ROGERS v. ROGERS.

On a motion to set aside an order of a coinmissioner refusing to discharge a debtor held to bail under the order of another commissioner, the Court, claiming a controlling power over its commissioners, passed a rule absolute discharging the defendant without costs.

IN this case G. Ritchie moved, before DESBARRES, MCDONALD, SMITH and JAMES, JJ., to set aside an order of a commissioner refusing to discharge a party from jail. The case arose out of an order of a cominissioner directing that the defendant should be held to bail, on which a writ of capias was afterwards issued. Defendant applied to another commissioner for his discharge on the ground that the original order had been improvidently issued. In moving to set this order aside Ritchie cited 16 M. & W., 190 and 183; 5 U. C. P. R., 337; 1 L. M. & P., 645; 11 M. & W., 176. If the Court can correct the act of a single Judge a fortiori they can correct the act of an officer of the Court in whom they repose far less confidence.

Tupper.-I agree with the general principle as to the right to control an officer of the Court, but this is not a case where such principles apply. The cases cited were decided under a different act.

(WEATHERBE, J.-Is there not a right independently of statute?) No. In this case an act has been passed curtailing the power of the Court by placing the matter in the discretion of the Judge or commissioner. Day's Com. L. P. Act, p. 950, goes into the question.

PER CURIAM.-The Court of necessity has a controlling power over a commissioner. Rule absolute discharging defendant, but without costs.

MCKENZIE v. ETNA INSURANCE CO.

THE following is the dissenting opinion of WEATHERBE, J., in the case of McKenzie v. Etna Insurance Company. (See ante p. 326):

By sec. 6 of cap. 89, R. S., it is provided that "it shall be lawful for the Supreme Court or any Judge of that Court before whom the consideration, trial or hearing of any question of equitable jurisdiction, or any such mixed questions of law or equity may come, if they or he deem it expedient and conducive to the ends of justice to do so, to order the case, or any subject matter arising thereon, to be transferred to the jurisdiction of the Equity Judge, to be dealt with according to the principles of equitable jurisprudence and the exigencies of the case."

The order appealed from is in the following words :-
IN THE SUPREME COURT, 1879.

CAUSE-Neil McKenzie

V.

Ætna Insurance Company.

On reading the affidavits of William L. Liswell and Jane Crowdis, and the writ and papers, and it appearing upon the argument before me at Chambers that there are mixed questions of law and equity herein, and deeming it expedient to apply the principles of equitable jurisprudence in the consideration of the cause, I do hereby, under sec. 6, cap. 89, of the Revised Statutes, transfer the same to the jurisdiction of the Equity Judge to be dealt with according to such principles and the exigencies of the case, all further proceedings on the part of the plaintiff at common law being stayed.

Halifax, 10th March, 1879.

(Sgd.) W. YOUNG.

It will be observed that this appeal is granted on, among other papers, the affidavit of Charles Tupper, plaintiff's attorney, made after the order appealed from. But for this I would have supposed that on an appeal from an order at chambers facts, except those before the Judge, could not be introduced.

Looking at the order made, the question is whether that itself, or anything on which it is made, discloses jurisdiction under the act to send the case to the Equity Court. Mr. Tupper says in his affidavit, "that the motion heard before the learned Judge was neither a question of equitable jurisdiction, nor a mixed question of law and equity, nor was there any equitable defence set up in this action." But we are not to look to the affidavit to ascertain this. It is a question of law, not of fact.

The difficulty is that the order itself does not disclose that there was any question of equitable jurisdiction brought before the learned Chief Justice for his consideration, as the statute seems to require. This ground of the defect of the order, though taken in the affidavit and urged at the argument, is not taken in the rule for appeal, and on that ground, I think, cannot prevail now.

Another question is before us as to whether the order transmitting the cause, without an application or motion for that purpose, or any notice to either party, can be made. I confess it does not seem to be in accordance with general principles that such should be the state of the law, and I can hardly bring myself to believe that this is the meaning of the act.

CA

CASES

DETERMINED IN THE

Vice-Admiralty Court at Halifax,

FROM JUNE, 1881, TO SEPTEMBER, 1881.*

IN THE VICE ADMIRALTY COURT AT HALIFAX.

THE "SARDINIAN," J. E. DUTTON, MASTER.

On the morning of the 23rd January, 1880, the Sarah E. Fraser was lying to about eighty miles south of George's Shoal heading northeasterly, the wind being southeasterly and blowing a fresh gale. The watch had been changed at 4 A.M., sail had been shortened, a man stationed at the bow as a look-out, and one at the wheel, which was lashed hard to port. The clouds had begun to break overhead, but it was quite dark on the horizon. The Sarah E. Fraser had her regulation lights in their proper places brightly burning, and two lamps burning in a skylight near the stern. A light was reported astern a mile distant according to plaintiff's witnesses, and five or six minutes before the collision took place. As soon as it was seen a glass lantern with kerosene brightly burning was exhibited at the stern of the Sarah E. Fraser, but this was not seen, nor was the vessel itself seen by those on board the steamer until she approached at a rate of twelve or thirteen knots an hour to within five or six hundred feet, when the helm was immediately put hard to port and engines stopped, but too late to avoid the collision.

Held, that the Sardinian should have seen the lights of the Sarah E. Fraser in time to avoid a collision; that the rate of speed was excessive under the circumstances, especially as the vessel was in the track of vessels bound to and from American ports; that the engines should have been reversed; that the Sardinian was solely in fault for the collision, and that the Sarah E. Fraser was blameless.

On the second day of February, 1880, exhibited Wallace Graham, Proctor, for Richard Harding and others, the owners of the late barque Sarah E. Fraser, of the State of Maine, in the United States of America, and for Phinney and Jackson, of Portland, in the said State of Maine, owners of the cargo on board of said barque, and alleged :

That on the 19th day of January, 1880, the said barque Sarah E. Fraser whereof Joseph W. Sheppard was master,

* Previously to the appointment of the Honorable James McDonald as Chief Justice of Nova Scotia Sir William Young, C. J., presided in the Vice-Admiralty Court. The judgments delivered by him are reported in Mr. Oxley's volume of Vice-Admiralty reports.