abraham Goodsides in man- 
 ner and form afforsd. of forethought malice most traytor- 
 ously, feloniously and voluntarily killed and murdered 
 against the Peace, Crown and Dignity of our Sovereign Lord 
 the King and contrary to the statute in that ease made and 
 provided. In witness whereof the sd. jurors have hereunto 
 sett their hands this thirty-first day of August in the Year 
 of otir Lord one thousand seven hundred and forty-nine. 
 
 Jos. Fairbanks, John Aubony, 
 
 Jn. Clark, William JeflPray, 
 
 John Steinfort, R. Reeves, 
 
 Henry Windell, John Endy, 
 
 L. Hays, G. Davis, 
 
 G. Hicks, Tho. Rust, 
 
 Richd. Catlierwood, Bn. Gerrish, 
 
 Chas. Maxwell, Thos. Lewis, 
 Geo. Nagel. 
 
 From the correctness with which it was drawn and the 
 regularity of the Court proceedings it seems the Court must 
 have been under the guidance of a lawyer. 
 
 On Sept. 6th, 1749, the first civil action came before the 
 Council. Elijah Davis petitioned for satisfaction from 
 Ephriam Cook, Master of the " Baltimore," for damages done 
 to his schooner by said Cook, who cut off the bowsprit when 
 by accident his schooner was foul of his. Cook's, ship. The 
 witnesses on both sides were heard, when from the record it 
 appears the Court were fairly at a loss how to decide from 
 their ignorance of nautical terms. They suggested that the 
 
of Judicature in Nova Scotia. 13 
 
 dispute be referred to two ship masters, who, in event of dis- 
 agreement were to appoint an umpire whose decision was to 
 be final. This was agreed to and an award was made against 
 Cook. As Cooli refused to comply with the decision, the 
 matter was again brought before the Court, who ordered that 
 Cook be summoned immediately to answer for want of re- 
 spect and contempt. Cook attended and alleged that he had 
 no thought of any contempt, but that he could not answer it 
 to his owner if he paid the money without being distrained. 
 Thereupon it was ordered that a warrant be issued. to the 
 Sheriff for execution of the award and order, and further 
 resolved that E. Cook ought to ask pardon of his Excellency 
 for having treated his order disrespectfully, and that he 
 acknowledge his fault in writing. " Till he has so done 
 be he ordered not to set his foot on the shore." 
 
 Following this, on N"ov. 14th, 1749, we have the first 
 action concerning real estate in which Beardsley Glazier 
 claimed that Samuel Shipton had taken possession of lot 
 "No. 25 which had been granted to the complainant, and had 
 built a house on it. Shipton, being summoned, complained 
 that Mr. Brewse, the Engineer who had the laying out of the 
 lots, had given him the choice of lot 25 or No. 3; that he had 
 given up No. 3 to Mr. Crosby. The register being sent for, 
 it appeared that Shipton's name had been erased out of No. 
 3 and Crosby's inserted. This the Coimcil forbade being 
 done, and that the transfer were only to be made by deed. 
 The parties in the meantime settled the dispute by Shipton 
 giving up the lot to Glazier, and Glazier agreeing to give 
 Shipton materials of all kinds equal to those he had put in 
 the house he had built on Glazier's lot. 
 
 At a meeting of Council on the 20th Nov., 1749, comes 
 the sequel. Samuel Shipton now petitions to have lot No. 
 3 on which he had built before he built on No. 25 and given 
 to Crosby, to be restored to him. He asserts that he never 
 entirely abandoned No. 3 to Crosby, but only on condition 
 that he should be established on No. 25. The matter being 
 heard before the Council, Crosby denied the condition, and 
 produced several witnesses in support of his contention that 
 
14) Historical Account of the Courts 
 
 there was no such condition. Shipton being called on for 
 his testimony in support of his case, said the only person 
 present was his wife, and desired that she might be heard, 
 which was agreed to. She was heard and corroborated her 
 husband as to the condition. The following is the Judg- 
 ment of the Court. "It is the unanimous opinion of the 
 Council that Mr. Shipton has produced no sufficient proof 
 of the agreement being conditional. On the contrary, from 
 the evidence examined, the strongest presumption appeared 
 that Mr. Shipton had entirely relinquished the lot No. 3 to 
 Mr. Crosby, and therefore the Council do adjudge the said 
 lot No. 3 to Mr. Crosby." 
 
 I have given these three instances of the exercise of 
 jurisdiction by the General Coiirt in Criminal and Civil mat- 
 ters to show the extent of it, and the methods of procedure 
 adopted, perhaps, in some respects, rather arbitrary and ir- 
 regular, but on the whole justice and equity prevailed, and 
 law and order was maintained in the infant settlement. 
 
 From an entry in the Council Eecords dated Nov. 20th, 
 1749, it is evident that among the settlers there must have 
 been some hard characters. The record says: "The Coun- 
 cil, being informed that there had been for some time several 
 prisoners in jail for crimes alleged against them, resolved to 
 hold a General Court on Tuesday the 28th inst." It" was also 
 resolved that the General Court be held every year, one on 
 the last Tuesday of April, and one on the last Tuesday of 
 October. This was the beginning of regular sessions of the 
 Court, and it is worth noticing that we have retained up to 
 the present day the same periods for the sittings of the Su- 
 preme Court in Halifax. 
 
 On December 27th, 17-49, I find another instance of the 
 sitting of this Court for the trial of crimes: " The Council 
 being informed that the prisoners in jail for killing cattle 
 upon Cornwallis Island had petitioned for their trial, resolved 
 that a General Court be held on Thursday, 4th May." 
 
 Again, at a meeting of Council 27th May, 1750, we find 
 the following record: "His Excellency laid before the 
 
of Judicature %n Nova Scotia. 15 
 
 Council the information he had received from ilajor Law- 
 rence that he captured one Joseph LeBlanc, who was evi- 
 dently the principal instrument of the enemy in those parts, 
 who had confessed the whole. His Excellency acquainted 
 the Council that he had a warrant ready to send to Major 
 Lawrence for the immediate execution of Joseph LeBlanc, 
 but desired to know their opinion, which would probably have 
 the greatest effect, a sudden example of justice, or a fair trial 
 before the General Court with the other prisoners now in 
 custody at Minas. Resolved that Joseph LeBlanc (Labra- 
 dor) and the two men taken in the bay by Hill, Jean Bathreo 
 and Pierre Eembbiro, be brought to their trial before the 
 General Court in the beginning of August next." 
 
 On the 30th July, 1750, Eesolved to hold a General 
 Court for the trial of the French prisoners and the criminal 
 cases, and -that no civil cases be brought before this Court. 
 I have not followed the record to discover the fate of these 
 prisoners, as not especially pertinent to the object of this 
 paper. 
 
 On the 21st August, 1750, the Council were called upon 
 to exercise a different jurisdiction, that is to say to issvie a 
 writ of Prohibition to the Admiralty Court not to try therein 
 a cause between Groves, Master of the sloop " Sally," and 
 one Hurd, a factor of Mr. Thomas Gunter of Boston. Hurd 
 contended that Groves had not fulfilled his contract which 
 was made within the body of a county, and so ought to be 
 tried before the General Court and not in the Admiralty. 
 Counsel being heard for both parties, the Council were 
 unanimously of the opinion that ui^on the face of the libel 
 no reason appears as a sufficient ground for granting a pro- 
 hibition. 
 
 From this it is evident that the Court of Vice-Admiralty 
 must have been constituted very shortly after Cornwallis 
 arrived, but as no record of the fact is to be found in i.he 
 minutes of Council, I assume such jurisdiction was either 
 exercised directly under an Imperial Commission, or that 
 the Governor by virtue of his commission as Vice- Admiral 
 
Ig Historical Account of the Courts 
 
 appointed the Judge as his delegate. I find on reference 
 to the oldest Admiralty Eecord Book now in the archives, 
 that the lion. Ivlward How was the first Judge of the Court 
 of Vice-Admiralty, that Charles Morris was Eegistrar, and 
 William Chapman, Marshall. Benjamin Green was Surrogate 
 Judge appointed by How, and Hinchelwood was one of the 
 Proctors. Subsequently Green became Judge. The first 
 recorded case is one by Michael Henley v. Ephriam Cook, 
 tried October, 5th, 1749, four months after the settlement 
 of Halifax. 
 
 That the Admiralty Court was not idle is shown by an 
 entry of Oct. 11th, 1750, as follows: "Advised that Otis 
 Little, Esq., acting as King's Attorney, be directed to ex- 
 amine the depositions taken relating to the French brig lately 
 brought into this port by His Majesty's ship " Albany," and 
 make report what proceedings relating to the said Brigt. are 
 legal and regular according to the treaties subsisting between 
 the Crowns of Great Britain and France, and British Act 
 of Parliament. On Oct. 15th, 1750, Otis Little makes a 
 report to the Council, and it was directed that the Brigt. be 
 proceeded against in the Court of Vice-Admiralty for breach 
 of the acts of Trade. 
 
 On the 15th May, 1750, we find the Council called upon 
 to act judicially in another capacity, that is to say as a Court 
 of Marriage and Divorce. Lieut. William Williams com- 
 plained that his wife had been guilty of adultery, and prayed 
 that she might be brought to trial, and if his allegations 
 were made good, to grant him a divorce. The qiiestion was 
 put whether the Council could try such cases as properly 
 belonging to the Spiritual Courts. It was declared in the 
 affirmative. The parties with a number of witnesses were 
 heard before the Court and the wife found gtiilty. The 
 divorce was unanimously granted. The Secretary was ordered 
 to have an instrument of divorce drawn up by persons con- 
 versant in the Spiritual Court by which Lieut. Williams shall 
 be at liberty to remarry, but Amy Williams should not have 
 power during the said William's life. The said Amy Wil- 
 liams was further ordered to quit the province within ten 
 
of Judicature in Nova Scotia. 17 
 
 days. The mode in which the Court sitting as a Court of 
 Marriage and Divorce exercised their powers on this occa- 
 sion was suhsequently disapproved of hy the Home authori- 
 ties as not conformable to EngUsh law and practice then 
 prevailing. 
 
 There are numerous other instances of trials before the 
 General Court in all kinds of cases, both criminal and civil, 
 which it would not be useful to notice at any greater length. 
 The foregoing have been given as illustrations of the pro- 
 ceedings in the early judicial annals of the Province to 
 indicate the mode in which the Courts wielded their author- 
 ity and the extent of the jurisdiction they assumed. Those 
 who may be curious on the subject will find many others, 
 and some quite interesting, recorded at length in the early 
 record books of the General Court now preserved in the 
 archives. 
 
 The chief ministerial officer of the Court at this period 
 was styled Provost Marshal, and not High Sheriff as now. 
 He executed by himself and his deputies all processes and 
 orders of the Courts not only in Halifax, but all over the- 
 Province, and continued to do so until an Act of the Legis- 
 lature was passed in 1778, assented to in 1780, abolishing his 
 office and providing for the appointment of sheriffs in each 
 of the counties. From the proceedings of the House of 
 Assembly, I gather that there was great oppression and pos- 
 sibly extortion in the exercise of the office which led to loud 
 complaints. The British authorities, however, listened to 
 the petition of the Provost Marshal Fenton, and would not 
 allow the Act until a pension was provided for him out of 
 the Provincial revenues. Chapter II., Statutes of 1778, in 
 the preamble, explains the reason for the change from Pro- 
 vost Marshal to Sheriffs. 
 
 At the first institution of the Courts the officer now 
 known as Prothonotary and clerk of the Crown was styled 
 the Chief Clerk. I have not ascertained precisely when the 
 change in title was made, possibly after Chief Justice Bel- 
 cher was appointed. The title is peculiar to Nova Scotia, as 
 I do not find among the other English speaking provinces 
 
18 Historical Account of the Courts 
 
 that it has been adopted, and it was no doubt so changed to 
 correspond with similar title given to the Chief Clerks in 
 the Courts of the King's Bench and Common Pleas in Eng- 
 land. A Mr. Thompson enjoyed the emoluments of the 
 office and resided in England. His duties were performed 
 by Mr. Nutting as deputy. On the death of Thompson, Mr. 
 Nutting succeeded to his place, and at that time and until a 
 comparatively modern date all the country Prothonotaries 
 were simply his deputies. 
 
 This was not changed until the year 1853, when an Act 
 was passed by which "the office of Prothonotary of the 
 Supreme Court," and also the office of Clerk of the Crown 
 for the whole province was abolished and the Governor-in- 
 Council was authorized to appoint a Prothonotary and Clerk 
 of the Crown for each county in the province, but reserving 
 a certain proportion of the fees for Mr. Nutting, who held 
 his office under letters patent. This reservation of course 
 ceased at his death, and all the Prothonotaries and Clerks of 
 the Crown are entitled to retain all fees of office. 
 
 From Avhat has already been said, it has been shewn that 
 at the first settlement of the province the Governor and 
 Council were the supreme legal tribunals, and further held 
 both legislative and executive authority. That among their 
 first acts was one to qualify themselves for their functions 
 by taking the appointed oaths of office, and subsequently 
 entering upon their duties by trying such civil and criminal 
 cases as came before them, and further that they conducted 
 their proceedings on the basis of English law and precedent. 
 But, in the nature of things, it was impossible in view of 
 other important business they could continue to transact all 
 the Judicial affairs arising in the Colony. I have already 
 mentioned the names of several persons who were com- 
 missioned as Justices of the Peace. Their authority at that 
 time was similar to that belonging to the office in England, 
 and did not extend, as in later times, to the trial of civil 
 causes or actions for the collection of debts not exceeding a 
 specified sum. It may be well to mention here that Jus- 
 tices' civil jurisdiction was first conferred by Act of the 
 
of Judicature in Nova Scotia. 19 
 
 Legislature 14 & 15 Geo. III. oap. 15, Acts of 1774, and has 
 since been extended largely. 
 
 On the 6th December, 1749, the Council first turned 
 their attention to the subject of laws for the Province and 
 for regulations for the General Court and County or Inferior 
 Courts. Messrs. Green, Salisbury and Davidson were named 
 as a committee to examine the laws of the Plantations and 
 the regulations with regard to them and report. On the 
 13th December they presented the result, which was read 
 before the Council. The record says: "The report being 
 read accordingly, was approved by the Council, nem. con., 
 and ordered to be entered in the Council books immediately 
 after the 9 articles of His Majesty's instructions relating to 
 the Courts of Justice, which, by article 82, are ordered to 
 be made public, and registered in the Council books." 
 
 His Majesty's instructions so ordered to be registered 
 are of considerable length. The following is the report: 
 
 " The Committee are of opinion that the form of Gov • 
 ernment in Virginia, being the nearest to that of Nova 
 Scotia, the regulations there established for the General 
 Court and their County Courts will be the most proper to be 
 observed in the province. The Committee have therefore 
 collected from the laws of Virginia the following regulations 
 with regard to the General Court and the County Courts, 
 and the forms to be observed therein. 
 
 THE GENERAL COURT. 
 
 Article 1st. For the more easie and regular Prosecution 
 and Determination of suits and actions in the General Court, 
 the Committee humbly propose that it be established and 
 declared that all Original Process (either by writ, summons, 
 or other means to bring any person to answer any action, 
 information, bill or plaint in the General Court, and all 
 executions and all attachments awarded by the General 
 Court, subpoenas and all other process whatever belonging 
 to any matter prosecuted in the General Court be issued 
 from the Secretary's office signed by the Clerk of the Court 
 and also be returned unto the same office. 
 
20 Historical Account of the Courts 
 
 2. That no person shall take original process for the 
 trial of any suit in the General Court of less value than ten 
 pounds sterling on penalty of having such suit dismist and 
 paying costs. 
 
 3. That no member of His Majesty's Council of this pro- 
 vince be sued in an Inferior Court, but that all actions against 
 them shall take their risk and be prosecuted before the 
 General Court, and the process be the same as in Virginia. 
 
 4. That all Process whatever returnable to the General 
 Court be executed at least ten days before the day mentioned 
 therein for the Return. 
 
 5. That Criminal causes be tried the first day of the 
 sitting of the General Court, and no writs be returnable that 
 day. 
 
 6. That on the commitment of any person for any capital 
 or criminal offence, the Magistrate making such commitment 
 shall cause all the witnesses of the fact that shall come to 
 his knowledge to enter into Eecognisance of their appear- 
 ance to give evidence viva voce upon the trial of such of- 
 fender, all which Eecognisance to be delivered to the Clerk 
 three days before the Court sits. 
 
 7. That the Clerk of the General Court shall not issue 
 writs, subpoenas or other original Process for more than 
 twelve actions returnable to any one day of the General 
 Court, neither shall he issue such Process returnable to any, 
 unless they shall have theretofore issued Process for twelve 
 suits returnable to every proceeding day of that General 
 Court. 
 
 8. That if upon issuing of a Writ to the Provost Mar- 
 shal for attaching the body of any person to answer to any 
 suit, if the Provost Marshal shall return bail taken for his 
 appearance and such person fail to appear, then judgment 
 shall be given against the Bail, and if the Provost Marshal 
 shall not return good Bail and the Defendant shall fail to 
 appear, then Judgment shall be given against the Provost 
 Marshal. Provided always that the Bail or the Provost 
 Marshal have liberty to make the same Defence that the 
 
of Judicature i n Nova Scotia. 2 1 
 
 Principal defendant might have had. And provided like- 
 wise that upon the motion of the Bail or Provost Marshal, 
 it be a ride of the Court to order an attachment to issue 
 against so much of the estate of the Defendant as shall l)e 
 of value sufficient to satisfy such judgment and all costs 
 and charges. 
 
 9. That in all cases where witnesses are to appear at the 
 General Court, a summons be issued for the same by the 
 Clerk of said Court, especially mentioning the time and place 
 where the witnesses are to appear and the names of the parties 
 to the suit wherein they are to give evidence and at whose 
 request they are summoned. 
 
 10. That a person failing to appear on such summons be 
 fined in five pounds sterling. 
 
 11. That if it appear by certificate from a Justice of the 
 Peace that a Witness is incapable of appearing by reason of 
 age, sickness or other lawful Disability, in this case the Court 
 shall commission one or more persons to take siich Person's 
 affidavit. Provided always that such commission be made 
 known to the other party. 
 
 12. That if any person summoned as a witness upon 
 appearance before the General Court or before persons 
 appointed (as above) to take affidavits, shall refuse to give 
 evidence upon oath, that such person be immediately com- 
 mitted to the Common Goal there to remain without bail or 
 mainprise until willing to give evidence upon oath. 
 
 13. That no writ of any kind be served against any per- 
 son summoned as a witness during his attendance thereupon, 
 or in the time of his going to or returning from such at- 
 tendance. 
 
 14. That Appeals from the County Court be heard tire 
 third day of sitting. 
 
 15. That upon an appeal in any personal action, if the 
 sentence appealed from affirmed in the General Court, then 
 the appellant shall besides the principal sum expressed in 
 the sentence, pay for the use Poor a Pine not exceeding 15 
 per cent, upon the principal sum and costs according as the 
 
22 Historical Account of the Courts 
 
 Court shall think fit, and upon appeals in real actions, in- 
 stead of 15 per cent, where the sentence appealed, from is 
 affirmed, the applicant shall pay the Poor a sum not exceed- 
 ing ten pounds sterling. 
 
 That for the more easie and regular prosecution of all 
 cases in the General Court, and for the more exact entering 
 of the Judgments of the Court and for the preservation of the 
 Eecords thereof, the following Eules be observed: 
 
 Rule 1. That every PlaintifE shall file his Declaration 
 three days before the day whereto the Writ is returnable. 
 If no declaration is filed before that time, but yet be filed 
 before the day of the Eeturn, the Defendant shall of course 
 have one day more than could otherwise have been allowed, 
 and if no Declaration is filed before the day of the return, 
 then the plaintiff shall be nonsuit. 
 
 3. If the plaintiff fails to appear and prosecute the suit 
 he shall be nonsuit. 
 
 3. That the Defendant prepare his Plea in writing to 
 the Declaration of the Plaintiff. 
 
 4. That the Clerk carefully preserve the Declaration, 
 Pleas, and all other Papers, and that they be all filed to- 
 gether in the office. 
 
 5. That in all cases where the title of any estate in Land 
 is determined, the pleadings shall be all in writing and shall 
 be entered at large with the Judgment thereupon in par- 
 ticular Books set apart for that purpose only. 
 
 6. That all proceedings in Pleas of the Crown Criminal 
 cases and matters relating to the Public Eevenues be re- 
 corded in Particular Books set apart for that purpose. 
 
 7. That for the more regular Prosecution of cases Two 
 or more Attorneys be appointed, sworn and their fees regu- 
 lated. 
 
 8. That every person be allowed to speak himself in his 
 own cause, or produce one to speak for him, or desire the 
 Court to name one. 
 
 9. That no person take any fee or gratuity whatever for 
 speaking in any cause. 
 
of Judicature in Nova Scotia. 23 
 
 THE CDUNTY COU]lT. 
 
 The Committee humbly proposes that there be estab- 
 lished a County Court consisting of five or more Justices by 
 Commission from His Excellency under the seal of the Pro- 
 vince any thereof which Justices shall be sufficient to hear 
 and determine all causes which shall belong to such County 
 Court. 
 
 That the Justice of the County Court have full power, 
 authority and jurisdiction to hear and determine all causes 
 ^whatsoever cognizable at Common Law or, except such 
 criminal causes wherein the judgment upon conviction shall 
 1)0 for the Loss of Life or member and except the prosecu- 
 tion of causes to Out-Lawry against any person, and also 
 except all causes of less value than twenty shillings be de- 
 clared cognizable and finally determinable by one Justice 
 of the said County Court. 
 
 That the County Court be held monthly the first Tues- 
 day of every month, and do sit from day to day till all causes 
 that come before them are determined. 
 
 That the first Justice in the Commission be authorised to 
 call special Court when he thinks necessary for the sake of 
 merchants and others from distant places, whose stay might 
 be very prejudicial to their affairs. 
 
 That all original Process and writs of all kinds to bring 
 Persons to answer any suit or action in the County Court, 
 and all executions and attachments awarded by the said 
 Court, shall be issued by the Clerk of the Court, and shall 
 be again returned to the same office whence they were issued. 
 
 That for the more regular granting of appeals from the 
 County Court, it be declared that when any person prays an 
 appeal to the General Court such person before such appeal 
 be granted shall give Bond with good and sufficient security 
 for the prosecuting the same with effect, and to perform the 
 judgment of the General Court and to pay Damages if the 
 judgment of the County Court shall be affirmed, in manner 
 following, to wit, in all personal and mixt actions the dam- 
 ages, fifteen per cent, upon the Principal sum and costs 
 
24 Historical Account of the Courts 
 
 ordered to be paid by the judgment of the Coiinty Court, 
 and in every Relation the damage shall be ten pounds over 
 and above all costs and damages ordered to be paid by the 
 judgment of the County Court. 
 
 That no appeal be granted from County Court to the 
 General Court for any sum less than five pounds sterling. 
 
 That all the Eegulations and Eules of Court be the same 
 in County Court with those formerly mentioned in the 
 General Court. The following rules to respect both the 
 General Court and the County Court. 
 
 That if any difficulty shall arise in explaining any of the 
 above rules and regulations that Recourse be had for ex- 
 planation to the Laws of Virginia, whence most of them 
 are derived, particularly an Act entitled An Act for estab- 
 lishing the General Court, pp. 251 to 260, and an Act en- 
 titled An Act establishing County Courts, p. 332 to p. 338." 
 
 EXTRACT FROM ROYAL INSTRUCTIONS TO PEREGRINE THOMAS 
 HOPSON, CAPTAIN-GENERAL AND GOVERNOR, DATED MAY 
 7th, 1752. 
 
 Manuscript Documents, No. 348. 
 AND WHEREAS for the Peace, Happiness and Security 
 of all His Majesty's Subjects within the said Province, and 
 for the more speedy and easy execution of Justice and Deter- 
 mination of all controversies and differences, it is necessary 
 that Courts of Judicature and publick Justice should be 
 erected, and also a Judge, or Assistant Justice of the Peace, 
 Sheriffs and other officers should be appointed according to 
 the Powers and Directions of His Majesty's Commission 
 and these Instructions; It is therefore His Majesty's Will and 
 Pleasure, that one principal Court of Judicature should be 
 held twice a year or oftener as you shall judge expedient by 
 the Name of the General Court, and to have Jurisdiction of 
 all causes Real and Personal at common law above the value 
 of five pounds, to act as a Court of Chancery, but not with- 
 out appeal to His Majesty when the matter in Question shall 
 exceed three hundred Pound Sterling, as also to try all crimi- 
 nal cases that may come before the said General Court, which 
 
of Judicature in Nova Scotia. 25 
 
 said Court, It is His further Will and Pleasure should consist 
 of the Governor or Commander-in-Chief and the Council of 
 the said Province for the time being, any five whereof to be a 
 quorum. 
 
 AND IT IS HIS MAJESTY'S PURTHER WILL AND 
 PLEASURE, and you are hereby authorized and required to 
 constitute and appoint such and so many inferior courts of 
 Judicature and Justice within the said Province as you by 
 and with the advice and consent of the said Council shall 
 judge most proper, as also Judges, Justices of the Peace, 
 Sheriffs and other Officers and Ministers of Justice; taking 
 care that you do administer or cause to be administered 
 to all and every such Person as are usually given for the 
 due execution of Offices and Places, and the impartial ad- 
 ministration of Justice, and in the choice and nomination 
 of said Judges, Justices, Sheriffs and other Officers; you are 
 always to take care that they be of good life and well affected 
 to His Majesty's Government, and of good Estates and abili- 
 ties and not necessitous Persons. 
 
 AND you are to transmit to His Majesty's Commissioners 
 for Trade and Plantations with all convenient speed a par- 
 ticular account of all establishments of Jurisdictions, Courts, 
 Offices, and Officers, Powers, Authoritys, Fees and Privi' 
 leges granted and settled within the said Province; as likewise 
 an account of all piiblick Charges relating to the said Courts 
 and of such Funds as are settled and appropriated to dis- 
 charge the same; together with exact and authentic copies 
 of all Proceedings in such Causes where appeals shall be 
 made to His Majesty in His Privy Council. 
 
 You shall not displace any of the Judges, Justices, Sheriffs 
 or other Officers or Ministers within the said Province 
 already appointed, without good and sufficient cause so signi- 
 fied unto His Majesty's Commisioners for Trade and Planta- 
 tions; and to prevent arbitrary Removals of the Judges and 
 Justices of the Peace, you are not to express any limitation 
 of time in the Commissions, which you are to grant to Per- 
 sons fit for those Employments, nor shall you execute by 
 yourself or by Deputy any of the said Offices. 
 
26 Historical Account of the Courts 
 
 AXD you are with the advice and consent of the Council 
 to take especial care to regulate all salaries and Fees belong- 
 ing to Places or paid upon Emergencies that they be within 
 the Bounds of Moderation, and that no exactions be made 
 on any occasion whatsoever; as also that Tables of all Fees 
 be publiekly himg up in all Places where such Fees are to be 
 paid, and you are to transmit copies of all such Tables of 
 Fees to His Majesty's Commissioners for Trade and Planta- 
 tions, as aforesaid. 
 
 AND whereas frequent complaints have been made of 
 great Delays and undue Proceedings in the Courts of Justice 
 in several of the Plantations, whereby many of His Majesty's 
 subjects have very much sufEer'd, and it being of the greatest 
 importance to His Majesty's Service and to the Welfare of 
 the Plantations, that Justice be everywhere speedily and 
 duly administered, and that all Disorders, Delays and other 
 undue Practices in the administration thereof be effectually 
 prevented; You are particularly required to take especial 
 care that in all Courts where you are authorized to preside. 
 Justice be impartially administered, and that in all other 
 Courts established within the said Province all Judges and 
 other Persons therein concerned do likewise perform their 
 several Duties without Delay or Partiality. 
 
 YOU are to take care that no Court of Judicature be 
 adjourned but upon good grounds; as also that no Orders 
 of any Court of Judicature be entered or allowed which shall 
 not be first read and approved of by the Magistrates in open 
 Court, which Eule you are in like manner to see observed 
 with Eelation to the Proceedings of the said Council, and 
 that all orders there made be first read and approved in 
 Council before they are enter'd upon the Council Books. 
 
 WHEREAS His Majesty is above all things desirous that 
 all His subjects may enjoy their legal Rights and Properties, 
 you are to take especial care that if any Person be committed 
 for any criminal matters (unless for Treason or Felony plainly 
 and especially express'd in the Warrant of Commitment) he 
 have free Liberty to petition by himself or otherwise for a 
 writ of Habeas Corpus, which upon such application shall be 
 
of Jwdicafiive in Nova Scotia. 27 
 
 granted and served on the Provost Marshal, Gaoler or other 
 Officer having the custody of such Prisoner, or shall be left 
 at the Gaol or Place where such Prisoner is confined, And the 
 said Provost Marshal or other Officer shall within three 
 days after such service (on the Petitioner's paying the Fees 
 and Charges, and giving security that he will not escape by 
 the way) make return of the "Writ and Prisoner before the 
 Judge who granted out the said Writ, and there certify the 
 true cause of the Imprisonment, and the said Judge shall 
 discharge such Prisoner, taking his Eecognizance and Secur- 
 ity for his appearance at the Court where the offence is cog- 
 nizable, and certify the said Writ & Eecognizance into the 
 Court, unless such offences appear to the said Judge not 
 bailable by the laws of England. 
 
 AND in case the said Judge shall refuse to grant a Writ 
 of Habeas Corpus, on view of the copy of commitment, or 
 upon Oath made of such Copy having been denied the 
 Prisoner, or any Person requiring the same in his behalf, 
 or shall delay to discharge the Prisoner, after the granting 
 of such Writ, the said Judge shall incur the Forfeiture of 
 his Place. 
 
 YOU are likewise to declare His Majesty's pleasure that 
 in case the Provost Marshal or other officer shall imprison 
 any person above twelve Hours, except by a mittimus setting 
 forth the Cause thereof, he be removed from his said Office. 
 
 AND upon the application of any Person wrongfully 
 committed the Judge shall issue his Warrant to the Provost 
 Marshal or other Officer to bring the Prisoner before him, 
 who shall be discharged without Bail or paying Fees, and the 
 Provost Marshal or other Officer refusing Obedience to such 
 Warrant shall be thereupon removed; and if the said Judge 
 denies his warrant, he shall likewise incur the Forfeiture of 
 his Place. 
 
 YOU shall give directions that no Prisoner being set at 
 large by an Habeas Corpus be recommitted for the same 
 Offence, but by the Court where he is bound to appear, and if 
 any Judge, Provost Marshal or other Officer contrary here- 
 unto shall re-commit such Person so bail'd or deliver'd, You 
 
28 Historical Account of the Courts 
 
 are to remove him from his Place; and if the Provost ifar- 
 shal or other Oflfieer having the Custody of the Prisoner neg- 
 lects to return the Habeas Corpus or refuses a copy of the 
 Committment within six Hours after Demand made by the 
 Prisoner or any other in his behalf, he shall likewise incur 
 the Forfeiture of his Place. 
 
 YOU are to take care that all Prisoners in cases of Trea- 
 son or Felony have free Liberty to petition in open Court 
 for their Tryals, that they be indicted at the first Court of 
 Oyer and Terminer, unless it appears upon oath that the 
 witnesses against them could not be produced and that they 
 be tryed at the second Court or discharged, and the Judge, 
 upon motion made the last Day of the Sessions in open Court 
 shall discharge the Prisoner accordingly, and upon the re- 
 fusal of the said Judge and Provost Marshal or other Officer 
 to do their respective Dutys herein they shall be removed 
 from their places. 
 
 PEO^nDED always that no Person be discharged out of 
 Prison who stands committed for Debt by any Decree of 
 Chancery or any legal Proceedings of any Court of Eecord. 
 
 AXD for the Preventing of any Exactions that may be 
 made upon Prisoners, you are to declare His JIajestv's 
 Pleasure that no Judge shall receive for himself or Clerks 
 for granting a Writ of Habeas Corpus more than two shillings 
 and sixpence, and the like sum for taking a recoarnizance; 
 and that the Provost ^larghal or other Otficer shall not re- 
 ceive more than five shillings for every committment, one 
 shilling and three pence for the Bond the Prisoner is to sign, 
 one shilling three pence for every copy of a ilittimus and 
 one shilling and three pence for every mile he bringeth back 
 the Prisoner. 
 
 AXD further, you are to cause this His ilajesty's Eoyal 
 Pleasure signified to you by the Xine Articles of Instructions 
 immediately preceding this, to be made publick and regis- 
 tered in the Council Books of the said Province. 
 
 YOU are to take care that no man's Life, ^Member, Free- 
 hold or Goods be taken away or harmed in the said Province 
 
of Jwlie.itlnre in Noiut l^rotlo,. 29 
 
 under your (iovernment, otherwise than by established and 
 known Laws, not repugnant to, bnt as near as may be agree- 
 able to the Laws of this Kingdom, and that no Persons be 
 sent as Prisoners to this Kingdom from the said Province 
 without sufficient Proof of their Crimes, and tliat Proof trans- 
 mitted along with tlie said Prisoners. 
 
 YOU are to take eare that all Writs within the said Pro- 
 vince be issued in Tlis Majesty's name. 
 
 YOU shall take care with the advice and assistance of 
 the Council that proper Prisons be forthAvith erected and put 
 into and kept in such a condition as may sufficiently secure 
 the Prisoners that are or shall be there in (Custody. 
 
 WHEREAS A])peals ought to be made in cases of error 
 from the respective Courts in the said Province unto yoa 
 and the Council tliere in Cenoral Court, and in your absence 
 from the said Province to the Lieutenant-Governor or to the 
 Commander-in-Chief for the time being, and the said Council 
 in civil causes, if either party shall not rest satisfied with the 
 Judgment of you or tlie Commander-in-Chief for the time 
 being and Council as aforesaid, PTis Majesty's Will and Plea- 
 sure is that tliey may then appeal unto His Jlajesty in His 
 Privy Council; Provided the Sum or Value so appealed for 
 unto His Majestv do exceed three hundred Pounds sterling;, 
 and that such Aiipcal be made within fourteen days after 
 Sentence and good security bo given by the Appellant that 
 he will effectually prosecute tlu^ same and answer the con- 
 demnation, as also pay such Cost and Damages as shall bo 
 awarded by His lyiajesty in case the sentence of you or the 
 Commander-in-Chief for the lime being and Council be 
 affirmed; And it is His Majesty's further Will and Pleasure 
 that in all cases where by your instructions you are to admit 
 Appeals to His ]\fajesty in His Privy Council, execution be 
 suspended until the final defermination of such Appeal, un- 
 less good and sufficient Security be given by the Apjiellec 
 to make ami)le Restitution of all that the Apiiellant shall 
 have lost by means of sucli Judgment or Decree in case upon 
 the Delerminaiion of such Appeal such Judgment or Decree 
 should be reversed and Restitution awarded to the Appellant. 
 
30 Historical Account of the Courts 
 
 EXTRACT FROM ADDITIONAL INSTRUCTIONS TO GOVERNOR 
 HOrSON, 18th DECEMBER, 1753. 
 
 Manuscript Document No. 348. 
 
 George E. 
 
 ADDITIONAL INSTRUCTION to our Trusty and 
 Well-beloved Peregrine Thomas Hopgon, Esquire, our Cap- 
 tain-General and Governor-in-Chief in and over Our Pro- 
 vince of Nova Scotia or Acadie in America, or to the 
 Commander-in-Chief of our said province for the time being. 
 Given at Our Court at St. James's the 18th day of December, 
 1753, in the Twenty-seventh year of Our Eeign. 
 
 WHEEEAS it hath been represented unto us, that the 
 Method prescribed by the Instructions heretofore given by 
 
 T^s to the Governors of Our and Plantations in 
 
 America, relative to appeals from the Courts there in Cases 
 of Error, has, by subsequent Hegulations which have been 
 from time to time made by Us in Our Privy Council relative 
 to such Appeals, become defective and improper. For Remedy 
 thereof for the future, IT IS OUR ROYAL WILL ANT) 
 PLEASURE that you or the Commander-in-Chief of Our 
 Province of Nova Scotia for the time being 
 do permit and allow appeals from any of the Courts of Com- 
 mon Law in Our said Province unto you or the Commander- 
 in-Chief and the Council of Our said Province; and you are 
 for that purpose to issue a Writ in the manner which has 
 been usually accustomed, returnable before yourself and the 
 Coimcil of Our said Province who are to proceed to hear and 
 determine such Appeal, wherein such of Our said Court. . . . 
 
 shall be at that time Judges of the Court 
 
 such Appeal shall be so made to you our Captain-General or 
 to the Commander-in-Chief for the time being and to Our 
 said Council as aforesaid, shall not be admitted to vote upon 
 the said Appeal; but they may bo nevertheless be present at 
 the hearing thereof, to give the reasons of the Judgment 
 given by them in the Causes wherein such Appeals ^shall be 
 made; PROVIDED, nevertheless, that in all such Appeals 
 
>/ Jndicithiir in Nora ^'^colia. ;!| 
 
 llu' sum or viiluc appoiiloil for ilo oncihmI tin- siiiu ol' lliivc 
 luimlml [loiuuls stcrlin.u-, in\(l IIimI scnirily Ik- lirsl duly oivcii 
 by the Appi'llaul. lo niiswci' surh Cluirgos as shall hv awanloil, 
 ill case I he llrsI soiiIimicc is allii'iniHl. Ami if ciilu'r [larly 
 shall iu)(, I'l'sl satislk'd wilh Iho jiuli;nuMil of ynii or iho Coiu- 
 uiaiulor-iii-Hiicr I'or (he iinic lioiiii;- and of Our Couucil as 
 aforesaid. Our Will and rioasurc is (hal. such Parly uiay llu-n 
 aiipcal unto I's ii\ Our Triyy ("ouuril. I'l'ovidod llu> sum 
 or valuo so ajipoalcd for unio Us do cxccimI live liuudrcil 
 pcuiuds sU'rliu^-, and (hal such Ap|ical he made \yilUin I'our- 
 teiui (lavs after Senlcuce, and t;-ood securily i;iyen \\y the 
 Atipellauj. that lu> will i-lTcctually [irnsccute the same and 
 answer the coudeu\na(ion, and also pay such Costs and Dam- 
 ai;es as shall he awarded hy I's in case the sculencc of you 
 or (he t.'onuuandcr-iu-("'hiel' for the linio beiuj; and of Our 
 Council he allirmed; I'KON' ll>l<;i). ncyertheU'ss, (hat where 
 (he uiatler in (jnestion relates (o (ho (aking or deinandinu- 
 of Only jiayahU> lo us or lo any l'\'e orOllice, or annual K'cnt, 
 or oilier such liki> iimlter or thing w lu're the rights in I'lduve 
 may he lunind, in all such cases you are (o admit an Ap])eal 
 to I's in Our Priyy I'mincil, altho" the immodiate sum or 
 value appealed I'm' he of less valuo. And it is our further 
 AVill and Pleasure (hal in all Cases where hy your Inslriic- 
 tiims you are (o admit Appeals lo I's in Our Privy C\nn>cil, 
 oxi'ciition he suspended, until (he linal netermiuatiou of such 
 Appeals, unless good and sullicieiit sci'iirity he given hy the 
 Appellee to make ample IJesliliition of all that (lie Appellant 
 sluill have lost hy means of sutdi Judgmont or lleciec, in 
 case, upon the IV'terminaticm of such Appeal, such Oei'iee 
 m- .liidguieiit shimld lie reversed and Hostitulion awarded to 
 the Appellant. 
 
 0. K. 
 
 ft is most in\(ior(ant in many ways (o know (he source 
 of much of our judicial procedure whii'h we (lius (race back 
 to the colony of N'irginia, at (hat (ime under the PM-ilisii 
 crown. The coiicliidiiig regulation, in fad, provides for the 
 Hiiidaiict- of both (ho Cenoral and County Courts, " That 
 
32 Historical Account of the Courts 
 
 if any difficulty shall arise in explaining any of the ahove 
 rules and regulations, that recourse he had for explanation 
 to the Laws of Virginia, whence most of them are derived, 
 particularly an Act entitled An Act for Establishing the 
 General Court, p. 251 to p. 2G0, and an Act entitled An Act 
 Establishing County Courts, p. 332 to p. 338." It is re- 
 markable that in view of the provision respecting the laws 
 of Virginia, so far as I can ascertain, there is no copy of tlie 
 Laws of Virginia containing these regulations to be found 
 either in our Legislative or Law Library. I venture to sug- 
 gest that an effort be made to secure one. 
 
 It should however be mentioned that in the Legislative 
 Library there is to be found a very old copy of what purports to 
 be the laws of Virginia, dated 1704, bound in one volume with 
 the laws of several other English colonies. Although it con- 
 tains some of the regulations adopted by the Govemor-in- 
 Council it evidently does not give all which are to be found 
 recorded in the Council Books. I, therefore, assume that 
 they had been added to, and amended, and that the Com- 
 mittee of Council made their report from the later laws of 
 Virginia, not now in the library. 
 
 We have now before us a concise statement of the estab- 
 lishment of the two Courts of Judicature which took cogni- 
 zance of all business, civil and criminal, with the method of 
 procedure adopted, and which, with some changes, continued 
 in force up to the arrival of Chief Justice Belcher, 15 Oct., 
 1754, some years after the founding of the settlement, that 
 is to say the General Court, and as it was at first styled, the 
 County Court. We know that the Governor and Council 
 formed the General Court, but it is not quite so clear who 
 were first appointed Justices of the County Court, as 1 do 
 not find any specific appointment in the records in the first 
 instance to this office. I conclude, however, with some de- 
 gree of certainty, that the Jurisdiction was assumed by the 
 gentlemen who were made Justices of the Peace at the meet- 
 ing of Council, 10th July, 1749. Their names were John 
 Brewse, Eobert Ewer, John Collier and John Duport. We 
 find some of these gentlemen subseqitently acting in that 
 
of Judicature in Nova Scotia. 3S 
 
 capacity. Of their personal history I can find nothing re- 
 corded except short biographical notes in Aikins' Nova 
 Scotia Archives of John Collier and John Duport. The 
 Hon. John Collier was a retired officer of the army. He 
 came out with the first British settlers in 1749, and was soon 
 after his arrival appointed by Governor Cornwallis a Justice 
 of the Peace for the new settlement. He was also a captain 
 of militia. He was appointed a member of Council 27th 
 January^ 1752. He died at Halifax 1769. 
 
 John Duport was an attorney. He came out with the 
 settlers in June, 1749, and in July following was appointed 
 a Justice of the Peace. In February, 1752, he was made 
 Judge of the Inferior Court of Common Pleas. He per- 
 formed the duties of Secretary of the Council for many 
 years. In 1776 he prepared an edition of the laws of the 
 province, which was printed by Eichard Fletcher, King's 
 printer in Halifax. Mr. Duport was appointed second as- 
 sistant Judge of the Supreme Court of St. John's (P. E. 
 Island), and in 1770 was elevated to be Chief Justice of thai 
 Island. From incidental references in the correspondence 
 of Lord Cornwallis, I think Brewse was an engineer or sur- 
 veyor, as he appears to have been engaged in laying out the 
 divisions of the newly founded town. Otis Little, I have 
 already noted, was the King's attorney, or we should speak 
 of him as the Attorney-General for the Province, who I re- 
 gret to say, was subsequently dismissed for misconduct, and 
 William Nesbitt took his place. On September 29th, 1750, 
 William Xesbitt and Thomas Walker were appointed notaries 
 public. 
 
 The next reference to judicial procedure is found in the 
 Council Eecords, December 20th, 1750, when the Justices 
 memorialized the Governor-in-Council for further regula- 
 tions to be made in regard to the Courts of Justice and 
 matters relating thereto, and on July 14th, 1751, the Council 
 adopted amended and additional rules and regulations for 
 their guidance. It would be unprofitable to give these in 
 detail, or discuss them at any length. It suffices to say that 
 the Courts even then appear from the records to have had 
 
34 Historical Account of the Courts 
 
 plenty of occupation. Among other crimes and charges 
 which they were called upon to adjudicate were those of sell- 
 ing and cutting coins and pistareens; selling liquor without 
 license; for marrying people without lawful authority; for 
 spreading false news; for violating the Sabbath. 
 
 Some of the punishments enumerated somewhat shock 
 our feelings at the present day, although quite in accordance 
 with the laws of England then in force. Several persons 
 were hanged for ordinary thefts. Murderers claimed the 
 benefit of the clergy, and after being branded with a hot 
 iron on the hand were allowed to go free; the pillory for 
 certain offences was then in use; whipping, and that severe, 
 was inflicted for many offences which we regard with a more 
 lenient eye. It is hard to realize that all these modes of 
 punishment were formerly practised in our province. 
 
 One case of some peculiarity was the application of Anne 
 Porter for relief in a case where she had an execution in the 
 County and General Courts against one John Hoar, but could 
 not get the fruits of her Judgment because he had tendered 
 a house in satisfaction. In another James Parport prays for 
 relief against an award which had been made against him. 
 
 I may mention just here, though having no direct relation 
 to my paper, that it appears from the Council records that 
 February 3rd, 1752, the first provision was made for the reg- 
 istration of deeds, the commencement of a system highly 
 beneficial to the province. On May 29, 1752, for some reason 
 unexplained, the title of the County Court was changed, it 
 was afterwards known as the "Inferior Court of Common 
 Pleas," and some of the former Justices were re-appointed. 
 The new appointees were Charles Morris, James Monk, John 
 Duport, Eobert Ewer, Joseph Scott, William Bown, Sebas- 
 tian Zonberluhler, Joseph Gerrish, John Creighton and Ed- 
 ward Crawley to be Justices of the Inferior Court of Com- 
 mon Pleas for the county of Halifax in this province. 
 
 The first record we find after the appointment of this 
 new Court is on March 2nd, 1752, a memorial to the Council 
 asking for further rules and regulations. On March 10th 
 
of Judicature in JSfdva Scotia. 35 
 
 another application respecting amendments of error to be 
 made in copies of writs, and 8th April following forms of 
 capias, summons and attachment, and execution were adopt- 
 ed, all showing that even at that early date in our legal his- 
 tory questions of practice were worrying the judicial mind. 
 
 It is curious to note here that although the Justices were 
 appointed so far back as February, 1753, as " Justices of the 
 Inferior Court of Common Pleas," it was not until May 29th, 
 1752, that the Order in Council was passed making the 
 change of name from the County Court for the county of 
 Halifax to the Inferior Court of Common Pleas for the 
 county of Halifax. 
 
 This completed Cornwallis' work so far as the constitution 
 of the Courts and procedure were concerned, as he shortly 
 afterwards resigned, and Peregrine Thomas Hopson, on 
 August 3rd, 1752, was sworn in Governor, and a new 
 Council appointed as follows: Charles Lawrence, Benjamin 
 Green, John Salisbury, William Steele, John Collier, and 
 George Fotheringham, who by virtiie of their oflfice became 
 of course Judges of the General Court. 
 
 By an entry in the Council Eecords, October 25th, 1752, 
 appears a memorial by one Francis Martin to allow an ap- 
 peal from the decision of the Inferior Court which had been 
 refused. The Council in the exercise of their authority 
 directed that the appeal should be allowed. 
 
 Up to November 13th, 1752, the General Court appear not 
 to have possessed a seal to authenticate process issued, for we 
 find by an Order in Council one is directed to be made. 
 
 In this year, July 9, 1752, proceedings were commenced 
 before the Council against Ephriam Cook, who had made 
 most damaging charges against the integrity of the Justices 
 of the Inferior Court. Mr. Cook was apparently of a very 
 contrary and rebellious disposition, and had before this oc- 
 casioned much trouble to the authorities. In this instance 
 he was summoned to answer the charges made by the Jus- 
 tices, and from the record it appears his slanders were not 
 well founded, but Mr. Cook was not easily frightened, and 
 
36 Historical Account of the Courts 
 
 in the first instance excused himself from appearing to an- 
 swer for his contempt. He was, however, forced to sub- 
 mission ,and made to apologise for his strictures, but he was 
 removed from the commission as a Justice, which he had 
 held till that time. 
 
 But this was not the end of attacks on the Justices of 
 the Court of Common Pleas, for we find, December 29th, 
 1753, their memorial to Council to take under consideration 
 certain aspersions on their characters and conduct as Judges 
 made by no other than David Lloyd, their clerk, as well as 
 a memorial of the merchants and others complaining of par- 
 tiality and irregularity in their proceedings. All parties 
 were summoned before the Council and were heard at great 
 length, in fact not terminating until 1st March, 1753, when 
 the Council publicly announced their decision in favour 
 of the Justices. It is difficult at this day to form any just 
 opinion on the truth of these assaults on the conduct of our 
 first Judges. The Council examined them with great 
 earnestness and acquitted them. But, on the other hand, 
 the Justices were influential men, some of them members 
 of the Council, and all more or less connected with that 
 body. The whole proceedings are recorded at length and 
 form quite an interesting episode, but too long to discuss 
 further here. 
 
 There is one significant record immediately after, on 
 March 5th, 1753, a new commission was issued, including the 
 same Justices and others who were added to their number. 
 
 April 21, 1753, a committee of the Council was appointed 
 to collect and print all the laws and ordinances enacted up 
 to that date, and on September 4th, 1753, further rules of 
 Court were adopted, and the acts of the Court in the past 
 confirmed. 
 
 On the 19th November, 1753, further forms of procedure 
 were adopted, which are addressed to the Provost Marshal or 
 his deputy, and issued either under the title of the "In- 
 ferior Court of Common Pleas, or General Court of Judica- 
 ture holden at Halifax," shewing that the same two Courts 
 
of Judicature in Nova Scotia. 37 
 
 continued to have jurisdiction in all matters, as indeed, they 
 did until October 31st, 1754, when Jonathan Belcher, on 
 that day, presented his commission ii-om King George, ap- 
 pointing him Chief Justice of the Province of Nova Scotia, 
 and was sworn in. He had previously taken his seat at the 
 Council Board, October 14th, and on the same day Lawrence 
 was sworn in as Governor of the Province. I may mention 
 here that at this time the senior member of the Inferior 
 Court of Common Pleas was styled the first Justice, and en- 
 joyed no other title. As soon as Chief Jiistice Belcher as- 
 sumed the duties of his oiKce, the title of the Court was 
 changed, and was afterwards called the Supreme Court, and 
 the General Court consisting of the Governor and Council 
 ceased to exercise further jurisdiction. This appears from 
 the Eecord books of the Court now in the archives. I can 
 find no Act or regulation of the Council bringing about this 
 change, nor conferring this jurisdiction iTpon him, and T, 
 therefore, conclude that his authority was contained in his 
 commission as Chief Jiistice. It is worthy of note as con- 
 firming this view, that in several Acts passed in Coimcil after 
 he arrived, the term " Supreme Court " is first used, showing 
 that some authority recognized by the Council must have 
 been conferred upon him. 
 
 Belcher held two commissions as Chief Justice of this 
 Province, the first from George II., 1st Jidy, 1754, the second 
 from George III., 14th April, 1761, the mandamus for which 
 last was signed by William Pitt, the great Lord Chatham. 
 As they are both of importance in considering the judiciary 
 of the Province, I give them in full. I also append the 
 mandamus for several commissions to other Chief Justices 
 and Attorneys and Solicitors-General. 
 
 MANDAMUS FOR CH. J. BELCHER, FIRST COMMISSION FROM 
 
 GEORGE II. 
 
 George E. 
 
 Trusty and well-beloved we greet you well. Whereas we 
 have taken into our Eoyal Consideration the Integrity and 
 Ability of our Trusty and Well-beloved Jonathan Belcher, 
 
38 Historical Account of the Courts 
 
 Esquire; we have thought fit hereby to require and author- 
 ize you forthwith to cause Letters Patent to pass under our 
 . . . Seal of that our Province of Nova Scotia or Acadia 
 for constituting and appointing the said Jonathan Belcher, 
 Esquire, our Chief Justice of and in our said Province. To 
 have, hold, execute and enjoy the said office unto him the 
 said Jonathan Belcher, for and during our Pleasure, and his 
 Eesidence within our said Province, together with all and 
 singular the Eights, Profits and Emoluments unto the said 
 Place belonging in the most full and ample manner, together 
 with full power and authority to hold the Supreme Courts 
 of Judicature at such Places and Times as the same may and 
 ought to be held within our said Province. And for so doing 
 this shall be your warrant; and so we bid you farewell. 
 
 Given at our Court at Kensington this First day of July, 
 1754, in the twenty-eighth year of our Eeign. 
 By His Majesty's command, 
 
 (Sgd.) T, Robinson. 
 
 M-iNUAJIUS FOU CH. J. BELGHEll, SECOND COMMISSION FIIOM 
 GEORGE III. 
 
 George E. 
 
 Trusty and Well-beloved We greet you well. Whereas 
 we have taken into Our Eoyal Consideration the Loyalty, 
 Integrity and Ability of Our Trusty and Well-beloved Jona- 
 than Belcher, Esquire, We have thought fit hereby to author- 
 ize and require you forthwith to cause Letters Patent to be 
 passed under Our Seal of Our Province of Nova Scotia in 
 America, for constituting and appointing him, the said 
 Jonathan Belcher, Our Chief Justice of and in Our Province 
 of Nova Scotia; To have, hold, exercise and enjoy the said 
 Oflice unto him, the said Jonathan Belcher, for and during 
 our pleasure, and his Eesidence within our said Province, 
 together with all and singular the Eights, Profits, Privileges 
 and Emoluments unto the said Place belonging, in as full 
 and ample manner as he the said Jonathan Belchei:, or any 
 
of Judicature in Nova Scotia. 39 
 
 other person have heretofore held and enjoyed, or of right 
 ought to have held and enjoyed the same, with full Power 
 and Authority to hold the Supreme Courts of Judicature at 
 such Places and Times as the same may and ought to be held 
 within our said Province, and you are to cause to be inserted 
 in the said Letters Patent a Clause for revoking and deter- 
 mining the last Letters Patent whereby the said Jonathan 
 Belcher was constituted Chief Justice of Our said Province 
 of Nova Scotia. And for so doing this shall be your warrant 
 and so we bid you farewell. Given at Our Court at St. 
 James's, the Fourteenth day of April, 1761, in the first year 
 of Our Keign. 
 
 By His Majesty's command, 
 
 (Sffd.) W. Pitt. 
 
 This is a convenient place to draw attention to the fact 
 that the commissions to our early Judges were, as in the case 
 of Chief Justice Belcher, " during pleasure only," that is to 
 say, during the pleasure of the Crown, by whose authority 
 alone they were removable. This condition of affairs was 
 .changed in 1849, when a bill was brought into the House of 
 Assembly by which the Judges were to be appointed " during 
 good conduct," " quamdiu se bene gesserit " in legal phrase- 
 ology, and only removable on the joint address of the two 
 Houses of the Legislature. The reason assigned for this 
 change was to make the Judges quite independent of all in- 
 fluences, whether of the Crown, or from any other source. 
 Strange to say this change was bitterly opposed by so eminent 
 a lawyer and Judge as the late Mr. Justice Johnston, but I 
 rather suspect his opposition was due to another result of 
 the law which henceforth left judicial appointments in the 
 hands of the Provincial Government without reference to the 
 Imperial authorities. This I gather from expressions used 
 in the course of the debate on the subject. My impression 
 is confirmed by the fact that the late Mr. Justice Dodd ap- 
 pears to have been the last Judge of the Supreme Court who 
 was appointed in consequence of a mandamus from the home 
 authorities. He was appointed 17th March, 1849, against 
 
40 Mistoricat Account of the Courts 
 
 the wish of the Provincial Goyemment, composed of Howe, 
 Young and others. The previous Government, of which 
 Judge Dodd was a member, had resigned the February before, 
 and had evidently recommended Dodd for the vacant Judge- 
 ship. Now, although the Act first referred to passed at this 
 session, it is not incorporated in the Acts for the year 1849, 
 and I conclude that the Home Government had not at that 
 time assented to it. This is proved by the fact that the late 
 Mr. Justice DesBarres' commission, dated November 14th, 
 1849, was in exactly the same terms as those of the former 
 Judges, although he was appointed by the Provincial Gov- 
 ernment. 
 
 Another noticeable change was made, that is to say up to 
 the reign of George III. the Judges, both in England and her 
 colonies, on the death of the reigning sovereign required 
 new commissions. This is the reason why Chief Justice 
 Belcher held two commissions. An Act was passed early in 
 the reign of George III., which declared that the office of 
 a Judge should not be vacated on the demise of the sovereign, 
 and, I presume, applied to colonial appointments, thus plac- 
 ing the Judges in a perfectly independent position, the same 
 as occupied at the present day, when they are irremovable 
 except by a vote of the two Houses of Parliament. 
 
 MA.NDAMLS FOlt JUHV FENTON S COMMI.SSION A.S PUUVOST 
 MARSHALL. 
 
 George E. ■ ' , ; ' ! 
 
 Trusty and Well-beloved, We greet you well. Whereas 
 We have taken into Our Royal Consideration the Loyalty, 
 Integrity and Ability of Our Trusty and Well-beloved John 
 Fenton, Esquire, We have thought fit hereby to authorize 
 and require you forthwith to cause Letters Patent to be 
 passed under the Seal of Our Province of Nova Scotia, con- 
 stituting and appointing him the said John Fenton, Provost 
 Marshall of and in Our said Province; To have, hold, exer- 
 cise and enjoy the said Office or Place unto him the said 
 
of Judicature in Nova Scotia, 41 
 
 John Fenton, by himself or his sufficient Deputy or Depu- 
 ties (for whom he shall be answerable) for and during Our 
 pleasure, and his Eesidence within our said Province, to- 
 gether with all and singular the Rights, Salaries, Allowances, 
 Fees, Profits, Privileges and Emoluments thereunto belong- 
 ing or appertaining, in as full and ample manner as any 
 other Person hath heretofore held and enjoyed, or of Right 
 ought to have held and enjoyed the same. And for so doing 
 this shall be your Warrant. And so we bid you farewell. 
 Given at our Court at St. James's the Seventeenth day of 
 March, 1772, in the Twelfth Year of Our Reign. 
 By His Majesty's command, 
 
 (Sgd.) HaLSBO HOUGH. 
 
 MAN'DAMUS Foil JAMES MONK'S COMMISSION AS SOLICITOK- 
 
 GENEKAL. 
 
 George R. 
 
 Trusty and Well-beloved, We greet you well. Whereas 
 We have taken into Our Royal Consideration the Loyalty, 
 Integrity and Ability of Our Trusty and Well-beloved James 
 Monk, Esquire, We have thought fit hereby, to authorize and 
 require you forthwith to cause Letters Patent to be passed 
 under the Seal of Our Province of Nova Scotia, constituting 
 and appointing him the said James Monk, Our Solicitor- 
 General of and in Our said Province; To have, hold, exer- 
 cise and enjoy the said office unto him the said James Monk, 
 during Our Pleasure, together with all and singular the 
 Rights, Fees, Profits, Privileges and Advantages thereunto 
 belonging, or appertaining, in as full and ample manner as 
 any Solicitor-General of Our said Province hath heretofore 
 held and enjoyed, or of Right ought to have hreld and enjoyed 
 the same. And you are to cause to be inserted in the said 
 Letters Patent a Clause or Proviso obliging the said James 
 Monk to actual Residence within our said Province, and to 
 execute the said Office in his own Person, except in case of 
 sickness or incapacity, and with all such other clauses and 
 Provisos as are requisite and necessary in this Behalf. And 
 
42 Historical Account of the Courts 
 
 for so doing this shall be your Warrant. And so we bid you 
 farewell. Given at our Court at St. James's the thirty-first 
 day of July, 1772, in the Twelfth Year of our Keign. 
 By His Majesty's command, 
 
 (Sgd.) Hillsborough. 
 
 MANDAMUS FOK KICHAKD JOHN UNIACKE S COMMISSION AS 
 SOLICITOR-GENERAL. 
 
 George E. 
 
 Trusty and Wellbeloved, We greet you well. Whereas 
 We have taken into Our Eoyal Consideration the Loyalty, 
 Integrity and Ability of Our Trusty and Wellbeloved Eichard 
 John Uniacke, Esquire, We have thought fit hereby to 
 authorize and require you forthwith to cause Letters Patent 
 to be passed under the Seal of our Province of Kova Scotia, 
 constituting and appointing him the said Eichard John 
 Uniacke Our Solicitor-General of and in Our said Province 
 in the room of Eichard Gibbons, Esquire, whom we have 
 appointed our Attorney-General of Our said Province; To 
 have, hold, exercise and enjoy the said OfBce unto him the 
 said Eichard John Uniacke during Our Pleasure, together 
 with all and singular the Eights, Fees, Profits, Privileges 
 and Advantages thereunto belonging or appertaiaing in as 
 full and ample manner as any Solicitor-General of Our said 
 Province hath hereto held and enjoyed, or of Eight ought 
 to have held and enjoyed the same. And you are to cause 
 to be inserted in the said Letters Patent a clause or proviso 
 obliging the said Eichard John Uniacke to actual residence 
 within our said Province, and to execute the said office in his 
 own Person, except in case of sickness or incapacity, and with 
 all such other clauses and provisos as are requisite and neces- 
 sary in this behalf. And for so doing this shall be you War- 
 rant. And so we bid you farewell. Given at our Court at 
 St. James's the Twenty-eighth day of February, 1783, in the 
 Twenty-second year of Our Eeign. 
 
 By His Majesty's Command. 
 
 (Sgd.) W. Ellis. 
 
of Judicature in Nova Scotia 43 
 
 MANDAMUS FOR WILLIAM THOMSON'S COMMISSION AS 
 PROTHONOTARY. 
 
 George E. 
 
 Eight Trusty and Wellbeloved, "We greet you well. 
 Whereas we have taken into Our Eoyal Consideration the 
 Loyalty, Integrity and Ability of Our Trusty and Well- 
 beloved William Thomson, Esqr. We have thought fit here- 
 by to authorize and require you forthwith to cause Letters 
 Patent to be passed under Our Seal of that Our Province of 
 Nova Scotia, constituting and appointing him the said Wil- 
 liam Thomson, Prothonotary and Clerk of the Crown in our 
 said Province, to have, hold, exercise and enjoy the said 
 office during our Pleasure and his Eesidence within Our said 
 Province with all and singular the Eights, Salaries, Pees, 
 Profits, Privileges and Emoluments thereunto belonring or 
 appertaining, and for so doing this shall be your Warrant. 
 And so we bid you farewell. Given at Our Court at St. 
 James's the Sixth day of October, 1786, in the Twenty-sixth 
 year of Our Eeign. 
 
 By His Majesty's Command. 
 
 (Sgd.) Sydney. 
 
 As this concludes that part of my subject relating to the 
 establishment of the early common law courts in this Pro- 
 vince, culminating in the constitution of the Supreme Court 
 with Chief Justice Belcher at its head, it is a fitting place 
 to make some reference to that eminent Judge. In the 
 archives Mr. Aikins in a note gives the following brief bio- 
 graphical sketch. 
 
 "Jonathan Belcher was a second son of Governor Bel- 
 cher of Massachusetts. He graduated at Harvard, Cam- 
 bridge, and was educated for the profession of the law. He 
 afterwards went to England to complete his studies, when 
 he became a member of the Society of the Middle Temple. 
 He received the appointment of Chief Justice of Nova Scotia 
 in 175-±. Soon after assuming that office, he urged upon 
 the Government the necessity of calling a representative 
 assembly, being of opinion that the Governor and Council 
 
44 Historical Account of the Courts 
 
 under the Governor's commission and instructions did not 
 possess the power of levying taxes. The earliest enactments 
 of the Legislature which form the groundwork of the Statute 
 Law of Nova Scotia were prepared by him. Chief Justice 
 Belcher was President of Council, and administered the 
 government of the Province on the death of Governor Law- 
 rence in October, 1760. He died in Halifax, 1776, aged 65, 
 leaving a son and daughter. The House of Assembly allowed 
 a pension to his daughter until her marriage. His son, the 
 Plon. Andrew Belcher, was for several years a member of the 
 Council. He was father of Vice-Admiral Sir Edward Bel- 
 cher, distinguished for his nautical surveys on the Coast of 
 Africa and the Arctic seas. Sir Edward was born at Halifax 
 and educated at the old Grammar School on Barriiigton 
 Street under the Eev. George Wright." 
 
 It may be interesting to add the following description 
 from Murdoch's History of the inaugural proceedings on 
 Chief Justice Belcher's first presiding in the Court: " On 
 Monday, 14th October, Jonathan Belcher, the newly ap- 
 pointed Chief Justice of the Province, was (by H. M. Man- 
 damus) sworn in as a member of the Council, after which 
 the Council adjourned to the Court House, where after pro- 
 clamation made for silence, the King's commission appoint- 
 ing Charles Lawrence Lieutenant-Governor was read in pub- 
 lic. He was sworn in and took the chair. The Council ad- 
 dressed him in congratulation, and he made a suitable reply. 
 A commission by letters patent for the Chief Justice was 
 prepared, and on the 21st October (Monday) it was read in 
 Council, and the Chief Justice took the usual oaths of office. 
 On the first day of Michaelmas term the Chief Justice walked 
 in procession from the Governor's house to the Pontac — a 
 tavern. He was accompanied by the Lt.-Governor Law- 
 rence, the members of the Council, and the gentlemen of 
 the bar in their robes. They were preceded by the Provost 
 Marshal, the Judges' tipstaif and the civil officers. At the 
 long room of the Pontac an elegant breakfast was provided. 
 The Chief Justice in his scarlet robe was there received and 
 complimented in the ' politest manner ' by a great number 
 
»/ Judicature in Nova Scotia. 45 
 
 of gentlemen and ladies and officers of the army. Breakfast 
 being over, they proceeded with the commission carried be- 
 fore them to the church (St. Paul's), where the Eev. Mr. 
 Breynton preached from this text: " I am one of these that are 
 peaceable and faithful in Israel." A suitable anthem was 
 sung. After this they proceeded to the Court House, hand- 
 somely fitted up for the occasion. The Chief Justice took 
 his seat under a canopy with the Lieutenant-Governor on his 
 right hand. The Clerk of the Crown then presented the 
 commission to Mr. Belcher, which he returned. Proclama- 
 tion for silence was made; Belcher gave some directions for 
 the conduct of practitioners; the grand jurymen were sworn 
 and the Chief Justice delivered his charge to them. After 
 this the Court adjourned, and his Honour the Chief Justice, 
 accompanied and attended as before, went back to the Gov- 
 ernor's house. Such was the first opening of the Supreme 
 Court of Nova Scotia." 
 
 This very graphic description recalls to us the dignity 
 and solemnity with which our ancestors surrounded the Courts 
 of Justice, still preserved in England, and it is not clear that 
 we in this country have gained anything in throwing aside 
 many of the outward forms and ceremonies, so impressive 
 on such occasions. When the Judges of His Majesty's Su- 
 preme Court ceased to wear the scarlet robe, and Judges and 
 barristers alike cast aside the wig, I have not been able to 
 ascertain. That they continued to do so at the end of the 
 last century is evident from the portraits of Chief Justice 
 Strange and Chief Justice Blowers, both of which formerly 
 adorned the Legislative Council Chamber, and now the por- 
 trait of the latter, I regret to say, is hidden away in one of 
 the ante rooms of the House of Assembly. Since writing 
 this, in conversation with Senator Dickey, the senior member 
 of the Bar in this Province, I learn that when he first com- 
 menced practice in 1834 the Judges then wore their wigs in 
 Court, but not the barristers. 
 
 In these observations I have, to some extent, wandered 
 from my text. Having traced step by step the erection and 
 constitution of the General, County and Inferior Courts, I 
 
46 Historical Account of the Courts 
 
 must not omit to state that Comwallis and his council at 
 the same time instituted the Court of General Sessions, stated 
 by Haliburton to have been similar in its nature, and con- 
 formable in its practice to Courts of the same name in 
 England. 
 
 This Court was composed of the Justices of the County 
 Court, and afterwards of the Inferior Court of Common 
 Pleas, associated with all Justices of the Peace. It has not 
 been made very clear to me exactly to what extent they ex- 
 ercised jurisdiction in civil and criminal matters, and it seems 
 probable that their functions were chiefly discharged in pro- 
 viding local regulations for the town, although doubtless 
 some matters of a judicial nature were heard before them. 
 
 Haliburton in his brief account of our Courts, Vol. I., 
 p. 164, says, " That in the year 1753, in consequence of many 
 difBculties having arisen from the practice of the County 
 Court, it was abolished, and a Court of Common Pleas erected 
 in its place upon the plan of the Inferior Court of Common 
 Pleas in New England. This Court sat four times a year, 
 and the Judges were selected from among those who had 
 presided in the County Court. Similar inconveniences 
 having arisen from the peculiar construction of the General 
 Court, His Majesty in the year 1754 appointed Jonathan 
 Belcher, Esq., Chief Justice of Nova Scotia, and a new judi- 
 ciary was erected in the place of the General Court, styled. 
 The Supreme Court, Court of Assize, and General Jail De- 
 livery, in which the Chief Justice was sole Judge, but the 
 new Court assumed no other powers or jurisdiction than what 
 had till then been exercised by the General Court." 
 
 In a note he further informs us, "The practice in the 
 Supreme and Inferior Courts continued the same until the 
 convention of the House of Assembly in 1758, when the prac- 
 tice of the Common Pleas was changed by a temporary Act 
 of Legislation and a new mode prescribed compounded partly 
 from the practice of Massachusetts, and partly from the prac- 
 tice of England. Upon the expulsion of the neutral French, 
 and the introduction of the new inhabitants as settlers, new 
 
of ■ Judicature in If ova Scotia. 47 
 
 counties were erected, and the Courts of Common Pleas be- 
 came multiplied. Thus constituted, the Courts continued and 
 practiced until 1764, when a change took place in the Su- 
 preme Court. Upon an address of the House, Governor Wil- 
 mot added two assistant judges, and appointed two members 
 of Council to fill these situations. The powers granted to 
 the assistant Judges by these commissions (which were 
 drafted by the Chief Justice) were so qualified and limited 
 that the intent of the Assembly was altogether frustrated — 
 not having power to try a case but in conjunction with the 
 Chief Justice, or even to open or adjourn the Court without 
 his presence and concurrence." 
 
 With the arrival of Chief Justice Belcher commenced a 
 new era in our Judicial annals. Hitherto no one pretending 
 to the necessary qualifications of a Judge had presided in 
 the Courts. Belcher was a man of good ability, good educa- 
 tion, of experience in legal proceedings, and of a vigorous 
 and determined character. This is evidenced by the reforms 
 and improvements he undertook and carried out until the 
 first Assembly was called in 1758. Cornwallis' commission 
 authorized the summoning of an assembly chosen by the peo- 
 ple, but in the then state of the province it could not be 
 carried into effect. Five years and more had elapsed before 
 Belcher came and the condition of affairs had considerably 
 changed. He, it appears, had doubts as to the validity of at 
 least some of the Acts and regulations of the Governor-in- 
 Council, and pressed strongly for the calling of an elected 
 assembly. The subject was considered in Council and he drew 
 up a scheme for the election of members in the different 
 inhabitated districts of the province. It was submitted and 
 discussed at great length, and finally adopted after per- 
 emptory instructions from England came to call the assembly. 
 The Attorney and Solicitor-General of England, Murray and 
 Lloyd, gave their opinion, " that the Governor and Council 
 alone are not authorised under his commission and the royal 
 instructions to make laws. Till there can be an assembly, his 
 Majesty has ordered the Government of the infant colony to 
 be pursuant to his commission and royal instructions, and 
 
48 Historical Account of the Courts 
 
 such further directions as he should give under his sign 
 manual, or by order in Council." 
 
 The Lords of Trade appear to have been much concerned 
 over this matter, and I find among their despatches to the 
 Governor, dated May 7th, 1755, the following reference to 
 the subject: "As the validity of the laws enacted by the 
 Governor and Council or the authority of those acting under 
 them does not appear to have been hitherto questioned, it 
 is of the greatest consequence to the peace and welfare of the 
 Province that the opinion of His Majesty's attorney and 
 Solicitor-General should not be made public until an As- 
 sembly can be convened, and an indemnification passed for 
 such acts as have been done under laws enacted without any 
 proper authority." This suggestion, as will subsequently ap- 
 pear, was carried out, and no doubt the perilous position in 
 which the Governor and Council and the officers acting 
 under them found themselves hastened the measure for call- 
 ing the Assembly. 
 
 On Monday, January 3, 1757, the necessary resolutions 
 for the purpose were passed in Council. On Monday, October 
 2, 1758, the newly elected members met at the Court House, 
 19 in number, and were sworn in. They elected Eobert 
 Sanderson their speaker; the Governor-in-Council consti- 
 tuted the other House, and the two the civil Legislature of 
 the ProTince. Thus came into existence the only body which 
 henceforth could make kws for the Province. 
 
 The hand of Belcher is plainly visible in the early legisla- 
 tion of the province. The late Dr. Aikins informed me that 
 it was he who arranged and revised the laws which appear in 
 our first Statute book, as appears by the copious notes and 
 memoranda in his handwriting in the copy of the British 
 Statutes at large in our Law Library. He adds, what may 
 be of interest to. the Bar Society, that many of the books 
 which formed the foundation of this library are supposed to 
 have been originally his property. 
 
 Mr. Uniacke in his compilation of the Statutes published 
 in 1805 says: "Finding that an edition of the Acts of the 
 Province up to the sixth year of his present Majesty's reign 
 
of Judicature in NoVa Scotia. 49 
 
 (George III.) was published by the late Chief Justice Bel- 
 cher with notes of law cases and marginal references to British 
 Acts of parliament, I considered it proper to republish the 
 same notes and references in this work, not only as a mark 
 of respect to the high and learned character of Mr. Belcher, 
 who was the first Chief Justice of the province, but also as 
 affording the people of the Province a convincing proof that 
 our predecessors anxiously endeavoured, as nearly as local 
 circumstances would permit, to copy the laws of the mothei 
 country, and to form our establishment agreeably to the 
 British constitution." 
 
 We must now turn our attention to the Jour- 
 nals of the House of Assembly and to the Statutes of 
 the Province, and follow the course of legislation as regards 
 the courts. One of their first acts was on October 3rd, to 
 pass a resolution requesting the Governor that all the resolu- 
 tions of His Majesty's Governor and Council heretofore made 
 and passed, may be laid before the House, and also the col- 
 lection of the English Statutes. The Governor having com- 
 plied with their request, a committee was appointed, October 
 5th, to inspect and examine the resolutions of the Governor 
 and Council and report to the House which of them ought 
 to have the force of law. This report was adopted, and it 
 was decided to incorporate the same in one General Act. 
 
 October 9th they voted that a Bill be passed for confirming 
 the past practice of the Courts of Judicature and establishing 
 their practice for the future, and on October 11th an Act 
 was passed, 32 George II. chap. 37, entitled " An Act for 
 confirming the past proceedings of the Courts Judicature, 
 and for regulating the further proceedings of the same. " Be 
 it enacted: That His Majesty's Supreme 'Court, Court of 
 Assize and General Gaol Delivery shall be held, and kept at 
 the iTsual times and places (that is to say) on the last Tues- 
 day in the month of October and on the last Tuesday in the 
 month of April in every year in the town of Halifax, and that 
 a Court of General Sessions of the Peace shall be held quar- 
 terlj', as usual, in every year in the said town, that is to say, 
 on the first Tuesday in the months of December, March, June 
 
50 Historical Account of the Courts 
 
 and September, and that the Inferior Court of Common 
 Pleas shall be held as usual on such first Tuesday in said 
 months of December, March, June and September." The 
 last clauses ratified and confirmed all proceedings to date. 
 
 At the same session another act was passed, entitled " An 
 Act for confirming the past proceedings of the Court of 
 Judicature, and for regulating the further proceedings of 
 the same," and then another entitled " An Act in addition to 
 and in further explanation of the last Act," which completed 
 the legislation directly bearing on the status of the Courts 
 and their proceedings. Thus was ratified and placed on a 
 sound and legal footing all that had been done in our Courts 
 up to this time. 
 
 In the following sessions Acts were passed dealing with 
 many subjects, over which jurisdiction was conferred upon 
 the Courts, but none intimately associated with the present 
 subject until the year 1763, when the House of Assembly 
 represented to the Governor-in-Council the desirability of 
 having two more Judges in the Supreme Court associated 
 with the Chief Justice, among other reasons, saying, "As it 
 is conceived His Majesty's subjects ought not to rest satisfied 
 with the judgment of one person only, and further that so 
 important a Court should not consist of one man however 
 capable and upright." 
 
 On the 32nd June, 1764, the Council advised that two 
 assistant Judges of the Supreme Court be appointed in ac- 
 cordance with the address of the House of Assembly, and 
 on July 13th, 1764, the Lords of Trade answered the applica- 
 tion of the House of Assembly that two assistant Judges will 
 be appointed so soon as they made provision for payment of 
 their salaries. This was done, and in 1764 the Hon. John 
 Collier and Charles Morris were appointed assistant Justices 
 of the Supreme Court. On the 36th April, 1769, the Hon. 
 John Duport succeeded Collier, and on the 34th May, 1770, 
 the Hon. Isaac Deschamps succeeded Duport, who was ap- 
 pointed Chief Justice of P. B. Island (or then known as Is-, 
 land of St. John). I do not follow the list of succeeding 
 Judges, which can be easily traced. 
 
of Judicature in Nova Scotia. 51 
 
 The next Act of importance affecting the Courts was 
 passed in the session of 1768. By 8 & 9 George III., cap. 5, 
 an Act was passed authorizing four terms of the Supreme 
 Court to he holden at Halifax, that is to say, on the first 
 Tuesdays of January, April, July and October in each 
 year. The reason assigned in the recital was the long 
 and injurious detention of prisoners awaiting their trial for 
 crimes alleged against them and thereby "weakening the 
 force and terror of the law, and also the delay in hearing and 
 determining causes of property in said Court." 
 
 Tip to this time, in fact until 1774, the Supreme Court 
 only held its sittings or terms at Halifax. There were no 
 terms in any of the counties, or districts, at that time laid 
 off. Before this, terms for the sittings of the Inferior Court 
 of Common Pleas had been provided by statute in a number 
 of places. It is a matter of interest and some importance to 
 find out how and in what way the Circuits of the Judges of 
 the Supreme Court were first arranged, and under what 
 authority the different Judges held Courts of Assize and 
 General Gaol delivery in the various counties. The Judges 
 do not in this Province, as in England and in some of the 
 other Provinces, receive special commissions for that pur- 
 pose, and, so far as I can ascertain, there never were any 
 commissions for that object issued in the Province. I can 
 find none in the Eecords preserved in the archives, nor were 
 any orders in Council passed granting them. 
 
 Subsequent research leads me to qualify this statement to 
 some extent. I do find in the earlier records of the Council 
 that commissions for holding Courts of assize and general gaol 
 delivery were directed to be issued, but such commissions 
 apparently ceased after the first Legislature was convened, 
 except in some special cases to which allusion will be made 
 hereafter. 
 
 The authority under which the Judges act is based on the 
 Statutes passed at different periods as they became necessary, 
 fixing the times and places at which sittings of the Court for 
 the discharge of civil and criminal business were to be held. 
 
62 Historical Account of the Courts 
 
 The first was enacted in tiie year 1774, 1-1 & 15 George 
 III. cap. 6, entitled, " An Act in addition to and in amend- 
 ment of an Act made in the eighth year of His present 
 Majesty's reign entitled An Act for establishing the times of 
 holding the Supreme Court." 
 
 As the recital in this Act is valuable from an historic 
 point of view, I give it in full: 
 
 " Whereas many and great inconveniences have arisen, 
 and daily do arise for want of a more speedy and full admin- 
 istration of Justice in the several counties in this province; 
 that many suitors living and residing therein do sue and 
 prosecute their actions and causes of complaint in the Su- 
 preme Court at present held only at Halifax, and that their 
 being obliged to come from a great distance themselves, and 
 bringing their witnesses is very detrimental, as well as ex- 
 pensive to them, and great injury is thereby done to indi- 
 viduals as well as to the public good of -the province; And 
 whereas his Majesty has been pleased to grant a commission, 
 and appoint a Supreme Court, Court of Assize and General 
 Delivery, to be holden in and through the province, exercis- 
 ing the powers of the several Courts of King's Bench, Com- 
 mon Pleas, and Exchequer in England, and that the holding 
 of said Court at Certain stated times in such counties to 
 which there is communication with the town of Halifax by 
 land, will greatly contribute to the security of the right of 
 the Crown as well as to the ease and welfare of His Majesty's 
 subjects in this Province. 
 
 Be it therefore enacted by Governor, Council and A.s- 
 sembly. That the said Supreme Court shall from and after 
 the thirtieth day of September next be holden in the several 
 towns and counties at such times and in such manner as are 
 hereafter mentioned, and that the said Supreme Court shall 
 be, and is hereby empowered to proceed at the several sittings 
 in and as near the same manner as hath heretofore been used 
 in the said Court sitting at Halifax, and that the several laws 
 of this province respecting jurors shall extend and be con- 
 strued to extend to the holding of the said Supreme Court 
 
of Judicature in Nova Scotia. 53 
 
 at the said several times and places, and that all the pro- 
 ceedings, rules, judgments and executions of the said Supreme 
 Court legally had made and done in and at their sittings and 
 terms, and at the said several places, shall be good, valid, and 
 effectual to all intents and purposes whatsoever. 
 
 II. And whereas it may be attended with inconvenience 
 that all and every of the Judges of the said Supreme Court 
 should be present at the several sittings of the said Courts, 
 Be it enacted that any two of the Judges of the said Court 
 shall be sufficient for holding the same, and transacting the 
 business thereof at all and every of the times and places here- 
 after mentioned, and the legal proceedings then and there 
 had shall be to all intents and purposes whatsoever as good 
 and effectual as if all the Judges of the said Court were 
 present. 
 
 III. Section 3 then specifies the places, that is to say, 
 Halifax, Horton in Kings County, at Annapolis and at Cum- 
 berland in the county of Cumberland. The particular time 
 for holding the terms is not specified, but the length for which 
 the Court could sit was limited in Halifax to 14 days, unless 
 of unavoidable necessity, when it might be continued for 
 six days longer; in the other places, not to sit longer than 
 five days from the opening of the Court. 
 
 This statute discloses to us the foundation of our Circuit 
 Courts, and the reasons for their constitution, but it also 
 discloses two other facts not generally known at the present 
 time (1) That the two Judges of the Supreme Court then 
 presided at every sitting of the Court on each Circuit. (3) 
 That the Circuit Courts as so constituted were not simply 
 Courts of Nisi Prius as in England, but were invested with 
 all the powers and jurisdiction of the full Court sitting at 
 Halifax, and that jurisdiction continues until the present 
 day except as modified by subsequent legislation and our 
 rules and orders. As every lawyer knows, this is a matter 
 of great importance in the administration of Justice. 
 
 There was however a curious exception made to this state 
 of things by a temporary Act passed in 1794, 34 George III. 
 cap. 10, entitled "An Act providing for the Trial of Issues 
 
54 Historical Account of the Courts 
 
 by Justices of Nisi Prius in the counties of Sydney, Lunen- 
 burg, Queen's County and Shelburne." The recital explains 
 the necessity: " Whereas it is highly expedient for the due 
 administration of justice that Courts of Nisi Prius shall be 
 established in the several counties of this province, in which 
 his Majesty's Supreme Court are not now by law authorised 
 to sit." It then proceeds to enact that in the above named 
 counties it shall be lawful for the GoA'^ernor to assign one 
 or more justices of the Supreme Court, joining with him either 
 one or more of the Justices of the Inferior Court to try such 
 issues by a jury of the county, which justices shall proceed 
 in the same manner as justices of Nisi Prius in England and 
 with the same power and authority. The Governor was to 
 issue a commission for holding such Courts and specify a 
 day for the same between April 1st and October 1st. Then 
 follows a further recital that whereas there are no practicable 
 roads from Halifax to these several Counties by which they 
 may be able to attend the places at the day named, the sheriff 
 may respite the attendance of jurors and witnesses until the 
 Justices arrival. This Act was to be in force for three years. 
 In 1804 by a general Act, 44 George III. cap. 3, I find this 
 Act was continued for one year, which induces me to think 
 it had been kept alive in the meantime by temporary Acts 
 not to be found. 
 
 It would be a tedious and unprofitable task to follow in 
 detail the numerous changes made by the Legislature by 
 which the present circuits of the Supreme Court were finally 
 evolved. I merely purpose to draw attention to some of the 
 more important and curious features in the exercise of judi- 
 cial authority. 
 
 From cap. 13 of 46 George III. passed in 1805 and cap. 
 15 of 50 George III., passed in 1809, it appears that up to this 
 time it was essential to the jurisdiction of the Court that the 
 Chief Justice should be one of the Judges present. By the 
 first of these Acts any one of the assistant judges was author- 
 ized to hold the Supreme Court in any of the Counties 
 associated with any Justice of the Court of Common Pleas, 
 
of Judicature in Nova Scotia. 55 
 
 or any person of the profession of the law duly commissioned 
 by the Governor and Council. By the last named Act it was 
 enacted: 
 
 " That the said Supreme Court shall be held in each of 
 the said Counties and districts by two assistant Justices of 
 the said Court in the absence of the Chief Justice and in no 
 other manner whatsoever." It is further provided that in 
 the event of one of them being sick, or unable to attend, one 
 Judge might hold the Court. 
 
 In 1816 by an Act 56 George III. cap. 2, the whole cir- 
 cuits were rearranged and increased, and in those counties 
 where Courts of Nisi Prius had been provided for the Circuit 
 Courts were now established. 
 
 The last legislation to which the limits of my paper will 
 permit me to draw attention is cap. 5 of 1 & 2 George IV., 
 passed in 1820, entitled " An Act to extend the Laws and 
 Ordinances of the Province of Nova Scotia to the Island of 
 Cape Breton." 
 
 That Act in the preamble recites what is well known, 
 that the Island had been re-annexed to_Nova Scotia as an 
 integral part thereof, and provides among other things that 
 the administration of Justice in the Island shall be conform- 
 able to the usage and practice of the Province of Nova Scotia. 
 That the Supreme. Court shall be held by the Chief Justice, 
 or in his absence by two of the assistant Judges, or by one of 
 the assistant Judges and the associate Circuit Judge of said 
 Court at Sydney in the said County on the last Tuesday in 
 August, and at Arichat on the first Tuesday of September. 
 
 By an Act passed in 1809, 50 George III. cap. 15, provi- 
 sion was ma,de for the appointment of a third assistant Judge 
 to which Poster Hutchinson was appointed on the 10th of 
 June, 1810, thus making four Judges of the Supreme Court. 
 He was the senior member of the Bar and a man of great 
 learning in his profession and of irreproachable character. 
 He belonged to the family of the historian Hutchinson of 
 Massachusetts and was connected with Governor Mascarene. 
 He died 18th November, 1815. 
 
56 Historical Account of the Courts 
 
 In the year 1816 a new and hitherto unknown experiment 
 was made in connection with the Supreme Court. By the 
 Act passed in this year, 59 George III. cap. 2, power was 
 given to the Governor to appoint what was termed an Associ^ 
 ate Circuit Judge, who in the absence of the Chief Justice, 
 with any one of the Judges should be competent to hold a 
 Court in every County or District. By the 4th section it 
 was provided that the person so appointed should, when in- 
 vested with the office, be competent to the exercise of all the 
 duties of an assistant Judge of the Supreme Court while en- 
 gaged in the said Circiiit and not otherwise. There was 
 added a proviso that nothing herein contained shall be con- 
 strued to empower the person so commissioned to perform 
 any of the functions of a Judge or assistant Justice of the 
 Supreme Court at Halifax. Peleg Wiswell, Esquire, was ap- 
 pointed to this office, and, so far as I can find, he was the sole 
 occupant of that anomalous position. It was apparently 
 created in view of the necessity at that time of always having 
 two Judges presiding in the Supreme Court, and the im- 
 possibility of the then number of Judges being able to be 
 present at all the Circuits. 
 
 By the 4 & 5 George IV. passed in 1824, cap. 28, it was 
 provided that when this office became vacant it should not 
 be filled by the Governor. By a subsequent Act passed in 
 1837, we learn that the o.Ticc was at that time vacant and it 
 further recites that it will not be necessary to fill any vacancy. 
 jSTor was it filled, and the reason is to be found in a previous 
 Act passed in 1834, 4 Will. IV. cap. 4, which made a most 
 important change in our judicial system. The preamble to 
 that Act is as follows: 
 
 " Whereas by the laws now in force, it is made necessary 
 that all causes shall be tried before two or more Judges of 
 the Supreme Court, which has been found difficult and in- 
 convenient in practice." It was thereby enacted that after 
 the passing of this Act it should be lawful for one Judge to 
 preside at the trial of any and all issues as well in Criminal 
 or in Civil causes. It was further enacted that the Supreme 
 
of Judicature hi Nova Scotia. 57 
 
 Court shall hereafter be held in the several counties and dis- 
 tricts of this province before one Judge of the said Court in 
 the same manner as the same has been heretofore held before 
 two Judges of the said Court. 
 
 But a further and more sweeping change in the Courts 
 was made in the year 1841, 4 Vict. cap. 3. It was entitled 
 " An Act to improve the administration of the Law and to 
 reduce the number of Courts of Justice, and to diminish 
 the expense of the Judiciary therein." By this Act the 
 Inferior Court of Common Pleas was abolished, and its whole 
 business and jurisdiction handed over to the Supreme Court 
 because of the great delays and other injurious consequences 
 in having the two Courts. Terms of the Supreme Court were 
 made more frequent in the different counties; the office of 
 Associate Circuit Court Judge, which had been vacant for 
 some years, was done ,away with, and provision made to add 
 one more Judge to the Supreme Court, thus, with the Chief 
 Justice, bringing the number up to five. This additional 
 Judgeship was bestowed upon Thomas Chandler Ilaliburton, 
 popularly known as " Sam Slick," who had been one of the 
 Judges of the Inferior Court of Common Pleas. 
 
 By the same Statute, power for the first time was con- 
 ferred upon the Judges of the Supreme Court " to make and 
 frame such rules and orders for regulating the practice thereof 
 as shall appear to them necessary and proper to simplify the 
 proceedings in suits in said Courts, and to prevent delay, 
 and lessen the expense of such proceedings." 
 
 The Supreme Court Bench continued to be made up of 
 the Chief Justice and four Puisne Judges until after the 
 Confederation of the Provinces. The pressure of business 
 again becoming too great for that number to dispose of it, a 
 statute was passed in 1870 authorizing the appointment of 
 two more Judges, thus increasing the number to seven, at 
 which it remains at the present time. Such, in brief, is the 
 liistory of our Supreme Coijrt and the extension of its juris- 
 diction over the whole province of Nova Scotia, ) including 
 
58 Historical Account of the Courts 
 
 the Island of Cape Breton, the gradual evolution of the Cir- 
 cuits in the different counties, and the increase of ihe Judi- 
 ciary in compliance with the demands of public business. 
 The times and places for holding the Circuit Court have been 
 changed at different periods to suit the requirements of the 
 Province, but in these changes we have no particular interest. 
 The full Bench, by which I mean all the Judges, sat in banco 
 only to hear such legal questions and applications for new 
 trials and other business as properly came up to them by way 
 of appeal. In this way all the legal business of the province 
 was tried and disposed of before the one Court until the year 
 1875, when County Courts were established with limited 
 jurisdiction, and resident Judges in the districts for which 
 they were appointed. 
 
 One otlier statute passed in the session of 1849 demands 
 our attention. It is probably unknown to the present genera- 
 tion, except members of the Bar, that up to this time the 
 Chief Justice and Judges received in addition to their in- 
 comes, in fact as part of them, fees and perquisites in all the 
 suits brought in the Court, which must necessarily have 
 seriously added to the costs of suitors. By 12 Vict. cap. 1, 
 passed in 1849, entitled an Act for transferring the Crown 
 Eevenues of Nova Scotia and providing for the civil list 
 thereof, after reciting that, " whereas it is intended that the 
 salaries allowed to the Chief Justice and assistant justices of 
 the Supreme Court shall be in full of all fees, perquisites, 
 and emoluments whatsoever, save and except the traveUing 
 fees allowed by law: It is therefore enacted that it shall not 
 be lawful for the Chief Justice, or any assistant or Puisne 
 Justice of the Supreme Court to take or receive, or for the 
 Prothonotary or any other officer for or on behalf of the said 
 Chief Justice or any such assistant, or Puisne Justice, to 
 demand, take or receive any fee, perquisite or emolument 
 whatsoever for or in respect of the issuing, endorsing or mak- 
 ing of any writ or filing any declaration or entry of any cause. 
 or of the trial of any cause or of the signing of any judgment, 
 or taxing any bill of costs, or for or in respect of any other 
 
of Judicature in if ova Scotia. 50 
 
 proceedings had in any cause in the said Supreme Cotirts, 
 hut thereafter the demanding, or talcing of any such fee, 
 perqusite, or emohiment shall absolutely cease, and deter- 
 mine; Provided always that such Chief Justice, or assistant 
 or Puisine Justice shall receive the travelling fees allowed or 
 which may hereafter be allowed." 
 
 I think all will admit that no wiser piece of legislation in 
 reference to the Judicial office was ever placed upon our 
 Statute Books. 
 
 But I must stop here, as it were, in the very midst of my 
 subject, which even another paper of equal length would by 
 no means exhaust. 
 
 I have left almost untouched the history of the Court of 
 Common Pleas. I have not even mentioned some of the 
 most important Courts which have in the past shared — many 
 of which now share in transacting the judicial business of 
 the country, such as the Court of Chancery and some of the 
 distinguished Masters of the Rolls who presided therein; the 
 Court of Probate, which deals with wills and administration 
 of Estates; the Co^urt of Error and Appeals; the Court of 
 Marriage and Divorce; the Court of Escheat; the Court for 
 the trial of Piracies, and the Court of the Vice-Admiralty. 
 Connected with several of these Courts there is much inter- 
 esting and useful information to be found in our ancient 
 records. I have said nothing of the barristers and solicitors- 
 many of them distinguished in their professional and political 
 career, who have adorned with learning and eloquence our 
 halls of justice and our Legislative Assemblies. I have made 
 but slight reference to the many eminent Judges who have 
 worthily presided in our Courts, and taken such a prominent 
 and useful part in moulding and settling on sure foundations 
 the laws under which we live. All such interesting informa- 
 tion must be reserved for a future time, or for the research 
 of some other investigator, who will find in our musty records 
 ample material to justify the labour it will involve. I cannot 
 lay claim to anything original in these pages which, as stated 
 
60 Historical Aooount of the Courts of Judicature. 
 
 in the outset, were simply intended to set forth in connected 
 and historical order the sources and foundations of our Courts 
 of Justice, which have administered from the beginning and 
 do now administer the law of this Province — those Courts 
 which are bound to uphold and guard with jealous care the 
 rights and liberties which we British subjects have inherited 
 as our birthright, and are entitled to enjoy as our most 
 cherished possession. 
 
 CHARLES J. TOWNSHEND. 
 
HISTORY OF THE COURT OF CHANCERY 
 IN NOYA SCOTIA. 
 
 BY 
 
 CHARLES J. TOVVNSHEND. 
 
 The Court of Chancery in Nova Scotia was constituted 
 simultaneously with the Courts of Comnion Law at the 
 foundation of Halifax in the year 1749. The commission 
 which authorized Comwallis to create Courts of -Justice in 
 the Province and the accompanying Royal Instructions con- 
 ferred the powers necessary for that purpose. Clause 10 of 
 ihe Eoyal Instructions reads as follows: 
 
 " It is therefore His Majesty's will and pleasure that one 
 principal Court of Judieat-are should be held twice a year, or 
 oftener as you shall judge expedient, by the name of the 
 General Court, and to have the jurisdiction of all causes real 
 •and personal at common law above the value of five pounds, 
 to act as a Court of Chancery, but not without appeal to his 
 Majesty when the matter in question shall exceed three hun- 
 dred pounds sterling, as also to try all criminal cases that 
 may come before the said General Court, which said Court, 
 it is his further will and pleasure, should consist of the 
 Governor, or Commander-in-Chief, and the Council of the 
 said Province for the time being, and five whereof is a 
 quorum." 
 
 By virtue of this authority the Governor with' the assist- 
 iince of his Council for several years, and subsequently with- 
 out the members of Council, exercised Chancery jurisdiction 
 until the first Master of the Rolls was appointed by Royal 
 
Missing Page 
 
Missing Page 
 
01 Histori/ of the Court of Chancery in Nova Scotia. 
 
 Commission in 1835. His full title was Governor and Com- 
 mander-in-Chief in and for tlie Province of Nova Scotia and 
 its dependencies. Chancellor, and Vico-Admiral of the same. 
 In all the Chancery records preservGd when the Court sat as. 
 a Court of Chancery for the trial of equitahle suits his nama 
 is entered on the record as " The Chancellor." 
 
 Stoke in his book on the Colonies says: 
 
 "Every Governor of the Province b^ his commission is 
 (1) Captain-General of the Forces. (2) Its Governor-in-Chiel' 
 is one of the constituents of the General Assembly. (3) The 
 Governor has the custody of the Great Seal, and is Chancellor 
 within the Province with the same powers of judicature that 
 the Lord High Chancellor has in England. (4) He is ordinary 
 within his Province. (5) He presides in the Court of Error, 
 of which he and the Council are Judges, to hear and deter- 
 mine all appeals in the nature of writs of error from the 
 Superior Courts of Common Law in the Province. (6) The 
 Governor is Vicc-Admdral within his Province, but does not 
 sit in the Court of Vice-Admiralty, there being a Judge-oi' 
 that Court who is usually appointed from England." 
 
 In my former paper I detailed the several steps taken by 
 our early Governors for separating the judicial from the 
 executive functions of the Council, by first erecting the 
 (,'ounty Courts, afterwards styled "The Inferior Court of 
 Common Pleas," and secondly, by constituting the Supreme 
 Court, with Chief Justice Beloher at its head, thus super- 
 seding the jurisdiction of the Governor and Council, up to 
 that time exercised as " The General Court " in all common 
 law actions. The residuum of judicial power originally com- 
 mitted to the Governor and Council a.s a Court of Chancery 
 was still retained, and was regularly exercised until the 
 appointment of the first ]\Taster of the Bolls, when the 
 Governor ceased to hear and adjudicate in equitable matter* 
 excegt when coming before him as (.'hancellor by way of 
 appeal. 
 
 Haliburton, who wrote the History of Nova Scotia in 
 1829, makes a brief reference to the Court of Chancery in 
 the following terms: 
 
Ilistm-)/ (if the Court of Chanri'nj in Xoi-ii Scotia. 65 
 
 "The (iovernor is C'limipellor in oiricc. The union of 
 these two oirn'os is filled with iliffieulties, and when the 
 Governor is, as has hovn the case in all the Colonics of late 
 years, a military man, (hoy scorn wholly incompatible . . . 
 The. Conrt of Cliancery in this colony ha^ never been con- 
 ducted in a manner to crcato the dissatisfaction alluded to in 
 other Pi-ovini'cs, but the increased business of the Court, the 
 delicate nature of the a])pointnicnt, and the difhculties at- 
 tending the situation, induced our late Lieutenant-Governor, 
 Sir .lames Kempt^ to request his Majesty's Ministers to ap- 
 point a ])rol'essional man to fill the situation of the Master of 
 the Eolls, and the Solicitor-General has been appointed to that 
 office, with a Provincial salai7 of £600 a year. This is the 
 first appointment of the kind over made in the Colonies. It 
 may still be doubted whether it would not halve been more 
 advantageous and convenient to the country at large to have 
 abolished the Court altogether, and to have empowered the 
 Judge of tlio King's Bench to sit as Judge in Equity at stated 
 and ditTercJit terms from those of the Common Law Court. 
 The nature of the Court as at present constituted admits of 
 great delays. An a.ppeal lies from an interlocutory decretal 
 order of a Chancellor to His Majesty in Council and so 
 toties quotn?s, by means of which the proceedings may be 
 protracted by a litigious person to an indefinite length. The 
 unnecessary prolixity of pleadings which characterizes the 
 Chancery at home has been introdiiced into practice here, and 
 the expense and delay incidental to its proceedings are not 
 calculated for the exigencies and means of the country." 
 
 The lapse of time, together with the great and radical 
 changes effected in our judicial procedure by legislation, has 
 left the profession of to-day in almost total ignorance re- 
 specting the old Court of Chancery, when our Governors 
 were the Chancellors. How that jurisdiction was exercised, 
 what practice was adopted, and the nature of the litigation 
 coming before the Court, it may safely be said, is at the pre- 
 sent time unknown. No hook has ever been written on the 
 subject, and no continuous record easily accessible has been 
 kept. Those which remain have been stored away in the 
 
66 Histori/ of the Court of Chancery in Nova Scotia. 
 
 lumber rooms of the Coiirt House, covered with the dust of 
 many years, rendering any study of their contents a work of 
 great difficulty and patience. Until the researches which led 
 to this paper were undertaken, I had the impression which 
 generally prevailed among those who thought on the subject 
 at all, that the equity administered in that Court was of a 
 very crude character— in legal slang, " was measured hy the 
 length of the Chancellor's foot," which interpreted would 
 mean, according to the Chancellor's own peculiar notions of 
 what was just and equitable. An examination of the Chancery 
 records and Chancery papers in the archives of the County 
 Court House will rapidly dispel this erroneous conception, 
 and show it to have been a mistake due to the mists surround- 
 ing the whole subject. It is one of the objects of this paper 
 to throw some light on the procedure and doings of this high 
 tribunal, which in the past played an- important part in our 
 judicial annals. The abolition of the Court of Chancery, 
 nearly fifty years ago has led to its existence being almf;&t 
 forgotten. The solicitors and counsel who practised before 
 the Court have now all, or nearly all, passed away. The busy 
 life of succeeding practitioners has given to them little or no 
 leisure to study the history and preserve the traditions of a 
 tribunal no longer useful or valuable to their practice. This 
 alone is sufficient to' explain the indifference which has pre- 
 vailed, and the obscurity which has gradually and imper- 
 ceptibly enveloped everything relating to the Court. Notliiiig 
 was known as to the mode in which the Governor exercised 
 his jurisdiction as Chancellor, nor as to the practice and 
 procedure adopted — not even the nature of the suits and 
 other equitable matters which came before him. The 
 Governor was generally, if not always, a layman, unversed 
 evem in the common law — and much less in equity juris- 
 prudence. Hence came the natural and important inquiry, 
 how was it possible for an tmtrained layman to properly 
 adjudicate in equitable matters? It is a notable fact, dis- 
 closed by an examination of the provincial statutes, that 
 prior to the appointment of the Master of the KoUs in 1835 
 no legislation of any kind affecting the Court of Chancery 
 
History of the Court of Chancery in J^uva Scotia, 67 
 
 was passed with the exception of two Acts regulating the 
 costs and fees to be taiten by the officers of the Court. 
 During the same period many Acts of importance were passed 
 in reference to the Supreme Court, the Inferior, and other 
 Courts, dealing with their jurisdiction and procedure, while 
 the Court of Chancery seems to have escaped all legislative 
 interference. It can only be conjectured that this was due 
 to the belief that the Chancellor's jurisdiction was beyond 
 the scope of legislative action, or that the Court gave such 
 general satisfaction that legislation was unasked for. 
 
 The record books of the Court of Chancery have been 
 preserved in which the proceedings are carefully transcribed 
 from the first beginning in the year 1751, two years after the 
 settlement of Halifax, with the exception of a few years. 
 These records have been kept with more or less accuracy and 
 detail up to the time of the appointjnent of the first Masrer 
 of the Eolls, and subsequently by the officers of the Cotirt 
 until its abolition. The papers and documents embodying 
 the proceedings and decrees in the various suits are also to be 
 found carefully filed, numbered, and indexed. 
 
 From the pages of the old book I have been able to gather 
 much interesting and useful information. It is indorsed as 
 follows: 
 
 " Chancery. 
 
 The old book and only one formerly 
 kept in that Court." 
 
 On the inside of the first cover James Burrow, Eegistrar 
 of the Court, on the 14th February, 1774, made this note: 
 
 " From the records and papers put into my possession as 
 Eegistrar of the Court of Chancery in this Province, I have 
 selected all the minutes I could find in each cause, and have 
 accordingly put them together into this book from folio 43, 
 it being brought up no further, agreeably to their dates, in 
 order to make it as complete as the materials would allow- 
 also formed an index, by which the contents are at one view 
 seen." He then ai^ds: " This and a parchment covered book 
 
68 Histortj of the Court of Chancery in Nova Scotia. 
 
 (which contained fair copies of the articles inserted in this 
 from folio 1 to folio 14, and seemed to have been designed to 
 be continued), were all the books belonging to this Court 
 that 1 received." 
 
 Owing to the care and accuracy of Mr. Burrow, we are 
 thus assured that we have practically a record of all proceed- 
 ings in Chancery from the institu:tion of the Court. 
 
 It is evident from this record that the Governor sat as 
 Chancellor, assisted by members of the Coimcil. The process 
 issuing out of the Court was signed by the Chancellor and 
 the Secretary, as he was then called, William Cotterel, who 
 was therefore the first liegistrar of the Chancery Court. 
 From a note in the OSTova Scotia archives it appears that he 
 was the first Provost Marshal of the Province, and was 
 succeeded in the office by Captain Foy. He was appointed a 
 member of the Council 23rd October, 1752, and was at that 
 time acting Provincial Secretary. That the Governor aided by 
 the Coimcil at first composed the Court of Chancery, is shewn 
 by the record of the first case actually heard' — ^the case of 
 Johannes Bernett, complainant, against Joseph Jones, de- 
 fendant. This -^vas a bill filed for relief from a contract of 
 purchase on 18th day of March, 1751. After the defendant 
 had made full answer, an interlocutory injunction was granted 
 restraining the defendant in certain proceedings he had before 
 commenced against the complainant in the Common Law 
 Court, and on the 5th December, 1751, the cause was heard. 
 The final decree recites as follows: "This cause coming to 
 be heard before His Excellency Edward Cornwallis, Esquire, 
 Captain-General and Governor in Chief in and over the 
 Province of Nova Scotia, and the members of His Majesty's 
 Council for the said Province, sitting by Eoyal authority as a 
 Court of Chancery, in the presence of the attorneys on both 
 sides." And the decree concludes: "And it is therefore on 
 this said present sixth day of December in the year aforesaid, 
 by His Excellency and the said High and Honourable Court, 
 and the power and authority thereof, ordered, adjudged, and 
 decreed, that this decree, and all the matters s,',nd things 
 therein contained, do stand absolutely ratified and confirmed 
 
Histori/ of the Court of Chanccii/ in Xova Scotia. 
 
 69 
 
 by the order and authority of this Court, to be observed and 
 performed by all the parties concerned according to the terms 
 and true meaning thereof." The point at issae between the 
 parties to this acticn was the vahdity of an agreement 
 verbally made by the complaint with the defendant for the 
 sale of his house and lot. The defendant had gone into 
 possession, and paid part of the purchase money. According 
 to the laws then in force no transfer of title could be made 
 without the sanction of the Governor, which had been refused; 
 The complainant, after notifying the defendant that he was 
 unable to complete the title for want of His Excellenc/s 
 assent, then conveyed the house and lot to William Hoffman, 
 but the defendant, who had in the meantime placed improve- 
 ments on it, refused to give up possession, and commenced an 
 action for damages against the complainant in the County 
 Court. On this state of facts the bill was filed, and the Court 
 in their judgment say: " His Excellency and the members of 
 his said Majesty's Council, acting as aforesaid as a Court of 
 Chancery, doth order and decree that the complainant should 
 stand absolutely discharged and. free from the agreement 
 aforesaid made between him and the said defendant, and that 
 the same being made withoiit His Excellency's privity and 
 consent was of no effect, neither was the defendant bound 
 thereby, and that the said deed so executed by him to the said 
 John William Hoffman, and approved and registered as afore- 
 said, was a perfect and absolute deed and conveyance of said 
 lot, and that the property was absolutely vested in the said 
 John William Hoffman." The decree further directs that 
 the lot be discharged from the attachment placed upon it by 
 the defendant, and that possession thereof be forthwith deli- 
 vered to Hoffman. The money paid by the defendant on 
 aiceoimt was directed to be repaid to him within one month, 
 and each party was condemned to pay his own costs. The de- 
 fendant in his answer took exception to the jurisdiction of 
 the Court, averring that the complainant's remedy, if any, was 
 at common law, fl-hich exception, however, appeai-s to have 
 been overruled. Such was the nature and determination of 
 the first suit in equity tried in this Province. The whole plead- 
 
70 History of the Court of Chanceri/ in Nova Scotia. 
 
 ings, arguments, motions, and decree are transcribed with 
 great fulness, enabling us to form very correct ideas of the 
 Court's procedure and action. I have given these in some- 
 detail for that reason. It would take too much space, and not 
 be of any great advantage, to give partictilars of those which 
 followed. There is one, howcA'cr, of a so^nowhat interesting 
 character to which I must allude — the suit of the Marquis- 
 de Conty and Gravina against Williami Magee and wife, John 
 Brenton, John Grant, and William Kesbitt, which was com- 
 menced on the 10th December, 1753. The proceedings are- 
 recorded at great length. The defendants appear to have in- 
 voked all sorts of devices to delay the complainant and to im- 
 pede the progress of the cause. Demurrer was filed, motions 
 made, examiners appointed, evidence taken under interroga- 
 tories, references made to the Master, reports thereon, excep- 
 tions thereto; but finally the Marquis prevailed and obtained a 
 decree in his favoiir in 1754. This record goes on to stater 
 "After pronouncing the final decree in this cause as above, 
 the solicitor for the defendants made a motion (which he 
 desired might be recorded) to be allowed an appeal from the- 
 sentence of this Court to the High Court of Chancery in Eng- 
 land, which being considered by the Court, the same Was 
 refused, the Court knowing of no right or authority what- 
 soever they have to grant an appeal in any case but to His 
 Majesty in Council. Thereafter the solicitor for the de- 
 fendants made a second motion to be allowed an appeal to his- 
 Majesty in Council. The Court refused the motion, the same- 
 being insufficient." I have no information respecting the- 
 Marquis de Conty and Gravina, but gather from the papers in 
 the cause that his wife died in Halifax leaving considerable 
 property, which she probably bequeathed to others than her 
 husband, and appointed some of the defendants her executors. 
 They took possession of the assets, and this bill was filed on 
 the ground thait the will was void having been made without 
 her husband's consent. It further appears that they had in 
 their custody his child and would not permit the Marquis 
 even to see him,. The Court directed that he be allowed to 
 do so. The final decree was as follows: 
 
Histnni of the Court of Chavcmj in Nova F^cotia. 71 
 
 " It is therefore this present day, viz., the 13th day of 
 August, 1754, and in the 28th year of His Majesty's reign, by 
 His Honour Charles Lawrence, Esquire, President of His 
 Majesty's Council, and Commander-in-Chief of this Province, 
 and the Honourable the rest of the members of the said Coun- 
 cil, sitting as a Court of Chancery of the said Province, and by 
 the authority of this high and honourable Court, ordered, 
 adjudged, and decreed — " showing that at this date the Chan- 
 cellor decided suits in Chancery with the aid of the Council. 
 Another amusing episode of this trial I cannot forbear re- 
 lating. On the 19th March, 1754, there was a hearing on 
 some interlocutory matter. The record goes on to say: 
 
 " The parties having been fully heard were ordered to 
 withdraw that the Court might consider the argument on 
 both sides, when Mr. Grant, one of the defendants, struck Mr. 
 David Lloyd, one of the plaintiff's solicitors, upon their with- 
 drawing from the Court room, of which Mr. Lloyd immediate- 
 ly complained, and prayed the Court's protection." 
 
 The Court immediately decided that Mr. Grant had been 
 guilty of a high contempt of His Majesty's Court, and 
 directed the Marshall to take him into custody, and commit 
 him to prison until the further order of the Court, which 
 was done. The next day Mr. Grant offered a most humble 
 apology for his high offence, and with the consent of Mr. 
 Lloyd he was discharged from prison. All which goes to 
 show considerable feeling between the parties on the subject- 
 matter of the suit. 
 
 There arc many other records in this interesting old book 
 to which [ should like to refer in detail— a reference to one 
 I will make, as interesting to members of the profession. In 
 the case of Anaerson v. Taylor, 14th June, 175G, a bill of 
 foroclosurn, I find that the English practice was followed. 
 The decree is "that Taylor, the mortgagor, have leave to 
 redeem the premises within the space of six calendar months, 
 or otherwise, as the complainant is now in possession, that 
 the defendant's right of redemption be foreclosed, and the 
 premises enjoyed by the complainant, his heirs and assigns, 
 as their property." We have adopted a different mode of 
 
72 History of the Court of Chancery in Nova Scotia. 
 
 foreclosure, which has been used for many years, and, for 
 reasons which T shall give later on, the English practice could 
 not have prevailed for any length of time. 
 
 The jurisdiction of the Court of Chancery, as I have 
 already shown, was at first exercised by the Governor with 
 his Council sitting as a Court, but the constitution of the 
 Court was changed. The exact time I have not been able to 
 fix, owing to the omission of the Eegistrar of the names of 
 those present. But on the 13th May, 1767, from an entry of 
 that date it is plain that the Chancellor presided alone, 
 assisted by Masters in Chancery, who were lawyers. The entry 
 is as follows: 
 
 Between, 
 
 William Butler, Complainant, 
 
 AND 
 
 Robert Campbell, Defendant. 
 Lord William Campbell, Chancellor. 
 
 John Collier, | 
 
 Chas. Morris, [ Masters. 
 
 Richard Bulkeley, J 
 A hearing took place, and decree was made. That this 
 continued to be the constitution of the Court from 1767 until 
 1835, is very clearly shewn by the Chancery Minute Book B. 
 commencing in 1773, and kept by Mr. James Burrow, the 
 Eegistrar, ending in December, 1783, and by the succeeding 
 books of record. 
 
 Mr. Burrow appears to have been an excellent and careful 
 officer. He was appointed Registrar and Clerk 29th May, 
 1773, by Lord William Campbell, and subseqiiently re- 
 appointed by Francis Legge, Esquire, then Governor, 16th 
 August, 1774. 
 
 He has in a memorandum affixed to Minute Book B. fur- 
 nished us with a complete account of the Chancery records at 
 that date, which is as follows: 
 
 1. Book kept by the former Registrar. 
 
tJistonj iif tiw Court nf Chanitenj in Noca Scotia. 73 
 
 Books in Cliancery opened by Mr. Burrow, now in use: 
 No. 1. Eegistrar's Minnte Book. 
 ^. Eecord of all papers filed. 
 
 3. General Writ Book. 
 
 4. Order Book. 
 
 5. Deposft Book. 
 
 6. Copy of all receipts lor money deposited. 
 
 7. Copy of ail receipts for money rettimed. 
 
 8. Book of Decrees. 
 
 9. Table of- Fees. 
 
 10. Distribution Book of Chancery Heirs. 
 
 11. Receipt Book for money paid by the Registrar 
 
 to the officers in Chancery. 
 13. Receipt Book for delivery of all papers and 
 records when under consideration of 
 Masters. 
 
 13. Record of all officers in Chancery. 
 
 14. Copies of Commissions by which officers are 
 
 made or admitted in Chancery. 
 
 22 March, 1777. 
 
 In Bock A., which is the Chancery record of office of the 
 Court, and thoir commissions, and when appointed, we find 
 the following names and officers: — 
 
 His Excellency Francis Legge, Esquire, Chancellor. 
 
 Charles Morris, Esq., Master. 
 
 Richard Bulkeley, Esq., Master. 
 
 James Biurow, Esq., Registrar. 
 
 John Slayter, Clerk to the Registrar, and afterwards 
 appointed Deputy Registrar. 
 
 Richard Gibbons, Esq., Solicitor. 
 
 James Monk, Esq., Solicitor. 
 
 Daniel Wood, Esq., Solicitor. 
 
 W. E. Eaton, Provost Marshall, afterwards Sergeant-at- 
 Arms to the Court. 
 
 A Crier and Messenger, name not given. 
 
 In another book entitled the Registrar's Minute Book, 
 which is Book B., he has made the following valuable his- 
 torical note: 
 
74 History of the Court of Chancery in Nova Scotia, 
 
 " Province of Nova Scotia, Court of Chancery, Eegistrar's 
 Minute Book, regularly entered from the hearings of every 
 cause, and the proceedings of this Court, beginning with the 
 30th October, 1773, and ending with the . . . (a blank not 
 filled). In a note he says: " The first business I acted in 
 Chancery after my appointment of Eegistrar arose soon after 
 the arrival of His Excellency Francis Legge, Esq. — " Then 
 follow entries in the various causes and the doings of the 
 Court therein from the date above mentioned until 31st De- 
 cember, 1783. The first entry, 30th- October, 1773, is in the 
 cause of Malachy Salter v. Greeham Tufts. In this cause the 
 Chancellor ordered the parties and their counsel to attend 
 before him at the Governor's house. Then follows the record 
 of the sitting of the Court: 
 
 At the Governor's House, 12 O'Clock Noox. 
 Monday, Xov. 1, 1773. 
 
 Present: 
 His Excellency the Chancellor. 
 Mr. Bulkeley as Master in Chancery. 
 The Eegistrar. 
 The parties attending with their counsel, viz., Mr. Gibbons, 
 for the complainant, and Mr. Wood, for the defendant. The 
 petition of Thomas Bridge as attorney to the complaint was 
 read, and the Court considering the same obser^'ed there 
 appeared to be no affidavit from the principal himself i-o 
 support the matter of fact stated in the petition on which 
 he foimded the prayer, and as such affidavit was indispen- 
 sably necessary for proceedings of this nature in Chancery, 
 the parties were directed to attend at ten o'clock to-morrow'. 
 and the Chancellor would then proceed further, upon which 
 the Court finished for this day. 
 
 At ten o'clock the next morning the Court opened at 
 Governor's Hcise, but the parties and their counsel were not 
 there, as appears by the following note: " The Court present 
 as yesterday, but the parties not appearing till near eleven, 
 were directed by the Chancellor always in future to be punc- 
 tual to the hour ordered, for he would be exact himself, and 
 expected the same from them." The Court then proceeded to 
 
History of the Court of Chancery in Nova Scotia. 75 
 
 the hearing, of which full details are given, and the Chan- 
 cellor then gave his decision: '•' The Court therefore consider- 
 ing the whole matter, and paying due attention to the plead- 
 ings and allegations of each party; and tlioseon the part of 
 the complainant, supported by the affidavit of Thomas Bridge, 
 not appearing strong enoitgh to continue the injunction, doth 
 order that the same he dissolved, and that the defendant be 
 at liberty to take such execution or executions on the judg- 
 ment so obtained as he shall think lit." From the fact that 
 one Master only was present on the hearing of this case, it is 
 evident they were no necessary part of the Court. I have, 
 however, gone carefully through the record contained in this 
 book, and find that as a rule the same two Masters, Hi chard 
 Bulkeley and Charles Morris, were always present assisting the 
 Chancellor at the hearings. Later on different Masters per- 
 formed the same office. On some occasions I find the common 
 law JiTdges were called in and sat with the Chancellor, no 
 doubt advising him on the more intricate questions coming 
 up for decision. But in pursuing my investigations I have 
 been surprised to find that, contrary to the common im- 
 pression, there was a Master of the Eolls who sat with the 
 Chancellor prior to 1825. The first record of the existence of 
 such an officer is to be found in the Minute Book of the Court 
 of Chancery commencing 31st March, 1789. The following 
 note is on the first page: 
 
 " First Court of Chancery held in which J. Gautier acted 
 as Clerk or Deputy Eegistrar." Then follows: 
 
 " Court of Chancery. 
 1789. 
 March 30. Present — The Chancellor, 
 
 Master of the Rolls, 
 Master in Chancery." 
 
 Then nam.es are given: Governor Parr, 
 
 H. R. Bulkeley, 
 
 F. Hutchinson. 
 " Court opened in Governor's House. Six causes were set 
 down for hearing, but the Court adjourned to 1th February, 
 1790, when this record is made. A desultory conversation 
 
76 History of the Court of Chancery in Xova Scotia. 
 
 took place. Much was said of former causes, and of the 
 above, but the gentlemen of the Bar not being sufficiently pre- 
 pared, the Court adjourned to the 11th inst." Following the 
 record we find that at the ensuing seven sessions of the Court 
 is was similarly constituted, the Master of the Bolls always 
 being present. In the next eleven sessions of the Court we 
 find, in addition to those already mentioned, the Chief Justice, 
 Sir Andrew Strange, sitting with them. The five following 
 sessions were presided over by the Chancellor, the Master of 
 the Eolls, and Master in Chancery. On the 22nd January, 
 1793, the Court was held in the Court House, and then were 
 present in addition to the Chancellor, Master of the Eolls, 
 and Master, the Chief Justice and Judge Brenton. The 
 Registrar notes that the Chancellor was assisted by these twa 
 common law Judges. These same Judges, or one of them, 
 continued to attend the sessions of the Court from this time 
 — -not in all cases, but apparently in the majority of them. 
 We are therefore quite safe in drawing the conclusion 
 that from the inception of the Chancery Court to the ap- 
 pointment of Mr. Eobie by Royal commission, the pro- 
 ceedings were presided over by the Chancellor, at first with 
 the Council as a component part of the Court, and Bome tea 
 or twelve years later by Masters in Chancery, and one or 
 more of the common law Judges. 
 
 I find the following memorandum made in Book Chan- 
 eery ISTo. 1, by James Gautier, Clerk, which should be pre- 
 served as showing the condition of Chancery records at that, 
 date: 
 
 " Memorandum — Halifax, Nova Scotia. On the 37tb 
 May 1792, the Honourable Mr. Richard Bulkeley, Master of 
 the Rolls in Chancery, deposited or gave me in charge for the- 
 first time the following books relating to Chancery, which I 
 had never seen before, although I had acted as Registrar or 
 Clerk from the above printed period (25th January, 1788), 
 viz.. Chancery box in the secretary's office — a parchment book 
 — No. 1, a marble covered book — No. 2 — do. 3, do. 4 (5, 6, and 
 7 wanting), do. 8 (9 wanting), do. 10 and 11 in one book, do. 
 12 and do. 13 and 14 in one book. Every cause in Chancery is 
 
History of the Court of Chancer;/ in Xora Scotia. 77 
 
 now nimibered from Xo. 1 and so on, bearing reference to 
 then books of Chancery No. 1 and 2. From the year 1775, 
 in fact, but more so from 1777 and 1778, the whole recordi of 
 the proceedings in Chancery seems to have dropped, and most 
 61 the books mentioned in the first sentence of this memoran- 
 dum from No. 1 to 14 were exclusive of that, but little wrote 
 in. For fiirther particulars see Chancery book. No. 2." 
 
 I have already mentioned my surprise at finding the title 
 " Master of the Eolls " given in the Chancery records prior 
 to 1825, it being beyond doubt that no such Judge with a 
 Royal commission had up to that time been appointed. The 
 Master of the Eolls is invested with the same judicial power 
 and authority possessed by the Master of the Rolls in England, 
 and as the appointment emanates from the Crown, the office 
 being held under Royal commission, such a title conferred 
 on an officer of the Court not invested with judicial a-uthority 
 was a misnomer — a misconception of the nature of the office. 
 The explanation seems to be that the person called " Master 
 of the Rolls " in these entries was simply the first Clerk, or 
 senior Master in Chancery, but had no judicial authority. 
 The fact that he is never recorded as presiding in Court 
 alone, but always with the Chancellor, brings out clearly ]iis 
 true position. Afterwards when the Master of the Rolls was 
 appointed by mandamus from the Sovereign, he always pre- 
 sided in the Court of Chancery as the sole Judge, and from 
 his orders and decrees there was an appeal to the Governor us 
 Chancellor. On the hearing of such appeals the Chancellor 
 generally, if not always, called in one or more of the common 
 law Judges as his assessors. 
 
 With these records before tis we can at this day form a 
 very fair conception of the old Court of Chancery presided 
 over by our Governors as Chancellors. "We further glean from 
 them that the sessions of the Court were at first held in the 
 Governoi-'s house, then in the council chamber, and finally 
 in the Supreme Court room in the Province building, now 
 occupied by the legislative library. Masters were appointed. 
 There was a Registrar and Deputy Registrar, Sergeant-at- 
 Arms, and crier or messenger, and lastly solicitors duly 
 
78 History of the Court of Chancery in Nova Scotia. 
 
 enrolled and entitled to practise in the Court. It would 
 appear from an entry in one of the Chancery books that the 
 barristers and solicitors had not been always in the habit of 
 attending the sittings of the Court in proper costume. A 
 special order was made in the time of Governor Legge that in 
 future all gentlemen practising before the Chancellor must 
 come properly robed. 
 
 Let ns next turn our attention to the practice and pro- 
 cedure of the Court, and observe how and in what manner 
 its business was carried on. Some particulars of the earliest 
 cases coming before the Court for adjudication have already 
 been given by way of illustration. These, however, by no 
 means cover the whole field of Chancery litigation. We find 
 that defendants were brought into Court by the old process 
 of writs of subpoena regularly issued, tested in the name of 
 the Chancellor, sealed with his private seal, signed by the 
 Registrar, and served by the Provost Marshal, and after- 
 wards by the Sergeant-at-Arms, who was sheriff of the 
 county of Halifax. Bills of complaint, answers, pleadings, 
 and demurrers were duly filed. Motions, references to 
 Masters, interrogatories administered and taken before 
 examiners, orders and decrees made and duly enrolled. Every 
 known subject of equitable jurisdiction, from time to time, 
 seems to have come before the Chancellor for hearing and 
 decision. Briefly to enximerate some of them extracted from 
 the very complete index kept by the Eegistrar, I find bills to 
 set aside agreements^— for injunctions — for injunctions 
 against proceedings at law^ — for account and relief — for fore- 
 closure! — for specific perfoxmance — for account and dissolu- 
 tion of partnership — for discovery — for redemption — for con- 
 tribution among sureties — for dower — for partition — for writs 
 of ne exeat regno — for scire facias to repeal letters patent — 
 for administration of trusts and estates — for writs of 
 de lunatico inquirendo — for writs of certiorari — and lastly one 
 application for a writ of audita querela, which, on the advice 
 of the Chief Justice, was not granted. The above list of sub- 
 jects shows that the scope of the business must have been 
 
History of the Court of Chancery in Nova Scotia. 79 
 
 quite extensive, and the subjects such as to demand consider- 
 able knowledge of equity proceedings and principles. I have 
 not pretended to investigate the correctness of the Chan- 
 cellor's decrees, nor would it serve any useful purpose now to 
 do so. Bills for foreclosure, as we should expect, largely 
 predominate. Many of the modes of procedure then in 
 use have been -swept away by the spirit of modem reform. 
 It is only interesting to us now as showing a Court of equity 
 then in the Province adjudicating and proceeding in all 
 matters requiring equitable relief. 
 
 I now come to the important inquiry as to the practice 
 and procedure which governed our old Chancery Court. 
 Our early Governors being laymen, it occurred to me that 
 their methods of procedure would be of the simplest char- 
 acter, untrammelled with the fixed equity rules and practice 
 of the mother country. This, however, was not the case. 
 Fortunately, we have in one of the Chancery books of record 
 most complete information on this point. The practice, 
 generally speaking, was in conformity with that in vogue in 
 all equity courts at that perioct. But the particular code of 
 procedure and general rules contained in the book above re- 
 ferred to lead to the conclusion that they were taken from and 
 founded upon the procedure then in force in the Irish Court 
 of Chancery. It bears internal evidence of this from its 
 frequent references to the city of Dublin in fixing the times 
 for service of writs and notices. In corroboration of this is 
 the fact that the method of foreclosure and sale in use in 
 Ireland, which we retain to the present clay, was adopted. 
 
 These rules and orders are all to be found in Book A., 
 Chancery Eules of Practice, in manuscript, written out in a 
 clear, legible style, with the following heading: 
 
 "The procedure of the Eules and Practice of the High 
 Court of Chancery as they arise upon the several pleadings and 
 proceedings in causes according to this order." 
 
 Later on in the same book is a second set of Eules, headed 
 ''A Collection of Eules and Orders in Chancery," also in 
 manuscript, made, probably, at' a later date, and a revision 
 of the former. In this set are to be found, in explanation 
 
80 History of the Court of (Jhancery m ^\ova Scotia. 
 
 and support of the various rules, citations from the decisions 
 of the Irish Chancellors, all pointing to the source from which 
 they were evidently taken. 
 
 No doubt these rules must have Been prepared and adopt- 
 ed at a very early date in the history of Ihe Court. No change 
 appears to have been made in tbem imtil 26th December^ 
 1833, when a new or added set of -rules was made. This- 
 addition was made in the last year Mr. Kobie held the office 
 of the Master of the Eolls, and it would seem that just before 
 complaints had been made and legislation enacted to compel 
 improvements in Chancery procedure. 
 
 Mr. Beamish Murdoch, who published his Epitome of 
 the Laws of Nova Scotia in 1833, thus speaks of the 
 Court of Chancery as regarded at that date: "Any 
 one who will deliberately read through the long, un- 
 meaning, but expensive forms of bills and answers in 
 Chancery, and the absurd and nnnecesary processes of 
 contempt, as they are called, must be bHnded by a reverence 
 for antiquity, if he does not think them unreasonable. Those 
 who are (as clients) made acquainted with the dilatory and 
 unsatisfactory progress of any business which goes intO' 
 Chancery, will feel convinced that there is something wrong 
 in a system productive of such results. I have touched upon 
 changes of an extensive nature, because I have reason to 
 think that some alterations of importance are wished for by 
 gentlemen whose long professional experience and high sta- 
 tion in the Courts, and at the bar of this Province, render 
 them the most competent judges of the extent of the evils 
 arising from the present system. The Court of Chancery in 
 England has become a national grievance from its expense 
 and delays, and some of the colonies and many of the United 
 States have no Court of Chancery, being disposed rather tO' 
 submit to many of the strict rules of the common law in 
 ordinary cases, and in important questions to resort to legis- 
 lative Acts." 
 
 This extract probably reflects correctly the opinion of the 
 profession and public at large at the time it was written, 
 respecting the Court of Chancery in this Province. As already 
 
History of the Court of Chancety in Nora Scotia. 81 
 
 noticed, it was jnst then that the Legislature took the matter 
 in hand, and passed a statute requiring and authorizing the 
 making of new rules for expediting and cheapening pro- 
 cedure in the Court. 
 
 The new rules bear the following heading: 
 
 " COURT OF CHANCERY, 20 DsC. 1833. 
 
 " His Honour the Chancellor, by and with the advice of 
 the Master of the Eolls, doth hereby order and direct in man- 
 ner following, that is to say." Th€n come twenty-two new 
 rules not meriting any particular notice here. An appeal is 
 provided for from the Master of the Eolls to the Chancellor^ 
 and, as we already know, where the amount in litigation ex- 
 ceeded £300, there was a further appeal to the Judicial Com- 
 mittee of the Privy Council. 
 
 I do not find that any new or additional rules were made 
 during the period the office of Master of the Eolls was held 
 either by Mr. Fairbanks or Mr. Archibald. But on the 26th 
 August, 1846, shortly after Mr. Stewart's appointment, a 
 number of new rules were made, and some of the previous 
 orders were rescinded. Mr. Stewart, during his incumbency 
 of office, continued from year to' year to promulgate new 
 rules, doing away with many ' of the old and cumbersome 
 ones, and generally improving the mode of procedure. It- 
 will be sufficient to give the date of their enactment to shew 
 how assiduously the last Master of the Eolls was working to 
 reform the procedure of the Court of Chancery, and to clear 
 away many objectionable features which had grown up in 
 the course of years. The succeeding new rules and orders 
 were made in rapid succession as follows: 1 Sept., 1846; 
 31 Dec, 1847; 17 Jan., 1848; 27 Jany., 1848; 15 May, 
 1848; 20 Nov., 1848; 4 Jan., 1849; 13 Dec, 1849; 4 June, 
 1849; 29 Jany., 1850; 31 Jany., 1850; 1 March, 1850; 2 
 March, 1850; 7 Jan:, 1851; 25 Feb., 1851; 13 March, 1852; 
 5 May, 1852; 4 May, 1852; and 14 Dec, 1852. 
 
 It would, of course, be out of place in a sketch of this 
 kind to discuss or comment on the great changes efFected 
 
82 History of the Court of Chancery in Nova Scotia. 
 
 in Chancery methods by these rules, but by any one suffi- 
 ciently interested critically to make an examination, it will 
 be found that many of the reforms in practice subsequently 
 adopted in our present Judicature Act were brought into 
 force. 
 
 That the Court of Chancery did a large and increasing 
 share of the judicial business of the Province is evident from 
 the number of cases entered. From the records it appears 
 that up to the year 1799 there were heard and determined 
 133 causes and matters, and altogether from the year 1751 
 imtil the year 1856, when the Court was abolished, 1,904, 
 which is sufficient proof that in its latter years it was kept 
 busily employed. 
 
 Among the many professional men who practised before 
 the Court are the names of those familiar to us and distin- 
 guished in our political and judicial annals. Gibbons, at one 
 time Solicitor-General, and later Attorney-General, for the 
 Province; Monk, who subsequently became a Judge of our 
 Supreme Court; Blowers, at one time Chief Justice; Eichard 
 John L'niacke, once Attorney-General; Foster HutchinsoTi, 
 one of our Supreme Court Judges; Eobie, who became first 
 Master of the Rolls; Young, who became Chief Justice; 
 Johnston, later an Equity Judge; and John W. Eitchie, his 
 very able successor. There were many others, whose names 
 time alone prevents me from mentioning. The well-known 
 reputation of these lawyers is a sufficient guarantee that, 
 especially in later times, the matters litigated in the Court of 
 Chancery must have been tried with learning and accurate 
 knowledge of equity jurisprudence. It is not my intention 
 to follow and point out in detail the proceedings of the Court 
 of Chancery during the period the Lieutenant-Governor was 
 Chancellor and sole Judge of that Court — not that the records 
 do not afford abundant material both interesting and in- 
 structive, but, properly to tell the history of the Court from 
 the year 1825 until it ceased to be in 1856, demands the re- 
 maining portion of my paper. 
 
 The business of the Court of Chancery had gradually in- 
 creased, and the Governor had for some years been striving 
 
History of the Court of Chancery in Nova Scotia. 83 
 
 to have a regular Equity Judge appointed. In 1818 Lord 
 Dalhousie, then Governor, had actually commissioned Chief 
 Justice Blowers as Master of the Rolls, but on reference to 
 the Imperial Government it was disapproved of, and the 
 commission cancelled. ISTo reason is assigned for this, and 1 
 only assume that the Home Government so refused because 
 the two positions were incompatible. 
 
 On Tuesday the 14th February, 1836, the Lieutenant-Gov- 
 ernor by message informed the Assembly that, having ex- 
 perienced considerable difficulty in discharging his duties as 
 Chancellor for want of a competent legal assistant, uncon- 
 nected with any of the common law Courts of the Province, 
 he had deemed it his duty to represent to his Majesty the 
 necessity of appointing a Master of the Rolls, and had at the 
 same time recommended Mr. Robie for the appointment. 
 The King having approved this, his Excellency now sug- 
 gests to the Assembly the expediency of their making suit- 
 able provision. He had commissioned Mr. Robie as Master 
 of the Rolls under a conviction of the necessity of the office. 
 On Tuesday the 21st February the message received from his 
 Excellency relating to the appointment of Master of the 
 Rolls, upon the second reading of a resolution of the eom,- 
 mittee that it was expedient to make a suitable provision 
 for this office, underwent considerable discussion. It was 
 supported by the Speaker, Messrs. Fairbanks, Lawson, Uni- 
 acke, and Eraser, on the ground that his Excellency had ex- 
 perienced difficulties in presiding in the Court of Chancery, 
 having felt himself not altogether competent to decide upon 
 the matters which caAie before him; that it was a boon which 
 his Excellency deserved from his zeal for the public service 
 and the general interest of the Province ; that the recom- 
 mendation not only came from his Excellency, but also from 
 his Majesty's ministers; and that the pecviliar favours which 
 this Province had received from the mo.ther country had 
 every claim upon respect and gratitude. Mr. Young con- 
 sidered that it would be highly improper to run in the face 
 of his Excellency's recommendation, but when he considered 
 the very heavy expense the judicial establishment was to the 
 
84 History nf the Court of Chcmcenj in Nova Scotia. 
 
 Province, and that it was the first appointment of a Master 
 of the Eolls thronghont the British foreign possessions, it 
 would be well to pause before they made the appointment. 
 He therefore recommended it to be limited to the period of 
 his Excellency's administration — this mode, he thought, would 
 be treating his Excellency's message with more distinguished 
 consideration, and would enable the Province to judge 
 whether the advantage arising from the office was commen- 
 surate to the expense. Messrs. B. DeWolf, "VV. H. Roach, 
 and Church strongly opposed the measure. The committee 
 divided, and the question was carried, twenty voting for it, 
 and ten against it. The bill subsequently passed this session 
 giving i600 a year permanently as salary of the Master of 
 the Rolls. Mr. Robie was made Master of the Rolls. The 
 Act which thus made the first provision for Master of the 
 Rolls will be found in the Provincial Statutes, Chapter XL, 
 passed in the year 1836. It is not otherwise of importance 
 than as fixing the salary in lieu of all other charges or fees. 
 
 Simon Bradstreet Robie was by Royal commission ap- 
 pointed first Master of the Rolls for the Province of Nova 
 Scotia on the 5th December, 1825, and held that office imtil 
 his resignation in 1834. His commission is duly registered in 
 the record book of office, and I give it in full. The subse- 
 quent commissions to his successors' were in the same lan- 
 guage. 
 
 " George the Eourth, by the Grace of God, etc., etc. 
 To our Trusty and well-beloved Simon Bradstreet Robie, 
 Esquire, Greeting. 
 
 Having taken into our Royal cons*ideration the loyalty, 
 integrity, and ability of you the said Simon Bradstreet 
 Robie, do by these presents constitute and appoint you to be 
 Master and Chief Clerk of the Rolls and Records in and 
 belonging to our Court of Chancery of and in our said 
 Province of Nova Scotia. To have, hold, exercise, and enjoy 
 the said office of Master and Chief Clerk, of the Rolls and 
 Records of our said Court of Chancery with you the said 
 Simon Bradstreet Robie during our pleasure, together with 
 all the powers and authorities to said office belonging, with 
 
History of the Court of Chancery in Nova Scotia. 
 
 all and singular the rights, salaries, fees^ profits, and advan- 
 tages therennto belonging, in as full and ample a manner as 
 the same can be held and enjoyed. In testimony whereof, 
 etc., etc., witness our trusty and well-beloved Lietitenant- 
 Oeneral, General Sir James Kempt, Lieutenant-Governor, 
 Commander-in-Chief, and Chancellor, etc. 
 Dated Sth December, 1825." 
 
 Mr. Eobie entered on the duties of his office, attending to 
 all the judicial work prior to this date performed by the 
 Chancellor. The Minute Book of Chancery kept during his 
 time indicates that the usual business of a Court of Equity 
 was carried on before him as Judge of the Court. After 
 glancing through the various entries of causes and matters 
 heard before him, I find nothing of special note except the 
 additional rules first passed during his term of office, to 
 which I have already made allusion. 
 
 On the 5th August, 1834, Charles Eufus Fairbanks was 
 appointed Master of the Eolls on the resignation of Mr. 
 Eobie, and filled that position until his death in 1841. I 
 find in the record books the following account of his first 
 taking his seat as Master of the Eolls: 
 
 " Monday, 18th August, 1834. 
 " The Court opened in the Court House in the Province 
 Building this day at 11 o'clock. 
 
 Present — His Honour Charles Eufus Fairbanks, Master 
 of the Eolls. 
 Nathaniel W. White, Eegistrar. 
 John James Sawyer, SherifE of Halifax. 
 The Crier. 
 
 The Attorney-General and the Counsel and 
 Solicitors practising in Chancery. 
 His Honour directed the commission for his appointment 
 to the office of Master of the Eolls to be read, and this being 
 read it was ordered to be entered in the minutes. 
 
 His Honour intimated to the bar that the Eolls Court 
 would for the present, and until further order herein, be 
 held regularly on the first and third Mondays of every month 
 
86 History of the Court of Chancery in Nova Scotia. 
 
 (except during the terms of the Supreme Court), and on 
 such other days as should be particularly appointed. That 
 the Court would sit in the Court House in the Province 
 Building, which, with the approbation of the Chancellor, 
 had been appointed by his Honour as most suitable for the 
 public proceedings of the Court, and would be attended by 
 the sheriff and other officers, and that gentleman of the bar 
 would require to appear in professional costume." 
 
 One would infer from reading this order that the sittings 
 of the Court of Chancery before Mr. Fairbanks's time had not 
 been open to the public, or at least had not been held in the 
 Court House where the public could attend, aad that gentle- 
 men of the bar had been heard without being in proper dress. 
 I should be inclined to draw the conclusion from this and 
 other circumstances that in Mr. Eobie's day Chancery proceed- 
 ings were conducted in a loose and informal manner, which 
 Mr. Fairbanks was determined to correct. I find a record in 
 the Chancery Minute Book at p. 40 which is of some import- 
 ance as showing that when the Chancellor presided in the 
 Court after the Master of the Eolls was appointed, he was 
 assisted by the common law Judges. The entry is as follows: 
 
 " THURSDAY AND FRIDAY 14tH & 15tH MAY, 1835. 
 
 Present — The Chancellor. 
 
 The Chief Justice. 
 
 Mr. Justice Hill, 
 
 Mr. Justice Bliss. 
 Cause: Gussie v. Miller. 
 This cause was heard on exceptions." 
 On the 19th May, 1835, is this entry, showing some fric- 
 tion between the Chancellor and the common law Judges: 
 
 "TUESDAY, MAY 19, 1838. 
 
 Court of Chancery opened. 
 Present — The Chancellor, 
 
 The Master of the Eolls, 
 
 Mr. Nutting and The Eegistrar. 
 
History of the Court of Chancery in Nova Scotia. 87 
 
 The Chancellor directed the Eegistrar to address a note 
 to the Chief Justice and other Jiadges to inquire if they 
 meant to attend the Court this morning according to the 
 adjournment made by the Chief Justice. His Excellency 
 waiting for an answer, and the bar in attendance. After 
 waiting until 12 o'clock, and the Judges not attending, his 
 Excellency had a paper written by himself setting forth that 
 he had attended and waited for an hour, and having had no 
 intimation from them that they would not attend, he would 
 adjourn the Court until to-morrow, Wednesday, at 13 
 o'clock." 
 
 On "Wednesday 20th May, 1835, follows this entry: 
 " The Court opened in the Council Chamber — Present, the 
 Master of the Eolls and the Eegistrar. 
 
 Captain Campbell, A.D.C., delivered to his Honour a mes- 
 sage from his Excellency stating that being engaged in Coun- 
 cil he could not attend the Court and did not know when he 
 could come down. His Honour then adjourned the Court 
 imtil Monday next at 11 o'clock." Beyond these extracts, I 
 have observed nothing of consequence to note in the Chan- 
 cery proceedings during Mr. Fairbanks's period of office. 
 There was evidently a large amount of the ordinary business 
 transacted, as the minute book shows, and I have always 
 understood that Mr. Fairbanks was an efficient and able 
 Judge. 
 
 Samuel G. W. Archibald succeeded Fairbanks as Master 
 of the Eolls on the 28th April, 1841, and held the office 
 until his death in 1846. The fame of his eloquence as an 
 orator, and the important part he played in the public afEairs 
 of Nova Scotia, are too well known to need any further 
 reference on my part. His life was written years ago, in 
 which all particulars have been given to the world. He 
 had been one of the foremost lawyers in the Province, and 
 enjoyed a large practice in the Court of Chancery, as the 
 records disclose. As in the time of his predecesors, I find 
 nothing of an interesting or remarkable character in the Chan- 
 cery records during his termi to make mention of. All the 
 business of the Court seems to have been in the usual channel. 
 
88 History of the Court of Chancery in Nova Scotia. 
 
 It is unfortunate that no reported decision of our first three 
 Masters of the Rolls remains, and except the decrees they made 
 we have no material from which to form an opinion of their 
 qualifications as Equity judges. There are yet living per- 
 sons who remember both Fairbanks and Archibald, and who 
 speak of them both as men of high ability and integrity. 
 
 Mr. Long^vorth in his life of Mr. Archibald, at p. 15G, 
 makes the following reference to him as a Judge: "Mr. 
 Archibald soon had an opportunity of displaying his judicial 
 qualities in his new position. The sound common sense 
 which distinguished his judgments, and which after all forms 
 the foundation of law, and equity — the clearness and preci- 
 sion with which the principles underlying the case weie 
 annotinced and applied — ^gave a character to his decrees which 
 was not generally expected on the part of the bar. Had he 
 ascended the bench earlier in life, he would undoubtedly have 
 left behind him a reputation as a jurist not inferior to that of 
 almost any of the distinguished men who have held office as 
 Judges in JSTova Scotia." 
 
 I have not been able to find the decisions or decrees to 
 which Mr. Longworth alludes, but presume he makes the 
 statement from the recollections of lawyers who knew and 
 heard Mr. Archibald. 
 
 The fourth and last blaster of the EoUs of this Province 
 was Alexander Stewart, appointed on the 30th May, 1846, 
 on the death of Mr. Archibald. Like his predecessor, he 
 had taken a leading and distinguished part in the public 
 affairs of this Province, and was regarded as a lawyer of 
 eminent ability and learning and uprightness of character. 
 To many of the present generation he was well known, and 
 we are fortunate in having a few of his decisions reported, 
 which bear testimony to the justice of the reputation he 
 enjoyed as a Judge. He remained Master of the Rolls until 
 the Court of Chancery was abolished in the year 1856. It 
 was during his term of office that the agitation eommicnced 
 which ultimately resulted in that important measure, and 
 to which I will shortly turn my attention. 
 
Historij of the Court af Chancenj in Nova Scotia. 89 
 
 With this brief reference to the four Masters of the Eolls, 
 I must pass on to other matters bearing on the constitution 
 and proceedings of tlie Court. I have before mentioned that, 
 with the exception of Uvo Acts fixing the fees to be talcen, 
 no legislation affecting the Court was enacted until 1826, 
 when the Act was passed providing a salary for the Master of 
 the Eolls. I have also pointed out that the Chancellor ordi- 
 narily presided as sole Judge, with two or more Masters in 
 Chancery as his assessors or advisers. The Masters, how- 
 ever, had no judicial authority. Their powers, as shewn by 
 their commissions, were similar to those possessed by Masters 
 in Chancery in England or Ireland at that time. On the 
 appointment of a Master of the Eolls their assistance was no 
 longer required, and from the records it is evident they did 
 not sit with him. I observe, however, in some few cases 
 where the Master of the Eolls was disqualified from interest 
 or other cause, the senior Master in Chancery, at that time 
 Mr. ISTutting, sat as Judge and decided the matters coming 
 before him. In some other instances the Chancellor him- 
 self sat and heard the cases, assisted by the common law 
 Judges. About the year 1833 great and growing dissatis- 
 faction was aroused from the expense and delay in the Chan- 
 cery Court. As a consequence, the statute 2 Wm. IV. ch. 
 42 was passed, entitled "An Act for appointing commis- 
 sioners to inquire into and report upon the expediency of 
 reforming the practice and proceedings in the Courts of 
 Law and Equity." etc. The preamble, after reciting that 
 whereas it has become necessary to revise the civil and crimi- 
 nal codes of this Province, and to render the practice' of the 
 Courts of Law and Equity more simple and less expensive, 
 then proceeded to outline the appointment of five commis- 
 sioners to deal with the subject and report to the Lieutenant- 
 Governor. 
 
 Chapter 19 of 3 Wm. IV. was an Act passed for the more 
 easy redemption and foreclosure of mortgages, but the results 
 of the report more fully appear in ch. 52 of 3 Wm. IV., 
 "An Act for amending the practice of the Court of Chan- 
 cery and diminishing the expenses thereof." 
 
90 History of the Court of Chancery in Nova Scotia. 
 
 Sec. 1 empowers and requires the Master of the Eolls and 
 Chancellor from time to time to make such rules and course 
 of practice as will reduce the great prolixity, expense, and 
 delays of the proceedings, business, and pleadings under the 
 present practice, as shall be deemed most expedient and 
 effectual for the ease of the suitors therein. 
 
 Sec. 3 enacts that in all matters not regulated by the 
 present practice, or the rules and orders to be made, the prac- 
 tice of the High Court of Chancery in England shall be fol- 
 lowed until the same shall be changed under the Act. 
 
 Sec. 3 abolishes certain formal proceedings, etc. 
 
 Sec. 4 enables the Court of Chancery to use the same 
 powers of execution to enforce its judgments and decrees as 
 are in use in the Supreme Court. 
 
 Sec. 5 enables the Chancellor to establish a proper seal 
 for the Court. 
 
 Sec. 6 enables the Master of the Eolls to sign all ortfers 
 and decrees made by him, and in case of decrees makes the 
 Chancellor's signature unnecessary when he is absent from 
 Halifax, but provides that the enrolment of all decrees 
 be signed by the Chancellor. It further constitutes the 
 Master of the Rolls the responsible adviser and Judge of the 
 said Chancery Court. 
 
 Sec. 7 provides that a Master Extraordinary of said Court 
 shall be commissioned and appointed in each county or dis- 
 trict of the Province, and gives every such Master power to 
 administer oaths in proceedings to be had in the Court and 
 to act as an Examiner of said Court. 
 
 Sec. 8 validates all sales of real estate made under decrees 
 of the Court, and empowers sales to be made by the Court 
 in future. 
 
 Sees. 9 and 10 refer to matters not necessary to observe 
 upon here. 
 
 Sec. 11 extends to the Court of Chancery the right to 
 take evidence de bene esse as in the Supreme Court. 
 
 Sec. 13 enables the Court of Chancery to permit the 
 examination of witnesses viva voce before the Court. 
 
History of the Court of Chancery in Nova Scotia. 91 
 
 From a consideration of this statute it will be seen that 
 a number of useful reforms were made. For the first time 
 the Master of the Rolls is constituted by statute a Judge in 
 Chancery with extended powers. It would seem that up to this 
 time the Chancellor's signature was necessary to the validity 
 of all rules and orders, but this is now dispensed with, aud in 
 decrees when he is absent from the Province. The process 
 of the Court is simplified in respect to execution of decrees, 
 and a settled mode of procedure ratified by statute, and I 
 should think a very great improvement was made in allowing 
 witnesses to be examined viva voce in Court. Hitherto the 
 practice was to have them examined by means of interroga- 
 tories before examiners, which can never be as satisfactory as 
 in open Court. I observe that Stewart signed all rules with 
 the statutory title of Eesponsible Adviser and Judge of the 
 Court of Chancery. 
 
 I have already adverted to the rules and orders which 
 were passed and the great reforms eventually effected in the 
 proceedings in Chancery under the authority of this statute. 
 One curious feature is brought out by the statute 5 
 Wm. IV. eh. 26, that the then Master of the Rolls, Mr. 
 Fairbanks, was at the same time a member of the House 
 of Assembly. It was then provided that thereafter no per- 
 son holding the of&ce of the Master of the Rolls or Judge 
 of the Court of Vice-Admiralty should be eligible to be 
 elected, and further provision was made for Mr. Fairbanks 
 to resign his seat. It strikes one as sing-ular that a Judge 
 should have been permitted to retain a seat in the Legisla- 
 ture, but I believe it is not without precedent in England, 
 where the Master of the Rolls at one time sat in the House 
 of Commons. 
 
 In 1848, chap. 21 of 11 Vic. was passed, making the 
 Judges of the Supreme Court and Master of the Rolls 
 independent of the Crown. It provides that, notwithstand- 
 ing their commissions are only during pleasure, and that on 
 the demise of her Majesty they would become vacant, 
 they should hold their respective offices during good be- 
 haviour, and that they should not cease to hold them by 
 
92 History of tlie Court oj Chancery in Nova Scutia. 
 
 reason of the death of the Sovereign. It further provides 
 that in case of any vacancy it shall be lawful for the Gover- 
 nor, under the Great Seal of the Province, to appoint a fit 
 and proper person until the Eoyal pleasure shall be known. ■ 
 
 The statutes which I have mentioned comprise all the 
 legislation touching the Court of Chancery until the final 
 Act was passed in 1855 which swept it out of existence, and 
 to the consideration of which I now turn. 
 
 The statute which completed the destruction of the 
 Court of Chancery in this Province was passed in the session 
 of 1855. It is chapter 23, entitled "An Act for abolishing 
 the Court of Chancery and conferring Equity Jurisdiction 
 on the Supreme Court." 
 
 Sec. 1 provides that " the Supreme Court shall have 
 jurisdiction in all cases heretofore determinable by the Court 
 of Chancery, and shall exercise the like powers and apply 
 the same principles of equity as justice may require, and as 
 have heretofore been administered in that Coiirt." 
 
 Sec. 2 provides that the practice of the Supreme Court 
 now or hereafter to be established as far as it is applicable 
 thereto shall be observed, and in any case where the provi- 
 sions of the practice and this Act shall not apply, the prac- 
 tive of the English Court of Chancery shall be adopted. 
 
 The remaining sections make further provisions respect- 
 ing jurisdiction and procedure in the Supreme Court in 
 equitable suits, provide a pension for the Master of the 
 Rolls, the Hoii. Alexander Stewart, and the Eegistraf; and 
 the concluding section brings the Act into operation on 
 1st August, 1856. 
 
 Thus was brought to its end, after an existence of more 
 than a century, the old Court of Chancery in the Province 
 of Xova Scotia. Opinions have varied, and doubtless will 
 always vary, as to the wisdomi of this step. The passage of 
 time — now nearly half a century^has greatly obscured some 
 of the underlying causes which led to such a momentous 
 change in our judicial procedure. It is doubtful if these 
 will ever be perfectly understood, but from the newspaper 
 
History of the Court of Chancery in Nova Scotia. 93 
 
 discussions at the time, the reports made to the Legislature, 
 and the debates in the House of Assembly, Ave can to some 
 extent judge of the spirit and motives which influenced the 
 Legislature. 
 
 The spirit of judicial reform was in the air, not only as 
 regards the Court of Chancery, but also the other Court- of 
 the Province. On 1st February, 1849, the liouse of Assembly 
 passed a resolution that a "committee be appointed to in- 
 quire into the general jurisprudence of the Province and prac- 
 tice of the Supreme Court, and to report to this House by 
 bill, or otherwise." On this committee were Howe, John- 
 ston, Young, Harrington, Henry, Marshall, and Creelman. 
 Nothing appears to have resulted from the labours of this 
 rommittee. On the 4th March, 1851, a resolution was 
 passed to appoint a select committee to take into considera- 
 tion the propriety of abolishing the Court of Chancery, on 
 which were appointed Johnston, Marshall, Harrington, 
 Young, Henry, Killam,, and Fulton, and on the 28th March, 
 1851, Mr. Henry reported and presented a bill to abolish 
 the Court of Chancery and to transfer Equity jurisdiction to 
 the Supreme Court. This bill passed the lower House, but 
 was thrown out by the Legislative Council. As a result of 
 this, on the 7th April, 1851, Mr. Johnston moved that a 
 commission be appointed to inquire inte the practice and 
 f)roceedings of the Courts of Law and Equity with a view of 
 transfer of the Equity to the common law jurisdiction, if it 
 be practicable, and to prepare a bill. The commissioners ap- 
 pointed were Brenton Haliburton, C.J., Mr. Justice Bliss, 
 J. B. ITniacke, and W. A. Henry. Their report is to be 
 found in the House of Assembly Journals, 1852, Appendix 
 ISTo. 73. After reporting elaborately on the proposed changes 
 in the practice of the Supreme Court, they make the follow- 
 ing observations: 
 
 " Although the expediency of transferriiig the jurisdic- 
 tion of the Court of Chancery to the Court of common law 
 has been under our consideration, neither the time at oui^ 
 command, nor the materials and information within our 
 
94 History of the Court of Chancery in Nova Scotia. 
 
 reach, have been such as to enable the commissioners to ar- 
 ri-ve it any conclusion, and having perceived the question 
 of Chancery reform has been submitted to the consideration 
 of a commission in England, whose report has been sub- 
 mit ced to Parliament, they have been influenced by a desire 
 to avail themselves of the result of the investigation before 
 coming to a conclusion on this difficult and important 
 branch of their inquiries." 
 
 It will be interesting to call attention here to a fact which 
 appears from correspondence published in the Journals of 
 the House of 1852, that the bill for the abolition of the 
 Court had been introduced, and passed the Assembly without 
 even giving notice to the Master of the Eolls of such inten- 
 tion, apart from the still more remarkable fact that no re- 
 port or investigation on the subject had been laid before the 
 House. This is noted here as indicative of the spirit which 
 must have inspired the governing parties in the Legislature 
 in respect to the Court, and the Master of the Eolls. 
 
 Their final reports on the abolition of the Court of Chan- 
 cery will be found in the Assembly Journals, 1853, Appendix 
 No. 16. The commissioners were unable to agree on any 
 report and were requested to submit their individual views. 
 Only three did so. Mr. Young gave his own views, and 
 whatever may be our opinion on the question, a perusal of 
 this paper does not show that profound and practical know- 
 ledge which we should expect from a legislator and lawyer 
 of his experience. On the other hand, the views of the chief 
 Justice and Judge Bliss display the result of long experience 
 and thorough acquaintance with the whole subject, expressed 
 in vigorous and clear language. "While Mr. Young in strong 
 terms contended for the suppression of the Court, the Chief 
 Justice and Judge Bliss pointed out the erroneous theory 
 on which those who desired it abolished were building, and 
 exposed the failure to which it was doomed, and the very 
 mischiefs which afterwards followed. The ablest defence, 
 however, made for the Court was by the Master of the Eolls 
 himself. This defence is not to be found in the Journals of 
 
History of the Court of Chancery in Nova Scotia. 95 
 
 the Assembly, although it was in the form of a letter ad- 
 dressed to the commissioners, and he requested its publica- 
 tion with their report. Why it should have been excluded 
 does not appear, but Stewart took care to have it recorded 
 in the record books of the Court. It is too long to be re- 
 produced here, but some of the points deserve notice. The 
 principal grounds urged for the abolition of the Court are 
 no doubt fully expressed in Mr. Young's speech introducing 
 the bill in the session of 1855. " The great objection," says 
 Mr. Young, " to the Chancery as now constituted is that its 
 forms, delays, and expensive machinery exclude a vast 
 amount of business which ought to be adjudicated on by it." 
 
 The answer to these charges in Stewart's letter to the 
 commissioners is very decisive and the facts in support 
 strong. He points to the great reforms and changes which 
 had been made within recent years, simplifying the practice, 
 and lopping off many useless forms in the conduct of the 
 proceedings. In this both the Chief Justice and Judge Bliss 
 corroborate his statements in their reports. As to delays, 
 he significantly calls their attention to the fact that not one 
 cause remained in his Court undisposed of which had been 
 heard before him. In respect to expenses, while giving 
 figures to show that they are not large in comparison with 
 other Courts, he at the same time reminds them that the 
 scale of costs and fees to be taken are fixed by the Legisla- 
 ture, and not by' him. After explaining at some length the 
 objections to the proposed transfer of the Chancery business 
 to the common law Courts, he challenges those who are 
 making and repeating the charges against the Court, to come 
 forward with proof of them. This was never done. On 
 30th March, 1853, a resolution was passed requesting the 
 Lieutenant-Governor to appoint a commission of suitable 
 persons to prepare a bill for the abolition of the Court of 
 Chancery. The Act was founded on that report to which I 
 have above referred, and which with the letter of the Master 
 of the Eolls will be found published in extenso in a pamphlet 
 embracing all the papers on the history of this Court in Nova 
 Scotia. 
 
96 History of the Court of Chancery in Nova Scotia. 
 
 Now, apart from the action of the House of Assemhly 
 which I have briefly summarized, it is plain to those who read 
 the speeches and newspapers of the day that other motives 
 contributed to the result. Stewart was a man of strong and 
 independent character, and in the course of his political 
 career had aroused the bitter enmity of his opponents, and 
 had also incurred the ill-will of some of his former colleagues. 
 Among them were the most prominent lawyers of the time 
 on both sides of politics. In striking a blow at the Court, 
 they were striking a blow at him, and to some extent at 
 least it would seem that the Court owed its extinction to the 
 dislike felt towards the head of it. This offers the best 
 explanation of the unanimity with which all parties acted. 
 Whether on the whole a mistake was committed in abolish,- 
 ing the Court of Chancery or not, is fairly open to argument. 
 Looking at the question in the light of experience, I come 
 to the conclusion that the administration of law and equity 
 by one tribunal is best, and most conducive to the interests 
 of suitors, and in so far as that was the object of the Legis- 
 lature it M'as wise. This object, however, was not accom- 
 plished except in name, for our legislators of that day had 
 not grasped the basis on which the fusion of law and equity 
 could be brought about. Indeed, it was not successfully 
 accomplished in England for many years after, and then 
 only after most patient and searching investigation by the 
 greatest legal minds in the country. What it did eif ect was 
 a serious muddle in the administration of justice, and its 
 result was most injurious in its efliects on the legal profes- 
 sion. It is easy to destroy an old existing institution, but 
 it takes time and men of genius, knowledge, and experience 
 to reconstruct. The best evidence of the mistake then com- 
 mitted was that in the very short period of eight years the 
 Legislature found it necessary in the public interests to 
 re-establish the same Court under another name — the Court 
 of Equity — to the Judge of which all equitable business was 
 again exclusively assigned. Great injury was brought upon 
 the legal profession by the abolition of the Court of Chan- 
 cery, in leading to the neglect of the study of equity juris- 
 
History of the Court of Chancery in Nova Scotia. 97 
 
 prudence. The lawyers of the siicceeding generation, and 
 until the Judicature Act was adopted in this Province, devoted 
 their energies almost entirely to the common law; not realiz- 
 ing the necessity, they rarely acquired any thorough know- 
 ledge of equity principles and procedure. Equity as adminis- 
 tered in the Court of law — at least up to the time the late 
 Mr. Justice Eitchie became Equity Judge — was not remark- 
 able for its depth and learning and adherence to sound 
 principles, and there was little encouragement to pursue it. 
 
 Happily, this defect in our Provincial bar has been re- 
 moved, and we have able and experienced equity lawyers 
 practising in our Courts, capable of holding a first place in 
 any Court in the British dominions. The rising generation 
 of lawyers are now taught and imbued with a general know- 
 ledge of equity jurisprudence without which it would now 
 be impossible to follow their profession. 
 
 Although not immediately bearing on my subject, it may 
 be interesting in conclusion to state that by chap. 10 of the 
 Acts of 1864, the Court of Chancery under the name of the 
 Court of Equity was re-established, using the procedure of the 
 Supreme Court as far as applicable, but it was found neces- 
 sary largely to amend this to adapt it to equitable proceed- 
 ings. That distinguished lawyer and legislator, the Hon. 
 James W. Johnston, was appointed to the office of Equity 
 Judge, and at his death he was succeeded by the eminent 
 and well-known Judge, John W. Eitchie. On his death 
 he was succeeded by Alexander James, who was then a 
 Judge of the Supreme Court. During his time the Equity 
 Court as a distinct tribunal was again abolished in 1884, 
 when the Judicature Act came into operation. The fusion 
 of law and equity was then in reality accomplished, and both 
 are now administered by all the Judges of the Supreme 
 Court. The title is still retained by Mr. Justice Q-raham, 
 who, as such, has jurisdiction in the Court of Marriage and 
 Divorce, but in other respects his position is the same as the 
 other Judges. 
 
 This completes the history of three of our principal 
 Courts of Judicature, that is to say, the Supreme Court, the 
 
98 History of the Court of Cliancery in Nova Scotia. 
 
 Inferior Court of Common Pleas, and the Court of Chancery. 
 There remains to be written the history of the Court of Vice- 
 Admiralty — which from all I have observed will form a very 
 interesting chapter in our judicial annals — the Court of 
 Probate, the Court of Marriage and Divorce, the Court of 
 Error and Appeal, and the Court of Escheats. My object in 
 placing the history of these tribunals before the public has 
 been to rescue from oblivion many interesting and important 
 facts, scattered around in our Court and Provincial records, 
 not easily, or at least not readily, attainable by those desiring 
 to know something about them. It has always appeared to 
 me that at least members of the legal profession should pos- 
 sess this knowledge, and that it should not be altogether un- 
 interesting to the general piiblic. 
 
 The particiilars I have given, it is to be understood, are 
 by no means exhaustive of the subject, and for those who 
 desire more extended information I would refer them to the 
 Chancery and Provincial records from which I have gathered 
 these fragments. 
 
E. J. MARSHALL