CO885-(10-11) — Page 59

· 10875."

PUBLIC RECORD OFFICE

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Reference :-

C.O. 885

PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE COPYRIGHT PHOTOGRAPH-NOT TO BE REPRODUCED PHOTOGRAPHIC-

MY LORD DUKE,

No. 39.

(NEW BRUNSWICK.)

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, October 30, 1860. We are honoured with your Grace's commands, signified in Sir F. Rogers' letter of the 17th October instant, in which stated that he was directed by your Grace to request our consideration of an Act passed by the Legislature of New Brunswick, entitled 23 Vict. c. 26., No. 2,734, “An Act to authorise the appointment of Com- "missioners in the United Kingdom and other parts of Her Majesty's Dominions and "in the United States of America to take affidavits and acknowledgments of deeds " and other instruments relating to matters in this Province," which Act authorises the Lieutenant-Governor in Council to appoint commissioners to administer oaths and take affidavits in the United Kingdom and other places to be used in the courts of justice in New Brunswick.

Sir Frederic Rogers was also pleased to state that he was directed to request that we would favour your Grace with our opinion whether this provision can properly be made by an enactment of the Colonial Legislature.

In obedience to your Grace's commands we have taken these papers into our con- sideration, and have the honour to

Report

That we are of opinion that the Act in question is framed in excess of the authority possessed by the Legislature of New Brunswick,

They might well have passed an Act declaring that affidavits taken and deeds acknowledged before certain persons in Great Britain and Ireland, or the rest of the United Kingdom, should be received in the courts of justice in the Colony, and be deemed valid as if they had been duly made within the precincts of the Colony, but they had no power to enact that the Governor of New Brunswick should appoint com- missioners within the United Kingdom, who should be clothed with all the powers and authorities of the judges of the courts of Westminster Hall, the Lords of Session in Scotland, and Masters in Chancery in England and Ireland; and finally, with all the powers and authorities given to a judge of any court of justice in the United Kingdom, "or in any foreign State, or in any British Colony, by the 7th section of the 19 Vict., "intituled An Act in further amendment of the Law.""

EL

A statute so universal, taking effect per orbem terrarum, would hardly be within the power of the Imperial Parliament, but certainly very widely transcends the limits of that authority which belongs to the Legislature of New Brunswick.

We think it would be desirable to bring a Bill into Parliament next session for the purpose of enacting that all persons duly authorised to take affidavits in the United Kingdom, or the acknowledgments of deeds by married women, should be empowered to take affidavita and acknowledgments to be used in the courts of justice in any Colony, provided such affidavits and deeds be made admissible in the courts of justice of such Colony by any Act of the Colonial Legislature or other authority.

We have, &c. (Signed) RICHARD BETHELL.

WM. ATHERTON.

His Grace the Duke of Newcastle, K.G.

&c.

&c.

&c.

16278.-538.

95.-9/86.