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A House Divided 223
Jurisdictions less precocious than Upper Canada managed as best they could until
reception of the English statute of 1868, alleviating the injustice of “lop-sided”
physical partitions by the old equity device of ordering pecuniary make-up
payments, or sometimes rental arrangements, called “owelty”. Manitoba was not
in the vanguard of change. Having taken over, ready-made, the common law and
equity rules on partition, it can confidently be assumed to have “received” also the
picturesque old statutes of 1539 and 1540, whether by ancient common law
doctrine of Calvin’s Case, 27 or by force of express provincial legislation proclaiming
the validity of old English statutes passed before the province entered
Confederation. That was the case in Manitoba 28 , in Saskatchewan and in
Alberta 29 . In Alberta, indeed, the statutes of 1539 and 1540 were still the basis of
all partition jurisdiction until 1979 and remain so to this day in Saskatchewan!
And in all such provinces, we can be sure that the English Partition Act of 1868,
antedating as it did their official attainment of provincehood, was gratefully
received into the local law as soon as it had received assent in February 1868.
As it happened, Manitoba, once it achieved its own legislature, was not slow
in replacing this ramshackle state of affairs. Even though the inhabitants of the
Red River settlement do not seem to have lost much sleep or indulged in any
litigious disputation about partition or sale in those days, Manitoba introduced its
own modernized legislation on these questions which appeared as the Partition
Act, 1878. 30 Largely “borrowed” from the then current Ontario version of the
Partition Act, 31 the essentials of the 1878 Act, and much of its detailed wording,
have come down to the present day; and its lineaments are clearly discernible
under the light patina of subsequent amendments over the last 133 years. It now
appears as sections 18-26 of Manitoba’s Law of Property Act. 32 That comes about
because in 1939, the previously free-standing Partition Act of Manitoba was
subsumed under that eclectic rag-bag of a statute by the Law of Property Amendment
Act of that year. 33
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(1609), 77 ER 377, and the jurisprudence deriving from it. On reception generally, see Jean E
Côté, “The Introduction of English Law into Alberta”, (1964) 3:2 Alta LR 262; and by the same
author, “The Reception of English Law” (1977) 15 Alta LR 29.
e.g. The Queen’s Bench Act, SM 1874, c 12, s 1.
e.g. North-West Territories Act, SC 1870, c 25, s 3. These two provinces were originally part of the
North West Territories, and were parceled out from it as the Dominion expanded in population.
SM 1878 (41 Vict), c 6.
Partition and Sale Act, SO 1869, c 33.
Supra note 4.
SM 1939, c.50. Whether its absorption into this larger and more diffuse piece of legislation, and
its resultant “anonymity”, has contributed to the subsequent judicial confusion as to its function
is a good but unanswerable question.