In re Dunlop Hotel / Quinn v. Guernsey

perty as any reasonable person should expect, in the circumstances in which the testator was placed, and remedies what the first will, I imagine, discloses a seeming want of generosity on the part of the testator, possessed of so large an estate, when dealing with the amounts left to his brother and sisters, unless of course they were each and all wealthy people.

On such assumption the last will, I submit, clearly should not be invaded and nullified by such evidence as respondent gives and produces to help him when he is getting such handsome treatment as it gives him.

Of course I think he is in his accounting to be entitled to any reasonable commission and expenses for work done under the power of attorney as if a stranger doing it thereunder and liable for interest on that he is found accountable for from the date of the testator's death.

IN THE MATTER OF THE AUTHORIZED ASSIGN- MENT OF HOTEL DUNLOP, LTD., ETC.

PAUL C. QUINN

HERBERT GUERNSEY

.....

APPLICATION for special leave to appeal under sec. 74 (3) of The Bankruptcy Act from a judgment of the Supreme Court of New Brunswick. Application granted. H. A. Porter for the application.

C.J.C.-This is an application for special leave to appeal under s. 74 of The Bankruptcy Act from the judgment of the Supreme Court of New Brunswick delivered by Grimmer J., reversing the judgment of Barry C.J.K.B., sitting as a judge in bankruptcy.

Barry C.J.K.B. had held the insolvent to be a " trader " within the meaning of s. 47, added to the C.S.N.B., 1903, c. 153, Respecting Landlords and Tenants, by 30 of the New Brunswick Statutes of 1924. He accordingly restricted the landlord's priority over general creditors to three months' rent. The appellate court, being of the opinion that the insolvent was not a " trader " within the meaning of the New Brunswick statute, held that the landlord was entitled to priority for his entire claim for rent amounting to upwards of $3,000, but, inasmuch as the estate of the bankrupt was inadequate to meet that claim, directed that the- trustee should pay over to the landlord all the moneys in his hands received from the sale of the estate less the sheriff's costs of a seizure under execution, amounting to $243.31, the balance payable to the landlord being $2,256.69, " without deducting therefrom any costs or charges of the sale or otherwise"; and no costs of the appeal were allowed.

The questions as to whether an hotel-keeper is a "trader " and as to the extent of the landlord's rights in New Brunswick under an assignment in bankruptcy seem to me to be of sufficient general importance and open to sufficient doubt in view of the conflicting judgments below, 'to warrant the granting of special leave to appeal. ' Such leave will accordingly be granted; and the costs of this application will be costs in the appeal.