APPEAL from a judgment of the Supreme Court of Nova Scotia, maintaining the decree or judgment of the Court of Wills and Probate for the county of Lunenburg, N. S., upholding the validity of the last will and testament of Beamish Murdock, deceased.
Mr. W. F. MacCoy, for respondent, moved to quash the appeal, on the ground that the Supreme Court of Canada had no jurisdiction to hear the cause, because the Court of Probate, where the cause originated in Nova Scotia, is an Inferior Court, (R. N. c. 90); and SAI contended that under the 17 section of the Supreme and Exchequer Court Act, an appeal does not lie in cases in which the Court of original jurisdiction is not a Superior Court, and cited Hilliard on new trials (1); THE CIEF
I do not thinx there can be any doubt in this case. The statute puts it beyond all doubt that the cause must originate in a Superior Court in the Province, then go to the highest Court of final resort, and then here. In no other case will an appeal lie; except, of course, when brought under see. 27 of The Supreme and Exchequer Court Act, allowing an appeal by consent of parties direct from a Superior Court of original jurisdiction, or when brought in a criminal case under sec. 49 of the Act. The Court of Probate from whose decision the appellant now appeals is in every sense of the word an Inferior Court. The proceedings before that Court are entirely different from those of a common law court, and are subject to a writ of prohibition from the Supreme Court of Nova Scotia.
The appeal should be quashed.
and J., concurred.
J.:- I agree with the judgment of the Court that the appeal should be quashed, but I do not wish it to be understood that I concur with the remarks of the Chief Justice, that an appeal will lie from a Superior Court