The opinion
On the Merits.
I have but little to say on the merits, believing that upon this appeal we have no more authority to consider the merits than to have taken original jurisdiction.
The evidence in the record consists only of ex parte affidavits; no-witness was cross-examined and these depositions were filed upon the issuance of the rule nisi. Neither the judge a quo, nor the plaintiffs, nor their attorneys seem to have regarded them as intended for a trial on the merits of the question of their own title to office. The majority of this court have decided to use them to determine the question of title to an office in no manner connected with the title of the members of the board. Field uses by this decision evidence previously unknown to him and his witnesses have to undergo no cross-examination.
A matter of fact apparent on the face of the transcript is that there was no trial on the merits in the court a qua. This, then, is the-original trial on the merits/ This court has no original jurisdiction, except in habeas corpus cases. How can we safely deduce a conclusion-from these affidavits 9 The witnesses testified for a particular purpose. The court applies the evidence-to a different question. Non constat that this testimony would have been the same on the trial of the merits,, as cross-examination might have reconciled all contradictions.
Without analyzing the affidavits in detail, suffice it to say, that under article 906 of the Code of Practice, which provides, “ but if the court-shall think it not possible to pronounce definitely on the cause in the- , state in which it is, either because the parties have failed to adduce-necessary testimony or because the inferior court refuse to receive it or otherwise, it may, according to circumstances, remand the cause to the-lower court with instructions as to the testimony which it shall receive-to the end that it may decide according to law,” the case, in my opinion, should be remanded, if not dismissed for want of jurisdiction. 6 N. S. 319; 6 N. S. 635.
In the case of Merchants’ Insurance Company v. Barroso, Carleton, J.,. said: “We do not feel altogether satisfied, therefore, to pronounce definitely upon the point in question in the present state of the proceedings, but think the case should be sent back for further proceed *35 ings, upon both the law and the facts of the case.” See numerous cases cited under article 906, Fuqua’s Code of Practice.
If this caution is the established rule where there is other than prima facie evidence in the record, a fortiori, it should not be deviated from, where the record contains only prima facie evidence.