ALLISON AND OTHERS, TRUSTEES FOR ALL THE CREDITORS OF SCOVIL v. ROBINSON.

JUNE 21, 1870.

Where the title of a cause described the plaintiffs as "trustees for all the creditors of the estate and effects" of an absconding debtor, and the affidavits served on the plaintiff with a view to the discharge of bail, in their titles described the plaintiffs as "trustees for all the creditors, &c.," omitting the words "of the estate and effects," held sufficient.

S. R. Thomson, Q. C., showed cause aganist a motion to discharge the bail in this case, and enter an exoneretur on the bail piece. He contended that the motion could not succeed, because there was a misnomer in the title of the cause in the papers served on the plaintiff's attorney, with a view to this motion. The proper title of the cause was only given in the affidavit of service, where the plaintiffs are described as "trustees for all the creditors of the estate and effects" of Scovil; in all the other affidavits, the words "of the estate and effects" were omitted, which was a misnomer. The plaintiffs were trustees under the Absconding Debtor's Act (1 Rev. Stat. 314), and that Statute describes them as "trustees for all the creditors of the estate and effects," &c., as in the proper title in the present cause. All the affidavits served on behalf of the bail, but the affidavit of service, were therefore improperly entitled, and the motion must fail.

F. E. Barker, contra. The variance in the title of the cause is wholly immaterial. The words omitted are merely descriptio persona. The title which describes them as trustees of all the creditors is substantially correct; and the plaintiffs could not possibly have been misled by the omission, as to the nature of the present motion.

RITCHIE, C. J.-I think that the titles of the affidavits in this case were substantially correct. In Reeves v. Crisp (6 M. & S. 274), it is decided that the words "gentleman one," &c., in the title of an affidavit where in point of fact the plaintiff was not an attorney, did not vitiate the affidavit where it did not appear that the plaintiff was misled by the addition, which it was held might be rejected as surplusage. The title of an affidavit may not be strictly correct, and yet not wholly objectionable. Here we have the names of the parties correctly given, and the plaintiffs described as trustees for all the creditors of Scovil. They can therefore only be the trustees of the estate of the absconding debtor. There is enough in point of fact to show that the suit was brought by the plaintiffs as trustees of the estate of the debtor. I think the motion must be granted.

Ex parte Thomas.

ALLEN, J.-I am of the same opinion. Singleton v. Johnson (1 Dowl. N. S. 356), goes to show that a literal compliance is not necessary. There it was held that the omission of the words "the elder," after the defendant's name in the title of an affidavit, did not vitiate it.

WELDON, J., and FISHER, J., concurred.

Motion granted without costs.

Ex parte THOMAS.

JUNE 21, 1870.

A demand was made upon a debtor under sec. 14 of the Insolvent Act, 1869, requiring him to make an assignment of his estate and effects for the benefit of his creditors. The debtor presented a petition under section 15 to the County Court Judge, upon hearing which he decided that the demand was inoperative, and ordered that no further proceedings be taken. Held, That as there was an appeal from the Judge's decision, a certiorari would not lie to remove the proceedings.

The County Court Judge of the County in which the demand on the debtor to assign is made, is the proper party to hear the petition, although the debtor may reside and do business in another County.

A rule nisi was obtained before Mr. Justice WELDON at Chambers, requiring William J. Gilbert to show cause why a writ of certiorari should not issue to remove into the Supreme Court an order made by Judge Watters, County Court Judge for the County of St. John, in the matter of William J. Gilbert under the Insolvent Act, 1869. From the affidavits it appeared that on the 19th May, 1870, James U. Thomas, assignee of Samuel Neil, claiming to be a creditor of Gilbert, made a demand in the City and County of St. John on Gilbert personally, requiring him to make an assignment of his estate and effects for the benefit of his creditors, under the 14th section of the Insolvent Act. On the 23rd May, Gilbert gave the said Thomas notice, under Sect. 15 of the Act, that on the 25th May he would present a petition to Judge Waters, praying that no further proceedings should be taken. The petition inter alia, set forth that Gilbert was not a resident of the County of St. John. On, such petition being presented, and the fact of the plaintiff being a resident of Westmorland, and of his chief place of business being there, being admitted, and counsel being heard, Judge Watters decided that the demand was inoperative, and ordered that no further proceedings be taken on it under the Act, and Thomas to pay the costs which he taxed.

Ex parte Thomas.

A. L. Palmer, Q. C., now showed cause against the rule. The principal ground of Judge Watter's decision was, that the proceedings were not in conformity with the Act, as the demand should be made in the County where the debtor resides, or in which is his chief place of business, which was not done. The demand was made in St. John agreeably to Form E, and there was nothing in it to show that Gilbert did not reside in St. John. The points taken in moving for the certiorari were: 1st. That Judge Watters had no jurisdiction, the demand being a mere nullity; and that, if the demand was good, the petition should have been presented to the County Court Judge of Westmorland. 2. There being no investigation of the facts, Judge Watters was not justified in making the order. 3. He had no power to tax costs. Now as to the 1st point, I contend that Judge Watters was the proper party to present the petition to; Sect. 15 says it must be presented within five days from the demand. It must be presented to "the Judge," and Sect. 142 says that in this Province, the words "the Judge" shall mean "a Judge of the County Court of the County or Union of Counties in which the proceedings are carried on." As to the second point, the fact that Gilbert resided in Westmorland, is alleged in the petition and admitted. As to the third point, Sect. 15 gives the Judge power to grant the petition, with or without costs. Behind all these, however, is the point that no certiorari will lie in this case, as the Act has by Sect. 83 given an appeal from the decision of the Judge to the Supreme Court of New Brunswick. Where the Statute gives an appeal, the Court will not grant a certiorari.

Duff, Q. C., contra. All the points in this case may be covered by two propositions: 1. Whether the certiorari is taken away by Statute? 2. Whether there are sufficient grounds for a certiorari? It is a clear proposition of law that the writ of certiorari is never taken away but ay express words; never by implication. Rex v. Reeve (1 Wm. Black. 231); Rex v. Jukes (8 Ť. R. 544). [ALLEN, J.: It may not be taken away by express words, but it lies in the discretion of the Court to grant it. RITCHIE, C. J.: This Court has held, that even where certiorari was not taken away, if there is another appeal given, the Court will not grant a certiorari.] There is no appeal given under the 83rd section of the Act, as is contended; the 82nd section gives an appeal from the award of the assignee to the Judge, which means the Judge of the County Court; but Sect. 83 merely says that parties to an appeal, &c., dissatisfied with the final order of a Judge, may "move to revise the same" before the Supreme Court; that does not mean an appeal. [RITCHIE, C. J.: A revisal must be by appeal, for a single Judge could not issue a certiorari;

Ex parte Thomas.

and it is a rule of law that every appellate Court has everything necessary to carry out its jurisdiction.] I submit that the certiorari is not taken away, and that the appeal is given merely by implication. [RITCHIE, C. J.: Both "revise" and "appeal" are used in the 83rd section. It says "the parties may appeal therefrom, &c." This is a statutory tribunal, and it is time enough to ask us for a certiorari when it is found that the statute does not provide for such a case as the present by appeal.] An appeal is only granted from the final order of a Judge. I submit that this was not a final order, as it was one which Judge Watters had no authority to make, and in which he had no jurisdiction. The petition should have been presented to the Judge of the County Court of Westmorland, where Gilbert resided. [RITCHIE, C. J.: I have no hesitation in saying that Judge Watters was rtght in thinking he had jurisdiction to deal with this petition. The demand was made in St. John; five days is the time allowed to present the petition, and five days is too short a time to enable a man to go from one end of this Province to the other, to present the petition to the Judge of the County where he resides. It is quite clear that the Act contemplated that the petition should be presented to the Judge of the district where the demand was made. ALLEN, J.: I think that Sect. 142 is quite decisive upon that point.] If the Court is against me on the question as to the right to certiorari, it is unnecessary to discuss the other points.

Per Curiam. Rule discharged.

On the 15th June, 1870, the Honorable ANDREW RAINSFORD WETMORE, Her Majesty's Attorney General, was appointed a Justice of the Supreme Court.

On the 15th June, 1870, the Honorable GEORGE E. KING was appointed Her Majesty's Attorney General.

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF NEW BRUNSWICK,

IN MICHAELMAS TERM,

IN THE THIRTY-FOURTH YEAR OF THE REIGN OF QUEEN VICTORIA,

BURKE V. NILES.

OCTOBER 22, 1870.

Where a grant from the Crown to B. was described as "beginning at a stake standing on the bank or edge of Round Lake, and (after describing other courses), thence south, &c., to a stake standing on the westerly bank or edge of said lake, and thence following the several courses of the said bank or edge, to the place of beginning." Held, that the words "bank or edge," were intended to express the margin, and made the water's edge the boundary of A.'s grant.

N. received from the Crown a grant of Round Lake eo nomine, with all profits, hereditaments, &c., reserving to the Crown all mines and minerals. Held, That the grant conveyed the soil of the lake.

Where a navigable lake recedes gradually and imperceptibly, the derelict land belongs to the riparian proprietors.

Trespass quare clausam fregit, with an asportavit count, and a count for assault and battery. The defendant pleaded liberum tenementum, and justified the assault as being in defence of his property. At the trial before ALLEN, J., at the Westmorland Circuit, it appeared that the plaintiff was the owner of lot No. 2, in a grant from the Crown to Joseph Burke and others, dated 28th April, 1828, where the land was described as follows: "Beginning at a stake standing on the bank or edge of Round Lake (so called,) the said stake being distant fifty-three chains from a marked spruce tree standing on the rear or south-westerly line of the grant to John Downing and associates; thence north 15 degrees west, &c., (stating several courses;) thence south 75 degrees east one hundred and ten chains, to a stake standing on the westerly bank or edge of the said