APPLICATION for leave to appeal from the judgment of the Supreme Court of New Brunswick under the Winding-up Act or in the alternative from the judgment of Mr. Justice McLeod, ordering the appellant company to be wound up and appointing a liquidator, without an appeal being first had to the Supreme Court of New Brunswick en bane.
Teed K.C. for the application.
Pugsley K.C. contra.
T)AVIrs J.-This was an application to me under the 76th section of the Winding-up Act of the Dominion for leave to appeal from a judgment of the Supreme Court of New Brunswick dismissing an appeal to that court from an assumed judgment or order made by Mr. Justice McLeod relating to the windingup of this company. The motion was, in the alternative, for leave to appeal per saltum from the order of
Is Mr. Justice McLeod dated the 15th day of September, sULIEE ordering and directing the winding up of the company, or for leave to appeal from the previous judgment of J. the supreme Court of the 12th September.
As a matter of fact Mr. Justice McLeod made no formal order in the matter of the winding-up proceedings until after the appeal court of New Brunswick had given their judgment. In fact he declined to do so, stating at the close of his opinion that:
When the matter, therefore, came before the Supreme Court of New Brunswick, it was more in the nature of a reference than in the nature of an appeal.
If I granted an appeal from their judgment it would seem to me to be a purely academic one. I am of opinion, under the 76th section of the Act, that leave to appeal per saltun cannot be allowed, and as there was no formal judgment given by Mr. Justice
McLeod before the 15th September, from which an appeal could be taken to the Supreme Court of New
Brunswick, I do not think I can grant leave to appeal from the judgment or order made by the latter court on the 12th September.
As a matter of fact, the judges in the Supreme Court of New Brunswick were equally divided, and the order made was "that this appeal drop and be dismissed, the court being equally divided."
In my opinion the proper course is for the parties desiring to appeal to take an appeal out from the formal order for winding up, signed by Mr. Justice McLeod, of the 15th September, to the Supreme Court of New Brunswick, and apply subsequently to a judge Co. this court for leave to appeal from the disposition J. that court may make on the appeal to it.
The application, therefore, will be dismissed with costs, and as the case presents very special features which, in my judgment, justify special counsel in attending, J fix the costs at $50.
On the merits of the case I desire to be understood as expressing no opinion whatever.