63 30, Rule 5, the judge had jurisdiction to make the order, and the Court would not set it aside, after the commission had issued, simply because the plaintiff had not been compelled to pay the costs of the application. "According to this rule," said the Court, "McKeown, J., should either have declined to act and dismissed the application with costs, or if he made the order should have done so at the applicant's expense. As to the judge's jurisdiction to entertain the motion and make the order we entertain no doubt. Having made the order and the commission having issued we are not prepared to interfere simply because the party was not compelled to pay costs." In Windsor Lumber Company v. Rundle it was held that a judge in making an order for directions has wide discretionary powers in fixing the place of trial, and that that discretion will not be interfered with by the Courts unless under special circumstances. 14. ORIGINATING SUMMONS. 65 There is a notion that an originating summons may be taken out to settle practically any question, but in Kennedy v. Slater, where an originating summons was taken out to settle a question of the distribution of personal property, and the question involved could be disposed of in the Probate Court, it was held that the Chancery Court would not act unless there was some special reason for doing so. The following quotations from the judgment of Barker, J., who stated that he had consulted McLeod, J., who concurred in the judgment, are worthy of perusal : "Without in any way interfering with the jurisdiction of this Court as to the administration of intestate estates, the legislature has created a Probate Court for each county, whose jurisdiction has been from time to time increased, so that it can now deal with trustees' accounts and other matters quite beyond the origi 63 4 Any application subsequently to the original summons, and before judgment, for any directions as to any interlocutory matter or thing, by any party, shall be made under the summons by three clear days' notice to the other party stating the grounds of the application.' 64 40 N. B. 522. nal area of its jurisdiction. It has always been vested with the power of passing estate accounts and ordering the distribution of the surplusage of the personal property. Section 2 of ch. 161, to which I have just referred, enacts thus:- Subject to the provisions of the next following section, the surplusage of the personal estate of the intestate shall be distributed by the Judge of Probate in manner following, etc.' Section 50 of The Probate Courts Act,' ch. 118 (Con. Stat. of N. B., 1903), provides for a distribution of the surplus of the personal estate to be made after the lapse of eighteen months from the time of granting letters of administration. This can be compelled on the application of any heir or next of kin, and upon the hearing the Judge of Probate is to make a decree for the payment of the distributive share. And the bond which the administrator is obliged to give on his appointment, binds him after having his accounts of administration filed and allowed, to pay the surplus as the Probate Court or other competent Court by decree shall adjudge. There is of course the appeal to the Supreme Court as there is from actions in this division. Within a few years the Probate Courts' jurisdiction has been extended to matters relating to trustees which before that came exclusively within this Court's control. Their accounts are passed and allowed with the same effect as if allowed by this Court (sec. 58). A trustee may be removed in certain cases and a new trustee appointed in his place, and if the estate is in danger of being wasted the Judge of Probate may require additional security (sec. 73). I think this extended jurisdiction to the Probate Courts must have been intended by, the legislature to relieve this Court from the obligation to act, where there exists no special reason why the Probate Court should not act, and where considerations of convenience and expense are in favour of that course being adopted." 15. QUO WARRANTO. Ex parte Murchie 66 was a case of an application for a quo warranto made to a judge at Chambers, and it was held that the application must be made to the Court on previous notice under Order 52, Rule 1.7 16. PERVERSE VERDICT. In Amherst v. Adney,es where the jury returned a verdict contrary to the judge's charge and in favour of the defendant, the Court held that the judge could 42 N. B. 541. 67 4 Court, shall be made by motion unless otherwise provided.' a judge, such application, if made to the Court en banc or to a judge in Where an application is authorized to be made to the Court or $ 44 N. B. 7. VOL. XXXVIII. C.L.T.-26 enter a verdict for the plaintiff under Order 36, Rule 39,69 and Order 58, Rule 4. 17. SERVICE OUT OF THE JURISDICTION. 70 In framing the New Brunswick rules under the Judicature Act a new sub-clause "h" To was added to Order 11, Rule 1, and this sub-clause, which is peculiar to New Brunswick and is not found in the English or Ontario Rules, was interpreted by the Court in Roy v. St. John Lumber Company." In this case the plaintiff made a contract in New Brunswick with a resident agent of a Maine company to perform labour for the company in Maine. The breach occurred in Maine, and Barry, J., under subclause" h," made and order for service out of the jurisdiction. On an application to Barry, J., to set aside this order, he refused to do so, saying: "In order to exercise the jurisdiction which such sub-section (h) gives, two things are essential: there must be a good cause of action in respect of some matter other than the cases provided for by the preceding seven sub-sections of the rule; and, secondly, it must appear to the satisfaction of the Court or a judge that it is in the interest of justice' that the same should be tried in this jurisdiction. It is the duty of the Court to find out what these words in the interests of justice,' as used by the legislature, mean, and attach to them a rational and beneficial meaning, if possible, rather than an irrational and an injurious meaning. Some effect must be given to them. A Court of law has nothing to do with the reasonableness or unreasonableness of a provision, excepting so far as it may help them in interpreting what the legislature has said. The argument from inexpedience is not to be lightly entertained, and never for the purpose of construing a statute, The judge shall, at or after the trial, direct judgment to be entered as he shall think right, and no motion for judgment shall be necessary in order to obtain such judgment.' 70 Service may also be allowed where the action is for any other matter and it appears to the satisfaction of the Court or a judge that the plaintiff has any good cause of action against the defendant, and that it is in the interest of justice that the same should be tried in this jurisdiction; but in such case, if the defendant does not appear, the Court or a judge shall give directions from time to time as to the manner and conditions of proceedings in the action, and shall require the plaintiff, before obtaining judgment, to prove his claim before a judge or jury, or in such manner as may seem proper.' 144 N. B. 88. which is clear in its terms, and indicates, unmistakably, the purpose of the legislature. With these principles in mind, the difficulty which I have experienced in putting an interpretation upon the sub-section under discussion is to be found in the comprehensiveness or all-embracing quality of the language which the legislature has used." On appeal the Supreme Court upheld the Order on the ground that before the Judicature Act there would have been jurisdiction to make the Order, and that sub-clause "h" must be construed to include any matter not covered by the preceding clauses of the rule in which the Court had jurisdiction at the passing of the Act. An appeal to the Supreme Court of Cañada was quashed for want of jurisdiction."2 18. STATED CASES. In Re Municipality of the City and County of St. John, ,73 which was a special case under Order 34, the Court pointed out that as the parties stating the case had not availed themselves of the provisions of Rules 2 and 6, the answers given would merely serve as an explanation of the view of the Court, and that the case might not serve as a precedent binding on the Court in future cases. 74 "253 S. C. R. 310. 13 43 N. B. 374. "If it appear to the Court or a judge, that there is in any cause or matter a question of law, which it would be convenient to bave decided before any evidence is given or any question or issue of fact is tried, or before any reference is made to a Master or an arbitrator, the Court or judge may make an order accordingly, and may direct such question of law to be raised for the opinion of the Court either by special case or in such other manner as the Court or a judge may deem expedient, and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed. "The parties to a special case may, if they think fit, enter into an agreement in writing, that, on the judgment of the Court or judge being given in the affirmative or negative of the questions of law raised by the special case, certain specific relief may be awarded, or that a sum of money fixed, by the parties, or to be ascertained by the Court or judge, or in such manner as the Court or judge may direct, shall be paid by one of the parties to the other of them either with or without costs of the cause or matter; and the judgment of the Court or judge may be entered for such relief or for the sum so agreed or ascertained, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed, or unless stayed on appeal.' 19. TENDER. In McLaughlin v. Tomkins 5 the Court held that a tender under Order 22, Rule 3,76 was binding where a party holding a security absolute on its face, furnished the debtor with a statement of the amount alleged to be due, and the debtor tendered that amount, notwithstanding it afterwards appeared on taking the account between the parties that the tender was for less than the amount actually due. 20. THIRD PARTY PROCEDURE. See Canadian Pacific Railway Company v. Canadian Bank of Commerce." 21. TRIAL. In Clark v. St. Croix it was held that the question whether the case should or should not be tried by a jury under Order 36, Rule 4," is in the discretion of the trial judge, which discretion will not be interfered with by the Court of Appeal except in a case of gross error, but a doubt was expressed whether if an order had been made, under Rule 6 for a trial without a jury, the trial judge would have a right to disregard this Order and direct a trial with a jury. 22. WORKMEN'S COMPENSATION. In Re Meritt v. St. John Railway Companys the headnote states that on the hearing of a petition under 76 44 N. B. 249. 76 With a defence setting up a tender before action, the sum of money alleged to have been tendered must be brought into Court.' 77 78 43 N. B. 225. 4 70 The Court or a judge may direct the trial without a jury of any cause, matter or issue requiring any prolonged examination of documents or accounts or any scientific or local investigation, which cannot in their or his opinion conveniently be made with a jury.' 80 42 N. B. 667. |