attorney undertaking to pay the debt and costs. Before the time for putting in bail had expired, the defendant died insolvent, but the Court held that the attorney was bound by his undertaking. The case might be different if the solicitor never intended to give the undertaking in the form in which it was given, as in Mullins v. Howell (1879), 11 Ch.D. 763. The present, however, is a case in which it appears that the solicitor is unable to carry out an undertaking which he was unwise enough to give this inability from no fault of his own. And, while I have no doubt that the Court has power to order the solicitor to pay the costs of the action, so far as they cannot be obtained from the plaintiffs, I do not think that it is obligatory upon the Court so to order. Peart v. Bushell (1827), 2 Sim. 38, while not quite in point, is analogous. After much hesitation and wavering of opinion, I have come to the conclusion that in this case I shall not order the solicitor to pay any costs, except the costs of speaking to the case after the failure to add the parties. Of course, the solicitor will have redress for this in proceedings against him who instructed the undertaking to be given: Kite v. Millman (1833), 2 M. & Sc. 616; but I cannot dispose of this in the present action. The consideration which has finally decided my mind is that, had the solicitor at the trial not given the undertaking, but had asked for the order (subsequently made) for representation, I should have made the order, and the trial would have proceeded. It is to be hoped that this lenient view will not tend to encourage the giving of undertakings without the most careful consideration; nor should this disposition of the costs lead members of the profession to look upon an undertaking as a mere matter of form. The defendant will have leave to appeal from this disposition of the costs, and all other rights are reserved to her against the solicitor. Riddell, J. 1908 REEVES V. REEVES. A. H. F. L. 1908 May 11. [IN CHAMBERS.] IN RE AARON ERB (No. 1). Assignments and Preferences—Appeal from County Court Judge—Jurisdiction A Judge of the High Court of Justice has no jurisdiction to entertain an THIS was a motion for leave to appeal from His Honour Judge Chisholm, county court Judge of the county of Waterloo, under the circumstances mentioned in the judgment. The motion was argued before RIDDELL, J., in Chambers, on May 8th, 1908. W. E. Middleton, K.C., for the applicant. J. E. Jones, for the Merchants' Bank of Canada. The facts and cases cited are mentioned in the judgment. May 11. RIDDELL, J.:-Aaron Erb made an assignment for the benefit of his creditors. The Merchants' Bank of Canada filed a claim for over $25,000. They held, as collateral security for advances made to Erb, a number of notes made by the Boehmer Erb Co., Ltd., payable to Erb and indorsed by him, to an amount over $17,500. The bank declined to value these securities, and upon an application to His Honour Judge Chisholm, that learned Judge supported them in that position. Thereupon the assignee served notice of motion before the presiding Judge in Chambers, "by way of appeal from the order" of Judge Chisholm "and to reverse the same, and for an order that the Merchants' Bank of Canada do value the securities they hold as against the Boehmer Erb Company, Limited, pursuant to the Act, or for such other order as may be just." The matter came before my brother Britton, and he, against the protest of the counsel for the bank, . permitted an amendment to be made in the notice of motion changing it into a notice for special leave to appeal under sec. 14 of 63 Vict. ch. 17, (O).* My learned brother then enlarged the motion, and it came on for argument before me Friday, May 8th. I have had the opportunity and advantage of a conference with my brother Britton, and I agree with him in the conclusion that there is no jurisdiction to entertain the motion. The leave is to be granted "by a Judge of the Court of Appeal." The Supreme Court of Judicature continues "to consist of two permanent divisions called the High Court of Justice for Ontario and the Court of Appeal for Ontario:" Judicature Act, sec. 3 (2). In most other parts of the legislation, "The High Court of Justice for Ontario" and "The Court of Appeal for Ontario" are denominated simply "The High Court" and "The Court of Appeal." I do not think there can be any doubt as to the meaning of the words here, and am of opinion that I have no jurisdiction to entertain this application. I am asked to transfer the application to a Judge of the Court of Appeal under Con. Rule. 784: "Where any motion or appeal is set down to be heard before a Court which is not the proper Court for hearing the motion or appeal, the same may, upon such terms as may seem just, be transferred to, and shall be heard by, the proper Court for hearing the same.” It is admitted that a Judge in Chambers has no jurisdiction to entertain an appeal from the county Judge or to order the Merchants' Bank of Canada to value their securities. So much, then, of the application should be dismissed, and I think with costs. The right to award costs against the applicant in cases in which the tribunal applied to has no jurisdiction was long questionable. Such cases as Re Isaac (1838), 1 My. & Cr. 11; Tench v. Cheese (1838), 9 Sim. 150; Rashleigh v. Mount (1848), 16 Sim. 390, and cf. note; Yearsley v. Yearsley (1854), 19 Beav. 1; Brown v. Shaw (1876), 1 Ex.D. 425; Great Northern and London and North Western Joint Committee v. Inett (1877), 2 Q.B.D. 284; Crowther * R.S.O. 1897, ch. 76, respecting the enforcement of orders of Judges made under special statutory authority, enacts, in sec. 6, that "there shall be no appeal from the order of a Judge made as aforesaid unless an appeal is expressly authorized by the statute giving the jurisdiction." 63 Vict., ch. 17, sec. 14 (0.), amends this section by adding the words: "Or unless special leave is granted by the said Judge or by a Judge of the Court of Appeal." Riddell, J. 1908 IN RE AARON ERB (No. 1). Riddell, J. 1908 IN RE AARON ERB (No. 1) v. Boult (1884), 33 W.R. 150, and cases mentioned in the reports; also in our own Courts: Powley v. Whitehead (1859), 16 U.C.R. 589; Re Cosmopolitan Life Association (1893), 15 P.R. 185; Cote v. Halliday (1897), 33 C.L.J. 159; Sherk v. Evans (1895), 22 A.R. 242, contain decisions more or less applicable to the discussion. But our Con. Rule 1130 (1)* has, I think, affirmed the power to award costs in such cases. Though there is no jurisdiction in any part of the Supreme Court to deal with what is asked for is clear; but the application is nevertheless a proceeding in the Supreme Court, and costs may be given against the applicant. As I am of opinion that the general prayer "for such other order as may seem just" may cover an "order allowing appeal," even if, as contended, my brother Britton had no power to allow the amendment (as to which I say nothing) a Judge of the Court of Appeal has apparently jurisdiction to deal with this part of the application, and therefore I may refer it to "a Judge of the Court of Appeal." This will, however, only be upon terms of the applicant paying the costs of the application before my brother Britton and myself. The order then will be that the application is dismissed so far as the specific relief sought is concerned, with costs. If the costs be paid, the application for leave to appeal will be, under Con. Rule 784, transferred to a Judge of the Court of Appeal; if not, the remainder of this application will also be dismissed. All this, of course, will not and cannot prejudice the applicant if he should be advised to apply directly to a Judge of the Court of Appeal, abandoning any right which he may have under this order. A. H. F. L. * Con. Rule 1130 (1):—“Subject to the provisions of the Judicature Act, 1895, and to the express provisions of any statute heretofore or hereafter passed, the costs of and incidental to all proceedings in the Supreme Court shall be in the discretion of the Court or Judge, and the Court or Judge shall have full power to determine by whom and to what extent the costs shall be paid." [IN CHAMBERS.] IN RE AARON ERB (No. 2). Certiorari-Proceedings before County Court Judge-Assignments and Preferences Act-R.S.O. 1897, ch. 147-Certiorari after Judgment—Discretion— Motion for Leave to Appeal. A certiorari order may be made by a Judge of the High Court in Chambers to bring up proceedings taken before a county court Judge, under the Assignments and Preferences Act, R.S.O. 1897, ch. 147, and this notwithstanding that a right of appeal by leave of a Judge of the Court of Appeal exists under 63 Vict. ch. 17, sec. 14 (0.). Before judgment the right to certiorari is absolute, but after judgment there is a judicial discretion to grant or refuse; and in such a case as the above certiorari should not be granted after judgment until application is first made for leave to appeal. THIS was a motion for an order of certiorari made under the circumstances mentioned in the judgment. The motion was argued before RIDDELL, J., in Chambers, on May 8th, 1908. W. E. Middleton, K.C., for the applicant. J. E. Jones, for the Merchants' Bank of Canada. May 12. RIDDELL, J.:-The facts of this case are sufficiently set out in my judgment in In re Aaron Erb (No. 1), just handed out. Notice of the application disposed of in that judgment having been served on April 28th, the assignee on May 2nd served another notice of motion. This was of an application "for an order in the nature of certiorari to bring up proceedings before the said county court Judge, and to review the same, and for an order directing the valuation of the securities held by the Merchants' Bank, and referring the matter back to the said Judge to make a proper order in accordance with the law in that behalf requiring the said bank to value these securities within a time to be limited or to be barred." In respect of all else than the application for a certiorari order, I cannot deal with the motion except to dismiss it: Re Paquette (1886), 11 P.R. 463; Re Young (1891), 14 P.R. 303; Re Simpson and Clafferty (1899), 18 P.R. 402; R.S.O. 1897, ch. 147, sec. 6; and indeed this is not disputed. Different considerations, however, apply to the application for a certiorari order. As at present advised, I am of opinion that the county court Judge, acting as he was, is an inferior Court, to 1908 May 12 |