ARGUED AND DETERMINED IN THE SUPREME COURT OF CANADA. JUNE SESSIONS, 1876. FRANCIS KELLY, COMMISSIONER OF AND APPELLANT. CHARLOTTE ANTONIA SULIVAN, - RESPONDENT. ON APPEAL FROM THE SUPREME COURT OF JUDICATURE OF PRINCE EDWARD ISLAND. Jurisdiction of Supreme Court of Canada.-Court of last resort in P. E. Island.-Jurisdiction of Court to set aside award.—Remedy by remitting back award. Held, That the Court of last resort in Prince Edward Island, from whose judgment an appeal lies direct to the Supreme Court of Canada, is the Supreme Court of Judicature in that Province. Held, also, That by Statute of P. E. I., known as "The Land Purchase Act, 1875," an award of the Commissioners cannot be quashed and set aside and declared invalid and void on application made to the Supreme Court of P. E. I., but can be remitted back to the Commissioners in the manner prescribed by the 45th section of the Act. In the matter of the application of Francis Kelly, Commissioner of Public Lands, for the purchase of the estate of Charlotte Antonia Sulivan, and the Prince Edward Island Land Purchase Act, 1875. Appeal by the Commissioner of Public Lands of Prince Edward Island. Prince Edward Island, long ago granted in large blocks of about 20,000 acres each, was, as time went PRESENT: The Chief Justice, and Ritchie, Strong, Taschereau, and Fournier, J. J. Henry, J., during the Sessions, was absent from indisposition. Kelly vs. Sulivan. on, let by the grantees in small parcels, generally for long terms of years, reserving an acreable rent of about one shilling. Out of these terms sprung an agitation which, under various names, occasioned much discord in the Colony, and, in 1862, an Act of Assembly was passed, under the provisions of which a portion of the Island was purchased by the Government from its owners. But a considerable portion remaining in the hands of others who declined to sell, the Land Purchase Act of 1875 was passed. Under its authority a tribunal called the Commissioners Court was organized, and it is out of proceedings instituted in that Court for the purchase of the township lands of Miss Sulivan, the present questions arise. The nature of the questions decided, and the manner in which they arose, are fully set forth in the Judgments given by their Lordships. 8th, 9th, and 10th June, 1876. Mr. Brecken, Q.C., Attorney-General, Prince Edward Island, Mr. Cockburn, Q.C., and Mr. L. H. Davies, for Appellant: 1st, As to the jurisdiction of this Court :-The power of the Governor in Council to sit as a Court was given by royal instructions previous to Lord Monck's appointment. In subsequent instructions there are clauses which expressly revoke the power given to the Governor. If this Court exists in Prince Edward Island, it also exists for Nova Scotia, and the practice there shows that the appeal to the Privy Council lies direct from the Supreme Court (1). The Act 36 Vic. c. 22, 1878, Prince Edward Island, is copied from the English (1) McPherson, P. C. Pract. pp. 92, 93. Kelly vs. Sulivan. Procedure Act, and reference is made to a Court of Error and Appeal because it was intended to provide for a Court of Error and Appeal under the British North America Act, it being only two months previous to Confederation that this Act was passed. Since Confederation the Lieutenant-Governor is appointed by the Dominion Government, and he is not given any judicial functions. See Commission to Lieutenant-Governor Patterson, and Royal Instructions to Lieutenant-Governors since 1854. 2nd, As to the finality of the award :-The Act only required that the Commissioners should find in their award, the sum or amount due to the Proprietor for his Estate. Section 28 of the Act, with sub-sections a, b, c, d, e, is merely directory, and as stated in sub-section e "the number of acres, the reasonable probabilities and expenses of the proprietor," are only elements to be taken into consideration by the Commissioners in estimating the value of the lands. The object of the Act is to pay every proprietor a fair indemnity or equivalent for the value of his interest and no more. (1) It is the amount of money to be paid they are to ascertain and find; not any collateral facts. It must first affirmatively appear that there was an omission on the part of the Commissioners; to set aside an award there must either be manifest fraud, or excess of jurisdiction, or some material matter that has not been taken into consideration. There could not have been any fraud, when the evidence given and accepted was that of the agent of the respondent. The case of Whithworth v. Hulse, (2) is not in point because it does not appear in this case that any of the subsections were not considered. On the contrary, all Respondent's estate was adjudicated upon. (1) See Sec. 27; (2) L. R. 1 Exch. 251. Kelly vs. Sulivan. In support of this branch of the argument were cited : Duke of Beaufort, v. Swansea Harbor Trustees (1); In re Byles (2); Mays v. Cannel (3); Queen v. Lond. and N. W. R. Co. (4); Wrightson v. Bywater (5); Harrison v. Creswick, (6); Russell on Awards (7). 3rd. As to the uncertainty of the award :-All Respondent's estate was adjudicated upon; the Trustee's act was simply ministerial. The Commissioner of Public Lands under the 2nd Section of the Act, notified Miss Sulivan of the intention of the Government to purchase "all her Township lands in the Island, liable to the provisions of the Land Purchase Act." The Commissioners had no power to embrace any lands not part of her estate, or exclude any which were part of it. It was decided lately in the Island that the mere notice given under the Act, brought all the lands of a proprietor under the provisions of the Land Purchase Act, and, therefore, the Commissioners had to estimate only the sum they should award, and their powers were not discretionary as to the lands. There could be no necessity for describing the lands by metes and bounds. The describing of the land is purely a ministerial act. No description they might insert could alter or change the lands really affected, and bound by the award. A prima facie uncertainty in an award does not vitiate it, if capable of being rendered certain. The "Estate " and the lands in this case are capable of being ascertained with accuracy. The following cases cited :---Round v. Hatton (8). Willoughby v. Willoughby (9). (1) 8 C. B. N. S. 146; (2) 25 L. J. Ex. p. 53; (3) 24 L. J., C. P., 41; (4) 23 L. J., Q. B., 185; (5) 3 M. and W., 199; (6) 13 C. B., 399 (7) 2nd Ed. p.p. 266, 267, 258, 262; (8) 10 M. & W., 660; (9) 12 L. J. (N.S.) Q. B. 281. Kelly vs. Sulivan. Mays v. Cannel (1); Taylor v. Clemson (2); Ostler v. Cooke (3); Wilcox v. Wilcox (4); The Duke of Beaufort v. Swansea Harbour Trustees (5); Aitcheson v. Cargey, in error (6). On delegation of authority to Public Trustee. Russell on Awards (7). Reference made also to: In re Montgomery and Moore (8); Duquet v. Greene (9); Corporation of the United Counties of Northumberland and Durham v. Town of Cobourg (10); Hibbert v. Scott (11); Thorpe v. Cole (12). The Court had no jurisdiction to declare the award bad (see sec. 45 of Land Purchase Act); but had ample power to remit the award back to the Commissioners, to correct any error, informality or omission, provided application made within thirty days after rendering the award. This remedy was treated with silent contempt. The arbitrator's jurisdiction appears on the face of the award. Presumptions will not be made against the award, but rather in its favor. They referred to In re The South Wales Railway Company v. Richards (13); Faviell v. Eastern Counties Railway Company (14); Colonial Bank of Australasia v. Willan (15); Thorpe v. Cole (16). Mr. M. C. Cameron, Q.C., and Mr. E. T. Hodgson, for the Respondent: 1st. No appeal lies direct from the Supreme Court of Prince Edward Island to the Supreme Court of Canada. Sections 11 and 17 of the Supreme Court Act declare that all appeals to the Supreme Court must be from the Court of last resort in any Province. In Prince Edward (1) 24 L. J. C. P., 41; (2) Q. B., 978; (3) 22 L. J. (N.S.) Q. B., 71; (4) 4 Eych. 500; (5) 29 L. J., C. P., 241; S. C., 8 C. B. N. S. 146; (6) 9 Moore, 381; (7) Ed. 1856, p. 281; (8) 2 U. C. P. R., 98 ; (9) 4 U. C. R., O. S., 110; (10) 20 U. C. R. 283; (11) 24 U. C. R., 581; (12) 2 C. M. & R. 367; S. C. 4 Dowl, 457; (13) 18 L. J. Q. B., 310; (14) 17 L. J. Ex., 223; (15) L. R., 5 P. C., 417; (16) 2 C. M. & R., 367. |