Bradshaw v. Foreign Mission Board

OF

APPELLANT* *Feb JACOB BRADSHAW, DECEASED (PLAIN- -'

*My . TIFF) .................................................

ANI)

THE FOREIGN MISSION BOARD OF

THE BAPTIST CONVENTION OF

THE MARITIME PROVINCES (DE- - N FENDANT) ..............................

J

APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK.

V. c. 4, 85 (N.B.), relating to proceedings in equity, provides that in an equity suit "either party may apply for new trial to the judge before whom the trial was held."

Held, reversing the decision of the Supreme Court of New Brunswick, Taschereau J. dissenting, that such application need not be made before the individual before whom the trial had but could made to a judge exercising the same jurisdiction.

Therefore, where the judge in equity who had tried a resigned his an application for a new trial could be made to his successor. Fovtner v. Figes Sim. 319) followed.

APPEAL from a decision of the Supreme Court of New Brunswick affirming the ruling of the Judge in Equity who held that he had no jurisdiction to grant a new trial in the case.

The sole question for decision on this appeal wab whether or not the present Judge in Equity, Mr. Justice Barker, could hear an application for a new trial, the former trial having been had before his predecessor Mr. Justice Palmer. The decision of this question depended on the construction to be placed on 53 Vic. ch. 4, sec. 85, which provides that in an equity suit " either party may apply for a new trial to the judge before whom the trial was had."

PRESENT:-Sir Henry Strong C.J., and Taschereau, Gwynne, Sedgewick and King JJ.

Mr. Justice Barker refused to hear the application holding that the statute authorized it to be made before no judge but Mr. Justice Palmer. His decision was aflirmed by the full court.

The plaintiff then appealed to this court.

The court will not interfere on a mere matter of procedure.

Gladwin v. Cummings

As to the merits see Armstrong v. Armstrong Hodge v. Reid

JUSTICE.-This suit was brought in the Supreme Court in Equity of the province of New Brunswick, and on the cause coming on for hearing before Mr. Justice Palmer, then the Judge in Equity, certain issues were directed by that learned judge to be tried by a jury. The jury by a majority verdict found the issues in favour of the respondent. The appellant moved for a new trial before Mr. Justice Palmer. Afterwards and before the hearing of the motion, Mr. Justice Palmer resigned his office as a judge of the Supreme Court of New Brunswick. By Act of the legislature of New Brunswick, 57 Vic., chap. 7, it was enacted:

And it was further enacted:

Under the authority of this Act the judges of the Supreme Court, by order duly made, assigned one of their number, Mr. Justice Barker, to attend specially to business on the equity side of the court. After the passing of this Act and after the making of the order VE assigning Mr. Justice Barker to act as equity judge, a motion was made to him for a new trial in this case. This motion was opposed by the counsel for the respondent on the ground that, under the 85th section, cap. Justice. Acts 1890, relating to practice and proceedings in the Supreme Court in Equity, which enacts that trial could only made the judge before whom the trial was had and that Mr.

Justice Barker could not hear the application for that

The learned judge gave effect to the objection, determined that he had no jurisdiction, and refused to entertain the application for a new trial.

From this order the appellant appealed to the Supreme Court

New Brunswick, which court (Mr. Justice Hanington dissenting) dismissed the appeal. From this judgment the present appeal is brought.

I am unable to agree in this conclusion; on the contrary I entirely concur with Mr. Justice Hanington both in the conclusions at which he arrived and the reasons he has given therefor.

Withcut authority I should have thought that such a very inconvenient construction as that adopted by the learned judges of the Supreme Court could hardly have been sustained.

The result of the decision of the where a trial of issues in an equity suit had taken place, and the judge who tried them had either died or resigned before a new trial was moved for, there could be no new trial. An intention to enact a law leading to such a failure of justice ought not to be Justice. attributed to the legislature except on the strongest expressions and only in the absence of a possibility giving any other meaning to the language used. I see no difficulty in giving to the words used a sensible meaning which would prevent any such inconvenient and unjust consequence as would follow in the present case if the order now appealed against should stand. In my opinion the judge referred to in the statute before whom the new trial is to be moved for does not mean the same natural person as the judge before whom the trial took place, but the person filling the same office and exercising the same jurisdiction. No reason can be suggested why the motion should be necessarily made to the person who presided at the trial, whilst there was a good reason why the jurisdiction should be assigned to the judge in equity whoever he might be, namely, that the motion should be made to that judge and not to the Supreme Court in banc. I think this was the intention of the legislature and I should have come to that conclusion even in the absence of authority. The case of Foolner v. Figes cited by Mr. Justice Hanington is however a conclusive authority in support of his view. A motion was made before Vice Chancellor Sir Lancelot Shadwell for a new trial of an issue which had been directed by 8ir John Leach, when Vice Chancellor. Sir John Leach had been afterwards and before the motion was made, promoted to the office of Master the Rolls. There was a general order of the court which directed that every application for a new trial should be made to the judge who directed the issue, and the question was raised whether the motion ought ~ not to be made before the Master of the Rolls. But the VE Vice Chancellor said that " the meaning of the order was that the motion should be made before the same jurisdiction though the judge might have been removed This case seems to me directly in point, for I cannot adopt suggestion that any distinction between it and the present case is to be made because we are here construing a section of a statute whilst in Footner v. Figes the question depended on the interpretation of a general order.

Such orders are always construed the same principle as statutes.

The appeal must be allowed.with costs and the cause remitted with a declaration that the present learned judge in equity has jurisdiction to hear the motion for a new trial.

J.-I am of opinion that this appeal should be dismissed.

This statute may be absurd but fortunately we have not to remedy all the absurdities to be found in the statute-book.

I am against judicial legislation. Then this is a question of practice and procedure, and, as we held lately again in Arpin v. Merchants Bank one we should not interfere with. J.-I concur in the construction put upon the statute by Mr. Justice Hanington in the court below, and so am of opinion that the learned judge in equity had jurisdiction in the matter. The appeal iust therefore be allowed with costs and the case remitted to him to exercise such jurisdiction.

and JJ. concurred.'

Appeal allowed with costs.