CHAPTER I. The Statutes. The Court of Chancery for Upper Canada, as at present constituted, owes its existence to, and is governed by, the following mentioned Enactments of the Provincial Legislature. The first Establishment of the Court was by an Act of the Parliament of Upper Canada,—7th Wm. 4, ch. 2, dated the 4th March, 1837. Court established. Statute of 1837. Judge. This Act created a Court, to be called "The Court of A Vice ChanChancery for the Province of Upper Canada", of which cellor to be the Court the Governor of the Province was to be Chancellor, but the Judicial powers of the Court, "both Legal and Equitable", were to be exercised by the Vice Chancellor. England. Sec. 2, enacts, that the Court shall have Jurisdiction, Same powers and "possess the like powers and authority as by the as the Court in laws of England are possessed by the Court of Chancery in England" in respect of the following matters :— 1. "In all cases of Fraud; 2. "In all matters relating to Trusts; 3. "In all matters relating to Executors; and 4. "Administrators; 5. "In all matters relating to Mortgages; 6. "In Dower. 7. "In all matters relating to Infants, Idiots, and Lunatics, and their Estates, except where special provision hath been or may hereafter be made with respect to them or either of them by any law of this Province; Matters over which the Court has Jurisdiction. Not to super and Devisee 8. "In all matters relating to Awards ; 9. "To compel the specific performance of Agree ments; 10. "To compel the discovery of concealed Papers or Evidence, or such as may be wrongfully withheld from the party obtaining the benefit of the same; 11. "To prevent multiplicity of Suits and to stay proceedings in a Court of Law prosecuted against Equity and good conscience; 12. "To institute proceedings for the repeal of Letters Patent erroneously or improvidently issued ; 13. "To stay Waste; 14. "In all cases of Accident; 15. "In all cases of Account; 16. "In all cases relating to Co-partnership." With a proviso, that nothing in the Act should extend sede the Heir to supersede the authority of the Heir and Devisee ComCommission. missioners. The powers of these Commissioners are now defined by the Act of 8 Vic. Ch. 8, dated 10th February, 1845. The claims adjudicated upon by them are those of any party" claiming any lands within Upper Canada, for which no patent hath issued, as being the Heir, Devisee, or Assignee of the original Nominee of the Crown, or as having derived a title or claim to such lands from or through any such Heir, Devisee or Assignee." Vide 8 Vic. Infants. 8 Geo. 4 Ch. 6. When Under the above Clause (7) with respect to Infants the jurisdiction of the Court is confined to cases which do not fall within the "Act respecting the appointment of Guardian Act, Guardians," being the 8th Geo. IV. Ch. 6, dated 17th February, 1827. Revised Statutes, page 465. the case comes within that Act, the application for the appointment of a Guardian must be to the Probate or Surrogate Court, and not to the Court of Chancery. It how appointed. would undoubtedly be more convenient, had the Court of Guardian, Chancery a concurrent jurisdiction. In cases where the Estate of an Infant, whose father is not living, and who has no legal Guardian, is in Chancery, although that Court has full power over the Estate, it does not seem, under the exception above mentioned, to have power to appoint a Guardian of the person. Such a jurisdiction has been exercised by this Court, it is true, prior to the Act of 12th Vic. Ch. 64; but it was only in Exparte Cases, and an application of the kind would, it is believed, now meet with a refusal; for the Court would feel bound by the expressed exception, however convenient and useful to all parties the exercise of the jurisdiction might be. Estates of In An important jurisdiction is given to the Court in the Partition of the case of Infants by the Act of 12th Vic. Ch. 72, dated fants under 12, 30th May 1849. The first Section enacts, "That any Vic. Ch. 72. Infant seized or possessed of, or entitled to any Real Estate in fee, for a term of years, or otherwise howsoever, in Upper Canada, may by his or her next friend, or by his or her Guardian, apply to the Court of Chancery in and for Upper Canada for the sale or other disposition of such property, or a competent part thereof, in manner and for any of the purposes hereinafter directed." The "purposes" are, the support, maintenance and education. of the Infant; and the Court must be satisfied that the advantage of the Infant is consulted. If over seven years of age, the Infant must be a consenting party. The disposition of the proceeds is controlled by the Court and see 2 W. 4, ch. 35, sec. 9, as to partition of Infant's Estates. Lunacy Cases. The practice in Lunacy Cases is regulated by 9th Vic. Ch. 10, dated May 18th, 1846. The jurisdiction in respect to the Repeal of Letters Patent is extended by the 29th Section of 4 and 5 Victoria, (1842), Chap. 100, which enacts "That it shall and may be lawful for the Court of Chancery in that part of this Province formerly called Upper Canada, and for the Court of King's Bench in that part of this Province formerly called Lower Canada, upon Action, Bill or Plaint, to be exhibited in either of the said Courts, respecting grants of Land situate in the said Parts of this Province respectively, and upon hearing of the parties interested, or upon default of the said parties, after such notice of proceedings as the said Court shall respectively order, in all cases wherein Patents for Lands have or Repeal of Patents. Court remodelled. shall have issued through fraud, or in error, or mistake, to decree the same to be void; and upon the Registry of such Decree in the Office of the Provincial Registry of this Province, such Patents shall be deemed void, and of none effect to all intents and purposes whatsoever, and that the practice and proceeding in Court in such cases shall be regulated by orders to be from time to time made and issued by the said Courts respectively." No orders of Court have been made expressly under this Act, but the proceedings are of course governed by the General Orders. The Constitution of the Court was materially altered by the 12th Vic. Ch. 64, intitled "An Act for the more effectual Administration of Justice in the Court of Chancery of the late Province of Upper Canada." Under this Act the number of Judges was increased to three, and the offices of Registrar and Master were separated. They had formerly been filled by one person. How Court The Court now consists of the Chancellor and two constituted. Vice Chancellors. There are a Master, and Master's Clerk, a Registrar, who is also Registrar of the Court of Appeals, and Registrar's Clerk, and a Reporter. The payment of Officers by fees is abolished by this Act, and the fees are funded, the Officers being paid by Salaries. The 12th Section of the Act recites the appointment the practice of the Chancery Commissioners, and that " Whereas the suggested by 12 Vic. Ch. 64." said Commissioners by the Report respectively made on "the Twentieth day of April in the Eighth year of the "Reign of Her Present Majesty, and on the Twenty Alterations in 66 fifth day of January then next ensuing, recommended "certain alterations to be made in the pleadings and prac"tice of the said Court, and, whereas it is desirable that "the suggestions of the said Commissioners in regard to "shortening the Bill and answer, and enabling the Plain"tiff to obtain discovery through the medium of a vivâ "voce examination of the Defendant, and for extending a "like privilege to the Defendant in relation to the vivâ "voce examination of the Plaintiff, should be adopted; "And,whereas it is believed that the adoption of the above "suggestion, the abolition of all unnecessary proceedings, "and enabling matters to advance uninterruptedly in "the Master's Office, will greatly tend to diminish the "costs of proceedings in the said Court, and to promote "the ends of Justice, but it is nevertheless expedient for "the purpose of more conveniently and safely carrying ❝out these and other alterations, that power should be "vested in the Judges to be appointed under this Act to "make such rules and orders respecting the pleadings "and practice of the said Court, for the purpose of "carrying out the aforesaid suggestion, as well as such "others as to them may seem expedient for the purposes " mentioned in the hereinbefore recited Commission, and "for amending or modifying any of the rules or orders " which have been or may be made for that purpose, and "for regulating the Offices of the Master and Registrar "of the said Court of Chancery, as well as for rescinding "the said rules and orders, or any of them. Be it "therefore enacted, That it shall be lawful for the Judges "to be appointed under the Act for the time being, to "make such rules and orders as to them may seem ex"pedient for regulating the Offices of the Master and "Registrar of the said Court of Chancery, and for carry"ing into effect the recommendations of the said Commis❝sioners as aforesaid, and from time to time to make other "rules and orders, amending, altering or rescinding the "same or any of them, and also to make all such rules "and orders as to them may seem meet for the purpose "of adapting the proceedings of the said Court of "Chancery to the circumstances of this Province, as "well in regard to the Process and Pleadings as in the "practice and proceedings of the said Court, and more "especially the taking, publishing, using and hearing "of testimony in any suit therein pending, or the ex"amination of all, or any of the parties to any such "suit upon their oaths viva voce or otherwise, including "also the power to regulate by rules or orders the |