it is the clear requirement of the statute that the articles should state how many sailors are on board.

In these respects the agreement in question is not as nearly as it might have been in conformity with the schedule, and when it is considered for a moment on what mere trifles men have been discharged from imprisonment who have actually committed the most serious crimes, I think it would be opposed to the spirit of our laws to detain these men in jail for what, although technically an offence, is in fact the mere breach of an agreement, when there are such serious doubts as to the compliance with the requirements of the Act.

NOVA SCOTIA.

FULL COURT.

MAY 25TH. 1906.

McLURE v. PARKER.

Collection Act-Appeal from Examiner's Ruling-No Power to Extend Time after Statutory Period has Elapsed.

Application to restrain the Judge of the County Court for District No. 1 from proceeding with the hearing of an appeal from the order of an examiner made under the Collection Act, argued before WEATHERBE, C.J., TOWNSHEND, MEAGHER, and RUSSELL, JJ.

A. Whitman, for the application.

T. Tobin, contra.

TOWNSHEND, J.-This is an application for a writ of prohibition to the Judge of the County Court, forbidding him to proceed in the matter of an appeal from the decision of the examiner under the Collection Act. The ground taken is that the time had elapsed within which he could exercise jurisdiction.

Section 31 directs that in case of an appeal a notice stating the grounds and time and place shall be given at least 48 hours before the hearing. Section 2 directs that the notice must be served on the solicitor or respondent personally within ten days from the date of the decision appealed from. or

within any additional time allowed upon application to the Judge.

In this case the decision was made on the 21st of December, 1905.

No notice of appeal was served until the 4th of January, 1906. The ten days had then expired. Mr. Tobin, solicitor for appellant, obtained on the 10th of January, 1906, an ex parte order extending the time for giving notice of appeal to the 5th of January. On the 11th of January the solicitor for plaintiff attended before the Judge in Chambers, and contended that the order extending the time was improperly granted ex parte, and on insufficient grounds, and the Judge adjourned the argument until the 18th of January, when he heard further argument, and reserved his decision until the 25th of January, when he decided to extend the time until the 15th of February. It appears that on the 18th of January the question of his right to extend the time was argued, and judgment was reserved on that question, but no application to hear the appeal then on its merits was asked for, nor was it adjourned.

On 15th February an order was taken extending the time for giving notice of appeal to the 5th of January, 1906, against Mr. Whitman's objection.

On the 19th of February, notice of appeal was served on plaintiff's solicitor for a hearing on the 22nd of February, At the hearing Mr. Whitman objected to the jurisdiction of the Judge to hear the appeal, because it had not been brought on within the thirty days from the date of the order appealed from. The Judge decided he had jurisdiction, and after the case was argued under protest, he reserved his decision.

The sole question now is, whether the Judge had lost jurisdiction by reason of his not having heard and adjudicated on the appeal within thirty days.

Section 33 reads: "When the appellant fails to prosecute his appeal before the judge within thirty days from the date of the decision or adjudication of the examiner, the appeal shall stand dismissed, and the decision of the examiner shall be confirmed without further order." As amended by Acts of 1901, c. 15, it reads: "When the appellant fails to

prosecute his appeal within the time prescribed by this section (that is 30 days), such appeal shall stand dismissed, and the decision or adjudication of the examiner shall be confirmed without further order."

I should think, looking at s. 31, there can be little doubt. as to the Judge's power, on a proper application, to extend the time for giving notice of appeal. but the point made by Mr. Whitman is, that such extension order must be made within the 10 days, in support of which he cites the Glengarry Election Case, 14 S. C. R. 453. I am inclined to think there is much force in this contention. Otherwise there would appear to be no limit as to the time at which an application for an extension can be made, and the matter thus kept open for an indefinite period. Moreover the policy of the law to prevent delays in proceedings of this character is clearly manifest throughout the statute. He certainly cught not to have granted an ex parte order, and it seems reasonable that some substantial ground for an extension should be given in any case. Here there was none.

The further point is made, and that on which plaintiff places most reliance, that it was not in his power to adjudicate after the lapse of thirty days, and as he unquestionably was proceeding to do so in this case he should be prohibited. This argument is founded on the very specific words of s. 33 as amended," when the appellant fails to prosecute his appeal before the judge within thirty days from the date of the decision the appeal shall be dismissed." Then s. 36. defining his power, says: "The Judge to whom such appeal is made shall thereupon hear and determine the matter of the appeal." These words, it is contended, are mandatory, and it is not in the power of the Judge when the matter was brought on for a hearing to adjourn it at any rate to a period beyond the thirty days, and then make an adjudication. It is pointed out that reading the amended s. 33 with £. 31, and s. 36, it can have but one meaning, that where the appellant fails to prosecute his appeal so that it shall be brought on before the Judge for hearing on the merits within the prescribed time, thirty days from the decision appealed from, it shall stand dismissed. As a matter of fact the appeal was not brought on for a hearing on the merits until the 22nd February, over two months after the examiner's order. It does seem to me impossible to work out the

Collection Act in this manner according to its true intent and meaning. If it is in the power of the Judge to postpone from time to time beyond the thirty days fixed by the statute, then I can see no reason to prevent him hearing and adjourning for years, in fact there is no other limit, and this convinces me, in connection with the imperative language of the statute, that it was not intended that he could enter into its consideration after the expiration of thirty days. The case of Barker v. Palmer, 8 Q. B. D. 9, is very much in point. The same reasons apply here with more force. Grove, J., says: "I think the County Court Judge was wrong in hearing the case. In construing Acts of Parliament provisions which appear on the face of them obligatory, cannot without strong reasons be given, be held only directory. The rule is that provisions with respect to time are always obligatory, unless a power of extending the time is given to the Court, and there is no such power here." So in this case, with regard to the hearing by the Judge, there is no power to extend it beyond the thirty days prescribed by the Act. In Barker v. Palmer, it was a mere question as to the time of service of the summons. I scarcely think the argument of the counsel for the defence will meet this difficulty. He wishes to apply the word "prosecute" to the commencement by notice of appeal, but I think it has reference to the hearing before the Judge. The time for notice of appeal, and extension of time, is fixed by another section, and cannot without inconsistency be applied to the prosecution. Although not cited at the argument, it appears to me what was said in In re Dominion Cotton Mills, The Trecothic Case. 37 S. C. R. 79, has considerable bearing in this case, and that not even the act of the Judge or the Court will be an excuse for lapse of time.

I think the writ should go.

WEATHERBE, C.J., concurred.

MEAGHER, J., was of opinion that, on the ground of delay, an extension of time should not have been granted, but that there was no appeal from the order extending the time or right to a writ of prohibition.

RUSSELL, J.-I think that the Judge of the County Court could extend the time for giving notice of appeal by

an order made after the expiration of the ten days within which it could have been given without any order for extension. The majority judgment in the Glengarry Case cited contra, is based on the special provisions of the Controverted Elections Act, see per Taschereau, J., at page 475 of 14 S. C. R., and even with those special provisions in the statute, Ritchie, C.J., thought the time could be extended by an order made after the expiration of the six months. The language of the Act in question here seems almost expressly to provide for an extension after the expiration of the ten days. If the party were within the ten days he could as well serve his notice as apply for extension in the majority of cases, although it is, perhaps, conceivable that there might be some rare cases in which a service could not be made while an application for extension could be, and the applicant has a right to contend that it was for those rare cases that the statute was made. But the language of this part of the statute is not peremptory. The section says that the notice may be served within ten days from the date of the decision appealed from. or within any additional time allowed on application to the Judge. It shall be given forty-eight hours before the hearing. On the whole, I see no reason for saying that the Judge could not, after the expiration of the ten days, extend the time.

There is authority that an order extending time will not be given ex parte after the time for appealing has expired: In re Lawrence, 4 Ch. D. 139, but in that case the Court, as I understand, merely directed the applicant to serve notice of his motion, and the same thing was done in effect in this case by the arrangement that the party against whom the ex parte order had been taken should be heard on the merits of the application therefor on January 18th, after which hearing an order was made which seems to be an order in the nature of a confirmation of the ex parte order for the extension to January 5th. This order was made on the 15th February, and on the 19th February the appellant gave notice of a hearing of the appeal to be had on the 22nd February. On the following day (20th February), and while the Judge of the County Court was considering the objections taken by Mr. Whitman to his jurisdiction the latter made his affidavit on which to found the present application, which is based on the section requiring the appellant to prosecute his appeal