1904. CANON BA RABBIT BOARD v. MORT & CO., If this point is open to the defendants it follows that, as the facts are in dispute, the Court will not decide the question on originating summons. The procedure on originating summons is inapplicable where the existence or validity of the mortgage is GOLDSBROUGH, in dispute; in such a case the Court has no jurisdiction to decide that fact on summons. Under Rule 1 the Court will not, on originating summons, decide whether a defendant is or is not a trustee Elworthy v. Harvey (60 L.T. 30). Rules 1 and 2 assume the existence of the relationship of trustee and cestui que trust, and Rule 4 that of mortgagor and mortgagee: Re Giles (43 Ch. D. 391). The relief under Rule 4 is limited to that specifically mentioned at the end of the Rule. Even where a mortgage is admitted, but the rights of the parties cannot be ascertained except with difficulty, the Court has a discretion to refuse to decide the matter on originating summons. There is another fatal objection; the Rabbit Board, which was a corporation under the Rabbit Act (1902 No. 6), has been dissolved; the Pastures Protection Act (1902 No. 111) substituted for it another corporation, which has been elected, and is a fresh corporation, s. 13; but s. 2, sub-s. (3), and s. 24 do not go far enough, and do not pass to the new corporation the rights and liabilities of the old corporation, and do not inter alia vest this charge in the new corporation. Gordon, K.C., in reply. The Court has jurisdiction to decide all questions between mortgagor and mortgagee on summons, even though the existence or validity of the charge or mortgage is not admitted; whether it will exercise that jurisdiction on summons is a matter for the Court's judicial discretion in each case; the relationship of mortgagor and mortgagee is not affected by the mere denial of the mortgagor that it exists. DARLEY, C.J. It appears in this case that the Rabbit Board for the District of Canonba, in August, 1902, acting under the Act then in force, the Rabbit Act, 1901 (1902 No. 6), s. 14, made an estimate of the probable sum which would be required (in addition to fines, penalties, and other revenues) for the effective administration of that Act in that district. Under that section the amount estimated was 335l. 38. Among other persons owning 1904. CANONBA RABBIT BOARD 17. MORT & CO., The C.J. property in that district were the defendant company, who owned a station comprising 202,591 acres, on which were then running 19,622 sheep. The assessment made as to the amount GOLDSBROUGH, payable by the defendant company was calculated, not upon the LIMITED. number of sheep actually upon the station, but upon the acreage, it being deemed for the purpose of the assessment and rate that there was one sheep on every three acres. The amount payable by the defendant company, calculated upon this basis, came to 281. 28. 9d. The defendant company thereupon appealed to the Justices, who upheld the assessment, and the Rabbit Board for the District of Canonba having come to an end, and being merged in the Pastures Protection Board, joined with the Pastures Protection Board in taking proceedings before the Chief Judge in Equity, on originating summons, asking for a declaration that the plaintiffs were entitled to a charge as from the 22nd November, 1902, upon the lands of the defendant company comprised in the said station for the sum of 28l. 2s. 9d., or for such other sum as might appear just, and for their costs of that summons, and for other relief. When the matter came on for hearing before the Chief Judge in Equity, he dismissed the originating summons without prejudice to the right of the plaintiffs to institute a suit against the defendant company asking for the same relief. In dismissing the suit, his Honour said "Rule 4 seems to me to apply only to cases where there is no dispute as the existence or validity of a mortgage or charge. Where the defendant challenges the validity of the mortgage or charge, as he does here, the proceedings must be by statement of claim." From this statement of the law it would appear that his Honour held that he had no jurisdiction, because the existence or validity of the mortgage or charge was in dispute. This is an appeal from him, and all points arising in the appeal have been very fully argued; some of these points are, however, unnecessary for our consideration. It turns out that the assessment, if levied only upon the sheep and large stock actually in the district, would have brought in 4241, and on the assessment, computed as I have mentioned, there was in fact levied 6047. 38. 4d., of which, however, some 35l. is outstanding, of which the 281. 28. 9d. in dispute forms part. 1904. CANONBA RABBIT BOARD v. MORT & Co., The C.J. It is contended on behalf of the defendant company that this was an illegal rate. Under s. 14 of the Rabbit Act, 1901, the Board made an estimate of the probable sum which would be required for the effective administration of the Act in its GOLDSBROUGH, district; but it is alleged that they have not carried out the remainder of the section, which is as follows:-"The said sum shall be raised by a rabbit rate upon sheep and large stock within the district. Subject to the provisions hereinafter contained the amounts levied under the rate shall be determined by the Board in respect of the holdings within its district, and the Board shall assess and rate every owner or occupier who has ten head or more of large stock, and one hundred sheep or more. Such assessment shall not exceed, in the annual aggregate, three pence per head of large stock and one half-penny per head of sheep. Provided that in the case of unstocked or partly stocked land, whatever may be the actual number of stock on such land, there shall, for the purpose of the said assessment and rate, be deemed to be one sheep on every three acres." It is said that the omission to comply with the provisions of that section renders the rate illegal, and that, although the parties would be bound by the decision of the Justices on the appeal if the rate were legal, they are not bound because it was an illegal rate, and that question was one which the Justices had no jurisdiction to consider. In my opinion we are not called upon to say whether this is or is not an illegal rate, but I think the Chief Judge in Equity has power to so decide. In the consideration of that point very difficult questions may arise; for instance, Mr. Gordon contends that in all cases there must be some margin between the amount actually required for administration purposes and the amount levied, in order to provide for contingencies, and suggests that the Board would be justified in striking a rate which, if fully complied with by all ratepayers within the district, would produce an amount twice as large as that estimated as probably necessary. Mr. Loxton goes further, and argues that so long as the rate struck does not exceed threepence per head of large stock and one half-penny per head of sheep it is immaterial whether 1,000l. may be raised, although, in fact, only 300l. is required. I 1904. CANONBA RABBIT BOARD V. GOLDSBROUGH, LIMITED. The C.J. do not express any opinion on these points, which will be a matter for the consideration of the Chief Judge in Equity should the question come before him. All these questions as to the MORT & CO., compliance with the provisions of the Act and the legality of the rate will depend upon evidence. Although the Court may have jurisdiction to consider these questions on originating summons, and for my part I think it has, and that the Chief Judge in Equity went too far if he intended to hold that the Court had no jurisdiction to do so on an originating summons, still I think the Court has a discretion in the matter, and may always refuse to hear on originating summons questions of this description when they depend on difficult questions of fact. I think that if the Chief Judge in Equity refused to deal with this matter on originating summons in the exercise of his discretion, that was doubtless a proper exercise of his discretion, and accordingly was right in refusing to hear this case on originating summons and in leaving the parties to raise this question by a suit. It may be unfortunate for the parties that they are remitted to their remedy by a suit, with its incidental expenses and delays, where the sum in dispute is so small, yet, though the sum is small, an important principle is involved, and I think the Chief Judge in Equity was right in holding that the matter must be brought before him by suit. There were several other matters argued before us: one was a contention by Mr. Harvey that there is no person or body of persons in existence able to sue upon the charge, because the Rabbit Board is now dissolved, and he contends that its rights are not vested in the Pastures Protection Board. I am, however, inclined to think that the Interpretation Act of 1897, s. 8, does operate to continue the liability if it existed prior to the dissolution of the Rabbit Board, and that the rights of the Rabbit Board in regard thereto are now vested in the Pastures Protection Board by virtue of the provisions of the Interpretation Act. As to the other points raised I decline to give any decision upon them; they depend upon evidence, and we have not enough evidence before us to decide the matters. I think the appeal must be dismissed. 1904. CANON BA RABBIT BOARD V. MORT & CO., OWEN, J. I intend only to give a decision upon the question whether the Court will decide such matters as the present upon an originating summons under Rule 4 of Schedule IV. to the Equity Act. The procedure by originating summons is novel in GOLDSBROUGH, this State, but it is well established in England, and there are many English authorities dealing with the proper limits of this method of procedure. I see no reason why questions affecting the validity or existence of a mortgage or charge should not be raised on originating summons where the decision turns upon a question of law or depends solely upon documentary evidence. Where, however, the decision may turn on complicated questions of fact, necessitating oral evidence and the cross-examination of witnesses, such questions should, in my opinion, be more properly decided by a suit, and the plaintiff should proceed by statement of claim. The judgment of his Honour the Chief Judge in Equity is very brief, and if he meant to decide that the existence or validity of a mortgage or charge can only be determined in a suit, I think he went too far. His language certainly does bear that construction, and in so far as it does, it, in my opinion, goes too far. The Court has, in my opinion, clear jurisdiction to determine the existence or validity of a mortgage or charge either on originating summons or in a suit; but it has always a discretion. to refuse to decide such questions on originating summons; and I think the Court should refuse to entertain such questions on originating summons, except in cases where the issue depends on a mere question of law, or upon documentary evidence, or upon undisputed questions of fact which may be conveniently proved by affidavit. Where the question depends, as in the present case, upon difficult questions of fact, the Court should, in my opinion, refuse to hear such matters on originating summons. With the other matters touched upon by the Chief Justice I concur in what he has said; and for the reasons stated by him I think that this is not a case which should be heard on originating summons. WALKER, J. The arguments in this case have ranged over a large variety of topics with which we have no concern, except to |