532:
259:) for the rest of his life. He held a variety of government positions, as well as some business ventures, including offering loans. He was said to be "almost parsimonious". He owned a small house near Bay Street and Wellington Street. In 1850, he hired a new housekeeper, Bridget O'Reilly, who was described by Mercer's biographer as "violent-tempered, illiterate, and thieving". She remained his housekeeper until the end of his life. In 1851, she gave birth to a boy, commonly believed to be Mercer's son, who was christened Andrew Francis Mercer. Mercer provided support for the boy as he grew up and gave him a plot of land, but never included him in a will. Mercer was reputed to have said that he "would leave his money to the government."
31:
460:
484:
604:, or was it one of the types of property reserved to the provinces by s. 109 of the act? He noted that s. 102 stated that the revenues transferred to the federal government did not include revenues that the Act "reserved to the respective Legislatures of the Provinces". He concluded that phrase referred to the "lands, mines, minerals, and royalties" held by the provinces under s. 109 of the Act. Finally, he held that the escheat of land was one of the "royalties" included in s. 109. The escheat in land therefore belonged to Ontario, as held by the Ontario courts.
508:
540:
472:
496:
548:
316:
408:). McDougall, counsel for Andrew Francis Mercer, advised the Court that his client favoured the federal government because he understood that the federal government would likely transfer all of the property to him if the courts ruled that escheats were federal, under a pre-Confederation policy that the federal government would respect.
597:, he reviewed the historical origins of the doctrine of escheat, as an aspect of feudal tenure and the position of the Crown as the ultimate lord of the property. If there was a complete failure of the tenant's line, the land escheats, or returns to the Crown. The income from an escheat was one of the casual revenues of the Crown.
284:. In 1875, Bridget O'Reilly and Andrew Francis Mercer claimed as Mercer's heirs, with O'Reilly suddenly producing a marriage certificate dated one month before Andrew Francis's birth, and an apparent will, leaving the entire estate to the two of them. Attorney General Mowat contested the validity of the will.
524:
615:
Much of the estate was spent on the legal costs. Following the decision, Mowat agreed to give Andrew
Francis Mercer $ 30,000 from the proceeds of the estate, but most of that went to cover his legal expenses. The government used $ 10,000 of the proceeds to set up the Andrew Mercer Eye and Ear
453:. Section 109 provides that the provinces continued to hold "All Lands, Mines, Minerals, and Royalties" belonging to the provinces before Confederation, which would include the Crown’s right of escheat in land. They would have upheld the constitutionality of the provincial statute.
434:
which assigned revenues to the federal government. As well, they questioned whether the provinces could benefit from the royal prerogative of escheats, since they considered the Crown was represented by the federal government, and not by the provinces.
198:
The issue in the case arose from the death of an individual, Andrew Mercer, without a will and without any heirs recognised by law. At common law, if an individual dies without heirs, the property in the estate vests in the Crown, called an
351:
joined in the appeal, arguing that escheats of land were within federal jurisdiction, not provincial, and therefore the land should escheat to the federal government. Attorney
General Mowat opposed the appeal. The
616:
Infirmary at the
Toronto General Hospital. Another amount, $ 106,000, was used to set up the Andrew Mercer Ontario Reformatory for Females. The Reformatory opened in 1880 and continued in operation until 1969.
335:
was unconstitutional because escheats were a matter of federal law, not provincial. Now sitting on the escheats issue, Vice-Chancellor Blake rejected that application. Andrew
Francis Mercer appealed to the
955:
447:
244:, the newly appointed Attorney General of Upper Canada. Mercer once stated that his mother was unmarried, and there was speculation that Mercer was Scott's illegitimate son. Upon arriving at
272:
Mercer died in 1871, leaving an estate valued in the neighbourhood of $ 180,000, made up of stocks, land, mortgages and other loans owing to him. Since there did not appear to be a will, the
323:
After the probate decision, Attorney
General Mowat began proceedings in the Court of Chancery to claim the lands in Mercer's estate, asserting that since he had died
631:
348:
914:
Decisions of the
Judicial Committee of the Privy Council relating to the British North America Act, 1867 and the Canadian Constitution, 1867–1954
626:
This case is included in the three volume set of significant decisions of the
Judicial Committee on the construction and interpretation of the
295:. However, Andrew Francis Mercer declined to testify on his own behalf. Attorney General Mowat's lawyer was a leading barrister in Toronto,
567:, one from Canada and one from England. The federal government, handling the appeal on behalf of Andrew F. Mercer, was represented by the
459:
228:, QC, then appealed to the Judicial Committee, which held that the right of escheat fell to the provinces, not to the federal government.
507:
945:
642:
prepare the collection "for the convenience of the Bench and Bar in Canada". This case was included in the first volume of the set.
471:
428:
364:
427:) agreed that the right of escheat is one of the royal prerogatives and a form of revenue. It therefore was a federal matter under
411:
The
Supreme Court allowed the appeal by a majority of four judges, with two dissenting. The four judges in the majority (Justices
347:. The dispute was now seen as a major case in relation to the powers of the federal government and the provincial governments. The
607:
As was the practice of the
Judicial Committee at that time, there were no dissenting reasons from other members of the committee.
568:
556:
379:, formerly federal Attorney General, and brother of Vice-Chancellor Blake, whose decision was under appeal. Blake was joined by
188:
44:
353:
203:". Both the federal government and the provincial government claimed the property, each relying on different sections of the
483:
950:
586:
572:
220:. The Ontario courts ruled in favour of the province, and the Supreme Court ruled in favour of the federal government. The
119:
600:
He then turned to the major issue: was an escheat part of the revenues assigned to the federal government by s. 102 of the
371:
and former federal
Cabinet minister, argued for Andrew Francis Mercer. The Attorney General for Ontario was represented by
303:, and sentenced him to death, although the sentence was later commuted. The probate case came on before Vice-Chancellor
144:
134:
960:
580:
495:
281:
531:
300:
292:
639:
241:
575:. Zebulon Lash, now in private practice, also appeared for the federal government, although Prime Minister
376:
337:
331:
to the province of Ontario. Andrew Francis Mercer contested the application, arguing that the provincial
273:
221:
184:
446:, took the view that escheats were part of property in land, and therefore assigned to the provinces by
380:
638:, QC. Following the abolition of Canadian appeals to the Judicial Committee, Garson directed that the
420:
898:
816:
802:
734:
717:
703:
560:
443:
439:
390:
All counsel made extensive arguments, ranging over the feudal origins of property under English law,
88:
384:
416:
368:
344:
217:
101:
30:
687:
424:
404:
395:
296:
209:
887:
The Judicial Committee of the Privy Council 1833–1876: Its Origins, Structure and Development
412:
752:
139:
129:
593:, gave the decision of the Judicial Committee in favour of Ontario's appeal. An expert in
8:
876:, 5th ed., supplemented (Toronto: Thomson Reuters, looseleaf current to 2023), para. 8:2.
858:
844:
830:
72:
769:
670:
527:
The Earl of Selborne, Lord Chancellor of England, who gave judgment in favour of Ontario
359:
All of the parties were represented by senior counsel. The Deputy Minister of Justice,
786:
360:
543:
Farrer Herschell, Solicitor General for England and counsel for the federal government
287:
O'Reilly and Andrew Francis Mercer called as witnesses the Roman Catholic archbishop,
576:
391:
304:
288:
236:
Andrew Mercer was born in England, likely around 1780. He emigrated from England to
280:, was appointed as administrator of the estate and began probate proceedings in the
564:
590:
539:
916:, vol. 1 (Ottawa: Queen's Printer and Controller of Stationery, 1954), p. iii.
192:
124:
939:
635:
319:
Oliver Mowat, Attorney General for Ontario, who began the escheat proceedings
307:, who ruled that the marriage certificate and the will were both forgeries.
594:
394:, the constitutional history of the British North American provinces up to
372:
277:
237:
225:
398:, and the powers of the federal and provincial governments under the
324:
299:, who had earlier convicted Montgomery of treason in relation to the
523:
956:
Judicial Committee of the Privy Council cases on appeal from Canada
776:, vol. XIII (1901–1910), University of Toronto / Université Laval.
759:, vol. XIV (1911–1920), University of Toronto / Université Laval.
328:
256:
252:
200:
35:
Andrew Mercer's cottage, near Bay and Wellington Streets, Toronto
793:, vol. 14 (1911–1920), University of Toronto / Université Laval.
216:
The dispute was litigated in the courts of Ontario and then the
694:, vol. X (1971–1880), University of Toronto / Université Laval.
677:, Vol. X (1871–1880), University of Toronto / Université Laval.
547:
356:
intervened in the case, in support of provincial jurisdiction.
315:
559:. Mowat appeared personally to argue the appeal, along with
889:(Cambridge: Cambridge University Press, 1979), pp. 221–222.
623:
several times since it was decided, most recently in 2002.
245:
191:
in 1883, at that time the highest court of appeal in the
927:
Decisions of the Judicial Committee of the Privy Council
551:
Francis Jeune, junior counsel for the federal government
477:
William McDougall, QC, counsel for Andrew Francis Mercer
363:, QC, argued the case for the federal government, while
248:, Upper Canada, Scott retained Mercer as his secretary.
583:
appeared as junior counsel for the federal government.
375:, QC, one of the leading Ontario barristers, formerly
518:
383:, QC, of his firm. The Attorney General of Quebec,
563:, QC, a leading member of the English bar, and two
513:
Louis-Onézime Loranger, Attorney General for Quebec
465:
Zebulon Lash, QC, Deputy Attorney General of Canada
262:
937:
610:
172:Constitutional law, Crown prerogatives, escheat
55:Attorney General of Ontario v Andrew F. Mercer
835:, UKPC 42, 8 AC 767 (PC), pp. 768, 770 (AC).
387:, personally argued the position of Quebec.
501:James Bethune, QC, also counsel for Ontario
343:Andrew Francis Mercer then appealed to the
29:
730:
728:
438:The two dissenting judges, Chief Justice
906:
900:Bank of Montreal v. Dynex Petroleum Ltd.
632:Minister of Justice and Attorney General
630:, prepared on the direction of the then
546:
538:
530:
522:
314:
555:Attorney General Mowat appealed to the
189:Judicial Committee of the Privy Council
45:Judicial Committee of the Privy Council
16:Canadian constitutional law case – 1883
938:
747:
745:
725:
705:Mercer v. Attorney General for Ontario
327:and without any known heirs, the land
310:
291:, and also a well-known local figure,
90:Mercer v. Attorney General for Ontario
818:Mercer v Attorney General for Ontario
804:Mercer v Attorney General for Ontario
736:Mercer v Attorney General for Ontario
719:Mercer v Attorney General for Ontario
665:
663:
661:
659:
657:
655:
489:Edward Blake, QC, counsel for Ontario
120:The Earl of Selborne, Lord Chancellor
860:Attorney General of Ontario v Mercer
846:Attorney General of Ontario v Mercer
832:Attorney General of Ontario v Mercer
621:Attorney General of Ontario v Mercer
579:did not consider him "heavy metal".
231:
180:Attorney General of Ontario v Mercer
24:Attorney General of Ontario v Mercer
785:Ben Forster and Jonathan Swainger,
742:
13:
652:
519:Decision of the Judicial Committee
14:
972:
535:Horace Davey, counsel for Ontario
946:Canadian constitutional case law
912:Richard A. Olmsted, Q.C. (ed.),
791:Dictionary of Canadian Biography
774:Dictionary of Canadian Biography
757:Dictionary of Canadian Biography
692:Dictionary of Canadian Biography
675:Dictionary of Canadian Biography
506:
494:
482:
470:
458:
263:Decisions of the Canadian courts
919:
892:
879:
866:
852:
838:
824:
810:
400:British North America Act, 1867
205:British North America Act, 1867
796:
779:
762:
722:, pp. 540, 544, 573, 584, 593.
711:
708:, (1881) 5 SCR 538, at p. 539.
697:
680:
340:, which dismissed the appeal.
1:
645:
569:Solicitor General for England
951:Canadian federalism case law
874:Constitutional Law of Canada
872:Peter Hogg and Wade Wright,
619:The Supreme Court has cited
611:Significance of the decision
251:Mercer lived in York (later
7:
274:Attorney General of Ontario
222:Attorney General of Ontario
185:Canadian constitutional law
10:
977:
354:Attorney General of Quebec
349:Attorney General of Canada
267:
961:1883 in Canadian case law
903:, 2002 SCC 7, 1 SCR 146.
282:Ontario Court of Chancery
171:
166:
158:
153:
112:
107:
97:
84:
79:
68:
60:
50:
40:
28:
23:
669:Frederick H. Armstrong,
369:Father of Confederation
345:Supreme Court of Canada
338:Ontario Court of Appeal
218:Supreme Court of Canada
102:Supreme Court of Canada
636:Stuart Sinclair Garson
628:Constitution Act, 1867
602:Constitution Act, 1867
552:
544:
536:
528:
450:Constitution Act, 1867
431:Constitution Act, 1867
405:Constitution Act, 1867
385:Louis-Onésime Loranger
320:
297:John Beverley Robinson
240:in 1800, accompanying
210:Constitution Act, 1867
753:"Lash, Zebulon Aiton"
640:Department of Justice
550:
542:
534:
526:
318:
135:Sir Robert P. Collier
770:"McDougall, William"
751:Theodore D. Regehr,
573:Farrer Herschell, QC
195:, including Canada.
863:, pp. 775–779 (AC).
849:, pp. 771–774 (AC).
311:Escheat proceedings
162:The Lord Chancellor
145:Sir Arthur Hobhouse
688:"Montgomery, John"
686:Edwin C. Guillet,
557:Judicial Committee
553:
545:
537:
529:
402:(now known as the
392:Crown prerogatives
377:Premier of Ontario
361:Zebulon Aiton Lash
321:
207:(now known as the
130:Sir Montague Smith
125:Sir Barnes Peacock
93:, (1881) 5 SCR 538
929:, vol. 1, p. 171.
577:John A. Macdonald
365:William McDougall
232:Facts of the case
176:
175:
140:Sir Richard Couch
968:
930:
923:
917:
910:
904:
896:
890:
883:
877:
870:
864:
856:
850:
842:
836:
828:
822:
814:
808:
800:
794:
783:
777:
768:Suzanne Zeller,
766:
760:
749:
740:
732:
723:
715:
709:
701:
695:
684:
678:
671:"Mercer, Andrew"
667:
510:
498:
486:
474:
462:
187:decision of the
108:Court membership
33:
21:
20:
976:
975:
971:
970:
969:
967:
966:
965:
936:
935:
934:
933:
924:
920:
911:
907:
897:
893:
884:
880:
871:
867:
857:
853:
843:
839:
829:
825:
815:
811:
801:
797:
787:"Blake, Edward"
784:
780:
767:
763:
750:
743:
733:
726:
716:
712:
702:
698:
685:
681:
668:
653:
648:
613:
591:Lord Chancellor
521:
514:
511:
502:
499:
490:
487:
478:
475:
466:
463:
313:
293:John Montgomery
270:
265:
234:
149:
75:, 8 App Cas 767
36:
17:
12:
11:
5:
974:
964:
963:
958:
953:
948:
932:
931:
918:
905:
891:
878:
865:
851:
837:
823:
821:, pp. 623–648.
809:
807:, pp. 648–712.
795:
778:
761:
741:
739:, pp. 540–623.
724:
710:
696:
679:
650:
649:
647:
644:
612:
609:
587:Lord Selbourne
565:junior counsel
520:
517:
516:
515:
512:
505:
503:
500:
493:
491:
488:
481:
479:
476:
469:
467:
464:
457:
448:s. 109 of the
429:s. 102 of the
312:
309:
301:1837 Rebellion
269:
266:
264:
261:
233:
230:
193:British Empire
174:
173:
169:
168:
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163:
160:
156:
155:
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147:
142:
137:
132:
127:
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113:Judges sitting
110:
109:
105:
104:
99:
95:
94:
86:
82:
81:
77:
76:
70:
66:
65:
62:
58:
57:
52:
51:Full case name
48:
47:
42:
38:
37:
34:
26:
25:
15:
9:
6:
4:
3:
2:
973:
962:
959:
957:
954:
952:
949:
947:
944:
943:
941:
928:
922:
915:
909:
902:
901:
895:
888:
885:P.A. Howell,
882:
875:
869:
862:
861:
855:
848:
847:
841:
834:
833:
827:
820:
819:
813:
806:
805:
799:
792:
788:
782:
775:
771:
765:
758:
754:
748:
746:
738:
737:
731:
729:
721:
720:
714:
707:
706:
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693:
689:
683:
676:
672:
666:
664:
662:
660:
658:
656:
651:
643:
641:
637:
633:
629:
624:
622:
617:
608:
605:
603:
598:
596:
592:
588:
584:
582:
581:Francis Jeune
578:
574:
570:
566:
562:
558:
549:
541:
533:
525:
509:
504:
497:
492:
485:
480:
473:
468:
461:
456:
455:
454:
452:
451:
445:
441:
436:
433:
432:
426:
422:
418:
414:
409:
407:
406:
401:
397:
396:Confederation
393:
388:
386:
382:
381:James Bethune
378:
374:
370:
366:
362:
357:
355:
350:
346:
341:
339:
334:
330:
326:
317:
308:
306:
302:
298:
294:
290:
285:
283:
279:
275:
260:
258:
254:
249:
247:
243:
239:
229:
227:
223:
219:
214:
212:
211:
206:
202:
196:
194:
190:
186:
182:
181:
170:
165:
161:
157:
154:Case opinions
152:
146:
143:
141:
138:
136:
133:
131:
128:
126:
123:
121:
118:
117:
115:
111:
106:
103:
100:
98:Appealed from
96:
92:
91:
87:
85:Prior actions
83:
78:
74:
71:
67:
64:July 18, 1883
63:
59:
56:
53:
49:
46:
43:
39:
32:
27:
22:
19:
926:
921:
913:
908:
899:
894:
886:
881:
873:
868:
859:
854:
845:
840:
831:
826:
817:
812:
803:
798:
790:
781:
773:
764:
756:
735:
718:
713:
704:
699:
691:
682:
674:
627:
625:
620:
618:
614:
606:
601:
599:
585:
561:Horace Davey
554:
449:
442:and Justice
437:
430:
410:
403:
399:
389:
373:Edward Blake
358:
342:
333:Escheats Act
332:
322:
305:Samuel Blake
286:
278:Oliver Mowat
271:
250:
242:Thomas Scott
238:Upper Canada
235:
226:Oliver Mowat
215:
208:
204:
197:
179:
178:
177:
89:
80:Case history
54:
18:
159:Decision by
940:Categories
646:References
595:equity law
421:Taschereau
289:John Lynch
925:Olmsted,
329:escheated
325:intestate
69:Citations
413:Fournier
367:, QC, a
167:Keywords
440:Ritchie
268:Probate
257:Ontario
253:Toronto
201:escheat
73:UKPC 42
61:Decided
589:, the
444:Strong
425:Gwynne
417:Henry
183:is a
41:Court
423:and
246:York
213:).
942::
789:,
772:,
755:,
744:^
727:^
690:,
673:,
654:^
634:,
571:,
419:,
415:,
276:,
255:,
224:,
199:"
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