DENNISON v. JACK.

APPEAL from the County Court dismissed, where the rule for appeal was in these terms: "I do order that the judgment be set aside on the following grounds, &c., &c., unless cause to the contrary be shown before the Supreme Court at Halifax within the first four days of the ensuing December term."

Certiorari quashed where the order was granted by a Judge, and the writ issued by a commissioner who was directed in the order to endorse upon the writ the amount for which bail was filed, &c., - the Court holding that the Judge had no power to order a commissioner to endorse the writ.

THIS cause came before the Court on a motion to dismiss two appeals. The following are the rules for appeal :

ANNAPOLIS, SS.

COUNTY COURT, 1880.

Joseph Dennison, Plaintiff,

vs.

James Jack, Defendant.

Upon reading the order made in this cause on the 14th day of August instant for an appeal herein, also the order nisi obtained by plaintiff to set aside defendant's order absolute granting leave to withdraw his demurrer herein, also the affidavits produced by plaintiff and defendant, and the order absolute granted on the 21st day of August, discharging plaintiff's order nisi and the judgment delivered therein, I do order that plaintiff have leave to appeal from said judgment, as well as the final judgment delivered herein in favour of defendant, on the ground that last mentioned judgment is against law and the practice in such cases.

(Sgd.) A. W. SAVARY. On motion of MR. CHESLEY for plaintiff.

Digby, August 28th, 1880.

IN THE COUNTY COURT, 1880.

ANNAPOLIS, SS.

Joseph Dennison, Plaintiff,

28.

James Jack, Defendant.

Upon reading the writ and pleadings in above cause, the minutes of trial thereof, and any exhibits which may have been produced at the trial, and the judgment rendered herein

at the August sittings of this Court at Annapolis, I do order that the judgment rendered herein for defendant, be set aside and such order made herein as the appellate Court may order, and on the following grounds, with costs to plaintiff:

1st. Because the said judgment is against law.

2nd. Because of the improper admission of the testimony of R. I. Uniacke to establish defendant's pleas, and that defendant was assignee of Samuel A. Dennison, under the Insolvent Act of 1875 and amendments thereof.

3rd. Because said judgment is against the evidence produced on the trial of said cause.

4th. And for other grounds disclosed by the writ and pleadings herein, and the minutes of trial of said cause.

5th. Because defendant's plea, to the jurisdiction is void and irregular; unless cause to the contrary is shown before the Supreme Court at Halifax within the first four days of the ensuing December term of said Court.

(Sgd.) A. W. SAVARY,

Judge of the County Court.

On motion of MR. CHESLEY for plaintiff.

Annapolis, August 14th, 1880.

W. Ross moved on January 29th, 1881, to make absolute a rule to dismiss the appeal and strike the cause off the docket, on the ground that there were no words in the rule for appeal that purported to grant the appeal; Heustis v. Lynds, 1 R. & G.,

248.

The grounds are bad, and it is not said what court the appeal is to. There is only one cause on the docket, and one judgment with the two rules annexed to it. (WEATHERBE, J. -There are two decisions at two different dates. There must be two appeals.) They have not been treated as such. (WEATHERBE, J.-One of the appeals must be a nullity. After an appeal was granted the matter was in this Court and the Judge had no further power over it.)

Chesley contra.-There are two distinct appeals, and two entries on the docket. The application to dismiss the appeal is irregular. (WEATHERBE, J.-Merely in asking too much.) The rule for appeal may be informal, but the Court has power to amend. (WEATHERBE J.-There is no application.)

One of the decisions appealed from is on the merits, and the other is on a question of law. (WEATHERBE, J.-The latter was after the date of the judgment on the whole case.) Yes. (WEATHERBE, J.-Then there was nothing further in his court. DESBARRES, J.-The first rule is the one that has the nisi clause in it.). Yes. (YOUNG, C. J.-The whole thing is a complete irregularity. He had no power over the cause after granting the first rule, and that rule is bad as containing a nisi clause. MCDONALD, J.-The second judgment was seven days after the appeal. WEATHERBE, J.-If the first rule was a rule nisi it was a nullity, and the cause was never taken out of the Court.)

Harrington, (with Chesley,).-The rule cannot be made absolute on any ground not contained in it. If the first appeal is bad we can succeed upon the second. The rule in Johnston v. Poyntz, 1 R. & G., 166, was held sufficient. It was the same as the rule in the present case. (WEATHERBE, J. -This is very much worse than Heustis v. Lynds. There is no appeal here. There is nothing but a rule nisi to set the judgment aside. On an appeal under the statute we may make any order we see fit.)

The argument was allowed to go over until Saturday next, on recommendation that the rule should be made absolute, by consent, without costs.

W. Ross moved, (February 19th, 1881,) before Des Barres, MCDONALD, SMITH, JAMES and WEATHERBE, JJ., to dismiss the appeal, which purported to be granted by the rule of August 14th, 1880, abandoning the other branch of the rule. Harrington consented to the rule being made absolute in part, as moved for.

Rule granted on payment of costs of the motion.

On the same day and before the same Judges, W. Ross moved to quash a certiorari granted by Mr. Justice JAMES, on the grounds that the bail was defective; that the endorsement on the writ was made by a Commissioner, while the order had been granted by a Judge; and that the affidavit for certiorari was headed in the cause. The bail was in the following form

IN THE SUPREME COURT, 1880.

ANNAPOLIS, SS.

Joseph Dennison, Plaintiff,

vs.

James Jack, Defendant.

Joseph Dennison, the above named plaintiff, of Bridgetown, in the county of Annapolis, is delivered to bail in the sum of sixty dollars in above action, and also Edmund Clark of Granville, in said county, farmer, and David Morse of Annapolis, in said county, farmer, each in the sum of sixty dollars, on rule granted in this cause by His Honor Justice JAMES, that a writ of certiorari do issue in the same, commanding the Judge of the County Court for the county of Annapolis to send up to this Court all the papers in the above suit, including the bill of costs taxed for defendant in said cause.

Taken and acknowledged before me by each of the above bail, in the sum of sixty dollars, this 30th day of April, 1880, at Bridgetown, in the county of Annapolis.

(Sgd.) ALBERT MORSE,

Com'r of Supreme Court for Co. of Annapolis.

Upon reading the affidavit of Thomas W. Chesley, sworn on the 19th day of April, A.D. 1880, and of Joseph Dennison, sworn on said 19th day of April, A.D. 1880, and the exhibits thereto annexed, and on motion of counsel, I do hereby order that a writ of certiorari do issue in the cause of Joseph Dennison against James Jack, in the County Court of Annapolis, aforesaid, commanding the Judge of said County Court to send up to this Court all the papers in said suit, including the bill of costs taxed herein for the defendant, in said affidavits referred to; and that the defendant do file bail in a bail-piece to the amount of sixty dollars, to respond the judgment to be finally given in the cause. And the Commissioner

who issues the said writ shall endorse upon the same the amount for which bail is filed, with the name of the bail, and also the date on which the same is allowed, and shall put his signature thereto.

Dated at Halifax this 20th day of April, A.D. 1880. (Sgd.) A. JAMES. On motion of Mr. C. S. Harrington of counsel with defendant.

Harrington.-Where the defect is in the bail or 'order the rule must be to set aside that. (MCDONALD, J.-The rule is to set aside the order and certiorari because the bail-piece is defective. WEATHERBE, J.-It appears to me that it is enough. I do not know why you ask to set aside the endorsement.) I contend that where the bail is defective the motion should be to set the bail aside, as the Court may permit an amendment; 1 Chitty's Reps., 79. The motion there resulted in an order to amend. If there be an irregularity the root of it is in the bail. (WEATHERBE, J.-The statute is that the bail is to be filed before the writ is issued.) DESBARRES, J.-We are all agreed. The Judge has no power to order a Commissioner to endorse the writ.

Rule absolute.

IN RE MORTON, (COLLIE'S CLAIM).

OBJECTIONS to claim against insolvent estate dismissed where no evidence was filled with the assignee of service of copy on the claimant; Insolvent Act of 1875, sec. 95.

THIS was an appeal from a decision of the County Court Judge, Liverpool, dismissing objections to claims filed against the estate of Sylvanus Morton, an insolvent. The appeal was argued February 28th, 1881, before McDONALD, SMITH, JAMES and WEATHERBE, JJ.

Rigby, Q. C., for appellant.-The appeal is in the name of several claimants, whereas there should have been distinct appeals. Motions were made to set aside objections to several claims, and distinct rules were granted which, by consent were consolidated into one. The Judge decided that the objections to three claims should be set aside, and the claims